Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

O'BRYAN v. BUREAU OF PRISONS

United States District Court, S.D. Illinois


August 8, 2005.

KERRY DEVIN O'BRYAN, Plaintiff,
v.
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 Illinois.)

  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. 1999).

  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 is warranted.

  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.

20050808

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.