UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ESTATE OF ARTHUR KNIGHT, III, by
and through Arthur Knight, Jr.,
Administrator,
Plaintiff-Appellee,
                                                               No. 98-1778
v.

GEORGE STEVEN HOGGARD,
individually,
Defendant-Appellant.

ESTATE OF ARTHUR KNIGHT, III, by
and through Arthur Knight, Jr.,
Administrator,
Plaintiff-Appellant,
                                                               No. 98-1847
v.

GEORGE STEVEN HOGGARD,
individually,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Tommy E. Miller, Magistrate Judge.
(CA-97-474-2)

Argued: March 1, 1999

Decided: June 15, 1999

Before WILKINS and TRAXLER, Circuit Judges, and
FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Alan Brody Rashkind, FURNISS, DAVIS, RASHKIND
& SAUNDERS, P.C., Norfolk, Virginia, for Appellant. Michael Rux-
ton Strong, THE STRONG LAW FIRM, Chesapeake, Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In the early morning hours of March 3, 1990, Officer George Ste-
ven Hoggard ("Hoggard") and two other officers observed Arthur
Knight, III ("Knight") and Lionel Avant ("Avant") breaking into a
parked car. A short time later, Hoggard pursued Knight on foot across
the parking lot in an attempt to apprehend him. The parties dispute
whether Hoggard fired his weapon at Knight as he fled; however, all
agree that Knight soon outran Hoggard, escaping over an embank-
ment and across a nearby interstate highway (I-64). This was the last
time, as far as the parties know, that Knight was seen alive. Hoggard
stopped his pursuit short of I-64 and returned to his vehicle. Knight's
body was discovered thirteen days later in a drainage canal on the
other side of I-64. He had drowned, but no one knows how or when.
Knight had not been shot.

More than seven years later, Knight's father, as administrator for
his son's estate ("the Estate"), brought this action against Hoggard,
maintaining that Hoggard used excessive force in violation of
Knight's civil rights, see 42 U.S.C.A. § 1983 (West Supp. 1998), and

                    2
asserting state claims for assault, wrongful death, and gross negligence.1
Hoggard filed a motion for summary judgment based on the statute
of limitations and the lack of proximate cause, but the district court
denied the motion. At trial, Hoggard again sought dismissal on these
grounds, but to no avail. However, the district court dismissed the
§ 1983 claim as a matter of law. See Fed. R. Civ. P. 50(a). Likewise,
the district court dismissed the Estate's claims for punitive damages.
The jury then found against Hoggard on the state claims.

On appeal, Hoggard contends that, among other errors, the district
court erred in concluding that this action was not barred in its entirety
by the applicable statute of limitations and that there was sufficient
evidence to establish that Hoggard's actions proximately caused
Knight's subsequent drowning death. The Estate cross appeals, con-
tending in part that the district court erred in dismissing the § 1983
claim and the claim for punitive damages as a matter of law. Because
we agree with Hoggard's contentions, we need not analyze the issues
raised by the Estate in its cross appeal. Accordingly, we reverse and
enter judgment in favor of Hoggard.

I. FACTUAL BACKGROUND

The facts, viewed in a light most favorable to Knight, are these.
Hoggard was assigned with his partner, William B. Everett, to the
Narcotics Squad of the Norfolk Police Department. At some point
after midnight on March 3, 1990, Hoggard and Everett, both dressed
in plain clothes, met in an unmarked police van with a third officer,
Derek Young ("Young"), who was making undercover drug pur-
chases. While Hoggard and Everett were meeting with Young, they
noticed Knight and Avant studying cars parked in the Met Park park-
ing lot where the police van was parked. Eventually, Knight broke
into one of the cars while Avant served as a lookout. Upon seeing the
break-in, Hoggard drove the van toward Knight and Avant, stopping
approximately 25 to 50 yards away from them. With Young still
inside, Hoggard and Everett got out of the van, allegedly with their
handguns drawn and without identifying themselves as police offi-
cers.
_________________________________________________________________
1 The Estate's claims for assault and wrongful death were combined
into one count in the complaint.

                     3
Knight and Avant fled in different directions. Everett ran after
Avant while Hoggard chased Knight. The Estate contends that Hog-
gard discharged his sidearm several times during his pursuit of
Knight, emptying his clip of ammunition. Nevertheless, Hoggard nei-
ther shot nor stopped Knight, who ran up a wooded embankment
toward I-64. Hoggard then gave up the chase. As Knight ran across
I-64, a Virginia highway patrolman, who happened to be in the area,
spotted Knight and, using a loudspeaker, ordered him to stop. Knight
kept running. There was no evidence that Knight was ever seen alive
again. Hoggard returned to the van where he learned that Everett had
been unable to apprehend Avant.

After eluding the police, Avant returned home. Knight, however,
failed to return home, prompting his father to contact Avant the fol-
lowing day. Avant reported that he had been with Knight the previous
evening and that they had been chased and shot at by two white
males. As he discussed the incident with Knight's father, Avant osten-
sibly did not know that the two unidentified males were police offi-
cers.

Fearing for his son's safety, Knight's father, accompanied by
Avant, went to the Norfolk Police Department to report the incident.
Avant admitted to an officer that he and Knight had been in the pro-
cess of breaking into a car when they were approached, pursued, and
fired upon by two white males. Officers T.D. Melton ("Melton") and
R.J. Graupmann ("Graupmann") subsequently took Avant and
Knight's father to Met Park, where the incident had occurred, to
search the area. Hoggard learned about Melton's search and drove to
Met Park also. Hoggard, who was still dressed in plain clothes, pri-
vately told Melton that he and Everett were, in fact, the men who
chased Avant and Knight but that they had not fired their weapons
during the pursuit. Melton then reported to Knight's father that the
unidentified males were, in fact, police officers and that they had not
fired any shots. Melton suggested that the shots Avant claimed to
have heard had likely come from a nearby police firing range. Melton,
however, did not specifically identify Hoggard and Everett as the offi-
cers involved in the chase, and Knight's father did not inquire as to
the identity of the officers. Melton subsequently opened a missing
person file on Knight.

                    4
On March 16, 1990, two weeks after Knight's father and Avant
met with Melton and Graupmann, Knight's body was discovered
floating in a drainage canal on the other side of I-64 from Met Park
where Hoggard had chased Knight. The drainage canal was separated
from I-64 by another wooded embankment, a wire fence, and a level
area approximately 25 to 30 feet wide. An autopsy revealed that the
cause of death was asphyxia by drowning; no bullet wounds were
found.

Nearly five years later, Young, who had remained inside the
unmarked van during the chase, contacted Knight's father and told
him that Hoggard was the officer who had chased his son. Moreover,
Young told Knight's father that Hoggard had indeed fired his weapon
at Knight and had actually returned to the van with an empty clip.
Hoggard allegedly admonished Young to keep the incident to himself,
which Young did until the fall of 1995.2 Young testified that he did
not learn of Knight's death until that time. Knight's father considered
Young's information to be verification of Avant's claim that the offi-
cers had shot at them during the chase.

Bolstered by this information, Knight's father, as administrator of
the Estate, filed this action against Hoggard, some seven years follow-
ing Knight's death, asserting a § 1983 claim for excessive force. He
also filed state claims for assault, wrongful death, and gross negli-
gence. Hoggard moved on several occasions to dismiss the action as
barred by the applicable statute of limitations. The district court
rejected his argument each time, concluding that Hoggard had con-
cealed facts from the Estate necessary to establish a cause of action
and, therefore, the two-year statute of limitations had been tolled.
Additionally, Hoggard sought summary judgment on the basis that
there was no evidence establishing a causative link between Hog-
gard's conduct and Knight's death, an argument that the district court
likewise rejected. At trial, Hoggard sought dismissal of the Estate's
claims in part on these same grounds pursuant to Rule 50 of the Fed-
eral Rules of Civil Procedure. The district court again refused to dis-
miss the action on these grounds.
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2 Hoggard contends that he and Young had experienced work-related
problems shortly before Young went to Knight's father.

                    5
II. THE STATUTE OF LIMITATIONS

Hoggard first challenges the district court's ruling regarding the
applicability of the statute of limitations. Our review of the district
court's denial of a Rule 50 motion is de novo. See Sales v. Grant, 158
F.3d 768, 775 (4th Cir. 1998). In denying Hoggard's motion for sum-
mary judgment, the district court concluded -- and the parties do not
dispute -- that a two-year limitations period applied to each of the
Estate's claims. With respect to the § 1983 claim, the statute of limita-
tions is imported from state law. See Wilson v. Garcia, 471 U.S. 261,
266-69 (1985); Nasim v. Warden, Md. House of Correction, 64 F.3d
951, 955 (4th Cir. 1995) (en banc). Here, Virginia's two-year personal
injury limitations period applies to the Estate's§ 1983 claim. See
Lewis v. Richmond City Police Dep't, 947 F.2d 733, 735 (4th Cir.
1991); see Va. Code Ann. § 8.01-243 (Michie 1993). Likewise, under
Virginia law, a two-year limitations period applies to wrongful death
claims, see Va. Code Ann. § 8.01-244 (Michie 1993), claims for
assault, and claims sounding in negligence, see Va. Code Ann. § 8.01-
243. The parties disagree, however, whether this two-year limitations
period operates to bar this action.

A. Accrual of the Claims

1. The § 1983 Claim

Although the applicable limitations period for a federal civil rights
claim is determined by reference to state law, "the question of when
a cause of action accrues under 42 U.S.C.§ 1983 remains one of fed-
eral law." Nasim, 64 F.3d at 955 (emphasis in original). "[F]or pur-
poses of a § 1983 claim, a cause of action accrues either when the
plaintiff has knowledge of his claim or when he is put on notice --
e.g., by the knowledge of the fact of injury and who caused it -- to
make reasonable inquiry and that inquiry would reveal the existence
of a colorable claim." Id. Thus, the applicable statute of limitations
begins running "when the plaintiff possesses sufficient facts about the
harm done to him that reasonable inquiry will reveal his cause of
action." Id.; see also Brooks v. City of Winston-Salem, 85 F.3d 178,
181 (4th Cir. 1996).

The Estate suggests that Knight's father did not possess sufficient
knowledge to bring a claim until Young revealed Hoggard's identity

                    6
to him, confirming that Avant had truthfully asserted that Hoggard
and Everett discharged their weapons during the pursuit. In view of
the record, we find these contentions unpersuasive.

The Estate has had evidence since 1990 that a police officer in
plain clothes without identifying himself fired shots at Knight as he
chased Knight near Met Park. There was obviously, also, knowledge
of Knight's death. This evidence was without question enough to put
the Estate on notice of both the fact of injury and, under the Estate's
theory of the case, knowledge as to who caused it. The statute of limi-
tations began running right then. The "new" evidence obtained by the
Estate which precipitated the lawsuit seven years later was the identi-
fication of Hoggard as the particular officer who had allegedly fired
the shots, along with the corresponding testimony of Young. This evi-
dence might have made the Estate's case stronger, but given the infor-
mation available to the Estate from the beginning, its discovery did
not affect the running of the statute of limitations. Since the initial
incident, the Estate had known it was a Norfolk police officer who
had chased Knight. Knowledge of the name of the officer was not
determinative of the accrual of the action, particularly in light of the
fact that it was easily attainable. Young's testimony was only corrob-
orative of Avant's testimony and, consequently, was not necessary to
establish an element of the claim since Avant's testimony had been
available to the Estate from the beginning.

Perhaps the Estate did not believe its evidence was strong enough
to bring an action in 1990, but that with the addition of Young's testi-
mony in 1997 it was. Regardless, the statute of limitations begins to
run when a plaintiff has knowledge of his claim, not when the plain-
tiff obtains evidence that is strong enough to convince him that he can
prevail. We conclude that, as of March 16, 1990, the Estate had suffi-
cient knowledge that a reasonable inquiry would have revealed its
potential cause of action. Therefore, this claim accrued no later than
that date, and the filing of the § 1983 claim was well past the two-
year statute of limitations.

2. The State Claims

In Virginia, a "right of action [is] deemed to accrue and the pre-
scribed limitation period shall begin to run from the date the injury

                      7
is sustained in the case of injury to the person." Va. Code Ann.
§ 8.01-230 (Michie Supp. 1998). Virginia does not follow the discov-
ery rule under which the limitations period does not begin to run until
an injury has been discovered or should have been discovered. See
Nunnally v. Artis, 492 S.E.2d 126, 129 (Va. 1997). Therefore, the
two-year statute of limitations began running at the time of the
Estate's injury, i.e., at the time of Knight's death. Since Knight died
no later than March 16, 1990, the statute of limitations for these
claims expired long before this action was filed.

B. Equitable Estoppel

The Estate contends that its action was timely because the limita-
tions period was tolled by the doctrine of equitable estoppel. Under
Virginia law, a defendant is equitably estopped from raising a statute
of limitations defense when the defendant has obstructed the plaintiff
from asserting his claim by fraudulently concealing the potential
cause of action. See Boykins Narrow Fabrics Corp. v. Weldon Roof-
ing & Sheet Metal, Inc., 266 S.E.2d 887, 890 (Va. 1980). A party
seeking to invoke the doctrine must prove the following elements by
clear, precise, and unequivocal evidence:

          (1) A material fact was falsely represented or concealed; (2)
          The representation or concealment was made with knowl-
          edge of the fact; (3) The party to whom the representation
          was made was ignorant of the truth of the matter; (4) The
          representation was made with the intention that the other
          party should act upon it; (5) The other party was induced to
          act upon it; and (6) The party claiming estoppel was misled
          to his injury.

Id.

We cannot agree with the Estate that equitable estoppel applies
here. First, the Estate was not ignorant of the facts to support its
claim. Knight's father possessed knowledge of all of the facts needed
to investigate and bring a claim against Hoggard. As explained previ-
ously, he was aware of Avant's allegations that Hoggard fired shots
during the chase. Second, Hoggard made no attempt to conceal his
identity; he revealed to Melton that he and Everett had been involved

                    8
in the chase, and Melton reported to Knight's father that the unidenti-
fied men had been police officers. The fact that Hoggard denied firing
any shots is not the type of "misrepresentation" upon which the prin-
ciple of equitable estoppel turns. Indeed, Hoggard testified under oath
at trial that he fired no shots and he continues to maintain that to this
day. The dispute, then, over whether shots were fired is not unlike the
type of dispute that underlies every trial -- one side contends that
events happened in a certain way and the other side asserts a contrary
version. Equitable estoppel comes into play when a party conceals a
fact that prevents a potential plaintiff from having evidence necessary
to prove a claim, or an element thereof. Here, the Estate already had
in its possession evidence that Hoggard had fired shots. Young's testi-
mony merely corroborated what the Estate already knew, and conse-
quently the Estate could not use estoppel as a basis for avoiding its
responsibility to bring a timely action.

In sum, Hoggard simply did not deprive the Estate of"`its power
to assert [its] cause of action in due season,'" id. at 889 (quoting
Brunswick Corp. v. Perkinson, 151 S.E. 138, 140 (Va. 1930)), or "ob-
struct[ ] the prosecution of [its] suit," id. at 890, which is what the
doctrine of equitable estoppel is designed to prevent. See also Va.
Code Ann. § 8.01-229D (Michie Supp. 1998) (tolling the limitations
period when the defendant has used "direct or indirect means to
obstruct the filing of an action"). We are satisfied that the statute of
limitations was not tolled by the doctrine of equitable estoppel.3
_________________________________________________________________

3 We reject the Estate's contention that Hoggard somehow waived the
statute of limitations defense. Indeed, he seems to have raised it at every
possible procedural juncture. Nevertheless, the Estate argues -- in direct
contradiction to the position it took before the district court -- that the
issue of whether Hoggard is estopped to plead the statute of limitations
is a jury issue and, therefore, Hoggard waived this issue when he failed
to offer a jury instruction on estoppel. We are satisfied that the resolution
of the statute of limitations issue was one for the court -- just as the
Estate suggested below. As we have explained, there is simply no genu-
ine issue of material fact to be resolved with respect to the application
of the equitable estoppel doctrine.

                     9
III. PROXIMATE CAUSE

Hoggard also challenges the district court's denial of his motion for
judgment as a matter of law based on the dearth of evidence establish-
ing proximate cause.4 The Supreme Court of Virginia has explained
that "[t]he proximate cause of an event is that act or omission which,
in natural and continuous sequence, unbroken by an efficient inter-
vening cause, produces the event, and without which that event would
not have occurred." Coleman v. Blakenship Oil Corp., 267 S.E.2d
143, 147 (Va. 1980) (quoting Beale v. Jones, 171 S.E.2d 851, 853
(1970)). Although evidence supporting proximate cause need not be
scientifically exact, it "must be sufficient to remove the case out of
the realm of speculation and conjecture and into the realm of legiti-
mate inference before submitting it to a jury for its determination."
Blacka v. James, 139 S.E.2d 47, 50 (Va. 1964)."[M]ere proof of an
accident and negligence does not establish a cause of action." Id.
Hoggard argues the evidence was insufficient precisely because of the
lack of evidence in the interim: no one knows when or how Knight
drowned. We agree with Hoggard. Although the autopsy revealed that
Knight had been submerged for some time when his body was discov-
ered two weeks after the chase, it requires sheer speculation to con-
clude that Knight's drowning was the natural consequence of
anything Hoggard did. There was simply no evidence of it. Nor was
there any evidence that would allow the jury to do any more than
guess at how the drowning occurred. Indeed, a number of scenarios
_________________________________________________________________
4 Hoggard represents to the court in his opening brief that he made an
appropriate motion to the district court under Rule 50 for judgment as a
matter of law as to proximate cause. Because of the paucity of materials
contained in the joint appendix, however, we are unable to ascertain
whether this is so -- it is clear only that Hoggard argued there was insuf-
ficient evidence of proximate cause in his summary judgment motion,
which was denied. See Chesapeake Paper Prod. Co. v. Stone & Webster
Eng'g Corp., 51 F.3d 1229, 1237 (4th Cir. 1995) (explaining that the
denial of a summary judgment motion is not reviewable once there has
been a full trial on the issue and that a party seeking review of such an
issue must move for judgment as a matter of law under Rule 50). Never-
theless, the Estate does not challenge Hoggard's representation that the
issue of proximate cause was properly preserved for review. On that
basis -- and because our analysis of proximate cause does not affect the
disposition in the case -- we will consider Hoggard's contention on
appeal that there was insufficient evidence of proximate cause to allow
this action to go to the jury.

                  10
seem equally likely. Perhaps Knight successfully avoided Hoggard
and waited for his pursuers to depart, only to drown some time later
as a result of tragic carelessness. We are only guessing, however, like
the jury was required to do. The only certain evidence concerning
Knight's death is that he did not die from a gunshot wound inflicted
by Hoggard or anyone else. Rather, Knight drowned at an unknown
time, in an unknown manner, and for an unknown reason. See id. at
50-51 (concluding that plaintiff lacked proximate cause because there
was no evidence of how boy drowned, requiring the jury to specu-
late). Because the evidence was simply insufficient to establish proxi-
mate cause, we conclude that the district court should have awarded
judgment as a matter of law to Hoggard on this basis as well.

IV. SUMMARY

The Estate raises several issues in its cross appeal. In light of our
conclusion that this action was barred by the statute of limitations,
and that the Estate lacked sufficient evidence of proximate cause as
to any of its claims, we need not reach the issues raised by the Estate.
Accordingly, we reverse the district court's denial of Hoggard's
motion for judgment as a matter of law and remand with instructions
that judgment be entered in favor of Hoggard.

REVERSED AND REMANDED

                     11
