The U.S. Court of Appeals for the Eleventh Circuit has revived a suit filed by the parents of Anthony Hill, a 27-year-old Afghanistan veteran who was naked, unarmed and suffering a mental episode in March 2015 when a responding officer shot and killed him as he approached the patrol car.
Hill's parents, Carolyn Giummo and Anthony Hill Sr., sued DeKalb County police officer Robert Olson, the police department, the then-county CEO and the Board of Commissioners in Georgia's Northern District Court asserting federal claims for violations of Hill's constitutional rights, as well as state wrongful death claims.
The county defendants moved to have the suit dismissed for failure to state a claim under the Federal Rules of Civil Procedure. Last year, U.S. District Judge Timothy Batten dismissed it after ruling a response pleading was filed too late, adding that, even if missing the deadline was "excusable neglect," he still would have tossed the suit on the merits because the plaintiffs' "wholesale failure to respond to the arguments raised in the motion to dismiss."
An unpublished opinion released Tuesday written by Court of Appeals Chief Judge Ed Carnes with the concurrence of Judges Adalberto Jordan and Robin Rosenbaum said Batten abused his discretion by using a court rule allowing a late response filing to be interpreted as a lack of opposition by the filing party.
As detailed in the opinion, the plaintiffs had 17 days to file a response to the defendants' motion to dismiss under the court's local rule 7.1(B) and a federal rule. Under 7.1(B), failure to meet the filing deadline "shall indicate that there is no opposition to the motion."
According to the order and court filings, the plaintiffs argued they missed the deadline because of a "calendaring error" by a California attorney assisting the suit, who thought they had 21 days to respond. They argued that the missed deadline constituted "excusable neglect" under the Rules of Civil Procedure, but in his order Batten wrote the court "doubts that this is so," citing precedent that "an attorney's misunderstanding of the law is not excusable neglect."
Even so, Batten wrote that he reviewed the "belated response brief" and "it does not even address the arguments raised" in the motion to dismiss.
In reversing Batten's order, Carnes wrote that the district court "abused its discretion by interpreting rule 7.1(B) as permitting it grant the defendants' motion to dismiss based solely on the plaintiff's failure to respond in opposition," he wrote.