                                       UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                        No. 17-1024


GWENNETTA PRATT-MILLER; CURTIS DAWKINS,

            Plaintiffs - Appellants,

             v.

SHERIFF BETH ARTHUR,

            Defendant - Appellee,

             and

COUNTY OF ARLINGTON VIRGINIA; CRAIG PATTERSON, individually
and in his Official Capacity; ARLINGTON COUNTY SHERIFF’S OFFICE,

            Defendants.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:15-cv-00666-LMB-JFA)


Submitted: May 30, 2017                                        Decided: July 3, 2017


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


Affirmed by unpublished per curiam opinion.


Sidney Schupak, LAW OFFICES OF SIDNEY SCHUPAK, LLC, Gaithersburg,
Maryland, for Appellant. Alexander Francuzenko, Broderick C. Dunn, Philip C. Krone,
COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       The Appellants, Gwenetta Pratt-Miller and Curtis Dawkins, filed a complaint

against the Arlington County Sheriff Beth Arthur and former Deputy Sheriff Craig

Patterson, based on Patterson’s conduct in attempting to arrest and fatally shooting the

Appellants’ son. The amended complaint asserted claims pursuant to 42 U.S.C. § 1983

(2012) against Arthur and Patterson in their individual and official capacities and several

claims under state law. The district court initially dismissed the § 1983 claims against

Arthur in her official capacity, and, after allowing limited discovery, granted summary

judgment in favor of Arthur on the remaining claims against her; the Appellants

challenge both these orders on appeal. * For the following reasons, we affirm.

       The Appellants first challenge the district court’s order dismissing their § 1983

claims against Arthur in her official capacity, arguing that Arthur was not entitled to

Eleventh Amendment immunity for those claims. However, at the hearing on Arthur’s

motion to dismiss the complaint, the Appellants explicitly stated that those claims should

be dismissed. The Appellants cannot challenge an action taken by the district court based

on their invitation to take the action. See United States v. Jackson, 124 F.3d 607, 617

(4th Cir. 1997) (“The invited error doctrine recognizes that a court cannot be asked by


       *
          Although the claims against Patterson are still pending in the district court, the
district court certified that the orders involved controlling questions of law as to which
there is substantial ground for difference of opinion and that an immediate appeal from
the orders may materially advance the ultimate termination of the litigation. See 28
U.S.C. § 1292(b) (2012); Fed. R. Civ. P. 54(b). Based on that certification, we granted
the Appellants’ petition for appeal. See 28 U.S.C. § 1292(b); Fed. R. App. P. 5.


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counsel to take a step in a case and later be convicted of error, because it has complied

with such request.” (internal quotation marks omitted)).

       The Appellants also challenge the district court’s order granting summary

judgment in favor of Arthur on their remaining claims, asserting that Arthur was liable

under § 1983 based on municipal liability and supervisory liability, and liable for the

state law claims based on respondeat superior. “Section 1983 provides that every person,

who, under color of state law causes the violation of another’s federal rights shall be

liable to the party injured by his conduct.” Owens v. Balt. City State’s Attorneys Office,

767 F.3d 379, 402 (4th Cir. 2014) (internal quotation marks omitted). “Local governing

bodies [] can be sued directly under § 1983 for monetary, declaratory, or injunctive relief

where [] the action that is alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and promulgated by that

body’s officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A plaintiff

can make such a showing by demonstrating (1) an express or written policy, (2) the

decisions of a person with policymaking authority, (3) a failure to properly train officers

demonstrating a deliberate indifference to citizens’ rights, or (4) a practice that is so

persistent it constitutes a custom or usage with the force of law. Lytle v. Doyle, 326 F.3d

463, 471 (4th Cir. 2003).

       With respect to the issue of municipal liability, the Appellants contend that Arthur

was the final policymaker for the Arlington County Sheriff’s Office and that she failed to

properly train her deputies. However, there is a distinction between § 1983 claims

against a public official in her individual capacity and such claims against her in her

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official capacity.   “Personal-capacity suits seek to impose personal liability upon a

government official for actions [she] takes under color of state law.”           Kentucky v.

Graham, 473 U.S. 159, 165 (1985).          “Official-capacity suits, in contrast, generally

represent only another way of pleading an action against an entity of which an officer is

an agent.” Id. (internal quotation marks omitted). For the former claims, a plaintiff must

show that the official acting under color of state law caused the deprivation of a federal

right; for the latter type of claim, however, a governmental entity is only liable if a policy

or custom of that entity played a part in the violation of federal law. Id. at 166. A court

may also hold a public official liable for the acts of her subordinates under § 1983 if the

plaintiff demonstrates supervisory liability, which is based on a supervisor’s indifference

or tacit authorization of a subordinate’s misconduct. Shaw v. Stroud, 13 F.3d 791, 798

(4th Cir. 1994).

       With respect to the Appellants’ assertion of municipal liability, the Appellants’

contention that Arthur is a policymaker for the Arlington County Sheriff’s Office “does

not quite capture the relevant issue here.” Mikkelsen v. DeWitt, 141 F. App’x 88, 90 (4th

Cir. 2005) (No. 04-2151) (argued but unpublished). Whether a public entity has adopted

an unconstitutional policy is relevant only when examining the basis for municipal

liability under § 1983. Id. at 90-91. This is, however, “not the right question to ask when

confronting a supervisor’s potential liability in [her] individual capacity.” Id. at 91.

Rather, where the only remaining claims are against a public official in her individual

capacity, to hold the official liable for her subordinate’s conduct, that “conduct must meet

the test for supervisory liability.” Id. (internal quotation marks omitted). Here, as the

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only remaining § 1983 claims pending against Arthur at the time the court granted

summary judgment were against Arthur in her individual capacity, she could only be held

liable for Patterson’s conduct if that conduct met the test for supervisory liability.

       In order to establish supervisory liability under § 1983, a plaintiff must show

       (1) that the supervisor had actual or constructive knowledge that [her]
       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, 13 F.3d at 799 (internal quotation marks omitted). To satisfy the first element, a

plaintiff must establish “(1) the supervisor’s knowledge of (2) conduct engaged in by a

subordinate (3) where the conduct poses a pervasive and unreasonable risk of

constitutional injury to the plaintiff.” Id. To demonstrate that a risk is pervasive and

unreasonable “requires evidence that the conduct is widespread, or at least has been used

on several different occasions and that the conduct engaged in by the subordinate poses

an unreasonable risk of harm of constitutional injury.” Id. In addition, a “plaintiff

assumes a heavy burden of proof in establishing deliberate indifference,” and must

demonstrate a supervisor’s continued inaction in the face of documented and widespread

abuses. Id. We have thoroughly reviewed the record and conclude that the district court

did not err in granting summary judgment in favor of Arthur on the Appellants’ § 1983

claims against her in her individual capacity.




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      The Appellants also challenge the district court’s grant of summary judgment for

Arthur on their state law claims. “[P]ursuant to the doctrine of respondeat superior, an

employer is liable for the tortious acts of its employee if the employee was performing

his employer’s business and acting within the scope of his employment when the tortious

acts were committed.” Plummer v. Center Psychiatrists, Ltd., 476 S.E.2d 172, 173 (Va.

1996). After an employer-employee relationship has been established, the defendant

bears the burden of demonstrating that the employee was not acting within the scope of

his employment when he committed the act complained of, and any doubt based on the

evidence must be resolved by a jury. Id. at 174.

      Generally, an act is within the scope of the employment if (1) it was
      expressly or impliedly directed by the employer, or is naturally incident to
      the business, and (2) it was performed, although mistakenly or
      ill-advisedly, with the intent to further the employer’s interest, or from
      some impulse or emotion that was the natural consequence of an attempt to
      do the employer's business, and did not arise wholly from some external,
      independent, and personal motive on the part of the employee to do the act
      upon his own account.

Kensington Assocs. v. West, 362 S.E.2d 900, 901 (Va. 1987) (internal quotation marks

omitted). “[T]he issue is whether the service itself, in which the tortious act was done,

was within the ordinary course of” the business. Gina Chin & Assocs. v. First Union

Bank, 537 S.E.2d 573, 578 (Va. 2000) (internal quotation marks omitted). Our review of

the record leads us to conclude that the district court did not err in finding that Arthur

demonstrated that Patterson was not acting within the scope of his employment when the

act complained of took place.




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       Finally, the Appellants assert that the district court abused its discretion in

allowing only limited discovery prior to granting summary judgment for Arthur. We

review for abuse of discretion the district court’s refusal to allow a party an opportunity

to engage in further discovery prior to the entry of summary judgment. Harrods Ltd. v.

Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002). Based on our review of

the record and the relevant legal authorities, we discern no abuse of discretion in the

district court’s actions.

       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 in the decisional process.



                                                                              AFFIRMED




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