                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-1579


DENISE   C.    WILKINS,   Individually   and   as   Personal
Representative of the Estate of Justin Lamar Davis,

                 Plaintiff – Appellant,

           v.

VICKI MONTGOMERY, Director, Central State Hospital, in her
individual and official capacities,

                 Defendant – Appellee,

           and

CENTRAL STATE HOSPITAL; THE COMMONWEALTH OF VIRGINIA;
UNIDENTIFIED EMPLOYEES OF CENTRAL STATE HOSPITAL, in their
individual and official capacities,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:12-cv-00152-JAG)


Argued:   March 18, 2014                     Decided:   May 5, 2014


Before GREGORY, WYNN, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Gregory and Judge Wynn joined
ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellant. John David Gilbody, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.    ON BRIEF: Kenneth T. Cuccinelli, II, Attorney
General, Wesley G. Russell, Jr., Deputy Attorney General, Peter
R. Messitt, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.




                               2
THACKER, Circuit Judge:

            Appellant Denise C. Wilkins (“Appellant”) appeals the

district court’s orders striking her expert witness; denying her

second    motion    to    amend     her    complaint;            and   granting      summary

judgment to Appellee Vicki Montgomery, Assistant Director for

Clinical Administration at Central State Hospital.                                  Appellant

brought this action against Montgomery after her son, Justin

Lamar Davis, was murdered by another patient at Central State

Hospital.          She     filed      three             claims:      grossly        negligent

supervision, gross negligence under the Virginia Wrongful Death

Act, and a 42 U.S.C. § 1983 claim for supervisory liability.

            The district court struck Appellant’s expert witness

because     he   was      disclosed       in       an     untimely      fashion;      denied

Appellant’s      second    motion     to   amend          her    complaint     to    add   two

defendants because such amendment would be futile; and finally,

concluded there was insufficient evidence to support the claims

against Montgomery, who was an assistant director in charge of

administrative matters at the time of Davis’s death.                                 For the

reasons set forth below, we affirm.

                                           I.

                                           A.

            On January 5, 2010, Justin Lamar Davis was transferred

to   Central     State      Hospital       (“CSH”),             an   inpatient      facility

providing treatment for patients with mental illnesses who are

                                               3
referred by the court system.                On February 16, 2010, George

Phillips was admitted to CSH while waiting to be prosecuted for

attempted capital murder.         Both Phillips and Davis were housed

in the forensic unit, Ward 39-8.

            CSH had a policy whereby staff would issue 24-hour

reports (also called “Administrator On Duty” or “AOD” reports)

regarding      patient   activity.      See   J.A.    355-68. 1     AOD   reports

during the week of February 21, 2010, reflect that Davis struck

a staff member in the face and hit another patient.                  On February

24, 2010, Phillips reported feeling threatened by Davis, and

Phillips stated he “will not give [Davis] another warning and he

will end up flying out of here in a helicopter to a hospital.”

Id. at 362.       Phillips told the staff that he “could get a pen

out of a staff’s pocket if he wanted and harm [him]self or

anyone else.”      Id.

            The next day, on February 25, 2010, Phillips and Davis

had an altercation in the gymnasium.                 Phillips attacked Davis

from behind, but Davis was not injured.                The AOD report, which

was   issued    the   following   day   on    February    26,     explained   that

Davis “feels others want to harm him and wanted to be moved off

the unit.”      J.A. 365.    It also stated that Dr. Sridhar Yaratha,


      1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                        4
the psychiatrist on Davis’s treatment team at CSH, was “aware”

of Davis’s desire to move.            Id.         In addition, the report stated

that after the altercation, Phillips told staff “he was tired of

Mr. Davis and that he could have easily snapped his neck.”                            Id.

On the evening and night of February 25, Phillips was “monitored

constantly by staff and behavior documented [on] every shift.”

Id.    Indeed, on that day, and for at least one week prior,

Phillips     was    on   suicide    observation           status    (“SOS”),     violence

observation        status    (“VOS”),         and       escape     observation     status

(“EOS”),     which       required    “15      minute[]       monitoring      checks    by

assigned staff.”         Id. at 356, 373.

             On February 27, 2010, Davis was also on VOS and also

required 15 minute checks.               The charge nurse, Lawrence Harris,

assigned to Essence Thompson, Forensic Mental Health Technician,

the   duty   of     carrying   out    the         15    minute   checks     that   night.

However, rather than conducting the required checks, both Harris

and Thompson were watching television in a nearby room.                            Between

9:36 p.m. and 9:56 p.m. that night, Phillips left his room,

entered Davis’s room, and proceeded to strangle Davis to death

in his bed.          It was not until the following morning, February

28, that another staff member discovered that Davis was dead.

             An     investigation        by       the     hospital     concluded      that

“[s]taff     [n]eglect”      led    to     Davis’s        murder,     and   found     that

“Thompson . . . remained seated in the chair directly facing the

                                              5
television” on the night of Davis’s death, which “provided []

Phillips the opportunity to do serious harm to [] Davis.”                                    J.A.

377.       In addition, the hospital report concluded Harris “failed

to provide the necessary supervision and leadership required to

ensure      []    Thompson       was   at     her      assigned      monitoring       post   and

carrying out her assigned duties.                          Instead, Mr. Harris sat one

seat from [] Thompson directly facing the television.”                                Id.

                                                  B.

                 Exactly two years after Davis’s death, February 27,

2012, Appellant -- Davis’s mother -- filed suit against CSH, the

Commonwealth          of   Virginia,         Vicki     Montgomery          (“Appellee”),     and

“Several         as   of   Yet   Unidentified              Employees       of   [CSH].” 2     See

Wilkins v. Cent. State Hosp., No. 3:12-cv-00152-JAG (E.D. Va.

Feb. 27, 2012), ECF No. 1.                        The original complaint contained

three counts:          wrongful death based on gross negligence, grossly

negligent         supervision,         and    a       42    U.S.C.     §    1983    claim     for

supervisory liability.

                 On April 4, 2012, Appellant filed the First Amended

Complaint        (“FAC”).        In    the    FAC,         Appellant   dropped       the    state

       2
       At oral argument, Appellant’s counsel told the court that
he filed this action 23 months after Davis’s death; however, we
note that this action was actually filed on the final day in the
two-year statute of limitations period.     See Oral Argument at
18:10-20, Wilkins v. Montgomery, No. 13-1579 (4th Cir. Mar. 18,
2014),     available     at     http://www.ca4.uscourts.gov/oral-
argument/listen-to-oral-arguments.



                                                  6
defendants, and the only defendants remaining were Appellee (in

her   individual         and     official          capacity),         who    was     incorrectly

listed    as     “director”        of    the        CSH,    and       “Several       as   of     Yet

Unidentified Employees of [CSH].”                         J.A. 9.           The FAC contained

the same three counts and allegations as the original complaint.

            On April 11, 2012, Appellee filed a motion to dismiss,

but withdrew that motion on May 4, 2012, when she filed a motion

for   summary       judgment.           In    the       motion    for       summary   judgment,

Appellee argued that because she was not director of CSH at the

time of Davis’s death, she had no supervisory responsibility or

authority      over      any     security          personnel,         treatment       staff,     or

medical staff.

               The district court entered a pre-trial order and set

the trial date for February 19, 2013.                           Appellant’s Rule 26(a)(2)

expert    disclosures          were   to      be       produced    by   October       22,      2012;

however, this deadline was moved back to November 21, 2012, by

agreement of the parties.                  The deadline for motions challenging

experts    was       December     21,        2012.         On    November      21,     Appellant

provided the name of her purported expert witness, Dr. Pogos H.

Voskanian, along with a curriculum vitae, but no written report.

Almost two weeks after the November 21 deadline for Rule 26

disclosures         --   which    had    been          agreed    to   by     Appellant      --    on

December       4,    2012,       Appellant          disclosed         what     she    called      a



                                                   7
“preliminary report” by Dr. Voskanian. 3              The preliminary report,

as its name suggests, was only one page and simply contained a

list of the materials the expert reviewed, and two sentences of

opinion:

     Based on review of the above listed documents, it is
     my opinion to a reasonable degree of medical certainty
     that the care and treatment provided to Mr. Justin
     Lamar Davis fell substantially below an acceptable
     standard of care.     Administration of the hospital
     failed to provide adequate services and supervision;
     and members of the treatment team failed to provide
     adequate monitoring, safety and treatment, amounting
     to deliberate indifference to the patient’s needs and
     premature death of Mr. Justin Davis.

J.A. 99.

            On December 13, 2012, Appellee filed a renewed motion

for summary judgment and a motion to exclude Appellant’s expert

witness.     On December 21, 2012 -- now one month after the expert

disclosure    date   agreed    to   by   Appellant,     and   on   the    court’s

deadline    for   filing    motions    to    exclude   experts     --   Appellant

filed an additional, nine-page expert report by Dr. Voskanian.

             The district court held a motions hearing on February

7, 2013, and granted the motion to exclude Dr. Voskanian the

following    day.     See    J.A.     268-70   (the    “February    8    Order”).




     3
       Appellant submits that Dr. Voskanian actually provided
Appellant’s counsel with the preliminary report on November 26,
but “through inadvertent oversight,” it was not provided to
Appellee’s counsel until December 4. J.A. 67.



                                         8
Appellant then filed a Rule 59 motion to alter or amend the

February 8 Order.

            In the meantime, on December 27, 2012, Appellant filed

a motion for leave to file a second amended complaint.                             She

sought only to add as defendants Dr. Charles Davis -- the actual

director    of   CSH   at    the    time    Davis   was   murdered    --    and    Dr.

Yaratha.

             On April 10, 2013, the district court held a hearing

on the remaining outstanding motions, including the motion to

amend.     The court ruled from the bench, granting the motion for

summary judgment, and denying the motion to amend the complaint

and the Rule 59 motion to alter or amend its order excluding Dr.

Voskanian.       A formal order issued the following day.                   See J.A.

663 (the “April 11 Order”).

            Appellant       filed    a   timely     notice    of   appeal    of    the

February 8 and April 11 Orders.

                                           II.

            We    review      the    district       court’s    exclusion      of    a

plaintiff’s expert witness, its denial of a motion to amend the

complaint, and its ruling on a Rule 59 motion to alter or amend

for abuse of discretion.            See S. States Rack & Fixture, Inc. v.

Sherwin–Williams Co., 318 F.3d 592, 595 (4th Cir. 2003); Laber

v. Harvey, 438 F.3d 404, 428 (4th Cir. 2006); Sloas v. CSX

Transp., Inc., 616 F.3d 380, 388 (4th Cir. 2010).                      As to the

                                            9
motion to amend the complaint, we review the district court’s

analysis     of   the   law    regarding         relation   back   de   novo.      See

Locklear v. Bergman & Beving AB, 457 F.3d 363, 365 (4th Cir.

2006).

             We   review      the    district       court’s    grant    of    summary

judgment de novo.        See Pisano v. Strach, 743 F.3d 927, 932 (4th

Cir. 2014).       Summary judgment is appropriate if a party “shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”                           Fed. R.

Civ. P. 56(a).      A genuine dispute exists

       if the evidence is such that a reasonable jury could
       return a verdict for the nonmoving party.          In
       considering a motion for summary judgment, the court
       is required to view the facts and draw reasonable
       inferences in a light most favorable to the nonmoving
       party.     The plaintiff is entitled to have the
       credibility of all his evidence presumed.   The party
       seeking summary judgment has the initial burden to
       show absence of evidence to support the nonmoving
       party’s case.    The opposing party must demonstrate
       that a triable issue of fact exists; he may not rest
       upon mere allegations or denials.

Shaw   v.   Stroud,     13    F.3d   791,    798    (4th    Cir.   1994)     (internal

citations omitted).

                                        III.

                                            A.

             We first discuss Appellant’s challenge to the district

court’s     exclusion    of    her   expert,       Dr.   Voskanian.        This   issue

implicates both the February 8 Order excluding Dr. Voskanian,


                                            10
and the portion of the April 11 Order denying Appellant’s Rule

59 motion to alter or amend the February 8 Order.

              At the February 7 motions hearing, the district court

ruled as follows:

       The expert will be excluded. You just can’t -- if we
       were to allow him to testify it would just turn
       everything that is in the pretrial order on its head.
       Let me just say that I think the question of
       deliberate indifference, if that is the standard used
       in this case, is one you can argue to the jury based
       on what the administrators knew and when they knew it.
       I don’t think you need an expert on that.

J.A.   558.      At   the   April   10   hearing,   regarding   the   Rule   59

motion, the district court stated,

       Th[e] motion [to alter or amend the February 8 Order]
       will be denied . . . , for two reasons.     First, the
       plaintiff was just way late in naming an expert in
       this case. And I know how hard it is to find experts
       for cases like this.    But we have those deadlines so
       we can move in an orderly fashion.    And the lateness
       with which the expert was identified would not allow
       that to happen. Second, the expert witness’ report is
       pretty much a brief of legal conclusions in the case,
       and I don’t think it is something that offers expert
       opinions on the issues on which an expert might be
       allowed to testify in this case.

Id. at 661.

              The Pre-Trial Order in this case stated, “The parties

will disclose the information required under Rule 26(a)(2) on

the following schedule: Party with the burden of proof on an

issue by October 22, 2012,” which was later moved to November

21, 2012, by consent of the parties.                Wilkins v. Cent. State

Hosp., No. 3:12-cv-00152 (E.D. Va. filed Aug. 21, 2012), ECF No.

                                         11
26 at 2 (pre-trial order); see also id. ECF No. 30 (filed Oct.

25,    2012)    (order    granting    consent    motion   to   amend    pre-trial

order).

               Federal Rule of Civil Procedure 26(a)(2) provides,

       [A] party must disclose to the other parties the
       identity of any witness it may use at trial to present
       evidence under Federal Rule of Evidence 702, 703, or
       705. . . . Unless otherwise stipulated or ordered by
       the court, this disclosure must be accompanied by a
       written report -- prepared and signed by the witness
       -- if the witness is one retained or specially
       employed to provide expert testimony in the case[.]

Fed.    R.      Civ.     P.   26(a)(2)(A),       (B)   (emphasis       supplied).

Furthermore, “[a] party must make these disclosures at the time

and    in    the   sequence   the    court   orders.”      Fed.    R.    Civ.   P.

26(a)(2)(D) (emphases supplied).                Therefore, because Appellant

did not disclose the written report by the agreed-upon deadline,

she necessarily violated the Pre-Trial Order and Rule 26(a)(2).

               In light of this violation, we cannot say the district

court abused its discretion in excluding Dr. Voskanian as an

appropriate sanction.         Rule 37(c)(1) provides,

       If a party fails to provide information or identify a
       witness as required by Rule 26(a) or (e), the party is
       not allowed to use that information or witness to
       supply evidence on a motion, at a hearing, or at a
       trial, unless the failure was substantially justified
       or is harmless.

Fed. R. Civ. P. 37(c)(1).           This court has explained,

       Rule 26 disclosures are often the centerpiece of
       discovery in litigation that uses expert witnesses. A
       party that fails to provide these disclosures unfairly

                                        12
        inhibits its opponent’s ability to properly prepare,
        unnecessarily prolongs litigation, and undermines the
        district court’s management of the case. For this
        reason, “we 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)      (quoting    S.   States    Rack    &   Fixture,    Inc.    v.   Sherwin–

Williams Co., 318 F.3d 592, 595 (4th Cir. 2003)) (alteration

omitted); see also S. States, 318 F.3d at 592 n.2 (“The Rule

37(c)     advisory    committee      notes    emphasize   that     the   ‘automatic

sanction’      of     exclusion      ‘provides     a   strong      inducement   for

disclosure of material that the disclosing party would expect to

use   as    evidence.’”     (quoting     Fed.     R.   Civ.   P.   37(c)   advisory

committee note, 1993 Amendment) (emphasis supplied)). 4

              In Southern States, we elaborated,

      The language of Rule 37(c)(1) provides two exceptions
      to the general rule excluding evidence that a party
      seeks to offer but has failed to properly disclose:
      (1) when the failure to disclose is “substantially
      justified,”  and  (2)   when  the   nondisclosure  is
      “harmless.”

      . . .

      [I]n exercising its broad discretion to determine
      whether a nondisclosure of evidence is substantially
      justified or harmless for purposes of a Rule 37(c)(1)

      4
       See also Campbell v. United States, 470 F. App’x 153, 156
(4th Cir. 2012) (per curiam) (“[T]he Federal Rules impose an
‘automatic sanction’ of exclusion of a party’s expert witness
for failure to adhere to the expert witness requirements set
forth in Rule 26(a).” (quoting S. States, 318 F.3d at 592 n.2)).



                                         13
       exclusion analysis, a district court should be guided
       by the following factors: (1) the surprise to the
       party against whom the evidence would be offered; (2)
       the ability of that party to cure the surprise; (3)
       the extent to which allowing the evidence would
       disrupt the trial; (4) the importance of the evidence;
       and (5) the non-disclosing party’s explanation for its
       failure to disclose the evidence.

318 F.3d at 596-97 (emphasis supplied) (alterations omitted).

The    burden     of   establishing          these   factors    lies   with   the   non-

disclosing party -- in this case, Appellant.                           See id. at 596

(“‘It      is   the    obligation       of    the    party    facing    sanctions    for

belated disclosure to show that its failure to comply with Rule

37(c)(1) was either justified or harmless.’”                      (quoting Wilson v.

Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001))

(alterations omitted).               Appellant argues that the district court

was     required       to    weigh     the    Southern       States    factors    before

excluding Dr. Voskanian, it failed to do so, and even if it had

done so, it would have concluded that the late disclosure was

harmless. 5      We disagree on all counts.

                First of all, the district court was not required to

tick    through       each   of   the   Southern      States    factors.         Southern

States explains that district courts have “broad discretion” to

decide harmlessness and “should” -- not “shall” -- “be guided

by” the five factors.                 S. States, 318 F.3d at 597; see also

       5
        Appellant does not argue the late disclosure                                 was
“substantially justified.” S. States, 318 F.3d at 597.



                                              14
United States v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) (“[T]he

common meaning of ‘should’ suggests or recommends a course of

action, while the ordinary understanding of ‘shall’ describes a

course of action that is mandatory.”); Hoyle v. Freightliner,

LLC, 650 F.3d 321, 330 (4th Cir. 2011) (“[T]he fact that the

district court did not expressly mention the five-factor test we

adopted in Southern States is not indicative of an abuse of

discretion.”); Carr v. Deeds, 453 F.3d 593, 604 (4th Cir. 2006)

(affirming the district court’s exclusion of testimony for Rule

26(a)   violation    when    the   Southern      States   factors    were   not

mentioned).      Thus, the district court’s failure to cite Southern

States and specifically address each of the five factors listed

therein does not amount to an abuse of discretion.

           Second, the district court implicitly addressed some

of the Southern States factors when deciding whether to exclude

Dr. Voskanian as an expert witness.             For example, it invoked the

third factor when it discussed the disruption of the trial date

and Pre-Trial scheduling order.             See J.A. 558 (“[I]f we were to

allow him to testify it would just turn everything that is in

the pretrial order on its head.”); id. at 661 (“[T]he plaintiff

was just way late in naming an expert in this case.                 . . . [W]e

have those deadlines so we can move in an orderly fashion.                  And

the   lateness    with   which   the   expert    was   identified   would   not

allow that to happen.”).         The district court also touched on the

                                       15
fourth factor, when it stated that the expert testimony would

not assist a trier of fact.       See id. at 558 (“Let me just say

that I think the question of deliberate indifference . . . is

one you can argue to the jury based on what the administrators

knew and when they knew it.     I don’t think you need an expert on

that.”); id. at 661 (“[T]he expert witness’ report is pretty

much a brief of legal conclusions in the case, and I don’t think

it is something that offers expert opinions on the issues on

which an expert might be allowed to testify in this case.”).

And, as to factor five, Appellant provided no reason whatsoever

for its failure to disclose the evidence in a timely manner.

See Appellant’s Br. 28-29 (providing arguments on the first four

factors but not the fifth).

           Finally, our own review of the Southern States factors

demonstrates that Appellant’s error was far from harmless.           In

addition   to   the   reasons   provided   by   the   district   court,

Appellant’s initial disclosure failed to provide Appellee with

any concrete explanation of Dr. Voskanian’s potential testimony.

The disclosure was made after the agreed-upon expert disclosure

date, after discovery was closed, after Appellee filed a motion

for summary judgment, and on the very date set by the court for

the filing of motions to exclude experts.       It is hard to accept

that these events would not serve as a surprise to Appellee, or

that Appellee could easily cure such a surprise.        See Hoyle, 650

                                  16
F.3d at 330 (finding no abuse of discretion where district court

excluded expert declaration when the disclosing party notified

his opponent of the declaration “not only after the close of

discovery   but     after   [the   opponent]     had     filed    its    motion   for

summary judgment”).

            For these reasons, we find no abuse of discretion in

the district court’s exclusion of Dr. Voskanian as an expert

witness.

                                         B.

            We next turn to Appellant’s argument that the district

court abused its discretion in denying her motion to amend her

complaint for the second time.

            In the proposed amended complaint, Appellant sought to

add two defendants:           Dr. Davis, director of CSH at the time

Justin Davis was murdered, and Dr. Yaratha, the psychiatrist on

Justin Davis’s treatment team at CSH.                The district court denied

the   motion   because      it   would    be   futile,    i.e.,    there    was    no

evidence of a “pervasive risk of constitutional injury” and no

evidence    that     Drs.     Davis      and   Yaratha     were     “deliberately

indifferent    to    the    knowledge     of   the   risk.”       J.A.    659.     As

explained more fully below, we hold that Appellant’s proposed

third amended complaint would not relate back; therefore, we

affirm the district court on that ground.                 See United States v.

Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (“We

                                         17
may   .   .    .   affirm     the   district        court   on     any   ground     in   the

record[.]”).

                                              1.

              Appellant       filed     the        second   motion       to   amend      and

proposed      amended    complaint       on    December      27,    2012,     ten   months

after the statute of limitations had expired.                              See Lewis v.

Richmond City Police Dep’t, 947 F.2d 733, 735 (4th Cir. 1991)

(“There is no federal statute of limitations for § 1983 claims,

so the state limitations period which governs personal injury

actions is applied.            . . .     Virginia has a two-year statute of

limitations for personal injury claims.” (citing Va. Code Ann.

§ 8.01–243(A))); A Soc’y Without A Name v. Virginia, 655 F.3d

342, 348 (4th Cir. 2011) (applying Virginia law) (“With regard

to the § 1983 . . . claim[], the statute-of-limitations period

. . . is two years.”).              Therefore, “unless the amended complaint

. . . relates back to the date of the original filing, it will

be    barred       by   the    statute    of        limitations      and      subject     to

dismissal.”        Locklear v. Bergman & Beving AB, 457 F.3d 363, 365

(4th Cir. 2006).

              In    determining       whether       an   amended    complaint       relates

back, we look to Federal Rule of Civil Procedure 15(c)(1), which

provides,

      An amendment to a pleading relates back to the date of
      the original pleading when,


                                              18
       . . .

       (B) the amendment asserts a claim or defense that
       arose out of the conduct, transaction, or occurrence
       set out -- or attempted to be set out -- in the
       original pleading; or

       (C) the amendment changes the party or the naming of
       the party against whom a claim is asserted, if Rule
       15(c)(1)(B) is satisfied and if, within the period
       provided by Rule 4(m) for serving the summons and
       complaint, 6 the party to be brought in by amendment:

                 (i) received such notice of the action that it
                 will not be prejudiced in defending on the
                 merits; and

                 (ii) 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); see also Robinson v. Clipse, 602 F.3d

605,       608   (4th    Cir.   2010)   (explaining    that    when   a   proposed

amendment changes the party against whom a claim is asserted,

the amending party must satisfy the requirements set forth in

Rule 15(c)(1)(C)(i) and (ii)).                 This rule “presumes that the

amending         party   can    make    the    amendment,     although    it   does

constrain substantially the type of amendment that may relate

back.”       Goodman v. Praxair, Inc., 494 F.3d 458, 469 (4th Cir.

2007) (en banc).




       6
       Rule 4(m) requires that a defendant be served within 120
days after the complaint is filed, absent good cause. See Fed.
R. Civ. P. 4(m).



                                          19
           When an amendment seeks to add a defendant, the focus

turns to the notice to that individual or entity.           Specifically,

as to Rule 15(c)(1)(C)(ii), the Supreme Court has clarified,

“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.”

Krupski v. Costa Crociere, 560 U.S. 538, 548 (2010).             We have

explained,

     Rule [15]’s description of when such an amendment
     relates back to the original pleading focuses on the
     notice to the new party and the effect on the new
     party that the amendment will have.       These core
     requirements   preserve  for   the   new  party   the
     protections of a statute of limitations.  They assure
     that the new party had adequate notice within the
     limitations period and was not prejudiced by being
     added to the litigation.

Goodman,     494   F.3d   at   470   (citation   omitted)   (emphases   in

original); see also Norton v. Int’l Harvesters Co., 627 F.2d 18,

20 (7th Cir. 1980)        (“[P]rejudice within the meaning of [Rule

15] is prima facially established where a party named as an

additional defendant in the amended complaint is deprived of the

defense of the statute of limitations.”); Hageman v. Signal L.

P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973) (“[A]n amendment

adding another party is a new cause of action which cannot be

added after the time limitation has expired.”); cf. Goodman, 494

F.3d at 468 (“Rule 15(c) must be understood to freely permit

                                     20
amendment of pleadings and their relation-back so long as the

policies       of   statutes        of     limitations        have    been    effectively

served.”).

                                                2.

               The proposed amended complaint in this case clearly

meets the first requirement of Rule 15(c)(1)(C)(3) -- that Rule

15(c)(1)(B) is satisfied, that is, the claims in the amended

complaint “arose out of the conduct, transaction, or occurrence”

in the original complaint -- because it seeks to add defendants

rather    than      to   alter      the    underlying       causes    of    action.       See

Locklear, 457 F.3d at 365-66.                    Therefore, we focus on whether,

within the period of time provided by Rule 4(m), Drs. Davis and

Yaratha “received such notice of the action that [they] w[ould]

not be prejudiced in defending on the merits,” and “knew or

should    have      known     that       the    action      would    have    been    brought

against [them], but for a mistake concerning the proper party’s

identity.”       Fed. R. Civ. P. 15(c)(1)(C)(i), (ii).

               Appellant       argues      that      Drs.    Davis    and    Yaratha      had

notice    of    the      complaint        and   thus,    “there      was    absolutely    no

prejudice       that     could      be    identified.”          Appellant’s         Br.   32.

However,    the     record      evidence        shows    that   Dr.    Yaratha      did   not

receive    notice        of   the    lawsuit      against     Appellee      until    he   was

asked to attend a deposition in the matter on November 8, 2012

-- eight months after the initial complaint was filed and the

                                                21
statute of limitations had expired, and four months after the

time period set forth in Rule 4(m).                         See J.A. 260 (Yaratha

Declaration) (“I first became aware of the lawsuit . . . on

November 8, 2012, when I was asked to attend a deposition in

this matter.”).        Dr. Davis was not made aware until December 28,

2012, when he received an email from Appellee’s office about the

case -- ten months after the initial complaint was filed and the

statute of limitations had expired, and six months after the

time period set forth in Rule 4(m).                         See id. at 259 (Davis

Declaration), 467-68 (Davis Deposition).

              Appellant       offers        no     evidence       to     the       contrary.

Instead,      she   merely       contends        that    Drs.     Davis      and     Yaratha

“clearly had notice of the complaint,” based on the allegations

that   they    were    represented        by      the   same    office       as    Appellee.

Appellant’s Br. 32.              There is zero support in the record for

this contention.           Rather, it is belied by the record.                     See J.A.

444,   489     (indicating         that   Dr.      Davis    and    Dr.    Yaratha       were

represented at their depositions by the law firm Rawls McNelis &

Mitchell,     not     by   the     Office    of    the     Attorney      General,      which

represented Appellee).             Appellant further asserts that Dr. Davis

had notice of the lawsuit because he “still has an office and

practices     medicine       [at     CSH].”         Appellant’s        Br.     35.      This

assertion is also belied by the record.                         See J.A. 449-50 (Dr.



                                             22
Davis’s    deposition,            stating      that    he      retired     from   CSH     in    May

2010).

            Appellant             also    submits         that      knowledge      should       be

imputed    to        Drs.    Davis       and    Yaratha         because     they     have       “‘a

sufficient identity of interest with the original defendant.’”

Appellant’s Br. 36 (quoting Goodman, 494 F.3d at 474).                                   Goodman

states,    “we       can     conclude       that      when      a   plaintiff       alleges      a

comprehensible claim against one of a group of closely related

and   functioning           business     entities         or    corporations,       the     other

entities    in       that    group,      barring      a     contrary      showing,       will   be

charged with knowledge under Rule 15[] of the entity properly

answerable to the claim.”                Goodman, 494 F.3d at 475.

            But in Goodman, the business entities in question were

a parent and subsidiary corporation, which were represented by

the same lawyers.             See Goodman, 494 F.3d at 475.                       Indeed, the

subsidiary corporation in Goodman “concede[d] it had notice but

thought    .     .     .    that     Goodman         intended       to    sue     [the    parent

corporation].”              Id.     This       case    is      markedly     different.          As

explained above, the evidence demonstrates that Drs. Yaratha and

Davis did not receive notice of the lawsuit against Appellee

until November 8, 2012, and December 28, 2012, respectively, and

they had different attorneys than Appellee.                              Moreover, Appellant

has provided no evidence that Dr. Davis even kept in touch with

the employees at CSH after his retirement in May 2010 such that

                                                23
he   could    still   even    be   considered      “closely    related”      to    CSH.

Goodman, 494 F.3d at 475.              There is likewise no evidence that

Dr. Yaratha worked so closely with Appellee as to be imputed

with knowledge of the lawsuit against her.

             Therefore,       in   reviewing      the   evidence      presented     at

summary judgment, we must conclude that Drs. Davis and Yaratha

“received [no] notice of the action” against Appellee within the

120-day period set forth in Rule 4(m) and were thus “prejudiced

in   defending    [the    claim]    on    the    merits.”      Fed.    R.    Civ.    P.

15(c)(1)(C)(i).       Compare Krupski, 560 U.S. at 554 (holding that

amended complaint should relate back because the district court

found   that    the   added    party     had    “constructive    notice”      of    the

initial complaint within the Rule 4(m) period, and the added

party   did     not   challenge        that     finding),     with    J.A.    657-58

(district court finding that “neither [Dr.] Yaratha or [Dr.]

Davis had notice of the suit within 120 days of its filing”).

Appellant has likewise failed to produce any evidence that the

potential defendants “knew or should have known” that the action

would have been brought against them, but for an error in naming

Appellee.      Fed. R. Civ. P. 15(c)(1)(C)(ii); Krupski, 560 U.S. at

548.    Thus, the proposed amendment to the complaint would not

relate back, and the district court did not abuse its discretion

in denying the motion to amend.



                                          24
                                    C.

            We now turn to whether the district court erred in

granting summary judgment in favor of Appellee on the 42 U.S.C.

§ 1983 and gross negligence claims.           Having concluded, supra,

that Drs. Davis and Yaratha cannot be added to this action, and

that Dr. Voskanian was properly excluded as an expert, we need

only   address   the   non-expert   record   evidence   with   respect   to

Appellee.

                                    1.

                              § 1983 Claim

            In order to succeed on a § 1983 claim for supervisory

liability, a plaintiff must show:

       (1) that the supervisor had actual or constructive
       knowledge that h[er] 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).              As to the

first element, “[e]stablishing a ‘pervasive’ and ‘unreasonable’

risk of harm requires evidence that the conduct is widespread,

or at least has been used on several different occasions and


                                    25
that     the      conduct    engaged           in        by    the          subordinate      poses       an

unreasonable risk of harm of constitutional injury.”                                       Id.     As to

the    second       element,       a    plaintiff              “may          establish      deliberate

indifference by demonstrating a supervisor’s continued inaction

in the face of documented widespread abuses.”                                           Id. (internal

quotation marks omitted).                  Finally, as to the third element,

“proof      of    causation       may     be    direct             .    .    .    where    the    policy

commands the injury of which the plaintiff complains . . . or

may be supplied by the tort principle that holds a person liable

for the natural consequences of his actions.”                                           Id. (internal

quotation marks and alterations omitted).

                 Appellant fails to provide sufficient evidence on any

of these three elements with regard to Appellee.                                          First, there

is     no   evidence        that       Appellee           had          actual      or     constructive

knowledge that Harris and Thompson, the charge nurse and mental

health      technician,          were     engaged             in       conduct      that     posed      “a

pervasive        and   unreasonable        risk”              of   constitutional           injury       to

Davis.      To the contrary, Appellee was not even working on the

night in question, and there is no evidence the staff members

had behaved in such a manner in the past such that their conduct

was “widespread,” or that they had neglected their duties on

“several different occasions.”                      Shaw, 13 F.3d at 799.

                 Nonetheless,      Appellant              argues        that      Appellee        had    an

overarching         duty    to     keep    the           patients            at   CSH     safe.         See

                                                    26
Appellant’s Br. 12 (citing J.A. 160, 161-62) (Appellee agreed

that she “was [in addition to Dr. Davis] responsible for running

the hospital” and that the hospital administration had a non-

delegable      obligation       “to     provide    a     safe    environment      for    the

patients[.]”).          While this may be true, it does not relieve

Appellant of the burden of showing a pervasive risk of harm that

Appellee knew about, actually or constructively -- a burden that

Appellant has not met.

              In addition, Appellant assumes that Appellee saw all

of    the    AOD    reports     regarding    the       tension     between    Davis      and

Phillips.          But as Appellee points out, she only worked Monday

through Thursday during the week that Davis was murdered.                                Her

time sheet shows that she clocked out at 6:41 p.m. on Thursday,

February 25, 2010, and did not work Friday, Saturday, or Sunday

of    that    weekend.         Therefore,    the       record    evidence    shows      that

Appellee      would      not     have     seen     the     AOD    report     about       the

occurrences of February 25, which described the altercation in

the    gymnasium       between     Davis     and       Phillips,        because   it    was

generated the following day, February 26.                          In fact, the only

knowledge of harm Appellee had about Davis and Phillips that

week    was    the    report     from    February       24,     which    reflected      that

Phillips felt threatened by Davis, and that Phillips had stated

that he (Phillips) could harm himself or someone else.



                                            27
               Appellant has also failed to show sufficient evidence

that     Appellee     was     deliberately          indifferent       to      or    tacitly

authorized widespread abuses of patient supervision.                                In this

regard,       Appellant      points    to    the     deposition       of      the   nursing

coordinator and supervisor, Bernadette Spruill, who stated that

she    was    not   aware    that     Phillips      threatened      to     hurt     or    kill

Davis,       even   though    such     information        was   listed        in    the   AOD

reports from that week.              As a result, Spruill did not “take any

actions in terms of staffing the unit to address any concerns

regarding Mr. Davis’s safety.”                    J.A. 416.        While this lack of

communication        is     gravely    unfortunate,         Appellant         proffers     no

evidence to show either that this was a widespread problem or

that    Appellee     knew     about    it    but    did     nothing      to    remedy      the

situation.

               In   fact,    there     was    a    system     in    place      to   address

threats like those made to Davis.                   Phillips was placed on VOS,

EOS, and SOS, and was supposed to be monitored every 15 minutes,

according to hospital policy.                And, the fact that this was not

done by staff members on a Friday night, which was Appellee’s

day off, does not impute deliberate indifference to her.

               Appellant relies heavily on Slaken v. Porter, 737 F.2d

368 (4th Cir. 1984).                But even that case recognized that a

supervisor cannot “reasonably be expected to guard against the

deliberate criminal acts of his properly trained employees when

                                             28
he has no basis upon which to anticipate the misconduct.”                                Id.

at 373.      Here, there is no evidence whatsoever that Appellee

could have known that the nursing staff would watch television

rather than check on Davis and Phillips.

            In addition, Dr. Yaratha had considered the idea of

moving    Davis    to    a    different     ward,       but    after        deliberation,

decided    against      it.      See     J.A.    377     (Dr.       Yaratha       “met   and

discussed     informally       with    [other     doctors]          about    moving      Mr.

Davis.     It was decided that the best place to monitor and manage

[him] was on ward 8.           Mr. Davis was very violent and aggressive

before coming to ward 8 and during his first few weeks on ward

8.   He would not do well with changing wards.”).                           Thus, to the

extent the decisions of Dr. Yaratha and others can be imputed to

Appellee,     those      decisions       clearly        illustrate          concern      and

discussion, rather than deliberate indifference.

            Finally,          Appellee’s        job     duties        were         patently

administrative in nature.             See J.A. 146-48 (Appellee’s position

description        for         “Assistant         Director            for          Clinical

Administration,”         which     included,          inter     alia,        “provid[ing]

direction     to   and       oversight     of    the        operations       of    [CSH]”;

“assess[ing], develop[ing], monitor[ing], and evaluat[ing] the

clinical     and     forensic      operations          of     the     hospital”;         and

“[p]rovid[ing]       administrative        and    operational          supervision        to

medical/clinical department and forensic services directors”).

                                           29
Nowhere is there a requirement that she have supervision over

the security or monitoring of the patients in Ward 39-8.

             For these reasons, Appellant has failed to meet her

burden on summary judgment, and the district court did not err

in granting Appellee’s motion on the § 1983 claim.

                                  2.

                          Gross Negligence

          Appellant also brought state law claims for common law

grossly negligent supervision, and gross negligence under the

Virginia Wrongful Death Act, Va. Code Ann. § 8.01-50.        “Gross

negligence” is

     a degree of negligence showing indifference to another
     and an utter disregard of prudence that amounts to a
     complete neglect of the safety of such other person.
     This requires a degree of negligence that would shock
     fair-minded persons, although demonstrating something
     less than willful recklessness.

Cowan v. Hospice Support Care, Inc., 603 S.E.2d 916, 918 (Va.

2004).   Gross negligence is more serious than simple negligence,

which “involves the failure to use the degree of care that an

ordinarily     prudent   person   would   exercise   under   similar

circumstances to avoid injury to another.”    Id.

     Proof of gross negligence depends upon the facts and
     circumstances of the particular case.    If fair minded
     people can differ respecting the conclusion to be
     drawn from the evidence, a jury question is presented.
     On the other hand, if the evidence is such that fair
     minded people cannot differ, the question whether
     gross negligence has been established is one of law.


                                  30
Meagher v. Johnson, 389 S.E.2d 310, 311 (Va. 1990) (internal

quotation marks and alterations omitted).

                 Based on the dearth of evidence provided by Appellant,

as    explained        above,       Appellant    falls   far    short    of    creating   a

triable issue as to whether Appellee’s actions, or alleged lack

thereof,         “would       shock    fair-minded       persons.”            Indeed,   the

Virginia cases allowing gross negligence claims to proceed to

trial are far more egregious.                     See, e.g., Koffman v. Garnett,

574 S.E.2d 258, 260 (Va. 2003) (allowing gross negligence issue

to    go    to    a    jury    where    260-pound     football    coach       aggressively

tackled a 13-year-old, 144-pound, inexperienced football player,

breaking his left arm);                Nichols v. Brizendine, 169 S.E.2d 457,

460 (Va. 1969) (same, where driver of an automobile deliberately

increased speed on a straight portion of a narrow road, which

had    an    upcoming         curve    that   driver     knew   about,    and     the   car

skidded      46       feet    and    collided    head-on   with    a    tree,     severely

injuring the passengers).                Thus, as a matter of law, Appellee is

entitled to summary judgment on this claim.

                                                IV.

                 For    the     foregoing       reasons,    the    judgment       of    the

district court is

                                                                                 AFFIRMED.




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