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; 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.

8:23CV187

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff’s motion for leave to amend his 

Complaint, Filing No. 12, motion to add parties, Filing No. 14, motion for temporary 

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restraining order, Filing No. 15, and motion for reconsideration of this Court’s prior denial 

of his motion to appoint counsel, Filing No. 18. For the reasons set forth below Plaintiff’s 

motion to amend shall be granted, and all remaining motions shall be denied.

I. Motion to Amend and Motion to Add Parties

Plaintiff seeks leave to amend his Complaint, Filing No. 12, and filed an attached 

proposed, unsigned amended complaint (the “Amended Complaint”), Filing No. 13. As 

the Amended Complaint Plaintiff is unsigned, Plaintiff’s motion is granted. Plaintiff shall 

file a signed copy of the Amended Complaint as required by NECivR 15.1(c) within 30 

days.

Plaintiff also concurrently filed a motion to add parties, apparently seeking to add 

a list of additional parties as defendants in their official and individual capacities to his

case. Filing No. 14. It appears, however, that the additional parties listed in the motion 

to add parties are already named in both the caption and listing of defendants in Plaintiff’s

Amended Complaint. Compare Filing No. 13 at 1–3 with Filing No. 14. Therefore, the 

motion to add additional parties is both unnecessary, as the addition of parties to an action 

should be done by amending the complaint, not by separate motion, and redundant, as 

the additional parties appear to be named in the Amended Complaint, and will be denied 

as moot.

Accordingly, Plaintiff’s motion to amend, Filing No. 12, shall be granted, and the 

motion to add parties, Filing No. 14, shall be denied as moot.1 

1 To the extent Plaintiff seeks to name additional parties and/or bring additional claims not currently set 

forth in the Amended Complaint he may seek further leave to amend via separate motion.

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II. Motion for Temporary Restraining Order

Plaintiff filed a motion for temporary restraining order (“TRO”), seeking a TRO and 

preliminary injunction, enjoining all defendants named in his Proposed Amended 

Complaint from further “unconstitutional treatment and conditions” performed in retaliation 

due to his filing a complaint in this Court. Filing No. 15.

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 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 and review of Plaintiff’s Proposed 

Amended Complaint cannot be performed until it has been signed, rendering the motion 

premature. For these reasons the Court will, therefore, deny Plaintiff's Motion for a 

temporary restraining order and preliminary injunction, Filing No. 15, without prejudice to 

reassertion.

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III. Motion to Reconsider Appointment of Counsel

Plaintiff previously filed a motion to appoint counsel, Filing No. 5, which was denied 

without prejudice by this Court, Filing No. 11. He now seeks reconsideration of that order 

arguing counsel is necessary due to the large number of defendants and claims, the 

varied location where the claims took place, his lack of access to any defendants, 

Plaintiff’s disabilities including his lack of fingers and having only one leg, and his 

incarcerated status generally which will make discovery difficult and limits his access to 

the law library and research materials. Filing No. 18.

As an initial matter, Plaintiff has not indicated what Federal Rule of Civil Procedure 

he is relying on in bringing his motion for reconsideration. See Id. “The Eighth Circuit 

has traditionally instructed courts to consider such motions either under Rule 59 or Rule 

60(b).” Moberly v. Midcontinent Commc'n, No. 4:08-CV-04120-KES, 2010 WL 11681663, 

at *1 (D.S.D. Aug. 2, 2010). “Rule 59(e) motions serve the limited function of correcting 

manifest errors of law or fact or to present newly discovered evidence.” Innovative Home 

Health Care, Inc. v. P.T-O.T Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 

1998) (internal punctuation and citations omitted). The Eighth Circuit has held that 

motions for reconsideration “cannot in any case be employed as a vehicle to introduce 

new evidence that could have been adduced.” Hagerman v. Yukon Energy Corp., 839 

F.2d 407, 414 (8th Cir. 1988) (internal quotations omitted). “Such motions cannot be used 

to introduce new evidence, tender legal theories, or raise arguments which could have 

been offered or raised prior to entry of judgment.” United States v. Metro. St. Louis Sewer 

Dist., 440 F.3d 930, 933 (8th Cir. 2006). As the information conveyed in Plaintiff’s motion 

for reconsideration is not new as it either was or could have been expressed in his original 

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motion for appointment of counsel, to the extent his motion for reconsideration is brought 

under Rule 59(e), it is therefore denied.

Just like Rule 59(e) motions, Rule 60(b) motions cannot be used “to ‘tender new 

legal theories’” or to reargue “’on the merits.’” Arnold v. ADT Sec. Servs., Inc., 627 F.3d 

716, 721 (8th Cir. 2010) (quoting Hagerman, 839 F.2d at 414) (first quoted material); 

Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999) (second quoted material). The

only potentially applicable circumstance here is “any other reason that justifies relief.” 

Fed. R. Civ. P. 60(b)(6). To obtain relief under Rule 60(b)(6), Plaintiff must show that 

“exceptional circumstances . . . denied the moving party a full and fair opportunity to 

litigate his claim and . . . prevented the moving party from receiving adequate redress.” 

Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005) (citation omitted). 

As previously noted, “[r]elevant 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.” Filing No. 11 at 4 (citing 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))). When considering 

Plaintiff’s prior motion for counsel this Court carefully reviewed the record and found 

“there is no need for the appointment of counsel at this time as at this early stage of 

litigation, Plaintiff appears able to adequately present his claims,” but explained that the 

Court would consider a new motion for counsel if later developments established 

appointment as necessary. Id. (emphasis added) (citing Williams v. Carter, 10 F.3d 563, 

567 (8th Cir. 1993)). As the Court has yet to perform its initial review the status of the 

case has not changed, therefore appointment of counsel is still premature. See Chiras v. 

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Denver Det. Ctr., No. 20-CV-00669-GPG, 2020 WL 13754774, at *4 (D. Colo. July 30, 

2020) (denying a plaintiff’s motion to appoint counsel while the case is under initial review 

as premature).

Because Plaintiff has not asserted facts that would entitle him to relief under Rule 

59(e) or 60(b), and as his motion is premature as this Court has yet to perform its initial 

review of Plaintiff’s Complaint, Plaintiff’s motion for reconsideration, Filing No. 18, is 

denied without prejudice to reassertion.

III. Conclusion

Therefore, for the reasons set forth herein, it is ORDERED:

1. The Plaintiff’s motion for leave to amend his complaint, Filing No. 12, is 

GRANTED. Plaintiff shall have through and until October 2, 2023, to file a signed copy 

of his proposed Amended Complaint, Filing No. 13, in compliance with NECivR 15.(c). 

To that end, the Clerk of Court is directed to send to Plaintiff a copy of the Amended 

Complaint’s signature page, Filing No. 13 at 42, which Plaintiff may sign and return to 

satisfy the Amended Complaint’s signature requirement.

2. Plaintiff’s motion for leave to add additional parties, Filing No. 14, is DENIED 

as moot. 

3. The motion for temporary restraining order, Filing No. 15, and motion for 

reconsideration, Filing No. 18, are DENIED without prejudice to reassertion.

4. The Clerk of Court shall set a pro se case management deadline using the 

following text: October 2, 2023: deadline to file signed amended complaint.

5. Plaintiff is advised that, following his filing of a signed Amended Complaint, 

the next step in Plaintiff’s case will be for the Court to conduct an initial review of Plaintiff’s 

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claims to determine whether summary dismissal is appropriate under 28 U.S.C. § 

1915(e)(2). The Court will conduct this initial review in its normal course of business.

Dated this 1st day of September, 2023.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Court

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