Yu v. Clary et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ZEHAO YU,
Plaintiff,
vs.
KEN CLARY, Chief of Bellvue Police
in Nebraska, in official capacity and
individually; BELLVUE POLICE,
THE US MINT, KRISTIE MCNALLY,
GREG WEINMAN, and JOHN P.
BRAWDY,
Defendants.
8:25CV426
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s Motion for Summons. Filing
No. 12. For the reasons set forth below the Motion for Summons shall be denied
without prejudice as premature.
Plaintiff filed a complaint on June 27, 2025. Filing No. 1. The Court
performed an initial review of the complaint on October 20, 2025, pursuant to
28 U.S.C. § 1915(e), finding the complaint failed to state a claim and was
subject to dismissal without amendment. Filing No. 11. In lieu of dismissal
Plaintiff was granted leave to amend the complaint no later than November
19, 2025. Id. at 12.
However, Plaintiff’s Motion for Summons is premature as the amended
complaint has not yet been filed so no initial review has been performed. See
e.g. Jackson v. Herrington, 393 F. App'x 348, 353 (6th Cir. 2010) (explaining
that Rule 4 requires plaintiffs to serve each defendant with a summons and a
copy of a complaint, but district courts cannot issue summonses in in forma
pauperis cases until after screening the complaint for frivolousness and other
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defects under 28 U.S.C. § 1915(e)) (citation omitted). As an amended complaint
has not yet been filed this Court cannot yet determine whether this matter
may proceed to service of process.
IT IS THEREFORE ORDERED that the Motion for Summons, Filing No.
12, shall be denied without prejudice as premature. If Plaintiff elects to file an
amended complaint by the November 19, 2025, deadline set forth in the
Memorandum and Order dated October 20, 2025, Filing No. 11, the Court will
conduct an initial review of the amended complaint pursuant to 28 U.S.C. §
1915(e) in its normal course of business.
Dated this 27th day of October, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
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