PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-2047

MARQUS L. STEVENSON; GARY L. BARNETT; CHRISTOPHER T. 

HOWARD,

Plaintiffs – Appellants,

and

KIRK BOND, JR.,

Plaintiff,

v.

CITY OF SEAT PLEASANT, MARYLAND; LOWERY, Officer, Badge No. 

3384, in both his official and individual capacities; ADEY, 

PFC, Badge No. 2712, in both his official and individual 

capacities; PRINCE GEORGE'S COUNTY, MD, 

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-

cv-01791-RWT)

Argued: October 30, 2013 Decided: February 21, 2014

Before DIAZ and FLOYD, Circuit Judges, and Joseph F. ANDERSON,

Jr., United States District Judge for the District of South 

Carolina, sitting by designation.
2

Affirmed in part, reversed in part, and remanded with 

instructions by published opinion. Judge Floyd wrote the

opinion, in which Judge Diaz and Judge Anderson joined.

Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER, PLLC, 

Washington, D.C., for Appellants. Shelley Lynn Johnson, PRINCE 

GEORGE'S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland; 

Victoria M. Shearer, KARPINSKI, COLARESI & KARP, PA, Baltimore, 

Maryland, for Appellees.
3

FLOYD, Circuit Judge:

This appeal comes to the Court after what the district 

court described as “a rather long and tortured factual history.” 

Several orders are on appeal: dismissal; grant of summary 

judgment; denial of a motion pursuant to Federal Rule of 

Civil Procedure 59(e); and denial of a motion pursuant to 

Federal Rule of Civil Procedure 60(b). As explained in greater 

detail below, we affirm in part, reverse in part, and remand 

with instructions.

I.

A.

According to the complaint, in the early-morning hours of 

July 8, 2007, police officers assaulted Marqus Stevenson, Gary 

Barnett, and Christopher Howard (collectively, “Appellants”1

) 

outside of a nightclub in Prince George’s County, Maryland (the

“County”). Appellants claim that the attack was unprovoked. 

Among the officers present at the altercation were Officer 

LaVance Lowery of the City of Seat Pleasant, Maryland (“Seat 

Pleasant”), and Officer Rickie Adey of the County. Officer 

 

1 A fourth individual, Kirk Bond, was also assaulted. Bond 

was a named plaintiff in the complaint but was dismissed with 

prejudice from the case after he failed to participate in 

discovery.
4

Lowery was the only Seat Pleasant officer present, but there 

were multiple County officers present. Although none of 

Appellants were able to identify which individual officers 

assaulted them, it is undisputed that Officer Lowery arrested 

Stevenson. The merits of that arrest, however, are contested.

On July 8, 2009, Appellants sued Officer Adey and Officer 

Lowery in their official and individual capacities and the 

County and Seat Pleasant on the theory of vicarious liability. 

Although Appellants’ complaint mentions other unidentified 

police officers when describing the events surrounding the 

assault, those officers were not named as defendants. The 

complaint contained six counts: Excessive Force/Police Brutality

(“Excessive Force”), Battery, Intentional Infliction of 

Emotional Distress, False Arrest, a count under 42 U.S.C. § 1983 

for Deprivation of Civil Rights, and a count under Articles 24 

and 26 of the Maryland Constitution. The defendants each moved 

for partial or total dismissal of the counts against them, which 

Appellants did not oppose.2

 After dismissal, the following 

counts remained: as to Officer Adey, Excessive Force and 

Battery; as to the County, the Maryland constitutional count; 

 

2 Appellants’ counsel stated at oral argument that he did 

not oppose the motions to dismiss due to his inability to make 

certain submissions and representations to the district court at 

that time. The Court appreciates this honesty and candor.
5

and as to Officer Lowery, the § 1983 count. All counts against 

Seat Pleasant were dismissed. As is relevant for purposes of 

this appeal, the § 1983 count states as follows:

35. Plaintiffs further allege that 

defendants Lowery and Adey, with deliberate 

indifference to and reckless disregard for 

the safety and well-being of the plaintiffs, 

and in violation of the 4th and 5th 

Amendments to the Constitution, did on 

July 8, 2007, commit or allow to be 

committed an unreasonable seizure which 

deprived the plaintiffs of their 

Constitutional rights without affording them 

due process of law.

36. As a direct and proximate result 

of the unreasonable actions of defendants 

Lowery and Adey, . . . Marqus L. Stevenson 

[was] subjected to an unlawful seizure when 

[he was] arrested without probable cause and 

all of the plaintiffs were subjected to an 

unreasonable seizure when they all were 

subjected to unreasonable and unwarranted 

force.

Officer Adey, Officer Lowery, and the County (collectively, 

“Appellees”) subsequently moved for summary judgment, which

Appellants opposed. The district court held a hearing on the 

motions on December 21, 2010, at which time it granted 

Appellees’ motions in their entireties except as to the § 1983 

count against Officer Lowery by Stevenson. As to the other 

counts, the district court determined that there was no credible 

evidence to show that Officer Adey and Officer Lowery assaulted 

any of Appellants and, absent such a showing with respect to 
6

Officer Adey, the County could not be liable on the theory of 

vicarious liability. Finally, the district court stated the 

following at the summary judgment hearing with respect to 

Appellants’ theory of bystander liability:

Bystander liability was not pled in this 

case. There was no pleading indicating that 

an officer who had control of the situation 

observed people in violation of the 

recognition of that as a cause of action and 

failed to do something about it. And to 

allow this to be pled and asserted for the 

first time in response to a Summary Judgment 

motion, when it hasn’t been pled and hasn’t 

been explored in discovery, is not going to 

be considered by the Court.

Following the hearing, the district court entered a written 

order on December 22, 2010, respecting summary judgment.

On January 13, 2011, Appellants moved pursuant to Federal 

Rule of Civil Procedure 59(e) to alter or amend the district 

court’s ruling on summary judgment. Specifically, Appellants 

contended that, inter alia, they had sufficiently stated a cause 

of action for bystander liability. The district court denied 

Appellants’ motion on May 19, 2011. In doing so, the court 

stated that it “does not dispute that bystander liability is a 

cognizable theory under § 1983. However, [Appellants] utterly 

failed to plead this theory or otherwise provide fair notice 

to . . . [Appellees] that they sought liability on this theory.”

A jury trial was held from May 31 to June 2, 2011, on the 

sole count of Stevenson’s § 1983 claim against Officer Lowery. 
7

Officer Lowery moved for judgment at the end of Stevenson’s 

presentation of the case and again after he presented his own 

case, and the district court reserved judgment on both motions. 

Then, during the rebuttal closing argument, Stevenson’s attorney 

mentioned bystander liability, and Officer Lowery’s attorney 

objected. The district court allowed the reference to bystander 

liability, and the case was submitted to the jury. During 

deliberations, the jury submitted the following question to the 

court: “Does excessive force require contact? Or if a police 

officer does not intervene in the [use of] excessive force is 

that consider[ed] excessive force?” The court then brought the 

jury back into the courtroom, instructed the jury on bystander 

liability, and allowed Officer Lowery to sur-rebut Stevenson’s 

argument. The jury ultimately found that Officer Lowery 

violated Stevenson’s constitutional rights by using excessive

force and awarded to Stevenson damages in the amount of $36,000.

After the trial, Officer Lowery moved for judgment as a 

matter of law pursuant to Federal Rule of Civil Procedure 50(b) 

on the grounds that bystander liability had not been pleaded and 

was improperly injected into the case at closing argument. The 

district court held a hearing on Officer Lowery’s motion on 

January 12, 2012, at which time the court determined that 

paragraphs 35 and 36 of the complaint did sufficiently state a 
8

cause of action for bystander liability, thus changing course

from its ruling at summary judgment. The court stated:

With the 20/20 vision of hindsight, I 

believe that I probably overstated things in 

my May 2011 ruling . . . in concluding that 

[Appellants] utterly failed to plead 

[bystander liability] because they did 

indicate in the relevant paragraph of the 

complaint that the defendants, . . . with 

deliberate indifference to and reckless 

disregard for [the] safety and well-being of 

[Stevenson] . . . did, on July 8, 2007, 

commit or allow to be committed an[] 

unreasonable seizure . . . . I think with 

the 20/20 vision of hindsight I would have 

to say that [bystander liability] was pled.

. . .

I believe that I have made an error, 

and I would rather fix it myself than have 

the Fourth Circuit do it.

Although Officer Lowery did not ask for a new trial in his 

motion, the district court granted Officer Lowery’s motion and 

ordered a new trial pursuant to its authority under Rule 50(b). 

The court stated that, “at the new trial, the theory of 

Bystander Liability will be front and center.” Prior to a 

second trial, however, Officer Lowery and Stevenson reached a 

settlement agreement.

On May 18, 2012, Appellants moved pursuant to Federal Rule

of Civil Procedure 60(b) to vacate the district court’s May 19, 

2011 order as it pertained to bystander liability. Appellants 

argued that, in light of the district court’s post-trial 
9

determination that they had sufficiently pleaded bystander 

liability, each of Appellants was entitled to a trial for 

bystander liability against Officer Adey and the County, and 

Howard and Barnett were also entitled to a trial for bystander 

liability against Officer Lowery. The district court denied 

Appellants’ Rule 60(b) motion on the grounds that “there is no 

mistake or injustice that justifies vacating the May 19, 2011 

order” and because the Rule 60(b) motion was not timely filed. 

On this latter point, the district court ruled that the 

Rule 60(b) motion was effectively a motion to vacate the written

summary judgment order—dated December 22, 2010—and that the 

one-year limitations period applicable to Rule 60(b)(1) motions 

had expired.

On August 6, 2012, the district court entered an order 

respecting Officer Lowery and Stevenson’s settlement agreement 

and dismissing all claims. Appellants subsequently timely filed 

a notice of appeal pertaining to (1) the district court’s grant 

of Appellees’ unopposed motions to dismiss; (2) the grant of 

summary judgment to Appellees; (3) the denial of Appellants’ 

Rule 59(e) motion; and (4) the denial of Appellants’ Rule 60(b) 

motion. This Court has jurisdiction over the appeal pursuant to 

28 U.S.C. § 1291.
10

B.

Before reaching the merits of the several orders on appeal, 

we must first sort out what issues remain before the Court. 

Because none of the orders on appeal either (1) adjudicated “all 

the claims or the rights and liabilities of . . . all the 

parties” or (2) included an “express[] determin[ation]” that 

there was no just reason for delaying final judgment, each of 

the orders listed in Appellants’ Notice of Appeal did not become 

ripe for appeal prior to the district court’s August 6, 2012 

order dismissing all claims against Officer Lowery; thus, each 

order is properly before the Court from a procedural standpoint. 

See Fed. R. Civ. P. 54(b); see also Fox v. Balt. City Police 

Dep’t, 201 F.3d 526, 530 (4th Cir. 2000) (“We lack jurisdiction 

to review a district court's order unless that order constitutes 

a ‘final’ judgment. . . . Ordinarily, a district court order is 

not ‘final’ until it has resolved all claims as to all 

parties.”). 

Appellants, however, presented no arguments in their brief 

against the district court’s order granting Appellees’ and Seat 

Pleasant’s unopposed motions for partial and total dismissal. 

Accordingly, even though Appellants listed the February 17, 2010 

dismissal order in their Notice of Appeal, Appellants waived any 

challenge regarding the dismissal of all counts against Seat 

Pleasant, all counts but the § 1983 count against Officer 
11

Lowery, all counts but the Excessive Force and Battery counts 

against Officer Adey, and all counts but the Maryland 

constitutional count against the County.3 See Canady v. Crestar 

Mortg. Corp., 109 F.3d 969, 973–74 (4th Cir. 1997) (issues 

raised in notice of appeal but not briefed on appeal are deemed 

waived).

 

3 Even though Appellants did not challenge the motions to 

dismiss, we note that the district court nevertheless has an 

obligation to review the motions to ensure that dismissal is

proper. See Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 

143, 145 (1st Cir. 2004) (“When deciding a 12(b)(6) motion, the 

mere fact that a motion to dismiss is unopposed does not relieve 

the district court of the obligation to examine the complaint 

itself to see whether it is formally sufficient to state a 

claim. This obligation means that a court may not automatically 

treat a failure to respond to a 12(b)(6) motion as a procedural 

default.” (citation and internal quotation marks omitted)); see 

also Webb v. Morella, 457 F. App’x 448, 452 n.4 (5th Cir. 2012) 

(“The district court granted the motion to dismiss the complaint 

under Rule 12(b)(6) because it was ‘unopposed.’ The Federal 

Rules of Civil Procedure, however, do not, by their own terms, 

require a party to file a response in opposition to a motion to 

dismiss. Accordingly, the district court improperly granted the 

motion to dismiss for failure to state a claim solely because 

the [plaintiffs] failed to oppose the motion.” (citation 

omitted)); cf. Robinson v. Wix Filtration Corp., 599 F.3d 403, 

409 n.8 (4th Cir. 2010) (“[I]n considering a motion for summary 

judgment, the district court ‘must review the motion, even if 

unopposed, and determine from what it has before it whether the 

moving party is entitled to summary judgment as a matter of 

law.’” (quoting Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 

416 (4th Cir. 1993))). Here, although the district court’s 

written order effecting dismissal did not comment on the merits 

of the motions to dismiss, the disrict court stated at the 

summary judgment hearing that it granted the dismissal motions 

for the stated reasons. Subject to certain misstatements of 

law, see infra note 4, we conclude that dismissal for the stated 

reasons was proper.
12

The remaining three orders on appeal—summary judgment, the 

denial of Appellants’ Rule 59(e) motion, and the denial of 

Appellants’ Rule 60(b) motion—present a host of issues that we 

consider in turn, beginning with the sufficiency of the 

complaint with respect to bystander liability. Although the 

standards for reviewing the aforementioned orders are different, 

compare Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en 

banc) (decision on summary judgment reviewed de novo), with

Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 

2010) (decision on Rule 59(e) motion reviewed for an abuse of 

discretion), and Eberhardt v. Integrated Design & Constr., Inc., 

167 F.3d 861, 869 (4th Cir. 1999) (decision on Rule 60(b) motion 

reviewed for abuse of discretion), Appellants’ Notice of Appeal 

evinced a clear intent to review the summary judgment order 

itself, and thus our review is de novo. See Brown v. French, 

147 F.3d 307, 310–11 (4th Cir. 1998) (“[D]esignation of a 

postjudgment motion in the notice of appeal is adequate to 

support a review of the final judgment when the intent to do so 

is clear.”).

II.

This Court recognizes a cause of action for bystander 

liability “premised on a law officer’s duty to uphold the law 

and protect the public from illegal acts, regardless of who 
13

commits them.” Randall v. Prince George’s Cnty., 302 F.3d 188, 

203 (4th Cir. 2002). To succeed on a theory of bystander 

liability, a plaintiff must demonstrate that a law-enforcement

officer “(1) [knew] that a fellow officer [was] violating an 

individual’s constitutional rights; (2) ha[d] a reasonable 

opportunity to prevent the harm; and (3) cho[se] not to act.” 

Id. at 204 (footnote omitted). As quoted in its entirety above 

and stated in relevant part here, paragraph 35 of the complaint 

alleges that Officer Lowery and Officer Adey “did on July 8, 

2007, commit or allow to be committed an unreasonable seizure 

which deprived the plaintiffs of their Constitutional rights 

without affording them due process of law.” (Emphasis added.) 

Appellants maintain on appeal that this language sufficiently 

states a cause of action for bystander liability, whereas

Appellees contend that the district court erred in determining, 

post-trial, that bystander liability had been sufficiently 

pleaded the entire time and that they were put on notice of 

Appellants’ claim.

A.

In general, whether a complaint sufficiently states a claim 

upon which relief can be granted is governed by the Supreme 

Court’s plausibility pleading framework. See Ashcroft v. Iqbal, 

556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 
14

(2007). Both Iqbal and Twombly, however, pertain to whether a 

complaint contains sufficient factual matter to proceed beyond 

dismissal. See Iqbal, 556 U.S. at 678 (“A claim has facial 

plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.”); Twombly, 550 

U.S. at 570 (“[W]e do not require heightened fact pleading of 

specifics, but only enough facts to state a claim to relief that 

is plausible on its face.”). Here, none of Appellees moved to 

dismiss the § 1983 count of the complaint for insufficient 

factual detail. Rather, Officer Lowery answered the § 1983 

count; Officer Adey moved to dismiss the § 1983 count on the 

theories that the arrest of Stevenson was lawful and that the 

Fifth Amendment applies to the federal government only and not 

to state governments or political subdivisions thereof4

; and 

 

4 On this latter theory, we note that only certain 

provisions of the Fifth Amendment do not apply to the individual

States. See Albright v. Oliver, 510 U.S. 266, 272 (1994) 

(citing Hurtado v. California, 110 U.S. 516, 538 (1884)

(requirement of indictment by grand jury for capital crimes not 

applicable to the States)); but see Benton v. Maryland, 395 U.S. 

784, 794 (1969) (prohibition on double jeopardy applicable to

the States); Malloy v. Hogan, 378 U.S. 1, 6 (1964) (privilege 

against self-incrimination applicable to the States). Moreover, 

Officer Adey’s motion to dismiss references an “equal protection 

clause of the Fifth Amendment.” To clarify, there is no express 

equal protection clause in the Fifth Amendment, as there is in 

the Fourteenth Amendment. Detroit Bank v. United States, 317 

U.S. 329, 337 (1943). However, the Supreme Court has been clear 
15

the County moved for dismissal on the theory that, pursuant to 

Monell v. Department of Social Services, 436 U.S. 658 (1978), 

municipal governments cannot be held vicariously liable for 

constitutional violations committed by their employees unless 

the employees were acting pursuant to a “policy or custom,” and 

the County does not endorse a “policy or custom” whereby its 

employees violate others’ constitutional rights.

Further, Appellees did not raise the sufficiency of the 

pleading in the § 1983 count with respect to bystander liability 

until their reply to Appellants’ opposition to the motions for 

summary judgment. And even then, Appellees did not argue that 

the complaint contained insufficient factual matter; rather, in 

written reply and at the summary judgment hearing, Appellees

contended only that they were never put on notice of Appellants’ 

legal theory of bystander liability. Accordingly, the factual 

pleading framework of Twombly–Iqbal is largely inapplicable 

here, as Appellees’ argument is that Appellants failed to 

connect the dots in their complaint—not that the complaint 

 

that “the Due Process Clause of the Fifth Amendment forbids the 

Federal Government to deny equal protection of the laws.” Vance 

v. Bradley, 440 U.S. 93, 94 n.1 (1979); see also Weinberger v. 

Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (“The Court’s approach 

to Fifth Amendment equal protection claims has always been 

precisely the same as to equal protection claims under the 

Fourteenth Amendment.”).
16

itself contains insufficient factual information from which to 

draw reasonable inferences.

B.

Appellees raise two principal arguments against the 

district court’s post-trial ruling that bystander liability was 

sufficiently pleaded in the § 1983 count (paragraphs 35 and 36) 

of the complaint. We address these arguments in turn, reviewing 

the district court’s ruling de novo. See Teachers’ Ret. Sys. v. 

Hunter, 477 F.3d 162, 170 (4th Cir. 2012) (standard of review

regarding the legal sufficiency of a complaint).

1.

Appellees’ first challenge to the complaint’s sufficiency 

with respect to bystander liability is that “the phrase 

[‘bystander liability’] appeared nowhere in the complaint.” 

Appellants, however, were not required to use any precise or 

magical words in their pleading. See, e.g., Sansotta v. Town of 

Nags Head, 724 F.3d 533, 548 (4th Cir. 2013) (“We see no reason 

why the [plaintiffs] needed to use any special phrasing in their 

complaint, as this complaint gave the [defendant] ‘fair notice’

of the [plaintiffs’] claims.”); E.I. du Pont de Nemours & Co. v. 

Kolon Indus., Inc., 637 F.3d 435, 447–48 (4th Cir. 2011) 

(rejecting the argument that a cause of action for price 
17

discrimination had not been sufficiently pleaded “because [the 

counterclaimant] did not use the phrase ‘price discrimination’ 

in its Counterclaim”); see also Okoli v. City of Baltimore, 648 

F.3d 216, 224 n.8 (4th Cir. 2011) (“[S]sexual harassment 

complaints need not include ‘magic words’ such as ‘sex’ or 

‘sexual’ to be effective.” (citing cases)); Labram v. Havel, 43 

F.3d 918, 920–21 (4th Cir. 1995) (“Legal labels characterizing a 

claim cannot, standing alone, determine whether it fails to meet 

[the standard for notice pleading pursuant to Federal Rule of 

Civil Procedure 8(a)(2)].”). Our sister circuits have reached 

the same conclusion regarding whether precise or specific words 

must be present to sufficiently state a cause of action. See, 

e.g., Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 310 (6th 

Cir. 2009) (“Courts may look to—they must look to—the substance 

of a complaint's allegations . . . . Otherwise, [statutory]

enforcement would [be] reduce[d] to a formalistic search through 

the pages of the complaint for magic words . . . .”); United 

States v. Davis, 261 F.3d 1, 45 n.40 (1st Cir. 2001) 

(“[Plaintiff] need not have used the magic word ‘declaratory 

judgment’ in its pleading to put the defendants on notice that 

its claims could be resolved with a grant of declaratory 

relief.”).

Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), is further 

instructive. There, the plaintiff sued Transportation Security 
18

Administration (TSA) agents pursuant to 42 U.S.C. § 1983 for 

violating his First Amendment right to free speech after he was 

arrested for peacefully protesting the TSA’s screening measures. 

See id. at 383–84. Although the TSA agents lacked the official 

authority to arrest him, the plaintiff alleged that they 

effected an arrest of him by reporting his protest to airport 

police, who had the requisite authority. Id. at 386. The 

district court dismissed the complaint, stating that the 

complaint “doesn’t say directly that [the plaintiff’s arrest] 

was at the instruction of the TSA.” Id. at 385 (alteration in 

original) (citation and internal quotation marks omitted). This 

Court reversed, noting that “Section 1983 . . . anticipates that 

a government official will be ‘responsible for the natural 

consequences of his actions[,]’” id. at 386 (quoting Malley v. 

Briggs, 475 U.S. 335, 344 n.7 (1986)), and because “[i]t is an 

undoubtedly natural consequence of reporting a person to the 

police that the person will be arrested,” “it [was] logical to 

assume that [the TSA agents] had a hand in [the plaintiff’s] 

arrest,” id. at 386.

The same is true in this case as in Tobey—that Appellants’ 

complaint does not recite expressly the elements of bystander 

liability as set forth in Randall does not direct the conclusion

that the complaint fails to plead a cause of action for the 

same. Appellants alleged that they “were subjected to an 
19

unreasonable seizure when they all were subjected to 

unreasonable and unwarranted force.” Based on Officer Lowery’s 

and Officer Adey’s undisputed presence at the scene of the 

altercation and the allegation that the officers “allow[ed] to 

be committed . . . unreasonable seizure[s],” it requires no 

legal gymnastics or finagling to liken the language of

paragraphs 35 and 36 of the complaint with the notion that 

Officer Lowery and Officer Adey (1) knew that fellow officers 

were violating Appellants’ constitutional rights by using 

excessive force, (2) had a reasonable opportunity to prevent 

such violations, and (3) chose not to act. See Randall, 302 

F.3d at 204. In other words, it was “an undoubtedly natural 

consequence” that, absent intervention by Officer Lowery and 

Officer Adey, other officers would continue to violate 

Appellants’ constitutional rights. See Tobey, 706 F.3d at 386.

2.

Appellees’ second argument that they were not put on notice 

of Appellants’ bystander-liability claim is that “[a] ‘bystander 

liability’ cause of action was never asserted by Appellants in 

their discovery responses.” We have reviewed the exhibits 

submitted with Appellees’ separate motions for summary judgment 

and did not find anything in Appellees’ interrogatories to 

Appellants or the transcripts of Appellants’ depositions where
20

Appellees asked Appellants about their theories of liability for 

the case. And, perhaps not surprisingly, Appellees have not 

provided any citations to instances where they allege that 

Appellants were asked about the theories of liability underlying 

the case but failed to provide adequate notice of bystander 

liability. At best, Appellees asked Appellants to, “Provide a 

complete statement of the facts upon which you base your 

contention that you were the victim of the use of excessive 

force, stating precisely what you contend was done to you and by 

whom.” The very essence of bystander liability, however, is 

premised on an individual’s passivity and nonparticipation while 

another individual violates a person’s constitutional rights—not 

on the bystander actively causing the harm. See Randall, 302 

F.3d at 204 n.24 (“The rationale underlying the bystander 

liability theory is that a bystanding officer, by choosing not 

to intervene, functionally participates in the unconstitutional 

act of his fellow officer.” (emphasis added)). Thus, to the 

extent that Appellees claim that Appellants should have 

mentioned bystander liability in response to their discovery 

inquiries, Appellees simply did not ask the correct questions.

Regardless, discovery is an exercise in fact-finding, and 

it is the complaint—not depositions or interrogatories—that 

provides “fair notice” to defendants of the allegations against 

them. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 
21

(4th Cir. 2010). Thus, inasmuch as we have already determined 

above that the plain language of the complaint sufficiently 

states a cause of action for bystander liability, whether 

“bystander liability” was mentioned specifically in Appellants’ 

answers and responses to Appellees’ discovery inquiries is 

inapposite of the notice issue.

For the reasons set forth above, we affirm the district 

court’s post-trial determination that Appellants’ complaint, 

specifically paragraphs 35 and 36, sufficiently states a cause 

of action for bystander liability pursuant to 42 U.S.C. § 1983. 

In doing so, however, we must therefore reverse and vacate the 

district court’s summary judgment ruling to the opposite effect.

C.

Having determined that the district court erred at summary 

judgment in its construction of the complaint with respect to 

bystander liability, it is necessary to sort out which parties 

this reversal impacts. As noted above, the only claims that 

survived dismissal were the Excessive Force and Battery counts 

as to Officer Adey, the § 1983 count as to Officer Lowery, and 

the Maryland constitutional count as to the County. Of these 

remaining counts, however, only the § 1983 count contains the 

“allow to be committed” language that states a cause of action 

for bystander liability. Accordingly, inasmuch as bystander 
22

liability was not pleaded in the Excessive Force and Battery 

counts (nor do Appellants contend otherwise), Officer Adey 

cannot be held liable as a bystander. It further follows that, 

at least with respect to bystander liability,5 the County cannot 

be held vicariously liable for the Maryland constitutional 

count. See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999) 

(“As there are no underlying constitutional violations by any 

individual, there can be no municipal liability.” (citing City 

of L.A. v. Heller, 475 U.S. 796, 799 (1986))).

Appellants’ counsel argued at the summary judgment hearing 

that Appellants intended to assert vicarious liability against 

the County for all County officers who either committed, or 

allowed to be committed, constitutional violations against 

Appellants—not just Officer Adey. The language of the Maryland 

constitutional count, however, does not sweep this broadly. 

Specifically, that count states that, “Seat Pleasant and Prince 

George’s County are liable on the basis of respondeat superior 

for any violations of the Maryland Constitution by Defendants 

Lowery and Adey that deprived plaintiffs of their rights under 

Articles 24 and 26.” (Emphasis added.) Although Appellants 

 

5 Appellants also challenge the district court’s grant of 

summary judgment to Officer Adey on the Excessive Force and 

Battery counts and the grant of summary judgment to the County 

on the Maryland constitutional count. We address these 

challenges infra at Part III.
23

were not required to list as defendants (either by name or as 

John Does) all County officers who were present at the scene to 

assert liability against the County for those officers’ actions, 

the Maryland constitutional count must have still put the County 

on notice of any claims against it due to the actions of 

officers not named Adey; it plainly did not. Moreover, the fact 

that Appellants incorporated by reference background 

paragraphs 1–19 of the complaint—which mention unnamed County 

officers as being present at the altercation and assaulting 

Appellants—into the Maryland constitutional count is of no 

moment. See, e.g., Cook v. Howard, 484 F. App’x 805, 808 n.3 

(4th Cir. 2012) (noting that although “the amended complaint 

also designated ‘John Does 1–100’ as defendants[,] . . . none of 

the counts specifically referred to them”); Lee v. State Bd. for 

Cmty. Coll., 62 F.3d 1415 (4th Cir. 1995) (unpublished table 

decision) (“In her complaint, [the plaintiff] addressed the 

promotion issue as factual background and not as a separate 

count. [The defendant] was not on notice that failure to 

promote was a separate claim, nor did the district court address 

it as such. Consequently, we need not address this issue.”).

To summarize, the only defendant that the reversal of the 

summary judgment ruling with respect to bystander liability

impacts is Officer Lowery because he is the only defendant 

against whom the § 1983 count survived dismissal. Accordingly, 
24

we reverse and remand this case to the district court to 

reconsider the parties’ summary judgment papers and to order 

additional briefing, if necessary, regarding Officer Lowery’s 

potential liability as a bystander to the assaults against 

Howard and Barnett. And because we determine that the district 

court erred at summary judgment, we need not consider the merits 

of Appellants’ motions pursuant to Rules 59(e) and 60(b) that 

pertain to the same subject matter.

III.

As noted above, Appellants also appeal the district court’s 

grant of summary judgment and denial of their Rule 59(e) motion 

with respect to Officer Adey as a principal actor in the 

assaults and the County as being vicariously liable for the 

same. As with the sufficiency of the complaint, we will review 

the district court’s summary judgment ruling and not the order 

denying the subsequently filed Rule 59(e) motion; accordingly, 

our review is de novo. See Brown, 147 F.3d 310–11.

A.

At the summary judgment hearing, the district court 

determined that there was no credible evidence to show that 

Officer Adey was responsible for the assaults on Howard, 

Barnett, or Stevenson, or that Officer Lowery was responsible 
25

for the assaults on Howard or Barnett.6 We say “credible” 

evidence because Appellants did submit multiple affidavits with 

their opposition to Appellees’ motion for summary judgment. 

Those affidavits—and specifically Barnett’s affidavit—were what 

Appellants principally relied upon at the summary judgment 

hearing to show that there remained disputes of material fact

for trial. But as the district court noted, Barnett’s affidavit 

contradicted his earlier-given testimony and was “riddled with 

inconsistencies.” For example, Barnett stated in his affidavit 

that he “witnessed an Officer, whose name [he] later learned was 

Adey, strike Chris Howard in the face and knock [Howard]

unconscious.” Yet, Barnett previously stated at his deposition 

that it was not until “after [Howard was knocked out] that[] 

. . . Officer Adey sprung into action.” (Emphasis added.) More 

importantly, when Barnett was asked point-blank in his 

deposition, “Did you see Officer Adey physically hit, touch or 

come into contact with you or Mr. Stevenson or Mr. Bond or Mr. 

Howard?”, Barnett replied only, “Mr. Bond.”

 

6 In their appeal brief, Appellants made the same arguments 

against the grant of partial summary judgment to Officer Lowery 

with respect to Howard and Barnett as they did in regard to the 

grant of summary judgment to Officer Adey with respect to all 

Appellants. Accordingly, we need only address the grant of 

summary judgment to Officer Adey to resolve the issue.
26

This Court has previously referred to bogus affidavits 

submitted in opposition to summary judgment for the purpose of 

creating disputes of material fact as “sham” affidavits. See, 

e.g., Jackson v. Consolidation Coal Co., 21 F.3d 422 (4th Cir. 

1994) (unpublished table decision); see also Barwick v. Celotex 

Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“If a party who has 

been examined at length on deposition could raise an issue of 

fact simply by submitting an affidavit contradicting his own 

prior testimony, this would greatly diminish the utility of

summary judgment as a procedure for screening out sham issues of 

fact.” (citation and internal quotation marks omitted)). Here, 

we recognize that the events immediately preceding the assault 

on Appellants occurred suddenly and that Appellants were 

subjected to a great deal of stress; thus, we do not accuse 

Appellants, and specifically Barnett, of submitting a sham 

affidavit to create a bogus material factual dispute with the 

goal of defeating summary judgment. Nevertheless, we must 

decide this case on the record before us and, based on that 

record, we cannot say that the district court erred due to the 

inconsistencies between Barnett’s prior testimony and his 

affidavit. See Barwick, 736 F.2d at 960 (“A genuine issue of 

material fact is not created where the only issue of fact is to 

determine which of the two conflicting versions of the 

plaintiff's testimony is correct.”). Accordingly, we affirm the 
27

district’s grant of summary judgment to Officer Adey on the 

Excessive Force and Battery counts with respect to all 

Appellants and the grant of summary judgment to Officer Lowery

in his alleged role as a principal actor (i.e., one who actually 

committed the assaults) on the § 1983 count with respect to 

Howard and Barnett.

B.

Two corollary rulings flow from our decision to affirm this 

aspect of the district court’s grant of summary judgment. 

First, as similarly adjudicated above in the context of 

bystander liability, because Officer Adey is not liable for 

either the Battery or Excessive Force counts as to any of 

Appellants, the County is also not liable pursuant to the 

Maryland constitutional count on the theory of vicarious 

liability. See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 

1999); supra note 5 and accompanying text. And second, it 

logically follows that because the district court did not err

under de novo review in granting summary judgment to Officer 

Adey, Officer Lowery, and the County, the district court also

did not abuse its discretion by denying Appellants’ Rule 59(e) 

motion to alter or amend the ruling on summary judgment.
28

IV.

For the reasons set forth above, we affirm in part, reverse 

in part, and remand for reconsideration of Officer Lowery’s and 

Howard and Barnett’s summary judgment papers pursuant to a 

framework in which bystander liability was properly pleaded.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED WITH INSTRUCTIONS