IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BRENT JACOBY (#291560) *

Plaintiff, *

 *

vs. * CIVIL ACTION:13-00070-KD-B

 *

SHERIFF HUEY MACK, et al. *

Defendants. *

 ORDER

Plaintiff, an Alabama prison inmate proceeding pro se and 

in forma pauperis filed a complaint seeking relief under 42 

U.S.C. § 1983. This action is now before the court on 

Defendants’ Motions for Summary Judgment. (Docs. 55, 68, 69, 

70). After careful consideration of the motions, and the 

documents filed in support of and in opposition to the motions, 

and for the reasons stated below, Defendants’ Motions for 

Summary Judgment are granted and Plaintiff’s action is dismissed 

with prejudice.

I. BACKGROUND 

As a preliminary matter, the undersigned observes that 

Plaintiff Jacoby is a frequent litigator. He filed four 

complaints, including the instant one, while incarcerated as a 

pretrial detainee at the Baldwin County Jail 1 . See Jacoby v. 

 

1 A PACER (“Public Access to the Court Electronic Record”) search 

reveals that in addition to the complaints that he has filed in this 

district, Jacoby has also filed at least seven other § 1983 actions. 

See Jacoby v. Conway, CA 10-00920-HBS(W.D.N.Y June 2, 2011), Jacoby v. 

County of Oneida, New York, 05-1254 2009 U.S. Dist. LEXIS 83235 

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Baldwin County Jail, Civ. No. 12-00197-WS-M (hereinafter 

referenced as “Jacoby I”), 2013 WL 2285108, 2013 U.S. Dist. 

LEXIS 72212 (S.D. Ala. May 7, 2013), Jacoby v. Mack, Civ. No. 

12-00366-CG-C, 2014 WL 2435655, 2014 U.S. Dist. LEXIS 74768 

(S.D. Ala. Mar. 14, 2014) (hereinafter referenced as “Jacoby 

II”), Jacoby v. Baldwin County, Civ. No. 12-00640-CG-N, 2014 WL 

2641834, 2014 U.S. Dist. LEXIS 81477 (S.D. Ala. Mar. 18, 2014) 

(hereinafter referenced as “Jacoby III”). Some of the claims 

that Jacoby seeks to raise in this action have already been 

considered and rejected in the earlier filed actions2. In fact, 

all of Jacoby’s claims in each of those actions were dismissed 

after it was determined that there were no genuine issues of 

material fact in dispute, and that the defendants were entitled 

to judgment as a matter of law. Id.

From its review of the record, the Court summarizes the 

material factual allegations in this case in the light most 

 

(N.D.N.Y. Sept.11, 2009),Jacoby v. Moscicki, 07–00342–HBS, 2008 U.S. 

Dist. LEXIS 124827 (W.D.N.Y. Sept. 12, 2008), Jacoby v. Phelix, 07-

00872-(DNH/ATB) 2010 U.S. Dist. LEXIS 44222 (N.D.N.Y Mar. 31, 2010), 

Jacoby v. Sears, CA 07–00872–ATB (N.D.N.Y. Mar. 28, 2011), Jacoby v. 

Buncombe County Drug Treatment Program, 09-304–03–MU, 2009 U.S. Dist. 

LEXIS 80419 (W.D.N.C. Aug. 13, 2009), and Jacoby v. Fischer, 10–00920–

HBS (W.D.N.Y. Apr. 10, 2013).

2 The Court takes judicial notice of its records. See United 

States v. Glover, 179 F.3d 1300, 1302 n.5 (11th Cir. 1999) ("A court 

may take judicial notice of its own records and the records of 

inferior courts.").

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favorable to Jacoby.3 At all times relevant to his complaint in 

this action, Jacoby was incarcerated at the Baldwin County 

Correctional Facility as a pre-trial detainee. (Doc. 1 at 12). 

Jacoby arrived at the facility in October 20ll, and was 

transferred from the facility, and into the custody of the 

Alabama Department of Corrections upon his convictions for Third 

Degree Burglary in October 2013. (Jacoby I, Doc. 98 at 2);(Doc. 

39 at 4); www.doc.state.us/inmateHistoryaspxary (last visited on 

March 14, 2016.). 

On January 6, 2013, prison officials received a tip 

that there was tobacco in the block occupied by Jacoby and other 

inmates. (Doc. 32-3 at 3-4). This prompted a block search by 

staff. (Id.). During the search, tobacco was found taped to a 

string and hanging down a doorframe, concealed from view. (Id.) 

This tobacco was accessible to Jacoby and other inmates. (Id.). 

Sgt. Lovett ordered all inmates who could be implicated in this 

incident, including Jacoby, to be taken to administrative 

segregation while the investigation was completed. (Id.). The 

 

3 For summary judgment purposes, the Court’s analysis must begin 

with a description of the facts in the light most favorable to Jacoby, 

who is the non-moving party. See Skritch v. Thornton, 280 F.3d 1295, 

1299 (11th Cir. 2002). “[T]he ‘facts’ as accepted at the summary 

judgment stage of the proceedings, may not be the ‘actual’ facts of 

the case.” Priester v. City of Rivera Beach, 208 F.3d 919, 925 n.3 

(11th Cir. 2000). 

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general policy of the facility mandates that any inmate who 

might be implicated in an offense is to be placed in 

administrative segregation for the safety and security of the 

facility during an ongoing investigation. (Id.). 

The following day, January 7, 2013, Sgt. Lovett was 

informed that Jacoby was being disruptive in his cell in 

administrative segregation by repeatedly kicking the cell door, 

and was refusing to follow instructions to stop. (Docs. 32-3 at 

4; Doc. 32-7 at 10). At the time, Jacoby had been at the 

facility for nearly a year and a half, and during this period, 

he had been found with contraband on multiple occasions, he had 

numerous confrontations with prison staff, and he had attempted 

to harm himself with a razor on at least two occasions. (Jacoby 

I, Doc. 64 at 3-5; Jacoby II, Doc. 71 at 2-3, Jacoby III, Doc. 

74 at 35). Fully aware of Jacoby’s disruptive history, Sgt. 

Lovett sent officers to Jacoby’s cell and instructed the 

Corporal on the shift to use pepper spray if Jacoby continued to 

be combative and refused to follow instructions. (Doc. 32-3 at 

4). 

A video of the incident shows a gathering of five or six 

officers walking and discussing “handling business”. (Doc. 32-

8.) As officers approach and unlock the cell door, several 

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inmates can be seen exiting the cell, and one inmate is seen 

couched on his knees on the floor. Officers yell for the inmate 

to get down, and then two officers move in, with one quickly 

spraying the inmate, who is identified as Jacoby, in the 

direction of the back of his head. Jacoby is taken to the floor 

and the officers place Jacoby’s hands behind his back, and 

handcuff him. (Id.). Jacoby is then placed on his feet, and 

officers proceed to escort him down a hallway. They reach a 

closet sink, bend him over, and rinse his face and the back of 

his head with water. Jacoby, who is clad is short pants, is 

then placed in a restraint chair. At points during the 

encounter, Jacoby is yelling about the use of spray and 

threatening to sue the officers involved. The entire video lasts 

approximately six minutes.(Id.) 

On January 27, 2013, a routine search for contraband was 

performed. (Doc. 32-3 at 5; Doc. 32-7). A 1.5 pound block of 

crushed soap was found in Jacoby’s possession in violation of 

contraband policy. (Doc. 32-3 at 5; Doc. 32-6; Doc. 32-7). The 

soap was confiscated and Jacoby was charged with violating the 

prison’s weapon’s policy because the crushed soap could easily 

be used as a weapon, to hide other contraband such as razors, 

and to attempt to vandalize property. (Id.). On February 4, 

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2013, a disciplinary hearing was conducted, Jacoby was found 

guilty, and he was confined to segregation for thirty days. 

(Doc. 1 at 10; Doc. 38-1). 

In the instant petition, which was filed on February 14, 

20144, Jacoby asserts claims against Baldwin County Sheriff Huey 

“Hoss” Mack, Captain Jimmie Bennett, Sgt. Janie Lovett, Cpl. 

ReNisha Spencer, Officer McCants and Cpl. Winky for the 

incidents described above. Jacoby complains that he was 

subjected to inhumane conditions in segregation because 

segregation is overcrowded such that three inmates were forced 

to sleep in cells designed for one to two persons, and he was 

“forced to sleep with urine splattering on him, on his sheets 

with pubic hairs, body hairs, and dirt all over him for 3 days 

because he was forced to sleep on the floor”. (Doc. 1 at 5). 

Jacoby also contends he was “denied outside recreation for 

3 days, periodicals to read, and the opportunity to purchase 

hygiene products” while in segregation due to BCSCC’s policy “to 

not allow inmates to go to recreation, having reading materials, 

and purchase grooming products in segregation.” (Id.). He 

 

4 Under the mailbox rule, absent contrary evidence, a prisoner’s 

complaint is deemed filed on the date it is delivered to prison 

officials for mailing. See Houston v. Lack, 487 U.S. 266, 271-72, 108 

S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Adams v. United States, 173 

F.3d 1399, 1340-41 (11th Cir. 1999); Washington v. United States, 243 

F.3d 1299, 1301 (11th Cir. 2001); see also (Doc. 1 at 7). 

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further avers that he was placed in segregation due to the 

contraband of another inmate, and that he is a “serious to 

severe mentally ill inmate and should not be housed under these 

extreme conditions.” (Doc. 1 at 6). Jacoby also contends that 

during the January 7, 2013 incident, he was sprayed with pepper 

spray for no reason while he laid on the ground without a shirt, 

shoes, or socks, and that he was placed in a restraint chair and 

left for “8 1⁄2 hours strapped down screaming in agony for water 

and out of pain” which also caused him to “urinate [] on himself 

because he was not allowed to go to the bathroom.” (Doc. 1 at 6-

8). He further claims that he was denied due process because he 

was not provided adequate notice of the February 4 disciplinary 

hearing, and the hearing was not recorded. (Doc. 1 at 10; Doc. 

38-1). 

According to Jacoby, each of these incidents reflects the 

policy and customs of Defendants Sheriff Mack and Captain 

Bennett in supervising the BCSCC facility. (Doc. 1 at 9). 

Additionally, Jacoby claims that Sgt. Lovett is retaliating 

against him due to his continued filing of grievances and 

lawsuits. (Doc. 1 at 9). Jacoby requested, and was granted 

permission to file an amended complaint on December 5, 2014 in 

order to name Defendants McCants and Winky, who had been 

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previously identified in the complaint as John Doe #1 and John 

Doe #2. (Docs 45, 49). 

Defendants Spencer, Bennett, Mack, and Lovett filed an 

Answer and Special Report disputing Jacoby’s claims. (Docs. 32, 

33). Defendants contend that Jacoby’s claims are barred by the 

doctrines of collateral estoppel and res judicata, as well as by 

the Prison Litigation Reform Act because he has not suffered a 

physical injury as a result of the allegations in his amended 

complaint. They also argue that any claims against Defendants 

in their official capacity should fail due to Eleventh Amendment 

immunity, and that claims brought against them in their 

individual capacities should also fail because Jacoby cannot 

show a violation of a clearly established right.5 (Doc. 32 at 13-

24). According to Defendants, Jacoby’s claims of excessive 

force, inadequate conditions of confinement, due process 

violation, retaliation, and policy and procedure claims fail on 

their merits6. (Id. at 24-37). 

 

5 Defendants also asserted that Jacoby is barred from bringing 

this lawsuit because he failed to disclose prior lawsuits that showed 

that he had incurred three strikes prior to filing this claim. (Doc. 

32 at 10). This argument was considered, and ultimately rejected by 

the court. (Doc. 49).

6 On February 10, 2015, Defendants filed a Notice of Relevant 

Precedent (Doc. 40) advising the Court of an opinion by the Eleventh 

Circuit affirming the dismissal of Jacoby’s claims in "Jacoby I", 

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The Court entered an order notifying the parties that 

Defendants Spencer, Bennett, Mack, and Lovett’s Answer and 

Special Report were being converted into a motion or summary 

judgment, and giving the parties an opportunity to file briefs 

in support or opposition. (Doc. 56). However, before the 

conversion order was entered, Jacoby filed a response in 

opposition to Defendants’ summary judgment motion. (Doc. 39). 

The two later added Defendants, Winky and McCants, filed their 

Special Report and Answer on February 8, 2016. (Docs. 68, 69). 

The Court entered an order notifying the parties that Winky and 

McCants’ Answer and Special Report were being converted into a 

motion or summary judgment, and giving them an opportunity to 

file briefs in support or opposition. (Doc. 70).

The motions are now ripe for consideration7. 

II. STANDARD OF REVIEW

 

Jacoby v. Baldwin County Jail, Civ. No. 12-197-WS-M, 2013 WL 2285108, 

2013 U.S. Dist. LEXIS 72212 (S.D. Ala. May 7, 2013).

7 More than two weeks after the deadline for filing opposition 

briefs, Jacoby, on March 14, 2016, filed a motion for an extension of 

time contending that he had been raped and kidnapped; thus, was unable 

to timely file his response. (Doc. 74). However, the undersigned 

finds that Jacoby’s request is due to be denied. The docket reflects 

that mere days earlier, on March 9, 2016, Jacoby filed a document 

informing the Court that he wanted to proceed with this case, that he 

was not going anywhere, and that he wanted his day in court. At that 

point, Jacoby did not indicate a desire to file a response, request an 

extension of time to file to file a response, or apprise the Court of 

any problems encountered in filing a response. In view of such, 

Jacoby’s extension request is denied. 

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Summary judgment is proper “if the movant shows that there 

is no genuine dispute as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 

L. Ed. 2d 265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158, 

1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even if 

‘some alleged factual dispute’ between the parties remains, so 

long as there is ‘no genuine issue of material fact.’”(emphasis 

in original)). 

The party asking 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 ‘pleadings, depositions, answers 

to interrogatories, and admissions on file, together 

with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material 

fact.” Id. at 323. The movant can meet this burden by 

presenting evidence showing there is no dispute of 

material fact, or by showing, or pointing out to, the 

district court 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.

Once the moving party has met its burden, Rule 56(e) 

“requires the nonmoving party to go beyond the 

pleadings and by [its] own affidavits, or by the 

‘depositions, answers to interrogatories, and 

admissions on file,’ designate ‘specific facts showing 

that there is a genuine issue for trial.’” Id. at 324. 

To avoid summary judgment, the nonmoving party “must 

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do more than show that there is some metaphysical 

doubt as to the material facts.” Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 

106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). On the 

other hand, the evidence of the nonmovant must be 

believed and all justifiable inferences must be drawn 

in its favor. See Anderson, 477 U.S. at 255.

ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 926 

F.Supp.2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013) (citations 

omitted). 

As noted supra, the Court, in considering whether 

Defendants are entitled to summary judgment in this case, views 

the facts in the light most favorable to Plaintiff. Comer v. 

City of Palm Bay, Florida, 265 F.3d 1186, 1192 (llth Cir. 2001) 

(“We view the evidence and all factual inferences raised by it 

in the light most favorable to the non-moving party, and resolve 

all reasonable doubts about the facts in favor of the non-moving 

party.”). The requirement to view the facts in the nonmoving 

party’s favor extends only to “genuine” disputes over material 

facts. A genuine dispute requires more than “some metaphysical 

doubt as to material facts.” Garczynski v. Bradshaw, 573 F.3d 

1158, 1165 (11th Cir. 2009) (internal citations omitted). A 

“mere scintilla” of evidence is insufficient; the nonmoving 

party must produce substantial evidence in order to defeat a 

motion for summary judgment. Id.

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Moreover, where “opposing parties tell two different 

stories, one of which is blatantly contradicted by the record, 

so that no reasonable jury could believe it, a court should not 

adopt that version of the facts for purposes of ruling on a 

motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 

380, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007); see also

Logan v. Smith, 439 F.App’x 798, 800 (llth Cir. Aug. 29, 2011) 

(“In cases where opposing parties tell different versions of the 

same events one of which is blatantly contradicted by the 

record—such that no reasonable jury could believe it—a court 

should not adopt the contradicted allegations.” (citations 

omitted) (unpublished)).8

Additionally, the undersigned recognizes that while the 

Court is required to liberally construe a pro se litigant’s 

pleadings, the Court does not have “license to serve as de facto

counsel for a party . . . or to rewrite an otherwise deficient 

pleading in order to sustain an action.” GJR Invs., Inc. v. 

Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) 

(citations omitted), overruled on other grounds by Randall v. 

Scott, 610 F.3d 701 (11th Cir. 2010); see also Giles v. Wal-Mart 

Distrib. Ctr., 359 F.App’x 91, 93 (11th Cir. 2009) (internal 

 

8 “Unpublished opinions are not considered binding precedent, but 

may be cited as persuasive authority.” 11th Cir. R. 36-2.

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citations and quotations omitted) (“Although pro se pleadings 

are held to a less strict standard than pleadings filed by 

lawyers and thus are construed liberally, this liberal 

construction does not give a court license to serve as de facto

counsel for a party, or to rewrite an otherwise deficient 

pleading in order to sustain an action.”). 

Based upon a liberal construction of Jacoby’s complaint, 

the Court construes his factual allegations as asserting an

excessive force claim based upon his altercation with Defendants

in January 2013, a claim that the conditions of his confinement 

are constitutionally inadequate, claims that his due process 

rights were violated by the searches and disciplinary procedures 

he faced, claims of retaliation by prison officials, and claims 

that the Defendants acted with deliberate indifference in 

setting policies and procedures. The undersigned will discuss 

each of these claims in turn individually below.

II. DISCUSSION 

A. Qualified Immunity 

1. Official Capacity

It is well-established that, “suits against an official in 

his or her official capacity are suits against the entity the 

individual represents.” Parker v. Williams, 862 F.2d 1471, 1476 

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n.4 (11th Cir. 1989), overruled on other grounds in Turquitt v. 

Jefferson County, 137 F.3d 1285, (11th Cir. 1998); see Monell v 

Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 56 

L. Ed. 2d 611 (1978)(“[O]fficial capacity suits generally 

represent only another way of pleading an action against an 

entity of which an officer is an agent.”); Farred v. Hicks, 915 

F.2d 1530, 1532 (11th Cir. 1990). For the purposes of qualified 

immunity, it is not disputed that Defendants are state 

officials. 

Thus, to the extent that Jacoby’s claims are against the 

Defendants in their official capacities, his claims are 

effectively claims against the State of Alabama. The Supreme 

Court has held that states and state officials are not “persons” 

subject to liability pursuant to 42 U.S.C. § 1983. See Will v. 

Mich. Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 

L. Ed. 2d 45 (1989). Further, pursuant to the Eleventh Amendment 

of the United States Constitution, a state’s own citizens may 

not sue unless the state consents to suit or Congress acts to 

abrogate immunity. See Carr v. Florence, 916 F.2d 1521, 1524-25 

(11th Cir. 1990). There is nothing before the Court that suggests 

that the State of Alabama has consented to the suit or that 

Congress has acted to abrogate immunity. Accordingly, Defendants 

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have absolute immunity against the claims asserted against them 

in their official capacities. 

2. Individual Capacity

"Qualified immunity offers complete protection 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.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) 

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 

2727, 2738, 73 L. Ed. 2d 396 (1982)). A law enforcement officer 

is entitled to qualified immunity if "an objectively reasonable 

officer in the same situation could have believed that the force 

used was not excessive." Id. Qualified immunity from suit is 

intended to "allow government officials to carry out their 

discretionary duties without the fear of personal liability or 

harassing litigation, protecting from suit all but the plainly 

incompetent or one who is knowingly violating the federal law." 

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal 

quotation marks and citations omitted).

Courts utilize a two-part framework to evaluate individual 

capacity qualified immunity claims. One inquiry in a qualified 

immunity analysis is whether the plaintiff's allegations, if 

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true, establish a constitutional violation. Hope v. Pelzer, 536 

U.S. 730, 736, 122 S. Ct. 2508, 2513, 153 L. Ed. 2d 666 (2002) 

(citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 

2156, 150 L. Ed. 2d 272 (2001)). If the facts, construed in the 

light most favorable to the plaintiff, show that a 

constitutional right has been violated, another inquiry is 

whether the right violated was "clearly established." Saucier v. 

Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 150 L. Ed. 2d 272 

(2001). The Eleventh Circuit has observed that in determining 

whether a right was “clearly established”, the courts do not 

require a case directly on point; however, “existing precedent 

must have placed the statutory or constitutional question beyond 

debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 

2074, 2083, 179 L. Ed. 2d 1149 (2011) (internal quotation marks 

omitted). Id., at 741, 131 S. Ct. at 2083; see also Wilson v. 

Blankenship, 163 F.3d 1284, 1288 (11th Cir. 1998)(internal 

citation omitted)(emphasis in original)(“General propositions 

and abstractions do not qualify for bright line, clearly 

established law. For qualified immunity to be surrendered, preexisting law must dictate, that is, truly compel (not just 

suggest or allow or raise a question about), the conclusion for 

every like-situated, reasonable government agent that what 

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defendant is doing violates federal law in the circumstances.”). 

Both elements of the two part test must be present for an 

official to lose qualified immunity, and this two-pronged 

analysis may be done in whatever order is deemed most 

appropriate for the case. Pearson v. Callahan, 555 U.S. 223, 129 

S. Ct. 808, 821, 172 L. Ed. 2d 565 (2009).

Before applying the two-part test, the initial inquiry in a 

qualified immunity case is whether the public official proves 

"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) (internal quotation 

marks omitted). In this case, no one has disputed that 

Defendants were acting within the scope of their discretionary 

authority as jail officials at the time of the incidents 

asserted in the complaint. Thus, the inquiry before the Court is 

whether qualified immunity is available as a defense to Jacoby’s 

individual capacity claims. 

For the reasons detailed below, the Court finds that no 

genuine issue of material fact exists in support of Jacoby’s 

claims of alleged constitutional violations, and that the 

Defendants are entitled to summary judgment on all claims as a 

matter of law. 

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B. Excessive Force Claim 

As noted supra, Jacoby contends that Defendants used 

excessive force when he was pepper sprayed on January 6, 2013, 

and placed in a restraint chair for 8 and one-half hours without 

being properly decontaminated. The analysis of an excessive 

force claim brought under § 1983 begins with determining the 

specific constitutional right allegedly infringed by the 

challenged application of force. Graham v. Conner, 490 U.S. 386, 

394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The Fourteenth 

Amendment prohibits the use of excessive force against pretrial 

detainees, such as Jacoby9 . See, e.g., Cottrell v. Caldwell, 85 

F.3d 1480, 1490 (11th Cir. 1996) ("Claims involving mistreatment 

of arrestees or pretrial detainees in custody are governed by 

the Fourteenth Amendment's Due Process Clause[.]"). "In order to 

determine whether the amount of force used by an . . . officer 

was proper, a court must ask whether a reasonable officer would 

believe that this level of force is necessary in the situation 

at hand." Lee, 284 F.3d at 1197; see also Graham v. Connor, 490 

U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). 

Thus, the Court evaluates pretrial detainee excessive force 

 

9 As noted, the record reflects that at the time of the 

January/February 2013 incidents alleged in the Jacoby’s complaint, he 

was a pretrial detainee at the Baldwin county jail.

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claims under an objective reasonableness standard. Kingsley v. 

Hendrickson, 135 S. Ct. 2466, 2473-74, 192 L. Ed. 2d 416 (2015); 

see also Mobley v. Palm Beach Cty. Sheriff Dep't, 783 F.3d 1347, 

1353 (11th Cir. 2015) (explaining that the objective 

reasonableness standard "asks whether the force applied is 

objectively reasonable in light of the facts confronting the 

officer, a determination we make from the perspective of a 

reasonable officer on the scene and not with the 20/20 vision of 

hindsight.").

In examining excessive force claims, courts should keep in 

mind that "[o]fficers facing disturbances 'are often forced to 

make split-second judgments—in circumstances that are tense, 

uncertain, and rapidly evolving.'" Kingsley, 135 S. Ct. at 2474 

(quoting Graham, 490 U.S. at 397). Furthermore, "a court must 

take account of the legitimate interests in managing a jail, 

acknowledging as part of the objective reasonableness analysis 

that deference to policies and practices needed to maintain 

order and institutional security is appropriate." Id.; Bell v. 

Wolfish, 441 U.S. at 547 ("Prison officials must be free to take 

appropriate action to insure the safety of inmates and

corrections personnel."); Wilson v. Blankenship, 163 F.3d 1284, 

1295 (11th Cir. 1998)("The courts will not normally "secondCase 1:13-cv-00070-KD-B Document 75 Filed 03/22/16 Page 19 of 41
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guess prison officials on matters that they are better equipped 

to handle under the exigencies of an internal disturbance.””).

Thus, an objective determination of unreasonableness must 

be made from the perspective of a reasonable officer on the 

scene, and includes what the officer knew at the time. Id.

(citing Graham, 490 U.S. at 296). This determination must 

account for the “legitimate interests [stemming from the 

government’s] need to manage the facility in which the 

individual detained”, and must defer to “policies and practices 

that in th[e] judgment” of jail officials are necessary to 

“preserve internal order and discipline and to maintain 

institutional security”. Id. at 2468, 2471-2473 (citing Bell v. 

Wolfish, 441 U.S. 520, 540, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447). 

The Court in Kingsley cited several factors that could be 

helpful in this analysis. These include the relationship between 

the need for force and the amount of force used, the extent of 

the plaintiff’s injury, any effort made by the officer to limit 

the amount of force used, the severity of the security problem 

at issue, the threat reasonably perceived by the officer, and 

whether the plaintiff was actively resisting. Kingsley, 576 S.Ct 

at 2473. These factors are not meant to be exhaustive or 

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21

exclusive, only an illustration of the types of objective 

circumstances that could be potentially relevant. Id.

The use of chemical agents, mace, or the pepper spray has 

been found not to violate the Eighth Amendment when its use is 

reasonable and necessary to prevent riots and to subdue 

recalcitrant prisoners. Williams v. Benjamin, 77 F.3d 756, 762-

63 (4th Cir. 1996) (finding that the spraying of mace in the 

face and chest of a recalcitrant prisoner while in his cell did 

not constitute cruel and unusual punishment because he had been 

throwing water and refused to remove his arm from a food service 

slot); Soto v. Dickey, 744 F.2d 1260, 1270-71 (7th Cir. 1984) 

(upholding the use of mace in a prisoner's cell because he 

refused to be handcuffed), cert. denied, 470 U.S. 1085, 105 S. 

Ct. 1846, 85 L. Ed. 2d 144 (1985); Clemmons v. Greggs, 509 F.2d 

1338, 1340 (5th Cir. 1975) (ruling that there was no 

constitutional violation when mace was used during a disturbance 

because there was no intent to punish), cert. denied, 423 U.S. 

946, 96 S. Ct. 360, 46 L. Ed. 2d 280 (1975); Geas v. DuBois, 868 

F. Supp. 19, 24 (D. Mass. 1994) (ruling that "'the use of nondangerous quantities of [a chemical agent] in order to prevent a 

perceived future danger does not' generally overstep 

constitutional parameters."); Blair-El v. Tinsman, 666 F. Supp. 

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22

1218, 1222 (S.D. Ill. 1987) (finding that officers acted 

reasonably when they sprayed a chemical spray into an inmate's 

cell to quell a disturbance); cf. Ort v. White, 813 F.2d 318, 

324 (11th Cir. 1987) (relying on the decision in Soto v. Dickey

in which chemical agents were used, to determine that the denial 

of water was an immediate, coercive measure, and not 

punishment). It is only a "violation of the Eighth Amendment 

[Fourteenth Amendment] for prison officials to use mace or other 

chemical agents in quantities greater than necessary or for the 

sole purpose of punishment or the infliction of pain." Soto, 744 

F.2d at 1270. "A limited application of mace may be 'much more 

humane and effective than a flesh to flesh confrontation with an 

inmate.'" Williams v. Benjamin, 77 F.3d 756, 763 (quoting Soto, 

744 F.2d at 1262).

In the case at hand, the evidence is undisputed that 

officers used pepper spray on January 7, 2013. The undersigned 

observes however that the events of January 7, 2013 cannot be 

viewed in isolation. Indeed, Defendants assert and Jacoby does 

not dispute that prior to this incident, he had a number of 

physical encounters with staff at the Baldwin County jail. 

Indeed, in Jacoby v. Baldwin County, 596 Fed. Appx. 757 (llth 

Cir. 2014), the Eleventh Circuit addressed Jacoby’s claim in 

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Jacoby I that the district court improperly granted summary 

judgment on his claim that a Baldwin County jail official used 

excessive force against him on December 22, 2011, when officers 

used pepper spray to subdue him after he cut himself with a 

razor blade even though he was lying on his cell floor bleeding 

from his wounds. Jacoby also claimed that the officers failed to 

decontaminate him for eight hours. In affirming the district 

court’s grant of summary judgment in favor of the officers, the 

court found that the officers were justified in their use of 

pepper spray as Jacoby had previously “threatened violence in 

addition to self harm,” and that the officers reasonably could 

have believed Jacoby might use the razor in defense when the 

officers approached him or that he might harm himself further. 

Id. at 766.

Also, in Jacoby II, Jacoby asserted excessive force claims 

against jail officials after he was sprayed with pepper spray on 

April 13, 2012 and placed in a restraint chair for eight and 

one-half hours. In denying Jacoby’s excessive force claim, the 

court found that just prior to the incident, Jacoby was upset, 

yelling, screaming, and demanding an officer’s help after 

realizing some of his personal items had been removed from his 

possession for the duration of his housing in segregation, and 

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that the defendant had warned him that if he did not cease the 

disruption he would be put in segregation. Jacoby II, Civ. No. 

12-366-CG-C, 2014 WL 2435655, 2014 U.S. Dist. LEXIS 74768 (S.D. 

Ala Mar. 18, 2014). The Court concluded that “given [Jacoby’s] 

recalcitrant behavior, the initial use of force, the OC spray, 

was reasonable and was used in good faith effort to maintain or 

restore discipline.” Id. at 13. The Court also found no 

constitutional violation with respect to the subsequent use of 

the restraint restraint chair given that Jacoby admitted that he 

was warned that he would be placed in the chair if he did not 

obey orders, and stop yelling and kicking, and aside from some 

burning from the spray, he suffered no injury and required no 

medical care. Id. at 14. Thus, the Court concluded that Jacoby’s 

persistent hostile behavior while restrained in the chair 

reasonably justified Defendants not releasing him sooner or 

releasing him to go to the restroom. Id. at 14-17.

In the case at hand, Jacoby contends that he did not do 

anything to cause the officer to spray him. According to Jacoby, 

when the officers entered his cell, he was laying on his stomach 

in a defenseless position with his arms in the air. The video 

produced in discovery reflects that Jacoby was actually propped 

on his knees and that his arms are not visable when officers 

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entered the cell and directed him to get down to the floor. 

(Doc. 32-8). The video also shows that after a quick shot of the 

pepper spray in the direction of the back of Jacoby’s head, he 

is placed on the floor by officers, and his hands are then 

handcuffed behind his back. He is brought to his feet and 

immediately led out of the cell to be decontaminated. As Jacoby 

is lead down the hallway, he can be heard quarreling with 

officers about why they came into his cell and why he was 

sprayed. When he is told that he refused to stop kicking the 

door when he was directed to do so, Jacoby does not deny 

repeatedly kicking the door. Instead, he questions whether that 

was sufficient to warrant the officers entering his cell, and 

spraying him. (Id.) 

The video shows that Jacoby is taken to a closet area where 

he lends over a sink, and an officer uses a water hose to 

thoroughly rinse his face and the back of his head. The officer 

then uses several towels to dry Jacoby’s face and the back of 

his head. While Jacoby might contend that the officers should 

have given him more time to comply with their directive to get 

to the floor, the undersigned will not second guess the actions 

of the officers in maintaining order in the facility given 

Jacoby’s history of disruptive behavior and physical encounters 

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with the jail staff, his refusal to stop kicking the cell doors 

when directed to do so, and the fact that upon entering the 

cell, officers directed him to get down, but it does not appear 

that he made any effort to do so before the pepper spray was 

used10. See Gardner v. Mack, 2015 U.S. Dist. LEXIS 25395, 2015 WL 

877249 (S.D. Ala. Jan. 30, 2015)(“It is arguable [the defendant] 

may have been successful in extracting Plaintiff from his cell 

without the use of pepper spray, since Plaintiff appeared to be 

surrendering to Defendant's will, but a single burst of the 

chemical agent following an inmate's failure to comply with 

orders, combined with his escalating obtrusive behavior, is not 

the type of force that shocks the conscious or equates to an 

Eighth Amendment violation.”). Under the circumstances of this 

case, the undersigned finds that the use of a quick squirt of 

pepper spray was reasonable and likely kept the situation from 

further escalating.

With respect to the use of the restraint chair, Jacoby 

contends that he was in the chair for 8 and one-half hours, that 

 

10 The undersigned notes that a “Use of Force” form was completed 

following the use of pepper spray, and after a review of the incident, 

it was determined that the use of spray was appropriate under the 

circumstances; however, a corporal was reprimanded because she 

permitted a subordinate to use the spray when she had been instructed 

that she was to personally handle the use of spray if necessary. 

(Docs. 32-3, Doc. 32-7).

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he was not permitted to shower, change clothes or use the 

restroom, and as a result, his eyes, back and lower body were 

burning from the spray, and he urinated on himself. The video 

shows that Jacoby was clothed in short pants, and that 

immediately prior to being placed in the restraint chair, his 

face and the back of his head were thoroughly rinsed. (Doc. 8). 

The video also reflects that the restraint chair was located in 

an open hallway which makes for easy monitoring, and that Jacoby 

continued to be argumentative and made known to officers his 

displeasure with the decision to place him in the chair. (Id.) 

And, Jacoby acknowledges that he kept crying out for a shower. 

(Doc. 39 at 15).

Defendants contend that the restraint chair is never used 

for punishment at the jail, but is instead used to ensure the 

safety and security of the facility. (Doc. 32-1). According to 

Defendants, Jacoby had a history of acting out when he thought 

his situation was somehow unfair, or if he wanted attention, 

even if it meant harming himself or putting others at risk. 

(Doc. 32-3). According to Defendants, inmates such as Jacoby are 

kept in the chair until it is determined that they can control 

their behavior and no longer present a threat to themselves or 

others. (Doc. 32-1).

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The undersigned finds that Defendants did not act 

unreasonable in utilizing the chair given Jacoby’s history of 

physical confrontations with the staff, self injury and 

disruptive behavior. As noted, the day before the incident, 

Jacoby had been placed in administrative segregation while 

officials investigated the tobacco that was found on his pod 

area. Apparently upset because he felt he was unfairly 

implicated in the incident, and placed in segregation, Jacoby 

chose to act out by repeatedly kicking the door despite being 

directed to stop. Rather than allow the situation to escalate 

with Jacoby, Defendants acted quickly to bring him under control 

by placing him in the restraint chair11. (Doc. 32-3). Under these 

circumstances, where Jacoby suffered no injury, aside from 

slight burning from a quick squirt of pepper spray, and required 

no medical care, the undersigned finds that the use of the 

restraint chair to preserve internal order and safety in the 

facility was reasonable and thus, did not rise to the excessive 

force. Accordingly, Defendants are entitled to summary judgment 

on Plaintiff’s excessive force claim. 

 

11 There is nothing in the record that indicates that Jacoby was 

charged with a disciplinary offense as a result of the incident on 

January 7, 2013. Instead, in utilizing the restraint chair, it 

appears that officials were attempting to closely monitor Jacoby and 

bring him under control.

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C. Conditions of Confinement

Jacoby claims that the conditions of his confinement in FBlock at the Baldwin County facility are constitutionally 

inadequate. In support of this claim, he describes sleeping “in 

a 1 or 2 man cell in the floor with 3 people in it because 

segregation was overcrowded” and being “forced to sleep with 

urine splattering on him, on his sheets with pubic hairs, body 

hairs, and dirt all over him for 3 days because he was forced to 

sleep on the floor”. (Doc. 1 at 5). He further claims that he 

was “denied outside recreation for 3 days, periodicals to read, 

and the opportunity to purchase hygiene products” while in 

segregation due to the Baldwin County facility’s policies 

regarding inmates in segregation. (Id.). Additionally, he claims 

he is a “serious to severe mentally ill inmate and should not be 

housed under these extreme conditions” [i.e., segregation]. (Id. 

at 6). The undersigned finds that Plaintiff’s claims regarding 

the conditions of his confinement are barred by the doctrine of 

res judicata as they have been litigated and decided adversely 

against Jacoby in Jacoby I, Jacoby II, and Jacoby III, or they 

could have been litigated in those actions.

“Res judicata is a judicially crafted doctrine, created to 

provide finality and conserve resources.” Maldonado v. United 

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States AG, 664 F.3d 1369, 1375 (llth Cir. 2011); Polk v. Sears 

Roebuck & Co., 2012 U.S. Dist. LEXIS 65050 (S.D. Ala. May 8, 

2012). “The doctrine facilities the conclusive resolution of 

disputes by reducing the expense and vexation attending to 

multiple lawsuits, conserv[ing] judicial resources, and 

foster[ing] reliance on judicial action by minimizing the 

possibility of inconsistent decisions.” Shurick v. Boeing Co., 

623 F. 3d 1114, 1116 (llth Cir. 2010). Res judicata applies if 

all of the following four elements are present: “(1) there is a 

final judgment on the merits; (2) the decision was rendered by a 

court of competent jurisdiction; (3) the parties, or those in 

privy with them, are identical in both suits; and 4) the same 

cause of action is involved in both cases.” Maldonado, 664 F. 3d 

at 1375 (omitted citations). If those elements are present, 

“[t]he court next determines whether the claim in the new suit 

was or could have been raised in the prior action; if the answer 

is yes, res judicata applies. . .if even one of these elements 

is missing, res judicata is inapplicable.” In Re Piper Aircraft, 

244 F. 3d 1289, 1296 (11th Cir. 2001).

As noted supra, this is the fourth lawsuit that Jacoby has 

filed against Defendant Mack and various individuals employed by 

the Baldwin County jail. In Jacoby II, Jacoby alleged that 

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while housed in segregation, he was denied visits, television, 

books, space to walk and exercise, grooming and hygiene 

products, access to materials to write letters or legal 

documents, access to outside recreation and only allowed 30 

minutes of indoor recreation a day, and was housed in a “2-man” 

segregation unit with three of four other inmates which forced 

him to sleep on the floor beside the toilet where urine would 

sometimes “splatter” on his sheets. Upon consideration, the 

Court in Jacoby II held that “[t]aking Plaintiff’s allegations 

as true, there [has] not been an “extreme” deprivation of life’s 

basic necessities evidenced nor a risk of serious harm”, and 

that “[e]ven the less than sanitary sleeping arrangement 

asserted by Plaintiff does not rise to the level of being 

unconstitutional. Jacoby II, Civ. No. 12-00366-CG-C, 2014 WL 

2435655, 2014 U.S. Dist. LEXIS 74768 (Mar. 18, 2014). See also

Jacoby III 2014 WL 2541834, 2014 U.S. Dist. LEXIS 81477 (S.D. 

Ala. Mar. 18, 2014)(Jacoby’s claim that Sheriff Mack created 

unconstitutional policies that unnecessarily deprived him of 

periodicals, stationary, postage stamps, hygiene products, and 

outdoor recreation while housed in the segregation unit “do not 

amount to the denial of a basic human need”. . . “nor do they 

evidence a deliberate indifference to a substantial risk of 

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32

serious harm to plaintiff’s health or safety.”). Given that in 

this action, Jacoby is seeking to bring many of these same 

issues that were adversely decided against him in Jacoby II, and 

Jacoby III, the undersigned finds that res judicata bars him 

from relitigating those claims in this action. While Defendant 

Sheriff Mack is the only defendant in this action that was also 

named in Jacoby II, and Jacoby III, the undersigned finds that 

there is clear privity between the defendants with respect to 

Jacoby’s claims regarding the conditions in segregation at the 

Baldwin County facility.

Further, as held by the Court in Jacoby III, “Plaintiff’s 

claim that Defendants Bryne and Mack breached his constitutional 

rights by not having and not placing him in a separate facility 

for seriously-severely mentally ill inmates could have been 

raised by Plaintiff in Jacoby I; therefore, that claim is also 

barred.” Jacoby III, Civ. No. 12-00640-CG-N, 2014 WL 2641834, 

2014 U.S. Dist. LEXIS 81477 (S.D. Ala. Mar. 18, 2014). 

Accordingly, the undersigned finds that Defendants are entitled 

to summary judgment on Jacoby’s claims regarding conditions at 

the Baldwin County facility because those claims are barred by 

res judicata.

D. Due Process 

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Jacoby also raises due process claims based upon the search 

of his cell on January 27-29, 2013 and the disciplinary 

proceedings brought against him regarding the incident on 

February 4, 2013. He claims that the hearing “was never recorded 

for appellate purposes, the disciplinary was not notarized by a 

notary as the form states it should be, there was no hearing 

notice date on the paperwork” and that he “never received a copy 

of the disciplinary charges in a timely manner”. (Doc. 1 at 10). 

According to Jacoby, he did not receive notice of the charges 

until two days after the incident, and that he was written up on 

a “bogus weapons charge because she [Sgt. Lovett] couldn’t find 

nothing else to write Jacoby up for”. (Id.). As a result of this 

hearing, Jacoby was put in segregation for thirty days. (Id.). 

As an initial matter, the undersigned finds that Jacoby’s 

claim that Defendants violated his rights because they do not 

allow recording of the disciplinary hearings is subject to the 

same ruling as in Jacoby III. In Jacoby III, the court held 

that Plaintiff could not prevail on that claim because the 

alleged inadequacies in Defendant’s disciplinary hearing 

procedures did not give rise to a constitutionally protected 

liberty interest. Jacoby III, Civ. No. 12-00640-CG-N, 2014 WL 

2641834, 2014 U.S. Dist. LEXIS 81477 (S.D. Ala. Mar. 18, 2014)

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With respect to Jacoby’s other claims, the Supreme Court 

has specifically held that cell searches implicate neither the 

Fourth nor the Fourteenth Amendment, but are “matter[s] lodged 

in the sound discretion of the institutional officials.” Block 

v. Rutherford, 468 U.S. 576, 590-91 (1984). Additionally, 

prison disciplinary proceedings “are not part of a criminal 

prosecution, and the full panoply of rights due a defendant in 

such proceedings does not apply . . .In sum, there must be a 

mutual accommodation between institutional needs and objectives 

and the provisions of the Constitution that are of general 

application.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 

2963, 2675, 41 L. Ed. 2d 935 (1974). In recognition of these 

principles, the Court has held that a prisoner must receive 

notice of the charges against him prior to the hearing; he must 

be allowed to call witnesses and present evidence, as long as 

this presentation does not pose a threat to the safety and 

security of the institution, and there must be a written 

finding. Id.

In this action, it is undisputed that Jacoby received 

written notice of the charges against him, and was able to 

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prepare a full defense 12 . (Doc. 32-1). The fact that these 

notices were not in Jacoby’s preferred form does not amount to a 

deprivation of due process. Moreover, the only consequence 

Jacoby suffered because of the disciplinary proceedings against 

him was transfer to disciplinary segregation with an 

accompanying loss of privileges. 

Disciplinary segregation is not a “dramatic departure” from 

the ordinary conditions of confinement for an inmate, and 

therefore does not in and of themselves trigger specific due 

process procedures like those required in a criminal trial.

Sandin v. Conner, 515 U.S. 472, 485 (1995), see also Rodgers v. 

Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998)(affirming two 

months in administrative segregation was not a constitutionally 

protected liberty interest requiring the protection of due 

process); cf. Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th

Cir. 1996)(finding that twelve months of solitary confinement 

was an atypical hardship of an inmate and created a liberty 

interest entitled to due process protection). See Jacoby III, 

2014 WL 2435655 at *13 (brief sentences of 24 days in 

segregation and 45 days in segregation do not amount to a 

 

12 The written Notice of Disciplinary form reflects that Jacoby 

signed the notice and made a notation that he was not provided with a 

copy of the form. (Doc. 32-7 at 4).

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36

significant hardship and are not a dramatic departure from the 

ordinary conditions of confinement; thus no liberty interest 

existed that would give rise to constitutional due process 

protection.). Because Jacoby does not have a protectable 

interest, he cannot prevail on any due process claim. See, e.g., 

Sandin v. Conner, 515 U.S. at 485-86.

E. Retaliation 

Jacoby alleges that he was subjected to searches and 

disciplinary proceedings because Sgt. Lovett “was upset over 

Jacoby writing Grievances and Lawsuits on her and Filing for 

Restraining Orders.” (Doc. 1 at 6). Jacoby has raised this same 

issue albeit with respect to other individuals at the Baldwin 

County facility, and the court had determined that there was no 

evidentiary support for claims of retaliation. Jacoby II, 2014 

WL 2435655 at *19, 2014 U.S. Dist. LEXIS 74768. The same holds 

true with respect to the instant petition. As observed in Jacoby 

II, to succeed on a claim for retaliation under § 1983, a 

Plaintiff: 

“must allege (1) a specific constitutional right, 

(2) the defendant’s intent to retaliate against the 

prisoner for his or her exercise of that right, (3) 

a retaliatory adverse act, and (4) causation. 

McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 

1998). The inmate must allege more than his 

personal belief that he is the victim of 

retaliation. Johnson v. Rodriguez, 110 F.3d 299, 

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310 (5th Cir.) cert denied, 522 U.S. 995, 118 S. Ct. 

599, 139 L. Ed. 2d 400 (1997). Mere conclusory 

allegations of retaliation will not be enough to 

withstand a proper motion for dismissal of the 

claim. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 

1995). The inmate must produce direct evidence of 

the motivation or, the more probable scenario, 

“allege a chronology of events from which 

retaliation may plausibly be inferred.’ Id.

(citation omitted).”

Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Jacoby 

II, 2014 WL 2434655 at *19, 2014 U.S. Dist. LEXIS 74768. Jacoby 

asserts that Sgt. Lovett ordered a “hit” on him which led to him 

being sprayed with pepper spray on January 7, 2013, and that she 

acted in order to retaliate against him for his many grievances 

and lawsuits. Aside from his conclusory allegations however, 

Jacoby has not offered any facts that suggest, let alone 

demonstrate, that Defendant Lovett sought to retaliate against 

him. In fact, he has not even identified any specific grievance 

or lawsuit that purportedly led Sgt. Lovett to take any type of 

retaliatory action. And, he has only made vague allegations of 

retaliation on the part of the other Defendants. 

Neither incident comprising the alleged retaliation 

violated any of Jacoby’s rights. Indeed, it seems that Jacoby’s 

main argument is that the actions central to this petition were 

so unjustified that there was no other reason besides 

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retaliation to support them, but this is not evidence sufficient 

to prevail on this claim 13 . Therefore, this claim is without 

merit, and the Defendants are entitled to summary judgment with 

respect to this claim. 

e. Policy and Procedure Claims 

Jacoby alleges that the problems discussed supra are 

evidence of a widespread problem with the policies and 

procedures in place at the Baldwin County jail. (Doc. 1 at 9). 

To the extent possible, the court will analyze these claims as 

allegations of supervisory liability with regard to Sheriff Mack 

and Captain Bennett. On this subject, the Eleventh Circuit held: 

[Supervisory] liability under section 1983 must be 

based on something more than a theory of respondeat 

superior. Supervisory liability occurs either when 

the supervisor personally participates in the 

alleged constitutional violation or when there is a 

causal connection between actions and the 

supervising official and the alleged constitutional 

violation. The causal connection can be established 

when a history of widespread abuse puts the 

 

13 Assuming arguendo there was a genuine issue of material fact as 

to the retaliatory motives of the Defendants, the second step of the 

objective analysis followed by the Eleventh Circuit would still 

entitle the Defendants to summary judgment. Under this standard, once 

the Plaintiff has met the burden of establishing that a protected 

conduct was a motivating factor behind any harm, the burden shifts to 

the defendant to show that he would have taken the same action in the 

absence of the protected activity. Smith v. Mosley, 532 F.3d 1270, 

1278 (11th Cir. 2008 (citations omitted). As discussed at length in 

this order, the actions of all Defendants in this case were those of 

reasonable officials, and it is reasonable to conclude that they would 

have taken the same actions to maintain institutional security without 

any allegedly improper motive. 

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responsible supervisor on notice of the need to 

correct the alleged deprivation, and he fails to do 

so. 

Dolihite v. Maughon, 74 F.3d 1027, 1052 (11th Cir. 1996). As 

Jacoby has not established the violation of any rights, he 

cannot establish that Defendants acted with deliberate 

indifference in setting policy and procedures. See, e.g., Cagle 

v. Sutherland, 334 F.3d 980, 989 (11th Cir. 2003). 

Moreover, in Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009), 

the Supreme Court stated: 

In a section 1983 suit...where masters do not answer 

for the torts of their servants – the term 

‘supervisor liability’ is a misnomer. Absent 

vicarious liability, each Government official, his 

or her own title notwithstanding, is only liable 

for his or her own misconduct. 

Id.; see also Iqbal, 556 U.S. at 693 (Souter, J. 

dissenting)(“Lest there by any mistake in these words the 

majority is not narrowing the scope of supervisor liability; it 

is eliminating Bivens supervisory liability entirely.”). 

In order to establish a causal connection between the 

supervisor’s actions and the alleged constitutional violation, a 

plaintiff must show either “a history of widespread abuse [that] 

puts the reasonable supervisor on notice of the need to correct 

the alleged deprivation” [which is the standard arguably altered 

by Iqbal] or an inference “that the subordinates would act 

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40

unlawfully and failed to stop them from doing so.” Keith v. 

DeKalb Cnty., Georgia, 749 F.3d 1034, 1047-48 (11th Cir. 

2014)(citations omitted). “The deprivations that constitute 

widespread abuse sufficient to notify the supervising official 

must be obvious, flagrant, rampant, and of continued duration, 

rather than isolated occurrences.” Id. (citing Hartley v. 

Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)). 

Jacoby alleges generally that Defendants Mack and Bennett 

were “aware of the problems with spray but won’t fix it” (Doc. 1 

at 12), but he points to no evidence beyond his own grievances 

to support this allegation. Further, the Court takes judicial 

notice of the fact that in Jacoby’s three previous lawsuits 

filed while housed at the Baldwin County jail, his excessive 

force claims were found to be without merit. Additionally, the 

record before this Court is devoid of any evidence suggesting 

that Defendants Mack or Bennett were aware of a pattern of 

constitutional infirmities in regard to Jacoby’s condition of 

confinement at the facility, and there is no allegation that 

either Defendant was personally involved in the alleged 

incidents. Accordingly, Defendants are entitled to summary 

judgment on this claim. 

III. CONCLUSION

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For the reasons set forth above, the undersigned concludes 

that Defendants are entitled to summary judgment in their favor 

on all claims asserted against them by Jacoby. Accordingly,

Defendants’ Motion for Summary Judgment is GRANTED, this action 

is DISMISSED with prejudice, and judgment is entered in favor of 

Defendants and against Plaintiff Brent Jacoby.

DONE and ORDERED this the 21st day of March 2016.

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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