On August 15, 2017, eleven prisoners filed a putative class action complaint against the Nebraska Department of Correctional Services (NDCS) and the Nebraska Board of Parole (BOP) in the U.S. District Court for the District of Nebraska under 42 U.S.C. § 1983. Represented by the ACLU's National Prison Project, the National Association of the Deaf, and private counsel, the plaintiffs sought injunctive relief and attorneys’ fees, claiming that the prison conditions in Nebraska endangered the health, safety, and lives of prisoners and staff on a daily basis. The complaint alleged chronic overcrowding and under-staffing, a lack of staff training, a flawed parole system, overreliance on isolation, and inadequate health care. In particular, the plaintiffs claimed violations of the Eighth Amendment to the Constitution, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. The case was assigned to Judge Robert F. Rossiter, Jr. and referred to Magistrate Judge Michael Nelson.

On November 6, 2017, the Department of Correctional Services and the Board of Parole moved to dismiss the plaintiffs’ complaint for failure to state a claim and lack of subject matter jurisdiction. They sought to have all claims against the Board dismissed entirely, and to dismiss all §1983 claims against both the Department and the Board. On January 16, 2018, the court denied the motion to dismiss the Board as defendant, but dismissed all §1983 claims, against the Board and the Department, with prejudice.

On July 27, 2018, the defendants moved for partial summary judgment, arguing that the plaintiffs had failed to exhaust administrative remedies as required under the Prison Litigation Reform Act. A few months later, the defendants moved to dismiss an individual plaintiff who had been released from prison, and also moved for summary judgment on the claims against one individual defendant (the Director of Supervision and Services of the Division of Parole Supervision).

The plaintiffs sought class certification on February 19, 2019. They sought to represent a class of "all persons who are now, or will in the future, be subjected to the health care (including medical, mental health and dental care) policies and practices of NDCS [the Nebraska Department of Correctional Services]." They also sought to certify two subclasses: an Isolation Subclass (“all NDCS prisoners who are now, or will in the future be, subject to conditions of confinement that provide limited contact with other prisoners, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week") and a Disability Subclass ("“all persons with disabilities who are now, or will in the future be, confined at any NDCS facility”).

On April 18, 2019, the defendants again sought summary judgment.

On June 8, 2020, the court issued a series of orders. First, the court denied the defendants' motion for partial summary judgment regarding exhaustion of administrative remedies. Second, defendants' motion for partial summary judgment regarding life sentences and Eighth Amendment claims were granted as to some defendants but not others. Third, an individual defendant was dismissed on summary judgment. Fourth, the plaintiff's request for class certification was denied. 2020 WL 3047479. The court also stated that discovery about COVID-19 was irrelevant to the plaintiff's claims about the medical care system.

The case is ongoing.

Sean Whetstone - 07/19/2018
Gabriela Hybel - 02/21/2019
Bogyung Lim - 06/27/2020


compress summary