Smith v Polk County, et al

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 to Compel
Non-Party North Carolina State Highway Patrol to Comply with Subpoena
and for Fees [Doc. 46] and Motion to Compel Defendant to Answer Plaintiff’s
Second Set of Interrogatories and for Fees [Doc. 57].
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,
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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]. On April 7, 2025, the Court
dismissed all of the Plaintiff’s claims except for 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. [Doc. 14].
The Plaintiff has now filed two motions to compel that are currently
pending: one against non-party North Carolina State Highway Patrol
(“NCSHP”), and another against Defendant Page. [Docs. 46, 57]. Having
been fully briefed,1 both motions are ripe for disposition.
1 The Plaintiff did not file a Reply in support of the motion to compel NCSHP, but the time
period within which to do so expired on May 18, 2026.
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II. STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides, in pertinent
part, as follows:
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its
likely benefit. Information within this scope of
discovery need not be admissible in evidence to be
discoverable.
Fed. R. Civ. P. 26(b)(1).
Under Rule 37 of the Federal Rules of Civil Procedure, “a party may
move for an order compelling disclosure or discovery.” Fed. R. Civ. P.
37(a)(1). “[T]he party or person resisting discovery, not the party moving to
compel discovery, bears the burden of persuasion.” Kinetic Concepts, Inc.
v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010). The decision to
grant or deny a motion to compel is generally an issue within the broad
discretion of the trial court. See Lone Star Steakhouse & Saloon, Inc. v.
Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).
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III. DISCUSSION
A. Motion to Compel the North Carolina State Highway Patrol
On April 11, 2026, the Plaintiff moved to compel non-party NCSHP to
comply with a Rule 45 subpoena that requested records of Defendant Page’s
vehicle accident history across a period of sixteen years, records of any
instances of NCSHP’s interactions with Defendant Page, and records of two
vehicle collisions in 2020 in which Defendant Page was involved. [Doc. 46
at 1-2]. The Plaintiff contends that Defendant Page’s “driving history,
disciplinary record, and prior conduct in similar situations are directly relevant
to the surviving [deliberate indifference] claim and [Defendant Page’s]
credibility.” [Doc. 46-1 at 3]. The Court notes, however, that the relevance
of such discovery to the deliberate indifference claim is, at best, tenuous.
Exhibits filed with the Plaintiff’s motion and NCSHP’s response reveal
that the parties were engaged in productive communications regarding the
subpoena until the Plaintiff filed the motion to compel, and that NCSHP has
diligently attempted to comply with the subpoena. On April 6, 2026, NCSHP
informed the Plaintiff’s counsel via email that, pursuant to a routine retention
schedule, NCSHP no longer possessed the requested records of the two
2020 collisions. [Doc. 46-4 at 2]. In that same email, NCSHP also offered
to search certain email inboxes with particular parameters in order to comply
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with the subpoena. [Id.]. Counsel for the Plaintiff appears not to have replied
to NCSHP until five days later, at 12:27pm on Saturday, April 11, 2026, at
which time counsel for the Plaintiff posed several questions to NCSHP. [Id.
at 1]. Then, instead of waiting for a response from NCSHP, the Plaintiff filed
a motion to compel NCSHP later that evening. [Doc. 46; Doc. 62-9 at 1]. In
the memorandum in support of that motion, the Plaintiff represents that the
Plaintiff accepted NCSHP’s April 6, 2026 offer to conduct an email inbox
search for records and then states that “[a]n agreement to search is
meaningless without production of results.” [Doc. 46-1 at 20]. At the time of
filing that statement, however, the Plaintiff appears to have given NCSHP
only seven hours on a Saturday afternoon to produce the results in question.
Moreover, there is no indication that counsel for the Plaintiff attempted to
consult with NCSHP regarding the motion to compel as required by Local
Rule 7.1(b) before filing the motion. See LCvR 7.1(b). Additionally, since the
filing of the motion to compel, NCSHP appears to have continued to attempt
to comply with the subpoena. See [Doc. 62-11]; see also [Doc. 87 at 5].
Accordingly, the Court concludes that the Plaintiff’s motion to compel
NCSHP was filed prematurely, unnecessarily, and without the consultation
required by the Local Rules. The Court will therefore deny the Plaintiff’s
motion to compel NCSHP.
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B. Motion to Compel Defendant Page
On April 30, 2026, the Plaintiff moved to compel Defendant Page “to
substantively respond to Plaintiff’s second set of interrogatories.”2 [Doc. 57
at 1]. Specifically, the Plaintiff has requested that Defendant Page provide
information regarding an incident in July 2017 when Defendant Page
allegedly pointed a loaded gun at a television, as well as information
regarding Defendant Page’s separation from employment as a part-time
deputy with the Polk County Sheriff’s Office in February 2013. [Doc. 57-2 at
4]. The Plaintiff contends that such information is relevant to whether
Defendant Page knew or should have known that failure to provide medical
aid to the Decedent posed an unjustifiably high risk of harm to the Decedent
because the information concerns Defendant Page’s competence, judgment,
and fitness to serve as a law enforcement officer. [Doc. 57-1 at 11-12]; see
also [Doc. 84 at 4-6].
The Defendant objected to the Plaintiff’s request on grounds that the
interrogatories are not relevant to the Plaintiff’s deliberate indifference claim.
[Doc. 57-2 at 4]. The Defendant contends that the interrogatories do not
2 The Plaintiff also takes issue with the lack of notarization on Defendant Page’s
responses to the Plaintiff’s interrogatories. [Doc. 57-1 at 14-15; Doc. 84 at 6-7]. In
compliance with 28 U.S.C. § 1746, however, Defendant Page verified his responses to
the Plaintiff’s interrogatories “under penalty of perjury.” [Doc. 57-2 at 6]. The Plaintiff’s
argument that the language of Defendant Page’s verification amounts to a significant
departure from the language of § 1746 is not well taken.
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implicate any of the elements of the Plaintiff’s deliberate indifference claim
and instead seek irrelevant information regarding events four and eight years
prior to the incident at issue in this matter. [Doc. 66 at 3-4].
The Court concludes that the events about which the Plaintiff seeks to
compel discovery are not relevant to the Plaintiff’s deliberate indifference
claim because such events have no bearing on whether the Defendant acted
or failed to act to appropriately address the Decedent’s medical needs, or on
whether the Defendant knew or should have known that the Decedent had a
medical need and that the Defendant’s action or inaction posed an
unjustifiably high risk of harm. See Short v. Hartman, 87 F.4th 593, 611 (4th
Cir. 2023) (stating the elements of a claim for deliberate indifference to a
medical need). The Court further concludes that the temporal distance of
the events about which the Plaintiff seeks to compel discovery from the
incident at issue also weighs against the relevance of the requested
information. Accordingly, the Court will deny the Plaintiff’s motion to compel
Defendant Page.
IV. CONCLUSION
The Plaintiff’s motions to compel reveal that the Plaintiff is seeking
expansive discovery for what is, at root, a narrow issue: namely, whether
Defendant Page was deliberately indifferent to the Decedent’s medical
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needs after the Decedent crashed into a tree. The Court will deny both
motions.
O R D E R
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Compel
Non-Party North Carolina State Highway Patrol to Comply with Subpoena
and for Fees [Doc. 46] is hereby DENIED.
IT IS FURTHER ORDERED that the Plaintiff’s Motion to Compel
Defendant to Answer Plaintiff’s Second Set of Interrogatories and for Fees
[Doc. 57] is hereby DENIED.
IT IS SO ORDERED. Signed: June 2, 2026
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