United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
Brent Jacoby, a state inmate incarcerated at the Kilby
Correctional Facility in Mt. Meigs, Alabama, brings this 42
U.S.C. § 1983 action against Dr. John Peasant. Jacoby
alleges that Dr. Peasant violated his Eighth Amendment rights
by failing to provide him with adequate medical care in June
and July 2015 for a painful and itchy skin condition during a
previous period of incarceration at Ventress Correctional
Facility (“Ventress”). Jacoby seeks damages and
requests trial by jury. Doc. 1.
Peasant filed a special report. Doc. 18. The court entered an
order which provided Jacoby an opportunity to file a response
to Dr. Peasant's special report. Doc. 19. This order
advised Jacoby that his response should be supported by
affidavits or statements made under penalty of perjury and
other evidentiary materials. Doc. 19 at 3. This order further
cautioned Jacoby that unless “sufficient legal
cause” is shown within ten days of entry of this order
“why such action should not be undertaken, the court
may at any time [after expiration of the time for his filing
a response to this order] and without further notice to the
parties (1) treat the special report[s] and any supporting
evidentiary materials as a [dispositive] motion . . . and (2)
after considering any response as allowed by this order, rule
on the motion in accordance with law.” Doc. 19 at 3-4.
Jacoby responded to Dr. Peasant's report, see
Doc. 22, but his response does not demonstrate that there is
any genuine dispute of material fact.
STANDARD OF REVIEW
judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show there is no genuine
[dispute] as to any material fact and that the moving party
is entitled to judgment as a matter of law.”
Greenberg v. BellSouth Telecomm., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (per curiam); Fed.R.Civ.P. 56(a)
(“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.”). The party moving 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 [record, including
pleadings, discovery materials and affidavits], which it
believes demonstrate the absence of a genuine [dispute] of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The movant may meet this burden by
presenting evidence indicating there is no dispute of
material fact or by showing the non-moving party has failed
to present evidence to support some element on which it bears
the ultimate burden of proof. Id. at 322-24.
defendant has met his evidentiary burden. Thus, the burden
shifts to Jacoby to establish, with appropriate evidence
beyond the pleadings, that a genuine dispute material to his
case exists. Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at
324; Fed.R.Civ.P. 56(e)(3); Jeffery v. Sarasota White
Sox, Inc., 64 F.3d 590, 593-594 (11th Cir. 1995)
(holding that, once the moving party meets its burden,
“the non-moving party must then go beyond the
pleadings, and by its own affidavits [or sworn statements],
or by depositions, answers to interrogatories, and admissions
on file, ” demonstrate there is a genuine dispute of
material fact) (internal quotations omitted). This court will
also consider “specific facts” pled in a
plaintiff's sworn complaint when considering his
opposition to summary judgment. Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). A
genuine dispute of material fact exists when the non-moving
party produces evidence that would allow a reasonable
factfinder to return a verdict in its favor.
Greenberg, 498 F.3d at 1263; Allen v. Bd. of
Public Educ., 495 F.3d 1306, 1313 (11th Cir. 2007).
factual inferences must be viewed in a light most favorable
to the non-moving party and pro se complaints are
entitled to liberal interpretation by the courts, a pro
se litigant does not escape the burden of establishing
by sufficient evidence a genuine dispute of material fact.
See Beard v. Banks, 548 U.S. 521, 525 (2006);
Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.
1990). Jacoby's pro se status alone does not
compel this court to disregard elementary principles of
production and proof in a civil case.
Eighth Amendment Claim Against Defendant in His Official
does not indicate the capacity in which he sues Dr. Peasant.
To the extent he is sued in his official capacity, the law is
settled that official capacity lawsuits are “in all
respects other than name, . . . treated as a suit against the
entity.” Kentucky v. Graham, 473 U.S. 159, 166
officials may not be sued in their official capacity unless
the state has waived its Eleventh Amendment immunity or
unless Congress has abrogated the state's immunity, and
neither has occurred in this case. See Lancaster v.
Monroe Cnty., 116 F.3d 1419, 1429 (11th Cir. 1997)
(citing Seminole Tribe v. Florida, 517 U.S. 44, 59
(1996) (discussing abrogation by Congress); Pennhurst St.
School & Hospital v. Halderman, 465 U.S. 89, 100
(1984) (discussing Eleventh Amendment immunity); Carr v.
City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990)
(establishing that the State of Alabama has not waived
Eleventh Amendment immunity). In light of the foregoing, Dr.
Peasant is a state actor entitled to sovereign immunity under
the Eleventh Amendment for Jacoby's Eighth Amendment
claims seeking monetary damages from him in his official
capacity. The claim for money damages brought against Dr.
Peasant in his official capacity is, therefore, due to be
Eighth Amendment Claim Against Defendant in His Individual
alleges that he contracted herpes around age 12 or 13 and has
reoccurring bouts of herpes outbreaks due to stress and
anxiety triggered by the prison environment. While housed in
B-1 segregation dorm in June and July 2015, Jacoby
experienced constant “pop ups” of herpes sores
around his buttocks, thighs, pelvic, and genital area that
would not go away. He submitted sick call requests to Dr.
Peasant, who refused to prescribe medication that would
suppress the herpes outbreaks and alleviate the associated
painful burning and itching blisters. Because Dr. Peasant did
not believe Jacoby had herpes, Jacoby alleges the physician
was unsure how to treat his condition. Despite providing Dr.
Peasant with past medical records documenting prescriptions
Jacoby had been given to treat his herpes outbreaks, Jacoby
complains that Dr. Peasant still refused to provide treatment
on several occasions due to a belief that Jacoby's
condition was due to scabies, not herpes. Even when test
results confirmed that Jacoby had herpes, Jacoby states that
Dr. Peasant still failed to provide treatment. Dr.
Peasant's conduct, Jacoby claims, caused him to suffer
for days and weeks at a time with painful, embarrassing,
itching blisters on his penis, genital area, buttocks, pelvic
area, and thighs without being provided any treatment to help
suppress the outbreaks. Even after Jacoby reminded Dr.
Peasant that Dr. Peasant previously had treated him for
herpes, the physician told Jacoby he would not treat him for
herpes or order him any medications. Doc. 9.
Peasant is the Medical Director at Ventress, a position he
has held since 2006. Dr. Peasant is familiar with Jacoby
having examined him and treated him during his incarceration
at Ventress regarding his medical needs and concerns. The
evidentiary materials filed by Dr. Peasant address the
allegations made by Jacoby. A thorough review of these
documents and records demonstrate that the affidavit
submitted by Dr. Peasant describing the treatment provided to