Opinion

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:24-cv-00037-MR-WCM

WAYNE K. SMITH, SR., Individually )

and as Personal Representative of )

the Estate of Wayne K. Smith, Jr., )

deceased, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

POLK COUNTY, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on the Plaintiff’s Motion for Relief

from Judgment Pursuant to Federal Rule of Civil Procedure 59(e), or, in the

Alternative, 60(b)(2) and 60(b)(6), and for Leave to File Third Amended

Complaint [Doc. 48].

I. BACKGROUND

This action arises from the circumstances of the Decedent Wayne K.

Smith, Jr.’s death. On February 2, 2021, Defendant Deputy Ben Page

noticed the Decedent speeding, activated his blue lights, and pursued the

Decedent. [Doc. 4 at ¶¶ 36-40]. The vehicles exceeded 75 miles per hour

in a 45 mile-per-hour zone, and, as the vehicles neared a curve in the road,

the Decedent’s vehicle “spun out of control and collided into a tree.” [Id. at

¶¶ 38, 42-45]. The collision caused the Decedent’s death. [Id. at ¶ 50].

On February 2, 2024, the Plaintiff Wayne K. Smith, Sr., individually and

as the personal representative of the Decedent, initiated this action asserting

various constitutional violations pursuant to 42 U.S.C. § 1983, violation of 42

U.S.C. § 1981, and claims for wrongful death, battery, false imprisonment,

intentional infliction of emotional distress, negligent infliction of emotional

distress, and punitive damages. [Doc. 1]. The Plaintiff filed an Amended

Complaint asserting the same claims on February 12, 2024. [Doc. 4]. The

Defendants filed a Motion to Dismiss on April 24, 2024. [Doc. 6]. On January

13, 2025, the Magistrate Judge filed a Memorandum and Recommendation

(“M&R”) recommending that the Defendants’ Motion to Dismiss be granted

as to all claims against Defendants Polk County, Sheriff Timothy Wright, and

Deputy Page except for the Plaintiff’s § 1983 claim against Defendant Page

in his individual capacity based on deliberate indifference to the Decedent’s

serious medical need and the Plaintiff’s corresponding claim for punitive

damages. [Doc. 10]. The M&R also recommended that the Plaintiff be

directed to show cause as to why his claims against the remaining

Defendant, Western Surety Company, which had not yet been served,

should not be dismissed [Id. at 2 n.1, 23-24].

On April 7, 2025, the Court overruled the Plaintiff’s objections to the

M&R and accepted the M&R in full. [Doc. 14]. In that Order, the Court

explained that there were “no surviving claims arising out of (1) Deputy

Page’s actions during the high-speed chase, up to Deputy Page approaching

the Decedent’s vehicle after the crash; (2) unlawful seizure or excessive

force; (3) alleged racial discrimination; (4) the County’s policies; or (5) state

law.” [Id. at 14]. As a result, since April 7, 2025, the only claims that have

remained in this matter are a § 1983 deliberate indifference claim stemming

from Defendant Page’s alleged actions after the Decedent crashed into a

tree, and the Plaintiff’s corresponding claim for punitive damages. [Id.].

On April 15, 2026, over a year after the Court accepted the M&R, the

Plaintiff filed a motion seeking reconsideration of the Court’s Order and leave

to file a Third Amended Complaint.1 [Doc. 48]. For grounds, the Plaintiff

contends that evidence developed through discovery in this matter is

sufficient to state plausible § 1983 claims against Polk County and Sheriff

1 The Plaintiff previously filed a Second Amended Complaint for the sole purpose of

substituting Auto-Owners Insurance Company (“Auto-Owners”) for Western Surety

Company as the Defendant surety in this matter. See [Docs. 21-23]. Although the Second

Amended Complaint restates the previously dismissed claims, it is undisputed that the

Second Amended Complaint, which was filed after the Court’s Order accepting the M&R,

did not revive any of the previously dismissed claims or assert any new claims. As a

result, there is no claim pending against Defendant Auto-Owners. Rather, the Plaintiff

alleges that Defendant Auto-Owners is the surety on Defendant Page’s bond. [Doc. 23

at ¶¶ 12-14].

Wright pursuant to Monell v. Department of Social Services of City of New

York, 436 U.S. 658 (1978) for failure to train Defendant Page, negligent hiring

of Defendant Page, and a custom of deliberate indifference to Defendant

Page’s misconduct, as well as a plausible supervisory liability claim under 42

U.S.C. § 1983. [Doc. 48-1 at 16-17]. Having been fully briefed, the Plaintiff’s

motion is ripe for disposition.

II. STANDARD OF REVIEW

A. Motion for Relief from Judgment

The Plaintiff’s motion for relief from judgment has been filed pursuant

to Rules 59(e), 60(b)(2), and 60(b)(6) of the Federal Rules of Civil Procedure,

and both parties have spilled a fair amount of ink regarding the

appropriateness of those rules for the instant motion. [Doc. 48-1 at 5; Doc.

60 at 3-6; Doc. 63 at 6-8]. Motions under Rule 59(e) and Rule 60(b),

however, are appropriate only after entry of final judgment. See Fed. R. Civ.

P. 59(e), 60(b); see also Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d

1462, 1469 (4th Cir. 1991). Because no final judgment has been entered in

this matter, neither Rule 59(e) nor Rule 60(b) is an appropriate vehicle for

the Plaintiff’s motion. Instead, the appropriate vehicle is Rule 54(b), which

provides that an interlocutory order “is subject to revision at any time before

the entry of judgment adjudicating all the claims and the rights and liabilities

of the parties.” Fed. R. Civ. P. 54(b). The Fourth Circuit has permitted district

courts to consider motions inappropriately filed under Rules 59(e) and Rule

60(b) as motions for reconsideration under Rule 54(b), and the Court will do

so here. See Fayetteville Invs., 936 F.2d at 1470.

A Rule 54(b) motion seeks reconsideration and modification of an

interlocutory order on grounds that “(1) there has been an intervening change

in controlling law; (2) there is additional evidence that was not previously

available; or (3) the prior decision was based on clear error or would work

manifest injustice.” Akeva, L.L.C. v. Adidas Am., Inc., 385 F. Supp. 2d 559,

566 (M.D.N.C. 2005). The standard for a Rule 54(b) motion “closely

resembles the standard applicable to motions to reconsider final orders

pursuant to Rule 59(e), but it departs from such standard by accounting for

potentially different evidence discovered during litigation as opposed to the

discovery of ‘new evidence not available at trial.’” Carlson v. Bos. Sci. Corp.,

856 F.3d 320, 325 (4th Cir. 2017) (quoting Pac. Ins. Co. v. Am. Nat. Fire Ins.

Co., 148 F.3d 396, 403 (4th Cir. 1998)). “However, a motion to reconsider

an interlocutory order should not be used to rehash arguments the court has

already considered merely because the movant is displeased with the

outcome.” In Re: Aqueous Film-Forming Foams Prods. Liab. Litig., No. 2:18-

MN-2873-RMG, 2025 WL 4072671, at *1 (D.S.C. Oct. 14, 2025).

B. Motion for Leave to File Third Amended Complaint

Rule 15 of the Federal Rules of Civil Procedure provides that leave to

amend should be “freely give[n] . . . when justice so requires.” Fed. R. Civ.

P. 15. However, “a district court has discretion to deny a motion to amend a

complaint, so long as it does not outright refuse ‘to grant the leave without

any justifying reason.’” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d

597, 603 (4th Cir. 2010) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

A district court may deny a motion to amend when the amendment would be

prejudicial to the opposing party, the moving party has acted in bad faith, or

the amendment would be futile. Id.

III. DISCUSSION

A. Compliance with Local Rules and Standing Orders

1. Consultation Required by Local Rule 7.1(b)

The Defendants contend that the “Plaintiff did not make any attempt to

consult with Defendants prior to filing his motion,” in violation of the Court’s

Local Rules. [Doc. 60 at 1]; see also LCvR 7.1(b). Counsel for the Plaintiff

“acknowledges that no pre-filing conferral was conducted pursuant to Local

Rule 7.1(b).” [Doc. 63 at 4]. Moreover, counsel for the Plaintiff represents

that the failure to confer “was not inadvertent—it was the product of a

litigation-long pattern that made conferral an exercise in futility.” [Id.].

Counsel for the Plaintiff states that “[t]here was nothing to confer about”

because counsel for the Plaintiff expected the Defendants to oppose the

motion.2 [Id. at 5].

The Plaintiff’s counsel’s admissions establish that she intentionally

violated the Court’s rules.3 The Local Rules do not apply only when the

Plaintiff’s counsel expects acquiescence. On this basis alone, the Plaintiff’s

motion may be subject to summary denial. LCvR 7.1(b). Nevertheless, in

the interest of justice, the Court will address the motion on its merits. The

Court admonishes the Plaintiff’s counsel to comply with the Court’s rules and

puts counsel for the Plaintiff on notice that any future motions filed without

consultation in violation of Local Civil Rule 7.1(b) will be summarily denied.

2. Artificial Intelligence

The Defendants contend that the Plaintiff’s memorandum in support of

the instant motion contains two fabricated quotations, along with multiple

quoted statements lacking citation to any authority, and that such

deficiencies suggest that the memorandum was drafted using artificial

2 The Plaintiff complains that the Defendants took the “position” throughout discovery “that

neither the vehicular pursuit nor policies are at issue in this case.” [Doc. 63 at 4]. The

Court notes, however, that neither the vehicular pursuit nor the county’s policies are, in

fact, at issue in this case.

3 The Plaintiff’s counsel has also failed to show proper conferral or attempt to confer

regarding one motion to compel and two motions for sanctions that are currently pending

in this matter. LCvR 7.1(b); see generally [Docs. 46, 61, 68].

intelligence and without adequate human verification. [Doc. 60 at 2, 4 n.1, 9

n.3, 14 n.4]. The Defendants further note that the Plaintiff did not file the

required certification regarding use of artificial intelligence with the

memorandum, in violation of the Court’s Standing Order Regarding the Use

of Artificial Intelligence, No. 3:24-mc-00104-MR (W.D.N.C. June 18, 2024)

(“Standing Order”). [Id. at 2].

The Plaintiff’s counsel acknowledges the failure to include the requisite

certification and states that “the substance and factual record set forth in the

opening brief are grounded in deposition transcripts, personnel records, and

policy documents produced during discovery – not in AI-generated content.”

[Doc. 63 at 3]. The Plaintiff’s counsel also acknowledges that “the ‘quotation’

attributed to Board of County Commissioners v. Brown, 520 U.S. 397 (1997)

in Plaintiff’s opening brief does not appear verbatim in that decision.” [Doc.

63 at 3]. The Plaintiff’s counsel nevertheless contends that the “very

elementary legal principle for which Brown was cited . . . is accurately stated

in Brown.” [Doc. 63 at 3]. The Plaintiff’s counsel similarly acknowledges a

misquotation attributed to Laber v. Harvey, 428 F.3d 404, 426 (4th Cir. 2006)

in the Plaintiff’s opening brief and contends that the “operative point . . . is

unambiguous Fourth Circuit law.” [Doc. 63 at 3]. Finally, to “provide[ ]

additional context for the one aspect of the Plaintiff’s briefing that the Court

may find deficient,” the Plaintiff’s counsel represents that she was involved

in a motor vehicle accident the day before filing the memorandum at issue.

[Id. at 4].

The Plaintiff’s counsel has not provided an adequate explanation for

the fabricated quotations identified by the Defendants. The Plaintiff’s

counsel attempts to allay concerns about the fabricated quotations by stating

that the principles of law for which the fabricated quotations were offered are

nevertheless accurate. [Id. at 3]. That says nothing, however, about the

inaccuracy of the fabricated quotations themselves. While the Plaintiff’s

counsel represents that the “substance and factual record” in the

memorandum at issue were not “grounded” in “AI-generated content,” the

Plaintiff does not directly deny that the fabricated quotations of legal authority

were the result of hallucinations by artificial intelligence. [Id.]. Moreover, in

the midst of responding to concerns about use of artificial intelligence, the

Plaintiff’s counsel represents that “[e]very factual assertion in this Reply has

been verified by the undersigned attorney.” [Id. (emphasis added)]. The

Plaintiff’s counsel fails, however, to say anything about verification of the

legal citations in the Reply, and the Plaintiff’s counsel failed to submit the

requisite certification regarding use of artificial intelligence with the Reply.

[Doc. 63].

Counsel for the Plaintiff also failed to include the required certification

regarding use of artificial intelligence with memoranda filed in support of

three of the Plaintiff’s four other pending motions in this matter. See

generally [Docs. 46-1, 57-1, 61-1]. On May 21, 2026, counsel for the Plaintiff

filed a certification regarding use of artificial intelligence in memoranda filed

in support of the instant motion as well as in “any other filing that was made

before this Court in which the certification was inadvertently left off.” [Doc.

85 at 1]. That certification, however, does not cure the issue regarding the

fabricated quotations in the Plaintiff’s opening brief and the Plaintiff’s

counsel’s insufficient explanation of those errors. Those errors, along with

the Plaintiff’s counsel’s repeated failures to file timely certifications in

compliance with the Court’s Standing Order, raise serious questions about

the Plaintiff’s counsel’s conduct. Accordingly, the Court will direct the

Plaintiff’s counsel to show cause as to why she should not be sanctioned for

failure to comply with the Court’s Standing Order. In so doing, the Plaintiff’s

counsel must explain the origin of the fabricated quotations and her repeated

failure to provide timely certifications that comply with the Court’s Standing

Order prior to the filing of a general certification on May 21, 2026.

B. Motions for Relief from Judgment and for Leave to Amend

The Plaintiff contends that evidence developed through discovery in

this matter is sufficient to establish plausible Monell claims against Polk

County and Sheriff Wright for failure to train Defendant Page, negligent hiring

of Defendant Page, and a custom of deliberate indifference to Defendant

Page’s misconduct, as well as a plausible supervisory liability claim under 42

U.S.C. § 1983. [Doc. 48-1 at 16-17]. Accordingly, the Plaintiff asks the Court

to reconsider its prior dismissal of the Plaintiff’s Monell claim4 and grant the

Plaintiff leave to file a Third Amended Complaint. [Doc. 48-1 at 2-3].

“To hold a municipality liable for a constitutional violation pursuant to

Monell, a plaintiff must establish ‘the existence of an official policy or custom

that is fairly attributable to the municipality and that proximately caused the

deprivation of their rights.’” Johnson v. Baltimore City, Maryland, 163 F.4th

808, 821–22 (4th Cir. 2026) (quoting Howard v. City of Durham, 68 F.4th 934,

952 (4th Cir. 2023)). The official policy or custom must be the “moving force

4 The Plaintiff repeatedly states that the Court previously dismissed the Plaintiff’s

“negligent hiring” claim. [Doc. 48 at 1; Doc. 48-1 at 2, 4, 6, 19]. That is incorrect, however,

because the Plaintiff has never asserted a negligent hiring claim. Negligent hiring is never

mentioned, let alone discussed, in the Plaintiff’s First Amended Complaint [Doc. 4], the

Magistrate Judge’s Memorandum and Recommendation [Doc. 10], or the Court’s Order

[Doc. 14] accepting the M&R. While the Court acknowledges the Plaintiff’s desire to

assert a negligent hiring claim in a Third Amended Complaint, the Court admonishes the

Plaintiff not to misrepresent the Court’s rulings or the Plaintiff’s own prior assertions.

[behind] the constitutional violation.” City of Canton, Ohio v. Harris, 489 U.S.

378, 389 (1989).

Regarding an alleged failure to train, “[o]nly where a municipality's

failure to train its employees in a relevant respect evidences a deliberate

indifference to the rights of its inhabitants can such a shortcoming be

properly thought of as a city policy or custom that is actionable under § 1983.”

Id. (internal quotation marks omitted). “The specifically identified deficiency

in training also must be shown to have in fact caused the ultimate violation.”

Jordan by Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994).

Regarding Monell claims based on a custom or practice of

“condonation”—of failing to stop or correct a pattern of unconstitutional

conduct—a Plaintiff must allege a “persistent and widespread” practice of

condoning constitutional violations. Owens v. Baltimore City State's Att'ys

Off., 767 F.3d 379, 403 (4th Cir. 2014). “A sufficiently close causal link

between such a known but uncorrected custom or usage and a specific

violation is established if occurrence of the specific violation was made

reasonably probable by permitted continuation of the custom.” Spell v.

McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987). “[F]ailure to correct the

known practices must be such as to make the specific violation ‘almost

bound to happen, sooner or later,’ rather than merely ‘likely to happen in the

long run.’” Id.

Here, the only available predicate constitutional violation for a Monell

claim is the Plaintiff’s Fourteenth Amendment deliberate indifference claim

against Defendant Page. The Plaintiff contends that discovery has revealed

evidence about Defendant Page’s driving record, his prior on-duty vehicular

accidents, and instances of his alleged misconduct, as well as evidence

about Polk County’s decision to hire Defendant Page and its responses to

his prior on-duty vehicular accidents and the crash at issue in this matter.

[Doc. 48-1 at 6-11]. None of that evidence, however, would provide a

sufficient basis for the Plaintiff to state a plausible Monell claim or § 1983

supervisory liability claim against Polk County or Sheriff Wright based on

Defendant Page’s alleged deliberate indifference, which concerns only

Defendant Page’s actions regarding the Decedent’s medical needs after the

Decedent’s vehicle collided with a tree. The Plaintiff has not identified an

official policy, custom, or practice regarding treatment of medical needs, nor

has the Plaintiff identified an official policy, custom or practice that has a

sufficient causal connection to the alleged constitutional violation by

Defendant Page.

Moreover, the Plaintiff filed his motion for leave to amend just twenty-

two days prior to the then-scheduled dispositive motions deadline. This is

far too late. The Court dismissed nine of the claims in the Plaintiff’s Amended

Complaint more than a year prior to the instant motion for leave to amend.

Those claims were dismissed pursuant to Rule 12(b)(6) because they were

not plausibly pled. The Plaintiff now contends that discovery uncovered

evidence supporting those claims. The fact that the Plaintiff went fishing for

evidence regarding dismissed claims, however, does not rehabilitate the

Plaintiff’s failure to plausibly present allegations supporting those claims.

Instead, it merely shows that the Plaintiff failed to do adequate pre-filing

investigation and filed suit without a sufficient understanding of his own case.

Accordingly, the Court will deny both the Plaintiff’s motion for relief from

judgment, which the Court has construed as a motion for reconsideration,

and the Plaintiff’s motion for leave to amend, as the motion is untimely and,

in any event, such amendment would be futile. The Plaintiff’s case proceeds

only on the Plaintiff’s deliberate indifference claim against Defendant Page

in his individual capacity and the Plaintiff’s corresponding claim for punitive

damages.

IV. CONCLUSION

Having considered the Plaintiff’s characterization of the additional

evidence revealed during discovery, the Court reaffirms its prior dismissal of

the Plaintiff’s Monell claim and will deny the Plaintiff’s motion. The Court

further admonishes the Plaintiff’s counsel to comply with the Court’s rules

regarding conferral and will direct the Plaintiff’s counsel to show cause as to

why she should not be sanctioned for violating the Court’s Standing Order.

O R D E R

IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Relief

from Judgment Pursuant to Federal Rule of Civil Procedure 59(e), or, in the

Alternative, 60(b)(2) and 60(b)(6), and for Leave to File Third Amended

Complaint is hereby DENIED. The Plaintiff’s case will proceed only on the

Plaintiff’s deliberate indifference claim against Defendant Page in his

individual capacity and the Plaintiff’s corresponding claim for punitive

damages.

IT IS FURTHER ORDERED that within fourteen (14) days of entry of

this Order the Plaintiff’s counsel is hereby DIRECTED TO SHOW CAUSE in

writing as to why she should not be sanctioned for failure to comply with the

Court’s Standing Order Regarding the Use of Artificial Intelligence.

IT IS SO ORDERED. Signed: June 3, 2026

Martiff Reidinger ey

Chief United States District Judge MES

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