Frederick Henry v. Okeechobee County Sheriff's Office ( 2023 )

USCA11 Case: 21-12520 Document: 36-1 Date Filed: 01/18/2023 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12520
Non-Argument Calendar
____________________
FREDERICK HENRY,
Plaintiff-Appellant,
versus
OKEECHOBEE COUNTY SHERIFF'S
OFFICE,
a Florida Governmental Entity,
SHERIFF OF OKEECHOBEE COUNTY,
in his official capacity,
BRANDON WILSON,
Defendants-Appellees.
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2 Opinion of the Court 21-12520
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:20-cv-14451-DMM
____________________
Before WILSON, JORDAN, and MARCUS, Circuit Judges.
PER CURIAM:
Frederick Henry appeals from two district court orders en-
tered in favor of Noel Stephen in his official capacity as the Sheriff
of Okeechobee County -- one partially dismissing Henry’s com-
plaint and a second denying Henry’s motion to amend the com-
plaint. Henry sued Sheriff Stephen and Correctional Officer Bran-
don Wilson, alleging one count of negligence under Florida state
law, two counts of Eighth and Fourteenth Amendment violations
for inadequate conditions of confinement and a failure to train un-
der 42 U.S.C. § 1983, and one count of disability discrimination un-
der the Americans with Disabilities Act (“ADA”). At the motion to
dismiss stage, the district court dismissed the three federal claims
against Stephen and all four claims against Wilson. Then, after the
deadline to amend his complaint had passed, Henry moved to
amend his complaint to provide more facts about his ADA and neg-
ligence claims. The district court denied that motion.
On appeal, Henry challenges the district court’s order dis-
missing his ADA claim against Sheriff Stephen and its order
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21-12520 Opinion of the Court 3
denying his motion to amend his complaint. After careful review,
we conclude that we do not have jurisdiction over the order deny-
ing the motion to amend, but we affirm the order dismissing the
ADA claim.
I.
The relevant facts, as alleged in Henry’s first amended com-
plaint, are these. Henry was a pretrial detainee in Okeechobee
County Jail. He suffers from paraplegia and requires a wheelchair
to move around. Henry explained that when he was detained, the
jail provided him with a wheelchair, but it could not fit through the
entrance of his holding cell. As a result, Officer Wilson put Henry
in a room used by attorneys visiting with inmates. According to
Henry, that room did not have a bed, so Wilson placed a mattress
on top of a desk and helped Henry onto the desk to sleep. In the
middle of the night, Henry fell from the desk and suffered injuries.
When Henry told Wilson about his injuries, Wilson allegedly re-
fused to help and instructed Henry to lay on the floor with the mat-
tress. Henry says he continued to complain about leg and back
pain until he was transported to Raulerson Hospital, where he re-
ceived diagnoses of neck, hip, and back sprains, knee pain, and a
contusion.
Thereafter, Henry sued the Okeechobee County Sheriff’s
Office and Sheriff Noel Stephen, in his official capacity, in Florida
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4 Opinion of the Court 21-12520
state court. 1 In that complaint, Henry brought the Florida negli-
gence claim, in addition to the three federal claims -- the Eighth and
Fourteenth Amendment violation under § 1983 for inadequate
conditions of confinement, the Eighth and Fourteenth Amend-
ment violation under § 1983 for failure to train, and the ADA vio-
lation for disability discrimination. The defendants properly re-
moved the case to the United States District Court for the Southern
District of Florida. After removal, Henry amended his complaint,
adding Officer Wilson as a defendant in his individual and official
capacities under all four counts. Officer Wilson then moved to dis-
miss all four counts, and Sheriff Stephen moved to dismiss the three
federal counts.
On June 15, 2021, the district court granted the motion to
dismiss all four counts against Officer Wilson. The court also
granted the motion to dismiss the two § 1983 claims and the ADA
claim against Sheriff Stephen without prejudice, expressing skepti-
cism that any amendment could state a claim but permitting one
by June 25 “in an abundance of caution.” That deadline to amend
the complaint passed, and Henry did not amend the complaint. At
that point, then, all that remained for the district court to decide
was the outstanding negligence claim against Stephen, which
1 A suit against an officer in his official capacity “is simply another way of
pleading an action against an entity of which an officer is an agent.” Busby v.
City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (quotations omitted). So a
suit against Sheriff Stephen is the same as a suit against the Okeechobee
County Sheriff’s Office.
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Stephen had not moved to dismiss. On July 7, the district court
ordered Henry to reply by the next day to confirm that he was for-
going any amendment to the three federal claims. Henry re-
sponded that he did not plan to amend the complaint and expressed
his intent to file a motion for the district court to reconsider its or-
der dismissing his ADA claim.
Sure enough, on July 13, Henry moved the district court to
reconsider its order dismissing his ADA claim. The district court
denied the motion the next day. Then, on July 16, Henry moved
to amend his complaint. His proposed second amended complaint
contained only two counts -- one for negligence under Florida law
and one for disability discrimination under the ADA -- and alleged
more facts to support those claims. On July 20, Sheriff Stephen
moved for summary judgment on the only remaining count (the
negligence claim) from the first amended complaint, and, a few
days later, he filed a response opposing Henry’s motion to amend
the complaint. On July 27, without commenting on the merits of
the proposed second amended complaint, the district court denied
the motion to amend for failure to show good cause under Federal
Rule of Civil Procedure 16. Henry then appealed the district
court’s order granting the motion to dismiss the ADA claim and its
order denying the motion to amend.
Notably, at the time of appeal, Henry’s negligence claim re-
mained live, and Stephen’s motion for summary judgment on that
claim was still pending. After he filed the notice of appeal, how-
ever, Henry moved to remand the negligence claim to state court.
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Over Stephen’s opposition, the district court agreed and remanded
the negligence claim to Florida state court and closed the case.
This timely appeal follows.
II.
For starters, we must evaluate, on de novo review, whether
we have appellate jurisdiction. See Frulla v. CRA Holdings, Inc.,
543 F.3d 1247, 1250 (11th Cir. 2008); Van Poyck v. Singletary, 11
F.3d 146, 148 (11th Cir. 1994). “To be appealable, an order must
either be final or fall into a specific class of interlocutory orders that
are made appealable by statute or jurisprudential exception.” CSX
Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir.
2000). We first consider the district court order granting the mo-
tion to dismiss, and then its order denying the motion to amend
the complaint. The punchline is that we have jurisdiction over the
former, but not the latter.
Usually, we judge whether an appeal is timely based on the
date of the notice of appeal. See Fed. R. App. P. 3(d)(1). If, by that
date, the court entered an order “that ends the litigation on the
merits and leaves nothing for the courts to do but execute the judg-
ment,” then there is an appealable final order. Sabal Trail Trans-
mission, LLC v. 3.921 Acres of Land in Lake Cnty., 947 F.3d 1362,
1370 (11th Cir. 2020) (quotations omitted); see also 28 U.S.C.
§ 1291. In this case, on the date of the notice of appeal, Henry’s
negligence claim against Stephen was still pending. Thus, the order
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granting Stephen’s motion to dismiss the three federal counts was
not an appealable final order.
That said, “we have appellate jurisdiction over interlocutory
orders through a limited number of pathways,” including statutes,
rules, and judge-made doctrines. Jenkins v. Prime Ins. Co., 32 F.4th
1343, 1345 (11th Cir. 2022). First, among other things, a district
court may certify for appeal “an order not otherwise appealable” if
it “involves a controlling question of law as to which there is sub-
stantial ground for difference of opinion.” 28 U.S.C. § 1292(b). Sec-
ond, a district court “may direct entry of a final judgment as to one
or more, but fewer than all, claims or parties only if the court ex-
pressly determines that there is no just reason for delay,” pursuant
to Federal Rule of Civil Procedure 54(b). Third, a party can seek
review under the judge-made collateral order doctrine if the inter-
locutory order “(1) conclusively determine[s] a disputed question,
(2) resolve[s] an important issue completely separate from the mer-
its of the action, and (3) present[s] a question that would be effec-
tively unreviewable on appeal from a final judgment.” Jenkins, 32
F.4th at 1345 (quotations omitted). Fourth, under the doctrine of
practical finality, we review an order that “direct[s] immediate ex-
ecution and subject[s] the losing party to irreparable harm if appel-
late review is delayed until conclusion of the case.” Acheron Cap-
ital, Ltd. v. Mukamal as Tr. of Mut. Benefits Keep Pol’y Tr., 22
F.4th 979, 992 (11th Cir. 2022). Fifth, we occasionally allow review
of “an order of marginal finality . . . if the question presented is fun-
damental to further conduct of the case.” Atl. Fed. Sav. & Loan
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8 Opinion of the Court 21-12520
Ass’n of Ft. Lauderdale v. Blythe Eastman Paine Webber, Inc., 890
F.2d 371, 376 (11th Cir. 1989). However, none of these longstand-
ing exceptions apply here, nor do the parties argue otherwise.
One avenue remains for Henry: cumulative finality. Under
the doctrine of cumulative finality, “a premature notice of appeal
is valid if it is filed from an order dismissing a claim or party, and is
followed by a subsequent final judgment, even without a new no-
tice of appeal being filed.” Jimenez-Morales v. U.S. Att’y Gen., 821
F.3d 1307, 1309 (11th Cir. 2016); accord Robinson v. Tanner, 798
F.2d 1378, 1385 (11th Cir. 1986); United States v. Olvarrieta, 812
F.2d 640, 642 (11th Cir. 1987); Govern v. Meese, 811 F.2d 1405,
1408 (11th Cir. 1987); Kramer v. Unitas, 831 F.2d 994, 997 (11th Cir.
1987); Fehlhaber v. Fehlhaber, 941 F.2d 1484, 1486 n.1 (11th Cir.
1991). Our inquiry under the doctrine is twofold. First, we must
decide whether the interlocutory order dismissing some of Henry’s
claims was immediately appealable under Rule 54(b). Second, if it
was immediately appealable under Rule 54(b), then we must de-
cide if it was followed by a subsequent final judgment while the
appeal was pending that cured the initial jurisdictional defect.
We begin with the first inquiry: whether, at the time of the
notice of appeal, the order was immediately appealable under
Rule 54(b). At the time the order was issued, it was interlocutory
for two separate reasons: (1) Henry’s negligence claim against
Sheriff Stephen was still pending; and (2) the order dismissed the
three federal claims without prejudice, leaving Henry a chance to
amend his complaint. By the time Henry filed his notice of appeal,
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however, Henry missed the court-ordered deadline to amend. As
soon as the deadline passed, the order became final on the three
dismissed federal claims. See Briehler v. City of Miami, 926 F.2d
1001, 1002 (11th Cir. 1991). Therefore, the order was “a final judg-
ment as to one or more, but fewer than all, claims.” See Fed. R.
Civ. P. 54(b). As a result, the order granting his motion to dismiss
passes step one of the inquiry.
Next up is whether the district court entered a final judg-
ment, dismissing the remaining negligence claim, after Henry filed
his notice of appeal. While his appeal was pending, on Henry’s
motion, the district court remanded the negligence claim back to
Florida state court and closed the case, leaving nothing else for the
district court to do. A notice of appeal does “not divest the district
court of jurisdiction over collateral matters not affecting the ques-
tions presented on appeal.” Doe, 1–13 ex rel. Doe Sr. 1–13 v. Bush,
261 F.3d 1037, 1064 (11th Cir. 2001). So the district court retained
the power to decide how to handle the remaining negligence claim.
Moreover, the district court’s order remanding the case to state
court and closing the federal case acted as a subsequent final judg-
ment. See Florida Polk County v. Prison Health Servs., Inc., 170
F.3d 1081, 1083 (11th Cir. 1999) (“The district court’s remand or-
ders are final in the sense that they terminated the controversy in
federal court.”).
All told, under the doctrine of cumulative finality, the re-
mand order cured what had previously been a premature appeal
from the district court’s order of dismissal. See Jimenez-Morales,
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821 F.3d at 1309. And, therefore, we have jurisdiction to entertain
Henry’s appeal from the dismissal of his ADA claim against the
Sherriff in his official capacity.
By contrast, we do not have jurisdiction to review the dis-
trict court order denying Henry’s motion to amend his complaint.
An order denying a motion to amend the complaint is not a final
judgment, see 28 U.S.C. § 1291, nor does it fall under any of the
exceptions to the final judgment rule we have already discussed,
see Jenkins, 32 F.4th at 1345–46; Acheron Capital, 22 F.4th at 992;
Atl. Fed. Sav. & Loan Ass’n, 890 F.2d at 376. Furthermore, the doc-
trine of cumulative finality does not apply. The order denying the
motion to amend did not dismiss a claim or party and remained an
unappealable interlocutory order. See Fed. R. Civ. P. 54(b). The
subsequent remand did not affect the appealability of that order,
either. See Jimenez-Morales, 821 F.3d at 1309 (“[A] premature no-
tice of appeal filed from an interlocutory order that is not immedi-
ately appealable is not cured by a subsequent final judgment.”).
Nor can we exercise pendent appellate jurisdiction over the
district court’s order denying the motion to amend. The doctrine
of pendent appellate jurisdiction “allows us to address [otherwise]
nonappealable orders if they are inextricably intertwined with an
appealable decision or if review of the former decision [is] neces-
sary to ensure meaningful review of the latter.” Jones v. Fransen,
857 F.3d 843, 850 (11th Cir. 2017) (quotations omitted). Neither
exception applies here. Henry’s motion to amend is not inextrica-
bly intertwined with the motion to dismiss. Matters are
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“inextricably intertwined” if they involve the same facts and law.
Id. But a motion to amend a complaint after a deadline requires a
showing of good cause, see Fed. R. Civ. P. 16(b)(4); Sosa v. Airprint
Sys., 133 F.3d 1417, 1419 (11th Cir. 1998), and whether Henry had
good cause to amend the operative complaint is wholly unrelated
to whether he stated an ADA claim in the operative complaint.
Moreover, review of the order granting the motion to dismiss does
not require review of the order denying the motion to amend. The
motion to dismiss concerns the first amended complaint, and the
motion to amend concerns the proposed second amended com-
plaint. A decision about the former would never depend on or
cross paths with a decision about the latter. Accordingly, we do
not have jurisdiction over the order denying the motion to amend.
III.
With that, we return to the order dismissing Henry’s ADA
claim. “We review de novo the grant of a motion to dismiss pur-
suant to Rule 12(b)(6) for failure to state a claim upon which relief
can be granted.” Hopper v. Solvay Pharm., Inc., 588 F.3d 1318,
1324 (11th Cir. 2009). In so doing, “we accept the factual allega-
tions supporting a claim as true and draw all reasonable inferences
in favor of the nonmovant.” Newton v. Duke Energy Fla., LLC,
895 F.3d 1270, 1275 (11th Cir. 2018).
Henry’s claims arose under Title II of the ADA, which pro-
vides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public
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entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. “To state a claim under Title II of the ADA, a plain-
tiff must allege: (1) that he is a ‘qualified individual with a disabil-
ity;’ (2) that he was ‘excluded from participation in or . . . denied
the benefits of the services, programs, or activities of a public en-
tity’ or otherwise ‘discriminated [against] by such entity;’ (3) ‘by
reason of such disability.’” Shotz v. Cates, 256 F.3d 1077, 1079 (11th
Cir. 2001) (quoting 42 U.S.C. § 12132). In most cases, a plaintiff
receives injunctive relief from an ADA violation, Silberman v. Mi-
ami Dade Transit, 927 F.3d 1123, 1134 (11th Cir. 2019), but Henry
only appeals the dismissal of his claim for compensatory damages.2
To receive compensatory damages, the “plaintiff must clear
an additional hurdle: he must prove that the entity that he has sued
engaged in intentional discrimination, which requires a showing of
deliberate indifference.” Id. (quotations omitted). Deliberate in-
difference “is an ‘exacting standard,’ which requires showing more
than gross negligence.” McCullum v. Orlando Regional
Healthcare Sys., Inc., 768 F.3d 1135, 1147 (11th Cir. 2014) (citation
omitted). “To establish deliberate indifference, a plaintiff must
show that the defendant knew that harm to a federally protected
right was substantially likely and failed to act on that likelihood.”
2 Henry originally requested injunctive and declaratory relief under the ADA,
too. The district court dismissed those requests for relief as moot because
Henry had been released from pretrial detention. See McKinnon v. Talladega
City, 745 F.2d 1360, 1363 (11th Cir. 1984). Henry does not challenge that dis-
missal on appeal.
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Id. (emphasis in original) (quotations omitted). “Moreover, in or-
der to hold a government entity liable, the plaintiff must demon-
strate that an official who at a minimum has authority to address
the alleged discrimination and to institute corrective measures on
the [entity’s] behalf had actual knowledge of discrimination in the
[entity’s] programs and fail[ed] adequately to respond.” Silberman,
927 F.3d at 1134 (quotations omitted).
Here, we are unpersuaded by Henry’s claim that the district
court erred in dismissing the ADA count because Henry failed to
allege facts sufficient to prove Sheriff Stephen acted with discrimi-
natory intent. As we’ve noted, a suit against Sheriff Stephen in his
official capacity is a suit against Okeechobee County, Busby, 931
F.2d at 776, so Henry must allege, among other things, facts suffi-
cient to prove Sheriff Stephen or some other high-up official knew
about the alleged discrimination and failed to respond, Silberman,
927 F.3d at 1134 (“To qualify, that ‘official’ must be “‘high enough
up the chain-of-command that his [or her] acts constitute an official
decision by the [entity] not to remedy the misconduct.’” (citation
omitted)). According to the complaint, only Officer Wilson put
Henry in the attorney consultation room, helped Henry onto the
mattress he had placed on the desk, and later ignored Henry’s pleas
for medical attention. As a corrections officer, however, Officer
Wilson “simply [isn’t] high enough up the org chart to permit a
reasonable inference that, through [his] actions, [he] speak[s] for
[the County] as a whole.” Id. at 1135.
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As for the specific actions of Sheriff Stephen, Henry broadly
claims that the Sheriff engaged in ADA violations by failing to train
officers, make the jail wheelchair accessible, or maintain safe con-
ditions for disabled detainees. But he does not allege -- nor even
remotely suggest -- that Sheriff Stephen knew about Officer Wil-
son’s decision to have Henry sleep on a mattress atop a desk in a
room for legal consultations. Nothing in the complaint could be
read to say that Stephen had “actual knowledge” of the supposed
discrimination here. Id. at 1134.
Nor can we grant relief based on Henry’s claim -- raised for
the first time in his brief on appeal -- that he was illegally segregated
from nondisabled detainees under Olmstead v. L.C. ex rel. Zim-
ring, 527 U.S. 581 (1999). In Olmstead, the Supreme Court held
that “[u]njustified isolation” of mentally disabled individuals “is
properly regarded as discrimination based on disability.” 527 U.S.
at 597. Notably, however, Henry did not allege unlawful segrega-
tion in his complaint, focusing instead only on a claim of inade-
quate accommodations in his sleeping arrangement. He cannot
now “use his briefing to add new allegations and argue that those
new assertions support his cause of action.” See Michel v. NYP
Holdings, Inc., 816 F.3d 686, 705 (11th Cir. 2016) (declining to con-
sider arguments that “depend[ed] on facts that were not pled in [the
appellant’s] complaint”). Regardless, even if Henry had alleged an
unlawful segregation, he still failed to offer any facts sufficient to
prove deliberate indifference by Sheriff Stephen or any other high-
up official. Without deliberate indifference, Henry did not state a
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claim for compensatory damages under the ADA. Accordingly, we
affirm the district court’s order dismissing Henry’s ADA claim.
AFFIRMED.