Federal judge recommends dismissal of Hawbaker lawsuit against Sheriff and jail administration

Donald F Hawbaker

Don Hawbaker Feb. 4, 2020, booking photo courtesy of the Spalding County Sheriff’s Office

SHEILA A. MATHEWS :::

Don Hawbaker, the Spalding County commissioner who has been held without bond in the Spalding County Jail since his Feb. 4, 2020 arrest, has filed a lawsuit against Spalding County Sheriff Darrell Dix, Maj. Robert Sowell and Capt. Kyle Phillips. Sowell is the jail administrator and Phillips is the assistant jail administrator.

In a Prisoner Civil Rights Complaint filed July 2 in the U.S. District Court for the Northern District of Georgia, Hawbaker contends he has been denied his 6th Amendment right to effective legal counsel.

Hawbaker alleges that Dix, Sowell and Phillips have since March 15 denied him “contact access” with his criminal defense attorney, Lee Sexton.

“Although Defendants purport to make ‘access’ available via telephone and email, plaintiff has no assurance – none – that communication with his counsel is not recorded, not monitored or otherwise not accessed by Defendants, the prosecutor (Elizabeth Presley) or other jail personnel, infringing upon Plaintiff’s attorney-client privileged communication protections,” Hawbaker said, who further contends that this has “in all reasonable likelihood caused Plaintiff to be held, without bail, in jail for many additional days than he otherwise would have been held.”

Hawbaker further contends “there is no ‘pandemic’ exception to Plaintiff’s constitutional rights.”

With regard to damages he attributes to “loss of liberty,” Hawbaker seeks compensation of $1 million per day since March 13, or alternatively since April 16 – although the significance of the second date was not specified – through the date of his release from pretrial detention.

He seeks $100 million in punitive damages individually from Dix, whom he claims has, in particular, “infringed upon his rights maliciously, publicly and with personal hostility not displayed towards other inmates or alleged criminals.”
As evidence of this allegation against Dix, Hawbaker cited a Feb. 19 letter the Sheriff submitted to Governor Brian Kemp.

In that letter, in which Dix requested Kemp immediately remove Hawbaker from office as the Spalding County Board of Commissioners District 5 representative, the Sheriff described Hawbaker as “a threat to the community,” “a menace to society” and said his actions “are worse than the actions of a gang member.”

Dix went on to say, “I am asking that you, in your capacity as Governor of the great state of Georgia, take steps to remove Donald Hawbaker from his position as a Spalding County Commissioner as soon as possible. He has violated the trust of the people and violated the law in the most egregious ways imaginable.”

Statutorily, Kemp cannot initiate the process that could result in Hawbaker’s removal from office prior to an indictment by a grand jury, which still has not occurred.

Dix adamantly denies all aspects of the complaint, including the allegation that he has behaved with personal hostility towards Hawbaker.

“I can’t comment on pending litigation other than to say he’s just like any other inmate and he’s doing what inmates do,” Dix said. “I can say he’s not treated any differently than any other inmate in our jail.”
When asked if that means no Spalding County Jail prisoners have been permitted in-person contact with legal counsel, Dix said, “Right, right, but we do have mechanisms in place where they are allowed to meet with their attorneys via video and other means any time they want to.”
He then denied monitoring those inmate-attorney communications.

“No, they are not. The communications between inmates and their legal counsel are not monitored. They are exempt from being monitored and are confidential.”

Hawbaker said he also anticipates filing an amended complaint for a separate claim alleging he has been deprived access to the courts.

Prior to filing this Prisoner Civil Rights Complaint, he first sought relief through an internal grievance process that according to Hawbaker was denied.

United States Magistrate Judge Russell G. Vineyard on July 28 recommended Hawbaker’s suit be dismissed for failure to state a claim.

Vineyard stated in part, “However, plaintiff has ‘shown neither irreparable harm nor prejudice’ from the suspension of in-person visits with counsel.’”

He went on the cite case law – United States v. Dawara – stating, “that the suspension of in-person legal visits was a reasonable measure necessary to prevent the spread of COVID-19 and that pretrial detainee’s ‘inability to meet with his attorney in person [did] not unreasonable burden his access to counsel’ or amount ‘to a constitutional violation.’”

Hawbaker is accused of simple assault under the Georgia Family Violence Act related to an incident involving his wife, Gayle Hawbaker, three counts of disorderly conduct pertaining to alleged cursing during phone conversations with Spalding County Sheriff’s Office employees and four counts of aggravated assault against a law enforcement officer.

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