                                PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                               No. 12-2047


MARQUS L.       STEVENSON;   GARY   L.   BARNETT;   CHRISTOPHER   T.
HOWARD,

                  Plaintiffs – Appellants,

           and

KIRK BOND, JR.,

                  Plaintiff,

           v.

CITY OF SEAT PLEASANT, MARYLAND; LOWERY, Officer, Badge No.
3384, in both his official and individual capacities; ADEY,
PFC, Badge No. 2712, in both his official and individual
capacities; PRINCE GEORGE'S COUNTY, MD,

                  Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-
cv-01791-RWT)


Argued:   October 30, 2013                   Decided:   February 21, 2014


Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed   in  part,   reversed  in   part,  and   remanded with
instructions by published opinion.       Judge Floyd wrote the
opinion, in which Judge Diaz and Judge Anderson joined.


Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER, PLLC,
Washington, D.C., for Appellants.  Shelley Lynn Johnson, PRINCE
GEORGE'S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland;
Victoria M. Shearer, KARPINSKI, COLARESI & KARP, PA, Baltimore,
Maryland, for Appellees.




                               2
FLOYD, Circuit Judge:

     This      appeal    comes       to    the   Court         after      what    the    district

court described as “a rather long and tortured factual history.”

Several     orders      are    on     appeal:       dismissal;            grant     of   summary

judgment;      denial     of     a    motion       pursuant          to    Federal       Rule   of

Civil Procedure         59(e);       and    denial        of    a      motion     pursuant      to

Federal Rule of Civil Procedure 60(b).                          As explained in greater

detail below, we affirm in part, reverse in part, and remand

with instructions.



                                             I.

                                             A.

     According to the complaint, in the early-morning hours of

July 8, 2007, police officers assaulted Marqus Stevenson, Gary

Barnett,    and    Christopher            Howard    (collectively,               “Appellants” 1)

outside of a nightclub in Prince George’s County, Maryland (the

“County”).        Appellants claim that the attack was unprovoked.

Among    the    officers       present      at     the     altercation            were   Officer

LaVance Lowery of the City of Seat Pleasant, Maryland (“Seat

Pleasant”),      and    Officer       Rickie       Adey    of       the   County.         Officer


     1
       A fourth individual, Kirk Bond, was also assaulted. Bond
was a named plaintiff in the complaint but was dismissed with
prejudice from the case after he failed to participate in
discovery.



                                                   3
Lowery was the only Seat Pleasant officer present, but there

were       multiple      County    officers        present.           Although     none    of

Appellants        were    able     to    identify       which     individual       officers

assaulted them, it is undisputed that Officer Lowery arrested

Stevenson.        The merits of that arrest, however, are contested.

       On July 8, 2009, Appellants sued Officer Adey and Officer

Lowery      in    their    official       and    individual       capacities       and    the

County and Seat Pleasant on the theory of vicarious liability.

Although         Appellants’      complaint           mentions     other     unidentified

police      officers      when     describing          the    events    surrounding       the

assault,      those      officers       were    not    named     as    defendants.        The

complaint contained six counts: Excessive Force/Police Brutality

(“Excessive         Force”),        Battery,           Intentional        Infliction       of

Emotional Distress, False Arrest, a count under 42 U.S.C. § 1983

for Deprivation of Civil Rights, and a count under Articles 24

and 26 of the Maryland Constitution.                         The defendants each moved

for partial or total dismissal of the counts against them, which

Appellants        did    not    oppose. 2       After        dismissal,    the    following

counts       remained:     as     to     Officer       Adey,     Excessive       Force    and

Battery; as to the County, the Maryland constitutional count;


       2
       Appellants’ counsel stated at oral argument that he did
not oppose the motions to dismiss due to his inability to make
certain submissions and representations to the district court at
that time. The Court appreciates this honesty and candor.



                                                   4
and as to Officer Lowery, the § 1983 count.               All counts against

Seat Pleasant were dismissed.         As is relevant for purposes of

this appeal, the § 1983 count states as follows:

               35.     Plaintiffs further allege that
          defendants Lowery and Adey, with deliberate
          indifference to and reckless disregard for
          the safety and well-being of the plaintiffs,
          and in violation of the 4th and 5th
          Amendments to the Constitution, did on
          July 8, 2007,    commit    or   allow   to    be
          committed   an   unreasonable   seizure   which
          deprived     the     plaintiffs     of     their
          Constitutional rights without affording them
          due process of law.

               36.   As a direct and proximate result
          of the unreasonable actions of defendants
          Lowery and Adey, . . . Marqus L. Stevenson
          [was] subjected to an unlawful seizure when
          [he was] arrested without probable cause and
          all of the plaintiffs were subjected to an
          unreasonable seizure when they all were
          subjected to unreasonable and unwarranted
          force.

     Officer Adey, Officer Lowery, and the County (collectively,

“Appellees”)   subsequently      moved   for      summary    judgment,    which

Appellants opposed.       The district court held a hearing on the

motions   on   December    21,   2010,       at   which     time   it    granted

Appellees’ motions in their entireties except as to the § 1983

count against Officer Lowery by Stevenson.                  As to the other

counts, the district court determined that there was no credible

evidence to show that Officer Adey and Officer Lowery assaulted

any of Appellants and, absent such a showing with respect to



                                         5
Officer Adey, the County could not be liable on the theory of

vicarious liability.         Finally, the district court stated the

following   at    the   summary     judgment    hearing    with     respect   to

Appellants’ theory of bystander liability:

            Bystander liability was not pled in this
            case. There was no pleading indicating that
            an officer who had control of the situation
            observed   people   in   violation  of   the
            recognition of that as a cause of action and
            failed to do something about it.     And to
            allow this to be pled and asserted for the
            first time in response to a Summary Judgment
            motion, when it hasn’t been pled and hasn’t
            been explored in discovery, is not going to
            be considered by the Court.

Following   the   hearing,    the    district    court    entered    a   written

order on December 22, 2010, respecting summary judgment.

     On January 13, 2011, Appellants moved pursuant to Federal

Rule of Civil Procedure 59(e) to alter or amend the district

court’s ruling on summary judgment.              Specifically, Appellants

contended that, inter alia, they had sufficiently stated a cause

of action for bystander liability.              The district court denied

Appellants’ motion on May 19, 2011.              In doing so, the court

stated that it “does not dispute that bystander liability is a

cognizable theory under § 1983.           However, [Appellants] utterly

failed to plead this theory or otherwise provide fair notice

to . . . [Appellees] that they sought liability on this theory.”

     A jury trial was held from May 31 to June 2, 2011, on the

sole count of Stevenson’s § 1983 claim against Officer Lowery.


                                         6
Officer    Lowery      moved       for   judgment      at    the    end    of   Stevenson’s

presentation of the case and again after he presented his own

case, and the district court reserved judgment on both motions.

Then, during the rebuttal closing argument, Stevenson’s attorney

mentioned    bystander         liability,        and    Officer      Lowery’s       attorney

objected.    The district court allowed the reference to bystander

liability,    and      the    case       was   submitted       to   the    jury.      During

deliberations, the jury submitted the following question to the

court: “Does excessive force require contact?                             Or if a police

officer does not intervene in the [use of] excessive force is

that consider[ed] excessive force?”                     The court then brought the

jury back into the courtroom, instructed the jury on bystander

liability, and allowed Officer Lowery to sur-rebut Stevenson’s

argument.        The     jury       ultimately         found    that      Officer    Lowery

violated    Stevenson’s        constitutional           rights      by    using    excessive

force and awarded to Stevenson damages in the amount of $36,000.

     After the trial, Officer Lowery moved for judgment as a

matter of law pursuant to Federal Rule of Civil Procedure 50(b)

on the grounds that bystander liability had not been pleaded and

was improperly injected into the case at closing argument.                                 The

district    court      held    a    hearing     on     Officer      Lowery’s      motion    on

January    12,   2012,        at    which      time    the     court      determined    that

paragraphs 35 and 36 of the complaint did sufficiently state a




                                                  7
cause of action for bystander liability, thus changing course

from its ruling at summary judgment.                The court stated:

            With the 20/20 vision of hindsight, I
            believe that I probably overstated things in
            my May 2011 ruling . . . in concluding that
            [Appellants]    utterly    failed     to    plead
            [bystander   liability]    because    they    did
            indicate in the relevant paragraph of the
            complaint that the defendants, . . . with
            deliberate   indifference    to   and    reckless
            disregard for [the] safety and well-being of
            [Stevenson] . . . did, on July 8, 2007,
            commit   or   allow  to   be    committed    an[]
            unreasonable seizure . . . . I think with
            the 20/20 vision of hindsight I would have
            to say that [bystander liability] was pled.

            .   .   .

                 I believe that I have made an error,
            and I would rather fix it myself than have
            the Fourth Circuit do it.

      Although Officer Lowery did not ask for a new trial in his

motion, the district court granted Officer Lowery’s motion and

ordered a new trial pursuant to its authority under Rule 50(b).

The   court     stated    that,   “at    the       new   trial,   the    theory      of

Bystander     Liability    will   be    front      and   center.”       Prior   to    a

second trial, however, Officer Lowery and Stevenson reached a

settlement agreement.

      On May 18, 2012, Appellants moved pursuant to Federal Rule

of Civil Procedure 60(b) to vacate the district court’s May 19,

2011 order as it pertained to bystander liability.                       Appellants

argued   that,      in   light    of    the       district   court’s     post-trial



                                              8
determination     that       they    had    sufficiently       pleaded    bystander

liability,     each     of   Appellants      was   entitled     to   a    trial   for

bystander liability against Officer Adey and the County, and

Howard and Barnett were also entitled to a trial for bystander

liability against Officer Lowery.                  The district court denied

Appellants’ Rule 60(b) motion on the grounds that “there is no

mistake or injustice that justifies vacating the May 19, 2011

order” and because the Rule 60(b) motion was not timely filed.

On   this    latter     point,      the    district    court     ruled    that    the

Rule 60(b) motion was effectively a motion to vacate the written

summary     judgment    order—dated        December    22,    2010—and     that    the

one-year limitations period applicable to Rule 60(b)(1) motions

had expired.

     On     August 6,    2012,      the    district   court    entered     an    order

respecting Officer Lowery and Stevenson’s settlement agreement

and dismissing all claims.            Appellants subsequently timely filed

a notice of appeal pertaining to (1) the district court’s grant

of Appellees’ unopposed motions to dismiss; (2) the grant of

summary     judgment    to   Appellees;      (3) the    denial    of     Appellants’

Rule 59(e) motion; and (4) the denial of Appellants’ Rule 60(b)

motion.     This Court has jurisdiction over the appeal pursuant to

28 U.S.C. § 1291.




                                              9
                                              B.

      Before reaching the merits of the several orders on appeal,

we must first sort out what issues remain before the Court.

Because none of the orders on appeal either (1) adjudicated “all

the   claims     or   the    rights     and    liabilities           of   .   .   .    all    the

parties”    or    (2) included          an   “express[]          determin[ation]”            that

there was no just reason for delaying final judgment, each of

the orders listed in Appellants’ Notice of Appeal did not become

ripe for appeal prior to the district court’s August 6, 2012

order dismissing all claims against Officer Lowery; thus, each

order is properly before the Court from a procedural standpoint.

See Fed. R. Civ. P. 54(b); see also Fox v. Balt. City Police

Dep’t, 201 F.3d 526, 530 (4th Cir. 2000) (“We lack jurisdiction

to review a district court's order unless that order constitutes

a ‘final’ judgment. . . . Ordinarily, a district court order is

not   ‘final’        until   it    has       resolved          all   claims       as   to     all

parties.”).

      Appellants, however, presented no arguments in their brief

against the district court’s order granting Appellees’ and Seat

Pleasant’s unopposed motions for partial and total dismissal.

Accordingly, even though Appellants listed the February 17, 2010

dismissal order in their Notice of Appeal, Appellants waived any

challenge regarding the dismissal of all counts against Seat

Pleasant,      all    counts      but    the   §        1983    count     against      Officer


                                                   10
Lowery, all counts but the Excessive Force and Battery counts

against    Officer       Adey,   and    all    counts     but   the     Maryland

constitutional count against the County. 3              See Canady v. Crestar

Mortg.    Corp.,   109    F.3d   969,   973–74   (4th    Cir.   1997)    (issues

raised in notice of appeal but not briefed on appeal are deemed

waived).


     3
        Even though Appellants did not challenge the motions to
dismiss, we note that the district court nevertheless has an
obligation to review the motions to ensure that dismissal is
proper.    See Pomerleau v. W. Springfield Pub. Sch., 362 F.3d
143, 145 (1st Cir. 2004) (“When deciding a 12(b)(6) motion, the
mere fact that a motion to dismiss is unopposed does not relieve
the district court of the obligation to examine the complaint
itself to see whether it is formally sufficient to state a
claim. This obligation means that a court may not automatically
treat a failure to respond to a 12(b)(6) motion as a procedural
default.” (citation and internal quotation marks omitted)); see
also Webb v. Morella, 457 F. App’x 448, 452 n.4 (5th Cir. 2012)
(“The district court granted the motion to dismiss the complaint
under Rule 12(b)(6) because it was ‘unopposed.’ The Federal
Rules of Civil Procedure, however, do not, by their own terms,
require a party to file a response in opposition to a motion to
dismiss. Accordingly, the district court improperly granted the
motion to dismiss for failure to state a claim solely because
the [plaintiffs] failed to oppose the motion.” (citation
omitted)); cf. Robinson v. Wix Filtration Corp., 599 F.3d 403,
409 n.8 (4th Cir. 2010) (“[I]n considering a motion for summary
judgment, the district court ‘must review the motion, even if
unopposed, and determine from what it has before it whether the
moving party is entitled to summary judgment as a matter of
law.’” (quoting Custer v. Pan Am. Life Ins. Co., 12 F.3d 410,
416 (4th Cir. 1993))).      Here, although the district court’s
written order effecting dismissal did not comment on the merits
of the motions to dismiss, the disrict court stated at the
summary judgment hearing that it granted the dismissal motions
for the stated reasons.     Subject to certain misstatements of
law, see infra note 4, we conclude that dismissal for the stated
reasons was proper.



                                          11
        The remaining three orders on appeal—summary judgment, the

denial    of    Appellants’         Rule    59(e)         motion,       and   the    denial       of

Appellants’ Rule 60(b) motion—present a host of issues that we

consider       in    turn,     beginning        with        the     sufficiency         of    the

complaint with respect to bystander liability.                                     Although the

standards for reviewing the aforementioned orders are different,

compare Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en

banc)    (decision        on   summary      judgment         reviewed         de   novo),     with

Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir.

2010) (decision on Rule 59(e) motion reviewed for an abuse of

discretion), and Eberhardt v. Integrated Design & Constr., Inc.,

167 F.3d 861, 869 (4th Cir. 1999) (decision on Rule 60(b) motion

reviewed for abuse of discretion), Appellants’ Notice of Appeal

evinced    a    clear      intent    to    review         the     summary     judgment       order

itself, and thus our review is de novo.                             See Brown v. French,

147   F.3d     307,       310–11    (4th    Cir.          1998)    (“[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.”).



                                               II.

      This     Court       recognizes      a    cause        of    action      for    bystander

liability “premised on a law officer’s duty to uphold the law

and   protect       the    public    from      illegal          acts,    regardless     of    who


                                                     12
commits them.”        Randall v. Prince George’s Cnty., 302 F.3d 188,

203   (4th    Cir.    2002).    To   succeed        on     a    theory    of     bystander

liability, a plaintiff must demonstrate that a law-enforcement

officer “(1) [knew] that a fellow officer [was] violating an

individual’s     constitutional      rights;         (2)         ha[d]    a     reasonable

opportunity to prevent the harm; and (3) cho[se] not to act.”

Id. at 204 (footnote omitted).             As quoted in its entirety above

and stated in relevant part here, paragraph 35 of the complaint

alleges that Officer Lowery and Officer Adey “did on July 8,

2007, commit or allow to be committed an unreasonable seizure

which    deprived     the   plaintiffs    of       their       Constitutional       rights

without affording them due process of law.”                         (Emphasis added.)

Appellants maintain on appeal that this language sufficiently

states    a   cause    of   action   for       bystander          liability,      whereas

Appellees contend that the district court erred in determining,

post-trial,     that     bystander    liability            had     been       sufficiently

pleaded the entire time and that they were put on notice of

Appellants’ claim.



                                         A.

      In general, whether a complaint sufficiently states a claim

upon which relief can be granted is governed by the Supreme

Court’s plausibility pleading framework.                   See Ashcroft v. Iqbal,

556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544


                                              13
(2007).      Both Iqbal and Twombly, however, pertain to whether a

complaint contains sufficient factual matter to proceed beyond

dismissal.         See Iqbal, 556 U.S. at 678 (“A claim has facial

plausibility        when   the    plaintiff       pleads      factual    content     that

allows    the      court   to    draw    the    reasonable      inference    that    the

defendant is liable for the misconduct alleged.”); Twombly, 550

U.S. at 570 (“[W]e do not require heightened fact pleading of

specifics, but only enough facts to state a claim to relief that

is plausible on its face.”).                  Here, none of Appellees moved to

dismiss      the    §   1983    count    of    the    complaint   for    insufficient

factual   detail.          Rather,      Officer      Lowery   answered    the   §    1983

count; Officer Adey moved to dismiss the § 1983 count on the

theories that the arrest of Stevenson was lawful and that the

Fifth Amendment applies to the federal government only and not

to   state    governments        or   political       subdivisions      thereof 4;   and



      4
        On this latter theory, we note that only certain
provisions of the Fifth Amendment do not apply to the individual
States.    See Albright v. Oliver, 510 U.S. 266, 272 (1994)
(citing Hurtado v. California, 110 U.S. 516, 538 (1884)
(requirement of indictment by grand jury for capital crimes not
applicable to the States)); but see Benton v. Maryland, 395 U.S.
784, 794 (1969) (prohibition on double jeopardy applicable to
the States); Malloy v. Hogan, 378 U.S. 1, 6 (1964) (privilege
against self-incrimination applicable to the States). Moreover,
Officer Adey’s motion to dismiss references an “equal protection
clause of the Fifth Amendment.” To clarify, there is no express
equal protection clause in the Fifth Amendment, as there is in
the Fourteenth Amendment.   Detroit Bank v. United States, 317
U.S. 329, 337 (1943). However, the Supreme Court has been clear



                                                14
the County moved for dismissal on the theory that, pursuant to

Monell v. Department of Social Services, 436 U.S. 658 (1978),

municipal    governments       cannot    be    held       vicariously          liable   for

constitutional    violations      committed         by    their    employees       unless

the employees were acting pursuant to a “policy or custom,” and

the County does not endorse a “policy or custom” whereby its

employees violate others’ constitutional rights.

     Further, Appellees did not raise the sufficiency of the

pleading in the § 1983 count with respect to bystander liability

until their reply to Appellants’ opposition to the motions for

summary judgment.        And even then, Appellees did not argue that

the complaint contained insufficient factual matter; rather, in

written reply and at the summary judgment hearing, Appellees

contended only that they were never put on notice of Appellants’

legal theory of bystander liability.                     Accordingly, the factual

pleading     framework    of    Twombly–Iqbal            is    largely     inapplicable

here,   as   Appellees’       argument    is       that       Appellants       failed   to

connect    the   dots    in    their    complaint—not           that     the    complaint




that “the Due Process Clause of the Fifth Amendment forbids the
Federal Government to deny equal protection of the laws.” Vance
v. Bradley, 440 U.S. 93, 94 n.1 (1979); see also Weinberger v.
Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (“The Court’s approach
to Fifth Amendment equal protection claims has always been
precisely the same as to equal protection claims under the
Fourteenth Amendment.”).



                                              15
itself contains insufficient factual information from which to

draw reasonable inferences.



                                          B.

       Appellees     raise    two    principal           arguments         against     the

district court’s post-trial ruling that bystander liability was

sufficiently pleaded in the § 1983 count (paragraphs 35 and 36)

of the complaint.        We address these arguments in turn, reviewing

the district court’s ruling de novo.                  See Teachers’ Ret. Sys. v.

Hunter, 477 F.3d 162, 170 (4th Cir. 2012) (standard of review

regarding the legal sufficiency of a complaint).



                                          1.

       Appellees’ first challenge to the complaint’s sufficiency

with    respect     to   bystander     liability          is    that       “the    phrase

[‘bystander    liability’]      appeared         nowhere       in    the    complaint.”

Appellants, however, were not required to use any precise or

magical words in their pleading.               See, e.g., Sansotta v. Town of

Nags Head, 724 F.3d 533, 548 (4th Cir. 2013) (“We see no reason

why the [plaintiffs] needed to use any special phrasing in their

complaint, as this complaint gave the [defendant] ‘fair notice’

of the [plaintiffs’] claims.”); E.I. du Pont de Nemours & Co. v.

Kolon    Indus.,    Inc.,    637    F.3d       435,    447–48       (4th    Cir.     2011)

(rejecting    the    argument      that    a     cause    of     action      for     price


                                               16
discrimination had not been sufficiently pleaded “because [the

counterclaimant] did not use the phrase ‘price discrimination’

in its Counterclaim”); see also Okoli v. City of Baltimore, 648

F.3d       216,    224    n.8      (4th    Cir.       2011)        (“[S]sexual         harassment

complaints         need   not      include       ‘magic       words’      such    as    ‘sex’   or

‘sexual’ to be effective.” (citing cases)); Labram v. Havel, 43

F.3d 918, 920–21 (4th Cir. 1995) (“Legal labels characterizing a

claim cannot, standing alone, determine whether it fails to meet

[the standard for notice pleading pursuant to Federal Rule of

Civil Procedure 8(a)(2)].”).                     Our sister circuits have reached

the same conclusion regarding whether precise or specific words

must be present to sufficiently state a cause of action.                                    See,

e.g., Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 310 (6th

Cir. 2009) (“Courts may look to—they must look to—the substance

of    a    complaint's       allegations         .    .   .   .    Otherwise,      [statutory]

enforcement would [be] reduce[d] to a formalistic search through

the pages of the complaint for magic words . . . .”); United

States       v.     Davis,      261       F.3d       1,   45       n.40     (1st       Cir. 2001)

(“[Plaintiff] need not have used the magic word ‘declaratory

judgment’ in its pleading to put the defendants on notice that

its       claims    could     be    resolved         with      a    grant    of    declaratory

relief.”).

          Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), is further

instructive.         There, the plaintiff sued Transportation Security


                                                     17
Administration (TSA) agents pursuant to 42 U.S.C. § 1983 for

violating his First Amendment right to free speech after he was

arrested for peacefully protesting the TSA’s screening measures.

See id. at 383–84.      Although the TSA agents lacked the official

authority    to   arrest     him,    the    plaintiff    alleged      that    they

effected an arrest of him by reporting his protest to airport

police, who had the requisite authority.                    Id. at 386.           The

district    court   dismissed        the    complaint,      stating   that        the

complaint “doesn’t say directly that [the plaintiff’s arrest]

was at the instruction of the TSA.”              Id. at 385 (alteration in

original) (citation and internal quotation marks omitted).                    This

Court reversed, noting that “Section 1983 . . . anticipates that

a   government    official    will    be    ‘responsible     for   the   natural

consequences of his actions[,]’” id. at 386 (quoting Malley v.

Briggs, 475 U.S. 335, 344 n.7 (1986)), and because “[i]t is an

undoubtedly natural consequence of reporting a person to the

police that the person will be arrested,” “it [was] logical to

assume that [the TSA agents] had a hand in [the plaintiff’s]

arrest,” id. at 386.

      The same is true in this case as in Tobey—that Appellants’

complaint does not recite expressly the elements of bystander

liability as set forth in Randall does not direct the conclusion

that the complaint fails to plead a cause of action for the

same.      Appellants   alleged      that    they   “were    subjected       to    an


                                            18
unreasonable         seizure          when       they          all        were     subjected            to

unreasonable and unwarranted force.”                           Based on Officer Lowery’s

and    Officer     Adey’s          undisputed        presence         at    the    scene          of   the

altercation and the allegation that the officers “allow[ed] to

be    committed     .    .     .    unreasonable          seizure[s],”            it    requires         no

legal     gymnastics           or    finagling            to    liken        the       language         of

paragraphs     35       and    36    of   the     complaint           with       the    notion         that

Officer Lowery and Officer Adey (1) knew that fellow officers

were     violating        Appellants’           constitutional               rights          by    using

excessive     force,          (2) had     a    reasonable            opportunity         to       prevent

such violations, and (3) chose not to act.                                   See Randall, 302

F.3d at 204.            In other words, it was “an undoubtedly natural

consequence”        that,       absent        intervention           by    Officer       Lowery         and

Officer      Adey,       other        officers            would       continue          to        violate

Appellants’ constitutional rights.                        See Tobey, 706 F.3d at 386.



                                                 2.

        Appellees’ second argument that they were not put on notice

of Appellants’ bystander-liability claim is that “[a] ‘bystander

liability’ cause of action was never asserted by Appellants in

their    discovery        responses.”                We    have      reviewed          the    exhibits

submitted with Appellees’ separate motions for summary judgment

and    did   not     find       anything        in    Appellees’           interrogatories              to

Appellants or the transcripts of Appellants’ depositions where


                                                      19
Appellees asked Appellants about their theories of liability for

the case.           And, perhaps not surprisingly, Appellees have not

provided      any    citations       to    instances     where     they       allege   that

Appellants were asked about the theories of liability underlying

the    case    but    failed    to     provide      adequate    notice     of   bystander

liability.          At best, Appellees asked Appellants to, “Provide a

complete      statement        of    the    facts     upon     which    you     base   your

contention that you were the victim of the use of excessive

force, stating precisely what you contend was done to you and by

whom.”        The very essence of bystander liability, however, is

premised on an individual’s passivity and nonparticipation while

another individual violates a person’s constitutional rights—not

on the bystander actively causing the harm.                            See Randall, 302

F.3d    at    204     n.24     (“The      rationale     underlying       the     bystander

liability theory is that a bystanding officer, by choosing not

to intervene, functionally participates in the unconstitutional

act of his fellow officer.” (emphasis added)).                            Thus, to the

extent       that     Appellees        claim     that    Appellants        should      have

mentioned      bystander       liability       in   response     to     their    discovery

inquiries, Appellees simply did not ask the correct questions.

       Regardless, discovery is an exercise in fact-finding, and

it    is   the      complaint—not         depositions     or    interrogatories—that

provides “fair notice” to defendants of the allegations against

them.      See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190


                                                 20
(4th Cir. 2010).         Thus, inasmuch as we have already determined

above    that    the    plain   language      of    the    complaint    sufficiently

states    a     cause   of    action    for    bystander       liability,     whether

“bystander liability” was mentioned specifically in Appellants’

answers    and     responses     to    Appellees’         discovery    inquiries   is

inapposite of the notice issue.

      For the reasons set forth above, we affirm the district

court’s    post-trial        determination         that   Appellants’       complaint,

specifically paragraphs 35 and 36, sufficiently states a cause

of action for bystander liability pursuant to 42 U.S.C. § 1983.

In doing so, however, we must therefore reverse and vacate the

district court’s summary judgment ruling to the opposite effect.



                                         C.

      Having determined that the district court erred at summary

judgment in its construction of the complaint with respect to

bystander liability, it is necessary to sort out which parties

this reversal impacts.            As noted above, the only claims that

survived dismissal were the Excessive Force and Battery counts

as to Officer Adey, the § 1983 count as to Officer Lowery, and

the Maryland constitutional count as to the County.                          Of these

remaining counts, however, only the § 1983 count contains the

“allow to be committed” language that states a cause of action

for   bystander     liability.         Accordingly,        inasmuch    as    bystander


                                              21
liability was not pleaded in the Excessive Force and Battery

counts      (nor    do     Appellants      contend       otherwise),      Officer   Adey

cannot be held liable as a bystander.                      It further follows that,

at least with respect to bystander liability, 5 the County cannot

be   held    vicariously          liable    for    the     Maryland      constitutional

count.      See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999)

(“As there are no underlying constitutional violations by any

individual, there can be no municipal liability.” (citing City

of L.A. v. Heller, 475 U.S. 796, 799 (1986))).

      Appellants’ counsel argued at the summary judgment hearing

that Appellants intended to assert vicarious liability against

the County         for    all   County     officers      who    either   committed,   or

allowed      to     be    committed,       constitutional         violations     against

Appellants—not just Officer Adey.                      The language of the Maryland

constitutional           count,   however,     does       not   sweep    this   broadly.

Specifically, that count states that, “Seat Pleasant and Prince

George’s County are liable on the basis of respondeat superior

for any violations of the Maryland Constitution by Defendants

Lowery and Adey that deprived plaintiffs of their rights under

Articles 24 and 26.”               (Emphasis added.)             Although Appellants

      5
       Appellants also challenge the district court’s grant of
summary judgment to Officer Adey on the Excessive Force and
Battery counts and the grant of summary judgment to the County
on the Maryland constitutional count.        We address these
challenges infra at Part III.



                                                  22
were not required to list as defendants (either by name or as

John Does) all County officers who were present at the scene to

assert liability against the County for those officers’ actions,

the Maryland constitutional count must have still put the County

on   notice     of     any    claims     against      it    due    to    the    actions      of

officers not named Adey; it plainly did not.                         Moreover, the fact

that      Appellants           incorporated           by      reference          background

paragraphs 1–19         of    the     complaint—which        mention      unnamed       County

officers    as    being       present     at   the     altercation        and    assaulting

Appellants—into         the     Maryland       constitutional           count    is     of   no

moment.     See, e.g., Cook v. Howard, 484 F. App’x 805, 808 n.3

(4th Cir. 2012) (noting that although “the amended complaint

also designated ‘John Does 1–100’ as defendants[,] . . . none of

the counts specifically referred to them”); Lee v. State Bd. for

Cmty. Coll., 62 F.3d 1415 (4th Cir. 1995) (unpublished table

decision)       (“In    her    complaint,       [the       plaintiff]      addressed         the

promotion     issue     as     factual    background         and   not    as     a    separate

count.      [The       defendant]       was    not    on    notice      that    failure      to

promote was a separate claim, nor did the district court address

it as such.       Consequently, we need not address this issue.”).

       To summarize, the only defendant that the reversal of the

summary    judgment          ruling    with    respect      to     bystander         liability

impacts    is    Officer       Lowery     because      he    is    the    only       defendant

against whom the § 1983 count survived dismissal.                              Accordingly,


                                                 23
we   reverse        and    remand       this      case      to    the     district         court    to

reconsider the parties’ summary judgment papers and to order

additional       briefing,         if   necessary,          regarding         Officer      Lowery’s

potential       liability      as       a    bystander          to     the    assaults      against

Howard and Barnett.            And because we determine that the district

court erred at summary judgment, we need not consider the merits

of Appellants’ motions pursuant to Rules 59(e) and 60(b) that

pertain to the same subject matter.



                                                 III.

        As noted above, Appellants also appeal the district court’s

grant of summary judgment and denial of their Rule 59(e) motion

with    respect       to    Officer         Adey       as   a    principal       actor       in    the

assaults and         the    County          as   being      vicariously        liable       for    the

same.        As with the sufficiency of the complaint, we will review

the district court’s summary judgment ruling and not the order

denying the subsequently filed Rule 59(e) motion; accordingly,

our review is de novo.              See Brown, 147 F.3d 310–11.



                                                  A.

        At    the    summary        judgment           hearing,         the    district       court

determined       that      there    was      no    credible           evidence   to    show       that

Officer       Adey    was     responsible           for         the    assaults       on    Howard,

Barnett, or Stevenson, or that Officer Lowery was responsible


                                                       24
for   the   assaults      on    Howard   or    Barnett. 6          We   say     “credible”

evidence because Appellants did submit multiple affidavits with

their     opposition      to    Appellees’     motion       for    summary      judgment.

Those affidavits—and specifically Barnett’s affidavit—were what

Appellants     principally        relied      upon    at     the     summary     judgment

hearing to show that there remained disputes of material fact

for trial.     But as the district court noted, Barnett’s affidavit

contradicted his earlier-given testimony and was “riddled with

inconsistencies.”         For example, Barnett stated in his affidavit

that he “witnessed an Officer, whose name [he] later learned was

Adey,     strike   Chris       Howard    in    the    face     and      knock    [Howard]

unconscious.”      Yet, Barnett previously stated at his deposition

that it was not until “after [Howard was knocked out] that[]

. . . Officer Adey sprung into action.”                     (Emphasis added.)          More

importantly,       when        Barnett   was        asked     point-blank         in    his

deposition, “Did you see Officer Adey physically hit, touch or

come into contact with you or Mr. Stevenson or Mr. Bond or Mr.

Howard?”, Barnett replied only, “Mr. Bond.”




      6
       In their appeal brief, Appellants made the same arguments
against the grant of partial summary judgment to Officer Lowery
with respect to Howard and Barnett as they did in regard to the
grant of summary judgment to Officer Adey with respect to all
Appellants.   Accordingly, we need only address the grant of
summary judgment to Officer Adey to resolve the issue.



                                               25
       This    Court    has    previously     referred        to   bogus   affidavits

submitted in opposition to summary judgment for the purpose of

creating disputes of material fact as “sham” affidavits.                             See,

e.g., Jackson v. Consolidation Coal Co., 21 F.3d 422 (4th Cir.

1994) (unpublished table decision); see also Barwick v. Celotex

Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“If a party who has

been examined at length on deposition could raise an issue of

fact simply by submitting an affidavit contradicting his own

prior    testimony,     this    would    greatly     diminish        the   utility     of

summary judgment as a procedure for screening out sham issues of

fact.” (citation and internal quotation marks omitted)).                            Here,

we recognize that the events immediately preceding the assault

on     Appellants      occurred      suddenly      and   that       Appellants      were

subjected to a great deal of stress; thus, we do not accuse

Appellants,      and    specifically        Barnett,     of    submitting      a    sham

affidavit to create a bogus material factual dispute with the

goal    of    defeating    summary      judgment.        Nevertheless,        we    must

decide this case on the record before us and, based on that

record, we cannot say that the district court erred due to the

inconsistencies        between       Barnett’s     prior       testimony      and    his

affidavit.      See Barwick, 736 F.2d at 960 (“A genuine issue of

material fact is not created where the only issue of fact is to

determine      which      of   the    two    conflicting           versions   of     the

plaintiff's testimony is correct.”).                Accordingly, we affirm the


                                              26
district’s       grant    of     summary    judgment         to     Officer        Adey     on    the

Excessive        Force     and       Battery     counts          with       respect         to    all

Appellants and the grant of summary judgment to Officer Lowery

in his alleged role as a principal actor (i.e., one who actually

committed the assaults) on the § 1983 count with respect to

Howard and Barnett.



                                               B.

     Two corollary rulings flow from our decision to affirm this

aspect   of      the     district       court’s          grant    of     summary         judgment.

First,     as     similarly          adjudicated          above     in      the        context     of

bystander       liability,       because       Officer       Adey      is    not       liable     for

either   the      Battery       or    Excessive          Force    counts      as       to   any    of

Appellants,       the    County       is   also      not     liable         pursuant        to    the

Maryland        constitutional         count        on     the     theory         of     vicarious

liability.        See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir.

1999);   supra      note    5    and    accompanying             text.       And       second,     it

logically follows that because the district court did not err

under de novo review in granting summary judgment to Officer

Adey, Officer Lowery, and the County, the district court also

did not abuse its discretion by denying Appellants’ Rule 59(e)

motion to alter or amend the ruling on summary judgment.




                                                    27
                                     IV.

     For the reasons set forth above, we affirm in part, reverse

in part, and remand for reconsideration of Officer Lowery’s and

Howard   and   Barnett’s   summary    judgment   papers   pursuant   to   a

framework in which bystander liability was properly pleaded.

                                 AFFIRMED IN PART, REVERSED IN PART,
                                      AND REMANDED WITH INSTRUCTIONS




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