Monroe v. City of Charlottesville, Va., No. 08-1334.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Beam
• Citation: 579 F.3d 380
• Parties: Larry MONROE, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. The CITY OF CHARLOTTESVILLE, VIRGINIA; Timothy J. Longo, Sr., In his official capacity; James Mooney, Police Officer in his official capacity, Defendants-Appellees.
• Docket Number: No. 08-1334.
• Decision Date: 31 August 2009

579 F.3d 380 Larry MONROE, on behalf of himself and all others similarly situated, Plaintiff-Appellant,
v.
The CITY OF CHARLOTTESVILLE, VIRGINIA; Timothy J. Longo, Sr., In his official capacity; James Mooney, Police Officer in his official capacity, Defendants-Appellees. No. 08-1334. United States Court of Appeals, Fourth Circuit. Argued: May 12, 2009. Decided: August 31, 2009.

[579 F.3d 381]

ARGUED: Neal Lawrence Walters, Scott Kroner, PLC, Charlottesville, Virginia, for Appellant. Alvaro A. Inigo, Zunka, Milnor, Carter & Inigo, Ltd., Charlottesville, Virginia, for Appellees. ON

[579 F.3d 382]

BRIEF: Deborah C. Wyatt, Wyatt & Associates, Charlottesville, Virginia, for Appellant. Richard H. Milnor, Zunka, Milnor, Carter & Inigo, Ltd., Charlottesville, Virginia, for Appellees.

Before SHEDD, Circuit Judge, C. ARLEN BEAM, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation, and JOSEPH F. ANDERSON, JR., United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Senior Judge BEAM wrote the opinion, in which Judge SHEDD and Judge ANDERSON joined.

OPINION

BEAM, Senior Circuit Judge:

Larry Monroe appeals the district court's dismissal of his § 1983 action, alleging the court erred in (1) denying his motion for class action certification, (2) dismissing his Fourth Amendment claim for failure to plead facts sufficient to show a seizure, and (3) finding no equal protection violation because a racial classification had not occurred. We affirm.

I.

In the spring of 2002, Charlottesville Police began investigating a serial rapist who was consistently described by victims as a youthful-looking black male. At least three composite images were formed based on descriptions given by victims over the course of the investigation. In addition to the descriptions, however, officers also had samples of the assailant's DNA. In an effort to apprehend the attacker, officers approached individuals in the community who matched the general description and who did not have a DNA sample on file with police, and asked those individuals if they would submit a DNA specimen. Those approached varied somewhat in height, build, and skin tone, but all were African-American. The individuals came to the attention of officers through various means, but in total, 190 youthful-looking black males were stopped over several years, including Monroe, who was approached at his home by Officer Mooney. Other individuals were stopped on the street by officers and asked to submit a DNA sample.¹

Monroe sued the City of Charlottesville and individual officers, including Officer Mooney (collectively, "the City"), under § 1983 alleging violations of the Fourth and Fourteenth Amendments. Specifically, Monroe alleged an equal protection violation on the grounds that he was stopped because he was black, and because officers do not perform such "dragnet" stops of individuals when the victim describes an assailant as white. In addition, Monroe alleged he was subject to an unreasonable seizure when Officer Mooney came to Monroe's home and when Monroe gave bodily fluids for DNA analysis. Monroe sought to pursue his equal protection claim as a class action.

The district court, on the City's Rule 12(b)(6) motion,² dismissed that portion of

579 F.3d 383

Monroe's equal protection claim that alleged a violation on the grounds that Monroe was approached because he was black. Citing Brown v. City of Oneonta, 221 F.3d 329 (2d Cir.2000), the district court held that the government does not expressly classify a person based on race, and the Equal Protection Clause is not implicated, when officers limit their investigation to only those persons matching a victim's description of an assailant. Monroe could proceed, however, on the claim that the City does not investigate crimes the same way when the assailant is described as white. The district court also dismissed Monroe's claim that he was unreasonably seized when Officer Mooney came to Monroe's home because Monroe failed to state facts sufficient to show the consensual encounter escalated to a seizure. Monroe was granted leave to amend his complaint, however, and his claim that his bodily fluids were unreasonably seized was allowed to proceed.

Monroe's amended complaint alleged the same claims as the first complaint, but with more factual allegations. Specifically, regarding Monroe's Fourth Amendment claim, he asserted a seizure on account of Officer Mooney coming to Monroe's home in uniform, asking for a DNA sample, and failing to tell Monroe he could decline the request. In addition, because the encounter was at Monroe's home, and based on "[t]he state of relations between law enforcement and members of minority communities," he alleged that it was objectively reasonable to feel he was not free to terminate the interaction.

The City again moved to dismiss for failure to state a claim. And, the district judge again dismissed that part of Monroe's equal protection claim alleging a violation because officers only approached him because he was black, but allowed the remaining portion to proceed. Also, the district judge again dismissed Monroe's claim that he was unreasonably seized, stating that the newly alleged facts did not cure the original deficiencies. Monroe's remaining unreasonable seizure claim—his giving Officer Mooney bodily fluids for DNA analysis—was permitted to proceed. The district court then set the date for a class certification hearing and established July 13, 2007, as the deadline for the parties to file memoranda on that issue.

Along with its motion in opposition to class certification, the City submitted an affidavit from Officer Sclafani reciting a conversation he had with Monroe where Monroe made several statements undermining his fitness to serve as a class representative, including: Monroe's attorneys would not return his calls, the attorneys originally approached him about filing suit, he only learned the suit was filed in his name after reading about it in the paper, the lawsuit made him look bad, and he was not interested in pursuing money damages against Officer Mooney. Monroe did not file a response by the deadline and the class certification hearing was held on July 20, 2007. At the hearing, the central issue was Monroe's adequacy to represent the class. Monroe, however, did not attend the hearing and did not submit an affidavit in response to Officer Sclafani's. Rather, Monroe's attorney testified that she always returns calls and that Monroe originally approached her about filing suit. In addition, Monroe's attorney submitted Monroe's deposition testimony as evidence of his adequacy to serve as a class representative.

579 F.3d 384

At the end of the hearing, the district judge asked, "Any other evidence to come in?" Monroe's attorney responded, "No further evidence, Your Honor." Yet, on July 23, 2007, Monroe filed an affidavit refuting Officer Sclafani's affidavit, and the City opposed the submission as untimely.

In its order, the district judge declined to consider Monroe's untimely affidavit, and denied Monroe's motion for class certification because Monroe failed to show that he would adequately represent the class. The court relied in large part upon Officer Sclafani's affidavit. The district court also relied on the fact that in Monroe's deposition, Monroe could not recognize the complaint and had little to no knowledge about the lawsuit. Monroe was allowed to proceed on his individual claims of (1) an equal protection violation based on the City's alleged failure to institute similar investigation methods when the assailant is described as white, and (2) the unreasonable seizure of his bodily fluids. Rather than proceed, however, Monroe filed a voluntary motion to dismiss his remaining claims without prejudice. To secure the City's consent to Monroe's motion and establish appellate jurisdiction, the parties agreed that Monroe would be precluded from filing suit on those claims in the future—rendering the dismissal one with prejudice. The district court then dismissed Monroe's remaining claims.

Monroe now appeals the denial of class certification, the dismissal of his Fourth Amendment claim, and the dismissal of his equal protection claim.

II. A. Class Certification

The district court's denial of class certification is reviewed for an abuse of discretion, and such decisions are "generally accorded great deference." Simmons v. Poe, 47 F.3d 1370, 1380 (4th Cir. 1995). Rule 23(a) of the Federal Rules of Civil Procedure establishes four class certification requirements: (1) a class so numerous that joinder of all members is impracticable; (2) questions of law or fact common to the class; (3) a representative party whose claims and defenses are typical of the class's claims and defenses; and (4) a representative party that will fairly and adequately protect the class's interests. Id. A plaintiff bears the burden of proving these requirements. Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir.2006).

The district court denied Monroe's class certification on the grounds outlined in Rule 23(a)(4)—that Monroe would not fairly and adequately represent the interests of the class. Monroe alleges two errors. First, Monroe alleges the district court erred in denying admission of his affidavit as untimely when no timing for the admission of evidence was discussed and the affidavit countered Officer Sclafani's affidavit. Second, Monroe claims that even if his affidavit is not considered, Rule 23(a)(4) was satisfied because he was not simply lending his name to a suit controlled entirely by the class attorney as the district court seemed to find.

The district court did not abuse its discretion in refusing to consider Monroe's untimely affidavit. When deciding a motion for class certification, a district court does not accept the plaintiff's allegations...