RODRIGUEZ v. WHITE et al

Filing 16

ORDER ADOPTING in part and REJECTING in part 6 Report and Recommendations; GRANTING 10 Motion to Amend/Correct; and DENYING as moot 5 Motion for Judgment on the Pleadings. The matter of identifying the D oe defendants for service is REFERRED back to the Magistrate Judge. The following claims may proceed against all Defendants: (1) access-to-courts claims based on the confiscation of the Plaintiffs legal documents; (2) claims based on repeated strip searches, including his equal protection claims; (3) religious freedom claims; (4) Eighth Amendment claims based on denial of restroom breaks, and (5) retaliation claims. His due process claims are DISMISSED without prejudice. It is ORDERED that se rvice be made on Commander White and Correctional Officer Lando and that they file an answer or such other response as may be appropriate under Fed. R. Civ. P. 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/14/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
HJALMAR RODRIGUEZ,
Plaintiff,
v.
Commander WHITE, et al.,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:15-CV-290 (MTT)

ORDER
After Magistrate Judge Charles H. Weigle conducted the preliminary screening of
Plaintiff Hjalmar Rodriguez’s complaint required by 28 U.S.C. § 1915A, he permitted
these claims against Defendant Lando1 to proceed: (1) access-to-courts claims based
on the confiscation of the Plaintiff’s legal documents; (2) claims based on repeated strip
searches, except for any equal protection claims related to the strip searches;
(3) religious freedom claims; and (4) Eighth Amendment claims based on denial of
restroom breaks. (Doc. 6). He recommends dismissing: (1) claims against the Doe
defendants; (2) access-to-courts claims against Defendant White; (3) equal protection
claims; (4) all due process claims based on the confiscation of the Plaintiff’s legal
documents; and (5) Eighth Amendment claims against Defendant White. (Doc. 6). He
also recommends denying as moot the Plaintiff’s Motion for Judgment on the Pleadings.
(Docs. 5; 6 at 13).
The Plaintiff moved for reconsideration of the Recommendation. (Doc. 9) The
Court construes this motion as an objection. The Plaintiff attached an amended
1

The original complaint and Recommendation refer to this defendant as Defendant Mando. (Docs. 1, 6).
In his objection, the Plaintiff states that he misspelled Defendant Lando’s name as “Mando.” (Doc. 9 at
2). The Court will refer to him as “Lando” with the understanding that references in the Recommendation
to “Mando” refer to the same defendant.

complaint to his objection, which contains additional factual allegations. (Doc. 9-1). He
also moved to amend his complaint pursuant to Fed. R. Civ. P. 15(a). (Doc. 10). This
motion is GRANTED. The Court has reviewed the objection and amended complaint
and has made a de novo determination of the portions of the Recommendation to which
the Plaintiff objects.
I. DISCUSSION
A. Claims Against Doe Defendants
The Magistrate Judge recommends dismissing the Doe defendants because the
Plaintiff has not sufficiently described the defendants to identify them for service. (Doc.
6 at 5). The Plaintiff explains in his amended complaint that he wants to sue six John
Does who are members of the Cobra Squad Tactical Unit who accompanied him to
Chattooga County Superior Court on January 23, 2015. (Doc. 9-1, ¶¶ 7, 9-10). He says
they are employed by the Georgia Department of Corrections and can be located by
Linda Phillip at Georgia Diagnostic and Classification Prison in Jackson, Georgia. (Doc.
9-1 at 5). With this information, the State can likely identify these defendants for
service. Therefore, the Court REJECTS this section of the Recommendation and
REFERS this matter back to the Magistrate Judge.
B. Confiscation of Legal Papers
The Magistrate Judge recommends dismissing the access-to-courts claim
against White because the Plaintiff did not allege that White actually took the legal
papers or interfered with the Plaintiff’s ability to challenge the charges against him.
(Doc. 6 at 6). In the amended complaint, the Plaintiff alleges that he asked Lando for
the documents that had been taken from him, and Lando told him White had the
documents. (Doc. 9-1, ¶ 24). He also alleges that Lando, White, and the Doe
defendants conspired together to keep the documents from him during the legal
-2-

proceedings “with the intent o[f] injuring Plaintiff in his litigation.” (Doc. 9-1, ¶ 26). Very
liberally construed, these allegations are sufficient to state a claim against White and
the Doe defendants, as well. The Plaintiff’s access-to-courts claims against White and
the Doe defendants may proceed along with the claim against Lando.
C. Claims Regarding Excessive Strip Searches
The Magistrate Judge allowed the Plaintiff’s claim against Lando for excessive
strip searches to proceed. (Doc. 6 at 6). In his amended complaint, the Plaintiff also
made claims against White and the Doe defendants regarding the excessive strip
searches. The Plaintiff was strip searched before leaving for Chattooga Count Superior
Court. (Doc. 9-1, ¶ 12). He alleges that when he was told to strip again upon arrival at
Hays State Prison, he told Lando, White, and the Doe defendants that he had not had
the opportunity to touch anything since his last strip search because his hands had
been shackled inside of bags and chained to his chest, but he was strip searched two
more times by Lando and the Doe defendants because it was the “custom and
command” of White. (Doc. 9-1, ¶¶ 15-16, 18, 20, 32). Liberally construed, these
allegations are sufficient to state claims against White and the Doe defendants for
excessive strip searches.
The Magistrate Judge recommends dismissing the Plaintiff’s equal protection
claim against Lando because the Plaintiff did not allege that Lando treated him
differently than any other similarly situated inmates. (Doc. 6 at 9). In his amended
complaint, the Plaintiff specifically alleges that Lando, White, and the Doe defendants
treated him differently than similarly situated inmates because he is Muslim when they
conducted excessive strip searches. (Doc. 9-1, ¶ 20). This is sufficient to state an
equal protection claim against them for purposes of Section 1915A screening.

-3-

D. Religious Freedom Claims
The Magistrate Judge allowed the Plaintiff’s religious freedom claim against
Lando to proceed because the Plaintiff alleged that Lando conducted strip searches in
violation of the Plaintiff’s religious beliefs and even though there was a “body scanning
machine” in the next room that would have revealed any contraband he possessed.
(Doc. 6 at 10). In his amended complaint, the Plaintiff alleges that White and the Doe
defendants also participated in this violation of his religious beliefs. (Doc. 9-1, ¶¶ 16-17,
20, 35). Thus, the Plaintiff’s religious freedom claims may proceed against White and
the Doe defendants, as well.
E. Eighth Amendment Claims
The Magistrate Judge allowed the Plaintiff’s Eighth Amendment claim for the
denial of restroom breaks to proceed against Lando. (Doc. 6 at 11). In his amended
complaint, the Plaintiff alleges that White and the Doe defendants also refused him
restroom breaks when he requested them. (Doc. 9-1, ¶¶ 19, 30). Thus, the Plaintiff has
stated Eighth Amendment claims against White and the Doe defendants, as well.
F. Retaliation
The Plaintiff has added a retaliation claim in his amended complaint. “For a
prisoner to state a First Amendment retaliation claim under § 1983, the prisoner must
establish: (1) that his speech or act was constitutionally protected; (2) that the
Defendant's retaliatory conduct adversely affected the protected speech; and (3) that
there is a causal connection between the retaliatory actions and the adverse effect on
the speech.” Thomas v. Lawrence, 421 F. App'x 926, 928 (11th Cir. 2011) (citing
Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008)).
The Plaintiff alleges that he was excessively strip searched by Lando, White,
and the Doe defendants because he spoke up against strip searches. (Doc. 9-1, ¶¶ 20,
-4-

32). He also alleges that Lando, White, and the Doe defendants refused to return his
legal documents in retaliation for his threats to sue them for depriving him of those
documents. (Doc. 9-1, ¶ 26).
Viewing his allegations as true, (1) the Plaintiff exercised his right to protest
about excessive strip searches and the refusal to return his legal documents, and (2) in
response, Lando, White, and the Doe defendants continued strip searching him instead
of using the scanning machine, and they interfered with his legal proceedings by
refusing to return his documents. Liberally construing his allegations, he has stated
retaliation claims against them. Cf. Smith v. Villapando, 286 F. App’x 682, 685-86 (11th
Cir. 2008). These claims may proceed.
G. Motion for Judgment on the Pleadings
The Magistrate Judge recommends denying as moot the Plaintiff’s Motion for
Judgment on the Pleadings. (Docs. 5; 6 at 13). In the motion, the Plaintiff requests to
conduct discovery to determine the names and addresses of the Doe defendants for
service and explains that he filed the motion because he “does not want to be in any
error for failure to litigate his case.” (Doc. 5). As discussed above, the Plaintiff may
now have provided sufficient information to identify these defendants for service. If not,
he may engage in discovery to identify these defendants and move to amend his
complaint at that time. This motion is DENIED as MOOT. (Doc. 5).
II. CONCLUSION
The Motion to Amend is GRANTED. (Doc. 10). The Recommendation is
ADOPTED in part and REJECTED in part. The matter of identifying the Doe
defendants for service is REFERRED back to the Magistrate Judge. The following
claims may proceed against all Defendants: (1) access-to-courts claims based on the
confiscation of the Plaintiff’s legal documents; (2) claims based on repeated strip
-5-

searches, including his equal protection claims; (3) religious freedom claims; (4) Eighth
Amendment claims based on denial of restroom breaks, and (5) retaliation claims. His
due process claims are DISMISSED without prejudice. The Plaintiff’s Motion for
Judgment on the Pleadings is DENIED as MOOT. (Doc. 5). It is ORDERED that
service be made on Commander White and Correctional Officer Lando and that they file
an answer or such other response as may be appropriate under Fed. R. Civ. P. 12, 28
U.S.C. § 1915, and the Prison Litigation Reform Act. The Defendants are also
reminded of the duty to avoid unnecessary service expenses and of the possible
imposition of expenses for failure to waive service. The Plaintiff is reminded of his duty
to keep the clerk of court and all opposing attorneys advised of his current address, duty
to prosecute this action, and the provisions regarding discovery in the Magistrate
Judge's order.
SO ORDERED, this 14th day of July, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

-6-