FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 20, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-14588

Non-Argument Calendar

________________________

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:
2

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,
3

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,
4

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
5

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
6

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
7

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
8

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
9

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
10

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. 
11

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
12

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
13

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
14

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 nonrenomination 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 nonrenomination, 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. 
15

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
16

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.” 
17

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
18

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
19

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
20

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
21

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
22

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
23

“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
24

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.