Okennard v. Hollingsworth et al

Filing 31

ORDER adopting Report and Recommendation 28 of United States Magistrate Judge Donald G. Wilkerson. The Court DENIES the Plaintiff's request for a temporary restraining order within Motion for Leave to File Amended Complaint 10 . Signed by Judge G. Patrick Murphy on 10/18/12. (bab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BROCK E. OKENNARD,
Plaintiff,
vs.
DAVID SZOKE, P. CASTILLO,
DUNCAN and DR. HOWARD,
Defendant.

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CIVIL NO. 12-51-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Okennard filed this 42 U.S.C. § 1983 suit on January 18, 2012, alleging that
defendants acted with deliberate indifference to his serious medical needs in violation of his
constitutional rights. In brief, Mr. Okennard, suffers from Keratoconus, a degenerative eye
condition. He claims that while he was incarcerated in a different Bureau of Prisons (BOP) facility
in 2005, he underwent a corneal transplant of his left eye that did not heal properly, resulting in
permanent damage to his eye. He claims that he is being denied treatment, as well as a needed
surgery. On June 29, 2012, in a document styled Motion for Leave to File an Amended Complaint,
Mr. Okennard requested that the Court order the BOP to immediately transfer him to a federal
medical facility to receive treatment (Doc. 10). Magistrate Judge Donald G. Wilkerson held an ex
parte hearing on the request for injunctive relief on September 10, 2012 because the defendants had
yet to answer the complaint. The Court construed the request as a Motion for Temporary
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Restraining Order pursuant to FED. R. CIV. P. 65(b) and issued a Report and Recommendation on
September 17, 2012 (Doc. 28). No timely objections have been filed. The Court’s docketing system
indicates that summonses were issued on August 31, 2012, and none of the four defendants have yet
to answer the complaint.
Magistrate Judge Wilkerson’s Report recommends denying Mr. Okennard’s motion because
it is not the type of request that may be granted through the issuance of a temporary restraining
order. Magistrate Judge Wilkerson views it as not merely a request that would preserve status quo,
but instead, as a request for the Court to take over prison management. However, Magistrate Judge
Wilkerson’s recommendation does not preclude later entry of injunctive relief. The Court’s
recommendation limits only the immediate issuance of an order before Defendants answer.
Where timely objections are filed, this Court must undertake a de novo review of the Report
and Recommendation. 28 U.S.C. § 636(b)(1)(B), (c); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b);
Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas v.
Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court “may accept, reject or modify the
magistrate judge’s recommended decision.” Harper, 824 F. Supp. at 788. In making this
determination, the Court must look at all of the evidence contained in the record and “give ‘fresh
consideration to those issues to which specific objections have been made.’” Id., quoting 12 Charles
Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket
Part).
However, where neither timely nor specific objections to the Report and Recommendation
are made, pursuant to 28 U.S.C. § 636(b), this Court need not conduct a de novo review of the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985). While a de novo review

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is not required here, the Court has considered the record and Magistrate Judge Wilkerson’s Report
and Recommendation and fully agrees with the findings, analysis, and conclusions of Judge
Wilkerson.
The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation (Doc. 28)
and DENIES Mr. Okennard’s motion for a temporary restraining order (Doc. 10). Mr. Okennard
may consult with his newly-appointed attorney to determine whether another request for injunctive
relief is warranted.
IT IS SO ORDERED.
DATED: October 18, 2012

s/______________________________
G. PATRICK MURPHY
United States District Judge

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