Aishly Foy v. Sheriff of Jefferson County, Alabama

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11302

Non-Argument Calendar

____________________

AISHLY FOY,

Plaintiff-Appellee,

versus

SHERIFF OF JEFFERSON COUNTY, ALABAMA,

ADAM ENNIS,

KATELYN PAYNE,

DAVID AGEE,

TERRY SCOTT,

Defendants-Appellants,

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2 Opinion of the Court 23-11302

NURSE FLETCHER, et al.,

Defendants.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:19-cv-01887-JHE

____________________

Before NEWSOM, GRANT, and HULL, Circuit Judges.

PER CURIAM:

Plaintiff Aishly Foy filed this action against officials at the

Jefferson County Jail alleging a variety of claims based on her

treatment at the jail after her arrest. A magistrate judge granted in

part and denied in part the defendants’ motion for summary

judgment based on qualified immunity. 1 Three defendants, Sheriff

Mark Pettway, Deputy Adam Ennis, and Deputy Katelyn Payne

(collectively, “defendants”), appeal that ruling. 2

1 The parties consented under 28 U.S.C. § 636(c) to have a magistrate judge

conduct all the proceedings of the case.

2 In a prior order, this Court (1) concluded that two defendants, Deputy David

Agee and Sergeant Terry Scott, prevailed in the district court and thus lacked

appellate standing and (2) dismissed those defendants from this appeal.

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On appeal, the defendants argue that the magistrate judge

erred by concluding that: (1) Deputies Ennis and Payne were not

entitled to qualified immunity as to Foy’s 42 U.S.C. § 1983 excessive

force claim and (2) Sheriff Pettway was not entitled to qualified

immunity as to Foy’s disability-related claims brought under

§ 1983, Title II of the Americans with Disabilities Act (“ADA”), and

Section 504 of the Rehabilitation Act.

After review, as to Foy’s excessive force claim, we affirm the

denial of summary judgment as to Deputies Ennis and Payne

because fact issues exist as to whether purely gratuitous and

retributive force was used against Foy after she was secured in a

holding cell (given Foy’s version of events in her deposition).

We also affirm the magistrate judge’s limited ruling that Foy

did not sue Sheriff Pettway individually but only in his official

capacity and thus the qualified immunity defense to individual

liability was inapplicable. The magistrate judge did not address the

summary judgment issues of whether Foy failed to show (or even

state) any viable disability-related claims, and we lack jurisdiction

to address them in this interlocutory appeal. On remand, the

magistrate judge shall address in the first instance whether Sheriff

Pettway was entitled to summary judgment as to Foy’s disability-

related claims against Sheriff Pettway in his official capacity based

on this evidentiary record.

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I. BACKGROUND

A. Foy’s Counseled First Amended Complaint

Foy was represented by counsel when she filed this action

and her first amended complaint. As discovery began, however,

Foy fired her counsel and asked to proceed pro se. Foy’s counsel

moved to withdraw. After a hearing, the magistrate judge granted

counsel’s motion to withdraw, and Foy proceeded pro se.

B. Defendants’ Motion for Summary Judgment

On December 22, 2021, the defendants took Foy’s

deposition.

On March 15, 2022, the defendants filed a joint motion for

summary judgment, arguing they were entitled to qualified

immunity from all of Foy’s federal claims. As to Foy’s excessive

force claim, the defendants’ motion argued Foy had not shown a

violation of her constitutional rights or that the right was clearly

established. As to Foy’s various disability-related claims, the

defendants’ motion argued that Foy had not shown a violation of

the ADA or the Rehabilitation Act and that Sheriff Pettway was

also entitled to qualified immunity.

To support their motion, the defendants filed Foy’s

deposition, in which she outlined her version of events. We

recount Foy’s testimony, which the magistrate judge properly

considered.

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C. Foy’s Deposition

In 2013, a psychiatrist diagnosed Foy with multiple

personality disorder, and she takes prescription medication for

anxiety and major depression. Shortly before her arrest, Foy was

discharged from a medical facility and prescribed Xanax to keep her

calm until she could get to another facility that could treat her

major psychological disorders. On the morning of her arrest, Foy

had the full Xanax prescription in her purse, but she had not yet

taken any medication because she was going to work.

After being booked into the jail, Foy met with nurse Gay to

discuss Foy’s medical conditions and why Foy had a prescription

bottle in her purse. Foy explained that she was just discharged by

a psychiatrist, who prescribed the Xanax for an untreated

psychological disorder.

As Foy spoke, nurse Gay muttered, “This black junkie.” Foy

admitted that she responded by grabbing nurse Gay, dragging her

out of the room, and hitting her. Two unidentified deputies

separated Foy from nurse Gay, placed her in a holding cell, and left.

The crux of this case involves what happened next in the

holding cell. About five minutes later, five white deputies (three

male and two female) and Sergeant Scott returned to the holding

cell. The first deputy to enter walked in and immediately grabbed

Foy’s braids and slammed her head against the wall. Foy “was out

of it” and slid down the wall to the floor, where the first deputy

kicked Foy in the face. The other deputies began to beat Foy, too,

and they called her a “black monkey, stupid black bitches,” and one

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said, “You put your hand on one of ours, we going to show you.”

Foy was knocked unconscious from the beating, had injuries all

over her body, and her eyes were swollen shut.

Importantly though, Foy denied, inter alia, kicking or hitting

any of the deputies during this time in the holding cell.

Foy testified that Deputy Payne (a defendant here) was one

of the female deputies who beat her. Foy said she did not know

Deputy Ennis (another defendant), but Foy was “positive” he was

one of the male deputies in the holding cell based on excessive force

statements the deputies gave after the incident (that defendants

produced in discovery).

Later, Foy was escorted to cell A7 in the disciplinary block.

There, Foy was stripped, put in “a crazy jacket,” and placed on

suicide watch. Foy does not recount any beating in cell A7.

However, Foy complains that she did not receive medical

treatment for several days. After Foy filed a grievance, Captain

David Agee “locked [Foy] down” by placing her “on Max 1,” which

caused her depression to kick in, and she “completely shut down”

and did not eat or drink. At that point, Foy could not make phone

calls or “touch the tablet” anymore. When Foy began vomiting

and her heart rate rose, a nurse called the “EMT” to “send her out”

to the hospital.

D. Defendants’ Affidavits

The defendants also filed sworn affidavits from Deputies

Payne and Ennis, who were assigned to the corrections division at

the jail. The deputies denied that they or any other deputies at the

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jail kicked, beat, or threatened Foy in the holding cell as she

claimed.

Deputy Payne averred that Foy kicked her during the

altercation, continued to fight the deputies as they escorted Foy to

the holding cell, and was not bleeding or unconscious in the

holding cell, that Payne brought a nurse to the holding cell to check

on Foy, and that Foy was not deprived of medical care. Deputy

Payne, however, does not deny entering and being present in the

holding cell.

Deputy Ennis averred that he was not one of the deputies

who escorted Foy to her cell (although which cell is not clear) and

that he was not present when Foy was stripped and placed in a

suicide vest (which would have been cell A7 in the disciplinary

block). Deputy Ennis, however, also does not specifically deny

entering or being present in the holding cell.

Sheriff Pettway averred that he: (1) had no personal

interactions with Foy; (2) did not witness any use of excessive force

or violations of any policies when the deputies intervened in the

altercation between Foy and nurse Gay; (3) did not refuse Foy food

or medical treatment; (4) did not violate any ADA policies, fail to

accommodate Foy, or discriminate against Foy because of her

disabilities; (5) did not witness or become aware of any ADA

violations by the deputies in their interactions with Foy; and (6) did

not fail to train, monitor, and discipline employees with regard to

their handling of inmates with disabilities.

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Foy, pro se, did not file a response to the defendants’ motion

for summary judgment.

E. Summary Judgment Order

On March 20, 2023, the magistrate judge entered an order

granting in part and denying in part the defendants’ summary

judgment motion. We review only the portions of that order

pertinent to Deputies Payne and Ennis and Sheriff Pettway, the

three appellants in this interlocutory appeal.

At the outset, the magistrate judge acknowledged that (1) he

could not grant the defendants’ motion merely because it was

unopposed, and (2) he was required to consider the motion on the

merits, review the evidence, and determine if the defendants had

met their summary judgment burden under Rule 56.

As to Foy’s excessive force claim (Count One), the

magistrate judge concluded that Deputies Payne and Ennis had

“not met their summary judgment burden.”3 The magistrate judge

observed that “Foy’s description of the encounter is sharply at

odds” with the deputies’ description. The magistrate judge

determined that “[v]iewed in the light most favorable to Foy, the

deputies reentered her holding cell to beat her in revenge for

3 Foy’s first amended complaint alleged her excessive force claims were

brought under the Fourth Amendment “as incorporated against the states by

the Fourteenth Amendment.” The magistrate judge found it unnecessary to

determine whether Foy’s claims were properly brought under the Fourth

Amendment or the Fourteenth Amendment because the same objective

standard of reasonableness applied to both types of excessive force claims.

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getting into a fight with Nurse Gay” and did not “provide any

explanation or justification for this use of force.”

The magistrate judge concluded each of the factors in

Graham v. Connor, 490 U.S. 386 (1989), weighed against the

reasonable use of force and that “there appears to have been no

need for the use of force at all.” The magistrate judge emphasized

that under Foy’s version of events: (1) Foy was separated from

nurse Gay and in the holding cell and thus did not pose an active

threat or security problem; (2) the deputies’ use of force inside the

holding cell “was gratuitous and retributive”; and (3) Foy was

bruised and knocked unconscious.

The magistrate judge noted that Deputies Payne and Ennis

did not “raise as a defense Foy’s inability to identify which officers

were responsible for which specific portion of the alleged beating.”

The magistrate judge pointed out, inter alia, that the deputies did

not deny being present in the holding cell with Foy.

As to qualified immunity, the magistrate judge concluded

Foy’s right to be free from excessive force in the holding cell was

clearly established, among other reasons, because the deputies’

alleged conduct—beating Foy for no law enforcement reason or

disciplinary purpose “but as payback”—was a constitutional

violation that “would have been obvious to a reasonable officer.”

The magistrate judge acknowledged that Foy had not

responded to the deputies’ summary judgment motion. But under

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Foy’s version of events in the evidentiary record, the deputies had

not carried their burden at summary judgment. 4

As for Foy’s disability claims against Sheriff Pettway (Counts

Three and Four), the magistrate judge stressed that Sheriff Pettway

was sued only in his official capacity and qualified immunity was not

a defense to official capacity claims under either the ADA or the

Rehabilitation Act. Additionally, the magistrate judge observed

that the summary judgment motion conflated “whether Foy has

established a constitutional violation based on denial of medical

care with (1) whether she has satisfied the standards of the ADA or

the Rehabilitation Act or (2) whether she has adequately supported

official capacity § 1983 claims based on the other purported

violations she alleges.” The magistrate judge found that neither of

these arguments entitled Pettway to summary judgment on

Counts Three and Four.

The defendants filed this interlocutory appeal challenging

the magistrate judge’s denial of qualified immunity as to Counts

One, Three, and Four.

4 In Count Two of her first amended complaint, Foy alleged conditions-of-

confinement claims against multiple defendants, including Deputies Payne

and Ennis. In a prior order, the magistrate judge dismissed these claims as to

Deputies Payne and Ennis because the summary judgment record did not

show that either deputy had an opportunity to intervene in any of the events

alleged in Count Two.

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II. STANDARD OF REVIEW

Ordinarily we do not have jurisdiction to review the denial

of a motion for summary judgment, but we have jurisdiction to

review the denial of qualified immunity under the collateral order

doctrine. Williams v. Aguirre, 965 F.3d 1147, 1156 (11th Cir. 2020).

In a prior order dated October 24, 2024, this Court determined that

we have jurisdiction to hear the defendants’ interlocutory appeal

pursuant to the collateral order doctrine. See Foy v. Sheriff of Jefferson

Cnty., Ala., No. 23-11302, 2024 WL 4564182, at *2 (11th Cir. Oct.

24, 2024) (unpublished).

We review de novo the denial of summary judgment based

on qualified immunity, “viewing the facts in the light most

favorable to the nonmovant.” Williams, 965 F.3d at 1156

(quotation marks omitted). Summary judgment is appropriate

when the movant shows “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

law.” Id.; see also Fed. R. Civ. P. 56(a).

III. DISCUSSION

A. Qualified Immunity

To be entitled to qualified immunity, the defendant must

first establish that he was acting within the scope of his

discretionary authority when the allegedly wrongful conduct

occurred. Christmas v. Harris Cnty., Ga., 51 F.4th 1348, 1354 (11th

Cir. 2022). If the defendant does so, “the burden shifts to the

plaintiff to show that qualified immunity is not appropriate.” Id.

To overcome the defendant’s defense of qualified immunity, the

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plaintiff must show both: (1) that the defendant violated a

constitutional right; and (2) that the right violated was clearly

established. Id.

B. Plaintiff’s Failure to Respond in the District Court

The two defendant deputies argue that the magistrate judge

erred in concluding they were not entitled to qualified immunity

on Foy’s excessive force claim because Foy had the burden to show

(1) a constitutional violation and (2) a clearly established right but

(3) Foy did not respond to their summary judgment motion.

“When a defendant has moved for summary judgment on

the basis of qualified immunity, the plaintiff may not rely on the

facts contained in the complaint, but must raise genuine issues of

material fact to counter the facts supporting a defendant’s

summary judgment motion.” Case v. Eslinger, 555 F.3d 1317, 1329

(11th Cir. 2009) (quotation marks omitted). When the plaintiff fails

to do so, the district court “may grant summary judgment only if

the motion and supporting materials—including the facts

considered undisputed . . . show that the movant is entitled to it.”

Fed. R. Civ. P. 56(e)(3).

“Thus, the district court cannot base the entry of summary

judgment on the mere fact that the motion was unopposed, but,

rather, must consider the merits of the motion.” United States v.

One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363

F.3d 1099, 1101 (11th Cir. 2004). In considering the merits, the

district court is not required to “sua sponte review all of the

evidentiary materials on file.” Id. But the district court must “[a]t

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the least . . . review all of the evidentiary materials submitted in

support of the motion for summary judgment” to “ensure that the

motion itself is supported by evidentiary material.” Id.; see also

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009)

(confining our review to the materials submitted by the defendants

in support of their unopposed motion for summary judgment to

determine whether those materials demonstrate the absence of a

genuine dispute of fact).

Here, the defendant deputies fail to recognize that the entry

of summary judgment cannot be based solely on the fact that their

motion was unopposed. See One Piece of Real Prop. Located at 5800

SW 74th Ave., 363 F.3d at 1101. The magistrate judge was obliged

to, and did, review the materials the defendants themselves

submitted with their summary judgment motion, including Foy’s

deposition, to determine whether those materials demonstrated

the absence of a genuine dispute of fact. See id.; Mann, 588 F.3d at

1303.

There is no factual dispute that Deputies Payne and Ennis

were acting within their discretionary authority as sheriff’s

deputies assigned to the jail. But, for summary judgment purposes

we must accept as true Foy’s version of events in her deposition

(even though contradicted by the defendants’ affidavits).

According to Foy’s testimony, five minutes after Foy was placed in

the holding cell and was no longer resisting, the deputies reentered

the holding cell and beat and kicked Foy to the point of

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unconsciousness in retaliation for her earlier attack on nurse Gay

in the nurse’s office.

This Court has long recognized that a jailer’s continued use

of force against a compliant or restrained inmate is constitutionally

excessive. See Piazza v. Jefferson Cnty., Ala., 923 F.3d 947, 953 (11th

Cir. 2019) (citing cases decided in 1987, 2005, and 2008). Moreover,

this legal principle applies with such “obvious clarity” here, where

the alleged force was gratuitous and malicious, such that no

reasonable officer in the deputies’ shoes could have believed the

force used was constitutionally permissible. See Taylor v. Riojas, 592

U.S. 7, 8-9 (2020); Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Accordingly, we find no error in the magistrate judge’s

denial of qualified immunity as to Foy’s excessive force claim

against Deputies Payne and Ennis at this summary judgment stage.

Nothing herein expresses any opinion on the ultimate merits of the

case. Our narrow ruling is that on the instant record, fact issues

exist precluding summary judgment for Deputies Payne and Ennis

at this juncture.

C. Disability Claims Against Sheriff Pettway

Counts Three and Four of Foy’s first amended complaint

asserted disability-related claims under § 1983, Title II of the ADA,

and Section 504 of the Rehabilitation Act against Sheriff Pettway,

but only in his official capacity. A few observations.

First, let’s clarify the types of claims against Sheriff Pettway.

Foy’s first amended complaint does not make any claims against

Sheriff Pettway (individually or in his official capacity) for

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constitutional violations or even for excessive force, for supervisor

liability for failure to train or supervise as to the use of force, or for

unlawful policies, customs, or practices as to the use of force.

Additionally, the magistrate judge’s order stated that Foy did not

have a viable medical care claim for various reasons and that “Foy’s

denial of medical care § 1983 claims against Sheriff Pettway in his

official capacity may not proceed.”

Thus, Foy’s only claims against Sheriff Pettway are all

disability-related claims for violations of the ADA and the

Rehabilitation Act and are made against Sheriff Pettway in only his

official capacity.

Second, Foy’s disability-related claims are contained in only

Count Three and Count Four (which is almost identical to Count

Three). Specifically, Foy’s claims in Counts Three and Four are as

follows: Sheriff Pettway is liable for his officers’ and employees’

violations of Title II of the ADA and Section 504 of the

Rehabilitation Act (1) in denying Foy benefits and services at the

jail, such as the commissary, church services, the grievance

process, and mental and physical healthcare, that nondisabled

inmates enjoyed; (2) in failing to reasonably accommodate her

mental health disabilities; and (3) in subjecting her to

discrimination on account of her disabilities, including by failing to

hold her safely and appropriately.

Foy’s § 1983 claim is also based on violations of the ADA and

Rehabilitation Act. Foy claims Sheriff Pettway in his official

capacity is liable for (1) failing to train, monitor, and discipline his

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officers and employees as to compliance with the ADA and the

Rehabilitation Act, (2) being deliberately indifferent to Foy’s rights

under those statutes, and (3) instituting a policy, custom, or

practice of not accommodating disabled inmates or providing them

appropriate treatment and thereby allowing violations of those

statutes to occur.

Sheriff Pettway’s summary judgment motion 5 argued, inter

alia, that as to the first prong of qualified immunity: (1) Foy did not

show a violation of either federal disability statute by Sheriff

Pettway’s officers and employees; (2) in any event, Sheriff Pettway

did not have supervisor liability for the conduct of his officers and

employees; and (3) Foy did not show a policy, custom, or practice

that resulted in violations of either disability statute. Citing

supporting affidavits, Sheriff Pettway contended, inter alia, that:

(1) Foy was appropriately classified, monitored, and disciplined for

her behavior while in custody; (2) a private contractor, Advanced

Correctional Healthcare, Inc., and not Sheriff Pettway, was

responsible for providing medical care, performing medical

screenings, and determining medical or mental health disabilities

within the jail; and (3) Foy failed to make any requests or file any

grievances for any injuries suffered between November 24, 2017

and November 30, 2017. Foy’s deposition focuses mainly on the

force used, not these claims.

5 Here we refer to the portion of the defendants’ joint motion for summary

judgment that addressed Foy’s claims against Sheriff Pettway.

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Nonetheless, the magistrate judge denied summary

judgment on Counts Three and Four solely on the basis that this

qualified immunity defense was inapplicable to Foy’s particular

official capacity claims against Sheriff Pettway. In this regard,

Sheriff Pettway has not shown the magistrate judge erred. A

defendant sued in his official capacity usually cannot assert an

individual capacity defense of qualified immunity. See Lassiter v.

Ala. A&M Univ., Bd. of Trs., 28 F.3d 1146, 1149 & n.2 (11th Cir. 1994)

(en banc); Bruce v. Beary, 498 F.3d 1232, 1248-49 n.33 (11th Cir.

2007). Foy’s counseled first amended complaint makes no

disability-related claims against Sheriff Pettway in his individual

capacity.

The magistrate judge, however, did not address Sheriff

Pettway’s underlying arguments that there was no evidence in the

summary judgment record (1) of a deputy’s or employee’s

violation of Foy’s statutory rights under either the ADA or the

Rehabilitation Act or (2) of a policy, custom, or practice of Sheriff

Pettway resulting in such a statutory violation, and (3) that Sheriff

Pettway could not be held liable under a theory of supervisor

liability. On remand, the magistrate judge should address these

issues as to Foy’s claims in Counts Three and Four against Sheriff

Pettway in his official capacity.

IV. CONCLUSION

For these reasons, the magistrate judge did not err in

denying the defendants’ motion for summary judgment as to Foy’s

excessive force claim in Count One against Deputies Payne and

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Ennis in their individual capacities and as to her disability-related

claims in Counts Three and Four against Sheriff Pettway in his

official capacity.6

AFFIRMED.

6 One final observation. The defendants’ notice of appeal was filed on April

19, 2023, and defendants filed their joint brief on June 29, 2023. Foy has not

filed a brief in this appeal.

The notice of appeal lists Foy’s address as “809 Richard Arrington Jr.

Blvd. N., Birmingham, Alabama 35203” and states this is the address Foy

provided in her “Motion to Stay Case and her Motion for Immediate Hearing,”

filed in the district court. That address is the Jefferson County Jail. Foy was

under a continuing obligation to notify this Court of any changes to her

address but has not done so. See 11th Cir. R. 25-7.

We do note that on August 7, 2024, the magistrate judge entered an

order stating Foy had called his chambers with a new address and directing his

clerk to update Foy’s address on the district court docket. We DIRECT the

Clerk’s Office of this Court to send a copy of this opinion to Foy at both the

address in the notice of appeal and the address newly added to the district

court docket. Foy herself, however, remains under the duty to notify this

Court of any change of address.