Scharnhorst v. Cantrell

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLEDIVISION

JOHN WILLIAM SCHARNHORST, III PLAINTIFF

v. Civil No. 5:22-CV-05176

CHIEF DEPUTY JAY CANTRELL, Washington County

Detention Center (WCDC); MAJOR RANDALL DENZER,

WCDC; CORPORAL TOM MULVANEY, WCDC;

CORPORAL SAM CAUDLE, WCDC; DEPUTY TYLER BECK,

WCDC; DEPUTY PHIPPS, WCDC; DEPUTY RAINES, WCDC;

SERGEANT WELCHEL, WCDC; CORPORAL CARPENTER, WCDC;

DEPUTY MISENHIMER, WCDC; DEPUTY SELF, WCDC;

CORPORAL DOMINIC NUNZIATO, WCDC;

DEPUTY LEEN, WCDC; DEPUTY REDMOND, WCDC;

DEPUTY FRYE, WCDC; DEPUTY EDGE, WCDC;

CORPORAL KRADDUCK, WCDC; and

DEPUTY NUNZIATO (FIRST NAME UNKNOWN), WCDC, Sgt. DEFENDANTS

Pineda

REPORT AND RECOMMENDATION

John William Scharnhorst, III, filed the above-captioned civil rights action pro se pursuant

to 42 U.S.C. § 1983, alleging Defendants are endangering his health and violating his

constitutionally protected rights by failing to comply with COVID-19 protocols at the Washington

County Detention Center (WCDC) (ECF No. 1). Citing deficiencies with his original complaint

and in forma pauperis (IFP) application, this Court initially directed Plaintiff to file an amended

complaint and provide a copy of his certificate of inmate account. (ECF No. 3). Following an

extension of time, (ECF No. 6), Plaintiff subsequently submitted the requested financial

information, (ECF No. 8) and filed an amended complaint, (ECF No. 7) – both of which have been

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addressed in separate orders. (ECF Nos. 10, 13). Before the Court are Plaintiff’s three motions

for emergency injunctive relief. (ECF Nos. 5, 9 and 14). For reasons set forth below, the

undersigned recommends Plaintiff’s motions be denied.

I. BACKGROUND

In his first request for an emergency preliminary injunction on September 12, 2022,

Plaintiff voices his concern over WCDC’s response to COVID-19 cases at the detention center

and requests an order requiring the Department of Health to intervene and “provide oversight and

instruction to Major Denzer, all of the lieutenants, sergeants, corporals and first-class deputies on

effective disease control methodology.” (ECF No. 5). In his second motion for injunctive relief

filed on September 19, 2022, Plaintiff requests Defendants “be ordered to provide plaintiff [] with

pencils or other writing implement sufficient to allow for adequate legal research and motion

composition.” (ECF No. 9). Plaintiff therein explains that he requires more than the one, 3-inch

pencil the WCDC provides him each week because he engages in a significant amount of research,

writing, and correspondence involving his litigation in this district along with his state criminal

case. Plaintiff’s third motion for injunctive relief, filed on September 23, 2022, requests an order

directing WCDC staff to enforce and comply with COVID-19 prevention policies, including

requiring the deputies and medical personnel to wear N-95 masks within WCDC. (ECF No. 14).

II. LEGAL STANDARD

Rule 65 of the Federal Rules of Civil Procedure governs requests for injunctive relief.

Federal courts may issue an order for a temporary restraining order (TRO) without first hearing

from all parties only if “specific facts in an affidavit or a verified complaint clearly show that

immediate and irreparable injury, loss, or damage will result to the movant before the adverse party

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can be heard in opposition.” Fed. R. Civ. P. 65(b)(1). By contrast, courts may issue preliminary

injunctions only on notice to the adverse party. Fed. R. Civ. P. 65(a). Courts apply the same legal

standard for issuing a TRO or preliminary injunction. See S. B. McLaughlin & Co., Ltd. V. Tudor

Oaks Condominium Project, 877 F.2d 707, 708 (8th Cir. 1989). Required considerations include:

“(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm

and the injury that granting the injunction will inflict on other interested parties; (3) the probability

that 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).

Here, Plaintiff filed his motions for injunctive relief prior to the filing of any answer to the

Amended Complaint by any Defendant. Accordingly, the Court will treat Plaintiff’s requests for

injunctive relief as requests for temporary restraining orders under Rule 65(b)(1), addressing each

in turn below.

III. LEGAL ANALYSIS

A. Department of Health Intervention

With respect to Plaintiff’s request that the Department of Health intervene and instruct the

WCDC on proper COVID-19 protocols, the undersigned recommends denial, noting that

Plaintiff’s request for transport to the law library (contained in the same motion), was denied on

September 15, 2022. (ECF No. 6). Plaintiff’s motion does not comply with the requirements of

Rule 65(b)(1) because it does not include an affidavit or any other reliable documentation in

support. Second, and more importantly, the motion fails to establish that Plaintiff will suffer

“immediate and irreparable injury” absent immediate injunctive relief. Plaintiff has not

demonstrated that his requested relief – Department of Health intervention – would prevent the

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harm he seeks to avoid, namely contracting COVID-19. Put differently, even if the Arkansas

Department of Health were to intervene and instruct jail personnel on proper COVID-19 protocols,

Plaintiff has not demonstrated how this intervention would lead to compliance with those protocols

and/or minimize his risk of disease while incarcerated.

Even had Plaintiff’s motion for injunctive relief satisfied the requirements of Rule 65(b)(1),

it does not satisfy Rule 65(d). Rule 65(d) limits the court’s authority to enjoin non-parties in an

action to “other persons who are in active concert or participation with [the parties] or [the parties’

officers, agents, servants, employees, and attorneys].” Fed. R. Civ. P. 65(d). The Arkansas

Department of Health is not a party to this action, and there are no allegations that the Department

of Health is acting in concert with any parties to this action. See Pediatric Specialty Care, Inc. v.

Arkansas Dept. of Human Services, 364 F.3d 925, 933 (8th Cir. 2004) (reversing injunction as it

applied to a non-party concluding that non-party’s mere “supervisory” role did not qualify as active

participation within the meaning of Rule 65). Assuming, arguendo, the Department of Health has

authority to issue public health guidance on appropriate COVID-19 prevention and containment

measures in facilities such as detention centers, this does not mean that the Department of Health

is actively involved with the WCDC within the meaning of Rule 65. Accordingly, Plaintiff’s

motion for injunctive relief requiring intervention by the Department of Health (ECF No. 5) should

be denied.

B. Additional Writing Implements

Plaintiff’s motion for injunctive relief requiring the WCDC to provide him with more than

one, 3-inch pencil per week should also be denied. Plaintiff’s motion again fails to comply with

the technical aspects of Rule 65(b)(1) because it does not include any supporting documentation,

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see Fed. R. Civ. P. 65(b)(1)(A), and Plaintiff similarly has failed to meet the “immediate and

irreparable injury” standard required under Rule 65(b)(1)(A). Unfortunate for his request,

Plaintiff has not established that he will suffer harm if the WCDC does not furnish him (at no

additional cost) additional writing implements. There are no pending motions requiring his written

response in any of his pending civil actions in this district. See Scharnhorst v. Cantrell et al, Civil

No. 5:22-CV-05138-TLB-MEF; Scharnhorst v. Helder et al, Civil No. 5:22-CV-05167-TLB-

CDC. Moreover, Plaintiff has demonstrated in his multiple lawsuits that he is well-equipped to

prosecute civil rights cases with the resources currently available to him. Finally, there is no

credible suggestion that Plaintiff needs to be personally preparing any research, motions, or

responses in his state criminal case.

Plaintiff’s injunctive request also fails to provide any nexus to the claims alleged in his

Amended Complaint. Preliminary injunctive relief is granted “to preserve the status quo and

prevent irreparable harm until the court has an opportunity to rule on the lawsuit’s merits.” Devose

v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (citing Dataphase Sys. Inc. v. C L Sys., Inc., 640

F.2d 109, 113 & n.5 (8th Cir. 1981) (en banc)). “Thus, a party moving for a preliminary injunction

must necessarily establish a relationship between the injury claimed in the party’s motion and the

conduct asserted in the complaint.” Id. Here, Plaintiff’s request for injunctive relief – an order

requiring the WCDC furnish him with additional writing instruments – has nothing to do with the

claims for relief set forth in his Complaint, namely, that WCDC personnel are endangering his

health by failing to comply with COVID-19 protocols in violation of his constitutional rights.

Accordingly, it is recommended that Plaintiff’s motion to require that WCDC provide more

writing implements be denied.

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C. COVID-19 COMPLIANCE

Plaintiff’s third motion for injunctive relief requests the court order WCDC jail personnel

to comply with COVID-19 containment and prevention protocols, including requiring jail

personnel to wear N-95 masks. (ECF No. 14). Leaving aside Plaintiff’s failure to include an

affidavit or any supporting documentation, Plaintiff once again fails to establish he will suffer

“immediate and irreparable injury, loss, or damage” absent this Court’s granting of injunctive

relief. Plaintiff’s motion voices a concern that he may contract COVID-19 because of the

facility’s alleged failure to adequately comply with COVID-19 safety protocols (specifically, N-

95 mask wearing), a potential but speculative future harm. Plaintiff’s motion belies any

immediacy of the purported harm as Plaintiff reveals he has been filing grievances about this

problem for approximately one month to no avail. (ECF No. 14, p.1). The Court is mindful 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.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995). As noted

herein, none of Defendants have answered the Amended Complaint (which complains about

WCDC’s COVID-19 protocols), and therefore, at this stage of the proceedings, the undersigned

recommends that Plaintiff’s request for injunctive relief be denied.

IV. CONCLUSION

For the reasons outlined above, the undersigned recommends that (1) Plaintiff’s Motion

for an Injunction requiring the Department of Health to Intervene (ECF No. 5) be DENIED; (2)

Plaintiff’s Motion for an Injunction requiring the WCDC to furnish him with additional pencils

(ECF No. 9) be DENIED; and (3) Plaintiff’s Motion for an Injunction requiring WCDC personnel

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to comply with COVID-19 protocols (ECF No. 14) be DENIED.

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file

timely objections may result in waiver of the right to appeal questions of fact. The parties

are reminded that objections must be both timely and specific to trigger de novo review by

the district court.

DATED this 3 day of October 2022.

( ety Cometeck

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE