UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SALATHIEL X. WRIGHT,

Plaintiff-Appellant,

v.

TOWN OF GLENARDEN; MORRIS A.

LEWIS, Chief of Police, Town of

Glenarden,

Defendants-Appellees,

No. 95-2580

and

PRINCE GEORGE'S COUNTY; FRANK W.

LYNCH, Officer, Badge #248; BRIAN

MCLAUGHLIN, Officer, Badge #237;

GEORGE SULLIVAN, Officer, Badge

#235,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(CA-92-2836-DKC)

Argued: May 8, 1996

Decided: June 26, 1996

Before HALL and WILKINS, Circuit Judges, and CHAPMAN,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Randy McRae, RANDY MCRAE & ASSOCIATES,

Washington, D.C., for Appellant. Kevin Michael Murphy, CARR,

GOODSON, LEE & WARNER, P.C., Washington, D.C., for Appellees. ON BRIEF: Samuel J. Smith, Jr., CARR, GOODSON, LEE &

WARNER, P.C., Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff-Appellant, Salathiel X. Wright, brought this action after

he was allegedly abused and falsely arrested by three police officers

from the Town of Glenarden Police Department on April 30, 1991.

Although Plaintiff's allegations are shocking, the three officers ultimately admitted that the allegations against them are true.

The issue in this appeal is municipal and supervisory liability for

civil rights violations committed by individual officers of the municipal police department. The district court granted summary judgment

for Defendants-Appellees, The Town of Glenarden and its former

police chief, Morris Lewis, ruling that Plaintiff failed to produce sufficient evidence of policy or custom to establish municipal or supervisory liability under 42 U.S.C. § 1983 or the Maryland Declaration of

Rights. Plaintiff appealed. For the reasons that follow, we affirm the

district court's ruling.

I.

Plaintiff filed this action in Maryland state court on July 1, 1992,

alleging various causes of action, including counts under 42 U.S.C.

§ 1983 for constitutional violations, as well as counts under Maryland

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common-law and the Maryland Declaration of Rights. Plaintiff named

as defendants the three individual police officers involved in the incident, the Town of Glenarden, Md., and then police chief, Morris A.

Lewis.1 The case was removed to federal court on October 7, 1992.

On June 7, 1993, the district court entered an order bifurcating the

trial under Marryshow v. Town of Bladensburg, 139 F.R.D. 318 (D.

Md. 1991), so the case against the individual active officers would be

tried before the case against the Town and Chief Lewis. Plaintiff

eventually reached a settlement with the individual officer defendants,

who admitted violating Plaintiff's constitutional rights. Thereafter, the

case proceeded against the remaining defendants, the Town and Chief

Lewis.

Defendants and Plaintiff filed cross-motions for summary judgment on the issue of the liability of the Town and Chief Lewis under

42 U.S.C. § 1983 and the Maryland constitution. On August 8, 1995,

the district court granted summary judgment for Defendants. The

court determined that Plaintiff failed to produce sufficient evidence of

policy or custom so as to establish municipal or supervisory liability.

On August 18, 1995, Plaintiff filed a notice of appeal of the August

8, 1995 order.

In addition, on August 18, Plaintiff filed a motion for reconsideration and to vacate the August 8 order. Plaintiff asserted that he had

received newly discovered evidence from Defendants that would support his theory of municipal liability. Apparently, the district court

had referred the discovery matters in this case to a United States magistrate judge, and on July 27, 1995 the magistrate judge ordered

Defendants to produce some documents that were the subject of a

motion to compel previously filed by Plaintiff.

On September 25, 1995, the district court denied Plaintiff's motion

to reconsider. The court refused to consider the new evidence that

Plaintiff submitted with his motion to reconsider. The court based its

ruling on the fact that, prior to the court's order of August 8, 1995,

_________________________________________________________________

1 Plaintiff initially included Prince George's County, Md. as a defendant, but on March 22, 1993, he voluntarily dismissed all claims against

the county.

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Plaintiff did not contend that he needed additional discovery to rebut

the issues raised in Defendants' motion for summary judgment. Plaintiff filed an amended notice of appeal on September 28, 1995, which

may be liberally construed to include the district court's order of September 25 denying Plaintiff's motion to reconsider.

Plaintiff's appeal raises three issues: (1) whether the district court

erred in refusing to consider the evidence attached to Plaintiff's

motion to reconsider as newly discovered evidence under Fed. R. Civ.

P. 60(b); (2) whether the district court erred in finding that Plaintiff

failed to produce sufficient evidence of municipal or supervisory liability under section 1983; and (3) whether the district court erred in

determining that Plaintiff failed to produce sufficient evidence of

municipal or supervisory liability under the Maryland Declaration of

Rights. We will address these issues seriatim.

II.

Plaintiff first contends that the district court erred in refusing to

review the additional evidence of municipal or supervisory liability

that Plaintiff attached to his motion to reconsider.

A district court's decision about whether or not to vacate a judgment under Fed. R. Civ. P. 60(b) because of newly discovered evidence is reviewed for abuse of discretion. See National Organization

for Women v. Operation Rescue, 47 F.3d 667, 669 (4th Cir. 1995).

The district court based its decision on Plaintiff's failure to indicate

pursuant to Fed. R. Civ. P. 56(f)2 that he needed additional discovery

relating to the issues raised on the parties' cross-motions for summary

_________________________________________________________________

2 Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the

motion [for summary judgment] that the party cannot for reasons

stated present by affidavit facts essential to justify the party's

opposition, the court may refuse the application for judgment or

may order a continuance to permit affidavits to be obtained or

depositions to be taken or discovery to be had or may make such

other order as is just.

Fed. R. Civ. P. 56(f).

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judgment. The court determined that Plaintiff received the new evidence at the July 27, 1995 hearing on Plaintiff's motion to compel;

however, Plaintiff never brought that new evidence to the court's

attention, nor did Plaintiff advise the court of the unresolved discovery dispute, prior to the court's order of August 8, 1995. Thus, the

court determined that Plaintiff was "simply too late in his assertion

that this critical evidence is now available and justifies reopening the

case." J.A. at 444.

Plaintiff does not address his failure to file an affidavit under Fed.

R. Civ. P. 56(f) seeking a continuance to allow him to conduct whatever additional discovery he needed to adequately rebut Defendants'

motion for summary judgment. This court has recognized that "[a]s

a general rule, summary judgment is appropriate only after `adequate

time for discovery.'" Evans v. Technologies Applications & Serv. Co.,

80 F.3d 954, 961 (4th Cir. 1996) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986)). However, as we recently acknowledged,

"We, like other reviewing courts, place great weight on the Rule 56(f)

affidavit, believing that `[a] party may not simply assert in its brief

that discovery was necessary and thereby overturn summary judgment

when it failed to comply with the requirement of Rule 56(f) to set out

reasons for the need for discovery in an affidavit.'" Id. (quoting

Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995)). In Evans,

we cited with approval the Second Circuit's holding that "`the failure

to file an affidavit under Rule 56(f) is itself sufficient grounds to

reject a claim that the opportunity for discovery was inadequate.'" Id.

(quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d

Cir. 1994)).

We find no abuse of discretion in the district court's refusal to consider Plaintiff's newly discovered evidence. Even if the district court

erred by not considering the new evidence, such error would be harmless because, as discussed below, the new evidence is not sufficient

to establish municipal or supervisory liability under section 1983.

III.

Plaintiff next contends that the district court erred in determining

that he failed to produce sufficient evidence of policy or custom to

hold the Town responsible for the alleged violation of his constitu-

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tional rights. Plaintiff argues that the evidence, when viewed in the

light most favorable to him, supports his allegations that the Town

refused to investigate complaints of excessive force and failed to remedy incidents of excessive force; that the Town's complaint handling

procedures were deficient; and that the Town failed to adequately

train its officers.

We review de novo the district court's decision to grant or deny

summary judgment. E.g., Burtnick v. McLean, 76 F.3d 611, 612 (4th

Cir. 1996). The standards for imposing liability on a municipality

under section 1983 are well settled in this circuit:"The substantive

requirements for proof of municipal liability are stringent." Jordan ex

rel. Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994). Of course,

the basic premise is that respondeat superior is not applicable to

municipalities in the context of section 1983. Municipalities may not

be held liable for the constitutional torts of their officers, employees,

or agents merely because of the agency relationship. Monell v.

Department of Social Services, 436 U.S. 658 (1978). To establish

municipal liability under section 1983, the plaintiff must prove the

existence of an official policy or custom of the municipality that proximately caused the deprivation of his rights. Spell v. McDaniel, 824

F.2d 1380, 1385-87 (4th Cir. 1987), cert. denied , 484 U.S. 1027

(1988).

Municipal policies include formal and informal decisions made by

municipal officials authorized to make final decisions. Id. at 1385-86.

Municipal customs are established by persistent, widespread practices

of municipal officials, whether specifically authorized or not, which

are so permanent and well settled as to have the force of law. Id. at

1386. Such practices are attributable to a municipality when they

become so frequent in occurrence that actual or constructive knowledge is imputed. Id. at 1387.

A.

Plaintiff's first allegations of municipal liability relate to the

Town's alleged failure to investigate complaints, covering up of complaints, or condoning misconduct by the Town's police officers.

Condonation by municipal officials of widespread unconstitutional

police misconduct can constitute a policy or custom under section

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1983 under certain circumstances. The plaintiff must show that

responsible policymakers of the municipality had actual or constructive knowledge of the misconduct, but failed, as a matter of specific

intent or deliberate indifference, to stop or correct the practices. Id.

at 1390-91. "Constructive knowledge may be inferred from the widespread extent of the practices, general knowledge of their existence,

[or] manifest opportunities and official duty of responsible policymakers to be informed." Id. at 1391. To establish that a custom of

misconduct proximately caused a particular violation, a plaintiff must

show that the failure to correct the known practices made the specific

violation "`almost bound to happen, sooner or later.'" Id.

After reviewing Plaintiff's complaint and the entire record on

appeal in this case, we agree with the district court that there is no

genuine dispute of material fact regarding constructive notice by the

Town of any prior pattern of abuse by its police officers. Plaintiff's

allegations are merely conclusory statements, and he fails to cite any

specific evidence to support his claims. The unrebutted evidence

shows that the Town had adequate procedures in place for reporting

complaints, and the district court properly determined that Plaintiff

failed to produce any evidence that those procedures were deficient

or that they were routinely not followed.

Plaintiff argues that admissions in the releases of the individual

officers support his claims against the Town and Chief Lewis. The

power of the individual officers to bind the Town by their own admissions is extremely dubious. In any event, as the district court noted,

Plaintiff failed to provide any affidavits or deposition excerpts from

the individual officers regarding their proffered testimony. The district court properly refused to speculate about what the substance of

the officers' testimony would be.

B.

Plaintiff also argues that the Town is liable for failing to adequately

train its police officers.

The manner in which a municipality's police force is trained "is

necessarily a matter of `policy' within the meaning of Monell." Spell,

824 F.2d at 1389. To establish a viable claim under section 1983 for

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failure to train, a plaintiff must show that "the`municipality's failure

to train its employees in a relevant respect evidences a "deliberate

indifference" to the rights of its inhabitants.'" Jordan ex rel. Jordan

v. Jackson, 15 F.3d at 341 (quoting City of Canton v. Harris, 489 U.S.

378, 388 (1989)). "Mere negligence is insufficient to impose section

1983 liability on a municipality for alleged failure to train." Id.; Spell,

824 F.2d at 1390. Deliberate indifference is shown only "if, `in light

of the duties assigned to specific officers or employees, the need for

more or different training is . . . obvious, and the inadequacy [is] . . .

likely to result in the violation of constitutional rights.'" Jackson, 15

F.3d at 341 (quoting City of Canton, 489 U.S. at 390). In addition, the

plaintiff must show that the inadequate training was the proximate

cause of his deprivation of rights. Spell, 824 F.2d at 1390.

Plaintiff's allegations of the Town's failure to properly train its

police officers are also nothing more than unsupported, conclusory

statements. In addition, the testimony of Plaintiff's expert witness on

police canine training cannot overcome Defendants' motion for summary judgment. Plaintiff's expert merely states that the training of the

Town's canine unit did not meet the required standard of care.

Although that opinion might support a finding of negligence, it would

not support the required finding of deliberate indifference.

As Defendants contend, the unrebutted evidence in the case

showed that the Town had a policy of hiring only officers who were

trained in accordance with state standards and that the Town maintained a program of continuing police education.

C.

Although Plaintiff's brief on appeal does not specifically address

the issue of Chief Lewis's supervisory liability, Defendant Lewis

argues that Plaintiff failed to produce sufficient evidence to hold him

responsible for the acts of his subordinate officers.

Supervisory personnel may be liable under section 1983 in their

official capacities for civil rights violations inflicted by their subordinates under certain circumstances. However, supervisory liability

only arises where "[a] supervisor's continued inaction in the face of

documented widespread abuses . . . provides an independent basis for

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finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates." Slakan v. Porter,

737 F.2d 368, 373 (4th Cir. 1984), cert. denied , 470 U.S. 1035

(1985).

The few isolated incidents of misconduct on which Plaintiff relies

are not sufficient to establish supervisory liability in this action.

IV.

Finally, Plaintiff argues that the district court erred in ruling that

his claims under Maryland law are examined under the same analysis

as the federal claims. Plaintiff cites to Clea v. Mayor & City Council

of Baltimore, 541 A.2d 1303 (Md. 1988), in support of his argument.

However, Clea does not hold that claims under the Maryland Declaration of Rights should be treated differently than section 1983 claims.

Accordingly, we agree with the district court's analysis on this point.

V.

For the foregoing reasons, the district court's order granting summary judgment for Defendants-Appellees is hereby

AFFIRMED.

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