Terry Oliver, Plaintiff-appellant, v. Gary W. Deland, O. Lane Mccotter, Billie Casper, James Olin,lynn Waller, Richard Fischer, Defendants-appellees, 48 F.3d 1232 (10th Cir. 1995)

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.

Plaintiff Terry Oliver brought this 42 U.S.C.1983 suit against six named officers and nine unnamed officers of the Utah State Prison. He alleged that defendants violated his constitutional and contractual rights by discriminating against him on the basis of his religion.²  The district court ultimately granted defendants' motion for summary judgment. Plaintiff complains only of errors that allegedly prevented him from adequately contesting defendants' summary judgment motion: the magistrate judge abused his discretion (1)in denying in part plaintiff's motion to compel production of documents and (2)in denying plaintiff's motion for a temporary restraining order or other injunctive relief; and (3)the district court failed to review de novo the magistrate judge's Report and Recommendation before denying plaintiff's motion for a restraining order or other injunctive relief.

Plaintiff's case was referred to the magistrate judge, and discovery and motion practice ensued. Plaintiff filed a motion to compel discovery alleging that defendants had not adequately responded to his document production request. The magistrate judge granted this motion in part and denied it in part, allowing plaintiff access to some of the documents he sought. Plaintiff, however, made no further efforts to obtain those documents. When defendants thereafter moved for summary judgment, plaintiff filed a motion for additional time to conduct discovery in order to respond to that motion, and asked for what he characterized as a temporary restraining order. The magistrate judge only granted plaintiff additional time to respond, but plaintiff never filed a responsive pleading. The magistrate judge then filed a Report and Recommendation that plaintiff's motion for a restraining order be denied, to which plaintiff objected. The district court judge adopted the magistrate judge's Report and Recommendation to deny plaintiff's request for injunctive relief. The district court also granted defendant's motion for summary judgment and dismissed the action.

Plaintiff first asserts that the magistrate judge abused his discretion in denying in part plaintiff's motion to compel discovery. We review denial of a discovery request for abuse of discretion. See Building and Constr. Dep't; AFL-CIO v. Rockwell Int'l Corp., 7 F.3d 1487, 1496 (10th Cir. 1993).

In ruling on the motion to compel discovery, the magistrate judge refused to order defendants to produce documents that were not relevant or material to any of plaintiff's claims of religious discrimination. The magistrate judge required defendants to provide plaintiff access to many of the requested documents, but did not require them to provide plaintiff with duplicate copies. Our review of the record, including the magistrate judge's detailed order, indicates that the judge did not abuse his discretion in partially denying plaintiff's motion to compel discovery.

Plaintiff next argues that the district court abused its discretion in denying plaintiff's motion for a temporary restraining order. His request for that order addressed the availability of his legal materials. What plaintiff sought by his "temporary restraining order" motion was delay in the court's determination of his case, fuller access in his cell to his legal materials, the return to him of other documents he claimed were taken from his legal materials (but which he did not identify), and a delay in the court's determination of his cause until he had them. The court noted that plaintiff could retain one box of legal materials in his cell and had access to four other boxes of legal documents. Although plaintiff alleges that some of his legal documents were either lost or misidentified as nonlegal material by the Utah State Prison, he has not identified those documents and their significance to this case.

The district court treated plaintiff's motion as a request for a preliminary injunction, and applied the four-part test set out in Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992) ("To obtain a preliminary injunction, the moving party must establish that (1)the moving party will suffer irreparable injury unless the injunction issues; (2)the threatened injury to the moving party outweighs whatever damage the proposed injunction may cause the opposing party; (3)the injunction, if issued, would not be adverse to the public interest; and (4)there is a substantial likelihood that the moving party will eventually prevail on the merits."). We review the grant or denial of an injunction for abuse of discretion. Cablevision of Texas, III, L.P. v. Oklahoma W. Tel. Co., 993 F.2d 208, 210 (10th Cir. 1993).

Whether the court properly treated the case as one for a temporary injunction or as related to his discovery request, the court correctly denied relief. Plaintiff did not meet his burden to show irreparable harm to support injunctive relief. Plaintiff did not establish that he was denied reasonable access to his legal materials, nor identify any to which he had no access.

Plaintiff next asserts that the district court failed to conduct a de novo review of the magistrate judge's Report and Recommendation on the temporary restraining order motion as required by 28 U.S.C. 636(b) (1). The district court did not specifically state that it conducted a de novo review in light of plaintiff's timely objections to the Report and Recommendation. However, the district court referenced the magistrate judge's reasoning and also identified plaintiff's objections to the Report and Recommendation. The district court independently discussed plaintiff's failure to establish irreparable injury. We are satisfied that the district court conducted a de novo review.

Finally, plaintiff points out that the district court granted summary judgment without a report and recommendation by the magistrate judge. An order of reference pursuant to 28 U.S.C. 636(b) (1) (B) does not deprive a district court of its authority to rule on pending motions. Cf. Clark v. Poulton, 963 F.2d 1361, 1366 (10th Cir.) (recognizing need for "maximum flexibility" in district court referrals to magistrate judges), cert. denied, 113 S. Ct. 635 (1992).

AFFIRMED.

The mandate shall issue forthwith.