                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 23 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JIMMY PHILLIPS,

                Plaintiff-Appellant,

    v.                                                   No. 03-6161
                                                   (D.C. No. 03-CV-295-M)
    OKLAHOMA DEPARTMENT OF                               (W.D. Okla.)
    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.


                            ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and McCONNELL, 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      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Appellant Jimmy Phillips, a prisoner at the Lexington (Oklahoma)

Correctional Facility appearing pro se, appeals from the district court’s May 27,

2003 order denying his motion for a temporary restraining order or preliminary

injunction. 1 He also has filed in this court motions for an injunction pending

appeal and for leave to proceed in this court without 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 outside labor-pool work to cool,

sedentary work. Upon consideration, we grant the motion for leave to proceed

without prepayment of costs and fees, affirm the district court’s order, and deny

the motion for an injunction pending appeal.

      In order to demonstrate his entitlement to an injunction 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 irreparably 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 interest. Homans v. City of



1
       Although appellant requested both a preliminary injunction 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
Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001) (per curiam). In ruling on

appellant’s motion, we make the same inquiry as when we review the district

court’s denial of a preliminary injunction. Id. Thus, we must determine “whether

the district court abused its discretion and whether 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 conclusion of law or where there is no

rational basis in the evidence for the ruling.” Chem. 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 assigned kitchen work or

outside work based on a restriction for “cool, sedentary work only–ongoing.”

R., Doc. 19, Ex. 5. The district court denied his motion for a preliminary

injunction, adopting the magistrate judge’s reasoning that appellant had not

shown that his right to relief was clear and unequivocal. Lexington medical

officials had decided that appellant was not limited 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.




                                            3
      Appellant has not shown to this court that he will be irreparably harmed

absent injunctive relief. In the district court, his allegations that his health will

suffer if he is required to work in the prison kitchen 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 instance.

      In addition, appellant has not shown that he is likely to succeed on appeal.

Although he presented some evidence to the district court 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 relying 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 omitted), and

he has not met the stringent standards required for an 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 disfavored 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). Appellant adopted by reference the


                                           4
arguments he presented in a prior petition for writ of mandamus and in his

objections to the magistrate judge’s report–“so as to not burden this Honorable

Court with academic reading perusal.” Aplt. Opening 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 obligated to continue making payments

until the filing fee is paid in full.

       The judgment of the district court is AFFIRMED. Appellant’s motion for

an injunction pending appeal is denied.



                                                  ENTERED FOR THE COURT
                                                  PER CURIAM




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