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Decided: February 21, 2014

The Fourth Circuit held that Marques Stevenson (Stevenson), Gary Barnett (Barnett), and Christopher Howard (Howard) (collectively, the appellants) waived any challenge to the United States District Court for the District of Maryland’s partial or total dismissal of claims against Officer LaVance Lowery (Lowery), Officer Rickie Adey (Adey), Prince George’s County, Maryland (County) (collectively, the appellees), and the City of Seat Pleasant, Maryland (Seat Pleasant); that the district court correctly determined, after the trial, that the appellants sufficiently stated a cause of action for bystander liability in their complaint—and that the district court’s previous ruling on summary judgment, in which the court reached the opposite conclusion, was therefore erroneous; that because the district court’s previous summary judgment ruling was erroneous, the court’s denial of the appellants’ motion under Federal Rule of Civil Procedure 60(b) did not warrant consideration on appeal; and that the district court did not abuse its discretion by denying the appellants’ Rule 59(e) motion.  The Fourth Circuit therefore affirmed the judgment of the district court in part, reversed it in part, and remanded the case with instructions.

On July 8, 2007, police officers—including Lowery, who works for Seat Pleasant, and Adey, who works for the County—allegedly attacked the appellants in an unprovoked assault outside a County nightclub.  In July 2009, the appellants sued Lowery, Adey, the County, and Seat Pleasant, suing Lowery and Adey in their official and individual capacities and using the theory of vicarious as to the County and Seat Pleasant.  The appellants’ complaint contained counts for, inter alia, excessive force and police brutality, battery, deprivation of civil rights under 42 U.S.C. § 1983, and “a count under Articles 245 and 26 of the Maryland Constitution.”  Each defendant moved for partial or complete dismissal of the applicable counts; the appellants did not oppose these motions.  All of the counts were dismissed except the following: the § 1983 count against Lowery, the excessive force and battery counts against Adey and the state constitutional count against the County.  The district court dismissed all the counts against Seat Pleasant.  The appellees then moved for summary judgment.  At a hearing on December 21, 2010, the district court granted the appellees’ motions, except for Stevenson’s § 1983 claim against Lowery.  In addition to its assessment of the other counts, the district court found that the appellants had not stated a cause of action under the theory of bystander liability.  The district court placed its finding on summary judgment in a written order, which it entered on December 22, 2010.  In January 2011, the appellants moved to alter or amend the district court’s summary judgment ruling under Rule 59(e).  The appellants disputed, inter alia, the district court’s conclusions with regard to bystander liability.  On May 19, 2011, the district court denied the motion.

In the subsequent jury trial, the district court allowed Stevenson’s attorney to mention bystander liability during closing arguments.  After the jury found that Lowery violated Stevenson’s constitutional rights through the use of excessive force, Lowery moved for judgment as matter of law under Rule 50(b).  He argued that bystander liability had not been pleaded—and the reference to this theory during closing arguments was therefore improper.  However, at a hearing in January 2012, the district court found that the appellants’ complaint did state a cause of action for bystander liability.  The district court then ordered a new trial under Rule 50(b); however, Lowery and Stevenson settled prior to trial.  In May 2012, the appellants made a Rule 60(b) motion to vacate the district court’s order of May 29, 2011, with regard to bystander liability.  The district court denied the motion. In August 2012, the district court “entered an order respecting Officer Lowery and Stevenson’s settlement agreement and dismissing all claims.”  On appeal, the appellants disputed the district court’s decisions with regard to the appellees’ motions to dismiss, the appellee’s motions for summary judgment, the Rule 60(b) motion, and the 59(a) motion.

The Fourth Circuit declined to consider the district court’s grant of the various motions to dismiss, as the appellants did not present arguments on this issue in their brief.  With regard to summary judgment on the issue of bystander liability, the Fourth Circuit noted that, in paragraph 35 of the appellants’ complaint—which discussed the § 1983 count—the appellants stated that Lowery and Adey “did . . . commit or allow to be committed an unreasonable seizure . . .” (emphasis added).  The Fourth Circuit found inapposite the appellants’ failure to use the phrase “bystander liability” in their complaint.  The Fourth Circuit also rejected the appellees’ contention that they were not put on notice due to the lack of a bystander liability claim in the appellants’ discovery responses, attributing this failure to the appellees’ line of questioning and noted that the complaint—and not the parties’ discovery responses—is the source of “fair notice.”  However, the Fourth Circuit also noted that the reversal of summary judgment would only affect Lowery, as “he is the only defendant against whom the § 1983 count survived dismissal.”  The Fourth Circuit then found that there was no reason to consider the appellants’ Rule 60(b) motion due to its conclusion on the underlying summary judgment issue.  However, the Fourth Circuit noted that the appellants also appealed the district court’s conclusions—with regard to summary judgment and the Rule 59(e) motion—on Adey’s status as a principal actor and the County’s vicarious liability for Adey’s alleged assault.  On this issue, the Fourth Circuit noted that the appellants relied principally on affidavits—especially Barnett’s affidavit—in support of their points, and that Barnett’s affidavit contained inconsistencies and contradictions of earlier testimony.  Because the Fourth Circuit affirmed the summary judgment in favor of Adey, it also found that the County could not be held liable under a theory of vicarious liability.  Also, pursuant to the evidentiary findings of the district court, the Fourth Circuit affirmed the summary judgment in favor of Lowery with regard to his purported role as a principal actor pursuant to the § 1983 claim—but only with regard to Barnett and Howard.  This left room for reconsideration, on remand, “of Officer Lowery’s and Howard and Barnett’s summary judgment papers pursuant to a framework in which bystander liability was properly pleaded.”

Full Opinion

– Stephen Sutherland