                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 16-1101


CHRISTOPHER J. COVEY; LELA G. COVEY,

                Plaintiffs - Appellants,

          v.

ASSESSOR OF OHIO COUNTY; KATHIE HOFFMAN, Head Assessor; ROY
CREWS, Field Deputy; UNKNOWN ASSESSOR; OHIO COUNTY SHERIFF;
PATRICK BUTLER, Sheriff; ALEX ESPEJO, Corporal; RON WHITE,
Deputy; NELSON CROFT, Lieutenant; NICHOLE SEIFERT, Officer;
HNK, Unknown Officer; DLG, Unknown Officer; DEPARTMENT OF
JUSTICE; OHIO VALLEY DRUG TASK FORCE; OHIO COUNTY ANIMAL
SHELTER; DOUG MCCROSKY, Supervisor; UNKNOWN DOG WARDENS (2);
UNITED STATES OF AMERICA; ROBERT L. MANCHAS, S.A.,

                Defendants - Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cv-00147-FPS-JES)


Submitted:   August 31, 2016                 Decided:   November 21, 2016


Before GREGORY,   Chief   Judge,   and   FLOYD    and   THACKER,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Christopher J. Covey, Lela G. Covey, Appellants Pro Se. Thomas
E. Buck, Bruce M. Clark, Jr., BAILEY & WYANT, PLLC, Wheeling,
West Virginia; Edward Himmelfarb, Mark B. Stern, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Betsy C. Jividen, Erin
Carter Tison, Assistant United States Attorneys, Wheeling, West
Virginia;   Lee   Murray   Hall,   Sara   A.   Walling,   JENKINS
FENSTERMAKER, PLLC, Huntington, West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Christopher J. Covey and Lela G. Covey appeal the district

court’s order granting summary judgment to Defendants on their

claims under 42 U.S.C. § 1983 (2012), and Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

On the Coveys’ appeal of the district court’s dismissal of their

claims under Fed. R. Civ. P. 12(b)(6), we reversed and remanded

to the district court.             Covey v. Assessor of Ohio Cty., 777 F.3d

186    (4th    Cir.    2015).         We      concluded    that    “the    Coveys      have

sufficiently pleaded under § 1983 and Bivens that [Defendants]

Crews,    Corporal          Espejo,     and    Special     Agent      Manchas    violated

clearly established law under the Fourth Amendment.”                               Id. at

198.      On remand, the parties engaged in discovery and filed

motions       for    summary      judgment.        The     district      court   granted

summary judgment to Defendants, and the Coveys timely appealed.

       On appeal, the Coveys first argue that the district court

erred in denying their motion for default judgment because the

Defendants      failed       to   file     answers    to      their    complaint    until

several months after our remand.                     However, the district court

extended the deadline for Defendants to file their answers, to

which the Coveys did not object.                   Nor do the Coveys assert on

appeal    any       error    in   the    extension       of    time    granted    by   the

district court.             Moreover, the Defendants had filed motions to

dismiss and otherwise vigorously litigated the case after remand

                                               3
and filed their answers within the deadline established by the

district   court.        Accordingly,       we    conclude      that   the     district

court correctly denied the Coveys’ motion for default.

     The Coveys next challenge the district court’s finding that

their only surviving claims were their § 1983 claims against

Hoffman,   Crews,       the    unnamed    assessor,      and    Espejo,    and    their

Bivens claim against Manchas, arguing that all of their claims

survived    the    first      appeal.      “[T]he     mandate     rule     forecloses

litigation    of    issues     foregone    on    appeal.”        United      States   v.

Pileggi, 703 F.3d 675, 679 (4th Cir. 2013) (internal quotation

marks, emphasis, and ellipsis omitted).                   Under this rule, “any

issue that could have been but was not raised on appeal is

waived and thus not remanded.”                 Doe v. Chao, 511 F.3d 461, 465

(4th Cir. 2007) (internal quotation marks omitted).                       It is well-

established      that   a     party’s    failure    to   raise    a    claim     in   the

opening brief “triggers abandonment of that claim on appeal.”

Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.

1999).     This Court reviews the district court’s interpretation

of the mandate de novo.          Pileggi, 703 F.3d at 679.

     In Appellants’ first appeal, their counseled brief argued

that Espejo, Manchas, and the data collector who visited them

violated   the     Fourth     Amendment;       Appellants      expressly     abandoned

their claims regarding the events that followed the issuance of

a search warrant.           Upon review of the Coveys’ filings in their

                                           4
first    appeal,    we    conclude     that    the    district   court    correctly

ascertained this Court’s mandate, and limited the Coveys’ claims

accordingly.

       Appellants       next   argue   that    the    district   court    erred   by

denying their request to amend their complaint to add two named

assessors.     The district court denied leave to amend as futile

because the proposed amendment did not relate back to the filing

of the original complaint and would therefore be barred by the

statute of limitations.            Because the Coveys did not make their

request to amend the complaint until well after Appellees served

their motions to dismiss, this amendment was permissible “only

with the opposing party’s written consent or the court’s leave.”

Fed. R. Civ. P. 15(a)(2).              “The court should freely give leave

when    justice    so    requires.”      Id.     Accordingly,      “[a]    district

court’s denial of leave to amend is appropriate when (1) the

amendment would be prejudicial to the opposing party; (2) there

has been bad faith on the part of the moving party; or (3) the

amendment would have been futile.”                   Drager v. PLIVA USA, Inc.,

741 F.3d 470, 474 (4th Cir. 2014).

       “Where the statute of limitations bars a cause of action,

amendment may be futile and therefore can be denied.”                       United

States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000).                         “When

proposed claims in an amendment are barred by the statute of

limitations,       Rule    15(c)   provides      for     the   relation   back    of

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amendments        to        the         original       pleading       under        certain

circumstances.”            Id.    As relevant here, Rule 15(c)(1) requires

that the party to be added to the action received timely notice

of the action and “knew or should have known that the action

would have been brought against it, but for a mistake concerning

the proper party’s identity.”                   Fed. R. Civ. P. 15(c)(1)(C)(ii).

“The question is not whether the amending party knew or should

have known the identity of the proper defendant, but whether the

potential defendant knew or should have known that it would have

been    named    as    a    defendant       but     for    an    error.”      Wilkins   v.

Montgomery, 751 F.3d 214, 224 (4th Cir. 2015) (quoting Krupski

v.     Costa    Crociere,         560    U.S.       538,   548     (2010))     (brackets,

ellipses, and internal quotation marks omitted).                            Although the

statute of limitations is an affirmative defense that must be

established by the defendant, Goodman v. Praxair, Inc., 494 F.3d

458, 464 (4th Cir. 2007), when relation back is required to

satisfy    the    statute         of    limitations,        the    burden     is   on   the

plaintiff to prove that Rule 15(c) is satisfied.                           W. Contracting

Corp. v. Bechtel Corp., 885 F.2d 1196, 1200 (4th Cir. 1989).

       “Generally, we review a district court’s denial of a motion

for leave to amend for abuse of discretion.                        But where, as here,

the district court denied such a motion on grounds of futility,

we employ the same standard that would apply to our review of a

motion to dismiss.”              United States ex rel. Ahumada v. NISH, 756

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F.3d 268, 274 (4th Cir. 2014) (citation omitted).                         The record

indicates that Appellants timely served the Assessor’s office,

Hoffman,    and   Crews    with    a   complaint       that    alleged    facts    that

plainly    indicated      that    Appellants       would      have   named   the    two

assessors as defendants had they known that the assessors were

the data collectors who visited their house on October 21, 2009.

Thus, if the assessors were made aware of the contents of the

complaint    against      their   employer       and   supervisors,       they     would

have known that they would have been named as defendants but for

an error, and the claims against them would relate back to the

filing of the original complaint.                However, there is no evidence

indicating when the assessors learned of the contents of the

complaint, and the affidavit of one of the assessors, which was

not written until December 17, 2015, is silent on this issue.

Because Appellants failed to show that the assessors they sought

to add as defendants had timely notice of the suit, as required

by Rule 15(c), we affirm the district court’s denial of their

request to amend.

     Finally, the Coveys argue that the district court erred by

granting    summary       judgment     to       Hoffman,      Crews,     Espejo,    and

Manchas.     We review a district court’s order granting summary

judgment de novo.         Harris v. Norfolk S. Ry. Co., 784 F.3d 954,

962 (4th Cir. 2015).         Summary judgment is appropriate if “there

is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.”                             Fed. R. Civ. P.

56(a).      In determining whether a genuine issue of material fact

exists,     this     Court       “view[s]    the    facts       and    all     justifiable

inferences        arising       therefrom    in    the    light      most    favorable     to

. . . the nonmoving party.”              Jacobs v. N.C. Admin. Office of the

Courts,     780     F.3d     562,      565   n.1    (4th      Cir.     2015)      (internal

quotation marks omitted).

      The     Coveys       challenge     several         of   the     district      court’s

findings related to the assessors’ visit, and argue that the

assessors should reasonably have known not to approach their

house because a state statute provides that assessors are not to

enter property marked with “No Trespassing” signs, and that the

assessors conducted an unreasonable search of the curtilage of

their home.        Appellees respond that these issues are irrelevant

because the district court granted summary judgment to Hoffman

and   Crews    based       on    the   undisputed        fact   that       they   were    not

present     for    this     visit.       Because     there      is    no    evidence     that

Hoffman and Crews were involved in the challenged search, we

affirm summary judgment for Hoffman and Crews.

      The Coveys also challenge the district court’s finding that

Espejo and Manchas did not conduct an illegal search.                                    They

primarily argue that the district court’s finding that Espejo

and Manchas saw Mr. Covey on the back patio before they exited

their vehicle fails to construe the facts in the light most

                                             8
favorable to them.     Our review of the record, particularly the

photographs produced in discovery that clearly show that the

patio was visible from the driveway, lead us to conclude that

there is no genuine dispute that the officers could see the

patio as they approached the house.           Both officers attested that

they saw Mr. Covey at the patio as they drove up the driveway.

Mr.   Covey’s   testimony    that    this   was   not   possible   because   he

would have heard the vehicle approaching if he had been outside

at the time was speculative, as he acknowledged that he walked

in and out of the patio door frequently during the relevant time

period.    His testimony does not create a dispute of material

fact on this point.         Thus, while the exact point at which the

officers saw Mr. Covey is disputed, there is no evidence that

they did not see him prior to stepping off of the driveway and

approaching the patio.

      Appellants next argue that Espejo and Manchas conducted an

improper curtilage search after detaining Mr. Covey when they

approached the back patio to inspect the marijuana and look into

the basement to verify that the Coveys’ pet raccoon was caged.

The district court did not address this issue beyond noting in

its factual findings that Espejo and Manchas saw and smelled the

marijuana when they exited their vehicle.               We conclude that this

argument is without merit.          In our earlier consideration of this

case, we recognized that “[i]f the officers first saw Mr. Covey

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from   a    non-curtilage            area,       they     may   well    prevail       under       the

knock-and-talk exception at summary judgment.”                               Covey, 777 F.3d

at   193.        Appellants          do    not    dispute       that    Manchas      and    Espejo

smelled marijuana and saw it on the patio workbench when they

exited their vehicle and walked toward Mr. Covey.                                    Unlike the

situation in Florida v. Jardines, 133 S. Ct. 1409 (2013), the

officers     did       not    introduce          any     detection      equipment         into    the

curtilage,        but     identified          contraband         using       only    their        own

senses.          The    odor    of        marijuana       provided      probable       cause       to

believe that marijuana was present, and justified a search of

the curtilage.            United States v. Lewis, 606 F.3d 193, 198 (4th

Cir. 2010); United States v. Humphries, 372 F.3d 653, 658 (4th

Cir. 2004) (“We have repeatedly held that the odor of marijuana

alone can provide probable cause to believe that marijuana is

present in a particular place.”).                        Moreover, Manchas’ brief look

into the basement to verify that the Coveys’ pet raccoon was in

fact caged was a legitimate, limited search for officer safety

purposes, and did not offend the Fourth Amendment.                                  See Maryland

v.   Buie,       494    U.S.    325,       336-37       (1990)    (permitting         a    limited

protective        sweep      supported       by     a     reasonable      belief,         based    on

specific     and       articulable          facts,       that    the    area    to     be    swept

harbors an individual posing a danger to the officers); United

States      v.    Jones,       667    F.3d       477,     484    (4th    Cir.       2012)    (“The

linchpin     of    the       protective          sweep    analysis      is   not     the    threat

                                                  10
posed by the arrestee, but the safety threat posed by the house,

or   more    properly     by    unseen    third    parties   in    the   house.”

(internal quotation marks and brackets omitted)).                   We conclude

that the district court correctly found that the officers did

not violate the Coveys’ Fourth Amendment rights.

     We     have   considered     the    Coveys’   remaining      arguments   and

conclude    that   they   are    also    without   merit.      Accordingly,    we

affirm the district court’s judgment.                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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