UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ESTATE OF ARTHUR KNIGHT, III, by

and through Arthur Knight, Jr.,

Administrator,

Plaintiff-Appellee,

No. 98-1778

v.

GEORGE STEVEN HOGGARD,

individually,

Defendant-Appellant.

ESTATE OF ARTHUR KNIGHT, III, by

and through Arthur Knight, Jr.,

Administrator,

Plaintiff-Appellant,

No. 98-1847

v.

GEORGE STEVEN HOGGARD,

individually,

Defendant-Appellee.

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Tommy E. Miller, Magistrate Judge.

(CA-97-474-2)

Argued: March 1, 1999

Decided: June 15, 1999

Before WILKINS and TRAXLER, Circuit Judges, and

FABER, United States District Judge for the

Southern District of West Virginia, sitting by designation.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Alan Brody Rashkind, FURNISS, DAVIS, RASHKIND

& SAUNDERS, P.C., Norfolk, Virginia, for Appellant. Michael Ruxton Strong, THE STRONG LAW FIRM, Chesapeake, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In the early morning hours of March 3, 1990, Officer George Steven Hoggard ("Hoggard") and two other officers observed Arthur

Knight, III ("Knight") and Lionel Avant ("Avant") breaking into a

parked car. A short time later, Hoggard pursued Knight on foot across

the parking lot in an attempt to apprehend him. The parties dispute

whether Hoggard fired his weapon at Knight as he fled; however, all

agree that Knight soon outran Hoggard, escaping over an embankment and across a nearby interstate highway (I-64). This was the last

time, as far as the parties know, that Knight was seen alive. Hoggard

stopped his pursuit short of I-64 and returned to his vehicle. Knight's

body was discovered thirteen days later in a drainage canal on the

other side of I-64. He had drowned, but no one knows how or when.

Knight had not been shot.

More than seven years later, Knight's father, as administrator for

his son's estate ("the Estate"), brought this action against Hoggard,

maintaining that Hoggard used excessive force in violation of

Knight's civil rights, see 42 U.S.C.A. § 1983 (West Supp. 1998), and

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asserting state claims for assault, wrongful death, and gross negligence.1

Hoggard filed a motion for summary judgment based on the statute

of limitations and the lack of proximate cause, but the district court

denied the motion. At trial, Hoggard again sought dismissal on these

grounds, but to no avail. However, the district court dismissed the

§ 1983 claim as a matter of law. See Fed. R. Civ. P. 50(a). Likewise,

the district court dismissed the Estate's claims for punitive damages.

The jury then found against Hoggard on the state claims.

On appeal, Hoggard contends that, among other errors, the district

court erred in concluding that this action was not barred in its entirety

by the applicable statute of limitations and that there was sufficient

evidence to establish that Hoggard's actions proximately caused

Knight's subsequent drowning death. The Estate cross appeals, contending in part that the district court erred in dismissing the § 1983

claim and the claim for punitive damages as a matter of law. Because

we agree with Hoggard's contentions, we need not analyze the issues

raised by the Estate in its cross appeal. Accordingly, we reverse and

enter judgment in favor of Hoggard.

I. FACTUAL BACKGROUND

The facts, viewed in a light most favorable to Knight, are these.

Hoggard was assigned with his partner, William B. Everett, to the

Narcotics Squad of the Norfolk Police Department. At some point

after midnight on March 3, 1990, Hoggard and Everett, both dressed

in plain clothes, met in an unmarked police van with a third officer,

Derek Young ("Young"), who was making undercover drug purchases. While Hoggard and Everett were meeting with Young, they

noticed Knight and Avant studying cars parked in the Met Park parking lot where the police van was parked. Eventually, Knight broke

into one of the cars while Avant served as a lookout. Upon seeing the

break-in, Hoggard drove the van toward Knight and Avant, stopping

approximately 25 to 50 yards away from them. With Young still

inside, Hoggard and Everett got out of the van, allegedly with their

handguns drawn and without identifying themselves as police officers.

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1 The Estate's claims for assault and wrongful death were combined

into one count in the complaint.

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Knight and Avant fled in different directions. Everett ran after

Avant while Hoggard chased Knight. The Estate contends that Hoggard discharged his sidearm several times during his pursuit of

Knight, emptying his clip of ammunition. Nevertheless, Hoggard neither shot nor stopped Knight, who ran up a wooded embankment

toward I-64. Hoggard then gave up the chase. As Knight ran across

I-64, a Virginia highway patrolman, who happened to be in the area,

spotted Knight and, using a loudspeaker, ordered him to stop. Knight

kept running. There was no evidence that Knight was ever seen alive

again. Hoggard returned to the van where he learned that Everett had

been unable to apprehend Avant.

After eluding the police, Avant returned home. Knight, however,

failed to return home, prompting his father to contact Avant the following day. Avant reported that he had been with Knight the previous

evening and that they had been chased and shot at by two white

males. As he discussed the incident with Knight's father, Avant ostensibly did not know that the two unidentified males were police officers.

Fearing for his son's safety, Knight's father, accompanied by

Avant, went to the Norfolk Police Department to report the incident.

Avant admitted to an officer that he and Knight had been in the process of breaking into a car when they were approached, pursued, and

fired upon by two white males. Officers T.D. Melton ("Melton") and

R.J. Graupmann ("Graupmann") subsequently took Avant and

Knight's father to Met Park, where the incident had occurred, to

search the area. Hoggard learned about Melton's search and drove to

Met Park also. Hoggard, who was still dressed in plain clothes, privately told Melton that he and Everett were, in fact, the men who

chased Avant and Knight but that they had not fired their weapons

during the pursuit. Melton then reported to Knight's father that the

unidentified males were, in fact, police officers and that they had not

fired any shots. Melton suggested that the shots Avant claimed to

have heard had likely come from a nearby police firing range. Melton,

however, did not specifically identify Hoggard and Everett as the officers involved in the chase, and Knight's father did not inquire as to

the identity of the officers. Melton subsequently opened a missing

person file on Knight.

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On March 16, 1990, two weeks after Knight's father and Avant

met with Melton and Graupmann, Knight's body was discovered

floating in a drainage canal on the other side of I-64 from Met Park

where Hoggard had chased Knight. The drainage canal was separated

from I-64 by another wooded embankment, a wire fence, and a level

area approximately 25 to 30 feet wide. An autopsy revealed that the

cause of death was asphyxia by drowning; no bullet wounds were

found.

Nearly five years later, Young, who had remained inside the

unmarked van during the chase, contacted Knight's father and told

him that Hoggard was the officer who had chased his son. Moreover,

Young told Knight's father that Hoggard had indeed fired his weapon

at Knight and had actually returned to the van with an empty clip.

Hoggard allegedly admonished Young to keep the incident to himself,

which Young did until the fall of 1995.2 Young testified that he did

not learn of Knight's death until that time. Knight's father considered

Young's information to be verification of Avant's claim that the officers had shot at them during the chase.

Bolstered by this information, Knight's father, as administrator of

the Estate, filed this action against Hoggard, some seven years following Knight's death, asserting a § 1983 claim for excessive force. He

also filed state claims for assault, wrongful death, and gross negligence. Hoggard moved on several occasions to dismiss the action as

barred by the applicable statute of limitations. The district court

rejected his argument each time, concluding that Hoggard had concealed facts from the Estate necessary to establish a cause of action

and, therefore, the two-year statute of limitations had been tolled.

Additionally, Hoggard sought summary judgment on the basis that

there was no evidence establishing a causative link between Hoggard's conduct and Knight's death, an argument that the district court

likewise rejected. At trial, Hoggard sought dismissal of the Estate's

claims in part on these same grounds pursuant to Rule 50 of the Federal Rules of Civil Procedure. The district court again refused to dismiss the action on these grounds.

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2 Hoggard contends that he and Young had experienced work-related

problems shortly before Young went to Knight's father.

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II. THE STATUTE OF LIMITATIONS

Hoggard first challenges the district court's ruling regarding the

applicability of the statute of limitations. Our review of the district

court's denial of a Rule 50 motion is de novo. See Sales v. Grant, 158

F.3d 768, 775 (4th Cir. 1998). In denying Hoggard's motion for summary judgment, the district court concluded -- and the parties do not

dispute -- that a two-year limitations period applied to each of the

Estate's claims. With respect to the § 1983 claim, the statute of limitations is imported from state law. See Wilson v. Garcia, 471 U.S. 261,

266-69 (1985); Nasim v. Warden, Md. House of Correction, 64 F.3d

951, 955 (4th Cir. 1995) (en banc). Here, Virginia's two-year personal

injury limitations period applies to the Estate's§ 1983 claim. See

Lewis v. Richmond City Police Dep't, 947 F.2d 733, 735 (4th Cir.

1991); see Va. Code Ann. § 8.01-243 (Michie 1993). Likewise, under

Virginia law, a two-year limitations period applies to wrongful death

claims, see Va. Code Ann. § 8.01-244 (Michie 1993), claims for

assault, and claims sounding in negligence, see Va. Code Ann. § 8.01-

243. The parties disagree, however, whether this two-year limitations

period operates to bar this action.

A. Accrual of the Claims

1. The § 1983 Claim

Although the applicable limitations period for a federal civil rights

claim is determined by reference to state law, "the question of when

a cause of action accrues under 42 U.S.C.§ 1983 remains one of federal law." Nasim, 64 F.3d at 955 (emphasis in original). "[F]or purposes of a § 1983 claim, a cause of action accrues either when the

plaintiff has knowledge of his claim or when he is put on notice --

e.g., by the knowledge of the fact of injury and who caused it -- to

make reasonable inquiry and that inquiry would reveal the existence

of a colorable claim." Id. Thus, the applicable statute of limitations

begins running "when the plaintiff possesses sufficient facts about the

harm done to him that reasonable inquiry will reveal his cause of

action." Id.; see also Brooks v. City of Winston-Salem, 85 F.3d 178,

181 (4th Cir. 1996).

The Estate suggests that Knight's father did not possess sufficient

knowledge to bring a claim until Young revealed Hoggard's identity

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to him, confirming that Avant had truthfully asserted that Hoggard

and Everett discharged their weapons during the pursuit. In view of

the record, we find these contentions unpersuasive.

The Estate has had evidence since 1990 that a police officer in

plain clothes without identifying himself fired shots at Knight as he

chased Knight near Met Park. There was obviously, also, knowledge

of Knight's death. This evidence was without question enough to put

the Estate on notice of both the fact of injury and, under the Estate's

theory of the case, knowledge as to who caused it. The statute of limitations began running right then. The "new" evidence obtained by the

Estate which precipitated the lawsuit seven years later was the identification of Hoggard as the particular officer who had allegedly fired

the shots, along with the corresponding testimony of Young. This evidence might have made the Estate's case stronger, but given the information available to the Estate from the beginning, its discovery did

not affect the running of the statute of limitations. Since the initial

incident, the Estate had known it was a Norfolk police officer who

had chased Knight. Knowledge of the name of the officer was not

determinative of the accrual of the action, particularly in light of the

fact that it was easily attainable. Young's testimony was only corroborative of Avant's testimony and, consequently, was not necessary to

establish an element of the claim since Avant's testimony had been

available to the Estate from the beginning.

Perhaps the Estate did not believe its evidence was strong enough

to bring an action in 1990, but that with the addition of Young's testimony in 1997 it was. Regardless, the statute of limitations begins to

run when a plaintiff has knowledge of his claim, not when the plaintiff obtains evidence that is strong enough to convince him that he can

prevail. We conclude that, as of March 16, 1990, the Estate had sufficient knowledge that a reasonable inquiry would have revealed its

potential cause of action. Therefore, this claim accrued no later than

that date, and the filing of the § 1983 claim was well past the twoyear statute of limitations.

2. The State Claims

In Virginia, a "right of action [is] deemed to accrue and the prescribed limitation period shall begin to run from the date the injury

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is sustained in the case of injury to the person." Va. Code Ann.

§ 8.01-230 (Michie Supp. 1998). Virginia does not follow the discovery rule under which the limitations period does not begin to run until

an injury has been discovered or should have been discovered. See

Nunnally v. Artis, 492 S.E.2d 126, 129 (Va. 1997). Therefore, the

two-year statute of limitations began running at the time of the

Estate's injury, i.e., at the time of Knight's death. Since Knight died

no later than March 16, 1990, the statute of limitations for these

claims expired long before this action was filed.

B. Equitable Estoppel

The Estate contends that its action was timely because the limitations period was tolled by the doctrine of equitable estoppel. Under

Virginia law, a defendant is equitably estopped from raising a statute

of limitations defense when the defendant has obstructed the plaintiff

from asserting his claim by fraudulently concealing the potential

cause of action. See Boykins Narrow Fabrics Corp. v. Weldon Roofing & Sheet Metal, Inc., 266 S.E.2d 887, 890 (Va. 1980). A party

seeking to invoke the doctrine must prove the following elements by

clear, precise, and unequivocal evidence:

(1) A material fact was falsely represented or concealed; (2)

The representation or concealment was made with knowledge of the fact; (3) The party to whom the representation

was made was ignorant of the truth of the matter; (4) The

representation was made with the intention that the other

party should act upon it; (5) The other party was induced to

act upon it; and (6) The party claiming estoppel was misled

to his injury.

Id.

We cannot agree with the Estate that equitable estoppel applies

here. First, the Estate was not ignorant of the facts to support its

claim. Knight's father possessed knowledge of all of the facts needed

to investigate and bring a claim against Hoggard. As explained previously, he was aware of Avant's allegations that Hoggard fired shots

during the chase. Second, Hoggard made no attempt to conceal his

identity; he revealed to Melton that he and Everett had been involved

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in the chase, and Melton reported to Knight's father that the unidentified men had been police officers. The fact that Hoggard denied firing

any shots is not the type of "misrepresentation" upon which the principle of equitable estoppel turns. Indeed, Hoggard testified under oath

at trial that he fired no shots and he continues to maintain that to this

day. The dispute, then, over whether shots were fired is not unlike the

type of dispute that underlies every trial -- one side contends that

events happened in a certain way and the other side asserts a contrary

version. Equitable estoppel comes into play when a party conceals a

fact that prevents a potential plaintiff from having evidence necessary

to prove a claim, or an element thereof. Here, the Estate already had

in its possession evidence that Hoggard had fired shots. Young's testimony merely corroborated what the Estate already knew, and consequently the Estate could not use estoppel as a basis for avoiding its

responsibility to bring a timely action.

In sum, Hoggard simply did not deprive the Estate of"`its power

to assert [its] cause of action in due season,'" id. at 889 (quoting

Brunswick Corp. v. Perkinson, 151 S.E. 138, 140 (Va. 1930)), or "obstruct[ ] the prosecution of [its] suit," id. at 890, which is what the

doctrine of equitable estoppel is designed to prevent. See also Va.

Code Ann. § 8.01-229D (Michie Supp. 1998) (tolling the limitations

period when the defendant has used "direct or indirect means to

obstruct the filing of an action"). We are satisfied that the statute of

limitations was not tolled by the doctrine of equitable estoppel.3

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3 We reject the Estate's contention that Hoggard somehow waived the

statute of limitations defense. Indeed, he seems to have raised it at every

possible procedural juncture. Nevertheless, the Estate argues -- in direct

contradiction to the position it took before the district court -- that the

issue of whether Hoggard is estopped to plead the statute of limitations

is a jury issue and, therefore, Hoggard waived this issue when he failed

to offer a jury instruction on estoppel. We are satisfied that the resolution

of the statute of limitations issue was one for the court -- just as the

Estate suggested below. As we have explained, there is simply no genuine issue of material fact to be resolved with respect to the application

of the equitable estoppel doctrine.

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III. PROXIMATE CAUSE

Hoggard also challenges the district court's denial of his motion for

judgment as a matter of law based on the dearth of evidence establishing proximate cause.4 The Supreme Court of Virginia has explained

that "[t]he proximate cause of an event is that act or omission which,

in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would

not have occurred." Coleman v. Blakenship Oil Corp., 267 S.E.2d

143, 147 (Va. 1980) (quoting Beale v. Jones, 171 S.E.2d 851, 853

(1970)). Although evidence supporting proximate cause need not be

scientifically exact, it "must be sufficient to remove the case out of

the realm of speculation and conjecture and into the realm of legitimate inference before submitting it to a jury for its determination."

Blacka v. James, 139 S.E.2d 47, 50 (Va. 1964)."[M]ere proof of an

accident and negligence does not establish a cause of action." Id.

Hoggard argues the evidence was insufficient precisely because of the

lack of evidence in the interim: no one knows when or how Knight

drowned. We agree with Hoggard. Although the autopsy revealed that

Knight had been submerged for some time when his body was discovered two weeks after the chase, it requires sheer speculation to conclude that Knight's drowning was the natural consequence of

anything Hoggard did. There was simply no evidence of it. Nor was

there any evidence that would allow the jury to do any more than

guess at how the drowning occurred. Indeed, a number of scenarios

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4 Hoggard represents to the court in his opening brief that he made an

appropriate motion to the district court under Rule 50 for judgment as a

matter of law as to proximate cause. Because of the paucity of materials

contained in the joint appendix, however, we are unable to ascertain

whether this is so -- it is clear only that Hoggard argued there was insufficient evidence of proximate cause in his summary judgment motion,

which was denied. See Chesapeake Paper Prod. Co. v. Stone & Webster

Eng'g Corp., 51 F.3d 1229, 1237 (4th Cir. 1995) (explaining that the

denial of a summary judgment motion is not reviewable once there has

been a full trial on the issue and that a party seeking review of such an

issue must move for judgment as a matter of law under Rule 50). Nevertheless, the Estate does not challenge Hoggard's representation that the

issue of proximate cause was properly preserved for review. On that

basis -- and because our analysis of proximate cause does not affect the

disposition in the case -- we will consider Hoggard's contention on

appeal that there was insufficient evidence of proximate cause to allow

this action to go to the jury.

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seem equally likely. Perhaps Knight successfully avoided Hoggard

and waited for his pursuers to depart, only to drown some time later

as a result of tragic carelessness. We are only guessing, however, like

the jury was required to do. The only certain evidence concerning

Knight's death is that he did not die from a gunshot wound inflicted

by Hoggard or anyone else. Rather, Knight drowned at an unknown

time, in an unknown manner, and for an unknown reason. See id. at

50-51 (concluding that plaintiff lacked proximate cause because there

was no evidence of how boy drowned, requiring the jury to speculate). Because the evidence was simply insufficient to establish proximate cause, we conclude that the district court should have awarded

judgment as a matter of law to Hoggard on this basis as well.

IV. SUMMARY

The Estate raises several issues in its cross appeal. In light of our

conclusion that this action was barred by the statute of limitations,

and that the Estate lacked sufficient evidence of proximate cause as

to any of its claims, we need not reach the issues raised by the Estate.

Accordingly, we reverse the district court's denial of Hoggard's

motion for judgment as a matter of law and remand with instructions

that judgment be entered in favor of Hoggard.

REVERSED AND REMANDED

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