BELTON v. FIELDS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DARREN S. BELTON, )

)

Plaintiff, )

)

v. ) 1:23CV169

)

RONNIE FIELDS, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on Plaintiff’s Motion for

Leave to File Document (Docket Entry 56 (“Motion for Leave”)) and

the Motion of Defendants Mr. Danley, Ms. Workman, and Ms. Hoover

for an Extension of Time (Docket Entry 58 (“Extension Motion”)).

For the reasons that follow, the Court will grant these Motions.

INTRODUCTION

Plaintiff commenced this case by filing a pro se Complaint

against various local government officials alleging that they

violated his federal constitutional rights during his time in their

custody as a pretrial detainee. (See Docket Entries 1, 3; see also

Docket Entry 2 (Declaration and Request to Proceed In Forma

Pauperis).)1 Upon initial screening, the Court (per Chief United

States District Judge Catherine C. Eagles) ruled “that [

1 The Clerk’s Office separately docketed the standard form

pages of the Complaint (Docket Entry 3) and its additional pages

containing information that would not fit on the form pages (Docket

Entry 1). Pin cites to both portions of the Complaint will refer

to the page numbers that appear in the footers appended to those

materials upon their docketing in the CM/ECF system.

P]laintiff’s claims against [ D]efendants Danley, Workman and

Hoover based on allegations of excessive force, cruel and unusual

punishment, and violations of his right to privacy may proceed but

all other claims [we]re dismissed.” (Docket Entry 7 at 1 (all-caps

and bold font omitted).) Defendants Danley, Workman, and Hoover

(hereinafter, collectively, “Defendants”) answered (see Docket

Entries 19, 21) and the case advanced to discovery (see Text Order

dated Sept. 6, 2023), following which Defendants filed their Motion

for Summary Judgment (Docket Entry 37).

After obtaining an extension of time (see Text Order dated May

21, 2024), Plaintiff responded in opposition to the Motion for

Summary Judgment (see Docket Entry 46 (“Pro Se Response”)).2 The

Pro Se Response states, inter alia, that “Plaintiff [wa]s currently

in segregation [with] some [of his] legal documents in storage”

(id. at 5),3 leaving him “[u]nable to file his interrogatories and

admissions” (id.). In addition, before Plaintiff filed the Pro Se

Response, he moved for an order from this Court requiring North

Carolina’s “Department of Adult Corrections to allow [him] to make

copies of various documents.” (Docket Entry 44 at 1; see also id.

(adverting to “difficulty in litigating from a prison cell”).)

2 Pin cites to the Pro Se Response will refer to the page

numbers that appear in the footer appended to the Pro Se Response

upon its docketing in the CM/ECF system.

3 Quotations from Plaintiff’s handwritten materials employ

standard capitalization conventions.

2

The Court (per the undersigned Magistrate Judge) granted that

motion in part by ordering “the Clerk [to] attempt to locate

counsel willing to represent Plaintiff pursuant to the Court’s Pro

Bono Representation Program, for the purpose of filing a

supplemental response to [the] Motion for Summary Judgment and

representing Plaintiff at trial, if any claim survives summary

judgment.” (Text Order dated July 31, 2024.) The Clerk struggled

to find counsel willing to represent Plaintiff (see Docket Notice

dated Oct. 23, 2024 (“The Clerk’s Office has contacted 11 attorneys

on its pro bono representation list, and[,] to date, no attorney

has accepted representation. Efforts to secure pro bono counsel

are ongoing.”)), but – on December 20, 2024 – William Trivette

“enter[ed an] appearance on behalf of [] Plaintiff” (Docket Entry

52 at 1). The Court (per the undersigned Magistrate Judge)

thereafter “direct[ed ] Plaintiff (through newly appearing counsel)

to file any supplemental response . . . to [the] Motion for Summary

Judgment by 01/28/2025 . . . .” (Text Order dated Jan. 7, 2025;

see also id. (authorizing Defendants to file supplemental reply ten

days after supplemental response deadline).)

On January 23, 2025, Mr. Trivette “move[d the Court] to extend

for 45 days the time in which to file a [supplemental] response to

the [ M]otion for [S]ummary [J]udgment . . . .” (Docket Entry 53

at 1.) According to that motion, after entering his appearance,

Mr. Trivette “immediately sent a letter to Plaintiff at Scotland

3

Correctional [Institution (“SCI”)] to notify Plaintiff of the

representation. [Mr. Trivette] mailed a second letter to Plaintiff

on January 16, 2025, asking Plaintiff to respond. As of [that

motion’s filing, Mr. Trivette] ha[d] not received a reply from

Plaintiff.” (Id. at 3.) Said motion adds that “Plaintiff [wa]s

incarcerated in Close Custody” (id.) and that “[i]t [wa]s possible

that he ha[d] not received [Mr. Trivette’s] letters or [] ha[d]

difficulty responding” (id.). Finally, Mr. Trivette emphasized his

desire to “obtain an affidavit from [] Plaintiff.” (Id. at 4.)

The Court (per the undersigned Magistrate Judge) granted that

motion and “extend[ed] the deadline for Plaintiff (through newly

appearing pro bono counsel) to file a supplemental response to

[the] Motion for Summary Judgment to 03/14/2025 . . . .” (Text

Order dated Jan. 27, 2025.) On March 13, 2025, Mr. Trivette

“move[d] for a second extension of 14 days (until March 28, 2025)

in which to file a [supplemental] response to the [ M]otion for

[S]ummary [J]udgment.” (Docket Entry 54 at 1.) In that motion,

Mr. Trivette explained that, “[d]espite [his] diligent efforts,

[he] ha[d] not yet received Plaintiff’s affidavit, which [Mr.

Trivette] deem[ed] important to support a [supplemental] response

to [the M]otion for [S]ummary [J]udgment.” (Id.) Mr. Trivette

further described these events that transpired since the Court

extended the deadline for Plaintiff’s supplemental response:

[I] mailed . . . a third letter [to Plaintiff] on January

23, notifying [him] of [my] representation and asking him

4

to respond. Plaintiff did respond by letter postmarked

January 30, 2025, in which he gladly accepted [my]

representation. [I] made legal calls to Plaintiff on

February 5, 14 and 26. In the second and third calls[,

I] urged Plaintiff to mail [me] his affidavit which would

be attached to [the supplemental] response in opposition

to summary judgment. [I] ha[ve] not received Plaintiff’s

affidavit as of the filing of this motion and ha[ve]

arranged to call Plaintiff tomorrow (March 14) to inquire

about the affidavit.

(Id. at 3; see also id. (“Plaintiff is incarcerated in close

custody in [SCI]. It is possible that he is in a lock-down or

otherwise cannot respond. [SCI] is 123 miles one-way from [Mr.

Trivette’s] office. Due to the pressures of other professional and

personal commitments, [Mr. Trivette] is unable to travel to [SCI]

to meet with [] Plaintiff at this time.”).)

Again, the Court (per the undersigned Magistrate Judge)

granted that motion and “extend[ed] the deadline for Plaintiff

(through pro bono counsel) to file a supplemental response to [the]

Motion for Summary Judgment to 03/28/2025 . . . .” (Text Order

dated Mar. 20, 2025.) That Text Order cautions that “Plaintiff

should not anticipate receiving any further extensions of the[]

now-twice-extended deadline[ for his supplemental response] based

simply on any unexplained failure of pro bono counsel to have

received documents from Plaintiff.” (Id.) On March 28, 2025, Mr.

Trivette filed Plaintiff’s Supplemental Response, stating therein

that, “[a]s of [its] filing . . ., [Mr. Trivette] ha[d] not

received [the] requested affidavit from Plaintiff.” (Docket Entry

55 at 2; see also id. (“As late as March 14, 2025, counsel called

5

Plaintiff at [SCI]. Plaintiff said that his affidavit would be

mailed immediately, but it has not arrived.”).)

The Supplemental Response adds that Mr. Trivette “will submit

any affidavit subsequently received from Plaintiff” (id.) and

“requests that this Court accept [the C]omplaint . . . as the

functional equivalent of a sworn affidavit” (id.). Two business

days later (on April 1, 2025), Mr. Trivette filed the instant

Motion for Leave on Plaintiff’s behalf, requesting entry of “an

order allowing [Mr. Trivette] to file Plaintiff’s attached

affidavit late.” (Docket Entry 56 at 1 (referring to Docket Entry

56-1 (“Plaintiff’s Affidavit”)).)4 The Motion for Leave relates as

follows: “Yesterday (March 31, 2025), Plaintiff’s [A]ffidavit

arrived. Plaintiff signed [Plaintiff’s A]ffidavit on March 26 and

the envelope in which he mailed [Plaintiff’s A]ffidavit shows that

prison officials mailed it that same day.” (Id. (referring to

Docket Entry 56-1 at 7 and Docket Entry 56-2 at 2, respectively).)

As an explanation for the tardiness of Plaintiff’s Affidavit, the

cover letter therein includes this statement:

Sorry for the wait. But I had to start over because the

same day you called I went back to my block [and] I got

tased and true me I didn’t like it at all and it was for

nothing and they through [sic] all my legal papers away.

But think [sic] god I’m okay and I’m in the hole and

4 Pin cites to Plaintiff’s Affidavit will refer to the page

numbers that appear in the footer appended to Plaintiff’s Affidavit

upon its docketing in the CM/ECF system. Plaintiff’s Affidavit

consists of a single-page, cover letter (see Docket Entry 56-1 at

1), followed by six pages of averments (see id. at 2-7).

6

looking forward to your call soons [sic] you get this

letter.

(Docket Entry 56-1 at 1 (stray apostrophe omitted).)

Defendants have opposed the instant Motion for Leave (see

Docket Entry 57 (“Opposition”)) and have filed the instant

Extension Motion, requesting “an extension of time in the amount of

seven (7) days, after the Court enters a ruling as to the . . .

Motion [for] Leave . . ., [for Defendants] to file a [s]upplemental

[r]eply in support of their Motion for Summary Judgment” (Docket

Entry 58 at 1 (italics and internal citation omitted)).

DISCUSSION

The Complaint first alleges that, on September 2, 2022,

Defendant Workman – without adequate justification and after

directing racially-based comments towards Plaintiff –

(A) discharged (and/or attempted to discharge) a pepper-ball gun at

Plaintiff while he showered, (B) then forced Plaintiff to come out

of the shower in the nude in front of her, and (C) thereafter

pepper-sprayed Plaintiff with a different device and (along with

Defendant Danley) made Plaintiff return to his cell without

allowing him to wash off the pepper spray. (See Docket Entry 1 at

4-6.) Next, the Complaint alleges that, on December 10, 2022,

Defendants subjected him to the following:

1) Defendants Workman and Hoover came to Plaintiff’s cell with

“two write ups” (id. at 7), Defendant Hoover ordered him to “turn

around and cuff up, so [they] c[ould] come in [his] cell and take

7

[his] towel, soap and deodorant and books and paper” (id.), and

“[Defendant] Hoover open[ed his cell-door] trap and said hurry up

before [she] sprayled him]” (id.);

2) “scared of being sprayed, [Plaintiff] . . . grabbed [his]

mat and covered [his cell-door] trap so [Defendant Hoover] couldn’t

spray [him] for nothing” (id.);

3) Defendant Danley subsequently arrived “holding a big can of

pepper spray” (id. at 8), declined Plaintiff’s request to talk (see

id.), and instead immediately began “spray[ing] the fallger [sic]

pepper spray through [his] door crack on the side” (id.);

4) when Defendant Hoover relayed to Defendant Danley that

Plaintiff said he would “cuff up after [Defendant Danley] sprayed

that pepper spray in [Plaintiff’s] room” (id.) and he “cant [sic]

breath [sic]” (id.), “[Defendant] Danley replied back, [‘]Let him

stay in there, [h]is black ass should’ve been cuffed up[’]” (id.);

5) “[Defendant] Hoover asked [Defendant] Danley[ if] he wanted

them to stay there with [Plaintiff], since [he] couldn’t breath

[sic] and [Defendant] Danley was like [*]no yall can come on[’]”

(id.), whereupon “[Defendants] Hoover and [] Workman walked away”

(id.; see also id. (alleging that, when Defendants Workman and

Hoover returned “15 minutes to 20 minutes later,” pepper-spray fog

remained so strong that Defendants Workman and Hoover wore “gas

masks” (stray apostrophes omitted)));

6) following another stand-off, Defendant Danley threatened

“to spray the pepper spray in [Plaintiff’s] room again” (id. at 9)

and he submitted to full restraints (see id.);

7) while “walking to the door to leave the block[, Defendant]

Hoover ram[med Plaintiff’s] chest into the wall which made [his]

face hit the wall hard” (id.);

8) Defendant Danley then “hit [Plaintiff] in the right side of

[his] ribs and got in [his] ear and said [*]you must don’t [sic]

know who you [sic] playing with Nigger[’]” (id.);

9) Defendants Danley and Hoover thereafter placed Plaintiff in

a “restraint chair” (id.) and, after he “threaten[ed] to spit in

[their] face[s] for doing [him] like they did” (id.), “they got a

spit mask too [sic] put over [his] head” (id.);

10) Defendants Danley, Workman, and Hoover left Plaintiff in

the freezing, cool-down room for two hours in just a t-shirt and

boxers (see id. at 10);

11) Defendants Workman and Hoover thereafter took Plaintiff

back to his cell block “in full restraints, cuffed behind [his]

back, [with the] spit mask on [his] whole head” (id.) and, after

Plaintiff made vulgar comments about Defendant Hoover to other

inmates while en route and complained to her that his “cuffs [were]

cutting [his] ankles” (id. (stray apostrophe omitted)), “she put

her right leg in front of [his] left leg and slammed [him to the

floor] so hard [he] blacked out for a few seconds” (id.; see also

id. (“I went down head first and hit my temple so hard on the

floor[ that] I blacked out.”));

12) at Defendant Hoover’s direction, Plaintiff then was

returned to the restraint chair in the cool-down room for two more

hours (see id. at 11), after which Defendants Danley and Hoover

“took [him] to booking and put [him] on suicide watch[, despite the

fact that he] never said [he] was gonna kill [him]self” (id.); and

13) upon placing Plaintiff in a suicide room, Defendant Hoover

told him “to lay on [his] stomach” (id.), after which she “cut

[his] boxers off [and] then cut [his] t-shirt off” (id. (stray

apostrophe omitted)), over his protest that, as a female, she was

“not supposed to be cutting [his] clothes off” (id.; see also id.

(“I asked [Defendant] Danley why is a female officer cutting off a

male[’s] clothes, . . . [with] three male officer[s] right [t]here,

[but] he didn’t respon[d]” (stray comma and apostrophe omitted))).

The Motion for Summary Judgment contends that the Court should

enter summary judgment for Defendants on “Plaintiff’s claims

asserted against them in this matter on the grounds that there is

no genuine issue as to any material fact and that they are each

entitled to judgment as a matter of law.” (Docket Entry 37 at 1.)

“More specifically, [the Motion for Summary Judgment maintains

that] Plaintiff was not subjected to any excessive or unlawful

force, nor any other violation of his constitutional rights, such

that [ D]efendants are each entitled to qualified immunity and []

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Plaintiff’s claims otherwise fail as a matter of law.” (Id.) “The

[ M]otion for [S]ummary [J]udgment is supported by the [a]ffidavits

of [Defendants] Danley[ and] Workman, [as well as four other

individuals], and [a d]eclaration of [Defendant] Hoover . . . .”

(Id. (referring to Docket Entries 38-1 - 38-7).)

To bolster Defendants’ request for summary judgment in their

favor on Plaintiff’s claims from the incident on September 2, 2022,

their Memorandum in Support points to evidence that “[D]efendant

Workman informed Plaintiff that his allotted shower time was

finished and ordered [him] to get dressed, come out from behind the

shower curtain, and to ‘cuff up’ so that he could be . . . escorted

back to his cell.” (Docket Entry 38 at 5 (citing Docket Entry 38-

2, ¶ 9 and Docket Entry 38-4, ¶ 9).) According to the Memorandum

in Support, only after Plaintiff repeatedly refused to comply with

those and similar, lawful commands (see id. at 6 (citing Docket

Entry 38-2, ¶ 10 and Docket Entry 38-4, ¶ 9)), even in the face of

warnings that Defendant Workman “would deploy a pepper ball gun

into his shower cell/stall in an effort to obtain his compliance”

(id. (citing Docket Entry 38-2, ¶ 11 and Docket Entry 38-4, ¶¶ 9,

10)), did “[Defendant] Workman attempt[] to deploy the pepper ball

gun” (id.), which – due to a malfunction – resulted in “merely [a]

discharge[ of] empty air” (id. (citing Docket Entry 38-2, ¶ 11)).

The Memorandum in Support concludes (as to that incident) by

detailing that, after Defendant Danley arrived and “correct[ed] the

11

malfunction with the pepper ball gun” (id. (citing Docket Entry 38-

1, ¶ 3, Docket Entry 38-2, ¶ 13, and Docket Entry 38-4, ¶ 12)),

“Plaintiff finally complied with . . . lawful orders” (id.),

culminating in his return “to his cell without further incident”

(id. at 7 (citing Docket Entry 38-1, ¶¶ 3-5, Docket Entry 38-2,

¶ 14, and Docket Entry 38-4, ¶ 13)), all with – contrary to the

allegations in the Complaint (see Docket Entry 1 at 5-6) – “[n]o

force [] utilized against [him], to include any deployment of

oleoresin capsicum (whether from a pepper ball gun or a can of OC

spray)” (Docket Entry 38 at 7 (citing Docket Entry 38-1, ¶¶ 6, 7,

and Exh. 1, Docket Entry 38-2, ¶¶ 14-18 and Exh. 2, and Docket

Entry 38-4, ¶¶ 13-15 and Exh. 1)).

As to the incident on December 10, 2022, the Memorandum in

Support similarly relies on record evidence to defeat Plaintiff’s

claims. (See generally id. at 7-13 (citing principally Docket

Entries 38-1, 38-3, and 38-4).) For example, in contrast to the

Complaint’s allegation that Defendant Danley refused Plaintiff’s

entreaty to talk and instead immediately deployed the pepper-spray

fogger (see Docket Entry 1 at 8), the Memorandum in Support cites

evidence that Defendant Danley first made multiple, verbal attempts

to gain compliance, to which Plaintiff responded with open

defiance, including by challenging Defendant Danley to “‘spray, do

what you do’” (Docket Entry 38 at 8 (citing and/or quoting, inter

alia, Docket Entry 38-1, ¶ 10, Docket Entry 38-3, ¶ 5, and Docket

12

Entry 38-4, ¶ 18)). Likewise, in contradiction of the Complaint’s

allegations that (with Plaintiff fully restrained) Defendant Hoover

slammed him into a wall (see Docket Entry 1 at 9), Defendant Danley

punched him in the ribs (see id.), and Defendant Hoover kicked his

legs out from under him with such force that his head smashed into

the floor knocking him unconscious (see id. at 10), Defendants’

Memorandum in Support directs the Court to evidence that “Plaintiff

was not hit, struck, or kicked in any manner by anyone” (Docket

Entry 38 at 12 (citing Docket Entry 38-1, ¶ 24, Docket Entry 38-3,

¶ 23, Docket Entry 38-5, ¶ 10, and Docket Entry 38-6, ¶ 9)).

In compliance with the Federal Rules of Civil Procedure,

Defendants thus have “assert[ed] that [specific] fact[s] cannot be

. . . disputed [and have] support[ed] th[at] assertion by . . .

citing to particular parts of materials in the record, including

. . . affidavits or declarations . . . .” Fed. R. Civ. P.

56(c)(1). To counter Defendants’ showing on that front, i.e., to

“assert[] that [those] fact[s are] . . . genuinely disputed,” id.,

Plaintiff “must support [his] assertion[s] by: (A) citing to

particular parts of materials in the record . . .; or (B) showing

that the materials cited [by Defendants] do not establish the

absence . . . of a genuine dispute, or that [Defendants] cannot

produce admissible evidence to support the[ir account of the]

fact[s],” id. In other words, under these circumstances, “non-

moving parties who would bear the burden of proof on an issue at

13

trial (like [Plaintiff]) may not simply rest on assertions in their

complaint but must produce evidence that could - if believed -

permit a reasonable factfinder to rule in their favor.” Alexander

v. Connor, 105 F.4th 174, 178 (4th Cir. 2024) (emphasis added)

“[TA] verified complaint is the equivalent of an opposing

affidavit for summary judgment purposes, when the allegations

contained therein are based on personal knowledge.” Williams v.

Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (emphasis omitted). But

Plaintiff did not verify the Complaint. (See Docket Entry 1 at 1-

11 (containing no signature, let alone any verification under oath

or penalty of perjury); Docket Entry 3 at 11 (bearing Plaintiff’s

signature without verification under oath or penalty of perjury) □□□□

5 Consistent with that view, this Court’s Local Rules directed

Plaintiff to include “[i]n a responsive brief . . . the specific,

authenticated facts existing in the record or set forth in

accompanying affidavits that would be sufficient to support a jury

finding of the existence of the disputed elements [of his claims].”

M.D.N.C. LR 56.1(e) (emphasis added); see also M.D.N.C. LR 7.2 □□□

(identifying “statement of the facts” with “[e]lach statement of

fact . . . supported by reference to a part of the official record”

as item “[r]lesponse briefs . . . shall contain”); M.D.N.C. LR

7.3(£) (“If supporting documents are not then available, the

respondent may move for an extension of time ... .”).

6 Plaintiff did incorporate into his Pro Se Response a single-

page document labeled “Affidavit.” (Docket Entry 46 at 9 (all-caps

font omitted).) However, although that document recites that

Plaintiff had “bel[en] duly sworn” (id.), the section for

administration of the oath lacks any notarization (see id.; see

also id. at 8 (“Certificate of Acknowledgement [sic]” confirming

via notary Plaintiff’s identity as person who signed Pro Se

Response, but offering no representation about oath administration

(bold font omitted))). In any event, that document contains no

factual matter; rather, it merely makes a bald assertion that

(continued...)

14

Cognizant of that fact (and as detailed in the Introduction),

Mr. Trivette (A) diligently attempted to secure an affidavit from

Plaintiff to oppose the Motion for Summary Judgment (see Docket

Entry 54 at 3; Docket Entry 55 at 2), and (B) obtained extensions

of time to include such an affidavit with the supplemental response

authorized by the Court (see Text Order dated Jan. 27, 2025; Text

Order dated Mar. 20, 2025). Yet, when the twice-extended deadline

for the filing of that supplemental response arrived, Mr. Trivette

“ha[d] not received [the] requested affidavit from Plaintiff.”

(Docket Entry 55 at 2.) Accordingly (and in light of the Court’s

admonition in granting the second extension of time that “Plaintiff

should not anticipate receiving any further extensions . . . based

simply on any unexplained failure of [Mr. Trivette] to have

received documents from Plaintiff” (Text Order dated Mar. 20,

2025)), Mr. Trivette filed the Supplemental Response with only a

promise to “submit any affidavit subsequently received from

Plaintiff.” (Docket Entry 55 at 2; see also id. (“request[ing]

that this Court accept Plaintiff’s pro se [C]omplaint . . . as the

functional equivalent of a sworn affidavit”).)

6(...continued)

“[t]here is a material disagreement . . . as to the versions of

events of excessive force . . . in the Moore County Jail.” (Id. at

9.) The preceding pages of the Pro Se Response also contain only

conclusory comments of that sort. (See, e.g., id. at 2 (alleging

without any context that “Plaintiff was beaten”), 3 (referring

generically to “incident of excessive force”), 4 (adverting in

undeveloped fashion to “brutal[,] willful[,] malicious[,]

sadistic[,] unjustified[, and] excessive force that occurred”).)

15

As concerns any such belated submission, Mr. Trivette argued

that, “pursuant to Fed. R. Civ. P. 56(d)(2)[,] the Court could

allow additional time so that [an] affidavit could be obtained.”

(Id. at 12 (spaces added).) That rule provision, however, requires

“a nonmovant [to] show[] by affidavit or declaration that, for

specified reasons, [the nonmovant] cannot present facts essential

to justify its opposition,” Fed. R. Civ. P. 56(d) (emphasis added).

The Supplemental Response did not show by affidavit or declaration

(i.e., under oath or subject to perjury penalties) the specified

reason(s) for Plaintiff’s inability to provide an affidavit to Mr.

Trivette; to the contrary, in the Supplemental Response, Mr.

Trivette just proffered speculative theories for why, despite

Plaintiff’s statement to Mr. Trivette, during a telephone

conference on March 14, 2025, “that [the] affidavit would be mailed

immediately, [] it ha[d] not arrived” (Docket Entry 55 at 2). (See

id. at 10 (“Frequently prison inmates are in a lock-down situation

or are otherwise unable to utilize the mail system. In addition,

at times mail simply is not delivered by the Postal Service.”).)

Based on those considerations, it appears that, at the time of

the Supplemental Response’s filing (which should have concluded

Plaintiff’s submissions opposing the Motion for Summary Judgment),

Plaintiff had “fail[ed] to properly support [his] assertion[s] of

fact [substantiating his claims and had] fail[ed] to properly

address [Defendants’] assertion[s] of fact [contradicting his

16

claims] as required by [Federal] Rule [of Civil Procedure] 56(c),”

Fed. R. Civ. P. 56(e). Those twin failures by Plaintiff leave the

Court these options under Federal Rule of Civil Procedure 56(e):

(1) give [Plaintiff] an opportunity to properly support

or address the fact[s];

(2) consider the fact[s] undisputed for purposes of the

[M]otion [for Summary Judgment];

(3) grant summary judgment if the [M]otion [for Summary

Judgment] and supporting materials – including the facts

considered undisputed – show that [Defendants are]

entitled to it; or

(4) issue any other appropriate order.

Id.

The instant Motion for Leave effectively asks the Court to

choose the first option by “allow[ing Plaintiff’s A]ffidavit to be

filed late.” (Docket Entry 56 at 2.)7 Conversely, in opposing the

7 The Motion for Leave does not cite any authority for its

requested relief. (See Docket Entry 56 at 1-2.) However,

Plaintiff’s Affidavit does appear to “to properly support or

address the fact[s at issue],” Fed. R. Civ. P. 56(e)(1), in that it

sets out, “under penalty [of] perjury” (Docket Entry 56-1 at 7),

Plaintiff’s account of matters about which he would have possessed

“personal knowledge,” Fed. R. Civ. P. 56(c)(4), concerning “facts

that would be admissible in evidence,” id., and while otherwise

“show[ing] that [he] is competent to testify on th[ose] matters,”

id. (See, e.g., Docket Entry 56-1 at 2-3 (averring, consistently

with the Complaint, that (on September 2, 2022) Defendant Workman

“pepper spray[ed Plaintiff] just for singing,” forced him to get

out of the shower naked in front of her, and then again “sprayed

[him] for nothing at all,” after which she and Defendant Danley

prevented him from decontaminating), 4 (averring, consistently with

the Complaint, that (on December 10, 2022) Defendant Danley

deployed a pepper spray fogger in Plaintiff’s cell without

warning), 5 (averring, consistently with the Complaint, that (on

December 10, 2022) Defendant Hoover “ram[med Plaintiff in]to the

(continued...)

17

Motion for Leave, Defendants would have the Court “decline to

accept or otherwise consider Plaintiff’s [Affidavit]” (Docket Entry

57 at 7), which, by logical extension, (A) would amount to adoption

of Federal Rule of Civil Procedure 56(e)’s second option, i.e.,

“consider[ing] the fact[s asserted in the affidavits submitted by

Defendants] undisputed for purposes of the [M]otion [for Summary

Judgment],” Fed. R. Civ. P. 56(e)(2), and (B) likely would lead (as

to some, if not all, of Plaintiff’s claims) to the result denoted

as the third option under Federal Rule of Civil Procedure 56(e),

i.e., the “grant[ing of] summary judgment [for Defendants because]

the [M]otion [for Summary Judgment] and supporting materials –

including the facts considered undisputed – [would] show that [they

are] entitled to it,” Fed. R. Civ. P. 56(e)(3).

The Motion for Leave rests its plea for the Court to excuse

the tardiness of Plaintiff’s Affidavit on the statements in its

“cover letter” (Docket Entry 56 at 1 (referring to Docket Entry 56-

1 at 1)), which indicate that, immediately after Plaintiff’s

7(...continued)

wall [while hand-cuffed and shackled, causing him to] hit [his]

head and [the] right side [of his] face,” after which Defendant

Danley “hit [Plaintiff] in the ribs” while making a racist

comment), 6-7 (averring, consistently with the Complaint, that (on

December 10, 2022) Defendant Hoover, while leading Plaintiff back

to his cell wearing “leg restraints, [with his] hands cuffed to

[his] back, [and with a] spit mask on,” put her leg in front of

[his] left leg and used force [to] slam [him to the floor] on [his]

head/temple so hard [he] went to sleep,” and thereafter forced him

to “lay on his stomach” in a suicide room while she “cut[ his]

clothes off[, before she] help[ed him] stand up[, ] made [him] back

up naked . . . and took [his hand] cuff[s] off”).)

18

telephone call with Mr. Trivette on March 14, 2025, during which

(per the Supplemental Response) “Plaintiff said that his affidavit

would be mailed immediately” (Docket Entry 55 at 2), Plaintiff “got

tased . . . for nothing and they [presumably, correctional

officers] through [sic] all [his] legal papers away” (Docket Entry

56-1 at 1 (stray apostrophe omitted)), such that Plaintiff “had to

start over” (id.). As Defendants’ Opposition intimates, even if

accepted at face value, that account does not explain Plaintiff’s

failure to provide an affidavit to Mr. Trivette within the weeks

that followed their “calls . . . on February [] 14 and 26” (Docket

Entry 54 at 3), when Mr. Trivette “urged Plaintiff to mail [Mr.

Trivette an] affidavit” (id.), in time to comply with “the March

14, 2025 filing deadline then in effect” (Docket Entry 57 at 6).

(See id. (“Even assuming arguendo that Plaintiff had[ begun work on

an affidavit before March 14, 2025], it is clear that [Plaintiff]

never exhibited any sense of urgency or intention to assist [Mr.

Trivette] in meeting the March 14, 2025 deadline.”).)8

8 Defendants also have pointed to circumstantial evidence

calling into doubt “whether the purported incident Plaintiff

describe[d] in his cover letter (as being the reason for his late

submission) ever even occurred” (Docket Entry 57 at 6). (See id.

at 6-7 (“According to the North Carolina Department of Adult

Correction [(‘NCDAC’)] Offender Public Information website,

Plaintiff . . . has committed multiple infractions during this, his

most recent, period of incarceration. . . . Plaintiff’s most

recent infractions occurred on February 21, 2025, [and] such

infractions includ[ed] . . . illegal cloth/sheet/linens. There is

no indication whatsoever of any incident or conduct violation

having occurred since February 21, 2025, to include any incident on

(continued...)

19

Nonetheless, the following commentary to Federal Rule of Civil

Procedure 56 strongly suggests that allowing consideration of

Plaintiff’s Affidavit represents the better course:

Subdivision (e) [of Federal Rule of Civil Procedure 56]

addresses questions that arise when a party fails to

support an assertion of fact or fails to properly address

another party’s assertion of fact as required by

[Federal] Rule [of Civil Procedure] 56(c). .. . Before

deciding on other possible action, subdivision (e) (1)

recognizes that the court may afford an opportunity to

properly support or address the fact. In many

circumstances this opportunity will be the court’s

preferred first step. . . . The choice among possible

orders should be designed to encourage proper

presentation of the record.

Fed. R. Civ. P. 56 advisory committee’s notes, 2010 Amendment,

Subdivision (e) (emphasis added)); see also Grimes v. District of

Columbia, 794 F.3d 83, 92 (D.C. Cir. 2015) (identifying above-

quoted commentary and “implicit preference for judgments on the

merits” as guideposts for addressing situation where “[t]he record

does not suggest that [the plaintiff] wishes to abandon her claims,

but [the record] also appears to lack evidence needed to carry them

over the summary judgment threshold”); Sinclair v. Mobile 360,

Inc., 417 F. App’x 235, 241 n.13 (4th Cir. 2011) (describing “2010

version of [Federal] Rule [of Civil Procedure] 56” as “helpful to”

any “party [who] has failed to properly support or address an

8(...continued)

March 14, 2025. One would presume that[,] if the NCDAC documents

infractions of a relatively minor nature such as illegal

cloth/sheet/linens, it would certainly document a conduct violation

sufficiently serious to warrant Plaintiff being tasered as he

claims.” (internal quotation marks omitted)).)

20

assertion of fact,” (A) because subsection (e) “recognizes that the

court may afford the party an opportunity to do so, and . . . that

orders other than an award of summary judgment to the opposing

party may be appropriate,” and (B) because, “[s]ignificantly, the

Advisory Committee recognized that ‘the choice among possible

orders should be designed to encourage proper presentation of the

record’” (emphasis added) (internal brackets, citation, and some

quotation marks omitted)); Anderson v. Bristol, Inc., 936 F. Supp.

2d 1039, 1047 (S.D. Iowa 2013) (“[W]hen determining the proper

course of action following a motion to amend [an insufficiently

supported summary judgment response], the [c]ourt should generally

choose the option that ‘encourages the proper presentation of the

record.’” (internal brackets omitted) (quoting Fed. R. Civ. P. 56

advisory committee’s notes, 2010 Amendments, Subdivision (e))).

Put another way, when a party neglects to properly contest the

opposing party’s statement of facts, “taking [such] facts as

admitted – particularly dispositive facts – is not the ‘preferred

first step.’” Lexington Ins. Co. v. Paddock Swimming Pool Co., 532

F. Supp. 3d 1, 4 n.2 (D.D.C. 2021) (quoting Grimes, 794 F.3d at

92); accord Panarello v. Zinke, 254 F. Supp. 3d 85, 97 (D.D.C.

2017), aff’d sub nom., Panarello v. Bernhardt, 788 F. App’x 18

(D.C. Cir. 2019). And, for understandable reasons, as the

alternative of “giving the party [who initially failed to properly

support its own assertions of fact] an opportunity to support

21

[those assertions of] fact ‘“minimizes the chance of an unjust

result based on an inadequate record.”’” Kam-O’Donoghue v. Tully,

Civ. Action No. 16-11054, 2018 WL 2739930, at *1 (D. Mass. Mar. 16,

2018) (unpublished) (quoting Parks v. Blanchette, No. 3:09CV604,

2015 WL 1970526, at *1 (D. Conn. May 1, 2015) (unpublished), in

turn parenthetically quoting 11 James William Moore et al., Moore’s

Federal Practice § 56.99[2][a] (3d ed. 2015)); see also Huffman v.

Davey Tree Expert Co., No. CV 418-184, 2024 WL 200930, at *3 (S.D.

Ga. Jan. 18, 2024) (unpublished) (pointing to Advisory Committee’s

Note regarding 2010 Amendment to Federal Rule of Civil Procedure

56, “preference for summary judgment determinations based on the

merits rather than technicalities,” and “overriding goal of

securing the just determination of every action and proceeding” in

allowing the plaintiff additional “opportunity to address various

facts presented in the partial summary judgment motions”).

Still, “invoking [Federal] Rule [of Civil Procedure] 56(e)(1)

is a matter of this [C]ourt’s discretion.” Peronis v. United

States, No. 2:16CV1389, 2018 WL 4740170, at *7 (W.D. Pa. Oct. 2,

2018) (unpublished). In deciding whether to exercise that

discretion to invoke subdivision (e)(1) of Federal Rule of Civil

Procedure 56 (and thus to allow Plaintiff’s Affidavit to support

the factual assertions in the Supplemental Response to the Motion

for Summary Judgment), the Court observes that “other courts have

declined to afford th[e] opportunity [to belatedly support a

22

factual assertion in opposition to a summary judgment motion] in

cases of bad faith or in protracted litigation where [such] further

opportunity to address summary judgment arguments would lead to

even further delay in the litigation process.” Id. (citing cases).

Here, on the issue of further delay (and as previously

documented), Plaintiff filed Plaintiff’s Affidavit (along with the

instant Motion for Leave) only two business days late. The

“fil[ing of the M]otion [for Leave] relatively shortly after [the

filing of the Supplemental R]esponse[ means that, practically

speaking, the] request [for leave to file Plaintiff’s Affidavit]

has not interfered with the [C]ourt’s decisional process regarding

[D]efendants’ [M]otion for [S]ummary [J]udgment,” Wilson v.

Deutsche Bank & Tr. Co. Ams., No. 3:18CV854, 2020 WL 4559822, at *3

(N.D. Tex. Apr. 28, 2020) (unpublished), which weighs in favor of

“the [C]ourt grant[ing the M]otion [for Leave] and includ[ing

Plaintiff’s Affidavit] attached to the[ M]otion [for Leave] as part

of [his Supplemental R]esponse,” id.; see also id. (assuming that

motion to supplement summary judgment response was “procedurally

defective,” but “nevertheless grant[ing that] motion under

[Federal] Rule [of Civil Procedure] 56(e),” and quoting as support

“[Federal] Rule [of Civil Procedure] 56 advisory committee’s note

to 2010 amendment”); Peronis, 2018 WL 4740170, at *9 (citing fact

that court saw “no reason why [untimely] filing would have any

impact on efficiency in th[e] case” in accepting said filing).

23

Regarding bad faith, Plaintiff’s Affidavit “is not a wholesale

change in position. To the contrary, [P]laintiff[] ha[s]

maintained the[ same] overall theory since the initial filing of

the [C]omplaint.” Peronis, 2018 WL 4740170, at *9. “The fact that

[P]laintiff[] . . . [sh]ould have been more [timely] with respect

to [filing Plaintiff’s Affidavit] does not change [his] theory of

the case. Put simply, [Defendants] ha[ve] been on notice of

[Plaintiff’s] claims since the beginning.” Id. Moreover, the

Court’s prior orders (discussed in the Introduction) already

contemplated that Defendants would receive an opportunity “to file

a[ supplemental] reply [which will allow them to] address[] the new

evidence.” Wilson, 2020 WL 4559822, at *3. Given those

circumstances and the absence (at least at this point) of any other

basis to “satisf[y the Court] that [Plaintiff’s A]ffidavit . . .

[wa]s submitted in bad faith or solely for delay,” Fed. R. Civ. P.

56(h), “[t]here is no justification to find bad faith,” Peronis,

2018 WL 4740170, at *9, and therefore no reason to “decline[] to

afford [Plaintiff] this opportunity [to properly support the

factual assertions in the Supplemental Response],” id. at *7.9

In sum, based on the foregoing analysis (and like other courts

confronted with similar scenarios):

9 “If [the Court later becomes] satisfied that [Plaintiff’s

Affidavit] . . . [wa]s submitted in bad faith or solely for delay,”

Fed. R. Civ. P. 56(h), Plaintiff “may [then] be held in contempt or

subjected to other appropriate sanctions,” id.

24

[T]he [C]ourt finds in its discretion that permitting

[consideration of Plaintiff’s Affidavit] is warranted.

oe [T]he purpose of summary judgment is to truly

assess whether there is a genuine need for trial. And,

under [Federal] Rule [of Civil Procedure] 56(e), it is

ordinarily the preferred first step to allow a party [who

has failed to properly support or address the facts at

issue an opportunity] to properly support or address the

fact[s] at issue.

Id.; see also Anderson, 936 F. Supp. 2d at 1047 (“find[ing the

pllaintiff’s reasons for not complying with [requirement to support

her factual assertions with record evidence] in the first instance

uncompelling,” but, in interest of obtaining “most complete record

possible,” opting to “consider [the p]laintiff’s amended filings in

ruling on [the d]Jefendants’ [summary judgment] motions”) .*°

10 Defendants have acknowledged that “[w]hether or not to

accept Plaintiff’s [Affidavit] ... is within the sound discretion

of this [] Court” (Docket Entry 57 at 5), albeit based on authority

predating the adoption (in 2010) of the current version of Federal

Rule of Civil Procedure 5€(e) on which the Court has relied (see

id. (quoting Lovelace v. Lee, 472 F.3d 174, 204 (4th Cir. 2006),

for proposition that “‘[a] district court has discretion to accept

an untimely affidavit’”). In that case, the United States Court of

Appeals for the Fourth Circuit cited Federal Rule of Civil

Procedure 6(b) and (d) as support for the statement quoted by

Defendants. see Lovelace, 472 F.3d at 204. Then (as now),

“Tulnder Federal Rule of Civil Procedure 6(b)[,] when an act...

[wa]s to be done at or within a certain time, the court [could], in

its discretion, ‘upon motion made after the expiration of the

specified period permit the act to be done where the failure to act

was the result of excusable neglect.’” Nath v. Belzberg, Civ. No.

06-3454, 2007 WL 9643367, at *4 (D. Md. July 13, 2007)

(unpublished) (emphasis added) (quoting Fed. R. Civ. P. 6(b)

(2005)); see also Fed. R. Civ. P. 6(b) (1) (B) (2023) (requiring

showing of “excusable neglect” for extensions sought “after the

time has expired”). Coordinately, at the time of the decision in

Lovelace, under Federal Rule of Civil Procedure 6(d), “‘opposing

affidavits [could] be served not later than 1 day before [a motion]

hearing, unless the court permit[ted] them to be served at some

(continued...)

25

Having exercised its discretion to grant the Motion for Leave

and to permit consideration of Plaintiffs’ Affidavit in conjunction

with Defendants’ Motion for Summary Judgment, the Court agrees with

Defendants that, pursuant to Federal Rule of Civil Procedure

6(b) (1) (A), good cause exists to “grant[ their timely-filed

10(...continued)

other time.” Hickenbottom v. Nassan, Civ. No. 03-223, 2007 WL

7753803, at *9 n.13 (W.D. Pa. Mar. 29, 2007) (unpublished)

(emphasis omitted) (quoting Fed. R. Civ. P. 6(d) (2005)). A

revised version of that provision remains in effect. See Fed. R.

Civ. P. 6(c) (2) (generally providing that “opposing affidavit[s]

must be served at least 7 days before the hearing, unless the court

permits service at another time”). Plaintiff has not requested a

hearing on the Motion for Summary Judgment (even after an

invitation to do so (see Text Order dated Jan. 27, 2025)) (see

Docket Entries 46, 55, 56) and thus the “Motion[ for Summary

Judgment likely] shall be considered and decided .. . without [a]

hearing,” M.D.N.C. LR 7.3(c) (1). As such, the “provision that

opposing affidavits may be served not later than [7] day[s] before

the hearing [likely] becomes meaningless,” AT&T Corp. v. Overdrive,

Inc., No. 1:05CV1904, 2007 WL 315709, at *3 (N.D. Ohio Jan. 30,

2007) (unpublished) (internal quotation marks omitted), and “the

latest deadline for submission of documents in. . . opposition to

[the Motion for S]ummary [J]udgment [ wa]ls the date provided in

this Court’s last order granting an extension of time,” Jones v.

Fulton Cnty., No. 1:06CV2125, 2008 WL 11334167, at *4 n.5 (N.D. Ga.

Sept. 2, 2008) (unpublished), aff’d, 2008 WL 11340310 (N.D. Ga.

Sept. 30, 2008) (unpublished). That leaves only the possible

applicability of Federal Rule of Civil Procedure 6(b) (1) (B), but -

even “[i]f the [ C]ourt properly [could have] denied [Plaintiff’s]

request [to file Plaintiff’s Affidavit out of] time under [that

provision], that would [still] present the question [of] whether

the [C]ourt should... ‘consider[ Defendants’] statement of facts

as undisputed for purposes of the [MJotion for [S]ummary

[J]udgment.’” Warkentin v. Federated Life Ins. Co., 594 F. App’x

900, 902 (9th Cir. 2014) (internal brackets omitted) (quoting Fed.

R. Civ. P. 56(e)(2)). As a result, the Court has proceeded

directly to deciding whether to “exercise its discretion . .. to

deem [Defendants’ averments about the] facts as admitted or instead

. . . allow[] the entry of [Plaintiff’s] late-submitted factual

material while providing [Defendants more] time to [file their

supplemental reply.]” Id. at 903.

26

Extension Motion, requesting] an extension of time in the amount of

seven (7) days after the Court enters [its] ruling as to the . . .

Motion [for] Leave . . . in which to file [their s]upplemental

[r]eply in support of their Motion for Summary Judgment.” (Docket

Entry 58 at 5 (italics omitted).)

CONCLUSION

The Court will treat Plaintiff’s Affidavit as timely, for the

purpose of “giv[ing Plaintiff] an opportunity to properly support

or address the fact[s at issue in the Motion for Summary

Judgment],” Fed. R. Civ. P. 56(e)(1), and will allow Defendants

additional time to file their supplemental reply, so that they can

present argument as to why “Plaintiff’s [factual] contentions in

[Plaintiff’s Affidavit] nevertheless do not defeat their [M]otion

for [S]ummary [J]udgment” (Docket Entry 58 at 4). Moving forward,

“[t]he parties [and other litigants] should not view this exercise

of discretion as permission to disregard the deadlines ordered by

this [C]ourt.” Hickenbottom v. Nassan, Civ. No. 03-223, 2007 WL

7753803, at *10 (W.D. Pa. Mar. 29, 2007) (unpublished).

IT IS THEREFORE ORDERED that the instant Motion for Leave

(Docket Entry 56) is GRANTED, in that the Court accepts Plaintiff’s

Affidavit (Docket Entry 56-1) as timely filed.

27

IT IS FURTHER ORDERED that the instant Extension Motion

(Docket Entry 58) is GRANTED, in that Defendants shall file any

supplemental reply by April 21, 2025.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

April 14, 2025

28