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Blackstock v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

December 11, 2018

JESSE BLACKSTOCK, Plaintiff,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, UNITED STATES OF AMERICA, and BRAD HANSEN, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Plaintiff's Motion for Discovery (filing no. 3), Motion for Summons (filing no. 4), and Motion for Temporary Restraining Order and Preliminary Injunction (filing no. 5).

         I. MOTION FOR DISCOVERY AND MOTION FOR SUMMONS

         Plaintiff filed a “Praecipe Request for Transcripts, Copy of Grievances, and Medical, & Institution Records” which the court construes as a Motion for Discovery. (Filing No. 3.) Plaintiff asks the court to “issue a Praecipe for Production of Document[s], Transcripts, Grievances, Medical records, Health records From Mental Health, Also Any Notes on File about Plaintiff's Institution Records” on the Nebraska Attorney General and require the Attorney General to deliver the requested documents to the court. (Id.(capitalization in original)) Plaintiff also asks the court to issue summons on the Nebraska Attorney General. (Filing No. 4.)

         No discovery or service of process may take place in this case at this time. Before this matter may proceed, Plaintiff is required to pay an initial partial filing fee of $51.13. Once payment is made, the court is required to review Plaintiff's Complaint to determine whether summary dismissal is appropriate. See28 U.S.C. § 1915(e)(2). The court must dismiss a complaint or any portion thereof 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).

         The court has not yet conducted an initial review of Plaintiff's Complaint pursuant to section 1915(e). No. discovery may take place in this case unless the court determines that this matter may proceed to service of process. Accordingly, Plaintiff's Motion for Discovery (filing no. 3) and Motion for Summons (filing no. 4) are denied without prejudice to reassertion.

         II. MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

         Plaintiff also filed a Motion for Temporary Restraining Order and Preliminary Injunction.[1] (Filing No. 5.) Plaintiff alleges the Defendants have that any injury is likely to occur. Rather, the suggested threat of harm is merely speculative. Accordingly, the court will deny his request for a temporary restraining order and preliminary injunction.

         IT IS THEREFORE ORDERED that:

         1. Plaintiff's Motion for Discover (filing no. 3) and Motion for Summons (filing no. 4) are denied without prejudice to reassertion.

         2. Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (filing no. 5) is denied.

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Notes:

[1] Plaintiff included an “Affidavit of Bias Prejudice against Plaintiff” with his Motion for Temporary Restraining Order and Preliminary Injunction. (Filing No. 5 at CM/ECF p. 3.) Plaintiff declares that he cannot have a fair trial in this matter because the undersigned judge is personally biased and prejudiced against Plaintiff based on rulings in favor of the Nebraska Department of Correctional Services (“NDCS”) in three other cases filed by Plaintiff-Case Numbers 4:18CV3059, 8:18CV253, and 8:18CV280. In each of the three cases identified by Plaintiff, he filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which I dismissed without prejudice because the petitions raised “conditions of confinement” claims that are not properly brought as habeas corpus claims. (SeeFiling No. 8, No. 4:18CV3059; Filing No. 10, No. 8:18CV253; Filing No. 5, No. 8:18CV280.) Thus, the ...


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