United States Court of Appeals
For the First Circuit
No. 99-1246
CARMEN CARMONA, ETC., ET AL.,
Plaintiffs, Appellants,
v.
PEDRO A. TOLEDO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Iris Y. Valentín-Juarbe for appellants.
Leticia Casalduc-Rabell with whom Gustavo A. Gelpi,
Solicitor General, Edda Serrano-Blasini, Deputy Solicitor
General, and Roxanna Badillo-Rodriguez, Assistant Solicitor
General, United States Department of Justice, Federal Litigation
Division, were on brief for appellees.
June 16, 2000
CAMPBELL, Senior Circuit Judge. Plaintiff-appellants
appeal from the dismissal of their civil rights complaint
against two unnamed officers of the Police Department of the
Commonwealth of Puerto Rico and their supervisors. We hold that
the district court erred in allowing defendant-appellees’ motion
for summary judgment before discovery was reasonably complete,
as well as in denying plaintiffs’ motion to amend the complaint
to add the name of a newly identified officer. We remand for
further proceedings not inconsistent with this opinion.
I. BACKGROUND
Plaintiff-appellants Carmen Carmona and several of her
family members (collectively, “plaintiffs”) filed a complaint
for damages against two unnamed police officers and their named
supervisors.1 Plaintiffs alleged the following: on January 21,
1994, two police officers pursued a robbery suspect into
plaintiffs’ neighborhood. At the time, Carmona was in the house
with her two minor daughters, Enedi and Ileani. The officers
entered plaintiffs’ home by way of a door accessing the house
1
Plaintiffs include Carmona; her minor daughter, Enedi
Figueroa; Carmona’s husband and Enedi’s father, Javier Figueroa;
and Javier’s sons, Marcos and Omar Figueroa.
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from the back patio. They did not identify themselves or show
a search warrant. Once inside the enclosed back porch, they
drew their service guns and pointed them at Carmona and her
five-year-old daughter Enedi. The officers detained the two at
gunpoint for approximately twenty-five minutes. One of the
officers searched the home while the other continued to point
his gun at Carmona and Enedi. The officers did not find anyone
else in the home. They left without identifying themselves or
explaining their actions.
Plaintiffs brought suit pursuant to 42 U.S.C. §§ 1983
and 1988 and Articles 1802 and 1803 of the Puerto Rico Civil
Code, P.R. Laws Ann. tit. 31, §§ 5242 and 5243. They alleged
that the defendant officers violated their rights under the
Fourth, Eighth, and Fourteenth Amendments to the United States
Constitution by performing a warrantless entry of their home,
holding them at gunpoint, and searching their home. They
further alleged that the officers’ supervisors, Pedro A. Toledo,
the Superintendent of the Puerto Rico Police Department, and
Aida M. Velez, the Director of Human Resources (collectively,
“the supervisors”), deprived them of their rights by their
deliberate indifference in carrying out supervisory
responsibilities, permitting a pattern of illegal searches,
arrests, and misuse of firearms, failing to properly investigate
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such instances, and failing to adequately train and discipline
the offending officers.
The supervisors assert the following facts: on January
21, 1994, two armed individuals robbed a bank located near the
Rolling Hills Urbanization in Carolina, Puerto Rico.
Approximately fifty officers from the Puerto Rico Police
Department and the municipal police participated in the
resulting search. The police were able to track the suspects,
who were fleeing by car, by use of transponders fashioned to
look like currency bills. The transponders (known as the
“Pronet system”) emit an electronic signal received by police
cars, helicopters, and computers. Approximately an hour and a
quarter after the robbery, the police arrested a suspect in the
Rolling Hills Urbanization and recovered most of the stolen
money. Another suspect was apprehended shortly thereafter.
According to the supervisors, police investigation
procedures require that if the Pronet system locates the bills
at a residence, officers must explain the situation and acquire
verbal or written authorization from the resident before they
may conduct a search. Where the resident does not give
permission, police block the area while a search warrant is
sought.
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Later on January 21, 1994, the supervisors maintain,
Carmona filed a complaint with the Puerto Rico Police Precinct,
in which she alleged that an officer had entered her home during
the search for the bank robbers and held her at gunpoint. She
also contended that an interior wooden door was damaged.
Carmona was unable to identify the officer.
The supervisors contend that on May 5, 1994, in
response to Carmona’s complaint, the Deputy Superintendent of
Inspection and Disciplinary Affairs of the Puerto Rico Police
Department ordered an investigation. A member of the Bank
Robbery Division carried out the investigation, which included
interviews with several officers involved in the bank robbery
investigation, Carmona’s account of the events, criminal
proceedings reports, and Carmona’s neighbors’ written permission
to search their homes. Following the investigation, a written
report was rendered on July 12, 1994, concluding that there was
no evidence of wrongdoing on the part of the police.
According to the supervisors, no other civilian
complaints, either formal or informal, arose from the police
conduct in the investigation of the bank robbery.2 The police
investigation of Carmona’s complaint yielded statements from
2
According to the supervisors, some neighbors complained
about property damage caused by winds produced by the helicopter
used in the search.
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officers indicating that one of the suspects was apprehended
approximately two houses away from plaintiffs’ home, and that he
had hid between plaintiffs’ house and a neighbor’s house.
On January 11, 1995, plaintiffs filed their complaint
against the police officers and supervisors in the United States
District Court for the District of Puerto Rico, seeking damages
in the amount of $2,050,000.00. The supervisors moved to
dismiss the complaint and to stay discovery on July 26, 1995,
asserting that (1) plaintiffs had failed to state a claim under
the heightened pleading requirements for civil rights claims;
(2) the supervisors could not be liable in the absence of their
direct involvement, deliberate indifference, or intentional
failure to act; (3) plaintiffs failed to properly plead a Fourth
Amendment claim under an objective reasonableness standard; and
(4) plaintiffs Marcos, Omar and Javier Figueroa lacked standing
to sue under 42 U.S.C. § 1983. Plaintiffs opposed the motion,
arguing that it should be denied or at least deferred until
plaintiffs had the opportunity to conduct meaningful discovery,
including identifying the unnamed police officers. On September
12, 1995, plaintiffs served interrogatories and document
requests aimed at identifying the unnamed officers and
determining the circumstances of the incident. The
interrogatories included several categories of requested
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information: (1) the identities of each person who participated
in the search, had a supervisory role in the events, or who was
in the chain of command of those identified; (2) the production
of film, tapes or photographs of any part of the search or
anyone who participated in the search; (3) the search
participants’ previous incidents of excessive force or illegal
detention, search, seizure or arrest, and investigations or
lawsuits resulting therefrom; (4) police regulations or
guidelines governing officers’ warrantless entry and searches of
private residences and their use of service revolvers; and (5)
allegations of misuse of firearms, excessive force or illegal
search or arrest by any officer in the previous five years, and
any investigation, formal action or discipline resulting
therefrom.
The supervisors filed a motion for summary judgment on
February 6, 1996, asserting defenses already set forth in their
motion to dismiss as well as a defense of qualified immunity.
The motion was accompanied by an unsworn statement of
uncontested facts and an unsworn exhibit comprising the police
department’s file concerning the investigation of Carmona’s
complaint of January 21, 1994 (“the investigation file”). Based
upon their qualified immunity defense, the supervisors also
moved for a stay of discovery.
-7-
One day later, plaintiffs moved to compel discovery,
seeking the supervisors’ response to their interrogatories.
Defendants opposed that motion on February 16. No ruling on
this motion appears in the record before us.
On March 12, 1996, plaintiffs moved to strike the
exhibit comprising the investigation file on the ground that it
was inadmissible under Fed. R. Civ. P. 56(e) because it had not
been properly authenticated.3 On March 18, 1996, plaintiffs
opposed the motion for stay of discovery and requested, pursuant
to Fed. R. Civ. P. 56(f), that the summary judgment motion be
held in abeyance until discovery was completed. This filing was
accompanied by an affidavit by Carmona stating that plaintiffs
needed discovery in order to oppose the supervisors’ pending
motions. The supervisors opposed these motions.
On May 7, 1996, plaintiffs moved for leave to serve
additional interrogatories, noting that the supervisors had not
yet responded to their first set of interrogatories. The new
interrogatories included requests for information about, inter
alia, the Pronet system, the internal investigation of Carmona’s
complaint, and the procedures followed in entering residences
3On April 3, 1996, the supervisors filed a “Motion
Translating Tendered Exhibit to Motion for Summary Judgment,”
along with a document translating the investigation file into
English. This document also was unauthenticated.
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during the search. Plaintiffs also sought additional personnel
information about the officers who had participated in the
search, including promotions, demotions or firings, and
complaints about conduct similar to that alleged in this case.
The district court allowed plaintiffs’ motion for leave on May
10, 1996, and plaintiffs served their second set of
interrogatories on May 21, 1996. The supervisors sought
reconsideration of the court’s order, asserting that they were
entitled to a stay of discovery.
On September 19, 1996, the district court allowed the
supervisors’ motion for summary judgment. The court stated that
“Plaintiffs have neither adduced evidence by which to identify
the officers who allegedly searched [the] residence nor
explained why such evidence is not available.” It concluded
that “discovery can serve no purpose.”
On October 7, 1996, plaintiffs moved for
reconsideration, informing the court that Carmona had seen on a
television newscast one of the unnamed police officers who had
entered their home, and requesting additional discovery. They
submitted a sworn statement by Carmona setting forth some of the
events described in the complaint. In that statement, Carmona
identified one of the officers who allegedly entered her home as
an individual appearing in a still picture from a televised news
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report, which plaintiffs attached as an exhibit. She provided
a general physical description of the other unnamed officer, and
stated that she could identify him if shown a picture or
videotape.
On November 18, 1996, the district court, acknowledging
that the parties had been confused about whether or not to
proceed with discovery, set aside its September order and
judgment and issued a scheduling order for additional discovery.
The court stated that “plaintiffs’ counsel has presented a valid
argument about the fact that she was expecting responses to
discovery in order to oppose the dispositive motions.” On
January 14, 1997, the parties submitted a modified discovery
schedule, in which the supervisors agreed to answer both sets of
outstanding interrogatories and to identify the police officer
in the photo within thirty days. The court allowed that motion
on January 24, 1997.
On April 9, 1997, plaintiffs moved to compel discovery,
complaining that the supervisors had not provided the name of
the officer Carmona identified by photo, nor had answered any
other interrogatories. The motion was granted two days later,
allowing the supervisors fifteen days to comply. On May 8,
1997, plaintiffs moved for a default judgment as a sanction for
failing to comply with the discovery order. On May 15, the
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supervisors opposed the motion, stating that a draft of their
answers to interrogatories had already been submitted to police
authorities. The district court denied plaintiffs’ motion for
default judgment without prejudice.
On June 25, 1997, plaintiffs filed a second motion for
default judgment, asserting that the supervisors had continued
to fail to comply with the outstanding discovery requests, some
of which had been pending for nearly two years. Approximately
two months later, the supervisors served answers to the
interrogatories and gave proof of service to the court. 4 On
October 16, 1997, the district court denied plaintiffs’ motion
for default judgment, stating that the supervisors had
eventually responded to the discovery requests, albeit tardily.
The court announced its intention to again review the
supervisors’ summary judgment motion, and allowed plaintiffs
fifteen days to update their responses thereto.
On November 4, 1997, plaintiffs sought reconsideration
of that order and an extension of time, on the ground that
discovery still was not yet complete. Many of the answers to
interrogatories received in September, they contended, were
evasive or incomplete, and the supervisors (represented by new
4
The substance of their response does not appear in the
appellate record.
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counsel) had agreed to a new schedule for the completion of
discovery. Upon plaintiffs’ motion, the district court allowed
them until March 26, 1998, to respond to the supervisors’ motion
for summary judgment.
On January 22, 1998, the supervisors served amended
answers to interrogatories. In February, 1998, plaintiffs
notified the court that depositions of several police officers
had been scheduled.5 By March, 1998, the parties had filed
additional informative motions, some jointly, as to the status
of discovery. Nonetheless, on March 6, 1998, the district court
reiterated its order that plaintiffs must file their opposition
to summary judgment by March 26, 1998.
The parties continued to correspond about discovery,
and on March 16, 1998, the supervisors produced copies of some
personnel regulations and a manual on the use of firearms. On
March 17, the supervisors stated that they had not been able to
identify the unnamed officer appearing in the television report
despite having posted his photograph in two police buildings.
The parties filed a joint motion on March 26, 1998,
stating that “[c]ontrary to the Court’s understanding, discovery
has not concluded, there being several categories of documents
and information that the defendants will not produce absent
5It appears that these depositions did not take place.
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Court order.” The joint motion further stated that
“corresponding motions” would be filed within the next week and
requested more time for plaintiffs to respond to the summary
judgment motion. No motions for protective order or motions to
compel appear to have been filed.
The parties continued to correspond regarding various
discovery issues, and plaintiffs repeatedly pressed for further
responses to their requests. In April, 1998, plaintiffs served
requests for admissions, some of which went to the identity of
the police officer in the photo. In a letter dated June 3,
1998, the supervisors provided that officer’s name -- Frankie
Cruz Ocasio -- but did not formally respond to the requests for
admissions. On June 4, 1998, the supervisors produced documents
concerning police policies as well as pages of a log book for
January 21, 1994. Plaintiffs reiterated their pending discovery
requests for information about Officer Cruz by letter and
telephone in early July, 1998.
On July 3, 1998, the court reinstated its September 20,
1996, summary judgment in favor of all defendants, stating that
plaintiffs had not filed an opposition despite repeated
extensions of the deadline. On July 10, 1998, plaintiffs moved
for reconsideration, asserting that they had been hampered by
the supervisors’ refusal to respond to discovery requests. They
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also sought to amend the complaint to add the name of the
officer who had been identified. The supervisors opposed
plaintiffs’ motions, contending that plaintiffs could have
opposed summary judgment with the information they possessed at
the time. On January 12, 1999, the district court denied the
motion for reconsideration and for leave to amend the complaint.
Plaintiffs appeal from the July 1998 order of summary judgment
as well as the January 1999 order denying reconsideration and
amendment.
II. DISCUSSION
Plaintiffs articulate four arguments on appeal. First,
they contend that defendants did not carry their summary
judgment burden, notwithstanding plaintiffs’ failure to file any
timely opposition. Second, plaintiffs argue that the court
erred in allowing the supervisors’ summary judgment motion
before plaintiffs had the opportunity to complete sufficient
additional discovery under Fed. R. Civ. P. 56(f). Third, they
maintain that the court abused its discretion in denying
plaintiffs’ motion to leave to amend the complaint to add the
name of the newly identified officer. Finally, plaintiffs
contend that the court erred in dismissing their state law
claims with prejudice. We hold that the ruling on summary
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judgment was premature, and that plaintiffs should be permitted
to amend their complaint to include Officer Cruz.
A. Summary judgment
We review summary judgment de novo, construing the
record in the light most favorable to the nonmovant and
resolving all reasonable inferences in that party's favor. See
Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178,
184 (1st Cir. 1999). Plaintiffs contend that the moving party,
the supervisors, failed to carry their summary judgment burden
because the only documents supporting their motion were not
authenticated as required by Fed. R. Civ. P. 56(c). Absent a
valid affidavit or some other admissible evidence negating the
supervisors’ liability for the individual officers’ alleged
actions, plaintiffs argue that summary judgment should not have
been awarded, especially in light of the supervisors’
insufficient responses to plaintiffs’ discovery requests seeking
information about the identity of the two officers and the
supervisors’ role in training and supervising officers under
their command.
We agree that the supervisors’ failure to authenticate
precludes consideration of their supporting documents.
Documents supporting or opposing summary judgment must be
properly authenticated. See Fed. R. Civ. P. 56(e). “To be
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admissible at the summary judgment stage, ‘documents must be
authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e).’" Orsi v. Kirkwood, 999 F.2d 86, 92
(4th Cir. 1993) (quoting 10A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice & Procedure § 2722 at
382 (3d ed. 1998)); see also Cummings v. Roberts, 628 F.2d 1065,
1068 (8th Cir. 1980) (records attached to affidavit but not
certified as required by Fed. R. Civ. P. 56(e) not properly
considered by district court); Hal Roach Studios, Inc. v.
Richard Feiner and Co., Inc., 896 F.2d 1542, 1551 (9th Cir.
1989). Rule 56(e) requires that the affidavit be made on
personal knowledge, set forth facts that would be admissible in
evidence, and show affirmatively that the affiant is competent
to testify to the matters stated therein. Moreover, “sworn or
certified copies of all papers” referred to in the affidavit
must be attached. See id.
The supervisors did not file an authenticating
affidavit complying with Rule 56(e) to support their summary
judgment motion. Rather, they simply appended a purported copy
of the investigation file -- unsworn, uncertified, and, at
first, untranslated -- to the motion.6 Hence, neither the court
6Thereafter, the supervisors submitted a translated version
of the investigation file with a one-page “Motion Translating
Tendered Exhibit to Motion for Summary Judgment.”
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below nor this court may properly give any credence to the
investigation file in assessing the supervisors’ motion for
summary judgment. See Orsi, 999 F.2d at 92; Cummings, 628 F.2d
at 1068; Hal Roach Studios, 896 F.2d at 1551.
It is also true, however, that plaintiffs have produced
no evidence -- through affidavits, discovery responses or the
like -- from which a court or jury could determine, at trial,
that the defendant supervisors are themselves liable for the two
officers’ alleged misdeeds. In an action brought under § 1983,
supervisors are not automatically liable for the misconduct of
those under their command. A plaintiff must show an
“affirmative link” between the subordinate officer and the
supervisor, “whether through direct participation or through
conduct that amounts to condonation or tacit authorization.”
Camilo-Robles v. Zapata, 175 F.3d 41, 43-44 (1st Cir. 1999). In
this summary judgment record, there is no evidence that the
defendant supervisors failed adequately to train, supervise,
investigate, or discipline the offending officers.
Plaintiffs did present evidence which, if believed,
might suffice for a finding that the two police officers, though
not the supervisors, had invaded plaintiffs’ home and violated
their constitutional rights. In an affidavit attached to
plaintiffs’ motion for reconsideration following the district
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court’s first order awarding summary judgment against
plaintiffs, Carmona stated that none of the bank robbery
suspects entered her house; that two unnamed police officers
entered and searched her home without identifying themselves,
showing a search warrant, or seeking written authorization; that
they pointed their firearms at her and her child for
approximately twenty-five minutes; and that they did not find
the suspects in her home.7 Nothing in the record before the
district court, however, connected the defendant supervisors to
the two officers’ alleged misconduct.
A party moving for summary judgment bears the burden
of demonstrating the absence of a genuine issue of material fact
and that it is entitled to judgment as a matter of law. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); 10A
Wright, Miller & Kane, supra, § 2727 at 455-56 (3d ed. 1998).
The moving party is said to bear both the initial burden of
production and the ultimate burden of persuasion on the motion.
7
This affidavit was attached to a motion for
reconsideration, not an opposition to summary judgment.
However, under these circumstances, it still should be
considered part of the record. “An affidavit of a party that is
on file in the case will be considered by the court regardless
of the purpose for which it was prepared and filed.” 10A
Wright, Miller & Kane, supra, § 2722 at 378 (3d ed. 1998).
Hence, even though Carmona’s affidavit was submitted to support
a different motion, we take her sworn assertions as true in
evaluating the summary judgment record. See id.
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See 10A C. Wright, Miller & Kane, supra, § 2727 at 455-56, 487-
88. Where the moving party lacks the ultimate burden of
persuasion at trial, its initial burden of production is
conventionally satisfied in one of two ways. The movant may
affirmatively produce evidence that negates an essential element
of the non-moving party’s claim. See Adickes, 398 U.S. at 158.
Alternatively, the moving party may point to evidentiary
materials already on file -- such as answers to interrogatories,
affidavits, or portions of depositions -- that demonstrate that
the non-moving party will be unable to carry its burden of
persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).8 A moving party may not satisfy its initial
8 In Celotex, the plaintiff sued several asbestos
manufacturers, including Celotex Corp., alleging her husband's
death resulted from his exposure to products containing
asbestos. Thirteen of the defendants moved for summary
judgment, asserting that since Catrett had presented no evidence
that her husband was ever exposed to any products that contained
asbestos manufactured by the defendants, there was no genuine
issue of material fact. The Supreme Court held that in this
unusual situation, where neither party could prove either the
affirmative or the negative of an essential element of the claim
-- exposure to Celotex's products -- Celotex had met its burden
by showing that Catrett would not be able to meet its burden of
proof at trial. 477 U.S. at 322-23. Celotex met its burden by
stating that Catrett "had failed to identify, in answering
interrogatories specifically requesting such information, any
witness who could testify about the decedent's exposure to
[Celotex's] asbestos products." Id. at 320. The Court's
inquiry did not end there, however. By meeting its burden,
Celotex merely shifted the burden to Catrett to point to other
portions of the record that would show that there was indeed a
genuine issue of fact regarding the causation issue. Id. at
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burden of production in this latter manner, however, if the non-
moving party has not had adequate opportunity to discover
material facts supporting its claim:
The nonmoving party, of course, must have
had sufficient time and opportunity for
discovery before a moving party will be
permitted to carry its initial burden of
production by showing that the nonmoving
party has insufficient evidence.
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc.,
--- F.3d ----, 2000 WL 461462 at *5 (9th Cir. Apr. 25, 2000)
(internal citations and quotations omitted); see also Celotex,
477 U.S. at 326 (parties had conducted discovery, and no serious
claim could be made that non-moving party was “railroaded” by
premature motion for summary judgment). A nonmoving party, even
though having the ultimate burden at trial, may indeed have no
obligation to offer evidence supporting its own case unless the
moving party meets its initial burden of demonstrating the
absence of a genuine issue of material fact. See Adickes, 398
U.S. at 160; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991); High Tech Gays v. Defense Indus. Sec.
Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990).
The above principles are not always easily applied.
See 10A Wright, Miller & Kane, supra, § 2727 at 463 (3d ed.
327.
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1998). Courts are rightfully cautious about requiring a
defendant to effectively “prove a negative” in order to avoid
trial on a specious claim. See, e.g., BBS Norwalk One, Inc. v.
Raccolta, Inc., 117 F.3d 674, 677 (2d Cir. 1997); Guarino v.
Brookfield Township Trustees, 980 F.2d 399, 407 (6th Cir. 1992).
Thus, if the summary judgment record satisfactorily demonstrates
that the plaintiff’s case is, and may be expected to remain,
deficient in vital evidentiary support, this may suffice to show
that the movant has met its initial burden. On the other hand,
where, as here, plaintiffs’ case turns so largely on their
ability to secure evidence within the possession of defendants,
courts should not render summary judgment because of gaps in a
plaintiff’s proof without first determining that plaintiff has
had a fair chance to obtain necessary and available evidence
from the other party. Otherwise, defendants will be encouraged
to “stonewall” during discovery -- withholding or covering up
key information that is otherwise available to them through the
exercise of reasonable diligence.
Here, we think it premature to hold that the present
gaps in plaintiffs’ evidence of supervisory liability
necessarily demonstrate plaintiffs’ inability to establish an
issue of material fact. As discussed infra, the supervisors’
responses to plaintiffs’ discovery requests appear to have been
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meager, untimely, and incomplete. The paucity of information
produced and the information-gathering methods employed suggest
that the supervisors may have been holding back or, at the very
least, made only marginal efforts to uncover the requested
information. Despite plaintiffs’ Rule 56(f) motion and repeated
references to the incompleteness of discovery, the district
court did not make findings nor hold a hearing as to the
diligence and sufficiency of the supervisors’ responses. Before
ruling on summary judgment, we think that the district court
should have looked more carefully into those issues and
ascertained whether plaintiffs have received a full and fair
chance to discover relevant information in the hands of
defendants.
We realize that nearly three years elapsed between the
time plaintiffs served their first interrogatories and the
district court’s final entry of judgment. This period certainly
was long enough for the parties to have completed adequate
discovery. During this time, however, defendants were
extraordinarily slow to respond and seem to have been reluctant
to furnish the requested information. The supervisors took
nearly two years to serve responses to the original
interrogatories -- and these failed to identify the two unnamed
police officers who allegedly confronted Carmona and her
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daughters in plaintiffs’ home. It remains unclear whether
defendants acted with diligence and good faith in attempting to
identify those officers. Although the supervisors apparently
provided logs containing names of on-duty officers for the
relevant date, they seem not to have narrowed this information
by identifying which officers participated in the bank robbery
investigation. It seems incredible that defendants were unable
to come up with the identities of the two officers. This is not
to say that the supervisors did not exercise appropriate
diligence -- merely that the absence of information calls, on
its face, for further inquiry.
Moreover, twenty months elapsed between the time that
Carmona identified an officer in a photograph as one who entered
her home and the time that the supervisors provided his name.
The supervisors’ attempts to learn the officer’s name by simply
posting his photograph in two police buildings raises doubts as
to the seriousness of their identification efforts. After
defendants had, at long last, learned Officer Cruz’s identity,
they provided to plaintiffs only his name, badge number, and
division. Despite plaintiffs’ repeated requests, the
supervisors seem not to have supplemented their answers to
earlier interrogatories, as required by Fed. R. Civ. P. 26(e),
to provide information about Officer Cruz’s history, if any, of
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incidents of excessive force or illegal detention, search,
seizure or arrest; investigations or lawsuits resulting
therefrom, if any; his chain of command, i.e, to whom he
reported; or other personnel information. Nor do the
supervisors appear to have answered requests for admissions that
concerned Officer Cruz.
Furthermore, even the supervisors themselves seemed to
doubt that discovery was complete at the time the court ordered
plaintiffs to file their opposition to summary judgment. On
March 26, 1998, the day that plaintiffs’ opposition was due, the
parties filed a joint motion stating that “[c]ontrary to the
Court’s understanding, discovery has not concluded.“. The
parties noted that there were categories of documents and
information outstanding, and requested more time for plaintiffs
to respond to the summary judgment motion.9
9 The motion’s joint nature did not, to be sure, justify the
plaintiffs’ failure to pay heed to the court’s direction to
file an opposition to defendant’s motion for judgment. The fact
that plaintiffs failed to file a timely opposition does not,
however, require that the summary judgment be affirmed. See
Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir.
1990), and cases cited. Whether or not opposed, summary
judgment can only be granted "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also
Fed. R. Civ. P. 56(e) (if adverse party fails to respond,
"summary judgment, if appropriate, shall be entered") (emphasis
added).
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The adequacy of the supervisors’ response to
plaintiffs’ inquiries is a question of critical importance here,
where the information plaintiffs sought was under the
supervisors’ control.
[W]here the plaintiff's claim could only
succeed upon a showing of actual or
constructive knowledge on the part of
supervisory personnel and where facts solely
in the defendants' control were therefore at
the heart of the necessary proof, the
district court's failure to order compliance
with the plaintiff's request for . . .
discovery was an especially crippling blow.
Villante v. Department of Corrections of New York, 786 F.2d 516,
521 (2d Cir. 1986). As we have said, the supervisors’ failure
to identify the officers who allegedly committed the violation
is a matter of particular concern, as is their failure to
provide more information about the officer whose photograph
plaintiffs submitted. See Davis v. Kelly, 160 F.3d 917, 921 (2d
Cir. 1998), and cases cited (in § 1983 litigation, “courts have
rejected the dismissal of suits against unnamed defendants
described by roles . . . until the plaintiff has had some
opportunity for discovery to learn the identities of responsible
officials”) (citations omitted); Gordon v. Leeke, 574 F.2d 1147,
1152 (4th Cir. 1978) (if plaintiff did not know identity of
prison officers committing violation, court should have afforded
him opportunity to discover them from prison warden).
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The supervisors contend that plaintiffs have only
themselves to blame for not coming up with evidence to support
their claim. We leave this issue to the district court on
remand, but we are not persuaded, at least at this time, that
the fault lies with plaintiffs and their counsel. “When
discovery is appropriately initiated, the burden of compliance
lies foremost with the party from whom the discovery is sought.”
Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d
1198, 1206 (1st Cir. 1994). The record suggests that plaintiffs
have been reasonably diligent in pursuing their discovery
requests, including attempting cooperative resolution of
disputed issues and moving to compel discovery and for
sanctions. A party that seeks discovery expeditiously is not
obligated to “take heroic measures to enforce his rights against
a recalcitrant opponent.” See id. (plaintiff entitled to
additional discovery under Fed. R. Civ. P. 56(f) from defendant
before summary judgment could be adjudicated).
We are also unconvinced that much of the evidence that
plaintiffs requested is irrelevant to the issue of supervisory
liability, as the supervisors suggest. Whether an individual
officer had a record of claims of excessive force, improper
searches, or other related misconduct, as well as pertinent
performance and disciplinary history, is relevant to the
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allegations that the officer’s conduct was linked to the
supervisors’ failure to properly train, supervise, and
discipline him. See Barreto-Rivera v. Medina-Vargas, 168 F.3d
42, 49 (1st Cir. 1999) (“known history of widespread abuse
sufficient to alert a supervisor to ongoing violations" can
subject supervisor to liability even where he did not directly
participate in civil rights violation) (quoting Maldonado-Denis
v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994)).
Moreover, information as to training received by the officers is
obviously germane to the failure to train claim against the
supervisors. This is not to say that each and every one of the
requests was necessarily entitled to response. Some of the
information sought may be privileged or undiscoverable for
another legitimate reason. Such issues, however, need to be
raised and specifically addressed if relied upon to justify
defendants’ failure to respond.
For all these reasons, we conclude that the district
court erred in granting summary judgment without first making a
closer examination into the question of defendants’ diligence in
providing relevant information during the discovery process. We
therefore vacate the court’s award of summary judgment and
remand for further proceedings not inconsistent with this
opinion. We do not hold that plaintiffs are entitled to
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unlimited discovery or even that defendants are necessarily at
fault for their failure to have produced any particular pieces
of information. We hold only that the supervisors must timely
produce all material, non-privileged information under their
control, and they must act in good faith and with reasonable
diligence. Once the district court determines that defendants
have met their discovery responsibilities, it may then, if
plaintiffs’ case remains lacking in sufficient support,
determine that defendants have carried their burden on summary
judgment to establish the absence of a triable issue of fact.
Presently, however, this case requires additional and active
scrutiny by the district court to ensure that the supervisors
comply with their discovery obligations. Hence, we vacate the
order of summary judgment, and remand for further proceedings
not inconsistent with this opinion.
B. Leave to amend
On June 3, 1998, the supervisors provided Officer
Cruz’s name as the individual appearing in the photo.
Plaintiffs continued to seek additional information about
Officer Cruz after he was identified, and sought leave to amend
their complaint to add his name on July 10, 1998. The district
court denied that request, and plaintiffs now appeal from that
order.
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We review the district court's denial of leave to amend
the complaint for an abuse of discretion, and defer to the
district court “if any adequate reason for the denial is
apparent on the record." Grant v. News Group Boston, Inc., 55
F.3d 1, 5 (1st Cir. 1995). Under Fed. R. Civ. P. 15(a), leave
to amend shall be freely given when justice so requires.
Therefore, we will not affirm the denial unless there appears to
be an adequate reason for the denial, such as undue delay, bad
faith, dilatory motive on the part of the movant, or futility of
the amendment). See id. “Delay that is neither intended to
harass nor causes any ascertainable prejudice is not a
permissible reason, in and of itself to disallow an amendment of
a pleading.” Tefft v. Seward, 689 F.2d 637, 639 n.2 (6th Cir.
1982) (two-and-a-half year delay permissible); see also 6
Wright, Miller & Kane, supra, § 1488 at 659 (2d ed. 1990); Hurn
v. Retirement Fund Trust of Plumbing, Heating and Piping Indus.
of S. Calif., 648 F.2d 1252, 1254 (9th Cir. 1981).
We do not believe that plaintiffs’ conduct was so
dilatory as to deprive them of the opportunity to make use of
this long-sought-after identification and proceed with their
claims against Officer Cruz. See Island Creek Coal Co. v. Lake
Shore, Inc., 832 F.2d 274, 278 (4th Cir. 1987) (three-month
delay in seeking to amend complaint based on newly discovered
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facts not unduly long). Given that the claims against the
individual officers were pending since the inception of this
litigation and no new legal theories are involved in the
amendment, we do not perceive surprise or prejudice to
defendants nor any other reason for the district court’s denial
of plaintiffs’ motion to amend.10 See 6 Wright, Miller & Kane,
supra, § 1488 at 630-31 (2d ed. 1990). Accordingly, we reverse
that ruling.
Vacated and remanded for further proceedings not
inconsistent with this opinion.
10The district court did not explain its denial of
plaintiffs’ motion, and the supervisors do not address this
issue on appeal.
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