Michael GEMAEHLICH, Plaintiff-Appellant, v. Octavia L. JOHNSON, individually and in her official capacity as Roanoke City Sheriff; Deputy Kenneth Ferrell, individually and in his official capacity as a Roanoke City Sheriff‘s Office deputy; Deputy Frank Porter, individually and in his official capacity as a Roanoke City Sheriff‘s Office deputy; Deputy Jennifer Callahan, individually and in her official capacity as a Roanoke City Sheriff‘s Office deputy; Sergeant Stephen Southerland, individually and in his official capacity as a Roanoke City Sheriff‘s Office sergeant, Defendants-Appellees.
No. 14-1198
United States Court of Appeals, Fourth Circuit
Decided Dec. 2, 2014.
590 Fed. Appx. 251
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Submitted: Nov. 25, 2014.
John P. Fishwick, Jr., Lichtenstein Fishwick PLC, Roanoke, Virginia, for Appellant. Carlene Booth Johnson, Perry Law Firm PC, Dillwyn, Virginia, for Appellees.
Michael Gemaehlich filed a second amended complaint against Sheriff Octavia Johnson, Deputies Kenneth Ferrell, Frank Porter, and Jennifer Callahan, and Sergeant Stephen Sutherland seeking damages for excessive use of force, in violation of
Gemaehlich contends that the district court erred in overruling his objections to the magistrate judge‘s discovery ruling that only some of the complaints and investigative files he sought were discoverable. If timely objections are raised to a magistrate judge‘s rulings on nondispositive matters, the district court must review these objections and set them aside if “clearly erroneous or ... contrary to law.”
Next, Gemaehlich contends that the district court erred in granting summary judgment for Defendants on the issue of whether the deputies used excessive force while searching him at the intake counter. We review de novo a district court‘s grant of summary judgment, “viewing the facts and the reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Viewing the facts presented to the district court at the summary judgment stage in the light most favorable to Gemaehlich, we conclude that the court did not err in granting summary judgment for the Defendants regarding the incident at the intake counter. It is apparent from the evidence presented that the deputies’ actions were not performed “maliciously and sadistically for the very purpose of causing harm” but were made “in a good faith effort to maintain or restore discipline.” Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (internal quotation marks omitted); see Young v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001) (holding that “[p]retrial detainees are entitled to at least the same protection under the Fourteenth Amendment as are convicted prisoners under the Eighth Amendment“) (footnote omitted).
Gemaehlich also contends that the district court erred in permitting Defendants to raise at trial the issue of whether he consulted counsel prior to filing a complaint with the Sheriff‘s Office. Upon review, we note that the district court took under advisement Gemaehlich‘s motion in limine to exclude any such evidence, and Gemaehlich did not renew his motion at trial. Instead, he opted to testify on direct examination that he consulted counsel prior to filing the complaint. In choosing to testify to that fact on direct examination, we conclude, Gemaehlich has waived any claim on appeal that such evidence was erroneously admitted. See Ohler v. United States, 529 U.S. 753, 755, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000) (“[A] party introducing evidence cannot complain on appeal that the evidence was erroneously admitted ....“).
Gemaehlich next contends that the district court erred in refusing to provide a separate jury instruction on his claim that Defendants conspired to deprive him of his civil rights. In light of the jury‘s verdict that the deputies did not use excessive force against Gemaehlich, we need not address this claim. See Hinkle v. City of Clarksburg, 81 F.3d 416, 420-21 (4th Cir. 1996) (concluding that claims derivative of excessive force claim were mooted by jury‘s verdict finding no excessive force); see also id. at 421 (“To establish a civil conspiracy under § 1983, [a plaintiff] must present evidence that the [defendants] acted jointly in concert and that some overt act was done in furtherance of the conspir-
Additionally, Gemaehlich contends that the district court erred in denying his motion for a new trial because the jury‘s verdict is against the clear weight of the evidence.2 “A district court‘s denial of a motion for a new trial is reviewed for abuse of discretion, and will not be reversed save in the most exceptional circumstances.” Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014) (internal quotation marks omitted). When the party moving for a new trial did not previously move for judgment as a matter of law under
Gemaehlich did not move for judgment as a matter of law. Our review of the evidence convinces us that there is evidence supporting the jury‘s verdict, and there was no plain error committed that would result in a miscarriage of justice if we declined to notice it. We therefore conclude that the district court did not abuse its discretion in denying Gemaehlich‘s motion.
Finally, turning to Gemaehlich‘s challenges to the district court‘s order granting in part Defendants’ motion to dismiss, we first conclude that we need not address the merits of Gemaehlich‘s contention that the district court erred in dismissing all claims against Johnson, in light of the fact that the jury returned a verdict for the deputies in this case. See Hinkle, 81 F.3d at 420-21 (holding that challenge to district court‘s grant of summary judgment for supervisor was mooted by jury verdict for defendant officer because “[i]n the absence of any underlying use of excessive force against [plaintiff], liability cannot be placed on ... a supervisor“).
Gemaehlich also contends that the district court erred in dismissing his state law assault and battery claims under the one-year statute of limitations found in
Accordingly, we affirm the district court‘s orders. We dispense with oral argument because the facts and legal contentions are adequately presented in the ma-
AFFIRMED