6:21-cv-00231•DiCesare v. Makinson et al
Gesamter Gesetzestext
1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA JOSEPH ANGELO DICESARE, ) ) Plaintiff, ) ) v. ) Case No. 21-cv-231-FAB-GLJ ) GARY MAKINSON, JOSHUA ) WHITNEY, OKMULGEE COUNTY ) DEPUTY LAWSON, CINDY ) STEPHENS, KRISTI D. BOYDSTON, ) OKMULGEE COUNTY, JOHN ) NEWPORT, EDDIE RICE, RON ) BALLARD, Okmulgee County Board of ) County Commissioners, R. DAVID ) WALKER, Okmulgee County Board of ) County Commissioners, JOHN ) CONNORS, Okmulgee County Board of ) County Commissioners, ) ) Defendants. ) REPORT AND RECOMMENDATION This matter is before the Court on Plaintiff’s “*Cease & Desist**Motion to Vacate Sale *T.R.O.” [Docket No. 176]. On February 17, 2026, the Court referred this case to the undersigned Magistrate Judge for all further proceedings in accordance with jurisdiction pursuant to 28 U.S.C. § 636 [Docket No. 18] and subsequently specifically referred this Motion to the undersigned Magistrate Judge [Docket No. 179]. For the reasons set forth below, the undersigned Magistrate Judge finds Plaintiff’s Motion to Vacate Sale T.R.O. [Docket No. 176] should be DENIED. 6:21-cv-00231-FAB-GLJ Document 183 Filed in ED/OK on 07/17/26 Page 1 of 6
2 Background Plaintiff, representing himself pro se, initiated this action against various Okmulgee County Sheriff’s deputies, Okmulgee County officials and others arising out of a series of events beginning in 2019 leading to Plaintiff’s arrest, subsequent transport to and booking in the Okmulgee County jail, certain findings and the removal of Plaintiff’s children from his custody by the Oklahoma Department of Human Services, the execution of a “writ of assistance” at Plaintiff’s residence, and the subsequent attempt to serve summons in this case on several defendants at the Okmulgee County Sheriff’s Office. See Docket No. 64.1 The Court previously rejected Plaintiff’s attempt to enjoin KB Enterprises, Kade Bailey, Kannon Baily, and Ken Baily from foreclosing on or otherwise taking his property or evicting him from such property because they were not parties to the action and Plaintiff did not allege they had any involvement in any of the incidences or actions giving rise to Plaintiff’s claims in this action. See Docket No. 153. On July 16, 2026, the undersigned Magistrate Judge recommended that Plaintiff’s Motion to File Third Amended Complaint [Docket No. 160] and Motion to Amend Motion to File Third Amended Complaint [Docket No. 177] be denied. See Docket No. 182. Through his proposed Third Amended Complaint, Plaintiff is attempting to add Kannon Bailey and Ken Bailey, as well as the Okmulgee County Commissioners, as parties to this action for claims arising out of his interactions and a real estate transaction with Kannon 1 The Second Amended Complaint [Docket No. 64] is the operative complaint in this case. After its filing, the Oklahoma Department of Health and Human Services was subsequently dismissed. See Docket No. 85. 6:21-cv-00231-FAB-GLJ Document 183 Filed in ED/OK on 07/17/26 Page 2 of 6
3 Baily and/or Ken Bailey and state court legal proceedings related thereto. See Docket Nos. 160 & 177. The undersigned Magistrate Judge recommended denying these motions because the proposed new parties and claims are completely unrelated to the claims in this action, the untimeliness of the motions and the futility of the proposed amendment. See Docket No. 182. In the present Motion, Plaintiff seeks a “cease and desist order” from the Court directed at Kannon Bailey, Kade Bailey, Ken Bailey, and Luke Gaither, the Bailey’s attorney, regarding their actions related to property that is subject to a forcible entry and detainer action in the District Court of Okmulgee County, State of Oklahoma, Case No. SC-26-143 (“Okmulgee Case”). See Docket No. 177 & Okmulgee Case docket.2 Because Plaintiff is proceeding pro se, the undersigned Magistrate Judge liberally construes his pleadings. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) (requiring courts to liberally construe a pro se litigant’s pleadings); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (a court construes a pro se party’s pleadings liberally and holds them “to a less stringent standard than [that applied to] formal pleadings drafted by lawyers.”). Although pro se pleadings are held to a less stringent standard than ones drafted by lawyers, the court cannot and does not act as his advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and a pro se litigant must “‘follow the same rules of procedure 2 The Court may take judicial notice of both its own docket sheets and other state or federal court docket sheets. United States v. Ahidley, 486 F.3d 1184,1192, n. 5 (10th Cir. 2007) (“We may exercise our discretion to take judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand.”). The docket for the Okmulgee Case is publicly available at https://www.oscn.net. 6:21-cv-00231-FAB-GLJ Document 183 Filed in ED/OK on 07/17/26 Page 3 of 6
4 that govern other litigants.’” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Analysis Although Plaintiff titles his motion as a request for “*Cease & Desist**Motion to Vacate Sale*T.R.O.*”, the undersigned Magistrate Judge interprets it to be a motion for a temporary restraining order under Federal Rule of Civil Procedure 65, which authorizes the court to enter preliminary injunctions and issue temporary restraining orders. Fed. R. Civ. P. 65(a), (b). Courts consider a preliminary injunction an extraordinary remedy. See, e.g., Winter v. Nat'l Res. Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). Thus, the right to such relief must be “clear and unequivocal.” Petrella v. Brownback, 787 F.3d 1242, 1256 (10th Cir. 2015) (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)). A party seeking preliminary injunctive relief must satisfy four factors: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant’s favor; and (4) that the injunction is in the public interest. Id. at 1257. Additionally, to obtain injunctive relief, “the movant must establish a relationship between the injury claimed in the party’s motion and the conduct asserted in the complaint.” Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (quotation omitted). In this case, Plaintiff asserts an array of violations of his constitutional and statutory rights arising out of his arrest, booking at the Okmulgee jail, and treatment by law enforcement officers and DHS personnel. In contrast, Plaintiff’s request for injunctive relief arises out 6:21-cv-00231-FAB-GLJ Document 183 Filed in ED/OK on 07/17/26 Page 4 of 6
5 of claims that the Bailey’s and their attorney are attempting to take his property and/or evict him from such property. See Docket No. 176. As noted above, Plaintiff’s previous attempt to obtain injunctive relief regarding the transaction with the Baily’s was denied by this Court because the Bailey’s were not parties to this action. See Docket No. 153. If the July 16, 2026 Report and Recommendation recommending denying Plaintiff’s proposed Third Amended Complaint is adopted, then the Bailey’s3 will still not be parties to this action. As such, for the same reasons set forth in the Order previously denying injunctive relief, the present Motion should be denied because there is no relationship between the injunctive relief sought and the conduct alleged in the Second Amended Complaint, the motion seeks injunctive relief against non-parties to the litigation, and the Court does not have authority to enjoin non-parties without a showing that they are “acting as agents of or in active concert with any identified defendant.” See Docket Nos. 144 & 153. Additionally, because the Okmulgee Case is currently pending in Okmulgee District Court, the Motion should also be denied under the Younger4 abstention doctrine, as discussed in the July 16 2026 Report and Recommendation. See Docket No. 182. The Okmulgee Case is an ongoing state court proceeding that provides an adequate forum for Plaintiff’s claims and involves an important state interest. Id. Thus, Plaintiff has an adequate legal forum in the Okmulgee Case in which to press his claims against the Bailey’s or to seek injunctive relief. 3 Plaintiff’s proposed Third Amended Complaint does not even seek to add Kade Bailey or Luke Gaither as parties, so they would not be parties even if the proposed Third Amended Complaint were allowed. 4 Younger v. Harris, 401 U.S. 37 (1971). 6:21-cv-00231-FAB-GLJ Document 183 Filed in ED/OK on 07/17/26 Page 5 of 6
6 Conclusion Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that Plaintiff’s Motion to Vacate Sale T.R.O. [Docket No. 176] should be DENIED. Any objections to this Report and Recommendation must be filed within fourteen days. See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Any objection and response shall each be limited to 10 pages and a reply is permitted only with leave of court upon a showing of good cause. DATED this 17th day of July, 2026. _____________________________________ GERALD L. JACKSON UNITED STATES MAGISTRATE JUDGE 6:21-cv-00231-FAB-GLJ Document 183 Filed in ED/OK on 07/17/26 Page 6 of 6
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