                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 11-1601


JOHN COOK, III, Individually, and as Administrator for the
Estate of John Gideon Cook, IV; PATRICIA COOK; LINDA
HAMMOND, parent and Guardian Ad Litem for Minor J.A.C.;
DENISE BROWN, parent and Guardian Ad Litem for Minor J.C.,

                 Plaintiffs - Appellants,

           v.

RAYMOND A. HOWARD, police officer (ID#C646); DWAYNE GREEN,
police officer (ID#G716); BALTIMORE POLICE DEPARTMENT;
FREDERICK H. BEALEFELD, Commissioner, Baltimore City Police
Department; JOHN BEVILAQUA, Colonel,

                 Defendants - Appellees,

           and

CITY OF BALTIMORE; JOHN DOES 1-100,

                 Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:10-cv-00332-JFM)


Argued:   May 16, 2012                       Decided:    August 24, 2012


Before AGEE and     DIAZ,   Circuit   Judges,   and     HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion. Judge Diaz wrote an
opinion dissenting in part and concurring in part.
ARGUED: Olugbenga   Olatokumbo Abiona, Philadelphia, Pennsylvania,
for Appellants.     William Rowe Phelan, Jr., Glenn Todd Marrow,
BALTIMORE  CITY     LAW   DEPARTMENT,  Baltimore,   Maryland,  for
Appellees.    ON    BRIEF: George A. Nilson, City Solicitor,
BALTIMORE  CITY     LAW   DEPARTMENT,  Baltimore,   Maryland,  for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

       John Cook, III, individually and as administrator of the

estate of John Cook, IV (“Cook”), and various members of the

Cook       family    (collectively         “the   Appellants”),    appeal      from   the

district court’s judgment against them on their claims against

the Baltimore City Police Department (“BCPD”) and several BCPD

officers. 1         The Appellants alleged claims pursuant to 42 U.S.C.

§§ 1983 and 1985 for violations of the Fourth and Fourteenth

Amendments          arising      from   Cook’s    death.    They    also    sought     to

recover       damages         under   Maryland’s     wrongful    death   and   survival

statutes.           The       Appellants    appeal    numerous    decisions     of    the

district court that resulted in the adjudication of all of their

claims in favor of the BCPD and the BCPD officers.                              For the

following reasons, we affirm the judgment of the district court.



                    I.    Facts and Relevant Proceedings Below

                         A.    Preliminary Factual Allegations

       The light in which we review the facts varies based on the

stage of the proceedings at which the claims were resolved.                           For

claims dismissed at the motion to dismiss stage, we must accept

as true the well-pled facts in the complaint, viewed in the

       1
       The Appellants consist of Cook’s mother and father (John
Cook, III) as well as the mothers of Cook’s two minor children
(as parents and guardians ad litem for those children) and
Cook’s Estate.


                                              3
light most favorable to the plaintiff.                           Brockington v. Boykins,

637 F.3d 503, 505 (4th Cir. 2011).                      For the claims resolved at

the summary judgment stage, we review the entire record before

us     in    the    light    most       favorable       to       the    non-moving     party.

Merchant v. Bauer, 677 F.3d 656, 658 n.1 (4th Cir. 2012).

       A      straight-forward            recitation             of     the        Appellants’

allegations is complicated by changes made to those allegations

as the case proceeded.              Those changes alter which defendant or

third party is purported to have engaged in certain conduct.                               At

times the allegations directly contradict each other.                                Far more

troubling, the Appellants persist in asserting facts and conduct

that       lack    any    basis    in     the       record       or    that   are     directly

contradicted        by    undisputed       evidence         in    the    record      developed

during      discovery.        To    say    that       the    operative        pleading    (the

amended complaint) and the opening brief are poorly drafted is

to be generous.           Consequently, we will initially provide only a

brief overview of the factual allegations behind the Appellants’

claims.

       The allegations as pled are: On the afternoon of August 14,

2007, Cook, an African-American, came into proximity of two BCPD

plain-clothed        officers       who    were       on     patrol      in    a    Baltimore

neighborhood.            As the officers approached Cook, they did not

identify themselves, and Cook, “[a]fraid for his life,” fled on

foot.       (J.A. 76.)      The officers pursued him.                   During the course

                                                4
of the foot pursuit and subsequently alleged events, additional

BCPD officers responded to a request for assistance.

       To evade the officers, Cook jumped over a chain-link fence

and hung onto the other side.               The fence runs above a highway,

and the distance from the small concrete ledge at the base of

the fence to the highway is approximately seventy feet.                         One or

more BCPD officers is alleged to have shaken the fence with

sufficient force to cause Cook to lose his grip.                            Cook fell

first to the concrete ledge, which he hung from briefly before

falling onto the highway.              Cook survived the initial impact, but

within moments of landing on the highway, a vehicle ran over

him,   and    he   died     at   the    scene.         After    Cook’s    death,   BCPD

officers at the fence were alleged to have high fived, laughed,

and referred to Cook using the “N” word.                   BCPD officers are then

alleged      to    have   conspired       to     cover     up    the     circumstances

surrounding Cook’s death by, among other things, conducting an

inadequate investigation and filing false reports related to his

death.



                            B.   The Amended Complaint

       In February 2010, the Appellants filed this action in the

District     Court    for    the   District       of     Maryland.        The   amended

complaint (which is the operative pleading for all issues on

appeal)      was    brought      against       the     BCPD;     BCPD    Commissioner

                                           5
Frederick Bealefeld, the highest ranking officer in the BCPD;

BCPD Colonel John Bevilaqua, the Chief of the BCPD detective

division; BCPD Officers Raymond A. Howard and Dwayne Green; and

“Defendants John Does 1-100.” 2              (J.A. 70-71.)

      The amended complaint alleged five counts:                             Counts I and

III set forth claims under 42 U.S.C. §§ 1983 and 1985 against

the   BCPD,     Commissioner        Bealefeld,       and    Colonel      Bevilaqua         for

violations of the Fourth and Fourteenth Amendments with respect

to the events surrounding Cook’s death.                        The amended complaint

asserted      that    the    BCPD      was   liable      for     the   conduct        of   its

officers      and     that       its     customs,        practices,          and     policies

encouraged BCPD officers to violate the constitutional rights of

citizens, including Cook.                Commissioner Bealefeld and Colonel

Bevilaqua (collectively the “supervisory officials”) were sued

under     a    theory       of   supervisory        liability          for     the    events

surrounding Cook’s death.                 Although the amended complaint is

unwieldy      and    difficult      to   parse,     it    also    appears      that    these

defendants, or at least Colonel Bevilaqua, were alleged to have

violated Cook’s constitutional rights by conspiring to cover up

the events surrounding his death.




      2
       Several spellings of “Bevilaqua” and “Bealefeld” appear in
the briefs and record; for consistency, we use the spellings on
the docket sheet.


                                             6
         The amended complaint identified Officers Howard and Green

as the BCPD officers who initially approached Cook; it alleged

that they engaged in an “unlawful” pursuit of Cook and then both

shook        the   fence    such     that       Cook    fell    from    it.        The    amended

complaint          also    alleged       that    Officer    Howard      did    “most      of   the

aggressive hitting of the fence that [Cook] hung on to,” engaged

in    “high-fiving          and    laughing”           following    Cook’s         death,      used

racial        epithets      and    inflammatory          language,      and    engaged       in   a

physical altercation with Officer Howard Bradley because of the

epithets.           Lastly, it asserted Officer Howard “filed a false

incident report and covered up the actual events at the scene,”

and      participated        in      a    conspiracy       to     cover       up   the      events

surrounding Cook’s death.                  (J.A. 77-78.)          Based on these factual

allegations          against      Officers       Howard     and    Green,      Count      II   set

forth claims under 42 U.S.C. §§ 1983 and 1985 for violations of

the      Fourth      and    Fourteenth          Amendments,       and   Counts       IV     and   V

alleged survival and wrongful death actions under Maryland state

law. 3




         3
       As noted, the amended complaint also designated “John Does
1-100” as defendants; however, none of the counts specifically
referred to them.



                                                  7
                                      C.    Proceedings Below

     The       BCPD,       Commissioner          Bealefeld,         and     Colonel       Bevilaqua

moved to dismiss the claims against them (Counts I and III)

under Federal Rule of Civil Procedure 12(b)(6) for failure to

state     a     claim.            The       district        court    granted        the     motion,

concluding          that     the           amended       complaint     did     “not        allege[]

sufficient          facts        to        establish       liability        under     Monell          v.

Department of Social Services, 436 U.S. 658 (1978),” and that

the “conclusory allegations” were “clearly . . . insufficient

under” the standards set by the Supreme Court in Bell Atlantic

Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.

Iqbal, 129 S. Ct. 1937 (2009).                           Lastly, it noted that the “only

facts relating to the alleged conspiracy pertain to events that

occurred       after    [Cook]          was    killed       and    therefore    cannot,          as    a

matter     of       causation,          provide      a     basis     for”    the     Appellants’

claims.       (J.A. 11.)              The district court’s grant of the 12(b)(6)

motion    disposed          of    all       counts       alleged    against     the       BCPD    and

supervisory officers.

     In       the     intervening            months       the     Appellants       and     Officers

Howard and Green engaged in discovery related to Counts II, IV,

and V.        Relevant to this appeal, the district court granted the

BCPD’s motion to quash a request for production of documents

that the Appellants had served after the BCPD had been dismissed

from the case.              The court’s order granted the motion based on

                                                     8
its conclusion that “the documents sought by [the Appellants]

are irrelevant to the claims that are now pending.”                      (J.A. 18.)

      After the scheduling order’s deadline for making a motion

to amend the complaint had passed, the Appellants moved to amend

the   pleadings    in   order    to    “substitute          the     names     of    [BCPD

Officers] Jared Fried and Angela Choi for defendants John Does 1

and 2.”       (J.A. 19.)       The district court denied the motion,

concluding that the Appellants had not demonstrated good cause

for the amendment.

      Officers Howard and Green then moved for summary judgment

on each claim against them.           Upon consideration of the parties’

arguments, the district court granted the motion.                             The court

recognized     remaining     factual       disputes         in    the    record,      but

determined that none were “material” to resolving the issues in

the   case.      Reviewing    the     §§       1983   and    1985    claims        against

Officers Howard and Green, the district court concluded that the

facts did not support the Appellants’ contention that they had

violated either Cook’s or the Appellants’ Fourth or Fourteenth

Amendment rights.       The district court also held that the state

law claims were barred because the Appellants failed to comply

with the notice requirements of Maryland’s Local Government Tort

Claims Act, Md. Code Ann., Cts. & Jud. Proc. Art. § 5-304(a).

      The     Appellants     noted    a        timely   appeal,         and    we    have

jurisdiction under 28 U.S.C. § 1291.

                                           9
                                           II.

      The Appellants raise numerous arguments that can be boiled

down to four central issues, namely, whether the district court:

(1) erred in granting the motion to dismiss Counts I and III

because    the     allegations         in        the     amended    complaint           were

sufficiently pled; (2) abused its discretion in granting the

motion    to    quash   the   request       for     production      of    documents      by

relying on an improper basis for its decision or, alternatively,

by   misapplying    it;     (3)    abused     its      discretion    in    denying      the

motion    to    substitute        Officers       Fried    and   Choi      because       such

motions should be liberally granted and the Appellants had shown

good cause to allow the amendment; and (4) erred in granting the

motion for summary judgment as to Counts II, IV, and V because

there remained numerous genuine issues of material fact for a

jury to resolve and the forecasted evidence was such that a jury

could have found in the Appellants’ favor as to each remaining

claim.

      Having     reviewed     each    of     the    parties’    arguments         and   the

record,    we    conclude     that    the    district       court   did     not    commit

reversible error in this case.               We address below those arguments

warranting further discussion and affirm the judgments of the

district court.




                                            10
            A.    Rule 12(b)(6) Dismissal of Counts I and III

      The Appellants contend the district court erred in granting

the motion to dismiss Counts I and III — the §§ 1983 and 1985

claims     against      the   BCPD,      Commissioner           Bealefeld,       and    Colonel

Bevilaqua — for failure to state a claim.                             They assert that the

district court improperly applied a heightened pleading standard

beyond     what    is    required        under      federal      notice    pleading.           To

advance     their       argument,      the     Appellants         rely    heavily       on    the

Supreme Court’s explanation of those principles in Leatherman v.

Tarrant County Narcotics Intelligence & Coordination Unit, 507

U.S. 163 (1993), and this Court’s decision in Jordan by Jordan

v.   Jackson,      15    F.3d    333     (4th       Cir.   1994).         They    claim       that

dismissal        was    inappropriate           because         the     amended    complaint

sufficiently        alleged      facts        that,        if    proven     with       specific

evidence     following          discovery,          would       show     that     the        BCPD,

Commissioner       Bealefeld,       and       Colonel       Bevilaqua      could       be    held

liable under §§ 1983 and 1985 for the events surrounding Cook’s

death.

      We    review       de     novo     a     district         court’s     Rule       12(b)(6)

dismissal,       “focus[ing]      only        on    the    legal      sufficiency       of    the

complaint,” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

2008),     and    “accepting        as       true    the    well-pled       facts       in    the

complaint and viewing them in the light most favorable to the

plaintiff.”       Brockington, 637 F.3d at 505.

                                               11
       Federal      Rule     of    Civil      Procedure      8(a)(2)       states      that   a

pleading must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.”                           Curiously, the

Appellants make no attempt to demonstrate that it satisfied the

Supreme Court’s explanations of Rule 8(a)(2)’s requirements as

set    forth   in    Twombly       and       Iqbal,    and   which      were    the    primary

grounds upon which the district court relied.                               Instead, they

rely    on    pre-Twombly         and    Iqbal       cases   such    as    Leatherman       and

Jordan.        While    Leatherman           held     that   §   1983     claims      are   not

subject to a heightened pleading standard and Jordan applied

that holding in this Circuit, claims brought in federal court

are also subject to the generally applicable standards set forth

in the Supreme Court’s entire Rule 8(a) jurisprudence, including

Twombly      and    Iqbal.        As    we    have    previously     recognized,         these

later    “decisions         require      more    specificity        from    complaints        in

federal civil cases than was heretofore the case.”                             Robertson v.

Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir. 2012).

       Pursuant to Twombly and Iqbal, a complaint will survive a

motion to dismiss only if it contains factual allegations in

addition to legal conclusions.                        Factual allegations that are

simply “labels and conclusions, and a formulaic recitation of

the elements of a cause of action” are not sufficient.                                Twombly,

550    U.S.    at    555.         In    addition,      the   complaint         must    contain

“enough facts to state a claim to relief that is plausible on

                                                12
its face.”     Id. at 570.        That is to say, the factual allegations

must “be enough to raise a right to relief above the speculative

level.”       Id.    at    555.        Instead,   the    allegations    must   be

sufficient to “permit the court to infer more than the mere

possibility of misconduct” based upon “its judicial experience

and common sense.”         Iqbal, 550 U.S. at 679.            For these reasons,

courts “need not accept the legal conclusions drawn from the

facts [alleged in a complaint], and [they] need not accept as

true     unwarranted      inferences,         unreasonable     conclusions,    or

arguments.”         Giarratano, 521 F.3d at 302 (internal quotation

marks omitted).

       We agree with the district court that the amended complaint

does   not   satisfy      these    requirements.        The   amended   complaint

suffers from a number of infirmities with respect to the claims

against the BCPD.          Most strikingly, it repeatedly sets forth

legal conclusions masquerading as factual allegations.                   Indeed,

at times, the amended complaint misstates what the law is with

respect to Monell and supervisory liability, thus pleading not

only legal conclusions as opposed to fact, but inaccurate legal

conclusions at that.           The district court appropriately did not

credit    those     portions      of   the    amended   complaint.      Just   as

troubling, the amended complaint parrots the language of various

legal theories without stating any facts to demonstrate that

type of conduct.          In so doing, the amended complaint “tenders

                                         13
naked assertions devoid of further factual enhancement,” Iqbal,

556    U.S.   at    678   (internal        quotation     marks,    alterations,      and

citation omitted), and is merely a “[t]hreadbare recital[] of

the elements of a cause of action, supported by mere conclusory

statements,” which are not sufficient to survive a motion to

dismiss.       Id. at 678 (citation omitted).                     Lastly, where the

amended complaint alleges actual facts, those facts are either

irrelevant to establishing a viable § 1983 or 1985 claim, or,

where on point, do not “state[] a plausible claim for relief,”

id. at 679, because they do not “raise a right to relief above

the speculative level.”             Twombly, 550 U.S. at 555.

       With    respect         to    Commissioner        Bealefeld       and    Colonel

Bevilaqua’s        liability        as   supervisory      officers,      the    amended

complaint’s        assertions       boil    down    to   contending     that    because

Cook’s death occurred at a time when they were supervisors of

BCPD     officers,        they       have     imputed       knowledge      of     their

subordinates’ conduct and should be held liable for it.                         Simply

put, the amended complaint does not set forth facts that raise

beyond   the    level     of    speculation        any   claim    of   entitlement   to

relief under § 1983 or 1985 founded on a theory of supervisory




                                            14
liability.      See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)

(stating the three elements to establish supervisory liability). 4

     For the reasons set forth above, we conclude the district

court    did    not    err   in   granting   the   BCPD   and   supervisory

officials’ motion to dismiss the claims against them.



               B.   Motion to Quash and Motion to Substitute

     The Appellants next claim the district court abused its

discretion in granting the BCPD’s motion to quash a request for

production of documents and in denying a motion to substitute

Officers Fried and Choi. 5         See In re Grand Jury Subpoena, 646

F.3d 159, 164 (4th Cir. 2011) (stating standard of review for a


     4
       We also agree with the district court that even accepting
the scant factual allegations of a conspiracy as true, the
amended complaint simply does not set forth a viable cause of
action for a conspiracy to violate Cook’s rights by covering up
the circumstances of his death given that the alleged conspiracy
formed only after Cook died.      Nor did Cook set forth facts
sufficient to survive a motion to dismiss that would support the
conclusion that any such conspiracy was motivated by race.
Thus,    those   allegations    could   not    implicate   Cook’s
constitutional rights or set forth a basis for relief under §
1985 as a matter of law.     See Simmons v. Poe, 47 F.3d 1370,
1376-77 (4th Cir. 1995) (stating the elements of a cause of
action under § 1985(3)).
     5
       The “motion to substitute the names of Jared Fried and
Angela Choi for defendants John Does 1 and 2” sought to do much
more than simply substitute these named parties for John Does.
For this reason, it would more appropriately be termed a motion
to file a second amended complaint and join party defendants.
Nonetheless, the standard of review for each motion is the same;
for consistency, we refer to it as the “motion to substitute.”



                                      15
motion to quash); US Airline Pilots Ass’n v. Awappa, LLC, 615

F.3d 312, 320 (4th Cir. 2010) (stating standard of review for a

motion to amend a complaint).



                              1.     Motion to Quash

       After   the     BCPD   had     been    dismissed        from    the   case,   the

Appellants served it with a request for production of documents.

The request encompassed a range of materials, from all materials

relating to Cook’s death to documents regarding BCPD officer

training procedures, performance monitoring, and allegations of

police misconduct from the general public.                      (J.A. 91-93.)        The

request set a compliance date of October 15. 6                   (J.A. 91-93.)

       The   BCPD    moved    to    quash     the    request     for    production    of

documents, asserting that the vast majority of the documents

requested were only relevant to the dismissed claims against the

BCPD or were not discoverable under state privilege laws.                              It

also       indicated     it    would         “produce      non-privileged,           non-

disciplinary/personnel             related        responsive    documents      in    its

possession, custody, or control that pertain specifically to the

facts and circumstances of the August 14, 2007 incident.”                           (J.A.


       6
        Specifically, the request demanded that the BCPD
“produce[]   for  inspection  and   photocopying  the  documents
described below, at 10:00 a.m., Friday, October 15, 2010, at its
headquarters . . . .” (J.A. 89.)



                                             16
178 n.2.)     Over the Appellants’ objections, the district court

granted     the    motion       to       quash,      stating     that   it      was     “fully

satisfied    that       the   documents         sought      by   [the   Appellants]         are

irrelevant to the claims that are now pending.                             Therefore, the

[BCPD] should not be put to the expense that would be required

to assemble the documents requested by [the Appellants].”                                  (J.A.

18.)

       On appeal, the Appellants contend that the district court

abused its discretion in granting the motion to quash because

the ground relied upon – “relevance” to the underlying claims –

is not a proper basis to quash a subpoena served on a non-party.

They    assert     that       the     BCPD      lacked     “standing       to    tell      [the

Appellants] what documents [they] may use in support of their

claims.”      (Opening          Br.      39.)        And    they    note     that     because

discovery is permitted not only of information that could be

admissible,       but    also       of    information        that    may     lead     to    the

discovery of admissible evidence, the district court abused its

discretion in granting the motion.                         Lastly, they contend that

the documents pertaining to the events of August 14 would have

aided them in discovering the identities of other BCPD officers

who were present at the scene.                  (Opening Br. 38-42.)

       We are not persuaded that the district court abused its

discretion in granting the motion to quash.                             Federal Rule of

Civil Procedure 26 governs discovery and provides as a general

                                                17
matter     that    parties      “may    obtain       discovery     regarding      any

nonprivileged matter that is relevant to any party’s claim or

defense . . . .”        R. 26(b)(1).         Relevance is thus the foundation

for any request for production, regardless of the individual to

whom a request is made.          That the BCPD was no longer a party to

the case did not make relevance of the materials requested an

inappropriate factor for the court to consider.                    See Misc. Dkt.

Matter 1 v. Misc. Dkt. Matter 2, 197 F.3d 922, 925 (8th Cir.

1999) (discussing factors to be considered in discovery against

third parties, including relevance).                  Although Rule 45(c) sets

forth additional grounds on which a subpoena against a third

party may be quashed, taking into consideration facts peculiar

to their status as a non-party, those factors are co-extensive

with    the   general   rules    governing      all    discovery    that    are   set

forth in Rule 26. 7

       District courts are afforded broad discretion with respect

to     discovery    generally,         and    motions    to      quash     subpoenas

specifically.       The overwhelming majority of the materials the

Appellants     sought    were    directed       at    matters    related     to   the

       7
        We further note that Rule 45(c)(3) requires courts to
quash a subpoena that “subjects a person to undue burden”
(45(c)(3)(A)(iv)). This ground encompasses situations where the
subpoena seeks information irrelevant to the case or that would
require a non-party to incur excessive expenditure of time or
money, factors on which the district court’s order expressly
relied.



                                         18
dismissed    claims     against    the    BCPD.       Documents     and   records

containing the BCPD’s training materials, performance reviews,

internal investigation procedures, and all other allegations of

misconduct   for    a   ten-year   period      have   no    correlation   to   the

claims against Officers Howard and Green.                  While the Appellants

assert   that   these    materials       may   have    led    to   discovery   of

admissible evidence, they present no intelligible explanation of

how that is so, nor can we detect any; the requests have every

indicia of the quintessential fishing expedition.

     The materials requested that related to Cook’s death are

more problematic given that they at least had some connection to

the remaining claims in the case.              However, it is not our task

to substitute our judgment for that of the district court, but

rather to assess “whether the [district] court’s exercise of

discretion, considering the law and the facts, was arbitrary or

capricious.”       United States v. Mason, 52 F.3d 1286, 1289 (4th

Cir. 1995) (citation omitted).           As we have previously stated:

     The purpose of standards of review is to focus
     reviewing courts upon their proper role when passing
     on the conduct of other decisionmakers.    Standards of
     review are thus an elemental expression of judicial
     restraint, which, in their deferential varieties
     safeguard   the  superior   vantage  points   of  those
     entrusted with primary decisional responsibility. . .
     . At its immovable core, the abuse of discretion
     standard requires a reviewing court to show enough
     deference to a primary decisionmaker’s judgment that
     the court does not reverse merely because it would
     have come to a different result in the first instance.


                                         19
Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315,

320-21 (4th Cir. 2008).

       Our review necessarily focuses on the information available

to the district court at the time of its decision.                          The totality

of those circumstances leads us to conclude that the court did

not act arbitrarily or capriciously in granting the motion to

quash.         As   detailed      above,        the     Appellants’         request    for

production of documents sought an inordinate array of documents

from a non-party in comparison to a limited number that may have

been    responsive      and    relevant     to    the     remaining     claims.         In

opposing the motion to quash, the Appellants did not request a

modification of the request for production, but persisted at

length    in    their    assertion      that      all    of    the    documents        were

necessary      to   their     case.    Furthermore,           the   BCPD’s    motion     to

quash    conceded       the    discoverability          of     a    small     number     of

documents and voluntarily agreed to provide those documents to

the Appellants.

       As the dissent notes, a district court has the authority to

quash or modify a subpoena duces tecum pursuant to Federal R.

Civil Procedure 45(c)(3).             At no time in opposing the motion to

quash, or even on appeal in this Court, have the Appellants

suggested such an alternative.              Nor did the BCPD recommend such

a course.       The district court decided the matter based on the

positions taken and arguments advanced by each party.                            Such a

                                           20
course is neither arbitrary or capricious.                       That the district

court could also have acted within its discretion by undertaking

a different course of action — i.e., sua sponte modification of

the request rather than outright quashing — does not make its

selected   course     an     abuse   of     discretion.      See    Regan-Touhy      v.

Walgreen Co., 526 F.3d 641, 653 (10th Cir. 2008) (“[W]e cannot

see how the district court abused its considerable discretion in

its   resolution      of    the    parties’      discovery   disputes       given   the

nature of the requests at issue and the state of the record

before the court at the time.”).                    On this record, we cannot

conclude      that    the        district        court   acted     arbitrarily       or

capriciously in granting the motion to quash.



                            2.    Motion to Substitute

      On November 30, the Appellants moved to substitute Officers

Fried   and    Choi    as    party     defendants        “John   Does   1    and    2.”

Attached to the motion was a proposed second amended complaint,

which   contained      the       desired    “substitutions.”         The     proposed

second amended complaint identifies Officers Fried and Choi as

the BCPD officers who initially approached and pursued Cook; it

alleges that Officer Green thereafter joined the foot pursuit,

and that Officers Fried and Green took turns hitting the fence

prior to Cook’s fall.             And it alleges that Officers Fried and

Choi were “high-fiving and laughing” after Cook’s death, and

                                            21
that       Officer   Bradley    engaged      in   a   physical    altercation     with

Officer Fried.            In sum, the Appellants now alleged that Officer

Green participated in some — but not as much — of the conduct

allegedly preceding Cook’s death, while Officer Howard was no

longer alleged to have been present during any of those events.

The    only    remaining      claim   against     Officer   Howard      was   that    he

participated in a post-death conspiracy to cover up the other

BCPD officers’ misconduct by filing a false report. 8

       The district court denied the motion to substitute.                     At the

outset, the court noted that the motion was filed seven weeks

after the October 12 deadline set in the scheduling order for

amending       the   pleadings      and     joining    parties,    and    under      the

language of the scheduling order, could only be granted upon a

showing       of   good    cause.     The    court    rejected    the    Appellants’

contention that they had demonstrated good cause based on its

determination that the Appellants “ha[d] no one but themselves

to blame for the untimeliness” in light of the length of time

between the August 14, 2007 incident and the October 12, 2010

amendment deadline and long periods of inaction during which


       8
       Based on these changed factual allegations, the proposed
second amended complaint adds Officers Fried and Choi to the
Count II §§ 1983 and 1985 causes of action based on deprivations
of Fourth and Fourteenth Amendment rights.        It also adds
Officers Fried and Choi to and removes Officer Howard from the
state law claims asserted in Counts IV and V.



                                            22
they   could    have   learned   the    officers’     identities   before    the

deadline or preserved the opportunity to do so by requesting a

later amendment deadline before that deadline expired.                      (J.A.

20.)

       The    Appellants     assert    the    district   court     abused    its

discretion in denying the motion to substitute.                  They maintain

both that Federal Rule of Civil Procedure 15(a) “evinces a bias

in favor of granting leave to amend” that the district court

ignored and that they have shown good cause for not meeting the

amendment deadline.          They also challenge the district court’s

factual      determination    that     they   could    have   discovered      the

identities and pertinent role of Officers Fried and Choi prior

to the October 12 deadline for amending the complaint.

       We have thoroughly reviewed the record with respect to the

timing and implications of the relevant events, and conclude

that the district court did not abuse its discretion in denying

the motion to substitute.         To the extent the Appellants contend

the district court held them to a higher bar for amendment than

Rule 15 provides, they fundamentally misunderstand the standard

by which their motion was reviewed.            Rule 15(a)(2) articulates a

relatively liberal amendment policy, in which leave to amend

should be “freely give[n] when justice so requires.”                 That rule

applies, however, prior to the entry of a scheduling order, at

which point, under Rule 16(b)(4), a party must first demonstrate

                                        23
“good cause” to modify the scheduling order deadlines, before

also satisfying the Rule 15(a)(2) standard for amendment.                                   See

Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298-99 (4th Cir.

2008); see also O’Connell v. Hyatt Hotels of Puerto Rico, 357

F.3d 152, 155 (1st Cir. 2004) (describing the interplay between

these rules).      Even apart from the federal rules, the scheduling

order in this case specifically stated that “good cause” would

be   required    to    amend       the    pleadings      at       any   point     after     the

October 12 deadline.              The district court thus appropriately held

the Appellants to the “good cause” standard.

      We also conclude that the district court did not abuse its

discretion in finding that the Appellants had not demonstrated

“good   cause”     for      the    untimely         motion    to    substitute.            “Good

cause” requires “the party seeking relief [to] show that the

deadlines    cannot         reasonably          be     met        despite     the     party’s

diligence,” and whatever other factors are also considered, “the

good-cause   standard         will       not   be    satisfied       if     the   [district]

court concludes that the party seeking relief (or that party’s

attorney)    has      not    acted       diligently          in    compliance       with    the

schedule.”       See 6A Charles Alan Wright, Arthur R. Miller, and

Mary Kay Kane, Federal Practice and Procedure Civ. 3d § 1522.2

(3d ed. 2010) (collecting cases); see also 3 Moore’s Federal

Practice § 15.14[1][b], at 16-72 (Matthew Bender 3d ed. 2010)

(“[A]lthough undoubtedly there are differences of views among

                                               24
district       judges     about    how    compelling        a   showing        must    be   to

justify extending the deadlines set in scheduling orders, it

seems clear that the factor on which courts are most likely to

focus when making this determination is the relative diligence

of the lawyer or lawyers who seek the change.”).                               Each of the

Appellants’ arguments as to why good cause exists rings hollow

in light of the record before us.                   That record provides an ample

basis    from    which     the    district      court      could    conclude      that      the

Appellants had not been diligent in pursuing the identities of

additional BCPD officers they believed to be part of the alleged

events surrounding Cook’s death.

        Contrary to the Appellants’ assertion and the conclusion

reached by the dissenting opinion, the district court’s earlier

grant    of    the   motion       to   quash    the      request   for    production        of

documents did not directly bring about the Appellants’ inability

to timely acquire information about Officers Fried and Choi’s

alleged presence and participation in the events of August 14.

This     is    so,   in    part,       because      the    request       for    production

intentionally listed a compliance date of October 15, three days

past    the    October     12    amendment      deadline.          The   record       clearly

shows    the    Appellants        were   aware      of    the   proposed       October      12

deadline when they set the October 15 return date.                              Yet during

the scheduling order conference, the Appellants did not request

a later amendment deadline in order to allow time to review any

                                               25
materials     they       received   in     response       to      the   request     for

production.        Thus, even if the motion to quash had been denied

in full or in part, the Appellants still would not have required

the BCPD to produce the requested materials before the amendment

deadline. 9

      Moreover, at no time after the motion to quash had been

granted did the Appellants make a timely motion to amend the

scheduling order deadline. 10            This is so despite the scheduling

order’s     clear       directive   that        deadlines      would    be   strictly

enforced and altered only if “good cause” had been shown.                          The

Appellants have offered absolutely no explanation for why they

did   not   file    a    timely   motion    to    amend     the    scheduling     order


      9
        The district court did not rely on the length of time
between the amendment deadline and the filing of the motion to
substitute (a seven-week gap) as a factor in determining whether
the Appellants had demonstrated good cause.        Instead, the
district court relied on the significant amount of time between
the August 14, 2007 incident and the filing of the motion, as
well as the Appellants’ failure to diligently pursue the matter
between the February 2010 filing of the case and the filing of
the motion to substitute.    The district court’s stated reasons
for holding the Appellants responsible for the delay and finding
they lacked diligence would not appear to have altered
significantly had the district court received an untimely, but
less untimely, motion to substitute and amend in the event the
motion to quash had been denied. See also infra at pp. 33-35.
     10
         Although the Appellants eventually moved to amend the
scheduling order deadline, they did so after moving to
substitute Officers Fried and Choi, and only once the issue was
raised in Officers Howard and Greens’ response to that motion.
The district court eventually denied that motion for the same
grounds it denied the motion to substitute.



                                           26
deadline once it became clear that sufficient discovery would

not be completed in time to meet the October 12 deadline. 11

       Lastly, the record shows an overall lack of diligence on

the    Appellants’          part,    which    the   district    court       appropriately

relied on in making its decision.                    As the district court noted,

the Appellants did not file this case until approximately two-

and-a-half years after the events in question.                        The initial and

amended complaints expressly contemplated the addition of other

BCPD   officers        as    party    defendants      based    on   the     inclusion    of

defendants “John Does 1-100,” and the reference to other unnamed

BCPD        officers    throughout           the    description       of     the   events

underlying the Appellants’ claims.                     For the almost-seven-month

period       between    filing       suit    and    first   seeking     a    request    for

production, the Appellants made no effort whatsoever to pursue

limited discovery to identify any other BCPD officers who may

have participated in any of the alleged events. 12




       11
        When expressly asked about this point during oral
argument, the Appellants’ attorney noted only that he did not
know at the time the scheduling order deadlines were set whether
he would need more time.     He offered no explanation for his
failure to seek a timely modification in light of subsequent
events and the approach of the amendment deadline.
       12
       Contrary to the Appellants’ protestations that they could
not undertake discovery until after the scheduling order was
filed, the local rules permit discovery at an earlier time as
“ordered by the court or agreed upon by the parties.”      Local
Rule 104.4.


                                              27
       The failure to pursue limited discovery for this purpose

was not attributable to the Appellants not knowing the identity

of individuals who had relevant information.                      The record shows

that    at   the    time    they   filed     suit,    the   Appellants     knew   the

identities     of    at    least   five     individuals     who    had   information

relevant     to    the    events   of   August   14:     BCPD     Officers   Howard,

Green, and Bradley; BCPD supervisory officer Colonel Bevilaqua;

and eyewitness Shamika Summers. 13                   These facts underscore the

Appellants’        lack    of   diligence    throughout     the    proceedings    in

identifying “known unknown” individuals who might be part of

their case.        As the Eleventh Circuit has stated:

       The lack of diligence that precludes a finding of good
       cause is not limited to a plaintiff who has full
       knowledge of the information with which it seeks to

       13
        The Appellants had obtained a copy of Officer Howard’s
accident report as early as October 2007.           That report
identifies Colonel Bevilaqua as the highest ranking officer
present at the scene of the investigation into Cook’s death. It
identifies Officer Green as the police officer who initiated the
foot pursuit with Cook and provides Officer Green’s telephone
number and address.    It also identifies Officer Howard as the
“reporting” officer and includes his address and telephone
number.
     Although it is not clear from the record when the
Appellants   first  learned   of  eyewitness   Shamika  Summers’
knowledge of the incident, the Appellants’ private investigator
took her statement in November 2009, also well before filing
suit. Her statement includes a description of the BCPD Officer
she alleged shook the fence. Although she did not identify him
by name at that time, in her deposition taken after the
expiration of the amendment deadline, she identified Officer
Fried as that officer. This information unequivocally shows the
Appellants had notice of individuals who would have further
details of the incident.


                                           28
       amend its complaint before the deadline passes.   That
       lack of diligence can include a plaintiff’s failure to
       seek the information it needs to determine whether an
       amendment is in order.

See S. Grouts & Mortars v. 3M Co., 575 F.3d 1235, 1241 n.3 (11th

Cir. 2009).

       Despite     the      Appellants       knowing           there     were    as-yet-

unidentified      individuals      involved       in     the    events    they    alleged

occurred on August 14, and despite their expressed desire to

include these “John Doe” police officers as party defendants in

their case, the Appellants did not pursue any discovery that

would   have     allowed    them    to     file    a     timely    amendment        of   the

complaint.        The    Appellants,     and      to    some    degree    the    dissent,

counter that until November 2010 they were not aware that named

party defendants Officer Howard and Green were not the officers

involved in the foot pursuit and that Officers Fried and Choi

were    present     at     that    time.          This    argument       goes    to      the

significance of the amendments they sought to make.                              It does

not,    however,    bear     on    the   lack      of    diligence       in   the     first

instance.

       It is true that Officer Howard’s accident report appears to

have mistakenly named Officer Green as the officer involved in

the initial foot pursuit.            However, nothing in Officer Howard’s

report suggests that the Appellants were correct in asserting

that Officer Howard had been present for or a participant in any


                                           29
of   the   events    leading    up     to    Cook’s   death.       Moreover,   as

discussed, the amended complaint charged additional unknown BCPD

officers with participating in various other key parts of the

claimed unlawful activity.           The Appellants thus clearly believed

other individuals were involved as well and had information that

put them on notice that they may need to amend their complaint

in light of facts revealed during discovery.                   But they did not

pursue any of these “known unknowns” in the case in a manner

that would have permitted them to make a timely amendment.                     On

this record, they cannot now succeed in complaining that their

lack of diligence should be excused because they did not realize

the unidentified individuals in their action would not just be

added to their existing claims but would also alter the nature

of   (if   not   eliminate)    their    claims    with   respect    to   Officers

Howard and Green.

      The record also demonstrates that the Appellants’ failure

to pursue limited – or earlier – discovery mattered for purposes

of identifying Officers Fried and Choi because had that been

pursued, the Appellants almost certainly could have ascertained

their presence and role significantly earlier than they did.

For example, eyewitness Shamika Summers and Officer Bradley both

identified Officer Fried in their depositions.                  Indeed, Officer

Bradley indicated in his deposition testimony that he had met

Cook’s Fiancée, Appellant Hammond, prior to the events of August

                                        30
14,    and   that     he     visited     her     shortly     after       Cook’s     death      to

describe the events of that day to her, including the alleged

participation of Officer Fried. 14                   In addition, Officers Howard

and    Green      both     identified     Officers         Fried   and       Choi   as    being

present      on     August    14    in   their      responses      to    interrogatories.

And,    as   discussed        elsewhere     in      this    opinion,         Officer     Howard

denied being present at the scene until after Cook’s death; had

the    Appellants        questioned      Officer        Howard     for       the   purpose     of

ascertaining his knowledge of other individuals’ roles in the

events leading up to Cook’s death, they would have necessarily

discovered why he could not answer those questions and could

have    timely       pursued       additional       information         to    determine       the

identity       of    the    officers     who     were    actually        involved        in   the

pursuit as well.

       The Appellants’ failure to seek information from any one of

these witnesses at an earlier date meant that they could not

pursue any leads those witnesses provided in time to make a


       14
        The uncontested evidence shows that Hammond knew Officer
Bradley had additional information about who may have been
present and involved in the August 14 incident.     As such, the
Appellants could have deposed him earlier in an effort to
identify additional participants to the events.    Had they done
so, Officer Bradley could have led them to Officer Fried and, in
turn, to Officer Choi. Yet the Appellants elected not to depose
Officer Bradley until November 30, well after the October 12
deadline for amending the pleadings, despite being privy to this
opportunity at least three years earlier.



                                               31
timely amendment.             In view of these readily apparent avenues

available to the Appellants and yet left entirely unexplored,

they have merely evinced an earlier desire to know something and

have not demonstrated they acted—with diligence or otherwise—in

timely pursuing that knowledge.                    See Millennium Partners, L.P.

v. Colmar Storage, LLC, 494 F.3d 1293, 1299 (11th Cir. 2007)

(holding    that      good    cause    did      not    exist        where    movant      was     on

notice    of    information      that,       “with     some         investigation,”           would

have led to timely discovery of the basis for the motion to

amend);    Trustmark      Ins.      Co.    v.   General         &    Cologne      Life     Re    of

America, 424 F.3d 542, 553 (7th Cir. 2005) (same). 15

     The partial dissent focuses on a perceived “domino effect”

that the grant of the motion to quash had on the timing of the

motion to substitute and the district court’s analysis of the

latter    motion.        It    speculates          that   the        Appellants      may      have

received       salient       information        from      the       BCPD     prior       to     the

amendment      deadline,       or     at     the      very      least       any    motion       to

substitute could have been less untimely.                           It is pure conjecture

to suggest that the Appellants may have acquired any information

sought    in    the    request      for    production           prior       to    October       15,


     15
        We reject the Appellants’ assertion that the BCPD
intentionally concealed the identities of Officers Fried and
Choi until after the amendment deadline.      There is simply no
evidence in the record to support that allegation; it is only
rank speculation on the part of the Appellants.


                                             32
particularly in light of language of the request itself.                                     But

even    assuming,       arguendo,          that    the      district    court    abused      its

discretion with respect to the motion to quash, that assumption

would    only     mean       that    the       BCPD    would   have     been    required      to

produce    the     requested         documents—including            Officers         Fried   and

Choi’s police reports—by October 15, the delinquent deadline the

Appellants knowingly set.                   Any motion to amend based on those

documents       would    still       have       been   subject    to    the    higher     “good

cause” standard set forth above, based on both Fed. R. Civ. P.

16(a) and the plain terms of the scheduling order.                              “Good cause”

would still require the Appellants to demonstrate, at bottom,

that they had exercised diligence in obtaining the information

but     that    they     were       nonetheless         unable     to   comply       with    the

scheduling order deadline.

       Nothing in the district court’s “good cause” analysis would

have    changed     given       that       the     court     identified       four    specific

reasons for concluding that the Appellants had demonstrated an

overarching       and    persistent             lack   of    diligence      throughout       the

case.      While       the    dissent          theorizes     on   the   district       court’s

“general frustration . . . with various other delays” in the

case,    post     at     60     n.22,       the    district       court’s      reasoning      is

precisely the appropriate analysis to determine the existence of

“good    cause.”         That       is,    in    considering      whether      “good    cause”

excuses        compliance       with       a      scheduling      order       deadline,      the

                                                  33
district       court       must       examine     whether         the      movant        had      been

diligent,      though          unsuccessful,         in   attempting        to        acquire     the

information that would have formed the basis of a timely motion

to    amend.        To    be    sure,    the     movant’s        conduct         in    the     period

between the deadline and the untimely motion is also relevant to

showing continued diligence in acquiring the information.                                         But

the    court’s      focus        is    appropriately            and    necessarily           on   the

movant’s overall conduct of the case, and in particular what

action led to missing the scheduling order’s deadline.                                            See,

e.g., Fahim v. Marriott Hotel Services, Inc., 551 F.3d 344, 348

(5th Cir. 2008) (“‘Good cause’ . . . requires a party to show

that    the     deadlines          cannot       reasonably            be   met        despite     the

diligence      of        the    party    needing          the    extension.”)            (internal

quotation marks omitted); Leary v. Daeschner, 349 F.3d 888, 907

(6th Cir. 2003) (holding that to show “good cause” a movant must

demonstrate “that despite their diligence they could not meet

the original deadline”); Sosa v. Airprint Systems, Inc., 133

F.3d 1417, 1419 (11th Cir. 1998) (per curiam) (holding that good

cause did not exist where counsel waited months after filing of

the pleadings to propound written discovery and did not take

oral depositions of known key individuals to their claims until

after the deadline for amending the complaint).

       As noted, the Appellants alleged from the outset of the

case that as-yet-unknown BCPD officers were present during and

                                                34
participated in the events they asserted to have caused Cook’s

death.     As of late 2007, the Appellants knew the identities of

several witnesses who could have provided information about the

events    of    August    14   that    could       have        led   them     to   learn    the

identities and alleged roles of Officers Fried and Choi.                                    Yet

they completely failed to pursue any limited or otherwise timely

discovery       to   obtain      information        about        the     “known     unknown”

individuals they believed could be potential defendants in their

case.     They also knowingly selected a return date on the request

for   production        that   was    after       the    amendment       deadline.          The

Appellants never asked for that deadline to be altered prior to

its passing and offer no explanation for their failure to do so.

None of these factors have anything to do with the district

court’s earlier grant of the motion to quash, which, had it been

denied    in     full    or    part,    at        most    would        have    allowed      the

Appellants to file a less untimely motion to substitute.                                 Every

other factor—and significantly, every factor the district court

relied on, and every factor relevant to showing diligence in

meeting the October 12 deadline—would be unaltered.                                 For this

reason,    we    conclude      that    the    district          court’s       decision     with

respect to the motion to quash did not have a harmful “domino

effect”    on    the    events    surrounding            the    Appellants’        motion    to

substitute.



                                             35
      In    addition           to     all    of     the       reasons     set      forth      above

supporting       the      district         court’s       decision,      we     are     also       ever

mindful that our standard of review gives the district court

great    deference,        even       if    it     is   not    always     an      insurmountable

hurdle.     Having conducted that review, we conclude the district

court    did     not      abuse      its     discretion        in   determining            that    the

Appellants’ repeated lack of diligence precluded a finding of

good cause to excuse the untimely motion to substitute.                                           Our

review of the totality of the events surrounding both the grant

of   the    motion        to    quash        and    the       denial    of     the    motion       to

substitute leads us to hold that the district court did not

abuse its discretion in ruling on either motion.



                C.    Claims Against Officers Howard and Green

      When the dust settled from the earlier motions and orders

in   this    case,        Officers         Howard       and    Green    moved        for    summary

judgment    as       to   all       claims    remaining         against      them,     which      the

district court granted.                     The Appellants contend the award of

summary     judgment        was      improper       because      there       remained       genuine

issues     of    material       fact,        which      if    resolved       in    their     favor,

presented sufficient “evidence from which a jury could find that

police officers Howard and Green committed act[s] that caused

the deprivation of” Cook’s and the Appellants’ rights under the



                                                   36
Fourth    and    Fourteenth         Amendments.         (Opening        Br.    51.)      We

disagree.

      Under Federal Rule of Civil Procedure 56(a), a district

“court shall grant summary judgment 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.”       In

undertaking our de novo review of the district court’s grant, we

view the facts in the light most favorable to the Appellants,

and draw all reasonable inferences in their favor.                               Scott v.

Harris, 550 U.S. 372, 380 (2007).                 “Where 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 for trial.”                           Ricci v.

DeStefano,      557     U.S.   557,   ___,    129      S.    Ct.    2658,     2677    (2009)

(quotation marks and citation omitted).



          1.    Claims Regarding Events Leading Up To Cook’s Death

      The Appellants contend there is an unresolved question of

fact as to Officer Green’s location during the events of August

14.      Officer      Green    testified     during         his    deposition    that    he

arrived only       at    the   “highway      level”     after        Cook’s    death,   and

there    is    additional      evidence      in   the       record    to    support     this

testimony.       However, during her deposition, eyewitness Shamika

Summers identified Officer Green as the African-American officer

she saw pursuing Cook on foot and then present at the fence

                                           37
above the highway after Cook climbed over it and before he fell.

Some     additional       evidence        tends    to     support        this    testimony,

including Officer Howard’s accident report, which lists Officer

Green as the BCPD officer who approached and pursued Cook, and

was present at the fence when Cook fell.                    (Opening Br. 52-53.)

       We have reviewed the evidence the Appellants point to and

agree    with     the    district     court    that      although       there    remains    a

question of fact as to Officer Green’s location, that question

is not material.           “Facts are ‘material’ when they might affect

the outcome of the case, and a ‘genuine issue’ exists when the

evidence would allow a reasonable jury to return a verdict for

the nonmoving party.”             News & Observer Publ’g Co. v. Raleigh-

Durham        Airport    Auth.,     597     F.3d    570,        576    (4th     Cir.     2010)

(citation omitted); Hawkspeare Shipping Co. v. Intamex, S.A.,

330 F.3d 225, 232 (4th Cir. 2003) (“There is a material dispute

of fact when the fact’s existence or non-existence could lead a

jury     to     different      outcomes.”).             Under     this     standard,      the

Appellants must present evidence that Officer Green engaged in

conduct       that   violated     Cook’s      Fourth     and     Fourteenth       Amendment

rights,       wherever    he    was    located.            As    explained       presently,

however, even if we assume he participated in the foot pursuit

and    was     present    at    the    fence       prior    to        Cook’s    death,    the

Appellants have failed to create a genuine issue of material

fact with respect to what Officer Green did.

                                             38
       The only evidence in the record that the Appellants offer

to    establish     Officer      Green’s      conduct    is    Summers’   deposition

testimony    and    Officer       Howard’s       accident     report.     The    report

simply states that after Cook leapt over the fence, he “lost his

hand-hold before Officer Green could get to him, and Cook fell

the    70   feet    to    the    concrete     roadway        below.”     (J.A.   972.)

Summers, meanwhile, stated that she observed Caucasian police

officers shaking the fence, and that the one African-American

BCPD officer present at the scene was not shaking the fence, but

was trying to coax Cook to safety before he fell.                           Like the

accident report, Summers’ deposition statement does not create a

genuine issue of material fact as to Officer Green’s conduct.

Even if the Appellants were able to establish that Officer Green

was   present      at    the    fence   and      was   the   African-American     BCPD

officer Summers saw there, the Appellants have not created a

genuine issue of material fact with regard to what he did there.

Accordingly, the district court did not err in deciding that the

Appellants failed to raise any genuine issue of material fact

with regard to their claims against Officer Green as a result of

the question about his location during the events in question.

       Next, the Appellants contend that the district court should

not have granted summary judgment with respect to their claim

based on alleged violations of Cook’s Fourth Amendment rights—

that Cook was unreasonably seized on August 14.                         Specifically,

                                            39
they point to: (1) the Fourth Amendment’s protection “against

arrests      without       probable       cause,      [and]       against   the    use     of

excessive        force     in    making       arrests      and    detentions      that    are

themselves supported by probable cause” (Opening Br. 57); and

(2) cases in which courts have held that a police officer’s

failure to intervene during another officer’s use of excessive

force      can    be     the    basis    of    §    1983    liability.         From      these

concepts, they assert there is sufficient evidence in the record

from which a jury could conclude that Officer Green was liable

for   violating        Cook’s     Fourth      Amendment       rights     because    Officer

Green allegedly witnessed Officer Fried violating Cook’s Fourth

Amendment rights by seizing him without probable cause and using

excessive        force    during     that     seizure,      and    yet   failed    to    stop

either     violation.           As   a   result,      they       maintain   that    summary

judgment on their Fourth Amendment claim was improper. 16


      16
       The Appellants initially alleged a Fourth Amendment claim
against Officer Howard as well. It appears they abandoned that
claim in light of their acceptance of undisputed evidence
produced during discovery that showed Officer Howard was not
present until arriving at the highway level after Cook’s death.
Although parts of the opening brief continue to allege that
Officer Howard was present at the fence, it appears that
allegation is limited to a recitation of the facts for purposes
of the Rule 12(b)(6) motion.    There is a difference, however,
between viewing the facts alleged in the amended complaint as
true for purposes of our review of the Rule 12(b)(6) motion and
improperly representing facts to the Court that counsel now
knows to be false.   Counsel is cautioned not to engage in such
conduct in any future submissions to this Court. In any event,
the Appellants have abandoned a Fourth Amendment-based claim
(Continued)
                                               40
      The district court concluded that the Fourth Amendment was

not implicated in this case because the facts, viewed in the

light most favorable to the Appellants, showed that Cook had

never been “seized” within the meaning of the Fourth Amendment:

“Although the police were certainly attempting to effectuate a

seizure of Mr. Cook, their attempt failed, as he got behind the

fence without any physical police contact . . . .”                  (J.A. 29.)

We agree with the district court’s analysis and application of

Supreme Court precedent.

      As   relevant     here,    the   Fourth   Amendment   protects   against

“unreasonable . . . seizures.”            This Fourth Amendment protection

is   not   implicated    every    time   a    police   officer   approaches   an

individual to ask a few questions. 17              Florida v. Bostick, 501




against Officer Howard, and even if they had not, such a claim
would fail based on the record before us.
     17
        The Appellants repeatedly refer to the BCPD officers’
initial approach and pursuit of Cook as being unlawful due to a
lack of probable cause. They are wrong as to both the law and
the facts. During discovery, several points came to light which
are no longer disputed by any evidence (despite the Appellants’
bald assertions to the contrary), and which are relevant to
understanding the initial encounter between Cook and the BCPD
officers.   The officers observed Cook walking in such a manner
that suggested he was carrying a concealed weapon at his waist.
When they approached him in order to conduct a field interview,
Cook fled and the officers pursued him.     A firearm was later
retrieved from Cook’s body.
     While we undertake the basic Fourth Amendment “seizure”
analysis employed by the district court, we also note that under
the Supreme Court’s precedent regarding Terry stops and in
particular its decision in Illinois v. Wardlow, 528 U.S. 119
(Continued)
                                         41
U.S. 429, 434 (1991); Schultz v. Braga, 455 F.3d 470, 480 (4th

Cir. 2006).            Rather, there must be a “seizure,” that is, a

situation where, “in view of the totality of the circumstances .

.    .    ,    a   reasonable    person    would    not   feel   free    to   leave   or

otherwise terminate the encounter.”                   United States v. Weaver,

282 F.3d 302, 309 (4th Cir. 2002).                   A seizure requires “either

physical force . . . or, where that is absent, submission to the

assertion of authority.”                California v. Hodari D., 499 U.S. 621,

626 (1991) (emphasis omitted).

          The facts of this case, viewed in the light most favorable

to       the   Appellants,      could    not    establish     that   a   “seizure”    by

either physical force or submission to an assertion of authority

occurred.          A seizure by physical force occurs when there is “a

governmental termination of movement through means intentionally

applied.”           Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989)

(emphasis          omitted)     (analyzing      whether   a   seizure    by   physical

force occurred when a fleeing subject ran into and was killed on

impact with a police-created roadblock set in place to stop the

subject); Hodari D., 499 U.S. at 624 (“From the time of the



(2000), the BCPD officers were not required to have probable
cause simply to approach Cook initially so long as they had a
“reasonable,   articulable suspicion”   of  criminal  activity.
Moreover, even absent a reasonable, articulable suspicion, once
Cook engaged in “unprovoked flight upon noticing the police,”
the police could lawfully pursue him in order “to briefly
investigate further.” see id. at 123-26.


                                               42
founding to the present, the word ‘seizure’ has meant a taking

possession.        For most purposes at common law, the word connoted

not merely grasping, or applying physical force to, the animate

or inanimate object in question, but actually bringing it within

physical     control.”)         (internal         citations   omitted);      id.    at    629

(holding     no    “seizure”       occurred         until     Hodari   was    physically

apprehended, i.e., tackled to the ground to stop his flight);

see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-44

(1998).      Cook fled from BCPD officers as they approached him;

there is no evidence in the record that they ever made physical

contact with Cook, nor is there evidence that they terminated

his “freedom of movement through means intentionally applied.”

Contrast Brower,          489    U.S.    at       597-98    (holding   that   where       the

police roadblock was intended to stop Brower by physical impact

and did so, a seizure occurred).

      When an officer acts by a show of authority rather than

physical restraint, “the individual must actually submit to that

authority”     for    there      to     be    a    “seizure.”       United    States      v.

Beauchamp, 659 F.3d 560, 566 (6th Cir. 2011) (citing Brendlin v.

California, 551 U.S. 249, 254 (2007)).                        Even assuming that the

BCPD officers’ approach and pursuit of Cook constituted “show of

authority,”       Cook’s    flight      nonetheless         demonstrates      a    lack    of

submission such that a “seizure” did not occur.                        See Hodari D.,

499   U.S.    at    629    (assuming         that     a    police   officer’s      pursuit

                                              43
constitutes a “show of authority,” a defendant’s non-compliance

meant there was no seizure during the course of the pursuit);

see also United States v. Griffin, 652 F.3d 793, 800-01 (7th

Cir. 2011) (“[A] seizure by show of authority does not occur

unless and until the suspect submits.”) (emphasis in original).

At no time did Cook submit to a show of authority.

     The     uncontroverted          record      evidence          thus    supports       the

district court’s determination that Cook had not been “seized”

within the meaning of the Fourth Amendment.                           Accordingly, the

court did not err in granting Officer Green summary judgment on

the Fourth Amendment claim.

     The Appellants next advance the argument that the district

court erred in granting summary judgment to Officer Green on

their claim that his conduct violated Cook’s substantive due

process rights.       A § 1983 claim of this sort (based on executive

branch     action)     is     more     difficult       to     prove        than     alleging

substantive    due     process       violations    resulting         from     legislative

action.     “[T]he Supreme Court has . . . marked out executive

conduct    wrong     enough    to    register     on   a     due     process      scale   as

conduct     that     ‘shocks     the       conscience,’        and        nothing    less.”

Waybright v. Frederick County, Maryland, 528 F.3d 199, 205 (4th

Cir. 2008) (quoting Lewis, 523 U.S. at 850).                         Negligence is, by

definition,        insufficient       to    satisfy         this     hurdle,        although

something     less     than     intentional        conduct          may,     in     special

                                            44
circumstances, be sufficient. 18    Id.   The Supreme Court has thus

instructed:

     [I]n a due process challenge to executive action, the
     threshold question is whether the behavior of the
     governmental officer is so egregious, so outrageous,
     that it may fairly be said to shock the contemporary
     conscience.    That judgment may be informed by a
     history of liberty protection, but it necessarily
     reflects an understanding of traditional executive
     behavior,   of  contemporary  practice,  and  of  the
     standards of blame generally applied to them. Only if
     the necessary condition of egregious behavior were
     satisfied would there be a possibility of recognizing
     a substantive due process right to be free of such
     executive action . . . .

Lewis, 523 U.S. at 847 n.8.

     We conclude that the Appellants’ allegations with regard to

Officer Green — the only BCPD officer who is a party defendant

and who is alleged to have been at the scene prior to Cook’s

death — do not rise to the requisite level to survive summary

judgment.     Simply put, even assuming that Officer Green pursued

Cook on foot and was present at the fence, there is nothing

     18
        We note that the Appellants rely on Parratt v. Taylor,
451 U.S. 527 (1981), to contend that negligence is sufficient to
establish liability under § 1983.    In so doing, they overlook
the Supreme Court’s decision in Daniels v. Williams, 474 U.S.
327 (1986), which overruled Parratt in relevant part, by holding
that Fourteenth Amendment due process violations “must flow from
conduct amounting to more than mere negligence.”       Temkin v.
Frederick Cnty. Comm’rs, 945 F.2d 716, 719 (4th Cir. 1991).
     Counsel’s reliance on subsequently overruled case law is
not isolated to this one instance. Quite apart from the lack of
merit of the Appellants’ claims, we once again caution counsel
that such advocacy renders a disservice to his clients and
should not be repeated.



                                   45
about his alleged conduct in the record evidence that “shocks

the   conscience.”      As     noted   above,   two     sources   place   Officer

Green as a participant in the foot chase and present at the

fence   prior    to   Cook’s    fall—Officer     Howard’s      accident    report

(albeit hearsay) and eyewitness Summers’ deposition testimony.

The accident report does not contain any evidence to support a

substantive due process claim against Officer Green, as that

report simply indicates that Cook “lost his hand-hold before

Officer Green could get to him [behind the fence].”                (J.A. 972.)

      Summers’ deposition testimony also precludes the conclusion

that Officer Green violated Cook’s due process rights.                    Summers

stated that she observed one African-American BCPD officer at

the scene; she identified that officer as Officer Green.                        She

averred   that    Officer      Green   never    shook    the   fence,     but   was

“trying to talk [Cook] into coming around . . . and get down,”

and to coax him to a safe position.                  (J.A. 581, 586-88, 614,

617-19, 639, 679.)      She further stated that after Cook fell, the

African-American      officer    “looked     dazed    and   stunned,”     and   was

“crying.”   (J.A. 585, 590, 654-55.)            When asked whether Summers

saw the African-American officer “do anything to cause injury to

[Cook,]” or to “cause [Cook] to fall,” Summers replied, “No,

sir,” “I didn’t hear him call him names and I didn’t see him

pushing the fence.”      (J.A. 655, 656.)



                                        46
       Even in the light most favorable to the Appellants (i.e.,

accepting     that     Officer       Green     was       the    African-American              BCPD

officer     Summers    observed        near    the      fence),        Summers’         testimony

clearly     states      that        officer       did    not         participate         in    any

actionable conduct.            Nor does her statement allow an inference

that   Officer       Green     simply       stood       by     and    allowed       the       other

officers     to    violate     Cook’s       due    process       rights:      according          to

Summers’ testimony, the African-American officer was attempting

to   talk   Cook     down    from     the     fence      and    bring     him      to     safety.

Speculation that Officer Green could have done something else or

more is not the standard by which a claim against him is judged,

and the record does not demonstrate that Officer Green’s conduct

rose   to   the     level    of     culpability         required       for    a    viable       due

process claim.         See Patten v. Nichols, 274 F.3d 829, 834 (4th

Cir.   2001)       (“While     it    is     clear       that    intentionally            harmful

conduct may constitute a violation of the Fourteenth Amendment,

it is equally clear that negligence alone does not amount to a

constitutional        violation.”);         Lewis,       523    U.S.     at       853   (“[W]hen

unforeseen        circumstances       demand       [a    police]       officer’s         instant

judgment,     even     precipitate        recklessness           fails       to    inch       close

enough to harmful purpose to spark the shock that implicates the

large concerns of the governors and the governed.”) (internal

quotation      marks     omitted);          id.     at       840-55      (describing            the

different degrees of culpability required).

                                              47
       In contrast with the actual evidence in the record, the

Appellants’       opening         brief   consists           of    rank       conjecture     and

speculation by alleging that Officer Green actively participated

in   the     Caucasian       BCPD    officers’      allegedly           violative     conduct.

But at the summary judgment stage, the Appellants can no longer

rest    on    mere    allegations;        instead,       they      must       have   set   forth

specific       evidence      to     support    their         claims.           See   Lujan    v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992).                               The facts they

have established, even when viewed in the light most favorable

to them, do not set forth a viable substantive due process claim

against Officer Green.              His conduct cannot, as a matter of law,

be said to “shock the conscience,” or to be so egregious or

outrageous       so     as    to     state     a    claim         for     a    constitutional

violation.        For these reasons, we hold that the district court

did not err in awarding summary judgment to Officer Green.



     2.      Claims Based on a Conspiracy to Cover-Up Cook’s Death

       The Appellants also contend that the district court erred

in     granting       summary       judgment       to    Officer         Howard      on    their

substantive       due    process      claims.           As   already          recognized,    the

Appellants’ claims against Officer Howard shifted significantly

in light of the evidence produced at discovery.                               By the time the

summary judgment motion was decided, the only claims remaining

against Officer Howard were based on his alleged participation

                                              48
in a conspiracy to cover up the true circumstances of Cook’s

death   by,   inter      alia,     filing    a   false         accident     report.        The

district court granted summary judgment to Officer Howard based

on   its    conclusion      that    the     Appellants          had   not    identified      a

protected interest.

       The Appellants assert that the record contains sufficient

evidence from which a jury could conclude that Officer Howard

participated in a conspiracy that violated the Appellants’ due

process rights.          The Appellants suggest Officer Howard’s conduct

implicates two protected due process interests.                                  First, they

contend that “a parent or child of a decedent whose death was

[caused]     by    the   unlawful    conduct        of    police      officers      have    a”

substantive due process claim against those officers and any

individual who covers up that misconduct.                        (Opening Br. 61-62.)

Second, they contend that the conspiracy to cover up the events

surrounding Cook’s death impeded their access to courts.

       We   agree    with    the     district       court:        Officer        Howard    was

entitled to judgment as a matter of law because the Appellants

failed to identify and adequately plead protected constitutional

interests.        As we recognized in Shaw v. Stroud, 13 F.3d 791 (4th

Cir.    1994),      “the     Supreme        Court        has     never      extended       the

constitutionally protected liberty interest incorporated by the

Fourteenth        Amendment        due      process            clause       to     encompass

deprivations resulting from governmental actions affecting the

                                            49
family only incidentally.”               Id. at 805.        We declined to sanction

such a claim in Shaw, and we adhere to that precedent.                                  See id.

      Similarly, the Appellants failed to advance a viable claim

based on a conspiracy to deny access to courts.                                Such a claim

required proof that Officer Howard and others “acted jointly in

concert and that some overt act was done in furtherance of the

conspiracy which resulted in [the] Appellants’ deprivation of a

constitutional       right       (in     this      case   the    right        to     access       to

courts).”      Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th

Cir. 1996).         The evidence does not disclose any communication—

direct or circumstantial—that Officer Howard intentionally filed

a false accident report or otherwise attempted to cover up the

events of August 14, let alone that he conspired with anyone to

do so.        “The problem with [the Appellants’] evidence is not

merely     that     each     act       alleged      is    capable        of     an       innocent

interpretation.            Rather,      the     problem    is    that     [the]          evidence

amounts to nothing more than rank speculation and conjecture.”

Id. at 422 (rejecting access to courts conspiracy claim).

      At   bottom,     the       Appellants’        argument     appears           to    be   that

because    Officer     Howard’s         report      contradicts      their         speculation

about what happened and thus impedes their ability to prove it

in   court,    he    had    to    have    participated          in   a   conspiracy           that

denied     their     right       to     access      to    courts.             This       argument

necessarily fails not only for the problems already identified,

                                              50
but also for the reason identified by the district court: the

Appellants   have    failed   to   identify       with   any    specificity    how

Officer Howard’s purported conduct prevented them from seeking

judicial redress.       See Christopher v. Harbury, 536 U.S. 403,

414-16 (2002); see also Swekel v. City of River Route, 119 F.3d

1259, 1263-64 (6th Cir. 1997) (access to courts claims require

proof “that the defendants’ actions foreclosed [the Appellants]

from filing suit in . . . court or rendered ineffective any . .

. remedy [they] previously may have had”).                     Having failed to

produce   evidence     of     Officer        Howard’s    participation    in    a

conspiracy to cover up the events surrounding Cook’s death or to

plead with sufficient particularity how such a conspiracy would

have implicated their right to access courts, this substantive

due process claim also fails. 19        20




     19
        In their opening brief, the Appellants make a passing
reference to Officer Green’s purported participation “in the
cover-up of the unlawful actions of all the police officers,”
such that he, too, is liable for participating in a conspiracy
to violate Cook’s constitutional rights.      (Opening Br. 59.).
The district court found that the Appellants had not pled a
conspiracy claim against Officer Green in their amended
complaint, but had raised such a claim for the first time in
their opposition to summary judgment. For that reason, it held
the Appellants had not satisfied “the basic notice pleading
standards” required in Federal Rule of Civil Procedure 8(a).
     We agree with the district court.          Federal pleading
requires that a complaint give defendants “fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957).    Even under Rule 8’s
liberal pleading requirements, no reading of the amended
complaint   could  conclude   that  it   contains   a  cognizable
(Continued)
                                        51
     For the aforementioned reasons, the district court did not

err in granting summary judgment to Officers Howard and Green as

to all of the claims the Appellants asserted against them.



                              III.

     For the foregoing reasons, we affirm the judgments of the

district court.

                                                         AFFIRMED




conspiracy claim against Officer Green.         Accordingly,    the
district court correctly held that this claim was barred.       See
Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 254        (4th
Cir.   2005)   (“[N]otice   pleading   requires   generosity     in
interpreting a plaintiff’s complaint.     But generosity is     not
fantasy.”) (internal quotation marks and citation omitted).
    20
        The Appellants also challenge the district court’s grant
of summary judgment with respect to Counts IV and V, their state
law claims. We have reviewed the parties’ arguments and find no
reversible error in the district court’s determination that
those claims were precluded due to the Appellants’ failure to
provide the requisite notice under Maryland’s Local Government
Tort Claims Act.


                               52
DIAZ, Circuit Judge, dissenting in part and concurring in part:

      While the majority opinion highlights the many missteps in

this case, it ultimately assigns sole responsibility for them to

the Appellants, affirming the judgment of the district court

across the board.          I disagree, and would hold instead that the

district    court    abused       its    discretion      in    granting     the    BCPD’s

motion     to    quash    based    on     its    blanket       conclusion       that   the

documents       sought    by    the     Appellants      were     irrelevant.           And,

looking to the domino effect of that decision on the Appellants’

subsequently denied motion to substitute, I do not believe that

the court’s error was harmless.                 Accordingly, although I concur

in the remainder of the opinion, I am unable to join Part II.B.



                                           I.

      In considering the district court’s decision to quash the

Appellants’ request for documents related to Cook’s death, the

majority    properly      emphasizes       the       deference    that     we    owe   the

district    court    on    appeal.        Review       for    abuse   of   discretion,

however, does not mean a district court’s authority is carte

blanche.        See United States v. Under Seal (In re Grand Jury),

478 F.3d 581, 584 (4th Cir. 2007) (“A district court has abused

its   discretion     if   its     decision      is    guided     by   erroneous     legal

principles or rests upon a clearly erroneous factual finding.”

(quoting Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th

                                           53
Cir. 2006))); see also United States v. Mason, 52 F.3d 1286,

1289, 1293 (4th Cir. 1995) (noting the deferential standard of

review, but finding an abuse of discretion).                     Mindful that I may

not substitute my judgment for that of the district court, I

believe nonetheless that in quashing the Appellants’ document

request in its entirety on relevance grounds, the court abused

its discretion, and that this error in turn infected the court’s

analysis      of    “good     cause”    as   to   the    Appellants’       later-filed

motion to substitute.

      As support for its decision to grant the BCPD’s motion to

quash,    the      district    court     stated   simply      that    it    was   “fully

satisfied     that    the     documents      sought     by   [the    Appellants]     are

irrelevant to the claims that are now pending.”                      J.A. 18. 1     I do

not dispute that most of the documents sought by the Appellants

were irrelevant.            Yet the relevance of documents responsive to

the   first     three   requests—including            incident      reports,      witness

interviews,        surveillance        records,   and    statements        from   police

officers related to the tragic events of August 14, 2007 and

      1
        The majority also highlights the district court’s
assertion that the BCPD should not be put to the expense of
assembling the requested documents.   The expense consideration,
however, trailed the court’s relevance finding.        That is,
immediately after determining that the requested documents were
“irrelevant,” the court opined that “[t]herefore, the [BCPD]
should not be put to the expense” of assembling them. J.A. 18.




                                             54
involving   Cook—is      equally    clear.       Moreover,    in   opposing    the

BCPD’s motion to quash, the Appellants specifically argued that

some of the documents would lead to evidence regarding their

claims against Officers Howard and Green “and would also lead to

the disclosure of the identity of the other police officers at

the scene.”       Id. 192 (emphasis added).           Significantly, had the

district court ordered the BCPD to produce those documents that

were relevant to the remaining claims, the Appellants would have

known on or before October 15, 2010 that Officers Fried and Choi

were also involved in Cook’s pursuit.

      Thus, it is little wonder, as the majority acknowledges,

that the district court’s wholesale quashing of the requests

“related to Cook’s death” is “more problematic.”                      Maj. Op. at

19.   I agree, particularly given that the operative procedural

rule grants a district court the power to quash or modify a

subpoena.   See Fed. R. Civ. P. 45(c)(3) (emphasis added).                   In my

view, a district court abuses its discretion when—as in this

case—it   fails    to   recognize    or   consider     the    range    of   options

available   to    it    before   ruling     on   a   motion   to   quash.      For

example, in Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,

818-19 (5th Cir. 2004), the Fifth Circuit held that the district

court abused its discretion in quashing a subpoena “outright,”

noting in part that the court did not “attempt to modify the

subpoena to cure any overbreadth” and adding that “[g]enerally,

                                       55
modification         of     a        subpoena       is    preferable            to    quashing      it

outright.”          See also Linder v. Nat’l Sec. Agency, 94 F.3d 693,

698    (D.C.     Cir.       1996)          (agreeing      that     “a      modification        of    a

subpoena       is    generally             preferred      to    outright          quashing,”       but

finding no abuse of discretion where the subpoena request could

not be modified “in any fruitful manner”).                                  Here, the district

court’s decision to quash in toto the Appellants’ request for

production of documents swept far too broadly.

       While reluctant to concede the district court’s error, the

majority nevertheless attempts to excuse it by noting that the

BCPD    acknowledged            in    the     motion      to    quash       its      obligation      to

produce        “non-privileged,                non-disciplinary/personnel                    related

responsive       documents            in    its   possession           .    .   .    that    pertain

specifically to the facts and circumstances of the August 14,

2007 incident.”           J.A. 178 n.2.             That concession, however, is far

from   satisfying         when        put    in     context,      particularly           since      the

district court placed no conditions or limitations on its order

to quash, and thus the BCPD was free to produce documents—or

not—at its leisure.                  As it happened, the BCPD did not produce

the    documents      until          November       22,    2010,       well     after       both   the

October    15,       2010       return       date    set       forth       in   the    Appellants’

request for production of documents and the October 12, 2010

deadline for amending pleadings.



                                                  56
                                            II.

       It is against this backdrop that I consider the district

court’s related denial of the Appellants’ motion to amend their

pleadings       (by    substituting        Officers      Fried    and   Choi     as    party

defendants) as lacking “good cause.”                     The majority insists that

the district court’s earlier ruling on the motion to quash “did

not directly bring about the Appellants’ inability to timely

acquire      information         about   Officers      Fried      and   Choi’s    alleged

presence and participation in the events of August 14,” Maj. Op.

at    25,    opting     instead    to    place    sole    responsibility         for   that

result on the Appellants’ lack of diligence.                            The Appellants

certainly deserve substantial blame for the procedural mess that

is this case.          But unlike the majority, I am unwilling to ignore

the domino effect of the district court’s error on the motion to

quash       when    considering      whether      the     Appellants      subsequently

demonstrated good cause to amend their pleadings.

       In    analyzing      this    issue,    I   am     of    course    bound    by    the

“harmless error” doctrine, which commands that “[u]nless justice

requires otherwise, no error . . . by the court . . . is ground

for    .    .   .     vacating,     modifying,      or    otherwise      disturbing       a

judgment or order” and that we must “disregard all errors and

defects      that     do   not    affect    any   party's        substantial     rights.”

Fed. R. Civ. P. 61.              See Tagupa v. Bd. of Dirs., 633 F.2d 1309,

1312 (9th Cir. 1980) (citing Rule 61 and noting that “[t]he

                                             57
harmless error doctrine applies to discovery orders”); see also

Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) (declining

to excuse the district court’s exclusion of evidence as harmless

where   a   party   “was   prevented    from    fully   developing     evidence

relevant to a material issue”).             I conclude here, however, that

the district court’s error on the motion to quash ruling was not

harmless.

      In arriving at that conclusion, I necessarily concede that

the   Appellants    (1)    inexplicably      set   a   return   date   for   the

request for production of documents that was three days beyond

the scheduling order’s deadline for joining parties and amending

pleadings, (2) did not request an extension of the scheduling

order deadlines after the district court granted the motion to

quash, and (3) failed to ask the district court for permission

to conduct discovery prior to the entry of the scheduling order.

Yet these mistakes were not inexorably fatal, as “good cause”

does not demand perfection by a litigant.               See 6A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 1522.2 (3d ed. 2010) (“The use of the good-cause

standard [for modifying scheduling orders], rather than allowing

modification only in cases of manifest injustice as is done for

other   pretrial     orders,    indicates      that     there   may    be    more

flexibility in allowing some relief.”) (citation omitted).



                                       58
        As it relates to the “good cause” determination, it was not

until    November    22,    2010    that    the   BCPD   first    disclosed    that

Officers Fried and Choi were involved in the pursuit of Cook.                      A

mere    eight   days    later,      the    Appellants    filed    the    motion   to

substitute, arguing that they “could not have reasonably moved

to amend the complaint to substitute the names of these John Doe

defendants any earlier” than November 22, 2010.                  J.A. 202.

       Even recognizing the Appellants’ many procedural blunders,

had the district court parsed the request for documents when

considering the motion to quash, and ordered the production of

those    documents     that   were    patently     relevant,      the    Appellants

would have obtained the reports of Officers Fried and Choi by

October 15, 2010 at the latest—rather than five weeks later.

Admittedly, the Appellants may nevertheless have been left to

file    an   untimely      motion    to    substitute,    but     a    trial   judge

considering whether there is “good cause” to allow such a motion

surely must account for the length of the delay.                      See O’Connell

v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 155 (1st Cir.

2004) (affirming denial of motion to amend filed five months

after the scheduling order deadline and concluding that “[s]uch

a long and unexplained delay vindicates the district court's




                                           59
conclusion    that   plaintiffs    were   not    diligently   pursuing      this

litigation”). 2

      As   did    the   district   court,       the   majority     faults   the

Appellants for failing to more actively pursue discovery on the

front end of the case regarding the other officers involved in

the pursuit.      Fair enough, but here again, some context helps to

soften the blow.        Specifically, as emphasized at oral argument,

while the Appellants suspected that other officers were involved

in   the   alleged   conspiracy    following     Cook’s   death,    they    also

believed that Howard and Green were the officers who initially

pursued Cook—and this belief was not without reason.

      Shortly after Cook’s death (but before filing suit), the

Appellants requested that the BCPD preserve and produce certain


      2
       Curiously, the district court’s order denying the motion
to substitute makes little mention of the seven-week delay
between the filing of the motion and the deadline in the
scheduling   order   for  seeking   such  relief.      A   general
frustration,   however,  with   various  other   delays   in   the
litigation clearly drove the court’s conclusion that the
Appellants failed to demonstrate good cause.    Specifically, the
court noted that the (1) Appellants’ motion to substitute came
nearly three years after Cook’s death, (2) suit was filed in
February 2010 and although the scheduling order was not entered
until September 9, 2010, this was due to the Appellants’ naming
of several improper defendants, and (3) Appellants did not move
for leave to conduct pre-scheduling order discovery.           Any
frustration on the part of the district court with the slow
progress of the litigation—a sluggishness that the court
attributed solely to the Appellants—was certainly not helped by
the filing of a motion to substitute seven weeks past the
scheduling order deadline.


                                     60
documents related to the incident, and in response, the BCPD

provided a copy of the motor vehicle accident report and the

police department’s incident report.                           It was these documents

that identified Howard as the reporting officer and Green as the

officer who initially pursued Cook on foot.                                Thus, the only

documents the BCPD provided before the Appellants filed suit

suggested         that    Officers    Howard       and    Green     were    properly-named

defendants,         and    said     nothing    of        Officers      Fried     and   Choi’s

involvement         in    the    pursuit.       It       was    not    until     the   BCPD’s

disclosure         on    November    22,    2010—which          included       reports    from

Officers         Fried     and    Choi      dated        August     14,     2007—that     the

Appellants learned otherwise.

       Moreover, it is not clear to me, as the majority asserts,

that       the   Appellants       “almost    certainly         could      have   ascertained

[Officers Fried and Choi’s] presence significantly earlier than

they did.”              Maj. Op. at 30.            For example, although Officer

Howard’s         answer    to    interrogatories         listed       Officers    Fried    and

Choi as present at the scene, he does not assert that they were

involved in the pursuit.                 And in his later deposition, Officer

Howard agreed that he “did not recognize” Officer Fried, J.A.

733, and did not know Officer Choi. 3                      Further, although Officer


       3
       Admittedly, Green testified at his deposition that Choi
was among the officers who responded to the scene where Green
was with Cook’s body, and that he ultimately learned that
(Continued)
                                              61
Bradley testified in his deposition that he told Cook’s fiancée

shortly after the incident that he “saw” Officers Fried and Choi

at the scene, id. 499, Cook’s fiancée stated in her answer to

interrogatories only that Officer Bradley indicated that “two of

his co-workers were already there” when he arrived, id. 859.

      But even conceding that the Appellants should have been

more conscientious in pursuing discovery, I think it necessary

to   consider    their    shortcomings     against   the   backdrop      of   the

district court’s error on the motion to quash.                On that score,

it bears repeating that the documents disclosed on November 22,

2010 fell well within the ambit of the Appellants’ first three

requests for production of documents, and that had the district

court not quashed the request for these relevant documents, the

Appellants      would    have   learned    of   Officers   Fried   and   Choi’s

involvement in the pursuit by at least October 15, 2010, if not

sooner.   It is conceivable then that the Appellants might have

been able to comply with the district court’s deadline in the




Officer “Freel or Fried, I believe” was pursuing Cook that day,
and that “Officer Choi may have assisted.”      J.A. 828.  Such
vague statements, however, do not suggest that the Appellants
“almost certainly could have ascertained [Officers Fried and
Choi’s] presence significantly earlier than they did.” Maj. Op.
at 30. Indeed, even when presented with a photograph of Officer
Fried, the most Officer Green could say was that “[i]t looks
like it could be [the officer who pursued Cook],” but that he
was “not sure.” J.A. 829-30.



                                      62
scheduling order for amending the pleadings, or at worse have

been a few days beyond it, thus making the “good cause” analysis

a far closer question.

     In   short,   I   believe   that    justice   requires   the   district

court to consider anew its “good cause” determination on the

motion to substitute, in light of its failure to consider the

full breadth of its discretion on the motion to quash, and the

resulting impact on the Appellants’ ability to timely discover

the relevant facts warranting an amendment to their pleadings. 4



                                   III.

     For the reasons set forth above, I dissent from Part II.B

of the majority opinion.




     4
       In a footnote accompanying its order denying relief on the
motion to substitute, the district court suggests that the
Appellants’ attempts to join Officers Friend and Choi might well
have been futile under Federal Rule of Civil Procedure 15. The
district court, however, never reached the merits of the
proposed amendment under Rule 15, and neither do I.



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