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Rodriguez v. White

United States District Court, M.D. Georgia, Macon Division

November 2, 2017

HJALMAR RODRIGUEZ, Jr., Plaintiff,
v.
JAMES WHITE, et al., Defendants.

         Proceedings Under 42 U.S.C. §1983

         Before the U.S. Magistrate Judge

          REPORT AND RECOMMENDATION

          Charles H. Weigle United States Magistrate Judge

         A prior Report and Recommendation pending before the Court concludes that Plaintiff failed to state a claim for relief under the Equal Protection Clause because Plaintiff failed to allege facts showing that he was treated differently from similarly situated prisoners. (Doc. 89, pp. 16-18). In light of limitations concerns, however, Plaintiff was granted leave to file a fourth amended complaint in order to cure his deficient equal protection claim. Plaintiff has since filed a Fourth Amended Complaint. (Doc. 95).

         The Defendants have now filed a Motion to Dismiss Plaintiff's Fourth Amended Complaint. (Doc. 98). It is RECOMMENDED that the Defendants' Motion to Dismiss be GRANTED as to Plaintiff's equal protection claim.[1]

         A. Strip Search Equal Protection Claim

         As set out in the prior Report and Recommendation, Plaintiff's equal protection arguments have changed over time. The Court initially allowed Plaintiff to proceed on an equal protection claim based on arguments relating to strip searches. Upon screening pursuant to 28 U.S.C. § 1915A, the Court rejected a recommendation to dismiss Plaintiff's equal protection claim as frivolous, and instead allowed Plaintiff to proceed with a claim for relief based on the following allegations:

(20) Plaintiff remain[e]d in this cell under guard by a (C.E.R.T. officer) for several hours, when on or about 8:00 a.m. Defendant(s) Doe(s), White and Lando came back to Plaintiff and d[ue] to retail[a]tory motives, unlike other similarly situated prisoners, but only d[ue] to the fact Plaintiff is a Muslim and spoke up against being strip searched; Defendants forced Plaintiff to be subjected to being strip searched again, being forced to bend over, having his backside re-examined again. Plaintiff being threatened by Defendant Doe(s) and Lando that if he did not remove his cloth[e]s, that he would be physically stripped.

(Doc. 9-1, p. 9; Doc. 16, p. 3)

         Defendants subsequently moved to dismiss Plaintiff's third amended complaint, arguing that Plaintiff's allegations included no non-conclusory facts showing that similarly situated prisoners received more favorable treatment. A pending Recommendation on that motion to dismiss (Doc. 89), observes that Plaintiff did not allege adequate facts to show that that non-Muslim inmates received more favorable treatment with regard to strip searches. Due to statute of limitations concerns, however, the Recommendation gave Plaintiff an opportunity to amend his complaint one more time, to supplement the deficiency in his pleadings.

         Plaintiff's Fourth Amended Complaint does not allege any additional facts regarding the strip searches, but rather adds further details regarding claims that Defendants confiscated his “legal papers” prior to a court appearance. In response to Defendants' latest Motion to Dismiss, Plaintiff states that he “abandoned his equal protection [claim] regarding the strip searches … and converted it into his access to court claim.” (Doc. 100, p. 2).Because Plaintiff has expressed a clear intent to abandon his strip search equal protection claim, it is RECOMMENDED that the Defendants' Motion to Dismiss be GRANTED, and that Plaintiff's equal protection claim related to strip searches be DISMISSED.

         B. Legal Paper Equal Protection Claim

          Plaintiff now argues that his Fourth Amended Complaint was intended to add an equal protection claim based on the wrongful withholding of legal papers during his January 23, 2015 preliminary criminal proceeding. Plaintiff's previous complaints stated the facts related to this proceeding in context of a claim for denial of access to courts. In his Fourth Amended Complaint, Plaintiff adds the following factual allegations:

[U]nlike other similarly situated persons that [were] at Court that day (i.e. seven other inmates, wherefore possessing legal documents, was also present at Court that day), which said persons was plaintiff's co-defendants evidently, because it (hearing) ...

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