LeFever v. Nebraska Department of Correctional Services et al

Filing 30

MEMORANDUM AND ORDER Plaintiff's Motion to Supplement, Filing No. 27 , is granted. Plaintiff's emergency motion for a temporary restraining order and preliminary injunction, Filing No. 24 , his motion for a hearing on the temporary restra ining order and preliminary injunction motion, Filing No. 28 , and his motion for service, Filing No. 29 , all are denied without prejudice. The case shall progress consistent with this Memorandum and Order. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LUKE LEFEVER,

Plaintiff,

8:23CV187

vs.
MEMORANDUM AND ORDER
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, in their
Official and Individual capacities; SCOTT
FRAKES, in their Official and Individual
capacities; DR. DEOL, in their Official and
Individual capacities; WARDEN
WASAMER, in their Official and Individual
capacities; WARDEN GABLE, in their
Official and Individual capacities;
CRUNSHANK, A.W., in their Official and
Individual capacities; KEVIN WILKEN,
P.L.I.O, in their Official and Individual
capacities; SARA ALLEN, D.O.N., in their
Official and Individual capacities;
OLTROGGE, U.M., in their Official and
Individual capacities; DOMINO, U.M., in
their Official and Individual capacities;
SCHULTS, C.O., in their Official and
Individual capacities; DE LOS SANTOS,
C.O., in their Official and Individual
capacities; and UNKNOWN POLICY
WRITERS, in their Official and Individual
capacities;

Defendants.

This matter is before the Court on Plaintiff’s motion for leave to supplement his
complaint to allow consideration by this Court of the factual allegations alleged in the

supplement along with those alleged in his operative complaint, Filing No. 27, his motion
for service, Filing No. 29, a motion for restraining order and injunction, Filing No. 24, and
a notice for hearing (which has also been filed as a motion) on the motion for restraining
order and injunction, Filing No. 28.
Plaintiff’s motion to supplement, Filing No. 27, is granted. The factual allegations
contained in the supplement shall be considered along with the operative complaint on
initial review by this Court.
Plaintiff’s motion for service, however, is premature. This is so as while Rule 4 of
the Federal Rules of Civil Procedure requires plaintiffs to serve each defendant with a
summons and a copy of the complaint, “district courts cannot issue summonses in in
forma pauperis prisoner cases until after screening the complaint for frivolousness and
other defects under 28 U.S.C. §§ 1915(e) and 28 U.S.C. § 1915A(b).” See Jackson v.
Herrington, 393 F. App'x 348, 353 (6th Cir. 2010) (citation omitted). Although the Court
granted Plaintiff leave to proceed in forma pauperis, Filing No. 11, and the initial partial
filing fee has been paid, see Text Entry dated June 15, 2023, the Court has not yet
performed an initial review of the Complaint. As such, Plaintiff’s motion for service, Filing
No. 29, is denied without prejudice as premature.
Plaintiff also filed a motion for an emergency injunction and restraining order,
seeking a restraining order and preliminary injunction to enjoin defendants Nebraska
Department of Correctional Services, Director Jeffreys, Warden Boyd, and defendant
Neujahr from the “denial of Constitutional Access to the Courts and Disability

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Discrimination used as Retaliation and deprivation.” Filing No. 24. He also moves this
Court to hold a hearing on his motion for restraining order and injunction. Filing No. 28.
Preliminary injunctive relief is an extraordinary remedy never awarded as of right.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Reviewing Courts “must
balance the competing claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief.” Amoco Prod. Co. v. Village of Gambell,
480 U.S. 531, 542 (1987). “[C]ourts of equity should pay particular regard for the public
consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at
24. To obtain a preliminary injunction, a plaintiff must establish (1) that he is likely to
succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction
is in the public interest. Id. at 20.
Here, Plaintiff's Motion fails as while he argues that he is receiving unequal access
to prison law facilities, he has not established any of the elements that would warrant
preliminary injunctive relief. Additionally, this Court has not yet determined if this matter
may proceed to service of process as an initial review of the Plaintiff’s operative complaint
has yet to be performed. For these reasons the Court will, therefore, deny Plaintiff's
Motion for a temporary restraining order and preliminary injunction, Filing No. 24, and
motion for hearing regarding the same, Filing No. 28, without prejudice.
The next step in Plaintiff's case will be for the Court to conduct an initial review of
Plaintiff's claims as set forth in his complaint and supplement to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A.
The Court will conduct this initial review in due course.

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IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion to Supplement, Filing No. 27, is granted.

2.

Plaintiff’s emergency motion for a temporary restraining order and

preliminary injunction, Filing No. 24, his motion for a hearing on the temporary restraining
order and preliminary injunction motion, Filing No. 28, and his motion for service, Filing
No. 29, all are denied without prejudice.
3.

The case shall progress consistent with this Memorandum and Order.

Dated this 28th day of August, 2024.

BY THE COURT:

Joseph F. Bataillon
Senior United States District Court

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