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Jacoby v. Jones

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

August 14, 2018

BRENT JACOBY, #291 560, Jacoby,
v.
WARDEN JONES, et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.[1] Jacoby brings suit against Warden Karla Jones, Jimmy Thomas, Pamela Harris, Brian Gordon, and Curtis Simmons. He seeks injunctive relief and damages. Doc. 6.

         Defendants 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.

         I. STANDARD OF REVIEW

         “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 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. at 322-24.

         Defendants 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.

         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; 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).

         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 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.

         II. DISCUSSION

         A. Absolute Immunity

         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). “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)).

         In 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).

         B. Injunctive Relief

         Jacoby 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.

         C. Qualified Immunity

         Jacoby 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.

         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). 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. 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) (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 241-42).

         D. Conditions[2]

         Jacoby 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, [3] 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.

         Warden 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.

         A 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.[4] 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.[5] 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.

         Defendant 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 disciplinary segregation:

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 provided.
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 shower benefit.
Seg inmates are given cleaning supplies and ordered to clean their cell every day. Dorm cleaners clean the common shower areas.
Seg inmates are allowed to exercise five hours per seven day period. As far as I am aware, Jacoby was not denied this benefit.
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.

         The 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).

         A 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).

         Jacoby 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.

         Defendants 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. 527 (1981).

         Defendants 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.[6] 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.

         The 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[7] -were extreme, denied him the minimal civilized measure of ...


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