Nickman v. Zarraga et al

Filing 32

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to File a Second Amended Complaint (Filing No. 29 ) is denied. Plaintiff's Motion to Compel (Filing No. 28 ) is denied without prejudice to reassertion. Plaintiff's Motion for Restraining Order (Filing No. 30 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSHUA M. NICKMAN,
Plaintiff,
V.
JUAN M. ZARRAGA, official
capacity, SHELBY L. RAWLINGS,
official capacity, ANDREW L.
MCLEAN, official capacity, COLTON
J. GUERRERO, official capacity,
MICHAEL TUBBS, official capacity,
JESUS J. RAMIREZ, official capacity,
JAIME LYN CRAFT, official capacity,
JESSICA M. STROUP, official
capacity, SCOTT B. ANDREALA,
official capacity, ERIC JON LITTLE,
official capacity, JONATHAN R.
TRIPP, official capacity, AARON
CRAY, official capacity, TODD
BAHENSKY, official capacity, LACY,
official capacity, HALL COUNTY
CORRECTIONS, official capacity, and
J. JONES, official capacity,
Defendants.

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8:16CV262

MEMORANDUM
AND ORDER

Plaintiff instituted this action on June 13, 2016, alleging he was assaulted by
jail staff while he was an inmate at Hall County Corrections. (Filing No. 1.) Upon
initial review, the court determined that Plaintiff’s Complaint failed to state
cognizable claims. (Filing No. 21.) However, Plaintiff was granted leave to file an
amended complaint. Plaintiff filed an amended complaint on September 19, 2016.
(Filing No. 24.)

On October 12, 2016, the court reviewed Plaintiff’s Amended Complaint and
determined that it could proceed to service of process as to Plaintiff’s Eighth
Amendment excessive force claims and state law claims against certain defendants
(Filing No. 25.)
On October 31, 2016, Plaintiff moved to file a second amended complaint.
(Filing No. 29.) Plaintiff has already been given leave to file an amended complaint
and Plaintiff’s Motion for Leave to File an Amended Complaint (Filing No. 29) does
not identify any reason why further amendment is necessary. Therefore, Plaintiff’s
motion will be denied.
Plaintiff has also requested that the court provide him with Defendants’ last
known addresses so that he can complete service of process. The court previously
directed the clerk of court to obtain the addresses of these individuals, complete and
issue summonses, and deliver the necessary documents to the Marshals Service for
service of process. (Filing No. 27.) Therefore, Plaintiff’s Motion to Compel (Filing
No. 28) will be denied without prejudice to reassertion in the event future problems
with service arise.
Additionally, Plaintiff has filed a motion requesting a restraining order (Filing
No. 30.) Plaintiff asserts that he has a court hearing on November 9, 2016, and that
he will be held in Hall County Corrections before his court appearance. Plaintiff is
worried that staff will retaliate against him for filing this lawsuit. “[W]hether a
preliminary injunction should issue involves consideration of (1) the threat of
irreparable harm to the movant; (2) the state of balance between this harm and the
injury that granting the injunction will inflict on other parties litigant; (3) the
probability that movant will succeed on the merits; and (4) the public interest.”
Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981).
Plaintiff has failed to assert any facts showing a likelihood that any defendant
will retaliate against him for filing this action. Plaintiff only states that he “has heard
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from several people” that Defendants brag about how they “jumped” him. (Filing No.
30 at CM/ECF p. 2.) Plaintiff does not identify who told him about Defendants’
alleged statements, when he was told about the statements, or when the statements
were supposedly made. In short, Plaintiff has not shown that he faces a threat of
irreparable harm.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s Motion for Leave to File a Second Amended Complaint
(Filing No. 29) is denied.

2.

Plaintiff’s Motion to Compel (Filing No. 28) is denied without prejudice
to reassertion.

3.

Plaintiff’s Motion for Restraining Order (Filing No. 30) is denied
without prejudice to reassertion.

DATED this 1st day of November, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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