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Jacoby v. Thomas

United States District Court, M.D. Alabama, Northern Division

July 19, 2018

BRENT JACOBY, #291560 Plaintiff,
v.
COMMISSIONER THOMAS, et ah, Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Brent Jacoby is an inmate of the Alabama Department of Corrections ("ADOC"). He filed this 42 U.S.C. § 1983 action alleging that prison officials at Ventress Correctional Facility ("Ventress") in Clayton, Alabama failed to protect him from assault by fellow inmate Kenneth Palmore in May 2014, failed to have an adequate grievance system, and violated his due process rights. Docs. 1, 36 & 37. Plaintiff names as defendants[1] Kim T. Thomas, James Carlton, Dorothy Scott, Brian Gordon, James Nolin, Keone Curry, Jimmy Spann, Pamela Harris, and Camelia Cargle. Doc. 1. Plaintiff sues Defendants in their official and individual capacities. Doc. 1 at 12. Plaintiff requests injunctive relief and damages. Doc. 1 at 1 & 12.

         Defendants filed an answer, special report, supplemental answer and special report, and evidentiary materials addressing Plaintiffs claims for relief. Docs. 23, 24, 41 & 42. Upon receipt of Defendants' reports, the court directed Plaintiff to file a response, including sworn affidavits and other evidentiary materials, and specifically cautioning Plaintiff that "at some time in the future the court will treat Defendants' reports and Plaintiffs response as a dispositive motion and response." Doc. 43 at 1. Plaintiff responded to Defendants' reports and materials. Docs. 31 & 51.

         The court now will treat Defendants' reports as a motion for summary judgment. Upon consideration of the motion, the responses, and the evidentiary materials filed in support and in opposition to the motion, the court concludes that Defendants' motion for summary judgment is due to be GRANTED.

         II. STANDARD OF REVIEW

         "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." Fed.R.Civ.P. 56(a). "Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no [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) (citation omitted). 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 that there is no dispute of material fact or by showing 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.

         Defendants have met their evidentiary burden and demonstrated the absence of any genuine dispute of material fact. Thus, the burden shifts to Plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to the case exists. Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact [by citing to materials in the record including affidavits, relevant documents or other materials], the court may . . . grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it. . . ."); see also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (holding that the court should consider facts pled in a plaintiffs sworn complaint when considering summary judgment). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable factfinder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. The evidence must be admissible at trial, and if the nonmoving party's evidence "is merely colorable ... or is not significantly probative . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Fed.R.Civ.P. 56(e). "A mere 'scintilla' of evidence supporting the opposing party's position will not suffice . . . ." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Only disputes involving material facts are relevant, materiality is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248. To demonstrate a genuine dispute of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine [dispute] for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255; Feliciano v. City of Miami Beach, 101 F.3d 1244, 1253 (11th Cir. 2013) ("To be sure, [plaintiffs] sworn statements are self-serving, but that alone does not permit us to disregard them at the summary judgment stage. .. . 'Courts routinely and properly deny summary judgment on the basis of a party's sworn testimony even though it is self-serving.'") (citation omitted). "Conclusory, uncorroborated allegations by a plaintiff in an affidavit or deposition will not create an issue of fact for trial sufficient to defeat a well supported summary judgment motion." Solliday v. Fed. Officers, 413 Fed.Appx. 206, 207 (11th Cir. 2011) (citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)); see also Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (holding that conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact). Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the court, a pro se litigant does not escape the burden of sufficiently establishing a genuine dispute of material fact. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, a plaintiff s pro se status alone does not mandate that this court disregard elementary principles of production and proof in a civil case. Here, Plaintiff fails to demonstrate a requisite genuine dispute of material fact so as to preclude summary judgment on his claims against Defendants. See Matsushita, 475 U.S. at 587.

         III. DISCUSSION

         A. Absolute Immunity

         Defendants argue that Plaintiffs claims against them in their official capacities are barred by the Eleventh Amendment. Doc. 24 at 12. 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 (1985). State officials may not be sued in their official capacities for money damages 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 & Hosp. 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) (finding that Alabama has not waived Eleventh Amendment immunity)). In light of the foregoing, Defendants are state actors entitled to sovereign immunity under the Eleventh Amendment for Plaintiffs claims seeking monetary damages from them in their official capacities. The claims for money damages brought against Defendants in their official capacities are therefore due to be dismissed.

         B. Equitable Relief

         Plaintiffs request for injunctive relief against Defendants is due to be dismissed as moot because Plaintiff is now located at Kilby Correctional Facility and is longer incarcerated at Ventress. Doc. 60. The transfer or release of a prisoner renders moot any claims for injunctive or declaratory relief. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); see also Cotterall v. Paul, 755 F.2d 777, 780 (11th Cir. 1985) (holding that past exposure to illegal conduct does not in and of itself prove a pending case or controversy regarding injunctive relief if unaccompanied by any continuing present injury or real and immediate threat of repeated injury). Consequently, Plaintiffs request for equitable relief is moot.

         C. Lack of Grievance Procedure

         Plaintiff complains that the inmate grievance system violated the First Amendment. Doc. 1 at 4. Plaintiff also states that the "facility is notorious for ignoring grievances," not handing out grievance forms, and other wrongs related to the grievance system. Doc. 1 at 8. To the extent Plaintiffs complaint about the grievance system is related to his Eighth Amendment claim regarding the inmate assault, the court will address his allegations regarding the grievance system along with Plaintiffs Eighth Amendment failure to protect claim. Plaintiffs First Amendment claim that the grievance system is inadequate lacks merit because "a prisoner does not have a constitutionally-protected liberty interest in an inmate grievance procedure." Thomas v. Warner, 237 Fed.Appx. 435, 437 (11th Cir. 2007) (citing Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)); see also Flowers v. Tate, 925 F.2d 1463 (6th Cir. 1991) (holding that an inmate "does not have a constitutional right to an effective grievance procedure"). Thus, the quality of the inmate grievance procedure, standing alone, does not provide a basis for relief in this cause of action, and Defendants are due to be granted summary judgment on Plaintiffs claim regarding the grievance system.

         D. Deliberate Indifference

         Plaintiff claims that Defendants were deliberately indifferent to his safety when they failed to protect him from assault by inmate Palmore on May 31, 2014. Doc. 1 at 5. Defendants assert they are entitled to qualified immunity on Plaintiffs claims against them in their individual capacities for monetary damages. Doc. 24 at 2 & 4-10. They further argue that they cannot be held liable based on vicarious liability. Doc. 24 at 10-12. Finally, they argue that, pursuant to 42 U.S.C. § l997e(e), Plaintiff cannot recover money damages because his physical injuries were de minimis. Doc. 24 at 11-12. The court begins its analysis with Defendants' argument for qualified immunity.

         1. Qualified Immunity

         Qualified immunity offers complete protection from civil damages for government officials sued in their individual capacities if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is not merely a defense against liability but rather immunity from suit, and the Supreme Court "repeatedly [has] stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (quotation marks and citations omitted). To receive qualified immunity, the public official must first prove 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). There is no dispute that Defendants here were acting within the course and scope of their discretionary authority when the incidents occurred. Plaintiff must, therefore, allege facts that, when read in a light most favorable to him, show that Defendants are not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003).

         To satisfy his burden, a plaintiff must show two things: (1) that a defendant committed a constitutional violation and (2) that the constitutional right a defendant violated was "clearly established." Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004). "To be clearly established, a right must be sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate." Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012) (quotation marks and citations omitted). "Clearly established law" means (1) "a materially similar case has already been decided"; (2) "a broader, clearly established principle that should control the novel facts of the situation"; or (3) "the conduct involved in the case may so obviously violate the constitution that prior case law is unnecessary." Gaines v. Wardynski, 871 F.3d 1203, 1208-09 (11th Cir. 2017) (quotation marks and citations omitted). The controlling authority is from "the United States Supreme Court, the Eleventh Circuit, or the highest court in the relevant state." See Id. at 1209. "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quotation marks and citations omitted). The Eleventh Circuit "has stated many times that if case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant." Gaines, 871 F.3d at 1210. "Exact factual identity with the previously decided case is not required, but the unlawfulness of the conduct must be apparent from pre-existing law." Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011). If a plaintiff cannot establish both elements to satisfy his burden, the defendants are entitled to qualified immunity, and the court may analyze the elements "in whatever order is deemed most appropriate for the case." Rehberg v. Paulk, 611 F.3d 828, 839 (11th Cir. 2010) (citing Pearson, 555 U.S. at 241-42).

         2. Summary of Material Facts

         For purposes of considering Defendants' motion for summary judgment, the court views the facts in the light most favorable to Plaintiff, the nonmoving party. Plaintiff was an inmate at Ventress in 2014. During the time relevant to his claims, Thomas was the ADOC Commissioner. Gordon was the ADOC Prison Rape Elimination Act ("PREA") Compliance Manager. At Ventress, Carlton was a Warden, Scott was a Lieutenant, Nolin was a Sergeant, Cargle and Harris were Captains, and Curry and Spann were Correctional Officers. Docs. 24-2, 24-3, 24-4, 24-5, 42-1, 42-3, 42-5, 42-6 & 42-7.

         Plaintiffs failure to protect claim centers on two incidents on May 31, 2014, the second of which was Palmore's physical attack on Plaintiff. Doc. 51 at 3. In his verified complaint, Plaintiff states that he is a bisexual white male. Doc. 1 at 5. Plaintiff is "very feminine" and "at a greater risk of harm than other inmates." Doc. 51 at 6. In May 2014, he was housed in Dorm 1 along with inmate Palmore. Doc. 51 at 6. Plaintiff alleges that Palmore "has a reputation for being a violent assaultive inmate and for having sexually assaulting and harassing other inmates at other prisons and has this on his disciplinary record." Doc. 51 at 6. Palmore had two previous PREA complaints against him at a different institution. Doc. 42-5 at 3 & 5. Plaintiff states that Palmore wanted to be in a homosexual relationship with Plaintiff, and for about two weeks "Palmore would not take rejection from" Plaintiff and instead tried to intimidate Plaintiff or offer Plaintiff money for sexual favors. Doc. 1 at 5.

         a. First Incident

         After Plaintiff refused his advances, Palmore told Plaintiff on May 31, 2014 that "bitch I'm gonna kill you, you['re] always gonna be mine," and then Palmore opened Plaintiffs lock box, taking Plaintiffs cigarettes, lock, and key, and telling him, "you want it come get it." Doc. 1 at 6. Plaintiff began having an anxiety attack, could not breathe, and began crying out of fear, frustration, and humiliation. Doc. 1 at 6. He ran out the door and reported the incident to Officer Curry, and specifically invoked PREA. Id. Plaintiff states he "reported everything" to Curry, Nolin, Scott, "& or Bennett."[2] Doc. 1 at 6. Palmore admitted to Nolin that he took Plaintiffs property, and according to Plaintiff, also told Nolin "that's my girlfriend." Doc. 1 at 6. Plaintiff states that he was not in a relationship with Palmore and instead was in a relationship with inmate Aloysius Henry. Doc. 1 at 6. Plaintiff submitted a statement from Henry in which Henry maintains that he "was in a homosexual ...


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