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. The plaintiffs, represented by the ACLU's National Prison Project, the National Association of the Deaf, and private counsel 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, an over reliance on isolation, and inadequate health care. In particular, the plaintiffs claimed violations of § 504 of the Rehabilitation Act, the Americans with Disabilities Act, and the Eighth Amendment to the United States Constitution. This case was assigned to Judge Robert F. Rossiter, Jr. and referred to Magistrate Judge Michael Nelson.

On November 6, 2017, the defendants moved to dismiss the plaintiffs’ complaint for failure to state a claim and lack of subject matter jurisdiction. The defendants sought to have all claims against the BOP dismissed entirely and to dismiss all § 1983 claims against both defendants. On January 16, 2018, Judge Robert F. Rossiter, Jr. granted in part and denied in part the defendants' motion to dismiss. The court ruled that BOP defendants were not dismissed as parties, but that all § 1983 claims against the BOP and the NDCS were dismissed with prejudice. The parties began discovery.

On July 27, 2018, the defendants moved for partial summary judgment, arguing that the plaintiffs had failed to exhaust remedies as required under the Prison Litigation Reform Act. A few months later, the defendants also moved for summary judgment as to an individual defendant (the Director of Supervision and Services of the Division of Parole Supervision) and to dismiss an individual named plaintiff who had since been released from prison. As of February 2019, the court has yet to rule on any of these motions.

On February 19, 2019, the plaintiffs moved for class certification. 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." 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”). The plaintiffs submitted several expert reports to support their motion.

Litigation continues, as the parties litigate several discovery disputes.

Sean Whetstone - 07/19/2018
Gabriela Hybel - 02/21/2019


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