Barr v. Gwinnett County

Filing 14

ORDER adopting 12 Non-Final Report and Recommendation. Plaintiff's claim in his second amended complaint, for deliberate indifference to a serious medical need regarding the denial of prescribed medication and further medical treatment be ALLO WED TO PROCEED. IT IS FURTHER RECOMMENDED that Plaintiff's claim against Defendant Cain be DISMISSED WITHOUT PREJUDICE and that Plaintiff's remaining claims in his second amended complaint, including his claims against Defendants Gwinnett County, be DISMISSED under 28 U.S.C. § 1915A. Signed by Judge William S. Duffey, Jr on 3/28/2013. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHAEL ANTHONY BARR,
Plaintiff,
v.

1:12-cv-2006-WSD-LTW

GWINNETT COUNTY et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s NonFinal Report and Recommendation (“Second R&R”) [12-1], following her review
of Plaintiff’s Second Amended Complaint [11] pursuant to 28 U.S.C. § 1915A.
I.

BACKGROUND
On June 8, 2012, Plaintiff Michael Anthony Barr (“Plaintiff”), an inmate at

the Gwinnett County Jail appearing pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983. On July 13, 2012, Plaintiff filed his First Amended Complaint
[5] asserting civil rights claims against Gwinnett County; the Honorable Judge
Tom Davis, in his individual and official capacity (“Judge Davis”); Gwinnett
Police Officer Corradino # 1410, in his individual and official capacity (“Officer
Corradino”); Gwinnett Police Official (John Doe), in his individual and official

capacity (“Unknown Officer”); and Gwinnett Judicial Official Daniel Porter, in his
individual and official capacity (“Prosecutor Porter”). The First Amended
Complaint asserted claims of unlawful arrest and searches by Officer Corradino
and the Unknown Officer (collectively, the “Officers”), excessive force by the
Officers, deliberate indifference to medical needs by unnamed Jail officials,
unlawful denial of bail by Judge Davis, failure to correct constitutional violations
by Judge Davis and Prosecutor Porter, and violation of Plaintiff’s right to access
the court or communicate with his lawyer by mail by unnamed Jail officials.
On August 23, 2012, Judge Walker issued her first Non-Final Report and
Recommendation [7] (“First R&R”), after reviewing the First Amended Complaint
for frivolity under 28 U.S.C. § 1915A. Judge Walker recommended that Plaintiff’s
claims against Gwinnett County and the Officers, in their official capacities, be
dismissed because Plaintiff failed to allege a policy or custom that resulted in
constitutional injury. Judge Walker recommended that all claims against Judge
Davis and Prosecutor Porter be dismissed based on absolute immunity. Judge
Walker recommended that Plaintiff’s claims for denial of medical care and claims
relating to mail be dismissed because the allegations did not support the claims.
Finally, Judge Walker recommended that Plaintiff’s claims against Officer

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Corradino and the Unknown Officer, in their individual capacities, be allowed to
proceed.
On September 7, 2012, Plaintiff filed a response [9] to the First R&R, asking
the Court to accept the response “as correction to amended complaint as well as
objection to the following specific objection.” Couched as “objections” to the First
R&R, Plaintiff offered substantial additional factual allegations regarding his
medical treatment at the Jail and stated that it his “understanding” that Gwinnett
County has a specific policy calling for unconstitutional vehicle stops. Plaintiff
also requested leave to assert claims against Pam Cain, of the Gwinnett County
Police Department, for tampering with evidence in his case.
On October 11, 2012, the Court issued its Order [13] on the First R&R.
Finding that Plaintiff did not file objections to any particular conclusions in the
First R&R, the Court adopted the First R&R and dismissed all of Plaintiff’s claims
except those asserted against the Officers in their individual capacities. The Court
construed Plaintiff’s response to the First R&R as a motion to file an amended
complaint. The Court granted Plaintiff leave to re-plead his medical indifference
claim and claims against Gwinnett County and to add claims against Ms. Cain.
On November 9, Plaintiff filed his Second Amended Complaint in which he
(i) re-pleads his medical indifference claim, based on the additional allegations

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made in the response to the First R&R, (ii) re-pleads the claims against Gwinnett
County, based on his allegations of various unconstitutional policies of the County,
and (iii) adds claims against Ms. Cain based on alleged evidence tampering.
On December 6, 2012, after reviewing the Second Amended Complaint
under 28 U.S.C. § 1915A, Judge Walker issued her Second R&R [12-1]. Judge
Walker first considered Plaintiff’s allegations of unconstitutional policies instituted
in Gwinnett County. Plaintiff alleges that Gwinnett prosecutors are obtaining
“special presentments” from grand juries and “framing” the special presentments
as indictments. Judge Walker found that the special presentment procedure is valid
under sections 17-7-50 and 17-7-51 of the Georgia Code and that it does not
support a federal claim under § 1983. Plaintiff alleges that Gwinnett County has a
“protocol . . . to profile and stop vehicles between late night, early morning hours
to check for D.U.I.’s.” Judge Walker found that this allegation is not sufficient to
show a constitutional violation because many “profiles” are lawful and justify a
stop. Finally, Plaintiff alleges that Jail policy provides that “only postcards can be
sent” and that inmates may not watch news programs or receive newspapers.
Judge Walker found that Plaintiff’s “postcard” allegation is belied by the fact that
he has regularly sent non-postcard mail in connection with this litigation. Judge
Walker further found that Plaintiff’s bare allegation regarding news access is not

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sufficient to show a constitutional deprivation because prisoners do not have a
constitutional right to watch television and Plaintiff does not allege that he has
been deprived of all sources of news. Judge Walker recommends that Plaintiff’s
claims against Gwinnett County be dismissed.
Judge Walker next reviewed Plaintiff’s claims of indifference to serious
medical needs. Plaintiff asserts two incidents of medical indifference:
(i) Plaintiff’s treatment for injuries when he initially arrived at the Jail, and (ii) Jail
officials’ subsequent refusal to give Plaintiff his prescription pain medication and
denials of his requests to see a doctor. Judge Walker found that the first incident is
not sufficient to state a constitutional claim because Plaintiff’s allegations show
that he received treatment and that his claim is based solely on his disagreement
with the course of that treatment. Judge Walker found that the second incident
does state a claim because Plaintiff’s allegations support a plausible finding that,
although Jail officials knew of Plaintiff’s injuries and that he had been prescribed
pain medication, they unreasonably denied Plaintiff his treatment. Judge Walker
noted that, although Plaintiff did not identify the specific Jail officials, he likely
will be able to as this case proceeds. Judge Walker recommends that the medical
indifference claim based on the second incident be allowed to proceed.

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Judge Walker finally reviewed Plaintiff’s claims against Pam Cain. Plaintiff
alleges that there was a discrepancy between the weight of the drugs found in his
car as recorded when Plaintiff was first brought to the Jail and as recorded in a
report later issued by the Georgia Bureau of Investigations. Plaintiff suggests that
the drug evidence was tampered with before being sent to the Georgia Bureau of
Investigations. Plaintiff does not allege any particular actions or omissions by Ms.
Cain, only that she was in charge of the evidence collected by the police. Judge
Walker found that this allegation is not sufficient to support a claim against Ms.
Cain, and she recommends that Ms. Cain be dismissed as a defendant.
Plaintiff did not file objections, or otherwise respond, to the Second R&R.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. IV 2010);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation,

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a court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.

Analysis

In this case, because Plaintiff did not object to the Second R&R, the Court
reviews the Second R&R for plain error. Finding none, the Court adopts Judge
Walker’s Second R&R. Plaintiff’s claims against Gwinnett County and Pam Cain
are required to be dismissed for failure to state claims for relief. Plaintiff’s claims
regarding his initial medical treatment at the Jail also are required to be dismissed
for failure to allege claims for relief. Plaintiff’s claims regarding Jail officials’
refusal to give Plaintiff his prescription medication, and refusal to allow Plaintiff to
see a doctor, may proceed.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Non-

Final Report and Recommendation [12-1] is ADOPTED. In addition to the claims
discussed in the Court’s October 11, 2012, Order [13], Plaintiff’s medical
indifference claims, based on Jail officials’ refusal to give Plaintiff his prescription
medication, and refusal to allow Plaintiff to see a doctor, are ALLOWED TO
PROCEED. Plaintiff’s remaining medical indifference claims are DISMISSED,

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and Defendants Gwinnett County and Pam Cain are DISMISSED pursuant to 28
U.S.C. § 1915A.

SO ORDERED this 28th day of March, 2012.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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