United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge
the Court is the Report and Recommendation filed on May 29,
2018, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 49). Judge Bryant recommends that the Court deny
Plaintiff Clifton Orlando Solomon's Motion for Temporary
Restraining Order and Preliminary Injunction. (ECF No. 37).
Plaintiff filed objections. (ECF No. 53). The Court finds the
matter ripe for consideration.
January 4, 2018, Plaintiff filed this action pursuant to 42
U.S.C. § 1983. Plaintiff alleges that Defendants
violated his constitutional rights while he was incarcerated
at the Miller County Detention Center (“MCDC”).
In relevant part, Plaintiff alleges that Defendant Campbell
threatened him and placed him in lockdown without
11, 2018, Plaintiff filed a motion for injunctive relief,
requesting that Defendant Campbell be removed from his
position at the MCDC until Plaintiff is either released or
transferred to the Arkansas Department of Correction
(“ADC”). Plaintiff states that he lives in fear
of his life due to Defendant Campbell's offensive words
toward him. On May 22, 2018, Defendants responded to the
motion, arguing that Plaintiff failed to demonstrate the need
for injunctive relief. On May 29, 2018, Judge Bryant issued
the instant Report and Recommendation. Judge Bryant
recommends that the Court deny Plaintiff's motion for
injunctive relief. Specifically, Judge Bryant finds that
Plaintiff failed to show that he would be irreparably harmed
without injunctive relief, that the Court is unable to
determine Plaintiff's likelihood of success on the merits
at this stage,  that granting injunctive relief would harm
Defendants by directly interfering with the MCDC's prison
operation and administration, and that the public interest
would not be served by granting injunctive relief. Judge
Bryant concluded that the Court should deny Plaintiff's
motion. On June 4, 2018, Plaintiff filed objections to the
Report and Recommendation.
to 28 U.S.C. § 646(b)(1), the Court will conduct a
de novo review of all issues related to
Plaintiff's specific objections. Plaintiff objects to the
Report and Recommendation's finding that he has not
demonstrated that he is likely to succeed on the merits.
Plaintiff states that Defendant Campbell was reprimanded by
the MCDC for using “abusive language.” Plaintiff
attaches to his objections a December 29, 2017, reprimand
form indicating that Defendant Campbell was placed on
disciplinary probation for the “use of offensive words
or actions toward an offender.” (ECF No. 53). Plaintiff
also attaches to his objections an excerpt from
interrogatories that he propounded on Defendants, in which
Defendants stated, “It was found that Officer Campbell
used offensive language, but that there was no threat.”
(ECF No. 53). Plaintiff argues that Defendant Campbell
violated an official custom or policy of the MCDC by using
abusive language toward him, which demonstrates that he is
likely to succeed on the merits of his claims against
Defendant Campbell. Plaintiff concludes that the Court should
grant the requested injunctive relief.
Court finds Plaintiff's objections unpersuasive.
Plaintiff proceeds against Defendant Campbell in both his
individual and official capacites. The Court will first
address Plaintiff's likelihood of success on the merits
of his individual capacity claim, and then the Court will
address the official capacity claim.
crux of Plaintiff's argument is that he will succeed on
the merits of his section 1983 claim against Defendant
Campbell because Defendant Campbell violated an MCDC policy
prohibiting the use of offensive language against inmates.
“[A]n internal jail policy or procedure does not create
a constitutional right, nor does a correctional
official's failure to follow such a regulation rise to
the level of a § 1983 claim.” Brown v. Boone
Cnty., No. 5:13-cv-3065-TLB, 2014 WL 4405433, at *5
(W.D. Ark. Sept. 5, 2014) (citing Kennedy v.
Blankenship, 100 F.3d 640, 643 (8th Cir. 1996)). Thus,
the likelihood of Plaintiff's success depends on whether
Defendant Campbell's allegedly abusive language violated
an established constitutional right. Judge Bryant correctly
notes that verbal threats, name calling, or the use of
offensive language generally do not state a cognizable claim
under section 1983. See, e.g., McDowell v.
Jones, 990 F.2d 433, 434 (8th Cir. 1993) (finding an
inmate's claims of general harassment and of verbal
harassment were not actionable under section 1983);
O'Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir.
1987) (stating that verbal threats and abuse by jail
officials did not rise to the level of a constitutional
violation); Martin v. Sargent, 780 F.2d 1334, 1339
(8th Cir. 1985) (finding that an inmate being called an
obscene name and threatened with adverse action did not state
a claim of constitutional dimension).
alleges only that Defendant Campbell used abusive language
toward him, which causes him to live in fear for his life.
This alone is unlikely to state a cognizable claim under
section 1983. Therefore, the Court cannot find at this time
that Plaintiff is likely to succeed on the merits of his
individual capacity claim against Defendant Campbell for
official capacity claim against Defendant Campbell for
abusive language is unlikely to fare much better. To succeed
on his official capacity claim against Defendant Campbell,
Plaintiff “must show that a constitutional violation
was committed pursuant to an official custom, policy, or
practice of the governmental entity.” Moyle v.
Anderson, 571 F.3d 814, 817 (8th Cir. 2009) (citation
omitted). Plaintiff does not appear to allege that Defendant
Campbell used abusive language pursuant to an official
custom, policy, or practice of Miller County. To the
contrary, he argues that Defendant Campbell's allegedly
abusive language violated the MCDC's policies prohibiting
such behavior. In light of this allegation, the Court cannot
find at this time that Plaintiff is likely to succeed on the
merits of his official capacity claim against Defendant
Campbell for abusive language.
assuming arguendo that Plaintiff showed that he is
likely to succeed on the merits of his claims against
Defendant Campbell, the Court finds that injunctive relief is
still not warranted. As Judge Bryant discussed in his Report
and Recommendation, the determination of whether a
preliminary injunction is warranted involves consideration
of: “(1) the threat of irreparable harm to the movant;
(2) the state of balance between this harm and the injury
that granting the injunction will inflict on other parties .
. .; (3) the probability that [the] movant will succeed on
the merits; and (4) the public interest.” Dataphase
Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th
Cir. 1981). Although no single factor is dispositive,
“the most critical factors . . . in determining whether
to grant a preliminary injunction are (1) the probability
that plaintiff will succeed on the merits, and (2) whether
the [movant] will suffer irreparable harm if an injunction is
not granted.” Chi. Stadium Corp. v. Scallen,
530 F.2d 204, 206 (8th Cir. 1976). “The burden of
proving that a preliminary injunction should be issued rests
entirely with the movant.” Goff v. Harper, 60
F.3d 518, 520 (8th Cir. 1995).
Bryant found that Plaintiff failed to show that he would
suffer irreparable harm without an injunction, that granting
injunctive relief would harm Defendants by interfering with
the MCDC's prison operations and administration, and that
the public interest would not be served through an
injunction. Plaintiff's motion for injunctive relief and
his objections to the instant Report and Recommendation do
not discuss any of these other three Dataphase
factors, nor does he argue that he satisfies them.
consideration, the Court agrees with Judge Bryant that these
three Dataphase factors weigh against issuing
injunctive relief. Accordingly, the Court finds that the
balance of the Dataphase factors weighs against
granting Plaintiff's motion for injunctive relief. In
addition, Plaintiff's “[f]ailure to show
irreparable harm is an independently sufficient ground upon
which to deny a preliminary injunction.” Watkins
Inc. v. Lewis, 346 F.3d ...