UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1267

MININA D. MONTGOMERY, Personal representative

of the estate of Philip Montgomery and

individually, as the widow of Philip

Montgomery,

Plaintiff - Appellant,

versus

ANNE ARUNDEL COUNTY, MARYLAND; P. THOMAS

SHANAHAN, Anne Arundel County Chief of Police;

THOMAS A. SUIT, Captain; JAMES RICHEY,

Lieutenant; GREGORY ESHLEMAN, Lieutenant,

#756; ROBERT M. MADISON, Sergeant, #580; FRED

REYNOLDS, Corporal, #675; JAMES R. WELLMAN,

#9695; CHARLES R. ATWELL, Officer, #854,

Defendants - Appellees.

No. 05-1314

MININA D. MONTGOMERY, Personal representative

of the estate of Philip Montgomery and

individually, as the widow of Philip

Montgomery,

Plaintiff - Appellee,

versus

ANNE ARUNDEL COUNTY, MARYLAND; P. THOMAS

SHANAHAN, Anne Arundel County Chief of Police;

THOMAS A. SUIT, Captain; JAMES RICHEY,
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Lieutenant; GREGORY ESHLEMAN, Lieutenant,

#756; ROBERT M. MADISON, Sergeant, #580; FRED

REYNOLDS, Corporal, #675; JAMES R. WELLMAN,

#9695; CHARLES R. ATWELL, Officer, #854,

Defendants - Appellants.

Appeals from the United States District Court for the District of

Maryland, at Baltimore. Marvin J. Garbis, District Judge. (CA-02-

2621-MJG)

Argued: March 14, 2006 Decided: May 3, 2006

Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Jeffrey Scott Larson, LAW OFFICE OF ROBERT AMMONS,

Greenbelt, Maryland, for Appellant/Cross-Appellee. Hamilton F.

Tyler, ANNE ARUNDEL COUNTY OFFICE OF LAW, Annapolis, Maryland;

Howard Margulies, Baltimore, Maryland, for Appellees/CrossAppellants. ON BRIEF: Angelo I. Castelli, Greenbelt, Maryland, for

Appellant/Cross-Appellee. Linda M. Schuett, County Attorney, ANNE

ARUNDEL COUNTY OFFICE OF LAW, Annapolis, Maryland, for

Appellees/Cross-Appellants Anne Arundel County, Maryland, P. Thomas

Shanahan, Anne Arundel County Chief of Police, Thomas A. Suit,

Captain, James Richey, Lieutenant, Gregory Eshleman, Lieutenant,

#756, Robert M. Madison, Sergeant, #580, Fred Reynolds, Corporal,

#675, and James R. Wellman, #9695; Mark W. Howes, Annapolis,

Maryland, for Appellee/Cross-Appellant Charles R. Atwell, Officer,

#854.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Certain Anne Arundel County, Maryland, police officers

mistakenly assumed that Philip Montgomery had been drinking alcohol

when he was arrested for erractic driving. The officers placed him

in a holding cell to “sober up” without seeking medical assistance.

J.A. 657. Montgomery had actually consumed antifreeze, and he died

several hours later as a result. Montgomery’s widow filed this

suit against the County and several individual officers, asserting

claims under 42 U.S.C. § 1983, the Maryland Constitution, and

Maryland tort law. The district court dismissed all of her claims

with the exception of the deliberate indifference, gross

negligence, and negligence claims against arresting officer Charles

Atwell. The County remained in the suit for indemnification

purposes. After an eight-day trial, the jury rendered a verdict in

favor of Atwell, and the district court entered judgment for him

and the County. The court awarded costs to Atwell but denied them

to the County. Montgomery appeals the judgment, and the County

cross-appeals the denial of costs. Finding no error, we affirm. 

I.

On the afternoon of December 15, 2000, an off-duty police

officer for the District of Columbia, Christopher Huxoll, observed

Montgomery driving erratically on Route 4 in Anne Arundel County.

Montgomery narrowly missed a sign and then struck a guardrail,
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blowing out a rear tire. Huxoll followed Montgomery, who drove on

the rim for about two miles before turning onto an exit ramp and

stopping his vehicle at the top of the ramp. When Montgomery tried

to back his car down the ramp, Huxoll pulled his car up against

Montgomery’s to prevent him from backing into oncoming traffic.

Huxoll then approached Montgomery’s car on foot, removed

Montgomery, and placed him in handcuffs. At some point during the

stop, Huxoll asked Montgomery what he had been drinking, and

Montgomery responded, “antifreeze.” S.J.A. 9. Huxoll did not take

Montgomery’s answer seriously. He thought Montgomery simply meant

that he had consumed alcohol.

In the meantime, Huxoll had called 911 for assistance,

and Officer Charles Atwell of the Anne Arundel County Police

Department arrived about fifteen minutes later. According to

Huxoll, he told Atwell upon his arrival that Montgomery had

consumed antifreeze. Huxoll was not certain that Atwell heard him,

however, because the traffic was noisy and the two officers were

standing some distance apart. Atwell maintains that Huxoll never

told him that Montgomery had consumed antifreeze.

Atwell placed Montgomery in the front seat of Atwell’s

cruiser and drove him to the Southern District Police Station.

Montgomery cried during the twenty to twenty-five minute trip to

the station; he did not say that he had consumed antifreeze. When

they arrived at the station, Atwell and another officer, John
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Gilmer, removed Montgomery from the vehicle and helped him walk to

the booking area and, ultimately, to the holding cell. Atwell

called Montgomery’s mother later that evening, telling her that

Montgomery was under arrest for driving while intoxicated.

Montgomery’s mother told Atwell that her son “wasn’t a drinker.”

J.A. 667. She also told him that Montgomery was bipolar and that

he had not been taking his medication for some time, but she made

no suggestion that the officers should get medical attention for

her son. She agreed to pick up Montgomery at the police station

when the officers were ready to release him. 

At approximately 10:00 p.m., Atwell returned to the

police station to complete his paperwork for the evening. Atwell

went to the cellblock to have Montgomery sign the tickets related

to the incident. When Atwell entered Montgomery’s cell, he saw

that Montgomery was in obvious distress: he was “completely blue,”

his lips were “very, very dark blue,” and he had a “very thick

white mucus” in his mouth. J.A. 677. Atwell directed booking

officer James Wellman to call 911 and summoned another officer who

was trained as an Emergency Medical Technician. While awaiting the

paramedics, the officers attempted to perform CPR on Montgomery.

Despite their efforts, Montgomery was pronounced dead at the Anne

Arundel Medical Center at 11:05 p.m. The medical examiner

determined that Montgomery died of antifreeze consumption and that

Montgomery had not consumed alcohol prior to his death. It appears
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that Montgomery drank the antifreeze in what turned out to be a

successful suicide attempt.

Atwell was ultimately charged administratively in

connection with Montgomery’s death in proceedings before the Anne

Arundel County Police Department Hearing Board. Atwell was found

guilty of neglect of duty, unsatisfactory performance, and failure

to perform duties, among other charges. He was later terminated by

the Chief of Police. Atwell has been challenging his termination

in Maryland courts, unsuccessfully thus far. See Atwell v. Anne

Arundel County Police Dept., No. 964 (Md. Ct. Spec. App. Feb. 6,

2006). 

Minina Montgomery, acting as personal representative of

Montgomery’s estate and individually as his widow, sued the County

and several individual officers, including Atwell and booking

officer Wellman. Her complaint alleges claims under 42 U.S.C.

§ 1983, the Maryland Constitution, and Maryland tort law. Counts

16 and 17 assert negligence claims against the County: 

COUNT XVI - Wrongful Death

(Negligence Imputed to Anne Arundel County, Maryland)

418. The Plaintiff incorporates the allegations

contained in paragraphs 1 through 417 of the Complaint.

419. That Defendants . . . Wellman[] and Atwell[]

were acting in the scope of their employment on December

15, 2000. 

420. That the aforesaid Defendants were performing

a ministerial act during their interaction with

Montgomery.
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421. That the negligence of the above-mentioned

Defendants may be imputed to Anne Arundel County under

the doctrine of respondeat superior. 

422. As the direct and proximate cause of the

aforesaid negligence, decedent Philip Montgomery suffered

a wrongful death. 

423. As a result of the wrongful death of the

decedent, Minina D. Craig, individually, has incurred

medical and funeral bills and expenses, pecuniary losses,

loss of services, mental anguish, emotional pain and

suffering, loss of society, companionship, comfort, and

such other losses as are recognized at law.

WHEREFORE, the Plaintiff, Minina D. Craig,

individually, requests judgment against . . . Booking

Officer James R. Wellman[] and Officer Charles R. Atwell,

in the amount of $500,000.00, plus costs and interest,

which shall be satisfied by Anne Arundel County. 

COUNT XVII - Survival

(Negligence Imputed to Anne Arundel County, Maryland)

424. The Plaintiff incorporates the allegations

contained in paragraphs 1 through 423 of the Complaint.

 425. That Defendants . . . Wellman[] and Atwell

were acting in the scope of their employment on December

15, 2000. 

426. That the aforesaid Defendants were performing

a ministerial duty during their interaction with

Montgomery.

427. The injuries to the decedent where such that

decedent could have brought suit; however, no action was

ever filed in his lifetime.

428. That the decedent, Philip Montgomery, suffered

excruciating pain during his period of incarceration by

the Anne Arundel County Police Department on December 15,

2000.

429. As a result of the acts of negligence of the

aforesaid Defendants, the decedent suffered conscious

pain and suffering prior to his death, and such other

injuries as are recognized at law.
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WHEREFORE, the Plaintiff, Minina D. Craig, Personal

Representative of the Estate of Philip Montgomery, seeks

judgment against . . . Booking Officer James R. Wellman[]

and Officer Charles R. Atwell in the amount of

$500,000.00, plus costs and interest, which shall be

satisfied by Anne Arundel County. 

J.A. 100-03. 

On November 27, 2002, the defendants filed a motion to

dismiss. About six months later, on May 15, 2003, the district

court granted the motion in part but allowed Montgomery to pursue

her § 1983 and gross negligence claims against Atwell. In

dismissing counts 16 and 17 in their entirety, the court

incorrectly stated that Montgomery filed four counts (counts 16-19)

“sounding in gross negligence against the Individual Defendants and

the County” for wrongful death. J.A. 214. In fact, counts 16 and

17 asserted simple negligence and counts 18 and 19 asserted gross

negligence. The court’s mistake appeared to have little bearing on

its dismissal of counts 16 and 17, however. In dismissing these

counts, the court declared that the “County, an arm of the State,

is immune to suit for the tort of gross negligence.” J.A. 217. 

On the same day, May 15, 2003, the court issued a

scheduling order that set a deadline of June 30, 2003, for motions

to amend the pleadings. The defendants filed their answers on May

27. On July 1 Montgomery filed a motion to reinstate counts 16 and

17 of the complaint against the County, specifically stating that

the counts were grounded in negligence, not gross negligence, and

that they were based upon the Maryland Local Government Tort Claims
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Act (LGTCA), Md. Code Ann., Cts & Jud. Proc. § 5-301 et seq. On

August 15, 2003, the court denied the motion, again based on

sovereign immunity. The court observed that the LGTCA “requires

the local government to defend and indemnify an employee[, but it]

does not authorize a direct action against the local government.”

J.A. 234. 

Several weeks later, on September 10, Montgomery filed a

motion for leave to amend counts 16 and 17 by removing all

references to the County. On October 27 the court ruled that it

would permit Montgomery to amend the complaint as to Atwell, but

not as to the other defendants (including Wellman), provided that

the Atwell amendment was filed by November 10. Montgomery

apparently did not understand the court’s October 27 order and

asked for clarification. On November 14 the court issued an order

explaining the rationale for its decision and giving Montgomery

“one final chance” to file the necessary amendment “and proceed on

a negligence claim” with respect to Atwell. J.A. 285. Montgomery

filed the amendment on November 26.

In January 2005 an eight-day jury trial was held on

Montgomery’s deliberate indifference, gross negligence, and

negligence claims against Atwell. On January 27 the jury returned

a verdict for Atwell on all counts. On January 31, 2005, the court

entered judgment for Atwell and for the County; costs were awarded

to Atwell, but not to the County. In dealing with costs, the court
10

determined that the situation concerning the County was “different”

because of the “vast difference in [its] financial resources vis-avis [Montgomery’s]” and because the County bore some responsibility

for lengthening the litigation. J.A. 831. Montgomery appeals,

contending that the district court erred in dismissing the claims

against Wellman, refusing to allow an amended complaint against

Wellman, and allowing Atwell to “point the finger” at Wellman and

other officers at trial. The County cross-appeals the court’s

denial of its costs. 

II.

Montgomery argues that the district court erred in

dismissing two sets of claims against Wellman: counts based on

deliberate indifference to Montgomery’s serious medical needs

(under § 1983 and the Maryland Constitution) and negligence. The

court correctly dismissed the deliberate indifference counts

against Wellman because the complaint made no allegation that

Wellman had any reason to believe that Montgomery was anything but

drunk. Absent such an allegation, Montgomery could not succeed on

a deliberate indifference theory against Wellman. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994) (explaining that an official

cannot be found liable for deliberate indifference unless he is

aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists). We therefore affirm the
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dismissal of the counts against Wellman based on deliberate

indifference to Montgomery’s serious medical needs. 

Montgomery’s argument that the district court erred in

dismissing the negligence claims (counts 16 and 17) against Wellman

is also without merit. Counts 16 and 17 asserted claims against

the County, not Wellman. Although the court mischaracterized these

counts as sounding in gross negligence rather than simple

negligence, this mischaracterization apparently had no bearing on

its reasoning. In dismissing these counts, the court correctly

reasoned that the “County, an arm of the State, is immune to suit

for the tort of gross negligence.” J.A. 217. The principles of

sovereign immunity that barred Montgomery’s suit against the County

based on gross negligence likewise bar suit against the County

based on simple negligence. The district court therefore committed

no legal error in dismissing these counts. 

Montgomery further argues that the district court erred

in construing the language of these counts as stating a claim

against the County. Focusing on language in counts 16 and 17 that

requests judgment against individual officers, Montgomery argues

that the counts actually state claims against individual officers,

not the County. This argument is inconsistent with Montgomery’s

subsequent motion to amend in which Montgomery sought to remove all

references to Anne Arundel County in the complaint and acknowledged

that “[t]hese amendments will remove Anne Arundel County’s defense
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of governmental immunity in that Plaintiff is no longer proceeding

in counts XVI and XVII against Anne Arundel County in any manner

whatsoever.” J.A. 239 (emphasis added). This statement

essentially concedes that counts 16 and 17 pled negligence against

the county in the first instance. We therefore reject Montgomery’s

strained, after-the-fact effort to reinterpret counts 16 and 17. 

III.

Montgomery next argues that the district court abused its

discretion by refusing to grant her leave to amend the complaint as

to Wellman. Because Montgomery filed her motion to amend the

complaint after the deadline set by the scheduling order for

amending pleadings, Federal Rule of Civil Procedure 16(b) applies.

Under Rule 16(b) a motion to amend a complaint filed after a

scheduling order deadline shall be granted only upon a showing of

“good cause.” Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262

F. Supp. 2d 618, 632 (D. Md. 2003). Rule 16(b)’s good cause

standard focuses on the timeliness of the amendment and the reasons

for its tardy submission; the primary consideration is the

diligence of the moving party. Id. at 631-32.

There is no good reason for Montgomery’s tardy submission

of the motion to amend. Even if Montgomery’s counsel initially

understood counts 16 and 17 as pleading negligence claims against

Wellman individually, the court’s May 15, 2003, order put them on
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notice that, in the court’s view, the complaint did not state

negligence claims against individual defendants. Counsel

nevertheless made no effort to amend the complaint until July 1,

more than one month after the defendants filed their answer to the

complaint and a day after the scheduling order’s deadline for

motions to amend the pleadings. The court’s subsequent August 15

order denying Montgomery’s motion to reinstate counts 16 and 17

further alerted counsel that the counts did not properly state

negligence claims against individual officers. At that point in

the litigation, it should have been clear to Montgomery’s counsel,

who presumably understood basic principles of governmental immunity

under Maryland law, that Montgomery could have recovered for

Wellman’s alleged negligence only by stating a negligence claim

against Wellman individually, not against the County. See Martino

v. Bell, 40 F. Supp. 2d 719, 722-23 (D. Md. 1999). Nevertheless,

counsel waited several weeks, until September 10, to file the

motion to amend. In light of this delay, the district court was

correct to find no “good cause” to allow Montgomery leave to amend

the complaint. 

IV.

Montgomery finally argues that the district court abused

its discretion by allowing Atwell to “point the finger” at Wellman

and other officers during trial. See Appellant’s Br. at 49. There
*

On cross-appeal the County challenges the district court’s

denial of its costs as a prevailing party. The court’s alternative

reason for denying costs to the County -- that the County bears

some responsibility for prolonging the case –- is sufficient for us

to conclude that the court acted within its discretion.

Accordingly, we affirm on this issue. 

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is no clear basis spelled out in Montgomery’s briefs for this

argument. Montgomery broadly contends that the district court made

erroneous evidentiary rulings but cites to no specific ruling.

Even if Montgomery could cite a specific ruling, however, she

cannot show that any of Atwell’s arguments at trial were unfairly

prejudicial to Montgomery. The district court allowed Montgomery

to introduce into evidence the County Hearing Board’s determination

that Atwell had neglected his duties. In response to this

compelling evidence of Atwell’s negligence, Atwell justifiably

sought to establish that he had been singled out for discipline by

the County and that the other officers who participated in the

arrest also determined that Montgomery was not in need of medical

treatment. Furthermore, Atwell argued more than once that he was

not “blaming” Wellman or anyone else. J.A. 531-32, 819.

Montgomery has not shown that she was unfairly prejudiced by

Atwell’s arguments at trial.*

V.

Because we are sustaining the district court in its

rulings, we need not address Montgomery’s argument that the case
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should be remanded with instructions that it be assigned to a

different district judge. 

The judgment of the district court is

 AFFIRMED.