Jacoby v. Mack et al

Filing 95

Order granting summary judgment in favor of Defendants Winky, McCants and Lovett with respect to the remanded claims of retaliation. Signed by Chief Judge Kristi K. DuBose on 04/03/2019. (Copy mailed to Plaintiff) (nah) Modified on 4/3/2019 (khc).

IN THE UNITED STATES DISTRICT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENT JACOBY,
Plaintiff,
vs.
SHERIFF HUEY MACK, et al.,
Defendants.

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CIVIL ACTION NO. 13-0070-KD-B

ORDER
Plaintiff Brent Jacoby brings this action pursuant to 42 U.S.C. § 1983, against Sheriff
Huey Mack, Captain Jimmie Bennett, Sgt. Janie Lovett, Corporal Hallanda Winky and Officer
Joshua McCants of the Baldwin County, Alabama Sheriff’s Department. This action is now
before the Court on remand from the Court of Appeals for the Eleventh Circuit (docs. 91, 92).1
I. Procedural background
On appeal, among other arguments, Plaintiff Brent Jacoby argued that this Court
improperly granted summary judgment with respect to his retaliation claims against Sergeant
1

The Eleventh Circuit affirmed summary judgment in favor of Mack and Bennett as to the
claims for supervisory liability and inadequate conditions of confinement and in favor of Mack,
Bennett, and Lovett as to the due process claims (doc. 91, p. 34-36; p. 32-34; p. 23-26). With
respect to the excessive force claims based upon the pepper spraying incident, the Eleventh
Circuit affirmed summary judgment in favor of Lovett but reversed summary judgment in favor
of Winky and McCants upon finding they were not entitled to qualified immunity (Id., p. 16-17,
n.13; p. 22-23). With respect to Plaintiff’s retaliation claims against Lovett, the Eleventh Circuit
affirmed the decision to grant summary judgment in her favor with respect to the pepper
spraying incident and institution of disciplinary proceedings and reversed the decision to grant
summary judgment in her favor with respect to searches of Plaintiff’s cell and person upon
finding a dispute of material fact as to whether Plaintiff’s filing grievances was a motivating
factor (Id., p. 30-32). The Eleventh Circuit found the district court did not address the retaliation
claim against Lovett for placing Plaintiff in segregation for tobacco products and remanded it for
consideration (Id., p. 28-29). The Eleventh Circuit found the district court did not address the
retaliation claims against Winky and McCants for the pepper spraying incident and remanded it
for consideration (Id., p. 26-27).

Lovett, Corporal Winky, and Officer McCants. The Eleventh Circuit found that this Court
erroneously construed Plaintiff’s complaint as alleging the retaliation claim only against Lovett.
Instead, Plaintiff asserted retaliation claims against Lovett “with respect to being sent to
segregation, the pepper spraying,” and “also McCants and Winky with respect to the pepper
spraying.” Jacoby v. Mack, - - - Fed. Appx. - - -, 2018 WL 5876984, at *10 (11th Cir. 2018)
(doc. 91, p. 26-27). Plaintiff’s “retaliation claims as to McCants’s and Winky’s involvement in
the pepper spraying” were remanded for consideration (doc. 91, p. 27). Plaintiff’s retaliation
claim against Lovett with respect to “sending him to segregation for tobacco products that were
not his” was also remanded for consideration (doc. 91, p. 29).
II. Findings of fact
Pursuant to the mandate rule,2 the relevant Findings of Fact are taken from the Factual
Background in the Eleventh Circuit’s opinion (doc. 91, p. 2-7, footnotes in original).
A. Placement in Administrative Segregation
On January 6, 2013, prison officials received a tip that tobacco—contraband
under jail policy—was located in the cell block to which Mr. Jacoby and several
other inmates were assigned. Prison officials searched the cell and located tobacco
taped to a string and hidden behind a door frame. All inmates who could have
been implicated in this incident, including Mr. Jacoby, were taken to
administrative segregation, even though another inmate confessed that the tobacco
belonged to him. Mr. Jacoby was ultimately found not guilty of possession of
contraband at a disciplinary hearing.
2

“The mandate rule is a specific application of the ‘law of the case’ doctrine which provides that
subsequent courts are bound by any findings of fact or conclusions of law made by the court of
appeals in a prior appeal of the same case.” CSX Transportation, Inc. v. Alabama Dep't of Revenue,
888 F.3d 1163, 1173–74 (11th Cir.), opinion modified on denial of reh'g, 891 F.3d 927 (11th Cir.
2018) (citation omitted). “That rule ‘has its greatest force when a case is on remand to the district
court.’” Id. (citation omitted). “A district court ‘must implement both the letter and the spirit of the
mandate taking into account the appellate court's opinion and the circumstances it embraces.’”
Id. (citation omitted). “Although a district court is ‘free to address, as a matter of first impression,
those issues not disposed of on appeal,’ it is ‘bound to follow the appellate court's holdings, both
expressed and implied.’” Id. (citation omitted).
2

...
B. Pepper Spraying, Decontamination, and Restraint
On January 7, 2013, the day after Mr. Jacoby was placed in administrative
segregation, Appellee Officer McCants (“McCants”) watched Mr. Jacoby kick his
cell door several times. McCants instructed Mr. Jacoby to stop kicking the door,
but when McCants walked away Mr. Jacoby kicked the door again and said,
“McCants you’re not going to do nothing.” McCants then contacted floor
supervisor Appellee Corporal Hallanda Winky (“Winky”) about this incident.
Winky informed Appellee Sergeant Lovett (“Lovett”) that Mr. Jacoby was being
disruptive and refusing to follow instructions. Lovett instructed Winky to remove
Mr. Jacoby from his cell and to spray him with pepper spray if he continued to be
combative and refuse to follow instructions. Lovett neither observed Mr. Jacoby’s
behavior nor was present when Mr. Jacoby was removed from his cell.
A video recording, lasting approximately six and a half minutes, captures what
occurred next. Winky, standing among a group of officers, directs the group to
remove Mr. Jacoby from his cell and states, “I’ll tell y’all like this. You already
got permission, you know what to do.” One officer asks another, “you want to
spray him?” The group of at least six officers proceeds up the stairs and stops at
Mr. Jacoby’s cell, which is occupied by three inmates including Mr. Jacoby.
When the officers open the cell door, Mr. Jacoby is on the floor of the cell, with
his knees bent under his body and the top half of his body bending forward and
touching the floor. Mr. Jacoby is clad in pants rolled up into capris and is not
wearing a shirt, socks, or shoes. The camera’s view is obscured by officers
standing partially in front of it, so the location of Mr. Jacoby’s hands is not
pictured. The other two inmates, one sitting on a top bunk bed and another sitting
on a bottom bunk bed, are instructed to leave and do so. As the other inmates are
leaving the cell, McCants and another officer step into the cell and Officer
McCants is heard saying “lay down, Jacoby,” 2 to which Mr. Jacoby responds “I
am.” Mr. Jacoby remains in the same position on the floor, with his knees bent
under him. The video records McCants saying “down” and another officer saying
“hands behind your back” in rapid succession.3 The location of Mr. Jacoby’s
hands is still not pictured in the video recording. The parties do not dispute,
however, that Mr. Jacoby’s hands were not behind his back at this time.4 Less
than a second later, McCants begins spraying Mr. Jacoby and continues to do so
for approximately two seconds.5 The next time Mr. Jacoby is visible in the video,
he is lying flat on the floor, face down, with his hands behind his back as
3

McCants is handcuffing him and helping him stand. Mr. Jacoby is then heard
saying, “What’d you do that for?”
McCants and the group of officers then lead Mr. Jacoby, whose back is
glossy—visibly wet from the spray—down the stairs. Mr. Jacoby argues about
kicking the door and the use of the pepper spray, stating, “Seriously? You sprayed
me for that?” As he is being led to decontaminate, Mr. Jacoby threatens to sue all
of the officers involved, states that what just occurred was an unnecessary use of
force, and complains about being “locked up for somebody else’s tobacco.” Mr.
Jacoby is directed to a large sink in a closet, where McCants hoses off his face
and head—but not his back—for approximately forty-five seconds and wipes his
face off with paper towels. Mr. Jacoby asks to be further decontaminated, stating,
“That’s all I get? I need some more, man, please. Get my eyes again.”
Mr. Jacoby is led to a four point restraint chair and is pictured squinting and
shaking his face as if to dry it off. Mr. Jacoby complains about being sprayed
while lying down, stating, “If I had known that, you could have at least let me
turn around and fight you or something. I don’t deserve to be sprayed.” As Mr.
Jacoby is placed in the arm restraints he is seen wiping his eyes on his pants and
an officer approaches and says, “You don’t want to rub them, I promise, it’ll be
worse.” Once fully restrained, Mr. Jacoby requests to be further decontaminated
and requests clean pants and boxers. An officer responds, “We’re going to take
care of you.” At this point, the video ends.
Mr. Jacoby, in his verified complaint, states that he remained in the restraint chair
for eight and a half hours and that he was unable to use the bathroom or change
his clothes during this time.6 Mr. Jacoby asserts that the burning sensation
caused him to cry out for water and to scream in agony, but no one addressed his
concerns and he was forced to urinate on himself. After being released from the
chair after eight and a half hours, Mr. Jacoby was not provided access to a shower
or clean clothes until about eighteen hours after he was pepper sprayed. Appellees
do not dispute—and do not address whatsoever—these facts regarding Mr. Jacoby
being pepper sprayed on the back but only decontaminated on his face and head,
the length of his time in the restraint chair, his inability to use the bathroom, his
cries for help, or the length of time he waited to shower and to receive clean
clothes. These facts are accordingly not in dispute for purposes of summary
judgment.7
2

In McCants’s activity report narrative he states that he directed
Mr. Jacoby more specifically to lie down on his stomach.
4

Similarly, in Winky’s officer statement, she states that Mr. Jacoby
was directed to lie flat. Both of these assertions are belied by the
video documenting the entire encounter in Mr. Jacoby’s cell.
“Where the video obviously contradicts [a party’s] version of the
facts, we accept the video’s depiction instead of [the party’s]
account.” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315
(11th Cir. 2010) (citing Scott v. Harris, 550 U.S. 372, 127 S.Ct.
1769, 1776 (2007)).
3

In McCants and Winky’s affidavits they both state, however, that
Mr. Jacoby was instructed to put his hands behind his head and did
not do as instructed prior to being sprayed. Again, these assertions
are contradicted by the video in which Mr. Jacoby is instructed to
put his hands behind his back. We accordingly decline to accept
McCants’s and Winky’s contrary assertions.
4

Both McCants in his activity report narrative and Winky in her
officer statement state that Mr. Jacoby’s hands were not behind his
back prior to being sprayed. Jacoby, in his verified response to
Appellees’ motion for summary judgment, merely states that his
hands and arms were visible prior to being sprayed. Accordingly,
Mr. Jacoby has not created a genuine dispute as to this factual
matter.
5

Winky was written up for allowing a subordinate officer to spray
Mr. Jacoby because Lovett had specifically ordered that Winky
spray Mr. Jacoby if necessary.
6

Mr. Jacoby’s initial complaint is verified and therefore, “may be
treated as an affidavit on summary judgment[.]” United States v.
Four Parcels of Real Prop. In Greene & Tuscaloosa Ctys., 941 F.
3d 1428, 1444 n.35 (11th Cir. 1991).
7

As we have previously recognized, what we state as “facts” for
purposes of reviewing a summary judgment motion may not be the
actual facts determined in further proceedings. Swint v. City of
Wadley, 5 F.3d 1435, 1439 (11th Cir. 1993), overruled on other
grounds by Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 115 S.
Ct. 1203 (1995).
5

(Doc. 91, p. 2-7).
III. Conclusions of law
A. Summary judgment standard
“Summary judgment is appropriate if there are no genuine issues of material fact, and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of
material fact exists when ‘the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Jacoby v. Mack, 2018 WL 5876984, at *4 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986)) (doc. 91, p. 10).
“[I]n the qualified immunity context, ‘[w]e resolve all issues of material fact in the
plaintiffs’ favor and approach the facts from the plaintiffs’ perspective because [t]he issues
appealed here concern not which facts the parties might be able to prove, but, rather, whether or
not certain given facts showed a violation of clearly established law.’” Id. (quoting Terrell v.
Smith, 668 F.3d 1244, 1250 (11th Cir. 2012) (citation omitted)) (doc. 91, p. 11). “To overcome
summary judgment where qualified immunity is at issue, ‘the facts in dispute must raise a
genuine issue of fact material to the determination of the underlying issue.’” Id. (citation
omitted).
B. Qualified Immunity
“[Q]ualified immunity completely protects government officials performing
discretionary functions from suit in their individual capacities unless their conduct violates
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (internal quotation marks and
citation omitted). “The purpose of qualified immunity is to allow officials to carry out
discretionary duties without the chilling fear of personal liability or harrassive litigation,
6

protecting from suit all but the plainly incompetent or one who is knowingly violating federal
law.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (internal quotation marks
and citation omitted).
“In order to receive qualified immunity” Defendants “must first establish that [they were]
acting within the scope of [their] discretionary authority when the alleged wrongful acts
occurred.” Id. If Defendants make this showing, the burden shifts to Plaintiff to show that they
are not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2004)
(Once that showing is made, the burden shifts to plaintiff to establish that qualified immunity
does not apply). To do so, Plaintiff must “show[ ] (1) that [Defendants] violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the challenged
conduct.” Wood v. Moss, ––– U.S. ––––, 134 S. Ct. 2056, 2066-67 (2014) (internal quotation
marks and citation omitted).
IV. Analysis
A. Defendants Winky and McCants
1. Plaintiff’s claims and argument
In his verified complaint,3 Plaintiff claims that McCants (John Doe #1) engaged in
“retaliatory treatment” because he “came into Jacoby’s cell per Sgt Lovetts orders and opened
fire on Jacoby with mace for no reason and left him in a restraint chair to burn for 8½ hours
without being properly decontaminated” (doc. 1, p. 15). He claims that Winky (John Doe #2)

3

The Eleventh Circuit found that Plaintiff’s initial complaint, although superseded by an
amended complaint, was verified and “may be treated as an affidavit on summary judgment[]”
(doc. 91, p. 7, n. 6).
7

engaged in “retaliatory treatment” because she “stood by and watched [McCants] spray Jacoby
for no reason and refused to decontaminate him and strapped him to a chair for nothing” (Id.).4
In response to the motion for summary judgment, Plaintiff argues that Lovett “ordered”
McCants and Winky to spray him “with pepper spray and to strap him to a chair for 8 hours
without properly decontaminating him for retaliatory reasons with every intention of hurting him
due to him being a jailhouse lawyer and filing grievances and lawsuits” (doc. 39, p. 1). He states
that “[d]uring his 2 year stay he was known as a jailhouse lawyer and filed numerous grievances
and lawsuits on his and other inmates behalf and because of this [he] was constantly harassed
and retaliated against” (Id. p. 4). Plaintiff asserts that he did nothing wrong to justify the pepper
spray incident and as evidence, points out that he was not given a disciplinary or a rule violation
(Id., p. 5). He alleges that the “attack … was premeditated and strictly done for retaliatory
reasons with all intentions of causing him harm” and that Defendants “had it in [their] minds to
spray [Plaintiff] per the orders of Lovett” (Id., p. 6).

Overall, Plaintiff argues that he “clearly

connected the dots from Point-A to Point-Z and showed this court the constant harassing,
searches, disciplinaries and assaults [Lovett] has been part of in regards to her (Sgt Lovett)
retaliating against” him (sic) (Id., p. 21).
2. Qualified immunity
Winky and McCants argue that they were acting within the scope of their discretionary
authority at all relevant times. Plaintiff does not dispute their position (doc. 91, p. 12, n.11).
McCullough v. Antolini, 559 F.3d at 1205. The first element having been met, the burden shifts
to Plaintiff to show that Winky and McCants are not entitled to qualified immunity. Cottone v.
4

Plaintiff included more details regarding the pepper spraying, decontamination and restraint in
the unverified amended complaint (doc. 38-1).
8

Jenne, 326 F.3d at 1358. To do so, Plaintiff must show that Winky and McCants (1) “violated a
statutory or constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.” Wood v. Moss, 134 S. Ct. at 2066-67 (internal quotation marks and citation
omitted).
a. Clearly established constitutional right
Filing inmate grievances and lawsuits is a clearly established right of free speech that is
constitutionally protected under the First Amendment. Hollins v. Samuals, 540 Fed. Appx. 937,
938–39 (11th Cir. 2013) (“We've routinely held that a prisoner's complaints about prison
conditions, via administrative grievances, lawsuits, and the like are protected under the First
Amendment.”); Jacoby v. Mack, 2018 WL 5876984, at *10–11 (“The First Amendment prohibits
prison officials from retaliating against prisoners for exercising their right of free speech by
filing lawsuits or grievances.”).
b. Violation of Plaintiff’s First Amendment Rights
“When officers punish an inmate for filing grievances concerning the conditions of his
confinement, they violate the inmate’s First Amendment rights to free speech and to petition the
government for redress of grievances.” Maldonado v. Unnamed Defendant, 648 Fed. Appx. 939,
955 (11th Cir. 2016). Thus, the Plaintiff may
. . . maintain a cause of action for retaliation under 42 U.S.C. § 1983 by showing
that a prison official’s actions were “the result of [the inmate’s] having filed a
grievance concerning the conditions of his imprisonment.” To establish a First
Amendment retaliation claim, a prisoner need not allege the violation of an
additional separate and distinct constitutional right; instead, the core of the claim
is that the prisoner is being retaliated against for exercising his right to free
speech. To prevail on a retaliation claim, the inmate must establish that: “(1) his
speech was constitutionally protected; (2) the inmate suffered adverse action such
that the [official’s] allegedly retaliatory conduct would likely deter a person of
ordinary firmness from engaging in such speech; and (3) there is a causal
9

relationship between the retaliatory action [the disciplinary punishment] and the
protected speech [the grievance].”
Jacoby v. Mack, 2018 WL 5876984, at *11 (quoting O’Bryant, 637 F. 3d at 1212) (doc. 91, p.
28); see also Bennett v. Hendrix, 423 F. 3d 1247, 1254 (11th Cir. 2005) (adopting the objective
“ordinary firmness” test). “The causal connection inquiry asks whether the defendants were
subjectively motivated to discipline because [Plaintiff] complained of some of the conditions of
his confinement.” Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008).
To resolve the question of subjective motivation, courts have applied the Mt. Healthy
burden-shifting analysis. Id., (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 97 S. Ct. 568 (1977)). “‘[O]nce the plaintiff establishes that the protected conduct was a
motivating factor behind the harm, the burden of production shifts to the defendant. The
defendant can prevail on summary judgment if it can show it would have taken the same action
in the absence of the protected activity.’” Jacoby v. Mack, 2018 WL 5876984, at *11 (quoting
Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013)) (doc. 91, p. 28).
Plaintiff has met the first element. He established that filing grievances and lawsuits is
constitutionally protected speech. Jacoby v. Mack, 2018 WL 5876984, at *11 With respect to the
second element and for purposes of this summary judgment analysis,5 the Court finds that a
person of ordinary firmness would find Winky’s and McCants’s alleged actions, a deterrent to
filing grievances and lawsuits. Henry v. Lipford, 2014 WL 2779588, at *7 (N.D. Fla. June 19,
2014) (“For purposes of summary judgment the Court concludes that being pepper sprayed in

5

The Eleventh Circuit explained that “what we state as ‘facts’ for purposes of reviewing a
summary judgment motion may not be the actual facts determined in further proceedings.”
Jacoby v. Mack, 2018 WL 5876984, at *3, n. 7.
10

response to filing grievances would likely deter a person of ordinary firmness from filing
grievances against prison staff.”).
With respect to the third element, a “causal relationship between” the pepper spraying
incident and the “protected activity”, the “inquiry asks whether the defendants were subjectively
motivated to discipline because [Plaintiff] complained of some of the conditions of his
confinement.” Smith v. Mosley, 532 F.3d at 1278. McCants and Winky argue that Plaintiff has
not presented any evidence of a subjective retaliatory motive on their part, and that his
conclusory allegations based on his assumptions as to their motivation are not enough to
establish a causal relationship and thus, a constitutional violation (doc. 68, p. 16).
The Court agrees. Plaintiff has failed to provide any evidence that his history of filing
grievances and lawsuits was a motivating factor with respect to Winky’s and McCants’s
involvement in the pepper spraying incident. He fails to identify any specific lawsuit or
grievance that may have led them to retaliate against him,6 but rather he relies on his activities
as a jailhouse lawyer. “The situation is somewhat complicated when the alleged act of retaliation
is undertaken to assure compliance with prison rules and regulations as inmates often attempt to
‘inappropriately insulate themselves from [such] actions by drawing the shield of retaliation
around them.’” Webb v. Boyd, 2017 WL 603005, at *6 (M.D. Ala. Jan. 23, 2017), report and
recommendation adopted, 2017 WL 600090 (M.D. Ala. Feb. 14, 2017) (quoting Woods v. Smith,
6

The Eleventh Circuit found that Plaintiff had not “presented any evidence of Lovett having
retaliatory animus as to the pepper spraying” and that this Court had properly granted
Defendants’ motion for summary judgment (doc. 91, p. 30). In reaching the decision to grant
summary judgment, this Court found that “[a]side from his conclusory allegations [Plaintiff] has
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.” Jacoby v. Mack, 2016 WL 1117525, at *12
(S.D. Ala. Mar. 22, 2016).
11

60 F.3d 1161, 1166 (5th Cir. 1995) (bracketed text in original).7 When this shield is drawn, the
federal courts must “carefully scrutinize retaliation claims . . . because virtually any adverse
action taken against a prisoner by a prison official—even those otherwise not rising to the level
of a constitutional violation—can be characterized [by the prisoner] as a constitutionally
proscribed retaliatory act.” Mosley v. Borders, 2016 WL 2765071, at *8 (M.D. Ala. Apr. 15,
2016), report and recommendation adopted sub nom. Mosley v. M. Borders, 2016 WL 2640524
(M.D. Ala. May 9, 2016) (bracketed text in original).
Without evidence to support his conclusory assumption that Winky and McCants were
motivated to retaliate against him, Plaintiff has failed to meet his burden to establish a violation
of his First Amendment rights. Jacoby v. Baldwin Cty., 666 Fed. Appx. 759, 762 (11th Cir. 2016)
(“This court has consistently held that conclusory allegations [in an affidavit] without specific
supporting facts have no probative value.”); Webb v. Boyd, 2017 WL 603005, at *6 (“Merely
alleging the ultimate fact of retaliation, however, is insufficient. [ ] Additionally, conclusory
allegations are insufficient to demonstrate the existence of each element requisite to establishing
retaliation.”) (internal citations omitted). Therefore, Winky and McCants are entitled to qualified
immunity and summary judgment is granted in their favor as to this claim.8

7

Plaintiff alleges that he did nothing wrong to bring about the pepper spraying incident, and
from that position, he argues that Lovett ordered a “hit” on him and that McCants and Winky
carried out the orders. From his assumption that these events occurred, Plaintiff concludes that
Winky and McCants had a retaliatory motive (doc. 39, p. 5). However, the Eleventh Circuit
found that McCants contacted Winky because Plaintiff would not stop kicking the cell door.
Winky informed Lovett that Plaintiff “was being disruptive and refusing to follow instructions”
from McCants. “Lovett instructed Winky to remove Mr. Jacoby from his cell and to spray him
with pepper spray if he continued to be combative and refuse to follow instructions.” (Doc. 91, p.
3-4).
8

Plaintiff did not argue that Winky and McCants retaliated against him because he threatened to
sue the officers while on the way to decontamination (doc. 1, complaint: doc. 38-1, amended
12

B. Defendant Lovett
1) Plaintiff’s claims and arguments regarding placement in Segregation
The Eleventh Circuit summarized Plaintiff’s claims against Lovett, as follows:
Mr. Jacoby, in his amended complaint, contends that he was sent to segregation
when contraband tobacco was located in his cell, even after another inmate
confessed that the tobacco was his. Mr. Jacoby further contends that he and the
inmate that confessed to possessing the tobacco were taken to segregation while
the other inmates in his cell who could have been implicated in the infraction
were allowed to stay in general population. The district court did not address this
allegation in its opinion, despite it being raised in both Mr. Jacoby’s initial
complaint and his amended complaint. Mr. Jacoby’s verified response[9] in
opposition to Defendants’ motion for summary judgment before the district court
similarly outlined facts that Lovett placed Jacoby in lockup for tobacco that
another inmate admitted to owning. Further, despite Appellee’s contention that
Mr. Jacoby “never mentioned any other persons who were supposedly treated
differently than he” with respect to this incident, Mr. Jacoby’s verified
response[10] states that “he was the only inmate locked up despite the fact that he
shared a cell with three other inmates.” Accordingly, this claim will be remanded
to the district court for consideration.
(Doc. 91, p. 29).

11

complaint; doc. 39 response to the motion for summary judgment). As with his excessive force
claim, (doc. 91, p. 15, n.12), Plaintiff alleged a single retaliation claim against Winky and
McCants.
9

The Eleventh Circuit found that Plaintiff’s response was verified (doc. 91, p. 10, n. 9).
However, at the end of the response, Plaintiff merely states “Respectfully Submitted, Brent
Jacoby Pro Se” (doc. 39, p. 21). He did add a signed Certificate of Service, wherein he states:
“I declare under penalty of perjury that on this 19th day of Dec. 2014 I did place a summary
judgment reply to my mother . . . to make copies and send to this court and Jamie Kidd
(Defendants Attorney)” (Id., p. 22).
10
11

See footnote 9.

In his original complaint, Plaintiff states that his Cell mate “went to segregation with him” but
was “released from Segregation after only spending 10 minutes in Segregation per Sgt Lovett
because the cigarette wasn’t his but yet Jacoby was kept in Segregation until his hearing despite
the fact the cigarette did not belong to Jacoby or his Cellmate” (doc.1, p. 5). In his amended
13

2. Qualified immunity
On motion for summary judgment, Defendant Lovett argues she is entitled to qualified
immunity because she was acting within her discretionary authority and Plaintiff cannot show
any violation of his clearly established constitutional rights (doc. 32, p. 16-19). Plaintiff does not
dispute that Lovett was acting within her discretionary authority (doc. 91, p. 12, n.11).
McCullough v. Antolini, 559 F.3d at 1205. The first element having been met, the burden shifts
to Plaintiff to show that Lovett is not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d
at 1358. To do so, Plaintiff must show that Lovett (1) “violated a statutory or constitutional right,
and (2) that the right was clearly established at the time of the challenged conduct.” Wood v.
Moss, 134 S. Ct. at 2066-67 (internal quotation marks and citation omitted).
a. Clearly established constitutional right
Filing inmate grievances and lawsuits is a clearly established right of free speech that is
constitutionally protected under the First Amendment. Hollins v. Samuals, 540 Fed. Appx. at
938–39) (“We've routinely held that a prisoner's complaints about prison conditions, via
administrative grievances, lawsuits, and the like are protected under the First Amendment.”);
Jacoby v. Mack, 2018 WL 5876984, at *10–11 (“The First Amendment prohibits prison officials
from retaliating against prisoners for exercising their right of free speech by filing lawsuits or
grievances.”).

complaint, Plaintiff states that “Inmate Purdue admitted to …Sgt. Lovett that the cigarette was
his … Needless to say, Sgt. Lovett and Corporal Spencer took Jacoby to segregation anyways
with inmate Purdue – and Sgt. Lovett let the other 3 inmates that Jacoby shared the cell with stay
in population with no disciplinary infractions” (doc. 38-1, p. 1). Even though the versions of the
facts vary, the variance is not material. In either scenario, Plaintiff alleges that after inmate
Purdue confessed ownership, other inmates were treated differently from him. From this,
Plaintiff infers a retaliatory motive.
14

b. Violation of Plaintiff’s First Amendment Rights
The Eleventh Circuit found that the parties “are in agreement as to the first two elements”
of Plaintiff’s First Amendment retaliation claims against Lovett– that he engaged in
constitutionally protected speech and the alleged retaliatory conduct by Lovett would deter a
person of ordinary firmness from engaging in the protected speech (doc. 91, p. 28-29). However,
the parties disagreed “as to whether [Plaintiff] has established a causal relationship between
Lovett’s complained of conduct and [his] filing of grievances and lawsuits.” (Id.) “With these
guiding principles in mind”, the Eleventh Circuit considered the arguments underlying Plaintiff’s
retaliation claims against Lovett. (Id., p. 29). Therefore, this Court begins its analysis by
addressing whether Plaintiff has alleged sufficient facts, taken as true and viewed in the light
most favorable to him, establish a causal relationship between Lovett’s placement of Plaintiff in
Segregation and his filing of grievances and lawsuits.
In response to the motion for summary judgment, Plaintiff alleges that he is “known as a
jailhouse lawyer and [has] filed numerous grievances and lawsuits on his own and other inmates
behalf” (doc. 39, p. 4). Because of these activities, he was “constantly harassed and retaliated
against with … bogus disciplinary charges in order to keep him confined in lockup” and “hamper
his ability to pursue his non frivolous legal actions” (Id., p. 4-5). He asserts that on January 6,
2013, Lovett had him “locked up for a bogus smoking and contraband charges despite the fact no
contraband was found in his possession and another inmate admitted ownership” (Id., p. 5).
Plaintiff argues that because his three cellmates, who also had access to the contraband, were not
locked up “this has clear harassment and retaliation wrote all[] over it.” (Id., p. 1, 5). Plaintiff
supports his “retaliatory treatment” claims by alleging that “Lovett threw Jacoby in segregation
and not his cellmates for tobacco despite the fact she knew it wasn’t his.” (Id., p. 14). He argues
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that he “clearly connected the dots from Point-A to Point-Z and showed this court the constant
harassing, searches, disciplinaries and assaults [Lovett] has been part of in regards to her (Sgt
Lovett) retaliating against” Plaintiff (Id., p. 21). At the disciplinary hearing, held three days later,
on January 9, 2013, Plaintiff was found not guilty and returned to Population (doc. 1, p. 7).
Lovett argues that Plaintiff did not identify any particular grievance or lawsuit that would
have led her to take retaliatory action (doc. 32, p. 33). Lovett argues that Plaintiff relies on
“vague allegations that he was subjected to searches and disciplinary proceedings because [she]
was ‘upset over Jacoby writing Grievances and Lawsuits on her and Filing for Restraining
Orders.” (Id., quoting Doc. 1, p. 6). Lovett points out that she had never been named a defendant
in any of Plaintiff’s lawsuits before this action. (Id.)12
Plaintiff’s conclusory assumption that Lovett acted with a retaliatory motive because she
treated other inmates differently is not sufficient to establish retaliation. Plaintiff fails to identify
any specific lawsuit or grievance that may have motivated Lovett, but rather he relies on his
activities as a jailhouse lawyer. Also, at that time, Plaintiff had not filed a lawsuit against Lovett.
“Without any evidence that his filing grievances was a motivating factor behind [placement in
segregation], a reasonable jury could not return a verdict in his favor on this retaliation claim.”
Jacoby v. Mack, 666 Fed. Appx. at 762. Again, Plaintiff cannot “insulate” himself from
“disciplinary actions by drawing the shield of retaliation around them[.]” Woods v. Smith, 60
F.3d at 1166. And as previously stated, when this shield is drawn, the federal courts must
“carefully scrutinize retaliation claims . . . because virtually any adverse action taken against a
prisoner by a prison official—even those otherwise not rising to the level of a constitutional

12

In her affidavit, Lovett states that she does “not have any personal feelings of ill will toward
Plaintiff, nor … any reason to attempt to ‘retaliate’ against him.” (doc. 32-3, ¶ 11).
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violation—can be characterized [by the prisoner] as a constitutionally proscribed retaliatory act.”
Mosley v. Borders, 2016 WL 2765071, at *8 (bracketed text in original).
However, assuming for purposes of summary judgment,13 that Plaintiff could establish a
causal relationship between his placement in Segregation and his protected activity on basis that
he was kept in Segregation while his cellmates returned to or stayed in Population, Lovett has
met her burden to show that she would have taken the same action even without the protected
activity. Jacoby v. Mack, 2018 WL 5876984, at *11 (“‘[O]nce the plaintiff establishes that the
protected conduct was a motivating factor behind the harm, the burden of production shifts to the
defendant. The defendant can prevail on summary judgment if it can show it would have taken
the same action in the absence of the protected activity.’”) (quoting Smith v. Fla. Dep’t of Corr.,
713 F.3d 1059, 1063 (11th Cir. 2013)) (doc. 91, p. 28).
Lovett asserts that “Plaintiff has not been retaliated against because he filed previous
lawsuits” but instead “[a]ll actions taken vis-à-vis Plaintiff have been based on Defendants’ best
judgment as to how to preserve the safety and security of the facility and all visitors, staff, and
inmates” and to “is a protective measure designed to guard against potential fights and/or
disputes over fault” (doc 32, p. 5-6). Lovett asserts that she “ordered that all inmates who could
be implicated in this incident, including Plaintiff and his cellmate, to be taken to administrative
segregation while the investigation was completed” and that this “order was in accordance with
the general policy that any inmate who might be implicated in an offense be placed in

13

When addressing a qualified immunity argument, the court must “resolve all issues of
material fact in the plaintiffs’ favor and approach the facts from the plaintiffs’ perspective” to
ascertain “whether or not certain given facts showed a violation of clearly established law.’”
Jacoby v. Mack, 2018 WL 5876984, at *4 (quoting Terrell v. Smith, 668 F.3d 1244, 1250 (11th
Cir. 2012) (citation omitted)) (doc. 91, p. 11).
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administrative segregation for the safety and security of the facility during an ongoing
investigation” (Id., p. 7-8). Lovett also asserts that she and Cpl. Spencer14
both had personal knowledge of Plaintiff’s extensive history of obtaining and
hiding contraband. This knowledge played a role in Sgt. Lovett’s decision to send
Plaintiff to administrative segregation on January 6 because it made her
suspicious that Plaintiff did in fact have some involvement with the contraband.
Her decision was also based on her knowledge of Plaintiff’s his history of
self-harm and various behavioral problems. She therefore determined that it
would be best for the safety and security of the other inmates, the staff, and
Plaintiff himself that he be placed in a more controlled environment during this
time.
(Id., p. 8).15 Plaintiff did not dispute these allegations (doc. 39).
The undisputed facts show that an “objective prison administrator” faced with the same
circumstance would have taken the same action to maintain order, safety, and security at the jail
and in view of his history, to place Plaintiff in a more controlled environment. Jacoby v. Mack,
666 Fed. Appx. at 763 (finding that Jacoby’s “history of refusing to cooperate with officers” and
“hiding contraband … were legitimate, non-retaliatory reasons behind [Defendant’s] decision to
transfer him.”); see also Webb v. Boyd, 2017 WL 603005, at *7 (applying the Mt Healthy
analysis and finding that “objective prison administrators standing in [the defendants’] shoes”
would have made the same decision) (bracketed text in original).
14

Spencer was dismissed from this action (doc. 38-1).

15

As to his history of self-harm, Defendants reference Plaintiff’s past attempts to cut himself
with a razor blade (doc. 32, p. 9). In a prior lawsuit, Plaintiff alleged that on August 20, 2012, he
obtained a razor blade and began to cut his throat. He was stopped, his throat was bandaged, and
he was placed on suicide watch in a restraint chair. “Several hours later, he pulled his hands out
of the restraints and began cutting on his throat again with a razor he had swallowed.” He was
treated and taken to an observation cell. The next day, he cut his wrist and rammed his head into
the cell bars. He was treated again and put in the restraint chair, and transferred to a suicide cell.
Ultimately, he was assessed by Baldwin County Mental Health. Jacoby v. Baldwin Cty., 2014
WL 2641834, at *3 (S.D. Ala. June 13, 2014), aff'd, 835 F.3d 1338 (11th Cir. 2016).
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Since Plaintiff has failed to establish evidence of a causal relationship, he cannot
establish that Lovett violated his First Amendment rights by placing him in Segregation.
Therefore, Lovett is entitled to qualified immunity as to this claim. Accordingly, summary
judgment is granted in Lovett’s favor with respect to this claim of retaliation.
DONE and ORDERED this the 3rd day of April 2019.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE

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