govinfo:USCOURTS-ncwd-1_24-cv-00037-1

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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 punitiv e
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, t he 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 c laims 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, i t 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 order s
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 verb atim 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 w as 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 a n 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 p robable 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 l iability 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 a n 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

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