*

 This order and judgment is not binding precedent except under the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 judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case 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 preliminary injunction.

On February 5, 1996, Mr. Broadnax and four other inmates (collectively

referred to as "Plaintiffs") awaiting parole revocation hearings at the Federal

Transfer Center in Oklahoma City, Oklahoma, filed this civil rights action

pursuant to 28 U.S.C. § 1331 challenging the continued existence of the United

States Parole Commission (Parole Commission). On February 20, 1996, Plaintiffs

filed motions for a hearing before a three-judge panel, class certification, and a

preliminary injunction.

Plaintiffs requested a preliminary injunction to prevent the United States

Parole Commission from violating their due process and equal protection rights. 

Specifically, Plaintiffs requested the Parole Commission be prevented from: (1)

refusing to follow Congressional mandates; (2) transfering parole violators to

Oklahoma for revocation hearings; (3) conducting revocation hearings without

qualified examiners; (4) requiring parole violators to conduct their legal research

in the Federal Detention Center’s inadequate law library; (5) unfairly restricting

retained counsels' access to parole violators compared to the access afforded the

Federal Public Defenders; (6) preventing parole violators from reviewing their
-3-

Central Files and other pertinent documents prior to their revocation hearings; (7)

refusing to afford HIV positive parole violators access to appropriate medical

care; (8) refusing to afford translators and bilingual 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 Report and

Recommendation recommending the district court deny Plaintiffs' motion for a

preliminary injunction. The Magistrate Judge found Plaintiffs failed to

demonstrate their entitlement to a preliminary injunction. Specifically, the

Magistrate Judge concluded Plaintiffs failed to demonstrate the Parole

Commission would not be substantially harmed, the granting of the motion was

consistent with public policy, or a strong likelihood 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 sought to use the preliminary

injunction as a vehicle to effect the remedies sought in the complaint.

On April 24, 1996, the district court considered the Magistrate Judge's

Report and Recommendation de novo. The district court concurred in the
1

 On March 5, 1996, this court dismissed Mr. Broadnax’s co-plaintiffs for

failure to prosecute the appeal.

-4-

Magistrate Judge's findings and conclusions, adopted the Report and

Recommendation, and denied Plaintiffs’ motion for a preliminary injunction.

On appeal, Mr. Broadnax1 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 Recommendation. Mr. Broadnax

asserts (1) preliminary injunctive relief could not 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 without ruling on the other; and (2)

the Magistrate Judge's Report and Recommendation was clearly erroneous.

We review the district court's denial of a preliminary 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 rational 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 the 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 the district court did not

commit error of law or abuse its discretion in finding Mr. Broadnax failed to

establish the necessary requirements for a preliminary 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 injury absent a preliminary

injunction; his threatened injury outweighs the potential injury to the Parole

Commission; the preliminary injunction is not adverse to the public interest; or

there is a substantial likelihood he will prevail on the merits. Therefore, the

district court did not abuse its discretion in denying 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) are met and the party opposing the

class has made final injunctive relief appropriate. Fed. R. Civ. P. 23(b)(2)

(emphasis added). In this appeal, we are concerned with preliminary injunctive

relief only, not final injunctive 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 March 19, 1996, and the

district court's Order of April 24, 1996.

Entered for the Court

WADE BRORBY

United States Circuit Judge