53 F.4th 1338
11th Cir.2022Background
- Plaintiff Larry Roy, an Alabama inmate, sued Wexford Health Sources (private prison medical contractor), Governor Kay Ivey, and ADOC Commissioner Jefferson Dunn under 42 U.S.C. § 1983 for alleged long delays in diagnosis and treatment of two hernias and post‑surgical complications.
- Roy filed a verified third amended complaint (sworn under penalty of perjury) and, opposing Wexford’s summary judgment motion, submitted eight inmate statements labeled as affidavits; only one (John Dejnozka’s) was dated, signed, and expressly made “under penalty of perjury.”
- The magistrate judge converted Wexford’s special report to a summary‑judgment motion and notified the parties that declarations under 28 U.S.C. § 1746 were acceptable.
- The district court declined to consider six unsworn inmate statements that failed to meet § 1746’s form requirements, granted summary judgment to Wexford (finding no policy/custom shown), and dismissed Ivey and Dunn for failure to plead supervisory liability.
- The Eleventh Circuit held only Dejnozka’s statement satisfied § 1746, and even with that statement (and Roy’s verified complaint) Roy produced no evidence of a widespread Wexford policy or a causal connection to the governor/commissioner; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of unsworn inmate statements under 28 U.S.C. § 1746 | Roy: inmate statements (labeled affidavits) should be considered; brief contains "penalty of perjury" language | Defs: most statements are unsworn and fail to satisfy § 1746 formalities | Only Dejnozka’s statement complied with § 1746; the other six were inadmissible at summary judgment |
| Roy’s own unsworn statement as summary‑judgment proof | Roy: his statement is part of his brief and the brief’s headings certify statements "under penalty of perjury" | Defs: Roy’s brief pages were unsigned and his statement didn’t adopt penalty language or certify truth | Roy’s unsworn statement did not comply with § 1746 and could not be considered; even if it did, it would not change the outcome |
| Municipal liability (Wexford) — policy or custom showing | Roy: repeated delays in his care show Wexford’s custom/policy of postponing treatment | Wexford: plaintiff offered only evidence about Roy’s own case, no proof of a longstanding/widespread practice | Single‑incident or evidence confined to Roy’s treatment insufficient to establish a policy/custom; summary judgment affirmed |
| Supervisory liability (Ivey & Dunn) | Roy: defendants knew or should have known of Wexford delays from records and policies | Defs: no personal involvement or causal link; allegations speculative and conclusory | Court dismissed claims for failure to plead personal participation or causal connection and for lack of widespread abuse notice |
Key Cases Cited
- Craig v. Floyd Cnty., 643 F.3d 1306 (11th Cir. 2011) (single‑incident evidence insufficient to establish municipal custom or policy)
- Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020) (municipal liability requires custom or policy that is the moving force behind the constitutional violation)
- Nissho‑Iwai Am. Corp. v. Kline, 845 F.2d 1300 (5th Cir. 1988) (unsworn affidavit not substantially complying with § 1746 must be disregarded as summary‑judgment proof)
- Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003) (unsworn statements are incompetent to raise fact issues at summary judgment)
- Goebert v. Lee Cnty., 510 F.3d 1312 (11th Cir. 2007) (elements of deliberate indifference claim)
- Adams v. Poag, 61 F.3d 1537 (11th Cir. 1995) (delay in treatment may constitute deliberate indifference if it results in unnecessary pain)
- Keith v. DeKalb Cnty., 749 F.3d 1034 (11th Cir. 2014) (supervisory liability requires personal participation or causal connection via notice of widespread abuse)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must plead facts plausibly showing defendant's individual wrongdoing)
- Moton v. Cowart, 631 F.3d 1337 (11th Cir. 2011) (standard of review for summary judgment)
- LeBoeuf, Lamb, Greene & MacRae v. Worsham, 185 F.3d 61 (2d Cir. 1999) (discussing substantial compliance with § 1746 language)