DiCesare v. Makinson et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JOSEPH ANGELO DICESARE, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-21-231-JFH-GLJ
)
GARY MAKINSON, JOSHUA 	)
WHINEY, FNU LAWSON, CINDY 	)
STEPHENS, KRISTI D. DOYDSTON, 	)
OKMULGEE COUNTY, EDDIE RICE, 	)
OKMULGEE COUNTY BOARD OF 	)
COUNTYY COMMISSIONERS, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s Motion for Injunctive Relief. 	On
March 3, 2026, the Court referred the Plaintiff’s Motion to the undersigned Magistrate
Judge for Findings and Recommendation pursuant to 28 U.S.C. § 636(b)(1). [Docket No.
138]. 	For the reasons set forth below, the undersigned Magistrate Judge finds that
Plaintiff’s Motion for Injunctive Relief [Docket No. 137] should be DENIED.
Background
Plaintiff, representing himself pro se, initiated this action against various Okmulgee
County Sheriff’s deputies 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 (“DHS”), the execution of a “writ of assistance”
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at Plaintiff’s residence, and the subsequent attempt to serve summons in this case on several
defendants at the Okmulgee Sheriff’s Office.1 See Docket No. 64.
On March 3, 2026, Plaintiff filed his Motion for Injunctive Relief. 	Specifically,
Plaintiff seeks to enjoin KB Enterprises, Kade Bailey, Kannon Baily, and Ken Baily from
foreclosing on or otherwise taking Plaintiff’s property or evicting him from such property.
See Docket No 137. Not only are the Baileys and KB Enterprises not parties to this action,
but Plaintiff does not allege they had any involvement in any of the incidents or actions
that gave rise to Plaintiff’s claims in this action.
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
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)).
1 DHS was previously dismissed, see Docket No. 85, and Gary Makinson is the only defendant to
be served, although Plaintiff was recently granted an additional 45 days to serve the remaining
defendants, see Docket No. 143.
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Analysis
Federal Rule of Civil Procedure 65 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
of claims that the Bailey’s and KB Enterprises, non-parties to this action, are attempting to
take his property and/or evict him from such property. 	See Docket No. 137. 	Plaintiff’s
Second Amended Complaint never mentions any of the Baileys, KB Enterprises or any
efforts by them to take his property. 	See Docket No. 64. 	As such, Plaintiff’s motion is
seeking relief unrelated to his Second Amended Complain.
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Absent a relationship between a motion for injunctive relief and the conduct alleged
in the Second Amended Complaint, the “motion for temporary relief has nothing to do with
preserving the district court's decision-making power over the merits of [the] lawsuit.”
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). 	Courts have held that where a
movant fails to connect a request for injunctive relief to the underlying claims in a civil
action, the motion for injunctive relief is properly denied. 	See, e.g., Boles v. Colo. Dep't
of Corr., 2020 WL 2098205, at *2 (D. Colo. May 1, 2020) (denying motion for injunctive
relief where it sought relief that was “entirely unrelated to any claim alleged in the
complaint”); Gess v. USMS, 2020 WL 8838280, at *21 (D. Colo. Dec. 10, 2020)
(recommending denial of a motion for injunction where the plaintiff sought relief unrelated
to his underlying claims), report and recommendation adopted in pertinent part, 2021 WL
423436 (D. Colo. Feb. 5, 2021).
Moreover, the Court generally has no power to enjoin non-parties to this litigation.
Under the Federal Rules, an injunction binds only the parties; the parties’ officers, agents,
servants, employees, and attorneys; or “other persons who are in active concert or
participation with” those individuals. Fed. R. Civ. P. 65(d). Plaintiff does not allege any
of the Baileys are acting as agents of or in active concert with any identified defendant.
This is an independently sufficient basis to deny the Motion for Injunctive Relief. See
Neighbors v. Lawrence Police Dep't, 2016 WL 3685355, at *13 (D. Kan. July 12, 2016)
(“[T]he District Court is not a party to this case. The court thus has no authority to issue an
injunction against it under Fed. R. Civ. P. 65.”); Gess, 2020 WL 8838280, at *20
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(recommending denial of motion for preliminary injunction that “[sought] relief against
individuals who are not named defendants in th[e] case”).
CONCLUSION
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Plaintiff’s Motion for Injunctive Relief [Docket No. 137] be DENIED. Any objection 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 objections 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.
IT IS SO ORDERED this 11th day of March, 2026.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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