IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

BARRY W. RAYNER )
Plaintiff, )CASE No. ____________________
)
vs. )
)
COBB COUNTY, et al. )
Defendant )

PLAINTIFF’S MOTION FOR PRESERVATION OF RECORDS

COMES NOW, Plaintiff Barry W. Rayner, pro se, and respectfully requests this Court to

issue an Order requiring the Defendants to preserve all records, including but not limited to, paper

documents, information from computer systems, removable electronic media and other locations,

relating in any way to the subject matter of this litigation. These documents and records are

described in Appendix 1attached hereto. In Support of his Motion Plaintiff states:

1 This action is claim alleging, inter alia, that each of the Defendants either participated in an

unlawful conspiracy to violate the Plaintiff’s civil rights, covered it up after the fact or failed to

intervene and prevent the violations of Plaintiff’s civil rights.

2 Document preservation orders common and routine in cases involving electronic

evidence, such as emails and other form of electronic communications. Pueblo of Laguna v. United

States, 60 Fed. C1. 133, 136 (2004). See also Capricorn Power Co., Inc. v. Siemens Westinghouse

Power Corp., 220 F.R.D. 429, 431 (W.D. Pa. 2004) (“[O]rders directing parties to preserve materials

or documents are common in circumstances in which evidence is subject to being destroyed or lost

in routine and sometimes not-so-routine deletion or destruction of information in various mediums”).

Plaintiffs ask that this Court consider an initial order that requires defendants to abide by their duty

to preserve what they know or reasonably should know will be relevant evidence.

3 The entry of a document preservation order will not in any way prejudice the
Defendants. However, the failure to enter a document preservation order may severely prejudice the

Plaintiff’s ability to prove the allegation in their case and could undermine the cause of justice by

permitting the Defendants to destroy documents of their illicit activities.

4 Plaintiff has attached as Appendix 1a list of documents that should be preserved. This

list is neither overly broad or burdensome as it seeks to preserve only those documents that may

directly relate to a claim by the Plaintiff in his above captioned Complaint or a defense to such

claims by the Defense. As such, Appendix 1 is narrowly tailored to further the cause of justice and

the ascertainment of the truth.

5 The document and records in Appendix 1 should not be destroyed absent order of this

Court regardless of Defendants’ internal policies regarding the destruction of documents in the

regular course of business.

6 The documents and records itemized in Appendix 1 includes all related and/or

resultant emails, notes, quick notes, memos, tapes, books, records, or disks in whatever form.

Respectfully Submitted,

______________________________
Barry W. Rayner
c/o
Cobb County Adult Detention Center
SOID # 001018021,
P.O. Box 100110, Marietta, GA 30061

Rayner v. Cobb County, et al. -2-

 APPENDIX 1

The following list includes all related and/or resultant emails, notes, quick notes, memos,

tapes, books, records, or disks in whatever form:

1 All records of any nature that pertains to the history of the use of the Cobb County Adult

Correctional institutional disciplinary procedures against Barry Wayne Rayner, Inmate # 001018021;

2 All video recording(s) of an incident occurring on Monday October 06, 2014, involving Barry

Wayne Rayner, Inmate # 001018021;

3 All audio recording(s) of an incident occurring on Monday October 06, 2014, involving Barry

Wayne Rayner, Inmate # 001018021;

4 All video recordings involving any of the observation cells from October 06 through October

09, 2014, in which Barry Wayne Rayner was housed.

5 Audio recording(s) of a phone calls placed by Lt. Col. Janet Prince from Cobb County Adult

Detention Center phone number 770-499-4220 to 502-693-9696 on October 13, 2014 at 3:58 p.m.

( Phone number 502-693-9696 is the phone number of Pamela Echsner, the person making this

request);

6 All communication in whatever form between Lt. Col. Janet Prince and DONALD L.

BARTLETT, Cobb County Jail Commander

7 All recorded statement(s) of Deputy Thomas McCraken if any, in connection with the

incident(s) involving Barry Wayne Rayner, Inmate #001018021;

8 All recorded statement(s) of Deputy Kevin Blakenship if any, in connection with the

incident(s) involving Barry Wayne Rayner, Inmate #001018021;

9 All recorded statement(s) of Deputy Gregory Smith if any, in connection with the incident(s)

Rayner v. Cobb County, et al. -3-

involving Barry Wayne Rayner, Inmate #001018021;

10 All recorded statement(s) of Deputy Gerald Ventre if any, in connection with the incident(s)

involving Barry Wayne Rayner, Inmate #001018021;

11 All recorded statement(s) of Deputy Tarver Mygatt if any, in connection with the incident(s)

involving Barry Wayne Rayner, Inmate #001018021;

12 All recorded statement(s) of Deputy Vincent Abbott if any, in connection with incident(s)

involving Barry Wayne Rayner, Inmate #001018021;

13 All recorded statement(s) of Sgt. William Piepmeler if any, in connection with the

incident(s) involving Barry Wayne Rayner, Inmate #001018021;

14 All recorded statement(s) of Nurse Black if any, in connection with the incident(s) involving

Barry Wayne Rayner, Inmate #001018021;

12. All reports involving disciplinary actions taken against Deputy Thomas McCraken if any, in

connection with the incident(s)involving Barry Wayne Rayner, Inmate #001018021;

13. All reports involving disciplinary actions taken against Deputy Kevin Blankenship if any, in

connection with the incident(s) involving Barry Wayne Rayner, Inmate #001018021;

14. All reports to disciplinary actions taken against Deputy G.R. Smith if any, in connection with

the incident(s) involving Barry Wayne Rayner, Inmate #001018021;

15. All reports to disciplinary actions taken against Deputy Mygatt if any, in connection with the

incident(s) involving Barry Wayne Rayner, Inmate #001018021;

16. All reports of disciplinary actions taken against Sgt.Piepmeler if any, in connection with the

incident(s) involving Barry Wayne Rayner, Inmate #001018021;

17. All reports of disciplinary actions taken against Deputy Abbott if any, in connection with the

incident(s) involving Barry Wayne Rayner, Inmate #001018021;

Rayner v. Cobb County, et al. -4-

18. All reports of disciplinary actions taken against Deputy Ventre if any, in connection with the

incident(s) involving Barry Wayne Rayner, Inmate #001018021;

19. All records generated by any investigation, whether conducted by Georgia State authorities,

Cobb County or outside third party entities, in connection with the allegations of Barry Wayne

Rayner Inmate #001018021 and the incident(s) involving Barry Wayne Rayner,;

20. All reports of disciplinary actions taken against Nurse Black if any, in connection with the

incident(s) involving Barry Wayne Rayner, Inmate #001018021;

23. All Cobb County Sheriff and Cobb County Adult Detention Center reports involving the

internal investigation of any of the allegations contained in the Civil Rights Complaint filed in the

United States District Court for the Northern District of Georgia.

Rayner v. Cobb County, et al. -5-

 IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

BARRY W. RAYNER )
Plaintiff, )CASE No. ____________________
)
vs. )
)
COBB COUNTY, et al. )
Defendant )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

EMERGENCY MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION

INTRODUCTION

This action arises from a civil action under 42 U.S.C § 1983 seeking damages and injunctive

relief against Defendants for committing acts, under color of law, with the intent and for the purpose

of depriving Plaintiff of rights secured under the Constitution and laws of the United States and the

State of Georgia; denying him necessary medical care and then assaulting him, both physically and

sexually and then drugging him repeatedly and placing naked in an isolation cell without notice or

a hearing when he availed himself the institutional grievance procedure to report the abuse.

Plaintiff's life was threatened by correctional officers for reporting an attack and sexual

assault on the Plaintiff by Cobb County Adult Detention (CCDC) correctional officers. The sexual

assault on the Plaintiff was taken to a solitary confinement cell out of retaliation for insisting that

he receive medical care during the intake process.

Plaintiff was dragged to an isolation cell assaulted and stripped of his clothing and then

sexually assaulted. Plaintiff was then assaulted multiple times and injected with drugs multiple times

over a three (3) day period and at one point forcibly clothed in garments contaminated by human
waste.

Initially, after the Plaintiff reported the attack and an investigation was initiated against the

officers involved, improper behavior on behalf of correctional officers was first informally admitted

by high ranking administrative staff, but since then a cover-up and abuse have followed .

The Defendants are now retaliating against the Plaintiff daily, threatening and endangering

his life and subjecting Plaintiff to cruel and unusual punishment in various ways every day. Plaintiff

now brings this civil rights complaint to enforce his rights secured under the Constitution of the

United States.

FACTUAL BACKGROUND

1 On October, 02, 2014, Plaintiff was stopped for a traffic violation. Uupon a routine

background check was arrested for on an outstanding warrant in Cobb County for failure to appear.

Plaintiff was subsequently booked into Atlanta City Jail and held there for approximately four (4)

days.

2 During his above referenced time in the Atlanta City Jail the Plaintiff developed an

infection in his nose (later determined to be a staph infection in his sinus) that had spread beyond

the sinuses to the bones of the face and his right eye was swollen shut. The Plaintiff began

experiencing swelling around the eyes and a fever, however, Plaintiff was transferred to the Cobb

County Jail before he could obtain treatment for his medical problems.

3 Later, on October 06, 2014, at "23:05", when the Plaintiff arrived at the Cobb County

Jail, he was in severe pain from his sinus infection. He was booked into Cobb County Jail.

Denial of Necessary Medical Service

4 While Plaintiff was still going through the booking process awaiting the routine jail medical

screening, apparently the nurse conducting the screening process went on a break just before the

Rayner v. Cobb County, et al. -7-

Petitioner could get his medical screening.

5 Plaintiff then heard a sheriff's deputy (later identified as Defendant Deputy McCracken)

announce loudly, indicating towards the area in which Plaintiff was sitting and stated, "everyone over

here is done".

6 When Plaintiff objected to not receiving a medical screening and care for his nasal infection

by notifying one of the correctional officers. At first the officer argued with the Plaintiff and ignored

him.

7 But later, after the Plaintiff was proven right the officer became agitated after thereafter

conspired with several other correctional officer to remove the Plaintiff to isolation cells, where he

was forcibly stripped of his clothing in front of female officers and then sexually assaulted by

slapping him on his buttocks and probing his buttocks with a flashlight in a sexual manner. Plaintiff

was then left naked ion a cell because he was given only dirty clothes to wear that smelled strongly

of human waste.

8 After the Plaintiff began complaining loudly and asking for help and a grievance form the

Plaintiff was repeatedly physically assaulted and drugged repeatedly.

9 Later, after many hours in isolation Plaintiff was able to speak with a high ranking

correctional officer about the physical and sexual assaults and made a report and was released into

general population.

10 However, after only approximately an hour in general population Plaintiff was inexplicably

removed by two (2) correctional officers from general population, threatened with physical harm for

reporting the sexual assaults and marched right back into the isolation cell where he was again

Rayner v. Cobb County, et al. -8-

assaulted, forcibly stripped naked, given dirty clothes to wear soiled in human waste and then

drugged heavily.

11 When the Plaintiff’s mother filed an Open Records Request to Deena Fincher, Cobb County

Records Custodian, Plaintiff’s mother received documents that show that the Plaintiff was placed

in an isolation cells for no specific reason and then assaulted for simply objecting to be embarrassed

in front of the female staff by taking off his clothes. (See See Deena Fincher's email response to

Open Record’s Request, including attachments, attached hereto as Exhibit A)

12 After the Plaintiff was again moved back to general population Plaintiff was denied the right

to avail the institutional grievance procedure. Plaintiff was denied grievance forms unless the

Plaintiff disclosed why he wanted the forms. If the Plaintiff did not state what the grievance

concerned he is denied access to grievance forms.

13 Plaintiff has been subjected to a variety of arbitrary punishments since he reported the sexual

assault. When correctional officials learned of the pending allegations stemming from the incident,

they began to initiate bogus disciplinary charges and would not tell the Plaintiff the nature of the

charges .

14 The same officer who wrote disciplinary charge would be the same disciplinary officer to

hold an impromptu hearing without the Plaintiff present, conclude that the he was guilty of

disciplinary infractions and then punish the Plaintiff by denying him commissary, phone and

visitation privileges.

15 On multiple occasions when the Plaintiff refused an order perform manual labor as a pre-trial

detainee the correctional staff would impose mass punishments on the entire prison dormitory in an

Rayner v. Cobb County, et al. -9-

effort to get the someone to assault the Plaintiff, announcing that the Plaintiff was responsible for

the mass punishments. In this way the Plaintiff is constantly put into strife and subject to assaults

by other inmates and forced to fight to defend himself and placed in imminent danger.

Argument

This Court Should Enjoin Cobb County and its Agents from Retaliating against the
Plaintiff, Blocking Communication with the Courts and with his Family and Otherwise
Denying him Due Process

16 To succeed on a motion for emergency injunctive relief pending appeal, the moving party

must satisfy the same factors necessary to prevail on a motion for preliminary injunctive relief before

a district court.

17 A district court may grant injunctive relief only if the moving party shows that: (1) it has a

substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the

injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed

injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to

the public interest. See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (citing

All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)).

In this Circuit, "[a] preliminary injunction is an extraordinary and drastic remedy not to be granted

unless the movant clearly established the 'burden of persuasion'" as to each of the four prerequisites.

Id. (internal citation omitted); see also Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975)

(grant of preliminary injunction "is the exception rather than the rule," and plaintiff must clearly

carry the burden of persuasion).

Rayner v. Cobb County, et al. - 10 -

 Plaintiff Faces Irreparable Harm in the Absence of a Preliminary Injunction

18 Because Plaintiff confront the continuing and imminent risk, the Plaintiff has presented this

Court with documents received from the Defendants that show clearly that the Plaintiff was

arbitrarily placed into a punitive detention cell for no stated reason whatsoever and then assaulted

merely for objecting to being humiliated.

19 Plaintiff has also averred that he was physically and sexually assaulted, that it was

investigated by Cobb County Adult Detention Center officials and confirmed that there was wrong

doing.

20 The Plaintiff has also provided this Court documents relating to an open records request that

show the Defendants are clearly attempting to cover-up evidence of their wrong doing by blocking

his Open Records Requests and then threatening to throw him down the stairs.

21 A showing of irreparable injury is "'the sine qua non of injunctive relief.'" Northeastern Fla.

Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.

1990) (quoting Frejlach v. Butler, 573 F.2d 1026, 1027 (8th Cir. 1978)); see also Doran v. Salem Inn,

Inc., 422 U.S. 922, 931, 95 S. Ct. 2561, 2568 (1975) ("The traditional standard for granting a

preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer

irreparable injury."); Robertson, 147 F.3d at 1306 (plaintiff must show "irreparable injury will be

suffered"); Harris Corp., 691 F.2d at 1356-57 (concluding that district court "did not abuse its

discretion in finding a substantial likelihood of irreparable injury to [the plaintiff] absent an

injunction"); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (to

be granted a preliminary injunction plaintiffs must show "a substantial likelihood that they would

Rayner v. Cobb County, et al. - 11 -

suffer irreparable injury").

22 In order to prevail on an Eighth Amendment challenge, Plaintiff must demonstrate that the

State is being deliberately indifferent to a condition that poses a substantial risk of serious harm to

him. Indeed, where an Eighth Amendment cruel and unusual punishment claim alleges the risk of

future harm, “the conditions presenting the risk must be ‘ sure or very likely to cause serious illness

and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’”

Baze v. Rees, 553 U.S. 35 at 50 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)).

23 Plaintiff has demonstrated both a substantial threat of continuing irreparable harm and a

strong likelihood of success on the merits.

Injunctive Relief Will Not Harm Third Parties and the Public Interest Favors the
Requested Emergency Injunctive Relief.

24 This Court's granting of Plaintiff emergency injunctive relief pending a more formal hearing

on the issue or during pendency of the above captioned complaint will not harm neither the

Defendants nor third parties. First, such relief will not impair Cobb County Detention Center's ability

to continue to operate the jail or otherwise impede the safe operations of the jail, In fact, it will

reinforce and emphasize the oath and duty of Cobb County jailer and be in Cobb County Jail’s

interest in maintaining order and security by treating humanely prisoners who may be brought to the

jail, pursuant to OCGA 42-4-2.

There is a Strong Public Interest in Granting Petitioners’ Motion

25 A nationwide heightened scrutiny over allegations of widespread abuse of jail inmates and

misconduct has resulted in hundreds of millions of dollars in settlements, judgments and legal fees

and in the interest of the professional operation and administration of jails in the State of Georgia

Rayner v. Cobb County, et al. - 12 -

26 It is well established that there is a strong public interest in favor of the enforcement of public

laws and regulations concerning the operation of jails. O.C.G.A Sec. 351.001. DUTY TO

PROVIDE JAILS; LOCATION. (a) The commissioners court of a county shall provide safe and

suitable jails for the county.

______________________________
Barry W. Rayner
c/o
Cobb County Adult Detention Center
SOID # 001018021,
P.O. Box 100110,
Marietta, GA 30061

Rayner v. Cobb County, et al. - 13 -

 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA

BARRY W. RAYNER )
Plaintiff, )CASE No. ___________________
)
vs. )
)
COBB COUNTY, et al. )
Defendant )

ORDER

This matter came before the Court on Plaintiff’s motion for preservation of the

records. Upon due consideration of the pleadings and the circumstance the Court finds that there is

there is sufficient grounds to issue an order for preservation of the records .

Accordingly, plaintiff’s motion for preservation of records is hereby GRANTED.

______________________________

United States District Court Judge

SO ORDERED.

This the _____ day of _________________, 2015.

 CERTIFICATE OF SERVICE

It is hereby certified that a true and correct copy of the foregoing Plaintiff’s Emergency

Motion for Temporary Restraining Order and Preliminary Injunction and Memorandum in Support

, has been delivered to the Defendants by placing same in the U.S. Mail/hand-delivered on the

day of February, 2015, addressed to:

Deborah L. Dance
Cobb County Attorney's Office
100 Cherokee Street, Suite 350
Marietta, GA 30090-9689

Rayner v. Cobb County, et al. - 15 -