RODRIGUEZ v. WHITE et al
ORDER ADOPTING in part and REJECTING in part 89 Report and Recommendations; GRANTING in part 83 Motion to Dismiss; ADOPTING 103 Report and Recommendations; and GRANTING 98 Motion to Dismiss. Accordingl y, the Plaintiff's access-to-courts claims are DISMISSED with prejudice and his retaliatory strip search claims and equal protection claims relating to strip searches are DISMISSED without prejudice. The following claims remain: (1) the Plaint iff may pursue prospective equitable relief for his religious freedom claims but qualified immunity bars his damages claims; (2) the Plaintiff may pursue prospective equitable relief and nominal damages based on retaliatory confiscation of legal documents; and (3) the Plaintiff may pursue his equal protection claim based on confiscation of legal documents. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 2/9/2018. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
HJALMAR RODRIGUEZ, Jr.,
JAMES WHITE, et al.,
CIVIL ACTION NO. 5:15-CV-290 (MTT)
Before the Court are two Recommendations from United States Magistrate
Judge Charles H. Weigle, one on the Defendants’ motion to dismiss (Docs. 64; 83) the
Plaintiff’s third amended complaint and the other on the Defendant’s motion to dismiss
(Doc. 98) the Plaintiff’s fourth amended complaint. Docs. 89; 103. For the following
reasons, the first Recommendation (Doc. 89) is ADOPTED in part and REJECTED in
part. The second Recommendation (Doc. 103) is ADOPTED.
On July 27, 2015, the Plaintiff filed his initial complaint pursuant to 42 U.S.C. §
1983 against Defendants White, Lando, and six “Doe” Defendants, alleging that his
constitutional rights were violated when he was subjected to four strip searches and his
legal documents were confiscated while he was being transported to and from a
preliminary criminal proceeding. See generally Doc. 1. After screening the Plaintiff’s
complaint pursuant to 28 U.S.C. § 1915A(a), the Magistrate Judge allowed the following
claims against Defendant Lando to proceed for further factual development: (1) access-
to-courts claims based on confiscation of the Plaintiff’s legal documents; (2) claims
based on the strip searches, except for any equal protection claims related to strip
searches; (3) religious freedom claims; and (4) Eighth Amendment claims based on
denial of restroom breaks. Doc. 6 at 13. The Magistrate Judge recommended
dismissing all other claims. Id.
The Plaintiff objected to the Recommendation and moved to amend his
complaint. Docs. 9; 10. The Court granted the Plaintiff’s motion to amend and adopted
as modified the Recommendation. See generally Doc. 16. Specifically, having
reviewed the Recommendation de novo and liberally construing the Plaintiff’s amended
complaint, the Court allowed the following claims to proceed against all Defendants: (1)
access-to-courts claims based on confiscation of the Plaintiff’s legal documents; (2)
claims based on repeated strip searches, including his equal protection claims; (3)
religious freedom claims; and (4) Eighth Amendment claims based on denial of
restroom breaks. Id. at 5-6. In addition, the Court allowed a fifth category of claims to
go forward—retaliation claims based on continued strip searching and withholding of
legal documents. Id. at 6.
On October 17, 2016, the Plaintiff filed a second motion to amend, seeking to
name the Doe Defendants and to join additional Defendants. Doc. 33 at 1. The
Magistrate Judge granted the motion in part, permitting the Plaintiff to identify the Doe
Defendants but denying his request to join Brian Owens as a defendant. Doc. 35 at 1.
On February 21, 2017, the Defendants moved to dismiss the Plaintiff’s second
amended complaint, arguing that the Plaintiff has failed to state plausible claims and
that the Defendants are protected under qualified immunity and Eleventh Amendment
immunity. See generally Doc. 64-1. Before filing a response, the Plaintiff moved for
leave to file a third amended complaint and to dismiss Defendants James Roe, Andrew
Leyden, Michael Mahone, Michael Wilson, and Tyler Adams and also to dismiss any
Eighth Amendment claims. Doc. 70 at 1. The Magistrate Judge granted the Plaintiff’s
motion and noted that the following claims remain: (1) religious freedom claims; (2)
access-to-courts claims; (3) retaliation claims; and (4) equal protection claims. Docs.
80; 89 at 1.
The Defendants moved to dismiss the Plaintiff’s third amended complaint (Doc.
71). Doc. 83. In their motion, the Defendants have “incorporated through adoption of
all applicable arguments supporting the first Motion to Dismiss.” Id. at 1. The
Magistrate Judge therefore terminated the Defendants’ previous motion to dismiss (Doc.
64) as moot. Doc. 89 at 1.
In the July 27, 2017 Recommendation on the Defendants’ motion to dismiss the
Plaintiff’s third amended complaint, the Magistrate Judge recommends that: (1) the
Plaintiff be allowed to pursue prospective equitable relief for his religious freedom
claims but qualified immunity bars his claims for damages; (2) the Plaintiff’s access-tocourts claims be dismissed with prejudice; (3) the Plaintiff be allowed to pursue nominal
damages based on the Defendants’ alleged retaliatory confiscation of legal documents
and retaliatory strip searches; and (4) the Plaintiff be allowed to pursue prospective
equitable relief based on the Defendants’ alleged retaliatory confiscation of legal
documents. Id. at 16, 27. The Magistrate Judge also recommended dismissing without
prejudice the Plaintiff’s equal protection claims but granted him leave to amend “in order
to cure his deficient equal protection claim.” Id. at 18.
The Plaintiff accordingly filed a fourth amended complaint, in which he raises
new factual allegations to support his equal protection claim. Doc. 95 ¶ 13. The
Defendants then moved to dismiss the Plaintiff’s fourth amended complaint, arguing that
the Plaintiff has still failed to state a plausible equal protection claim. See generally
Docs. 98; 98-1.
In the November 2, 2017 Recommendation on the Defendant’s motion to dismiss
the Plaintiff’s fourth amended complaint, the Magistrate Judge recommends that the
Plaintiff’s equal protection claim relating to strip searches be dismissed. Doc. 103 at 23. However, in light of the Plaintiff’s new factual allegations in his fourth amended
complaint, the Magistrate Judge allowed the Plaintiff’s equal protection claim regarding
the confiscation of his legal documents to proceed for further factual development.1 Id.
Both the Plaintiff and the Defendants have objected to the July 27, 2017
Recommendation, and neither has objected to the November 2, 2017
Recommendation. Docs. 91; 93. Pursuant to 28 U.S.C. 636(b)(1), the Court has
considered the objections and made a de novo determination of the portions to which
the parties object.
First, the Plaintiff objects to his available relief. In particular, he argues that he is
entitled to punitive damages because the Defendants intentionally violated and
The Magistrate Judge withdrew his prior recommendation to dismiss all equal protection claims. Doc.
103 at 1 n.1.
disregarded his constitutional rights and because “Congress, in [e]nacting the PLRA
emphatically made no stipulation that only physical injuries could be compensated;
abrogating punitive damages requirements.” Doc. 93 at 3. While it is true Congress
never stipulated that only physical injuries could be compensated, Eleventh Circuit
precedent is clear that in order to recover punitive damages, a prisoner must meet 42
U.S.C. § 1997e(e)’s physical injury requirement.2 See Al-Amin v. Smith, 637 F.3d 1192,
1199 (11th Cir. 2011) (“In sum, our published precedents have affirmed district court
dismissals of punitive damage claims under the PLRA because the plaintiffs failed to
meet § 1997e(e)’s physical injury requirement.”). The Plaintiff has not alleged that he
suffered any physical injury and thus the Magistrate Judge did not err in limiting the
Next, the Plaintiff objects to the Recommendation that his access-to-courts
claims be dismissed. Doc. 93 at 6. In order to bring an access-to-courts claim, the
Plaintiff must first establish an actual injury. Barbour v. Haley, 471 F.3d 1222, 1225
(11th Cir. 2006). “Actual injury may be established by demonstrating that an inmate’s
efforts to pursue a nonfrivolous claim were frustrated or impeded by a deficiency in the
prison library or in a legal assistance program or by an official’s action.” Id. (citations
In his objection, the Plaintiff states that the arguments in his response (Doc. 74) to the Defendants’
motion to dismiss were “basically not addressed” by the Magistrate Judge. Doc. 93 at 4. The Plaintiff
seems to be referring to his argument that the Supreme Court decision in Smith v. Wade, 461 U.S. 30
(1983) supports his position that he is entitled to punitive damages for the alleged injury that he suffered.
Docs. 74 at 14; 93 at 4. However, Smith predates Congress’s enactment of the Prison Litigation Reform
Act of 1995 (“PLRA”). This is significant because while Smith is still good law in that punitive damages
are available upon a showing of “evil motive or intent,” “callous indifference,” and reckless disregard of
the plaintiff’s rights, when the plaintiff is a prisoner, like in this case, his claims are governed by the PLRA,
which “precludes the recovery of punitive damages in the absence of physical injury.” Al-Amin v. Smith,
637 F.3d 1192, 1199 (11th Cir. 2011) (citation omitted). Again, because the Plaintiff has not alleged any
physical injury, and certainly not “a more than de minimis” physical injury, he is not entitled to
compensatory or punitive damages. See Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015) (noting
that a prisoner who suffers a constitutional violation without more than a de minimis physical injury may
recover nominal damages but not compensatory or punitive damages).
omitted and emphasis added). The actual injury that the Plaintiff contends he suffered
is twofold: that because his legal documents were confiscated, (1) he could not support
his jurisdictional challenge at his arraignment hearing; and (2) the state court “abated
the jurisdiction itself, by not fulfilling its Sixth and Fourteenth Amendment mandates to
have jurisdiction.” Doc. 93 at 8, 10. Regarding the first alleged injury, the Plaintiff
seems to acknowledge that even if he had his legal documents, his jurisdictional
challenge would have been based on a frivolous “sovereign citizen” theory. See id. at 6
(“[P]laintiff specifically does not object to the magistrate’s R&R regarding the sovereign
citizen matter.”). The Court agrees that the Plaintiff’s alleged inability to argue his
frivolous challenges to the state court’s jurisdiction is not an actual injury.
With regard to the Plaintiff’s claim that he suffered an actual injury because the
state court “abated the jurisdiction itself,” it is difficult to tell from the Plaintiff’s objection
exactly what he means by this. See id. at 6-10. What is clear is that this injury,
according to the Plaintiff’s third amended complaint, is based upon his challenges as a
sovereign citizen to the jurisdiction of the state court, again a patently frivolous
contention. See Doc. 71 at 3. In any event, as the Magistrate Judge noted, the state
court, in response to the Plaintiff’s jurisdictional challenges, entered a not guilty plea on
his behalf. Doc. 89 at 23. This did not injure or prejudice the Plaintiff. Accordingly, the
Plaintiff’s access-to-courts claims fail.
Finally, the Plaintiff objects to the Recommendation that the Defendants are
entitled to qualified immunity for the Plaintiff’s religious freedom claims. Doc. 93 at 10.
To give context, the Plaintiff was strip searched on four different occasions: first, upon
leaving the Georgia Diagnostic and Classification Prison (GDCP) to be transferred to
Hays State Prison (HSP); second, upon arriving at the HSP; third, upon leaving HSP to
go to superior court; and, finally, upon his reentry to the GDCP. Doc. 71 at 3-5. The
Plaintiff concedes that the first two strip searches were not unconstitutionally conducted.
Doc. 93 at 12. As for the third and fourth searches, the Court has reviewed this portion
of the Recommendation de novo and accepts the findings, conclusions, and
recommendations of the Magistrate Judge. Accordingly, the Defendants are entitled to
qualified immunity with respect to all four strip searches.
The Defendants object in part to the Magistrate Judge’s findings on the Plaintiff’s
retaliation claims.3 Doc. 91 at 2. Specifically, the Defendants argue that the Plaintiff
has failed to state a plausible claim for retaliation regarding the strip searches and that,
even if he has stated a plausible claim, they are entitled to qualified immunity. Id. at 2, 5.
As noted, the Plaintiff conceded that the Defendants were entitled to qualified immunity
on the Plaintiff’s religious freedom claims arising from the first and second strip
searches. Doc. 93 at 12. That concession was based in part on his acknowledgement
that “the first strip search is all a part of following the life in prison [and] [t]he second
strip search can be construed as being reasonable under the prison context, but was
pushing it.” Id. The Plaintiff makes a similar concession with regard to his retaliation
claims based on the strip searches. Specifically, the Plaintiff concedes that his
retaliation claims are limited to the third and fourth searches. Doc. 94 at 5.
The Defendants do not dispute that the Plaintiff has alleged a plausible retaliation claim relating to the
confiscation of legal documents, nor do they dispute that they are not entitled to qualified immunity with
respect to that claim. See Doc. 91 at 3-4.
The Defendants initially contended that because the Plaintiff’s allegations of
retaliatory conduct were conclusory, he has failed to state a claim. Doc. 64-1 at 11-12.
They have now raised a more specific argument—the Plaintiff’s “conclusory allegations
cannot suffice to establish a causal connection between Plaintiff’s alleged objections
and his strip searches.” Doc. 91 at 4. To state a claim for retaliation, the Plaintiff must
show that (1) his speech or act was constitutionally protected; (2) a prison official’s
retaliatory conduct adversely affected the protected speech; and (3) a causal
connection exists between the protected conduct and the adverse effect on the speech.
Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (citation omitted). To establish
that the Defendants’ conduct adversely affected his protected speech, the Plaintiff must
show the Defendants’ conduct “would likely deter a prisoner of ordinary firmness” from
exercising his or her First Amendment rights. Smith v. Mosley, 532 F.3d 1270, 1277
(11th Cir. 2008) (alteration omitted) (citing Bennett v. Hendrix, 423 F.3d 1247, 1254
(11th Cir. 2005)). To establish causation, the Plaintiff must show that the Defendants
were “subjectively motivated to discipline” him for exercising his constitutional rights. Id.
Here, even assuming the Plaintiff engaged in constitutionally protected speech
when he objected to strip searching, he has failed to establish the other two elements of
a retaliation claim. Doc. 71 at 4-5. First, the Plaintiff alleges no facts to support a
conclusion that a “prisoner of ordinary firmness” would be deterred from exercising his
First Amendment rights by the alleged strip searches. Mosley, 532 F.3d at 1277. On
the contrary, the Plaintiff makes it abundantly clear in his third amended complaint, his
objection, and his response to the Defendants’ objection, that prison strip searches are
routine. Docs. 71 at 3-5; 93 at 12; 94 at 5. While he may believe that the third and
fourth searches were retaliatory, the question is whether a prisoner of ordinary firmness
would be deterred by something that is a routine part of prison life. Nothing in the
complaint explains how such a prisoner of ordinary firmness would be deterred to speak
because of the strip searches that were conducted.
Second, the Plaintiff has not plausibly alleged that the Defendants, when they
searched him, acted in retaliation for the Plaintiff’s exercise of his First Amendment
rights. Rather, he alleges that “[i]n following the policy [of their commanding officers,]
[D]efendants Landor, Marshall and Knox, stated ‘they didn’t care about plaintiff’s
religious obligations,’ that  a prisoner has no rights and [should] do what he’s told, [and
said] ‘now strip or he’ll be stripped forcefully.’” Doc. 71 at 4-5. Even construing this
liberally, it appears that the Defendants conducted the search because of prison policy,
or at least the policy of their commanding officers, and, when the Plaintiff objected on
religious grounds, they proceeded with the searches anyway.4 While the searches may
have been conducted notwithstanding the Plaintiff’s religious beliefs, they were not done
because of those beliefs or his assertion of his beliefs. Accordingly, because the
Plaintiff cannot support two of the three elements of a retaliation claim with nonconclusory allegations, the Plaintiff’s third amended complaint fails to state a plausible
retaliation claim regarding the strip searches.5 See Hoever v. Andrews, 622 F. App’x.
Later in his third amended complaint, the Plaintiff alleges his bare conclusion, based “upon reason and
belief,” that he “was continuously strip search [sic] because he protested the second strip search, by
stating his religious obligations . . . .” Doc. 71 at 5. This conclusion is not at all plausible given his
specific allegations about the four strip searches.
Of course, because the Plaintiff has failed to allege a constitutional violation, the Defendants would also
be entitled to qualified immunity. See Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (noting
that once the defendant shows he was acting within his discretionary authority, and if the plaintiff fails to
allege facts establishing a constitutional violation, the defendant is entitled to qualified immunity).
888, 889 (11th Cir. 2015) (“Absent non-conclusory allegations supporting two of the
three elements of a retaliation claim, the third amended complaint fails to state a claim
on which relief may be granted.”).
For the foregoing reasons, the July 27 Recommendation (Doc. 89) is ADOPTED
in part and REJECTED in part and the November 2 Recommendation (Doc. 103) is
ADOPTED. Accordingly, the Plaintiff’s access-to-courts claims are DISMISSED with
prejudice and his retaliatory strip search claims and equal protection claims relating to
strip searches are DISMISSED without prejudice.6 The following claims remain: (1)
the Plaintiff may pursue prospective equitable relief for his religious freedom claims but
qualified immunity bars his damages claims; (2) the Plaintiff may pursue prospective
equitable relief and nominal damages based on retaliatory confiscation of legal
documents; and (3) the Plaintiff may pursue his equal protection claim based on
confiscation of legal documents.
SO ORDERED, this 9th day of February, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Accordingly, the Court REJECTS the Recommendation that the Defendants are not entitled to qualified
immunity with regard to the Plaintiff’s retaliatory strip search claims. Doc. 89 at 25.
The Court does this even though the Plaintiff is far from an inexperienced litigator. On the contrary, he
has proved to be an adept, proficient litigator, so adept that he assists other prisoners with their claims.
See Barfield v. Lewis et al., No. 5:17-cv-240, Doc. 26 at 2 (June 26, 2017) (“Being that the Plaintiff in the
above-styled action has very well established that the Plaintiff is an illiterate person and is very lacking in
education and legal knowledge and was only able to file this civil action with the FULL assistance of a
prison jail-house lawyer Mr. Hjalmar Rodriguez. . . .”).
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