Smith v. Ray

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1518

AMANDA DEANNE SMITH,

Plaintiff – Appellant,

v.

R. R. RAY, Officer; UNKNOWN UNIFORMED CITY OF VIRGINIA
BEACH POLICE OFFICER; CITY OF VIRGINIA BEACH; ARMAND RUBBO,
Sergeant; JARVIS LYNCH, Sergeant; SCOTT STEIN, Officer; JAY
KEATLEY, MPO; JOHNNY MONTS, MPO; JAMES HEWLETT, MPO; TONY
F. BULLARD,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00281-RBS-JEB)

Argued: October 26, 2010 Decided: February 2, 2011

Before TRAXLER, Chief Judge, GREGORY, Circuit Judge, and
HAMILTON, Senior Circuit Judge.

Reversed in part, affirmed in part, and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Chief Judge
Traxler and Senior Judge Hamilton joined.

ARGUED: Darren Marshall Hart, HART & ASSOCIATES, PC, Richmond,
Virginia, for Appellant. Christopher Scott Boynton, OFFICE OF
THE CITY ATTORNEY, Virginia Beach, Virginia; James Arthur Cales,
III, FURNISS, DAVIS, RASHKIND & SAUNDERS, Norfolk, Virginia, for
Appellees. ON BRIEF: Thomas W. Ashton, HART & ASSOCIATES, PC,
Richmond, Virginia, for Appellant. Mark D. Stiles, Michael A.
Beverly, OFFICE OF THE CITY ATTORNEY, Virginia Beach, Virginia,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
GREGORY, Circuit Judge:

This appeal was taken by Amanda Smith, the plaintiff-

appellant, following the grant of summary judgment by the

district court in favor of Robert Ray, Armand Rubbo,

Jarvis Lynch, Scott Stein, Jay Keatley, Johnny Monts, and

James Hewlett, all law enforcement officers for the Virginia

Beach Police Department, and the City of Virginia Beach, the

defendant-appellees (hereinafter, collectively, “Defendants”).

Smith filed two separate, but closely related complaints

containing 42 U.S.C. § 1983 and state tort law claims against

overlapping groups of the above named Defendants as well as

against Tony Bullard, a private citizen. On appeal, we must

determine (1) whether the district court erred in “merging”

these cases and dismissing the first complaint following the

consolidation of the cases; (2) whether the court erred in

granting summary judgment as to the § 1983 claims contained

within Smith‟s second complaint; and (3) whether the court erred

when, after dismissing the federal claims contained within the

second complaint, it declined to retain jurisdiction over the

outstanding state law claims.

As explained below, we agree that the court erred in

merging the two cases. On remand, we direct the court to revive

the first complaint and the claims therein for further

proceedings consistent with this opinion. However, we affirm

3
the grant of summary judgment as to those federal claims

contained within the second complaint. We also find that the

court acted within its discretion as to its treatment of the

state law claims from the second complaint.

I.

A.

“We review de novo a district court‟s denial of summary

judgment, construing all facts and reasonable inferences in the

light most favorable to the nonmovant.” Nourison Rug Corp. v.

Parizan, 535 F.3d 295, 298 (4th Cir. 2008); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). We therefore

present the following recitation of facts in the manner most

favorable to Smith.

On the afternoon of September 21, 2006, Ray, a uniformed

police officer for the City of Virginia Beach, arrived at a home

on Adler Avenue to assist Bullard, a private citizen, with

finding T., Bullard‟s missing juvenile stepson. Bullard

believed that T. was staying at the Adler Avenue home, but was

told by its residents that T. was now at another house.

Arriving at the second address, Ray and Bullard looked

through a window and saw several young men standing together

inside the house. Bullard tentatively identified one of the men

as his stepson. Ray knocked on the door of the residence, and

4
heard “scurrying” sounds coming from inside. Smith opened the

door, and exited the house after being instructed to do so by

Ray.

Ray asked Smith for her name and age, and whether she was

the homeowner. Smith gave the officer her first name, her age,

then twenty-two, and explained that she was a guest. Ray then

asked Smith if T. was inside the house, and Smith answered that

T. was not there.1 Ray next asked for “Joel,” an adult

acquaintance of T. Smith said that Joel was there, and told Ray

to “Hold on.” As Smith turned away and opened the screen door,

Ray reached across her and shut it. Ray‟s sudden movement

startled Smith, and she took a small step away from the house.

Ray -- allegedly concerned that Smith was attempting to

flee -- grabbed her arm, and Smith struggled to get out of his

grip. A pocketknife fell onto the ground from her sweatshirt,

and Bullard kicked it away. Bullard, hoping to further assist

Ray, then kicked Smith‟s legs out from under her. Smith fell

onto her stomach, and Ray landed atop her back. Although Smith

admits to screaming profanities while attempting to get up, she

denies ever striking out at the officer.

1
Both Ray and Bullard claim that, throughout the encounter,
Smith appeared unfocused and intoxicated. Smith denies being
inebriated or otherwise unresponsive. No drug or alcohol tests
were ever performed on Smith.

5
 Ray then punched Smith three times on the right side of her

body. Soon, Officer Keatley arrived on the scene, and assisted

Ray with handcuffing Smith. Smith alleges that Ray then brought

her to her feet by grabbing her by the ponytail with enough

force to tear hair from her scalp.

Smith was then brought to Ray‟s police car, and searched by

him. While searching Smith, Ray asked whether she had any

weapons, and Smith admitted that she had a pocketknife. Unable

to find the pocketknife on her person, Ray walked back towards

the house to search for it. While Ray was looking for the

pocketknife, Smith was again searched by another police officer.2

Smith alleges that this second officer inappropriately touched

her breasts and penetrated her genitalia. Smith screamed for

help, but no one responded to her pleas. Upon finding the

knife, Ray returned to Smith.

The other officers, Hewlett, Monts, Stein, Rubbo, and

Lynch, all arrived at the scene after Smith was in handcuffs.

Ray then drove Smith to the police precinct. Ray told

Smith that she was under arrest for obstruction of justice, and

unlawfully carrying a concealed weapon. Smith was brought

before a magistrate judge, and charged with carrying a concealed

2
During an interview as a part of an internal police
investigation into the incident, Bullard also admitted that he
saw a second officer search Smith.

6
weapon. However, Smith was ultimately found not guilty of that

charge.

B.

On May 23, 2008, Smith filed a lawsuit in Virginia state

court against Ray and an Unknown Uniformed City of Virginia

Beach Police Officer (hereinafter the “Unknown Officer”), who

Smith now believes to have been Keatley. Within her complaint

were § 1983 claims for the alleged violation of her rights under

the Fourth, Fifth and Fourteenth Amendments, as well as state

tort claims. On June 18, Ray filed his answer and successfully

moved for the removal of the case to the United States District

Court for the Eastern District of Virginia, where it was

assigned number 2:08cv281 (hereinafter, the “281 case” or “281

Complaint”).

On September 22, 2008, Smith filed a second complaint in

the district court, thereby initiating another and ostensibly

separate lawsuit, which was assigned case number 2:08cv449

(hereinafter, the “449 case” or “449 Complaint”). This second

complaint contained allegations that the City of Virginia Beach,

and those officers present during the incident were all liable

for failing to act so as to prevent the violation of Smith‟s

constitutional rights by Ray and the Unknown Officer.

Specifically, the 449 Complaint included theories of bystander,

7
supervisor and municipal liability arising under § 1983. It

also contained state tort claims against Bullard.

On September 30, 2008, Smith filed and then withdrew an

Amended Complaint in the 281 case. The same day, she filed an

Amended Complaint in the 449 case (“First Amended 449

Complaint”). None of the claims asserted in the 281 case were

mentioned in the First Amended 449 Complaint.

On October 29, 2008, upon a motion from Smith, the district

court consolidated cases 281 and 449. In its consolidation

order, the court informed the parties that:

Counsel‟s future docket entries are to be made ONLY in
the LEAD CASE, Case No. 2:08cv281. COUNSEL‟S FUTURE
DOCKET ENTRIES are NOT to be “spread” to this member
case.

J.A. 23. In an effort to comply with this direction, on

November 18, 2008, Smith filed the Second Amended 449 Complaint

on the 281 docket. That same day, Defendants filed a Motion to

Dismiss in response to the First Amended 449 Complaint. J.A.

151, 155. However, by agreed order, the Motion was later deemed

filed in response to the Second Amended 449 Complaint. The next

day, the court ordered the Second Amended 449 Complaint stricken

from the record because, according to the court, it should have

been “designated as case number 2:08cv281.” J.A. 192, n.1.

On November 20, 2008, Smith moved for leave to file her

Second Amended 449 Complaint, which contained no references to

8
the original claims against Ray or the Unknown Officer. On

December 10, 2008, the district court granted an Agreed Order

asking that the Second Amended Complaint be deemed filed in the

consolidated case. Three days later, on December 12, the court

dismissed the 449 case without prejudice:

Pursuant to this agreed order plaintiff‟s Second
Amended Complaint was filed. As such the plaintiff‟s
Second Amended Complaint is the operative document for
purposes of these consolidated cases, and the court
will treat it as the sole active complaint in this
matter.

J.A. 334. By designating the Second Amended 449 Complaint the

sole operative pleading, the court effectively supplanted the

281 Complaint, and “merged” the two cases into one. Smith moved

the district court to reconsider its order, but the court denied

her motion. Similarly, the court denied a motion for relief

filed by Smith pursuant to Federal Rule of Civil Procedure

60(b).

The parties later filed opposing motions for summary

judgment. On February 13, 2009, a magistrate judge recommended,

after analyzing only those claims found within the Second

Amended 449 Complaint, that Defendants‟ motion for summary

judgment be granted, and that the court decline jurisdiction

over Smith‟s state law claims. The district court wholly

adopted the magistrate judge‟s recommendations. Smith

thereafter filed a timely appeal to this Court.

9
 II.

Smith challenges the district court‟s denial of her motion

for leave to amend, the denial of her Rule 60(b) motion and the

denial of her motion for reconsideration of the court‟s December

12, 2008 order, whereby the court concluded that the Second

Amended 449 Complaint was the “sole active complaint.” J.A.

355. The abuse of discretion standard governs appellate review

for all of these motions. See Nourison, 535 F.3d at 298 (“leave

to amend is reviewed for abuse of discretion”); United States v.

Holland, 214 F.3d 523, 527 (4th Cir. 2000) (“When a motion for

reconsideration is appealed, the standard of review is abuse of

discretion.”); Heyman v. M.L. Marketing Co., 116 F.3d 91, 94

(4th Cir. 1997) (“We review denials of Rule 60(b) motions for an

abuse of discretion.”).

The district court abused its discretion when it sua sponte

dismissed the 281 Complaint. “Although consolidation is

permitted as a matter of convenience and economy in

administration, it . . . does not merge the suits into a single

cause, or change the rights of the parties, or make those who

are parties in one suit parties in another.” Intown Properties

Management, Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168

(4th Cir. 2001) (citing Johnson v. Manhattan Ry. Co., 289 U.S.

479, 496-97 (1933)). Indeed, in granting the motion for

consolidation, the court correctly noted that it was

10
consolidating the cases for “any and all hearings and for trial

under case 2:08cv281,” but not for the purpose of combining the

pleadings. J.A. 8. Therefore, the original 281 Complaint

remains active, and was not amended or otherwise superseded by

the Second Amended 449 Complaint.

Accordingly, the court also erred in denying Smith‟s other

requests for relief. We therefore reverse the district court,

revive the 281 complaint -- as well as the § 1983 and state tort

claims against Ray and the Unknown Officer contained therein --

and remand for further proceedings below.

III.

Smith appeals the district court‟s grant of summary

judgment in favor of Defendants as to the § 1983 claims for

bystander, supervisor, and municipal liability within the Second

Amended 449 Complaint. We address each of these claims in

separate sections below, and we affirm the decision of the

district court. Because we find that Smith‟s indirect § 1983

liability claims fail, we will not discuss qualified immunity.

A.

We first address the bystander liability claims against

Defendants Hewlett, Lynch, Stein, Keatley, Monts, Ray, and

Rubbo. When considering a motion for summary judgment, “[i]t is

not our job to weigh the evidence, to count how many affidavits

11
favor the plaintiff and how many oppose him, or to disregard

stories that seem hard to believe. Those tasks are for the jury

. . . . [A] court should consider only whether there is a

genuine issue for trial.” Gray v. Spillman, 925 F.2d 90, 95

(4th Cir. 1991) (citing Anderson, 477 U.S. at 249-50). However,

even upon viewing the evidence in the most favorable light,

Smith has failed to demonstrate that a reasonable juror could

find any defendant liable for failing to prevent the alleged

violations of her constitutional rights.

Under the theory of bystander liability, an officer may be

liable only if he or she: “(1) knows that a fellow officer is

violating an individual‟s constitutional rights; (2) has a

reasonable opportunity to prevent the harm; and (3) chooses not

to act.” Randall v. Prince George‟s County, 302 F.3d 188, 204

(4th Cir. 2002). Given these guidelines, we must first decide

whether there was any constitutional violation as to each of the

three incidents identified by Smith: (1) the initial seizure,

(2) the use of excessive force, and (3) the sexual assault. We

therefore separately review these allegations, and the adequacy

of her bystander liability claims as to each.

i.

First, we find that Smith‟s constitutional rights were not

violated when she was stopped and detained by Ray on the front

doorstep of the home where she was an overnight guest. Absent

12
exigent circumstances, “[i]t is a „basic principle of Fourth

Amendment law‟ that searches and seizures inside a home without

a warrant are presumptively unreasonable.” Payton v. New York,

445 U.S. 573, 586-90 (1980). The standard for warrantless

seizure within a home is different from the one necessary for a

stop in a public space, id. at 587, and the curtilage of a home,

including the front doorway, is “entitled to the same level of

Fourth Amendment protection extended to the home, so that, as

with the home, probable cause, and not reasonable suspicion, is

the appropriate standard for searches of [or seizures within]

the curtilage.” Rogers v. Pendleton, 249 F.3d 279, 287 (4th

Cir. 2001). As an overnight guest, Smith was entitled to nearly

the same Fourth Amendment protections afforded the resident of

the house. Minnesota v. Olson, 495 U.S. 91, 98-100 (1990)

(“[T]he overnight guest[] . . . seeks shelter in another‟s home

precisely because it provides him with privacy, a place where he

and his possessions will not be disturbed by anyone but his host

and those his host allows inside.”).

Here, we need not address the level of protection Smith was

entitled to as a guest seized within the curtilage of a home.

This is because even assuming Smith were to be afforded the full

measure of Fourth Amendment protections, exigent circumstances,

specifically, the need to confirm the whereabouts of a runaway

child, would still have permitted Ray to stop or “seize” her for

13
further questioning. See, e.g., United States v. Taylor, 624

F.3d 626, 631-32 (4th Cir. 2010) (where an officer‟s concern for

the safety of a child provided him with sufficient exigent

circumstances to justify the warrantless intrusion into a home);

Hunsberger v. Wood, 570 F.3d 546, 555-57 (4th Cir. 2009) (a

reasonable officer could conclude that exigencies excused the

warrantless search of a home in order to locate a missing girl).

Although we must view the facts in the light most favorable

to Smith, we must also review the legitimacy of the seizure from

the perspective of a reasonable officer in Ray‟s position. See

Taylor, 624 F.3d at 631 (“An officer may enter the home if „the

exigencies of the situation make the needs of law enforcement so

compelling that the warrantless search is objectively reasonable

under the Fourth Amendment.‟” (quoting Mincey v. Arizona, 437

U.S. 385, 394 (1978))). Ray maintains that he stopped Smith

from reentering the home because she was uncooperative, appeared

to be intoxicated, had a concealed weapon, seemed evasive, and

was contributing to the delinquency of a minor. We therefore

address each of these bases for the stop.

The encounter began voluntarily as Smith opened the door of

the home to the officer and forthrightly answered all of his

questions. In response to a question about Joel, Smith told the

officer to “Hold on,” and turned to go back into the residence,

ostensibly to retrieve Joel. Smith acted in a manner consistent

14
with her intentions to assist Ray with his investigation. Cf.

Florida v. Bostick, 501 U.S. 429, 437 (1991) (“We have

consistently held that a refusal to cooperate, without more,

does not furnish the minimal level of objective justification

needed for a detention or seizure.”). At the moment Ray moved

to prevent Smith from reentering the house, he also had no

reason to suspect that Smith was in possession of a weapon.

Indeed, he did not become aware of the “weapon,” a pocketknife,

until after Smith was handcuffed.3 We also take as true Smith‟s

contention that she was coherent and not intoxicated when she

encountered Ray.

However, a reasonable officer still would have had a basis

for suspecting that Smith was contributing to the “delinquency

of a minor.”4 Bullard had identified T. as one of the young men

3
Smith maintains that her pocketknife did not fall within
the statutory definition of a weapon. Appellant‟s Br. at 32-33.
However, because we take as true Smith‟s contentions that Ray
was not aware of the instrument until after her seizure, this
distinction is irrelevant.
4
The crime of contributing to the delinquency of a minor is
defined under Code of Virginia § 18.2-371 as follows:

Any person 18 years of age or older . . . who . . .
willfully or contributes to, encourages, or causes any
act, omission, or condition which renders a child
delinquent . . . as defined in [Code of Virginia]
§ 16.1-228 . . . shall be guilty of a class 1
misdemeanor.

15
in the window of the house.5 A reasonable officer therefore

would have had some cause for suspecting that a missing child

was being harbored within the house. It does not matter that

Bullard later turned out to have been mistaken. In light of

this information, Smith‟s statements denying that the child was

present, her sudden turn back towards the home, and her attempts

to step away from Ray during his questioning could have led a

reasonable officer to believe that Smith sought to unlawfully

conceal T. from his concerned stepfather. See Code of Virginia

§ 16.1-228(5) (defining an “abused or neglected child” as any

child “without parental care or guardianship caused by the

unreasonable absence . . . of the child‟s parent, guardian,

legal custodian, or other person standing in loco parentis”).

Viewed objectively, these facts presented the exigent

circumstances necessary to justify the warrantless stop of

5
We also note that Ray did not illegally “search” the home
when he entered the property and peered through the window.
“[A] law enforcement officer‟s observations from a public
vantage point where he has a right to be and from which the
activities or objects he observes are clearly visible do not
constitute a search within the meaning of the Fourth Amendment.”
United States v. Taylor, 90 F.3d 903, 908 (4th Cir. 1996)
(citations and quotations omitted). Because Ray peered through
an un-obscured window to observe the home‟s interior, there was
no Fourth Amendment violation. See Katz v. United States, 389
U.S. 347, 351 (1967) (“What a person knowingly exposes to the
public, even in his own home or office, is not a subject of
Fourth Amendment protection.”).

16
Smith. Thus, because the stop was constitutional, no Defendant

was under any obligation to prevent it.

ii.

Next, we find that -- while Ray may be liable for the use

of excessive force against Smith -- because none of the other

defendants had any opportunity to intervene on her behalf, her

bystander liability claims again must fail.

While we find that the detention of Smith was

constitutional, the Fourth Amendment also bars police from using

excessive force during the course of a lawful seizure. Jones v.

Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). In order to

determine whether the force used by Ray was excessive, we must

look objectively as to whether a reasonable officer on the scene

would have used the same measure of force. Rowland v. Perry, 41

F.3d 167, 173 (4th Cir. 1994). We must examine the totality of

the circumstances from the perspective of a reasonable officer

at the time of the altercation, Graham v. Connor, 490 U.S. 386,

396 (1989); including the severity of the crime at issue,

whether the suspect posed an immediate threat to the safety of

the officer or others, and whether the suspect was actively

resisting arrest or attempting to evade arrest by flight, Jones,

325 F.3d at 527-28. We must then decide whether these

circumstances justified the level of force used. Id. at 396.

17
 On summary judgment, where there is a dispute as to the

underlying facts of the case, the courts are bound to accept as

true the version of the facts as presented by the non-movant,

Smith, not as alleged by the officer, Ray. Rowland, 41 F.3d at

174. It is particularly important to remember these

distinctions where, as here, there are conflicting accounts

concerning what the officer actually perceived with respect to

the suspect. Gooden v. Howard County, Md., 951 F.2d 960, 965-66

(4th Cir. 1992) (en banc). We therefore find that in its

summary judgment order, which was adopted in total from a report

issued by the magistrate judge, the district court incorrectly

looked only to the facts as alleged by Ray in his affidavit.

Upon proper review of the situation leading up to the

altercation, a reasonable juror could find that Ray used an

excessive amount of force in the seizure. Smith was not

suspected of committing a violent crime. Ray had no reason to

believe that T. -- while a missing child –- was under any

immediate threat of physical harm. From his perspective, Ray

had, only moments before, seen the child standing before a

window, unharmed and unrestricted, with other youths. Outside

of the understandable general worry about the exact whereabouts

of T., Bullard also never expressed any grave concern about his

stepson‟s safety.

18
 According to Smith, Ray was also not aware of the presence

of any possible weapon until after Smith was in handcuffs.

Smith further claims that she offered only minimal resistance

when the officer initially grabbed her arm. In response, Ray

tried to grab Smith, and sought Bullard‟s help in tripping her.

Smith was brought face down to the ground, and incapacitated by

the full weight of Ray atop her. It was at that moment that Ray

punched Smith in the side several times. Smith denies ever

striking out at or struggling with Ray while on the ground. Ray

then handcuffed and purportedly pulled Smith up from the ground

by her hair. Reviewing the totality of the circumstances, we

believe that a reasonable jury could find that the amount of

force used by Ray to subdue Smith was excessive in violation of

the Fourth Amendment.

We nonetheless agree with the reasoning of the district

court and magistrate judge as to the insufficiency of the

bystander liability claims. Keatley was the only officer

present at the time of the altercation. However, Smith admits

that Keatley did not arrive until she was being handcuffed, and

picked up from the ground. Thus, Keatley would not have been

present to witness the use of excessive force. None of the

other officers, Rubbo, Lynch, Stein, Monts and Hewlett, were

present for any part of the altercation. We therefore affirm

19
the grant of summary judgment as to Keatley, Rubbo, Lynch,

Stein, Monts and Hewlett.

iii.

Finally, while Smith has demonstrated that a reasonable

juror could find that she was sexually assaulted by the Unknown

Officer, she cannot show that Defendants were aware of the

alleged assault. Thus, we cannot find any Defendant liable as a

“bystander.”

A sexual assault by a police officer clearly violates the

security interests protected by the Fourth Amendment. Fontana

v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001). We must take as

true the allegations by Smith that such an assault occurred at

the hands of the Unknown Officer. We further note that

Bullard‟s statement that he witnessed a second officer search

Smith lends additional support to her allegations.

We also accept as true Smith‟s contention that she called

for help during the assault. Ray, Hewlett, Monts, Rubbo, and

Lynch all admit to being present at the scene. They also agree

that Smith was heard shouting. However, there is no indication

that these Defendants heard her screams as intelligible calls

for help. Nor is there any suggestion that the officers

deliberately chose not to assist Smith. We therefore agree with

the district court, and affirm the dismissal of the § 1983

20
bystander liability claims against Ray, Hewlett, Monts, Rubbo,

and Lynch.

In the absence of any evidence that Stein was even present

at the time of the assault, the claim against him also fails.

B.

Smith similarly does not present any genuine issues of

material fact as to her supervisory liability claims against

Rubbo. In § 1983 suits, neither municipalities nor superiors

can be held liable under theories of respondeat superior

liability. Monell v. Dep‟t of Soc. Servs., 436 U.S. 658, 694

(1978). However, a supervisor may be liable for the actions of

a subordinate if he had

(1) actual or constructive knowledge that his
subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional
injury to citizens like the plaintiff; (2) that the
supervisor‟s response to that knowledge was so
inadequate as to show deliberate indifference to or
tacit authorization of the alleged offensive
practices; and (3) that there was an affirmative
causal link between the supervisor‟s inaction and the
particular constitutional injury suffered by the
plaintiff.

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

omitted). A supervisor is deliberately indifferent where the

misconduct of the subordinate is “widespread, or at least been

used on several different occasions,” id., and the supervisor

continuously fails to act to correct the behavior in the face of

“documented widespread abuses,” Randall, 302 F.3d at 206.

21
 As stated above, the actions of some Defendants may have

violated the constitutional rights of Smith. However, in

response to these allegations, Rubbo ordered an investigation.

His response as a supervisor was appropriate, and the

investigation did not confirm any of Smith‟s allegations. As to

Ray, despite the evidence showing that he had been the subject

of some civilian complaints of excessive force, the subsequent

investigations failed to substantiate these claims. Rubbo was

not deliberately indifferent to these complaints as Ray was

investigated following each allegation. Thus, we affirm the

dismissal of the § 1983 supervisory liability claim.

C.

Moreover, the Monell claim against the City of Virginia

Beach also must fail. A municipality is liable under § 1983

where a policymaker officially promulgates or sanctions an

unconstitutional law, or where the municipality is deliberately

indifferent to the development of an unconstitutional custom.

City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). A

municipality is not liable for mere “isolated incidents of

unconstitutional conduct by subordinate employees . . . .

Rather, there must be numerous particular instances of

unconstitutional conduct in order to establish a custom or

practice.” Lytle v. Doyle, 326 F.3d 463, (4th Cir. 2003)

(quotations and citations omitted).

22
 Here, Smith has failed to present any convincing evidence

that a policy or custom has developed regarding the use of

excessive force, sexual assaults or any other unconstitutional

actions by officers. Thus, we affirm the district court‟s

dismissal on summary judgment of all claims against the City of

Virginia Beach.

IV.

Finally, the district court did not abuse its discretion

when it dismissed the state tort claims of the 449 case without

prejudice, and chose not to remand the claims back to state

court. Upon the dismissal of all of a party‟s federal claims, a

district court may choose to “dismiss the pendent state-law

claims without prejudice, remand the state-law claims to the

state court, or decide the merits of the state-law claims.”

Farlow v. Wachovia Bank of North Carolina, 259 F.3d 309, 316-17

(4th Cir. 2001) (emphasis added); see also United Mine Workers

v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are

dismissed before trial, . . . the state claims should be

dismissed as well.”). The district court was not obligated to

retain jurisdiction, and therefore its actions were not in

error.

23
 V.

The district court erred in merging the two cases and

summarily dismissing the original 281 Complaint, and we

therefore reverse that decision. Accordingly, consistent with

the findings of this opinion, we restore the § 1983 and state

law claims against Ray and the Unknown Officer contained

therein, and remand the 281 case to the district court for

further proceedings.

However, Smith lacked sufficient evidence to maintain any

of the § 1983 bystander, supervisory and municipal liability

claims of the 449 case against Defendants. Despite there being

sufficient evidence for a reasonable jury to find that Smith was

subjected to excessive force and a sexual assault, she cannot

show that either Ray, Rubbo, Lynch, Stein, Keatley, Monts, or

Hewlett were aware of or otherwise indirectly liable for these

constitutional violations under the above named theories. She

similarly lacks any evidence to sustain her claim against the

City of Virginia Beach. Finally, upon the dismissal of the

federal claims contained within the Second Amended 449

Complaint, we find no error in the court‟s refusal to continue

to hear the state law claims against Bullard from the same

complaint.

Therefore, the decisions of the district court are

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

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