* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 23 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JIMMY PHILLIPS,

Plaintiff-Appellant,

v. OKLAHOMA DEPARTMENT OF CORRECTIONS; REGINALD HINES, Warden; SUSAN MILAN, Health Services Administrator; BARBARA WILSON, Unit Manager; FELIX KELLY; TONITA TAYLOR, Administrative Officer, in their official and individual capacities,

Defendants-Appellees. No. 03-6161 (D.C. No. 03-CV-295-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Although appellant requested both a preliminary inj unction and a temporary

restraining order in the district court, under the circumstances of this case, this court has jurisdiction to consider only the denial of the preliminary injunction. See Populist Party v. Herschler , 746 F.2d 656, 661 n.2 (10th Cir. 1984). 2 this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Appellant Jimmy Phillips, a prisoner at the Lexingt on (Oklahoma) Correctional Facility appearing pro se, appeals fro m the district court’s May 27, 2003 order denying his motion for a temporary restr aining order or preliminary injunction. 1 He also has filed in this court motions for an in junction pending appeal and for leave to proceed in this court witho ut prepayment of costs and fees. As in the district court, he seeks an order directing appellees to reassign him for medical reasons from kitchen work or outsid e labor-pool work to cool, sedentary work. Upon consideration, we grant the m otion for leave to proceed without prepayment of costs and fees, affirm the di strict court’s order, and deny the motion for an injunction pending appeal. In order to demonstrate his entitlement to an injun ction pending appeal, 10th Cir. R. 8.1 requires appellant to address: (1 ) the likelihood that he will succeed on appeal; (2) the threat that he will be i rreparably harmed if the injunction is not granted; (3) the absence of harm to appellees if the injunction is granted; and (4) any risk of harm to the public int erest. Homans v. City of3

Albuquerque , 264 F.3d 1240, 1243 (10th Cir. 2001) (per curiam) . In ruling on appellant’s motion, we make the same inquiry as whe n we review the district court’s denial of a preliminary injunction. Id. Thus, we must determine “whether the district court abused its discretion and whethe r the movant has demonstrated a clear and unequivocal right to relief.” Id. A district court abuses its discretion when it “bases its decision on an erroneous conclus ion of law or where there is no rational basis in the evidence for the ruling.” Ch em. Weapons Working Group, Inc. (CWWG) v. United States Dep’t of the Army , 111 F.3d 1485, 1489 (10th Cir. 1997). We have reviewed the district court record. In the district court, appellant submitted evidence from medical officials at the Lawton Correctional Facility showing that when he was housed there, he was not a ssigned kitchen work or outside work based on a restriction for “cool, sede ntary work only–ongoing.” R., Doc. 19, Ex. 5. The district court denied his motion for a preliminary injunction, adopting the magistrate judge’s reasoni ng that appellant had not shown that his right to relief was clear and unequi vocal. Lexington medical officials had decided that appellant was not limite d to cool, sedentary work, and appellant’s evidence that he was restricted to cool , sedentary work came from another facility and was nearly five years old. Id

. , Doc. 22, at 2; Doc. 9, at 1, 3.4

Appellant has not shown to this court that he will be irreparably harmed absent injunctive relief. In the district court, h is allegations that his health will suffer if he is required to work in the prison kitc hen or in the outside labor pool were unsupported by any recent medical evidence. Any new evidence should be presented to the district court in the first instan ce. In addition, appellant has not shown that he is lik ely to succeed on appeal. Although he presented some evidence to the districtcourt showing that Lexington medical officials have placed some restrictions on the heat he can tolerate while working, he presented no evidence to show that his assigned jobs violate these restrictions. Again, to the extent that he is rely ing on more recent evidence, he should present it first to the district court or to prison officials. Based on this appellate record, he has not demonstrated that the district court abused its discretion or that his right to preliminary relief was “clear and unequivocal,” Kikumura v. Hurley , 242 F.3d 950, 955 (10th Cir. 2001) (quotation omi tted), and he has not met the stringent standards required foran injunction pending appeal in this court under 10th Cir. R. 8.1. In addition, we caution appellant that the practice of incorporating by reference arguments made in other pleadings is disf avored in this court and could result in the waiver of his arguments. See Gaines-Tabb v. ICI Explosives, USA,
Inc. , 160 F.3d 613, 623-24 (10th Cir. 1998). Appellantadopted by reference the5

arguments he presented in a prior petition for writof mandamus and in his objections to the magistrate judge’s report–“so as to not burden this Honorable Court with academic reading perusal.” Aplt. Openin g Br. at 2. Appellant should have fully set out his arguments in his motion for an injunction pending appeal and in his opening brief. Appellant’s motion for leave to proceed without prepayment of costs and fees is granted. He is reminded that he is obligat ed to continue making payments until the filing fee is paid in full. The judgment of the district court is AFFIRMED. Ap pellant’s motion for an injunction pending appeal is denied.

ENTERED FOR THE COURT PER CURIAM