UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1315

DEBORAH JEAN INGLE, Administrator of the

Estate of Christopher James Burt Ingle,

Plaintiff - Appellant,

versus

MIKE YELTON, in his official and individual

capacities; CHRIS YOUNG, in his official and

individual capacities; JOE JOHNSON, in his

official and individual capacities; CITY OF

ASHEVILLE,

Defendants - Appellees.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (1:03-cv-00199)

Argued: January 31, 2008 Decided: February 14, 2008

Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Kyle William King, Weaverville, North Carolina, for

Appellant. Rendi Lynn Mann-Stadt, MCGUIRE, WOOD & BISSETTE, P.A.,

Asheville, North Carolina; Frederick S. Barbour, BARBOUR LAW FIRM,

P.L.L.C., Asheville, North Carolina, for Appellees. ON BRIEF:

Curtis W. Euler, OFFICE OF THE CITY ATTORNEY FOR THE CITY OF

ASHEVILLE, Asheville, North Carolina, for Appellees.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Deborah Ingle brings this appeal challenging the district

court’s denial of two discovery motions and grant of summary

judgment against her. We affirm.

I.

A.

We have previously considered this case, and we refer to our

prior opinion for a more detailed factual account of the incident

and the procedural history. See Ingle ex rel. Estate of Ingle v.

Yelton, 439 F.3d 191, 193-94 (4th Cir. 2006).

Shortly after 3 a.m. on July 15, 2001, Christopher Ingle shot

his father and sister with a shotgun. (Both were hospitalized but

survived). Christopher then fled in his father’s truck. Through

a series of radio transmissions, the officers of the Asheville

Police Department (“APD”) learned that a suspect had shot and

injured two people and had fled in a red Ford, dual axle pickup

truck. A highspeed chase ensued, ending in the parking lot of a

hotel.

Several law enforcement officers submitted affidavits about

the incident that followed. Together, these affidavits present a

coherent and consistent account. Christopher stopped the truck in

the parking lot and began to get out of the truck. He then lunged

inside, grabbed the shotgun, and aimed it at Officer Jones. As
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backup arrived, Christopher got back in the truck and reversed past

the hotel’s main entrance. Christopher then came to a stop.

Officer Mike Yelton ordered him to drop his gun. Christopher

lowered the barrel of his shotgun so that it pointed at some of the

officers. Officers Yelton, Chris Young, and Joe Johnson then fired

at him, and six of the rounds struck and killed him. By the time

the shooting occurred, several law enforcement vehicles were parked

in the driveway or at the entrance of the parking lot.

Deborah Ingle (“Ingle”), Christopher’s mother and the

administrator of his estate, filed this action against Officers

Yelton, Young, and Johnson (“defendants”) under 42 U.S.C. § 1983

and N.C. Gen. Stat. § 28A-18-1 and -18-2. The defendants filed a

motion to dismiss, or in the alternative for summary judgment.

Ingle responded by filing a Rule 56(f) motion seeking further

discovery and production of any videotape evidence of the chase and

shooting. She also challenged the motion for summary judgment.

The district court denied the Rule 56(f) motion, finding that

the “record appears to be complete as to the perceptions of the

officers.” The district court held that the defendants were

entitled to qualified immunity and granted the defendants summary

judgment. Ingle ex rel. Estate of Ingle v. Yelton, 345 F. Supp. 2d

578 (W.D.N.C. 2004).

On appeal, we reversed the district court’s denial of Ingle’s

Rule 56(f) motion and vacated the grant of summary judgment. See
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Ingle, 439 F.3d at 196-98. The APD had begun installing cameras in

its vehicles several months before the incident. Although Ingle

could not determine whether any of the vehicles present that night

had cameras installed, the new policy provided sufficient basis to

conclude that a videotape of the incident might exist. Such a

videotape might have provided Ingle with an opportunity to

contradict the affidavits upon which the district court relied.

For this reason, we remanded for further discovery as to the

existence of a videotape of the incident; our mandate specifically

noted that the district court could reconsider the defendants’

motion for summary judgment again after completion of discovery.

Id. at 197.

B.

On remand, the district court ordered the parties to engage in

discovery as to the existence and contents of any possible

videotapes. During discovery, the defendants provided affidavits

from the officers known to be on the scene at the time of the

incident, and all denied having any operational camera in their

vehicles. The defendants also provided affidavits from the Captain

of the Sheriff’s Department and from the investigating officers of

the State Bureau of Investigation (“SBI”). In these affidavits,

all officers denied having any videotape of the incident or any

knowledge of such a videotape. Lieutenant Don Babb performed an

internal investigation, and during his deposition he testified that
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he had thoroughly searched the evidence room, exhausted all leads,

and found no evidence of a videotape. The district court extended

discovery twice, so Ingle had ninety days to discover information

on the videotapes.

After the close of discovery, Ingle filed a motion to compel

the City to provide identifying information for all police vehicles

equipped with video cameras on that date. After a hearing on the

matter, the district court denied Ingle’s motion to compel.

Ingle then filed a motion, pursuant to Rule 56(f), to engage

in additional discovery. Ingle sought to listen to an audiotape of

the police radio communications from that night and to depose

Officer Fowler in light of photographic evidence revealing an

object on top of her dashboard, suggesting that her vehicle might

have contained a camera. The district court denied discovery on

the audiotape and ordered the defendants to provide specific

information about Officer Fowler’s vehicle and whether it contained

a camera. The defendants explained that Officer Fowler’s vehicle

had contained a radar unit and it appeared in the photograph.

Officer Fowler also provided an affidavit explaining that she had

been using radar, not a camera. The court then denied the Rule

56(f) motion.

After the close of discovery, the district court granted the

defendants’ motion for summary judgment on the basis of qualified

immunity.
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II.

On appeal, Ingle initially asserts that the district court

erred in denying her motion to compel and her Rule 56(f) motion.

We review both of these rulings for an abuse of discretion, because

the scope and conduct of discovery lie within the sound discretion

of the district court. See, e.g., Nguyen v. CAN Corp., 44 F.3d

234, 242 (4th Cir. 1995) (Rule 56(f) motion); Erdmann v. Preferred

Research, Inc. of Georgia, 852 F.2d 788, 792 (4th Cir. 1988)

(motion to compel).

A.

Ingle argues that the district court should have extended

discovery to identify all police vehicles equipped with video

cameras on the night of the incident. Ingle contends that the

officers known to be at the scene, the investigating officers of

the SBI, and the APD’s internal investigators might have overlooked

or failed to identify an officer and vehicle on the scene. Under

this theory, an unidentified officer in an unidentified vehicle

might have recorded the incident. Ingle also presented the

testimony of Cheryl King. During her testimony to the court, King

stated that she was shown a videotape of the incident, and although

someone obscured her vision during the crucial moments of the

shooting, she knows that a videotape exists. Although King cannot

identify who showed her the tape, where they showed it to her, or

what has become of the tape she viewed, Ingle contends that King’s
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testimony establishes that a videotape of the incident exists, and

it must have been produced by an APD camera.

Under Federal Rule of Civil Procedure 26, a plaintiff may

obtain discovery regarding any nonprivileged matter that is

relevant to the claim. Fed. R. Civ. P. 26(b)(1). “Even assuming

that this information is relevant (in the broadest sense), the

simple fact that requested information is discoverable under Rule

26(a) does not mean that discovery must be had.” Nicholas v.

Wyndham Intern., Inc., 373 F.3d 537, 543 (4th Cir. 2004). A

district court “must limit the frequency or extent of discovery

otherwise allowed” if it concludes that “(I) the discovery sought

is unreasonably cumulative or duplicative, or can be obtained from

some other source that is more convenient, less burdensome, or less

expensive; (ii) the party seeking discovery has had ample

opportunity to obtain the information by discovery in the action;

or (iii) the burden or expense of the proposed discovery outweighs

its likely benefit . . . .” Fed. R. Civ. P. 26(b)(2)(C). As

discussed above, the defendants and APD provided numerous

affidavits, depositions, and evidence of two thorough

investigations. All evidence confirmed that the APD had not

produced a videotape and did not possess one. We cannot conclude

that the district court abused its discretion in limiting discovery

at this point and denying Ingle’s motion to compel.
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B.

Ingle next contends that the district court erred in denying

her Rule 56(f) motion. Ingle argues that the district court should

have allowed discovery on the audiotape of the police radio

communications from that night and should have granted Ingle’s

request to depose Officer Fowler.

“[A] district court acts wholly within its discretion in

denying additional discovery where the delay in discovery is due to

the fault of the complaining party.” Strag v. Board of Trustees,

Craven Cmty. Coll., 55 F.3d 943, 953 (4th Cir. 1995). Ingle has

possessed the SBI report since 2003, and that report contains a

transcript of the police radio communications. Similarly, Ingle

possessed the crime scene photograph revealing an object on Officer

Fowler’s dashboard since 2003. Ingle has provided no satisfactory

explanation for the delay in requesting further discovery based on

this evidence. Moreover, the district court required Officer

Fowler and the APD to provide further evidence establishing that

the object on the dashboard was a radar unit. Given these facts,

the district court did not abuse its discretion in denying Ingle’s

Rule 56(f) motion.

III.

Finally, Ingle contends that the district court erred in

granting the defendants’ motion for summary judgment on the basis
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of qualified immunity. We review a grant of summary judgment de

novo. Long v. Dunlop Sports Group Ams., Inc., 506 F.3d 299, 301

(4th Cir. 2007). A defendant is entitled to summary judgment only

when there is no genuine issue as to any material fact and the

undisputed facts establish that the defendant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).

When reviewing the district court’s grant of qualified

immunity, we begin by determining whether “[t]aken in the light

most favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitutional

right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). Only if the

facts reveal a constitutional violation do we turn to “the next,

sequential step,” which is “to ask whether the right was clearly

established” at the time of the events at issue. Id.

Ingle asserts that defendants violated Christopher’s “Fourth

Amendment right to be free from unreasonable searches and seizures,

which encompasses the right to be free of arrests, investigatory

stops, or other seizures effectuated by excessive force.” Schultz

v. Braga, 455 F.3d 470, 476 (4th Cir. 2006). “[C]laims of

excessive force are to be judged under the Fourth Amendment’s

‘objective reasonableness’ standard.” Brosseau v. Haugen, 543 U.S.

194, 197 (2004). “The intrusiveness of a seizure by means of

deadly force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9

(1985). Officers may reasonably use deadly force, however, when
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they have “probable cause to believe that the suspect poses a

threat of serious physical harm, either to the officer or to

others.” Id. at 11. The objective reasonableness of an

application of deadly force “must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989).

Ingle contends that the physical evidence suggests that the

window of the vehicle was closed when the firing began, and a

closed window would have interfered with Christopher’s ability to

aim the shotgun at the defendants. Further, relying on King’s

testimony recounting the seconds of the videotape she overheard

when her view was obstructed, Ingle argues that the first shot was

fired several seconds before the other shots occurred. Ingle

argues that Christopher may have aimed the shotgun at the officers

in self-defense and that the slightly earlier shot is inconsistent

with the officers’ affidavits.

None of this evidence creates a dispute as to a material fact.

The record reveals the following undisputed facts. The defendants

knew that: (1) Christopher was suspected in a domestic shooting;

(2) Christopher had fled arrest and engaged in a high speed chase;

(3) moments earlier, Christopher had pointed his shotgun at an

officer and refused to surrender; (4) finally, and crucially, all

available evidence indicates that Christopher was lowering or

pointing his shotgun at the officers when they began firing; none
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of Ingle’s evidence suggests otherwise. A reasonable officer at

the scene would have had probable cause to believe that Christopher

posed a threat of serious physical harm. Even if the car window

was closed and did interfere with his aim, “[t]he car window was no

guarantee of safety when the pointed gun and the officers at whom

it was aimed were in such close proximity.” Elliott v. Leavitt, 99

F.3d 640, 642 (4th Cir. 1996).

Because no constitutional violation occurred, the defendants

are entitled to qualified immunity and summary judgment.

IV.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.