Jacoby v. Mack et al

Filing 75

ORDER granting Motion for Summary Judgment (docs 55, 68, 69, 70) and denying 74 Motion for Extension of Time as set out in order. Signed by Judge Kristi K. DuBose on 3/21/2016. (copy mailed to plaintiff) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENT JACOBY (#291560)
Plaintiff,

*
*
*
*
*
*
*

vs.
SHERIFF HUEY MACK, et al.
Defendants.

CIVIL ACTION:13-00070-KD-B

ORDER
Plaintiff, an Alabama prison inmate proceeding pro se and
in forma pauperis filed a complaint seeking relief under 42
U.S.C.

§ 1983.

This

action

is

now

before

the

court

on

Defendants’ Motions for Summary Judgment. (Docs. 55, 68, 69,
70).

After

careful

consideration

of

the

motions,

and

the

documents filed in support of and in opposition to the motions,
and

for

the

reasons

stated

below,

Defendants’

Motions

for

Summary Judgment are granted and Plaintiff’s action is dismissed
with prejudice.
I.
As

BACKGROUND
a

Plaintiff

preliminary
Jacoby

is

matter,
a

the

frequent

undersigned
litigator.

observes
He

filed

that
four

complaints, including the instant one, while incarcerated as a
pretrial detainee at the Baldwin County Jail 1 . See Jacoby v.
1

A PACER (“Public Access to the Court Electronic Record”) search
reveals that in addition to the complaints that he has filed in this
district, Jacoby has also filed at least seven other § 1983 actions.
See Jacoby v. Conway, CA 10-00920-HBS(W.D.N.Y June 2, 2011), Jacoby v.
County of Oneida, New York, 05-1254 2009 U.S. Dist. LEXIS 83235

Baldwin

County

Jail,

Civ.

No.

12-00197-WS-M

(hereinafter

referenced as “Jacoby I”), 2013 WL 2285108, 2013 U.S. Dist.
LEXIS 72212 (S.D. Ala. May 7, 2013), Jacoby v. Mack, Civ. No.
12-00366-CG-C,

2014

WL

2435655,

2014

U.S.

Dist.

LEXIS

74768

(S.D. Ala. Mar. 14, 2014) (hereinafter referenced as “Jacoby
II”), Jacoby v. Baldwin County, Civ. No. 12-00640-CG-N, 2014 WL
2641834, 2014 U.S. Dist. LEXIS 81477 (S.D. Ala. Mar. 18, 2014)
(hereinafter referenced as “Jacoby III”). Some of the claims
that Jacoby seeks to raise in this action have already been
considered and rejected in the earlier filed actions 2 .

In fact,

all of Jacoby’s claims in each of those actions were dismissed
after it was determined that there were no genuine issues of
material fact in dispute, and that the defendants were entitled
to judgment as a matter of law. Id.
From its review of the record, the Court summarizes the
material factual allegations in this case in the light most

(N.D.N.Y. Sept.11, 2009),Jacoby v. Moscicki, 07–00342–HBS, 2008 U.S.
Dist. LEXIS 124827 (W.D.N.Y. Sept. 12, 2008), Jacoby v. Phelix, 0700872-(DNH/ATB) 2010 U.S. Dist. LEXIS 44222 (N.D.N.Y Mar. 31, 2010),
Jacoby v. Sears, CA 07–00872–ATB (N.D.N.Y. Mar. 28, 2011), Jacoby v.
Buncombe County Drug Treatment Program, 09-304–03–MU, 2009 U.S. Dist.
LEXIS 80419 (W.D.N.C. Aug. 13, 2009), and Jacoby v. Fischer, 10–00920–
HBS (W.D.N.Y. Apr. 10, 2013).
2

The Court takes judicial notice of its records. See United
States v. Glover, 179 F.3d 1300, 1302 n.5 (11th Cir. 1999) ("A court
may take judicial notice of its own records and the records of
inferior courts.").

2

favorable to Jacoby. 3 At all times relevant to his complaint in
this

action,

Jacoby

was

incarcerated

at

the

Baldwin

County

Correctional Facility as a pre-trial detainee. (Doc. 1 at 12).
Jacoby

arrived

transferred

at

from

the

the

facility

facility,

in

and

October
into

the

20ll,
custody

and

was

of

the

Alabama Department of Corrections upon his convictions for Third
Degree Burglary in October 2013. (Jacoby I, Doc. 98 at 2);(Doc.
39 at 4); www.doc.state.us/inmateHistoryaspxary (last visited on
March 14, 2016.).
On January 6, 2013, prison officials received a tip
that there was tobacco in the block occupied by Jacoby and other
inmates.

(Doc. 32-3 at 3-4).

staff. (Id.).

This prompted a block search by

During the search, tobacco was found taped to a

string and hanging down a doorframe, concealed from view. (Id.)
This tobacco was accessible to Jacoby and other inmates. (Id.).
Sgt. Lovett ordered all inmates who could be implicated in this
incident,

including

Jacoby,

to

be

taken

to

administrative

segregation while the investigation was completed. (Id.). The

3

For summary judgment purposes, the Court’s analysis must begin
with a description of the facts in the light most favorable to Jacoby,
who is the non-moving party. See Skritch v. Thornton, 280 F.3d 1295,
1299 (11th Cir. 2002). “[T]he ‘facts’ as accepted at the summary
judgment stage of the proceedings, may not be the ‘actual’ facts of
the case.” Priester v. City of Rivera Beach, 208 F.3d 919, 925 n.3
(11th Cir. 2000).

3

general policy of the facility mandates that any inmate who
might

be

implicated

in

an

offense

is

to

be

placed

in

administrative segregation for the safety and security of the
facility during an ongoing investigation. (Id.).
The
informed

following
that

day,

Jacoby

January

was

7,

being

2013,

disruptive

Sgt.
in

Lovett
his

cell

was
in

administrative segregation by repeatedly kicking the cell door,
and was refusing to follow instructions to stop. (Docs. 32-3 at
4; Doc. 32-7 at 10).

At the time, Jacoby had been at the

facility for nearly a year and a half, and during this period,
he had been found with contraband on multiple occasions, he had
numerous confrontations with prison staff, and he had attempted
to harm himself with a razor on at least two occasions. (Jacoby
I, Doc. 64 at 3-5; Jacoby II, Doc. 71 at 2-3, Jacoby III, Doc.
74 at 35).
Lovett

sent

Fully aware of Jacoby’s disruptive history, Sgt.
officers

to

Jacoby’s

cell

and

instructed

the

Corporal on the shift to use pepper spray if Jacoby continued to
be combative and refused to follow instructions. (Doc. 32-3 at
4).
A video of the incident shows a gathering of five or six
officers walking and discussing “handling business”. (Doc. 328.)

As officers approach and unlock the cell door, several

4

inmates can be seen exiting the cell, and one inmate is seen
couched on his knees on the floor.

Officers yell for the inmate

to get down, and then two officers move in, with one quickly
spraying

the

inmate,

who

is

identified

direction of the back of his head.
and

the

officers

place

as

Jacoby,

in

the

Jacoby is taken to the floor

Jacoby’s

hands

behind

his

back,

and

handcuff him. (Id.). Jacoby is then placed on his feet, and
officers proceed to escort him down a hallway.

They reach a

closet sink, bend him over, and rinse his face and the back of
his head with water.
then

placed

encounter,

in

Jacoby

a

Jacoby, who is clad is short pants, is
restraint

is

yelling

chair.

At

about

the

points
use

of

during

the

spray

and

threatening to sue the officers involved. The entire video lasts
approximately six minutes.(Id.)
On January 27, 2013, a routine search for contraband was
performed. (Doc. 32-3 at 5; Doc. 32-7). A 1.5 pound block of
crushed soap was found in Jacoby’s possession in violation of
contraband policy. (Doc. 32-3 at 5; Doc. 32-6; Doc. 32-7). The
soap was confiscated and Jacoby was charged with violating the
prison’s weapon’s policy because the crushed soap could easily
be used as a weapon, to hide other contraband such as razors,
and to attempt to vandalize property. (Id.). On February 4,

5

2013, a disciplinary hearing was conducted, Jacoby was found
guilty, and he was confined to segregation for thirty days.
(Doc. 1 at 10; Doc. 38-1).
In the instant petition, which was filed on February 14,
2014 4 , Jacoby asserts claims against Baldwin County Sheriff Huey
“Hoss” Mack, Captain Jimmie Bennett, Sgt. Janie Lovett, Cpl.
ReNisha

Spencer,

Officer

incidents

described

subjected

to

McCants

above.

inhumane

Jacoby

conditions

and

Cpl.

complains
in

Winky

for

that

segregation

the

he

was

because

segregation is overcrowded such that three inmates were forced
to sleep in cells designed for one to two persons, and he was
“forced to sleep with urine splattering on him, on his sheets
with pubic hairs, body hairs, and dirt all over him for 3 days
because he was forced to sleep on the floor”. (Doc. 1 at 5).
Jacoby also contends he was “denied outside recreation for
3 days, periodicals to read, and the opportunity to purchase
hygiene products” while in segregation due to BCSCC’s policy “to
not allow inmates to go to recreation, having reading materials,
and

purchase

grooming

products

in

4

segregation.”

(Id.).

He

Under the mailbox rule, absent contrary evidence, a prisoner’s
complaint is deemed filed on the date it is delivered to prison
officials for mailing. See Houston v. Lack, 487 U.S. 266, 271-72, 108
S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Adams v. United States, 173
F.3d 1399, 1340-41 (11th Cir. 1999); Washington v. United States, 243
F.3d 1299, 1301 (11th Cir. 2001); see also (Doc. 1 at 7).

6

further

avers

contraband

that

of

he

another

was

placed

inmate,

in

and

segregation

that

he

is

a

due

to

the

“serious

to

severe mentally ill inmate and should not be housed under these
extreme conditions.” (Doc. 1 at 6). Jacoby also contends that
during the January 7, 2013 incident, he was sprayed with pepper
spray for no reason while he laid on the ground without a shirt,
shoes, or socks, and that he was placed in a restraint chair and
left for “8 ½ hours strapped down screaming in agony for water
and out of pain” which also caused him to “urinate [] on himself
because he was not allowed to go to the bathroom.” (Doc. 1 at 68). He further claims that he was denied due process because he
was not provided adequate notice of the February 4 disciplinary
hearing, and the hearing was not recorded. (Doc. 1 at 10; Doc.
38-1).
According to Jacoby, each of these incidents reflects the
policy

and

Bennett

in

customs

him

lawsuits.

Defendants

supervising

Additionally,
against

of

Jacoby
due

(Doc.

to
1

at

the

claims
his
9).

Sheriff

BCSCC
that

Mack

facility.
Sgt.

(Doc.

Lovett

continued

filing

Jacoby

requested,

and

is

of

Captain

1

at

retaliating

grievances
and

9).

was

and

granted

permission to file an amended complaint on December 5, 2014 in
order

to

name

Defendants

McCants

7

and

Winky,

who

had

been

previously identified in the complaint as John Doe #1 and John
Doe #2. (Docs 45, 49).
Defendants

Spencer,

Bennett,

Mack,

and

Lovett

filed

an

Answer and Special Report disputing Jacoby’s claims. (Docs. 32,
33).

Defendants contend that Jacoby’s claims are barred by the

doctrines of collateral estoppel and res judicata, as well as by
the Prison Litigation Reform Act because he has not suffered a
physical injury as a result of the allegations in his amended
complaint.

They also argue that any claims against Defendants

in their official capacity should fail due to Eleventh Amendment
immunity,

and

that

claims

individual

capacities

brought

should

also

against

fail

them

because

in

their

Jacoby

cannot

show a violation of a clearly established right.5 (Doc. 32 at 1324).

According

force,

to

inadequate

Defendants,

Jacoby’s

conditions

of

claims

confinement,

of
due

excessive
process

violation, retaliation, and policy and procedure claims fail on
their merits6. (Id. at 24-37).

5

Defendants also asserted that Jacoby is barred from bringing
this lawsuit because he failed to disclose prior lawsuits that showed
that he had incurred three strikes prior to filing this claim. (Doc.
32 at 10). This argument was considered, and ultimately rejected by
the court. (Doc. 49).
6

On February 10, 2015, Defendants filed a Notice of Relevant
Precedent (Doc. 40) advising the Court of an opinion by the Eleventh
Circuit affirming the dismissal of Jacoby’s claims in "Jacoby I",

8

The

Court

Defendants

entered

Spencer,

an

order

Bennett,

notifying

Mack,

and

the

parties

Lovett’s

Answer

that
and

Special Report were being converted into a motion or summary
judgment, and giving the parties an opportunity to file briefs
in

support

conversion

or

opposition.

order

was

(Doc.

entered,

56).

Jacoby

However,
filed

a

before

the

response

in

opposition to Defendants’ summary judgment motion. (Doc. 39).
The two later added Defendants, Winky and McCants, filed their
Special Report and Answer on February 8, 2016. (Docs. 68, 69).
The Court entered an order notifying the parties that Winky and
McCants’ Answer and Special Report were being converted into a
motion or summary judgment, and giving them an opportunity to
file briefs in support or opposition. (Doc. 70).
The motions are now ripe for consideration7.
II.

STANDARD OF REVIEW

Jacoby v. Baldwin County Jail, Civ. No. 12-197-WS-M, 2013 WL 2285108,
2013 U.S. Dist. LEXIS 72212 (S.D. Ala. May 7, 2013).
7

More than two weeks after the deadline for filing opposition
briefs, Jacoby, on March 14, 2016, filed a motion for an extension of
time contending that he had been raped and kidnapped; thus, was unable
to timely file his response. (Doc. 74).
However, the undersigned
finds that Jacoby’s request is due to be denied. The docket reflects
that mere days earlier, on March 9, 2016, Jacoby filed a document
informing the Court that he wanted to proceed with this case, that he
was not going anywhere, and that he wanted his day in court. At that
point, Jacoby did not indicate a desire to file a response, request an
extension of time to file to file a response, or apprise the Court of
any problems encountered in filing a response.
In view of such,
Jacoby’s extension request is denied.

9

Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158,
1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even if
‘some alleged factual dispute’ between the parties remains, so
long as there is ‘no genuine issue of material fact.’”(emphasis
in original)).
The party asking for summary judgment “always bears
the initial responsibility of informing the district
court of the basis for its motion, and identifying
those portions of the ‘pleadings, depositions, answers
to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material
fact.” Id. at 323. The movant can meet this burden by
presenting evidence showing there is no dispute of
material fact, or by showing, or pointing out to, the
district court that the nonmoving party has failed to
present evidence in support of some element of its
case on which it bears the ultimate burden of proof.
Id. at 322–24.
Once the moving party has met its burden, Rule 56(e)
“requires the nonmoving party to go beyond the
pleadings and by [its] own affidavits, or by the
‘depositions,
answers
to
interrogatories,
and
admissions on file,’ designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324.
To avoid summary judgment, the nonmoving party “must

10

do more than show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
On the
other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn
in its favor. See Anderson, 477 U.S. at 255.
ThyssenKrupp

Steel

USA,

LLC

v.

United

Forming,

Inc.,

926

F.Supp.2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013) (citations
omitted).
As

noted

supra,

the

Court,

in

considering

whether

Defendants are entitled to summary judgment in this case, views
the facts in the light most favorable to Plaintiff. Comer v.
City of Palm Bay, Florida, 265 F.3d 1186, 1192 (llth Cir. 2001)
(“We view the evidence and all factual inferences raised by it
in the light most favorable to the non-moving party, and resolve
all reasonable doubts about the facts in favor of the non-moving
party.”).

The requirement to view the facts in the nonmoving

party’s favor extends only to “genuine” disputes over material
facts.

A genuine dispute requires more than “some metaphysical

doubt as to material facts.” Garczynski v. Bradshaw, 573 F.3d
1158, 1165 (11th Cir. 2009) (internal citations omitted).
“mere

scintilla”

of

evidence

is

insufficient;

the

A

nonmoving

party must produce substantial evidence in order to defeat a
motion for summary judgment. Id.

11

Moreover,

where

“opposing

parties

tell

two

different

stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007); see also
Logan v. Smith, 439 F.App’x 798, 800 (llth Cir. Aug. 29, 2011)
(“In cases where opposing parties tell different versions of the
same

events

one

of

which

is

blatantly

contradicted

by

the

record—such that no reasonable jury could believe it—a court
should

not

adopt

the

contradicted

allegations.”

(citations

omitted) (unpublished)).8
Additionally,

the

undersigned

recognizes

Court is required to liberally construe a

that

while

the

pro se litigant’s

pleadings, the Court does not have “license to serve as de facto
counsel for a party . . . or to rewrite an otherwise deficient
pleading in order to sustain an action.” GJR Invs., Inc. v.
Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)
(citations omitted), overruled on other grounds by Randall v.
Scott, 610 F.3d 701 (11th Cir. 2010); see also Giles v. Wal-Mart
Distrib. Ctr., 359 F.App’x 91, 93 (11th Cir. 2009) (internal
8

“Unpublished opinions are not considered binding precedent, but
may be cited as persuasive authority.” 11th Cir. R. 36-2.

12

citations and quotations omitted) (“Although pro se pleadings
are

held

to

lawyers

a

and

less
thus

strict
are

standard

construed

than

pleadings

liberally,

filed

this

by

liberal

construction does not give a court license to serve as de facto
counsel

for

a

party,

or

to

rewrite

an

otherwise

deficient

pleading in order to sustain an action.”).
Based upon a liberal construction of Jacoby’s complaint,
the

Court

construes

his

factual

allegations

as

asserting

an

excessive force claim based upon his altercation with Defendants
in January 2013, a claim that the conditions of his confinement
are

constitutionally

inadequate,

claims

that

his

due

process

rights were violated by the searches and disciplinary procedures
he faced, claims of retaliation by prison officials, and claims
that

the

Defendants

acted

with

deliberate

indifference

in

setting policies and procedures. The undersigned will discuss
each of these claims in turn individually below.
II.

DISCUSSION

A. Qualified Immunity
1. Official Capacity
It is well-established that, “suits against an official in
his or her official capacity are suits against the entity the
individual represents.” Parker v. Williams, 862 F.2d 1471, 1476

13

n.4 (11th Cir. 1989), overruled on other grounds in Turquitt v.
Jefferson County, 137 F.3d 1285, (11th Cir. 1998); see Monell v
Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 56
L.

Ed.

2d

611

(1978)(“[O]fficial

capacity

suits

generally

represent only another way of pleading an action against an
entity of which an officer is an agent.”); Farred v. Hicks, 915
F.2d 1530, 1532 (11th Cir. 1990). For the purposes of qualified
immunity,

it

is

not

disputed

that

Defendants

are

state

officials.
Thus, to the extent that Jacoby’s claims are against the
Defendants

in

their

official

capacities,

his

claims

are

effectively claims against the State of Alabama. The Supreme
Court has held that states and state officials are not “persons”
subject to liability pursuant to 42 U.S.C. § 1983. See Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105
L. Ed. 2d 45 (1989). Further, pursuant to the Eleventh Amendment
of the United States Constitution, a state’s own citizens may
not sue unless the state consents to suit or Congress acts to
abrogate immunity. See Carr v. Florence, 916 F.2d 1521, 1524-25
(11th Cir. 1990). There is nothing before the Court that suggests
that the State of Alabama has consented to the suit or that
Congress has acted to abrogate immunity. Accordingly, Defendants

14

have absolute immunity against the claims asserted against them
in their official capacities.
2. Individual Capacity
"Qualified
government

immunity

officials

sued

offers
in

complete

their

protection

individual

for

capacities

if

their conduct 'does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738, 73 L. Ed. 2d 396 (1982)). A law enforcement officer
is entitled to qualified immunity if "an objectively reasonable
officer in the same situation could have believed that the force
used

was not excessive." Id. Qualified immunity from suit is

intended

to

"allow

government

officials

to

carry

out

their

discretionary duties without the fear of personal liability or
harassing litigation, protecting from suit all but the plainly
incompetent or one who is knowingly violating the federal law."
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal
quotation marks and citations omitted).
Courts utilize a two-part framework to evaluate individual
capacity qualified immunity claims.
immunity

analysis

is

whether

the

15

One inquiry in a qualified
plaintiff's

allegations,

if

true, establish a constitutional violation. Hope v. Pelzer, 536
U.S. 730, 736, 122 S. Ct. 2508, 2513, 153 L. Ed. 2d 666 (2002)
(citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
2156, 150 L. Ed. 2d 272 (2001)). If the facts, construed in the
light

most

constitutional

favorable
right

to

has

the

been

plaintiff,

violated,

show

a

inquiry

another

that

is

whether the right violated was "clearly established." Saucier v.
Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 150 L. Ed. 2d 272
(2001). The Eleventh Circuit has observed that in determining
whether a right was “clearly established”, the courts do not
require a case directly on point; however, “existing precedent
must have placed the statutory or constitutional question beyond
debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct.
2074, 2083, 179 L. Ed. 2d 1149 (2011) (internal quotation marks
omitted). Id., at 741, 131 S. Ct. at 2083; see also Wilson v.
Blankenship,
citation
and

163

F.3d

1284,

omitted)(emphasis

abstractions

do

not

in

1288

(11th

Cir.

1998)(internal

original)(“General

qualify

for

bright

propositions

line,

clearly

established law. For qualified immunity to be surrendered, preexisting

law

must

dictate,

that

is,

truly

compel

(not

just

suggest or allow or raise a question about), the conclusion for
every

like-situated,

reasonable

government

16

agent

that

what

defendant is doing violates federal law in the circumstances.”).
Both

elements

of

official

to

lose

analysis

may

the

be

two

part

qualified
done

in

test

must

immunity,
whatever

be

and

order

present
this

is

for

an

two-pronged

deemed

most

appropriate for the case. Pearson v. Callahan, 555 U.S. 223, 129
S. Ct. 808, 821, 172 L. Ed. 2d 565 (2009).
Before applying the two-part test, the initial inquiry in a
qualified immunity case is whether the public official proves
"that

he

was

acting

within

the

scope

of

his

discretionary

authority when the allegedly wrongful acts occurred." Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation
marks

omitted).

In

this

case,

no

one

has

disputed

that

Defendants were acting within the scope of their discretionary
authority

as

jail

officials

at

the

time

of

the

incidents

asserted in the complaint. Thus, the inquiry before the Court is
whether qualified immunity is available as a defense to Jacoby’s
individual capacity claims.
For the reasons detailed below, the Court finds that no
genuine issue of material fact exists in support of Jacoby’s
claims

of

alleged

constitutional

violations,

and

that

the

Defendants are entitled to summary judgment on all claims as a
matter of law.

17

B. Excessive Force Claim
As

noted

supra,

Jacoby

contends

that

Defendants

used

excessive force when he was pepper sprayed on January 6, 2013,
and placed in a restraint chair for 8 and one-half hours without
being

properly

decontaminated.

The

analysis

of

an

excessive

force claim brought under § 1983 begins with determining the
specific

constitutional

right

allegedly

infringed

by

the

challenged application of force. Graham v. Conner, 490 U.S. 386,
394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The Fourteenth
Amendment prohibits the use of excessive force against pretrial
detainees, such as Jacoby 9 . See, e.g., Cottrell v. Caldwell, 85
F.3d 1480, 1490 (11th Cir. 1996) ("Claims involving mistreatment
of arrestees or pretrial detainees in custody are governed by
the Fourteenth Amendment's Due Process Clause[.]"). "In order to
determine whether the amount of force used by an . . . officer
was proper, a court must ask whether a reasonable officer would
believe that this level of force is necessary in the situation
at hand." Lee, 284 F.3d at 1197; see also Graham v. Connor, 490
U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
Thus,

the

Court

evaluates

pretrial

9

detainee

excessive

force

As noted, the record reflects that at the time of the
January/February 2013 incidents alleged in the Jacoby’s complaint, he
was a pretrial detainee at the Baldwin county jail.

18

claims under an objective reasonableness standard. Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473-74, 192 L. Ed. 2d 416 (2015);
see also Mobley v. Palm Beach Cty. Sheriff Dep't, 783 F.3d 1347,
1353

(11th

Cir.

reasonableness

2015)

standard

(explaining

"asks

whether

that
the

the

force

objective
applied

is

objectively reasonable in light of the facts confronting the
officer,

a

determination

we

make

from

the

perspective

of

a

reasonable officer on the scene and not with the 20/20 vision of
hindsight.").
In examining excessive force claims, courts should keep in
mind that "[o]fficers facing disturbances 'are often forced to
make

split-second

judgments—in

circumstances

that

are

tense,

uncertain, and rapidly evolving.'" Kingsley, 135 S. Ct. at 2474
(quoting Graham, 490 U.S. at 397). Furthermore, "a court must
take account of the legitimate interests in managing a jail,
acknowledging as part of the objective reasonableness analysis
that

deference

to

policies

and

practices

needed

to

maintain

order and institutional security is appropriate." Id.; Bell v.
Wolfish, 441 U.S. at 547 ("Prison officials must be free to take
appropriate

action

to

corrections personnel.");

insure

the

safety

of

inmates

and

Wilson v. Blankenship, 163 F.3d 1284,

1295 (11th Cir. 1998)("The courts will not normally "second-

19

guess prison officials on matters that they are better equipped
to handle under the exigencies of an internal disturbance.””).
Thus, an objective determination of unreasonableness must
be made from the perspective of a reasonable officer on the
scene,

and

includes

(citing

Graham,

account

for

government’s]

490

the

what

the

U.S.

officer

at

296).

“legitimate

need

to

knew
This

interests

manage

the

at

the

time.

determination
[stemming

facility

Id.
must
the

which

in

from

the

individual detained”, and must defer to “policies and practices
that

in

“preserve

th[e]

judgment”

internal

of

order

jail
and

officials

discipline

are

necessary

and

to

to

maintain

institutional security”. Id. at 2468, 2471-2473 (citing Bell v.
Wolfish, 441 U.S. 520, 540, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447).
The Court in Kingsley cited several factors that could be
helpful in this analysis. These include the relationship between
the need for force and the amount of force used, the extent of
the plaintiff’s injury, any effort made by the officer to limit
the amount of force used, the severity of the security problem
at issue, the threat reasonably perceived by the officer, and
whether the plaintiff was actively resisting. Kingsley, 576 S.Ct
at

2473.

These

factors

are

not

20

meant

to

be

exhaustive

or

exclusive,

only

an

illustration

of

the

types

of

objective

circumstances that could be potentially relevant. Id.
The use of chemical agents, mace, or the pepper spray has
been found not to violate the Eighth Amendment when its use is
reasonable

and

necessary

to

prevent

riots

and

to

subdue

recalcitrant prisoners. Williams v. Benjamin, 77 F.3d 756, 76263 (4th Cir. 1996) (finding that the spraying of mace in the
face and chest of a recalcitrant prisoner while in his cell did
not constitute cruel and unusual punishment because he had been
throwing water and refused to remove his arm from a food service
slot); Soto v. Dickey, 744 F.2d 1260, 1270-71 (7th Cir. 1984)
(upholding

the

use

of

mace

in

a

prisoner's

cell

because

he

refused to be handcuffed), cert. denied, 470 U.S. 1085, 105 S.
Ct. 1846, 85 L. Ed. 2d 144 (1985); Clemmons v. Greggs, 509 F.2d
1338,

1340

(5th

Cir.

1975)

(ruling

that

there

was

no

constitutional violation when mace was used during a disturbance
because there was no intent to punish), cert. denied, 423 U.S.
946, 96 S. Ct. 360, 46 L. Ed. 2d 280 (1975); Geas v. DuBois, 868
F. Supp. 19, 24 (D. Mass. 1994) (ruling that "'the use of nondangerous quantities of [a chemical agent] in order to prevent a
perceived

future

danger

does

not'

generally

overstep

constitutional parameters."); Blair-El v. Tinsman, 666 F. Supp.

21

1218,

1222

(S.D.

Ill.

1987)

(finding

that

officers

acted

reasonably when they sprayed a chemical spray into an inmate's
cell to quell a disturbance); cf. Ort v. White, 813 F.2d 318,
324 (11th Cir. 1987) (relying on the decision in Soto v. Dickey
in which chemical agents were used, to determine that the denial
of

water

was

an

immediate,

coercive

measure,

and

not

punishment). It is only a "violation of the Eighth Amendment
[Fourteenth Amendment] for prison officials to use mace or other
chemical agents in quantities greater than necessary or for the
sole purpose of punishment or the infliction of pain." Soto, 744
F.2d at 1270. "A limited application of mace may be 'much more
humane and effective than a flesh to flesh confrontation with an
inmate.'" Williams v. Benjamin, 77 F.3d 756, 763 (quoting Soto,
744 F.2d at 1262).
In

the

case

at

hand,

the

evidence

is

undisputed

that

officers used pepper spray on January 7, 2013. The undersigned
observes however that the events of January 7, 2013 cannot be
viewed in isolation.

Indeed, Defendants assert and Jacoby does

not dispute that prior to this incident, he had a number of
physical

encounters

with

staff

at

the

Baldwin

County

jail.

Indeed, in Jacoby v. Baldwin County, 596 Fed. Appx. 757 (llth
Cir. 2014), the Eleventh Circuit addressed Jacoby’s claim in

22

Jacoby

I

that

the

district

court

improperly

granted

summary

judgment on his claim that a Baldwin County jail official used
excessive force against him on December 22, 2011, when officers
used pepper spray to subdue him after he cut himself with a
razor blade even though he was lying on his cell floor bleeding
from his wounds. Jacoby also claimed that the officers failed to
decontaminate him for eight hours. In affirming the district
court’s grant of summary judgment in favor of the officers, the
court found that the officers were justified in their use of
pepper spray as Jacoby had previously “threatened violence in
addition to self harm,” and that the officers reasonably could
have believed Jacoby might use the razor in defense when the
officers approached him or that he might harm himself further.
Id. at 766.
Also, in Jacoby II, Jacoby asserted excessive force claims
against jail officials after he was sprayed with pepper spray on
April 13, 2012 and placed in a restraint chair for eight and
one-half hours.

In denying Jacoby’s excessive force claim, the

court found that just prior to the incident, Jacoby was upset,
yelling,

screaming,

and

demanding

an

officer’s

help

after

realizing some of his personal items had been removed from his
possession for the duration of his housing in segregation, and

23

that the defendant had warned him that if he did not cease the
disruption he would be put in segregation. Jacoby II, Civ. No.
12-366-CG-C, 2014 WL 2435655, 2014 U.S. Dist. LEXIS 74768 (S.D.
Ala Mar. 18, 2014).

The Court concluded that “given [Jacoby’s]

recalcitrant behavior, the initial use of force, the OC spray,
was reasonable and was used in good faith effort to maintain or
restore

discipline.”

Id.

at

13.

The

Court

also

found

no

constitutional violation with respect to the subsequent use of
the restraint restraint chair given that Jacoby admitted that he
was warned that he would be placed in the chair if he did not
obey orders, and stop yelling and kicking, and aside from some
burning from the spray, he suffered no injury and required no
medical care. Id. at 14. Thus, the Court concluded that Jacoby’s
persistent

hostile

reasonably

justified

behavior

while

Defendants

not

restrained

in

the

chair

releasing

him

sooner

or

releasing him to go to the restroom. Id. at 14-17.
In the case at hand, Jacoby contends that he did not do
anything to cause the officer to spray him. According to Jacoby,
when the officers entered his cell, he was laying on his stomach
in a defenseless position with his arms in the air.

The video

produced in discovery reflects that Jacoby was actually propped
on his knees and that his arms are not visable when officers

24

entered the cell and directed him to get down to the floor.
(Doc. 32-8). The video also shows that after a quick shot of the
pepper spray in the direction of the back of Jacoby’s head, he
is placed on the floor by officers, and his hands are then
handcuffed behind his back.

He is brought to his feet and

immediately led out of the cell to be decontaminated.
is

lead

down

officers

about

sprayed.
door

the

hallway,

why

they

he

came

can
into

be

heard

his

cell

As Jacoby

quarreling
and

why

with

he

was

When he is told that he refused to stop kicking the

when

he

was

directed

repeatedly kicking the door.

to

do

so,

Jacoby

does

not

deny

Instead, he questions whether that

was sufficient to warrant the officers entering his cell, and
spraying him. (Id.)
The video shows that Jacoby is taken to a closet area where
he

lends

over

a

sink,

and

an

officer

uses

a

water

hose

to

thoroughly rinse his face and the back of his head. The officer
then uses several towels to dry Jacoby’s face and the back of
his head.

While Jacoby might contend that the officers should

have given him more time to comply with their directive to get
to the floor, the undersigned will not second guess the actions
of

the

officers

in

maintaining

order

in

the

facility

given

Jacoby’s history of disruptive behavior and physical encounters

25

with the jail staff, his refusal to stop kicking the cell doors
when directed to do so, and the fact that upon entering the
cell, officers directed him to get down, but it does not appear
that he made any effort to do so before the pepper spray was
used 10. See Gardner v. Mack, 2015 U.S. Dist. LEXIS 25395, 2015 WL
877249 (S.D. Ala. Jan. 30, 2015)(“It is arguable [the defendant]
may have been successful in extracting Plaintiff from his cell
without the use of pepper spray, since Plaintiff appeared to be
surrendering to Defendant's will, but a single burst of the
chemical

agent

following

an

inmate's

failure

to

comply

with

orders, combined with his escalating obtrusive behavior, is not
the type of force that shocks the conscious or equates to an
Eighth Amendment violation.”). Under the circumstances of this
case, the undersigned finds that the use of a quick squirt of
pepper spray was reasonable and likely kept the situation from
further escalating.
With respect to the use of the restraint chair, Jacoby
contends that he was in the chair for 8 and one-half hours, that

10

The undersigned notes that a “Use of Force” form was completed
following the use of pepper spray, and after a review of the incident,
it was determined that the use of spray was appropriate under the
circumstances; however, a corporal was reprimanded because she
permitted a subordinate to use the spray when she had been instructed
that she was to personally handle the use of spray if necessary.
(Docs. 32-3, Doc. 32-7).

26

he

was

not

permitted

to

shower,

change

clothes

or

use

the

restroom, and as a result, his eyes, back and lower body were
burning from the spray, and he urinated on himself. The video
shows

that

Jacoby

was

clothed

in

short

pants,

and

that

immediately prior to being placed in the restraint chair, his
face and the back of his head were thoroughly rinsed.

(Doc. 8).

The video also reflects that the restraint chair was located in
an open hallway which makes for easy monitoring, and that Jacoby
continued to be argumentative and made known to officers his
displeasure with the decision to place him in the chair. (Id.)
And, Jacoby acknowledges that he kept crying out for a shower.
(Doc. 39 at 15).
Defendants contend that the restraint chair is never used
for punishment at the jail, but is instead used to ensure the
safety and security of the facility. (Doc. 32-1). According to
Defendants, Jacoby had a history of acting out when he thought
his situation was somehow unfair, or if he wanted attention,
even if it meant harming himself or putting others at risk.
(Doc. 32-3). According to Defendants, inmates such as Jacoby are
kept in the chair until it is determined that they can control
their behavior and no longer present a threat to themselves or
others. (Doc. 32-1).

27

The

undersigned

finds

that

Defendants

did

not

act

unreasonable in utilizing the chair given Jacoby’s history of
physical

confrontations

disruptive behavior.
Jacoby

had

been

with

the

staff,

self

injury

and

As noted, the day before the incident,

placed

in

administrative

segregation

while

officials investigated the tobacco that was found on his pod
area.

Apparently

upset

because

he

felt

he

was

unfairly

implicated in the incident, and placed in segregation, Jacoby
chose to act out by repeatedly kicking the door despite being
directed to stop.

Rather than allow the situation to escalate

with Jacoby, Defendants acted quickly to bring him under control
by placing him in the restraint chair 11 . (Doc. 32-3). Under these
circumstances,

where

Jacoby

suffered

no

injury,

aside

from

slight burning from a quick squirt of pepper spray, and required
no

medical

care,

the

undersigned

finds

that

the

use

of

the

restraint chair to preserve internal order and safety in the
facility was reasonable and thus, did not rise to the excessive
force.

Accordingly, Defendants are entitled to summary judgment

on Plaintiff’s excessive force claim.

11

There is nothing in the record that indicates that Jacoby was
charged with a disciplinary offense as a result of the incident on
January 7, 2013.
Instead, in utilizing the restraint chair, it
appears that officials were attempting to closely monitor Jacoby and
bring him under control.

28

C. Conditions of Confinement
Jacoby claims that the conditions of his confinement in FBlock

at

the

Baldwin

County

facility

are

constitutionally

inadequate. In support of this claim, he describes sleeping “in
a 1 or 2 man cell in the floor with 3 people in it because
segregation was overcrowded” and being “forced to sleep with
urine splattering on him, on his sheets with pubic hairs, body
hairs, and dirt all over him for 3 days because he was forced to
sleep on the floor”. (Doc. 1 at 5). He further claims that he
was “denied outside recreation for 3 days, periodicals to read,
and

the

opportunity

segregation

due

to

to
the

purchase
Baldwin

hygiene

products”

County

facility’s

while

in

policies

regarding inmates in segregation. (Id.). Additionally, he claims
he is a “serious to severe mentally ill inmate and should not be
housed under these extreme conditions” [i.e., segregation]. (Id.
at 6). The undersigned finds that Plaintiff’s claims regarding
the conditions of his confinement are barred by the doctrine of
res judicata as they have been litigated and decided adversely
against Jacoby in Jacoby I, Jacoby II, and Jacoby III, or they
could have been litigated in those actions.
“Res judicata is a judicially crafted doctrine, created to
provide finality and conserve resources.” Maldonado v. United

29

States AG, 664 F.3d 1369, 1375 (llth Cir. 2011); Polk v. Sears
Roebuck & Co., 2012 U.S. Dist. LEXIS 65050 (S.D. Ala. May 8,
2012).

“The

disputes
multiple

by

doctrine

facilities

reducing

the

lawsuits,

foster[ing]

reliance

the

expense

conclusive

and

vexation

conserv[ing]

judicial

on

action

judicial

resolution

by

of

attending

to

resources,
minimizing

and
the

possibility of inconsistent decisions.” Shurick v. Boeing Co.,
623 F. 3d 1114, 1116 (llth Cir. 2010).

Res judicata applies if

all of the following four elements are present: “(1) there is a
final judgment on the merits; (2) the decision was rendered by a
court of competent jurisdiction; (3) the parties, or those in
privy with them, are identical in both suits; and 4) the same
cause of action is involved in both cases.” Maldonado, 664 F. 3d
at 1375 (omitted citations).

If those elements are present,

“[t]he court next determines whether the claim in the new suit
was or could have been raised in the prior action; if the answer
is yes, res judicata applies. . .if even one of these elements
is missing, res judicata is inapplicable.” In Re Piper Aircraft,
244 F. 3d 1289, 1296 (11th Cir. 2001).
As noted supra, this is the fourth lawsuit that Jacoby has
filed against Defendant Mack and various individuals employed by
the Baldwin County jail.

In Jacoby II, Jacoby alleged that

30

while housed in segregation, he was denied visits, television,
books,

space

products,

to

walk

access

documents,

and

exercise,

to
to

access

materials
outside

to

grooming

write

recreation

and

letters

and

only

hygiene

or

legal

allowed

30

minutes of indoor recreation a day, and was housed in a “2-man”
segregation unit with three of four other inmates which forced
him to sleep on the floor beside the toilet where urine would
sometimes

“splatter”

on

his

sheets.

Upon

consideration,

the

Court in Jacoby II held that “[t]aking Plaintiff’s allegations
as true, there [has] not been an “extreme” deprivation of life’s
basic necessities evidenced nor a risk of serious harm”, and
that

“[e]ven

asserted

by

the

less

Plaintiff

unconstitutional.

than

does

Jacoby

II,

not

sanitary
rise

Civ.

No.

sleeping

to

the

arrangement

level

of

12-00366-CG-C,

2435655, 2014 U.S. Dist. LEXIS 74768 (Mar. 18, 2014).

being

2014

WL

See also

Jacoby III 2014 WL 2541834, 2014 U.S. Dist. LEXIS 81477 (S.D.
Ala. Mar. 18, 2014)(Jacoby’s claim that Sheriff Mack created
unconstitutional

policies

that

unnecessarily

deprived

him

of

periodicals, stationary, postage stamps, hygiene products, and
outdoor recreation while housed in the segregation unit “do not
amount to the denial of a basic human need”. . . “nor do they
evidence

a

deliberate

indifference

31

to

a

substantial

risk

of

serious harm to plaintiff’s health or safety.”).
this

action,

Jacoby

is

seeking

to

bring

many

Given that in
of

these

same

issues that were adversely decided against him in Jacoby II, and
Jacoby III, the undersigned finds that res judicata bars him
from relitigating those claims in this action.

While Defendant

Sheriff Mack is the only defendant in this action that was also
named in Jacoby II, and Jacoby III, the undersigned finds that
there is clear privity between the defendants with respect to
Jacoby’s claims regarding the conditions in segregation at the
Baldwin County facility.
Further, as held by the Court in Jacoby III, “Plaintiff’s
claim that Defendants Bryne and Mack breached his constitutional
rights by not having and not placing him in a separate facility
for

seriously-severely

mentally

ill

inmates

could

have

been

raised by Plaintiff in Jacoby I; therefore, that claim is also
barred.” Jacoby III, Civ. No. 12-00640-CG-N, 2014 WL 2641834,
2014

U.S.

Dist.

LEXIS

81477

(S.D.

Ala.

Mar.

18,

2014).

Accordingly, the undersigned finds that Defendants are entitled
to summary judgment on Jacoby’s claims regarding conditions at
the Baldwin County facility because those claims are barred by
res judicata.
D. Due Process

32

Jacoby also raises due process claims based upon the search
of

his

cell

proceedings

on

January

brought

27-29,

against

him

2013

and

the

disciplinary

regarding

the

incident

on

February 4, 2013. He claims that the hearing “was never recorded
for appellate purposes, the disciplinary was not notarized by a
notary as the form states it should be,

there was no hearing

notice date on the paperwork” and that he “never received a copy
of the disciplinary charges in a timely manner”. (Doc. 1 at 10).
According to Jacoby, he did not receive notice of the charges
until two days after the incident, and that he was written up on
a “bogus weapons charge because she [Sgt. Lovett] couldn’t find
nothing else to write Jacoby up for”. (Id.). As a result of this
hearing, Jacoby was put in segregation for thirty days. (Id.).
As an initial matter, the undersigned finds that Jacoby’s
claim that Defendants violated his rights because they do not
allow recording of the disciplinary hearings is subject to the
same ruling as in Jacoby III.
that

Plaintiff

alleged

could

not

inadequacies

in

In Jacoby III, the court held

prevail

on

Defendant’s

that

claim

because

disciplinary

the

hearing

procedures did not give rise to a constitutionally protected
liberty interest.

Jacoby III, Civ. No. 12-00640-CG-N, 2014 WL

2641834, 2014 U.S. Dist. LEXIS 81477 (S.D. Ala. Mar. 18, 2014)

33

With respect to Jacoby’s other claims, the Supreme Court
has specifically held that cell searches implicate neither the
Fourth nor the Fourteenth Amendment, but are “matter[s] lodged
in the sound discretion of the institutional officials.”
v.

Rutherford,

prison

468

disciplinary

U.S.

576,

590-91

proceedings

“are

(1984).
not

part

Block

Additionally,
of

a

criminal

prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply . . .In sum, there must be a
mutual accommodation between institutional needs and objectives
and

the

provisions

of

the

Constitution

that

are

of

general

application.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct.
2963, 2675, 41 L. Ed. 2d 935 (1974).

In recognition of these

principles, the Court has held that a prisoner must receive
notice of the charges against him prior to the hearing; he must
be allowed to call witnesses and present evidence, as long as
this

presentation

security

of

the

does

not

pose

institution,

a

and

threat
there

to

the

must

safety

be

a

and

written

finding. Id.
In
written

this
notice

action,
of

the

it

is

undisputed

charges

against

34

that
him,

Jacoby
and

was

received
able

to

prepare

a

full

defense

12

.

(Doc.

32-1).

The

fact

that

these

notices were not in Jacoby’s preferred form does not amount to a
deprivation

of

due

process.

Moreover,

the

only

consequence

Jacoby suffered because of the disciplinary proceedings against
him

was

transfer

to

disciplinary

segregation

with

an

accompanying loss of privileges.
Disciplinary segregation is not a “dramatic departure” from
the

ordinary

conditions

of

confinement

for

an

inmate,

and

therefore does not in and of themselves trigger specific due
process

procedures

like

those

required

in

a

criminal

trial.

Sandin v. Conner, 515 U.S. 472, 485 (1995), see also Rodgers v.
Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998)(affirming two
months in administrative segregation was not a constitutionally
protected

liberty

interest

requiring

the

protection

of

due

process); cf. Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th
Cir. 1996)(finding that twelve months of solitary confinement
was an atypical hardship of an inmate and created a liberty
interest entitled to due process protection). See Jacoby III,
2014

WL

2435655

segregation

and

at
45

*13

days

(brief
in

sentences

segregation

12

do

of
not

24

days

amount

to

in
a

The written Notice of Disciplinary form reflects that Jacoby
signed the notice and made a notation that he was not provided with a
copy of the form. (Doc. 32-7 at 4).

35

significant hardship and are not a dramatic departure from the
ordinary
existed

conditions
that

would

protection.).

of

confinement;

give

Because

rise

Jacoby

to

thus

no

liberty

constitutional

does

not

have

due

a

interest
process

protectable

interest, he cannot prevail on any due process claim. See, e.g.,
Sandin v. Conner, 515 U.S. at 485-86.
E. Retaliation
Jacoby
disciplinary

alleges

that

proceedings

he

was

because

subjected
Sgt.

to

Lovett

searches

“was

upset

and
over

Jacoby writing Grievances and Lawsuits on her and Filing for
Restraining Orders.” (Doc. 1 at 6). Jacoby has raised this same
issue albeit with respect to other individuals at the Baldwin
County facility, and the court had determined that there was no
evidentiary support for claims of retaliation. Jacoby II, 2014
WL 2435655 at *19, 2014 U.S. Dist. LEXIS 74768.

The same holds

true with respect to the instant petition. As observed in Jacoby
II,

to

succeed

on

a

claim

for

retaliation

under

§

Plaintiff:
“must allege (1) a specific constitutional right,
(2) the defendant’s intent to retaliate against the
prisoner for his or her exercise of that right, (3)
a retaliatory adverse act, and (4) causation.
McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.
1998). The inmate must allege more than his
personal
belief
that
he
is
the
victim
of
retaliation. Johnson v. Rodriguez, 110 F.3d 299,

36

1983,

a

310 (5th Cir.) cert denied, 522 U.S. 995, 118 S. Ct.
599, 139 L. Ed. 2d 400 (1997). Mere conclusory
allegations of retaliation will not be enough to
withstand a proper motion for dismissal of the
claim. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
1995). The inmate must produce direct evidence of
the motivation or, the more probable scenario,
“allege
a
chronology
of
events
from
which
retaliation
may
plausibly
be
inferred.’
Id.
(citation omitted).”
Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Jacoby
II, 2014 WL 2434655 at *19, 2014 U.S. Dist. LEXIS 74768. Jacoby
asserts that Sgt. Lovett ordered a “hit” on him which led to him
being sprayed with pepper spray on January 7, 2013, and that she
acted in order to retaliate against him for his many grievances
and lawsuits.
Jacoby

has

Aside from his conclusory allegations however,

not

offered

any

facts

that

suggest,

let

alone

demonstrate, that Defendant Lovett sought to retaliate against
him.

In fact, he has not even identified any specific grievance

or lawsuit that purportedly led Sgt. Lovett to take any type of
retaliatory action. And, he has only made vague allegations of
retaliation on the part of the other Defendants.
Neither

incident

comprising

the

alleged

retaliation

violated any of Jacoby’s rights. Indeed, it seems that Jacoby’s
main argument is that the actions central to this petition were
so

unjustified

that

there

was

37

no

other

reason

besides

retaliation to support them, but this is not evidence sufficient
to prevail on this claim

13

. Therefore, this claim is without

merit, and the Defendants are entitled to summary judgment with
respect to this claim.
e.
Jacoby
evidence

of

Policy and Procedure Claims
alleges
a

that

widespread

the

problems

problem

discussed

with

the

supra

are

policies

and

procedures in place at the Baldwin County jail. (Doc. 1 at 9).
To the extent possible, the court will analyze these claims as
allegations of supervisory liability with regard to Sheriff Mack
and Captain Bennett. On this subject, the Eleventh Circuit held:
[Supervisory] liability under section 1983 must be
based on something more than a theory of respondeat
superior. Supervisory liability occurs either when
the supervisor personally participates in the
alleged constitutional violation or when there is a
causal
connection
between
actions
and
the
supervising official and the alleged constitutional
violation. The causal connection can be established
when a history of widespread abuse puts the
13

Assuming arguendo there was a genuine issue of material fact as
to the retaliatory motives of the Defendants, the second step of the
objective analysis followed by the Eleventh Circuit would still
entitle the Defendants to summary judgment. Under this standard, once
the Plaintiff has met the burden of establishing that a protected
conduct was a motivating factor behind any harm, the burden shifts to
the defendant to show that he would have taken the same action in the
absence of the protected activity. Smith v. Mosley, 532 F.3d 1270,
1278 (11th Cir. 2008 (citations omitted). As discussed at length in
this order, the actions of all Defendants in this case were those of
reasonable officials, and it is reasonable to conclude that they would
have taken the same actions to maintain institutional security without
any allegedly improper motive.

38

responsible supervisor on notice of the need to
correct the alleged deprivation, and he fails to do
so.
Dolihite v. Maughon, 74 F.3d 1027, 1052 (11th Cir. 1996). As
Jacoby

has

cannot

not

established

establish

that

the

violation

Defendants

of

acted

any

rights,

with

he

deliberate

indifference in setting policy and procedures. See, e.g., Cagle
v. Sutherland, 334 F.3d 980, 989 (11th Cir. 2003).
Moreover, in Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009),
the Supreme Court stated:
In a section 1983 suit…where masters do not answer
for the torts of their servants – the term
‘supervisor
liability’
is
a
misnomer.
Absent
vicarious liability, each Government official, his
or her own title notwithstanding, is only liable
for his or her own misconduct.
Id.;

see

also

dissenting)(“Lest

Iqbal,
there

556
by

U.S.

any

at

mistake

693
in

(Souter,

these

words

J.
the

majority is not narrowing the scope of supervisor liability; it
is eliminating Bivens supervisory liability entirely.”).
In

order

to

establish

a

causal

connection

between

the

supervisor’s actions and the alleged constitutional violation, a
plaintiff must show either “a history of widespread abuse [that]
puts the reasonable supervisor on notice of the need to correct
the alleged deprivation” [which is the standard arguably altered
by

Iqbal]

or

an

inference

“that

39

the

subordinates

would

act

unlawfully and failed to stop them from doing so.” Keith v.
DeKalb

Cnty.,

Georgia,

2014)(citations

749

omitted).

F.3d

“The

1034,

(11th

1047-48

deprivations

that

Cir.

constitute

widespread abuse sufficient to notify the supervising official
must be obvious, flagrant, rampant, and of continued duration,
rather

than

isolated

occurrences.”

Id.

(citing

Hartley

v.

Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)).
Jacoby alleges generally that Defendants Mack and Bennett
were “aware of the problems with spray but won’t fix it” (Doc. 1
at 12), but he points to no evidence beyond his own grievances
to support this allegation. Further, the Court takes judicial
notice of the fact that in Jacoby’s three previous lawsuits
filed while housed at the Baldwin County jail, his excessive
force claims were found to be without merit. Additionally, the
record before this Court is devoid of any evidence suggesting
that

Defendants

Mack

or

Bennett

were

aware

of

a

pattern

of

constitutional infirmities in regard to Jacoby’s condition of
confinement at the facility, and there is no allegation that
either

Defendant

incidents.

was

Accordingly,

personally
Defendants

judgment on this claim.
III. CONCLUSION

40

involved
are

in

entitled

the

alleged

to

summary

For the reasons set forth above, the undersigned concludes
that Defendants are entitled to summary judgment in their favor
on all claims asserted against them by Jacoby.

Accordingly,

Defendants’ Motion for Summary Judgment is GRANTED, this action
is DISMISSED with prejudice, and judgment is entered in favor of
Defendants and against Plaintiff Brent Jacoby.
DONE and ORDERED this the 21st day of March 2016.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

41