MARQUS L. STEVENSON; GARY L. BARNETT; CHRISTOPHER T. HOWARD, Plaintiffs - Appellants, and KIRK BOND, JR., Plaintiff,
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
Argued: October 30, 2013.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. (8:09-cv-01791-RWT). Roger W. Titus, District Judge.
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.
Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation. Judge Floyd wrote the opinion, in which Judge Diaz and Judge Anderson joined.
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 are on appeal: dismissal; grant of summary judgment; denial of a motion pursuant to Federal Rule of Civil Procedure 59(e); and denial of a motion pursuant to Federal Rule of Civil Procedure 60(b). As explained in greater detail below, we affirm in part, reverse in part, and remand with instructions.
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" ) outside of a nightclub in Prince George's County, Maryland (the " County" ). Appellants claim that the attack was unprovoked. Among the officers present at the altercation were Officer LaVance Lowery of the City of Seat Pleasant, Maryland (" Seat Pleasant" ), and Officer Rickie Adey of the County. Officer Lowery was the only Seat Pleasant officer present, but there were multiple County officers present. Although none of Appellants were able to identify which individual 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 Appellants' complaint mentions other unidentified police officers when describing the events surrounding the assault, those officers were not named as defendants. 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 did not oppose. After dismissal, the following counts remained: as to Officer Adey, Excessive Force and Battery; as to the County, the Maryland constitutional count; and as to Officer Lowery, the § 1983 count. All counts against Seat Pleasant were dismissed. 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 moved for summary judgment, which Appellants opposed. The district court held a hearing on the motions on December 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 Officer Adey, the County could not be liable on the theory of vicarious liability. Finally, the district court stated the following at 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. The district court denied Appellants' motion on May 19, 2011. 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. Officer Lowery moved for 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 liability, and Officer Lowery's attorney objected. The district court allowed the reference to bystander liability, and the case was submitted to the 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 ultimately found that Officer Lowery violated Stevenson's constitutional rights by using 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 ...