CLERK'S OFFICE U.S.. DIST. Cœ RTAT ROANOKE, VA

FILED

MA2 2 3 2222IN TH E UN ITED STATES DISTRICT COU RT uuw c

. uousx c uRxt. p.FORTHE WESTERN DISTMCT OF WRGINIXH ARRISON BURG D IW SION D L K

JACQUELINE Y. MINIFIELD,as Adm iG strator and PersonalReptesentative of the Estate ofD'LON D RE M IN IFIELD and inher Individual Capacitp Civil Action N o. 5:17cv43

Plaintiff,By: M ichael F. Urbansld

Chief United States District Judge

CITY OF W IN CH ESTER, et a1.,

Defendants.

M EM ORAN DUM OPIN ION

Tllis matter is befote the court on defendant Stephanie Sills' M otion for Sllmmat'y

Judgment, ECF No. 198, and plaintiff Jacqueline Y. Miniheld's Second Motion to

Amend/cottect the Fouttla Amended Complaint (fcomplaint7). ECF No. 201.1 The issues

have been 6zlly briefed, and argument was heard on Febrtzary 13, 2020. For the reasons stated

in open court and Ehose set forth herein, because material facts are in dispute as to the

circumstances of D'Londre Minifeld's death, the motion for sllmmary judgment as to Counts

Two and Six of the Fourth Am ended Complaint is DEN IED .As to the motion to am end,

given the procedural llistory of this case and potential prejudice to defendants previously

dismissed with pzejudice from this case, Minifield's request to reassert Count Three arinst

any previously disrnissed defendant is DENIED. However, because of the lack of prejudice

1 Deputy Ioristen Bradford Sled a modon for sanctions in her response to plaitltifps motion to amend thecomplaint to add back muldple defendants inqluding Bradford, ECF No. 204, and tequested sancdons at theFebruary 13, 2020 henring. Given the ruling denym' g plaitzdfps request to bring Bradford back into this case,Bradford's motion for sarlcdons is DENIED.

to the sole rem aining defendant, Stephanie Sills, M iniûeld's motion to reassert a clnim Zleging

a conspitacy in violation of 42 U.S.C. j 1983 to cover up the shooting is GRANTED.Z

To say that this case has been a procedural nightmare would be an undeystatement.

Due in no small part to the transition itl plaindff M iniheld's counsel and her ever-shifting

pleadings, the resolution of this case has been needlessly delayed.

To set the stage fot the coutt's considetation of the pending motions, tetzacing the

tortured proceduzal llistory of this case is necessary. The original complaint was flled on M ay

1, 2017 agninst the City of Winchester, its police chief Kevin Sanzenbacher, and 15 Jane and

John Doe defendants. Compl., ECF No. 1. The original complaint contained fotuteen counts,

inclucling excessive force, wrongful death, civil zights violadons, conspitacy, and other state

law clqims. Foreshadowing a consistent pattetn in this case, after defendants responded with

a modon to disnniss, plnintiff promptly consented to droj fotu counts against the City of

W inchestez. Otder, ECF No. 25. Plaintiff's counsel Bradley G. Pollack moved to withdtaw.

M otion to W ithdzaw, ECF No. 29. W ithdrawal and retention of new counsel delayed the

heating on the remainingportion of defendants' motion to dismiss. Ordez, ECF No. 30. Roger

1. Roots and David Carl Johnson entezed appearances on November 10, 2017 on behalf of

plaintiff.3 Due to the change of plnintiff's counsel, the trial was continued from luly 16, 2018

to December 17, 2018. Order, ECF No. 37.

2 As expbined herein, becuuse M inifeld did not allege racial animus modvadng the cover-up, a cllim forconspiracy unde.r 42 U.S.C. j 1985(3) is futile and wlll* not be allowed to proceed to trial.3 Although Roots is no longer counsel of record, Jdhnson remlins counsel of record on the docket. At thehenring on February 13, 2020, the court irlquired as to l'zis stattzs as counsel itz tllis case. PloindfFs rnlrrent

Onlanuary 18, 2018, the cotut held a hearing on the pending portion of the motion to

disnaiss. At the hearing, plaintifps counsel annotmced that they wotzld be tendezing an

amended complaint, obviating the need to address the pending motion to dismiss. M inute

Entry, ECF N o. 40. The cout.t gtanted leave to amend and denied the pending motion to

disrniss as moot. Order?,ECF N o. 42.

The Fitst Amended Complaint was fsled on Febm aty 2, 2018, teasserting clli.ms against

the City of W inchester and Police Chief Kevin Sanzenbacher, as well as adding thirteen

individual members of the W inchester Police Depattment, eleven Virginia State PoEce

defendants, and lG stin Bradford, a deputy with the Fzederick County Sheriffs Depar% ent.

First Am . Compl., ECF No. 50. W ithin ten days, plaintiff moved to flle a Second Am ended

Complaint to make cozrections regarding certain named defendants. M otion, ECF No. 52.

Leave to amend was gtanted on Februaty 13, 2018. Ozder, ECF N o. 53. Another ten days

passed, and plaintiff sought leave to file a Third Am ended Com plaint, wllich was granted.

Order, ECF N o. 61. The Third Amended Complaint contained eleven counts against twenty-

seven defendants. Corrected Third Am. Compl., ECF No. 62.

M otions to dismiss the Third Amended Complaint were flled and briefed, and

atgument on the motions was set fotluly 6, 2018. ln the meantime, plaintiff's counsel changed

again. On April 19, 2018, Deborah W hitlock, of the Georgia Bar, m oved fot adM ssion to

represent plaintiff, and was admitted pro hac vice on April 20, 2018. ECF N os. 86 and 87. On

counsel, Cluistophet Brown, inclicated thatlohnson no longet intends to be counsel, but has flled no modonto withdzaw. Absent a motbn and order effectinglohnson's withdrawal, he temains counsel of record in thisCase.

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July 5, 2018, cuttent counsel Christopher Brown noticed llis appearance as counsel of record

foz plaintiff, and Btadley Pollack nodced lzis reappearance. Nodces, ECF N os. 106 and 109.

Also on July 5, 2018, the afteznoon before the scheduled hentbng on the motion to

disrniss, new counsel of record for plaintiff Chtistopher Brown moved to continue the hearing,

informing the court that he intended to file a Fourth Amended Complaint, tfagreegingq that

the operadve complnint needs to be amended to stteamline the cbim s, more clearly present

the facts, avoid conclusory allegations, and generally improve upon the pleaclinp'' M em . in

Supp. of M inifeld's M ot. to Reschedtzle Defs.' M ot. to Disnliss, ECF No. 108, at 2.

The hearing was held on July 6, 2018 as scheduled, and an order was entered on July

13, 2018. The otder stated that Tfldllzring the he/tqrig, counsel for Plaintiff conceded that the

Complaint- wlzich alreydy was flled upon her notice of appeatancç - was confusing, included

clnim s that m edted disrnissal and required amenclm ent'' Order, ECF N o. 112, at 1. The order

stated that ffgals more fully explained on the record, the Complaint in its cutrent iteration is

not sufficiently pled. The Com plaint's incomprehensible cloim s and conclusory allegations do

not meet the minimum requirements of Rule 8.77 Ldx at 1-2. The coutt dismissed the Complaint

without prejudice and granted plaintiff ffleave to amend the complaint/r thejburth andfnal

/J7zz:.'' Id. at 2 (emphasis in original).

On August 2018, plainéff ftled het Fourth Amended Complaint, this time

contailng six counts against sixteen defendants. ECF No. 117. Defendants promptly ftled

new m odons to dismiss, and plaindff responded in a brief filed on September 18, 2018 by

agreeing to dismiss certain counts and defendants, as follows:

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Preliminnrily, D efendant City is correct regarcling the dismissal ofcel'tain Defendants. Plaintiff further wishes to clismiss Count Iand Count V with prejudice; and Cotmt III (Conspitacy), offkersEnke, M eclina, Bnm son, IWng, Hatvey, Shelton, and D eputyBradford without Jrf/ktip: as cliscovery may reveal evidence tosupport the Conspiracy Count. The Foutth Amended Complaintwill proceed against Winchester (Count IV- Monell liability) andOfficers Ivins and Sills (one of the tvo shot Minifield; Count 11- Excessive Fotce), and the indivibual officers again for CountVI - Wrongful Death).

Consol. Opp'n to Defs.' Mots. To Disnaiss, ECF No. 128, at 2 (emphasis in original). Plaintiff

congtvned this position at the heating held on October 31, 2018.M inute Entry, ECF No.

132. As reflected in the order enteted on N ovember 2, 2018, at that hearing, Ttthe court and

the parties lrgely agreegdq that tl'lis excessive use of force and wrongful death case needs to

move folwatd against only a few defendants. Duting the healing, counsel foz the plaintiff

conceded that a ntunber of defendants should be disnnissed from the action, Counts One and

Five shotzld be dismissed with prejudice,and Count Three should be disnnissed without

prejudice. Defendants objected to disnaissal of Count Three without prejudice, arguing it

should be disrnissed with prejudice. After hearing arplment, the court ordered dismissal of

ffcounts 1 and 5 with ptejudice by agteement of the patties,'' and dismissal of fdcount 3 with

prejudice as the plaintiff aclmitted that she has no basis for the cllim at this time and only

hopes to leazn of evidence dl:ting the com se of discovery.'' Order, ECF No. 134, at 1-2. As

regards Counts Two and Six, the order stated as follows:

For Counts 2 and 6, the plaintiff conceded that all defendants butChdstopher Ivins and Stephanie Sills should be disrnissed. Theplaintiff also agteed that Count 6, which currently alleges 170thwrongful deat.h and survival clnims, should be limited to wzongfuldeath. The defendants argued that the counts in their entiretyshotzld be disnûssed for failure to state a cbim. The court Ends

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that the plsintiff's allegadons of a police shootjng resulting in

death are sufhcient to overcome Rule 129$(6) for the clnims ofexcessive use of force under 42 U.S.C. j 1983 and wrongful deathagainst lvins and Sills. The remaining defendants shall bedisrnissed from Counts 2 and 6. The court also Snds that it isapptopdate for Count 6 to m ove forwatd with only the wrongfuldeath portion of the clnim.

Id. at 2.

Attempe g to zeconcile the azguments concerning disrnissal with versus without

rejudice the court stated'.P ,

Although the court is disnnissing m tzltiple counts from the Fourth

Amended Complaint with prejudice, the plaintiff may seek leaveof court to add these counts back to the complaint if she canshow good cause, based on evidence found dtuing the course of

discovery or by other means, that these dismissals wereertoneous. However, given the pleading history of the case, thecolzrt will scruptllously evaluate any attempts by the plaintiff torenew these clnims. At this time, the court shall not awatdsanctions against the plaintiff.

.Lda at 3. Plaindff conceded fllt-ther that Count Fotm allegm' g a municipal liability clnim under

Monell v. New Yozk City Dept. of Social Services, 436 U.S. 658 (1978), against the City of

W inchester, should be limited to an alleged failure to ttaili akin to Ci of Canton Olzio v.

Harris, 489 U.S. 378 (1989). Trial was rescheduled forluly 8, 2019.

Due to scheduling issues with witnesses, the parties m oved to continue the case, and it

was reset for August 5, 2019. M ot. and Ozder, ECF Nos. 146 and 147. The deadline for

completion of discovery was extended, and defendants flled motions for s'lmmary judgment.

A hentingwas held onluly 10, 2019, atwhich time plaintiff conceded that Tfthere is no question

6

of material fact as to whether Officer lvins used excessive force against D'Londre M ini:eid.

AII plaintiff's arpzm ents now center on Ofhcer Stephanie Sills.'' Order, ECF No. 174, at 1.

The court granted sllmmary judgment for the City of Winchester on Count Four,

alleging a failure to train under M onell and took under advisement the m odon for summary

judgment on Counts Two and SLx against Officet Sills because ceztzn eyewimesses to the

incident recently had been located and needed to be deposed. 12..

A t oral argument, counsel foz M-irliheld sought leave of coutt to bring back Count

Thtee, which he had abandoned nine m onths pzeviouslp' M iniûeld ftled a m otion to amend

the next day, and the court heard atgument on July 17, 2019. In a written Order entered on

July 19, 2019, the cout't denied the modon to resuscitate Count Thzee, reasoning as follows:

At the hearing, no facts revealed in discovery were presented insupport of the motion. Rather, plaindff's counsel pegged hism otion on the fact that a n'lmber of W inchester police ofhcershad ftled declaradons in suppott of the motion for summary

judgment, suggesting to him an ongoing conspitacy to cover upthe tl'ue facts surrouncling M inifield's death. M ost of thedeclarations flled by W inchester police ofhcers recite, in cursoryfashion, their involvement with the events sutroundingM inifield's death and authenticate reports they flled on theevents. Other declarants provided details of accreditation andtraining information about the W inchester police depntfm ent.

The declazation of John Defslippi, a Virginia State Police crimeitwestkator, was the most extensive, authenticating the repot.t heptepated on the death and attaclaing myriad investkadvedoclxm ents.

To be clear, plaintiff's counsel does not suggest that any factscontained in the declarations and reports provide any new basisto contend that a conspiracy existed cover up thecircmnstances surrounding M iniheld's death. Rather, counsel

argued that he should be aEowed to renew his conspiracy cbim

on the eve of trial simply because of the flling of the declatations.Plaintifps counsel argued that these declarations were false andin fl'tthetance of a conspiracy to cover up the tt'ue factssurrounding M inifield's death. As such, counsel argued that the

. '

611ng was outside the scope of the officers' employm ent,obviating the bar he perceived to exist to bringing this clnimundet the inttacotpotate conspizacy docttine.

'Fhis is not a case where new evidence has been discovered

supporting the tenewal of an abandoned clnim. Instead, plnintiff'scounsel cbim s he should be allowed to resuscitate his previouslyabandoned cbim based solely on the fact that W inchester police

officers signed declarations suppotting the slpmmary judgmentm otion, m ost of wlzich do little more than serv'e to authenticate,for Rule 56 ptzm oses, police reports long available in discovery.

Order, ECF No. 175, at 4-5. Applying the Foman v. Davis, 371 U.S. 178, i82 (1962), factors,

the cout't concluded that Tfgbjoth because the motion is not supported by the revelation of any

newly discovered facts and because of the prejudice to defendants occasioned by such an

amendment following the summary judgment modon and so close to ttial, the cout't must

deny the modon to add back previously disnnissed Count Three.'' 1da at 6.

In the meantime, two persons present at the scene, Aaliyah Green and Kelly Grafton,

wete deposed, and concetns were zaised about the authenticity of a previously fzed declaration

beating a signat'ure that M s. Green disavowed in her deposition. As a result of this

extraotdinaty revelation, the patties sought leave to continue the case, M ot., ECF No. 177,

wllich, after heating, was granted. M inute Entry and Order, ECF Nos. 183, 186. Because of

the court's pencling ctiminal tdal docket, a new ttial date could not be obtained untillanuary

6, 2020. The case was latet continued to the present ttial date of April 13, 2020 because of

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defendant Sills' m ilitary deployment. M ot. and Otdet, ECF Nos. 188, 190, 191, and 193. In

Januaty 2020, Miniheld was able to depose Kayla Friesan, a cloimed thitd eyewitness.

II.

On January 22, 2020, defendant Sills ftled a renewed motion for slzmmary judgment,

M ot., ECF No. 199, and plindff ftled a second motion to amend his complaint to reallege

Count Thtee and add back pteviously dismissed defendants. M ot, ECF N o. 201. A headng

was held on these motions on Febtuary 13, 2020. M itmte Entry, ECF No. 213.

At the hearing, the court denied the renewed modon fot summary judgment as to

Counts Two and SLx ftled by defendant Sills, reasoning that material issues of fact existed as

to the cizcumstances of D'Londte M ito eld's death given the deposition testimony of

witnesses Green, Grafton, and Friesen that they saw D'Londre M iniheld draped over a chain-

Enk fence and subsequently taken to the gzound by ofûcets.

Pursuant to Federal Rule of Civil Procedure 56(a), the court must ffgrant sllmmary

judgment 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 1aw.7' Fed. R. Civ. P. 56(a); see Celotex Co . v.

Catzett, 477 U.S. 317, 322 (1986)9 G1 nn v. EDO Co ., 710 F.3d 209, 213 (4th Cit. 2013).

The moving patty bears the initial butden of demonstrating the absence of a genuine issue of

material fact. See Celotex, 477 U.S. at 323. If that burden has been m et, the non-m oving patty

must then com e forward and establish the specihc matedal facts in dispute to surdve sllmmary

judgment. Matsuslnita Elec. Indus. Co. v. Zenit.h Radio Co ., 475 U.S. 574, 586-87 (1986).

Sills, as the m ovant, was unable to catry hez butden' of showing that thete was no

genlxine issue of material fact for the jury to resolve. Whether a fact is material depends on the

9

televant substantive law. Andetson v. Libetty Lobby, lnc., 477 U.S. 242, 248 (1986). f<otaly

disputes over facts that nnight affect the outcom e of the stzit undér the governing 1aw will

ptoperly pteclude the entty of summaty judgment. Factual disputesthat are itrelevant or

unnecessaty will not be counted.'' Id. (citation omitted). Sills argtzed that the only issue of

m atezial fact to the cause of acdons in this case was whethet she had shot and ldlled D'Londre

M iniheld.

D'Londre M inifield's gunshot wound was a contact wound, rendeting impossible plaintiff's

She argued that the forensic evidence undisputedly established that D 'Londre

theory that D'Londte M iro eld was shot from a distance while on the fence and renïoved. to

the ground by offcers. Sills atgued that the question of whether D 'Londre M inifield was shot

on the ground or on the fence is ancillary, not matedal, to the clnim s. However, the court

hnds that the circumstances of the death, beyond the natute of the pm shot wound, are.

'

material to detetmining whether Sills is g1.1111 of contributing to D'Londte M iniheld's death.

The facm al dispute of whether D'Londre M irlifield was shot on the fence, as plaintiff alleges,

or on the ground, as defendant alleges, is at the heart of the wrongful death and excessive

force cbims.

Sitls contends that M inifield has not carried her burden of pzoviding any evidence that

wotzld be adlnissible at trial to contradict the conclusion that D 'Londte M irtiheld sustained a

contact wound, tepdering plaintiff's theory of the case impossible. In responding to a m otion

for summary judgment, the non-moving party ffmust set forth specific facts that go beyond

the fmere existence of a scintilla of evidence.''' Gl nn, 710 F.3d at 213 (quotingAnderson, 477

U.S. at 252). lt must show that ffthere is sufficient evidence favodng the nonmoving party for

a jury to return a verdict for that partp'' Res. Bankshares Co . v. St. Paul Merc Ins. Co.,

407 F.3d 631, 635 (4th Cit. 2005) (quoting Anderson, 477 U.S. at 249). <<In other words, to

gtant summary judgment the gcloutt must detetmine that no teasonabl: jury could ûnd for the

nonmoving party on the evidence before it.'' Moss v. Parks Co ., 985 F.2d 736, 738 (4th Cir.

1993) (ciéng Perini Co . v. Perini Const. Inc., 915 F.2d 121, 124 (4th Cir. 1990)). While a

jury cokzld celninly agtee with Sills, the testimony by Green, Grafton and Fdesen placing

D'Londre M iniheld on the fence prior to his removal by the officets is starkly at odds with

the officets' account of the incident. Plsinly, matetial facts ate in dispute as to how D'Londte

M iniEeld died and whether defendant Sills beats any responsibility for his death. As such, Sills'

motion for sllmmary judgment as to Counts Two and SLx is DENIED.

111.

Sillj' argument as to the fozensic evidence brought in focus the putative expert

testimony of two zetired police of:cers designated by plaintiff, Charlese A. Feldbush and

Gerald A. S'pmm ers. Each of these retited police officers authored repol'ts critical of the

investigation of the Dsondre Miniheld death by the W inchester Police Department, the State

M edical Examinez, and the Virginia State Police as well as the conclusion that D'Londre

Miniheld's gunshot wound was self-inflicted. M inifeld seeks to introduce these witnesses as

experts to (1) the manner in wllich the ctiminalitwestkations following the death of D'Londre

Minifield were conducted and (2) the conclusions about the mannet of death the fozmer

officers would have drawn given the nature of the pm shot wound.

The court is oblkated to serve as gatekeeper where expert opinion evidence is offered

to dete= ine whether an expert witness is qualiûed and whether an expett opinion is grounded

in objective underlying scientjfic methodology, as opposed to mere speculation or conjecture.

Daubel.t v. Metzill Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-590, 595 (1993); Kumho Tire

Co. v. Cn= ichael, 526 U.S. 137, 141-142 (1991). The applicable rtzle governing adnlissibility

of testimony by expetts is Fedetal Rule of Evidence 702, which ptovides:

If scientific, technical, oz other specialized knowledge will assist11 .

the ttiet of fact to undetstand the evidence ot to detemaalne a fact

in issue, a witness qualiûed as an expert by knowledge, skill,experience, ttqining, or education, m ay testify thereto in the fot.m

of an opinion or otherwise, if (1) the testimony is based uponsufhcient facts or data, (2) the testimony is the product of reliableptinciples and methods, and (3) the witness has applied theptinciples and m ethods reliably to the facts of the case.

Fed. R. Evid. 702. The applicable rule govertling the legitim acy of underlying bases of opinion

testimony by experts is Federal Rule of Evidence 703, which provides in pal't:

The facts or data in the particular case upon which an expertbases an opinion or inference may be those perceived by or madeknown to the expert at or befoze the hearing. If of a typereasonably relied upon by experts itz the partictzlar field itl

fotming opinions or infetences upon the subject, the facts or dataneed not be admissible it'l evidence in order for the opinion orinference to be adnnitted.

Fed. R. Evid. 703. ln other words, expert testimony that can assist the tier of fact is to be

admitted at tdal where the witness is qualifed and a preliminary assessment of his testimony

hnds Tçthe reasoning or methodology underlying the (profferedq testimony is scientifically valid

and . . . that reasoning or methodology properly ca'n be applied to the fact at issue.'' D aubert,

509 U.S. at 592-593. In order to qualify as an experq an individual must possess the requisite

knowledge, skill, experience, trnining or education. Vir 'nia Vet-miculite Ltd. v. W .R. Grace

& Co. Conn. & The I-listoric Green S rin s Inc., 98 F. Supp. 2d 729, 732 (W.D. Va. 2000).

12

Feldbush and Summets appeaz to have suffkient expetience and specialized knowledge

about police investigations to allow them to offet opiions undez Fedezal Rule of Evidence

702 about the investigation of D'Londte M iniûeld's death by local and state law enfotcem ent

authorities. W hat is not clear at this point is whether either Feldbush or Slnm mers possess

suffcient ltnowledge, slrill, experience, ttaining or education under Rule 702 to permit them

to testify as to the nattlre of the gunshot wound sustained by D'Londre M inifield. This issue

appeats to turn on the exannination of the wound and involves the contested presence of soot

or stipplint at the projecie entry site. Certainly, the State Medical Examiner may provide

her m edical opinion as a forensic pathologist as to the nattue of the gunshot wound based on

hez examination of D 'Londte Miniheld's body and her medical trnining. At this point,

howevet, there is no basis to suggest that these t'wo former police officers have a suffkient

expertise to ptovide what is essentially the opinion of a m edically trnined pathologist.

The court must be mindful that experts have the potenéal to be misleaHing if their

tesfimony is not reliable.Expert testimony with a g'reater potenéal to lnislead than to aid the

See Westber v. Gislaved Gumnli AB, 178 F.3d 257, 261 (4th Cit.. jury should be excluded.

1999) (citinj United States v. Dorse , 45 F.3d 809, 815-16 (4th Cir. 1995)). While plaintiff's

counsel asserts that these experts are well-qualified to render such opinions, the cout't is not

4 rfel''he pdnciple gsicj indicator of close range Gr1'ng is sdppling, that is, a pattern of dny, punctuate abrasions inthe slcin sttrrounding the eneance wound. Sdppling is caused by unbtuned pardcles of gunpowder striking thesldn. In contrast to other substances that may be deposited on the sldn, such as soot, sdppling cannot be washedaway. The presence of stippling itzdicates that the muzzle of the gun was within 2 feet of the victim's bodywhen it was discharged. Contact fsring range occlzrs when the muzzle of the gun is in contact wif.h the skin attlze time of discharge. Contact range wounds are commonly seen in suicidal ftteqtm itjuties. These wounds areoften charactee ed by a dense pattern of combusted pmpowder residue or soot within and around the woundmargin. Soot is lighter itz weight than unburned pardcles of gunpowder. M ost of soot will, therefore, only cazrya few inches from the muzzle of the gun before fnllng away.''J. Scott Denton, Adrienne Segovia andlames A.Fillcins, rTracdcal Pathology of Gunshot W ounds.'' Azclzives of Pathology and Laboratory M edidne: Sept.

. 2006, Vol. 130, No. 9, at 1283-1289.

convinced that they meet the Rtlle 702 standatd. In short, tlae court has not been presented

with sufficient evidence that either zetired police officer possesses suffkient expertise to

render an opinion, based on D'Londre M iro eld's head wound, as to the distance of the gun

ftom his head when it was dischatged. Absent some showing, to be offered at an evidentiary

D aube-rt hearing conducted pziot to ttial, that Feldbush or S'Ammezs possesses 'a sufûcient

basis under Rule 702 to offer an opinion as to the natare of gtmshot wounds and the

conclusions to be dtawn from such analysis, neither of these tited police ofhcers may testify

as to D'Londre Miniûeld's wounds at tdal.

IV.

At the February 13, 2020 hearing, M itliûeld asked again to reinstate Count Thzee, re-

alleging conspiracy to cover up a police-involved shooting against a host of defendants she

voluntnùly dismissed in 2018. M iniheld seeks to reassert tllis clnim against Sills, the only

remnining defendant in this action currently, and seeks to bdng back as defendants to this

cbim either W inchester Ofhcers Ivins, loing, M edina, Shelton, and Deputy Bradfozd of the

Frederick County Sheriff's Depattment; or, in the alternative, just Ivins alone.

At the outset, itis uncleat whether CountTe ee alleges a conspiracy to violate 42 U.S.C.

j 1985(3) or 42 U.S.C. j 1983. This confusion stems from several anomalies in the pleacling.

Fitst, although Count three expzessly references j 1985(3) in its caption, the allegations of

Count thtee facially fail to state a cbim under j 1985 as they include no Nnt of an allegation

that the conspiracy to covez up the shooting was motivated by racial animus.s Second,

5 Miniseld mendons, for the & st time, the alleged racial animus in a reply to Bradford's response to the modon(second) to amend the Fourth Amended Complaint. ECF No. 212 at 8-9. However, a modon to dismiss analysisis limited to the four corners of the pleading.

paragzaph 231 of Count Three expressly references j 1983 as applicable to the conspiracy.

Third, patagraph 232 of Count Thtee alleges that defendants acted Tfunder coloz of states (sicq

lam'' an element of a j 1983 violation, but not of j 1985. Fourth, the flrst four complaints in

tllis case allege a j 1983 conspitacy to cover up the shooting. See Compl., ECF No. 1, at 41;

Am. Compl., ECF NO . 50, at 27; Second Am . Compl., ECF No. 54, at 27; and Third Am .

Compl., ECF No. 62, at 27. The court will evaluate the merits of reviving Count Thtee under

b0t.h possible readings of the language below.

Miniheld cites the Rule 15(a) standard in her modon to nmend, which provides that

leave to amend Tdshall be freely given when justice so requires.'' Fed. R. Civ. P. Rule 15(a).

Howevez, the timing of this motion is problematic. Rule 16$) ptovides that <Ta schedule shall

not be modiûed except upon a showing of good cause and by leave of the clisttict judge.'' Fed.

R. Civ. P. Rule 169$. The Foutth Circuit has held that when the deadlines provided by the

scheduling order have passed, the good cause standard must be satisfied to justify amending

the pleadings. Nolprison Ru Co . v. Parvizian, 535 F.3d 295, 298 (4th Cit. 2008). Moreover,

in the order reflecting plaintiff's motion to withdraw Count Tllree, the court stated that any

m otion to btingxback a count dismissed with prejudice would require a showing of good cause,

wllich will be frscrupulously'' reviewed. Order, ECF No. 175.

First, the court fnds that M iniûeld failed to dem onstrate good cause and lack of

prejudice to justify bringing back the conspiracy alleged in Count Three as to any previously

dismissed defendants.Second, the court fmds that a j 1985 clnim would be futile, even if

allowed to pzoceed against Sills alone. Pardzian, 535 F.3d at 298 (citing HCMF Co . v. M en,

238 F.3d 273, 276-77 (4th Cir.2001))(<fA motion to nmend should be denied only where it

would be ptejudicial, there has been bad fahh, ot the amendment would be futile.''). But

ptejudice and futility do not defeat a j 1983 against Sills and unnamed co-conspimtots as the

cloimed covez-up has long been a cental aspect of tbis case.

A.

As a pteliminary mattez, the coutt will not allow M inifeld to bring back a conspitacy

cbim, eithet undet j1983 or j 1985, ag/inst any previously dismissed defendants because

M inifeld has not demonstrated good cause to wartant bringing back dislnissed parties and

because these defendants would be pzejudiced. Indeed, the case has moved on after Miniûeld

dropped Count Three against every W inchester Police Department defendant as well as

Bradford m ore than one yeat ago. Depositions have been taken of several witnesses and

dispositive motions havebeen flled. It would be manifestly unfait and prejudicial to the

defendants voluntarily dismissed in 2018 to be brought back into this case without having.had

a fIA11 opporttznity to participate in their defense. The case currently proceeds against only one

named defendant and the cout't finds no reason to bring back othets.

The court has considered whether M inifield demonstrated good cause to reassert a

clnim voluntarily dropped in 2018 against a myriad of disnnissed defendants. <<Rule 16$)'s

good cause standard focuses on the tim eliness of the amenclment and the reasons for its tardy

subnnission; the ptim at'y consideration is the diligence of the moving party.'' M ont ome v.

Anne Anmdel C . M land, 182 F. App'x 156, 162 (4t.h Cir. 2006). The Fourth Circuit has

found that discovering a new defense upon closer review of the available m aterial is

insufficient to show good cause for leave to amend, even if the opposing party had notice as

to the availability of tllis defense. Parvizian, 535 F.3d at 298. Essentially, the party must show

a jusdfkation for the lack of timeliness of the amendment as well as relative Hiligence on the

part of the moving patty. Cook v. Howard, 484 F. App'x 805, 816 (4th Cir. 2012). The record

shows neithet justocadon not diligence.

W hen asked at the Februaty 13, 2020 heating to provide a basis for moving to add back

mtlléple defendants on this previously abandoned clqim , M iniheld's counsel pzovided three

reasons: (1) the existence of private commuications between officers evidenced by Ivins and

Sills' depositions; (2) the additional eyewitness account in Kayla Friesen's deposition; and (3)

Bradford's clnimed testimony that no offcezs discussed hncling a gtzn under M inifield at the

scene. N one of these reasons to recall dismissed defendants withstands scrtztiny.

First, M iniheld's counsel argued that Offkers Sills and Ivins had been deposed and

teqto ed that they communicated with other officets by means other than official police radio,

suggesting an opportunity to conspite and implicating Ivins in the alleged conspiracy. But

there is nothing new about this testimony, as Minifield made allegations of çTrivate

Communications Between Police Officers'' in her Fourth Amended Complaint filed in 2018.

Fouzth Am. Com pl., ECF No. 117 at 17-18. As detailed in paragraphs 116 thtough 119 of the

Foul'th Amended Complaint, M iniheld alleged that the officers on the scene ffengaged in

hidden commurzicadons .. . when they discussed the events and circum stances surrounding

p'LondAe) Miniûeld's death and specifk conduct in covering up the same.'' 1d., at ! 119.

M inifield had enough detail regatding this contention in 2018 when the Fourth Amended

Complaint was filed that she speciûcally clsimed that ffgajpproximately Twentrhve (25)

instances of communications being taken off the police radio and conducted via laidden cell

phone communications.'' Id. at ! 117 n.2. In short, the clnim of secret communicadons

between the ofhcers facilitaéng the conspiracy is nothing new as it was expzessly pled as part

of the cbim Minifield agreed to voluntnrily drop in 2018. Finally, even if Sills' and lvins'

deposition testimony as to the off-line communications was tttzly new to M iniheld, it is

difhcult to tmderstand why Miniheld waited until January 2020 to seek renewal of the

conspitacy clcim against Ivins as the relevant depositions were completed on M ay 28, 2019.

At the hearing, counsel for M inifield stated that while the depositions are not new, identifying

the gap in radio communications was discovered by counsel recently. However, this fails a

showing of Hiligence, required by the good cause standard.

Second, M iniheld relies heavily on the testimony of eyewitnesses Green, Grafton and

Friesen that they saw D'Londre M inifeld on the chain-link fence and moved to the ground

by multiple offcers. M iniheld argues that these ovel't steps implicate other officers at the

scene itl the conspiracy, either as active contdbutors or as passively complicit. Although Green

and Gtafton were not deposed untilluly 24, 2019 and Friesen not untillanuary 23, 2020, there

is notlaing new ita their testimony suggestive of a conspiracy to cover up a police shooting. At

the hearing and in bziefs, M iniheld focuses on the tension between the directly conflicting

nazratives, but this conflict is not new.ln fact, the Fourth Amended Complaint, flled August

14, 2018, recounts press reports that Green saw <<a whole bunch of police pull him off the

fence and slam him on the ground and start doing CPR,'' ids at ! 133, and that Friesen ffsaw

police shoot p 'Londrej Minifield as he was about to climb a fence.'' Lc.k at !J 138. The fact

that Green and Friesen had provided contemporaneous statements that M inifield was on the

fence at the time they heard a gunshot and was latet taken off the fence by law enfotcement

has been well known to M itniheld throughout this case. Certainly,she was aware of those

witness accounts when she voluntnrily dismissed allCity of W inchester officers in 2018.

fzom the three accounts of D'LondreM iniûeld has pointed to no new insight derived

Minifield's death that would justify asserting Count Three agninst defendants dismissed long

ago.

Thitd, M iro eld strivesto establish good cause by atguing that former defendant

cottoborates M iniheld's clqim that no gtm was found onIu sten Btadfotd's depositâon

D'Londte M inifield. W ith this, M iniheld seeks to implicate Bradford and the officers present

at the scene of D'Londte Minifeld's death in a conspiracy to plant a gun. M inifeld asks the

cotzrt to focus on page 179 of Bradford's testimony, suggesting it bteathes new life into her

conspitacy cllim . P1.'s Br. Supp. M ot. To Am., ECF No. 202-1, at 179. Review of her

testim ony suggests otherwise. Accotcling to Minifeld's representations, Bradford tesdhed that

she did not hear any W inchester Police Departm ent officers state that they fopnd a gun under

or neaz D'Londte M inifield. M iniheld argtzes that conversation at the scene would natuzally

center on a pm if one had been found. Therefore, M itaiheld concludes, Bradford's lack of

mem ory of any such conversation is evidence that the gtm was planted later, consistent with

pbintiff's conspiracy theory. However, Bradford's deposition cleatly teflects that she said

rfoh l don't knom '' in tesponse to a question about what she saw or heard at the scene.)

Bradford agnin states, <<I don't remember if they were talking or noty'' when ptessed, and when

asked whether she overheard discussion about specific subject matter, she again stated, <<No.

I don't remember.'' J.z at 178-79. Bradford's failtue of recollection does not consdtazte new

evidence that the officets coveted up the planting of a gtm undet D'Londte V nifield, as

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plaintiff suggests. ln sum , M inifield has not demonstrated good cause sufficient to bring back

the j 1985 conspiracy agninst the previously disrnissed defendants.

Fllrfher, bringing back Count Thtee as to any new defendants would am ount to unfait

prejudice.'At the request of the parées, the ttial of this case, initially brought in 2017, has been

condnued several fimes and is now is set for April 13, 2020. To allow M iniûeld to add multiple

defendants back to the case after discovety has closed and summary judgment moéons ftled

and argued would olzly serv'e to delay the trial of this long languishing case. The delay in this

case is atttibutable, in part, to plnintiff's lack of timeliness and Hiligence. M inifield's counsel

chose to voluntatily drop Count Three in 2018 and conceded the absence of evidence of

excessive force on the part of Officer Ivins itl open court on July 10, 2019. To join new

defendants on the eve of trial subjects them to the outcome of proceedings in which they have

been unable to participate for over a year and denies them the fair opportaznity to prepare theit

defense. Justice would not be served by futthez delay in tlnis case occasioned by counsel's

change of heart on proceeding ar inst defendants previously disnnissed.

B.

The court tatns to the m atter of reviving Count Thtee agninst Ofhcer Sills alone, eithet

as a j 1985 or j 1983 conspiracy clnim. Sills cannot clnim prejudice as she has had the full

opporttznity to participate in her defense and develop the case, as opposed to the defendants

M inifield abandoned some time ago. Additionally, she cannot cbim surprise as the theory of

a conspitacy has been an animating feature of tllis case since its inception. M oreover, while

the coutt did not ftnd good cause sufûcient to reintroduce defendants long dismissed, the

existence of admissible evidence that has been generated since Count Three's dismissal, which

cortobotates the conflicting cover-up natrative asserted by M iniûeld in the Complaint, is

sufhcient to revive a Count Three conspiracy claim against the remaining defendant, Sills. The

cotut evaluates the futility of a conspiracy clnim under j 1985 and j 1983 below.

The court finds that lacking any allegation of racial animus motivating the clnimed

cover-up, reassertion of a civil rights conspizacy to violate j 1985 would be futile. To sutvive

a motion to disnniss, Count Tlltee must ffstate a cbim to relief that is plausible on its face.''

Ashcroft v. I bal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Co . v. Twombl , 550 U.S.

544, 570 (2007:. The plausibility standatd requites more than KTa sheet possibility that a

defendant has acted unlawfllllp'? Lda fT hteadbate recitals of the elements of a cause of action,

supported by m ere conclusory statements, do not suffke.'' Id. Therefore, in considering a

motion to disnniss for faillzte to state a cllim, the court must accept all factual allegations as

true, dtaw teasonable inferences in favor of the non-m oving party, and zesolve all ambiguities

in favor of the non-moving patty. Erickson v. Patdus, 551 U.S. 89, 94 (2007).

Miniheld failed to state a plausible cllim for j 1985(3) conspitacy. Section 1985provides a cause of action for civil conspiracy:

If two or more persons ... conspire ... for the purpose ofdepriving, either directly or indirectly, any person oz class ofpersons of the equal ptotection of the laws, or of equal privileges

and immunities under the laws ... whereby anothet is injtued inllis person or property, or deprived of having and exercising anyzight ot privilege of a citizen of the United States, the party so

itjured or deprived may have an action for the recovery ofdamages, occasioned by such injuty oz deprivation, against anyone or m ore of the conspirators.

42 U.S.C. j 1985(3). Simmons v. Poe, 47 F.3d 1370, 1376 (4t.h Cir. 1995). ln order to

establish a sufhcient cause of action for j 1985(3) conspitacy, a plaintiff must prove: (1) a

conspilucy of two oï moêe pezsons, (2) who are motivated by a specifc class-based, iavidiously

discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of zights secured by

the law to all, (4) and which results in injuly to the plaintiff as (5) a consequence of an overt

act committed by the defendants in connection with the conspiracy. Simm ons, 47 F.3d at

13769 See also Griffin v. Breckenrid e 403 U.S. 88, 102-03, 91 (1971). The Fourth Circuit

fastidiously evaluates j 1985 cl/ims, stating that ffgtlo avoid eviscezation of the ptuposes of

quali:ed immunity, courts have thus required that plaintiffs alleging utalawftzl intent in

conspiracy cllims under j 1985(3) or j 1983 plead speciûc facts in a nonconclusory fashion to

survive a motion to disnaiss.'' Gooden v. Howard Ctp, Md., 954 F.2d 960, 969-70 (4th Cir.

1992).

Minifeld's j 1985 conspiracy clnim is futile 'because it insufhciently alleges racial

animus. The clnim must plead motivation by f<racial,or perhaps otherwise class-based,

invidiously disctiminatory animus.'' Hatdson v. Ptince W illiam C . Police De 't, 640 F. Supp.

2d 688, 708 fn 4 (E.D. Va. 2009)9 Ca enters v. Scott 463 U.S. 825, 835 (1983). The Fotuth

Circuit has affirmed that zacial animus presents a llkh bar. McFad en v. Duke Univ., 786 F.

Supp. 2d 887, 969 (M.D.N.C. 2011), aff'd in att rev'd in art dismissed in art sub

nom. Evans v. Chalmers, 703 F.3d 636(4th Ciz. 2012). Racial animus ffimplies more than

intent as volition or intent as awareness of consequences. It implies that the decisionm aket ...

selected or reaffirmed a patticular course of action at least ita part fbecause of,' not m ezely çin

spite of,' its adverse effects upon an identifiable group.'' ld. at 271-72 (citadons omitted).

ffTl'lis clisctiminatory intent must be shared by a1l of the conspirators, and Twillful blindness' to

22

the disctiminatory intent of others

See Simmons. 47 F.3d at 1378.

is insufficient to establish a cbim under j 1985.:7 Id.;

M iniheld fails to demonstrate that the aEeged cover-up conspiracy involving Sills and

others was racially m otivated. The plealings neither explicitly allege racial animus nor do they

suffkiently asset't it thtough infetence. The pleading mentions: (1) D'Londze Miniûeld was a

twenty year o1d Aftican American male, ECF No. 117 at 2; (2) ffp tondreq Miniheld was

aware of the stories, as the entire public is - black man, doing nothing wrong, shot to death

by overzealous, sttessed out, overworked, police officers who lack adequate training because

the Municipality (WPDI does not deemit important to train 33 offkers on the use of excessive

force, how to deal wit.h the African-American community, ot even on the appropriate

zequitements of a simple stopy'' Id. at 32-339 (3) a fist fkht among ffntzmerous black males''

insdgated the police chase, Id. at 89 (4) the tace of the suspects was communicated over the

tadio, J-I.L at 9, 28; and (5) ffshootâng and killing an unatmed black man who is fleeing police,

who is not suspected of a crim e, and who does not fit the description of the cutrent suspect,

is a clear violation of the constitutional right to be free ftom the use of excessive force,'' ECF

No. 117 at 15.

The Fourt.h Circuit has held that a m ere statement that tlae officers were white and that

the alleged victim was black is insuffkient to show racial animus. Gooden v. Howard Ctp,

Md., 954 F.2d 960, 969 (4th Cit. 1992). The Fotuth Circuit has also held that the existence

racial tension in the community isinsuffcient to show the conspirators acted with tacial

animus. M cFad en, 786 F. Supp. 2d at 969. Additionally, even if plaintiff could plausibly clnim

that Sills was motivated to shoot D'Londre Mirliheld because of his race, she could not also

cbim that Sills, and all the othez offcezs in the alleged conspirac'y, were motivated by race to

cover up the facts of the death. As the court noted ip W ilkerson v. Thtift, 124 F. Supp. 2d

322, 328-30 (W.D.N.C. 2000), tçrtlhere is another reason for the Defendants' conduct wbich

is just as likely as racial animus: . . .to avoid discipline for the alleged use of excessive force.''

Indeed, not only does M inifield fail to plead zacial animus, she affitmadvely pleaded an

atternative zeason for the covet-up. Patagtaph 227 states: ff-fhete is no allegation that

p 'Londzeq Minifield tlueatened or was ever a threat to any ofâcer or any other pezson. Given

the absence of said conduct, the W PD A inchester Police Depzrtment) Defendants have

opted to conceal the truth rathez than see an officer face the consequences for violating the

lam'' Fourth Am. Compl., ECF No. 117, at ! 227. A j 1985 conspiracy cllim would not

stavive a motion to dismiss, the court will not resurrect Count Thre'e under this theory of

liability.

C.

Nevertheless, the fact that the colzrt finds a j 1985 conspitacy under Count Three

facially dehcient does not mean that the clnimed conspiracy to cover up the shooting is not

properly a part of this case.

As noted pzeviously, it is uncleat whether Count Three clnims a violation of j 1985 or

j 1983. As in Hatrisonv. Plince William C . Police De 't, 640 F. Supp. 2d 688, 708 fn 4 (E.D.

Va. 2009), Tfltjhe Complnint can be read to assert a conspiracy cbim under 42 U.S.C. j 1985(3)

as well as a similar claim under 42 U.S.C. j 1983.1' To plead civil conspiracy under j 1983,

Minifield'must state facts sufûcient to allege plausibly that the offkers ffacted jointly in concert

and that some overt act was done in filttherance of the conspiracy wllich resulted in

24

Flirziheld's) deprivation of a constimtional right (91 this case the zight to access the courtsl.''

Ilinkle v. City of Clarksburg, W .Va., 81 F.3d 416, 421 (4th Cir. 1996). Actingjointly can include

when Ttone offcer watches an open breach of 1aw and does nothing to seek its prevention.''

Hafner v. Bzown, 983 F.2d 570, 578 (4th Cir. 1992). The Fotttth Citcuit also has held that the

pleading, to survive a motion to dismiss, but also plausibly state a ffcom mon putpose.''

Ruttenberg v. Jones, 283 F. App'x 121, 132 (4th Cir. 2008).

While the j 1985(3) conspitacy cbim is decidedly futile, a j1983 conspiracy cbim

founded on the clnimed cover-up is not. Iqinltle v. City of Clarksburg, W .Va., 81 F.3d 416, 421

(4th Cit. 1996)) (fToestablish a civil conspitacy undet j1983, Appellants must present

evidence that the Appellees acted jointly in concert and that some overt act was done in

fattherance of the conspiracy wlnich resulted in Appellant's depzivation of a constimtional

right (in this case the right to access the cotlztts.'); Hafner v. Brown, 983 F.2d 570, 577 (4th

Cit. 1992). Rule 8(e) of the Federal Rules of Civil Procedure states that ffkjleadings must be

construed so as to do justice.'' Given the facts of thij case, justice reqlnites that the court

constnze Count Thtee as a conspitacy to cover up the shoodng under j 1983 and allow it to

proceed to tzial agqinst defendant Sills and unnam ed co-conspirators.6 lndeed, the clnimed

cover-up has been a central feattzre of this case since its outset.

The coutt has alteady concluded that btinging back dismissed defendants would unduly

prejudice them. There is no legal requitement that a conspiracy claim proceed against all

nnmed conspirators. <rA plaintiff need not sue all conspitators; he may choose to sue but one.''

6 Because the cover-up cbim is dependent upon the diametrically differing accounts of the shooting, sufficientmaterial facts in dispute exist to defeat a Rule 56 motion as the cover-up conspiracy clnim.

Walker Distrib. Co. v. Luck La er Brewin Co., 323 F.2d 1, 8 (9th Cit. 1963). As the coutt

recently noted in Arbelaez v. City of New York, No. 17-CV-6543 gMIR), 2019 WL 5634174,

at *3 (S.D.N.Y. Oct. 31, 2019):

ff'l'o prove a j 1983 conspiracy, a plnintiff must show: (1) anagteement beG een * 0 Or more state actors O1: beG een a state

actot and a phvate endty; (2) to act in concezt to inflict anunconstitutional itjury; and (3) an ovel't act done in furtheranceof that goal causing damages.'' Pan burn v. Clzlbertson, 200 F.3d

65, 72 (2d Ciz. 1999). Critically, howevez, the law does not requitethat a plaintiff sue all m embers of a conspitacy in order tomnintnin a suit against any of them . See e. . Lesavo v. Lane,304 F. Supp. 2d 520, 537 (S.D.N.Y. 2004), aff'd in' part andvacated in part on other gtounds sub nom. Lesavo v. Gatnlllo-Wilson, 170 F. App'x 721 (2d Cir. 2006)9 see also,e.g., U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 12

51 (10th Cit. 1988) (<Tlt is axiomatic that since coconspirators arejointly and severally liable for all damages caused by a conspiracy,a private plnintiff need not sue all the conspiratots, but maychoose to proceed again' st any one or more of them.'' (intetnalquotation marks onnittedl). Indeed, holding conspiratorsindividually hable for their co-conspitatozs' acts is the wholepoint of conspiracy law.

Therefore, a j 1983 conspiracy cbim may only be btought against defendant Sills and unnamed

co-conspiratots.

The Complnint, taken as a whole, suffciently pleads a clnim under j 1983 that Sills and

unnam ed co-conspitators conspired to engage in a cover-up. lndeed, the ftrst tllree paragraphs

of the Fourth Amended Complaint frame the TTNA'I'URE OF ACTION'' as follows:

1. Tllis is a civil acdon for damages and injunctive reliefunder 42 U.S.C. j 1983, 42 U.S.C. j 1986, 42 U.S.C. j 1988$),and the common law of the Commonwea1th of Virginia adsingfrom the wiIISII and wanton killing of D'Londre M inifield byW inchester police officers who then attem pted to cover up thei.rgross use of excessive forcè by asserting that p 'LondreqMiniheld shot himself in the back of the head while beingpursued by 1aw enforcement.

2. From February 28, 2016, D efendants, individually and inconcert, conspired to cover-up the events, and circlpm stancessurounding a police homicide. They, individually and in concert,covered up a police officer's unlawful discharge of a flzelt'm,

which tet-minally injuted an unarmed t'wenty (20) year old AfdcanAmerica (sic) male evading unlawftzl arrest, by assetting theDecedent committed suicide.

3. Ptoduced zepotts relied on the inconsistent and factuallyimpossible false statements given by W inchester police officetswho wete ptesent and/or participated in a foot purstlit ofD'Londre M inifeld as he fled unlawful detninment and policeapptehension.

Folxt'th Amended Complaint, ECF No. 117, at 15 1-3. Many other allegations reference the

conspiracy to cover up the shooting. See ida at !! 94, 97-99, 116-126, 141-152, 155-160, 190,

195, and 227. The statements, taken together, present a narrative that identihes an unlawful

act witnessed by others, motivation to covez up the unlawflzl act, opportunity for a ffmeeting

of the mindsy'' overt steps taken in Glttherance of the cover-up, and injury to the sutvivor,

plnintiff-M iniheld, whose access to the truth and evidence were allegedly hampered by the

conspitacy. Therefore, the coutt fmds that the Com plaint, as it stands, suflkiently pleads a

theory of j1983 conspitacy.

W .

For these reasons, the coutt cannot conclude that it is in the interests of justice to allow

M iniûeld to zestat't her lawsuit against defendants previously disrnissed. The case will ptoceed

to tdal agoinst defendant Sills undez Counts Two and Six along with the j 1983 conspizacy in

Count Thre' e. There is no reason to delay the present tdal as the j 1983 conspiracy clnim relies

on the same evidence as the excessive force and wrongful death cbim s, and the cover-up

allegadons have long been a part of this case. Consequently, there can be no cbim of sutw ise

oz prejudice to defendant Sills. The trial will continue as originally scheduled on April 13, 2020.

An appropriate Order will be entered.

/+f

# day of Mazch, 2020Enter: 'rlais

. a -* AM ichael F. ans '

Chief U 'ted States Districtludge

28