# BELTON v. FIELDS

> District Court, M.D. North Carolina · April 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10845014

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10845014

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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 []
10
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10845014. Public record. Not legal advice.