Nicklas, et al v. Kelly, et al
MEMORANDUM AND ORDER that Plaintiff's Motion for Temporary Restraining Order 15 is denied; If Plaintiff still demands a preliminary injunction hearing, Plaintiff's counsel shall conduct a telephone conference with opposing counsel and my administrative assistant, Kris Leininger, in order to schedule such hearing. Ordered by Senior Judge Richard G. Kopf. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHELLE NICKLAS, JOHN
ROES (1-50), and JANE ROES (150),
JOE KELLY, individually and in his )
official capacity as the LANCASTER )
COUNTY ATTORNEY, and JOHN )
DOES (1-50), individually and in
his/her/their official capacity,
Plaintiff has filed a Motion for Temporary Restraining Order, or, in the
Alternative, Motion for Preliminary Injunction (Filing 15). Keeping in mind the
factors set forth in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.
1981), the motion shall be denied for three reasons:
Plaintiff has made no showing that she has appealed the denial of her
application to participate in the Lancaster County Adult Diversion
Program pursuant to the Administrative Review Guidelines contained in
the Eligibility Criteria and Program Conditions document.1 (Filing 15,
at CM/ECF p. 17.)
Plaintiff’s attorney was specifically advised by letter dated May 25, 2017, that
Plaintiff’s application to enter the program was denied, that the “alleged facts ma[d]e
this case inappropriate for the diversion program,” and that Plaintiff had the right to
appeal the decision pursuant to the instructions described in the letter.
According to the Eligibility Criteria and Program Conditions document,
the crime with which Plaintiff is charged (child neglect) is considered an
“eligible misdemeanor” to be considered “on a Case-by-Case Basis,”
and the document expressly grants the prosecutor discretion to decide
who may enter the program. (Filing 15, at CM/ECF p. 15 (“The
County/City Attorney reserves the right to consider each case on an
individual basis to determine eligibility.”).)
The Community Corrections Diversion Program Agreement (Filing 15,
at CM/ECF p. 18) was not signed by the “County/City Attorney,” as
explicitly required by the Agreement itself.
IT IS ORDERED:
Plaintiff’s Motion for Temporary Restraining Order (Filing 15) is
If Plaintiff still demands a preliminary injunction hearing, Plaintiff’s
counsel shall conduct a telephone conference with opposing counsel and
my administrative assistant, Kris Leininger, in order to schedule such
DATED this 8th day of November, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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