UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 
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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Unpublished opinions are not binding precedent in this circuit.
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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 
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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 wellestablished 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 
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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 
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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 
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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 
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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 
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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 
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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 
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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