* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral 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 

### JUN 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
LAWRENCE BROADNAX, Plaintiff-Appellant, BRYAN DALE NEWTON; JAMES MOORE; JAMES VOSS; JACK ADARGO, Plaintiffs, v. UNITED STATES PAROLE COMMISSION; FEDERAL BUREAU OF PRISONS, Defendants-Appellees. No. 96-6161 (D.C. No. CIV-96-189) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Lawrence Broadnax, appearing pro se , appeals the district court’s order of April 24, 1996, denying his motion for a prelimi nary injunction.

On February 5, 1996, Mr. Broadnax and four other in mates (collectively referred to as "Plaintiffs") awaiting parole revocation hearings at the Federal Transfer Center in Oklahoma City, Oklahoma, filed t his civil rights action pursuant to 28 U.S.C. § 1331 challenging the contin ued existence of the United States Parole Commission (Parole Commission). On F ebruary 20, 1996, Plaintiffs filed motions for a hearing before a three-judge pa nel, class certification, and a preliminary injunction.

Plaintiffs requested a preliminary injunction to pr event the United States Parole Commission from violating their due process and equal protection rights. Specifically, Plaintiffs requested the Parole Commi ssion be prevented from: (1) refusing to follow Congressional mandates; (2) tran sfering parole violators to Oklahoma for revocation hearings; (3) conducting re vocation hearings without qualified examiners; (4) requiring parole violators to conduct their legal research in the Federal Detention Center’s inadequate law li brary; (5) unfairly restricting retained counsels' access to parole violators compa red to the access afforded the Federal Public Defenders; (6) preventing parole vio lators from reviewing their-3-

Central Files and other pertinent documents prior t o their revocation hearings; (7) refusing to afford HIV positive parole violators ac cess to appropriate medical care; (8) refusing to afford translators and biling ual hearings for Spanish speaking parole violators; (9) transfering parole violators from Hawaii; (10) refusing to wind up its business as Congressionally mandated; and (11) continuing to utilize outdated rules and procedures.

On March 19, 1996, the Magistrate Judge issued a Re port and Recommendation recommending the district court denyPlaintiffs' motion for a preliminary injunction. The Magistrate Judge found Plaintiffs failed to demonstrate their entitlement to a preliminary inju nction. Specifically, the Magistrate Judge concluded Plaintiffs failed to dem onstrate the Parole Commission would not be substantially harmed, the g ranting of the motion was consistent with public policy, or a strong likeliho od of success on the merits. In addition, the Magistrate Judge found Plaintiffs did not seek to maintain the status quo pending a determination on the merits, but soug ht to use the preliminary injunction as a vehicle to effect the remedies soug ht in the complaint.

On April 24, 1996, the district court considered th e Magistrate Judge's Report and Recommendation de novo . The district court concurred in the1 On March 5, 1996, this court dismissed Mr. Broadn ax’s co-plaintiffs for

failure to prosecute the appeal. -4- Magistrate Judge's findings and conclusions, adopte d the Report and Recommendation, and denied Plaintiffs’ motion for apreliminary injunction.

On appeal, Mr. Broadnax 1 contends the district court erred in denying the motion for a preliminary injunction based on Fed. R . Civ. P. 23(b)(2) and in adopting the Magistrate Judge's Report and Recommen dation. Mr. Broadnax asserts (1) preliminary injunctive relief could no t be denied under Rule 23(b)(2) because it was so "inextricably interwoven with the Class Certification Motion" the district court could not rule on one motion wit hout ruling on the other; and (2) the Magistrate Judge's Report and Recommendation wa s clearly erroneous.

We review the district court's denial of a prelimin ary injunction for abuse of discretion, which occurs only when the district court bases its decision on erroneous conclusions of law or where there is no r ational basis in the evidence for the district court's decision. Chemical Weapons Working Group, Inc. v. United States Dep't of the Army , 111 F.3d 1485, 1489 (10th Cir. 1997). To establish entitlement to a preliminary injunction, the moving party must show (1) he will suffer irreparable injury if an injunction is not granted; (2) the threatened-5-

injury to the moving party outweighs any injury the requested injunction may cause the nonmoving party; (3) the injunction would not be detrimental to the public interest; and (4) a substantial likelihood t he moving party will succeed on the merits. Walmer v. United States Dep’t of Defense , 52 F.3d 851, 854 (10th Cir.), cert. denied, 116 S. Ct. 474 (1995).

After a careful review of the record, we conclude t he district court did not commit error of law or abuse its discretion in find ing Mr. Broadnax failed to establish the necessary requirements for a prelimin ary injunction. First, the district court applied the correct standard of law for a preliminary injunction. Second, the record demonstrates Mr. Broadnax failed to present sufficient evidence showing the following: irreparable injuryabsent a preliminary injunction; his threatened injury outweighs the pot ential injury to the Parole Commission; the preliminary injunction is not adver se to the public interest; or there is a substantial likelihood he will prevail o n the merits. Therefore, the district court did not abuse its discretion in deny ing Mr. Broadnax a preliminary injunction.

Additionally, Mr. Broadnax's argument under Rule 23 (b)(2) is without merit. Fed. R. Civ. P. 23(b)(2) provides an action may be maintained as a class-6-

action if all the requirements of subsection (a) ar e met and the party opposing the class has made finalinjunctive relief appropriate. Fed. R. Civ. P. 23 (b)(2) (emphasis added). In this appeal, we are concerned with preliminaryinjunctive relief only, not finalinjunctive relief. Therefore, by its own language Rule 23(b)(2) clearly does not apply.

Accordingly, we AFFIRM substantially for the reasons stated in the Magistrate Judge's Report and Recommendation of Mar ch 19, 1996, and the district court's Order of April 24, 1996.

Entered for the Court
WADE BRORBY United States Circuit Judge