Rebecca Bridges v. John Beard, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12425
Non-Argument Calendar
____________________
REBECCA BRIDGES,
As personal representative of the estate of Cody Healey,
deceased, for the benefit of his survivors and estate,
Plaintiff-Appellee,
versus
DAVID MORGAN, et al.,
Defendants,
JOHN BEARD,
ERIC ANDERSON,
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 1 of 12

-- 1 of 12 --

2 Opinion of the Court 21-12425
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:18-cv-00406-RV-HTC
____________________
Before R OSENBAUM , JILL PRYOR , and BRANCH, Circuit Judges.
PER CURIAM:
Escambia County Sheriff’s Deputies Eric Anderson and John
Beard appeal the denial of their request for qualified immunity at
summary judgment on 42 U.S.C. § 1983 claims that they used ex-
cessive force against and failed to render aid to Cody Healey, re-
sulting in his death. Because the deputies’ arguments hinge on an
evidentiary ruling regarding the admissibility of a hearsay state-
ment, which we lack interlocutory jurisdiction to review, we dis-
miss the appeal for lack of jurisdiction.
I.
On the morning of December 1, 2014, Deputies Anderson
and Beard responded to reports that an individual without pants
was behaving erratically near an elementary school. According to
the reports, the individual was yelling obscenities, twirling around,
running into and banging on cars and trees, rolling on the ground,
doing back flips, and jumping into bushes. The individual, later
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 2 of 12

-- 2 of 12 --

21-12425 Opinion of the Court 3
identified as Healey, refused to comply with the deputies’ com-
mands and resisted their attempts to take him into custody. After
a prolonged struggle, during which the deputies repeatedly de-
ployed a Taser and used open-hand techniques, the deputies even-
tually secured Healey with handcuffs and leg shackles.
While he was detained on the ground, Healey began to have
trouble breathing and went into cardiac arrest. At some point—
when exactly is disputed—the deputies called EMS, and CPR was
performed after Healey stopped breathing. Then, after his breath-
ing and vitals were restored, Healey was taken to the hospital. He
was placed on life support, but, tragically, he died two weeks later
at the age of 28.
II.
Following Healey’s death, his widow, Rebecca Bridges, as
personal representative of Healey’s estate, filed a lawsuit in state
court against Deputies Anderson and Beard in their individual ca-
pacities and the Sheriff of Escambia County in his official capacity.
The defendants removed the case to federal court and, following
several amendments to the complaint, ultimately moved for sum-
mary judgment. As relevant here, Anderson and Beard asserted
the defense of qualified immunity against Bridges’s § 1983 claims
that they (1) used excessive force against Healey, who posed no
threat to the officers or others, when they tased him repeatedly,
placed significant body weight on him to restrain him, and hobble-
tied him; and (2) failed to render aid to Healey once he began to
have a medical emergency.
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 3 of 12

-- 3 of 12 --

4 Opinion of the Court 21-12425
One of the central disputes at summary judgment con-
cerned whether the district court could rely on a four-page written
statement prepared by an eyewitness, Katrina Gardner, shortly af-
ter the events at issue. The court summarized the statement as
follows:
Gardner wrote that at no point during the scuffle did
Healey try to punch, kick, or hurt the two deputies in
any way. According to Gardner, Healey was just roll-
ing around on the ground in a straight line, counting
one through four, and not hurting anybody. Never-
theless, she says that Deputy Beard repeatedly tased
him, during and after which she watched Deputy An-
derson (who was a foot taller and weighed almost 200
lbs more than Healey) sit on him until he was hand-
cuffed and “hobble-tied,” and they left him face down
in that position for several minutes, at which point he
became limp and his face turned purple. Gardner
claims that she repeatedly told the deputies that Hea-
ley was unresponsive, but they ignored her and just
left him there face down on the ground. She states
that even after Healey had turned “completely pur-
ple” and lifeless, they never tried to perform CPR on
him. Instead, she claims that after Healey had lost his
pulse one of the deputies just “used his foot and
pushed his lifeless body over” in order to untie him,
but neither of them implemented life-saving
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 4 of 12

-- 4 of 12 --

21-12425 Opinion of the Court 5
measures until after the EMTs arrived several
minutes later.
The statement contradicted the deputies’ testimony on certain de-
tails about the encounter, including whether Healey used force
against the deputies and whether the deputies delayed in rendering
aid to Healey despite his obvious need. Although Gardner was de-
posed for this case, she did not provide testimony about the inci-
dent, variously claiming that she could not recall certain details,
that it was too traumatic for her, or that she feared retaliation from
the Sheriff’s Office.
Viewing Gardner’s written statement as likely “dispositive”
for summary judgment, the district court requested supplemental
briefing on whether it was admissible. Bridges said it was; the dep-
uties said it was not. Ultimately, the district court found that the
written hearsay statement was admissible as a recorded recollec-
tion under Rule 803(5), Fed. R. Evid. And based on the written
statement, the court determined that there were genuine issues of
material fact that precluded summary judgment, though it stressed
that Bridges had “only just barely survived summary judgment.”
Anderson and Beard appeal.
III.
Though no party raises the issue, we have an obligation to
consider our appellate jurisdiction
sua sponte.
Thomas v. Blue
Cross & Blue Shield Ass’n, 594 F.3d 814, 818 (2010). That is, “we
are required to explore whether we have jurisdiction to entertain
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 5 of 12

-- 5 of 12 --

6 Opinion of the Court 21-12425
this interlocutory appeal before we may proceed to the merits.”
Hall v. Flournoy, 975 F.3d 1269, 1274 (11th Cir. 2020).
Ordinarily, an order denying qualified immunity is immedi-
ately appealable as a final, “collateral order.”
Id. at 1274–75. That’s
because (again, ordinarily) it conclusively resolves the question of
whether a government official has immunity from suit, which is
“effectively lost if a case is erroneously permitted to go to trial.”
Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).
The Supreme Court, however, has drawn a distinction be-
tween “legal” and “factual” appeals in qualified-immunity cases.
See Johnson v. Jones, 515 U.S. 304, 313–15 (1995). That distinction
stems in part from the collateral-order doctrine itself, which re-
quires that the issue on appeal be distinct from the merits of the
plaintiff’s claim.
Id. at 314–15;
see also Behrens v. Pelletier, 516 U.S.
299, 312–13 (1996) (clarifying
Johnson).
“[W]hen legal questions of qualified immunity are raised—
either to determine whether any constitutional right was violated
or whether the violation of that right was clearly established—in-
terlocutory appellate jurisdiction exists,” because those issues are
considered to be “conceptually distinct from the merits of the plain-
tiff’s claim.”
Hall, 975 F.3d at 1275–76 (quotation marks omitted);
Koch v. Rugg, 221 F.3d 1283, 1296 (11th Cir. 2000) (“The denial of
qualified immunity is purely legal where it concerns only the appli-
cation of established legal principles to a given set of facts, which
enables appellate jurisdiction.” (quotation marks omitted)). We
also may review “evidentiary sufficiency issues that are part and
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 6 of 12

-- 6 of 12 --

21-12425 Opinion of the Court 7
parcel of the core qualified immunity issues, i.e., the legal issues.”
Koch, 221 F.3d at 1296.
“But if the only question before the appellate court is a fac-
tual one, review must wait for a later time.”
Hall, 975 F.3d at 1276.
If the appeal simply “involve[s] the determination of facts a party
may, or may not, be able to prove at trial,” we lack jurisdiction.
Koch, 221 F.3d at 1296. So when there is no core qualified-immun-
ity issue to review, “we cannot review a trial court’s determination
of the facts alone at the interlocutory stage.”
Hall, 975 F.3d at 1277.
Here, we conclude that we lack jurisdiction because the dep-
uties essentially present a factual challenge to the denial of qualified
immunity. A close review of their briefing shows why.
The vast majority of the deputies’ initial briefing regarding
the § 1983 claims is devoted to two main arguments.1 First, they
argue they were entitled to qualified immunity based on a
1 The deputies also challenge the denial of sovereign immunity under Florida
state law, but they invoke this Court’s pendent jurisdiction over that issue,
which they say is inextricably intertwined with the denial of qualified immun-
ity. “Pendent appellate jurisdiction is present when a nonappealable decision
is inextricably intertwined with the appealable decision or when review of the
former decision [is] necessary to ensure meaningful review of the latter.”
King
v. Cessna Aircraft Co., 562 F.3d 1374, 1379 (11th Cir. 2009) (quotation marks
omitted). Because we conclude that we lack jurisdiction to review qualified
immunity, we likewise lack pendent jurisdiction to review sovereign immun-
ity.
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 7 of 12

-- 7 of 12 --

8 Opinion of the Court 21-12425
construction of the record that excludes Gardner’s written state-
ment.2 But their arguments in this regard are consistent with the
district court’s decision. As we explained above, the court found
that Bridges “just barely survived” summary judgment due solely
to Gardner’s written statement, which the court viewed as “dispos-
itive.” Arguing that summary judgment was appropriate if we ex-
clude that statement does nothing to convince us that the court
improperly denied qualified immunity.
See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (stating that,
to obtain reversal, the “appellant must convince us that every
stated ground for the judgment against him is incorrect”).
Second, the deputies contend that the district court erred in
granting summary judgment based on Gardner’s written statement
because, in their view, that statement was inadmissible hearsay.
But that argument is not one we have interlocutory jurisdiction to
review since it merely concerns the “facts a party may, or may not,
be able to prove at trial.”
Koch, 221 F.3d at 1296. Whether the
2 Unlike Anderson’s initial brief, Beard’s initial brief includes a summary of
Gardner’s written statement. In the argument section of his brief related to
qualified immunity, however, Beard repeatedly relies on facts inconsistent
with that statement.
Compare, e.g., Beard Initial Br. at 35–36 (“Healey was
physically assaulting Anderson and Beard throughout this encounter multiple
times.”),
and id. at 40–42 (“Once Healey’s complexion changed, they removed
the restraints and Beard checked for, and found, his pulse.”),
with Doc. 113 at
4 (“Gardner wrote that at no point during the scuffle did Healey try to punch,
kick, or hurt the two deputies in any way.”),
and id. (“Gardner claims that she
repeatedly told the deputies that Healey was unresponsive, but they ignored
her and just left him there face down on the ground.”).
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 8 of 12

-- 8 of 12 --

21-12425 Opinion of the Court 9
court erred in determining the admissibility of certain evidence
does not go to “core qualified immunity issues”; that is, it does not
concern “the application of established legal principles to a given
set of facts.
See id. at 1296–97. That the evidentiary issue arose in
the context of qualified immunity is not enough.
See Behrens, 516
U.S. at 313 (“[D]eterminations of evidentiary sufficiency at sum-
mary judgment are not immediately appealable merely because
they happen to arise in a qualified-immunity case.”);
see also Whit-
lock v. Brueggemann, 682 F.3d 567, 575 (7th Cir. 2012) (“Questions
of admissibility are indeed legal questions; but they are not the sort
of legal questions that are sufficiently separable from the merits so
as to provide us with jurisdiction in a collateral-order appeal.”);
El-
lis v. Washington Cnty., 198 F.3d 225 (6th Cir. 1999) (dismissing an
interlocutory appeal under
Johnson even though “the only factual
dispute in this cases arises from the rankest type of inadmissible
hearsay”). We therefore lack jurisdiction to review the standalone
argument that Gardner’s statement is inadmissible hearsay.
What’s missing from the deputies’ initial briefing is any de-
veloped argument that, even accepting as true the factual state-
ments in Gardner’s written statement, the district court still erred
in denying them qualified immunity. To be sure, Anderson and
Beard both make that assertion in their initial briefs. But they have
failed to properly raise the issue as required by our precedent.
“[A]n appellant’s brief must include an argument containing
‘appellant’s contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 9 of 12

-- 9 of 12 --

10 Opinion of the Court 21-12425
relies.’”
Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir.
2009) (quoting Fed. R. App. P. 28). And “[w]e have long held that
an appellant abandons a claim when he either makes only passing
references to it or raises it in a perfunctory manner without sup-
porting arguments and authority.”
Sapuppo, 739 F.3d at 681;
Singh, 561 F.3d at 1278 (“[S]imply stating that an issue exists, with-
out further argument or discussion, constitutes abandonment of
that issue and precludes our considering the issue on appeal.”).
Moreover, arguments developed for the first time in a reply brief
“come too late.”
Sapuppo, 739 F.3d at 683;
see Hi-Tech Pharm.,
Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1194 (11th Cir. 2018) (“[A]n
appellant must directly challenge each of the district court’s
grounds in his initial brief; challenges that are merely hinted at or
that first appear in a reply brief do not merit consideration.”).
Here, the deputies’ initial briefs do no more than raise the
issue “in a perfunctory manner without supporting arguments and
authority.”
Sapuppo, 739 F.3d at 681. Anderson’s initial brief con-
fines the issue to a footnote, simply asserting that the contents of
Gardner’s written statement “would support the deputies’ claims
to qualified and sovereign immunity” and citing certain facts that
are purportedly not disputed by the statement. Anderson’s Initial
Br. at 75 n.315. But it does not address the facts that are disputed
or develop any argument or authority to explain why those dis-
puted facts, if resolved in Bridges’s favor, still warrant qualified im-
munity.
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 10 of 12

-- 10 of 12 --

21-12425 Opinion of the Court 11
Beard’s initial brief offers slightly more than a footnote on
the issue, but it suffers from the same essential defect as Ander-
son’s. Like Anderson, Beard says that certain facts remain undis-
puted even considering the statement. Beard Initial Br. at 81. He
then asserts in conclusory fashion that he is entitled to qualified im-
munity because “there is no clearly established law placing Beard
on notice regarding his taser use, to use the force he used under
these circumstances, and requirement to perform CPR or do more
than call EMS.”
Id. at 81–82. But in making these assertions, Beard
fails to address any of the disputed facts, to cite to any supporting
authority, or to argue why the disputed facts—including whether
Healey struck the two deputies in any way and whether the depu-
ties left Healey on the ground “unresponsive for several minutes
before they even checked his pulse,” as Gardner claimed—warrant
granting qualified immunity.
See Sapuppo, 739 F.3d at 681. Simply
asserting that he is entitled to qualified immunity, “without further
argument or discussion,” is not sufficient.
See Singh, 561 F.3d at
1278.
In sum, the deputies failed to properly brief the issue of
whether the district court erred in denying qualified immunity
based on Gardner’s statement.
See Sapuppo, 739 F.3d at 681. To
the extent the arguments are more developed in the reply briefs,
those arguments “come too late.”
Id. at 683. Regarding the other
issues they raise, their main qualified-immunity arguments do not
address Gardner’s statement and so do nothing to convince us that
the court erred, and we lack jurisdiction at this time to review
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 11 of 12

-- 11 of 12 --

12 Opinion of the Court 21-12425
whether Gardner’s statement was admissible because that issue
merely concerns the facts Bridges “may, or may not, be able to
prove at trial.”
Koch, 221 F.3d at 1296.
For these reasons, we dismiss the appeal for lack of jurisdic-
tion.
DISMISSED.
USCA11 Case: 21-12425 Date Filed: 02/04/2022 Page: 12 of 12

-- 12 of 12 --