CALLIE V. S. GRANADE, Senior District Judge.
This matter is before the Court on Defendants Officers Joshua Keers and John Rowell's renewed motion for summary judgment (Docs. 102, 103), Plaintiff's response in opposition (Doc. 108), and Defendants' reply thereto (Doc. 111). For the reasons stated below, the Court finds the Defendants' motion for summary judgment is due to be granted.
Plaintiff Brent Jacoby, at the time relevant to the instant action, was a pretrial detainee at the Baldwin County Sheriff's Corrections Center (BCSCC). By April 2012, Plaintiff had developed a reputation for being "a difficult inmate who sought to be the center of attention and would regularly disrupt the orderly running of the BCSCC." (Doc. 103-1, p. 2). Based on his disciplinary report and his volatile, problematic behavior, BCSCC officers and officials used "extra caution when handling Jacoby."
On April 13, 2012, BSCSS officials removed Plaintiff from his cell to administrative segregation pending a disciplinary hearing. (Doc. 103-2, p. 4). Upon realizing that some of his personal possessions, including a legal book from the facility's library, had not been transferred to the segregation cell, Plaintiff became angry and began "yelling, kicking the door of his cell, and becoming generally disruptive." Id. Defendant Rowell instructed Plaintiff to cease these actions, but Plaintiff continued his behavior. Id. Defendant Rowell then informed his supervisor, Staff Sergeant (now Lieutenant) Mark Wilson, of the incident and received authorization to "use pepper spray to gain [Plaintiff's] compliance." (Doc. 103-1, p. 3). Defendants recorded the incident on video. (Doc. 103-5).
The video shows Defendants, along with a third corrections officer,
While being escorted to be decontaminated, Plaintiff began complaining about his transfer to segregation using foul language and threatening another lawsuit. (Doc. 103-5 at 1:45). He continued in an aggravated manner and spoke directly to the camera to report his grievance of being put in segregation. Id. at 2:17-2:24. During this time, he made no mention of any pain, discomfort, or other symptom from the pepper spray. Id. A few seconds later, Defendants began decontaminating Plaintiff by washing his head and face with potable water from a sink for approximately thirty seconds. Id. at 2:35-3:05. Plaintiff requested water to rinse his mouth, and Defendants allowed him to take multiple sips from the sink. Id. at 2:47-2:55. The video shows Defendants rinsed Plaintiff's face, with particular attention to the eye area. Id. After washing Plaintiff's head and face, Defendants continued the decontamination by gently wiping Plaintiff's face with a paper towel. Id. at 3:05. More than three minutes after first being sprayed, Plaintiff had yet to make any complaints about pain or discomfort. Id. Instead, after being decontaminated, he resumed his caustic remarks about being "locked up" in segregation. Id. at 3:10.
Once Plaintiff was seated in the restraint chair, he lodged two complaints about his discomfort. He leaned down to wipe his eyes on his pants leg and then asked to remove his shirt because it was "soaked from mace." (Doc. 103-5 at 4:14, 4:33). Over the next thirty or so seconds, he directly addressed the camera and made the following remarks: "Leave me like this eight hours. Maced up. Can't open my eyes." See id. at 4:44, 4:55, 5:15. Throughout this exchange, he yelled, used foul language, and threatened to sue the officers. Id. at 5:15-5:37. The video then shows Defendants placing Plaintiff in the restraints and captures Plaintiff's incoherent yells. Id. (continuing through the end of the video).
After placing Plaintiff in the restraint chair, Defendants ordered him to be on general observation with fifteen-minute checks. (Doc. 103-2, p. 5). These checks require an officer on duty to check on Plaintiff approximately every fifteen minutes to "document the inmate's condition." (Doc. 103-1, p. 4). Photographs from these checks indicate Plaintiff was allowed to remove his "soaked" shirt and pants after about fifteen or twenty minutes. (Doc. 103-7, pp. 2-5). The photographs and accompanying Close Observation Forms indicate Plaintiff had access to his meal, had his contaminated clothing removed, and had the restraints loosed over time as his demeanor became "calm [and] compliant[.]" (Docs. 103-6, 103-7, 103-1, p. 4).
Plaintiff initially filed this suit with a verified complaint on May 31, 2012. (Doc. 1). This Court dismissed Defendants Baldwin County and Sergeant Scott before service of process (Docs. 18, 19) and ordered the remaining defendants to file a Special Report and Answer (Doc. 20). Thereafter, the Court converted the Special Report to a motion for summary judgment (Doc. 69). This Court then entered summary judgment in favor of all Defendants on all counts after a de novo review of the Magistrate Judge's Report and Recommendation. (Doc. 76; see also Doc. 71).
Plaintiff appealed, and the Eleventh Circuit reversed the grant of summary judgment as to Plaintiff's excessive force claim against Defendants Officers Rowell and Keers and remanded to this Court for further proceedings. Jacoby v. Baldwin Cnty., 666 F. App'x 759, 766 (11th Cir. 2016); see also Doc. 85. Thereafter, this Court entered a Rule 16(b) Scheduling Order (Doc. 97), allowing both parties to submit dispositive motions (Docs. 97, 101).
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted "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 trial court's function is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "There mere existence of some evidence to support the nonmoving party is not sufficient for a denial of summary judgment; there must be `sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
The basic issue before the Court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. The moving party bears the burden of proving no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the Court must view all evidence in the light most favorable to the nonmoving party and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movants satisfies their initial burden under Rule 56(c), the nonmoving party "must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial." Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir. 1994) (citing Celotext Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The nonmoving party "may not rely merely on allegations or denials in its own pleadings; rather, its response must . . . set out specific facts showing a genuine issue for trial." Vega v. Invsco Group, Ltd., 432 F. A'ppx 867, 870 (11th Cir. 2011) (quoting FED. R. CIV. P. 56(e)(2)). "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonable find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton v. Bergrohr GMBH—Siegen, 965 F.2d 994, 998 (11th Cir. 1992). "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 issue for trial." Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation and citation omitted).
Before making arguments about the substantive law, Plaintiff raises objections about the successive nature of the summary judgment motion and the admissibility of certain evidence. The Court will address each in turn before moving on to its substantive analysis.
Plaintiff objects to Defendants' motion on the basis that it is a successive motion for summary judgment and must be rejected as a matter of law. (Doc. 108, pp. 3-4). In relying on Georgia-Pacific Consumer Products LP v. Zurich American Insurance Company, No. 15-342-WS-B, 2016 WL 5853728 (S.D. Ala. Oct. 15, 2016), however, Plaintiff misses the mark. Unlike in Georgia-Pacific, Defendants in this case did not elect to file a motion for summary judgment "over two months before the deadline for filing dispositive motions." See Georgia-Pacific Consumer Prods. LP, 2016 WL 5853728 at *3. Rather, Defendants filed a Special Report and Answer (Doc. 40), which this Court converted to a motion for summary judgment on February 4, 2014 (Doc. 69). As this Court has previously determined, a successive motion for summary judgment is permissible after an intervening order from the Eleventh Circuit:
Johnson-Mosely v. Ala. Unified Judicial Sys., No. 12-184-CG-N, 2014 WL 3725339, at *2 (S.D. Ala. July 25, 2014). As in the Johnson-Mosely case, this Court allowed Plaintiff and Defendants the opportunity to submit dispositive motions on or before March 31, 2017. (Doc. 101). Defendants filed their motion for summary judgment on that date, and Plaintiff elected not to file any motion. Moreover, in support of their motion for summary judgment, Defendants attached video and photographic evidence that was previously unavailable. (See Docs. 103-5, 103-7, 111-1). In light of this newly discovered evidence and the Court's amended scheduling order (Doc. 101) allowing for the submission of dispositive motions, the Court determines it is well within its own discretion to consider Defendants' motion for summary judgment and hereby overrules Plaintiff's objection.
Plaintiff also objects to "several" of Defendants' exhibits supporting their motion for summary judgment as "inadmissible" for failing to include an affidavit or declaration "explaining the source, authenticity, certainty, or reliability of the tendered documents." (Doc. 108, p. 5). For this reason, Plaintiff asks this Court to ignore Exhibits F, G, and H (Docs. 103-6, 103-7, 103-8). Plaintiff further requests this Court to ignore the majority of Lt. Wilson's declaration (Doc. 103-1) because it violates Federal Rules of Evidence 602 and 406. (Doc. 108, pp. 6-7).
While Plaintiff may object to these materials, the Court is not barred from considering them at the summary judgment stage so long as the proffering party (here, Defendants) can "show that the material is admissible as presented or [can] explain the admissible form that is anticipated." FED. R. CIV. P. 56, Av. Comm. Notes, "Subdisvision (c)" (2010 Amendments); see also McLeod v. Field Asset Servs., LLC, No. 15-654-KD-M, 2017 WL 338002 (S.D. Ala. Jan. 23, 2017) ("At this stage—on summary judgment—FAS is not required to furnish evidence in admissible form but only such evidence that can be reduced to admissible form at trial.") (emphasis in original).
As to Lt. Wilson's declaration, Plaintiff objects it does not comply with Federal Rule of Evidence 602 or 406. (Doc. 108, pp. 6-8). The Court, however, disagrees. Lt. Wilson bases his remarks on Plaintiff's reputation at BCSCC from his personal observations of both Plaintiff and others who work with Plaintiff (e.g. the correctional officers he supervised). The Court will not second-guess Lt. Wilson's memory or otherwise invalidate his personal observations. Further, Lt. Wilson's declaration testimony regarding the policy and procedures for decontaminating an inmate after utilizing pepper spray or similar is also proper evidence and will not be excluded. Lt. Wilson specifically states, "it is the policy of the BCSCC to decontaminate inmates . . . ." (Doc. 103-1, p. 3). He further stated, "With an inmate like Jacoby, it is very important that control and custody be maintained throughout the decontamination process. Officers will therefore rinse the affected areas with potable water at a large sink in a closet. It always takes a bit of time for the effects of the spray to clear, but this process is normally adequate." Id. Considering Lt. Wilson's long tenure at BCSCC, he clearly has personal knowledge of this policy. Moreover, Courts have traditionally accepted direct testimony regarding the existence of a policy. See Brown v. City of Clewiston, 848 F.2d 1534, 1540-41 (11th Cir. 1988); U.S. v. Joseph, 611 F. App'x 946, 948 (11th Cir. 2015) ("The established procedure need not be detailed. For example, we have upheld an inventory search where the district court had indicated that a police department's policy "`permitted impoundment under the circumstances' and `the defendant had not countered th[e] assertion.'") (internal citation omitted). The Court thus concludes Lt. Wilson's declaration is supported from his personal observations and thus overrules Plaintiff's objections to Exhibit A (Doc. 103-1).
Plaintiff alleges Defendants violated his Fourteenth Amendment right when they utilized excessive force against him by failing to decontaminate him after spraying him with pepper spray and by leaving him in a restraint chair for eight hours in contaminated clothing.
As the Eleventh Circuit explained in its opinion in this case,
Jacoby v. Baldwin Cnty., 666 F. App'x 759, 764 (11th Cir. 2016) (per curiam).
In Kingsley the Supreme Court provided guidance on applying the objective unreasonableness standard:
Kingsley, 135 S.Ct. at 2473 (internal citations edited).
In reaching its decision to reverse and remand this Court's prior grant of summary judgment in Defendants' favor, the Eleventh Circuit relied solely upon Plaintiff's verified complaint. The newly presented evidence, however, belies Plaintiff's version of events. Even taking the evidence in the light most favorable to Plaintiff, as this Court must, the undersigned cannot find Defendants' use of force meets the objective unreasonableness standard. The new evidence overcomes many of the Eleventh Circuit's concerns.
First, the video evidence shows Plaintiff on his knees with his head resting against the sheet after the second disbursement of the pepper spray. (Doc. 103-5 at 0:20-0:28). This video documents Defendants' actions within the cell: At no time does the video evidence show Defendants forcing Plaintiff's head onto the cement floor or otherwise rubbing Plaintiff's face into the pepper spray. Rather, the video shows Plaintiff's head was lying on the sheet he had held up as a protective barrier. Moreover, Plaintiff began addressing the officers and the camera at approximately 1:45 in the video. At that point in time, he had made no complaints about pain, burning, or other skin irritation. In fact, he used this time to lodge complaints about being placed in segregation: "I give these motherf*ckers a weapon and they throw me in God d*mn segregation. Take my sh*t. That's another lawsuit." (Doc. 103-5 at 1:45) (edited). He continued in the same vein for the next forty-five seconds. Defendants, however, did not react to Plaintiff's caustic remarks and remained calm and collected. See id. at 2:17-2:24. Approximately two and a half minutes into the video, Defendants began washing Plaintiff's face and head in a sink with potable water. Id. at 2:35-3:05. The video clearly show Defendants ran water over Plaintiff's face and head for approximately thirty seconds—not just "two or three seconds"—and provided Plaintiff with water to drink or to rinse out his mouth. Id.
After being dried off, Plaintiff renewed his protests about his transfer to segregation, but he did not complain about any pain or irritation. Id. at 3:10. It is not until a minute later—and approximately four minutes after first being sprayed—that Plaintiff indicated he might be in discomfort. After being seated in the restraint chair, Plaintiff leaned down to wipe his face on his pants' leg. Id. at 4:14. Before the restraints were put on him, he asked for his shirt to be removed because it was "soaked from mace." Id. at 4:44. When Defendants did not immediately comply with his request, Plaintiff remonstrated: "[L]eave me like this eight hours. Maced up. Can't open my eyes." Id. at 5:15. Shortly thereafter, Plaintiff began yelling incoherently, and at the end of the video, he was still shrieking at Defendants but was not complaining about any pain, discomfort, or irritation from the spray or the restraints. Id. at 5:37-5:57.
Second, the photographs submitted in Exhibit G clearly show Plaintiff's version of events to be untrue. Exhibit G consists of twenty-five photos taken during the fifteen minute observation checks. See Doc. 103-7. In all but the first photo, Plaintiff's shirt is removed, and both of his eyes are open. See id. In two of the photos, Plaintiff's contaminated pants have been removed. Id. at 3-4. The photos further indicate Plaintiff's restraints were loosened over the course of the afternoon and evening and show Plaintiff ate dinner. Id. at 11-23. Third, the Close Observation Forms submitted in Exhibit F indicate Plaintiff continued talking throughout the day, while occasionally laughing or yelling. (Doc. 103-6, p. 4).
Applying the Kingsley factors to the evidence, this Court cannot find Defendants acted in an objectively unreasonable manner in light of the "facts of circumstances" of this case. See Kingsley, 135 S.Ct. at 2473. At the time of the incident, Plaintiff had been yelling and kicking his door for a few minutes and had refused to cease, even upon receiving orders. In looking at "what the officer[s] knew at the time," which included Plaintiff's history of behavioral issues and the BCSCC's "`zero tolerance' policy," the Court cannot find Defendants acted with objective unreasonableness. See Doc. 103-2, pp. 2-3; see also Doc. 103-1, pp. 2-3. This Court recognizes the "`substantial discretion [correctional officials must have] to devise reasonable solutions to the problems they face.'" Kingsley, 135 S.Ct. at 2474 (quoting Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. ___, ____, 132 S.Ct. 1510, 1515 (2012)). The video and photographic evidence clearly establish Plaintiff received an objectively reasonable decontamination treatment. He did not make any complaints about discomfort prior to the washing of his face and head, and Defendants followed the established protocol to decontaminate Plaintiff. See Doc. 103-5; Doc. 103-1, p. 3. The evidence further shows Plaintiff was allowed to remove his shirt and to change his pants. Plaintiff's version of events—that he was left abandoned in the chair in clothing "soaked" in pepper spray and his own urine—holds no water. See Burke v. Bowns, 653 F. App'x 683, 695-96 (11th Cir. 2016) ("We do not credit assertions in Plainitff's sworn declaration to the contrary.") (citing Scott v. Harris, 550 U.S. 372, 380-81 (2007) ("Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.").
As such, the Court cannot find Plaintiff sat in contaminated clothing for eight hours or that he suffered any cognizable injury.
Even if this Court found Defendants' use of force to be objectively unreasonable, Defendants would still be entitled to qualified immunity because the right was not clearly established at the time of the incident. As the Eleventh Circuit noted,
Jacoby, 666 F. App'x at 765. The Eleventh Circuit then relied on its decision in Danley v. Allen, 540 F.3d 1298 (11th Cir. 2008), which held the officers' use of force to be excessive in violation of the Fourteenth Amendment. Id. In Danley, the Eleventh Circuit noted, "[w]hen jailers continue to use substantial force against a prisoner who has clearly stopped resisting— whether because he has decided to become complaint, he has been subdued, or his is otherwise incapacitated—that use of force is excessive." Danley, 540 F.3d at 1309. In reaching its decision, the Eleventh Circuit reasoned,
Jacoby, 666 F. App'x at 766 (footnote omitted). As demonstrated above, however, the factual reasons compelling the Eleventh Circuit's decision no longer stand.
Thus, the evidence cannot support an inference finding this conduct constitutes "sadistic or malicious" treatment of Plaintiff or that Defendants continued to use force after the necessity for the force ceased. Further, the evidence shows Plaintiff continued to act defiantly by yelling, cursing, threatening to sue, and otherwise complaining about his transfer to segregation. As such, the use of the restraint chair was merited and was not excessive force under Danley or Shuford. See Danley, 540 F.3d at 1308-09; Shuford, 666 F. App'x at 817-18. Thus, the Court finds the use of force was appropriate to the situation and thus did not violate a clearly established right.
For the reasons stated above, this Court finds Defendants Rowell and Keer are entitled to qualified immunity and thus deems it proper to
