# PORTER

> District Court, M.D. North Carolina · December 16, 2025

URL: https://www.frixlaw.com/law-library/cases/11226109

## Case

- **Full name:** Antwain Porter v. Yates, in his official and individual capacities
- **Court:** District Court, M.D. North Carolina
- **Decided:** December 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTWAIN PORTER, )
)
Plaintiff, )
)
v. ) 1:24CV551
)
YATES, )
in his official and individual capacities, )
)
Defendant. )

ORDER, MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This case concerns a 42 U.S.C. § 1983 claim of excessive force brought by Antwain
Porter, a pretrial detainee at all relevant times. (Docket Entry 2 at 2–41, Complaint.) The
defendant is Sergeant Phillip Yates, a police officer for the City of Winston-Salem. (Id. at 2;
Docket Entry 22-3 ¶ 2, Affidavit of Sergeant Phillip Yates.) The case is now before the Court
on Porter’s Motion for Discovery (Docket Entry 27) and Motion for Appointed Counsel
(Docket Entry 28) as well as Yates’s Motion for Summary Judgment (Docket Entry 21). For
the reasons laid out in this opinion, the Court denies Porter’s Motion for Discovery and denies
Porter’s Motion for Appointed Counsel without prejudice. The undersigned also recommends
that the Court grant Yates’s Motion for Summary Judgment.

1 Unless otherwise noted, all citations herein refer to the page numbers at the bottom
right-hand corner of the documents as they appear in the Court’s CM/ECF system.
I. BACKGROUND
Porter alleges that, on October 31, 2023,2 at approximately 2:00 p.m., he
was placed in a restraint chair from booking,3 I was calm and
didn’t resist. I was slamed [sic] on the floor by Officer Yates while
in cuffs, Then he twisted and broke my left shoulder while other
officers where [sic] twisting my legs and other arm, all this happen
after they transported me from booking to 4B floor of forsyth
county detention center Jail, I was kneed and punched.

(Compl. at 4–5.) Porter further alleges that
I was placed in a restraint chair after sitting calm for hours then
transported to a Jail cell and slamed [sic] on the floor while cuffed
then was punched and kneed officer yates and other officers then
twisted my arms and legs, during this time officer yates broke my
shoulder.

(Id. at 5.) Porter alleges that this took place in the “4th floor pode [sic] B” of the jail. (Id.) In
the section of the form complaint asking what federal constitutional or statutory right the
plaintiff is basing their Section 1983 claim on, Porter wrote: “Abuse, Excessive force, pain and
suffering.” (Id. at 3.)
As a result of the above use of force, Porter alleges he “injured [his] left big toe,”
“dislocated and broke” his left shoulder, and “sustained neck and back injuries.” (Id. at 5.)
Porter further alleges that he

2 Porter originally alleged that these events took place on November 1, 2023. (See
Compl. at 4.) However, Porter’s attachment submitted in response to Yates’s Motion for
Summary Judgment states that he “was wrongfully attacked by defendant Yates on 10-31-
2023” (Docket Entry 26-1 at 1) and that “I did correct myself on the wrong date originally
filed” (id. at 3).

3 According to Yates’s brief in support of his motion for summary judgment, the
booking area is a room where “arrestees are brought . . . to wait before appearing before a
Magistrate, being fingerprinted and photographed (processed), and then being taken by
Forsyth County Sheriff's Deputies into the jail portion . . . .” (Docket Entry 22 at 6 n.4.)
[t]urned in multiple sick calls about injuries starting 1-07-2024
then another one on 1-28-2024, then filled out another one on
06-23-2024 along with other sick calls I didn’t wright [sic] a paper
[text crossed out] document for. But I never received any
medical attention.

(Id.) Porter requests “$70,000 for pain and suffering and neglect.” (Id.)
Yates denies that he injured Porter as described above. (Docket Entry 11 at 3.) Instead,
Yates alleges that, on October 31, 2023, he arrested Porter in the public lobby of a magistrate’s
office. (Docket Entry 22-3 ¶¶ 8–9, Yates Affidavit.) Porter resisted being searched incident
to the arrest, resulting in Yates and another officer pining Porter to a wall, forcing him to the
ground, and kneeing him. (See Smith Video 2 at 00:09:45–00:12:05; Yates Video 2 at 00:02:08–
End; Yates Aff. ¶¶ 11–14; Docket Entry 22-4 ¶¶ 9–14, Affidavit of Officer Joshua Terry; see
generally Terry Video 3.) Officers then moved Porter from the lobby to the booking area of
the jail. (Yates Aff. ¶ 14.) Then, after some time, other officers moved Porter to a restraint
chair and transported him from the booking area to a jail cell. (Id. ¶ 20.) Yates alleges that he
did not participate in transporting Porter from the booking area to the jail cell and “did not
enter the jail, the fourth floor of the jail, or any cell occupied by Porter on that date or at any
other time.” (Id. ¶ 21; see also Docket Entry 22-5 ¶ 11 (Affidavit of Corporal David G. Smith
stating that Yates “did not participate in, or assist the deputies in, transporting Porter from
the booking room to the jail, and Sergeant Yates did not enter the jail with those deputies.”).)
Yates also submitted videos from the body cameras of four police officers: himself, Corporal
Smith, Sergeant Mullins, and Officer Terry. These videos are summarized below.
A. Body Camera Footage from Yates
Yates submitted three videos from his body camera. The first takes place outside
Insight Human Services, a provider of substance abuse and mental health services. (See Yates

Aff. ¶ 4; Docket Entry 22 at 3.) In relevant part, it depicts Yates getting out of his car to find
two people yelling at each other, later identified as Porter and Christopher Smith
(“Christopher”) (Yates Aff. ¶ 5). (Yates Video 1 at 00:00:00–00:01:15.) Porter tells Yates that
someone pulled a gun on him; Christopher tells Yates that Porter hit him with his bag. (Id. at
00:00:50–00:01:15.)
Christopher further explains to Yates that Porter was told not to stand in front of the

building. (Id. at 00:04:00–00:04:20.) When Porter continued to stand there, Christopher told
Porter that someone would call the cops on him if he did not move, which resulted in Porter
becoming angry, yelling at Christopher, pushing on the door of the car Christopher was sitting
in, and kicking the front of the car Christopher was sitting in as well as the passenger side
mirror. (Id. at 00:04:20–00:05:32.) Christopher shows Yates the car in question; it has a dent
on the front passenger side. (Id.) Christopher also tells Yates that when Christopher turned

his back to Porter, Porter hit Christopher in the back of the head with a backpack, and that
Christopher wants to go to the magistrate’s office to press charges. (Id. at 00:05:50–00:06:20.)
Porter denies doing any of this and says that Christopher threatened him and another
person pulled a gun. (Id. at 00:11:22– 00:12:20.)
Yates also with speaks with Calvin Ward, a man who works at Insight Human Services
and purports to know what happened. (Id. at 00:14:40–00:17:15.) Ward tells Yates that a man

had been yelling and making people uncomfortable, so Ward asked the man to leave. (Id. at
00:17:15–00:17:30.) The man then stood outside with his face up against the door, then against
the window, and continued to come through the door and yell inside despite having been
asked to leave. (Id. at 00:17:28–00:17:45.) Ward says that the man then kicked another man’s

bumper and mirror, after which that other man got out of the car; the first man then assaulted
the second man with a bookbag and spit on him. (Id. at 00:17:45–00:18:04.) Ward indicates
that the man from the car was Christopher by pointing at him and says that Christopher never
did anything aggressive besides getting out of his car, and that the first man was the aggressor.
(Id. at 00:18:04–00:18:35.)
Yates tells Porter that Christopher is about to go to the magistrate’s office and Porter

can do so as well if he wants to give his side of the story to the magistrate. (Id. at 00:21:50–
00:23:10.) Yates tells Porter that the magistrate’s office is located right beside the jail, and
Porter walks away. (Id. at 00:23:10–00:23:30.) Yates and Christpher then confirm that they
will meet at the magistrate’s office. (Id. at 00:23:30–End.)
The second video from Yates’s body camera takes place in the lobby of the magistrate’s
office. (See Yates Aff. ¶ 9.) Yates exits the lobby speaking with Christopher, the two shake

hands, Christopher leaves, and Yates reenters the building. (Yates Video 2 at 00:00:00–
00:00:30.) Yates tells Porter, who is sitting inside, that the magistrate has issued a warrant for
his arrest, and that Porter should stand up, take off his backpack, and put his hands behind
his back. (Id. at 00:00:30–00:00:49.) Porter complies and Yates handcuffs him, while Porter
questions why he was not allowed to press charges given he was threatened and arrived first.
(Id. at 00:00:50–00:01:30.)
Porter then says, “God, Ima kill that bitch,” and Yates says, “Don’t say that.” (Id. at
00:01:30–00:01:36.) Porter says, “Ima kill that bitch. I can say whatever the fuck I want. Y’all
can give me another charge. Ima kill Jasmine Gunter and my baby that’s inside her. . . . Ima

kill that bitch. I don’t give a fuck. . . .” (Id. at 00:01:36–00:02:09.)
Yates tells Porter that he is going to undo Porter’s jacket, which is currently zipped up
to fully cover Porter, with the hood tightly secured over Porter’s head, but as Yates reaches
over Porter jerks away, saying, “Don’t touch me.” (Id. at 00:02:08–00:02:11.) Officer Terry—
the only other person in the room—grabs Porter’s back as Porter continues to jerk away, and
Yates tells Porter he has to search him to make sure Porter does not have a weapon, and

unzips Porter’s jacket. (Id. at 00:02:11–00:02:20.) Yates again tells Porter that he is under
arrest, to which Porter replies, “So what? Bruh stop touching me,” and continues to jerk away.
(Id. at 00:02:20–00:02:26.) Terry and Yates pin Porter, struggling, to the wall, and Yates says,
“You’re not gonna fight with us in here,” to which Porter responds, “Well stop touching me
then.” (Id. at 00:02:26–00:02:29.) Terry can be heard telling Porter, “Stop,” throughout. (Id.)
Yates again tells Porter twice that he must search him and Porter, still struggling, responds,

“’Chu mean? Fuck you touch me for bruh? I’m already in handcuffs, they can search me in
there.” (Id. at 00:02:26–00:02:35.)
Yates and Terry continue to attempt to search Porter, and he continues to struggle and
yell, saying “Fuck outta my pockets,” obscuring the camera at times, then breaking free from
Yates as Terry yells, “Stop.” (Id. at 00:02:35–00:03:11.) Yates regains a hold on Porter, who
repeatedly yells, “They can search me in there,” and attempts to break free again before Yates

and Terry manage to get Porter to the ground, where they continue the search Porter over his
protests. (Id. at 00:03:11–End.) The video ends; Yates’s affidavit indicates that the battery on
his body worn camera died. (Yates Aff. ¶ 15.) Terry Video 3, summarized below, depicts the
remainder of the struggle to search Porter.

The third video from Yates’s body camera takes place in the booking area. (See Yates
Aff. ¶ 15.) It begins as the camera is set down on a table across from Porter, who is seated
with his hands behind his back. (Yates Video 3 at 00:00:00–00:00:30.) Porter yells and talks,
complaining about the fact that he did not get a chance to tell his side of the story to the
magistrate. (Id. at 00:30–00:07:10.)
Eventually, Corporal Smith enters the room, walks over to Porter, and asks Porter what

happened. (Id. at 00:07:10–00:07:30.) Porter says that his life was threatened, and Smith
responds, “That was part of the—over there on Fourth Street right? What happened down
here?” (Id. at 00:07:30–07:43.) Porter responds that he came to press charges after being
threatened with a gun but was not allowed to talk to the magistrate or give his side of the story.
(Id. at 00:07:43–09:10.) Smith asks Porter if he is hurt, and Porter initially says he is, then says
he is not “going to disclose that information, because I feel like anything that I say, I feel like

y’all will try to keep me here, so I’ll stay quiet and mind my business.” (Id. at 00:09:10–
00:10:00.) Smith asks Porter to confirm that he does not need an ambulance, and Porter says,
“If I’m not going to jail, no.” (Id. at 00:10:00–00:10:10.) Smith tells Porter that he does not
know whether Porter is going to jail, but he needs to know whether Porter is injured, to which
Porter responds that he is injured, “But you don’t have to worry about it.” (Id. at 00:10:10–
10:20.) Smith calls for emergency medical services (“EMS”), and Porter says he will not let

EMS see him, then continues to complain about other matters. (Id. at 00:10:20–00:11:25.)
Smith again asks Porter where he is injured, Porter again refuses to answer the question, and
Smith walks off camera. (Id. at 00:11:25–00:12:30.)
Porter continues to talk, mostly unintelligibly and apparently to himself, for roughly

the next twenty minutes, after which three people with a stretcher arrive. (Id. at 00:12:30–
00:35:20.) Porter says, “I’m good. I’m hurt and all that but I don’t want to be seen.” (Id. at
00:35:15–00:35:22.) One of the individuals asks Porter what’s going on, and Porter says he
has scrapes on his elbow, pain in his shoulder, neck, and back from being kicked or kneed by
Yates while in handcuffs, but that he does not want his vitals taken, then proceeds to accuse
Yates of falsely telling him that he could give his side of the story if he came to the magistrate’s

office. (Id. at 00:35:22–00:38:10.)
Sergeant Mullins enters the frame and asks Porter what hurts. (Id. at 00:38:10–
00:38:35.) Porter says he was kneed and kicked, and that he is hurt on his head, neck, and
back, and has scrapes on his elbows; still, Porter tells Mullins that he does not want to be
examined. (Id. at 00:38:35–00:39:40.) After Porter complains about a variety of unrelated
matters for several minutes, Mullins walks away. (Id. at 00:39:40–00:43:35.)

Porter continues to talk and yell at random intervals. (Id. at 00:43:35–01:23:20.) At
one point he starts yelling that he is “not going to comply” and if “y’all tell me to get down on
the ground . . . I’m not going to do none of that. Y’all going to have to put me in a chair.
Soon as y’all try to get me out, y’all gonna have to put me back in the chair. I’m not complying,
none of that. . . I’m willing to die right now . . . I’m resisting to the max. . . . Y’all gonna have
to tase me over and over again. Y’all gonna have to make my heart stop.” (Id. at 01:06:00–

01:09:00.)
Eventually, at least seven officers enter the room and surround Porter as he yells. (Id.
at 01:23:20–01:23:40.) One officer asks Porter if he will walk with them, and Porter replies
“No, I’m straight resisting and all that. . . . Y’all gonna have to tase me. Y’all say get out the

room and all that, I’m not. Y’all put me in a chair, y’all gonna have to put me back in. . . .”
(Id. at 01:23:40–01:24:30.) During this time, Yates appears to pick up the camera and attach
it to his chest but to remain behind the table; he does not join the other officers surrounding
Porter. (Id.) The officers wheel a chair into the room, then grab Porter on both sides and
transfer him to the chair, strap him in, and wheel him out of the room. (Id. at 01:24:30–End.)
B. Body Camera Footage from Smith

Yates submitted two body camera videos from Corporal Smith. In the first video,
Smith enters the lobby of the magistrate’s office, where multiple police officers including Yates
and Terry are standing next to Porter, who is handcuffed. (Smith Video 1 at 00:00:00–
00:02:25.) The struggle to search Porter, as depicted by Yates Video 2 and Terry Videos 2 and
3, has apparently just concluded. The officers pick up what appear to be Porter’s belongings—
a bookbag, wallet, etc.—from the floor as Porter complains that he was supposed to be

pressing charges, warns the officers, “Don’t start,” and says he will “kill that bitch and her
baby if y’all try to do this to me.” (Id. at 00:02:25–00:04:34.)
As the officers escort Porter out, Terry remarks to Smith, “I don’t know what he was
charged with originally but he headbutted me in the face so I’m fuckin’ charging if no one else
does.” (Id. at 00:04:35–00:04:40.) The officers walk outside, then Terry says: “I think he broke
my nose.” (Id. at 00:04:40–00:05:41.) The other officers look at Terry’s nose and agree that it

is broken, then discuss what Terry should do for treatment. (Id. at 00:05:41–End.)
The second video takes place in the booking area. Porter can be seen sitting handcuffed
and Yates is sitting behind a table. (Smith Video 2 at 00:00:00–00:04:22.) The next few
minutes of the video are duplicative of Yates Video 3 at 00:07:10–00:12:30. (Id. at 00:04:22–

00:06:15.) Smith then walks into a different room and Yates follows him. (Id. at 00:06:15–
00:06:30.)
Yates then proceeds to tell Smith about the events leading to Porter’s arrest. (Id. at
00:06:20–00:09:45.) When describing the arrest, Yates says, “First he’s cool, and then all of a
sudden once we got handcuffs on him and started to search him—cause we don’t know what
he’s got on him at this point . . . soon as we start trying to search him, he starts pulling away

like if he might have something on him. I’m thinking does he have a gun, what does he have.
We pin him to the corner of that wall right there. At one point I see him rear his head back .
. . I’m calling for backup . . . and he hit Terry in the face. I guess that’s how Terry got, at some
point during the struggle I seen Terry has blood on his nose. At some point during the struggle
my camera cut off ‘cause I never got to go get a new one . . . . At one point I just mounted
him. This was after he rolled over and was still pulling away from Terry, resistive behavior.”

(Id. at 00:09:45–00:10:40.) Smith asks, “Still standing up…?” and Yates responds, “No at one
point . . . I think it was after he headbutted Terry, I was tired of getting, like, him swinging his
head around and all that stuff so I brought him on down to the ground. Once I got him down
to the ground, he was rolling over at one point, had his legs, still had to search him to figure
out if he’s got a weapon or anything. At one point I delivered a knee strike to the back of his
major muscle mass here in the leg, just trying to get compliance. That just made him mad. At

one point I ended up just . . . mounting him by putting my legs up on top of his legs and I sat
on top of him with his hands behind his back so that he could still breathe . . .” (Id. at 00:10:40–
00:11:20.) Smith says, “So he was on his back?” (Id. at 00:11:19–00:11:21.) Yates says,
“Correct, and we were just holding him down at that point, because we’re trying to get people

to come. . . .” (Id. at 00:11:21–00:12:05.)
Smith and Yates return to the booking area soon after, and the remainder of the video
largely duplicates the content of Yates Video 3. (See id. at 00:12:05–01:17:40.) When a large
group of officers surrounds Porter to escort him out, Yates can be seen standing behind a
table and remaining there as other officers put Porter in the restraint chair and wheel him out
of the room. (Id. at 01:17:30–End.)

C. Body Camera Footage from Mullins
Yates submitted three videos from the body camera of Sergeant Mullins. The first, in
relevant part, duplicates the events of Yates Video 3 at 00:38:10–00:43:35, in which Porter tells
Mullins he is injured but refuses to let Mullins inspect him. (See Mullins Video 1 at 00:02:50–
End.)
The second video, in relevant part, involves a conversation between Mullins and Yates

in which Yates describes the events leading up to the arrest as well as the struggle to search
Porter after the arrest. Yates largely provides the same information that he told Smith in Smith
Video 2 at 00:09:45–00:12:05, but describes the struggle and knee strike he delivered to Porter
in slightly more detail. (Mullins Video 2 at 00:00:35–End.) Specifically, Yates says “At one
point, he was on his side, still pulling away. We didn’t know if he had a gun, if he had a knife,
what he had on him because he wouldn’t let us search him. So as he’s resisting I took my knee

and delivered a knee strike to the major muscle mass, back of his leg, trying to strike the
peroneal. Don’t know if I actually got to hit it because he was squirming all over the place
trying to prevent Terry and me from holding on to him.” (Id. at 00:05:10–00:05:35.) Mullins
later asks if this happened after Porter headbutted Terry, and Yates confirms that the headbutt

happened while they were still standing up, then Yates got Porter on the ground, “but he was
still being resistive, so I did a knee strike to the major muscle mass of his leg to get his attention
to stop pulling away so I could search him and make sure he didn’t have a gun.” (Id. at
00:07:50–00:08:15.)
The third video depicts Mullins walking in and out of the booking area, with Porter
yelling throughout. (See generally Mullins Video 3.)

D. Body Camera Footage from Terry
Yates submitted three videos from the body camera of Officer Terry. The first video
aligns with the events depicted by Yates Video 1. (See generally Terry Video 1.) The second
video aligns with Yates Video 2, showing Yates and Terry arrest Porter in the otherwise empty
lobby of the magistrate’s office, and a struggle ensue after Yates begins to try to search Porter.
(See generally Terry Video 2.) The video ends as Yates and Terry pin Porter to the wall.

The third video appears to start where the second video left off, and includes the
remainder of the struggle to search Porter past the point when Yates’s body camera died. The
video begins with Porter struggling and saying, “Fuck outta my pockets,” while Yates and
Terry hold him against the wall. (Terry Video 3 at 00:00:00–00:00:05.) Porter yells and rears
toward Terry multiple times, obscuring the camera, as Terry yells, “Stop.” (Id. at 00:00:05–
00:00:30.) Terry and Yates force Porter to the ground, face down, and Yates can be seen
kneeling over Porter as Porter says, “Stop,” and Yates says, “You have to be searched
man…I’m trying to get you released.” (Id. at 00:00:30–00:01:00.)
Terry and Yates start to search Porter again, and Porter responds to Yates, yelling

“Fuck y’all not. Y’all trying to make me kill somebody. Y’all think I’m a bitch. Fuck no I’m
not going [unintelligible] jail.” (Id. at 00:01:00–00:01:20.) Terry starts to search Porter’s
waistband and Porter says, “Fuck. That ain’t shit. Stop touching me. Fuck off me,” then
rears back. (Id. at 00:01:20–00:01:33.) Terry yells, “Stop,” Yates’s knee appears to contact the
back of Porter’s leg, and Porter yells “[Unintelligible] You got me fucked up. . . . . You gonna
have to jail me. [Unintelligible] Knee me again. . . .” (Id. at 00:01:33–00:01:45.)

In the struggle, Porter appears to have been turned onto his back, Yates is now
straddling Porter’s legs or waist, and Terry is holding Porter down with one hand on Porter’s
chest and another on his head. (Id. at 00:01:45–00:01:50.) Porter continues to yell, saying
things like: “If you don’t get outta my face, I’m gonna make y’all hurt me.” (Id. at 00:01:50–
00:03:15.) Yates talks into his radio, giving his location and asking for “a couple units.” (Id.
at 00:03:15–00:03:30.) As Terry and Yates ask Porter to calm down, Yates remarks that his

camera battery died. (Id. at 00:03:30–00:04:15.) Terry and Yates are finally able to search
Porter’s waistband; they then stand him back up, and the frame shows that several other
officers have entered the room. (Id. at 00:04:15–00:05:00.) The video from this point on
aligns with Smith Video 1.
II. MOTION TO COMPEL DISCOVERY
The undersigned understands Porter’s Motion for Discovery (Docket Entry 27) to be
a motion to compel discovery and denies it because it is untimely and does not certify that

Porter first attempted to obtain discovery without court involvement.
Rule 37 allows a party to file a motion to compel after the opposing party refuses to
turn over appropriate discovery. Fed. R. Civ. P. 37(a)(1). However, “[t]he motion must
include a certification that the movant has in good faith conferred or attempted to confer with
the person or party failing to make disclosure or discovery in an effort to obtain it without
court action.” Id.; see also L.R. 37.1(a) (“The Court will not consider motions and objections

relating to discovery unless moving counsel files a certificate that after personal consultation
and diligent attempts to resolve differences the parties are unable to reach an accord.”).
District courts generally have broad discretion in managing discovery, including
whether to grant or deny a motion to compel. Lone Star Steakhouse & Saloon, Inc. v. Alpha of
Virginia, Inc., 43 F.3d 922, 929 (4th Cir. 1995); Erdmann v. Preferred Research, Inc. of Georgia, 852
F.2d 788, 792 (4th Cir. 1988). Additionally, “[a] pro se litigant is entitled to some consideration

of his non-lawyer status[.]” Crisp v. Allied Interstate Collection Agency, 149 F. Supp. 3d 589, 593
(M.D.N.C. 2016) (emphasis in original). However, “pro se litigants are not entitled to a general
dispensation from the rules of procedure or court-imposed deadlines.” Dewitt v. Hutchins, 309
F. Supp. 2d 743, 748–49 (M.D.N.C. 2004) (citing McNeil v. United States, 508 U.S. 106, 113
(1993)); see also Dish Network L.L.C. v. Jones, No. 1:15CV874, 2016 WL 4491722, at *2
(M.D.N.C. Aug. 25, 2016). Without the ability to hold pro se litigants to such deadlines,
“effective judicial administration would be impossible.” Diamond v. Odedere, No. 1:22CV287,
2024 WL 5705096, at *4 (M.D.N.C. Oct. 25, 2024) (citation modified) (Auld, M.J.).
Here, the Court denies Porter’s Motion for Discovery because it is untimely and does

not certify that Porter first attempted to serve discovery requests on Yates despite the Court
previously having instructed Porter to do so. On September 16, 2024, the Court placed these
proceedings on “the Standard discovery track modified only to allow for a discovery
completion date of March 17, 2025, to account for Plaintiff’s status as a prisoner.” (Docket
Entry 12.) Porter filed a Motion for Discovery similar to the instant one on September 30,
2024. (Docket Entry 13.) The Court denied that motion without prejudice and instructed

Porter to “properly serve Defendant with discovery requests such that Defendant may
respond.” (Text Order dated 01/03/2025.) Then, on May 21, 2025—two months after the
close of discovery—Porter filed the instant motion, again without “includ[ing] a certification
that [he had] in good faith conferred or attempted to confer with [Yates] to make disclosure
or discovery in an effort to obtain it without court action.” See Fed. R. Civ. P. 37(a)(1). Having
already given Porter a second chance to obtain the discovery he sought while discovery

remained open, the Court declines to give him a third chance now that discovery has closed.
For these reasons, the Court denies Porter’s Motion for Discovery.
III. MOTION TO APPOINT COUNSEL
The Court denies Porter’s Motion for Appointed Counsel (Docket Entry 28) because
there is no indication that this case falls into the exceptional category under which such an
appointment is warranted. A litigant has no right to appointed counsel in a 42 U.S.C. § 1983

suit. Alexander v. Parks, 834 F. App’x 778, 782 (4th Cir. 2020). The Court may appoint counsel
in civil cases only when exceptional circumstances exist. Cook v. Bounds, 518 F.2d 779, 780
(4th Cir. 1975). The Court should ask “(1) whether the plaintiff has a colorable claim and (2)
considering the claim’s objective complexity and the plaintiff’s subjective abilities, whether the

plaintiff lacks the capacity to present it.” Jenkins v. Woodard, 109 F.4th 242, 247 (4th Cir. 2024)
(quotation marks omitted). In Jenkins, for example, appointing counsel was appropriate
because the plaintiff had both a colorable claim and “severe mental illness,” including
depression, bipolar disorder, and anxiety disorder, all of which required daily medication to
treat. Id. at 244, 249.
Here, the Court finds no indication that this is an exceptional case warranting

appointment of counsel. Porter does not appear to have the sort of colorable claim required
to justify an appointment of counsel. See infra, Section V. And although Porter argues that he
lacks the capacity to present his claim—stating that he has a “lack of professional training”
and a “legal disability”—the record contains no additional information about Porter’s
disability. (See Docket Entry 28 at 1.) Moreover, Porter’s claim is not complex: it involves a
single defendant, stems from a single incident, and appears to involve only a single potential

legal violation (excessive force in violation of the Fourth Amendment). (See Compl. at 2–5.)
Porter’s Motion for Appointed Counsel (Docket Entry 28) is therefore denied without
prejudice.
IV. PORTER’S SURREPLY
Before turning to Yates’s summary judgment motion, the undersigned first considers
a preliminary matter: whether to consider Porter’s Surreply filed June 20, 2025 regarding

Yates’s Motion for Summary Judgment. (See Docket Entry 34.) “The Rules of Practice and
Procedure of the United States District Court for the Middle District of North Carolina only
allow for the filing of a motion, a response to a motion, and a reply.” DiPaulo v. Potter, 733 F.
Supp. 2d 666, 670 (M.D.N.C. 2010) (citing Local Rules 7.3 & 56.1). “Generally, courts allow

a party to file a surreply only when fairness dictates based on new arguments raised in the
previous reply.” Id. Otherwise, a court need not consider a surreply. See, e.g., id.
Here, while the arguments in Porter’s Surreply are often difficult to understand, they
do not include any argument that Yates’s Reply advanced new arguments. (See generally Docket
Entries 34.) The Surreply also appears to rehash arguments similar to those Porter advanced
in his earlier Response to Yates’s motion.4 (Compare Docket Entry 26 with Docket Entry 34.)

There is one exception: the Surreply responds to Yates’s argument that the “affidavit” attached
to Porter’s Response is improper. (See Docket Entry 34 at 3–4.) Because Yates raised that

4 First, the Surreply argues that Porter “did not get any police body camera footage
disks.” (Docket Entry 34 at 1.) If Porter means he did not get any video of him being escorted
to his jail cell, this section duplicates his arguments from his Response. (See Docket Entry 26
at 1 (“There is video footage of me and defendant Yates, but not of the interactions in
question.”).) If Porter means that he received no video evidence at all, this section contradicts
his Response. (See id.)
Second, the Surreply advances multiple arguments related to Porter’s allegation that
Yates came to Porter’s jail cell and injured him. (See Docket Entry 34 at 1–3, 5–9.) Porter
also presented these sorts of arguments in his Response. (See Docket Entry 26 at 1–2
(“Defendant Yates and his attorney failed to prove he was not inside my cell . . . .”).) The
Surreply spends more time on these arguments than Porter’s initial Response did—for
example, the Surreply includes assertions that Yates is “not competent” (id. at 2), that Yates
“tampered with the evidence” (id. at 3), and that Yates’s evidence is inadmissible (id. at 7)—
but it ultimately offers no additional evidence to support Porter’s claim.
Third, the Surreply argues that the Court should appoint counsel for Porter due to
Porter’s difficulties representing himself. (See Docket Entry 34 at 3–4.) Porter advanced
similar arguments in both his Response (see Docket Entry 26 at 2–3) and his Motion for
Appointed Counsel (see Docket Entry 28 at 1).
Fourth, and as discussed above, the Surreply responds to Yates’s argument that Porter’s
attachment to his Response was not a proper affidavit. (See Docket Entry 34 at 4–5.)
argument for the first time in his Reply, the undersigned has considered Porter’s Surreply on
the question of whether Porter’s attachment to his Response (Docket Entry 26-1) is a proper
affidavit. The undersigned does not otherwise consider Porter’s Surreply.

V. MOTION FOR SUMMARY JUDGMENT
The undersigned recommends the Court grant Yates’s Motion for Summary Judgment
because Porter has produced insufficient evidence to allow a reasonable jury to decide in his
favor. Summary judgment is appropriate when there exists no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnick
v. Int’l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997) (per curiam). The party seeking

summary judgment bears the initial burden of coming forward and demonstrating the absence
of a genuine issue of material fact. Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 718 (4th
Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has
met their burden, the non-moving party must then affirmatively demonstrate “specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citation omitted). There is no issue for trial unless there is sufficient

evidence favoring the non-moving party such that a reasonable jury could return a verdict for
that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986); Sylvia Dev. Corp. v. Calvert
Cnty., 48 F.3d 810, 817 (4th Cir. 1995). The moving party can therefore bear their burden
either by presenting affirmative evidence or by demonstrating that the non-moving party’s
evidence is insufficient to establish their claim. Celotex Corp., 477 U.S. at 331 (Brennan, J.,
dissenting).
When ruling on a motion for summary judgment, the Court must view the evidence,
and all justifiable inferences from the evidence, in the light most favorable to the non-moving
party. Zahodnick, 135 F.3d at 913; Anderson, 477 U.S. at 253–55. However, the party opposing

summary judgment may not rest on mere allegations or denials, and the court need not
consider “unsupported assertions” or “self-serving opinions without objective
corroboration.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); see
also Anderson, 477 U.S. at 248–49.
Here, the Court should grant Yates’s motion for summary judgment for three reasons:
(1) no reasonable jury could find that Yates used excessive force5 on Porter because the

evidence is so one-sided, (2) Porter’s official capacity claim against Yates cannot satisfy Monell,
and (3) Porter’s individual capacity claim against Yates cannot overcome qualified immunity.
The undersigned addresses each of these reasons below.
A. Excessive Force
Porter has not produced sufficient evidence to allow a reasonable jury to find that Yates
used excessive force against him, whether in his jail cell or in the lobby of the magistrate’s

office. “[A]ll claims that law enforcement officers have used excessive force—deadly or not—
in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be

5 Insofar as Porter intended to bring an additional claim of deliberate indifference to
medical needs under the Fourteenth Amendment (see Compl. at 5 (alleging Porter “never
received any medical attention” for his injuries)), Porter has also failed to create a genuine
issue of material fact over that claim. For such a claim to succeed to succeed, a defendant
must have “acted or failed to act” in some way regarding the plaintiff’s medical care. See Short
v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023), cert. denied, 144 S. Ct. 2631 (2024). But Porter
never even alleges, much less evidences, that Yates—the only defendant in this case—was
involved in Porter’s alleged denial of medical care. (See generally Compl.; see also Docket Entries
26 and 26-1.)
analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Franklin v. City of
Charlotte, 64 F.4th 519, 530 (4th Cir. 2023). “Three factors, established by the Supreme Court
in Graham, govern this analysis: (1) ‘the severity of the crime’; (2) ‘whether the suspect poses

an immediate threat to the safety of the officers or others’; and (3) ‘whether he is actively
resisting arrest or attempting to evade arrest.’” Id. (quoting Graham v. Connor, 490 U.S. 386,
396 (1989)); accord. Martin v. Seabolt, No. 1:21CV906, 2023 WL 3074718, at *10–*13 (M.D.N.C.
Apr. 25, 2023), adhered to on denial of reconsideration, No. 1:21CV906, 2024 WL 1256067
(M.D.N.C. Mar. 25, 2024), and aff’d sub nom. Martin v. Short, No. 23-1588, 2024 WL 3200715
(4th Cir. June 27, 2024).

Here, the Graham factors are mostly irrelevant because Porter produced no evidence
that Yates used force in the manner Porter describes, whereas Yates has produced evidence
that he did not use such force. Porter attempted to file an affidavit saying Yates “wrongfully
attacked” him when “escort[ing] me to my cell from the restraint chair I was siting in.”
(Docket Entry 26-1 at 1.) But an “unsworn declaration, certificate, verification, or statement”
must be made “under penalty of perjury, and dated” for it to “have the same force and effect

as an affidavit or other sworn statement.” Lumoa v. Potter, 351 F. Supp. 2d 426, 430 (M.D.N.C.
2004) (quoting 28 U.S.C. § 1746). Porter’s attempted affidavit was not submitted under
penalty of perjury (see Docket Entry 26-1); it therefore constitutes only an unsupported
allegation.
Yates, on the other hand, produced both his own affidavit and an affidavit from
Corporal Smith, both stating that Yates did not escort Porter to his jail cell. (Yates Aff. ¶ 21;

Docket Entry 22-5 ¶ 11.) While Yates has not produced any video of Porter being escorted
into his jail cell, Yates has produced videos of Porter being removed from the booking area in
a restraint chair, presumably to be taken to his jail cell, and those videos do not depict Yates
as being involved in that process. (See Yates Video 3 at 01:23:20–End; Smith Video 2 at

01:17:30–End.) Thus, the evidence in this case is so one-sided that, even when viewed in the
light most favorable to Porter, it does not create a genuine issue of material fact over whether
Yates was involved in transferring Porter from booking to a jail cell. It therefore also cannot
create a genuine issue of material fact over whether Yates used excessive force while doing so.
Evidence does exist that Yates used force to search Porter after arresting him in the
lobby of the magistrate’s office. But Porter does not appear to intend that incident to form

the basis of this suit. Porter’s Complaint and his attempted affidavit both discuss only
excessive force that occurred when Porter was transported from a restraint chair to a jail cell.
(See Compl. at 4–5; Docket Entry 26-1 at 1.) Porter’s Response also states that Yates provided
“video footage of me and defendant Yates, but not of the interactions in question. Defendant
Yates and his attorney failed to prove he was not inside my cell on the fourth floor . . . .”
(Docket Entry 26 at 1.) Given that Yates did submit video evidence of Yates’s forceful search

of Porter in the lobby of the magistrate’s office, Porter appears to be indicating that he is not
suing Yates over that incident.
But even if Porter had intended to sue Yates over the incident in the lobby, there would
still be no genuine issue of material fact over whether Yates used excessive force at that time.
Again, Porter has produced no evidence regarding that incident. And the evidence produced
by Yates—even when viewed in the light most favorable to Porter—shows that all three

Graham factors weigh in favor of Yates’s force being reasonable. Regarding the first Graham
factor—the severity of the crime—the crime for which Porter was arrested was assault, which
raised the risk that Porter might become physically violent with the arresting officers. (See
Yates Video 2 at 00:00:30–00:01:30; Yates Aff. ¶ 9.) Regarding the second Graham factor—

whether the suspect poses an immediate threat—the force used by Yates was part of an
attempt to search Porter to determine whether he posed an immediate threat. (See Yates Video
2 at 00:02:08–End; Yates Aff. ¶¶ 11–14; see generally Terry Video 3.) Regarding the third Graham
factor—whether the suspect is actively resisting arrest—Porter was actively resisting by
struggling and jerking away from Yates and Terry while they constantly yelled “Stop” and
attempted to search him; as a result, Porter briefly escaped from Yates and fractured Terry’s

nose. (See Yates Video 2 at 00:02:08–End; Yates Aff. ¶¶ 11–14; Terry Aff. ¶ 12; Smith Video
1 at 00:05:41–End; see generally Terry Video 3.) For these reasons, it was objectively reasonable
for Yates to pin Porter to a wall, force Porter to the ground, and knee Porter’s leg (see Smith
Video 2 at 00:09:45–00:12:05; Yates Video 2 at 00:02:08–End; Yates Aff. ¶¶ 11–14; see generally
Terry Video 3) so that Yates could regain control and conduct a search.
B.

Yates argues that Porter’s claim against him in his official capacity does not satisfy the
requirements of Monell v. Department of Social Services. (See Docket Entry 22 at 19–21.) The
undersigned agrees. Monell provides an additional reason why Porter’s official capacity claim
against Yates should be dismissed.
“[O]fficial capacity suits generally represent but another way of pleading an action
against the entity of which the officer is an agent[.]” Hughes v. Blankenship, 672 F.2d 403, 406

(4th Cir. 1982) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)); accord. Robertson v.
Anderson Mill Elementary Sch., 989 F.3d 282, 287 n.5 (4th Cir. 2021). If that entity is a
municipality, Monell forbids courts from holding it liable for the independent acts of its
employees under § 1983. See 436 U.S. 658, 691 (1978). A municipality is liable for its

employees’ acts only if it “follows a custom, policy, or practice by which local officials violate
a plaintiff’s constitutional rights.” Owens v. Baltimore City State’s Att’ys Off., 767 F.3d 379, 402
(4th Cir. 2014).
Here, Porter has sued Yates, an employee of the City of Winston-Salem. (See Yates
Aff. ¶ 2.) Porter’s official capacity claims must therefore satisfy Monell by showing a custom,
policy, or practice of rights violations in Winston-Salem. But as previously explained, Porter

has failed to produce sufficient evidence for even a single rights violation; he therefore cannot
meet Monell’s more stringent requirement of showing a custom, policy, or practice of
violations. For this reason, Porter’s claim against Yates in his official capacity should be
dismissed.
C. Qualified Immunity
Yates asserts qualified immunity from Porter’s claims against him in his individual

capacity. (See Docket Entry 17 at 5; Docket Entry 29 at 6–7.) The undersigned agrees.
Qualified immunity provides an additional reason why Porter’s individual capacity claim
against Yates should be dismissed.
“The affirmative defense of qualified immunity protects law enforcement officers
against lawsuits seeking money damages from them in their individual capacity.” Bostic v.
Rodriguez, 667 F. Supp. 2d 591, 605 (E.D.N.C. 2009). Deciding whether qualified immunity

bars a claim requires a court to determine: “(1) whether the official violated a constitutional
right; and if so, (2) whether the right was ‘clearly established’ at the time of its violation.” Rock
for Life-UMBC v. Hrabowski, 411 Fed. App’x 541, 547 (4th Cir. 2010) (citation omitted).
As previously explained, Porter has not shown that Yates used excessive force against

him. He therefore cannot meet the first element required to avoid qualified immunity.
VI. CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED that Porter’s Motion for
Discovery (Docket Entry 27) be DENIED and that Porter’s Motion for Appointed Counsel
(Docket Entry 28) be DENIED without prejudice. Furthermore, IT IS HEREBY
RECOMMENDED that Yates’s Motion for Summary Judgment (Docket Entry 21) be

GRANTED.

/s/ Joe L. Webster
United States Magistrate Judge
December 16, 2025
Durham, North Carolina

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11226109. Public record. Not legal advice.