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ER.VICE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL TABECH

) Case No. 4:04CV3231

)

Plaintiff,

)

)

vs.

)

)

HAROLD CLARKE, MIKE KENNEY, )

MOTION TO DISMISS

FRANCIS BRITTEN, RANDY COLE, )

ELIZABETH CONLEY, JANSSEN )

WILLIAMS, DAVE THOMAS,

)

DOUGLAS SELL, BRIAN SHIPMAN, )

MARY CARMICHAEL, all in their )

individual and official capacities, )

)

Defendants.

)

COMES NOW Defendant Janseen Williams, M.D., Elizabeth Conley and

Dave Thomas and moves the Court to dismiss Plaintiff’s Complaint pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure for the reason that the

Complaint fails to state a claim upon which relief can be granted. In support of

his motion, defendant submits his Brief in Support of Motion to Dismiss.

JANSSEN WILLIAMS, M.D., ELIZABETH CONLEY, M.D. and DAVE THOMAS, Defendants.

By: /s/Travis P. O’Gorman Andrew D. Strotman - #18406 Travis P. O’Gorman - #22460 CLINE, WILLIAMS, WRIGHT, JOHNSON & OLDFATHER Attorneys at Law 1900 U.S. Bank Building 233 South 13th Street Lincoln, NE 68508-2095 (402) 474-6900

L0616630.1

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Motion for Enlargement of Time was electronically filed with the Clerk of the Court using the CM/ECF System. I also certify that a true and correct copy of the foregoing was served upon Plaintiff at the Tecumseh State Correctional Institution, 2725 North Highway 50, P.O. Box 900, Tecumseh, Nebraska 68450, by United State Mail, sufficient first-class postage pre-paid, this 1st day of October 2004.
/s/Travis P. O’Gorman

L0616630.1

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NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES GRIEVANCE FORM Step One
CHIEF EXECUTIVE OFFICER

INSTRUCTION$: TYPE OR USE BALL POINT PEN. IF MORE SPACE IS NEEDED. USE ATTACHMENT SHEer IN TAl PLICATE.

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LAST NAME,

FIRST,

MIDDLE INITIAL

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Part B - RESPONSE AND REASONS FOR DECISION REACHED

The informati~n contained in yo~ grie~ance d.oes not meet the criteria, which governs

e:nergency gne~~ces as you are In no nnmedlate danger of being subjected to a substantial
nsk of p~onallnJury or serious or irreparable harm. Aramark staff has agreed for the month of Oct. dunng Ramadan not to s~e pork products for the evening and morning meals. If yo

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NO.

Part B - RESPONSE AND REASONS FOR DECISION REACHED

The information contained in your grievance does not meet the criteria, which governs

emergency grievances as you are in no immediate danger of being subjected to a substantial

risk of personal injury or serious or irreparable harm. Aramark staff has agreed for the month of Oct. during Ramadan not to serve pork products for the evening and morning meals. If yo

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choose not. t.o accept your tray advice staff you are refusing your meal.. y ou.ooay ~sub1nitvilt,~e grievance'proeeliure as outlined in DeS R.ule #2.

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LAST NAME,

FIRST,

MIDDLE INITIAl.

NO.

FACILITYIHQUS1NG UNIT

I acknowledge receipt this date of a complaint from the above inmate in regard to the following subject: _ _ _ _ _ _ _ __

DATE CC8-A-adm-049 (4.97)

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RECIPIENT'S SIGNATURE (STAFF MEMBER)

(SEE REVERSE SIDE FOR INSTRUC110NS FOR APPEAL TO DIRECTOR OR DIRECT SUBMISSION TO DIRECTOR)

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NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES
GRIEVANCE FORM Step One
CHIEF EXECUTIVE OFFICER

INSTRUCTIONS: TYPE OR USE BALL POINT PEN. IF MORE SPACE IS NEEDED, USE ATIACHMENT SHEET IN TRiPUCATE.

From: fl-'T1JBEC-/{ lnoHflMEb, A-·M -B.

LAST NAME.

FIRST.

MIDDLE INITIAL

SIGNATURE OF REQUESTOR

Part B - RESPONSE AND REASONS FOR DECISION REACHED

The infonnation contained in your grievance does not meet the criteria, which governs

emergency grievances as you are in no im..;nediate danger ofbeing subjected to a substantial

risk of personal injury or serious or irreparable harm. Aramark staffhas agreed for the month :' y

of Oct. during Ramadan not to serve pork products for the evening and morning meals. If X < ~

choose not to accept ~our tray a.<lvice.staffyou are refusi!1g yo~ me.aI.

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ORIGINAL: TO BE RETURNED TO INMATE AFTER COMPLETION.

Part C - RECEIPT

Return to: __""""'=""""__-==-_-;-;===____

LAST NAME,

FIRST,

MIDDLE INITIAL

NO.

FACILITY/HOUSING UNIT

I acknowledge receipt this date of a complaint from the above inmate in regard to the following subject: _ _ _ _ _ _ _ __

OATE DCS-A-adm-D49 (4-97)

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A5C1PIENTS SIGNATURE (STAFF MEMBER)

(SEE REVERSE SIDE FOR INSTRUCTIONS FOR APPEAL TO DIRECTOR OR DIRECT SUeMlSSION TO DIRECTOR)

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NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES

• '.

GRIEVANCE FORM Step One

INSTRUCTIONS: TYPE OR USE BALL POINT PEN. IF MORE SPACE IS

CHIEF EXECUTIVE OFFICER

NEEDED, USE ATTACHMENT SHEET IN TRIPUCATE.

From: ~L .Q7}BECf4/MeMt9Mfb, fj,jJl;. '3tiJ7S-L

LAST NAME,

FIRST.

MIDDLE INITIAL

NO.

Part B - RESPONSE AND REASONS FOR DECISION REACHED

OAT

VE OFFICER

ORIGINAL: TO !IE RETURNED TO INMATE AFTER COMPLETION. ---~-------------------------------------------
Part C - RECEIPT

Return to: --....,..,,=-c'~----==-----,.=-:-;,'=----

LAST NAME,

FIRST,

MIDDLE INITIAL

NO.

FACILITY/HOUSING UNIT

I acknowledge receipt this date of a complaint from the above inmate in regard to the following subject: _ _ _ _ _ _ _ __

DATE

RECIPIENT'S SIGNATUAE (STAFF MEMBER) (SEE REVERSE SlOE FOR INSlRUCTIONS FOR APPEAL TO DIRECTOR OR DIRECT SUBMISSION TO DIRECTOR)

DCS·A·adm·049 (4-97)

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
vs.
HAROLD W. CLARKE, et al., Defendants.

)

)

4:04cv3231

)

)

)

MEMORANDUM AND ORDER

)

)

)

)

)

This matter is before the court on the following pending motions: (1) filing no. 37, the Motion for Entry of Default against defendants-Elizabeth Conley, Dave Thomas, Janssen Williams and Paul Church, filed by the plaintiff, Mohamed A. El-Tabech; (2) filing no. 39, the plaintiff’s Motion for Default Judgment against defendants-Elizabeth Conley, Dave Thomas, Janssen Williams and Paul Church; (3) filing no. 44, the Motion for Leave to File Brief Outside of Time filed by defendants-Elizabeth Conley, Dave Thomas, and Janssen Williams; (4) filing no. 49, the plaintiff’s Motion for Enlargement of Time to respond to motions to dismiss; and (5) filing no. 50, the plaintiff’s Motion for a Temporary Restraining Order (“TRO”).
Filing nos. 37 and 39, the plaintiff’s motions for clerk’s entry of default and default judgment, are denied. In filing no. 33, defendants-Elizabeth Conley, Dave Thomas, and Janssen Williams requested an extension of time to respond to the plaintiff’s complaint. Filing no. 34 is an entry on the docket sheet for this case made by the Clerk of Court on September 2, 2004, granting the requested extension of time. Those defendants then filed a motion to dismiss the complaint on October 1, 2004 (filing no. 41) within the extended period granted by the Clerk of Court. Therefore, defendants-Elizabeth Conley,
1

Dave Thomas, and Janssen Williams are not in default. 1 In filing no. 44, defendants-Elizabeth Conley, Dave Thomas, and Janssen Williams
request additional time to file their brief in support of their motion to dismiss because transmission of the defendants’ brief by the court’s electronic filing system malfunctioned. Filing no. 44 is granted, and the brief (attachment to filing no. 44) is accepted for filing instanter.
The plaintiff seeks additional time in filing no. 49 to respond to the defendants’ motions to dismiss. Filing no. 49 is granted, although the court notes that the plaintiff has since filed his briefs (filing nos. 48 and 49) in opposition to the motions to dismiss.
In filing no. 50, the plaintiff moves for a TRO regarding the food he has been served during a religious holiday. The defendants have appeared in this case, and, therefore, filing no. 50 is not appropriately treated as a motion for an ex parte TRO. However, filing no. 50 does not include a Certificate of Service showing service of the motion on the defendants. Therefore, filing no. 50 is denied, without prejudice to reassertion of the motion accompanied by a certificate of service demonstrating delivery by first-class mail to all defendants.
THEREFORE, IT IS ORDERED: 1. That filing nos. 37 and 39, the plaintiff’s motions for clerk’s entry of default
1 While defendant-Paul Church did not request additional time or join in the motion to dismiss, the court cannot determine whether that defendant has been properly served with process. Mr. Church did not sign a receipt for the delivery of the summons and complaint by certified mail. Although another person signed for him, it is not clear whether that person was authorized to receive certified mail for Mr. Church or even whether Mr. Church was present at the location to which the certified mail was directed. The plaintiff is free to reassert his Motions as to Mr. Church, supported by sufficient information for the court to determine whether Mr. Church has been properly served.
2

and default judgment, are denied; 2. That filing no. 44, the motion by defendants-Elizabeth Conley, Dave Thomas,
and Janssen Williams for additional time to file their brief, is granted, and the brief (attachment to filing no. 44) is accepted for filing instanter;
3. That filing no. 49, the plaintiff’s Motion for Enlargement of Time, is granted; and
4. That filing no. 50, the plaintiff’s Motion for a TRO, is denied, without prejudice to reassertion of the motion accompanied by a Certificate of Service demonstrating delivery of a copy of the motion by first-class mail to all defendants.
DATED this 4th day of November, 2004. BY THE COURT: s/ Joseph F. Bataillon JOSEPH F. BATAILLON United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
vs. HAROLD W. CLARKE, et al.,
Defendants.

)

)

)

4:04cv3231

)

)

MEMORANDUM AND ORDER

)

)

)

)

This matter is before the court on the following pending motions: (1) filing no. 41, the Motion to Dismiss filed by defendants-Elizabeth Conley, M.D., Janssen Williams, M.D. and Dave Thomas (collectively “medical defendants”); (2) filing no. 45, the Motion to Dismiss filed by defendants-Francis Britten, Mary Carmichael, Harold W. Clarke, Randy Cole, Michael Kenney and Douglas Sell (collectively “DCS defendants”); (3) filing no. 56, the Motion for Default Judgment against Defendant Paul Church, filed by the plaintiff, Mohamed A. El-Tabech; (4) filing no. 57, the plaintiff’s Motion to Strike Defendants’ Supplemental Brief; (5) filing no. 59, the plaintiff’s Motion for a Preliminary Injunction; (6) filing no. 64, the DCS defendants’ Response to Motion for Preliminary Injunction, and filing no. 65, the medical defendants’ Objection to Motion for Preliminary Injunction; (7) filing no. 69, the plaintiff’s Objection to Motion to Depose a Confined Person; and (8) filing no. 71, the plaintiff’s Objection to Order granting the Motion to Depose a Confined Person.
The plaintiff, a prisoner in the custody of the Nebraska Department of Correctional Services ("DCS"), seeks monetary, declaratory and injunctive relief for deprivations of due process and equal protection and for violations of the Eighth Amendment to the United States Constitution, in connection with his prolonged confinement in segregation. The plaintiff also alleges claims of excessive force, retaliation, denial of First Amendment rights, and deprivation of medical care. Pursuant to 42 U.S.C. § 1983, he has sued the defendants in their individual and official capacities.
The plaintiff states that he has been continuously confined in segregation, first at the Nebraska State Penitentiary (“NSP”) and currently at the Tecumseh State Correctional Institution (“TSCI”) for an unduly long period. He complains of conditions in the TSCI segregation unit, such as an absence of windows, visitation, contact with other inmates, and space in his cell. His showers, exercise and access to the prison law library are restricted to a bare minimum. In addition, his cell is infested with vermin; sewage backs up in the corridors, and conditions are inferior even to those on death row. The plaintiff asserts that his living conditions not only impose an “atypical and significant hardship on [him] in relation to the ordinary incidents of prison life,” Sandin v. Conner, 515 U.S. 472, 484 (1995), but they amount to cruel and unusual punishment. In addition, the plaintiff
1

contends that he has received substandard medical care while housed in segregation.
The defendants assert that the complaint fails to state a claim on which relief may be granted. Fed. R. Civ. P. 12(b)(6). I agree as to the plaintiff’s due process claim and as to the claims against the medical defendants. However, I do not agree as to the plaintiff’s Eighth Amendment and other claims against the DCS defendants. However, as discussed below in this Memorandum and Order, I agree with the defendants that the former Director of DCS and the Warden of NSP cannot be held liable to the plaintiff on the basis of respondeat superior or vicarious liability. Therefore, insofar as those are the principles on which the plaintiff seeks to impose liability on Harold W. Clarke and Michael Kenney, he may not do so.
Due Process Claim
The plaintiff engaged in two escape attempts from NSP, the first in 1995 and the second on April 25, 2001. On April 25, 2001, officials at NSP placed the plaintiff on immediate segregation. At some point, he was later reclassified to administrative confinement. Then, the plaintiff received a security classification of intensive management on March 22, 2002. All of those classifications involved placement in segregation. On July 18, 2002, the plaintiff transferred to TSCI, where he remains classified to intensive management and housed in segregation. The plaintiff complains that he has been subjected to deprivations of procedural and substantive due process in connection with his security reclassifications.
“The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 125 S.Ct. 2384, 2393 (2005). Thus, claims regarding the right to either procedural or substantive due process must begin with identification of a protected liberty or property interest. Singleton v. Cecil, 176 F.3d 419, 424-25, 425 n. 7 (8th Cir.) (en banc), cert. denied, 120 S.Ct. 402 (1999).
In order to constitute a liberty interest, an individual must have a legitimate claim or entitlement to the subject of the deprivation which rises to more than a unilateral hope, or expectation. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 459 (1989). A protected liberty interest may arise from either the Due Process Clause of the U.S. Constitution, itself, or from a state-created statutory entitlement. Hewitt v. Helms, 459 U.S. 460, 466 (1983); Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002) (citations omitted).
Liberty Inherent in the Due Process Clause
The Due Process Clause of its own force does not afford a prisoner a liberty interest in remaining in the general prison population. Lekas v. Briley 405 F.3d 602, 607 (7th Cir. 2005). See also Holly v. Woolfolk, 415 F.3d 678, 2005 WL 1661528 at *1 (7th Cir. 2005) (“being placed in segregation is too trivial an incremental deprivation of a convicted
2

prisoner's liberty to trigger the duty of due process”). Accord Christianson v. Clarke, 932 F. Supp. 1178, 1182 (D. Neb. 1996) (“[T]he Due Process Clause itself does not protect any liberty interest in remaining free from administrative segregation or protective custody.”). “[T]he notion of liberty inherent in the Fourteenth Amendment Due Process Clause is not implicated by” a placement or transfer which subjects a convicted prisoner to more severe conditions of confinement, without more. Cf. Meachum v. Fano, 427 U.S. at 225 (“That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.”).1
Similarly, interprison transfers, in and of themselves, do not trigger due process protections, because convicted prisoners have no liberty interest under the Due Process Clause in being assigned to any particular cell or facility. Hewitt v. Helms, 459 U.S. at 468 (transfer to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence). See also Montayne v. Haymes, 427 U.S. 236, 242 (1976) (“The [Due Process] Clause does not require hearings in connection with transfers whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive”). Therefore, “the notion of liberty inherent in the Fourteenth Amendment Due Process Clause is not implicated by” a placement or transfer which subjects a convicted prisoner to more severe conditions of confinement, without more.
State-Created Liberty Interest
Consequently, the plaintiff’s liberty interest, if any, must emanate from state law. The plaintiff's claim to a state-created liberty interest is governed by the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472 (1995). “Sandin found no liberty interest protecting against a 30-day assignment to segregated confinement because [the assignment] did not ‘present a dramatic departure from the basic conditions of [the inmate's] sentence.’” Wilkinson v. Austin, 125 S.Ct. at 2394, quoting Sandin, 515 U.S. at 485.
In Sandin, the Court substantially narrowed the circumstances in which a state-created liberty interest arises:
The time has come to return to the due process principles we believe were
1For a convicted state prisoner, a liberty interest traceable to the Due Process Clause itself, instead of to state law, is limited only to freedom from restraints which “exceed[ ] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” Sandin v. Conner, 515 U.S. 472, 484 (1995). “Examples would be involuntary administration of psychotropic medication, see Washington v. Harper, 494 U.S. 210, 221-22 ... (1990), or involuntary transfer to a state mental hospital for treatment, see Vitek v. Jones, 445 U.S. 480, 494 ... (1980).” Mitchell v. Horn, 318 F.3d 523, 531 n. 4 (3d Cir. 2003), citing Sandin, 515 U.S. at 484.
3

correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause .... But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
Id. at 483-84 (citations omitted). Therefore, to demonstrate a liberty interest created by state law, the plaintiff must show that the protested conditions exceed the normal range and limits of custody and impose “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id.
However, the Eighth Circuit has “consistently held that administrative and disciplinary segregation are not atypical and significant hardships under Sandin.” Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002). Accord Kennedy v. Blankenship, 100 F.3d 640, 642 n. 2, 643 (8th Cir.1996) (placement in punitive isolation was not an atypical and significant deprivation even though the prisoner faced restrictions in privileges regarding mail, telephone, visitation, commissary, and personal possessions). See also Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003): “We have consistently held that a demotion to segregation, even without cause, is not itself an atypical and significant hardship.” The absence of contact visitation, exercise privileges, and chapel rights for 37 days did not constitute an atypical and significant hardship. Id.
In Nebraska, deprivation of good-time credit implicates a liberty interest sufficient to require due process. Dailey v. Nebraska Dept. of Corr. Servs., 578 N.W.2d 869, 873 (1998). See generally Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974) (when a state provides a right to good time and specifies the methods of forfeiture, an inmate has a constitutionally-protected liberty interest entitling him or her to procedures designed to ensure that the state-created right is not arbitrarily abrogated).
On the other hand, the Nebraska courts have rejected the argument that segregation alone constitutes an atypical and significant hardship giving rise to a liberty interest under state law. See, e.g., Martin v. Curry, 690 N.W.2d 186, 192 (Neb. App. 2004) (inmate had no clearly established liberty interest when prison officials extended his tentative release date from disciplinary segregation and placed him on administrative confinement). See Thompson v. Nebraska Dept. of Correctional Services, 2002 WL 857327 at *6 (Neb. App. May 7, 2002) (unpublished): “Thompson has no protected liberty interest that was violated by her placement in disciplinary segregation. Disciplinary segregation alone is not an atypical and significant hardship, and Thompson does not have a state-created right that is being arbitrarily abrogated, because her good time is not affected.” See also Christianson v. Clarke, 932 F. Supp. 1178, 1183 (D. Neb. 1996): “An allegation by an inmate that his due process rights were violated by virtue of his placement in administrative segregation, without more, does not implicate a liberty interest.”
4

Allegations of Conspiracy
In the absence of an “atypical and significant hardship,” a change in conditions of confinement does not inflict an injury cognizable under the Due Process Clause, even if prison officials harbor punitive motives. The Court in Sandin rejected the argument that action taken for punitive purposes necessarily implicates a liberty interest: “Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation.” Sandin v. Conner, 515 U.S. at 484 (distinguishing convicted prisoners from pretrial detainees who “may not be punished prior to an adjudication of guilt in accordance with due process of law”). As to convicted prisoners, “[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.” Id. at 485.
Thus, a plaintiff’s accusations of conspiracy or improper motive cannot create a liberty interest where none otherwise exists. The factors bearing on whether placement in segregation imposes the kind of atypical and significant hardship which gives rise to a liberty interest are objective, i.e.: (1) the conditions of confinement in segregation; (2) the length of time spent in segregation; and (3) the effect, if any, on the duration of the prisoner’s incarceration. Sandin v. Conner, 515 U.S. at 486-87.
In Wilkinson v. Austin, 125 S.Ct. 2384 (2005), for example, despite the usual rule that an interprison transfer to a maximum security facility with less favorable conditions is within the normal limits of a conviction, transfer to Ohio’s “Supermax facility (OSP),” unquestionably gave rise to a liberty interest under the principles expressed in Sandin. Conditions there are more restrictive than any other form of incarceration in Ohio, including conditions on death row. Id. at 2389. Placement at OSP lasts for an indefinite period, limited only by an inmate's maximum prison term, and parole eligibility while at OSP is suspended. Id.2
2“For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration.... While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP.” Wilkinson v. Austin, 125 S.Ct. 2384, 2394-95 (2005) (emphasis added).
5

The plaintiff describes disgraceful conditions of confinement in segregation. However, he does not establish the other two Sandin factors. Unlike the plaintiffs in Wilkinson v. Austin, the plaintiff does not allege that placement in segregation affects the duration of his incarceration. As for the length of time the plaintiff has remained in segregation, the courts have not developed a consensus regarding how much time in segregation can be considered an atypical and significant hardship. On the outer end of the spectrum, “indefinite” placement in segregation may create, or contribute to, the deprivation of a liberty interest within the meaning of Sandin, i.e., an atypical and significant hardship. Wilkinson v. Austin, 125 S.Ct. at 2394-95. The Third Circuit Court of Appeals held in Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000), that eight years in administrative confinement, during which the plaintiff remained locked in his cell for all but two hours per week, was denied contact with his family, visits to the library and participation in any education, vocational, or other activities, clearly implicated a protected liberty interest.
On the other hand, the Third Circuit has held that administrative confinement for fifteen months did not impose an atypical and significant hardship. Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997). Similarly, in Jones v. Baker, 155 F.3d 810, 813 (6th Cir. 1998), the Sixth Circuit did not consider confinement in administrative segregation for two and one-half years an atypical and significant hardship.
In this case, while the plaintiff describes deplorable conditions of confinement in segregation, the length of time he has spent there, coupled with the severity of those conditions, is not yet “outside the ordinary realm of what is to be expected of prison life,”3 and the placements in segregation have had no effect on the overall duration of the plaintiff’s period of imprisonment. As a result, the plaintiff has not met the threshold test for a liberty interest created by state law, i.e., “an atypical and significant hardship in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. Because the plaintiff has no liberty interest arising under the Due Process Clause itself or arising under state law, he did not suffer a deprivation of liberty entitling him to the protections of the Due Process Clause. Therefore, the plaintiff’s due process claims must be dismissed.
Medical Defendants
During the relevant times, the medical defendants were health care providers under contract with DCS to treat inmates. As such, they acted under color of state law for purposes of the plaintiff’s claims pursuant to 42 U.S.C. § 1983. See West v. Atkins, 487 U.S. 42, 51-56 (1988) (physician under contract with state to treat inmates at state prison acted under color of state law); Burke v. North Dakota Dept. of Corrections & Rehabilitation, 294 F.3d 1043, 1044 (8th Cir. 2002) (plaintiff stated a claim for relief under § 1983 against medical-services contractor for North Dakota inmates; corporation acting under color of state law can be liable under § 1983 for its own policies if such policies are unconstitutional).
3 Christianson v. Clarke, 932 F. Supp. 1178, 1182 (D. Neb. 1996), citing Sandin.
6

While deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment, Estelle v. Gamble, 429 U.S. 97, 105-06 (1976), the plaintiff’s claims against Dr. Conley, Dr. Williams and Dave Thomas, the Medical Director at TSCI, simply do not amount to a violation of the Eighth Amendment. The facts, as described by the plaintiff, relate only to the refusal of those defendants to exercise their professional judgment in accordance with the plaintiff’s view of his medical needs.
“[D]eliberate indifference is akin to criminal recklessness, which demands more than negligent misconduct,” Olson v. Bloomberg, 339 F.3d 730, 736 (8th Cir. 2003), and more than a disagreement over the proper course of treatment. Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002). The plaintiff does not allege a complete absence of treatment or similar conduct, as in Burke v. North Dakota Dept. of Corrections and Rehabilitation, 294 F.3d at 1044 (plaintiff “alleged that he was denied treatment entirely; that NDDCR's medical director ... prevented him from being seen by doctors; and that she was using her position to block his treatment because of his prior lawsuits against her.”). The plaintiff requested medical care, and the defendants examined and treated him. Even if the plaintiff would have benefitted from additional or different treatment, more than even gross negligence is necessary to rise to the level of a constitutional violation. Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000). See also Kayser v. Caspari, 16 F.2d 280, 281 (8th Cir. 1994) (plaintiff’s disagreement with the course of treatment provided to him is not a sufficient basis for an Eighth Amendment claim).
The plaintiff’s factual allegations against the medical defendants do not state a claim on which relief may be granted under the federal civil rights laws. Therefore, filing no. 41, the Motion to Dismiss filed by defendants-Conley, Williams and Thomas, will be granted.4
Harold W. Clarke and Michael Kenney
There is no equivalent in the federal civil rights laws to the common law tort liability based on respondeat superior. Under 42 U.S.C. § 1983, a defendant may not be held liable on principles of vicarious liability or respondeat superior for constitutional injuries allegedly inflicted by other persons. See, e.g., Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 778 (8th Cir. 2001), citing Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 405 (1997) and City of Canton v. Harris, 489 U.S. 378, 385 (1989): “Rigorous standards of culpability and causation must be applied to ensure that [an
4With the dismissal of the plaintiff’s federal claims against defendants-Elizabeth Conley, M.D., Janssen Williams, M.D. and Dave Thomas, the court declines to exercise supplemental jurisdiction over any state-law claims asserted against those defendants. See 28 U.S.C. § 1367 (a federal district court may decline to exercise supplemental jurisdiction over claims arising under state law when the claim(s) over which the court has original jurisdiction have been dismissed). Therefore, the dismissal of the plaintiff’s federal claims will be with prejudice, but any claims arising under state law against defendantsConley, Williams and Thomas will be dismissed without prejudice.
7

employer] is not held liable solely for the actions of its employees .... The purpose of such a stringent standard is to prevent § 1983 liability from collapsing into state tort law or into respondeat superior liability, an intent not contemplated by § 1983.”
Similarly, supervisor liability under § 1983 must be based on some form of actual and direct participation in the constitutional violation. See, e.g., Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002): “We have held a supervisor is only liable ‘for an Eighth Amendment violation when the supervisor is personally involved in the violation or when the supervisor's corrective inaction constitutes deliberate indifference toward the violation.’” (Citation omitted.) Thus, this court will dismiss the plaintiff’s claims against Harold W. Clarke, former Director of DCS, and Michael Kenney, the Warden of NSP, insofar as the plaintiff’s claims against those defendants are based on vicarious liability. Insofar as the plaintiff’s claims may involve some form of direct participation by those defendants in constitutional violations, the claims are not dismissed. Whether any culpable participation by Clarke and Kenney occurred will have to await the development of a factual record.
Paul Church
In filing no. 51, I stated that the record did not reveal whether Paul Church had been properly served with process, as Mr. Church did not sign a receipt for the delivery of the summons and complaint by certified mail. Although another person signed for him, it was not clear whether that person was authorized to receive certified mail for Church or even whether Church was present at the location to which the certified mail was directed. However, I stated in filing no. 51 that the plaintiff could reassert his motion for default judgment as to Church, supported by sufficient information for the court to determine whether Church has been properly served. The plaintiff has done so. In attachments to filing no. 56, the plaintiff has established that Church received the summons and complaint sent by the U.S. Marshal. However, the plaintiff has not complied with the requirements of Fed. R. Civ. P. 55 in order to obtain a default judgment. More important, he has not stated a claim on which relief may be granted as to Church.
The plaintiff states that he is a devout Muslim who requires kosher meals. His food trays are often contaminated by the presence of meat or meat gravy together with dairy products, a deviation from his religious practices for which he holds Church responsible. Church is the Food Service Director employed by Aramark, the food service company which, pursuant to a contract with DCS, provides meals to inmates at TSCI.
However, in filing no. 56, the plaintiff has incorporated an Inmate Interview Request (“kite”) which he wrote to Church complaining about the food service. Church responded to the kite as follows: “Mr. El-Tabech, the TSCI food service is required to follow the DCS Master Menu. You are indeed asking for a special-made tray when you ask for the elimination of meat, gravy, jello, and pudding from your tray. Food Service cannot honor special tray requests and must serve the foods indicated on the master menu.” Therefore, the plaintiff’s own submission clearly indicates that Church is not responsible for the policy to which the plaintiff objects, and Church lacks the power to deviate from the terms of the
8

contract between his employer, Aramark, and DCS.
Therefore, the plaintiff’s claim concerning the obstruction of his religious practices will not be dismissed, but Paul Church, who, by the plaintiff’s own submissions, has not caused the problem and has no power to rectify it, will be dismissed. Therefore, filing no. 56, the plaintiff’s Motion for Default Judgment against Defendant Paul Church, is denied. In addition, Paul Church is dismissed from this litigation as a defendant because the plaintiff has not stated a claim on which relief may be granted as to him.5 See 28 U.S.C. § 1915A(b)(1), which directs the court to screen prisoner complaints and dismiss matters which fail to state a claim for relief. Accord 28 U.S.C. § 1915(e)(2)(B)(ii) (same, under the in forma pauperis statute).
Eighth Amendment Claims
The plaintiff’s claims of cruel and unusual punishment are inherently factual. A motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) tests only the legal sufficiency of the plaintiff's complaint if the factual allegations in the complaint are accepted as true. Springdale Educ. Ass'n v. Springdale School Dist., 133 F.3d 649, 651 (8th Cir. 1998). See also Browning v. Clinton, 292 F.3d 235, 241-42 (D.C. Cir. 2002): “[W]e accept the plaintiff's factual allegations as true and construe the complaint ‘liberally,’ ‘grant[ing] plaintiff[ ] the benefit of all inferences that can be derived from the facts alleged,’ .... At the Rule 12(b)(6) stage, we do not assess ‘the truth of what is asserted or determin[e] whether a plaintiff has any evidence to back up what is in the complaint.’” (Citations omitted.) Thus, a claim should be liberally construed in the light most favorable to the plaintiff and should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994).
In light of that strict standard, filing no. 45, the DCS defendants’ motion to dismiss, will be denied insofar as the motion pertains to the plaintiff’s Eighth Amendment and related claims. “The Eighth Amendment prohibits punishments that deprive inmates of the minimal civilized measure of life's necessities .... However, any analysis of confinement conditions must be based on the totality of the circumstances .... We have found a constitutional violation where inmates were forced to work without protective gear ‘in a shower of human excrement.’... We have also ordered prisons to provide protective gear and to warn of the dangers of working in AIDS-contaminated waste .... We have similarly found a violation where an inmate was forced to endure a cell covered with filth and human waste for two full years .... [T]he length of time a prisoner is subjected to harsh conditions is a critical factor in our analysis.” Smith v. Copeland, 87 F.3d 265, 268-69 (8th Cir. 1996) (citations omitted). See also Owens v. Scott County Jail, 328 F.3d 1026, 1027 (8th Cir.
5The claim regarding interference with the plaintiff’s First Amendment religious rights may still be asserted against the appropriate defendant(s), whether that would be the Director of DCS or some other party or parties.
9

2003) (per curiam) (determining that five weeks of exposure to unsanitary conditions might be sufficient to constitute a viable Eighth Amendment claim and remanding for a factual determination whether the conditions of pretrial detention were unconstitutionally punitive):
While reviewing the totality of circumstances of Owens's confinement ... we focus on the length of his exposure to unsanitary conditions and how unsanitary the conditions were, see Hutto v. Finney, 437 U.S. 678, 686-87 ... (1978) (filthy, overcrowded cell might “be tolerable for a few days and intolerably cruel for weeks or months”); Whitnack, 16 F.3d at 958 (length of time required for conditions to be unconstitutional decreases as level of filthiness increases).
Owens slept next to a toilet for roughly five weeks. The district court emphasized that Owens was “only in this situation for a limited time.” Yet, five weeks is longer than other cases where we ruled that exposure to unsanitary conditions was not unconstitutional because of the brevity of exposure. See, e.g., Smith, 87 F.3d at 265 (no constitutional violations where pretrial detainee was confined in cell with overflowed toilet for four days); White v. Nix, 7 F.3d 120, 121 (8th Cir. 1993) (no constitutional violation where pretrial detainee was confined in unsanitary cell for eleven days); Goldman v. Forbus, 17 Fed. Appx. 487, 488, 2001 WL 838997 (8th Cir. 2001) (unpublished per curiam) (no constitutional violation where pretrial detainee slept six nights on floor next to toilet). Indeed, we have noted the need to be “especially cautious about condoning conditions that include an inmate's proximity to human waste.” See Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990). Hence, we reverse the district court's ruling that Huff was entitled to judgment as a matter of law and remand for further proceedings.
See also Tokar v. Armontrout, 97 F.3d 1078, 1082 n. 4 & 5 (8th Cir. 1996).
“The ‘cruel and unusual punishments’ standard applies to the conditions of a prisoner’s confinement .... While ‘the primary concern of the drafters was to proscribe tortures and other barbarous methods of punishment,’ the Supreme Court's ‘more recent cases [show that] [t]he [Eighth] Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’... ‘No static test can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Chandler v. Crosby, 379 F.3d 1278, 1288-89 (11th Cir. 2004) (citations omitted).
Remaining Claims
The plaintiff’s remaining claims are factually intertwined with the Eighth Amendment allegations. For example, the plaintiff complains of the meager amount of time he is
10

permitted to have access to legal materials in segregation, and he alleges that the defendants deny him adequate opportunities for certain aspects of religious observance. He also asserts that he has been subjected to retaliation and harassment for the exercise of his First Amendment rights while in segregation. For example, personal items such as prescription eyeglasses, underwear and a sweatshirt have been seized from his cell.6 The allegations of the complaint as to those claims are legally sufficient to withstand the DCS defendants’ Motion to Dismiss. Therefore, with the dismissal of the plaintiff’s due process and medical claims, this litigation will proceed on the basis of the plaintiff’s remaining claims.
Preliminary Injunction
In filing no. 61, I directed the parties to address the plaintiff’s Motion for a Preliminary Injunction. I stated that in the Eighth Circuit, the courts engage in a balancing test of four factors (the “Dataphase factors”) when determining whether to issue a temporary restraining order (“TRO”) or preliminary injunction. The Dataphase factors are:
1. the threat of irreparable harm to the movant; 2. the balance between the harm to the movant and any injury that
temporary injunctive relief would inflict on the nonmoving party should the injunction issue; 3. the likelihood of success on the merits; and 4. the public interest.
6Although prison authorities have a great deal of discretion in running their institutions, they may not use their discretion to retaliate against an inmate for exercising First Amendment rights. See, e.g., Rouse v. Benson, 193 F.3d 936, 940 (8th Cir. 1999) (a prisoner may not be transferred in retaliation for his exercise of constitutionally protected rights). See also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (reversing dismissal of a retaliation claim):
In dismissing Mitchell's retaliation claim, the District Court failed to recognize that “[g]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc)). A prisoner alleging retaliation must show (1) constitutionally protected conduct, (2) an adverse action by prison officials ‘”sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights,’” and (3) “a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225) (alteration in original).
11

See, e.g., Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999); Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995); Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir. 1981) (en banc). The burden of proving that preliminary injunctive relief should be granted “rests entirely with the movant.” Goff v. Harper, 60 F.3d at 520. “[F]or an injunction to issue ‘a right must be violated’ and ... ‘the court must determine’ whether ‘a cognizable danger of future violation exists and that danger must be more than a mere possibility.’" Id. at 521 (citation omitted).
I find on the basis of the parties’ submissions that the Dataphase factors do not weigh in favor of pretrial relief for the plaintiff. No threat of irreparable harm has been demonstrated if this case simply proceeds through discovery and, if appropriate, to trial in the ordinary course.7 On the other hand, the injury to the nonmoving parties could be substantial if the court granted relief before the parties have even begun discovery. A great deal of deference is owed to prison officials regarding prison administration. As for the plaintiff’s likelihood of success on the merits, some of the plaintiff’s claims have survived the DCS defendants’ Motion to Dismiss. It now falls to him to substantiate those claims with evidentiary support. Filing no. 59, the plaintiff’s Motion for a Preliminary Injunction, is denied. Of course, if the plaintiff prevails on some or all of his remaining claims, injunctive relief can be incorporated into the judgment as appropriate.
Deposition
The plaintiff has no right to object to the defendants’ decision to take his deposition. The defendants do not have to offer any reciprocal courtesies of any kind. Discovery is a right under the Federal Rules of Civil Procedure. Because this case was filed without counsel by a prisoner, the case is exempt from the initial disclosure and planning conference requirements of Fed. R. Civ. P. 26(a)(1)(E)(iii) & 26(f). However, I will request that Magistrate Judge F. A. Gossett enter an Order Setting a Schedule for the Progression of this case. Filing no. 69, the plaintiff’s Objection to Motion to Depose a Confined Person, and filing no. 71, the plaintiff’s Objection to Order granting the Motion to Depose a Confined Person, are denied. If the plaintiff’s objections have caused the deposition to be rescheduled, the defendants may file a new notice of deposition or request for leave to
7For example, to prevail on his claim regarding denial of the right of access to the courts, the plaintiff must show not only that the legal resources available to him are inadequate, but he must also establish that he suffered an actual injury to pending or contemplated legal claims. See, e.g., Bear v. Kautzky, 305 F.3d 802, 806 (8th Cir. 2002) (court issued preliminary injunction banning prison officials from enforcing a policy prohibiting prisoners from communicating with jailhouse lawyers; plaintiffs had pending postconviction claims and presented evidence of irreparable injury, i.e., that they had no satisfactory alternative way of obtaining legal assistance for their pending claims; also, prison officials presented no evidence of a legitimate penological purpose for the policy). In this case, the plaintiff may be able to make the required showing, but he has not as yet done so in affidavits or other materials contemplated by Fed. R. Civ. P. 65.
12

depose the plaintiff. The plaintiff shall not obstruct discovery, and, similarly, when the plaintiff serves his written discovery requests on the attorney for the defendants, the defendants’ attorney, too, shall cooperate in a timely and professional manner.
THEREFORE, IT IS ORDERED:
1. That filing no. 41, the Motion to Dismiss filed by defendants-Elizabeth Conley, M.D., Janssen Williams, M.D. and Dave Thomas (collectively “medical defendants”), is granted, and those defendants are dismissed from this litigation; the plaintiff’s claims arising under the federal civil rights laws against defendants-Conley, Williams and Thomas are dismissed with prejudice; any claims arising under state law against those defendants are dismissed without prejudice;
2. That filing no. 45, the Motion to Dismiss filed by defendants-Francis Britten, Mary Carmichael, Harold W. Clarke, Randy Cole, Michael Kenney and Douglas Sell (collectively “DCS defendants”), is granted in part and denied in part as follows:
a. The plaintiff’s claims based on the Due Process Clause are dismissed;
b. Insofar as the plaintiff’s claims against Harold W. Clarke and Michael Kenney are based on principles of vicarious liability or respondeat superior, such claims are dismissed; insofar as the plaintiff’s claims involve some form of direct participation by those defendants in constitutional violations, the claims are not dismissed;
3. That filing no. 56, the plaintiff’s Motion for Default Judgment against Defendant Paul Church, is denied; the plaintiff’s claims against Paul Church are dismissed pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii), because the plaintiff’s own submissions indicate that others are responsible for the deprivations alleged;
4. That filing no. 57, the plaintiff’s Motion to Strike Defendants’ Supplemental Brief, is denied, and leave to file the brief is granted nunc pro tunc;
5. That filing no. 59, the plaintiff’s Motion for a Preliminary Injunction, is denied;
6. That filing no. 65, the Objection to Motion for Preliminary Injunction filed by the medical defendants is granted insofar as filing no. 65 is consistent with this Memorandum and Order;
7. That filing no. 69, the plaintiff’s Objection to Motion to Depose a Confined Person, is denied;
8. That filing no. 71, the plaintiff’s Objection to Order granting the Motion to Depose a Confined Person, is denied; and
13

9. That Magistrate Judge F. A. Gossett is requested to enter an Order Setting a Schedule for the Progression of this case.
DATED this 31st day of August, 2005. BY THE COURT: s/ Joseph F. Bataillon JOSEPH F. BATAILLON Chief District Judge
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•

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH,

)

)

Plaintiff,

)

)

v.

)

)

HAROLD W. CLARKE, ET AL.,

)

)

Defendants.

)

4:04CV3231 ANSWER

COME NOW the Defendants, Harold W. Clarke, Mary Carmichael, Dr. Randy

Kohl aka Randy Cole, Francis Britten, Dr. Douglas Sell and Michael Kenney, and

in answer to the Plaintiff’s Complaint, hereby admit, deny and allege as follows:

1. Paragraph I, “Preliminary Statement,” makes no allegations against

any Defendant, therefore Defendants neither admit nor deny the same.

2. Defendants deny the allegations contained in paragraph II,

“Jurisdictional Statement.”

3. Defendants admit the allegations in paragraph III (A) of the Complaint

to the extent that they admit that Plaintiff was an inmate committed to

the Nebraska Department of Correctional Services (hereinafter “DCS”)

and was housed in the Control Unit (hereinafter “CU”) of the Nebraska

State Penitentiary (hereinafter “NSP”) from April 25, 2001 to July 18,

2002, at which time Plaintiff was transferred to the Special

Management Unit (hereinafter “SMU”) of the Tecumseh State

Correctional Institution (hereinafter “TSCI”); that both the NSP and the

TSCI are maximum security prisons; that both the CU and the SMU

are segregation units; and that the Plaintiff’s address is 2725 N. Hwy.

1

50, P.O. Box 900, Tecumseh, NE 68450. Defendants deny the remainder of the allegations found in paragraph III (A) of the Complaint. 4. Defendants admit the allegations contained in paragraph III (B) (1) of the Complaint only to the extent that Harold Clarke was the Director of the DCS at all times relevant to the allegations in the Complaint. Defendants deny the remainder of the allegations found in paragraph III (B) (1) of the Complaint. 5. Defendants admit the allegations contained in paragraph III (B) (2) of the Complaint only to the extent that Mike Kenney was the Warden of the NSP at all times relevant to the allegations in the Complaint. Defendants deny the remainder of the allegations found in paragraph III (B) (2) of the Complaint. 6. Defendants admit the allegations contained in paragraph III (B) (3) of the Complaint only to the extent that Francis Britten was the Warden of the TSCI at all times relevant to the allegations in the Complaint. Defendants deny the remainder of the allegations found in paragraph III (B) (3) of the Complaint. 7. Defendants admit the allegations contained in paragraph III (B) (4) of the Complaint only to the extent that Randy Cole was the Medical Director of the DCS at all times relevant to the allegations in the Complaint. Defendants deny the remainder of the allegations found in paragraph III (B) (4) of the Complaint.
2

8. With respect to the allegations found in paragraph III (B) (5) of the Complaint, Defendants note that Elizabeth Conley was dismissed from this case pursuant to the Order found at Filing 72, therefore Defendants neither admit nor deny the same.
9. With respect to the allegations found in paragraph III (B) (6) of the Complaint, Defendants note that Janssen Williams was dismissed from this case pursuant to the Order found at Filing 72, therefore Defendants neither admit nor deny the same.
10. With respect to the allegations found in paragraph III (B) (7) of the Complaint, Defendants note that Dave Thomas was dismissed from this case pursuant to the Order found at Filing 72, therefore Defendants neither admit nor deny the same.
11. Defendants admit the allegations contained in paragraph III (B) (8) of the Complaint only to the extent that Douglas Sell was employed by the TSCI at all times relevant to the allegations in the Complaint. Defendants deny the remainder of the allegations found in paragraph III (B) (8) of the Complaint.
12. To the extent that the allegations found in paragraph III (B) (9) of the Complaint may be construed as allegations against Defendant Paul Church, pursuant to the Order found at Filing 11, Defendants note that Paul Church was dismissed from this case pursuant to the Order found at Filing 72, therefore Defendants neither admit nor deny the same.
3

13. Defendants admit the allegations contained in paragraph III (B) (10) of the Complaint only to the extent that Mary Carmichael was employed by the DCS at all times relevant to the allegations in the Complaint. Defendants deny the remainder of the allegations found in paragraph III (B) (10) of the Complaint.
14. The allegations found in paragraph IV of the Complaint make no allegations against any Defendant, therefore Defendants neither admit nor deny the same.
15. Admit that on April 25, 2001, Plaintiff attempted to escape from the NSP. Deny the remainder of the allegations found in paragraph V(A)(1) of the Complaint.
16. Admit the allegations found in paragraph V(A)(1)(a) of the Complaint only to the extent that they are alleged to have occurred on or about April 25 and 26, 2001.
17. Deny the allegations found in paragraph V(A)(2) of the Complaint. 18. Deny the allegations found in paragraph V(A)(3) of the Complaint. 19. Deny the allegations found in paragraph V(A)(4) of the Complaint. 20. Deny the allegations found in paragraph V(A)(5) of the Complaint. 21. Deny the allegations found in paragraph V(A)(6) of the Complaint. 22. Deny the allegations found in paragraph V(A)(7) of the Complaint. 23. Deny the allegations found in paragraph V(A)(8) of the Complaint. 24. Deny the allegations found in paragraph V(A)(9) of the Complaint. 25. Deny the allegations found in paragraph V(A)(10) of the Complaint.
4

26. Deny the allegations found in paragraph V(A)(11) of the Complaint. 27. Deny the allegations found in paragraph V(A)(12) of the Complaint. 28. Deny the allegations found in paragraph V(A)(13) of the Complaint. 29. Deny the allegations found in paragraph V(A)(14) of the Complaint. 30. Deny the allegations found in paragraph V(A)(15) of the Complaint. 31. Deny the allegations found in paragraph V(A)(16) of the Complaint. 32. Deny the allegations found in paragraph V(A)(17) of the Complaint. 33. Deny the allegations found in paragraph V(A)(18) of the Complaint. 34. Deny the allegations found in paragraph V(A)(19) of the Complaint. 35. Deny the allegations found in paragraph V(A)(1)(b)(1) of the
Complaint. 36. Deny the allegations found in paragraph V(A)(1)(b)(2) of the
Complaint. 37. Deny the allegations found in paragraph V(A)(1)(b)(3) of the
Complaint. 38. Deny the allegations found in paragraph V(A)(1)(b)(4) of the
Complaint. 39. Deny the allegations found in paragraph V(A)(1)(b)(5) of the
Complaint. 40. Deny the allegations found in paragraph V(A)(1)(b)(6) of the
Complaint. 41. Deny the allegations found in paragraph V(A)(2) of the Complaint. 42. Deny the allegations found in paragraph V(A)(2)(a) of the Complaint.
5

43. Deny the allegations found in paragraph V(A)(2)(b)(1) of the Complaint.
44. Deny the allegations found in paragraph V(A)(2)(b)(2) of the Complaint.
45. Deny the allegations found in paragraph V(A)(2)(b)(3) of the Complaint.
46. Deny the allegations found in paragraph V(A)(2)(b)(4) of the Complaint.
47. Deny the allegations found in paragraph V(A)(2)(b)(5) of the Complaint.
48. Deny the allegations found in paragraph V(A)(2)(b)(6) of the Complaint.
49. Deny the allegations found in paragraph V(A)(2)(b)(7) of the Complaint.
50. Deny the allegations found in paragraph V(A)(2)(b)(8) of the Complaint.
51. Deny the allegations found in paragraph V(A)(2)(C)(1) of the Complaint.
52. Deny the allegations found in paragraph V(A)(2)(C)(1)(a) of the Complaint.
53. Deny the allegations found in paragraph V(A)(2)(C)(1)(b) of the Complaint.
6

54. Deny the allegations found in paragraph V(A)(2)(C)(2) of the Complaint.
55. Deny the allegations found in paragraph V(A)(2)(b)(3) of the Complaint.
56. Deny the allegations found in paragraph V(A)(2)(C)(1) of the Complaint.
57. Deny the allegations found in paragraph V(A)(2)(C)(2) of the Complaint.
58. Deny the allegations found in paragraph V(A)(2)(C)(3) of the Complaint.
59. Deny the allegations found in paragraph V(A)(2)(C)(4) of the Complaint.
60. Deny the allegations found in paragraph V(A)(2)(C)(5) of the Complaint.
61. Deny the allegations found in paragraph V(A)(2)(D)(1) of the Complaint.
62. Deny the allegations found in paragraph V(A)(2)(D)(1)(a) of the Complaint.
63. Deny the allegations found in paragraph V(A)(2)(D)(1)(b) of the Complaint.
64. Deny the allegations found in paragraph V(A)(2)(D)(1)(c) of the Complaint.
7

65. Deny the allegations found in paragraph V(A)(2)(D)(2)(a) of the Complaint.
66. Deny the allegations found in paragraph V(A)(2)(D)(2)(b)(1) of the Complaint.
67. Deny the allegations found in paragraph V(A)(2)(D)(2)(b)(2)(a) of the Complaint.
68. Deny the allegations found in paragraph V(A)(2)(D)(2)(b)(2)(b) of the Complaint.
69. Deny the allegations found in paragraph V(A)(2)(D)(2)(b)(2)(c) of the Complaint.
70. Deny the allegations found in paragraph V(A)(2)(D)(2)(b)(2)(d) of the Complaint.
71. Deny the allegations found in paragraph V(A)(2)(D)(3)(1) of the Complaint.
72. Deny the allegations found in paragraph V(A)(2)(D)(3)(2) of the Complaint.
73. Deny the allegations found in paragraph V(A)(2)(D)(3)(3) of the Complaint.
74. Deny the allegations found in paragraph V(A)(2)(D)(4) of the Complaint.
75. Deny the allegations found in paragraph V(A)(2)(D)(5) of the Complaint.
8

76. Deny the allegations found in paragraph V(A)(2)(D)(5)(1) of the Complaint.
77. Deny the allegations found in paragraph V(A)(2)(D)(5)(2) of the Complaint.
78. Deny the allegations found in paragraph V(A)(2)(D)(6) of the Complaint.
79. Deny the allegations found in paragraph V(B)(1) of the Complaint. 80. Deny the allegations found in paragraph V(B)(2) of the Complaint. 81. Deny the allegations found in paragraph V(B)(2)(I)(1) of the Complaint. 82. Deny the allegations found in paragraph V(B)(2)(I)(2) of the Complaint. 83. Deny the allegations found in paragraph V(B)(2)(II)(1) of the
Complaint. 84. Deny the allegations found in paragraph V(B)(2)(II)(2) of the
Complaint. 85. Deny the allegations found in paragraph V(B)(2)(II)(3) of the
Complaint. 86. Deny the allegations found in paragraph V(B)(3) of the Complaint. 87. Deny the allegations found in paragraph V(B)(4)(I) of the Complaint. 88. Deny the allegations found in paragraph V(B)(4)(II) of the Complaint. 89. Paragraph VI, and all subparagraphs thereto, make no allegations
against any Defendant, therefore Defendants neither admit nor deny the same.
9

DEFENSES 1. Allege that the Complaint fails to state a cause of action against the Defendants upon which relief can be granted. 2. Allege that the Defendants at all times acted in good faith and are immune from suit and an award of damages against them in their individual capacities. 3. Allege that any request for damages against the Defendants, in their official capacities, is barred by the States' sovereign immunity and by the Eleventh Amendment to the United States Constitution. 4. Alleges that the Plaintiff has not exhausted his available state remedies prior to filing as is required by 42 U.S.C. ' 1997e(a). 5. Allege that this Court lacks jurisdiction over any pendent state law tort claim due to Nebraska’s limited waiver of sovereign immunity.
JURY DEMAND The Defendants, by and though counsel, pursuant to Fed. R. Civ. P. 38(b), hereby demand a trial by jury fo r all triable issues in this action.
10

WHEREFORE, the Defendants respectfully request that this matter be

dismissed.

HAROLD W. CLARKE, MARY CARMICHAEL, DR. RANDY KOHL AKA RANDY COLE, FRANCIS BRITTEN, DR. DOUGLAS SELL AND MICHAEL KENNEY, in their official and individual capacities, Defendants

BY: JON BRUNING #20351 Attorney General

BY: s/Timothy P. Sullivan Timothy P. Sullivan #21883 Assistant Attorney General 2115 State Capitol Lincoln, NE 68509 (402) 471-2682 Fax: (402) 471-2957 E-mail: tim.sullivan@ago.ne.gov

CERTIFICATE OF SERVICE

I hereby certify that on September 15, 2005, I electronically filed the

foregoing Answer with the Clerk of the Court using the CM/ECF system and that

a true and accurate copy of the foregoing was served on the Plaintiff, pro se,

herein by depositing said copy into the United States Mail, first class postage

prepaid, addressed to Mohamed A. El-Tabech at P.O. Box 900, Tecumseh, NE

68450.

58-245-2

s/Timothy P. Sullivan Timothy P. Sullivan Assistant Attorney General 2115 State Capitol Lincoln, NE 68509 (402) 471-2682 Fax: (402) 471-2957 E-mail: tim.sullivan@ago.ne.gov

11

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
vs. HAROLD W. CLARKE, et al.,
Defendants.

)

)

)

4:04cv3231

)

)

MEMORANDUM AND ORDER

)

)

)

)

This matter is before the court on the following pending motions: (1) filing no. 75, the Motion for Class Certification filed by the plaintiff, Mohamed A. El-Tabech; (2) filing no. 76, the plaintiff's Motion for Reconsideration of the Memorandum and Order of August 31, 2005; (3) filing no. 79, a letter from the plaintiff which the Clerk of Court has docketed as a Motion to Progress; (4) filing no. 80, the plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction; (5) filing no. 93, a letter from the plaintiff which the Clerk of Court has docketed as a Motion for Ruling; (6) filing no. 98, the plaintiff's Motion to Extend All Dates in Order Setting Schedule for Progression of Case; (7) filing no. 99, the defendants' Objection to Motion to Extend Dates in Progression Order; (8) filing no. 100, the plaintiff's Motion for Leave To File Amended Complaint to Add Two Defendants; and (9) filing no. 102, the defendants' Objection to Motion to Amend Complaint and Add Parties. Pursuant to 42 U.S.C. § 1983, the plaintiff, a prisoner in the custody of the Nebraska Department of Correctional Services ("DCS"), has sued DCS employees in their individual and official capacities for monetary, declaratory and injunctive relief relating to conditions in segregation as well as claims of excessive force, retaliation and denial of First and Eighth Amendment rights.
1

In filing no. 75, the plaintiff moves to certify a class of "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." For several reasons, the motion must be denied. First, when he filed the motion, the plaintiff was proceeding pro se, and pro se parties may not serve as class representatives. See, e.g., Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) ("it is plain error to permit this imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action."). See also Fymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000): "A litigant may bring his own claims to federal court without counsel, but not the claims of others." Accord Allnew v. City of Duluth, 983 F.Supp. 825, 831 (D. Minn. 1997).
Second, the plaintiff is now represented by counsel, but counsel has not renewed the motion. Even if his attorney did move to certify a class, the scope of the class as defined by the plaintiff in filing no. 75 is overly broad and vague. Also, the plaintiff has made no effort to apply the requirements of Fed. R. Civ. P. 23(a) to this case1 or to identify which of the three kinds of classes pursuant to Rule 23(b) he advocates. Filing no. 75 will be denied.
In filing no. 76, the plaintiff asks for reconsideration of my Memorandum and Order of August 31, 2005 (filing no. 72) insofar as I dismissed his due process claim and his
1Fed. R. Civ. P. 23(a) requires the plaintiff to show that: 1. the class is so numerous that joinder of all members is impracticable ("numerosity"); 2. there are questions of law or fact common to the class ("commonality"); 3. the claims or defenses of the representative parties are typical of the claims or defenses of the class ("typicality"); and 4. the representative parties will fairly and adequately protect the interests of the class ("adequacy").
2

claims against the medical defendants, i.e., Dr. Conley, Dr. Williams and Medical Director
Dave Thomas. I adhere to my view expressed in filing no. 72 that the plaintiff’s factual
allegations against the medical defendants simply did not state a claim on which relief may
be granted under the federal civil rights laws. Therefore, filing no. 76 is denied as to
reinstatement of the claims against Dr. Conley, Dr. Williams and Dave Thomas.
However, filing no. 76 will be granted as to the plaintiff's due process claim. I note
first, that the defendants have not objected to filing no. 76. Also, in deciding that the
plaintiff had failed to allege a state-created liberty interest in light of the standards
discussed in Wilkinson v. Austin, 125 S.Ct. 2384 (2005), and Sandin v. Conner, 515 U.S.
472 (1995), I stated in filing no. 72:
[W]hile the plaintiff describes deplorable conditions of confinement in segregation, the length of time he has spent there, coupled with the severity of those conditions, is not yet "outside the ordinary realm of what is to be expected of prison life," and the placements in segregation have had no effect on the overall duration of the plaintiff’s period of imprisonment. As a result, the plaintiff has not met the threshold test for a liberty interest created by state law, i.e., "an atypical and significant hardship in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. Because the plaintiff has no liberty interest arising under the Due Process Clause itself or arising under state law, he did not suffer a deprivation of liberty entitling him to the protections of the Due Process Clause. Therefore, the plaintiff’s due process claims must be dismissed.
In filing no. 76, the plaintiff objects to my premise that his placement in segregation has "no
effect on the overall duration of [his] period of imprisonment." Although the plaintiff is
serving a life sentence, he contends that his "IM status" prolongs his sentence by rendering
him ineligible for sentence commutation and thus parole. While I do not necessarily adopt
the plaintiff's view, I reinstate the plaintiff's due process claim because it does not appear
beyond doubt that he can prove no set of facts entitling him to relief. Conley v. Gibson,
3

355 U.S. 41, 45-46 (1957); Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). Whether he has a liberty interest entitling him to due process may be addressed in the context of a motion for summary judgment. Thus, filing no. 76 is granted in part and denied in part as set forth above.
Filing no. 79, docketed as a Motion to Progress, and filing no. 93, docketed as a Motion for Ruling, are granted insofar as the plaintiff requests attention to his pending motions. The requested action is provided by the entry of this Memorandum and Order.
In filing no. 80, the plaintiff moves for a temporary restraining order ("TRO") and preliminary injunction to redress the restrictions on his access to the courts and the denial of kosher meals. The plaintiff filed his motion before retaining an attorney, and the issue of denial of access to the courts appears to be moot. As for the kosher meals, I explained in connection with the plaintiff's previous Motion for a TRO that the courts within the Eighth Circuit engage in a balancing test of four factors (the "Dataphase factors") when determining whether to issue a TRO or preliminary injunction. The Dataphase factors are:
1. the threat of irreparable harm to the movant; 2. the balance between the harm to the movant and any injury that
temporary injunctive relief would inflict on the nonmoving party should the injunction issue; 3. the likelihood of success on the merits; and 4. the public interest. See, e.g., Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999); Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995); Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir. 1981) (en banc). The burden of proving that preliminary injunctive relief should be granted "rests entirely with the movant." Goff v. Harper, 60 F.3d at 520. "[F]or an
4

injunction to issue 'a right must be violated' and ... 'the court must determine' whether 'a cognizable danger of future violation exists and that danger must be more than a mere possibility.'" Id. at 521 (citation omitted). As I concluded in connection with the plaintiff's previous motion, I find on the basis of the parties’ submissions that the Dataphase factors do not weigh in favor of pretrial relief for the plaintiff. No threat of irreparable harm has been demonstrated if this case proceeds through discovery and, if appropriate, to trial in the ordinary course. Filing no. 80 is denied.
Notwithstanding the defendants' Objections (filing nos. 99 and 102), I will grant filing no. 100, the plaintiff's Motion for Leave To File Amended Complaint to Add Two Defendants, and filing no. 98, the plaintiff's Motion to Extend All Dates in Order Setting Schedule for Progression of Case. Accordingly, the plaintiff's Amended Complaint (attachment to filing no. 100) is accepted for filing instanter. However, the plaintiff must also file the Amended Complaint as a new filing separate from filing no. 100. I will request that Magistrate Judge F. A. Gossett issue an Amended Progression Order.
THEREFORE, IT IS ORDERED: 1. That filing no. 75, the plaintiff's Motion for Class Certification, is denied; 2. That filing no. 76, the plaintiff's Motion for Reconsideration, is granted in part and denied in part: i.e., the plaintiff's due process claim is reinstated; the plaintiff's claims against Dr. Conley, Dr. Williams and Medical Director Dave Thomas are not reinstated; 3. That filing no. 79, the plaintiff's Motion to Progress, is granted; 4. That filing no. 80, the plaintiff's Motion for TRO and Preliminary Injunction, is denied; 5. That filing no. 93, the plaintiff's Motion for Ruling, is granted;
5

6. That filing no. 98, the plaintiff's Motion to Extend All Dates in Order Setting Schedule for Progression of Case, is granted; Magistrate Judge F. A. Gossett shall issue an Amended Progression Order;
7. That filing no. 99, the defendants' Objection to Motion to Extend Dates in Progression Order, is denied;
8. That filing no. 100, the plaintiff's Motion for Leave To File Amended Complaint to Add Two Defendants, is granted; the plaintiff's Amended Complaint (attachment to filing no. 100) is accepted for filing instanter, but the plaintiff must also file the Amended Complaint as a new filing separate from filing no. 100; and
9. That filing no. 102, the defendants' Objection to Motion to Amend Complaint to Add Parties, is denied.
DATED this 6th day of June, 2006. BY THE COURT:
s/Joseph F. Bataillon JOSEPH F. BATAILLON Chief District Judge
6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

) PLAINTIFF’S MOTION FOR PARTIAL

) SUMMARY JUDGMENT: FOURTH

)

CLAIM FOR RELIEF

)

)

)

)

Comes now Plaintiff, Mohamed A. El-Tabech, pursuant to Federal Rule of Civil Procedure 56, and moves for partial summary judgment on his Fourth Claim for Relief: Violation of the United States Constitution, Procedural Due Process Violations contained in his Amended Complaint (Filing #110) . There is no genuine issue as to any material fact regarding Plaintiff’s Fourth Claim for Relief in this case and the Plaintiff is entitled to judgment as a matter of law.
In support of this Motion, Plaintiff submits his Brief in Support of Motion for Partial Summary Judgment: Fourth Claim for Relief and Index of Evidence in Support of Motion for Summary Judgment: Fourth Claim for Relief (Filed Under Seal).

MOHAMED A. EL-TABECH, Plaintiff
BY: OGBORN, SUMMERLIN & OGBORN, P.C. V. GENE SUMMERLIN - 19611 MARNIE A. JENSEN - 22380 JUSTIN FIRESTONE - 23159
1

610 J Street, Suite 200 Lincoln, NE 68508 (402) 434-8040 BY: /s/ Marnie A. Jensen CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 27th day of March, 2007, the foregoing document was electronically filed using the CM/ECF system which sent notification of the filing to the following: Matthew Works Assistant Attorney General 2115 State Capitol Bldg. Lincoln, NE 68509 matthew.works@ago.ne.gov
/s/ Marnie A. Jensen
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

) PLAINTIFF’S MOTION FOR PARTIAL

) SUMMARY JUDGMENT: FIRST AND

)

SECOND CLAIMS FOR RELIEF

)

)

)

)

Comes now Plaintiff, Mohamed A. El-Tabech, pursuant to Federal Rule of Civil Procedure 56, and moves for partial summary judgment on his First and Second Claims for Relief: Violation of the Religious Land Use and Institutionalized Persons Act of 2000 (the “RLUIPA”) (42 U.S.C. § 2000cc et seq.) and Violation of the United States Constitution, Free Exercise of Religion: First and Fourteenth Amendments which are contained in his Amended Complaint (Filing #110) . There is no genuine issue as to any material fact regarding either of Plaintiff’s First or Second Claims for Relief in this case and the Plaintiff is entitled to judgment as a matter of law.
In support of this Motion, Plaintiff submits his Brief in Support of Motion for Partial Summary Judgment: First and Second Claims for Relief and Index of Evidence in Support of Motion for Summary Judgment: First and Second Claims for Relief (Exhibits Filed Under Seal).

1

MOHAMED A. EL-TABECH, Plaintiff BY: OGBORN, SUMMERLIN & OGBORN, P.C.
V. GENE SUMMERLIN - 19611 MARNIE A. JENSEN - 22380 JUSTIN FIRESTONE - 23159 610 J Street, Suite 200 Lincoln, NE 68508 (402) 434-8040 BY: /s/ Marnie A. Jensen
CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 30th day of March, 2007, the foregoing document was electronically filed using the CM/ECF system which sent notification of the filing to the following:
Matthew Works Assistant Attorney General 2115 State Capitol Bldg. Lincoln, NE 68509 matthew.works@ago.ne.gov
/s/ Marnie A. Jensen
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

)

APPLICATION FOR WRIT OF

)

HABEAS CORPUS AD

)

TESTIFICANDUM

)

)

)

)

Plaintiff Mohamed A. El-Tabech (“Mohamed”) hereby moves this Court pursuant to 28

U.S.C. §§ 2241(c)(5) and respectfully requests that the Court grant his application for a writ of

habeas corpus ad testificandum. In support of this Motion, Mohamed states as follows:

1. Mohamed has been incarcerated in the Tecumseh State Correctional Institution

since July 18, 2002. He filed this action on June 28, 2004.

2. The Amended Complaint in this action contains claims for prospective injunctive

relief and for damages under the Religious Land Use and Institutionalized Persons

Act, the First Amendment to the U.S. Constitution, and the Fourteenth

Amendment to the U.S. Constitution.

3. Mohamed is the primary witness regarding the claims contained in the Amended

Complaint. Mohamed’s ability to present his testimony is necessary and crucial to

each of the claims presented in the Amended Complaint.

4. Mohamed is indigent and is unable to work due to his classification status (Filing

#2). This Court granted him leave to proceed in forma pauperis on July 14, 2004

(Filing #5).

5. Mohamed therefore requests that this Court issue a Writ of Habeas Corpus ad
Testificandum directing Defendants, or anyone in their control in the Nebraska
Department of Correctional Services, to bring Mohamed from the Tecumseh State
Correctional Institution to the Roman L. Hruska Federal Courthouse, Courtroom
3, on May 21, 2007 at 8:30 a.m., and thereafter as long as trial proceeds.
6. Mohamed further requests that, due to his indigent status, the costs of such
transport be paid by the transporting body.
Dated this 10th day of May, 2007.
MOHAMED A. EL-TABECH Plaintiff.
BY: OGBORN, SUMMERLIN & OGBORN, P.C. GENE SUMMERLIN - 19611 MARNIE A. JENSEN - 22380 610 J Street, Suite 200 Lincoln, NE 68508 (402) 434-8040

BY:

/s/ Marnie A. Jensen

2

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 10th day of May, 2007, the foregoing document was electronically filed using the CM/ECF system which sent notification of the filing to the following: Matthew Works Assistant Attorney General 2115 State Capitol Bldg. Lincoln, NE 68509 matt.works@ago.ne.gov
/s/ Marnie A. Jensen
3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

)

)

ORDER

)

)

)

This matter came before the Court on Plaintiff’s Application for Writ of Habeas Corpus

Ad Testificandum (Filing #166). This Court, being fully advised in the premises, finds that this

application should be granted.

IT IS HEREBY ORDERED as follows:

(1) Defendants, or anyone in their control in the Nebraska Department of

Correctional Services shall transport, or arrange for the transportation of,

Plaintiff Mohamed A. El-Tabech to the Roman L. Hruska Federal

Courthouse, Courtroom 3, on May 21, 2007 at 8:30 a.m., and each day

thereafter as long as trial proceeds;

(2) All costs of such transport shall be borne by Defendants.

Dated this 11th day of May, 2007.

BY THE COURT
s/ David L. Piester
David L. Piester
United States Magistrate Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
v. HAROLD W. CLARKE, et al.,
Defendant.

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4:04cv3231

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MEMORANDUM AND ORDER

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This matter is before the court on plaintiff Mohamed A. El-Tabech’s (“El-Tabech”) motions for partial summary judgment, Filing Nos. 145, 150, and joint stipulation of facts, Filing No. 149. El-Tabech was born and raised in Beirut, Lebanon, where he resided until he was approximately twenty-five years old. El-Tabech alleges that he was born into, and has remained a sincere adherent to the Orthodox Muslim faith. Filing No. 110. On May 20, 1983, El-Tabech came to the United States on a visitor’s visa and on August 14, 1983, he was baptized into the Church of Jesus Christ of Latter Day Saints, also known as the Mormon religion.1 Filing No. 148, Attachment 1 (“Exhibit 2“). Before his visa expired, ElTabech filed for political asylum. El-Tabech then married Lynn El-Tabech and withdrew his application and filed for classification status as being married to an American citizen.2

1In early 2007, El-Tabech requested removal from the member list of the Mormon church. Filing No. 149.
2El-Tabech never acted on this petition and his wife later filed a petition to classify status for an alien relative. This petition was never processed due to El-Tabech’s subsequent arrest.

On June 24, 1984, El-Tabech’s wife, Lynn El-Tabech, was murdered. On that date, medical responders arrived at the El-Tabech home in Lincoln, Nebraska, and found Lynn El-Tabech “lying on a bed with a white terry cloth bathrobe belt tied tightly around her neck.” State v. El-Tabech, 405 N.W.2d 585, 588 (Neb. 1987). A jury later convicted El-Tabech of first-degree murder and use of a deadly weapon to commit a felony. Id.; El-Tabech v. Hopkins, 997 F.2d 386, 387 (8th Cir. 1993). The trial court sentenced ElTabech to consecutive terms of life imprisonment for the murder and twenty years for use of a deadly weapon. Id.
Following his sentencing in 1985, El-Tabech was remanded to the custody of the Nebraska Department of Correctional Services (“NDCS”) where he has since remained. While El-Tabech was incarcerated at the Nebraska State Penitentiary (“NSP”), a maximum security prison, our protagonist engaged in two escape attempts. First, NSP placed El-Tabech on administrative confinement after prison officials found him and another inmate crawling along the NSP fenceline in an attempt to escape on October 28, 1995. Filing No. 158; Filing No. 148, Attachment 1 (“Exhibit 4“). Then, on April 15, 2001, El-Tabech and three other inmates attempted an escape that involved hostages and weapons.3 Consequently, NSP officials transferred El-Tabech to the Control Unit (“CU”) at NSP, a segregation unit.
On July 18, 2002, El-Tabech was transferred to the Tecumseh State Correctional Institution (“TSCI”) where he is currently incarcerated. Upon his transfer to TSCI, prison
3El-Tabech maintains that he did not possess any knives during the April 25, 2001, escape attempt, although a report of the incident includes a statement that “[a]ll inmates participating in the escape attempt were reported to be in possession of weapons (knives). One hostage was assaulted with a knife, and received treatment from NSP medical personnel.” Filing No. 148, Attachment 1 (“Exhibit 4”).
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officials placed El-Tabech in the Special Management Unit (“SMU”), a segregation unit, and placed him on Intensive Management (“IM”) status. IM involves “removal of an inmate from general population for an indefinite period of time to maintain order and security within the institution.” Filing No. 148, Attachment 4 (“Exhibit 30”). IM status, a type of administrative segregation, is defined as the “confinement of an inmate when the inmate’s demonstrated behavior presents a high risk of physical danger to anyone with whom the inmate comes into contact.” Id.
IM status minimizes the contract between inmates and other inmates and staff. Francis Britten Dep. 62:8-17. Inmates receive an hour in the yard five days a week as well as three showers a week; they are fed in their cells; and inmates have access to telephone calls and the law library. Id. 64:15-20. Those inmates on IM status are housed in cells where they shower, live, and exercise in the same area, as opposed to inmates on administrative confinement who are afforded more freedom to access galleries to the exercise yard and the showers because such areas are not attached to their cells. Id. 65:1-25. Cells are illuminated by a regular light that can be controlled by the inmate, and there is a night-light that remains on at all times and cannot be turned off by the inmate. Id. 283:12-24. Inmates on IM status are not permitted to attend religious services, but they are able to communicate with religious coordinators by request, and inmates may obtain religious materials to listen to in their living areas. Id. 208:11-25.
According to the Administrative Regulations of Department of Correctional Services for the State of Nebraska, a “Unit Classification Committee” conducts reviews of an inmate’s continuation on Administrative Segregation every six months. Filing No. 148, Attachment 4 (“Exhibit 30”). The “Institutional Classification Committee” then reviews and
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refers all classification recommendations from the Unit Classification Committee to the Facility Administrator, who, in turn, approves assignments, continuations or removals. Id. The Facility Administrator also approves all reports of weekly and bimonthly reviews conducted on inmates on Administrative Segregation. Id. An inmate must appeal the Facility Administrator’s decision within fifteen calendar days of the receipt of the decision. Id. The Administrative Segregation Review Board hears inmates’ appeals from the Facility Administrator’s decisions, and the Director’s Review Committee finalizes the approval of assignment, continuation, or removal from IM status and “Transition Confinement” status. Id.
The Unit Classification Committee conducts formal reviews of each Administrative Segregation inmate every two weeks after sixty continuous days of segregation, and inmates receive notice of the Segregation Status Review and have an opportunity to appear before the Unit Classification Committee once a month. Id. Inmates must receive written notice of a classification hearing on an inmate’s placement, continuation, or removal from administrative segregation at least forty-eight hours prior to the hearing. Id. An inmate may request a continuance of the hearing by making a written request for additional time to prepare a response. Id. The Unit Classification Committee conducts the hearing, and the inmate has the opportunity to refute the information and present and submit any pertinent information. Id. The Unit Classification Committee makes a written record of the Segregation Status Review that is submitted to the Facility Administrator. Id. The Facility Administrator reviews the record and either approves it or returns it for further action.
El-Tabech maintains that he has been classified as IM status since March 22, 2002, and that this status prohibits him from interacting with other inmates and only permits him
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three showers per week unless he earns a fourth shower pursuant to the incentive program. Filing No. 148, Attachment 2 (“Exhibit 28 “ - El-Tabech Affidavit). According to El-Tabech, IM status also precludes him from job and educational opportunities, and he is denied attendance at religious services. Id. El-Tabech alleges that he has attended Unit Classification Committee reviews of his IM status, but he has never been permitted to call witnesses or present evidence. Id. El-Tabech contends that although he is not eligible for parole, IM status interferes with his parole eligibility because IM status inmates cannot engage in job and educational opportunities. Filing No. 146.
El-Tabech brought suit in this court against the following defendants: Harold Clarke (“Clarke”), NDCS Director; Robert P. Houston (“Houston”), NDCS Director; Frank Hopkins (“Hopkins”), NDCS Assistant Director; Mike Kenney, NSP Warden; Francis Britten (“Britten”), TSCI Warden; Randy Cole (“Cole”), NDCS Medical Director; Douglas Sell (“Sell”), head of the Mental Health program at TSCI; Mary Carmichael (“Carmichael”), TSCI Contract Monitor; Steve Vodicka (“Vodicka”) TSCI and NSP Safety/Sanitations Coordinator. Filing No. 110. El-Tabech sued these defendants in their official capacity as it relates to his request for injunctive relief, and in their individual capacities as it relates to El-Tabech’s request for monetary damages.
In his amended complaint, El-Tabech alleges that defendants Clarke, Houston, Hopkins, Britten, and Carmichael violated the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) (42 U.S.C. § 2000cc et seq.) (Claim I); defendants Clarke, Houston, Hopkins, Britten, and Carmichael violated El-Tabech’s right to free exercise of religion under the First and Fourteenth Amendments of the United States Constitution (42 U.S.C. § 1983) (Claim II); all defendants violated El-Tabech’s right to be free from cruel
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and unusual punishment in accordance with the Eighth and Fourteenth Amendments (42 U.S.C. § 1983) (Claim III);4 and defendants Clarke, Houston, Kenney, Hopkins, Britten, and Sell violated El-Tabech’s procedural due process rights under the Fourteenth Amendment (42 U.S.C. § 1983) (Claim IV). Filing No. 110.
El-Tabech requests that this court declare the actions of the defendants unlawful and violative of El-Tabech’s Constitutional rights, issue a preliminary and permanent injunction requiring defendants to provide El-Tabech with a nutritionally sufficient kosher diet, find that failure to provide El-Tabech with a kosher diet and the opportunity to shower daily violates his rights under RLUIPA, enjoin defendants from subjecting El-Tabech to the conditions of confinement as alleged in his amended complaint, award El-Tabech compensatory and general damages, grant El-Tabech attorney fees and costs in accordance with 42 U.S.C. § 1988, and grant any other relief the court deems appropriate. Filing No. 110.
Now before the court are El-Tabech’s motions for summary judgment on his fourth, first, and second claims, respectively, his allegations of violations of procedural due process, RLUIPA, and the First and Fourteenth Amendments’ right to the free exercise of religion. Filing Nos. 145, 150. The defendants oppose El-Tabech’s motions and have filed briefs to support their position. The court has reviewed the evidence and briefs in this case and finds that summary judgment is not appropriate as set forth below.
4The third claim of cruel and unusual punishment is dismissed in accordance with the pretrial order. Filing No. 165, ¶ (C)(6).
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Legal Standards On a motion for summary judgment, the question before the court is whether the
record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Therefore, if defendant does not meet its initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee’s Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 173 (8th Cir. 1987).
Once a party meets its initial burden of showing there is no genuine issue of material fact, the opposing party may not rest upon the allegations of his or her pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed. R. Civ. P. 56(e); Chism v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir. 1998). The party opposing the motion must do more than simply show that there is some metaphysical doubt as to the material facts; he or she must show “there is sufficient evidence to support a jury verdict” in his or her favor. Id. Rule 56(c) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an
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element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). While courts evaluate facts in the light most favorable to the nonmoving party, “in order to defeat a motion for summary judgment, the non-moving party cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit.” Carter v. St. Louis Univ., 167 F.3d 398, 401 (8th Cir. 1999). In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations. Kenney v. Swift Transp. Co., 347 F.3d 1041, 1044 (8th Cir. 2003). Claim I - Due Process5
The Due Process Clause provides that no person shall “be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. There are two steps essential to a procedural due process inquiry. Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006). The first question is whether a property or liberty interest deprivation has occurred. Senty-Haugen, 462 F.3d at 886. Protected liberty interests arise from both the Due Process Clause itself and state laws. Id. at 886. If a protected interest exists, the second step of the procedural due process analysis requires a balancing of the private interest at stake, the risk of erroneous deprivation of such interest, and the governmental interests involved. Morgan v. Rabun, 128 F.3d 694, 699 (8th Cir. 1997); Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
5In his amended complaint, El-Tabech captioned his fourth claim as a procedural due process claim. The court finds that the parties’ arguments implicate both procedural and substantive due process concerns. Thus, the court will address the due process argument in its entirety.
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The Due Process Clause by itself does not accord a prisoner a liberty interest in remaining in the general population. Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005). Rather, prison officials must receive “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). Accordingly, the Eighth Circuit has held that an inmate “does not have a constitutional right to a particular prison job or classification.” Sanders v. Norris, 153 Fed. Appx. 403, 404 (8th Cir. 2005); Hartsfield v. Dep’t of Corr., 107 Fed. Appx. 695, 696 (8th Cir. 2004) (unpublished opinion per curiam) (inmate has “no liberty interest in a particular classification.”). Thus, the question remains whether a liberty interest exists created by state law.
To demonstrate a liberty interest created by state law, “[a]n inmate who makes a due process challenge to his segregated confinement must make a threshold showing that the deprivation of which he complains imposed an atypical and significant hardship.” Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) (internal quotations omitted); Sandin v. Conner, 515 U.S. 472, 484 (1995). The Eighth Circuit Court of Appeals has consistently held that “administrative and disciplinary segregation are not atypical and significant hardships[.]” Portley-El, 288 F.3d at 1065; Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“We have consistently held that a demotion to segregation, even without cause, is not itself an atypical and significant hardship.”). The absence of contact visitation, exercise privileges, and chapel rights do not necessarily constitute an atypical and significant hardship. Phillips, 320 F.3d at 847.
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El-Tabech maintains that he has been on IM status for nearly six years, he has no history of violence while on IM status, and he has no hope of ever being promoted beyond IM status. According to El-Tabech, he has received his six-month hearings, but they amount to nothing more than “an opportunity to make the same statement to the same group of prison employees.” Filing No. 146. El-Tabech argues that the length and indefiniteness of IM status constitute an atypical and significant deprivation of liberty that requires due process of law. In support of his argument, El-Tabech contends that in Wilkinson v. Austin, 545 U.S. 209 (2005), the Supreme Court determined that prisoners had a liberty interest in avoiding assignment to OSP, a maximum security facility in Ohio with highly restrictive conditions designed to segregate the most dangerous prisoners from the general prison population. Incarceration in OSP was “synonymous with extreme isolation” and inmates were deprived “of almost any environmental or sensory stimuli and of almost all human contact.” Further, inmates were placed in OSP for an indefinite period of time, reviewed annually after an initial 30-day review, and those inmates eligible for parole lost their eligibility while incarcerated at OSP. The court concluded that these conditions alone may be insufficient to create a liberty interest, but in the aggregate they imposed “an atypical and significant hardship within the correctional context.” Wilkinson, 545 U.S. at 224.
The defendants argue that El-Tabech does not have a protected liberty interest in a specific classification, or rather, freedom from a restrictive classification status. When considering whether the conditions, duration or restrictions of confinement are atypical as compared with other inmates, admittedly, few cases involve comparisons of IM status lasting almost six years. However, under Sandin, a liberty interest determination is to be
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made based on whether it will affect the overall duration of the inmate’s sentence. Sandin, 515 U.S. at 484; Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998). Here, there is no evidence that IM status will impact El-Tabech’s consecutive life sentences because ElTabech is not eligible for parole. El-Tabech maintains that while he is not currently eligible for parole, he could become eligible for parole if the Nebraska Governor were to commute his sentence. However, Nebraska law does not create a liberty interest in the possibility of commutation, other than the right to file an application for commutation. Otey v. Stenberg, 34 F.3d 635, 637 (8th Cir. 1994) (citing Otey v. State, 485 N.W.2d 153, 166 (Neb. 1992)); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 467 (1981) (“the mere existence of a power to commute a lawfully imposed sentence, and the granting of commutations to many petitioners, create no right or ‘entitlement.’”); see also Adams v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005) (citing Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 11 (1979)) (an inmate does not have a constitutionally-protected liberty interest in the possibility of parole). Thus, the court finds that the loss of an opportunity to engage in rehabilitative activities requisite for potential commutation is a speculative, collateral consequence of administrative segregation insufficient to create a liberty interest. See also Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996) (placement in administrative segregation does not constitute a deprivation of a constitutionally cognizable liberty interest).
Additionally, in a similar case, inmate Troy Anthony Hess (“Hess”) was placed on IM status at Tecumseh State Correctional Institution after an incident where he assaulted prison officials and an attempted escape incident involving hostages and weapons. Hess v. Clarke, et al., 4:03cv3110 (D. Neb. 2005) (unpublished). Hess spent eleven and one-
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half years on IM status and brought suit alleging violations of among other claims, due process. Id. The court determined that Hess’ segregated confinement did not constitute an atypical and significant hardship and, therefore, Hess’ due process claim failed. Id. The court further stated that even if Hess had proved an atypical and significant hardship, Hess would still not succeed on his procedural due process claim because Hess received all the due process to which he was entitled. Specifically, the court noted that “an informal, non-adversary evidentiary proceeding was sufficient to support a finding that a prisoner posed a security threat and to support a decision to confine a prisoner to administrative segregation.” Id.
This court agrees with this analysis and finds that under the facts of this case, ElTabech does not have a protected liberty interest sufficient to warrant a due process claim. Even if this court found that El-Tabech had made the requisite showing that his extended time in IM status constituted an atypical and significant hardship sufficient to warrant a protected liberty interest, El-Tabech still would not succeed with his procedural due process claim because defendants afforded El-Tabech adequate procedural protections to justify its placement decisions. Like the inmate Hess, El-Tabech has received hearings every six months to review his status. El-Tabech argues that the Mathews factors6 support
6The Mathews court considered three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
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a finding that El-Tabech received inadequate procedure under the Constitution. However, the Supreme Court in Wilkinson evaluated the traditional analysis governing procedural due process and found that “a relaxed set of procedures satisfied an inmate’s challenge to a placement decision or conditions of confinement.” Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1344 (10th Cir. 2007); Wilkinson, 545 U.S. at 228-29. Thus, in the inmate segregation context, due process is satisfied if the state permits “(1) a sufficient initial level of process, i.e., a reasoned examination of the assignment; (2) the opportunity for the inmate to receive notice and respond to the decision; and (3) safety and security concerns to be weighed as part of the placement decision.” Estate of DiMarco, 473 F.3d at 1344 (citing Wilkinson, 545 U.S. at 226-27).
There is no evidence to suggest that El-Tabech did not receive notice of his IM status hearings or an opportunity to participate as El-Tabech states that he has attended his status review hearings. El-Tabech alleges that at his hearings he has only been allowed to make simple, brief statements which “seem to have no bearing whatsoever on the review committee.” Filing No. 146. However, like the court in Hess noted, the guarantees of due process are flexible and can vary given the situation. Hess v. Clarke, et. al., 4:03cv3110 (D. Neb. 2005) (unpublished); Hewitt v. Helms, 459 U.S. 460, 472 (1983). Prison officials are “obligated to engage only in an informal, non-adversary review of the information supporting . . . administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” Hewitt, 459 U.S. at 472. Provided these minimal due process requirements are met, an inmate’s transfer from a restricted environment to a more confined environment is “not one of great consequence” when weighed against the state’s interest
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in preserving order and maintaining institutional security. Id. at 473. Therefore, the court finds that El-Tabech has received all the procedural due process rights to which he is entitled, and summary judgment must be denied.
The purpose behind Rule 56 is to promptly dispose of actions in which there are no genuine issues of material fact. Fed. R. Civ. Pro. 56 advisory committee’s notes. “In order to achieve this goal, the rule thus requires a court, under the proper conditions, to grant the relief to which a party is entitled even if the party has not demanded such relief.” Exxon Corp. v. St. Paul Fire & Marine Ins. Co., 129 F.3d 781, 786 (5th Cir. 1997). “District courts are widely acknowledged to possess the power to enter summary judgment sua sponte.” First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 114 (2d Cir. 1999). A court may grant summary judgment in favor of the nonmoving party provided the party has had a “full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried.” First Fin. Ins. Co., 193 F.3d at 115. Having found that El-Tabech had the opportunity to fully present the evidence of his due process claim, the court finds that summary judgment is appropriate in favor of defendants and this claim will not proceed to trial. Claims I and II - RLUIPA and Free Exercise of Religion (First and Fourteenth Amendments)
El-Tabech next claims that there is no genuine issue of material fact that defendants Clarke, Houston, Hopkins, Britten, and Carmichael violated El-Tabech’s rights under Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., and the First and Fourteenth Amendments. Filing No. 150. Although incarcerated, inmates retain First Amendment protections, including the right that no law shall prohibit
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the free exercise of religion. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Courts evaluating a First Amendment claim must first consider whether the challenged governmental action infringes upon a sincerely held religious belief. Murphy, 372 F.3d at 983. Then, the court must apply the Turner factors, a reasonableness test “less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). The Turner factors are: “(1) whether there is a valid, rational connection between the regulation and the asserted governmental interest; (2) whether alternative means for exercising the right remain open to the prisoner; (3) the impact of the regulation on prison staff, other inmates, and the allocation of prison resources; and (4) the availability of ready alternatives to the regulation.” Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir. 1996); Turner, 482 U.S. at 89-91.
Courts employ the rational basis test to prisoners’ First Amendment claims brought by prisoners, but Congress has established a higher level of scrutiny for free exercise claims brought under RLUIPA: Section 3 of RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person” furthers a compelling government interest and is the least restrictive means to compel that interest. 42 U.S.C. § 2000cc-1(a).
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RLUIPA protects inmates who, because they are incarcerated, are unable to freely exercise their religion and therefore rely on the government’s permission and accommodation to pursue their religious rights. Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). A government regulation is a substantial burden when it significantly inhibits or constrains conduct or expression that manifests some central tenet of a person’s individual religious beliefs, meaningfully curtails a person’s ability to express adherence to a faith, or denies a person reasonable opportunities to engage in religious activities cardinal to a person’s religion. Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (brackets and citation omitted). While employing the strict scrutiny standard, RLUIPA does not “elevate accommodation of religious observances over an institution’s need to maintain order and safety.” Cutter, 544 U.S. at 722. Indeed, those who enacted RLUIPA were ”mindful of the urgency of discipline, order, safety, and security in penal institutions.” Id. at 723. Courts must “[a]ccord great deference to the judgment and expertise of prison officials, ‘particularly with respect to decisions that implicate institutional security.’” Murphy, 372 F.3d at 983 (quoting Goff v. Graves, 362 F.3d 543, 549 (8th Cir. 2004)).
In support of his claims, El-Tabech argues that his religion requires that he adhere to a Halal diet: eating only permitted kosher food including certain animals but only if slaughtered properly and blessed; separating dairy from meat; separating kosher from nonkosher items; and maintaining the cleanliness of utensils, plates, glassware, and trays. El-Tabech further maintains that his religion requires a degree of cleanliness, like daily showers, that is currently not being afforded to him while on IM status. El-Tabech also alleges that defendants have burdened El-Tabech’s beliefs regarding prayers and prayer times. El-Tabech claims his religious beliefs are sincerely held and that defendants cannot
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advance a compelling state interest to justify not accommodating El-Tabech’s religious requests.
The defendants however, allege that El-Tabech’s religious beliefs are not substantially burdened. According to defendants, the prison’s inability to accommodate El-Tabech’s requests stems from the prison’s interest in maintaining safety and security. Defendants claim El-Tabech’s requests are not “reasonable accommodations” and cite security and cost concerns as reasons for not fulfilling El-Tabech’s requests. Further, defendants question the sincerity of El-Tabech’s religious beliefs due to his affiliations with both the Mormon church and the Orthodox Muslim religion.
The court has reviewed the record and evidence as it relates to El-Tabech’s alleged violations of RLUIPA and the First and Fourteenth Amendments, and the court finds that summary judgment is not warranted. Specifically, the court finds that genuine issues of material fact exist concerning the allegations of cost and security in affording El-Tabech a kosher diet. The parties disagree over the cost and feasability of options to accommodate El-Tabech’s kosher requirements, namely, pre-packaged kosher meals, El-Tabech’s ability to purchase kosher items through the canteen, and the establishment of a separate, kosher kitchen at TSCI. At further issue is whether additional showers or adherence to a prayer schedule risk additional cost, time, and staff, and ultimately, security concerns to the prison facility that would constitute a compelling state interest. As such, summary judgment is denied and El-Tabech’s first and second claims regarding religion remain subject to further inquiry at trial.
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THEREFORE, IT IS ORDERED that 1. Plaintiff El-Tabech’s motions for partial summary judgment, Filing Nos. 145
and 150, are denied; 2. Summary judgment is granted in favor of the defendants on Claim IV, El-
Tabech’s Due Process Claim, as set forth herein; 3. Trial will proceed on the remaining claims of the amended complaint, Claims
I and II, pursuant to the terms of the pretrial order; and 4. The court takes notice of the joint stipulation of facts, Filing No. 149. DATED this 18th day of May, 2007.
BY THE COURT: s/ Joseph F. Bataillon Chief United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
v. HAROLD W. CLARKE, et al.,
Defendant.

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4:04cv3231

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MEMORANDUM AND ORDER

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This matter is before the court following a non-jury trial. Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that defendants violated his rights under RLUIPA, and the Eighth, First, and Fourteenth Amendments. Based on the evidence and testimony presented to the court in this case and pursuant to Federal Rule of Civil Procedure 52, the court makes the following findings of fact and conclusions of law.
Findings of Fact El-Tabech was born and raised in Beirut, Lebanon, where he was raised in the Orthodox Muslim faith. El-Tabech was baptized into the Church of Jesus Christ of Latter Day Saints, also known as the Mormon religion, on August 14, 1983. According to ElTabech, he was baptized due to pressure from Mormon friends who helped him establish a residence, a job, and educational opportunities. In early 2007, El-Tabech requested removal from the member list of the Mormon church. Since July 18, 2002, El-Tabech has been continuously incarcerated at the Tecumseh State Correctional Institution (“TSCI”), where he is serving consecutive terms of life imprisonment plus twenty years. At TSCI, prison officials placed El-Tabech in the Special Management Unit (“SMU”), a segregation unit, and placed him on Intensive

Management (“IM”) status. El-Tabech was placed on IM status because while at Nebraska State Penitentiary (“NSP”), a maximum security prison, El-Tabech engaged in two escape attempts, one of which involved hostages and weapons. See Exhibit No. 25. El-Tabech is no longer on IM status; he is now on administrative confinement (“AC”).
IM involves “removal of an inmate from general population for an indefinite period of time to maintain order and security within the institution.” Exhibit No. 50. IM status, a type of administrative segregation, is defined as the “confinement of an inmate when the inmate’s demonstrated behavior presents a high risk of physical danger to anyone with whom the inmate comes into contact.” Id. AC is the “confinement of an inmate to maintain the safety, security and good order of the institution.” Id.
As part of El-Tabech’s religious beliefs, he believes that he must maintain a kosher diet. Further, El-Tabech believes that he must maintain the utmost level of physical cleanliness and purity in his daily life, including daily showers. El-Tabech must also adhere to a prayer schedule. The Nebraska Department of Correctional Services (“NDCS”) does not provide a kosher food option to any of the inmates at any of its facilities. NDCS requires that all facilities provide adequate support for inmates whose religious beliefs require adherence to special dietary beliefs. Any inmate may abstain from eating religiously prohibited foods without jeopardizing the nutritional adequacy of the diet. Prisoners are able to purchase items through the canteen, but it is not possible to know what foods are kosher before ordering.
Prisoners on IM status receive three showers per week, although El-Tabech has earned a fourth shower per week through TSCI’s incentive program. On days in which he is not permitted to shower, Mohamed believes he exists in an impure state, a state in which
2

he remains until he is able to cleanse his “whole body” in accordance with his sincerely-held beliefs based on the Holy Qu’ran.
Two of El-Tabech’s claims proceeded to trial, pursuant to the court’s previous memorandum and order. Filing No. 172. In his amended complaint, El-Tabech alleges that defendants Clarke, Houston, Hopkins, Britten, and Carmichael violated his rights under Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) (42 U.S.C. § 2000cc et seq.) (Claim I), and that the same defendants violated El-Tabech’s right to free exercise of religion under the First and Fourteenth Amendments of the United States Constitution (42 U.S.C. § 1983) (Claim II). Filing No. 110. Conclusions of Law
The First Amendment provides that no law shall prohibit the free exercise of religion. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). A prison regulation is valid, even if it restricts an inmate’s constitutional rights if it is “reasonably related to legitimate penological interests.” Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 982 (8th Cir. 2004) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Courts evaluating a First Amendment claim must first consider whether the challenged governmental action infringes upon a sincerely-held religious belief. Murphy, 372 F.3d at 983. Then, the court must apply the Turner factors, a reasonableness test “less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). The Turner factors are: “(1) whether there is a valid, rational connection between the regulation and the asserted governmental interest; (2) whether alternative means for exercising the right remain open to the prisoner; (3) the impact of the regulation on prison staff, other inmates, and the allocation of prison resources; and (4) the
3

availability of ready alternatives to the regulation.” Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir. 1996); Turner, 482 U.S. at 89-91.
While the rational-basis test applies to constitutional claim cases, strict scrutiny applies to claims brought under RLUIPA. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., provides that no government shall impose a substantial burden on the religious exercises of an inmate, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1 (2007). A government regulation is a substantial burden when it significantly inhibits or constrains conduct or expression that manifests some central tenet of a person’s individual religious beliefs, meaningfully curtails a person’s ability to express adherence to a faith, or denies a person reasonable opportunities to engage in religious activities cardinal to a person’s religion. Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (brackets and citation omitted). Courts must “[a]ccord great deference to the judgment and expertise of prison officials, ‘particularly with respect to decisions that implicate institutional security.’” Murphy, 372 F.3d at 983 (quoting Goff v. Graves, 362 F.3d 543, 549 (8th Cir. 2004)).
The court first notes that “the Muslim religion is a legitimate form of religion protected by the First Amendment, and the court finds that [El-Tabech is] sincere in [his] practice of and belief in that religion.” Rogers v. Scurr, 676 F.2d 1211, 1212 (8th Cir. 1982). Turning first to El-Tabech’s kosher diet request, at trial, defendants voiced reasons for denying a religious diet. Those reasons include the speculative increased cost of food and preparation materials, the potential for creating the perception of favoritism by other
4

inmates, and the risk of inviting increased religious diet requests. Applying the deferential Turner standard, the court finds that the defendant’s denial of a kosher meal is not rationally related to its economic and administrative concerns. Defendants were unable to offer any evidence at trial to quantify the economic impact of accommodating prisoners a kosher meal or kosher items through the canteen. Moreover, the evidence demonstrates that defendants are able to furnish prisoners with kosher meals during Ramadan without incident or impact, and vegetarian, low sodium, cardiac, and bland diet options are provided to prisoners. According to the evidence adduced at trial, ready alternatives exist to satisfy El-Tabech’s dietary requirements at a de minimis cost to the prison.
While deference is due to prison officials’ expertise under both RLUIPA and the First Amendment, the evidence shows that defendants did not select the least restrictive means to achieve their goal. Indeed, the court finds it incredulous that at a minimum, prison officials are unable to contract with their canteen supplying vendor for a list of generally available kosher items so that list could be made available to prisoners purchasing kosher food. Therefore, the court finds that defendants violated El-Tabech’s right to freedom of religion when they denied El-Tabech reasonable access to a kosher diet. The court does not find that a separate kosher kitchen is a necessary option to accommodate kosher diet requirements. However, the court orders the parties to negotiate the feasability of providing El-Tabech and other prisoners similarly situated with the following options:
1. Modifying the canteen sheet to indicate the kosher items; 2. Supplying inmates with prepackaged kosher meals;
5

3. Supplying inmates with kosher food already available in the kitchen (i.e., boiled eggs, unopened cans and jars, uncut and unpeeled fruits and vegetables, cereal, crackers, and liquid nutritional supplements).
The court further orders the parties to report back in sixty (60) days on which option or combination of options will be instituted by NDCS.
As to El-Tabech’s prayer request, the court finds that posting a prayer schedule so that the guards are aware of it is not an unreasonable accommodation. The court orders that such a schedule should be posted with the understanding that the guards can adjust activities or reduce disturbances as appropriate. However, the court recognizes that prison security is a compelling state interest, and that altering prison schedules to accommodate El-Tabech’s prayer schedule is not expected.
Furthermore, El-Tabech’s request for daily showers is denied. Incarceration, by its nature, limits many privileges and rights, the further retraction of which is justified by attempts to escape from prison. El-Tabech is currently housed in AC where he receives three showers per week. General population prisoners, however, are permitted showers seven days a week. Prison officials testified at trial about the logistics and staff needed to run TSCI, and how accommodating a different shower schedule for an AC prisoner would disrupt the system, cause security concerns due to staffing requirements, and may even serve as a catalyst that ignites disputes or breeds resentment between inmates. As such, the court finds that a valid, rational connection exists between the fewer showers available to inmates housed in AC, and the compelling government interest in maintaining a safe, secure prison facility. The evidence shows that El-Tabech has a sink in his cell where he may wash himself, and this is a reasonable alternative for El-Tabech on the days he is not
6

permitted to shower. Further, El-Tabech may earn an additional shower each week as an incentive.
THEREFORE, IT IS ORDERED that 1. Judgment will be entered for the plaintiff against the defendants on plaintiff’s
amended complaint (Filing No. 110) as set forth herein; 2. The parties are ordered to submit their negotiation results to this court within
sixty (60) days as set forth herein; and 3. Pursuant to Federal Rule of Civil Procedure 52, a separate judgment will be
filed on this date in accordance with this Memorandum and Order. DATED this 17th day of July, 2007.
BY THE COURT: s/ Joseph F. Bataillon Chief United States District Judge
7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

)

)

ORDER

)

)

)

This matter came before the Court on the Parties’ Joint Stipulation to Extend Date for

Filing Motion for Costs and Attorney’s Fees (Filing #181). This Court, being fully advised in the

premises, finds that this application should be granted.

IT IS HEREBY ORDERED as follows:

(1) Negotiations between the Parties to determine the kosher dietary option(s)

that will be instituted by Nebraska Department of Correctional Services

shall conclude within 60 days of the entry of judgment. The Parties will

report the result of these negotiations to the Court on or before September

14, 2007.

(2) The Plaintiff shall submit an application for attorney fees and costs, as

prevailing party pursuant to 42 U.S.C. § 1988, within 14 days of the

conclusion of negotiations, or by September 28, 2007, whichever date is

earlier.

Dated this 23rd day of July, 2007.

BY THE COURT:

____________________________ Hon. Joseph F. Bataillon District Court Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

)

)

ORDER

)

)

)

This matter came before the Court on the Parties’ Joint Stipulation on the Feasibility of Defendant’s Proposed Kosher Diet Option (Filing # 187) and Attachment # (1) Defendant’s Kosher Equipment and Meal Preparation Process (Filing # 187-2). This Court, being fully advised in the premises, finds that this application should be granted.
IT IS HEREBY ORDERED as follows: 1. Defendants will implement the “Kosher Equipment and Meal Preparation Process” (the
“Kosher Process”) in compliance with this Court’s July 17, 2007 Memorandum and Order to “provid[e] El-Tabech[,] and other prisoners similarly situated” who request a religious diet, with a nutritionally-sufficient kosher diet, in accordance with Nebraska Department of Corrections Services policies and procedures and subject to the following: a. Development and implementation of operational memoranda, protocols, post
orders or other similar documents to ensure the adequacy of the Kosher Process to provide kosher meals that are nutritionally sufficient; and

b. The allowance of a person with expertise in the area of kosher diet preparation and service to provide an independent verification of the adequacy of the Kosher Process, once implemented by the Nebraska Department of Corrections Services Food Services Division (“DCSFS”), to meet Defendants’ stated commitment to never serve Mr. El-Tabech non-kosher food (“Kosher Process” at 1 ¶ 2). The input of this person will be considered by DCSFS to ensure the Kosher Process is adequate.
Dated this 5th day of October, 2007. BY THE COURT: s/ Joseph F. Bataillon District Court Judge
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

)

MOTION FOR IN CONTEMPT

)

)

)

)

)

)

Plaintiff Mohamed A. El-Tabech, by and through his attorneys, respectfully moves this Court

for an order holding Defendants in contempt of this Court’s orders to (1) provide Plaintiff with a

“nutritionally-sufficient kosher diet” (Order, Filing 190, at ¶ 1, Oct. 5, 2007), and (2) to post a prayer

schedule and “adjust activities or reduce disturbances as appropriate” (Mem. and Order, Filing 179,

at 6, July 17, 2007).

The evidence submitted by El-Tabech in support of this Motion is contained in an evidence

index which is being filed contemporaneously with this Motion. The arguments in support of this

Motion are set forth in Plaintiff’s Brief in Support of Motion for Contempt which is being filed

contemporaneously with this Motion.

WHEREFORE, El-Tabech respectfully requests that this Court:

1. Enter an order requiring Defendants to show cause why they should not be held in contempt;

2. Adjudge Defendants in contempt;

3. Enter an order requiring Defendants to supply El-Tabech with a “nutritionally-sufficient

kosher diet” that consists of either prepackaged kosher meals or prepackaged kosher foods

available in the TSCI kitchen;

4. Enter an order requiring Defendants to compensate El-Tabech in the amount of $532.52 for

kosher food purchases from the canteen since the implementation of the current meal plan;

5. Enter an order requiring Defendants to immediately post and maintain outside Plaintiff’s cell

door a current Islamic prayer schedule that shows the time of each of the five required daily

prayers;

6. Enter an order that Defendants not disturb Plaintiff during these posted prayer times, except

for an emergency or previously scheduled activity;

7. Award El-Tabech his reasonable attorney’s fees and costs in monitoring Defendants’

compliance and bringing this Motion for enforcement of the Court’s orders; and

8. For such further, additional, or different relief as deemed appropriate by the Court.

Dated this 26th day of August, 2008.

MOHAMED A. EL-TABECH, Plaintiff.

BY: OGBORN, SUMMERLIN & OGBORN, P.C. GENE SUMMERLIN - 19611 TED J. LANE - 23426 610 J Street, Suite 200 Lincoln, NE 68508 (402) 434-8040 gene@osolaw.com ted@osolaw.com

BY:

/s/ Ted J. Lane

Ted J. Lane

2

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 26th day of August, 2008, the foregoing Plaintiff’s Motion for Contempt was electronically filed using the CM/ECF system which sent notification of the filing to the following: Matthew A. Works Assistant Attorney General 2115 State Capitol Bldg. Lincoln, NE 68509 matt.works@ago.ne.gov Attorney for Defendants
/s/ Ted J. Lane Ted J. Lane
3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

) BRIEF IN SUPPORT OF PLAINTIFF’S

)

MOTION FOR CONTEMPT

)

)

)

)

INTRODUCTION

Throughout this litigation, the Defendants have waged a war of “unrelenting resistance”

against El-Tabech’s religious freedoms. (Mem. and Order, Filing No. 203 at 5, May 5, 2008.) Even

after the Court’s entry of judgment in El-Tabech’s favor, the Defendants have continued a steadily

escalating campaign in opposition to the requirements of this Court’s orders. The Defendants’

recalcitrance peaked when TSCI staff served El-Tabech a “kosher” meal in which feces was hidden.

Shortly after the Court issued its July 2007 order, some TSCI staff members began verbally

taunting El-Tabech about his prayer schedule and diet. The insults grew to ignoring the posted

prayer schedule and intentionally interrupting El-Tabech’s prayers for no apparent reason.1 The

prayer schedule has been ripped from the wall and Defendants have often times refused to re-post

it. Despite the Defendants’ pledge “to never serve Mr. El-Tabech non-kosher food,” TSCI staff have

often refused to follow even basic provisions of the kosher process and protocols previously agreed

to by the parties and the Court. On numerous occasions, El-Tabech has found non-kosher foreign

materials like hair, plastic, non-kosher foods, and non-kosher kitchen utensils in his food and

1 Since September 2007, TSCI staff members have disrupted El-Tabech’s daily prayers 139 times, and 27 times during May 2008 alone.

Defendants have failed to follow their own basic food safety transportation requirements with respect to El-Tabech’s kosher meals.2 Between October 17, 2007 and April 29, 2008, Plaintiff’s attorneys contacted the Defendants’ counsel on at least 20 separate occasions in an attempt to convince the Defendants to adhere to the kosher protocols and prayer schedule as required by the Court. See, T. Lane Aff., Pl.’s Ex. 2 ¶¶ 4 - 28. These efforts were unsuccessful. Since the Defendants will not willingly comply with the orders of this Court, Plaintiff has been left with no other alternative but to file this Motion for Contempt.
STATEMENT OF FACTS On July 17, 2007, this Court found that Defendants had violated El-Tabech’s civil rights under the Religious Land Use and Incarcerated Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., and the First Amendment of the United States Constitution. (Mem. and Order, Filing No. 179 at 5-6, July 17, 2007.) As a result, Defendants were ordered to (1) provide El-Tabech with a “nutritionally-sufficient kosher diet, in accordance with Nebraska Department of Corrections Services policies and procedures” (Order, Filing No. 190 at ¶ 1, Oct. 5, 2007), and (2) post ElTabech’s prayer schedule so “guards can adjust activities or reduce disturbances as appropriate” (Mem. and Order, Filing No. 179 at 6). The Defendants have refused to abide by these two clear and relatively simple requirements. The Kosher Protocols. This Court ordered Defendants to provide El-Tabech with a “nutritionally-sufficient kosher diet.” (Order, Filing No. 190, at ¶ 1.) At the Court’s direction, El-
2 When El-Tabech has complained about staff members’ repeated violation of this Court’s Orders, TSCI staff have responded with comments like, “[w]rite the Goddamn judge, write a grievance to the damn judge who don’t know what is going on”; “[f]uck [El-Tabech], he should be getting the same thing like everybody else”; and “I don’t care about Jesus – why would I care about a Muslim?” (M.El-Tabech Aff., Pl.’s Ex. 1 at ¶ 11.)
2

Tabech and the Defendants drafted a joint stipulation which set forth the manner in which the Defendants’ would provide El-Tabech with kosher meals. (Joint Stip. on Feasibility of Defs.’ Proposed Kosher Diet Option, Filing No. 187, Sept. 21, 2007; Kosher Equip. and Meal Preparation Process, Filing No. 187-2 at 1-3, Sept. 21, 2007 (the “Kosher Process”).) As part of this stipulation, the Defendants promised that they “would never serve Mr. El-Tabech non-kosher food.” (Kosher Process, Filing No. 187-2 at 1.) Two operational protocols were developed for use by TSCI staff to prepare bulk and individual kosher meals. (Tecumseh State Corr. Inst., Food Service Protocol 1.01: Kosher Meal Preparation Process (Bulk Preparation and Clean Up), Pl.’s Ex. 6 (2008) (“Kosher Protocol 1.01”); Tecumseh State Corr. Inst., Food Service Protocol 1.02: Kosher Meal Preparation Process (Individual Meal Preparation), Pl.’s Ex. 7 (2008) (“Kosher Protocol 1.02”).) At El-Tabech’s request, Rabbi Jonathan Gross, an orthodox rabbi and head of the Beth-Israel Synagogue in Omaha, Nebraska, reviewed the Kosher Process, the Kosher Protocols, and personally observed the preparation of a meal at Tecumseh State Correctional Institute (“TSCI”). (Letter from Rabbi Jonathan Gross, Beth Israel Synagogue, to Ted J. Lane, Attorney for Plaintiff, Pl.’s Ex. 8 (March 21, 2008).) Rabbi Gross stated that, “[a]s an orthodox rabbi, I affirm that the food prepared as prescribed by the protocol and based on my personal observations is kosher according to the highest standards.” (Id. at 1 ¶ 1.)3
Defendants’ Compliance with the Kosher Protocols. Although the Kosher Process and Protocols are sufficient to ensure that the food served El-Tabech is kosher, they are effective only if TSCI staff comply with their requirements. The most egregious violation of the process and
3 El-Tabech accepts the authority and opinion of Rabbi Gross, and does not allege that the Kosher Process or Kosher Protocols themselves are deficient. Rather, El-Tabech’s concern stems only from the Defendants’ refusal to abide by the previously agreed-to protocols.
3

protocol occurred on April 15, 2008, when El-Tabech was served a meal which contained human excrement. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 12.) The feces was wrapped in plastic and partially covered by rice. (Id. at ¶ 15.) Corporal Hernandez observed El-Tabech open the meal and both he and Sergeant Ebke agreed that the object in El-Tabech’s food appeared to be feces. (Id. at ¶¶ 16–18.) El-Tabech requested that the guards photograph the clamshell container and its contents, and that the feces be preserved as evidence. (Id. at ¶¶ 19, 20.) Later the same day, El-Tabech’s counsel also contacted the Attorney General’s office and requested that Defendants preserve this evidence. (T. Lane Aff., Pl.’s Ex. 2 at ¶¶ 18, 35.) The Attorney General office agreed to preserve the evidence and test the feces to determine who was responsible for placing it in El-Tabech’s food. (T. Lane Aff., Pl.’s Ex. 2 at ¶¶ 35-36.) Despite these assurances, the State disposed of the excrement without, apparently, photographing the meal or undertaking any testing to determine its source. (T. Lane Aff., Pl.’s Ex. 2 at ¶ 39.) Defendants did not inform El-Tabech’s attorneys of this failure until two weeks later. (Id.)
El-Tabech has found other foreign objects in the kosher meals prepared by TSCI staff including hair, onion peels, plastic, and a thermometer. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 9(a).) El-Tabech has also received food prepared in violation of kosher law (vegetables cut with a knife) and non-kosher cereal in direct violation of kosher principles and the Protocols. (Id. at ¶ 9(c)-(d).) Each of these incidents was documented by El-Tabech in his Daily Meal Log. (Id. at ¶¶ 8-9, Ex. A.)
The Defendants have also ignored their own food service procedures with regard to the meals served to El-Tabech. TSCI Food Service procedures require transporting potentially-hazardous food in a temperature-controlled manner. (Tecumseh State Corr. Inst., Operational Mem. 108.01.01: Food Service: Safety and Sanitation, Pl.’s Ex. 3 at 12 ¶ XIII.C-D (2006).) Specifically, Operational
4

Memorandum 108.01.01 requires that “[p]otentially hazardous food requiring hot storage shall be transported at 135 degrees F[ahrenheit] or above” and “[p]otentially hazardous food requiring refrigeration during storage shall be transported at 35-40 degrees F[ahrenheit].” (Id.) Although it takes 25 minutes to deliver El-Tabech’s meals from the kitchen to his cell and hot and cold transport carts are used to deliver all the other meals to inmates of Gallery F, the Defendants have never used a hot or cold transport cart to deliver El-Tabech’s meals. (T. Lane Aff., Pl.’s Ex. 2 at ¶¶ 30, 32; M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 27.) The vegan entrées are often cold, and the milk warm, when served to El-Tabech. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 9(a)-(b).) Finally, although the kosher process and protocols call for “fresh” fruit and vegetables at designated meals, El-Tabech has been served rotten fruit and lettuce 63 times since November 2007. (Id. at ¶ 9(e); Religious Kosher Menu, Filing #187-2 at 6-7.)
As a result of all of these violations, El-Tabech can no longer reasonably trust that food prepared by TSCI staff in the TSCI kitchen is kosher and uncontaminated. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶¶ 22, 29.) Therefore, El-Tabech has been forced to supplement his diet with kosher food purchased from the TSCI canteen. (Id. at ¶ 10.) These purchases have totaled $532.52. (Id., Ex. B.)
Prayer Schedule and Disruptions. In its Memorandum and Order, the Court ordered Defendants to “post[] a prayer schedule so that guards are aware of it” and “adjust activities or reduce disturbances as appropriate.” (Mem. and Order, Filing No. 179 at 6.) The Court also stated that, because “prison security is a compelling state interest, . . . altering prison schedules to accommodate El-Tabech’s prayer schedule is not expected.” (Id.)
5

Beginning July 18, 2007, El-Tabech looked for a prayer schedule every time he was brought out of his cell onto the “F” Gallery for showers, yard time, and to fulfill his job duties as porter. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 31.) He also checked the Special Management Unit (“SMU”) entrance lobby each time he was escorted out of SMU to the law library or for a medical appointment. (Id. at ¶ 32.) Defendants did not post a prayer schedule in the SMU at TSCI until September 14, 2007. (Id. at ¶ 33.) The prayer schedule has been torn down by TSCI staff several times. (Id. at ¶ 33.)4 Often, the prayer schedule is not reposted for days or unless El-Tabech specifically requests that it be reposted. (Id.)
The prayer schedule cannot be read from El-Tabech’s cell door or anywhere else on the floor “F” Gallery. (Id. at ¶ 34.) The prayer schedule has never been posted inside the “F” Gallery of SMU or where it would be visible to someone approaching El-Tabech’s cell door. (Id.) Further, the prayer schedule is often out of date and does not provide accurate start times for El-Tabech’s daily prayers.5 (Id. at ¶ 35.) For example, the June 2008 prayer schedule was not posted until June 8, 2008, while the July 2008 prayer schedule was not posted until July 14, 2008. (Id.)
Since September 2007, TSCI staff have unnecessarily disrupted El-Tabech’s prayers 139 times, including 27 interruptions in May of 2008. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶¶ 36-41, Ex. F.) These disruptions have not occurred in order to adhere to the prison schedule, but instead involve unnecessary or routine requests that could be made at any time. (Id. at ¶ 39, Ex. F.)
4 Because the prayer schedule is posted in the SMU lobby, where inmates are not allowed unless shackled and under guard, El-Tabech assumes the TSCI staff have been responsible for the removal of the schedule. (Id. at ¶¶ 31–32.)
5 Islamic prayer times are based on the time of sunrise and sunset at a person’s specific location. For some prayers, the start time may change by as much as 30 minutes over the course of a single month. (See IslamicFinder.org, Prayer Times Schedule 2008 (Tecumseh, NE 68450, USA) (2007), Pl.’s Ex. 11.)
6

ARGUMENT
I. THE DEFENDANTS ARE IN VIOLATION OF THIS COURT’S PRIOR ORDERS IN THIS LITIGATION AND SHOULD BE HELD IN CONTEMPT OF COURT.
“A district court has inherent power to enforce compliance with its lawful orders and
mandates by awarding civil contempt damages, including attorneys fees.” Fisher v. Marubeni
Cotton Corp., 526 F.2d 1338, 1340 (8th Cir. 1975). A finding of contempt must be based on a
party’s failure to comply with a “clear and specific” underlying order. Chaganti & Assoc., P.C. v. Nowotny, 470 F.3d 1215, 1223 (8th Cir. 2006).6
Here, both of the Court’s underlying orders were clear and specific. First, the Court ordered
Defendants to
implement the “Kosher Equipment and Meal Preparation Process” (the “Kosher Process”) in compliance with this Court’s July 17, 2007 Memorandum and Order to “provid[e] El-Tabech[,] and other prisoners similarly situated” who request a religious diet, with a nutritionally-sufficient kosher diet, in accordance with Nebraska Department of Corrections Services policies and procedures . . . .
(Order, Filing No. 190 at ¶ 1.) The language of this order is based on the language of the parties’
agreement and stipulation as filed with this Court. (See Joint Stip. on Feasibility of Defs.’ Proposed
Kosher Diet Option, Filing 187.) The language of this order clearly delineates Defendants’
responsibilities and duties.
The Court also ordered clear and specific conduct with respect to El-Tabech’s daily Islamic
prayers:
As to El-Tabech’s prayer request, the court finds that posting a prayer schedule so that the guards are aware of it is not an unreasonable accommodation. The court
6 A motion for civil contempt is properly brought as part of the underlying litigation that gave rise to the order that is being violated. See Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 452 (1932) (noting that civil contempt proceeding is not to be regarded as an independent action, but as part of the original case).
7

orders that such a schedule should be posted with the understanding that the guards can adjust activities or reduce disturbances as appropriate. However, the court recognizes that prison security is a compelling state interest, and that altering prison schedules to accommodate El-Tabech’s prayer schedule is not expected. (Mem. and Order, Filing No. 179 at 6.) The language of this order clearly requires two specific activities: (1) posting a prayer schedule so that the guards are aware of El-Tabech’s prayer times, and (2) “adjust[ing] activities or reduc[ing] disturbances,” as appropriate, based on El-Tabech’s prayer times, unless the altering of a prison schedule is required. The language of this order clearly delineates Defendants’ responsibilities and duties. “The party seeking a contempt order bears the burden of proving facts warranting such relief by clear and convincing evidence.” Jake’s, Ltd. v. City of Coates, 356 F.3d 896, 899-900 (8th Cir. 2004). The evidence here is clear and convincing, and establishes (1) that Defendants have failed to provide El-Tabech with a “nutritionally-sufficient kosher diet, in accordance with Nebraska Department of Corrections Services policies and procedures” by failing to properly implement the Kosher Process or adhere to the TSCI Food Service procedures, and (2) Defendants have failed to post a prayer schedule so that the guards can adjust activities or reduce disturbances, as shown by the constant and unnecessary disruption of El-Tabech’s daily prayers. The Court has the power to enforce compliance with those orders via a contempt proceeding. A. Defendants Have Failed to Provide a “Nutritionally-Sufficient Kosher Diet” to
El-Tabech in Violation of this Court’s Order. Defendants have failed to provide El-Tabech with a “nutritionally-sufficient kosher diet, in accordance with Nebraska Department of Corrections Services policies and procedures.” (Order, Filing No. 190 at ¶ 1). Defendants began providing El-Tabech with court-ordered “kosher meals” on October 30, 2007. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 7.) Under the Kosher Process and Kosher
8

Protocols, TSCI staff prepare and package the vegan entrées, vegetables (lettuce, carrots, celery), and bread. (Kosher Process, Filing No. 187-2 at 1-3; Kosher Protocol 1.01, Pl.’s Ex. 6 at 1–3; Kosher Protocol 1.02, Pl.’s Ex. 7 at 2 ¶ 2.) However, the Kosher Process and Kosher Protocols are not consistently followed, resulting in contamination of the food items prepared by TSCI staff in the TSCI kitchen. Further, potentially-hazardous food items are routinely served to El-Tabech in violation of TSCI Food Service Safety and Sanitation procedures.
Human Excrement in El-Tabech’s Food. El-Tabech discovered excrement in his lunchtime meal on April 15, 2008. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 12.) As Corporal Hernandez watched, El-Tabech opened the styrofoam clamshell container containing the vegan entrée. (Id. at ¶ 14.) El-Tabech immediately noticed partially-covered feces inside the clamshell. (Id. at ¶ 15.) El-Tabech immediately demanded that TSCI staff photograph and preserve the feces as evidence. (Id. at ¶ 19.) El-Tabech wrote and filed an Emergency Grievance requesting that “the evidence be preserved.” (Id. at ¶ 20, Ex. C.) El-Tabech’s attorneys made the same demand to Assistant Attorney General Matthew Works by telephone later that afternoon. (T. Lane Aff., Pl.’s Ex. 2 at ¶¶ 18, 35.)
Despite being requested to preserve this evidence by both El-Tabech and his counsel, TSCI staff disposed of it. (T. Lane Aff., Pl.’s Ex. 2 at ¶ 39.) The disposal of this evidence directly violated TSCI Evidence Handling Procedures which require retention of physical evidence for “a minimum of 6 months.” (Tecumseh State Corr. Inst., Operational Mem. 204.1.1: Evidence Handling Procedures, Pl.’s Ex. 5 at 10 § VIII.A. (2001).)7
7 “The obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation.” Bd. of Regents v. BASF Corp., 2007 U.S. Dist. LEXIS 82492 at 14-15 (D. Neb. 2007). Spoliation requires “a finding of intentional destruction indicating a desire to suppress the truth.” Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004). “If, however, the destruction of evidence occurs after litigation is imminent or has begun, no bad faith need be shown by the moving party for the court to impose
9

Other Foreign Objects in Vegan Entrée. Since Defendants began offering El-Tabech a “kosher diet,” El-Tabech has found many other contaminants in his meals. These objects include:

Item Hair Onion Peels Thermometer
Plastic

Date
11/16/07 (lunch), 12/5/07 (dinner), 12/6/07 (lunch), 12/21/07 (dinner), 12/25/08 (lunch), 12/26/08 (lunch), 1/10/08 (lunch), 1/29/08 (lunch), 3/23/08 (dinner)
11/23/07 (dinner).
11/11/07 (lunch).
12/10/07 (dinner - Styrofoam clamshell and Ziplock bag melted into vegan entrée), 1/11/08 (lunch - Ziplock bag melted into vegan entrée), 1/13/08 (dinner - Ziplock bag melted into vegan entrée), 1/15/08 (lunch - Ziplock bag melted into vegan entrée), 1/20/08 (lunch - Ziplock bag melted into vegan entrée).

(M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 9(a), Ex. A.) Although some of these contaminants may have been placed in El-Tabech’s food inadvertently, the recurring presence of contaminants calls into question TSCI’s willingness or ability to follow the Kosher Process and Kosher Protocols, and the presence of human feces in El-Tabech’s April 15th meal suggests that TSCI staff are intentionally defying this Court’s orders.8
Other Kosher Violations. In addition to foreign objects, El-Tabech’s meals have been subject to other kosher violations: celery cut with a knife and prepackaged cereal that is not certified kosher. The Kosher Protocols specify that celery must be broken, not cut. (Kosher Protocol 1.01,

sanctions.” Bd. of Regents at 16; see also Stevenson, 354 F.3d at 750 (“Sanctioning the ongoing destruction of records during litigation and discovery by imposing an adverse inference instruction is supported . . . even in the absence of an explicit bad faith finding.”).

8 TSCI staff openly mocked El-Tabech following the discovery of human excrement in ElTabech’s food. Sergeant Falk stated to another inmate, “You don’t want shit on your tray – you want a shit-free tray.” (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 11(g).) Corporal Antholz asked ElTabech, “How did that shit taste, good?” (Id. at ¶ 11(i).)
10

Pl.’s Ex. 6 at 3 ¶ 7 (“Remove the leaves from the celery stalks and wash/clean the stalks under running water. Break the celery stalks into portion sizes that will fit into the zip lock bag.” ).) ElTabech has received cut celery on 17 separate occasions, including six violations in July of 2008. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 9(c), Ex. A.)
The Kosher Process requires that the cereal served for breakfast be “marked as certified kosher.” (Kosher Process, Filing No. 187-2 at 2.) El-Tabech was served non-kosher Kellogg’s “Frosted Mini-Wheats” cereal for breakfast 10 times between December 2007 and March 2008. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 9(d), Ex. A at 7, 9, 11, 13, 21, 22.) El-Tabech was served nonkosher General Mills “Lucky Charms” on three recent occasions. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 9(d), Ex. A at 37, 40.)
The Defendants have had nearly ten months to resolve the initial operating difficulties which might be inherent in the implementation of the kosher procedure. However, despite feedback from El-Tabech and the efforts of El-Tabech’s counsel, the same problems continue to occur.
Violations of TSCI Food Service Procedures. The Defendants’ subordinates are also unable or unwilling to abide by their own food service procedures when providing meals to ElTabech. At times, this failure prevents El-Tabech from consuming the vegan entrées, fruit, lettuce, and milk, which deprives El-Tabech of a significant source of nutrition.
11

According to the Food and Drug Administration, the vegan entrées 9 and milk10 are
“potentially hazardous foods.” Food and Drug Admin., U.S. Dep’t of Health and Human Services,
Food Code ¶ 1-201.10(B) at 14 (2005), available online at
http://www.cfsan.fda.gov/~dms/fc05-toc.html (defining potentially hazardous foods as foods of
animal or plant origin that are heat treated). The TSCI Food Service Safety and Sanitation
procedures state that “[p]otentially hazardous food requiring hot storage shall be transported at 135
degrees F[ahrenheit] or above” and “[p]otentially hazardous food requiring refrigeration during
storage shall be transported at 35-40 degrees [F]ahrenheit.” (Tecumseh State Corr. Inst., Neb. Dept.
of Corr. Services, Operational Mem. 108.01.01: Food Service: Safety and Sanitation (2006), Pl.’s
Ex. 3 at 12 ¶ XIII.C.-D.)
9 The vegan entrées are GoodSource dehydrated meals consisting primarily of rice, vegetable protein, and beans. (GoodSource Corrections, GoodSource Solutions, Inc., Oz Product Information (2000), Pl.’s Ex. 9 at 2, 3, 5, 8, 10.) The vegan entrées are bulk-prepared by TSCI staff by boiling it in a rice cooker and portioning into individual two-cup servings. (Kosher Protocol 1.01, Pl.’s Ex. 6 at 1 § A.) The individual two-cup servings are then microwaved to a temperature of 165 degrees Fahrenheit before transport to El-Tabech. (Kosher Protocol 1.02, Pl.’s Ex. 7 at 2 ¶ 2.) The five flavor varieties are served in rotation to El-Tabech during lunch and dinner. (Religious Kosher Menu, Filing 187-2 at 6–7, Sept. 21, 2007.) Protein amounts vary from 8 grams for the “Chicken & Fried Rice” entrée to 26 grams for the “Beans, Rice & ‘Sausage’” entrée per two-cup serving. (Oz Product Information, Pl.’s Ex. 9 at 1, 3.) The menu calls for two vegan entrée servings per day (Religious Kosher Menu, Filing 187-2 at 6–7), so the vegan entrées provide 16 to 52 grams of protein per day – a significant portion of the 54.4 grams of protein recommended by the R.D.A. for a person of El-Tabech’s age and mass. Commission on Life Sciences, National Research Council, Recommended Dietary Allowances 66 Table 6.4 (10th ed. 1989), available online at http://www.nap.edu/ openbook/0309046335/html/66.html.
10 El-Tabech is served Meadow Gold 1% lowfat pasteurized milk. (M. El-Tabech Aff., Pl.’s Ex. 1 ¶ 9(b), Ex. G.) Each one-carton serving provides 8 grams of protein. (M. El-Tabech Aff., Pl.’s Ex. 1, Ex. G.) El-Tabech is served two cartons per day. (Religious Kosher Menu, Filing 187-2 at 6–7.) The resulting 16 grams of protein represents a significant source of the 54.4 grams of protein recommended for a person the age and mass of El-Tabech. See fn. 11, supra.
12

Although every other prisoner in Gallery “F” has their meals delivered in a hot cart, and milk delivered in a refrigerated cart, the Defendants ignore their own food service safety and sanitation requirements when delivering meals to El-Tabech. They don’t use either the hot food transport cart or the refrigerated cart during the 25 minute trip from the kitchen to El-Tabech’s cell. While at first glance this might not seem significant, it is another example of how the Defendants go out of their way – even to the extent of violating their own regulations – to punish El-Tabech for his kosher diet, or at least make El-Tabech’s kosher meals as unappetizing as possible.
The two vegan entrées and two cartons of milk served to El-Tabech each day provide a minimum of 32 grams of protein, which equates to roughly 60% of the 54.4 grams of protein necessary to maintain El-Tabech’s health. Because, at times, El-Tabech cannot eat the vegan entrées or drink the milk, he is deprived of a significant amount of protein. The diet provided to El-Tabech is thus not “nutritionally-sufficient” in violation of the Court’s order.
The rotten fruit and lettuce served to El-Tabech also violates the Kosher Protocols and TSCI Food Service policy. “It is the policy of the Tecumseh State Correctional Institution that all inmates, confined within the institution, receive meals that are nutritionally adequate [and] properly prepared.” (Tecumseh State Corr. Inst., Neb. Dept. of Corr. Services, Operational Mem. 108.01.02: Food Service: Menu Planning & Meal Prod. (2006), Pl.’s Ex. 4 at 2.) The Religious Kosher Menu calls for “fresh fruit” with every meal, and lettuce at designated lunches and dinners. (Religious Kosher Menu, Filing 187-2 at 6–7 (emphasis added).) The fruits and lettuce served to El-Tabech have been partially or fully rotten 63 times. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 9(e), Ex. A.)
The kosher meals prepared by TSCI staff and served to El-Tabech are frequently non-kosher, transported in violation TSCI Food Service procedures, or rotten. El-Tabech is thus routinely
13

deprived of a significant source of nutrition, particularly protein. The diet provided by Defendants to El-Tabech is not “nutritionally-sufficient,” as required by the Court’s order, or in compliance with the Kosher Protocols or TSCI’s own Food Service procedures.11
B. Defendants Have Failed to Comply With the Court’s Order To Post a Prayer Schedule and Reduce Disruptions of El-Tabech’s Daily Prayers.
On July 17, 2007, this Court ordered that Defendants post a prayer schedule and reasonably accommodate El-Tabech’s prayer times to the extent possible without altering the prison schedule. (Mem. and Order, Filing No. 179 at 6.) A prayer schedule was finally posted in the SMU on September14, 2007. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 33.) However, the prayer schedule is not posted near El-Tabech’s cell door, and cannot be read from inside the “F” Gallery. (Id. at ¶ 34.) It is also not kept up-to-date. (Id. at ¶ 35.) By posting the prayer schedule where it can’t be seen by the TSCI staff who interact with El-Tabech, and by not maintaining a current prayer schedule, Defendants subject El-Tabech to unnecessary disruptions of his daily prayers.
Since the prayer schedule was first posted in September 2007, a total of 139 unnecessary disruptions have occurred:

Month Sept. 2007 Oct. 2007 Nov. 2007

# of Disruptions
7
19
3

Disruption Dates
9/4, 9/10, 9/14, 9/23, 9/24 (x2), 9/29 10/1, 10/2, 10/3 (x2), 10/4 (x3), 10/5, 10/7, 10/9, 10/10, 10/11, 10/12, 10/17, 10/18, 10/21, 10/23, 10/24, 10/26 11/10, 11/11, 11/28

11 From April 17 to May 15, 2008, TSCI provided El-Tabech with prepackaged kosher foods or kosher items in the TSCI kitchen that were still in their own skin. TSCI discontinued that practice on May 15, 2008. Since May 15, El-Tabech has refused to eat the vegan entrée or any food handled directly by TSCI staff that is not prepackaged or still in its own skin. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶¶ 24–28.)
14

Dec. 2007 Jan. 2008 Feb. 2008 March 2008 April 2008
May 2008 June 2008 July 2008

4

12/7, 12/16, 12/26, 12/27

10

1/4, 1/12, 1/16, 1/17, 1/20, 1/21, 1/24, 1/25, 1/29, 1/30

7

2/3, 2/4 (x2), 2/11, 2/14, 2/16, 2/17

20

3/1, 3/2, 3/3, 3/4, 3/7, 3/8, 3/9, 3/10 (x3), 3/12, 3/17, 3/18, 3/20, 3/22, 3/23 (x2), 3/24, 3/25, 3/29

17

4/3, 4/4, 4/6, 4/8, 4/9, 4/11, 4/12 (x2), 4/14, 4/17, 4/18, 4/20, 4/24, 4/25, 4/28, 4/29, 4/30

5/2, 5/3, 5/5 (x2), 5/6, 5/7 (x2), 5/8 (x2), 5/9 (x4), 5/10

27

(x2), 5/11 (x3), 5/12, 5/13, 5/15, 5/16, 5/19, 5/21, 5/22,

5/24, 5/29.

10

6/1 (x2), 6/2, 6/5, 6/9, 6/10 (x2), 6/17, 6/19, 6/24.

15

7/3, 7/4 (x2), 7/5, 7/7, 7/9, 7/10, 7/11, 7/13, 7/14, 7/16, 7/19, 7/21, 7/24, 7/28.

(Excerpted from M. El-Tabech Aff., Pl.’s Ex. 1 ¶ 39, Ex. F.) Although the Court recognized that accommodating El-Tabech’s prayers does not require
altering the prison’s schedule, the disruptions at issue here are unrelated to any scheduled activity and could just as easily have been addressed either before or after El-Tabech’s prayers. Put another way, El-Tabech does not complain about any interruption of his daily prayers that occurs as a result of a scheduled prison activity or an activity that must occur during a given time frame. Rather, ElTabech’s complaint is that TSCI staff regularly disrupt his prayers for no apparent reason, or to ask routine questions that could be addressed at another time.
Seventy-eight of these disruptions occurred when TSCI staff opened and closed the service hatch on El-Tabech’s cell door for no discernible reason. (Id. at ¶ 39(a)-(e), Ex. F.) Thirty-five disruptions occurred when TSCI staff opened the service hatch to deliver or pick up non-kosher

15

meals, which El-Tabech no longer receives.12 (Id. at ¶ 39(f), Ex. F.) The remaining disruptions occurred for a variety of reasons, including queries from staff about supply cart items (6 times), yard time (7), legal calls (2), law library access (2), porter duties (2), as well as the pick up or delivery of miscellaneous items such as sheets and blankets, garbage, paperwork or eye drops (15). (Id. at ¶ 39(g)-(h), Ex. F.) On several occasions, the disruption occurred even after the staff member had been informed by El-Tabech that a prayer time was imminent. (Id. at ¶ 41.) Most recently, Caseworker Watkins has forced El-Tabech to choose between his prayer time and weekly law library access by scheduling El-Tabech’s library access to conflict with his evening prayer, despite the fact that at least four other library sessions are available each day that would not pose a conflict. (Id. at ¶ 43.) II. THIS COURT SHOULD CRAFT A REMEDY THAT MANDATES DEFENDANTS’
COMPLIANCE WITH THIS COURT’S ORDERS. “Civil contempt sanctions may be imposed for either or both of two distinct purposes, to coerce compliance with a court order, and to compensate the complainant for actual losses sustained by him as a result of the defendants’ contumacy.” In re Tetracycline Cases, 927 F.2d 411, 413 (8th Cir. 1991). Generally, a compensatory sanction “may not exceed the actual loss to the complainant caused by the actions of respondent, lest the contempt fine become punitive in nature, which is not appropriate in a civil contempt proceeding.” Id. The Defendants are in contempt of the Court’s orders to provide a “nutritionally-sufficient kosher diet” and to post a prayer schedule and “adjust activities or reduce disturbances as
12 On or about May 15, 2008, TSCI staff began placing a sign that reads “Feeding. Do Not Open Hatch. F-19 El-Tabech” on El-Tabech’s door when his kosher meal is served. (M. El-Tabech Aff., Pl.’s Ex. 1 ¶ 43.) Even with the sign, TSCI staff have interrupted El-Tabech’s prayers 11 times for non-kosher meal delivery or pick up. (Id. at ¶ 40(f).)
16

appropriate.” The Court should impose sanctions upon Defendants that remedy El-Tabech’s present situation and compensate him for expenses incurred due to Defendants’ non-compliance.
A. Remedies for Failure to Provide “Nutritionally-Sufficient Kosher Diet.” Since Defendants cannot manage to comply with the Kosher Process and Protocols in preparing meals for El-Tabech, the Defendants should be required to provide El-Tabech with prepackaged kosher meals or prepackaged kosher foods available in the kitchen effective immediately.13 In addition, due to Defendants’ failure to comply with the Kosher Process and Protocols, ElTabech has supplemented his diet with prepackaged kosher food purchased from the TSCI Canteen. (M. El-Tabech Aff., Pl.’s Ex. 1 at ¶ 10.) El-Tabech has spent $532.52 on these purchases (Id. at ¶ 10, Ex. B), and should be reimbursed for this amount. B. Remedies for Failure to Reasonably Accommodate Prayer Schedule. To remedy Defendants’ failure to post and accommodate El-Tabech’s prayer schedule, the Court should require that Defendants immediately post a current Islamic prayer schedule that shows the daily time for each of the five required prayers outside El-Tabech’s cell door. In addition, Defendants should maintain this prayer schedule by replacing it if it is removed or as the prayer times change. Finally, the Court should order that Defendants not disturb El-Tabech during posted prayer times, except for an emergency or previously scheduled activity.
13 Defendants have already demonstrated they can immediately provide this remedy. After the April 15, 2008, discovery of feces in El-Tabech’s vegan entrée, TSCI began providing El-Tabech provided with meals consisting entirely of prepackaged, kosher items already available in the kitchen. (M. El-Tabech Aff., Pl.’s Ex. 1 ¶¶ 25-26.) The items were either factory-sealed or “in their own skin,” such as fruit and boiled eggs. (Id.) The milk and Ensure nutritional supplement were also transported and served cold using ice-filled plastic bags. (Id.) The Defendants discontinued this practice on May 15, 2008. (Id. at ¶ 27.)
17

REQUEST FOR HEARING Although El-Tabech has no additional evidence to present to the Court, El-Tabech suggests that Defendants should personally appear before the Court to explain why they should not be held in contempt and why their subordinates have refused to comply with the Court’s prior orders.
CONCLUSION WHEREFORE, El-Tabech respectfully requests that this Court: 1. Enter an order requiring Defendants to show cause why they should not be held in contempt; 2. Adjudge Defendants in contempt; 3. Enter an order requiring Defendants to supply El-Tabech with a “nutritionally-sufficient kosher diet” that consists of either prepackaged kosher meals or prepackaged kosher foods available in the TSCI kitchen; 4. Enter an order requiring Defendants to compensate El-Tabech in the amount of $532.52 for kosher food purchases from the canteen since the implementation of the current meal plan; 5. Enter an order requiring Defendants to immediately post and maintain outside Plaintiff’s cell door a current Islamic prayer schedule that shows the time of each of the five required daily prayers; 6. Enter an order that Defendants not disturb Plaintiff during these posted prayer times, except for an emergency or previously scheduled activity; 7. Award El-Tabech his reasonable attorney’s fees and costs in monitoring Defendants’ compliance and bringing this Motion for enforcement of the Court’s orders; and 8. For such further, additional, or different relief as deemed appropriate by the Court. Dated this 26th day of August, 2008.
18

MOHAMED A. EL-TABECH, Plaintiff.

BY: OGBORN, SUMMERLIN & OGBORN, P.C. GENE SUMMERLIN - 19611 TED J. LANE - 23426 610 J Street, Suite 200 Lincoln, NE 68508 (402) 434-8040 gene@osolaw.com ted@osolaw.com

BY:

/s/ Gene Summerlin

19

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 26th day of August, 2008, the foregoing Brief in Support of Motion for an Order to Show Cause Why Defendants Should Not Be Held in Contempt was electronically filed using the CM/ECF system which sent notification of the filing to: Matthew A. Works Assistant Attorney General 2115 State Capitol Bldg. Lincoln, NE 68509 matt.works@ago.ne.gov Attorney for Defendants A courtesy copy of the foregoing Brief in Support of Motion for an Order to Show Cause Why Defendants Should Not Be Held in Contempt was sent on the 26th day of August, 2008, via U.S. First Class Mail, postage prepaid, to: George Green, General Counsel Kathy Blum, Associate Legal Counsel Nebraska Department of Correctional Services P.O. Box 94661 Lincoln, NE 68509-4661
/s/ Gene Summerlin
20

 
 4:04-cv-03231-JFB-TDT Doc # 212 Filed: 10/21/08 Page 1 of 2 - Page ID # 2199

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

) PLAINTIFF’S MOTION FOR RELIEF

) UNDER FED. R. CIV. P 69(a) OR 70

)

)

)

Plaintiff, pursuant to Fed. R. Civ. P. 69(a) and 70, requests that t he Court enter an order

requiring the Defendants and/or Shane Osborn, the Nebraska State Treasurer, and Carlos Castillo,

the Nebraska Director of Administrative Services, pay the judgment for attorneys’ and costs entered

by this Court on May 5, 2008 (Judgm ent, Filing No. 204, May 5, 2008) in the total am ount of

$204,856.28 within 10 days of the date of this Court’ s order, together with the additional interest

and relief sought in this motion.

In addition, Plaintiff requests that the Court increase the amount of post-judgment interest

payable on such judgment to a rate deemed reasonable by the Court and appropriate to insure the

Defendants’ compliance with the Court’s order. Palintiff further requests that the Court require that

Defendants reimburse Plaintiff’s counsel for interest on their law firm’s operating note at the rate

of $28.47 per day from the date of judgment until paid. Finally, Plaintiff requests that in the event

Defendants or any representative fr om the State of Nebraska appeal from this Court’s order

effectuating the relief sought above, that the Court not stay execution of the judgm ent pending

appeal.

In support of this Motion, Plaintiff relies upon itsBrief in Support of Plaintiff’s Motion for

Relief under Fed. R. Civ. P. 69(a) or 70, and Plaintiff’s Index of Evidence.

4:04-cv-03231-JFB-TDT Doc # 212 Filed: 10/21/08 Page 2 of 2 - Page ID # 2200
MOHAMED A. EL-TABECH, Plaintiff
BY: OGBORN, SUMMERLIN & OGBORN, P.C. GENE SUMMERLIN - 19611 TED J. LANE - 23426 610 J Street, Suite 200 Lincoln, NE 68508 (402) 434-8040 gene@osolaw.com ted@osolaw.com
BY: /s/ Gene Summerlin
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 21st day of October, 2008, the foregoing document was electronically filed using the CM/ECF system which sent notification of the filing to the following:
Matthew A. Works Assistant Attorney General 2115 State Capitol Bldg. Lincoln, NE 68509 matt.works@ago.ne.gov
/s/ Gene Summerlin

4:04-cv-03231-JFB-TDT Doc # 214 Filed: 10/21/08 Page 1 of 19 - Page ID # 2209

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff, v.
HAROLD W. CLARKE, ET AL. Defendants.

)

)

Case No.: 4:04CV3231

)

)

) BRIEF IN SUPPORT OF PLAINTIFF’S

) MOTION FOR RELIEF UNDER FED. R.

)

CIV. P 69(a) OR 70

)

)

INTRODUCTION

This Court issued a judgment directing Defendants to pay $204,856.28 in attorneys’ fees and

costs to Plaintiff’s attorneys. Defendants refuse to pay the judgment.

Federal courts are not reduced to issuni g judgments against state officers and hoping for compliance.
. . . The defendants . . . last desperate effort [to] . . . refuse[] to pay over the attorneys’ fees, raising Eleventh Amendment arguments . . . [is] so clearly meritless as to be frivolous.

Gates v. Collier, 616 F.2d 1268, 1271 (5th Cir. 1980).

[T]he district court awarded ARC attorneys’fees. The State did not comply with this valid court order. A di strict court may take any reasonable action to secure compliance with its orders, and only when the district court’s response is so inappropriate as to am ount to an abuse of discretion will the Court of Appeals intervene.

Association for Retarded Citizens v. Olson, 713 F.2d 1384, 1396 (8th Cir. 1983).

Where state law fails to supply the necessaryprocedure, or actually stands in the way of enforcement [of a judgm ent against the State], the district court ma y take the necessary steps to ensure compliance with its judgment.

Hankins v. Finnel, 964 F.2d 853, 860 (8th Cir. 1992).

A state cannot frustrate the intent of section 1988 by setting up state law barriers to block enforcement of an attorneys’ fee award.

Spain v. Mountanos, 690 F.2d 742, 746 (9th Cir. 1982).

4:04-cv-03231-JFB-TDT Doc # 214 Filed: 10/21/08 Page 2 of 19 - Page ID # 2210
If a state agency refuses to adhere to a court order, a financial pena lty may be the most effective means of insuring compliance.
Hutto v. Finney, 437 U.S. 678, 691 (1978).
On May 5, 2008, t his Court entered judgment against the Defendants for $204,856.28 in
attorneys’ fees and costs. (Mem. and Order, Filing No. 203 at 2-4, May 5, 2008.) The Defendants refuse1 to comply with this Court’s order and pay the judgment to Plaintiff’s attorneys.2 As every
federal court that has addressed the issue has held, the State has no basis to refuse to comply with
a valid f ederal court order to pay attorneys’ f ees under 42 U.S.C. § 1988. This Court has the
authority to order the Defendants or the State Treasurer and Director of Administrative Services to
immediately pay the judgment to Plaintiff’s attorneys. The Nebraska claims process which requires
legislative approval and appropriation prior to the State’s payment of a federal court judgment for
attorneys’ fees under 42 U.S.C. § 1988 is preempted by the Supremacy Clause of the United States
Constitution.
1 Defendants claim that they are not technically refusing to pay the judgment. Rather, the Defendants claim they will pay the judgm ent if the Plaintiff files a claim for the am ount of the judgment with the Nebraska State Claims Board, the Board approves the “claim,” and the Nebraska Unicameral agrees to appropriate m oney to fund the Defendants’ paym ent of the judgm ent in accordance with Neb. Rev. Stat.§ 25-1806 and the State Miscellaneous Claims Act, Neb. Rev. Stat. § 81-8,294 et. seq. Since this Court’s order awarding attorneys’ fees occurred after the end of the 2008 Legislative Session, the earliest that an appropriations bill could be passed would be the 2009 Legislative session which begins January 7, 2009, nad ends June 4, 2009. Appropriations for claims against the State are generally passed near the end of the Legislative Session. See e.g. , LB 1019 (2008 Bill for payment of claims against the State approved by Governor April 2, 2008, Legislative session ended April 17, 2008), thus, even a ssuming that a legislative appropriation is m ade, the earliest that Defendants would pay the judgment is June of 2009, more than a year after this Court’s entry of judgment.
2 In the Eighth Circuit, awards of attorneys fees under section 1988 and similar fee shifting statutes are made to the prevailing party’s attorney. Ratliff v. Astrue, 540 F.3d 800 (8th Cir. 2008); Curtis v. City of Des Moines, 995 F.2d 125, 129 (8th Cir. 1993).
2

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FACTUAL BACKGROUND On July 17, 2007, this Court found that defendants violated Moham ed El-Tabech’s civil rights. (Mem. and Order, Filing No. 179 at 5, 6J, uly 17, 2007.) On May 5, 2008, this Court entered a judgment against the defendants for attorneys’ fees and costs of $204,856.28. (Mem. and Order, Filing No. 203 at 2-4, May 5, 2008.) Despite this Court’s judgment in favor of Plaintiff, the Defendants have refused to pay the attorneys’ fees and costs awarded to Plaintiff. After Defendants initially refused to respond to Plaintiff’s counsel’s inquiries concerning satisfaction of the judgment, Plaintiff’s counsel informed Defendants that Plaintiff intended to file a motion under Fed. R. Civ. P. 69(a) and 70 seeking enforcement of the judgment. (G. Summerlin Aff., Pl.’s Ex. 1 at ¶¶ 3-4.) Defendants’ attorneys then stated that the judgment had not been paid “due to a glitch in the system . Things are m oving now and it shouldn’t be t oo much longer.” (G.Summerlin Aff., Pl.’s Ex. 1 at ¶ 5, Ex. A.) Ina subsequent telephone call, Defendants’ informed Plaintiff that the State would issue a warrant for payment of the judgment within two to six weeks. (G. Summerlin Aff., Pl.’s Ex. 1 at¶ 5.) Relying on the State’s promise to quickly pay the judgment, Plaintiff agreed not to file a motion for enforcement of the judgment. (G. Summerlin Aff., Pl.’s Ex. 1 at ¶ 5, Ex. B.) On October16, 2008, the State reneged on this agreement and took the position that the Defendants would not pay the judgment unless Plaintiff’s counsel submitted to the requirements of the State Miscellaneous Claims Act as outlined in Neb. Rev. Stat.§ 25-1806 and Neb. Rev. Stat. § 81-8,294 et. seq. (G. Summerlin Aff., Pl.’s Ex. 1 at ¶ 6, Ex. C.) The State Miscellaneous Claims Act requires that Plaintiff’s counsel submit a claim for the amount of the judgment to the State Claims Board, that the claimbe approved by the Board, that the claim then be approved by the Legislature, and th at the Legislature appropriate funds to pa y the claim. Neb. Rev. Stat. § 81-8,300. Acceptance of payment under this statutory procedure results
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in “a complete release . . . of any claimagainst the state and against the employee of the state whose act or omission gave rise to the claim by reason of the same subject matter.” Neb. Rev. Stat. § 818,301.3 Plaintiff continues to litigate Defendants’ compliance with this Court’s substantive orders and Plaintiff’s counsel is entitled to and intends toseek supplemental attorney’s fees for Plaintiff’s counsel’s post-judgment monitoring. See Plaintiff’s Motion for Contem pt, Filing 205, Aug. 26, 2008; Mem. and Order , Filing 203 Ftnt. 1, May 5, 2008. Plain tiff and Plaintif f’s counsel are unwilling to release these claims in order to obtain payment under the Miscellaneous Claims Act.
Finally, after Defendants reneged on their agreement to pay the judgment, Plaintiff’s counsel provided Defendants’ counsel with citations to the authority cited in this brief and i nformed Defendants’ counsel that Plaintiff would proceed with a m otion to e nforce the judgm ent. (G. Summerlin Aff., Pl.’s Ex. 1 at ¶ 7,Ex. C.) In response, Defendants’ stated that if this Court granted the Plaintiff’s motion to enforce the judgm ent, the Defendants would sim ply appeal the District Court’s decision and further delay payment to Plaintiff’s counsel. (G. Summerlin Aff., Pl.’s Ex. 1 at ¶ 7.)
ARGUMENT I. NEITHER THE STATE OF NEBRASKA NOR ITS OFFICIALS CAN REFUSE
TO PAY A VALID FEDERAL DISTRICT COURT JUDGMENT OR RELY UPON STATE STATUTORY SCHEMES TO DELAY PAYMENT OF THE JUDGMENT. Federal District Courts unquestionably have the authority to order States and their officials to comply with a federal court’s orders , including those requiring the payment of a judgment for attorneys’ fees under 42 U.S.C. § 1988. Similarly, state statutory or constitutional schemes which
3 See, e.g., L.B. 1019 (2008 State Claims Bill which directed that no payment shall be made to claimants “until a receipt and rel ease in full, releasing the State of Nebraska, its officer, employees, and agents, and their successors and assgi ns, has been filed by each of the beneficiaries respectively.”) (available online at http://uniweb.legislature.ne.gov/FloorDocs/Current/PDF/ Final/LB1019.pdf)
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purport to require a plaintiff to obtain legislativeappropriation or approval prior to enforcing a valid federal court judgment against a State are preempted by the Supremacy Clause of the United States Constitution. Following t he passage of 42 U.S.C. § 1988 in 1976, the federal courts m ade it explicitly clear that States could not frustrate the paym ent of a valid federal court judgm ent by hiding behind state statutes or constitutional provisions which impose procedural burdens on the collection of a 42 U.S.C. § 1988 judgment against a State or its officials.
A. Plaintiff’s Judgment for Attorneys’ Fees Is a Judgment Against the State of Nebraska.
Where attorneys’ fees are awarded against a state official in his official capacit y, “it is intended that the attorneys’ fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).” Hutto v. Finney, 437 U.S. 678, 694 (1978); Tabech v. Gunte,r 869 F.Supp. 1446, 1474 (D. Neb. 1994) (ordering that attorneys’ fee award under 42 U.S.C. § 1988 “be paid by defendants Clarke and Hopkins, in their official capacities, to the Clerk ofthe United States District Court for the District of Nebraska” and that Clerk “shall distribute said sum to the trust account of the law firm.”)
B. The State Has No Eleventh Amendment Immunity Against the Enforcment of a Judgment for Attorneys’ Fees and Any State Statute Which Inhibits the Collection of a Valid Judgment for Attorneys’ Fees under 42 U.S.C. § 1988 Is Preempted by Federal Law.
In Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980), a group of inmates brought suit against the Superintendent of the Mississippi State Penitetniary and other state officials alleging that various conditions at Mississippi’s Parchman Penitentiary violated the inmates’ constitutional rights. After prevailing on their constitutional claims, the district court awarded plaintiffs attorney’s fees under 42 U.S.C. § 1988. Id. at 1270-71. To enforce the judgm ent for attorneys’ fees, the district court
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ordered that the defendant prison officials submit a requisition to the State Auditor for the issuance of a warrant upon the State Treasurer to satisf y the judgment out of funds appropriated for the operation of Parchman or out of any other funds subject to the control of the State Treasurer. Id. at 1270. Like the Defendants in this case, the Mississpi pi defendants asserted that the State could not pay the judgment without first obtaining a legislative appropriation. Id. The Mississippi officials relied on Miss. Code Ann. § 11-45-5, which required that the Mississippi legislature appropriate funds to pay any judgment against the State. Id. Since the district court’s order required the Auditor and Treasurer to pay the judgm ent without an appropriation by the legislature, the de fendants claimed that the district court lacked the authority to order the defendants to pa y the judgment in violation of Mississippi law.
The Fifth Circuit rejected Mississippi’s claim. The court began its analysis by pointing out that Congress abrogated the States’ Eleventh Amendment immunity when it enacted 42 U.S.C. § 1988. Id. at 1271 (citing Hutto v. Finney, 437 U.S. 678, 693-94 (1978)); see also , Kentucky v. Graham, 473 U.S. 159, 171 (1985) (“[I]n an official capacity action . . . a plaintiff who prevails is entitled to look for relief, both on the merits and for fees, to the governmental entity.”); Missouri v. Jenkins, 491 U.S. 274, 279 (1989) (“An award of attorneys’ fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment.”). In additi on, Congress provided the federal district courts with the m eans to enforce their judgments through Federal Rule of Civil Procedure 69, which authorizes execution on a districtcourt’s judgment, and Federal Rule of Civil Procedure 70, which authorizes the court to direct or appoint an individual to do any act necessary to comply with a district court’s judgment. Id. at 1271.
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Where a state e xpresses its unwillingness to com ply with a valid judgm ent of a federal district court, the court may use any of the weapons generally at its disposal to ensure compliance. Federal courts are not reduced to issuing judgments against state officers and hoping for compliance.
Id. at 1271 (internal citations omitted).
The court of appeals explained that the issu e was not whether the district court’s or der
required that Mississippi officials violate state la w, but rather, whether the Mississ ippi officials
could hide behind state law to refuse to implement a federal court’s order. Id. at 1272.
Congress has declared that states and their officials who violate federal civil rights laws must reimburse the successful plaintiff for costs incur red in seeking redress. To strike down the [district court’s] order in this case because it conflicts with the laws of Mississippi would be no different than reversing a bare judgm ent for attorneys’ fees. In either case, we woudl be allowing the state, by legislative action, to recloak itself with Eleventh Amendment immunity which Congress has chosen to remove. Such a result would be contraryto the command of the Supremacy Clause of the United States Constitution.
Id.
In the strongest of t erms, the court of appeals held that Mississippi’s reliance upon
Mississippi law to avoid paying the judgment for attorneys’ fees until the legislature appropriated
funds was “so clearly meritless as to be frivolous.” Id. at 1280 (emphasis added).
The court reached a similar result in Gary W. v. Louisiana, 622 F.2d 804 (5th Cir. 1980).
In Gary, the plaintiffs obtained a judgment for attorneys’ fees under 42 U.S.C. § 1988 against the
State of Louisiana and William Cherry, in his of ficial capacity as the Secretary of the Louisiana
Department of Health and Human Resources (“DHHR”). Id. at 805. When the defendants initially
refused to pay the judgment, plaintiffs obtained an order from the district court pursuant to Fed. R.
Civ. P. 70 directing Cherry, in his official capaicty as Secretary of DHHR,to pay the judgment from
DHHR funds. Id. Defendants argued that the district courtlacked the authority to direct Cherry to
pay the judgment because the Louisiana Constitution prohibited the payment of a judgment against
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the state except from funds appropriated for that purpose by the legislature. Id. at 805. Louisiana claimed that the federal court could do nothing to ensure compliance with its judgment since Rule 69(a) provided that procedures for enforcement of a judgment were to be carried out in accordance with state law, and Rule 70 did not provide aanlternative means for executing on a money judgment. Id. at 806.
Like the Gates court, the Gary court rejected these argum ents: “[A]n order direct ing the responsible state official to satisfy t he judgment out of state funds is the only reasonable way to ensure compliance with a valid federal judgment.” Id. at 807. Under the Supremacy Clause of the United States Constitution, neither a state statute nor a state constitutional provision could prevent a federal district court fromenforcing its judgment. “State constitutional provisions, as well as state statutes must comport with federal law.” Id. at 807. See also, Collins v. Thomas, 649 F.2d 1203, 1206 (5th Cir. 1981) (“It is now beyond dispute that a federal district court has the authority to order that attorneys’ fees be paid out of the state’ s treasury. . . . The County m ay not successfully hide behind state procedural shields to avoid the c onsequences of a valid district court judgm ent effectuating an appropriate §1988 award.”); Spain v. Mountanos, 690 F.2d 742, 746 (9th Cir. 1982) (“[A] state cannot frustrate the intent of s ection 1988 by setting up sta te law barriers to block enforcement of an attorney’s fee award” and the federal district court was authorized to order the California Controller to pay the judgm ent despite California’s statutory requirem ent that the judgment be paid only after appor ved by legislature and funds forpayment are appropriated); Arnold v. Blast Intermediate Unit 17, 843 F.2d 122, 128 (3rd Cir. 1988) (Blsat’s argument that it cannot pay “non-budgeted” judgment “founders on the precedential shoals that support the enforcement of a federal judgment even where state law bars the seizure of funds or the paym ent of a judgm ent without legislative appropriation. State and local entities may not frustrate the supremacy of federal
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law through the adoption of immunizing procedures or vague statutory schemes.”) In Hankins v. Finnel, 964 F.2d 853 (8th Cir. 1992), the Eighth Circuit Court of Appeals
expressly adopted Gates, Gary, and Spain in holding that a federal district court could enforce its section 1983 judgment against the State of Missouri and a state official pursuant to Federal Rule of Civil Procedure 69(a) or 70, despite a Missouri statute to the contrary. Id. at 855. Hankins was an inmate at the Missouri State Penitentiary whereFinnel was a teacher. Hankins brought suit against Finnel alleging that Finnel sexually assaulted him. The jury returned a verdict in favor of Hankins against Finnel. Id. at 854. Prior to paying the judgment, Missouri filed an ex parte action in state court seeking to obtain a percentage of Ha nkins’ judgment against Finnel under the Missouri Incarceration Reimbursement Act (the “IRA”) which allowed the state to seek up to ninety percent of a prisoner’s assets to reimburse the state for incarceration expenses. Id. at 854. The IRA defined a prisoner’s assets to include “a money judgment received from the State as a result of a civil action against one of its employees.” Id. Under this reimbursement scheme, Missouri paid the judgment into Hankins’ inm ate account and sim ultaneously withdrew the judgm ent amount as “cell reimbursement” under the IRA. Id. at 854-55.
The district court determined that it had authority under Fed. R. Civ. P. 69(a) to enforce its judgment and conduct proceedings to aid Hankins in executing the judgm ent. Id. at 855. The district court held that because Mi ssouri’s IRA conflicted with the purposes of section 1983, the Supremacy Clause invalidated t he Missouri statute as it was applied to Hankins and the court ordered the State of Missouri to repay the funds it had taken from Hankins inmate account. Id.
On appeal, the Eighth Circuit held that Missouir’s IRA “does not relieve the officials taking possession of [Hankins’] fund from liability to [r e]pay the mone y in response to a court order directed to those individuals.” Id. at 859. The Court of Appeals concluded “that the district court
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retains plenary power to enforce its commands.” Id. at 860 (citing Spain, 690 F.2d at 747). Where state law fails to supply the necessary procedure [to enforce the judgment], or actually stands in the way of enfor cement, the district court m ay take the necessary steps to ensure compliance with its judgment.
Id. (citing Gary, 622 F.2d at 806-07; Gates, 616 F.2d at 1271-72). Thus, under either Fed. R. Civ. P. 69(a) or 70, the district court had the power to enforce its judgm ent against the Missouri state officials. Id. at 860-61.
Under the Supremacy Clause, state law is preem pted whenever it contradict s or interferes with an Act of Congress. . . . Preemption in this instance will arise when state law stands as an obstacle to th e accomplishment and ex ecution of the full purposes and objectives of Congress [under section 1983]. Id. at 861 (internal citations and quotations omitted). Similarly, in Association f or Retarded Citizens v. Olson , 713 F.2d 1384 (8th Cir. 1983), ARC obtained an interim attorneys’ fee award under 42 U.S.C. § 1988 against a number of North Dakota State Officials sued in their official capacities. When the State and its oficials failed to pay the interim judgment, the district court entered an order requiring the State to pay a n additional fourteen percent interest on the amount of the judgment from the date of allowance until paid and requiring the State to reim burse ARC’s counsel for all interest payments on counsels’ operating loans until the State paid the interim attorneys’ fee award. Id. at 1395. The Eighth Circuit Court of Appeals affirmed the authority of the district court to take these actions to enforce its judgment: [T]he district court awarded ARC attorneys’fees. The State did not comply with this valid court order. A distr ict court may take any reasonable action to secure compliance with its orders, a nd only when the district court’s response is so inappropriate as to am ount to a n abuse of discretion will the Court of Appeals intervene. . . . We cannot say the district court’s action under the circumstances was unreasonable. Id. at 1396 (citing Gates, 616 F.2d 1268).
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In the present case, the State of Nebraska and its officials take precisely the same position

previously rejected by the Third, Fifth, Eighth and Ninth Circuits. Nebraska asserts that because it

has a procedural statutory schem e which requires legislative appr oval and appropriation prior to

paying a federal court judgm ent for attorneys’ fees , the Plaintiff m ust comply with that sche me

before the Defendants’ obligation to pay the judgment arises. As stated by the Fifth Circuit Court

of Appeals in Gates, this argument is “so clearly meritless as to be frivolous.” Gates, 616 F.2d. at

1280. By enacting 42 U.S.C. § 1988, Congress abrogate d Nebraska’s Eleventh Am endment

Immunity with respect to awards of attorneys’ fees in civil rights cases. Hutto v. Finney, 437 U.S.

678, 693-94 (1978). Indeed, the “holding of Hutto . . . was not just that Congress had spoken

sufficiently clearly to overcome Eleventh Amendment immunity in enacting § 1988, but rather that

the Eleventh Am endment did not apply to an award of attorney’s f ees ancillary to a grant of

prospective relief.” Missouri v. Jenkins, 491 U.S. 274, 280 (1989).

The Congressional

purpose of 42 U.S.C. § 1983 “is two-fold: to compensate victims and to deter future deprivations

of federal constitutional rights.” Hankins v. Finnel, 964 F.2d 853, 861 (8th Cir. 1992). As the

legislative history of § 1988 makes clear, Congress believed that the awarding of attorneys’ fees was

critical to the enforcement of the civil rights laws.

The effective enforcement of Federal civil rights statutes depends largely on the efforts of private citizens. . . . Unless thejudicial remedy is full and complete, it will remain a meaningless right. Because a vast m ajority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts. In authorizing an a ward of reasonable attorneys’ fees, [the proposed legislation] is designed to give such persons effective access to the judicial process where their grievances can be resolved according to law.

H. Rep. No. 1558 at 1, 94th Cong., 2d Sess. (1976).

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If the law does not authorize the awarding of a ttorneys’ fees in m eritorious civil rights cases, many potential plaintiffs will be deterred from bringing deserving cases to remedy violations of the C onstitution, especially those cases in w hich the appropriate relief is primarily equitable or injunctive rather than monetary. 122 Cong. Rec. H 12165 (daily ed. Oct. 1, 1976). “Under the Supremacy Clause, state law is preempted whenever it contradicts or interferes with an Act of Congress.” Hankins , 964 F.2d at 861 (quoting Hayfield Northern R.R. Co. v. Chicago & N.W. Transp. Co., 467 U.S. 622, 627 (1984)). “Premption . . . will arise when state law stands as an obstacle to the accom plishment and execution of the full purposes and objectives of Congress.” Hankins, 964 F.2d at 861 (quoting Schneidewind v. ANR Pipelines Co., 485 U.S. 293, 300 (1988)). State statutory schemes which require legislative approval or appropriation prior to paying a federal court’s judgment for attorneys’ fees under 42 U.S.C. § 1988 are preempted by the Supremacy Clause of the United States Constitution. Gates, 616 F.2d at 1272; Gary W., 622 F.2d at 807; Spain, 690 F.2d at 746 (“Under the Supremacy Clause of the United States Constitution, a court, in enforcing federal law, may order state officials to take actions despite contravening state laws.”); see also Hankins, 964 F.2d at 861 (Missouri statute frustrating payment of damages under 42 U.S.C. § 1983 is preempted); Collins v. Dallas County, 649 F.2d 1203, 1206 (5th Cir. 1981) (“To the extent that § 1988's authorization of district court orders awarding attorneys’ fees conflicts with Texas’ restriction on the execution of judgments against counties, the federal statute must prevail over state law.”) Even more, Nebraska’s statutory scheme goes far beyond the mere imposition of procedural hurdles to the collection of a federal courtjudgment under § 1988, and demands that the acceptance of payment constitute “a complete release . . . of any claim against the state and against the employee of the state whose act or omission gave rise to the claim by reason of the same subject
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matter.” Neb. Rev. Stat. § 81-8,301. Because Defendants have failed to comply with this Court’s orders to honor Plaintiff’s First Amendment rights, post-judgment litigation in this case continues. See Plaintiff’s Motion for Contem pt, Filing 205, Aug. 26, 2008. Fur ther, this Court has already determined that Plaintiff’s counsel is entitled to seek supplem ental attorney’s fees for the postjudgment monitoring. Mem. and Order, Filing 203 Ftnt. 1, May 5, 2008. Neither Pl aintiff nor Plaintiff’s counsel are willing to release the Defe ndants and forgo these claims in order to obtain payment under the Miscellaneous Claims Act. To state the obvious, a state statute which purports to require a prevailing civil rights plaintiff to re lease not only a claim for attorneys’ fees, but the enforcement of injunctive relief designed to prot ect the plaintiff’s civil rights, “contradicts or interferes” with the purposes of Congress inenacting 42 U.S.C. § 1983 and 1988, and is, therefore, preempted by federal law. II. PLAINTIFF’S ATTORNEYS ARE ENTITLED TO AN ORDER REQUIRINGTHAT
DEFENDANTS IMMEDIATELY PAY THE JUDGMENT AND ADDITIONAL INTEREST AS A RESULT OF DEFENDANTS’ PRIOR DELAY IN PAYING THE JUDGMENT. A. This Court Possesses the Authority to Require the Defend ants to Pay the
Judgment for Attorneys’ Fees. As the Fifth Circuit recognized in Gates: Neither Hutto nor the legislative history of [42 U.S.C. § 1988] . . . address the question of how to m ake an unwilling state or its officials sat isfy a judgment for attorneys’ fees. This is not surprising however, for it has never been the practice of Congress, when providing a statutory basis for the recovery of money damages or costs including attorneys’ f ees, to specify in the sam e legislation the appropriate means of enforcing the judgm ent. In all likelihood, Congress assum ed it was unnecessary to consider the subject because the Federal Rules of Civil Procedure contains a provision for the execution of district court judgments, Fed.R.Civ.P. 69,
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and a provision authorizing the court to papoint an individual to do any act on behalf of a party who has refused to comply with the judgment himself, Fed.R.Civ.P. 70. We have been cited to no authority, nor have we found any, to indicate that these statutes do not apply to a state and its officials. Gates, 616 F.2d at 1271. In Gates, the district court order ed that the Mississippi Auditor and Treasurer satisfy the plaintiffs’ judgment for attorneys’ fees under 42U.S.C. § 1988 without awaiting legislative approval under Miss. Code Ann . § 11-45-5. “[T]he district acted well within its au thority to ensure compliance with its lawful orders. If statutory authority is needed for the court’s actions, it may be found in Fed. R. Civ. P. 70.” Gates , 616 F.2d at 1271. Sim ilarly, in Gary, the district court was authorized under Fed. R. Civ. P. 70(a) to order the Secretary of Louisiana’s Department of Health and Human Resources to pay the § 1988 attorneys’ fees judgment from his agency’s funds. Gary, 622 F.2d at 806. In Hankin,sthe Eighth Circuit Court of Appeals“conclude[d] that the district court retains plenary power to enforce its commands” and that the district court was authorized to order the Missouri officials to pay theplaintiff’s judgment under either Fed. R. Civ. P. 69 or 70. Hankin,s 964 F.2d at 860-61. As these cases m ake clear, there is no doubt that this Court possesses the authority to order the Defendants, or Shane Osborn and Carlos Castillo, the Nebraska Treasurer and Director of Administrative Services, respectively, to immediately pay the judgment for attorneys’ fees.4
4 The State Treasurer has a duty “[t]o disburse the public money upon warrants drawn upon the state treasury according to law.” Neb. Rev. Stat. § 84-602(2). A “warrant” is an order drawn by the Director of Administrative Services upon theState Treasurer, directing the Treasurer “to pay a specified amount to a specified payee by the useof a dual signature negotiable instrument.” Neb. Rev. Stat. § 81-1121(1)(b). The Director of Administrative Services must sign each warrant, and the Treasurer must countersign. Neb. Rev. Stat. § 81-1121(2), (3).
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B. Plaintiff is Entitled to Additional Interest to Compensate Plaintiff’s Counselfor the Defendants’ Delay in Paying the Attorneys’ Fees Judgment.
Throughout this litigation, the Defendants have demonstrated an astonishing itch to fight the Plaintiff at every turn. Defendants’ reluctance toobey this Court’s orders has resulted in additional post-judgment litigation to insure com pliance with the First Am endment rights of Plaintiff, Defendants’ adherence to the Kosher Meal Protocolpreviously agreed to by the Defendants, and to secure Plaintiff’s counsel’s reimbursement for attorneys’ fees and costs. As the Supreme Court held in Hutto, where “a state agency refuses to adhere to a court order, a financial penalty m ay be the most effective means of insuring compliance. The principles of federalism that inform Eleventh Amendment doctrine surely do not require federal courts to enforce their decrees only by sending high state officials to jail. The less intrusive powerto impose a fine is properly treated as ancillary to the federal court’s power to impose injunctive relief.” Hutto, 437 U.S. at 691.
In Association for Retarded Citizens v. Olson, 713 F.2d 1384 (8th Cir. 1983), North Dakota state officials refused to pay an interim award of attorneys’ fees under 42 U.S.C. § 1988. Instead of holding the officials in contem pt, the district court ordered that plaintiffs’ attor neys “receive fourteen percent interest on the interimaward from the date of allowance until paid, and . . . that the State reimburse ARC attorneys for all interest payments on operational loans taken out by ARC counsel until the State paid the interim fee award.” Id . at 1395. The Eighth Circuit affirm ed the action of the district court as a “reasonable actoin to secure compliance with its orders.” Id. at 1396.
Here, Defendants have ignored Plaintiff’s counsel’s inquiries concerning satisfaction of the attorneys’ fee judgment, have promised counsel that they will pay the judgm ent only to avoid or delay a motion for execution on the judgment, and then have disavowed that promise. Defendants currently assert that they cannot be forced to pay the judgm ent until the conclusion of the next
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legislative session in June of 2009, and promise to appeal any enforcement decision of this Court to further delay payment to Plaintiff’s counsel. The Defendants are unquestionably “a state agency [which] refuses to adhere to a court order, [and]a financial penalty may be the most effective means of insuring compliance.” Hutto, 437 U.S. at 691. Since the entry of judgment for attorneys’ fees on May 5, 2008, the law firm of Ogborn, Summerlin & Ogborn, P.C. has carried an operating line of credit with First National Bank of Omaha. (G. Summerlin Aff., Pl.’s Ex. 1 at ¶ 9.) The balance of the firm’s operating line has exceeded $204,856.28 from May 5, 2008, to date. (G. Summerlin Aff., Pl.’s Ex. 1 at ¶ 9.) Interest accrues on the line at the rate of five percent per year, or $28.47 per day attributable to the $204,856.28 due from the Defendants. (G. Summerlin Aff., Pl.’s Ex. 1 at ¶ 9.) Thus, as of October 21, 2008, the firm has incurred an additional $4,839.90 in interest obligations as a result of the Defendants’ refusal to pay the attorneys’ fee judgment, and the firm will continue to incur an additional $28.47 per day in interest until the judgment is paid. III. IN THE EVENT THAT THE COURT ENTERS AN O RDER REQUIRING THE
DEFENDANTS OR THE STATE OF NEBRASKA TO PAY THE JUDGMENT, THE JUDGMENT SHOULD NOT BE STAYED PENDING AN APPEAL BY THE DEFENDANTS. Pursuant to Fed. R. App. P. 8(a), “[a] party must ordinarily move first in the district court for the following relief: (A) a stay of the judgment or order of a district court pending appeal.” Fed. R. App. P. 8(A). In the event that this Court ordres the Defendants or any other officials of the State of Nebraska to satisfy the judgm ent for attorney s’ fees and costs, and a Notice of Appeal is thereafter filed by the Defendants or State officials, Plaintiff requests that this Court’s decline any request to stay the judgment pending appeal.
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4:04-cv-03231-JFB-TDT Doc # 214 Filed: 10/21/08 Page 17 of 19 - Page ID # 2225 CONCLUSION
Plaintiff respectfully requests that the Court enter an order directing the Defendants or the Treasurer and Director of Administrative Services for the State of Nebraska to immediately issue a warrant payable to Plaintiff’s counsel to satisfy the May 5, 2008, judgment for attorneys’ fees and costs. In addition, Plaintiff requests that the Court increase the amount of post-judgment interest payable on such judgment to a rate deemed reasonable by the Court and appropriate to insure the Defendants’ compliance with the Court’s order. Palintiff further requests that the Court require that Defendants reimburse Plaintiff’s counsel for interest on their law firm’s operating note at the rate of $28.47 per day from the date of judgment until paid. Finally, Plaintiff requests that in the event Defendants or any representative fr om the State of Nebraska appeal from this Court’s order effectuating the relief sought above, that the C ourt not stay execution of the judgment pending appeal.
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4:04-cv-03231-JFB-TDT Doc # 214 Filed: 10/21/08 Page 18 of 19 - Page ID # 2226 MOHAMED A. EL-TABECH, Plaintiff BY: OGBORN, SUMMERLIN & OGBORN, P.C. GENE SUMMERLIN - 19611 TED J. LANE - 23426 610 J Street, Suite 200 Lincoln, NE 68508 (402) 434-8040 gene@osolaw.com ted@osolaw.com BY: /s/ Gene Summerlin
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4:04-cv-03231-JFB-TDT Doc # 214 Filed: 10/21/08 Page 19 of 19 - Page ID # 2227 CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 21st day of October, 2008, the foregoing document was electronically filed using the CM/ECF system which sent notification of the filing to the following:
Matthew A. Works Assistant Attorney General 2115 State Capitol Bldg. Lincoln, NE 68509 matt.works@ago.ne.gov
/s/ Gene Summerlin
19

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
v. HAROLD W. CLARKE, et al.,
Defendants.

)

)

4:04CV3231

)

)

)

MEMORANDUM AND ORDER

)

)

)

)

)

This matter is before the court on defendants’ motion to stay execution of a judgment for attorney fees without posting a bond as required by Fed. R. Civ. P. 62(d), Filing No. 249.
On March 4, 2009, this court found the defendants in contempt of court. Filing No. 228, Order. On June 10, 2009, this court entered judgment against defendants awarding the plaintiff additional attorney fees of $73,360.20 and costs of $271.20. Filing No. 243, Order. The defendants appealed that order. Filing No. 246. Defendants move to stay execution of that judgment pending the appeal. The defendants contend that they are employees of the State of Nebraska and are indemnified by the State for actions and omissions occurring in the course and scope of their employment. They argue that the State of Nebraska is the judgment debtor in this case and cite a Nebraska statute for the proposition that no appeal bond or supersedeas bond “shall be required of the state, and the filing of notice signed . . . [the] Attorney General, or counsel for the state of intention to take such proceedings shall operate as a supersedeas of such judgment.” Neb. Rev. Stat. § 25-21,213. The defendants contend that the State of Nebraska is entitled to the same stay of execution the state court would give and argue that a bond is not necessary

because “the State of Nebraska is financially capable of paying the judgment and will not skip out on its obligation if the appeal is not successful.” Filing No. 249, Motion at 2.
The court entered an earlier order awarding fees and costs to the plaintiff. See Filing No. 204. Plaintiff has shown that although the defendants did not appeal that judgment, they did not pay the judgment until more than a year after it was entered. See Filing No. 251, Index of Evid., Ex. 1, Affidavit of Gene Summerlin at 2.
Under the federal rules, a party is entitled to a stay if a supersedeas bond is posted. Fed. R. Civ. P. 62(d). Alternatively, the party may move for the court to exercise its discretion to waive the bond requirement. Dillon v. City of Chicago, 866 F.2d 902, 904 (7th Cir. 1988); see also Fed. R. Civ. P. 62(g)(1). “When determining whether to waive the posting of bond, the district court considers several criteria: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment; (4) whether the defendant's ability to pay the judgment is so plain that the cost of a bond would be a waste of money; and (5) whether the defendant is in such a precarious financial situation that the requirement to post a bond would place other creditors of the defendant in an insecure position.” Dillon, 866 F.2d at 904. Also, the district court has discretion to order a partially secured or unsecured stay if the judgment creditor's interest in ultimate recovery is not unduly endangered. Federal Prescription Serv., Inc. v. American Pharm. Ass'n., 636 F.2d 755, 760-61 (D.C. Cir. 1980).
Under the federal rules, if a judgment is a lien on the judgment debtor's property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give. Fed. R. Civ. P. 62(f). The judgment
2

in this action, however, is against an individual and not the State of Nebraska, and the Nebraska statute that provides that the notice of appeal operates as a “supersedeas of such judgment until the time that final judgment in the Court of Appeals or Supreme Court is rendered in the cause. . . .” has no applicability. Neb. Rev. Stat. § 25-21,213.
The purpose of Fed. R. Civ. P. 62(d) is to insure that the appellant will pay the judgment if it is affirmed on appeal. Lightfoot v. Walker, 797 F.2d 505, 506 (8th Cir. 1986). Because the defendants delayed paying this court’s earlier judgment for attorney fees for more than a year, the plaintiff’s ability to recover the judgment would be hampered by a stay. In light of the untenable positions that the State has taken in the course of this litigation, the court finds that the defendants should be required to post a bond for the full amount of the judgment.
IT IS ORDERED that the defendants’ motion for a stay of enforcement of the judgment (Filing No. 249) is denied.
DATED this 16th day of October, 2009. BY THE COURT:
s/Joseph F. Bataillon Chief District Judge
*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their W eb sites. Likewise, the court has no agreements with any of these third parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
3

 
 4:04-cv-03231-JFB-TDT Doc # 225 Filed: 02/04/09 Page 1 of 6 - Page ID # 2350

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
v. HAROLD W. CLARKE, et al.,
Defendants.

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)

4:04CV3231

)

)

)

MEMORANDUM AND ORDER

)

)

)

)

)

This matter is before the court on plaintiff’s motion for relief under Fed. R. Civ. P. 69 or 70, Filing No. 212.1 On May 5, 2008, this court entered judgment in favor of plaintiff
for attorneys’ fees and costs in the amount of $204,856.28. Filing No. 203 at 2-4. Under
federal law, post-judgment interest accrues on that judgment at the rate set under 28
U.S.C. § 1961. Plaintiff seeks an order directing the defendants to immediately issue a
warrant payable to plaintiff’s counsel to satisfy the May 5, 2008, judgment and also seeks
an increase in the amount of post-judgment interest payable the judgment to a rate
deemed appropriate to insure the defendants’ compliance with the court’s order.
In support of its motion, the plaintiff has shown that the defendants will not pay the
judgment unless and until the plaintiff files a claim with the Nebraska State Claims Board,
the Board approves the claim, and the Unicameral agrees to appropriate money to fund
1Rule 69 provides for enforcem ent of m oney judgments by a writ of execution and states that “[t]he procedure on execution—and in proceedings supplem entary to and in aid of judgment or execution—m ust accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.” Fed. R. Civ. P. 69(a)(1). Rule 70 provides:
If a judgm ent requires a party to convey land, to deliver a deed or other docum ent, or to perform any other specific act and the party fails to com ply within the tim e specified, the court m ay order the act to be done—at the disobedient party's expense—by another person appointed by the court. Fed. R. Civ. P. 70(a). Rule 70 also provides that “[t]he court may also hold the disobedient party in contempt.” Fed. R. Civ. P. 70 (d).

4:04-cv-03231-JFB-TDT Doc # 225 Filed: 02/04/09 Page 2 of 6 - Page ID # 2351
the defendants’ payment in accordance with Neb. Rev. Stat. § 25-1806 and the State Miscellaneous Claims Act, Neb. Rev. Stat. § 81-8,294.2 Filing No. 213, Index of Evidence, Affidavit (“Aff.”) of Gene Summerlin at 4, Exhibit C, e-mail correspondence. Under the procedure, acceptance of the payment would operate as “a complete release by the claimant of any claim against the state and against the employee of the state whose act or omission gave rise to the claim by reason of the same subject matter.” Neb. Rev. Stat. § 81-8,301. The plaintiff has also shown that the law firm of Ogborn, Summerlin & Ogborn, P.C., maintains an operating line of credit that exceeds the amount of the attorneys’ fees judgment and has done so continually since May 5, 2008. Id., Summerlin Aff. at 4. Interest accrues on the outstanding balance of the operating line at 5.0% per year. Id. at 5. The daily interest that accrues on that portion of the operating line attributable to the defendants’ failure to pay the judgment is $28.47. Id. The plaintiff has shown that his attorneys’ firm has incurred interest obligations in the amount of $4,839.90 from the date of judgment to the date his motion was filed, October 21, 2008, and has incurred interest of $28.47 per day since then.
In response to the motion, the defendants assert that “[t]he Defendants, the Department of Correctional Services, and the State of Nebraska are not refusing to pay the judgment awarded by this court,” but seek only to follow state procedures. Filing No. 220, Defendants’ Brief at 4. They contend that “[t]o allow Plaintiff’s attorneys to circumvent the
2A m iscellaneous claim as used in the State Miscellaneous Claim s Act m eans “any claim against the state for which there is no other specific provision of law for the resolution of such claim .” Neb. Rev. Stat. § 81-8,294. Under the Miscellaneous Claim s Act, the State Claims Board has the “power and authority to receive, investigate, and otherwise carry out its duties with regard to (1) all claim s under the State Miscellaneous Claims Act, (2) all claim s under sections 25-1802 to 25-1807, (3) all claim s under the State Contract Claim s Act, (4) all requests on behalf of any departm ent, board, or comm ission of the state for waiver or cancellation of m oney or charges when necessary for fiscal or accounting procedures, and (5) all claims filed under section 66-1531.” Neb. Rev. Stat. § 81-8,297.
2

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system would expose the State of Nebraska to potential indebtedness greater than that allowed by its constitution. Instead, the procedures put in place through the Miscellaneous Claims Act assure that proper funds will be allocated so that the State does not fall below the Constitutionally allowed deficit.” Id.; see also Filing No. 221, Index of Evid., Ex. 2, Aff. of Laura Petersen.
Under the Federal Rules, “a money judgment is enforced by a writ of execution, unless the court directs otherwise” and “the procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.” Fed. R. Civ. P. 69 (a). Proceedings in aid of execution are governed by Neb. Rev. Stat. § 25-1564 to 25-1580. Nebraska law also provides that “fees and expenses awarded by a federal court or pursuant to sections 25-1802 to 25-1805 shall be paid in the manner provided in the State Miscellaneous Claims Act” and claims for such fees and expenses shall be filed with the State Claims Board in the manner provided in the Act. Neb. Rev. Stat. § 25-1807. That provision, however, applies only to “a civil action brought by the state or an action for judicial review brought against the state pursuant to the Administrative Procedure Act.” Moreover, to the extent that the Nebraska claims process that requires legislative approval and appropriation prior to the State’s payment of a federal court judgment conflicts with the purposes underlying § 1983 (to compensate victims and deter future deprivations of federal constitutional rights), it is preempted by federal law. See Hankins v. Finnel, 964 F.2d 853, 860-61 (8th Cir. 1992).
The court finds the defendants’ position is untenable. The defendants’ contention that Rule 69, which governs execution, requires compliance with Neb. Rev. Stat. § 25-
3

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1,807 and the Miscellaneous Claims Act is misplaced. The defendants confuse “execution on a judgment” with presentation of a claim. To “execute” means “to enforce or collect on a money judgment.” Black’s Law Dictionary (8th ed. 2004). A claim, on the other hand, is “the aggregate of operative facts giving rise to a right enforceable by a court” or “a demand for money, property, or a legal remedy to which one asserts a right.” Id. The plaintiff has been awarded a fully enforceable judgment for attorneys’ fees and can execute on that judgment in accordance with Nebraska law. The State Board of Claims has no authority to approve, disapprove, or modify that judgment. See Gates v. Collier, 616 F.2d 1268, 5th Cir. 1980) (“stating “it is now beyond dispute that a federal district court has the authority to order that attorneys' fees be paid out of a state's treasury.”). Also, the State of Nebraska indemnifies its officials and employees “for money damages and reasonable costs incurred as a result of an act or omission occurring in the course and scope of employment of such official or employee.” Neb. Rev. Stat. § 81-8,239.05.
In considering a motion for relief under Fed. R. Civ. P. 69 or 70, “‘[a] district court may take any reasonable action to secure compliance with its orders.’” Association for Retarded Citizens of North Dakota v. Olson,713 F.2d 1384, 1396 (8th Cir. 1983) (quoting Gates v. Collier, 616 F.2d 1268, 1271 (5th Cir.1980) (noting that the Court of Appeals will intervene only when “the district court's response is so inappropriate as to amount to an abuse of discretion”). As an alternative to a finding of contempt, the Eighth Circuit Court of Appeals approves retroactive compensatory awards to reimburse plaintiffs for interest paid on their loans during the time the State does not pay a judgment, as well as increasing the interest on an unpaid judgment. See id. at 1396. The Eighth Circuit views a
4

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post-adjudication order for interest a "reasonable action to secure compliance with [the trial court's] orders. . . ." Id.
Under federal law, post-judgment interest is assessed at “a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment." 28 U.S.C. § 1961(a). The plaintiff has shown that his attorneys are being assessed interest on their operating line of credit at a higher rate. The state “may not successfully hide behind state procedural shields to avoid the consequences of a valid district court judgment effectuating an appropriate 1988 award.” Collins v. Thomas, 649 F.2d 1203, 1206 (5th Cir. 1981). The defendants’ invocation of its lengthy claims procedure should not operate to the financial detriment of the plaintiff’s attorneys. Accordingly, the court finds it appropriate to compensate plaintiff’s counsel for interest payments they incurred as a result of the defendants’ delay in payment. Prospectively, the court finds the rate of interest should be increased to ensure compliance with the court’s order.
IT IS ORDERED that: 1. Plaintiff’s motion for relief under Fed. R. Civ. P. 69 or 70 (Filing No. 212) is granted. 2. Judgment is entered for interest in the amount of $4,839.90 for the period from May 5, 2008, to October 21, 2008, and for $3,017.82 for the period from October 21, 2008, to the date of this order.
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4:04-cv-03231-JFB-TDT Doc # 225 Filed: 02/04/09 Page 6 of 6 - Page ID # 2355 3. Interest at the rate of 14% shall accrue on any outstanding judgment from the
date of this order. DATED this 4th day of February, 2009. BY THE COURT: s/ Joseph F. Bataillon Chief District Judge
6

 
 4:04-cv-03231-JFB-TDT Doc # 228 Filed: 03/04/09 Page 1 of 5 - Page ID # 2359

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH,

)

)

Plaintiff,

)

)

v.

)

)

HAROLD W. CLARKE, et al.,

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)

Defendants.

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4:04CV3231 ORDER

This matter is before the court on the plaintiff’s motion for contempt, Filing No. 205. The court heard oral argument on the motion on February 19, 2009.
Pursuant to earlier orders, defendants were required to implement a “Kosher Equipment and Meal Preparation Process,” to develop and implement protocols to ensure that the plaintiff is provided nutritionally-sufficient kosher meals, and to post prayer schedules. See Filing No. 179, Memorandum and Order; Filing No. 190, Order; Filing No. 187, Stipulation. The plaintiff has presented evidence that the defendants have failed to comply with the court’s order and that, on several occasions, he has found nonkosher foreign materials, including excrement, in his food. See Filing Nos. 206, 207, & 208, Indices of Evidence, Exs. 1-10. He has also shown that the prayer schedule has been posted late or torn down and that his prayers have been interrupted. Id., Ex. 1-D.
In response, defendants have shown that they have made efforts to remedy the problems by implementing an additional protocol that requires the preparation of the meal to be observed and the meal to be personally delivered to El-Tabech. Filing No. 216, Index of Evid., Exs. 1-4. El-Tabech, however, has shown that the defendants’ efforts have been less than successful and that he continues to experience problems with the kosher meals.

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See Filing No. 224, Index of Evidence, Exs. 11, and attached Exs. A - C. The defendants have not disciplined any employees for violations of the protocol. See Filing No. 216, Index of Evidence, Exs. 1-4. Further, the parties acknowledged at oral argument that during the interim between the filing of this motion for contempt and the implementation of the revised kosher protocol, the defendants provided the plaintiff with prepackaged kosher meals and prepackaged kosher food that was satisfactory. At oral argument, the defendants also acknowledged the difficulty of consistent compliance with the court’s order in light of the prospect that “rogue employees” would not follow the protocol.
El-Tabech proposes that this court order the defendants to provide him with prepackaged kosher meals or prepackaged kosher foods available from the kitchen and to compensate him in the amount of $644.39 for kosher food purchases he has made from the canteen since the implementation of the plan. He also seeks an award of reasonable attorney fees and costs for bringing this motion. Defendants contend that the provision of prepackaged kosher meals adds considerable expense, but they have not provided any evidence that quantifies that cost. Also, defendants acknowledge that, at present, ElTabech is the only inmate who is provided kosher meals.
A party seeking civil contempt bears the initial burden of proving, by clear and convincing evidence, that the alleged contemnors violated a court order. Chicago Truck Drivers v. Brotherhood Labor Leasing, 207 F.3d 500, 505 (8th Cir. 2000). At that point, the burden shifts to the contemnor to show an inability to comply. Id. "To show that compliance is presently impossible, the defendant must demonstrate: ‘(1) that they were unable to comply, explaining why categorically and in detail, (2) that their inability to comply was not self-induced, and (3) that they made in good faith all reasonable efforts to
2

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comply.'" United States v. Santee Sioux Tribe of Nebraska, 254 F.3d 728, 736 (8th Cir. 2001).
This court has "the power to punish by fine or imprisonment the disobedience or resistance to its lawful orders." 18 U.S.C. § 401(3). Thus, the court can impose two kinds of civil contempt penalties. See, e.g., Klett v. Pim, 965 F.2d 587, 590 (8th Cir. 1992). "The first is a coercive penalty, such as a fine or jailing, designed to force the offending party to comply with the court's order—the offending party has the power to end the sanction by purging themselves of contempt, i.e., complying with the order." Id. The second is compensatory: the non-offending party is compensated for the damage they incur as a result of the offending party's contempt. Id. “In this circuit, ‘[a]lthough willfulness is not necessarily a prerequisite to an award of fees, it may properly be considered in deciding whether to tax costs and attorney's fees in an action to enforce compliance with an injunction.’” Jakes, Ltd., Inc. v. City of Coates, 356 F.3d 896, 900 (8th Cir. 2004) (quoting Hartman v. Lyng, 884 F.2d 1103, 1107 (8th Cir. 1989) (citation omitted)). An award of reasonable attorney's fees and expenses incurred by a party in seeking to enforce a decree is a form of compensatory relief that is well within a district court's remedial discretion in civil contempt proceedings. Id.
With respect to the posting of the prayer schedule and interruption of prayer, the court finds the defendants have shown reasonable, good faith efforts to comply and have shown that it is not possible to always avoid interruption of El-Tabech’s prayers. With respect to the issue of providing kosher food, although the evidence does not show contumacious or malicious conduct by the defendants, and there is evidence that defendants made some remedial efforts, the court finds that the defendants have not
3

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shown that they have made all reasonable good-faith efforts to comply with court’s order. Accordingly, the court finds that plaintiff’s contempt motion should be granted.
In adjudging the defendants in contempt, the court does not find that the defendants’ actions were contumacious or malicious. The defendants’ failure to consistently adhere to the court’s orders was willful only in the sense that it cannot be characterized as accidental or involuntary. Accordingly, the court finds sanctions in the nature of a fine for noncompliance and compensation for plaintiff’s expenditures are not warranted.
The court finds the plaintiff’s proposed remedy is a reasonable means to ensure compliance with the court’s order, especially in light of the fact that El-Tabech is the only inmate receiving a kosher meal at the present time. Defendants have not shown that the proposal, as applied to only one inmate, would be excessively costly. If additional inmates should require kosher meals, the defendants may move to modify the order. In addition, the court finds it appropriate to compensate the plaintiff for costs he incurred as a result of the defendants’ conduct and to award him reasonable attorney fees in connection with the motion. Accordingly,
IT IS ORDERED: 1. Plaintiff’s motion for contempt (Filing No. 205) is granted. 2. Defendants are adjudged to be in contempt of court. 3. The court’s previous order for injunctive relief on stipulation of the parties (Filing No. 190) is modified as follows: Defendants shall supply the plaintiff Mohamed A. El-Tabech with a nutritionally-sufficient kosher diet that consists of either prepackaged
4

4:04-cv-03231-JFB-TDT Doc # 228 Filed: 03/04/09 Page 5 of 5 - Page ID # 2363 kosher meals or prepackaged kosher foods available in the Tecumseh State Correctional Institution kitchen.
4. The plaintiff is awarded reasonable attorney fees in an amount to be later determined by the court.
5. The plaintiff shall file an application for fees within 14 days of the date of this order; defendants shall have 7 days thereafter in which to respond to the application.
DATED this 4th day of March, 2009. BY THE COURT: s/ Joseph F. Bataillon Chief District Judge
5

 
 Appellate Case: 09-1554 Page: 1 Date Filed: 08/13/2010 Entry ID: 3693251 4:04-cv-03231-JFB-TDT Doc # 257 Filed: 08/13/10 Page 1 of 14 - Page ID # 2539

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1554 No. 09-2691 ___________

Mohamed A. El-Tabech, Plaintiff - Appellee, v.
Harold Clarke, et al., Defendants - Appellants..

* * * * Appeals from the United States * District Court for the * District of Nebraska. * * * ___________

Submitted: April 13, 2010 Filed: August 13, 2010 ___________

Before LOKEN, COLLOTON, and GRUENDER, Circuit Judges. ___________

LOKEN, Circuit Judge.

Mohamed El-Tabech, a Muslim inmate serving consecutive life sentences in Nebraska’s Tecumseh State Correctional Institution (T SCI), commenced this 42 U.S.C. § 1983 action alleging that prison officials were violating his religious rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq. After a bench trial, the district court issued an order requiring defendants topost a copy of his prayer schedule so that TSCI guards are aware of it and directing the parties to negotiate procedures to provide El-Tabech kosher meals. El-Tabech v. Clarke, Mem. & Order dated July 17, 2007 (D. Neb. No. 4:04cv3231). Ten weeks later, granting the parties’ Joint

Appellate Case: 09-1554 Page: 2 Date Filed: 08/13/2010 Entry ID: 3693251 4:04-cv-03231-JFB-TDT Doc # 257 Filed: 08/13/10 Page 2 of 14 - Page ID # 2540
Stipulation, the court or dered defendants to im plement a stipulated “Kosher Equipment and Meal Preparation Process” to provide El-Tabech “a nutritionallysufficient kosher diet, in accordance with Nebraska Department of Co rrections Services policies and procedures,” and to allow “a person with expertise in the area of kosher diet preparation and service” to verify that “the Kosher Process, once implemented . . . meet[s] Defendants’ stated commitment to never serve Mr. ElTabech non-kosher food.” Order dated Oct.5, 2007. In May 2008,the court awarded El-Tabech as prevailing party attorneys’ fees and costs, as authorized by 42 U.S.C. § 1988(b). None of these orders was appealed.
In October 2008, El-Tabech moved for an order under Rules 69(a) and 70 of the Federal Rules of Civil Procedure directing defendants to pay the fee award to ElTabech’s attorneys and increasing the pos t-judgment interest rate payable on that award. On February 4, 2009, the district court granted the motion. In Case No. 091554, the State appeals that order. In August 2008, El-Tabech moved for an order holding defendants in contempt for alleged violations of the injunction orders. On March 4, 2009, the district court grantedEl-Tabech the relief requested on one claim, modifying the stipulated injunction to require that El-Tabech be provided only prepackaged kosher foods. He promptly submitted a supplemental fee request, which the district court granted on June 10, 2009a,warding $73,360.20 in attorneys’ fees and $271.20 in costs for post-judgment work. In Case No. 09-2691, the State appealed both orders. We dismissed the appeal of the contempt order as untimely, leaving only the appeal of the supplemental fee award. We consolidated the two cases on appeal and now reverse both orders and remand for further proceedings.
I. Enforcing the Original Fee Award (No. 09-1554)
Though the Eleventh Amendment bars an award of damages against a State in a § 1983 action, a federal courtmay award attorneys’ fees and other costs against the State under § 1988 a s part of the prospective injunctive relief authorized in the
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landmark decision Ex parte Young, 209 U.S. 123 (1908). See Hutto v. Finney, 437 U.S. 678, 689-98 (1978). A Nebraska statutefirst enacted in 1982 expressly provides that a federal court award of fees and expenses against the State “shall be paid in the manner provided in the State MiscellaneousClaims Act.” Neb. Rev. Stat. § 25-1806. The Miscellaneous Claims Act (MCA) provides that a claimmust be submitted to the State Claims Board and, if approved by the Board, a claim for more than $50,000 “shall be reviewed by the Legislature [at its next session] and an appropriation made therefor if appropriate.” Neb. Rev. Stat. § 81-8,300.
Time sheets submitted in support of El-Tabech’s request for a supplemental fee award reveal that his attorneys began res earching a “legal basis to challenge state statutory restrictions upon enforcing a federal court judgment” in February 2008. On May 5, some two months later, the district court awarded El-Tabech $204,986.28 in attorneys’ fees and costs as the prevailing paryt . In late October,he filed a motion for relief under Rules 69(a) and 70 of the Federal Rules of Civil Procedure. In support, counsel submitted an affidavit averring th at, on October 8, he called Assistant Attorney General Linda Willard and advised that El-Tabech would file a motion to enforce the attorneys’ fee judgment and seek additional compensation for failure to pay because counsel “had not received any response to our prior requests for payment.” After the State Claims Board advised Willard it had not received a claim requesting payment, she prom ptly advised counsel that, under Nebraska law, the judgment could not be paid without approval of a claim by the Claims Board and the Legislature, and that the Departm ent of Correctional Services legal staff would promptly endorse a request for payment. The affidavit further averred that counsel’s law firm operates under a line of credit that exceeds the am ount of the May 5 judgment and accrues interest at the rate of five percent per year.
Contrary to counsel’s affidavit, tim e sheets kept by El-Tabech’s attorneys include the following entry dated June 13, 2008:
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Correspondence from Neb. Dept. of RiskManagement re: filing of claim for payment of judgment for attorney’s fees. Research re: effect of filing of claim for paym ent of attorney’s fee judgm ent. Preparation of memorandum re: same. Preparation of claim for attorney’s fees for State Claim Board.
An entry dated Septem ber 10, 2008, record ed: “Review and revise State Claims Board claim form for attorney’s fees and costs.” Yet no claim was filed. Instead , counsel spent 69.4 hours between September 10 and October 8 preparing a motion to preempt the State’s paymen t statutes and procedures, an exercise they began in February 2008. These facts were not disclosed to the district court until the tim e sheets were filed in March 2009, some six weeks after the court issued its ruling based on defendants’ alleged dilatory conduct.
The district court granted this m otion in the order being appealed. Its description of the motion is significant:
Plaintiff seeks an order directing the defendants to immediately issue a warrant payable to plaintiff’s c ounsel to satisfy the May 5, 2008, judgment and also seeks an increas e in the am ount of post-judgment interest payable [on that]judgment to a rate deemed appropriate to insure the defendants’ compliance with the court’s order.
El-Tabech v. Clarke , Mem. & Order dated Feb. 4, 2009, at p.1. Explaining that “defendants’ invocation of its lengthy cl aims procedure should not operate to the financial detriment” of attorneys awarded fees under § 1988, the court ordered:
1. Plaintiff’s m otion for relief under Fed. R. Ci v. P. 69 or 70 (Filing No. 212) is granted.
2. Judgment is entered for interest in the amount of [$7,857.72] for the period from May 5, 2008 . . . to the date of this order.
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3. Interest at the rate of 14% shall accrue on any outstanding judgment from the date of this order.
Id. at pp. 5-6. Defendants appeal paragraphs 1 and 3 of this order.
A. Paragraph 1. Though the order is not explicit, we infer from the court’s description of the motion that paragraph 1 ordered state officials “to immediately issue a warrant payable to plaintiff’s counsel,” contrary to the mandates of Neb. Rev. Stat. § 25-1806. The order explained: “to the extent that the Nebraska claims process that requires legislative approval and appropriation prior to the State’s paym ent of a federal court judgment conflicts with the purposes underlying § 1983 (to compensate victims and deter future deprivations of federal constitutional rights), it is preempted by federal law.” Id. at p. 3.
The touchstone of preem ption analysis is whether Congress reflected in the federal law a “clear and manifest” intent to displace state law. That intent -
may be explicitly stated in the statute’s language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is pre-emp ted if that law actually conflicts with federal law . . . .
Cipollone v. Liggett Group, Inc. , 505 U.S. 504, 516 (1992) (quotation and citation omitted). In Felder v. Casey, 487 U.S. 131, 138 (1988), the Court held that § 1983 preempted a state notice-of-claim statutebecause it “conflicts in both its purpose and effects with the remedial objectives of § 1983” and therefore “stan[ds] as an obstacle to the accomplishment and execution of thefull purposes and objectives of Congress.” (Quotation omitted.) We applied that principle in pre empting a state statute in Hankins v. Finnel, 964 F.2d 853, 861 (8th Cir.), cert. denied, 506 U.S. 1013 (1992), and the district court applied it in invalidating Neb. Rev. Stat. § 25-1806.
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The first problem with El-Tabech’s contention, as adopted by the district court, is that we are dealing withthe enforcement of a federal court judgment, and Congress expressly declared its intent not to preempt state law in approving Rule 69(a)(1):
A money judgment is enforced by a writ of execution, unless the court directs otherwise. The p rocedure on execution -- and in proceedings supplementary to and in aid of judgment or execution -- m ust accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.
As Congress surely knew, it has long been the general rule that property of a State is exempt from execution unless a statute otherwise provides. 33 C.J.S. Executions § 42 (2009); see Virginia v. West Virginia, 241 U.S. 531, 532 (1916). Nebraska follows that rule. See Sherard v. State, 509 N.W.2d 194, 198 (Neb. 1993); Madison County v. Sch. Dist. No. 2, 27 N.W.2d 172, 177 (Neb. 1947). When Congress has expressly declared the extent of preemption intended, principles of implied conflict preemption may not be applied. Cipollone , 505 U.S. at 517 and 531-32 (Blackm un, J., concurring). Thus, Rule 69(a), rather than supporting paragraph 1 of the district court’s order, is strong evidence the court exceeded its preemption authority.
Even if the conflict preemption principles of Felder apply to the enforcement of a § 1988 attorneys’ fee judgment, we “must inquire more deeply into the intention of Congress and the scope of the pretinent state legislation.” Hankins, 964 F.2d at 861 (quotation omitted). Because the purposes and objectives of § 1983 are broad -“compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law” -- its preemptive sweep is “considerable,” but it is not unlimited. Beeks v. Hundley, 34 F.3d 658, 661 (8th Cir. 1994) (quotation omitted).
Congress enacted § 1988 to encourage en forcement of civil rights laws, like § 1983, through lawsuits by private parties. Missouri v. Jenkins, 491 U.S. 274, 283
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n.6 (1989). Jenkins held that the Eleventh Amendment does not bar enhancing a fee award to compensate for delayed payment. Id. at 281-82. In this case, the fee was enhanced in paragraphs 2 and 3 of the or der, but paragraph 1 went much further, preempting a state statute prescribing procedures for the expenditure of state funds. That is a function at the core ofNebraska’s sovereignty. In Hutto, the Court expressly cautioned that the Eleventh Amendment “may counsel moderation in determining the size of the award or in giving the State time to adjust its budget before paying the full amount of the fee.” 437 U.S. at 692 n.18, citing Edelamn v. Jordan, 415 U.S. 651, 666 n.11 (1974). Here, the issue is preemption -- whether Congress reflected in § 1988 its “clear and manifest” intent to entirely preempt statutes such as Neb. Rev. Stat. § 251806. We conclude the answer is no.
El-Tabech argues that the delay in the payment of an atto rneys’ fee award caused by the State’s statutory paym ent procedures in all cases interferes with the purposes and objectives of § 1988. The contention proves far too much. Uncompensated delays in payment can of course discourage willing attorneys from representing § 1983 plaintiffs. But Jenkins confirmed that courts have ample power to overcome that obstacle by compensating § 1988 judgment creditors for delays in payment. The compensatory purposes of § 1983 do not justify preempting a statute of general applicability with in an area of traditional st ate power when there is no indication the statute “was intended to frustrate § 1983 inmate plaintiffs, or to reduce the deterrent effect of § 1983 judgments.” Beeks, 34 F.3d at 662.1
1If state officials refuse to pay a federal judgm ent rendered in a § 1983 civil rights action, the federal court confronts a far more difficult remedial problem. That was the situation faced in the cases on which El-Tabech primarily relies, Gary W. v. Louisiana, 622 F.2d 804, 806-07 (5th Cir. 1980), cert. denied, 450 U.S. 994 (1981), and Gates v. Collier, 616 F.2d 1268, 1270-71 (5th Cir. 1980). Even in that situation, while an order to pay is clearly appropriate,how to enforce that order if state officials remain recalcitrant and state law bars execution against state assets raises competing issues of supremacy and comity that happily are not present in this case. Cf.Spain v. Mountanos, 690 F.2d 742, 745-47 (9th Cir. 1982).
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El-Tabech argues that the MCA conflictswith § 1988 because it authorizes state officials to m odify or reject a federal judgm ent and because the broad rel ease provision in § 81-8,301 forces successful plaintiffs to release valid claims against the State to obtain payment of their federal judgment. But these contentions are not ripe for review. The only issue presented in thiscase is whether the Nebraska Legislature violated the Suprem acy Clause when it enacted § 25-1806 and the MCA. If the Claims Board or the Legislature should ev er reject a claim submitted to enforce a § 1988 fee award, contrary to a federal court judgment, that specific executive or legislative action would alm ost surely be conflict preem pted. Li kewise, serious Supremacy Clause issues would be raised if a state official ever argued that the MCA’s claims-release provision imbued the State’s payment of a particular federal judgment with greater preclusive force than it would begiven under federal law. But the theoretical possibility of future disputesis not grounds for invalidating the statute. In Hankins, we carefully held that “section1983 preempts the Missouri Incarceration Reimbursement Act as it is applied in this case.” 964 F.2d at 861 (emphasis added).
For these reasons, paragraph 1 of the February 4, 2009, order is reversed.
B. Paragraph 3. Turning to paragraph 3 of the February 4, 2009, order, defendants argue the distri ct court abused its discretion by increasing the postjudgment interest rate on the May 2008 feeaward to a punitive 14% absent clear and convincing evidence of a failu re to comply with the underlying order. “A district court may take any reasonable action to secure compliance with its orders, and only when the district court’s response is so inappropriate as to am ount to an abuse of discretion will the Court ofAppeals intervene.” Ass’n for Retarded Citizens v. Olson, 713 F.2d 1384, 1396 (8th Cir. 1983). Thus, the district court’s authority to impose this form of compensatory remedy is clear. However, wefind two flaws in the court’s exercise of its discretion.
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First, in Olson, we affirmed t he district court’s award of 14% prejudgment interest on an interim attorneys’ fee award the State had neither appealed nor paid. We concluded that this award, entered in lieu of holding state officials in contempt, was a reasonable exercise of the co urt’s discretion “to secure com pliance with its orders.” 713 F.2d at 1396. Here, on the other ha nd, (i) most of the delay prior to February 4, 2009, was attri butable to El-Tabech’s refusal to file a claim under the MCA, and (ii) the district court imposed a punitive 14% prospective interest rate to coerce the State into abandoning a statutory payment procedure that is not preempted by § 1983 or § 1988. In these circumstances, paragraph 3 cannot be affirmed.
Second, the prejudgment interest upheld in Olson is “considered part of the compensation due plaintiff” and may be awarded by the trial court after considering “a number of factors.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 175-76 (1989). Here, the issue is post-judgment interest. Congress has declared the post-judgment rate that adequately compensates federal judgment creditors:
Interest shall be allowed on a ny money judgment in a civil case recovered in a district court. . . . Such interest shall be calculated from the date of the entry of th e judgment, at a rate equal to the weekly average 1-year constant mat urity Treasury yield, as published by the Board of Governors of the Federa l Reserve Syst em, for the calendar week preceding the date of the judgment. 28 U.S.C. § 1961(a).2
In enacting this statute, Congress determined that adequate compensation for the delay in paying a federal judgment is the interest a conservativeinvestor would have earned, not the interest paid by a judgm ent creditor who borrowed funds while awaiting payment. Though we do not preclude the psosibility that extraordinary circumstances
2“The phrase ‘any money judgment’ in section 1961(a) is construed as including a judgment awarding attorneys’ fees.” Jenkins v. Missouri, 931 F.2d 1273, 1275 (8th Cir.), cert. denied , 502 U.S. 925 (1991); see Wright, Miller & Cooper, Federal Practice & Procedure: Jurisd. § 3983, at 455 (3d ed. 2008).
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might justify a court increasing the rate prescribed in § 1961(a) to m ake its § 1988 award adequately compensatory under Jenkins and Olson, the district court abused its discretion in this case by departing from the § 1961(a) rate where no such circumstances were shown.
For these reasons, paragraph 3 of the order was an abuse of the district court’s remedial discretion. We remand for determination of an appropriate compensatory post-judgment interest rate, which is presumptively the § 1961(a) rate.
II. The Supplemental Attorneys’ Fee Award (No. 09-2691)
After the district court granted the contempt motion in part, El-Tabech moved for a supplemental award of $73,360.20 in attorneys’ fees. In support, he submitted detailed time sheets showing that his attorneys deducted $15,360.60 for time spent on unsuccessful issues. The district c ourt granted the entire am ount requested, concluding that El-Tabech demonstrated that he only sought compensation for “the issue on which he was successful -- the kosher diet issue” -- and that the hourly rate and time spent on enforcing the previous f ee award, the contempt motion, and the present fee application were “reasonable in light of the defendants’ conduct.” Defendants appeal this award, arguing thatEl-Tabech did not fully deduct time spent on unsuccessful or non-compensable issues, that his attorneys spent an unreasonable amount of time on compensable aspects of the case, and that the requested fee was not proportional to the relief obtained. We agree.
In § 1983 actions, “the court, in its discretion, may allow the prevailing party, other than the United States, a r easonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). When plaintiff initially prevails and obtains injunctive relief in “institutional reform” litigation, some types of post-judgment activities are generally compensable as “necessary adjuncts to the initial litigation, whereas other types of activities are m ore like a new, separate la wsuit and require a fee determ ination
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independent of the underlying case.” Jenkins v. Missouri, 127 F.3d 709, 716-17 (8th Cir. 1997). Reasonable fees for defe nding the injunction from attack are compensable, but “[a] prevailing party who aggressively seeks a greater victory and fails is entitled to a proportoi nally lesser fee award thana prevailing party who merely defends [his] victory, even if the defense is less than completely successful.” Ass’n for Retarded Citizens v. Schafer, 83 F.3d 1008, 1012 (8thCir.), cert. denied, 519 U.S. 993 (1996). Work that is m ore like a new, separate lawsu it “requires a fresh determination of entitlement to fees.” Cody v. Hillard, 304 F.3d 767, 773 (8th Cir. 2002). In all events, “hours that are excessive, redundant, or otherwise unnecessary” must be excluded. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
El-Tabech divided his supplem ental application into categories of postjudgment work. He requested and wasawarded $15,780.60 for time spent enforcing the original attorneys’ fee award; $14,837.40 for time spent monitoring defendants’ compliance with the origin al court order; $32,019.60 for tim e spent briefing and arguing the contempt motion; and $10,722.60 for time spent on the fee requests. ElTabech “bears the burden of establishing etnitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437.
A. Enforcing the original attorney fee aw ard. As we have explained, the time sheets belatedly submitted by El-Tabech’s attorneys reveal lack of candor and excessive time spent in submitting his motion to enforce the originalfee award. Even more to the point, the motion was entirely unsuccessful. Though defendants did not appeal paragraph 2, the district court will need to reconsider paragraph 2 in determining on remand what compensatory post-judgment interest rate is appropriate. Therefore, the award of fees for time s pent on the issues resolved in Part I of this opinion is reversed.
B. Post-Judgment Monitoring. El-Tabech’s attorneys recorded 108.7 hours monitoring defendants’ compliance with the Kosher Process, requesting $14,837.40
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for that time. We ruled in Jenkins that monitoring compliance with court orders and enforcing the remedy “are generally compensable as part of the underlying case.” 127 F.3d at 717. However, we noted in Cody, 304 F.3d at 777, that Congress in the Prison Litigation Reform Act (PLRA) explicitly disallowed an award of fees for postjudgment monitoring by providing that a fee m ay only be awarded if “the fee was directly and reasonably incurred inenforcing the relief ordered for the violation.” 42 U.S.C. § 1997e(d)(1)(B)(ii) (emphasis added).3 As the district court did not apply the PLRA limitation, this part of the award cannot be affirmed. In addition, El-Tabech’s attorneys devoted 72 hours to m onitoring all aspects of TSCI’s food quality and service, whereas the injunction only ordered defendants to implement the stipulated Kosher Process to provide El-Tabech “a nutritionally-sufficient kosher diet.” Thus, much of the monitoring was work on a new, unsuccessful lawsuit.
C. Motion for contempt. The district court awarded $32,019.60 for work performed on the m otion for contem pt. The court partially granted the mo tion because defendants “have not shown that they have made all reasonable good-faith efforts to comply with court’s order” to provide kosher food.
On March 5, 2008, El-Tabech’s atto rneys arranged for and accom panied a rabbi’s tour of TSCI to evaluate the defendants’ compliance. Rabbi Jonathan Gross reported in a letter to counsel“that the food prepared as perscribed by the protocol and based on my personal observations is kosher according to the highest standards,” and that “prison kitchen staff is being needlessly stringent.” This was compensable time spent in enforcing the injunction. Howevre, Rabbi Gross reported that defendants had
3The PLRA also provides that no injunctoin shall be granted“in any civil action with respect to prison conditions . . . unlessthe court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the voi lation of the Federal right.” 18 U.S.C. § 3626(a)(1); see Castillo v. Cameron County, 238 F.3d 339, 351-55 (5th Cir. 2001).
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implemented a Kosher Process to provideEl-Tabech a nutritionally-sufficient kosher diet.
On April 15, 2008, El-Tabech discovered feces wrapped in plastic in a vegan entree prepared and delivered by TSCI staff. He filed an emergency grievance and advised his attorneys. TSCI suspended service of staff-prepared kosher meals while the incident was investigated, serving only kosher items that were factory sealed or still in their “own skin.” On May 13, TSCI modified Food Service Protocol 1.02 to reduce staff access to kosher meals during preparation and delivery and to provide “a clear delineation of responsibilities and oversight to prevent a similar incident.” On May 15, El-Tabech was first served an entree under the m odified Protocol. His August 6, 2008, affidavit submitted in support of the contempt motion relates:
I immediately felt nauseous and nearly vomited. Since May 15, 2008, I have refused to accept the vegan entrees, and continued refusing any food handled directly by TSCI staff that is not prepackaged or still in its skin.
At this point, El-Tabech’s attorneys hadall the information needed to obtain the relief granted by the court’s March 4, 2009, order -- m odifying the injunction to require defendants to provide only prepackaged kosher foods. Yet El-Tabech did not file the motion for contempt until late August. In the interim, the time sheets record many hours revising the motion papers. In total, El-Tabech’s attorneys recorded 141.5 hours drafting the brief in support of this motion, 67.7 hours drafting the reply brief, and 23.8 hours preparing for and attending the motion hearing. Though we review the amount awarded for compensable post-judgment work under a deferential abuse-ofdiscretion standard, see Jenkins, 127 F.3d at 716-19, this seem s to us like an unreasonable and unnecessary amount of time to spend on the successful portion of the motion and may include hours spent on issues other than whether El-Tabech was reasonably demanding prepackaged foods. Thedistrict court should again review this portion of the award on remand.
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In determining whether a fee award is reasonable and necessary, the key component is the “exclusion of ‘hours th at are excessive, redundant, or otherwise unnecessary.’” Schafer, 83 F.3d at 1012, quoting Hensley, 461 U.S. at 434. The degree of plaintiff’s success is “the most critical factor” in selecting a reasonable fee award. Warnock v. Archer, 397 F.3d 1024, 1026 (8th Cir. 2005), quoting Farrar v. Hobby, 506 U.S. 103, 114-15 (1992). Here, it appears that “the com plexity of the issues [on which El-Tabech was successful ] simply did not warrant the requested amount of ‘lawyering.’” Quigley v. Winter, 598 F.3d 938, 958 (8th Cir. 2010).
D. The fee applications. The district court awarded El-Tabech $10,722.60 for 77.7 hours spent preparing the reply brief in support of the original m otion for attorney’s fees and the motion for supplemental attorneys’ fees. Time spent preparing fee applications is generally compensable,but here the time was excessive to prepare an application for the portions of the requests that were properly compensable.
III. Conclusion
When a fee award is not upheld, the a ppropriate disposition of the appeal is usually to remand. See Quigley, 598 F.3d at 958. That is appropriate in this case, particularly because other fee and fee p ayment issues may not be entirely resolved. Accordingly, in both cases, we remand to the district court for further proceedings not inconsistent with this opinion.
______________________________
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH Plaintiff,
v. HAROLD W. CLARKE, et al.,
Defendants.

)

)

4:04CV3231

)

)

)

MEMORANDUM AND ORDER

)

)

)

)

)

This matter is before the court on remand from the United States Court of Appeals for the Eighth Circuit (“Eighth Circuit”) and on the plaintiff’s motion for attorneys’ fees and costs after remand, Filing No. 270, and amended motion for attorneys’ fees and costs after remand, Filing No. 278.
The amended motion renders the original motion moot. The plaintiff represents that the defendants have no objection to the filing of the amended motion, but they preserve their objections to the contents. Filing No. 278, Amended Motion at 5. Because the parties agree that no further briefing is necessary, the court considers the objections raised in connection with the original application are reasserted with respect to the amended application. See id.; Filing No. 275, Brief in Opposition.
In consolidated appeals filed by the defendants, the Eighth Circuit dismissed, as untimely, the defendants’ appeal of this court’s order finding the defendants in contempt. Filing No. 257, El-Tabech v. Clarke, Nos. 09-1554/2691, slip op. at 2 (8th Cir. August 13, 2010). However, the Eighth Circuit reversed the imposition of an enhanced interest rate as a remedy for the contempt. Id. at 8. The Eighth Circuit found that, although “extraordinary circumstances might justify a court increasing the rate prescribed in

§ 1961(a) to make its § 1988 award adequately compensatory,” no such extraordinary circumstances justified departing from the [28 U.S.C.] § 1961(a) rate in this case. Id. at 10. The court’s assessment of attorneys’ fees in connection with the post-trial motions at issue were also reversed and the action was remanded to this court for proceedings consistent with the Eighth Circuit’s opinion. See id. at 14. The Eighth Circuit found that plaintiff’s counsel spent what “seem[ed] . . . like an unreasonable and unnecessary amount of time to spend on the successful portion of the motion [for contempt]” and instructed this court to review that portion of the award. Id. at 13. The Eighth Circuit also found that “it appears that ‘the complexity of the issues [on which El-Tabech was successful] simply did not warrant the requested amount of ‘lawyering.’” Id. at 14 (quoting Quigley v. Winter, 598 F.3d 938, 958 (8th Cir. 2010)). The court also directed this court to address the issue of post-judgment interest, stating that the presumptive rate was set under 28 U.S.C. § 1961. Id. at 10.
In his original motion for attorneys’ fees on remand, the plaintiff sought $106,835.70 in attorneys’ fees and $935.40 in recoverable costs. Filing No. 272, Plaintiff’s Brief at 11. He sought recovery for work performed in connection with: (1) collection under the State Miscellaneous Claims Act; (2) the initial and supplemental fee applications; (3) the enforcement of kosher protocols; (4) the contempt proceedings; (5) the motion to dismiss the appeal of the contempt order; (6) the opposition to defendants’ motion to stay execution on the judgment; (7) responding to the defendants’ appeal of the supplemental attorneys’ fees award and (8) the fee application on remand. Filing No. 276, plaintiff’s reply brief at 1. In response, defendants argued that an award of $28,259.59 for attorneys’ fees would be appropriate, arguing that the requested fees represented “excessive lawyering,”
2

were not justified in light of the plaintiff’s degree of success, and were inconsisent with the Eighth Circuit’s order on remand. See Filing No. 275, Brief in Opposition at 8, 12-13, 1834. The defendants have no objection to the plaintiff’s recovery of costs in the amount of $935.40. Id. at 77.
The plaintiff has now filed an amended motion for attorneys’ fees and costs, conceding that the recovery of certain fees he sought in the original application would not be consistent with the mandate of the Court of Appeals on remand. The plaintiff now seeks fees in the amount of $73,209.67. In accordance with the Eighth Circuit’s opinion, the plaintiff has deducted 72 hours from the fees requested for enforcement of the kosher protocol as unrelated to the implementation of the protocol, thus reducing the amount of fees sought from $14,837.40 to $5,064.60. Further, consistent with the Eighth Circuit’s finding that the plaintiff “had all the information needed to obtain the relief granted by the court’s March 4, 2009, order -- modifying the injunction to require defendants to provide only prepackaged kosher foods” as of May 2008, the plaintiff now seeks compensation only for work on the contempt motion that was performed before May 24, 2008, reducing the requested fees in connection with that work from $32,019.60 to $21,403.80. Contending that the application of the foregoing produces a 43% reduction in attorneys’ fees (from the approximately $46,000 originally awarded to approximately $26,000), the plaintiff then applied that percentage to the fees originally sought for work in connection with the initial and supplemental attorneys’ fees motions and the appeal of the supplemental fees award, resulting in a request for fees of $23,174.02 in connection with those motions. Because the Eighth Circuit determined that the fees sought for the preparation and briefing of the plaintiff’s initial and supplemental fee applications should
3

be reduced to reflect the degree of success that the plaintiff obtained in connection with the post-trial motions, the plaintiff has reduced the fees sought for work on those motions by 43%, from $10,722.60 to $6,058.27. Similarly, the requested fees for work defending against the defendants’ appeal have been reduced from $30,323.00 to $17,120.37. He argues that counsel’s fees for work in connection with the motion to dismiss the defendants’ appeal of the contempt order ($7,934.00); in opposing the defendants’ motion to stay execution of the judgment ($5,035.50); on filing a claim under the Miscellaneous Claims Act ($1.093.60); and in preparing the fee application on remand ($8,568.75) are fully compensable since the plaintiff prevailed on those issues.
The court agrees with the plaintiff’s methodology for implementation of the Eighth Circuit’s mandate. The court has reviewed the parties’ submissions and finds that an award of $73,209.67 is appropriate. The findings made by the Eighth Circuit result in an effective reduction of 43% for the degree of success obtained. The plaintiff’s methodology and calculations comport with the Eighth Circuit’s remand order. Time spent on unsuccessful claims has been subtracted from the fees requested. There is no need for any further reduction in the amount of the award.
The court has reviewed the time sheets and billing descriptions submitted by the plaintiff and finds them sufficiently detailed. The time records show that the plaintiff seeks remuneration only for work that directly relates to the claims upheld by the Eighth Circuit. Further, based on its familiarity with the litigation, the court finds there was little or no “excessive lawyering” by the plaintiff’s counsel. This case involved important Constitutional issues and was vigorously defended. The court also finds that, once adjusted by 43%, the
4

hours expended on the post-judgment motions are reasonable in view of the complexity of the issues, the force of the defendants’ opposition and the quality of the attorneys’ work.
Under the PLRA, the recoverable hourly rate is capped at $138.00. A reasonable hourly rate would exceed that amount for each of El-Tabech’s attorneys. El-Tabech was represented by an AV rated law firm and all of his attorneys are highly qualified and distinguished lawyers with excellent reputations. Charges greatly in excess of $128.00 are reasonable for civil rights cases in this legal market. Based on the court’s familiarity with rates for legal services in this community, the court finds that $138.00 per hour is a reasonable hourly rate. The fees and costs are the product of a reasonable number of hours multiplied by a reasonable hourly rate and are fair, reasonable and customary within the Lincoln, Nebraska, legal market for the type of work provided to El-Tabech.
An award of fees is ordinarily made to the plaintiff, however, the court has been informed that the plaintiff in this case has passed away. Accordingly, the fees should be paid to plaintiff’s counsel.
IT IS ORDERED: 1. Plaintiff’s motion for attorneys’ fees and costs (Filing No. 270) is denied as moot. 2. Plaintiff’s amended motion for attorneys’ fees and costs (Filing No. 278) is granted. 3. Attorneys’ fees in the amount of $73,209.67, plus interest at the legal rate under 28 U.S.C. § 1961 from and after this date, are assessed in favor of plaintiff and against defendants, payable to plaintiff’s counsel.
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3. Costs in the amount of $935.40, plus interest at the legal rate under 28 U.S.C. § 1961 from and after this date, are taxed in favor of a plaintiff and against defendants, payable to plaintiff’s counsel.
4. A judgment in conformity with this memorandum and order will be entered this date.
DATED this 20th day of May, 2011. BY THE COURT:
s/ Joseph F. Bataillon Chief District Judge
*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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 4:04-cv-03231-JFB-TDT Doc # 110 Filed: 06/09/06 Page 1 of 29 - Page ID # 777

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH,

)

)

Plaintiff,

)

)

v.

)

)

HAROLD W. CLARKE, former Director of )

Nebraska Department of Correctional

)

Services, ROBERT P. HOUSTON, , Director )

of Nebraska Department of Correctional

)

Services, MIKE KENNEY, Warden of

)

Nebraska State Penitentiary, FRANK

)

HOPKINS, Assistant Director of Institutions )

for the Nebraska Department of Correctional )

Services, FRANCIS BRITTEN, Warden of )

Tecumseh State Correctional Institution,

)

RANDY COLE, Medical Director of

)

Nebraska Department of Correctional

)

Services, DOUGLAS SELL, Director of the )

Mental Health program at Tecumseh State )

Correctional Institution, MARY

)

CARMICHAEL, Contract Administrator for )

the Nebraska Department of Correctional

)

Services, and STEVE VODICKA,

)

Safety/Sanitation Coordinator for the

)

Nebraska Department of Correctional

)

Services, all in their individual capacities and )

official capacities.

)

)

Defendants.

)

Case No.: 4:04CV3231 AMENDED COMPLAINT

PRELIMINARY STATEMENT

1. The Complaint in this matter was filed pro se on June 28, 2004 by Mohamed A. El-

Tabech, an inmate incarcerated at a Nebraska Department of Correctional Services

(“NDCS”) facility, the Tecumseh State Correctional Institution (“TSCI”) and previously

incarcerated at the Nebraska State Penitentiary (“NSP”). Plaintiff has been incarcerated

at TSCI continuously since this matter began.

4:04-cv-03231-JFB-TDT Doc # 110 Filed: 06/09/06 Page 2 of 29 - Page ID # 778
2. NSP is a facility housing maximum, medium, and minimum security prisoners. 3. TSCI is a facility housing maximum, medium, and minimum security prisoners. TSCI
also houses inmates on Death Row. 4. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1988, and 42 U.S.C.
§ 2000cc et seq., for violations of Plaintiff’s rights guaranteed under the Religious Land Use and Institutionalized Persons Act of 2000 (the “RLUIPA”) and under the United States Constitution. 5. Plaintiff seeks injunctive and declaratory relief against Defendants acting in their official capacities and monetary damages against Defendants acting in their individual capacities. 6. Plaintiff seeks to end the substantial burdens placed on his religious exercise by Defendants, seeks to end the dangerous and inadequate conditions of confinement to which he is subjected on a daily basis, and seeks to vindicate his rights to meaningful classification decisions.
PARTIES 7. Plaintiff Mohamed A. El-Tabech, prisoner number 36752, is a prisoner in the custody of
the NDCS, and is currently incarcerated at the Tecumseh State Correctional Institution (“TSCI”). Plaintiff is a strict adherent to the Orthodox Moslem faith. 8. Defendant Harold Clarke was the Director of the NDCS. As Director, Clarke was directly responsible for and involved in NDCS’ daily functioning and administration. Clarke is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Clarke. 9. Defendant Robert P. Houston is the Director of the NDCS. As Director, Houston is
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directly responsible for and involved in NDCS’ daily functioning and administration. Houston is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Houston. 10. Defendant Frank Hopkins is the Assistant Director, Institutions of the NDCS. As Assistant Director, Hopkins is directly responsible for and involved in the daily functioning and administration of both NSP and TSCI and acts in the place of the Director in many instances. Hopkins is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Hopkins. 11. Defendant Mike Kenney was, at all relevant times, Warden of the Nebraska State Penitentiary (“NSP”). As Warden, Kenney was directly responsible for and involved in the daily functioning and administration of the NSP. Kenney is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Kenney. 12. Defendant Francis Britten, was and is, at all relevant times, Warden of TSCI. As Warden, Britten is directly responsible for and involved in the daily functioning and administration of TSCI. Britten is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Britten. 13. Defendant Randy Cole was and is, at all relevant times, the Medical Director of NDCS. As Medical Director, Cole is directly responsible for and involved in the daily functioning and administration of medical services to prisoners incarcerated in the NDCS. Cole is a
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person within the meaning 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Cole. 14. Defendant Douglas Sell was and is, at all relevant times, head of the Mental Health program at TSCI. As head of the Mental Health program at TSCI, Sell is directly responsible for and involved in the daily functioning and administration of all mental health services at TSCI, including making classification recommendations and mental health evaluations. Sell is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Sell. 15. Defendant Mary Carmichael is and was, at all relevant times, Contract Monitor at TSCI. As Contract Monitor, Carmichael is directly responsible for and involved in the daily functioning and administration of contracted services, including the contract with TSCI food service provider, Aramark. Carmichael is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Carmichael. 16. Defendant Steve Vodicka is and was, at all relevant times, Safety/Sanitations Coordinator at TSCI and NSP. As Safety/Sanitation Coordinator, Vodicka is directly responsible for and involved in the daily functioning and administration of all safety and sanitation needs at NSP and TSCI, including pest control, fire alarms, and other environmental matters. Vodicka is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law with respect to all acts or omissions attributed to Vodicka. 17. At all relevant times, Defendants were “persons” under 42 U.S.C. § 1983, and acting under color of state law and pursuant to the official and customary statutes, regulations,
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duties, and/or policies and practices enacted or followed by the governmental entities for which the individual Defendants serve or served as agents, representatives, members, or employees. 18. Defendants are sued in their official capacities insofar as Plaintiff seeks prospective and permanent injunctive relief. For all other claims seeking money damages, Defendants are sued in their individual capacities.
JURISDICTION AND VENUE 19. This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of state
law of rights, privileges and immunities secured by the Constitution of the United States and other federal statutes. The rights sought to be redressed are guaranteed by the First, Eighth and Fourteenth Amendments to the United States Constitution. This Court has federal question jurisdiction over this controversy under 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 2000cc et seq. This Court has jurisdiction over the request for declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 20. Venue is proper in the District of Nebraska under 28 U.S.C.§ 1391. The Plaintiff is incarcerated in this District, the events giving rise to this action occurred in this District, and some of the Defendants work in this District.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 21. Pursuant to the grievance procedure stated in Administrative Regulation 217.02, Plaintiff
has exhausted all administrative remedies available to him on the matters alleged in this Amended Complaint. 22. Plaintiff has submitted all necessary grievances and appeals in the proper format,
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specifically, Plaintiff has submitted an Informal Grievance, a Step One Grievance, and a Step Two Grievance for each and every grievable issue alleged in this Amended Complaint. 23. No relief has been granted to Plaintiff through the required NDCS grievance procedure regarding any of the matters alleged in this Amended Complaint.
FACTUAL ALLEGATIONS 24. Plaintiff has been incarcerated in NDCS continuously since 1985. 25. Plaintiff was incarcerated at NSP from 1985 until he was transferred to TSCI on July 18,
2002. 26. On April 25, 2001, Plaintiff attempted to escape from NSP. As a result, Plaintiff was
transferred from the general population at NSP to the Control Unit (“CU”) at NSP. 27. On July 18, 2002, Plaintiff was transferred to TSCI, and was immediately placed in the
Special Management Unit (“SMU”) at TSCI, and been placed on Intensive Management (“IM”) status. 28. Both the CU and the SMU are segregation units. 29. Plaintiff has never been in the general population at TSCI, and instead has been continuously incarcerated since July 18, 2002 in the SMU, on IM status. 30. Taking together the time spent in the CU and the SMU, Plaintiff has been in continuous segregation for over five years, since April 25, 2001. Plaintiff’s Religious Convictions–Kosher Diet 31. Plaintiff was born and raised in Beirut, Lebanon and resided there until he was approximately 25 years old.
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32. Plaintiff was born into, and has always been a sincere adherent to, the Orthodox Moslem faith. As part of the practice of his faith, Plaintiff sincerely adheres to and acknowledges all prior prophets, messages, and holy books.
33. Also as part of the practice of his faith, Plaintiff sincerely believes that he is required to eat and maintain only a kosher diet.
34. In accordance with established Orthodox Moslem tradition and practice, Plaintiff believes that maintaining a kosher diet is a fundamental tenet of the Orthodox Moslem faith and that the primary purpose of observing kosher principles and maintaining a kosher diet is to conform to the divine will of God as expressed in the Holy Qur’an.
35. Plaintiff subscribes to established Orthodox Moslem teaching that the Qur’an teaches that the slightest morsel of forbidden food taints not only the body, but the soul itself.
36. Maintaining a kosher diet includes adherence to specific rules. These rules set forth which food may be consumed and the manner of preparation and service of permitted foods.
37. Maintaining a kosher diet requires strict adherence to the rules regarding which foods may be consumed. Foods that may be eaten include all non-animal products such as fruits and vegetables, meat from animals that chew the cud and have cloven hooves (e.g. cows and sheep), certain types of poultry (e.g., chicken, turkey, and duck), and fish that have fins and scales. Dairy products are permitted, but meat and dairy must never be mixed together.
38. Maintaining a kosher diet also requires that the adherent prepare food for consumption in a particular manner. For example, kosher food is no longer considered kosher when the
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food is prepared in containers that are non-kosher. To keep kosher food untainted, the containers, pots and pans, utensils, and all other implements used in the preparation must not come into contact or have had contact with non-kosher food. The food must also be served on plates and bowls and eaten with utensils that have not had contact with nonkosher food. 39. In short, the three essential qualities of a kosher diet are: A. The food to be consumed must be derived from a religiously-acceptable source; B. The food to be consumed must be prepared and served in a religiously-acceptable
way; and C. Meat and dairy must not be mixed together. 47. Kosher food can be made available to Plaintiff through several possible means, including, but not limited to, the following: (1) preparing food on site with proper kitchen facilities under the direction of a qualified kosher food supervisor; (2) obtaining pre-packaged meals from kosher food vendors around the country (e.g., sealed airline dinners or shelf stable packaging ); or (3) obtaining acceptable kosher products through retail outlets and kosher food purveyors. In addition, the use of disposable plastic or paper good and utensils is an easy, cost-effective and religiously-acceptable means of providing kosher food in an institutional environment. Defendant Clarke, Houston, Hopkins, Britten, and Carmichael’s Refusal to Provide Kosher Meals to Plaintiff 48. The NDCS does not allow for a kosher meal option to prisoners incarcerated in its facilities.
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49. Instead, the NDCS policy and practice is set forth in Administrative Regulation 108.01(II)(H) and provides only that “written policy, procedure and practice of each facility provides adequate support for inmates whose religious beliefs require adherence to special dietary laws. . . . Any inmate may abstain from religiously prohibited foods without jeopardizing that nutritional adequacy.”
50. The policy set forth in Administrative Regulation 108.01(II)(H) does not qualify as kosher for purposes of Plaintiff’s sincerely-held religious beliefs.
51. Plaintiff has repeatedly informed Defendants, through the filing of grievances and through correspondence both to Defendants and to Religious Coordinators, that his sincerely held religious beliefs require that he maintain a kosher diet.
52. Defendants have responded repeatedly that they will not provide Plaintiff with a kosher diet.
53. Although the NDCS does accommodate the religious needs of some prisoners in its facilities by refraining from the use of pork or pork by-products in food, the NDCS refuses to provide kosher meals for Plaintiff.
54. Furthermore, the NDCS, including TSCI, refuses to provide kosher meals for Plaintiff even where Administrative Regulation 108.01(II)(A) provides that “[d]ietary allowances, as adjusted for . . . religious foods of conscience and activity, should meet or exceed the recommended dietary allowances published by the National Academy of Sciences.”
55. Upon information and belief, Plaintiff does not receive the recommended dietary allowances and is forced to repeatedly skip meals as a result of Defendant Clarke, Houston, Hopkins, Britten, and Carmichael’s failure to provide Plaintiff with a kosher
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diet. 56. Upon information and belief, federal prisons in Nebraska’s region (North Central)
operated by the Bureau of Prisons provide kosher meals to prisoners who seek such meals as a result of their sincerely-held religious beliefs. 57. Plaintiff has exhausted all administrative remedies by filing all required grievances pursuant to Administrative Regulation 217.02. 58. Defendants Clarke, Houston, Hopkins, Britten, and Carmichael have never identified any compelling government interest for denying Plaintiff kosher meals or explained how the failure to provide kosher meals is the least restrictive means of advancing any such compelling government interest. 59. On information and belief, the NDCS receives federal financial assistance. Plaintiff’s Religious Convictions–Cleanliness 60. As part of the practice of his faith, Plaintiff sincerely believes that he is required to maintain the highest level of cleanliness. 61. In accordance with established Orthodox Moslem tradition and practice, Plaintiff believes that he is required to bathe on a daily basis, to keep his hair clean and cut short, to wash his hands and arms up to the elbows before praying, among other things as expressed in the Holy Qur’an. 62. Failure to maintain the highest level of cleanliness means that Plaintiff is unclean both physically and spiritually and interferes with Plaintiff’s ability to maintain purity within the tenets of his faith. 63. Defendants Clarke, Houston, Hopkins, and Britten do not permit Plaintiff to shower more
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than three times per week, violating his sincerely-held religious beliefs to bathe daily and maintain the highest level of cleanliness. 64. Plaintiff has exhausted all administrative remedies by filing all required grievances pursuant to Administrative Regulation 217.02. 65. Defendants Clarke, Houston, Hopkins, and Britten have never identified any compelling government interest for denying Plaintiff the opportunity to bathe on a daily basis before prayers, and have never explained how the failure to provide the opportunity to bathe on a daily basis is the least restrictive means of advancing any such compelling government interest. 66. On information and belief, the NDCS receives federal financial assistance. Defendants’ Religious Intolerance and Prevention of Plaintiff’s Religious Practices 67. Plaintiff has been the target of religious discrimination and intolerance since nearly the beginning of his incarceration in SMU. 68. Plaintiff was verbally assaulted by a guard utilizing the SMU’s intercom system, with the guard specifically taking aim at Plaintiff’s religious beliefs, practices, and family members. 69. Defendants Clarke and Britten refused to take any action regarding this incident until compelled to do by then-Governor Mike Johanns, and only after Plaintiff had exhausted his administrative remedies and contacted a national Moslem organization. 70. Plaintiff has been denied the ability to pray in accordance with the prayer schedule, and in accordance with his sincerely held religious beliefs. 71. Defendants Clarke and Britten have never identified any compelling government interest
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for denying Plaintiff any redress for the verbal assault on his religious beliefs or the refusal to permit Plaintiff the ability to adhere to a prayer schedule, and have never explained how the failure to provide such things is the least restrictive means of advancing any such compelling government interest. 72. On information and belief, the NDCS receives federal financial assistance. The Control Unit at NSP 73. Beginning on April 25, 2001, Plaintiff was placed in the CU at the NSP. Plaintiff remained in the CU, cell number B4, continuously until his transfer to TSCI on July 18, 2002. 74. The CU houses prisoners in total isolation, with no exterior windows and therefore no sunlight. 75. Plaintiff’s cell in the CU consisted of a sink, toilet, and a bed made from a concrete slab. 76. Plaintiff’s cell number B4 did not have a chair, table, mirror, trash receptacle, drinking cup, or exercise equipment of any kind. 77. Cell number B4 was infested with rodents, including both mice and rats, spiders, ants, and other insects on a regular basis. 78. Throughout Plaintiff’s time in the CU, he repeatedly suffered bites and was awakened many nights with the sound of mice and rats in his cell and spiders crawling on his face. 79. The CU was, at all relevant times, under the direct control and supervision of Defendants Kenney and Clarke. Defendants Kenney and Clarke supervised and controlled all policies, customs, patterns and practices of the CU at all relevant times.
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The Special Management Unit at TSCI 80. Plaintiff is currently confined in the SMU at TSCI. The SMU houses prisoners who are
on administrative segregation and death row and consists of two adjacent buildings. One building contains galleries A, B, and C, and the other building contains galleries D, E, and F. Plaintiff has been confined in gallery C, cell four since arriving at TSCI. 81. Galleries C and D consist of a single level on the ground floor and contain 16 cells in each gallery, or 32 cells total. Galleries C and D house prisoners on IM status. 82. Galleries A, B, E and F consist of upper and lower tiers, each containing 20 cells. Death row is housed on the upper level of Gallery A. 83. Unlike prisoners housed in Gallery C, prisoners housed in Galleries A, B, E and F are permitted to walk freely to shower, to the yard area for recreation, and to perform any job assignments. 84. Unlike prisoners housed in Gallery C, death row prisoners are permitted a “day room” for socializing, are permitted to eat meals together, and are permitted to purchase soft drinks from a machine. 85. All SMU cells contain a fire alarm and a pressurized water sprinkler which can be triggered by fire or by tampering, often resulting in flooding of the SMU. 86. The fire alarm system in SMU is a centralized system whereby if a fire alarm is triggered for any reason, it is heard by every prisoner housed in SMU. 87. The SMU was and is, at all relevant times, under the direct control and supervision of Defendants Clarke, Houston, Hopkins, and Britten. Defendants Clarke, Houston, Hopkins, and Britten supervise and control all policies, customs, patterns and practices of
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the SMU at all relevant times. Description of Plaintiff’s SMU Cell, Number C4 88. Plaintiff has been incarcerated in the same cell since arriving at TSCI on July 18, 2002,
cell C4. 89. Cell number C4 is approximately eight feet wide by fifteen feet long unencumbered, and
approximately five feet wide by fifteen feet long encumbered. 90. Cell number C4 contains a sink, a toilet, a mirror, a steel bed which measures
approximately three feet wide by seven feet long, one small shelf which is bolted to the wall near the bed, and two additional shelves for storage. 91. Cell number C4 contains two rectangular-shaped windows which allow light to pass into the cell. 92. Plaintiff’s cell is constantly illuminated because Plaintiff is able only to dim the light within the cell, but cannot completely turn the light off. 93. Cell number C4 has three doors: (1) a “slider door” between the hallway and the “shower door” which has a rectangular-shaped window permitting anyone in the hallway a view of portions of the interior of the cell; (2) a “shower door” which is located approximately five feet from the “slider door” and is opened so that Plaintiff can take a shower or leave his cell; (3) a “yard door” is located at the other end of the cell away from the hallway and is opened to permit Plaintiff to step into the adjacent caged yard area. 94. All three doors as described above are electronically controlled by a guard or other prison employee who is located in a secured control room. 95. The “slider door” also contains two approximately six inch by eighteen inch hatches,
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which are opened in order to place Plaintiff in restraints before removing him from cell number C4. One hatch is located approximately “below the hips” and is used to place handcuffs and belly restraints on Plaintiff. The other hatch is “above the ankle” and is used to place leg irons on Plaintiff. 96. The “shower door” has a hatch which measures approximately six by eighteen inches through which Plaintiff receives his mail, meal trays, exchanges his laundry, and other necessities such as shower supplies and medications. 97. In addition, the “shower door” has an approximately 18 x 34 inch glass pane which permits a guard or other prison employee to view the inside of cell number C4 from outside of the “shower door.” 98. The “shower door” also has a thick, wire-mesh pane at the bottom of the door which permits air to flow into cell number C4. 99. The area between the “slider door” and the “shower door” is a shower area measuring approximately five feet by five feet and contains a stainless steel shower which is secured to the wall. 100. Plaintiff is confined to cell number C4, and its adjacent yard area, twenty-four hours a day, seven days a week, except when he is permitted to access the law library or is escorted to a medical appointment, court hearing, or meeting with an attorney. Conditions of Confinement–Sleep Deprivation 101. Plaintiff is chronically sleep deprived as a result of both the design of the SMU cell and the activities of both prison employees and other inmates housed in SMU. 102. Plaintiff’s bed is installed and located in an area inside the cell against the wall.
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103. The rectangular-shaped window in the “slider door” does not permit an individual standing in the hallway to see Plaintiff if Plaintiff is sleeping on his side in the cell’s bed.
104. The SMU guards generally work in three shifts–6:00 a.m until 2:00 p.m. (first shift), 2:00 p.m. until 10:00 p.m. (second shift), and 10:00 p.m. until 6:00 a.m. (third shift).
105. During the third shift, the guards begin checking on prisoners, in order to ascertain that each prisoner is in his cell, at 10:00 p.m.
106. The third shift guards continue checking on prisoners every half-hour. 107. If a guard is unable to view Plaintiff from the hallway, through the “slider door,” it is
likely that Plaintiff is obscured from view only because Plaintiff is sleeping on his side in the bed. 108. In order to view Plaintiff, prison regulations, policies, and practices require that the guard or other prison employee must open the “slider door” in order to view Plaintiff in his cell. 109. The opening of the “slider door” makes a loud noise akin to the constant ringing of a bell. 110. Even if Plaintiff is visible to the guard upon a 30-minute check, Plaintiff is awakened nightly by guards opening and closing the “slider door” to other prisoners’ cells. 111. In some instances, certain guards go even further to prevent Plaintiff from sleeping. 112. In particular, one third-shift guard who Defendants refuse to identify to Plaintiff, engages in the jangling of keys, slamming of doors throughout Gallery C, talking very loudly, yelling the names of prisoners very loudly, engaging in checks every 15 minutes rather than every 30 minutes, beating on the “slider door” repeatedly until Plaintiff responds, shining a high-beam flashlight into Plaintiff’s cell, and interrupting Plaintiff while he uses the toilet.
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113. Numerous other loud noises wake Plaintiff on a regular and continuous basis. 114. Specifically, Plaintiff is awakened by the jet-engine like sounds of the wet vac and buffer
machines, used to clean SMU after a prisoner floods the SMU with human waste, as described below. 115. Plaintiff is further sleep deprived on a daily basis due to the pandemonium of seriously mentally ill prisoners expressing their suffering and hallucinations in raving, screaming, moaning, cursing, and beating on the walls of the SMU. 116. Plaintiff is further chronically sleep deprived due to the constant illumination inside of his cell. 117. Sleep is a basic human need, the failure to provide which is a dangerous and inhumane deprivation. 118. Sleep deprivation is an atypical and significant hardship in relation to the ordinary incidents of prison life. 119. Sleep deprivation has been shown to result in cognitive problems, memory deficits, confusion and anxiety, and intensifies psychiatric symptoms. 120. Defendants Clarke, Houston, Hopkins, Britten, and Vodicka have shown deliberate indifference towards these conditions, which pose a substantial risk of serious physical and psychological harm to Plaintiff. Conditions of Confinement–Exposure to Human Waste 121. Plaintiff is routinely exposed to human waste, both in his cell and through the centralized ventilation systems in TSCI. 122. On a regular basis, other prisoners plug the toilets and continuously flush them until the
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toilets overflow. This results in the hallways in Gallery A and B being flooded with human waste. 123. Only Galleries C and D are equipped with drains in the shower area of each cell and the remainder of SMU is not equipped with drains, resulting in more extensive flooding. 124. If Plaintiff is taken from his cell to a medical appointment, the law library, or to meet with counsel during a flooding episode, he is forced to wade through human waste and other debris from the flooded toilets in the hallways. 125. In addition, Plaintiff has repeatedly been the “victim” of flooded toilets within his cell, resulting from the prisoner in the neighboring cell plugging his toilet. 126. When Plaintiff’s toilet floods, he and all of his belongings are exposed to raw human waste. 127. This has happened repeatedly in the past and there is no system in place to prevent it from happening again. 128. The SMU houses the severely mentally ill, who often defecate on the floor of their cells, and spread feces on the walls and throughout the SMU. 129. As a result of these actions by the mentally ill housed in SMU, there is often the smell of human feces in the air, which is circulated through the SMU’s centralized ventilation system. 130. Plaintiff’s cell is often permeated with stale air that is saturated with the fumes of feces, as well as the fumes of other bodily odors, which undermines the health and sanitation of SMU. 131. The ability to live in a safe and sanitary environment, free from exposure to human waste,
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is a basic human need, the failure to provide which is a dangerous and inhumane deprivation. 132. This exposure to human waste, in the hallways, in Plaintiff’s cell, and in the centralized ventilation system is an atypical and significant hardship in relation to the ordinary incidents of prison life. 133. Defendants Clarke, Houston, Hopkins, Britten, and Vodicka have shown deliberate indifference towards these conditions, which pose a substantial risk of serious physical and psychological harm to Plaintiff. Conditions of Confinement–Exposure to Rodents, Insects, and Other Vermin 134. Both while Plaintiff was confined in the CU at the NSP and currently in SMU at TSCI, he has been repeatedly and regularly exposed to rodents, insects, and other vermin. 135. On many occasions, Plaintiff has awakened to mice and rats running around his cell and spiders crawling on his face. 136. Plaintiff has been repeatedly bitten by spiders, and has sustained physical injury requiring medical treatment in such instances. 137. The ability to live in a safe and sanitary environment, free from exposure to rodents, insects, and other vermin, is a basic human need, the failure to provide which is a dangerous and inhumane deprivation. 138. This exposure to rodents, insects, and other vermin, is an atypical and significant hardship in relation to the ordinary incidents of prison life. 139. Defendants Clarke, Houston, Hopkins, Britten, and Vodicka have shown deliberate indifference towards these conditions, which pose a substantial risk of serious physical
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and psychological harm to Plaintiff. Conditions of Confinement–Constant Illumination of Cell 140. Plaintiff’s cell is illuminated 24 hours per day as a result of a night light which he cannot
control, and a light in the shower area which illuminates his cell 24 hours per day. 141. This constant illumination has caused Plaintiff grave sleeping problems, aggravation to a
medical condition of his eyes known as photophobia, and other mental and physiological problems. 142. The ability to live free from constant illumination is a basic human need, the failure to provide which is a dangerous and inhumane deprivation. 143. This exposure to constant illumination is an atypical and significant hardship in relation to the ordinary incidents of prison life. 144. Defendants Clarke, Houston, Hopkins, Britten, and Vodicka have shown deliberate indifference towards these conditions, which have caused Plaintiff physical harm, and pose a substantial risk of serious physical and psychological harm to Plaintiff. Conditions of Confinement–Denial of Access to Law Library 145. As a prisoner on IM status in the SMU, Plaintiff is entitled to only one hour of law library access per week. 146. During that one hour, Plaintiff is often not permitted the assistance of a trained Legal Aide and is in full restraints, making it very difficult to write, type, or hold books. 147. TSCI Operational Memorandum 116.01.02 states that an inmate housed in the SMU shall have restraints on during law library time, “with the exception of one hand free for writing purposes.”
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148. Defendant is often denied his right to have one hand free and therefore is not permitted meaningful law library access.
149. In addition, Plaintiff is often denied access to the law library completely or is permitted to simply be present in the law library without the ability to make meaningful use of the time.
150. Plaintiff had a particular need for more access than was allowed him, in order to timely file his petition for writ of certiorari with the U.S. Supreme Court, challenging his firstdegree murder conviction and resulting life sentence.
151. Defendants Clarke, Houston, Hopkins, and Britten denied Plaintiff’s particular need for additional law library access and such denial caused Plaintiff actual harm, namely Plaintiff’s inability to challenge his conviction and sentence.
152. Defendants Clarke, Houston, Hopkins, and Britten have shown deliberate indifference towards these conditions, which have caused Plaintiff actual harm and denial of access to the courts.
Conditions of Confinement–Denial of Access to Medical Treatment 153. Plaintiff has had ongoing physical medical needs relating to his shoulders, eyes, and
treatment for hernias. 154. Since his confinement at TSCI began, Plaintiff has been denied treatment for his
shoulders, specifically, Plaintiff has been denied required follow up care despite a decreased range of motion in his right shoulder, numbness, loss of strength, and hand spasms. 155. Plaintiff has also been denied treatment for hernias, specifically, Plaintiff has been denied
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follow up care with Dr. Keith Shuey of Johnson County Medical Center who requested to see Plaintiff in six months during a February 20, 2003 visit. Plaintiff has never had a follow up visit with Dr. Shuey despite continuing physical pain and discomfort. 156. Plaintiff has also been denied treatment for a condition of the eyes known as photophobia, or sensitivity to light, and is denied the ability to have sunglasses despite a physician’s order to permit Plaintiff to obtain sunglasses. 157. Defendants Clarke, Houston, Hopkins, Britten, Cole, and Carmichael have shown deliberate indifference towards these medical conditions, which have caused Plaintiff physical harm, and pose a substantial risk of serious physical and psychological harm to Plaintiff. Conditions of Confinement–Denial of Access to Meaningful Physical Exercise 158. While confined in SMU, Plaintiff is permitted one hour of “yard time” five times per week. Plaintiff does not choose the time during which he is allowed to be in the yard. 159. The “yard” is adjacent to Plaintiff’s cell and is accessed through the “yard door” in Plaintiff’s cell. 160. The “yard” measures approximately eight feet by fifteen feet. The floor of the “yard” is concrete, and two of the walls are also concrete. The remaining two walls consist of the “yard door” and steel gate/cage wall. There are no restroom or other facilities in the “yard.” 161. Once outside in the yard, Plaintiff is not permitted to reenter the cell until the entire yard time (one hour) expires. 162. If Plaintiff asks to use the restroom prior to going to the “yard,” Plaintiff is often denied
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yard time and is deemed to have “refused” yard time simply by seeking to use the restroom prior to accessing the yard. 163. In addition, once in the “yard,” Plaintiff has not been permitted to reenter the cell until the entire yard time expires on occasions where Plaintiff has suffered illnesses including dizziness, diarrhea, and nausea. 164. Plaintiff has further been required to remain in the yard until expiration of the one-hour yard time in instances where the weather has changed dramatically and has become unsafe, such as stormy conditions. 165. Where a prisoner is confined to continuous and long-term segregation, outdoor exercise is a basic human need, the failure to provide which is a dangerous and inhumane deprivation. 166. The deprivation of meaningful outdoor exercise, which is often denied at the whim of Defendants, is an atypical and significant hardship in relation to the ordinary incidents of prison life. 167. Defendants Clarke, Houston, Hopkins, and Britten have shown deliberate indifference towards these conditions, which have caused Plaintiff physical harm, and pose a substantial risk of serious physical and psychological harm to Plaintiff. have shown deliberate indifference towards these conditions, which pose a substantial risk of serious physical and psychological harm to Plaintiff. Classification Decisions 168. Classification into the CU and SMU are arbitrary, and no guidance is ever given as to what conduct is necessary to be transferred out of CU or SMU.
23

4:04-cv-03231-JFB-TDT Doc # 110 Filed: 06/09/06 Page 24 of 29 - Page ID # 800
169. Plaintiff classification in SMU is based on a single misconduct report, filed on April 25, 2001 relating to an escape attempt from NSP.
170. Plaintiff’s classification status is reviewed approximately every six months, and no additional evidence is ever presented that warrants keeping Plaintiff in SMU, on IM status.
171. Plaintiff is not permitted to present documentary evidence at classification review hearings, is not permitted to call witnesses, and is not permitted any meaningful opportunity to challenge or otherwise rebut his IM status.
172. During his incarceration in the CU, Plaintiff was, on at least one occasion, not provided with notice of a classification review hearing and was not permitted to attend the hearing.
173. Further, Defendant Sell and his subordinates routinely “certify” Plaintiff’s mental health but have never examined him, have never met with him, and merely ask a cursory question such as “have you had any suicidal thoughts” on a regular basis.
174. IM status is a punitive status as Plaintiff is prohibited from having a job, prohibited from exercising his sincerely held religious beliefs such as daily showers, is limited to one hour of law library access per week, is in constant restraints, and is not permitted contact visits with family and friends.
175. The punitive IM status is far more restrictive than that of prisoners confined on Death Row. Death row inmates are permitted all of the above privileges, in addition to other privileges such as soft drink machine and additional “yard” time.
176. IM status is an atypical and significant hardship on Plaintiff because classification as an IM prisoner extends the duration of his incarceration.
24

4:04-cv-03231-JFB-TDT Doc # 110 Filed: 06/09/06 Page 25 of 29 - Page ID # 801
177. For example, when Plaintiff attended his last parole hearing, he was berated by the parole board for his failure to have a job, engage in educational opportunities, and otherwise “progress” towards rehabilitation.
178. The parole board denied his request to commute his sentence to something less than a life sentence (and therefore denied Plaintiff’s ability to take advantage of good time credits) because of Plaintiff’s failure to work towards rehabilitation, even though Plaintiff is prohibited from engaging in rehabilitative activities.
179. Because Plaintiff has been denied the commutation of his sentence as a result of his IM status, the duration of Plaintiff’s incarceration is extended as a function of his classification.
180. Plaintiff has been incarcerated in a highly-prohibitive segregated unit for over five years. There is no question that his IM status is indefinite. Indeed, Plaintiff has been told by many prison employees that Defendants plan to keep him on IM status for at least 10 years.
181. Defendants’ arbitrary classification system is impenetrable to Plaintiff, and gives unlimited discretion to Defendants in determining classification status.
182. While Plaintiff is confined to the SMU, he is subjected to the numerous unlawful conditions of confinement and thus exposed to harm and dangerous conditions.
183. Defendants Clarke, Houston, Hopkins, Britten, Kenney, and Sell have shown deliberate indifference towards Plaintiff’s classification status, which have caused Plaintiff physical harm, and pose a substantial risk of serious physical and psychological harm to Plaintiff.
25

4:04-cv-03231-JFB-TDT Doc # 110 Filed: 06/09/06 Page 26 of 29 - Page ID # 802
FIRST CLAIM FOR RELIEF Against Defendants Clarke, Houston, Hopkins, Britten, and Carmichael Violation of the Religious Land Use and Institutionalized Persons Act of 2000 (the “RLUIPA”)
(42 U.S.C. § 2000cc et seq.) 184. Paragraphs 1 through 72 are incorporated by reference as if set forth fully herein. 185. Defendants Clarke, Houston, Hopkins, Britten, and Carmichael have deprived and
continue to deprive Plaintiff of his right to the free exercise of religion, as secured by the Religious Land Use and Institutionalized Persons Act of 2002, by unlawfully imposing a substantial burden on Plaintiff’s religious exercise. 186. On information and belief, the substantial burden Defendants Clarke, Houston, Hopkins, Britten, and Carmichael have imposed on Plaintiff’s religious exercise is imposed in a program or activity that receives federal financial assistance. 187. The substantial burden has caused Plaintiff numerous physical and psychological injuries, including but not limited to substantial weight loss and the worsening of medical conditions involving his shoulders.
SECOND CLAIM FOR RELIEF Against Defendants Clarke, Houston, Hopkins, Britten, and Carmichael
Violation of the United States Constitution Free Exercise of Religion: First and Fourteenth Amendments
(42 U.S.C. § 1983) 188. Paragraphs 1 through 72 are incorporated by reference as if set forth fully herein. 189. Defendants have deprived and continue to deprive Plaintiff of his free exercise of
religion, as secured by the First Amendment to the United States Constitution and made applicable to the States by the Fourteenth Amendment, by discriminating against Plaintiff because of his religious and by substantially burdening his religious exercise.
26

4:04-cv-03231-JFB-TDT Doc # 110 Filed: 06/09/06 Page 27 of 29 - Page ID # 803
190. The substantial burden has caused Plaintiff numerous physical and psychological injuries, including but not limited to substantial weight loss and the worsening of medical conditions involving his shoulders. THIRD CLAIM FOR RELIEF Against All Defendants Violation of the United States Constitution Freedom from Cruel and Unusual Punishment: Eighth and Fourteenth Amendments (42 U.S.C. § 1983)
191. Paragraphs 1 through 183 are incorporated by reference as if set forth fully herein. 192. Defendants have deprived and continue to deprive Plaintiff of his rights to be free from
cruel and unusual punishment, as secured by the Eighth Amendment to the United States Constitution and made applicable to the States by the Fourteenth Amendment. 193. Specifically, Defendants have deprived Plaintiff of his rights to be free from inhumane and dangerous conditions of confinement, and to the extreme deprivations of basic needs as described herein, Defendants have acted, and continue to act, with deliberate indifference towards Plaintiff’s serious health and safety needs.
FOURTH CLAIM FOR RELIEF Against Defendants Clarke, Houston, Kenney, Hopkins, Britten, and Sell
Violation of the United States Constitution Procedural Due Process Violations: Fourteenth Amendment
(42 U.S.C. § 1983) 194. Paragraphs 1 through 183 are incorporated by reference as if set forth fully herein. 195. Defendants have deprived and continue to deprive Plaintiff of his rights to be free from an
atypical and significant hardship in relation to the ordinary incidents of prison life and have failed to afford Plaintiff with the opportunity to be heard and other basic procedural safeguards.
27

4:04-cv-03231-JFB-TDT Doc # 110 Filed: 06/09/06 Page 28 of 29 - Page ID # 804
196. Defendants have therefore denied, and continue to deny, Plaintiff due process, in violation of his rights under the Fourteenth Amendment to the United States Constitution. WHEREFORE, Plaintiff respectfully requests that this Court: 1. Issue a judgment declaring that the actions of Defendants described herein are unlawful and violate Plaintiff’s rights under the Constitution of the United States; 2. Issue a preliminary and permanent injunction requiring Defendants to provide Plaintiff with a nutritionally-sufficient kosher diet; 3. Declare that Defendants’ failure to provide Plaintiff with a nutritionally-sufficient kosher diet, as required by his sincere religious beliefs, is in violation of the RLUIPA; 4. Declare that the Defendants’ failure to provide Plaintiff with the opportunity to shower on a daily basis, as required by his sincere religious beliefs, is in violation of the RLUIPA; 5. Preliminarily and permanently enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with them, from subjecting Plaintiff to the conditions of confinement set forth in this Amended Complaint; 6. Award compensatory and general damages against all Defendants and each of them in favor of Plaintiff, in an amount to be determined according to the proof; 7. Grant Plaintiff his reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988 and other applicable laws; and 8. Grant all such other relief as this Court deems just and proper.
28

4:04-cv-03231-JFB-TDT Doc # 110 Filed: 06/09/06 Page 29 of 29 - Page ID # 805

Dated this 9th day of June, 2006.

MOHAMED A. EL-TABECH, Plaintiff

BY: OGBORN, SUMMERLIN & OGBORN, P.C. GENE SUMMERLIN - 19611 MARNIE A. JENSEN - 22380 610 J Street, Suite 200 Lincoln, NE 68508 (402) 434-8040 gene@osolaw.com marnie@osolaw.com

BY:

/s/ Marnie A. Jensen

Marnie A. Jensen

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 9th day of June, 2006, the foregoing document was electronically filed using the CM/ECF system which sent notification of the filing to the following:
David Handley Assistant Attorney General 2115 State Capitol Bldg. Lincoln, NE 68509 david.handley@ago.ne.gov
/s/ Marnie A. Jensen Marnie A. Jensen

29

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
v. HAROLD W. CLARKE, et al.,
Defendants.

)

)

4:04CV3231

)

)

)

)

MEMORANDUM AND ORDER

)

)

)

)

This matter is before the court on plaintiff’s Motion for Attorney Fees and Costs pursuant to 42 U.S.C. § 1988. Filing No. 191. This is a civil rights action, brought by a prisoner incarcerated in the Nebraska Department of Correctional Services. The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that defendants violated his rights under the First, Eighth, and Fourteenth Amendments to the Constitution and under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. The plaintiff’s Eighth Amendment cruel and unusual punishment claim was settled and the court dismissed El-Tabech’s Fourteenth Amendment procedural due process claim on a motion for summary judgment.
El-Tabech’s First Amendment and RLUIPA claims were tried to the court. The court found that El-Tabech’s First Amendment right to the free exercise of his religion and RLUIPA rights had been violated by the NDCS’s denial of access to a kosher diet and its refusal to post and reasonably accommodate his daily prayer schedule. Filing No. 179. The court ordered injunctive relief. Id.
Plaintiff seeks fees in the amount of $196,605.90 and taxable costs of $8,380.38, for a total of $204,856.28.1 In support of the motion for attorneys’ fees, plaintiff submits

1 Plaintiff also seeks leave to file a supplemental fee request following the defendants’ full implementation of the court’s order. The court finds that request should be granted.

(1) itemized and detailed contemporaneous time records and cost entries; (2) a summary and itemization of unrecoverable time; (3) the qualifications of counsel; and (4) affidavits from Lincoln, Nebraska, attorneys attesting to the reasonableness of the fees and costs sought by plaintiff. Filing No. 193, Index of Evidence, Exs. 1-A, 1-B, 1-C, Ex. 2, Affidavit of Jefferson Downing, Ex. 3, Affidavit of Pete Wegman. In their affidavits, the local attorneys state that they are familiar with the pleadings, briefs, orders, and billing statements generated in the litigation, with the attorneys involved in the case, the reputations of those attorneys, the type and quality of work, and the Lincoln legal market. Id. In support of his request for taxable costs, plaintiff submits an affidavit and documentation of costs actually incurred in the litigation. Id., Ex. 4, Affidavit of Gene Summerlin, attached Ex. A.
The defendant prison officials oppose the award. They contend that the total hours expended on the litigation are excessive and unreasonable. Defendants also argue that the time is not properly documented. They also contend that the fees requested are not allowable in part because El-Tabech did not prevail on all of his claims.
The “prevailing party” in a § 1983 action is generally entitled to “a reasonable attorney's fee.” See 42 U.S.C. § 1988 (2007); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Cody v. Hillard, 304 F.3d 767, 772 (8th Cir. 2002). A “prevailing party” is one who secures a “judicially sanctioned change in the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Resources, 532 U.S. 598, 605 (2001); Farrar v. Hobby, 506 U.S. 103, 111-112 (1992) (stating that a plaintiff prevails "when actual relief on the merits of his claim materially alters the legal
2

relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff").
Nevertheless, compensability is limited by the degree of a plaintiff's success in the case as a whole. Jenkins by Jenkins v. Missouri, 127 F.3d 709, 718 (8th Cir. 1997). The Eighth Circuit has noted "the degree of [a plaintiff's] success is ‘the most critical factor' in determining a reasonable fee award." Warnock v. Archer, 397 F.3d 1024, 1026 (8th Cir. 2005). There is “no precise rule or formula” for making fee determinations in cases with only partial success. Hensley, 461 U.S. at 436. Where “the court cannot separate out which hours were billed for which issues, [it] ‘may simply reduce the award to account for the [plaintiff's] limited success.’” Warnock, 397 F.3d at 1026 (quoting Hensley, 461 U.S. at 436-37). Where the plaintiff prevails on some, but not all of the claims he asserts, the court may consider the significance of the issues on which the plaintiff prevailed and whether a public purpose was served or relief obtained that applied to others besides the plaintiff. See, e.g., Murray v. City of Onawa, Iowa, 323 F.3d 616, 619 (8th Cir. 2003).
Also, the prevailing party status extends to postjudgment work if it is a “necessary adjunc[t] to the initial litigation.” Jenkins by Jenkins, 127 F.3d at 716. A district court may award fees to a prevailing party for reasonable postjudgment monitoring. Cody, 304 F.3d 774.
Because the plaintiff is a prisoner, his civil rights suit is also subject to the Prison Litigation Reform Act of 1996 (“PLRA”), which imposes special limitations on fee awards. 42 U.S.C. § 1997e(d)(1). To recover fees, the prisoner must be a prevailing party under 42 U.S.C. § 1988 and the fees must be directly and reasonably incurred in proving an actual violation of the prisoner’s rights, must be proportionately related to the court-ordered
3

relief for the violation, or directly and reasonably incurred in enforcing the relief ordered for the violation and the hourly rate of the fee recovery must be no more than 150% of the Criminal Justice Act rates for court-appointed counsel.2 See 42 U.S.C. § 1997e(d)(1)(A) & (B). See also Martin v. Hadix, 527 U.S. 343, 353, 360 (1999) (affirming a fee award under the PLRA for postjudgment monitoring, but reducing the award in accordance with PLRA's hourly rate cap).
In determining the amount of attorney fees, the court should consider these factors: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Hensley, 461 U.S. at 430 n.3. The starting point for determining the amount of attorney fees is the lodestar, which is determined by multiplying the number of hours reasonably expended by the reasonable hourly rate. Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).
El-Tabach seeks compensation for a total of 1,460.8 hours of attorney work at the rate of $138.00 per hour. The court has reviewed the time sheets and billing descriptions submitted by plaintiff and finds them sufficiently detailed. The time records show that El-Tabech seeks remuneration only for work that directly relates to his First Amendment
2 The rate for court-appointed counsel in the Eighth Circuit is $92.00 per hour. Thus, the highest hourly rate that can be recovered in this action is $138.00 per hour.
4

and RLUIPA claims. Time spent on unsuccessful claims, totaling 187.9 hours, has been identified and $24,651.90 has been subtracted from the fees requested. Because unrecoverable time has already been deducted for plaintiff’s requested fees, there is no need for a percentage reduction in the amount of the award. Moreover, the court notes that the claims on which El-Tabech succeeded, his religious claims, were the heart of this litigation from the outset. The First Amendment and RLUIPA claims are interrelated–El-Tabech’s kosher diet claim being the central focus. The court also finds the hours expended on the litigation are reasonable in view of the complexity of the litigation, the importance of the issues and the quality of the attorneys’ work. The action has been pending for more than three years, which included unrelenting resistance by the defendants. It involved extensive discovery, including a number of depositions, and several contested motions. It also involved trial preparation and a two-day trial as well as several post-trial disputes concerning the defendants’ compliance with the court’s order. In addition, the attorneys assumed a significant risk on nonrecovery and prisoner litigation cases are often regarded as undesirable.
Through this litigation, the plaintiff vindicated important constitutional rights. Significant and complicated constitutional issues and statutory issues were adjudicated and El-Tabech vindicated not only his own rights, but those of similarly situated prisoners. Accordingly, the court finds the requested fees are proportional to the meaningful benefit obtained.
Under the PLRA, the recoverable hourly rate is capped at $138.00. A reasonable hourly rate would exceed that amount for each of El-Tabech’s attorneys. El-Tabech was represented by an AV rated law firm and all of his attorneys are highly qualified and
5

distinguished lawyers with excellent reputations. In the marketplace, El-Tabech’s attorneys charge between $150.00 and $212.00 per hour. Based on the affidavits submitted by El-Tabech and on its own familiarity with rates for legal services in this community, the court finds that $138.00 per hour is a reasonable hourly rate. Accordingly,
IT IS ORDERED: 1. Plaintiff’s motion for attorneys’ fees and costs (Filing No. 191) is granted. 2. Attorney fees in the amount of $196,605.90 are assessed in favor of plaintiff and against defendants. 3. Costs in the amount of $8,380.38 are taxed in favor of a plaintiff and against defendants. 4. A judgment in conformity with this memorandum and order will be entered this date. DATED this 5th day of May, 2008.
BY THE COURT:
s/ Joseph F. Bataillon Chief United States District Judge
6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH,

)

)

Plaintiff,

)

)

v.

)

)

HAROLD W. CLARKE, et al.,

)

)

Defendants.

)

)

4:04CV3231 ORDER

This matter is before the court on the plaintiff’s supplemental motion for attorney’s fees in connection with his motion for contempt, Filing No. 233. This court found that plaintiff was entitled to fees in an earlier order. See Filing No. 228. El-Tabech seeks $73,360.20 in attorney’s fees and $271.20 in recoverable costs for a total fee and cost award of $73,631.40. The defendants argue that the fee application seeks fees that are, in part, not recoverable because the plaintiff prevailed only on one of two issues presented in his motion for contempt and that the fees sought are excessive.
A successful civil rights plaintiff is “normally entitled to fees” under 42 U.S.C. § 1988. Cody v. Hillard, 304 F.3d 767, 772 (8th Cir. 2002). A prisoner who prevails in a civil rights claim under 42 U.S.C. § 1983, is entitled to recover his fees subject to the provisions of the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(d). Fees are allowed for work undertaken by plaintiff’s attorneys to monitor compliance with the court’s orders and to enforce those orders and judgments that are a “necessary adjunc[t] to the initial litigation,” and were directly and reasonably incurred in enforcing the relief ordered for the violation. Jenkins by Jenkins v. Missouri, 127 F.3d 709, 716 (8th Cir. 1997).
In support of the motion for attorney’s fees, plaintiff has submitted itemized and detailed contemporaneous time records and cost entries as well as affidavits from Lincoln,

Nebraska, attorneys attesting to the reasonableness of the fees and costs sought by plaintiff. See Filing No. 234, Index of Evid., Ex. 1, Affidavit of Gene Summerlin (“Summerlin Aff.”), Ex. A, billing statement; Ex. 2, Affidavit of Jefferson Downing; Ex. 3, Affidavit of Pete Wegman. The court has reviewed the plaintiff’s application, affidavits and time sheets. The plaintiff has shown that he seeks a fee award only for work performed in connection with the issue on which he was successful—the kosher diet issue. See id., Summerlin Aff. at 5. The plaintiff does not seek reimbursement of $15,360.60 in fees for post-judgment monitoring of plaintiff’s prayer claims. Id. The court finds that the time expended on post-judgment monitoring, enforcement of the previous fee judgment, the motion for contempt, and the present fee application are reasonable in light of the defendants’ conduct in this matter. Accordingly, the court finds El-Tabech is entitled to recover an additional $73,360.20 in attorney’s fees and $271.20 in recoverable costs. The fees and costs are the product of a reasonable number of hours multiplied by a reasonable hourly rate and are fair, reasonable and customary within the Lincoln, Nebraska, legal market for the type of work provided to El-Tabech. Accordingly,
IT IS ORDERED: 1. Plaintiff’s supplemental motion for attorney’s fees (Filing No. 233) is granted. 2. Plaintiff is awarded an additional $73,360.20 in attorney’s fees and $271.20 in recoverable costs. 3. A separate judgment will be entered in accordance with this Memorandum and Order. DATED this 10th day of June, 2009.
BY THE COURT:
s/ Joseph F. Bataillon Chief District Judge
2

 
 4:04-cv-03231-JFB-TDT Doc # 61 Filed: 06/02/05 Page 1 of 2 - Page ID # 508

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
vs. HAROLD W. CLARKE1, et al.,
Defendants.

)

)

)

4:04cv3231

)

)

MEMORANDUM AND ORDER

)

)

)

)

This matter is before the court on filing no. 59, the Motion for a Preliminary Injunction and Temporary Restraining Order filed by the plaintiff, Mohamed A. El-Tabech, a prisoner in the custody of the Nebraska Department of Correctional Services ("DCS"). By June 30, 2005, the defendants shall file a separate response to filing no. 59.
In the Eighth Circuit, a court must balance four factors (the “Dataphase factors”) when determining whether to issue a TRO or preliminary injunction. The Dataphase factors are:
1. the threat of irreparable harm to the movant; 2. the balance between the harm to the movant and any injury that
temporary injunctive relief would inflict on the nonmoving party should the injunction issue; 3. the likelihood of success on the merits; and 4. the public interest.
See, e.g., Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999); Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995); Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir. 1981) (en banc). The burden of proving that preliminary injunctive relief should be granted “rests entirely with the movant.” Goff v. Harper, 60 F.3d at 520. “[F]or an injunction to issue ‘a right must be violated’ and ... ‘the court must determine’ whether ‘a cognizable danger of future violation exists and that danger must be more than a mere possibility.’" Id. at 521 (citation omitted).
In the prison context, the availability of injunctive relief is limited by 18 U.S.C. § 3626, as amended by the Prison Litigation Reform Act (“PLRA”). 18 U.S.C. § 3626(a)(1)(A) states:

1Filing no. 60, the plaintiff’s Motion to add Robert Houston as a party, is granted. 1

4:04-cv-03231-JFB-TDT Doc # 61 Filed: 06/02/05 Page 2 of 2 - Page ID # 509

(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

In addition, 18 U.S.C. § 3626(a)(2) states:

(2) Preliminary injunctive relief.--In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.

THEREFORE, IT IS ORDERED:

1. granted;

That filing no. 60, the plaintiff’s Motion to add Robert Houston as a party, is

2. That by June 30, 2005, the defendants shall respond to the plaintiff’s Motion for a Preliminary Injunction and Temporary Restraining Order (filing no. 59); and

3. That by July 15, 2005, unless a timely motion for extension of time is granted, the plaintiff may reply to the defendants’ response.

Dated this 2nd day of June, 2005.

BY THE COURT:

s/ Joseph F. Bataillon JOSEPH F. BATAILLON Chief District Judge
2

 
 4:04-cv-03231-JFB-TDT Doc # 111 Filed: 06/12/06 Page 1 of 2 - Page ID # 806

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
vs. HAROLD W. CLARKE, et al.,
Defendants.

)

)

)

4:04cv3231

)

)

MEMORANDUM AND ORDER

)

)

)

)

This matter is before the court on filing no. 109, the defendants' Motion for Enlargement of Time to File a Response. The defendants request an extension until June 22, 2006 to respond to filing no. 103, the plaintiff's Motion for Protective Order and Return of Privileged Materials. The extension of time is granted.
The plaintiff alleges that privileged documents were seized from his cell during a shakedown or search of his cell. Filing no. 109 recites the efforts which the defendants and their attorneys are expending to satisfy the plaintiff and his attorney that any invasion of the plaintiff's rights or privileges, if any occurred, was inadvertent. However, the plaintiff is a prisoner in the segregation unit of a maximum security prison. He is serving a life sentence and has previously engaged in two escape attempts. Obviously, his cell is going to be subject to searches and shakedowns from time to time. On the other hand, as the defendants acknowledge, they do not have the right to read the plaintiff's privileged communications from his attorney. Therefore, the issue appears to be how to identify the plaintiff's privileged material so that privileged matter will be treated with some level of protection when the inevitable search or shakedown happens.
Initially I questioned why the plaintiff could not just place his protected papers in a paper bag marked "litigation material" or some such label. However, the defendants may have a justified concern that an unauthorized item could be placed in such a container, and it is certainly not for the court to declare any container in a prisoner's cell off limits from the kinds of searches which prison administrators are entitled to conduct to maintain security. So I suggest that the attorneys for the parties find some reasonable solution to the problem of how to identify the plaintiff's privileged materials during future cell searches.
Filing no. 109 is granted insofar as the defendants shall have the requested extension of time until June 22, 2006 to respond to filing no. 103. Instead of the requested in camera hearing, however, I direct the parties' attorneys to find some realistic and
1

4:04-cv-03231-JFB-TDT Doc # 111 Filed: 06/12/06 Page 2 of 2 - Page ID # 807 reasonable solution to the problem of identifying the plaintiff's attorney-client privileged material for whatever level of protection such material is to be afforded in future searches of the plaintiff's cell.
SO ORDERED. DATED this 12th day of June, 2006.
BY THE COURT: s/ F. A. GOSSETT United States Magistrate Judge
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MOHAMED A. EL-TABECH, Plaintiff,
vs. HAROLD W. CLARKE, et al.,
Defendants.

)

)

)

4:04cv3231

)

)

MEMORANDUM AND ORDER

)

)

)

)

I note that filing no. 103, the plaintiff's Motion for Protective Order and Return of Privileged Materials, is still pending, according to the court's records. However, in filing no. 111, I directed the parties' attorneys to find some realistic and reasonable solution to the problem of identifying the plaintiff's attorney-client privileged material for whatever level of protection such material is to be afforded in future searches of the plaintiff's cell. Accordingly, I assume that the matter has been resolved. Filing no. 103 is denied as moot.
SO ORDERED.
DATED this 29th day of November, 2006.
BY THE COURT:

s/ F. A. GOSSETT United States Magistrate Judge

 
 CLOSED,NEBRASKADOCKET,TRIAL−LINCOLN
U.S. District Court District of Nebraska (4 Lincoln) CIVIL DOCKET FOR CASE #: 4:04−cv−03231−JFB−TDT

El−Tabech v. Houston, et al Assigned to: Judge Joseph F. Bataillon Referred to: Magistrate Judge Thomas D. Thalken Case in other court: USCA − 8th Circuit, 09−01554
Eighth Circuit Court of Appeals, 09−02691 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 06/28/2004 Date Terminated: 05/20/2011 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Mohamed A. El−Tabech

represented by Justin W. Firestone OGBORN, SUMMERLIN LAW FIRM − NEBRASKA 610 J Street Suite 200 Lincoln, NE 68508 (402) 434−8040 Fax: (402) 434−8044 Email: justin@osolaw.com TERMINATED: 04/24/2007

Marnie A. Jensen HUSCH, BLACKWELL LAW FIRM − OMAHA 13330 California Street Suite 200 Omaha, NE 68154 (402) 964−5034 Fax: (402) 964−5050 Email: marnie.jensen@huschblackwell.com TERMINATED: 08/28/2007

Ted J. Lane OGBORN, SUMMERLIN LAW FIRM − NEBRASKA 610 J Street Suite 200 Lincoln, NE 68508 (402) 305−2184 Email: ted.lane@fnf.com ATTORNEY TO BE NOTICED

V. Gene Summerlin , Jr. HUSCH, BLACKWELL LAW FIRM − OMAHA 13330 California Street Suite 200 Omaha, NE 68154 (402) 964−5000 Email: gene.summerlin@huschblackwell.com ATTORNEY TO BE NOTICED

V.
Defendant
Harold Clarke in his individual and official capacity

represented by David M. Handley DYER LAW OFFICE 10730 Pacific Street Suite 111

Omaha, NE 68124−5646 (402) 393−7529 Fax: (402) 391−2289 Email: david@dyerlaw.com TERMINATED: 11/16/2006
Eileen L. McBride ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−4795 Fax: (402) 471−3591 Email: emcbride@notes.state.ne.us TERMINATED: 06/08/2005
Kimberley R. Taylor−Riley ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2682 Fax: (402) 471−2957 Email: Kimberley.TaylorRiley@ago.ne.gov TERMINATED: 02/28/2006
Linda L. Willard ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2757 Fax: (402) 471−3591 TERMINATED: 12/27/2006
Matthew A. Works HALL COUNTY PUBLIC DEFENDER'S OFFICE 117 East 1st Street Suite 2 Grand Island, NE 68801 (308) 385−5016 Fax: (308) 385−5029 Email: mattw@hallcountyne.gov TERMINATED: 06/02/2009
Ryan C. Gilbride ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2682 Fax: (402) 471−4725 Email: ryan.gilbride@nebraska.gov ATTORNEY TO BE NOTICED
Timothy P. Sullivan SULLIVAN LAW 5000 Central Park Drive Suite 204 Lincoln, NE 68504

Defendant Mike Kenney in his individual and official capacity
Defendant Francis Britten in his individual and official capacity

(402) 742−9170 Fax: (402) 467−2477 Email: timothy_p_sullivan@hotmail.com TERMINATED: 01/19/2006
represented by David M. Handley (See above for address) TERMINATED: 11/16/2006
Eileen L. McBride (See above for address) TERMINATED: 06/08/2005
Kimberley R. Taylor−Riley (See above for address) TERMINATED: 02/28/2006
Linda L. Willard (See above for address) TERMINATED: 12/27/2006
Matthew A. Works (See above for address) TERMINATED: 06/02/2009
Ryan C. Gilbride (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Sullivan (See above for address) TERMINATED: 01/19/2006
represented by David M. Handley (See above for address) TERMINATED: 11/16/2006
Eileen L. McBride (See above for address) TERMINATED: 06/08/2005
Kimberley R. Taylor−Riley (See above for address) TERMINATED: 02/28/2006
Linda L. Willard (See above for address) TERMINATED: 12/27/2006
Matthew A. Works (See above for address) TERMINATED: 06/02/2009
Ryan C. Gilbride (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Sullivan (See above for address) TERMINATED: 01/19/2006

Defendant Randy Cole in his individual and official capacity
Defendant Elizabeth Conley in her individual and official capacity TERMINATED: 08/31/2005
Defendant Janssen Williams in his individual and official capacity TERMINATED: 08/31/2005 Defendant Dave Thomas in his individual and official capacity TERMINATED: 08/31/2005 Defendant Douglas Sell in his individual and official capacity

represented by David M. Handley (See above for address) TERMINATED: 11/16/2006
Eileen L. McBride (See above for address) TERMINATED: 06/08/2005
Kimberley R. Taylor−Riley (See above for address) TERMINATED: 02/28/2006
Linda L. Willard (See above for address) TERMINATED: 12/27/2006
Matthew A. Works (See above for address) TERMINATED: 06/02/2009
Ryan C. Gilbride (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Sullivan (See above for address) TERMINATED: 01/19/2006
represented by Travis P. O'Gorman CLINE, WILLIAMS LAW FIRM − LINCOLN 233 South 13th Street 1900 US Bank Building Lincoln, NE 68508−2095 (402) 479−7193 Fax: (402) 474−5393 Email: togorman@clinewilliams.com ATTORNEY TO BE NOTICED
represented by Travis P. O'Gorman (See above for address) ATTORNEY TO BE NOTICED
represented by Travis P. O'Gorman (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Handley (See above for address) TERMINATED: 11/16/2006
Eileen L. McBride (See above for address) TERMINATED: 06/08/2005
Kimberley R. Taylor−Riley (See above for address)

Defendant Brian Shipman in his individual and official capacity TERMINATED: 08/10/2004 Defendant Mary Carmichael in her individual and official capacity
Defendant Paul Church TERMINATED: 08/31/2005 Defendant Robert Houston

TERMINATED: 02/28/2006
Linda L. Willard (See above for address) TERMINATED: 12/27/2006
Matthew A. Works (See above for address) TERMINATED: 06/02/2009
Ryan C. Gilbride (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Sullivan (See above for address) TERMINATED: 01/19/2006
represented by David M. Handley (See above for address) TERMINATED: 11/16/2006
Eileen L. McBride (See above for address) TERMINATED: 06/08/2005
Kimberley R. Taylor−Riley (See above for address) TERMINATED: 02/28/2006
Linda L. Willard (See above for address) TERMINATED: 12/27/2006
Matthew A. Works (See above for address) TERMINATED: 06/02/2009
Ryan C. Gilbride (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Sullivan (See above for address) TERMINATED: 01/19/2006
represented by David M. Handley (See above for address) TERMINATED: 11/16/2006
Linda L. Willard

(See above for address) TERMINATED: 12/27/2006
Matthew A. Works (See above for address) TERMINATED: 06/02/2009
Ryan C. Gilbride (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/28/2004
06/28/2004 06/28/2004 06/28/2004 06/28/2004 06/29/2004 07/09/2004 07/14/2004
07/23/2004 07/29/2004 08/05/2004
08/10/2004

# Docket Text
1 COMPLAINT against Francis Britten, Mary Carmichael, Harold Clarke, Randy Cole, Elizabeth Conley, Mike Kenney, Douglas Sell, Brian Shipman, Dave Thomas, Janssen Williams. No Summons issued filed by plaintiff Mohamed A. El−Tabech − (PAPER ATTACHMENT MAINTAINED IN CLERK'S OFFICE) (Attachments: # 1 # 2 # 3) (PART 1 OF 2)(KBJ) (Entered: 06/29/2004)
(PART 2 OF 2) MOTION for Preliminary (Temporary) Injunction filed by Plaintiff Mohamed A. El−Tabech (KBJ) (Entered: 06/29/2004)
2 MOTION (APPLICATION) for Leave to Proceed in forma pauperis filed by Plaintiff Mohamed A. El−Tabech (KBJ) (Entered: 06/29/2004)
3 MOTION to Appoint Counsel filed by Plaintiff Mohamed A. El−Tabech (KBJ) (Entered: 06/29/2004)
4 PRISONER TRUST ACCOUNT STATEMENT by Plaintiff Mohamed A. El−Tabech (KBJ, ) (Entered: 06/29/2004)
5 NOTICE by Clerk acknowledging receipt of complaint filed by a pro se party. (KBJ, ) (Entered: 06/29/2004)
6 MOTION to Substitute Party filed by Plaintiff Mohamed A. El−Tabech (KBJ) (Entered: 07/12/2004)
7 ORDER − The plaintiff's request to proceed in forma pauperis is granted, subject to payment of the initial partial filing fee and subsequent monthly partial filing fees; The plaintiff shall have until August 16, 2004, to pay an initial partial filing fee of$8.57 to the Clerk of Court; After payment of the initial partial filing fee, the plaintiff's institution shall collecttwenty (20) percent of each deposit made to the plaintiff's account; The plaintiff shall keep the court informed of the plaintiff's current address at all times while this case is pending; The motion for appointment of counsel filing no. 3 , is denied. Signed by Magistrate Judge F. A. Gossett on 7/14/2004. (TJS, ) (Entered: 07/14/2004)
8 MOTION to Appoint Counsel and Affidavit on behalf of Plaintiff Mohamed A. El−Tabech (MKR, ) (Entered: 07/26/2004)
9 FILING fee paid on behalf of Mohamed A. El−Tabech on 7/29/04. Receipt number 821165, in the amount of $ 8.57. (TJS, ) (Entered: 07/30/2004)
10 ORDER ON INITIAL REVIEW − that the plaintiff shall obtain service of process on the defendants. Plaintiff shall have an extension of time of 120 days from the date of this order to complete service on the defendants. Signed by Judge Joseph F. Bataillon on 8/5/2004. − clerk has done as directed(KBJ) (Entered: 08/06/2004)
11 ORDER − That filing no. 6 is granted as follows: a. Brian Shipman is dismissed from this litigation at the plaintiff'srequest; b. Leave to amend the complaint to add Paul Church as adefendant is granted instanter, and the Clerk of Court shallmodify the records of this case accordingly; c. The allegations of the complaint against Brian Shipman are provisionally deemed applicable to Paul Church unless, after entering an appearance, Mr. Church objects to that procedure;and That filing no. 8 , the plaintiff's Motion for Appointment of Counsel, is denied at this time, without prejudice to

08/10/2004
08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/18/2004 08/19/2004

reassertion of a similar motion after the defendants have entered their appearances and after the court is able to ascertain that no issue exists regarding the plaintiff's exhaustion of administrative remedies. Signed by Judge Joseph F. Bataillon on 8/10/2004. (TJS, ) (Entered: 08/10/2004)
12 Summons Issued (COPY) as to defendant Francis Britten, Mary Carmichael, Paul Church, Harold Clarke, Randy Cole, Elizabeth Conley, Mike Kenney, Douglas Sell, Dave Thomas, Janssen Williams. (TJS, ) (Entered: 08/11/2004)
13 SUMMONS Returned Executed upon defendant Harold Clarke at on 8/13/2004. (KBJ) (Entered: 08/19/2004)
14 SUMMONS Returned Executed upon defendant Harold Clarke (official capacity). (KBJ) (Entered: 08/19/2004)
15 SUMMONS Returned Executed upon defendant Mike Kenney on 8/13/2004. (KBJ) (Entered: 08/19/2004)
16 SUMMONS Returned Executed upon defendant Paul Church on 8/13/2004. (KBJ) (Entered: 08/19/2004)
17 SUMMONS Returned Executed upon defendant Mike Kenney (official capacity). (KBJ) (Entered: 08/19/2004)
18 SUMMONS Returned Executed upon defendant Francis Britten (official capacity) on 8/13/2004. (KBJ) (Entered: 08/19/2004)
19 SUMMONS Returned Executed upon defendant Mary Carmichael (official capacity) on 8/13/2004. (KBJ) (Entered: 08/19/2004)
20 SUMMONS Returned Executed upon defendant Randy Cole (official capacity) on 8/13/2004. (KBJ) (Entered: 08/19/2004)
21 SUMMONS Returned Executed upon defendant Douglas Sell (official capacity) on 8/13/2004. (KBJ) (Entered: 08/19/2004)
22 SUMMONS Returned Executed upon defendant Dave Thomas (official capacity) on 8/13/2004. (KBJ) (Entered: 08/19/2004)
23 SUMMONS Returned Executed upon defendant Elizabeth Conley (official capacity) on 8/13/2004. (KBJ) (Entered: 08/19/2004)
24 SUMMONS Returned Executed upon defendant Janssen Williams (official capacity) on 8/13/2004. (KBJ) (Entered: 08/19/2004)
25 SUMMONS Returned Executed upon defendant Randy Cole on 8/13/04. (KBJ) (Entered: 08/19/2004)
26 SUMMONS Returned Executed upon defendant Paul Church on 8/13/04 (KBJ) (Entered: 08/19/2004)
27 SUMMONS Returned Executed upon defendant Francis Britten. (KBJ) (Entered: 08/19/2004)
28 SUMMONS Returned Executed upon defendant Janssen Williams. (KBJ, ) (Entered: 08/19/2004)
29 SUMMONS Returned Executed upon defendant Dave Thomas. (KBJ, ) (Entered: 08/19/2004)
30 SUMMONS Returned Executed upon defendant Mary Carmichael. (KBJ, ) (Entered: 08/19/2004)
31 SUMMONS Returned Executed upon defendant Douglas Sell. (KBJ, ) (Entered: 08/19/2004)
32 SUMMONS Returned Executed upon defendant Elizabeth Conley. (KBJ) (Entered: 08/19/2004)

08/31/2004 09/02/2004
09/02/2004 09/02/2004
09/17/2004 09/17/2004 09/17/2004 09/17/2004 10/01/2004 10/01/2004 10/04/2004 10/04/2004 10/04/2004 10/04/2004 10/04/2004 10/25/2004

33 MOTION for Extension of Time to File Answer to Complaint by Attorney Travis P. O'Gorman on behalf of Defendants Elizabeth Conley, Dave Thomas, Janssen Williams (O'Gorman, Travis) (Entered: 08/31/2004)
34 ORDER granting 33 Motion for Extension of Time to Answer. Elizabeth Conley answer due 10/1/2004; Dave Thomas answer due 10/1/2004; Janssen Williams answer due 10/1/2004. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. Signed by Deputy Clerk on 9/2/2004. (JAE, ) (Entered: 09/02/2004)
35 MOTION for Extension of Time to File Answer Motion for Enlargement of Time by Attorney Eileen L. McBride on behalf of Defendants Francis Britten, Mary Carmichael, Harold Clarke, Randy Cole, Mike Kenney, Douglas Sell (McBride, Eileen) (Entered: 09/02/2004)
36 ORDER granting 35 Motion for Extension of Time to Answer. Francis Britten answer due 10/4/2004; Mary Carmichael answer due 10/4/2004; Harold Clarke answer due 10/4/2004; Randy Cole answer due 10/4/2004; Mike Kenney answer due 10/4/2004; Douglas Sell answer due 10/4/2004. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. Signed by Deputy Clerk on 9/2/2004. (DKM, ) (Entered: 09/02/2004)
37 MOTION for Clerk's Entry of Default against Dave Thomas, Elizabeth Conley, Janssen Williams, Paul Church on behalf of Plaintiff Mohamed A. El−Tabech (TJS ) (Entered: 09/20/2004)
38 AFFIDAVIT of MoHamed A. El−Tabech on behalf of Plaintiff Mohamed A. El−Tabech (TJS, ) (Entered: 09/20/2004)
39 MOTION for Default Judgment against Dave Thomas, Elizabeth Conley, Janssen Williams and Paul Church on behalf of Plaintiff Mohamed A. El−Tabech (TJS, ) (Entered: 09/20/2004)
40 BRIEF In Support of Motion for Default Judgment 39 on behalf of Plaintiff Mohamed A. El−Tabech (TJS, ) (Entered: 09/20/2004)
41 MOTION to Dismiss Complaint by Attorney Travis P. O'Gorman on behalf of Defendants Elizabeth Conley, Dave Thomas, Janssen Williams (O'Gorman, Travis) (Entered: 10/01/2004)
42 STRICKEN − BRIEF In Support of Motion to Dismiss 41 Complaint by Attorney Travis P. O'Gorman on behalf of Defendants Elizabeth Conley, Dave Thomas, Janssen Williams (O'Gorman, Travis) Modified on 10/4/2004 to reflect striking of document per 43 (TJS). (Entered: 10/01/2004)
43 ORDER striking Brief 42 filed by Janssen Williams, Elizabeth Conley, Dave Thomas; incomplete PDF attached. Signed by Magistrate Judge F. A. Gossett on 10/4/2004. (TJS, ) (Entered: 10/04/2004)
44 MOTION for Leave to File Brief Outside of Time by Attorney Travis P. O'Gorman on behalf of Defendants Elizabeth Conley, Dave Thomas, Janssen Williams (Attachments: # 1)(O'Gorman, Travis) (Entered: 10/04/2004)
45 MOTION to Dismiss by Attorney Eileen L. McBride on behalf of Defendants Francis Britten, Mary Carmichael, Harold Clarke, Randy Cole, Mike Kenney, Douglas Sell (McBride, Eileen) (Entered: 10/04/2004)
46 BRIEF In Support of Motion to Dismiss 41 Complaint by Attorney Travis P. O'Gorman on behalf of Defendants Elizabeth Conley, Dave Thomas, Janssen Williams (O'Gorman, Travis) (Entered: 10/04/2004)
47 BRIEF In Support Of Motion to Dismiss 45 by Attorney Eileen L. McBride on behalf of Defendants Francis Britten, Mary Carmichael, Harold Clarke, Randy Cole, Mike Kenney, Douglas Sell (McBride, Eileen) (Entered: 10/04/2004)
49 MOTION to Extend time to respond to MOTION to Dismiss 45 filed by pro se Plaintiff Mohamed A. El−Tabech (JSF) (Entered: 10/26/2004)

10/26/2004 11/01/2004 11/03/2004 11/04/2004
11/18/2004 11/18/2004 11/24/2004 11/30/2004 12/14/2004 03/07/2005 05/31/2005 05/31/2005 06/02/2005
06/03/2005 06/03/2005

48 BRIEF In Opposition to Motion to Dismiss 45 on behalf of Plaintiff Mohamed A. El−Tabech (Attachments: # 1)(TJS, ) (Entered: 10/26/2004)
50 MOTION for Temporary Restraining Order on behalf of Plaintiff Mohamed A. El−Tabech (ADB) (Entered: 11/02/2004)
52 PARTIAL FILING fee paid on behalf of Mohamed A. El−Tabech on 11/3/2004. Receipt number 406346, in the amount of $ 4.00. (GJG, ) (Entered: 11/04/2004)
51 MEMORANDUM AND ORDER − That 37 39 , the plaintiff's motions for clerk's entry of default and default judgment, are denied. That 44 , the motion by defendants−Elizabeth Conley, Dave Thomas,and Janssen Williams for additional time to file their brief, is granted, and the brief(attachment to filing no. 44) is accepted for filing instanter. That 49 , the plaintiff's Motion for Enlargement of Time, is granted. That 50 , the plaintiff's Motion for a TRO, is denied, without prejudiceto reassertion of the motion accompanied by a Certificate of Service demonstrating deliveryof a copy of the motion by first−class mail to all defendants. Signed by Judge Joseph F. Bataillon on 11/4/2004. (JAE, ) (Entered: 11/04/2004)
53 BRIEF In Opposition to Motion to Dismiss 45 on behalf of Plaintiff Mohamed A. El−Tabech (Attachments: # 1 # 2)(KBJ) (Entered: 11/19/2004)
54 BRIEF In Opposition to Motion to Dismiss 45 on behalf of Plaintiff Mohamed A. El−Tabech (KBJ) (Entered: 11/19/2004)
55 BRIEF In support of Supplemental Brief in Support of Motion to Dismiss by Attorney Eileen L. McBride on behalf of Defendants Francis Britten, Mary Carmichael, Harold Clarke, Randy Cole, Mike Kenney, Douglas Sell (McBride, Eileen) (Entered: 11/24/2004)
56 RENEWED MOTION for Default Judgment against Paul Church on behalf of Plaintiff Mohamed A. El−Tabech.(ADB) (Entered: 12/01/2004)
57 MOTION to Strike Defendants' Supplemental Brief 55 in support of Motion to Dismiss, on behalf of Plaintiff Mohamed A. El−Tabech (JAE, ) (Entered: 12/14/2004)
58 PARTIAL FILING fee paid on behalf of Mohamed El−Tabech on 3/7/2005. Receipt number 406677, in the amount of $8.00. (GJG, ) (Entered: 03/07/2005)
59 MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order on behalf of Plaintiff Mohamed A. El−Tabech.(ADB) (Entered: 06/01/2005)
60 MOTION to Substitute Party Robert P. Houston for Harold Clarke on behalf of Plaintiff Mohamed A. El−Tabech.(ADB) (Entered: 06/01/2005)
61 MEMORANDUM AND ORDER − That the Plaintiff's Motion to Substitute Party 60 is granted. Mr. Robert Houston added. By 6/30/05, the defendants shall respond to the plaintiff's Motion for Preliminary Injunction, and Motion for TRO 59 . By 7/15/05, unless a timely motion for extension of time is granted, the plaintiff may reply to the defendants' response. Signed by Judge Joseph F. Bataillon on 6/2/2005. (KBJ) Modified on 6/3/2005 to edit the text to reflect that Mr. Harold Clarke is a party. There was not a substitution of Mr. Clarke for Mr. Houston; but an addition of Mr. Robert Houston (KBJ). (Entered: 06/02/2005)
Remark − Public: Mr. Harold Clarke is NOT terminated as a party; Mr. Robert Houston is added. There is no substitution of parties per JLG and the Memorandum and Order 61 (KBJ) (Entered: 06/03/2005)
NOTICE of Docket Text Modification by Deputy Clerk regarding 61 MEMORANDUM AND ORDER − That the Plaintiff's Motion to Substitute Party 60 is granted. Mr. Robert Houston added. By 6/30/05, the defendants shall respond to the plaintiff's Motion for Preliminary Injunction, and Motion for TRO 59 . By 7/15/05, unless a timely motion for extension of time is granted, the plaintiff may reply to the defendants' response. Signed by Judge Joseph F. Bataillon on 6/2/2005. (KBJ) Modified on 6/3/2005 to edit the text to reflect that Mr. Harold Clarke is a party. There was not a substitution of Mr. Clarke for Mr. Houston; but an addition of Mr. Robert

06/08/2005 06/08/2005
06/30/2005 06/30/2005 07/15/2005 07/22/2005 07/25/2005 07/28/2005 08/04/2005 08/08/2005 08/31/2005

Houston (KBJ). (Entered: 06/03/2005)
62 NOTICE of Appearance Joint Motion to Withdraw and Entry of Appearance by Attorney Eileen L. McBride on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole (McBride, Eileen) (Entered: 06/08/2005)
63 ORDER regarding Notice of Appearance 62 . The withdrawal of the appearance byDefendant's attorney Eileen L. McBride is approved and the entry of appearance by Timothy P. Sullivan on behalf of Defendants is recognized and approved. Attorney Timothy P. Sullivan added for Harold Clarke; Mike Kenney; Francis Britten; Randy Cole; Douglas Sell and Mary Carmichael. Attorney Eileen L. McBride terminated. Signed by Magistrate Judge F. A. Gossett on 6/8/2005. (JAR) (Entered: 06/08/2005)
64 RESPONSE Defendants' Brief in Response to Plaintiff's Motion for a Preliminary Injunction and Temporary Restraining Order by Attorney Timothy P. Sullivan on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Sullivan, Timothy) (Entered: 06/30/2005)
65 OBJECTION TO PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION AND A TEMPORARY RESTRAINING ORDER by Attorney Travis P. O'Gorman on behalf of Defendants Elizabeth Conley, Janssen Williams, Dave Thomas(O'Gorman, Travis) (Entered: 06/30/2005)
66 REPLY to Defendants' Response 64 filed by pro se Plaintiff Mohamed A. El−Tabech(JSF) (Entered: 07/18/2005)
67 MOTION to Depose a Person Confined in Prison by Attorney Travis P. O'Gorman on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole, Elizabeth Conley, Janssen Williams, Dave Thomas(O'Gorman, Travis) (Entered: 07/22/2005)
68 ORDER granting 67 Motion to depose a person confined in prison. Defendants are granted leave of court to take the deposition of the plaintiff Mohamed A. El Tabech on 8/16/05 at 1:00 p.m. Signed by Magistrate Judge F. A. Gossett on 7/25/2005. (JSF) (Entered: 07/25/2005)
69 OBJECTION to motion to depose a person confined in prison, on behalf of Plaintiff Mohamed A. El−Tabech. Postmark on envelope − 7/27/05. (JAE, ) (Entered: 07/29/2005)
70 PARTIAL PRISONER FILING fee paid on behalf of Mohamed A. El−Tabech on 8/4/2005. Receipt number 407090, in the amount of $ 20.00. (GJG, ) (Entered: 08/04/2005)
71 OBJECTION to Order 68 on behalf of Plaintiff Mohamed A. El−Tabech.(ADB) (Entered: 08/22/2005)
72 MEMORANDUM AND ORDER − The Motion to Dismiss 41 filed by defendants−ElizabethConley, M.D., Janssen Williams, M.D. and Dave Thomas (collectively "medicaldefendants"), is granted, and those defendants are dismissed from this litigation; the plaintiff's claims arising under the federal civil rights laws against defendants−Conley, Williams and Thomas are dismissed with prejudice; any claims arising under state law against those defendants are dismissed without prejudice. The Motion to Dismiss 45 filed by defendants−Francis Britten,Mary Carmichael, Harold W. Clarke, Randy Cole, Michael Kenney and Douglas Sell(collectively "DCS defendants"), is granted in part and denied in part as set forth in this Memorandum and Order. The plaintiff's Motion for Default Judgment against Defendant Paul Church 56 is denied. The plaintiff's Motion to Strike Defendants' Supplemental Brief 57 is denied, and leave to file the brief is granted nunc pro tunc. The plaintiff's Motion for a Preliminary Injunction 59 is denied. The Objection to Motion for Preliminary Injunction 65 filed bythe medical defendants is granted insofar as the objection is consistent with this Memorandum and Order. The plaintiff's Objection to Motion to Depose a Confined Person 69 is denied. The plaintiff's Objection to Order granting the Motion to Depose a Confined Person 71 is denied. Magistrate Judge Gossett is requested to enter an Order Setting a Schedule for the Progression of this case. Signed by Judge Joseph F. Bataillon on 8/31/2005. (KBJ)

09/01/2005
09/08/2005 09/08/2005 09/08/2005 09/08/2005 09/09/2005 09/12/2005 09/14/2005
09/14/2005
09/15/2005 09/23/2005 09/29/2005 09/30/2005 09/30/2005

(Entered: 09/01/2005)
73 ORDER SETTING SCHEDULE FOR PROGRESSION OF CASE − The Deposition deadline is set for 3/15/06; Pretrial Conference will be handled in writing and Mr. Timothy P. Sullivan shall submit the proposed order of Final Pretrial Conference to the court by no later than 9/29/06. Trial will be set by futher order of the court. The plaintiff shall keep the court informed of the plaintiff's address at all times while this case is pending. Signed by Magistrate Judge F. A. Gossett on 9/1/2005. (KBJ) (Entered: 09/01/2005)
74 MOTION to Appoint Counsel on behalf of Plaintiff Mohamed A. El−Tabech(TJS ) (Entered: 09/09/2005)
75 MOTION to Certify Class on behalf of Plaintiff Mohamed A. El−Tabech(TJS, ) (Entered: 09/09/2005)
76 MOTION for Reconsideration regarding Memorandum and Order 72 on behalf of Plaintiff Mohamed A. El−Tabech(TJS) (Entered: 09/09/2005)
79 MOTION to Progress on behalf of Plaintiff Mohamed A. El−Tabech.(ADB) Modified on 10/4/2005. When viewing the original document with the PDF header option turned on, the header appears in the middle of the document. Resaved and attached new PDF on 10/04/05(AST). (Entered: 09/13/2005)
77 BRIEF Motion to Appoint Counsel 74 Brief in Response to Plaintiff's Motion for Appointment of Counsel by Attorney Timothy P. Sullivan on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Sullivan, Timothy) (Entered: 09/09/2005)
78 PARTIAL PRISONER FILING fee paid on behalf of Mohamed A. El−Tabech on 9/12/2005. Receipt number 407205, in the amount of $ 10.00. (GJG, ) (Entered: 09/13/2005)
80 MOTION for Temporary Restraining Order and for a Preliminary Injunction, on behalf of Plaintiff Mohamed A. El−Tabech. Postmark on envelope − 9/13/05. (Attachments: # 1)(JAE, ) Modified on 10/5/2005, When viewing the original document with the PDF header option turned on, the header appears in the middle of the document. Resaved and attached new PDF on 10/05/05. (AST) (Entered: 09/15/2005)
81 AFFIDAVIT of Mohamed A. El−Tabech regarding MOTION for Temporary Restraining Order and for a Preliminary Injunction 80 on behalf of Plaintiff Mohamed A. El−Tabech(JAE, ) Modified on 10/5/2005, When viewing the original document with the PDF header option turned on, the header appears in the middle of the document. Resaved and attached new PDF on 10/05/05. (AST) (Entered: 09/15/2005)
82 ANSWER to Complaint by Attorney Timothy P. Sullivan on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Sullivan, Timothy) (Entered: 09/15/2005)
83 ORDER denying 74 Motion to Appoint Counsel. Signed by Magistrate Judge F. A. Gossett on 9/23/2005. (ADB ) (Entered: 09/26/2005)
84 BRIEF In Opposition to Defendants' Brief in Opposition to Plaintiff's Motion for Class Certification by Attorney Timothy P. Sullivan on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Sullivan, Timothy) (Entered: 09/29/2005)
85 BRIEF Defendants' Brief in Response to Plaintiff's Motion for a Preliminary Injunction and Temporary Restraining Order by Attorney Timothy P. Sullivan on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Sullivan, Timothy) (Entered: 09/30/2005)
86 INDEX In support of Index of Evidence in Support of Defendants' Brief in Response to Plaintiff's Motion for a Preliminary Injunction and Temporary Restraining Order by Attorney Timothy P. Sullivan on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole (Attachments: # 1 Exhibit 1)(Sullivan, Timothy) (Entered: 09/30/2005)

10/04/2005
10/05/2005
10/05/2005
10/12/2005 10/12/2005 10/12/2005 01/10/2006 01/19/2006 01/19/2006 02/13/2006 02/27/2006 02/28/2006 03/13/2006 03/13/2006 03/15/2006

NOTICE of Docket Text Modification by Deputy Clerk regarding 79 MOTION to Progress on behalf of Plaintiff Mohamed A. El−Tabech.(ADB) Modified on 10/4/2005. When viewing the original document with the PDF header option turned on, the header appears in the middle of the document. Resaved and attached new PDF on 10/04/05(AST). (Entered: 09/13/2005) (Entered: 10/04/2005)
NOTICE of Docket Text Modification by Deputy Clerk regarding 80 MOTION for Temporary Restraining Order and for a Preliminary Injunction, on behalf of Plaintiff Mohamed A. El−Tabech. Postmark on envelope − 9/13/05. (Attachments: # 1)(JAE, ) Modified on 10/5/2005, When viewing the original document with the PDF header option turned on, the header appears in the middle of the document. Resaved and attached new PDF on 10/05/05. (AST) (Entered: 09/15/2005) (Entered: 10/05/2005)
NOTICE of Docket Text Modification by Deputy Clerk regarding 81 AFFIDAVIT of Mohamed A. El−Tabech regarding MOTION for Temporary Restraining Order and for a Preliminary Injunction 80 on behalf of Plaintiff Mohamed A. El−Tabech(JAE, ) Modified on 10/5/2005, When viewing the original document with the PDF header option turned on, the header appears in the middle of the document. Resaved and attached new PDF on 10/05/05. (AST) (Entered: 09/15/2005) (Entered: 10/05/2005)
87 BRIEF in reply to Defendants Brief in Response to Plaintiff's Motion for a Preliminary Injunction and Temporary Restraining Order, 85 on behalf of Plaintiff Mohamed A. El−Tabech(PCV, ) (Entered: 10/12/2005)
88 INDEX of Evidence in Support of Plaintiff's Brief in Response to Plaintiff's Motion for a Preliminary Injunction and Temporary Restraining Order 87 on behalf of Plaintiff Mohamed A. El−Tabech(PCV, ) (Entered: 10/12/2005)
89 AFFIDAVIT of Mohamed A. El−Tabech on behalf of Plaintiff Mohamed A. El−Tabech(PCV, ) (Entered: 10/12/2005)
90 PARTIAL FILING fee paid on behalf of Mohamed A. El−Tabech on 1/10/2006. Receipt number 407607, in the amount of $ 6.00. (JAR) (Entered: 01/10/2006)
91 MOTION to Withdraw as Attorney Motion to Withdraw and Entry of Appearance by Attorney Kimberley R. Taylor−Riley on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Taylor−Riley, Kimberley) (Entered: 01/19/2006)
92 ORDER − The Motion to withdrawal as attorney 91 filed by Timothy Sullivan is granted; the entry of appearance by Kimberley Taylor−Riley, on behalf of defendants is recognized and approved. Signed by Magistrate Judge F. A. Gossett on 1/19/2006. (KBJ) (Entered: 01/19/2006)
93 MOTION for ruling regarding MOTION to Certify Class 75 , and MOTION for Reconsideration 76 filed by Plaintiff Mohamed A. El−Tabech(KBJ) (Entered: 02/24/2006)
94 MOTION to Withdraw as Attorney Joint Motion to Withdraw and Entry of Appearance by Attorney Kimberley R. Taylor−Riley on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Taylor−Riley, Kimberley) (Entered: 02/27/2006)
95 ORDER granting 94 Defendants' attorney Kimberley Taylor−Riley's Motion to Withdraw as Attorney. The entry of appearance by David M. Handley on behalf of the defendants is recognized and approved. Signed by Magistrate Judge F. A. Gossett on 2/28/2006. (JSF) (Entered: 02/28/2006)
96 NOTICE of Appearance by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech (Jensen, Marnie) (Entered: 03/13/2006)
97 NOTICE of Appearance by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech (Summerlin, V.) (Entered: 03/13/2006)
98 MOTION to Extend All Dates in Order Setting Schedule for Progression of Case by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech(Jensen, Marnie) (Entered: 03/15/2006)

03/16/2006 04/14/2006 05/01/2006 05/01/2006 05/08/2006 05/26/2006 05/26/2006 05/26/2006 06/06/2006
06/07/2006 06/08/2006 06/08/2006 06/08/2006

99 OBJECTION TO PLAINTIFF'S MOTION TO EXTEND ALL DATES IN ORDER SETTING SCHEDULE FOR PROGRESSION OF CASE by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) (Entered: 03/16/2006)
PARTIAL FILING fee paid on behalf of Mohamed El−Tabech on 4/14/2006. Receipt number 4−208, in the amount of $ 10.00. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (JAR) (Entered: 04/14/2006)
100 MOTION for Leave To File Amended Complaint by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech (Attachments: # 1)(Jensen, Marnie) (Entered: 05/01/2006)
101 BRIEF Support of MOTION for Leave To File Amended Complaint 100 by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech(Jensen, Marnie) (Entered: 05/01/2006)
102 OBJECTION to Plaintiff's Motion to Amend Complaint and Add Parties by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) (Entered: 05/08/2006)
103 MOTION for Protective Order and Return of Privileged Materials by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech(Jensen, Marnie) (Entered: 05/26/2006)
104 BRIEF In Support of MOTION for Protective Order and Return of Privileged Materials 103 by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech(Jensen, Marnie) (Entered: 05/26/2006)
105 INDEX In Support of MOTION for Protective Order and Return of Privileged Materials 103 by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech (Attachments: # 1 Exhibit 1−3)(Jensen, Marnie) (Entered: 05/26/2006)
107 ORDER denying 75 Motion to Certify Class; granting in part and denying in part 76 Motion for Reconsideration, i.e., the plaintiff's due process claim is reinstated but his claims against Conley, Williams, and Thomas are not; granting 79 Motion to Progress; denying 80 Motion for TRO and Preliminary Injunction; granting 93 Motion for Ruling; granting 98 Motion to Extend dates and directing Magistrate Judge Gossett to issue an amended progresion order; denying Motion 99 to extend dates in the progression order; granting Motion 100 for leave to file an amended complaint, accepting for filing instanter the amended complaint attached to 100 , but directing plaintiff to file the amended complaint as a new filing, separate from 100 ; and denying 102 defendants' Objection to motion to amend complaint. Signed by Judge Joseph F. Bataillon on 6/6/2006. (MTB, ) (Entered: 06/07/2006)
106 STRICKEN − MOTION for Extension of Time to File Answer Motion for Enlargement of Time to File a Response by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) Modified on 6/8/2006 to add "stricken" text pursuant to Order 8 . (JAR) (Entered: 06/07/2006)
108 STRIKE ORDER that Pursuant to General Order Number 2006−01, the Motion for Extension of Time to File Answer, 106 is stricken for the following reason: incomplete document. Party is directed to re−file the document. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. Signed by Deputy Clerk on 6/8/2006. (JAR) (Entered: 06/08/2006)
109 MOTION for Extension of Time to File Answer Motion for Enlargement of Time to File a Response by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) (Entered: 06/08/2006)
PARTIAL FILING fee paid on behalf of Mohamed El−Tabech on 6/8/2006. Receipt number 4−364, in the amount of $ 30.00. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (JAR) (Entered: 06/08/2006)

06/09/2006 06/12/2006 06/12/2006 06/13/2006 06/22/2006 06/22/2006
06/29/2006 06/30/2006
07/11/2006

110 AMENDED COMPLAINT against Defendant all defendants, by Attorney Marnie A. Jensen on behalf of Mohamed A. El−Tabech(Jensen, Marnie) (Entered: 06/09/2006)
111 MEMORANDUM AND ORDER − The Motion for an Extension of Time 109 to respond to the Motion for a Protective Order 103 is granted insofar as the defendants shall have the requested extension of time until June 22, 2006 to respond. Instead of the requested in camera hearing, however, I direct the parties' attorneys to find some realistic and reasonable solution to the problem of identifying the plaintiff's attorney−client privileged material for whatever level of protection such material is to be afforded in future searches of the plaintiff's cell. Signed by Magistrate Judge F. A. Gossett on 6/12/2006. (KBJ) (Entered: 06/12/2006)
112 MOTION to Extend Motion for Enlargement of Time to File Amended Answer by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) (Entered: 06/12/2006)
113 ORDER denying 112 Motion to Extend. Signed by Magistrate Judge F. A. Gossett on 6/13/2006. (ADB) (Entered: 06/13/2006)
114 RESPONSE regarding MOTION for Protective Order and Return of Privileged Materials 103 Response to Motion for Return of Privileged Materials and for Protective Order by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) (Entered: 06/22/2006)
115 INDEX in Support of Defendants' Response to Motion for Return of Privileged Materials and for Protective Order Response, 114 by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3 # 4 Exhibit 4 # 5 Exhibit 5 # 6 Exhibit 6 # 7 Exhibit 7 # 8 Exhibit 8 # 9 Exhibit 9 # 10 Exhibit 10 # 11 Exhibit 11 # 12 Exhibit 12 # 13 Exhibit 13 # 14 Exhibit 14 # 15 Exhibit 15 # 16 Exhibit 16 # 17 Exhibit 17)(Handley, David) (Entered: 06/22/2006)
116 ANSWER to Amended Complaint Answer to the Amended Complaint by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole Amended Complaint 110 filed by Mohamed A. El−Tabech, (Handley, David) (Entered: 06/29/2006)
117 INDEX in Support of Index,, 115 Supplemental Evidence Index in Support of Defendants' Response to Motion for Return of Privileged Materials and for Protective Order by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole (Attachments: # 1 Exhibit 18 # 2 Exhibit 19 # 3 Exhibit 20 # 4 Exhibit 21)(Handley, David) (Entered: 06/30/2006)
118 ORDER SETTING SCHEDULE FOR PROGRESSION OF A CIVIL CASE − Depositions due 9/28/06. Planning Conference set for 9/28/2006 at 09:30 AM in Chambers before the undersigned Magistrate Judge. Trial in this matter will be set by

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10/02/2006 10/06/2006 11/08/2006 11/08/2006 11/09/2006 11/16/2006 11/17/2006 11/29/2006 11/29/2006

further order of the court. Signed by Magistrate Judge F. A. Gossett on 7/11/2006. (KBJ) Modified on 7/12/2006 to edit text (KBJ). (Entered: 07/11/2006)
119 Joint MOTION to Extend Dates in Order Setting Schedule for Progression of Case by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech(Jensen, Marnie) (Entered: 08/28/2006)
120 SECOND AMENDED ORDER SETTING SCHEDULE FOR PROGRESSION OF CASE; granting 119 Motion to Extend; deposition deadline December 27, 2006; pretrial conference set for May 3, 2007 at 10:00a.m.; non−jury trial set for May 21, 2007 at 8:30a.m. Ordered Magistrate by Judge F. A. Gossett.(PCV, ) (Entered: 09/25/2006)
121 STIPULATION by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) (Entered: 09/27/2006)
122 ORDER − Pursuant to the Stipulation 121 ; The files of the State of Nebraska Department of Correctional Services (DCS) concerning Mohamed A. El−Tabech, #36752 and maintained pursuant to Neb. Rev. Stat. 83−178 (1994), be made available for inspection by Gene Summerlin, Marnie Jensen, and Justin Firestone, Attorneys at Law, of Ogborn, Summerlin & Ogborn, P.C., under the following conditions set forth in this Order. The entry into this Stipulation by the parties in no way relieves either party from complying with the Federal Rules of Civil Procedure. Ordered by Magistrate Judge F. A. Gossett. (KBJ) (Entered: 09/28/2006)
PARTIAL PRISONER FILING fee paid on behalf of Mohamed El−Tabech on 10/2/2006. Receipt number 4−735, in the amount of $ 11.00. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (GJG, ) (Entered: 10/03/2006)
123 Certificate of Service by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) (Entered: 10/06/2006)
124 Certificate of Serving Defendants' First Set of Interrogatories to Plaintiff by Attorney David M. Handley on behalf of Defendant Harold Clarke(Handley, David) (Entered: 11/08/2006)
125 Certificate of Serving Defendants' First Set of Requests for Production by Attorney David M. Handley on behalf of Defendant Harold Clarke(Handley, David) (Entered: 11/08/2006)
PARTIAL FILING fee paid on behalf of Mohamed El−Tabech on 11/9/06. Receipt number 4−863, in the amount of $ 4.00. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (JAE, ) (Entered: 11/13/2006)
126 MOTION to Withdraw as Attorney Joint Motion to Withdraw and Entry of Appearance by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Handley, David) (Entered: 11/16/2006)
127 Mail Returned as Undeliverable addressed to David Handley regarding MOTION to Withdraw as Attorney Joint Motion to Withdraw and Entry of Appearance 126 . Attorney no longer at firm. E−mail not resent. Notice has been turned off.(KMG) (Entered: 11/17/2006)
128 MEMORANDUM AND ORDER − The Plaintiff's Motion for Protective Order and Return of Privileged Materials 103 is denied as moot for the reason set forth in this Order. Ordered by Magistrate Judge F. A. Gossett. (KBJ) (Entered: 11/29/2006)
129 TEXT ORDER − granting 126 Motion to Withdraw as Attorney and Entry of Appearance by Attorney David M. Handley on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole. Attorney Linda L. Willard for defendants added. Attorney David M. Handley terminated. Ordered by Magistrate Judge F.A. Gossett. (KBJ) (Entered: 11/29/2006)

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01/09/2007 01/11/2007 02/15/2007 02/21/2007 02/22/2007 02/27/2007

130 Joint MOTION to Extend Dates in Order Setting Schedule for Progression of Case by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech(Jensen, Marnie) (Entered: 12/08/2006)
131 NOTICE of Appearance of Justin Firestone by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech (Summerlin, V.) (Entered: 12/15/2006)
132 NOTICE of Serving Discovery Responses by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech (Summerlin, V.) (Entered: 12/15/2006)
133 ORDER granting in part and denying in part Motion to Extend Dates 130 of the Second Amended Progression Order 120 . Trial shall remain as scheduled. All other dates will be rescheduled as set forth in this Order. Ordered by Magistrate Judge F. A. Gossett. (KBJ) (Entered: 12/19/2006)
134 Joint MOTION to Withdraw as Attorney and Entry of Appearance by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Works, Matthew) (Entered: 12/21/2006)
135 TEXT ORDER granting 134 Motion to Withdraw as Attorney and Entry of Appearance. Ordered by Magistrate Judge F. A. Gossett.(JSF) (Entered: 12/27/2006)
136 TEXT MINUTE ENTRY for in chambers proceedings held on 12/28/2006 before Judge F.A. Gossett. Counsel for the parties, M. Jensen and M.Works, appeared telephonically. Status of case reviewed. Parties to submit a proposed order. (ARL,) (Entered: 12/28/2006)
137 Joint MOTION to Extend Dates by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech(Jensen, Marnie) (Entered: 12/28/2006)
TEXT ENTRY THAT A PARTIAL FILING fee paid on behalf of Mohamed El−Tabech on 12/29/2006. Receipt number 4−992, in the amount of $ 20.00. (GJG, ) (Entered: 12/29/2006)
138 ORDER granting 137 Motion to Extend. All fact depositions shall be completed by March 16, 2007. The Final Pretrial Conference is set for Thursday, May 3, 2007 at 10:00 a.m., in2chambers, Suite 2210, Roman L. Hruska United States Courthouse, 111 South 18th Plaza,Omaha, Nebraska. A Non−Jury trial is set to commence at 8:30 a.m. on Monday, May 21, 2007, in Omaha,Nebraska, before the Honorable Joseph F. Bataillon, Chief Judge. Ordered by Magistrate Judge F. A. Gossett.(ADB) (Entered: 01/03/2007)
139 Certificate of Service by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Works, Matthew) (Entered: 01/09/2007)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Mohamed El−Tabech on 1/11/2007. Receipt number 4−1056, in the amount of $ 8.00. (JAR) (Entered: 01/11/2007)
140 Certificate of Service by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole(Works, Matthew) (Entered: 02/15/2007)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Mohamed El−Tabech on 2/21/2007. Receipt number 4−1146, in the amount of $ 10.43. (JAR) (Entered: 02/22/2007)
141 NOTICE to Take Deposition of Steve Vodicka Randy Cole, Francis Britten, Frank Hopkins, Douglas Sell, Robert Houston & Mary Carmichael by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech (Jensen, Marnie) (Entered: 02/22/2007)
142 NOTICE to Take Deposition of Harold Clarke and Mike Kenney by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech (Jensen, Marnie) (Entered: 02/27/2007)

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03/30/2007 04/13/2007
04/17/2007 04/17/2007
04/19/2007
04/24/2007 04/24/2007 04/24/2007
04/26/2007

143 NOTICE to Take Deposition of Steve Vodicka by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech (Jensen, Marnie) (Entered: 03/13/2007)
144 NOTICE re: depositions by Attorney Marnie A. Jensen. (MKR) (Entered: 03/16/2007)
145 MOTION for Summary Judgment (Partial) Fourth Claim for Relief by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 03/27/2007)
146 BRIEF in Support of MOTION for Summary Judgment (Partial) Fourth Claim for Relief 145 by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 03/27/2007)
147 INDEX in Support of MOTION for Summary Judgment (Partial) Fourth Claim for Relief 145 (Exhibits Filed Under Seal) by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 03/27/2007)
149 Joint STIPULATION of Facts by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 03/28/2007)
150 MOTION for Summary Judgment (Partial) First and Second Claims for Relief by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 03/30/2007)
151 BRIEF In Support of MOTION for Summary Judgment (Partial) First and Second Claims for Relief 150 by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech. (Attachments: # 1 Exhibit A)(Jensen, Marnie) (Entered: 03/30/2007)
152 INDEX In Support of MOTION for Summary Judgment (Partial) First and Second Claims for Relief 150 by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 03/30/2007)
156 ORDER. On the court's own motion, the final pretrial conference is rescheduled to Wednesday, May 2, 2007 at 10:00 A.M., before Magistrate Judge David L. Piester in the chambers of the undersigned magistrate judge, Suite 2210, Roman L. Hruska U. S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska. Ordered by Judge F. A. Gossett. (ARL,) (Entered: 04/13/2007)
157 LETTER to the parties regarding the Final Pretrial Conference on 5/2/2007 at 10:00 A.M., before Magistrate Judge David L. Piester. (ARL,) (Entered: 04/17/2007)
158 BRIEF in support of Defendants' Brief in Response to Plaintiff's Motion for Partial Summary Judgment: Fourth Claim for Relief by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 04/17/2007)
159 BRIEF In Opposition to MOTION for Summary Judgment (Partial) First and Second Claims for Relief 150 Defendants' Brief in Response to Plaintiff's Motion for Partial Summary Judgment: Fourth Claim for Relief by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 04/19/2007)
160 REPLY BRIEF In Support Of MOTION for Summary Judgment (Partial) Fourth Claim for Relief 145 by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 04/24/2007)
161 MOTION to Withdraw as Attorney by Attorney Justin W. Firestone on behalf of Plaintiff Mohamed A. El−Tabech.(Firestone, Justin) (Entered: 04/24/2007)
162 ORDER granting 161 Motion to Withdraw as Attorney; IT IS HEREBY ORDERED, that the appearance of Justin Firestone is withdrawn as counsel for the plaintiff. The court will cease further electronic notices to Mr. Firestone in this matter. Ordered by Magistrate Judge F. A. Gossett.(PCV, ) (Entered: 04/24/2007)
163 REPLY BRIEF In Support Of MOTION for Summary Judgment (Partial) First and Second Claims for Relief 150 by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 04/26/2007)

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05/21/2007
05/22/2007
05/22/2007 05/22/2007 07/03/2007

164 INDEX In Support Of MOTION for Summary Judgment (Partial) First and Second Claims for Relief 150 (SUPPLEMENTAL) by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 04/26/2007)
165 PRETRIAL ORDER − estimated length of trial is 3 days; Non−Jury Trial set for 5/21/2007 09:00 AM in Courtroom 3 (Omaha) before Chief Judge Joseph F. Bataillon.Ordered by Magistrate Judge David L. Piester. (JAE, ) (Entered: 05/02/2007)
166 APPLICATION for Writ of Habeas Corpus Ad Testificandum by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 05/10/2007)
167 ORDER granting 166 Application for Writ. IT IS HEREBY ORDERED as follows: (1) Defendants, or anyone in their control in the Nebraska Department of Correctional Services shall transport, or arrange for the transportation of, Plaintiff Mohamed A. El−Tabech to the Roman L. Hruska Federal Courthouse, Courtroom 3, on May 21, 2007 at 8:30 a.m., and each day thereafter as long as trial proceeds; (2) All costs of such transport shall be borne by Defendants. Ordered by Magistrate Judge David L. Piester. (Certified copies to USM)(JAR) (Entered: 05/11/2007)
TEXT ENTRY THAT Writ of Habeas Corpus ad Testificandum Issued as to Mohamed A. El−Tabech. (JAR) (Entered: 05/11/2007)
168 BRIEF in support of Defendants' Trial Brief by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 05/16/2007)
169 NOTICE of Appearance by Attorney Theodore J. Lane on behalf of Plaintiff Mohamed A. El−Tabech (Lane, Theodore) (Entered: 05/16/2007)
170 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech. (Jensen, Marnie) (Entered: 05/16/2007)
171 BRIEF (PRETRIAL) by Attorney Marnie A. Jensen on behalf of Plaintiff Mohamed A. El−Tabech.(Jensen, Marnie) (Entered: 05/16/2007)
172 MEMORANDUM AND ORDER denying 145 & 150 Motions for Summary Judgment. Summary judgment is granted in favor of the defendants on Claim IV, El−Tabechs Due Process Claim, as set forth herein. Trial will proceed on the remaining claims of the amended complaint, Claims I and II, pursuant to the terms of the pretrial order. Ordered by Judge Joseph F. Bataillon.(SMS, ) (Entered: 05/18/2007)
173 TEXT MINUTE ENTRY for Non−Jury Trial Proceedings held before Judge Joseph F. Bataillon in Omaha on 5/21/07. Opening Statements. Evidence by Plaintiff. Witness testimony on behalf of the plaintiff. Hearing held in Omaha. Courtroom Deputy: Kamala B. Jewett; Reporter: Allan Kuhlman; Appearance for Plaintiff: Ms. Marnie A. Jensen and Mr. Theodore J. Lane: Appearance for Defendant: Mr. Matthew Works ; Time Start: 9:15 am Time Stop: 4:30 pm for proceedings held before Judge Joseph F. Bataillon. (KBJ) (Entered: 05/21/2007)
174 TEXT MINUTE ENTRY for Non−Jury Trial proceedings held before Judge Joseph F. Bataillon in Omaha on 5/22/07. Evidence by Plaintiff. Witness testimony on behalf of the plaintiff. Plaintiff rests. Defendant rests. Closing Arguments. Number of trial days with evidence−2. Hearing held in Omaha. Courtroom Deputy: Kamala B. Jewett; Reporter: Allan Kuhlman; Appearance for Plaintiff: Ms. Marnie A. Jensen and Mr. Theodore J. Lane: Appearance for Defendant: Mr. Matthew A. Works; Submitted. Written order forthcoming. Time Start: 9:15 am Time Stop: 12:25 pm (KBJ) (Entered: 05/22/2007)
175 WITNESS LIST from Non−Jury Trial held On May 21−22, 2007. (KBJ) (Entered: 05/24/2007)
176 EXHIBIT LIST from Trial hearing held on 5/21/07−5/22/07. (KBJ) (Entered: 06/01/2007)
177 GENERAL ORDER 2007−09 concerning the management of pro se cases including supervision of pro se staff attorneys. Except for motions filed under 28 U.S.C. § 2255 and except for death penalty cases, Judge Kopf is assigned the overall responsibility

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for the management of pro se cases in the District of Nebraska and all previously filed pro se cases referred to Magistrate Judge Gossett or Magistrate Judge Thalken are herewith reassigned to Magistrate Judge Piester. The clerk's office shall file this order in each pending case referred to the Pro Se Docket in CM/ECF. Ordered by Judge Joseph F. Bataillon. (JSF) (Entered: 07/03/2007)
178 TEXT ORDER The plaintiff is now represented by counsel. At the direction of the Court, this case is removed from the pro se docket. Magistrate Judge Thalken is now assigned to this case based upon the current pairing system for civil cases. This order does not change the assignment of the district judge.Ordered by Judge Richard G. Kopf. (DKM, ) (Entered: 07/06/2007)
179 MEMORANDUM AND ORDER − IT IS ORDERED that 1. Judgment will be entered for the plaintiff against the defendants on plaintiff's amended complaint (Filing No. 110) as set forth herein; 2. The parties are ordered to submit their negotiation results to this court within sixty (60) days as set forth herein; and 3. A separate judgment will be filed on this date in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (KBJ) (Entered: 07/17/2007)
180 JUDGMENT − Pursuant to the Memorandum and Order 179 entered on this date, judgment is entered in favor of the plaintiff and against the defendants. Civil Case Terminated. Ordered by Judge Joseph F. Bataillon. (KBJ) (Entered: 07/17/2007)
181 Joint MOTION for Attorney Fees Deadline Extension by Attorney Theodore J. Lane on behalf of Plaintiff Mohamed A. El−Tabech.(Lane, Theodore) (Entered: 07/23/2007)
182 ORDER − IT IS HEREBY ORDERED as follows: Negotiations between the Parties to determine the kosher dietary option(s) that will be instituted by Nebraska Department of Correctional Services shall conclude within 60 days of the entry of judgment. The Parties will report the result of these negotiations to the Court on or before September 14, 2007. The Plaintiff shall submit an application for attorney fees and costs, as prevailing party pursuant to 42 U.S.C. § 1988, within 14 days of the conclusion of negotiations, or by September 28, 2007, whichever date is earlier. Ordered by Judge Joseph F. Bataillon. (KBJ) (Entered: 07/24/2007)
183 MOTION to Withdraw as Attorney Marnie A. Jensen by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 08/28/2007)
184 ORDER granting 183 Motion to Withdraw as Counsel. Ordered by Judge Thomas D. Thalken.(AMS) (Entered: 08/28/2007)
185 Joint STIPULATION Extending Deadlines for Negotiation and Motion for Attorney's Fees by Attorney Theodore J. Lane on behalf of Plaintiff Mohamed A. El−Tabech.(Lane, Theodore) (Entered: 09/14/2007)
186 ORDER − Defendants shall be granted an additional week to address issues raised by Plaintiff regarding the adequacy of Defendants' plan to provide a kosher diet to Plaintiff as set forth in this Order. In light of this one−week extension to reach a mutual agreement, the deadline for Mr. El−Tabech's motion for attorneys fees and costs 185 will be extended until fourteen days following the conclusion of negotiations, such conclusion being either by stipulation or by order if this Court. Ordered by Judge Joseph F. Bataillon. (KBJ) (Entered: 09/17/2007)
187 Joint STIPULATION on Feasibility of Defendant's Proposed Kosher Diet Option by Attorney Theodore J. Lane on behalf of Plaintiff Mohamed A. El−Tabech. (Attachments: # 1 Submission From Sender Defendant's Kosher Equipment and Meal Preparation Process)(Lane, Theodore) (Entered: 09/21/2007)
188 Joint MOTION to Extend Date for Filing Motion for Costs and Attorney's Fees by Attorney Theodore J. Lane on behalf of Plaintiff Mohamed A. El−Tabech.(Lane, Theodore) (Entered: 10/02/2007)
189 ORDER granting 188 Motion to Extend; the deadline for Plaintiff to file his Motion for Attorneys Fees and Costs is extended from October 5, 2007, to and including December 5, 2007; this extension will allow the parties sufficient time to attempt to reach an agreement on attorneys' fees and costs and, should negotiations fail, for the

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parties to secure the necessary expert opinions in support of or in opposition to the Motion for Attorney's Fees. Ordered by Judge Joseph F. Bataillon.(CJP) (Entered: 10/05/2007)
190 ORDER granting 187 Stipulation; defendants will implement the "Kosher Equipment and Meal Preparation Process" (the "Kosher Process") in compliance with this Court's July 17, 2007 Memorandum and Order to "provid[e] El−Tabech[,] and other prisoners similarly situated" who request a religious diet, with a nutritionally−sufficient kosher diet, in accordance with Nebraska Department of Corrections Services policies and procedures and subject to the following:a. Development and implementation of operational memoranda, protocols, postorders or other similar documents to ensure the adequacy of the Kosher Process to provide kosher meals that are nutritionally sufficient; and the allowance of a person with expertise in the area of kosher diet preparation and service to provide an independent verification of the adequacy of the Kosher Process, once implemented by the Nebraska Department of Corrections Services Food Services Division ("DCSFS"), to meet Defendants' stated commitment to never serve Mr. El−Tabech non−kosher food; the input of this person will be considered by DCSFS to ensure the Kosher Process is adequate. Ordered by Judge Joseph F. Bataillon.(CJP) (Entered: 10/05/2007)
191 MOTION for Attorney Fees and Extension of Date to File Supporting Brief and Index of Evidence by Attorney Ted J. Lane on behalf of Plaintiff Mohamed A. El−Tabech.(Lane, Ted) (Entered: 12/05/2007)
192 ORDER − The Plaintiff's Motion for Attorney's Fees and Costs and Extension of Date to File Brief and Index of Evidence in Support of Motion for Attorney's Fees and Costs 191 is granted. IT IS HEREBY ORDERED that Plaintiff shall file a brief and evidence in support of Motion for Attorney's Fees and Costs on or before December 14, 2007. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 12/05/2007)
193 INDEX in support of Plaintiff's Motion for Attorney's Fees and Costs by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 12/14/2007)
194 BRIEF in support of Plaintiff's Motion for Attorney's Fees and Costs by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 12/14/2007)
195 MOTION to Appoint ad Litem, MOTION to Extend Request for Extension of Time to File Response to Plaintiff's Motion for Attorney Fees by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 12/27/2007)
196 ORDER granting defendants' motion for extension of time, 195 . Defendants shall have until January 31, 2008, to file their brief and index in opposition to plaintiff's motion for fees and costs 191 . Ordered by Chief Judge Joseph F. Bataillon. (JAE, ) (Entered: 01/03/2008)
197 MOTION to Extend REQUEST FOR EXTENSION OF TIME TO FILE RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES MOTION for Attorney Fees and Extension of Date to File Supporting Brief and Index of Evidence 191 by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 01/31/2008)
198 ORDER granting 197 Defendants' Motion to Extend Time until 2/8/2008 to file response to 191 Plaintiff's Motion for Attorney Fees. Ordered by Chief Judge Joseph F. Bataillon. (SMS, ) (Entered: 02/01/2008)
199 RESPONSE to Plaintiff's Motion for Attorney's Fees and Costs by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) Modified on 2/13/2008 to change to a response rather than a motion (JSF). (Entered: 02/08/2008)

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200 BRIEF in support of Defendants' Response to Plaintiff's Motion for Attorney's Fees and Costs by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 02/08/2008)
201 TEXT NOTICE OF INCORRECT EVENT used when filing the Motion for Attorney Fees (Defendant's Response to Plaintiff's Motion for Attorney's Fees and Costs) 199 by Deputy Clerk. In the future, use the event "response" found under civil > other documents > response. (JSF) (Entered: 02/11/2008)
202 REPLY BRIEF in support of MOTION for Attorney Fees and Extension of Date to File Supporting Brief and Index of Evidence 191 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 02/15/2008)
203 MEMORANDUM AND ORDER − Plaintiff's motion for attorneys' fees and costs 191 is granted. Attorney fees in the amount of $196,605.90 are assessed in favor of plaintiff and against defendants. Costs in the amount of $8,380.38 are taxed in favor of a plaintiff and against defendants. A judgment in conformity with this memorandum and order will be entered this date. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 05/06/2008)
204 JUDGMENT − Pursuant to the Memorandum and Order 203 entered on this date, Judgment for attorney fees in the amount of $196,605.90 is entered in favorof the plaintiff and against the defendants. Costs in the amount of $8,380.38 are taxed against defendants. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 05/06/2008)
205 MOTION for Contempt by Attorney Ted J. Lane on behalf of Plaintiff Mohamed A. El−Tabech.(Lane, Ted) (Entered: 08/26/2008)
206 INDEX in support of Motion for Contempt by Attorney Ted J. Lane on behalf of Plaintiff Mohamed A. El−Tabech. (Attachments: # 1 Affidavit Ex. 1 − Aff. of M. El−tabech, # 2 Exhibit Ex. 1−A Daily Meal Log (pp 1−10), # 3 Exhibit Ex 1−A − Daily Meal Log (pp 11−22))(Lane, Ted) (Entered: 08/26/2008)
207 INDEX − CONTINUED in support of Motion for Contempt by Attorney Ted J. Lane on behalf of Plaintiff Mohamed A. El−Tabech. (Attachments: # 1 Exhibit 1−A Daily Meal Log (pp 23−33), # 2 Exhibit 1−A Daily Meal Log (pp 34−42), # 3 Exhibit 1−B Canteen Receipts)(Lane, Ted) (Entered: 08/26/2008)
208 INDEX − CONTINUED in support of Motion for Contempt by Attorney Ted J. Lane on behalf of Plaintiff Mohamed A. El−Tabech. (Attachments: # 1 Exhibit 1−C Grievance 2008−2987, # 2 Exhibit 1−D Torn Prayer Schedule, # 3 Exhibit 1−D Prayer Disruption Log, # 4 Exhibit 1−F Non−Kosher Cereal Labels, # 5 Exhibit 1−G Milk Carton, # 6 Exhibit 1−H − Anonymous Letter, # 7 Exhibit 1−I − KITE (July 6, 2008), # 8 Affidavit Ex 2 − Aff. of T. Lane, # 9 Exhibit 3 − Food Service Safety & Sanitation, # 10 Exhibit 4 − Food Service Menu Planning, # 11 Exhibit 5 − Evidence Handling Procedures, # 12 Exhibit 6 − Kosher Protocol 1−01, # 13 Exhibit 7 − Kosher Protocol 1−02, # 14 Exhibit 8 − Letter from Rabbi Gross, # 15 Exhibit 9 − GoodSource Product Information, # 16 Exhibit 10 − 2008 Islamic Prayer Schedule)(Lane, Ted) (Entered: 08/26/2008)
209 BRIEF in support of MOTION for Contempt 205 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 08/26/2008)
210 ORDER Setting Hearing on MOTION for Contempt 205 : Motion Hearing set for 10/8/2008 03:30 PM in Courtroom 3 − Omaha before Chief Judge Joseph F. Bataillon. Both counsel for the plaintiff and the defendants will be participating by phone. Plaintiff El−Tabech will not be present for this hearing. Ordered by Chief Judge Joseph F. Bataillon. (PCV, ) (Entered: 09/23/2008)

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211 ORDER Setting Hearing on Motion for Contempt 205 : on the defendant's oral motion, the Motion Hearing is rescheduled for 10/24/2008 at 10:30 AM before Chief Judge Joseph F. Bataillon. Ordered by Chief Judge Joseph F. Bataillon. (JSF) Modified on 10/6/2008 to remove language indicating a copy was mailed to pro se party (JSF). (Entered: 10/06/2008)
212 MOTION for Relief under Fed R Civ P 69 or 70 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 10/21/2008)
213 INDEX in support of MOTION for Relief under Fed R Civ P 69 or 70 212 with Exhibits by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 10/21/2008)
214 BRIEF in support of MOTION for Relief under Fed R Civ P 69 or 70 212 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 10/21/2008)
215 BRIEF in opposition to Brief 209 Brief in Opposition to Plaintiff's Motion for Contempt by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten.(Works, Matthew) (Entered: 10/23/2008)
216 INDEX in opposition to Brief, 215 Index of Evidence in Opposition to Plaintiff's Motion for Contempt by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten. (Attachments: # 1 Exhibit 1 and Ex. A, # 2 Exhibit 2 − Affidavit of Scott Busboom, # 3 Exhibit 3 − Affidavit of Brian Kirkendall, # 4 Exhibit 4 − Affidavit of Dawn−Renee Smith and Ex. A & Ex. B, # 5 Exhibit 5 − Aff. of Dawn−Renee Smith and Ex. A & Ex. B, # 6 Exhibit 6 − Affidavit of Teresa Kalin)(Works, Matthew) (Entered: 10/23/2008)
217 OBJECTION to Motion for Miscellaneous Relief 205 and Objection to Defendants' Brief and Index of Evidence by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 10/23/2008)
218 TEXT MINUTE ENTRY for proceedings held before Chief Judge Joseph F. Bataillon Motion Hearing held on 10/24/2008 regarding MOTION for Relief under Fed R Civ P 69 or 70 212 , OBJECTION to Motion for Miscellaneous Relief 205 and Objection to Defendants' Brief and Index of Evidence 217 , MOTION for Contempt 205 . Briefs due by 10/31/08 at which time the court will set a hearing if necessary that will allow for oral testimony by the parties. Hearing held in Omaha. Courtroom Deputy: Tracy Slagle; Reporter: Allan Kuhlman; Appearance for Plaintiff: Gene Summerlin and Ted Lane: Appearance for Defendant: Matthew WorksTime Start: 10:35 a.m. Time Stop: 10:55 a.m. (TJS) (Entered: 10/24/2008)
219 Unopposed MOTION to Extend Time to File Reply Brief and Index of Evidence in Support of Motion for Contempt by Attorney Ted J. Lane on behalf of Plaintiff Mohamed A. El−Tabech.(Lane, Ted) (Entered: 10/31/2008)
220 BRIEF in opposition to MOTION for Relief under Fed R Civ P 69 or 70 212 by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten.(Works, Matthew) (Entered: 10/31/2008)
221 INDEX in opposition to MOTION for Relief under Fed R Civ P 69 or 70 212 by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−Ex. A, # 3 Exhibit 2, # 4 Exhibit 3)(Works, Matthew) (Entered: 10/31/2008)
222 ORDER granting 219 Motion to Extend. IT IS HEREBY ORDERED as follows:1. Plaintiff shall file Reply Brief and Index of Evidence in Support of Motionfor Contempt on or before November 7, 2008. Ordered by Chief Judge Joseph F. Bataillon. (PCV, ) (Entered: 10/31/2008)

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223 REPLY BRIEF in support of MOTION for Contempt 205 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 11/06/2008)
224 INDEX in support of MOTION for Contempt 205 (Supplemental) by Attorney Ted J. Lane on behalf of Plaintiff Mohamed A. El−Tabech. (Attachments: # 1 Exhibit 11, # 2 Exhibit 11−A, # 3 Exhibit 11−B, # 4 Exhibit 11−C, # 5 Exhibit 12)(Lane, Ted) (Entered: 11/06/2008)
225 MEMORANDUM AND ORDER − Plaintiff's motion for relief under Fed. R. Civ. P. 69 or 70 212 is granted. Judgment is entered for interest in the amount of $4,839.90 for the period from May 5, 2008, to October 21, 2008, and for $3,017.82 for the period from October 21, 2008, to the date of this order. Interest at the rate of 14% shall accrue on any outstanding judgment from thedate of this order. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 02/05/2009)
226 ORDER 1. Plaintiffs objection to defendants brief and evidence 217 is overruled. 2. Plaintiffs motion for contempt is set for oral argument on February 19, 2009, at 3:00 p.m., Courtroom No. 3, Roman L. Hruska U.S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska. Ordered by Chief Judge Joseph F. Bataillon. (PCV, ) (Entered: 02/12/2009)
227 TEXT MINUTE ENTRY for proceedings held before Chief Judge Joseph F. Bataillon Motion Hearing held on 2/19/2009 regarding MOTION for Contempt 205 . Argument by parties. Motion taken under advisement. Order forthcoming. Hearing held in Omaha. Courtroom Deputy: Tracy Slagle; Reporter: Allan Kuhlman; Appearance for Plaintiff: Gene Summerlin: Appearance for Defendant: Matthew Works; Time Start: 3:10 p.m. Time Stop: 3:32 p.m. (TJS) (Entered: 02/19/2009)
228 ORDER granting 205 Motion for contempt. Defendants are adjudged to be in contempt of court. The courts previous order for injunctive relief on stipulation of the parties 190 is modified as follows: Defendants shall supply the plaintiff Mohamed A. El−Tabech with a nutritionally−sufficient kosher diet that consists of either prepackaged kosher meals or prepackaged kosher foods available in the Tecumseh State Correctional Institution kitchen.The plaintiff is awarded reasonable attorney fees in an amount to be laterdetermined by the court. The plaintiff shall file an application for fees within 14 days of the date of this order; defendants shall have 7 days thereafter in which to respond to the application. Ordered by Chief Judge Joseph F. Bataillon. (PCV, ) (Entered: 03/04/2009)
229 NOTICE OF APPEAL regarding Order on Motion for Miscellaneous Relief,,, 225 by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole. (Works, Matthew) (Entered: 03/06/2009)
TEXT ENTRY THAT APPEAL fee paid by the Nebraska Attorney General with receipt number 4−2913 in the amount of $ 455 regarding Notice of Appeal to USCA, 229 . (JAB) (Entered: 03/06/2009)
230 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Notice of Appeal to USCA, 229 , Order 225 . Notice of Appeal filed on 3/6/09 by Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole. NOTIFICATION TO COUNSEL AND PARTIES − FILE REQUEST FOR TRANSCRIPT WITH THE DISTRICT COURT CLERKS OFFICE.NOTIFICATION TO COUNSEL − SUBMIT FORMS A & B TO EIGHTH CIRCUIT CLERKS OFFICE. (KBJ) (Entered: 03/10/2009)
231 Letter by Clerk USCA − 8th circuit acknowleding reciept of a Notice of Appeal in this matter. (PCV, ) (Entered: 03/11/2009)
232 APPEAL BRIEFING SCHEDULING LETTER from USCA − 8th Circuit as to Notice of Appeal to USCA, 229 ; (PCV, ) (Entered: 03/11/2009)
233 Supplemental MOTION for Attorney Fees by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 03/18/2009)

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234 INDEX in support of Supplemental MOTION for Attorney Fees 233 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 03/18/2009)
235 BRIEF in support of Supplemental MOTION for Attorney Fees 233 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 03/18/2009)
236 RESPONSE Defendants' Response to Plaintiff's Motion for Supplemental Attorney's Fees and Costs by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 04/13/2009)
237 BRIEF in support of Response, 236 Defendants' Resopnse to Plaintiff's Motion for Supplemental Attorney's Fees and Costs by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 04/13/2009)
238 Unopposed MOTION to Extend Time to File Reply Brief in Support of Motion for Attorneys Fees by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 04/20/2009)
239 TEXT ORDER granting 238 Plaintiff's unopposed motion for extension of time until 5/4/2009 to file reply brief in support of 233 Motion for Attorney Fees. Ordered by Chief Judge Joseph F. Bataillon. (SMS, ) (Entered: 04/20/2009)
240 BRIEF in support of Supplemental MOTION for Attorney Fees 233 (Reply Brief) by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 05/10/2009)
241 MOTION to Withdraw as Attorney Joint Motion to Withdraw and Entry of Appearance by Attorney Matthew A. Works on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Works, Matthew) (Entered: 05/29/2009)
242 ORDER − This matter is before the court on Assistant Attorney General Matthew A. Workss motion to withdraw as counsel 241 . Assistant Attorney General Ryan C. Gilbride has entered an appearance. Accordingly, Assistant Attorney General Matthew A. Works's motion to withdraw as counsel 241 is granted. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 06/02/2009)
243 MEMORANDUM AND ORDER − Plaintiff's supplemental motion for attorney's fees 233 is granted. Plaintiff is awarded an additional $73,360.20 in attorney's fees and $271.20 in recoverable costs. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 06/11/2009)
244 JUDGMENT − In accordance with the Memorandum and Order 243 entered on this date, judgment is entered in favor of the plaintiff and against the defendant for additional attorney's fees in connection with plaintiff's motion for contempt 233 , in the amount of $73,360.20 and $271.20 in costs. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 06/11/2009)
245 NOTICE OF APPEAL regarding Order on Motion for Miscellaneous Relief,,,,,,, 228 , Judgment, 244 by Attorney Ryan C. Gilbride on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole. (Gilbride, Ryan) (Entered: 07/07/2009)
TEXT ENTRY THAT APPEAL fee paid by Nebraska Department of Corrections for Defendants regarding Notice of Appeal to USCA, 245 . Receipt number 4−3140 in the amount of $455.00. (JAB) (Entered: 07/07/2009)
246 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Order 228 , Order on Motion for Attorney Fees, 243 , Judgment 244 and Notice of Appeal to USCA, 245 . Notice of Appeal filed on 7/7/09 by Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten and Randy Cole. NOTIFICATION TO COUNSEL AND PARTIES − FILE REQUEST FOR TRANSCRIPT WITH THE DISTRICT COURT CLERKS

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OFFICE. NOTIFICATION TO COUNSEL − SUBMIT FORMS A & B TO EIGHTH CIRCUIT CLERKS OFFICE. (MKR) (Entered: 07/08/2009)
247 SCHEDULING LETTER from USCA − 8th Circuit as to Notice of Appeal to USCA, 245 . (Attachments: # 1 transmittal letter)(KBJ) (Entered: 07/21/2009)
248 TRANSCRIPT (UNREDACTED) of motion for contempt proceedings before Chief Judge Joseph F. Bataillon held on February 19, 2009. Total Number of Billable Pages: 17. Total Number of Pages: 18. The transcript can only be viewed at the courts public terminal or purchased through Court Reporter/Transcriber Allan G. Kuhlman at (402) 661−7305 before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Click here to view the Transcript Redaction Procedure. Redaction Request due 9/8/2009. Redacted Transcript Deadline set for 9/18/2009. Release of Transcript Restriction set for 11/16/2009. (AGK, ) (Entered: 08/18/2009)
249 MOTION to Stay regarding Notice of Appeal to USCA, 245 , Judgment, 244 Motion to Stay Proceedings to Enforce Judgment by Attorney Ryan C. Gilbride on behalf of Defendants Douglas Sell, Mary Carmichael, Robert Houston, Harold Clarke, Mike Kenney, Francis Britten, Randy Cole.(Gilbride, Ryan) (Entered: 08/18/2009)
250 BRIEF in opposition to MOTION to Stay regarding Notice of Appeal to USCA, 245 , Judgment, 244 Motion to Stay Proceedings to Enforce Judgment MOTION to Stay regarding Notice of Appeal to USCA, 245 , Judgment, 244 Motion to Stay Proceedings to Enforce Judgment 249 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 09/01/2009)
251 INDEX in support of Brief, 250 in Opposition to Motion to Stay Proceedings by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 09/01/2009)
252 MEMORANDUM AND ORDER − The defendants' motion for a stay of enforcement of the judgment 249 is denied. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 10/16/2009)
253 MOTION Under Fed.R.Civ.P. 69a or 70 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech. (Attachments: # 1 Exhibit Index of Evidence)(Summerlin, V.) (Entered: 11/20/2009)
254 BRIEF in support of Plaintiff's Motion for Relief under Fed.R.Civ.P. 69a or 70 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 11/20/2009)
255 SURETY BOND in the amount of $ 73,631.40. Bond Company: RLI Insurance Company. Bond filed by Defendants. (GJG) Modified on 11/23/2009 to reflect correct party who filed the bond(GJG). (Entered: 11/23/2009)
256 ORDER − Plaintiff's motion for relief 253 is denied as moot. Ordered by Chief Judge Joseph F. Bataillon. (KBJ) (Entered: 11/23/2009)
257 COPY of Opinion of USCA − 8th Circuit (09−1554 and 09−2691) remanding to district court for further proceedings regarding Notice of Appeal to USCA 229 , Notice of Appeal to USCA 245 . (Attachments: # 1 Cover Letter, # 2 Letter to Publishing)(ADB, ) (Entered: 08/13/2010)
258 COPY of Judgment from USCA − 8th Circuit (09−1554 and 09−2691) that the case is remanded to the district court for proceedings consistent with the opinion of this court. (ADB, ) (Entered: 08/13/2010)
259 Mailed COPY of Order (Judgment) of USCA − 8th Circuit (09−1554 and 09−2691) regarding Notice of Appeal to USCA, 229 , Notice of Appeal to USCA, 245 . Case is remanded to the District Court for further proceedings not inconsistent with the opinion of this court. (GJG) Modified on 8/16/2010 to correct entry (GJG). (Entered: 08/16/2010)

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260 Mailed COPY of Opinion of USCA − 8th Circuit (09−1554 and 09−2691) regarding Notice of Appeal to USCA, 229 , and Notice of Appeal to USCA, 245 remanding case to the District Court for further proceedings not inconsistent with this opinion. (GJG) (Entered: 08/16/2010)
261 Notice by USCA Clerk (09−1554 and 09−2691) instructing attorney Ryan C. Gilbride to respond to appellee's petition for rehearing en banc. (JSF) (Entered: 09/27/2010)
262 COPY of Order from USCA − 8th Circuit(09−1554/09−2691). The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. (JAB) (Entered: 10/21/2010)
263 Amended COPY of Order from USCA − 8th Circuit(09−1554/09−2691). The order entered this date is amended to read as follows: The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Bye would grant the petition for rehearing en banc. (JAB) (Entered: 10/21/2010)
264 MANDATE/JUDGMENT from USCA − 8th Circuit(09−1554/09−2691) remanding to district court for further proceedings regarding Notice of Appeal to USCA, 229 and Notice of Appeal to USCA, 245 . In accordance with the opinion 257 and judgment 258 of 08/13/2010, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above−styled matter. (JAB) (Entered: 10/28/2010)
265 TEXT MINUTE ENTRY for proceedings held before Chief Judge Joseph F. Bataillon. Telephone Conference held on 11/3/2010 in Omaha. Plaintiff to submit a new fee application for outstanding fees by 12/6/2010. Defendant to respond by 12/20/2010. Courtroom Deputy: Jane Fischer; Reporter: Rogene Schroder; Appearance for Plaintiff: Gene Summerlin: Appearance for Defendants: Ryan Gilbride. Written order forthcoming. Time Start: 9:03 am Time Stop: 9:11 am. (JSF) (Entered: 11/03/2010)
266 ORDER − This matter is before the court after a telephonic scheduling conference with the parties after remand from the Eighth Circuit Court of Appeals. IT IS ORDERED: 1. Plaintiff shall submit a fee application for the contested supplemental attorney fees on or before December 6, 2010. 2. Defendants shall respond thereto by December 20, 2010. 3. Plaintiff shall file a satisfaction of judgment (Filing No. 204 ) on or before November 17, 2010. Ordered by Chief Judge Joseph F. Bataillon. (JAB) (Entered: 11/04/2010)
267 SATISFACTION OF JUDGMENT (Partial) regarding Judgment, 204 by Mohamed A. El−Tabech by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 11/17/2010)
268 Joint MOTION to Extend Date for Filing Motion for Costs and Attorney's Fees Order, Set/Reset All Deadlines,, 266 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 12/02/2010)
269 TEXT ORDER granting 268 Motion to Extend. The Order 266 is hereby amended to allow the plaintiff until January 7, 2011, to file a fee application for the contested supplemental attorney fees. The defendants shall respond thereto by January 21, 2011. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 12/02/2010)
270 MOTION for Attorney Fees on Remand by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 01/07/2011)
271 INDEX in support of MOTION for Attorney Fees on Remand 270 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 01/07/2011)
272 BRIEF in support of MOTION for Attorney Fees on Remand 270 by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 01/07/2011)
273 MOTION to Extend Date for Filing Response to Plaintiff's MOTION for Attorney Fees on Remand 270 by Attorney Ryan C. Gilbride on behalf of Defendants Francis Britten, Mary Carmichael, Harold Clarke, Randy Cole, Robert Houston, Mike Kenney, Douglas Sell.(Gilbride, Ryan) (Entered: 01/20/2011)

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274 TEXT ORDER granting 273 Motion to Extend. The defendants shall have until February 11, 2011, to file a response to the plaintiff's MOTION for Attorney Fees on Remand 270 . Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 01/20/2011)
275 BRIEF in opposition to MOTION for Attorney Fees on Remand 270 by Attorney Ryan C. Gilbride on behalf of Defendants Francis Britten, Mary Carmichael, Harold Clarke, Randy Cole, Robert Houston, Mike Kenney, Douglas Sell.(Gilbride, Ryan) (Entered: 02/11/2011)
276 REPLY BRIEF in support of Motion for Attorney Fees and Costs on Remand by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 02/18/2011)
277 INDEX in support of Motion for Attorney Fees and Costs on Remand by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 02/18/2011)
278 Amended MOTION for Attorney Fees by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 05/18/2011)
279 MEMORANDUM AND ORDER − Plaintiff's motion for attorneys' fees and costs (Filing No. 270 ) is denied as moot. Plaintiff's amended motion for attorneys' fees and costs (Filing No. 278 ) is granted. Attorneys' fees in the amount of $73,209.67, plus interest at the legal rate under 28 U.S.C. § 1961 from and after this date, are assessed in favor of plaintiff and against defendants, payable to plaintiff's counsel. Costs in the amount of $935.40, plus interest at the legal rate under 28 U.S.C. § 1961 from and after this date, are taxed in favor of a plaintiff and against defendants, payable to plaintiff's counsel. A judgment in conformity with this memorandum and order will be entered this date. Ordered by Chief Judge Joseph F. Bataillon. (JAB) (Entered: 05/20/2011)
280 JUDGMENT regarding Memorandum and Order 279 . Judgment is entered in favor of the plaintiff and against the defendants in the amount of $73,209.67, payable to plaintiff's counsel, for attorneys' fees. Costs in the amount of $935.40 are taxed in favor of the plaintiff and against defendants, payable to plaintiff's counsel. Ordered by Chief Judge Joseph F. Bataillon. (JAB) (Entered: 05/20/2011)
281 SATISFACTION OF JUDGMENT regarding Judgment, 280 by Mohamed A. El−Tabech by Attorney V. Gene Summerlin, Jr on behalf of Plaintiff Mohamed A. El−Tabech.(Summerlin, V.) (Entered: 06/20/2011)
282 ORDER to Withdraw Exhibits or to Show Cause Why Exhibits Should Not be Destroyed. Ordered by Judge Joseph F. Bataillon. (MLF, ) (Entered: 11/07/2012)
TEXT ENTRY THAT EXHIBITS destroyed on 12/20/12 by Clerk of Court. (MLF, ) (Entered: 12/18/2012)