Michael Gemaehlich v. Octavia Johnson , 599 F. App'x 473 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1198
MICHAEL GEMAEHLICH,
Plaintiff - Appellant,
v.
OCTAVIA L. JOHNSON, individually and in her official
capacity as Roanoke City Sheriff; DEPUTY KENNETH FERRELL,
individually and in his official capacity as a Roanoke City
Sheriff’s Office deputy; DEPUTY FRANK PORTER, individually
and in his official capacity as a Roanoke City Sheriff's
Office deputy; DEPUTY JENNIFER CALLAHAN, individually and in
her official capacity as a Roanoke City Sheriff’s Office
deputy; SERGEANT STEPHEN SOUTHERLAND, individually and in
his official capacity as a Roanoke City Sheriff’s Office
sergeant,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:12-cv-00263-SGW-RSB)
Submitted: November 25, 2014 Decided: December 2, 2014
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John P. Fishwick, Jr., LICHTENSTEIN FISHWICK PLC, Roanoke,
Virginia, for Appellant. Carlene Booth Johnson, PERRY LAW FIRM
PC, Dillwyn, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Michael Gemaehlich filed a second amended complaint
against Sheriff Octavia Johnson, Deputies Kenneth Ferrell, Frank
Porter, and Jennifer Callahan, and Sergeant Stephen Sutherland
seeking damages for excessive use of force, in violation of 42
U.S.C. § 1983 (2012), conspiracy to violate his civil rights,
and assault and battery in violation of state law. Gemaehlich
now appeals the district court’s orders granting in part
Defendants’ motion to dismiss, granting in part Defendants’
motion for summary judgment, and denying his motion for a new
trial. We affirm. 1
Gemaehlich contends that the district court erred in
overruling his objections to the magistrate judge’s discovery
ruling that only some of the complaints and investigative files
he sought were discoverable. If timely objections are raised to
a magistrate judge’s rulings on nondispositive matters, the
district court must review these objections and set them aside
1
We possess jurisdiction to review all of the issues
Gemaehlich raises on appeal. See Miami Tribe of Okla. v. United
States, 656 F.3d 1129, 1137 (10th Cir. 2011) (“It is a general
rule that all earlier interlocutory orders merge into final
orders and judgments . . . .”) (internal quotation marks and
brackets omitted); MLC Auto., LLC v. Town of S. Pines, 532 F.3d
269, 279 (4th Cir. 2008) (“[D]esignation of a postjudgment
motion in the notice of appeal is adequate to support a review
of the final judgment when the intent to do so is clear.”)
(internal quotation marks omitted).
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if “clearly erroneous or . . . contrary to law.” Fed. R. Civ.
P. 72(a). The district court reviewed the magistrate judge’s
ruling and concluded that it was not clearly erroneous, in light
of the court’s ability to limit discovery under Federal Rule of
Civil Procedure 26(b)(2)(C) and the magistrate judge’s “hands-on
approach to the discovery process.” We conclude that the
district court did not abuse its discretion in overruling
Gemaehlich’s objections to the magistrate judge’s discovery
ruling. See Kolon Indus., Inc. v. E.I. DuPont de Nemours & Co.,
748 F.3d 160, 172 (4th Cir. 2014). cert. denied, 83 U.S.L.W.
3084 (U.S. Nov. 3, 2014) (providing standard of review).
Next, Gemaehlich contends that the district court
erred in granting summary judgment for Defendants on the issue
of whether the deputies used excessive force while searching him
at the intake counter. We review de novo a district court’s
grant of summary judgment, “viewing the facts and the reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.” Emmett v. Johnson, 532 F.3d 291, 297 (4th
Cir. 2008). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “Conclusory or speculative allegations do not
suffice, nor does a mere scintilla of evidence in support of
[the nonmoving party’s] case.” Thompson v. Potomac Elec. Power
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Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
Viewing the facts presented to the district court at
the summary judgment stage in the light most favorable to
Gemaehlich, we conclude that the court did not err in granting
summary judgment for the Defendants regarding the incident at
the intake counter. It is apparent from the evidence presented
that the deputies’ actions were not performed “maliciously and
sadistically for the very purpose of causing harm” but were made
“in a good faith effort to maintain or restore discipline.”
Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (internal
quotation marks omitted); see Young v. City of Mount Ranier, 238
F.3d 567, 575 (4th Cir. 2001) (holding that “[p]retrial
detainees are entitled to at least the same protection under the
Fourteenth Amendment as are convicted prisoners under the Eighth
Amendment”) (footnote omitted).
Gemaehlich also contends that the district court erred
in permitting Defendants to raise at trial the issue of whether
he consulted counsel prior to filing a complaint with the
Sheriff’s Office. Upon review, we note that the district court
took under advisement Gemaehlich’s motion in limine to exclude
any such evidence, and Gemaehlich did not renew his motion at
trial. Instead, he opted to testify on direct examination that
he consulted counsel prior to filing the complaint. In choosing
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to testify to that fact on direct examination, we conclude,
Gemaehlich has waived any claim on appeal that such evidence was
erroneously admitted. See Ohler v. United States, 529 U.S. 753,
755 (2000) (“[A] party introducing evidence cannot complain on
appeal that the evidence was erroneously admitted . . . .”).
Gemaehlich next contends that the district court erred
in refusing to provide a separate jury instruction on his claim
that Defendants conspired to deprive him of his civil rights.
In light of the jury’s verdict that the deputies did not use
excessive force against Gemaehlich, we need not address this
claim. See Hinkle v. City of Clarksburg, 81 F.3d 416, 420-21
(4th Cir. 1996) (concluding that claims derivative of excessive
force claim were mooted by jury’s verdict finding no excessive
force); see also id. at 421 (“To establish a civil conspiracy
under § 1983, [a plaintiff] must present evidence that the
[defendants] acted jointly in concert and that some overt act
was done in furtherance of the conspiracy which resulted in
[plaintiff’s] deprivation of a constitutional right . . . .”).
Additionally, Gemaehlich contends that the district
court erred in denying his motion for a new trial because the
jury’s verdict is against the clear weight of the evidence. 2 “A
2
Gemaehlich also contends that the doctrine of cumulative
error entitles him to a new trial. We have not determined
whether the cumulative error doctrine applies in civil cases,
(Continued)
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district court’s denial of a motion for a new trial is reviewed
for abuse of discretion, and will not be reversed save in the
most exceptional circumstances.” Minter v. Wells Fargo Bank,
N.A., 762 F.3d 339, 346 (4th Cir. 2014) (internal quotation
marks omitted). When the party moving for a new trial did not
previously move for judgment as a matter of law under Federal
Rule of Civil Procedure 50, “our scope of review is exceedingly
confined, being limited to whether there was any evidence to
support the jury’s verdict, irrespective of its sufficiency, or
whether plain error was committed which, if not noticed, would
result in a manifest miscarriage of justice.” Id.Gemaehlich did not move for judgment as a matter of
law. Our review of the evidence convinces us that there is
evidence supporting the jury’s verdict, and there was no plain
error committed that would result in a miscarriage of justice if
we declined to notice it. We therefore conclude that the
district court did not abuse its discretion in denying
Gemaehlich’s motion.
Finally, turning to Gemaehlich’s challenges to the
district court’s order granting in part Defendants’ motion to
see Anthony v. Ward, 336 F. App’x 311, 322 (4th Cir. 2009) (No.
07-1932); however, even if we recognized its application in a
civil context, Gemaehlich has not demonstrated errors allowing
its application in his case.
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dismiss, we first conclude that we need not address the merits
of Gemaehlich’s contention that the district court erred in
dismissing all claims against Johnson, in light of the fact that
the jury returned a verdict for the deputies in this case. See
Hinkle, 81 F.3d at 420-21 (holding that challenge to district
court’s grant of summary judgment for supervisor was mooted by
jury verdict for defendant officer because “[i]n the absence of
any underlying use of excessive force against [plaintiff],
liability cannot be placed on . . . a supervisor”).
Gemaehlich also contends that the district court erred
in dismissing his state law assault and battery claims under the
one-year statute of limitations found in Virginia Code § 8.01-
243.2 (2007). “We review de novo a district court’s dismissal
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).” Sec’y of State for Def. v. Trimble
Navigation, Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Section
8.01-243.2 imposes a one-year statute of limitations on actions
relating to the conditions of confinement, 3 and the Supreme Court
of Virginia applies this limitations period to pretrial
detainees who are no longer confined at the time they bring the
3
Section 8.01-243.2 also requires exhaustion of
administrative remedies prior to filing a civil complaint;
however, Defendants did not raise the issue in the district
court.
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action. See Lucas v. Woody, 756 S.E.2d 447 (Va. 2014); Bing v.
Haywood, 722 S.E.2d 244 (Va. 2012). Gemaehlich’s state law
assault and battery claim, brought nearly seven months after the
expiration of the one-year statute of limitations, is therefore
barred. Thus, the district court correctly granted Defendants’
motion to dismiss that claim.
Accordingly, we affirm the district court’s orders.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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