                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-1198


MICHAEL GEMAEHLICH,

                Plaintiff - Appellant,

          v.

OCTAVIA L. JOHNSON, individually and in her official
capacity as Roanoke City Sheriff; DEPUTY KENNETH FERRELL,
individually and in his official capacity as a Roanoke City
Sheriff’s Office deputy; DEPUTY FRANK PORTER, individually
and in his official capacity as a Roanoke City Sheriff's
Office deputy; DEPUTY JENNIFER CALLAHAN, individually and in
her official capacity as a Roanoke City Sheriff’s Office
deputy; SERGEANT STEPHEN SOUTHERLAND, individually and in
his official capacity as a Roanoke City Sheriff’s Office
sergeant,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:12-cv-00263-SGW-RSB)


Submitted:   November 25, 2014            Decided:   December 2, 2014


Before WILKINSON, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John P. Fishwick, Jr.,      LICHTENSTEIN FISHWICK PLC, Roanoke,
Virginia, for Appellant.    Carlene Booth Johnson, PERRY LAW FIRM
PC, Dillwyn, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Michael    Gemaehlich    filed     a    second   amended    complaint

against Sheriff Octavia Johnson, Deputies Kenneth Ferrell, Frank

Porter, and Jennifer Callahan, and Sergeant Stephen Sutherland

seeking damages for excessive use of force, in violation of 42

U.S.C. § 1983 (2012), conspiracy to violate his civil rights,

and assault and battery in violation of state law.                      Gemaehlich

now   appeals    the     district   court’s        orders    granting    in   part

Defendants’     motion    to    dismiss,     granting   in    part   Defendants’

motion for summary judgment, and denying his motion for a new

trial.    We affirm. 1

            Gemaehlich contends that the district court erred in

overruling his objections to the magistrate judge’s discovery

ruling that only some of the complaints and investigative files

he sought were discoverable.         If timely objections are raised to

a   magistrate   judge’s       rulings   on   nondispositive      matters,     the

district court must review these objections and set them aside


      1
       We possess jurisdiction to review all of the issues
Gemaehlich raises on appeal. See Miami Tribe of Okla. v. United
States, 656 F.3d 1129, 1137 (10th Cir. 2011) (“It is a general
rule that all earlier interlocutory orders merge into final
orders and judgments . . . .”) (internal quotation marks and
brackets omitted); MLC Auto., LLC v. Town of S. Pines, 532 F.3d
269, 279 (4th Cir. 2008) (“[D]esignation of a postjudgment
motion in the notice of appeal is adequate to support a review
of the final judgment when the intent to do so is clear.”)
(internal quotation marks omitted).



                                         3
if “clearly erroneous or . . . contrary to law.”                        Fed. R. Civ.

P. 72(a).        The district court reviewed the magistrate judge’s

ruling and concluded that it was not clearly erroneous, in light

of the court’s ability to limit discovery under Federal Rule of

Civil Procedure 26(b)(2)(C) and the magistrate judge’s “hands-on

approach    to    the    discovery        process.”        We    conclude    that   the

district    court       did    not    abuse       its   discretion     in   overruling

Gemaehlich’s      objections         to    the     magistrate     judge’s   discovery

ruling.    See Kolon Indus., Inc. v. E.I. DuPont de Nemours & Co.,

748 F.3d 160, 172 (4th Cir. 2014). cert. denied, 83 U.S.L.W.

3084 (U.S. Nov. 3, 2014) (providing standard of review).

            Next,       Gemaehlich        contends      that    the   district   court

erred in granting summary judgment for Defendants on the issue

of whether the deputies used excessive force while searching him

at the intake counter.               We review de novo a district court’s

grant of summary judgment, “viewing the facts and the reasonable

inferences drawn therefrom in the light most favorable to the

nonmoving party.”             Emmett v. Johnson, 532 F.3d 291, 297 (4th

Cir. 2008).        Summary judgment is proper “if the movant 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).          “Conclusory or speculative allegations do not

suffice, nor does a mere scintilla of evidence in support of

[the nonmoving party’s] case.”                    Thompson v. Potomac Elec. Power

                                              4
Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks

omitted).

              Viewing the facts presented to the district court at

the    summary      judgment     stage     in    the    light     most    favorable   to

Gemaehlich, we conclude that the court did not err in granting

summary judgment for the Defendants regarding the incident at

the intake counter.             It is apparent from the evidence presented

that the deputies’ actions were not performed “maliciously and

sadistically for the very purpose of causing harm” but were made

“in    a    good   faith   effort     to   maintain       or   restore    discipline.”

Whitley      v.    Albers,      475   U.S.       312,    320-21    (1986)     (internal

quotation marks omitted); see Young v. City of Mount Ranier, 238

F.3d       567,    575   (4th     Cir.     2001)       (holding    that     “[p]retrial

detainees are entitled to at least the same protection under the

Fourteenth Amendment as are convicted prisoners under the Eighth

Amendment”) (footnote omitted).

              Gemaehlich also contends that the district court erred

in permitting Defendants to raise at trial the issue of whether

he    consulted      counsel     prior     to    filing    a    complaint     with    the

Sheriff’s Office.          Upon review, we note that the district court

took under advisement Gemaehlich’s motion in limine to exclude

any such evidence, and Gemaehlich did not renew his motion at

trial.       Instead, he opted to testify on direct examination that

he consulted counsel prior to filing the complaint.                         In choosing

                                             5
to    testify     to   that    fact   on   direct    examination,     we    conclude,

Gemaehlich has waived any claim on appeal that such evidence was

erroneously admitted.            See Ohler v. United States, 529 U.S. 753,

755 (2000) (“[A] party introducing evidence cannot complain on

appeal that the evidence was erroneously admitted . . . .”).

                Gemaehlich next contends that the district court erred

in refusing to provide a separate jury instruction on his claim

that Defendants conspired to deprive him of his civil rights.

In light of the jury’s verdict that the deputies did not use

excessive force against Gemaehlich, we need not address this

claim.         See Hinkle v. City of Clarksburg, 81 F.3d 416, 420-21

(4th Cir. 1996) (concluding that claims derivative of excessive

force claim were mooted by jury’s verdict finding no excessive

force); see also id. at 421 (“To establish a civil conspiracy

under      §   1983,   [a     plaintiff]    must    present   evidence      that   the

[defendants] acted jointly in concert and that some overt act

was    done     in   furtherance      of   the   conspiracy   which    resulted     in

[plaintiff’s] deprivation of a constitutional right . . . .”).

                Additionally,     Gemaehlich       contends   that    the   district

court erred in denying his motion for a new trial because the

jury’s verdict is against the clear weight of the evidence. 2                       “A


       2
       Gemaehlich also contends that the doctrine of cumulative
error entitles him to a new trial.      We have not determined
whether the cumulative error doctrine applies in civil cases,
(Continued)
                                            6
district court’s denial of a motion for a new trial is reviewed

for abuse of discretion, and will not be reversed save in the

most exceptional circumstances.”               Minter v. Wells Fargo Bank,

N.A.,   762    F.3d   339,   346   (4th    Cir.   2014)    (internal    quotation

marks omitted).       When the party moving for a new trial did not

previously move for judgment as a matter of law under Federal

Rule of Civil Procedure 50, “our scope of review is exceedingly

confined, being limited to whether there was any evidence to

support the jury’s verdict, irrespective of its sufficiency, or

whether plain error was committed which, if not noticed, would

result in a manifest miscarriage of justice.”               Id.

              Gemaehlich did not move for judgment as a matter of

law.    Our review of the evidence convinces us that there is

evidence supporting the jury’s verdict, and there was no plain

error committed that would result in a miscarriage of justice if

we   declined    to   notice   it.        We   therefore    conclude    that   the

district      court   did    not     abuse     its   discretion    in    denying

Gemaehlich’s motion.

              Finally,   turning     to   Gemaehlich’s     challenges     to   the

district court’s order granting in part Defendants’ motion to



see Anthony v. Ward, 336 F. App’x 311, 322 (4th Cir. 2009) (No.
07-1932); however, even if we recognized its application in a
civil context, Gemaehlich has not demonstrated errors allowing
its application in his case.



                                          7
dismiss, we first conclude that we need not address the merits

of    Gemaehlich’s     contention        that     the    district    court       erred    in

dismissing all claims against Johnson, in light of the fact that

the jury returned a verdict for the deputies in this case.                               See

Hinkle, 81 F.3d at 420-21 (holding that challenge to district

court’s grant of summary judgment for supervisor was mooted by

jury verdict for defendant officer because “[i]n the absence of

any    underlying      use   of       excessive    force     against       [plaintiff],

liability cannot be placed on . . . a supervisor”).

            Gemaehlich also contends that the district court erred

in dismissing his state law assault and battery claims under the

one-year statute of limitations found in Virginia Code § 8.01-

243.2 (2007).         “We review de novo a district court’s dismissal

for    failure   to    state      a    claim     under    Federal     Rule       of   Civil

Procedure    12(b)(6).”           Sec’y     of    State     for     Def.    v.    Trimble

Navigation, Ltd., 484 F.3d 700, 705 (4th Cir. 2007).                              Section

8.01-243.2 imposes a one-year statute of limitations on actions

relating to the conditions of confinement, 3 and the Supreme Court

of    Virginia    applies         this    limitations        period        to    pretrial

detainees who are no longer confined at the time they bring the


       3
         Section  8.01-243.2 also   requires exhaustion  of
administrative remedies prior to filing a civil complaint;
however, Defendants did not raise the issue in the district
court.



                                            8
action.   See Lucas v. Woody, 756 S.E.2d 447 (Va. 2014); Bing v.

Haywood, 722     S.E.2d   244      (Va.   2012).      Gemaehlich’s     state   law

assault and battery claim, brought nearly seven months after the

expiration of the one-year statute of limitations, is therefore

barred.   Thus, the district court correctly granted Defendants’

motion to dismiss that claim.

           Accordingly,       we   affirm     the   district    court’s    orders.

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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