by David M. Reutter
On November 11, 2022, the U.S. Court of Appeals for the Eleventh Circuit affirmed dismissal of an Alabama prisoner’s civil rights action that alleged overlong delays in treatment for hernias and post-surgery complications. The case provides a lesson in the proper preparation of affidavits to support a motion for summary judgment.

Prisoner Larry Roy asserted claims of deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, against Gov. Kay Ivy (R) and Commissioner Jefferson Dunn of the state Department of Corrections (DOC), as well as DOC’s privately contracted healthcare provider, Wexford Health Sources, Inc. The U.S. District Court for the Southern District of Alabama granted summary judgment to Wexford, also dismissing claims against Ivey and Dunn for failure to state a claim. Roy appealed.

In his suit, he contended that Wexford had “a policy, custom, and pattern” of delaying medical treatment following a doctor’s diagnosis and that Ivy knew or should have known about it. He added that Dunn and his staff had set a similar policy, custom, or practice of causing delays and depriving Roy of adequate medical care.

In June 2020, he submitted a 61-page brief to the district court that included signed statements from Roy and seven other prisoners. But all of the statements were unsworn.

The Eleventh Circuit found that all but one failed to comply with the requirements of 28 U.S.C. § 1746. That allows a written, unsworn declaration, certificate, verification, or statement to substitute for an affidavit. But the statement must be in substantially this form: “I declare (or certify, verify, or state) under the penalty of perjury that the foregoing is true and correct.”

Only one of Roy’s unsworn statements, submitted by prisoner John Dejnozka, met the requirements. So it was the only statement that could be considered, the Court said, and the district court was correct in not considering the others. The lower court also correctly treated Roy’s sworn complaint as testimony when ruling on the summary judgment motion.

Moving to the merits, the Court found that without corroborating evidence, which those improperly submitted statements might have provided, Roy’s claim failed. Because the only evidence left concerned his specific care, there was no showing of a “policy, custom or practice” by Wexford to delay treatment. The Court also affirmed dismissal of claims against Ivy and Dunn; since Roy did not object when a magistrate recommended dismissal, the Court said it could review the matter for plain error only – and again, the lack of corroboration killed Roy’s claims that there was a widespread policy or custom by the officials, who of course had no personal involvement in his case.

Thus the district court’s order was affirmed. Roy proceeded pro se at the district court and on appeal was represented by Mobile attorney Jason Darley of the Darley Law Firm, LLC. See: Roy v. Ivy, 53 F.4th 1338 (11th Cir. 2022).

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