United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
Brent Jacoby, an inmate in the custody of the Alabama
Department of Corrections (“ADOC”), files this
pro se 42 U.S.C. § 1983 action alleging that
prison officials at the Ventress Correctional Facility
(“Ventress”) are liable for constitutional claims
arising from various conditions at the facility between June
and August of 2015. Jacoby brings suit against Warden Karla
Jones, Jimmy Thomas, Pamela Harris, Brian Gordon, and Curtis
Simmons. He seeks injunctive relief and damages. Doc. 6.
filed an answer, special report and supporting evidentiary
materials addressing Jacoby's claims for relief. Doc. 31.
In these filings, Defendants deny that they acted in
violation of Jacoby's constitutional rights. Doc. 31.
Upon receipt of Defendants' special report, the court
issued an order directing Jacoby to file a response,
including sworn affidavits and other evidentiary materials,
and specifically cautioning Jacoby that “the court may
at any time thereafter and without notice to the parties (1)
treat the special report and any supporting evidentiary
materials as a motion for summary judgment.” Doc. 32 at
2. Jacoby responded to Defendants' special report by
filing a response titled “Plaintiff's Memorandum of
Law in Opposition to Defendants' Motion/Special Report
for Summary Judgment.” Doc. 35. The response is not a
sworn statement and thus does not meet the requirements of
Federal Rule of Civil Procedure 56(e)(1), which requires that
an affidavit “be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on the matters stated.”
This failure on Jacoby's part means that the court cannot
consider this response as evidence sufficient to create a
genuine issue of material fact. See Fed. R. Civ. P.
56(e)(1); Holloman v. Jacksonville Housing Auth.,
2007 WL 245555, *2 (11th Cir. Jan. 30, 2007) (noting that
“unsworn statements, even from pro se parties,
should not be considered in determining the propriety of
summary judgment”); Pfeil v. Rogers, 757 F.2d
850, 859 (7th Cir. 1986); Dickinson v. Wainwright,
626 F.2d 1184, 1185 (5th Cir. 1980). To the extent affidavits
or evidentiary submissions attached to Jacoby's unsworn
opposition do meet the requirements of Rule 56(e)(1)
(see Doc. 35 at attachments), the court has
considered these materials but finds they do not demonstrate
there is any genuine issue of material fact. See
Doc. 35 at 2. The court will treat Defendants' report as
a motion for summary judgment, and resolve this motion in
favor of Defendants.
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); 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 that the nonmoving
party has failed to present evidence to support some element
on which it bears the ultimate burden of proof. Id.
have met their 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. 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 pleaded in a
plaintiff's 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 and
materiality is determined by the substantive law applicable
to the case. Anderson, 477 U.S. at 248.
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; see also United States v. Stein, 881
F.3d 853 (11th Cir. 2018) (holding that a plaintiff's
self-serving and uncorroborated, but not conclusory,
statements in an affidavit or deposition may create an issue
of material fact which precludes summary judgment);
Feliciano v. City of Miami Beach, 707 F.3d 1244,
1253 (11th Cir. 2013) (“To be sure, [plaintiff's]
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.'”) (citations 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).
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 establishing 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). 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, Jacoby fails to demonstrate
a genuine dispute of material fact so as to preclude summary
judgment on his claims against Defendants. See
Matsushita, 475 U.S. at 587.
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).
“A state official may not be sued in his official
capacity unless the state has waived its Eleventh Amendment
immunity, or Congress has abrogated the state's immunity.
Alabama has not waived its Eleventh Amendment immunity, and
Congress has not abrogated Alabama's immunity. Therefore,
Alabama state officials are immune from claims brought
against them in their official capacities.”
Lancaster v. Monroe Cnty., 116 F.3d 1419, 1429 (11th
Cir. 1997) (citing Pennhurst St. Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984); Seminole Tribe
v. Florida, 517 U.S. 44, 59 (1996); Carr v. City of
Florence, 916 F.2d 1521, 1525 (11th Cir. 1990)).
light of the foregoing, Defendants are state actors entitled
to sovereign immunity under the Eleventh Amendment for claims
seeking monetary damages from them in their official
capacities. Id.; see also Jackson v. Ga. Dept.
of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994);
Parker v. Williams, 862 F.2d 1471 (11th Cir. 1989).
is no longer incarcerated at Ventress. The transfer or
release of a prisoner renders moot any claims for injunctive
or declaratory relief. See Cnty. 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 even to illegal conduct does not in and of
itself show a pending case or controversy regarding
injunctive relief if unaccompanied by any continuing present
injury or real and immediate threat of repeated injury).
Because the records before the court establish that Jacoby is
no longer incarcerated at Ventress, his request for equitable
relief is moot.
claims that the Defendants violated his constitutional rights
by exposing him to unsafe and unsanitary living conditions,
failing to protect him from inmate assaults, subjecting him
to false disciplinary action, subjecting him to improper
housing assignments, and retaliating against him for filing
prison grievances. Doc. 6. Defendants assert that they are
entitled to qualified immunity on Jacoby's claims against
them in their individual capacities for monetary damages.
Doc. 31 at 14-16.
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). Here,
there is no dispute that Defendants were acting within the
course and scope of their discretionary authority when the
incidents occurred. Jacoby must, therefore, establish 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.
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) (internal quotation
marks and citations omitted). For right to be clearly
established, either (1) “a materially similar case has
already been decided”; (2) there is “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) (internal 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 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
alleges a violation of his Eighth Amendment rights regarding
the conditions of his confinement at Ventress. Specifically,
Jacoby alleges that (1) from June 12, 2015 to August 1, 2015,
Defendants Jones and Thomas had a policy or custom of denying
inmates in the B-1 disciplinary dorm the right to purchase
hygiene and cleaning products and to receive outside
recreation,  which resulted in nasty conditions causing
him to develop a rash; and (2) on July 9, 2015, correctional
officials visited B-1 dorm, started harassing inmates, then
placed Jacoby in a one-man cell with another inmate without
functioning water (it “dribbled from the sink”),
circulating air, or a window that opened and closed. Doc. 6
at 5 & 7.
Jones testified that Ventress has five dormitories (B, C, D,
E, and F). Each dorm has four segregation cells (some are
one-man segregation cells and some are two-man segregation
cells). B-1 dorm is an open bay dorm. It is a restricted
privileges dorm where inmates have certain privileges
restricted, but they are not generally assigned to one or
two-man segregation cells. Doc. 31-2.
record of Jacoby's movement while in custody reflects
that from June 12, 2015 through July 9, 2015 he was assigned
to B-1 dorm, the restricted privileges dorm (speccally, Bed B
1-17 A), after receiving a behavior citation for
insubordination. From July 9, 2015 to July 14, 2015, Jacoby
was assigned to D-3 dorm in a one-man cell for administrative
segregation due to a disciplinary infraction he received for
insubordination. He was moved to a two-man administrative
segregation cell in B-6 dorm from July 14, 2015 to July 24,
2015. A hearing was held July 20, 2015 regarding the
disciplinary infraction issued July 9, 2015. A hearing
officer found Jacoby guilty of the rule infraction and
sentenced him to loss of privileges for 30 days and
disciplinary segregation for 30 days. On July 23, 2015,
Warden Davis reduced the sanctions and released Jacoby from
segregation to the B-1 restricted privileges dorm on July 24,
2015-four days after the disciplinary hearing and one day
after the sanctions were reduced. On August 10, 2015, Jacoby
was assigned to C-1 general population dorm. Doc. 31-2; Doc.
31-6 at 1-2, 13-15 & 18-20.
Jimmy Thomas, commander of the segregation area at Ventress
during the time relevant to the complaint, submitted an
affidavit explaining the conditions in administrative and
Both in administrative and disciplinary segregation, pursuant
to ADOC policy, inmates are allowed to possess stamps,
stationary, and a writing instrument. As far as I am aware,
Jacoby was not denied these materials. Indigent inmates are
issued two stamps per week for legal mail. I do not know if
Jacoby is indigent or if he requested these materials, but
[if] he is and a request was made, they should have been
Seg inmates are also issued personal hygiene items and are
allowed to take a five minute shower every other day. As far
as I am aware, Jacoby was not denied these materials or the
Seg inmates are given cleaning supplies and ordered to clean
their cell every day. Dorm cleaners clean the common shower
Seg inmates are allowed to exercise five hours per seven day
period. As far as I am aware, Jacoby was not denied this
Seg inmates are allowed to possess reading materials, though
limited in number. As far as I am aware, Jacoby was not
denied these materials (if he possessed them).
As far as I am aware, the water works in every seg cell and
the circulation system functions adequately. If there are
maintenance issues, work orders are turned in to the
maintenance department and repairs are made. Of course,
summers in south Alabama are hot for all residents. In times
of extreme heat, extra precautions are taken like the
distribution of ice.
Two inmates would not have been placed in a one man seg cell.
There is only one bed in a one man seg cell.
Doc. 31-3; see also Doc. 31-2.
United States Constitution prohibits conditions of
confinement that result in the wanton and unnecessary
infliction of pain. Rhodes v. Chapman, 452 U.S. 337,
346 (1981). Specifically, the Constitution is concerned with
“deprivations of essential food, medical care, or
sanitation” or “other conditions intolerable for
prison confinement.” Id. at 348 (citation
omitted). Only actions which deny inmates “the minimal
civilized measure of life's necessities” are grave
enough to establish constitutional violations. Id.
at 347. Prison conditions which may be “restrictive and
even harsh . . . are part of the penalty that criminal
offenders pay for their offenses against society” and,
therefore, do not necessarily constitute cruel and unusual
punishment within the meaning of the Eighth Amendment.
Id. Conditions, however, may not be
“barbarous” nor may they contravene society's
“evolving standards of decency.” Id. at
345-46. “[T]he Constitution does not mandate
comfortable prisons. If prison conditions are merely
restrictive and even harsh, they are part of the penalty that
criminal offenders pay for their offenses against society.
Generally speaking, prison conditions rise to the level of an
Eighth Amendment violation only when they involve the wanton
and unnecessary infliction of pain.” Chandler v.
Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (internal
quotation marks and citations omitted). Although the
Constitution “does not mandate comfortable prisons . .
. neither does it permit inhumane ones.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994). Thus, it is settled
law that the conditions under which a prisoner is confined
are subject to constitutional scrutiny. Helling v.
McKinney, 509 U.S. 25 (1993).
prison official has a duty under the Eight Amendment to
“provide humane conditions of confinement; prison
officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must take reasonable
measures to guarantee the safety of the inmates.”
Farmer, 511 U.S. at 832 (internal quotation marks
and citation omitted); Helling, 509 U.S. at 31-32.
For liability to attach, the challenged prison condition must
be “extreme” and must pose “an unreasonable
risk of serious damage to [the inmate's] future
health.” Chandler, 379 F.3d at 1289-90. To
demonstrate an Eighth Amendment violation regarding
conditions of confinement, a prisoner must satisfy both an
objective and a subjective inquiry. Farmer, 511 U.S.
at 834. With respect to the objective elements, an inmate
must first show “an objectively substantial risk of
serious harm . . . exist[ed]. Second, once it is established
that the official is aware of this substantial risk, the
official must react to this risk in an objectively
unreasonable manner.” Marsh v. Butler Cnty.,
268 F.3d 1014, 1028-29 (11th Cir. 2001). As to the subjective
elements, “the official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference. . . . The Eighth Amendment does not outlaw cruel
and unusual ‘conditions'; it outlaws cruel and
unusual ‘punishments.' . . . [A]n official's
failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of
punishment.” Farmer, 511 U.S. at 837-38;
Campbell v. Sikes, 169 F.3d 1353, 1364 (11th Cir.
1999) (“Proof that the defendant should have perceived
the risk, but did not, is insufficient.”); Cottrell
v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (same).
The conduct at issue “must involve more than ordinary
lack of due care for the prisoner's interests or safety.
. . . It is obduracy and wantonness, not inadvertence or
error in good faith, that characterize the conduct prohibited
by the Cruel and Unusual Punishments Clause, whether that
conduct occurs in connection with establishing conditions of
confinement, supplying medical needs, or restoring official
control over a tumultuous cellblock.” Whitley v.
Albers, 475 U.S. 312, 319 (1986).
alleges that Defendants Jones and Thomas have a policy of
denying inmates in B1 segregation dorm and segregation cells
the opportunity to purchase certain necessary items. He
complains that for a 45-day period he had inadequate outside
recreation and was not allowed to purchase hygiene articles,
cleaning supplies, stamps, or stationary. Doc. 6.
deny that Jacoby was subjected to cruel and unusual
punishment so as to violate the Constitution. Doc. 31. The
unrefuted evidence reflects that inmates housed in
segregation, whether in a cell or in the restricted
privileges dorm, are subject to certain restrictions and loss
of various privileges including loss of store privileges.
Docs. 31-2, 31-3, 31-6 & 35-5. Jacoby, however, has no
constitutional right to buy items from the institutional
store regardless of his housing assignment and, therefore,
Defendants' adherence to or enforcement of institutional
procedure in this regard, without more, did not violate any
constitutional right to which he is entitled. See Am.
Manuf. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)
(holding that to state a viable claim for relief in a 42
U.S.C. § 1983 action the conduct must have deprived
Plaintiff of rights, privileges or immunities secured by the
Constitution); see also Parratt v. Taylor, 451 U.S.
Jones and Thomas testified that while assigned to segregation
Jacoby was issued supplies, including hygiene and cleaning
items; he could have a limited amount of reading material; he
had the ability to exercise for five hours per week; he could
shower every other day; and he was allowed to have a writing
instrument, paper, and stamps, and that he could request to
receive these items free of charge if he could not afford
them. Docs. 31-2 & 31-3; see also
Doc. 35-5 at 5. Defendants also testified that they are
unaware of any non-functioning water supply in segregation
cells or issues with the air circulation system, that repairs
are made if there are any maintenance issues, and that they
undertake precautions such as distributing ice during times
of extreme heat. Docs. 31-2 & 31-3. Finally, because
there is only one bed in a one-man segregation cell,
Defendants testified that two inmates would not be placed in
a one-man segregation cell. Docs. 31-2 & 31-3.
conditions about which Jacoby complains are an unfortunate
part of prison life in general. While the Constitution does
not mandate comfortable prisons, the conditions under which
inmates are housed must not be inhumane. Mathews v.
Crosby,480 F.3d 1265, 1269 (11th Cir. 2007). Although
Jacoby challenges the conditions in segregation at Ventress,
he does not establish that the above-described
conditions-including those that lead to an itchy, painful,
burning rash -were extreme, denied him the minimal
civilized measure of ...