The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14588 JULY 20, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00614-CV-T-17MAP
PATRICIA LYNN FRY,
Plaintiff-Appellant,
versus
HILLSBOROUGH COUNTY SCHOOL BOARD, FLORIDA,
LIZETTE RAIG ALEXANDER,
JOYCE MILES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 20, 2006)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Patricia Lynn Fry appeals pro se the district court’s denials of her numerous
pleadings and its grant of summary judgment to the individual defendants named
in Fry’s complaint, Lizette Raig Alexander and Joyce Miles, employees of Fry’s
former employer, the School Board of Hillsborough County, Florida (the “Board”),
In her pro se civil rights action filed pursuant to 42 U.S.C. § 1983, Fry alleged
discrimination and retaliation based on the exercise of her First Amendment rights.
The district court concluded that Alexander and Miles were entitled to qualified
immunity. Concluding that there is no reversible error, we AFFIRM.
I. BACKGROUND
Fry, a school psychologist by occupation, filed a complaint on 3 April 2003
against the Board and Board employees Alexander and Miles, claiming
discrimination and retaliation under the Americans with Disabilities Act (“ADA”)
of 1990, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973 (“RA”), 29
U.S.C. § 791 et seq. Fry alleged, inter alia, that: (1) in June 2001, Alexander
reassigned her to Oak Park Elementary School (“Oak Park”); (2) Fry sent e-mails
to several individuals requesting additional Exceptional Student Education
(“ESE”) support for Oak Park; (3) after the e-mail communication, Fry was
reprimanded by Miles, the principal, for “telling Oak Park business”; and (4) on 20
March 2002, Fry was informed that her contract would not be renewed. R1-1 at 7,
2
12, 20. Fry further alleged that, throughout her employment with the Board, she
voiced her concerns that the Board was not complying with the procedural
requirements of the Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. § 1400 et seq., and the RA with regard to its students, but she was
instructed to ignore the problems. In her prayer for relief, Fry sought
reinstatement, compensatory damages, and injunctive relief that the defendants be
prohibited from violating her rights under the First Amendment.
The Board alone answered the complaint. The defendants simultaneously
filed a partial motion to dismiss the complaint, arguing, inter alia, that: (1) the
ADA and RA claims against Alexander and Miles in their individual capacities
should be dismissed; and (2) to the extent that Fry raised a First Amendment claim,
her complaint did not allege that she engaged in protected speech or otherwise was
subjected to an adverse employment action based on her engagement in protected
speech. Fry responded, clarifying, inter alia, that she was attempting to raise a
First Amendment claim. She alleged that the defendants retaliated against her by
transferring her to Oak Park for advocating for proper utilization of ESE resources
and for the rights of people with disabilities, which were matters of public concern
that were outweighed by the Board’s interest in preventing her speech.
Fry then filed a motion to disqualify the Board’s counsel, Thomas Gonzales,
3
based on: (1) a conflict of interest, as Fry had communicated with Gonzales prior
to her complaint being filed; (2) Gonzalez’s failure to communicate to Fry the
scope of his representation of the Board; (3) Gonzalez’s inappropriate behavior;
and (4) his potential to be a substantial witness in the case. During an evidentiary
hearing on the issue, Gonzalez testified that, in his earlier conversation with Fry, it
was clear that he and Fry were on opposite sides and that he never told Fry that he
represented her. Gonzales also stated that he did not expect to be a witness in the
case. The court denied the motion, noting that Fry’s belief that Gonzalez was an
integral part of the decision not to renew her contract was not enough, without
evidence to support it, to require him to withdraw.
On 3 July 2003, the district court dismissed Fry’s ADA and RA claims
against Alexander and Miles as individuals, but found that her complaint
sufficiently stated a First Amendment claim, ordering that the defendants had ten
days to answer the complaint. On 14 July 2003, the Board alone filed an amended
answer, but, on 24 July 2003, all three defendants filed a second amended answer,
noting that while it was unclear from the complaint whether Fry intended to assert
a First Amendment claim against Alexander and Miles as individuals, they were
responding to the complaint out of an abundance of caution, and raised the defense
of qualified immunity. On that same day, Fry filed a “Partial Motion for Default
4
Judgment Due to Defendants’ Failure to Comply with a Court Order,” explaining
that, on 23 July 2003, she learned that Alexander and Miles had not filed an answer
and called the defendants’ counsel, Thompson, Sizemore, & Gonzalez (“the
Firm”), which informed her, with “hostility and contempt,” that the district court’s
order did not require Alexander and Miles to respond. R2-24 at unnumbered 1, 4.
She argued that the court should award a default judgment in her favor due to
Alexander and Miles’s failure to answer her complaint and asked for sanctions
against the Firm for willful and negligent conduct. The district court summarily
denied the motion.
Fry also filed motions for a preliminary injunction and a temporary
restraining order (“TRO”), seeking to prevent the defendants from revoking her
group health benefits and reproducing confidential information, such as social
security numbers, found in Fry’s personnel files. After a hearing on the motions, at
which Fry explained her recent discovery that confidential records from Oak Park
had been subpoenaed in a different lawsuit against a school district in Georgia, a
magistrate judge recommended denying the motions, finding that they sought relief
for claims separate from those in this lawsuit. The district court then denied the
motions over Fry’s objections and denied Fry’s later motion to alter or amend the
order. Fry later filed an interlocutory appeal of the denial of her motions for a
5
preliminary injunction and TRO, which we dismissed for want of prosecution.
On 15 July 2004, Fry filed a motion to amend her complaint to include
additional facts that took place after March 2002, when she filed her original
charge with the Equal Employment Opportunity Commission (“EEOC”), and
attached (1) a copy of a second EEOC charge, dated 19 March 2004, alleging that
the Board retaliated against her by denying her COBRA health care benefits, and
(2) a right to sue letter. She claimed that the defendants retaliated against her,
because she was a litigant in another ADA and RA case in Georgia, by interfering
with her health benefits and placing confidential information about students and
staff in her personnel file without notice, in violation of state law. The district
court denied the motion, finding that, to the extent that Fry was alleging the same
claims as she made in her motions for a preliminary injunction and TRO, such
claims previously had been considered and denied, and, in any event, Fry had
failed to show that the new facts occurred after the filing of her original complaint,
and had failed to exhaust her administrative remedies, under the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., regarding
the denial of her health care benefits. Finally, the court determined that, to the
extent that Fry alleged claims on behalf of third parties, she lacked standing.
Fry also filed a motion for “discovery guidance,” and a hearing was held on
6
the motion. At the hearing, Fry explained that she was having trouble deposing
witnesses and that she was hindered by confidentiality issues from completing her
discovery process, since she wanted to discuss school records pertaining to certain
students. During the hearing, the magistrate judge explained the concept of
summary judgment to Fry, stating that “the basis for [Federal Rule of Civil
Procedure 56] is that if there are no disputed issues of fact and someone’s entitled
to judgment as a matter of law, they get it.” R7-115 at 27-28. The magistrate
judge denied Fry’s motion, except for her request to use confidential student
records during depositions. Fry then filed an emergency writ of mandamus, asking
the court to give her additional time for discovery, amend and/or clarify several of
its orders, clarify the status of her First Amendment claims, advise her whether she
had permission to file items under seal, and give her other guidance. The court
summarily denied the motion.
Following discovery, each defendant filed a motion for summary judgment.
In support of their motions, the defendants filed several depositions with attached
exhibits, affidavits, and case law. In her deposition, Fry testified that she had two
masters degrees in special education and educational psychology and was disabled.
She stated that Alexander hired her as a school psychologist for the 2000-2001
school year at Lopez Elementary School (“Lopez”) and that part of her job was to
7
perform evaluations and re-evaluations on students who were referred to her and to
participate in the pre-referral process. In April 2001, her immediate supervisor,
Michael Cummings, told her that he and Leila Leverett, Lopez’s principal, had
decided to explore other positions for her because Lopez was potentially in trouble
for procedural violations regarding the schools’s use of psychological services.
Fry explained that she had questioned why the school was allowing the
psychologists to evaluate the same children multiple times for their potential
placement in the gifted program. In response to her questions, Fry stated that she
was told to “lay low.” R. Exh. 1-124 (Fry Deposition), at 179. Fry further testified
that Leverett told her that she was being transferred because Fry had a personality
conflict with another Lopez employee, and, although she was a good psychologist,
Leverett did not have a choice.
Fry was later transferred to Oak Park. She testified that, on many occasions,
she spoke up about children whom she believed were being mistreated at Oak Park,
including one child whom Miles, Oak Park’s principal, left in a classroom for
mentally handicapped children, when she should have attempted to “mainstream”
the child. Id. at 321. According to Fry, she brought these issues to the attention of
Edward McDowell, who responded that the issues would be taken care of
immediately and asked her to tell him about any other issues that arose in the
8
future. Later, she learned that her comments were interpreted as “[Fry is] going to
get the school district sued,” and suspected that the loss of her job had to do with
her comments. Id. at 324. Fry stated that, during the 2001-2002 school year at
Oak Park, she completed over eighty-seven cases which required a “write-up,” as
well as “many” evaluations and testing of students. Id. at 329-31, 334. Fry denied
having conflicts with several employees. Finally, Fry stated that she received an
evaluation on 14 March 2002, advising her that, based on Miles’s observations of
Fry’s performance and feedback from Fry’s county-level supervisor, Miles was not
renominating Fry for the 2002-2003 school year.
As exhibits to Fry’s deposition, the defendants attached a copy of Fry’s
spring evaluation, dated 11 February 2002, in which Miles noted, inter alia, that
Fry needed improvement in using time efficiently, following standards of ethical
conduct, seeking and using collaborative consultation with colleagues and
administrators, and maintaining flexibility in performance of responsibilities; and
was unsatisfactory in working with a minimal amount of supervision,
demonstrating skills in mental health counseling, and speaking positively and
constructively with students. Also attached was a letter addressed to Fry from
Miles, dated 14 March 2002, summarizing the reasons for Fry’s spring evaluation,
including that: (1) Fry had an excessive number of late arrivals to school; (2) Fry’s
9
comments and actions indicated an unwillingness to respect and consider other
points of view; (3) on several occasions, Fry abandoned her responsibilities at Oak
Park; (4) Fry had made disparaging remarks about the student population that had
made Miles uncomfortable; and (5) Fry had not completed a reasonable number of
evaluations during the course of the year.
In her deposition, Alexander testified that she was employed by the Board as
a departmental supervisor for the school district’s psychology program. She stated
that Fry was moved to Oak Park because she was having inter-personal issues with
the staff at Lopez, and the staff essentially had threatened to quit if Fry returned.
Alexander’s decision to support Fry’s non-renomination at Oak Park was based on
many factors, including that Fry made the staff uncomfortable by referring to the
children as “ADD, crack babies and drug exposed” and a handicapped condition as
a “gimp.” R. Exh. 1-122 (Alexander Deposition) at 108-09. She noted that Fry
could not get along with others and required “an enormous amount of supervision,”
and that she had “never seen a situation that required that much administrative
support o[f] a psychologist.” Id. at 122-23. Alexander explained that, while there
is not a minimum number of evaluations required, a psychologist must address the
evaluation needs without the assistance of anyone else, but “[t]hat did not occur at
Oak Park.” Id. at 126.
10
Miles testified that she was the principal of Oak Park during the 2001-2002
school year. She explained that part of her decision not to renominate Fry was
based on Fry’s interpersonal skills. She stated that she met with Fry several times
to talk to her about working with the team and improving her case load and
interpersonal skills. Miles also testified that Fry came into work late eighteen
times without a doctor’s excuse, and that, during one meeting, Fry refused to test a
child, even though the rest of the team recommended that the child was ready for
testing. Additionally, according to Miles, when a parent disagreed with Fry’s
comments at a meeting, Fry left the room and “did not want to hear that parent’s
point of view.” R. Exh. 2-121 (Miles Deposition) at 200. Any time that Fry was
upset about something, Miles continued, Fry would drive to her supervisor’s office
to ask that she handle the situation. One time, according to Miles, Fry’s purse was
taken, and Fry called the children thieves and threatened to have them all arrested.
Miles further explained:
[W]henever there was a meeting and it didn’t seem to be going [Fry’s]
way . . . , either she would leave the meeting or hit on the desk or
curse me out for -- for a schedule, and I thought that was being
insubordinate. And when [Fry] was asked to do some testing, if it
wasn’t the . . . student that she wanted to do it, she would ignore the
request . . . .
Id. at 215-16. In her affidavit, Miles stated that she never reprimanded Fry for
sending an email regarding ESE services; that Fry had at least eighteen late arrivals
11
to school, and she could not excuse Fry’s repeated tardiness for reasons such as
traffic; that Fry’s assignment to Oak Park was not punitive; and that she did not
retaliate against Fry for exercising her First Amendment rights, but recommended
that Fry’s contract not be renewed for the reasons set forth in her performance
evaluation.
In support of her motion for summary judgment, Alexander argued that Fry
failed to prove a First Amendment violation because Fry did not speak on a matter
of public concern, her speech was not a substantial factor in her termination, and
her contract would have been terminated even in the absence of her allegedly
protected speech. Alexander also argued that she was entitled to qualified
immunity because Fry failed to prove that a constitutional violation had occurred,
and the law was not clear that Alexander would be subjected to liability for
retaliatory discharge, since she terminated Fry for performance issues. Miles filed
a nearly identical motion and memorandum.
Fry requested an enlargement of time to respond to the defendants’ motions,
indicating, inter alia, that she had completed numerous discovery tasks, including
taking ten depositions and making record requests, but needed more time to review
the defendant’s evidence and complete her own discovery. On 10 June 2005, the
district court granted the motion, ordering that Fry’s response be filed by 27 June
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2005.
On 27 June 2005, Fry filed an emergency motion for an additional
enlargement of time to respond, stating that her computer had crashed, which
caused her to lose numerous documents, but she had received the remaining
depositions and was ready to rescan her supporting documents and prepare her
responses. The district court granted the motion, ordering that Fry’s responses
were due by 5 July 2005, and that there would be no further extensions of time.
On 5 July 2005, Fry responded to the motions, citing to the legal standard
for summary judgment and arguing that the complaint, answers to the
interrogatories, depositions, affidavits, and numerous exhibits demonstrated that
Alexander and Miles had retaliated against her in violation of the First
Amendment. Specifically, she argued, inter alia, that, because Alexander’s and
Miles’s actions violated the “basic standard for public officials,” they were not
entitled to qualified immunity. Fry also filed a statement of material facts as to
which a genuine issue existed and submitted numerous documentary materials,
including depositions, exhibits, photographs, medical records, and copies of cases
that she believed were relevant.
In an order dated 19 July 2005, the district court found that Alexander and
Miles were entitled to qualified immunity and granted their motions for summary
13
judgment. First, the court found that, taking Fry’s allegations as true for the
purposes of summary judgment, the actions taken by Alexander and Miles could be
seen as a violation of Fry’s First Amendment rights. However, the court
determined that, because the defendants asserted an adequate lawful motive for
Fry’s discharge, namely, her job performance, a reasonable public official in their
positions could not have been certain that their actions were unlawful based on
clearly established law. The court found that, even assuming that the defendants
had a discriminatory motive for discharging Fry, they still were entitled to
qualified immunity because an adequate lawful motive also was present.
Fry filed an emergency motion, pursuant to Rule 59(e), to alter or amend the
district court’s order granting summary judgment as to Alexander and Miles,
arguing that the district court erred by focusing on the adverse action of her non-
renomination and failing to address all of the other adverse actions by the
defendants, noting that she had filed a supplemental EEOC charge in March 2004.
She complained that she was not aware that she was required to fully argue the
merits of her case at the summary judgment stage. She argued that, because the
record did not indisputably establish that there was a lawful motive for her non-
renomination, and there was a genuine issue of material fact as to whether her job
performance was lacking, the defendants were not entitled to qualified immunity.
14
The district court denied the motion, noting that it found nothing in the motion that
would require it to reverse its decision.
On appeal, Fry raises two issues: (1) whether the district court abused its
discretion by denying Fry’s numerous pro se pleadings, including her motions for a
default judgment and to alter or amend the summary judgment order; and (2)
whether the district court erred in granting summary judgment to Alexander and
Miles, based on their qualified immunity. Because we dismissed Fry’s appeal of
the district court’s grant of summary judgment to the Board for want of
prosecution, we do not address that issue.
II. DISCUSSION
A. The Denial of Fry’s Numerous Pro Se Pleadings
Fry argues that the district court abused its discretion by “routinely” denying
her motions for procedural clarifications, a default judgment, a preliminary
injunction, discovery guidance, a writ of mandamus, and to alter or amend its
summary judgment order, and by assuming that she knew what was being denied,
which, as a pro se party, she did not. She contends that the district court’s strict
compliance with procedural rules violated its duty to liberally construe her
pleadings.
We review most of the district court’s denials of Fry’s pretrial motions for
15
an abuse of discretion. See Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113,
1121 (11th Cir. 2004) (reviewing district court’s discovery rulings); Mitchell v.
Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002)
(reviewing denial of motion for a default judgment); Sierra Club v. Ga. Power Co.,
180 F.3d 1309, 1310 (11th Cir. 1999) (per curiam) (reviewing denial of a
preliminary injunction); Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir.
1999) (reviewing ruling on motion to amend a complaint); Dist. Lodge No. 166,
Intern. Ass’n of Machinists & Aerospace Workers, AFL-CIO v. TWA Servs., Inc.,
731 F.2d 711, 718 (11th Cir. 1984) (reviewing ruling on writ of mandamus);
Thomas v. Farmville Mfg. Co., 705 F.2d 1307, 1307 (11th Cir. 1983) (per curiam)
(reviewing ruling on Rule 59(e) motion to alter or amend judgment). Furthermore,
“district courts enjoy broad discretion in deciding how best to manage the cases
before them.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir.
1997). “Courts do and should show a leniency to pro se litigants not enjoyed by
those with the benefit of a legal education. Yet even in the case of pro se litigants
this leniency does not give a court license to serve as de facto counsel for a party.”
GJR Invs. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)
(citation omitted). “[O]nce a pro se . . . litigant is in court, [s]he is subject to the
relevant law and rules of court, including the Federal Rules of Civil Procedure.”
16
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Here, because Fry fails to
identify any specific error in the district court’s denials of her numerous motions,
and there is no evidence in the record that the district court’s management of its
docket was unfair to Fry, the district court did not abuse its discretion by denying
these pre-trial motions. For example, because Fry’s motion to alter or amend the
district court’s summary judgment order merely reargued her opposition to
summary judgment, and failed to identify any manifest errors of law or fact or
newly discovered evidence, the district court did not abuse its discretion by
denying the motion.
In addition, although a district court may enter default judgment against a
defendant who has failed to respond to a complaint against him, default judgments
should only be entered if exceptional circumstances exist that prejudice the
plaintiff. Mitchell, 294 F.3d at 1316-17; see Fed. R. Civ. P. 55(a), (b)(2).
Moreover, we have held that “[t]he only grounds for granting [a Rule 59(e)]
motion are newly-discovered [previously unavailable] evidence or manifest errors
of law or fact.” In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). Rule 59(e)
may not be used to relitigate a claim. Mincey v. Head, 206 F.3d 1106, 1137 n.69
(11th Cir. 2000). Because there is no evidence that Fry was prejudiced by the
ten-day delay in the defendants’ raising of the defense of qualified immunity, the
17
district court did not abuse its discretion by denying the motion.
Regarding Fry’s motion to disqualify counsel, “[w]e review the district
court’s findings of fact for clear error and carefully examine de novo the district
court’s application of ethical standards.” Bayshore Ford Truck Sales, Inc. v. Ford
Motor Co., 380 F.3d 1331, 1338 (11th Cir. 2004). Here, because there was no
evidence that Gonzalez previously represented Fry, such that he was operating
under a conflict of interest, or otherwise behaved inappropriately, and Fry points to
none, the district court properly denied her motion for disqualification of counsel.
B. Grant of Summary Judgment to Defendants
We review a district court’s grant of summary judgment de novo. Patrick v.
Floyd Med. Ctr, 201 F.3d 1313, 1315 (11th Cir. 2000). Federal Rule 56(c) states
that summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”
Regarding the district court’s grant of summary judgment to Alexander and
Miles, Fry raises three arguments. First, she argues that she did not receive actual
or constructive notice of her requirement to respond to the defendants’ summary
judgment motions. Second, she argues that, because the defendants waived the
18
defense of qualified immunity by failing to raise it until their untimely second
amended answer, the district court erred by determining that they were entitled to
qualified immunity. Third, Fry contends that, because there was an issue of
material fact as to whether the defendants had lawful reasons for deciding not to
renew her contract for another year, the district court erred by finding that they
were entitled to summary judgment, pointing out that she disputed Miles’s and
Alexander’s evaluations of Fry, and their reasons for not renewing her contract.
She argues that the district court erred by minimizing the circumstantial and direct
evidence of retaliation that she submitted. She contends that the district court erred
by essentially allowing the defendants to narrowly construe her complaint by
limiting her First Amendment claims to protected speech and ignoring her claim
that she engaged in protected activities, including her union activities.
1. Whether the Notice Requirement of Rule 56(c) Was Satisfied
“[A] court should be particularly careful to ensure proper notice to a pro se
litigant.” Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam).
We have held that Rule 56(c) “requires that summary judgment cannot be entered
against a party unless that person has been given express notice, ten days in
advance, of his rights under that rule and how he might best defend them.” Id. at
824. (quotations omitted). The notice requirement of Rule 56(c) requires, at a
19
minimum, “that an adverse party . . . be given express, ten-day notice of the
summary judgment rules, of his right to file affidavits or other material in
opposition to the motion, and of the consequences of default.” Id. at 825.
Here, even assuming that the district did not give Fry express notice, the
record conclusively establishes that, under the circumstances, it was reasonably
apparent to Fry that she was required to submit all of her evidence in opposition to
the motion. Moreover, after the defendants filed their summary judgment motions,
Fry received two unopposed extensions of time to prepare her submissions in
opposition to summary judgment. Additionally, her responses to these motions,
which included deposition testimony, affidavits, and documents produced during
discovery, specifically referenced the legal standard for summary judgment under
Rule 56 and demonstrate the Fry understood its requirements. Thus, any error by
the district court in failing to give Fry express notice of her rights and
responsibilities under Rule 56 was harmless. See Restigouche, Inc. v. Town of
Jupiter, 59 F.3d 1208, 1213 (11th Cir. 1995) (finding that failure to give notice
under Rule 56 was harmless error when appellant “ha[d] not been deprived of the
opportunity to present facts or arguments which would have precluded summary
judgment”); see also Sawyer v. Am. Fed’n of Gov’t Employees, AFL-CIO, 180
F.3d 31, 34-35 (2d Cir. 1999) (holding that notice is sufficient when the pro se
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party “responds to the summary judgment motion with factual and legal
submissions indicating that [s]he understood the nature and consequences of
summary judgment and the need to set forth all available evidence demonstrating a
genuine dispute over material facts” (quotations and citations omitted)).
2. Whether Defendants Raised Affirmative Defense of Qualified
Immunity
Qualified immunity is an affirmative defense to personal liability that the
defendant has the burden of pleading. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.
Ct. 1920, 1924 (1980). The failure to plead qualified immunity may result in a
waiver of the defense. See Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir. July
1981). However, we have held that “qualified immunity can be pled at various
stages in a case[, and] . . . may be generally asserted (1) on a pretrial motion to
dismiss under Rule 12(b)(6) for failure to state a claim; (2) as an affirmative
defense in the request for judgment on the pleadings pursuant to Rule 12(c); (3) on
a summary judgment motion pursuant to Rule 56(e); or (4) at trial.” Skrtich v.
Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002). We warned that “[t]he potential
for abusive delays or manipulative uses of qualified immunity claims is clear, as a
defendant can raise the defense at various stages of litigation . . . . Defendants who
abuse the pretrial process through such stalling, however, may waive their right to
21
raise the defense at the pretrial stage.” Id. (citation omitted).
Here, the defendants asserted the defense of qualified immunity in their
second amended answer, which was their first responsive pleading after their
motion to dismiss and which, although untimely by ten days, was accepted by the
court. There is no evidence that the defendants’ failure to timely respond to Fry’s
complaint was intentional, abusive, or prejudicial to Fry. Thus, the defendants did
not waive the defense.
3. Whether the District Court Erred in Granting Defendants’ Motions
for Summary Judgment on the Basis of Qualified Immunity
Qualified immunity provides complete protection for state officials sued in
their individual capacities unless they have “violated a clearly established statutory
or constitutional right[] of which a reasonable person would have known.”
Willingham v. Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003) (quotations
omitted). The Supreme Court has set forth a two-part test for evaluating a claim of
qualified immunity, with the threshold question being, “[t]aken in the light most
favorable to the party asserting the injury, do the facts alleged show [that the
official’s] conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156 (2001). If a constitutional right would have been
violated under the plaintiff's version of the facts, the court must then determine
22
“whether the right was clearly established.” Id. “For the law to be clearly
established to the point that qualified immunity does not apply, the law must have
earlier been developed in such concrete and factually defined context to make it
obvious to all reasonable government actors, in the defendant’s place, that what he
is doing violates federal law.” Riley v. Newton, 94 F.3d 632, 636 (11th Cir. 1996)
(quotations omitted).
We have held that:
when an adequate lawful motive is present, that a discriminatory
motive might also exist does not sweep qualified immunity from the
field even at the summary judgment stage. Unless it, as a legal matter,
is plain under the specific facts and circumstances of the case that the
defendant’s conduct -- despite his having adequate lawful reasons to
support the act -- was the result of his unlawful motive, the defendant
is entitled to immunity. Where the facts assumed for summary
judgment purposes in a case involving qualified immunity show
mixed motives (lawful and unlawful motivations) and pre-existing law
does not dictate that the merits of the case must be decided in
plaintiff’s favor, the defendant is entitled to immunity.
Foy v. Holston, 94 F.3d 1528, 1534-35 (11th Cir. 1996) (emphasis in original).
Thus, “[a] defendant is entitled to qualified immunity under the Foy rationale only
where, among other things, the record indisputably establishes that the defendant in
fact was motivated, at least in part, by lawful considerations.” Stanley v. City of
Dalton, Ga., 219 F.3d 1280, 1296 (11th Cir. 2000) (emphasis in original).
Here, even assuming, as the district court did, that Alexander and Miles’s
23
conduct violated Fry’s First Amendment rights, there is undisputed evidence in the
record that establishes that Alexander and Miles had lawful reasons for deciding
not to renew Fry’s employment contract, namely that the defendants were
motivated, at least in part, by Fry’s deficient work performance and interpersonal
behavior. Thus, the district court correctly determined that they were entitled to
qualified immunity.
III. CONCLUSION
In her appeal of her pro se civil rights action, Fry has failed to show that the
district court erred in denying her numerous pro se pleadings. She has also failed
to show that the district court erred in granting the defendants’ motions for
summary judgment. AFFIRMED.
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