                                                                 [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                         NOV 15, 2006
                                      No. 05-17037
                                                                     THOMAS K. KAHN
                                                                         CLERK
                          D. C. Docket No. 04-00757 CV-F-N

KENNETH SANDERS, SR.,
TINA SANDERS, et al.,
                                                         Plaintiffs-Appellants,

                                          versus

CITY OF UNION SPRINGS,
as a person under 42 U.S.C. § 1983,
E.L. LOVE, Chief, individually and in his official capacity as
Chief of Police, et al.,

                                                         Defendants-Appellees.



                     Appeal from the United States District Court
                         for the Middle District of Alabama


                                  (November 15, 2006)

Before ANDERSON and DUBINA, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:

       *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
      Appellants Sabrina Kendrick, as mother and next friend of L.C., deceased,

Kenneth Sanders, Sr., Tina Sanders, and Kenneth Sanders, Jr. (collectively the

“plaintiffs”), appeal the district court’s order granting summary judgment in favor

of Appellees, the City of Union Springs, Alabama (the “City”), Kenneth Johnson

(“Officer Johnson”), and E.L. Love (“Police Chief Love”) (collectively referred to

as “defendants”), on plaintiffs’ 42 U.S.C. § 1983 claims of excessive force,

negligent failure to train and supervise regarding high speed pursuits, negligent

use of firearms, negligent failure to train and supervise regarding the use of

firearms,1 and failure to intervene. After a thorough review of the record, and

having the benefit of the parties’ briefs and oral argument, we affirm the district

court’s grant of summary judgment.

                                       I. BACKGROUND

      Officer Johnson and Officer Frank Walker (“Officer Walker”) set up a

driver’s license checkpoint on Thomas Street in Union Springs, Alabama. A red

Honda CRX turned onto Thomas Street and slid to a stop. The driver shielded his

face and turned into a driveway about 100 to 250 feet from the checkpoint.

Officer Walker motioned the driver to continue through the checkpoint, but the

driver backed out and sped away. Officer Walker and Officer Johnson chased


      1
          Plaintiffs moved to dismiss this claim, which was granted by the district court.

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after him in their police cars, but Officer Walker and the Honda sped out of

Officer Johnson’s sight. Officer Walker followed the car onto a dead-end street

and attempted a road block; he got out of his car, and the driver drove straight at

him, forcing him to jump on the hood of his police car to avoid being hit. At this

point, Officer Walker gave up the chase. He did not file a written report, but he

told Officer Johnson and Police Chief Love about the incident.

      A week later, Officer Johnson was on patrol when Desmond Kendrick

(“Kendrick”) passed by him in what appeared to be the same red Honda CRX.

Kendrick covered his face as he drove by, just like the driver in the chase the week

before. Unbeknownst to Officer Johnson, Sabrina Kendrick’s two year old

daughter, L.C., was in the passenger seat of Kendrick’s car. Officer Johnson

turned on his car’s emergency lights and siren, and Kendrick fled. Officer

Johnson chased after him and radioed into dispatch that he was in pursuit of a

fleeing automobile. Kendrick threw an unidentified object out of the window that

the police never recovered. Officer Johnson called in the tag number, which

showed it was registered as a 1986 4-door Toyota Corolla that had been recently

burglarized.

      During the chase, Kendrick ran stop signs, almost hit a school bus, and ran a

couple of cars off the road. He fled the Union Springs police jurisdiction into the

                                          3
jurisdiction of the Bullock County Sheriff’s Department. The Sheriff’s

Department set up two road blocks, but Kendrick avoided them and almost hit a

deputy with his car. Police Chief Love heard about the chase through dispatch.

He drove towards the chase keeping in touch through dispatch but, due to radio

defects, he was unable to contact Officer Johnson directly and had trouble hearing

his transmissions.

      During the chase, Kendrick wrecked with another vehicle. According to

witnesses, Kendrick crossed over into the oncoming lane of traffic and struck a

vehicle occupied by the Sanderses. The Sanderses were seriously injured in the

crash. Kendrick and L.C. died as a result of the wreck. The plaintiffs allege that

Officer Johnson fired his gun at the Honda CRX during the pursuit. However,

Officer Johnson testified that he never fired his gun, and the only evidence that a

gun may have been fired is an undated small round hole in the rear of Kendrick’s

red Honda CRX, and testimony that Kendrick may have been slumped over the

steering wheel prior to the collision.

      The district court consolidated complaints filed by the Sanderses and

Sabrina Kendrick for discovery purposes and entered a uniform scheduling order

with no objection by the parties. All named defendants filed motions for summary

judgment in conformity with the scheduling order, which the plaintiffs opposed.

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The court awarded a significant extension of time for the plaintiffs’ submission of

materials and briefs in opposition to defendants’ motions for summary judgment.

Nevertheless, more than six weeks after the extended deadline, the plaintiffs

sought to supplement the evidence submitted in opposition to the motions for

summary judgment. The district court denied their request because they failed to

show good cause for the delay.

      After consideration of the merits, the district court entered summary

judgment in favor of the defendants on all the plaintiffs’ federal claims and

declined to exercise supplemental jurisdiction. The plaintiffs then perfected this

appeal.

                                 II. ISSUES

      The plaintiffs present the following issues for appellate review: (1) whether

the district court abused its discretion by striking their supplementary evidentiary

submissions; (2) whether Officer Johnson’s pursuit of Kendrick resulted in a

Fourth Amendment seizure of L.C.; (3) whether the pursuit violated the plaintiffs’

substantive due process rights under the Fourteenth Amendment; (4) whether

Police Chief Love’s failure to intervene in the pursuit violated the plaintiffs’

constitutional rights; and (5) whether Police Chief Love and the City are liable for

failure to train or supervise Officer Johnson.

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                          III. STANDARDS OF REVIEW

      We review a district court order striking evidentiary material for abuse of

discretion and will reverse the district court only in cases where substantial

prejudice exists. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1259 (11th Cir.

2004). Under the abuse of discretion standard, our review is limited. We give the

court “considerably more leeway than if we were reviewing the decision de novo.”

Young v. City of Palm Bay, 358 F.3d 859, 863 (11th Cir. 2004) (citation omitted).

      We review de novo a district court’s order entering summary judgment,

viewing the facts in the light most favorable to the nonmoving party. Id. at 860.

Summary judgment is appropriate only when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). When the record, taken as a whole, could not lead a rational trier of fact

to find for the nonmoving party, there is no genuine issue of material fact. Allen v.

Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997).

                                 IV. DISCUSSION

      A. Plaintiffs’ untimely supplementary evidentiary submission

      The district court ordered the plaintiffs to file their briefs and evidentiary

materials in opposition to the defendants’ motions for summary judgment on or

before August 8, 2005. At the plaintiffs’ request, the court granted them a

                                          6
submission deadline extension until August 22, 2005. They timely filed their

relevant briefs and evidentiary materials. On October 6, 2005, the plaintiffs filed a

motion for leave to supplement their evidentiary materials in opposition to

defendants’ motions for summary judgment. The plaintiffs asked the court to

consider additional affidavits provided by witnesses of the pursuit and accident.

The plaintiffs offered the affidavits as evidence purporting to rebut Officer

Johnson’s claim that Kendrick was out of his sight at the time of the accident, as

evidence that a bullet size hole was observed in the rear of the Honda immediately

after the collision, and to contradict Officer Johnson’s contention that he aided the

dead and injured.

      After reviewing the record, we conclude that the district court did not abuse

its discretion in striking the plaintiffs’ tardy evidentiary materials. The plaintiffs

were aware as early as September 2004, that the scheduling order required the

parties to file motions for summary judgment by July 22, 2005. A district court

must be able to enforce its scheduling deadlines in order to effectively maintain

control over its docket. Young, 358 F.3d at 864. The plaintiffs in no way

explained their failure to obtain the supplementary affidavits before the summary

judgment deadline and did not show good cause for their motion. Under the




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circumstances, we conclude that the district court’s enforcement of its scheduling

deadline was not an abuse of discretion.

      B. Fourth Amendment - Unreasonable Seizure

      Sabrina Kendrick alleges that Officer Johnson used excessive force in

violation of L.C.’s Fourth Amendment right to be free from unreasonable searches

and seizures. To assert a Fourth Amendment claim for excessive force, there must

have been a seizure, and the force used to effect the seizure must have been

unreasonable. Troupe v. Sarasota County, 419 F.3d 1160, 1166 (11th Cir. 2005),

cert. denied, 126 S. Ct. 1914 (2006).

      A police pursuit in attempting to seize a person does not amount to a

“seizure” within the meaning of the Fourth Amendment. California v. Hodari D.,

499 U.S. 621, 626, 111 S. Ct. 1547, 1550-51 (1991). A Fourth Amendment

seizure occurs only when there is “a governmental termination of freedom of

movement through means intentionally applied.” Brower v. County of Inyo, 489

U.S. 593, 597, 109 S. Ct. 1378, 1381 (1989) (explaining that an officer’s show of

authority represented by flashing lights and continuing pursuit does not result in a

seizure of a fleeing subject when the suspect is stopped by different means, such

as the loss of control of his vehicle or a subsequent crash). See also County of

Sacremento v. Lewis, 523 U.S. 833, 844, 118 S. Ct. 1708, 1715 (1998) (holding

                                           8
that a passenger on a fleeing motorcycle was not seized when the motorcycle

tipped over during a high speed chase and the police car skidded into the

passenger, causing his death). Thus, in order to establish a seizure, the object of

the seizure must be stopped by the very instrumentality set in motion to effect the

seizure. Brower, 489 U.S. at 599, 109 S. Ct. at 1382.

      L.C. was not seized, as defined by the Fourth Amendment. The red Honda

stopped when it collided with the Sanderses’ car. Officer Johnson did not

intentionally terminate L.C.’s freedom of movement. Sabrina Kendrick claims

that Officer Johnson seized L.C. by firing his gun into the fleeing Honda, but the

record evidence does not support her claim. There was no evidence presented to

the district court that the hole in the Honda was a bullet hole or that it was made

during the pursuit. Moreover, there was no evidence presented demonstrating that

Kendrick or L.C. was hit by a bullet. Therefore, a reasonable jury could not

conclude that Officer Johnson fired a gun into the car thereby seizing L.C.

      Furthermore, only intervention directed at a specific individual furnishes the

basis for a Fourth Amendment claim. Troupe, 419 F.3d 1166-67. The undisputed

evidence is that Officer Johnson pursued the Honda in order to arrest Kendrick

and was not even aware that L.C. was in Kendrick’s car. Even if Officer Johnson

knew L.C. was in the car, however, “stopping a vehicle’s driver does not

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constitute a seizure of a passenger.” Id. at 1167. Simply put, L.C. was not the

object of Officer Johnson’s pursuit and could not have been seized under the

Fourth Amendment.

      Sabrina Kendrick argues that Vaughan v. Cox, 343 F.3d 1323 (11th Cir.

2003) supports her claim. However, Vaughan’s distinctions support the

conclusion that L.C. was not seized under the Fourth Amendment. In Vaughan,

the sheriff’s department received a report of a stolen red pickup truck with a silver

tool box in its bed. Id. at 1325-26. Deputies spotted a truck matching the

description of the stolen vehicle, and the passenger matched the description of the

suspected thief. Id. While in pursuit, the deputies shot at the truck to disable it

and, as a result, wounded the passenger. Id. The court determined that the

passenger was seized because the deputy intended to stop the passenger, and the

very instrumentality set in motion to stop him, the bullet, actually struck him. Id.

at 1329. In the present case, L.C. was not the object of the pursuit, and there is no

evidence that either L.C. or Kendrick was seized “through means intentionally

applied.” Brower, 489 U.S. at 597.

      In the absence of a seizure, there cannot be a Fourth Amendment claim of

unreasonable force. Therefore, we conclude that the district court correctly




                                          10
granted summary judgment on Sabrina Kendrick’s excessive force claim brought

under 42 U.S.C. § 1983.

      C. Fourteenth Amendment - Due Process

      The plaintiffs claim that Officer Johnson pursued Kendrick with malice and

that the subsequent wreck violated their substantive due process rights. The

Supreme Court has held that “the substantive component of the Due Process

Clause is violated by executive action only when it ‘can properly be characterized

as arbitrary, or conscience shocking, in a constitutional sense.’” Lewis, 523 U.S.

at 847, 118 S. Ct. at 1717 (quoting Collins v. Harker Heights, 503 U.S. 115, 128,

112 S. Ct. 1061, 1070 (1992)). In the context of high-speed chases, “only a

purpose to cause harm unrelated to the legitimate object of arrest will satisfy the

element of arbitrary conduct shocking to the conscience, necessary for a due

process violation.” Id. at 836, 118 S. Ct. at 1711-12. Thus, “high-speed chases

with no intent to harm suspects physically or to worsen their legal plight do not

give rise to liability under the Fourteenth Amendment, redressible by an action

under § 1983.” Id. at 854, 118 S. Ct. at 1720.

      The evidence establishes that Officer Johnson pursued Kendrick in order to

arrest him and not with an intent to cause harm. Officer Johnson initiated the

pursuit of Kendrick because it appeared to him that he had eluded the City’s police

                                         11
force a week earlier after attempting to hit Officer Walker. Officer Johnson

maintained the pursuit because Kendrick recklessly fled arrest.

      Additionally, Officer Johnson’s decision to pursue Kendrick was made “in

haste, under pressure, and ... without the luxury of a second chance.” Id. at 853,

118 S. Ct. at 1720 (citation ommitted); cf. Graham v. Connor, 490 U.S. 386, 396-

97, 109 S. Ct. 1865, 1872 (1989) (“The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split-second

judgments in circumstances that are tense, uncertain, and rapidly evolving....”).

Accordingly, a higher standard of fault is required to establish liability. The

plaintiffs failed to prove that Officer Johnson acted with an intent to cause harm to

Kendrick unrelated to the legitimate pursuit of a fleeing suspect; therefore, we

conclude that the plaintiffs’ substantive due process claim fails.

      D. Failure to Intervene

      The plaintiffs claim that Police Chief Love is liable for failing to intervene

in the pursuit of Kendrick’s vehicle. “If a police officer, whether supervisory or

not, fails or refuses to intervene when a constitutional violation ... takes place in

his presence, the officer is directly liable under Section 1983.” Byrd v. Clark, 783

F.2d 1002, 1007 (11th Cir. 1986); see also, e.g., Priester v. City of Rivieria Beach,



                                          12
208 F.3d 919, 924 (11th Cir. 2000) (recognizing that an officer can be liable for

failing to intervene when another officer uses excessive force). However, given

that the plaintiffs are unable to establish a constitutional violation, their claim for

failure to intervene must fail. Therefore, we conclude that the district court

properly granted summary judgment on this claim.

      E. Failure to Train or Supervise

      The plaintiffs claim that the City and Police Chief Love did not adequately

train Officer Johnson in highspeed pursuits and this failure caused a violation of

their constitutional rights. However, we will only inquire into a governmental

entity’s custom or policy when a constitutional deprivation has occurred. Rooney

v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996). See also Vineyard v. County of

Murray, 990 F.2d 1207, 1211 (11th Cir. 1993) ( “Only when it is clear that a

violation of specific rights has occurred can the question of § 1983 municipal

liability for the injury arise.”). Again, because plaintiffs are unable to establish a

constitutional violation, they are unable to maintain a § 1983 action for failure to

train or supervise the City’s officers in high-speed pursuits.

                                  V. CONCLUSION




                                           13
      For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of the defendants.

      AFFIRMED.




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