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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14761
____________________
LARRY ROY,
Plaintiff-Appellant,
versus
KAY IVY,
JEFFERSON DUNN,
WEXFORD MEDICAL SERVICES,
Defendants-Appellees,
RUTH NAGLICH,
Defendant.
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2 Opinion of the Court 20-14761
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:18-cv-00459-CG-MU
____________________
Before LUCK, BRASHER, and HULL, Circuit Judges.
HULL, Circuit Judge:
Larry Roy, an Alabama prisoner, brought this 42 U.S.C.
§ 1983 action alleging long delays in his receipt of treatment for
hernias and for post-surgery complications. In his pro se third
amended complaint, Roy asserted claims for deliberate indifference
to his serious medical needs against: (1) Wexford Health Sources,
Inc. (“Wexford”),1 a private contractor that provides health care
services for Alabama inmates; (2) Kay Ivey, 2 the Governor of
Alabama; and (3) Jefferson Dunn, the Commissioner of the
Alabama Department of Corrections.
In response to Wexford’s summary judgment motion, Roy
submitted statements signed by himself and seven other inmates.
Although most of the statements were labeled as affidavits, only
1 Wexford’s name is listed as “Wexford Medical Services” in the case heading
because its name was misstated in the initial complaint.
2 Governor Ivey’s name is listed as “Ivy” in the case heading because her name
was misspelled in the initial complaint.
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20-14761 Opinion of the Court 3
inmate John Dejnozka indicated his statement was “true and
correct” and was made “under penalty of perjury.”
The district court (1) granted summary judgment in favor of
Wexford and (2) dismissed Roy’s complaint against Governor Ivey
and Commissioner Dunn for failure to state a claim.
After review and with the benefit of oral argument, we
conclude that only inmate Dejnozka’s statement satisfies the
requirements of 28 U.S.C. § 1746 and only that statement can be
considered at the summary judgment stage. Upon considering that
inmate statement, Roy’s verified complaint, and the record as a
whole, we conclude that the district court did not err in entering
judgment for the defendants.
I. BACKGROUND
A. Third Amended Complaint
In his verified third amended complaint, Roy asserted claims
for deliberate indifference to his serious medical needs, in violation
of his constitutional rights, against (1) Wexford, (2) Governor Ivey,
and (3) Commissioner Dunn.
Roy contended that Wexford had a policy, custom, and
pattern of delaying medical treatment following a doctor’s
diagnosis. Roy alleged that he was diagnosed with a hernia in 2014,
but because of a five-year delay in Wexford’s treatment of his initial
hernia, his condition worsened. A physician at Roy’s prison
examined Roy several times but elected to focus on treating Roy’s
failing prostate.
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In July 2018, a urologist examined a “large lump” on Roy’s
prostate surgery scar and diagnosed Roy with a second hernia. The
“large lump” later was diagnosed as a foreign object.
Roy eventually underwent surgeries to repair both hernias
and to remove the foreign object. Roy continued to suffer “severe
pain” as a result of those surgeries. Roy asserted that the long
delays between diagnosis and treatment “disrupted the healing of
both hernias.”
Roy also alleged that: (1) Governor Ivey, based on records
in her possession, knew or should have known that Wexford had a
pattern or practice of delaying treatment, putting inmates at risk of
more serious harm; and (2) an associate of Commissioner Dunn
had set a policy, custom, or practice that put Roy at greater risk of
harm by causing delays in his treatment and depriving him of
adequate medical care.
At the end of his third amended complaint, Roy signed this
affirmation: “By my signature below, I swear or affirm under
penalty of perjury that the facts set out in this complaint are true
and correct.” The complaint also contained a handwritten
“Notary” section, which read: “Before me, Plaintiff Roy asserts
under penalty of perjury that the statements made herein [sic] this
§ 1983 civil action are true and correct to the best of his
recollection.” Both Roy and a notary signed underneath this
statement.
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B. Wexford’s Motion for Summary Judgment
Defendant Wexford answered and submitted a “special
report,” in which it argued that it was entitled to judgment as a
matter of law. Wexford acknowledged that it was the functional
equivalent of a municipality because it performed a traditional state
function. Wexford, however, contended that Roy had not
presented evidence to show that it had a policy or custom that
contributed to the alleged delay or denial of his medical treatment.
A magistrate judge converted Wexford’s answer and special
report to a motion for summary judgment. The magistrate judge
gave the parties notice that they could file evidence in support of,
or in opposition to, the motion for summary judgment. The
magistrate judge explained that this evidence could include
“declarations (written statements of fact signed under penalty of
perjury under 28 U.S.C. § 1746).” The magistrate judge also
explained that summary judgment, if granted, would be a final
adjudication of this action.
C. Governor Ivey and Commissioner Dunn’s Motion to
Dismiss
Defendants Governor Ivey and Commissioner Dunn moved
to dismiss Roy’s complaint for failure to state a claim. They argued
Roy had not alleged: (1) that either of them had personal
involvement in his medical treatment; or (2) that a causal
connection existed between any specific policy that they had
implemented and his medical care.
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D. Roy’s Brief in Response
In June 2020, Roy filed a 61-page “Brief in Response to
Defendant’s Claim to Summary Judgment” (the “brief”). Roy’s
brief had a table of contents and included these documents as
exhibits: (1) his inmate request slips, sick call requests, and
grievances, which detailed his efforts to receive treatment for
various medical conditions; (2) responses from prison officials;
(3) his daily medical reports; and (4) a news article about a
Department of Justice report on unconstitutional conditions in
Alabama prisons.
Roy’s brief also included separate, signed statements from
Roy himself and seven other inmates. All of the inmate statements
were labeled “affidavits,” except for the statements of Nevis
Jennings, Jr. and Edward Pringle. For consistency, we refer to all
of them as statements. All of the statements were unsworn.
However, the statement that Roy obtained from inmate
Dejnozka indicated at the beginning that Dejnozka “testifie[d] and
assert[ed] under penalty of perjury, that his stated facts and
statements [we]re true and correct to the best of his recollection.”
Dejnozka dated and signed his statement. As explained later,
Dejnozka’s unsworn statement complies with § 1746 and may
substitute for a sworn affidavit at the summary judgment stage.
By contrast, in his own statement, Roy did not certify that
the content of his statement was true or correct or made under
penalty of perjury. Similarly, the texts of the other attached inmate
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statements contained no language confirming their statements
were true or correct or made under penalty of perjury.
At most, inmate Kevin Manning asserted in his statement
that he was “submit[ting] the following testimony.” Manning
styled his inmate statement as a court pleading by (1) listing the
district court at the top of the document and (2) including the terms
“v.” and “Civil Action No.”
Inmate Carl Salter’s statement indicated in the last
paragraph that it was “[d]one in good faith, with a justified concern
for Roy.” Inmate William Mason’s statement was signed, but not
dated.
We do recognize that Roy’s brief contained the “penalty of
perjury” language in two places. First, Roy’s table of contents had
an entry that reads:
2. AFFIDAVITS/DEPOSITIONS - under penalty of
perjury. (pages 4-19)
Second, the fifth page of Roy’s brief contained a heading 3 titled as
follows:
3 Although neither party’s brief addresses this heading, we consider it because
it contains “penalty of perjury” language that is similar to the language
appearing in the table of contents of Roy’s brief.
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AFFIDAVITS/DEPOSITIONS – under penalty of
perjury testifying concerning having personal
knowledge of facts in case:
Under that heading, Roy listed the names of all eight inmates who
gave statements, including his own name, followed by a dash (for
example, “Larry Roy-”). Nonetheless, neither Roy nor any of the
inmates signed either of those two pages from his brief.
Turning to the content of the inmate statements, we note
that Roy’s and Dejnozka’s statements allege only facts concerning
Roy’s own delays in receiving medical treatment. While Roy’s
statement was consistent with the allegations in his verified third
amended complaint, it contained more detail about his diagnoses
and the amount of time that passed between a diagnosis and
surgery. 4 In his statement, Roy contended that: (1) he had
struggled to get minimal adequate treatment after being diagnosed
with a hernia in 2014; (2) a nurse initially was unable to diagnose
Roy’s “large lump”; (3) in August 2018, a physician diagnosed the
“large lump,” which had burst, as an infection and “put Roy in for
surgery”; (4) in September 2018, a surgeon diagnosed the “large
lump” as a “foreign object”; and (5) in October 2018, Roy received
exploratory surgery to remove the foreign object.
4 Roy’s statement also included more detail about his allegedly inadequate
medical care that is not relevant to his claim that the defendants had a policy
or custom of long delays between diagnosis and treatment.
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In his own statement, Dejnozka wrote that: (1) he saw Roy
continually seek treatment from medical staff for pain caused by a
“large lump” on the right side of a surgical scar; and (2) he observed
Roy’s physical health deteriorate as a result of long delays between
diagnosis and treatment. 5
Because we later conclude that the district court properly
declined to consider the six other inmate statements, we do not
recount their contents.
E. Magistrate Judge’s Report and Recommendation
The magistrate judge issued a report and recommendation
(“R&R”), recommending that the district court grant Wexford’s
motion for summary judgment and Governor Ivey and
Commissioner Dunn’s motion to dismiss. As to Wexford, the
magistrate judge observed that Roy had provided only one sworn
statement and determined that Roy had provided an account of
5 In his statement, Dejnozka also asserted that a nurse practitioner at the
prison had told Roy that he was not in pain because he had walked to the
prison’s health care unit. Unlike the other facts alleged in his statement,
Dejnozka did not indicate that he personally observed the nurse practitioner
make this statement. The district court therefore could not consider it at the
summary judgment stage. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge . . . .”); Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)
(“[S]tatements in affidavits that are based, in part, upon information and belief,
cannot raise genuine issues of fact, and thus also cannot defeat a motion for
summary judgment.”).
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only a single incident, which was insufficient to establish that
Wexford had a policy or custom of constitutional violations.
As to Governor Ivey and Commissioner Dunn, the
magistrate judge determined that: (1) Roy had not alleged, nor
presented evidence, that these defendants were personally
involved in his medical treatment; and (2) Roy had failed to
establish either defendant’s supervisory liability, as he had not
shown a causal connection between these defendants and the harm
that he suffered. The magistrate judge’s report warned that if a
party did not object to the R&R within fourteen days, that party
would waive the right to challenge on appeal any unobjected-to
factual and legal conclusions.
F. Roy’s Objections
Roy filed timely objections to the R&R, contending that:
(1) he had alleged multiple instances where Wexford’s policy or
custom exacerbated his medical issues; and (2) the inmate
“[a]ffidavits” constituted evidence of a persistent or widespread
policy. Roy, however, did not challenge the magistrate judge’s
recommendation that his claims against Governor Ivey and
Commissioner Dunn be dismissed.
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G. District Court Order and the Appeal
The district court adopted the R&R and granted the
defendants’ motions. Roy appealed. 6 Following briefing by the
parties, we appointed appellate counsel for Roy. We separately
address the summary judgment granted to Wexford and then the
dismissal of defendants Governor Ivey and Commissioner Dunn.
II. WEXFORD
A. Standard of Review
We review de novo the district court’s grant of summary
judgment, viewing the record in the light most favorable to the
non-moving party. Moton v. Cowart, 631 F.3d 1337, 1341 (11th
Cir. 2011). A movant is entitled to summary judgment upon
showing that there are no genuine disputes of material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). We may affirm summary judgment on any ground
supported by the record. MidAmerica C2L Inc. v. Siemens Energy
Inc., 25 F.4th 1312, 1331 (11th Cir. 2022).
Because Roy proceeded pro se in the district court, we
liberally construe his pleadings. Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). Pro se litigants,
6 Although Roy’s initial complaint asserted a deliberate indifference claim
against Ruth Naglich, his third amended complaint did not raise any claims
against Naglich, who is not a party to this appeal.
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however, are required to conform to procedural rules. Albra v.
Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
B. Deliberate Indifference
Roy’s third amended complaint against Wexford contends
that Wexford had a custom or policy of delaying medical treatment
for inmates’ serious medical needs and such deliberate indifference
caused Roy’s injury and pain. We discuss the legal principles
applicable to deliberate indifference claims and then Roy’s
evidence.
To establish a deliberate indifference claim, a plaintiff must
show: (1) a serious medical need; (2) the defendant’s deliberate
indifference to that need; and (3) causation between the
defendant’s indifference and the plaintiff’s injury. Goebert v. Lee
Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). Delays in medical
treatment “that [are] tantamount to unnecessary and wanton
infliction of pain[] may constitute deliberate indifference.” Adams
v. Poag, 61 F.3d 1537, 1544 (11th Cir. 1995) (quotation marks
omitted).
A private entity, like Wexford, that contracts to provide
medical services to inmates performs traditional state functions
and, therefore, is treated as a municipality for purposes of § 1983
claims. Craig v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011).
“[Section] 1983 does not provide for liability under a theory of
respondeat superior . . . .” Richardson v. Johnson, 598 F.3d 734,
738 (11th Cir. 2010). A municipality, however, may be held liable
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under § 1983 if its policy or custom causes the plaintiff’s
injury. Swain v. Junior, 958 F.3d 1081, 1091 (11th Cir. 2020).
In the absence of an official policy endorsing a constitutional
violation, a plaintiff must show: (1) that the municipality had a
custom or practice of permitting such a violation; and (2) that this
custom or practice was the “moving force” behind the violation.
Craig, 643 F.3d at 1310 (quotation marks omitted). Proof of a single
incident of an unconstitutional activity is insufficient to show a
custom, which must be such “a longstanding and widespread
practice that it is deemed authorized by the policymaking officials
because they must have known about it but failed to stop it.” Id.
(alteration and quotation marks omitted).
C. Requirements for Unsworn Declarations under Section 1746
To show Wexford’s policy or custom of delays, Roy
submitted: (1) Roy’s, Dejnozka’s, and four other inmates’
statements about Roy’s own delays in receiving medical treatment
and (2) statements from two other inmates (Jennings and Pringle)
about their own delays in receiving medical treatment. Although
some statements were labeled “affidavits,” the statements Roy
submitted were all unsworn statements. As explained below, all of
the unsworn statements, except for Dejnozka’s, did not comply
with the requirements of 28 U.S.C. § 1746, and thus those unsworn
statements could not be considered by the district court.
At the summary judgment stage, parties may submit
traditional affidavits sworn under oath before a notary (or another
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oath-taker) affixed with the notary seal. Affidavits must: (1) be
made on personal knowledge, (2) set forth facts that would be
admissible in evidence, and (3) show that the affiant is competent
to testify on the relevant matter. Fed. R. Civ. P. 56(c)(4). Unsworn
statements may not be considered by a district court in evaluating
a motion for summary judgment. Carr v. Tatangelo, 338 F.3d
1259, 1273 n.26 (11th Cir. 2003). An unsworn statement is
incompetent to raise a fact issue precluding summary judgment.
See id.; United States ex rel. Doe v. Heart Sol., PC, 923 F.3d 308,
315–16 (3d Cir. 2019) (concluding that an unsworn statement that
was not given under the penalty of perjury was “incompetent
summary judgment evidence”).
A statutory exception to this rule exists under 28 U.S.C.
§ 1746, which permits unsworn declarations to substitute for a
sworn affidavit or sworn declaration for purposes of summary
judgment if certain statutory requirements are met. See 28 U.S.C.
§ 1746; see also Fed. R. Civ. P. 56(c) advisory committee’s note to
2010 amendment (“28 U.S.C. § 1746 allows a written unsworn
declaration, certificate, verification, or statement subscribed in
proper form as true under penalty of perjury to substitute for an
affidavit.”). Specifically, under § 1746, a declaration executed
within the United States will substitute for a sworn affidavit if the
declarant dates and subscribes the document as true under penalty
of perjury in substantially the following form: “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true
and correct. Executed on (date). (Signature).” 28 U.S.C. § 1746(2).
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In short, § 1746 has these statutory requirements for an
unsworn statement to substitute for a sworn affidavit: The
declarant must (1) date and sign the document, and (2) subscribe
its content as “true,” (3) under “penalty of perjury,” (4) in
substantially the above-quoted pattern language. Id.
The parties agree that Dejnozka’s unsworn statement
complied with the requirements of § 1746. His statement was
signed, dated, and subscribed as true and correct under penalty of
perjury. See id. § 1746. We thus turn our focus to the six other
inmate statements and then to Roy’s own statement
D. Six Other Inmate Statements
The six other unsworn inmate statements, submitted by
Roy, did not satisfy the § 1746 requirements. None of the
statements contained any language declaring the statements were
true or that they were made under penalty of perjury. Because the
six other inmate statements did not satisfy § 1746, the district court
properly declined to consider them for purposes of summary
judgment.
To avoid this result, Roy argues that, inter alia, we should
liberally construe these six inmate statements because: (1) the
inmates may not have had knowledge of or access to the pattern
language in § 1746, and (2) the statements were signed when his
prison was closed due to the COVID-19 pandemic.
First, we decline Roy’s invitation to “liberally construe” the
six other inmate statements as satisfying § 1746 because there is no
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language in them for us to liberally construe as substantially
complying with the pattern language in § 1746. None of the
statements referred to “penalty of perjury” or were certified as true.
For instance, inmate Manning asserted within his statement
that he was “submit[ting] the following testimony” and styled his
statement as a court pleading, while inmate Salter acknowledged
that his statement was made “in good faith.” This language does
not come close to substantially complying with the requirements
or pattern language of § 1746.
Second, we recognize that Roy’s brief refers to “penalty of
perjury” in two places: (1) in the table of contents; and (2) on page
five in the heading: “AFFIDAVITS/DEPOSITIONS – under
penalty of perjury[.]” This language in Roy’s brief, however, did
not cure the defects in the six inmate statements. The record
contains no evidence that the inmates adopted (or even saw for
that matter) this “penalty of perjury” language in Roy’s brief.
Further, no inmate signed either of these two pages in Roy’s brief.
There is another, independent reason the inmates’ unsworn
statements do not comply with § 1746. The “penalty of perjury”
language contained within Roy’s brief, but not within the
individual inmates’ own unsworn statements, would not make any
of the six inmates subject to a perjury charge for making a false
declaration in their separately attached statements. See Dickinson
v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. Unit B 1980) (“One
who subscribes to a false statement under penalty of perjury
pursuant to section 1746 may be charged with perjury under [18
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U.S.C. § 1621], just as if the statement were made under oath.”);
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1305–06 (5th Cir.
1988) (declining to consider a self-described affidavit that was not
declared to be true and correct or made under penalty of perjury
when “it allow[ed] the affiant to circumvent the penalties for
perjury in signing onto intentional falsehoods”).
Third, and in any event, Roy’s arguments about inmate
access fail because the key is what Roy knew as he procured the
statements from the other inmates, not what the other inmates
knew. Here, the magistrate judge informed Roy that he could
submit “declarations (written statements of fact signed under
penalty of perjury under 28 U.S.C. § 1746).” The unsworn
statement Roy obtained from Dejnozka conformed to the § 1746
requirements, despite the challenges presented by the pandemic.
Even before the magistrate judge’s notice, Roy’s own complaint
affirmed that the facts set out in his complaint were true and
correct under penalty of perjury.
For these reasons, the district court correctly did not
consider the six unsworn inmate statements at the summary
judgment stage. 7 See Carr, 338 F.3d at 1273 n.26.
7 Inmate Mason’s unsworn statement does not satisfy § 1746 for the additional
reason that it was not dated. See 28 U.S.C. § 1746.
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E. Roy’s Statement
Roy’s own unsworn statement arguably presents a closer
question. We previously have not addressed whether an unsworn
statement complied with § 1746 when: (1) the statement was not
subscribed as true or correct under penalty of perjury by a
declarant-plaintiff, but (2) the statement was attached as an exhibit
to and part of a declarant-plaintiff’s 61-page brief that contained
“penalty of perjury” language on two pages—in the table of
contents and in the heading described above. Roy argues that his
unsworn statement satisfied the standards of § 1746 because: (1) he
was the author of the summary judgment brief and his unsworn
statement, and (2) he stated in the brief’s table of contents that the
inmate statements were made “under penalty of perjury.” We
disagree.
First, Roy did not sign and date the pages of his brief that
contain the “penalty of perjury” language. That alone leads us to
conclude that his unsworn statement did not comply with § 1746.
Second, Roy’s unsworn statement did not adopt or
otherwise reference the “penalty of perjury” language in his brief.
As discussed above, this unsigned “penalty of perjury” language in
his brief—in the table of contents and a heading—would not make
Roy subject to a perjury charge for intentional falsehoods in his
statement. Rather, if accepted as sworn evidence here, Roy’s
statement would allow him to circumvent perjury penalties.
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Third, neither Roy’s statement nor his brief contained a
certification that his statement (“the foregoing”) was true and
correct. As observed earlier, Roy was aware of § 1746’s
requirements, but he did not comply with the penalty of perjury
requirement or certify that his statement was true. 8
As the defendants rightly point out, the Fifth Circuit’s
decision in Nissho-Iwai American Corp. v. Kline provides sound
guidance here. In that case, the unsworn affidavit was neither
certified as true and correct nor made under penalty of perjury. 845
F.2d at 1305–06. The Fifth Circuit concluded that the unsworn
affidavit did not substantially conform to the pattern language in
§ 1746. Id. at 1306. The court observed that the affidavit, as
drafted, “allow[ed] the affiant to circumvent the penalties for
perjury in signing onto intentional falsehoods.” Id. (“Kline never
8 Before concluding, we recite language on page thirty of Roy’s brief that no
party pointed out or argued about. Roy’s brief included handwritten
“Statement of Facts” and “Argument” sections, which immediately follow the
last inmate statement. Roy ended the “Argument” section of his brief with
this sentence: “Therefore, WEXFORD’s Answer of denial is contradicted to
[sic] the record, and Plaintiff’s facts and allegations are to be taken as being
‘true.’” Roy signed that page.
For completeness, however, we note this “true” language in the
“Argument” section on page thirty of Roy’s brief also would not subject Roy
to a perjury charge, given that: (1) it contains no reference to his unsworn
statement; (2) his unsworn statement itself contains no “true” language or
reference to page thirty of the brief; and (3) this sentence on page thirty clearly
is a closing argument in the brief and not a certification or verification of the
accuracy of the content of Roy’s statement.
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declared her statement to be true and correct; therefore, her
affidavit must be disregarded as summary judgment proof.”).9
The Fifth Circuit’s reasoning in Nissho-Iwai American Corp.
is equally applicable here. Like the affidavit in that case, Roy’s
unsworn statement did not include any “penalty of perjury”
language, nor did it contain a certification that his statement (“the
foregoing”) was “true and correct.” Roy’s unsworn statement, as
drafted, would allow him “to circumvent the penalties for perjury
in signing onto intentional falsehoods.” See id. at 1306; Dickinson,
626 F.2d at 1185–86 (concluding that a prisoner who signed a
9 Although the parties do not cite it, we have located a Second Circuit case
that warrants discussion. In LeBoeuf, Lamb, Greene & MacRae, L.L.P. v.
Worsham, an unsworn letter was signed with the statement, “[u]nder penalty
of perjury, I make the statements contained herein,” but it did not state the
contents were true and correct. 185 F.3d 61, 65–66 (2d Cir. 1999). The Second
Circuit concluded the letter substantially complied with the § 1746
requirements. Id. (“Although the letter does not contain the exact language
of Section 1746 nor state that the contents are ‘true and correct,’ it
substantially complies with these statutory requirements, which is all that this
Section requires.”).
Worsham is inapposite here. Unlike the unsworn letter in that case,
Roy’s unsworn statement did not comply with two § 1746 requirements: (1) it
was not made under penalty of perjury; and (2) it did not declare (or certify,
verify, or state) that its contents were true or correct. Thus, we have no
occasion to address the narrow issue in Worsham. See also Nguhlefeh Njilefac
v. Garland, 992 F.3d 362, 365 n.4 (5th Cir. 2021) (“[O]ur circuit does not appear
to have addressed . . . whether a ‘declaration’ passes muster if . . . it was made
‘under penalty of perjury’ but does not represent that its contents are ‘true and
correct,’ thereby failing to comply with the full text of § 1746.”).
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20-14761 Opinion of the Court 21
habeas corpus petition that complied with § 1746 “may be charged
with perjury under [18 U.S.C. § 1621], just as if the statement were
made under oath”). Therefore, Roy’s unsworn statement “must
be disregarded as summary judgment proof.” See Nissho-Iwai Am.
Corp., 845 F.2d at 1306.
Under the totality of the facts here, we conclude that Roy’s
unsworn statement does not comply with § 1746 and the district
court correctly did not consider Roy’s unsworn statement, even
though he labeled it as an “affidavit.”
Further, as an independent, alternative conclusion, even if
we assume arguendo that Roy’s unsworn statement complied with
§ 1746 and constituted evidence at the summary judgment stage,
that evidence would not change any result here as outlined below.
F. Evidence of Wexford’s Policy or Custom
Without these inmate statements, Roy’s “proof of a policy
or custom rests entirely on a single incident of alleged
unconstitutional activity.” Craig, 643 F.3d at 1311. He produced
no evidence that Wexford had a policy or custom of constitutional
violations “so persistent and widespread as to be deemed
authorized by the policymaking officials because they must have
known about it but failed to stop it.” Id. at 1312 (quotation marks
omitted).
To the extent that Roy contends he can show an
unconstitutional custom or practice by Wexford based solely on
the multiple delays that he experienced, this contention is
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22 Opinion of the Court 20-14761
meritless. In Craig, this Court concluded that a prisoner could not
establish that a private health care provider had an unconstitutional
policy or custom when he “did not even present evidence that
these practices had been employed by [the provider] for any other
detainees.” Id. at 1311. Without evidence demonstrating that
other inmates were injured by Wexford’s allegedly
unconstitutional custom or practice, Roy cannot show that this
custom or practice was “so widespread as to have the force of law.”
Id. at 1312 (quotation marks omitted). And even if Roy’s statement
satisfied § 1746, he still could not prevail on his deliberate
indifference claim against Wexford because his inmate statement
only addressed the medical delays that Roy himself experienced.
We also reject Roy’s argument that the district court failed
to address facts that would have precluded summary judgment.
Roy’s evidence related to only his own medical conditions and the
delays that he experienced in receiving treatment for his own
medical issues. Because Roy did not present evidence of another
instance where Wexford’s alleged policy or custom of delaying
medical treatment exacerbated an inmate’s medical condition, he
failed to establish that Wexford was liable under § 1983. See Swain,
958 F.3d at 1091. Thus, we affirm the district court’s grant of
summary judgment in favor of Wexford.
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20-14761 Opinion of the Court 23
III. GOVERNOR IVEY AND COMMISSIONER DUNN
A. Standard of Review
We review de novo a district court’s grant of a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. Hopper v. Solvay Pharms., Inc., 588 F.3d
1318, 1324 (11th Cir. 2009). To survive a Rule 12(b)(6) motion to
dismiss, a complaint must allege sufficient facts to state a claim that
is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 1949 (2009). “[C]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will
not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297
F.3d 1182, 1188 (11th Cir. 2002).
Under our Rule 3-1, a plaintiff who fails to object to a factual
or legal conclusion in a magistrate judge’s R&R after being
informed of the time period for objections and the consequences
of not objecting waives his right to challenge the unobjected-to
determination on appeal. 11th Cir. R. 3-1. In the absence of a
proper objection, however, this Court may review the issue in this
civil appeal “for plain error if necessary in the interests of justice.”
Id. Once we determine that reviewing an unobjected-to error in
an R&R is necessary in the interests of justice, then we apply the
heightened civil plain error standard. “Under the civil plain error
standard, ‘we will consider an issue not raised in the district court
if it involves a pure question of law, and if refusal to consider it
would result in a miscarriage of justice.’” Burch v. P.J. Cheese, Inc.,
861 F.3d 1338, 1352 (11th Cir. 2017) (quoting Roofing & Sheet
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24 Opinion of the Court 20-14761
Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 990
(11th Cir. 1982)).
B. Supervisory Liability under Section 1983
Similar to municipalities, supervisory officials are not liable
under § 1983 for the unconstitutional acts of their subordinates
based on a theory of respondeat superior or vicarious liability.
Keith v. DeKalb Cnty., 749 F.3d 1034, 1047 (11th Cir. 2014). Rather,
to hold a supervisor liable under § 1983, the plaintiff must show:
(1) that the supervisor personally participated in the alleged
unconstitutional conduct; or (2) there was a causal connection
between the actions of a supervising official and the alleged
constitutional deprivation. Id. at 1047–48. This Court has
explained that:
The necessary causal connection can be established
when a history of widespread abuse puts the
responsible supervisor on notice of the need to
correct the alleged deprivation, and he fails to do so.
Alternatively, the causal connection may be
established when a supervisor’s custom or policy
results in deliberate indifference to constitutional
rights or when facts support an inference that the
supervisor directed the subordinates to act unlawfully
or knew that the subordinates would act unlawfully
and failed to stop them from doing so.
Id. at 1048 (cleaned up). “The deprivations that constitute
widespread abuse . . . must be obvious, flagrant, rampant and of
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20-14761 Opinion of the Court 25
continued duration, rather than isolated occurrences.” Id.
(quotation marks omitted).
C. Analysis
As an initial matter, although the R&R sufficiently informed
Roy of the time period for objecting and the consequences for
failing to object, he did not challenge the magistrate judge’s
recommendation that his claims against Governor Ivey and
Commissioner Roy be dismissed. Accordingly, we may review
Roy’s argument that the district court erred by dismissing these
claims for plain error only. See 11th Cir. R. 3-1.
In any event, the district court did not err, plainly or
otherwise, in dismissing Roy’s claims against these defendants.
Roy did not allege that Governor Ivey or Commissioner Dunn
personally participated in his alleged constitutional deprivations.
He also did not plead specific facts that showed a causal connection
between these defendants and the harm that he suffered. See Iqbal,
556 U.S. at 678, 129 S. Ct. at 1949; Jaharis, 297 F.3d at 1188. Roy’s
allegation that Governor Ivey had knowledge of his constitutional
deprivations based on records in her possession was too speculative
to establish that she had notice of “widespread abuse.” See Keith,
749 F.3d at 1047–48.
Further, while Roy asserted that the defendants had a
custom or policy of delaying medical treatment to inmates, he only
alleged isolated incidents of unconstitutional misconduct, not “a
persistent and wide-spread practice.” McDowell v. Brown, 392 F.3d
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26 Opinion of the Court 20-14761
1283, 1290 (11th Cir. 2004) (quotation marks omitted). Because
Roy failed to allege that Governor Ivey and Commissioner Dunn
had a policy, custom, or practice of delaying medical treatment to
inmates, the district court properly dismissed his claims against
these defendants.
IV. OTHER ISSUES
Liberally construed, Roy’s appellate brief also argues: (1) the
district court failed to address the merits of his initial complaint;
(2) he still can obtain a default judgment against the defendants;
(3) the district court failed to address two motions that he filed; and
(4) the district court failed to address his arguments and supporting
evidence regarding the overcrowding of his prison and the failure
of prison officials to protect inmates from violence and sexual
assault. All of these arguments lack merit.
First, the district court was under no obligation to consider
the merits of the initial complaint, which was superseded by Roy’s
third amended complaint. See Varnes v. Local 91, Glass Bottle
Blowers Ass’n, 674 F.2d 1365, 1370 n.6 (11th Cir. 1982) (stating that
an amended complaint supersedes and replaces the original
complaint unless the amended complaint specifically refers to or
adopts the earlier pleading).
Second, Roy could not obtain default judgment once the
defendants responded to his complaint. See Fed. R. Civ. P. 55(b)
(stating that, upon a plaintiff’s request, the clerk must enter a
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20-14761 Opinion of the Court 27
default judgment “against a defendant who has been defaulted for
not appearing”).
Third, Roy did not raise any supporting arguments
explaining why the district court erred in failing to address two of
his motions (nor did Roy even identify the motions that the court
did not resolve). He thus has abandoned this argument on appeal.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014) (“We have long held that an appellant abandons a claim
when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and
authority.”).
Fourth, because Roy only raised deliberate indifference
claims in his third amended complaint, we need not address his
overcrowding and failure-to-protect arguments. See Miller v. King,
449 F.3d 1149, 1150 n.1 (11th Cir. 2006) (holding that, because the
pro se plaintiff failed to raise a claim in the district court, we would
not consider the claim for the first time on appeal).
V. CONCLUSION
In sum, we affirm (1) the district court’s grant of summary
judgment in favor of Wexford on Roy’s deliberate indifference
claim, and (2) the district court’s dismissal of Roy’s deliberate
indifference claims against Governor Ivey and Commissioner
Dunn.
AFFIRMED.