UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1101
CHRISTOPHER J. COVEY; LELA G. COVEY,
Plaintiffs - Appellants,
v.
ASSESSOR OF OHIO COUNTY; KATHIE HOFFMAN, Head Assessor; ROY
CREWS, Field Deputy; UNKNOWN ASSESSOR; OHIO COUNTY SHERIFF;
PATRICK BUTLER, Sheriff; ALEX ESPEJO, Corporal; RON WHITE,
Deputy; NELSON CROFT, Lieutenant; NICHOLE SEIFERT, Officer;
HNK, Unknown Officer; DLG, Unknown Officer; DEPARTMENT OF
JUSTICE; OHIO VALLEY DRUG TASK FORCE; OHIO COUNTY ANIMAL
SHELTER; DOUG MCCROSKY, Supervisor; UNKNOWN DOG WARDENS (2);
UNITED STATES OF AMERICA; ROBERT L. MANCHAS, S.A.,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cv-00147-FPS-JES)
Submitted: August 31, 2016 Decided: November 21, 2016
Before GREGORY, Chief Judge, and FLOYD and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Christopher J. Covey, Lela G. Covey, Appellants Pro Se. Thomas
E. Buck, Bruce M. Clark, Jr., BAILEY & WYANT, PLLC, Wheeling,
West Virginia; Edward Himmelfarb, Mark B. Stern, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Betsy C. Jividen, Erin
Carter Tison, Assistant United States Attorneys, Wheeling, West
Virginia; Lee Murray Hall, Sara A. Walling, JENKINS
FENSTERMAKER, PLLC, Huntington, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Christopher J. Covey and Lela G. Covey appeal the district
court’s order granting summary judgment to Defendants on their
claims under 42 U.S.C. § 1983 (2012), and Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
On the Coveys’ appeal of the district court’s dismissal of their
claims under Fed. R. Civ. P. 12(b)(6), we reversed and remanded
to the district court. Covey v. Assessor of Ohio Cty., 777 F.3d
186 (4th Cir. 2015). We concluded that “the Coveys have
sufficiently pleaded under § 1983 and Bivens that [Defendants]
Crews, Corporal Espejo, and Special Agent Manchas violated
clearly established law under the Fourth Amendment.” Id. at
198. On remand, the parties engaged in discovery and filed
motions for summary judgment. The district court granted
summary judgment to Defendants, and the Coveys timely appealed.
On appeal, the Coveys first argue that the district court
erred in denying their motion for default judgment because the
Defendants failed to file answers to their complaint until
several months after our remand. However, the district court
extended the deadline for Defendants to file their answers, to
which the Coveys did not object. Nor do the Coveys assert on
appeal any error in the extension of time granted by the
district court. Moreover, the Defendants had filed motions to
dismiss and otherwise vigorously litigated the case after remand
3
and filed their answers within the deadline established by the
district court. Accordingly, we conclude that the district
court correctly denied the Coveys’ motion for default.
The Coveys next challenge the district court’s finding that
their only surviving claims were their § 1983 claims against
Hoffman, Crews, the unnamed assessor, and Espejo, and their
Bivens claim against Manchas, arguing that all of their claims
survived the first appeal. “[T]he mandate rule forecloses
litigation of issues foregone on appeal.” United States v.
Pileggi, 703 F.3d 675, 679 (4th Cir. 2013) (internal quotation
marks, emphasis, and ellipsis omitted). Under this rule, “any
issue that could have been but was not raised on appeal is
waived and thus not remanded.” Doe v. Chao, 511 F.3d 461, 465
(4th Cir. 2007) (internal quotation marks omitted). It is well-
established that a party’s failure to raise a claim in the
opening brief “triggers abandonment of that claim on appeal.”
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999). This Court reviews the district court’s interpretation
of the mandate de novo. Pileggi, 703 F.3d at 679.
In Appellants’ first appeal, their counseled brief argued
that Espejo, Manchas, and the data collector who visited them
violated the Fourth Amendment; Appellants expressly abandoned
their claims regarding the events that followed the issuance of
a search warrant. Upon review of the Coveys’ filings in their
4
first appeal, we conclude that the district court correctly
ascertained this Court’s mandate, and limited the Coveys’ claims
accordingly.
Appellants next argue that the district court erred by
denying their request to amend their complaint to add two named
assessors. The district court denied leave to amend as futile
because the proposed amendment did not relate back to the filing
of the original complaint and would therefore be barred by the
statute of limitations. Because the Coveys did not make their
request to amend the complaint until well after Appellees served
their motions to dismiss, this amendment was permissible “only
with the opposing party’s written consent or the court’s leave.”
Fed. R. Civ. P. 15(a)(2). “The court should freely give leave
when justice so requires.” Id. Accordingly, “[a] district
court’s denial of leave to amend is appropriate when (1) the
amendment would be prejudicial to the opposing party; (2) there
has been bad faith on the part of the moving party; or (3) the
amendment would have been futile.” Drager v. PLIVA USA, Inc.,
741 F.3d 470, 474 (4th Cir. 2014).
“Where the statute of limitations bars a cause of action,
amendment may be futile and therefore can be denied.” United
States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000). “When
proposed claims in an amendment are barred by the statute of
limitations, Rule 15(c) provides for the relation back of
5
amendments to the original pleading under certain
circumstances.” Id. As relevant here, Rule 15(c)(1) requires
that the party to be added to the action received timely notice
of the action and “knew or should have known that the action
would have been brought against it, but for a mistake concerning
the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii).
“The question is not whether the amending party knew or should
have known the identity of the proper defendant, but whether the
potential defendant knew or should have known that it would have
been named as a defendant but for an error.” Wilkins v.
Montgomery, 751 F.3d 214, 224 (4th Cir. 2015) (quoting Krupski
v. Costa Crociere, 560 U.S. 538, 548 (2010)) (brackets,
ellipses, and internal quotation marks omitted). Although the
statute of limitations is an affirmative defense that must be
established by the defendant, Goodman v. Praxair, Inc., 494 F.3d
458, 464 (4th Cir. 2007), when relation back is required to
satisfy the statute of limitations, the burden is on the
plaintiff to prove that Rule 15(c) is satisfied. W. Contracting
Corp. v. Bechtel Corp., 885 F.2d 1196, 1200 (4th Cir. 1989).
“Generally, we review a district court’s denial of a motion
for leave to amend for abuse of discretion. But where, as here,
the district court denied such a motion on grounds of futility,
we employ the same standard that would apply to our review of a
motion to dismiss.” United States ex rel. Ahumada v. NISH, 756
6
F.3d 268, 274 (4th Cir. 2014) (citation omitted). The record
indicates that Appellants timely served the Assessor’s office,
Hoffman, and Crews with a complaint that alleged facts that
plainly indicated that Appellants would have named the two
assessors as defendants had they known that the assessors were
the data collectors who visited their house on October 21, 2009.
Thus, if the assessors were made aware of the contents of the
complaint against their employer and supervisors, they would
have known that they would have been named as defendants but for
an error, and the claims against them would relate back to the
filing of the original complaint. However, there is no evidence
indicating when the assessors learned of the contents of the
complaint, and the affidavit of one of the assessors, which was
not written until December 17, 2015, is silent on this issue.
Because Appellants failed to show that the assessors they sought
to add as defendants had timely notice of the suit, as required
by Rule 15(c), we affirm the district court’s denial of their
request to amend.
Finally, the Coveys argue that the district court erred by
granting summary judgment to Hoffman, Crews, Espejo, and
Manchas. We review a district court’s order granting summary
judgment de novo. Harris v. Norfolk S. Ry. Co., 784 F.3d 954,
962 (4th Cir. 2015). Summary judgment is appropriate if “there
is no genuine dispute as to any material fact and the movant is
7
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In determining whether a genuine issue of material fact
exists, this Court “view[s] the facts and all justifiable
inferences arising therefrom in the light most favorable to
. . . the nonmoving party.” Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015) (internal
quotation marks omitted).
The Coveys challenge several of the district court’s
findings related to the assessors’ visit, and argue that the
assessors should reasonably have known not to approach their
house because a state statute provides that assessors are not to
enter property marked with “No Trespassing” signs, and that the
assessors conducted an unreasonable search of the curtilage of
their home. Appellees respond that these issues are irrelevant
because the district court granted summary judgment to Hoffman
and Crews based on the undisputed fact that they were not
present for this visit. Because there is no evidence that
Hoffman and Crews were involved in the challenged search, we
affirm summary judgment for Hoffman and Crews.
The Coveys also challenge the district court’s finding that
Espejo and Manchas did not conduct an illegal search. They
primarily argue that the district court’s finding that Espejo
and Manchas saw Mr. Covey on the back patio before they exited
their vehicle fails to construe the facts in the light most
8
favorable to them. Our review of the record, particularly the
photographs produced in discovery that clearly show that the
patio was visible from the driveway, lead us to conclude that
there is no genuine dispute that the officers could see the
patio as they approached the house. Both officers attested that
they saw Mr. Covey at the patio as they drove up the driveway.
Mr. Covey’s testimony that this was not possible because he
would have heard the vehicle approaching if he had been outside
at the time was speculative, as he acknowledged that he walked
in and out of the patio door frequently during the relevant time
period. His testimony does not create a dispute of material
fact on this point. Thus, while the exact point at which the
officers saw Mr. Covey is disputed, there is no evidence that
they did not see him prior to stepping off of the driveway and
approaching the patio.
Appellants next argue that Espejo and Manchas conducted an
improper curtilage search after detaining Mr. Covey when they
approached the back patio to inspect the marijuana and look into
the basement to verify that the Coveys’ pet raccoon was caged.
The district court did not address this issue beyond noting in
its factual findings that Espejo and Manchas saw and smelled the
marijuana when they exited their vehicle. We conclude that this
argument is without merit. In our earlier consideration of this
case, we recognized that “[i]f the officers first saw Mr. Covey
9
from a non-curtilage area, they may well prevail under the
knock-and-talk exception at summary judgment.” Covey, 777 F.3d
at 193. Appellants do not dispute that Manchas and Espejo
smelled marijuana and saw it on the patio workbench when they
exited their vehicle and walked toward Mr. Covey. Unlike the
situation in Florida v. Jardines, 133 S. Ct. 1409 (2013), the
officers did not introduce any detection equipment into the
curtilage, but identified contraband using only their own
senses. The odor of marijuana provided probable cause to
believe that marijuana was present, and justified a search of
the curtilage. United States v. Lewis, 606 F.3d 193, 198 (4th
Cir. 2010); United States v. Humphries, 372 F.3d 653, 658 (4th
Cir. 2004) (“We have repeatedly held that the odor of marijuana
alone can provide probable cause to believe that marijuana is
present in a particular place.”). Moreover, Manchas’ brief look
into the basement to verify that the Coveys’ pet raccoon was in
fact caged was a legitimate, limited search for officer safety
purposes, and did not offend the Fourth Amendment. See Maryland
v. Buie, 494 U.S. 325, 336-37 (1990) (permitting a limited
protective sweep supported by a reasonable belief, based on
specific and articulable facts, that the area to be swept
harbors an individual posing a danger to the officers); United
States v. Jones, 667 F.3d 477, 484 (4th Cir. 2012) (“The
linchpin of the protective sweep analysis is not the threat
10
posed by the arrestee, but the safety threat posed by the house,
or more properly by unseen third parties in the house.”
(internal quotation marks and brackets omitted)). We conclude
that the district court correctly found that the officers did
not violate the Coveys’ Fourth Amendment rights.
We have considered the Coveys’ remaining arguments and
conclude that they are also without merit. Accordingly, we
affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
11