govinfo:USCOURTS-ncmd-1_22-cv-00287-2

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 
 
 
MARTIN RUSSELL DIAMOND, 
 
 P l a i n t i f f , 
 
 v. 
 
ODETAYO ODEDERE, 
 
 D e f e n d a n t . 
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1:22CV287 
 
 
 
 
MEMORANDUM OPINION AND ORDER 
LORETTA C. BIGGS, District Judge. 
Martin Russell Diamond (“Plaintiff”) brought this action pursuant to 42 U.S.C. § 1983 
against Odetayo Odedere (“Defendant”). (ECF No. 1 at 3.) Plaintiff alleges three causes of 
action against Defendant stemming from an alle ged deprivation of his constitutional rights 
during an incident that occurre d during his incarceration. ( Id. at 4.) Before the Court is 
Defendant’s Motion to Bifurcate Trial and Us e Special Interrogatories, (ECF No. 96), along 
with several matters brought to the Court’s attention during the pre-trial conference including 
a purported motion to dismiss by Plaintiff and Defendant’s purported motion for summary 
judgment. For the reasons stated herein, Pl aintiff’s purported Motion to Dismiss and 
Defendant’s purported Motion for Summary Judg ment are denied. Further, Defendant has 
not sufficiently asserted a defense of qualified immunity. Consequently, Defendant’s Motion 
to Bifurcate and Use Special Interrogatories is de nied. Finally, Defendant will be allowed to 
assert a counterclaim of assault. 

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I. BACKGROUND 
Plaintiff, a state prisoner, filed his form “Complaint for Violation of Civil Rights” after 
an incident that occurred on April 12, 2021, at Southern Correctional Institution. (ECF No. 
1 at 1, 4.) Plaintiff was pro se when he filed his Complaint, bu t has retained counsel. (ECF 
Nos. 47, 48.) His Complaint named four De fendants—Defendants Parker, Euote, Crisco, 
and Odedere—and asserted claims regarding ex cessive force and failure to intervene in 
violation of the Eighth Amendment. (ECF No. 1 at 21–26.) Defendant Odedere, proceeding 
pro se at the time, filed his answer, (ECF No. 19 at 1), after an Entry of Default against him 
was set aside. (Text Order dated November 14, 2022.) Defendant Od edere since retained 
counsel. (ECF Nos. 43, 44.) 
Following discovery, Defend ants Parker, Euote, and Cr isco filed a Motion for 
Summary Judgment as to all claims against them. (ECF No. 29.) Upon Recommendation by 
Magistrate Judge, and adoption by the undersigned, summary judgment was granted in part 
and denied in part. (ECF No. 49 at 1–2.) It was granted for the excessive force claim against 
Defendant Parker, and the failure to intervene claim against Defendant Euote and denied for 
all remaining claims. (Id.) The case was then set for trial. (ECF No. 52 at 1.) 
The instant Motion to Bifurcate and Use Sp ecial Interrogatories was filed jointly by 
Defendants Odedere, Crisco, an d Euote. (ECF No. 96 at 1. ) However, on November 14, 
2024, Defendants Euote and Crisco reached a se ttlement agreement with Plaintiff. (Minute 
Entry dated November 14, 2024.) Leavin g Defendant Odedere as the only remaining 
Defendant. (Id.) The trial in this case is schedule d to begin on December 16, 2024. (Text 
Order dated October 28, 2024.) Three of Plaintiff’s claims against Defendant remain for trial, 

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two claims under 42 U.S.C. § 1983 for excessive force and on e state law claim for battery. 1 
(ECF No. 99 at 9–14, 14–15.) On November 19, 2024, both parties a ppeared before this 
Court for a pretrial conference. (Minute Entry dated November 19, 2024.) The parties were 
given the opportunity to bring to the Court’s attention any issues to be addressed before trial. 
Based on the parties’ statements during the conference, this Court will address Plaintiff 
and Defendant’s purported dispositive motions , Defendant’s qualified immunity defense, 
Defendant’s Motion to Bifurcate and Use Special Interrogatories, (ECF No. 96), and Plaintiff’s 
opposition to Defendant’s counterclaims. Each issue will be addressed in turn. 
II. THE PARTIES’ PURPORTED DISPOSITIVE MOTIONS 
Rule 83 of the Federal Rules of Civil Procedure provides that “a district court . . . may 
adopt and amend rules governing its practice.” Fed. R. Civ. P. 83(a)(1). Such rules “have the 
force and effect of law and are binding upon the parties and the court which promulgated 
them.” Jackson v. Beard, 828 F.2d 1077, 1078 (4th Cir. 1987) (internal quotation marks omitted) 
(citation omitted). This Court, the United Stat es District Court for the Middle District of 
North Carolina, has promulgated such rules whic h are featured prominently on its website. 
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF NORTH CAROLINA (2024), https://www.ncmd.uscourts.gov/local-
rules-and-orders. Local Rule 7.3 provides that “[e]ach motion shall be set out in a separate 
document” and “[a]ll motions . . . shall be accompanied by a brief.” L.R. 7.3(a). This rule also 
provides that “[a]ll motions shall state with particularity the grounds therefor.” L.R. 7.3(b). 
 
1 While Plaintiff’s Complaint pleads state law “cla ims of assault and battery,” (ECF No. 1 at 3), the 
Court acknowledges that Plaintiff, in his Trial Br ief, concedes that the facts only support a claim for 
battery. (ECF No. 99 at 14 n.5.) 

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The parties have represented that while proceeding pro se they each filed dispositive 
motions for this Court’s consideration. Pre- Trial Conference Transcript 6:6-9, 11:21-23. 
Defendant argues that his Answer to Plaintiff’s complaint, (ECF No. 19 at 12–13), contains a 
Motion for Summary Judgment. Pre-Trial Conference Transcript 11:11-14; 11:20-23. Plaintiff 
argues that part of his Answer to Defendant’s counterclaim, (ECF No. 24 at 3–5), should be 
construed as a 12(b)(6) Motion to Dismiss. Pr e-Trial Conference Transcript 6:4-9. While a 
motion or pleading filed by parties appearing pro se “is to be liberally construed” and “must be 
held to less stringent standards than formal pleadings dr afted by lawyers,” Estelle v. Gamble , 
429 U.S. 97, 106 (1976) (internal quotation mark s omitted) (citation omitted); parties are not 
free to violate the Federal Rules of Civil Procedure or this Court’s Local Rules. 
These filings suffer from the following Loca l Rules violations an d defects. Both 
Plaintiff and Defendant’s pur ported motions were included in the same document as their 
respective Answers. (See ECF Nos. 19 at 12–13, 24 at 3–5); see also L.R. 7.3(a). Defendant’s 
purported motion for summary judgment w as submitted without any explanation or 
accompanying brief as required by the Local Rules. ( See ECF No. 19 at 12–13); see also L.R. 
7.3(a)-(b). Plaintiff’s motion to dismiss also did not include an accompanying brief. (See ECF 
No. 24); see also L.R. 7.3(a). Further, neither party, even after obtaining counsel, asked this 
Court for leave to amend these filings. 
For these reasons, both motions will be denied. L.R. 7.3(k). Given that the Court was 
made aware of the nature of these motions on the eve of trial, the parties will not be permitted 
to resubmit their motions. The bases of the pa rties’ denied motions will certainly be soon 
adjudicated by the jury. 

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III. DEFENDANT’S QUALIFIED IMMUNITY DEFENSE 
In his Motion to Bifurcate and Use Special Interrogatories, Defendant asserts a defense 
of qualified immunity. (ECF No. 96 at 1.) He states that bifurcation is necessary to resolve 
factual issues bearing on qualified immunity. ( Id.) In his Response to Defendant’s motion, 
Plaintiff states that bifurcation is not prope r because qualified immunity was “not pled and 
[was] never raised prior to the filing of [Defendant’s] motion.” (ECF No. 103 at 2.) 
Qualified immunity “shields government offi cials performing discretionary functions 
from personal-capacity liability for civil damages under § 1983.” Ridpath v. Bd. Of Governors 
Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006). Qualified immunity is an affirmative defense 
and “the burden of pleading it rests with the defendant.” Crawford-El v. Britton, 523 U.S. 574, 
587 (1998) (internal quotation marks omitted) (citation omitted). Further qualified immunity 
must be raised in an answer or a dismissal motion. See Fed. R. Civ. P. 8(c) (“In responding to 
a pleading, a party must affirmatively state an y avoidance or affirmative defense.”). Since 
“qualified immunity is designed to shield officers not only from liability but from the burdens 
of litigation, its establishment at the pleading or summary judgment stage has been specifically 
encouraged.” Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992) (citation omitted). 
At the pre-trial conference on November 19 , 2024, this Court gave Defendants an 
opportunity to argue how and why they belie ve the defense of qualified immunity was 
sufficiently raised. Pre-Trial Conference Transcript at 8:6-8, 10:15. Defendant’s counsel stated 
that Defendant pled his defense to qualified immunity in his answer. Id. at 10:17-24. He 
argued that it was pled in a section labeled “affirmative defenses to summary judgment.” Id. 
at 10:19-24, 10:20. Defendant contends that a liberal construction of his Answer would show 

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that Defendant was “trying to assert all of th e immunities that are available to him as a 
corrections officer.” Id. at 10:23-24. 
In his Answer, Defendant states that “his actions were necessary to maintain safety and 
security of the correctional housing unit, to protect correctional staff and other offenders, to 
maintain the custody and control of a classified violent offender, and ultimately, to protect the 
public.” (ECF No 19 at 13.) Defendant’s counsel argued that this language satisfied qualified 
immunity because Defendant is attempting to assert that his “actions were reasonable under 
the circumstances . . . one of the prongs of qualified immunity.” Pre-Trial Conference 
Transcript at 13:2-5. This Court does not find that argument persuasive. 
Federal courts are charged with liberally construing pleadings filed by pro se litigants. 
However, “the liberal construction . . . does not require the court to ignore clear defects in 
pleading . . . or to become an advocate for the pro se party.” Chrisp v. Univ of N.C. Chapel Hill, 
471 F. Supp. 3d 713, 716 (M.D.N.C. July 10, 2020) (internal citations omitted). 
While Defendant was pro se when he filed his Answer, it would take more than a liberal 
reading to find that he sufficiently plead a defense of qualified immunity. See id. Nowhere in 
his Answer does Defendant explicitly state the phrase ‘qualified immunity’ let alone the words 
immunity. See Sales v. Grant, 224 F.3d 293, 296 (4th Cir. 2000) (“[A] claim of qualified immunity 
can be waived if not squarely presented to the district court . . . .”) (internal citation omitted). 
Additionally, a section titled affirmative defens es with general statements about safety and 
security is not enough to plead qualified immunity. See Beaudett v. City of Hampton , 775 F.2d 
1274, 1278 (4th Cir. 1985) (“Dist rict judges are not mind read ers. Even in the care of pro se 
litigants, they cannot be expected to construct full blown claims from sentence fragments . . . 
.”). 

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Beyond the alleged assertion in his Answer, Defendant did not attempt to pursue a 
defense of qualified immunity in a motion for summary judgment, unlike the former 
Defendants in this case. (See ECF No. 29 at 1.) The first time Defendant explicitly mentions 
or seeks any ruling pertaining to a defense of qualified immunity was on November 8, 2024, 
in the Joint Motion to Bifurcate the Trial and Use Special Interrogatories. (ECF No. 96 at 1.) 
Defendant has therefore waived qualified immunity. See Am. Humanist Ass’n v. Perry , 303 F. 
Supp. 3d 421, 427 n.7 (E.D.N .C. Mar. 29, 2018) (“Because defendants failed to raise the 
affirmative defense beyond a conclusory stat ement in their answer, the court finds that 
defendants have waived qualified immunity.”). 
Further, allowing Defendant to assert a defe nse of qualified immunity at this stage in 
litigation would be unduly prejudicial to Plaintiff. The Motion to Bifurcate was filed about a 
month before trial, which is not sufficient time for Plaintiff to prepare for a defense. See Jones 
v. Wells, No. 92-1765, 1993 WL 61892, at *1 (4th Cir. 1993) (fin ding that the district court 
acted within its discretion in refusing to ru le on summary judgment motion raising qualified 
immunity for the first time since “such an allowance would have prejudiced the plaintiff in his 
preparation for the approaching trial.”). 
The Court finds that Defendant did not suff iciently plead an affirmative defense of 
qualified immunity in his Answer. Therefore, Defendant has waived his right to assert this 
defense at trial. 
IV. MOTION TO BIFURCATE AND USE SPECIAL INTERROGATORIES 
Defendant filed a Motion to Bifurcate Trial and Use Special Interrogatories to “resolve 
the immunity issues prior to reaching the liability and damages phases at trial.” (ECF No. 97 
at 1.) Defendant also requests special interrogat ories to be submitted to the jury to resolve 

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the factual issues that bear on his entitlement to qualified immunity. (Id. at 4.) Plaintiff in his 
Response argues that Defendant is not entitled to bifurcation because he has not sufficiently 
asserted a defense of qualified immunity. (ECF No. 103 at 4.) 
A court may order separate trials of one or more separate issu es or claims “for 
convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b). The 
burden is on the party requesting separate trials to convince a court to allow it. F & G Scrolling 
Mouse, L.L.C. v. IBM Corp., 190 F.R.D. 385, 387 (M.D.N.C. Oc t. 26, 1999) (internal citations 
omitted). Whether to allow for se parate trials on different issues is within the discretion of 
the trial judge. Bowie v. Sorrell, 209 F.2d 49, 51 (4th Cir. 1953) (citations omitted). The Court 
has “wide latitude” to determine whether bifurcation is appropriate. See Dixon v. CSX Transp., 
Inc., 990 F.2d 1440, 1443 (4th Cir. 1993). 
Defendant’s motion is solely based on resolvin g factual issues relating to his defense 
of qualified immunity. As the Court previously held that Defendant did not sufficiently plead 
a defense of qualified immunity, there is no reas on left for this Court to find a reason for 
separate trials. 
This Court finds that Defendant’s Moti on to Bifurcate Trial and Use Special 
Interrogatories is denied as Defendant has waived qualified immunity. 
V. DEFENDANT’S COUNTERCLAIM 
Because a document filed pro se is “to be liberally construed,” Gamble, 429 U.S. at 106; 
a Court may, if necessary, “create a better correspondence between the substance of a pro se 
motion’s claim and its underl ying legal basis” to prev ent unnecessary dismissal. United States 
v. Brown, 797 F. App'x 85, 89–90 (4th Cir. 2019) (citing Castro v. United States , 540 U.S. 375, 
381–82 (2003)). However, the “[p]rincip les requiring generous construction of pro se 

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complaints are not . . . without limits.” Beaudett, 775 F.2d at 1278 (4th Cir. 1985). The 
mandated liberal construction means that “if th e court can reasonably read the pleadings to 
state a valid claim on which the [petitioner] could prevail, it should do so,” but it “may not 
rewrite a petition to include claims that were never presented.” Barnett v. Hargett , 174 F.3d 
1128, 1133 (10th Cir. 1999) (internal quotation marks omitted) (internal citations omitted); cf. 
Gordon v. Leeke, 574 F.2d 1147, 1152–53 (4th Cir. 1978). 
Defendant made allegations against the Pl aintiff in his Answ er, which he filed pro se, 
and characterizes them as a “Counterclaim.” (ECF No. 19 at 11–1 2.) In his answer, 
Defendant states that Plaintiff “began throwing unknown substances and liquid substances” 
at the Defendant and others. ( Id. at 11.) Defendant argued that “by throwing unknown 
substances and liquid substances” Plaintiff committed an “Assault with bodily fluids or wastes 
. . . . on a person employed at a State or local detention facility, while the officer is discharging 
or attempting to discharge his or her official duties.” (Id. at 11–12.) Defendant’s allegations 
about Plaintiff were argued to support violations of criminal statutes. (See id. at 12;) see also N.C. 
Gen. Stat. §§ 14-34.7, 14-258.4. These claims arise out of the same incident that underlies 
Plaintiff’s Complaint, though the facts are contested. See Fed. R. Civ. P. 13(a)(1); compare 
(ECF No. 1 at 18–19) with (ECF No. 19 at 11–12.) Further, Defendant included some facts 
to support his claim of assault and asked for relief on that basis. (ECF No. 19 at 11.) 
At the pre-trial conference, Defendant, now represented by counsel, argued that his 
claims should be construed as ones for civil damages. Pre-Trial Conference Transcript 6:20-
25–7:1-8. However, the civil statute for assault has different elements than those Defendant 
initially asserted. Compare N.C. Gen. Stat. §14-34.7 with Dickens v. Puryear, 276 S.E.2d 325, 330 
(1981) (listing elements of a civil claim fo r common law assault in No rth Carolina). Given 

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that Defendant filed his Answer and asserted his counterclaim pro se, this Court is inclined to 
construe this filing liberally to accommodate a civil assault claim. See Brown, 797 F. App’x at 
89–90. Yet, prior to the conference date, ev en once represented by counsel, Defendant did 
not make any effort to ask for leave to amend his Answer or counterclaims. See Pre-Trial 
Conference Transcript 6:12-19. To that end, this Court must also determine whether it would 
be prejudicial to the Plaintiffs to allow Defendant to assert his counterclaim at such a late stage 
in this litigation. Cf. Frank M. McDermott, Ltd. v. Moretz, 898 F.2d 418, 421 (4th Cir. 1990). 
Firstly, Plaintiff responded to Defendant’ s Answer and counterclaim in a timely 
manner. (See ECF No. 24.) In his filing, Plaintiff also asserted several “defenses” in response 
to Defendant’s claims. ( Id. at 2–5.) Plaintiff’s stated defenses contest Defendant’s alleged 
facts and interpret Defendant’s claims as civil rather than criminal accusations. (See id. at 2–5; 
see e.g., id. at 2 “no acts or failures to act by answer ing Plaintiff were a proximate cause of the 
injuries or damages, if any complained of by Defendant.”). Plaintiff has clearly been on notice 
of the civil nature of Defendant’s counterclaim, however inartfully they were pleaded. 
Therefore, while Defendant's counterclaim s contained in his Answer are not well-
denominated, the Court declines to strike each of these claims because of the severity of this 
remedy. Yet, this Court will only allow Defendant to purs ue his civil claim of assault, which 
is named in his filing. Defendant’s purported battery claim, which is only mentioned in the 
joint proposed jury instructions and was never pled in any form, will not be allowed. (See ECF 
No. 106 at 13–14;) see Bing v. Brivo Sys., LLC , 959 F.3d 605, 618 (4th Cir. 2020) (stating that 
liberal construction of a pro se litigant's pleadings “does not mean overlooking the pleading 
requirements”). 

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Accordingly, the Court will exercise its supplemental ju risdiction to allow Defendant 
to bring his counterclaim of civil damages for an alleged assault along with Plaintiff’s civil 
damages claim for battery. See 28 U.S.C. § 1367(a). This ruling should not be construed to as 
a judgment about the merits of Defendant’s assault claim. This Court recognizes that Plaintiff 
has repeatedly represented that there are insufficient facts to successfully prove these claims. 
(See e.g., ECF No. 99 at 16–17.) Should that remain true at the close of trial, Plaintiff should 
feel free to move for a directed verdict in the manner permitted by the Federal Rules of Civil 
Procedure. See Fed. R. Civ. P. 50(a)-(b). 
ORDER 
IT IS THEREFORE ORDERED that Defendant’s purported Motion for Summary 
Judgment and Plaintiff’s purported Motion to Dismiss are DENIED WITH PREJUDICE. 
IT IS FURTHER ORDERED that Defendant’s defense of qualified immunity is 
waived. 
IT IS FURTHER ORDERED that Defendant’s Motion to Bifurcate Trial and Use 
Special Interrogatories, (ECF No. 96), is DENIED 
IT IS FURTHER ORDERED that Defendant may present evidence related to a 
counterclaim of civil assault at trial. 
This, the 9th day of December 2024. 
 
/s/ Loretta C. Biggs 
United States District Judge 
 

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