REPORT AND RECOMMENDATION

SUZANNE MITCHELL, Magistrate Judge.

Plaintiff, appearing pro se, filed an amended complaint under 42 U.S.C. § 1983, Doc. 7, and Chief United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. After numerous rulings, the only remaining Defendants are GEO, Inc. (GEO), the corporate owner of Lawton Correctional Facility (LCF), and Correct Care Solutions (CCS), the private third-party medical care provider for inmates at LCF. Doc. 7, at 2 & Docs. 87-88. Plaintiff's only remaining claim is that GEO and CCS each unconstitutionally delayed Plaintiff's gallbladder surgery while he was housed at LCF. Docs. 87-88.

Now housed at the Oklahoma Department of Corrections' (ODOC) North Fork Correctional Center (NFCC), Doc. 77, and appearing through counsel, Plaintiff seeks declaratory and injunctive relief against NFCC, NFCC Warden Jimmy Martin, NFCC Chief of Security Steve Young, all "NFCC prison officials/employees, ODOC employees, employees of GEO and CCS who work at any prison in Oklahoma, including NFCC, and all those under control of Warden Jimmy Martin and Steve Young." Doc. 122, at 1, 3.

Through the court's CM/ECF system, Plaintiff served Defendants GEO, CCS, and dismissed-party ODOC with his motion. Id. at 25.1 Defendants GEO and CCS have notified the court they waive their right to respond, stating "neither GEO nor CCS have any involvement with the activities at [NFCC]. . . ." Doc. 128. The record does not reflect any attempt by Plaintiff to serve NFCC, Warden Martin, or Chief Young with a copy of his request for injunctive relief.

For the reasons discussed below, the undersigned recommends the court deny the motion.

I. Plaintiff's request for injunctive relief.

Plaintiff seeks a court order allowing his attorney "access to his current eight clients and all future clients that currently are incarcerated at NFCC in Sayre, Oklahoma, to visit per ODOC policy and not the interoffice memorandum drafted by Warden Martin, so that [he] may competently represent clients at NFCC and any and all facilities in Oklahoma that house prisoners at a facility operated by ODOC and/or GEO and CCS or any and all facilities that house prisoners in Oklahoma where any of the above mentioned entities have any interest." Doc. 122, at 1. Plaintiff alleges officials at NFCC have harassed his attorney and the attorney's assistant and Warden Martin has drafted a memorandum which restricts the attorney's access to clients. Id. at 2-3. On behalf of his attorney, Plaintiff seeks: (1) access to clients per ODOC policy; (2) private visitation rooms; and (3) permission to bring a "portable printer/scanner" into the prisons. Id. at 3, 11.

II. The standard for injunctive relief.

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). For entry of a preliminary injunction, the movant generally must show four elements: "(1) a substantial likelihood he will prevail on the merits; (2) irreparable harm unless the restraining order is issued; (3) outweighing of the harm from the threatened injury against the adversary's harm from the preliminary injunction; and (4) the absence of an adverse impact on the public interest." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). A preliminary injunction is appropriate only when the movant's right to relief is clear and unequivocal. Id.

Plaintiff's requested preliminary injunction is characterized as "mandatory" because it would affirmatively require the nonmovants to act in a particular way and, as a result, would place this Court in a position of ongoing supervision. Schrier v. Univ. of Colo., 427 F.3d 1253, 1261 (10th Cir. 2005); Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). Plaintiff must therefore make a "heightened showing" on all four required elements and a "strong showing" both with regard to likelihood of success on the merits and with regard to the balance of harms in order to obtain this disfavored relief. See Little, 607 F.3d at 1251; Schrier, 427 F.3d at 1261. The request "must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course." Schrier, 427 F.3d at 1259 (internal quotation marks omitted).

III. Mootness as it relates to the remaining parties.

Though Plaintiff's motion is primarily focused on officials at ODOC and NFCC, he does generally request an injunction allowing his attorney to "competently represent clients" at any "facility operated by . . . GEO and CCS." Doc. 122, at 1. But Plaintiff is not currently housed at a GEO-owned facility and CCS does not own or operate prisons. Accordingly, Plaintiff's request for injunctive relief against these parties is moot because both would be powerless to provide Plaintiff any effective relief. See, e.g., Griffin v. Kastner, 507 F. App'x 801, 802 (10th Cir. 2013) (holding plaintiff's request for injunctive relief moot because once the inmate had been transferred from the FTC to another federal prison: "FTC warden Paul Kastner no longer has custody of Mr. Griffin and is therefore powerless to provide any relief the district court might order"). Further, Plaintiff lacks standing to seek injunctive relief on behalf of other prisoners. See, e.g., Big Elk v. Bd. of Cnty. Comm'rs of Osage Cty., 3 F. App'x 802, 806 (10th Cir. 2001) ("Because the plaintiffs did not themselves have standing to enjoin the sheriff's department's policy, they cannot bring a class action on behalf of others seeking that same relief."); Pope v. Ward, No. 95-7129, 1996 WL 460023, at *2 (10th Cir. Aug. 14, 1996) (unpublished op.) (holding "plaintiffs lack standing to bring a conditions of confinement claim for injunctive relief on behalf of Pope and the other inmates"). So, the court should deny Plaintiff's request for injunctive relief as it implicates Defendants GEO and CCS.

IV. Plaintiff's failure to serve non-parties NFCC, Warden Martin, and Chief Young.

At its heart, Plaintiff's motion seeks to enjoin non-parties NFCC, Warden Martin, and Chief Young. However, Rule 65 is clear: "The court may issue a preliminary injunction only on notice to the adverse party." Fed. R. Civ. P. 65(a)(1). And, while the court may issue a temporary restraining order without notice, it may do so "only if" "the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Id. 65(b)(1)(B). Plaintiff did not serve NFCC, Warden Martin, or Chief Young with his motion for injunctive relief and his attorney has not certified in writing any efforts made to give these non-parties notice or explain why it should not be required. Accordingly, the court should deny Plaintiff's motion for injunctive relief as to NFCC, Warden Martin, and Chief Young on this ground.

V. Plaintiff's failure to allege active concert or participation.

Denial is also warranted for ODOC, NFCC, Warden Martin, and Chief Young because Rule 65 permits a court to bind only: (1) the parties, (2) the parties' officers, agents, or employees; or (3) non-parties "who are in active concert or participation" with the parties or parties' agents. Id. 65(d)(2)(A)-(C). Plaintiff has failed to establish how ODOC, its prison NFCC, or its employees Warden Martin and Chief Young have been in active concert or participation with the only current parties—GEO and CCS. Indeed, it is allegedly Warden Martin, and not GEO, who has created the challenged attorney visitation policy. Logically, then, the court cannot find ODOC, NFCC, Warden Martin or Chief Young have acted in concert with GEO or CCS to restrict attorney access. Consequently, Plaintiff has not established entitlement to an injunction against the non-parties. See Yost v. Stouffer, No. CIV-15-783-F, 2017 WL 4324835, at *8 (W.D. Okla. Aug. 24, 2017) (unpublished report & recommendation) ("Plaintiff presents no factual allegations that establish that [the non-parties] are engaged in the requisite active concert or participation with Defendant. Plaintiff thus has not shown that he is entitled to a preliminary injunction against such nonparties."), adopted, 2017 WL 4324539 at 1* (W.D. Okla. Sept. 28, 2017) (unpublished order).

VI. Plaintiff's failure to seek intermediate relief of the same character which may be finally granted.

Finally, the court should deny injunctive relief because Plaintiff's request for injunctive relief has no relationship to his underlying claims.

In his amended complaint, Plaintiff alleged deliberate indifference to his medical needs and complained about food services at LFC. Doc. 7, passim. Now, his only remaining claim is that GEO and CCS each unconstitutionally delayed Plaintiff's gallbladder surgery while he was housed at LCF. Docs. 87-88.

In his request for injunctive relief, Plaintiff asks the court to allow his attorney access to him and other inmates housed at NFCC and other ODOC facilities. Doc. 122. But a preliminary injunction grants intermediate relief of "the same character as that which may be granted finally." See De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). Thus, "the movant must establish `a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint.'" Little, 607 F.3d at 1251 (citation omitted). "If he fails to do so, the court is powerless to enter a preliminary injunction." McMiller v. Corrs. Corp. of Am., No. CIV-14-161-W, 2016 WL 1043679, at *2 (W.D. Okla. Feb. 16, 2016) (unpublished report & recommendation), adopted, 2016 WL 1045567 (W.D. Okla. Mar. 15, 2016) (unpublished order). Because Plaintiff has not established the necessary relationship between his underlying claims and his request for injunctive relief, the court should dny the latter.

VII. Recommendation and notice of right to object.

As discussed above, Plaintiff has failed to establish he is entitled to injunctive relief against any party or non-party and the undersigned recommends the court deny his motion, Doc. 122.

The undersigned advises the parties of their right to file an objection to the report and recommendation with the Clerk of this Court by the 16th day of November, 2017, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make a timely objection to the report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

This report and recommendation does not terminate the court's referral to the undersigned Magistrate Judge.