Brent Jacoby v. Joshua Keers, John Rowell

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 22, 2019
• Docket: 17-13400
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13400 Non-Argument Calendar ________________________

D.C. Docket No. 1:12-cv-00366-CG-C

BRENT JACOBY,

Plaintiff-Appellant,

versus

JOSHUA KEERS, JOHN ROWELL,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(July 22, 2019) Case: 17-13400 Date Filed: 07/22/2019 Page: 2 of 9

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:

Brent Jacoby brought a claim under 42 U.S.C. § 1983 against Joshua Keers

and John Rowell, employees of the Baldwin County Sheriff’s Corrections Center,

alleging that they used excessive force against him while he was a pretrial

detainee. The district court granted the defendants’ motion for summary judgment.

Jacoby appeals, contending that the district court erred in granting the motion and

abused its discretion in considering certain evidence.

I.

In May 2012 Jacoby filed his initial complaint pro se against Baldwin

County, Sheriff Huey Mack, Major Dale Byrne, Corporal Kent Carr, Officer

Joshua Kearse, Officer Mark Boyington, Officer John Rowell, and Sergeant

Edward Scott. He alleged that various employees of the jail retaliated against him

for filing grievances and used excessive force against him by deliberately smearing

his face in mace on the floor of his cell, only washing the mace off for two to three

seconds, and leaving him in a restraint chair for eight-and-a-half to nine hours in

clothing drenched in urine and coated in mace. In December 2012 the district

court adopted the magistrate judge’s report recommending the dismissal of

Baldwin County and Sergeant Scott. The following month it ordered the

remaining defendants to file a special report and answer. The district court

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converted the special report to a motion for summary judgment and, in May 2014,

entered summary judgment for all defendants on all counts.

In November 2016 we reversed the grant of summary judgment on Jacoby’s

excessive force claim against Rowell and Keers and remanded for further

proceedings. Jacoby v. Baldwin Cty., 666 F. App'x 759, 766 (11th Cir. 2016). We

noted that the only evidence in the record at that time regarding the disciplinary

incident in which Jacoby contended that Rowell and Keers used excessive force

against him came from his verified complaint. Id. at 764. We held that construing

the evidence in the light most favorable to Jacoby, the record indicated “that after

he was pepper sprayed, his face was rubbed in pepper spray on the floor, washed

with water for two to three seconds and then he was left alone in the restraint chair

for more than eight hours while still in his pepper-sprayed clothes. During that

time he urinated on himself and cried for help because he burned from his pepper-

sprayed and urine-soaked clothing.” Id. Accordingly we held that there was a

genuine issue of material fact as to whether Rowell and Keers used excessive force

against Jacoby in violation of his Fourteenth Amendment rights and remanded the

matter back to the district court.

The defendants submitted additional evidence — including a video of the

incident and pictures of Jacoby taken in 15-minute intervals while in the restraint

chair afterwards — and filed another motion for summary judgment after the

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district court entered a Rule 16(b) scheduling order allowing both parties to submit

dispositive motions.

The video shows the defendants removing Jacoby from his cell to

administrative segregation pending a disciplinary hearing. In the video the

defendants stood outside the door to Jacoby’s cell pointing towards the ground.

Rather then getting down on the floor, Jacoby wrapped his head in fabric and held

a sheet in front of his body. The defendants then entered the cell, told Jacoby to

get on the floor multiple times, and deployed one burst of pepper spray when he

did not comply. After Jacoby continued to fail to comply with orders to get on the

floor, the defendants deployed pepper spray a second time. Jacoby then got on his

knees and leaned his head against the sheet on the ground. At this point there is an

interval of approximately two seconds where the camera’s view was obscured by

an officer standing in front of the camera. Officers then handcuffed Jacoby and led

him out of the cell.

The video later depicted officers decontaminating Jacoby by placing his

head in a sink and washing his face for approximately 30 seconds. Jacoby asked to

rinse his mouth out and officers allowed him to take multiple sips from the sink.

Officers then dried his face with paper towels. The video then showed the officers

placing Jacoby in a restraint chair. After he was placed in the chair, Jacoby leaned

down and wiped his eyes on his pants leg and asked to remove his shirt because it

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was “soaked from mace.” Jacoby then addressed the camera and said: “Leave me

like this eight hours. Maced up. Can’t open my eyes.”

In addition to the video, the defendants also submitted photographs of

Jacoby in the restraint chair while he was on general observation with 15-minute

checks. The photographs show that he was allowed to remove his shirt and pants

while in the restraint chair. In July 2017 the district court granted the defendants’

motion for summary judgment.

II.

Jacoby first contends that the district court erred in considering three

exhibits that were attached to the defendants’ motion for summary judgment,

including the photographs of Jacoby in the restraint chair, because they were not

authenticated.

“We review a district court’s evidentiary rulings at the summary judgment

stage only for abuse of discretion.” Wright v. Farouk Sys., Inc., 701 F.3d 907, 910

(11th Cir. 2012).

At the summary judgment stage “[a] party may object that the material cited

to support or dispute a fact cannot be presented in a form that would be admissible

in evidence.” Fed. R. Civ. P. 56(c)(2). A court may consider such materials so

long as the proffering party can “show that the material is admissible as presented

or . . . explain the admissible form that is anticipated.” Id. advisory committee’s

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note to 2010 amendment. A record of an organization’s regularly conducted

activity or a record made at or near the time of an event by someone with

knowledge of the event is self-authenticating. Fed. R. Evid. 902(11), 803(6).

The district court did not abuse its discretion in holding that the defendants’

exhibits can be considered at the summary judgment stage. When a Rule 56(c)(2)

objection is made, it is within the district court’s discretion to determine if the

material used to support a fact can be presented in a form that would be admissible

at trial. The defendants explained in their reply brief in support of their motion for

summary judgment that they anticipate that the exhibits would be admissible at

trial as business records. It was within the district court’s discretion whether to

accept that explanation, and it did not abuse that discretion in doing so.

III.

Jacoby next contends that the district court erred in holding that the

defendants were entitled to qualified immunity and granting their motion for

summary judgment on that basis.

We review de novo a grant of summary judgment. Krutzig v. Pulte Home

Corp., 602 F.3d 1231, 1234 (11th Cir. 2010). 1 Summary judgment should be

granted only when the moving party demonstrates that that “there is no genuine

1 Jacoby contends that the district court “misapprehended and misapplied the summary judgment standard.” But because our review of the district court’s grant of summary judgment is de novo we need not determine whether the court applied the correct standard. 6 Case: 17-13400 Date Filed: 07/22/2019 Page: 7 of 9

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). To determine if the moving party has shown that there

is no genuine issue as to any material fact we must ask “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is

so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251–52 (1986). When determining whether the moving

party has met this burden, the Court must view the evidence and all factual

inferences in the light most favorable to the non-moving party. See Rojas v.

Florida, 285 F.3d 1339, 1341–42 (11th Cir. 2002).

To obtain qualified immunity the defendants first must show that they were

acting within their discretionary authority. Mobley v. Palm Beach Cty. Sheriff

Dep’t, 783 F.3d 1347, 1352 (11th Cir. 2015). Once an official has done so, “the

plaintiff must demonstrate (1) that the facts show that the official violated the

plaintiff's constitutional rights and (2) that the law clearly established those rights

at the time of the alleged misconduct.” Mobley v. Palm Beach Cty. Sheriff Dep’t,

783 F.3d 1347, 1353 (11th Cir. 2015) (quotation marks omitted). To show that

excessive force was used against him in violation of the Fourteenth amendment “a

pretrial detainee must show only that the force purposely or knowingly used

against him was objectively unreasonable.” Kingsley v. Hendrickson, 135 S. Ct.

2466, 2473, 192 L. Ed. 2d 416 (2015).

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Here there is no dispute that the defendants acted within their discretionary

authority. Jacoby alleges that there is a genuine issue of material fact as to whether

the defendants used excessive force against him in violation of his Fourteenth

Amendment rights. His verified complaint alleges that the defendants rubbed his

face in mace on the floor, washed his face for only two to three seconds, and left

him burning in mace and urine contaminated clothing in the restraint chair for

eight-and-a-half to nine hours. All of these allegations are directly contradicted by

the video of the incident and photographs taken of Jacoby at 15-minute intervals

while in the restraint chair. That evidence clearly shows that the defendants

washed Jacoby’s face thoroughly before placing him in the restraint chair and that

he was allowed to remove his contaminated clothing. The video does not show

Jacoby’s face being rubbed into mace on the floor of his cell.

Jacoby contends that a genuine issue of material fact remains as to whether

his face was rubbed into mace on the floor because there is an approximately two-

second period in the video where the view is obstructed by an officer walking in

front of the camera. But the video does not depict any visible signs of mace on the

floor where Jacoby is positioned at this point in the video. It also does not depict

the defendants rubbing Jacoby’s face into the floor or touching his head. No

reasonable jury could find that the defendants had time to grab Jacoby’s head, rub

it in mace on the floor, and then return their hands and bodies back to their original

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positions during the two seconds in which the footage was obstructed. See Scott v.

Harris, 550 U.S. 372, 380 (2007) (holding that when a plaintiff’s version of events

at the summary judgment stage is contradicted by a “videotape [that] tells quite a

different story,” then the “court should not adopt that version of the facts” that “is

blatantly contradicted by the record, so that no reasonable jury could believe it”).

Given the direct evidence in the record contradicting Jacoby’s claim that

excessive force was used against him, no reasonable jury could find that Keers and

Rowell violated Jacoby’s clearly established Fourteenth Amendment rights, so

they are entitled to qualified immunity as a matter of law. See Anderson, 477 U.S.

at 251–52.

AFFIRMED.