Marqus Stevenson v. City of Seat Pleasant, MD
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 8:09-cv-01791-RWT. [999301186]. [12-2047]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2047
MARQUS L.
HOWARD,
STEVENSON;
GARY
L.
BARNETT;
CHRISTOPHER
T.
Plaintiffs – Appellants,
and
KIRK BOND, JR.,
Plaintiff,
v.
CITY OF SEAT PLEASANT, MARYLAND; LOWERY, Officer, Badge No.
3384, in both his official and individual capacities; ADEY,
PFC, Badge No. 2712, in both his official and individual
capacities; PRINCE GEORGE'S COUNTY, MD,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09cv-01791-RWT)
Argued:
October 30, 2013
Decided:
February 21, 2014
Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.
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Affirmed
in
part,
reversed
in
part,
and
remanded
with
instructions by published opinion.
Judge Floyd wrote the
opinion, in which Judge Diaz and Judge Anderson joined.
Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER, PLLC,
Washington, D.C., for Appellants.
Shelley Lynn Johnson, PRINCE
GEORGE'S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland;
Victoria M. Shearer, KARPINSKI, COLARESI & KARP, PA, Baltimore,
Maryland, for Appellees.
2
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FLOYD, Circuit Judge:
This
appeal
comes
to
the
Court
after
what
the
district
court described as “a rather long and tortured factual history.”
Several
orders
judgment;
are
denial
Civil Procedure
on
of
appeal:
a
59(e);
motion
and
dismissal;
pursuant
denial
of
Federal Rule of Civil Procedure 60(b).
a
grant
to
of
Federal
motion
summary
Rule
of
pursuant
to
As explained in greater
detail below, we affirm in part, reverse in part, and remand
with instructions.
I.
A.
According to the complaint, in the early-morning hours of
July 8, 2007, police officers assaulted Marqus Stevenson, Gary
Barnett,
and
Christopher
Howard
(collectively,
“Appellants” 1)
outside of a nightclub in Prince George’s County, Maryland (the
“County”).
Among
the
Appellants claim that the attack was unprovoked.
officers
present
at
the
altercation
were
Officer
LaVance Lowery of the City of Seat Pleasant, Maryland (“Seat
Pleasant”),
and
Officer
Rickie
Adey
1
of
the
County.
Officer
A fourth individual, Kirk Bond, was also assaulted. Bond
was a named plaintiff in the complaint but was dismissed with
prejudice from the case after he failed to participate in
discovery.
3
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Lowery was the only Seat Pleasant officer present, but there
were
multiple
Appellants
County
were
able
officers
to
present.
identify
which
Although
none
individual
of
officers
assaulted them, it is undisputed that Officer Lowery arrested
Stevenson.
The merits of that arrest, however, are contested.
On July 8, 2009, Appellants sued Officer Adey and Officer
Lowery
in
their
official
and
individual
capacities
and
the
County and Seat Pleasant on the theory of vicarious liability.
Although
police
Appellants’
assault,
officers
those
when
complaint
mentions
describing
officers
were
the
not
other
events
named
as
unidentified
surrounding
defendants.
the
The
complaint contained six counts: Excessive Force/Police Brutality
(“Excessive
Force”),
Battery,
Intentional
Infliction
of
Emotional Distress, False Arrest, a count under 42 U.S.C. § 1983
for Deprivation of Civil Rights, and a count under Articles 24
and 26 of the Maryland Constitution.
The defendants each moved
for partial or total dismissal of the counts against them, which
Appellants
counts
did
not
remained:
as
oppose. 2
to
After
Officer
dismissal,
Adey,
the
Excessive
following
Force
and
Battery; as to the County, the Maryland constitutional count;
2
Appellants’ counsel stated at oral argument that he did
not oppose the motions to dismiss due to his inability to make
certain submissions and representations to the district court at
that time. The Court appreciates this honesty and candor.
4
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and as to Officer Lowery, the § 1983 count.
Seat Pleasant were dismissed.
All counts against
As is relevant for purposes of
this appeal, the § 1983 count states as follows:
35.
Plaintiffs further allege that
defendants Lowery and Adey, with deliberate
indifference to and reckless disregard for
the safety and well-being of the plaintiffs,
and in violation of the 4th and 5th
Amendments to the Constitution, did on
July 8, 2007,
commit
or
allow
to
be
committed
an
unreasonable
seizure
which
deprived
the
plaintiffs
of
their
Constitutional rights without affording them
due process of law.
36.
As a direct and proximate result
of the unreasonable actions of defendants
Lowery and Adey, . . . Marqus L. Stevenson
[was] subjected to an unlawful seizure when
[he was] arrested without probable cause and
all of the plaintiffs were subjected to an
unreasonable seizure when they all were
subjected to unreasonable and unwarranted
force.
Officer Adey, Officer Lowery, and the County (collectively,
“Appellees”)
subsequently
Appellants opposed.
motions
on
December
moved
for
summary
judgment,
which
The district court held a hearing on the
21,
2010,
at
which
time
it
granted
Appellees’ motions in their entireties except as to the § 1983
count against Officer Lowery by Stevenson.
As to the other
counts, the district court determined that there was no credible
evidence to show that Officer Adey and Officer Lowery assaulted
any of Appellants and, absent such a showing with respect to
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Officer Adey, the County could not be liable on the theory of
vicarious liability.
following
at
the
Finally, the district court stated the
summary
judgment
hearing
with
respect
to
Appellants’ theory of bystander liability:
Bystander liability was not pled in this
case. There was no pleading indicating that
an officer who had control of the situation
observed
people
in
violation
of
the
recognition of that as a cause of action and
failed to do something about it.
And to
allow this to be pled and asserted for the
first time in response to a Summary Judgment
motion, when it hasn’t been pled and hasn’t
been explored in discovery, is not going to
be considered by the Court.
Following
the
hearing,
the
district
court
entered
a
written
order on December 22, 2010, respecting summary judgment.
On January 13, 2011, Appellants moved pursuant to Federal
Rule of Civil Procedure 59(e) to alter or amend the district
court’s ruling on summary judgment.
Specifically, Appellants
contended that, inter alia, they had sufficiently stated a cause
of action for bystander liability.
Appellants’ motion on May 19, 2011.
The district court denied
In doing so, the court
stated that it “does not dispute that bystander liability is a
cognizable theory under § 1983.
However, [Appellants] utterly
failed to plead this theory or otherwise provide fair notice
to . . . [Appellees] that they sought liability on this theory.”
A jury trial was held from May 31 to June 2, 2011, on the
sole count of Stevenson’s § 1983 claim against Officer Lowery.
6
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Officer
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Lowery
moved
for
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judgment
at
the
end
of
Stevenson’s
presentation of the case and again after he presented his own
case, and the district court reserved judgment on both motions.
Then, during the rebuttal closing argument, Stevenson’s attorney
mentioned
bystander
objected.
The district court allowed the reference to bystander
liability,
and
the
liability,
case
was
and
Officer
submitted
to
Lowery’s
the
attorney
jury.
During
deliberations, the jury submitted the following question to the
court: “Does excessive force require contact?
Or if a police
officer does not intervene in the [use of] excessive force is
that consider[ed] excessive force?”
The court then brought the
jury back into the courtroom, instructed the jury on bystander
liability, and allowed Officer Lowery to sur-rebut Stevenson’s
argument.
The
jury
violated
Stevenson’s
ultimately
found
constitutional
that
rights
by
Officer
using
Lowery
excessive
force and awarded to Stevenson damages in the amount of $36,000.
After the trial, Officer Lowery moved for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50(b)
on the grounds that bystander liability had not been pleaded and
was improperly injected into the case at closing argument.
district
January
court
12,
held
2012,
a
at
hearing
which
on
time
Officer
the
Lowery’s
court
The
motion
determined
on
that
paragraphs 35 and 36 of the complaint did sufficiently state a
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cause of action for bystander liability, thus changing course
from its ruling at summary judgment.
The court stated:
With the 20/20 vision of hindsight, I
believe that I probably overstated things in
my May 2011 ruling . . . in concluding that
[Appellants]
utterly
failed
to
plead
[bystander
liability]
because
they
did
indicate in the relevant paragraph of the
complaint that the defendants, . . . with
deliberate
indifference
to
and
reckless
disregard for [the] safety and well-being of
[Stevenson] . . . did, on July 8, 2007,
commit
or
allow
to
be
committed
an[]
unreasonable seizure . . . . I think with
the 20/20 vision of hindsight I would have
to say that [bystander liability] was pled.
.
.
.
I believe that I have made an error,
and I would rather fix it myself than have
the Fourth Circuit do it.
Although Officer Lowery did not ask for a new trial in his
motion, the district court granted Officer Lowery’s motion and
ordered a new trial pursuant to its authority under Rule 50(b).
The
court
Bystander
stated
that,
Liability
will
“at
the
new
be
front
and
trial,
the
center.”
theory
Prior
to
of
a
second trial, however, Officer Lowery and Stevenson reached a
settlement agreement.
On May 18, 2012, Appellants moved pursuant to Federal Rule
of Civil Procedure 60(b) to vacate the district court’s May 19,
2011 order as it pertained to bystander liability.
Appellants
argued
post-trial
that,
in
light
of
the
district
8
court’s
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determination
liability,
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that
each
they
of
had
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sufficiently
Appellants
was
pleaded
entitled
to
bystander
a
trial
for
bystander liability against Officer Adey and the County, and
Howard and Barnett were also entitled to a trial for bystander
liability against Officer Lowery.
The district court denied
Appellants’ Rule 60(b) motion on the grounds that “there is no
mistake or injustice that justifies vacating the May 19, 2011
order” and because the Rule 60(b) motion was not timely filed.
On
this
latter
point,
the
district
court
ruled
that
the
Rule 60(b) motion was effectively a motion to vacate the written
summary
judgment
order—dated
December
22,
2010—and
that
the
one-year limitations period applicable to Rule 60(b)(1) motions
had expired.
On
August 6,
2012,
the
district
court
entered
an
order
respecting Officer Lowery and Stevenson’s settlement agreement
and dismissing all claims.
Appellants subsequently timely filed
a notice of appeal pertaining to (1) the district court’s grant
of Appellees’ unopposed motions to dismiss; (2) the grant of
summary
judgment
to
Appellees;
(3) the
denial
of
Appellants’
Rule 59(e) motion; and (4) the denial of Appellants’ Rule 60(b)
motion.
This Court has jurisdiction over the appeal pursuant to
28 U.S.C. § 1291.
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B.
Before reaching the merits of the several orders on appeal,
we must first sort out what issues remain before the Court.
Because none of the orders on appeal either (1) adjudicated “all
the
claims
parties”
or
or
the
rights
(2) included
and
an
liabilities
“express[]
of
.
.
.
all
determin[ation]”
the
that
there was no just reason for delaying final judgment, each of
the orders listed in Appellants’ Notice of Appeal did not become
ripe for appeal prior to the district court’s August 6, 2012
order dismissing all claims against Officer Lowery; thus, each
order is properly before the Court from a procedural standpoint.
See Fed. R. Civ. P. 54(b); see also Fox v. Balt. City Police
Dep’t, 201 F.3d 526, 530 (4th Cir. 2000) (“We lack jurisdiction
to review a district court's order unless that order constitutes
a ‘final’ judgment. . . . Ordinarily, a district court order is
not
‘final’
until
it
has
resolved
all
claims
as
to
all
parties.”).
Appellants, however, presented no arguments in their brief
against the district court’s order granting Appellees’ and Seat
Pleasant’s unopposed motions for partial and total dismissal.
Accordingly, even though Appellants listed the February 17, 2010
dismissal order in their Notice of Appeal, Appellants waived any
challenge regarding the dismissal of all counts against Seat
Pleasant,
all
counts
but
the
§
10
1983
count
against
Officer
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Lowery, all counts but the Excessive Force and Battery counts
against
Officer
Adey,
and
all
counts
constitutional count against the County. 3
Mortg.
Corp.,
109
F.3d
969,
973–74
but
the
Maryland
See Canady v. Crestar
(4th
Cir.
1997)
(issues
raised in notice of appeal but not briefed on appeal are deemed
waived).
3
Even though Appellants did not challenge the motions to
dismiss, we note that the district court nevertheless has an
obligation to review the motions to ensure that dismissal is
proper.
See Pomerleau v. W. Springfield Pub. Sch., 362 F.3d
143, 145 (1st Cir. 2004) (“When deciding a 12(b)(6) motion, the
mere fact that a motion to dismiss is unopposed does not relieve
the district court of the obligation to examine the complaint
itself to see whether it is formally sufficient to state a
claim. This obligation means that a court may not automatically
treat a failure to respond to a 12(b)(6) motion as a procedural
default.” (citation and internal quotation marks omitted)); see
also Webb v. Morella, 457 F. App’x 448, 452 n.4 (5th Cir. 2012)
(“The district court granted the motion to dismiss the complaint
under Rule 12(b)(6) because it was ‘unopposed.’ The Federal
Rules of Civil Procedure, however, do not, by their own terms,
require a party to file a response in opposition to a motion to
dismiss. Accordingly, the district court improperly granted the
motion to dismiss for failure to state a claim solely because
the [plaintiffs] failed to oppose the motion.” (citation
omitted)); cf. Robinson v. Wix Filtration Corp., 599 F.3d 403,
409 n.8 (4th Cir. 2010) (“[I]n considering a motion for summary
judgment, the district court ‘must review the motion, even if
unopposed, and determine from what it has before it whether the
moving party is entitled to summary judgment as a matter of
law.’” (quoting Custer v. Pan Am. Life Ins. Co., 12 F.3d 410,
416 (4th Cir. 1993))).
Here, although the district court’s
written order effecting dismissal did not comment on the merits
of the motions to dismiss, the disrict court stated at the
summary judgment hearing that it granted the dismissal motions
for the stated reasons.
Subject to certain misstatements of
law, see infra note 4, we conclude that dismissal for the stated
reasons was proper.
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The remaining three orders on appeal—summary judgment, the
denial
of
Appellants’
Rule
59(e)
motion,
and
the
denial
of
Appellants’ Rule 60(b) motion—present a host of issues that we
consider
in
turn,
beginning
with
the
sufficiency
complaint with respect to bystander liability.
of
the
Although the
standards for reviewing the aforementioned orders are different,
compare Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en
banc)
(decision
on
summary
judgment
reviewed
de
novo),
with
Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir.
2010) (decision on Rule 59(e) motion reviewed for an abuse of
discretion), and Eberhardt v. Integrated Design & Constr., Inc.,
167 F.3d 861, 869 (4th Cir. 1999) (decision on Rule 60(b) motion
reviewed for abuse of discretion), Appellants’ Notice of Appeal
evinced
a
clear
intent
to
review
the
itself, and thus our review is de novo.
147
F.3d
307,
postjudgment
310–11
motion
in
(4th
Cir.
the
1998)
notice
of
summary
judgment
order
See Brown v. French,
(“[D]esignation
appeal
is
of
adequate
a
to
support a review of the final judgment when the intent to do so
is clear.”).
II.
This
Court
recognizes
a
cause
of
action
for
bystander
liability “premised on a law officer’s duty to uphold the law
and
protect
the
public
from
illegal
12
acts,
regardless
of
who
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commits them.”
Randall v. Prince George’s Cnty., 302 F.3d 188,
203
2002).
(4th
Cir.
To
succeed
on
a
theory
of
bystander
liability, a plaintiff must demonstrate that a law-enforcement
officer “(1) [knew] that a fellow officer [was] violating an
individual’s
constitutional
rights;
(2)
ha[d]
a
reasonable
opportunity to prevent the harm; and (3) cho[se] not to act.”
Id. at 204 (footnote omitted).
As quoted in its entirety above
and stated in relevant part here, paragraph 35 of the complaint
alleges that Officer Lowery and Officer Adey “did on July 8,
2007, commit or allow to be committed an unreasonable seizure
which
deprived
the
plaintiffs
of
their
Constitutional
without affording them due process of law.”
rights
(Emphasis added.)
Appellants maintain on appeal that this language sufficiently
states
a
cause
of
action
for
bystander
liability,
whereas
Appellees contend that the district court erred in determining,
post-trial,
that
bystander
liability
had
been
sufficiently
pleaded the entire time and that they were put on notice of
Appellants’ claim.
A.
In general, whether a complaint sufficiently states a claim
upon which relief can be granted is governed by the Supreme
Court’s plausibility pleading framework.
See Ashcroft v. Iqbal,
556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544
13
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(2007).
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Both Iqbal and Twombly, however, pertain to whether a
complaint contains sufficient factual matter to proceed beyond
dismissal.
See Iqbal, 556 U.S. at 678 (“A claim has facial
plausibility
allows
the
when
court
the
to
plaintiff
draw
the
pleads
factual
reasonable
content
inference
that
that
the
defendant is liable for the misconduct alleged.”); Twombly, 550
U.S. at 570 (“[W]e do not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief that
is plausible on its face.”).
dismiss
the
§
factual
detail.
1983
count
Rather,
of
Here, none of Appellees moved to
the
Officer
complaint
Lowery
for
insufficient
answered
the
§
1983
count; Officer Adey moved to dismiss the § 1983 count on the
theories that the arrest of Stevenson was lawful and that the
Fifth Amendment applies to the federal government only and not
to
state
governments
or
political
4
subdivisions
thereof 4;
and
On this latter theory, we note that only certain
provisions of the Fifth Amendment do not apply to the individual
States.
See Albright v. Oliver, 510 U.S. 266, 272 (1994)
(citing Hurtado v. California, 110 U.S. 516, 538 (1884)
(requirement of indictment by grand jury for capital crimes not
applicable to the States)); but see Benton v. Maryland, 395 U.S.
784, 794 (1969) (prohibition on double jeopardy applicable to
the States); Malloy v. Hogan, 378 U.S. 1, 6 (1964) (privilege
against self-incrimination applicable to the States). Moreover,
Officer Adey’s motion to dismiss references an “equal protection
clause of the Fifth Amendment.” To clarify, there is no express
equal protection clause in the Fifth Amendment, as there is in
the Fourteenth Amendment.
Detroit Bank v. United States, 317
U.S. 329, 337 (1943). However, the Supreme Court has been clear
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the County moved for dismissal on the theory that, pursuant to
Monell v. Department of Social Services, 436 U.S. 658 (1978),
municipal
governments
constitutional
cannot
violations
be
held
committed
vicariously
by
their
liable
employees
for
unless
the employees were acting pursuant to a “policy or custom,” and
the County does not endorse a “policy or custom” whereby its
employees violate others’ constitutional rights.
Further, Appellees did not raise the sufficiency of the
pleading in the § 1983 count with respect to bystander liability
until their reply to Appellants’ opposition to the motions for
summary judgment.
And even then, Appellees did not argue that
the complaint contained insufficient factual matter; rather, in
written reply and at the summary judgment hearing, Appellees
contended only that they were never put on notice of Appellants’
legal theory of bystander liability.
Accordingly, the factual
pleading
is
here,
framework
connect
as
of
Appellees’
the
dots
in
Twombly–Iqbal
argument
their
is
that
largely
inapplicable
Appellants
complaint—not
that
the
failed
to
complaint
that “the Due Process Clause of the Fifth Amendment forbids the
Federal Government to deny equal protection of the laws.” Vance
v. Bradley, 440 U.S. 93, 94 n.1 (1979); see also Weinberger v.
Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (“The Court’s approach
to Fifth Amendment equal protection claims has always been
precisely the same as to equal protection claims under the
Fourteenth Amendment.”).
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itself contains insufficient factual information from which to
draw reasonable inferences.
B.
Appellees
raise
two
principal
arguments
against
the
district court’s post-trial ruling that bystander liability was
sufficiently pleaded in the § 1983 count (paragraphs 35 and 36)
of the complaint.
We address these arguments in turn, reviewing
the district court’s ruling de novo.
See Teachers’ Ret. Sys. v.
Hunter, 477 F.3d 162, 170 (4th Cir. 2012) (standard of review
regarding the legal sufficiency of a complaint).
1.
Appellees’ first challenge to the complaint’s sufficiency
with
respect
[‘bystander
to
bystander
liability’]
liability
appeared
is
nowhere
that
in
“the
the
phrase
complaint.”
Appellants, however, were not required to use any precise or
magical words in their pleading.
See, e.g., Sansotta v. Town of
Nags Head, 724 F.3d 533, 548 (4th Cir. 2013) (“We see no reason
why the [plaintiffs] needed to use any special phrasing in their
complaint, as this complaint gave the [defendant] ‘fair notice’
of the [plaintiffs’] claims.”); E.I. du Pont de Nemours & Co. v.
Kolon
Indus.,
(rejecting
the
Inc.,
637
argument
F.3d
that
435,
a
447–48
cause
16
of
(4th
Cir.
2011)
action
for
price
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discrimination had not been sufficiently pleaded “because [the
counterclaimant] did not use the phrase ‘price discrimination’
in its Counterclaim”); see also Okoli v. City of Baltimore, 648
F.3d
216,
complaints
224
n.8
(4th
Cir.
need
not
include
2011)
‘magic
(“[S]sexual
words’
such
harassment
as
‘sex’
or
‘sexual’ to be effective.” (citing cases)); Labram v. Havel, 43
F.3d 918, 920–21 (4th Cir. 1995) (“Legal labels characterizing a
claim cannot, standing alone, determine whether it fails to meet
[the standard for notice pleading pursuant to Federal Rule of
Civil Procedure 8(a)(2)].”).
Our sister circuits have reached
the same conclusion regarding whether precise or specific words
must be present to sufficiently state a cause of action.
See,
e.g., Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 310 (6th
Cir. 2009) (“Courts may look to—they must look to—the substance
of
a
complaint's
allegations
.
.
.
.
Otherwise,
[statutory]
enforcement would [be] reduce[d] to a formalistic search through
the pages of the complaint for magic words . . . .”); United
States
v.
Davis,
261
F.3d
1,
45
n.40
(1st
Cir. 2001)
(“[Plaintiff] need not have used the magic word ‘declaratory
judgment’ in its pleading to put the defendants on notice that
its
claims
could
be
resolved
with
a
grant
of
declaratory
relief.”).
Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), is further
instructive.
There, the plaintiff sued Transportation Security
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Administration (TSA) agents pursuant to 42 U.S.C. § 1983 for
violating his First Amendment right to free speech after he was
arrested for peacefully protesting the TSA’s screening measures.
See id. at 383–84.
authority
to
Although the TSA agents lacked the official
arrest
him,
the
plaintiff
alleged
that
they
effected an arrest of him by reporting his protest to airport
police, who had the requisite authority.
Id. at 386.
The
district
stating
the
court
dismissed
the
complaint,
that
complaint “doesn’t say directly that [the plaintiff’s arrest]
was at the instruction of the TSA.”
Id. at 385 (alteration in
original) (citation and internal quotation marks omitted).
This
Court reversed, noting that “Section 1983 . . . anticipates that
a
government
official
will
be
‘responsible
for
the
natural
consequences of his actions[,]’” id. at 386 (quoting Malley v.
Briggs, 475 U.S. 335, 344 n.7 (1986)), and because “[i]t is an
undoubtedly natural consequence of reporting a person to the
police that the person will be arrested,” “it [was] logical to
assume that [the TSA agents] had a hand in [the plaintiff’s]
arrest,” id. at 386.
The same is true in this case as in Tobey—that Appellants’
complaint does not recite expressly the elements of bystander
liability as set forth in Randall does not direct the conclusion
that the complaint fails to plead a cause of action for the
same.
Appellants
alleged
that
they
18
“were
subjected
to
an
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unreasonable
seizure
when
Pg: 19 of 28
they
all
unreasonable and unwarranted force.”
and
Officer
Adey’s
undisputed
were
subjected
to
Based on Officer Lowery’s
presence
at
the
scene
of
the
altercation and the allegation that the officers “allow[ed] to
be
committed
legal
.
.
.
gymnastics
paragraphs
35
unreasonable
or
36
and
finagling
of
the
seizure[s],”
to
liken
complaint
it
requires
the
with
language
the
notion
no
of
that
Officer Lowery and Officer Adey (1) knew that fellow officers
were
violating
excessive
Appellants’
force,
(2) had
a
constitutional
reasonable
opportunity
such violations, and (3) chose not to act.
F.3d at 204.
consequence”
Officer
rights
by
to
using
prevent
See Randall, 302
In other words, it was “an undoubtedly natural
that,
Adey,
absent
other
intervention
officers
would
Appellants’ constitutional rights.
by
Officer
continue
Lowery
to
and
violate
See Tobey, 706 F.3d at 386.
2.
Appellees’ second argument that they were not put on notice
of Appellants’ bystander-liability claim is that “[a] ‘bystander
liability’ cause of action was never asserted by Appellants in
their
discovery
responses.”
We
have
reviewed
the
exhibits
submitted with Appellees’ separate motions for summary judgment
and
did
not
find
anything
in
Appellees’
interrogatories
to
Appellants or the transcripts of Appellants’ depositions where
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Appellees asked Appellants about their theories of liability for
the case.
provided
And, perhaps not surprisingly, Appellees have not
any
citations
to
instances
where
they
allege
that
Appellants were asked about the theories of liability underlying
the
case
but
liability.
complete
failed
to
provide
adequate
notice
of
bystander
At best, Appellees asked Appellants to, “Provide a
statement
of
the
facts
upon
which
you
base
your
contention that you were the victim of the use of excessive
force, stating precisely what you contend was done to you and by
whom.”
The very essence of bystander liability, however, is
premised on an individual’s passivity and nonparticipation while
another individual violates a person’s constitutional rights—not
on the bystander actively causing the harm.
F.3d
at
204
n.24
(“The
rationale
See Randall, 302
underlying
the
bystander
liability theory is that a bystanding officer, by choosing not
to intervene, functionally participates in the unconstitutional
act of his fellow officer.” (emphasis added)).
extent
that
mentioned
Appellees
bystander
claim
liability
that
in
Thus, to the
Appellants
response
to
should
their
have
discovery
inquiries, Appellees simply did not ask the correct questions.
Regardless, discovery is an exercise in fact-finding, and
it
is
the
complaint—not
depositions
or
interrogatories—that
provides “fair notice” to defendants of the allegations against
them.
See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190
20
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(4th Cir. 2010).
above
that
the
a
cause
states
Pg: 21 of 28
Thus, inasmuch as we have already determined
plain
of
language
action
of
for
the
complaint
bystander
sufficiently
liability,
whether
“bystander liability” was mentioned specifically in Appellants’
answers
and
responses
to
Appellees’
discovery
inquiries
is
inapposite of the notice issue.
For the reasons set forth above, we affirm the district
court’s
post-trial
determination
that
Appellants’
complaint,
specifically paragraphs 35 and 36, sufficiently states a cause
of action for bystander liability pursuant to 42 U.S.C. § 1983.
In doing so, however, we must therefore reverse and vacate the
district court’s summary judgment ruling to the opposite effect.
C.
Having determined that the district court erred at summary
judgment in its construction of the complaint with respect to
bystander liability, it is necessary to sort out which parties
this reversal impacts.
As noted above, the only claims that
survived dismissal were the Excessive Force and Battery counts
as to Officer Adey, the § 1983 count as to Officer Lowery, and
the Maryland constitutional count as to the County.
Of these
remaining counts, however, only the § 1983 count contains the
“allow to be committed” language that states a cause of action
for
bystander
liability.
Accordingly,
21
inasmuch
as
bystander
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liability was not pleaded in the Excessive Force and Battery
counts
(nor
do
Appellants
contend
cannot be held liable as a bystander.
otherwise),
Officer
Adey
It further follows that,
at least with respect to bystander liability, 5 the County cannot
be
held
count.
vicariously
liable
for
the
Maryland
constitutional
See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999)
(“As there are no underlying constitutional violations by any
individual, there can be no municipal liability.” (citing City
of L.A. v. Heller, 475 U.S. 796, 799 (1986))).
Appellants’ counsel argued at the summary judgment hearing
that Appellants intended to assert vicarious liability against
the County
allowed
to
for
be
all
County
committed,
officers
count,
either
constitutional
Appellants—not just Officer Adey.
constitutional
who
however,
committed,
violations
or
against
The language of the Maryland
does
not
sweep
this
broadly.
Specifically, that count states that, “Seat Pleasant and Prince
George’s County are liable on the basis of respondeat superior
for any violations of the Maryland Constitution by Defendants
Lowery and Adey that deprived plaintiffs of their rights under
Articles 24 and 26.”
(Emphasis added.)
5
Although Appellants
Appellants also challenge the district court’s grant of
summary judgment to Officer Adey on the Excessive Force and
Battery counts and the grant of summary judgment to the County
on the Maryland constitutional count.
We address these
challenges infra at Part III.
22
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were not required to list as defendants (either by name or as
John Does) all County officers who were present at the scene to
assert liability against the County for those officers’ actions,
the Maryland constitutional count must have still put the County
on
notice
of
any
claims
against
it
due
to
officers not named Adey; it plainly did not.
that
Appellants
paragraphs 1–19
officers
as
of
the
being
Appellants—into
moment.
incorporated
at
Maryland
the
actions
of
Moreover, the fact
reference
complaint—which
present
the
by
the
mention
altercation
constitutional
background
unnamed
and
County
assaulting
count
is
of
no
See, e.g., Cook v. Howard, 484 F. App’x 805, 808 n.3
(4th Cir. 2012) (noting that although “the amended complaint
also designated ‘John Does 1–100’ as defendants[,] . . . none of
the counts specifically referred to them”); Lee v. State Bd. for
Cmty. Coll., 62 F.3d 1415 (4th Cir. 1995) (unpublished table
decision)
(“In
her
promotion
issue
as
count.
[The
complaint,
factual
defendant]
[the
plaintiff]
background
was
not
on
and
addressed
not
notice
as
a
that
the
separate
failure
to
promote was a separate claim, nor did the district court address
it as such.
Consequently, we need not address this issue.”).
To summarize, the only defendant that the reversal of the
summary
judgment
impacts
is
ruling
Officer
with
Lowery
respect
because
he
to
bystander
liability
is
the
defendant
only
against whom the § 1983 count survived dismissal.
23
Accordingly,
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we
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reverse
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and
remand
this
Pg: 24 of 28
case
to
the
district
court
to
reconsider the parties’ summary judgment papers and to order
additional
potential
briefing,
liability
if
as
Howard and Barnett.
necessary,
a
regarding
bystander
to
the
Officer
Lowery’s
assaults
against
And because we determine that the district
court erred at summary judgment, we need not consider the merits
of Appellants’ motions pursuant to Rules 59(e) and 60(b) that
pertain to the same subject matter.
III.
As noted above, Appellants also appeal the district court’s
grant of summary judgment and denial of their Rule 59(e) motion
with
respect
assaults and
same.
to
Officer
the
County
Adey
as
as
being
a
principal
vicariously
actor
liable
in
the
for
the
As with the sufficiency of the complaint, we will review
the district court’s summary judgment ruling and not the order
denying the subsequently filed Rule 59(e) motion; accordingly,
our review is de novo.
See Brown, 147 F.3d 310–11.
A.
At
the
determined
Officer
summary
that
Adey
there
was
judgment
was
no
responsible
hearing,
credible
for
the
the
district
evidence
to
assaults
court
show
on
that
Howard,
Barnett, or Stevenson, or that Officer Lowery was responsible
24
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for
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the
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assaults
Pg: 25 of 28
on
Barnett. 6
Howard
or
We
say
“credible”
evidence because Appellants did submit multiple affidavits with
their
opposition
to
Appellees’
motion
for
summary
judgment.
Those affidavits—and specifically Barnett’s affidavit—were what
Appellants
principally
relied
upon
at
the
summary
judgment
hearing to show that there remained disputes of material fact
for trial.
But as the district court noted, Barnett’s affidavit
contradicted his earlier-given testimony and was “riddled with
inconsistencies.”
For example, Barnett stated in his affidavit
that he “witnessed an Officer, whose name [he] later learned was
Adey,
strike
unconscious.”
Chris
Howard
in
the
face
and
knock
[Howard]
Yet, Barnett previously stated at his deposition
that it was not until “after [Howard was knocked out] that[]
. . . Officer Adey sprung into action.”
importantly,
when
Barnett
was
(Emphasis added.)
asked
point-blank
in
More
his
deposition, “Did you see Officer Adey physically hit, touch or
come into contact with you or Mr. Stevenson or Mr. Bond or Mr.
Howard?”, Barnett replied only, “Mr. Bond.”
6
In their appeal brief, Appellants made the same arguments
against the grant of partial summary judgment to Officer Lowery
with respect to Howard and Barnett as they did in regard to the
grant of summary judgment to Officer Adey with respect to all
Appellants.
Accordingly, we need only address the grant of
summary judgment to Officer Adey to resolve the issue.
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This
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Court
has
Pg: 26 of 28
previously
referred
to
bogus
affidavits
submitted in opposition to summary judgment for the purpose of
creating disputes of material fact as “sham” affidavits.
See,
e.g., Jackson v. Consolidation Coal Co., 21 F.3d 422 (4th Cir.
1994) (unpublished table decision); see also Barwick v. Celotex
Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“If a party who has
been examined at length on deposition could raise an issue of
fact simply by submitting an affidavit contradicting his own
prior
testimony,
this
would
greatly
diminish
the
utility
of
summary judgment as a procedure for screening out sham issues of
fact.” (citation and internal quotation marks omitted)).
Here,
we recognize that the events immediately preceding the assault
on
Appellants
occurred
suddenly
and
that
Appellants
were
subjected to a great deal of stress; thus, we do not accuse
Appellants,
and
specifically
Barnett,
of
submitting
a
sham
affidavit to create a bogus material factual dispute with the
goal
of
defeating
summary
judgment.
Nevertheless,
we
must
decide this case on the record before us and, based on that
record, we cannot say that the district court erred due to the
inconsistencies
affidavit.
between
Barnett’s
prior
testimony
and
his
See Barwick, 736 F.2d at 960 (“A genuine issue of
material fact is not created where the only issue of fact is to
determine
which
of
the
two
conflicting
plaintiff's testimony is correct.”).
26
versions
of
the
Accordingly, we affirm the
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district’s
grant
of
summary
Excessive
Force
and
Pg: 27 of 28
judgment
Battery
to
counts
Officer
with
Adey
respect
on
to
the
all
Appellants and the grant of summary judgment to Officer Lowery
in his alleged role as a principal actor (i.e., one who actually
committed the assaults) on the § 1983 count with respect to
Howard and Barnett.
B.
Two corollary rulings flow from our decision to affirm this
aspect
of
the
First,
as
similarly
bystander
either
liability,
the
Battery
Appellants,
Maryland
the
court’s
supra
grant
adjudicated
because
or
County
is
Officer
also
count
of
above
Excessive
constitutional
liability.
1999);
district
not
on
in
Adey
Force
summary
is
context
not
counts
liable
the
the
judgment.
as
of
liable
for
to
pursuant
theory
of
any
to
of
the
vicarious
See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir.
note
5
and
accompanying
text.
And
second,
it
logically follows that because the district court did not err
under de novo review in granting summary judgment to Officer
Adey, Officer Lowery, and the County, the district court also
did not abuse its discretion by denying Appellants’ Rule 59(e)
motion to alter or amend the ruling on summary judgment.
27
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IV.
For the reasons set forth above, we affirm in part, reverse
in part, and remand for reconsideration of Officer Lowery’s and
Howard
and
Barnett’s
summary
judgment
papers
pursuant
to
a
framework in which bystander liability was properly pleaded.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
28
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