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. 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.
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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.
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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.
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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
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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).
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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
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