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Jacoby v. Mack

United States District Court, S.D. Alabama, Southern Division

April 3, 2019

BRENT JACOBY, Plaintiff,
v.
SHERIFF HUEY MACK, et al., Defendants.

          ORDER

          KRISTI K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE.

         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 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.
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 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. 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).

(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 ...


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