United States District Court, W.D. Arkansas, Hot Springs Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
a civil rights action filed by the Plaintiff Brian Hill,
pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable P.
K. Holmes, III, Chief United States District Judge, referred
this case to the undersigned for the purpose of making a
Report and Recommendation. Currently before the Court is
Plaintiff's Motion for Emergency Injunctive Relief (ECF
No. 6) and his Motion to Supplement Motion for Emergency
Injunctive Relief (ECF No. 10).
is currently incarcerated in the Arkansas Department of
Corrections (“ADC”) Tucker Unit. Plaintiff filed
a Motion for Emergency Injunction and Memorandum Brief in
Support of the Motion on August 18, 2017. (ECF Nos. 6, 7).
Plaintiff filed a Motion to Supplement his Motion for
Injunctive Relief on August 28, 2017, stating the Supplement
was intended to “[e]nsure the terms of the injunction
are clearly outlined and understood for the Court.”
(ECF No. 10). Plaintiff alleges he has a “hit”
out on him by the Aryan Gang, and as a result continues to be
involved in altercations with Gang members, which have
unfairly resulted in disciplinary convictions against him.
These disciplinary convictions have resulted in him losing
Inmate Class Status and have prevented him from being
released. Plaintiff alleges he has asked repeatedly to be
placed in protective custody, but has continued to be housed
in general population. (ECF Nos. 6, 7, 10). Plaintiff alleges
this has caused him “severe pain, suffering, mental
pain and suffering, irreparable harm and injury, loss of
freedom, and damage beyond repair.” (ECF No. 10 at 4).
Plaintiff seeks the following actions from the Court with
1. to be housed in protective custody at Delta Regional Unit;
2. to have his Class I or Class II status restored and be
placed on the Parole Board hearing to be released as soon as
3. to be protected from harm, threats, and any punishment by
disciplinary charges or other punishment by ADC staff;
4. to be kept separate from any known or unknown Aryan Gang
or other gang members in general population. (ECF No. 10 at
First Amended Complaint was filed on filed on October 5,
2017, in response to an Order by the Court. (ECF No. 17).
of the Federal Rules of Civil Procedures governs the issuance
of temporary restraining orders and preliminary injunctions.
In deciding a motion for a temporary restraining order or a
preliminary injunction, the courts are instructed to consider
the following factors: (1) the probability of success on the
merits; (2) the threat of irreparable harm to the movant; (3)
the balance between this harm and the injury that granting
the injunction will inflict on other interested parties; and
(4) whether the issuance of an injunction is in the public
interest. Dataphase Sys., Inc. v. C L Sys., Inc.,
640 F.2d 109, 114 (8th Cir. 1981) (en banc); see also
Minnesota Mining and Mfg. Co. v. Rauh Rubber, Inc., 130
F.3d 1305, 1307 (8th Cir. 1997); Sanborn Mfg. Co., Inc.
v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d
484, 485-86 (8th Cir. 1993). While no single factor in itself
is dispositive, the Eighth Circuit Court of Appeals has held
“the two most critical factors for a district court to
consider in determining whether to grant a preliminary
injunction are (1) the probability that plaintiff will
succeed on the merits, and (2) whether the plaintiff will
suffer irreparable harm if an injunction is not
granted.” Chicago Stadium Corp. v. Scallen,
530 F.2d 204, 206 (8th Cir. 1976). The burden of proving a
preliminary injunction is warranted rests on the movant.
Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).
Further, the Eighth Circuit has instructed that “in the
prison context, a request for injunctive relief must always
be viewed with great caution because judicial restraint is
especially called for in dealing with the complex and
intractable problems of prison administration.”
Id. (internal quotations omitted).
Probability of Success on the Merits.
Court cannot grant the specific items of injunctive relief
requested by Plaintiff. Plaintiff's claims concerning his
disciplinary charges and Class Status are barred by Heck
v. Humphrey, 512 U.S. 477 (1994). In Heck, the
Supreme Court held that a claim for damages for
"allegedly unconstitutional conviction or imprisonment,
or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid" is not
cognizable until "the conviction or sentence has been
reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized ...