KRISTI K. DuBOSE, Chief 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).
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).
Pursuant to the mandate rule,
(Doc. 91, p. 2-7).
"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 issue, `the facts in dispute must raise a genuine issue of fact material to the determination of the underlying issue.'" Id. (citation omitted).
"[Q]ualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (internal quotation marks and citation omitted). "The purpose of qualified immunity is to allow officials to carry out discretionary duties without the chilling fear of personal liability or harrassive litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating federal law." McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (internal quotation marks and citation omitted).
"In order to receive qualified immunity" Defendants "must first establish that [they were] acting within the scope of [their] discretionary authority when the alleged wrongful acts occurred." Id. If Defendants make this showing, the burden shifts to Plaintiff to show that they are not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2004) (Once that showing is made, the burden shifts to plaintiff to establish that qualified immunity does not apply). To do so, Plaintiff must "show[ ] (1) that [Defendants] violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Wood v. Moss, ___ U.S. ____, 134 S.Ct. 2056, 2066-67 (2014) (internal quotation marks and citation omitted).
In his verified complaint,
In response to the motion for summary judgment, Plaintiff argues that Lovett "ordered" McCants and Winky to spray him "with pepper spray and to strap him to a chair for 8 hours without properly decontaminating him for retaliatory reasons with every intention of hurting him due to him being a jailhouse lawyer and filing grievances and lawsuits" (doc. 39, p. 1). He states that "[d]uring his 2 year stay he was known as a jailhouse lawyer and filed numerous grievances and lawsuits on his and other inmates behalf and because of this [he] was constantly harassed and retaliated against" (Id. p. 4). Plaintiff asserts that he did nothing wrong to justify the pepper spray incident and as evidence, points out that he was not given a disciplinary or a rule violation (Id., p. 5). He alleges that the "attack ... was premeditated and strictly done for retaliatory reasons with all intentions of causing him harm" and that Defendants "had it in [their] minds to spray [Plaintiff] per the orders of Lovett" (Id., p. 6). Overall, Plaintiff argues that he "clearly connected the dots from Point-A to Point-Z and showed this court the constant harassing, searches, disciplinaries and assaults [Lovett] has been part of in regards to her (Sgt Lovett) retaliating against" him (sic) (Id., p. 21).
Winky and McCants argue that they were acting within the scope of their discretionary authority at all relevant times. Plaintiff does not dispute their position (doc. 91, p. 12, n.11). McCullough v. Antolini, 559 F.3d at 1205. The first element having been met, the burden shifts to Plaintiff to show that Winky and McCants are not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d at 1358. To do so, Plaintiff must show that Winky and McCants (1) "violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Wood v. Moss, 134 S. Ct. at 2066-67 (internal quotation marks and citation omitted).
Filing inmate grievances and lawsuits is a clearly established right of free speech that is constitutionally protected under the First Amendment. Hollins v. Samuals, 540 Fed. Appx. 937, 938-39 (11th Cir. 2013) ("We've routinely held that a prisoner's complaints about prison conditions, via administrative grievances, lawsuits, and the like are protected under the First Amendment."); Jacoby v. Mack, 2018 WL 5876984, at *10-11 ("The First Amendment prohibits prison officials from retaliating against prisoners for exercising their right of free speech by filing lawsuits or grievances.").
"When officers punish an inmate for filing grievances concerning the conditions of his confinement, they violate the inmate's First Amendment rights to free speech and to petition the government for redress of grievances." Maldonado v. Unnamed Defendant, 648 Fed. Appx. 939, 955 (11th Cir. 2016). Thus, the Plaintiff may
Jacoby v. Mack, 2018 WL 5876984, at *11 (quoting O'Bryant, 637 F. 3d at 1212) (doc. 91, p. 28); see also Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (adopting the objective "ordinary firmness" test). "The causal connection inquiry asks whether the defendants were subjectively motivated to discipline because [Plaintiff] complained of some of the conditions of his confinement." Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008).
To resolve the question of subjective motivation, courts have applied the Mt. Healthy burden-shifting analysis. Id., (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977)). "`[O]nce the plaintiff establishes that the protected conduct was a motivating factor behind the harm, the burden of production shifts to the defendant. The defendant can prevail on summary judgment if it can show it would have taken the same action in the absence of the protected activity.'" Jacoby v. Mack, 2018 WL 5876984, at *11 (quoting Smith v. Fla. Dep't of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013)) (doc. 91, p. 28).
Plaintiff has met the first element. He established that filing grievances and lawsuits is constitutionally protected speech. Jacoby v. Mack, 2018 WL 5876984, at *11 With respect to the second element and for purposes of this summary judgment analysis,
With respect to the third element, a "causal relationship between" the pepper spraying incident and the "protected activity", the "inquiry asks whether the defendants were subjectively motivated to discipline because [Plaintiff] complained of some of the conditions of his confinement." Smith v. Mosley, 532 F.3d at 1278. McCants and Winky argue that Plaintiff has not presented any evidence of a subjective retaliatory motive on their part, and that his conclusory allegations based on his assumptions as to their motivation are not enough to establish a causal relationship and thus, a constitutional violation (doc. 68, p. 16).
The Court agrees. Plaintiff has failed to provide any evidence that his history of filing grievances and lawsuits was a motivating factor with respect to Winky's and McCants's involvement in the pepper spraying incident. He fails to identify any specific lawsuit or grievance that may have led them to retaliate against him,
Without evidence to support his conclusory assumption that Winky and McCants were motivated to retaliate against him, Plaintiff has failed to meet his burden to establish a violation of his First Amendment rights. Jacoby v. Baldwin Cty., 666 Fed. Appx. 759, 762 (11th Cir. 2016) ("This court has consistently held that conclusory allegations [in an affidavit] without specific supporting facts have no probative value."); Webb v. Boyd, 2017 WL 603005, at *6 ("Merely alleging the ultimate fact of retaliation, however, is insufficient. [ ] Additionally, conclusory allegations are insufficient to demonstrate the existence of each element requisite to establishing retaliation.") (internal citations omitted). Therefore, Winky and McCants are entitled to qualified immunity and summary judgment is granted in their favor as to this claim.
The Eleventh Circuit summarized Plaintiff's claims against Lovett, as follows:
(Doc. 91, p. 29).
On motion for summary judgment, Defendant Lovett argues she is entitled to qualified immunity because she was acting within her discretionary authority and Plaintiff cannot show any violation of his clearly established constitutional rights (doc. 32, p. 16-19). Plaintiff does not dispute that Lovett was acting within her discretionary authority (doc. 91, p. 12, n.11). McCullough v. Antolini, 559 F.3d at 1205. The first element having been met, the burden shifts to Plaintiff to show that Lovett is not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d at 1358. To do so, Plaintiff must show that Lovett (1) "violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Wood v. Moss, 134 S. Ct. at 2066-67 (internal quotation marks and citation omitted).
Filing inmate grievances and lawsuits is a clearly established right of free speech that is constitutionally protected under the First Amendment. Hollins v. Samuals, 540 Fed. Appx. at 938-39) ("We've routinely held that a prisoner's complaints about prison conditions, via administrative grievances, lawsuits, and the like are protected under the First Amendment."); Jacoby v. Mack, 2018 WL 5876984, at *10-11 ("The First Amendment prohibits prison officials from retaliating against prisoners for exercising their right of free speech by filing lawsuits or grievances.").
The Eleventh Circuit found that the parties "are in agreement as to the first two elements" of Plaintiff's First Amendment retaliation claims against Lovett—that he engaged in constitutionally protected speech and the alleged retaliatory conduct by Lovett would deter a person of ordinary firmness from engaging in the protected speech (doc. 91, p. 28-29). However, the parties disagreed "as to whether [Plaintiff] has established a causal relationship between Lovett's complained of conduct and [his] filing of grievances and lawsuits." (Id.) "With these guiding principles in mind", the Eleventh Circuit considered the arguments underlying Plaintiff's retaliation claims against Lovett. (Id., p. 29). Therefore, this Court begins its analysis by addressing whether Plaintiff has alleged sufficient facts, taken as true and viewed in the light most favorable to him, establish a causal relationship between Lovett's placement of Plaintiff in Segregation and his filing of grievances and lawsuits.
In response to the motion for summary judgment, Plaintiff alleges that he is "known as a jailhouse lawyer and [has] filed numerous grievances and lawsuits on his own and other inmates behalf" (doc. 39, p. 4). Because of these activities, he was "constantly harassed and retaliated against with ... bogus disciplinary charges in order to keep him confined in lockup" and "hamper his ability to pursue his non frivolous legal actions" (Id., p. 4-5). He asserts that on January 6, 2013, Lovett had him "locked up for a bogus smoking and contraband charges despite the fact no contraband was found in his possession and another inmate admitted ownership" (Id., p. 5). Plaintiff argues that because his three cellmates, who also had access to the contraband, were not locked up "this has clear harassment and retaliation wrote all[] over it." (Id., p. 1, 5). Plaintiff supports his "retaliatory treatment" claims by alleging that "Lovett threw Jacoby in segregation and not his cellmates for tobacco despite the fact she knew it wasn't his." (Id., p. 14). He argues that he "clearly connected the dots from Point-A to Point-Z and showed this court the constant harassing, searches, disciplinaries and assaults [Lovett] has been part of in regards to her (Sgt Lovett) retaliating against" Plaintiff (Id., p. 21). At the disciplinary hearing, held three days later, on January 9, 2013, Plaintiff was found not guilty and returned to Population (doc. 1, p. 7).
Lovett argues that Plaintiff did not identify any particular grievance or lawsuit that would have led her to take retaliatory action (doc. 32, p. 33). Lovett argues that Plaintiff relies on "vague allegations that he was subjected to searches and disciplinary proceedings because [she] was `upset over Jacoby writing Grievances and Lawsuits on her and Filing for Restraining Orders." (Id., quoting Doc. 1, p. 6). Lovett points out that she had never been named a defendant in any of Plaintiff's lawsuits before this action. (Id.)
Plaintiff's conclusory assumption that Lovett acted with a retaliatory motive because she treated other inmates differently is not sufficient to establish retaliation. Plaintiff fails to identify any specific lawsuit or grievance that may have motivated Lovett, but rather he relies on his activities as a jailhouse lawyer. Also, at that time, Plaintiff had not filed a lawsuit against Lovett. "Without any evidence that his filing grievances was a motivating factor behind [placement in segregation], a reasonable jury could not return a verdict in his favor on this retaliation claim." Jacoby v. Mack, 666 Fed. Appx. at 762. Again, Plaintiff cannot "insulate" himself from "disciplinary actions by drawing the shield of retaliation around them[.]" Woods v. Smith, 60 F.3d at 1166. And as previously stated, when this shield is drawn, the federal courts must "carefully scrutinize retaliation claims . . . because virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized [by the prisoner] as a constitutionally proscribed retaliatory act." Mosley v. Borders, 2016 WL 2765071, at *8 (bracketed text in original).
However, assuming for purposes of summary judgment,
Lovett asserts that "Plaintiff has not been retaliated against because he filed previous lawsuits" but instead "[a]ll actions taken vis-à-vis Plaintiff have been based on Defendants' best judgment as to how to preserve the safety and security of the facility and all visitors, staff, and inmates" and to "is a protective measure designed to guard against potential fights and/or disputes over fault" (doc 32, p. 5-6). Lovett asserts that she "ordered that all inmates who could be implicated in this incident, including Plaintiff and his cellmate, to be taken to administrative segregation while the investigation was completed" and that this "order was in accordance with the general policy that any inmate who might be implicated in an offense be placed in administrative segregation for the safety and security of the facility during an ongoing investigation" (Id., p. 7-8). Lovett also asserts that she and Cpl. Spencer
(Id., p. 8).
The undisputed facts show that an "objective prison administrator" faced with the same circumstance would have taken the same action to maintain order, safety, and security at the jail and in view of his history, to place Plaintiff in a more controlled environment. Jacoby v. Mack, 666 Fed. Appx. at 763 (finding that Jacoby's "history of refusing to cooperate with officers" and "hiding contraband ... were legitimate, non-retaliatory reasons behind [Defendant's] decision to transfer him."); see also Webb v. Boyd, 2017 WL 603005, at *7 (applying the Mt Healthy analysis and finding that "objective prison administrators standing in [the defendants'] shoes" would have made the same decision) (bracketed text in original).
Since Plaintiff has failed to establish evidence of a causal relationship, he cannot establish that Lovett violated his First Amendment rights by placing him in Segregation. Therefore, Lovett is entitled to qualified immunity as to this claim. Accordingly, summary judgment is granted in Lovett's favor with respect to this claim of retaliation.
