Smith v. Ray , 409 F. App'x 641 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1518
AMANDA DEANNE SMITH,
Plaintiff – Appellant,
v.
R. R. RAY, Officer; UNKNOWN UNIFORMED CITY OF VIRGINIA
BEACH POLICE OFFICER; CITY OF VIRGINIA BEACH; ARMAND RUBBO,
Sergeant; JARVIS LYNCH, Sergeant; SCOTT STEIN, Officer; JAY
KEATLEY, MPO; JOHNNY MONTS, MPO; JAMES HEWLETT, MPO; TONY
F. BULLARD,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00281-RBS-JEB)
Argued: October 26, 2010 Decided: February 2, 2011
Before TRAXLER, Chief Judge, GREGORY, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Reversed in part, affirmed in part, and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Chief Judge
Traxler and Senior Judge Hamilton joined.
ARGUED: Darren Marshall Hart, HART & ASSOCIATES, PC, Richmond,
Virginia, for Appellant. Christopher Scott Boynton, OFFICE OF
THE CITY ATTORNEY, Virginia Beach, Virginia; James Arthur Cales,
III, FURNISS, DAVIS, RASHKIND & SAUNDERS, Norfolk, Virginia, for
Appellees. ON BRIEF: Thomas W. Ashton, HART & ASSOCIATES, PC,
Richmond, Virginia, for Appellant. Mark D. Stiles, Michael A.
Beverly, OFFICE OF THE CITY ATTORNEY, Virginia Beach, Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
This appeal was taken by Amanda Smith, the plaintiff-
appellant, following the grant of summary judgment by the
district court in favor of Robert Ray, Armand Rubbo,
Jarvis Lynch, Scott Stein, Jay Keatley, Johnny Monts, and
James Hewlett, all law enforcement officers for the Virginia
Beach Police Department, and the City of Virginia Beach, the
defendant-appellees (hereinafter, collectively, “Defendants”).
Smith filed two separate, but closely related complaints
containing 42 U.S.C. § 1983 and state tort law claims against
overlapping groups of the above named Defendants as well as
against Tony Bullard, a private citizen. On appeal, we must
determine (1) whether the district court erred in “merging”
these cases and dismissing the first complaint following the
consolidation of the cases; (2) whether the court erred in
granting summary judgment as to the § 1983 claims contained
within Smith‟s second complaint; and (3) whether the court erred
when, after dismissing the federal claims contained within the
second complaint, it declined to retain jurisdiction over the
outstanding state law claims.
As explained below, we agree that the court erred in
merging the two cases. On remand, we direct the court to revive
the first complaint and the claims therein for further
proceedings consistent with this opinion. However, we affirm
3
the grant of summary judgment as to those federal claims
contained within the second complaint. We also find that the
court acted within its discretion as to its treatment of the
state law claims from the second complaint.
I.
A.
“We review de novo a district court‟s denial of summary
judgment, construing all facts and reasonable inferences in the
light most favorable to the nonmovant.” Nourison Rug Corp. v.
Parizan, 535 F.3d 295, 298 (4th Cir. 2008); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). We therefore
present the following recitation of facts in the manner most
favorable to Smith.
On the afternoon of September 21, 2006, Ray, a uniformed
police officer for the City of Virginia Beach, arrived at a home
on Adler Avenue to assist Bullard, a private citizen, with
finding T., Bullard‟s missing juvenile stepson. Bullard
believed that T. was staying at the Adler Avenue home, but was
told by its residents that T. was now at another house.
Arriving at the second address, Ray and Bullard looked
through a window and saw several young men standing together
inside the house. Bullard tentatively identified one of the men
as his stepson. Ray knocked on the door of the residence, and
4
heard “scurrying” sounds coming from inside. Smith opened the
door, and exited the house after being instructed to do so by
Ray.
Ray asked Smith for her name and age, and whether she was
the homeowner. Smith gave the officer her first name, her age,
then twenty-two, and explained that she was a guest. Ray then
asked Smith if T. was inside the house, and Smith answered that
T. was not there.1 Ray next asked for “Joel,” an adult
acquaintance of T. Smith said that Joel was there, and told Ray
to “Hold on.” As Smith turned away and opened the screen door,
Ray reached across her and shut it. Ray‟s sudden movement
startled Smith, and she took a small step away from the house.
Ray -- allegedly concerned that Smith was attempting to
flee -- grabbed her arm, and Smith struggled to get out of his
grip. A pocketknife fell onto the ground from her sweatshirt,
and Bullard kicked it away. Bullard, hoping to further assist
Ray, then kicked Smith‟s legs out from under her. Smith fell
onto her stomach, and Ray landed atop her back. Although Smith
admits to screaming profanities while attempting to get up, she
denies ever striking out at the officer.
1
Both Ray and Bullard claim that, throughout the encounter,
Smith appeared unfocused and intoxicated. Smith denies being
inebriated or otherwise unresponsive. No drug or alcohol tests
were ever performed on Smith.
5
Ray then punched Smith three times on the right side of her
body. Soon, Officer Keatley arrived on the scene, and assisted
Ray with handcuffing Smith. Smith alleges that Ray then brought
her to her feet by grabbing her by the ponytail with enough
force to tear hair from her scalp.
Smith was then brought to Ray‟s police car, and searched by
him. While searching Smith, Ray asked whether she had any
weapons, and Smith admitted that she had a pocketknife. Unable
to find the pocketknife on her person, Ray walked back towards
the house to search for it. While Ray was looking for the
pocketknife, Smith was again searched by another police officer.2
Smith alleges that this second officer inappropriately touched
her breasts and penetrated her genitalia. Smith screamed for
help, but no one responded to her pleas. Upon finding the
knife, Ray returned to Smith.
The other officers, Hewlett, Monts, Stein, Rubbo, and
Lynch, all arrived at the scene after Smith was in handcuffs.
Ray then drove Smith to the police precinct. Ray told
Smith that she was under arrest for obstruction of justice, and
unlawfully carrying a concealed weapon. Smith was brought
before a magistrate judge, and charged with carrying a concealed
2
During an interview as a part of an internal police
investigation into the incident, Bullard also admitted that he
saw a second officer search Smith.
6
weapon. However, Smith was ultimately found not guilty of that
charge.
B.
On May 23, 2008, Smith filed a lawsuit in Virginia state
court against Ray and an Unknown Uniformed City of Virginia
Beach Police Officer (hereinafter the “Unknown Officer”), who
Smith now believes to have been Keatley. Within her complaint
were § 1983 claims for the alleged violation of her rights under
the Fourth, Fifth and Fourteenth Amendments, as well as state
tort claims. On June 18, Ray filed his answer and successfully
moved for the removal of the case to the United States District
Court for the Eastern District of Virginia, where it was
assigned number 2:08cv281 (hereinafter, the “281 case” or “281
Complaint”).
On September 22, 2008, Smith filed a second complaint in
the district court, thereby initiating another and ostensibly
separate lawsuit, which was assigned case number 2:08cv449
(hereinafter, the “449 case” or “449 Complaint”). This second
complaint contained allegations that the City of Virginia Beach,
and those officers present during the incident were all liable
for failing to act so as to prevent the violation of Smith‟s
constitutional rights by Ray and the Unknown Officer.
Specifically, the 449 Complaint included theories of bystander,
7
supervisor and municipal liability arising under § 1983. It
also contained state tort claims against Bullard.
On September 30, 2008, Smith filed and then withdrew an
Amended Complaint in the 281 case. The same day, she filed an
Amended Complaint in the 449 case (“First Amended 449
Complaint”). None of the claims asserted in the 281 case were
mentioned in the First Amended 449 Complaint.
On October 29, 2008, upon a motion from Smith, the district
court consolidated cases 281 and 449. In its consolidation
order, the court informed the parties that:
Counsel‟s future docket entries are to be made ONLY in
the LEAD CASE, Case No. 2:08cv281. COUNSEL‟S FUTURE
DOCKET ENTRIES are NOT to be “spread” to this member
case.
J.A. 23. In an effort to comply with this direction, on
November 18, 2008, Smith filed the Second Amended 449 Complaint
on the 281 docket. That same day, Defendants filed a Motion to
Dismiss in response to the First Amended 449 Complaint. J.A.
151, 155. However, by agreed order, the Motion was later deemed
filed in response to the Second Amended 449 Complaint. The next
day, the court ordered the Second Amended 449 Complaint stricken
from the record because, according to the court, it should have
been “designated as case number 2:08cv281.” J.A. 192, n.1.
On November 20, 2008, Smith moved for leave to file her
Second Amended 449 Complaint, which contained no references to
8
the original claims against Ray or the Unknown Officer. On
December 10, 2008, the district court granted an Agreed Order
asking that the Second Amended Complaint be deemed filed in the
consolidated case. Three days later, on December 12, the court
dismissed the 449 case without prejudice:
Pursuant to this agreed order plaintiff‟s Second
Amended Complaint was filed. As such the plaintiff‟s
Second Amended Complaint is the operative document for
purposes of these consolidated cases, and the court
will treat it as the sole active complaint in this
matter.
J.A. 334. By designating the Second Amended 449 Complaint the
sole operative pleading, the court effectively supplanted the
281 Complaint, and “merged” the two cases into one. Smith moved
the district court to reconsider its order, but the court denied
her motion. Similarly, the court denied a motion for relief
filed by Smith pursuant to Federal Rule of Civil Procedure
60(b).
The parties later filed opposing motions for summary
judgment. On February 13, 2009, a magistrate judge recommended,
after analyzing only those claims found within the Second
Amended 449 Complaint, that Defendants‟ motion for summary
judgment be granted, and that the court decline jurisdiction
over Smith‟s state law claims. The district court wholly
adopted the magistrate judge‟s recommendations. Smith
thereafter filed a timely appeal to this Court.
9
II.
Smith challenges the district court‟s denial of her motion
for leave to amend, the denial of her Rule 60(b) motion and the
denial of her motion for reconsideration of the court‟s December
12, 2008 order, whereby the court concluded that the Second
Amended 449 Complaint was the “sole active complaint.” J.A.
355. The abuse of discretion standard governs appellate review
for all of these motions. See Nourison, 535 F.3d at 298 (“leave
to amend is reviewed for abuse of discretion”); United States v.
Holland, 214 F.3d 523, 527 (4th Cir. 2000) (“When a motion for
reconsideration is appealed, the standard of review is abuse of
discretion.”); Heyman v. M.L. Marketing Co., 116 F.3d 91, 94
(4th Cir. 1997) (“We review denials of Rule 60(b) motions for an
abuse of discretion.”).
The district court abused its discretion when it sua sponte
dismissed the 281 Complaint. “Although consolidation is
permitted as a matter of convenience and economy in
administration, it . . . does not merge the suits into a single
cause, or change the rights of the parties, or make those who
are parties in one suit parties in another.” Intown Properties
Management, Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168
(4th Cir. 2001) (citing Johnson v. Manhattan Ry. Co., 289 U.S.
479, 496-97 (1933)). Indeed, in granting the motion for
consolidation, the court correctly noted that it was
10
consolidating the cases for “any and all hearings and for trial
under case 2:08cv281,” but not for the purpose of combining the
pleadings. J.A. 8. Therefore, the original 281 Complaint
remains active, and was not amended or otherwise superseded by
the Second Amended 449 Complaint.
Accordingly, the court also erred in denying Smith‟s other
requests for relief. We therefore reverse the district court,
revive the 281 complaint -- as well as the § 1983 and state tort
claims against Ray and the Unknown Officer contained therein --
and remand for further proceedings below.
III.
Smith appeals the district court‟s grant of summary
judgment in favor of Defendants as to the § 1983 claims for
bystander, supervisor, and municipal liability within the Second
Amended 449 Complaint. We address each of these claims in
separate sections below, and we affirm the decision of the
district court. Because we find that Smith‟s indirect § 1983
liability claims fail, we will not discuss qualified immunity.
A.
We first address the bystander liability claims against
Defendants Hewlett, Lynch, Stein, Keatley, Monts, Ray, and
Rubbo. When considering a motion for summary judgment, “[i]t is
not our job to weigh the evidence, to count how many affidavits
11
favor the plaintiff and how many oppose him, or to disregard
stories that seem hard to believe. Those tasks are for the jury
. . . . [A] court should consider only whether there is a
genuine issue for trial.” Gray v. Spillman, 925 F.2d 90, 95
(4th Cir. 1991) (citing Anderson, 477 U.S. at 249-50). However,
even upon viewing the evidence in the most favorable light,
Smith has failed to demonstrate that a reasonable juror could
find any defendant liable for failing to prevent the alleged
violations of her constitutional rights.
Under the theory of bystander liability, an officer may be
liable only if he or she: “(1) knows that a fellow officer is
violating an individual‟s constitutional rights; (2) has a
reasonable opportunity to prevent the harm; and (3) chooses not
to act.” Randall v. Prince George‟s County, 302 F.3d 188, 204
(4th Cir. 2002). Given these guidelines, we must first decide
whether there was any constitutional violation as to each of the
three incidents identified by Smith: (1) the initial seizure,
(2) the use of excessive force, and (3) the sexual assault. We
therefore separately review these allegations, and the adequacy
of her bystander liability claims as to each.
i.
First, we find that Smith‟s constitutional rights were not
violated when she was stopped and detained by Ray on the front
doorstep of the home where she was an overnight guest. Absent
12
exigent circumstances, “[i]t is a „basic principle of Fourth
Amendment law‟ that searches and seizures inside a home without
a warrant are presumptively unreasonable.” Payton v. New York,
445 U.S. 573, 586-90 (1980). The standard for warrantless
seizure within a home is different from the one necessary for a
stop in a public space, id. at 587, and the curtilage of a home,
including the front doorway, is “entitled to the same level of
Fourth Amendment protection extended to the home, so that, as
with the home, probable cause, and not reasonable suspicion, is
the appropriate standard for searches of [or seizures within]
the curtilage.” Rogers v. Pendleton, 249 F.3d 279, 287 (4th
Cir. 2001). As an overnight guest, Smith was entitled to nearly
the same Fourth Amendment protections afforded the resident of
the house. Minnesota v. Olson, 495 U.S. 91, 98-100 (1990)
(“[T]he overnight guest[] . . . seeks shelter in another‟s home
precisely because it provides him with privacy, a place where he
and his possessions will not be disturbed by anyone but his host
and those his host allows inside.”).
Here, we need not address the level of protection Smith was
entitled to as a guest seized within the curtilage of a home.
This is because even assuming Smith were to be afforded the full
measure of Fourth Amendment protections, exigent circumstances,
specifically, the need to confirm the whereabouts of a runaway
child, would still have permitted Ray to stop or “seize” her for
13
further questioning. See, e.g., United States v. Taylor, 624
F.3d 626, 631-32 (4th Cir. 2010) (where an officer‟s concern for
the safety of a child provided him with sufficient exigent
circumstances to justify the warrantless intrusion into a home);
Hunsberger v. Wood, 570 F.3d 546, 555-57 (4th Cir. 2009) (a
reasonable officer could conclude that exigencies excused the
warrantless search of a home in order to locate a missing girl).
Although we must view the facts in the light most favorable
to Smith, we must also review the legitimacy of the seizure from
the perspective of a reasonable officer in Ray‟s position. See
Taylor, 624 F.3d at 631 (“An officer may enter the home if „the
exigencies of the situation make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable
under the Fourth Amendment.‟” (quoting Mincey v. Arizona, 437
U.S. 385, 394 (1978))). Ray maintains that he stopped Smith
from reentering the home because she was uncooperative, appeared
to be intoxicated, had a concealed weapon, seemed evasive, and
was contributing to the delinquency of a minor. We therefore
address each of these bases for the stop.
The encounter began voluntarily as Smith opened the door of
the home to the officer and forthrightly answered all of his
questions. In response to a question about Joel, Smith told the
officer to “Hold on,” and turned to go back into the residence,
ostensibly to retrieve Joel. Smith acted in a manner consistent
14
with her intentions to assist Ray with his investigation. Cf.
Florida v. Bostick, 501 U.S. 429, 437 (1991) (“We have
consistently held that a refusal to cooperate, without more,
does not furnish the minimal level of objective justification
needed for a detention or seizure.”). At the moment Ray moved
to prevent Smith from reentering the house, he also had no
reason to suspect that Smith was in possession of a weapon.
Indeed, he did not become aware of the “weapon,” a pocketknife,
until after Smith was handcuffed.3 We also take as true Smith‟s
contention that she was coherent and not intoxicated when she
encountered Ray.
However, a reasonable officer still would have had a basis
for suspecting that Smith was contributing to the “delinquency
of a minor.”4 Bullard had identified T. as one of the young men
3
Smith maintains that her pocketknife did not fall within
the statutory definition of a weapon. Appellant‟s Br. at 32-33.
However, because we take as true Smith‟s contentions that Ray
was not aware of the instrument until after her seizure, this
distinction is irrelevant.
4
The crime of contributing to the delinquency of a minor is
defined under Code of Virginia § 18.2-371 as follows:
Any person 18 years of age or older . . . who . . .
willfully or contributes to, encourages, or causes any
act, omission, or condition which renders a child
delinquent . . . as defined in [Code of Virginia]
§ 16.1-228 . . . shall be guilty of a class 1
misdemeanor.
15
in the window of the house.5 A reasonable officer therefore
would have had some cause for suspecting that a missing child
was being harbored within the house. It does not matter that
Bullard later turned out to have been mistaken. In light of
this information, Smith‟s statements denying that the child was
present, her sudden turn back towards the home, and her attempts
to step away from Ray during his questioning could have led a
reasonable officer to believe that Smith sought to unlawfully
conceal T. from his concerned stepfather. See Code of Virginia
§ 16.1-228(5) (defining an “abused or neglected child” as any
child “without parental care or guardianship caused by the
unreasonable absence . . . of the child‟s parent, guardian,
legal custodian, or other person standing in loco parentis”).
Viewed objectively, these facts presented the exigent
circumstances necessary to justify the warrantless stop of
5
We also note that Ray did not illegally “search” the home
when he entered the property and peered through the window.
“[A] law enforcement officer‟s observations from a public
vantage point where he has a right to be and from which the
activities or objects he observes are clearly visible do not
constitute a search within the meaning of the Fourth Amendment.”
United States v. Taylor, 90 F.3d 903, 908 (4th Cir. 1996)
(citations and quotations omitted). Because Ray peered through
an un-obscured window to observe the home‟s interior, there was
no Fourth Amendment violation. See Katz v. United States, 389
U.S. 347, 351 (1967) (“What a person knowingly exposes to the
public, even in his own home or office, is not a subject of
Fourth Amendment protection.”).
16
Smith. Thus, because the stop was constitutional, no Defendant
was under any obligation to prevent it.
ii.
Next, we find that -- while Ray may be liable for the use
of excessive force against Smith -- because none of the other
defendants had any opportunity to intervene on her behalf, her
bystander liability claims again must fail.
While we find that the detention of Smith was
constitutional, the Fourth Amendment also bars police from using
excessive force during the course of a lawful seizure. Jones v.
Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). In order to
determine whether the force used by Ray was excessive, we must
look objectively as to whether a reasonable officer on the scene
would have used the same measure of force. Rowland v. Perry, 41
F.3d 167, 173 (4th Cir. 1994). We must examine the totality of
the circumstances from the perspective of a reasonable officer
at the time of the altercation, Graham v. Connor, 490 U.S. 386,
396 (1989); including the severity of the crime at issue,
whether the suspect posed an immediate threat to the safety of
the officer or others, and whether the suspect was actively
resisting arrest or attempting to evade arrest by flight, Jones,
325 F.3d at 527-28. We must then decide whether these
circumstances justified the level of force used. Id. at 396.
17
On summary judgment, where there is a dispute as to the
underlying facts of the case, the courts are bound to accept as
true the version of the facts as presented by the non-movant,
Smith, not as alleged by the officer, Ray. Rowland, 41 F.3d at
174. It is particularly important to remember these
distinctions where, as here, there are conflicting accounts
concerning what the officer actually perceived with respect to
the suspect. Gooden v. Howard County, Md., 951 F.2d 960, 965-66
(4th Cir. 1992) (en banc). We therefore find that in its
summary judgment order, which was adopted in total from a report
issued by the magistrate judge, the district court incorrectly
looked only to the facts as alleged by Ray in his affidavit.
Upon proper review of the situation leading up to the
altercation, a reasonable juror could find that Ray used an
excessive amount of force in the seizure. Smith was not
suspected of committing a violent crime. Ray had no reason to
believe that T. -- while a missing child –- was under any
immediate threat of physical harm. From his perspective, Ray
had, only moments before, seen the child standing before a
window, unharmed and unrestricted, with other youths. Outside
of the understandable general worry about the exact whereabouts
of T., Bullard also never expressed any grave concern about his
stepson‟s safety.
18
According to Smith, Ray was also not aware of the presence
of any possible weapon until after Smith was in handcuffs.
Smith further claims that she offered only minimal resistance
when the officer initially grabbed her arm. In response, Ray
tried to grab Smith, and sought Bullard‟s help in tripping her.
Smith was brought face down to the ground, and incapacitated by
the full weight of Ray atop her. It was at that moment that Ray
punched Smith in the side several times. Smith denies ever
striking out at or struggling with Ray while on the ground. Ray
then handcuffed and purportedly pulled Smith up from the ground
by her hair. Reviewing the totality of the circumstances, we
believe that a reasonable jury could find that the amount of
force used by Ray to subdue Smith was excessive in violation of
the Fourth Amendment.
We nonetheless agree with the reasoning of the district
court and magistrate judge as to the insufficiency of the
bystander liability claims. Keatley was the only officer
present at the time of the altercation. However, Smith admits
that Keatley did not arrive until she was being handcuffed, and
picked up from the ground. Thus, Keatley would not have been
present to witness the use of excessive force. None of the
other officers, Rubbo, Lynch, Stein, Monts and Hewlett, were
present for any part of the altercation. We therefore affirm
19
the grant of summary judgment as to Keatley, Rubbo, Lynch,
Stein, Monts and Hewlett.
iii.
Finally, while Smith has demonstrated that a reasonable
juror could find that she was sexually assaulted by the Unknown
Officer, she cannot show that Defendants were aware of the
alleged assault. Thus, we cannot find any Defendant liable as a
“bystander.”
A sexual assault by a police officer clearly violates the
security interests protected by the Fourth Amendment. Fontana
v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001). We must take as
true the allegations by Smith that such an assault occurred at
the hands of the Unknown Officer. We further note that
Bullard‟s statement that he witnessed a second officer search
Smith lends additional support to her allegations.
We also accept as true Smith‟s contention that she called
for help during the assault. Ray, Hewlett, Monts, Rubbo, and
Lynch all admit to being present at the scene. They also agree
that Smith was heard shouting. However, there is no indication
that these Defendants heard her screams as intelligible calls
for help. Nor is there any suggestion that the officers
deliberately chose not to assist Smith. We therefore agree with
the district court, and affirm the dismissal of the § 1983
20
bystander liability claims against Ray, Hewlett, Monts, Rubbo,
and Lynch.
In the absence of any evidence that Stein was even present
at the time of the assault, the claim against him also fails.
B.
Smith similarly does not present any genuine issues of
material fact as to her supervisory liability claims against
Rubbo. In § 1983 suits, neither municipalities nor superiors
can be held liable under theories of respondeat superior
liability. Monell v. Dep‟t of Soc. Servs., 436 U.S. 658, 694
(1978). However, a supervisor may be liable for the actions of
a subordinate if he had
(1) actual or constructive knowledge that his
subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional
injury to citizens like the plaintiff; (2) that the
supervisor‟s response to that knowledge was so
inadequate as to show deliberate indifference to or
tacit authorization of the alleged offensive
practices; and (3) that there was an affirmative
causal link between the supervisor‟s inaction and the
particular constitutional injury suffered by the
plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations
omitted). A supervisor is deliberately indifferent where the
misconduct of the subordinate is “widespread, or at least been
used on several different occasions,” id., and the supervisor
continuously fails to act to correct the behavior in the face of
“documented widespread abuses,” Randall, 302 F.3d at 206.
21
As stated above, the actions of some Defendants may have
violated the constitutional rights of Smith. However, in
response to these allegations, Rubbo ordered an investigation.
His response as a supervisor was appropriate, and the
investigation did not confirm any of Smith‟s allegations. As to
Ray, despite the evidence showing that he had been the subject
of some civilian complaints of excessive force, the subsequent
investigations failed to substantiate these claims. Rubbo was
not deliberately indifferent to these complaints as Ray was
investigated following each allegation. Thus, we affirm the
dismissal of the § 1983 supervisory liability claim.
C.
Moreover, the Monell claim against the City of Virginia
Beach also must fail. A municipality is liable under § 1983
where a policymaker officially promulgates or sanctions an
unconstitutional law, or where the municipality is deliberately
indifferent to the development of an unconstitutional custom.
City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). A
municipality is not liable for mere “isolated incidents of
unconstitutional conduct by subordinate employees . . . .
Rather, there must be numerous particular instances of
unconstitutional conduct in order to establish a custom or
practice.” Lytle v. Doyle, 326 F.3d 463, (4th Cir. 2003)
(quotations and citations omitted).
22
Here, Smith has failed to present any convincing evidence
that a policy or custom has developed regarding the use of
excessive force, sexual assaults or any other unconstitutional
actions by officers. Thus, we affirm the district court‟s
dismissal on summary judgment of all claims against the City of
Virginia Beach.
IV.
Finally, the district court did not abuse its discretion
when it dismissed the state tort claims of the 449 case without
prejudice, and chose not to remand the claims back to state
court. Upon the dismissal of all of a party‟s federal claims, a
district court may choose to “dismiss the pendent state-law
claims without prejudice, remand the state-law claims to the
state court, or decide the merits of the state-law claims.”
Farlow v. Wachovia Bank of North Carolina, 259 F.3d 309, 316-17
(4th Cir. 2001) (emphasis added); see also United Mine Workers
v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are
dismissed before trial, . . . the state claims should be
dismissed as well.”). The district court was not obligated to
retain jurisdiction, and therefore its actions were not in
error.
23
V.
The district court erred in merging the two cases and
summarily dismissing the original 281 Complaint, and we
therefore reverse that decision. Accordingly, consistent with
the findings of this opinion, we restore the § 1983 and state
law claims against Ray and the Unknown Officer contained
therein, and remand the 281 case to the district court for
further proceedings.
However, Smith lacked sufficient evidence to maintain any
of the § 1983 bystander, supervisory and municipal liability
claims of the 449 case against Defendants. Despite there being
sufficient evidence for a reasonable jury to find that Smith was
subjected to excessive force and a sexual assault, she cannot
show that either Ray, Rubbo, Lynch, Stein, Keatley, Monts, or
Hewlett were aware of or otherwise indirectly liable for these
constitutional violations under the above named theories. She
similarly lacks any evidence to sustain her claim against the
City of Virginia Beach. Finally, upon the dismissal of the
federal claims contained within the Second Amended 449
Complaint, we find no error in the court‟s refusal to continue
to hear the state law claims against Bullard from the same
complaint.
Therefore, the decisions of the district court are
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
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