[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 20, 2006

N o . 05-14588

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

D . C. Docket No. 03-00614-CV-T-17MAP

P A T R IC IA LYNN FRY,

Plaintiff-Appellant,

versus

HILLSBOROUGH COUNTY SCHOOL BOARD, FLORIDA,

LIZETTE RAIG ALEXANDER,

JOYCE MILES,

Defendants-Appellees.

A p p e al from the United States District Court

fo r the Middle District of Florida

(July 20, 2006)

B efo re TJOFLAT, BIRCH and BARKETT, Circuit Judges.

P E R CURIAM:

P atricia Lynn Fry appeals pro se the district court's denials of her numerous p le ad in g s 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 f o r m e r employer, the School Board of Hillsborough County, Florida (the "Board"), I n her pro se civil rights action filed pursuant to 42U.S.C. § 1983, Fry alleged d iscrim in atio n and retaliation based on the exercise of her First Amendment rights.

The district court concluded that Alexander and Miles were entitled to qualified im m u n ity. Concluding that there is no reversible error, we AFFIRM.

I. BACKGROUND F ry, a school psychologist by occupation, filed a complaint on 3 April 2003 ag ain st the Board and Board employees Alexander and Miles, claiming d is cr im in a tio n and retaliation under the Americans with Disabilities Act ("ADA") o f 1990, 42U.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 reassig n ed her to Oak Park Elementary School ("Oak Park"); (2) Fry sent e-mails to several individuals requesting additional Exceptional Student Education ( "E S E " ) support for Oak Park; (3) after the e-mail communication, Fry was rep rim an d ed by Miles, the principal, for "telling Oak Park business"; and (4) on 20 M arch 2002, Fry was informed that her contract would not be renewed. R1-1 at 7, 1 2 , 20. Fry further alleged that, throughout her employment with the Board, she v o ic ed her concerns that the Board was not complying with the procedural req u irem en ts 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 in stru cted to ignore the problems. In her prayer for relief, Fry sought rein statem en t, compensatory damages, and injunctive relief that the defendants be p ro h ib ited from violating her rights under the First Amendment.

T h e Board alone answered the complaint. The defendants simultaneously filed a partial motion to dismiss the complaint, arguing, inter alia, that: (1) the A D A and RA claims against Alexander and Miles in their individual capacities sh o u ld be dismissed; and (2) to the extent that Fry raised a First Amendment claim, h e r complaint did not allege that she engaged in protected speech or otherwise was s u b je cte d to an adverse employment action based on her engagement in protected s p e ec h . Fry responded, clarifying, inter alia, that she was attempting to raise a F irst Amendment claim. She alleged that the defendants retaliated against her by tr an s f er rin g her to Oak Park for advocating for proper utilization of ESE resources a n d for the rights of people with disabilities, which were matters of public concern th at were outweighed by the Board's interest in preventing her speech.

Fry then filed a motion to disqualify the Board's counsel, Thomas Gonzales, b ased 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 s co p e of his representation of the Board; (3) Gonzalez's inappropriate behavior; a n d (4) his potential to be a substantial witness in the case. During an evidentiary h earin g on the issue, Gonzalez testified that, in his earlier conversation with Fry, it w as clear that he and Fry were on opposite sides and that he never told Fry that he rep resen ted her. Gonzales also stated that he did not expect to be a witness in the c as e. The court denied the motion, noting that Fry's belief that Gonzalez was an in teg ral part of the decision not to renew her contract was not enough, without ev id en ce to support it, to require him to withdraw.

On 3 July 2003, the district court dismissed Fry's ADA and RA claims ag ain st Alexander and Miles as individuals, but found that her complaint s u f fic ie n tly stated a First Amendment claim, ordering that the defendants had ten d a y s to answer the complaint. On 14 July 2003, the Board alone filed an amended a n s w e r, but, on 24 July 2003, all three defendants filed a second amended answer, n o tin g 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 resp o n d in g to the complaint out of an abundance of caution, and raised the defense o f qualified immunity. On that same day, Fry filed a "Partial Motion for Default Ju d g m en t Due to Defendants' Failure to Comply with a Court Order," explaining th a t, on 23 July 2003, she learned that Alexander and Miles had not filed an answer an d called the defendants' counsel, Thompson, Sizemore, & Gonzalez ("the F irm ") , which informed her, with "hostility and contempt," that the district court's o rd er 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 A lex an d er and Miles's failure to answer her complaint and asked for sanctions ag ain st the Firm for willful and negligent conduct. The district court summarily d en ied the motion.

F r y also filed motions for a preliminary injunction and a temporary r es tr ain in g order ("TRO"), seeking to prevent the defendants from revoking her g r o u p health benefits and reproducing confidential information, such as social s ec u r ity numbers, found in Fry's personnel files. After a hearing on the motions, at w h ic h Fry explained her recent discovery that confidential records from Oak Park h ad been subpoenaed in a different lawsuit against a school district in Georgia, a m a g is tr ate judge recommended denying the motions, finding that they sought relief fo r claims separate from those in this lawsuit. The district court then denied the m o tio n s over Fry's objections and denied Fry's later motion to alter or amend the o r d e r . Fry later filed an interlocutory appeal of the denial of her motions for a p relim in ary injunction and TRO, which we dismissed for want of prosecution.

On 15 July 2004, Fry filed a motion to amend her complaint to include a d d itio n a l facts that took place after March 2002, when she filed her original ch arg e with the Equal Employment Opportunity Commission ("EEOC"), and a tta ch e d (1) a copy of a second EEOC charge, dated 19 March 2004, alleging that th e 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, b ecau se she was a litigant in another ADA and RA case in Georgia, by interfering w ith her health benefits and placing confidential information about students and s ta ff in her personnel file without notice, in violation of state law. The district co u rt denied the motion, finding that, to the extent that Fry was alleging the same c la im s as she made in her motions for a preliminary injunction and TRO, such c la im s 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, a n d had failed to exhaust her administrative remedies, under the Employee R etirem en t Income Security Act ("ERISA"), 29U.S.C. § 1001 et seq., regarding th e denial of her health care benefits. Finally, the court determined that, to the ex ten t 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 th e motion. At the hearing, Fry explained that she was having trouble deposing w itn e s se s and that she was hindered by confidentiality issues from completing her d isco v ery process, since she wanted to discuss school records pertaining to certain stu d en ts. During the hearing, the magistrate judge explained the concept of su m m ary judgment to Fry, stating that "the basis for [Federal Rule of Civil P r o c ed u r e 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 ju d g e denied Fry's motion, except for her request to use confidential student reco rd s during depositions. Fry then filed an emergency writ of mandamus, asking th e 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 h a d permission to file items under seal, and give her other guidance. The court su m m arily denied the motion.

Following discovery, each defendant filed a motion for summary judgment.

I n support of their motions, the defendants filed several depositions with attached ex h ib its, affidavits, and case law. In her deposition, Fry testified that she had two m asters degrees in special education and educational psychology and was disabled.

S h e stated that Alexander hired her as a school psychologist for the 2000-2001 sch o o l year at Lopez Elementary School ("Lopez") and that part of her job was to p erfo rm evaluations and re-evaluations on students who were referred to her and to p a r tic ip a te in the pre-referral process. In April 2001, her immediate supervisor, M ic h a el Cummings, told her that he and Leila Leverett, Lopez's principal, had d ecid ed to explore other positions for her because Lopez was potentially in trouble fo r procedural violations regarding the schools's use of psychological services.

Fry explained that she had questioned why the school was allowing the p s y ch o lo g is ts to evaluate the same children multiple times for their potential p lacem en t in the gifted program. In response to her questions, Fry stated that she w a s told to "lay low." R. Exh. 1-124 (Fry Deposition), at 179. Fry further testified th at Leverett told her that she was being transferred because Fry had a personality co n flict with another Lopez employee, and, although she was a good psychologist, L ev erett did not have a choice.

Fry was later transferred to Oak Park. She testified that, on many occasions, sh e spoke up about children whom she believed were being mistreated at Oak Park, in clu d in g one child whom Miles, Oak Park's principal, left in a classroom for m en tally handicapped children, when she should have attempted to "mainstream" th e child. Id. at 321. According to Fry, she brought these issues to the attention of E d w ard McDowell, who responded that the issues would be taken care of im m ed iately and asked her to tell him about any other issues that arose in the fu tu re. Later, she learned that her comments were interpreted as "[Fry is] going to g et the school district sued," and suspected that the loss of her job had to do with h e r comments. Id. at 324. Fry stated that, during the 2001-2002 school year at O a k Park, she completed over eighty-seven cases which required a "write-up," as w e ll as "many" evaluations and testing of students. Id. at 329-31, 334. Fry denied h a v in g conflicts with several employees. Finally, Fry stated that she received an ev alu atio n on 14 March 2002, advising her that, based on Miles's observations of F ry's performance and feedback from Fry's county-level supervisor, Miles was not ren o m in atin g Fry for the 2002-2003 school year.

As exhibits to Fry's deposition, the defendants attached a copy of Fry's s p r in g evaluation, dated 11 February 2002, in which Miles noted, inter alia, that F r y needed improvement in using time efficiently, following standards of ethical co n d u ct, seeking and using collaborative consultation with colleagues and ad m in istrato rs, and maintaining flexibility in performance of responsibilities; and w as unsatisfactory in working with a minimal amount of supervision, d em o n stratin g skills in mental health counseling, and speaking positively and co n stru ctiv ely with students. Also attached was a letter addressed to Fry from M iles, dated 14 March 2002, summarizing the reasons for Fry's spring evaluation, in clu d in g that: (1) Fry had an excessive number of late arrivals to school; (2) Fry's c o m m e n ts and actions indicated an unwillingness to respect and consider other p o in ts of view; (3) on several occasions, Fry abandoned her responsibilities at Oak P a rk ; (4) Fry had made disparaging remarks about the student population that had m ad e Miles uncomfortable; and (5) Fry had not completed a reasonable number of e v a lu a tio n s 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 th at Fry was moved to Oak Park because she was having inter-personal issues with th e 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 m an y factors, including that Fry made the staff uncomfortable by referring to the c h ild r e n 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 co u ld not get along with others and required "an enormous amount of supervision," an d that she had "never seen a situation that required that much administrative s u p p o r t 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 e v a lu a tio n needs without the assistance of anyone else, but "[t]hat did not occur at O ak Park." Id. at 126. M iles testified that she was the principal of Oak Park during the 2001-2002 s ch o o l year. She explained that part of her decision not to renominate Fry was b a s ed 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 in te rp e r so n a l skills. Miles also testified that Fry came into work late eighteen tim es without a doctor's excuse, and that, during one meeting, Fry refused to test a ch ild , even though the rest of the team recommended that the child was ready for testin g . Additionally, according to Miles, when a parent disagreed with Fry's co m m en ts at a meeting, Fry left the room and "did not want to hear that parent's p o in t of view." R. Exh. 2-121 (Miles Deposition) at 200. Any time that Fry was u p s et 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 tak en , and Fry called the children thieves and threatened to have them all arrested.

Miles further explained: [W ]h en ev er there was a meeting and it didn't seem to be going [Fry's] w ay . . . , either she would leave the meeting or hit on the desk or cu rse me out for -- for a schedule, and I thought that was being in su b o rd in ate. And when [Fry] was asked to do some testing, if it w asn 't the . . . student that she wanted to do it, she would ignore the req u est . . . .

Id. at 215-16. In her affidavit, Miles stated that she never reprimanded Fry for sen d in g an email regarding ESE services; that Fry had at least eighteen late arrivals 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 r eta lia te against Fry for exercising her First Amendment rights, but recommended th a t Fry's contract not be renewed for the reasons set forth in her performance e v a lu a tio n .

In support of her motion for summary judgment, Alexander argued that Fry f aile d to prove a First Amendment violation because Fry did not speak on a matter o f public concern, her speech was not a substantial factor in her termination, and h er contract would have been terminated even in the absence of her allegedly p r o te cte d speech. Alexander also argued that she was entitled to qualified im m u n ity because Fry failed to prove that a constitutional violation had occurred, an d the law was not clear that Alexander would be subjected to liability for r eta lia to r y 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, in d icatin g , inter alia, that she had completed numerous discovery tasks, including ta k in g ten depositions and making record requests, but needed more time to review th e defendant's evidence and complete her own discovery. On 10 June 2005, the d istrict court granted the motion, ordering that Fry's response be filed by 27 June 2005.

On 27 June 2005, Fry filed an emergency motion for an additional e n la rg e m e n t of time to respond, stating that her computer had crashed, which cau sed her to lose numerous documents, but she had received the remaining d e p o s itio n s and was ready to rescan her supporting documents and prepare her r es p o n s es . The district court granted the motion, ordering that Fry's responses w ere 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 fo r summary judgment and arguing that the complaint, answers to the in te rr o g a to r ie s, depositions, affidavits, and numerous exhibits demonstrated that A lex an d er and Miles had retaliated against her in violation of the First A m en d m en t. Specifically, she argued, inter alia, that, because Alexander's and M iles's actions violated the "basic standard for public officials," they were not en titled to qualified immunity. Fry also filed a statement of material facts as to w h ich a genuine issue existed and submitted numerous documentary materials, in c lu d in g depositions, exhibits, photographs, medical records, and copies of cases th at she believed were relevant.

In an order dated 19 July 2005, the district court found that Alexander and M ile s were entitled to qualified immunity and granted their motions for summary ju d g m en t. First, the court found that, taking Fry's allegations as true for the p u rp o ses of summary judgment, the actions taken by Alexander and Miles could be s ee n as a violation of Fry's First Amendment rights. However, the court d eterm in ed that, because the defendants asserted an adequate lawful motive for F ry's discharge, namely, her job performance, a reasonable public official in their p o sitio n s could not have been certain that their actions were unlawful based on clearly established law. The court found that, even assuming that the defendants h ad a discriminatory motive for discharging Fry, they still were entitled to q u alified immunity because an adequate lawful motive also was present.

Fry filed an emergency motion, pursuant to Rule 59(e), to alter or amend the d istrict court's order granting summary judgment as to Alexander and Miles, arg u in g that the district court erred by focusing on the adverse action of her nonren o m in atio n and failing to address all of the other adverse actions by the d efen d an ts, noting that she had filed a supplemental EEOC charge in March 2004.

S h e complained that she was not aware that she was required to fully argue the m erits of her case at the summary judgment stage. She argued that, because the reco rd did not indisputably establish that there was a lawful motive for her nonren o m in atio n , and there was a genuine issue of material fact as to whether her job p erfo rm an ce was lacking, the defendants were not entitled to qualified immunity. T h e district court denied the motion, noting that it found nothing in the motion that w o u ld require it to reverse its decision.

On appeal, Fry raises two issues: (1) whether the district court abused its d is cr etio n by denying Fry's numerous pro se pleadings, including her motions for a d efau lt judgment and to alter or amend the summary judgment order; and (2) w h eth er the district court erred in granting summary judgment to Alexander and M iles, based on their qualified immunity. Because we dismissed Fry's appeal of th e district court's grant of summary judgment to the Board for want of p r o s e cu tio n , we do not address that issue.

II. DISCUSSION A . The Denial of Fry's Numerous Pro Se Pleadings F ry argues that the district court abused its discretion by "routinely" denying h e r motions for procedural clarifications, a default judgment, a preliminary in ju n ctio n , discovery guidance, a writ of mandamus, and to alter or amend its su m m ary judgment order, and by assuming that she knew what was being denied, w h ic h , as a pro se party, she did not. She contends that the district court's strict c o m p lia n c e with procedural rules violated its duty to liberally construe her p le a d in g s .

We review most of the district court's denials of Fry's pretrial motions for an abuse of discretion. See Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1 1 2 1 (11th Cir. 2004) (reviewing district court's discovery rulings); Mitchell v. B ro w n & Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002) (rev iew in g denial of motion for a default judgment); Sierra Club v. Ga. Power Co., 1 8 0 F.3d 1309, 1310 (11th Cir. 1999) (per curiam) (reviewing denial of a p r e lim in a r y injunction); Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1 9 9 9 ) (reviewing ruling on motion to amend a complaint); Dist. Lodge No. 166, In tern . Ass'n of Machinists & Aerospace Workers, AFL-CIO v. TWA Servs., Inc., 7 3 1 F.2d 711, 718 (11th Cir. 1984) (reviewing ruling on writ of mandamus); T h o m as v. Farmville Mfg. Co., 705 F.2d 1307, 1307 (11th Cir. 1983) (per curiam) ( re v ie w in g ruling on Rule 59(e) motion to alter or amend judgment). Furthermore, "d is tr ic t courts enjoy broad discretion in deciding how best to manage the cases b e f o r e them." Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1 9 9 7 ). "Courts do and should show a leniency to pro se litigants not enjoyed by th o se with the benefit of a legal education. Yet even in the case of pro se litigants th is 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) (citatio n omitted). "[O]nce a pro se . . . litigant is in court, [s]he is subject to the r ele v a n t law and rules of court, including the Federal Rules of Civil Procedure." M o o n v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Here, because Fry fails to id en tify any specific error in the district court's denials of her numerous motions, an d there is no evidence in the record that the district court's management of its d o ck et was unfair to Fry, the district court did not abuse its discretion by denying th ese pre-trial motions. For example, because Fry's motion to alter or amend the d istrict court's summary judgment order merely reargued her opposition to su m m ary judgment, and failed to identify any manifest errors of law or fact or n ew ly discovered evidence, the district court did not abuse its discretion by d en yin g the motion.

In addition, although a district court may enter default judgment against a d efen d an t who has failed to respond to a complaint against him, default judgments sh o u ld only be entered if exceptional circumstances exist that prejudice the p lain tiff. 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)] m o tio n are newly-discovered [previously unavailable] evidence or manifest errors o f law or fact." In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). Rule 59(e) m ay not be used to relitigate a claim. Mincey v. Head, 206 F.3d 1106, 1137 n.69 (1 1 th Cir. 2000). Because there is no evidence that Fry was prejudiced by the ten -d ay delay in the defendants' raising of the defense of qualified immunity, the d istrict court did not abuse its discretion by denying the motion.

Regarding Fry's motion to disqualify counsel, "[w]e review the district c o u r t's findings of fact for clear error and carefully examine de novo the district c o u r t's application of ethical standards." Bayshore Ford Truck Sales, Inc. v. Ford M o to r Co., 380 F.3d 1331, 1338 (11th Cir. 2004). Here, because there was no ev id en ce that Gonzalez previously represented Fry, such that he was operating u n d er a conflict of interest, or otherwise behaved inappropriately, and Fry points to n o n e, 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. F lo y d Med. Ctr, 201 F.3d 1313, 1315 (11th Cir. 2000). Federal Rule 56(c) states th at summary judgment is appropriate "if the pleadings, depositions, answers to in terro g ato ries and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving party is e n title d to a judgment as a matter of law." Regarding the district court's grant of summary judgment to Alexander and M ile s, Fry raises three arguments. First, she argues that she did not receive actual o r constructive notice of her requirement to respond to the defendants' summary ju d g m en t motions. Second, she argues that, because the defendants waived the d efen se of qualified immunity by failing to raise it until their untimely second am en d ed answer, the district court erred by determining that they were entitled to q u alified immunity. Third, Fry contends that, because there was an issue of m aterial fact as to whether the defendants had lawful reasons for deciding not to r en e w her contract for another year, the district court erred by finding that they w ere entitled to summary judgment, pointing out that she disputed Miles's and A lex an d er'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 e v id e n c e of retaliation that she submitted. She contends that the district court erred b y essentially allowing the defendants to narrowly construe her complaint by lim itin g her First Amendment claims to protected speech and ignoring her claim th at 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 litig an t." 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 ag ain st a party unless that person has been given express notice, ten days in a d v a n c e , of his rights under that rule and how he might best defend them." Id. at 8 2 4 . (quotations omitted). The notice requirement of Rule 56(c) requires, at a m in im u m , "that an adverse party . . . be given express, ten-day notice of the su m m ary judgment rules, of his right to file affidavits or other material in o p p o sitio n to the motion, and of the consequences of default." Id. at 825.

H ere, even assuming that the district did not give Fry express notice, the reco rd conclusively establishes that, under the circumstances, it was reasonably ap p aren t to Fry that she was required to submit all of her evidence in opposition to th e motion. Moreover, after the defendants filed their summary judgment motions, F ry received two unopposed extensions of time to prepare her submissions in o p p o sitio n to summary judgment. Additionally, her responses to these motions, w h ich included deposition testimony, affidavits, and documents produced during d is co v e ry , specifically referenced the legal standard for summary judgment under R u le 56 and demonstrate the Fry understood its requirements. Thus, any error by th e district court in failing to give Fry express notice of her rights and resp o n sib ilities under Rule 56 was harmless. See Restigouche, Inc. v. Town of J u p ite r, 59 F.3d 1208, 1213 (11th Cir. 1995) (finding that failure to give notice u n d er Rule 56 was harmless error when appellant "ha[d] not been deprived of the o p p o r tu n ity to present facts or arguments which would have precluded summary ju d g m en t"); see also Sawyer v. Am. Fed'n of Gov't Employees, AFL-CIO, 180 F .3 d 31, 34-35 (2d Cir. 1999) (holding that notice is sufficient when the pro se p a r ty "responds to the summary judgment motion with factual and legal su b m issio n s indicating that [s]he understood the nature and consequences of su m m ary judgment and the need to set forth all available evidence demonstrating a g en u in e dispute over material facts" (quotations and citations omitted)).

2. Whether Defendants Raised Affirmative Defense of Qualified I m m u n ity Q u alified immunity is an affirmative defense to personal liability that the d efen d an t has the burden of pleading. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.

C t. 1920, 1924 (1980). The failure to plead qualified immunity may result in a w aiv er of the defense. See Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir. July 1 9 8 1 ). However, we have held that "qualified immunity can be pled at various stag es in a case[, and] . . . may be generally asserted (1) on a pretrial motion to d ism iss under Rule 12(b)(6) for failure to state a claim; (2) as an affirmative d efen se 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. T h o r n to n , 280 F.3d 1295, 1306 (11th Cir. 2002). We warned that "[t]he potential fo r abusive delays or manipulative uses of qualified immunity claims is clear, as a d efen d an t can raise the defense at various stages of litigation . . . . Defendants who ab u se the pretrial process through such stalling, however, may waive their right to r ais e the defense at the pretrial stage." Id. (citation omitted).

H ere, the defendants asserted the defense of qualified immunity in their seco n d amended answer, which was their first responsive pleading after their m o tio n to dismiss and which, although untimely by ten days, was accepted by the co u rt. There is no evidence that the defendants' failure to timely respond to Fry's co m p lain t was intentional, abusive, or prejudicial to Fry. Thus, the defendants did n o t waive the defense.

3. Whether the District Court Erred in Granting Defendants' Motions fo r Summary Judgment on the Basis of Qualified Immunity Q u alified immunity provides complete protection for state officials sued in th e ir individual capacities unless they have "violated a clearly established statutory o r constitutional right[] of which a reasonable person would have known." Willingham v. Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003) (quotations o m itted ). The Supreme Court has set forth a two-part test for evaluating a claim of q u alified immunity, with the threshold question being, "[t]aken in the light most fav o rab le to the party asserting the injury, do the facts alleged show [that the o fficial's] conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 2 0 1 , 121 S. Ct. 2151, 2156 (2001). If a constitutional right would have been v io lated under the plaintiff's version of the facts, the court must then determine "w h eth er the right was clearly established." Id. "For the law to be clearly estab lish ed 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 o b v io u s 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) (q u o tatio n s omitted).

We have held that: w h e n an adequate lawful motive is present, that a discriminatory m o tiv e might also exist does not sweep qualified immunity from the f ie ld 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 d efen d an t's conduct -- despite his having adequate lawful reasons to su p p o rt the act -- was the result of his unlawful motive, the defendant is entitled to immunity. Where the facts assumed for summary ju d g m en t purposes in a case involving qualified immunity show m ix e d motives (lawful and unlawful motivations) and pre-existing law d o es not dictate that the merits of the case must be decided in p lain tiff's favor, the defendant is entitled to immunity.

F o y 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 w h ere, 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 D a lto n , Ga., 219 F.3d 1280, 1296 (11th Cir. 2000) (emphasis in original).

H er e, even assuming, as the district court did, that Alexander and Miles's co n d u ct violated Fry's First Amendment rights, there is undisputed evidence in the reco rd that establishes that Alexander and Miles had lawful reasons for deciding n o t to renew Fry's employment contract, namely that the defendants were m o tiv a te d , at least in part, by Fry's deficient work performance and interpersonal b eh av io r. Thus, the district court correctly determined that they were entitled to q u alified immunity.

III. CONCLUSION In her appeal of her pro se civil rights action, Fry has failed to show that the d is tr ic t 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 su m m ary judgment. AFFIRMED.