LeFever v. Nebraska Department of Correctional Services et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LUKE LEFEVER,
Plaintiff,
vs.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, in their
Official and Individual capacities; A.W.
CRUICKSHANK, in their Official and
Individual capacities; KEVIN
WILKEN, P.L.I.O, in their Official and
Individual capacities; C.O. SCHULTS,
in their Official and Individual
capacities; and C.O. DE LOS SANTOS,
in their Official and Individual
capacities;
Defendants.
8:23CV187
MEMORANDUM AND ORDER
Plaintiff filed a second amended complaint on July 2, 2025. Filing 29. He
is incarcerated within the Reception and Treatment Center (RTC) of the
Nebraska Department of Correctional Services (NDCS). The Court now
conducts an initial review of Plaintiff’s claims to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b).
I. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e).
The Court must dismiss a complaint or any portion of it that states a frivolous
or malicious claim, that fails to state a claim upon which relief may be granted,
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or that seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or
grounds for a claim, and a general indication of the type of litigation involved.’”
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)
(quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). Plaintiffs
must set forth enough factual allegations to “nudge[ ] their claims across the
line from conceivable to plausible,” or “their complaint must be dismissed.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”).
“A pro se complaint must be liberally construed, and pro se litigants are
held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at
849 (internal quotation marks and citations omitted). This means that “if the
essence of an allegation is discernible, even though it is not pleaded with legal
nicety, then the district court should construe the complaint in a way that
permits the layperson’s claim to be considered within the proper legal
framework.” Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004). However, even
pro se complaints are required to allege facts which, if true, state a claim for
relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir.
1980).
II. SUMMARY OF COMPLAINT
At the time of the events discussed in Plaintiff’s second amended
complaint, he was incarcerated at the Tecumseh State Correctional Institution
(TSCI). Plaintiff sues NDCS, and the following TSCI employees: A,W.
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Cruickshank,1 Associate Warden; Kevin Wilken, Prison Litigation and
Information Officer (PLIO); and Correctional Officers Schults and De Los
Santos. Plaintiff alleges as follows.
A. Lincoln County, Nebraska Lawsuit (Claims 1 and 3)
On March 20, 2021, Plaintiff sent an “Inmate Interview Request” (IIR)
to Wilken, notifying him of a telephonic hearing scheduled for April 5, 2021, in
Plaintiff’s civil case against the State of Nebraska and the Nebraska State
Patrol pending in the Lincoln County District Court, Case No. CI 20-781. Filing
39 at 2-3. As the PLIO for TSCI, Wilken was responsible for arranging and
securing Plaintiff’s attendance at all telephonic and video-conferencing court
appearances. Id. at 1-2. Wilken confirmed the hearing was already on his
calendar. Id. at 2.
On April 5, 2021, no one came to get Plaintiff so he could attend the
hearing. As a result of Plaintiff’s absence at the hearing, the court dismissed
his motion. Id. at 2. By letter, Wilken acknowledged that he failed to make
Plaintiff available at the hearing, explaining he called the clerk of the court
shortly thereafter and was told the judge dismissed Plaintiff’s motions during
the hearing. Id. at 2.
On October 4, 2021, Plaintiff handed Schults a sealed envelope clearly
marked legal mail to deliver to the mail room and send out the following day.
Plaintiff explained the mailing was a Notice of Appeal and time sensitive, with
a filing deadline of October 8, 2021. Schults knew Plaintiff was suing the State
of Nebraska and NSP. Schults accepted the legal mail and assured Plaintiff it
would be delivered to the mail room. But instead of doing so, she left the
envelope on the SNF counter overnight. When Plaintiff emerged from his cell
1 The Court has corrected the spelling of “Crunshank” to “Cruickshank.”
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the following day, he saw the envelope on the counter. When he confronted the
issue, he was instructed to file a grievance.
The Lincoln County District Court received the notice of appeal on
October 12, 2021. On October 20, 2021, Plaintiff received a notice from the
Nebraska Court of Appeals stating his case was "dismissed as untimely."
On October 26, 2021, Plaintiff received a response to his grievance which
stated his legal mail was sent in outgoing institutional mail on October 6, 2021.
The response did not address the improper handling of legal mail at SNF
housing unit. Plaintiff filed the second grievance and received no response. He
requested a copy of the grievance to no avail.
On October 27, 2021, Plaintiff moved the Nebraska Court of Appeals to
reconsider and reinstate the dismissal of his appeal, explaining the delay was
out of his control. The Nebraska Court of Appeals directed Plaintiff to file a
motion in the Lincoln County District Court. He did so on December 29, 2021.
On February 1, 2022, Plaintiff received an "Order Spreading the Mandate" in
Lincoln County District Court Case No. CI 20-781, which ended Plaintiff’s civil
action. Plaintiff alleges the negligence of NDCS and Schults violated his
constitutional right of access to the courts and is part of a pattern of such
denials. He further believes NDCS, Wilken, and Schults denied his access to
the courts to make sure he did not prevail in a case against the State of
Nebraska and NSP.
B. Law Library Access (Claim 2)
Plaintiff could access typewriters and internet legal research tools only
at the law library, and in 2021, he needed significant library time because he
had two civil and two criminal cases pending, and without fingers, it was
difficult to write notes of legal research and type. Prior to July 29, 2021,
Plaintiff could use the general population law library for four hours every
morning from Monday through Thursday.
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Between July 29, 2021, and August 15, 2021, Plaintiff’s access to a law
library was limited to one hour a week. Id. at 3-4. Plaintiff filed a grievance.
On August 31, 2021, the day after NDCS responded to the grievance,
Cruickshank informed Plaintiff that the Skilled Nursing Facility (SNF) was
now going to be classified as Protective Custody (PC), the prison’s general
population would not be allowed in the SNF, and Plaintiff would not be able to
use the general population law library. Under the new structure, effective
September 1, 2021, Plaintiff would need to use the PC law library. By
restricting Plaintiff to the PC library hours, Plaintiff’s library access was
automatically cut in half, and the PC law library was typically not open even
during those hours. This change in library access targeted Plaintiff because he
was the only SNF inmate who used the library.
Plaintiff wrote another grievance complaining he needed more access to
the law library due to his disabilities and pending active cases. In response,
Cruickshank advised Plaintiff that effective September 20, 2021, his library
access would be restored to the location and hours available before July 29,
2021. Id. at 4. But when Plaintiff returned to the general population law
library on September 20, 2021, the librarian stated Cruickshank had limited
Plaintiff’s access to two hours a day, effectively limiting Plaintiff’s access to
half of what he had before. The librarian stated she would ask Cruickshank to
restore Plaintiff’s law library time to four hours a day, four days a week.
Plaintiff filed another grievance on September 20, 2021, complaining
that his law library access was not fully restored. NDCS responded on October
20, 2021, stating, "If you still feel this is not enough time, you’ll need to send
your information to the librarian with your court cases and your additional
request of time." Id. at 5. Plaintiff did so, but Cruickshank would not grant
Plaintiff additional time to use the law library. Plaintiff alleges Cruickshank
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engaged in disability discrimination by refusing to accommodate Plaintiff’s
disabilities and did so in retaliation for Plaintiff filing grievances. Id. at 4-5.
C. Confiscated Book (Claim 4)
On September 28, 2021, De Los Santos confiscated a book from Plaintiff’s
incoming mail. The book was purchased by Plaintiff and entitled "Prisoner
Self-Help Litigation Manual." When Plaintiff received the "Notice of Held
Mail" from the NDCS mail staff, he immediately filed a grievance to obtain the
book. He was offered two options: have it destroyed or donate it to the library.
D. Ellis County, Kansas Lawsuit (Claim 5)
In early 2022, Plaintiff was the named defendant in a civil action filed in
the District Court of Ellis County, Kansas. Plaintiff claimed the action was
frivolous and he demanded attorney fees. On January 16, 2022, he received
notice of a hearing scheduled for February 14, 2022, to consider his attorney
fee request. Plaintiff sent an IIR with the accompanying Zoom meeting
instructions to Wilken to schedule Plaintiff’s attendance at the hearing, and
he sent a letter to the District Court of Ellis County, Kansas detailing his
intent to attend. However, Plaintiff did not attend the hearing because Wilken
never showed up to bring him to the Zoom hearing location. As a result, the
case was dismissed. Plaintiff immediately submitted a grievance. NDCS’s
response, received on April 8, 2022, stated Wilken denied receiving any IIRs
from Plaintiff for attendance at court hearings.
Wilken consistently secures Plaintiff’s attendance at criminal hearings,
but not civil actions. Plaintiff believes NDCS and Wilken intentionally
impeded and frustrated Plaintiff’s access to the Kansas court. Id. at 3.
E. Legal Mail Policy (Claim 6)
On April 18, 2022, NDCS changed its policy on handling privileged mail.
Under the new policy, mail staff opens legal mail, makes copies on an unsecure
portable copier machine, and then destroys the originals. Plaintiff believes the
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new policy exposes his legal mail to mail staff and since NDCS’ data storage is
insufficiently secure, access by cyberattack. He submitted a grievance,
claiming the policy change violates his Sixth Amendment right to counsel and
the attorney-client privilege. He claims legal mail must be opened in front of
the inmate, inspected for contraband, and then physically handed to the
inmate. Plaintiff claims the new policy is over-reach and violates clearly
established constitutional rights for no legitimate penological purpose.
III. DISCUSSION
Plaintiff’s claims have a common theme; i.e., they all have some
relationship to participating in litigation. But Plaintiff raises no factual
allegations “suggesting that there was a mutual understanding among the
conspirators to take actions directed toward an unconstitutional end.” Duvall
v. Sharp, 905 F.2d 1188, 1189 (8th Cir. 1990) (citing Haley v. Dormire, 845 F.2d
1488, 1490 (8th Cir. 1988)). So, even liberally construing the missed hearing
and untimely appeal in the Lincoln County case (identified as Claims 1 and 3
in the second amended complaint) as properly joined, Plaintiff’s complaint
raises five incidents or complaints which do not arise from the same
transaction or occurrence and do raise any question of law or fact common to
all defendants. As such, they are improperly joined in this lawsuit. See Fed. R.
Civ. P. 20. As stated in the Court’s prior order:
Plaintiff is cautioned that if his second amended complaint
continues to include improperly joined claims, this Court will only
screen the first properly joined set of claims and shall dismiss or
sever the rest into a separate action or actions and assess
individual filing fees for each severed case. See Bailey v. Doe, No.
11-2410, 2011 WL 5061542 (8th Cir. Oct. 26, 2011) (unpublished
opinion) (affirming a trial court's decision to sever a prisoner's
complaint into three separate actions and obligating him to pay
three separate filing fees).
Filing 33 at 28-29.
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A. Claims 1 and 3
Consistent with the Court’s prior ruling, this memorandum will address
only the first set of claims that are properly joined; that is the dismissal of his
motion in the Lincoln County District Court, followed by the dismissal of his
appeal of that case. As to this claim, Plaintiff has raised allegations against
only the NDCS, Wilken, and Schults, and Plaintiff’s claims against the
remaining defendants, Cruickshank and De Los Santos must be dismissed.
1. Official Capacity Claims
Plaintiff requests an award of damages. As to the Lincoln County
District Court case, he names NDCS, Wilken, and Schults, in their official or
individual capacities, as defendants.
The State of Nebraska, and NDCS as an arm or agency of the State, are
not subject to a suit for damages under § 1983. Yanga v. Nebraska Dep't Corr.
Servs., No. 8:19CV420, 2020 WL 4784723, at *2 (D. Neb. Aug. 18, 2020).
Wilken, who allegedly failed to bring Plaintiff to his Lincoln County District
Court hearing, and Schults, who allegedly failed to promptly mail the notice of
appeal, are employees of the State of Nebraska. A suit against a public
employee in his or her official capacity is a suit against the public employer.
Campbell v. State of Iowa, Third Judicial Dist. Dept. of Corr. Serv., 702 F.3d
1140, 1141 (8th Cir. 2013) (quoting Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir.1999)). So, Plaintiff’s claims against Wilken and Schults,
in their official capacities, are claims against the State of Nebraska.
Suits for money damages against the state or its agencies are barred by
the Eleventh Amendment. Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th
Cir. 2007) (holding the Eleventh Amendment bars suit against a state agency
for any kind of relief); Nix v. Norman, 879 F.2d 429, 431-32 (8th Cir. 1989)
(holding a suit brought solely against a state or state agency is proscribed by
the Eleventh Amendment). And the Eleventh Amendment bars claims for
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damages by private parties against state employees sued in their official
capacities. See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir.
1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th
Cir. 1995); Novascone v. Nebraska Dep’t of Corr. Servs., No. 8:19CV201, 2019
WL 6307565, at *2 (D. Neb. Nov. 25, 2019) (dismissing section 1983 suit for
money damages against the NDCS director, in his official capacity, under
Eleventh Amendment); Reising v. Lewien, No. 8:18CV352, 2019 WL 1585142,
at *3 (D. Neb. Apr. 12, 2019) (holding section 1983 suit for money damages
against unit administrator of CCC and OCC warden, in their official capacities,
was barred by the Eleventh Amendment).
Therefore, Plaintiff’s claims against NDCS, and Wilken and Schults, in
their official capacities, must be dismissed as barred by the Eleventh
Amendment.
2. Individual Capacity Claims
As to Wilken and Schults, in their individual capacity, the Court’s prior
opinion instructed Plaintiff “to prove actual injury resulting from an alleged
lack of meaningful access to the courts, a plaintiff must ‘demonstrate that a
nonfrivoulous legal claim had been frustrated or was being impeded.’” Id. at 24
(quoting Lewis v. Casey, 518 U.S. 343, 353 (1996) (emphasis added)). Plaintiff’s
second amended complaint, once again, “provides no information regarding the
nature of case that was dismissed when Wilken allegedly failed to get Plaintiff
to the hearing,” (id.), or any facts indicating his attempted appeal nonfrivolous.
Plaintiff has failed to state a claim against Wilken, in his individual capacity,
regarding the missed Lincoln County District Court hearing, and Schults, who
allegedly failed to mail his notice of appeal.
B. Claims 2, 4, 5, and 6
Claims 2 (Library Access), 4 (Confiscated Book), 5 (Ellis County, Kansas
lawsuit), and 6 (legal mail policy) were not properly joined and are subject to
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dismissal or severance. As to each of these claims, the statute of limitations
has expired. So, if the Court dismissed these claims, Plaintiff would be barred
from pursuing them in newly filed lawsuits. If they are severed from this case
into four separate lawsuits, they would be deemed filed as of July 2, 2023 and
therefore not barred by the statute of limitations, but Plaintiff would be
required to pay a filing fee of $405,00 (by installment payments form his trust
account) for each of the four lawsuits. Under the circumstances, the decision of
whether to dismiss or, in the alternative, to sever a claim into a separate
lawsuit and incur the filing fee expense, should be made by Plaintiff. To be
clear, Plaintiff can choose to pursue some of the four claims and dismiss others.
So, as to each of Claims 2, 4, 5, and 6, Plaintiff must specifically advise the
Court on whether he wants the claim dismissed or severed into a separate
lawsuit with associated filing fees.
C. Motion for Appointment of Counsel
Plaintiff has moved for appointment of counsel. Filing 34. “There is no
constitutional or statutory right to appointed counsel in civil cases.” Phillips v.
Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). A district court “may
request an attorney to represent” an indigent civil litigant, 28 U.S.C. §
1915(e)(1), but it has a “good deal of discretion” in deciding whether to do so,
Chambers v. Pennycook, 641 F.3d 898, 909 (8th Cir. 2011). “Relevant criteria
for determining whether counsel should be requested include the factual and
legal complexity of the case, the plaintiff’s ability to investigate the facts and
to present the claims, and the presence or absence of conflicting testimony.”
Recca v. Omaha Police Dep’t, 859 F. App’x 3, 4 (8th Cir. 2021) (citing Davis v.
Scott, 94 F.3d 444, 447 (8th Cir. 1996)).
The Court has carefully reviewed the record and finds there is no current
need to appoint counsel. As such, Plaintiff’s motion for appointment of counsel
will be denied without prejudice to reassertion. The Court will, however,
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“continue to be alert to the possibility that, because of procedural complexities
or other reasons, later developments in the case may show either that counsel
should be appointed, or that strict procedural requirements should, in fairness,
be relaxed to some degree.” Williams v. Carter, 10 F.3d 563, 567 (8th Cir. 1993).
IV. CONCLUSION
The Court is required to dismiss a complaint, or any portion of it, that
states a frivolous or malicious claim, fails to state a claim upon which relief
may be granted, or seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B). Plaintiff’s claims for denial of access to
the court because of the missed hearing and untimely appeal of the Lincoln
County case (identified as Claims 1 and 3 in the second amended complaint)
fail to state a claim upon which relief may be granted. As to Plaintiff’s
remaining claims, Plaintiff will be required to notify the Court, as to each
claim, whether the claim should be dismissed or severed into a separate
lawsuit.
Accordingly,
IT IS ORDERED:
1. Claims 1 and 3 of Plaintiff’s complaint are dismissed for failure to
state a claim.
2. As to Claims 1 and 3, a separate judgment will be entered.
3. Plaintiff’s motion for appointment of counsel, Filing 34, is denied.
4. The Clerk of Court shall change the Court’s docket to correct the
spelling of the defendant, A. W. Crunshank to A. W. Cruickshank
5. Plaintiff shall have until March 16, 2026, to file a motion to sever
any of Claims 2, 4, 5, and 6 of his second amended complaint into separate
lawsuits, each claim being assigned a separate case number and each requiring
a $405 filing fee. If Plaintiff does not file a motion to sever on or before March
6, 2026, Claims 2, 4, 5, and 6 will be dismissed. If Plaintiff files a motion to
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sever on or before March 16, 2026, the motion must identify, by claim number,
each claim to be severed into a separate lawsuit. Any claim not timely
identified to be severed will be dismissed.
Dated this 13th day of February, 2026.
BY THE COURT:
_________________________________
John M. Gerrard
Senior United States District Judge
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