Carmona v. Toledo

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.

-2-
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

-3-
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.

-4-
 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.

-5-
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

-6-
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.

-8-
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

-9-
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

-10-
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.

-11-
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.

-12-
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

-13-
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

-14-
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

-15-
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.”

-16-
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

-17-
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.

-18-
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

-19-
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.

-20-
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

-21-
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

-22-
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

-23-
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).

-24-
 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).

-25-
 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

-26-
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

-27-
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.

-28-
 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

-29-
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.

-30-