Georgia Cases October 05, 2020: Hawbaker v. Darryl

Case Description

[499 F.Supp.3d 1246]

Donald Francis Hawbaker, Donald Hawbaker, Attorney at Law, Griffin, GA, for Plaintiff.

ORDER

TIMOTHY C. BATTEN, SR., United States District Judge

This case comes before the Court on Magistrate Judge Russell G. Vineyard's report and recommendation (the "R&R") [5], which recommends dismissing this case for failure to state a claim. Plaintiff Donald F. Hawbaker has filed objections [9]. Hawbaker has also filed two amended complaints [8,10].

A district judge has a duty to conduct a "careful and complete" review of a magistrate judge's R&R. Williams v. Wainwright , 681 F.2d 732, 732 (11th Cir. 1982) (per curiam) (quoting Nettles v. Wainwright , 677 F.2d 404, 408 (5th Cir. Unit B 1982) ). This review may take different forms, however, depending on whether there are objections to the R&R. The district judge must "make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1)(C). In contrast, those portions of the R&R to which no objection is made need only be reviewed for "clear error." Macort v. Prem, Inc. , 208 F. App'x 781, 784 (11th Cir. 2006) (per curiam) (quoting Diamond v. Colonial Life & Accident Ins. , 416 F.3d 310, 315 (4th Cir. 2005) ).

"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles , 677 F.2d at 410 n.8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410.

After conducting a complete and careful review of the R&R, the district judge "may accept, reject, or modify" the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1)(C) ;

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Williams , 681 F.2d at 732. The district judge "may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).

Hawbaker, a pretrial detainee at the Spalding County Jail in Griffin, Georgia, brought the instant 42 U.S.C. § 1983 action complaining that officials at the jail have denied him in-person meetings with his defense counsel in violation of his Sixth Amendment rights, and because he could not meet with his lawyer, he was denied bail at his first bail hearing. Hawbaker acknowledges that he was permitted to communicate with his counsel on the telephone and via email.

In the R&R, the magistrate judge reviewed the complaint pursuant to 28 U.S.C. § 1915A and determined that Hawbaker had failed to state a claim for relief because he does "not have a right to any particular means of access" to counsel, and he has not alleged irreparable harm or prejudice from the suspension of in-person visits with his attorney. Aswegan v. Henry , 981 F.2d 313, 314 (8th Cir. 1992).

In his objections, Hawbaker first complains that the magistrate judge erred in failing to permit him to amend his complaint. However, Hawbaker has now amended his complaint twice, and this Court will accept those amendments.

Hawbaker next disagrees with the magistrate judge's statement that "Plaintiff speculates that the lack of in-person visitation may have caused him to be held without bail for longer than he otherwise would have been." [5] at 3. Hawbaker argues that his allegation that he was denied bond because he could not meet with his lawyer is an assertion of fact and not speculation. This Court finds, however, that the magistrate judge's characterization is correct. This Court takes judicial notice of the fact that Hawbaker is currently charged with shooting at sheriff's deputies who had arrived at Hawbaker's home to arrest him for misdemeanor charges. His contention that he would have been granted bond is pure speculation because he fails to allege what he could have told his attorney (that he could not tell the attorney in a phone call or email) that might have changed the outcome of his bond hearing. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level."). Moreover, given the serious nature of the charges against him, it is not surprising that a judge would consider Hawbaker too dangerous to release on bond.

Hawbaker also objects to the magistrate judge's reliance on United States v. Dawara , No. 19-414-1, 2020 WL 2404898, at *8 (E.D. Pa. May 12, 2020), for the proposition that the suspension of in-person legal visits was a reasonable measure necessary to prevent the spread of COVID-19 and that a pretrial detainee's "inability to meet with his attorney in person [did] not unreasonably burden his access to counsel" or amount "to a constitutional violation."

[499 F.Supp.3d 1248]

Id. Hawbaker contends that Dawara is distinguishable because the defendants in that case offered "case-by-case approval for legal visits" which are not offered by the jail. [9] at 3. This Court is not impressed with the distinction because the broader point is that, given the ongoing pandemic, criminal defendants across the country are facing challenges in meeting with their lawyers. Indeed, this Court's recent decision to extend the moratorium on jury trials until at least January 2, 2021, was due, in part, to the fact that "emergency conditions" due to the pandemic "have prevented defense counsel from meeting with their in-custody clients and have severely limited communications with those clients in general." [14] at 2. The unfortunate reality is that public health requirements have caused officials to impose harsh restrictions on many facets of daily life, especially in our jails and prisons where viral spread is particularly dangerous. Given current conditions, this Court cannot fault jail officials for limiting inmates’ attorney visits.

Finally, Hawbaker contends that he has cured the deficiencies identified by the magistrate judge in his amended complaints. As noted in the margin above, this Court has determined that the second amended complaint, [10], is now the operative complaint. Having reviewed that complaint, this Court concludes that Hawbaker has failed to state a claim for relief.

At the outset, this Court notes that the complaint is rather difficult to decipher because Hawbaker dedicates extensive discussion to matters that are plainly irrelevant such as his divorce proceedings and the fact that his estranged wife has allegedly stolen vast sums from him. As far as this Court can determine, Hawbaker raises three claims under § 1983.

First, Hawbaker claims that the Spalding County Sheriff violated his rights by issuing a press release on the eve of his bond hearing. In the press release, the sheriff quoted a letter that he sent to the governor requesting that Hawbaker be removed from his position on the Spalding County Commission. Hawbaker contends that the sheriff knew that the governor had no authority to remove Hawbaker from his commission seat and that the sheriff was motivated to issue the press release to affect the outcome of Hawbaker's bond hearing. Hawbaker contends that the press release "was a proximate, or a producing cause, of Magistrate Cavanaugh's denial of Hawbaker's bond request on February 20 and his continued detention in the Jail until his next bond hearing, also unsuccessful, on April 16, 2020." [10] ¶ 12. However, as with his claim that his inability to meet with his lawyer led to the denial of his bond, the contention that a magistrate judge was influenced in her decision to deny bond by the sheriff's press release is simply too speculative. In any event, the sheriff is certainly authorized to voice his opinion regarding whether an arrestee should be released on bond without running afoul of the arrestee's rights, and the sheriff thus cannot be liable under § 1983 for indirectly advocating against Hawbaker's release on bond.

Hawbaker next seems to raise a claim that the sheriff retaliated against him because Hawbaker did not support the sheriff during an election. The two acts of retaliation related in the complaint are that (1) the sheriff refused to allow Hawbaker's attorney to take a photograph of Hawbaker to send to Hawbaker's mother, and (2) while he was in quarantine, the approximately twenty six inmates in quarantine were not permitted to receive products from the jail commissary.

In order to state a claim for retaliation, the plaintiff must allege that he engaged in a protected act, that the retaliation adversely affected the protected

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behavior, and that there was a causal connection between the retaliation and the protected behavior. Bennett v. Hendrix , 423 F.3d 1247, 1250 (11th Cir. 2005). For the purposes of this discussion, this Court assumes that refusing to support a candidate during an election is a protected act. Hawbaker has not, however, alleged that there was a causal connection between his refusal to support the sheriff in the election and either the sheriff's refusal to permit Hawbaker to have his photograph taken or the implementation of a jail-wide policy to deny commissary purchases by inmates in quarantine. This Court is further doubtful that Hawbaker has alleged sufficient facts to state a claim of adverse effect. See id. ("[A] plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter ‘a person of ordinary firmness’ from the exercise of First Amendment rights.") (quotation and citations omitted). Neither the refusal to permit the photograph nor a two-week (at most) suspension of commissary privileges, which applies only if you happen to be quarantined, seems to be much of a deterrent.

Finally, Hawbaker re-alleges his claim regarding the limitation on in-person visits with his attorney. According to Hawbaker, jail officials implemented a policy that limits communications between inmates and their lawyers at the jail to telephone conversations, mail, and emails. In-person meetings with attorneys are permitted at the courthouse, but when the inmate returns from the meeting, the inmate must quarantine for two weeks. Quarantine consists of spending twenty-three hours a day in a cell. Hawbaker again claims that he was injured by not being able to meet with his attorney because he was denied release on bond.

Hawbaker claims that the telephone conversations, mail, and emails are not adequate substitutes for in-person meetings because, while jail officials state that communications between inmates and their lawyers are not monitored, neither Hawbaker nor his lawyer have the ability to verify that their conversations are not monitored or recorded. Hawbaker further states that he finally agreed to have a meeting with his attorney at the courthouse, but he had to undergo two weeks of quarantine after the meeting.

Having reviewed this claim, this Court concludes that Hawbaker has failed to cure the deficiencies identified by the magistrate judge. As indicated above, the pandemic is an unprecedented circumstance that has caused significant disruption for jails and prisons. Officials at those institutions must balance the need for protecting inmates and staff from infection against the rights of individual inmates. "When accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." Turner v. Safley , 482 U.S. 78, 90, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The obvious ripple effect of allowing unfettered in-person meetings between inmates and their lawyers at the jail is an increased risk of infection in a closed population of individuals where social distancing is either difficult or impossible. In allowing telephone, email, and mail communication, the jail provided reasonable alternatives, and Hawbaker's wholly unfounded suspicion that those communications are monitored is not convincing in light of officials’ statements that they are not monitored. More importantly, the jail has made available in-person meetings to those inmates who are willing to undergo a two-week quarantine, and Hawbaker has taken advantage of that opportunity. He thus cannot claim that his rights have been violated because he has been able to meet with his

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lawyer. That he had to undergo quarantine thereafter was a reasonable jail security measure to protect other inmates and staff.

Having conducted a complete and careful review of the R&R, including a de novo review of those portions of the R&R to which Hawbaker objects, the Court overrules his objections [9] and adopts as its order the R&R, [5], as supplemented herein. This case is dismissed pursuant to 28 U.S.C. § 1915A, and the Clerk is directed to close this case.

IT IS SO ORDERED this 5th day of October, 2020.