David Goodman v. Z. Diggs ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-7315
DAVID GRAHAM GOODMAN,
Plaintiff - Appellant,
v.
Z. DIGGS, Sherriffs Deputy; T. MOISETT, Sergeant/Sheriffs Deputy; C. HAYES,
Deputy Sheriff; C. RESPASS, Sheriffs Deputy,
Defendants - Appellees,
and
KENNETH W. STOLLE, Sheriff/High Constable,
Defendant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, District Judge. (1:13−cv−00540−AJT−IDD)
Argued: December 10, 2020 Decided: January 28, 2021
Before KING, WYNN, and RICHARDSON, Circuit Judges.
Vacated and remanded by published opinion. Judge Wynn wrote the opinion, in which
Judge King and Judge Richardson joined.
ARGUED: Priya Datta, GEORGETOWN UNIVERSITY LAW CENTER, Washington,
D.C., for Appellant. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia,
for Appellees. ON BRIEF: Erica Hashimoto, Director, Maximilian Crema, Student
Counsel, Janae Staicer, Student Counsel, Appellate Litigation Program, GEORGETOWN
UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Lisa Ehrich, PENDER
& COWARD, PC, Virginia Beach, Virginia, for Appellees.
2
WYNN, Circuit Judge:
For years, plaintiff David Graham Goodman has pursued an Eighth Amendment
excessive force claim against correctional officers who he claims left him lying bleeding
and unconscious in a cell in 2012. We previously concluded that the district court erred in
dismissing Goodman’s complaint for failure to comply with a court order. Goodman v.
Stolle, 549 F. App’x 231, 232 (4th Cir. 2014) (per curiam) (citing Fed. R. Civ. P. 41(b)).1
After significant additional proceedings, during which time the case was reassigned to a
new judge, the district court granted summary judgment to the correctional officers.
The issue we confront in this appeal is whether the district court erred by granting
summary judgment to the officers without considering the evidentiary value of Goodman’s
verified original and first amended complaints after Goodman filed an unverified second
amended complaint. While this is an issue of first impression for this Court, we are
persuaded by guidance from other circuits to conclude that the district court erred and
therefore to vacate the district court’s order granting summary judgment. Further, on
remand, the district court should resolve Goodman’s discovery requests before taking a
fresh look at the officers’ summary judgment motion.
1
We also dismissed a second appeal for lack of appellate jurisdiction. Goodman v.
Stolle, 571 F. App’x 257 (4th Cir. 2014) (per curiam).
3
I.
A.
Throughout the proceedings before the district court, Goodman represented himself.
He filed three complaints. The original and first amended complaints, filed in 2013, were
each verified and notarized.2 But the second amended complaint, filed in August 2014, was
notarized but not verified. It differed from the first amended complaint only slightly,
naming previously unidentified officers and tweaking the relief sought. Goodman’s factual
allegations have otherwise been consistent throughout his three complaints.
The two verified complaints averred that Goodman is a mobility-impaired
individual who requires the assistance of a wheelchair or cane to ambulate. On November
7, 2012, prison officials transferred him from Chesapeake Correctional Center to Virginia
Beach Correctional Center in advance of a probation violation hearing. After the hearing,
2
A complaint is “verified” if it is “signed, sworn, and submitted under penalty of
perjury.” James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020); see also, e.g., Schroeder v.
McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) (explaining that a complaint is verified
if it states “under penalty of perjury that [its] contents [are] true and correct”).
While Goodman’s first amended complaint lacks the original’s explicit statement
that “I declare under penalty of perjury that all [the] foregoing is true and correct,” the
notary who notarized the first amended complaint indicated that the complaint was
“[s]worn.” Compare J.A. 19, with J.A. 48. Because it appears that a notarized document is
“sworn” in Virginia only if it is made under penalty of perjury, we conclude that
Goodman’s first amended complaint was also verified. See Off. of the Sec’y of the
Commonwealth, A Handbook for Virginia Notaries Public 13, 18 (Dec. 15, 2017)
https://www.commonwealth.virginia.gov/media/governorvirginiagov/secretary-of-the-
commonwealth/pdf/2017-December-15-revised-Handbook-.pdf (explaining that a
“sworn” notarial act requires the oath taker to swear or affirm that the sworn statement is
true and that an affirmation requires “a vow of truthfulness or fidelity on penalty of
perjury”). The officers do not contest that Goodman’s original and first amended
complaints are verified.
4
Goodman was returned to Virginia Beach Correctional Center, placed on a bench in a
holding area, and informed that he would be transported back to Chesapeake Correctional
Center the following morning.
The verified complaints further averred that Defendant Deputy C. Hayes instructed
Goodman to get into his wheelchair to be transported to Virginia Beach Correctional
Center’s medical area to spend the night. Goodman asked if he would be placed in a lower
bunk of the medical area and Hayes replied that Goodman would, in fact, be put on the
floor. When Goodman objected that he could not be housed on the floor due to his spinal
cord damage, Hayes “became angry,” “grabbed [him] by the neck of [his] jumpsuit,” and
dragged him about fifty feet across a concrete floor to a holding cell. J.A. 40.3 As Goodman
didn’t have his cane with him, he lay on the floor, unable to get up.
The verified complaints further averred that some time later, another officer not
party to this dispute helped Goodman back into a wheelchair for transportation to the
medical unit. Three officers—Defendants Corporal T. Moissett, Deputy Z. Diggs, and
Deputy C. Repass—began to transport him.4 While in transit, Goodman was somehow
dislodged from his wheelchair. Cursing, Moissett grabbed Goodman from the floor,
“slammed” him back down again, handcuffed him, and, with the help of Diggs, dragged
him another hundred yards to a new cell. J.A. 20.
3
Citations to “J.A.__” refer to the Joint Appendix filed by the parties in this appeal.
4
The spellings of two of Defendants’ names (Moissett and Repass) are inconsistent
in the record, briefs, and case caption. We employ the spellings used most frequently in the
Defendants’ Response Brief.
5
Finally, the verified complaints averred that once in the new cell, Moissett and
Diggs slammed Goodman into the floor, splitting his head open over his left eye. One of
the officers then removed Goodman’s handcuffs while Diggs stepped on his back and
Repass stood on his neck. As Goodman informed the officers of his disabilities, Repass
kneeled on his neck, ground his bleeding face into the floor, and pushed her thumb into a
pressure point behind his right ear. Goodman eventually lost consciousness. He lay in the
cell for approximately thirty minutes until a different officer found him and sent him to the
nurse. He was transferred back to Chesapeake Correctional Center before dawn the
following morning.
The officers’ account of the incident is quite different. They do not dispute that
Goodman was injured; the nurse’s notes reveal that he “was found laying on [his] left side
leaning against the wall with [his] head toward the back of the cell . . . with dark red blood
pooled on [the] floor around [his] face and crusted to [his] left brow bone/forehead.” J.A.
156. Rather, Defendants contend that Goodman was wholly uncooperative and that his
injuries were self-inflicted, including that he “purposefully threw his body out of [his]
wheelchair” and “sustained a small laceration to his left brow bone” by “purposefully
bang[ing] his head against [a] wall.” J.A. 250.
The nurse who treated Goodman recorded that he “expressed [an] interest in
viewing the videos [of the incident] for a lawsuit against those involved in the incident.”
J.A. 156. However, although the incident was captured by surveillance cameras, the video
footage was not preserved.
6
B.
Goodman repeatedly filed discovery requests to uncover information that he alleged
would corroborate his account. These efforts have largely been fruitless.5 For example, the
district court ordered Defendants to produce the video footage documenting the incident.
Instead, the officers submitted an affidavit claiming that their supervisors had reviewed the
footage, concluded that it did not evidence any use of excessive force, and permitted it to
be automatically overwritten.6 In the years that followed, Goodman repeatedly requested
additional discovery, seeking access to digital photographs of his injuries, his medical
records, and other documents. It does not appear that most of these requests were ever
considered.
The officers filed a motion for summary judgment in 2018, attaching in support
several records from Virginia Beach Correctional Center and affidavits from the officers
involved in the incident. Goodman opposed summary judgment, arguing that he still
needed discovery to prove his claim. He also explicitly referred to the allegations in his
complaints. He did not, however, submit any new materials to oppose summary judgment.
5
Goodman’s sole success came in June 2014, when the district court permitted him
to propound interrogatories to identify the officers involved in the incident.
6
We share the district court’s concern that supervisors at Virginia Beach
Correctional Center, after being made aware of the incident, would review the video and
then fail to preserve it. That action may warrant an adverse inference against the officers.
We are also disappointed with the officers’ invocation of the video in an attempt to bolster
their case for summary judgment. See, e.g., J.A. 249 (“Dep. Hayes notified one of the
Sergeants of the incident, and security camera footage was reviewed and confirmed Dep.
Hayes’ report of the incident.”). We do not view favorably this heads-I-win-tails-you-lose
attempt to wield the video to exculpate the officers without making it available to
Goodman.
7
Ignoring Goodman’s verified complaints, the district court viewed the officers’
materials as “uncontradicted” evidence that their conduct complied with the Eight
Amendment and that they “used the minimum force necessary to maintain order and to
secure Goodman’s compliance with their instructions.” J.A. 302. “Under th[ose]
circumstances,” the district court found “no suggestion . . . that the defendants applied force
to Goodman maliciously or sadistically.” J.A. 303. It therefore concluded that Goodman’s
Eighth Amendment claim failed and that the officers were entitled to summary judgment.
This appeal followed.
II.
On appeal (and now represented), Goodman argues that his two verified complaints
were affidavits for summary judgment purposes which created genuine disputes of material
fact as to his excessive force claim. Goodman also argues that “summary judgment was
premature in light of his pending discovery requests.” Opening Br. at 17. We agree on both
fronts.
We review the district court’s grant of summary judgment de novo, “using the same
standard applied by the district court.” Brooks v. Johnson, 924 F.3d 104, 111 (4th Cir.
2019) (quoting Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)). “In doing so, we
recognize that a court should grant summary judgment only if, taking the facts in the best
light for the nonmoving party, no material facts are disputed and the moving party is
entitled to judgment as a matter of law.” Id. (internal quotation marks and alteration
omitted). In contrast, we afford district courts wide latitude over matters related to
discovery, United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284,
8
290 (4th Cir. 2002), and review the decision to award summary judgment while discovery
requests are still pending for abuse of discretion, see McCray v. Md. Dep’t of Transp., 741
F.3d 480, 483–84 (4th Cir. 2014).
A.
We first consider whether the district court erred in disregarding Goodman’s
verified complaints and conclude that it did. “As a general rule, when one party files a
motion for summary judgment, the non-movant cannot merely rely on matters pleaded in
the complaint, but must, by factual affidavit or the like, respond to the motion.” Williams
v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). However, it is well established that “a verified
complaint is the equivalent of an opposing affidavit for summary judgment purposes, when
the allegations contained therein are based on personal knowledge.” Id. (citing Davis v.
Zahradnick, 600 F.2d 458, 459–60 (4th Cir. 1979) (per curiam)); see also World Fuel
Servs. Trading, DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 516 (4th Cir. 2015)
(same). Here, Goodman’s first two complaints fit the bill: they were verified, and they
contain detailed accounts of the incident based on his personal knowledge. The district
court therefore erred in not considering the verified complaints.
The officers—whose briefing on appeal is entirely unresponsive to Goodman’s
argument that his verified complaints create genuine issues of material fact—offer no
reason why we should not treat Goodman’s original and first amended complaints as
9
affidavits for summary judgment purposes.7 But Goodman, to his credit, raises a possible
wrinkle.
Ordinarily, an amended complaint supersedes those that came before it. See Young
v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001). Goodman’s second amended
complaint—the operative complaint here, which superseded the original and first amended
complaints—was not verified. That raises the question: should a verified complaint be
considered an affidavit for summary judgment purposes where, as here, that complaint has
been superseded by a later, amended complaint?
We have not directly addressed this question in a prior case, but we are persuaded
to adopt the reasoning of the Seventh Circuit’s decision in Beal v. Beller, 847 F.3d 897 (7th
Cir. 2017), wherein it considered the evidentiary value of a verified complaint that had
been superseded for pleading purposes by an amended verified complaint. In that case,
plaintiff Charles Beal, Jr., alleged that police officers subjected him to an unjustified stop-
and-frisk in violation of the Fourth Amendment. Id. at 899. The district court granted
summary judgment to the officers after finding that the tip they acted on was not
anonymous. Id. Stop-and-frisks that result from anonymous tips are harder to justify than
those that result from a tip from a known informant, id. at 900–01, so whether the informant
was known was key to the analysis.
7
“[S]uch an outright failure . . . would ordinarily result in waiver,” Alvarez v. Lynch,
828 F.3d 288, 295 (4th Cir. 2016), though we have the discretion to overlook the officers’
“inattention,” United States v. Holness, 706 F.3d 579, 592 (4th Cir. 2013).
10
Importantly, while Beal’s original verified complaint alleged that the officers told
him their tip was anonymous, his amended verified complaint did not. Id. at 901. The
Seventh Circuit held it was appropriate to consider Beal’s original, verified complaint as
evidence—including the key allegation—even though it had been superseded as a pleading,
because a verified complaint contains “factual allegations that if included in an affidavit or
deposition would be considered evidence, and not merely assertion.” Id. (quoting Ford v.
Wilson, 90 F.3d 245, 246 (7th Cir. 1996)). In other words, while the mere assertions of an
unverified pleading fall “out of the picture” when replaced by those of another complaint,
a superseded verified complaint still puts forward live factual allegations with evidentiary
value. Id. Thus, the Seventh Circuit concluded, a “verified complaint does not lose its
character as the equivalent of an affidavit just because a later, amended complaint, is filed.”
Id.Other circuits agree. The Ninth Circuit recently adopted Beal’s rule. Barnes v. Sea
Haw. Rafting, LLC, 889 F.3d 517, 532 (9th Cir. 2018) (agreeing that an “original complaint
‘does not lose its character as the equivalent of an affidavit just because a later, amended
complaint, is filed’” (quoting Beal, 847 F.3d at 901)). And the Eight Circuit has long treated
verified complaints as affidavits at the summary judgment stage, even when they are
followed by amended complaints. For example, in Hartsfield v. Colburn, a pretrial detainee
sued several defendants for deliberate indifference to his medical needs. 371 F.3d 454, 455
(8th Cir. 2004). On appeal, the plaintiff argued that the district court erred in granting
summary judgment to the defendants and specifically by “not considering his verified
original and amended complaints as affidavits.” Id. The Eighth Circuit agreed. Id. at 456.
11
Implicit in its decision to recognize his original complaint as an affidavit was an
understanding that a later filed complaint does not strip a verified complaint of its value as
an affidavit.8
We agree with the Seventh, Eighth, and Ninth Circuits and hold that an amended
complaint does not divest an earlier verified complaint of its evidentiary value as an
affidavit at the summary judgment stage. We conclude that the district court erred in
disregarding the evidentiary value of Goodman’s original and first amended complaints,
which were verified and based on Goodman’s personal knowledge, and were therefore the
equivalent of opposing affidavits.
This leaves the question of relief. Goodman asks us to reverse the district court’s
grant of summary judgment and remand for pretrial discovery and trial. Reversal would be
appropriate only if, in addition to concluding that the district court procedurally erred in
overlooking the verified complaints, we also concluded that those complaints placed
material facts in dispute, thereby making summary judgment inappropriate as a substantive
matter. But because the district court did not consider Goodman’s complaints, it has not
yet had a chance to weigh the complete record at summary judgment. We think it prudent
to vacate and remand for the district court to conduct this analysis in the first instance.
8
The Fifth Circuit appears to have taken a slightly different approach, allowing
superseded verified complaints to function as summary judgment evidence only if “the
amended complaint specifically refers to and adopts or incorporates by reference the earlier
pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Even under this more stringent
standard, Goodman’s verified complaints would be proper summary judgment evidence as
his second amended complaint refers to his previous complaints and prays for them to be
considered alongside his second amended complaint.
12
B.
Finally, we turn to Goodman’s unresolved discovery requests. As discussed above,
Goodman filed repeated discovery requests, which continued through the summary
judgment stage. In Goodman’s written opposition to Defendants’ motion, he asked the
district court to delay ruling on their motion until Goodman could review evidence
including digital photographs of his injuries, his medical records, and notes taken regarding
the incident. He also requested that the district court issue a subpoena to Chesapeake
Correctional Center and another prison for his medical records. In its summary judgment
decision, the district court denied Goodman’s motion for subpoenas as moot but did not
otherwise address his outstanding discovery requests. On appeal, Goodman contends that
the district court abused its discretion by granting summary judgment to the officers before
he had the opportunity to conduct sufficient discovery. We agree.
Rule 56 permits a party to file a motion for summary judgment “any time until 30
days after the close of all discovery.” Fed. R. Civ. P. 56(b). However, “summary judgment
should only be granted ‘after adequate time for discovery,’” McCray, 741 F.3d at 483
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)), and should be denied when
“outstanding discovery requests on material issues exist,” Raynor v. Pugh, 817 F.3d 123,
130 n.5 (4th Cir. 2016). This is because “[s]ummary judgment before discovery forces the
non-moving party into a fencing match without a sword or mask.” McCray, 741 F.3d at
483. Accordingly, we have not hesitated to vacate a grant of summary judgment issued
before adequate discovery has occurred. See, e.g., Ingle v. Yelton, 439 F.3d 191, 193, 196–
13
97 (4th Cir. 2006) (vacating grant of summary judgment against mother who sought to
discover if videotape existed of her son’s fatal encounter with the police).
Here, summary judgment was premature because outstanding discovery requests
existed on material issues. Goodman sought to discover photographs, records, reports, and
eyewitness testimony material to his Eighth Amendment claim. For instance, Goodman
contends that undiscovered photos and medical records exist showing he sustained multiple
serious injuries, including an injury to his hand requiring surgery. Such evidence is material
to an Eighth Amendment claim because evidence that Goodman suffered substantial injury
could suggest that the officers applied serious and unnecessary force, key components of
an Eighth Amendment excessive force inquiry. See Wilkins v. Gaddy, 559 U.S. 34, 37–38
(2010) (per curiam).
In response, the officers offer two counterarguments, neither of which is
persuasive.9 First, the officers argue that Goodman failed to properly alert the district
court—either through a formal Rule 56(d) affidavit, or the equivalent thereof—that further
discovery was needed before a decision on summary judgment was made.10 But “[w]e have
not insisted on an affidavit in technical accordance with Rule 56(d) ‘if the nonmoving party
9
Indeed, the officers may have abandoned these arguments. In a letter to the Court
following oral argument, they appear to concede that additional discovery would be
necessary if we conclude (as we do) that the district court erred in granting their motion for
summary judgment.
10
Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition [to summary
judgment], the court may: (1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate
order.” Fed. R. Civ. P. 56(d).
14
has adequately informed the district court that the motion is pre-mature and that more
discovery is necessary.’” Putney v. Likin, 656 F. App’x 632, 638 (4th Cir. 2016) (per
curiam) (quoting Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th
Cir. 2002)). “This is especially true where . . . the non-moving party is proceeding pro se.”
Id. Here, Goodman—who proceeded pro se before the district court—adequately informed
the district court that the officers’ motion for summary judgment was premature. The
district court was put on notice by Goodman’s repeated filings seeking discovery and, in
particular, by his opposition to summary judgment, which asked the court to delay ruling
until he could conduct discovery and contained a motion for the court to subpoena his
medical records.
Second, the officers argue that summary judgment was not premature because the
evidence Goodman sought to discover could not create a genuine issue of material fact. To
be sure, we have held that “a court may deny a Rule 56(d) motion ‘when the information
sought would not by itself create a genuine issue of material fact sufficient for the
nonmovant to survive summary judgment.’” Hodgin v. UTC Fire & Sec. Ams. Corp., 885
F.3d 243, 250 (4th Cir. 2018) (quoting Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014)).
However, because the district court did not address the majority of Goodman’s pending
discovery requests and did not consider the officers’ summary judgment motion on a
properly constituted record, we have no way of knowing whether the court would have
found that the sought-after information created a genuine dispute of material fact. We
decline to decide in the first instance whether the requested materials would have created
jury questions.
15
We therefore remand for the district court to consider Goodman’s discovery
requests alongside his verified complaints and the rest of the record evidence. As
Goodman’s discovery requests are scattered throughout the record and can be difficult to
follow, he may wish to seek leave of the district court to file a new master discovery motion
setting forth all matters he requests to discover and from whom he seeks that discovery.
III.
We conclude that the district court erred in granting summary judgment to the
officers without considering Goodman’s verified complaints and abused its discretion in
granting summary judgment before resolving Goodman’s repeated discovery requests. On
remand, the district court should determine what, if any, additional discovery is
appropriate. It should then consider afresh the officers’ summary judgment motion on the
full record, including Goodman’s verified complaints.
VACATED AND REMANDED
16