Sappington v. Rogers County Board of County Commissioners

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

NATHAN SAPPINGTON,

Plaintiff,

v. Case No. 18-cv-00423-JFH-JFJ

ROGERS COUNTY BOARD OF

COUNTY COMMISSIONERS and

SCOTT WALTON, in his official

capacity,

Defendants.

OPINION AND ORDER

This matter comes before the Court on the Motion for Summary Judgment [Dkt. No. 53]

and the Motion to Strike Sham Affidavit of Nathan Sappington and to Impose Rule 56(h) Sanctions

[Dkt. No. 69], filed by Defendants Rogers County Board of County Commissioners (“Board of

County Commissioners”) and Rogers County Sheriff Scott Walton (“Walton”) (collectively,

“Defendants”). For the reasons set forth below, the Court grants summary judgment in favor of

Defendants and denies Defendants’ Motion to Strike.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Nathan Sappington (“Plaintiff”) was employed by the Rogers County Sheriff’s

Office (“RCSO”) between June 20081 and August 2017. Dkt. No. 22 at 2; Dkt. No. 53 at 11; Dkt.

No. 59 at 6. In 2017, Plaintiff served as a Jail Administrator for the Rogers County Jail (“Jail”).

Id. According to Plaintiff, he returned from a period of medical leave in May 2017 and discovered

1 In his Second Amended Complaint, Plaintiff alleges his employment with RCSO began or about

July 1, 2008. Dkt. No. 22 at 2. In their Motion for Summary Judgment, Defendants assert that

Plaintiff’s employment with RCSO began in June 2008. Dkt. No. 53 at 11. This statement is

admitted by Plaintiff. Dkt. 59 at 6.

that incidents he considered to be life-threatening were not reported to the Oklahoma State

Department of Health as required by Okla. Stat. tit. 74, § 192 and Okla. Admin. Code 310:670-5-

2. Dkt. 22 at 2-5. Plaintiff claims that he was wrongfully discharged by RCSO in August 2017 in

retaliation for raising concerns regarding these incidents and the failure to report them. Dkt. No.

22 at 2-5.

Plaintiff filed this suit in the Rogers County District Court on July 27, 2018 alleging he

was wrongfully discharged: (1) for acting in accordance with Oklahoma public policy; and (2) in

violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111-12213. Dkt. No.

2-1. The case was removed to this court on August 17, 2018. Dkt. No. 2.

Defendants moved to dismiss both claims asserted in the Complaint. Dkt. No. 6. Plaintiff

filed an Amended Complaint, including additional allegations as to his wrongful discharge claim

and omitting the ADA claim altogether. Dkt. No. 12. Defendants moved to dismiss the Amended

Complaint, arguing Plaintiff had not alleged he was discharged in violation of a recognized

violation of Oklahoma public policy. Dkt. No. 14 at 3-5. The Court granted the motion to dismiss

without prejudice to the filing of a Second Amended Complaint. Dkt. No. 21. The Court stated,

“Plaintiff shall specifically allege the incidents he reported that were ‘life threatening or requiring

transfer to outside medical facility’ as set forth in OAC Section 310:670-5-2 (28).” Id.

Plaintiff filed his Second Amended Complaint on April 11, 2019, identifying three specific

incidents he reported which he considered to be life threatening: (1) the stabbing of inmate D.R.

by another inmate; (2) the possession of a noose by inmate D.K.; and (3) the assault of inmate J.S.,

while in restraints, by a Jail employee. Dkt. No. 22 at 2-3. Plaintiff alleged that he was wrongfully

discharged after he reported these incidents to his superiors and expressed concern that they had

not been reported to the Oklahoma Department of Health in accordance with Oklahoma public

policy. Id. at 4-5. Defendants moved for summary judgment arguing that Plaintiff’s wrongful

discharge claim must fail because he was not discharged but, rather, abandoned his position and

because no clear mandate of public policy was implicated by the parties’ alleged conduct.2 Dkt.

No. 53 at 10-21.

II. STANDARD

“Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1291 (10th Cir. 1999); Fed. R. Civ.

P. 56(a). “A dispute is genuine when the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, and a fact is material when it might affect the outcome of the suit

under the governing substantive law.” Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir.

2016). Only material factual disputes preclude the entry of summary judgment. Atl. Richfield Co.

v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).

The movant bears the initial burden of demonstrating the absence of a genuine issue of

material fact and its entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 670-71 (10th Cir. 1998). If the movant carries this initial burden, “the burden shifts

to the nonmovant to go beyond the pleadings and set forth specific facts that would be admissible

in evidence in the event of a trial from which a rational trier of fact could find for the nonmovant.”

Id. at 671. If the nonmovant demonstrates a genuine dispute as to material facts, the Court views

2 Defendants also argue that the Board of County Commissioners is not a proper party to the

lawsuit. Dkt. No. 53 at 21-22. However, the Court need not address this argument because its

summary judgment analysis as to the elements of Plaintiff’s wrongful discharge claim are

dispositive of the disputed issues in this case.

the facts in the light most favorable to him. Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

However, a failure of proof “concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986).

III. MATERIAL FACTS TO WHICH NO DISPUTE EXISTS

Plaintiff began working at RCSO as a jailer in June of 2008. Dkt. No. 53 at 11; Dkt. No. 59 at

6. In late 2015, Plaintiff was appointed Jail Administrator of the Rogers County Jail. Dkt. No. 53 at

11; Dkt. No. 59 at 7. From March 6, 2017 to May 1, 2017 Plaintiff was out on medical leave. Dkt.

No. 53 at 7; Dkt. No. 59 at 11. After his return, Plaintiff was assigned to oversee and implement inmate

work programs. Id. Sergeant Kellie Guess was assigned to oversee Jail operations. Id.

On March 26, 2017, inmate D.K. was discovered with a handmade noose. Dkt. No. 59 at 12;

Dkt. No. 59-19. On June 20, 2017, inmate D.R. was stabbed by another inmate with a shank crafted

from a toilet brush. Dkt. No. 59 at 12; Dkt. No. 59-17. D.R.’s assailant was charged with assault and

battery with a dangerous weapon. Dkt. No. 59-17; Dkt No. 57-18 at 3. On July 14, 2017, inmate J.S.,

while restrained in a WRAP device, was hit in the face and pushed down by a corrections officer. Dkt.

No. 59 at 13; Dkt. No. 6 (DVD 7/14/2017 10:43:06 – 10:43; 10:52:16 – 10:52:32).

On July 31, 2017, Plaintiff brought a number of incidents to the attention of Walton and

expressed concern that the incidents were not being properly handled by the Jail’s administration

including the March 26, 2017 incident involving inmate D.K., the June 20, 2017 incident involving

inmate D.R., and the July 14, 2017 incident involving inmate J.S. Dkt. No. 53 at 11; Dkt. No. 59 at

16; Dkt. No. 59-2 at 16-17; Dkt. No. 59-15 at 11, 25, 28, 35. Walton asked Undersheriff Jon

Sappington (“Undersheriff Sappington”)3 to look into the incidents reported by Plaintiff. Dkt. No. 53

at 11; Dkt. No. 59 at 16; Dkt. No. 59-1 at 7-8.

On August 2, 2017, Undersheriff Sappington presented Plaintiff with a letter addressing his

job performance and instructed him to “go to the house.” Dkt. No. 53 at 12; Dkt. No. 59 at 8, 16; Dkt.

No. 59-1 at 26-28. In the letter, Undersheriff Sappington addressed ongoing professional conflicts

between Plaintiff and Sergeant Guess. Dkt. No. 53 at 12; Dkt. No. 53-2 at 2; Dkt. No. 53-5; Dkt. No.

59 at 11, 16-17. Undersheriff Sappington advised Plaintiff:

[T]he Rogers County Sheriff’s Office is a team. Daily we are required to work

together . . . . [i]f for whatever reason you are unable to do this, your removal from

this office will be required.

. . .

If you are unable to resolve your feelings with [Sergeant Guess] it would be my

recommendation that you look for a career change. I would recommend leaving

this place after 10 years in a way that if you were to change your mind you would

have an opportunity to come back.

. . .

[F]ocus on the inmate road crews and Claremore property and maintenance and

leave the other issues for administration to handle.

Dkt. No. 53-5 at 1-2 (emphasis added).

On August 4, 2017, Undersheriff Sappington sent Plaintiff a text message instructing

Plaintiff to meet with him and Captain Virgil Carter (“Carter”)4 on August 7, 2017 at 8:00 a.m. so

that they could “explain [Plaintiff’s] options.” Dkt. No. 53 at 12; Dkt. No. 53-7 at 1; Dkt. No. 59

at 9. In response, Plaintiff stated that there was no need to meet, that he would “never step foot in

3 Undersheriff Jon Sappington is Plaintiff’s brother and is referred to as “Undersheriff

Sappington” for clarity. Dkt. No. 59-11 at 1.

4 Carter was directly above Plaintiff but below Undersheriff Sappington in Plaintiff’s chain of

command at RCSO. Dkt. No. 59-2 at 3-4.

th[e] Jail.” Dkt. No. 53-7 at 1, 3; Dkt. No. 59 at 9. Twice during the exchange, Plaintiff asked

Undersheriff Sappington whether or not he had been fired. Dkt. No. 53-7 at 2, 4; Dkt. No. 59 at

9. While the Undersheriff did not expressly answer that question, he did urge Plaintiff to meet

with him and Carter on August 7, 2017. Id. Plaintiff did not do so. Dkt. No. 53 at 13; Dkt. No.

53-1 at 29.

Plaintiff did not speak with Undersheriff Sappington, Carter or Walton again after being sent

home on August 2, 2017. Dkt. No. 53-1 at 29. His absence from work on August 3, 2017 and August

4, 2017 was documented by the Jail as administrative leave. Dkt. No. 53-6 at 2. Walton understood

that Plaintiff had been ordered to attend a meeting with Undersheriff Sappington and Carter on August

7, 2017, and that by failing to appear for the meeting, Plaintiff had effectively resigned. Dkt. No. 53-

4 at 2. On August 10, 2017, Walton signed a termination form indicating that Plaintiff had resigned,

effective August 7, 2017. Dkt. No. 53-8.

IV. ANALYSIS

A. The Burk Claim

Oklahoma adheres to the so-called American employment-at-will doctrine. Moore v. Warr

Acres Nursing Ctr., LLC, 376 P.3d 894, 898 (Okla. 2016). Under this doctrine, employers are free

to discharge at-will employees in good or bad faith, with or without cause. Id. At-will employees

do not have a cognizable cause of action for wrongful discharge unless the claim falls within the

narrow exception set forth in Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989). Darrow v.

Integris Health, Inc., 176 P.3d 1204, 1210 (Okla. 2008). In Burk, the Oklahoma Supreme Court

recognized a tort cause of action in favor of an at-will employee who is discharged “for refusing

to act in violation of an established and well-defined public policy or for performing an act

consistent with a clear and compelling public policy.” Burk, 770 P.2d at 29.

To succeed on a Burk claim, a plaintiff must demonstrate: (1) an actual or constructive

discharge; (2) of an at-will employee; (3) in significant part for a reason that violates an Oklahoma

public policy goal; (4) that is found in Oklahoma’s constitutional, statutory, or decisional law or

in a federal constitutional provision that prescribes a norm of conduct for Oklahoma; and (5) no

statutory remedy exists that is adequate to protect the Oklahoma policy goal. See McCrady v.

Okla. Dept. of Pub. Safety, 122 P.3d 473, 475 (Okla. 2005). Defendants argue that Plaintiff’s Burk

claim fails because Plaintiff was not discharged from his employment, but rather resigned when

he did not attend the August 7, 2017 meeting with Undersheriff Sappington and Carter as directed

and because his termination does not implicate a clear mandate of public policy. Dkt. No. 53 at

16-21.

It is undisputed that on August 2, 2017, Undersheriff Sappington presented Plaintiff with

the letter of admonishment and told him to go home. Dkt. No. 53 at 12; Dkt. No. 59 at 8, 16; Dkt.

No. 59-1 at 26-28. In the letter, Undersheriff Sappington instructed Plaintiff to focus on the

projects assigned to him and advised Plaintiff that his position with RCSO would be in jeopardy if

he could not resolve his conflicts with Sergeant Guess. Dkt. No. 53-5 at 1-2. Undersheriff

Sappington did not state that Plaintiff’s employment was at that time, or would be, terminated. In

fact, the only mention of potential discharge was conditioned upon Plaintiff’s failure to work

amicably with Sergeant Guess. Id. And by encouraging Plaintiff to “focus on the inmate road

crews and Claremore property and maintenance” assigned to him, Undersheriff Sappington’s letter

contemplates Plaintiff’s continued employment with RCSO.

On August 4, 2017, Plaintiff communicated with Undersheriff Sappington via text message

and twice inquired as to whether or not his employment had been terminated. Dkt. No. 53-7 at 2,

4; Dkt. No. 59 at 9. Undersheriff Sappington directed Plaintiff to meet with him and Carter on

August 7, 2017 at 8:00 a.m. Dkt. No. 53 at 12; Dkt. No. 53-7 at 1; Dkt. No. 59 at 9. Plaintiff did

not attend that meeting or return to work at RSCO. Dkt. No. 53 at 13; Dkt. No. 53-1 at 29. Jail

records reflect that Plaintiff was on administrative leave on Thursday, August 3, 2017 and Friday,

August 4, 2017 and that Plaintiff was deemed to have resigned on August 7, 2017. Dkt. No. 53-4

at 2; Dkt. No. 53-6 at 2; Dkt. No. 53-8.

Plaintiff has submitted his affidavit in which he states that he believed he was discharged

on August 2, 2017, after Undersheriff Sappington threw the letter of admonishment at him and

told him to “go to the house.” Dkt. No. 59 at 16 (stating, “It was clear to me that my brother was

firing me . . .”). Dkt. No. 59-11 at 6. However, this position is contrary Plaintiff’s prior behavior

on August 4, 2017 when he twice asked Undersheriff Sappington whether or not he had been fired.

Dkt. No. 53-7 at 2, 4; Dkt. No. 59 at 9. Moreover, Plaintiff’s subjective belief that he had been

discharged on August 2, 2017 is not sufficient to create a material issue of fact regarding whether

or not Plaintiff was actually discharged.

Ultimately, it is clear that Plaintiff’s claim that he was discharged rests in the letter of

admonishment. Dkt. No. 59-11 at 6 (stating, “It was clear to me that my brother was firing me and

the letter demonstrates it was because of my complaints . . . “). However, no reasonable jury could

find that Plaintiff was discharged based upon the words written in this letter. To the contrary,

while the letter contained admonishment, it instructed Plaintiff the expectations of him going

forward. Dkt. No. 53-5 at 1-2 (advising that “the Rogers County Sheriff’s Office is a team. Daily

we are required to work together . . .”). The letter cast a view toward Plaintiff’s continued

employment but noted conditions that must be met, which were within Plaintiff’s control. The

letter also warned Plaintiff of the consequences of his failure to meet expectations. Id. (advising

Plaintiff that: “[i]f for whatever reason you are unable to do this, your removal from this office

will be required;” and “[i]f you are unable to resolve your feelings with [Sergeant Guess] it would

be my recommendation that you look for a career change.”). In addition, the letter offered Plaintiff

advice as to how to move forward in his continued employment. Id. (advising Plaintiff to “focus

on the inmate road crews and Claremore property and maintenance and leave the other issues for

administration to handle.”). Finally, in the event Plaintiff was unable to comply with the

admonitions, the letter recommend Plaintiff leave his employment after 10 years “in a way that if

[he] were to change [his] mind [he] would have an opportunity to come back.” Id.5

The Court concludes that Defendants have demonstrated an absence of evidence to support

actual discharge—the first element of Plaintiff’s Burk claim and Plaintiff has failed to present

specific evidentiary facts sufficient to create a genuine issue of material fact on that element.

Therefore, summary judgment in Defendants’ favor is appropriate. See Celotex, 477 U.S. at 322-

23 (recognizing that summary judgment is appropriate where the movant establishes the absence

of evidence to support an essential element of the nonmoving party’s case). Because there is no

genuine issue of material fact as to whether Plaintiff was discharged, the Court need not address

whether any genuine issue of material fact exist as to whether Plaintiff was discharged in violation

of Oklahoma public policy. See id (holding that a failure of proof “concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.”).

B. Defendants’ Motion to Strike and for Sanctions

Although the Court did not address Defendants’ argument that the alleged conduct in this

case does not implicate a clear mandate of Oklahoma public policy in the context of summary

5 Plaintiff also asserts that a RCSO employee came to his home on August 4, 2017, to inform him

that if he agreed to sign a document stating that he had resigned, RSCO would not dispute a claim

for unemployment benefits but if he refused, RSCO would claim that Plaintiff abandoned his

position. Dkt. No. 59 at 19-20; Dkt. No. 59-11 at 6. This assertion is insufficient to create a

material issue of fact regarding whether or not Plaintiff was actually discharged on August 2, 2017.

judgment, it will discuss the argument briefly as it pertains to Defendants’ motion to strike and for

sanctions.

As previously discussed, to succeed on a Burk claim, Plaintiff would have to show that he

was an at-will employee of RCSO, who was discharged “for refusing to act in violation of an

established and well-defined public policy or for performing an act consistent with a clear and

compelling public policy.” Burk, 770 P.2d at 29. In bringing this suit, Plaintiff claimed that he

was discharged for raising concerns about an incident involving inmate D.R., an incident involving

inmate D.K., and an incident involving inmate J.S., which he believed should have been reported

to the Oklahoma Department of Health, as required by Okla. Stat. tit. 74, § 192 and Okla. Admin.

Code 310:670-5-2. Dkt. 22 at 2-5.

In pertinent part, Okla. Admin. Code 310:670-5-2 requires that the Oklahoma Department

of Health be notified regarding serious suicide attempts and incidents involving serious injury to

staff or inmates. See Okla. Admin. Code 310:670-5-2(27). Serious suicide attempts and serious

injuries are defined as those that are life threatening or require transfer to an outside medical

facility. Id.

In seeking summary judgment, Defendants argued that Oklahoma public policy was not

implicated by the Jail’s failure to report the incidents involving inmates D.R., D.K., and J.S.

because none of the incidents were life threatening or required transfer to an outside medical

facility. Dkt. No. 53 at 15-19. In response, Plaintiff submitted his affidavit, which referenced five

additional incidents involving inmate J.S., one of which required J.S. to be transferred to an outside

medical facility. Dkt. No. 59-11 at 4-5.

Defendants now move to strike the affidavit claiming that in his filings and sworn

statements up to this point Plaintiff only claimed to have reported to Walton one incident involving

inmate J.S. Defendants assert that Plaintiff learned of the additional incidents—including the

incident for which J.S. was transferred to an outside medical facility—in discovery, and that

Plaintiff is now claiming to have reported the additional claims involving J.S. to create a sham

issue of fact. Dkt. No. 69 at 2-5.

“There is authority for the proposition that in determining whether a material issue of fact

exists, an affidavit may not be disregarded because it conflicts with the affiant’s prior sworn

statements.” Burns v. Bd. of Cty. Comm’rs of Jackson Cty., 330 F.3d 1275, 1281 (10th Cir. 2003)

(internal quotation marks and citation omitted); see also Miller v. A.H. Robins Co., 766 F.2d 1102,

1104 (7th Cir.1985) (holding that “[a]n inconsistent affidavit may preclude summary judgment . .

. if the affiant was confused at the deposition and the affidavit explains those aspects of the

deposition testimony”); 10B Charles Alan Wright et al., Federal Practice & Procedure § 2738, at

334 (“[A] witness’ affidavit will not be automatically excluded because it conflicts with the

witness’ earlier or later deposition.”). A court may, however, disregard a contrary affidavit when

it “constitutes an attempt to create a sham fact issue.” Burns, 330 F.3d at 1282 (internal quotation

marks and citation omitted).

Here, the challenged portion of Plaintiff’s affidavit goes to whether Defendants’ alleged

conduct violated a clear mandate of Oklahoma public policy. It is not relevant to the issue of actual

discharge, on which the Court has determined summary judgment appropriate. Because the Court

did not consider the challenged portion of Plaintiff’s affidavit in deciding whether to grant

summary judgment, the Court concludes that Defendants’ motion to strike Plaintiff’s affidavit is

moot.

Defendants also seek sanctions under Rule 56(h), arguing that Plaintiff’s affidavit was

submitted in bad faith. Dkt. No. 69 at 6-7. Where an affidavit is submitted under Rule 56 in bad

faith or solely for delay, the Court may award reasonable expenses, including attorney’s fees, hold

an offending party or attorney in contempt, or impose other appropriate sanctions. Fed. R. P.

56(h); see Masterson v. Killen, No.1:11-cv-01179-DAD-SAB (PC), 2017 WL 892761, at *2 (E.D.

Cal. Mar. 7, 2017) (“Bad faith in the context of Rule 56(h) requires a deliberate or knowing act for

an improper purpose.”); DeLorme v. Markwitz, No. 14-CV-6104-FPG, 2017 WL 512617, at *3

(W.D.N.Y. Feb. 8, 2017) (for purposes of Rule 56(h), “bad faith’ is only found . . . when the

attorney’s conduct is egregious, such as where affidavits contain perjurious or blatantly false

allegations or omitted facts concerning issues central to the resolution of the case.”). Imposing

sanctions under Rule 56(h) is discretionary, not mandatory, “reflecting the experience that courts

seldom involve the independent Rule 56 authority to impose sanctions.” Profita v. Puckett, No.

15-CV-01237-DME-CBS, 2017 WL 1491003, at *28 (D. Colo. Apr. 25, 2017); see Nationwide

Mut. Fire Ins. Co. v. D.R. Horton, Inc., No. 15-351-CG-N, 2016 WL 6828206, at *4 (S.D. Ala.

Nov. 18, 2016) (recognizing that in the context of sanctions under Rule 56(h), the Court “has wide

discretion in deciding what constitutes bad faith.”).

Here Plaintiff’s affidavit reads in pertinent part, “In reviewing [J.S.’] jail records, he is

reported to have been placed in the WRAP [restraint device] on at least nine occasions. From

those records, I have determined that a number of those would have been recorded by video

surveillance, based upon where they occurred at the jail.” Dkt. No. 59-11 at 4. Plaintiff goes on

to describe five such incidents. Id. at 4-5. Plaintiff does not assert that he was aware of these

incidents or that he reported them to Walton prior to the termination of his employment with

RCSO. Id. Accordingly, the Court cannot conclude that Plaintiff’s affidavit includes statements

that conflict with his prior filings and sworn statement, or that the affidavit was submitted in bad

faith or solely for delay.6

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment [Dkt.

No. 53] is GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion to Strike Sham Affidavit of

Nathan Sappington and to Impose Rule 56(h) Sanctions, filed by Defendants Rogers County Board

of County Commissioners and Scott Walton [Dkt. No. 69], is DENIED.

Dated this 18th day of November 2020.

_______________________________

JOHN F. HEIL, III

UNITED STATES DISTRICT JUDGE

6 The Court does have concern about how Plaintiff’s affidavit and the references to the additional

incidents involving inmate J.S. are used in Plaintiff’s responses to Defendants’ motion for

summary judgment and motion to strike. In his response to Defendants’ motion for summary

judgment, Plaintiff made a number of new allegations regarding incidents involving inmate J.S.

and the WRAP restraint device. Dkt. No. 59 at 13-16. For the first time, Plaintiff claimed to have

complained about the use of force and the use of the WRAP restraint on J.S. on a number of

occasions, including one incident that resulted in J.S. being transported for outside medical

attention. Id. at 15, 22. In his response to Defendants’ motion to strike, Plaintiff claims that his

“knowledge of [J.S.]’s medical history coupled with the repeated use of force through the WRAP

were part of and informed Plaintiff’s report on [J.S.] to Defendants.” Dkt. No. 78 at 4. These new

assertions reflect a shift in Plaintiff’s theory of the case and are inconsistent with Plaintiff’s prior

assertions regarding the one incident involving J.S. reported up Plaintiff’s chain of command and

with the record evidence in this case. Dkt. No. 22 at 2-3; Dkt. No. 53 at 11; Dkt. No. 59 at 15-16,

39-54; Dkt. No. 59-2 at 16-17; Dkt. No. 59-15 at 11, 25, 28, 35. Had these assertions been made

expressly in Plaintiff’s affidavit, the relief requested by Defendants might be appropriate.

However, because Plaintiff does not expressly claim to have reported the additional incidents

involving J.S. in his affidavit, the Court cannot conclude that the affidavit was submitted in bad

faith. Dkt. 59 at 15; Dkt. No. 59-15 at 39-54. That being said, counsel is advised to be careful in

making statements to the Court in their briefing which are not supported by the evidentiary material

to which they cite.