Foy v. Pettway

1

AISHLY FOY, Plaintiff, v. MARK PETTWAY, et al., Defendants.

No. 2:19-cv-01887-JHE

United States District Court, N.D. Alabama, Southern Division

March 20, 2023

MEMORANDUM OPINION ^[1]

JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE

Through her First Amended Complaint (“FAC”), pro se Plaintiff Aishly Foy (“Foy”)^[2]brings this action under 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and Alabama common law against Defendants Mark Pettway, Adam Ennis Katelyn Payne, David Agee, Deputy Maddox, Deputy Simpson Terry Scott, Jane Doe, Mary Doe, Deputy McCants, Deputy T Russell, and Deputy Martin.^[3] (Doc. 24 at 1-3). Defendants Pettway, Ennis, Payne, Agee, and Scott (the “Moving Defendants”) have moved for summary judgment on all of Foy's remaining claims. (Docs. 124 & 125). Foy has not filed a response to the motion, nor have Defendants filed a reply in support. Nevertheless, for the reasons discussed below, Defendants' motion is GRANTED IN PART and DENIED IN PART.

I. Procedural History

Foy filed this action on November 20, 2019. (Doc. 1). At the time, Foy was represented by attorney Kira Fonteneau. Through Fonteneau, Foy filed the FAC on February 11, 2020. (Doc. 24).

On June 19, 2020, Fonteneau moved to withdraw as counsel after Foy “notified her Counsel that she wishes to represent herself.” (Doc. 46). The undersigned held a telephone conference on the motion on July 7, 2020, at which the undersigned discussed the ramifications of proceeding pro se with Foy. The same day, the undersigned granted Fonteneau's motion to withdraw and stayed the case for 30 days to permit Foy an opportunity to find new counsel. (Doc. 48).

The stay ultimately continued until November 4, 2020 (see doc. 53), after which date Foy proceeded pro se. The parties submitted a proposed amended scheduling order (doc. 54), which the undersigned entered (doc. 55). However, on January 22, 2021, Foy moved to amend the scheduling order and to stay the action. (Doc. 62). Specifically, Foy requested to modify the expired January 4, 2021 deadline for expert disclosure and to stay the action because criminal charges were pending against her. (Id.). On February 5, 2021, the undersigned denied the motion. (Doc. 66). As to amending the scheduling order, the undersigned noted many of Foy's problems had arisen because she voluntarily chose to proceed pro se, and Foy herself had proposed and agreed to a January 4, 2021 expert deadline. (Id. at 2-3). Additionally, the undersigned found Foy had not demonstrated diligence in pursuing discovery. (Id. at 3-4). As to the stay request, the undersigned observed that Foy had not provided any specific justification for why her Fifth Amendment rights would be implicated in this action. (Id. at 4-5).

After several extensions, the dispositive motion deadline passed on January 13, 2022. (See doc. 113). Other than Defendant Nurse Kyle, no defendant filed a dispositive motion by this deadline. The undersigned set a status conference to discuss next steps. (Doc. 117). Defendants immediately moved to extend the expired dispositive motion deadline. (Doc. 118). At the status conference, the undersigned provided Foy with an opportunity to oppose the motion for an extension of time and memorialized this on-the-record statement in an order. (Doc. 120). Although that order was sent to the address Foy provided the court (see, e.g., doc. 50), it was returned to the court as undeliverable on February 14, 2022. (Doc. 121). The undersigned's docket clerk attempted to contact Foy by phone to determine whether she needed to update her address, but Foy did not respond. The undersigned ultimately granted Defendants' motion and extended the dispositive motion deadline to March 15, 2022. (Doc. 123). The Moving Defendants filed their motion for summary judgment on that date. (Doc. 124).

On March 16, 2022, Foy called the undersigned's chambers to ask if the court had ruled on any pending motions. (See doc. 128). It became clear that the address and phone number on file for Foy were no longer correct. (See id.). The undersigned ordered the Clerk to update Foy's contact information, extended Foy's deadline to respond to the motion for summary judgment, and resent all relevant orders to Foy's updated address. (Id.). The undersigned further ordered Defendants to serve Foy with a copy of the motion for summary judgment at the updated address. (Id.). Foy has not responded to the motion for summary judgment, although she has contacted the court to report that she is again detained in the Jefferson County Jail and has filed several motions from jail.^[4] (See docs. 131 & 132).

II. Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party's favor when that party's version of the events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

III. Summary Judgment Facts^[5]

On November 24, 2017, Foy was arrested and booked into the Jefferson County Jail.^[6](Doc. 24 at 3, ¶ 15). When she arrived, she provided information to the classification officer about her physical and mental health conditions, including multiple personality disorder, anxiety disorder, and panic disorder. (Id. at 3-4, ¶¶ 16, 18).

After her initial classification, at around 4:03 p.m., Foy went into a small room with Nurse Cathy Gay (“Nurse Gay”). (Id. at 4, ¶ 21; Deposition of Aishley Foy (doc. 126-1, “Foy Depo.”) at 9 (28:14-23)). As Foy explained her conditions to Nurse Gay, Nurse Gay referred to Foy as “this black junkie.” (Foy Depo. at 10 (31:2-32:3)). Foy testified: “As soon as she said it, I turned, grabbed her, hit her, dragged her, pulled her out of the room. She -- Well, I did, like, rough her up like (indicating -- just like dragging her. I wasn't just like boom, boom, boom hitting her. I hit her that one time and then I jerked her real quick and I started pulling her out of the room backwards.”^[7](Id. (32:6-15)). Several deputies, including Deputies Martin, Wade, Katelyn Payne, Simpson,^[8]and Adam Ennis, separated Foy from Nurse Gay and placed Foy in a nearby holding cell. (Id. at 10-11 (32:23-33:9); doc. 24 at ¶¶ 23-24; doc. 73-1 at 2).^[9]

Foy testified that about five minutes later, five white officers-three males and two females-came back into the holding cell. (Foy Depo. at 12 (38:12-17)). The FAC identifies six officers who reentered the holding cell at this point: Deputies Payne, Ennis, Simpson, Maddox, Martin, and Wade. (Doc. 24 at ¶¶ 26-30). All of these officers are identified in the incident report. (Doc. 73-1 at 2). Foy testified that the female deputies were Deputies Payne and Simpson and that one of the male deputies was Deputy Ennis. (Foy Depo. at 13-14 (44:20-45:9)).

As soon as the first officer opened the door, he “took [Foy's] braids, and he slammed [her] head against the wall.” (Id. (37:18-21)). The officers stated: “black monkey, stupid black bitches.

You put your hand on one of ours, we going to show you.” (Id. (39:5-7)). Foy testified that the officers together “beat [her] in the holding cell.” (Id. at 11-12 (36:10-12, (38:15-17)). The same officer who slammed Foy's head against the wall also kicked her in the eye. (Id. at 12 (39:8-21)). Foy fell unconscious at various points during the beating.^[10] (Id. at 11 (34:3-5), 14 (46:14-15)). Foy testified she “had injuries all over her body” as a result of the beating, including two black eyes. (Id. at 22 (80:10-20)).

At some point, Foy was taken from the holding cell to Cell A7 on the jail's fifth floor, where she was stripped naked but for a “a little -- like a crazy jacket” and placed on suicide watch.^[11](Id. at 11 (35:8-13), 14 (46:...