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Case Name El-Tabech v. Houston PC-NE-0009
Docket / Court 4:04-cv-03231 ( D. Neb. )
State/Territory Nebraska
Case Type(s) Prison Conditions
Special Collection Solitary confinement
Case Summary
On June 28, 2004, a prisoner at the Nebraska State Penitentiary (NSP) and transferred to the Tecumseh State Correctional Institution (TSCI) filed this lawsuit after being severely injured by prison guards. Filing in the U.S. District Court for the District of Nebraska, the plaintiff sued the ... read more >
On June 28, 2004, a prisoner at the Nebraska State Penitentiary (NSP) and transferred to the Tecumseh State Correctional Institution (TSCI) filed this lawsuit after being severely injured by prison guards. Filing in the U.S. District Court for the District of Nebraska, the plaintiff sued the wardens of both maximum security prisons, the director of all Nebraska prisons, and multiple agents of the state prison system, including several medical personnel, under 42 U.S.C. §1983 and the Religious Land Use and Institutionalized Persons Act. In his pro se complaint, the plaintiff described the manner in which he was treated by prison guards after he had attempted escape from prison. He claimed that this treatment violated his First, Eighth, and Fourteenth Amendment rights and sought declaratory relief, injunctive relief, monetary relief, and attorneys’ fees and costs. The case was assigned to Judge Joseph F. Bataillon. The case appears both as El-Tabech v. Clarke and El-Tabech v. Houston.

The plaintiff had been apprehended after he failed to escape the prison. However, his abuse began when one guard jumped and slammed his knees on his back even though he was motionless, faced down on the ground, and complying with all orders. Several months later, the plaintiff was permitted to see a doctor only to discover his injuries required surgery to repair a “full thickness rotator cuff tear” inflicted upon him by the guard. The plaintiff also suffered a hernia and damage to one of his eyes. Over the next few months, prison administration placed the plaintiff on “intensive management” (IM) despite the fact that he was not a threat to himself or the staff. After being sentenced to 60 days in the Control Unit (CU), the plaintiff remained in solitary confinement for 449 days before he brought this lawsuit.

During his time in the cell, he suffered from total isolation and was seldom permitted basic needs, like bathing and access to sunlight. In this cell, rodents and insects were common. The defendants denied the plaintiff medical treatment and the plaintiff was exposed to human waste. Additionally, the defendants permitted the plaintiff access to law library only one hour a week. The plaintiff claimed that he was not given meaningful opportunity to contest the extended disciplinary segregation. The plaintiff also claimed that the prison personnel had religiously discriminated against him by depriving him the opportunity to practice his religion, denying him a kosher diet, and mocking and derogating the plaintiff, his practices and his family when they visited him in prison.

Early in the litigation, the plaintiff filed three separate motions requesting court appointed counsel. Judge Bataillon denied all three because indigent civil litigants do not have a constitutional or statutory right to counsel.

In October 2004, the defendants filed two motions to dismiss the complaint. They argued that the plaintiff’s Eighth Amendment claim was insufficient because he failed to allege facts that would amount to deliberate indifference. They asked the court to dismiss the claims regarding medical personnel at the prison because there was no allegation that they ever provided treatment to the plaintiff.

On November 1, 2004, the plaintiff filed the first motion for a temporary restraining order, asking the court to prohibit the defendants from denying him kosher meals. The court denied this motion on a technical error. On May 31, 2005, the plaintiff filed a second motion for a temporary restraining order as well as a motion for preliminary injunction. The plaintiff asked the court to enjoin the defendants from denying the plaintiff the necessary medical treatment for his shoulder, eye, and hernia.

On August 31, 2005, Judge Bataillon ruled on the defendants’ motions to dismiss. The court granted the motions as to the due process claim and the claims against the medical defendants and denied the motions as to the plaintiff’s Eighth Amendment claim and the other claims against the non-medical defendants. In that same order, the court denied the plaintiff’s motion for preliminary injunction and temporary restraining order because the plaintiff made insufficient allegations as to a threat of irreparable harm.

On September 8, 2005, the plaintiff filed a motion to certify a class, defining the class as “All past present and future prisoners housed in solitary confinement under IM status, and subjected to the cruel and unusual punishment through the conditions of confinement inflicted by the defendants.”

On September 14, 2005, the plaintiff filed another motion for preliminary relief. This time, the plaintiff asked the court to enjoin the defendants from obstructing and denying plaintiff the right of access to courts and the right to kosher meals. In March 2006, the plaintiff obtained representation from private counsel. On June 6, 2006, Judge Bataillon entered an order denying the plaintiff’s motion to certify class and the plaintiff’s September 14, 2005 motion for preliminary relief. The court denied the motion to certify class because pro se parties may not serve as class representatives and the scope of the class definition was too broad and vague.

On June 9, 2006, with the help of new counsel, the plaintiff filed an amended complaint. This amended complaint contained few substantive changes. Rather, the plaintiff’s original pro se complaint was reformatted and distilled to reflect a typical civil complaint.

As of March, 2007, the plaintiff had been in solitary confinement for nearly six years. For this reason, the plaintiff moved for summary judgment of his due process claim. He argued that his liberty interest was significant and the risk of erroneous deprivation was high enough to warrant summary judgment while the cost of the requested procedures was minimal. On March 30, 2007, the plaintiff filed another motion for summary judgment, this time seeking adjudication of his RLUIPA and free exercise of religion claim. In support of this motion, the plaintiff argued that the defendants had placed a substantial burden on the exercise of the plaintiff’s sincerely held religious beliefs.

On May 18, 2007, Judge Bataillon denied both of the plaintiff’s summary judgment motions. The court found that there was no evidence that the plaintiff did not receive notice of his IM status hearings and that he had the opportunity to fully present evidence of his due process claim. As such, Judge Bataillon found summary judgment in favor of the defendants on the plaintiff's due process claim.

Regarding the RLUIPA and freedom of religion claims, the court found that there were genuine issues of material fact concerning the allegations of cost and security in affording the plaintiff a kosher diet. The parties disagreed over the cost and feasibility of options to accommodate the plaintiff’s kosher requirements. Consequently, the court allowed the claim to proceed to trial. 2007 WL 2066510.

Following the trial, Judge Bataillon entered judgment for the plaintiff. According to the court, while deference was due to prison officials’ expertise under both RLUIPA and the First Amendment, the evidence demonstrated that the defendants did not select the least restrictive means to achieve their goal. Therefore, the court found that the defendants violated the plaintiff’s right to freedom of religion when they denied him reasonable access to a kosher diet.

As part of the judgment, Judge Bataillon ordered the parties to negotiate the feasibility of providing the plaintiff and other prisoners similarly situated with various kosher foods. On September 21, 2007, the parties submitted a joint stipulation detailing the results of their negotiation.

The parties agreed that the the defendants would develop and implement procedures and protocols to provide nutritionally sufficient kosher meals. The agreement required monitoring and reporting to ensure the defendants' compliance with the agreement. The defendants were also required to post a prayer schedule and “adjust activities or reduce disturbances as appropriate.” On October 5, 2007, the court ordered the implementation of the settlement.

On December 5, 2007, the plaintiff filed a motion for attorney’s fees and costs. Judge Bataillon granted this motion, awarding $204,856.28. 2008 WL 1995304.

After several months following implementation of the agreement, the plaintiff discovered feces wrapped in plastic in his meal prepared and delivered by TSCI staff. On August 26, 2008, the plaintiff filed a motion for contempt. Agreeing with the plaintiff, Judge Bataillon granted the plaintiff’s motion for contempt, finding that the defendants had not shown that they had made all reasonable good-faith efforts to comply with court’s order.

A few months later, the plaintiff also filed a motion for relief, as the defendants had not yet paid the $204,856.28 under the court’s order. On February 4, 2009, Judge Bataillon granted this motion for relief, ordering the defendants to pay the original sum plus an additional $7,857.72 in interest. The court also found that the interest rate should be increased to 14% to ensure compliance. The defendants appealed this decision to the United States Court of Appeals for the Eighth Circuit.

On March 18, 2009, the plaintiff filed a supplemental motion for attorneys’ fees under the RLUIPA and the Prison Litigation Reform Act. In another victory for the plaintiff, the court granted this motion and awarded the plaintiff an additional $73,360.20 in attorney's fees and $271.20 in recoverable costs. 2009 WL 1663440. The defendants also appealed this decision.

On August 18, 2009, the defendants filed a motion to stay proceedings pending the two appeals to the Eighth Circuit. Judge Bataillon denied this motion because the defendants delayed paying the court’s earlier judgment for attorney fees for more than a year and the plaintiff’s ability to recover would have been hampered by a stay. 2009 WL 3352829.

On August 13, 2010, the Eighth Circuit entered an opinion remanding the case to the district court for further proceedings consistent with their opinion. The Eighth Circuit found that the plaintiff's attorney had spent an unreasonable and unnecessary amount of time on the successful portion of the motion and asked the district court to review this portion of the award on remand. The court also addressed the defendants’ argument that the district court abused its discretion by increasing the post-judgment interest rate on the May 2008 fee award. The Eighth Circuit saw 14% to be a punitive increase in interest rate without clear and convincing evidence of a failure to comply with the underlying order. The court remanded the case for determination of an appropriate compensatory post-judgment interest rate that was in line with federal statutes. 616 F.3d 834.

On January 7, 2011, in light of the Eighth Circuit’s opinion, the plaintiff filed an amended motion for attorneys’ fees, reducing the fees sought by 43%. Judge Bataillon granted this motion, awarding $74,145.07 in attorneys’ fees and costs.

On June 20, 2011, the plaintiff filed a satisfaction of judgment, informing the court that the defendants paid the balance. The case is now closed.

Jake Parker - 06/04/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Cruel and Unusual Punishment
Due Process
Free Exercise Clause
Content of Injunction
Monitoring
Recordkeeping
Reporting
Required disclosure
Defendant-type
Corrections
Discrimination-basis
Religion discrimination
General
Access to lawyers or judicial system
Administrative segregation
Assault/abuse by staff
Bathing and hygiene
Conditions of confinement
Disciplinary procedures
Disciplinary segregation
Excessive force
Food service / nutrition / hydration
Language/ethnic/minority needs
Law library access
Personal injury
Religious programs / policies
Sanitation / living conditions
Solitary confinement/Supermax (conditions or process)
Medical/Mental Health
Untreated pain
Wound care
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Religious Freedom Rest. Act/Religious Land Use and Inst. Persons Act (RFRA/RLUIPA)
Defendant(s) Nebraska Department of Correctional Services
Plaintiff Description A prisoner at two Nebraska correctional facilities who, for 15 months after his attempted escape, was kept isolated in a restricted cell where he was denied access to medical care for his injuries, mocked for his religious practices, and denied a Kosher diet.
Class action status sought Yes
Class action status granted No
Filed Pro Se Yes
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2007 - n/a
Filing Year 2004
Case Closing Year 2012
Case Ongoing No
Additional Resources
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  Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders
N.Y.U. Law Review
Date: May 2006
By: Margo Schlanger (Washington University Faculty)
Citation: 81 N.Y.U. L. Rev. 550 (2006)
[ Detail ] [ PDF ] [ External Link ]

  Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons
Book
Date: Jan. 1, 1998
By: Malcolm M. Feeley & Edward Rubin (UC Berkeley Boalt Hall School of Law & Vanderbilt School of Law Faculty Faculty)
Citation: (1998)
[ Detail ]

Docket(s)
4:04−cv−03231 (D. Neb.)
PC-NE-0009-9000.pdf | Detail
Date: 12/18/2012
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PC-NE-0009-0001.pdf | Detail
Date: 06/28/2004
Source: PACER [Public Access to Court Electronic Records]
Motion for a Default Judgment [ECF# 39]
PC-NE-0009-0002.pdf | Detail
Date: 09/17/2004
Source: PACER [Public Access to Court Electronic Records]
Motion to Dismiss Complaint [ECF# 41]
PC-NE-0009-0003.pdf | Detail
Date: 10/01/2004
Source: PACER [Public Access to Court Electronic Records]
Motion for a Temporary Restraining Order [ECF# 50]
PC-NE-0009-0004.pdf | Detail
Date: 11/01/2004
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 51] (D. Neb.)
PC-NE-0009-0005.pdf | Detail
Date: 11/04/2004
Source: PACER [Public Access to Court Electronic Records]
Motion for Preliminary Injunction and Motion for Temporary Restraining Order [ECF# 59]
PC-NE-0009-0006.pdf | Detail
Date: 05/31/2005
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 61] (D. Neb.)
PC-NE-0009-0031.pdf | Detail
Date: 06/02/2005
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 72] (D. Neb.)
PC-NE-0009-0007.pdf | Detail
Date: 08/31/2005
Source: PACER [Public Access to Court Electronic Records]
Motion for Class Certification [ECF# 75]
PC-NE-0009-0008.pdf | Detail
Date: 09/08/2005
Source: PACER [Public Access to Court Electronic Records]
Motion for Temporary Restraining Order and for a Preliminary Injunction [ECF# 80]
PC-NE-0009-0009.pdf | Detail
Date: 09/14/2005
Source: PACER [Public Access to Court Electronic Records]
Answer [ECF# 82]
PC-NE-0009-0010.pdf | Detail
Date: 09/15/2005
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 107] (D. Neb.)
PC-NE-0009-0011.pdf | Detail
Date: 06/06/2006
Source: PACER [Public Access to Court Electronic Records]
Amended Complaint [ECF# 110]
PC-NE-0009-0028.pdf | Detail
Date: 06/09/2006
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 111] (D. Neb.)
PC-NE-0009-0032.pdf | Detail
Date: 06/12/2006
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 128] (D. Neb.)
PC-NE-0009-0033.pdf | Detail
Date: 11/29/2006
Source: PACER [Public Access to Court Electronic Records]
Motion for Partial Summary Judgment: Fourth Claim for Relief [ECF# 145]
PC-NE-0009-0012.pdf | Detail
Date: 03/27/2007
Source: PACER [Public Access to Court Electronic Records]
Motion for Summary Judgment (Partial) First and Second Claims for Relief [ECF# 150]
PC-NE-0009-0013.pdf | Detail
Date: 03/30/2007
Source: PACER [Public Access to Court Electronic Records]
Application for Writ of Habeas Corpus Ad Testificandum [ECF# 166]
PC-NE-0009-0014.pdf | Detail
Date: 05/10/2007
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 167] (D. Neb.)
PC-NE-0009-0015.pdf | Detail
Date: 05/11/2007
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 172] (2007 WL 1487148) (D. Neb.)
PC-NE-0009-0016.pdf | WESTLAW | Detail
Date: 05/18/2007
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 179] (2007 WL 2066510) (D. Neb.)
PC-NE-0009-0017.pdf | WESTLAW | Detail
Date: 07/17/2007
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 182] (D. Neb.)
PC-NE-0009-0018.pdf | Detail
Date: 07/23/2007
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 189] (D. Neb.)
PC-NE-0009-0019.pdf | Detail
Date: 10/05/2007
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [Granting Motion for Attorneys' Fees and Costs] [ECF# 203] (2008 WL 1995304) (D. Neb.)
PC-NE-0009-0029.pdf | WESTLAW | Detail
Date: 05/05/2008
Source: PACER [Public Access to Court Electronic Records]
Motion for Contempt [ECF# 205]
PC-NE-0009-0020.pdf | Detail
Date: 08/26/2008
Source: PACER [Public Access to Court Electronic Records]
Brief in Support of Plaintiff's Motion for Contempt [ECF# 209]
PC-NE-0009-0021.pdf | Detail
Date: 08/26/2008
Source: PACER [Public Access to Court Electronic Records]
Motion for Relief under Fed R Civ P 69 or 70, with Brief in Support [ECF# 212]
PC-NE-0009-0022.pdf | Detail
Date: 10/21/2008
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 225] (D. Neb.)
PC-NE-0009-0024.pdf | Detail
Date: 02/04/2009
Source: Papers of Margo Schlanger
Order [ECF# 228] (D. Neb.)
PC-NE-0009-0025.pdf | Detail
Date: 03/04/2009
Source: Papers of Margo Schlanger
Order [Granting Supplemental Motion for Attorneys' Fees] [ECF# 243] (2009 WL 1663440) (D. Neb.)
PC-NE-0009-0030.pdf | WESTLAW | Detail
Date: 06/10/2009
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 252] (2009 WL 3352829) (D. Neb.)
PC-NE-0009-0023.pdf | WESTLAW | Detail
Date: 10/16/2009
Source: Papers of Margo Schlanger
Appeals from the United States District Court for the District of Nebraska [Ct. of App. ECF# 257] (616 F.3d 834)
PC-NE-0009-0026.pdf | WESTLAW| LEXIS | Detail
Date: 08/13/2010
Source: Papers of Margo Schlanger
Memorandum and Order [ECF# 279] (2011 WL 1979847) (D. Neb.)
PC-NE-0009-0027.pdf | WESTLAW | Detail
Date: 05/20/2011
Source: Papers of Margo Schlanger
Judges Bataillon, Joseph F. (D. Neb.)
PC-NE-0009-0005 | PC-NE-0009-0007 | PC-NE-0009-0011 | PC-NE-0009-0016 | PC-NE-0009-0017 | PC-NE-0009-0018 | PC-NE-0009-0019 | PC-NE-0009-0023 | PC-NE-0009-0024 | PC-NE-0009-0025 | PC-NE-0009-0027 | PC-NE-0009-0029 | PC-NE-0009-0030 | PC-NE-0009-0031 | PC-NE-0009-9000
Gossett, F. A. III (D. Neb.) [Magistrate]
PC-NE-0009-0032 | PC-NE-0009-0033
Loken, James B. (Eighth Circuit)
PC-NE-0009-0026
Piester, David L. (D. Neb.)
PC-NE-0009-0015
Thalken, Thomas D. (D. Neb.) [Magistrate]
PC-NE-0009-9000
Plaintiff's Lawyers Firestone, Justin (Nebraska)
PC-NE-0009-0012 | PC-NE-0009-9000
Jensen, Marnie A. (Nebraska)
PC-NE-0009-0012 | PC-NE-0009-0013 | PC-NE-0009-0014 | PC-NE-0009-0028 | PC-NE-0009-9000
Lane, Ted J. (Nebraska)
PC-NE-0009-0020 | PC-NE-0009-0022 | PC-NE-0009-9000
Summerlin, V. Gene (Nebraska)
PC-NE-0009-0012 | PC-NE-0009-0014 | PC-NE-0009-0020 | PC-NE-0009-0021 | PC-NE-0009-0022 | PC-NE-0009-0028 | PC-NE-0009-9000
Defendant's Lawyers Bruning, Jon (Nebraska)
PC-NE-0009-0010
Gilbride, Ryan C (Nebraska)
PC-NE-0009-9000
Handley, David (Nebraska)
PC-NE-0009-9000
McBride, Eileen L. (Nebraska)
PC-NE-0009-9000
O'Gorman, Travis P (Nebraska)
PC-NE-0009-0003 | PC-NE-0009-9000
Strotman, Andrew D. (Nebraska)
PC-NE-0009-0003
Sullivan, Timothy P (Nebraska)
PC-NE-0009-0010 | PC-NE-0009-9000
Taylor-Riley, Kimberley R. (Nebraska)
PC-NE-0009-9000
Willard, Linda (Nebraska)
PC-NE-0009-9000
Works, Matthew A. (Nebraska)
PC-NE-0009-9000

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