           Case: 13-12444   Date Filed: 12/31/2014   Page: 1 of 21


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 13-12444
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 1:12-cv-00197-WS-M



BRENT JACOBY,

                                                      Plaintiff - Appellant,


                                  versus

BALDWIN COUNTY,
SHERIFF MACK,
MAJOR BYRNE,
DR. SHERMAN,
NURSE WASDIN, et al.,

                                                      Defendants - Appellees,

                        ________________________

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

                            (December 31, 2014)
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Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

       Brent Jacoby, an Alabama pretrial detainee proceeding pro se, appeals the

district court’s order granting summary judgment 1 on his claims under 42 U.S.C. §

1983 in favor of Baldwin County, Baldwin County Sheriff Huey Mack, Corporals

William Crull, Kent Carr, and Wallace McCall, and two members of the Baldwin

County Corrections Center (“BCCC”) health staff, Dr. Charles Sherman and

Registered Nurse Carol Wasdin. 2 After careful review, and for the reasons set

forth below, we affirm.

                                                 I.

       In late October 2011, Mr. Jacoby arrived at BCCC to await trial. 3 During

the intake process, Mr. Jacoby informed Nurse Wasdin, BCCC’s Director of

Nursing, that he suffered from seizures and mental illness that required medication

for treatment. He also indicated that he had suffered previously from suicidal

1
  The district court denied Mr. Jacoby’s cross motion for summary judgment.
2
  The final named defendant, BCCC Commander Arthur Byrne, apparently died after Mr. Jacoby
filed his notice of appeal. See Suggestion of Death, Jacoby v. Baldwin Cnty. et al., No. 1:12-CV-
197 (S.D. Ala. Dec. 10, 2013) (ECF No. 93). Although Federal Rule of Appellate Procedure
43(a)(1) permits a party’s substitution in the event of death, the substitution must be requested in
a motion to this Court. Mr. Jacoby filed a motion for substitution in the district court, which the
district court denied, directing Mr. Jacoby to file his motion in this Court. Mr. Jacoby has not
done so. We therefore conclude that neither Commander Byrne nor any of his representatives
remains a party to this appeal. See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)
(requiring pro se litigants to conform to the Court’s procedural rules).
3
  The facts that follow, unless otherwise indicated, are not in dispute. See McCullough v.
Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009) (requiring courts to rely on all undisputed facts
and otherwise take facts in the light most favorable to the nonmovant at the summary judgment
phase).
                                                 2
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thoughts and tendencies and stated that he had attempted suicide once in 2001 and

again in 2005. BCCC medical staff attempted to locate Mr. Jacoby’s most current

medical and pharmaceutical records. Although they successfully located some of

Mr. Jacoby’s medical records, they were unable to locate records of the

prescriptions Mr. Jacoby said he had at the pharmacies he disclosed to them.

       In the final days of October, Mr. Jacoby completed several health services

request forms, on which he indicated that he needed to see a mental health

professional for counseling and medication for bipolar disorder. BCCC medical

staff scheduled a November 1, 2011 appointment for Mr. Jacoby to see Dr.

Sherman, an internist who was BCCC’s Medical Director. At that appointment,

Mr. Jacoby told Dr. Sherman about his seizures, and Dr. Sherman prescribed him a

drug called Dilantin. 4 Mr. Jacoby also talked about his history of mental illness

but, because he did not present with any symptoms, Dr. Sherman did not prescribe

psychiatric medication.

       On November 9, 2011, Mr. Jacoby completed a health services request form

asking that his anti-seizure medication be changed. In response to this request, and

after receiving Mr. Jacoby’s medical records from the New York Department of




4
  Although Mr. Jacoby initially claimed Dr. Sherman’s treatment of his seizures was deliberately
indifferent, he does not assert this claim on appeal.
                                               3
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Corrections, Dr. Sherman changed Mr. Jacoby’s medication to a drug called

Tegretol, which is used to treat both seizures and depression.5

       A few weeks later, on December 11, 2011, Mr. Jacoby completed another

mental health services request form indicating that he needed treatment for “mental

problems.” He stated, “I don’t feel good and every day I am in here I feel like I am

deteriorating and losing my mind . . . . I need to see a psychiatrist . . . before I lose

it please.” BCCC medical staff did not receive this notice until two days later, on

December 13, 2011. On December 12, Mr. Jacoby cut his throat with a razor blade

and swallowed the blade, which he had snapped in half and wrapped in a paper

towel. BCCC staff transported Mr. Jacoby to a nearby hospital where he received

treatment for his wounds, a CAT scan revealing the ingested blades, and

prescriptions for Lithium (a mood stabilizer), Remeron (an antidepressant), and

Tegretol (the anti-seizure and antidepressant medication Dr. Sherman had

prescribed). When Mr. Jacoby returned from the hospital that day, Corporal Carr,

a BCCC classification officer charged with determining (with Nurse Wasdin’s

medical advice) which category of housing was appropriate for each inmate,

placed Mr. Jacoby on suicide watch.

       On suicide watch, each inmate was observed physically every 15 minutes,6

clothed in a simple gown, given a sleeping mat, and prohibited from possessing

5
 Mr. Jacoby asserts that Dr. Sherman said he could prescribe medication for mental illness only
by court order. Dr. Sherman’s prescription of Tegretol contradicts this assertion, however.
                                               4
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personal property, bedding, or any clothing. BCCC Commander Byrne, not a party

to this appeal, testified that inmates on suicide watch were housed on F block.

Other inmates housed on F block included those in protective custody,

administrative segregation, disciplinary segregation, and general watch. None

were issued razors. Commander Byrne was aware that inmates in the adjacent cell

block would sometimes slide contraband beneath the door of F block, but he

testified that officers observed the area to prevent this from occurring. Aside from

the 15 minute checks, suicide watch cells were video recorded, and the feed was

transmitted to officers stationed in BCCC’s control pod.

       Dr. Sherman saw Mr. Jacoby the day after the December 12 incident. Mr.

Jacoby would not speak to Dr. Sherman at this meeting, but Dr. Sherman listed on

his medical forms a diagnosis of “personality disorder,” seizures, and “possible

depression bipolar.” Dr. Sherman ordered that Mr. Jacoby continue the three

medications the hospital had prescribed. Dr. Sherman also ordered that Mr.

Jacoby’s therapeutic blood levels be checked in a week to evaluate the

medications’ efficacy.

       Mr. Jacoby soon began complaining about being on suicide watch. Often in

protest of his suicide watch status, but also when demanding to see a mental health


6
 BCCC staff evaluated each inmate on suicide watch every week. If the inmate’s risk of suicide
was determined to have decreased, staff thereafter would observe the inmate only every 30
minutes.
                                              5
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professional, Mr. Jacoby refused to take his medication on occasion, declined

several medical appointments, and threatened to refuse all medical care. On

December 20, 2011, while still on suicide watch, Mr. Jacoby completed a health

services request form stating that he was losing his mind, “getting angry[,] and

feel[ing] like [he was] about to get violent and go off.” He complained that he was

“sick of being on suicide watch” and “want[ed] to be cleared.” Based on his

threats of violence, Corporal Carr determined on December 21 that Mr. Jacoby

should remain on suicide watch.

      The following day, Mr. Jacoby obtained a razor blade from another inmate,

cut his throat and wrist, and again swallowed the blade. The officers who

responded, which, according to Mr. Jacoby, included Corporal Crull, sprayed Mr.

Jacoby with pepper spray and removed him from his cell. Mr. Jacoby averred that

the BCCC staff failed to decontaminate him for eight hours. Corporal Crull

testified that he arrived at Mr. Jacoby’s cell that day only after Mr. Jacoby had

been transported to the medical unit. He also testified that, each time he personally

witnessed the use of pepper spray against Mr. Jacoby, Mr. Jacoby promptly was

decontaminated. Nurse Wasdin testified that she was present in the medical unit

when Mr. Jacoby arrived that day and that he was decontaminated immediately and

taken to the local hospital.




                                          6
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       BCCC medical staff again transported Mr. Jacoby to the hospital, where he

was treated. When he returned to BCCC, Nurse Wasdin placed him back on

suicide watch, this time also requiring that his cell be searched each shift and that

he be allowed out of his cell only while under supervision. Mr. Jacoby remained

on suicide watch until January 10, 2012. On February 7, Dr. Sherman saw him

after Mr. Jacoby completed a health services request form complaining that he had

gained weight. Dr. Sherman believed the weight gain to be attributable not to the

Tegretol, as Mr. Jacoby insisted, but to the Remeron, but Dr. Sherman nonetheless

discontinued the Tegretol, substituted a different anti-seizure medication, Dilantin,

and also decreased Mr. Jacoby’s intake of Remeron. Mr. Jacoby immediately

expressed his dissatisfaction with these medication changes, yelling at staff,

threatening self harm, and refusing to take his medication. Based on these threats

and his history at BCCC, Nurse Wasdin and Corporal Carr transferred Mr. Jacoby

once again to a suicide watch cell. 7 Mr. Jacoby complained continually about his

suicide-watch classification, asking to be returned to the general population

because he was complying by taking his medication. While on suicide watch in

February, Mr. Jacoby obtained two metal pieces from other inmates and turned

them over to staff.


7
 Dr. Sherman met with Mr. Jacoby again on February 21, while Mr. Jacoby was still on suicide
watch. At that meeting, Dr. Sherman switched Mr. Jacoby’s anti-seizure medication to
Neurontin at Mr. Jacoby’s request.
                                              7
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       Mr. Jacoby filed the instant suit in March 2012.8 He filed an amended

complaint on July 11, 2012, after which the defendants filed answers and Special

Reports, submitted testimony and documents, and requested the court to consider

the filings as motions for summary judgment. Mr. Jacoby then filed a motion for

summary judgment and responses in opposition to the defendants’ motions for

summary judgment. On May 7, 2013, a magistrate judge recommended that the

district court treat the defendants’ Special Reports as motions for summary

judgment, grant those motions, and deny Mr. Jacoby’s cross motion. Over Mr.

Jacoby’s objections to some of those recommendations, the district court adopted

the magistrate judge’s recommendation, granted the defendants’ motions for

summary judgment, and denied Mr. Jacoby’s motion. Mr. Jacoby now appeals.

                                                II.

       We review de novo summary judgment rulings, drawing all inferences and

reviewing all evidence in the light most favorable to the non-moving party. Moton

v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). Summary judgment is

appropriate “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.” Fed. R. Civ. P.

56(a). “The moving party may meet its burden to show that there are no genuine

8
  He continued to harm himself and, after two incidents in August 2012, Nurse Wasdin
petitioned a probate court to have Mr. Jacoby involuntarily committed. The court declined,
attributing Mr. Jacoby’s self harm and aggression to a “personality disorder rather than a serious
mental illness.”
                                                8
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issues of material fact by demonstrating that there is a lack of evidence to support

the essential elements that the non-moving party must prove at trial.” Moton, 631

F.3d at 1341 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

                                               III.

       As a preliminary matter, Mr. Jacoby contends the district court erred in

ruling on the parties’ motions for summary judgment before the defendants

responded to his motion. He argues that the defendants’ failure to respond to his

summary judgment motion amounted to an admission of liability. We have made

clear, however, that a district court “cannot base the entry of summary judgment on

the mere fact that the motion was unopposed but, rather, must consider the merits

of the motion.” Trs. of Cent. Pension Fund of Int’l Union of Operating Eng’rs &

Participating Emp’rs v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039 (11th Cir.

2004) (internal quotation marks omitted). Thus, the district court did not err in

deciding the merits of Mr. Jacoby’s motion without an official response from the

defendants. 9

       We turn now to the merits of Mr. Jacoby’s claims.

    A. Deliberate Indifference to Mental Health Needs

9
  We also note that the defendants previously had filed detailed Special Reports, which they
asked the district court to construe as motions for summary judgment. And, under the Southern
District of Alabama’s local rules, the defendants were not required to respond to Mr. Jacoby’s
motion if he failed to meet his burden on summary judgment. See S.D. Ala. Local R. 7.2(b)
(“[N]othing in this rule shall be construed to require the non-movant to respond in actions where
the movant has not borne its burden of establishing that there is no dispute as to any material
fact.”).
                                                9
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      Mr. Jacoby first contends the district court erred in granting summary

judgment in favor of Dr. Sherman and Nurse Wasdin on his claim that they were

deliberately indifferent to his mental health needs. He also challenges the district

court’s determinations that Sheriff Mack was not liable under a theory of

supervisory liability and that Baldwin County was not liable for an unconstitutional

custom or policy. We address these arguments in turn.

      “[T]he minimum standard for providing medical care to a pre-trial detainee

under the Fourteenth Amendment is the same as the minimum standard required by

the Eighth Amendment for a convicted prisoner; both [rights] are violated by a

government official’s deliberate indifference to serious medical needs.” Lancaster

v. Monroe Cnty., Ala., 116 F.3d 1419, 1425 n.6 (11th Cir. 1997). To overcome a

motion for summary judgment, a plaintiff must raise a genuine issue of material

fact on the two components that make up a deliberate indifference claim: (1) the

existence of an objectively serious medical need and (2) deliberate indifference to

that need. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). A serious

medical need is “one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize

the necessity for a doctor’s attention.” Id. (internal quotation marks omitted).

Deliberate indifference requires subjective knowledge of a risk of serious harm due




                                         10
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to the medical need and disregard of the risk amounting to more than mere

negligence. Id. at 1245-46.

      We first conclude that Mr. Jacoby’s mental health problems constituted a

serious medical need. The record makes evident that Dr. Sherman, Nurse Wasdin,

and BCCC staff recognized the seriousness of Mr. Jacoby’s condition — he

engaged in self harm, perseverated in complaining about his medications and lack

of medical attention despite receiving attention, and showed outward signs of

mania and depression. Mr. Jacoby’s deliberate indifference claims fail, though,

because Dr. Sherman and Nurse Wasdin attended to his needs and escalated the

nature of their attempts to ensure Mr. Jacoby’s safety and compliance each time he

harmed himself.

      Even viewed in the light most favorable to Mr. Jacoby, the facts do not show

that Dr. Sherman or Nurse Wasdin had subjective knowledge of a serious risk of

harm before Mr. Jacoby’s first instance of self harm. Mr. Jacoby had informed Dr.

Sherman and Nurse Wasdin that he suffered from various forms of mental illness.

He also informed Nurse Wasdin that he had attempted suicide once in 2001 and

once in 2005. But, on his initial medical assessment form, which Nurse Wasdin

completed and Dr. Sherman reviewed, Mr. Jacoby indicated that his suicidal

thoughts and tendencies were past, not present. Further, Dr. Sherman did not

observe any symptoms of mental illness when he first examined Mr. Jacoby.


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Nothing in the record establishes that either Dr. Sherman or Nurse Wasdin had

subjective knowledge that Mr. Jacoby posed a serious risk to himself based on that

initial assessment and appointment.

       Beginning at the end of October 2011 and continuing throughout November,

Mr. Jacoby submitted a number of health services request forms on which he

indicated he suffered from bipolar disorder and needed medication. Dr. Sherman

responded by prescribing Tegretol for seizures and depression. Mr. Jacoby did not

mention any suicidal ideation or intention to harm himself until December 11,

2011. The undisputed evidence shows that request was not received by BCCC

medical staff until two days later, the day after Mr. Jacoby’s first incident of self

harm. 10 Until the first incident, then, neither Dr. Sherman nor Nurse Wasdin was

deliberately indifferent to Mr. Jacoby’s mental health needs. See Farrow, 320 F.3d

at 1243 (requiring subjective knowledge of a serious risk of harm for deliberate

indifference claim).

       From December 12 onward, Dr. Sherman and Nurse Wasdin undoubtedly

had subjective knowledge of Mr. Jacoby’s serious risk of harming himself. But


10
   We note that BCCC’s failure to receive and respond to Mr. Jacoby’s health services request
form in a more timely manner may have been negligent. Mere negligence, however, cannot
support a deliberate indifference claim. See Farrow, 320 F.3d at 1245-46. For this same reason,
Mr. Jacoby’s claim that Dr. Sherman was deliberately indifferent in failing to prescribe him
medication for his bipolar disorder at his initial assessment or before the first incident (during
which time Dr. Sherman had no indication from his examination that Mr. Jacoby posed a serious
risk of harm to himself but had nonetheless prescribed an antidepressant) fails. At most, Dr.
Sherman’s conduct amounted to negligence.
                                                12
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Dr. Sherman continued to provide Mr. Jacoby the psychiatric medication the

hospital had prescribed and monitored Mr. Jacoby weekly to evaluate any

improvements or other changes in his condition. Nurse Wasdin, in turn, placed

Mr. Jacoby on close supervision in a suicide watch cell. Eventually, after he had

harmed himself on a number of occasions, Nurse Wasdin took the more drastic

step of petitioning the probate court to have him involuntarily committed. To the

extent Mr. Jacoby challenges these actions, his claim is based on a disagreement

with the course of treatment Dr. Sherman and Nurse Wasdin pursued. Mr.

Jacoby’s difference of opinion regarding his treatment does not support an Eighth

Amendment claim. See Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). 11

       Because we conclude that Dr. Sherman and Nurse Wasdin were not

deliberately indifferent, we necessarily decide that neither Sheriff Mack nor

Baldwin County can be held liable for deliberate indifference to Mr. Jacoby’s

mental health needs. See Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th

Cir. 2003) (en banc) (providing that a municipality’s § 1983 liability is premised

upon an underlying constitutional violation); Cottone v. Jenne, 326 F.3d 1352,

1360 (11th Cir. 2003) (noting that a supervisor is liable under § 1983 only if he

personally participates in unconstitutional conduct or if his actions can be


11
   Mr. Jacoby has abandoned by not arguing on appeal his claim that Dr. Sherman was involved
in his placement on suicide watch and was deliberately indifferent in regards to that placement.
See Reams v. Irvin, 561 F.3d 1258, 1262 n.4 (11th Cir. 2009).
                                               13
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connected causally to a constitutional deprivation). Thus, the district court did not

err in granting summary judgment in favor of each of these defendants.

     B. Deliberate Indifference to an Unsafe Environment

        Mr. Jacoby next asserts the district court erred in granting summary

judgment in favor of Sheriff Mack and Baldwin County on his claim that, while on

suicide watch, he was housed in an unconstitutionally unsafe environment because

his suicide watch cell was situated such that other inmates routinely passed him

(and others in suicide watch cells) dangerous contraband.12 According to Mr.

Jacoby, inmates (including those on suicide watch) in F block would receive

contraband from general population inmates in E block by pushing or using fishing

line to feed items under the doors of each block. Alternatively, F block inmates

could obtain in trade contraband from others in the BCCC general population

during shower or recreation time. It is through these means, Mr. Jacoby alleged,

that he obtained the razor he used to cut himself on December 22, 2011, as well as

two pieces of metal in the weeks after that incident. He contends the defendants

knew but ignored this risk of contraband exchanges.




12
   On appeal, Mr. Jacoby contends for the first time that Corporals Crull and McCall are also
liable for BCCC’s unsafe environment. Because he never asserted this claim against the
corporals in the district court, we do not address those issues here. See Miller v. King, 449 F.3d
1149, 1150 n.1 (11th Cir. 2006). And, because this is the only claim Mr. Jacoby advances
against Corporal McCall on appeal, we affirm the district court’s grant of summary judgment in
his favor.
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      Commander Byrne, to whom Sheriff Mack delegated responsibility for daily

operations at BCCC, testified that he knew “E and F inmates can slide a note or

razor blade from block to block by pushing the object with force across the

hallway and under the cell block door.” He noted that officers “continually

observ[e] this area,” but inmates still occasionally succeed in passing contraband

that way. Sheriff Mack testified generally to the fact that his policies for BCCC

did not create unsafe conditions for inmates on suicide watch.

      The district court was correct to conclude that, because there is no evidence

that BCCC officers were deliberately indifferent, neither Sheriff Mack nor Baldwin

County can be held liable on Mr. Jacoby’s claim of an unsafe environment.

“Where prison personnel directly responsible for inmate care have knowledge that

an inmate has attempted, or even threatened, suicide, their failure to take steps to

prevent that inmate from committing suicide can amount to deliberate

indifference.” Greason v. Kemp, 891 F.2d 829, 835-36 (11th Cir. 1990). An

officer is not deliberately indifferent “unless there was a strong likelihood, rather

than a mere possibility, that suicide would result from a defendant’s actions or

inaction.” Heggs v. Grant, 73 F.3d 317, 320 (11th Cir. 1996) (internal quotation

marks omitted). Liability attaches only if the officer “knows of and disregards an

excessive risk” of suicide. Farmer v. Brennan, 511 U.S. 825, 837 (1994).




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      Here, it is clear that Commander Byrne knew there was a risk of contraband

passing from general population inmates to inmates on suicide watch. The

evidence is less than clear that Commander Byrne or the other officers knew

contraband was passing in the manner Mr. Jacoby reported. In any event, BCCC

staff took several measures to prevent passing of contraband and to discover any

contraband that was transferred. The hallway between blocks E and F was

consistently monitored, the suicide watch cells were video recorded and monitored

from the officers’ control pod, and officers performed physical checks of inmates

on suicide watch every 15 or 30 minutes. In Mr. Jacoby’s case, after he was

discovered in possession of a razor the first time while on suicide watch, Nurse

Wasdin employed additional means of supervision, requiring that officers search

Mr. Jacoby’s cell each shift and supervise him any time he left his cell. Thus,

assuming BCCC officers knew of the specific risk that Mr. Jacoby would obtain

contraband while on suicide watch under the cell block doors or otherwise, the

evidence in the record belies any claim that the officers disregarded that risk

generally or as to Mr. Jacoby. And, because any supervisory liability as to Sheriff

Mack or municipality liability as to Baldwin County can attach only if Mr.

Jacoby’s constitutional rights were violated, neither is liable here. See City of

Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989); Cottone, 326 F.3d at 1360.




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Summary judgment in favor of Sheriff Mack and Baldwin County therefore was

appropriate.

     C. Excessive Force Claim

       Mr. Jacoby next contends that Corporal Crull used excessive force when, on

December 22, 2011, Corporal Crull and another officer 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.13 In his verified complaint, Mr. Jacoby

asserted that the officers saw him begin to harm himself and, standing outside his

cell, pepper sprayed him while he was lying on the ground bleeding from his

wounds. Also according to Mr. Jacoby, the officers failed to decontaminate him

for eight hours. The officers dispute this version of events (Corporal Crull denies

even being present), and the BCCC nurse’s notes in the record contradict Mr.

Jacoby’s contention about the delay.

       An officer’s excessive use of force violates the Eighth Amendment’s ban on

cruel and unusual punishment. To establish such a claim, a plaintiff must show

that the alleged wrongdoing was objectively “harmful enough” to amount to a

constitutional violation and that “the officials acted with a sufficiently culpable

state of mind,” that is, “maliciously and sadistically to cause harm.” Hudson v.

McMillian, 503 U.S. 1, 7-8 (1992) (alteration and internal quotation marks

13
  Mr. Jacoby does not appeal the district court’s adverse judgment on his claim that Corporal
Crull used excessive force on another occasion, around December 14, 2011.
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omitted). “Prison guards may use force when necessary to restore order and need

not wait until disturbances reach dangerous proportions before responding.”

Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990).

      We conclude that the district court correctly granted summary judgment in

favor of Corporal Crull on Mr. Jacoby’s claim that Corporal Crull and another

officer used pepper spray to subdue him. Mr. Jacoby previously had threatened

violence in addition to self harm, and the officers reasonably could have believed

Mr. Jacoby might use the razor (that Mr. Jacoby admits the officers saw) in

defense when the officers approached or to harm himself further. Thus, to extract

Mr. Jacoby from his cell safely, the officers were justified in their use of pepper

spray. See id.

      Mr. Jacoby’s assertion that the officers failed to decontaminate him for eight

hours is better couched as a deliberate indifference claim. See Haines v. Kerner,

404 U.S. 519, 520-21 (1972) (emphasizing that courts must hold pro se pleadings

to less stringent standards than formal pleadings drafted by lawyers). “Delay in

access to medical attention can violate the Eighth Amendment . . . when it is

tantamount to unnecessary and wanton infliction of pain.” Hill v. Dekalb Reg’l

Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) (citation and internal

quotation marks omitted), abrogated on other grounds by Hope v. Pelzer, 536 U.S.

730 (2002). Deliberate indifference in the form of an unreasonable delay is


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cognizable when prison officials delay treatment for life-threatening emergencies,

but also in “situations where it is apparent that delay would detrimentally

exacerbate the medical problem.” Id. Ultimately, however, “[a]n inmate who

complains that delay in medical treatment rose to a constitutional violation must

place verifying medical evidence in the record to establish the detrimental effect of

delay in medical treatment to succeed.” Id.

       As a preliminary matter, although Corporal Crull urges us to discredit Mr.

Jacoby’s statements about the eight hour delay in treatment and about Corporal

Crull’s involvement in the incident, we will not do so at the summary judgment

stage. See 28 U.S.C. § 1746; Barker v. Norman, 651 F.2d 1107, 1114-15 (5th Cir.

Unit A July 1981)14 (noting that allegations in a verified complaint, made under

penalty of perjury, meet Federal Rule of Civil Procedure 56’s requirements for

affidavits and sworn declarations). Thus, at this stage, we must take as true Mr.

Jacoby’s assertion that officers failed to decontaminate him for eight hours.

       Even taking this assertion as true, however, Mr. Jacoby’s deliberate

indifference claim based on the decontamination delay he alleges cannot survive

Corporal Crull’s motion for summary judgment. Mr. Jacoby’s complaint contains

no allegation that the pepper spray or the delay in decontamination caused him


14
  In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
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injury, and no evidence in the record otherwise indicates that he suffered any harm

as a result of the pepper spray. See Hill, 40 F.3d at 1187. Thus, Mr. Jacoby’s

contentions regarding the pepper spray are insufficient to create a genuine issue of

material fact on his deliberate indifference claim against Corporal Crull.

   D. Retaliation Claim

      Last, Mr. Jacoby contends Nurse Wasdin and Corporal Carr wrongfully

placed him on suicide watch on February 8, 2012, in retaliation for his failure to

take the seizure medication he was prescribed. An inmate must establish three

elements to prevail on a retaliation claim: (1) “his speech or act was

constitutionally protected,” (2) “the defendant’s retaliatory conduct adversely

affected the protected speech,” and (3) “there is a causal connection between the

retaliatory actions and the adverse effect on speech.” Bennett v. Hendrix, 423 F.3d

1247, 1250 (11th Cir. 2005). Where evidence shows that the inmate committed an

infraction and the officials’ conduct was in response to that behavior, the officials’

response is not retaliatory. See O’Bryant v. Finch, 637 F.3d 1207, 1215 (11th Cir.

2011).

      When Mr. Jacoby previously had refused to take his medications and made

demands about his prescriptions or other conditions, he often harmed himself very

shortly thereafter. This time, on February 7, 2012 — the day before Corporal Carr

and Nurse Wasdin returned him to suicide watch — Mr. Jacoby completed a health


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services request form in which he stated, “if I start getting depressed and having

manic states from not taking my meds it’s on you!!” Thus, by the time he again

complained on February 8, Nurse Wasdin and Corporal Carr were within their

authority to place Mr. Jacoby in a more protective environment in anticipation of

any self harm that might follow. See O’Bryant, 637 F.3d at 1215. This was not

retaliatory conduct, and the district court correctly granted summary judgment in

favor of Nurse Wasdin and Corporal Carr on this claim.

                                         IV.

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of defendants Baldwin County, Sheriff Mack, Corporals Carr,

Crull, and McCall, Dr. Sherman, and Nurse Wasdin and denial of Mr. Jacoby’s

cross motion.

AFFIRMED.




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