United States District Court, S.D. Illinois
August 8, 2005.
KERRY DEVIN O'BRYAN, Plaintiff,
BUREAU OF PRISONS, et al., Defendants.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
MEMORANDUM and ORDER
In September 2004, the undersigned Judge granted in part and
denied in part Defendants' dismissal motion (Doc. 71) and granted
Plaintiff O'Bryan's motion for preliminary injunction (Doc. 16).
Two claims remained following that Order a RFRA claim and a
First Amendment Bivens claim for declaratory relief. On October
28, 2004, Plaintiff O'Bryan filed an interlocutory appeal of the
September 2004 Order. The United States Court of Appeals for the
Seventh Circuit dismissed the appeal in January 2005.
In March 2005, United States Magistrate Judge Philip M. Frazier
conducted a status conference in the case. In July 2005,
Plaintiff O'Bryan (through his counsel) filed a motion to change
venue and reinstate preliminary injunction (Doc. 144). Defendants
filed a responsive brief one week later.
On August 2, 2005, Magistrate Judge Frazier submitted a Report
(Doc. 146) recommending that the undersigned District Judge
transfer what remains of this lawsuit to the United States
District Court for the Eastern District of Michigan under
28 U.S.C. § 1404(a).
Specifically, the Report recommends that the Court grant the
part of O'Bryan's July 11th motion which seeks a venue transfer and deny the part
of O'Bryan's motion which requests reinstatement of the
preliminary injunction previously entered in this case. As to the
latter recommendation, Judge Frazier explains that the current
record before the Court contains insufficient grounds on which to
reinstate the preliminary injunction, because the evidence
presented to support O'Bryan's original motion for preliminary
injunctive relief "does not permit a fair assessment of the
present conditions" at his current place of incarceration,
FCI-Milan in Michigan (Doc. 146, pp. 1-2). (When he first sought
the preliminary injunction, O'Bryan was confined at FCI-Pekin in
On August 5, 2005, Plaintiff O'Bryan filed objections to Judge
Frazier's Report. Timely objections having been filed, this Court
must undertake de novo review of the portions of the Report to
which specific objection was made. 28 U.S.C. § 636(b)(1)(B);
FED. R. CIV. P. 72(b); Southern District of Illinois Local Rule
73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir.
1992). The Court may accept, reject or modify the recommended
decision, or recommit the matter to the Magistrate Judge with
instructions. FED. R. CIV. P. 72(b); Local Rule 73.1(b);
Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir.
O'Bryan does not object to the portion of the Report which
recommends a venue transfer. Indeed, the parties all agree that
such transfer is proper and merited. O'Bryan only objects to the
recommendation that the Court deny his request to reinstate the
preliminary injunction earlier issued herein.
Having carefully considered the issue, the Court concludes that
reinstatement of the preliminary injunction is not appropriate at
this time. The record does not reveal the current situation where
O'Brien is housed (at FCI-Milan), and the prison policy he
challenges was amended significantly in December 2004 (apparently the policy no longer
prohibits the casting of spells). More importantly, the Court
finds that it is most efficient and appropriate for the District
Judge to whom this case will be transferred to conduct any
hearing and determine whether preliminary injunctive relief now
Accordingly, the Court ADOPTS in its entirety Magistrate
Judge Frazier's August 2, 2005 Report (Doc. 146) and GRANTS in
part and DENIES in part O'Bryan's July 11, 2005 motion (Doc.
144). The motion is denied to the extent it sought reinstatement
of the earlier preliminary injunction. The motion is granted to
the extent it sought venue transfer of this case. Pursuant to
28 U.S.C. § 1404(a), this case hereby is TRANSFERRED to the
United States District Court for the Eastern District of Michigan.
IT IS SO ORDERED.
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