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O'BRYAN v. BUREAU OF PRISONS

United States District Court, S.D. Illinois


August 2, 2005.

KERRY DEVIN O'BRYAN, Plaintiff
v.
BUREAU OF PRISONS, et al., Defendants.

The opinion of the court was delivered by: PHILIP FRAZIER, Magistrate Judge

REPORT AND RECOMMENDATION

Before the Court is plaintiff's motion to change venue and reinstate preliminary injunctive relief (Doc. No. 144). The claims remaining pertain to plaintiff's efforts to practice his religious beliefs in prison. Plaintiff seeks appropriate relief from the Bureau of Prisons for the alleged violation of his statutory right to practice his sincere religious beliefs (RFRA claim) and seeks declaratory relief from the Bureau of Prisons and defendant Gilkey for violating his First Amendment right to freely exercise his religious beliefs (Bivens Claim). Because plaintiff is currently confined at FCI-Milan, Michigan, the parties agree that these claims should be transferred to the U.S. District Court for the Eastern District of Michigan. That Court will be in the best position to determine whether relief is appropriate based on plaintiff's current status. The defendants oppose plaintiff's request for reinstatement of the preliminary injunction.

Transfer of venue is appropriate under 28 U.S.C. § 1404(a). However, because the evidence presented in support of plaintiff's original motion for preliminary injunctive relief does not permit a fair assessment of the present conditions and rationale for restricting his efforts to practice his religious beliefs at FCI-Milan, Michigan, there are insufficient grounds to reinstate the preliminary injunction at this time.

  IT IS RECOMMENDED that plaintiff's motion (Doc. No. 144) be GRANTED in part and DENIED in part, as follows. Pursuant to 28 U.S.C. § 1404(a), this case should be transferred to the U.S. District Court for the Eastern District of Michigan for resolution of plaintiff's remaining RFRA and Bivens claims. Plaintiff's request to reinstate the preliminary injunction should be denied without prejudice.

20050802

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