Davis v. Bear et al

Filing 62

ORDER ADOPTING REPORT AND RECOMMENDATION 56 of Magistrate Judge Gary Purcell and denies plaintiff's request for temporary restraining order/preliminary injunctive relief 48 . Signed by Honorable Joe Heaton on 11/30/2012. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
EZEKIEL DAVIS,
Plaintiff,
vs.
CARL BEAR, et al.,
Defendants.

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NO. CIV-12-0330-HE

ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this § 1983
action against various state employees. He seeks damages for constitutional violations he
claimed occurred while he was incarcerated at the Oklahoma State Reformatory.1 Consistent
with 28 U.S.C. §636(b)(1)(B), the matter was referred to Magistrate Judge Gary M. Purcell,
who recommends that plaintiff’s motion requesting a temporary restraining order or
preliminary injunction be denied.
In his motion/brief, plaintiff asks for an immediate transfer to a medium security
prison and that asserted false misconducts be expunged from his record. The magistrate
judge concluded plaintiff had failed to demonstrate likelihood of success on the merits or
irreparable injury either with respect to the claims alleged in the complaint or his new
request for a transfer.
Plaintiff objected to the Report and Recommendation, principally arguing that he can
demonstrate a likelihood of success. However, even if he can, he has not shown the required

1

After plaintiff filed this lawsuit he was transferred to the Davis Correctional Facility.

irreparable harm. The damage he complains of – that the misconducts will “remain a part
of Plaintiff’s record where they will cause an adverse affect on Plaintiff’s parole eligibility”
– can be remedied at the conclusion of the case, if plaintiff prevails.2
Accordingly, the court adopts Magistrate Judge Purcell’s Report and
Recommendation and DENIES plaintiff’s request for a temporary restraining
order/preliminary injunctive relief [Doc. #48].
IT IS SO ORDERED.
Dated this 30th day of November, 2012.

2

Plaintiff also asserts that, in the absence of injunctive relief, he will have to remain at a
maximum security facility, but does not identify how that could cause irreparable harm.

2