Smith v. Jeffreys et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEVIN G. SMITH, o/b/o other similarly
situated individuals;
Plaintiff,
vs.
ROB JEFFREYS, Nebraska Dept. Corr.
Service Director; STEVE FANNON, The
Work Ethic Camp Warden; and DAWN
SHEAFFER, The Work Ethic Camp Staff
Worker;
Defendants.
8:25CV389
MEMORANDUM AND ORDER
Plaintiff Kevin G. Smith (“Plaintiff”), a prisoner currently confined in the Nebraska
State Penitentiary under the custody of the Nebraska Department of Correctional
Services (“NDCS”), see Filing No. 8, filed a Complaint on June 11, 2025, Filing No. 1. He
has been given leave to proceed in forma pauperis. Filing No. 7. The Court now conducts
an initial review of Plaintiff’s Complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e) and 1915A. For the reasons that follow, Plaintiff’s
Complaint will be dismissed without prejudice for failure to state a claim upon which relief
may be granted.
I. SUMMARY OF COMPLAINT
When Plaintiff filed his Complaint, he was confined in the NDCS’ Work Ethic Camp
(“WEC”) in McCook, Nebraska. Plaintiff purports to bring this action on behalf of himself
and “other similarly situated individuals,” Filing No. 1 at 1, against NDCS Director Rob
Jeffreys (“Jeffreys”), WEC Warden Steve Fannon (“Fannon”), and WEC Staff Worker
Dawn Sheaffer (“Sheaffer”) (collectively “Defendants”) in their individual capacities and
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against Jeffreys and Fannon in their official capacities as well, Id. at 2–3. Plaintiff asserts
violations of his Fifth, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983,
as well as state statutory and constitutional violations. Id. at 3.
Plaintiff alleges that since his placement at the WEC and through the time he filed
his Complaint, “Defendants collectively and in-concert denied, refused, and rejected
plaintiff’s requests to access law library, obtain legal materials, prepare and draft legal
correspondences (allowed by NDCS Policy)[ and] invaded plaintiff’s right to legal privacy
of his legal mail, notwithstanding plaintiff’s grievance and complaints to NDCS officials.”
Id. at 10. Plaintiff states he had litigation already pending when he came to the WEC,
namely a case in this Court at 8:23-cv-1561 and a Nebraska Court of Appeals case, A-24-
386,2 and Plaintiff immediately initiated a request to access the WEC law library upon his
inception at the WEC, but “[t]he access took weeks . . . and nearly every week, even
now[,] has been dilatory.” Id. at 4.
Plaintiff submitted many “kite requests” to Sheaffer for law library access, but she
often failed to schedule Plaintiff for the library because “she would take the rest of days
off early or express she ‘forgot’ or ‘got too busy.’” Id. at 8 (punctuation corrected).
Sheaffer also would routinely not provide Plaintiff with his requested legal copies as she
“promised and affirmed,” and her delay in providing copies “hindered plaintiff from
submitting his legal documents/mail to the courts, his attorney, and parole board.” Id.
1 The Court takes judicial notice of its records in Smith v. Eberhardt, et al., No. 8:23-cv-156 (D. Neb.). The
Court can sua sponte take judicial notice of its own records and files, and facts which are part of its public
records. United States v. Jackson, 640 F.2d 614, 617 (8th Cir. 1981).
2 This Court has been afforded access to the computerized record keeping system for the Nebraska state
courts. The Court takes judicial notice of the Nebraska Court of Appeals appellate case records related to
this case in A-24-386. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take
judicial notice of judicial opinions and public records). Nebraska's judicial records may be retrieved on-line
through the JUSTICE site, https://www.nebraska.gov/justice/case.cgi.
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Sheaffer, against NDCS policy, denied Plaintiff use of the law library typewriter to type a
letter to the Nebraska Board of Parole and, “possibly at the behest of defendant Fannon,
sporadically denied and refused plaintiff’s access to WEC’s law library and legal materials
(i.e. legal justice forms) for days on [end]” and sometimes a week or more. Id. at 8–9
(punctuation corrected).
Plaintiff submitted numerous kite requests and grievances to Fannon “regarding
his needs and requests to access the law library,” but Fannon “failed to instruct, direct, or
otherwise implore defendant Sheaffer to provide plaintiff legal access to WEC law library
via sufficient means (more than once a week/one hour a day).” Id. at 6 (punctuation
corrected). Fannon “expressed his opinions and responses to plaintiff’s submitted
grievances, but never any resolutions.” Id. Fannon also “made promises to afford plaintiff
more and extra legal library access (more than the one hour stipend), however, to no
avail.” Id. Plaintiff further alleges that Fannon failed to ensure that WEC mailroom staff
promptly and properly handled Plaintiff’s legal mail “using certified and registered postal
cards” as Plaintiff “discovered that his legal mail took 10 days from Omaha to McCook[,]
15 days from McCook to U.S. Capitol[,]” and the return receipts were deficiently handled
and not always returned to Plaintiff. Id. at 6–7. Fannon also “failed to train, instruct, or
admonish” WEC mailroom staff after they “opened plaintiff’s legal mails (more than once)”
outside of Plaintiff’s presence contrary to NDCS policy. Id. at 7.
Plaintiff alleges Jeffreys failed to enforce NDCS policies regarding access to the
WEC law library and legal materials and the handling of inmate legal mail and failed to
correct or alleviate the alleged “arbitrary and/or atypical actions” inflicted upon Plaintiff by
Fannon and Sheaffer. Id. at 5.
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As a result of Defendants’ actions, Plaintiff states that his “[o]nly injury amounted
to emotional distress tantamount to psychological shocking plaintiff’s conscience.” Id. at
10. For relief, Plaintiff seeks an order declaring Defendants violated his constitutional
rights by denying access to the WEC law library and that such violations constituted cruel
and unusual punishment in violation of the Eighth Amendment, and Plaintiff also requests
$1,000,000.00 in damages. Id.
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review prisoner and in forma pauperis complaints seeking
relief against a governmental entity or an officer or employee of a governmental entity to
determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and
1915A. 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, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Pro se 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.”).
“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
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Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d
968, 973 (8th Cir. 1999)). However, “[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).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state a
claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the
United States Constitution or created by federal statute and also must show that the
alleged deprivation was caused by conduct of a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993).
III. DISCUSSION
A. Plaintiff Cannot Represent Other Inmates
Plaintiff purports to bring this action on behalf of others similarly situated to himself.
Filing No. 1 at 1. However, Plaintiff is not a licensed attorney and cannot represent other
individuals in court. C.H. by & through Hunt v. Pattonville Sch. Dist., No. 4:21-CV-00443-
JCH, 2021 WL 4061106, at *2 (E.D. Mo. Sept. 7, 2021) (“A non-attorney pro se litigant
may represent him or herself in federal court, but cannot represent another person.”);
Jackson v. Dayton, No. 15-CV-4429 (WMW/JJK), 2016 WL 2931616, at *1 (D. Minn. Mar.
22, 2016), report and recommendation adopted, No. 15-CV-4429 (WMW/JSM), 2016 WL
2930913 (D. Minn. May 19, 2016) (“‘pro se litigants can never represent the rights, claims
and interests of other parties in a class action lawsuit (or otherwise)’” (quoting Perkins v.
Holder, No. 13–CV–2874 (PAM/FLN), 2014 WL 755378, at *5 n. 8 (D. Minn. Feb. 26,
2014))); United States v. Brenton, No. 8:04CR262, 2007 WL 3124539, at *1 (D. Neb. Oct.
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23, 2007) (citing 5A C. Wright & A. Miller, Federal Practice and Procedure § 1333, at 513
& n.15 (2004)) (it is improper for a non-lawyer to sign papers in place of, or to otherwise
represent, parties other than themselves).
Accordingly, the Court will ignore any claims purportedly asserted on behalf of
other individuals and will consider the claims raised in the Complaint as Plaintiff’s alone.
B. Access to Courts and Legal Mail
Liberally construed, Plaintiff alleges Defendants violated his right of access to the
courts by denying him access to the WEC law library and opening and mishandling his
legal mail. It is well established “that prisoners have a constitutional right of access to the
courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977). To prevail on an access to courts
claim, a prisoner must establish that he sustained “an actual injury.” Moore v. Plaster,
266 F.3d 928, 933 (8th Cir. 2001). To demonstrate “actual injury,” the prisoner must show
“‘that a nonfrivolous legal claim had been frustrated or was being impeded.’” Id. (quoting
Johnson v. Missouri, 142 F.3d 1087, 1089 (8th Cir. 1998)). In addition, “[p]rivileged
prisoner mail, that is mail to or from an inmate’s attorney and identified as such, may not
be opened for inspections for contraband except in the presence of the prisoner.” Gardner
v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (quotation and citation omitted); see also
Kamau v. Buss, No. 3:07-CV-372, 2007 WL 2363874, at *2 (N.D. Ind. Aug. 15, 2007)
(“The purpose of preventing prisons from opening legal mail outside of the presence of
an inmate is to protect the Sixth Amendment right to counsel and the attorney-client
privilege by ensuring that prison officials merely inspect for contraband and do not read
confidential communications between an inmate and his counsel.”). However, “an
isolated incident, without any evidence of improper motive or resulting interference with
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[the inmate’s] right to counsel or to access to the courts, does not give rise to a
constitutional violation.” Gardner, 109 F.3d at 431 (internal quotation marks omitted).
Here, Plaintiff alleges no facts to suggest he sustained any actual injury as a result
of Defendants’ denial of his access to the WEC law library or the mishandling of his legal
mail. Indeed, Plaintiff affirmatively alleges that his “only injury amounted to emotional
distress,” Filing No. 1 at 10, and he does not suggest that he was prevented from
presenting any nonfrivolous claim to the courts as a result of Defendants’ conduct.
Rather, the records in Plaintiff’s two cases pending at the time of his confinement in the
WEC demonstrate that Plaintiff did not suffer any actual injury. This Court’s records in
Case No. 8:23-cv-156 show that Plaintiff was able to file an amended complaint, motion
for counsel, and offer of proof, see Filing Nos. 22, 25, & 26, Case No. 8:23-cv-156, in the
timeframe between his placement at the WEC in early March 2025, see Filing No. 21,
Case No. 8:23-cv-156 (notice of address change to WEC dated March 4, 2025), and the
filing of his present Complaint on June 11, 2025, as well as a timely second amended
complaint and reasserted motion for counsel on August 18, 2025, see Filing Nos. 33 &
34, Case No. 8:23-cv-156. A review of Plaintiff’s Nebraska state appellate court records
likewise shows that he did not suffer any prejudice with respect to the prosecution of his
postconviction appeal between March 2025 and the appeal’s final disposition on July 11,
2025.3
Plaintiff also does not allege facts showing that he suffered any actual injury as a
result of Defendants’ denial of his requests for access to the WEC law library beyond the
established “once a week/one hour a day” allotment, Filing No. 1 at 6, particularly where
3 See attached Nebraska Appellate Courts Case Search record in State v. Kevin G Smith, No. A-24-386.
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access to a law library is not necessarily required to provide meaningful access to the
courts. See Entzi v. Redmann, 485 F.3d 998, 1005 (8th Cir. 2007) (concluding that
providing a law library is merely one way to comply with right of meaningful access to the
courts). Nor does Plaintiff allege that he suffered an actual injury as a result of the WEC
mailroom staff’s deficient handling of his legal mail or their “haphazard[]” opening of his
legal mail “more than once” outside his presence, Filing No. 1 at 7. Thus, Plaintiff’s
Complaint fails to state a plausible access-to-courts claim upon which relief may be
granted.
C. State-Law Claims
Plaintiff also appears to assert claims under a Nebraska state statute and the
Nebraska Constitution. See Filing No. 1 at 3. Plaintiff’s state-law claims can only be
litigated in this action through exercise of the Court’s supplemental jurisdiction. See 28
U.S.C. § 1367(a). However, the Court declines to exercise supplemental jurisdiction in
this case because Plaintiff’s federal claims will be dismissed without leave to amend. See
28 U.S.C. § 1367(c)(3) (authorizing district court to decline supplemental jurisdiction
where it has “dismissed all claims over which it has original jurisdiction.”); Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“in the usual case in which all federal-
law claims are eliminated before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will
point toward declining to exercise jurisdiction over the remaining state-law claims”);
Mountain Home Flight Serv., Inc. v. Baxter Cnty., 758 F.3d 1038, 1045 (8th Cir. 2014)
(“After the § 1983 claims were dismissed, the district court acted within its discretion in
declining to exercise supplemental jurisdiction over the remaining state law claims.”).
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IV. CONCLUSION
Plaintiff’s Complaint fails to state a plausible claim for relief and is, therefore,
subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2). The Court will dismiss the
Complaint without prejudice because the Court finds that further amendment would be
futile. See Silva v. Metro. Life Ins. Co., 762 F.3d 711, 719–20 (8th Cir. 2014) (district
courts can deny motions to amend when such amendments would be futile, such as
claims that are frivolous or could not withstand a 12(b)(6) motion to dismiss).
IT IS THEREFORE ORDERED that:
1. This matter is dismissed without prejudice for failure to state a claim upon
which relief may be granted.
2. The Court will enter a separate judgment.
Dated this 15th day of January, 2026.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Judge
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Nebraska Appellate and Supreme Courts Case Search - Case
https://www.nebraska.gov/courts/sccales/index.cgi[1/14/2026 3:27:56 PM]
Case Summary
State v. Kevin G Smith
The Case ID is A 24-386
Appealed on 05/20/2024.
Filed on 05/21/2024.
Classification: Post Conviction - Non-Advanced
Trial Court: 	Wayne County District Court
Trial Case ID: 	CR20-20
Trial Judge: 	Mark A. Johnson
Original Court: Wayne County District Court
This case was mandated on 07/11/2025.
This case is not currently scheduled.
Parties/Attorneys to the Case
Parties 	Attorneys
Appellee/Plaintiff 	Jordan Marie Osborne
State of Nebraska 	eNotice eMail Below
ATTORNEY GENERAL
1445 K Street, Room 2115
PO Box 98920
Lincoln, NE 68509-8920
(402) 471-3833
Appellant/Defendant 	Thomas B Donner
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Nebraska Appellate and Supreme Courts Case Search - Case
https://www.nebraska.gov/courts/sccales/index.cgi[1/14/2026 3:27:56 PM]
Kevin G Smith #214176 	eNotice eMail Below
DONNER LAW FIRM
Nebraska State Penitentiary 	137 S. Main St., Suite 2*
PO Box 22500 	West Point, NE 68788-1832
Lincoln, NE 68542-2500 	(402) 372-2719
eNotice Emails
Jordan Marie Osborne
jordan.osborne@nebraska.gov
Thomas B Donner
tbdonnerlaw@qwestoffice.net
Register of Actions
A 08/11/2025 Poverty Statement Paid
A 07/08/2025 Disposition
Petition of Appellant for further review denied.
A 06/30/2025 Waiver of Response to Pet Further Review
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Filed By State of Nebraska
Response To: Petition of Appellant for Further Review
A 06/23/2025 Petition of Appellant for Further Review
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Filed By Kevin G Smith #214176
1 Response Filed
Submitted 07/01/2025 Disposed 07/08/2025
A 05/27/2025 Disposition
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Affirmed. Riedmann, Chief Judge. See memorandum web opinion.
Mandated 	07/11/2025
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Poverty Statement
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Fees Due From: Appellant
A 05/06/2025 Submission to Court
Submitted 05/06/2025 Disposed 05/27/2025
A 04/02/2025 Appt Conflict with Call 5/7-am
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Nebraska Appellate and Supreme Courts Case Search - Case
https://www.nebraska.gov/courts/sccales/index.cgi[1/14/2026 3:27:56 PM]
View Image 	Image ID N25092XBQNSC
Filed By Kevin G Smith #214176
A 12/16/2024 Brief of Appellee State
View Image 	Image ID N24351VXDNSC
Filed By State of Nebraska
A 11/20/2024 Disposition
Pursuant to Neb. Ct. R. App. P. § 2-106(E)(2), Appellee's FINAL brief
date extended to December 16, 2024. No further extensions will be
allowed.
A 11/14/2024 Motion of Appellee to Extend Brief Date
View Image 	Image ID N24319VL7NSC
Filed By State of Nebraska
Submitted 11/20/2024 Disposed 11/20/2024
A 11/04/2024 4th Supplemental Transcript Pgs 1-3
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Filed By Kevin G Smith #214176
1 Response Filed
A 11/04/2024 Transcript acceptance letter
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Response To: 4th Supplemental Transcript Pgs 1-3
A 10/15/2024 Motion Appellee to Extend Brief Date
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Filed By State of Nebraska
Disposed 10/15/2024
A 10/15/2024 Disposition
Pursuant to Neb. Ct. R. App. P. § 2-106(E)(2), Appellee's FINAL brief
date extended to November 14, 2024.
A 10/08/2024 Entry of Appearance - Osborne for State
View Image 	Image ID N24282V5UNSC
Filed By State of Nebraska
A 09/13/2024 Brief of Appellant Smith
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Filed By Kevin G Smith #214176
A 09/11/2024 3rd Supplemental Transcript Pgs 1-12
View Image 	Image ID A00221454NSC
Filed By Kevin G Smith #214176
1 Response Filed
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A 09/11/2024 Transcript acceptance letter
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Response To: 3rd Supplemental Transcript Pgs 1-12
A 08/06/2024 Electronic BOE VOL 1 TEST (P1-121)
1 Response Filed
A 08/06/2024 Electronic BOE VOL 2 EXHIBITS 1-14
A 08/06/2024 Acceptance Letter to Trial Court
View Image 	Image ID B00219112NSC
Response To: Electronic BOE VOL 1 TEST (P1-121)
A 06/27/2024 By order of the Court BOE Prep Date
Disposed 06/27/2024
A 06/27/2024 Appellant's Brief Date Re-Established
Disposed 06/27/2024
A 06/27/2024 Disposition
By order of the Court, time for preparation for bill of exceptions
re-established to August 15, 2024.
A 06/27/2024 Disposition
Record preparation date having been re-established to August 15, 2024,
Appellant's brief date extended to September 16, 2024.
A 06/26/2024 2nd Supplemental Transcript Pgs 1-6
View Image 	Image ID A00216467NSC
Filed By Kevin G Smith #214176
1 Response Filed
A 06/26/2024 Transcript acceptance letter
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Response To: 2nd Supplemental Transcript Pgs 1-6
A 06/21/2024 Notice Appt Filing Request for Supp BOE
View Image 	Image ID N24173TTGNSC
Filed By Kevin G Smith #214176
A 06/20/2024 Disposition
Motion of Appellant for leave to request bill of exceptions out of
time sustained. Appellant shall file their request within three days
of this order.
A 06/14/2024 Motion Appt Leave to Request Supp BOE
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Filed By Kevin G Smith #214176
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Submitted 06/18/2024 Disposed 06/20/2024
A 06/12/2024 Status Letter to Appointed Counsel
View Image 	Image ID B00215534NSC
A 06/12/2024 Supplemental Transcript Pages 1-90
View Image 	Image ID A00215533NSC
Filed By Kevin G Smith #214176
1 Response Filed
A 06/12/2024 Transcript acceptance letter
View Image 	Image ID B00215532NSC
Response To: Supplemental Transcript Pages 1-90
A 06/12/2024 Disposition
Motion of Appellant for bill of exceptions overruled.
A 06/10/2024 Motion of Appellant for BOE
View Image 	Image ID 000104432NSC
Filed By Kevin G Smith #214176
Submitted 06/12/2024 Disposed 06/12/2024
A 05/30/2024 Disposition
Motion sustained; Luke Henderson allowed to withdraw as counsel for
Appellant.
A 05/23/2024 Transcript Pages 1-122
View Image 	Image ID A00214400NSC
Filed By Kevin G Smith #214176
1 Response Filed
A 05/23/2024 Transcript acceptance letter
View Image 	Image ID B00214399NSC
Response To: Transcript Pages 1-122
A 05/22/2024 Motion to Withdraw Henderson
View Image 	Image ID N24143TFMNSC
Filed By Kevin G Smith #214176
Submitted 05/29/2024 Disposed 05/30/2024
A 05/21/2024 Notice of Appeal
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Filed By Kevin G Smith #214176
5 Responses Filed
A 05/21/2024 New Case Letters
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A 05/21/2024 Poverty Order
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Response To: Notice of Appeal
A 05/21/2024 Acceptance Letter to the Trial Court
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Response To: Notice of Appeal
A 05/21/2024 Motion for In Forma Pauperis
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Response To: Notice of Appeal
A 05/21/2024 Poverty Affidavit
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Response To: Notice of Appeal
A 05/21/2024 Clerks Certificate on Appeal
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Response To: Notice of Appeal
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