United States District Court, N.D. Georgia, Gainesville Division
MAGISTRATE JUDGE'S ORDER AND SECOND NON-FINAL REPORT AND RECOMMENDATION
J. CLAY FULLER, Magistrate Judge.
Upon consideration of Plaintiff's complaint (Doc. 1), docketed on January 9, 2015, the undersigned recommended that Plaintiff's retaliation claim be allowed to proceed against Lt. Sullivan and Deputy Calderon. (Doc. 9). On March 20, the District Court adopted that recommendation; referred this matter to the undersigned for review of Plaintiff's amended complaint (Doc. 15); and reserved for later its consideration of the undersigned's recommendations to dismiss Plaintiff's claims of sexual harassment and an equal protection violation and to dismiss Defendants Capt. Woods, Sgt. Lachner and Deputies Cook and Zelinski. (Doc. 16; see Doc. 9).
In addition to his objections to the undersigned's Report and Recommendation (Doc. 14), which the District Court will review at the appropriate time, Plaintiff has filed the following pleadings:
1. a combined motion (a) to enforce the Superior Court of Hall County's order for him to serve his 12 months in custody on work release, and (b) to require that he receive mental health counseling at the Hall County Detention Center ("HCDC"), where he is currently confined (Doc. 11);
2. a motion to add Marcus Neville, the current HCDC captain, as a Defendant or to substitute him for Defendant Woods, the HCDC captain when Plaintiff filed his initial complaint, "whichever is appropriate" (Doc. 12; see Doc. 11 at 1 (alleging that Captain Neville has refused to transfer Plaintiff to a prison work camp in retaliation for Plaintiff's having "started a lawsuit against the Jail"));
3. a motion to reconsider his motion for discovery, which this Court previously denied as premature (Doc. 13; see Doc. 8); and
4. a motion (Doc. 15) for leave to file an amended complaint (Doc. 15-1).
I. Plaintiff's Amended Complaint
In his amended complaint, Plaintiff names the same six Defendants as in his initial complaint (Doc. 15-1 ¶¶ 4-9) and requests the Court's instruction as to "whether Marcus Neville should be added as a Defendant or replace Danny Woods as a Defendant" ( id. at 12). Plaintiff alleges the following additional details about his treatment by HCDC officials.
On September 3, 2014, Plaintiff was sentenced to serve one year of custodial time in the Hall County work release program. ( Id. ¶ 15). From September 9 to October 13 and from November 26 to December 21, 2014, he participated in work release. From October 13 to November 26 he was housed in the Gwinnett County Detention Center for a Gwinnett County court date. ( Id. ¶¶ 16-20, 23).
On December 18, 2014, Plaintiff returned to the HCDC from his daily work assignment and observed Officer Cook behaving erratically as he frisked returning work-release inmates, "went well beyond a routine frisk done by any other deputy, " and made comments about each inmate's penis size. ( Id. ¶ 21). "Moving to the Plaintiff, Deputy Cook again made comments about the Plaintiff's penis size while holding his genitals and  then asked Plaintiff to call him Big Daddy[, ]' and while pointing to a broken latex glove on his hand, stated, I guess you're pregnant now, Goodwin.'" ( Id. ). Cook's erratic behavior continued as he transported Plaintiff and other inmates to their cell tower. Plaintiff approached an officer to ask, "Is this guy off his medication or something?" ( Id. ). "Due to this incident of sexual abuse/harassment, Plaintiff [alleges that he] has experienced depression, sleep deprivation, embarrassment and humiliation [for] which he has sought and requested professional treatment and counseling, " but "he has received no medical help for [his] emotional and mental" problems. ( Id. ). On or about December 20, Plaintiff described Deputy Cook's actions and behavior to Officers Calderon and Zelinski. ( Id. ¶ 22).
On December 21, several deputies, including Calderon and Zelinski, made "an extreme show of force similar to a military operation" in Plaintiff's cell pod, and "Sgt. Atkins and Deputy Calderon singled the Plaintiff out to be handcuffed and taken to the intake/booking area of the" HCDC. ( Id. ¶ 25). Calderon told Plaintiff that tobacco had been found in a trash can in his cell, although Plaintiff's roommate, who shared the cell and who had access to the same trash can, was not detained or searched, as Plaintiff was. ( Id. ¶¶ 26-27). Plaintiff announced that it was "highly coincidental that [he was] being accused of having tobacco, without being shown proof, and kicked out of work release after reporting the incident with Deputy Cook." He received no response. ( Id. ¶ 28).
In the early morning hours of December 22, Plaintiff was taken to segregation, or "the hole." ( Id. ¶¶ 30-31). Later that day, to reduce his tenure there from 16 to 8 days, Plaintiff "reluctantly signed under complete duress" a "Hall County Discipline Housing Form." ( Id. ¶ 32). Plaintiff remained in the hole from December 22 to 28, 2014, with no mattress between 6 a.m. and 11 p.m. and with the "loss of privileges and quality of life in prison living conditions, and loss of the limited liberty enjoyed by prisoners." ( Id. ¶ 33). He was unable to work, attend classes, pay child support, associate with other prisoners, participate in outdoor recreation or religious services, or contact his family for Christmas. On this basis, Plaintiff raises a due process claim against Lt. Sullivan, Sgt. Lachner, and Deputies Calderon and Zelinksi, in addition to his previously stated retaliation claim. ( Id. ).
On December 29, Plaintiff was brought to the work release office, where both Sullivan and Lachner "made it clear to Plaintiff that if [he] proceeded with his civil rights complaint, he would not return to work release, for his own protection, ' and because of the [HCDC's] legal exposure.'" ( Id. ¶ 36). On December 30, internal affairs officer Lt. Dale Long reiterated Sullivan and Lachner's message and "went further by explaining to Plaintiff that he would be shipped out' to a different county" if he did not abandon his claim. ( Id. ¶ 37). For this reason, Plaintiff signed a form ...