Carr v. Deeds

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHARON CARR, individually and as 

Administratrix of the Estate of

Joshua Morgan, deceased,

Plaintiff-Appellant,

v.

V. S. DEEDS, individually and as an

agent of the State of West Virginia;

HOWARD E. HILL, JR., as

Superintendent of the West Virginia  No. 05-1472

State Police, in his official capacity;

STATE OF WEST VIRGINIA,

Defendants-Appellees,

and

T. D. BRADLEY, individually and as

an agent of the State of West

Virginia,

Defendant.



2 CARR v. DEEDS

SHARON CARR, individually and as 

Administratrix of the Estate of

Joshua Morgan,

Plaintiff-Appellant,

and

JOSHUA MORGAN, Deceased,

Plaintiff,

v.  No. 05-2186

T. D. BRADLEY, individually and as

an agent of the State of West

Virginia; HOWARD E. HILL, JR., as

Superintendent of the West Virginia

State Police, in his official capacity;

STATE OF WEST VIRGINIA,

Defendants-Appellees.



Appeals from the United States District Court

for the Southern District of West Virginia, at Beckley.

David A. Faber, Chief District Judge;

R. Clarke VanDervort, Magistrate Judge.

(CA-03-543-5; CA-04-518)

Argued: May 23, 2006

Decided: July 12, 2006

Before TRAXLER and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Traxler wrote the opinion, in

which Judge Gregory and Senior Judge Hamilton joined.

CARR v. DEEDS 3

COUNSEL

ARGUED: Paul Joseph Harris, Wheeling, West Virginia, for Appel-

lant. Wendy Elizabeth Greve, PULLIN, FOWLER & FLANAGAN,

P.L.L.C., Charleston, West Virginia, for Appellees. ON BRIEF:

Rachel A. Martin, Wheeling, West Virginia, for Appellant. Gary E.

Pullin, PULLIN, FOWLER & FLANAGAN, P.L.L.C., Charleston,

West Virginia, for Appellees.

OPINION

TRAXLER, Circuit Judge:

Plaintiff Sharon Carr, individually and as administratrix of the

estate of her son Joshua Morgan, brought this action under 42

U.S.C.A. § 1983 (West 2003), and various state law provisions,

against the State of West Virginia, the Superintendent of the West

Virginia State Police, and two of its troopers. Plaintiff’s § 1983

claims allege that Trooper V.S. Deeds unconstitutionally employed

excessive force against Morgan following Morgan’s arrest on June

20, 2001, and that Trooper Deeds and Trooper T.D. Bradley unconsti-

tutionally employed deadly force during an attempted arrest of Mor-

gan on July 10, 2001. On appeal, plaintiff challenges the district

court’s orders excluding her independent expert, and granting sum-

mary judgment to defendants on the § 1983 claims. We affirm both

orders.

I.

Because this is an appeal from the grant of summary judgment to

the defendants, we review the facts in the light most favorable to the

plaintiff. See Saucier v. Katz, 533 U.S. 194, 201 (2001).

On June 20, 2001, Trooper Deeds and at least two other law

enforcement officers arrested Morgan at the home of Dale Arbaugh

pursuant to an outstanding arrest warrant for suspected arson of

Arbaugh’s home. Morgan was transported to the State Police Bar-

racks in Lewisburg, and then to the Southern Regional Jail in Beck-

4 CARR v. DEEDS

ley, by one or more of these officers. Upon his arrival at the Regional

Jail, Morgan was medically evaluated and found to have a cut on his

lip, also described as a "busted lip," J.A. 70, and an abrasion on his

right flank or abdomen. No other injuries were noted, and there was

no report or complaint of a physical altercation.

Morgan’s mother, stepfather, and brother visited Morgan at the

police station later that day. Morgan’s mother testified that Morgan

was bleeding from his mouth and had abrasions to his shoulder and

rib area. Morgan’s stepfather testified that Morgan had a swollen lip,

"blood coming out of his mouth when he would spit," J.A. 236, and

abrasions to his shoulders and abdomen area. Morgan’s brother testi-

fied that Morgan had a swollen eye and "a couple [of] cuts and

bruises." J.A. 242-43. None of the witnesses observed any use of

force by any officer. However, they testified that, when Morgan was

asked about the injuries, he either pointed to or verbally indicated that

Deeds had inflicted them.

Two days later, after Morgan had been released from custody, he

saw Dr. Craig Bookout at the Greenbrier Valley Medical Center

emergency room. According to Dr. Bookout, Morgan had a small cut

on his lip and abrasions to his right shoulder and elbows, which Mor-

gan reported to be from "an altercation with a state police officer" on

June 20. J.A. 200. Morgan also complained of pain in his ribs and a

bruised temple, but indicated these were not the result of the alterca-

tion. No other injuries were noted. Dr. Bookout was given no infor-

mation regarding the circumstances of the alleged altercation, nor was

the identity of the officer revealed to him. Arbaugh, who had been

present when Morgan was arrested, testified that he also saw Morgan

after he was released from custody. He testified that Morgan had a

black eye, a couple of "places" on the side of his face, and bruises on

his arms and legs. Morgan filed no complaint with the West Virginia

State Police for any alleged wrongful conduct by its officers.

On July 10, 2001, Morgan’s mother completed an Application for

Involuntary Custody for Mental Health Examination of her son in

Greenbrier County, certifying that she had reason to believe Morgan

was addicted to either alcohol or drugs and that his addiction was

likely to cause serious harm to him or others. According to the certifi-

cation, Morgan told her the day before "that he would take a bullet

CARR v. DEEDS 5

in the head before he would go to jail." J.A. 91. At the time, there

were at least two outstanding warrants for Morgan’s arrest. The

Greenbrier County Circuit Court issued an order for detention, direct-

ing the Greenbrier County Sheriff to take Morgan into custody for

purposes of a probable cause hearing and mental health examination.

Alicia and Timothy Holliday were close friends of Morgan, and

Morgan had been staying at their home in Monroe County for several

weeks. When Timothy learned that there were outstanding warrants

for Morgan’s arrest, however, he asked Morgan to leave because he

did not want his family involved. Morgan told Alicia that day or the

day before that "he would kill himself or anyone who tried to take

him down, including the police," J.A. 132, and told Timothy that "he

didn’t want to go back to jail and that he would do what it took not

to go back." J.A. 135. They testified that Morgan left their home on

July 10, in possession of a pistol and ammunition and smoking mari-

juana.

Later that day, the Greenbrier County Sheriff’s office contacted

Monroe County Sheriff Gerald Bland, advised him that Morgan was

reportedly at the Holliday residence, and requested that Morgan be

taken into custody pursuant to the outstanding warrants and commit-

ment order. Deputy John Farmer and Deputy J.A. Greer were dis-

patched to the Holliday residence to apprehend Morgan, but he was

not there. The deputies were aware that Morgan might be armed, and

the Hollidays confirmed this fact.

Shortly after leaving the Holliday residence, Farmer received radio

notification that Morgan’s vehicle had been spotted nearby. While en

route to the location, Farmer met Morgan’s vehicle coming towards

him. Farmer turned around and pursued the vehicle with lights and

sirens, but Morgan did not stop. After traveling several miles, Morgan

abruptly stopped his vehicle in the middle of the road, opened the

door, and placed one foot on the pavement. Farmer ordered Morgan

to get out of the vehicle. After approximately thirty seconds, Morgan

stood outside the vehicle, but Farmer could not see Morgan’s right

hand. When Farmer ordered Morgan to place his hands on the back

of the vehicle, Morgan fled on foot over an embankment. As Farmer

was pursuing Morgan on foot, Morgan turned and fired at least two

6 CARR v. DEEDS

shots. Farmer then lost sight of Morgan and returned to the road to

call for assistance.

Sheriff Bland and Deputy Greer were the first to arrive at the

scene. Troopers from at least three different detachments of the State

Police, including Bradley and Deeds, also responded to the call for

assistance and began taking positions to contain Morgan in the area.

At about this time, the officers learned of a report that an armed man

had attempted to stop a woman in the roadway. Assuming that Mor-

gan was attempting to get a ride out of the area, Bradley, at that time

still en route to the scene, began relaying instructions to other troopers

to block roads out of the area and check vehicles.

Shortly after Bradley and Deeds arrived at the scene, two officers

reported that they had spotted Morgan and relayed the location to the

others. Deeds and Bradley, armed with a rifle and shotgun respec-

tively, immediately proceeded to the location and began searching for

him on foot. While searching, the troopers heard a noise and Bradley

spotted Morgan approaching the officers in a crouched position with

a pistol in his hand. Bradley ordered Morgan to drop the gun, but

Morgan dropped to the ground instead and fired two or three rounds

at the troopers. Bradley and Deeds returned fire and repeatedly

ordered Morgan to drop his weapon. Morgan continued to fire at the

troopers, and gunfire was again exchanged. After Bradley fired a shot

that he believed hit Morgan and Morgan did not respond to verbal

calls, Bradley and Deeds jointly approached Morgan and discovered

that he was dead. The other officers were advised that the threat was

over and the scene was immediately secured for investigation. An

autopsy was subsequently performed by Dr. Zia Sabet, M.D., Deputy

Chief Medical Examiner with the State of West Virginia. Dr. Sabet

concluded that Morgan "died as a result of multiple (undetermined)

shotgun wounds of the head, back, abdomen, and upper and lower

extremities," and found "no evidence of close range firing on the

skin." J.A. 191.

On July 16, 2003, plaintiff brought this action alleging two separate

claims of excessive force under § 1983, in addition to several state

law claims. Plaintiff alleged that Deeds unconstitutionally employed

excessive force against Morgan by assaulting him after he was taken

into custody on June 20, 2001. With regard to the July 10, 2001, inci-

CARR v. DEEDS 7

dent, plaintiff alleged that Deeds and Bradley unconstitutionally

employed deadly force against Morgan.

On June 21, 2004, after the close of discovery, defendants moved

to exclude the testimony and opinions of plaintiff’s expert, Dr. John

T. Cooper, under Rule 37(c)(1) of the Federal Rules of Civil Proce-

dure because plaintiff had failed to serve the expert disclosure

required by Rule 26(a)(2)(B) and the district court’s scheduling order.

On July 1, 2004, defendants also filed a motion for summary judg-

ment. With regard to the June 20 arrest, defendants asserted that

plaintiff had failed to produce sufficient evidence that Morgan was

injured in an altercation with Deeds and, in the alternative, that the

claim should be dismissed because Morgan’s injuries were de

minimis. With regard to the July 10 incident, defendants asserted that

plaintiff had failed to produce sufficient evidence that Deeds and

Bradley employed deadly force that was objectively unreasonable

under the circumstances. In the alternative, defendants asserted that

plaintiff’s claim did not survive Morgan’s death.

The district court granted defendants’ motion to exclude plaintiff’s

expert and granted, by separate order, defendants’ motion for sum-

mary judgment. The district court found that Deeds was entitled to

qualified immunity from the assault claim because Morgan’s injuries

were de minimis and that the deadly force claim did not survive Mor-

gan’s death.1

1

Bradley was dismissed from the case on May 5, 2004, for plaintiff’s

failure to properly serve him with the summons and complaint. Plaintiff

has not appealed this order and Bradley is no longer a defendant. Defen-

dants Howard E. Hill, Jr., sued only in his official capacity as the Super-

intendent of the West Virginia State Police, and the State of West

Virginia were granted summary judgment on the § 1983 claims based

upon Eleventh Amendment immunity, and plaintiff did not appeal the

district court’s grant of summary judgment on this basis. Having dis-

missed all federal claims, the district court declined to exercise supple-

mental jurisdiction over the remaining state law claims and they were

dismissed without prejudice. Accordingly, while all defendants, with the

exception of Bradley, remain parties on appeal, only the allegations of

unlawful conduct by Deeds are at issue.

8 CARR v. DEEDS

II.

We begin with plaintiff’s appeal from the district court’s order

granting summary judgment on the deadly force claim brought under

§ 1983, and plaintiff’s related appeal from the district court’s order

excluding plaintiff’s expert witness under Rule 37(c)(1). We affirm

the district court’s order granting summary judgment to Deeds on the

deadly force claim, although we do so based upon qualified immunity.2

We also conclude that the district court did not abuse its discretion in

excluding the plaintiff’s expert witness.

A.

Under the doctrine of qualified immunity, police officers perform-

ing their discretionary duties "are shielded from liability for civil

damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Because "[q]ualified immunity is an entitlement not to stand trial or

face the other burdens of litigation . . . rather than a mere defense to

liability," it is important to "resolv[e] immunity questions at the earli-

est possible stage in litigation." Saucier, 533 U.S. at 200-01 (internal

quotation marks and citation omitted). When qualified immunity is

asserted, the court must consider the requisites of the defense in the

proper sequence. See id. at 200. We must first evaluate whether,

viewing the facts in the light most favorable to the plaintiff, the offi-

cer has violated a constitutional right; if so, then we proceed to deter-

mine whether that right was clearly established at the time of the

violation. See id. at 201.

We begin our analysis of an excessive force claim brought under

§ 1983 "by identifying the specific constitutional right allegedly

infringed by the challenged application of force." Graham v. Connor,

490 U.S. 386, 394 (1989). With regard to plaintiff’s death claim, that

constitutional right was Morgan’s Fourth Amendment right to be free

2

Because we conclude that Deeds is entitled to qualified immunity, we

need not address the alternative claim that the action did not survive

Morgan’s death.

CARR v. DEEDS 9

of arrests, investigatory stops, or other seizures effectuated by exces-

sive force. See id. at 388.

A claim that a police officer used such excessive force during an

arrest is analyzed under an "objective reasonableness" standard. An

officer’s actions are not excessive if they "are ‘objectively reasonable’

in light of the facts and circumstances confronting [him], without

regard to [his] underlying intent or motivation." Id. at 397. Determin-

ing the reasonableness of the challenged actions "requires a careful

balancing of the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing governmental

interests at stake." Id. at 396 (internal quotation marks omitted).

Proper application of the test of reasonableness also "requires careful

attention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight."

Id. "Because ‘police officers are often forced to make split-second

judgments — in circumstances that are tense, uncertain, and rapidly

evolving,’ the facts must be evaluated from the perspective of a rea-

sonable officer on the scene, and the use of hindsight must be

avoided." Waterman v. Batton, 393 F.3d 471, 476-77 (4th Cir. 2005)

(quoting Graham, 490 U.S. at 397) (internal citation omitted).

"[T]he intrusiveness of a seizure by means of deadly force is

unmatched." Tennessee v. Garner, 471 U.S. 1,9 (1985). However,

such deadly force may be employed "[w]here the officer has probable

cause to believe that the suspect poses a threat of serious physical

harm, either to the officer or to others." Id. at 11. "Thus, if the suspect

threatens the officer with a weapon or there is probable cause to

believe that he has committed a crime involving the infliction or

threatened infliction of serious physical harm, deadly force may be

used if necessary to prevent escape, and if, where feasible, some

warning has been given." Id. at 11-12.

B.

In this case, Morgan was the subject of at least two valid warrants

for his arrest, as well an order for involuntary commitment initiated

by his mother, certifying that he was addicted to either alcohol or

10 CARR v. DEEDS

drugs and that this addiction was likely to cause serious harm to him-

self or others. The day before Morgan’s death, Morgan told his

mother "that he would take a bullet in the head before he would go

to jail." J.A. 91. He also told the Hollidays that he would "kill himself

or anyone who tried to take him down including the police," J.A. 132,

and that he "would do what it took not to go back" to jail. J.A. 135.

He left the Hollidays on the day of his death in possession of a gun

and ammunition, and had been smoking marijuana. In addition, the

officers had been advised that a man, armed with a handgun, had

attempted to stop a woman driving a car on a nearby road. When Far-

mer stopped Morgan’s vehicle, Morgan refused Farmer’s command

to place his hands in view, jumped from the vehicle, fired at least two

rounds from his handgun, and fled into the woods. Morgan likewise

refused orders by Deeds and Bradley to surrender, and fired several

rounds at the troopers.

Under the circumstances, we have no trouble concluding, as a mat-

ter of law, that a reasonable officer could have believed that Morgan

posed a significant threat of serious physical harm to them, their fel-

low officers, and any others who might encounter him during his

flight. Accordingly, absent any evidence negating the threat, Deeds

would clearly be entitled to qualified immunity for his use of deadly

force.

C.

Plaintiff does not directly dispute that Morgan fired upon the offi-

cers, or that Morgan posed a significant risk to himself and others

when Farmer attempted to take him into custody. Rather, plaintiff

alleges that Deeds and Bradley tracked Morgan down in the woods,

disarmed or incapacitated Morgan, and then placed their pistols

against Morgan’s head and executed him.3 Because the only evidence

3

Plaintiff’s complaint also sets forth a series of wholly unsubstantiated

allegations regarding the supposed "motive" for this murder, and an alle-

gation that Deeds deceived her into bringing the petition for involuntary

commitment. Basically, plaintiff claims that state troopers had been deal-

ing drugs, distributing alcoholic beverages to underage girls, and engag-

ing in the sexual assault of underage girls, and that Morgan was arrested

on June 20 and murdered on July 10 because he had discovered this

CARR v. DEEDS 11

submitted in support of this allegation of an execution-style murder

is contained in the reports of Dr. John Cooper, we turn now to plain-

tiff’s appeal of the district court’s order excluding Dr. Cooper as an

expert witness. We review the district court’s exclusion of plaintiff’s

expert witness for an abuse of discretion. See Southern States Rack

& Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 (4th Cir.

2003).

Rule 26(a)(2) of the Federal Rules of Civil Procedure imposes spe-

cific requirements for the disclosure of expert testimony during the

discovery period. Rule 26(a)(2)(A) provides that each "party shall dis-

close to other parties the identity of any person who may be used at

trial to present evidence under Rules 702, 703, or 705 of the Federal

Rules of Evidence." Fed. R. Civ. P. 26(a)(2)(A). Rule 26(a)(2)(B),

however, imposes additional requirements if the expert witness "is

retained or specially employed to provide expert testimony in the

case." Fed. R. Civ. P. 26(a)(2)(B). For such witnesses, the disclosure

must "be accompanied by a written report prepared and signed by the

witness" which includes:

a complete statement of all opinions to be expressed and the

basis and reasons therefor; the data or other information

considered by the witness in forming the opinions; any

exhibits to be used as a summary of or support for the opin-

ions; the qualifications of the witness, including a list of all

publications authored by the witness within the preceding

ten years; the compensation to be paid for the study and tes-

timony; and a listing of any other cases in which the witness

has testified as an expert at trial or by deposition within the

preceding four years.

wrongdoing and threatened to disclose it. Although the record on appeal

contains testimony from several women regarding alleged wrongdoing

on the part of some troopers, there is no testimony that Morgan was

aware of such conduct, that Morgan made threats to expose it, or, for that

matter, that Deeds or Bradley were involved in the alleged wrongful con-

duct. Plaintiff also failed to produce evidentiary support for her own alle-

gation that Deeds deceived her.

12 CARR v. DEEDS

Fed. R. Civ P. 26(a)(2)(B). The required disclosures must be made as

directed by the court’s scheduling order or, if none, no later than

ninety days prior to the trial, and must be supplemented when

required under Rule 26(e)(1). See Fed. R. Civ. P. 26(a)(2)(c).

Rule 37(c)(1) provides that "[a] party that without substantial justi-

fication fails to disclose information required by Rule 26(a) . . . is not,

unless such failure is harmless, permitted to use as evidence at trial,

at a hearing, or on a motion any witness or information not so dis-

closed." Fed. R. Civ. P. 37(c)(1) (emphasis added). It is the burden

of the party facing sanctions to show that the failure to comply was

either substantially justified or harmless. See Southern States, 318

F.3d at 596. The district court has "broad discretion to determine

whether a nondisclosure of evidence is substantially justified or harm-

less." Id. at 597.

In this case, plaintiff filed her complaint on June 13, 2003, attach-

ing the initial and supplemental reports of Dr. Cooper. In the reports,

Dr. Cooper identifies himself as an Independent Medical Examiner

with California Autopsy and Consultation in Fair Oaks, California,

but there is no further information or elaboration regarding his cre-

dentials. In the reports, Dr. Cooper opines that Morgan died from

"multiple bullet wounds to the head, administered at close range by

one or more handguns," and that three of the wounds "exhibit charac-

teristics of contact wounds." J.A. 21-22. Given that he identified him-

self only as a medical examiner, Dr. Cooper also asserts the rather

remarkable opinion that Morgan "had been disarmed, if in fact he was

ever armed, and he had been incapacitated by shotgun fire" prior to

his "purposeful execution," and that the police officers were not "act-

ing lawfully in self-defense or in the interest of public safety." J.A.

22.

On September 10, 2003, the district court entered its scheduling

order, setting forth a discovery deadline of June 1, 2004, and a trial

date of August 25, 2004. Plaintiff was required to make her expert

disclosures by February 1, 2004; defendants were required to make

their expert disclosures by March 1, 2004. Plaintiff, however, did not

serve a Rule 26(a)(2)(B) disclosure for Dr. Cooper by the February

1 deadline, and in fact never filed the requisite disclosure. Defendants

served a Rule 26(a)(2)(B) disclosure in accordance with their March

CARR v. DEEDS 13

1 deadline, attaching the curriculum vitae and list of testimony for

their independent expert, Dr. David Fowler, and served a supplemen-

tal disclosure on March 30, which contained more detailed opinions

of Dr. Fowler.

On May 21, 2004, defense counsel advised plaintiff’s counsel that

the latter’s failure to provide the requisite information with respect to

Dr. Cooper rendered defendants "unable to sufficiently prepare for his

deposition which we had hoped to take on May 27, 2004." J.A. 401.

Defense counsel also advised that they would "move to exclude his

opinions accordingly." J.A. 401.

Plaintiff’s counsel contends that he made three unanswered tele-

phone calls to defense counsel regarding the cancellation of the depo-

sition and that he faxed a letter in response. However, plaintiff’s

counsel made no belated effort to obtain the requisite information or

serve a disclosure for Dr. Cooper. Instead, plaintiff’s counsel pointed

to the reports of Dr. Cooper attached to the complaint and advised

defense counsel that "[i]f you believe more is required perhaps you

should review the information you provided regarding Dr. Fowler."

J.A. 409. Three days later, plaintiff’s counsel faxed a second letter to

defense counsel advising that the "Plaintiff’s Rule 26 documents are

being copied and will be mailed to you tomorrow provided you agree

to do the same with your Rule 26 documents." J.A. 418. Despite this

representation, and the fact that defendants had filed and supple-

mented their expert disclosure two months earlier, plaintiff still did

not serve a disclosure or forward any documents containing the

required information.

Discovery closed on June 1, 2004. On June 21, 2004, defendants

moved under Rule 37(c)(1) to exclude Dr. Cooper due to plaintiff’s

failure to provide the required information. In response to the motion,

plaintiff again offered no explanation, nor made any attempt at

belated compliance. Instead, plaintiff complained that defendants’

disclosure of Dr. Zia Sabet "d[id] not contain any of the type of infor-

mation that defendants argue was not provided for Dr. Cooper." J.A.

403. Plaintiff also asserted that defense counsel did not act in good

faith to resolve the issue because they had failed to return plaintiff’s

counsel’s telephone calls, Dr. Cooper’s deposition had been sched-

uled for approximately one month before it was cancelled, and defen-

14 CARR v. DEEDS

dants’ expert disclosure of Dr. Fowler was initially incomplete and

not supplemented until March 30.

On May 28, 2004, defendants advised plaintiff that Dr. Sabet, the

West Virginia medical examiner who conducted Morgan’s autopsy,

was "not a witness who was retained or specially employed by the

defendants to provide expert testimony in the matter but rather had

performed the autopsy in the regular course of employment with the

coroner’s office." J.A. 415-16. There was, therefore, no requirement

that defendants complete a Rule 26(a)(2)(B) disclosure for the wit-

ness. As for Dr. Fowler, defendants’ disclosure notified plaintiff that

Dr. Fowler would be testifying with regard to the examinations per-

formed by Dr. Cooper and Dr. Sabet, and attached his curriculum

vitae and list of testimony. The disclosure was supplemented on

March 30 with a more detailed report of Dr. Fowler’s opinions and

conclusions, affording plaintiff sufficient time to notice and prepare

for Dr. Fowler’s deposition.

On March 23, 2005, more than one year after the expert disclosures

were due under the scheduling order and more than ten months after

the dispute over the deposition of Dr. Cooper arose, the district court

granted defendants’ motion to exclude Dr. Cooper as a witness. As of

that time, plaintiff had still failed to provide the information required

under the rule.

On appeal, plaintiff asserts that her failure to comply with the rule

was either "surely inadvertent" or justified by her belief that defen-

dants had failed to comply with their obligations under the rule; plain-

tiff also contends that her failure was harmless because Dr. Cooper’s

opinions were attached to the complaint. We address each contention

in turn.

Initially, we note that plaintiff has not demonstrated that her failure

was inadvertent. Plaintiff has provided no explanation for her initial

failure to file the disclosure. And, when notified that she had failed

to comply, plaintiff’s response — that the "Rule 26 documents are

being copied and will be mailed to you tomorrow provided you agree

to do the same with your Rule 26 documents" — was clearly more

in the nature of an outright refusal to comply. J.A. 418. In short, even

if we were to consider mere inadvertence a "substantial justification"

CARR v. DEEDS 15

under Rule 37(c)(1), plaintiff has not demonstrated that her failure to

comply was an inadvertent act.

To the extent plaintiff asserts that her refusal to provide the infor-

mation was "substantially justified" because defendants did not com-

ply with Rule 26(a)(2)(B), we are equally unmoved. Aside from the

fact that defendants’ alleged failure could not have precipitated plain-

tiff’s failure (given that the plaintiff’s deadline had passed a month

earlier), litigants are not excused from their obligations under the

rules of procedure merely because an opponent has failed to comply

with his obligations. The rules provide for remedies in the event an

opponent fails to comply, and we note that plaintiff did not file a Rule

37(a)(1) motion to exclude Dr. Fowler as an expert witness based

upon the asserted belief that defendants had fallen short.

Plaintiff’s claim that her failure was harmless because Dr. Cooper’s

reports were attached to the complaint is also unavailing. Plaintiff

argues that the "simple failure to disclose fairly rote information . . .

did not unduly surprise or prejudice Defendants". Appellant’s Brief

at 22. Like the district court, we are unpersuaded. As noted above, Dr.

Cooper’s reports reveal nothing more than that he is an independent

medical examiner with California Autopsy and Consultation. They

provide absolutely no information about his qualifications, any publi-

cations authored by him, the compensation he would be paid for his

work and testimony, or other cases in which he had testified as an

expert. Nor is the omitted information fairly characterized as "rote."

Indeed, we have previously recognized the critical importance of this

type of information, particularly in cases which turn upon expert testi-

mony:

Rule 26 disclosures are often the centerpiece of discovery

in litigation that uses expert witnesses. A party that fails to

provide these disclosures unfairly inhibits its opponent’s

ability to properly prepare, unnecessarily prolongs litigation,

and undermines the district court’s management of the case.

For this reason, "[w]e give particularly wide latitude to the

district court’s discretion to issue sanctions under Rule

37(c)(1)".

Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir.

2005) (emphasis added) (quoting Southern States, 318 F.3d at 595).

16 CARR v. DEEDS

This is such a case. Plaintiff has no evidence, beyond Dr. Cooper’s

opinions, to substantiate her allegation that Deeds and Bradley uncon-

stitutionally employed deadly force against Morgan. Yet, as a conse-

quence of plaintiff’s failure to provide the information plainly

required by the rule, defendants were not permitted to investigate Dr.

Cooper’s licensure, training, background, or expertise, nor were they

in a position to determine whether Dr. Cooper possessed the requisite

qualifications to render the rather broad range of opinions contained

in his reports.

In sum, we cannot say that the district court abused its discretion

by excluding Dr. Cooper as a witness because plaintiff did not dem-

onstrate substantial justification for her failure to comply with Rule

26(a)(2)(B), and the failure prejudiced defendants in their ability to

defend against the accusations made by Dr. Cooper in a timely fash-

ion. Every litigant in federal court is plainly entitled under Rule

26(a)(2)(B) to be given the information spelled out therein, and none

shoulder the burden to independently investigate and ferret out that

information as best they can and at the expense of their client. Indeed,

Rule 26 provides that "[i]f a report from [an] expert is required under

subdivision (a)(2)(B), the deposition shall not be conducted until after

the report is provided." Fed. R. Civ. P. 26(b)(4)(emphasis added). The

available penalty for failure to comply with Rule 26(a)(2)(B) is

equally plain, and if a litigant refuses to comply with the requirements

of the rule, he does so at his peril. See Saudi, 427 F.3d at 274 (noting

that "[l]itigants who fail to comply with court scheduling and discov-

ery orders should not expect courts of appeal to save them from the

consequences of their own delinquence.").

D.

To be sure, plaintiff’s allegations in this case are most serious, but

they are equally serious for both sides of this controversy. The district

court afforded plaintiff a full and sufficient time to discover and pro-

duce evidence to substantiate her allegations by proper and admissible

evidentiary support, but plaintiff failed to do so. "One of the principal

purposes of the summary judgment rule is to isolate and dispose of

factually unsupported claims or defenses," and Rule 56 must be inter-

preted and applied "in a way that allows it to accomplish this pur-

pose." Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).

CARR v. DEEDS 17

Granting summary judgment to Deeds squarely serves this purpose of

Rule 56, as well as the directive that we not delay granting govern-

mental officials qualified immunity in appropriate cases. Accordingly,

we affirm the district court’s exclusion of plaintiff’s expert witness

and the district court’s grant of summary judgment against plaintiff

on the § 1983 excessive force claim arising from Morgan’s death.

III.

We now turn to plaintiff’s appeal from the district court’s order

granting summary judgment on her claim that Deeds employed exces-

sive force against Morgan following the June 20 arrest. Deeds moved

for summary judgment on the basis of qualified immunity for this

claim as well, asserting that there is insufficient evidence to prove that

he was involved in any altercation with Morgan, as well as insuffi-

cient evidence that Morgan’s alleged injuries were more than de

minimis.

"[E]xcessive force claims of pretrial detainees are governed by the

Due Process Clause of the Fourteenth Amendment." Riley v. Dorton,

115 F.3d 1159, 1166 (4th Cir. 1997) (en banc). To succeed, the plain-

tiff must first demonstrate "that Defendants ‘inflicted unnecessary and

wanton pain and suffering’" upon the detainee. Taylor v. McDuffie,

155 F.3d 479, 483 (4th Cir. 1998) (quoting Whitley v. Albers, 475

U.S. 312, 320 (1986)). "The proper inquiry is whether the force

applied was in a good faith effort to maintain or restore discipline or

maliciously and sadistically for the very purpose of causing harm." Id.

(internal quotation marks omitted). "Even if there is a genuine issue

of material fact as to whether Defendants behaved maliciously or

sadistically after the need for force has subsided," plaintiff must also

demonstrate that the injuries were "more than de minimis" or that

"‘the force used [is] of a sort repugnant to the conscience of mankind

. . . or the pain itself [is] such that it can properly be said to constitute

more than de minimis injury.’" Id. (quoting Norman v. Taylor, 25

F.3d 1259, 1263 n.4 (4th Cir. 1994) (en banc)).4

4

The de minimis injury exception stems from the recognition that there

is "a de minimis level of imposition [of punishment] with which the Con-

stitution is not concerned." Ingraham v. Wright, 430 U.S. 651, 674

18 CARR v. DEEDS

Accordingly, in order to avoid summary judgment on the basis of

qualified immunity, it was incumbent upon plaintiff to produce suffi-

cient admissible evidence from which a jury could conclude that

Deeds employed at least some force against Morgan in a malicious or

sadistic manner, and that the injuries resulting from such force were

more than de minimis.5 Deeds is entitled to qualified immunity

because, regardless of the severity of Morgan’s alleged injuries, the

record is devoid of any facts to prove that Deeds employed the force

that inflicted those injuries.

Viewing the evidence in the light most favorable to plaintiff, it

appears that Deeds and at least two other law enforcement officers

arrested Morgan at Arbaugh’s home on June 20, and that one or more

of these officers transported Morgan to the State Police Barracks.

Morgan was then transported to the Southern Regional Jail, where

(1977); cf. Hudson v. McMillian, 503 U.S. 1 (1992). Such "de minimis

uses of physical force" are "necessarily exclude[d] from constitutional

recognition" and not cognizable under § 1983. Riley, 115 F.3d at 1166.

We applied the de minimis rule of Hudson, holding that "a plaintiff can-

not prevail on an Eighth Amendment excessive force claim if his injury

is de minimis." Norman, 25 F.3d at 1263. And, we extended that rule to

claims under the Due Process clause in Riley. Riley, 115 F.3d at 1166.

Although the Constitution does "not require that an injury be serious or

leave visible marks or scars" to be actionable, we held that "de minimis

injury can serve as conclusive evidence that de minimis force was used."

Riley, 115 F.3d at 1168 (quoting Norman, 25 F.3d at 1261). Force that

is "of a sort repugnant to the conscience of mankind" see Hudson, 503

U.S. at 10 (internal quotation marks omitted), is "expressly outside the

de minimis force exception," Norman, 25 F.3d at 1263 n.4. See also

Riley, 115 F.3d at 1168 n.4 (listing, as examples of such repugnant force,

acts such as "forcibly pumping a suspect’s stomach for evidence after

unlawfully entering his house and bedroom or severely whipping and

hanging a suspect in order to obtain a confession." (internal citations

omitted)).

5

Plaintiff does not claim that "the force used [is] of a sort repugnant

to the conscience of mankind . . . or [that] the pain itself was such that

it can properly be said to constitute more than de minimis injury," Taylor,

155 F.3d at 483 (internal quotation marks omitted), and there is no evi-

dence to support such a claim.

CARR v. DEEDS 19

witnesses observed some minor injuries when Morgan was processed.

Other witnesses observed a few additional, but still relatively minor,

injuries after Morgan was released from jail. However, plaintiff pre-

sented no admissible testimony or other evidence from which a jury

could conclude that any of those injuries were inflicted by Deeds.

No witness observed any altercation between Morgan and any state

police officer. Although Dr. Bookout testified that Morgan told him

that some of the injuries were the result of an altercation with a state

police officer, Morgan did not identify Deeds as the officer involved

or provide any facts as to the circumstances of the alleged altercation.

Thus, the only evidence that plaintiff can point to in an effort to impli-

cate Deeds is the testimony of the three family members and Arbaugh

to the effect that Morgan either told them or indicated by pointing that

Deeds had inflicted the injuries. These statements by Morgan are

hearsay and not admissible to create a genuine issue of material fact

on the question of whether Deeds inflicted those injuries.

Plaintiff’s attempt to demonstrate that Deeds made an "adoptive

admission" to assaulting Morgan because he was present in the room

when Morgan made the statements to his family members also fails.

Under the Federal Rules of Evidence, "[a] statement is not hearsay if

. . . [t]he statement is offered against a party and is . . . a statement

of which the party has manifested an adoption or belief in its truth."

Fed. R. Civ. P. 801(d)(2)(B). "A party may manifest adoption of a

statement in any number of ways, including through words, conduct,

or silence." United States v. Robinson, 275 F.3d 371, 383 (4th Cir.

2001). However, "[w]hen a statement is offered as an adoptive admis-

sion, the primary inquiry is whether the statement was such that,

under the circumstances, an innocent defendant would normally be

induced to respond, and whether there are sufficient foundational

facts from which the jury could infer that the defendant heard, under-

stood, and acquiesced in the statement." United States v. Williams,

445 F.3d 724, 735 (4th Cir. 2006) (internal quotation marks omitted).

In this case, there is testimony that Deeds was in the room when

the family was visiting, but plaintiff has not demonstrated "sufficient

foundational facts from which the jury could infer that the defendant

heard, understood, and acquiesced in the statement." Id. (internal quo-

tation marks omitted). Nor has plaintiff offered an argument that a

20 CARR v. DEEDS

police officer, conducting his official duties in the presence of a

detainee and his family, "would normally be induced to respond" to

the detainee’s claim, made solely to his family, that the officer had

assaulted him. Indeed, we think it more likely that the officer would

ignore the statement rather than risk antagonizing or inciting the

detainee or his family by disputing it.

Finally, even if Deeds had made an adoptive admission, the admis-

sion would not save plaintiff’s case from summary judgment. An out-

right admission by Deeds that he inflicted the injuries would reveal

nothing about the circumstances of the force employed, and plaintiff

would still suffer from the unfulfilled burden of establishing that the

force was excessive under the circumstances; i.e., that it was inflicted

"maliciously and sadistically for the very purpose of causing harm,"

rather than "in a good faith effort to maintain or restore discipline."

Taylor, 155 F.3d at 483 (internal quotation marks omitted).

This brings us to plaintiff’s argument that Deeds bore the burden

to present an affidavit stating whether he heard Morgan’s statement,

whether he was involved in an altercation with Morgan, and, if so,

what the circumstances were surrounding that altercation. Plaintiff

argues Deeds’ failure to present evidence that Morgan engaged in

conduct that prompted the use of responsive force or otherwise

explain Morgan’s injuries creates the presumption that Deeds

employed excessive and punitive force against Morgan that day. At

a minimum, plaintiff argues, Deeds failed to properly support his

motion for summary judgment, leaving a question of fact regarding

how Morgan’s injuries were sustained.6

This argument is wholly without merit. As an initial premise, we

note that the plaintiff did not raise as an issue on appeal the defen-

dants’ failure to file a properly supported motion for summary judg-

ment under Rule 56. But even if we were to assume that plaintiff’s

6

It does not appear that plaintiff ever deposed Deeds, although he was

certainly identified as a witness. There is an assertion in the record below

that plaintiff scheduled Deeds’ deposition, but chose to cancel it. Plain-

tiff’s counsel offered no explanation as to why the answers to these ques-

tions were not pursued through discovery.

CARR v. DEEDS 21

"burden" issue is properly before us, plaintiff’s argument is squarely

foreclosed by Celotex.

In Celotex, the district court granted summary judgment against

plaintiff because the plaintiff "was unable to produce evidence in sup-

port of her allegation in her wrongful-death complaint that the dece-

dent had been exposed to petitioner’s asbestos products." 477 U.S. at

319. The Court of Appeals reversed, holding that the motion was

defective because the defendant had "made no effort to adduce any

evidence, in the form of affidavits or otherwise, to support its

motion." Id. at 321 (internal quotation marks omitted). The Supreme

Court disagreed, holding that although the "party seeking summary

judgment always bears the initial responsibility of informing the dis-

trict court of the basis for its motion, and identifying those portions

of ‘the pleadings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact," id. at

323 (emphasis added), there is "no express or implied requirement in

Rule 56 that the moving party support its motion with affidavits or

other similar materials negating the opponent’s claim." Id.

In short, there is no burden upon "the party moving for summary

judgment to produce evidence showing the absence of a genuine issue

of material fact." Id. at 325 (emphasis added). Rather, "the burden on

the moving party may be discharged by ‘showing’ — that is, pointing

out to the district court — that there is an absence of evidence to sup-

port the nonmoving party’s case." Id. "[R]egardless of whether the

moving party accompanies its summary judgment motion with affida-

vits, the [summary judgment] motion may, and should, be granted so

long as whatever is before the district court demonstrates that the

standard for the entry of summary judgment, as set forth in Rule

56(c), is satisfied." Id. at 323. Indeed, "district courts are widely

acknowledged to possess the power to enter summary judgments sua

sponte, so long as the losing party was on notice that she had to come

forward with all of her evidence." Id. at 326. In sum, Deeds, having

denied the material allegations of the complaint and filed a motion for

summary judgment pointing out the absence of evidence to support

plaintiff’s case, bore no burden to produce an affidavit denying plain-

tiff’s allegations or to otherwise support his motion with materials

negating the claim of an unconstitutional use of force.

22 CARR v. DEEDS

To conclude, we hold that Deeds is entitled to qualified immunity

as a matter of law because the plaintiff failed to bring forth admissible

evidence from which the jury could conclude that he was involved in

an altercation with Morgan, and certainly no evidence that Deeds

employed force that was excessive under the circumstances. Deeds’

entitlement to qualified immunity, therefore, arose well before any

need to evaluate the severity of Morgan’s injuries. Accordingly, we

affirm the district court’s grant of qualified immunity to Deeds.

IV.

For the foregoing reasons, we affirm the district court’s order

excluding plaintiff’s expert report and affirm the district court’s order

granting summary judgment to the defendants.

AFFIRMED