UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1267
MININA D. MONTGOMERY, Personal representative
of the estate of Philip Montgomery and
individually, as the widow of Philip
Montgomery,
Plaintiff - Appellant,
versus
ANNE ARUNDEL COUNTY, MARYLAND; P. THOMAS
SHANAHAN, Anne Arundel County Chief of Police;
THOMAS A. SUIT, Captain; JAMES RICHEY,
Lieutenant; GREGORY ESHLEMAN, Lieutenant,
#756; ROBERT M. MADISON, Sergeant, #580; FRED
REYNOLDS, Corporal, #675; JAMES R. WELLMAN,
#9695; CHARLES R. ATWELL, Officer, #854,
Defendants - Appellees.
No. 05-1314
MININA D. MONTGOMERY, Personal representative
of the estate of Philip Montgomery and
individually, as the widow of Philip
Montgomery,
Plaintiff - Appellee,
versus
ANNE ARUNDEL COUNTY, MARYLAND; P. THOMAS
SHANAHAN, Anne Arundel County Chief of Police;
THOMAS A. SUIT, Captain; JAMES RICHEY,
Lieutenant; GREGORY ESHLEMAN, Lieutenant,
#756; ROBERT M. MADISON, Sergeant, #580; FRED
REYNOLDS, Corporal, #675; JAMES R. WELLMAN,
#9695; CHARLES R. ATWELL, Officer, #854,
Defendants - Appellants.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, District Judge. (CA-02-
2621-MJG)
Argued: March 14, 2006 Decided: May 3, 2006
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Scott Larson, LAW OFFICE OF ROBERT AMMONS,
Greenbelt, Maryland, for Appellant/Cross-Appellee. Hamilton F.
Tyler, ANNE ARUNDEL COUNTY OFFICE OF LAW, Annapolis, Maryland;
Howard Margulies, Baltimore, Maryland, for Appellees/Cross-
Appellants. ON BRIEF: Angelo I. Castelli, Greenbelt, Maryland, for
Appellant/Cross-Appellee. Linda M. Schuett, County Attorney, ANNE
ARUNDEL COUNTY OFFICE OF LAW, Annapolis, Maryland, for
Appellees/Cross-Appellants Anne Arundel County, Maryland, P. Thomas
Shanahan, Anne Arundel County Chief of Police, Thomas A. Suit,
Captain, James Richey, Lieutenant, Gregory Eshleman, Lieutenant,
#756, Robert M. Madison, Sergeant, #580, Fred Reynolds, Corporal,
#675, and James R. Wellman, #9695; Mark W. Howes, Annapolis,
Maryland, for Appellee/Cross-Appellant Charles R. Atwell, Officer,
#854.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Certain Anne Arundel County, Maryland, police officers
mistakenly assumed that Philip Montgomery had been drinking alcohol
when he was arrested for erractic driving. The officers placed him
in a holding cell to “sober up” without seeking medical assistance.
J.A. 657. Montgomery had actually consumed antifreeze, and he died
several hours later as a result. Montgomery’s widow filed this
suit against the County and several individual officers, asserting
claims under 42 U.S.C. § 1983, the Maryland Constitution, and
Maryland tort law. The district court dismissed all of her claims
with the exception of the deliberate indifference, gross
negligence, and negligence claims against arresting officer Charles
Atwell. The County remained in the suit for indemnification
purposes. After an eight-day trial, the jury rendered a verdict in
favor of Atwell, and the district court entered judgment for him
and the County. The court awarded costs to Atwell but denied them
to the County. Montgomery appeals the judgment, and the County
cross-appeals the denial of costs. Finding no error, we affirm.
I.
On the afternoon of December 15, 2000, an off-duty police
officer for the District of Columbia, Christopher Huxoll, observed
Montgomery driving erratically on Route 4 in Anne Arundel County.
Montgomery narrowly missed a sign and then struck a guardrail,
3
blowing out a rear tire. Huxoll followed Montgomery, who drove on
the rim for about two miles before turning onto an exit ramp and
stopping his vehicle at the top of the ramp. When Montgomery tried
to back his car down the ramp, Huxoll pulled his car up against
Montgomery’s to prevent him from backing into oncoming traffic.
Huxoll then approached Montgomery’s car on foot, removed
Montgomery, and placed him in handcuffs. At some point during the
stop, Huxoll asked Montgomery what he had been drinking, and
Montgomery responded, “antifreeze.” S.J.A. 9. Huxoll did not take
Montgomery’s answer seriously. He thought Montgomery simply meant
that he had consumed alcohol.
In the meantime, Huxoll had called 911 for assistance,
and Officer Charles Atwell of the Anne Arundel County Police
Department arrived about fifteen minutes later. According to
Huxoll, he told Atwell upon his arrival that Montgomery had
consumed antifreeze. Huxoll was not certain that Atwell heard him,
however, because the traffic was noisy and the two officers were
standing some distance apart. Atwell maintains that Huxoll never
told him that Montgomery had consumed antifreeze.
Atwell placed Montgomery in the front seat of Atwell’s
cruiser and drove him to the Southern District Police Station.
Montgomery cried during the twenty to twenty-five minute trip to
the station; he did not say that he had consumed antifreeze. When
they arrived at the station, Atwell and another officer, John
4
Gilmer, removed Montgomery from the vehicle and helped him walk to
the booking area and, ultimately, to the holding cell. Atwell
called Montgomery’s mother later that evening, telling her that
Montgomery was under arrest for driving while intoxicated.
Montgomery’s mother told Atwell that her son “wasn’t a drinker.”
J.A. 667. She also told him that Montgomery was bipolar and that
he had not been taking his medication for some time, but she made
no suggestion that the officers should get medical attention for
her son. She agreed to pick up Montgomery at the police station
when the officers were ready to release him.
At approximately 10:00 p.m., Atwell returned to the
police station to complete his paperwork for the evening. Atwell
went to the cellblock to have Montgomery sign the tickets related
to the incident. When Atwell entered Montgomery’s cell, he saw
that Montgomery was in obvious distress: he was “completely blue,”
his lips were “very, very dark blue,” and he had a “very thick
white mucus” in his mouth. J.A. 677. Atwell directed booking
officer James Wellman to call 911 and summoned another officer who
was trained as an Emergency Medical Technician. While awaiting the
paramedics, the officers attempted to perform CPR on Montgomery.
Despite their efforts, Montgomery was pronounced dead at the Anne
Arundel Medical Center at 11:05 p.m. The medical examiner
determined that Montgomery died of antifreeze consumption and that
Montgomery had not consumed alcohol prior to his death. It appears
5
that Montgomery drank the antifreeze in what turned out to be a
successful suicide attempt.
Atwell was ultimately charged administratively in
connection with Montgomery’s death in proceedings before the Anne
Arundel County Police Department Hearing Board. Atwell was found
guilty of neglect of duty, unsatisfactory performance, and failure
to perform duties, among other charges. He was later terminated by
the Chief of Police. Atwell has been challenging his termination
in Maryland courts, unsuccessfully thus far. See Atwell v. Anne
Arundel County Police Dept., No. 964 (Md. Ct. Spec. App. Feb. 6,
2006).
Minina Montgomery, acting as personal representative of
Montgomery’s estate and individually as his widow, sued the County
and several individual officers, including Atwell and booking
officer Wellman. Her complaint alleges claims under 42 U.S.C.
§ 1983, the Maryland Constitution, and Maryland tort law. Counts
16 and 17 assert negligence claims against the County:
COUNT XVI - Wrongful Death
(Negligence Imputed to Anne Arundel County, Maryland)
418. The Plaintiff incorporates the allegations
contained in paragraphs 1 through 417 of the Complaint.
419. That Defendants . . . Wellman[] and Atwell[]
were acting in the scope of their employment on December
15, 2000.
420. That the aforesaid Defendants were performing
a ministerial act during their interaction with
Montgomery.
6
421. That the negligence of the above-mentioned
Defendants may be imputed to Anne Arundel County under
the doctrine of respondeat superior.
422. As the direct and proximate cause of the
aforesaid negligence, decedent Philip Montgomery suffered
a wrongful death.
423. As a result of the wrongful death of the
decedent, Minina D. Craig, individually, has incurred
medical and funeral bills and expenses, pecuniary losses,
loss of services, mental anguish, emotional pain and
suffering, loss of society, companionship, comfort, and
such other losses as are recognized at law.
WHEREFORE, the Plaintiff, Minina D. Craig,
individually, requests judgment against . . . Booking
Officer James R. Wellman[] and Officer Charles R. Atwell,
in the amount of $500,000.00, plus costs and interest,
which shall be satisfied by Anne Arundel County.
COUNT XVII - Survival
(Negligence Imputed to Anne Arundel County, Maryland)
424. The Plaintiff incorporates the allegations
contained in paragraphs 1 through 423 of the Complaint.
425. That Defendants . . . Wellman[] and Atwell
were acting in the scope of their employment on December
15, 2000.
426. That the aforesaid Defendants were performing
a ministerial duty during their interaction with
Montgomery.
427. The injuries to the decedent where such that
decedent could have brought suit; however, no action was
ever filed in his lifetime.
428. That the decedent, Philip Montgomery, suffered
excruciating pain during his period of incarceration by
the Anne Arundel County Police Department on December 15,
2000.
429. As a result of the acts of negligence of the
aforesaid Defendants, the decedent suffered conscious
pain and suffering prior to his death, and such other
injuries as are recognized at law.
7
WHEREFORE, the Plaintiff, Minina D. Craig, Personal
Representative of the Estate of Philip Montgomery, seeks
judgment against . . . Booking Officer James R. Wellman[]
and Officer Charles R. Atwell in the amount of
$500,000.00, plus costs and interest, which shall be
satisfied by Anne Arundel County.
J.A. 100-03.
On November 27, 2002, the defendants filed a motion to
dismiss. About six months later, on May 15, 2003, the district
court granted the motion in part but allowed Montgomery to pursue
her § 1983 and gross negligence claims against Atwell. In
dismissing counts 16 and 17 in their entirety, the court
incorrectly stated that Montgomery filed four counts (counts 16-19)
“sounding in gross negligence against the Individual Defendants and
the County” for wrongful death. J.A. 214. In fact, counts 16 and
17 asserted simple negligence and counts 18 and 19 asserted gross
negligence. The court’s mistake appeared to have little bearing on
its dismissal of counts 16 and 17, however. In dismissing these
counts, the court declared that the “County, an arm of the State,
is immune to suit for the tort of gross negligence.” J.A. 217.
On the same day, May 15, 2003, the court issued a
scheduling order that set a deadline of June 30, 2003, for motions
to amend the pleadings. The defendants filed their answers on May
27. On July 1 Montgomery filed a motion to reinstate counts 16 and
17 of the complaint against the County, specifically stating that
the counts were grounded in negligence, not gross negligence, and
that they were based upon the Maryland Local Government Tort Claims
8
Act (LGTCA), Md. Code Ann., Cts & Jud. Proc. § 5-301 et seq. On
August 15, 2003, the court denied the motion, again based on
sovereign immunity. The court observed that the LGTCA “requires
the local government to defend and indemnify an employee[, but it]
does not authorize a direct action against the local government.”
J.A. 234.
Several weeks later, on September 10, Montgomery filed a
motion for leave to amend counts 16 and 17 by removing all
references to the County. On October 27 the court ruled that it
would permit Montgomery to amend the complaint as to Atwell, but
not as to the other defendants (including Wellman), provided that
the Atwell amendment was filed by November 10. Montgomery
apparently did not understand the court’s October 27 order and
asked for clarification. On November 14 the court issued an order
explaining the rationale for its decision and giving Montgomery
“one final chance” to file the necessary amendment “and proceed on
a negligence claim” with respect to Atwell. J.A. 285. Montgomery
filed the amendment on November 26.
In January 2005 an eight-day jury trial was held on
Montgomery’s deliberate indifference, gross negligence, and
negligence claims against Atwell. On January 27 the jury returned
a verdict for Atwell on all counts. On January 31, 2005, the court
entered judgment for Atwell and for the County; costs were awarded
to Atwell, but not to the County. In dealing with costs, the court
9
determined that the situation concerning the County was “different”
because of the “vast difference in [its] financial resources vis-a-
vis [Montgomery’s]” and because the County bore some responsibility
for lengthening the litigation. J.A. 831. Montgomery appeals,
contending that the district court erred in dismissing the claims
against Wellman, refusing to allow an amended complaint against
Wellman, and allowing Atwell to “point the finger” at Wellman and
other officers at trial. The County cross-appeals the court’s
denial of its costs.
II.
Montgomery argues that the district court erred in
dismissing two sets of claims against Wellman: counts based on
deliberate indifference to Montgomery’s serious medical needs
(under § 1983 and the Maryland Constitution) and negligence. The
court correctly dismissed the deliberate indifference counts
against Wellman because the complaint made no allegation that
Wellman had any reason to believe that Montgomery was anything but
drunk. Absent such an allegation, Montgomery could not succeed on
a deliberate indifference theory against Wellman. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (explaining that an official
cannot be found liable for deliberate indifference unless he is
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists). We therefore affirm the
10
dismissal of the counts against Wellman based on deliberate
indifference to Montgomery’s serious medical needs.
Montgomery’s argument that the district court erred in
dismissing the negligence claims (counts 16 and 17) against Wellman
is also without merit. Counts 16 and 17 asserted claims against
the County, not Wellman. Although the court mischaracterized these
counts as sounding in gross negligence rather than simple
negligence, this mischaracterization apparently had no bearing on
its reasoning. In dismissing these counts, the court correctly
reasoned that the “County, an arm of the State, is immune to suit
for the tort of gross negligence.” J.A. 217. The principles of
sovereign immunity that barred Montgomery’s suit against the County
based on gross negligence likewise bar suit against the County
based on simple negligence. The district court therefore committed
no legal error in dismissing these counts.
Montgomery further argues that the district court erred
in construing the language of these counts as stating a claim
against the County. Focusing on language in counts 16 and 17 that
requests judgment against individual officers, Montgomery argues
that the counts actually state claims against individual officers,
not the County. This argument is inconsistent with Montgomery’s
subsequent motion to amend in which Montgomery sought to remove all
references to Anne Arundel County in the complaint and acknowledged
that “[t]hese amendments will remove Anne Arundel County’s defense
11
of governmental immunity in that Plaintiff is no longer proceeding
in counts XVI and XVII against Anne Arundel County in any manner
whatsoever.” J.A. 239 (emphasis added). This statement
essentially concedes that counts 16 and 17 pled negligence against
the county in the first instance. We therefore reject Montgomery’s
strained, after-the-fact effort to reinterpret counts 16 and 17.
III.
Montgomery next argues that the district court abused its
discretion by refusing to grant her leave to amend the complaint as
to Wellman. Because Montgomery filed her motion to amend the
complaint after the deadline set by the scheduling order for
amending pleadings, Federal Rule of Civil Procedure 16(b) applies.
Under Rule 16(b) a motion to amend a complaint filed after a
scheduling order deadline shall be granted only upon a showing of
“good cause.” Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262
F. Supp. 2d 618, 632 (D. Md. 2003). Rule 16(b)’s good cause
standard focuses on the timeliness of the amendment and the reasons
for its tardy submission; the primary consideration is the
diligence of the moving party. Id. at 631-32.
There is no good reason for Montgomery’s tardy submission
of the motion to amend. Even if Montgomery’s counsel initially
understood counts 16 and 17 as pleading negligence claims against
Wellman individually, the court’s May 15, 2003, order put them on
12
notice that, in the court’s view, the complaint did not state
negligence claims against individual defendants. Counsel
nevertheless made no effort to amend the complaint until July 1,
more than one month after the defendants filed their answer to the
complaint and a day after the scheduling order’s deadline for
motions to amend the pleadings. The court’s subsequent August 15
order denying Montgomery’s motion to reinstate counts 16 and 17
further alerted counsel that the counts did not properly state
negligence claims against individual officers. At that point in
the litigation, it should have been clear to Montgomery’s counsel,
who presumably understood basic principles of governmental immunity
under Maryland law, that Montgomery could have recovered for
Wellman’s alleged negligence only by stating a negligence claim
against Wellman individually, not against the County. See Martino
v. Bell, 40 F. Supp. 2d 719, 722-23 (D. Md. 1999). Nevertheless,
counsel waited several weeks, until September 10, to file the
motion to amend. In light of this delay, the district court was
correct to find no “good cause” to allow Montgomery leave to amend
the complaint.
IV.
Montgomery finally argues that the district court abused
its discretion by allowing Atwell to “point the finger” at Wellman
and other officers during trial. See Appellant’s Br. at 49. There
13
is no clear basis spelled out in Montgomery’s briefs for this
argument. Montgomery broadly contends that the district court made
erroneous evidentiary rulings but cites to no specific ruling.
Even if Montgomery could cite a specific ruling, however, she
cannot show that any of Atwell’s arguments at trial were unfairly
prejudicial to Montgomery. The district court allowed Montgomery
to introduce into evidence the County Hearing Board’s determination
that Atwell had neglected his duties. In response to this
compelling evidence of Atwell’s negligence, Atwell justifiably
sought to establish that he had been singled out for discipline by
the County and that the other officers who participated in the
arrest also determined that Montgomery was not in need of medical
treatment. Furthermore, Atwell argued more than once that he was
not “blaming” Wellman or anyone else. J.A. 531-32, 819.
Montgomery has not shown that she was unfairly prejudiced by
Atwell’s arguments at trial.*
V.
Because we are sustaining the district court in its
rulings, we need not address Montgomery’s argument that the case
*
On cross-appeal the County challenges the district court’s
denial of its costs as a prevailing party. The court’s alternative
reason for denying costs to the County -- that the County bears
some responsibility for prolonging the case –- is sufficient for us
to conclude that the court acted within its discretion.
Accordingly, we affirm on this issue.
14
should be remanded with instructions that it be assigned to a
different district judge.
The judgment of the district court is
AFFIRMED.
15