Professional Documents
Culture Documents
No. 11-1601
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:10-cv-00332-JFM)
Argued:
DIAZ,
Decided:
Circuit
Judges,
and
HAMILTON,
Senior
ARGUED: Olugbenga
for Appellants.
BALTIMORE
CITY
Appellees.
ON
BALTIMORE
CITY
Appellees.
PER CURIAM:
John Cook, III, individually and as administrator of the
estate of John Cook, IV (Cook), and various members of the
Cook
family
(collectively
the
Appellants),
appeal
from
the
arising
damages
statutes.
from
under
The
Cooks
death.
Marylands
Appellants
appeal
They
wrongful
numerous
also
death
sought
and
decisions
to
survival
of
the
For the
I.
For
Brockington v. Boykins,
in
the
light
most
favorable
to
the
non-moving
party.
Merchant v. Bauer, 677 F.3d 656, 658 n.1 (4th Cir. 2012).
A
straight-forward
recitation
of
the
Appellants
At
Far more
lack
any
contradicted
during
basis
by
in
undisputed
discovery.
To
say
the
record
evidence
that
the
or
in
that
the
are
record
operative
directly
developed
pleading
(the
officers
who
were
on
patrol
in
Baltimore
(J.A. 76.)
and the distance from the small concrete ledge at the base of
the fence to the highway is approximately seventy feet.
One or
Cook fell
and
he
died
at
the
scene.
After
Cooks
death,
BCPD
alleged
up
to
have
conspired
to
cover
the
circumstances
B.
Court
for
the
District
of
Maryland.
The
amended
was
brought
against
the
5
BCPD;
BCPD
Commissioner
(J.A. 70-71.)
Counts I and
III set forth claims under 42 U.S.C. 1983 and 1985 against
the
BCPD,
Commissioner
Bealefeld,
and
Colonel
Bevilaqua
for
that
officers
and
the
BCPD
that
was
its
liable
customs,
for
the
conduct
practices,
and
of
its
policies
theory
of
supervisory
and
difficult
to
liability
for
the
events
it
also
appears
that
these
the
complaint
fence
also
such
that
alleged
that
Cook
fell
Officer
from
it.
The
Howard
did
most
amended
of
the
high-fiving
racial
epithets
and
and
laughing
following
inflammatory
Cooks
language,
and
death,
engaged
used
in
participated
in
against
conspiracy
to
(J.A. 77-78.)
Officers
Howard
and
cover
up
the
events
Count
II
set
Fourth
and
Fourteenth
Amendments,
and
Counts
IV
and
C.
The
BCPD,
Proceedings Below
Commissioner
Bealefeld,
and
Colonel
Bevilaqua
claim.
The
concluding
that
the
sufficient
facts
to
district
amended
court
granted
complaint
establish
did
liability
the
not
under
motion,
allege[]
Monell
v.
after
of
[Cook]
causation,
(J.A. 11.)
disposed
of
was
killed
provide
and
therefore
basis
for
cannot,
the
as
Appellants
counts
alleged
against
the
BCPD
and
supervisory officers.
In
the
intervening
months
the
Appellants
and
Officers
(J.A. 18.)
pleadings
in
order
to
substitute
the
names
of
[BCPD
Officers] Jared Fried and Angela Choi for defendants John Does 1
and 2.
(J.A. 19.)
remaining
factual
disputes
in
the
The court
record,
but
case.
Reviewing
the
1983
and
1985
claims
against
Officers Howard and Green, the district court concluded that the
facts did not support the Appellants contention that they had
violated either Cooks or the Appellants Fourth or Fourteenth
Amendment rights.
Appellants
noted
timely
appeal,
and
we
have
II.
The Appellants raise numerous arguments that can be boiled
down to four central issues, namely, whether the district court:
(1) erred in granting the motion to dismiss Counts I and III
because
the
allegations
in
the
amended
complaint
were
to
quash
the
request
for
production
of
documents
by
misapplying
motion
to
it;
(3)
substitute
abused
its
Officers
discretion
Fried
and
in
Choi
denying
because
the
such
we
reviewed
each
of
conclude
that
the
the
parties
district
arguments
court
did
not
and
the
commit
10
A.
against
the
BCPD,
Commissioner
Bealefeld,
and
Colonel
what
advance
is
their
required
under
argument,
the
federal
notice
Appellants
rely
pleading.
heavily
To
on
the
Jackson,
dismissal
15
was
sufficiently
evidence
F.3d
(4th
inappropriate
alleged
following
Commissioner
333
facts
Cir.
because
that,
discovery,
Bealefeld,
and
1994).
the
if
would
Colonel
They
claim
amended
proven
show
Bevilaqua
complaint
with
that
that
specific
the
could
BCPD,
be
held
liable under 1983 and 1985 for the events surrounding Cooks
death.
We
review
dismissal,
de
novo
focus[ing]
only
district
on
the
courts
legal
Rule
sufficiency
12(b)(6)
of
the
and
accepting
as
true
the
well-pled
facts
in
the
Federal
Rule
of
Civil
Procedure
8(a)(2)
states
that
Curiously, the
forth
in
Twombly
and
Iqbal,
and
which
were
on
pre-Twombly
Jordan.
While
and
Iqbal
Leatherman
cases
held
that
such
primary
Instead, they
as
1983
the
Leatherman
claims
are
and
not
and
Iqbal.
decisions
As
require
we
have
more
previously
specificity
recognized,
from
these
complaints
in
Robertson v.
Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir. 2012).
Pursuant to Twombly and Iqbal, a complaint will survive a
motion to dismiss only if it contains factual allegations in
addition to legal conclusions.
U.S.
at
555.
In
addition,
the
complaint
must
Twombly,
contain
its face.
Id. at 570.
Id.
at
555.
Instead,
the
allegations
must
be
courts need not accept the legal conclusions drawn from the
facts [alleged in a complaint], and [they] need not accept as
true
unwarranted
arguments.
inferences,
unreasonable
conclusions,
or
marks omitted).
We agree with the district court that the amended complaint
does
not
satisfy
these
requirements.
The
amended
complaint
Indeed,
those
portions
the
amended
complaint.
Just
as
U.S.
at
678
(internal
quotation
marks,
alterations,
and
respect
to
Bevilaquas
liability
as
supervisory
complaints
assertions
boil
Bealefeld
down
to
and
Colonel
officers,
the
amended
contending
that
because
officers,
they
have
imputed
knowledge
of
their
Simply
put, the amended complaint does not set forth facts that raise
beyond
the
level
of
speculation
any
claim
of
entitlement
to
14
liability.
did
not
err
in
granting
the
BCPD
and
supervisory
B.
F.3d 159, 164 (4th Cir. 2011) (stating standard of review for a
15
1.
After
the
BCPD
had
Motion to Quash
been
dismissed
from
the
case,
the
BCPD
moved
to
quash
the
request
(J.A. 91-93.)
The
(J.A. 91-93.)
for
production
of
indicated
it
disciplinary/personnel
would
produce
related
non-privileged,
responsive
documents
in
It
nonits
(J.A.
16
178 n.2.)
granted
satisfied
the
motion
that
the
to
quash,
documents
stating
sought
by
that
[the
it
was
fully
Appellants]
are
Therefore, the
(J.A.
18.)
On appeal, the Appellants contend that the district court
abused its discretion in granting the motion to quash because
the ground relied upon relevance to the underlying claims
is not a proper basis to quash a subpoena served on a non-party.
They
assert
that
the
BCPD
lacked
standing
to
tell
[the
(Opening
Br.
39.)
And
they
note
that
because
but
also
of
information
that
may
lead
to
the
Federal Rule of
matter
that
parties
may
obtain
discovery
regarding
any
R. 26(b)(1).
Matter 1 v. Misc. Dkt. Matter 2, 197 F.3d 922, 925 (8th Cir.
1999) (discussing factors to be considered in discovery against
third parties, including relevance).
the
general
rules
governing
all
discovery
that
are
set
discovery
specifically.
Appellants
generally,
and
motions
to
quash
subpoenas
sought
were
directed
at
matters
related
to
the
18
dismissed
claims
against
the
BCPD.
Documents
and
records
for
ten-year
period
have
no
that
these
materials
may
have
correlation
to
the
to
discovery
of
19
Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315,
320-21 (4th Cir. 2008).
Our review necessarily focuses on the information available
to the district court at the time of its decision.
The totality
As
detailed
above,
the
Appellants
request
for
responsive
and
relevant
to
the
remaining
claims.
In
in
necessary
quash
their
to
assertion
their
conceded
the
case.
that
all
of
Furthermore,
discoverability
of
the
the
a
documents
BCPDs
small
were
motion
number
to
of
Such a
course
an
abuse
of
discretion.
See
Regan-Touhy
v.
Walgreen Co., 526 F.3d 641, 653 (10th Cir. 2008) ([W]e cannot
see how the district court abused its considerable discretion in
its
resolution
of
the
parties
discovery
disputes
given
the
that
the
district
court
acted
arbitrarily
or
2.
Motion to Substitute
and
Choi
as
party
defendants
John
Does
and
2.
contained
the
desired
substitutions.
The
proposed
that
Officer
Bradley
Officer Fried.
engaged
in
physical
altercation
with
only
remaining
claim
against
Officer
Howard
was
that
he
At the
outset, the court noted that the motion was filed seven weeks
after the October 12 deadline set in the scheduling order for
amending
the
pleadings
and
joining
parties,
and
under
the
of
good
cause.
The
court
rejected
the
Appellants
22
they
could
have
learned
the
officers
identities
before
the
(J.A.
20.)
The
Appellants
assert
the
district
court
abused
its
They maintain
determination
they
could
have
discovered
the
the district court held them to a higher bar for amendment than
Rule 15 provides, they fundamentally misunderstand the standard
by which their motion was reviewed.
That rule
See
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298-99 (4th Cir.
2008); see also OConnell v. Hyatt Hotels of Puerto Rico, 357
F.3d 152, 155 (1st Cir. 2004) (describing the interplay between
these rules).
required
to
amend
October 12 deadline.
the
pleadings
at
any
point
after
the
cause
for
the
untimely
motion
to
substitute.
Good
cause requires the party seeking relief [to] show that the
deadlines
cannot
reasonably
be
met
despite
the
partys
standard
will
not
be
satisfied
if
the
[district]
court concludes that the party seeking relief (or that partys
attorney)
schedule.
has
not
acted
diligently
in
compliance
with
the
district
judges
about
how
compelling
showing
must
be
to
Each of the
from
which
the
district
court
could
conclude
that
the
of
the
motion
to
quash
the
request
for
production
of
is
so,
in
part,
because
the
request
for
production
the
the
October
12
Appellants
amendment
were
deadline.
aware
of
the
The
record
proposed
clearly
October
12
Yet during
materials
they
production.
received
in
response
to
the
request
for
clear
directive
that
deadlines
would
be
strictly
The
not
file
timely
motion
to
amend
the
scheduling
order
26
Appellants
part,
which
the
district
court
appropriately
the Appellants did not file this case until approximately twoand-a-half years after the events in question.
officers
as
party
defendants
based
on
the
inclusion
of
officers
throughout
the
description
between
filing
suit
and
of
the
events
first
seeking
request
for
11
at
the
identities
relevant
of
to
time
they
at
least
the
events
filed
suit,
five
of
the
individuals
August
14:
Appellants
who
BCPD
had
knew
the
information
Officers
Howard,
lack
of
diligence
the
proceedings
in
the
unidentified
Appellants
individuals
knowing
involved
in
there
the
events
were
they
as-yetalleged
have
allowed
complaint.
The
them
to
Appellants,
file
and
a
to
timely
some
amendment
degree
the
of
the
dissent,
counter that until November 2010 they were not aware that named
party defendants Officer Howard and Green were not the officers
involved in the foot pursuit and that Officers Fried and Choi
were
present
at
that
time.
This
argument
goes
however,
bear
on
the
lack
of
diligence
in
to
the
It does
the
first
instance.
It is true that Officer Howards accident report appears to
have mistakenly named Officer Green as the officer involved in
the initial foot pursuit.
29
of
the
events
leading
up
to
Cooks
death.
Moreover,
as
On
(if
not
eliminate)
their
claims
with
respect
to
Officers
Indeed, Officer
14,
and
that
he
visited
her
shortly
after
Cooks
death
to
Green
present
And,
as
both
on
identified
August
discussed
14
in
Officers
their
elsewhere
Fried
responses
in
this
and
to
Choi
as
being
interrogatories.
opinion,
Officer
Howard
denied being present at the scene until after Cooks death; had
the
Appellants
questioned
Officer
Howard
for
the
purpose
of
timely
identity
of
pursued
the
additional
officers
who
information
were
actually
to
determine
involved
in
the
the
pursuit as well.
The Appellants failure to seek information from any one of
these witnesses at an earlier date meant that they could not
pursue any leads those witnesses provided in time to make a
14
31
timely amendment.
v. Colmar Storage, LLC, 494 F.3d 1293, 1299 (11th Cir. 2007)
(holding
notice
that
of
good
cause
information
did
that,
not
exist
with
where
some
movant
was
investigation,
on
would
Trustmark
Ins.
Co.
v.
General
&
Cologne
Life
Re
of
motion.
received
amendment
It
salient
speculates
information
deadline,
or
at
that
from
the
the
the
very
Appellants
BCPD
least
may
prior
any
to
motion
have
the
to
It is pure conjecture
in
the
request
for
production
15
prior
to
October
15,
But
even
its
assuming,
arguendo,
that
the
district
court
abused
only
produce
mean
the
that
requested
the
BCPD
would
have
documentsincluding
been
required
Officers
Fried
to
and
would
still
have
been
subject
to
the
higher
good
Good cause
that
they
were
nonetheless
unable
to
comply
with
the
changed
given
that
the
court
identified
four
specific
and
While
persistent
the
lack
dissent
of
theorizes
diligence
on
the
throughout
district
the
courts
post
at
60
n.22,
the
district
courts
reasoning
is
cause.
excuses
That
compliance
is,
in
considering
whether
with
scheduling
order
33
good
cause
deadline,
the
district
diligent,
court
must
though
examine
whether
unsuccessful,
in
the
movant
attempting
to
had
been
acquire
the
amend.
To
be
sure,
the
movants
conduct
in
the
period
But
the
the
courts
focus
is
appropriately
and
necessarily
on
See,
e.g., Fahim v. Marriott Hotel Services, Inc., 551 F.3d 344, 348
(5th Cir. 2008) (Good cause . . . requires a party to show
that
the
diligence
deadlines
of
the
cannot
party
reasonably
needing
the
be
met
despite
extension.)
the
(internal
of
August
14
that
could
have
led
them
to
learn
the
Yet
to
obtain
information
about
the
known
unknown
production
that
was
after
the
amendment
deadline.
The
in
full
or
part,
at
most
would
have
allowed
the
Every
we
conclude
that
the
district
courts
For this
decision
with
on
the
events
surrounding
substitute.
35
the
Appellants
motion
to
In
addition
supporting
the
to
all
district
of
the
courts
reasons
decision,
set
we
forth
are
above
also
ever
deference,
hurdle.
court
even
if
it
is
not
always
an
insurmountable
did
not
abuse
its
discretion
in
determining
that
the
Our
the
motion
to
quash
and
the
denial
of
the
motion
to
C.
When the dust settled from the earlier motions and orders
in
this
judgment
case,
Officers
as
all
to
claims
judgment
of
was
material
Howard
Green
remaining
moved
against
for
them,
summary
which
the
improper
fact,
and
because
which
if
there
resolved
remained
in
their
genuine
favor,
36
Fourth
and
Fourteenth
Amendments.
(Opening
Br.
51.)
We
disagree.
Under Federal Rule of Civil Procedure 56(a), a district
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant
is
entitled
to
judgment
as
matter
of
law.
In
Scott v.
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
DeStefano,
557
U.S.
557,
___,
129
S.
Ct.
2658,
Ricci v.
2677
(2009)
1.
Officer
arrived only
there
is
testimony.
Green
at
testified
during
the
highway
level
additional
evidence
in
the
his
deposition
after
record
Cooks
to
that
death,
support
he
and
this
above the highway after Cook climbed over it and before he fell.
Some
additional
evidence
tends
to
support
this
testimony,
with
the
district
court
that
although
there
remains
the outcome of the case, and a genuine issue exists when the
evidence would allow a reasonable jury to return a verdict for
the nonmoving party.
Durham
Airport
Auth.,
597
F.3d
570,
576
(4th
Cir.
2010)
to
different
outcomes.).
Under
this
standard,
the
that
violated
rights,
wherever
he
Cooks
was
Fourth
and
Fourteenth
As
explained
located.
Amendment
presently,
was
present
at
the
fence
prior
to
Cooks
death,
the
establish
testimony
Officer
and
Greens
Officer
conduct
Howards
is
accident
Summers
report.
deposition
The
report
simply states that after Cook leapt over the fence, he lost his
hand-hold before Officer Green could get to him, and Cook fell
the
70
feet
to
the
concrete
roadway
below.
(J.A.
972.)
Like the
present
at
the
fence
and
was
the
African-American
BCPD
Specifically,
without
excessive
probable
force
in
cause,
making
[and]
arrests
against
and
the
detentions
use
that
of
are
can
be
the
basis
of
1983
liability.
From
these
violating
Cooks
Fourth
Amendment
rights
because
Officer
force
during
violation.
As
that
a
seizure,
result,
and
they
yet
failed
maintain
that
to
stop
summary
16
(J.A. 29.)
relevant
here,
the
Fourth
Amendment
protects
against
unreasonable . . . seizures.
is
not
implicated
every
time
police
officer
approaches
an
against Officer Howard, and even if they had not, such a claim
would fail based on the record before us.
17
The Appellants repeatedly refer to the BCPD officers
initial approach and pursuit of Cook as being unlawful due to a
lack of probable cause. They are wrong as to both the law and
the facts. During discovery, several points came to light which
are no longer disputed by any evidence (despite the Appellants
bald assertions to the contrary), and which are relevant to
understanding the initial encounter between Cook and the BCPD
officers.
The officers observed Cook walking in such a manner
that suggested he was carrying a concealed weapon at his waist.
When they approached him in order to conduct a field interview,
Cook fled and the officers pursued him.
A firearm was later
retrieved from Cooks body.
While we undertake the basic Fourth Amendment seizure
analysis employed by the district court, we also note that under
the Supreme Courts precedent regarding Terry stops and in
particular its decision in Illinois v. Wardlow, 528 U.S. 119
(Continued)
41
U.S. 429, 434 (1991); Schultz v. Braga, 455 F.3d 470, 480 (4th
Cir. 2006).
reasonable
person
would
not
feel
free
to
leave
or
the
Appellants,
could
not
establish
that
seizure
by
(analyzing
whether
seizure
by
physical
force occurred when a fleeing subject ran into and was killed on
impact with a police-created roadblock set in place to stop the
subject); Hodari D., 499 U.S. at 624 (From the time of the
control.)
(holding
no
(internal
seizure
citations
occurred
until
omitted);
Hodari
id.
was
at
629
physically
489
U.S.
at
597-98
(holding
that
where
the
for
there
to
be
seizure.
United
States
v.
Beauchamp, 659 F.3d 560, 566 (6th Cir. 2011) (citing Brendlin v.
California, 551 U.S. 249, 254 (2007)).
Cooks
flight
nonetheless
demonstrates
U.S.
at
629
(assuming
that
43
police
lack
of
officers
pursuit
uncontroverted
record
evidence
thus
supports
the
Accordingly, the
branch
is
action)
substantive
action.
due
more
process
difficult
violations
to
prove
resulting
than
from
alleging
legislative
conduct
wrong
conduct
that
enough
shocks
to
register
the
on
due
conscience,
process
and
scale
nothing
as
less.
Negligence is, by
definition,
hurdle,
something
insufficient
less
than
to
satisfy
intentional
44
this
conduct
may,
in
although
special
circumstances, be sufficient. 18
Id.
instructed:
[I]n a due process challenge to executive action, the
threshold question is whether the behavior of the
governmental officer is so egregious, so outrageous,
that it may fairly be said to shock the contemporary
conscience.
That judgment may be informed by a
history of liberty protection, but it necessarily
reflects an understanding of traditional executive
behavior,
of
contemporary
practice,
and
of
the
standards of blame generally applied to them. Only if
the necessary condition of egregious behavior were
satisfied would there be a possibility of recognizing
a substantive due process right to be free of such
executive action . . . .
Lewis, 523 U.S. at 847 n.8.
We conclude that the Appellants allegations with regard to
Officer Green the only BCPD officer who is a party defendant
and who is alleged to have been at the scene prior to Cooks
death do not rise to the requisite level to survive summary
judgment.
45
conscience.
As
noted
above,
two
sources
place
Officer
prior
to
Cooks
fallOfficer
Howards
accident
report
(J.A. 972.)
Summers
She
averred
was
that
Officer
Green
never
shook
the
fence,
but
officer
looked
dazed
and
stunned,
and
was
46
that
Officer
officer
Summers
clearly
states
observed
that
Green
was
the
near
the
fence),
officer
did
African-American
not
Summers
BCPD
testimony
participate
in
any
actionable conduct.
that
Green
simply
stood
violate
Cooks
due
Officer
officers
to
by
and
process
allowed
rights:
the
other
according
to
talk
Cook
down
from
the
fence
and
bring
him
to
safety.
to
the
level
process claim.
Cir.
2001)
of
culpability
required
for
viable
due
(While
it
is
clear
that
intentionally
harmful
violation.);
circumstances
even
Lewis,
demand
precipitate
[a
523
U.S.
police]
recklessness
at
853
officers
fails
to
([W]hen
instant
inch
close
marks
omitted);
id.
at
840-55
(describing
the
opening
brief
consists
of
rank
conjecture
and
the
Caucasian
BCPD
officers
allegedly
violative
conduct.
on
mere
specific
allegations;
evidence
to
instead,
support
they
their
must
claims.
have
See
set
forth
Lujan
v.
so
as
to
state
claim
for
constitutional
violation.
2.
granting
substantive
summary
due
judgment
process
claims.
to
Officer
As
Howard
already
on
their
recognized,
the
by,
inter
alia,
filing
false
accident
report.
The
its
conclusion
that
the
Appellants
had
not
identified
protected interest.
The Appellants assert that the record contains sufficient
evidence from which a jury could conclude that Officer Howard
participated in a conspiracy that violated the Appellants due
process rights.
First, they
by
the
unlawful
conduct
of
police
officers
have
agree
with
the
district
court:
Officer
Howard
was
1994),
the
Supreme
Court
has
never
extended
the
Amendment
due
process
clause
to
encompass
Id. at 805.
We declined to sanction
See id.
Such a claim
right
(in
this
case
the
right
to
access
to
Cir. 1996).
each
interpretation.
act
Rather,
alleged
the
is
problem
capable
is
of
that
an
innocent
[the]
evidence
bottom,
the
Appellants
because
Officer
Howards
report
argument
appears
contradicts
their
to
be
that
speculation
court,
denied
he
their
had
to
right
have
to
participated
access
to
in
courts.
conspiracy
This
that
argument
but also for the reason identified by the district court: the
Appellants
have
failed
to
identify
with
any
specificity
how
414-16 (2002); see also Swekel v. City of River Route, 119 F.3d
1259, 1263-64 (6th Cir. 1997) (access to courts claims require
proof that the defendants actions foreclosed [the Appellants]
from filing suit in . . . court or rendered ineffective any . .
. remedy [they] previously may have had).
produce
evidence
of
Officer
Howards
Having failed to
participation
in
20
19
III.
For the foregoing reasons, we affirm the judgments of the
district court.
AFFIRMED
the
See
(4th
in
not
court
to
documents
abused
quash
sought
its
based
by
discretion
on
the
its
in
granting
blanket
Appellants
the
conclusion
were
BCPDs
that
the
irrelevant.
And,
I.
In considering the district courts decision to quash the
Appellants request for documents related to Cooks death, the
majority
properly
district
court
on
emphasizes
appeal.
the
deference
Review
for
that
abuse
of
we
owe
the
discretion,
478 F.3d 581, 584 (4th Cir. 2007) (A district court has abused
its
discretion
if
its
decision
is
guided
by
erroneous
legal
of
good
cause
as
to
the
Appellants
later-filed
motion to substitute.
As support for its decision to grant the BCPDs motion to
quash,
the
satisfied
district
that
the
court
stated
documents
simply
sought
by
that
[the
it
was
fully
Appellants]
J.A. 18. 1
are
I do
the
requestsincluding
first
interviews,
three
surveillance
records,
incident
and
reports,
statements
from
witness
police
54
involving
Cookis
equally
clear.
Moreover,
in
opposing
the
Maj. Op. at
In my
fails
available
to
to
it
recognize
before
or
consider
ruling
on
the
motion
range
to
of
options
quash.
For
modification
outright.
of
698
subpoena
is
preferable
to
quashing
it
(D.C.
subpoena
Cir.
is
1996)
(agreeing
that
generally
preferred
to
modification
outright
of
quashing,
a
but
acknowledged
produce
in
the
non-privileged,
responsive
documents
in
motion
to
quash
its
obligation
non-disciplinary/personnel
its
possession
to
related
that
pertain
from
when
satisfying
put
in
context,
particularly
since
the
the
November
documents
October
15,
until
2010
return
22,
date
set
2010,
forth
well
in
after
the
both
the
Appellants
56
II.
It is against this backdrop that I consider the district
courts related denial of the Appellants motion to amend their
pleadings
(by
substituting
Officers
Fried
and
Choi
as
party
information
about
Officers
Fried
and
Chois
alleged
25,
opting
instead
to
place
sole
responsibility
for
that
The Appellants
when
considering
whether
the
Appellants
subsequently
analyzing
this
issue,
am
of
course
bound
by
the
vacating,
modifying,
or
otherwise
disturbing
that
do
not
affect
any
party's
substantial
rights.
1312 (9th Cir. 1980) (citing Rule 61 and noting that [t]he
57
party
was
prevented
from
fully
developing
evidence
the district courts error on the motion to quash ruling was not
harmless.
In arriving at that conclusion, I necessarily concede that
the
Appellants
(1)
inexplicably
set
return
date
for
the
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure 1522.2 (3d ed. 2010) (The use of the good-cause
standard [for modifying scheduling orders], rather than allowing
modification only in cases of manifest injustice as is done for
other
pretrial
orders,
indicates
that
there
may
be
58
more
November
22,
2010
that
the
BCPD
first
disclosed
that
eight
days
later,
the
Appellants
filed
the
motion
A
to
J.A. 202.
documents
that
were
patently
relevant,
the
Appellants
an
untimely
motion
to
substitute,
but
trial
judge
See OConnell
v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 155 (1st Cir.
2004) (affirming denial of motion to amend filed five months
after the scheduling order deadline and concluding that [s]uch
a long and unexplained delay vindicates the district court's
59
conclusion
that
plaintiffs
were
not
diligently
pursuing
this
litigation). 2
As
did
the
district
court,
the
majority
faults
the
the
alleged
conspiracy
following
Cooks
death,
they
also
believed that Howard and Green were the officers who initially
pursued Cookand this belief was not without reason.
Shortly after Cooks death (but before filing suit), the
Appellants requested that the BCPD preserve and produce certain
60
that
Officers
defendants,
and
involvement
in
disclosure
Officers
said
the
Howard
nothing
pursuit.
on
November
Fried
and
22,
Choi
and
of
Green
properly-named
Officers
Fried
and
Chois
was
until
the
BCPDs
It
2010which
dated
were
not
included
August
14,
reports
from
2007that
the
the
Appellants
almost
certainly
could
have
ascertained
answer
to
interrogatories
listed
Officers
Fried
and
Choi as present at the scene, he does not assert that they were
involved in the pursuit.
consider
their
shortcomings
against
the
backdrop
of
the
On that score,
would
have
learned
of
Officers
Fried
and
Chois
62
short,
believe
that
justice
requires
the
district
III.
For the reasons set forth above, I dissent from Part II.B
of the majority opinion.
63