PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2060

FRANK MORGAN,

Plaintiff - Appellant,

v.

J. D. TINCHER, individually and in his official capacity; OFFICER KEVIN CONLEY, individually and in his official capacity,

Defendants - Appellees,

and

LOGAN COUNTY COMMISSION, A West Virginia county government; LOGAN COUNTY SHERIFF SONYA M. DINGESS-PORTER, individually and in her official capacity; DEPUTY BARRY MYNES, individually and in his official capacity; DEPUTY JOEY SHEPARD, individually and in his official capacity; DEPUTY NICK TUCKER, individually and in his official capacity; CITY OF LOGAN/CITY OF LOGAN POLICE DEPARTMENT, West Virginia municipal government/municipal governmental agency; CITY OF LOGAN POLICE P. D. CLEMENS, individually and in his official capacity; OFFICERS/DEPUTIES JOHN DOE, individually and in his official capacity,

Defendants.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, Chief District Judge. (2:18−cv−01450)

Argued: October 24, 2023 Decided: January 3, 2024 USCA4 Appeal: 21-2060 Doc: 46 Filed: 01/03/2024 Pg: 2 of 18

Before THACKER and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.

Reversed, vacated, and remanded with instructions by published opinion. Senior Judge Keenan wrote the opinion, in which Judge Thacker and Judge Quattlebaum joined.

ARGUED: Kerry Alexander Nessel, NESSEL LAW FIRM, Huntington, West Virginia, for Appellant. Drannon L. Adkins, PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: Abraham J. Saad, GLAZER SAAD ANDERSON, Huntington, West Virginia, for Appellant. Wendy E. Greve, PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC, Charleston, West Virginia, for Appellees.

2 USCA4 Appeal: 21-2060 Doc: 46 Filed: 01/03/2024 Pg: 3 of 18

BARBARA MILANO KEENAN, Senior Circuit Judge:

The central issue in this appeal involves a discovery violation that was not revealed

to the requesting party until near the end of trial. A jury found in favor of a police officer

on allegations of excessive force and other claims. We consider whether the district court

erred in denying the plaintiff’s post-trial motion for relief from judgment under Federal

Rule of Civil Procedure 60(b)(3), based on the officer’s failure to disclose another, similar

excessive-force lawsuit that had been filed against him.

Upon our review, we conclude that this discovery violation was misconduct under

Rule 60(b)(3), and that the plaintiff satisfied the other factors required for relief under that

Rule. We therefore hold that the district court abused its discretion in denying the

plaintiff’s request for relief under Rule 60(b)(3). We reverse the district court’s ruling,

vacate the court’s entry of final judgment against the plaintiff, and remand the case to the

district court with instructions to award the plaintiff a new trial.

I.

Frank Morgan filed this action in the Southern District of West Virginia against J.D.

Tincher, who at that time was an officer with the Logan Police Department (the police

department) in West Virginia. 1 In his complaint, Morgan alleged clai