United States District Court, W.D. Arkansas, Texarkana Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE.
a civil rights action filed by Plaintiff, Michael Phillips,
pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable
Susan O. Hickey, 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 a Court Order for Allergy Skin
Testing Analysis. (ECF No. 15). Defendants filed a Response
in opposition to the motion. (ECF No. 16).
is currently incarcerated in the Arkansas Department of
Correction (“ADC”) Ester Unit (“EU”).
Plaintiff filed his initial Complaint on June 12, 2018, in
the Eastern District of Arkansas. (ECF No. 2). The following
day, the case was transferred to the Western District,
Texarkana Division. (ECF No. 4). Plaintiff has named
Hempstead County, Arkansas, Sheriff James Singleton and
Captain Johnny Godbolt as Defendants in this action.
Plaintiff claims he was exposed to black mold while he was
incarcerated in the Hempstead County Detention Center between
February 17, 2018 and April 19, 2018, which caused him
“to experience headaches, high blood pressure, [cough]
up blood, and developed a fungus as well as sores on the top
of his head”. (ECF No. 2, p. 5).
filed the instant motion on August 27, 2018, asking the Court
to “issue a court order for him to receive an IGE
(ImmunogloBuline) Allergy Skin Test Analysis and that the
results be filed with the Court.” (ECF No. 15, p. 2).
The Court interprets Plaintiff's request as a motion for
a preliminary injunction. Defendants filed a Response to
Plaintiff's motion arguing he is not entitled to a
preliminary injunction because Plaintiff does not specify how
the allergy skin test is relevant to this lawsuit against the
Defendants nor does he allege facts to support a conclusion
that he is in immediate danger of irreparable harm. (ECF No.
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 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).
seeks a preliminary injunction ordering that he receive skin
allergy testing. As noted above, Plaintiff is currently
held by the ADC. He has not sued the ADC nor named any
employee or official of the ADC as a defendant in this
lawsuit. His request is for the Court to order a non-party,
the ADC, to take affirmative action. A nonparty may be
enjoined under Rule 65(d) only when its interests closely
“identify with” those of the defendant, when the
nonparty and defendant stand in “privity, ” or
when the defendant “represents” or
“controls” the nonparty. See Chase National
Bank v. City of Norwalk, 291 U.S. 431, 436-37 (1934);
Kean v. Hurley, 179 F.2d 888, 890 (8th Cir. 1950).
Here, there is no allegation the ADC is “closely
identified with”, or is “in privity” with
the named Defendants. Nor is there any allegation the named
Defendants “represent” or “control”
the ADC. For this reason alone, the request for preliminary
injunction should be denied.
assuming, the ADC were in privity with or controlled by the
named Defendants, as set forth below, Plaintiff is not
entitled to injunctive relief under Dataphase.
Success on the Merits
the State takes a person into its custody and holds him there
against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his
safety and general well-being.” County of
Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (citation
omitted). The Constitution does not mandate comfortable
prisons, but neither does it permit inhumane ones. See
Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Cruel
and Unusual Punishment Clause of the Eighth Amendment forbids
conditions that involve the “wanton and unnecessary
infliction of pain, ” or are “grossly
disproportionate to the severity of the crime.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
prisoner alleging an Eighth Amendment violation must prove
both an objective and subjective element. See Revels v.
Vincenz, 382 F.3d 870, 875 (8th Cir. 2004) (citing
Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “The
defendant's conduct must objectively rise to the level of
a constitutional violation by depriving the plaintiff of the
minimal civilized measure of life's necessities. The
defendant's conduct must also reflect a subjective state
of mind evincing deliberate indifference to the health or
safety of the prisoner.” Revels, 382 F.3d at
875 (citations and internal quotation marks omitted).
Deliberate indifference is established when the plaintiff
shows “the defendant was substantially aware of but
disregarded an excessive risk to inmate health or
safety.” Revels, 382 F.3d at 875. However,
courts are not concerned with de minimis levels of
imposition on inmates. See Bell v. Wolfish, 441 U.S.
520, 535 (1979).
Plaintiff alleges was exposed to black mold for a period of
approximately two months in the Hempstead County Detention
Center. He also claims Defendants were aware of the mold and
“did nothing more than paint over the problem, only for
it to grow back through the paint”. (ECF No. 2, p. 5).
Defendants filed their answer denying Plaintiff's
allegations. (ECF No. 12). Therefore, at least at this
juncture, the Court finds ...