United States District Court, W.D. Arkansas, Texarkana Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE
Jimmie Cole filed this 42 U.S.C. § 1983 action pro
se on January 29, 2019. (ECF No. 1). Pursuant to the
provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the
Honorable Susan O. Hickey, Chief United States District
Judge, referred this case to the undersigned for the purpose
of making a Report and Recommendation. Before the Court is
Plaintiff's Motion for Restraining Order. (ECF No. 8).
Defendant has filed a Response in opposition to the motion.
(ECF No. 12).
is currently being held in the Miller County Detention Center
(“MCDC”) awaiting trial on pending criminal
charges. Plaintiff's Complaint alleges in part that his
constitutional rights were violated when Defendant Corporal
Henderson used excessive force against him on January 23,
2019. (ECF No. 1, pp. 5-6). On February 8, 2019, Plaintiff
filed the instant motion for a restraining order stating
“I need A restrainng [sic] order on Corporal Henderson
for safety in Jail. I do not Like Being Around him in Max E I
do not Like for him Being Around MY food.” (ECF No. 8).
Henderson filed his Response arguing Plaintiff's motion
should be denied because “not liking someone being
around is not sufficient”, Defendant Henderson does not
have the authority to change the schedule and duties assigned
to him, it would be a burden to the MCDC to schedule its
employees based on whether inmates like or dislike certain
employees, and Plaintiff has failed to exhaust his
administrative remedies with respect to the motion. (ECF No.
of the Federal Rules of Civil Procedure 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 granting the
injunction will inflict on other interested parties; and (4)
whether the issuance of an injunction is in the public
interest. Dataphase Systems, Inc. v. C. L. Systems,
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).
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). In addition, 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
asks this Court to issue a restraining order, presumably
removing Defendant Henderson from where Plaintiff is being
detained in Max E, “for safety in jail”.
Plaintiff goes on to state he does not like being around
Henderson and “I do not like for him being around my
food.” (ECF No. 8). The Dataphase factors do
not support such drastic injunctive relief in this case.
Plaintiff alleges Defendant Henderson used excessive force
against him on January 23, 2019, when “Cpl. Henderson
(shadow) came right back on the 23rd day of Jan.
Knowing that he couldn't & shoudlt put anybody in the
cell with me, He slam's my foot & leg & arm in
the door then kicked me back into the cell after spraying me
directly in the face with the (mace)…” (ECF No.
1, p. 5). Defendant Henderson filed his Answer on February
13, 2019, denying the allegations against him. (ECF No. 11).
Defendant also asserts various affirmative defenses claiming
in part that Plaintiff caused any injuries he may have
suffered. Id.at p. 3.
evaluation of excessive force claims brought by pre-trial
detainees, although grounded in the Fifth and Fourteenth
Amendments, rely on the same objective reasonableness
standard as arrestee claims grounded in the Fourth Amendment.
Andrews v. Neer, 253 F.3d 1052, 1060 (8th Cir. 2001)
(citing Schoemehl, 878 F.2d at 1048-9). The use of
force must be necessary to some legitimate institutional
interest such as safety, security, or efficiency, and the
force used must not be in excess of that reasonably believed
necessary to achieve those goals. See Schoemehl, 878
F.2d at 1048. The relevant inquiry being whether the
officials acted in an objectively reasonable manner in light
of the facts and circumstances confronting them without
regard to their underlying intent or motivation. See
Graham v. Connor, 490 U.S. 386, 397 (1989). The Court
should consider the reasonableness “from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Id. at
396. Finally, the Court should consider whether the totality
of the circumstances justifies the use of force. Foster
v. Metropolitan Airports Comm'n, 914 F.2d 1076, 1081
(8th Cir. 1990). At this stage of the litigation the Court is
unable to determine, what, if any, likelihood Plaintiff has
of prevailing on the merits of his claims.
Plaintiff has not demonstrated he will suffer any irreparable
harm if his injunctive relief is denied. Plaintiff's
claim that he does not like being around Defendant Henderson
is insufficient to establish irreparable injury. Without a
finding of irreparable injury, a preliminary injunction
should not be issued. Modern Computer Sys., Inc. v.
Modern Banking Sys., Inc., 871 F.2d 734, 738
(8th Cir. 1989) (en banc).
the Court must balance the harm and injury to Defendant if an
injunction is granted and assess whether the issuance of an
injunction would be in the public interest. In assessing the
public interest, it must be remembered that “federal
courts do not sit to supervise state prisons, the
administration of which is of acute interest to the
States.” Meachum v. Fano, 427 U.S. 215, 229
(1976). Granting injunctive relief at this point would amount
to direct interference by the Court with the operation and
administration of the MCDC which is harmful to Defendant and
the detention center and does not serve any public interest.
As noted above, the Court should grant injunctive relief only