Burke v. North Dakota Department of Corrections and Rehabilitation et al

Filing 86

ORDER ADOPTING REPORT AND RECOMMENDATION; denying 75 Motion for Preliminary Injunction; adopting 84 Report and Recommendations. by Judge Daniel L. Hovland.(MM) Distributed on 7/30/2014. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Dale Joseph Burke,

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Plaintiff,
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ORDER ADOPTING REPORT
vs.
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AND RECOMMENDATION
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North Dakota Department of Correction
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Case No. 1:12-cv-131
and Rehabilitation, et. al.,
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Defendants.
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______________________________________________________________________________
Before the Court is Plaintiff Dale Joseph Burke’s “Motion for Preliminary Injunction.”
filed on May 2, 2014. See Docket No. 75. The matter was referred to Magistrate Judge Charles
S. Miller for the issuance of a Report and Recommendation. The Defendants filed a response in
opposition to the motion on May 7, 2014. See Docket No. 76. The Plaintiff filed a reply brief
on May 15, 2014. See Docket No. 81. On May 20, 2014, Judge Miller issued a Report and
Recommendation wherein he recommended that Burke’s motion be denied. Both parties were
given fourteen (14) days to object to the Report and Recommendation. No objections were filed.
In his motion, the Plaintiff contends a preliminary injunction is necessary because the
Defendants are retaliating against him for initiating this action by denying him medical
treatment. The Defendants contend the Plaintiff’s motion is improper because it has nothing to
do with his underlying claims in the present action. Judge Miller agreed with the Defendants
and the undersigned concurs. The contentions in the motion for a preliminary injunction have
nothing to do with the underlying claims and do not constitute a basis for a preliminary
injunction.
The Court has carefully reviewed the Report and Recommendations, relevant case law,
and the entire record, and finds the Report and Recommendations to be persuasive.

Accordingly, the Court ADOPTS both Report and Recommendation (Docket No. 84) in its
entirety and DENIES Burke’s requests for a preliminary injunction. (Docket No. 75).
IT IS SO ORDERED.
Dated this 30th day of July, 2014.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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