1/18/2021

District of Nebraska

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Alerts not yet Supported for this Docket CLOSED,NEBRASKA-DEFENDANT,NEBRASKADOCKET,PROTECTIVEORDER,TRIAL-LINCOLN

U.S. District Court District of Nebraska (4 Lincoln) CIVIL DOCKET FOR CASE #: 4:17-cv-03107-BCB-MDN

Sabata et al v. Nebraska Department of Correctional Services et al Assigned to: Judge Brian C. Buescher Referred to: Magistrate Judge Michael D. Nelson Cause: 42:1983 Prisoner Civil Rights

Date Filed: 08/15/2017 Date Terminated: 12/01/2020 Jury Demand: None Nature of Suit: 555 Prisoner: Prison Conditions Jurisdiction: Federal Question

Plaintiff
Hannah Sabata on behalf of themselves and all others similarly situated

represented by Aaron T. Goodman BAKER, MCKENZIE LAW FIRM - LOS ANGELES 10250 Constellation Boulevard Suite 1850 Los Angeles, CA 90067 310-201-4728 Fax: 310-201-4721 Email: aaron.goodman@bakermckenzie.com TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Adam J. Sipple ACLU OF NEBRASKA 134 South 13th Street Suite 1010 Lincoln, NE 68508 402-476-8091 Email: ajsipple@aclunebraska.org ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Amy Fettig AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6608 Fax: (202) 393-4931 Email: afettig@aclu.org TERMINATED: 06/12/2020 PRO HAC VICE
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Amy A. Miller 623 South 32nd St. Lincoln, NE 68510 402-210-9098 Email: amiller@aclunebraska.org TERMINATED: 11/13/2019
Andrew D. Day DLA PIPER US LAW FIRM SACRAMENTO 400 Captiol Mall Suite 2400 Sacramento, CA 95814-4428 (916) 930-3200 Fax: (916) 930-3201 Email: andrew.day@dlapiper.com TERMINATED: 06/08/2020 PRO HAC VICE
Anna P. Bitencourt Emilio NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER 8630 Fenton Street Suite 820 Silver Springs, MD 20910 (240) 650-2832 Email: anna.bitencourt@nad.org PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Bien-Kahn ROSEN, BIEN LAW FIRM 101 Mission Street 6th Floor San Francisco, CA 94105 (415) 433-6830 Fax: (415) 433-7104 Email: BBien-Kahn@rbgg.com PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany Shrader NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER 8630 Fenton Street Suite 820 Silver Springs, MD 20910 (301) 639-1970 Email: brittany.shrader@nad.org PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Young
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District of Nebraska
DLA PIPER LAW FIRM - SAN DIEGO 401 B Street Suite 1700 San Diego, CA 92101 (619) 699-2700 Fax: (619) 764-2701 Email: christopher.young@dlapiper.com PRO HAC VICE ATTORNEY TO BE NOTICED
Colleen Gulliver DLA PIPER US LAW FIRM - NEW YORK 1251 Avenue of the Americas New York, NY 10020 212-335-4737 Fax: 212-335-4501 Email: colleen.gulliver@dlapiper.com PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle M. Conrad ACLU OF NEBRASKA 134 South 13th Street Suite 1010 Lincoln, NE 68508 402-476-8091 Email: dconrad@aclunebraska.org ATTORNEY TO BE NOTICED
David C. Fathi AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6603 Fax: (202) 393-4931 Email: dfathi@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn M. Jenkins DLA PIPER LAW FIRM - HOUSTON 1000 Louisiana Street Suite 2800 Houston, TX 77002-5005 (713) 425-8454 Fax: (713) 300-6054 Email: dawn.jenkins@dlapiper.com PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Patkin
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District of Nebraska
NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER 8630 Fenton Street Suite 820 Silver Springs, MD 20910 (301) 830-6125 Fax: (301) 587-1791 Email: debra.patkin@nad.org TERMINATED: 11/05/2018 PRO HAC VICE
Diane Amdor NEBRASKA APPLESEED CENTER 941 O Street Suite 920 Lincoln, NE 68508 402-438-8853 Fax: 402-438-0263 Email: damdor@neappleseed.org ATTORNEY TO BE NOTICED
Ernest Galvan ROSEN, BIEN LAW FIRM 101 Mission Street 6th Floor San Francisco, CA 94105 (415) 433-7104 Fax: (415) 433-7104 Email: egalvan@rbgg.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Eldridge DLA PIPER LAW FIRM - CHICAGO 444 West Lake Street Suite 900 Chicago, IL 60606 (312) 368-3914 Fax: (312) 251-5815 Email: jennifer.eldridge@dlapiper.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Wedekind AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISONER PROJECT 915 15th Street, N.W. 7th Floor Washington, DC 20005 (202) 548-6610 Email: jwedekind@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
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District of Nebraska
Kara J. Janssen ROSEN, BIEN LAW FIRM 101 Mission Street 6th Floor San Francisco, CA 94105 (415) 433-6830 Fax: (415) 433-7104 Email: kjanssen@rbgg.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth M. Smith NEBRASKA APPLESEED CENTER 941 O Street Suite 920 Lincoln, NE 68508 (402) 438-8053 Fax: (402) 438-0263 Email: ksmith@neappleseed.org ATTORNEY TO BE NOTICED
Lauren Kuhlik AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISONER PROJECT 915 15th Street, N.W. 7th Floor Washington, DC 20005 (202) 548-6618 Email: lkuhlik@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michael W. Bien ROSEN, BIEN LAW FIRM 101 Mission Street 6th Floor San Francisco, CA 94105 (415) 433-6830 Fax: (415) 433-7104 Email: mbien@rbgg.com PRO HAC VICE ATTORNEY TO BE NOTICED
Rekha Arulanantham AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISONER PROJECT 915 15th Street, N.W. 7th Floor Washington, DC 20005 (202) 548-6607 Fax: (202) 393-4931 Email: rarulanantham@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff
Dylan Cardeilhac on behalf of themselves and all others similarly situated

Robert E. McEwen NEBRASKA APPLESEED CENTER 941 O Street Suite 920 Lincoln, NE 68508 (402) 438-8853 Fax: (402) 438-0263 Email: rmcewen@neappleseed.org ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE

Amy A. Miller (See above for address) TERMINATED: 11/13/2019

Andrew D. Day (See above for address) TERMINATED: 06/08/2020 PRO HAC VICE

Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Christopher M. Young (See above for address) PRO HAC VICE
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ATTORNEY TO BE NOTICED

Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED

David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE

Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
James Curtright on behalf of themselves and all others similarly situated

Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE

Amy A. Miller (See above for address) TERMINATED: 11/13/2019

Andrew D. Day (See above for address) TERMINATED: 06/08/2020 PRO HAC VICE

Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE
Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

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Plaintiff Jason Galle on behalf of themselves and all others similarly situated

District of Nebraska
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED
Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE
Amy A. Miller (See above for address) TERMINATED: 11/13/2019
Andrew D. Day (See above for address) TERMINATED: 06/08/2020 PRO HAC VICE
Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

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Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE
Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

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Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Richard Griswold on behalf of themselves and all others similarly situated

Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE

Amy A. Miller (See above for address) TERMINATED: 11/13/2019

Andrew D. Day (See above for address) TERMINATED: 06/08/2020 PRO HAC VICE

Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Benjamin Bien-Kahn
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(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED

David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE

Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Kara J. Janssen

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(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Michael Gunther on behalf of themselves and all others similarly situated

Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE

Amy A. Miller (See above for address) TERMINATED: 11/13/2019

Andrew D. Day (See above for address) TERMINATED: 06/08/2020 PRO HAC VICE

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Anna P. Bitencourt Emilio (See above for address)
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PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED

David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE

Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Jennifer Wedekind (See above for address)
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PRO HAC VICE ATTORNEY TO BE NOTICED

Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Angelic Norris on behalf of themselves and all others similarly situated TERMINATED: 06/08/2020

Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE

Amy A. Miller (See above for address) TERMINATED: 11/13/2019

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Andrew D. Day (See above for address) TERMINATED: 06/08/2020
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PRO HAC VICE

Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED

David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE

Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Jennifer Eldridge (See above for address) PRO HAC VICE
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ATTORNEY TO BE NOTICED

Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
R. P. a minor, on behalf of themselves and all others similarly situated TERMINATED: 02/27/2019

Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE

Amy A. Miller (See above for address) TERMINATED: 11/13/2019

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Andrew D. Day (See above for address) TERMINATED: 06/08/2020
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PRO HAC VICE

Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED

David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David J. Tarrell BERRY LAW FIRM - LINCOLN 6940 O Street Suite 400 Lincoln, NE 68510 (402) 466-8444 Fax: (402) 466-1793 Email: dtarrell@jsberrylaw.com TERMINATED: 04/09/2019

Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Ernest Galvan (See above for address) PRO HAC VICE
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ATTORNEY TO BE NOTICED

Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Isaac Reeves on behalf of themselves and all others similarly situated

Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Amy Fettig (See above for address) TERMINATED: 06/12/2020
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PRO HAC VICE

Amy A. Miller (See above for address) TERMINATED: 11/13/2019

Andrew D. Day (See above for address) TERMINATED: 06/08/2020 PRO HAC VICE

Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED

David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE
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Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Zoe Rena on behalf of themselves and all others similarly situated TERMINATED: 12/01/2020

Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED
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District of Nebraska
Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE
Amy A. Miller (See above for address) TERMINATED: 11/13/2019
Andrew D. Day (See above for address) TERMINATED: 06/08/2020 PRO HAC VICE
Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn M. Jenkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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District of Nebraska
Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE

Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED

Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Brandon Sweetser on behalf of themselves and all others similarly situated TERMINATED: 06/08/2020

represented by Aaron T. Goodman (See above for address) TERMINATED: 04/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

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District of Nebraska

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Adam J. Sipple (See above for address) ATTORNEY TO BE NOTICED
Amy Fettig (See above for address) TERMINATED: 06/12/2020 PRO HAC VICE
Amy A. Miller (See above for address) TERMINATED: 11/13/2019
Andrew D. Day (See above for address) TERMINATED: 06/08/2020 PRO HAC VICE
Anna P. Bitencourt Emilio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin Bien-Kahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany Shrader (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher M. Young (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Colleen Gulliver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle M. Conrad (See above for address) ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn M. Jenkins
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(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Debra Patkin (See above for address) TERMINATED: 11/05/2018 PRO HAC VICE
Ernest Galvan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Eldridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kara J. Janssen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth M. Smith (See above for address) ATTORNEY TO BE NOTICED
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael W. Bien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rekha Arulanantham (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert E. McEwen (See above for address) ATTORNEY TO BE NOTICED

V.
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Defendant Nebraska Department of Correctional Services
https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

District of Nebraska
represented by Benjamin M. Goins ATTORNEY GENERAL'S OFFICE NEBRASKA 2115 State Capitol Lincoln, NE 68509 (402) 471-2682 Fax: (402) 471-4725 Email: ben.goins@nebraska.gov ATTORNEY TO BE NOTICED
Danielle L. Rowley CITY OF LINCOLN 555 South 10th Street Suite 300 Lincoln, NE 68508 402-441-7281 Fax: 402-441-8812 Email: drowley@lincoln.ne.gov TERMINATED: 11/23/2020
David A. Lopez HUSCH, BLACKWELL LAW FIRM OMAHA 13330 California Street Suite 200 Omaha, NE 68154 402-964-5097 Email: dave.lopez@huschblackwell.com TERMINATED: 07/31/2019
Jessica M. Forch ATTORNEY GENERAL'S OFFICE NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509-8920 (402) 471-1845 Fax: (402) 471-3835 Email: jessica.forch@nebraska.gov TERMINATED: 03/08/2019
Katherine O'Brien ATTORNEY GENERAL'S OFFICE NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509-8920 (402) 471-4725 Fax: (402) 471-4725 Email: katherine.obrien@nebraska.gov ATTORNEY TO BE NOTICED
Phoebe L. Gydesen
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Defendant Scott Frakes In his ofﬁcial capacity as Director of the Nebraska Department of Correctional Services
https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

District of Nebraska
ATTORNEY GENERAL'S OFFICE NEBRASKA 2115 State Capitol Lincoln, NE 68509 402-471-2757 Email: phoebe.gydesen@nebraska.gov ATTORNEY TO BE NOTICED
Ryan S. Post ATTORNEY GENERAL'S OFFICE NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509-8920 (402) 471-1814 Fax: (402) 471-3297 Email: ryan.post@nebraska.gov ATTORNEY TO BE NOTICED
Scott R. Straus ATTORNEY GENERAL'S OFFICE NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509-8920 (402) 471-6289 Fax: (402) 471-4725 Email: scott.straus@nebraska.gov ATTORNEY TO BE NOTICED
Timothy R. Ertz CITY ATTORNEY'S OFFICE - KANSAS CITY 414 East 12th Street 2300 City Hall Kansas City, MO 64106 (816) 513-3142 Email: timothy.ertz@kcmo.org TERMINATED: 07/10/2018
represented by Benjamin M. Goins (See above for address) ATTORNEY TO BE NOTICED
Danielle L. Rowley (See above for address) TERMINATED: 11/23/2020
David A. Lopez (See above for address) TERMINATED: 07/31/2019
Jessica M. Forch
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District of Nebraska
(See above for address) TERMINATED: 03/08/2019

Katherine O'Brien (See above for address) ATTORNEY TO BE NOTICED

Phoebe L. Gydesen (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

Scott R. Straus (See above for address) ATTORNEY TO BE NOTICED

Defendant
Harbans Deol In his ofﬁcial capacity as Director of Health Services of the Nebraska Department of Correctional Services

Timothy R. Ertz (See above for address) TERMINATED: 07/10/2018
represented by Benjamin M. Goins (See above for address) ATTORNEY TO BE NOTICED
Danielle L. Rowley (See above for address) TERMINATED: 11/23/2020

David A. Lopez (See above for address) TERMINATED: 07/31/2019

Jessica M. Forch (See above for address) TERMINATED: 03/08/2019

Katherine O'Brien (See above for address) ATTORNEY TO BE NOTICED

Phoebe L. Gydesen (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ned.uscourts.gov/cgi-bin/DktRpt.pl?769018479760856-L_1_0-1

Scott R. Straus (See above for address)
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ATTORNEY TO BE NOTICED

Defendant Nebraska Board of Parole

Timothy R. Ertz (See above for address) TERMINATED: 07/10/2018
represented by Benjamin M. Goins (See above for address) ATTORNEY TO BE NOTICED

Danielle L. Rowley (See above for address) TERMINATED: 11/23/2020

David A. Lopez (See above for address) TERMINATED: 07/31/2019

Jessica M. Forch (See above for address) TERMINATED: 03/08/2019

Katherine O'Brien (See above for address) ATTORNEY TO BE NOTICED

Phoebe L. Gydesen (See above for address) ATTORNEY TO BE NOTICED

Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED

Scott R. Straus (See above for address) ATTORNEY TO BE NOTICED

Defendant
Julie Micek In her ofﬁcial capacity as the Board of Parole Acting Parole Administrator TERMINATED: 06/08/2020

Timothy R. Ertz (See above for address) TERMINATED: 07/10/2018
represented by Benjamin M. Goins (See above for address) ATTORNEY TO BE NOTICED
Danielle L. Rowley (See above for address) TERMINATED: 11/23/2020

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David A. Lopez (See above for address)
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Defendant Does 1 to 20 inclusive TERMINATED: 10/06/2020 Movant Marshall Lux
V. Interested Party Jesse Blackstock

District of Nebraska
TERMINATED: 07/31/2019
Jessica M. Forch (See above for address) TERMINATED: 03/08/2019
Katherine O'Brien (See above for address) ATTORNEY TO BE NOTICED
Phoebe L. Gydesen (See above for address) ATTORNEY TO BE NOTICED
Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED
Scott R. Straus (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Ertz (See above for address) TERMINATED: 07/10/2018
represented by Shawn D. Renner CLINE, WILLIAMS LAW FIRM LINCOLN 233 South 13th Street 1900 US Bank Building Lincoln, NE 68508-2095 (402) 474-6900 Fax: (402) 474-5393 Email: srenner@clinewilliams.com ATTORNEY TO BE NOTICED

Date Filed 08/15/2017

# Docket Text
1 COMPLAINT against Harbans Deol, Does, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services ( Filing fee $ 400, receipt number

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0867-3504366), by Attorney Amy A. Miller on behalf of Brandon Sweetser, Angelic Norris, Dylan Cardeilhac, Hannah Sabata, Michael Gunther, James Curtright, Isaac Reeves, R. P., Jason Galle, Zoe Rena, Richard Griswold(Miller, Amy) (Entered: 08/16/2017)

08/15/2017

4 TEXT NOTICE OF JUDGES ASSIGNED: Judge Robert F. Rossiter, Jr. and Magistrate Judge Michael D. Nelson assigned. (LAC) (Entered: 08/16/2017)

08/16/2017

2 MOTION to Appoint Guardian ad Litem by Attorney Amy A. Miller on behalf of Plaintiff R. P..(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

3 MOTION to ﬁle under Seal True Identity of R.P. by Attorney Amy A. Miller on behalf of Plaintiff R. P..(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

5 MOTION Application for Admission Pro Hac Vice For Michael W. Bien by Attorney Amy A. Miller on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

6 MOTION Application for Admission Pro Hac Vice for Kara J. Janssen by Attorney Amy A. Miller on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

7 MOTION Application for Admission Pro Hac Vice for David Cyrus Fathi by Attorney Amy A. Miller on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

8 MOTION Application for Admission Pro Hac Vice for Christopher M. Young by Attorney Amy A. Miller on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

9 MOTION Application for Admission Pro Hac Vice for Jennifer Eldridge by Attorney Amy A. Miller on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

10 MOTION Application for Admission Pro Hac Vice for Dawn M. Jenkins by Attorney Amy A. Miller on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

11 MOTION Application for Admission Pro Hac Vice for Debra Patkin by Attorney Amy A. Miller on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Miller, Amy) (Entered: 08/16/2017)

08/16/2017

12 NOTICE of Place of Trial by Attorney Amy A. Miller on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser (Miller, Amy) (Entered: 08/16/2017)

08/16/2017

13 RESTRICTED DOCUMENT regarding MOTION to ﬁle under Seal True Identity of R.P. 3 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Amy A. Miller on behalf of Plaintiff R. P..(Miller, Amy) (Entered: 08/16/2017)

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08/16/2017 08/17/2017 08/17/2017 08/17/2017 08/17/2017 08/17/2017 08/17/2017 08/17/2017 08/24/2017
08/29/2017 09/01/2017

District of Nebraska
14 TEXT ORDER granting in part 3 Motion to Seal. The plaintiffs' Declaration Disclosing the True Name of Plaintiff R.P. 13 shall remain a restricted document pursuant to NEGenR 1.3(a)(1)(B)(ii) and NECivR 5.3(c). Access to the Declaration shall remain restricted to court users and case participants. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 08/16/2017)
15 APPLICATION/ORDER admitting pro hac vice Attorney David Fathi for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Ordered by Deputy Clerk. (ADB) (Entered: 08/17/2017)
16 APPLICATION/ORDER admitting pro hac vice Attorney Christopher M. Young for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Ordered by Deputy Clerk. (ADB) (Entered: 08/17/2017)
17 APPLICATION/ORDER admitting pro hac vice Attorney Dawn M. Jenkins for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Ordered by Deputy Clerk. (ADB) (Entered: 08/17/2017)
18 APPLICATION/ORDER admitting pro hac vice Attorney Debra Patkin for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Ordered by Deputy Clerk. (ADB) (Entered: 08/17/2017)
19 APPLICATION/ORDER admitting pro hac vice Attorney Jennifer Eldridge for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Ordered by Deputy Clerk. (ADB) (Entered: 08/17/2017)
20 APPLICATION/ORDER admitting pro hac vice Attorney Michael W. Bien for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Ordered by Deputy Clerk. (ADB) (Entered: 08/17/2017)
21 APPLICATION/ORDER admitting pro hac vice Attorney Kara Janssen for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Ordered by Deputy Clerk. (ADB) (Entered: 08/17/2017)
22 ORDER that Plaintiffs' Motion for Appointment of Next Friend Per Fed. R. Civ. P. 17(c) (Filing No. 2 ) is granted. David J. Tarrell, Attorney at Law, 1823 Harney Street, Suite 100, Omaha, Nebraska 68102, (402) 884-7770, is appointed as Guardian ad Litem to represent the interests of Plaintiff R. P., a minor, during the pendency of this action or until further order of the Court. The Clerk of Court is directed to mail copies of this Order to Mr. Tarrell at the address listed above. Upon receipt of this Order, Mr. Tarrell shall enter his appearance on behalf of Plaintiff R.P. Ordered by Magistrate Judge Michael D. Nelson. (Copies mailed as directed to Attorney David J. Tarrell)(LAC) (Entered: 08/24/2017)
23 NOTICE of Appearance as Guardian Ad Litem by Attorney David J. Tarrell on behalf of Plaintiff R. P. (Tarrell, David) (Entered: 08/29/2017)
24 APPLICATION/ORDER admitting pro hac vice Attorney Amy Fettig for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic

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Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, and Brandon Sweetser. Ordered by Deputy Clerk. (LAC) (Entered: 09/01/2017)

09/01/2017

25 APPLICATION/ORDER admitting pro hac vice Attorney Ernest Galvan for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, and Brandon Sweetser. Ordered by Deputy Clerk. (LAC) (Entered: 09/01/2017)

09/05/2017

26 WAIVER OF SERVICE Returned Executed upon 8/29.2017 defendant Nebraska Department of Correctional Services. Waiver sent on 8/23/2017. (McEwen, Robert) (Entered: 09/05/2017)

09/05/2017

27 WAIVER OF SERVICE Returned Executed upon 08/29/2017 defendant Scott Frakes. Waiver sent on 8/23/2017. (McEwen, Robert) (Entered: 09/05/2017)

09/05/2017 09/05/2017 09/05/2017

28 WAIVER OF SERVICE Returned Executed upon 08/29/2017 defendant Nebraska Board of Parole. Waiver sent on 8/23/2017. (McEwen, Robert) (Entered: 09/05/2017)
29 WAIVER OF SERVICE Returned Executed upon 08/29/2017 defendant Julie Micek. Waiver sent on 8/23/2017. (McEwen, Robert) (Entered: 09/05/2017)
30 WAIVER OF SERVICE Returned Executed upon 08/29/2017 defendant Harbans Deol. Waiver sent on 8/23/2017. (McEwen, Robert) (Entered: 09/05/2017)

10/19/2017 10/19/2017

31 MOTION for Extension of Time to File a Responsive Pleading and for Extended Opposition Brieﬁng by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 10/19/2017)
32 TEXT ORDER granting 31 Unopposed Motion for Extension of Time to File a Responsive Pleading and to Extend Opposition Brieﬁng. Defendants shall have an extension of time to November 6, 2017, to ﬁle a responsive pleading. Per the agreement of the parties, Plaintiffs shall have until December 11, 2017, to ﬁle a brief in response to Defendants' responsive pleading. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 10/19/2017)

10/23/2017 11/06/2017

33 APPLICATION/ORDER admitting pro hac vice Attorney Andrew D. Day for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Fee in the amount of $100.00 paid, receipt number 8044681. Ordered by Deputy Clerk. (ADB) (Entered: 10/23/2017)
34 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF SUBJECT-MATTER JURISDICTION by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 11/06/2017)

11/06/2017

35 BRIEF in support of MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF SUBJECT-MATTER JURISDICTION 34 by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 11/06/2017)

11/06/2017 11/07/2017

36 MOTION for Extension of Time to File a Responsive Pleading Pending Disposition of Motion to Dismiss 34 by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 11/06/2017)
37 TEXT ORDER granting 36 Motion for Extension of Time to File a Responsive Pleading.

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12/15/2017 12/15/2017

District of Nebraska
The time for Defendants to ﬁle an answer to the Complaint 1 is suspended until 14-days after the Court issues a ruling on their pending Motion to Dismiss for Failure to State a Claim 34 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 11/07/2017)
38 NOTICE of Appearance by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services (Ertz, Timothy) (Entered: 11/07/2017)
39 NOTICE of Appearance by Attorney Jessica M. Forch on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services (Forch, Jessica) (Entered: 11/07/2017)
40 Certiﬁcate of Service for Plaintiffs' First Set of Requests For Production of Documents by Attorney Robert E. McEwen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(McEwen, Robert) (Entered: 11/22/2017)
Remark - Public: Copy of Motion miscellaneous relief 12 in 4:17cv3134 Griswold v. Hanson sent to counsel of record at the direction of Senior Judge Richard G. Kopf. (CCB) (Entered: 12/04/2017)
41 RESPONSE regarding MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF SUBJECT-MATTER JURISDICTION 34 , Plaintiffs' Opposition by Attorney Ernest Galvan on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Galvan, Ernest) (Entered: 12/11/2017)
42 INDEX in opposition to MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF SUBJECT-MATTER JURISDICTION 34 , Request for Judicial Notice by Attorney Ernest Galvan on behalf of Plaintiffs Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Request for Judicial Notice, # 2 Declaration of Ernest Galvan, # 3 Norris Proﬁle, # 4 RP Proﬁle Redacted, # 5 Sabata Proﬁle, # 6 Reeves Proﬁle, # 7 Sweetser Proﬁle, # 8 Galle Proﬁle, # 9 Cardeilhac Proﬁle, # 10 Griswold Proﬁle, # 11 Gunther Proﬁle, # 12 Curtright Proﬁle, # 13 Hearing Schedule Redacted)(Galvan, Ernest) (Entered: 12/11/2017)
43 APPLICATION/ORDER admitting pro hac vice Attorney Benjamin Bien-Kahn for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. Fee in the amount of $100.00 paid, receipt number 8045358. Ordered by Deputy Clerk. (LAC) (Entered: 12/15/2017)
44 ATTORNEY LETTER by Clerk that Attorney Benjamin Bien-Kahn has not registered for the system. If the requested action is not taken within ﬁfteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (LAC) (Entered: 12/15/2017)

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01/16/2018 01/16/2018

District of Nebraska
45 MOTION to Extend Deadline to File Reply Brief in Support of Motion to Dismiss by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Ertz, Timothy) (Entered: 12/18/2017)
46 TEXT ORDER granting 45 Motion to Extend. Defendants shall have an extension of time to December 28, 2017, to ﬁle a brief in reply to the Motion to Dismiss 34 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 12/18/2017)
47 APPLICATION/ORDER admitting pro hac vice Attorney Rekha Arulanantham for Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, and Brandon Sweetser. Fee in the amount of $100.00 paid, receipt number 8045484. Ordered by Deputy Clerk. (LAC) (Entered: 12/21/2017)
48 REPLY BRIEF in support of MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF SUBJECT-MATTER JURISDICTION 34 by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 12/28/2017)
49 WITHDRAWN - MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Hannah Sabata by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Ertz, Timothy) Modiﬁed on 1/17/2018 to withdraw per #55 Text Order (LAC). (Entered: 01/05/2018)
50 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Hannah Sabata 49 by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Ertz, Timothy) (Entered: 01/05/2018)
51 RESPONSE regarding MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Hannah Sabata 49 Plaintiffs' Opposition by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 01/12/2018)
52 INDEX in opposition to MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Hannah Sabata 49 by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Exhibit Request for Judicial Notice, # 2 Exhibit Declaration of Amy A. Miller, # 3 Exhibit Sabata Search Listing, # 4 Exhibit Sabata Proﬁle 1/5/18, # 5 Exhibit Sabata Proﬁle 1/12/18)(Janssen, Kara) (Entered: 01/12/2018)
53 MEMORANDUM AND ORDER that defendants' Motion to Dismiss (Filing No. 34) for failure to state a claim and lack of subject-matter jurisdiction is denied in part and granted in part. The BOP Defendants are not dismissed as parties. All § 1983 claims against the BOP and NDCS are dismissed with prejudice. Ordered by Judge Robert F. Rossiter, Jr. (JSF) (Entered: 01/16/2018)
54 MOTION to Withdraw Document regarding MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Hannah Sabata 49 by Attorney Timothy R. Ertz

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on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Ertz, Timothy) (Entered: 01/16/2018)
55 TEXT ORDER granting 54 Defendants' Motion to Withdraw. Defendants' Suggestion of Mootness and Motion to Dismiss Claims of Named Plaintiff Hannah Sabata 49 is hereby deemed withdrawn. Per the Court's Text Order 37 dated November 7, 2017, Defendants' answer to Plaintiffs' remaining claims is due January 30, 2018. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 01/17/2018)
56 MOTION for Extension of Time to File a Responsive Pleading to March 1, 2018, by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 01/26/2018)
57 TEXT ORDER granting 56 Motion for Extension of Time to File a Responsive Pleading (Opposed). In consideration of the length and complexity of the Complaint, good cause exists to grant the defendants a 30-day extension of time to ﬁle an answer. Accordingly, Defendants, Harbans Deol, Scott Frakes, Julie Micek, the Nebraska Board of Parole, and the Nebraska Department of Correctional Services shall have an extension of time to March 1, 2018, to ﬁle a responsive pleading to the Complaint. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 01/26/2018)
58 *WITHDRAWN* MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Ertz, Timothy) Modiﬁed on 3/9/2018 per text order 70 . (LKO) (Entered: 02/08/2018)
59 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. 58 by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Ertz, Timothy) (Entered: 02/08/2018)
60 MOTION to Restrict pursuant to the E-Government Act Defendants' Index of Evidence in Support of Motion to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Ertz, Timothy) (Entered: 02/08/2018)
61 RESTRICTED DOCUMENT regarding MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. 58 , MOTION to Restrict pursuant to the EGovernment Act Defendants' Index of Evidence in Support of Motion to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. 60 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Declaration of Deanna Schmidt)(Ertz, Timothy) (Entered: 02/08/2018)
62 TEXT ORDER granting 60 Motion to Restrict pursuant to the E-Government Act. Access to Defendants' Index of Evidence 61 in support of the Motion to Dismiss and Suggestion of Mootness 58 shall remain restricted to parties of record and court users. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 02/09/2018)
63 ANSWER to Complaint by Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of

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Parole, Nebraska Department of Correctional Services (Lopez, David) (Entered: 03/01/2018)

03/01/2018

64 RESPONSE regarding MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. 58 Plaintiffs' Opposition to Defendants' Suggestion of Mootness and Motion to Dismiss Claims of Named Plaintiff R.P. by Attorney Ernest Galvan on behalf of Plaintiff R. P..(Galvan, Ernest) (Entered: 03/01/2018)

03/01/2018

65 MOTION to Restrict pursuant to the E-Government Act Motion for Leave to File Plaintiffs' Index of Evidence Under Restricted Access by Attorney Ernest Galvan on behalf of Plaintiff R. P..(Galvan, Ernest) (Entered: 03/01/2018)

03/01/2018

66 RESTRICTED DOCUMENT Plaintiffs' Index of Evidence in Opposition to Defendants' Suggestion of Mootness and Motion to Dismiss Claims of Named Plaintiff R.P. regarding MOTION to Restrict pursuant to the E-Government Act Motion for Leave to File Plaintiffs' Index of Evidence Under Restricted Access 65 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Ernest Galvan on behalf of Plaintiff R. P.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5)(Galvan, Ernest) (Entered: 03/01/2018)

03/02/2018

67 TEXT ORDER granting 65 Motion to Restrict pursuant to the E-Government Act. Access to Plaintiffs' Index of Evidence 66 in Opposition to Defendants' Suggestion of Mootness and Motion to Dismiss Claims of Named Plaintiff 58 shall remain restricted to court users and case participants. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 03/02/2018)

03/05/2018

68 SCHEDULING LETTER - Rule 26 Meeting Report Deadline set for 4/6/2018.Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 03/05/2018)

03/08/2018

69 MOTION to Withdraw Document regarding MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. 58 by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Ertz, Timothy) (Entered: 03/08/2018)

03/09/2018

70 TEXT ORDER granting 69 Defendants' Motion to Withdraw. Defendants' Motion to Dismiss and Suggestion of Mootness as to Claims of Named Plaintiff R.P. 58 is hereby deemed withdrawn. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 03/09/2018)

04/06/2018

71 REPORT of Rule 26(f) Planning Meeting by Attorney Robert E. McEwen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(McEwen, Robert) (Entered: 04/06/2018)

04/09/2018

72 NOTICE of Appearance by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services (Jones, Danielle) (Entered: 04/09/2018)

04/09/2018

73 TEXT ORDER - After consultation with counsel for the parties, a Telephone Conference is scheduled for Monday, April 16, 2018, at 2:00 PM CDT before Magistrate Judge Michael D. Nelson. A separate order will be entered with case conference instructions. Ordered by Magistrate Judge Michael D. Nelson.(JLM) (Entered: 04/09/2018)

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74 CASE CONFERENCE INSTRUCTIONS. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 04/09/2018)
75 NOTICE of Appearance by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services (O'Brien, Katherine) (Entered: 04/12/2018)
76 TEXT MINUTE ENTRY for proceedings held on April 16, 2018, by telephone before Magistrate Judge Michael D. Nelson. Robert E. McEwen, Kenneth M. Smith, Dawn M. Jenkins, Christopher M. Young, David C. Fathi, Rekha Arulanantham, Amy Fettig, and Benjamin Bien-Kahn apeared on behalf of the plaintiffs. David A. Lopez, Timothy R. Ertz, Jessica M. Forch, Katherine O'Brien, and Danielle L. Jones appeared for the defendants. Discussion was held regarding preliminary progression issues raised in the parties' Rule 26(f) Report. Order to be issued in accordance with the discussion held during the conference. (SMN) (Entered: 04/16/2018)
77 ORDER SETTING SCHEDULE FOR INITIAL PROGRESSION OF A CIVIL CASE Status Conference set for 7/20/2018 at 10:00 AM by Telephone before Magistrate Judge Michael D. Nelson. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 04/17/2018)
78 Certiﬁcate of Service of Defendants' First Sets of Written Interrogatories by Attorney Timothy R. Ertz on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Ertz, Timothy) (Entered: 04/18/2018)
79 MOTION Amend or Modify Initial Progression Order 77 by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 04/23/2018)
80 BRIEF in support of MOTION Amend or Modify Initial Progression Order 77 79 by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 04/23/2018)
81 Certiﬁcate of Service for Plaintiffs' Second Set of Requests for Production of Documents by Attorney Amy Fettig on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Fettig, Amy) (Entered: 05/03/2018)
82 Certiﬁcate of Service for Plaintiffs' First Set of Interrogatories by Attorney Amy Fettig on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Fettig, Amy) (Entered: 05/07/2018)
83 BRIEF in opposition to Motion to Amend Initial Progression Order by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Smith, Kenneth) (Entered: 05/07/2018)
84 Certiﬁcate of Service for Plaintiff's Third Set of Requests for Production of Documents by Attorney Amy Fettig. (LKO) (Entered: 05/14/2018)
85 REPLY BRIEF in support of MOTION Amend or Modify Initial Progression Order 77 79 by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie

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Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 05/14/2018)

05/14/2018

86 INDEX in support of MOTION Amend or Modify Initial Progression Order 77 79 by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Lopez Declaration (with exhibit))(Lopez, David) (Entered: 05/14/2018)

05/15/2018

87 Certiﬁcate of Service for Plaintiffs' Rule 26(a)(1) Initial Disclosures by Attorney Amy Fettig on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Fettig, Amy) (Entered: 05/15/2018)

05/15/2018

88 Certiﬁcate of Service of the Defendants' Rule 26(a)(1) Initial Disclosures by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 05/15/2018)

05/15/2018

89 JOINT MOTION for Protective Order by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 05/15/2018)

05/16/2018

90 STIPULATED PROTECTIVE ORDER - Upon review of the parties' Joint Motion (Filing No. 89 ) and proposed Stipulated Protective Order emailed to the undersigned magistrate judge's chambers, IT IS ORDERED that the Joint Motion for Entry of Stipulated Protective Order (Filing No. 89 ) is granted, and the parties' stipulated protective order is entered. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 05/16/2018)

05/16/2018

91 MOTION for Leave to File a Sur-Reply Brief in Opposition to Defendants Motion to Amend Initial Progression Order by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Smith, Kenneth) (Entered: 05/16/2018)

05/16/2018

92 INDEX in support of MOTION for Leave to File a Sur-Reply Brief in Opposition to Defendants Motion to Amend Initial Progression Order 91 by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Submission From Sender Proposed Sur-Reply Brief, # 2 Submission From Sender A. Scheduling Order in Powers, # 3 Submission From Sender B. 26(f) Report in Powers, # 4 Submission From Sender C. Scheduling Order in Gebhardt, # 5 Submission From Sender D. 26(f) Report in Gebhardt)(Smith, Kenneth) (Entered: 05/16/2018)

05/17/2018

93 TEXT ORDER granting 91 Motion for Leave to File a Sur-Reply Brief. The Court will consider Plaintiffs' sur-reply brief instanter. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 05/17/2018)

05/17/2018

94 Certiﬁcate of Service of the Defendants' Responses to the Plaintiffs First Set of Requests for Production of Documents by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 05/17/2018)

05/21/2018

95 ORDER - that Defendants' Motion to Amend Initial Progression Order (Filing No. 79 ) is granted, in part, and in part denied, as set forth above, and the Initial Progression Order

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(Filing No. 77 ) is amended as follows: Motions for Class Certiﬁcation. a. Any motion to certify this case as a class action shall be ﬁled by December 17, 2018, in the absence of which any claim in the pleadings that this is a class action shall be deemed abandoned, and the case shall proceed, for purposes of Fed. R. Civ. P. 23, as if a motion for class certiﬁcation had been ﬁled and denied by the Court. b. Defendants shall ﬁle their response to Plaintiffs' class certiﬁcation motion by January 28, 2019. c. Plaintiffs may ﬁle a reply by February 25, 2019. The parties shall meet and confer as soon as practicable regarding the scope of ESI discovery, and submit any stipulation to the Court for its approval. In the event the parties cannot reach an agreement, they may contact the undersigned's chambers to request the assistance of the Court to resolve outstanding disputes. Each party is limited to serving one-hundred (100) interrogatories on any other party. The plaintiffs as a group, and the defendants as a group, are each limited to taking thirty (30) depositions. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 05/21/2018)
96 Certiﬁcate of Service for Plaintiffs' Fourth Set of Requests for Production of Documents by Attorney Amy Fettig on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Fettig, Amy) (Entered: 05/22/2018)
97 MOTION for Reconsideration regarding Order on Motion for Miscellaneous Relief,,,,, 95 by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (O'Brien, Katherine) (Entered: 05/22/2018)
98 BRIEF in support of MOTION for Reconsideration regarding Order on Motion for Miscellaneous Relief,,,,, 95 97 by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 05/22/2018)
99 TEXT ORDER granting 97 Motion for Reconsideration. The Court clariﬁes that its May 21, 2018, Order 95 , adopted the parties' agreement in the Rule 26(f) Report that the maximum number of interrogatories, including sub-parts, that may be served by any side is 100. "Side" shall mean the Plaintiffs as a group and the Defendants as a group, respectively. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 05/22/2018)
100 Certiﬁcate of Service for Plaintiffs' Fifth Set of Requests for Production of Documents by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bien-Kahn, Benjamin) (Entered: 06/01/2018)
101 Certiﬁcate of Service of the Defendants' Responses to the Plaintiffs' Second Set of Requests for Production of Documents by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Jones, Danielle) (Entered: 06/04/2018)
102 Certiﬁcate of Service of the Defendants' Responses to the Plaintiffs' Third Set of Requests for Production of Documents by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 06/13/2018)
103 Certiﬁcate of Service of Plaintiffs' Responses to Defendants' First Set of Interrogatories by Attorney Dawn M. Jenkins on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Jenkins, Dawn) (Entered: 06/18/2018)
104 Certiﬁcate of Service of the Defendants' Expert Disclosures by Attorney Katherine

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O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 06/21/2018)

06/21/2018

105 Certiﬁcate of Service of the Defendants' Responses to the Plaintiffs' Fourth Set of Requests for Production of Documents by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 06/21/2018)

06/26/2018

106 JOINT STIPULATION Proposed Order on Electronically Stored Information by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Smith, Kenneth) (Entered: 06/26/2018)

06/27/2018

107 STIPULATED ORDER ON ELECTRONICALLY STORED INFORMATION - that the parties' Stipulated Order on Electronically Stored Information (Filing No. 106 ) is adopted. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 06/27/2018)

06/29/2018

108 MOTION to Quash Subpoena by Attorney Shawn D. Renner on behalf of Movant Marshall Lux. (Attachments: # 1 Exhibit A)(Renner, Shawn) (Entered: 06/29/2018)

06/29/2018 109 BRIEF in support of MOTION to Quash Subpoena 108 by Attorney Shawn D. Renner on behalf of Movant Marshall Lux.(Renner, Shawn) (Entered: 06/29/2018)

06/29/2018

110 INDEX in support of MOTION to Quash Subpoena 108 by Attorney Shawn D. Renner on behalf of Movant Marshall Lux. (Attachments: # 1 Afﬁdavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Renner, Shawn) (Entered: 06/29/2018)

06/29/2018

111 Certiﬁcate Certiﬁcate of Service for Plaintiffs' Expert Disclosures by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 06/29/2018)

07/04/2018

112 Certiﬁcate of Service of the Defendants' Responses to the Plaintiffs' First Set of Interrogatories by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 07/04/2018)

07/09/2018

113 NOTICE of Appearance and Withdrawal of Counsel by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services (Post, Ryan) (Entered: 07/09/2018)

07/10/2018

114 TEXT ORDER granting 113 Defendants' Withdrawal of Counsel. Timothy R. Ertz is terminated as counsel of record for Defendants and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/10/2018)

07/10/2018

115 UNOPPOSED MOTION to Extend Time to Respond to Ombudsman's Motion to Quash 108 by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Lopez, David) (Entered: 07/11/2018)

07/11/2018

116 TEXT ORDER granting 115 Unopposed Motion to Extend. Defendants shall have an extension of time to August 3, 2018, to ﬁle a response to the Motion to Quash Subpoena

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108 ﬁled by the Nebraska Ombudsman. The Ombudsman may ﬁle a reply seven days thereafter. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/11/2018)
117 UNOPPOSED MOTION to Extend Time to File Motion for Summary Judgment by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Jones, Danielle) (Entered: 07/12/2018)
118 TEXT ORDER granting 117 Unopposed Motion to Extend. Defendants shall have an extension of time to July 20, 2018, to ﬁle a motion for summary judgment based on failure to exhaust administrative remedies. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/12/2018)
119 MOTION for Admission Pro Hac Vice Filing fee $ 100, receipt number ANEDC3726757 by Attorney Anna P. Bitencourt Emilio on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bitencourt Emilio, Anna) (Entered: 07/20/2018)
120 TEXT ORDER granting Motion for Admission Pro Hac Vice, 119 for attorney Anna Bitencourt Emilio. Ordered by Deputy Clerk. (DKM) (Entered: 07/20/2018)
121 ORDER - Defendants shall have an extension of time to July 27, 2018, to ﬁle a motion for summary judgment based on failure to exhaust administrative remedies. Parties shall contact Magistrate Judge Nelson within seven days (7) after the Court rules on the Motion for Summary Judgment to schedule a telephone conference. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/20/2018)
122 Certiﬁcate of Service for Plaintiffs' Sixth Set of Requests for Production of Documents by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bien-Kahn, Benjamin) (Entered: 07/20/2018)
123 Certiﬁcate of Service for Plaintiffs' Requests for Entry onto Designated Land or Other Property by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bien-Kahn, Benjamin) (Entered: 07/20/2018)
124 Certiﬁcate of Service by Attorney Jessica M. Forch on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Forch, Jessica) (Entered: 07/24/2018)
125 MOTION for Partial Summary Judgment by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Jones, Danielle) (Entered: 07/27/2018)
126 MOTION to Restrict pursuant to the E-Government Act by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Jones, Danielle) (Entered: 07/27/2018)
127 RESTRICTED DOCUMENT Index in Support regarding MOTION for Partial Summary Judgment 125 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments:

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# 1 Afﬁdavit Sabatka-Rine, # 2 *STRICKEN* Exhibit 1, # 3 Afﬁdavit Braaten, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Afﬁdavit Jones, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Exhibit 31, # 35 Exhibit 32, # 36 Exhibit 33, # 37 Exhibit 34, # 38 Exhibit 35, # 39 Exhibit 36, # 40 Exhibit 37, # 41 Exhibit 38, # 42 Exhibit 39, # 43 Exhibit 40, # 44 Exhibit 41, # 45 Exhibit 42, # 46 Afﬁdavit Mathews, # 47 *STRICKEN* Exhibit 43, # 48 Exhibit 44, # 49 Exhibit 45, # 50 Exhibit 46, # 51 Exhibit 47, # 52 Exhibit 48, # 53 Exhibit 49, # 54 Exhibit 50,

District of Nebraska

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# 55 Exhibit 51, # 56 Exhibit 52, # 57 Exhibit 53, # 58 Exhibit 54, # 59 Exhibit 55, # 60 Exhibit 56, # 61 Exhibit 57, # 62 Exhibit 58, # 63 Exhibit 59, # 64 Exhibit 60, # 65 Exhibit 61, # 66 Exhibit 62, # 67 Exhibit 63, # 68 Exhibit 64, # 69 Exhibit 65, # 70 Exhibit 66, # 71 Exhibit 67, # 72 Exhibit 68, # 73 Exhibit 69, # 74 Exhibit 70, # 75 Exhibit 71, # 76 Exhibit 72, # 77 Exhibit 73, # 78 Exhibit 74, # 79 Exhibit 75, # 80 Exhibit 76, # 81 Exhibit 77, # 82 Exhibit 78, # 83 Exhibit 79, # 84 Exhibit 80, # 85 Exhibit 81, # 86 Exhibit 82, # 87 Exhibit 83, # 88 Exhibit 84, # 89 Exhibit 85, # 90 Exhibit 86, # 91 Exhibit 87, # 92 Exhibit 88)(Post, Ryan) Modiﬁed on 8/31/2018 to strike ﬁling no. 127-2 and 127-47 per order 155 (LKO). (Entered: 07/27/2018)
128 RESTRICTED DOCUMENT Brief in Support regarding MOTION for Partial Summary Judgment 125 , MOTION to Restrict pursuant to the E-Government Act 126 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Jones, Danielle) (Entered: 07/27/2018)
129 TEXT ORDER granting 126 Motion to Restrict pursuant to the E-Government Act. Access to Defendants' Brief 128 and Index of Evidence 127 in Support of their Partial Motion for Summary Judgment 125 shall remain restricted to court users and case participants. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/30/2018)
130 BRIEF in opposition to MOTION to Quash Subpoena 108 by Attorney David A. Lopez

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on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 08/03/2018)

08/03/2018

131 Certiﬁcate of Service of Plaintiffs' First Supplemental Response to Defendants' First Set of Interrogatories by Attorney Robert E. McEwen on behalf of Plaintiffs James Curtright, Hannah Sabata.(McEwen, Robert) (Entered: 08/03/2018)

08/09/2018

132 Certiﬁcate of Service by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 08/09/2018)

08/10/2018 133 REPLY BRIEF in support of MOTION to Quash Subpoena 108 by Attorney Shawn D. Renner on behalf of Movant Marshall Lux.(Renner, Shawn) (Entered: 08/10/2018)

08/10/2018

134 INDEX in support of MOTION to Quash Subpoena 108 by Attorney Shawn D. Renner on behalf of Movant Marshall Lux. (Attachments: # 1 Afﬁdavit Marshall Lux)(Renner, Shawn) (Entered: 08/10/2018)

08/10/2018

135 TEXT ORAL MOTION - by Attorney Robert E. McEwen on behalf of Plaintiffs requesting a telephone conference to discuss a discovery dispute. (SMN) (Entered: 08/10/2018)

08/10/2018

136 TEXT ORDER granting 135 Oral Motion. A Telephone Conference to discuss the parties' discovery dispute is set for August 23, 2018, at 3:30 p.m. before Magistrate Judge Michael D. Nelson. The parties shall use the Case Conference Instructions associated with this case. On or before August 20, 2018, the parties shall submit to nelson@ned.uscourts.gov (1) a short argument (1-3 pages) containing their respective positions and (2) a joint Discovery Dispute Form chart that sets forth each disputed discovery request, available at https://www.ned.uscourts.gov/attorney/judgesinformation/cheryl-r-zwart. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 08/10/2018)

08/20/2018

137 MOTION to Continue Telephone Conference Regarding Discovery Dispute by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 08/20/2018)

08/20/2018

138 BRIEF in support of MOTION to Continue Telephone Conference Regarding Discovery Dispute 137 by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 08/20/2018)

08/20/2018

139 Certiﬁcate of Service of the Defendants' Responses to the Plaintiffs' Sixth Set of Requests for Production of Documents by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Jones, Danielle) (Entered: 08/20/2018)

08/21/2018

140 RESPONSE regarding MOTION to Continue Telephone Conference Regarding Discovery Dispute 137 Plaintiffs' Opposition by Attorney Amy Fettig on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Appendix Index of Evidence, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C)(Fettig, Amy) (Entered: 08/21/2018)

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141 JOINT MOTION for Protective Order by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/21/2018)

08/21/2018

142 STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL RULES, REGULATIONS, AND POLICIES - Pursuant to Fed. R. Civ. P. 26(c), the Court ﬁnds good cause for the issuance of a qualiﬁed protective order, grants the parties' Joint Motion 141 . Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 08/21/2018)

08/21/2018 143 MOTION to be added as a plaintiff on behalf of Interested Party Jesse Blackstock. (LKO) (Entered: 08/21/2018)

08/21/2018

144 TEXT ORDER granting 137 Defendants' Motion to Continue (Opposed). The Telephone Conference to discuss the parties' discovery dispute is continued to August 30, 2018, at 3:00 p.m. before Magistrate Judge Michael D. Nelson. The parties shall use the Case Conference Instructions associated with this case. The completed discovery dispute chart and arguments shall be submitted to nelson@ned.uscourts.gov on or before August 27, 2018. The Court expects the parties to be fully prepared to discuss and address all outstanding discovery disputes. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 08/21/2018)

08/21/2018

145 MOTION to Strike Restricted Document,,,,,,,, 127 by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Jones, Danielle) (Entered: 08/21/2018)

08/21/2018

146 RESTRICTED DOCUMENT regarding MOTION to Restrict pursuant to the EGovernment Act 126 , MOTION to Strike Restricted Document,,,,,,,, 127 145 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Exhibit 1, # 2 Exhibit 43)(Jones, Danielle) (Entered: 08/21/2018)

08/22/2018

147 MOTION to Extend Time to Respond to Requests for Entry Onto Designated Land by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/22/2018)

08/23/2018

148 Certiﬁcate of Service of Defendants responses to Plaintiffs Requests for Entry Onto Designated Land or Other Property by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/23/2018)

08/30/2018

149 MOTION to Stay Discovery by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/30/2018)

08/30/2018

150 BRIEF in support of MOTION to Stay Discovery 149 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/30/2018)

08/30/2018

151 UNOPPOSED MOTION to Extend TIME TO FILE PLAINTIFFS BRIEF IN OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT by Attorney Robert E. McEwen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(McEwen, Robert) (Entered: 08/30/2018)

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152 INDEX in support of MOTION to Stay Discovery 149 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit Ryan S. Post, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Afﬁdavit Phillip Greenwood, # 9 Afﬁdavit Abby Carbaugh, # 10 Afﬁdavit Paul Norrid)(Post, Ryan) (Entered: 08/30/2018)
153 TEXT MINUTE ENTRY for telephone conference held on August 30, 2018, before Magistrate Judge Michael D. Nelson with counsel for the parties. Discussion held regarding the status of pending motions and several discovery disputes. Further order to be issued in accordance with the discussion. Reporter: Digital Recorder. Time Start: 3:03 PM; Time Stop: 3:43 PM; Time in Court: 41 Minutes. (SMN) (Entered: 08/30/2018)
154 Certiﬁcate of Service of Plaintiffs' Supplemental Rule 26(a)(1)(A)(ii) Disclosures (Production of Documents) by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 08/30/2018)
156 RESTRICTED AUDIO FILE (9.7 MB) regarding Telephone Conference, 153 held on 8/30/2018 at 3:03 p.m. before Magistrate Judge Michael D. Nelson. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(e). (SLP) (Entered: 08/31/2018)
155 ORDER - The parties are to meet and confer to further attempt to resolve their ongoing discovery disputes. On or before September 13, 2018 , Plaintiffs shall ﬁle supplemental brieﬁng on any outstanding disputes. Defendants shall ﬁle their supplemental brieﬁng on or before September 27, 2018 . Unless the Court is notiﬁed otherwise, it will then make its rulings on the parties' Joint Discovery Dispute Chart. The Motion (Filing No. 143 ) deadline for the document ﬁled by non-party Jesse Blackstock is terminated. The document requires no court ruling and is simply a putative class member's written interest in joining the class, if one is certiﬁed. Defendants' Motion to Strike (Filing No. 145 ) is unopposed and is therefore granted. Defendants' exhibits at Filing No. 127 -2 and Filing No. 127 -47 are hereby stricken from Defendants' Index of Evidence (Filing No. 127 ), as they were ﬁled in error. The Court will consider the corrected exhibits at Filing No. 146 when ruling on Defendants' Motion for Partial Summary Judgment (Filing No. 125 ). Defendants' Motion for Extension of Time (Filing No. 147 ) to serve objections to the Plaintiffs' proposed facility tours is granted, as Plaintiffs do not object to the extension. Plaintiffs' Unopposed Motion for Extension of Time to File a Brief in Opposition to Defendants' Motion for Partial Summary Judgment (Filing No. 151 ) is granted. Plaintiffs shall have an extension of time to September 7, 2018 , to ﬁle their response to Defendants' Motion for Partial Summary Judgment (Filing No. 125 ). Defendants are granted an extension to September 21, 2018 , to ﬁle a Reply. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 08/31/2018)
157 MOTION for Admission Pro Hac Vice Filing fee $ 100, receipt number ANEDC3756488 by Attorney Jennifer Wedekind on behalf of Plaintiffs Dylan Cardeilhac, James

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Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Wedekind, Jennifer) (Entered: 09/04/2018)
158 TEXT ORDER granting Motion for Admission Pro Hac Vice 157 for attorney Jennifer Wedekind. Ordered by Deputy Clerk. (JLS) (Entered: 09/04/2018)
159 MOTION to Restrict pursuant to the E-Government Act by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 09/07/2018)
160 RESTRICTED DOCUMENT Index of Evidence in Support of Plaintiffs Opposition to Defendants Motion for Partial Summary Judgment regarding MOTION to Restrict pursuant to the E-Government Act 159 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Cardeilhac Declaration, # 2 Exhibit 1, # 3 Sabata Declaration, # 4 Curtright Declaration, # 5 Exhibit A, # 6 Galle Declaration, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Griswold Declaration, # 10 Gunther Declaration, # 11 Exhibit A, # 12 Exhibit B, # 13 Exhibit C, # 14 Exhibit D, # 15 Exhibit E, # 16 Exhibit F, # 17 Exhibit G, # 18 Exhibit H, # 19 Exhibit I, # 20 Exhibit J, # 21 Exhibit K, # 22 Exhibit L, # 23 Exhibit M, # 24 Norris Declaration, # 25 Exhibit 1, # 26 R.P. Declaration, # 27 Reeves Delcaration, # 28 Exhibit 1, # 29 Exhibit 2, # 30 Rena Declaration, # 31 Sweetser Delcaration, # 32 Exhibit A, # 33 Exhibit B, # 34 Exhibit C, # 35 Vail Declaration,

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# 36 Exhibit 1, # 37 Exhibit 2, # 38 Stewart Declaration, # 39 Exhibit 1, # 40 Exhibit 2, # 41 Leone Declaration, # 42 Exhibit 1, # 43 Exhibit 2, # 44 Exhibit 3, # 45 Objections to Defendants' Afﬁdavits, # 46 Janssen Declaration, # 47 Exhibit 1, # 48 Exhibit 2, # 49 Exhibit 3, # 50 Exhibit 4, # 51 Exhibit 5, # 52 Exhibit 6, # 53 Exhibit 7, # 54 Exhibit 8, # 55 Exhibit 9, # 56 Exhibit 10, # 57 Exhibit 11, # 58 Exhibit 12, # 59 Exhibit 13, # 60 Exhibit 14, # 61 Exhibit 15, # 62 Exhibit 16)(Janssen, Kara) (Entered: 09/07/2018)

09/07/2018

161 TEXT ORDER granting 159 Motion to Restrict pursuant to the E-Government Act. Access to Plaintiffs' Index in Opposition To Defendants' Motion For Partial Summary Judgment 160 shall remain restricted to court users and case participants. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 09/07/2018)

09/07/2018

162 RESPONSE regarding MOTION for Partial Summary Judgment 125 Plaintiffs' Opposition by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 09/07/2018)

09/12/2018

163 JOINT STIPULATION Regarding Expert Tours by Attorney Amy Fettig on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Fettig, Amy) (Entered: 09/12/2018)

09/13/2018

164 BRIEF in support of Position Statement on Discovery Disputes by Attorney Jennifer Wedekind on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Wedekind, Jennifer) (Entered: 09/13/2018)

09/13/2018

165 INDEX in support of Brief, 164 in support of Position Statement on Discovery Disputes by Attorney Jennifer Wedekind on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Exhibit 1-Fettig Declaration, # 2 Exhibit 2, # 3 Exhibit 3,

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# 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11-Haney Declaration, # 12 Exhibit 11a)(Wedekind, Jennifer) (Entered: 09/13/2018)

09/13/2018

166 BRIEF in opposition to MOTION to Stay Discovery 149 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 09/13/2018)

09/14/2018

167 TEXT ORDER approving 163 Stipulation Regarding Expert Tours. The parties shall comply with the terms of their joint stipulation during the expert inspections of Nebraska Department of Correctional Services facilities. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 09/14/2018)

09/20/2018

168 REPLY BRIEF in support of MOTION to Stay Discovery 149 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 09/20/2018)

09/21/2018

169 UNOPPOSED MOTION to Extend by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 09/21/2018)

09/21/2018

170 TEXT ORDER granting 169 Unopposed Motion to Extend. Defendants shall have an extension of time to September 28, 2018, to ﬁle a reply brief in support of its Motion for Partial Summary Judgment 125 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 09/21/2018)

09/26/2018

171 SUPPLEMENT regarding Response, 162 Notice of Supplemental Authority by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 09/26/2018)

09/27/2018

172 MOTION for Admission Pro Hac Vice Filing fee $ 100, receipt number CNEDC3773922 by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 09/27/2018)

09/27/2018 173 TEXT ORDER granting Motion for Admission Pro Hac Vice 172 for attorney Lauren Kuhlik. Ordered by Deputy Clerk. (KMG) (Entered: 09/27/2018)

09/27/2018

174 BRIEF in support of Position Statement on Discovery Disputes by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 09/27/2018)

09/27/2018

175 INDEX in support of Brief, 174 in support of Position Statement on Discovery Disputes by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 O'Brien Declaration, # 2 Exhibit)(O'Brien, Katherine) (Entered: 09/27/2018)

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176 OBJECTION to [160-35], [160-38], and [160-41] by Attorney Danielle L. Jones on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Jones, Danielle) (Entered: 09/28/2018)
177 MOTION to Restrict pursuant to the E-Government Act by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 09/28/2018)
178 RESTRICTED DOCUMENT regarding MOTION to Restrict pursuant to the EGovernment Act 177 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Exhibit Response to Objections, # 2 Afﬁdavit Rowley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Afﬁdavit Williams, # 10 Afﬁdavit Smith, # 11 Afﬁdavit Forgey, # 12 Afﬁdavit Randazzo, # 13 Exhibit 1, # 14 Afﬁdavit Kinlund, # 15 Afﬁdavit Golliday, # 16 Afﬁdavit Folts-Oberle, # 17 Afﬁdavit Thomas, # 18 Afﬁdavit McGill, # 19 Afﬁdavit Thompson, # 20 Exhibit 1)(Rowley, Danielle) (Entered: 09/28/2018)
179 RESTRICTED DOCUMENT Reply Brief in Support of Defendants Partial Motion for Summary Judgment regarding MOTION to Restrict pursuant to the E-Government Act 177 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 09/28/2018)
180 TEXT ORDER granting 177 Motion to Restrict pursuant to the E-Government Act. Access to Defendants' Reply Brief 179 and Index of Evidence 178 in Support of their Partial Motion for Summary Judgment shall remain restricted to court users and case participants. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 10/02/2018)
181 TEXT ORAL MOTION - by counsel for the ACLU on behalf of the plaintiffs requesting a telephone conference to discuss the parties' ongoing disputes regarding the expert tours. (SMN) (Entered: 10/02/2018)
182 TEXT ORDER granting 181 Oral Motion. A telephone conference is set for October 5,

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2018, at 2:30 p.m. CDT before Magistrate Judge Michael D. Nelson. The parties shall use the Case Conference Instructions associated with this case 74 . On or before October 4, 2018, the parties may provide the undersigned at nelson@ned.uscourts.gov with a 1-3 page statement containing any additional argument or stipulations not contained in their previous briefs and submissions to the court regarding the expert tour issues. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 10/02/2018)
183 FINAL MOTION for Leave to File Brief in Opposition to Defendants' Objections by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Exhibit Proposed Brief)(Kuhlik, Lauren) (Entered: 10/05/2018)
184 TEXT MINUTE ENTRY for proceedings held on October 5, 2018, by telephone with counsel for the parties before Magistrate Judge Michael D. Nelson. Discussion held regarding two pressing disputes regarding the scheduled expert tours. Court facilitated agreements on the issues. Written order forthcoming in accordance with the discussion. Reporter: Portable Digital Recorder. Time Start: 2:30 PM; Time Stop: 3:42 PM; Time in Court: 1 Hour 12 minutes. (SMN) (Entered: 10/05/2018)
188 RESTRICTED AUDIO FILE (16.3 MB) regarding Telephone Conference 184 held on 10/5/2018 at 2:30 p.m. before Magistrate Judge Michael D. Nelson. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(e). (SLP) (Entered: 10/15/2018)
185 ORDER - This matter is before the Court following a telephone conference held with counsel for the parties on October 5, 2018, to resolve two issues related to Plaintiffs' upcoming expert tours of the Nebraska Department of Correctional Services ("NDCS") facilities. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 10/09/2018)
186 TEXT ORDER granting 183 Plaintiffs' Motion for Leave to File Brief in Opposition to Defendants' Objections. Plaintiffs' Brief at Filing [183-1] will be considered instanter and need not be re-ﬁled. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 10/09/2018)
187 AMENDED STIPULATED PROTECTIVE ORDER - In consideration of the proceedings held on October 5, 2018, by telephone with the parties, the Court's Order issued on October 10, 2018 (Filing 185 ), and upon review of the proposed Amended Stipulated Protective Order emailed to the undersigned magistrate judge's chambers, IT IS ORDERED that the parties' Amended Stipulated Protective Order is entered. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 10/12/2018)
189 NOTICE of Change of Address by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser (BienKahn, Benjamin) (Entered: 10/15/2018)
190 REQUEST FOR TRANSCRIPT for proceedings held on October 5, 2018 before Magistrate Judge Michael D. Nelson regarding Minutes, Filing 184 Telephone Conference, by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 10/15/2018)
191 *EXPEDITED* LETTER BY CLERK that a transcript request was sent to Rogene Schroder for transcription regarding Telephone Conference 184 . Transcript ordered by Attorney Katherine O'Brien. ACCESS TO THE PDF DOCUMENT IS RESTRICTED

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10/17/2018

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TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE EGOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (KLF) (Entered: 10/15/2018)
192 TEXT ORAL MOTION - by counsel for the parties requesting a telephone conference to resolve a discovery dispute. (SMN) (Entered: 10/16/2018)
193 TEXT ORDER granting 192 Oral Motion. Telephone conference set for October 16, 2018, at 10:30 a.m. before Magistrate Judge Michael D. Nelson. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 10/16/2018)
194 TEXT MINUTE ENTRY for proceedings held on October 16, 2018, by telephone before Magistrate Judge Michael D. Nelson. Discussion and arguments held regarding whether Plaintiffs' counsel can have unilateral and conﬁdential communications cell side with putative class member inmates for the purpose of informing them about this lawsuit. The court instructed the parties that defense counsel can be present for such informative cell side communications with putative class inmates, but that further private discussion with Plaintiffs' counsel shall be allowed if requested by an inmate. (SMN) (Entered: 10/16/2018)
195 TRANSCRIPT (UNREDACTED) of Proceedings before Magistrate Judge Michael D. Nelson held on October 5, 2018. Total Number of Billable Pages: 51. Total Number of Pages: 51. In accordance with the transcript redaction procedure, available at

http://www.ned.uscourts.gov/internetDocs/pom/tran_redaction_procedure.pdf,

the transcript can only be viewed at the courts public terminal or purchased through Transcriber Rogene S. Schroder at (402) 661-7383 or roschrod79@yahoo.com 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. Redaction Request due 11/7/2018. Redacted Transcript Deadline set for 11/19/2018. Release of Transcript Restriction set for 1/15/2019. (RSS) Modiﬁed on 1/16/2019 to release transcript restrict (LKO). (Entered: 10/17/2018)

11/05/2018

196 TEXT ORAL MOTION - by counsel for the parties requesting a telephone conference to resolve a discovery dispute. (JLM) (Entered: 11/05/2018)

11/05/2018

197 TEXT ORDER granting 196 Oral Motion. Telephone Conference set for 11/5/2018 at 11:40 AM by Telephone before Magistrate Judge Michael D. Nelson. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 11/05/2018)

11/05/2018

198 MOTION to Withdraw as Attorney Debra Patkin by Attorney Anna P. Bitencourt Emilio on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bitencourt Emilio, Anna) (Entered: 11/05/2018)

11/05/2018

199 TEXT MINUTE ENTRY for proceedings held on November 5, 2018, by telephone before Magistrate Judge Michael D. Nelson. Discussion and arguments held regarding whether Defendants must provide the names of inmates on the medical information list provided to Plaintiffs. The court instructed Defendants to regenerate the list with the identifying inmate information requested by Plaintiffs. (SMN) (Entered: 11/05/2018)

11/05/2018

200 TEXT ORDER granting 198 Motion to Withdraw as Attorney. Debra Patkin is granted leave to withdraw as counsel of record for Plaintiffs as she is no longer employed with the National Association of the Deaf. Ms. Patkin shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 11/05/2018)

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District of Nebraska
201 Certiﬁcate of Service of Plaintiffs' Notice of Deposition of Harbans Deol by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 11/07/2018)
202 Certiﬁcate of Service of Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition of NDCS by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 11/07/2018)
203 Certiﬁcate of Service of Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition of Nebraska Board of Parole by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 11/09/2018)
204 MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/20/2018)
205 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. 204 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/20/2018)
206 MOTION to Restrict pursuant to the E-Government Act Defendants' Index of Evidence in Support of Motion to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/20/2018)
207 RESTRICTED DOCUMENT regarding MOTION to Restrict pursuant to the EGovernment Act Defendants' Index of Evidence in Support of Motion to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. 206 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit Jaymie Clark)(Post, Ryan) (Entered: 11/20/2018)
208 TEXT ORDER granting 206 Motion to Restrict pursuant to the E-Government Act. Access to Defendants' Index of Evidence in Support of Suggestion of Mootness 207 shall remain restricted to case participants and court users. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 11/20/2018)
209 MOTION for Admission Pro Hac Vice Filing fee $ 100, receipt number ANEDC3807450 by Attorney Aaron T. Goodman on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Goodman, Aaron) (Entered: 11/20/2018)
210 TEXT ORDER granting Motion for Admission Pro Hac Vice 209 for attorney Aaron T. Goodman. Ordered by Deputy Clerk. (KMG) (Entered: 11/20/2018)
211 JOINT MOTION to Amend Order on Motion for Miscellaneous Relief,,,,, 95 Setting

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12/11/2018 12/11/2018 12/21/2018 12/21/2018 12/26/2018 12/27/2018 12/27/2018
12/28/2018

District of Nebraska
Final Schedule For Progression by Attorney Robert E. McEwen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (McEwen, Robert) (Entered: 11/28/2018)
212 ORDER - that the parties' Joint Stipulated Motion to Amend Order Setting Final Schedule for Progression (Filing No. 211) is granted, and the provisions of the Court's previous orders remain in effect, and in addition to those provisions, the following date changes shall apply: Motions for Class Certiﬁcation. a. Any motion to certify this case as a class action shall be ﬁled by February 19, 2019, in the absence of which any claim in the pleadings that this is a class action shall be deemed abandoned, and the case shall proceed, for purposes of Fed. R. Civ. P. 23, as if a motion for class certiﬁcation had been ﬁled and denied by the Court. b. Defendants shall ﬁle their response to Plaintiffs' class certiﬁcation motion by April 26, 2019. c. Plaintiffs may ﬁle a reply by May 24, 2019. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 11/29/2018)
213 RESPONSE regarding MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff R.P. 204 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 12/11/2018)
214 Certiﬁcate regarding Response, 213 of Service by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 12/11/2018)
215 Certiﬁcate of Service of the Defendants' First Supplemental Responses to the Plaintiffs' Sixth Set of Requests for Production of Documents by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 12/21/2018)
216 Certiﬁcate of Service of Defendants' Second Set of Interrogatories by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 12/21/2018)
217 JOINT MOTION for Protective Order by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 12/26/2018)
218 STIPULATED PROTECTIVE ORDER REGARDING RECORDS OF DECEASED INMATES - that the Joint Motion for Entry of a Stipulated Protected Order is granted, and the parties' Stipulated Protective Order is entered. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 12/27/2018)
219 MOTION for Leave to File Supplemental Evidence Index In Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment by Attorney Ernest Galvan on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Supplement To Plaintiffs' Evidence Index, # 2 Afﬁdavit Exs. 63 and 64 to Evidence Index)(Galvan, Ernest) (Entered: 12/27/2018)
220 MOTION for Leave to File a Supplemental Index of Evidence by Attorney Ryan S. Post

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01/07/2019 01/07/2019 01/07/2019 01/09/2019 01/10/2019 01/14/2019
01/15/2019 01/18/2019 01/22/2019

District of Nebraska
on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Supplement Index of Evidence in Support of Summary Judgment, # 2 Afﬁdavit Ryan S. Post, # 3 Exhibit Forgey deposition)(Post, Ryan) (Entered: 12/28/2018)
221 BRIEF in opposition to MOTION for Leave to File Supplemental Evidence Index In Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment 219 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 12/28/2018)
222 REPLY BRIEF in support of MOTION FOR LEAVE TO FILE SUPPLEMENTAL EVIDENCE INDEX IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Kuhlik, Lauren) (Entered: 01/04/2019)
223 MOTION for Summary Judgment by Attorney Scott R. Straus on behalf of Defendant Julie Micek.(Straus, Scott) (Entered: 01/07/2019)
224 INDEX in support of MOTION for Summary Judgment 223 by Attorney Scott R. Straus on behalf of Defendant Julie Micek. (Attachments: # 1 Declaration of Julie Micek)(Straus, Scott) (Entered: 01/07/2019)
225 BRIEF in support of MOTION for Summary Judgment 223 by Attorney Scott R. Straus on behalf of Defendant Julie Micek.(Straus, Scott) (Entered: 01/07/2019)
226 Certiﬁcate of Service of the Defendants' Second Supplemental Responses to the Plaintiffs' Sixth Set of Requests for Production of Documents by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 01/09/2019)
227 Certiﬁcate of Service of Defendants' Supplemental Expert Disclosures by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 01/10/2019)
228 Certiﬁcate of Service of the Defendants' First Supplemental Responses to the Plaintiffs' First, Second, Third, Fourth and Fifth Set of Requests for Production of Documents and Third Supplemental Responses to Plaintiffs' Sixth Set of Requests for Production of Documents by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 01/14/2019)
229 Certiﬁcate of Service of the Defendants' Second Supplemental Responses to the Plaintiffs' Fourth Set of Requests for Production of Documents and Fourth Supplemental Responses to Plaintiffs' Sixth Set of Requests for Production of Documents by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 01/15/2019)
230 TEXT ORDER SETTING Telephone Status Conference for Monday, January, 28, 2019, at 10:30 AM CST before Magistrate Judge Michael D. Nelson. The parties shall use the Case Conference Instructions associated with this case. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 01/18/2019)
231 TEXT ORDER denying 219 Plaintiffs' Motion for Leave to File Supplemental Evidence;

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granting 220 Defendants' Motion for Leave to File Supplemental Index of Evidence. The Court will consider Defendants' Supplemental Index at ﬁling no. 220 containing the entire deposition of Nadine Forgey when ruling on Defendants' Motion for Partial Summary Judgment 125 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 01/22/2019)

01/28/2019

232 TEXT MINUTE ENTRY for telephonic Status Conference held with counsel for the parties on January 28, 2019, before Magistrate Judge Michael D. Nelson. Discussion held regarding status of outstanding discovery disputes and pending motions referred to the magistrate judge. Further order to be entered in accordance with the discussion. Reporter: Portable Digital Recorder. Time Start: 10:34 AM; Time Stop: 11:03 AM; Time in Court: 29 Minutes. (SMN) (Entered: 01/28/2019)

01/28/2019 233 AUDIO FILE. Court Date & Time [ 01/28/2019 10:18:39 AM ]. File Size [ 7242 KB ]. Run Time [ 00:30:11 ]. (Telephone Conference). (auto-docket). (Entered: 01/28/2019)

01/28/2019

234 LETTER BY CLERK that a transcript request was sent to Lisa Grimminger for transcription regarding Status Conference 232 . Transcript ordered by Magistrate Judge Michael D. Nelson. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (KLF) (Entered: 01/28/2019)

01/28/2019

235 MOTION to Restrict pursuant to the E-Government Act Attachment 5 to Plaintiffs' Index of Evidence in Support of Plaintiffs' Opposition to Motion for Summary Judgment by Defendant Julie Micek by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bien-Kahn, Benjamin) (Entered: 01/28/2019)

01/28/2019

236 ORDER - Defendants' Motion to Stay Discovery (Filing No. 149 ) is deemed withdrawn. On or before February 8, 2019, the parties shall submit a revised discovery dispute chart to the undersigned magistrate judge at nelson@ned.uscourts.gov. The parties may also separately submit short written arguments to supplement the chart, as needed. A status conference is set for February 12, 2019, at 9:00 a.m. CST by telephone before the undersigned magistrate judge. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 01/28/2019)

01/28/2019

237 RESTRICTED DOCUMENT Plaintiffs' Index of Evidence in Support of Plaintiffs' Opposition to Motion for Summary Judgment by Defendant Julie Micek regarding MOTION to Restrict pursuant to the E-Government Act Attachment 5 to Plaintiffs' Index of Evidence in Support of Plaintiffs' Opposition to Motion for Summary Judgment by Defendant Julie Micek 235 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Afﬁdavit Decl. of Benjamin Bien-Kahn, # 2 Exhibit A to Bien-Kahn Decl., # 3 Exhibit B to Bien-Kahn Decl., # 4 Afﬁdavit Decl. of Hannah Sabata, # 5 Exhibit 1 to Sabata Decl., # 6 Afﬁdavit Decl. of Pablo Stewart)(Bien-Kahn, Benjamin) (Entered: 01/28/2019)

01/28/2019

238 BRIEF in opposition to MOTION for Summary Judgment 223 Plaintiffs' Brief in Opposition to Motion for Summary Judgment by Defendant Julie Micek by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason

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02/11/2019 02/19/2019

District of Nebraska
Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bien-Kahn, Benjamin) (Entered: 01/28/2019)
239 TEXT ORDER granting 235 Motion to Restrict pursuant to the E-Government Act. Access to Plaintiffs' Exhibit 1 to the Declaration of Hannah Sabata [237-5] shall remain restricted to case participants and court users. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 01/28/2019)
240 TRANSCRIPT (UNREDACTED) of telephonic Status Conference before Magistrate Judge Michael D. Nelson held on January 28, 2019. Total Number of Billable Pages: 21. Total Number of Pages: 21. In accordance with the transcript redaction procedure, available at
http://www.ned.uscourts.gov/internetDocs/pom/tran_redaction_procedure.pdf,
the transcript can only be viewed at the courts public terminal or purchased through Transcriber Lisa Grimminger at (402) 661-7379 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. Redaction Request due 2/21/2019. Redacted Transcript Deadline set for 3/4/2019. Release of Transcript Restriction set for 5/1/2019. (LGG) Modiﬁed on 5/2/2019 to release transcript restrict (LKO). (Entered: 01/31/2019)
241 UNOPPOSED MOTION to Extend Time MOTION for Summary Judgment 223 by Attorney Scott R. Straus on behalf of Defendant Julie Micek.(Straus, Scott) (Entered: 02/04/2019)
242 TEXT ORDER granting 241 Unopposed Motion to Extend. Defendant Julie Micek shall have an extension of time to February 11, 2019, to ﬁle a reply brief in support of her Motion for Summary Judgment 223 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 02/04/2019)
243 Certiﬁcate of Service of Plaintiffs' Response to Defendants' Second Set of Interrogatories by Attorney Amy Fettig on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Fettig, Amy) (Entered: 02/08/2019)
244 TEXT ORDER - The telephone conference scheduled for February 12, 2019, is cancelled. Counsel for the parties have notiﬁed the court that the conference is no longer necessary. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 02/11/2019)
245 INDEX in support of MOTION for Summary Judgment 223 by Attorney Scott R. Straus on behalf of Defendant Julie Micek. (Attachments: # 1 Afﬁdavit, # 2 Afﬁdavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Straus, Scott) (Entered: 02/11/2019)
246 BRIEF in support of MOTION for Summary Judgment 223 Reply Brief by Attorney Scott R. Straus on behalf of Defendant Julie Micek.(Straus, Scott) (Entered: 02/11/2019)
247 MOTION to Certify Class by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 02/19/2019)

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248 MOTION to Restrict pursuant to the E-Government Act Attachments 16-18, 41, 46, 57, and 61 to Plaintiffs' Index of Evidence in Support of Plaintiffs' Motion to Certify Class by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 02/19/2019)
249 RESTRICTED DOCUMENT Index of Evidence in Support of Plaintiffs' Motion to Certify Class regarding MOTION to Certify Class 247 , MOTION to Restrict pursuant to the E-Government Act Attachments 16-18, 41, 46, 57, and 61 to Plaintiffs' Index of Evidence in Support of Plaintiffs' Motion to Certify Class 248 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Afﬁdavit of Dylan Cardeilhac, # 2 Afﬁdavit of Isaac Reeves, # 3 Afﬁdavit of Richard Griswold, # 4 Afﬁdavit of Michael Gunther, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Afﬁdavit of Zoe Rena, # 13 Exhibit A, # 14 Exhibit B, # 15 Afﬁdavit of Hannah Sabata, # 16 Exhibit A, # 17 Exhibit B, # 18 Exhibit C, # 19 Exhibit D, # 20 Exhibit E, # 21 Afﬁdavit of James Curtright, # 22 Exhibit A, # 23 Exhibit B, # 24 Exhibit C, # 25 Exhibit D, # 26 Afﬁdavit of Jason Galle, # 27 Exhibit A, # 28 Exhibit B, # 29 Exhibit C, # 30 Exhibit D, # 31 Exhibit E, # 32 Exhibit F, # 33 Exhibit G, # 34 Afﬁdavit of Brandon Sweetser, # 35 Exhibit A, # 36 Exhibit B, # 37 Exhibit C, # 38 Afﬁdavit of Pablo Stewart, # 39 Exhibit 1,

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# 40 Exhibit 2, # 41 Exhibit 3, # 42 Afﬁdavit of Craig Haney, # 43 Exhibit 1, # 44 Exhibit 2, # 45 Exhibit 3, # 46 Exhibit 4, # 47 Afﬁdavit of Eldon Vail, # 48 Exhibit 1, # 49 Exhibit 2, # 50 Afﬁdavit of Margo Schlanger, # 51 Exhibit 1, # 52 Exhibit 2, # 53 Afﬁdavit of Jay Shulman, # 54 Exhibit 1, # 55 Exhibit 2, # 56 Exhibit 3, # 57 Exhibit 4, # 58 Afﬁdavit of Marc Stern, # 59 Exhibit 1, # 60 Exhibit 2, # 61 Exhibit 3, # 62 Afﬁdavit of David Fathi, # 63 Exhibit A, # 64 Afﬁdavit of Amy Miller, # 65 Exhibit A, # 66 Afﬁdavit of Christopher Young, # 67 Exhibit A, # 68 Afﬁdavit of Anna Bitencourt, # 69 Exhibit A, # 70 Afﬁdavit of Robert McEwen, # 71 Exhibit A, # 72 Afﬁdavit of Ernest Galvan, # 73 Exhibit A, # 74 Afﬁdavit of Kara Janssen, # 75 Exhibit A, # 76 Exhibit B, # 77 Exhibit C, # 78 Exhibit D, # 79 Exhibit E, # 80 Exhibit F, # 81 Exhibit G, # 82 Exhibit H, # 83 Exhibit I, # 84 Exhibit J, # 85 Exhibit K, # 86 Exhibit L, # 87 Exhibit M, # 88 Exhibit N, # 89 Exhibit O, # 90 Exhibit P, # 91 Exhibit Q, # 92 Exhibit R, # 93 Exhibit S,

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District of Nebraska
# 94 Exhibit T, # 95 Exhibit U, # 96 Exhibit V, # 97 Exhibit W, # 98 Exhibit X, # 99 Exhibit Y, # 100 Exhibit Z, # 101 Exhibit AA, # 102 Exhibit BB, # 103 Exhibit CC, # 104 Exhibit DD)(Janssen, Kara) (Entered: 02/19/2019)
250 BRIEF in support of MOTION to Certify Class 247 by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 02/19/2019)
251 TEXT ORDER granting 248 Motion to Restrict pursuant to the E-Government Act. Access to the following of Plaintiffs' Exhibits offered in support of their Motion for Class Certiﬁcation 247 shall remain restricted to case participants and court users: Exhibits A [249-16], B [249-17], and C [249-18]; and Exhibit 3 to the Declaration of Pablo Stewart [249-41]; Exhibit 4 to the Declaration of Craig Haney [249-46]; Exhibit 4 to the Declaration of Jay Shulman [249-57]; and Exhibit 3 to the Declaration of Marc Stern [249-61]. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 02/19/2019)
252 TEXT ORDER SETTING HEARING: A telephone conference to discuss the brieﬁng schedule for Plaintiffs' Motion for Class Certiﬁcation 247 is set for February 22, 2019, at 2:00 p.m. before Magistrate Judge Michael D. Nelson. The parties shall use the Case Conference Instructions associated with this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 02/20/2019)
253 UNOPPOSED MOTION for Leave To Depose Incarcerated Named Plaintiffs by Attorney Benjamin M. Goins on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Goins, Benjamin) (Entered: 02/20/2019)
254 TEXT ORDER granting 253 Unopposed Motion for Leave to Depose Incarcerated Named Plaintiffs. See Fed. R. Civ. P. 30(a)(2)(B). Counsel for Defendants shall coordinate scheduling the requested depositions with counsel for Plaintiffs. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 02/21/2019)
255 ORDER - IT IS ORDERED: Marshall Lux, Public Counsel's, Motion to Quash (Filing No. 108 ) is granted. Ordered by Magistrate Judge Michael D. Nelson. (TCL) (Entered: 02/22/2019)
256 TEXT MINUTE ENTRY for proceedings held on February 22, 2019, by telephone before Magistrate Judge Michael D. Nelson. Discussion held regarding brieﬁng schedule for Plaintiff's Motion to Certify Class 247 . Defendants oppose shortening the brieﬁng schedule due to additional discovery and depositions necessary to respond to the motion. Accordingly, the schedule will remain as set forth in the Court's previous Order 212 . (SMN) (Entered: 02/22/2019)
257 TEXT EMAIL MOTION by counsel for Defendants requesting a telephone conference with the undersigned magistrate judge to discuss a discovery dispute. (SMN) (Entered: 02/25/2019)
258 TEXT ORDER granting 257 Email Motion. A telephone conference to discuss the parties'

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District of Nebraska
expert deposition dispute is set for March 4, 2019, at 2:00 p.m. before Magistrate Judge Michael D. Nelson. The parties shall use the Case Conference Instructions associated with this case. The parties shall email a succinct statement of their arguments to nelson@ned.uscourts.gov by 3:00 p.m. Friday, March 1, 2019. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 02/25/2019)
259 Certiﬁcate of Service of Defendants' Requests for Production by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 02/25/2019)
260 MEMORANDUM AND ORDER that Defendants' Suggestion of Mootness and Motion to Dismiss Claims of Named Plaintiff R.P. (Filing No. 204 ) is granted. Named plaintiff R.P.'s claims are dismissed without prejudice. Ordered by Judge Robert F. Rossiter, Jr. (JSF) (Entered: 02/27/2019)
261 TEXT MINUTE ENTRY for proceedings held on March 4, 2019, by telephone before Magistrate Judge Michael D. Nelson. Arguments heard regarding parties' deposition disputes. Written order to be entered. Reporter: Portable Digital Recorder. Time Start: 2:01 PM; Time Stop: 2:42 PM; Time in Court: 41 Minutes. (SMN) (Entered: 03/04/2019)
262 NOTICE of Supplemental Authority by Attorney David C. Fathi on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser (Fathi, David) (Entered: 03/04/2019)
263 AUDIO FILE. Court Date & Time [ 03/04/2019 1:54:14 PM ]. File Size [ 9901 KB ]. Run Time [ 00:41:15 ]. (Telephone Conference). (auto-docket). (Entered: 03/04/2019)
264 ORDER - Accordingly, the Court ﬁnds that Defendants may depose the experts disclosed by Plaintiffs in support of the motion for class certiﬁcation about the opinions and factual bases expressed by the experts in the disclosed reports. As stated on the record during the telephone conference, the parties shall work to schedule the plaintiffs' expert depositions no earlier than, but as early as March 25, 2019. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 03/06/2019)
265 MOTION to Withdraw as Attorney Jessica Forch by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 03/08/2019)
266 TEXT ORDER granting 265 Motion to Withdraw as Attorney. Jessica Forch is granted leave to withdraw as counsel for Defendants and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 03/08/2019)
267 MOTION for Leave to ﬁle Sur-reply in support of Motion for Partial Summary Judgment 125 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Sur-reply in support of Motion for Partial Summary Judgment 125 )(Post, Ryan) (Entered: 03/10/2019)
268 TEXT ORDER granting 267 Defendants' Motion for Leave to File a Sur-Reply. Defendants' Sur-Reply [267-1] in Support of their Motion for Partial Summary Judgment shall be considered ﬁled instanter and need not be re-ﬁled. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 03/11/2019)
269 Certiﬁcate of Service of Notice of Depositions of Plaintiffs by Attorney Scott R. Straus on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole,

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Nebraska Department of Correctional Services.(Straus, Scott) (Entered: 03/11/2019)
270 MOTION for Reconsideration regarding Memorandum and Order,, Terminate Motion and R&R Deadlines/Hearings,, Add and Terminate Parties, 260 by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 03/11/2019)
271 INDEX in support of MOTION for Reconsideration regarding Memorandum and Order,, Terminate Motion and R&R Deadlines/Hearings,, Add and Terminate Parties, 260 270 by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Afﬁdavit of Robert McEwen)(Janssen, Kara) (Entered: 03/11/2019)
272 BRIEF in support of MOTION for Reconsideration regarding Memorandum and Order,, Terminate Motion and R&R Deadlines/Hearings,, Add and Terminate Parties, 260 270 by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 03/11/2019)
273 INDEX in opposition to MOTION for Reconsideration regarding Memorandum and Order,, Terminate Motion and R&R Deadlines/Hearings,, Add and Terminate Parties, 260 270 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Nadine Forgey)(Post, Ryan) (Entered: 03/12/2019)
274 BRIEF in opposition to MOTION for Reconsideration regarding Memorandum and Order,, Terminate Motion and R&R Deadlines/Hearings,, Add and Terminate Parties, 260 270 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 03/12/2019)
275 REPLY BRIEF in support of MOTION for Reconsideration regarding Memorandum and Order,, Terminate Motion and R&R Deadlines/Hearings,, Add and Terminate Parties, 260 270 by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 03/15/2019)
276 Certiﬁcate of Service by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 03/18/2019)
277 Certiﬁcate of Service by Attorney Dawn M. Jenkins on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Jenkins, Dawn) (Entered: 03/27/2019)
278 Certiﬁcate of Service by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 03/28/2019)
279 Certiﬁcate of Service by Attorney Katherine O'Brien on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(O'Brien, Katherine) (Entered: 03/28/2019)

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District of Nebraska
280 MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Brandon Sweetser by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Post, Ryan) (Entered: 04/01/2019)
281 INDEX in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Brandon Sweetser 280 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Deanna Schmidt)(Post, Ryan) (Entered: 04/01/2019)
282 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Brandon Sweetser 280 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 04/01/2019)
283 MOTION to Withdraw as Attorney by Attorney David J. Tarrell on behalf of Plaintiff R. P..(Tarrell, David) (Entered: 04/04/2019)
284 Certiﬁcate of Service of Amended Notice of Deposition by Attorney Scott R. Straus on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Straus, Scott) (Entered: 04/05/2019)
285 Certiﬁcate of Service by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 04/08/2019)
286 TEXT ORDER granting 283 Motion to Withdraw as Attorney. David Tarrell is granted leave to withdraw as counsel for Plaintiff R.P. and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 04/09/2019)
287 JOINT MOTION to Amend Order Setting Schedule for Initial Progression of a Civil Case 77 , Order on Motion to Amend,,, 212 , Order on Motion for Miscellaneous Relief,,,,, 95 by Attorney Ernest Galvan on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Galvan, Ernest) (Entered: 04/11/2019)
288 Certiﬁcate of Service by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 04/11/2019)
289 AMENDED PROGRESSION ORDER - This matter comes before the court on the parties' Joint Motion to Amend Case Progression Order (Filing No. 287 ). After review of the motion, the Court ﬁnds good cause to extend the case progression deadlines. The nonjury trial of this case is set to commence before Robert F. Rossiter, Jr., United States District Judge, in Courtroom 3, United States Courthouse, Lincoln, Nebraska, at 9:00 a.m. on March 9, 2020, or as soon thereafter as the case may be called, for a duration of ﬁfteen (15) trial days. This case is subject to the prior trial of other civil cases that may be scheduled for trial before this one. The Pretrial Conference is scheduled before the undersigned magistrate judge on February 28, 2020, at 10:00 a.m., and will be conducted in chambers. The parties proposed Pretrial Conference Order and Exhibit List(s) must be emailed to nelson@ned.uscourts.gov, in Word format, by 3:00 p.m. on February 21, 2020. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO) (Entered: 04/11/2019)

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District of Nebraska
290 TEXT JOINT ORAL MOTION - by counsel for the parties, requesting a telephone conference to discuss an extension of the deadline to amend pleadings. (JLM) (Entered: 04/11/2019)
291 TEXT ORDER granting 290 Oral Motion. A Telephone Conference is set for Friday, April 19, 2019, at 02:00 PM CDT before Magistrate Judge Michael D. Nelson. The parties shall call in using the Case Conference Instructions associated with this case. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 04/11/2019)
292 MOTION for Partial Summary Judgment by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 04/18/2019)
293 INDEX in support of MOTION for Partial Summary Judgment 292 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Candace Bottorf, # 2 Exhibit 1, # 3 Afﬁdavit of Sherry Gerken, # 4 Exhibit 1, # 5 Afﬁdavit of Ryan S. Post, # 6 Exhibit 1, # 7 Exhibit 2)(Post, Ryan) (Entered: 04/18/2019)
294 BRIEF in support of MOTION for Partial Summary Judgment 292 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 04/19/2019)
295 TEXT ORDER - In accordance with the discussion held with counsel during the telephone conference on April 19, 2019, the deadline to ﬁle any motion to amend pleadings and/or add parties is extended to 14-days after the Court rules on Plaintiffs' Motion to Certify Class 247 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 04/19/2019)
296 Certiﬁcate of Service by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 04/19/2019)
297 INDEX in opposition to MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Brandon Sweetser 280 Plaintiffs' Evidence Index by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Exhibit 1 - Request for Judicial Notice, # 2 Exhibit 2 - Declaration of Benjamin Bien-Kahn, # 3 Exhibit 3 - Bureau of Justice Statistics Report, Time Served in State Prison, 2016) (Bien-Kahn, Benjamin) (Entered: 04/22/2019)
298 BRIEF in opposition to MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Brandon Sweetser 280 by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Bien-Kahn, Benjamin) (Entered: 04/22/2019)
299 Certiﬁcate of Service for Plaintiffs' Requests for Entry Onto Designated Land or Other Property Under Fed. R. Civ. Proc. 34(a)(2) by Attorney Kara J. Janssen on behalf of

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Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 04/24/2019)

04/26/2019

300 Certiﬁcate of Service for Plaintiffs' Notice of Deposition of Defense Experts by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 04/26/2019)

04/27/2019

301 REPLY BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Brandon Sweetser 280 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 04/27/2019)

04/30/2019

302 Certiﬁcate of Service of Amended Notice of Deposition by Attorney Benjamin M. Goins on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Goins, Benjamin) (Entered: 04/30/2019)

04/30/2019

303 TEXT ORDER - Plaintiffs' Brief in Opposition to Defendants' Motion for Partial Summary Judgment 292 is due on or before May 10, 2019. Defendants may ﬁle a reply on or before May 17, 2019. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 04/30/2019)

04/30/2019

304 Certiﬁcate Of Service of Plaintiffs' Notice of Deposition of Defense Expert by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Smith, Kenneth) (Entered: 04/30/2019)

05/03/2019

305 Certiﬁcate of Service of Defendants' Fourth Supplemental Responses to Plaintiffs' Fourth Set of Requests for Production of Documents by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 05/03/2019)

05/08/2019

306 MOTION for Admission Pro Hac Vice on behalf of all plaintiffs Filing fee $ 100, receipt number ANEDC-3934089 by Attorney Brittany Shrader on behalf of Plaintiffs Dylan Cardeilhac, James Curtright.(Shrader, Brittany) (Entered: 05/08/2019)

05/08/2019 307 TEXT ORDER granting Motion for Admission Pro Hac Vice 306 for attorney Brittany Shrader. Ordered by Deputy Clerk. (JLS) (Entered: 05/08/2019)

05/08/2019

308 Certiﬁcate of Service of Defendants Responses to Plaintiffs Seventh Set of Requests for Production of Documents by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 05/08/2019)

05/10/2019

309 UNOPPOSED MOTION to Extend Time to File Brief in Opposition to Defendants' Motion for Partial Summary Judgment by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Smith, Kenneth) (Entered: 05/10/2019)

05/10/2019

310 UNOPPOSED MOTION to Extend time to ﬁle Brief in Opposition to Motion for Class Certiﬁcation by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/10/2019)

05/10/2019

311 TEXT ORDER granting 309 Plaintiffs' Unopposed Motion for Extension of Time; granting 310 Defendants' Unopposed Motion for Extension of Time. Plaintiffs shall have

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an extension to May 17, 2019, to ﬁle a brief in response to Defendants' Motion for Partial Summary Judgment 292 . Defendants shall have an extension to May 24, 2019, to ﬁle a reply. Defendants shall have an extension of time to May 13, 2019, to ﬁle a brief in opposition to Plaintiffs' Motion to Certify Class 247 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 05/10/2019)

05/10/2019

312 APPLICATION for Refund of pro hac vice admission fee paid electronically by Attorney Brittany Shrader on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther.(Shrader, Brittany) (Entered: 05/10/2019)

05/10/2019

313 Certiﬁcate of Service of Plaintiffs' Requests for Entry Upon Land by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 05/10/2019)

05/13/2019

314 MOTION to Restrict pursuant to the E-Government Act by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/13/2019)

05/13/2019

315 RESTRICTED DOCUMENT Restricted Index of Evidence in Opposition to Motion for Class Certiﬁcation 247 regarding MOTION to Restrict pursuant to the E-Government Act 314 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Terry A. Davis, M.D., J.D., # 2 Exhibit 1 (Davis CV), # 3 Afﬁdavit of Philip R. Rich, D.D.S., # 4 Exhibit 1 (Rich CV), # 5 Exhibit 2 (Rich recent case history), # 6 Exhibit 3 (NDCS chart review), # 7 Afﬁdavit of Ashley Emerson, # 8 Exhibit 1 (Dylan Cardeilhac mental health big picture), # 9 Afﬁdavit of Ryan S. Post, # 10 Exhibit 1 (Deposition of Pablo Stewart), # 11 Afﬁdavit of Eric Smith, D.D.S., # 12 Afﬁdavit of Betty Nguyen, D.D.S.)(Post, Ryan) (Entered: 05/13/2019)

05/13/2019

316 INDEX in opposition to MOTION to Certify Class 247 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Ryan S. Post, # 2 Exhibit (Deposition of Jason Galle), # 3 Exhibit (Deposition of Hannah Sabata), # 4 Exhibit (Deposition of Angelic Norris), # 5 Exhibit (Reeves Incident Report), # 6 Exhibit (Deposition of Richard Griswold), # 7 Exhibit (Deposition of Robert Madsen), # 8 Exhibit (Deposition of Dr. Harbans Deol), # 9 Exhibit (Deposition of Michael Gunther), # 10 Exhibit (Deposition of Brandon Sweetser), # 11 Exhibit (Deposition of James Curtright), # 12 Exhibit (Deposition of Eldon Vail), # 13 Exhibit (Deposition of Jay Shulman), # 14 Exhibit (AR 115.23),

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# 15 Exhibit (Deposition of Margo Schlanger), # 16 Exhibit (Deposition of Marc Stern), # 17 Exhibit (Deposition of Craig Haney), # 18 Exhibit (RTC Program Statement), # 19 Exhibit (CCCL news release), # 20 Exhibit (CCCL Program Statement), # 21 Exhibit (NSP news release), # 22 Exhibit (NSP Program Statement), # 23 Exhibit (FY16-17 Strategic Plan Progress Report), # 24 Exhibit (FY17-18 Strategic Plan Progress Report), # 25 Exhibit (CCMHU Program Overview), # 26 Exhibit (AMHU Program Overview), # 27 Exhibit (BJS Prisoners in 2017), # 28 Exhibit (Proposed Biennial Budget), # 29 Exhibit (CIR Order), # 30 Exhibit (New pay plan news release), # 31 Afﬁdavit of David L. Thomas, M.D., J.D., EdD., # 32 Exhibit (Thomas CV), # 33 Exhibit (Thomas recent testimony), # 34 Afﬁdavit of Barry Marano, # 35 Exhibit (Marano materials reviewed), # 36 Exhibit (Email from Mathews to Marano), # 37 Exhibit (Email from Miller to Marano), # 38 Afﬁdavit of Dean Aufderheide, M.A., Ph.D., # 39 Exhibit (Aufderheide CV), # 40 Exhibit (NDCS Position Control Report), # 41 Exhibit (Reorganized NDCS Position Control Report), # 42 Exhibit (Draft policy), # 43 Exhibit (Draft mission statement), # 44 Afﬁdavit of Eugene Atherton, # 45 Exhibit (Atherton CV), # 46 Exhibit (Atherton materials reviewed), # 47 Afﬁdavit of John Stoner, # 48 Exhibit (Stoner CV), # 49 Exhibit (Stoner materials reviewed), # 50 Afﬁdavit of Scott R. Straus, # 51 Exhibit (AR 004.01), # 52 Exhibit (Plaintiffs' Response to Defendants' Interrogatories, Set Two), # 53 Exhibit (AR 210.01), # 54 Exhibit (Challenge Program Overview), # 55 Exhibit (Challenge Program Progress Summary), # 56 Exhibit (AR 115.06), # 57 Exhibit (Inmate Health Plan), # 58 Exhibit (Deposition of Rosalyn Cotton), # 59 Exhibit (Board of Parole Rules), # 60 Afﬁdavit of Erinn Criner, # 61 Exhibit (Recruitment and retention initiatives), # 62 Afﬁdavit of Dawn-Renee Smith, # 63 Afﬁdavit of Lori Keller, # 64 Afﬁdavit of Sherry Gerken, # 65 Exhibit (Sabata IIR), # 66 Afﬁdavit of Kyle Mostrom, # 67 Exhibit (Sabata program completion))(Post, Ryan) (Entered: 05/13/2019)

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317 BRIEF in opposition to MOTION to Certify Class 247 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/13/2019)
318 TEXT ORDER granting 314 Motion to Restrict pursuant to the E-Government Act. Access to Defendants' Restricted Index of Evidence in Opposition to Plaintiffs' Motion for Class Certiﬁcation 315 shall remain restricted to case participants and court users. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 05/14/2019)
319 Certiﬁcate of Service of Plaintiffs' Requests for Entry onto Designated Land or Other Property Under Fed.R. Civ. Proc. 34(a)(2) by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 05/14/2019)
320 TEXT ORDER regarding Application for Refund of Fees Paid Electronically 312 . Pro Hac Vice admission fee in the amount of $100.00 is refunded to the payor, Brittany Shrader, receipt number ANEDC-3934087. Ordered by Deputy Clerk. (JLS) (Entered: 05/15/2019)
321 MOTION for Leave to Restrict by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 05/17/2019)
322 Certiﬁcate of Service by Attorney Amy Fettig on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Fettig, Amy) (Entered: 05/17/2019)
323 INDEX in support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Exhibit 1: Declaration of Marc Stern, # 2 Exhibit 2: Declaration of Zoe Rena, # 3 Exhibit 3: Declaration of Jason Galle, # 4 Exhibit 4: Declaration of Lauren Kuhlik, # 5 Exhibit 4-A: Medical Records of Zoe Rena, # 6 Exhibit 4-B: Medical Records of Jason Galle, # 7 Exhibit 4-C: Deposition of Zoe Rena, # 8 Exhibit 5: Request for Judicial Notice, # 9 Exhibit 6: Declaration of Kara Janssen, # 10 Exhibit 6-A: NDCS Inmate Locator Proﬁle for Michael Gunther, # 11 Exhibit 6-B: NDCS Inmate Locator Proﬁle for James Curtright, # 12 Exhibit 6-C: NDCS Inmate Locator Proﬁle for Richard Griswold)(Kuhlik, Lauren) (Entered: 05/17/2019)
324 BRIEF in opposition to Defendants' Motion for Partial Summary Judgment by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 05/17/2019)
325 TEXT ORDER granting 321 Motion to Restrict. Access to Plaintiffs' Exhibit A [323-5] and Exhibit B [323-6] shall remain restricted to case participants and court users. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 05/17/2019)

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District of Nebraska
326 Certiﬁcate of Service of Defendants' Responses to Plaintiffs' April 24, 2019 Requests for Entry onto Designated Land or Other Property by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/22/2019)
327 UNOPPOSED MOTION to Extend by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/24/2019)
328 TEXT ORDER granting 327 Unopposed Motion to Extend. Defendants' deadline to ﬁle a reply brief in support of their Motion for Partial Summary Judgment 292 is extended to May 31, 2019. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 05/24/2019)
329 Certiﬁcate of Service of Defendants' Second Set of Requests for Production by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/26/2019)
330 Certiﬁcate of Service of Plaintiffs' Requests for Production of Documents, Set Eight by Attorney Ernest Galvan on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Galvan, Ernest) (Entered: 05/29/2019)
331 Certiﬁcate Corrected Certiﬁcate of Service of Plaintiffs' Requests for Production of Documents, Set Eight by Attorney Ernest Galvan on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Galvan, Ernest) (Entered: 05/29/2019)
332 UNOPPOSED MOTION to Extend by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/31/2019)
333 TEXT ORDER granting 332 Unopposed Motion to Extend. Defendants' deadline to ﬁle a reply brief in support of their Motion for Partial Summary Judgment 292 is extended to June 7, 2019. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 05/31/2019)
334 INDEX in support of MOTION for Partial Summary Judgment 292 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Tanya Forney, # 2 Afﬁdavit of Amy Gartzke, # 3 Exhibit 1)(Post, Ryan) (Entered: 06/07/2019)
335 REPLY BRIEF in support of MOTION for Partial Summary Judgment 292 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 06/07/2019)
336 JOINT MOTION to Amend Case Progression Order by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 06/11/2019)
337 AMENDED PROGRESSION ORDER - IT IS SO ORDERED: The Parties' Joint Motion to Amend Case Progression Order (Filing No. 336 ) is granted. The provisions of the

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District of Nebraska
Court's previous orders remain in effect, and in addition to those provisions, the following deadlines are suspended pending a ruling on the pending motions (Filing Nos. 125, 223, 247, 270, 280, 294) and will be re-set at a scheduling conference to occur within fourteen (14) days of the Court's order resolving the last of the pending motions listed above. Ordered by Magistrate Judge Michael D. Nelson. (TCL) (Entered: 06/12/2019)
338 MOTION to Strike Reply Brief, 335 , Index, 334 by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 06/14/2019)
339 BRIEF in support of MOTION to Strike Reply Brief, 335 , Index, 334 338 by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 06/14/2019)
340 MOTION for Leave to ﬁle Supplement to Reply in Support of Motion for Partial Summary Judgment 335 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Supplement to Reply in Support of Motion for Partial Summary Judgment 335 )(Post, Ryan) (Entered: 06/17/2019)
341 BRIEF in opposition to MOTION to Strike Reply Brief, 335 , Index, 334 338 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 06/17/2019)
342 Certiﬁcate of Service of Plaintiffs' Ninth Set of Requests for Production by Attorney Ernest Galvan on behalf of Plaintiff Hannah Sabata.(Galvan, Ernest) (Entered: 06/17/2019)
343 TEXT ORDER granting 340 Motion for Leave to File Supplement to Reply Brief in Support of Motion for Partial Summary Judgment. Defendants' Supplement to Reply Brief in Support of Motion for Summary Judgment [3401-1] is considered ﬁled instanter. The Court denies Plaintiffs' Motion to Strike 338 to the extent it requests the Court strike Defendants' Reply Brief, but grants Plaintiffs' alternative request for leave to ﬁle a surreply. Plaintiffs shall ﬁle their sur-reply by June 26, 2019. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 06/19/2019)
344 MOTION for Leave to ﬁle Supplement to Brief in Opposition to Class Certiﬁcation 317 , and Supplemental Index by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Supplement to Brief in Opposition to Class Certiﬁcation 317 , # 2 Supplemental Index of Evidence in Opposition to Class Certiﬁcation, # 3 Afﬁdavit of Ryan S. Post, # 4 Exhibit (Nebraska Legislature Budget in Brief), # 5 Exhibit (NDCS Medical Protocol 18), # 6 Exhibit (LB 686), # 7 Exhibit (Board of Parole Rules revised May 21, 2019)(Post, Ryan) (Entered: 06/20/2019)
345 Certiﬁcate of Service to Plaintiffs' Responses to Defendants' Second Set of Requests for Production (Nos. 22-37) by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic

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Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 06/25/2019)

06/26/2019

346 REPLY regarding MOTION for Partial Summary Judgment 292 by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 06/26/2019)

06/26/2019

347 TEXT ORDER granting 344 Defendants' Motion for Leave to File Supplement to Brief in Opposition to Class Certiﬁcation. The Court will consider Defendants' supplemental ﬁlings at 344 when ruling on the Motion for Class Certiﬁcation. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 06/26/2019)

06/27/2019

348 UNOPPOSED MOTION to Extend Time to File Reply Brief in Support of Motion for Class Certiﬁcation by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Smith, Kenneth) (Entered: 06/27/2019)

06/27/2019

349 TEXT ORDER granting 348 Unopposed Motion to Extend. Plaintiffs may ﬁle a reply brief in support of their Motion for Class Certiﬁcation 247 on or before July 12, 2019. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 06/27/2019)

06/28/2019

350 Certiﬁcate of Service of Defendants Responses to Plaintiffs Eighth Set of Requests for Production of Documents (Nos. 189-201) by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 06/28/2019)

07/10/2019

351 MOTION to Strike Expert Declarations by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/10/2019)

07/10/2019

352 INDEX in support of MOTION to Strike Expert Declarations 351 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Ryan S. Post, # 2 Exhibit (Deposition of Margo Schlanger), # 3 Exhibit (Deposition of Eldon Vail), # 4 Exhibit (Deposition of Jay Shulman), # 5 Exhibit (Deposition of Marc Stern), # 6 Exhibit (Deposition of Craig Haney), # 7 Exhibit (Deposition of Pablo Stewart), # 8 Exhibit (Questionnaire), # 9 Afﬁdavit of Abby Carbaugh)(Post, Ryan) (Entered: 07/10/2019)

07/10/2019

353 BRIEF in support of MOTION to Strike Expert Declarations 351 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/10/2019)

07/12/2019

354 Certiﬁcate of Service of Defendants' Third Set of Requests for Production by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/12/2019)

07/12/2019

355 MOTION to Restrict pursuant to the E-Government Act by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 07/12/2019)

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356 RESTRICTED DOCUMENT Restricted Index of Evidence in support of Reply in support of Motion for Class Certiﬁcation regarding MOTION to Restrict pursuant to the EGovernment Act 355 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Declaration of Christopher Young, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Young, Christopher) (Entered: 07/12/2019)

07/12/2019

357 INDEX in support of MOTION to Certify Class 247 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Declaration of Christopher Young, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W)(Young, Christopher) (Entered: 07/12/2019)

07/12/2019

358 REPLY BRIEF in support of MOTION to Certify Class 247 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Appendix of Cases)(Young, Christopher) (Entered: 07/12/2019)

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07/15/2019 07/17/2019

359 TEXT ORDER granting 355 Motion to Restrict pursuant to the E-Government Act. Access to Plaintiffs' Index of Evidence at ﬁling 356 in support of Plaintiffs' Reply to the Motion for Class Certiﬁcation shall remain restricted to case participants and court users. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/15/2019)
360 REPLY BRIEF in support of MOTION to Certify Class 247 , Reply Brief, 358 , Index,,, 357 , Restricted Document,,, 356 (Corrected) by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Appendix of Cases)(Young, Christopher) (Entered: 07/17/2019)

07/18/2019

361 INDEX in support of MOTION to Certify Class 247 , Reply Brief, 360 , Index,,, 357 (Supplemental) by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Declaration of Christopher Young, # 2 Exhibit X)(Young, Christopher) (Entered: 07/18/2019)

07/18/2019

362 Certiﬁcate of Service of Defendants' Responses to Plaintiffs' Ninth Set of Requests for Production of Documents (Nos. 202-209) by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/18/2019)

07/19/2019

363 MOTION for Leave to ﬁle Sur-reply in Opposition to Motion for Class Certiﬁcation 247 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/19/2019)

07/23/2019 07/23/2019
07/29/2019 07/29/2019
07/29/2019

364 TEXT ORDER granting 363 Motion for Leave to File Sur-Reply. Defendants shall ﬁle the sur-reply in opposition to Plaintiffs' Motion for Class Certiﬁcation 317 on or before July 30, 2019. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/23/2019)
365 BRIEF in opposition to MOTION to Strike Expert Declarations 351 by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Exhibit Evidence Index, # 2 Exhibit 1: Declaration of Lauren Kuhlik, # 3 Exhibit 1-A: Deposition Transcript of Marc Stern)(Kuhlik, Lauren) (Entered: 07/23/2019)
366 MOTION to Strike Reply Declaration of Margo Schlanger [357-13] by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/29/2019)
367 INDEX in support of MOTION to Strike Reply Declaration of Margo Schlanger [357-13] 366 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Tammy Kluver, # 2 Exhibit 1 (ADA investigation of allegations by Michael Gunther))(Post, Ryan) (Entered: 07/29/2019)
368 BRIEF in support of MOTION to Strike Reply Declaration of Margo Schlanger [357-13] 366 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie

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District of Nebraska
Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/29/2019)
369 Certiﬁcate of Service for Plaintiffs' First Set of Requests for Admission by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 07/30/2019)
370 MOTION to Withdraw as Attorney by Attorney David A. Lopez on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Lopez, David) (Entered: 07/30/2019)
371 INDEX in opposition to MOTION to Certify Class 247 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Ryan S. Post, # 2 Exhibit Frakes testimony to Judiciary Committee, # 3 Exhibit Frakes testimony to Appropriations Committee, # 4 Exhibit Email exchange between counsel, # 5 Afﬁdavit of Dr. David Thomas, # 6 Afﬁdavit of Ben Goins, # 7 Exhibit (Deposition of Jay Shulman), # 8 Afﬁdavit of Dr. John Stoner)(Post, Ryan) (Entered: 07/30/2019)
372 BRIEF in opposition to MOTION to Certify Class 247 , Sur-reply by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/30/2019)
373 MOTION to Extend by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 07/30/2019)
374 TEXT ORDER granting 370 Motion to Withdraw as Attorney. David A. Lopez is granted leave to withdraw as counsel of record for Defendants and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/31/2019)
375 TEXT ORDER granting 373 Motion to Extend. Defendants shall have an extension of time to August 2, 2019, to ﬁle a reply brief in support of the motion to strike expert declarations 351 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 07/31/2019)
376 Certiﬁcate of Service of Defendants' First Set of Requests for Admission by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/02/2019)
377 INDEX in support of MOTION to Strike Expert Declarations 351 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Scott R. Straus, # 2 Exhibit (Deposition of Jay Shulman))(Post, Ryan) (Entered: 08/02/2019)
378 REPLY BRIEF in support of MOTION to Strike Expert Declarations 351 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/02/2019)

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379 Certiﬁcate of Service of Defendants' Third Set of Interrogatories by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/02/2019)

08/02/2019

380 Certiﬁcate of Service of Defendants' Fourth Set of Requests for Production by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/02/2019)

08/04/2019

381 Certiﬁcate of Service of Defendants' Fourth Set of Interrogatories by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/04/2019)

08/06/2019 382 TEXT ORAL MOTION - by counsel for the parties requesting a brief telephone conference to discuss a scheduling matter. (JLM) (Entered: 08/06/2019)

08/06/2019

383 TEXT ORDER granting 382 Oral Motion. A Telephone Conference set for Wednesday, August 7, 2019, at 01:00 PM CDT before Magistrate Judge Michael D. Nelson. The parties shall call in using the case conference instructions associated with this case. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 08/06/2019)

08/07/2019

384 TEXT MINUTE ENTRY for proceedings held on August 7, 2019, by telephone before Magistrate Judge Michael D. Nelson. Discussion held regarding pending motions and further supplementation of the record. Further order to be entered in accordance with the discussion. (SMN) (Entered: 08/07/2019)

08/07/2019

385 TEXT ORDER - Pursuant to the telephone conference held on August 7, 2019, Defendants' Motion to Strike Reply Declaration of Margo Schlanger 366 is deemed withdrawn, without prejudice. The parties shall expeditiously schedule the deposition of Margot Schlanger. Defendants are granted leave to ﬁle a sur-reply to the Motion for Class Certiﬁcation 247 within two weeks after the deposition takes place. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 08/07/2019)

08/08/2019

386 Certiﬁcate of Service of Notice of Deposition of Margo Schlanger by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/08/2019)

08/09/2019

387 Certiﬁcate of Service of Plaintiffs' Responses to Defendants' Third Set of Requests for Production by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 08/09/2019)

08/16/2019

388 SUPPLEMENT regarding MOTION for Partial Summary Judgment 125 Notice of Supplemental Authority by Attorney Danielle L. Rowley on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Rowley, Danielle) (Entered: 08/16/2019)

08/22/2019 389 ORDER - Defendants' Motion to Strike Expert Declarations (Filing No. 351 ) is denied. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 08/22/2019)

08/28/2019

390 MOTION for Leave to File Response to Defendants' Notice of Supplemental Authority by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Exhibit 1: Proposed Response to Defendants' Notice of Supplemental Authority) (Kuhlik, Lauren) (Entered: 08/28/2019)

08/28/2019 391 INDEX in opposition to MOTION to Certify Class 247 by Attorney Ryan S. Post on

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District of Nebraska
behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Ryan S. Post, # 2 Exhibit (Deposition of Margo Schlanger), # 3 Afﬁdavit of Tammy Kluver, # 4 Exhibit (Gunther ADA investigation))(Post, Ryan) (Entered: 08/28/2019)
392 BRIEF in opposition to MOTION to Certify Class 247 Sur-reply by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/28/2019)
393 TEXT ORDER granting 390 Motion for Leave to File a Response to Defendants' Notice of Supplemental Authority. The Court will consider the Plaintiffs' Brief at Filing No. [390-1] ﬁled instanter. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 08/29/2019)
394 Certiﬁcate of Service of Defendants' Responses to Plaintiffs' First Set of Requests for Admission by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Post, Ryan) (Entered: 08/29/2019)
395 OBJECTION TO MAGISTRATE JUDGE'S ORDER regarding Order on Motion to Strike 389 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Post, Ryan) (Entered: 09/03/2019)
396 Certiﬁcate of Service of Plaintiffs' Second Set of Requests for Admission by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 09/03/2019)
397 Certiﬁcate of Service of Plaintiffs' Tenth Set of Requests for Production of Documents by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 09/03/2019)
398 Certiﬁcate of Service of Plaintiffs' Second Set of Interrogatories by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 09/03/2019)
399 Certiﬁcate of Service of Defendants' Fifth Set of Interrogatories by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 09/03/2019)
400 TEXT REASSIGNMENT ORDER - that in the interest of judicial economy, this case is reassigned to Judge Brian C. Buescher for disposition. The magistrate judge remains assigned to the case for judicial supervision and processing of all pretrial matters. Ordered by Chief Judge John M. Gerrard. (DKM) (Entered: 09/05/2019)
401 RESPONSE regarding OBJECTION TO MAGISTRATE JUDGE'S ORDER regarding Order on Motion to Strike 389 395 by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Kuhlik, Lauren) (Entered: 09/12/2019)
402 Certiﬁcate of Service of Defendants' Supplemental Expert Disclosures by Attorney Ryan

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S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 09/23/2019)
403 Certiﬁcate of Service for Plaintiffs' Responses to Defendants' Fourth Set of Requests for Production by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 10/03/2019)
404 Certiﬁcate of Service for Plaintiffs' Response to Defendants' Third Set of Interrogatories by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 10/03/2019)
405 Certiﬁcate of Service for Plaintiffs' Response to Defendants' Interrogatories, Set Four by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 10/03/2019)
406 Certiﬁcate of Service for Plaintiffs' Response to Defendants' Fifth Set of Interrogatories by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 10/03/2019)
407 Certiﬁcate of Service for Plaintiffs' Responses to Defendant's First Set of Requests for Admissions by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 10/03/2019)
408 MOTION for Leave to Supplement the Record by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Exhibit 1: Declaration of Lauren Kuhlik, # 2 Exhibit 1-A: Frakes Memorandum)(Kuhlik, Lauren) (Entered: 10/31/2019)
409 TEXT ORAL MOTION by Attorney Ryan S. Post on behalf of counsel for Defendant, requesting a telephone conference to discuss recent ﬁlings in this case. (JLM) (Entered: 11/01/2019)
410 TEXT ORDER granting 409 Oral Motion. A Telephone Conference is set for Thursday, November 7, 2019, at 11:00 AM CST before Magistrate Judge Michael D. Nelson. The parties shall call in using the case conference instructions associated with this case. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 11/01/2019)
411 Certiﬁcate of Service of Defendants' Responses to Plaintiffs' Second Set of Requests for Admission by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Post, Ryan) (Entered: 11/04/2019)
412 INDEX in opposition to MOTION to Certify Class 247 by Attorney Phoebe L. Gydesen on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Phoebe Gydesen, # 2 Exhibit 1 (AR 115.22))(Gydesen, Phoebe) (Entered: 11/07/2019)

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413 TEXT MINUTE ENTRY for telephone conference held with counsel on November 7, 2019, before Magistrate Judge Michael D. Nelson. Discussion held regarding scheduling of oral argument before Judge Brian C. Buescher on pending motions. Oral argument will be set by separate order. Plaintiffs' Motion for Leave to Supplement the Record 408 is granted; the Court will consider the documents at ﬁling 408 when ruling on the motion for class certiﬁcation. The parties are to meet and confer to reach an agreement on what additional documents defendants may submit by noon on November 15, 2019, as their supplement in response to Plaintiffs' supplement. A telephone conference is set for November 15, 2019, at 11:30 a.m. before Magistrate Judge Michael D. Nelson to discuss any outstanding disagreements on supplementation. If no outstanding disagreements exist, the parties shall notify the court that the conference is not necessary. Reporter: Portable Digital Recorder. Time Start: 11:02 a.m.; Time Stop: 11:31 a.m.; Time in Court: 29 Minutes. (SMN) (Entered: 11/07/2019)
414 TEXT ORDER setting oral argument on all pending motions and objections ( 125 , 176 , 223 , 247 , 270 , 280 , 292 , 395 ) for Monday January 13, 2020, at 9:00 AM CST Courtroom 1 (Special Proceedings), Roman L. Hruska Federal Courthouse, 111 South 18th Plz, Omaha, NE before Judge Brian C. Buescher. As requested by the parties, a separate order is forthcoming setting the priority of the motions and the speciﬁc issues the Court anticipates addressing at the hearing. Ordered by Judge Brian C. Buescher. (LAC) (Entered: 11/07/2019)
415 MOTION to Withdraw as Attorney Amy Miller by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 11/13/2019)
416 TEXT ORDER granting 415 Motion to Withdraw as Attorney. Amy Miller is terminated as counsel of record for the plaintiffs and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 11/13/2019)
417 TEXT ORDER - After notiﬁcation by the parties that the conference is no longer necessary, the telephone conference scheduled for November 15, 2019, at 11:30 a.m. is hereby cancelled. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 11/15/2019)
418 INDEX in opposition to MOTION to Certify Class 247 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Ryan S. Post, # 2 Exhibit Frakes Memorandum on Staff Incentives)(Post, Ryan) (Entered: 11/15/2019)
419 Certiﬁcate of Service of Defendants' Responses to Plaintiffs' Second Set of Interrogatories by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/15/2019)
420 MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/18/2019)
421 INDEX in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 420 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Deanna Schmidt,

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# 2 Exhibit Order of Release for Zoe Rena, # 3 Exhibit Parole Certiﬁcate for Zoe Rena)(Post, Ryan) (Entered: 11/18/2019)
422 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 420 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/18/2019)
423 ORDER - This matter is set for oral arguments on all pending motions (Filing 125 ; Filing 176 ; Filing 223 ; Filing 247 ; Filing 270 ; Filing 280 ; Filing 292 ; Filing 395 ; Filing 420 ) on January 13, 2020, at 9:00 AM CST. The purpose of this Order is to set a schedule for oral arguments and to outline additional requested brieﬁng. Finally, due to the extensive nature of the pending motions before the Court, the pretrial conference scheduled for February 28, 2020, and the trial set for March 9, 2020, are cancelled. Ordered by Judge Brian C. Buescher. (LKO) (Entered: 11/26/2019)
424 STRICKEN - NOTICE of Appearance by Attorney Danielle M. Conrad on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser (Conrad, Danielle) Modiﬁed on 12/4/2019 to strike per order 425 (ADB). (Entered: 12/04/2019)
425 TEXT STRIKE ORDER that Pursuant to NEGenR 1.3(a)(4), the Notice of Appearance, 424 is stricken for the following reason: empty PDF document attached. The party is directed to re-ﬁle the document. Ordered by Deputy Clerk. (ADB) (Entered: 12/04/2019)
426 NOTICE of Appearance by Attorney Danielle M. Conrad on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser (Conrad, Danielle) (Entered: 12/04/2019)
427 BRIEF in opposition to MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 420 by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bien-Kahn, Benjamin) (Entered: 12/05/2019)
428 REPLY BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 420 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 12/10/2019)
429 MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Angelic Norris by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Post, Ryan) (Entered: 12/10/2019)
430 INDEX in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Angelic Norris 429 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Deanna Schmidt)(Post, Ryan) (Entered: 12/10/2019)
431 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Angelic Norris 429 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 12/10/2019)

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432 BRIEF in support of MOTION to Certify Class 247 Supplemental Brief by Attorney Jennifer Wedekind on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Wedekind, Jennifer) (Entered: 12/17/2019)
433 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Angelic Norris 429 , MOTION for Summary Judgment 223 , MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 420 , MOTION for Partial Summary Judgment 292 , OBJECTION TO MAGISTRATE JUDGE'S ORDER regarding Order on Motion to Strike 389 395 , OBJECTION to [16035], [160-38], and [160-41] 176 , MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Brandon Sweetser 280 , MOTION for Partial Summary Judgment 125 Supplemental Brief by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 12/17/2019)
434 BRIEF in opposition to MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Angelic Norris 429 by Attorney Benjamin Bien-Kahn on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Bien-Kahn, Benjamin) (Entered: 12/19/2019)
435 REPLY BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Angelic Norris 429 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 12/23/2019)
436 RESPONSE regarding Brief,,, 433 Plaintiffs' Response to Defendants' Supplemental Brief in support of Defendants' Pending Motions by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 01/08/2020)
437 BRIEF in opposition to MOTION to Certify Class 247 Supplemental Brief by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 01/08/2020)
438 TEXT MINUTE ENTRY for proceedings held before Judge Brian C. Buescher. Oral arguments on Motions and Objections 125 , 176 , 223 , 247 , 270 , 280 , 292 , 395 , 420 and 429 held on 01/13/2020 in Omaha, Nebraska. Case is under advisement. Order forthcoming. Appearance for Plaintiffs: Jennifer Wedekind, David Fathi, Kara Janssen, Dawn Jenkins, Robert McEwan and Danielle Conrad; Appearance for Defendants: Ryan Post, Katherine OBrien, Ben Goins, Danielle Rowley, Phoebe Gydesen and Scott Straus; Courtroom Deputy: Laura Coyle; Court Reporter: Rogene Schroder; Time Start: 9:04 a.m.; Time Stop: 2:30 p.m.; Time in Courts: 3 hours 58 minutes. (LAC) (Entered: 01/13/2020)
439 TRANSCRIPT (UNREDACTED) of Proceedings before District Judge Brian C. Buescher held on January 13, 2020. Total Number of Billable Pages: 168. Total Number of Pages: 168. In accordance with the transcript redaction procedure, available at

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the transcript can only be viewed at the court's public terminal or purchased through Court Reporter Rogene S. Schroder at (402) 661-7383 or roschrod79@yahoo.com before the expiration of the Release of Transcript Restriction deadline. The parties have 7

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calendar 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. Redaction Request due 2/11/2020. Redacted Transcript Deadline set for 2/21/2020. Release of Transcript Restriction set for 4/20/2020. (RSS) Modiﬁed on 4/30/2020 to release transcript restrict (LKO). (Entered: 01/21/2020)

03/15/2020

440 MOTION for Leave to supplement record regarding Named Plaintiff Zoe Rena and for limited additional brieﬁng by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 03/15/2020)

03/16/2020

441 TEXT ORDER granting 440 Motion for Leave to Supplement Record Regarding Named Plaintiff Zoe Rena and for Limited Additional Brieﬁng. Each side is limited to ﬁve (5) pages of additional brieﬁng. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 03/16/2020)

03/20/2020

442 INDEX in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 420 (Supplemental Index) by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Tom Verplank, # 2 Exhibit (Board of Parole revocation packet for Zoe Rena))(Post, Ryan) (Entered: 03/20/2020)

03/20/2020

443 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 420 (Supplemental Brief) by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 03/20/2020)

03/26/2020

444 TEXT ORDER - The deadline for plaintiffs to supplement the record and ﬁle up to ﬁve (5) pages of additional brieﬁng per the court's prior text order 441 is April 3, 2020. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 03/26/2020)

04/03/2020

445 BRIEF in opposition to MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 420 by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 04/03/2020)

04/10/2020 446 NOTICE of Appearance of Counsel by Attorney Adam J. Sipple on behalf of Plaintiff Hannah Sabata (Sipple, Adam) (Entered: 04/10/2020)

04/10/2020

447 MOTION Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 04/10/2020)

04/10/2020

448 BRIEF in support of MOTION Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 447 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 04/10/2020)

04/10/2020

449 INDEX in support of MOTION Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 447 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard

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Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Declaration of Attorney Christopher Young, # 2 Exhibit 1. CDC Guidance, # 3 Exhibit 2. Email Correspondence and Attachments Thereto, # 4 Exhibit 3(b). Declaration of Lizzy Westrope, # 5 Exhibit 4. Declaration of Expert Marc Stern, # 6 Exhibit 5. Email Correspondence)(Young, Christopher) (Entered: 04/10/2020)
450 MOTION to Restrict pursuant to the E-Government Act related to Plaintiffs' Emergency Motion Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 04/10/2020)
451 RESTRICTED DOCUMENT Exhibit 3(a) regarding MOTION to Restrict pursuant to the E-Government Act related to Plaintiffs' Emergency Motion Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 450 ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). - by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 04/10/2020)
452 TEXT ORDER granting 450 Motion to Restrict pursuant to the E-Government Act. Access to Plaintiffs' Exhibit 3(a) at ﬁling 451 shall remain restricted to case participants and court users. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 04/10/2020)
453 TEXT ORDER SETTING HEARING: A Telephone Conference is set for April 14, 2020, at 10:00 AM CDT before Magistrate Judge Michael D. Nelson. The parties shall call in using the conference instructions associated with this case. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 04/13/2020)
454 TEXT MINUTE ENTRY for proceedings held with counsel for the parties by telephone before Magistrate Judge Michael D. Nelson on April 14, 2020. Discussion held regarding Plaintiffs' Emergency Motion Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 447 . Defendants shall ﬁle a response to the motion on or before April 17, 2020. Plaintiffs shall notify the undersigned magistrate judge if they intend to ﬁle a reply. The reply deadline is April 21, 2020. Reporter: Portable Digital Recorder. Time Start: 10:03 a.m.; Time Stop: a.m.; Time in Court: 19 minutes. (SMN) (Entered: 04/14/2020)
455 AUDIO FILE. Court Date & Time [ 4/14/2020 10:03:33 AM ]. File Size [ 4563 KB ]. Run Time [ 00:19:01 ]. (Telephone Conference). (auto-docket). (Entered: 04/14/2020)
456 INDEX in opposition to MOTION Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 447 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Dr. Harbans Deol, # 2 Afﬁdavit of Scott R. Frakes)(Post, Ryan) (Entered: 04/17/2020)
457 BRIEF in opposition to MOTION Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 447 by Attorney Ryan S. Post on

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behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 04/17/2020)
458 MOTION to ﬁle under Seal by Attorney Adam J. Sipple on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser, Movant Marshall Lux.(Sipple, Adam) (Entered: 04/21/2020)
459 RESTRICTED DOCUMENT Index of Evidence by Attorney Adam J. Sipple on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser, Movant Marshall Lux. (Attachments: # 1 Afﬁdavit of Adam J. Sipple, # 2 Exhibit 6- Email attaching letter to AG Peterson 11-13-19) ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a).(Sipple, Adam) Modiﬁed on 4/22/2020 to restrict per MDN chambers (LKO). (Entered: 04/21/2020)
460 REPLY BRIEF in support of MOTION Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of COVID-19 447 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 04/21/2020)
461 TEXT ORDER granting in part and denying in part 458 Motion to Seal. Access to Plaintiffs' Index of Evidence in Support of Reply Brief in Support of Emergency Motion 459 shall be restricted to case participants and court users rather than sealed. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 04/22/2020)
462 MOTION to Withdraw as Attorney of Record (Aaron Goodman) ﬁled by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 04/28/2020)
463 TEXT ORDER granting 462 Motion to Withdraw as Attorney. Aaron Goodman is granted leave to withdraw as counsel for the plaintiffs and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 04/28/2020)
464 MOTION for Admission Pro Hac Vice Filing fee $ 100, receipt number ANEDC4153258 by Attorney Colleen Gulliver on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Gulliver, Colleen) (Entered: 04/28/2020)
465 TEXT ORDER granting Motion for Admission Pro Hac Vice, 464 for attorney Colleen Gulliver. Ordered by Deputy Clerk. (JLS) (Entered: 04/29/2020)
466 ORDER - that Plaintiffs' Emergency Motion Seeking Disclosure of Defendants' Plan for the Prevention, Management, and Treatment of Covid-19 (Filing No. 447 ) is denied. Ordered by Magistrate Judge Michael D. Nelson. (LKO) (Entered: 05/01/2020)
467 TEXT EMAIL MOTION - by counsel for plaintiffs requesting a telephone conference to discuss discovery issues. (JLM) (Entered: 05/12/2020)
468 TEXT ORDER granting 467 Email Motion. A Telephone Conference is set for May 18, 2020, at 11:00 AM before Magistrate Judge Michael D. Nelson. The parties shall call in

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using the case conference instructions associated with this case. The parties shall submit a 1.5 page statement as to the discovery issues by 3:00 p.m., May 15, 2020. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 05/12/2020)
469 OBJECTION TO MAGISTRATE JUDGE'S ORDER regarding Order on Motion for Miscellaneous Relief 466 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 05/15/2020)
470 BRIEF in support of OBJECTION TO MAGISTRATE JUDGE'S ORDER regarding Order on Motion for Miscellaneous Relief 466 469 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 05/15/2020)
471 INDEX in support of OBJECTION TO MAGISTRATE JUDGE'S ORDER regarding Order on Motion for Miscellaneous Relief 466 469 by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser. (Attachments: # 1 Declaration of Christopher M. Young, # 2 Exhibit 7 - Counsel email exchange re NDCS COVID-19 response plans, # 3 Exhibit 7(a) - NDCS COVID-19 Response Memo Apr 8)(Young, Christopher) (Entered: 05/15/2020)
472 Certiﬁcate of Service of Defendants' Responses to Plaintiffs' Tenth Set of Requests for Production (Nos. 210-304) by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/18/2020)
473 TEXT MINUTE ENTRY for telephone conference held with counsel for the parties on May 18, 2020, before Magistrate Judge Michael D. Nelson. Discussion and arguments held regarding outstanding discovery disputes. The defendants shall produce documents that were delayed by COVID-19 on or before August 21, 2020. Parties are given leave to ﬁle discovery motions on June 15, 2020, regarding unresolved discovery disputes raised and discussed prior to today's conference. A status conference is set by telephone before the undersigned magistrate judge on June 15, 2020, at 10:30 a.m. The parties shall use the case conference instructions associated with this case. Reporter: Portable Digital Recorder. Time Start: 11:02 a.m.; Time Stop: 11:38 a.m.; Time in Court: 36 minutes. (SMN) (Entered: 05/18/2020)
474 AUDIO FILE. Court Date & Time [ 5/18/2020 11:02:50 AM ]. File Size [ 8030 KB ]. Run Time [ 00:33:28 ]. (Telephone Status Conference). (auto-docket). (Entered: 05/18/2020)
475 BRIEF in opposition to OBJECTION TO MAGISTRATE JUDGE'S ORDER regarding Order on Motion for Miscellaneous Relief 466 469 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Julie Micek, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 05/29/2020)
476 MEMORANDUM AND ORDER - Defendants' Objection to Afﬁdavits Submitted in Support of Summary Judgment (Filing 176 ) is denied; Defendants' Objection to the Magistrate Judge's Order Regarding Expert Witnesses (Filing 395 ) is denied; Defendants' Motion for Partial Summary Judgment Regarding Exhaustion of Administrative Remedies (Filing 125 ) is denied; Defendants' Motion for Partial Summary Judgment Regarding Life Sentences and Eighth Amendment Claims (Filing 292 ) is granted as to

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James Curtright, Richard Griswold, and Michael Gunther and is denied as to Zoe Rena and Jason Galle's Eighth Amendment claims; Defendants' Motion for Partial Summary Judgment Regarding Defendant Julie Micek (Filing 223 ) is granted and Micek is dismissed as a party to the lawsuit; Plaintiffs' Motion for Class Certiﬁcation (Filing 247 ) is denied; Plaintiffs' Objection to Magistrate Judge's Order regarding COVID-19 Discovery (Filing 469 ) is denied; Plaintiffs' Motion for Reconsideration (Filing 270 ) regarding the mootness order on R.P. is granted; Defendants' Motions to Dismiss and Suggestions of Mootness regarding Brandon Sweetser and Angelic Norris (Filing 280 , Filing 429 ) are granted and Sweetser and Norris are dismissed as parties to the case; and Defendants' Motion to Dismiss and Suggestion of Mootness regarding Zoe Rena (Filing 420 ) is denied. Ordered by Judge Brian C. Buescher. (LKO) (Entered: 06/08/2020)
477 MOTION to Withdraw as Attorney (Andrew Day) by Attorney Christopher M. Young on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Young, Christopher) (Entered: 06/08/2020)
478 TEXT ORDER granting 477 Motion to Withdraw as Attorney. Andrew Day is terminated as counsel for the plaintiffs and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 06/08/2020)
479 TEXT EMAIL MOTION by counsel for defendant requesting a continuance of the status conference scheduled for June 15, 2020. (JLM) (Entered: 06/12/2020)
480 TEXT ORDER granting 479 Email Motion. The status conference set for June 15, 2020, has been continued to June 24, 2020, at 11:00 AM before Magistrate Judge Michael D. Nelson. The parties shall call in using the case conference instructions associated with this case. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 06/12/2020)
481 MOTION to Withdraw as Attorney Amy Fettig by Attorney Lauren Kuhlik on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Kuhlik, Lauren) (Entered: 06/12/2020)
482 TEXT ORDER granting 481 Motion to Withdraw as Attorney. Amy Fettig is granted leave to withdraw as counsel for the plaintiffs and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 06/12/2020)
483 TEXT MINUTE ENTRY for telephonic status conference held with counsel for the parties on June 24, 2020, before Magistrate Judge Michael D. Nelson. Discussion held regarding case progression and discovery. The deadline for defendants to produce documents that were delayed by COVID-19 remains on or before August 21, 2020. The deadline for the parties to ﬁle discovery motions is extended to September 4, 2020, regarding unresolved discovery disputes raised and discussed prior to the conference held on May 18, 2020. A status conference is set by telephone before the undersigned magistrate judge on July 24, 2020, at 11:00 a.m. to discuss case progression. The parties shall use the case conference instructions associated with this case. Parties shall meet and confer and provide proposed progression deadlines to nelson@ned.uscourts.gov prior to the conference. The deadlines suspended in the Amended Progression Order (Filing No. 337) remain suspended pending further order of the court. (JLM) (Entered: 06/25/2020)
484 NOTICE of Appearance by Attorney Diane Amdor on behalf of Plaintiff Hannah Sabata (Amdor, Diane) (Entered: 07/01/2020)
485 TEXT MINUTE ENTRY for telephonic status conference held with counsel for the parties on July 24, 2020. Discussion held regarding case progression and discovery

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matters. Parties shall meet and confer and ﬁle a joint proposed progression order on or before August 7, 2020. To the extent the parties cannot agree on any deadline, they shall clearly identify the disputed deadline and explain why it is disputed. Plaintiffs shall provide Defendants with clariﬁcation on which claims Plaintiffs are proceeding with in advance of meeting and conferring to establish new case progression deadlines. Reporter: Portable Digital Recorder. Time Start: 11:00; Time Stop: 11:28; Time in Court: 28 Minutes. (JLM) (Entered: 07/24/2020)
486 AUDIO FILE. Court Date & Time [ 7/24/2020 10:54:24 AM ]. File Size [ 6781 KB ]. Run Time [ 00:28:15 ]. (Status Conference). (auto-docket). (Entered: 07/24/2020)
487 TEXT ORAL MOTION by counsel for defendant requesting a telephone conference to discuss discovery disputes. (JLM) (Entered: 08/06/2020)
488 TEXT ORDER granting 487 Oral Motion. A Telephone Conference is set for August 17, 2020, at 10:30 AM CDT before Magistrate Judge Michael D. Nelson. The parties shall call in using the case conference instructions associated with this case. The parties shall submit a 1.5 page statement as to the discovery issues by 3:00 p.m., August 14, 2020. Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 08/06/2020)
489 NOTICE of Parties' Proposed Case Progression by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services (Attachments: # 1 Exhibit (August 2, 2020 Letter from Plaintiffs))(Post, Ryan) (Entered: 08/07/2020)
490 MOTION to Strike the Class Allegations and Claims in the Complaint by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/14/2020)
491 INDEX in support of MOTION to Strike the Class Allegations and Claims in the Complaint 490 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Ryan S. Post, # 2 Exhibit (Complaint with Defendants' proposed strikes))(Post, Ryan) (Entered: 08/14/2020)
492 BRIEF in support of MOTION to Strike the Class Allegations and Claims in the Complaint 490 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 08/14/2020)
493 TEXT MINUTE ENTRY for telephone conference held with counsel for the parties on August 17, 2020, before Magistrate Judge Michael D. Nelson. Discussion and arguments held regarding outstanding discovery disputes and further case progression. The Court's rulings and parties' agreements regarding the discovery disputes were stated on the record. Further case progression order to be entered consistent with the discussion held on the record. Reporter: Portable Digital Recorder. Time Start: 10:32 a.m.; Time Stop: 11:30 a.m.; Time in Court: 58 Minutes (SMN) (Entered: 08/17/2020)
494 AMENDED CASE PROGRESSION ORDER - Depositions due February 15, 2021. The trial and pretrial conference will not be set at this time. A planning conference to discuss case progression, dispositive motions, the parties' interest in settlement, and the trial and pretrial conference settings will be held with the undersigned magistrate judge on February 19, 2021, at 11:00 a.m. by telephone. Counsel shall use the conferencing instructions assigned to this case to participate in the conference. Ordered by Magistrate Judge Michael D. Nelson. (KMM) (Entered: 08/17/2020)

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495 AUDIO FILE. Court Date & Time [ 8/17/2020 10:23:23 AM ]. File Size [ 13926 KB ]. Run Time [ 00:58:01 ]. (Telephone Conference). (auto-docket). (Entered: 08/17/2020)
496 BRIEF in opposition to MOTION to Strike the Class Allegations and Claims in the Complaint 490 Plaintiffs' Opposition to Defendants' Motion to Strike Plaintiffs' Class Allegations and Claims in the Complaint by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) (Entered: 08/28/2020)
497 MOTION to Compel Production of Documents by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata.(Smith, Kenneth) (Entered: 09/04/2020)
498 BRIEF in support of Motion to Compel Production of Documents by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata.(Smith, Kenneth) (Entered: 09/04/2020)
499 INDEX in support of Brief, 498 in support of Motion to Compel Production of Documents by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit Smith Declaration)(Smith, Kenneth) (Entered: 09/04/2020)
500 STATEMENT Plaintiffs' Identiﬁcation of Doe Defendants by Attorney Kara J. Janssen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata, Brandon Sweetser.(Janssen, Kara) Modiﬁed on 9/18/2020 to reﬂect as a motion per MDN chambers (LKO). (Entered: 09/04/2020)
501 REPLY BRIEF in support of MOTION to Strike the Class Allegations and Claims in the Complaint 490 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 09/04/2020)
502 BRIEF in opposition to Statement, 500 regarding Doe defendants by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 09/17/2020)
503 MOTION to Extend by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Post, Ryan) (Entered: 09/18/2020)
504 TEXT ORDER granting 503 Motion to Extend. Defendants shall have an extension of time to September 25, 2020, to ﬁle a brief in response to Plaintiffs' Motion to Compel 497

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. Ordered by Magistrate Judge Michael D. Nelson. (SMN) Modiﬁed on 9/18/2020 (SMN). (Entered: 09/18/2020)

09/25/2020

505 MOTION to Extend by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Post, Ryan) (Entered: 09/25/2020)

09/25/2020

506 TEXT ORDER granting 505 Motion to Extend. Defendants shall have an extension of time to September 28, 2020, to ﬁle a brief in response to Plaintiffs' Motion to Compel 497 . Ordered by Magistrate Judge Michael D. Nelson. (JLM) (Entered: 09/25/2020)

09/28/2020

507 INDEX in opposition to MOTION to Compel Production of Documents 497 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Ryan S. Post, # 2 Exhibit (Email on discovery supplement), # 3 Exhibit (Email on meet and confer), # 4 Exhibit (Responses to Third Set of Requests), # 5 Exhibit (Responses to Fourth Set of Requests), # 6 Exhibit (Responses to Fifth Set of Requests), # 7 Exhibit (Responses to Sixth Set of Requests), # 8 Exhibit (Responses to Eighth Set of Requests), # 9 Exhibit (Responses to Ninth Set of Requests), # 10 Exhibit (Defendants' August 14, 2020 discovery position statement))(Post, Ryan) (Entered: 09/28/2020)

09/28/2020

508 BRIEF in opposition to MOTION to Compel Production of Documents 497 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 09/28/2020)

10/01/2020

509 UNOPPOSED MOTION to Extend by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata.(Smith, Kenneth) (Entered: 10/01/2020)

10/01/2020

510 TEXT ORDER granting 509 Unopposed Motion to Extend. Plaintiffs shall have an extension of time to October 13, 2020, to ﬁle a brief in reply to their Motion to Compel 497 . Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 10/01/2020)

10/06/2020

511 MEMORANDUM AND ORDER - Defendants' Motion to Strike, Filing 490 , is denied. Plaintiffs' Identiﬁcation of Doe Defendants, Filing 500 , is denied. The Doe defendants 120 are dismissed from this action. Ordered by Judge Brian C. Buescher. (LKO) (Entered: 10/06/2020)

10/13/2020

512 REPLY BRIEF in support of Motion to Compel Production of Documents by Attorney Kenneth M. Smith on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, R. P., Isaac Reeves, Zoe Rena, Hannah Sabata. (Smith, Kenneth) (Entered: 10/13/2020)

11/20/2020

513 MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/20/2020)

11/20/2020

514 INDEX in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 513 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services. (Attachments: # 1 Afﬁdavit of Deanna Schmidt,

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# 2 Exhibit (Order of Release for Zoe Rena), # 3 Exhibit (Parole Certiﬁcate for Zoe Rena))(Post, Ryan) (Entered: 11/20/2020)
515 BRIEF in support of MOTION to Dismiss and Suggestion of Mootness of Claims of Named Plaintiff Zoe Rena 513 by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/20/2020)
516 MOTION to Withdraw as Attorney Danielle L. Rowley by Attorney Ryan S. Post on behalf of Defendants Harbans Deol, Scott Frakes, Nebraska Board of Parole, Nebraska Department of Correctional Services.(Post, Ryan) (Entered: 11/20/2020)
517 TEXT ORDER granting 516 Motion to Withdraw as Attorney. Danielle L. Rowley is granted leave to withdraw as counsel for the defendants and shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Michael D. Nelson. (SMN) (Entered: 11/23/2020)
518 MOTION to Withdraw as Attorney On Behalf of Zoe Rena by Attorney Adam J. Sipple on behalf of Plaintiff Zoe Rena. (Attachments: # 1 Afﬁdavit In Support of Motion to Withdraw)(Sipple, Adam) (Entered: 11/30/2020)
519 JOINT STIPULATION FOR DISMISSAL by Attorney Robert E. McEwen on behalf of Plaintiffs Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, Michael Gunther, Angelic Norris, R. P., Isaac Reeves, Hannah Sabata, Brandon Sweetser. (McEwen, Robert) (Entered: 11/30/2020)
520 MEMORANDUM AND ORDER - Defendants' Motion to Dismiss and Suggestion of Mootness as to Zoe Rena, Filing 513 is granted. Zoe Rena is dismissed as a party to this case. The Motion to Withdraw, Filing 518 , is denied as moot. Ordered by Judge Brian C. Buescher. (LKO) (Entered: 12/01/2020)
521 JUDGMENT - This matter is before the Court on the parties' Joint Stipulation for Dismissal (Filing 519 ). Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), this case is dismissed without prejudice, each party to bear its own fees and costs. Additionally, the Motion to Compel Production of Documents, Filing 497 , which was pending at the time of the ﬁling of the stipulation is denied as moot. Ordered by Judge Brian C. Buescher. (LKO) (Entered: 12/01/2020)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HANNAH SABATA; DYLAN CARDEILHAC; JAMES CURTRIGHT; JASON GALLE; RICHARD GRISWOLD; MICHAEL GUNTHER; ANGELIC NORRIS; R.P., a minor; ISAAC REEVES; ZOE RENA; and BRANDON SWEETSER, on behalf of themselves and all others similarly situated,
PLAINTIFFS,
V.

Civil Action No. _______________
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES; SCOTT R. FRAKES, in his Official Capacity as Director of the Nebraska Department of Correctional Services; HARBANS DEOL, in his Official Capacity as Director of Health Services of the Nebraska Department of Correctional Services; NEBRASKA BOARD OF PAROLE; JULIE MICEK, in her Official Capacity as the Board of Parole Acting Parole Administrator; and DOES 1 to 20, inclusive,
DEFENDANTS.

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TABLE OF CONTENTS

Page

I. NATURE OF THE CASE ................................................................................................. 1 II. JURISDICTION ................................................................................................................ 3 III. VENUE .............................................................................................................................. 3 IV. PARTIES ........................................................................................................................... 3 V. FACTUAL ALLEGATIONS .......................................................................................... 20
A. Overview of the NDCS System and NDCS Defendants ..................................... 20 1. Chronic Overcrowding at NDCS Facilities ............................................. 23 2. Flawed Parole System.............................................................................. 24 3. Understaffing, Lack of Training, and Lack of Resources........................ 25 4. Dangerous Consequences for Public Safety in Nebraska ........................ 27
B. NDCS Defendants Routinely Overuse and Improperly Use Isolation................. 29 C. NDCS Defendants Provide Constitutionally Inadequate Health Care................. 35 D. NDCS Defendants and BOP Defendants Violate the ADA and
Rehabilitation Act ................................................................................................ 51 VI. CLASS ACTION ALLEGATIONS ................................................................................ 63
A. The NDCS Class .................................................................................................. 63 1. Fed. R. Civ. P.23(a)(1): Impracticability of Joinder ................................ 63 2. Fed. R. Civ. P.23(a)(2): Commonality..................................................... 63 3. Fed. R. Civ. P.23(a)(3): Typicality .......................................................... 64 4. Fed. R. Civ. P.23(a)(4): Adequacy of Representation ............................. 64 5. Fed. R. Civ. P.23(b) ................................................................................. 64
B. The Isolation Subclass ......................................................................................... 65 1. Fed. R. Civ. P.23(a)(1): Impracticability of Joinder ................................ 65 2. Fed. R. Civ. P.23(a)(2): Commonality..................................................... 66 3. Fed. R. Civ. P.23(a)(3): Typicality .......................................................... 66 4. Fed. R. Civ. P.23(a)(4): Adequacy of Representation ............................. 66 5. Fed. R. Civ. P.23(b) ................................................................................. 67
C. The Disability Subclass........................................................................................ 67 1. Fed. R. Civ. P.23(a)(1): Impracticability of Joinder ................................ 67 2. Fed. R. Civ. P.23(a)(2): Commonality..................................................... 68

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TABLE OF CONTENTS (continued)

Page

3. Fed. R. Civ. P.23(a)(3): Typicality .......................................................... 69 4. Fed. R. Civ. P.23(a)(4): Adequacy of Representation ............................. 69 5. Fed. R. Civ. P.23(b) ................................................................................. 69 VII. CLAIMS FOR RELIEF ................................................................................................... 70 VIII. PRAYER FOR RELIEF .................................................................................................. 81

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I. NATURE OF THE CASE 1. Nebraska state prisons are in a state of chaos that endangers the health, safety, and lives of prisoners and staff alike on a daily basis. For over twenty years, Nebraska state prisons have been overcrowded, under-resourced, and understaffed. The result is a dangerous system in perpetual crisis. Prisoners are consistently deprived of adequate health care, including medical, dental, and mental health care, and denied accommodations for their disabilities. Nebraska state prisoners, including juveniles, suffer in conditions of extreme isolation, sometimes for years. This treatment of Nebraska’s prisoners violates their rights under the Eighth Amendment to the United States Constitution and under federal statutes protecting persons with disabilities. 2. Prisoners have been left to suffer with untreated or undiagnosed medical conditions, many of them serious, due to the lack of timely access to adequate health care. One prisoner suffering from poorly treated diabetes lost 90% of his vision in one eye from the disease. Another prisoner suffered a heart attack and was left to die alone in his cell while other prisoners yelled for help that came far too late. On multiple occasions leading up to his death, this prisoner had complained of chest pain and shortness of breath, but medical staff failed to provide necessary follow-up care or to appreciate the critical nature of his condition. Staff ignore prisoners’ suicide attempts as “attention seeking” and place prisoners with psychiatric disabilities in isolation as a punishment for self-mutilation, where the prisoners’ condition only further deteriorates. According to a December 2016 Department of Justice report, the rate of suicides in Nebraska Department of Correctional Services (“NDCS”) facilities is more than 30% above the national average for state prisons, and more than double the rate of the federal Bureau of Prisons. 3. Prisoners who are blind, deaf, or hard of hearing are denied access to adequate health care and other programs and services due to Defendants’ failure to provide accommodations, including auxiliary aids and services. Prisoners with mobility disabilities are
1

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denied accommodations and support, leaving them to rely on other prisoners for help, which puts them at risk of injury and exploitation and excludes them from programs and services provided in inaccessible locations.
4. These conditions have contributed to frequent violence at Nebraska’s prisons. In the past two years alone, riots have left multiple staff members injured and four prisoners dead. In addition, the overuse of isolation, inadequate mental health care, and the failure to provide rehabilitation and pre-release and reentry planning have led to dangers not only to prisoners and staff, but to public safety. These failures have been cited as a precipitating cause of the recent crimes of Nikko Jenkins, who killed four people within days of his release without parole supervision, after serving two years in isolation.
5. Despite these events, repeated warnings from prison staff, multiple reports by outside consultants, and recommendations from the Nebraska Legislature, Defendants have failed to take effective action to address these long-standing and well-known deficiencies. They have instead acted with deliberate indifference to the unconstitutional and discriminatory conditions and treatment of Nebraska’s prisoners, resulting in unnecessary and avoidable pain, suffering, permanent injuries, and deaths.
6. Plaintiffs, and the class of prisoners they seek to represent, request injunctive and declaratory relief to compel Defendants Nebraska Department of Correctional Services, Scott R. Frakes, and Harbans Deol (collectively, “NDCS Defendants”); and Nebraska Board of Parole and Julie Micek (collectively, “BOP Defendants”) to immediately remedy the overcrowded, discriminatory, and unconstitutional conditions of Nebraska’s prisons. Plaintiffs seek injunctive relief to compel Defendants to provide prisoners with constitutionally adequate health care, including medical, dental, and mental health care, and cease the unlawful and excessive use of
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isolation. Plaintiffs further seek injunctive relief to compel Defendants to provide accommodations, auxiliary aids, and services to, and to cease discriminating against, prisoners with disabilities. Finally, Plaintiffs seek injunctive relief to abate the extreme overcrowding in Nebraska prisons, which is a primary cause of the Constitutional and statutory violations described in this complaint.
II. JURISDICTION 7. This action arises under the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 8. This Court has jurisdiction over Plaintiffs’ claims arising under Title II of the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act (“Rehabilitation Act”) and the regulations promulgated thereunder, pursuant to 28 U.S.C. §§ 1331 and 1343. 9. This Court has jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. This Court also has authority under the ADA (42 U.S.C. § 12205), Section 504 of the Rehabilitation Act (29 U.S.C. § 794a(b)) and 42 U.S.C. § 1988 to award Plaintiffs their reasonable attorneys’ fees, litigation expenses, and costs.
III. VENUE 10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1) because Defendants reside in the District of Nebraska; venue is also proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the District of Nebraska.
IV. PARTIES 11. Plaintiff HANNAH SABATA is a 24-year-old female prisoner incarcerated in the Nebraska Correctional Center for Women (“NCCW”). She was most recently detained on June
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17, 2013. SABATA has schizophrenia and is HIV positive. Throughout her time at NDCS, she has experienced lapses and delays in receiving prescription medications for her HIV disease. This exacerbates her disabilities and places her at increased risk of harm. She has been housed in isolation several times at NCCW, frequently because of her schizophrenia, and her stays in isolation regularly last more than one month. In total, she has spent more than two years in isolation, which has exacerbated her psychiatric disability and increased her risk of suicide.
12. SABATA was twice placed on regimens where she was only served nutraloaf for 9 consecutive meals (3 days). This occurred while she was already in isolation as punishment for failing to return a food tray on one occasion and for throwing a food tray on another.
13. SABATA is a person with a disability as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). SABATA is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1, 110. SABATA intends to request a parole hearing once eligible to do so, but she will require accommodations in order to complete the parole hearing process.
14. Plaintiff DYLAN CARDEILHAC is a 19-year-old male prisoner incarcerated in the Tecumseh State Correctional Institute (“TSCI”). He was incarcerated as a juvenile in the Nebraska Correctional Youth Facility (“NCYF”) from 2014 until June of 2017. CARDEILHAC has been put into isolation and placed in restraints on multiple occasions and has received inadequate and untimely medical care.
15. CARDEILHAC was diagnosed with bipolar disorder when he was 13 years old. As a result, CARDEILHAC experiences shifts in mood, energy, and activity levels ranging from extremely elated (manic episodes) to very sad and hopeless (depressive episodes). Being placed in isolation and in restraints exacerbates these symptoms. NDCS has mismanaged his medication and treatment. In July 2016, CARDEILHAC attempted to overdose on an unknown medication
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after he had been able to hide several days’ worth of doses in his cheek without medical staff members’ knowledge. Only nine months later in March 2017, CARDEILHAC was able to attempt another overdose by swallowing 16 pills.
16. In March of 2017, CARDEILHAC spent 48 hours in five-point restraints without a mattress after attempting suicide. Although staff was supposed to check on him every two hours, they sometimes failed to check on him for three to four hours at a time. On several occasions, CARDEILHAC urinated on himself while restrained, after being told to do so by staff who refused to allow him to go to the bathroom. In May 2017, CARDEILHAC spent another 24 hours in five-point restraints. Prior to these events CARDEILHAC was held in isolation for several consecutive months during 2016. While in isolation, he had the water shut off to his cell for up to 72 hours at a time, had reading material and toilet paper taken away, and had to shower in shackles. During this time he suffered mental deterioration and exacerbation of his psychiatric disability. He has been placed in isolation for infractions as minor as “horseplay” and even for expressing suicidal thoughts. Housing in isolation has exacerbated his psychiatric disability and increased his risk of suicide. Since being transferred to TSCI, CARDEILHAC has been housed in isolation and has been told that he will remain there through at least the end of 2017.
17. During his time in NDCS, CARDEILHAC was served only nutraloaf for 12 consecutive meals (4 days) after he threw a milk carton out of his cell when he was in isolation at NCYF. He has also been denied access to a prescribed splint that the doctor ordered him to wear on his hand for six to eight weeks due to an injury he suffered when he was at NCYF.
18. CARDEILHAC is a person with a disability as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). CARDEILHAC is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1,110. CARDEILHAC intends to request a parole hearing once
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eligible to do so, but he will require accommodations in order to complete the parole hearing process.
19. Plaintiff JAMES CURTRIGHT is a 52-year-old male prisoner incarcerated in the Lincoln Correctional Center (“LCC”); he has been incarcerated in NDCS facilities since July 3, 1986. CURTRIGHT is deaf and a person with a disability as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). He relies on American Sign Language (“ASL”) to communicate and requires an ASL interpreter to allow him to communicate effectively with persons who do not know ASL.
20. CURTRIGHT has never had his communication needs assessed. He has repeatedly requested access to a videophone to allow him to telecommunicate using ASL but has not been provided with one. He was denied access to a Telecommunications Device for the Deaf/Teletype (“TDD/TTY”) for over four years, during which time he was completely unable to make phone calls to his friends and family.
21. CURTRIGHT has serious mental health needs, but he cannot meaningfully participate in mental health counseling due to a lack of ASL interpreters and/or mental health staff fluent in ASL. It takes weeks for LLC to schedule an ASL interpreter for a mental health consultation, so CURTRIGHT’s mental health care is consistently delayed, putting him at risk of serious harm or injury. In the past, he attended mental health treatment sessions in which the only mode of communication was passing written notes, a method which is slow, laborious, and often conveys incomplete information.
22. CURTRIGHT also requires videos to be captioned to allow him to understand the information presented. He currently cannot understand any of the television or video programming provided at NDCS because they do not have captions. Some of these videos
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include educational programs with information about managing finances, employment assistance, and instructions on “how to get out” as well as emergency broadcast information and medical information. CURTRIGHT knows of no policy or practice of notifying him of fire and tornado alarms and as a result, he is at risk of harm or injury in an emergency. Without captioning, CURTRIGHT is afraid he is missing out on critical information. Nor can he fully participate in recreational television programming with other prisoners. In connection with the Prison Rape Elimination Act, NDCS facilities have posters directing prisoners to call a certain telephone number if they are victims of sexual assault while incarcerated. CURTRIGHT is unable to call the number because of his disability, and he is unaware of any alternative practice or policy that would allow him to contact the hotline.
23. While incarcerated in NDCS, CURTRIGHT has been rejected for jobs because of his disability. He tried to become a medical porter and believes that he was not selected because he is deaf.
24. In June 2017, CURTRIGHT requested to be assigned to a specific NDCS caseworker who CURTRIGHT knows is fluent in ASL, so that he could communicate effectively with his caseworker. This request was denied without explanation. The lack of NDCS staff qualified to communicate using ASL and the limited access to interpreters results in effectively isolating CURTRIGHT from those around him and renders him unable to effectively communicate his needs, improperly subjects him to disparate treatment, and places his mental and physical health in jeopardy by interfering with his ability to receive adequate health care, including medical, mental health, and dental care.
25. CURTRIGHT is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1,110. CURTRIGHT intends to request a parole hearing once eligible to do
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so, but he will require accommodations, including an ASL interpreter, in order to fully participate in, understand and complete the parole hearing process.
26. Plaintiff JASON GALLE is a 42-year-old male prisoner incarcerated in the Nebraska State Penitentiary (“NSP”) since February 22, 2010. GALLE has chronic pain and mobility limitations after being shot in the femur during his arrest. Despite repeated requests for treatment to remove the bone fragments and set the fracture, NDCS Defendants have not approved him for surgery. This injury causes him such pain that he was often unable to bend over or to stand for more than 15 minutes at a time. The pain is so severe that he is unable to exercise, and he frequently skips meals in order to avoid walking on his leg. This has caused him to lose an alarming amount of weight.
27. At various points in the past GALLE was given crutches and a cane to assist him with mobility, but in the summer of 2016, they were taken away because NDCS did not think he was using them enough and that he did not need them. Despite his mobility limitations, GALLE has been, and continues to be, housed in a cell without grab bars and without access to a shower with grab bars or a shower chair to allow him to bathe safely. GALLE has been forced to go up and down flights of stairs to get to his cell, to medical, and to other areas. In particular, in order to get to the medical areas, GALLE must go up two flights of stairs, which is painful due to his femur injuries. Recently, in July 2017, GALLE re-broke his femur and now cannot stand unassisted.
28. GALLE has also recently experienced dental pain but has avoided seeking dental care due to a fear that NDCS dentists will extract his tooth, even if it can be saved. He has a broken partial denture that has not been addressed for months.
29. GALLE has been diagnosed with paranoid schizophrenia, and he has been
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hospitalized for a psychotic episode. He has also been diagnosed with depression and anxiety. His psychiatric disabilities were exacerbated when he was placed in five-point restraints for an indeterminate length of time in February 2012. His time in restraints was so traumatic that GALLE now avoids seeking mental health treatment for fear of being restrained again. GALLE was housed in isolation off and on from 2012 to 2014 for attempting to commit suicide, and this isolation only intensified his suicidal thoughts and increased his risk of suicide. Following a suicide attempt in 2014, GALLE was denied medication for his psychiatric disabilities and given no reason for the denial other than a general statement that it was due to his “abuse” of medications. GALLE was on a prescription medication regimen, but when he failed a drug test, NDCS punished him by immediately terminating his medication regimen. This abrupt stoppage in treatment caused GALLE severe physical withdrawal symptoms, and despite not having failed a drug test for 12–18 months, GALLE has not been re-approved to take medication.
30. GALLE is a person with disabilities as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). GALLE is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1, 110. GALLE intends to request a parole hearing once eligible to do so, but he will require accommodations in order to complete the parole hearing process.
31. Plaintiff RICHARD GRISWOLD is a 53-year-old male prisoner incarcerated in TSCI; he has been incarcerated since June 11, 2008. He has multiple disabilities including severe chronic hip problems that limit his mobility, requiring the use of a walker and a wheelchair.
32. GRISWOLD underwent hip replacement surgery while in NDCS custody and has since experienced chronic hip pain. Despite repeated requests for treatment to alleviate the hip pain, GRISWOLD has not been provided any surgical or medical procedure to repair his hip. Instead, NDCS medical staff prescribe a regimen of pain relievers, but these medications are
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ineffective. His hip pain is so extreme that he frequently misses medical appointments because the pain is too severe to move, and no accommodation is made to enable him to access medical care. These missed appointments have led to NDCS staff chastising GRISWOLD and saying that he “must be an active participant in [his] own medical care” if he wants to feel better. GRISWOLD cannot access the gym or his classes at TSCI because they are located in areas without wheelchair ramps. In order to attend these classes, he needs a prisoner porter to lift him. If a porter is not available, GRISWOLD cannot attend his programming.
33. In February 2012, GRISWOLD began displaying symptoms consistent with amyotrophic lateral sclerosis (ALS, also known as Lou Gehrig’s Disease), including tremors and difficulty swallowing, but he was not seen by a neurologist until August 2015. Though ALS was eventually ruled out, GRISWOLD still has no formal diagnosis for his condition despite its persistence. Instead, he has been overmedicated with a drug called Amitriptyline. In May 2014, a blood test showed that the level of Amitriptyline in GRISWOLD’s blood greatly exceeded the reference range and that he needed to be evaluated immediately for signs of toxicity. The excessive amounts of pain medication and Amitriptyline being prescribed to GRISWOLD in lieu of appropriate treatment has caused him to experience kidney and liver disease. He has been told by NDCS medical staff that he is suffering from kidney failure.
34. GRISWOLD is legally blind in one eye. The Nebraska Commission for the Blind has sent GRISWOLD assistive devices such as magnifying glasses with lights, a talking alarm clock, and a talking watch, but NDCS Defendants withheld these items for months. Due to his blindness, GRISWOLD cannot complete grievance forms on his own, and NDCS Defendants have failed to provide accessible grievance forms or to assist him in filling out the forms.
35. GRISWOLD has been diagnosed with bipolar disorder and post-traumatic stress
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disorder. From January 2012 to June 2015, GRISWOLD was housed in isolation, and his monthly mental status examinations amounted to little more than 13 “yes” or “no” questions despite the fact that GRISWOLD continually requested treatment for his psychiatric disabilities and suicidal thoughts. Though isolation served to exacerbate his psychiatric disabilities, he was kept in isolation continuously for three and a half years.
36. GRISWOLD is a person with disabilities as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). GRISWOLD is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1, 110. GRISWOLD intends to request a parole hearing once eligible to do so, but he will require accommodations in order to complete the parole hearing process.
37. Plaintiff MICHAEL GUNTHER is a 62-year-old male prisoner incarcerated in NSP; he has been incarcerated since April 15, 2005. GUNTHER has become blind since being incarcerated: the mismanagement of his diabetes caused him to lose 90% of his vision in one eye, and a physical injury which resulted in the loss of all vision in his remaining eye. His prescription medications to treat diabetes have not been effective and he has been unable to have them properly adjusted, exacerbating his symptoms and increasing the risk that he will suffer serious harm. As a result of Defendants’ failure to properly treat his diabetes, GUNTHER has several diabetic ulcers on his lower extremities, causing him pain and increasing the likelihood that he will require amputation. His diabetes has also caused neuropathy in his hands, legs and feet, which makes using a walking/probing cane increasingly difficult. Additionally, the neuropathy makes using a traditional blood sugar meter more difficult to use , and when batteries ran out on the meter GUNTHER was able to use, NDCS Defendants refused to replace the batteries.
38. Rather than provide adequate care and accommodations, NDCS Defendants have
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accused GUNTHER of being intentionally difficult while serving his sentence.. 39. Because GUNTHER lost his sight while incarcerated, his ability to negotiate his
environment is especially limited. GUNTHER was first provided a white tapping cane and a brief training by the Commission for the Blind while incarcerated, but NDCS Defendants have not trained him to use the cane effectively, nor has he been given any other accommodations or training for his blindness. GUNTHER has taught himself to navigate by counting his steps to various “landmarks” such as trash cans, but this is made difficult because NDCS staff regularly move objects around in his vicinity in order to confuse him. NDCS staff have also tripped him and put objects in his path.
40. NDCS staff do not adequately clear the area of snow during the winter, and GUNTHER is unable to use his landmarks; because of this obstacle, he has gone days without eating during snowstorms because he has to walk outside to get to the dining area. The yard at NSP is very hilly and lacks accessible paths of travel. As a result, GUNTHER has experienced several falls during his time in NDCS custody. In February 2016, GUNTHER slipped on ice and needed medical attention for injuries to his face and legs. It is difficult and sometimes dangerous for him to access portions of the yard, including the church, the main commissary, the library and the barber shop. Because he lost his vision while incarcerated, GUNTHER has never had the opportunity to learn Braille and has no way to read written documents, and he has had to rely on other prisoners to help him make requests and access information. GUNTHER has been provided talking clocks, books on tape and Braille blocks by the Commission for the Blind, but these accommodations have been periodically confiscated by NDCS Defendants.
41. GUNTHER also suffers from inadequate dental care and as a result he is limited in what he can eat and suffers continuous pain and discomfort. He has been on a “waiting list”
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for more than a year and a half to have his broken dentures repaired or replaced. GUNTHER relies on the assistance of other prisoners to assist him with various tasks, such as filling out forms and preparing food, putting him at risk of exploitation.
42. GUNTHER is a person with disabilities as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). GUNTHER is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1, 110. GUNTHER intends to request a parole hearing once eligible to do so, but he will require accommodations in order to complete the parole hearing process.
43. Plaintiff ANGELIC NORRIS is a 42-year-old female prisoner incarcerated in NCCW; she was most recently detained on January 6, 2014. NORRIS is legally blind, and she is also diagnosed with a developmental disability and bipolar disorder. She suffers from hypertension for which she is not receiving adequate treatment, putting her at increased risk of further harm.
44. NORRIS has been housed in isolation intermittently for her entire time at NCCW. She has frequently been housed in isolation because of her intellectual and psychiatric disabilities and as punishment for behaviors related to her blindness. NDCS Defendants alleged that NORRIS was using her walking cane to assault officers and placed her in isolation for an indeterminate length of time. She has also routinely been placed in isolation for threatening selfharm.
45. NORRIS cannot fill out her own grievance forms due to her blindness and NDCS staff fail to assist her, despite the fact that her counsel sent a letter requesting that NDCS staff assist her with filing grievances. She has been provided with talking clocks, Braille blocks, and walking canes by the Commission for the Blind, but these accommodations have been routinely confiscated by NDCS staff. Because NDCS staff have prevented NORRIS from having access to
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reading and writing materials she can use, she is unable to participate in group therapy and group classes because they rely on written materials. Defendants refuse to provide these documents in an alternate form for her use. In October 2014, NORRIS requested a transcription machine (an audio recording or text to Braille converter) so that she could take notes and more actively participate in NDCS programming. NDCS staff told NORRIS they would “investigate” but they never provided her with the equipment and gave no rationale for denying her request. NDCS staff also routinely claim that NORRIS is exaggerating her disabilities for attention and fail to provide her accommodations.
46. NORRIS is a person with disabilities as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). NORRIS is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1, 110. NORRIS intends to request a parole hearing once eligible to do so, but she will require accommodations in order to complete the parole hearing process.
47. Plaintiff R.P. is a 17-year-old juvenile male prisoner incarcerated in the NCYF and was most recently detained on January 15, 2016. He suffered an injury during his arrest, and he suffers from severe paranoia. R.P. experiences auditory hallucinations, and on occasion he has refused to drink water while incarcerated because he believes it is poisoned. R.P. has experienced panic attacks and anxiety attacks since 2014.
48. He has routinely been housed in isolation at NCYF, where he is kept in his cell for 23 hours a day without TV or radio access. While in isolation, R.P. is only allowed to exercise outside 30 minutes a day, and this exercise is confined to a small pen. Despite only having been in custody approximately 18 months, he has been placed in restraints so frequently that he has scarring on his wrists and ankles. R.P. has been pepper sprayed by officers for failure to come to his cell door; his failure to come to the door was a product of his psychiatric
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disabilities, and he was so frightened by the officers’ entry into the room in riot gear with pepper spray that he voided his bladder and bowels.
49. R.P. is a person with a disability as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). R.P. is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. §83-1, 110. R.P. intends to request a parole hearing, but he will require accommodations in order to complete the parole hearing process.
50. Plaintiff ISAAC REEVES is a 19-year-old male prisoner incarcerated in NSP since June 2017. He was incarcerated as a juvenile in NCYF from November of 2013 until June of 2017. REEVES has been diagnosed with depression, and he suffers from panic and anxiety attacks. He has been noted to be “probable” for PTSD, and overt psychotic symptoms and manic behaviors have been witnessed by NDCS medical staff. REEVES has told NDCS staff that he struggles to sleep because he hears voices in his head.
51. While a juvenile at NCYF, REEVES spent significant time in isolation and was confined to his room for 23 hours a day without television or radio. During one period in isolation, he was placed on a diet of only nutraloaf for 30 consecutive meals (10 days) as punishment for throwing a food tray. The nutraloaf was so disgusting that REEVES often elected not to eat. REEVES was pepper sprayed by NDCS custodial staff while in NCYF. REEVES has also spent significant amounts of time in five-point restraints, including for several days in May 2016 following a suicide attempt. REEVES tried to kill himself at least three times in isolation, including an attempted hanging, an attempted stabbing with a weapon made from the metal light switch, and an episode in which he bit his own left wrist down to the bone. Despite these attempts, REEVES was repeatedly placed in isolation for expressing suicidal thoughts. During his time in isolation, REEVES suffered dramatic weight loss (approximately 30 pounds). In total,
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REEVES spent more than a year in isolation at NCYF. 52. After being transferred out of NCYF, REEVES was brought to the Diagnostic and
Evaluation Center (“DEC”) and placed in five-point restraints for five to six days. REEVES was forced to soil himself while restrained, and the staff mocked him, telling them they would put him in diapers. On another occasion at NSP, REEVES was placed in five-point restraints for four to five days, and staff again mocked and punished him for soiling himself.
53. REEVES has experienced severe long-term harm from his time in isolation at NCYF. His eyes are so sensitive to sunlight that it is often hard for him to see. REEVES paid to have his glasses tinted, but the protection was inadequate and he has not been provided other accommodations by NDCS. REEVES suffers daily from anxiety attacks and night terrors from his time in isolation and in five-point restraints. REEVES is fearful of accepting mental health care and medications because he fears he would be required to go back to the DEC, where he was in five-point restraints after a suicide attempt.
54. REEVES has experienced dental pain, and NDCS medical staff was incapable of performing a full examination because he was in isolation. The dentist did not see him until over six months later,.
55. REEVES is a person with a disability as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). REEVES is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1, 110. REEVES intends to request a parole hearing once eligible to do so, but he will require accommodations in order to complete the parole hearing process.
56. Plaintiff ZOE RENA is a 30-year-old female prisoner incarcerated in NCCW since July 24, 2015. She is committed under the name Cassie Zoubek, but her legal and preferred name is Zoe Rena. RENA has been housed in isolation while in NDCS custody, including as
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punishment for protesting NDCS staff failure to appropriately clean her cell after her cellmate contracted Methicillin-resistant Staphylococcus aureus (MRSA), a potentially fatal bacterial infection.
57. RENA has repeatedly requested treatment for tooth, mouth, and jaw pain, but NDCS staff withheld or delayed treatment, causing her pain and discomfort. On both June 24, 2016 and July 13, 2016, NDCS medical staff noted she had abscesses in her mouth following an earlier procedure, but they did nothing to treat them. RENA did not have any dental care until August 23, 2016, two full months after the abscesses were first noted, and did not receive appropriate treatment for her condition. RENA has also had a tooth pulled even though it was only chipped and could have been saved; on another occasion, she went to the dentist for what she thought was a root canal, only to have more teeth pulled. She has had three teeth pulled in the approximately two years she has been in NDCS custody. RENA is afraid to go back to the dentist because she thinks the dentist will just pull more of her teeth.
58. RENA experienced a menstrual cycle that lasted for three consecutive months; she was given an ultrasound of her ovaries and uterus, but was never told the results and was never informed of a treatment plan. RENA has experienced a chronic skin rash that causes significant discomfort. The rash did not occur before she was incarcerated, and NDCS staff have been unable to diagnose and properly treat this condition. NDCS staff told her that they do not employ a dermatologist; nor will they send her to a dermatologist for treatment. RENA is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1, 110. RENA intends to request a parole hearing once eligible to do so.
59. Plaintiff BRANDON SWEETSER is a 45-year-old male prisoner incarcerated in NSP and was most recently detained on June 25, 2015. SWEETSER has Hepatitis C but was
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deemed ineligible for treatment in NDCS facilities because his illness is not sufficiently advanced. Without treatment, his Hepatitis C continues to worsen and causes him unnecessary pain and suffering.
60. SWEETSER underwent surgery for a perforated bowel in January 2016. Since then, he has been in chronic pain and he struggles to walk and move his limbs due to the pain. In the medical unit post-operation, doctors told SWEETSER to walk around each hour to prevent blood clots and support recovery. Due to understaffing, no one assisted with walking and instead he spent eight to ten hours a day shackled to a bed. Because of his inability to walk as the doctors had instructed him, SWEETSER’s legs and ankles became swollen, which made all movement difficult and painful. SWEETSER was supposed to see a specialist outside NDCS six to eight weeks after his procedure to check his progress, but he did not see a specialist for a full year. For the first eleven months following surgery, the pain was so intense that he only left his cell for food, and would regularly skip meals because he was in too much pain to move. SWEETSER has difficulty showering and dressing, and he is often bedridden 20 hours a day from the pain. SWEETSER experiences severe pain whenever he must go up or down a flight of stairs, and almost everywhere in the prison that SWEETSER needs to access requires use of stairs. NDCS medical staff have not determined what is wrong with SWEETSER, and his condition has persisted. His only remedy has been prescription pain medication, but he has not received any further medical or surgical procedure to address the root cause of the pain. Recently, SWEETSER has experienced back pain and a golf ball-sized lump on his left shoulder, but medical staff informed SWEETSER that they would not “waste taxpayer money” on anything that was not life-threatening.
61. SWEETSER has also been diagnosed with paranoid schizophrenia and sometimes
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experiences visual and auditory hallucinations. SWEETSER has not received consistent mental health care while in NDCS custody, and his paranoid schizophrenia has worsened as a result. SWEETSER was previously prescribed an injection medication, but it had such serious side effects that he stopped treatment and has not been prescribed an alternative. He has repeatedly requested treatment for addiction, but his requests have been denied because he is not close enough to parole eligibility. SWEETSER is a person with a disability as defined in 42 U.S.C. § 12102 and 29 U.S.C. § 705(9)(B). SWEETSER is serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1, 110. SWEETSER intends to request a parole hearing once eligible to do so, but he will require accommodations in order to complete the parole hearing process.
62. Defendant Nebraska DEPARTMENT OF CORRECTIONAL SERVICES (“NDCS”) is a public entity duly organized and existing under the laws of the State of Nebraska. NDCS employs 50 or more persons and is ultimately responsible for, and retains ultimate authority over, the operation of Nebraska state prisons, including the housing and treatment of Plaintiffs and the class they seek to represent. NDCS receives state and federal funds for the operation of the state prisons and has received such funds at all times relevant to this complaint.
63. Defendant SCOTT R. FRAKES is the Director of NDCS, and he is sued herein in his official capacity. At all times relevant hereto, he has acted under color of state law.
64. Defendant HARBANS DEOL is the Medical Director of NDCS, and he is sued herein in his official capacity. At all times relevant hereto, he has acted under color of state law.
65. Defendant NEBRASKA BOARD OF PAROLE (“BOP”) is a public entity duly organized and existing under the laws under the state of Nebraska. The BOP employs 50 or more persons and is ultimately responsible for, and retains ultimate authority over, the operation of
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parole eligibility notifications, hearings, and ongoing review of parole eligibility for Plaintiffs and the class they seek to represent. The BOP receives state and federal funds and has received such funds at all times relevant to this complaint.
66. Defendant JULIE MICEK is the Board of Parole’s Acting Parole Administrator, Director of Supervision and Services and is the liaison between Parole Administration and the Board of Parole. She is sued herein in her official capacity. At all times relevant hereto, she has acted under color of state law.
67. Plaintiffs are ignorant of the true names and capacities of Defendants sued in this complaint as DOES 1 through 20, inclusive, and therefore sue these Defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe, and thereon allege, that each of the fictitiously named Defendants is personally responsible in some manner for the occurrences alleged in this complaint.
68. At all times mentioned in this complaint, each Defendant was the agent of the others and was acting within the course and scope of this agency, and all acts alleged to have been committed by any one of them was committed on behalf of every other Defendant.
V. FACTUAL ALLEGATIONS A. Overview of the NDCS System and NDCS Defendants
69. NDCS Defendants (Defendants NDCS, FRAKES, and DEOL) are responsible for operation of all NDCS facilities, which currently house approximately 5,228 prisoners. The mission of NDCS is to “keep people safe.” The NDCS system comprises ten facilities: Community Corrections Centers in Lincoln and Omaha (“CCC-L” and “CCC-O”), DEC, LCC, NCCF, NCYF, NSP, Omaha Correctional Center (“OCC”), TSCI, and Work Ethic Camp (“WEC”).
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70. CCC-L and CCC-O are community residential programs that offer work release, educational release, furloughs, community activity passes, ABE/GED and substance abuse programming, among others, and house men and women classified at Community A or B custody levels. WEC is a minimum security facility for males that is integrated with the Administrative Office of the Courts, Probation and the Board of Parole. DEC processes all adult males sentenced to the NDCS and also houses those sentenced by the court for assessment, interstate transfers, and returned parolees and escapees. LCC and OCC house medium and minimum security male prisoners. TSCI houses medium, maximum, and death-sentenced male prisoners. NSP is the state’s oldest facility and houses male prisoners of all security levels. NCYF houses all male juveniles from early adolescence to age 21 years 10 months. NCCW houses minimum, medium, and maximum security female prisoners.
71. As Director of NDCS, Defendant FRAKES is responsible for overseeing the incarceration and supervision of prisoners in NDCS. Nebraska law provides that Defendant FRAKES is also responsible for the “housing, treatment, [and] medical and mental health services” of all persons in the custody of NDCS. Further, he is responsible for guaranteeing that “the department shall provide a community standard of health care to all [prisoners],” which means “medical care of the type, quality, and amount that any individual residing within the community in question would expect to receive in that community.” For all purposes herein, healthcare “means all medical care provided by or on behalf of the department [of correctional services] and includes the practice of medicine and surgery, . . . pharmacy, nursing care, dental care, optometric care, . . . [and] mental health care.” Further, Defendant FRAKES is responsible for selecting and supervising a Medical Director to oversee the healthcare of prisoners at NDCS. It is Defendant FRAKES’ responsibility to ensure that all prisoners are treated in a reasonable
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and humane manner and to ensure all conditions of confinement are lawful and constitutional. 72. Defendant FRAKES knows that NDCS is dangerously overcrowded, severely
understaffed, and that its policies, practices and procedures result in an ongoing substantial risk of serious and avoidable pain, suffering, injury and death to NDCS prisoners.
73. Defendant DEOL is Medical Director for NDCS. As Medical Director, Defendant DEOL is responsible for the coordination of all clinical services, the selection and supervision of all clinical staff employed by or under contract with NDCS, the training of clinical staff, training and procedures to address medical emergencies, the development and implementation of disease and condition-specific treatment protocols, and developing and implementing a system of timely access to health care for prisoners. He is responsible for developing and implementing protocols consistent with the community standard of care addressing (a) treatment of gastrointestinal bleeds; (b) detection and treatment of all communicable diseases; (c) treatment of genderspecific problems; (d) treatment of diabetes; (e) treatment of hypertension; (f) treatment of headaches; (g) utilization of surgical procedures; (h) control of infection; (i) provision of dental care; and (j) provision of age-specific and gender-specific routine health maintenance.
74. Nebraska law also states that Defendant DEOL is responsible for ensuring “that each facility has at least one designated medical doctor on call at all times and that each facility housing more than five hundred [prisoners] has at least one full-time medical doctor assigned to that facility…”. Additionally, Defendant DEOL must “establish an acute care clinic in each of the correctional facilities and ensure that each clinic is staffed by at least one medical doctor, physician assistant, or advanced practice registered nurse . . . .”. Defendant DEOL must also make sure that “[a]ll medical treatment protocols developed, approved, and implemented by the department shall be based upon a community standard of health.” Further, Defendant DEOL, as
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medical director, “shall develop and implement medical treatment protocols regarding the use of drugs, devices, or biologicals for the treatment of [prisoners] and shall ensure that those protocols are consistent with a community standard of health care.”
75. Defendant DEOL knows that NDCS is severely overcrowded, dangerously understaffed, and that its policies, practices and procedures result in an ongoing substantial risk of serious and avoidable pain, suffering, injury and death to NDCS prisoners.
1. Chronic Overcrowding at NDCS Facilities 76. NDCS facilities are chronically and severely overcrowded. 77. According to NDCS’ Quarterly Datasheet for January – March 2017, NDCS facilities house approximately 5,228 prisoners, despite their combined institutional capacity of only 3,275 prisoners. On average, across all ten NDCS facilities, Nebraska prisons are operating at 159% capacity, while some facilities are at nearly 200% capacity, and the DEC is at over 300% capacity. 78. NDCS facilities have been overcrowded for over twenty years, and during that time the problem has worsened. 79. In 1997, a Strategic Capital Facilities Master Plan commissioned by NDCS (“1997 NDCS Master Plan”) found that, as of January 14, 1997, the NDCS system was operating at 142% of design capacity. 80. In 2006, NDCS commissioned a Strategic Capital Facilities Master Plan (“2006 NDCS Master Plan”) to update the 1997 NDCS Master Plan. The 2006 NDCS Master Plan found dangerous levels of overcrowding and recommended the addition of more bed space, particularly drug treatment, minimum security, and community custody beds. 81. In 2014, NDCS again commissioned a Strategic Capital Facilities Master Plan (“2014 NDCS Master Plan”) to update the 2006 NDCS Master Plan. Overcrowding was still
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found to be at critical levels, and in the eight years between the reports, bed count went down by more than 400 while prisoner population increased by over 600, creating even more strain on the system. According to the 2014 Master Plan, in October 2013, NDCS was at 150.61% capacity. This critical overcrowding has long been known to NDCS Defendants and was recognized as “an urgent need for resolution, either by reducing the population or increasing the number of beds.”
82. As a result of overcrowding, two or more prisoners are frequently housed in cells designed for one—and many prisoners are even double-celled in tiny isolation cells. Prisoners are also crammed into common areas that have been made into makeshift sleeping quarters, with temporary plastic floor cots (known as “boats”) serving as beds.
83. Despite NDCS Defendants’ knowledge of the persistent and severe overcrowding at NDCS facilities for over twenty years, they have not acted to alleviate it.
84. A 2015 report prepared by the Council of State Governments Justice Center projected that Nebraska’s prisons would reach 170% capacity by 2020 despite a decline in crime and arrests. Nebraska’s incarcerated population increased 19 percent between 2004 and 2013, the seventh largest percentage increase of any State in the country, while nationally the incarceration rate declined by 2% for that same time period. The 2015 Justice Center report attributed the increases in population in part to (1) the fact that prisoners with short sentences are consuming scarce space and prison resources, instead of being sentenced to probation, while receiving little or no treatment or post-release supervision, and (2) the need to reform the sentencing and parole systems.
2. Flawed Parole System 85. The Board of Parole’s (“BOP”) policies and practices exacerbate the overcrowding problem at NDCS facilities. BOP’s responsibilities include, but are not limited to, (a) determining the time of release on parole of committed prisoners eligible for release,
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including recommending whether a prisoner should be authorized for furlough or work release privileges; (b) notifying prisoners of their eligibility for parole; (c) holding parole hearings and setting conditions for parole; and (d) performing a review of prisoner records on a regular basis to determine whether parole is warranted. Despite the NDCS’ professed focus on rehabilitation, many prisoners are not given the opportunity to seek parole, and instead serve their maximum sentences or “jam out.” In some facilities, prisoners are required to complete certain programming before they are considered parole-eligible—programming which is not available to them due to overcrowding and lack of resources. And across NDCS facilities, prisoners with disabilities are discriminated against in the parole system, unable to access and navigate proceedings that are inaccessible to them and required to complete programs that are not available to them. As a result of these policies and practices, fewer prisoners are paroled, inflating the overall prison population and harming public safety. Large numbers of NDCS prisoners “jam out” and are released to the community without any parole supervision.
3. Understaffing, Lack of Training, and Lack of Resources 86. NDCS facilities are drastically and dangerously understaffed. For those staff that NDCS does employ, training is minimal, overtime is abused, and turnover is high. 87. A December 2016 Committee Report to the Nebraska Legislature found that NDCS was experiencing severe understaffing of both custodial and clinical staff. Vacancies in allocated positions were very high and turnover was also high. According to the report, as of July 2016, there were almost 200 protective service staff vacancies across NDCS and 34 vacancies in mental health, including a critically low number of psychologists (only 11 out of 23 positions filled). The turnover rate across all NDCS positions is almost 24%, and the turnover rate in protective service staff positions is almost 31%. Defendant FRAKES has himself stated that a turnover rate exceeding 15% creates instability and management issues. Even the Office of
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Inspector General of the Nebraska Correctional System has recognized that “NDCS is in a staffing crisis.” Turnover in NDCS has skyrocketed; in 2015, 565 positions experienced turnover and in 2016, 613 positions experienced turnover. In addition, the NDCS Behavioral Health Administrator has testified that NDCS needs more psychologists than the current full allocation, especially to address the treatment needs of prisoners held in isolation.
88. Typically, correctional officers work 12-hour shifts. Mandatory overtime, where NDCS staff are required to work an additional four hours before or after their 12-hour shifts to cover a vacancy, is common. In addition, correctional staff are often assigned duties outside their job classification because of staff shortages. These dangerous practices put staff and prisoners in danger because staff are overextended and asked to perform duties they may not be trained to perform.
89. New employees are often being trained by other new staff, who are not yet sufficiently qualified to train others. Defendant FRAKES is fully aware of the staffing and training problems at NDCS facilities. He has previously referred to NDCS as “treading water” where filling vacancies was concerned. Additionally, Inspector General reports have repeatedly documented the staffing crisis. Defendant FRAKES has also surveyed his staff on the culture of NDCS, and employees have frequently referred to staffing difficulties. One employee commented in response to an internal survey that the job is “sink or swim and a lot are sinking.” Other “[e]mployees consider the ratio of [prisoners] to employees out of balance.”
90. Inadequate resources for programming and insufficient staffing leads staff to believe that NDCS is simply “warehousing” prisoners. Staff report that employees do not “know what the hell they’re doing” and remark that “without resources, good luck” rehabilitating anyone.
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4. Dangerous Consequences for Public Safety in Nebraska 91. All of these conditions present a grave danger to prisoners, staff, and the public. The NDCS Defendants’ failure to remedy these conditions has had disastrous consequences. 92. In 2013, prisoner Nikko Jenkins was released directly into society after being confined in isolation for two years. Within days of his release, he killed four people. Jenkins’ extended isolation and lack of mental health treatment has been cited as a contributing factor in his subsequent violence. 93. In response to the Jenkins case, the Nebraska Legislature passed Legislative Resolution 424, which created the Department of Correctional Services Special Investigative Committee (“Committee”). The Committee examined the use of isolation and the mental health treatment and programming available to prisoners. A report issued on December 15, 2014, detailed sixteen recommendations, including establishing the Office of Inspector General of the Nebraska Correctional System to conduct audits and investigations, mandating declaration of a correctional system overcrowding emergency when NDCS population exceeds 140%, and reforming the use of isolation. 94. In the following year, the Legislature reconstituted the Committee in order to evaluate the progress made on the December 2014 recommendations. The Committee held hearings on staffing, overcrowding, mental and behavioral health treatment, programming, and isolation in NDCS. 95. The Committee issued a report on December 22, 2016, which found that despite the 2014 recommendations, overcrowding remains an acute problem at NDCS. Design capacity was not increased, in large part because NDCS could not staff a new facility given the staffing crisis with existing facilities. Resources were not allocated to increase capacity, and legislation intended to change criminal sentences did not clear the Nebraska Legislature. The 2016 report
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also found that the absence of sufficient and appropriate programming for prisoners is directly linked to both increased staff assaults and overcrowding (because prisoners cannot complete the programs required for parole), and that continued programming deficiencies pose a risk to public safety, as prisoners released without having attended appropriate programming are more likely to reoffend. The 2016 report also found that, despite the recommendations made in the 2014 report, the absence of appropriate mental health care continued to result in problems, including the overuse of isolation, which exacerbates prisoners’ psychiatric disabilities, suicidality, and selfmutilation.
96. Overcrowding, understaffing, and underfunding of services at NDCS facilities has also led to dangerous and increasingly frequent prison riots.
97. On May 10–11, 2015, two prisoners died when several hundred prisoners rioted at TSCI in what has become known as the “Mother’s Day Riot.” The riot lasted for more than ten hours, during which uncontrolled prisoners assaulted staff and destroyed more than $2,000,000 in property. Prisoners provided staff and media a list of grievances motivating their actions; arbitrary use of isolation, inadequate programming, inadequate staffing, and overcrowding were the four primary grievances. Moreover, the severity and duration of the riot suggest there were inadequate staff on hand to follow appropriate riot response protocol.
98. Two years later, on March 2, 2017, some 40 prisoners rioted again at TSCI, resulting in the deaths of two more prisoners and injuries to dozens more. Only two weeks after that, on March 16, 2017, another outburst of violence at TSCI resulted in injuries to four staff members. One month later, on April 19, 2017, three staff members were injured after an altercation with a prisoner; two of those staff members required treatment at a nearby hospital.
99. Most recently, on April 7, 2017, prisoners started a fire in the dangerously
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overcrowded DEC facility, which was operating at 300% of capacity on the day of the incident. During the incident, non-rioting prisoners were locked in their cells for hours and forced to inhale smoke from the fires. Overcrowding and inadequate staffing by NDCS Defendants have been cited as causes for this incident.
100. Overcrowding, understaffing, and underfunding of services at NDCS facilities also prompts less severe outbreaks of violence and protest by prisoners, including incidents that resulted in injuries to prison staff. On at least four occasions since 2015, NDCS facilities have been placed on lockdown during these incidents.
101. Poor conditions and overcrowding at NDCS facilities also have serious consequences for the mental health of Nebraska prisoners. Emblematic of this mental health epidemic is the high rate of suicides in NDCS facilities. According to a U.S. Department of Justice report, from 2001 to 2014, the suicide rate in Nebraska prisons was 21 per 100,000 prisoners, more than 30% higher than the national average for state prisons of 16 per 100,000.
102. Despite these powerful incentives for change, the NDCS Defendants have failed to remedy the overcrowded, understaffed, and underfunded conditions plaguing the NDCS system.
103. These conditions are the primary cause of the Constitutional and statutory violations described herein, including (1) substandard health care, including medical, mental health, and dental care for prisoners, (2) overuse and improper use of isolation, including isolation of juveniles; and (3) discrimination against and failure to accommodate prisoners with disabilities. B. NDCS Defendants Routinely Overuse and Improperly Use Isolation
104. NDCS Defendants’ policies and practices with respect to housing prisoners in isolation violate the Eighth Amendment’s prohibition on cruel and unusual punishments, the
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Americans with Disabilities Act, and the Rehabilitation Act. 105. NDCS Defendants use the term “restrictive housing” to encapsulate immediate
segregation, disciplinary segregation, administrative confinement, and intensive management. For purposes of this complaint, Plaintiffs refer to all of the above, collectively, as “isolation.”
106. NDCS Defendants have long overused isolation in violation of the Eighth Amendment and other federal law. During a six-week period in 2014, approximately 950 of the state’s 5,100 prisoners—almost one in five—were held in some form of isolation, an excessive use of this dangerous practice.
107. NDCS Defendants’ policies and practices permit the use of isolation without restriction on juveniles, despite the knowledge that isolation of juveniles may cause or worsen depression, paranoia and outbursts in anger, and increased risk of suicide and other permanent harms.
108. Due to critical levels of overcrowding, NDCS Defendants use isolation beds as “extra beds” for prisoners of all custody levels, with no functional difference in housing between medium and maximum security. Prisoners have long complained that the decision to put a prisoner into isolation is arbitrary and often retaliatory; this complaint was the first on a handwritten list of grievances offered by the prisoners during the TSCI Mother’s Day Riot.
109. In addition, overcrowding in NDCS facilities routinely leads to NDCS Defendants assigning two prisoners to an isolation cell designed for one (referred to as “double celling”); the two prisoners are often confined together for upwards of 22 hours per day in a cell that can be as small as a parking space. This practice can have deadly consequences. On April 15, 2017, a prisoner in an isolation cell at TSCI summoned correctional officers to assist his unresponsive cellmate; the cellmate, Terry Berry, eventually died, and the prisoner has been charged with first-
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degree murder. Nebraska State Ombudsman staff commented to the press, in reference to two prisoners being housed in an isolation cell: “Why were there two people in that one cell?”
110. The large majority of adult prisoners in isolation in NDCS are held in four facilities: LCC, OCC, NSP, and TSCI. Conditions of isolation are designed to minimize human contact and environmental stimulation. Isolation cells are constructed completely of concrete and have small box windows. Isolation units where prisoners are kept in five-point restraints are entirely without windows. Many isolation cells completely lack personal property, including televisions and radios. Prisoners with disabilities are often deprived of their auxiliary aids, such as Braille blocks, talking clocks, walking canes, and TDD/TTY machines.
111. Prisoners in isolation often go months or years without any meaningful human interaction. Unless they are fortunate enough to receive a brief medical or legal appointment or a visit, prisoners are isolated from virtually all human contact. Their only regular interaction with another human being occurs when correctional staff deliver their food trays, or place them in restraints and strip-search them while taking them to or from their cell. The lack of human contact is so severe that some prisoners have taken to smearing their own feces on the wall just to get someone to talk to them.
112. Prisoners in isolation lack access to the programming, such as the Violence Reduction Program, that is available to prisoners in general population.
113. Instead of using isolation as punishment for only the most serious rules infractions, NDCS Defendants commonly place prisoners in isolation for technical and nonserious violations, including “horseplay” or being in an unauthorized area.
114. NDCS Defendants enforce a policy that makes “mutilation of self” a punishable infraction. Thus, prisoners with psychiatric disabilities, rather than being treated for their self-
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mutilation, suicidality, or other signs and symptoms of psychiatric disabilities, are disciplined for the manifestations of their disabilities and placed in isolation. These disability-related behaviors are often exacerbated by isolation.
115. NDCS Defendants have a policy and practice of punishing prisoners in isolation by denying them normal food and instead serving them only nutraloaf, a tasteless and disgusting loaf of starches and grains. Prisoners are often served nutraloaf for every meal for several consecutive days. Nutraloaf is so distasteful and inedible that prisoners sometimes stop eating altogether. Serving nutraloaf as punishment is banned in the prison systems of several states; other states require a hearing with due process protections before a nutraloaf-only diet can be imposed. NDCS Defendants’ policy and practice permits the arbitrary and capricious use of nutraloaf punishment without any hearing.
116. The devastating effects of these conditions of extreme social isolation and environmental deprivation are well known to NDCS Defendants. Isolation has long been recognized as damaging to mental and physical health. Recently, a study from the New York Academy of Medicine showed that experiencing isolation makes a prisoner 2.5 times more likely to experience symptoms of post-traumatic stress disorder (PTSD). Other research indicates that suicide and self-mutilation rates are far higher for prisoners in isolation. Isolation exacerbates psychiatric disabilities, and it can lead to cognitive deterioration and heightened stress-related symptoms. Isolation can also exacerbate, and in some cases cause, physical and/or psychiatric disabilities, including gastrointestinal disorders, insomnia, eyesight deterioration, heart palpitations, migraines, and profound fatigue. Even those who endure the effects of isolation better than others are subjected to intolerable conditions, as they are forced to endure the hallucinations and screaming of other prisoners suffering the debilitating effects of isolation.
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117. In 2015, the United Nations General Assembly adopted the U.N. Standard Minimum Rules for the Treatment of Prisoners, known as the “Nelson Mandela Rules.” These rules explicitly prohibit “[i]ndefinite” or “[p]rolonged” isolation; the latter is defined as “a time period in excess of 15 consecutive days.” The Rules stress that isolation is a measure of last resort and should only be used “for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority.” By contrast, new rules in the Nebraska Administrative Code which took effect in 2016 still refer to isolation of less than thirty days as “short term” and contemplate “longer-term restrictive housing” “primarily as a behavior management intervention.” 72 Neb. Admin. Code, ch. 1, §§ 003.03, 003.04. When a prisoner is assigned to “longer-term restrictive housing,” the rules only require review of the prisoner’s assignment every three months. Id. at § 004.03(B)(iv).
118. The Nelson Mandela Rules also provide that isolation is prohibited in the case of youth under the age of 18. The U.S. Department of Justice has similarly advised that juveniles should not be placed in isolation and that corrections officials should limit, whenever possible, use of isolation against “young adults,” classified as those ages 18–24 at the time of conviction. When juveniles are housed in isolation, a maximum stay of less than four hours is indicated. New York has recently agreed to ban isolation for juveniles in state prisons. Policies and practices at NDCS facilities stand in stark contrast to these recommendations. During fiscal year 2016, NDCS officials housed almost 200 prisoners aged 17–21 in isolation. Moreover, juvenile prisoners have described being placed in isolation for months on end for up to 23 hours a day.
119. NDCS policies, procedures, and practices do not provide for effective monitoring of prisoners in isolation. For those without a mental health diagnosis, mental health professionals check in only once every 90 days on prisoners in isolation. The American Bar Association
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recommends that any prisoner in segregated housing for more than 24 hours meet in-person with qualified mental health professionals, and that correctional staff log prisoners’ behaviors daily.
120. NDCS Defendants routinely use five-point restraints on prisoners in isolation, and this use is improper and punitive. The American Bar Association standard on use of restraints clearly states that “four- or five-point restraints should be used only if a prisoner presents an immediate and extreme risk of self-injury or injury to others” and that such restraints should only be used “after less restrictive forms of restraint have been determined likely to be ineffective.” Five-point restraints are especially dangerous because they can lead to death by asphyxiation or strangulation. When their use is unavoidable, it must be supervised by a qualified health care professional. During the entire time the prisoner is in restraints, the American Bar Association recommends that prisoners are video- and audio-recorded, and prisoners should be checked every fifteen minutes by medical staff to evaluate the continued need for restraint and to ensure prisoner safety. NDCS mental health staff monitor patients in behavioral restraints as infrequently as once every 12 hours. Prisoners have also been restrained to hard beds with no mattresses.
121. With respect to isolation of prisoners, the NDCS Defendants employ policies, practices, and procedures that cause undue pain, suffering, and risk of harm to prisoners at NDCS facilities. These include the following:
a) Using isolation as a punishment for a prisoner’s mental health crises or request for mental health care;
b) Placing prisoners with psychiatric disabilities in isolation instead of in secure or appropriate treatment beds;
c) Housing prisoners in isolation for long periods of time without adequate
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supervision or mental health care; d) Using nutraloaf as punishment; e) Using five-point restraints as punishment, without adequate supervision,
or for unnecessarily long periods of time; f) Using pepper spray on prisoners with psychiatric disabilities; g) Providing inadequate suicide prevention programs and monitoring of
prisoners in isolation who are at risk of suicide and failure to remove suicide hazards from isolation cells;
h) Using isolation on juvenile prisoners without restrictions and without regard to the inherently increased dangers it poses for juveniles, including increased risk of pain, suffering, and permanent harm, including death by suicide. 122. NDCS Defendants’ ongoing policies and practices of imposing harsh and deprived conditions on prisoners in isolation, rather than supportive housing and mental health treatment of prisoners who express suicidal ideation, self-mutilate, or attempt suicide, evidence the deliberate indifference of Defendants FRAKES and DEOL to the substantial risk of serious harm, mutilation, and death from these isolation policies and practices. These policies and practices discourage prisoners from seeking mental health care and increase the risk of self-harm and suicide. C. NDCS Defendants Provide Constitutionally Inadequate Health Care 123. NDCS Defendants’ policies and practices result in health care that violates the Eighth Amendment’s prohibition on cruel and unusual punishments. Defendants FRAKES and DEOL are deliberately indifferent to such violations. NDCS Defendants are required by law to provide the “community standard of health care” to all prisoners, but they fall far below that measure. NDCS Defendants are well aware of severe system-wide deficiencies that have caused
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and continue to cause significant harm to the prisoners in their custody, yet they have failed to take reasonable measures to abate this impermissible risk of harm.
124. NDCS Defendants fully control all aspects of health care available to prisoners, including medical, mental health, vision, hearing, and dental care. NDCS Defendants prohibit prisoners from obtaining any medications without approval from NDCS Defendants. NDCS Defendants control whether prisoners have medical devices like hearing aids. Prisoners at NDCS cannot be seen by any medical professionals, inside or outside of NDCS, without approval from NDCS Defendants. Prisoners cannot receive laboratory or other diagnostic testing without approval from NDCS Defendants. In short, prisoners are at the mercy of NDCS Defendants for all aspects of their health care.
125. NDCS Defendants maintain insufficient numbers of health care professionals to provide minimally adequate care to the more than 5,200 prisoners in their custody. There are not sufficient health care staff to timely respond to prisoners’ requests for medical evaluations and treatment; to adequately screen, monitor, and provide follow-up care to prisoners who are suffering from serious and chronic illnesses; or to treat prisoners on an emergency basis. The small number of health care staff that NDCS Defendants do employ are not sufficiently trained.
126. The failure to provide adequate health care, including mental health, medical, and dental care, begins at intake. When prisoners are newly admitted to NDCS, they are sent to DEC. There, prisoners are evaluated for medical or mental health conditions, though given that DEC consistently operates at 300% of its capacity, this process can take weeks or months. During the intake process, NDCS Defendants often fail to identify prisoners with chronic illness and other disabilities including hypertension, asthma, and diabetes. Female prisoners are not routinely provided with pregnancy tests, even when they report a recent rape. Prisoners entering the NDCS
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system are not properly screened for psychiatric, intellectual, sensory and physical disabilities, or other behavioral needs. This causes significant risk of harm by exacerbating prisoners’ disabilities; causing harm and injury to prisoners with chronic illnesses and disabilities; and placing them in inappropriate housing settings, which puts them at risk of violence and exploitation.
127. The substandard care continues throughout prisoners’ incarceration in NDCS facilities. Medical screening procedures and appointments are routinely conducted in nonconfidential and non-sanitary treatment space and hallways. Prisoners in isolation receive mental health “check-ins” which are conducted through the door of the cell, within earshot of other prisoners and correctional staff, compromising confidentiality and quality of care.
128. If prisoners are seen by health care staff at all, they often experience substantial delays in receiving those appointments. Prisoners also experience long delays before they are seen and treated by outside specialists, before they receive surgery at outside facilities, or before they receive dental care. Further, NDCS Defendants fail to timely review and act on laboratory and testing results, which in turn delays the prisoners’ receipt of critical care, or means that they receive no care at all. As a result of these deficiencies, prisoners with disabilities or serious and life-threatening conditions unnecessarily suffer and are put at risk of harm.
129. When prisoners do finally receive care, it is often compromised by the inadequate training and supervision of overworked medical staff, who fail to: timely and appropriately identify medical, mental health, vision, hearing, and dental problems during the screening and intake process at the DEC; properly process and timely respond to prisoners’ requests for medical evaluation; evaluate and treat prisoners who were undergoing care for chronic or serious conditions prior to being incarcerated at NDCS; respond to emergency medical situations and
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requests for emergency medical treatment from prisoners; timely order and review diagnostic testing; timely refer prisoners to medical specialists or outside medical facilities; effectively treat prisoners discharged from the hospital or infirmary; and maintain adequate medical records.
130. Because the screening process is inadequate to identify prisoners with disabilities or serious or chronic health care problems, prisoners are at a significant risk of serious harm. For example, prior to being brought to NDCS, one female prisoner was sexually assaulted and impregnated. When she was admitted to NDCS in June 2016, she reported to NDCS that she had been raped six months earlier. She was never tested to see if she was pregnant. Neither she nor medical staff realized she was pregnant until September 2016, when she complained of back pain and bloody vaginal discharge. She was told she was simply constipated and was given ibuprofen. Around ten hours later, after excruciating pain and more blood loss, she was finally taken to the hospital. She gave birth less than one hour later. Her prior blood loss and lack of medical care was so severe that she needed a blood transfusion following her labor.
131. NDCS Defendants fail to ensure that prisoners who are deaf or hard of hearing, or have other communication disabilities and use ASL as their primary method of communication, are provided with qualified sign language interpreters to ensure effective communication with health care staff. Without interpretation, these prisoners are not able to explain to medical care providers the symptoms they are experiencing, and medical staff are not able to explain the benefits and risks of treatments, medications, and procedures so that prisoners can provide their informed consent.
132. NDCS Defendants routinely release prisoners with serious medical conditions from NDCS facilities without providing them with services to ensure that their medical care is not disrupted. NDCS Defendants’ policies and practices for the provision of continuing health
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care, including medical, mental health, and dental care services, upon a prisoner’s release are systemically inadequate. NDCS Defendants fail to adequately train custody and medical staff how to appropriately release prisoners with serious medical conditions so that such prisoners can continue their medical care. Prisoners taking prescribed medications are released without either a supply of or a prescription for those medications. NDCS Defendants do not schedule follow-up appointments in the community, nor are prisoners provided with sufficient referrals or information about where they may receive health care services.
133. With respect to prisoners’ health care, including mental health, medical, and dental care, NDCS Defendants have failed and continue to fail in at least the following ways:
a) Failure to provide timely access to care, with excessive and often dangerous delays for everything from routine to emergency care;
b) Failure to promulgate and follow adequate policies for screening, diagnosing, monitoring, and providing follow-up care to prisoners, especially those with chronic conditions;
c) Insufficient numbers of health care professionals to provide even minimal care to the more than 5,200 prisoners in NDCS;
d) Insufficient numbers of custody staff to transport prisoners to health care encounters, both within NDCS facilities and at community medical facilities;
e) Inadequate training, policies, and procedures for custody staff who respond to health care emergencies;
f) Inadequate physical space to conduct private medical screenings and appointments, resulting in breaches of prisoners’ confidentiality and dangerous and unsanitary conditions;
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g) Failure to provide a reliable way for prisoners to alert staff to their need for evaluation or care, or to complete a grievance process when care is denied;
h) Failure to perform diagnostic testing to diagnose and treat serious medical conditions, including psychiatric disabilities, diabetes, pregnancy, and high blood pressure;
i) Irregular, inaccurate, and incomplete medical records for prisoners, failure to satisfy minimum standards of record-keeping (for example, failure to document progress reports or the rationale for changing a medication), and a failure to train staff to properly maintain these records, resulting in risk of misdiagnosis or inappropriate treatment;
j) Failure to timely provide prisoners with the medications, tests, and procedures that have been ordered by their physicians, including colonoscopies and mammograms;
k) Failure to institute, track, and provide periodic dental, medical, and mental health testing and screening based on factors such as age and gender necessary to timely identify and to prevent otherwise avoidable pain, suffering, and death;
l) Failure to timely refer prisoners to outside specialists or surgeons when needed and to follow through on specialist recommendations;
m) Failure to ensure continuity of care when prisoners are released from NDCS facilities, including assistance with applications for Supplemental Security Income and veteran’s benefits;
n) Failure to make accommodations for prisoners with disabilities who cannot adequately access health care without such accommodations; and
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o) Failure to maintain an appropriate formulary of medications and to establish and implement appropriate policies and procedures for medication management and distribution to prisoner patients. 134. NDCS Defendants’ health care policies and practices are deficient and inadequate, subjecting prisoners to a substantial risk of unnecessary suffering, serious injury, clinical deterioration, or death. Defendants FRAKES and DEOL have knowledge of the deficient and inadequate policies and practices and the resulting substantial risk of serious, avoidable, and unnecessary harm and suffering to NDCS prisoners, but have failed to remedy these deficiencies. 135. There are many examples of substandard medical care at NDCS facilities. In addition to the experiences of the named plaintiffs, NDCS Defendants’ deliberate indifference to prisoners’ serious medical needs has resulted in at least the following specific instances:
a) Six-month delay in providing a prisoner’s prescribed antidepressants, causing exacerbation of her disability and unnecessary pain;
b) Denial of care because a prisoner’s release from NDCS custody is allegedly imminent;
c) Repeated delays in providing prescribed medication for an epileptic prisoner, resulting in two separate incidents of a seizure, during which the prisoner was injured;
d) Denial of prescription medication needed to control a prisoner’s psychiatric disability; when the prisoner was subsequently unable control his disruptive outbursts, he was placed in isolation as punishment;
e) Unreasonable delay in taking an x-ray of a prisoner’s shoulder after he was attacked and badly injured by another prisoner, causing him additional pain and
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injury; f) Failure to provide an MRI and other care for a prisoner’s arthritic knee,
allowing it to deteriorate to the point that full knee replacement may be necessary; g) Delaying required MRI and CT scans for a prisoner because it “cost too
much,” allowing the condition to deteriorate and cause unnecessary pain and injury; h) Failure to evaluate a prisoner with increasing abdominal pain, liver
problems, and weight loss for cancer or organ failure, placing the prisoner at risk of exacerbation of the illness, pain, and injury;
i) Delaying a prisoner’s pelvic ultrasound and colonoscopy for months because NDCS Defendants lacked transportation to take her to the facility, during which time the prisoner suffered avoidable pain and injury;
j) Providing insufficient care to a prisoner suffering from liver lesions and pancreatitis because NDCS Defendants were short-staffed and could not make time to send him to an outside specialist;
k) Failure to provide follow up care to a prisoner who has repeatedly displayed abnormal EKG findings and decreased liver function that indicated possible Hepatitis C infection, causing the prisoner pain and injury and placing the prisoner at substantial risk of harm;
l) Failure to provide care for a prisoner with heart problems, low blood platelets, and a fatty liver, causing the prisoner pain and injury;
m) Failure to follow up on a prisoner’s abnormal mammogram results, placing the prisoner at significant risk of injury; and
n) Inadequate vision care, including a failure to provide prisoners with more
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than one pair of eyeglasses per year, even if prisoners’ glasses are lost or broken. 136. The substandard care provided by NDCS defendants has had deadly consequences. On August 11, 2016, Rolland Jones, a prisoner at the Nebraska State Penitentiary (NSP), died of a myocardial infarction. In the four weeks leading up to his death, he repeatedly complained to medical staff of shortness of breath, chest pain, and dizziness on exertion. A subsequent NDCS review concluded that during many of those visits, the “critical nature of his complaint was not appreciated.” Though he was prescribed nitroglycerin, it was never ordered for him, and no labs or electrocardiograms were ever conducted. Jones suffered a massive heart attack; neighboring prisoners kicked and punched their cell doors, yelling “medical emergency,” for 15 to 20 minutes before any staff arrived. When staff arrived at Jones’ cell, no CPR or AED was administered, nor did any staff member even check for a pulse. Fellow prisoners reported that Jones had complained of chest pain that morning, but he had been refused medical treatment. 137. NDCS Defendants’ policies and practices for dental care are deficient and inadequate, subjecting prisoners to a substantial risk of unnecessary suffering, serious injury, clinical deterioration, or death. Defendants FRAKES and DEOL have knowledge of these deficient and inadequate policies and practices and the resulting substantial risk of harm and suffering to NDCS prisoners, but they have failed to remedy these deficiencies. 138. NDCS Defendants’ dental care consists almost exclusively of extracting teeth, even if a much less invasive procedure is medically appropriate. Rarely are other treatments provided, despite prisoners’ requests for services such as fillings and root canals, rather than extraction. Prisoners regularly face the terrible dilemma of keeping a tooth and suffering pain, or ending the pain and losing a tooth that otherwise could be saved. Extractions of teeth that could
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be salvaged are so common that many prisoners will not visit the dentist because they know they will just lose their teeth, regardless of the underlying problem.
139. NDCS Defendants either do not provide dentures or provide dentures that fit so poorly as to be unusable. This causes prisoners difficulty eating, potentially leading to poor nutrition, and also causes discomfort, embarrassment, and pain. Prisoners report mouth ulcers which often go untreated for months.
140. NDCS Defendants’ policies, procedures, and practices do not provide for routine dental screening and annual and other periodic dental examinations and treatment necessary for dental health and to avoid pain, suffering, and dental disease.
141. Prisoners are entirely dependent on the NDCS Defendants for all mental health care. According to NDCS records, as of September 2016, just over 50% of the NDCS population had a mental health diagnosis; of those 2,703 prisoners with a diagnosis, 1,560 prisoners had cooccurring mental health and substance abuse diagnoses, and 201 prisoners had a “Seriously Mentally Ill” diagnosis.
142. NDCS Defendants’ policies and practices for mental health care are deficient and inadequate, subjecting prisoners to a substantial risk of deteriorating psychiatric disabilities, extreme and unnecessary anguish and suffering, and death. Defendants FRAKES and DEOL have knowledge of these deficient and inadequate policies and practices and the resulting substantial risk of serious harm to NDCS prisoners, but have failed to remedy these deficiencies.
143. NDCS Defendants fail to adequately identify, track, and treat the psychiatric disabilities of newly arriving prisoners during the screening and intake process. The intake process and mental health evaluation can take months, and during this wait, all prescribed medications are confiscated and prisoners are not given the prescription medication they need.
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Medications also regularly fail to accompany prisoners when they are transferred from one NDCS facility to another. This results in disrupted treatment, unnecessary suffering, and exacerbation of illness.
144. Continuity of care for prisoners with psychiatric disabilities and other mental health needs is deficient. Critical understaffing and inadequate recordkeeping has created a system where mental health staff at NDCS facilities are often unaware of concurrent medical conditions or whether prisoners are in fact taking their psychiatric medications as prescribed. NDCS Defendants currently have no psychiatrists on staff for the entire prison system. Psychiatric medications are instead being prescribed by nurse practitioners, without appropriate supervision. Additionally, Nebraska law provides that a court order to provide a prisoner with involuntary psychiatric medication requires the testimony of two psychiatrists concerning the patient’s need for treatment. Without psychiatrists on staff, NDCS Defendants are unable to obtain these life-saving court orders.
145. Defendant DEOL is aware of the lack of psychiatrists on staff at NDCS facilities and has not remedied this crisis. He has acted with deliberate indifference to the risk of harm posed by inadequate psychiatric care and understaffing.
146. Neither health care nor corrections staff are adequately trained to recognize signs and symptoms of psychiatric disabilities and refer to mental health staff those prisoners exhibiting such signs and symptoms. Instead, prisoners with psychiatric disabilities are often ignored, mocked, or even punished for their disabilities.
147. NDCS Defendants do not adequately monitor prisoners with psychiatric disabilities. In isolation units, mental health staff only rarely conduct mental status examinations. Some NDCS facilities are so understaffed that mental health staff can only provide basic
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surveillance, and little or no actual treatment. 148. Medication management in general is systemically inadequate; medications are
self-administered except in skilled nursing areas, and they are delivered to prisoners by untrained custody staff, using a fishing tackle box. This self-administration process has allowed prisoners to hide pills and then later take a large number of pills at once to attempt suicide. Basic sanitation is not maintained, as staff members do not wear gloves or wash hands between prisoner visits. Staff members have prisoners themselves write down how many pills the prisoner took during medication rounds, even though policy requires staff members to do this recording. Medication rooms are not always secured, allowing prisoners to steal medication.
149. In NCCW, medication distribution now occurs at a central location too small to accommodate prisoners who need treatment. The line of prisoners stretches outside the door, regardless of rain or temperature. This puts disabled and elderly prisoners at significant risk of harm or injury.
150. NDCS medication management is also deficient because it breaches patient confidentiality. A medication distribution system must include confidential communication with the prisoner by a health care staff member about the risks and side effects of the medication. The NDCS medication system fails to conduct these conversations; if they do occur, they are not confidential because they take place within earshot of other prisoners and staff.
151. Overcrowding and understaffing make the provision of adequate mental health care all but impossible. As of September 2016, 34 of 161 (21%) behavioral and mental health positions in NDCS were vacant. This level of understaffing leads to heightened disruptions and inability to provide necessary services, as well as high turnover for existing staff, creating a vicious cycle of understaffing. Defendants were informed in July 2015 by their own consultant,
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Dr. Bruce Gage, that their mental health care policies, procedures, and practices were dangerous and deficient in many ways. NDCS does not have access to licensed psychiatric hospital beds, and no community hospitals will accept prisoners as patients. As a result, prisoners with severe psychiatric disabilities are treated in the residential units, or sometimes in the infirmary, when they are in psychiatric crisis or require hospitalization. DEC is the only facility with suicide watch cells; if a prisoner needs monitoring, he or she must be transferred to this facility. This is especially problematic given that DEC is commonly operating at 300% of its capacity.
152. The mental health facilities at LCC and NCCW are outdated and not suicide proof. NCCW’s most secure mental health unit is not suicide proof and has second tier floors from which jumping and hanging are possible. The LCC facilities were described by Dr. Gage as having a high risk of suicide and as “archaic and austere.” The secure mental health units at LCC are only marginally suicide proof, and there is no programming space. Meetings with mental health staff in these LCC units are not confidential, and the entire facility, including the mental health residential unit, is not ADA compliant.
153. NSP has no residential mental health unit and lacks the capacity or the resources to treat prisoners with psychiatric disabilities, in spite of the fact that as of July 2015, over 28% of NSP prisoners were on psychotropic medications. The mental health building at NSP consists only of office space, so all prisoners must be seen elsewhere and share space with the rest of the facility. This reduces productivity and prevents confidential communications between patients and mental health staff. All NDCS facilities also lack adequate programming to assist prisoners with psychiatric disabilities.
154. NDCS Defendants often house prisoners with psychiatric disabilities in isolation, putting them at substantial risk of serious harm. Understaffing and overuse of isolation for
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prisoners with psychiatric disabilities go hand in hand. Due to the severely understaffed mental health program, corrections officers frequently move patients with psychiatric disabilities to isolation for lack of a better way to deal with them. Of the 313 prisoners in isolation in September 2016, two-thirds (209) had diagnosed psychiatric disabilities. Once in isolation, these prisoners’ disabilities and psychiatric symptoms generally worsen, sometimes catastrophically. For example, on July 27, 2014, a prisoner at TSCI named Patrick Howley committed suicide while in isolation, despite his repeated requests to be placed in an observation unit for recurring and urgent suicidal thoughts. NDCS staff left him in isolation, failed to perform safety checks, mocked him, and failed to remove the biohazard bag that Howley eventually used to kill himself.
155. The conditions in isolation are extremely punitive and restrictive. NDCS Defendants permit prisoners in isolation to have only one to two hours of out-of-cell time per day. During that time period, prisoners are expected to shower, exercise, and use the telephone. Prisoners are generally released from their cells individually, meaning they are alone even when outside their cells. As a result, there are very few opportunities for human interaction.
156. At Unit 2B in TSCI, a maximum security unit, prisoners with psychiatric disabilities are double-celled in isolation for 23 hours a day, deprived of visiting opportunities available to other prisoners, and denied programming and mental health care. These prisoners routinely engage in extreme and potentially lethal acts of self-harm.
157. These conditions significantly increase the risk that prisoners with psychiatric disabilities will deteriorate. A significantly disproportionate percentage of prison suicides occur in isolation units. Because of the risks posed by isolation to prisoners with psychiatric disabilities, a consensus has developed that prisoners with psychiatric disabilities should be placed in isolation only if absolutely necessary and for only brief periods of time. For example,
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American Bar Association standards recommend that “no prisoner diagnosed with serious mental illness should be placed in long-term segregated housing.” Additionally, the Nelson Mandela Rules prohibit isolation in the case of prisoners with psychiatric disabilities when those conditions would exacerbate their disabilities. The Inter-American Commission on Human Rights has specifically established that isolation “should be absolutely prohibited . . . for persons with mental disabilities.”
158. By contrast, NDCS Defendants often place prisoners with psychiatric disabilities in isolation as punishment for breaking the rules or being deemed “difficult,” regardless of whether their behavior results from their disabilities or whether isolation will aggravate their disabilities.
159. NDCS Defendants do not have adequate safeguards in place to ensure that prisoners with psychiatric disabilities are protected from isolation. In fact, rather than only placing prisoners with psychiatric disabilities in isolation when absolutely necessary, NDCS Defendants have a policy and practice of placing prisoners with psychiatric disabilities in isolation solely because of their psychiatric disabilities. NDCS, which is critically understaffed in mental health staff, often uses isolation for prisoners with psychiatric disabilities for lack of available, legitimate treatment options or for punitive purposes.
160. While NDCS Defendants do not systematically record the specific rationale for moving a prisoner to isolation, some corrections officers’ notes of reasons for prisoner transfers include “mental health stabilization” or “mental health,” suggesting that the prisoner was placed in isolation because of his or her psychiatric disabilities.
161. NDCS Defendants also enforce a policy that makes “mutilation of self” a punishable infraction. Thus, prisoners with psychiatric disabilities, rather than being treated for
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their suicidality, self-mutilation, or other signs of psychiatric distress, are punished for the manifestations of their disabilities and placed in isolation, aggravating their underlying disabilities, and putting them at grave risk of serious injury or death.
162. NDCS Defendants have placed prisoners with schizophrenia in isolation, further exacerbating their disabilities. One LCC prisoner has been in isolation for 20 years despite being diagnosed with schizophrenia. His placement in isolation is because of his psychiatric disability, and his symptoms have been exacerbated by his time in isolation. Another prisoner has been in isolation at NCCW for more than two years despite a diagnosis of schizophrenia that would greatly benefit from human contact and non-isolated housing.
163. NDCS Defendants house prisoners with serious psychiatric disabilities and intellectual disabilities in isolation, in violation of the ADA. Prisoners with disabilities may not be placed in isolation due solely to their disabilities or out of mere convenience, and instead must be housed in the most integrated and least restrictive setting appropriate to their needs.
164. NDCS Defendants employ a flawed grievance procedure for prisoners who are denied health care. When prisoners are denied care, they are told to fill out a standard grievance form. Custody staff routinely deny prisoners’ requests for health care even in emergency situations, directing them to submit a grievance instead.
165. The grievance process is difficult for prisoners to understand and follow. NDCS requires prisoners to file informal grievances within three calendar days of the incident, and staff must respond within ten business days. Appealing the response must be done at two levels, and prisoners are required to adhere to very strict deadlines. Prisoners are also required to provide several attachments to their appeals, which can be difficult for prisoners who do not understand that they are required to keep these grievances and responses.
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166. NDCS Defendants also fail to provide adequate grievance opportunities to prisoners in isolation, and they fail to provide assistance to those prisoners who, due to physical, intellectual, or psychiatric disability, are unable to grieve on their own.
167. Grievance forms are not freely available in the housing units, particularly in the isolation units. NDCS Defendants do not adequately train staff in how to provide, appropriately process, and timely respond to grievance forms. D. NDCS Defendants and BOP Defendants Violate the ADA and Rehabilitation Act
168. NDCS Defendants incarcerate significant numbers of individuals with disabilities, as that term is defined in the ADA and the Rehabilitation Act. NDCS Defendants routinely fail to provide these prisoners with accommodations to ensure equivalent access to programs and services offered at NDCS facilities. NDCS Defendants’ failure to accommodate prisoners with disabilities not only denies them access to programs and services, but also puts them at risk of injury or victimization by other prisoners. Moreover, NDCS Defendants’ failure to accommodate prisoners with disabilities results in the provision of inadequate health care, including medical, dental, and mental health care, and the violation of prisoners’ due process rights in NDCS disciplinary and parole hearings.
169. Under the ADA and the Rehabilitation Act, NDCS Defendants must create and maintain a system to identify and track individuals with disabilities and the accommodations they require, but NDCS Defendants fail to do so.
170. NDCS Defendants routinely fail to identify prisoners with disabilities upon intake and thereafter. NDCS staff responsible for conducting the intake process are not adequately trained how to identify and track individuals with disabilities, and therefore frequently fail to properly assess prisoners with disabilities upon intake. This failure results in the provision of inappropriate housing and inadequate accommodations, discriminating against prisoners with
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disabilities by denying them access to NDCS and BOP programs, services, and activities, and placing them at risk of injury or exploitation.
171. NDCS Defendants do not maintain any central list, electronic or otherwise, of prisoners with disabilities and the accommodations they require. NDCS Defendants do not maintain adequate information about prisoners’ disabilities and related accommodations in the prisoners’ custody or medical files. To the extent that NDCS Defendants maintain any information about a prisoner’s disabilities, custody, medical, and clerical staff are not provided with access to the information in a manner that would timely and effectively inform them of a prisoner’s disabilities and required accommodations. NDCS Defendants do not adequately train staff to maintain records or information about prisoners’ disabilities and necessary accommodations.
172. The lack of an adequate disability and accommodation tracking system results in substantial injuries to prisoners with disabilities. Without an adequate tracking system, medical and custody staff have no easily accessible means to determine whether a prisoner has a disability, and what, if any, accommodations a prisoner requires. Consequently, NDCS Defendants fail to provide prisoners with needed accommodations, or they withdraw without justification accommodations that have already been provided.
173. NDCS Defendants do not provide an effective or functional grievance system for prisoners with disabilities or a method for prisoners with disabilities to mark their grievance as disability-related. NDCS Defendants routinely deny prisoners with disabilities access to grievance forms. NDCS Defendants lack adequate policies and procedures instructing NDCS staff on how to respond if prisoners with disabilities request accommodations through means other than the grievance process.
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174. NDCS Defendants do not provide prisoners with adequate notice of how to request reasonable accommodations for their disabilities. As a result, prisoners with disabilities are not informed of any specific process for complaining about disability discrimination or requesting disability accommodations.
175. Prisoners with disabilities that impair communication require appropriate auxiliary aids and services to ensure effective communication and equal access to programs and services. NDCS Defendants fail to provide such auxiliary aids and services, including qualified sign language interpreters, captioning, hearing aids, strobe fire alarms and other auxiliary aids. NDCS Defendants fail to adequately train staff on how and when to provide such auxiliary aids and services. NDCS Defendants further fail to assess prisoners’ need for auxiliary aids and services.
176. NDCS Defendants do not provide prisoners who are deaf or hard of hearing or have speech impairments with qualified sign language interpreters or other auxiliary aids during the intake process, which harms these prisoners by preventing them from communicating specific concerns, including emergency medical issues, and understanding NDCS Defendants’ policies and practices.
177. NDCS Defendants fail to provide equal access to telecommunications by failing to provide a videophone that provides access to Video Relay Service for prisoners who rely on sign language to communicate effectively or a TDD/TTY machine for prisoners who do not sign and cannot use the conventional telephone. When NDCS Defendants do provide a TDD/TTY machine, it is often broken and ineffective.
178. NDCS Defendants also fail to provide prisoners who are deaf or hard of hearing or have speech impairments with sign language interpreters, hearing aids, or other auxiliary aids
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to permit participation in other NDCS programs and services, including religious services and educational and vocational classes.
179. NDCS Defendants do not provide equal access to television to prisoners who are deaf or hard of hearing. Most non-disciplinary housing units have televisions installed for prisoners to watch, but either NDCS Defendants have not installed televisions with the capability to display closed captioning or they refuse to alter the settings to the televisions to display closed captioning. Additionally, informational programs regarding NDCS services and programs are not always created with captions to make them accessible.
180. NDCS Defendants fail to provide sign language interpreters, hearing aids, or other auxiliary aids at disciplinary hearings, and accordingly deny such prisoners the same opportunity to participate in disciplinary hearings afforded to prisoners without disabilities.
181. NDCS Defendants fail to provide prisoners who are deaf or hard of hearing or have speech impairments with sign language interpreters, hearing aids, or other auxiliary aids and services for interactions with NDCS medical, mental health, and dental care staff, despite the critical importance of these interactions. NDCS Defendants fail to provide these auxiliary aids and services despite their knowledge that these prisoners cannot effectively communicate without them, and that without these aids and services prisoners with hearing disabilities are at an increased risk that medical, mental health, or dental illnesses will not be diagnosed or will be misdiagnosed.
182. NDCS Defendants lack any policy, practice, or system for notifying prisoners with hearing disabilities of announcements for meals, visitors, medical appointments, and other general notifications.
183. NDCS Defendants endanger prisoners who are deaf or hard of hearing by failing
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to institute any system for visually identifying prisoners who are deaf or hard of hearing. Without a system of visual identification, there is an increased risk that NDCS staff will interpret the prisoner’s actions as a willful failure to comply with an order, rather than as a failure to hear and understand the order. As a result, prisoners who are deaf or hard of hearing are at an increased risk of disciplinary proceedings and use force for failure to comply with an order that they have not heard.
184. NDCS Defendants lack any policy, practice, or system for notifying prisoners with disabilities of emergencies, including alarms, fires, and tornadoes. NDCS facilities do not have a visual or tactile alarm system to alert prisoners with disabilities. Thus, there is an increased risk that these prisoners may not be aware of an emergency, or may not receive needed assistance during the emergency, and they are therefore at increased risk of injury or death should one occur.
185. NDCS Defendants lack any policies or practices to ensure that prisoners with mobility disabilities are safely evacuated from NDCS facilities in the event of an emergency. The emergency exits in NDCS, to the extent they exist, are not accessible to prisoners in wheelchairs. As a result, prisoners with mobility disabilities are at increased risk of injury or death in an emergency.
186. NDCS Defendants lack policies and practices to ensure that prisoners with disabilities who require assistive devices, including, but not limited to, wheelchairs, walkers, crutches, canes, braces, tapping canes, hearing aids, and pocket talkers, as accommodations are provided with and are allowed to retain those devices. NDCS Defendants fail to adequately train staff to timely and appropriately provide assistive devices to prisoners with disabilities.
187. NDCS Defendants’ policies, practices, and procedures authorize staff to initiate
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disciplinary proceedings and use force against prisoners who fail to follow orders. Correctional staff are not trained to communicate with prisoners with disabilities. NDCS rules and correctional officer verbal orders can be difficult or impossible for someone with a psychiatric or developmental disability to understand and follow. NDCS Defendants’ policy and practice includes use of force against prisoners for failure to comply with an order, including the use of Tasers, pepper spray, pepper balls, and lethal firearms, without accommodation or modification for prisoners with disabilities.
188. Multiple NDCS facilities were constructed or altered after the enactment of the ADA, including the CCC-L, which opened in 1993, NCYF, which opened in 1998, and TSCI and WEC, which both opened in 2001. Additionally, the NCCW and OCC were both significantly altered after the enactment of the ADA. However, these and other NDCS facilities are not fully accessible and lack features such as grab bars to allow prisoners with mobility disabilities to shower and toilet safely and independently. Upon information and belief, there are additional barriers throughout NDCS facilities including narrow doorways, raised lips and steps, steep slopes, inaccessible dining tables and yards, and inaccessible exercise equipment. NDCS facilities also lack adequate ramps for prisoners using wheelchairs, walkers, crutches, canes, braces, or other assistive devices.
189. NDCS Defendants fail to ensure that prisoners with disabilities are placed in housing units and beds that are accessible and safe. NDCS Defendants fail to adequately train staff on how to house prisoners with disabilities in accessible and safe housing and how to provide prisoners with disabilities equal and meaningful access to programs and services.
190. The housing units at NDCS facilities differ in their design and level of inaccessibility to prisoners with disabilities. Some of the housing units are dormitories, where
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many beds, including triple bunks, are placed in an open area that is shared by the prisoners. Other units are divided into a number of cells in which one or two prisoners are housed. Cells that house two prisoners typically have bunk beds in them. Some of the housing units in NDCS are located up a flight of stairs, while others are on the ground floor.
191. NDCS Defendants assign prisoners to housing without taking into account prisoners’ disability-related limitations. Because of NDCS Defendants’ general failure to identify and track prisoners with disabilities, NDCS Defendants make housing decisions without sufficient information regarding prisoners’ accommodation needs, thereby increasing the risk that a prisoner with disabilities will be assigned to a housing unit that is not accessible.
192. NDCS Defendants offer numerous programs, services, and activities that are not accessible to prisoners who are blind. Classes and programs at NDCS facilities frequently use printed materials that are not provided to blind prisoners in an accessible format. NDCS Defendants also fail to offer auxiliary aids such as talking calculators. Instruction to prisoners with vision disabilities is therefore less effective than instruction to sighted prisoners.
193. NDCS Defendants have no system in place to allow blind prisoners to access any prison services that require reading or writing. Instead, blind prisoners must generally rely on other prisoners for assistance, putting them at risk of exploitation. Blind prisoners have no access to literacy programs because Defendants have refused to provide competent instruction in Braille.
194. NDCS Defendants do not provide blind prisoners with any mobility or orientation training to allow them to navigate NDCS facilities independently. Nor do they consistently provide blind prisoners with auxiliary aids and services, like white canes, that would afford them some independence.
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195. NDCS Defendants have failed to provide blind prisoners with the necessary auxiliary aids and services and reasonable modifications that would allow them to read and write mail privately and independently. Instead, blind prisoners are forced to rely on sighted prisoners to use the mail services, putting them at risk of exploitation, particularly due to the personal and confidential nature of personal and legal mail.
196. NDCS Defendants place prisoners with psychiatric disabilities in isolation in violation of the ADA. Prisoners with psychiatric disabilities whom NDCS Defendants have placed in isolation include a prisoner with schizophrenia at LCC who has been in isolation for more than 20 years, a prisoner with bipolar disorder at LCC who has been in isolation for more than 3 years, and a prisoner with autism at TSCI who has been in and out of isolation during his time in NDCS.
197. Prisoners with disabilities who do not receive needed accommodations are susceptible to exploitation and abuse by other prisoners. For example, in exchange for help getting to the toilet, shower, or meals, or communicating with prison staff, prisoners with disabilities may be required to pay other prisoners. Instead of receiving assistance from prison staff, prisoners with mobility impairments have had to rely on other prisoners to help them perform intimate functions, which further exposes the disabled prisoner to risk of exploitation, including sexual coercion.
198. NDCS Defendants also fail to provide appropriate accessible transportation to prisoners with mobility disabilities, including sufficient vans with ramps and securements to safely transport wheelchair users.
199. Prisoners with disabilities are also discriminated against by Defendants BOP and MICEK (“BOP Defendants”) in the context of parole. The Nebraska Legislature has affirmed the
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importance of parole as a program for the supervised release of prisoners making the transition from confinement to responsible citizenship. The Legislature has stated its intent that committed prisoners who are eligible for parole have the opportunity to complete the final stages of their sentences on parole. All committed prisoners are eligible for parole when the prisoner has served one half of the minimum term of his or her sentence as provided in Nebraska Revised Statutes §§ 83-1, 107 and 83-1, 108. BOP Defendants are informed on a regular basis of all committed prisoners who are expected to become eligible for release on parole within the next three months and are required to hold a parole review of such eligible prisoners not later than sixty days prior to the date a prisoner becomes eligible for parole.
200. BOP is governed by Nebraska Board of Parole Rules (“BOP Rules”) adopted and promulgated in accordance with Nebraska Revised Statutes §§ 81-1848, 81-1850, and 83-188 through 83-1, 127.01. BOP Defendants’ duties include, but are not limited to, (a) reviewing the record of every committed prisoner to determine whether parole is warranted; (b) determining the time of release on parole of committed prisoners eligible for release; (c) implementing the utilization of a validated risk and needs assessment in coordination with NDCS; (d) fixing the conditions of parole; (e) keeping records of BOP’s actions and notifying the Director of NDCS of BOP’s decisions; and (f) recommending prisoner authorization for furlough or work release privileges pursuant to Neb. Rev. Stat. § 83-184.
201. BOP Rules contain no processes, policies, or procedures for providing reasonable modifications or auxiliary aids or services to prisoners with disabilities, and contain no processes, policies, or procedures for prisoners with disabilities to request such modifications and aids or services.
202. BOP Defendants conduct regular reviews of prisoners’ parole eligibility. Pursuant
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to BOP Rules, a review that takes place within twelve months prior to a prisoner’s parole eligibility date or any review that occurs after a prisoner’s parole eligibility date is known as a “Key Review.” At Key Reviews, BOP personnel conducting the review are to advise the prisoner of specific tasks, action steps, and recommendations that will give the prisoner his or her best chance of being granted parole. Such tasks and steps include, but are not limited to, completion of department programming, final risk and needs assessments, behavioral and reentry planning requirements, and maintaining a clean disciplinary record.
203. BOP Defendants have no process, policy, or practice in place for providing reasonable modifications, auxiliary aids or services, or otherwise ensuring effective communication with prisoners with disabilities at Key Reviews. Thus, prisoners with disabilities are disproportionately burdened because they are put at increased risk of failing to understand and comply with the information given at Key Reviews.
204. Because prisoners with disabilities are routinely denied reasonable modifications and auxiliary aids and services to allow them to access programming required for parole, they are disproportionately burdened on account of their disabilities in the parole process. In other words, they risk being denied parole solely because of their disabilities. BOP Defendants are aware that such reasonable modifications and auxiliary aids and services are routinely not made available to prisoners with disabilities.
205. Additionally, reasonable modifications and auxiliary aids and services are routinely not provided to prisoners with disabilities within the context of NDCS’s disciplinary processes. This failure disproportionately burdens prisoners on account of their disabilities, putting them at an increased risk of being denied parole on the basis of their disciplinary record. BOP Defendants are aware that such reasonable modifications and auxiliary aids and services are
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routinely not made available to prisoners with disabilities. 206. Pursuant to BOP Rules, prisoners must be interviewed and have their records
reviewed by two or more members of the BOP within sixty days before the expiration of their minimum terms (“Prisoner Interview”). The information discussed at such reviews includes, but is not limited to, the prisoner’s conduct, employment, and attitude during incarceration, and reports of the prisoner’s physical and mental health examinations. If the review indicates the prisoner is reasonably likely to be granted parole, BOP must schedule a Parole Hearing where the prisoner may present evidence and be represented by counsel.
207. BOP Defendants have no process, policy, or practice in place for providing reasonable modifications, auxiliary aids or services, or otherwise ensuring effective communication with prisoners with disabilities at Prisoner Interviews, disproportionately burdening them due to their disabilities by putting them at increased risk of being denied parole due to a failure to understand and comply with the information given at Prisoner Interviews.
208. BOP Defendants have no process, policy, or practice in place for providing reasonable modifications, auxiliary aids or services, or otherwise ensuring effective communication with prisoners with disabilities at Parole Hearings, placing them at disproportionate risk of being denied parole due to a failure to understand and comply with the information given at Parole Hearings and an inability to effectively present evidence.
209. Factors considered by BOP at Parole Hearings include, but are not limited to, the prisoner’s: (a) personality, including any apparent development in his or her personality which may promote or hinder his or her conformity to the law; (b) intelligence; (c) employment history; (d) mental or physical makeup including any disability or handicap which may affect his or her conformity to the law; (e) conduct in the facility; and (f) behavior and attitude. These factors
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discriminate on the basis of disability both explicitly and implicitly. 210. The factors used by BOP also discriminate on the basis of disability because they
function as eligibility criteria which tend to screen out prisoners with disabilities on the basis of the prisoner’s “personality,” “intelligence,” “conduct,” and “behavior.” They further disproportionately screen out prisoners with disabilities on the basis of their past employment history because people with disabilities are more likely to be unemployed or underemployed.
211. Prisoners may waive the opportunity to participate in the Prisoner Interview and Parole Hearing by submitting a waiver form. BOP Defendants have no process, policy, or practice for providing reasonable modifications, auxiliary aids or services, or otherwise ensuring effective communication in explaining the consequences of such a waiver to prisoners with disabilities. As such, prisoners with disabilities are disproportionately burdened due to their disabilities because they are more likely to waive participation due to a failure to understand the waiver form or the consequences of such a waiver.
212. Prisoners denied parole may make a request for rehearing; however, BOP Defendants have no process in place for providing reasonable modifications, auxiliary aids or services, or for effectively communicating to prisoners with disabilities the procedures for requesting a rehearing. As such, prisoners with disabilities are at a disproportionate risk of failing to request a rehearing.
213. Due to the actions and omissions of BOP Defendants, prisoners with disabilities are disproportionately likely to be denied parole due to their disabilities. As a result, prisoners with disabilities are more likely to remain incarcerated longer than their non-disabled peers due solely to their disabilities. The actions and omissions of BOP Defendants not only discriminate on the basis of disability, but also significantly contribute to the overcrowding and unsafe
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conditions in NDCS facilities. VI. CLASS ACTION ALLEGATIONS
A. The NDCS Class 214. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b), Plaintiffs
SABATA, CARDEILHAC, CURTRIGHT, GALLE, GRISWOLD, GUNTHER, NORRIS, R.P., REEVES, RENA, and SWEETSER (collectively, the “NDCS Class Plaintiffs”) bring this action on behalf of themselves and a class of all persons who are now, or will in the future be, subjected to the health care (including medical, mental health, and dental care) policies and practices of NDCS (hereinafter, the “NDCS Class”).
1. Fed. R. Civ. P.23(a)(1): Impracticability of Joinder 215. The NDCS Class is so numerous that joinder of all class members is impracticable. NDCS confines approximately 5,200 prisoners, all of whom are subject to the health care policies and practices of NDCS. All NDCS prisoners are at risk of developing serious medical, mental health, or dental conditions while confined, and there are hundreds if not thousands of prisoners at any given time who already have such conditions. As a result of Defendants’ policies and practices, all NDCS prisoners receive or are at risk of receiving inadequate health care while in NDCS facilities. In addition, the class is fluid, as new prisoners enter NDCS and others are released on a daily basis. 216. NDCS Class members are identifiable using records maintained in the ordinary course of business by the NDCS. 2. Fed. R. Civ. P.23(a)(2): Commonality 217. There are multiple questions of law and fact common to the entire NDCS Class, including:
a) Whether Defendants’ failure to operate a system that provides minimally
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adequate health care, including medical, dental, and mental health care, poses a substantial risk of serious harm.
b) Whether Defendants have been deliberately indifferent to the serious health care needs, including medical, dental, and mental health care needs, of class members, and to the risk posed by their failure to maintain an adequate health care system.
c) Whether the extreme level of overcrowding in NDCS facilities interferes with the provision of adequate health care. 218. Defendants are expected to raise common defenses to these claims, including denying that their actions violated the law. 3. Fed. R. Civ. P.23(a)(3): Typicality 219. The claims of the NDCS Class Plaintiffs are typical of those of the NDCS Class, as their claims arise from the same policies, practices, and courses of conduct, and their claims are based on the same theory of law as the Class claims. 4. Fed. R. Civ. P.23(a)(4): Adequacy of Representation 220. Each of the NDCS Class Plaintiffs will fairly and adequately represent the interests of the NDCS Class and will diligently serve as a class representative. Their interests are co-extensive with those of the NDCS Class, and they have retained counsel experienced in class action litigation and in litigation involving the rights of prisoners. Putative Class Counsel possess the experience and resources necessary to fairly and adequately represent the Class. 5. Fed. R. Civ. P.23(b) 221. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(1) because the number of class members is approximately 5,200, and the prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, which in
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turn would establish incompatible standards of conduct for Defendants. Additionally, the prosecution of separate actions by individuals could result in adjudications with respect to individual class members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
222. This action is also maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(2) because Defendants’ policies, practices, actions, and omissions that form the basis of the claims of the NDCS Class are common to and apply generally to all members of the Class. All statewide health care policies are centrally promulgated, disseminated, and enforced from NDCS central headquarters by Defendants. The injunctive and declaratory relief sought is appropriate and will apply as a whole to all members of the NDCS Class. B. The Isolation Subclass
223. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b), Plaintiffs SABATA, CARDEILHAC, GALLE, GUNTHER, GRISWOLD, NORRIS, R.P., REEVES, AND RENA (collectively, the “Isolation Subclass Plaintiffs”) bring this action on behalf of themselves and a subclass of all NDCS prisoners who are now, or will in the future be, subject to isolation (“Isolation Subclass”). “Isolation” is defined as confinement in a cell for 22 or more hours per day.
1. Fed. R. Civ. P.23(a)(1): Impracticability of Joinder 224. The Isolation Subclass is so numerous that joinder of all Subclass members is impracticable. There are hundreds of prisoners who have been, are, or will be in isolation at an NDCS facility. During a six-week period in 2014, approximately 950 of the state’s 5,100 prisoners (18.6%) were in some form of isolation. The proposed subclass also includes prisoners who will be subject to isolation in the future. Therefore, the Isolation Subclass is so numerous that joinder of all Subclass members is impracticable.
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225. The Subclass members are identifiable using methods of assessment and/or records maintained in the ordinary course of business by the NDCS.
2. Fed. R. Civ. P.23(a)(2): Commonality 226. There are questions of law and fact common to the entire Isolation Subclass, including but not limited to:
a) Whether Defendants’ policy and practice of not providing a housing environment free of debilitating isolation and inhumane conditions to prisoners subjected to isolation poses a substantial risk of serious harm;
b) Whether Defendants have been deliberately indifferent to the Isolation Subclass members’ risk of injury and harm from the debilitating isolation and inhumane conditions to which they are subjected.
c) Whether the extreme overcrowding in NDCS facilities contributes to the misuse and abuse of isolation. 227. Defendants are expected to raise common defenses to these claims, including denying that their actions violated the law. 3. Fed. R. Civ. P.23(a)(3): Typicality 228. The claims of the Isolation Subclass Plaintiffs are typical of those of the Isolation Subclass, as their claims arise from the same policies, practices, and courses of conduct, and their claims are based on the same theory of law as the Subclass claims. 4. Fed. R. Civ. P.23(a)(4): Adequacy of Representation 229. Each of the Isolation Subclass Plaintiffs will fairly and adequately represent the interests of the Isolation Subclass and will diligently serve as a class representative. Their interests are co-extensive with those of the Isolation Subclass, and they have retained counsel experienced in complex class action litigation and prisoners’ rights litigation. Putative Class
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Counsel possess the experience and resources necessary to fairly and adequately represent the Isolation Subclass.
5. Fed. R. Civ. P.23(b) 230. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(1) because the Isolation Subclass includes hundreds of persons at any given time, and the prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, which in turn would establish incompatible standards of conduct for Defendants. Additionally, the prosecution of separate actions by individuals could result in adjudications with respect to individual class members that, as a practical matter, would substantially impair the ability of other members to protect their interests. 231. This action is also maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(2) because Defendants’ policies, practices, actions, and omissions that form the basis of the claims of the Isolation Subclass are common to and apply generally to all members of the subclass. All statewide isolation policies are centrally promulgated, disseminated, and enforced from NDCS central headquarters by Defendants. The injunctive and declaratory relief sought is appropriate and will apply as a whole to all members of the Isolation Subclass. C. The Disability Subclass 232. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b), Plaintiffs SABATA, CARDEILHAC, CURTRIGHT, GALLE, GRISWOLD, GUNTHER, NORRIS, R.P., REEVES, and SWEETSER (collectively, the “Disability Subclass Plaintiffs”) bring this action on behalf of themselves and a subclass of all persons with disabilities who are now or will be in the future confined at any NDCS facility (“Disability Subclass”). 1. Fed. R. Civ. P.23(a)(1): Impracticability of Joinder 233. The Disability Subclass is so numerous that joinder of all class members is
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impracticable. The exact number of members of the Disability Subclass is unknown. However, according to data from the 2011-2015 American Community Survey 5-Year Estimates conducted by the United States Census, of the total civilian noninstitutionalized population, more than 202,000 Nebraskans have a disability, which is approximately 11% of the state’s population. Assuming an identical rate of disability among the Nebraska prison population of 5,200, there are approximately 575 persons with disabilities in NDCS facilities at any given time. In addition, the Disability Subclass is fluid, as new prisoners enter NDCS and others are released.
234. The Disability Subclass members are identifiable using methods of assessment and/or records maintained in the ordinary course of business by NDCS Defendants.
2. Fed. R. Civ. P.23(a)(2): Commonality 235. There are questions of law and fact common to the entire Disability Subclass, including but not limited to:
a) Whether Defendants’ policies and practices discriminate against prisoners with disabilities on account of their disabilities;
b) Whether Defendants’ policies and practices deny prisoners with disabilities the benefits of the services, programs, or activities of a public entity;
c) Whether Defendants’ failure to reasonably accommodate prisoners with disabilities violates the Americans with Disabilities Act;
d) Whether Defendants’ failure to reasonably accommodate prisoners with disabilities violates section 504 of the Rehabilitation Act;
e) Whether the extreme level of overcrowding in the NDCS system interferes with the accommodation of prisoners with disabilities. 236. Defendants are expected to raise common defenses to these claims, including denying that their actions violated the law.
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3. Fed. R. Civ. P.23(a)(3): Typicality 237. The claims of the Disability Subclass Plaintiffs are typical of those of the Disability Subclass, as their claims arise from the same policies, practices, and courses of conduct, and their claims are based on the same theory of law as the Subclass claims. 4. Fed. R. Civ. P.23(a)(4): Adequacy of Representation 238. Each of the Disability Subclass Plaintiffs will fairly and adequately represent the interests of the Disability Subclass and will diligently serve as a class representative. Their interests are co-extensive with those of the Disability Subclass, and they have retained counsel experienced in complex class action litigation, disability law, and prisoners’ rights litigation. Putative Class Counsel possess the experience and resources necessary to fairly and adequately represent the Disability Subclass. 5. Fed. R. Civ. P.23(b) 239. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(1) because the Disability Subclass includes hundreds of persons at any given time, and the prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, which in turn would establish incompatible standards of conduct for Defendants. Additionally, the prosecution of separate actions by individuals could result in adjudications with respect to individual class members that, as a practical matter, would substantially impair the ability of other members to protect their interests. 240. This action is also maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(2) because Defendants’ policies, practices, actions, and omissions that form the basis of the claims of the Disability Subclass are common to and apply generally to all members of the subclass. All statewide policies regarding the treatment of prisoners with disabilities are centrally promulgated, disseminated, and enforced from NDCS and BOP central headquarters by
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Defendants. The injunctive and declaratory relief sought is appropriate and will apply as a whole to all members of the Disability Subclass.
VII. CLAIMS FOR RELIEF First Cause of Action
(ALL PLAINTIFFS v. DEFENDANTS FRAKES and DEOL) (42 U.S.C. § 1983; Eighth Amendment)
241. By their policies and practices described herein, Defendants FRAKES and DEOL subject all Plaintiffs and the NDCS Class to a substantial risk of serious harm from inadequate health care, including medical, mental health, and dental care. These policies and practices have been, and continue to be, implemented by Defendants FRAKES and DEOL and their agents, officials, employees, and all persons acting in concert with them under color of state law, in their official capacities, and are the proximate cause of the Plaintiffs’ and the NDCS Class’ ongoing deprivation of rights secured by the United States Constitution under the Eighth Amendment.
242. Defendants FRAKES and DEOL have been and are aware of all of the deprivations complained of herein, and have condoned or been deliberately indifferent to such conduct.
Second Cause of Action (ISOLATION SUBCLASS v. DEFENDANTS NDCS, FRAKES and DEOL) (42 U.S.C. § 1983; Eighth Amendment; Americans with Disabilities Act; Rehabilitation Act) 243. By their policies and practices described herein, Defendants NDCS, FRAKES, and DEOL subject the Isolation Subclass to a substantial risk of serious harm from conditions in isolation, including but not limited to inadequate physical exercise, inadequate nutrition, inadequate mental health treatment, excessive use of five-point restraints, and conditions of extreme social isolation and environmental deprivation. These policies and practices have been and continue to be implemented by Defendants NDCS, FRAKES, and DEOL and their agents, officials, employees, and all persons acting in concert with them under color of state law, in their
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official capacities, and are the proximate cause of the Plaintiffs’ and the Isolation Subclass’ ongoing deprivation of rights secured by the United States Constitution under the Eighth Amendment, the ADA, and the Rehabilitation Act.
244. Defendants FRAKES and DEOL have been and are aware of all of the deprivations complained of herein, and have condoned or been deliberately indifferent to such conduct.
Third Cause of Action (DISABILITY SUBCLASS v. ALL DEFENDANTS) (Americans with Disabilities Act, 42 U.S.C. § 12132) 245. The ADA prohibits public entities from denying “a qualified individual with a disability…the benefits of the services, programs, or activities of [the] public entity” because of the individual’s disability. 42 U.S.C. § 12132. The term “public entity” is defined in the ADA to include “any State or local government” and “any department agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1); 28 C.F.R. § 35.104. NDCS and BOP are “public entities” for purposes of the ADA. 246. NDCS Defendants are legally responsible for all violations of the ADA committed by NDCS staff and contractors who provide programs, services, or activities, including but not limited to medical, mental health, and dental care services, to prisoners within NDCS facilities. See 28 C.F.R. § 35.130(b)(1). 247. The BOP Defendants are legally responsible for all violations of the ADA committed by BOP staff and/or contractors who provide programs, services, or activities, including but not limited to parole-related services, to prisoners within NDCS facilities. See 28 C.F.R. § 35.130(b)(1). 248. Disability Subclass Plaintiffs and the Disability Subclass have disabilities that substantially limit major life activities. Disability Subclass Plaintiffs and members of the
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Disability Subclass are qualified—with or without reasonable modifications—to participate in the programs, services, and activities offered by NDCS and BOP. Thus, members of the Disability Subclass are, and Plaintiffs represent, qualified individuals with disabilities within the meaning of 42 U.S.C. §§ 12102, 12131, and 28 C.F.R. §35.104.
249. The programs, services, and activities that NDCS Defendants provide to prisoners include, but are not limited to, sleeping, eating, showering, toileting, communicating with those outside the prison by mail and telephone, exercising, entertainment, safety and security, the prison’s administrative, disciplinary, and classification proceedings, medical, mental health, and dental services, the library, educational, vocational, substance abuse, and anger management classes, and discharge services. NDCS’ programs, services, and activities are covered by the ADA.
250. The programs, services, and activities that BOP Defendants provide to prisoners include, but are not limited to, Prisoner Interviews, Key Reviews, Parole Hearings, and rehearings. BOP’s programs, services, and activities are covered by the ADA.
251. Under the ADA, NDCS and BOP must provide prisoners with disabilities reasonable modifications, removal of architectural, communication, or transportation barriers, and appropriate auxiliary aids and services so that they can avail themselves of and participate in all programs and activities offered by the NDCS and BOP Defendants.
252. Congress directed the United States Department of Justice (“DOJ”) to write regulations implementing the ADA’s prohibition against discrimination. 42 U.S.C. § 12134. Pursuant to this mandate, the DOJ has issued regulations defining the forms of discrimination prohibited by Title II of the ADA. 28 C.F.R. § 35.101 et seq. These regulations include regulations specific to adult detention and correctional facilities. 28 C.F.R. § 35.152.
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253. NDCS and BOP Defendants have violated the rights of Disability Subclass Plaintiffs and members of the Disability Subclass secured by Title II of the ADA and its implementing regulations.
254. NDCS and BOP Defendants have failed to inform the Disability Subclass about their rights under the ADA while detained in NDCS facilities, as required under 28 C.F.R. § 35.106. A public entity must “administer services, programs, and activities in the most integrated setting appropriate to” an individual’s needs and is therefore prohibited from unnecessarily segregating or isolating the individual. 28 U.S.C. § 35.130(d). Public entities responsible for the operation or management of adult detention and correctional facilities “shall ensure that [prisoners] or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals. Unless it is appropriate to make an exception, a public entity—(i) Shall not place [prisoners] or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available; (ii) Shall not place [prisoners] or detainees with disabilities in designated medical areas unless they are actually receiving medical care or treatment; (iii) Shall not place [prisoners] or detainees with disabilities in facilities that do not offer the same programs as the facilities where they would otherwise be housed; and (iv) Shall not deprive [prisoners] or detainees with disabilities of visitation with family members by placing them in distant facilities where they would not otherwise be housed.” 28 C.F.R. § 35.152(b)(2). Furthermore, a public entity may not “deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.” 28 C.F.R. § 35.130(b)(2).
255. When NDCS Defendants house individuals with disabilities in isolation due to
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their disabilities, they deny Plaintiffs and the Disability Subclass the opportunity to participate in services, programs, or activities that are in the most integrated setting appropriate to their needs and that are not separate or different from those offered to their nondisabled peers. A public entity may not (1) “impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary[,]” 28 C.F.R. § 35.130(b)(8); or (2) “utilize criteria or methods of administration . . . that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability . . . or the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities[.]” 28 C.F.R. §35.130(b)(3)(i)(ii). Public entities responsible for the operation or management of adult detention and correctional facilities “shall ensure that qualified [prisoners] or detainees with disabilities shall not, because a facility is inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of, the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.” 28 C.F.R. § 35.152(b)(1). Defendants must “operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities” and must “implement reasonable policies, including physical modifications to additional cells in accordance with the 2010 [accessibility] Standards, so as to ensure that each [prisoner] with a disability is housed in a cell with the accessible elements necessary to afford the [prisoner] access to safe, appropriate housing,” 28 C.F.R. § 35.150(a); 28 C.F.R. § 35.152(b)(3).
256. NDCS Defendants have violated the ADA by denying persons with disabilities
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access to programs, services, or activities due to the presence of physical barriers at NDCS facilities and by housing prisoners with disabilities in inaccessible housing.
257. NDCS Defendants have imposed eligibility criteria and methods of administration that screen out persons with disabilities and subject them to discrimination by housing prisoners with disabilities in isolation due to their disability and failing to remedy physical barriers that deny persons with disabilities full and equal enjoyment of programs, services, and activities offered at NDCS facilities. NDCS Defendants have not shown that such criteria are necessary for the provision of the service, program, or activity being offered or that such requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities, as required by 28 C.F.R. § 35.130(h).
258. The criteria used by BOP Defendants in determining whether to grant parole screens out, or tends to screen out, individuals with disabilities on the basis of disability in violation of 28 C.F.R. § 35.130(b)(8). BOP Defendants have not shown that such criteria are necessary for the provision of the service, program, or activity being offered or that such requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities as required by 28 C.F.R. § 35.130(h).
259. In providing any aid, benefit, or service, a public entity “may not . . . [d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service,” “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,” “[p]rovide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity . . . as that provided to others,” “[o]therwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity
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enjoyed by others,” or “provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others.” 28 C.F.R. § 35.130(b)(1)(i)-(iv).
260. A public entity “shall make reasonable modifications in policies, practices, or procedure when the modifications are necessary to avoid discrimination on the basis of disability[.]” 28 C.F.R. § 35.130(b)(7). Reasonable modifications that NDCS Defendants and BOP Defendants are required to make include but are not limited to: (1) implementing an identification/tracking system for reasonable modifications in NDCS facilities; (2) modifying assistive device policies so that such devices will be provided and not removed when deemed needed in all areas of NDCS; (3) providing staff training to ensure that reasonable modifications for individuals are implemented; and (4) making the grievance system effective for prisoners with disabilities including by adding a method for grievances to be marked as disability-related. BOP Defendants have no process in place for allowing a prisoner with disabilities to request or receive auxiliary aids and reasonable modifications to access BOP programs, services, and activities, including Prisoner Interviews, Key Reviews, and parole hearings, including any appeals, as required by the ADA.
261. Defendants’ failure to modify their policies and practices disproportionately burdens the Disability Subclass by reason of their disabilities. But for the fact that members of the Disability Subclass have disabilities, they would not require these reasonable modifications which they are being denied by Defendants.
262. The regulations implementing Title II of the ADA also require public entities to prepare and implement a Self-Evaluation and Transition Plan to evaluate and improve the
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accessibility of their facilities as required by 28 C.F.R. § 35.150. BOP Defendants and NDCS Defendants have failed to prepare and implement an adequate and complete Self-Evaluation and have similarly failed to prepare an adequate and complete Transition Plan. A self-evaluation was initiated in 1994, but it was not completed, and it has not been updated to encompass new NDCS facilities and programs.
263. Public entities are also required to take appropriate steps to ensure that communications with persons with disabilities are as effective as communications with others, including furnishing appropriate auxiliary aids and services where necessary to ensure an equal opportunity to participate in and enjoy the benefits of a service, program, or activity. 28 C.F.R. § 35.160. NDCS and BOP Defendants fail to provide appropriate auxiliary aids and services including videophones, ASL interpreters, Braille, or other accessible formats to ensure effective communications with individuals with disabilities.
264. Upon information and belief, NDCS facilities have been altered in a manner that affects their usability since January 26, 1992, and the altered portions of the facilities are not readily accessible to and usable by individuals with disabilities in violation of 28 U.S.C. § 35.151(b)(1). Pursuant to 28 U.S.C. §35.151(c)(1), physical alterations that commence after July 26, 1992 must comply with the DOJ’s Standards for Accessible Design published on July 26, 1991 and republished as Appendix D to 28 CFR Part 36 (“1991 Standards”) or with the Uniform Federal Accessibility Standards (“UFAS”). Portions of NDCS Facilities, including but not limited to the Nebraska Correctional Center for Women and the Omaha Correctional Center, have been altered post-1992. In particular, large sections of the NCCW were altered in 2004 and 2009, and an additional housing unit was added to the OCC in 1994.
265. Upon information and belief, areas of NDCS facilities have been constructed after
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July 26, 1992 and are not in compliance with the 1991 Standards or UFAS. Pursuant to 28 U.S.C. § 35.151(4), an “alteration that affects the usability of or access to an area of a facility that contains a primary function shall be made accessible so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs …” A “primary function” is a major activity for which the facility is intended. 28 U.S.C. § 35.151(b)(4)(i).
266. Upon information and belief, NDCS Defendants have altered the usability of areas that contain primary functions but have failed to make the path of travel to such areas readily accessible to individuals with disabilities, including individuals who use wheelchairs, in violation of 28 U.S.C. § 35.151(4).
267. With respect to medical and long-term care facilities in jails, prisons, and other detention and correctional facilities, public entities are required to apply the 2010 Standards technical and scoping requirements for those facilities, irrespective of whether those facilities are licensed, for alterations and construction occurring after the applicable dates. 28 U.S.C. § 35.151(k)(3). Upon information and belief, NDCS Defendants and BOP Defendants fail to apply these standards.
Fourth Cause of Action (DISABILITY SUBCLASS v. ALL DEFENDANTS)
(Rehabilitation Act, 29 U.S.C. § 794) 268. Section 504 provides, in pertinent part that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance[.]” 29 U.S.C. § 794(a). 269. All Defendants were, at all times relevant to this action, and are currently
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recipients of federal financial assistance within the meaning of the Rehabilitation Act and provide a program or activity including all the operations of the recipient which includes all programs and activities offered by NDCS and BOP. 29 U.S.C. § 794(a).
270. Disability Subclass Plaintiffs and the Disability Subclass they represent are qualified individuals with disabilities as defined in the Rehabilitation Act as they all have impairments that substantially limit a major life activity, and they were or are all residents of NDCS facilities qualified—with or without reasonable accommodation—to participate in the programs, services, and activities offered by NDCS and BOP. 29 U.S.C. § 705(20)(B); 28 C.F.R. § 41.32.
271. Defendants have violated the rights of Plaintiffs and members of the Disability Subclass secured by Section 504 and its implementing regulations.
272. The DOJ is charged under Executive Order 12250 with coordinating the implementation of Section 504 of the Rehabilitation Act of 1973. 28 C.F.R. § 41.1. In providing any aid, benefit, or service, a recipient of federal financial assistance “may not . . . [d]eny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit or service,” “[a]fford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,” “[p]rovide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity . . . as that provided to others,” “[o]therwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others,” or “provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those
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provided to others.” 45 C.F.R. § 84.4(b)(i)(iv), (vii). 273. A public entity also may not “deny a qualified individual with a disability the
opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.” 45 C.F.R. § 84.4(b)(3). By housing Disability Subclass Plaintiffs and members of the Disability Subclass in more restrictive housing, Defendants exclude them from participating in and deny them the benefits of Defendants’ education and rehabilitative programs, services, and activities solely by reason of their disabilities.
274. Defendants also deny prisoners with mobility disabilities access to programs and activities due to the physical inaccessibility of NDCS facilities, including housing prisoners with disabilities in inaccessible cells and without access to accessible showers and by holding programs and classes in inaccessible spaces.
275. Defendants fail to make reasonable modification to their policies, practices, and procedures even though such modifications are necessary to avoid discriminating against Disability Subclass Plaintiffs and members of the Disability Subclass by, inter alia, not identifying and tracking prisoners with disabilities who require reasonable accommodations, failing to provide an effective accessible grievance procedure, failing to provide effective communication and auxiliary aids, and failing to provide other reasonable modifications to policies and practices to avoid discrimination on the basis of disability. BOP Defendants have no process in place for allowing prisoners with disabilities to request or receive auxiliary aids and services and reasonable modifications of BOP programs, services, and activities, as required by 29 U.S.C. § 794(a). Specifically, BOP Defendants have failed to provide any process for requesting and/or receiving reasonable modifications in its practices and policies regarding
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notification of parole eligibility and in the conduct of the parole hearings themselves, thereby subjecting people with disabilities to a greater likelihood of being denied parole solely by reason of their disabilities.
276. A recipient of federal financial assistance may not “utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap” and/or “(ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons . . .” 45 C.F.R. § 84.4(b)(4)(i), (ii). BOP Defendants, in determining whether to grant parole, use criteria that subject individuals with disabilities to discrimination solely on the basis of disability in violation of 45 C.F.R. § 84.4(b)(4). By their policy and practice of discriminating against and failing to reasonably accommodate prisoners with disabilities, all Defendants violate Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and disproportionately burden the Disability Subclass by reason of their disabilities.
VIII. PRAYER FOR RELIEF 277. Plaintiffs and the class and subclasses they represent have no adequate remedy at law to redress the wrongs suffered as set forth in this complaint. Plaintiffs and the class and subclasses they represent have suffered and will continue to suffer irreparable injury as a result of the unlawful acts, omissions, policies, and practices of Defendants, as alleged herein, unless Plaintiffs and the class and subclasses they represent are granted the relief they request. The need for relief is critical because the rights at issue are paramount under the United States Constitution and the laws of the United States. 278. WHEREFORE, Plaintiffs and the class and subclasses they represent request that this Court grant them the following relief:
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A. Declare that the suit is maintainable as a class action pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(1) and (2);
B. Adjudge and declare that the acts, omissions, policies, and practices of Defendants, and their agents, employees, officials, and all persons acting in concert with them under color of state law or otherwise, as described herein, are in violation of the rights of Plaintiffs and the class and subclasses they represent under the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act;
C. Preliminarily and permanently enjoin Defendants, their agents, employees, officials, and all persons acting in concert with them under color of state law, from subjecting Plaintiffs and the class and subclasses they represent to the illegal and unconstitutional conditions, acts, omissions, policies, and practices set forth above;
D. Order Defendants and their agents, employees, officials, and all persons acting in concert with them under color of state law, to develop and implement, as soon as practical, a plan to eliminate the substantial risk of serious harm suffered by Plaintiffs and the class and subclasses they represent as a result of Defendants’ policies and practices set forth herein. Defendants’ plan shall include, at a minimum, the following:
a) Population: Policies and procedures for population management so that the number of prisoners is kept at a level that can be safely managed.
b) Staffing: Policies and procedures to increase the numbers of trained correctional staff to ensure the safety and security of the prisoner population.
c) Classification and Housing: Policies and procedures to classify and house prisoners to ensure their safety and security.
d) Screening: Policies and procedures that reliably screen for medical, dental,
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and mental health conditions that require treatment. e) Health Care Access: Policies and procedures that provide prisoners with
timely access to health care. f) Health Care Staffing: Policies and procedures to provide prisoners with
timely access to sufficient numbers of qualified and competent clinicians who can provide routine, urgent, emergency, and specialty health care.
g) Emergency Response: Policies and procedures for timely and competent responses to health care emergencies.
h) Medication and Supplies: Policies and procedures for timely, secure, and accurate prescription and distribution of medications and supplies necessary for medically adequate care.
i) Chronic Care: Policies and procedures for timely access to competent care for chronic diseases.
j) Mental Health Treatment: Policies and procedures for: timely access to necessary treatment by qualified staff for serious mental health needs, including medication, therapy, inpatient treatment, suicide prevention, and suicide watch; access to hospitalization and inpatient care; prohibitions or limitations on the use of seclusion and restraints; disciplinary policies and practices regarding persons with psychiatric disabilities that appropriately consider their disabilities; and training of corrections and health care staff to recognize and treat prisoners’ psychiatric disabilities.
k) Environmental Conditions: Policies and procedures to improve basic sanitary conditions that do not promote the spread or exacerbation of diseases or infections, including but not limited to reducing overcrowded conditions at NDCS
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facilities. l) Quality Assurance: Policies and procedures for a regular assessment of
health care staff, services, procedures, and activities designed to improve outcomes, and to identify and correct errors or systemic deficiencies.
m) Isolation: Policies and procedures prohibiting confinement of Plaintiffs and the Isolation Subclass under conditions of social isolation and sensory deprivation that put prisoners at substantial risk of serious physical and mental harm.
n) Health Insurance Portability and Accountability Act of 1996 (HIPAA) Compliance: Policies and practices to bring NDCS facilities into HIPAA compliance in relation to patient information, medical records, and medical treatment.
o) Accommodation for Prisoners with Disabilities: Policies and practices to ensure that members of the Disability Subclass are not denied the benefits of, or participation in, programs, services, and activities offered by NDCS and BOP; that prisoners with disabilities are timely identified, tracked, and assessed; have their disabilities accommodated; are provided with an effective grievance procedure; are provided with all needed assistive devices and other accommodations; and receive effective communication in all settings, including but not limited to health care, classification, discipline, and parole proceedings. 279. Order Defendants to make all programs and services accessible and available to prisoners with disabilities as required by the ADA and Rehabilitation Act. 280. Enter a prisoner release order pursuant to 18 U.S.C. § 3626(a)(3). 281. Award Plaintiffs the costs of this suit, and reasonable attorneys’ fees and litigation expenses, pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12205, 29 U.S.C. § 794, and other
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applicable law. 282. Retain jurisdiction of this case until Defendants have fully complied with the
orders of this Court, and there is a reasonable assurance that Defendants will continue to comply in the future absent continuing jurisdiction.
283. Appoint the undersigned counsel as class counsel pursuant to Federal Rule of Civil Procedure 23(g).
284. Award such other and further relief as the Court deems just and proper. RESPECTFULLY SUBMITTED, this 16th day of August, 2017.
By: David Fathi (Wash. Bar No. 24893)* Pro Hac Vice Admission Application Pending NATIONAL PRISON PROJECT of the AMERICAN CIVIL LIBERTIES UNION 915 15th Street N.W., 7th Floor Washington, D.C. 20005-2302 Telephone: (202) 548-6603 Facsimile: (202) 393-4931 Email: dfathi@aclu.org *Not admitted in DC; practice limited to federal courts
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By: Michael W. Bien (Cal. Bar No. 096891) Kara Janssen (Cal. Bar No. 274762) Pro Hac Vice Admission Applications Pending ROSEN BIEN GALVAN & GRUNFELD LLP 50 Fremont Street, 19th Floor San Francisco, California 94105-2235 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 Email: mbien@rbgg.com
By: Christopher M. Young (Cal. Bar No. 163319) Pro Hac Vice Admission Application Pending DLA Piper LLP (US) 401 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 699-4748 Facsimile: (619) 764-6748 Email: christopher.young@dlapiper.com
Dawn M. Jenkins (Tex. Bar No. 24074484) Pro Hac Vice Admission Application Pending DLA Piper LLP (US) 1000 Louisiana Street, Suite 2800 Houston, TX 77002 Telephone: (713) 425-8454 Facsimile: (713) 300-6054 Email: dawn.jenkins@dlapiper.com
Jennifer Eldridge (Il. Bar No. 6323859) Pro Hac Vice Admission Application Pending DLA Piper LLP (US) 444 West Lake Street, Suite 900 Chicago, IL 60606 Telephone: (312) 368-3914 Facsimile: (312) 251-5815 Email: jennifer.eldridge@dlapiper.com
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By: Amy A. Miller #21050 ACLU OF NEBRASKA 134 S. 13th Street, Suite 1010 Lincoln, Nebraska 68508 Telephone: (402) 476-8091 ext. 106 Facsimile: (402) 476-8135 Email: amiller@aclunebraska.org
By: Robert E. McEwen #24817 Kenneth M. Smith #25552 NEBRASKA APPLESEED CENTER FOR LAW IN THE PUBLIC INTEREST 941 O Street, Suite 920 Lincoln, Nebraska 68508 Telephone: (402) 438-8853 Facsimile: (402) 438-0263 Email: rmcewen@neappleseed.org
By: Debra Patkin (MD # 1012160018) Pro Hac Vice Admission Application Pending NATIONAL ASSOCIATION OF THE DEAF 8630 Fenton Street, Suite 820 Silver Spring, Maryland 20910 Telephone: (301) 587-1788 Facsimile: (301) 587-1791 Email: debra.patkin@nad.org
ATTORNEYS FOR PLAINTIFFS
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HANNAH SABATA; DYLAN CARDEILHAC; JAMES CURTRIGHT; JASON GALLE; RICHARD GRISWOLD; MICHAEL GUNTHER; ANGELIC NORRIS; R.P., a minor; ISAAC REEVES; ZOE RENA; and BRANDON SWEETSER, on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES; SCOTT R. FRAKES, in his Official Capacity as Director of the Nebraska Department of Correctional Services; HARBANS DEOL, in his Official Capacity as Director of Health Services of the Nebraska Department of Correctional Services; NEBRASKA BOARD OF PAROLE; JULIE MICEK, in her Official Capacity as the Board of Parole Acting Parole Administrator; and DOES 1 to 20, inclusive,
Defendants.

8:17CV3107
MEMORANDUM AND ORDER

This matter is before the Court on the joint partial Motion to Dismiss (Filing No. 34) for failure to state a claim and lack of subject-matter jurisdiction filed by Nebraska Department of Correctional Services (“NDCS”); Scott R. Frakes, in his official capacity as Director of the NDCS (“Frakes”); Harbans Deol, in his official capacity as Director of Health Services of the NDCS (“Deol”); Nebraska Board of Parole (“BOP”); and Julie Micek, in her official capacity as the BOP acting Parole Administrator’s (“Micek” and collectively, “defendants”). See Fed R. Civ. P. 12(b). For the reasons stated below, the

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Motion is granted in part and denied in part, and the 42 U.S.C. § 1983 claims are dismissed against the NDCS and the BOP.
I. BACKGROUND Plaintiffs Hannah Sabata (“Sabata”), Dylan Cardeilhac (“Cardeilhac”), James
Curtright (“Curtright”), Jason Galle (“Galle”), Richard Griswold (“Griswold”), Michael Gunther (“Gunther”), Angelic Norris (“Norris”), R.P. (a minor), Isaac Reeves (“Reeves”), Zoe Rena (“Rena”),1 and Brandon Sweetser (“Sweetser” and collectively, “plaintiffs”) are incarcerated2 in Nebraska’s prison system. All of the plaintiffs except for Rena are alleged to be disabled under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12181 et seq.
On August 15, 2017, the plaintiffs filed the present action and proposed class action in which they allege the defendants have violated their civil and constitutional rights. The plaintiffs assert four claims and divide themselves into various classes and subclasses. The “NDCS Class” consists of all the defendants. The “Isolation Subclass” consists of all the defendants but Curtright, Gunther, and Sweetser. The “Disability Subclass” consists of all the defendants but Rena.
The first claim alleges that Frakes and Deol subject the NDCS class to a substantial risk of serious harm from inadequate health care in violation of § 1983 and the Eighth Amendment of the United States Constitution. The second claim alleges that the NDCS, Frakes, and Deol subject the Isolation Subclass to a substantial risk of serious harm from conditions in isolation in violation of § 1983, the Eighth Amendment, the ADA, and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. 701 et seq.
1Rena was incarcerated under the name Cassie Zoubek but has since legally changed her name.
2Sabata was incarcerated at the time of filing but has since been granted parole. The defendants, claiming mootness, have separately moved to dismiss her claims (Filing No. 49). That Motion is not addressed in this Memorandum and Order.
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The third claim alleges that all the defendants deny the Disability Subclass the benefits of services, programs, or activities in violation of the ADA. The fourth claim alleges that all the defendants exclude the Disability Subclass from programs, services, and activities in violation of the Rehabilitation Act.
On November 6, 2017, the defendants filed a partial Motion to Dismiss (Filing No. 34). The defendants claimed (1) the plaintiffs lacked standing to pursue any claim against the BOP and Micek (collectively, “BOP Defendants”), (2) any claims against the BOP Defendants were not ripe, and (3) the plaintiffs’ § 1983 claims against the NDCS and BOP are barred by the State of Nebraska’s sovereign immunity as recognized under the Eleventh Amendment to the United States Constitution.
II. DISCUSSION Although their motion professes to encompass both failure to state a claim and
lack of subject-matter jurisdiction, the defendants make no argument that the plaintiffs have failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). The defendants’ arguments, all categorized as dealing with subject-matter jurisdiction, are that the plaintiffs’ claims are barred by the doctrines of (1) standing, (2) ripeness, and (3) state sovereign immunity. The defendants’ first two arguments ask for the dismissal of the BOP Defendants as parties. The defendants’ third argument asks for the dismissal of any § 1983 claims against the BOP and the NDCS.
A. Standing Article III of the United States Constitution requires any party presenting a claim before a federal court to have standing. Spokeo, Inc. v. Robins, 578 U.S. ___, ___, 136 S. Ct. 1540, 1547 (2016). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. The defendants first argue the plaintiffs have failed to affirmatively establish they are parole eligible, and, therefore, no injury could be fairly traceable to the conduct of the BOP Defendants. Second, the defendants
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claim that, even if the plaintiffs are parole eligible, the plaintiffs have failed to substantively allege any concrete injury resulting from the actions of the BOP Defendants.
1. The Parole Process A prisoner is “eligible for parole when the offender has served one-half the minimum term of his or her sentence.” Neb. Rev. Stat. § 83-1,110. The Nebraska parole process consists of four steps: (1) initial and ongoing prisoner reviews, (2) Key reviews, (3) prisoner interviews, and (4) parole hearings. The BOP must perform the initial review within one year of incarceration, and the frequency of the ongoing reviews is determined by the sentence length. Neb. Rev. Stat. § 83-192(1)(f). The reviews include “the circumstances of the offense, the presentence investigation report, the committed offender’s previous social history and criminal record, his or her conduct, employment, and attitude during commitment, and the reports of such physical and mental examinations as have been made.” Id. During the review, the BOP must also “meet with such committed offender and counsel him or her concerning his or her progress and prospects for future parole.” Id.
Any review that takes place within twelve months of a parole-eligibility date or after the eligibility date is known as a Key review. Neb. Parole Bd. R. § 4-201. In a Key review, the BOP must “advise the prisoner of specific tasks, action steps and recommendations that will give the [prisoner] his or her best chance at being granted parole” such as “completion of department programming, final risk and needs assessments, behavioral and reentry planning requirements, and maintaining a clean department discipline record.” Id.
At least two members of the BOP or a person designated by the BOP must perform a prisoner interview within sixty days before the prisoner’s parole-eligibility date. Id. § 4-202(A). If the reviewers decide “the offender is reasonably likely to be granted parole,” the BOP must schedule a parole hearing “set no sooner than 45 days
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from the time of review.” Id. §§ 4-202(B), 4-301(A). At the hearing, the prisoner “may present evidence, call witnesses, and be represented by counsel.” Id. § 4-301(B). The BOP must then make a decision regarding release within a reasonable time. Id. § 4301(D).
2. Allegations of Parole Eligibility The defendants argue that the plaintiffs are required to plead facts affirmatively establishing that the defendants were parole eligible at the time of filing. In Peck v. Battey, the Eighth Circuit seemed to suggest an individual might lack standing to challenge parole policy when he was not eligible for parole at the time of filing. 721 F.2d 1157, 1159 (8th Cir. 1983). However, in a supplemental affidavit, the prisoner in Peck had shown he had later become eligible for parole but his parole was denied, and the circuit court concluded that “entitl[ed] [him] to his day in court.” Id. Another district court in this circuit has interpreted Peck to mean that a prisoner whose initial parole date has not yet come lacks standing to challenge a parole board. Horse v. Young, No. 4:14CV-04137, 2016 WL 901256, at *6 (D. S.D. March 3, 2016) (citing Peck, 721 F.2d at 1159).3
In the Complaint, each plaintiff is identified as “serving a sentence that allows for parole eligibility pursuant to Neb. Rev. Stat. § 83-1,110. [Each plaintiff] intends to request a parole hearing once eligible to do so[.]”4 While it is true that every prisoner except for those serving life terms are automatically eligible for parole after serving half of their sentence, there is nothing in the Complaint about the length of the plaintiffs’
3It is possible this case is distinguishable from both Peck and Horse. In those cases, it did not appear the parole process began until the prisoner reached his or her parole date. Under Nebraska’s system, the parole process begins before the parole date, and the prisoner can interact with BOP officials to increase the probability of parole before the hearing.
4The first sentence is not completely accurate. Curtright, Griswold, and Gunther are all serving sentences of life to life. In Nebraska, any offender serving a life sentence is “ineligible for parole consideration until the sentence is commuted.” Adams v. State Bd. of Parole, 879 N.W.2d 18, 25 (Neb. 2016).
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prison terms or the amount of time they have already served. However, the plaintiffs have since filed an Index (Filing No. 42) of evidence. The index of evidence contains specific information drawn from the public record about each prisoner’s sentence. This evidence indicates four plaintiffs are currently past their parole-eligibility date. In addition, all of the plaintiffs, except for those three serving life sentences, have served at least one year and have begun the parole process by having their initial prisoner review. Because at least four of the plaintiffs are eligible for parole, and all but three have begun the process, at least some plaintiffs are subject to the BOP rules and can adequately allege damages attributable to the BOP Defendants.
3. Allegations of Concrete Injury The basis of the plaintiffs’ claimed injuries is that (1) the BOP evaluates prisoners at parole hearings using improper factors that disproportionately screen out prisoners with disabilities, and (2) the BOP does not promulgate any processes, policies, or procedures for providing reasonable modifications or auxiliary aids or services to prisoners with disabilities. Allegedly, this use of improper factors and lack of clear policy disproportionately burdens prisoners with disabilities in violation of the ADA. The plaintiffs do not allege the BOP Defendants have denied them accommodations for any of their disabilities, nor do they claim to have even requested any accommodations from the BOP Defendants.
Neither of the parties’ respective briefs address the issue of whether the use of improper factors during parole determination constitutes a concrete injury. The defendants argue the ADA does not require the prophylactic publication of policies governing the provision of reasonable modifications, so long as the reasonable modifications are actually provided when requested.
Among the criteria used by the BOP to evaluate prisoners are personality; intelligence; employment history; mental or physical makeup, including disability or handicap; conduct in the facility; and behavior and attitude. Neb. Parole Bd. R. § 4-
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401(A). The plaintiffs claim that these criteria disproportionately screen out prisoners with disabilities. Being denied parole due to criteria that improperly discriminate against those with disabilities would be an actual injury. Although no plaintiff has specifically stated that he or she has been denied parole due solely to the application of a supposedly illicit factor, they have alleged at least some of the defendants have already had a parole hearing where improper criteria were used, and those defendants were denied parole.5 Cf. Ne. Fla. Chapter of Associated Gen. Contracts of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (“When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing.”), Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (finding standing when an individual alleged a university “had denied him the opportunity to compete for admission on an equal basis”).
The plaintiffs have presented sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, at least some of the plaintiffs have standing to challenge the BOP rules as violations of the ADA, and the Court will not dismiss the BOP Defendants.6
Because at least some of plaintiffs have standing to litigate claims against the BOP Defendants due to their use of the challenged parole criteria, it is unnecessary to reach the issue of whether the BOP’s non-promulgation of policies for reasonable accommodations would also constitute an actual injury.
5It is possible that these rules do not actually violate the ADA, but that analysis is premature when analyzing standing issues.
6Whether each named plaintiff has standing to bring each claim is not at issue; the current question is whether the Court should dismiss the BOP Defendants because no plaintiff can bring a claim against them.
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B. Ripeness “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” KCCP Tr. v. City of N. Kansas City, 432 F.3d 897, 899 (8th Cir. 2005) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). However, as mentioned earlier, the claim that the BOP uses discriminatory criteria does not rest upon contingent future events because the BOP is currently using the criteria in parole hearings, and the BOP has denied parole to some of the plaintiffs following their hearings. The plaintiffs’ claim that the BOP uses improper criteria in deciding parole is ripe for adjudication.
C. Immunity The defendants claim the NDCS and BOP, as state agencies, are immune under the Eleventh Amendment to suits under 42 U.S.C. § 1983. Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007). The plaintiffs have agreed to dismiss their § 1983 claims against the NDCS but are silent as to their § 1983 claims against the BOP. As the BOP is also a state agency, the same logic applies to it as to the NDCS. Thus, plaintiffs’ § 1983 claims are dismissed as to the NDCS and BOP and will only continue as to the named state officials Frakes, Deol, and Micek.
III. CONCLUSION Based upon the allegations of the Complaint as supplemented by the Index (Filing
No. 42) of evidence, at least some plaintiffs have standing to bring claims against the BOP Defendants because the BOP has already used the allegedly discriminatory criteria in parole hearings involving some of the plaintiffs, and some of those plaintiffs have been denied parole. Because those plaintiffs have been denied parole, their claims are ripe for adjudication. The BOP Defendants will not be dismissed as parties. Any § 1983 claims against the BOP and NDCS are barred by the Eleventh Amendment and are dismissed. Accordingly,
IT IS ORDERED:
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1. Defendants’ Motion to Dismiss (Filing No. 34) for failure to state a claim and lack of subject-matter jurisdiction is denied in part and granted in part.
2. The BOP Defendants are not dismissed as parties. 3. All § 1983 claims against the BOP and NDCS are dismissed with prejudice. Dated this 16th day of January, 2018.
BY THE COURT: Robert F. Rossiter, Jr. United States District Judge
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 4:17-cv-03107-RFR-MDN Doc # 250 Filed: 02/19/19 Page 1 of 53 - Page ID # 14842

UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et al.,

Case No. 4:17-cv-03107-RFR-MDN

Plaintiffs,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al.,

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CLASS CERTIFICATION

Defendants.

TABLE OF CONTENTS

Page

INTRODUCTION ...........................................................................................................................1
STATEMENT OF FACTS ..............................................................................................................4
I. The Nebraska Correctional System is Centrally Controlled and Operated by NDCS ...................................................................................................................................4
A. The Nebraska Correctional System is One of the Most Overcrowded Correctional Systems in the Country and is Facing a Significant Staffing Crisis ........................................................................................................................5
B. NDCS Defendants Exercise Complete Control Over the Constitutionally Deficient Health Care Provided to NDCS Prisoners ...............................................7
1. Medical Care ................................................................................................8
2. Dental Care ................................................................................................11
3. Mental Health Care ....................................................................................14
C. NDCS Defendants Exercise Complete Control Over the Use of Isolation............16
D. NDCS Defendants Exercise Complete Control Over Disability-Related Accommodations and Fail to Identify, Track, or Have Any System in Place to Provide Reasonable Modifications to Prisoners with Disabilities ...........21
II. Defendant BOP Operates a Centralized System For Administering Parole Reviews and Hearings and Has Abdicated Its Responsibilities to Provide Disability-Related Accommodations .................................................................................26
ARGUMENT .................................................................................................................................27
I. The Governing Legal Standards for Plaintiffs’ Claims .....................................................27
II. Legal Standard for Class Certification...............................................................................29
III. Plaintiffs, the Proposed Class, and Proposed Subclasses Satisfy the Requirements

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of Rule 23(a) ......................................................................................................................30 A. The Proposed NDCS Class and Subclasses Are Sufficiently Numerous ..............30 B. The Commonality Requirement of Rule 23(a)(2) is Satisfied Because the
Claims of the Class and Subclasses Present Common Issues of Fact and Law That Are Capable of Common Resolution ....................................................32 C. The Typicality Requirement of Rule 23(a)(3) is Satisfied Because the Named Plaintiffs Have Claims Sufficiently Typical of the Class and Subclasses They Seek to Represent .......................................................................37 D. The Proposed Class Representatives and Class Counsel Will Fairly and Adequately Represent the Interests of the Class and Subclasses...........................39 1. Proposed Class Representatives.................................................................40 2. Plaintiffs’ Counsel Meet the Requirements of Rule 23(g) and
Should Be Appointed Class Counsel .........................................................40 IV. Plaintiffs and the Proposed Class and Subclasses meet the Requirements of Rule
23(b)(1) and (b)(2) .............................................................................................................42 A. Certification Is Appropriate Under Rule 23(b)(1) .................................................42 B. Certification Is Appropriate Under Rule 23(b)(2) .................................................44 CONCLUSION ..............................................................................................................................45

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TABLE OF AUTHORITIES

Page

CASES
Alpern v. UtiliCorp United, Inc., 84 F.3d 1525 (8th Cir. 1996) ............................................................................................ 38
Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997).......................................................................................................... 40
Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455 (2013).......................................................................................................... 29
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) ................................................................................ 32, 33, 37
Ashker v. Governor of State of California, 2014 WL 2465191 (N.D. Cal. June 2, 2014) .................................................................... 42
Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023 (8th Cir. 2010) .......................................................................................... 44
Baby Neal for and by Kanter v. Casey, 43 F.3d 48 (3rd Cir. 1994) ................................................................................................ 44
Beckmann v. CBS, Inc., 192 F.R.D. 608 (D. Minn. 2000)................................................................................. 33, 39
Berry v. Baca, 226 F.R.D. 398 (C.D. Cal. 2005) ...................................................................................... 43
Bradley v. Harrelson, 151 F.R.D. 422 (M.D. Ala. 1993) ..................................................................................... 44
Braggs v. Dunn, 317 F.R.D. 634 (M.D. Ala. 2016) ..................................................................................... 33
Brown v. Plata, 563 U.S. 493 (2011)...................................................................................................... 6, 28
Caroline C. ex rel. Carter v. Johnson, 174 F.R.D. 452 (D. Neb. 1996)......................................................................................... 30
Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal.1995)................................................................................... 43
Cotton v. Douglas Cty. Dep’t of Corr., No. 8:16-cv-153, 2016 WL 5816993 (D. Neb. Oct. 5, 2016) ........................................... 29
DeBoer v. Mellon Mortg. Co., 64 F.3d 1171 (8th Cir. 1995) ............................................................................................ 38

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Dockery v. Fischer, 253 F. Supp. 3d 832 (S.D. Miss. 2015), petition for appeal pursuant to Rule 23(f) denied, No. 15-90110, slip op. (5th Cir. Nov. 2, 2015) .............................................. 30, 31
Donaldson v. Pillsbury Co., 554 F.2d 825 (8th Cir. 1977) ............................................................................................ 38
E.E.O.C. v. UPS Supply Chain Sols., 620 F.3d 1103 (9th Cir. 2010) .......................................................................................... 24
Ebert v. General Mills, Inc., 823 F.3d 472 (8th Cir. 2016) ............................................................................................ 33
Farmer v. Brennan, 511 U.S. 825 (1994).......................................................................................................... 28
Franklin v. Barry, 909 F. Supp. 21 (D.D.C. 1995) ......................................................................................... 43
Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) ........................................................................................ 28
Helling v. McKinney, 509 U.S. 25 (1993)............................................................................................................ 28
Hernandez v. Cty. of Monterey, 305 F.R.D. 132 (N.D. Cal. 2015)...................................................................................... 40
Hilton v. Wright, 235 F.R.D. 40 (N.D.N.Y. 2006)........................................................................................ 43
In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604 (8th Cir. 2011) ............................................................................................ 29
Ingles v. City of New York, 2003 WL 402565 (S.D.N.Y. Feb. 20, 2003)..................................................................... 43
New Directions Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007).............................................................................................. 40
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).......................................................................................................... 36
Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) ...................................................................................... 32, 34
Paxton v. Union Nat. Bank, 688 F.2d 552 (8th Cir. 1982) ............................................................................................ 38
Peebles v. Potter, 354 F.3d 761 (8th Cir. 2004) ............................................................................................ 29
Postawko v. Missouri Dep't of Corr., 910 F.3d 1030, 1037 (8th Cir. 2018) ......................... passim

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Postawko v. Missouri Dep't of Corr., No. 2:16-CV-04219-NKL, 2017 WL 3185155 (W.D. Mo. July 26, 2017), aff'd, 910 F.3d 1030 (8th Cir. 2018) .................................................................................... 28, 33
Randolph v. Rodgers, 170 F.3d 850 (8th Cir. 1999) ............................................................................................ 28
Riley v. Nevada Supreme Court, 763 F. Supp. 446 (D. Nev. 1991) ...................................................................................... 43
Sandusky Wellness Ctr., LLC v. Medtox Scientific, Inc., 821 F.3d 992 (8th Cir. 2016) ............................................................................................ 32
Unknown Parties v. Johnson, 163 F. Supp. 3d 630 (D. Ariz. 2016) ................................................................................ 33
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).............................................................................................. 32, 33, 37
Yates v. Collier, 868 F.3d 354 (5th Cir. 2017) ............................................................................................ 33
STATUTES 42 U.S.C. § 12132................................................................................................................... 28, 36 Fed. R. Civ. P. 23 ................................................................................................................... passim Neb. Rev. Stat. § 83-170 ................................................................................................... 17, 18, 31 Neb. Rev. Stat. § 83-171 ....................................................................................................... 4, 7, 34 Neb. Rev. Stat. § 83-173 ....................................................................................................... 4, 7, 34 Neb. Rev. Stat. § 83-176 ................................................................................................................. 4 Neb. Rev. Stat. § 83-179 ................................................................................................................. 9 Neb. Rev. Stat. § 83-181 ....................................................................................................... 4, 7, 34
REGULATIONS 28 C.F.R. § 35.130(b)(7)............................................................................................................... 37 28 C.F.R. § 35.152(b)(1)............................................................................................................... 36 28 C.F.R. § 35.152(b)(2)-(3)......................................................................................................... 37 28 C.F.R., Pt. 35, App. A .............................................................................................................. 36

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OTHER AUTHORITIES 1 H. Newberg & A. Conte, Newberg on Class Actions § 4.34 (5th ed. 2016 update) .................. 45
§ 4:11 (5th ed.) .................................................................................................................. 42 William Rubenstein, Newberg on Class Actions § 3:12 (5th ed. June 2018 Update)................... 30 Wright & Miller, 7AA Fed. Prac. & Proc. Civ. § 1776.1 (3d ed. 2017 update) ........................... 45

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INTRODUCTION This case arises from systemic deficiencies in Defendants’ policies, procedures and practices, the effects of which are significantly worsened by severe overcrowding and staffing shortages across all facilities operated by the Nebraska Department of Correctional Services (NDCS). As a result of these systemic failures, Nebraska state prisons are in a state of perpetual crisis that endangers the health, safety, and lives of prisoners and staff alike on a daily basis. Prisoners are consistently deprived of constitutionally adequate medical, dental, and mental health care, and are denied meaningful access to programs, services, and activities due to their disabilities. Prisoners, including those with serious mental illnesses, suffer in conditions of extreme isolation for months and even years at a time. These deficiencies have been extensively and publicly documented—yet Defendants have been, and continue to be, deliberately indifferent to these systemic failures and the inhumane conditions at their facilities. The policies and procedures at issue affect all prisoners held in NDCS facilities and Defendants’ continued deliberate indifference puts all prisoners at substantial risk of serious harm in violation of the Eighth Amendment to the United States Constitution. Furthermore, Defendants’ systemic failure to have even minimal policies and procedures in place to ensure prisoners with disabilities have meaningful access to NDCS services, programs, and activities, as well as to the parole process administered by the Board of Parole (BOP), violates federal disability anti-discrimination laws. This case seeks only injunctive and declaratory relief and presents the kinds of systemic legal and factual issues for which class certification was intended. Prisons are unique facilities because every aspect of a prisoner’s daily life is heavily and centrally controlled across facilities including: intake; medical, dental, and mental health care; placement in isolation; conditions in isolation units; housing of prisoners, including in accessible cells; movement of prisoners
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between services and programs including access to outside yards, recreation, and exercise facilities, and rehabilitative and vocational programs; access to assistive devices, auxiliary aids including sign language interpreters, and other reasonable accommodations for prisoners with disabilities; grievance and request processes; and the parole process. Unlike in the outside world, prisoners cannot access any of these services independently and must rely on the prison system to plan for and provide essential services such as health care, safe living conditions, and disability-related accommodations.
There is no dispute that Defendants control the provision of these services through centralized policies and procedures that are applicable to all NDCS prisons. These policies and procedures include Administrative Regulations, Medical Protocols and Nursing Protocols promulgated by NDCS, and rules promulgated by BOP.
Plaintiffs seek certification of the following class and subclasses: (1) an NDCS Class composed of all persons who are now, or will in the future be, subjected to the health care (including medical, mental health and dental care) policies and practices of NDCS (all named plaintiffs); (2) an Isolation Subclass composed of all NDCS prisoners who are now, or will in the future be, subjected to conditions of confinement that provide limited contact with other prisoners, strictly controlled movement while out of cell, and out-ofcell time of less than twenty-four hours per week (named plaintiffs Sabata, Cardeilhac, Galle, Gunther, Griswold, Norris, R.P.,1 Reeves, and Rena); and, (3) a Disability Subclass composed of all persons with disabilities who are now, or will in the future be, confined at any NDCS facility (named plaintiffs Sabata, Cardeilhac, Curtright, Galle, Griswold, Gunther, Norris, R.P., Reeves, and Sweetser). Plaintiffs meet the standard for class certification. Numerosity is met because the proposed NDCS class consists of over 5,000 current prisoners and untold numbers of future prisoners. The proposed Isolation and Disability subclasses similarly consist of hundreds of
1 R.P. has been released from NDCS custody but the Court has not yet ruled upon Defendants’ Suggestion of Mootness and Motion to Dismiss Claims of Named Plaintiff R.P., Filing No. 204.
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current prisoners and untold numbers of future prisoners. Commonality is met because Plaintiffs challenge the legality of Defendants’ systemwide policies and practices, which raise common questions capable of common answers through the systemwide injunctive relief Plaintiffs seek. Typicality is met because the named Plaintiffs are all subject to the same deficient policies, procedures and practices as the class members. The named Plaintiffs and class counsel will fairly and adequately protect the interests of the proposed class and subclasses. Lastly, class certification is warranted (1) because the prosecution of separate actions by individual prisoners would (a) create a risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for Defendants and (b) would be dispositive of the interests of other prisoners or would substantially impair or impede their ability to protect their interests; and (2) because Defendants have acted, and refused to act, on grounds that apply generally to the class such that final injunctive and declaratory relief is appropriate as to the class as a whole.
This case is not about the care provided to any specific prisoner and Plaintiffs do not seek relief for individual prisoners. Rather, this case is about whether the conditions in Nebraska’s state prisons create a substantial risk of serious harm to all NDCS prisoners in violation of the Eighth Amendment, and whether NDCS and BOP have systemically failed to provide prisoners with disabilities meaningful access to NDCS and BOP programs, services, and activities by failing to put into place systems to consistently provide such access. To address such common, systemic issues through thousands of individual prisoner lawsuits would be grossly inefficient and unnecessary when the injunctive and declaratory relief requested in this matter would resolve these issues on behalf of all prisoners.
Because the named Plaintiffs, the NDCS Class, the Isolation and Disability Subclasses, and Plaintiffs’ counsel satisfy all requirements of Federal Rule of Civil Procedure 23(a), (b)(1), (b)(2), and (g)(1) and (4), class certification should be granted.
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STATEMENT OF FACTS I. The Nebraska Correctional System is Centrally Controlled and Operated by NDCS
The NDCS Defendants are responsible for all aspects of operation of all NDCS facilities, including the medical care, dental care, mental health care, and disability-related needs of the approximately 5,358 prisoners held in NDCS facilities. Filing 249-75 (NDCS Quarterly Data Sheet October-December 2018); Neb. Rev. Stat. §§ 83-171 (NDCS duties include maintaining and administering facilities, and developing policies and programs for persons committed to NDCS); 83-173(3), (6) (NDCS Director shall “establish and administer policies and programs for the operation of the facilities in the department and for the custody, control, safety, correction, and rehabilitation of persons committed to the department” and “adopt and promulgate rules and regulations for the management, correctional treatment, and rehabilitation of persons committed to the department, the administration of facilities, and the conduct of officers and employees under his or her jurisdiction”); 83-181 (each person committed to NDCS shall have regular medical and dental care).
NDCS governs its facilities2 through a system of centralized policies and procedures, referred to as Administrative Regulations (ARs), which are intended to “guide the operations of the Department” and “apply to all persons, Central Office, programs and institutions within the jurisdiction of NDCS.” Filing 249-77 (AR 001.01). While individual facilities may set their
2 The NDCS system consists of ten facilities. The Diagnostic and Evaluation Center (DEC) processes all male prisoners upon intake. The Nebraska Correctional Center for Women (NCCW) houses female prisoners and processes all females upon intake. The Nebraska Correctional Youth Facility (NCYF) houses male prisoners up to the age of 21 years and 10 months. The Community Corrections Centers in Lincoln and Omaha (CCC-L and CCC-O) house male and female prisoners who are eligible for work release. All other male prisoners are housed in one of the other five facilities: Lincoln Correctional Center (LCC), Omaha Correctional Center (OCC), Nebraska State Penitentiary (NSP), Tecumseh State Correctional Institution (TSCI), and Work Ethic Camp (WEC). NDCS may transfer prisoners from one facility to another at any time. Neb. Rev. Stat. § 83-176.
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own policies, referred to as Operational Memorandum (OMs), these OMs must “be consistent in scope and intent with their authorizing AR.” Id. “[A]ny change in the content of an AR shall produce a like change in corresponding OMs.” Id.
A. The Nebraska Correctional System is One of the Most Overcrowded Correctional Systems in the Country and is Facing a Significant Staffing Crisis
NDCS is one of the most overcrowded state prison systems in the country and, as of September 2018, was operating at approximately 158.75% of design capacity. Filing 249-75 (NDCS Quarterly Data Sheet October-December 2018); Filing 249-47 Declaration of Eldon Vail (Vail Decl.) ¶ 19. For the same time period, several facilities within NDCS were even worse, with CCC-O operating at 188.88% of design capacity, NSP operating at 187.46% of design capacity, and WEC operating at 173% of design capacity. Id. DEC and OCC are the most overcrowded facilities, with DEC operating at a staggering 336.25% of design capacity and OCC operating at 196.96% of design capacity. Id.; Filing 249-47, Vail Decl. ¶¶ 21-22. The severe overcrowding in NDCS facilities significantly exacerbates the harm caused by Defendants’ systemically deficient policies and procedures. Filing 249-47, Vail Decl. ¶¶ 16-17, 19-22, 27-38, 61-62, 71-73, 76-77, 87.
The overcrowding problem is also exacerbated by a significant staffing crisis, which is caused by high staff turnover and vacancies. Filing 249-91 (2017/2018 OIG Report) at 27; Filing 249-47, Vail Decl. ¶¶ 39-52, 56-60. NDCS previously testified to the legislature that turnover rates in excess of 15% “may indicate instability and create management difficulties.” Filing 249-91 (2017/2018 OIG Report) at 19-20. Yet, according to data released in the 2018 State Personnel Almanac, the turnover rate for NDCS was more than double that—30.8% for 2017. Id. at 20.
NDCS has had significant difficulty filling positions and, as of June 2018, had 294 vacant
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positions, including 29 vacant behavioral health clinical positions and 28 vacant Division of Health Services positions including 23 vacant nursing positions. Filing 249-91 (2017/2018 OIG Report) at 24; see also Filing 249-47, Vail Decl. ¶ 59 (noting that this high number of vacancies for funded NDCS positions “does not include the additional 138 protective services positions that the 2016 [NDCS] staffing analysis identified as necessary (or the additional 254 positions that the staffing analysis initially recommended)”). As detailed in a 2016 assessment of NDCS by the Vera Institute of Justice, “[u]nderstaffing and high turnover reduce the department’s ability to provide needed mental health services, heighten the risk of disruptions to treatment or failure to meet the needs of individuals, and add stress to staff that may have multiple competing responsibilities.” Filing 249-91 (2017/2018 OIG Report) at 28.
The combination of overcrowded conditions and lack of staff directly contributes to the overuse of isolation and systematically impairs Defendants’ ability to provide a constitutional level of health care. Filing 249-47 (Vail Decl.) ¶¶ 18, 61-62, 71-73, 76-77; Filing 249-42 Declaration of Craig Haney (Haney Decl.) ¶¶ 46-47; Filing 249-53 Declaration of Jay Shulman (Shulman Decl.) ¶¶ 8, 70-77; Filing 249-38 Declaration of Pablo Stewart (Stewart Decl.) ¶¶ 2430; Filing 249-58 Declaration of Marc Stern (Stern Decl.) ¶ 34. In 2011, the United States Supreme Court addressed comparable levels of overcrowding, including an intake facility operating at 300% capacity, in the California state prison system and found that “[o]vercrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve.” Brown v. Plata, 563 U.S. 493, 502 (2011) (finding that overcrowding in the California state prison system was the “primary cause of the violation of a Federal right…specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health
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care” and affirming relief ordered by the lower court, including a population limit). The overcrowded conditions and lack of staff also compound the overcrowding problem
because prisoners are unable to access and complete programming to assist them in reentering society and obtain parole due to extensive wait lists. Filing 249-47 (Vail Decl.) ¶¶ 53-56, 60. NDCS offers six programs3 which can be required to be considered for parole and, as of June 2018, there were 1,380 prisoners on waitlists for these programs, 147 of whom had passed their parole eligibility date but were still waiting to access required programming. Id. ¶ 54; Filing 249-76 (NDCS Quarterly Data Sheet April-June 2018). As a result, due to the lack of staffing resources for programs that are required to earn parole, prisoners in NDCS are staying in prison for longer than they would if sufficient staff were available to operate those programs. Filing 249-47 (Vail Decl.) ¶¶ 53-56, 60.
B. NDCS Defendants Exercise Complete Control Over the Constitutionally Deficient Health Care Provided to NDCS Prisoners
The NDCS Defendants exercise absolute control over the health care provided in NDCS facilities. Neb Rev. Stat §§ 83-171, 83-173, 83-181; Filing 249-82 (AR 115.01); Filing 249-58 (Stern Decl.) ¶ 17. Defendant Deol is NDCS’ medical director and oversees all aspects of health care, including medical, mental health, pharmacy, nursing, and dental. Filing 249-80, Transcript of 30(b)(6) Deposition of Harbans Deol (Deol Depo.) at 16:23-17:2. Defendant Deol is responsible for, among other things, (1) defining the scope of health care services; (2) developing mechanisms to assure that the scope of services is provided and properly monitored; (3) developing operational health policies and procedures; (4) identifying the type of health care
3 These programs include: (1) the Violence Reduction Program (VRP), (2) Anger Management, (3) Residential Substance Abuse, (4) Non-residential Substance Abuse, (5) Inpatient Sex Offender Program (iHelp), and (6) Outpatient Sex Offender Program (oHelp). Filing 249-93, Transcript of 30(b)(6) Deposition of Rosalyn Cotton (Cotton Depo.) at 124:3-12; Filing 249-76 (NDCS Quarterly Data Sheet April-June 2018).
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providers needed to provide the determined scope of services; (5) establishing systems for the coordination of care among multidisciplinary health care providers; (6) developing a quality management program; and (7) establishing measurable goals and objectives with internal reviews by designated health care professionals. Filing 249-82 (AR 115.01) at § VII. To the extent that prisoners receive medical, dental, and mental health care, they receive it pursuant to centralized systemwide policies, including ARs, Medical Protocols (MPs), and Nursing Protocols, promulgated by the NDCS Defendants. Filing 249-82 (AR 115.01); Filing 249-83 (AR 115.04); Filing 249-58 (Stern Decl.) ¶ 17.
1. Medical Care Medical care at NDCS is centrally governed by AR 115.01, which “establishes authority, responsibility, and procedures for health care services” and is “applicable to all institutions,” Filing 249-82 (AR 115.01), and by AR 115.04, which governs prisoners’ access to health care services and similarly “applies to all institutions,” Filing 249-83 (AR 115.04). The medical care NDCS provides is systemically deficient, resulting in a broken medical system that creates a substantial risk of serious harm for all NDCS prisoners. Filing 249-58 (Stern Decl.) ¶¶ 13, 17-20, 44, 46, 61, 70, 86, 89, 92, 95, 116, 117, 137, 145. These systemwide flaws include (1) dangerous staffing practices, that include allowing inmates to provide medical care for other inmates, and requiring licensed practical nurses to perform duties outside their qualifications; (2) delayed and flawed intake screenings; (3) problems with access to care; (4) fundamental flaws in medication administration; (5) insufficient medical records; and (6) deficient management (including a poor quality monitoring and system improvement; and poor leadership and oversight). Id. at ¶¶ 13-14. These practices put all prisoners at NDCS at a substantial risk of serious harm. Id. The problems are documented in detail by Plaintiffs’ expert
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Dr. Marc F. Stern,4 who toured NDCS institutions and reviewed numerous medical records. Dr.
Stern’s declaration, Filing 249-58, points to specific class members whose safety has been
jeopardized by the deficiencies described here.
NDCS facilities deploy medical staff in an ineffective and dangerous manner. NDCS
relies heavily upon Licensed Practical Nurses (LPNs), who according to their Nebraska licensure
may not independently assess or develop nursing care plans for patients, instead of Registered
Nurses (RNs), who are permitted to undertake those duties. LPNs within NDCS routinely make
clinical assessments that they are not qualified or certified to make regarding the health status
and care of prisoners. Id. ¶¶ 21-27. These policies and practices permeate nearly all aspects of
medical care at NDCS facilities, are out of step with the standard of care, and put prisoners at a
substantial risk of serious harm. Id. ¶ 21. By official policy, NDCS also relies on inmate porters
and corrections officers to provide aspects of health care and make medical judgments for which
they are not qualified. See, e.g., id. ¶¶ 28-30, 61-65.
The medical intake screening process is also critical to prisoner safety. NDCS’ flawed intake process exposes all incoming prisoners to a substantial risk of serious harm.5 Initial
medical screenings at NDCS are governed by AR 115.05, which “applies to all institutions.”
4 Dr. Stern is the former Assistant Secretary for Health Services of the Washington State Department of Corrections, and a former Regional Director for the New York State prison system. He has served as a consultant on correctional health care to the United States Department of Justice and to many local jurisdictions. He serves as the court-appointed expert on prison medical care in the class action Parsons v. Ryan, No. CV-12-00601 – PHX-ROS (D. Ariz). Filing 249-58 (Stern. Decl.) ¶¶ 2-3. 5 All prisoners go through an intake process that includes the same four steps: (1) an officer administers a health intake screening; (2) a nurse conducts an additional health screening; (3) a psychologist conducts a mental health screening; and (4) a medical practitioner, either a physician, nurse practitioner, or physician assistant, conducts a physical exam. Filing 249-80 (Deol Depo.) at 72:19-79:15. This same process applies to individuals who are readmitted after being released on parole for at least six months. Id. at 78:15-19; 79:16-18; See also Neb. Rev. Stat. § 83-179 (“Upon initial admission to a facility, each person committed to the department shall be given a physical examination and a thorough evaluation.”).
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Filing 249-84 (AR 115.05). NDCS fails to promptly conduct intake screenings to identify whether prisoners are healthy enough to be admitted and to begin any needed treatment. Filing 249-58 (Stern Decl.) ¶¶ 45-46. These screenings are vital, and failure to perform them within minutes to a very few hours after arrival at the facility is dangerous. Id. ¶¶ 36-37. However, NDCS policy allows up to 24 hours for completion of intake screening and Dr. Deol estimates that 10% of newly admitted prisoners are not even evaluated within 24 hours—a highly dangerous practice that puts the lives of prisoners significantly at risk. Id. ¶ 45. NDCS also fails, in policy and practice, to screen properly for tuberculosis, further putting prisoners at substantial risk of serious harm. Id. ¶¶ 41-44, 46.
There are also significant systemic problems with emergency care. Filing 249-58 (Stern Decl.) ¶¶ 49-58. Due to the problems with staff deployment at NDCS, there are frequently not enough medical professionals on site to respond to life-threatening medical emergencies. For example, at NSP there is only one medical professional, a nurse, on night duty 6 out of 7 nights per week. Id. ¶ 51. That nurse is always required to remain in the skilled nursing facility, and as a result, no medical professional is available 6 nights a week to respond to medical emergencies in the units. Id. Instead, prisoners must be transported by correctional staff to the skilled nursing facility, which can cause life-threatening delays in receipt of emergency medical care. Id. When medical professionals are actually available to respond to emergencies in the units, they routinely do not have the necessary equipment to allow them to properly do so. Id. ¶ 52. NDCS’ practice of treating LPNs and RNs interchangeably is particularly dangerous in emergency situations. Id. ¶ 54. LPNs who are forced to respond alone to an emergency will have no choice but to make independent medical decisions without assistance from RNs or practitioners. Id.
When attempting to access urgent and non-urgent care, prisoners also face significant obstacles that routinely put them at substantial risk of serious harm. Filing 249-58 (Stern Decl.)
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¶¶ 59-70; 71-86. Such systemic deficiencies include (1) the inability to get the attention of custody staff in order to request care, (2) failure of custody staff to properly notify medical staff of requests for care, (3) improper reliance on unqualified LPNs to triage complaints and conduct initial evaluations, (4) failure to conduct medical assessments in person, and (5) excessive delays before in-person visits. Id. All of these deficiencies put prisoners at substantial risk of serious harm, including deterioration of their medical conditions, which may be irreversible. Id. ¶¶ 70, 86.
All of the above-listed systemic deficiencies are further exacerbated by Defendants’ poor record keeping practices. NDCS medical records are incomplete, inaccurate, illegible, and kept in a highly disorganized fashion. Id. ¶¶ 117-123. The systemic failure to keep proper records significantly impairs medical professionals’ ability to assess patients’ history of symptoms, which precludes safe patient care for all prisoners at NDCS. Id.
2. Dental Care Dental care at NDCS is centrally overseen by Defendant Deol, who is responsible for dental administration, dental policies, and clinical responsibilities including supervision of all NDCS dentists.6 Filing 249-80 (Deol Depo.) at 18:10-20. The primary policy covering the provision of dental care at all NDCS facilities is MP 18, the stated purpose of which is to “establish and maintain uniform guidelines for Dental Services provided to patients incarcerated within NDCS.” Filing 249-81 (MP 18) at 1 (emphasis added); Filing 249-80 (Deol Depo.) at 40:20-41:11. Several systemic deficiencies are apparent on the face of this policy which, among other deficiencies, put prisoners at substantial risk of serious harm. Filing 249-53 (Shulman Decl.) ¶¶ 8, 78-102, 104, 141, 180, 191. These deficiencies are explained in detail, with specific
6 NDCS should have a Chief of Dentistry, but that position has been vacant for about two years. Filing 249-80 (Deol Depo.) at 18:16-19:18.
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patient examples, in the Declaration of Dr. Jay D. Shulman, Filing 249-53.7
First, the priority system used to provide dental care puts prisoners at substantial risk of
serious harm. Filing 249-53 (Shulman Decl.) ¶¶ 8, 78-102, 104, 141, 180, 191. MP 18 classifies
dental services as Priority I (emergency care),8 Priority II (urgent care),9 Priority III (routine
care),10 and Priority IV (partial or full denture construction or repair).11 Non-covered services
include (a) elective procedures, (b) orthodontics, fixed bridgework or cast crowns for cosmetic
purposes, (c) implants, (d) dentures for new prisoners that have not yet served 24 months or the
earliest parole or mandatory discharge release date is more than six months away,12 (e) extracting
asymptomatic third molars, and (f) periodontal diagnosis and treatment. Id. ¶ 78. Priority IV
care is not provided when there are staffing shortages. Id. ¶ 79; Filing 249-80 (Deol Depo.) at
42:19-43:11.
Also, prisoners who have been at NDCS for less than a year are ineligible for non-urgent
care (Priorities III and IV). Filing 249-53 (Shulman Decl.) ¶ 81. The effect of this policy is to
7 Dr. Shulman has served as a consultant on correctional dental services to numerous government entities and the United States Department of Justice. He has served as a court-appointed expert in several systemwide correctional dental cases, including Perez v. Tilton (California Department of Corrections and Rehabilitation), Fussell v. Wilkinson (Ohio state prison system), Lippert v. Baldwin (Illinois). Filing 249-53 (Shulman Decl.) ¶¶ 1-6. 8 “Incapacitating pain, facial swelling, oral-facial trauma, suspected serious pathological conditions, and profuse bleeding.” Filing 249-53 (Shulman Decl.) ¶ 78. 9 “Extraction of non-restorable, symptomatic teeth, placement of sedative restorations in grossly decayed teeth, pulpotomy or pulpectomy, prescription of medications as appropriate, and gross scaling and debridement of calculus.” Filing 249-53 (Shulman Decl.) ¶ 78. 10 “Routine non-acute care for conditions that are not of an urgent nature.” Filing 249-53 (Shulman Decl.) ¶ 78. 11 “Partial or full denture construction, repair or reline partial or full dentures. May be scheduled after all are met or as medically indicated. Prosthodontic care (dentures) is reserved for patients with NDCS length of stay greater than two (2) years and mandatory release date is no more than six (6) months.” Filing 249-53 (Shulman Decl.) ¶ 78. 12 Exceptions may be granted by the Chief of Dental Services or designee. Filing 249-53 (Shulman Decl.) ¶ 78.
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impose an arbitrary one-year ban for all prisoners from receiving treatment for dental disease until the conditions worsen to the extent they cause pain. Id. Moreover, prisoners released on parole and then re-incarcerated must satisfy the one-year restriction period all over again. Id.; Filing 249-80 (Deol Depo.) at 44:18-45:9. There is no clinical basis for this ban—which only serves to cause prisoners to experience unnecessary pain and deterioration of their dental health. Filing 249-53 (Shulman Decl.) ¶¶ 82, 84, 141. Defendant Deol stated that he believed the ban is inappropriate and admitted, on behalf of NDCS, that he did not know why it was imposed. Id. ¶ 82; Filing 249-80 (Deol Depo.) at 46:19-21 (“Q: And my question is: what is the purpose of that restriction? A: I’m not quite sure”) 48:7-10 (“Q: Have you ever expressed the [view] that this, either orally or in writing, that this restriction is inappropriate? A: To my dentists, yes.”).
Second, pursuant to MP 18, NDCS refuses to provide prisoners with any periodontal care, which is vital to preventing dental disease and decay. By considering periodontal care to be a non-covered service, the NDCS dental program has grossly deviated from the standard of care and subjects prisoners to a substantial risk of serious harm because prisoners have no choice but to wait until periodontal issues have worsened to the point of causing bone destruction and tooth loss before they can be seen. Filing 249-53 (Shulman Decl.) ¶¶ 89-98, 118-121. There is no clinical basis for this restriction, which causes prisoners to experience unnecessary pain and deterioration of their dental health. Id. Defendant Deol again admitted that this policy was inappropriate and was unaware of the purpose behind it. Id. ¶ 92; Filing 249-80 (Deol Depo.) at 53:16-54:22 (“Q: Have you ever expressed a view, either orally or in writing, that this restriction, the ineligibility for periodontal diagnosis and treatment, is inappropriate? A: Yes.”).
Third, NDCS’ MP 18 imposes a cruel and entirely unnecessary two-year waiting period before prisoners can receive dentures, which is re-imposed on prisoners that were released on parole and then re-incarcerated. Filing 249-53 (Shulman Decl.) ¶¶ 85-88; Filing 249-80 (Deol
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Depo.) at 48:21-49:5. There is no clinical justification for such a waiting period. Filing 249-53 (Shulman Decl.) ¶¶ 85-88. Although MP 18 purports to allow for a waiver of this waiting period, it fails to describe what the basis for a waiver could be, there is no indication that the waiver process is communicated to patients in writing or otherwise, and Defendants have never received, nor granted, any waiver requests. Id. ¶ 86; Filing 249-80 (Deol Depo.) at 50:23-52:6. Without dentures prisoners are put at substantial risk of serious harm and may be unable to eat and suffer gratuitous pain. Filing 249-53 (Shulman Decl.) ¶¶ 51, 180, 191.
Following the initial intake exam, NDCS provides no proactive dental care and prisoners must fill out a request in order to be seen. Filing 249-80 (Deol Depo.) at 39:22-40:8. When asked how a prisoner can know that they are developing dental problems before they reach the point of causing pain, Defendant Deol responded “they don’t.” Filing 249-80 (Deol Depo.) at 40:16-19; Filing 249-53 (Shulman Decl.) ¶ 95 (patients with undiagnosed periodontal disease due to Defendants’ policy prohibiting periodontal diagnosis will not be able to request care if they are not told they are affected). Finally, as with medical records as a whole, NDCS’ dental record keeping system is disorganized, records are incomplete and illegible, and NDCS lacks a system for tracking patients to ensure they receive needed care. Filing 249-53 (Shulman Decl.) ¶¶ 193-199.
3. Mental Health Care Mental health care at NDCS is dangerously haphazard and understaffed. The severity of the problems are evidenced by the fact that NDCS prisons have a suicide rate far above the national average, and NDCS’ own review of recent suicides has shown the harms of understaffing because the decedents’ mental health care was subject to numerous delays in spite of warning signs and requests for help. Filing 249-38 (Stewart Decl.) ¶¶ 24-25, 30, 80. The failures of the mental health system are addressed, with specific class member examples, in the
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Declaration of Pablo Stewart, MD,13 Filing 249-38. Mental health care at NDCS is centrally overseen by Defendant Deol, who directly supervises NDCS’ Director of Behavioral Health and is responsible for behavioral health and mental health coverage as well as certain aspects of programming. Filing 249-80 (Deol Depo.) at 17:5-10.
Mental health care services at NDCS are insufficient to meet the needs of the population, and put prisoners at substantial risk of serious harm stemming both from deficient policies and from a systemic failure to ensure implementation of mental health services across NDCS facilities. Filing 249-38 (Stewart Decl.) ¶¶ 24-25. NDCS’ policies and practices for identification and screening of prisoners upon arrival and after transfers are dangerously lacking because initial screenings are performed by custody staff with no medical qualifications whatsoever and incoming prisoners are routinely not screened by medical staff for weeks after their arrival. Id. ¶ 31. Systemic deficiencies include (a) a shortage of mental health staff, (b) structural deficiencies in the provision of mental health treatment, including a failure to implement a mental health array with distinct levels of care, and (c) inadequate provision of psychiatric medications, including using improper dosages and formulations and improperly prescribing anti-psychotic medications to prisoners with no diagnosis or symptoms of psychosis. Id. ¶¶ 24-30, 32-50, 58-77.
Any minimally adequate correctional mental health care system must include discretely defined and available levels of care sufficient to meet the needs of its population. Filing 249-38 (Stewart Decl.) ¶¶ 32-37, 42-43. Yet, NDCS fails to implement a mental health service array with distinct levels of care sufficient to meet the needs of the prisoner population. Id. ¶¶ 32-43.
13 Dr. Stewart is a psychiatrist with over 30 years of correctional experience. Dr. Stewart has extensive clinical, research, and academic experience in forensic mental health, including consultations involving prison and jail systems in other jurisdictions. He is serving as the neutral expert monitor in the Illinois statewide prison mental health class action, Rasho v. Baldwin, 07CV-1298-MMM-JEH (C.D. Ill.). Filing 249-38 (Stewart Decl.) ¶¶ 2-19.
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NDCS’s failure to implement any standardized levels of care disregards the mental health needs of all prisoners and puts them at substantial risk of serious harm due to inappropriately keeping high-need prisoners in a lower level of care, and keeping prisoners who no longer require high levels of care in inappropriately restrictive settings. Id.
NDCS also fails to maintain an organized or coherent system of documenting and coordinating mental health treatment for prisoners and does not have an effective means for prisoners to make their mental health needs known to qualified staff in a timely manner. Filing 249-38 (Stewart Decl.) ¶¶ 44-57. In particular, NDCS relies in part on the use of telepsychiatry to provide psychiatric care, but the telepsychiatry providers are not provided with access to prisoners’ medical files. Id. ¶ 54-57. This exposes prisoners to a substantial risk of serious harm because the telepsychiatry provider is unable to have a full picture of the patient’s medical record to ensure proper care and avoid medical complications caused by multiple medications or conditions. Id. Mental health records are disorganized, incomplete, and sometimes internally contradictory. Id. ¶¶ 51-57. Finally, as discussed further below, NDCS systemically disregards the devastating effect that isolated confinement has upon individuals with serious mental illnesses. Id. ¶¶ 78-81. All of these systemic failures are consistent across NDCS facilities and put all prisoners at substantial risk of serious harm. Id. ¶¶ 81-84.
C. NDCS Defendants Exercise Complete Control Over the Use of Isolation The use of isolation, which NDCS calls “restrictive housing,” is governed by AR 210.01, which controls placement of prisoners in restrictive housing, sets forth the conditions in restrictive housing for all prisoners in NDCS, and establishes the process for reviewing placement of prisoners in long-term restrictive housing. Filing 249-90 (AR 210.01); Filing 24989, Transcript of 30(b)(6) Deposition of Robert Madsen (Madsen Depo.) at 22:22-24:25; 31:824; Filing 249-80 (Deol Depo.) at 296:16-298:17; Filing 249-47 (Vail Decl.) ¶¶ 63-64. The term
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“restrictive housing” is defined by statute as “conditions of confinement that provide limited contact with other offenders, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week.” Neb. Rev. Stat. § 83-170; Filing 249-90 (AR 210.01). However, the Office of Inspector General has found that “nearly every inmate who is placed in restrictive housing receives an average of less than one hour out of their cell each day.” Filing 249-91 (2017/2018 OIG Report) at 59. Several of Plaintiffs’ experts have assessed NDCS’ overreliance on segregation, including psychiatrist Dr. Stewart, identified above, as well as psychologist Dr. Craig Haney14 (Filing 249-42), and former Washington State secretary of corrections, Eldon Vail15 (Filing 249-47).
Isolation units at NDCS are highly restrictive and subject prisoners to severe social and other deprivations, including small, cramped cells, “exercise” areas consisting of fenced-in cages with little to no exercise equipment, severe idleness, and extreme limits on visitation and property. Filing 249-42 (Haney Decl.) ¶¶ 15, 49-70; Filing 249-47 (Vail Decl.) ¶¶ 65-66. The damaging effects of isolation or solitary confinement are well established, and place all prisoners housed in them at substantial risk of serious psychological harm, even those without pre-existing mental illness.16 Filing 249-42 (Haney Decl.) ¶¶ 15, 18-43; Filing 249-38 (Stewart Decl.) ¶¶ 24,
14 Dr. Haney is a Professor of Psychology and former Chair of the Department of Psychology at the University of California at Santa Cruz who has studied and published about institutional environments, including prisons, for over 40 years. Dr. Haney has toured, inspected, and analyzed conditions of confinement at numerous state and federal prisons across the country and around the world. Dr. Haney has been qualified and has testified as an expert in various state and federal courts. Filing 249-42 (Haney Decl.) ¶¶ 1-7. 15 Eldon Vail is a former correctional administrator with 35 years of experience administering adult institutions. Mr. Vail served as warden of three Washington state prisons, and as Secretary of the Washington Department of Corrections. Mr. Vail has consulted and testified regarding overcrowding and reliance on segregation in numerous cases involving prison and jail systems. Filing 249-47 (Vail Decl.) ¶¶ 2-10. 16 Plaintiffs use the terms “isolation,” “solitary confinement” and “restrictive housing” interchangeably, unless otherwise noted, to refer to “conditions of confinement that provide
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49, 78-79; Filing 249-47 (Vail Decl.) ¶¶ 61-62, 65-70. The long-term absence of meaningful human contact and social interaction, the enforced idleness and inactivity, and oppressive security and surveillance procedures in these units all combine to create starkly deprived conditions of confinement, which have devastating effects on prisoners. Filing 249-42 (Haney Decl.) ¶¶ 18-43. These effects can include appetite and sleep disturbances, anxiety, panic, rage, loss of control, paranoia, hallucinations, self-mutilation, and suicide. Id. Dr. Haney’s interviews and file reviews revealed “multiple instances of suicidality or extreme acting out by prisoners who were nonetheless kept in—or routinely returned to—harsh solitary confinement units, where they were once again placed at an especially significant risk of grave harm.” Filing 249-42 (Haney Decl.) ¶¶ 58-64. Dr. Haney reviewed the incident reports from two recent NDCS suicides in restrictive housing, and stated that:
These two cases tragically illustrate the type of serious risks to which prisoners are subjected in restrictive housing, including receiving inadequate care for their serious mental illnesses, suffering mental deterioration caused by severe forms of prison isolation (especially for prisoners with pre-existing psychological vulnerabilities), and failing to receive meaningful oversight and monitoring by staff. Id. ¶¶ 65-67; see also Filing 249-38 (Stewart Decl.) ¶ 80. NDCS uses two primary types of restrictive housing, Immediate Segregation (IS) and Longer-Term Restrictive Housing (LTRH). IS a short-term placement of thirty days or less with the possibility to extend such segregation to sixty days. Filing 249-90 (AR 210.01) at 7. There is no limit on how long an individual may be placed in LTRH. Filing 249-92 (2018 Restrictive Housing Report) at 3; Filing 249-90 (AR 210.01) at 3, 7-11. Individuals on IS and LTRH status are housed in the same restrictive housing units, but if they have a serious mental illness and are
limited contact with other offenders, strictly controlled movement while out of cell, and out-ofcell time of less than twenty-four hours per week”. Neb. Rev. Stat. 83-170(13); Filing 249-42 (Haney Decl.) ¶ 18; Filing 249-47 (Vail Decl.) ¶ 61, n. 70.
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deemed to require residential mental health treatment, they are, by policy, to be housed in the Secure Mental Health Unit (SMHU) located at LCC. Filing 249-42 (Haney Decl.) ¶ 49; Filing 249-90 (AR 210.01) at 3. Conditions in the SMHU resemble those in the other restrictive housing units, making it particularly ineffective and dangerous when used as a substitute for a mental health treatment facility. Filing 249-42 (Haney Decl.) ¶ 50; Filing 249-38 (Stewart Decl.) ¶ 40.
The conditions of confinement in these restrictive housing units are extraordinarily severe. The cells are small and, with only a few exceptions, the outdoor exercise areas consist of individual fenced-in cages with little to no exercise equipment. Filing 249-42 (Haney Decl.) ¶ 51. Prisoners are afforded extremely limited out-of-cell time; they only have to be let out of their cells for one hour a day, five days a week for exercise, and three times a week to shave and shower, and they may have their ability to exercise curtailed even further, to just three times a week. Id. ¶ 52; Filing 249-47 (Vail Decl.) ¶ 65. There is limited programming available for prisoners in restrictive housing and most of what is available consists of “programs” that a prisoner completes alone in his or her cell, which may be repeated many times. Filing 249-42 (Haney Decl.) ¶¶ 49-55. Prisoners are afforded very limited property and have extremely limited access to visitation from family and loved ones. Id. ¶ 53. Conditions in the general population restrictive housing units and the SMHU are nearly identical, and constitute isolation or solitary confinement as those terms are routinely defined. Id. ¶¶ 51, 57. The combination of overcrowding, overuse of restrictive housing, and understaffing yields shocking scenes like what Dr. Haney observed in the “South Forty” unit at NSP, with men held in small filthy cells behind windowless metal doors. Id. ¶ 68. Conditions in these units are desperate not only for prisoners, but also for staff. Mental health staff in the South Forty are reduced to navigating the pipe chases behind cells in order to be able to talk to their patients through small openings in the
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walls. Id. Despite the awareness of NDCS policy makers that overreliance on restrictive housing is
dangerous, the number of prisoners held in these units has continued to increase. Filing 249-42 (Haney Decl.) ¶¶ 47-48; Filing 249-47 (Vail Decl.) ¶¶ 66-76. As of August 2018, there were 414 prisoners in restrictive housing units, an increase of 22% since 2014. Filing 249-91 (2017/2018 OIG Report) at 56. The average daily population in restrictive housing has increased by over 15% since 2017 and, on average, approximately 404 people were held in restrictive housing on any given day in 2018. Filing 249-92 (2018 Restrictive Housing Report) at 5. The number of prisoners held in restrictive housing for more than 180 consecutive days has more than doubled in the past two years, from 62 in September 2016 to 158 in August 2018. Filing 249-91 (2017/2018 OIG Report) at 56; Filing 249-42 (Haney Decl.) ¶ 47. The mean length of time prisoners spent in restrictive housing in 2018 was 48.39 days, but approximately 70 prisoners have been held in LTRH for over a year. Filing 249-92 (2018 Restrictive Housing Report) at 10. Recently a prisoner was discharged from NDCS to the community without supervision after spending 878 days in LTRH. Id. at 32.
The level of overcrowding at NDCS and high rates of turnover and staffing shortages contribute significantly to the increasing number of prisoners held in isolation and to the highly dangerous practice of placing two prisoners into one isolation cell. Filing 249-47 (Vail Decl.) ¶¶ 61-87. Without sufficient staff, correctional facilities, including NDCS, end up relying on overuse of isolation in an effort to manage prisoners. Id. ¶¶ 61-62, 72-76, 87. These practices are not only counterproductive to good prison security, but put all prisoners at a substantial risk of serious harm. Id. ¶¶ 61-87.
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D. NDCS Defendants Exercise Complete Control Over Disability-Related Accommodations and Fail to Identify, Track, or Have Any System in Place to Provide Reasonable Modifications to Prisoners with Disabilities
Defendants systemically fail to provide prisoners with disabilities with access to NDCS services, programs, and activities. Disability-related accommodations at NDCS are primarily governed by two centralized policies: AR 4.01 (ADA Policy), which governs disability related accommodations, and AR 200.3 (ASL Policy) which governs provision of sign language interpreters. Filing 249-87 (AR 4.01); Filing 249-88 (AR 200.3). These policies, however, fail to address identification of prisoners with disabilities, provision of assistive devices and auxiliary aids, and housing-related accommodations. Filing 249-50 (Schlanger Decl.) ¶¶ 10-11. NDCS’ ADA policy further relies entirely on written requests for disability-related accommodations, even where individuals are blind or have other disabilities that impair their ability to understand and/or complete written forms. Filing 249-87 (AR 4.01) § II(B). Plaintiffs’ expert, Professor Margo Schlanger,17 has evaluated the NDCS policies, procedures and practices regarding prisoners with disabilities. See Filing 249-50 (Schlanger Decl.).
Defendants have no written policies or procedures to enable Defendant NDCS to identify individuals with disabilities at intake as they are processed through DEC. Filing 249-50 (Schlanger Decl.) ¶¶ 11, 38-39. Defendant Deol testified that nursing staff conduct disability assessments at intake but there is no written policy to guide them in doing so, and NDCS’ ADA Coordinator, who was speaking on behalf of NDCS regarding identification of individuals with disabilities, testified that she has never seen such a written policy. Filing 249-80 (Deol Depo.) at
17 Professor Schlanger has served since 2015 as the court-appointed settlement monitor in Adams & Knights v. Kentucky Department of Corrections, No. 3:14-cv-00001 (E.D. Ky.), a state-wide case about deaf and hard-of-hearing prisoners’ access to programs, services, and activities offered by the Kentucky Department of Corrections, and previously served as the Officer for Civil Rights and Civil Liberties at the United States Department of Homeland Security. She has consulted for numerous government agencies on correctional policies concerning persons with disabilities. Filing 249-50 (Schlanger Decl.) ¶¶ 1-7.
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82:18-83:8; Filing 249-86 December 5, 2018 Deposition of 30(b)(6) Lisa Mathews (Mathews 12/5/18 Depo.) at 32:13-19. Defendant Deol stated that, in practice, individuals identified as needing ADA “requirements” during intake would be referred to the ADA Coordinator. But NDCS’ ADA Coordinator testified that she has never received such a referral. Filing 249-50 (Schlanger Decl.) ¶¶ 63-67; Filing 249-80 (Deol Depo.) at 82:18-83:18; Filing 249-86 (Mathews 12/5/18 Depo.) at 41:24-42:2.
Furthermore, NDCS has no written policy to ensure deaf prisoners are provided with effective communication at intake. Filing 249-80 (Deol Depo.) at 90:2-91:19. NDCS’ Staff Training Academy does not provide NDCS staff with any training regarding how to communicate with prisoners who are deaf or hard of hearing and provides no training to NDCS staff on the use auxiliary aids. Filing 249-96, Transcript of 30(b)(6) Deposition of Kenneth Sturdy at 103:20-104:8. Defendant Deol did not know whether sign language interpreters are provided for deaf prisoners at intake and testified that they use TDD machines to communicate. Filing 249-80 (Deol Depo.) at 90:2-17. But TDD machines are intended to be used with a telephone to place calls using a relay service or by connecting to another TDD machine using a phone line, and are not intended to provide effective communication in an in-person setting. Filing 249-50 (Schlanger Decl.) ¶¶ 96-97.
Defendants also have no written policies governing the provision of assistive devices at intake besides a cursory reference in AR 4.01 to the fact they will be “prescribed and approved by health services subject to medical necessity, safety and security.” Id. ¶ 11; Filing 249-87 (AR 4.01); Filing 249-86 (Mathews 12/5/18 Depo.) at 45:11-46:1. However, Defendants have no written policies defining what “medical necessity” means in the context of disability-related accommodations and similarly have no written policies or guidelines for intake staff to apply to ensure decisions are made in a consistent justifiable manner. Filing 249-50 (Schlanger Decl.)
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¶ 11; Filing 249-80 (Deol Depo.) at 19:19-20:6. Instead, NDCS relies on intake medical staff to visually spot disabilities on an ad hoc basis and hopes that they provide devices immediately, without any written policy or process to ensure that actually occurs. Filing 249-80 (Deol Depo.) at 86:15-87:20.
To the extent prisoners with disabilities are identified at intake, Defendants have no tracking system to ensure housing unit staff know what accommodations are needed and provide them. Filing 249-50 (Schlanger Decl.) ¶¶ 11-12, 70-75; Filing 249-86 (Mathews 12/5/18 Depo.) at 51:7-24. NDCS maintains no central list, electronic or otherwise, of prisoners with disabilities and the accommodations they require. Filing 249-50 (Schlanger Decl.) ¶ 71; Filing 249-86 (Mathews 12/5/18 Depo.) at 51:7-13. Information regarding an individual’s disability-related needs is kept within his or her ADA file, which is not accessible to correctional or medical staff. Filing 249-50 (Schlanger Decl.) ¶¶ 71,74-75; Filing 249-85, Transcript of August 23, 2018 Deposition of Lisa Mathews (Mathews 8/23/18 Depo.) at 86:3-87:8. Without a clear tracking system, there is no way to ensure NDCS staff are aware of the disability-related needs of prisoners on their units. Filing 249-50 (Schlanger Decl.) ¶¶ 73-74.
Defendants also lack an effective ADA request process and an effective grievance process for prisoners with disabilities. Id. ¶¶ 99-103. Pursuant to AR 4.01, all requests for disability-related accommodations must be made in writing. Filing 249-87 (AR 4.01) at § II(B). Prisoners who are blind or have cognitive or other disabilities that affect their ability to complete written forms must rely on other prisoners to help them because they cannot make requests orally. Filing 249-86 (Mathews 12/5/18 Depo.) at 58:21-59:21. Having to rely on other prisoners for assistance puts persons with disabilities at risk of exploitation, requires them to disclose sensitive information to other prisoners or staff, and can cause unnecessary delay as prisoners with disabilities have to find someone who is willing and available to help them.
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Filing 249-50 (Schlanger Decl.) ¶¶ 87-88. NDCS lacks effective policies to ensure effective communication with prisoners who
have disabilities that affect communication—including hearing, vision, speech, learning, developmental, cognitive, or psychiatric disabilities. Id. ¶¶ 10, 12. While NDCS sometimes provides sign language interpreters, there is no written policy governing how to request a sign language interpreter, and sign language interpreters are not provided for critical encounters. NDCS’ AR 200.03 covers both language interpretation for Spanish speakers and American Sign Language (ASL) interpretation services. Although Section II of AR 200.03 sets out a process for requesting language interpretation for Spanish speakers it fails to similarly establish a process for deaf prisoners to request ASL services, particularly those who rely exclusively on ASL to communicate. Filing 249-88 (AR 200.03); Filing 249-86 (Mathews 12/5/18 Depo.) at 78:280:8.18 Additionally, NDCS limits the availability of ASL interpreters to only certain communication-related events, which do not include religious communications or education or vocational programs, and requires prisoners to go through an unexplained process to obtain Warden approval for use of an ASL interpreter outside of the specifically enumerated categories. Filing 249-88 (AR 200.03) at § III(C).
Defendants have also refused to provide prisoners who use sign language with a videophone to allow them to communicate with deaf family and friends, even when NDCS was informed that such a service could potentially be provided at no cost and even though NDCS provides electronic tablets capable of video calling to hearing prisoners. Filing 249-86 (Mathews 12/5/18 Depo.) at 89:13-91:6. Instead, NDCS relies on outdated TTY technology which requires
18 ASL is not simply a visual representation of English. Rather, “ASL is a visual, threedimensional, non-linear language, and its grammar and syntax differ from the grammar and syntax of English and other spoken languages.” E.E.O.C. v. UPS Supply Chain Sols., 620 F.3d 1103, 1105 (9th Cir. 2010) (citations omitted)); Filing 249-50 (Schlanger Decl.) ¶ 93 n. 36.
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that the prisoner be able to read and type in English and which cannot be used to communicate directly with deaf family members or friends unless they also have a TTY/TDD machine. Filing 249-50 (Schlanger Decl.) ¶ 97; Filing 249-86 (Mathews 12/5/18 Depo.) at 26:22-27:11 (stating TTY is “a very old technology” and describing how it works).
There are also significant physical barriers at various NDCS facilities. For instance, the entirety of the LCC, which houses NDCS’ only secure mental health unit for men, is completely inaccessible to prisoners who cannot navigate stairs due to physical disabilities. Filing 249-97, Transcript of 30(b)(6) Deposition of Jerry Pohlmann (Pohlmann Depo.) at 135:12-137:15. The only substance abuse unit at NSP is similarly inaccessible to persons with mobility disabilities. Filing 249-98 (2019-2021 Budget Requests) at NDCS 177564 (listing physical barriers in Housing Unit 6 at NSP and noting “this housing unit is the only place that inmates are offered substance abuse treatment”); Filing 249-97 (Pohlmann Depo.) at 205:20-207:15. NDCS has admitted that many of its facilities have physical barriers and are not accessible to persons with mobility disabilities as required by the ADA, including but not limited to barriers that affect access to showers, housing, and educational, vocational, and rehabilitative programming. Filing 249-98 (2019-2021 Budget Requests) at NDCS 177594-577 (Housing Units K, J1, J2, gymnasium in Building H, and program areas in Buildings B, C, F, D, E at CCC-O not accessible); NDCS 177576-177549 (Visitation, gymnasium, Housing Units 1, 2, 3, 4, and 6 library, chapel, soap factory, counseling, and mental health clinic at NSP not accessible); NDCS 177550 (education, gymnasium, and visiting areas at LCC not accessible); NDCS 177544 (visiting, housing, and gymnasium areas at DEC not accessible); NDCS 177540 (shower and restroom areas in the work release unit at CCC-O not accessible); Filing 249-102, Transcript of 30(b)(6) Deposition of Michelle Capps at 90:11-91:7 (NSP’s Housing Unit 5, which contains the Veterans Unit and the Prison Fellowship Unit, and NSP’s Close Management Unit are not
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accessible to prisoners who cannot climb stairs). Furthermore, NDCS has not conducted an assessment of physical accessibility since at least 1996, and has not made any such assessment available to the officials in charge of ADA compliance and structural accessibility. Filing 24997 (Pohlmann Depo.) at 42:6-43:25; Filing 249-86 (Mathews 12/5/18 Depo.) at 98:20-99:15. II. Defendant BOP Operates a Centralized System For Administering Parole Reviews
and Hearings and Has Abdicated Its Responsibilities to Provide Disability-Related Accommodations The Nebraska Board of Parole (BOP) is governed by the Nebraska Board of Parole Rules (BOP Rules), which are adopted and promulgated in accordance with the Nebraska Revised Statutes, and lay out the multi-step parole and parole revocation processes. Filing 249-94 (BOP Rules); Filing 249-93 (Cotton Depo.) at 33:7-34:20. The BOP has denied, and continues to deny, each Disability Subclass Named Plaintiff and all members of the proposed Disability Subclass the benefits of its services, programs, and activities because of their disabilities, by denying them the same opportunity to prepare for and participate in its parole and parole revocation processes as is given to prisoners without disabilities, and by failing to ensure that prisoners with disabilities are provided the reasonable modifications and accommodations that they require to have meaningful access to BOP’s parole and parole revocation processes. Filing 249-50 (Schlanger Decl.) ¶¶ 13, 119-122. The BOP Rules contain no policies or procedures for providing reasonable modifications or auxiliary aids or services to prisoners with disabilities, and no policies or procedures for prisoners with disabilities to request reasonable modifications and/or auxiliary aids or services that they require to meaningfully access the BOP’s parole and parole revocation processes— including for Prisoner Reviews, Key Reviews, Prisoner Interviews and Parole Hearings, and for Preliminary Probable Cause Hearings and Review of Parole Hearings. Filing 249-50 (Schlanger Decl.) ¶ 120; Filing 249-93 (Cotton Depo.) at 84:23-86:3. The BOP also does not have a system
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to enable it to track the disabilities and disability accommodation needs of the prisoners and parolees who participate in its processes. Filing 249-93 (Cotton Depo.) at 95:16-18 (“Q: Does the Board of Parole track in any way the needs of prisoner or parolees with disabilities? A: We do not”). The BOP mails hardcopy materials to prisoners in preparation for their parole hearings, but fails to make any such materials available in accessible formats—such as large print, braille, or audio—to prisoners who are blind. Filing 249-93 (Cotton Depo.) at 102:9103:9. The BOP has no formal mechanism for prisoners to request accommodations from the BOP and instead assumes that such accommodations are provided by NDCS, despite having no formal or even informal agreement with NDCS to provide such accommodations. Filing 249-50 (Schlanger Decl.) ¶ 120; Filing 249-93 (Cotton Depo.) at 86:5-89:21, 104:15-19.
Additionally, the factors used by the BOP to determine whether to grant or deny parole also facially discriminate on the basis of disability by allowing consideration of the prisoner’s personality, intelligence, conduct, behavior and “mental or physical makeup including any disability or handicap which may affect his or her conformity to the law,” as factors weighing against parole. Filing 249-50 (Schlanger Decl.) ¶ 121. The BOP also fails to consider whether disciplinary issues are disability-related in its decisionmaking because it does not receive such information. Id.
ARGUMENT I. The Governing Legal Standards for Plaintiffs’ Claims
Plaintiffs’ claims are based on violations of the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973 (RA). Filing No. 1 ¶¶ 241-276.
The Eighth Amendment is violated when prison officials, acting with “deliberate indifference,” expose prisoners to “a substantial risk of serious harm.” Farmer v. Brennan, 511
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U.S. 825, 828 (1994). In a case seeking only injunctive relief, it is the risk itself that violates the Eighth Amendment; the prisoner need not await bodily injury before seeking relief. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition.”). A prison official acts with deliberate indifference when she “knows of and disregards an excessive risk to inmate health or safety….” Farmer, 511 U.S. at 837. In class actions challenging a prison’s healthcare systems, “systemic deficiencies can provide the basis for a finding of deliberate indifference.” Postawko v. Missouri Dep't of Corr., No. 2:16-CV-04219-NKL, 2017 WL 3185155, at *7 (W.D. Mo. July 26, 2017), aff'd, 910 F.3d 1030 (8th Cir. 2018) (quoting Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)). Deliberate indifference to prisoners’ health needs may be shown “by proving that there are such systemic and gross deficiencies in ... procedures that the inmate population is effectively denied access to adequate medical care.” Id. (internal citations and quotations omitted); see also Brown v. Plata, 563 U.S. 493, 505 at n.3 (2011) (“Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to ‘substantial risk of serious harm’….”).
The ADA and RA prohibit persons with disabilities from being “excluded from participation in or be[ing] denied the benefits of the services, programs, or activities of a public entity, or be[ing] subjected to discrimination [due to their disabilities] by any such entity.” 42 U.S.C. § 12132; see also Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (“The ADA and the RA are similar in substance and, with the exception of the RA’s federal funding requirement, cases interpreting either are applicable and interchangeable.”) (internal quotation marks and citations omitted). The “ADA and RA require that otherwise qualified individuals receive ‘meaningful access’ to programs and activities.” Randolph, 170 F.3d at 858 (finding no “credible evidence to support a finding that [deaf plaintiff] enjoyed meaningful access to the
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prison’s internal disciplinary process, even if he was capable of limited participation” due to the lack of sign language interpreter.) ADA and RA claims based on a failure to make reasonable accommodations are “framed in terms of the failure to fulfill an affirmative duty—the failure to reasonably accommodate the disabled individual’s limitations.” Cotton v. Douglas Cty. Dep’t of Corr., No. 8:16-cv-153, 2016 WL 5816993, at *5 (D. Neb. Oct. 5, 2016) (quoting Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004)). II. Legal Standard for Class Certification
“A decision to certify a class is far from a conclusive judgment on the merits of the case.” Postawko v. Missouri Dep't of Corr., 910 F.3d 1030, 1037 (8th Cir. 2018) (citing In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) (internal quotations omitted)). “For that reason, ‘Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.’” Postawko, 910 F.3d at 1037 (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013)). The court’s “primary task is not to determine the final disposition of a plaintiff’s claims, but instead to examine whether those claims are appropriate for class resolution.” Id.; see also Amgen Inc., 568 U.S. at 466 (“Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”).
For the Court to certify a class, plaintiffs must satisfy the four requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—and show that the class fits within at least one of three categories of class actions listed under Rule 23(b). Fed. R. Civ. P. 23; see also Postawko, 910 F.3d at 1036. The NDCS Class and the Isolation and Disability Subclasses satisfy the requirements of Rule 23(a) and meet the requirements of Rule 23(b)(1) and (b)(2) and, as such, should be certified.
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III. Plaintiffs, the Proposed Class, and Proposed Subclasses Satisfy the Requirements of Rule 23(a) A. The Proposed NDCS Class and Subclasses Are Sufficiently Numerous The proposed NDCS Class, Isolation Subclass and Disability Subclass satisfy Rule
23(a)(1)’s numerosity requirement, as they are each “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). A class or subclass with “40 or more members raises a presumption of impracticability based on numbers alone.” William Rubenstein, Newberg on Class Actions § 3:12 (5th ed. June 2018 Update). Courts have routinely found that numerosity is satisfied where, as here, the proposed class comprises current and future prisoners who seek only declaratory and injunctive relief. See Postawko, 910 F.3d at 1037-1038 (affirming certification of a class of “at least 2,000” prisoners with Hepatitis C); Dockery v. Fischer, 253 F. Supp. 3d 832, 853 (S.D. Miss. 2015), petition for appeal pursuant to Rule 23(f) denied, No. 15-90110, slip op. (5th Cir. Nov. 2, 2015) (finding “joinder would not be practical in this case because the population at [the prison] is subject to change as prisoners are transferred into and out of that facility.”); see also Caroline C. ex rel. Carter v. Johnson, 174 F.R.D. 452, 463 (D. Neb. 1996) (“Since there is no way now of determining how many of these future plaintiffs there may be, their joinder is impracticable.”) (internal citations and quotation marks omitted).
The proposed NDCS Class is sufficiently numerous that joinder of all members would be impractical and infeasible. The NDCS Class consists of “all persons who are now, or will in the future be, subjected to the health care (including medical, mental health, and dental care) policies and practices of NDCS.” Filing 1 ¶ 214. From October to December 2018 (the most recent time period for which statistics are available), NDCS held an average daily population of 5,358 men and women in facilities designed to hold no more than 3,375 individuals. Filing 249-75 (NDCS Quarterly Data Sheet October-December 2018). Each of the over 5,000 prisoners in NDCS custody are subject to the same systemwide policies and practices challenged in this lawsuit.
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Filing 249-77 (AR 001.01). As a result, the NDCS Class includes all 5,358 current prisoners, and an untold number of future prisoners, and clearly satisfies the numerosity requirement.
The Isolation Subclass is also sufficiently numerous that joinder would be impractical and infeasible. The definition of the Isolation Subclass mirrors NDCS’ statutory definition of “restrictive housing” and consists of all NDCS prisoners who are now, or will in the future be, subject to conditions of confinement that provide limited contact with other prisoners, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week. Neb. Rev. St. 83-170(13); Filing 249-42 (Haney Decl.) ¶ 18. Over the course of NDCS’ fiscal year 2018, 1,856 prisoners were held in restrictive housing for at least one day, and all prisoners in the custody of NDCS are potentially subject to isolation. Filing 249-92 (2018 NDCS Restrictive Housing Report) at 10. These numbers are more than enough to establish numerosity. See Dockery, 253 F. Supp. 3d at 853 (finding isolation subclass of 150 prisoners sufficiently numerous).
The proposed Disability Subclass is also sufficiently numerous. The Disability Subclass consists of “all persons with disabilities who are now or will be in the future confined at any NDCS facility.” Dkt. No. 1 ¶ 232. Because Defendants do not maintain a record of prisoners with disabilities in NDCS facilities, it is impossible to know with certainty the total size of the Disability Subclass. However, according to data from the 2013-2017 American Community Survey 5-Year Estimate conducted by the United States Census, of the total civilian noninstitutionalized population, an estimated 198,830 Nebraskans over the age of 16 have a disability (nearly 14% of the state’s population at the time of the survey). Filing 249-50 (Schlanger Decl.) ¶ 29. Assuming an approximately equivalent incidence of disabilities in Nebraska’s prison population of 5,358, there are approximately 750 individuals with disabilities in NDCS facilities at any given time. These numbers are more than enough to satisfy
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numerosity; moreover, this is likely an underestimate of the subclass size, because persons with disabilities are overrepresented in correctional facilities. Filing 249-50 (Schlanger Decl.) ¶¶ 2930.
B. The Commonality Requirement of Rule 23(a)(2) is Satisfied Because the Claims of the Class and Subclasses Present Common Issues of Fact and Law That Are Capable of Common Resolution
To meet the commonality requirement, there must be “questions of law or fact common to the class,” Fed. R. Civ. P. 23(a)(2), and class members must “have suffered the same injury,” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal citation and quotation marks omitted) (hereinafter “Dukes”). “To satisfy Rule 23(a)(2), plaintiffs must show their claims involve a common question or contention ‘of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Postawko, 910 F.3d at 1038 (quoting Sandusky Wellness Ctr., LLC v. Medtox Scientific, Inc., 821 F.3d 992, 998 (8th Cir. 2016)). What matters is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (citations and emphasis omitted). Differences among class members with respect to the specific incidents of inadequate health care, adverse effects of isolation, or disability discrimination they have suffered do not undermine commonality. See Postawko, 910 F.3d at 1039 (quoting Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“although a presently existing risk may ultimately result in different future harm for different inmates … every inmate suffers exactly the same constitutional injury when he is exposed to a single … policy or practice that creates a substantial risk of serious harm”) (emphasis added)); Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (rejecting defendant’s argument that class was improperly certified in prison case alleging several forms of systemic disability discrimination). Nor is it necessary that all questions be common. Postawko
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v. Missouri Dep't of Corr., No. 2:16-CV-04219-NKL, 2017 WL 3185155, at *6 (W.D. Mo. July 26, 2017), aff'd, 910 F.3d 1030 (8th Cir. 2018) (“In Ebert v. General Mills, Inc., 823 F.3d 472 (8th Cir. 2016), the Eighth Circuit reaffirmed that ‘a single common question ‘will do’ for purposes of Rule 23(a)(2).’”); Dukes, 564 U.S. at 359 (“We quite agree that for purposes of Rule 23(a)(2) even a single common question will do”) (internal quotation marks and alterations omitted).
“The commonality requirement is satisfied as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of the litigation.” Beckmann v. CBS, Inc., 192 F.R.D. 608, 614 (D. Minn. 2000). In civil rights cases, “commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members,” Armstrong, 275 F.3d at 868, even if the challenged policy or practice will affect individual class members in different ways. See, e.g., Postawko, 910 F.3d at 1038-1039 (finding commonality satisfied where “all class members share the common question of whether Defendants’ policy or custom … constitutes deliberate indifference to a serious medical need” and while the “physical symptoms eventually suffered by each class member may vary … the question asked by each class member is susceptible to common resolution.”) (internal quotation marks and alterations omitted); Yates v. Collier, 868 F.3d 354, 365 (5th Cir. 2017) (finding commonality where prison’s heat mitigation measure either “mitigated the risk of high temperature for all class members or for none of them.”) (emphasis in original); Braggs v. Dunn, 317 F.R.D. 634, 656 (M.D. Ala. 2016) (finding “case law supports a finding of commonality here, because being subjected to a substantial risk of serious harm is an actionable constitutional injury, even when a prisoner’s physical or mental condition has not yet been detrimentally impacted.”); Unknown Parties v. Johnson, 163 F. Supp. 3d 630, 637 (D. Ariz. 2016) (“[T]he question of whether Defendants have violated the applicable
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legal standard with respect to the treatment of immigration detainees held overnight in Tucson Sector Border Patrol facilities unquestionably lends itself to classwide resolution.”); Parsons v. Ryan, 289 F.R.D. 513, 521 (D. Ariz. 2013) aff'd, 754 F.3d 657 (9th Cir. 2014) (“It matters not that each inmate may suffer from different ailments or require individualized treatment because commonality may be met where the claims of every class member are based on a common legal theory, even though the factual circumstances differ for each member.”) (internal quotations omitted).
Common questions capable of common answers suffuse this entire lawsuit. The major questions related to liability for the NDCS Class’ Eighth Amendment claims are common to all class members. NDCS’ system of medical, mental health, and dental care is centrally controlled and operated by NDCS. Neb Rev. Stat §§ 83-171, 83-173, 83-181; Filing 249-82 (AR 115.01). As detailed in Section I, Plaintiffs have identified multiple deficiencies in NDCS’ systemic policies and practices which place the named Plaintiffs and the proposed NDCS Class at substantial risk of serious harm. Postawko, 910 F.3d at 1038 (whether a policy or custom “constitutes deliberate indifference to a serious medical need” is a question to which the answer “will resolve an issue central to the validity of each of the class members’ claims.”) (internal quotations omitted); Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“What all members of the putative class and subclass have in common is their alleged exposure, as a result of specified statewide [prison] policies and practices that govern the overall conditions of health care services and confinement, to a substantial risk of serious future harm to which the defendants are allegedly deliberately indifferent.”).
The following questions related to liability for the NDCS Class’ Eighth Amendment claims are common to all class members:  Are the NDCS Defendants deliberately indifferent to the NDCS Class Members’ health
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 Do the NDCS Defendants, through their medical policies and practices, or lack thereof (including but not limited to intake and screening, requests for health care, diagnostic testing, medical facilities, chronic care, medication administration, record keeping, outside referrals, emergency response, post-operative treatment, quality management, staffing, and training) expose prisoners to a substantial risk of serious harm?
 Do the NDCS Defendants, through their dental policies and practices, or lack thereof (including intake and screening, record keeping, outside referrals, requests for dental care, quality management, staffing, and training) expose prisoners to a substantial risk of serious harm?
 Does the NDCS Defendants’ policy of refusing to provide non-emergent dental care until a prisoner has been in NDCS for at least one year expose prisoners to a substantial risk of serious harm?
 Does the NDCS Defendants’ policy of refusing to provide dentures until the prisoner has been in NDCS for at least two years expose prisoners to a substantial risk of serious harm?
 Does the NDCS Defendants’ policy of refusing to provide periodontal care expose prisoners to a substantial risk of serious harm?
 Does the NDCS Defendants’ lack of any systematic mechanism to track and log prisoner requests for dental care, medical care, and mental health care expose prisoners to a substantial risk of serious harm?
 Do the NDCS Defendants, through their mental health care policies and practices, or lack thereof (including but not limited to intake and screening, staffing, suicide prevention, use of isolation, mental health care facilities, requests for mental health care treatment, medication administration and monitoring, provision of inpatient care, continuity of care, quality management, and training), expose prisoners to a substantial risk of serious harm?
The NDCS Defendants’ use of isolation is similarly governed by a central set of policies
and practices which place the named Plaintiffs and the proposed Isolation Subclass at substantial
risk of serious harm. Filing 249-90 (AR 210.01); Filing 249-42 (Haney Decl.) ¶¶ 8-78; Filing
249-47 (Vail Decl.) ¶¶ 61-88. The following questions related to liability for the Isolation
Subclass’ Eighth Amendment claims are common to all class members:
 Do the NDCS Defendants, through their isolation policies and practices, or lack thereof (including lack of monitoring of prisoners in isolation) expose prisoners in isolation to a substantial risk of serious harm?
 Do the conditions in isolation units (including extreme social isolation and sensory deprivation and extremely limited out-of-cell time) expose prisoners in isolation to a substantial risk of serious harm?
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 Does the NDCS Defendants’ failure to impose any limit on the length of time a prisoner may be held in isolation expose prisoners in isolation to a substantial risk of serious harm? The members of the Disability Subclass also share common questions capable of
common answers. Pursuant to Title II of the ADA, a “qualified individual with a disability” cannot, “by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; see also 28 C.F.R. § 35.152(b)(1) (specifically applying this mandate to correctional facilities). Because of the unique nature of correctional facilities, in which prison staff control nearly all aspects of prisoners’ daily lives, most everything provided to prisoners is a public service, program, or activity, including: eating, showering, toileting, communicating with those outside of NDCS by mail and telephone, exercising, safety and security, NDCS’ administrative, disciplinary, and classification proceedings, medical, mental health, and dental services, the library, educational, vocational, substance abuse, and anger management classes, and discharge services. See 28 C.F.R., Pt. 35, App. A (U.S. Department of Justice Guidance, explaining that “correctional facilities are unique facilities under title II” because prisoners “cannot leave the facilities and must have their needs met by the corrections system,” which “include, but are not limited to, proper medication and medical treatment, accessible toilet and shower facilities, devices such as a bed transfer or a shower chair, and assistance with hygiene methods for prisoners with physical disabilities”); Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“Modern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners.…”).
In order to comply with the ADA, public entities must, among other things, “make reasonable modifications in policies, practices, or procedures when the modifications are
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necessary to avoid discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(7). Prisons
must also ensure that prisoners with disabilities are housed in “the most integrated setting
appropriate to the needs of the individuals” and in cells “with the accessible elements necessary
to afford the inmate access to safe, appropriate housing.” 28 C.F.R. § 35.152(b)(2)-(3).
Correctional facilities must also implement “some form of [disability] tracking system … in
order to enable [them] to comply with the [ADA].” Armstrong, 275 F.3d at 876. Based on the
clear language of the ADA and its implementing regulations, questions common to the Disability
Subclass include, but are not limited to, the following:
 Do the NDCS Defendants, through their disability-related policies and practices, or lack thereof (including but not limited to: tracking and identification; housing; provision of assistive devices and auxiliary aids; access to programming including exercise, religious services, educational, vocational, and rehabilitative programs; effective communication; and disability related request and grievance process) deny qualified prisoners with disabilities access to NDCS programs, services and activities or otherwise discriminate against qualified prisoners with disabilities?
 Do the BOP Defendants, through their disability-related policies and practices, or lack thereof (including but not limited to: tracking and identification; provision of reasonable modifications; provision of accessible alternative formats; use of disability-related criteria as basis for denying parole; physical accessibility of facilities used for paroleprocess related events; effective communication; and disability related request process) deny qualified prisoners with disabilities access to BOP programs, services and activities or otherwise discriminate against qualified prisoners with disabilities? All of the questions listed above depend on common contentions and are not affected by
the circumstances of any individual class member. Thus, such questions are capable of
generating common answers and hence are appropriate for class-wide resolution. Dukes, 564
U.S. at 350.
C. The Typicality Requirement of Rule 23(a)(3) is Satisfied Because the Named Plaintiffs Have Claims Sufficiently Typical of the Class and Subclasses They Seek to Represent
To meet the typicality requirement, the claims of the named plaintiffs must be “typical of
the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The Rule “requires a
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demonstration that there are other members of the class who have the same or similar grievances as the plaintiff.” Paxton v. Union Nat. Bank, 688 F.2d 552, 562 (8th Cir. 1982) (quoting Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir. 1977)). “Typicality ‘is fairly easily met so long as other class members have claims similar to the named plaintiff.’” Postawko, 910 F.3d at 1039 (quoting DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995)). “Factual variations in the individual claims will not normally preclude class certification if the claim arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory.” Id. (quoting Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996)). Further, in a “suit for prospective injunctive and declaratory relief, the potential for minor factual variations does not undermine the … conclusion that the violation allegedly suffered by the Named Plaintiffs is typical of that suffered by the class as a whole.” Postawko, 910 F.3d at 1039 (internal quotations omitted). Here, the named Plaintiffs’ claims and the class claims arise from the same course of conduct: Defendants’ centralized policies and practices regarding health care, mental health care, dental care, use of isolation, and disability access, including in the context of the parole process.
The claims of the Named Plaintiffs meet the typicality requirement, as they have all suffered the same injuries as the absent class members that they seek to represent, and those injuries have been, and continue to be, caused by the same policies and practices of Defendants that harm the class and subclasses as a whole. The 11 Plaintiffs are 8 men and 3 women. They have been housed in most, if not all, NDCS facilities. See Filing 249-1, Declaration of Dylan Cardeilhac (“Cardeilhac Decl.”) ¶ 2; Filing 249-2, Declaration of Isaac Reeves (“Reeves Decl.”) ¶ 2; Filing 249-3, Declaration of Richard Griswold (“Griswold Decl.”) ¶ 2; Filing 249-4, Declaration of Michael Gunther (“Gunther Decl.”) ¶ 2; Filing 249-12, Declaration of Zoe Rena (“Rena Decl.”) ¶ 2; Filing 249-15, Declaration of Hannah Sabata (“Sabata Decl.”) ¶ 2; Filing
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249-21, Declaration of James Curtright (“Curtright Decl.”) ¶ 3; Filing 249-26, Declaration of Jason Galle (“Galle Decl.”) ¶ 3; Filing 249-34, Declaration of Brandon Sweetser (“Galle Decl.”) ¶ 3; Filing No 160-24, Declaration of Angelic Norris in Support of Plaintiffs’ Opposition to Defendants Motion for Summary Judgment (Norris MSJ Decl.) ¶ 2. Collectively, they have been injured by every systemic deficiency discussed herein, including in the contexts of medical care, mental health care, dental care, use of isolation, and in the provision of reasonable modifications for prisoners with disabilities. See Filing 249-1 (Cardeilhac Decl.) ¶¶ 2-20; Filing 249-2 (Reeves Decl.”) ¶¶ 2-19; Filing 249-3 (Griswold Decl.) ¶¶ 2-24; Filing 249-4 (Gunther Decl.) ¶¶ 2-20; Filing 249-12 (Rena Decl.) ¶¶ 2-14; Filing 249-15 (Sabata Decl.) ¶¶ 2-14; Filing 249-21 (Curtright Decl.) ¶¶ 2-30; Filing 249-26 (Galle Decl.) ¶¶ 2-25; Filing 249-34 (Sweetser Decl.) ¶¶ 2-26; Filing 160-24 (Norris MSJ Decl.) ¶¶ 12-13, 15-17; Filing 160-25 (Norris Affidavit) ¶¶ 2-8. As discussed in Section I and II, Defendants NDCS and BOP’s policies and procedures, or lack thereof, apply equally to all prisoners across all NDCS facilities. All of the named Plaintiffs and the putative class and subclass members share a common injury of having these centralized policies and practices applied to them and, as a result, all are exposed to the same substantial risk of serious harm. Named Plaintiffs’ claims are therefore typical because they are each exposed to the same risks of harm as the class they seek to represent. Id.
D. The Proposed Class Representatives and Class Counsel Will Fairly and Adequately Represent the Interests of the Class and Subclasses
The final requirement of Rule 23(a) is that the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). The adequacy requirement is met where: “(1) the representatives and their attorneys are able and willing to prosecute the action competently and vigorously; and (2) each representative's interests are sufficiently similar to those of the class that it is unlikely that their goals and viewpoints will diverge.” Beckmann v. CBS, Inc., 192 F.R.D. 608, 614 (D. Minn. 2000). This requirement “serves to uncover conflicts
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of interest between named parties and the class they seek to represent.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997).
1. Proposed Class Representatives The named Plaintiffs, the Class, and the Subclass raise the same claims giving rise to common questions of fact and law. As this case seeks only injunctive and declaratory relief, no named Plaintiffs have interests that are antagonistic to the interests of the Class or the Subclasses. See Hernandez v. Cty. of Monterey, 305 F.R.D. 132, 160 (N.D. Cal. 2015) (“Class representatives have less of risk of conflict with unnamed class members when they seek only declaratory and injunctive relief.”); New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007) (“Conflicts of interest are rare in Rule 23(b)(2) class actions seeking only declaratory and injunctive relief.”). All of the named Plaintiffs share a common interest with members of the proposed NDCS Class of ensuring that prisoners in the custody of NDCS receive adequate health care, including adequate medical, dental, and mental health care. Further, the named Plaintiffs share a common interest with members of the proposed Isolation Subclass of limiting the use of isolation and amelioration of its well-documented harmful effects. Finally, all named Plaintiffs with disabilities share a common interest of ensuring NDCS and BOP provide legally required reasonable modifications to allow prisoners with disabilities to enjoy meaningful access to NDCS and BOP programs, services, or activities. There are no conflicts between the named Plaintiffs and the proposed NDCS Class, Isolation Subclass, or Disability Subclass, and the named Plaintiffs will fairly and adequately protect the interests of the Class and the Subclasses.
2. Plaintiffs’ Counsel Meet the Requirements of Rule 23(g) and Should Be Appointed Class Counsel
Rule 23(g) requires that the district court appoint class counsel for any class that is certified. See Rule 23(g)(1). The attorneys appointed to serve as class counsel must “fairly and
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adequately represent the interests of the class.” Rule 23(g)(1)(B). The appointed class counsel must be listed in the Court’s class certification order. Rule 23(c)(1)(B). The Rule identifies four factors that the Court must consider in appointing class counsel: (1) “the work counsel has done in identifying or investigating potential claims in the action;” (2) “counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;” (3) “counsel’s knowledge of the applicable law;” and (4) “the resources that counsel will commit to representing the class.” Rule 23(g)(1)(A).
Adequacy of class counsel is met here because the undersigned attorneys’ experience ensures that they will fairly and adequately protect the interests of the class. Plaintiffs’ counsel includes four non-profit organizations—the ACLU National Prison Project, the ACLU of Nebraska, Nebraska Appleseed, and the National Association of the Deaf—as well as two private law firms, DLA Piper LLP (US) and Rosen Bien Galvan & Grunfeld, LLP. Plaintiffs’ counsel has significant experience with class action lawsuits generally, and with large class action lawsuits regarding conditions in correctional facilities, including in the contexts of healthcare, isolation, and the rights of prisoners with disabilities. Filing 249-62, Declaration of David Fathi (“Fathi Decl.”) ¶¶ 2-4; Filing 249-64, Declaration of Amy Miller (“Miller Decl.”) ¶¶ 2-5; Filing 249-66, Declaration of Christopher Young (“Young Decl.”) ¶¶ 2-5; Filing 249-68, Declaration of Anna Bitencourt (“Bitencourt Decl.”) ¶¶ 2-7; Filing 249-70, Declaration of Robert McEwen (“McEwen Decl.”) ¶¶ 2-6; Filing 249-72, Declaration of Ernest Galvan (“Galvan Decl.”) ¶¶ 2-4. Plaintiffs’ counsel have already committed, and will continue to commit, considerable resources to identifying issues, investigating potential claims, and prosecuting this action. Filing 249-62 (Fathi Decl.) ¶ 5; Filing 249-64 (Miller Decl.) ¶ 5; Filing 249-66 (Young Decl.) ¶ 5; Filing 249-68 (Bitencourt Decl.) ¶ 7; Filing 249-70 (McEwen Decl.) ¶ 6; Filing 249-72 (Galvan Decl.) ¶ 4. Further, no conflicts or collusion exist between counsel,
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Plaintiffs, and the proposed class members that would compromise their ability to represent the class. Filing 249-62 (Fathi Decl.) ¶¶ 2-5; Filing 249-64 (Miller Decl.) ¶¶ 2-5; Filing 249-66 (Young Decl.) ¶¶ 2-5; Filing 249-68 (Bitencourt Decl.) ¶¶ 2-7; Filing 249-70 (McEwen Decl.) ¶¶ 2-6; Filing 249-72 (Galvan Decl.) ¶¶ 2-4. IV. Plaintiffs and the Proposed Class and Subclasses meet the Requirements of Rule
23(b)(1) and (b)(2) In addition to satisfying Rule 23(a), a class action must meet the requirements of one of the provisions of Rule 23(b). While the Plaintiffs need only satisfy one of Rule 23(b)’s subsections, the Court here can certify the Class and Subclasses under either Rule 23(b)(1) or (b)(2). A. Certification Is Appropriate Under Rule 23(b)(1) Plaintiffs seek certification under Rule 23(b)(1)(A) and 23(b)(1)(B). Under 23(b)(1)(A), class certification is appropriate if the prosecution of separate actions by individual members of the class would create the risk of “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). A “core example” of such an action is a “situation in which many individuals, all challenging a single government policy, bring separate suits for injunctive relief.” Newberg on Class Actions § 4:11 (5th ed.). Here, there are over 5,000 individual prisoners incarcerated in NDCS facilities at any given time who are affected by the challenged policies and each one could file suit for injuries arising from these systemwide policies. Thus, certification is appropriate under 23(b)(1)(A) because if each member of the proposed class litigated their claims individually there would be a risk that each individual case would impose a different standard on Defendants. See, e.g., Ashker v. Governor of State of California, 2014 WL 2465191, at *7 (N.D. Cal. June 2, 2014) (certifying prisoner class under Rule 23(b)(1)(A) to avoid risk of inconsistent judgments); Franklin v.
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Barry, 909 F. Supp. 21, 31 (D.D.C. 1995) (same); see also Berry v. Baca, 226 F.R.D. 398, 40506 (C.D. Cal. 2005) (noting that certification of prisoner class under Rule 23(b)(1)(A) is appropriate to avoid inconsistent adjudications in individual suits, but denying class certification without prejudice based on lack of numerosity). Accordingly, the requirements for certification under 23(b)(1)(A) are met.
Certification under 23(b)(1)(B) is appropriate when prosecuting “separate actions by or against individual class members would create a risk of … adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1)(B). This rule has been applied in actions by prisoners challenging the conditions of their confinement. See Hilton v. Wright, 235 F.R.D. 40, 53 (N.D.N.Y. 2006) (certification of prisoner class challenging prison's Hepatitis C treatment policy under 23(b)(1)(B)); Ingles v. City of New York, 2003 WL 402565, at *7-8 (S.D.N.Y. Feb. 20, 2003) (certification under 23(b)(1)(B) of class of prisoners challenging prison's use of force policy and seeking injunctive relief); Coleman v. Wilson, 912 F. Supp. 1282, 1293 (E.D. Cal.1995) (certification of prisoner class challenging prison's mental health care policies under 23(b)(1)(B)).
Here, the NDCS Class and Isolation and Disability Subclasses seek injunctive relief that, if granted, would affect the rights of similarly situated potential plaintiffs who are affected by the same systemwide policies. If Plaintiffs do not succeed on their claims, the ability of future plaintiffs to challenge the same practice will be inhibited under stare decisis. See Riley v. Nevada Supreme Court, 763 F. Supp. 446, 453 (D. Nev. 1991) (certifying class of prisoners sentenced to death challenging state court policies under 23(b)(1)(B) because “collateral estoppel would not bind a subsequent plaintiff to a finding of constitutionality. However, if the
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subsequent plaintiff ended up in this particular court, our previous finding of constitutionality would bind the subsequent plaintiff as a practical matter because of stare decisis.”). Accordingly, the requirements for certification under 23(b)(1)(B) are met.
B. Certification Is Appropriate Under Rule 23(b)(2) This case also fits squarely within Rule 23(b)(2), which authorizes class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2). Although a Rule 23(b)(2) class is not required to satisfy the additional predominance and superiority requirements of Rule 23(b)(3), “the class claims must be cohesive.” Postawko, 910 F.3d at 1039 (citing Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1035 (8th Cir. 2010)) (internal quotation marks omitted). Rule 23(b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief.” Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 58 (3rd Cir. 1994); see also Postawko, 910 F.3d at 1039-1040 (finding district court did not abuse its discretion in “holding that sufficient evidence of a common policy existed to comply with Rule 23(b)(2)” in case involving “claims that the Defendants [Missouri Department of Corrections] uniformly applied a screening and treatment policy for HCV [Hepatitis C Virus] that was so inadequate that it amounted to a constitutional violation as to each and every incarcerated person who either suffered or will suffer from HCV”); Bradley v. Harrelson, 151 F.R.D. 422, 427 (M.D. Ala. 1993) (subsection (b)(2) “is particularly applicable to suits … involv[ing] conditions of confinement in a correctional institution.”). Indeed, cases where a group of prisoners seek to challenge the lawfulness of prison policies are so well suited for Rule 23(b)(2) class treatment that the leading class-action and federal-practice treatises both use it as the exemplar of a case fitting within that subsection: “For example, if a prisoner in a prison conditions lawsuit secures a ruling that a
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prison policy violates the Constitution, the court-ordered injunctive relief will necessarily apply to all other prisoners.” 1 H. Newberg & A. Conte, Newberg on Class Actions § 4.34 (5th ed. 2016 update); see also Wright & Miller, 7AA Fed. Prac. & Proc. Civ. § 1776.1 (3d ed. 2017 update) (same).
Here, Defendants’ policies apply generally to the NDCS Class, and to the proposed Isolation and Disability Subclasses, such that the requested injunctive and declaratory relief would provide relief to all class and subclass members. Plaintiffs have produced significant evidence demonstrating the broken nature of Nebraska’s prison system and parole process. Pursuant to Defendants’ policies and practices, or lack thereof: (1) the NDCS Class is subjected to a health care system that places them at substantial risk of serious harm, including unnecessary injury, illness, and death (see Section I(B)); (2) the Isolation Subclass is similarly put at substantial risk of serious harm due to Defendants’ use of isolation (see Section (I)(C)); and (3) the Disability Subclass is denied meaningful access to vital programs, services, and activities of the NDCS and BOP on the basis of their disabilities (see Sections I(D), II). To remedy these constitutional and statutory violations, Plaintiffs seek only injunctive and declaratory relief, as outlined in Plaintiffs’ prayer for relief. Filing No. 1 ¶¶ 278-284. Accordingly, the requirements of Rule 23(b)(2) are met. / / / / / / / / / / / / / / / / / / / / /
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CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court enter the Proposed Order Granting Plaintiffs’ Motion for Class Certification and appointing the undersigned as class

counsel.

Submitted February 19, 2019.

ACLU NATIONAL PRISON PROJECT ACLU OF NEBRASKA DLA PIPER LLP (US) NATIONAL ASSOCIATION OF THE DEAF NEBRASKA APPLESEED ROSEN BIEN GALVAN & GRUNFELD LLP

By: /s/ Kara Janssen
Kara Janssen (Cal Bar No. 274762) Admitted Pro Hac Vice Attorney for Plaintiffs ROSEN BIEN GALVAN & GRUNFELD LLP 101 Mission Street, 6th Floor San Francisco, California 94105-2235 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 Email: kjanssen@rbgg.com

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4:17-cv-03107-RFR-MDN Doc # 250 Filed: 02/19/19 Page 53 of 53 - Page ID # 14894 CERTIFICATE OF SERVICE
I hereby certify that on February 19, 2019, I electronically filed the foregoing document with the Clerk of the United States District Court for the District of Nebraska, causing notice of such filing to be served upon all parties registered on the CM/ECF system.
By: /s/ Kara Janssen
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UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et. al,

Case No. 4:17-cv-03107-RFR-MDN

Plaintiffs,

CLASS ACTION

v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et. al,

EXPERT DECLARATION OF CRAIG HANEY, PH.D., J.D., IN SUPPORT OF CLASS CERTIFICATION

Defendants.

I, Craig Haney, Ph.D., J.D., declare as follows: I. Expert Qualifications
1. I am a Distinguished Professor of Psychology and the UC Presidential Chair at the University of California, Santa Cruz. My area of academic specialization is in what is generally termed “psychology and law,” which is the application of psychological data and principles to legal issues. I teach graduate and undergraduate courses in social psychology, psychology and law, and research methods. I received a bachelor’s degree in psychology from the University of Pennsylvania, an M.A. and Ph.D. in Psychology and a J.D. degree from Stanford University, and I have been the recipient of a number of scholarship, fellowship, and other academic awards.
2. I have published numerous scholarly articles and book chapters on topics in law and psychology, including encyclopedia and handbook chapters on the backgrounds and social histories of persons accused of violent crimes, the psychological effects of imprisonment, and the nature and consequences of solitary or “supermax”-type confinement. In addition to these scholarly articles and book chapters, I have published two books: Death by Design: Capital Punishment as a Social Psychological System (Oxford University Press, 2005) and Reforming

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Punishment: Psychological Limits to the Pains of Imprisonment (American Psychological Association Books, 2006).
3. In the course of my academic work in psychology and law, I have lectured and given invited addresses throughout the country on the role of social and institutional histories in explaining criminal violence, the psychological effects of living and working in institutional settings (typically maximum security prisons), and the psychological consequences of solitary confinement. I have given these lectures and addresses at various law schools, bar associations, university campuses, and numerous professional psychology organizations such as the American Psychological Association.
4. I also have served as a consultant to numerous governmental, law enforcement, and legal agencies and organizations on jail- and prison-related issues. Those agencies and organizations include the Palo Alto Police Department, various California Legislative Select Committees, the National Science Foundation, the American Association for the Advancement of Science, the United States Department of Justice, the Department of Health and Human Services (HHS), the Department of Homeland Security, and the White House (under both the Clinton and Obama Administrations). In 2012, I testified as an expert witness before the Judiciary Committee of the United States Senate and was appointed as a member of a National Academy of Sciences committee analyzing the causes and consequences of high rates of incarceration in the United States. (A copy of my curriculum vitae is attached to this Declaration as Exhibit 1.)
5. My academic interest in the psychological effects of various prison conditions is long-standing and dates back to 1971, when I was still a graduate student. I was one of the principal researchers in what has come to be known as the “Stanford Prison Experiment,” in which my colleagues Philip Zimbardo, Curtis Banks, and I randomly assigned normal,

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psychologically healthy college students to the roles of either “prisoner” or “guard” within a simulated prison environment that we had created in the basement of the Psychology Department at Stanford University. The study has since come to be regarded as a “classic” study in the field, demonstrating the power of institutional settings to change and transform the people who enter them.1
6. Since then I have been studying the psychological effects of living and working in real (as opposed to simulated) institutional environments, including juvenile facilities, mainline adult prison and jail settings, and specialized correctional housing units (such as solitary and “supermax”-type confinement). In the course of that work, I have toured and inspected numerous maximum security state prisons and related facilities (in Alabama, Arkansas, Arizona, California, Florida, Georgia, Idaho, Illinois, Louisiana, Massachusetts, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, and Washington), many maximum security federal prisons (including the Administrative Maximum or “ADX” facility in Florence, Colorado), and prisons in Canada, Cuba, England, Hungary, and Mexico. I also have conducted numerous interviews with correctional officials, guards, and prisoners to assess the impact of penal confinement, and statistically analyzed aggregate data from numerous correctional documents and official records to examine the effects of specific

1 For example, see Craig Haney, Curtis Banks & Philip Zimbardo, Interpersonal Dynamics in a Simulated Prison, 1 International Journal of Criminology and Penology 69 (1973); Craig Haney & Philip Zimbardo, The Socialization into Criminality: On Becoming a Prisoner and a Guard, in Law, Justice, and the Individual in Society: Psychological and Legal Issues. (J. Tapp and F. Levine, eds., 1977); and Craig Haney & Philip Zimbardo, Persistent Dispositionalism in Interactionist Clothing: Fundamental Attribution Error in Explaining Prison Abuse, Personality and Social Psychology Bulletin, 35, 807-814 (2009).

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conditions of confinement on the quality of prison life and the ability of prisoners to adjust to
them.2
7. I have been qualified and have testified as an expert in various federal courts,
including United States District Courts in Alabama, Arkansas, California, Georgia, New Mexico,
Pennsylvania, Texas, and Washington, and in numerous state courts, including courts in Arizona,
Colorado, Florida, Montana, New Jersey, New Mexico, Ohio, Oregon, Tennessee, Utah, and
Wyoming as well as, in California, the Superior Courts of Alameda, Calaveras, Kern, Los
Angeles, Marin, Mariposa, Monterey, Orange, Sacramento, San Diego, San Francisco, San
Mateo, Santa Clara, Santa Cruz, Shasta, Tulare, Ventura, and Yolo counties. My research,
writing, and testimony have been cited by state courts, including the California Supreme Court,
and by Federal District Courts, Circuit Courts of Appeal, and the United States Supreme Court.3
II. Nature and Basis of Expert Opinion
8. I have been retained by counsel for the plaintiffs in Sabata v. Nebraska
Department of Correctional Services, et al. to provide expert opinions on three inter-related
2 For example, Craig Haney & Philip Zimbardo, The Socialization into Criminality: On Becoming a Prisoner and a Guard, in Law, Justice, and the Individual in Society: Psychological and Legal Issues (pp. 198-223). (J. Tapp and F. Levine, eds., 1977); Craig Haney, Infamous Punishment: The Psychological Effects of Isolation, 8 National Prison Project Journal 3 (1993); Craig Haney, Psychology and Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law, Psychology, Public Policy, and Law, 3, 499-588 (1997); Craig Haney, The Consequences of Prison Life: Notes on the New Psychology of Prison Effects, in D. Canter & R. Zukauskiene (Eds.), Psychology and Law: Bridging the Gap (pp. 143-165). Burlington, VT: Ashgate Publishing (2008); Craig Haney, On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence, University of Missouri-Kansas City Law Review, 77, 911946 (2009); Craig Haney, Demonizing the “Enemy”: The Role of Science in Declaring the “War on Prisoners,” Connecticut Public Interest Law Review, 9, 139-196 (2010); Craig Haney, The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement, American Criminal Law Review, 48, 121-141 (2011) [Reprinted in: S. Ferguson (Ed.), Readings in Race, Ethnicity, Gender and Class. Sage Publications (2012)]; and Craig Haney, Prison Effects in the Age of Mass Imprisonment, The Prison Journal, 92, 1-24 (2012).
3 For example, see Brown v. Plata, 563 U.S. 493 (2011); see also Exhibit 1 for a list of cases citing my work.

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topics: a) a summary of what is known about the negative psychological consequences of solitary or isolated confinement (or what is known in Nebraska as “restrictive housing”); b) an explanation of whether and how those negative consequences can be exacerbated for prisoners who are suffering from serious mental illness (“SMI”);4 and, finally, c) based on the casespecific discovery that I have been provided and reviewed, the extent to which prisoners housed in the Nebraska Department of Correctional Services (“NDCS”), including those who suffer from SMI, are subjected to solitary-type confinement that may place them at a serious risk of psychological harm.
9. My opinions on these topics are based on a number of sources. In addition to my own direct experience interviewing and evaluating prisoners housed in restrictive housing

4 The NDCS regulations offer two generally similar but non-identical definitions of serious (or major) mental illness. Administrative Regulation (“AR”) 210.01 defines “serious mental illness” as “[a]ny mental health condition that current medical science affirms is caused by a biological disorder of the brain and that substantially limits the life activities of the person with the serious mental illness. Serious mental illness includes, but is not limited to (1) schizophrenia, (2) schizoaffective disorder, (3) delusional disorder, (4) bipolar affective disorder, (5) major depression, and (6) obsessive compulsive disorder.” NDCS025022. This regulation cites to NEB. REV. STAT. § 44-792, which defines serious mental illness the same way. However, AR 115.23 VI defines “major mental illness” as a DSM-V diagnosis of one of a number of disorders, or as a DSM-V diagnosis of one of the following, with high severity (i.e., significant functional impairment): “Depressive Disorder, other Mood Disorder, Posttraumatic Stress Disorder, Obsessive Compulsive Disorder, Panic Disorder, or other Anxiety Disorder”. PLAINTIFF0006671. Here I rely on the definition of serious mental illness or SMI in operation in AR 210.01. Generally, it includes persons with a current diagnosis or significant recent history of types of DSM-IV-TR Axis I diagnoses (including schizophrenia, delusional disorder, schizophreniform disorder, schizoaffective disorder, brief psychotic disorder, psychotic disorder not otherwise specified, major depressive disorders, and bipolar disorder I and II); persons who suffer from other diagnosed Axis I psychiatric disorders commonly characterized by breaks with reality, or perceptions of reality, or that lead the individual to experience significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health; and persons diagnosed with severe personality disorders that are manifested by episodes of psychosis or depression, and result in significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.

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(including some who were suffering from SMI) in Nebraska, I reviewed the extensive published literature that addresses the psychological effects of solitary confinement. In addition, I requested and have been provided with a set of official documents that pertain to the use of solitary confinement within the NDCS. The discovery documents that I reviewed include: various official NDCS documents (including administrative regulations pertaining to restrictive housing and special needs inmate programs, annual reports, operational memoranda, and Inmate Handbooks); portions of the institutional files (including the mental health records) and document summaries for the prisoners whom I interviewed at each facility; and several overview reports [including the NDCS Restrictive Housing Report (dated September 14, 2018),5 the 2017/2018 Office of Inspector General Annual Report on the Nebraska Prison System [hereinafter OIG Annual Report],6 and an Office of Inspector General Supplemental Report on the Nebraska Penitentiary (dated October 11, 20187)]. A document index that contains a detailed list of all of the documents I have reviewed is attached to this Declaration as Exhibit 2.
10. In addition, I toured and inspected several NDCS facilities where restrictive housing units are located.8 Specifically, on October 15, 2018, I toured and inspected the

5 PLAINTIFF0019271-303.
6 PLAINTIFF0018989-9270.
7 PLAINTIFF0019420-51.
8 Isolated prisoners in the NDCS can be designated as either “Immediate Segregation” (“IS”), which means their isolated confinement is initially reviewed within 15 days, but can last as long as 60 days, AR 210.01 III(D)(2), G, NDCS025025-26, or as “Longer Term Restrictive Housing” (“LTRH”), which is a classification allowing NDCS to place a prisoner in restrictive housing for a longer time period. NDCS025026-27. LTRH placement is reviewed every 90 days for the first year and then every 30 days thereafter. AR 210.01 IV(B)(4)(b), 6. NDCS025029-30. In addition, prisoners who are deemed seriously mentally ill and in need of “residential mental health treatment” but whom the NDCS believes require segregated housing can be placed in the “Secure Mental Health Unit” or (“SMHU”) at the Lincoln Correctional Center. AR 210.01 VII(A). NDCS025031.

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Tecumseh State Correctional Institution (“TSCI”) and interviewed a sample of prisoners there; on October 16, 2018, I toured and inspected the Lincoln Correctional Center (“LCC”) and interviewed a sample of prisoners there; on October 17, 2018, I inspected the Nebraska State Penitentiary (“NSP”) and interviewed a sample of prisoners there; and, finally, on October 18, 2018, I inspected the Nebraska Correctional Center for Women (“NCCW”) and interviewed a sample of prisoners there. In the course each of these facility visits, I conducted multiple kinds of interviews, including brief “cell-front” interviews with prisoners whom I encountered in the course of the inspections. In addition, I conducted separate confidential interviews with individual prisoners, all of whom are named plaintiffs in this case. At each of these facilities I was also able to question staff regarding operations, practices and policies. Finally, I spent some time at the end of each day reviewing both named plaintiff and non-named plaintiff prisoners’ files (primarily the mental health portions of their records).
11. The face-to-face interviews with isolated NDCS prisoners housed in the various restrictive housing units that I toured included prisoners classified as Immediate Segregation (“IS”) and Longer-Term Restrictive Housing (“LTRH”), and those in the Secure Mental Health Unit (“SMHU”). Some of those interviews were briefer and conducted cell front, and others were longer, confidential interviews conducted in a private setting at the prison.
12. By way of summary, it is my expert opinion that being housed in solitary or isolated confinement can produce a number of negative psychological effects and places prisoners at significant risk of serious psychological harm. I believe that these effects are now well understood and described in the scientific literature. Scientific knowledge of these effects derives from numerous empirical studies. The findings are “robust”—that is, they come from studies that were conducted by researchers and clinicians from diverse backgrounds and perspectives, were completed and published over a period of many decades, and are empirically

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very consistent. With remarkably few exceptions, virtually every one of these studies has documented the pain and suffering that isolated prisoners endure and the risk of psychological harm that they confront.
13. In addition, the empirical conclusions are theoretically sound. That is, there are numerous widely accepted theoretical reasons to expect that long-term isolation, the absence of meaningful social interaction and activity, and the other severe deprivations that are common under conditions of isolated or solitary confinement would have harmful psychological consequences. Those conditions and experiences are known to produce adverse psychological effects in contexts other than prison and it makes perfect theoretical sense that they produce similar outcomes in correctional settings.
14. There are also sound theoretical reasons to expect that prisoners who suffer from SMI would have a more difficult time tolerating the painful experience of isolation or solitary confinement. This is in part because of the greater vulnerability of the mentally ill in general to stressful, traumatic conditions, and in part because some of the extraordinary conditions of isolation adversely impact the particular symptoms from which mentally ill prisoners suffer (such as depression) or directly aggravate aspects of their pre-existing psychiatric conditions.
15. It is also my opinion that the conditions of confinement in the NDCS isolation units that I observed in the facility tours and inspections I undertook and as described in the interviews of NDCS prison staff and prisoners that I conducted, and as reflected in the NDCS policies and practices I reviewed, are exactly the type of conditions that my own experience and study and decades of scientific research have found to place all prisoners at significant risk of serious harm, regardless of their pre-existing mental health status. As such, all NDCS prisoners are at significant risk of serious psychological harm as a result of the isolation conditions, practices, and policies to which they are subjected.

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16. Despite the expressed intentions of the NDCS to significantly reform its isolated housing practices, the conditions that I observed were ones that subjected prisoners to severe forms of social isolation and other deprivations. Moreover—again, notwithstanding the expressed intentions of NDCS officials—the Nebraska prison system’s use of “restrictive housing” is increasing, not decreasing. At the Nebraska State Penitentiary, for example, where, as I will describe later in this Declaration, conditions are especially problematic, the population of prisoners in restrictive housing has increased fully 43% between 2016 and 2018 (rising from an average daily population of 84.49 in 2016 to 120.29 in 2018).9
17. I should note that my opinions concerning the use, nature, and effects of isolated confinement in the NDCS are partial and preliminary. It is my understanding that additional information will be forthcoming during the course of this litigation. For example, to date I have been able to tour a total of four NDCS facilities, to interview only a limited number of staff and prisoners, and to review only a select number of prisoner files and other documents. Based on the tours and interviews I have conducted, and the documents and materials that I have reviewed, I am confident in the preliminary opinions that I have formulated about NDCS’s isolation conditions, practices, and policies. However, I anticipate that these opinions will be further developed and supplemented as more information becomes available. III. The Adverse Psychological Effects of Isolation
18. “Solitary confinement” and “restrictive housing” are terms of art in correctional practice and scholarship, but they mean essentially the same thing. For perhaps obvious reasons, total and absolute solitary confinement—literally complete isolation from any form of human

9 See NDCS Restrictive Housing Annual Report at 5. PLAINTIFF0019276. The use of restrictive housing at NSP and elsewhere has increased despite the fact that the prison population in NDCS custody has remained constant over the past few years. See OIG Report at 38. PLAINTIFF0019027.

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contact—does not exist in prison and never has. Instead, the term is generally used to refer to conditions of extreme (but not total) isolation from others. In Nebraska, the legislature has defined “restrictive housing” as “conditions of confinement that provide limited contact with other offenders, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week” NEB. REV. ST. § 83-170(13). This definition is consistent with the type of conditions typically considered “solitary confinement” in the literature and jurisdictions across the country.
19. Although research indicates that solitary confinement fails to accomplish its alleged goal, it is presumably designed to limit and control violence by keeping prisoners isolated from one another. Unfortunately, it also subjects prisoners to especially harsh and deprived conditions of isolated confinement that place prisoners at a significant risk of serious psychological harm. As a general matter, psychologists know from numerous studies conducted in settings outside prison that social isolation, social exclusion, and loneliness in general are potentially very harmful and can cause irreparable damage to a person’s overall psychological and physical functioning.10 Not only is there no reason to believe that these conditions would be less harmful in prison but also, because of the harsh, forceful ways they are imposed in correctional settings and the other deprivations that typically accompany them, they are likely even more damaging.
20. In addition to the extensive research conducted outside of prison settings, there is a large and growing direct literature on the many ways that solitary confinement per se can very seriously damage the overall mental health of prisoners. The long-term absence of meaningful

10 For example, see: Graham Thornicroft, Social Deprivation and Rates of Treated Mental Disorder: Developing Statistical Models to Predict Psychiatric Service Utilisation, British Journal of Psychiatry, 158, 475-484 (1991).

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human contact and social interaction, the enforced idleness and inactivity, and the oppressive security and surveillance procedures (and the weapons, hardware, and other paraphernalia that go along with them) all combine to create starkly deprived conditions of confinement. These conditions predictably impair the psychological functioning of many prisoners who are subjected to them.11 The measured effects are cognitive, emotional, and behavioral in nature and, for some prisoners, the resulting impairments can be permanent and life-threatening.
21. In the admitted absence of a single “perfect” study of the phenomenon,12 the substantial body of published literature clearly documents the distinctive patterns of

11 For example, see: Bruce Arrigo & J. Bullock, The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units: Reviewing What We Know and What Should Change, International Journal of Offender Therapy and Comparative Criminology, 52, 622-640 (2008); Kristin Cloyes, David Lovell, David Allen & Lorna Rhodes, Assessment of Psychosocial Impairment in a Supermaximum Security Unit Sample, Criminal Justice and Behavior, 33, 760781 (2006); Stuart Grassian, Psychiatric Effects of Solitary Confinement, Washington University Journal of Law & Policy, 22, 325-383 (2006); Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement. Crime & Delinquency, 49, 124-156 (2003); Craig Haney, Restricting the Use of Solitary Confinement, Annual Review of Criminology, 1, 285-310 (2018); Craig Haney & Mona Lynch, Regulating Prisons of the Future: The Psychological Consequences of Solitary and Supermax Confinement, New York Review of Law & Social Change, 23, 477-570 (1997); and Peter Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, in Michael Tonry (Ed.), Crime and Justice (pp. 441-528). Volume 34. Chicago: University of Chicago Press (2006). There are a few outlier studies that purport to find few if any negative effects. For a detailed discussion of the serious methodological flaws that plague these studies, see: Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, Crime and Justice, 47, 365-416 (2018).

12 The “perfect” study of the effects of solitary confinement is relatively straightforward to design but impossible to implement. It would include: dividing a representative sample of prisoners (who had never been in solitary confinement) into two groups by randomly assigning half to either a treatment condition (a significant period in solitary confinement) or a control condition (the same length of time residing in a typical prison housing unit), and conducting longitudinal assessments of both groups (i.e., before, during, and after their experiences), by impartial researchers skilled at gaining the trust of prisoners (including ones perceived by the prisoner-participants as having absolutely no connection to the prison administration), in a fashion that minimized or eliminated “practice effects” (that come about as a result of repeated testing). Unfortunately, the realities of prison life and the practical and ethical challenges of conducting research in prisons render such a study impossible to ever conduct. Moreover, any prison system that allowed truly independent, experienced researchers to perform even a

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psychological harm that can and do occur when persons are placed in solitary confinement. These broad patterns have been consistently identified in personal accounts written by persons confined in isolation, in descriptive studies authored by mental health professionals who worked in many such places, and in systematic research conducted on the nature and effects of solitary confinement. The studies span a period of over many decades, and were conducted in locations across several continents by researchers with different professional expertise, ranging from psychiatrists to sociologists and architects.13
22. For example, mental health and correctional staff who have worked in disciplinary segregation and isolation units have reported observing a range of problematic symptoms manifested by the prisoners confined in these places.14 The authors of one of the early studies of solitary confinement summarized their findings by concluding that “[e]xcessive deprivation of liberty, here defined as near complete confinement to the cell, results in deep emotional disturbances.”15

reasonable approximation of such a study would be, almost by definition, so atypical as to call the generalizability of the results into question. Keep in mind also that the assessment process itself—depending on who carried it out, how often it was done, and in what manner—might well provide the solitary confinement participants with more meaningful social contact than they are currently afforded in a number of such units with which I am familiar, thereby significantly changing (and improving) the conditions of their confinement.

13 For example, see the studies referenced in the review articles listed in footnote 11 above.

14 Here, too, discussions of and citations to these studies appear in the review articles listed in footnote 11 above

15 Bruno Cormier & Paul Williams, Excessive Deprivation of Liberty, Canadian Psychiatric Association Journal, 11, 470-484 (1966), at p. 484. For other early studies of solitary confinement, see: Paul Gendreau, N. Freedman, G. Wilde, & George Scott, Changes in EEG Alpha Frequency and Evoked Response Latency During Solitary Confinement, Journal of Abnormal Psychology, 79, 54-59 (1972); George Scott & Paul Gendreau, Psychiatric Implications of Sensory Deprivation in a Maximum Security Prison, Canadian Psychiatric Association Journal, 12, 337-341 (1969); Richard H. Walters, John E. Callagan & Albert F. Newman, Effect of Solitary Confinement on Prisoners, American Journal of Psychiatry, 119, 771-773 (1963).

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23. A decade later, Professor Hans Toch’s large-scale psychological study of prisoners “in crisis” in New York State correctional facilities included important observations about the effects of isolation.16 After he and his colleagues had conducted numerous in-depth interviews of prisoners, Toch concluded that “isolation panic” was a serious problem in solitary confinement. The symptoms that Toch reported included rage, panic, loss of control and breakdowns, psychological regression, and a build-up of physiological and psychic tension that led to incidents of self-mutilation.17 Professor Toch noted that although isolation panic could occur under other conditions of confinement it was “most sharply prevalent in segregation.” Moreover, it marked an important dichotomy for prisoners: the “distinction between imprisonment, which is tolerable, and isolation, which is not.”18
24. More recent studies have identified other symptoms that appear to be produced by these conditions. Those symptoms include: appetite and sleep disturbances, anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations. Moreover, direct studies of prison isolation have documented an extremely broad range of harmful psychological reactions. These effects include increases in the following potentially damaging symptoms and problematic behaviors: anxiety, withdrawal, hypersensitivity, ruminations, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behavior.19

16 Hans Toch, Men in Crisis: Human Breakdowns in Prisons. Aldine Publishing Co.: Chicago (1975).

17 Id. at 54.

18 Ibid.

19 In addition to the numerous studies cited in the articles referenced supra at note 11, there is a significant international literature on the adverse effects of solitary confinement. For example, see Henri Barte, L’Isolement Carceral, Perspectives Psychiatriques, 28, 252 (1989). Barte

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25. In addition, there are correlational studies of the relationship between housing type and various kinds of incident reports in prison. They show that self-mutilation and suicide are more prevalent in isolated, punitive housing units such as administrative segregation and

analyzed what he called the “psychopathogenic” effects of solitary confinement in French prisons and concluded that prisoners placed there for extended periods of time could become schizophrenic instead of receptive to social rehabilitation. He argued that the practice was unjustifiable, counterproductive, and “a denial of the bonds that unite humankind.” In addition, see: Reto Volkart, Einzelhaft: Eine Literaturubersicht (Solitary confinement: A literature survey), Psychologie - Schweizerische Zeitschrift fur Psychologie und ihre Anwendungen, 42, 1-24 (1983) (reviewing the empirical and theoretical literature on the negative effects of solitary confinement); Reto Volkart, Adolf Dittrich, Thomas Rothenfluh, & Paul Werner, Eine Kontrollierte Untersuchung uber Psychopathologische Effekte der Einzelhaft (A controlled investigation on psychopathological effects of solitary confinement), Psychologie Schweizerische Zeitschrift fur Psychologie und ihre Anwendungen, 42, 25-46 (1983) (when prisoners in “normal” conditions of confinement were compared to those in solitary confinement, the latter were found to display considerably more psychopathological symptoms that included heightened feelings of anxiety, emotional hypersensitivity, ideas of persecution, and thought disorders); Reto Volkart, et al., Einzelhaft als Risikofaktor fur Psychiatrische Hospitalisierung (Solitary confinement as a risk for psychiatric hospitalization), Psychiatria Clinica, 16, 365-377 (1983) (finding that prisoners who were hospitalized in a psychiatric clinic included a disproportionate number who had been kept in solitary confinement); Boguslaw Waligora, Funkcjonowanie Czlowieka W Warunkach Izolacji Wieziennej (How men function in conditions of penitentiary isolation), Seria Psychologia I Pedagogika NR 34, Poland (1974) (concluding that so-called “pejorative isolation” of the sort that occurs in prison strengthens “the asocial features in the criminal’s personality thus becoming an essential cause of difficulties and failures in the process of his resocialization”). See, also, Ida Koch, Mental and Social Sequelae of Isolation: The Evidence of Deprivation Experiments and of Pretrial Detention in Denmark, in The Expansion of European Prison Systems, Working Papers in European Criminology, No. 7, 119 (Bill Rolston & Mike Tomlinson eds. 1986) who found evidence of “acute isolation syndrome” among detainees that occurred after only a few days in isolation and included “problems of concentration, restlessness, failure of memory, sleeping problems and impaired sense of time an ability to follow the rhythm of day and night” (at p. 124). If the isolated confinement persisted— “a few weeks” or more—there was the possibility that detainees would develop “chronic isolation syndrome,” including intensified difficulties with memory and concentration, “inexplicable fatigue,” a “distinct emotional lability” that can include “fits of rage,” hallucinations, and the “extremely common” belief among isolated prisoners that “they have gone or are going mad” (at p. 125). See, also: Michael Bauer, Stefan Priebe, Bettina Haring & Kerstin Adamczak, Long-Term Mental Sequelae of Political Imprisonment in East Germany, Journal of Nervous & Mental Disease, 181, 257-262 (1993), who reported on the serious and persistent psychiatric symptoms suffered by a group of former East German political prisoners who sought mental health treatment upon release and whose adverse conditions of confinement had included punitive isolation.

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security housing where prisoners are subjected to solitary-like conditions of confinement. For example, clinical researchers Ray Patterson and Kerry Hughes attributed higher suicide rates in solitary confinement-type units to the heightened levels of “environmental stress” that are generated by the “isolation, punitive sanctions, [and] severely restricted living conditions” that exist there.20 These authors reported that “the conditions of deprivation in locked units and higher-security housing were a common stressor shared by many of the prisoners who committed suicide.”21 In addition, signs of deteriorating mental and physical health (beyond self-injury), other-directed violence, such as stabbings, attacks on staff, and property destruction, and collective violence are also more prevalent in these units.22
26. The painfulness and damaging potential of extreme forms of solitary confinement is underscored by its use in so-called “brainwashing” and certain forms of torture. In fact, many of the negative effects of solitary confinement are analogous to the acute reactions suffered by

20 Raymond Patterson & Kerry Hughes, Review of Completed Suicides in the California Department of Corrections and Rehabilitation, 1999-2004, Psychiatric Services, 59, 676-682 (2008), at p. 678.
21 Ibid. See also: Lindsay M. Hayes, National Study of Jail Suicides: Seven Years Later. Special Issue: Jail Suicide: A Comprehensive Approach to a Continuing National Problem, Psychiatric Quarterly, 60, 7 (1989); Alison Liebling, Vulnerability and Prison Suicide, British Journal of Criminology, 36, 173-187 (1995); and Alison Liebling, Prison Suicide and Prisoner Coping, Crime and Justice, 26, 283-359 (1999).
22 For example, see Howard Bidna, Effects of Increased Security on Prison Violence, Journal of Criminal Justice, 3, 33-46 (1975); K. Anthony Edwards, Some Characteristics of Prisoners Transferred from Prison to a State Mental Hospital, Behavioral Sciences and the Law, 6, 131137 (1988); Elmer H. Johnson, Felon Self-Mutilation: Correlate of Stress in Prison, in Bruce L. Danto (Ed.) Jail House Blues. Michigan: Epic Publications (1973); Anne Jones, Self-Mutilation in Prison: A Comparison of Mutilators and Nonmutilators, Criminal Justice and Behavior, 13, 286-296 (1986); Peter Kratcoski, The Implications of Research Explaining Prison Violence and Disruption, Federal Probation, 52, 27-32 (1988); Ernest Otto Moore, A Prison Environment: Its Effect on Health Care Utilization, Dissertation Abstracts, Ann Arbor, Michigan (1980); Frank Porporino, Managing Violent Individuals in Correctional Settings, Journal of Interpersonal Violence, 1, 213-237 (1986); and Pamela Steinke, Using Situational Factors to Predict Types of Prison Violence, 17 Journal of Offender Rehabilitation, 17, 119-132 (1991).

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torture and trauma victims, including post-traumatic stress disorder (“PTSD”) and the kind of psychiatric sequelae that plague victims of what are called “deprivation and constraint” torture techniques.23
27. The prevalence of psychological symptoms (that is, the extent to which prisoners who are placed in these units suffer from these and related symptoms) is often very high. For example, in a study that I conducted of a representative sample of one hundred prisoners who were housed in the Security Housing Unit at Pelican Bay Prison in California, I found that every symptom of psychological distress that I measured but one (fainting spells) was suffered by more than half of the prisoners who were interviewed.24 Many of the symptoms were reported by twothirds or more of the prisoners assessed in this isolation housing unit, and some were suffered by nearly everyone. Well over half of the Pelican Bay isolated prisoners in this study reported a constellation of symptoms—headaches, trembling, sweaty palms, and heart palpitations—that is commonly associated with hypertension.

23 Solitary confinement is among the most frequently used psychological torture techniques. In D. Foster, Detention & Torture in South Africa: Psychological, Legal & Historical Studies, Cape Town: David Philip (1987), Psychologist Foster listed solitary confinement among the most common “psychological procedures” used to torture South African detainees (at p. 69), and concluded that “[g]iven the full context of dependency, helplessness and social isolation common to conditions of South African security law detention, there can be little doubt that solitary confinement under these circumstances should in itself be regarded as a form of torture” (at p. 136). See also: Matthew Lippman, The Development and Drafting of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 27 Boston College International & Comparative Law Review, 27, 275 (1994); Tim Shallice, Solitary Confinement—A Torture Revived? New Scientist, November 28, 1974; F.E. Somnier & I.K. Genefke, Psychotherapy for Victims of Torture, British Journal of Psychiatry, 149, 323-329 (1986); and Shaun R. Whittaker, Counseling Torture Victims, The Counseling Psychologist, 16, 272-278 (1988).

24 See discussions of these data in Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement (2003), and more recent data collected at the same facility, showing much the same pattern of results, Craig Haney, Restricting the Use of Solitary Confinement (2018), cited in footnote 11 above.

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28. With respect to a separate set of symptoms—those that have been identified in the literature as direct psychopathological effects of isolation—I also found that almost all of the prisoners whom I evaluated reported ruminations or intrusive thoughts, an oversensitivity to external stimuli, irrational anger and irritability, difficulties with attention and often with memory, and a tendency to socially withdraw. Almost as many prisoners reported a constellation of symptoms indicative of mood or emotional disorders—concerns over emotional flatness or losing the ability to feel, swings in emotional responding, and feelings of depression or sadness that did not go away. Finally, sizable minorities of the prisoners reported symptoms that are typically only associated with more extreme forms of psychopathology—hallucinations, perceptual distortions, and thoughts of suicide.
29. Although these specific symptoms of psychological stress and the psychopathological reactions to isolation are numerous and well-documented, and certainly provide one index of the magnitude of the risk of harm this kind of experience presents, they do not encompass all of the psychological pain and dysfunction that such confinement can incur, the magnitude of the negative changes it may bring about, or even the full range of the risk of harm it represents. Among other things, such extreme deprivation of social contact can undermine an individual’s social identity, destabilize his or her sense of self, and ultimately destroy one’s ability to function normally in free society.
30. Depriving people of contact with others for long periods of time is psychologically harmful and potentially destabilizing for another, related set of reasons. The importance of “affiliation”—the opportunity to have meaningful contact with others—in reducing anxiety in the face of uncertain or fear-arousing stimuli is long-established in social

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psychological literature.25 In addition, one of the ways that people determine the appropriateness of their feelings—indeed, how we establish the very nature and tenor of our emotions—is through contact with others.26
31. Solitary confinement is a socially pathological environment that forces long-term inhabitants to develop their own socially pathological adaptations—ones premised on the absence of meaningful contact with people—in order to function and survive. As a result, prisoners gradually change their patterns of thinking, acting and feeling to cope with their largely asocial world and the impossibility of relying on social support or the routine feedback that comes from normal contact with others. Clearly, then, these adaptations represent “social pathologies” brought about by the socially pathological environment of isolation. However, although they are functional and even necessary under these circumstances, they can become especially painful and disabling if taken to extremes, or if and when they are internalized so deeply that they persist long after time in isolation has ended.
32. For example, some prisoners cope with the asociality of their daily existence by paradoxically creating even more. That is, they socially withdraw further from the world around them, receding even more deeply into themselves than the sheer physical isolation of solitary

25 For example, see: Stanley Schachter, The Psychology of Affiliation: Experimental Studies of the Sources of Gregariousness. Stanford, CA: Stanford University Press (1959); Irving Sarnoff & Philip Zimbardo, Anxiety, Fear, and Social Affiliation, Journal of Abnormal Social Psychology, 62, 356-363 (1961); Philip Zimbardo & Robert Formica, Emotional Comparison and SelfEsteem as Determinants of Affiliation, Journal of Personality, 31, 141-162 (1963).

26 For example, see: A. Fischer, A. Manstead, & R. Zaalberg, Social Influences on the Emotion Process, in M. Hewstone & W. Stroebe (Eds.), European Review of Social Psychology (pp. 171-202). Volume 14. Wiley Press (2004); C. Saarni, The Development of Emotional Competence. New York: Guilford Press (1999); Stanley Schachter & Jerome Singer, Cognitive, Social, and Physiological Determinants of Emotional State, Psychological Review, 69, 379-399 (1962); L. Tiedens & C. Leach (Eds.), The Social Life of Emotions. New York: Cambridge University Press (2004); and S. Truax, Determinants of Emotion Attributions: A Unifying View, Motivation and Emotion, 8, 3354 (1984).

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confinement and its attendant procedures require. Others move from initially being starved for social contact to eventually being disoriented and even frightened by it. As they become increasingly unfamiliar and uncomfortable with social interaction, they are further alienated from others and made anxious in their presence.
33. Although social deprivation is at the core of solitary confinement, and what seemingly accounts for its most intense psychological pain and the greatest risk of harm, prison isolation units also deprive prisoners of more than social contact. Thus, there are characteristically high levels of repressive control, enforced idleness, reduced positive environmental stimulation, and physical and material deprivations that also lead to psychological distress and can create even more lasting negative consequences. Indeed, most of the things that we know are beneficial to prisoners—such as increased participation in institutional programming, visits with persons from outside the prison, physical exercise, and so on27—are either functionally denied or greatly restricted in solitary confinement units. In addition to the social pathologies that are created by the deprivation of normal, meaningful social contact, these other stressors also can produce additional negative psychological effects.
34. In addition, of course, people require a certain level of mental and physical activity in order to remain healthy. The near total lack of movement and opportunity for exercise experienced by most prisoners in isolation unquestionably impacts their mental health. Simply put, human beings need movement and exercise to maintain healthy mental functioning— without the possibility for such normal and necessary human activity, prisoners in isolation suffer a risk of serious mental harm.

27 John Wooldredge, Inmate Experiences and Psychological Well-Being, Criminal Justice and Behavior, 26, 235-250 (1999).

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35. Apart from the profound social, psychological, and physical deprivations that solitary confinement imposes, prisoners housed in these units experience prolonged periods of monotony and idleness. Many of them experience a form of sensory deprivation—there is an unvarying sameness to the physical stimuli that surround them, they exist within the same limited spaces and are subjected to the same repetitive routines, and there is little or no external variation to the experiences they are permitted to have or can create for themselves. This loss of perceptual and cognitive or mental stimulation may result in the atrophy of important related skills and capacities.28
36. I hasten to add that not every isolated prisoner experiences all or even most of the range of adverse reactions that I have described above. But the nature and magnitude of the negative psychological consequences themselves underscore the stressfulness of this kind of confinement, the lengths to which prisoners must go to adapt and adjust to it, and the risk of harm that is created by isolation and its broad range of severe stressors and deprivations. The devastating effects of the conditions typically found in isolation units are repeatedly played out in the characteristically high numbers of suicide deaths and incidents of self-harm and selfmutilation. Given the years of sustained research on solitary confinement and the observable outcomes produced by this form of incarceration across time and locality, there can be no doubt that the negative psychological impact of confinement in these environments is often severe and, for some prisoners, sets in motion a set of cognitive, emotional, and behavioral changes that are long-lasting. Indeed, they can persist beyond the time that prisoners are housed in isolation and, for some, will prove irreversible.

28 See the articles cited in the reviews referenced in footnote 11. In addition, see: Stanley Brodsky & Forrest Scogin, Inmates in Protective Custody: First Data on Emotional Effects, Forensic Reports, 1(4): 267-289 (1988)

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IV. The Exacerbating Effects of Isolation on Mental Illness 37. Although isolated confinement creates obvious risks of harm for all, most experts
acknowledge that the adverse psychological effects of isolated or solitary confinement vary as a function not only of the specific nature and duration of the isolation (such that more deprived conditions experienced for longer amounts of time are likely to have more detrimental consequences) but also as a function of the characteristics of the prisoners subjected to it. Unusually resilient prisoners may be able to withstand even harsh forms of solitary confinement with few or minor adverse effects. Conversely, some prisoners are especially vulnerable to the psychological pain and pressure of solitary confinement. Mentally ill prisoners are particularly at risk in these environments and have been precluded from them precisely because of this.29 There are several reasons that explain their heightened vulnerability.
38. For one, as I have noted, solitary confinement or isolation is a significantly more stressful and psychologically painful form of prison confinement for most prisoners. Mentally ill prisoners are generally more sensitive and reactive to psychological stressors and emotional pain. In many ways, the harshness and severe levels of deprivation that are imposed on them in isolation are the antithesis of the benign and socially supportive atmosphere that mental health clinicians seek to create within therapeutic environments. Not surprisingly, mentally ill prisoners generally deteriorate and decompensate when they are placed in isolation units.
39. Some of the exacerbation of mental illness that occurs in isolated confinement comes about as a result of the critically important role that social contact and social interaction play in maintaining psychological equilibrium. The esteemed psychiatrist Harry Stack Sullivan

29 For example, see: Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal. 1995); Ruiz v. Johnson, 37 F.Supp.2d 855 (S.D. Tex. 1999); Jones’El v. Berge, 164 F. Supp.2d 1096 (W.D. Wisc. 2001); and Ind. Protection and Advocacy Comm’n v. Comm’r, Ind. Dep’t of Corr., No. 1:08-CV-01317TWP, 2012 WL 6738517 (S.D. Ind. 2012).

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once summarized the clinical importance of meaningful social contact by observing that “[w]e can’t be alone in things and be very clear on what happened to us, and we… can’t be alone and be very clear even on what is happening in us very long—excepting that it gets simpler and simpler, and more primitive and more primitive, and less and less socially acceptable.”30 Social contact and social interaction are essential components in the creation and maintenance of normal social identity and social reality.
40. For this reason, one of the most fundamental ways that solitary confinement psychologically destabilizes prisoners is by undermining their sense of self or social identity and eroding their connection to a shared social reality. Isolated prisoners have few if any opportunities to receive feedback about their feelings and beliefs, which become increasingly untethered from any normal social context. As Cooke and Goldstein put it:
A socially isolated individual who has few, and/or superficial contacts with family, peers, and community cannot benefit from social comparison. Thus, these individuals have no mechanism to evaluate their own beliefs and actions in terms of reasonableness or acceptability within the broader community. They are apt to confuse reality with their idiosyncratic beliefs and fantasies and likely to act upon such fantasies, including violent ones.31 In extreme cases, a related pattern emerges: isolated confinement becomes so painful, so bizarre, and so impossible to make sense of that some prisoners create their own reality—they live in a world of fantasy instead of the intolerable one that surrounds them. 41. Finally, many of the direct negative psychological effects of isolation are themselves very similar if not identical to certain symptoms of mental illness. Even though these specific effects are typically thought to be less chronic or persistent when produced by the

30 Harry Stack Sullivan, The Illusion of Personal Individuality, Psychiatry, 12, 317-332 (1971), at p. 326.
31 Compare, also, Margaret Cooke & Jeffrey Goldstein, Social Isolation and Violent Behavior, Forensic Reports, 2, 287-294 (1989), at p. 288.

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prisoner’s conditions of confinement than those that derive from a diagnosable mental illness, when they occur in combination they are likely to exacerbate not only the outward manifestation of the symptoms but also the internal experience of the disorder. For example, many studies have documented the degree to which isolated confinement contributes to feelings of lethargy, hopelessness, and depressed mood. For clinically depressed prisoners, these situational effects are likely to exacerbate their pre-existing chronic condition and lead to worsening of their depressed state. Similarly, the mood swings that some prisoners report in isolation would be expected to amplify the emotional instability that prisoners diagnosed with bi-polar disorder suffer. Prisoners who suffer from disorders of impulse control would likely find their preexisting condition made worse by the frustration, irritability, and anger that many isolated prisoners report experiencing. And prisoners prone to psychotic breaks may suffer more in isolated confinement due to conditions that deny them the stabilizing influence of social feedback.
42. As a result of the special vulnerability of mentally ill prisoners to the psychological effects of solitary confinement, corrections officials and courts that have considered the issue have prohibited them from being placed in such units.32 In addition, mental health staff in most prison systems with which I am familiar are charged with the responsibility not only of screening prisoners in advance of their possibly being placed in isolation (so that the mentally ill can be excluded) but also of monitoring prisoners who are currently housed in solitary confinement for signs of emerging mental illness (so that they, too, can be removed). For example, one court that was presented with systematic evidence of the psychological risk of harm that solitary confinement entailed concluded that the seriously mentally ill must be

32 See the cases cited in footnote 29.

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excluded from such environments. Thus, the court noted that those prisoners for whom the
psychological risks were “particularly”—and unacceptably—high included anyone suffering
from “overt paranoia, psychotic breaks with reality, or massive exacerbations of existing mental
illness as a result of the conditions in [solitary confinement].”33 The court elaborated on this
conclusion by noting that those who should be excluded from isolated confinement included:
[T]he already mentally ill, as well as persons with borderline personality disorders, brain damage or mental retardation, impulseridden personalities, or a history of prior psychiatric problems or chronic depression. For these inmates, placing them in [isolated confinement] is the mental equivalent of putting an asthmatic in a place with little air to breathe. The risk is high enough, and the consequences serious enough, that we have no hesitancy in finding that the risk is plainly “unreasonable.”34
43. The accumulated weight of the scientific evidence that I have cited to and
summarized above demonstrates the negative psychological effects of isolated confinement—
what happens to people who are deprived of normal social contact for extended periods of time.
This evidence underscores the dangers isolation creates for human beings in the form of mental
pain and suffering and increased tendencies towards self-harm and suicide. This evidence
further underscores the psychological importance of meaningful social contact and interaction,
and in essence establishes these things as identifiable human needs. Over the long-term, they
may be as essential to a person’s psychological well-being as adequate food, clothing, and shelter
are to his or her physical well-being.
V. The Use of Solitary Confinement in the Nebraska Department of Correctional Services 44. As I noted above, the adverse psychological effects of solitary confinement are
thought to vary as a function of the specific nature and duration of the isolated conditions to
33 Madrid v. Gomez, 889 F.Supp. 1146, 1265 (N.D. Cal. 1995) (citation omitted). 34 Ibid.

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which prisoners are exposed. In this regard, there are better and worse solitary confinement units, including some that seek to ameliorate the harsh conditions that they impose and try minimize the harm that they inflict on prisoners. And, as I also noted, there are more and less resilient prisoners, including some who seem able to withstand the painfulness of these environments and to recover from the experience with few if any lasting effects. But neither of these facts undercuts the overall consensus that has emerged on the harmful effects of long-term isolation and the serious risk of such harm that this form of confinement poses for all prisoners who are subjected to it.
45. As I indicated in my initial summary of my expert opinions, my evaluation of the exact nature and the effects of the conditions of isolation in the Nebraska Department of Correctional Services is not complete. I look forward to conducting additional onsite inspections of conditions of confinement at specific facilities, interviewing a larger number of prisoners who are confined in them, and reviewing additional, discovery materials.
46. However, there are several things that I can say at this stage of my analysis. The first is that the use of solitary confinement or “restrictive housing” in any prison system is affected by the larger context in which it occurs. Nebraska is no exception. According to the 2017/2018 OIG report, NDCS is severely overcrowded, operating at 157% of design capacity.35 As problematic and dangerous to the health and well-being of both staff and inmates this overall level of overcrowding is, the system-wide average masks even higher and more problematic levels at certain individual facilities. For example, the state’s major maximum-security prison,

35 OIG Annual Report at 27. PLAINTIFF0019016. A recent review of the NDCS website indicates that the overcrowding problem is actually growing. As of February 11, 2019, NDCS reports that the average daily population is 161% of design capacity. See Nebraska Department of Correctional Services, Average Daily Population, available at https://corrections.nebraska.gov/public-information/ndcs-research-division.

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the Nebraska State Penitentiary, is operating at an astonishing 184% of capacity, nearly twice the number of prisoners for which it was designed.36 In addition, there are equal if not greater staffing shortages. Thus, the OIG noted that “two years after the 2016 OIG report declared that NDCS was facing a staffing crisis, the situation has not resolved itself.”37
47. Given the high levels of persistent overcrowding in NDCS, it is perhaps not surprising that the overall use of restrictive housing has continued to increase over the last four years. In any event, this steady increase is both disappointing and problematic. It is disappointing because Director Frakes and NDCS officials have explicitly committed the Department to achieve reductions in the use of restrictive housing, as evidenced in part by their partnership with the Vera Institute of Justice Safe Alternatives to Segregation initiative. Yet not only has this goal not been achieved but the opposite has occurred: there have been steady increases in the number of prisoners placed in restrictive housing since November 2014, and the number of prisoners kept there for over 180 days has more than doubled over the last two years, from 62 prisoners in August 2016 to 158 in the summer of 2018.38
48. The increase rather than decrease in the number of prisoners in restrictive housing appears to stem in part from the fact that the mechanisms or processes designed to reduce the use of solitary confinement are not operating as planned. For example, The Challenge Program (“TCP”) is supposedly a way out of restrictive housing, but it is far from an expeditious route to general population. As the OIG noted, after Phase I (which is served in restrictive housing), “Phase II and Phase III participants may leave restrictive housing, [but] they still end up

36 Id. at 39. PLAINTIFF0019028. 37 Id. at 27. PLAINTIFF0019016. 38 Id. at 56-57. PLAINTIFF0019045-46.

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spending at least 38 weeks in a setting that could be called ‘Restrictive Housing Lite.’”39 This may account for the fact that “NDCS is having a difficult time convincing those inmates selected for the program to complete it.”40 The lack of prisoner interest in or willingness to participate has resulted in many unused cells (at the time of the OIG report, 82 empty beds) in an otherwise extremely overcrowded prison system.41
49. Although they may differ in the duration of the isolated confinement and the purpose for which someone is housed there, all of the variations of what is called “restrictive housing” in the Nebraska prison system—including Immediate Segregation (“IS”), Longer-Term Restrictive Housing (“LTRH”), The Challenge Program (“TCP”), and the Secure Mental Health Unit (“SMHU”)—are similar in a number of basic, problematic respects.42 They all deprive prisoners of meaningful social contact and impose other extremely harsh restrictions, varying primarily only in terms of the length of time to which prisoners are subjected to them.43 Moreover, it should be noted that prisoners classified as IS and LTRH are not separated into

39 Id. at 65. PLAINTIFF0019054.
40 Id. at 54. PLAINTIFF0019053.
41 Id.
42 For example, see NDCS AR 210.01, Attachment H. NDCS025054.
43 According to NDCS Restrictive Housing Reports the average stay in restrictive housing for fiscal year 2017 was 74 days. As of July 1, 2017, 74 individuals had spent over 180 days in restrictive housing. See NDCS Restrictive Housing Report 2017. PLAINTIFF0016110. For fiscal year 2018, the average stay in restrictive housing was 48.39 days and 3% of placements were for over 1 year. See NDCS Restrictive Housing Report 2018. PLAINTIFF0019281. These data appear to reflect a reduction in the average length of stay in restrictive housing. While reducing time in isolation is a positive step, it is insufficient to ameliorate the myriad risks of harm discussed in this Declaration. The severity of the conditions, the practice of isolating vulnerable prisoners, and the still-extended duration of isolation continue to pose serious risks of harm for the prisoners subjected to restrictive housing in NDCS.

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different units; they are all housed in the same restrictive housing units regardless of classification.
50. There are five institutions that contain restrictive housing units: Lincoln Correctional Center (which also houses the SMHU, a restrictive housing unit governed by a different regulation as explained below), Nebraska State Penitentiary, Nebraska Correctional Center for Women, Nebraska Correctional Youth Facility, and Tecumseh State Correctional Institution. All are governed by Administrative Regulation (“AR”) 210.01.44 LCC, NCCW, and NCYF all declined to issue their own policies or operational memoranda implementing this regulation, instead simply adopting the AR wholesale.45 TSCI issued a short operational memorandum (“OM”)—9 pages to AR 210.01’s 25—which acknowledges that AR 210.01 “details both policy and specific procedures as they relate to the subject of conditions of restrictive housing unit confinement.”46 NSP issued its own OM, which includes institutionspecific procedures but also repeats much of the language of the Administrative Regulation.47 LCC also contains the SMHU, which is subject to its own set of policies and procedures. However, prisoners housed in the SMHU are only provided a minimum of ten hours per week out of cell, including showers and exercise, and are subjected to substantially the same conditions of confinement as other prisoners housed in restrictive housing.48 Notably, neither AR 210.01 nor LCC OM 115.12.02 IV (governing the SMHU) require the exclusion of people with SMI from restrictive housing. Yet the conditions to which both policies refer clearly constitute
44 See NDCS025021. 45 See NDCS039386; PLAINTIFF0010695; and PLAINTIFF0010814, respectively. 46 NDCS051534. 47 PLAINTIFF0010943-11013. 48 See LCC OM 115.12.02 IV, NDCS038993-97.

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restrictive housing, precisely the kind of confinement that is especially damaging for individuals suffering from serious mental illness.
51. The conditions of confinement in all of the restrictive housing units I toured are severe. For instance, the physical plant of each of the housing units is very similar in construction and in the level of social isolation and environmental deprivation it inflicts on prisoners housed there.49 The cells are small and inhospitable50 and, with only a few exceptions, the recreation areas that I saw were fenced-in cages with little or no exercise equipment inside them.51 These severe restricted housing conditions exist even in the women’s facility, NCCW,52 a prison whose mainline housing units were notable for their college-like atmosphere, and in the LCC Secure Mental Health Unit (“SMHU”), which supposedly operates as a therapeutic treatment unit, but has small cells and barren recreation pens, shared with another adjoining regular restrictive housing unit, for prisoners to exercise in.53 One would be hard-pressed to distinguish the living conditions in either of these two places from the harsh, deprived, and inhospitable conditions that exist in the other NDCS solitary confinement units.54

49 See generally Exhibit 3, Photographs of Restrictive Housing Units at LCC, NCCW, TSCI, and NSP.
50 See Exhibit 3, NDCS084413 (TSCI); NDCS084278 (LCC); NDCS150041 and NDCS150079 (NCCW); NDCS084312 and NDCS084340 (NSP).
51 See Exhibit 3, NDCS084300 and NDCS084335 (NSP); NDCS084256 and NDCS084262 (LCC); NDCS150027, NDCS150044, and NDCS150045 (NCCW); NDCS084398 and NDCS084417 (TSCI).
52 See Exhibit 3, NDCS150027, NDCS150041, NDCS150044, NDCS150045, NDCS150059, and NDCS150079.
53 See Exhibit 3, NDCS084252, NDCS084262, and NDCS084256.
54 See Exhibit 3, NDCS084385 (TSCI); NDCS084339 (NSP); NDCS150059 and NDCS150027 (NCCW); NDCS084252 and NDCS084266 (LCC).

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52. In addition, prisoners in these units are afforded extremely limited out-of-cell time. Under Section IX of AR 210.01 which governs general conditions of confinement in restrictive housing units across the system, for example, policy mandates that only 1 hour of yard/exercise must be permitted 5 days a week, as well as 3 opportunities per week to shave and shower.55 However, shower and exercise may be “curtailed” to as few as 3 times per week (and fewer than that “in emergencies”).56 Although prisoners housed in restrictive housing for longer than 30 days are supposed to “have access to programs and services[,]” the access is largely limited to whatever can be provided in-cell.57 In reality, even in the SMHU which allegedly houses individuals with mental illness so acute that they require a residential level of care,58 access to programming or activity of any kind appears extremely limited both in practice and under the operative policies which do not mandate out-of-cell time and socialization opportunities discernibly different from general restrictive housing.59

55 See AR 210.01 XI(A), NDCS025035 (as explained above, LCC, NCCW, and NCYF adopted AR 210.01 in its entirety without issuing their own implementing OMs); NSP OM 210.001.101 IV(Q)(1), PLAINTIFF0010965; TSCI OM 210.01.01 II(E), (K), NDCS051536-37. This limitation also applies to prisoners housed in the SMHU. LCC OM 115.12.02 IV(B)(5), (14). NDCS038994.
56 AR 210.01 XI(F), NDCS025037; NSP OM 210.001.101 IV(Q)(6), PLAINTIFF0010968
57 AR 210.01 XI(B), NDCS025035; NSP OM 210.001.101 V(Q)(2), PLAINTIFF0010965; TSCI OM 210.01.01 II(M), NDCS051537; LCC OM 115.12.02 IV(B)(15) (SMHU), NDCS038994.
58 AR 210.01 VII(A), NDCS025031.
59 For example, under the OM for the SMHU, prisoners who reach level 3 or 4 “may be allowed to participate in dayroom leisure activities with or without peers up to 2 hours per day”. This is completely discretionary and level 1 or 2 prisoners don’t even have the possibility of such outof-cell time. LCC OM 115.12.02 at 6 (NDCS038997). During my tour of SMHU I saw no evidence that any prisoners on the unit were allowed “dayroom” time and none of the prisoners I spoke with indicated that they were regularly allowed out of their cell in the dayroom for two hours a day --- or at all.

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53. Visitation is limited for prisoners in all restrictive housing units; even when they are permitted contact visits, they are almost always in full restraints.60 Prisoners in restrictive housing are afforded very limited property, and given limited access to TVs or radios.61 During my on-site interviews I encountered many prisoners who reported spending extremely long periods of time—months and years—in such conditions.62

60 See AR 210.01 XI(A)(10) (requiring only that all prisoners housed in restrictive housing have “opportunities to visit”), NDCS025035; LCC OM 115.12.02 at 5 (SMHU) (allowing prisoners to have contact visits in full restraints, with non-restrained visits reserved for prisoners on level 4), NDCS038996; NSP OM 210.001.101(IV)(Q)(4) (limiting non-contact visitation to one hour according to a schedule authorized by the Warden), PLAINTIFF0010965; NCCW OM 210.01.4.01 (adopting AR 210.01, including its visitation requirement) (according to staff, prisoners housed in NCCW restrictive housing custody are permitted contact visitation only in full restraints), PLAINTIFF0010695; LCC OM 210.01.01 (adopting AR 210.01, including its visitation requirement) (according to staff, prisoners housed in LCC restrictive housing custody are permitted contact visitation only in full restraints), NDCS039386; NCYF OM 210.1.1 (adopting AR 210.01, including its visitation requirement), PLAINTIFF0010814; TSCI OM 210.01.01 II(G) (permitting prisoners in restrictive housing units to visit only over Closed Circuit Television), NDCS051537.
61 See AR 210.01 XI(D)(1) (permitting prisoners in restrictive housing to have earbuds, one television, and “hygiene/stationary [sic] items” subject to their behavior and programming plans) and XI(D)(2) (listing limited property for prisoners on IS status), NDCS025035-36; LCC OM 115.12.02 at 4, 6 (SMHU) (permitting prisoners to have “authorized personal items” and personal radio and television sets with headphones), NDCS038995, NDCS038997; NSP OM 210.001.101 IVQ(4)(a), (b)(1) (permitting restrictive housing prisoners to possess earbuds, one television, and “hygiene/stationary [sic] items” subject to their behavior and programming plans; listing the same limited property allowed to prisoners on IS status as in AR 210.01), PLAINTIFF0010965-66; NCCW OM 210.01.4.01 (permitting prisoners on IS status to have the same property as listed in AR 210.01 and those on LTRH status to have earbuds, a headphone extension cord, and up to five books in their cells as “incentives”; a policy directive disallowed wristwatches as personal property in restrictive housing), PLAINTIFF0010696-97; LCC OM 210.01.01 (adopting AR 210.01, including the personal property restrictions), NDCS039386; NCYF OM 210.1.1 (adopting AR 210.01, including the personal property restrictions), PLAINTIFF0010814; TSCI OM 210.01.01 II(D), VI(F)(1) (allowing “personal items” as authorized in post orders; listing limited property allowed for prisoners on IS status), NDCS051536, NDCS051540-41.
62 See NDCS 2018 Restrictive Housing Annual Report at 10 (estimating that 30 percent of the 1,856 prisoners in restrictive housing had been there for over a month, including 3 percent— approximately 56 people—who had been in restrictive housing for over one year). PLAINTIFF0019281.

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54. In the course of my visits to various NDCS facilities, I conducted cell-front interviews with several dozen prisoners and also interviewed a number of prisoners on an individual, confidential basis. The prisoners I interviewed confidentially are named plaintiffs in this action. Their descriptions of their experiences in restrictive housing in NDCS and the harms they have suffered there were remarkably consistent with the information that I obtained from the dozens of random cell-front interviews that I also conducted during the tour and with the information contained in the documents I reviewed. Prisoner after prisoner voiced a host of very serious, very similar concerns. Many of them described the painfulness of their confinement and the psychological harm to which they were being subjected. Their complaints and concerns appeared to me to be genuine and heartfelt, justified by the severity of the conditions and levels of deprivation to which they were being subjected, and were entirely consistent with those I have documented from prisoners in harsh solitary confinement units elsewhere in the country.
55. Virtually all of the prisoners in restrictive housing in NDCS with whom I spoke complained about the severe levels of idleness to which they were subjected. Many prisoners with whom I spoke told me they were on the prison’s mental health caseload, were taking psychotropic medications (typically as treatment for very serious forms of mental illness, including schizophrenia, psychosis, bi-polar disorder, major depression, and PTSD).63 These prisoners complained about severity of the isolated conditions under which they were living, the constant stress, and the lack of consistent, meaningful mental health treatment. A number of them told me about (and showed evidence of) past incidents of self-harm as well as reporting past suicide attempts. Yet they remained confined in harsh and deprived solitary confinement

63 Based on 2017 data, the Office of Inspector General reported that more than a quarter (28%) of prisoners in restrictive housing suffer from mental illness. OIG Annual Report at 67. PLAINTIFF0019056. My impression, from the units I toured and the prisoners I interviewed, was that the percentage was much higher.

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units. These prisoners were virtually unanimous in wanting more mental health treatment but, as they told me, despite their requests, they were not getting it. Prisoners also consistently complained about the lengthy and indefinite nature of their confinement—“I don’t know how I’ll get out” was a common refrain—and some complained about the fact that overcrowding in the system at large meant that programs they needed for parole eligibility were unavailable to them, which kept them stuck in the system.
56. Even the prisoners in The Challenge Program (“TCP”), which is supposed to be carefully structured and program-rich, consistently complained about having nothing to do, getting little or no mental health care (except for medications), and criticized the quality of minimal programming they did get as “pointless” or “meaningless.” The OIG’s description of TCP as “Restrictive Housing Lite” was borne out both by my own observations, the description of the program by prison personnel, and the comments of the prisoners themselves. As the officer responsible for therapeutic programming explained, prisoners in “group” sessions “are secured with leg irons and are locked down” in the course of their treatment. Moreover, it is important to note that prisoners who come into the first phase of the TCP program must initially spend time under severe restrictive housing conditions until they reach higher levels in the program and only then graduate to “Restrictive Housing Lite.”
57. Similarly, based on my onsite inspection, interviews with prisoners, and policy review, the Secure Mental Health Unit (“SMHU”) at the Lincoln Correctional Center appears to be run just like a restrictive housing or solitary confinement unit. There was very little movement in the unit and prisoners seemed mostly confined to their cells. The outdoor exercise areas, which are the same as those used by prisoners in the regular restrictive housing unit, were small,

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fenced-in rec cages with concrete floors that hardly resembled an outdoor “yard.”64 In SMHU there was no evidence of adequate, out-of-cell clinical treatment, active group programming or sufficient non-clinical out-of-cell time for the population with SMI. Instead, the conditions were the same or very nearly the same as those for prisoners in the non-SMI restrictive housing units.65
58. My review of the prisoner files,66 including those of named plaintiff and nonnamed plaintiff prisoners, added even greater weight to the prisoners’ complaints, documenting the plights of prisoners with long histories of very serious mental illnesses. (A list of all of the prisoner records reviewed is included in Exhibit 2.) The files included recorded multiple instances of suicidality or extreme acting out by prisoners who were nonetheless kept in—or routinely returned to—harsh solitary confinement units, where they were once again placed at an especially significant risk of grave harm. In a number of cases, the prisoners’ repeated pleas to mental health staff to the effect that they were being harmed by—and decompensating in response to—the severe of the conditions to which they were subjected were duly noted, but to no avail.
59. For example, Patient WW has spent the vast majority of his many-year prison sentence in restrictive housing67 despite diagnosis of multiple serious mental illnesses including Bipolar Disorder and Schizoaffective Disorder.68 Patient WW has engaged in self-harm on a

64 See Exhibit 3, NDCS084262, NDCS084256. 65 See generally LCC OM 115.12.02 (describing conditions of confinement in the SMHU). NDCS038992-9002. 66 See Exhibit 2 for a list of all prisoner files reviewed. 67 NDCS 100038-40. 68 NDCS 100041.

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number of occasions, in the most recent case so severely that he required outside hospitalization.69 Patient WW himself has expressed that restrictive housing exacerbates his mental illness.70
60. Patient EEE entered NDCS custody as a minor without any significant mental health diagnoses.71 After a single violent incident, he was transferred to a restrictive housing unit in an adult facility and shortly thereafter decompensated rapidly, including playing with and eating his own feces.72 He was then diagnosed with a variety of serious mental illnesses, including Major Depressive Disorder and Paranoid Schizophrenia.73 He remains in a restrictive housing unit other than the SMHU, despite his significant diagnoses and his stated belief that his long time in restrictive housing has caused his mental illness.74
61. Plaintiff Dylan Cardeilhac likewise entered NDCS custody as a minor and has spent most if not nearly all of his sentence in restrictive housing.75 He repeatedly self-harmed and expressed suicidal ideation while in restrictive housing, sometimes indicating that he was doing so in order to get mental health treatment or because of boredom or anger caused by long stays in restrictive housing.76 His acting out increased while in restrictive housing at an adult facility to the point that he urinated out his door and threw his feces onto the ground and then
69 NDCS 110096. 70 NDCS 109792. 71 NDCS 112893. 72 NDCS 115814. 73 NDCS 112894. 74 NDCS 112901; NDCS 112892. 75 NDCS 073854-59; NDCS 073806. 76 NDCS 000698-711.

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engaged in self-harm by biting himself.77 Despite this history, he remains in restrictive housing and has never been housed in the SMHU.
62. Patient M was placed into restrictive housing for nearly a month despite severe delusions, including that prison staff members were trying to steal her toes and fingers; that her cell was full of snakes; and that she was not a human, but rather was a dolphin.78 NDCS mental healthcare providers noted that placement in restrictive housing appeared to cause her to deteriorate, as, once in restrictive housing, she began refusing meals, refusing direct orders, and contaminating her own cell.79 She was placed into restrictive housing rather than the residential mental health program at NCCW despite a documented history of self-harm and attempted suicide serious enough to require hospitalization.80
63. Plaintiff Hannah Sabata has been diagnosed with, inter alia, Bipolar Disorder, a serious mental illness.81 She also has had numerous incidents of self-harm and suicidality, both before and after her incarceration.82 Despite this history, she has spent significant time in restrictive housing, including a continuous one-year period.83

77 NDCS 073855. 78 NDCS 096298-99. 79 NDCS 096300. 80 Id. 81 NDCS 073993. 82 NDCS 018562. 83 NDCS 016918; NDCS 016947; NDCS 016952; NDCS 016958; NDCS 016968; NDCS 016973; NDCS 016991; NDCS 017105.

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64. Ms. Sabata told mental health staff that being forced to stay in her room was causing her mental and physical distress and requested that she be allowed to leave.84 She has further requested residential mental health treatment which, in light of her significant mental health needs and thoughts of self-harm, is available at NCCW.85 In one instance, after being placed in restrictive housing, she decompensated to the point of no longer drinking water or eating food until she passed out and was unresponsive.86 Immediately after being treated, she was returned to restrictive housing where she remained for nearly a year.87
65. I also reviewed the critical incident reports for two suicides that occurred in the restrictive housing units in the last two years. One occurred on May 22, 2018 at Tecumseh State Correctional Institution (TSCI).88 The prisoner was found hanging in his cell at 6:55 AM. Security checks were documented at 6:12 AM and 6:50 AM, but video of the unit shows that the latter check did not occur.89 The prisoner had been in restrictive housing since at least March 16, 2018.90
66. The second suicide occurred on May 9, 2016 in the restrictive housing unit of TSCI.91 Here, too, the prisoner was found hanging in his cell. He had been in restrictive housing since January 9, 2016, despite a diagnosis of Adjustment Disorder and Major Depressive

84 NDCS 074002. 85 NDCS 074050-51. 86 NDCS 018564. 87 NDCS 018565. 88 Internal Critical Incident Report, May 22, 2018 (NDCS 264719- NDCS 264778). 89 Id. at NDCS 264723. 90 Id. at NDCS 264755. 91 Internal Critical Incident Report, May 6, 2016 (NDCS 245268- 94).

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Disorder.92 Major Depressive Disorder is recognized as a serious mental illness under Nebraska law. NEB. REV. STAT. § 44-792(5)(b). The records indicate that the prisoner was not seen by any mental health care providers or psychiatrists in the 40 days prior to the suicide, despite being diagnosed with serious mental illness and receiving prescribed psychiatric medication from prison staff. In addition, the file contains an inmate interview request from him in which he stated “I can’t stand it any longer; nobody helps.”93
67. These two cases tragically illustrate the type of serious risks to which prisoners are subjected in restrictive housing, including receiving inadequate care for their serious mental illnesses, suffering mental deterioration caused by severe forms of prison isolation (especially for prisoners with pre-existing psychological vulnerabilities), and failing to receive meaningful oversight and monitoring by staff.
68. All of the NDCS restrictive housing units I inspected were extremely similar to one another, in the numerous ways I have described above. They are uniform in policy and practice, and they all appear capable of having truly harmful—even devastating and fatal— impacts on the prisoners housed in them. However, one unit is even more toxic than the rest—the Control Unit (referred to by prisoners and staff alike as “South Forty”) at the Nebraska State Penitentiary. Conditions inside this unit were shocking and the condition of many of the prisoners truly dire. I am not sure I have ever seen a unit run quite like “South Forty.” The cells are small,94 many of them very dirty (one that I entered appeared to have dried feces on the walls95), with solid metal doors that are essentially windowless (only a small opening looks out

92 Id. at NDCS 245270-71.

93 Id. at NDCS 245279-80.

94 See Exhibit 2, NDCS084312 and NDCS084315.

95 See id., NDCS084228.

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onto the walkway outside the cells96). Prisoners complained that their cells and the housing unit itself were infested with insects and rodents. In addition to the oppressive atmosphere inside the unit, it operates a truly bizarre system of sick call and mental health monitoring in which staff members must literally navigate through a plumbing or utility chase or “tunnel”97 (as the officers referred to it) that runs between the two sides of the units, and peer through an opening in the rear of the individual cells to communicate with prisoners, assess their medical and mental health needs, provide them with their medications, and so on.
69. In addition to this bizarre arrangement, I also witnessed prisoners receiving “mental health counseling” in another area of the “South Forty” unit, literally out in the open entranceway to the unit, within sight and sound of various staff members who were coming and going in the course of the session. There is apparently no other more appropriate space available where these sensitive interactions can occur. In several decades of inspecting prisons and jails throughout the country, I have never seen anything quite like it – and with good reason. In my opinion, conditions inside this unit were so extreme that it should be closed, as soon as possible.
70. In summary, the restrictive housing units that I inspected constitute what is meant in correctional practice and in the scientific literature as “solitary confinement” and the group of prisoners who are housed in these units are being subjected to what is considered a dangerous form of isolation. This means that the research I discussed in the preceding section of this Declaration about the significant risk of serious psychological harm is directly applicable to these NDCS units. I reach this conclusion based on my own observations of the units themselves, my interviews with staff and with prisoners housed in the units, and my review of NDCS

96 See id., NDCS084308 (showing that the cells face towards the inside of the building). 97 See id., NDCS084332-34.

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documents containing policies, procedures, and directives, as well as individual prisoner records. It is my opinion that these conditions of extreme social isolation and social deprivation are similar if not identical to those I have seen and studied in other correctional institutions. These harsh, severe conditions of confinement are precisely the kind that create a substantial risk of serious harm for all the prisoners who are subjected to them. And, as I noted earlier, a growing number of NDCS prisoners appear to be subjected to these kinds of conditions.
71. It is also important to note that the fact that some minority of these prisoners may be housed with cellmates (i.e., are “double-celled”) does not mitigate, and indeed may exacerbate, the psychological impact of the nature of their confinement. The kind of forced and strained “interactions” that take place between prisoners who are confined nearly around-theclock in a small cell hardly constitute meaningful social contact. In fact, under these harsh and deprived conditions, the forced presence of another person may become an additional stressor and source of tension (even conflict) that exacerbates some of the negative reactions brought about by this kind of segregated confinement. Indeed, in my experience, assaults (and sometimes lethal violence) between cellmates who are in isolated confinement is a serious problem in these kinds of units.98
72. In addition, as I noted in passing above, it was evident that an extraordinarily high percentage of persons housed in one or another NDCS restrictive housing unit are mentally ill. It appears that little or no effort is made to ensure that individuals with SMI are excluded from these dangerous solitary confinement conditions. Numerous prisoners in the facilities I inspected

98 In fact, this type of violence has already occurred in NDCS restrictive housing units where individuals are double-celled and a death resulted. See Bill Kelly, Nebraska Prisons Still Housing Two Inmates in Single Occupancy Cells; No Change Expected, NET/PBS/NPR, Dec. 28, 2018, available at http://netnebraska.org/article/news/1133023/nebraska-prisons-stillhousing-two-inmates-single-occupancy-cells-no-change.

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reported having been placed on the NDCS mental health caseload (often following a lengthy psychiatric history in the free world) and prescribed psychotropic medications for a wide range of very serious mental illnesses. In many instances they reported, and their mental health files corroborated, very serious psychiatric incidents in prison, including self-harm and suicidality. Yet, when I encountered them on my tours, they were housed in restrictive housing, and some of them reported being there for very long periods of time. They consistently complained that they received very little if any regular, meaningful mental health care despite, as they reported, having repeatedly requested it. Placing seriously mentally ill prisoners in solitary confinement is contrary to sound correctional and clinical practice, and a violation of international human rights standards.
73. I should also note that the placement of seriously mentally ill prisoners in isolated confinement is not only harmful to them, but also increases the risks and harmfulness of isolated confinement for other prisoners as well. Out-of-control mentally ill prisoners whose conditions often worsen in isolated confinement may become assaultive to staff and other prisoners, may engage in loud and otherwise noxious behavior (e.g., smearing themselves in feces), and precipitate forceful interventions (e.g., the use of chemical agents) that adversely affect the wellbeing of everyone in the housing unit. VI. Conclusion
74. As I noted at length above, there is a robust scientific literature that establishes the adverse psychological effects of solitary or isolated confinement and the severe risk of harm to all prisoners who are subjected to it.
75. For a variety of previously stated reasons, mentally ill prisoners are particularly vulnerable to the painful stressors of isolated confinement and the risk of harm from their placement in such units is especially grave. Indeed, many prison systems voluntarily refrain from

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placing them there and, in other jurisdictions, courts have prohibited correctional officials from housing mentally ill prisoners in isolation. In my professional opinion prisoners with a diagnosis of severe mental illness should be categorically excluded from isolation housing, because they face a substantial risk of very serious harm in that setting.
76. Based on my inspections of NDCS facilities, the information provided by prisoners and staff members in the course of my tours, and the documents that I have reviewed, I have concluded that “restrictive housing” in Nebraska represents a harsh form of solitary confinement, one that places all prisoners at significant risk of serious psychological harm. This is the case across the various “restrictive housing” units in NDCS. Indeed, the restrictive housing units that I inspected in NDCS are similar if not identical to those I have studied elsewhere and identified as causing serious adverse effects for the individuals incarcerated therein. They are also precisely the kind of units that have been characterized as “solitary confinement” in the scientific literature where many adverse psychological effects have been documented.
77. Contrary to sound correctional and clinical practice, the weight of psychological and psychiatric opinion, and international human rights standards, NDCS currently houses seriously mentally ill prisoners in its restrictive housing units. Their failure to exclude mentally ill prisoners from these units places them at an unreasonable risk of grave harm. The harms that they and other prisoners in these units are at risk of are extremely serious and sometimes irreversible, including loss of psychological stability, impaired mental functioning, selfmutilation, and even death.
78. Based on many years of experience working with correctional systems and the federal courts to address these issues in different states across the country, I am confident that the problems I have identified in the NDCS restrictive housing conditions, policies, and practices can be effectively addressed through system-wide relief that is ordered by the courts.

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 4:17-cv-03107-RFR-MDN Doc # 249-50 Filed: 02/19/19 Page 1 of 53 - Page ID # 11253

UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et al.,

Plaintiffs,

Case No. 4:17-cv-03107-RFR-MDN

v.

CLASS ACTION

NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al.,
Defendants.

EXPERT DECLARATION OF MARGO SCHLANGER IN SUPPORT OF PLAINTIFF’ MOTION FOR CLASS CERTIFICATION

I, Margo Schlanger, declare as follows: 1. I am the Wade H. and Dores M. McCree Collegiate Professor of Law at the University of Michigan. I have substantial expertise in the law, policy, and procedures affecting the incarceration of persons with disabilities. I have been retained by Plaintiffs’ counsel in this case, Sabata v. Nebraska Dep’t of Correctional Services, No. 4:17-cv-3107 (D. Neb.), as an expert on these topics. I have been asked to render my opinion with respect to disability-related policies, practices, and procedures in the Nebraska state prison system. A true and correct copy of my curriculum vitae is attached as Exhibit 1. I. PROFESSIONAL QUALIFICATIONS A. Appointments and Experience 2. I have been a tenured law professor at the University of Michigan since 2009, except for a two-year period in 2010 and 2011 when I was on leave to serve as the Officer for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security. Among other classes, I teach Torts; Constitutional Law, including advanced classes about the Equal Protection Clause; and Prisons and the Law. I also founded and serve as the Director of the Civil Rights Litigation Clearinghouse, http://clearinghouse.net. I am a faculty affiliate of the University of
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Michigan Center for Forensic Psychiatry Fellowship in Forensic Psychiatry and in that capacity
teach and advise forensic psychiatrists-in-training.
3. I have also held faculty appointments at Harvard Law School (associate
professor), Washington University Law School (professor), and UCLA Law School (visiting
professor).
4. Outside of my academic appointment, I have served since June 2015 as the court-
appointed Settlement Monitor in Adams & Knights v. Kentucky Department of Corrections, No.
3:14-cv-00001 (E.D. Ky.), a state-wide case about deaf and hard-of-hearing prisoners’ access to
programs, services, and activities offered by the Kentucky Department of Corrections and the
constitutionality of their conditions of confinement.
5. I have had many corrections- and disability-related appointments in the past.
Among them:
a. After appointment by U.S. Department of Homeland Security (DHS) Secretary Jeh Johnson, I served from November 2015 through October 2016 as a member of an Advisory Committee on Family Residential Centers, which recommended improved policies and practices relating to family immigration detention of noncitizens.
b. In 2012-2013, as part-time Counsel to the Secretary, I advised DHS Secretary Janet Napolitano on civil rights matters, including reducing the use of restrictive housing and minimizing sexual assault and abuse in immigration detention.
c. As the presidentially-appointed Officer for Civil Rights and Civil Liberties at DHS in 2010 and 2011, I was the head of civil rights for DHS, with responsibility for, among other things, civil rights complaints and policy relating to detention conditions. In that role, I was also the senior DHS official with responsibility for assessing and improving compliance with Section 504 of the Rehabilitation Act of 1973, the statute banning disability discrimination by federal agencies.
d. From 2007 to early 2010, I served as the Reporter for the American Bar Association task force on Standards relating to the Treatment of Prisoners. In that capacity, I was the principal drafter of both the standards themselves and the associated commentary.
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e. From 2006 to 2008, I served as a member of the Commission on Safety and Abuse in America’s Prisons, a blue-ribbon panel sponsored by the Vera Institute of Justice and chaired by former Attorney General Nicholas de B. Katzenbach and former Judge John Gibbons, which made recommendations for civil rights improvements in prisons and jails.
f. From 1995 to 1998, I served as a Trial Attorney and then a Senior Trial Attorney in the U.S. Dept. of Justice, Civil Rights Division, Special Litigation Section; among other activities, I conducted investigations of jails and prisons and their compliance with the Constitution and the Americans with Disabilities Act, and related litigation.
B. Relevant Publications
6. I have written widely on the topic of civil rights and prisons. My curriculum vitae
includes a list of both academic and non-academic publications. I am currently working as the
lead author of the next edition of a leading casebook on corrections law and policy. Among my
published writing is:
a. The Constitutional Law of Incarceration, Reconfigured, 103 CORNELL L. REV. 357 (2018)
b. Prisoners with Disabilities: Individualization and Integration, in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., October 2017)
c. Anti-Incarcerative Remedies for Illegal Conditions of Confinement, 6 U. MIAMI RACE & SOCIAL JUSTICE L. REV. 1 (2016)
d. How the ADA Regulates and Restricts Solitary Confinement for People with Mental Disabilities, ACS Issue Brief (May 19, 2016)
e. The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem, 664 ANNALS OF THE AM. ACAD. OF POL. & SOC. SCI. 62 (2016)
f. Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5 U.C. IRVINE L. REV. 153 (2015)
g. Prisoners’ Rights Lawyers’ Strategies for Preserving the Role of the Courts, 69 U. MIAMI L. REV. 519 (2015)
h. Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 HARV. CIV. RGHTS-CIV. LIB. L. REV. 165 (2013)
i. Regulating Segregation: The Contribution of the ABA Criminal Justice Standards on the Treatment of Prisoners, 47 AM. CRIM. L. REV. 1421 (2010)
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j. Operationalizing Deterrence: Claims Management (in Hospitals, a Large Retailer, and Jails and Prisons), 2 J. TORT L., issue 1, article 1 (2008)
k. Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. REV. 550 (2006)
l. Determinants of Civil Rights Filings in Federal District Court by Jail and Prison Inmates, 1 J. EMPIRICAL LEGAL STUD. 79 (2004) (with Anne Morrison Piehl)
m. Inmate Litigation, 116 HARV. L. REV. 1555 (2003) n. Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97
MICH. L. REV. 1994 (1999) 7. I also have substantial expertise in social science methods. I am the former Chair of the Association of American Law School’s Section on Law and the Social Sciences. I have taught a law school class titled “Empirical Inquiries in Civil Litigation.” I also have published both quantitative and qualitative empirical papers in both law reviews and peer-reviewed journals such as the Journal of Empirical Legal Studies and the Annals of the American Academy of Political and Social Science. II. FACTUAL BASES AND SUMMARY OF OPINIONS 8. I have been asked to render my opinion with respect to disability-related policies, practices, and procedures in the Nebraska state prison system. My opinions, as outlined herein, are based on: my substantial experience in this area regarding implementation of the legal framework outlined in Section III; leading correctional standards in this area including the American Correctional Association’s Performance-Based Standards for Adult Correctional Institutions (5th ed., 2018), the National Commission on Correctional Health Care’s Standards for Health Services in Prisons (2018), and the American Bar Association’s Treatment of Prisoners Standards (2011), which I played a lead role in drafting; relevant disability-related policies from other correctional systems throughout the country; review of numerous Nebraska Department of Correctional Services (NDCS) policies including policies previously obtained by
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the University of Michigan Prison Information Project in response to a Freedom of Information Act Request; public reports regarding the NDCS system; transcripts of relevant depositions taken in this matter; and relevant documents produced by NDCS to counsel for Plaintiffs, including files relating to the named Plaintiffs. A list of materials I have reviewed and relied upon in making this declaration is attached as Exhibit 2; I have also referenced a number of other documents I have reviewed and relied upon in the footnotes of this declaration.
9. My work on this matter is ongoing and my opinions are partial and preliminary, based on the available information I have reviewed to date. It is my understanding that additional documents and information will be forthcoming during the course of this litigation, and that a number of relevant documents requested by Plaintiffs’ counsel have yet to be produced. Based on the information I have reviewed, I am confident in the preliminary opinions contained in this declaration. I anticipate, however, that these opinions will be further developed and supplemented as more information becomes available.
10. Based on my review of the materials available to me, it is my opinion that NDCS systematically fails to provide prisoners with disabilities with equal access to NDCS services, programs, and activities, and fails to communicate effectively with prisoners with communications-related disabilities. NDCS’s policies pertaining to disability are limited and appear to be governed by two core policies, Administrative Regulation 4.01, NDCS’s general ADA policy, which covers application of the ADA for both NDCS employees and prisoners, and Administrative Regulation 200.3, which covers the provision of sign language interpreters. These two policies fail to adequately address identification of prisoners with disabilities, reasonable modifications and provision of assistive devices and auxiliary aids, and effective communication.
11. NDCS has no written policies or procedures to guide functional identification of prisoners with disabilities as they are processed through intake. NDCS has no written policies
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governing the provision of assistive devices beyond a cursory reference that they will be provided subject to “medical necessity, safety, and security”; no guidance is offered staff to assist their application of those broad concepts in the context of disability-related devices. It appears that NDCS does not affirmatively inform prisoners about their rights under the ADA, or about how to access necessary services. To the extent prisoners with disabilities are identified, they seem not to be provided information on the services available to them. NDCS has no tracking system to ensure housing unit or other staff know what modifications are needed and provide them, and indeed has policies in place that obstruct provision of appropriate information.
12. As a result, NDCS fails to provide equal access to prisoners with disabilities by failing to: (a) have appropriate policies or formal practices in place to ensure people with disabilities are identified and their disability-related needs assessed; (b) have appropriate policies or formal practices in place to ensure prisoners who develop disabilities while incarcerated, or have their disabilities worsen during their incarceration, are identified and have their disabilityrelated needs assessed; (c) ensure consultation between the ADA coordinator, medical and mental health staff, and correctional staff regarding disability-related needs and required reasonable modifications; (d) integrate ADA coordinators into disability-related processes including identification of prisoners with disabilities and decision-making regarding needed reasonable modifications; (e) have an appropriate system to track prisoners with disabilities and their disability-related needs to ensure needed reasonable modifications are provided to prisoners, including as they transfer between housing units and/or NDCS facilities; (f) develop adequate policies and practices that ensure appropriate assessment and provision of reasonable modifications; (g) develop substantial additional policies necessary for an adequate system ensuring effective communication.
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13. With respect to parole, there are similar but even more glaring policy omissions, with an absence of written policies or established practices relating to parole applicant requests for reasonable modifications (including assistive devices) and auxiliary aids/effective communication. In addition, there are no systems in place to ensure equal access for prisoners with disabilities to either parole prerequisites or parole placements. And the formal rules explicitly declare disability to be factor weighing against grants of parole. III. MINIMUM ELEMENTS OF A CORRECTIONAL SYSTEM FOR ADDRESSING
THE NEEDS OF PRISONERS WITH DISABILITIES 14. The welfare of prisoners with disabilities is protected by both the Constitution (the Cruel and Unusual Punishments Clause, the Due Process Clause, and the Equal Protection Clause) and the two principal federal disability anti-discrimination statutes, the Rehabilitation Act (sometimes referred to as Section 504) and the Americans with Disabilities Act (ADA). Taken together, the requirements are robust. Prison officials must: ensure that disability does not lead to unnecessary infliction of pain or deprivation of serious needs; avoid discrimination; individually accommodate disability; maximize integration of prisoners with disabilities with respect to programs, service, and activities; and provide reasonable treatment for serious medical and mental-health conditions. A. Constitutional Protections 15. Under the Eighth Amendment’s Cruel and Unusual Punishments Clause, government officials must “respond[] reasonably to … risk[s]” to prisoners, where those risks threaten the “minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 844, 834 (1994). This obligation includes, for example, risks in the areas of nutrition, sanitation, large-muscle exercise, health care, mental health care, housing, and protection from harm by staff and other prisoners. So if an overarching prison policy or practice, applicable to prisoners with and without disabilities alike, poses an obstacle to a prisoner with a disability—for example,
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making it harder for that prisoner to get enough food, live in sanitary conditions, receive healthcare, move safely in or out of his or her cell or housing unit, or avoid assaults by other prisoners—modification of that policy to accommodate the disability and solve the problem is required by the Constitution. Similarly, prisoners retain certain due process rights under the Fourteenth Amendment with regard to credit-earning, discipline, and parole matters. If an overarching prison policy or practice, applicable to prisoners with and without disabilities alike, poses procedural obstacles to a prisoner with a disability—for example, making it harder for that prisoner to receive notice that implicates due process concerns, or to prepare or participate in hearings—modification of that policy to accommodate the disability is required by the Constitution.
B. Statutory Disparate Treatment 16. Section 504 of the 1973 Rehabilitation Act, 29 U.S.C. §§ 794 et seq.,1 and Title II of the ADA, 42 U.S.C. §§ 12131 et seq.,2 prohibit discrimination on the basis of disability in federally conducted or supported services, and state and local government services, respectively. 17. Both statutes protect from exclusion or discrimination prisoners with disabilities who are “qualified” to participate in the relevant program. Under both the ADA and the Rehabilitation Act, a person has a disability if: (i) a physical or mental impairment substantially limits one or more of his or her major life activities; (ii) he or she has a record of such an
1 The Rehabilitation Act provides, in relevant part, “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any [Federal] Executive agency.” Id. § 794(a). 2 Title II provides, in relevant part, “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. § 12132.
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impairment; or (iii) he or she is regarded as having such an impairment. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1).
18. The ADA regulations on the definition of disability, 28 C.F.R. § 35.108, are capacious, covering many conditions by name and description, and emphasizing, generally, that “[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ‘Substantially limits’ is not meant to be a demanding standard.” In the ADA Amendments Act of 2008, Congress had clarified and broadened the operative definition. Under the Amendments Act, an impairment constitutes a disability even if it: (1) only substantially limits one major life activity; or (2) is episodic or in remission, if it would substantially limit at least one major life activity if active. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 3, 122 Stat. 3553, 3556.
19. The Rehabilitation Act does not define “qualified individual with a disability,” but the ADA does. That definition, 42 U.S.C. § 12131(2), is:
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 20. A key source for understanding what constitutes disability discrimination is the ADA’s Title II regulation. Most simply, discriminating against prisoners “because of” their physical disability, serious mental illness, or intellectual disability, violates the statutory ban against disparate treatment. The ADA regulation explains that public entities must afford qualified people with disabilities the same opportunity as non-disabled people to benefit from the entity’s services. This means a prison may not, because of an prisoner’s disability, deny the prisoner the “opportunity to participate” in a service offered to other inmates, may not provide an alternative service “that is not equal to that afforded others,” and must provide aids, benefits, or
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services that would enable the prisoner to “gain the same benefit, or to reach the same level of achievement as that provided to others.” 28 C.F.R. § 35.130(b)(1).
21. A prison violates this regulation, for example, if simply because of their disability, it excludes prisoners with disabilities from a program or assigns prisoners with disabilities to segregation cells where prisoners are denied most prison privileges, programs, activities, and services.
C. Reasonable Modification 22. The Rehabilitation Act and the ADA also require the provision of “reasonable modifications”—the ADA Title II’s (and Title III’s) equivalent of the more familiar “reasonable accommodation” requirement in Title I of the ADA, which addresses employment discrimination. There is generally speaking no operative difference between these two phrases. The Title II ADA regulation states: A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 36.302. A failure to implement a reasonable modification needed by a person with a disability is a type of discrimination; under the ADA, a prison must “take certain pro-active measures to avoid the discrimination proscribed by Title II.” Chisolm v. McManimon, 275 F.3d 315, 324–25 (3d Cir. 2001). 23. The reasonable modification requirement can require both small and large changes in ordinary practices and procedures. And it includes both training and provision of devices that allow access to services, programs, and activities. Thus a prison would violate the ADA if it declines to provide devices or other necessary assistance that enable equal participation. Some such aids make it possible for a prisoner to overcome physical obstacles. For
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example, a prisoner with one arm might use various types of “grip aids” to facilitate tasks that others use two hands for. Or a prisoner who cannot stand for a long period of time can use a stool for job tasks that others stand up while doing. Other times, required assistance addresses cognitive difficulties: a prisoner who is illiterate because of an intellectual disability can, for example, be assigned a reader (whether a person or somehow computer assisted), or excused from a program’s journaling requirement.
D. Effective Communication 24. In addition, both the Rehabilitation Act’s and the ADA’s regulations require prisons and jails to “take appropriate steps to ensure that communications with … participants … are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1); 28 C.F.R. § 39.160(a); 28 C.F.R. § 42.503(e). The effective-communication mandate protects prisoners with a variety of communication-impairing disabilities—among them, blindness or low vision, deafness or low hearing, and speech impediments. Often, it translates to a requirement for provision of “auxiliary aids and services,” 28 C.F.R. § 35.160—interpreters, computer-aided transcription services, assistive listening systems, open and closed captioning, various telephonic communications devices for the deaf, videophones, visual and other non-auditory alert systems, and more. 25. As the regulations explain, 28 C.F.R. § 35.160(b)(2): The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
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E. The Integration Mandate 26. The ADA regulations include a provision, usually termed the “integration mandate,” that directs that “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The regulation that deals specially with program access in prisons and jails adds some detail to this general mandate. It provides, in pertinent part: (b)(2) Public entities shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals. Unless it is appropriate to make an exception, a public entity— (i) Shall not place inmates or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available; (ii) Shall not place inmates or detainees with disabilities in designated medical areas unless they are actually receiving medical care or treatment; [and] (iii) Shall not place inmates or detainees with disabilities in facilities that do not offer the same programs as the facilities where they would otherwise be housed. 28 C.F.R. § 35.152. 27. Prisons often house prisoners with disabilities in various kinds of special housing that are, if not quite solitary confinement, at least close to it; they impose far more locked-down time than ordinary housing, restrict access to property, limit various privileges, etc. This kind of dedicated housing for people with disabilities (as well as infirmary assignments for prisoners not actually in need of in-patient medical care) violate the plain dictates of the ADA’s regulations if the housing area is not “the most integrated setting appropriate” to the prisoners’ needs. 28 C.F.R. § 35.130(d). F. The Anti-Surcharge Regulation 28. Although compliance with the above ADA requirements may cost the regulated public entity money, it is not allowed to charge benefitted individuals. Under 28 C.F.R. §35.130(f), “A public entity may not place a surcharge on a particular individual with a disability
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4:17-cv-03107-RFR-MDN Doc # 249-50 Filed: 02/19/19 Page 13 of 53 - Page ID # 11265 or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.” IV. POLICY NEEDS AND DEFICIENCIES IN NDCS POLICIES AND PROCEDURES 29. Using data from the 2013-2017 American Community Survey 5-Year Estimate, conducted by the United States Census Bureau, the total civilian noninstitutionalized population of Nebraskans over the age of 16 is estimated to be 1,446,266. Of this total, an estimated 198,830—nearly 14%—have a disability of at least one of six types (hearing difficulty, vision difficulty, cognitive difficulty, ambulatory difficulty, self-care difficulty, and independent living difficulty). The disability rate is significantly higher in jails and prisons. Although different prisons and their populations vary, it is likely that a majority of American prisoners have some kind of disability. Table 1 sets out some of the national prison and jail estimates, with sources:
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Table 1: Estimates of Disability in Jails and Prisons

All

Vision3

7.1%

Hearing4

6.2%

Ambulatory5

10.1%

Chronic condition6

41%

Age 65+7

2.3%

Intellectual or developmental disability8

4-10%

Mental illness symptoms: All9 49%

Mania

43%

Major depression

23%

Psychotic disorder

15%

Prisons Men Women 7.1% 6.4% 6.2% 5.3% 9.9% 12.1%
2.3% 1.2%
48% 62%

All 7.3% 6.5% 9.5% 40% NA
NA
60% 54% 30% 24%

Jails Men 7.6% 6.6% 8.9%

Women 5.1% 6.0% 13.5%

59% 70%

30. As Table 1 shows, the types of prevalent disabilities are varied. While the resulting needs vary, as well, there are certain categories of systemic policies and practices that correctional systems need to have in place in order to ensure they are providing prisoners with all

3 JENNIFER BRONSON ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, DISABILITIES AMONG PRISON AND JAIL INMATES, 2011-2012 (2015), at 4-5, tbls. 4 & 5, http://www.bjs.gov/content/pub/pdf/dpji1112.pdf. The data in this survey are self-reported in response to the following questions: “Hearing—Are you deaf or do you have serious difficulty hearing? Vision—Are you blind or do you have serious difficulty seeing even when wearing glasses? Ambulatory—Do you have serious difficulty walking or climbing stairs?”
4 Id.
5 Id.
6 Id. at 4–6 tbls.4-6 (“Chronic conditions include cancer, high blood pressure, stroke-related problems, diabetes, heart-related problems, kidney-related problems, arthritis, asthma, and cirrhosis of the liver.”). I used the material in all three source tables to calculate the data in text.
7 E. ANN CARSON, BUREAU OF STATISTICS, U.S. DEP’T OF JUSTICE, PRISONERS IN 2014, app. tbl.3 (2015), https://www.bjs.gov/content/pub/pdf/p14.pdf.
8 JOAN PETERSILIA, DOING JUSTICE: DOING JUSTICE? CRIMINAL OFFENDERS WITH DEVELOPMENTAL DISABILITIES, http://files.eric.ed.gov/fulltext/ED465905.pdf.
9 DORRIS J. JAMES & LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, MENTAL HEALTH PROBLEMS OF PRISON AND JAIL INMATES 1, 4 (2006), https://www.bjs.gov/content/pub/pdf/mhppji.pdf. The data are for state prisons and local jails; this study finds a lower rate among federal prisoners.
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types of disabilities with an opportunity to have equal access to prison services, programs, and
activities. Considering all the many types of disabilities and their interaction with a prison
environment, appropriate treatment and accommodation of prisoners with disabilities requires
effective implementation of the following systemic policies, practices, and processes, which are
taken up in more detail in ¶¶32-103. (Note: this is not an exhaustive list.)
a. Identification of prisoners with disabilities and assessment of their disabilityrelated needs. This includes both intake processes, when prisoners arrive to the system or to a new prison, and other identification processes for disabilities that may arise or worsen during an individual’s incarceration.
b. Consultation among an ADA Coordinator, medical and mental health staff, and correctional staff regarding disability-related needs and required reasonable modifications.
c. Integration of ADA Coordinators into disability-related processes including with regards to identification of prisoners with disabilities and decisionmaking regarding needed reasonable modifications.
d. Tracking of prisoners with disabilities and their needs, including routinized notice to staff of both.
e. Development of a system to provide disability-related reasonable modifications to policies and practices, including assistive devices.
f. Development of policies and practices, and provision of auxiliary aids, to ensure effective communication to prisoners who are deaf or hard-of-hearing, blind or low-vision, or have other communications disabilities.
g. Disability request and grievance processes.
31. In the prison environment, some of the issues that, in my experience, need
particular attention are:
a. Use of Restrictive Housing for people with disabilities.
b. Improper segregation of prisoners with disabilities in special housing units, such as in medical facilities or mental health units, that restrict their access to programs and services.
c. Parole policies and processes, including: access to parole prerequisites and in-prison parole planning; reasonable modifications and effective communication to allow equal access to parole hearings; criteria used in
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parole decision-making; and equal access/reasonable modifications to parole plans. These are discussed in more detail in ¶¶ 104-122. A. Identification of Prisoners with Disabilities and Their Disability-Related Needs: Intake 32. Prison systems typically have intake processes for new prisoners. In many systems, including Nebraska, prisoners who are new to the system are admitted first into a reception facility. (My understanding is that Nebraska’s intake for men occurs at the Diagnostic and Evaluation Center, in Lincoln; intake for women occurs at the Nebraska Correctional Center for Women, in York.) At initial intake, prisoners receive some type of medical and mental health assessment, custody classification, and perhaps other evaluations. When they are given a more permanent housing assignment to another institution, and each time they are subsequently transferred, there is another, typically less comprehensive, intake process, with varying components. 33. Just as prisons risk causing prisoners grave harm if prison staff fail to ask prisoners, proactively, about their medical and mental health situation and needs, it is important for prison staff to ask about and assess disability needs. 34. Disabilities are founded on physical or mental health impairments, so timely, complete, and competent medical and mental health histories and evaluations are crucial to identification and appropriate response to disabilities. 35. However, it is not enough for a prison to simply do medical/mental health histories and exams, for two reasons. First, physical or mental health impairments identified by medical or mental health staff are usually noted only in medical/mental health records—which means prison officials do not know about them for purposes of complying with the ADA’s mandates relating to non-discrimination, reasonable modification, and effective communication.
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For example, effective communication with a hard-of-hearing prisoner may require that staff speak to that prisoner one-on-one in a quiet location, making sure that the lighting is good and that the prisoner can see the staff-member’s face.10 None of that will happen if the prisoner’s hearing impairment is merely noted in a medical file. Second, appropriate treatment of prisoners with disabilities depends on the interaction of their disability with their environment. Appropriate disability assessments look not just at physical or mental impairments, but how those impairments affects a prisoner’s needs and equal access to programs, services, and activities in light of his or her housing, job, education/rehabilitation, and other assignments. This assessment is not part of an ordinary medical/mental health history and exam.
36. Many states require disability identification/assessment as part of the prison intake process. For example, the Arizona Department of Corrections ADA policy sets out a process by which a health care provider performs a disability assessment and relays the gathered information to non-medical staff.11 The components are both medical and functional. For example, the assessment includes “endurance (able to walk less than 200 feet),” and whether assistance is needed for “ambulation,” “transfers,” “hygiene,” “bathing,” “feeding,” “toilet requirements.”12
37. There are existing models, as well, of policies that cover disability not just by conducting simple medical screening but more fully. For example, Colorado’s medical intake policy explains that intake must include medical history, “use of or need for health care
10 For U.S. Department of Justice suggestions on law enforcement communication with deaf and hard-of-hearing individuals, see https://www.ada.gov/lawenfcomm.htm. 11 Ariz. Dep’t Corr. Chapter 100, Department Order 108: Americans With Disabilities Act Compliance (May 9, 2014) https://corrections.az.gov/sites/default/files/policies/100/ 0108_101518.pdf. 12 Id. at 1.2.2; 1.3.3, Attachment C.
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appliances,” and “housing restrictions, accessible placement and Americans with Disabilities Act (ADA) accommodations to ensure equal access pursuant.”13 And its ADA policy explains that the medical screening “includes screening for limitations”; that “all new arrivals will be provided an opportunity to complete [an] Offender Request for Accommodation”; and that the ADA coordinator must be notified by health services about any prisoner who is assessed as needing a “housing or medical restriction[],” “provided, ordered or permitted to maintain a health care appliance,” or has “an obvious physical disability.” In turn, upon receiving notice “regardless if an offender self-identifies or makes a request, ADA coordinator(s) will review the offender’s limitations, investigate potential barriers and reasonable accommodations.”14 Many other states also have policies that require not just medical but functional assessments.15
38. I cite the policies referenced in the above three paragraphs to make a limited but important point: Compliance with the ADA’s obligations requires speedy and routine intake identification of prisoners with disabilities, which is not just a medical but a functional conclusion. It requires identification of prisoners’ functional needs and then prompt consideration of modifications, auxiliary aids, and communication adjustments needed for equal access to programs, services, and activities and for effective communication. The key is to identify disability during intake, and then conduct functional assessments that can be used to
13 Colo. Dep’t. of Corr. Admin. Reg. 700-07: Officer Health Examinations (October 15, 2017), https://drive.google.com/file/d/0B8bgSyXgeic3ME9Ybk5ZSDFoQnc/view (accessed via https://www.colorado.gov/pacific/cdoc/policies-1), p. 2. 14 Colo. Dep’t. of Corr. Admin. Reg. 750-04, American with Disabilities Act-Offender Request for Accommodation, at 5, https://drive.google.com/file/d/1jDw_AtZVCG23xszUMisGiyskt ty6nJsV/view. 15 See, e.g., Vt. Agency of Human Services Dep’t of Corr., 371.01, Americans with Disabilities Act (ADA) – Facility and Field, at 11, http://www.doc.state.vt.us/about/policies/rpd/correctionalservices-301-550/371-375-programs-classification-and-case-planning/371-01-ada.pdf; In. Dep’t. of Corr. 00-02-202, Offenders with Physical Disabilities, at 4, https://www.in.gov/idoc/files/0002-202%20Offenders%20with%20%20Disabilities%201-1-2013.pdf.
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ensure ADA compliance. If prison policies or practices do not cover this need, it is highly likely that the result will be unequal access to programs, services, and activities for prisoners with disabilities, and failures of effective communication.
39. As far as I can tell from Nebraska’s relevant policies and discovery disclosures, NDCS policies relating to intake do not require disability-related intake apart from a simple health history. The intake medical screening includes an “observations” section that references, for example, “deformities,” and “prosthetic/brace,” and a health history that covers some disability-relevant issues (e.g., “hearing disorder”).16 But there is very little that guides a functional assessment—just a spot to mark for a “lower bunk pass” or a “medical equipment pass.”17 This is a major problem; I would expect it to under-identify prisoners with disabilities.
B. Non-Intake Identification Processes 40. It is important that intake not be the only time when prison officials can learn of a prisoner’s disability. Intake can miss issues, of course. In addition, prisoners can become disabled or more significantly disabled over time during their incarceration, either because their medical/mental health situation worsens or because of some changing interaction of a physical or mental impairment and their environment. For example, a hard-of-hearing prisoner newly assigned to a noisier unit may find his hearing impairment a more significant obstacle to effective communication. 41. Thus an appropriate prison disability identification process cannot be limited to intake. Instead, it requires many entry points: a prisoner’s self-report, or referral by NDCS staff, including custody, unit, medical, and mental health staff. A verification process, which may include a medical or mental health exam, would then follow where appropriate.
16 Initial Medical Screening for Jail Release Offenders (NDCS031709). 17 Intra-System Medical Screening (NDCS031696)
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42. For any of these non-intake identification processes to work, the relevant
reporter—prisoner or staff—must know both that there is a reason to report disability (that is,
that reports will somehow be useful to the prisoner and his or her access to services), and how to
invoke disability identification processes.
Prerequisites for Prisoner Self-Identification
43. Effective prisoner self-reporting depends on effective notice to prisoners that
disability-related services are available and how to obtain them. Prisoners identified as having
disabilities should receive detailed notice of what services are available and how to request those
services. By contrast, the notice needed for all prisoners is not extensive. Including disability
anti-discrimination policy and services in orientation materials/sessions may suffice, or perhaps a
further notice could be posted in housing units.
44. To be effective, the universal notice should be in simple language and should
cover the range of the prison’s obligations/services, and how to obtain them. It might read
something like18:
Americans with Disabilities Act and Inmates with Disabilities  It is the policy of [this Institution] to treat inmates with disabilities fairly.
That means:  [Institution] will not discriminate against any inmate on account of disability.  [Institution] will provide inmates with verified disabilities an equal chance to
participate in services, privileges, and programs at this institution, and will offer reasonable modifications to institution policies and practices, including by providing assistive devices, if necessary to allow equal participation.  [Institution] will communicate effectively with inmates who are deaf or hardof-hearing or blind or have low vision, including by using auxiliary aids such as interpretation, braille, large print, and non-auditory alerts.  If you have a disability-related need or complaint, [what they should do].
18 For an example of a disability rights statement that includes somewhat similar language, see Mont. Dep’t. of Corr., Montana State Prison Martz Diagnostic & Intake Unit (2010) at 4, https://www.law.umich.edu/special/policyclearinghouse/Documents/Montana%20State%20Priso n%20Handbook.pdf; Wa. Dep’t. of Corr., Statewide Inmate Orientation Handbook (2017) at 7-8, https://www.doc.wa.gov/docs/publications/400-HA002.pdf.
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45. And of course, it is important that the policy not be merely written but actually communicated to prisoners, at orientation—and in a manner sufficient to reach prisoners with communication and cognitive disabilities.
46. My information is currently incomplete due to the stage of litigation and documents not yet produced by NDCS, but from what I have reviewed, Nebraska does not adequately provide notice to prisoners of their disability-related rights and how to exercise those rights. It is true that NDCS ADA Coordinator Lisa Mathews has stated that “Inmates receive ADA policy information in several ways, including but not limited to, inmate orientation, visits with health services, medical, mental health, and social workers, Housing/Re-Entry staff referrals and library staff referrals.” Affidavit of Lisa Mathews, ¶ 6 (Dkt No. 127-46). But Ms. Mathews also testified that she does not know the details: “I have not been to orientation so I don't know how it is presented, but I do know that those orientations are held.” Mathews August 23, 2018 Dep. at 127:5-8. The written orientation materials available to me from each NDCS facility— both from 2014 and more recent discovery—suggest that there is no systematic effort to include disability issues in orientation:
47. In NDCS materials I have reviewed, apart from orientation relating to mental health programs and services, there is remarkably little that informs prisoners about their rights under the ADA, the services available, or how to access those services. Some of the recent disclosures list dozens of topics required to be covered in particular prisons’ orientations, each with a spot to check off that it has been covered. Disability is not on any such list I have seen.19
19 From OCC, the list is: Notification of Family of Change in Institutional Housing; Unit Positions, Names, Classification Process/Unauthorized Areas; Emergency Procedures Fire/Severe Weather; Unit Daily Schedule; Counts; Searches/Shakedowns/UA Tests; Sanitation; Work Assignments; Housing Unit Rules; Inmate Rooms; Day Areas; Meals; Showers; Mail; Medical/Dental/Medication/Eye Clinic; Mental Health; Religious Services; Haircuts; Library; Canteen; Grievances; Visiting; Laundry - Unit Specific Schedule; Telephone; Policy
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48. A few of the orientation-related “operational memoranda” (OMs)—prisonspecific policy implementation documents—include what seems to be intended as an antidiscrimination statement. The Diagnostic and Evaluation Center OM, for example, states “All commitments received at the DEC will participate In an initial screening/orientation/ classification process and ongoing assessment resulting in finalization of the classification document and assignment to the appropriate institution/program, Program access, work assignments, and administrative decisions will be made without regard to the inmate's race, religion, national origin, sex, disability or political views.” DEC Operational Memorandum 201.2.3.1 (NDCS 178322-178328, at 2). And many of the OMs explain to prison staff their obligation to ensure that orientation is itself accessible to prisoners with disabilities—if, for example, interpretation is needed. For example, the Nebraska State Penitentiary OM on intake states, “The inmate will be briefed on the Rules and Regulations by his Case Manager in detail, and if necessary, provided with a pre-recorded cassette tape (talking book) which is a verbatim account of all rules and regulations as written in the Inmate Rule Book …. For hearing impaired inmates and those with disabilities not specifically listed in this OM, additional assistance may be sought to provide orientation information.” NSP Operational Memorandum 201.002.102 (NDCS 178308-178321, at 4). But I did not see any orientation documents that describe oral presentations to prisoners about their disability-related rights or any relevant processes, or that put any such information in print.
Changes/Inmate Bulletin Board; Protective Custody procedures and requests. (NDCS178237.) For NSP, the list is: Names of unit staff and their duties; Count; Doors; Unauthorized areas; Searches; Grievances; Telephone; Wake-up; Medicine/Medical services; Clothing Issue; Sanitation; Classification matters; Visitation; Mail; Law Library; Religious Services; Conduct and Discipline; Notification to family of transfer; Showers; Personal Property; Fire Evacuation; Policy Change; Passes; Dress Code; Personal Bunk Area; Lights Out; Hobby Activities; Sexual Assault/Abuse. (NCDS178212)
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49. NDCS’s ADA Policy, AR 004.01, cannot fill this gap, even if it is available to prisoners in prison law libraries. Most crucially, prisoners who do not know about their rights are unlikely to think to look in the law library for a policy they do not realize exists. (Presumably, this is the reason that NDCS affirmatively tells prisoners that they have the right not to face sexual abuse in prison, rather than just placing an anti-abuse policy in the law library.) In addition, the ADA Policy is long, quite complex, and far from easy to read or understand—in part because it outlines both the Title I accommodation processes for NDCS employees and Title II prisoner processes. The ADA Policy is also incomplete: it does not ever mention the obligation of effective communication, or the ADA’s integration mandate. Finally, the ADA Policy seems to rely on prisoners to somehow figure out the inscrutable issue of whether authorities will classify their disability-related complaint/issue as medical (and therefore appropriately brought to the attention of medical staff) or non-medical (and therefore appropriately brought to the attention of other staff).
50. In summary, I have seen no evidence that, in Nebraska, the state’s obligations— the ADA’s antidiscrimination, reasonable modification, effective communication/auxiliary aids, and integration requirements—are presented to prisoners, much less explained. Likewise, there seems to be nothing in orientation describing the process for obtaining disability-related services. In general, then, a prisoner with a disability that is not identified during intake—or whose disability was identified during intake but who has not received the services he or she needs—is apparently left to figure out next steps without notice by NDCS.
Prerequisites to Staff Referrals 51. Similarly, if staff are going to be able to do disability identification/referral, they need training that explains that this is an important role for them and how to fulfill it. They should be trained on the signs of disability (for example, signs of hearing, vision, cognitive
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impairments), and informed about the steps to follow if they detect such an impairment. This would enable appropriate response by, for example, a teacher whose class includes a prisoner having trouble hearing or seeing, or a correctional officer who observes a prisoner having difficulty reaching an upper bunk, or a unit administrator who encounters a prisoner with cognitive limitations that render him unable to understand unit rules. All those staff members should know the signs of the disabilities in question and how to make a referral so the potential disability can be evaluated and appropriate accommodations offered. Based on the materials I have reviewed, I am not aware of any such training at NDCS.
C. Consultation 52. Once a disability is detected/verified by medical/mental health staff, it needs to be taken account of in prison life. That is, it may require a reasonable modification to prison policy or practices, or provision of an auxiliary aid or other steps to ensure effective communication. This frequently requires consultation with the prisoner to understand his or her needs, and also with quite a few different officials within the prison. 53. For some prisoners, their disability is basically a medical issue; they need treatment, but rarely much else. Other prisoners need some kind of assistive device, which can be prescribed by medical staff—a brace, perhaps, or glasses—but little more. For many prisoners, however, once their disability is identified and verified, equal access to services, programs, and activities, and effective communication, requires the cooperation and participation of nonmedical staff. It is for this reason that the American Correctional Association (ACA) standards require consultation between the facility and program administrator (or a designee) and the responsible health care practitioner (or designee) prior to taking action regarding chronically ill, physically disabled, geriatric, seriously mentally ill, or
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developmentally disabled offenders in the following areas: housing assignments, program assignments, disciplinary measures, transfers to other facilities.20
54. The ACA standard does not mention waiting for a prisoner’s request—instead, the
coordination referenced is required “prior to taking action [relating to] housing assignments,
program assignments, disciplinary measures, transfers to other facilities” without any such limit.
Yet—with the exception of “Functional Assessments for Aging Inmates” dated over five years
ago (see Curtright ADA File, Filing No. 127-49, at NDCS 001133-001135), I am not aware of
this type of coordination by NDCS staff. Given that the staff who make housing assignments,
program assignment, disciplinary decisions, and transfer decisions have no way to know,
reliably, about prisoners’ disabilities, it is inevitable that such decisions will deprive some
prisoners of the ADA’s promised equal access to services, programs, and activities.
55. Several hypothetical examples demonstrating the usefulness of consultation
follow:
a. The access of prisoners with mobility impairments to all the services, programs, and activities of a prison can be greatly assisted by minimizing the distances they are required to walk. Yet based on the materials I have reviewed, it seems that the only housing accommodation that seems to occur in NDCS facilities is a lower bunk assignment.
b. When prisoners who are hard-of-hearing are assigned to a program, it is useful for the staff member running the program to know about their hearing impairment, to ensure that the program is conducted in a location that minimizes sound interference. For example, at some prisons some programs are run in housing areas, where hearing can be very difficult because of fans, laundry or ice machines, and the like. If a hard-of-hearing prisoner is assigned to such a program, and officials know about his hearing, the program can be moved to an environment that facilitates effective communication.
c. If a deaf or hard-of-hearing prisoner is charged with an infraction such as failing to obey an order, a hearing officer who knows about the hearing impairment can make sure to ascertain whether or not he heard the order, and dismiss the disciplinary charge in appropriate circumstances.
20 ACA ACI 5-6C-4399 (2018). 25

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d. A prisoner with low vision who has a television can be given some method to place the television near enough to see, in his cell.
e. A prisoner with intellectual disability can receive one-on-one orientation to a new housing assignment, to explain to her any new rules or practices in a way she is more likely to understand.
56. All these types of steps depend on routine reliable communication to the relevant
staff that a particular prisoner has a disability and then consultation between medical/mental
health staff, someone with ADA expertise, and the appropriate operational staff to make
decisions about accommodations.
D. ADA Coordinator
57. Providing appropriate services for prisoners with disabilities requires knowledge
of what the law requires—the content of ¶¶ 15-28. Equally important, it requires knowledge of
multiple technologies and techniques. Take a relatively easy question: What can be done to
provide access to telephone communication to a prisoner who is too hard of hearing to use a
regular phone, but who doesn’t sign? To answer requires awareness of the range of devices
available—for example, amplifiers (including their interaction with hearing aids), or devices such as captioned telephones.21 In correctional facilities, there are added complications. What
kinds of amplifiers are sturdy enough for congregate facilities and capable of use with (usually
low-tech and analog signal) prison pay phones? How can a captioned telephone be linked to the
prison phone-billing system? And so on. Someone needs to develop the requisite regulatory and practical expertise.22
21 See Internet Protocol (IP) Captioned Telephone Service, FCC, https://www.fcc.gov/ consumers/guides/internet-protocol-ip-captioned-telephone-service (“CTS [captioned telephone service] allows a person with hearing loss but who can use his or her own voice and has some residual hearing, to speak directly to the called party and then listen, to the extent possible, to the other party and simultaneously read captions of what the other party is saying.”). 22 On what an effective ADA coordinator needs to know and be empowered to do, see U.S. DEP’T OF JUSTICE, ADA BEST PRACTICES TOOL KIT FOR STATE AND LOCAL GOVERNMENTS (2006) https://www.ada.gov/pcatoolkit/chap2toolkit.pdf.
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58. The Title II regulations, 28 C.F.R. § 35.107(a), state:
Designation of responsible employee. A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to it alleging its noncompliance with this part or alleging any actions that would be prohibited by this part. 59. Accordingly, many prison systems assign ADA coordinators to develop the
expertise and manage the consultations just described. It would be difficult to do this with just
one coordinator for a large and spread out prison system. So it is common to have an ADA coordinator for the system as a whole and for each prison in it.23
60. By contrast, NDCS has just one ADA coordinator, located not in a prison but at
central headquarters—far away from many of the state’s prisons. In a system as large and
dispersed as NDCS (more than 5000 prisoners, 10 prisons) it is in my view unlikely that this
setup can succeed. Instead, as in so many other states, each prison also needs its own ADA
coordinator. The task would probably not require a full-time assignment, but having an ADA
coordinator at each (or nearly each) prison would put that coordinator in close contact with the
relevant custody and non-custody staff, and make him or her responsible for a manageable
number of prisoners.
61. Just as the consultation described above, ¶¶ 52-56, cannot be effective if it waits
for a prisoner’s request, notification to the ADA coordinator that a prisoner has a disability and
might need some kind of intervention should be automatic. That way the ADA coordinator can
23 See, e.g., Conn. Dep’t. of Corr., 10.19, Americans with Disabilities Act, at 2-3, https://portal.ct.gov/-/media/DOC/Pdf/Ad/ad1019pdf.pdf?la=en; Md. Dep’t. of Pub. Safety and Correctional Services, OPS.200.0004, Policy Statement—Inmates with a Hearing Disability, at 6-8, http://itcd.dpscs.state.md.us/PIA/ShowFile.aspx?fileID=1437; Ma. Dep’t of Corr., 2003 DOC 408, Reasonable Accommodations for Inmates, at 6-8, https://www.mass.gov/files/documents/2018/11/14/408.pdf; N.C. Dep’t. of Public Safety Prisons, E.2600, Reasonable Accommodations for Inmates with Disabilities, at 4, https://www.doc.state.nc.us/dop/policy_procedure_manual/e2600.pdf.
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assess what steps are useful and, when appropriate, consult with other prison staff and/or the prisoner.
62. Depending on the disability and its severity, it may be appropriate for there to be a disability assessment—a meeting during which someone knowledgeable discusses with the prisoner whether there is any need for reasonable modifications or auxiliary aids in housing, programming, education, work, or the like, and then makes appropriate arrangements, in consultation with prison staff in the relevant areas.
63. But at NDCS, if medical staff identify someone as having a disability, that does not routinely lead to notification to the ADA coordinator, or indeed any non-medical staff.24 (A diagnosis code for the underlying physical/mental impairment is placed in the Nebraska Inmate Case Management System (NICaMS), but this is apparently not available to most correctional staff.)
64. The policy gap is confirmed by the deposition of Lisa Mathews, NDCS’s ADA coordinator. That deposition demonstrates that Ms. Mathews is informed only very occasionally that a prisoner with a disability has arrived at the prison:
Q. And if medical does identify somebody as having a disability, say for instance somebody is injured while they are incarcerated and all of a sudden can't walk, does medical ever consult with you at that time in regards to what accommodations might be needed? A. Rarely. Mathews August 23, 2018 Dep. at 102:11-17.
24 NCDS Medical Director Deol testified that a nurse conducting an intake assessment will address disability: “will ask the questions and the initial clinical assessment will be done what the requirement might be and then we refer to the physician and they will make the further determination. And if ADA requirements are made, they will call the ADA coordinators.” Deol November 30, 2018 Dep. at 83. But this is not written down in policy, and ADA Coordinator Lisa Matthews testified to the contrary, likewise in a Rule 30(b)(6) deposition. She also noted she had never received such a referral from intake since the time she started at NDCS in her role as ADA Coordinator. Mathews December 5, 2018 Dep. at 41:24-42:2.
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65. Typically, Ms. Mathews testified, she gets involved only if a prisoner approaches
her:
Q. What do you mean by you don’t accommodate on a referral? A. Well, I’ll go back to the example of a person is only disabled – we acknowledge that a person gets to decide if they are disabled. So if we had an inmate who was just at intake because they have an obvious disability, they might make that referral, but I’m not going to run out and start accommodating them until that person says, hey, I’m going to need some accommodation because of my disabilities. Q. Okay. So you would wait for a person to file a request or send you a letter? A. Yeah. Yes, that is correct.
Id. at 95:11-25.
Q. And for those examples that you gave, you would only get involved if the prisoner made a request? A. Exactly.
Id. at 103:25-104:3.
66. Ms. Mathews suggested during her deposition that the systematic failure to notify
her or other non-medical staff when medical screening reveals a disability is pro-disability. She
stated,
[W]e acknowledge that a person gets to decide if they are disabled. So if we had an inmate who was just at intake who someone thought, well, they looked disabled because they have an obvious disability, they might make that referral, but I'm not going to run out and start accommodating them until that person says, hey, I'm going to need some accommodation because of my disabilities.
Id. at 95:13-22. Similarly, she testified:
[U]nder the ADA just because someone has a condition that could qualify as a disability doesn't mean that person is disabled. So disability truly is in the eyes of the beholder. So just because someone has a certain diagnosis, it doesn't mean that we would say that person is disabled.
Id. at 299:18-25.
67. This represents a very problematic approach. It is appropriate for prisoners with
disabilities to be given the choice whether or not an accommodation is useful to them, and to
have substantial input into what kind of accommodation/modification would be best. Indeed (as
described above), for auxiliary aids, the regulations require that “[i]n determining what types of
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auxiliary aids and services are necessary, a public entity shall give primary consideration to the
requests of individuals with disabilities.” But it does not make sense for a prison to take no steps
to inform prisoners with disabilities about what kinds of accommodations/auxiliary aids are
available and what the process is for them. As described above, ¶¶ 43-45, all prisoners should be
told something about disability-related prison policies and the disability-related resources
available to them, just as they are told about food services, religious services, resources relating
to avoiding sexual misconduct, and the like. When a prisoner is discovered to have a disability—
through medical intake or otherwise—the next step should be to specifically inform that prisoner
about the relevant policies/processes. The obvious person to provide that information is an ADA
coordinator, who understands the policies and processes. (It could be done by someone else, but
whoever does it would have to have appropriate training and processes.)
68. In addition, even if a prisoner does make a request, at NDCS, it seems that the
ADA coordinator coordinates for only a small sliver of the ways disability affects prisoners.
ADA coordinator Lisa Mathews explained that there are at least four realms in which she plays
no role—even though each involves disabled prisoners and their needs.
a. Medical: The ADA Coordinator plays no role in the identification of medical needs and assignment of key reasonable modifications including provision of: inmate “porters” (assistants) (Mathews August 23, 2018 Dep. at 103:4104:22, 155:8-156:2); health care appliances (Id. at 99:1-100:9, 159:5160:17); lower bunk or tier (Id. at 67:3-18); medical housing (Id. at 75:1276:1).
b. Mental Health: The ADA Coordinator plays no role in identification of mental health diagnoses and treatment plans and is not consulted in regards to potential reasonable modifications for prisoners with mental illness or prior to use of force on prisoners with serious mental illnesses.
c. Interpretation: The ADA Coordinator plays no role in managing the process of obtaining American Sign Language (ASL) interpreters when needed. (Mathews Dep. p. 260; AR 200.03 (“Upon request, NDCS interpretation and translation services staff shall arrange for a qualified and licensed interpreter to assist an inmate who is deaf or hard of hearing”). (Note, however, that
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apparently in 2004, this was a process managed more by the ADA coordinator. See NDCS-001142)
d. Housing/Classification: The ADA Coordinator plays no role relating to the provision of accessible cells or housing of prisoners with disabilities. This seems to be because NDCS categorizes decisions about where to house prisoners with disabilities (and with whom25) as “housing” rather than “disability” decisions. This is a conceptual error. The categories of classification or housing on the one hand, and disability on the other, are not mutually exclusive. If they are treated as such, that means that a large and important category of disability-related decision-making—where and how to house a prisoner—is siloed and appropriate disability expertise is excluded.26
e. Parole: The role of the ADA coordinator with respect to effective communication/reasonable modifications related to prisoner parole hearings or planning is unclear.
69. The point is not that an ADA coordinator needs to be the decisionmaker for each
of the above areas. Rather, the issue is that NDCS has chosen a diffuse and uncoordinated set of
processes. For many of them, the exclusion of the ADA coordinator likely also means that
decisions are made without appropriate expertise in disability rights and available
accommodations, assistive devices, auxiliary aids, etc.
E. Tracking and Notice to Staff
70. Apart from the consultation and coordination described above, ¶¶52-69, for a
prison to provide prisoners with disabilities equal access to services, programs, and activities,
25 See Mathews August 23, 2018 Dep. at 240:1-8 (“Facilities have procedures for how inmates request specific roommates or cellmates, and I don't know that process. But I know that it exists at certain times or certain facilities or that it has existed. But that is a facility process, and something like that being medical, I wouldn't deal with a roommate request.”) 26 See Id. at 220:22-221:12:
Q. … [T]o the extent an individual prisoner requests a single-man cell due to concerns of abuse or exploitation by other inmates, due to their blindness or vision disability, would you consider that an ADA-related issue? A. Well, housing assignments are not made through ADA. They are made -- it is my understanding, it is a group process. Classification goes into that. You know, there is GP; there is PC; there is different groups for different types of either protection or control or disciplinary measures. So those classifications issues, I'm not involved with, and I'm not involved with housing.
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and to effectively communicate with them, the prison must keep track of which prisoners have
which disabilities, and must make that information routinely available to appropriate staff. For
many disabilities—those affecting communication, cognitive functioning, and mobility—that
means all staff who might encounter the prisoner. For example, any staff member who might
have dealings with a prisoner who is deaf or hard-of-hearing could need to know that in order to
communicate effectively. For this reason, prison policy should address notice in several different
ways:
a. ID cards: For situations when a prisoner encounters some difficulty related to his or her disability, an ID card provides appropriate notice to staff of the disability. For example, if a prisoner is walking slower than a correctional officer thinks appropriate, an ID card that says “mobility impairment” can verify that prisoner’s explanation that he didn’t hear the request to hurry up. Likewise an ID card that says “Deaf/Hard-of-hearing” can be helpful for a prisoner having difficulty understanding a conversation or requesting a seat close to the speaker during a program. These ID cards can be made part of the prisoner’s ordinary ID (as an extension or marking) or can be separate and worn with the ordinary ID.27
b. Bed/Cell Cards: For a disability that affects access to services, programs, or activities in housing units, a bed or cell card can be very useful. For example, a blind or mobility-impaired prisoner might have trouble getting out of a unit in an emergency. So a bed/cell card reminding staff that she needs assistance is useful. Similarly, a deaf prisoner will be unable to hear announcements or a fire alarm. So a bed/cell card reminding staff to provide effective communication of those alerts is useful.28
27 See, e.g., Md. Dep’t. of Pub. Safety and Correctional Services, OPS.200.0004, Policy Statement—Inmates with a Hearing Disability, at 11, http://itcd.dpscs.state.md.us/ PIA/ShowFile.aspx?fileID=1437 (“The Commissioner of Correction … shall facilitate employee awareness of inmates with a hearing disability by developing and offering to an inmate qualified as an individual with a disability based on a hearing disability identification indicating the inmate is deaf.”); Pa. Dep’t. of Corr., DC-ADM 006, Reasonable Accommodations for Inmates with Disabilities, at 1-1, https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/ 006%20Reasonable%20Accommodations%20for%20Inmates%20with%20Disabilities.pdf (“Upon the request of the inmate. A notation shall be placed on the inmate’s I.D. card that he/she has a qualified disability to alert staff that accommodations may be needed to properly communicate.”) 28 See, e.g., Md. Dep’t. of Corr., 500.060, Medical Alert Tags, http://www.doc.state.mn.us/ DocPolicy2/html/DPW_Display_TOC.asp?Opt=500.060.htm (“Staff must assist offenders who
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c. Electronic alert in prisoner file: Often, the staff member who needs to know that a prisoner has a disability is dealing with the prisoner’s file, not addressing the prisoner in person. A classification decision about a prisoners’ cell or bed assignment must be informed about the prisoner’s disability. Perhaps a mobility impairment requires housing the prisoner close to the unit entrance or close to the chow hall, or a hearing impairment requires a bed assignment near enough to staff to facilitate in-person alerts. Prisoners’ disabilities should therefore be noted in their electronic files, someplace hard to miss.29
71. At NDCS, however, it seems that prison officials do not have a way to know if a
particular prisoner has a disability. NDCS does not provide personal disability IDs, bed/cell
cards, or any similar notifications. It does not notate disabilities in prisoner files (with the limited
exception that medical diagnosis codes may be in NICaMS, but not available to most
correctional staff). And ADA files and information on disability-related needs are kept
confidential with the ADA Coordinator.
72. In addition, the fact that medical files at NDCS are paper, not electronic,30 poses
an obstacle to equal access to medical care and to effective communication with patients who
have communication-affecting disabilities.
73. Even when a particular set of staff members who have routine encounters with a
prisoner with disabilities find out about those disabilities, failure to consolidate information
about the identity of prisoners with disabilities and the resulting modification/etc. decisions is
problematic for another reason. If disability and resulting modifications/auxiliary aids are not
request medical alert tags. Staff must: 1. Inform offenders of the medical alert tag process in the receiving and orientation (R&O) program. … 5. Place the appropriate medical alert tag on the back of the offender’s ID card and/or cell door as requested.”). 29 Alaska Dep’t. of Corr., 808.16, Prisoner ADA Compliance Program, at 3, http://www.correct.state.ak.us/pnp/pdf/808.16.pdf (“If a prisoner[’]s request for a reasonable accommodation under the ADA is granted, the DOC offender management system shall be updated (on the ADA screen) to indicate that an accommodation for that particular prisoner is in place.”). 30 Deol November 30, 2018 Dep. at 33:23-34:18.
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prominently noted in a centrally available record, and are not consulted routinely as a decisionmaking aid, there is the potential for a hand-off difficulty every time a prisoner enters a new environment—a new job, program, housing unit, prison. Accommodations he had gained, formally or informally, in the prior environment are often lost: the newly relevant staff lack knowledge of the prisoner’s disability and needs, technical solutions and workarounds.31 In my experience, hand-off problems are a very significant obstacle to the equality of prisoners with disabilities.32
74. In fact, NDCS augments hand-off difficulty not just by the decision not to notify the ADA coordinator when a prisoner with a disability is identified, and not just with the diffusion of responsibility, but more directly. Even when the ADA coordinator is involved, under Nebraska’s ADA Policy, “Only personnel involved in making the reasonable accommodation and/or assisting in the implementation of the accommodation will have knowledge of the request. Information will be provided only on a need-to-know basis.” AR 004.01 ADA Policy (2018), at 4 (NDCS 177761-177768). It seems that pursuant to this policy, accommodations are excluded from prisoner institutional files. See Mathews Memo dated December 9, 2015 re: ADA Accommodation for Michael Gunther (NDCS 006605). (“In order to maintain confidentiality, this information will not be included in the inmate's institutional file. To ensure this
31 ADA Coordinator Lisa Mathews testified to these difficulties, see Mathews August 23, 2018 Dep. at 186:10-25, but there seems to be no process in place to address them. 32 For a policy that addresses this issue head-on, see, e.g., Ma. Dep’t. of Corr., 103 DOC 408, Reasonable Accommodations for Inmates, at 16, https://www.mass.gov/files/documents/2018/ 11/14/408.pdf (“The Superintendent of each facility shall ensure that the written and automated records of all admissions to the facility are reviewed for approved accommodations as part of the admissions process. Additionally, the institution’s admission procedures shall include a mechanism by which the Institution ADA Coordinator, or Shift Commander during nonbusiness hours, is either notified upon the arrival of transferred inmates with approved accommodations or proactively ensures the review of the applicable screen(s) in IMS to note such arrival.”)
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accommodation remains in effect during future cell or facility changes, please communicate this accommodation only to the current Unit Manager, and any subsequent Unit Manager if a move is to be made. Questions about confidentiality can be directed to the ADA Coordinator.”)33 Mathews August 23, 2018 Dep. at 86:3-88:4 (ADA file access limited to confidential HR staff). With this policy/practice in place, it is only to be expected that every cell or job change, or similar event, will pose significant difficulties for a prisoner with a hard-won modification.
75. The point is not that non-medical staff should have free access to medical files or information. It is that prisoners need there to be an easy path for alerting prison staff to their functional needs, and to already-evaluated reasonable modifications, assistive devices, and auxiliary aids. These should not be considered private, even though the underlying medical issues may be. For example, if a prisoner has a limitation relating to endurance, custody staff do not need to know its source, but they do need to know that the limitation exists and what modifications are approved as a result.
F. Provision of Reasonable Modifications and Auxiliary Aids 76. Once prisoners with disabilities are identified and tracked, the next step is to assess what, if anything, is needed to comply with the ADA’s requirements of equal access to services, programs, and activities—including by providing making reasonable modifications in prison rules and practices (which may include provision of assistive devices)—and effective communication. 77. If a functional assessment of a prisoner’s disability suggests that he or she has areas of need, then there should be a process to meet those needs. The decisionmaking process for the grant or denial of modifications/assistive devices/auxiliary aids should involve someone
33 Mathews August 23, 2018 Dep. at 107:25-108:3 (“[A]n inmate's interaction with me is, I keep that confidential in the sense that the facility wouldn't necessarily be aware of that.”).
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with expertise in disability rights and appropriate operational staff, working together. And in order to understand the prisoners’ needs and abilities, it must involve the prisoner himself or herself.
78. While individual needs may vary, there are certain common requirements that must be met for all persons with disabilities in a prison environment. Some key considerations for three categories of accommodations—reasonable modifications relating to policy/practice; prisoner assistants, and devices—follow. For each, there are indications in the materials I have read that NDCS’s policies and practices are inadequate to appropriately assess and provide reasonable modifications.
Reasonable modifications 79. In my experience, prisons sometimes misunderstand the ADA’s reasonable modification requirement, which is much broader than the requirement to provide devices that help prisoners surmount disability-related obstacles. Prison officials may reject a request to modify a rule for a prisoner with a disability with the simple answer “that’s the policy.” For example, at NDCS, when plaintiff Angelic Norris requested special shoes to ameliorate her pain from diabetes, the response was “We do not provide special shoes for that.” See Inmate Interview Requests (Dkt No. 127-69) at 26. This is, of course, insufficient in the face of a law that instructs government entities to make “reasonable modifications to rules, policies, or practices.”
Devices 80. Prisons are required to provide assistive devices under the requirement of reasonable modification or as auxiliary aids. There are dozens, perhaps hundreds, of such devices/features.
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81. For example, for deaf/hard-of-hearing prisoners, where I have the most
experience, devices could include, among others:
a. Telecommunications: TTY/TDD, captioned telephones, built-in and portable volume adjustment (with or without t-coil connection), videophone with or without interpreter relay service.
b. Television: captioning, earphones, blue tooth connection to t-coil hearing aids.
c. Site-specific amplification: portable microphone/earphone connections via Bluetooth, radio, or other transmission method; built in induction loop systems; ordinary amplification.
d. Non-auditory substitutes for announcements: Pagers; non-auditory personal or room alarms including talking watches, bed-shakers, etc.
e. Interpretation: Video remote interpretation (VRI); computer aided real-time transcription (CART).
82. Using devices like these in a prison environment is complicated; each one poses
its own security and usability issues that need to be worked through. For example, pagers may
have insufficient range and need a signal boost that is difficult to enable through thick prison
walls. Captioned telephones may mesh poorly with a prison’s prisoner phone system. And so on.
83. This technical difficulty is yet another reason that there should be someone at
each prison and at the system overall to serve as a coordinator who can solicit, develop, and
share the relevant expertise.
84. Instead, at NDCS, it seems that there is a combination of split
authority/responsibility and a problematic disinclination to recognize that certain issues are in
fact ADA issues. Consider, for example, the following passage from ADA Coordinator
Mathews’ deposition:
Q. Do you have any -- to the extent an individual prisoner requests a single-man cell due to concerns of abuse or exploitation by other inmates, due to their blindness or vision disability, would you consider that an ADA-related issue? A. Well, housing assignments are not made through ADA. They are made -- it is my understanding, it is a group process. Classification goes into that. You know,
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there is GP [general population]; there is PC [protective custody]; there is different groups for different types of either protection or control or disciplinary measures. So those classifications issues, I'm not involved with, and I'm not involved with housing.” Mathews August 23, 2018 Dep. at 220:22-12 85. In my view, whether a device relates to housing, ambulation, education, or some other aspect of prison life, if it serves a disability-related need, prisons must develop appropriate practices and policies, and must be alert to, inter alia:
a. Development of expertise with respect to repeat needs. b. The appropriateness of standards governing prisoner access to each such
device. c. Process for assessment/decisionmaking. d. Timeliness of decisionmaking. e. Waiver of fees, costs, or co-payments for disability-related devices,
modifications, aids, or services. f. Availability of replacements in the event of damage, theft, loss. g. Appropriate training to non-medical staff about avoiding damage and loss,
for example, when prisoners are transferred to disciplinary housing or a new prison. h. Appropriately easy process for cleaning, getting batteries, replacement parts, etc. 86. Some devices that assist prisoners with disabilities can fairly be considered medical: for example, hearing aids, glasses, canes, prosthetics, and the like. At NDCS, decisions about whether or not to provide these devices are allocated to medical staff, and appropriately so. See AR 115.04 MP 3. (See Attachment A, Bates NDCS078342, defining covered devices as including: “Braces, splints, wraps, prosthesis, hearing aid(s), shoes, glasses, clothing, wheel chairs, dental prosthesis, bite guards, etc.”) But the ADA applies to them just as for non-medical devices, and the considerations just listed apply in full force. There seem not to be any policies
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that offer guidance on provision of these devices beyond a cursory reference that they will be
provided subject to “medical necessity, safety, and security.”
Prisoner assistants
87. One common strategy prisons use to provide equal access/effective
communications to prisoners with disabilities is to assign them prisoner assistants. This approach
can be helpful—but it needs to be implemented carefully:
a. When prisoners with disabilities must depend on other prisoners, there is an ever-present opportunity for abuse, both monetary and physical. Abuse of people with disabilities by personal assistants is a major problem outside of prison, as well—but in prison, where autonomy is so limited, the danger is even greater. Prisoner assistants might refuse to provide needed services unless the prisoner with a disability supplements their authorized wage with monetary or equivalent payment. Or a prisoner assistant who helps by reading correspondence might, for example, take advantage of personal information. A wheelchair “pusher” might purposefully dump a mobilityimpaired prisoner out of the chair. Prison officials must deter, monitor, and respond to abuse promptly and with real attention.
b. If a prisoner with a disability prefers an accommodation that affords him or her privacy and independence, and it can be reasonably provided, a prisoner assistant is not appropriate. See 28 C.F.R. 35.160(b)(2) (“In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.”).
c. Prisoner assistants must be adequately trained and monitored.
d. If a prison chooses to use them, prisoner assistants should be available to prisoners with a variety of different disabilities. A prisoner assistant can help deaf prisoners with announcements, blind prisoners with written materials and navigation, mobility-impaired prisoners with transportation, cognitively impaired prisoners with many daily living tasks, and so on.
e. Prisoner assistants must be authorized to provide appropriate assistance, with clarity in the assignments. Prisoner assistants should be assigned whenever necessary for equal access and for whatever tasks are necessary, without limits based on medical severity or the like.
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f. Certain assignments—for example, interpretation of sensitive conversations—are simply inappropriate for prisoner assistants.34
g. If for some reason a prisoner assistant assignment does not work out— perhaps because the prisoner assistant and the prisoner with a disability do not get along, or one of them is abusive towards the other—alternative arrangements may be necessary.
88. The materials I have reviewed do not suggest that NDCS has taken account of any of the above issues.
89. At NDCS, prisoner assistants are labeled “porters.” The porters are assigned, trained, and supervised by medical staff. Deol November 30, 2018 Dep. at 139:20-142:7; Mathews August 23, 2018 Dep. at 156:3-18. Their training, however, is not geared towards disability-related personal-aid-type tasks, but towards nursing-type tasks. The porters are Certified Nursing Assistants, and are apparently trained to do quite a few nursing/personal care tasks. Deol November 30, 2018 Dep. at 139:20-142:7; Mathews August 23, 2018 Dep. at 156:318. For some prisoners with disabilities, this is no doubt very helpful. But for many, the tasks with which an aide is useful are not medical at all. A deaf prisoner may need someone to tell him when an auditory alert is sounded; a blind prisoner may need someone to read to her; a prisoner with limited ability to move his arms may need assistance in writing; a prisoner with an intellectual disability may need someone to explain things or read.
90. Porters trained to do nursing tasks may feel that these types of assistance are not really their job. If supervision is insufficient to correct that misimpression, then the prisoner with a disability has an assistant who does not assist—which is insufficient.
34 In. Dep’t. of Corr., 00-02-202, Offenders with Physical Disabilities, at 7, https:// www.in.gov/ idoc/files/00-02-202%20Offenders%20with%20%20Disabilities%201-1-2013.pdf (““Helper/aids” shall not be used to interpret for a hearing impaired offender during educational programming, Classification hearings, Disciplinary hearings, or Medical appointments.”).
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G. Effective Communication 91. The obligation to provide effective communication applies to all types of communication—formal and informal; verbal, written, or by visual or auditory signal. It applies to any prisoner with a disability that affects any particular communication—deaf or hard-ofhearing, blind or low-vision, etc. And it requires communication in a format accessible to the particular prisoner—for example, a braille version of a written document is insufficient for a blind prisoner who does not know braille; and captioning is insufficient for a deaf prisoner who cannot read. 92. Effective communication requires advance and extensive planning and development of significant expertise. Visual materials must be made available in alternative nonvisual formats, like braille or audio recordings. Auditory communications must be converted to non-auditory formats—captioned, written, interpreted. Equipment must be purchased and interpreter contracts signed in advanced, so that time-sensitive communications can occur. 93. Literacy rates are lower in prison than on the outside. And literacy rates for deaf and blind people are independently low.35 So solutions must be cognizant of the prevalence of low literacy. 94. The issues are varied and would require detailed discussion to survey. But some issues that in my experience are particularly important follow in ¶¶95-98. Based on the materials I have reviewed, it seems that NDCS has only a very spare policy addressing these topics. In light of the significant needs and the complexity of appropriate responses to them, I would expect that substantial additional policy development would be necessary for an adequate system to exist.
35 For individuals whose sign to communicate, English is, after all, not their primary language— American Sign Language (ASL) is grammatically entirely distinct from English. For individuals who are blind, braille literacy is very low.
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95. Intake and orientation: Effective communication is particularly important during
intake and orientation, so that prisoners understand the rules and resources available to them and
are appropriately assessed and assigned. But communication during a prisoners’ first few days in
a new system or prison is also particularly challenging, because prison authorities may not know
of the prisoner’s communication needs. Thus there must be policy and practice to:
a. Speedily detect communications needs and share those needs with each official who communicates with the prisoner.
b. Anticipate needs for individuals who are (i) blind, (ii) low vision, (iii) deaf (and sign), (iv) deaf (and do not sign), and (v) hard-of-hearing. Prison officials should audit their entire intake and orientation process—each presentation, interview, written communication, video, etc.—and create, in advance, versions or strategies for prompt and effective communication for each category of communications disability, taking account of the low literacy rate.36
96. Sign language interpretation: For prisoners who sign to communicate, sign
language interpretation is essential. Some issues that frequently arise:
a. Because sign language interpretation can be expensive, prisons may try to minimize it. But there are frequently no adequate alternatives.
b. Sign language interpretation must be provided by qualified interpreters—not people who know a little bit of ASL, and not by other prisoners, except in highly unusual circumstances. Involving another prisoner in sensitive communication with a deaf prisoner is problematic.
c. Interpretation should be regularized, so that it can be obtained quickly. It is important for interpreters in a prison setting to be comfortable with people whose sign language is not always formally correct.
d. While it is reasonable for a prison to make sure that interpretation is appropriate for a given prisoner, the prisoner should qualify once and then
36 Dr. Deol testified that medical staff use a TDD for communication with deaf prisoners in health care. If this is the case, it is completely inappropriate. A TDD is a telephonic 1970s version of instant messaging. It requires literacy and is slow and cumbersome. There is no reason anyone would use it for in-person communication. In fact, TDD would, in that setting, work even worse than simply passing a pen and paper back and forth, which Dr. Deol himself testified “would be pretty slow process and would not be the best option.” He was further asked “Would it be medically appropriate?” Dr. Deol responded “No.” Deol November 30, 2018 Dep. at 91:14.
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that qualification should be permanently noted, so that further, unnecessary vetting does not delay future communications.
e. Prison staff often overestimate the efficacy of lip-reading. Even the most expert lip readers miss much of what is said to them in the best circumstances—one-on-one, face-to-face communication. Lip reading is still more ineffective in group settings or at any distance.
f. Arrangements should be made for both in-person interpretation and video remote interpretation (VRI). In-person interpretation is necessary for complex communications, when there are multiple people involved (a class, for example), and in some physical environments in which video interpretation is difficult (for a person who is moving around, for example). But VRI can be necessary for time-sensitive or quick communications—for example, a conversation with correctional staff about something going wrong in a prisoner’s cell.
g. VRI poses some very major technical difficulties in prison related to internet access, keeping equipment/software up to date, training, and amplification. These need to be monitored and any problems solved proactively. If solutions are impossible, then in-person interpretation needs to be broadened to reach the situations that might otherwise be covered by VRI.
97. Telecommunications: Prisons supply telecommunications devices for prisoner
calls; to avoid discrimination, these must be accessible to prisoners with disabilities:
a. Blind prisoners may need braille handsets or other similar modifications; hard-of-hearing prisoners may need amplification or captioning; deaf prisoners need alternative devices: in particular, both a TTY and a videophone.
b. To understand the needs of deaf prisoners requires a bit of background. Beginning in the 1960s, the preferred accessibility device for phone access by deaf people was a TTY (TeleTYpewriter), sometimes referred to as a TDD (Telecommunications Device for the Deaf). This is a machine that attaches to a phone line on each end of a phone call; it allows each party to type a message and read what the other person is typing. To communicate with someone who does not have a TTY, the person with a TTY types and a remote Communication Assistant (CA) reads what has been typed out loud to a person on a regular phone. The person using the regular phone then responds verbally, and the CA types that to be read by the TTY user.
c. TTY technology has not changed significantly in decades. As might be expected from such old technology, TTYs are extremely cumbersome. They are slow and in my experience prone to radio interference when used in prisons. And they require literacy in English, which is not the primary language of individuals who use ASL to communicate.
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d. As computer and video alternatives to TTYs have been developed, deaf people in the United States have used TTYs less and less. TTYs are no longer very common in the deaf community.
e. For people who sign to communicate, the much-preferable alternative is a videophone, with video relay service (VRS) if necessary. Using a videophone, a person who signs to communicate can sign directly with another person—or can access an interpreter to relay signed language to the person on the other side of the conversation. My understanding based on the materials I have reviewed is that NDCS has refused to provide deaf prisoners who rely on ASL with a videophone.
f. Because people who sign to communicate prefer videophones to TTYs, they are far more prevalent outside of prison. So a relay is less likely to be necessary.
98. Amplification and hard-of-hearing prisoners: Prisons are often extremely noisy
environments, not just in cell blocks but elsewhere. I have seen many prison programs that are
offered in spaces with a high level of ambient noise—ice machines, washing machines,
televisions, and many people, all making noise. For hard-of-hearing individuals the ambient
noise can create very significant difficulties. But while many institutions—churches, movie
theaters, schools—have implemented amplification systems, most prisons have not. To comply
with the ADA, prisons must install amplification systems where necessary for effective
communication.
H. ADA Request and Grievance Processes
99. To comply with the ADA, a prison system must have a way for prisoners to make
their disability-related needs known to staff. As already described above, see ¶¶43-45, the first
step is notice: prisoners need to know that they are entitled to seek reasonable modifications,
effective communication, auxiliary aids, and how such requests should be made.
100. As far as I understand, neither NDCS nor the Nebraska Parole Board currently
provides this kind of notice. Cotton Dep. at 65:4-14 (Parole Board doesn’t provide notice of the
availability of accommodations).
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101. The request process itself must be accessible, both because it is itself a prison service and because it is the gatekeeper for modifications to other prison programs. For example, a requirement that requests be in writing may exclude prisoners who are blind and prisoners who are illiterate, including because of intellectual disabilities. Such a requirement must be modified when necessary for access—and a path to seek this kind of modification must exist.
102. To work effectively, the request process must allow the prisoner to explain his or her needs and issues, not just once at the outset but interactively. For auxiliary aids in particular, prisons are required to “give primary consideration to the requests of individuals with disabilities primary.”
103. Most prisons systems, including NDCS, have a grievance process, which offers prisoners a method to seek a resolution to their complaints. This process, too, constitutes the kind of program that must be accessible. But it seems that at NDCS, there is no process to consider reasonable modifications to the grievance process—extensions of deadlines for prisoners with mental disabilities, assistance with filing out the forms, etc. See Sabatka-Rine August 24, 2018 Dep. at 75:15-19 (“Q: But is there any policy that actually directs individuals if you are requested to help with a policy, then this is your responsibility to do so? A. I am not aware of that.”).
I. Restrictive Housing Issues 104. Prisoners with disabilities frequently end up in restrictive housing—locked down in single cells nearly all day, with no chance for congregate activity. Often, this violates the ADA: it may be disparate treatment (simple discrimination) or it may violate the reasonable modification requirement.
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Disparate Treatment 105. Most simply, isolating prisoners “because of” their serious mental illness, intellectual disability, or physical disability violates the statutory ban against disparate treatment. That is, if a prison assigns people with disabilities to segregation cells—where prisoners are denied most prison privileges, programs, activities, and services—simply because of their disability, that is unlawful. This kind of assignment is far from unheard of. For example, in a U.S. Department of Justice’s (DOJ) findings letter addressing conditions of confinement at the Pennsylvania State Correctional Institution at Cresson—a key document in the development of the law governing solitary confinement under the ADA—the DOJ concluded that the ADA required Cresson to “modify its policies and practices so prisoners with serious mental illness or intellectual disabilities are not automatically or categorically housed in segregation and instead receive the services they need.”37
Reasonable Modification 106. The ADA’s reasonable modification rule cover the route into solitary, the conditions in solitary, and the route out of solitary. 107. The ADA supports prisoners with disabilities who seek adjustments to the route into solitary by, for example, asking for modifications to policies and practices that:
a. Fail to take account of mental illness or intellectual disability in making housing decisions, which often assign disabled prisoners to double cells in which conflict and violence are likely.
37 See Letter from Thomas E. Perez, Assistant Attorney Gen., Civil Rights Div., U.S. Dep’t of Justice, to The Honorable Tom Corbett, Governor of Pa., Re: Investigation of the State Correctional Institution at Cresson and Notice of Expanded Investigation, 33-34 (May 31, 2013), http://www.justice.gov/sites/default/files/crt/legacy/2013/06/03/cresson_findings_5-3113.pdf [hereinafter Cresson Letter].
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b. Provide inadequate mental health care more generally, including a variety of obstacles to obtaining treatment.38 Without treatment, prisoners with mental illness are more likely to run into trouble of various kinds, leading them to solitary, either as a disciplinary or management response.
c. Use solitary confinement as a routine management technique to cope with the difficulties presented by prisoners with disabilities.39
d. Treat behavior that manifests serious mental illness or intellectual disability as a disciplinary rather than mental health or habilitation matter.40
108. The ADA similarly entitles prisoners with disabilities to modifications of the
conditions in solitary. For those prisoners whose disabilities mean they simply cannot be safely
managed in general population, prisons retain the “obligation to provide the prisoners with the
opportunity to participate in and benefit from mental health services and activities, and other services, programs, and activities to which prisoners without disabilities have access.”41 Even if a
prison has a safety interest in substantial physical isolation, that should not mean that prisoners
with disabilities are denied phone calls, books, education, rehabilitative programming, exercise,
and the like.
109. Prisons should also accommodate disabled prisoners’ particular, disability-related
vulnerability to the conditions of isolated confinement by softening those conditions. Prisoners
with mental illness and intellectual disabilities are less resilient to the absence of social
interaction and the enforced idleness of solitary confinement. Consequently, these features
38 See, e.g., Agreed Order, Rasho v. Baldwin, No. 1:07-CV-1298-MMM-JAG (C.D. Ill. May 8, 2013), at 3-4, available at http://www.clearinghouse.net/chDocs/public/PC-IL-0031-0008.pdf; 39 Cresson Letter, supra note 37, at 1. 40 See, e.g., Private Settlement Agreement, Disability Advocates, Inc. v. New York State Office of Mental Health, No. 1:02-cv-04002-GEL (S.D.N.Y. Apr. 27, 2007), at 12, available at http://www.clearinghouse.net/chDocs/public/PC-NY-0048-0002.pdf; Settlement Agreement and General Release, Disability Rights Network of Pennsylvania v. Wetzel, No. 1:13-cv-00635-JEJ (M.D. Pa. Jan. 9, 2015), at 16, available at http://www.clearinghouse.net/chDocs/public/PC-PA0031-0003.pdf. 41 Cresson Letter, supra note 37, at 37 (citing 28 C.F.R. § 35.130(b)).
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should be modified for them; they could, for example, receive controlled programming, increased recreation hours, expanded access to educational materials and similar accommodations.42 This applies even to disabled prisoners whose path into solitary was unconnected to their disability.43
110. The eligibility criteria for various kinds of in-unit programming or services— visits, phone calls, various property privileges, group therapy, etc.—should also be adjusted so those criteria do not deprive prisoners with disabilities the opportunity to participate in and benefit from those programs. Otherwise, such criteria unlawfully “screen out” prisoners with disabilities from “fully and equally enjoying” such programs or make it difficult for them to “obtain the same result [or] gain the same benefit” from these programs. 28 C.F.R. § 35.130(b)(8) & (1)(iii).
111. Finally, the ADA requires modifications to the route out of solitary—that is, to eligibility and step-down type requirements for prisoners in solitary confinement or other highsecurity housing that are ill-suited or even impossible for prisoners with disabilities. For example, if a step-down process used to transition prisoners out of restrictive housing requires prisoners to read or write, a modification will be necessary to provide access to a blind or illiterate prisoner.
112. I am aware of incorporation of anti-discrimination remedies like these— narrowing the route in, modifying the conditions, and widening the route out of solitary—in a number of state systems including, for example, in Colorado, Pennsylvania, and California.
42 See, e.g., Settlement Agreement, Peoples v. Fischer, No. 1:11-cv-02694-SAS (S.D.N.Y. Dec. 16, 2015), available at http://www.clearinghouse.net/chDocs/public/PC-NY-0062-0011.pdf. 43 See, e.g., Stipulation, Parsons v. Ryan, No. 2:12-cv-00601 (D. Ariz. Oct. 14, 2014), at 8, available at http://www.clearinghouse.net/chDocs/public/PC-AZ-0018-0028.pdf.
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J. Special Housing and the Integration Mandate 113. Prisons often house prisoners with disabilities in various kinds of special housing that are, if not quite solitary confinement, at least close to it; they impose far more locked-down time than ordinary housing, restrict access to property, limit various privileges, etc. This kind of dedicated housing for people with disabilities (as well as infirmary assignments that do not actually provide medical care or treatment) violate the plain dictates of the ADA’s regulations if the housing area is not “the most integrated setting appropriate” to the prisoners’ needs.44 114. Similarly, a prison would violate the regulation if, for example, all the mental health housing is high security, so that prisoners who would otherwise have access to gentler conditions in minimum or medium security are forced into harsher environments in order to get treatment. 115. More commonly, though, confinement of prisoners with disabilities to restrictive housing is not because of a shortage of accessible cells elsewhere, but rather because prisons choose to manage difficult, disability-related behavior with solitary confinement rather than less harsh housing assignments and services. In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court required states to deinstitutionalize people with disabilities who had been unjustifiably assigned to receive various state-provided services in segregated institutions rather than in the community.45 In prison or jail, when solitary confinement is triggered by a prisoner’s disability (and resulting conduct), that means that prison services are provided in a setting that lessens the prisoner’s contact with other, non-disabled prisoners. This is “segregated” not only in the way
44 28 C.F.R. § 35.130(d). 45 For more on Olmstead and its implementation, see Civil Rights Division, U.S. Dep’t of Justice, Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. (June 22, 2011), available at http://www.ada.gov/olmstead/q&a_olmstead.pdf.
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the term is used in prison, but also in the way the term is used in the Olmstead opinion to describe civil institutionalization, which the Court held can be a form of unlawful discrimination.
116. The ADA’s integration mandate presumes that such segregation is harmful. That is, the regulation itself bans an under-justified decision to isolate people with disabilities from other, non-disabled people; plaintiffs need not demonstrate how that decision hurts them. In addition, a decade of litigation under Olmstead in other settings has established that the solution for violations of the integration mandate is the provision of services in integrated settings that avoid the need to segregate.46 For example, in United States v. Delaware, an Olmstead settlement between the DOJ and the state of Delaware required statewide crisis services to “[p]rovide timely and accessible support to individuals with mental illness experiencing a behavioral health crisis, including a crisis due to substance abuse.”47 The settlement detailed numerous items that would form a “continuum of support services intended to meet the varying needs of individuals with mental illness.” This included Assertive Community Treatment teams—multidisciplinary groups including a psychiatrist, a nurse, a psychologist, a social worker, a substance abuse specialist, a vocational rehabilitation specialist and a peer specialist—to “deliver comprehensive, individualized, and flexible support, services, and rehabilitation to individuals in their home and communities,” and various kinds of case management.48 And it provided for “an array of supportive services that vary according to people’s changing needs and promote housing
46 See Samuel R. Bagenstos, The Past and Future of Deinstitutionalization Litigation, 34 CARDOZO L. REV. 1 (2012). 47 Settlement Agreement, U.S. v. Delaware, 1:11-cv-00591-LPS (D. Del. July 6, 2011,), at 3, available at http://www.clearinghouse.net/chDocs/public/PB-DE-0003-0002.pdf. 48 Id. at 5-6.
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stability” and “integrated opportunities for people to earn a living or to develop academic or functional skills”.49 Other Olmstead decrees contain similar provisions.50
117. The Delaware and other Olmstead cases provide a very helpful model for how prisons can comply with the integration mandate, managing the needs of prisoners with disabilities to keep them out of the segregated solitary confinement setting. The possibilities are broad: provision of mental health treatment and other supports, perhaps assignment to a oneperson cell to minimize intra-cell conflict, and many more.
K. Parole hearings 118. The ADA’s requirements of course reach parole hearings/processes, because those are government activities. With respect to parole, at least four separable issues exist: parole eligibility prerequisites, accommodations for the parole process itself, appropriate decisionmaking re. parole, and accommodations for the parole plan. These are discussed in the paragraphs that follow, ¶¶119-122.
Parole prerequisites 119. Equal access to parole requires equal access to anything the parole board either demands or values as a prerequisite to parole—for example, particular rehabilitative programming. For any programming that is advantageous for parole, that means, in turn, that equal access to parole requires appropriate access to that programming, including by provision of:
a. auxiliary aids (hearing aids, braille, interpreters, assistive listening, etc.) b. program access (removal of physical barriers, wheelchair accessible housing,
etc.)
49 Id. at 7-8. 50 See Special Collection: Olmstead Cases, CIVIL RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/results.php?searchSpecialCollection=7 (last visited February 16, 2019) (listing cases).
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c. reasonable modifications to policies that present unjustified obstacles to participation. For example, some rehabilitative program well regarded by the parole board may require prisoner literacy. If a prisoner’s intellectual disability renders that impossible, the prison must develop a substitute—for example, assigning a reader or transcriber.
Accommodations for the parole process
120. The ADA’s requirements mean that parole hearings must provide effective
communication and reasonable modifications where necessary for equal access. But from what I
have reviewed, it seems that NDCS and the Board of Parole follow no clear process with respect
to disability-related requests relating to parole. There is apparently no written policy. There is
apparently no history of providing communications-related assistance (interpretation, alternative
formats for written materials, amplification, CART, etc.). Provision of counsel at any or all of the
stages of the parole process might be an appropriate modification for prisoners with mental
disabilities, but the process and standards are very unclear, and perhaps non-existent.
Appropriate Decisionmaking by the Parole Board
121. It would violate the ADA if parole-board decisionmaking were discriminatory.
But it seems likely that it is, for two reasons:
a. First, the Board’s rules themselves suggest that disability weighs against parole (“In making its determination regarding a committed offender’s release on parole, the Board of Parole shall take into account … The offender’s mental or physical makeup, including any disability or handicap which may affect his or her conformity to law” 51)
b. Second, it seems that the Board is not informed whether reported misconduct was a result of disability-related behaviors, which suggests that the Board is likely to over-assess prisoner culpability for prisoners with disabilities.52
51 See Nebraska Board of Parole Rule 4-401(A), Parole Decisions, Factors Considered , https:// parole.nebraska.gov/sites/parole.nebraska.gov/files/doc/10-3-2017%20Board%20 of%20Parole%20Rules%20-%20website_0.pdf 52Cotton Dep at 142:15-23 (“Q. Are you ever informed whether misconduct reports were a result of disability-related behaviors? A. Not that I'm aware of. Q. Has the Board of Parole ever asked for that information? A. No, it’s not something that we would--that's not something that would
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Content of Parole Plans 122. Finally, it is important that parole plans themselves not be discriminatory. Failure to provide a disability-appropriate placement option for a parolee is inappropriate. For example, if a parole plan requires drug treatment, but no drug treatment placement available for an individual who uses a wheelchair, that constitutes inappropriate discrimination. Likewise, terminating parole for a person with mental illness because the facility to which she paroled is unable to manage people with mental illness—as it appears occurred to plaintiff Hannah Sabata53—constitutes discrimination. V. CONCLUSION 123. All my opinions contained herein are based upon my review of the pertinent records currently available to me and my training, education, and experience, and are offered to a reasonable degree of probability. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration is executed on February 18, 2019 at Ann Arbor, Michigan.
Margo Schlanger
be assisting us with our decision-making process, because we would assist accordingly. If we could …”). 53 Filing No. 237-5, Page ID # 10342 (“Living Water Rescue Mission administration indicates that due to her increased needs and their inability to address those needs, they are terminating her residency and considering it an unsuccessful completion of their program.”)
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 4:17-cv-03107-RFR-MDN Doc # 249-58 Filed: 02/19/19 Page 1 of 82 - Page ID # 11444

UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et al.,

Case No. 4:17-cv-03107-RFR-MDN

Plaintiffs,

CLASS ACTION

v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al.,

EXPERT DECLARATION OF MARC F. STERN, M.D., M.P.H. IN SUPPORT OF CLASS CERTIFICATION

Defendants.

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TABLE OF CONTENTS
I. PROFESSIONAL QUALIFICATIONS ................................................................................. 3 II. ENGAGEMENT..................................................................................................................... 4 III. STANDARD OF CARE ...................................................................................................... 4 IV. METHODOLOGY .............................................................................................................. 4 V. SUMMARY OF OPINIONS .................................................................................................. 6 VI. OPINIONS ........................................................................................................................... 8
A. Relevant NDCS Policies .................................................................................................. 8 B. Staff Deployment and Performance ................................................................................. 9
1. Use of Nursing Staff ..................................................................................................... 9 2. Use of Inmate Porters ................................................................................................. 13 3. Orders Not Followed .................................................................................................. 14 4. Clinical Decision-Making........................................................................................... 16 C. Intake Screening............................................................................................................. 23 D. Access to Care ................................................................................................................ 28 1. Emergent Care ............................................................................................................ 28 2. Urgent Care................................................................................................................. 35 3. Non-Urgent Episodic Care (NUEC)........................................................................... 42 4. Chronic Care............................................................................................................... 51 5. Access to Care in Isolation Cells................................................................................ 56 6. Access to Interpreter Services .................................................................................... 61 E. Medication Administration ............................................................................................ 61 F. Record Keeping ................................................................................................................. 70 G. Management ................................................................................................................... 71 1. Quality Monitoring ..................................................................................................... 71 2. Leadership and Oversight ........................................................................................... 78 VII. TYPICALITY OF NAMED PLAINTIFFS’ CLAIMS ..................................................... 81 VIII. CONCLUSION .............................................................................................................. 81
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I, Marc Stern, M.D., M.P.H., declare as follows: 1. I am a board certified internist specializing in correctional health care. I have
managed health care operations and practiced health care in multiple correctional settings. Most recently, I served as the Assistant Secretary of Health Care for the Washington State Department of Corrections. I. PROFESSIONAL QUALIFICATIONS
2. In the course of my career I have regularly investigated, evaluated, and monitored health care delivery systems in correctional institutions on behalf of a variety of parties including federal courts; the Office of Civil Rights and Civil Liberties of the U.S. Department of Homeland Security; the Special Litigation Section of the Civil Rights Division of the U.S. Department of Justice; and state departments of corrections and county jails.
3. On behalf of the National Commission on Correctional Health Care (NCCHC), until 2013, I taught the Commission’s correctional health care standards semi-annually to correctional health care administrators at NCCHC’s national conferences. I authored a weeklong curriculum commissioned by the National Institute of Corrections of the U.S. Department of Justice to train jail and prison wardens and health care administrators in the principles and practice of operating safe and effective correctional health care operations, and was the principle instructor for this course at its inception. Additional details of my education, teaching and work experience, publications, and cases in which I have offered testimony in the past 4 years, are contained in my Curriculum Vitae. A true and correct copy of my curriculum vitae is attached as Exhibit 1.
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II. ENGAGEMENT 4. I have been retained by plaintiffs’ counsel as an expert in correctional health care
to evaluate and provide my expert opinion concerning the health care provided to the plaintiffs and others incarcerated within the Nebraska Department of Correctional Services (“NDCS”). For the purposes of the current declaration, I have been asked to consider whether and, if so, how the health care policies and practices of NDCS impact all plaintiffs, putting them all at a substantial risk of serious harm, regardless of their individual medical histories.
5. I am being compensated for my work in this matter at a rate of $300 per hour. III. STANDARD OF CARE
6. To evaluate NDCS policies and practices, I used as a benchmark the standard of care for medically necessary care in the community. I considered national standards for correctional health care, such as those of the National Commission on Correctional Health Care and the American Correctional Association, to the extent that in some situations they provide a guide to what is necessary, but not necessarily sufficient, for safe health care. I used my extensive experience operating, examining, monitoring, advising operators of, publishing scientific articles regarding, and teaching about, health care operations in jails, prisons, and immigration detention centers, as well as my extensive experience directly and indirectly caring for patients inside and outside correctional institutions, to interpret and apply the standard of care to facts I collected. The facts or data I considered in forming my opinions below are contained within this report. A list of the documents I reviewed and upon which I relied appears in Exhibit 2.
IV. METHODOLOGY 7. I used a number of data sources to arrive at my opinions. 4

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8. I visited NDCS on November 5 through November 9, 2018, visiting one facility each day in the following order: Nebraska Correctional Center for Women (“NCCW”), Diagnostic and Evaluation Center (“DEC”), Lincoln Correctional Center (“LCC”), Nebraska State Penitentiary (“NSP”), and Tecumseh State Correctional Institution (“TSCI”). I spent a total of 53 hours touring these facilities.
9. During each visit, I toured the facility. Generally the tour included: one or more general population housing units; the isolation housing unit; specialized housing units, if they existed, such as mental health housing; the Skilled Nursing Facilities (“SNF”; located at DEC, NSP, and TSCI); the observation of medication administration (“pill line”) at all facilities except NSP; and the health care unit.
10. I conducted numerous interviews during each tour. I participated in briefings with prison administrators and the health care authority or their designee. During my walk-abouts, I spoke directly with front-line custody staff and supervisors. I conducted approximately 40 patient interviews, some with groups, some with individuals. Patients were generally chosen at random1 during housing unit (general population, specialized units, isolation, SNF) visits.
11. During the visit, I also reviewed medical records of current residents. I ultimately reviewed medical records for approximately 50 current residents, in addition to the records of the Named Plaintiffs. Some records I was only able to review on site, while others were produced in enough time to allow me to review them electronically after my tours. I chose medical records to review based on a number of triggers: Chronic Care Log; Emergency Room (“ER”) Trip Log; and Hospitalization Logs. I reviewed the medical records of three current residents who I
1 Patients were chosen from among those who were present at the time I visited the housing unit, without using any specific selection criterion. Technically, this research methodology is called a “convenience sample.”
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interviewed during my visits. I also chose three patients who were referred to me by Plaintiffs’ counsel. I chose specific cases using the method of purposive sampling. Purposive sampling is the appropriate scientific method to use in this situation because it assures that (1) the review is focused on individuals who actually make use of health care services; (2) those services are commonly provided services; and (3) those services are substantive, i.e., services that would present a risk of harm if poorly provided.
12. I generally limited my review to care provided from 2013 to the present, except where review of earlier care was necessary for understanding care during the time period of interest. Further, for patients with a longer history of care, I gave more weight to more recent conditions. V. SUMMARY OF OPINIONS
13. Based on my review, I have reached a number of preliminary opinions regarding the medical care provided to NDCS patients. I have identified system-wide failures in NDCS policies and practices, which together evidence a broken medical system that creates a substantial risk of serious harm to all NDCS patients. These system-wide policies and practices include (1) problems with staff deployment and performance (including improper use of nursing staff; inappropriate use of inmate porters (pursuant to AR 115.02), who provide direct clinical care and are given access to other prisoners’ confidential medical records; poor clinical decisionmaking and practice by healthcare professionals; and failure to have a reliable system in place to ensure medical orders are followed); (2) delayed and flawed intake screenings; (3) problems with access to care (including emergent care, urgent care, non-urgent episodic care, and chronic care; care for prisoners in isolation; and care for patients requiring interpreter services); (4) fundamental flaws in medication administration; (5) insufficient medical records; and (6)
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deficient management (including a poor quality monitoring and system improvement; and poor leadership and oversight).
14. The systemic flaws I have identified are caused by improper or ineffective written policies and by improper or ineffective practices on the ground. The problems that the Named Plaintiffs have experienced and continue to experience with NDCS’s broken medical system are typical of the problems I would expect to see as a result of the flaws I detail below. In my experience, these flaws can be remedied, but must be addressed in a systemic fashion.
15. I include a limited number of examples to illustrate the deficiencies I identified. The number of examples included in a particular section is not indicative of the number of incidents I found. They are not intended to be an exhaustive list of the instances in which a problem occurred, but instead are intended simply to help illustrate the patterns I identified during my review.
16. My opinions in this report are based on the information available to me at this time. I reserve the right to supplement or modify my opinions as more information becomes available. This report should not be taken as an exhaustive list of the opinions I will reach in this case. My opinions provided in this declaration are focused on the class-wide impact of NDCS health care policies and procedures on plaintiffs and should not be read as limiting the opinions concerning deliberate indifference and substantial risk of serious harm that I may offer in subsequent declarations. I will note that although I reviewed medical records on site during my visits, NDCS did not provide copies of the medical records from LCC in enough time for me to conduct a meaningful re-review of the facts related to cases I cite here.
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VI. OPINIONS A. Relevant NDCS Policies 17. NDCS has a series of written Administrative Regulations (“ARs”) that apply to all
of its facilities and relate to the provision of medical care. Many facilities have implemented Operating Memoranda as well, though as a general matter they largely appear to mirror the ARs. In addition, there are Medical Procedures, Nursing Procedures, and Nursing Treatment Protocols that are used in all NDCS facilities. (See, e.g., Deposition of Dr. Harbans Deol, Medical Director of NDCS (“Deol Dep.”) 117:18-118:7). I use the term “policies” to refer to these five groups of documents. NDCS employs a number of policies that are either improper on their face or implemented in a manner that results in a risk of serious harm to patients. I discuss these deficiencies throughout my declaration.
18. For example, NDCS policies on Use of Force Care and Health Screenings are deficient on their face, as they allow licensed practical nurses (“LPN”) to fulfill some of the requirements of the policies. See Paragraph 93. In addition, NDCS policies regarding hunger strikes (AR 115.13),2 tuberculosis (“TB”) screening (AR 115.15), the use of Inmate Porters (AR 115.02), screening of Inmate Interview Request forms (“IIR”s, or requests for health care; AR 115.04), and continuous quality improvement (AR 115.01, AR 101.04 and Medical Protocol 36) are deficient on their face. See Paragraphs 43, 28, 74-76, 125-131. These policies, which apply to all NDCS facilities, put patients at risk of serious harm.
2 NDCS policies regarding hunger strikes are deficient, creating a danger for individuals who participate in this behavior. First, according to AR 115.13 Hunger Strike, Section I.A, the only mechanism for recognizing a hunger strike is if the resident announces it (active route). The policy fails to recognize that residents might not eat and might not announce it. This might occur, for example, with a mentally ill patient. Thus the policy should also allow for a second (passive) mechanism: custody staff noticing that the patient is not eating. Second, AR 115.13 Hunger Strike, Sections I. H. & J. envisions that at the end of a hunger strike, the resident should just start eating in his/her own. This is highly dangerous and could lead to death. The resident needs to be transferred to the SNF and start to resume eating very slowly with close monitoring including blood tests.
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19. In other areas, deficiencies stem from a lack of clear policy guidance. For example, there is no clear policy on the training to be provided to new nursing staff. See Paragraph 24. Similarly, as I discussed elsewhere, Dr. Harbans Deol, NDCS Medical Director, has acknowledged NDCS has no policy specifying the timeframe in which IIRs are to be triaged or the timeframe in which a patient is to be seen post-triage. See Paragraph 79. There is also a lack of clear policy guidance and conflicts between policies with regard to medication administration and refusals, as I discuss in paragraphs 106-111.
20. Finally, the implementation of policies, such as the Health Screenings, Examinations, Appraisals & Review policy (AR 115.05) and the Nursing Treatment Protocols, results in a serious risk of harm to patients at all facilities due to the improper deployment of LPNs. I discuss this in depth in paragraphs 21-27.
B. Staff Deployment and Performance 1. Use of Nursing Staff
21. To assess and care for patients, a correctional health care system should employ Registered Nurses (“RN”) to assess patients and establish a nursing care plan. Health care staff with lesser training and credentials, such as LPNs, do not have the expertise or experience to assess patients or establish a nursing care plan on their own. When they are allowed to do so without proper oversight, patients are put at a substantial risk of serious harm.
22. NDCS’s improper and dangerous use of nursing staff permeates nearly all aspects of care. In a typical prison health setting, one may find Registered Nurses (“RNs”) and Licensed Practical Nurses (“LPNs”). Though both called “nurses,” LPNs are fundamentally different from RNs. LPNs typically receive only about 1.5 years of post-high school training in a vocational or community college program whereas nurses typically receive four years of post-high school
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training in a college bachelor’s degree program. The difference in their resultant capabilities are well-captured by most states’ laws. Nebraska’s law is typical. It distinguishes between RNs and LPNs in two critically important domains, among others. The first domain is “assessing.” Assessing is the activity by which a medical professional seeks out and then analyzes the various pieces of patient data surrounding a patient’s complaint (history and symptoms, observations and examination, test results) to arrive at a conclusion or nursing diagnosis (the “assessment”). The second domain is designing a nursing care plan (treatment) based on the assessment. RNs may independently assess patients,3 whereas LPNs may only contribute to assessing the patient’s condition4. RNs may independently establish a nursing care plan,5 whereas LPNs may only participate in the development of a plan.6 In other words, LPNs may not independently assess a patient and may not independently create a nursing care plan.
23. All NDCS facilities employ both RNs and LPNs. NDCS generally deploys LPNs interchangeably with RNs. In NDCS facilities, an LPN can be found as the sole health care professional at a prison at night or can be found managing a patient encounter, independently, in emergencies, urgencies, and non-urgent episodic care. NDCS utilizes two mechanisms which may be intended to – but do not – replace the requisite training, expertise, and legal licensure for LPNs to safely operate at the level of an RN or provide safe care independently. Based on my experience in other facilities, this generally happens due to one or more of the following factors:
3 Nebraska Laws 2007, LB463, § 768 38-2212 (2) (a) Assessing human responses to actual or potential health conditions; (b) Establishing nursing diagnoses. 4 38-2211 (2) (a) Contributing to the assessment of the health status of individuals and groups; (b) Participating in the development and modification of a plan of care. 5 38-2212 (2) (d) Establishing and maintaining a plan of care; (e) Prescribing nursing interventions to implement the plan of care. 6 38-2211 (2) (b) Participating in the development and modification of a plan of care.
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difficulty recruiting RNs; cost saving by hiring LPNs (because they are paid a lower wage than RNs); and failure on the part of management to appreciate the legal and training-based limitations of LPNs.
24. First, NDCS provides newly hired LPNs with on-the-job training to learn how to independently manage the broad spectrum of simple and complex problems which arise in the prison setting. The training provided is deficient as a general matter, and as noted above, cannot replace the training, expertise and legal licensure of an RN. Depending on the facility, NDCS provides between three days (TSCI) and 4-6 weeks (NCCW) of such training. This inconsistency in training programs may result, in part from lack of clear and specific policy guidance, and in part from lack of adherence to even that insufficient guidance. The sole guidance I could find in ARs, protocols, or procedures is contained in Nurse Procedure N-2 Nursing Orientation/On the Job Training, which states, “NDCS new employees will have at least 4 weeks orientation (scheduled with a regular staff member) up to 12-weeks orientation prior to being independent in the correctional setting.” This is vague and unclear. However, even in its vagueness, the three days of orientation provided at TSCI is less time than the Procedure envisions. At TSCI, a supervisor also provides “a few hours” of additional didactic time reviewing Nurse Treatment Protocols. Following this training, LPNs are allowed to manage a broad spectrum of medical problems independently. Training to allow a healthcare professional to manage medical care independently normally requires 4 years of formal schooling for an RN and 6-11 years of formal schooling for a practitioner.7 It is impossible to conclude that LPNs can safely care for patients independently.
7 In this report I use the term “practitioner” to refer to any health professional with medication prescribing authority: medical physician, psychiatrist, nurse practitioner, physician assistant, or dentist.
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25. Second, NDCS arms LPNs with Nurse Treatment Protocols (“NTP”). NTPs are one-page forms meant to enable a nurse to assess a patient and establish a nursing care plan, all independently. NDCS has 51 NTPs ranging from the “Runny/Stuffy Nose Protocol” (NTP 41) to the “Chest Pain Protocol” (NTP 9). As with the training described above, the goal of NTPs is to enable NDCS LPNs to manage a broad a broad spectrum of medical problems independently. However, a simple one-page paper form cannot replace the years of training and experience required to manage safely a range of medical problems. An example of the gross insufficiency and danger of a one-page8 “recipe” can be found in NTP #44 Shortness of Breath. Shortness of breath may be the result of a problem with the lungs, but very often it is the result of a problem with the heart. However, NTP #44 only instructs LPNs to examine a patient’s lungs, ignoring examination of the heart (other than measuring vital signs). It can be difficult to correctly diagnose a heart condition without examining the heart, and a misdiagnosis puts the patient’s health at significant risk.
26. Consistent with the standard of care in other states, the opinion of the Nebraska Board of Nursing is that protocols may be acceptable tools for nurses. See Advisory Opinion, Nebraska Board of Nursing, Department of Health and Humans Services, Spring, 2013. However, NDCS NTPs are not designed or used in a manner consistent with this opinion.9 First, an acceptable protocol has specific instructions, including step-by-step algorithms. Many of NDCS’s NTPs do not. Second, because, according to the Board of Nursing, “A nurse may not
8 With the 2018 revision of the protocols, NTP #44 was reformatted to two pages with almost the same content as the previous one-page version. 9 In his deposition testimony, Dr. Deol stated that he believed NDCS’s NTPs were “standing orders.” (page 158) In my opinion the Nurse Treatment Protocols are indeed “protocols” as described by the Board of Nursing. However, the semantics notwithstanding, the usage of NTPs by LPNs would not be safe nor consistent with the standard of care, including the standard articulated by the Board of Nursing.
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practice under standing orders or protocols that require the nurse to make medical judgments outside the nurse’s scope of practice,” protocols are tools to be used by RNs. This would be especially true of NDCS’s NTPs which require the nurse to use a considerable amount of complex judgment.
27. Throughout this declaration I provide numerous examples of dangerous care provided by LPNs when operating independently in all the settings to which they are assigned. A great risk flows from the use of LPNs to provide emergent, urgent, and routine health services on a regular basis, well beyond what is safe based on their training, expertise, and licensure. This risk extends to all NDCS residents at all times.
2. Use of Inmate Porters 28. Based on my interview of staff, interview of inmate porters, and direct observation, I discovered that NDCS engages incarcerated individuals as porters to aid in the delivery of medical care in the SNFs at DEC, NSP, and TSCI. If implemented appropriately, inmate porter programs can be positive programs that provide sick patients with basic assistance while giving the inmate porters a valuable skill. It is the standard of care for incarcerated individuals to provide assistance with activities of daily living (e.g. ambulating or wheeling, eating, dressing, etc.). The program at NDCS does not meet the standard of care. While NDCS porters generally support patients in their activities of daily living, NDCS porters also conduct clinical tests on patients (measuring of vital signs, measuring blood sugar levels) and at one facility they also access the patients’ medical record to enter the results. This problematic provision of direct patient care is also supported by NDCS official policy. AR 115.02 Health Personnel Management, Section VI.A (the second Section VI.A – there are two Section VI.As in this policy) allows other incarcerated individuals to “Perform[] direct patient care services [as
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long as they are] trained and certified to provide such services.” It is not within the standard of care for porters to be involved in the direct delivery of clinical care, regardless of training, nor to have access to another individual’s medical record.
29. The provision of direct patient care services and access to medical records by another incarcerated individual is dangerous for two reasons. First, it places one person in a position of potential control of another through coercion. Second, it violates patient confidentiality, with the same attendant risks as I describe in Paragraph 73. NCCHC’s Standard P-C-06 Inmate Workers also states, “When inmate workers are used as adjunct health staff, there is increased risk to the patient…” Interestingly, Dr. Deol also believes that porters should not be allowed to measure vital signs or make entries in the medical record, according to his deposition testimony. Deol Dep. 142:16-143:1. Yet the practice continues.
30. In summary, NDCS allows porters to monitor patient health status through the measurement of vital signs, and allows the porters access to the medical records of others. This practice puts patients at risk of harm through control and coercion by other residents and through breach of the confidentiality of their protected medical information. The dangers of this practice are limited, at any moment, to those patients in one of the male SNFs. However, any male resident might be ill enough at any point in time to find themselves in that setting.
3. Orders Not Followed 31. A basic tenet of correctional health care is that patients must receive the care that is ordered. In a safe prison health care system, nursing and other staff execute practitioner orders correctly and in a timely manner. The system in place in NDCS for assuring that medical orders are followed is unreliable. Though I was unable to determine the reason this system is broken at NDCS from my investigation to date, based on my experience in other institutions, it will be the
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result of some combination of inadequate numbers of staff, inadequate level of staff (i.e. licensure and experience), inadequate policies, inadequate training, inadequate support systems such as computer trackers and reminders, and inadequate supervisions. Elsewhere in this report I provide examples of this failure as it relates to activities such as administration of medication by nurses, or escorting of patients to clinic by custody. In this section, I focus on non-medication related failures by medical staff, as illustrated in the following examples.
• Patient 2810 at LCC was involved in a fight. He was evaluated by an LPN. He had bruising and lacerations around his head. The LPN contacted the Medical Officer of the Day,11 who ordered for the patient to be reassessed in the morning. The order was ignored in the morning. When the patient was finally reassessed at 14:30 he was found to have a serious head injury requiring evacuation to the ER by ambulance with immobilization of his neck. He had a fracture of the skull (and could have had more serious injuries such as a fractured neck and bleeding in the brain), treatment of which was dangerously delayed.
• Patient 18 at NSP has a medical history that includes stroke, blood clots in the leg (deep vein thrombosis), asthma, and heart disease with previous open heart surgery. At 11:00 he suddenly developed chest pain, nausea, and “shaking badly.” The LPN who initially managed him called the MOD who ordered the patient to be admitted to the SNF for monitoring and to recontact him/her if the patient didn’t get better or got worse. At 14:00,
10 Patient names are omitted to protect confidential health information. A confidential patient key is provided as Exhibit 3. 11 As discussed in Paragraph 55, the physician on-site at a prison is generally referred to as the Medical Officer of the Day (or “MOD”).
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an RN examined the patient and released him from the SNF, in violation of the doctor’s order.
32. In summary, medical orders are not reliably followed at NDCS. Depending on the condition being treated and the order, this can cause harm to patients. Any individual receiving care in NDCS is at risk of this harm.
4. Clinical Decision-Making 33. In this section I describe poor clinical decision-making and practice by healthcare professionals in NDCS. The sections of the report are not mutually exclusive, and thus many of the examples of subpar practice that I provide in this section could easily have been placed in other sections of the report, and vice versa. Generally the examples in other sections are tied to a discernable system weakness or error. In this section, I describe the clinical error. 34. Typically when clinical decision-making and practice in a prison is poor, one or more of the following underlying system weaknesses exists: understaffing; subpar salaries; inadequate policies; poor training; and inadequate supervision or oversight. I do not currently have enough information to come to conclusions about each of these potential defects. I found some evidence to suggest that facilities may be understaffed. For example, according to their respective nursing supervisors, LCC is forced to rely for the majority of its nursing force on temporary employees and NSP also is forced to rely on temporary nurses, and even then operates with empty posts. Similarly, the deposition testimony by Dr. Deol suggests that state-level organization and oversight may be weak. I reserve the right to supplement my opinions regarding underlying system weaknesses upon receipt and review of additional materials. 35. I divided the examples of clinical decision-making below into three groups. The first group describes errors in judgment or care by nurses. Due to unclear documentation, I was
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not always able to determine if the nurse were an RN or LPN. The second group describes errors by MODs when contacted by facility staff during non-business hours. The third group captures errors in judgment that involve two or more professionals making decisions in tandem. The significance of this group is that one of the safety mechanisms in any complex system is that an error committed by one person or process should be caught and corrected by a redundant person or process in the system. These are examples where even the redundancy failed.
Nurses • Patient 9 at DEC was seen by an RN for a rash on his neck. The nurse used NTP #40
Rash. Following the NTP, the nurse asked the patient if he had shortness of breath, to which he answered yes. Shortness of breath in the setting of a rash suggests that a patient might have a serious life-threatening condition, such as anaphylactic shock, which might require an injection of medication and evacuation to the ER. Thus the NTP appropriately requires the nurse to contact a practitioner immediately. Instead, the nurse ignored the instruction from the NTP, gave the patient an allergy medication and sent him on his way. The nurse thus placed the patient at serious risk of harm, including death.
• Patient 34 at LCC was seen by an RN for dizziness. He had a history of blood clots for which he was on a blood thinner. He exhibited lightheadedness when he stood up in the presence of the nurse. This symptom, especially in a patient on blood thinners raises the possibility that the patient has internal bleeding, which is a medical emergency. The nurse needed to measure the patient’s orthostatic vital signs (blood pressure and pulse standing and lying) to assess for bleeding, and needed to contact the MOD immediately for further instructions. The nurse did none of this.
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• Patient 5 at LCC was urgently brought to the medical unit in a wheelchair by a custody officer12 (“CO”) for chest pain and nausea. At 21:50 an RN gave the patient aspirin. At 21:56 the RN gave the patient nitroglycerin. At 22:20, due to continuing pain, the nurse finally called the MOD who gave instructions to immediately send the patient to the ER. The nurse was following the steps of NTP #9 Chest Pain. However, the intent of this protocol in the setting of a patient with chest pain severe enough to require emergency heart attack medications (aspirin and nitroglycerin) is to allow the nurse to begin treatment simultaneously with attempting to contact the physician. It is not intended as a diagnostic tool to see whether the patient responds to treatment before contacting the physician. In the presence of a heart attack, the nurse’s 24 minute delay between when she began treatment and when she first sought assistance from the MOD would place the patient at high risk for a worse outcome (larger heart attack or death). Further, the nurse’s decision-making was fundamentally flawed in that whether the aspirin and nitroglycerin caused the patient’s pain to resolve or not would have had no bearing on the MOD’s decision to send the patient to the ER. Thus the nurse’s 24 minute delay was not only dangerous, it was purposeless.
• Patient 2 at LCC was found unresponsive by COs who called nurses emergently. When the nurse arrived, the patient was weak and was clenching his teeth. His blood sugar level was very dangerously low (38, normal approximately >60), a level that can cause death. The nurse tried to give the patient orange juice, but he refused to open his mouth, presumably due to the effects of the low blood sugar level on his brain. The nurse tried to
12 NDCS’s custody staff is comprised of correctional officers, corporals, case workers, and supervisors. For simplicity, I use the generic term “custody officer” in this report except where further distinction is relevant.
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give the patient a sugar tablet, but he spit this out. His blood sugar now dipped to 26. The nurse then called the MOD. The MOD did not answer the phone, so the nurse left a message. After “20-30 min” his blood sugars increased to a safe zone (186 – 238) and he started waking up. The MOD finally called back and ordered the patient sent to the ER (due to a lack of beds in the SNF). NTP #28 Hypoglycemic Reaction, and minimally acceptable nursing practice, required the nurse to contact the MOD immediately upon discovering a patient with such a low blood sugar in the presence of mental status changes and inability to take anything by mouth. While this case ended well, if the patient’s blood sugar had not increased on its own, it could have resulted in permanent brain damage or death, and the nurse’s delay of 20-30 minutes before seeking assistance from the MOD could have made the difference between a good and bad outcome.
• Patient 48 at TSCI was seen by a nurse for heartburn of 1-week duration. The nurse managed the patient using NTP #24 Heartburn and treated him as if he only had an upset stomach, sending him back to his living unit. Heartburn is a symptom, and while it is usually the result of benign digestive upset, it can also be a symptom of more serious problems, such as a heart attack. Given the patient’s history of diabetes, high cholesterol, and age (68) the chances of this being a heart attack increases greatly. Thus this system of care that allows nurses (and in this case, possibly an LPN) to manage a complex patient with a one-page NTP is patently dangerous,13 as I describe in more detail in Paragraph 25. The use of the NTP, without oversight by a practitioner, resulted in the nurse simply
13 NTP #24 does instruct the nurse to “Be Alert For Possible Cardiac Source” of the heartburn and to refer to the Chest Pain NTP. However, making the decision that the heartburn is the result of a “possible cardiac source” and that referral to the Chest Pain NTP is now needed, is itself a complex task, well beyond the training and licensure level of an LPN.
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treating the immediate symptom rather than considering the much more serious underlying cause The following day the patient complained of chest pain. A nurse managed the patient, this time using NTP #9 Chest Pain14. At 13:29 the nurse performed an electrocardiogram, the computerized interpretation of which indicated a possible heart attack. At 14:35 the nurse administered. At some point in time, the patient was sent to the ER15. In the hospital, the patient was found to have a serious heart ailment.16 The nurse’s delay of at least 1 hour and 6 minutes – if not much longer, as the problem could have been identified the previous day – placed this patient’s health at significant risk.
Medical Officer of the Day • Patient 24 at LCC was brought to the medical unit by a CO concerned that the patient had stopped drinking water due to urinary urgency. Upon examination by a nurse the patient appeared acutely ill and was complaining of urinary urgency, burning on urination, and feeling cold. His vital signs were markedly abnormal (blood pressure 206/82, normal <140/80; pulse 108, normal <100; temperature 103.5, normal 98.6). A repeat blood pressure was close to normal (144/7717). The nurse tested the patient’s urine which was abnormal (“large LE” indicating the presence of infection). This set of findings suggested that the patient was quite ill, with a problem much more severe than a simple urinary tract
14 The nurse’s documentation is poor: the NTP is missing a date and time. I inferred that it belongs to this event. 15 This part of the documentation is also very poor. I was unable to discern at what time this occurred, who gave the order, or by what means the patient was transported. 16 This part of the documentation is also quite poor, so I was only able to determine that a stent was placed in his heart, but was unable able to determine if this was due to a heart attack (“STEMI” or “non-STEMI”) or just blocked arteries (cardiac ischemia). 17 Though near normal, this blood pressure should have been very unexpected at this point; it most likely either meant it was an error or that the patient’s condition had actually gotten worse. It should have been viewed with skepticism and been repeated, along with the other vital signs.
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infection, and immediately required further evaluation and then treatment, either in the prison, or in the hospital. Instead, the MOD simply ordered for the patient to receive an oral antibiotic and have his urine tested again in the morning.
• Patient 28 at LCC was involved in a fight. An LPN evaluated him using NTP #50 RHU [Isolation Unit]. The LPN identified bruising around the patient’s right eye and lacerations. She contacted the MOD. Without requesting further evaluation, the MOD simply instructed the LPN to have the patient return to his living unit and be reassessed in the morning. The LPN’s description of injuries to the head suggested the possibility of head and neck injuries, injuries which can be rapidly life-threatening. Thus the MOD’s decision was severely deficient and dangerous. Indeed, when the patient was finally reassessed the following afternoon (as described elsewhere, the order to reassess the patient in the morning was ignored), he was found to have internal bleeding around the eye and a tender neck vertebra. His neck was immediately immobilized to prevent a severed spinal cord, and the patient was sent to the ER where a concussion and fractured facial bone were discovered.
Two or more professionals • Patient 35 was brought to the medical unit a few months earlier because he “almost fainted last night.” He was evaluated by an LPN using NTP #14 Dizziness, Fainting or Syncopal Episode. His orthostatic vital signs were significantly abnormal (lying: blood pressure 131/96, pulse 89; standing blood pressure 127/97, pulse 109) suggesting that he might be dehydrated. The LPN wrote in the chart “no major change in BP after orthostatic BP taken.” The LPN provided no treatment and told the patient a practitioner would review her note and follow up if needed. In fact the orthostatic vital signs were not 21

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normal, but the LPN did not understand how to interpret them. Dehydration can be harmful in a number of ways, not least of which in this particular patient, was the risk of falling and injuring himself. Thus independent care under the auspices of an LPN was dangerous. The error was compounded by two subsequent errors. First, the LPN’s note was not reviewed the next day as ordered. Instead it was not reviewed until 7 days later. Thus the patient remained at risk for harm this entire time. Second, when the practitioner finally reviewed the chart, despite the abnormal orthostatic vital signs, the practitioner did nothing, leaving the patient at risk.
• Patient 11 at DEC was seen in clinic by an LPN for dizziness. The nurse managed the patient independently using NTP #14 Dizziness, Fainting or Syncopal Episode. The patient stated that he also was experiencing numbness on the right side of his body. The LPN failed to obtain any other important information such as the duration of symptoms. When performing orthostatic vital signs (instructions for which are articulated in the NTP), the LPN ignored the instructions, performing the vital signs in the sitting position instead of the lying position (which significantly reduces the accuracy of the test). The LPN also tested the patient’s blood sugar. It was markedly elevated (346, normal approximately <130-180). Given his symptoms, the patient may have been suffering from a serious condition, such as a stroke, and was definitely suffering from a markedly abnormal blood sugar and required emergency referral. Instead, the nurse discharged the patient without diagnosis or treatment. The nurse’s errors were compounded by the practitioner who reviewed the LPN’s note the following day, but also took no steps to further evaluate the patient nor treat his elevated blood sugar.
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C. Intake Screening 36. Transition into a prison is an important juncture in the care of a patient. Clinical information must move across the prison threshold, along with the patient, to ensure that the patient receives all necessary care in a safe manner. Key clinical information that moves with the patient includes such items as the patient’s history, current active problems and plans of care, upcoming appointments, allergies, and current medications. 37. Intake screening is complex and all individuals within a correctional system are exposed to the process. During Intake, an individual is supposed to be interviewed by an appropriately trained and credentialed health care professional who should collect information about the patient’s medical history, diagnoses, and medications, and make a determination of the patient’s current health status and needs, including medication needs. Intake screenings must be conducted in a timely manner, usually within minutes to hours of arrival at the facility. This is to ensure the patient is healthy enough to be admitted to the facility and to begin to provide necessary medical treatment. 38. One key piece of information is determining if the patient has active or dormant tuberculosis (“TB”). Screening for active TB is important and urgent because active TB presents an immediate risk of transmission to staff and other residents. Screening for latent TB is important for a number of reasons, including it identifies carriers of TB who may benefit from preventive treatment. For this reason screening for latent TB is less urgent than screening for active TB and is therefore usually accomplished during the first week or two after admission. Screening for latent TB is accomplished by skin testing (“PPD”), which takes at least 2 days, whereas screening for active TB is accomplished primarily through careful questioning and observation of the patient by the health care professional; skin testing is inadequate for screening
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for active TB because it not only takes too long, but also can be inaccurate in some cases. Based on the information collected during questioning and observation of the patient for evidence of active TB, the professional makes a determination (“assessment”) if the patient is healthy enough to safely be placed in general population (for their own safety and the safety of others). If the patient has signs and symptoms of active TB, for example, the professional would immediately quarantine the patient, placing him or her in a room with special ventilation. In the absence of active TB, during Intake (or within the next few days) the individual is screened for dormant TB with a PPD skin test or blood test; the skin test is “read” 48 to 72 hours later.
39. At NDCS all male intakes are conducted at DEC and female intakes are conducted at NCCW. I observed Intake at DEC and reviewed intake documents from DEC and NCCW. Based on my observations and review of documents, several systemic problems exist with Intake at NDCS.
40. First, LPNs conduct Intake screenings at NDCS.18 Such screenings are assessments that can require considerable clinical expertise and judgment. As explained in more detail elsewhere in Paragraphs 21-27, LPNs do not have the expertise, nor are they permitted under their licenses, to exercise such judgments. Thus, by policy and practice, transitions into NDCS prisons are unsafe for individuals who are screened by LPNs.
41. Second, NDCS policies and practices regarding TB screening are dangerous and do not meet the standard of care. Nurses screening patients during Intake fail to adequately screen for active TB; fail to make sure the patient has not already had a positive skin test for TB in the past before injecting a patient with a new skin test; and fail to properly evaluate patients
18 According to Dr. Deol’s deposition testimony, LPNs are not allowed to conduct Intake evaluations. However, in fact, they do so (see, for example the Intake evaluations of Patient 39, Named Plaintiff Sabata and Named Plaintiff Norris).
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for false negative TB skin tests. My conclusions are based on my direct observation of Intake screening, my conversation with one of the nurses who conducts them, my review of multiple Intake screenings performed on patients (examples, among the many, include Named Plaintiff Norris, screened through NCCW; Named Plaintiff Sweetser, screened through DEC; and Named Plaintiff Cardeilhac, screened through DEC), and, by design, based on the NDCS-designated screening form nurses use.
42. During intake screening, nurses ask the patient two relevant questions: Does the patient have a chronic cough?; Does the patient have a bloody cough? However, they fail to assess (by direct observation) whether the patient has a cough or evidence of loss of weight at the time of intake, and fail to question the patient regarding other symptoms: chest pain, fever, chills, night sweats, easy fatigability, loss of appetite, and loss of weight. This failure is found in both practice and written policy. Failure to properly screen a patient for active TB risks allowing the patient to be placed in a housing unit, undiagnosed. This not only puts the patient him/herself at risk for progression of a potentially fatal disease, but also puts all other residents and staff at risk for contracting the disease.
43. Nurses also fail to make sure the patient has not already had a positive skin test for TB in the past, before injecting the patient with a new skin test. A positive skin test at any point in a patient’s life is sufficient evidence that the patient has had a TB infection. There is rarely any clinical value in re-testing the patient (“once positive, always positive”). The danger in repeating the skin test is that if the previous test resulted in a severe skin reaction (ulceration, bleeding, and possible pain at the test site for weeks, along with risk of infection), it is more likely that the same thing will happen if the patient is tested again. I found that nurses do not first check with the patient to determine whether they have ever had a severe reaction to a TB skin
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test.19 This practice is also endorsed by NDCS policy.20 They thus unnecessarily subject patients to a serious side effect of testing.
44. Health care staff also fail to properly evaluate patients for false negative TB skin tests that result from a patient’s waning immune response. To assess whether an initially negative TB skin test is a true or false negative, a second test TB skin tests should be performed at least a week after the first test. If repeated too soon, the result may still be negative. This would result in an error: failure to diagnose dormant TB. The patient would therefore not receive treatment for dormant TB. Treatment for dormant TB is important because some patients with dormant TB spontaneously develop active TB, which presents risks to themselves and others. The practice at DEC is for nurses to inject a second skin test if the first one is negative. However, according to an Intake nurse, they do so 3 to 5 days after arrival, which is too soon according to CDC guidelines and NDCS’s own policy. As a result, patients with dormant TB may be misdiagnosed as TB-free. This failure to diagnose and treat dormant TB puts patients (and the other residents and staff around them) at risk of serious harm.
45. Third, there is evidence that intake screenings are not conducted in a timely manner. According to his deposition testimony, Dr. Deol expects that all individuals newly admitted to NDCS to receive his or her intake health screening within 24 hours of arrival. He
19 The nurse I interviewed told me she would not inject the skin test if the patient were to tell her that he has had a severe skin reaction in the past. However, this is insufficient because most patients do not understand what is happening or the risk involved, and may not think to share this information. 20 Administrative Regulation (“AR”) 115.15 Serious Infectious Disease, Section III.C.1 states “At the time of entry into NDCS, all inmates shall be tested by facility medical staff for Tuberculosis unless there is documentation of a previous positive test result. All positive tests will undergo chest x-ray.” This passage is deficient in that it instructs staff to proceed with testing unless there is documentation of a previous positive. However, if documentation were lacking, but a patient reported a positive reaction in the past, the nurse should not proceed with skin testing without further efforts. Either the nurse needs to make sure the previous positive reaction was mild, or should check with a practitioner. For the reasons described above, this practice unnecessarily subjects patients to a serious side effect of testing.
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believes that NDCS currently fails to meet this goal, achieving it in only 90% of cases. Deol Dep. 37:12-17. I did not independently confirm Dr. Deol’s assertion, but assuming Dr. Deol’s data is correct, the intake screening process at NDCS is dangerous. Intake screening is supposed to be accomplished as soon as possible after arrival. According to the standard of care, this translates to minutes to a very few hours. Indeed, part of the purpose of Intake screening is to assure that the arriving individual is healthy enough to be admitted and to begin any needed treatments. The Operational Memorandum governing all intake screenings for male inmates appropriately requires that initial medical screenings must be completed “immediately upon . . . arrival at the DEC.” OM 115.5.3.1. In addition, AR 115.05 Health Screenings, Examinations, Appraisals and Reviews Section II.D., states that “Patients who are unconscious, semiconscious, bleeding, or otherwise obviously in need of immediate medical attention are referred. When they are referred to an emergency department, their admission or return to the facility is predicated on written medical clearance.” Surely the OM and AR do not envision that the procedure to meet these goals could possibly be safe if they begin— in 1 out of 10 individuals—more than a day after arrival.
46. In conclusion, the intake screening process at NDCS presents substantial risk of serious harm to all patients, due to delays in screening, undertrained staff, and TB screening that does not meet standards of care. The evidence for these errors comes from stated NDCS procedures as well as observation of practice and review of medical records. Errors were noted with regard to named plaintiffs and others. These errors would be expected to affect any individual who enters NDCS. These errors have the potential of causing significant harm to patients directly; some of the errors—specifically those related to diagnosis and treatment of
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TB—also have the potential of causing harm to other incarcerated individuals in their proximity (as well as staff).
D. Access to Care 47. Health care in prison is generally administered in two settings: outpatient and inpatient (e.g. infirmary, skilled nursing facility). Care in the outpatient setting can be further subdivided in the following categories: emergency care; urgent care, non-urgent episodic care (sometimes referred to in NDCS as “sick call”), chronic care, isolation unit-related care, and offsite specialty care (which I did not review for this report). Care in these categories is primarily distinguished by the method of access irrespective of the severity of the condition. In other words, for example, a patient may approach a CO asking to see a nurse. This is classified in my report as urgent care because the patient is making use of the urgent care pathway to access care. However, from a clinical standpoint, the patient’s need might be severe and constitute a clinical emergency. 48. Once a patient accesses care, the quality of care he or she receives from health care professionals then becomes relevant. I discuss the quality of such care at Paragraphs 33-35.
1. Emergent Care 49. Provision of emergency care in the correctional setting is critically important. The standard of care for an emergency requires, among other things, that a qualified health care professional is available to respond to the patient’s side immediately for treatment, armed with the necessary medical equipment, and following standard procedures for treatment of conditions such as cardiac arrest. 50. Most emergencies occur outside the health unit. At NDCS, when an emergency is recognized by a CO, it is the CO who triggers the emergency response system, without the
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necessity of a patient request. Based on my observations and review of documents, several problems exist with emergency care at NDCS.
51. First, medical staff at NDCS do not always respond to medical emergencies. It is the standard of care that if medical staff are on duty at a prison facility, they will respond immediately to a medical emergency (COs are only trained to provide first aid until the arrival of medical professionals). At NSP, according to the on-site health care manager, on 6 out of 7 nights there is only one nurse on duty in the facility. Because the single nurse must remain in the SNF at all times, by design, no medical professional responds to medical emergencies at these times. Instead, COs, limited to providing first aid, transport the patient across the NSP campus on a gurney (which can be a distance of over one fifth of a mile) to the medical unit. Thus if the patient’s condition is such that he requires a higher level of care than first aid, such care is delayed, which may put the patient at significant risk of harm. As NSP houses minimum, medium and maximum security inmates, any male inmate is subject to being transferred to this facility and thus subject to this significant risk of harm. I was not told of such a staffing limitation at NCCW, but I found evidence that nurses similarly do not respond to the location of a medical emergency which results in the same type of risk found at NSP, as shown in the two cases below. In the second case, not only did the nurse not respond to the emergency, she also chose to not care for the patient.
• Patient 37 has a history of heart problems. She complained of 6-out-of-10 pain in her left chest radiating to her left arm (pain that is very typical of pain caused by heart damage) while walking in the prison yard. Rather than the nurse responding to the patient in the yard, the patient was brought to the medical unit by custody. Further increasing the danger to the patient, the patient was walked to the medical unit, rather than bringing her 29

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by gurney or wheelchair. When she was finally evaluated, it was felt that her condition was serious enough to require immediate evacuation to the hospital by ambulance.
• Patient 45 has a history of seizures. She had a seizure. Presumably as part of an emergency response, a CO contacted the nurse. A seizure is an emergency until proven otherwise, and thus the nurse should have gone to the patient’s side in the living unit. Instead, the nurse instructed the CO to send the patient to the medical unit. The nurse was informed by the CO that the patient “refused” to go to the medical unit, so the nurse’s plan was to have the CO execute a refusal-of-care form. While most seizures in patients with established seizure disorders are not life-threatening, once summoned, the nurse needed to at least evaluate the patient. A “refusal” in this setting cannot be assumed to be an informed refusal (which is required) because following a seizure – especially if it resulted in a head injury – a patient might not have the requisite mental capacity to make an informed decision in her own best interest. Further, as described elsewhere, in a prison environment, there may be reasons – other than a patient’s volitional decision – that a patient does not report for a visit. Thus the nurse had an obligation to go to the patient’s bedside and either conduct a proper evaluation, or execute a proper informed refusal. In this patient’s case, the problems in care extended beyond the emergency in chronic care. It appears that the seizure was likely the result of the patient not getting or taking her seizure medications, something a minimally adequate evaluation of the seizure by the nurse would have revealed. Instead, I could find no evidence that the practitioner was notified of the medication problem nor, that as of more than a month later, anyone scheduled a visit for the patient with the practitioner to discuss the medications and address the seizures. Given seizures can, at times, be dangerous and given that this 30

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patient’s seizures might be avoidable by a change in treatment, this lack of follow-up care for the emergency put the patient’s health at risk.
52. Second, when medical staff do respond to medical emergencies in NDCS, they may not have the proper equipment. When responding to an emergency in a prison, medical staff should do so equipped with sufficient materials, including sufficient medications, to provide emergency care for most common emergencies and to stabilize the patient until the arrival of EMS responders or transport back to the medical unit. For example, staff should be equipped with: aspirin, which should be administered as soon as possible to a patient suspected of having a heart attack; nitroglycerine, which should also be administered as soon as possible during a heart attack; and glucose, which should be administered as soon as possible to a patient suspected of suffering from low blood sugar. The equipment should be checked on a regular basis to make sure that all necessary supplies are present and in working condition.
53. During my visits, I found numerous problems with the emergency response equipment at NDCS facilities. Emergency response equipment is kept in an emergency response bag (“bag”). None of the bags contained nitroglycerin or aspirin. At LCC, the bag contained a solution for irrigating eyes, but it had passed its expiration date. Even though there was no nitroglycerin in the bag, where it should be for rapid deployment, LCC staff did maintain nitroglycerin in a drawer in the medical unit. However, the medication had passed its expiration date. At NSP, the contents of the bag are not checked on a regular basis. Review of the log of daily checks revealed numerous long stretches of time when no one checked the contents. The bag (as do the bags in all the prisons) has numerous compartments for different supplies. The compartments of the bag at NSP are labelled with the contents of that compartment to help staff rapidly find the supply they are looking for during an emergency. However, upon inspection of
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the bag, I found that emergency supplies were placed in compartments irrespective of the label on the compartment, introducing a delay in providing emergency care. The bag was also missing oropharyngeal airways, important for providing effective ventilation to someone who has stopped breathing. The bag at NCCW was also missing airways. Each of these deficiencies increases the chance that medical staff will not be able to provide proper care during a medical emergency.
54. Third, when medical staff respond to medical emergencies in NDCS, the person responding may be unqualified to do so. In a safe prison health system, the medical professional who responds to an emergency is generally an LPN, RN, or practitioner. If the responder is an RN or practitioner, he or she can seek assistance from a higher authority or, if within their capabilities, manage the emergency independently, conducting an assessment and implementing a treatment plan. However, if the responder is an LPN, he or she can only provide initial care, after which he or she must seek assistance from a higher authority (which would either entail consulting with an RN or practitioner, or evacuating the patient to the ER). NDCS uses LPNs interchangeably with RNs as medical professionals who may respond to an emergency. As explained in more detail elsewhere in Paragraphs 21-27, LPNs do not have the expertise, nor are permitted under their licenses, to provide such care independently. Despite this, LPNs who respond to emergencies not only provide initial care, but also sometimes manage the emergency independently, without seeking the appropriate assistance from an RN or a practitioner. Thus this practice, found throughout NDCS, and to which all patients are exposed, is patently dangerous, as illustrated by the following examples.
• At TSCI, Patient 13 experienced an emergency due to shortness of breath. An LPN responded and treated the patient using NTP #44 Shortness of Breath (see Paragraphs 2532

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26 for more details about these protocols). The LPN found out the patient had shortness of breath on exertion but also at rest. On examination, he had abnormal breath sounds (wheezes) throughout his lungs. The LPN managed the patient independently without consultation from any higher level clinician and the LPN did not arrange for any further monitoring or follow-up care. Given the patient’s history of emphysema and the fact that the wheezing was a marked change from the patient’s baseline, this was a serious event with potentially life-threatening outcomes if mishandled. In fact, no further monitoring took place, and several weeks later the patient became very ill again requiring evacuation to the ER. The use of an LPN to independently manage this emergency put the patient’s life at risk.
• At TSCI, Patient 1, a patient with a history of seizures, experienced an emergency due to a seizure. An LPN responded and treated the patient using NTP #43 Seizures. The LPN managed the patient independently without consultation from any higher level clinician and did not arrange for any further monitoring or follow-up care. While seizures are often self-limited problems in patients with such a history, their presence may be an indication of a new or worsening problem, requiring an evaluation for which an LPN does not have the expertise, training, or licensure. The use of an LPN to manage this emergency independently put this patient at substantial risk of harm.
55. Fourth, on-call practitioner assistance is not always available to nurses faced with an emergency. In most prisons, there are times of the day/week when no physician is on-site. It is the standard of care that during those hours a practitioner is immediately available to the nurse by phone (generally referred to as the Medical Officer of the Day or “MOD”). However, I found instances at NDCS in which this was not the case. For example:
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• At TSCI, Patient 1 was found unconscious. An RN responded to the emergency at approximately 18:40. The patient then experienced a number of seizures; he had a history of a seizure disorder. At 19:30 the nurse called the MOD (a physician assistant) for consultation. There was no answer; the nurse left a message. The physician assistant did not return the nurse’s call until 18 minutes later at 19:48, at which time the PA instructed the nurse to send the patient immediately to the ER. Multiple seizures in a row, as experienced by this patient, are serious, potentially life-threatening, and require immediate attention. The almost-20-minute delay in the response of the MOD put the patient’s health at significant risk.
56. Fifth, NDCS has a practice with regard to management of patients whose hearts have stopped which markedly reduces the effectiveness of treatment, and thus reduces the likelihood of survival. When a patient’s heart stops in a prison, the standard of care provides that first aiders (usually COs) are supposed to begin and continue cardiopulmonary resuscitation (“CPR”) until arrival of medical staff. Medical staff continue CPR until arrival of community EMS personnel who are escorted directly to the scene. Depending on their training, community EMS personnel provide either Basic Life Support (“BLS”) or Advanced Life Support (“ALS”). ALS personnel generally provide sophisticated interventions at the scene, including intubation (placement of a breathing tube in the lungs) and medications to revive the heart, with a goal of restarting the patient’s heart (and discontinuing CPR) prior to moving the patient to the ambulance. They generally “set up shop” and provide these interventions at the scene rather than move the patient to their ambulance because a) time is of the essence, and b) it is difficult to provide good quality CPR while moving a patient to an ambulance. Thus when ALS services are
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available, a patient has the best chances for survival if first responders perform CPR at the scene, without moving the patient, until the arrival of community EMS personnel.
57. It is my understanding, based on conversations with NDCS staff and publically available information, that ALS services provided by community EMS responders are available at all facilities except TSCI, yet NDCS does not follow this standard of care. Instead, at NDCS facilities, when a patient’s heart stops, custody staff or medical staff move the patient – while trying to perform CPR – to the front of the facility, where they are met by EMS personnel. Because it is very difficult to administer effective CPR while moving a patient across a prison campus, and because survival from a cardiac arrest depends highly on performance of effective CPR, NDCS’s practice of moving patients to the front of the facility (rather than continuing effective CPR on scene, and escorting EMS personnel to the scene) reduces the patient’s likelihood of survival.21
58. In conclusion, there are errors in the way medical emergencies are managed in NDCS. These errors result in significant risk of harm to patients. As any individual incarcerated in NDCS is liable to have a medical emergency at any time, the named plaintiffs, as well as all other incarcerated individuals are exposed to this risk.
2. Urgent Care 59. In this report, I define medical urgency as a situation other than an emergency in which a patient believes he or she requires medical care that cannot wait until the next scheduled clinic, and therefore seeks the assistance of a CO in obtaining care at that moment.
21 Community EMS responders to TSCI provide BLS, not ALS, level care. BLS responders do not have the treatment capabilities of ALS responders, and they will have to move the patient to the ambulance while performing CPR. Therefore, at TSCI, NDCS’s practice of moving patients to the front of the prison while performing CPR is not worse than waiting for EMS before moving the patient, and while reducing the amount of time to get the patient to the hospital.
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60. For patients to have safe access to urgent care, three successive steps must take place without barrier. First, the patient needs to be able to gain the attention of a CO. Second, the CO must pass the request to a medical staff member. Third, once aware of the medical need, the medical staff must respond as appropriate. Based on my observations and review of documents, access to urgent care is significantly impaired at NDCS due to problems with all three of these steps. It is important to note that NDCS has a system for access to care for non-urgent episodic needs (described in more detail in Section VI(D)(3)). However, access to care through this latter system takes from one to several days, which would not be a safe interval for many urgent medical needs, hence the need for a separate system for access to care for urgent problems.
61. First, as an initial matter, official NDCS policy actually discourages residents from seeking urgent care by contacting a CO. The Inmate Handbook that residents receive upon admission to NDCS instructs residents to contact COs for “emergencies.” This instruction asks residents de facto to triage their complaint between urgencies and emergencies, and does not provide them a safe pathway for obtaining access to urgent (but non-emergency) care. Because non-clinical personnel (including patients) do not have the knowledge and experience to always know the difference between an urgent and emergent need, NDCS policy of discouraging residents from seeking care puts residents at risk of serious harm.
62. Second, even if a resident determines to request urgent care from a CO, it can be difficult for patients to gain the attention of a CO at night. Residents reported this at TSCI, NSP, and LCC (residents did not report this at NCCW, and I had insufficient data to determine if it happens at DEC). At LCC, patients are expected to flick their room lights on and off to attract the COs’ attention. When this doesn’t work, they try banging on doors. Both methods are “hit and miss,” and so they otherwise have to wait for COs to come around on their rounds. At TSCI
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there are alert buttons in rooms, but a number of residents reported that these are also not always responded to quickly, if at all, in which case they must wait for the next CO rounds. For example, one TSCI resident told me of an incident about one month earlier when another resident was experiencing chest pain. He or his roommate pressed the alert button, but it still took 30 minutes before COs responded. In another example, a different TSCI resident recounted an episode about a year earlier when someone pressed the alert button, but it took COs three hours to respond. A similar situation was documented in another patient’s medical record:
• According to Patient 47’s medical record at TSCI, nurses were summoned by COs to assess this patient. They found that he was short of breath and had chest pain, and upon examination could hear a worrisome type of breathing pattern indicating a breathing obstruction (stridor). His blood pressure was dangerously high (207/119, normal <140/80) and his pulse was also dangerously high (148, normal < 100). The nurse documented that the patient reported pressing his alert button, but receiving “no assistance.” 63. Third, even after gaining the attention of a CO about a medical need, the CO may
not communicate the need to medical staff. According to my interviews with NDCS staff, once a CO is aware that a patient believes he or she needs to see a nurse, the practice throughout NDCS for handling that need is as follows. The CO first makes a decision as to whether, in the CO’s belief, the patient’s medical need is urgent. Based on the CO’s conclusion, he or she will take one of four actions:
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1) The CO instructs the patient to fill out a written request for care (Inmate Interview Request or “IIR”). This form is mailed to the medical unit after which the patient is (usually) scheduled for a visit in one or more days.
2) The CO fills out a “Non-Emergency” form. This form is hand carried to the medical unit shortly after it is written and is immediately triaged by a nurse. The nurse will either contact the CO to send the patient to the medical unit immediately or process the “NonEmergency” form as an IIR after which the patient is (usually) scheduled for a visit in one or more days.
3) The CO escorts the patient to the medical unit.
4) The CO calls a nurse who will either arrange to see the patient at that time, or instruct the CO to instruct the patient to fill out an IIR.
64. It is obvious, then, that a patient’s access to urgent care, relies first and foremost on the CO’s evaluation of the urgency of the patient’s medical need. This decision is a de facto medical triage. These decisions can be quite complex, even for a seasoned clinician. COs do not have the training,22 expertise, or licensure to make medical decisions. But at NDCS, COs make these determinations. Because COs are not qualified to make such decisions, they should notify an RN (or practitioner) immediately of any urgent request for care. But instead, NDCS’s practice of relying upon COs to make these complicated medical assessments, and its lack of policy guidelines directing COs to enable residents to access urgent care, puts patients at risk. For example, a patient with a headache and a little pain in his sinuses probably just has a mild head
22 One NDCS employee informed me that COs receive 15-30 minutes of training annually from a registered nurse or LPN regarding evaluating urgent requests for health care. However, it is impossible to learn, in a fraction of an hour, a skill that requires years to learn.
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cold. However, another patient with the same headache and a little pain and stiffness in his neck, may have meningitis. One CO with whom I spoke stated, “if they’re just vomiting, or something like that, we tell them to fill out an IIR.” The following is a striking example:
• Patient 1 at TSCI has a seizure disorder and had such severe seizures at one point earlier this year, that he required treatment in the ER. The day following his treatment in the ER, he was found by a CO unconscious in the living unit. This is a serious condition that requires immediate medical evaluation. Instead, the lieutenant on duty decided otherwise, and did not emergently summon medical staff. This failure to seek emergency treatment put the patient at risk of serious harm.
65. Third, if COs do decide that medical evaluation is necessary, the evaluation by medical personnel may be dangerous. In a safe prison health system, the medical professional triaging the patient complaint would be a registered nurse (“RN”) or practitioner who would triage in a timely manner. After triage, those patients deemed to require immediate care would be evaluated by an RN or practitioner.
66. At NDCS, by policy and practice, the medical professional who triages complaints (as noted above, these complaints come to their attention either via a phone call or “Non-Emergency” form from COs) is, often, an LPN operating independently. As noted earlier, triaging decisions can be quite complex, even for a seasoned clinician. They require the nurse to know what additional information to collect and to integrate that information into a tentative nursing diagnosis and urgency level (i.e. conducting an “assessment” and formulating a “nursing care plan”). The outcome of an erroneous triage decision (i.e. “There’s nothing urgent – this can wait until we schedule the patient in clinic.”) can be seriously harmful if not lethal.
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67. Sometimes the result of the triage is to have the patient seen immediately. Once again, it is often an LPN who often sees the patient, which, like triage, requires the nurse to make an assessment and nursing care plan.
68. As explained in more detail elsewhere in Paragraphs 21-27, LPNs do not have the training or expertise, nor are permitted under their licenses, to make assessments and nursing care plans independently, skills which are required to properly triage urgent requests and evaluate patients triaged to immediate care. Thus all patients currently in NDCS are subject to a risk of harm if they try to access care through the urgent care pathway and the request is triaged by an LPN and/or the patient is then evaluated by an LPN.
69. The following are examples of dangerous care that resulted from care delivery by an LPN triggered via the urgent care pathway, after triage.
• Patient 21 at NSP was experiencing chest pain for which he was seen urgently by an LPN. His heart was racing (heart rate 112, normal <100). The LPN managed the patient’s care, independently, using NTP #9 Chest Pain, prescribing bed rest, drinking “plenty of fluids” and to return to the clinic as needed. The LPN ignored the patient’s racing heart, which in this scenario was of particular importance and a potential cause of the chest pain. This patient is highly complex, with a history of asthma, emphysema, seizures, hypertension, gastroesophageal acid reflux disease, and a narrowed valve in his heart (AV Stenosis). As such, his chest pain could have been the result of a serious evolving condition, such as a heart attack, for which the lack of further evaluation and treatment at the hands of the LPN, could have been fatal. Further, the LPN’s instruction to “drink plenty of fluids” had the potential of making things worse.
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• Patient 13 at TSCI was seen urgently by an LPN for shortness of breath at 22:15. At that point the level of oxygen in his blood was very low (83%, normal >94%) and he had abnormal breath sounds (wheezing) throughout his lungs. The nurse administered a breathing treatment which resulted in only a small improvement in oxygen level (86%). At 22:35 the LPN finally contacted the MOD who instructed the LPN to immediately send the patient by ambulance to the ER. While the LPN ultimately sought consultation and the patient then received proper care, for 20 minutes the LPN attempted to manage the patient independently. The patient’s initial presentation – shortness of breath, wheezing, and a very low oxygen level – constituted an obvious emergency. The 20 minute delay was dangerous and could have had a much worse outcome.
• Patient 14 at NSP was seen urgently for chest pain. His care was managed by an LPN. Not only did the LPN operate independently, the LPN did not even bother to use any NTP, did not perform any examination (other than measuring vital signs), and sent the patient back to his living unit with antacids. Given the patient’s risk factors (age, prediabetes, possible hypertension, possible high cholesterol) for heart disease, the care he received was grossly beneath the standard of care and put him at a substantial risk of harm.
70. In summary, based on patient interviews, staff interviews, and chart reviews, the three steps for accessing care through the urgent care pathway are dysfunctional in NDCS. Given that any NDCS resident could develop an urgent medical need at any time requiring him or her to obtain immediate medical attention, my review indicates that the system in place for patients to access urgent care places all residents in NDCS at risk of serious harm.
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3. Non-Urgent Episodic Care (NUEC) 71. In this report, I define NUEC as care for a need which is unexpected (episodic), for which the patient believes that care can wait a day or more until a visit is scheduled, and for which care is accessed via the non-urgent episodic care pathway by submitting a written request. Of the various types of care delivered in a prison setting (including NDCS), NUEC is by far the most frequent. Provision of NUEC is essential. While a medical practitioner may have more time to diagnose and treat many non-urgent medical conditions, the conditions themselves may still be serious. Thus, failure to provide access to NUEC still places patients at significant risk of serious harm. 72. For patients to have safe access to NUEC in a prison setting, a number of steps must take place, including: patients are able to easily obtain request forms; patients who cannot communicate in written English have a method for submitting a request; written requests are handled confidentially, i.e. only by medical staff; written requests are reviewed in a timely manner by an appropriately qualified medical professional; all requests describing symptoms or requests for care result in a face-to-face visit (in NDCS this is called “sick call”); the visit is scheduled in a clinically appropriate length of time; the visit is consummated; the medical professional consummating the visit is clinically and legally qualified to do so. Based on my observations, interviews, and review of documents, access to NUEC is significantly impaired at NDCS due to problems with most of these steps. 73. First, written requests for care (IIR) are, by design and in practice, not handled confidentially. IIRs need to be handled confidentially for two reasons. First, patients have a right to privacy regarding their protected health information. In a prison setting, that right may be ignored when there is a superseding legitimate penological interest. However, it is exceeding rare
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for prison administrators to have such a need-to-know where NUEC is concerned. Further, I could find no such legitimate need in any of the examples I found. Second, patient safety can suffer when protected health information is not handled confidentially. If patients believe that COs may learn about their health conditions, many patients will withhold key information. If medical staff are ignorant of this information, they risk making uninformed – and therefore erroneous – clinical decisions. At all NDCS facilities I visited (with the exception of NCCW and the non-isolation housing units of TCSI), patients are expected to place their IIRs in a “General Mail” box in the living units. From there, COs read and sort them and forward them to the appropriate recipient (in the case of health care: dental, mental health, or medical staff). Thus most IIRs in NDCS are, by design, not handled confidentially, violating patients’ rights and risking poor medical outcomes.
74. Second, written requests for care (IIRs) in NDCS23 are, by policy and in practice, sometimes reviewed (triaged) by unqualified medical professional. The review of a written request can require a high level of knowledge and experience to determine a safe time interval in which to schedule the patient for a visit. This is because one must make an assessment of the likely cause of the patient’s symptoms based on minimal information from individuals, many of whom are health-illiterate.24 In NDCS, this task is sometimes assigned to LPNs. As explained in more detail elsewhere in Paragraphs 21-27, LPNs do not have the training or expertise, nor are permitted under their licenses, to make assessments.
23 DEC is an exception. I was informed that all IIRs are reviewed by a qualified professional (physician assistant). 24 “The Patient Protection and Affordable Care Act of 2010, Title V, defines health literacy as the degree to which an individual has the capacity to obtain, communicate, process, and understand basic health information and services to make appropriate health decisions.” See https://www.cdc.gov/healthliteracy/learn/index.html.
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75. The current practice of assigning LPNs to review IIRs is supported by policy. AR115.04, Health Education and Access to Health Services, Section II.B.1 says that “[IIRs] are triaged daily by health professionals per a priority system….” Dr. Deol testified that LPNs are considered health care professionals in NDCS. Deol Dep. 160:7-9.
76. Thus the system in place for review of IIRs, by relying on the expertise of LPNs to make a decision about whether a patient needs to be seen immediately for a given problem or can safely wait a few days, exposes all individuals currently in NDCS to a risk of harm if they try to access care through the NUEC pathway and the request is triaged by an LPN.
77. Third, IIRs describing symptoms or containing requests for care, do not always result in a face-to-face visit. In a safe prison health system, such requests – with few exceptions – should result in a face-to-face visit with a health care professional. Providing only a written response to the IIR is not a replacement for a visit. Entering into a written conversation with the patient, asking further questions or recommending specific treatments – “care by correspondence” – in a population with low health literacy and in a setting where the patient does not enjoy the ability of those of us in the free-world to bypass our physician and go to an ER, generally serves only to delay or avoid having to provide care. Ignoring a request for care, or providing only a written response, is potentially dangerous, as illustrated by the following examples.
• At LCC, Patient 10 submitted an IIR complaining of a sore throat, cough productive of green sputum, shortness of breath, and chest pressure. The following day he received a written response informing him that cough syrup had been ordered and that he should drink fluids. When the patient submitted another IIR three weeks later, reporting that he now had cold chills and sweats, an even more obvious symptom of a possible serious 44

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infection, he again only received a written response, informing him the cough syrup had been re-ordered and to drink plenty of fluid. Such advice, in the absence of an examination, was patently dangerous as the patient may have been suffering from a serious, even life-threatening, conditions, such as pneumonia.
• Named Plaintiff Sabata, at NCCW, submitted an IIR for concern she may have cancer in her kidney. This IIR was ignored: it was not reviewed, it was not responded to, and it did not result in an evaluation.
78. Thus, the system in place for responding to IIRs creates a barrier to care for potentially serious medical needs by failing to actually have patients examined, occasionally substituting no care with “care by correspondence.” Any patient in NDCS who submits an IIR is at risk for such inadequate care.
79. Fourth, when a request for care does result in a visit, there are unacceptably long delays until that visit takes place. In a safe prison health system, patients are seen soon after submitting a request for NUEC. The National Commission on Correctional Health Care has an accreditation standard requiring the visit to occur within two days of the request. In my opinion, a longer time period may, at times, be acceptable provided that: a) patients have unimpeded access to urgent care, i.e. should the patient believe they can no longer wait for a scheduled appointment, they can be seen, reliably quickly, by triggering the urgent care pathway described earlier; and b) if the delay is much more than two days, that a qualified health care professional has determined that the delay is clinically appropriate. Based on interviews with patients and review of documents, there are long delays between when NDCS patients request NUEC and when they are seen by a medical professional (usually a nurse). These delays are not surprising given the lack of guidance provided to staff by NDCS, a deficiency that NDCS is aware of, but
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allows to continue: At his deposition, Dr. Deol acknowledged that NDCS does not have a policy specifying the timeframe within which COs must forward medical IIRs to medical staff, a policy specifying the timeframe for medical staff to triage those IIRs once received, nor a policy specifying the timeframe within which a patient must be seen after triage of the IIR. Deol Dep. 96:25-97:5, 95:20-96:24, 97:6-97:21, respectively. Given that: a) the pathway for accessing urgent care in NDCS is unreliable, and b) IIRs are sometimes reviewed for urgency by unqualified professionals (LPNs), these long delays are also potentially dangerous.
80. During interviews, multiple patients at each of the five facilities I visited reported that it takes a up to four weeks to be seen after submitting an IIR. At one facility, I examined the schedule for upcoming NUEC appointments. At the moment of my examination, the next available slot into which patients were being scheduled was three weeks in the future.
81. The following are examples of delayed responses to NUEC requests were drawn from medical record reviews.
• Named Plaintiff Sweetser submitted an IIR for an eight-day history of feeling his “head rushing” and blurry vision. He was scheduled to see a practitioner 10 days later. Absent more information, these symptoms evoke conditions, some of which are generally emergencies (e.g. malignant hypertension, acute angle glaucoma, meningitis), for which a 10-day delay in treatment would result in serious harm if not death.
• Above I cited the example of Patient 14 at NSP, who submitted an IIR stating that he had diabetes and had cuts in between his toes on both feet for which he needed to be seen as soon as possible, and for which he received only a written response, “You are on no diabetic meds anymore.” It took NDCS staff over a month to provide even this minimal and potentially dangerous response, rendered more dangerous by the delay. Untreated 46

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cuts in patients with diabetes can easily become infected, sometimes resulting in amputations of toes, the foot, or the leg, or even resulting in death.
• Patient 33 is in the isolation unit at NSP. He suffers from a number of serious medical problems including hypertension, diabetes, kidney insufficiency, and anemia. On August 13, 2018, he submitted an IIR stating “Every time I stool its like the blood looks black and smell unreal. My liver and kidney hurt. My head has sores on it.” The IIR was not reviewed (triaged) until August 20. This is an unacceptably long interval, and, in light of the symptoms expressed, dangerous. The IIR was triaged as “Scheduled to [NUEC clinic].” On August 31, a physician saw him for an unrelated IIR. There is no indication in the physician’s note that he was aware of nor addressed the much more serious IIR of August 13. I found no other visits in the next few days related to the August 13 IIR. The patient’s symptoms suggest that he may have had internal hemorrhaging, an acute abdominal infection, or other similarly serious and potentially fatal conditions. Thus, a worrisome constellation of symptoms, made more worrisome by the patient’s history, seems to have gone ignored by medical staff.
82. Thus based on interviews and chart reviews, requests for NUEC may be subject to delays in provision of care, which exposes all individuals in NDCS to a risk of harm.
83. Fifth, even when NDCS medical staff receive a patient request for NUEC and do schedule the patient to be seen, the visit is not always consummated. In a safe prison health system, COs bring or send patients to their scheduled appointments. If a patient no longer feels the need to be seen, he or she still appears in person at the medical unit and so informs a health care professional. An in-person cancellation is necessary for the patients’ safety because it cannot be assumed that a patient’s failure to show for an appointment in a correctional setting is
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volitional. It is possible that: the patient was never informed of the appointment; COs coerced the patient to cancel; other residents coerced the patient to cancel; or the patient has become so ill that he or she is unable to get to the clinic. A nurse scheduler at one facility informed me that if a patient “no shows” to a NUEC appointment, medical staff do not attempt any further follow-up unless the patient’s building pass did not print out or the patient is in an isolation cell. Whatever the reason, some scheduled patient appointments for NUEC at NDCS do not take place, as illustrated by the following examples.
• At NCCW, Named Plaintiff Norris had a seizure during which she lost control of her bowels. An IIR was submitted (“Had a seizure, had a bowel movement. Resting. Would like to see medical.”). The IIR appears to have been written by the CO. The patient did not show for an appointment scheduled the same day. In a note to the medical staff two days later, a CO explained that the patient had missed her appointment because of a failure by custody staff to escort her. The appointment was rescheduled for the fourth day after the seizure. At that time she was seen by an RN who wrote, “I explained she will need to see the [practitioner] for any medication changes.” It is not clear from this note if the nurse put the responsibility back on the patient to request another visit (which would be inappropriate) or the nurse was referring the patient to a practitioner. In either case, as far as I can tell, the patient was not seen by a practitioner for this problem in an timely manner, if at all. This delay in meaningful treatment was dangerous for the patient because it delayed addressing the underlying cause of the seizure to prevent further seizures, any of which puts the patient at risk for serious complications, such as pneumonia and fractured bones.
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• At LCC, Patient 15 submitted an IIR for vomiting blood and having blood in his stool. Two days later, a written response said, “Schedule to SC [Sick Call, the clinic for NUEC].” Loss of blood from vomiting and defecation indicate internal bleeding, which should be considered a life-threatening emergency until proven otherwise. Instead of making immediate arrangements to see the patient upon reading his IIR, the patient was never seen. Two months later the same patient submitted an IIR for a possible urinary infection. He was marked as “no show” on the day of his submission and the next two days, after which staff dropped the issue. Staff did not conduct a face-to-face encounter to assure that the patient was aware of the scheduled visit and had voluntarily chosen to refuse it. Failure to address the latter problem placed the patient at risk of harm from serious infection; failure to address the former problem placed the patient at risk of death.
84. Thus when patients at NDCS are scheduled to be seen for non-urgent episodic conditions, the system in place does not reliably ensure that the patient is actually seen and evaluated. This can have dire consequences, depending on the cause of his or her symptoms.
85. Sixth, the medical professional consummating the visit to address a non-urgent episodic need is often not clinically or legally qualified to do so. In a safe prison health system, clinical visits are conducted by a medical professional with sufficient training and experience to do so. Typically this should be a practitioner, though in some prisons, RNs conduct an initial evaluation, safely providing definitive management for a limited number of common and simple problems, and referring the patient to a practitioner for the rest. Instead of RNs, NDCS often uses LPNs to independently conduct initial evaluations and to provide definitive management for a broad range of non-urgent episodic problems. As explained in more detail elsewhere in Paragraphs 21-27, LPNs do not have the expertise, nor are they permitted under their licenses, to
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provide such care independently. Thus this practice, found throughout NDCS, and to which all patients are exposed, is patently dangerous, as illustrated by the examples below.
• Named Plaintiff Sabata complained of chest pain. She was seen by an LPN who treated the patient using NTP #9 Chest Pain. The patient described the pain as 6/10 in intensity, lasting a minute, and disappearing on its own. The patient’s heart beat was fast (106, normal <100). The LPN managed the visit independently and discharged the patient to her living unit, failing to address the rapid heartbeat or establishing a cause of the chest pain. The LPN failed to evaluate the patient for an abnormality of the covering of the lungs (pleuritis), which could cause such a pain. The LPN did refer the patient’s chart to a practitioner for review, however, there is no evidence that referral ever materialized. The LPN’s independent evaluation exposed the patient to risk of harm from an undiagnosed and untreated condition.
• Patient 11 at DEC developed nausea and weakness. An LPN, operating independently, treated him using NTP #49 Vomiting and Nausea. His blood pressure was 106/75 (while this is technically within the “normal” range, it was an abnormally low blood pressure for this patient who suffered from hypertension). Given the patient’s history of diabetes with high blood sugars in the past, his history of nausea and weakness, and his relatively low blood pressure, it was important to evaluate the patient for acutely high blood sugar, infection, and dehydration (blood sugar test, orthostatic blood pressures, etc.), which are serious conditions and require immediate treatment. Instead, the LPN provided no immediate definitive care, simply referring the patient to the next regularly scheduled clinic.
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• Patient 26 at TSCI was suffering from a rash which he believed might be caused by one of his medications (Levemir®). Thus when offered the medication by an LPN, he refused it to see if the rash would disappear. Despite this, the LPN, operating independently, advised him to take the Levemir. This advice was dangerous: if patient might be allergic to a medication, the proper action is to hold administration of the medication and contact a practitioner for further orders.
86. In summary, based on patient interviews, staff interviews, and chart review, most of the steps for providing access to NUEC are dysfunctional in NDCS. Given that any NDCS resident could develop an non-urgent medical need at any time my review indicates that the system in place for patients to access timely safe non-urgent episodic care places all residents in NDCS at risk of serious harm.
4. Chronic Care 87. Regular, non-episodic care is frequently referred to as “chronic care.” The goals of this care are to manage a condition and prevent future complications from the condition. The “condition” is often a chronic, long-term disease, such as hypertension or asthma. But for the purposes of this discussion, it might also be other matters, such as a newly discovered problem which needs to be worked up, an episodic problem which now requires follow-up, or health maintenance such as periodic screening for breast or cervical cancer. This section addresses care which is distinguished from outpatient care described in other sections in that the condition requiring care is not episodic. Rather, medical staff are already aware of the condition. The “driver” of care shifts, then, from the patient (where the system is designed to be reactive to a patient request), to the medical staff (where the system is designed to be proactive, anticipating
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needs, and scheduling future appointments in the absence of a request, based on the status of the condition).
88. Based on interviews and review of documents, I find many gaps in the provision of chronic and other scheduled care in NDCS. The gaps I identified—including (a) failure to see patients at appropriate intervals; (b) failure to follow through after patients are seen by outside specialists; and (c) discoordinated and poor care—are indicative of a broken chronic care system. For example, chronic care patients should generally be seen on a regular, periodic basis. The purpose of such regular, pre-planned visits is to assess the current status of the disease by history, examination, and, sometimes testing, providing patient education to help the patient self-manage and cope with his disease, and implement preventive health measures to reduce the chances of progression of, or complications from, the disease. NDCS has difficulty, at times, accomplishing this most basic task of seeing patients. Because many NDCS residents have conditions requiring chronic care, and others could develop and issue requiring chronic care at any time, the chronic care system impacts all patients at NDCS. I provide a series of examples of cases, using each to present one or more of the three systematic gaps in care.
• Patient 4 at LCC has a chronic disease, asthma, for which he is followed in chronic care clinic (“CCC”). For a chronic disease, such as asthma, he should be followed on a regular basis. The last time this patient had a CCC visit for his asthma was October 2017. There are no evidence-based generally accepted intervals for scheduling CCC visits for patients with asthma; the interval should be tailored to the individual patient based on the severity of his or her disease. The U.S. National Institutes of Health recommends 1- to 6-month intervals for the most stable patients, and NDCS’s own guidelines set the maximum at 12 months (Medical Protocol 16 Chronic Care Clinics). Despite this, as of my tour in 52

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November 2018, more than a year later, Patient 4 had not had another CCC visit. Further, his disease was not well-controlled enough to justify such a long stretch between visits. In July of 2018 he suffered an asthma attack so severe as to require a cortisone injection. Yet even after this indication that his disease was not well-controlled, no follow-up care in CCC was scheduled for him. Asthma attacks can be severe enough to require hospitalization and can lead to death. Thus, this patient’s chronic care need was poorly handled and put his health at risk. Gaps in care: (a) Failure to see patients at appropriate intervals; (c) Discoordinated and poor care.
• Patient 27 at TSCI suffers from a chronic inflammatory disease of the bowel (Crohn’s Disease). The disease is severe enough that NDCS sought the assistance of an outside specialist to assist with chronic disease management. On December 8, 2017, the patient had a chronic care visit with this specialist. Based on the results of a biopsy of the patient’s intestines, the specialist determined that the patient’s current medication had failed, and recommended switching the patient to a different medication. On December 26, 2017, an NDCS practitioner initialed the specialist’s report, indicating acknowledgment of the need to change the medications. However, no change was made. When the patient returned to the specialist on March 3, 2018, the specialist noted that the new medication had not been started as recommended. On March 29, 2018, almost 4 months after it was recommended, the patient finally received his first dose of the new medication. Crohn’s disease is a serious condition which, in severe cases can cause pain, bleeding, and obstruction of the bowel, among other effects. Failure to provide timely treatment for his disease placed him at increased risk of these complications. Gaps in
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care: (b) Failure to follow through after patients are seen by outside specialists; (c) Discoordinated and poor care
• Patient 38 at NCCW underwent a routine scheduled screening mammogram on 10/25/17. It showed new shadows (calcifications) in the right breast. This is an abnormal and concerning result. The radiologist therefore recommended additional x-rays (I found this report misfiled in the patient’s medical record). No action was taken on this report and recommendation until May 1, 2018, more than 5 months later when, for some reason I could not discern, the 2017 report came to light. Ultimately the patient was diagnosed with breast cancer (intermediate grade ductal carcinoma) and is currently receiving cancer treatment. Breast cancer can be a fatal disease depending on the nature of the cancer and how swiftly it is treated. I do not know the degree to which the marked delay in addressing this patient’s initial mammogram affected her prognosis. However, it certainly increased her risk of a poor prognosis. Gap in care: (b) Failure to follow through after patients are seen by outside specialists.
• Named Plaintiff Sweetser suffers from chronic ailments, including hepatitis C. In mid2016 he began experiencing problems with his joints. For example, in June, he developed difficulty walking and was found to have fluid in both knees. He then developed pain and limited movement in his left shoulder. Through 2016 and early 2017 he continued to have these and other symptoms. In March of 2017, he asked the physician for treatment for his hepatitis C; in some cases, Hepatitis C can cause the symptoms the patient was experiencing. On March 3, the physician wrote to the patient that he was going to refer the patient’s case to NDCS’s Hepatitis C Committee. I could find no record of such referral taking place. On March 22 another practitioner met with the patient for continued 54

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joint pain. The practitioner wrote that she was awaiting the results of a test (“Fibrosure”) to determine whether the joint pain was due to Hepatitis C. In fact, the test had been completed a week earlier and would have been available to her. More importantly, the test was irrelevant, and so depending on its results to manage the patient’s chronic problem was erroneous. The Fibrosure test only indicates the amount of Hepatitis C damage to the patient’s liver; it does not shed any light on the question at hand: was the joint pain the result of Hepatitis C? Finally, at the end of the visit, the practitioner ordered prednisone to manage the patient’s chronic pain, but the order was never implemented. As of July, 2017, the patient had still not received treatment for his Hepatitis C or other resolution of his joint problems. This small slice from the chronic management of the patient’s joint problems is just one example that reflects discoordinated and poor care. Gap in care: (c) Discoordinated and poor care.
• Named Plaintiff Sabata underwent a routine scheduled screening Pap smear. The abnormal result, reported back a week later, showed cells suspicious for a high-grade lesion (i.e. risk of cancer). This result was not reviewed until almost 2 months later, which is an unreasonably long delay for an abnormal result. The patient did not actually see a specialist for this and have a colposcopy performed until a quarter of a year later, which is also an unreasonably long delay for an abnormal result. When she finally underwent the colposcopy, a pre-cancerous lesion was found and treated. As with many cancers, the sooner the pre-cancer (or cancer) is treated, the greater the chance that the cancer will be avoided or cured. Gap in care: (b) Failure to follow-through after patients are seen by outside specialists.
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89. In summary, based on interviews and review of documents, there are significant problems with the delivery of chronic and other scheduled care in NDCS. Just under one quarter of all individuals incarcerated in NDCS are labelled as having chronic disease. Almost all females in NDCS are in need of periodic scheduled screening services for breast and pelvic health. And any incarcerated individual could develop a new problem requiring effective workup, follow-up and comprehensive management over time. Thus the care delivery problems described here place all individuals incarcerated in NDCS at risk of serious harm in at least one way, and some in multiple ways.
5. Access to Care in Isolation Cells 90. Isolation units (also known by a variety of other names, including solitary confinement, restrictive housing, control units, etc.) are units where individuals’ activities and access to many prison services and programs are restricted. In a safe prison, placement in such units should not decrease access to, nor the quality of, medical care. Patients should have unimpeded access to care via the emergency, urgent, and non-urgent episodic pathways. They should continue to receive monitoring, medications, and other treatments as they would if they were in any other living unit of the prison. Implicit in this statement is that when clinically indicated, a patient in isolation must be moved to a proper examination room for evaluation as would any other patient. It is unacceptable under the standard of care to attempt to conduct the evaluation across a locked cell door. 91. In addition to unimpeded access to care, because of the unique nature of these units, these units must provide at least two special services. First, they must provide preisolation-placement evaluations. Isolation units are typically the destination of individuals involved in altercations or uses of force by custody staff. These individuals require careful health
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evaluations (“post-use of force evaluations”) prior to placement in isolation to assure that a) they did not suffer injuries which require medical attention, and b) that the behavior which led to the altercation or use of force was just volitional misbehavior and not the result of a change in mental status, something which would require medical intervention. Second, because placement in such units can, by itself, increase risk of harm to mental and physical health, it is the standard of care in prisons that both medical and mental health staff must conduct “welfare checks” on all individuals placed here. The primary risk is from deterioration in mental health, however the goal of a welfare check conducted by medical staff includes looking for deteriorations in physical health because a) mental illness can result in physical illness, for example, dehydration as a result of not drinking enough fluids, and b) impaired access to health care may result in serious progression of physical illness. The welfare checks conducted by medical staff are therefore distinct from, much simpler than, and conducted much more frequently than the checks that are supposed to be conducted by mental health staff. A medical welfare check should generally be conducted daily to ensure that the health of residents in isolation cells is not deteriorating or to detect early evidence of deterioration so that it can be addressed and reversed before it results in severe harm or death. It is quite easy to conduct a medical welfare check. A medical staff member asks the resident if he or she is okay and if he or she has any health needs, all the while making sure that resident’s appearance and oral responses do not raise any concerns. If the staff member has any concerns, arrangements are made for the patient to receive a more thorough evaluation. Typically a medical welfare check can be completed in a few moments.
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92. There are serious deficiencies in access to safe care, post-use-of-force/preisolation-placement evaluations, and welfare checks in the isolation units of NDCS,25 which places patients in isolation at a substantial risk of serious harm.
93. The following are examples of problems in which impeded access to care due to Isolation placed the patient at significant risk of harm.
• Patient 33 was in the isolation unit at NSP at the time of my tour. He was seen by a nurse during rounds in the isolation unit on September 27, 2018. The nurse entered the following note in the patient’s medical record: “Patient seen on seg rounds. Complaining allergy shot not working. Rash sores on legs. Advised to order Benadryl from canteen.” This is a wholly incomplete and inadequate evaluation of a potentially serious complaint that fell well below the standard of care. A “rash” and “sores” on a patient’s legs can be indicative of a broad range of conditions, including serious conditions requiring urgent treatment. This patient required a medical professional to obtain an adequate history and conduct an examination, including, for example, measurement of his temperature and other vital signs. In the absence of a competent history taking and examination, it would be difficult to arrive at a diagnosis (which was required in order to prescribe the treatment).
• I visited Patient 36 in the isolation unit at NSP on November 8. He informed me that he had submitted an IIR for vomiting about a month earlier. I was unable to find this IIR in his medical record. However, I found an IIR from October 29 stating, “I wanna know if I’m scheduled for sick call.” Rather than triaging the patient to a visit, the reviewer
25 DEC does not have an isolation unit. Individuals are sent to LCC.
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entered into a dialogue, “I do not see that you are scheduled for [NUEC clinic]. What do you need to be seen for?” On November 1 he was finally “seen” by a physician who wrote, “Seen through hatch @ [isolation unit].” The “visit” was devoid of any examination, including even obtaining of basic vital signs, which is markedly below the standard of care and potentially dangerous.
Post-use-of-force/pre-isolation-placement evaluations are deficient at NDCS, on their face, due to existing policy. AR 116.02 Use of Force, Section VIII.G.2, requires “medical staff” to conduct an evaluation following a use of force. AR 115.05 Health Screenings, Section VI requires “health services staff” to conduct an evaluation prior to placement in isolation. I infer from my interview with staff at all five facilities as well as the deposition by Dr. Deol, that “medical staff” and “health services staff” include LPNs. As explained in more detail elsewhere in Paragraphs 21-27, LPNs do not have the expertise, nor are permitted under their licenses to exercise the clinical assessments and create the nurse care plans required for these two tasks. The inadequacy of the two types of evaluations are illustrated in the following examples.
• Named Plaintiff Sabata was the subject of a use-of-force. Her post use-of-force evaluation suffered from two deficiencies. First, by policy and standard of care, she should have had the evaluation immediately. Instead, it was not conducted until the following day, more than 14 hours after the incident. Second, it was conducted by an LPN, operating independently.
• Patient 44 at LCC was involved in a fight. He has a history of hypertension, diabetes, and sleep apnea. He was evaluated after the fight by an LPN. The nurse documented that he had multiple small lacerations and abrasions and documented that his neurological checks 59

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were normal (“Neuro checks wnl”). The LPN managed the patient’s care, independently, using NTP #32 Lacerations. The fact that the nurse chose to conduct neurological checks of some kind is a strong indication that the patient was subject to head trauma, in which case he required further evaluation to evaluate for possible concussion or other brain injury which would include, at a minimum, questioning about loss of consciousness, and which, if suspected, would require further care to keep the patient safe. The nurse did not conduct such questioning. The nurse’s documentation of “Neuro checks wnl” is meaningless and therefore useless. The patient was thus subject to poor and potentially dangerous care.
94. Based on interviews with multiple residents, I conclude that welfare checks in NDCS isolation units fail to assure the safe health of individuals confined to isolation cells. Some residents informed me that at times nurses do not even attempt to do the checks. For example, a resident of the isolation unit at NSP informed me that there had not been any welfare check in the past week since he had been placed there. Others informed me that when nurses do conduct checks, is it not uncommon for them to simply walk through the unit yelling “Medical!” with the expectation that residents will respond if they have a need.
95. In summary, based on interviews and review of documents, three health-related elements of care related to placement of individuals in isolation units, access to care, evaluation prior to placement, and welfare checks, are unsafe at NDCS. All individuals incarcerated in NDCS are at risk for placement in isolation at any point. Thus all individuals are at risk for substantial harm to their health as a result of at least some of these deficient processes.26
26 Due to low census, I was unable to examine the performance of welfare checks at NCCW.
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6. Access to Interpreter Services 96. In a safe prison health care system, when incarcerated individuals who cannot communicate in English require health care, communication must take place in a language the individual understands. Further, that communication must be performed accurately and confidentially. The need for accurate interpretation is obvious. Accurate interpretation would exclude, for example, interpretation/translation software. The need for confidential communication is explained above in Paragraph 73. Confidential interpretation would exclude the use of COs or other inmates (except in emergencies). 97. Based on my interviews, NDCS medical staff do not consistently provide accurate and confidential interpretation for residents who cannot communicate in English. For example, several Hispanic patients at DEC informed me that nurses sometimes use pantomime to communicate with non-Anglophones. At other facilities, nurses use COs in non-emergencies. 98. The effect of NDCS’s practice of inaccurate and non-confidential interpretation would affect any patient who were unable to communicate in English and, for the reasons cited here and elsewhere in the report, could place the patient at risk of harm.
E. Medication Administration 99. Medications are foundational to the treatment of diseases. In most prisons, some medications are self-administered and the rest are nurse-administered27 (“pill line”). The latter delivery system is more complicated and therefore prone to more errors. Based on my observations of the NDCS system, I focus this discussion on those instances where a patient does
27 It might be more correct to call this staff-administered medication, because in some systems medications may be administered by a medical technician, EMT, nursing assistant, other allowable health care professional, or in some systems – as is the case in NDCS – by COs.
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not receive one or more doses of a nurse-administered medication (“missed medications”). They are usually missed because of a patient “refusal,” though the reason is not always certain.
100. In a safe prison health care system, nurse-administered medications are given at every dosing time ordered.28 If the patient does not show up at the pill line, the nurse, working collaboratively with custody staff, either has the patient brought to the pill line or the clinic, or, if necessary, goes to the patient him or herself to either assure that the patient receives the medication or to address the patient’s refusal to take it. The nurse must make in-person contact for the same reasons nurses must make in-person contact when a patient does not show up for an NUEC appointment. The nurse cannot assume that a “refusal” is in fact volitional, as discussed previously. It is possible that: the patient was not aware pill line was taking place; COs coerced the patient to not appear at pill line; other residents coerced the patient to not appear; the patient has become so ill that he or she is unable to get to the pill line. See Paragraph 83.
101. If the patient refuses a medication (either at the pill line or after being tracked down), the nurse must take certain steps. Generally, the nurse should first try to determine the patient’s reason for refusing and then take appropriate steps. For example, if the patient informed the nurse that at a visit earlier that day the doctor told the patient to stop taking the medication, the nurse would withhold the medication and recheck the patient’s medical record. If the patient had questions or concerns about the medication, the nurse might provide education and encourage the patient to take the medication. The nurse’s response to a refused medication must also take into account the nature of the medication. For some medications, such as insulin or antibiotics, missing just one or two doses can be dangerous, and immediate intervention is
28 This discussion focuses on medications which are ordered on a regular basis as opposed to those which are ordered to only taken when the patient feels they need it (“PRN”).
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necessary. For other medications, a higher threshold of missed doses is acceptable. For some medications, such as seizure medications, intermittently missed doses can be as dangerous as consecutively missed doses. Generally, when intervention for missed medication is necessary, if the nurse cannot successfully solve the problem him- or herself, the nurse would consult with a practitioner. The practitioner’s options generally include meeting with the patient and either convincing the patient to continue the medication, finding an alternative medication, or executing an informed refusal.
102. Given the knowledge and judgments (assessments) required for a nurse dealing with a refusal, the above discussion assumes that the nurse is an RN. When medications are administered by someone with lesser training and licensure (e.g. LPN, medication technician, CO, etc.), these individuals are unable to – and should not be allowed to – make these judgments independently. Thus in safe health care systems where non-RNs administer medications, there must be (a) very simple and clear guidelines (e.g. policies/procedures) for the person administering the medication informing him or her on how to deal with medication refusals, (b) those guidelines need to be clinically safe (e.g. set the proper threshold for the number of refusals for a given medication that triggers some action), (c) the guidelines must be followed by staff regardless of who administers the medication, and (d) all care must be accurately documented in the patient’s medical record. The “workhorse” of this documentation is the Medication Administration Record (MAR), a month-specific form on which medication administrators initial administration of each dose or the reason for non-administration.
103. Failure to deal appropriately with medication refusals presents an obvious risk to patient safety. Many, if not most, medications administered in the prison setting are meant to treat serious medical conditions. When patients don’t receive these medications as prescribed,
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the condition for which the medication was prescribed can get worse. Patient harm can range from untreated pain to death and many other serious outcomes in between, such as fractures and lacerations from uncontrolled seizures, heart attacks from uncontrolled blood pressure, and respiratory failure from uncontrolled asthma.
104. Administration of medications at pill line in NDCS suffers from widespread lack of adherence to the principles of safe medication administration described above. Among all those involved in medication provision, from COs to nurses to prescribers, to administrators, there is wide variation, uncertainty, and misunderstanding of the correct process and the role of other actors, all facilitated by an unclear policy. In addition to this global problem that permeates all facilities, there are three significant local deviations from other safe practices: long outdoor pill lines at NCCW; distant outdoor pill lines at TSCI; and pre-pouring of medications at TSCI. While present only at three facilities by my observations to date, they are preventable by, and therefore attributable to, a lack of policies prohibiting these operations. Further, any prisoner who may be transferred to these facilities is at risk of harm from these practices.
105. The global problems with medication administration in NDCS can be viewed by examining three actors: nursing staff (nurses and nursing supervisors), COs, and prescribers (i.e. practitioners).
106. The confusion that exists among NDCS nursing staff regarding missed medications is well illustrated by information I was told during interviews of staff at DEC. When I asked LPNs how they are supposed to handle multiple missed medications, I received multiple responses:
-We fill out a refusal form and the practitioner keeps track of it and talks to people if they think there are too many;
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-We notify someone after 3 consecutive misses; -We notify after 3 misses in a 14 day period; -If we’re concerned we make a copy of the MAR [Medication Administration Record] and send it to the practitioner; -If it’s an antibiotic or insulin, we might notify someone sooner; 107. When I asked the nursing supervisor how they handle multiple missed medications, she said: -If patients don’t want their medication for more than 7 days they send the information to the practitioner. -LPNs use their judgement, so the 7 day threshold might be shorter for some medications. 108. When I asked the nursing supervisor under what circumstances a patient might miss a medication and be marked as a “no show,” she said that might happen if the patient was out to court. When I asked how the staff knows when the patient returns from court so that they can administer the medication, she said that is a problem, acknowledging that staff are not always given this information and are not always able to provide the missed medication. 109. At other facilities, different actors also provided vague answers, answers that were different from other respondents, or sometimes had no answer. Among the reasons that these responses paint a picture of a dangerous system is the reliance on LPNs to use their judgment about when to alert prescribers to missed medications. Such judgments require such knowledge as why the medication is being used in a particular patient and how the medication
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work and is metabolized. As explained in more detail elsewhere in Paragraphs 21-27, LPNs do not have the expertise, nor are they permitted under their licenses to exercise such judgments.
110. In NDCS (except TSCI where medical staff administer all medications), many medications are administered by COs.29 Most COs I interviewed did not view it as their responsibility to address missed medications. It is their understanding that medical staff review the MARs on a regular basis and take appropriate action. When interviewed, medical staff had varying reports of whether, how often, and how such review takes place. Thus the use of COs to administer medications presents a risk to patient safety due to the resultant poor handling of medication refusals. The use of COs to administer medications presents a second, unrelated risk to patient safety that flows from the a fortiori breach of confidentiality that occurs when COs become aware of the medications patients are prescribed, and therefore the diagnoses from which they suffer. An explanation of why that risk exists appears in Paragraph 73. Given the fact that NDCS facilities are staffed with nurses 24/7, I could discern no operational reason why COs need to be tasked with an activity that nurses should be performing.
111. Finally, staff interviews revealed troubling information about the role of practitioners. Practitioners at NDCS have a low threshold for discontinuing medications if patients miss medications. It appears that often medications are discontinued without any discussion with the patient to confirm that the medications were missed, to confirm that the misses were refusals, and to do due diligence to understand the reasons, attempt to find
29 Only COs who have received training and received certification a Medication Aides administer medications. While CO medication administration is within the standard of care, it is a sub-optimal arrangement because of the inherent breach of confidentiality as well as the inherent role (and ethics role) conflict: the ethical obligations of a health care professional and a correctional professional are different.
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alternatives, and execute a valid and safe informed refusal. In fact some practitioners reportedly will stop all medications if a patient misses too many doses of a single medication.
112. The following are illustrations of impacts of the medication administration system on NDCS patients.
• Named Plaintiff Sabata receives medications to treat HIV infection. I found multiple instances where medications were not administered (either because they were refused or without explanation) but there was no contact of an RN or practitioner. For example, staff failed to administer both of her HIV medications on 7 different days over a 3 month period at a time when her HIV specialist noted that her HIV required better control by better medication adherence. Thus failing to administer medications increased the chance of the patient’s disease getting worse, including developing resistance to the medications.
• Patient 30 at LCC receives medications for seizures. He apparently refused a dose. A practitioner reviewed his case and issued an order that the patient’s medication compliance should be monitored closely. About 2 weeks later, a staff member sent the practitioner a copy of the patient’s medication administration record showing that the patient had consistently missed his evening dose of the medication for 13 days straight. Not only had the practitioner’s order for close monitoring been ignored, even in the absence of the specific order, he should have been notified of the situation much sooner. Missing this many doses of the medication greatly increased the chance that the patient would suffer a seizure.
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• Patient 1 at TSCI is also on medications for seizures. He missed multiple medications for two days. There is no evidence of staff taking any action. On the third day the patient suffered multiple seizures requiring evacuation to the ER.
• Patient 47 is at TSCI. On November 2, 2017, a practitioner summarily discontinued the patient’s insulin and morning blood sugar tests for non-compliance. This is a highly dangerous step to take with a patient and should only be undertaken after careful and repeated counseling and searches for alternatives. Instead, I could find no evidence of informed refusal or even an earlier discussion with the patient as far back as at least August 31, 2017 when the physician had last renewed the patient’s insulin.
113. The confusion and inconsistencies in management of missed medications is facilitated, in part, by unclear policy. AR115.10 Pharmacy, section II.F is in direct conflict with Medical Protocol 48 (NDCS 078818) with regard to stopping a medication for non-compliance. The Protocol says “An encounter with the patient to discontinue treatment will be scheduled if needed” but the Policy says “All physicians, psychiatrists and prescribing mid-level practitioners will meet with the patient prior to a consideration of medication discontinuation for noncompliance and for abuse.”
114. Aside from the global problems described above, there are three local deviations from safe medication administration practices. NCCW operates an outdoor pill line that is too long. Exposure to the cold is an adverse condition for all patients, but especially for those who may be frail or suffering an infection. Exposure to heat is an adverse condition for patients on psychotropic medications. Certain psychotropic medications blunt the body’s ability to regulate temperature. When exposed to direct sunlight in elevated temperatures they are at risk for becoming overheated (including heat stroke, which can be fatal). The pill line at NCCW is
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conducted outdoors.30 On the night that I visited NCCW, at approximately 45 minutes after pill line had begun, I observed more than 20 patients still waiting on line outside. At the time the temperature was 44 degrees F. TSCI also operates an outdoor pill line, placed more than a tenth of a mile from some living units. While this line is kept short by sequencing housing units, even the short line can constitute an unsafe exposure to the elements for a patient suffering from an infection, who should remain indoors, resting and staying warm.
115. At TSCI, medications are pre-poured. “Pre-pouring” means nurses remove the medication from the patient-specific labelled container and place it in a temporary container (usually a paper cup) at some point in time prior to pill line. The term “pouring” is used even though most medications are in pill form. The nurse places a slip of paper in the cup with the patient’s name. If the patient is on more than one medication, they are mixed together in the cup. Pre-pouring is acceptable practice in some limited circumstances, none of which apply at TSCI. When nurses administer medications, they must verify that the right patient is getting the right medication at the right dose, at the right time, by the right route (the “Five Rights” of medication administration). When one nurse pre-pours the medication, and a different nurse administers it, as is the case at TSCI, the signing nurse cannot possibly attest to all of the “rights” and thus his or her signature is a falsification; this latter nurse is forced to assume that the former (undocumented) nurse made no errors. This violates safe medication practice and truthful documentation practice.
116. In summary, based on interviews, observations of operations, and review of documents, certain global medication practices in NDCS are not safe. These unsafe practices
30 The patient actually receiving her medications is under a shelter, but all others are directly exposed to the elements.
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place any patient at a substantial risk of serious harm. There are also additional unsafe medication practices limited in location to two prisons. The unsafe environmental exposures at NCCW could potentially affect any woman incarcerated in NDCS. The unsafe pre-pouring practice at TSCI could potentially affect any medium or maximum custody male incarcerated at NDCS because he could be transferred to TSCI during his incarceration.
F. Record Keeping 117. Organized, accurate, complete, and legible medical records are absolutely necessary to provide safe health care. They provide the most essential tool by which health care providers communicate with each other about the patient’s health status and needs. Based on my review of dozens of medical records of patients at NDCS facilities, I found that the NDCS medical records are not adequate to provide safe care for all patients, because they are disorganized, inaccurate, incomplete, and illegible. 118. While there is an NDCS policy, AR 115.03, governing the medical record that requires it to be “comprehensive,” “chronological,” “complete,” and organized in a “uniform manner,” the policy is not followed. 119. Many records I reviewed were disorganized. One record at an institution might be organized according to one organizational scheme, whereas another record might be organized differently. Even within a single record, documents were not always organized in a consistent way. Documents were often out of chronological order. 120. Many documents were inaccurate. For example, every medical record is supposed to have a problem list which highlights, at a glance, all the patient’s significant conditions and history. With the exception of the medical records at TSCI, many problem lists were incomplete and thus inaccurate (and sometimes also misfiled or missing).
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121. Many documents were incomplete. For example times, dates, and professional credentials were often missing from progress notes. Documents, such as hospital reports or MARs were missing. The “Non-Emergency” forms submitted by COs requesting care on behalf of patients via the urgent care pathway, are, by design, not filed at all in the patient’s medical records. These documents contain key patient information explaining the background of new complaints and therefore should be part of the record.
122. Many documents were illegible. For example, many MARs were 3-hole punched to place them in the record. However, one of the punches frequently eliminates the date (month) of the MAR. Progress notes are often hard to read. One practitioner at DEC attempts to solve the problem of illegible handwriting by dictating his notes. This would be good except that he uses Dragon software and fails to confirm the results. As a result, portions of his notes are gibberish, as in the following two passages from the medical record of Patient 12: “Currently there is an achiness the patient made a lower have true seizures but may have nonepiloeptic seure-like behavior.” “To be noted that a nurology consultation whe he was heart rate in 2015 neruologist felt that the seizure-like bevrious was not epileptic in nature.”
123. In summary, medical records in NDCS are insufficient to support safe patient care for all patients.
G. Management 1. Quality Monitoring and System Improvement
124. No health care operation is perfect. Any health care operation can have weakness and can experience errors as a result of those weaknesses. However, a safe health care operation is one that has robust systems for detecting weaknesses and patching those weaknesses before an error occurs, and robust systems for addressing errors that do manage to occur, to discover their
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root causes, and fixing the root causes in a permanent manner. Three key activities practiced by safe health care operations to achieve these goals, are: (a) identifying meaningful performance indicators – in sufficient number – to monitor the quality of care delivery; (b) measuring these indicators and measuring them properly; and (c) properly responding to system errors discovered as a result of measuring these indicators and other monitoring activities. Based on my interviews and review of documents, systemic deficiencies in all three of these activities threaten patient safety in NDCS. Meaningful performance indicators measure key aspects of the health care operation in a way that informs any needed change. The following are some examples of meaningful performance indicators that a correctional health care system might implement:
• The facility maintains the required number of trained and qualified nurses, as stated in the staffing plan, to assure delivery of care consistent with the standard of care. If performance on this indicator falls below the required level, it informs the necessary change: more staff need to be hired immediately.
• After submitting an IIR indicating a need for health care, residents are evaluated in person by a qualified medical professional within 24 hours. If performance on this indicator falls below the required level, it informs the necessary change: IIRs need to be processed more rapidly.
• When a nurse evaluates a patient with an urgent complaint, the nurse delivers care consistent with the standard of care. If performance on this indicator falls below the required level, it informs the necessary changes: nurses need better training and/or supervision.
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125. NDCS does not identify a sufficient number of meaningful performance indicators to adequately monitor the safety of patient care delivery. NDCS’s medical monitoring program is guided in part by AR 101.04 Performance-Based Measures and Key Indicators. This policy lists 21 performance-based required measures related to medical care. Of these 21 “measures,” none actually measure data which can meaningfully inform managers about the quality of care delivered. Instead, they are all simple counts. For example, the first measure is a crude count of the number of “Encounters with Health Care professionals.” Counting the number of encounters in a period of time does nothing to inform managers whether those encounters were done in a timely or minimally competent manner. This policy also identifies a subset of performance measures as “Key Indicators” which are intended to “help NDCS define and evaluate how successful it is in making progress toward long-term organizational goals.” Of NDCS’s 28 Key Indicators, only 4 are related to medical care. Of these 4, 2 (the number of residents diagnosed with a certain type of staphylococcal infection; the number of medical deaths) are duplicates of the aforementioned performance-based measures, and, as previously cited, only serve to provide counts of events. Thus there remain only 2 Key Indicators in the entire policy which do provide some indication of undesirable medical events (number of highrisk events or adverse outcomes; number of health care grievances found in favor of resident). But even these two measures are flawed in that they are raw counts of events, unadjusted by fluctuations in total population, rendering meaningless any observed change in the count from month to month.
126. NDCS’s medical monitoring program is also guided by Medical Protocol 36 CQI [continuous quality improvement] Audit Plan. According to this policy, NDCS staff are required to conduct 5 audits of medical health care delivery: how well nurses deliver care when using
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each of 4 NTPs (NTP #1 Abdominal Pain, NTP #4 Asthma, NTP #9 Chest Pain, and NTP #44 Shortness of Breath) during episodic care; and whether MARs are complete. These 5 audits measure only a narrow slice of all the medical care delivered at the facilities. And even these meager 5 audits are incomplete. For example, the audit of use of the Abdominal Pain NTP measures 12 parameters of a patient encounter. Of the 12, 11 are limited to measuring the process of care (i.e. whether nurses did or did not do something required by the protocol), not the quality of care (whether the nurses did things correctly). For example, one audit question is: “Was patient physical assessment completed?” However, the audit ignores whether the physical assessment was sufficient, given the patient’s symptoms.
127. In his deposition testimony, Dr. Deol states that these are the only medical audits that NDCS conducts. In his deposition testimony on page 123, Dr. Deol provides an example of just one of the hundreds of other possible important aspects of care that his department is not currently measuring: When asked how many patients receive their previous medications without hiatus when admitted to NDCS, he replied that he thinks that 90% do, but that NDCS does not conduct an audit of this, so 90% is, at best, an estimate, based on some talking to people and other vague inputs. Deol Dep. 124:5-125:11.
128. AR 115.01 Health Authority and Administration sets an expectation for additional audits restricted to care delivered by practitioners (“internal review for all health care practitioners”), but with the exception of “review of prescribing practices,” they are vague or are not relevant to practitioners. For example, one audit requires review of the practitioners’ “administration of medication” practices. But practitioners do not administer medications. So an audit of how well practitioners administer medications is meaningless.
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129. Thus the quantity of meaningful performance indicators NDCS has identified in policy is grossly insufficient to monitor the quality of medical care delivery in a complex medical care operation.
130. Even where NDCS has identified performance indicators that should be measured, it often fails to measure the indicators correctly or measure them at all. According to the aforementioned Medical Protocol 36, NDCS staff are supposed to conduct an audit of the nurses’ use of NTP #1 Abdominal Pain annually at each facility. However, according to documents produced by Defendants to date, there is no evidence this audit was conducted in 2013, 2014, 2015 or 2016 at several NDCS facilities. Even when audits are conducted, they often involve so few patients as to be meaningless. For example, for the two annual audits (2017 and 2018) of NTP #4 Asthma conducted at DEC, auditors examined a combined total of two patients’ charts!31
131. According to the aforementioned AR 115.01 Health Authority and Administration, NDCS is supposed to conduct “internal review for all health care practitioners.” However, in his deposition testimony Dr. Deol stated that NDCS does not currently do some of the review required by policy, specifically bullet 2: “Collecting, trending, and analyzing of data combined with planning, intervening, and reassessing.” Deol Dep. 187:25-188:13. The deficiency, though, likely extends beyond this single bulleted element. For example, the third bullet requires NDCS to “Evaluat[e] defined data which will result in more effective access, improved quality of care, and better utilization of resources.” If, as Dr. Deol stated, NDCS is not
31 There are no specific minima for the number of charts that need to be reviewed for such an audit, but it would be unusual, for a population of this size, to find a prison-based audit with fewer than 20 to 40 charts reviewed over a two year period. Clearly a sample size of two is wholly inadequate.
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4:17-cv-03107-RFR-MDN Doc # 249-58 Filed: 02/19/19 Page 76 of 82 - Page ID # 11519 collecting and analyzing data (Bullet 2), it is difficult to imagine how it can be evaluating that data (Bullet 3). 132. The monitoring of the use of NTP #4 Asthma at TSCI for 2018 is particularly troubling; see the figure below.
133. For the annual audit of 2018, NDCS auditors reviewed the charts of zero patients at TSCI to measure performance on this NTP (upper arrow). Yet despite the absence of any audit data, the auditors concluded that the current practice was acceptable (lower arrow). Thus even for the performance measures that NDCS has identified as necessary to monitor, it often fails to monitor them correctly or at all.
134. Finally it is important to properly respond to system errors discovered as a result of measuring performance indicators so that the underlying system weakness can be fixed. This often does not happen at NDCS. For example, auditors measured performance on NTP #9 Chest Pain on 10 separate occasion during 2017 and early 2018. On each occasion they measured
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12 mandated activities. The results were dismal. For example, they found 0% compliance on 16 of the 120 individual measures and between 1% and 50% compliance on another 30 measures. Despite these results, indicating that the care of patients with chest pain at TSCI is very poor and places patients at significant risk of harm, I was unable to find any analysis of the reason for these errors or any appropriate plan for remediation via a corrective action plan.
135. One of the most important, if not the most important, tools for so discovering the reason for errors is conducting a Root Cause Analysis of the error. In the absence of understanding and correcting the root cause of an error, patient safety science tells us that the error is likely to recur. Based on my interview of a facility health care manager, and review of CQI documents, NCDS does not conduct root cause analyses.
136. Finally, even when NDCS does develop corrective action plans they are not only uniformed by a Root Cause Analysis of the error, but the solutions they implement are short-term “band-aids” unlikely to result in sustainable change. For example an audit at LCC in 2018 found that practitioners were documenting visits improperly (failure to use the “Subjective; Objective; Assessment; Plan” format). The action plan was “Discussed with LCC [practitioners]. All LCC [practitioners] agree to use SOAP notes.” In many other examples, the action plan was “Discuss at [month] staff meeting.” These are necessary, but temporary, remedies. Without also making changes to permanent, system-wide tools, such as policies, procedures, forms, initial and ongoing training curricula, etc., once the staff and supervisors present at the time of the corrective action discussion have moved on or have forgotten the staff meeting, the errors will recur; nothing will have changed.
137. In summary, NDCS identifies an insufficient number of meaningful aspects of medical care delivery, does not measure these aspects well (or does not measure them at all),
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does not effectively determine the cause of errors which do occur, and does not implement sustainable change to remediate the errors. As such, the mechanisms for monitoring access to and quality of medical care are quite deficient, posing a threat to the health of residents at NDCS.
2. Leadership and Oversight 138. An effective health care operation requires effective leadership and oversight. Among other qualities, the leader must (a) envision and design a safe health care operation, and (b) have an accurate picture of the current state of that operation. Based on testimony provided by Dr. Deol during his deposition, I do not believe that he fully understands what constitutes a safe operation nor does he have an accurate picture of the current state of key medical operations in NDCS. 139. Dr. Deol’s testimony provides two examples of lack of understanding of safe operations. On page 37, Dr. Deol stated that it is his expectation that all individuals who arrive at Intake undergo the medical screening within 24 hours of arrival.32 Intake screening is supposed to be accomplished as soon as possible after arrival. According to the standard of care, this translates to minutes to a very few hours, as described more in Paragraph 45. Indeed, part of the purpose of Intake screening is to assure that the arriving individual is healthy enough to be admitted and to begin any needed treatments. Thus the Intake process that Dr. Deol envisions is a dangerous one. On page 138, Dr. Deol stated that he thinks his staff write prescriptions for any medications that are medically necessary.33 Deol Dep. 136:10-17. He does not, however, include PRN (“as needed”) medications under the rubric of medical necessary medications. Id. This is
32 He also stated that currently only 90% of individuals are processed within the 24 hour limit. Even if 24 hours were a safe goal, that 10% of individuals are screened beyond 24 hours would be highly dangerous. 33 The importance of distinguishing between medications which are and are not medically necessary is that NDCS medical staff will often instruct a patient to purchase the latter from commissary, which, in turn, means that if the patient is indigent, he may not receive it.
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not consistent with the standard of care. Indeed, the fact that a patient only requires a medication at certain times, under certain circumstances, does not automatically make that medication not medically necessary. Thus Dr. Deol accepts a medical system in which indigent patients who cannot afford to buy PRN medications at the commissary may not receive medically necessary care.
140. Dr. Deol’s testimony provides five examples of his lack of an accurate picture of the operation he leads. First, Dr. Deol stated that COs are not allowed to read patient IIRs. Deol Dep. 94:16-17. Related to this, he stated that it is his understanding that patients place their medical IIRs in a dedicated box which is accessed by medical staff. Deol Dep. 92: 20-22. In reality, in most, if not all NDCS facilities, IIRs are placed in the single general mail box intended for all written communications, and it is a CO who retrieves the contents and reads any IIRs to determine where to send them (including making a decision whether the IIR should be sent to medical, mental health, or dental staff). Dr. Deol also stated that IIRs are triaged within 1 day of receipt (except on weekends). Deol Dep. 96:16-22. Based on my interviews of staff who oversee the process, my interviews of patients who have submitted IIRs, and my review of medical records, IIRs triage often takes longer than Dr. Deol believes. Further, Dr. Deol stated that all LPNs receive didactic and on-the-job training regarding how to use NTPs. Deol Dep. 153:4-12. Based on my interviews, LPNs only receive didactic training in NTPs at one facility. Lastly, Dr. Deol stated that all facilities except NSP and DEC have currently graduated to an electronic medication administration record from the old paper-based record. Deol Dep. 239:24-240:5. However, at the time of my tours LCC and TSCI did not have an electronic medication administration record.
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141. Finally, Dr. Deol’s testimony provided four examples wherein he is both out of touch with the current operations he oversees as well as harboring a dangerous vision of how things should work. Dr. Deol stated that LPNs can legally do anything that an RN does with the exception of starting an intravenous line, administering medications by injection, and administering a breathing treatment (“nebulizer”). Deol Dep. 151:7-22. As cited elsewhere in my report, the differences between the permissible activities of an LPN and RN are much greater than these three tasks. It is frightening that Dr. Deol is not more cognizant of the limitations of key personnel he oversees. Further, LPNs under his supervision in fact do engage in the activities he believes are not permissible. Dr. Deol stated that LPNs under his supervision only use the NTPs in limited ways. Deol Dep. 149:21-25 (“They might assist in the protocol, depending on the skilled levels and scope of practice. There might be some things that they can do and other things they can’t do.”). In fact, based on my record review and interviews with staff, in practice all LPNs are expected to use all NTPs fully. Contrary to Dr. Deol’s stated practice, allowing any use of NTPs by LPNs is dangerous, as I describe elsewhere in Paragraph 25.
142. Related to this, Dr. Deol stated that LPNs are never left alone in a facility as the sole health care provider. Deol Dep. 246:4-6. Dr. Deol is mistaken. Based on my interviews with facility health care staff, depending on scheduling needs, LPNs may the only health care professional in a facility at times. Lastly, Dr. Deol stated that if a patient does not show up for a medical appointment, nurses call the living unit to find out why. Deol Dep. 104:8-15. Based on my interviews, nurses do not do this. Moreover, even if they did, such a system would be insufficient. For the reasons I described in more detail elsewhere in this report, in a safe prison system, a refusal of care must be conducted with the patient face-to-face.
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143. In summary, extensive evidence in Dr. Deol’s deposition testimony depicts a leader of the health care operation whose concepts of what constitute a safe health care operation are incorrect, and whose understanding of what the staff under his staff currently do and do not do—activities that impact patient safety—are mistaken. VII. TYPICALITY OF NAMED PLAINTIFFS’ CLAIMS
144. I reviewed the medical records for the Named Plaintiffs in this case. In these records I found the type of systemic errors that I would expect to find in a system with the widespread deficiencies that I describe throughout this declaration. For example, the records of the Named Plaintiffs reflected flaws in the intake screening process, access to NUEC, access to chronic care, use of force care and medication administration. In addition, this report describes numerous serious flaws in the provision of medical care at NDCS that places all residents, including the Named Plaintiffs, at risk of medical harm. VIII. CONCLUSION
145. Based on the information I considered, in my opinion, the medical care system at NDCS places all patients at NDCS at substantial risk of serious harm. The fundamental flaws detailed above are systemic and stem from inadequate and ineffective policies and practices. In my experience, these types of problems, and the resultant harm to the patients at NDCS, can only be remedied through the development and implementation of systemic solutions.
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4:17-cv-03107-RFR-MDN Doc # 249-58 Filed: 02/19/19 Page 82 of 82 - Page ID # 11525 I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct, and that this declaration is executed at Tumwater, Washington this 15th day of February, 2019.
Marc F. Stern, M.D., M.P.H.
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UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et. al,

Case No. 4:17-cv-03107-RFR-MDN

Plaintiffs,

CLASS ACTION

v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et. al,

EXPERT DECLARATION OF DR. PABLO STEWART, M.D.

Defendants.

I, Pablo Stewart, declare: 1. I have been engaged by counsel for the Plaintiffs to study the Nebraska
Department of Correctional Services (NDCS) mental health care system, and to evaluate whether it provides safe levels of care for prisoner with serious mental illness, as well as for the larger population of prisoners who may develop mental illness. I provide this declaration in support of the plaintiff’s motion for class certification. The Declaration is organized as follows:

I. BACKGROUND AND QUALIFICATIONS............................................................. 2 II. OPINIONS AND FACTUAL BASES........................................................................ 9
A. STAFFING SHORTAGES ................................................................................... 13 B. IDENTIFICATION AND SCREENING. ............................................................. 16 C. LEVELS OF CARE .............................................................................................. 16 D. ACCESS TO CARE .............................................................................................. 21 E. MEDICAL RECORDS ......................................................................................... 24 F. MEDICATION...................................................................................................... 27
1. Inappropriate Use of Psychotropic Medications ............................................... 28 2. Protection of Prisoners on Psychotropic Medications from Heat Injury .......... 32

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G. H. III.

ISOLATED CONFINEMENT .............................................................................. 33 SUICIDE PREVENTION ..................................................................................... 35 CONCLUSION ..................................................................................................... 35

I. BACKGROUND AND QUALIFICATIONS 2. I am a board-certified psychiatrist and through June 2018 was a Clinical
Professor in the Department of Psychiatry, University of California, San Francisco. Currently, I am a clinical professor in the Department of Psychiatry, University of Hawaii, John A. Burns. School of Medicine, Honolulu Hawaii. My curriculum vitae is attached hereto as Exhibit 1.
3. I have over 30 years of experience in correctional mental health care, including serving as the court’s expert in class action cases challenging the provision of mental health care to prisoners. In 1973, I earned a Bachelor of Science Degree at the United States Naval Academy in Annapolis, Maryland. In 1982, I received my Doctor of Medicine from the University of California San Francisco, School of Medicine. In 1985, I received the Mead-Johnson American Psychiatric Association Fellowship for demonstrated commitment to public sector psychiatry and was selected as the Outstanding Psychiatric Resident by the graduating class of the UCSF School of Medicine. In 1985-1986, I served as the Chief Resident of the UCSF Department of Psychiatry at San Francisco General Hospital and was responsible for direct clinical supervision of seven psychiatric residents and three to six medical students.
4. Throughout my professional career, I have had extensive clinical, research, and academic experience in the diagnosis, treatment, and prevention of mental illnesses in correctional and other institutional contexts. In my work, I have specialized in

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community and correctional treatment programs for individuals with chronic and severe mental illnesses, as well as substance abuse and related disorders. I have also specialized in diagnosis, treatment, and care programs for persons with Major Depressive Disorder and Posttraumatic Stress Disorder (“PTSD”), in the management of patients with dual diagnoses and the application of psychotropic medication to such individuals, and in the history and use of psychotropic medications in institutionalized populations.
5. I have also specialized in the needs of severely mentally ill individuals in sheltered treatment programs in institutional contexts, such as the use of administrative segregation among the population of severely mentally ill prisoners. I have designed and taught courses in correctional psychiatry at the University of California, San Francisco. I have also designed and taught courses on the protocols for identifying and treating psychiatric patients with various disorders and have supervised psychiatric residents in teaching hospitals. I have worked closely with local, state, and federal governmental bodies to design and present educational programs about psychiatry, substance abuse, and preventative medicine.
6. Between 1986 and 1990, I was the Senior Attending Psychiatrist for the Forensic Unit of the University of California, San Francisco, which was located at San Francisco General Hospital. In that capacity, I had administrative and clinical responsibility for a 12-bed maximum-security psychiatric ward and worked as the liaison with the Jail Psychiatric Services of the City and County of San Francisco. My duties in that position included advising the San Francisco City Attorney on issues pertaining to forensic psychiatry.

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7. Between August 1988 and December 1989, I served as the Director of Forensic Psychiatric Services for the City and County of San Francisco. In that capacity, I had administrative and clinical oversight responsibility for the psychiatric care provided to the inmate population in San Francisco at both the county jails and in the 12-bed locked inpatient treatment unit at the San Francisco General Hospital. At the time, mental health care in San Francisco’s jails was subject to a consent decree in Stone v. City and County of San Francisco, 968 F.2d 850 (9th Cir. 1992). During that period, San Francisco’s jails were overcrowded, and the Stone consent decree included remedies designed to limit overcrowding. While I was working as the Director of Forensic Services in San Francisco, the plaintiffs in the Stone case brought contempt proceedings against the City because of overcrowding that they asserted violated the consent decree.
8. I have also served as a psychiatric expert or consultant to various federal courts or other organizations implementing remedial decrees covering the provision of mental health care in correctional institutions. For ten years, between April 1990 and February of 2000, I served as a court-appointed medical and psychiatric expert for the Court in the consent decree case Gates v. Deukmejian, E.D. Cal. Case No. CIV S-871636. Among other things, that case involved the provision of psychiatric care to mentally ill inmates at the California Medical Facility (“CMF”) in Vacaville, California.
9. My experiences working on the Gates case also informed me about the difficulty of providing mental health services in locked, high security units. As part of the Gates case, CMF was forbidden from housing mentally ill inmates in its Willis Unit, a three-tier administrative segregation unit, because of the severity of conditions and the

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acknowledged difficulty of providing mental health services in this type of setting. Housing mentally ill individuals in the Willis Unit was also forbidden because of the difficulty of conducting emergency response in the unit.
10. Between October 1996 and July 1997, I served as a psychiatric expert for the United States District Court for the Northern District of California in the case of Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), an omnibus case involving psychiatric care and other issues at Pelican Bay State Prison in Crescent City, California. In my work on the Madrid case, I gained first-hand knowledge concerning the severe impact of prolonged isolation in segregation units on mentally ill inmates, as well as additional concrete understanding of the need for constant monitoring of both nonmentally ill and mentally ill inmates in lock up units in order to prevent any further decompensating, since housing in these units by itself sometimes causes, contributes to and/or intensifies psychiatric instability.
11. Between July of 1998 and February of 2004, I served as a psychiatric consultant to the National Council on Crime and Delinquency (“NCCD”) and subsequently for the Institute on Crime, Justice and Corrections at Washington University (when it took over monitoring responsibilities from NCCD) in their efforts to monitor juvenile detention and treatment facilities operated by the State of Georgia. In that case, I monitored an Agreement between the United States Department of Justice and the State of Georgia designed to improve the quality of care in its juvenile detention facilities. The Agreement encompassed mental health care, medical care, educational services, and treatment programs. Also, as part of the case, Georgia created significant new mental

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health treatment programs with dedicated staffing and capacity limitations, including most significantly a new inpatient treatment facility for boys and a second new inpatient treatment facility for girls. The Agreement also included a provision forbidding the prior practice of housing suicidal youths in administrative segregation units, and required “mainstream” housing and suicide watch monitoring of such youths. The youths would go to school and work during the day, and would continue their suicide watch in their housing units overnight. This provision was introduced because it had become clear under the prior practices that suicidal youths frequently would not come forward with their suicidal feelings because they did not want to be locked down in administrative segregation for suicide watch. This further demonstrated to me the dangerous and damaging nature of isolation in locked units for suicidal individuals. It also demonstrated to me the dangerous nature of punitive suicide watch conditions when they discourage suicidal individuals from coming forward and seeking treatment.
12. Between June of 2003 and December of 2004, I was hired by the State of New Mexico as a defense expert for the implementation phase of the psychiatric sections of the “Ayer’s Agreement” covering the New Mexico Corrections Department (“NMCD”). The Agreement was a settlement between a class of New Mexico prisoners and the NMCD concerning the provision of psychiatric care for inmates in New Mexico’s highest security facility. The Ayers Agreement concerned a mental health treatment program in a disciplinary detention unit. The treatment program implemented in the unit was based in part on the treatment standards for the Psychiatric Security Unit mental health care programs in California. New Mexico implemented the new treatment program

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with an acknowledgement that they needed to maintain minimum clinical staff-to-inmate ratios given the severe nature of the housing conditions in the locked-down unit, and the potential for mental decompensation.
13. Between March of 2003 and the summer of 2006, I worked as an expert for the United States Department of Justice in connection with inspections to identify and remedy various problems at the Maxey Training School, a youth facility with large medical and mental health treatment programs in Whitmore Lake, Michigan. The case involved the adequacy of medical and mental health care provided at the facility. The case included an investigation of excessive lock-downs of suicidal youths.
14. In 2007 and 2008, I prepared expert statements and testified before the court and the three-judge panel in the Coleman/Plata overcrowding litigation. My expert report in that case was cited twice in the United States Supreme Court decision upholding the three-judge court’s imposition of an order requiring California to reduce overcrowding.
15. In 2008, I served as an expert and testified before the United States District Court for the District of Arizona in Graves v. Arpaio, No. CV 77-479, in support of Plaintiffs’ opposition to the Defendants’ Motion to Terminate the relief related to mental health care at Maricopa County Jail. I concluded at the time that Defendants failed to provide mental health care to seriously mentally ill prisoners at Maricopa County Jail, and those in need of mental health treatment. As a result, mentally ill prisoners at Maricopa County Jail unnecessarily suffered, and were put at risk of harm through the deficiencies in Maricopa County Jail’s mental health care system. In some cases, the risk

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of harm mentally ill prisoners endured was exacerbated by their harsh living conditions, particularly for those housed in the segregation/closed custody units throughout the Jail. My conclusions were based upon a multiple-day site visit to Maricopa County Jail facilities, interviews, discussions with staff, and a review of medical records and other documents relevant to mental health care then being offered at Maricopa County Jail.
16. In 2013, I was retained by counsel for the plaintiff class in Parsons v. Ryan, D. Az. Case No. CV 12-00601, to offer my opinion of the mental health care provided to prisoners at the Arizona Department of Corrections. During my inspection tours, I viewed cells and other housing areas, mental health treatment spaces, mental health programming areas, and other areas to which prisoners have access. I also conducted cell-front interviews with prisoners and reviewed prisoner records.
17. I have held numerous positions with responsibility for ensuring the quality of clinical services provided by inpatient and community-based programs. From 1997 to 1998, I was Director of Clinical Services for San Francisco Target Cities Project. I also served as (1) Medical Director of the Comprehensive Homeless Center, Department of Veterans Affairs Medical Center in San Francisco, where I had overall responsibility for the medical and psychiatric services at the Homeless Center; (2) Chief of the Intensive Psychiatric Community Care Program, Department of Veterans Affairs Medical Center in San Francisco, a community-based case management program; (3) Chief of the Substance Abuse Inpatient Unit, Department of Veterans Affairs Medical Center in San Francisco, where I had overall clinical and administrative responsibilities for the unit; and (4) Psychiatrist, Substance Abuse Inpatient Unit, where I provided consultation to the

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Medical/Surgical Units regarding patients with substance abuse problems. Between 2006

and 2009, I served as a member of the Board of Directors of the Physician Foundation at

the California Pacific Medical Center.

18. I also served as a Physician Specialist to the Westside Crisis Center, San

Francisco, from 1984 to 1987, and to the Mission Mental Health Crisis Center from 1983

to 1984. I was the Chief of Psychiatric Services at the Haight Ashbury Free Clinic from

1991 until February 2006. I also worked as a Technical Assistance Consultant to the

Center for Substance Abuse Treatment, which is part of the Substance Abuse and Mental

Health Services Administration of the United States Department of Health and Human

Services.

19. Beginning in May 2016, and continuing in the present, I am serving as the

court-appointed monitor in Ashoor Rasho, et al. v. Director John R. Baldwin, et al., No.

1:07-CV-1298 MMM-JEH (C.D. Illinois), a case about mental health care in the state

correctional system in Illinois. In the Rasho monitoring, I have conducted numerous tours

of the Illinois state prisons, interviewed hundreds of prisoners, and provided detailed

reports to the parties and the Court on the status of the prison mental health system.

II. OPINIONS AND FACTUAL BASES 20. I have been asked to render an opinion as to the policies and practices of the

Nebraska Department of Correctional Services (“NDCS”) and its agents with regard to

the provision of mental health care to NDCS prisoners.

21. I have reviewed numerous NDCS policies, documents within the named

Plaintiffs’ medical files as produced by NDCS to counsel for the Plaintiffs, deposition

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transcripts of NDCS officials, and other medical files as produced by NDCS to counsel

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for Plaintiffs. A complete list of the materials I have reviewed is attached to this declaration as Exhibit 2.
22. I toured six NDCS facilities during the last week of October and the first week of November in 2018. During my tour, I visited the Tecumseh State Correctional Institution ("TSCI"), the Nebraska State Penitentiary ("NSP"), the Lincoln Correctional Center ("LCC"), the Nebraska Correctional Center for Women ("NCCW"), the Diagnostic and Evaluation Center ("DEC"), and the Nebraska Correctional Youth Facility ("NCYF"). During the tours I was able to randomly select individual files of prisoners receiving psychiatric care at each facility and had the opportunity to speak with individual prisoners and NDCS staff about the provision of mental health services at NDCS facilities.
23. My opinions at this early stage of the case are necessarily constrained by the limited amount of information I have. Although I had the opportunity to make site visits to NDCS facilities, speak with prisoners and staff, and review a limited set of prisoner records, I have not yet had the opportunity to conduct confidential interviews with prisoners or to review a more robust sample of medical records of the prisoner population. Nevertheless, based upon the documents listed in Exhibit 2, I am able to reach the following preliminary opinions. These should not be taken as an exhaustive list of the opinions I will reach in this case, and I reserve the right to supplement or modify these opinions as more information becomes available.
24. Based upon my review, I have formed the opinion that NDCS lacks the systems and resources needed to ensure that prisoners with mental illness are identified

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and treated in the manner necessary to prevent serious harm or death. The problems fall into the following specific areas, discussed in more detail in the body of this declaration:
a. Staffing. Mental health care services at NDCS are dangerously understaffed, and are lacking in the basic components needed to prevent needless suffering, bodily injury and death. NDCS employs too few clinicians—particularly at the psychiatrist level—for the number of prisoners it houses.
b. Identification and Screening. The most dangerous times for prisoners are the first few weeks after arrival at an institution or housing unit. A disproportionate number of attempted and completed suicides occur within hours or days of arrival. Prison systems must develop and employ screening mechanisms to ensure that prisoners with serious mental illness are identified promptly and assigned to the correct levels of care.
c. Levels of Care. NDCS lacks a system for ensuring that prisoners receive the necessary level of mental health care for their current conditions. Mental illness is not static. Persons with mental illness experience varying levels of acuity over time, especially in stressful and rapidly changing prison and jail environments. By operating without defined levels of care, NDCS cannot promptly provide prisoner patients with the necessary increases in mental health treatment when their conditions change, creating substantial risks of harm for such patients.
d. Access to Care. NDCS relies on an all-purpose Inmate Interview Request (known as a “kite”) for prisoners to request mental health care. This system

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seriously impedes access to care, adding to the already dangerous delays in treatment caused by understaffing.
e. Records. The medical records system does not function properly. A non-functioning medical record systems creates substantial risks of injury and death because it prevents mental health clinicians from properly diagnosing the patients’ conditions, and from safely prescribing medication.
f. Medication. The systems for prescribing and adjusting medication, and for detecting and treating dangerous side effects of powerful psychotropic medication are not functioning at the level needed to prevent serious harm and death.
g. Isolation. Aggravating all of these problems with the NDCS mental health care system is an overreliance by custody on restrictive housing, in which regimes of isolation and sensory deprivation make already sick people sicker, and cause previously healthy people to develop mental illness.
h. Suicide Prevention. Prisoners are at high risk of suicide. This applies both to prisoners who come into to the system without any mental health diagnosis, and those already diagnosed. The problems identified above make it impossible for NDCS to implement an effective suicide prevention program.
25. As I detail below, the shortage of mental health staff, structural deficiencies in the provision of mental health treatment and medications are statewide systemic problems. Prisoners who need mental health care have already experienced, or will experience, a serious risk of injury to their health if these problems are not addressed. Additionally, the problems that Plaintiffs experienced and continue to experience with

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NDCS' mental health system are typical of the problems one would expect to see as a

result of these systemic failures. In my experience in correctional mental health care,

these types of systemic problems have most commonly been addressed through an

injunction directed against directors and administrators of the prison system.

A. STAFFING SHORTAGES 26. Qualified mental health staff are the foundation of any prison mental health

care system. Based on my site visits to NDCS facilities, conversations with NDCS staff,

my review of prisoners' mental health and medical files, my review of NDCS policies,

my review of investigatory documents compiled or authored by Nebraska's Inspector

General, and my review of deposition testimony given in this case it is my opinion that it

is apparent that there have been and continue to be severe systemwide shortages of

mental health staff in NDCS.

27. NDCS' has mental health staffing shortages that are both longstanding and

chronic. I have not yet fully evaluated the NDCS mental health staffing plans to

determine whether NDCS has properly assessed its treatment workloads to set its targets

for mental health staffing. But, even assuming its staffing targets are correct, NDCS is

not meeting them. Persistent vacancies in allocated positions are mentioned in each of the

annual reports issued by the Office of the Inspector General. As of June 14, 2016, 34 of

the 161 behavioral and mental health positions were vacant (2016 OIG Report, pg. 17).

One year later, the most recent information on staffing shortages showed almost no

change from the year before and noted at that time there were no psychiatrists within

NDCS (2017 OIG report, pg. 57). As of July 4, 2018, NDCS had 29 Behavioral Health

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clinical vacancies (2018 OIG Report, pg. 23). Some facilities are facing worse shortages

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than others. For example, OCC had two total behavioral health clinical vacancies as of

the end of FY 2017, and that number grew to ten vacancies by July of 2018. (2018 OIG

Report, pg. 24).

28. In his December 2018 deposition, NDCS’s statewide medical director, Dr.

Deol testified that there were two vacancies for on-site psychiatrists within NDCS

facilities, one being a chief of psychiatry, a position that was vacant for seven months at

the time of his deposition. (DEOL 230:3-18.) NDCS currently utilizes two on-site

psychiatrists to treat patients at LCC, DEC, and NCCW. NDCS utilizes telepsychiatry at

every other facility, as well as partial coverage at NCCW. (DEOL 235:3-.237:25) Also,

according to Dr. Deol, psychiatry services are provided by two part-time psychiatrists at

NSP.

(DEOL 240:1-12.) This provides NDCS with one additional full-time employee in terms

of psychiatry time. (DEOL 235-236.) According to Dr. Deol, the telepsychiatry services

are provided by three individuals, one psychiatrist and two psychiatric nurse

practitioners. (DEOL 237-238.)

29. By Dr. Deol's own estimate, between 70 and 80 percent of NDCS prisoners

are receiving psychiatric medication. This would be an extraordinarily high percentage,

and I question the reliability of Dr. Deol’s recollection on this point. In a 2015 report

prepared for NDCS by Dr. Bruce Gage, former Chief of Psychiatry for the Washington

Department of Corrections, Dr. Gage estimated that approximately 82% of NDCS’s

5.225 prisoners in April 2015 were diagnosed with mental illnesses, including those with

only a substance abuse diagnosis. (Nebraska Department of Correctional Services,

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Behavioral Health Needs Assessment, December 2015 at 11.) Dr. Gage estimated that

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approximately 52% of NDCS prisoners were diagnosed with a mental illness other than just substance abuse. Dr. Gage estimated that 25% of male and 50% of female prisoners were on psychotropic medications. These figures seem more plausible than Dr. Deol’s recollection of 70% to 80% of prisoners receiving psychiatric medications. Even using Dr. Gage’s figures, however, it is my opinion having the equivalency of three or four fulltime psychiatrists, two being on-site and full time, the remainder being through telepsychiatry and part-time staffing, is insufficient to meet the needs of this population. It is my opinion at this stage of the case that such a psychiatrist staffing ratio places all prisoners needing mental health services at risk for serious harm.
30. One result of having insufficient mental health staffing is delay in accessing appropriate care. For example, I reviewed the Critical Incident Report of Prisoner A1 in TSCI, an individual diagnosed with Adjustment Disorder with a Mixture of Depressed and Anxious Mood and Major Depressive Disorder three months prior to his suicide. In the three months prior to this individual's suicide he requested psychiatric care twice indicating that he needed mental health interventions, that his prescribed medication was not working, and he could "not stand it anymore." After his first plea for assistance, this individual was informed that he would be seen in one to two months. Moreover, the Critical Incident Report indicated that the prisoner's new diagnoses were not uploaded to NICAMS and that mental health and medical staff were not apprised of this individual's

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1 For medical privacy reasons, I refer to prisoner/patients here by a letter code. A guide

to the codes with the actual patient names is attached as Exhibit 3.

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acute situation because the psychiatry provider, "does not consistently enter mental health diagnoses into NICAMS or consistently inform mental health of changes to an inmate's psychiatric medications; nor do these three entities meet on a consistent basis to share information." This is unacceptable. The delay in providing this prisoner mental health treatment lead to serious and deadly consequences, and had this individual been provided with timely access to the services he desperately was requesting, he may still be alive.
B. IDENTIFICATION AND SCREENING. 31. NDCS policies and practices for identification of screening of prisoners at arrival in the system, and after transfers within the system are dangerously lacking. Initial screenings are performed by custody staff with no medical qualifications. (DEOL 167-168.) Although the policies are unclear, Dr. Deol testified that an incoming prisoner is not screened by medical staff until 14 or even up to 30 days later. (DEOL 83-85.) In this scheme, inmates do not routinely see a mental health professional until weeks after arrival. This system is indifferent to the fact that the riskiest time for prisoners is the first few days after arrival, when prisoners are often suffering the worst effects of dislocation from society to an institution, and facing the realities of a long prison sentence. Many attempted and complete suicides occur in these first few days and hours. A functioning correctional mental health system requires screening by mental health professionals within hours or days or arrival, not within weeks. C. LEVELS OF CARE 32. Prisoners with mental illness need to be assessed, treated, and monitored on a timely and regular basis by qualified mental health staff.

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33. A correctional mental health care system must include discreetly defined, and available, levels of care sufficient to meet the needs of its population. In the context of mental health in corrections, this means that there must be an outpatient level of care, an inpatient level of care, a residential level of care, crisis care or acute care, and suicide watch protocols in place.
34. When I toured NDCS facilities I asked mental health providers and other NDCS staff at each facility about their understanding of the NDCS levels of mental health care. I received a variety of answers from each individual that I spoke with, however, there was not one person that was able to answer this question fully, and many mental health providers were not even familiar with the concept of differing "levels of care" within the provision of mental health services.
35. The concept of having differing levels of mental health care is not new. One of the chief purposes of having discrete levels of care is to ensure that patients are accessing mental health services that are appropriate in intensity, scope, and duration, and based upon clinically accepted standards. Due to the waxing and waning aspect of mental illness that manifests in fluctuating clinical presentations of symptoms on a day-to-day, week-to-week, or even month-to-month basis, the lack of policy here will impact all prisoners with mental health issues.
36. For instance, it is foreseeable and likely that a prisoner with mental illness that has been maintaining an acceptable level of behavior, at what would be an outpatient level of care, can have an acute mental decompensation for a variety of reasons and immediately require a higher level of care which necessitates additional staffing,

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monitoring, and modifications to their treatment plan. The fact that NDCS would not have a defined level of care, or uniform standards of practice available to treat such an individual, places them at an unreasonable risk of harm, and unnecessarily delays the stabilization of the prisoner's condition.
37. Similarly, prisoners needing a heightened level of care, such as a residential level of care, may be able to safely transition to less intensive services, but the lack of any uniform criteria on which to base such a decision could foreseeably cause a prisoner to unnecessarily languish in more restrictive treatment modalities than is medically necessary or beneficial. Moreover, the lack of criteria upon which to base such a decision places patient needing a heightened level of care at an unnecessary risk of harm in that they will foreseeably be inappropriately discharged to a lower level of care.
38. NDCS’s statewide medical director, Dr. Deol, testified that when male prisoners of any security level cannot function in the general population due to mental illness, the system responds by sending them to the Secure Mental Health Unit, ("SMHU") at LCC. (DEOL 249:15-17.) This unit, however, operates simply as an extension of the Restrictive Housing, or segregation units, and lacks the resources and programs necessary for an inpatient or residential mental health treatment unit. Even to the extent that this SMHU serves as a substitute for a higher level of mental health care, its use is dangerously haphazard due to the lack of defined levels of care and protocols for moving inmates into and out of levels of care. The result is the prisoners are admitted to and discharged from the SMHU without necessary clinical resources, especially on discharge to housing units with no mental health mission. Prisoner B, was placed in the mental

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health unit at LCC in response to his severe and increased manifestations of his PTSD and Bipolar Disorder. Whether he received any clinical benefit from the SMHU is highly questionable, but in any event, he was discharged to an even less clinical setting without proper planning, and subsequently engaged in serious self-injurious behavior that necessitated his hospitalization. This lack of defined levels of care creates a substantial risk of harms to all NDCS prisoners, both those currently without mental illness who may develop mental illness, and those with mental illness whose conditions can worsen at any time.
39. During my site visits, I encountered at least four individuals whose mental health needs were so acute that it is not possible for NDCS, given their current staffing, resources, and facilities, to meet the treatment needs of these patients. Dr. Deol testified that in very acute cases it is possible to transfer a prisoner to the Lincoln Regional Center ("LRC"), or the University of Nebraska Medical Center ("UNMC"), but NDCS has not transferred any prisoner to those facilities during his tenure as NDCS Medical Director (which started in January 2017). (DEOL 247-248.) Moreover, Dr. Deol testified that there are no written NDCS policies regarding how to handle prisoners that are having an acute psychotic episode and that prisoners suffering these episodes are frequently are taken to the secured nursing facility ("SNF"). (DEOL 245.) I have personally visited and spoken with NDCS staff employed in each SNF within NDCS. The SNF functions essentially as a prison infirmary without a specific mental health mission. Prison infirmaries are not mental health units, and a policy of employing them as such exposes prisoners with mental illness to serious risks of injury and death.

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40. The housing units that Dr. Deol identified as having a mental health mission are the SMHU at LCC and the Strategic Treatment and Reintegration (“STAR”) unit at NCCW for women. As noted above, the SMHU functions more as an extension of Restrictive Housing than as mental health units. Dr. Deol testified that there are currently 32 beds within the SMHU at LCC, and 12 beds within the STAR unit at NCCW and that the admission criteria for admittance to these units is, "any decompensation mental illness." (DEOL 250.) Dr. Deol testified that if a male prisoner has an acute mental health crisis at any other facility, NDCS will potentially temporarily treat them at a SNF, then seek to transfer the patient to the SMHU. (DEOL 249-250.) As I have stated above, the SNF, or infirmary, setting is not a safe place to treat persons in mental health crisis. Nor are the SMHU or STAR units.
41. For example, one prisoner with whom I spoke personally and had an opportunity to review their medical file, Prisoner C, at DEC was diagnosed with Schizoaffective Disorder and was so mentally ill that he required an in-patient level of care. I did not observe any facility within NDCS that could even be considered remotely adequate in light of this individual's behavioral manifestations and symptoms. In my opinion this individual would meet the criteria for admission into an in-patient psychiatric facility, and NDCS' failure to either provide or transfer this prisoner to such a level of care places him and others at DEC at an unreasonable risk for harm.
42. A correctional mental health system need not maintain every possible level of care "in-house," but must at least ensure prisoners have real and meaningful access to appropriate levels of mental health care. Based upon my review of NDCS inmate medical

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files, and my initial impressions from conversations with these individuals, the needs of inmates with the most serious mental health needs exceed what NDCS is able to provide internally and these individuals are not transitioning to an acceptable acute level of care.
43. The lack of uniform practices and policies in this area pose a substantial risk of serious harm to prisoners.
D. ACCESS TO CARE 44. NDCS does not have an effective means for prisoners to make their mental health needs known to qualified staff in a timely manner. Upon speaking with prisoners, NDCS staff, and mental health providers, I learned that the Inmate Interview Request Form (also known as a “kite”) is the primary means by which prisoners request and eventually access mental health care. 45. While there may be other means of making mental health needs known to NDCS staff, such as requesting care from NDCS staff or medical professionals directly, the kite appears to be the primary vehicle of which to initiate mental health care within NDCS. Even in the instances in which mental health professionals directly interact with prisoners, there are issues with accessing care. For example, I reviewed the Critical Incident Report of Prisoner D, an individual residing at TSCI with a known history of depression and suicidal ideations, and at least one incidence of TSCI not completing a mental health appointment because of a "custody" issue. In this case, a PLMHP working at TSCI conducted a "mental health status examination" of Prisoner D not long before his suicide and she indicated that the prisoner "waived her off" and that he knew how to reach mental health if he wanted to. However, there is no indication that anything further

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was done. This inmate's lack of access to care had grave consequences, shortly thereafter, Prisoner D committed suicide.
46. Moreover, kites are not triaged by mental health staff, but by custody staff. Putting mental health triage in the hands of custody staff is dangerous. During my tour of NDCS facilities I reviewed 68 medical files of prisoners across six different facilities. Upon review of these medical files I have noted at least eleven separate prisoners, across all facilities, that have faced an unnecessary barrier in requesting or accessing mental health care due to the fact that unqualified NDCS staff control access to mental health care. I have reviewed files at each of the NDCS facilities that I visited and found clear examples of NDCS staff receiving a request for mental health services and not facilitating the provision of services in a timely manner, such as described herein by the tragic consequences suffered by Prisoner A.
47. Another method of requesting mental health care or alerting staff to mental health needs is through filing an official grievance. Inmates with mental health issues who may need assistance obtaining and filing grievance forms are not provided assistance or accommodations. In fact, the most common way for an inmate with a mental health issue who needs assistance with filing a grievance receives any assistance is through asking another inmate for it. (FORGEY 28.) Staff do not receive training on how to assist inmates with mental illnesses in filing grievances. (FORGEY 29.) The grievance process should provide all inmates the opportunity to communicate mental health concerns and grievances to NDCS. Due to NDCS’ failure to provide assistance to people with mental illnesses who need help navigating the grievance process, some

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inmates are functionally locked out of the grievance process and unable to use it as a means of communicating concerns related to their mental health. The grievance process is utilized system-wide, so this deficiency affects all inmates with mental health issues who need assistance.
48. NDCS staff, including mental health professionals, routinely respond to requests for medical services by making needless requests to the prisoner for follow-up information, by diverting the request to irrelevant departments, and in some cases by outright refusing to see a patient or informing them when they will be seen. This back and forth written correspondence between prisoners and NDCS staff unnecessarily and frequently impede the process of connecting the prisoner to the services they are requesting within a timely manner.
49. For example, I reviewed the medical file of and spoke with Prisoner E at NSP. He is diagnosed with Bipolar Disorder Type II, Attention-Deficit Hyperactivity Disorder, Polysubstance Abuse Disorder, and Antisocial Personality Disorder and has received a variety of psychotropic medications. This individual has serious mental health issues and has experienced decompensation while placed in restrictive housing. However, this individual faced a variety of barriers in accessing appropriate mental health care— including long back-and-forth dialogs via the kite system that simply delayed care. Prisoner D’s requests should have been properly triaged so that he would have been visited by a qualified mental health professional based on his symptomology and behavioral manifestations. The kite system's failures directly caused this individual to

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miss medical appointments and placed him at an unnecessary risk for harm through the

delay in his access to care.

50. Similarly, I have reviewed the medical files of, and spoken with Prisoner F,

an individual that resides at LCC, a man that is so acutely ill that he requires a residential

or inpatient level of mental care immediately. Prisoner F has a diagnosis of

Schizoaffective Disorder and Anti-Social Personality Disorder and has debilitating

auditory command hallucinations which direct him to harm himself and others. During

this individual's treatment at LCC he has been repeatedly screened away from proper

mental health care through unqualified staff responding to his kites and not directing him

to mental health care. Moreover, this individual has been prescribed Haldol Decanoate, a

powerful psychotropic medication, but his side effects are not being managed

appropriately and his hallucinations have not improved. This prisoner has been

vacillating between a variety of different medications for years, but he requires a level of

treatment which exceeds the capacity of NDCS.

E. MEDICAL RECORDS 51. A properly functioning medical records system is necessary for safe prison

mental health care. Prison mental health treatment involves the use of powerful

psychotropic drugs, which can only be used safely in a coordinated system of care, in

which prescribers have access to up-to-date records. In addition, records systems are

essential to prevent suicide and self-harm, as clinicians must be able to access a

prisoner’s history in order to fully access current risks.

52. During my review of NDCS medical files I frequently noted issues relating

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to the lack of internal consistency and organization in the medical files. While I am aware

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that NDCS is employing a partially electronic medical record system, I saw no evidence that an electronic system as deployed has remedied the problems.
53. For example, many of the Medical Administration Records ("MARS") contradicted the contemporaneous psychiatric recommendations and notes kept in the same file.
54. The risks of a poor medical record system are aggravated when the mental health system relies heavily on remote providers seeing patients through video links, as NDCS does. Such “telepsychiatry” providers have no ability to review the patient’s onsite files or consistently talk to on-site clinicians, and must rely on whatever records can be faxed, emailed or made available over a network. I have observed many telepsychiatry sessions in many prison and jail systems where providers attempt to use electronic medical records to make up for lack of on-site information, and the results are consistently poor and often dangerous for the prisoner patient.
55. Dr. Deol testified that NDCS does not provide access to anything but a prisoner's NICAMS and MARS to telepsychiatry providers as a matter of course (DEOL 240-241.) According to Dr. Deol, the information contained in NICAMS only includes behavioral health progress notes, recent psychiatric notes, diagnostic information, and chronic care information. Moreover, some NDCS health staff, including medical doctors, do not have access to NICAMS. (DEOL 174-176.) Dr. Deol testified that there were roughly 5,000 telepsychiatry visits last year, which made up about half of the psychiatry encounters. (DEOL 237.) Furthermore, Dr. Deol testified that telepsychiatry providers are only provided access to a prisoner's requests for psychiatric care, or kites, if they are

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directed to them via electronic mail. (DEOL 240.) Finally, Dr. Deol testified that telepsychiatry providers have their own electronic records which are supposed to be faxed to NDCS and uploaded into NICAMS. (DEOL 241.) This kind of Rube-Goldberg system of workarounds is typical of the failed telepsychiatry schemes I have observed around the country.
56. Some of the dangers in this system of documentation and coordination of care are exemplified by Prisoner G at NSP. This individual has chronic physical health issues and severe mental health issues. However, upon reviewing this prisoner's file I noted inconsistent diagnoses between the individual's physical health and mental health files. The disorganization, and structural deficiencies of NDCS recordkeeping all but ensure that that physical health professionals and mental health professionals will not have access to the same information. This fact that this individual's providers are apparently not aware of this individual's full treatment history unnecessarily places him at risk for harm. This is also exemplified by NDCS' admitted failures to coordinate a cohesive system of record keeping between psychiatric care, mental health providers, and medical staff as discussed herein as related to Prisoner A.
57. Based on this information, I believe NDCS prisoners are placed at an unreasonable risk of harm in that NDCS has failed to maintain a system of documentation necessary to coordinate their physical, mental, and psychiatric needs. Based on the system as described by Dr. Deol, it is foreseeable and likely that a telepsychiatry provider will not possess the necessary medical information about a patient to formulate a sufficient psychiatric treatment plan.

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F. MEDICATION 58. According to Dr. Deol, between 70 and 80 percent of NDCS prisoners are currently receiving medication for mental health illnesses. (DEOL 225.) As I have stated above, this estimate appears too high, and I would credit Dr. Gage’s estimate that 25 percent of men and 50 percent of women are receiving psychotropic medications. This is still a substantial percentage of the Nebraska prisoners, and medication management for this population is a major undertaking that is beyond NDCS’s current capabilities. 59. The administration of psychotropic medications needs to be supervised by a psychiatrist and prisoners need to be able to make their mental health needs known and have those needs promptly assessed by qualified staff. 60. Based on my site visits to NDCS facilities, my conversations with NDCS staff, my review of prisoners' mental health and medical files, my review of NDCS policies, my review of investigatory documents compiled by Nebraska's Inspector General, and my review of deposition testimony in this case I have reached several preliminary conclusions regarding the provision of psychiatric medication to NDCS prisoners. 61. NDCS has not deployed the resources necessary to safely provide psychiatric medication to the incarcerated population. The systemic deficiencies I have observed so far in this area includes the inappropriate use of psychotropic medications, including inadequate utilization of laboratory monitoring, and the absence of any policy or practice regarding proactive measures to protect prisoners on psychotropic medication from heat injury.

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62. The practices and policies of NDCS and its agents in this area pose a

substantial risk of serious harm to prisoners.

1. Inappropriate Use of Psychotropic Medications 63. Psychotropic medications can, and should be, utilized as part of a patient's

mental health treatment for a variety of serious mental illnesses. Indeed, while

psychotropic medications can be effective in treating these illnesses, the powerful nature

of many of these medications cannot be overstated. The formulation of psychotropic

medications has improved a great deal over the last several decades, yet even modern

psychotropic medications still have serious side effects for patients which must be closely

monitored by a licensed psychiatrist. Moreover, due to the powerful nature of

psychotropic medication, the prescription and formulation of a patient's medication must

be precise, suitable to treat the patient's condition and active behavioral manifestations,

and consider the patient's physical condition and other prescribed medications.

64. The failure to closely follow the accepted standards of practice in utilizing

psychotropic medications leads to serious negative consequences for patients. During my

site visits to NDCS facilities I reviewed 68 medical files of prisoners across six different

facilities, and found that that in at least 34 of these cases the medically accepted standard

of care had not been met, had been entirely disregarded, or NDCS had failed to document

clinically appropriate provision of psychotropic medication.

65. In these 34 cases, the medical files indicate that NDCS has failed to meet

the applicable standards of psychiatric care in a variety of ways including having an

inadequate formulary of psychotropic medication, utilizing improper dosages and types

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of psychotropic medication, utilizing an inappropriate number of different psychotropic

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medications within a distinct time period, prescribing antipsychotic medication for patients with no diagnosis or symptoms of psychosis, and failing to treat the side effects caused by psychotropic medications.
66. For example, one of the prisoners with whom I met, and whose medical files I reviewed, Prisoner H, had been prescribed Haldol Decanoate. However, this individual had been immediately prescribed the long acting version of this psychotropic medication, as opposed to first establishing that the medication would be effective through prescription of the short acting version, which is the clinically accepted practice. This ensures the medication interacts with the patient appropriately and reduces the patient's symptoms. It is only appropriate to prescribe the long acting version of the medication after the short acting medication is shown to be efficacious, to avoid unnecessary decompensation, or in the event the medication is not effective in allowing the provider to alter the treatment modality to avoid further harm to the patient. In practice, this means the patient was not stabilized as quickly as she should have been, and the patient was placed at an unnecessary risk of harm should the medication have proven to be ineffective.
67. Due to NDCS' failure to abide by the accepted clinical practice, this individual has been repeatedly placed in solitary confinement, has had episodes of smearing feces on the wall, and continues to suffer from command hallucinations. Furthermore, this patient suffers from chronic constipation, which is one of the wellknown side effects of this particular psychotropic medication. Despite this, NDCS failed

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to prescribe any medication to alleviate this side effect. The patient’s only option is to purchase over the counter medication from the canteen.
68. I also reviewed the file of Prisoner I, an inmate at NCCW diagnosed with a mood disorder. NDCS was treating this patient with Ziprasidone and Sertraline during my tours, but the auditory hallucinations and depression she experienced were not being ameliorated by the treatment modality in the slightest. Her medications had the effect of making her more docile, but she is not currently receiving effective psychiatric treatment that could reduce her symptoms and the suffering they cause. Moreover, this individual requires a level of care that is not currently offered to her at NCCW, or anywhere within NDCS. As such, this individual has been placed at an unnecessary risk for harm.
69. In my experience, the issues detailed above can be mitigated or entirely avoided in the correctional setting by maintaining a medically adequate formulary and not having to rely upon outdated and ineffective medications to treat patients. Furthermore, these issues can be mitigated or prevented by having a sufficient number of qualified mental health staff available and employed in each facility to prescribe and monitor the use of psychotropic medications, as well as through employing a qualified director of psychiatry that can implement uniform standards of practice and care across different facilities and with different providers.
70. As noted herein, and in the deposition of Dr. Deol, NDCS does not have an acting chief of psychiatry, a position that I have found to be critical in the provision of a mental health system in the correctional setting. (DEOL 230-231.)

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71. The safe provision of many types of psychotropic medications requires extensive and thorough laboratory monitoring to ensure the health and safety of the patient. For example, the standard of practice for a patient receiving Olanzapine would be to perform a comprehensive metabolic analysis prior to the prescription of the medication and every three months thereafter, unless a specific clinical situation demands otherwise.
72. Laboratory monitoring is necessary for patients receiving these medications for two primary reasons. First, to ensure the patient is receiving the proper dosage of the medication. Second, to ensure the psychotropic medication is not causing the patient’s physical health to fail. Many psychotropic medications are known to cause potentially catastrophic health consequences for certain patients. Lab monitoring allows psychiatrists to monitor certain health markers on an ongoing basis to ensure this is not happening, and to intervene if it is.
73. For example, I reviewed the file Prisoner J that was taking Carbamazepine, Cetirizine, Doxepin, Gabapentin, Venlafaxine, and Prazosin but according to his medical files he had not had the necessary blood work done for a span of six consecutive months in 2018. Based upon the information in this individual's file, he should have had blood work completed prior to the initiation of his medication and then every three months thereafter. I found this type of issue to be common at each facility that I visited.
74. In addition to laboratory monitoring, the safe use of psychotropic medications also requires timely evaluation for side effects, including timely regular evaluations by a psychiatrist. Such timely evaluations are impossible in an understaffed system like NDCS. The side effects of powerful psychotropic medications can cause

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permanent injury. For example, some medications can interfere with the body’s regulation of motion, leading to Parkinson’s like symptoms such as facial tics and twitches, known as tardive dyskinesia. If these symptoms are not caught early and medication dosages are not adjusted to alleviate them, the symptoms often become permanent and irreversible.
2. Protection of Prisoners on Psychotropic Medications from Heat Injury
75. All psychotropic medications change the body’s ability to manage temperature, and can lead to a runaway increase in body temperature that can result in organ failure or death. Patients on such medications can be permanently injured or killed if exposed to temperatures that would not be harmful to persons not on such medication. In prison systems, where prisoners do not have control over their environment and where prisons are often located in hot climates, it is essential to identify the patients who are on heat sensitive medications and to employ a protocol to address such patients’ exposure to excessive heat. I have reviewed the NDCS policies contained in Exhibit 2, and the deposition testimony of Dr. Deol, and believe that NDCS' failure to adopt any policy regarding this issue to be relevant for several reasons.
76. First, the lack of any existing policy indicates NDCS would likely fail to take proper prophylactic action to protect prisoners from heat injury. Heat sensitivity is a predictable side effect of all commonly-used psychotropic medications, and prisoners prescribed those medications should be uniformly and proactively protected from heat, without first requiring that they exhibit dangerous clinical signs such as hyperthermia, hypotension, or confusion before NDCS staff refer a prisoner to medical staff.

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77. During hotter months in Nebraska, which consistently bring high

temperatures and high levels of humidity, there is a significant risk that prisoners on

psychotropic medications will be exposed to dangerous levels of heat unless NDCS takes

proactive measures to prevent it. An effective policy would consider this risk and ensure

that prisoners on psychotropic medications are protected from dangerous heat levels in

both their housing units and in other areas within NDCS facilities in which they spend

any significant amount of time. It is my understanding that NDCS has no policy

specifying temperature limits for areas housing these prisoners, despite the fact that

NDCS is aware of and keeps a master list of every individual receiving these

medications. (DEOL 174; 262.) NDCS' indifference to the well-being of these inmates

exposes them to an unnecessary risk of significant harm.

G. ISOLATED CONFINEMENT 78. NDCS uses the term “Restrictive Housing” to refer to housing units in

which prisoners’ access to out of cell time, social contact, and environmental stimuli are

limited. Under the NDCS definition, “Restrictive Housing” refers to “conditions of

confinement that provide limited contact with other offenders, strictly controlled

movement while out of cell, and out of cell time of less than twenty-four hours per

week.” Neb. Rev. Stat. § 83-170(13). This definition tracks the type of conditions usually

considered “solitary confinement” in the literature and in other jurisdictions with which I

am familiar in that it allows for very limited social interaction and environmental stimuli.

Such settings are profoundly damaging to one’s mental health even for prisoners with no

known pre-existing mental illness. For persons who already have serious mental illness,

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such as psychotic disorders and major mood disorders, isolation can be devastating,

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leading to severe deterioration to their mental health, and leading to their self-injurious behavior, or suicide. These facts appear to be well known to NDCS given that NDCS leadership received a report written by the Vera Institute of Justice recommending that, "no one with serious mental illness is placed in any form of restrictive housing that limits meaningful access to social interaction, physical exercise, environmental stimulation and therapeutic programming, in particular do not place these individuals in longer term restrictive housing." (The Safe Alternatives to Segregation Initiative, Findings and Recommendations for the NDCS dated November 1, 2016).
79. During my tours, I visited with, and reviewed medical files of, NDCS inmates at NCCW, LCC, TSCI, and NSP that have a serious mental illness and who resided in restrictive housing. I have also spoken with and reviewed the medical files of Plaintiffs who suffer from serious mental illness and who have resided in restrictive housing. The experiences these individuals have described and displayed — including exacerbation of psychotic symptoms such as paranoia and hallucinations as well as worsening cognitive functioning — are typical of the reactions I would expect from seriously mentally ill persons exposed to these conditions. Moreover, in speaking with NDCS employees within each of these facilities, inmates kept in restrictive housing do not have the same access to mental health programming as their peers in general population. As noted above, Prisoners E and H, exemplify how an inappropriately restrictive housing assignment can directly cause mental decompensation through his worsening mood swings, mania, and mental decompensation.

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H. SUICIDE PREVENTION 80. All of the problems described above increase the risks of self-harm and suicide. During the period from 2001 to 2014, NDCS had a suicide rate of 21 to 100,000 according to a US Department of Justice report.2 This compares to a nationwide rate of 16 per 100,000 for the same period across all state prison systems. According to the Nebraska Inspector General, there were two suicides in 2018, both at TSCI, one of which was in restrictive housing. (OIG Report 2017-2018 at 80-81.) In both of the 2018 suicides, the OIG noted problems with the frequency and completeness of safety checks in the housing units where the prisoners died. Prison systems that rely heavily on restrictive housing, or on cell lockdowns in general population, create unreasonable risks that prisoners confined to their cells for most of the day will decompensate and engage in self-harm or suicide. This is a risk for all prisoners in such systems, both those who have already developed mental illness, and those who have not yet been identified as mentally ill. While NDCS has written suicide prevention policies, the lack of staffing and treatment resources described above make it impossible for such policies to be implemented effectively. III. CONCLUSION 81. Based on the information summarized above, it is my opinion that the current state of mental health care services in NDCS poses a substantial risk of serious harm to prisoners who require mental health care. I have reviewed the declarations and

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2 https://www.bjs.gov/content/pub/pdf/msp0114st.pdf

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medical files of Plaintiffs who have raised mental health claims in this case. In their declarations Plaintiffs describe problems such as delayed access to care, unnecessary decompensation, indifference to their mental health or diagnoses as it relates to restrictive housing assignments, and the lack of timely psychiatric care. These problems are typical and predictable outcomes of the deficiencies I have described above. Given that there is a waxing and waning aspect of mental illness, prisoners with mental illness are likely to intersect with many of these deficiencies throughout their incarceration.
82. While not all NDCS prisoners will be harmed by these deficiencies in exactly the same way, these systemic problems are susceptible to common systemic solutions, including better staffing, development of new policies and procedures, deployment of more treatment space and other resources and a re-evaluation of segregation practices. The problems described above are systemic in nature and require systemic solutions.
83. The NDCS mental health care system appears to be highly centralized on its face, governed by policies of statewide application. However, equally important in understanding the deficiencies within NDCS mental health care system is the disturbing lack of policy, systems, procedures or practice in a variety of areas described herein. This absence of direction given to frontline NDCS employees in these areas, that may have only been on the job for several months, without receiving sufficient training on how to / / / / / / / / /

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UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et al,

Case No. 4:17-cv-03107-RFR-MDN

Plaintiffs, v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al,

CLASS ACTION
EXPERT DECLARATION OF ELDON VAIL IN SUPPORT OF CLASS CERTIFICATION

Defendants.

I, Eldon Vail, declare as follows: 1. This declaration has been prepared at the request of Plaintiffs’ counsel in the above-captioned action regarding their motion for class certification. It is my opinion that Nebraska Department of Correctional Services (NDCS) policies and practices create a substantial risk of harm to all NDCS prisoners in the form of exposure to dangerous segregation (restrictive housing) units. This risk is the result of NDCS policies and practices that are uniformly applied across institutions, and to NDCS’s responses to chronic understaffing and overcrowding across all institutions. The risk of harm is common to all NDCS prisoners, and can be remedied by system-wide changes in the way NDCS manages and staffs its institutions, and in the way it uses segregation (restrictive housing). I. Summary of Qualifications 2. I am a former correctional administrator with 35 years of experience working in and administering adult institutions. Before becoming a corrections administrator, I held various line and supervisory level positions in a number of adult prisons and juvenile facilities in the State of Washington. I have served as the Superintendent (Warden) of three adult institutions,

4:17-cv-03107-RFR-MDN Doc # 249-47 Filed: 02/19/19 Page 2 of 40 - Page ID # 11184
including facilities that housed maximum, medium and minimum-security prisoners. Two of those facilities housed men and one housed women.
3. I served for seven years as the Deputy Secretary for the Washington State Department of Corrections (WDOC), responsible for the operation of prisons and community corrections. I briefly retired, but was asked by former Governor of Washington, Chris Gregoire, to come out of retirement to serve as the Secretary of the Department of Corrections in the fall of 2007. I served as the Secretary for four years, until I again retired in 2011. In sum, I served for a total of eleven years in the top one or two positions over the agency.
4. As a Superintendent, Assistant Director of Prisons, Assistant Deputy Secretary, Deputy Secretary, and Secretary, I was progressively responsible for the safe and secure operations of adult prisons in the State of Washington, a jurisdiction that saw and continues to see a significant downward trend in prison violence. In the last fifteen years in the WDOC, violent incidents have decreased over 30%, due in part to improved treatment of the mentally ill and reduced use of segregation. When I became Secretary the rate of violent infractions throughout the prison system was 1.23 events per 100 prisoners. When I left it was 0.66 per 100 prisoners, a 46% reduction in 4 years.
5. My experience as a prison and corrections administrator included responsibility for, and a focus on, the mentally ill population and their custody, housing, and treatment. As a Superintendent, as an Assistant Director of Prisons, as Deputy Secretary and later as Secretary, I continued to focus on providing proper treatment for the mentally ill in prison on a system-wide basis. My opinions are based upon my substantial experience running correctional institutions and presiding over a statewide prison system for more than a decade, a system that successfully addressed the challenge created by the rapid influx of the mentally ill into the prison environment. In my thirty-five years of work in corrections as a practitioner, I spent considerable
2

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time working to provide for the proper custody and care of the mentally ill sentenced to prison. I
am experienced in sound correctional practice.
6. Since my retirement I have served as an expert witness and correctional
consultant for cases and disputes over 50 times in multiple jurisdictions—state, local and federal.
As an expert witness and correctional consultant, I have been retained to evaluate and offer my
opinions on a variety of issues in the correctional environment.
7. Specifically, over the last few years, I have testified in the following cases:
Coleman, et al. v. Brown, et al. No. 2:90-cv-0520 LKK JMP P United State District Court, Eastern District of California, Testified, October 1, 2, 17 and 18, 2013
Graves v. Arpaio No. CV-77-00479-PHX-NVW, United States District Court of Arizona Testified, March 5, 2014
Corbett v. Branker No. 5:13 CT-3201-BO United States District Court, Eastern District of North Carolina, Western District Special Master appointment November 18, 2013 Testified, March 21, 2014
C.B., et al. v. Walnut Grove Correctional Authority, et al. No. 3:10-cv-663 DPS-FKB, United States District Court for the Southern District of Mississippi, Jackson Division Testified, April 1, 2 and 27, 2015
Fontano v. Godinez No. 3:12-cv-3042 United States District Court, Central District of Illinois, Springfield Division Testified June 29, 2016
Doe v. Kelly Case 4:15-cv-00250-DCB United States District Court for the District of Arizona Testified, November 14, 2016
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Braggs, et al. v. Dunn, et al. No. 2:14-cv-00601-WKW-TFM United States District Court, Middle District of Alabama Testified, December 22, 2016, January 4, 2017, February 21, 2017 and December 5, 2017
Wright v. Annucci, et al. No. 13-CV-0564 (MAD)(ATB) United States District Court, Northern District of New York Testified, February 13, 2017
Padilla v. Beard, et al. Case 2:14- at-00575 United States District Court, Eastern District of California, Sacramento Division Testified April 19, 2017
Cole v. Livingston Civil Action No. 4:14-cv-1698 United States District Court, Southern District of Texas, Houston Division Testified, June 20, 2017
Holbron v. Espinda Civil No. 16-1-0692-04 RAN Circuit Court of the First Circuit, State of Hawai’i Testified, December 20, 2017
Dockery v. Hall No. 3:13-cv-326 TSL JMR United States District Court for the Southern District of Mississippi, Jackson Division Testified March 5-7, 2018
8. Several of these cases involved issues similar to the current Sabata litigation,
specifically overcrowding and/or understaffing. These cases are Braggs v. Dunn (Alabama),
Coleman v. Brown (California), C.B v. Walnut Grove and Dockery v. Hall (Mississippi).
9. Other cases1 relevant to Sabata from my prior expert and consulting work focused
on the overuse of segregation and the treatment of the mentally ill or prisoners with disabilities.
Some of these cases are Coleman v. Brown, Padilla v. Beard and Asker v. Governor of the State
1 Some of these cases involved trial testimony, others involved expert or consultant reports.
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of California (California); Graves v. Arpaio (Maricopa County in Arizona); C.B. v Walnut Grove and Dockery v. Hall (Mississippi); Parsons v. Ryan (Arizona); Peoples v. Fischer and Wright v. Annucci (New York); Commonwealth of Virginia and Latson v. Clarke (Virginia); Rasho v. Godinez and Davis v. Baldwin (Illinois); Community Legal Aid Society Inc. v. Robert M. Coupe (Delaware); P.D. v. Middlesex County and C-Pod Inmates of Middlesex County Adult Correction Center v. Middlesex County (New Jersey); and, Johnson v. Mason County and Dahl v. Mason County (Washington). Related consulting work has been performed in Georgia for the United States Department of Justice and for Sacramento County in California on behalf of the county sheriff.
10. A complete copy of my resume, detailing my work experience as a practitioner is attached as Exhibit 1.
11. I have been asked by Plaintiffs’ counsel to offer my opinions on the effects of overcrowding and understaffing in the Nebraska Department of Correctional Services (NDCS), and on whether or not the overcrowding and understaffing at NDCS impact and/or create dangerous conditions for their prisoner population.
12. I have previously authored a declaration in this case on the Nebraska Department of Correctional Services’ grievance system dated August 24, 2018. In that report I opined there were “fundamental flaws”2 in the NDCS grievance system and further detailed my concerns in that report. II. Bases for My Opinions
13. I have reviewed a large variety of documents in preparation for this report. Those documents include multiple NDCS policies and their updates over several years, reports from the Nebraska Ombudsman, the Office of the Inspector General of the Nebraska Correctional System
2 Declaration of Eldon Vail, Aug. 24, 2018 (Filing No. 160-35) ¶ 10.
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(OIG), and the Nebraska legislature, documents related to the physical plants and capacity of Nebraska prisons, deposition transcripts, and the files of named plaintiffs, and a number of other documents. A list of the materials I reviewed is attached to this report as Exhibit 2.
14. I also rely on my own substantial experience as a correctional administrator, including presiding over a statewide prison system for more than a decade, and my knowledge of other prison systems that I gained during my career in corrections and as a consultant and expert witness.
15. My work on this matter is ongoing and my opinions are partial and preliminary, based on the available information I have reviewed to date. It is my understanding that additional documents and information will be forthcoming during the course of this litigation, and that a number of relevant documents requested by Plaintiffs’ counsel have yet to be produced. Based on the information I have reviewed, I am confident in the preliminary opinions contained in this declaration. I anticipate however that these opinions will be further developed and supplemented as more information becomes available. III. Summary of Opinions
16. Prison overcrowding is clearly to a point of perpetual crisis in Nebraska prisons. This has been known for at least two decades yet no efforts to significantly impact the prison population have been accomplished. As of this writing, according to NDCS Director Scott Frakes, the current overcrowding level in the NDCS is at about 162%. There is a direct impact between overcrowding and prison safety, a fact well known by experienced corrections administrators and documented in the available research.
17. The Nebraska prison system suffers from chronic understaffing. Combined with their level of overcrowding, this exacerbates the risks for the prisoners when too few staff are
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available to supervise the number of persons incarcerated and creates even more dangerous conditions for the prisoner population than overcrowding does alone.
18. Due to the combined impacts of overcrowding and understaffing, the NDCS over relies on segregation to control their prisoners, including the dangerous practice of double bunking prisoners in segregation cells designed to house only one person. The overuse of segregation results in extreme social isolation and hardship that are both unnecessary and counterproductive to good prison security, and is harmful for all prisoners. IV. Opinions
A. Nebraska Prisons Are Severely Overcrowded 19. According to the latest NDCS Quarterly Data Sheet for October – December 2018, the NDCS has 5,358 prisoners in its custody, but its prisons are only designed to house 3,375 prisoners, meaning that they were operating at 158.75% of their design capacity, with 1,983 more prisoners than the system was designed to house.3 More recently, as NDCS Director Frakes reported in January of 2019, NDCS is at about 162% of its design capacity.4 The Inspector General of the Nebraska Correctional System identifies Nebraska as one of the most overpopulated prison systems in the United States; in 2017, only Alabama was operating at a higher level of its design capacity.5 There appears to be no end or relief in sight for the prisoners or the staff in Nebraska prisons.
3 NDCS Quarterly Data Sheet, October-December 2018, page 1. 4 Paul Hammel, Frakes Doesn’t Think Nebraska Prisons Will Meet Deadline to Ease Crowding, Omaha World-Herald (Jan. 19, 2019), available at https://www.omaha.com/news/nebraska/frakes-doesn-t-think-nebraska-prisons-will-meetdeadlineto/article_1d7297f9-827b-5cf4-b178-4a1815e60824.html 5 Office of Inspector General of the Nebraska Correctional System 2017/2018 Annual Report (OIG 2017/2018 Annual Report), page 38.
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20. In its population data, NDCS tracks both the population percentage in comparison to the “design capacity” and “operational capacity” of its prisons. The United States Department of Justice, Bureau of Justice Statistics (BJS) defines “design capacity” as the number of prisoners that the planners or architects intended for the correctional facility, and “operational capacity” as the number of prisoners that can be accommodated based on a facility’s staff, existing programs, and services. In my opinion, the design capacity is the relevant measure to assess the degree to which a prison system is overcrowded, as it provides a clear and objective standard to measure against the prisoner population: the actual number of people that the correctional facilities that make up the prison system were designed and built to serve. By contrast, the use of “operational capacity” is often suspect. Here, NDCS testified that the operational capacity was determined for each prison as part of its 2014 master plan, and has not been updated since.6 Operational capacity is defined based in part on program availability and facility staffing, both of which are well-documented shortfalls in the NDCS system that have only gotten worse since the 2014 master plan was completed, as discussed below, making the out-of-date operational capacity estimates more suspect. For these reasons, this report focuses on design capacity as the important measure of the scope overcrowding of Nebraska’s prison system.
21. Seven out of ten NDCS facilities are operating at over 150% of their design capacity, and five out of ten are overcrowded at levels well beyond the total level of overcrowding existing throughout the entire Nebraska prison system, including prisons with a diversity of missions serving different types of prisoner populations: the Work Ethic Camp (WEC), which houses minimum security male prisoners, is operating at 173% of its design capacity; the Nebraska State Penitentiary (NSP), a maximum, medium, and minimum security
6 Transcript of Rule 30(b)(6) Deposition of Diane Sabatka-Rine (Dec. 14, 2018) (Sabatka-Rine Depo.) at 102:4-105:19.
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facility for male prisoners, is operating at 187.46%; the Community Correctional Center-Omaha (CCC-O), a community-based facility that houses male prisoners eligible for work detail or work release, is operating at 188.88%; the Omaha Correctional Center (OCC), a medium and minimum security facility for male prisoners, is operating at 196.96%; and the Diagnostic & Evaluation Center (DEC), which is the reception center for all male prisoners (adults and juveniles) brought into the custody of the Nebraska prison system, and also includes a skilled nursing facility, is operating at an astonishing 336.25% of its design capacity.7
22. Reception and intake facilities like DEC perform screening and classification functions that are vital to the safety of prisoners and staff. Allowing such facilities to become as crowded as NDCS has creates unreasonable risks of harm as it overburdens the staff responsible for making classification and placement decisions that carry through the prisoner’s entire term.
23. Nebraska has added some beds in recent years but not enough to stem the rising rate of overcrowding or to begin to approach the need for beds identified by NDCS’s 2014 master plan, which recommended that 1,622 beds be constructed between 2014 and 2024.8 According to the OIG’s 2017/2018 Annual Report, NDCS added 100 beds through construction of a dormitory that was completed in September 2017, and construction was in progress to add an additional 160-bed unit to house female prisoners.9 Other increases in beds have been proposed by Director Frakes to the legislature for 2019-2021,10 but it remains to be seen if they
7 NDCS Quarterly Data Sheet, October-December 2018, page 1. 8 NDCS 2014 Master Plan Report, Oct. 27, 2014 (2014 Master Plan) at Ch. 4-5, page 133, available at https://www.corrections.nebraska.gov/sites/default/files/files/46/2014_ndcs_master_plan_final_r eport_reduced_2.pdf. 9 OIG 2017/2018 Annual Report, page 47. 10 NDCS 2019-2021 Biennial Budget Request, Capital Construction and Building Renewal Budget Request, Sept. 14, 2018), available at https://das-nebs.ne.gov/public/faces/brdIndex.jsp.
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are actually funded or more importantly, even built. The recent proposals only add another 64 beds to DEC (increasing its design capacity from 160 to 224),11 and another 100 beds to NSP (increasing its design capacity from 718 to 818).12 Even if these construction projects were already funded and completed, and the proposed new beds were all being used to house prisoners, NSP and DEC would still be dangerously overcrowded: NSP would be operating at greater than 164% and DEC would be at more than 240% of design capacity.13 Adding capacity of only 164 beds will not come close to meeting the current shortfall, with the most recent data showing NDCS is holding 1,983 more prisoners than the system is designed to house.14
24. The efforts of the authorities to address overcrowding in Nebraska are a far cry from meeting the need and reducing overcrowding in their prison system. Without construction of many more beds and/or a significant reduction in the prison population, Nebraska prisons are poised to continue to suffer the dangerous effects from severe overcrowding for decades.
25. As the prison population increased in states across the country in the 1980’s and 1990’s most states felt the pressure to incarcerate more persons in existing facilities. New prisons cost a lot of money to build and to operate and in many jurisdictions elected officials pressured departments of corrections to explain why adding bunks to existing cells and dormitories was not an effective, lower cost solution. My own experience with crowding as a practitioner in Washington State paralleled this tension. We were forced by legislators and their budget writers to explain why we could not simply house more people in existing prisons and avoid building new ones. This tension and political debate was ongoing for several years. We were pushed to
11 Ibid, page 7 (NDCS 081891). 12 Ibid, page 13 (NDCS 081897). 13 NDCS Quarterly Data Sheet, October-December 2018, page 1. 14 Ibid.
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define capacity so that elected officials could plan and budget for the future. Finally, agency administrators compromised with elected officials and we agreed that we could not operate beyond 105% of capacity. If we reached that point, action needed to occur, either to reduce the prison population, build new prisons or rent beds in other, out of state jurisdictions. We exercised all of those options and avoided long term overcrowding in our prison facilities.
26. Overcrowding is not inevitable. Responsible officials must take action in order to avoid the dangerous conditions well known to be associated with prison overcrowding.
B. Impacts of Overcrowding 27. The severely overcrowded conditions of NDCS make Nebraska’s prisons unsafe for staff and prisoners. This reality is clearly recognized by state officials. As far back as 1989, the NDCS Director at the time, Frank Gunter, explained to the state legislature the dangers inherent in overcrowding at a time when the prison system was at 138% of its design capacity.15 Director Gunter testified that “when the prison population exceeds capacity, [prison administrators’] ability to manage the prisoner population begins to erode,” creating “an increasing level of stress for both inmates and staff,” and as staffing becomes inadequate to manage the overcrowded conditions, it “ultimately means less control of the prisoner population,” which increases disciplinary actions and “potential violence.”16 In my opinion, Director Gunter’s testimony accurately describes the risks of operating an overcrowded prison system, and his warnings apply even more so today as the Nebraska prison system has become far more overcrowded than it was in 1989.
15 Office of Inspector General of the Nebraska Correctional System 2016/2017 Annual Report (OIG 2016/2017 Annual Report), Attachment 58, page 18. 16 OIG 2016/2017 Annual Report, Attachment 58, pages 2-3.
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28. Overcrowding makes prisons more violent and more dangerous for both the staff and for the prisoners, which in turn puts additional strain on the prison’s health care system. In my own experience, the overall violence and risk of disturbance is significantly elevated.
29. In 1992, I was appointed the Superintendent of the McNeil Island Corrections Center in Washington. McNeil was a 1,250-bed medium/maximum security facility with a 150bed minimum security unit located outside the secure perimeter of the main facility. At the time I took over the prison, due to overcrowding of the Washington prison system, the minimum security was at approximately 266% of its design capacity, housing about 400 prisoners in a unit designed for 150. As I began to learn the issues that confronted the facility I noticed the extreme number of grievances coming from the minimum unit about the effects on conditions of confinement due to the level of extreme overcrowding. I brought the issue to the attention of my superiors in our central office and they explained to me that the overall crowding in the Washington prison system was so profound at the time that they saw temporary overcrowding of the minimum facility on McNeil as an issue of concern for them as well but also one of the only places where they believed they could safely house some of the excess population. They were wrong. On the Friday night before Labor Day in 1992, a fight among racial groups escalated into a full-scale riot that caused staff to abandon their posts for their own safety. The result was the death by stabbing of one prisoner and several others being injured, and a unit that was out of control until dawn of the next morning. Regaining control of the unit required the help of emergency response teams from two other prisons and the Washington State Patrol. Shortly thereafter, the population of the minimum security unit was reduced to its design capacity. We had no similar events until the day the prison closed two decades later. We determined in our review that the “flash-point” for the riot was competition for access to recreation facilities (the weight pile), a conflict typical of an overcrowded prison. Overcrowded prisons, even at the
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minimum security level, are more likely to explode than prisons that do not exceed the number
of prisoners they were designed to hold.
30. The link between overcrowding and rising levels of prison violence is widely
recognized by researchers throughout the field. Dr. Craig Haney,17 a psychologist and professor
at the University of California at Santa Cruz, has written extensively on the impacts of
overcrowding in prisons. In 2006, he published an article entitled The Wages of Overcrowding
that summarizes much of the then-current research on overcrowded prisons.18 Several examples
from his paper inform the discussion about the severe overcrowding and the resultant danger to
prisoners in Nebraska’s prisons. First, he notes:
…[w]here crowded conditions are chronic rather than temporary…there is a clear association between restrictions on personal space and the occurrence of disciplinary violations.19 Second, he states:
…overcrowding means that there is less for prisoners to do, fewer outlets to release the resulting tension, a decreased staff capacity to identify prisoner problems, and fewer ways to solve them when they do occur…[Therefore,] overcrowded conditions in which prisoners have a significant idle time can contribute to a higher level of prison rapes.20 31. As far back as 1980 scholars studying overcrowding in six federal prisons
concluded that:
The findings were generally consistent across all institutions and inmate populations. The basic finding, which confirms common sense, is that there is a progressive and measurable increase in
17 Dr. Haney is an expert in this case. I have worked with him in California, New York, Illinois and Arizona. He is widely recognized as an expert on the impacts on behavior caused by overcrowding prison conditions, as well as the harmful effects of isolation. 18 Haney, Craig, The Wages of Overcrowding, Washington University Journal of Law & Policy, Volume 22, January 2006. 19 Ibid, page 272. 20 Ibid, page 276.
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negative effects with an increase in housing density.21 High degrees of sustained crowding have a wide variety of negative psychological and physiological effects including increased illness complaint rates, higher death and suicide rates, and higher disciplinary infraction rates.22 32. These same scholars, studying overcrowding in the Texas and Oklahoma prison systems found that: In Texas, the rate of suicides, violent deaths, disciplinary incidents, natural deaths for “elderly” (age 50 or more) inmates, increased beyond statistical expectancies.23 Over a ten-year period total population in the Texas Department of Corrections increased sharply while facilities increased only slightly. Death rates, suicide rates and disciplinary rates rose even more sharply than population. In the Oklahoma system when population dropped there was an even greater drop in rates of death due to violence. These results confirm earlier findings from Illinois.24 33. This is only a sample of the available research. Experienced correctional administrators are well aware of the risks to both the staff and prisoners of overcrowding prisons. The historic, current and potential future level of crowding in Nebraska’s prison system, based on the available research and my decades of experience, increases the level of danger for all persons in Nebraska’s prisons. 34. Nebraska’s own 2014 master plan identified what they call “operational stress” as a result of prison overcrowding, which they observed at NDCS facilities at a time when the Nebraska prison system was operating at 148% of design capacity:25 a. “Inmates sleeping on movable cots in dayrooms at DEC.”
21 The Effect of Prison Crowding on Inmate Behavior, McCain, Cox and Paulus, U.S. Department of Justice, National Institute of Justice, December, 1980, page iv. 22 Ibid, page 1. 23 Ibid, page vi. 24 Ibid, pages 128-129. 25 2014 Master Plan at Ch. 1-10, page 22.
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b. “Very long meal periods and/or very short meal shifts, or both – i.e. lunch which extends from beyond 10:00 am to 2:00 pm or lunch shifts which only last 15 minutes per group.”
c. “Shorter periods of short-term disciplinary housing due to a lack of RESd capacity.”
d. “Converting GP housing units to RESd units due to lack of sufficient RESd space for the ADP of a facility.”
e. “HVAC systems which cannot keep up with the air circulation required, so run continually or which maintain conditions at uncomfortable levels.”
f. “Fans which run continually, such as the shower fan to exhaust humidity in Housing Unit K of OCC.”
g. “Housing intake inmates long-term in infirmary or other special housing due to lack of appropriate GP options.”
h. “Equipment which breaks down more frequently than anticipated (water heaters, dishwashers, ovens, etc.) due to excessive use or prematurely short Estimated Useful Life.”
i. “Lack of available meeting or other group space due to overutilization of limited existing meeting spaces.”26
35. The OIG’s 2015/2016 Annual Report documented the impact of overcrowding (and understaffing) on the ability of NDCS to keep up with off-site medical appointments.
NDCS is unable to keep up with travel orders related to medical consult requests despite the efforts of a work group on this issue in 2015 and 2016.27
26 Ibid at Ch. 2-8, page 50. 27 Office of Inspector General of the Nebraska Correctional System 2015/2016 Annual Report
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Not having enough custody staff to be able to transport prisoners to medical appointments is a
dangerous consequence of NDCS’s overcrowding and understaffing crises, as it inevitably puts
prisoners at risk when their access to health care is delayed because there are not enough custody
staff to meet the minimum staffing requirements to supervise the facility and also be able to
transport prisoners to medical appointments. 36. Dr. Bruce Gage,28 after conducting a review of behavioral health for NDCS,
documented his concerns with mental health treatment due to overcrowding:
Movement out of the residential units can be difficult to effect owing to overcrowding in general population.29 Being able to promptly open space for those with more acute [mental health] needs, without having to place them in highly secure settings when unneeded, is a critical need…. Overcrowding makes it very difficult to have the flexibility that is needed to move inmates promptly, preventing efficient use of beds.30 Conditions such as crowding, violence, and limited direct oversight by correctional staff are particularly notable in terms of the likelihood of leading to mental health decompensation.31 37. In my experience prisoners who suffer from mental illness are less equipped to
handle the stresses of overcrowding. As Dr. Gage says, the lack of direct oversight of prisoners
by correctional staff makes it more difficult to detect prisoners who may be decompensating or
experiencing other difficulties due to the stresses of overcrowding. Not being able to move
(OIG 2015/2016 Annual Report), page 8, available at https://nebraskalegislature.gov/FloorDocs/104/PDF/Agencies/Inspector_General_of_the_Nebras ka_Correctional_System/600_20160915-141014.pdf. 28 Dr. Gage was my Chief Psychiatrist when I was the Secretary of the Washington Department of Corrections. 29 NDCS Behavioral Health Needs Assessment (Dec. 2015), page 26, available at https://nebraskalegislature.gov/FloorDocs/104/PDF/Agencies/Correctional_Services__Departme nt_of/558_20151231-152218.pdf. 30 Ibid, page 39. 31 Ibid, page 36.
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prisoners in and out of residential or treatment units in a timely manner also means that sometimes, necessary mental health treatment is delayed.
38. There is no question that Nebraska prisons are overcrowded and that authorities are aware of the risks that creates for prisoners and staff, starting with the 1989 comments from Director Gunter and continuing in the more recent reports from the OIG.
C. Chronic Understaffing 39. The severe overcrowding in Nebraska’s prison system and the challenges it presents are exacerbated by the chronic and ongoing understaffing crisis due to high staff turnover and vacancies. The result is that there are too few staff are available to safely supervise the number of persons incarcerated, creating even more dangerous conditions for the prisoner population than overcrowding does alone. 40. The Commissioner of the Alabama Department of Corrections (ADOC) is Jefferson Dunn. In 2016 he wrote an editorial that said, in part:
The APTI32 is an ambitious plan designed to address ADOC's two main critical problems: overcrowding and understaffing. This twoheaded monster hinders not only the department’s ability to provide a reasonable level of safety and security for our staff and inmates, but also it prevents us from offering proven and effective rehabilitation services to the thousands of inmates who transition back into our communities every year. These services represent our best opportunity to help inmates become successful, law-abiding, contributing members of society.33 41. This honest assessment by Commissioner Dunn fits the current state of the Nebraska prison system as well. Like Alabama, the “two-headed monster” of overcrowding and understaffing parallels the Nebraska prison system. Alabama is the most overcrowded prison system in the country and Nebraska is now the second most overcrowded system, according to
32 APTI is the Alabama Prison Transition Initiative, a plan to re-build Alabama’s prison system. 33 https://www.al.com/opinion/index.ssf/2016/04/department_of_corrections_comm.html
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the latest information I have seen.34 I have been involved with the Alabama prison system since
August 2014. I have also worked in California when its prison system was severely overcrowded
but they never had the “two-headed monster” challenge faced by Alabama and Nebraska, as they
always had sufficient staffing, which makes an enormous difference in the ability to manage an
overcrowded prison system.
42. Nebraska authorities have expressed their own concerns about the “two-headed
monster” of overcrowding and understaffing described above. The NDCS Special Investigative
Committee reported to the legislature in December 2016:
The Department is caught in a vicious cycle that is driven by noncompetitive wages and overcrowded prison facilities resulting in large-scale staff vacancies, staff shortages, and an extreme employee turnover rate causing staff to perform duties for which they were not hired and management to resort to the use of excessive mandatory overtime all of which is inhibiting the ability to provide even minimal programming leaving inmates idle and crammed into facilities that are not large enough to hold their numbers which seriously jeopardizes the safety of staff and inmates.35
43. The OIG has also expressed concern about understaffing in NDCS for several
years. The OIG’s 2015/2016 Annual Report says:
The staffing issues facing NDCS have long been obvious. While the Tecumseh State Correctional Institution (TSCI) was receiving the most attention due to the riot that took place on Mother’s Day in 2015, other facilities and parts of the system were also facing significant staffing challenges[.] Such staffing challenges impact the entire system, including safety and security, treatment and programs for inmates, reentry efforts, and even the ability to carry out a travel order.
34 OIG 2017/2018 Annual Report, page 38. 35 Department of Correctional Services Special Investigative Committee LR34: Report to the Legislature, Dec. 22, 2016 (Special Investigative Committee 2016 Report), page 11, available at https://nebraskalegislature.gov/pdf/reports/committee/select_special/lr34_2015/lr34_report.pdf.
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In short: NDSC is in a staffing crisis.36 44. The OIG’s 2015/2016 Annual Report goes on to analyze the problem of short staffing in more detail, explaining that the need for overtime for 2016 increased more than 31% when compared to 2014.37 This is a dramatic increase likely to lead to decreased staff morale and additional job related stress. 45. The OIG’s 2015/2016 Annual Report also documents the problem of staff turnover in 2016, saying,
Turnover rates for protective services employees38 increased for at least five straight years before 2016 and are projected to increase again this year.39 Prisons operate successfully based on the stability of tradition and culture of each individual facility. High rates of turnover and excessive overtime create instability in prison operation, which is antithetical to good prison security. 46. This is contrary to what NDCS hoped to see happen with their turnover rate. In 2015 NDCS said: Organizations typically view turnover rates of 12-15% as a healthy and normal part of business operations. Turnover levels in excess of 15%, however, may indicate instability and create management difficulties. Over the past 5 years, NDCS has maintained an agency wide turnover rate of 18.5% or higher. The turnover issue is particularly troublesome among security staff positions, with turnover rates of over 28% in FY 15 and slightly higher so far this fiscal year. In order to combat this issue, NDCS is focusing its
36 OIG 2015/2016 Annual Report, page 14. 37 Ibid. The OIG did not use 2015 overtime data for this comparison because of the increased use of overtime that year as a result of the May 10, 2015 riot at TSCI. 38 NDCS refers to custody staff (correctional officers, corporals, sergeants, etc.) as “protective services.” 39 OIG 2015/2016 Annual Report, page 15.
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efforts on reducing turnover among key security and unit staff with a target of reducing it to 28% or lower by the end of FY 2016.40 47. The turnover rate for one institution, TSCI, was reported by the OIG to be nearly 70% from January 1, 2015 to January 1, 2016.41 That is an astronomical rate of turnover at an individual prison. Such turnover would create great risk for the prisoners housed at that facility. In my experience, working the floor in the prison is not the right employment for everyone. Prisons rely on experienced employees to teach and coach new employees in how to do the job. With this prison suffering such a high level of turnover it is unlikely there would be sufficient collective wisdom among the staff to help the new officers learn the job and therefore be better prepared to keep the prisoners safe. 48. The May 10, 2015 Mother’s Day riot at TSCI is the type of dangerous incident that is significantly more likely to happen because of NDCS’s severe staffing shortages and high staff turnover rates. During this incident, NDCS lost control of significant portions of TSCI for more than ten hours when several hundred prisoners rioted, assaulting staff, setting fires and demolishing walls in one of the housing units, and resulting in the death of two prisoners.42 TSCI was at more than 106% of its design capacity at the time of the riot, housing 1,024 prisoners at a facility designed for 960.43 The Nebraska Ombudsman’s Report on the disturbance concluded
40 NDCS LB 657 Mandatory Overtime Reduction Report (2016), page 3, available at https://nebraskalegislature.gov/FloorDocs/104/PDF/Agencies/Correctional_Services__Departme nt_of/559_20151231-152325.pdf. 41 OIG 2015/2016 Annual Report, page 15. 42 Ombudsman’s Report: The Mother’s Day Riot at the Tecumseh State Correctional Institution, Oct. 20, 2015 (Ombudsman’s Report on TSCI Mother’s Day Riot), page 1, available at https://nebraskalegislature.gov/pdf/reports/public_counsel/2015ombud_tsc_riot.pdf; see also Tomas Fithian, A Critical Incident Review of the Events Surrounding the Inmate Disturbance on May 10-11, 2015, June 2015 (Fithian Report), page 4, available at https://bloximages.newyork1.vip.townnews.com/kmaland.com/content/tncms/assets/v3/editorial/ 5/f0/5f0ceb4a-1f53-11e5-a516-8b3e751c60d9/5592dbcacfc63.pdf.pdf. 43 Fithian Report, page 3.
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that TSCI’s staffing shortage was also a contributing factor: the total number of staff on duty at the time the riot began was 57, “four employees short” of TSCI’s minimum staffing requirement to run the facility, and of those, 9 were working overtime.44 Moreover, due to high staff turnover rates, out of more than 210 custody staff employed at TSCI at the time, over 35% had less than two years of experience.45 The Ombudsman concluded that TSCI’s high rate of turnover and understaffing meant that the staff lacked sufficient experience and did not have the opportunity to learn to work together as team, and that TSCI had a “dependence on mandatory overtime to fill staffing gaps,” which “can lead to a situation where some of the staff are performing at less than peak capacity because they are in the twelfth hour on the job without a rest.”46
49. I agree with the Ombudsman’s conclusions about how the staffing crisis and high turnover rates made it more likely that this riot would take place and that TSCI staff would lose control for an extended period. The overcrowded and understaffed conditions at TSCI that helped spark the Mother’s Day riot are similar what I experienced at McNeil Island Corrections Center in 1992 during the Labor Day riot, discussed earlier. Another similarity was the level of idleness at both prisons. At McNeil, we did not have enough work or educational assignments to keep a majority of the prisoners productively occupied. The Fithian Report on the riot at TSCI stated that, “several prisoners have a large amount of time during the day where they are not participating in meaningful activities, such as programming or idleness reducing activities,” and recommended that TSCI “explore ways to increase the amount of programming and idleness reducing activities available[.]”47 Both facilities also had a troubled grievance system. As I said
44 Ombudsman’s Report on TSCI Mother’s Day Riot, pages 31-32. 45 Ibid, page 32. 46 Ibid, pages 33-34. 47 Fithian Report, page 28.
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above about McNeil, we were seeing an enormous amount of grievances regarding the conditions of confinement coming out of the minimum security housing unit and we were not able to facilitate a positive response. According to the Ombudsman, at TSCI, “the intent (of certainly some, and possibly the majority of inmates in the main yard on May 10) was to use the event as a way of raising and dramatizing inmates’ collective grievances.”48
50. After the riot at McNeil, we addressed the overcrowding and understaffing by reducing the population to its design capacity, and had no similar disturbances for the next two decades until the facility was closed in 2011. By contrast, NDCS did not address the staff shortages and high turnover rate at TSCI and, less than two years later, on March 2, 2017, there was another riot at TSCI where prisoners took control over part of a housing unit for more than nine hours, resulting in the death of two prisoners.49 The Critical Incident Review on the March 2017 riot concluded that “TSCI is a correctional facility that is bordering on a crisis condition where staff and inmates both expressed concerns about the safety and the control of the facility,” with staff turnover reaching the point where “20% of all positions were staffed by individuals with less than one year of experience and over half of the staff had between one and five years of experience.”50 The OIG’s 2016/2017 Annual Report concluded that TSCI “still remains in a type of emergency situation due to the number of staff vacancies and as a result protective service employees work 12 hour shifts. This has been going on since May 2015.”51 TSCI’s Warden stated in August 2017 that “staffing is as bad as it has ever been.”52 The statewide staffing
48 Ombudsman’s Report on TSCI Mother’s Day Riot, page 8. 49 OIG 2016/2017 Annual Report, page 66, available at https://nebraskalegislature.gov/pdf/reports/public_counsel/2017_oig-ncs.pdf. 50 Ibid. 51 Ibid, page 69. 52 Ibid.
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problems also continued into 2017. The Inspector General for Corrections informed the

Nebraska legislature in March 2017 of “significant increases” in overtime for protective services

workers and that 2016 “was an all-time high for staff turnover within the Department.”53

51. The OIG’s 2017/2018 Annual Report documented the ongoing chronic staffing

problem. The OIG said:

The 2016 Annual Report by the OIG put it bluntly by stating, “NDSC is in a staffing crisis.” The 2016 report found that while recruitment numbers had increased, overtime, staff turnover, and staff vacancies had all increased. The 2017 OIG report had similar findings.54
The same report also found that:



“NDCS overtime has more than doubled in the last four years.”



“NDCS protective services positions experienced the highest turnover in

recent history, if not ever.”



“According to the Nebraska Department Administrative Services, the

turnover rate for all NDCS employees exceeded 30% in 2016 and 2017.”55

52. The OIG’s 2016/2017 Annual Report raised other concerns with dangerously low

staffing. Speaking about TSCI, the OIG said:

The gymnasium has not been staffed with a corporal for a significant length of time so these security measures [conducting searches of areas in the gymnasium and of those entering the gymnasium] are no longer being completed on a consistent basis. As a result, recreation staff are expected to do their duties and the duties of the corporal. This could include monitoring up to 64 individuals at one time. TSCI is now looking at doubling the number of individuals who can be receiving recreation at one time which means that one recreation staff member may supervise up to

53 Inspector General Memo to Appropriations Committee Re: NDCS Data, Mar. 7, 2017 (March 7, 2017 OIG Memo), page 1. 54 OIG 2017/2018 Annual Report, page 13. 55 Ibid, page 7.
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128 individuals at one time. Similar concerns have been expressed in the past regarding the library and kitchen areas.56 Having non-correctional staff regularly supervise prisoners without adequate custody backup
will lead to an increased level of danger to the safety of the prisoners and the staff.
53. The OIG’s 2016/2017 Annual Report also expressed equally important concerns
about the lack of program staff:
TSCI is making attempts to add more programming options for individuals at the facility. Some of these additional programs are run by groups that receive grant funds through the Vocational and Life Skills Program. A program run by the Department that is anticipated to start in January is the Violence Reduction Program. It is a core program that is sorely needed throughout the system yet only a group of 9-12 individuals can currently take the program at the Nebraska State Penitentiary and the program lasts for about one year. There are currently 47 individuals at TSCI who are officially on the waiting list for the program. It is likely that there are more individuals at TSCI in need of the program who have not yet been screened for the program or have refused the program. Despite the commitment to additional programing options, the barrier to more programming at TSCI is the availability of staff.57 This understaffing of program resources necessary to prepare prisoners for eligibility for parole
contributes directly to the level of crowding in the NDCS. If prisoners have not completed the
required programs, their release from prison may well be delayed, which is a focus of the OIG
and the NDCS in several of their reports.
54. The Nebraska Board of Parole chairperson confirms multiple times in her
deposition that some prisoners must complete required programs before they can be paroled.58
This is most strikingly illustrated in the Board of Parole’s 2018 annual report, where it is
56 OIG 2016/2017 Annual Report, Attachment 44, page 1. 57 Ibid, Attachment 44, pages 1-2. 58 Transcript of Rule 30(b)(6) Deposition of Rosalyn Cotton (Dec. 4, 2018) (Cotton Depo.) at 48:13-21, 51:16-52:9, 124:3-12, 127:3-12, 130:17-131:16.
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indicated that 1,766 prisoners had parole hearings delayed because “Continued Correctional Treatment is Needed.”59 NDCS offers six programs which can be required to be considered for parole and, as of June 2018, there were 1,380 prisoners on waitlists for these programs, 147 of whom had passed their parole eligibility date but are still waiting to be able to enroll in required programming.60
55. Due to a lack of staffing resources for programs that are required to earn parole, prisoners in the NDCS are staying in prison longer than they would if those programs were available—in effect creating a significant obstacle to reduce the prison overcrowding.
56. It is clear from the documents provided that the NDCS is suffering a crisis in staffing for both “protective services” (custody) staff and program staff. The first makes it much more difficult to manage an overcrowded prison system and the second keeps the system from experiencing some relief because prisoners cannot enroll in and complete programs required for their release from prison. Once again, the “two-headed monster” is an apt description.
57. Adding to the problem of understaffing for the existing protective service positions is the question of whether or not the existing staffing levels are appropriate for safety and security. To the end the NDCS embarked on a custody staffing analysis61 conducted from August 2015 to July of 2016. That staffing analysis62 showed that the current authorized staff for
59 Cotton Depo., Ex. 22, page 12 (Nebraska Board of Parole Annual Report, 2018). 60 NDCS Quarterly Data Sheet, April-June 2018, pages 3-4. 61 A staffing analysis is a set of tools and a process to assess staffing levels for prisons. It takes into account such things as the design of the physical plant, the custody level of the prison population and the program opportunities for the prisoners. 62 The staffing analysis was conducted by NDCS staff but guided by experts from the National Institute of Corrections, some of whom I have worked with previously. I have not conducted a staffing analysis of NDCS’s staffing needs and cannot speak at this time to whether the staffing analysis recommended enough new positions to safely manage the prison system, but it is important to note that NDCS is not close to meeting those targets.
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custody staff was short by 138 positions.63 According to the Special Investigative Committee LR34 December 22, 2016 Report to the Legislature, the staffing analysis initially found that there was a need for 254 new protective services staff positions, but after NDCS Director Frakes reviewed the draft, a revised staffing analysis reduced the need to 138 new positions.64
58. According to the OIG’s 2015/2016 Annual Report: When the NDCS staffing analysis is taken into account, there are over 300 protective services employee vacancies in the system65
59. What this means is that in addition to the high levels of vacancies for the funded protective service positions in NDCS, they were short by 138 positions that were not funded, illustrating the depth of their staffing problems on the custody side. In June 2018, NDCS had 294 vacant positions,66 including about 120 vacancies in the area of protective services,67 which does not include the additional 138 protective services positions that the 2016 staffing analysis identified as necessary (or the additional 254 positions that the staffing analysis initially recommended).68 It is not clear what, if any, concrete actions have been taken to address the shortfall in custody staffing.
60. There has been no attempt as yet to conduct an analysis to determine the need for additional program (non-custody) staff so that prisoners might get access to programs required
63 NDCS Prison Staffing Analysis, Custody Staff, Aug. 2015-July 2016, page 5 (NDCS 246926). 64 Special Investigative Committee 2016 Report, page 8. At this point in my research I cannot account for the basis for this reduction. 65 OIG 2015/2016 Annual Report, page 6. 66 OIG 2017/2018 Annual Report, page 23. 67 2018 Report of the Nebraska Justice System Special Oversight Committee of the Legislature, Dec. 14, 2018 (Nebraska Justice System Special Oversight Committee 2018 Report), page 11, available at https://nebraskalegislature.gov/pdf/reports/committee/select_special/cso/2018_lr127.pdf. 68 Special Investigative Committee 2016 Report, page 8.
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prior to release. As I stated above, this problem directly relates to the problem of overcrowding in the NDCS and an analysis is desperately needed if progress is to be made in this area. According to the Nebraska Justice System Special Oversight Committee’s 2018 Report,
Nebraska statue will now require the Department to conduct a[ system-wide staffing] analysis and provide it to the Legislature in advance of the next biennial budget cycle, with the report required on or before September 15, 2020.69 But just because a report is required in advance of budget preparation, that is no guarantee that the proposal will be funded so that necessary custody staffing levels might finally be established for the NDCS and some relief be provided to the prisoners and the staff. As of this writing, I have seen no indication that such an analysis has been funded or begun. Until it is, one of the primary impediments to reducing overcrowding in the NDCS will remain in place. D. Overuse of Segregation 61. NDCS over relies on segregation70 to control their prisoners, including the illadvised practice of double bunking prisoners in segregation cells designed to house only one person. The overuse of segregation results in extreme social isolation and hardship that are both unnecessary and counterproductive to good prison security, and is harmful for all prisoners. 62. Corrections officials have a dual responsibility. First, to provide for the safety of individual prisoners, taking into account their individual risks and needs. But that responsibility is contrasted by corrections officials’ responsibility to keep everyone safe. If a prisoner’s
69 Nebraska Justice System Special Oversight Committee 2018 Report, page 5. 70 The term “restrictive housing” was coined some years ago to describe what had previously been labeled segregation, solitary confinement or isolation. I prefer the term “segregation” and use it in this declaration, but it is interchangeable with these other terms. In Nebraska, the legislature has defined “restrictive housing” as “conditions of confinement that provide limited contact with other offenders, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week.” Neb. Rev. St. § 83-170(13). This is consistent with the type of conditions I refer to as segregation and that are also referred to as isolation, segregation, or solitary confinement by other prison systems and in academic literature.
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behavior is disruptive to others, those “others” need to be kept safe as well. When prisons suffer from the “two-headed monster” of severe overcrowding and dangerously low staffing levels, my experience is that the prison system will be challenged to maintain basic control of the prisoner population. Short on resources and suffering from severe overcrowding, corrections officials will attempt to compensate by overusing segregation as a means of control. This is not productive because it creates new harms that, perversely, make the institution even harder to control. That is exactly what is happening in the Nebraska prison system.
63. NDCS governs its prison system through a centralized system of Administrative Regulations (ARs) that every facility must follow. While individual facilities may set their own policies, called Operational Memoranda (OM), the OMs must be consistent with the system-wide ARs and, to the extent there is a conflict, the requirements of the system-wide AR controls.71 This centralized organizational structure is typical of correctional systems.
64. The use of segregation, which NDCS refers to as “restrictive housing,” is governed by AR 210.01, which controls placement of prisoners in restrictive housing, the conditions of confinement in all restrictive housing units, and the process for reviewing placement of prisoners in longer-term restrictive housing.72 There are five NDCS facilities with restrictive housing units, each of which are governed by AR 210.01: Lincoln Correctional Center (LCC), NSP, Nebraska Correctional Center for Women (NCCW), Nebraska Correctional Youth Facility (NCYF), and TSCI.73
71 Transcript of Rule 30(b)(6) Deposition of Robert Madsen (Dec. 13, 2018) (Madsen Depo.) at 24:2-25. 72 AR 210.01; Madsen Depo at 22:22-24:1. 73 TSCI and NSP’s OMs implementing the statewide administrative regulation are consistent with AR 210.01, and LCC, NCCW, and NCYF did not issue OMs implementing AR 210.01.
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65. From my own training and experience in the corrections field, I understand what conditions of isolation can do to a person and the negative consequences that often result. NDCS policy allows for very limited out-of-cell time in restrictive housing: only one hour of out-of-cell exercise five days a week and three opportunities per week to shave and shower are required, which may be further restricted to three times per week or less.74 The Nebraska Inspector General has found that “nearly every inmate who is placed in restrictive housing receives an average of less than one hour out of their cell each day.”75 Prisoners held in the restrictive housing units are allowed very limited property76 and, although they are supposed to be allowed to participate in programs once they have been in segregation for 30 days,77 what is actually available to them is mostly programs that a prisoner completes alone in his or her cell.78
66. In my opinion, the overuse of this level of isolation creates a significant risk of causing psychological harm to prisoners. The social isolation and extreme amounts of idle time put great stress on prisoners in segregation, often resulting in hopelessness and anger that can lead to a spiral of behaviors that will keep the prisoners in segregation for longer periods of time, and that make the prisoners more difficult to manage, which is counterproductive to the safety and security of the prison and subjects all prisoners and staff to an increased risk of serious harm.
67. There is broad consensus in the corrections field and in the academic literature that the placement of prisoners in segregation creates a significant risk of harm, for both people who are mentally ill and people without a preexisting mental illness. Dr. Terry Kupers, one of the foremost psychiatric experts on the impact of solitary confinement, has opined on the
74 AR 210.01(XI)(A)(13), AR 210.01(XI)(F). 75 OIG 2017/2018 Annual Report, page 59. 76 AR 210.01 (XI)(D). 77 AR 210.01 (XI)(B). 78 OIG 2017/2018 Annual Report, page 66.
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dangerous effects of segregation on all prisoners, regardless of whether they have preexisting
mental health conditions:
It is predictable that prisoners’ mental state deteriorates in isolation. Human beings require at least some social interaction and productive activities to establish and sustain a sense of identity and to maintain a grasp on reality. In the absence of social interactions, unrealistic ruminations and beliefs cannot be tested in conversation with others, so they build up inside and are transformed into unfocused and irrational thoughts. Disorganized behaviors emerge. Internal impulses linked with anger, fear and other strong emotions grow to overwhelming proportions.79
68. Dr. Haney, a professor from the University of California-Santa Cruz who has
been involved with several landmark cases related to the impacts of segregation has said, based
on the results of several decades of research, that,
There is not a single published study of solitary or supermax-like confinement in which non-voluntary confinement lasting for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects. The damaging effects ranged in severity and included such clinically significant symptoms as hypertension, uncontrollable anger, hallucinations, emotional breakdowns, chronic depression, and suicidal thoughts and behavior.80
69. One of the more recent studies about the risk of suicide comes out of the New
York City jail system. That report found,
[T]hat acts of self-harm were strongly associated with assignment of inmates to solitary confinement. Inmates punished by solitary confinement were approximately 6.9 times as likely to commit acts of self-harm.81
79 Kupers, T., Isolated Confinement: Effective Method for Behavior Change or Punishment for Punishment’s Sake?, The Routledge Handbook of International Crime and Justice Studies (2013), page 5. 80 Haney, C., Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, Crime & Delinquency (2003), page 49. 81 Venters, et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, Research and Practice, American Journal of Public Health, March 2014.
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70. It is clear that placement in segregation is a strong risk factor for suicide. This
does not appear to be known by the top leadership of the NDCS. When asked about the increased
risk of suicide or self-harm for prisoners in segregation during his deposition, Deputy Director of
Prisons Robert Madsen, testifying on behalf of NDCS, said that he did not know.82
71. The NDCS invited the Vera Institute of Justice to help identify how to make
improvements in their use of segregation. Commenting on their assessment of NDCS, the Vera
Institute said:
The Nebraska Department of Correctional Services (NDCS) operates 10 prisons designed to hold 3,275 people. Nebraska has one of the most severely overcrowded systems in the country, however, and has been operating at almost 160 percent capacity (with more than 5,000 people) in recent years. Vera found that 13.9 percent of the population was held in some form of restrictive housing, on average, during a two-year period ending June 30, 2015. About half of these people were in highly restrictive settings where they were kept in their cells for approximately 23 hours a day. The other half were in less-restrictive environments, which placed limits on out-of-cell time but typically allowed for more than one hour per day out of their cells.83
72. Despite NDCS’s efforts to reform their segregation practices, the pressures of
severe overcrowding and chronic understaffing have undermined their efforts. Unfortunately but
unsurprisingly, the number of prisoners held in restrictive housing has continued to increase, and
the number of prisoners held in restrictive housing for more than 180 consecutive days has more
than doubled over the past two years. From the OIG’s 2017-2018 Annual Report:
One of the goals of the restrictive housing changes was to decrease the number of people placed in such a setting. In November 2014, the total number of inmates in restrictive housing units was 319 and the total number of inmates in protective management units was 310. In August 2018 the numbers had increased to 414
82 Madsen Depo. at 96:15-97:21. 83 Vera Institute of Justice, Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems, May 2018, page 11, available at https://www.vera.org/publications/rethinkingrestrictive-housing.
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inmates in restrictive housing units, and 473 inmates in protective management units…. Since the fall of 2016 the number of individuals kept in a restrictive housing unit for at least 180 days has significantly increased as well. In September 2016 there were 62 individuals who had been in a restrictive housing unit for at least 180 days. Earlier this year it had increased to 185 individuals but had decreased to 158 by August 2018.84 73. According to the NDCS’s 2017 Restricted Housing Annual Report, the total
number of unique prisoners who spent some time in segregation was 1,651, a large percentage of the overall prison population.85 The number with a serious mental illness diagnosis who wound up being placed in segregation was 639,86 again a cause for concern.87 The average daily
population in restrictive housing has also increased—on average, about 404 prisoners were held
in restrictive housing on any given day in 2018 (compared to 388.54 in 2016 and about 348.22 in 2017).88 All of these prisoners experienced the dangerous conditions inherent in the social
isolation of segregation.
74. Prison systems throughout the country have found that an overreliance on
segregation is not necessary for good institutional safety and security or conductive to motivating
prisoners to change their behavior, and it often inflicts serious harm on prisoners. The WDOC
worked for more than a decade to establish effective step-down programs for prisoners who
84 OIG 2017-2018 Annual Report, page 56. 85 2017 Restrictive Housing Annual Report, Nebraska Department of Correctional Services, Sept. 15, 2017 (2017 Restrictive Housing Report), page 5, available at https://nebraskalegislature.gov/FloorDocs/105/PDF/Agencies/Correctional_Services__Departme nt_of/602_20170915-165720.pdf. 86 Ibid, page 9. 87 The 2018 Restrictive Housing Annual Report changed format and no longer tracks the number of unique prisoners who spent time in restrictive housing or the number of prisoners in restrictive housing who were diagnosed with a serious mental illness. 88 2018 Restrictive Housing Annual Report, Nebraska Department of Correctional Services, Sept. 14, 2018 (2018 Restrictive Housing Report), page 5.
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repeatedly returned to isolation. We targeted the most recalcitrant prisoners to see what we could do to offer them structured interventions that developed the internal skills and self-control necessary to help them live in general population. Our success with program outcomes was studied by researchers from the University of Washington.89 Much has been learned in Washington from these initial efforts and their step down programs continue to operate and improve to this day.
75. NDCS attempted to launch such a step down program in 2017 called The Challenge Program (TCP), but it has not been a success. The Nebraska Inspector General explained that there has been lack of prisoner willingness to participate in TCP, in part because participants must spend at least 52 weeks in a setting that the OIG described as “Restrictive Housing Lite” on top of the time already spend in restrictive housing in order to successfully complete the program, preventing them from being eligible to participate in programs such as substance abuse treatment and violence reduction that they are required to complete in order to be considered for parole. The broader NDCS issue of severe staffing shortages also contributes to the lack of interest in TCP—for example, the OIG reported that a required program for completion of the second phase of TCP was not offered for two weeks due to the lack of availability of a facilitator to run the program. The result of the lack of interest in TCP is 82 unused beds in a system that is severely overcrowded.90
76. It is entirely predictable that the segregation population is high in the NDCS. It will likely stay that way until the level of overcrowding can be reduced, more custody staff are available to supervise the prisoners and more program staff are brought on board to provide
89 D. Lovell, The Reintegration Program (RIP) at the Washington State Penitentiary: A Program Evaluation (2009). 90 OIG 2017/2018 Annual Report, pages 63-65.
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programs necessary for the prisoners’ release and to reduce the level of idleness. In the
meantime, NDCS continues to follow the dangerous management strategy of overusing
segregation to counteract the staffing shortages and keep prisoners under control, exposing
prisoners to the dangers I described above and making the prison system less safe for everyone.
E. The Dangerous Practice of Double Celling Segregation
77. Overcrowding in the NDCS has also led to the dangerous practice of placing two
prisoners in one segregation cell, a practice known to result in danger to prisoners.
78. Writing about the tragic death of a prisoner who was murdered by his cellmate at
TSCI in April 2017, the OIG quotes the experts about this misguided practice:
In Madrid v. Gomez, a case examining conditions of extreme isolation at California’s Pelican Bay State prison where “[r]oughly two-thirds of the inmates [were] double celled,” the court cited testimony from Professor Haney and Dr. Stuart Grassian in observing: [Double-celling] does not compensate for the otherwise severe level of social isolation .... The combination of being in extremely close proximity with one other person, while other avenues for normal social interaction are virtually precluded, often makes any long-term normal relationship with the cellmate impossible. Instead, two persons housed together in this type of forced, constant intimacy have an ‘enormously high risk of becoming paranoid, hostile, and potentially violent towards each other.’ The existence of a cellmate is thus unlikely to provide an opportunity for sustained positive or normal social contact.91
The OIG also quoted Dr. Haney’s testimony to the United States Senate in 2012:
[Doublecelled prisoners] are ... simultaneously isolated and overcrowded. They … really can’t relate in any meaningful way with whom they’re celled, and so they basically develop a kind of within cell isolation of their own. And it adds to the tension, and the tensions then can get acted out on each other. It creates hazards for the people who are forced to live that way. It creates hazards
91 Summary of the Report on the Death of Terry Berry, Office of Inspector General of Corrections, Aug. 28, 2017 (OIG Report on Death of Terry Berry), page 8, available at https://nebraskalegislature.gov/pdf/reports/public_counsel/2017berry.pdf.
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for the correctional officers who have to deal with prisoners who are living under those kinds of pressures.92
The OIG quoted a federal judge in Braggs v. Dunn, the federal court case about Alabama’s
prison system in which Dr. Haney and I both testified:
Admittedly, ADOC uses double-celling in some segregation units, which means putting two prisoners into a single segregation cell. At first blush, this practice might seem to mitigate the harmful effects of solitary confinement. However, double-celled segregation has an even more severe impact on the mental health of prisoners. Dr. Haney credibly explained that double-celled prisoners “in some ways ... have the worst of both worlds: they are ‘crowded’ in and confined with another person inside a small cell but—and this is the crux of their ‘isolation’—simultaneously isolated from the rest of the mainstream prisoner population, deprived of even minimal freedom of movement, prohibited from access to meaningful prison programs, and denied opportunities for any semblance of ‘normal’ social interaction.93
79. The OIG discovered on his own the very real fears of the staff that must work in
units where prisoners are double celled in segregation.
Another part of the double bunking issue is the safety of staff in these situations. During interviews with staff about Mr. Berry's death, some of the staff shared that they do not agree with double bunking in a restrictive housing unit because it can create safety issues for them. They shared that having two inmates in those cells makes it more difficult to extract, move or work with one or both inmates.94
80. And remarkably, the OIG witnessed the very danger the staff feared:
Recently, the OIG was in the restrictive housing unit at TSCI and interviewed an inmate (who was double bunked) in a separate interview room. When the inmate was returned to his cell, the staff opened the door and the other inmate charged out of the cell and attacked a staff member.95
92 Ibid, page 7. 93 Ibid. 94 Ibid, page 8. 95 Ibid.
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81. The murder of the prisoner by his cellmate simply would not have happened if NDCS did not double cell prisoners in segregation. Nor would the staff member referenced above have been attacked. While this is a practice sometimes used in other jurisdictions, in my experience in-cell fights are frequent as is the occurrence of both prisoners charging officers when their cell door is opened. The NDCS has clearly been warned about the dangers of this practice and they appear to have no plan to implement a change.
82. Unfortunately the top leadership of NDCS thinks otherwise. In a deposition Chief of Operations Sabatka-Rine, testifying on behalf of NDCS, said,
Because I don’t believe that double celling in and of itself impacts safety or mental well-being of individuals.96 This statement is not consistent with my experience in multiple jurisdictions that double-celling in the locked-down conditions of segregation creates an unacceptable risk of harm to both prisoners and staff. 83. In letters to the OIG addressing the issue of double bunking in segregation, Director Frakes said, I acknowledged no studies regarding double bunking and expressed that, based on my corrections knowledge and my 35 years of experience, double bunking in restrictive housing can be as safe as in general population.97 And, Again, I will note that my years of experience not only having worked in restrictive housing, but also having led the charge in the state of Washington to reduce the use of restrictive housing provide me the expertise to make such a statement.98 These responses from Director Frakes are most disappointing and I do not know what in his
96 Sabatka-Rine Depo. at 133:10-134:12. 97 OIG Report on Death of Terry Berry, page 12. 98 Ibid.
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experience would cause him to make these claims. My career in corrections in the State of
Washington paralleled his and we have not double bunked prisoners in segregation since the
mid-1980’s. It is simply too dangerous and far safer to avoid such a practice. Were it not for the
level of overcrowding and resultant disciplinary problems in the NDCS, I suspect they would do
just that.
F. Closed Management and Modified Operations 84. In May 2017, the Deputy Ombudsman for Corrections sounded the alarm that the
segregation population may be expanding under the guise of “closed management.” In a letter to
the Long-Term Restrictive Housing Work Group, he said,
After the events on May 2, 2017, which resulted in the death of two inmates, the Ombudsman's office noticed a shift in Department policy relating to restricting housing. It appears that the department has adopted a new housing unit concept called, “closed management.” It would also appear that this new concept is supposed to be considered “specific mission housing” but the inmates out of cell time is woefully less than what restrictive housing placement inmates receive. The puesphdo [sic] restrictive housing unit (Closed management) is currently being operated at the Nebraska State Penitentiary (NSP) and Tecumseh State Correctional Institution (TSCI). At this point in time, I have observed operations in these units to be more restrictive than the designated restrictive housing units at the aforementioned facilities. The inmates placed in these units do not have access to programming, activities or education. Additionally, the out of cell time is less than 1.5 hrs. per day.99 85. The Deputy Ombudsman goes on to detail concerns with this practice, including
input from prisoners and the staff who live and work in those units. The “closed management”
housing unit concept described by the Deputy Ombudsman is alarming, and may well mean that
the number of prisoners in segregation is being undercounted. I have seen no resolution of these
concerns addressed in the materials I have reviewed.
99 Deputy Ombudsman for Corrections May 22, 2017 Letter (NDCS 245029-245032), page 1.
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86. Relatedly, the OIG’s 2017/2018 Annual Report raised concern that over the past year or more, NDCS has reacted to incidents in housing units by placing the units on “modified operations,” during which prisoner movement and privileges are restricted, making the housing units operate more like restrictive housing. The OIG Report explained that in the past year, housing units were placed on modified operations for extended periods, during which “food trays were delivered under cell doors, and placed on floors which had been recently flooded with overflowed toilets,” and concerns were raised by prisoners about the quality and quantity of the food. During the modified operations periods, the prisoners “received very limited or no shower time, the units were unkempt and unsanitary, and some prisoners had hygiene items, clothing and bedding taken away for extended periods of time.”100
87. Based on my training and experience, it is my opinion that the increased use of these segregation-like conditions referred to as “closed management” and “modified operations,” like the overuse of segregation, are attributable to the severe overcrowding and understaffing crisis. Without enough staff to safely manage the prisoner population, the overall risk of violence and disturbances is significantly elevated, and the unsafe management strategy of simply imposing restrictive housing conditions on prisoners is often adopted by strained prison systems to control the prisoner population. As I have explained, overuse of segregation and segregationlike conditions in response to severe overcrowding and staffing shortages is counterproductive to the safety and security of the prison, and puts all prisoners and staff in danger. V. Conclusion
88. The Nebraska prison system has recognized they are overcrowded for decades and created master plans to clearly define what they need to build but they have taken far too little action on the recommendations made to them. In the meantime their overcrowding has
100 OIG 2017/2018 Annual Report, pages 65-66.
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gotten worse. They have recognized they are understaffed and commissioned a custody staffing analysis to define what they need to do to keep prisoners and their staff safe. Yet they have put off implementation of their new staffing model. They know they need more program staff so that prisoners can complete programs required for their release and they appear to have not yet begun finding a solution for that problem. They know they are housing too many people in segregation yet their segregation population has increased. While all this talk and so many reports have happened, there has been very little action to meaningfully solve their problems—their staff assault rates increased101 and they have had serious prison riots and prisoner deaths102—all of which could have been avoided if not for their chronic overcrowding and understaffing. The top leadership of the agency appears to have adjusted to this new normal, for example denying the risks of double celling for prisoners placed in segregation. In the meantime, all prisoners in the NDCS suffer the risk to their safety that results from overcrowding, understaffing and a high likelihood of winding up in a segregation cell, sometimes with a cellmate. At this point, in my opinion the NDCS requires the intervention of the court to address their crisis as they have clearly demonstrated that their good intentions are unlikely to result in solutions to solve their problem of the “two-headed monster” of overcrowding and chronic understaffing. In the meantime the prisoners and the staff are forced to exist in a situation that is dangerous and unsafe for everyone.
101 March 7, 2017 OIG Memo, page 7. 102 See, e.g., Ombudsman’s Report on TSCI Mother’s Day Riot; Fithian Report; OIG Report on Death of Terry Berry; OIG 2016/2017 Annual Report, pages 66-68 (discussing March 2017 TSCI riot).
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 Exhibit 3: Photographs Referenced in Class Certification Expert Declaration
1

Lincoln Correctional Center
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NDCS 084252 3

NDCS 084253
NDCS 084253
4

NDCS 084262 5

NDCS 084256 6

NDCS 084266 7

NDCS 084278
NDCS084278
8

Nebraska Correctional Center for Women
9

NDCS 150027 10

NDCS 150041 11

NDCS 150044 12

NDCS 150045 13

NDCS 150059 14

NDCS 150079 15

Nebraska State Penitentiary
16

NDCS 084228 17

NDCS 084312 18

NDCS 084300 19

NDCS 084308 20

NDCS 084310 21

NDCS 084321 22

NDCS 084332 23

NDCS 084333 24

[ NDCS 084334

J

NOCS084334
25

NDCS 084335 26

NDCS 084339 27

NDCS 084340 28

NDCS 084345
NDCS 084345
29

Tecumseh State Correctional Institution
30

NDCS 084398 31

NDCS 084413 32

NDCS 084417
NDCS 084417
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UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et al,

Case No. 4:17-cv-03107-RFR-MDN

Plaintiffs, v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al,

CLASS ACTION
EXPERT REPORT OF JAY D. SHULMAN, DMD, MA, MSPH

Defendants.

I, Jay D. Shulman, DMD, MA, MSPH, declare as follows: 1. I am a dentist experienced in the field of Correctional Dentistry retained by Plaintiffs’ counsel in the Sabata case as an expert in dental care in correctional institutions. I have been asked to render my opinion with respect to whether there are current systemic deficiencies in the dental care provided by the Nebraska Department of Correctional Services (“NDCS”) that are amenable to a common remedy that will reduce the risk of harm to prisoners. A true and correct copy of my curriculum vitae is attached as Exhibit 1. I. PROFESSIONAL QUALIFICATIONS A. Clinical, Management, and Academic Experience 2. I have been a dentist for 47 years and have had careers in the military, dental education, and correctional dentistry consulting. I am certified by the American Board of Dental Public Health, one of the nine specialties recognized by the American Dental Association (“ADA”). Moreover, I have extensive experience auditing educational, military, and correctional programs. 3. During my 22-year military career, I had clinical, research, administrative, and command assignments in the United States, Okinawa, and Germany. Among my assignments, I
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served as the Army Surgeon General’s Dental Public Health Consultant and wrote dental public

health policy, procedures, and technical guidance. As Commander of the 86th Medical

Detachment, I directed dental care delivery for the Army in North Central Germany and operated

six clinics with 20 dentists and 60 ancillary personnel and was responsible for the dental health

of 25,000 soldiers and family members.

4. I have written 59 peer-reviewed articles and four book chapters, served as a

reviewer for national and international dental journals and on the editorial board of the Journal of

Public Health Dentistry, the official journal of my specialty. Many of the papers I wrote during

my academic career related to the epidemiology of oral disease, such as dental caries, periodontal

disease, and oral lesions. Eight publications relate to correctional dentistry. A complete list of my

publications is included in my curriculum vitae.

B.

Correctional Dentistry Experience

5. I have served as a correctional dentistry consultant, court expert/representative,

and expert witness several times since 2005. As a court expert in two major class action

settlements involving prisoner dental care, I developed an audit process based on reviewing

clinical records and performed system-wide audits of programs in California (roughly 170,000

prisoners in 33 institutions) and Ohio (roughly 50,000 prisoners in 30 institutions) over a five-

year period. I am currently a member of a Rule 706 Medical Investigation Team in class action

litigation involving dental care in the Illinois prison system.1 Moreover, in 2014, I was retained

as a dental expert by the U.S. Department of Justice in an investigation of a prison’s dental care

under the Civil Rights of Institutionalized Persons Act.

6. I have performed clinical dentistry and supervised dental and dental hygiene

students at the Dallas County Juvenile Detention Center. My work in the military and

1 Don Lippert el al. v. John Baldwin, et al., Case No. 10-cv-4603 (N.D. Ill.). 2

4:17-cv-03107-RFR-MDN Doc # 249-53 Filed: 02/19/19 Page 3 of 68 - Page ID # 11333
correctional dentistry, as well as my training in Dental Public Health focusing on populationbased care, have given me unique expertise to discuss not only specific incidences of dental care, but system-wide deficiencies in dental care and the effects those deficiencies are likely to have on prison populations. A complete list of the cases for which I served as an expert is in the Consultant Activities section of my curriculum vitae attached as Exhibit 1.
7. I have been asked to render my opinion with respect to whether prisoners in NDCS facilities are subjected to a substantial risk of serious dental injury caused by NDCS’s systemic deficiencies; and whether the deficiencies are amenable to a common remedy that will reduce the risk of harm to prisoners. My opinions are based on a review of dental records of the named prisoner plaintiffs, interviews of two plaintiffs, review of randomly selected prisoner records, as well as documents, and reports, available at this time, as listed in Exhibit 2, and the scientific literature. In addition, the opinions are based on my 47 years of professional experience in dentistry and are made to a reasonable degree of dental certainty. II. SUMMARY OF OPINIONS
8. It is my opinion that the consistently inadequate dental care documented in the records I reviewed is attributable to systemic problems caused by inadequate dentist staffing and inadequate policies and procedures in the NDCS’s Dental Department. Specifically, the NDCS’s policies and practices regarding quarantine periods for routine care and dentures and inadequate diagnosis and treatment of periodontal disease combine into a system that fails to adequately identify, or properly and timely treat, dental issues experienced by prisoners. The NDCS’s policies on these issues are in many cases themselves below the standard of care. These failures place all prisoners at risk not only of preventable pain, but also of advanced tooth decay, advanced periodontal disease, and unnecessary loss of teeth. The inadequacies in dental care experienced by the plaintiffs are typical of the risk of inadequate dental care for all inmates.
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Consequently, all prisoners are at risk for preventable pain and tooth morbidity. In my experience as Court Expert / Monitor in Fussell v. Wilkinson2 and Perez v. Tilton3, both large dental prisoner class actions, I have seen systemic problems of this type addressed successfully by mandated changes in the dental care system. III. DENTAL CONDITIONS
A. Odontogenic Pain (Toothache) 9. Regardless of the size of an institution or the scope of dental care provided, the requirement to treat toothaches is common to all correctional facilities since managing patients’ pain is a standard part of dental practice.4 Pain is managed by the appropriate use of analgesics as well as expediting the treatment of patients whose complaints of pain are clinically validated. Among the possible non-traumatic causes of tooth pain are (a) tooth fractures (often, a tooth that has been weakened splits during normal chewing), (b) pulpitis, (c) caries (decay) extending through the enamel into dentin, (d) dental (periapical or periodontal) abscess, and (e) cellulitis (a diffuse inflammation of the connective tissue caused by a spreading bacterial infection just below the skin surface). B. Dental Caries 10. Dental caries (tooth decay) is an infectious disease characterized by progressive destruction of tooth substance, beginning on the outer (enamel) surface or the exposed root surface. Left untreated, the decay can progress, causing pain and leading to tooth loss, localized infection (dental abscess), and occasionally, systemic infection.
2 Case No. 1:03-cv-00704 (S.D.Ohio), filed 10/14/2003), R.181, Page 4 (appointing Dr. Shulman as an expert in dentistry). 3 Case No. 3:05-cv-05241 (N.D.Cal.), filed 12/19/05), R.96, (“Order Appointing Court Experts as Court Representatives”; R. 36, “Order Appointing Experts”.) 4 Shulman JD and Sauter DT (2012). Treatment of odontogenic pain in a correctional setting. Journal of Correctional Health Care 18:62.
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11. Caries is typically diagnosed visually and/or radiographically. The visual

appearance ranges from a “white spot” on the enamel (outer layer of the tooth) to a gaping hole

in the tooth with black staining characteristic of end-stage caries. Figure 1 is a representation of

how different stages of caries may appear on an intraoral radiograph.

Figure 1. Interproximal Decay as Seen on a Radiograph

A. Incipient

B. Moderate/ Advanced

C. Severe

12. An incipient lesion (Figure 1A) may not readily identified clinically because there is no “cavity” in the tooth and too little tooth has been affected to be seen on a radiograph.5 Once the lesion reaches the dentin—a tissue that is less resistant to decay than enamel (early Figure 1B)—the patient should be scheduled for treatment. Figure 1C shows an advanced lesion that is almost through the dentin to the pulp. When decay reaches the pulp, the tooth will require either endodontic (root canal) treatment or extraction. Caries that is radiographically at or beyond the dentin should receive prioritized treatment to prevent deterioration to the point that the only practical alternative will be extraction.
13. A tooth that is classified as requiring routine (as opposed to urgent) treatment will typically not remain asymptomatic indefinitely. Caries, especially once the enamel has penetrated the dentin, generally progresses. The more time that passes before the tooth is treated (i.e., filled), the greater the likelihood that decay will progress, destroying tooth structure, possibly causing an abscess, and generally requiring the tooth to be extracted. Consequently, any
5 At this point, the lesion has the potential to re-mineralize, reversing the decay process. 5

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classification system must have timelines to ensure that teeth that did not have a severe problem at the time of classification do not develop a severe problem due to untimely treatment.
14. Caries progression is a function of the interaction of risk factors; (1) the presence and virulence of cariogenic bacteria in the dental plaque, (2) the susceptibility of the tooth to the caries process, (3) the presence of sugars and fermentable carbohydrates in the diet, and (4) time.6 Moreover, xerostomia (dry mouth) has been reported to be a common complaint of patients with diabetes.7
15. Among the factors affecting caries progression is xerostomia (hyposalivation or dry mouth) [Id.] Xerostomia is a side-effect of many drug classes such as antidepressants, anticonvulsants, anxiolytics, antipsychotics, anticholinergics, and alpha agonists8; a phenomenon known as polypharmacy9 (“[…] the use of multiple medications increases the risk of adverse medication side effects” [id.]). Many prisoners take one or more of drugs in these classes and are particularly vulnerable to rapid caries progression (id.)
16. To summarize, because decay generally progresses if untreated, untimely treatment even of asymptomatic decayed teeth puts prisoners at risk of preventable pain, increased tooth morbidity (making it more difficult to restore), or tooth loss. While the rate of decay progression is highly variable in a population, from my experience as an oral epidemiologist, I am comfortable stating that all individuals subjected to treatment delays are at
6 Shulman JD, Cappelli DP. “Epidemiology of Dental Caries.” In Cappelli DP, Mosley C, eds. Prevention in Clinical Oral Health Care. Elsevier (2008), 3-4. 7 L.M. Sreebny, A. Yu, A. Green, et al., Xerostomia in diabetes mellitus, Diabetes Care 15:7 (1992) 900–904. 8 Swager, LWM and Morgan, SK (2011). Psychotropic-induced dry mouth: Don’t overlook this potentially serious side effect. Current Psychiatry 10:12, 54-58. 9 “The risk of salivary hypofunction increases with polypharmacy and may be especially likely when ≥3 drugs are taken per day” (Swager and Morgan, p. 54).
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substantial risk of suffering loss of tooth structure (tooth morbidity) as well as tooth loss (tooth mortality).
C. Periodontal Disease 17. Periodontal disease is an inflammatory disease of the supporting tissues of the
teeth resulting in the progressive destruction of the periodontal ligament and the alveolar bone with pocket formation, gingival recession, or both and resulting tooth loss.10 Figure 2 compares normal periodontium to that which has been damaged by periodontal disease. Note that periodontal probe is inserted in a space created where the periodontal ligament and alveolar bone were destroyed.11 The probe measures the depth of the periodontal pocket (in millimeters). These measurements are recorded by dentists and dental hygienists to establish a baseline and to assess disease progression over time. Tracking periodontal pocket depth over time is black letter dentistry.
Figure 2. Normal and Diseased Periodontium
10 Cappelli DP, Shulman JD. Epidemiology of Periodontal Diseases.” In Cappelli DP, Mosley C, eds. Prevention in Clinical Oral Health Care. Elsevier (2008), p. 14. (“Cappelli and Shulman”) 11 See discussion of the Periodontal Screening and Recording System in Exhibit 3, infra.
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1. Periodontal Diagnosis
18. Periodontal probing is not a sterile academic exercise but rather a tool to identify
portions of the mouth that require further examination. It should be performed at every routine
examination to monitor disease progression and determine if a more extensive examination
should be performed.12,13,14,15
19. PSR scores that indicate the presence of moderate or severe periodontal disease
should be followed-up. For example, if there is one sextant with a PSR score of 3,
[a] comprehensive periodontal examination and charting of the affected sextant are necessary to determine an appropriate care plan. This examination and documentation should include the following: identification of probing depths, mobility, gingival recession, mucogingival problems, furcation involvement, and radiographs. If two or more sextants score a Code 3, a comprehensive full mouth examination and charting are indicated.16
20. Exhibit 3 describes the process for determining the PSR that should be performed
at every routine examination to monitor disease progression (Periodontal Exam, p. 847;
Periodontal Maintenance, p. 849; Chronic Periodontitis, p. 853). Sextants with PSR scores of 317
or 418 are often described as having moderate and severe periodontal disease, respectively.
12 American Academy of Periodontology. Parameter on Comprehensive Periodontal Examination. J Periodontol 200;71:847-848, p. 847. ("Periodontol Exam") 13 American Academy of Periodontology. Parameter on Periodontal Maintenance. J Periodontol 2000;71:849, p. 849.(“Periodontal Maintenance”) 14 American Academy of Periodontology. Parameter on Chronic Periodontitis with slight to moderate loss of periodontal support. J Periodontol 2000;71:853-854. (“Chronic Periodontitis”) 15 American Academy of Periodontology. Parameter on Chronic Periodontitis with Advanced Loss of Periodontal Support. J Periodontol 2000;71:856-857, p. 857. (“Advanced Periodontitis”) 16 Mitchell, TV. Periodontal Screening and Recording: Early Detection of Periodontal Diseases. Dentalcare.com Continuing Education. Visited 10/29/2018 at http://www.dentalcare.com/en-US/ dental-education/continuing-education/ce53/ce53.aspx, p. 6. (If there is at least one sextant with a PSR score of 4, “[a] comprehensive full mouth periodontal examination and charting are necessary to determine an appropriate care plan” [id.]). 17 Deepest probing depth >5.5 millimeters [Cappelli and Shulman at 20]. 18 Deepest probing depth between 3.5 and 5.5 millimeters [Cappelli and Shulman at 20].
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Untreated, the disease could progress, and the affected dentition may be lost. A comprehensive periodontal examination should be performed and in most cases the patient should be scheduled for scaling and root planing (“SRP”) and re-evaluation.
21. In addition to periodontal probing, intraoral radiographs can assist in periodontal diagnosis; however, “[b]ecause of the lower resolution and superimposition of structures on the film, a panoramic[19] radiograph does not have the fine detail necessary to diagnose caries or document periodontal bone loss”20
22. Moreover, conventionally read radiographs routinely underestimate the amount of bone loss21. “Intraoral radiographs, such as vertical films and horizontal and vertical bitewings, provide a considerable amount of information about the periodontium that cannot be obtained by any other non-invasive means. Although valid periodontal diagnoses cannot be made from radiographs alone, they are an essential component of a complete periodontal examination” [Stefanac, p. 12, emphasis added].
23. To summarize, treatment plans that are not informed by periodontal probing are below accepted professional standards because they will likely underdiagnose periodontal disease. Moreover, when periodontal screening indicates the presence of moderate or advanced disease, the standard of care dictates that further diagnostic modalities should be used to identify the specific disease sites.22 This is especially problematic since periodontal disease is typically
19 A panoramic (Panoral, Panorex) radiograph is taken extra-orally and displays the entire maxillofacial complex. 20 Stefanac SJ. Information Gathering and Diagnosis Development in Treatment Planning in Dentistry [electronic resource]. Stefanac SJ and Nesbit SP, eds. Edinburgh; Elsevier Mosby, 2nd. Ed. 2007, p. 12. Emphasis added. (“Stefanac”) 21 American Academy of Periodontology. Position Paper: Diagnosis of Periodontal Diseases. Journal of Periodontology 74:1237-1247; 2003, p. 1242. (“Periodontal Diagnosis”) 22 This is important since a PSR score simply indicates the deepest probing depth in a sextant of the mouth rather than the site or sites that generated the measurement. Failure to document the
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painless. Failure to diagnose dental conditions timely is likely to result in preventable pain, tooth
morbidity and tooth mortality.
2. Oral Radiographs 24. “Accurate diagnostic information forms the foundation of any treatment plan.23
This information comes from the patient history, radiographs, and the clinical examination.” [“Stefanac”, p. 3 (emphasis added).]24 Radiographs are an important adjunct in the diagnosis of
dental conditions.
25. The radiographs most frequently used in dentistry are the panoramic (often
referred to as a Panorex), periapical, and bite-wing. The panoramic radiograph (Fig. 2) displays a
wide area of the jaws and helps detect developmental anomalies, pathologic lesions of the teeth
and jaws, or other bone fractures. In adults, dentists most commonly use this radiograph to
evaluate third molar position or the condition of edentulous areas of the jaws before fabricating
removable prosthodontics (dentures). [Stefanac p. 17]. It is generally taken as part of the intake
process (for new patients) in institutional settings such as the military, community health centers,
and departments of corrections as well as in many private practices.
problematic sites prevents determining the extent to which subsequent treatment has been effective. 23 Radiographs or images of diagnostic quality should be obtained as part of a comprehensive oral evaluation. The number and type of radiographs or images required to provide the information needed for diagnostic purposes will vary according to the needs of the individual patient and should be determined by the attending dentist. See American Dental Association – Evaluation: Patient Requiring a Comprehensive Oral Evaluation. Visited 10/29/2018 at https://www.ada.org/en/member-center/member-benefits/practice-resources/dental-practiceparameters/evaluation-patient-requiring-a-comprehensive-oral-evaluation (“ADA Comprehensive Oral Evaluation”)]. 24 For example, a treatment planning examination in the Federal Bureau of Prisons includes, inter alia, a complete periodontal examination and necessary radiographs (less than one year for bitewing and periapical x-rays, less than five years for panoramic x-rays). BoP Dental Program Statement at 11.
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4:17-cv-03107-RFR-MDN Doc # 249-53 Filed: 02/19/19 Page 11 of 68 - Page ID # 11341 Figure 3. Panoramic Radiograph
26. Because of the lower resolution and superimposition of structures on the film, a panoramic radiograph does not have the fine detail necessary to document periodontal bone loss. This is more effectively accomplished with intra-oral radiographs [Stefanac at 17].
27. Dentists rely on intra-oral (film or sensor placed inside the mouth) and extra-oral radiographs in their practice. The intra-oral radiographs comprise periapicals (Figure 4) and bitewings (Figure 5). Periapical radiographs should show the entire tooth and the surrounding bone. They are useful for imaging the teeth, detecting caries, and documenting signs of periodontal and periapical disease [id.]. They are especially valuable when a patient presents with a toothache to determine whether the source of the pain was an adjacent tooth or whether there is an abscess associated with the root of the tooth (see arrow, Figure 4).
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Figure 4. Periapical Radiograph

Figure 5. Bite-Wing Radiograph

28. Horizontal and vertical interproximal or bite-wing radiographs show the crowns
of the teeth in both arches and the alveolar crestal bone25. They are most frequently used for the
detection of interproximal caries (caries between the teeth) and for evaluating the crestal bone
height to assess periodontal health (Figure 5. Bite-Wing Radiograph)
29. The ADA and U.S. Food and Drug Administration recommendations for
prescribing dental radiographs for adults are based on encounter type (new patient versus recall
patient) and caries / periodontal disease history. In a prison, new intakes (other than intra-system
transfers and recent recommits) fall into the “new patient” category. An examination for a new
dentate or partially edentulous patient (i.e., intake exam) comprises an
[i]ndividualized radiographic exam consisting of posterior bitewings with panoramic exam or posterior bitewings and selected periapical images. A full mouth intraoral radiographic exam is preferred when the patient has clinical evidence of generalized oral disease or a history of extensive dental treatment.26, 27
25 The bone between the teeth (note red arrow in Figure 5). 26 U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, American Dental Association, Council on Scientific Affairs. Dental Radiographic Examinations: Recommendations for Patient Selection and Limiting Radiation Exposure (2012), p. 10. (“Dental Radiographs”). Visited 10/29/2018 at https://www.ada.org/~/media/ADA/Member%20Center/FIles/Dental_Radiographic_Examinatio ns_2012.ashx 27 See also Cappelli and Shulman, p. 21, (“[r]adiographic evidence of bone loss remains the most valid measure of destructive periodontal disease”).
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30. At recall (e.g., periodic) examinations, dentate or partially edentulous patients with clinical caries are at increased risk for caries should have “[p]osterior bitewing exam at 6 to18-month intervals” [id. p. 11] and those with no caries and for those not at increased risk of caries28 “a radiographic examination consisting of posterior bitewings is recommended at intervals of 24 to 36 months.” [Id. p. 12].
31. To summarize, a treatment plan that is made without clinically-appropriate radiographs and periodontal probing is below accepted professional standards. A policy or practice of delaying the use of radiographs until the time of treatment ignores dental problems that are asymptomatic or cannot be visualized (such as periodontal disease or early caries). The resulting under diagnosis is pernicious since it will delay treatment and allow the condition to progress to the point that it causes pain. At this point treatment may be more difficult or the tooth may be unsalvageable and require extraction.
3. Periodontal Treatment 32. While advanced surgical treatment of periodontal disease is beyond the scope of services in available in most public dental programs, scaling and root planing (“SRP”) is well within the scope of practice of dentists and dental hygienists29 and comprises the standard of care
28 Adult dentate patients who receive regularly scheduled professional care and are free of signs and symptoms of oral disease are at a low risk for dental caries. Nevertheless, consideration should be given to the fact that caries risk can vary over time as risk factors change [Radiographic Examination at 9]. For example, medications commonly prescribed to prisoners often cause dry mouth – which is a risk factor for caries. (See, discussion of dry mouth at ¶IIII B supra.) 29 “At a minimum, noninvasive periodontal care such as scaling and root planing should be available to inmates and is to be used where periodontal pockets exceed 3 millimeters.” NCCHC Guidelines p. 171.
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for nonsurgical periodontal therapy30.31 Similarly, the purpose of the debridement procedure32 is to remove gross accumulations of materials that interfere with a dentist’s performing a proper exam of the teeth. It is at best a precursor to definitive dental treatment33,34 The advanced lesion, once formed, can progress and the associated bone destruction may result in tooth loss (Cappelli and Shulman, p. 18).
33. Exhibit 3 shows the non-surgical treatment generally associated with the range of PSR scores. Mild gingival inflammation evidenced by slight bleeding on probing (PSR Score 1) can generally be addressed by oral hygiene instruction and a prophylaxis. As periodontal disease progresses, PSR scores increase, pari passu; and starting at PSR Score 2, prophylaxis and oral hygiene instruction are insufficient35 (Chronic Periodontitis, p. 854; Advanced Periodontitis, p. 857). Typical non-surgical treatment of individuals identified with moderate or severe periodontal disease is a deep cleaning called ‘periodontal scaling and root planing’ (“SRP”) followed by periodic re-evaluation.
30 Sanz et al. Nonsurgical treatment of periodontitis (2012). Journal of Evidence Based Dental Practice 51:76-86, p. 77. 31 This is particularly important since one study of prisoners found 41.5% had at least one PSR score of 3 and 30.9 percent had at least one PSR score of 4 Clare JH (1998). Survey, Comparison, and Analysis of Caries, Periodontal Pocket Depth, and Urgent Treatment Needs in a Sample of Adult Felon Admissions, 1996. J Correctional Health Care; 5: 89–101, p. 70. 32 American Dental Association Current Dental Terminology (“CDT”) Code 04355. 33 Systematic Review and Meta-Analysis on the Nonsurgical Treatment of Chronic Periodontitis by Scaling and Root Planing with or without Adjuncts (2015) Journal of the American Dental Association 146(7) 508-524, p. 509. 34 Oral hygiene instruction (01330), while important to provide a patient with information on how to remove plaque (e.g., by proper brushing and flossing), cannot remove calculus. Absent other periodontal procedures, disease may progress to the point that alveolar bone and periodontal ligament are lost, resulting in the formation of periodontal pockets (Figure 1 supra). 35 Periodontal lesions may be generalized, or localized in a quadrant, or a tooth.
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34. Mild gingival inflammation evidenced by slight bleeding on probing (PSR Score
of 1) can generally be addressed by oral hygiene instruction and a prophylaxis. As periodontal
disease progresses, PSR scores increase, pari passu, and starting at PSR Score 3, prophylaxis and
oral hygiene instruction are insufficient (Moderate Periodontitis, p. 854; Advanced Periodontitis,
p. 857). Typical non-surgical treatment of individuals identified with moderate or severe
periodontal disease is SRP 36,37 followed by periodic re-evaluation.
35. Typically, SRP requires several visits38; and, since it involves smoothing (or
planing) the roots of vital teeth and often results in the removal of soft tissue, local or topical
anesthesia are generally used – since it is extremely difficult to perform this procedure on a
squirming patient with acceptable results. It simply cannot be done in the time allocated for a
dental prophylaxis.
36. To summarize, untreated, periodontal disease is typically painless especially in its
early or moderate stages. It is likely to progress, and the affected dentition may be lost. While
performing a dental prophylaxis is appropriate for early periodontal disease and may be a first-
36 CDT Code 4342 (periodontal scaling and root planing - one to three teeth per quadrant) involves instrumentation of the crown and root surfaces of the teeth to remove plaque and calculus from these surfaces. It is indicated for patients with periodontal disease and is therapeutic, not prophylactic, in nature. Root planing is the definitive procedure designed for the removal of cementum and dentin that is rough and/or permeated by calculus or contaminated with toxins or microorganisms. This procedure may be used as a definitive treatment in some stages of periodontal disease and/or as a part of pre-surgical procedures in others (Excerpted from CDT 2015 of the ADA). 37 For example, the California Department of Corrections considers that moderate and severe periodontitis to comprise “interceptive care” and the appropriate treatment (i.e., scaling and root planing) should be performed within 120 days (CDCR Dental Policy at 5.4-3, p 127). 38 For example, CDCR policy recommends that, “inmate-patients who need two quadrants or less of SRP have it completed in a single encounter and those needing more than two quadrants have the treatment completed in two encounters that are at least two weeks apart” [CDCR Dental Policy at 2.4.4 p 24]. Also, “[i]nmate-patients shall receive a re-evaluation of their periodontal disease status four (4) to eight (8) weeks following completion of treatment procedures associated with active therapy” [id.].
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step for treating moderate to advanced periodontal disease, appropriate non-surgical treatment for moderate to advanced periodontal disease is scaling and root planing – a procedure that is not a part of a dental prophylaxis.
D. Pulpitis 37. Pulpitis is an inflammation of the living tissue within the tooth. Reversible
pulpitis will resolve when the source of irritation is treated or removed. Typically, reversible pulpitis is attributed to minor tooth fractures, caries (decay), defective or missing fillings, and occlusal (bite) discrepancies and can be treated with analgesics and a dental procedure. The dental procedures may include removing decay and inserting a new or replacement filling, adjusting the bite, and applying desensitizing agents (Shulman and Sauter, p. 63).
38. When the inflamed living tissue inside the tooth (the pulp) swells and circulation is compromised, pulpitis becomes irreversible. A tooth with irreversible pulpitis has a partially vital pulp with inflammation and degeneration that is not expected to improve. Once pulp death (necrosis) occurs, the tissue is vulnerable to attack by bacteria, leading to infection at the apex of the tooth. Eventually this infection spreads by resorbing bone and supporting structures (Shulman and Sauter, pp. 63-64).
39. To summarize, failure to remove the cause of pulpal irritation timely, typically by removing decay and placing a filling, places the tooth at risk of developing an irreversible condition that jeopardizes the prognosis of the tooth.
E. Lost Fillings or Crowns 40. It is not uncommon for fillings to fracture and fall out in whole or in part due to
wear or underlying decay. Any underlying decay should be removed expeditiously because it is generally within the dentin and close to the pulp. Decay near the pulp may lead to irreversible pulpitis and can jeopardize the prognosis of the tooth.
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41. When a filling falls out or fractures, it must be replaced in a timely manner to protect the pulp of the tooth from the effects of dentinal sensitivity, which is pain brought on by such stimulating factors as cold and sweet39. The longer dentinal sensitivity persists the greater the likelihood that what initially may have been a reversible condition will develop into irreversible pulpitis requiring root canal or extraction. The structural integrity of the tooth also may be impaired making it vulnerable to fracturing during normal chewing. Consequently, even a tooth in which the pulp is not exposed may develop irreversible pulpitis if the filing is not timely replaced or repaired.
42. To summarize, failure to timely replace the filling and remove underlying decay, places the tooth at risk of developing an irreversible condition that jeopardizes the prognosis of the tooth.
F. Fractured Teeth 43. Fractures of the teeth are often the result of trauma and can be difficult to
diagnose. Non-vital teeth are more susceptible to fracture than vital teeth due to the loss of their blood supply (pulp). Moreover, because they are ‘dead’, there is no pain associated with the fracture. The broken tooth, however, may become an irritant to the soft tissues.
44. Fractured teeth40 are generally classified into three categories: (1) enamel only, (2) enamel into dentin, and (3) fractures involving the pulp. Fractures that extend only into the enamel are usually asymptomatic and do not require immediate dental treatment unless the tooth is an irritant to the lips, tongue, or cheeks. In contrast, fractures that extend into the dentin are usually symptomatic, causing tenderness, reaction to thermal changes, and pain. While not an
39 Ingle JI. PDQ Endodontics, 2nd ed. Peoples Medical Publishing House – USA; 2009, p. 1-2. 40 In my experience monitoring prison dental care, prisoners will often complain of “chipped teeth” when they have fractured teeth.
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emergency, they should be treated to relieve the symptoms. The greater the area of exposed dentin the more urgent the treatment need because the pulp can become necrotic, resulting in infection. Fractures that extend into vital pulp often cause severe pain and are considered an emergency. Bleeding from the pulp can be seen in some cases, usually as a small pinpoint of red in the dentin. These fractures should be treated as soon as possible.
45. To summarize, the longer the pulp of the tooth is exposed to the oral environment, (from a lost filling, fractured tooth, or a crown that has fallen off), the greater the likelihood that the pulpitis will become irreversible and absent endodontic treatment, the tooth will require extraction. This places a premium on timely diagnosis and treatment.
G. Chewing Difficulty 46. Chewing difficulty can be caused by pain associated with decayed, broken-down,
or infected teeth. This can be addressed by timely repair or extraction of the problematic teeth. Another type of chewing difficulty is the result of an inadequate number of opposing teeth41. This can be addressed by fabricating prosthodontic appliances (i.e., dentures)42. Tooth loss is not satisfactorily compensated for by removable prostheses since the masticatory efficiency of a denture wearer is far from matching that of a fully dentate person43; however, people with impaired mastication may cope with feeding by either adapting their food choices or swallowing coarse particles that make the problem a digestive one. The first type of behavior is known to
41 Opposing teeth are teeth that are positioned so that they can crush or tear food between them. In the absence of opposing teeth, food is crushed against soft tissue – which can be a source of pain. (See discussion of prisoner Valerie Thorpe infra). 42 While prescribing a soft diet may be a short-term solution until the denture is fabricated, edentulousness can be a serious problem since it reduces chewing performance and affects food choice. 43 While the chewing efficiency of removable dentures is less than that of natural teeth, dentures 1) do improve chewing efficiency and 2) protect the soft tissue from abrasion from food during chewing.
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induce imbalance in dietary intake, and the second may result in decreased bioavailability of nutrients and gastrointestinal disturbances. In both situations, the impaired dietary or nutrient intake may increase nutrition-induced disease risks44.
47. Chewing difficulty can be caused by pain associated with decayed, broken-down, or infected teeth and can be addressed by timely repair or extraction of the problematic teeth. Another type of chewing difficulty is the result of an inadequate number of opposing teeth45 and can be addressed by fabricating prosthodontic appliances (i.e., dentures).
48. Tooth loss has been associated with changes in food preference and nutritional deficiency although the evidence that people whose mastication is impaired by tooth loss are more likely to be underweight is conflicting46. Individuals with limited chewing ability are at risk for nutrition problems that have different physical manifestations. First, chewing may be so painful that an individual has an inadequate caloric intake – as evidenced by weight loss and reduced Body Mass Index (“BMI”). Second, people with a compromised dental status may avoid hard-to-chew foods and instead choose processed foods, favoring the absorption of cholesterol and saturated fatty acids, or may prefer simple carbohydrate-rich diets that are high in calories but low in dietary fiber, vitamins, and protein, thus leading to weight gain47. In this case, weight gain would be pathologic and not evidence that the individual had no chewing difficulty.
44 N’Gom PI, Woda A (2002). Influence of impaired mastication on nutrition. Journal of Prosthetic Dentistry; 87:6; 667-673, p. 667. 45 Opposing teeth are teeth that are positioned so that they can crush or tear food between them. In the absence of opposing teeth, food is crushed against soft tissue – which can be a source of pain. 46 Sheiham A, Steele JG, Marcenes W, Finch S, Walla AWG (2002). The relationship between oral health status and Body Mass Index among older people: a national survey of older people in Great Britain. British Dental Journal; 192:12 703-706, p. 703. 47 Sánchez-Ayala A, Campanha NH, Garcia RCMR (2013). Relationship between body fat and masticatory function. Journal of Prosthodontics 22: 120–125, p. 120 (“Sánchez-Ayala et al.”)
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49. While one might naively assume that weight gain necessarily is evidence of an absence of chewing problems, prisoners generally gain weight during incarceration48. Whether this is due to lack of physical activity, the effects of medication, stress, or commissary purchases49 is unresolved.
50. Many drugs commonly prescribed for chronic disease have weight gain as an adverse effect50 and many are commonly prescribed to prisoners. Weight gain can arise due to differing mechanisms; such as increased appetite (e.g., corticosteroids) or reduced metabolic rate (e.g., beta-adrenoceptor blockers) [id. p. 396]. A systemic review of drug clinical trials found that drug classes such as used to treat Type 2 diabetes (insulin, sulphonylureas, thyiazolinidiones), hypertension (beta-blockers), inflammatory disease (corticosteroids), psychosis (antipsychotics), epilepsy, depression (tricyclic antidepressants), and bipolar disorder (Valproate, Lithium) are obesogenic [id. p. 396].
51. To summarize, weight gain or a stable weight are not dispositive of a lack of chewing difficulty. The association between chewing difficulty and weight loss is not clearly established and there is a body of studies explained by plausible scientific mechanisms that support the association between chewing difficulty and (pathologic) weight loss or gain. Moreover, the literature suggests that weight gain may occur irrespective of chewing difficulties.
48 Gates ML and Bradford RK (2015). The Impact of Incarceration on Obesity: Are Prisoners with Chronic Diseases Becoming Overweight and Obese during Their Confinement? Journal of Obesity; Volume 2015, Article ID 532468, p. 4. (“Gates and Bradford”) 49 Food purchases from the commissary (many of which also are only an approximation of what offenders consume) instead of, or in addition to, their institutional meals. Offenders sometimes engage in proxy purchases for other offenders or trade commissary goods as a form of currency. Moreover, goods from the commissaries include food items, many of which are processed high sodium and high fat content foods [Gates and Bradford at 6]. 50 Leslie WS, Hankey CR, Lean MEJ (2007). Weight gain as an adverse effect of some commonly prescribed drugs: a systematic review. Quarterly Journal of Medicine 100:395–404, p. 395. (“Leslie et al.”)
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Consequently, a that a prisoner has not lost weight or, in fact, gained weight does not necessarily rule out chewing difficulties. Failure to timely address the source of chewing difficulty can result in gratuitous pain, digestive problems, and dietary imbalances. IV. STANDARD OF DENTAL CARE
A. Scope of Services 52. While the scope of services in prisons may be less extensive than that in a private practice, the standard for quality is the same in a correctional institution as it is in the community at large (Makrides et al., p. 557). The focus of correctional dentistry is the control of acute and chronic dental pain, stabilization of dental pathology, and maintenance or restoration of function. Dental treatment should not be limited to extractions and should include restorations (fillings) (id.). These standards of dental care are based on my research, the care provided in the community to include the Nebraska Medicaid Program, and the care provided in institutions including that provided by departments of corrections that have emerged from federal monitoring in the past 10 years. The standard of care used in the community at large is instructive because that standard is based on the type of care needed to protect patients from unnecessary pain and dental injury. 53. Furthermore, Nebraska Revised Statute 83-4, 155 states that “[i]n administering health care services, the department [NDCS] shall provide a community standard of health care to all inmates.”. While the “community standard” for dental services was not defined in the statute, the scope of services for which reimbursement is allowed by the Nebraska Medicaid
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Program51 (which I presume follows the community standard) is a reasonable point of comparison.52
B. Access to Care 54. A prison system must be staffed with dental professionals qualified to provide inmates with needed dental care. Inadequate staffing causes delay and puts prisoners at a substantial risk of pain and serious injury. However, an appropriately staffed dental department is necessary but not sufficient to ensure timely access to care. Dental staff must be accessible, not merely “available”53. That inmates are in restricted housing does not relieve the institution of the responsibility of ensuring that they are brought to dental appointments. C. Quality of Care 55. While the scope of services may vary, the requirement to treat dental pain is universally applicable to all correctional facilities. The standard of care for treatment of odontogenic pain requires (a) a competent, well-documented examination of the mouth, (b) a diagnosis and treatment plan based on sufficient clinical data, (c) prompt referral to and treatment by a dentist, and (d) documented follow-up54. Prisoners complaining of a toothache should be examined by a midlevel medical provider, physician, or dentist within twenty-four hours of the complaint being received by prison staff55.
51 Nebraska Medicaid Practitioner Fee Schedule for Dental Services Medicaid Services. Chapter 6-000 Dental Services, Manual Letter #49-2017. “Dental services must be delivered in accordance with generally accepted, evidence-based medical standards”. ¶6-003.01A. 52 With respect to quality, the standard of care is what a reasonably skilled and competent dentist provides in the community as well as what is taught in dental schools. 53 Shulman JD, Makrides NS, Lockhart A (2017). The Organization of a Correctional Dental Program. In Cohen F. (Ed.), Correctional Health Care: Practice, Administration, and Law (Chapter 8, pp. 1-23). Kingston, NJ: Civic Research Institute, p. 8-16, 8-17. 54 Shulman and Sauter, p. 67. 55 Shulman & Sauter, p. 67.
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D. Treatment of Dental Pain 56. The standard of care for treatment of urgent care encounters requires (a) a competent, well-documented examination of the mouth, (b) a diagnosis and treatment plan based on sufficient clinical data, (c) prompt referral to and treatment by a dentist, and (d) documented follow-up. treatment is below the standard of care and is inappropriate under all circumstances56. 57. Because dental conditions can progress absent timely treatment, it is important that a dental program have appropriate policies, procedures, protocols, and enough treatment capacity to ensure that the treatment of painful conditions is sufficiently timely to prevent gratuitous pain57. Moreover, asymptomatic conditions should be diagnosed and treated before they progress to the point that they cause pain, preventable loss of tooth structure, or result in a previously restorable tooth becoming non-restorable58.
Delaying or deferring restorative care in a correctional setting simply leads to an increase of oral pain, infection, or tooth loss. As a result, dental services become inundated with emergency dental sick-call requests and more procedures to replace lost teeth with removable prosthetics.59 58. To summarize prisoners who complain of dental pain should be seen by a midlevel or advanced level provider within 24 hours of receipt of the IIR and by a dentist within 72 hours. Those who have been started on antibiotics for a dental infection should be treated by a dentist while there is a therapeutic blood level of the antibiotic. Providing repeated courses of
56 Shulman & Sauter, 2012, p. 68. 57 “Providing restorations and periodontal care to offenders is the priority in eliminating active dental disease. The interval between appointments should be brief enough that teeth that were initially categorized as requiring routine care do not become urgent care problems” [Shulman et al. at 57]. 58 Not only must restorations (fillings) be provided, but treatment should be timely so that teeth that could be filled will not deteriorate to the point that extraction is necessary. Systematic untimeliness in providing routine care is, in effect, a de facto extraction only policy and thus, highly problematic [Shulman et al. at 8-11]. 59 NCCHC Guidelines, p. 170 (emphasis added).
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antibiotics as a substitute for dental treatment is below the standard of care and is inappropriate under all circumstances.
E. Record Keeping 59. Routine examinations should be documented with a sequenced treatment plan and the results of the oral soft tissue (oral cancer) examination should be described. Urgent care encounters should be documented using the SOAPE format, a standardized protocol for recording the patient consultation. V. METHODOLOGY 60. In looking at dental care in a correctional system, a useful methodology should focus on policies and practices of the system and the way they create risk for the prison population. Consequently, reviewing the treatment of individual prisoners is not an end, but simply a means to illuminate the issues that relate to systemic problems. 61. To assess the care provided to prisoners, I reviewed the dental charts of the plaintiffs as produced by NDCS. Because of the difficulties inherent in trying to copy x-rays I was unable to review x-rays except for Plaintiffs Galle and Gunther, whose paper files I was able to review onsite. I noted the results of the intake examination when it was present in the dental chart. I reviewed each IIR / kite and noted when the patient was seen, and what treatment was provided. 62. Pursuant to a Notice of Site Inspection, I was able to review selected class member files from four NDCS facilities. I selected 20 records from three prisons (DEC, NSP, CCC-L) and 19 from LCC. I toured the dental facilities at DEC, NSP, and LCC in person on October 22 and 23, 2018. I did not tour CCC-L’s dental facilities because CCC-L used DEC’s dental facilities for patient care. I reviewed the patient files selected from each facility on site
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and performed further review after they had been duplicated by NDCS.60 The focus of my review was the period from 2014 to the present although where it was available, I reviewed the plaintiffs’ entire dental history. Some exemplars that bear on systemic program inadequacies are summarized below.
63. I explicitly assume that the entries in the dental charts are valid and complete, and conversely, that putative events that do not appear in the dental chart did not happen.61 I computed wait times by subtracting the date of the intake examination from subsequent examination or treatment date using Microsoft Excel 2016. Where the clinical record notes treatment but the kite that requested the treatment was not in the dental or medical charts, I assume this reflects poor record keeping.
64. To assess the overall quality of NDCS’s dental program, including the timeliness of addressing complaints of pain, identifying disease, arresting disease progress, and rehabilitating affected teeth, I reviewed dental records of the 11 plaintiffs as well as those of the randomly selected prisoners. In my experience evaluating correctional and institutional care, I found that interviews with prisoners regarding their dental treatment are time-consuming, logistically difficult, and need to be corroborated by a record review. Consequently, I spent the limited time that I was allowed at the prisons on document and record reviews and interviewed only two prisoners: Plaintiffs Galle and Gunther.
65. I did not focus on reviewing prisoner’s x-rays because of my limited time at each facility because I was evaluating the overall quality of the NDCS dental care system, not the quality of the care provided to any individual prisoner. Instead, I relied on the charting and
60 I assume that the charts were duplicated the day I selected them (10/22/18) unless noted otherwise. 61 I have audited dental charts for more than 30 years and it is a canon of auditors that, “if it isn’t in the chart, it didn’t happen”.
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treatment plans of the dentists who had an opportunity to review x-rays and examine the prisoners. Thus, if a dentist charted a tooth to be filled, I presumed that a filling was appropriate treatment. If a periodontal assessment or periodontal probing is not documented, I assumed that it was not done. Similarly, I assumed that a tooth charted for extraction should be extracted.
66. In assessing timeliness, I started the ‘clock’ on the date recorded by the prisoner on the Inmate Interview Request (“IIR”). If that date was not legible, I used the date the IIR was received by the Nursing Department. I stopped the clock when the prisoner was examined by a dentist to assess the problem or, if an extraction or filling was indicated for a painful tooth, when the tooth was extracted or filled. I use Excel 2016 to compute waiting times. VI. FINDINGS
A. Intake Dental Examination 67. Medical Protocol (“MP”) 18 (2018), states that new commitments receive an oral examination and hygiene instructions within 30 days (¶A6(b); NDCS 078391). Prisoners receive an initial (intake) dental examination at the Diagnostic and Evaluation Center (“DEC”). I observed Dr. Ngyuen, perform a soft tissue examination and a visual examination with a mouth mirror. She viewed a panoramic (panoral or Panorex) x-ray and charted the number of decayed, missing, and filled teeth, determining whether the prisoner has any urgent or emergent treatment needs. No intraoral x-rays were taken, and she did not perform periodontal probing.
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68. The examination is deficient for two reasons. First, it is performed without periodontal probing62 and the panoramic radiograph (without intraoral x-rays)63 is used to determine bone loss; which, as discussed earlier, is inadequate for assessing periodontal bone loss. The inadequate initial examination places all dentate prisoners at risk of harm from undiagnosed and underdiagnosed periodontal disease.
69. Second, while a panoramic radiograph can be used to diagnose advanced caries and certain jaw abnormalities, a proper caries exam should employ intraoral (e.g., bite wing radiographs)64 or early and moderate caries will be underdiagnosed.65 This is particularly problematic since per NDCS policy, these prisoners will not be eligible to receive a more thorough examination and treatment for Priority III conditions for 12 months. While incipient caries (Fig 1A, supra) is potentially reversible, caries that has breached the dentin tends to progress; with the rate of progression varying with factors such as saliva quality and quantity, plaque characteristics, acidity of the oral cavity.66 The inadequate initial examination places all dentate prisoners at risk of harm from undiagnosed dental caries.
62 For example, the American Dental Association defines a Comprehensive Oral Examination – New Patient (Procedure Code D 0150) as including “the evaluation and recording of dental caries, missing or unerupted teeth, restorations, existing prostheses, occlusal relationships, periodontal conditions (including periodontal screening and/or charting), hard and soft tissue anomalies, etc.” CDT 2015 Dental Procedure Codes at 9. American Dental Association; Chicago, Illinois, 2014. (“CDT 2015”). Emphasis added. 63 To illustrate this, the April 2018 Daily Dental Production Report for DEC shows that only one x-ray was taken for each prisoner examined at intake. 64 Stefanac, p. 12. 65 Dr. Ngyuen said that while bite wing radiographs are not taken at the intake examination, they are taken at the routine examination – which may be requested by IIR when the prisoner emerges from quarantine. 66 Shulman and Cappelli, pp. 2-3.
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B. Staffing 70. “Inadequate staffing is typically the reason for untimely care. Thus, it is critical that the dental program be adequately staffed with the optimal mix of personnel.”67 71. In 2006, the NDCS reported 4,389 prisoners and six dentist and four authorized dental hygienist dentist positions all of which were filled; or 732 prisoners per dentist and 1,098 per dental hygienist FTE.68 72. The NDCS Medical Director testified that there are currently three full-time dentists who are state employees and “contract services” at the other facilities69. There are seven FTE dental positions authorized only three of which are filled.70 Of the four vacancies, three were vacant for more than two years.71 In addition there are contract dentists working at 0.8 FTEs at OCC, 0.4 FTEs at York, and 0.4 FTRs at Tecumseh72; for a systemwide total of 4.6 FTEs. Based on the 2017 average daily population of 5,22973, there are 1,137 FTEs per prisoner – a 36% decrease in dentist staffing since 2006. 73. Dr. Deol testified that gaps in dentist staffing did not affect the department’s ability to provide dental services although gaps in hygienist staffing delayed cleanings.74 Based
67 Shulman JD, Makrides NS, Lockhart A (2017). The Organization of a Correctional Dental Program. In Cohen F. (Ed.), Correctional Health Care: Practice, Administration, and Law (Chapter 8, pp. 8-4, 8-5). Kingston, NJ: Civic Research Institute. 68 Nebraska Department of Correctional services response to National Institute of Corrections (NIC) Survey on Correctional Dentistry, December 2006, pp. 3, 7. 69 Deol Tr. 58:4-16. 70 Deol Tr. 59:4-9. 71 Deol Tr. 59:19-25. 72 Deol Tr. 63:18-64:13. 73 NDCS Average Daily Population, 2017. Viewed 12/28/2018 at https://corrections.nebraska.gov/public-information/ndcs-research-division. 74 Deol Tr. 43:4-44:9.
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on a staffing model developed before he arrived at NDCS, he testified that an appropriate staffing ratio is 1,200 patients per FTE dentist.75
74. The Chief of Dentistry position has been unfilled for about two years since the previous Dental Director was let go and Dr. Deol has been directly supervising the dentists.76 Of the four vacant state employee dentist positions, three have been vacant for more than two years.77 He attributed difficulty in filling state employee dentist, dental hygienist, and nursing positions to salaries that were not comparable to the marketplace.78,79
75. Dr. Deol testified that there are three funded dental hygienist positions of which two are filled and there is an additional 0.2 FTE contracted dental hygienist.80 Note that in 2006 there were four dental hygienist positions – all of which were filled for fewer prisoners.
76. To summarize, even if all the vacant state-employed positions were filled there would not be enough treatment capacity to provide dentistry at the standard of care as previously described. In fact, the effect of the changes for Medical Protocol 18 in 2016 was to decrease the amount of treatment required – partially compensating for inadequate dentist and dental hygienist staffing.
75 Deol Tr. 60:20-62:20. 76 Deol Tr. 18:10-19:18. “Q: Are efforts being made to fill the position? A: Yes, they are.” 77 Deol Tr. 59:4-25. 78 Deol Tr. 253:4-25. 79 As Court Expert / Monitor in the Perez case, I saw that “[a]s the result of the [court ordered] salary increases, the statewide vacancy rate for staff dentists plummeted from 53% in January 2007 to less than 10% in May 2008”. Shulman JD. Structural Reform Litigation in Prison Dental Care: The Perez Case. Correctional Law Reporter 25(2) August-September 2013, p. 20. 80 Deol Tr. 64:17-25.
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77. That NDCS was unable to fill dentist positions – including the Chief of Dental Services for at least two years suggests that the salaries offered are not competitive and must be increased as part of remediation.
C. Scope of Dental Services 78. MP 18 (2018)81 classifies dental services as Priority I (emergency care)82, Priority II (urgent care)83, Priority III (routine care)84, and Priority IV85. Non-covered services include elective procedures, orthodontics, fixed bridgework or cast crowns for cosmetic purposes, implants, dentures for new commitments until a minimum of 24 months have been served, and the earliest parole or mandatory discharge release date is more than six months away86, extracting asymptomatic third molars, and periodontal diagnosis and treatment (id. at A2 (b) 3). Several aspects of the Protocol are highly problematic. 79. MP 18 (2018) states that “[w]ithin the limits of available dental resources, care and treatment will be provided consistent with the following four priorities and listed examples. The dental practitioners may use their professional judgment to upgrade or down grade the
81 The priorities and non-covered services were unchanged from 2016 to 2018; however, there were changes from the 2015 policy that will be addressed infra. 82 Incapacitating pain, facial swelling, oral-facial trauma, suspected serious pathological conditions, and profuse bleeding. [Id. at ¶ A 2(b) 1]. 83 Extraction of non-restorable, symptomatic teeth, placement of sedative restorations in grossly decayed teeth, pulpotomy or pulpectomy, Prescription of medications as appropriate, and gross scaling and debridement of calculus. [Id. ¶ A 2(b)2; NDCS 078390] 84 Routine non-acute care for conditions that are not of an urgent nature [id. ¶ A 2(b) 3; NDCS 078390-1]. 85 May be scheduled after all are met or as medically indicated. Prosthodontic care (dentures) is reserved for patients with NDCS length of stay greater than two (2) years and mandatory release date is no more than six (6) months. Id. ¶ A 2(b) 4; NDCS 078391. 86 Exceptions may be granted by the Chief of Dental Services of designee. Id. ¶ A 3(e); NDCS 078391.
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priority of a patient's dental condition.87 Dr. Deol explained that this means that if there is

insufficient staffing, Priority IV care may not be provided for some period.88 Furthermore, he

said that there have been “gaps in service” resulting from insufficient dental resources.89

80. To summarize, the scope of dental services provided by NDCS is inadequate. It is

below the community standard and conflicts with Nebraska Revised Statute 83-4. Moreover,

recent changes in Medical Protocol 18 degraded the dental program to the level of a third-world

nation.

1. Treatment Restrictions (Quarantines)

(a)

One-Year Waiting Period for Routine Services

81. Only patients with an NDCS length of stay greater than one year are eligible for

Priority III (i.e., non-urgent) care.90 The effect of this is to impose a one-year quarantine on all

prisoners during which they are not eligible to receive treatment for dental disease until the

conditions become Priority II; that is, cause pain.91 Moreover, a prisoner is released on parole

and then re-incarcerated, the restriction period starts again.92

82. The current Medical Protocol (MP 2018) represents a substantial retrenchment of

the dental program since 2016 which redounded to the prisoners’ detriment. Not only are they

87 MP 18 (2018), ¶A 2(b).
88 Deol Tr. 42:7-43:3.
89 Deol Tr. 43:4-44:9
90 This 12-month restriction or quarantine period was not a prerequisite for receiving Priority III (non-urgent or routine) care in the 2015 protocol (NDCS 076338).
91 Dr. Deol testified that a prisoner who is who is released on parole and then reincarcerated, the one-year waiting period restarts (Deol Tr. 44:18-45:14) and he could not explain the purpose of the one-year restriction for routine care (Id. 46:15-21).
92 Deol Tr. 44:18-45:9. Moreover, Dr. Deol was not sure about the purpose of the restriction, did not know when it was added to the protocol, or whether it was consistent with American Correctional Association or National Commission for Correctional Health Care standards. Id. 46:19-48:1.

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without clinical basis but they fly in the face of well-established dental science93, but the NDCS Medical Director was unable to explain the reason for the one-year restriction and feels that it is inappropriate. Deol Tr. 48:7-16.
83. As discussed supra, periodontal conditions are generally painless (until they progress to an abscess) and it is more likely than not that prisoners may suffer progression while waiting for their quarantine to end. While the rate of progression is variable in a population, in my experience as an oral epidemiologist, it is more likely than not that asymptomatic dental disease can progress to the point that the tooth becomes painful or the tooth becomes more difficult to repair.94 As a point of comparison, there is no such quarantine for routine dental care under the Nebraska Medicaid Program.
84. In short, the one-year quarantine policy is contrary to the canons of dental science and places prisoners at risk of preventable loss of tooth structure, periodontal support, resulting in pain. Simply put, it has no clinical justification and represents a pernicious attempt on the part of NDCS to reduce the patient load to accommodate inadequate staffing.
93 See discussions of caries and periodontal disease supra. 94 Typically, as more tooth structure is destroyed by decay, placing a filling may become increasingly difficult or even non-restorable. This is especially true in an incarcerated population where (as discussed supra) prisoners are taking medications that reduce salivary flow (which promotes the development of decay) or have diabetes which characteristically causes a reduction in salivary flow. Srebny et al (1992). Xerostomia in diabetes mellitus. Diabetes Care 15:7, p. 900.
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(b) Prosthetics (Dentures) Eligibility 85. MP 18 (2018) classifies dentures as a Priority IV covered service (¶A 4 - NDCS 078391) and imposes a 2-year restriction for receiving dentures.95,96,97 This represents a change from the 2015 Protocol which does not impose such a quarantine but rather states that dentures may not be fabricated for prisoners with a sentence length of less than 24 months.98 A prisoner with chewing difficulty who is otherwise eligible for dentures will have to endure pain and discomfort gratuitously. While this policy may defer workload, it has no clinical justification. In fact, The NDCS Medical Director testified that he did not know the purpose of the restriction or whether it was consistent with ACA or NCCHC standards (Deol Tr. 48:21-49:25) and he believes that it is appropriate. Deol Tr. 50:10-11. 86. Moreover, while the Protocol mentions a waiver process, it is highly problematic because the basis for approving a waiver is not stated. The NDCS Medical Director testified that he was not sure if the availability of the waiver was communicated to the patient in writing. Deol Tr. 50:16-51:15. Moreover, since there is currently no Chief of Dental Services, Dr. Deol is the
95 MP18 (2018), A2(b)3e. “Except in specific cases, dental prosthesis will not be fabricated for new commitments until 24 months minimum have been served and the earliest parole or mandatory discharge release date is more than six months away”. Waivers must be approved by the Chief of Dental Services/Designee. NDCS 078391. 96 Note that the Nebraska Dental Medicaid Program does not require that beneficiaries wait 24 months before being eligible for dentures. Medicaid Dental Fee Schedule, p. 11. 97 As with the one-year quarantine, the prosthetics quarantine restarts if a prisoner is released on parole and is reincarcerated; moreover, he did not know the purpose of the quarantine. Deol Tr. 48:17-49:13. 98 “Except in specific cases, dental prosthesis will not be fabricated for new commitments with incarceration of less than 24 months minimum and earliest parole or mandatory discharge release date of less than six months when Class IV priority is next service.” Waivers must be approved by the Chief of Dental Services/Designee. MP 18 (2015) A2(b)3e; NDCS 076339.
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decision authority; and to the best of his recollection, he has not received a request for an exception. Id. 51:11-52:6.99
87. MP 18 (2018) specifies that NDCS will “only replace dentures or partials every
five years when deemed necessary by a Dentist. Any exception will be by the approval of the
Chief of Dental Services/designee.”. Id. ¶14 (d) – NDCS 078392. The NDCS Medical Director
did not know what the intention of the policy was nor whether it was consistent with ACA or
NCCHC standards. Deol Tr. 55:12-56:6. Moreover, as with the 2-year quarantine, the
availability of requesting an exception is not communicated to the patient in writing. Id. 56:24-
57:1.
88. To summarize, the restrictions for prosthetics care have no clinical justification
and represent an attempt on the part of NDCS to reduce the patient load to accommodate
inadequate staffing. These changes redounded to the detriment of NDCS prisoners who may be
subject to prolonged chewing difficulty and gratuitous pain.
2. Diagnosis and Treatment of Periodontal Disease 89. Protocol MP 18 (2018) classifies periodontal diagnosis and treatment as noncovered services. [Id. at ¶A2(b)3(f); NDCS 078391].100,101 The NDCS Medical Director
99 He testified that he did not know if such an exception has ever been granted. Id. 53:9-12. However, he disapproved a request for a waiver 7/6/18 (see discussion of Valerie Thorpe infra). 100 American Correctional Association Standard 5-6A-4360 requires “a full dental examination (excluding intra-system transfers) by a dentist within 30 days [of admission]”. “The dental examination should remain current upon patient request, include a periodontal examination (Periodontal Screening and Recording [PSR] or Community Periodontal Index of Treatment Needs [CPITN]) and taking or reviewing and updating of the patient’s dental and related history.” Performance Based Expected Practices for Adult Correctional Institutions, Fifth Edition, August 2018, p. 176. 101 Periodontal diagnosis and treatment were not classified as non-covered services in the 2013, 2014 or 2015 Protocols. Rather than being classified as a non-covered service, the “[i]nitial treatment phase of periodontitis II, Ill, IV including scaling, root planing and oral hygiene instruction” was classified as Priority II (schedule for treatment as soon as possible) [A2(b)2;
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confirmed that NDCS prisoners are ineligible for periodontal diagnosis and treatment, although
he was not sure of the purpose of the restriction. Deol Tr. 53:16-54:3. Moreover, he was not sure
if this restriction was consistent with ACA of NCCHC standards. Id. 54:12-17.
90. As discussed earlier, not only are periodontal diagnosis and non-surgical
treatment accepted professional standards, but early diagnosis and treatment of periodontal
disease are important since the prevalence of moderate to severe periodontal disease in
correctional populations is higher than in the free population (Makrides et al., p. 566; Clare, p. 95) and often not associated with pain102 (Makrides et al., p. 560). Furthermore, the lack of periodontal diagnosis and treatment place diabetics at particular risk of harm.103 As a point of
comparison, periodontal diagnosis and non-surgical treatment are allowed for adults under the Nebraska Medicaid Program.104 The removal of periodontal diagnosis and treatment from the
covered services in 2016 marked the nadir of the NDCS dental program.
NDCS 076338]. That properly recognizes the importance of identifying and treating periodontal disease as early as possible. Simply put, the current protocol, is willfully blind to periodontal disease. 102 Typically, pain comes in later stages (after irreversible damage has been done) in the form of a periodontal abscess. 103 See, for example, Herring ME and Shah SK (2006). Periodontal Disease and Control of Diabetes Mellitus. J Am Osteopath Assoc 106:416–421; Patel MH, Kumar JV, Moss ME (2013). Diabetes and tooth loss. JADA 144(5);478-485 (adults with diabetes are at higher risk of experiencing tooth loss and edentulism than are adults without diabetes); and Teeuw WJ, Gerdes VE, and Loos BG (2010). Effect of periodontal treatment on glycemic control of diabetic patients. Diabetes Care 3 (3) :421-427 (periodontal treatment leads to an improvement of glycemic control in type 2 diabetic patients). 104 For example, gingivectomy, periodontal scaling and root planing, and periodontal maintenance are allowed. 471-000-506 Nebraska Medicaid Practitioner Fee Schedule for Dental Services, pp. 10-11. Note that unlike NDCS which allows one prophylaxis per year, Medicaid allows one prophylaxis per 180 days. (Procedure D1110, p. 3). Visited 10/27/2018 at http://dhhs.ne.gov/medicaid/Documents/471-000-506-7-18.pdf.
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91. While dentists occasionally perform a periodontal assessment at intake, they rarely document periodontal probing105 or plan periodontal treatment. In addition, and dental hygienists generally do not document periodontal probing; a departure from the standard of practice of the dental hygiene profession (ADHA Standards, pp. 9-10). This failure to diagnose and appropriately treat periodontal disease placed the dentate106 plaintiffs as well as all other NDCS prisoners at risk of harm.
92. The NDCS Medical Director testified that NDCS currently does not provide periodontal care and he was not sure of the purpose of excluding periodontal diagnosis and treatment from covered services (Deol Tr. 53:19-54:3), although he feels that it is inappropriate. Id. 54:18-22. Moreover, he was not sure of this exclusion was consistent with ACA or NCCHC standards. Id. 54:12-17.
93. While periodontal diagnosis and treatment and are non-covered services starting from MP 18 (2016), NDCS allows a dental prophylaxis (“prophy”) every 12 months. This is not a periodontal procedure but a preventive procedure and is typically a precursor to routine dental treatment.107 In fact, while the Daily Dental Production Report has a column for “prophy” it does not have one for any periodontal procedure.
94. By proscribing periodontal diagnosis (starting with MP 18 (2016)), the NDCS dental program descended to the level of third-world dentistry, deviating from decades of standard dental practice. Prohibiting a dentist from diagnosing periodontal disease makes no more sense than prohibiting a physician from diagnosing hypertension. As discussed supra,
105 This is an accepted professional practice. See discussion of the standard of care in Section IV. 106 Individuals who are without teeth are not affected by periodontal disease. 107 An Adult Dental Prophylaxis (American Dental Association Procedure Code D1110) is a preventive procedure defined as “[r]emoval of plaque, calculus and stains from the tooth structures in the permanent and transitional dentition. It is intended to control local irritational factors.
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diagnosing periodontal disease is the standard for the community, the Nebraska Medicaid Program, and correctional accrediting organizations.
95. While prisoners are generally expected to request dental care via IIR, they first must be aware that they need care; this is particularly critical with asymptomatic conditions such as periodontal disease. Specifically, patients with undiagnosed periodontal disease will not request care if they are not told they are affected.
96. As with periodontal diagnosis, proscribing periodontal treatment is problematic since absent periodontal treatment, disease may progress to the point that alveolar bone and periodontal ligament are lost, resulting in the formation of periodontal pockets (Figure 2 supra). Moreover, the advanced lesion, once formed, can progress and the associated bone destruction may result in tooth loss (Cappelli and Shulman, p. 18).
97. While “periodontal treatment” is a non-covered service in MP 18 (2018), “routine dental scaling”108 is a Priority III service [¶A3(b); NDCS 078390].109 In contrast, the 2015 Protocol allows for the “[i]nitial treatment phase of periodontitis II, Ill, IV110 including scaling, root planing and oral hygiene instruction.” [¶A2(b)2; NDCS 076338]. It is noteworthy that the pre-2016 Protocols elevate periodontal treatment to Priority II; that is, “schedule for treatment as soon as possible” [id.]; recognizing the importance of early control of periodontal disease.111 As
108 While the Protocol does not define “routine scaling”, I take this to mean a dental prophylaxis. 109 Since newly admitted prisoners are subject to the 12-month quarantine, they will not be eligible to request a prophylaxis for 12 months. 110 Mild, moderate, and advanced periodontitis, respectively. 111 Note that dental prophylaxis is distinct from periodontal treatment and is classified as Priority III. [¶A2(b)3; NDCS 076338].
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a point of reference, the Nebraska Medicaid program allows gingivectomy or gingivoplasty, periodontal scaling and root planing, and periodontal maintenance.112
98. To summarize, NDCS’s policy of defining periodontal diagnosis and treatment as excluded services to compensate for inadequate dental staffing was done at the expense of its prisoners’ oral health. This policy is malign, and its consequences are latent and cumulative. The NDCS dental program has departed from the mainstream of American dentistry subjecting prisoners to risk of harm.
3. Inadequate Treatment of Chewing Difficulty 99. Partial and complete denture construction and repair are classified as Priority IV services; that is, they “may be scheduled after all *-other priorities are met or as medically indicated.” “[e]xcept in specific cases113, dental prosthesis will not be fabricated for new commitments with incarceration of less than 24 months minimum and earliest parole or mandatory discharge release date of less than six months when Class IV priority.” ¶A2(b)4; NDCS 076338-9. 100. A prisoner must wait 24 months to be eligible for dentures. There no such limitation in the Nebraska Medicaid Program even though Medicaid eligibility may be intermittent. [Medicaid Dental Fees at 12-13]. However, this limitation not only applies to fabricating new dentures it applies to “[r]epair or reline partial or full dentures.” Protocol MP 18, 2018 at ¶A2(b)4b; NDCS 078390-91. While there is a provision for waiver, the grounds for a waiver are not spelled out.114
112 Procedures 6-003.02E1, 6-003.02E2, and 6-003.02E4, respectively. 471-000-506 Nebraska Medicaid Practitioner Fee Schedule for Dental Services at 10-11. 113 “Chief of Dental Services/Designee approval must be obtained.” Id. 114 Dr. Deol testified that the availability of exceptions to prosthetics policy is not communicated to patients in writing. Deol Tr. 56:17-23.
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101. While an edentulous patient may be ready for complete dentures without additional dental procedures, partial denture fabrication is generally (and appropriately) the last step in a treatment plan115, the cumulative effect of delays in accessing appointments for an examination, fillings, and periodontal treatment may result in prolonged chewing difficulty. This, when combined with the 12-month quarantine further delays partial denture treatment. Moreover, the prohibition of periodontal diagnosis and treatment makes the prognosis for some partial dentures poor. As a point of reference, the Nebraska Medicaid Program has no such restriction.
102. To summarize, while NDCS’s policy of denying dentures to prisoners who have not been incarcerated two years may reduce NDCS’s dental workload to compensate for inadequate staffing, it has no clinical basis and gratuitously prolongs prisoners’ chewing difficulties. The harms that are associated with chewing difficulties are, for example, pain (if natural teeth cut into oral tissues during chewing), digestive problems (if food is swallowed without adequate chewing), and dietary imbalances (if prisoners eat a soft, high-caloric, lowfiber, diet).116 VII. OPINIONS AND RATIONALE
103. In my opinion, based on a reasonable degree of dental probability, the deficiencies described herein can be remediated by a classwide solution comprising rewriting policies, increasing staffing, raising salaries, and appropriate systemwide monitoring.
A. Opinion: Inadequate Initial Examination 104. In my opinion, based on a reasonable degree of dental certainty, the NSCS’s
inadequate policies and practices for diagnosis of caries and periodontal disease at the intake
115 “Priority IV - may be scheduled after all other priorities are met or as medically indicated. MP 18 (2018) ¶A 2(b) 4; NDCS 078391. 116 See discussion of chewing difficulties supra.
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(initial) examination places all new prisoners at risk of underdiagnosed caries and periodontal disease and places them at an unreasonable risk of receiving untimely and inadequate care; especially considering the one-year quarantine policy. Specifically, NDCS’s failure to perform consistent periodontal assessment to include documented periodontal probing places all dentate prisoners at risk of harm from undiagnosed periodontal disease.
1. Inadequate X-rays 105. In my opinion, based on a reasonable degree of dental certainty, the policy or practice of diagnosing caries at intake using a panoramic radiograph without intraoral x-rays subjects prisoners to risk of harm and caries progression due to systemic underdiagnosis of caries. Similarly, the policy or practice of basing a treatment plan on bite wing x-rays without a panoramic x-ray places prisoners at risk of underdiagnosed dental disease. Finally, a sequenced treatment plan is often not produced at the intake examination and as the result, treatment is episodic until a prisoner is able to obtain a routine examination appointment.
(a) Basis for Opinion 106. As discussed supra, the initial examination bases the charting and treatment plan on a panoramic x-ray (panograph, or Panorex) without intraoral x-rays is below accepted professional standards since interproximal decay and periodontal bone height cannot be assessed accurately. This will more likely than not result in under diagnosis of caries and periodontal disease. This is exacerbated by the 1-year quarantine since asymptomatic conditions may progress during the quarantine period. 107. The standard of care for the examination and treatment plan for a new adult patient requires the use of a panoramic x-ray or a full mouth x-ray series. Dr. Deol testified that
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while a panoramic x-ray had not been required at NDCS, “[we] just made a change in policy on the intake process. We started doing the panoramics and initial exam is done by the dentist”.117
108. Plaintiff Zoubek (also known as Zoe Rena) was examined at intake 8/3/15 and a treatment plan was established based on bite wing x-rays and a visual examination (NDCS 015748, NDCS 015760). Neither a panoramic nor periapical x-rays were taken at that time. An initial examination and treatment plan made without a panoramic x-ray can overlook pathology and (as illustrated in Plaintiff Zoubek’s clinical history) and result in untimely treatment of dental abscesses.
109. The initial charting shows that tooth #14 was marked for extraction and # 3 and 18 marked as “evaluate” (NDCS 015760).118 However, without a panoramic119 or periapical xray, teeth # 3, 14, and 18 cannot be evaluated fully. Additional x-rays might have shown radiologic evidence of an abscess which would prompt a prudent clinician to expedite the extractions to remove a source of infection. Failure to do so placed Plaintiff Zoubek at risk for painful infections that dominated her dental treatment for more than a year.
117 Deol Tr. 30:22-32:8. While he testified that the change was made in “this July” [July 2018] and was written down in the dental protocol (id. 31:13-20), the most recent protocol provided to me (MP 2018 – last revised 3/18 and signed by Dr. Deol) states that “[r]adiological procedures will include Panograph (when indicated) and additional films as required to make the diagnosis (¶7 NDCS 078392). Emphasis added. He explained that he initiated the change because “I felt that – we needed to have some documentation initially people coming into the system to see what the dental pathology was, rather than relying on clinical judgment so we have some basis to go by in the future treatments.” Id. 31:25-32:5. Emphasis added. 118 Tooth #3 was also indicated for extraction; however, when this was done cannot be determined since the date of the notation was not shown. 119 It is interesting to note that on 6/1/16 (almost 2 years after her initial examination) the Medical Director authorized a referral to a private dentist for a panoramic x-ray to assist in the diagnosis of dental abscesses (NDCS 015740).
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110. Plaintiff Norris received an intake examination 4/22/14 based on bite wing xrays; however, there is no documentation that a panoramic x-ray was taken at that time (NDCS 011637, NDCS 011654)
111. Plaintiff Galle received an intake medical screening 3/10/10 which noted that his dental fillings needed to be fixed (NCDS 003751). The dental records did not contain an intake dental examination with x-rays, so I presume one was not done or it was lost due to inadequate record keeping.
112. Plaintiff Gunther had an intake dental exam 4/22/05; however, there is no documentation that x-rays were taken at that time (NDCS 228500).
113. Plaintiff R.P.’s charting form is blank and there is no indication that an intake dental exam was performed or that x-rays were taken (NDCS 075083). The record reports that he received an evaluation by an NDCS dentist 1/25/16; however, the examination was based on a panoramic x-ray and did not use bite wings (NDCS 075086).120
114. Plaintiff Curtright received an examination at intake that was performed with bite wing x-rays but without a panoramic radiograph (NDCS 001167).
115. Plaintiff Sabata was examined at intake 6/18/13 based on 2 bite wing x-rays and without a panoramic x-ray (NDCS 016860).
116. Plaintiff Cardeilhac had no initial exam and charting. The first chart entry dated 6/15/14 does not document that x-rays were taken (NDCS 073875).
120 The record reports, “[n]o visible caries […]” This is consistent with the absence of bite wing x-rays.
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117. To summarize, of 11 plaintiffs, three had only a panoramic x-ray taken121, four had only bite wing x-rays taken122, three had bite wings and a panoramic x-ray taken123, and four124 had no x-rays taken at the intake dental examination. As discussed supra, an adequate treatment plan for a new adult patient requires bite wings and a panoramic x-ray.
2. Inadequate Diagnosis and Treatment of Periodontal Disease 118. In my opinion, based on a reasonable degree of dental certainty, NDSC’s policies (i.e., excluding periodontal diagnosis from allowed treatment and the 12-month quarantine), procedures and practices for diagnosing periodontal disease at the initial and periodic examinations (i.e., lack of documented periodontal probing and lack of intraoral x-rays at the initial treatment plan), as well as the policies restricting periodontal treatment are below accepted professional standards and subject prisoners to substantial risk of serious harm by delaying diagnosis and treatment. Moreover, treatment plans rarely include periodontal treatment other than oral prophylaxis (if that); increasing the likelihood of preventable and disease progression. Periodontal diagnosis and treatment are not minimally adequate and below accepted professional standards. They subject prisoners to an increased likelihood of preventable and disease progression. 119. In my opinion, based on a reasonable degree of dental certainty, NDCS’s failure to provide non-surgical treatment of periodontal disease places prisoners at an unreasonable risk of receiving untimely or inadequate care. The NDCS’s failure to require documented periodontal probing at initial and periodic examinations (a standard of care in dentistry) places all prisoners at risk of suffering preventable pain and tooth morbidity by underdiagnosing and failing to
121 Plaintiffs Sweetser (Sweetser 2), Griswold (NDCS 003938) and Reeves (NDCS 074127). 122 Plaintiffs Zoubek, Norris, Cutright, and Sabata. 123 Sweetser, Griswold, and Reeves. 124 Plaintiffs Galle, Pathot, Cardeilhac, and Gunther.
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appropriately monitor periodontal disease. Moreover, even when moderate or advanced periodontal disease is identified, the appropriate non-surgical procedure neither ordered nor performed.
120. The diagnosis and treatment of periodontal disease are non-covered services since the 2016 version of Protocol MP 18. While this may compensate for inadequate dentist staffing, it redounds to the detriment of the prisoners for whom NDCS is responsible. Early diagnosis and monitoring periodontal disease progress are well-established responsibilities of dentists and dental hygienists. By classifying the diagnosis of periodontal disease as a non-covered service, the NDCS deviated from the community and correctional standard of care and regressed to the level of third world dentistry.
121. As discussed supra, the initial examination (as well as periodic examinations) does not include an adequate (or sometimes any) periodontal assessment. This is consistent with Medical Protocol 18 since 2016 that categorizes periodontal diagnosis as a non-covered service. While the Health Services Dental Record enables the dentist to classify “stain & tartar” as light, medium, or heavy, this categorization is inadequate because it conflates stain (a cosmetic issue) and tartar (calculus) calcified deposits that can cause gingival and periodontal inflammation. This classification does not specifically address the possible presence of periodontal disease.
122. Plaintiff Curtright was examined 2/5/14 and assessed as “Perio type 0 – oral hygiene excellent” (NDCS 001163). Although he was seen 2/24/14, 3/2/14, 4/6/16, 2/27/17, 3/2/17 (when he had a prophy performed by a dental hygienist), 8/30/17, and 8/31/17, (id.) there is no documented periodontal assessment or probing. This failure to document periodontal status is consistent with the revised Medical Protocol 18 that beginning 2016, classified periodontal
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diagnosis and treatment as excluded services.125 The point here is not that Plaintiff Curtright had periodontal disease in 2017 (which is not knowable from the dental chart) but that there was consistently inadequate documented assessment over a more than three-year period that placed him at risk of harm from undiagnosed periodontal disease.
123. Plaintiff Galle received an intake medical screening 3/10/10 which noted that his dental fillings needed to be fixed (NCDS 003751). The dental records did not contain an intake dental examination, so I presume one was not done or was lost due to inadequate record keeping. None of the chart entries document a periodontal assessment. In fact, from the dental chart, one cannot tell if he has periodontal disease. It is the standard of care to diagnose and document periodontal disease. NDCS failed to do so placing Plaintiff Galle at risk of harm to include preventable pain, periodontal abscess, and tooth loss.
124. Plaintiff Zoubek/Rena was examined at intake 8/3/15 and was found to have light stain / tartar and was indicated for a prophy, extractions, and fillings. No periodontal assessment was documented (NDCS 015760). She requested a cleaning (prophy) 5/14/16 and again 10/30/16 (NDCS 015704) and was informed that she was on the list. She received the prophy 1/7/17 and the dental hygienist documented periodontal probing (NDCS 015700) - after 238 days. This is the first periodontal assessment she received in the 513 days she was in NDCS’s custody.
125. Plaintiff Norris requested a cleaning and examination 11/21/13 and was advised that NDCS does not provide cleanings for County Safe Keeps (NDCS 011678). She received an initial exam 4/22/14 – six months later. She was found to have medium and heavy stain and tartar; however, no periodontal assessment or periodontal probing was documented (NDCS
125 While he commended the dentist for extracting his tooth (NDCS 001163), he could not have been aware of the inadequate periodontal diagnosis.
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011637). The chart indicated that she was Type 2 diabetic (NDCS 011638) – a risk factor for periodontal disease.126 While she was seen for an extraction and post-operative follow-up, a periodontal assessment was not documented (NDCS 011641). At her 7/31/16 prophy appointment, the dental hygienist noted, the presence of 4-5 mm periodontal pockets and BOP (bleeding on probing); however, the note did not indicate which teeth the pockets and bleeding were associated with (NDCS 011654).127 Since that progress note, she was seen several times by the dental service; however, there is no mention of her periodontal condition. To summarize, her periodontal disease was ignored by the NDCS dental service.
126. Patient 23128 received an Initial Charting and treatment plan 6/3/14 and a fistula associated with #5 was noted (NDCS 123525, 123538). Neither a periodontal assessment nor an investigation of the source of the infection associated with the fistula was documented. On 11/23/15, severe periodontal disease was noted by a dental hygienist (NDCS 123538). Other than a prophy and a ‘debridement’ performed by the hygienist, neither a periodontal assessment was performed nor was periodontal treatment prescribed. At a 3/21/17 prophy appointment, an 8 mm periodontal pocket was noted in the area of #5 - the tooth that was diagnosed with a fistula on 6/4/14 (NDCS 123525). On 10/4/18 examination documented generalized bone loss associated with #2 and it was recommended that the tooth be extracted (NDCS 123538). The Dental Service failed to appropriately diagnose and timely treat Mr. Bean’s periodontal disease, allowing it to progress.
126 See discussion of the association between diabetes and periodontal disease supra. 127 See discussion of periodontal diagnosis supra. This failure to document periodontal disease appropriately is below professional standards; however; it is consistent with Medical Protocol 18 that categorizes the diagnosis of periodontal disease as an excluded service (NDCS 078391, ¶3f). 128 A key identifying the prisoner name and number for each of the non-named Plaintiffs discussed herein is attached as Exhibit 4
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127. Similarly, the failure to adequately diagnose the cause of the infection associated with the fistula that was identified 6/3/14 was below accepted professional standards and more likely than not allowed a possible infection to persist for more than three years.
128. Patient 6 was categorized as having Class 2 and 3 periodontal disease at intake (NDCS 119765). While he was provided with debridement and prophys (cleanings), at no time was there a periodontal assessment with documented periodontal probing. Nor was non-surgical periodontal treatment prescribed.
129. Patient 8 received an intake dental examination 9/14/17 and he was found to have medium stain and tartar. There was no periodontal assessment nor any documented periodontal probing. He was denied an appointment for the prophy that was prescribed on the treatment plan 2/6/18 but it was denied because per NDCS policy he does not qualify until he has been in NDOC for one year (NDCS 119844).
130. Patient 11 had an initial exam 6/26/17 that identified three teeth that needed to be filled, heavy stain / tartar and prescribed a prophy (NDCS 119870). Neither a periodontal assessment or probing were documented (Id.). Because of the 1-year quarantine, a prophy was delayed for at least a year.
131. Patient 13 received his initial exam 8/17/17 and was charted as having heavy stain / tartar. No periodontal assessment was performed nor was periodontal probing documented (NDCS 119894). Although he requested a prophy 8/16/17 (NDCS 119900) he did not receive a prophy by the time the chart was duplicated (more than 14 months) (NDCS 119899).
132. Patient 66 was examined 1/10/10 at intake and was found to have medium stain and tartar but there was no periodontal assessment performed (NDCS 086763). While he was
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examined and treated by dentists and dental hygienists many times there was no documented periodontal probing or standard periodontal assessment was noted.129
133. Patient 81’s initial exam 4/23/18 reported heavy calculus but no periodontal assessment was documented (NDCS 094249). He requested a cleaning 6/9/18 and was advised that “[y]ou have a year to have a cleaning. Due 4/19/18 (NDCS 093953). Inadequate diagnosis of periodontal disease combined with the 1-year quarantine to place him at risk of advancing periodontal disease.
134. Patient 44 was examined at intake 3/4/16 (NDCS 264817, NDCS 264819). He was assessed as having chronic periodontal disease; however, there is no documented periodontal probing to identify the specific sites of the disease despite periodontal probing having been mentioned in the progress note (NDCS 264819). While gross debridement and SRP (scaling and root planing) were prescribed and the gross debridement was performed, there is no documentation that SRP was performed at his 5/18/16 (NDCS 264819), 11/5/18 (NDCS 264819), or 11/29/18 (NDCS 264819) appointments. Moreover, the 11/29/18 progress note states “Tx. Completed” which I take to mean that the dentist felt that no further treatment was indicated.
135. Despite Patient 44’s having been diagnosed with chronic periodontal disease, none of his care providers documented periodontal probing. Furthermore, while scaling and root planing was prescribed, there was no indication that it was performed. This reflects the 2016 change in Medical Protocol 18 that classified periodontal diagnosis and treatment as excepted services.
129 The note at a 3/19/15 dental hygiene visit for a prophy stated” PI mod, BI mod” might possibly be shorthand for Plaque Index and Bleeding Index (NDCS 086771); however, these are not appropriate measures to monitor periodontal disease.
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136. Patient 57 was diagnosed with periodontal disease at Lincoln Regional Center130 and was prescribed an antibiotic and what is likely a topical antimicrobial solution (Chlorhexadine) according to IIRs submitted 5/11/17 and 5/14/17 (NDCS 265463, NDCS 265464). He complained of painful teeth 6/10/17 (NDCS 265463). He was seen by a dental hygienist 7/11/17 who performed a gross debridement and classified his periodontal disease as Class 3 Moderate Chronic Periodontal Bone loss (NDCS 265454). While a debridement was performed 7/11/17, a history of his treatment at Lincoln Regional Center nor periodontal probing depths were documented (NDCS 265454), While he was seen by a dentist 8/8/17 for a filling (NDCS 265454) and 7/18/18 for an extraction (NDCS 265454) – the last dental progress note, no periodontal treatment was documented. The failure of the Dental Service to treat Stevens’s periodontal disease is below professional standards, although lamentably consistent with Medical Protocol 18 that classifies periodontal treatment and diagnosis as excluded services.
137. Patient 58 received a prophy 10/15/18 and the dental hygienist noted that there was periodontal pocketing in the upper right with moderate bleeding; however, neither the specific tooth and site at issue nor the actual pocket (probing) depth was documented (NDCS 265472). This is below professional standards; however, it is consistent with Medical Protocol 18 that classifies the diagnosis and treatment of periodontal disease as excluded services.
138. Patient 60 was examined at intake 7/22/09 and was assessed as periodontal Class 2 or 3; although np periodontal probing is documented (NDCS 265581). While he was seen by a dental hygienist for a prophy 6/22/12 (NDCS 265594), 2/17/14 (NDCS 265626), 2/19/15 (NDCS 265626), and 11/6/17 (NDCS 265626), no periodontal assessment was performed. Moreover, there was no documented periodontal probing.
130 “The Lincoln Regional Center, a 250 bed, Joint Commission-accredited state psychiatric hospital, is operated by the Nebraska Department of Health and Human Services.” http://dhhs.ne.gov/behavioral_health/pages/beh_rc_lrcserv.aspx visited February 6, 2019.
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139. Patient 61 was seen by a dental hygienist 10/23/17 who noted that he had Class 2 periodontal disease with bone loss; however, neither the location of the bone loss nor periodontal probing was documented (NDCS 265655). He was seen by a dental hygienist for a prophy 2/12/18 and there was no follow-up on the bone loss and no documented probing (NDCS 265655). Furthermore, while he was seen by dentists 2/3/17, 9/25/17, 10/2/17 (NDCS 265655), 11/1/18, 2/2/18, 3/12/18 (NDCS 265654), 10/25/18, 10/29/18, and 11/1/18 (NDCS 265650), there was no mention of his periodontal condition. This willful ignorance is consistent with Medical Protocol 18’s classification of periodontal diagnosis and treatment as excluded services.
140. To summarize, failure to timely diagnose, treat, and monitor periodontal disease can lead to gratuitous pain, loss of bone that supports the tooth, and eventually tooth loss.
B. Delay / Denial of Routine Care 1. Opinion: 1-Year Restriction (Quarantine)
141. In my opinion, based on a reasonable degree of dental certainty, the quarantine policy for Priority III (routine) services set forth in Protocol #18 (beginning in 2016) is pernicious and contravenes the canons of dental science.131 Its effects are latent, cumulative, and pose a substantial risk of serious harm to all NDCS prisoners by delaying routine treatment; thus, increasing the likelihood of preventable and progression of caries and periodontal disease. A policy that puts prisoners at risk of harm notwithstanding the canons of dentistry is, simply put, cruel.
142. Patient 63 received a dental examination at intake 3/17/17 that included a panoramic and bite wing x-rays (NDCS 086972) and was found to have eight decayed teeth
131 In my career as a dental educator, I have taught these principles of oral epidemiology to successive cohorts of dental students. These principles are black letter dentistry.
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(NDCS 086968). The record reports that he had medium stain and tartar (calculus)132; however, neither a periodontal assessment nor PSR was documented. Although he was identified with eight decayed teeth at intake, per NDCS policy, he was ineligible to receive routine fillings for one year. This delay provided time for the decay to progress. While three teeth were eventually filled (#2 – 5/9/18, #15 - 6/14/18, #3 – 7/22/18), the remaining five teeth were not treated. He complained of tooth grinding and requested a “mouth piece” (night guard) 8/28/18 and was informed that they were available in the canteen (NDCS 087039). He should have been scheduled for a dental examination to identify the cause of his tooth grinding.133
143. Patient 65 was examined 8/14/17 using panoramic and BWX radiographs. No periodontal assessment was performed (NDCS090437). A charting (9/14/17) identified teeth # 18, 19, and 30 as having decay (NDCS090433); however, due to the 1-year quarantine, he was not eligible for routine care (e.g., fillings) for a year (NDCS090433). He reported a toothache 8/15/18 and when he finally saw a dentist, the tooth (#30 – that was identified with decay 9/14/17) was not restorable and was indicated for extraction. Moreover, given that he was taking three medications that have day mouth as a side effect (NDCS 090435)134, his decay would likely advance faster than if he were not taking them.
144. Patient 8 submitted an IRR 7/3/18 (“I need to get meds for my tooth”.) (NDCS 119838) and was seen by an RN 7/4/18 who explained that per patient dental policy is only
132 Stain is cosmetic while tartar (calculus) is a potential cause of gingival inflammation. These categories should not be conflated. 133 The non-dentist who responded to this kite made a clinical decision (that a dental examination is unnecessary despite a reported symptom). This is reckless. 134 See Jeske AH, Mosby’s Dental Drug Reference. Eleventh Edition. Elsevier, 2014. Clonidine (p. 318), Sertraline (p. 1190), and Trazodone (p. 1315). All have frequent day mouth as potential side effects.
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eligible for having teeth pulled until Sept 18, 2018 and after that, if tooth is restorable, could have dental work (fillings). This was a de facto extraction only policy.
145. Patient 19 was examined at intake 9/21/17 and 5 teeth that needed fillings and light calculus. No periodontal assessment was documented (NDCS 120015). He submitted an IIR to have cavities filled 12/5/17 and was advised that he would not be eligible until 9/14/18 (NDCS 120020). He submitted an IIR for a cleaning and to have cavities filled 6/4/18 and was told that he would not be eligible until 9/21/18 (NDCS 120019). He submitted another IIR 9/18/18 and was placed on the cleaning list (NDCS 120017). By the time the chart was duplicated (more than a year from his admission) he received neither fillings nor a prophy. This is especially problematic since the record reports that he is taking Mirtazapine (NDCS 12627), a medication that has dry mouth as a possible side effect (Jeske p. 873).135
146. Patient 69 was examined at intake 4/13/17 and was found to have light stain and tartar but a periodontal assessment was not documented (NDCS 08779). He requested a cleaning 2/1/18 and was advised that he would not be eligible until April (NDCS 08784). While he was seen 6/1/18 and 6/8/18 (NDCS 08779), however there is no documented periodontal assessment. Since neither the initial exam nor the subsequent treatment notes document a periodontal assessment it is not possible to determine if his periodontal health deteriorated during his quarantine.
147. Patient 70 submitted an IIR for a dental appointment 2/11/17 (NDCS 228482) and the 3/15/17 clinical note states that he does not qualify for a restoration and should re-kite in June (NDCS 089266).
135 See discussion on the relation of dry mouth to caries progression supra. 52

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2. Delayed Scheduling for Routine Care 148. In my opinion, based on a reasonable degree of dental probability, NDCS’s dentist shortage has resulted in prisoners receiving untimely routine care even after their quarantine period. Delayed treatment of asymptomatic dental disease can result in disease progression that that can cause pain, make the tooth more difficult to repair, or cause the tooth to be unsalvageable. Such delays can be a de facto extraction only policy. 149. As discussed supra, routine care should be sufficiently timely that asymptomatic issues do not develop into problems that cause pain, make the tooth more difficult to repair, or cause the tooth to be unsalvageable. 150. Plaintiff Zoubek/Rena submitted an IIR 8/13/15 for an examination and a filling and was advised that she was on the schedule for fillings (NDCS 015757). She followed up 10/20/15 and was told that she was still on the list and it is a long list (NDCS 015756). She submitted IIRs 2/22/16 (NDCS 015754) and 2/13/16 for a painful tooth (NDCS 015755). She was examined 2/25/16 and was a temporary restoration was placed in tooth #18 (NDCS 0157489). From the time of her 8/13/15 IIR until she was seen for a toothache 2/25/16, 196 days passed, and she still had not been appointed for fillings. In fact, it was not until 5/5/16 (NDCS 015749) 70 days later – and 266 days after her initial request for fillings that she had asymptomatic teeth filled. 151. To summarize, even though the 8/3/15 treatment plan identified several teeth that needed fillings, and Plaintiff Zoubek’s persistent requests for routine care, her treatment comprised almost exclusively episodes of urgent care – culminating with extractions. As discussed supra, untreated caries generally progresses, and over time can jeopardize the prognosis of the tooth.
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C. Untimely Urgent Care 152. In my opinion, based on a reasonable degree of dental certainty, the NDCS’s
policy and practice of providing untimely treatment for prisoners who complain of dental pain is not minimally adequate and subjects them to gratuitous pain.
153. NDCS defines urgent care as comprising the extraction of non-restorable, symptomatic teeth, the placement of sedative restorations in grossly decayed teeth, performing a pulpotomy or pulpectomy, the prescription of medications as appropriate, and gross scaling and debridement of calculus.136 However, it does not specify treatment timelines; that is the minimum waiting for a prisoner who states dental pain to be seen by a dentist, mid-level, or other advanced lever provider when the dental clinic is closed or dentists are otherwise unavailable. As discussed supra, prisoners who submit IIRs stating or implying a dental pain should be seen within 24 hours after the IRR is received by Nursing and the patient is seen by a mid-level or advanced lever provider for assessment and prescription of antibiotic (if clinically indicated). If the provider was not a dentist, the prisoner should be examined by a dentist within 72 hours to plan treatment.
154. Plaintiff Norris submitted an IRR 7/6/17 (“Tooth pain on bottom right. Having trouble eating. Please see me as soon as possible”) and was advised 7/11/17 that she was on the list for evaluation (NDCS 011652). She was not seen until 7/25/17 (NDCS 011634). Approval to be seen by an off-site specialist was obtained (NSCS 011650); however, the tooth was not extracted until 8/30/17 (NDCS 011634). Her care was untimely for several reasons. First, while the initial IIR was dated 7/6/17, it was not processed until 7/11/17 – a delay of 4 days. Second, while the record reports that she was placed on the list for an evaluation 7/11/17, she was not seen by a dentist until 7/25/17 – 19 days from her IIR and 14 days from the time she was placed
136 Protocol #18 (2018), A 2(b)2;( NDCS 078390). 54

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on the evaluation list. 137 Finally, the tooth was not extracted until more than a month later – a delay of more than a month after the consultation request was approved.
155. Plaintiff Cardeilhac’s x-rays (NSCS 000022–23) and initial charting (NSCS 000022) indicate that his principal issue was partially erupted third molars. He submitted a kite to Medical 2/11/16 (written by another individual) stating that, “Cardeilhac is on paper restriction but would like to know if he can see the dentist (NDCS 000013). The stamped response dated 2/14/16 was, “your name has been added to the dental waitlist” (id.). There is no evidence in the dental chart that was seen. He submitted a kite 7/10/17 (“My wisdom teeth are popping out of my gums and they hurt real bad. Can I get them pulled out ASAP please”) and was advised that “you have been added to the TSCI dental list 7/14” (NDCS 00011). He kited 8/29/17 (“I put in a kite to see the dentist and you approve me and said I’m on the list and that was July 10th, 2017. That was about 2 months ago”). [NDCS 000004]. He was seen 8/30/17 and painful wisdom teeth were removed - 566 days after the initial kite and 51 days from the second kite. His treatment was untimely since the teeth were not extracted until 8/30/17 – after 51 days (from the date on the request form).
156. Plaintiff Reeves submitted an IIR 1/8/15 for a painful tooth and the response noted that he was seen 1/13/15 (NDCS 015371). However, there are no progress notes for that date (NDCS 074127). In fact, the next note was for a comprehensive examination 3/20/15 (NDCS 014142) – after 71 days.
157. Plaintiff Reeves was seen 8/22/18 for pain associated with #17 and the note stated, “will schedule for extraction” (NDCS 074127). While the record does not contain the IIR
137 As discussed in the section on treating dental pain, she should have been seen by a qualified health care provider within 24 hours to provide pain medication and determine if she required immediate care.
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which I presume he submitted to generate this appointment (so I cannot determine how long he waited to be seen). Furthermore, the 8/22/18 note is the last note in the chart. Since the records were duplicated 10/22/18, he was not seen for that extraction for at least 76 days.138
158. Patient 26 kited for wisdom pain (NDCS 123619) and was not seen by a dentist by the time the chart was copied (at least 10/22/18) – a delay of at least 104 days for a painful condition. This is untimely access to urgent care that subjected him to gratuitous pain.
159. Patient 40 kited for a painful wisdom tooth 10/14/18 and was placed in the extraction list (NDCS 123825). He was not seen by the time the chart was copied (10/22/18) – at least 8 days. This is untimely access to urgent care.
160. Patient 42 kited for problems with his back teeth that ‘needs to be pulled bad 9/17/18 (NDCS 123855) and was not examined by a dentist until 10/11/18 (NDCS 123856) – a delay of 35 days. This is untimely access to urgent care.
161. Patient 43 kited for “teeth that needed to be pulled bad” 9/17/18 (NDCS 123855) and was not examined by a dentist until 10/11/18 (NDCS 123856) – a delay of 35 days. This is untimely access to urgent care.
162. Patients 17 reported a toothache with swelling 5/30/17 (a Tuesday) and was advised that he was on the list and would be scheduled next week (NDCS 119991). She was not scheduled until 6/9/17 -- after 10 days (NDCS 119984). Five days later four teeth were extracted (id). She kited for a toothache 4/3/18 and was not appointed until 4/11/18 – after 8 days (NDCS 119984). She submitted an IIR 10/1/18 stating that a filling fell out and the tooth was painful (NDCS 119963) and was not seen by the time the chart was duplicated (10/22/18) – after 21 days.
138 His wait would be longer depending on when he submitted the IIR. 56

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163. Patient 16 submitted an IIR 9/19/18 for a painful broken tooth (NDCS 120012) and was not appointed until 9/25/18 – a delay of 6 days - when the dentist diagnosed an infection and prescribed an antibiotic (NDCS 120009).
164. Patient 3 submitted an IIR 12/7/16 stating that he needed teeth pulled (NDCS 119730).139 He was seen 12/13/16 (after 6 days) and #15 was deemed to be infected (for which a 10-day course of Amoxicillin was prescribed) and the record reports that #15 was scheduled to be extracted (NDCS 119732). The tooth was extracted 12/30/16 – 17 days after the Amoxicillin was prescribed. This care was untimely because 1) he was not seen by a dentist for six days despite an IIR that implied pain and 2) the tooth should have been extracted within 10 days (the therapeutic window of the antibiotic. This is below accepted professional standards (see discussion of odontogenic infections supra).
165. Patient 65 complained of a toothache 8/15/18 (NDCS090441) and was seen in “Medical” (by an RN). He was advised to purchase analgesics in the canteen (NDCS090442). The record does not document a dental referral. He complained again 8/22/18 (NDCS090440) and was seen again in medical by an RN who prescribed a five-day course of Tylenol (NDCS090439), He was seen by a dentist 8/31/18 (16 days after his initial complaint) and tooth #30 diagnosed with “cracked tooth syndrome” (NDCS 090437).
166. Patient 12 submitted an IIR for a painful tooth 7/11/18 (NDCS 119890) and was not seen by a dentist until 7/24/18 – 13 days later (NDCS 119886).
167. Patient 22 submitted an IIR 5/8/18 complaining of a painful broken tooth as well as chewing problems (NDCS 120062). He was told that he was not eligible for partial dentures; however, he was not scheduled an appointment to evaluate his painful tooth (id.). He repeated his
139 Note that tooth # 15 (as well as his other maxillary teeth) was marked for extraction at his initial exam 9/27/16. He was not placed on a serial extraction list. Failure to schedule a timely extraction allowed an infection to develop exposing him to gratuitous pain.
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complaint about the painful tooth 5/15/18 and the response was “extract” (NDCS 120061). There is no progress note indicating that he was seen for this problem – a delay of at least 5 months.
168. Patient 14 submitted an IIR 6/16/17 to have a painful tooth extracted and was advised that he was on the dental list (NDCS 119915). He was seen by a dentist 6/27/17 – after 11 days for a “limited oral evaluation; at which he was advised that he must submit an IIR if he has any dental problems at DEC (NDCS 119903). No treatment was provided for his toothache (id.). He was finally seen 7/7/17 (21 days after his initial IIR) (NDCS 119903). He was prescribed a 7-day course of Amoxicillin, an antibiotic, and the record notes that “Patient to return after antibiotic [course] for ext. [extraction of] [teeth #] 3, 5, 6 (id.).140 The next chart entry was 4/10/18 – after 277 days. The standard of care is to extract an infected tooth within the therapeutic window of the antibiotic (see discussion supra); however, there is no documentation that such an appointment was scheduled.141
169. Patient 70 submitted IIRs for tooth pain 8/17/16 and 8/23 was advised that he was on the list (NDCS 228487, NDCS 228486). He was not seen until 8/26/16 (NDCS 089266) – a delay of 9 days.
170. Patient 67 submitted an IIR (“I have a number of teeth that are hurting …”) 3/15/17 and was scheduled for a cleaning, exam and treatment plan (NDCS 080761). He was not seen until 4/26/17 – after 42 days when an infection was diagnosed, and an antibiotic was prescribed (NDCS 087057). This untimely care for this condition subjected him to gratuitous pain and an untreated infection.
140 It appears that the dentist left it to the patient to kite for an extraction appointment; however, since the standard of care is to extract the tooth within the therapeutic window of the antibiotic, the clinic should have scheduled the appointment. 141 I presume that since there is no notation, Rodriguez failed to attend such an appointment.
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171. Patient 71 submitted an IIR 2/22/14 for painful teeth and sore gums and was advised that he would be added to the dental list, but the list was long (NDCS 228474). He was not seen until 3/4/14 – after 10 days (NDCS 090259). He submitted an IIR for dental pain 12/23/15 and was advised to submit a request when out of the SNF (NDCS 228472).142 He repeated his request 4/14/16 (teeth still hurting) (NDCS 228471) and was appointed for 4/18/16 (NDCS 090259) – a delay of 117 days.
172. He submitted an IIR 8/23/17 (front teeth hurt all the time) and was put on the list for a consult and an exam (NDCS 228470). He was not appointed until 9/15/17 – after 19 days when he was diagnosed with a dental infection and placed on an antibiotic (NDCS 090259). He submitted an IIR 2/14/18 for painful teeth and was advised that he would be scheduled “in a couple of weeks” (NDCS 090261). He was not seen until 2/23/28 – after 9 days (NDCS 090258). His treatment for four episodes of dental pain was untimely subjecting him to gratuitous pain.
173. Patient 76 complained of a toothache 9/11/15 (“sensitive to hot and cold and they ache when I bite down on them”) (NDCS 092715) and was not seen until 10/21/15 – after 50 days (NDCS 092708).
174. Patient 44 submitted an IIR for a painful tooth 3/3/17 (NDCS 2648230 and was not seen until 3/13/17 (NDCS 264819) when two teeth were extracted – a delay of 10 days.
175. Patient 51 submitted an IRR for a toothache 7/1/18 (tooth causing headaches and shooting pain)” and was informed that he would be seen “as soon as possible” (NDCS 265168). He was seen 7/11/18 – after 10 days and a tooth was extracted (NDCS 265165).
176. Patient 53 submitted an IIR 9/17/18 for a toothache ((“I have 2 teeth w/ exposed roots. I need to be seen immediately”) (NDCS 265383) and did not receive an appointment until 10/1/18 (NDCS 265379) – a delay of 14 days.
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177. Patient 59 submitted an IIR for a painful tooth 1/5/15 (NDCS 265530) and was not seen until 1/27/15 (NDCS 265523) – a delay of 22 days.
178. Patient 59 submitted an IIR for a chipped tooth that was cutting into his cheek 1/18/17 and was advised to send request when he was out of seg (NDCS 265520). He repeated his request 2/8/17 and received the same response (NDCS 265519). The effect of this policy or practice of denying dental treatment to prisoners in seg was 22 days of gratuitous pain.
179. Patient 56 submitted an IIR 1/21/18 to have a dental appliance (mouthpiece) made because his previous appliance was lost when his property was packed up when he was moved to seg. (NDCS 265449).143
D. Inadequate Treatment of Chewing Difficulty 1. Two-year Quarantine
180. In my opinion, based on a reasonable degree of dental certainty, NDSC’s policy of delaying Priority IV (prosthetics) services can result in an unnecessarily long period of pain and chewing difficulty. In addition, while NDCS policy provides for exceptions, this not communicated to prisoners.
181. Plaintiff Gunther144, a diabetic (NDCS 228501), was examined at intake 4/15/05 and was assessed as having Type 3 periodontal disease and his treatment plan was full-mouth extractions and complete upper and lower dentures (NDCS 228500). This plan was not implemented. This is particularly problematic given the association between diabetes and periodontal disease described supra.
143 While this is not exactly an urgent care issue, the effect of taking the appliance from him when he was moved to seg was to deny him a device that was prescribed to prevent pain. As a rule, prisoners should not be deprived of dental prostheses or prescribed devices without consulting a dentist absent an exigent security concern. To do otherwise is gratuitous cruelty. 144 NDCS reports that there were no dental records between June 2017 and October 25, 2017. Gunther 61937 Dental Records June 2017 to October 25, 2017 (no Bates number).
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182. He was fitted for a mandibular partial denture 4/12/14 (NSCS 089799) and an immediate maxillary complete denture 4/30/14 (NSCS 089799)145 after his remaining maxillary teeth were extracted. He complained of pain associated with the dentures and they were adjusted on several occasions over a 305-day period: 5/5/14 (NSCS 089799), 5/28/14 (NSCS 089799), 7/3/14 (NSCS 089799), 8/29/14 (NSCS 089799), 9/30/14 (NSCS 089799), 11/24/14 (NSCS 089799), 11/23/14 and was placed on the list (NDCS 006718), and 3/6/15 (NDCS 089797).
183. His remaining teeth were extracted 6/20/16 (NDCS 089797) and anterior teeth were added to his existing partial denture and clasps were removed 4/6/18 (NDCS 089810, NDCS 089809).146 On 5/4/18 he complained that the dentures were cutting his gums and that there was a quarter of an inch difference between top and bottom dentures (NSCS 089808).
184. NDCS treated Plaintiff Gunther’s chewing difficulty inadequately causing gratuitous pain and eating difficulty. First, given the persistent pain associated with both dentures a reasonable and prudent dentist would have concluded that the dentures should be remade since they were beyond adjustment. His maxillary (upper) denture was an immediate denture and because bone resorption and shrinkage of the healing soft tissues occur at a greater rate compared to already well-healed tissues, it is often necessary to reline the denture to maintain a well-adapted fit.147 The dentist failed to do so. Second, Given the persistent pain associated with both dentures, the lower partial denture should have been remade.
185. The delay between the extraction of the lower teeth (6/20/16) and the revision of the lower partial denture to add teeth and remove clasps (1/16/18) - 19 months is unreasonable
145 A denture is inserted immediately after the extraction of teeth. 146 The chart I was provided showed no clinical entries between 6/20/16 and 1/16/18 – approximately 19 months. 147 Kiernan D and Plummer K. Overview of single dentures, overdentures, and immediate dentures. In Rahn AO Textbook of Complete Dentures. McGraw Hill, 2009, p. 273
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and subjected Plaintiff Gunther to gratuitous pain and eating difficulty. Finally, the decision to delay a dental appoint to re-make his maxillary denture until he gets out of seg is an unreasonable deprivation of care.
186. The 7/2/18 clinical note reports that Plaintiff Gunther reported that his upper denture was broken when he was moved to seg and “will wait until we hear about the upper denture” (NDCS 074407). He inquired whether his top denture was approved, and was told, “[w]e will get you scheduled when you are out of seg. Please sent kite” (NDCS 089787).148
187. Plaintiff Galle received a partial denture 10/8/15/15 (NDCS 002321). He requested adjustments 10/21/15 (NDCS 228531), 11/13/15 (NDCS 228530), 12/1/15 (NDCS 228529), and 4/6/15 (NDCS 228528), and 12/29/16 (NDCS 228527). Finally, he complained that his partial denture split in two 9/15/17 (NDCS 088882). In my experience, a partial denture that cannot be fitted adequately after four adjustments suggests that either there were significant changes in the patient’s mouth, or it was poorly designed or fabricated and should be remade.
188. Patient 17’s treatment illustrates several problems with NDCS’s inadequate treatment of prisoners with chewing difficulty. First, it was apparent at intake 5/4/17 that her maxillary teeth were not salvageable. NDCS 119962. Rather than scheduling her for serial extractions and timely denture construction NDCS policy is to restrict prosthetics to prisoners who have served two years. Second, the request for a policy waiver was denied because she had not demonstrated weight loss.
189. Figure 6 is a representation of Valerie Thorpe’s teeth based on the dental chart available to me. She had no maxillary teeth and no mandibular molars. In a normal mouth, the maxillary teeth act as vertical stops – preventing the mandibular teeth from damaging the tissue on the maxillary ridge. Without vertical stops (as in the case of Patient 17), it is not uncommon
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for the teeth to cut into the maxillary ridge. In fact, Patient 17 reported such a problem in a 6/28/18 IIR (“[w]as wondering if I could get like ambusol [a topical anesthetic] or something to help the gums on the top where my teeth dig into where my top teeth used to be. NDCS 119970. Other reasons for the denture aside, a maxillary denture would cover the vulnerable tissue since the mandibular teeth would contact the denture’s teeth.
Figure 6. Representation of Valerie Thorpe’s Mouth as of 7/6/18
190. Patient 3 was examined by a dentist 3/1/18 and was told that he should return 10/2018 to start process start process on C/P [complete maxillary / partial mandibular dentures] (NDCS119741). He was not called for an appointment. He submitted an IIR 3/24/18 (“I need to get dentures so I can eat”) and he was advised that he was on the list (NDCS 119720). He submitted another IIR 4/23/18 (“I need to know if I am eligible to get dentures. I don’t have to have surgery and have no top teeth so I have a very difficult time chewing food”. He was told he would be eligible 9/20/18 (NDCS 119718) since per Protocol 18 there was a 1-year quarantine period for routine care that began 9/28/17 (NDCS 119737). He submitted IIRs 7/5/18 (NDCS 119717), 7/20/18 (NDCS 119716), 8/8/18 (NDCS 119715), and 10/1/18 (NDCS 119714) and was told that he was “on the list”. As of 10/3/18 the denture process had not been started. Due to
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the quarantine and inadequate staffing he was forced to endure preventable pain and eating difficulty.
2. Five-Year Denture Fabrication Restriction 191. In my opinion, based on a reasonable degree of dental probability, NDCS’s policy of requiring prisoners to wait five years before being eligible for replacement dentures without a clear clinical exception is unreasonable since there may be changes in the mouth over time. NDCS’s failure to have such a policy has the potential to subject prisoners to gratuitous pain and chewing difficulty. 192. Patient 9 had dentures made by NSCS approximately three years earlier but lost the bottom denture [NDCS 119705]. He requested a replacement10/14/18 and the reply to his kite (signed by a dentist) was that “you don’t qualify for dentures” [NDCS 119707]. The dentist did not schedule an examination to see if there was a clinical basis for an exception to NDCS policy. E. Inadequate Record Keeping 193. In my opinion, based on a reasonable degree of dental certainty, NDCS’s record keeping system for dental charts is inadequate. While the form used for the charting has fields for periodontal depth, NDCS policy and practice is not to use it. Moreover, policy and practice does not prescribe the use of Periodontal Screening and Recording or a similar system to screen for periodontal disease. 194. The chart does, however, provide an opportunity to document periodontal probing and tooth mobility – although I have seen it used in only a handful of the charts I reviewed.149
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195. Most of the charts I reviewed had no periodontal assessment in the initial exam and rarely was there a periodontal assessment associated with clinical encounters. Consequently, periodontal disease is inadequately diagnosed and monitored.
196. Dr. Deol testified that NDCS’s record keeping system is very archaic which makes ensuring that intake central examinations occur within 14 days (an ACA requirement). Deol Tr. 34:19-36:17. NDCS has requested information from vendors about an electronic health record, however it has yet to be funded by the legislature. Deol Tr. 36:18-37:9.
197. Patient 9 was examined at intake and the chart was stamped “PANO and 2 BITEWINGS TAKEN” (emphasis in original) [NDCS119708]. However, he was edentulous and bitewing x-rays cannot be taken on him. The chart entry was signed although the name and degree of the signer are illegible.
198. In my opinion, based on reasonable degree of dental certainty, progress note entries are difficult to read because a consistent format is not used. This is particularly problematic for entries related to urgent care. This is compounded by handwriting that is often inscrutable.
199. As discussed supra, the use of a structured entry system (such as SOAPE) is particularly important in an institutional setting150 because it is another clinician’s ability to understand a patient’s clinical history can be a patient safety issue. In addition, the current record keeping system lacks an adequate system to track patients to ensure that they receive appropriate care.
150 For example, the military, Department of Veterans Affairs, Public Health Service, large clinics, and correctional systems.
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200. As Dr. Deol testified that the current system is archaic, and he has been trying to get an electronic health record since the existing system is all manual (Deol Tr. 34:25-35:3).151
F. Inadequate Dental Staffing 201. In my opinion, based on a reasonable degree of dental certainty, NDCS has too
few dental personnel to provide adequate and timely treatment to its prisoners. 202. The untimely care provided to MDCS plaintiffs and other prisoners identified is
typically the result of inadequate staffing.152 Starting in 2016, to compensate for its inadequate staffing, the NDCS imposed a 1-year quarantine for Priority III care, a 2-year quarantine for dentures, and classified periodontal diagnosis and treatment as non-covered services. As discussed supra, these pernicious changes redounded to the detriment of its prisoners. VIII. CONCLUSION
203. Based on the findings and opinions described herein, all my opinions contained herein are based upon my review of the pertinent records and my training, education, and experience, and are offered to a reasonable degree of dental probability.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration is executed on February 14, 2019 at Dallas, Texas.
Jay D. Shulman, DMD, MA, MSPH
151 In my experience, the use of an electronic health record ensures standardized progress note entries and eliminates the issue of poor legibility. 152 Shulman JD, Makrides N, Lockhart, p. 8-4
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Glossary
 IIR - Inmate Interview Request (sometimes referred to as a “kite”)
 Dental anatomy
 Interproximal – the area between two teeth
 Periapical – the area around the root tip or apex of a tooth
 Odontogenic pain (toothache)
 Pulpitis – an inflammation of the living tissue (or pulp) inside the tooth
 Oral epidemiology – the study of the determinants and distribution of oral diseases; primarily, caries, periodontal disease, and cancer
 Periodontal disease - an inflammatory disease that affects the soft and hard structures that support the teeth. In its early stage, called gingivitis, the gums become swollen and red due to inflammation, which is the body's natural response to the presence of harmful bacteria.
 Periodontitis inflammation of the tissue around the teeth, often causing shrinkage of the gums and loosening of the teeth.
 Early
 Moderate
 Advanced
 Gingivitis - is a common and mild form of gum disease (periodontal disease) that causes irritation, redness and swelling (inflammation) of your gingiva, the part of the gum around the base of the teeth.
 Periodontal ligament - connective tissue fibers that attach a tooth to the alveolar bone within which it sits.
 Alveolar bone - the thickened ridge of bone that contains the tooth sockets (dental alveoli) on the jawbones that hold teeth.
 PSR – Periodontal Screening and Recording
 Periodontal probe – a long, thin probe with a blunt end designed to measure pocket depths around a tooth in order to establish the state of health of the periodontium.
 Dental caries (caries or decay) - an infectious condition that produces acids that deteriorates the structure of teeth. The most common result of dental caries is a cavity—a hole or space in the teeth.
 Cariogenic – promoting the development of caries

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 Oral cancer - also known as mouth cancer, is a type of head and neck cancer and is any cancerous tissue growth located in the oral cavity. ... Oral or mouth cancer most commonly involves the tongue. It may also occur on the floor of the mouth, cheek lining, gingiva (gums), lips, or palate (roof of the mouth).
 Code on Dental Procedures and Nomenclature Dental procedures153
 Oral prophylaxis (cleaning or prophy) - D1110 prophylaxis – adult Removal of plaque, calculus and stains from the tooth structures in the permanent and transitional dentition. It is intended to control local irritational factors.
 Gross debridement - D4355 full mouth debridement to enable comprehensive evaluation and diagnosis - gross removal of plaque and calculus that interfere with the ability of the dentist to perform a comprehensive oral evaluation. This preliminary procedure does not preclude the need for additional procedures.
 Scaling and root planing - D4342 periodontal scaling and root planing - one to three teeth per quadrant This procedure involves instrumentation of the crown and root surfaces of the teeth to remove plaque and calculus from these surfaces. It is indicated for patients with periodontal disease and is therapeutic, not prophylactic, in nature.
 Root planing is the definitive procedure designed for the removal of cementum and dentin that is rough, and/or permeated by calculus or contaminated with toxins or microorganisms. Some soft tissue removal occurs. This procedure may be used as a definitive treatment in some stages of periodontal disease and/or as a part of pre-surgical procedures in others.
 Oral hygiene instruction - D1330 oral hygiene instructions. This may include instructions for home care. Examples include tooth brushing technique, flossing, and use of special oral hygiene aids.
 Pharmacologic terms
 Xerostomia (hyposalivation or dry mouth)
 Xerogenic causing a dry mouth
 Obesogenic – tending to cause weight gain
 Polypharmacy - he simultaneous use of multiple drugs by a single patient, to treat one or more conditions.
 Immediate Denture - An immediate denture is defined as any removable dental prosthesis fabricated for placement immediately following the removal of a natural tooth or multiple teeth.

153 Definitions based on federally approved industry-standard American Dental Association Dental Procedure Codes.

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EXHIBIT L

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UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et al.,

Case No. 4:17-cv-03107-RFR-MDN

Plaintiffs,

CLASS ACTION

v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al.,

REPLY DECLARATION OF MARGO SCHLANGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Defendants.

I, Margo Schlanger, declare as follows: 1. As stated in my previous declaration filed on February 19, 2019, I have been
retained as an expert witness by the Plaintiffs in this case, to evaluate the disability-related policies, practices, and procedures in the Nebraska prison system. The purpose of this Reply Declaration is to provide the Court with additional support for my opinions based on my recently completed inspections of nine of the ten Nebraska state prisons.
2. During the week of June 3-7, 2019 I competed in-person inspections of the following Nebraska state prisons: the Work Ethic Camp (WEC), Nebraska Correctional Center for Women (NCCW), Community Corrections Center-Lincoln (CCC-L), Lincoln Correctional Center (LCC), Diagnostic and Evaluation Center (DEC), Tecumseh State Correctional Institution (TSCI), Nebraska State Prison (NSP), Nebraska Correctional Youth Facility (NCYF), and the Omaha Correctional Center (OCC). The only facility I did not visit was the Community Corrections Center-Omaha (CCC-O).
3. My methodology for the tours was to go through the facilities in an order that came as close as practicable (given staff availability and proximity of necessary locations) to the order an arriving prisoner would experience. My tours generally started with the intake and
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screening functions, both custody and medical, and proceeded to housing and programming areas. At each stop, I engaged in discussions with the staff responsible for the services and activities being performed. For example, I interviewed custody officers and medical staff responsible for interviewing arriving prisoners, mental health staff responsible for interacting with prisoners during the course of treatment, and program staff such as teachers and librarians. At nearly all the facilities, I also interviewed a number of prisoners, including both named plaintiffs and other members of the putative class and sub-classes.
4. I was accompanied at all times on these tours by at least one, and often more, attorneys from the Nebraska Attorney General’s Office. The Deputy Attorneys General were very active on the tour, staying close to me as I interviewed staff and incarcerated persons (other than the named plaintiffs), and participating in discussions with me and Plaintiffs’ counsel regarding the minute-by-minute itinerary for each tour.
5. Touring concurrently with me was another expert retained by the Plaintiffs, Paul Bishop, an architect specializing in disability access. Mr. Bishop took measurements and photographs of the physical features of the facilities.
6. What I learned during the tours supports the conclusion that NDCS’s policies, procedures and practices regarding prisoners with disabilities impact the members of the proposed disability sub-class—“all persons with disabilities who are now, or will in the future be, confined at any NDCS facility”—in a uniform and predictable way. While each prisoners’ impairments and needs for auxiliary aids and/or reasonable modification may differ, all prisoners in the sub-class are harmed by NDCS’s lack of necessary policies, procedures, and practices, and all prisoners in the sub-class are in urgent need of changes to bring NDCS in line with federal disability law.
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A. Identification of Prisoners with Disabilities and Their Disability-Related Needs
7. In my first declaration I explained that Nebraska appeared to lack appropriate policies or formal practices in place to ensure people with disabilities are identified and their disability-related needs assessed. My tours confirmed this lack. I spoke to both custody and medical staff about the intake process at each institution I visited; their descriptions made clear that—with the exceptions described in ¶ 11—intake processes at NDCS do not systematically screen for disability. Just to cite one example, there is no hearing screening done at intake (or systematically thereafter), although a simple 10-question questionnaire is a standard hearing screening method, and several and perhaps all the NDCS prisons have the ability to do onsite audiograms.
8. In addition, even when disabilities are identified by medical staff, the disability is not recorded in a way that facilitates necessary follow-up or services. There may be a medical note placed in the prisoner’s file, but there is no list, no responsive process, no tracking.
9. Similarly, even when a disability is identified, the prisoner’s resulting functional needs are not assessed in any systemic way. Prison medical staff may sign off on a lower bunk pass, and occasionally a medical “porter” is assigned, but there is no process for considering and accommodating all the various ways disability may affect functional needs.
10. At each prison, intake processes include several types of orientation—related to medical care, sexual abuse response, institutional rules and schedules, and the like. But it was clear at each institution that prisoners—including prisoners with disabilities—are not generally informed about disability-related policies, practices, services, accommodations, or personnel. I learned this from prison personnel, from written orientation materials, and from prisoner interviews. Even prisoners who have obvious and significant disabilities reported that they were not informed of the presence of an ADA coordinator or of the services available to them.
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11. There are a few exceptions to the lack of screening. The exceptions I learned about are: (a) At many (perhaps all) of the NDCS prisons, intake medical processes include a vision screening. That is, it seems that prisoners who need glasses are systematically identified as part of the intake physical. (b) At TSCI (and apparently only at TSCI), medical staff include an intake questionnaire to promote better access to chronic care processes, identifying prisoners with certain medical issues/disabilities (asthma, heart problems, diabetes, epilepsy, dental problems, STDs, hepatitis, HIV/AIDS, tuberculosis). The checklist is used to make sure that these prisoners are entered into the chronic care rolls. (c) At NCYF, part of the educational intake process includes identification of youthful prisoners with already-diagnosed special education needs. What these three exceptions share is that they involve systemic pro-active inquiry and record-keeping, both necessary for any effective disability identification system. In my view, these exceptions demonstrate that a more thorough solution to disability identification/tracking is entirely practicable.
12. Effective prisoner self-reporting is not substituting for practices/policies that ensure identification. As I stated in my original declaration, self-reporting depends on effective notice to prisoners that disability-related services are available and how to obtain them. As described above, this does not occur during orientation or intake. And the information has not made its way to prisoners otherwise: only a small fraction of the prisoners with disabilities I spoke with during my site visits knew anything about the existence of an ADA coordinator or disability-related services.
B. ADA Coordinator and Consultation among ADA Coordinator(s), Medical, Mental Health and Custody Staff
13. During the site visits, I learned that NDCS’s former ADA Coordinator, Lisa Matthews, had resigned and left the Department. There had apparently not been a successor yet named. In addition, that day and on the other visits, I learned that NDCS had designated an ADA
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coordinator at each prison, but that these individuals had not yet received any training or information about their role. No prisoner I spoke with had any information about a prisonspecific ADA coordinator.
14. Obviously the exit of what may have been the only person at NDCS with disability-related training or experience is a blow. But even when Ms. Matthews was present, my interviews made it clear that ADA processes have not been effective at NDCS. Prisoners often did not know that such processes existed. I saw little evidence of appropriate consultation and ADA-informed decision-making. But the site visits confirmed my conclusion based on the ADA Coordinator files I had already reviewed that there is not an effective modification/auxiliary aid process in place, and that prisoners with disabilities are adversely affected.
C. Tracking and Notice to Staff 15. I was able to confirm that there are no systematized methods in place to inform staff of prisoners’ disabilities. In fact, several prisoners told me that they would like to use a medical alert bracelet because of this gap. NDCS does not use disability-notification ID cards, or bed/cell cards. There may be evidence of a disability buried in the medical record somewhere, but there is no disability alert in medical or correctional files. I heard about resulting problems— for example, situations where a prisoner was unable to hear a correctional officer, but unable to prove up the hearing impairment that created the issue. D. Provision of Reasonable Modifications and Auxiliary Aids 16. The site visits revealed that—without a process to conduct functional assessments and respond to them—few reasonable modifications and auxiliary aids are in place. 17. There are a few such auxiliary aids made available. For example, most though not all of the public televisions I saw had captioning enabled. (In fact, there was a posted memo at many prisons, dated March 2019, instructing that this occur.) All the pay-phones had a
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volume adjustment button (though it did not increase volume very much). Some but not all of the
libraries/education areas had magnification devices available for reading hard-copy materials.
18. More generally, however, in the absence of a process to consider and
accommodate disability, there were entirely-to-be-expected gaps. Several examples follow—but
my point here is not an exhaustive list but rather to set out the basis for my opinion that the
absence of a functioning ADA process has had widespread adverse consequences.
a. NDCS has implemented a system providing tablet-based phone services, without accommodation or auxiliary aids for deaf/hard-of-hearing or blind/low-vision prisoners. The J-pay kiosks similarly appear to lack screen reader functionality.
b. While several prisons had a TTY device, in not one was there a staff member who actually knew how to attach the device to a phone line and make it work for a prisoner. In one prison, where instructions had been developed and were given to me, they did not work (among other issues, the outgoing relay line was incorrect). I heard repeatedly from prisoners that there was no way to use the TTYs to gain access to telecommunications services. Deaf prisoners and prisoners whose hearing impairment was sufficiently severe to foreclose use of regular phones were therefore entirely deprived of telecommunications access to their family and others.
c. Educational programming was being offered using both computers and tablets. But there was no screen reader technology available.
d. The wheelchairs provided to prisoners seem to be intended for lowintensity use, rather than long term use by healthy active individuals with mobility impairments.
e. Outside of infirmary housing, various devices that might assist independence are not available—for example, transferring devices (often known as trapezes) that assist people with mobility impairments to get in and out of bed. Similarly, the prisoners I spoke with who needed special night-lights (because of low vision) or other unusual disability-related equipment uniformly reported that they were denied such equipment without individualized consideration.
f. Many different questions to many different individuals at many prisons elicited no examples of prisoner job-related accommodations such as adaptive equipment.
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19. Prisoner assistants are used in some circumstances to meet some prisoners’
disability-related needs. But my conversations made it clear that this is not a system that is
meeting the need. Even apart from the issues highlighted in my prior declaration that can make
prisoner assistants a problematic accommodation, I confirmed that prisoner assistants are
available only some of the time to some prisoners with some disabilities for some tasks.
E. Effective Communication
20. My visits confirmed systemic gaps in meeting the requirement of effective
communication for prisoners with sensory impairments.
a. For blind prisoners, there are many communications that are not made in an accessible format—whether that is braille or sound recording. For example, prison-specific rule books and orientation materials are not offered in any non-written version. Similarly, educational materials are provided on computers or tablets, without screen reader or auditory accommodations. As already mentioned, J-Pay kiosks and tablets are inaccessible to blind and low-vision prisoners. The list could go on and on. (Meanwhile, it is clear that NDCS could do better, because authorities have promulgated a recorded version of the system-wide rule book, on a network drive available to some staff—although it is not clear to me that this version is actually available to blind/low-vision prisoners.)
b. For deaf prisoners who use sign language to communicate, access to an interpreter is evidently extremely limited. NDCS institutions occasionally use in-person interpretation—though it seems not nearly as often as they would be necessary for effective communication. Video remote interpretation (VRI) is not available, so interpretation occurs only when there is advance notice and arrangements are authorized and completed. I heard a few times that a device called UbiDuo might at some point be available. This device effectively functions as a way to allow typed instant-messenger-type conversation between individuals in the same location. It is not providing effective communication. First, despite numerous questions at different facilities, I was unable to find one where this device had yet been used, except as a demonstration. Second, this is a device that can work only for communication between individuals who are easily literate and type well. For many deaf/hard-of-hearing prisoners, neither is true.
c. For hard-of-hearing prisoners, NDCS institutions have not surveyed communication problems or implemented systemic solutions. Prisons are noisy institutions, and NDCS facilities are no exception. Hard-of-hearing prisoners frequently need amplification and some need other types of
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auxiliary aids—non-auditory alerts and the like. But with the exception of captioned televisions, mild volume-augmentation on (not-much-used) stationary phones, and the signal-to-earphone system used for institutional television, little has been done to satisfy these needs.
One prison—TSCI—had made a single desktop phone with volume and tone controls available to at least one or two hard-of-hearing prisoners in a unused mezzanine above Housing Unit 2. This is an excellent device and, again, demonstrates that use of such auxiliary aids would be easily accomplished. This phone, however, was unique to one housing unit in TSCI and staff appeared unaware of its actual purpose. I was told during the tour that it was the “TTY” phone. In addition, the mezzanine was up a flight of stairs from the upper tier of the housing unit and could not be reached by a person with significant mobility impairments as well as a hearing impairment. F. ADA Request and Grievance Processes 21. My visits convinced me that the issues I highlighted previously are, in practice, undermining the ADA request/grievance processes. Prisoners are unaware of their rights and the appropriate way to seek their vindication. The process itself is inaccessible for prisoners who cannot see or write, or whose cognitive disabilities are significant. To work, the process needs notice to prisoners of its availability and scope; facility-specific ADA officials who can manage it; clarity about the appropriate path for resolution of disability issues; and accommodations within the process. None of these prerequisites to effectiveness obtain. G. Restrictive Housing Issues 22. My visits demonstrated the existence of several restrictive-housing-related issues at NDCS facilities. 23. In some facilities—particularly TSCI--prisoners whose disabilities render them vulnerable to harm by other prisoners can obtain protection only by “checking in” to protective custody, which is a form of restrictive housing with very onerous and stark conditions of confinement.
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24. In some facilities—particularly NSP—the restrictive housing units are not themselves accessible, risking serious injury to prisoners with disabilities housed there, and rendering the programs, services, and activities unequal for those prisoners who are nonetheless confined to them. I heard reports of months-long stays in restrictive housing from prisoners who were unable to shower or access the exercise yard while there.
H. Special Housing and the Integration Mandate 25. At several prisons—particularly TSCI, NSP and OCC—prisoners with disabilities who need certain types of accommodations are consolidated into particular units, where accessible cells or “medical porters” (that is, prisoner assistants) are made available. The result is that the prisoners are either denied equal access to the programs, services, or activities available only at other units, or are denied the disability-related services they need. 26. LCC and NSP pose particular problems. They are the only facility where certain programs are offered—but they are largely inaccessible to prisoners who cannot manage stairs. At LCC, NDCS has made an accommodation available—prisoners with minor mobility impairments are given a “spine pass,” which authorizes them to traverse the prison by way of a route that has fewer stair steps. But they need special access to that area (the “spine”), which can be delayed. And some parts of the prison are simply inaccessible to them. For example, LCC is the only place where a residential sex offender program known as “iHELP” is offered. For some prisoners, iHELP is a pre-condition for release at the prisoner’s parole date. LCC is also the location of the men’s Secure Mental Health Unit (SMHU). 27. NSP has the only male residential drug treatment (Residential Treatment Center, or “RTC”) program, located in Housing Unit 6 which I was told is completely inaccessible. RTC is often required as a pre-condition for parole. NSP also has what I understand to be NDCS’s only specialized Veteran’s Housing unit, but it can only be accessed via stairs. I spoke with at
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least one wheelchair using veteran who tried to be assigned to the veteran’s unit, but could not be due to his need for the wheelchair.
28. The point for current purposes is, again, not to identify every discriminatory practice, but rather to illustrate how the absence of a disability planning process affects prisoners with disabilities. An appropriate process would identify each type of programming and ensure that there are ways for prisoners with disabilities to access them.
I. Re-Entry and Parole 29. NDCS has two community corrections facilities, CCC-L and CCC-O, geared towards work details and work release, to serve a reentry function. My visits suggested that prisoners with disabilities do not have equal access to community corrections institutions. For example, prison staff explained to me that anyone who needs assistance with an “activity of daily living” (abbreviated ADL, in my conversation) is not admitted to CCC-L. (The Warden did say that if a prisoner can work without assistance, but needed assistance getting dressed, perhaps that could be worked out.) Prison staff told me there had been just one wheelchair user at the facility in 7 years, no blind prisoners, and one partially-deaf prisoner (who could read lips). As already explained, I did not tour CCC-O. 30. As noted above, several programs commonly required as a pre-condition for parole are offered only in inaccessible locations. 31. My interviews with prisoners confirmed my initial opinion that the Board of Parole lacks an adequate process for identifying communication needs in advance of parole hearings, as my prisoner interviews uncovered delays before the necessary accommodations could be secured, or going through hearings with no accommodations at all. 32. In my declaration of February 19, 2019, I stated my opinion that the Board of Parole’s decision-making process was discriminatory in part because the Board’s rules include
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language requiring the board to weigh disability as a factor against granting parole. (Feb. 19, 2019 Declaration at ¶ 121(a). The regulation I referred to was Section 4-401(A)(9), which at the time of my February 19, 2019 declaration provided that the Board shall consider “The offender’s mental or physical makeup, including any disability or handicap which may affect his or her conformity to law.” From the Deposition of NDCS’s ADA Expert Barry Marano, I learned that in response to Mr. Marano’s review, NDCS amended the regulation to add the following clause to the above quoted Section 4-401(A)(9): “however, in making its parole decisions the Board does not discriminate on the basis of any disability or handicap that will not affect an individual’s conformity to law.” Marano Deposition, Exhibit 6, Amended Parole Regulation, NDCS 352938-939 (Amended May 21, 2019). This additional language does nothing to remove the regulation’s discriminatory impact, as it allows the Board to continue discriminating as long as they can point to a subjective basis to believe that the prisoner’s disability “may affect his or her conformity to law. As defense expert Mr. Marano stated in his deposition: “To me, it looks on the surface that your disability is an issue.” Marano Deposition at 145:10-12.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration is executed at Ann Arbor, Michigan this 11th day of July, 2019.
Margo Schlanger
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HANNAH SABATA, on behalf of themselves and all others similarly situated; DYLAN CARDEILHAC, on behalf of themselves and all others similarly situated; JAMES CURTRIGHT, on behalf of themselves and all others similarly situated; JASON GALLE, on behalf of themselves and all others similarly situated; RICHARD GRISWOLD, on behalf of themselves and all others similarly situated; MICHAEL GUNTHER, on behalf of themselves and all others similarly situated; ANGELIC NORRIS, on behalf of themselves and all others similarly situated; R. P., a minor, on behalf of themselves and all others similarly situated; ISAAC REEVES, on behalf of themselves and all others similarly situated; ZOE RENA, on behalf of themselves and all others similarly situated; and BRANDON SWEETSER, on behalf of themselves and all others similarly situated;

4:17-CV-3107 MEMORANDUM AND ORDER

Plaintiffs,

vs.

NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT FRAKES, In his official capacity as Director of the Nebraska Department of Correctional Services; HARBANS DEOL, In his official capacity as Director of Health Services of the Nebraska Department of Correctional Services; NEBRASKA BOARD OF PAROLE, JULIE MICEK, In her official capacity as the Board of Parole Acting Parole Administrator; and DOES, 1 to 20 inclusive;

Defendants.

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I. INTRODUCTION AND SUMMARY This is a putative class action lawsuit in which Plaintiffs, inmates of various Nebraska Department of Correctional Services (“NDCS”) facilities, seek redress for alleged violations of their civil and constitutional rights based on perceived deficiencies in the Nebraska prison healthcare system. Plaintiffs allege that Nebraska state prisons are “overcrowded, under-resourced, and understaffed,” and that prisoners are “consistently deprived of adequate health care, including medical, dental, and mental health care, and denied accommodations for their disabilities.” Filing 1 at 4. Plaintiffs file causes of action under 42 U.S.C. § 1983, the Eighth Amendment of the United States Constitution, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”). Filing 1 at 73-84. This case presents itself to the Court with eleven pending motions and over 1,300 pages of briefing, along with more than 15,000 pages of exhibits, expert reports, and documentation. This opinion addresses all outstanding motions.1
Motion for Class Certification The primary motion for the Court’s consideration is Plaintiffs’ Motion for Class Certification. Filing 247. Plaintiffs seek to certify a class of “all persons who are now, or will in the future, be subjected to the health care (including medical, mental health and dental care) policies and practices of NDCS.” Filing 247 at 1. Plaintiffs further seek to certify two subclasses, a disability subclass defined as “all persons with disabilities who are now, or will in the future be, confined at any NDCS facility” and an “isolation” subclass defined as “all NDCS prisoners who
1 This case was transferred to the undersigned judge on September 5, 2019, shortly after his confirmation by the United States Senate as a United States District Judge for the District of Nebraska. Filing 400. On November 26, 2019, in order to assist it in evaluating the considerable record and pending motions in this case, the Court ordered each party to submit twenty-page supplemental briefs outlining the major pending issues. Filing 423 at 4. On January 13, 2020, the Court held oral arguments on all pending motions. Filing 438; Filing 439.
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are now, or will in the future be, subject to conditions of confinement that provide limited contact with other prisoners, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week.” Filing 247 at 1-2.
The Court concludes that Plaintiffs’ proposed class and subclasses do not meet the requirements outlined in Federal Rule of Civil Procedure 23 for the certification of a class-action lawsuit. The Court further concludes certification is not warranted pursuant to binding case law interpreting the class-certification requirements from the Eighth Circuit Court of Appeals and the United States Supreme Court.
Plaintiffs ask the Court to group together as a single class the entire Nebraska prison population for the purpose of redressing grievances regarding healthcare. This request is not suitable for class treatment for several reasons as outlined in this opinion, including the fact that inmates’ individual medical needs run the gamut from no health issues at all to significant illnesses and conditions requiring frequent and considerable treatment. The proposed solutions to the alleged deficiencies in NDCS’s healthcare system are likewise diverse, broad, and would require individualized rather than classwide application. Plaintiffs’ claims simply do not satisfy the commonality required by the law.
In addition, the Court declines to exercise authority over the Nebraska prison system as Plaintiffs request because doing so would be contrary to the idea of federalism outlined in the United States Constitution. The Nebraska prison system is operated by the State of Nebraska, not the federal government, and certainly not by the federal courts. Although this Court stands ready to defend the civil rights inmates have under the federal Constitution, it will not exercise its authority to promote public-policy preferences that should be debated, funded, and if enacted, implemented through the legislative and executive branches of the State of Nebraska.
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Plaintiffs’ request for class certification in this case, if granted, would also likely lead to this Court overseeing a significant portion of the operation of Nebraska’s prisons, including the healthcare provided to prisoners, the adequacy of procedures applicable to prison administration, and the grievance process for prisoners. Indeed, other federal district courts which have granted class certification in all-encompassing prison cases have retained jurisdiction over certain internal prison operations for years once the plaintiffs prevailed in the case, resulting in the parties filing motions related to the original claims for an extended period of time. See, e.g., Parsons v. Ryan, 289 F.R.D. 513, 516 (D. Ariz. 2013) (reflecting repeated filings and on-going requests to the court dating from 2012 to 2020 in prison case with broadly certified class), aff’d, 754 F.3d 657 (9th Cir. 2014). Citing this concern, the Eighth Circuit Court of Appeals has already overruled a judge in the District of Nebraska for certifying an over-arching class in a lawsuit involving the Nebraska prison system. See Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006) (finding the district court “conferred upon itself jurisdiction to assert control over the operation of three distinct mental health facilities, a major component of Nebraska state government”). For these reasons, and others as explained in greater detail below, the Court declines to certify the class and two proposed subclasses requested by Plaintiffs.
Other Pending Motions In addition to Plaintiffs’ Motion for Class Certification (Filing 247), the ten other motions presented to the Court address summary judgment, expert witnesses, discovery disputes, and the question of whether particular claims are moot based on certain Plaintiffs’ release from Nebraska prison incarceration. For the convenience of those reviewing this lengthy opinion, the Court will briefly summarize these motions and the decision of the Court on each of these matters.
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Defendants filed an Objection to Affidavits Submitted by Plaintiffs in Support of Summary Judgment on September 28, 2018. Filing 176 at 13. Therein, Defendants assert that the expert testimony of Plaintiffs’ experts, Dr. Pablo Stewart, Eldon Vail, and Dr. Peter Leone, fails to “create any issues of material fact” regarding whether Plaintiffs exhausted all possible administrative remedies for their claims. Filing 176 at 1. Further, Defendants challenge the expert testimony as “inadmissible legal conclusions.” Filing 176 at 1-2. Defendants ask the Court to strike these experts’ declarations from the record. Filing 176 at 11.
The Court concludes that the expert declarations from Dr. Stewart, Dr. Leone, and Vail are admissible under Federal Rule of Evidence 702 to assist the Court in ruling on Defendants’ partial summary judgment motion regarding Plaintiffs’ exhaustion of administrative remedies. For reasons discussed further herein, the Court denies Defendants’ Objection to Affidavits Submitted in Support of Summary Judgment. Filing 176.
Defendants filed an Objection to United States Magistrate Judge Michael D. Nelson’s Order Regarding Expert Witnesses on September 3, 2019. Filing 395 at 8. After Magistrate Judge Nelson denied Defendants’ motion to strike the declarations of Plaintiffs’ experts, Margo Schlanger, Eldon Vail, Dr. Craig Haney, Dr. Pablo Stewart, “and portions of the declarations of [Drs.] Jay Shulman . . . and Marc Stern” submitted in support of their motion for class certification, the defendants objected and asked the undersigned judge to overrule the magistrate judge’s ruling. Filing 395 at 1. Defendants argue that the magistrate judge inappropriately applied a “focused Daubert analysis” in determining these expert opinions are admissible at the class certification stage as instructed by In re Zurn Pex Plumbing Products Liability Litigation, 644 F.3d 604, 608 (8th Cir. 2011). Filing 395 at 2. Defendants request that the Court sustain their original objection and strike the expert testimony in question from the record. Filing 395 at 7.
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The Court concludes that Magistrate Judge Nelson was correct in applying the focused Daubert analysis from In re Zurn Pex in finding certain expert declarations submitted by Plaintiffs in support of class certification are admissible. Defendants’ Objection to the Magistrate Judge’s Order Regarding Expert Witnesses (Filing 395) is accordingly denied.
Defendants filed a Motion for Partial Summary Judgment Regarding Exhaustion of Administrative Remedies on July 27, 2018. Filing 125 at 2. Defendants argue that most of Plaintiffs’ claims should be dismissed because prisoners are required to exhaust their administrative remedies in making complaints regarding prison treatment prior to bringing an action in court and that requirement was not met for the majority of Plaintiffs’ claims. Filing 128 at 4-5. Defendants ask this Court to dismiss all of Plaintiffs’ claims except for the few they admit were properly exhausted. Filing 128 at 4-5.
The Court concludes there are genuine issues of material fact regarding whether the NDCS grievance process is “available” to Plaintiffs as required by United States Supreme Court precedent. The Court comes to this conclusion given the numerous and repeated challenges Plaintiffs claim they faced in following the NDCS administrative process when trying to file their grievances. Defendants’ Motion for Partial Summary Judgment Regarding Exhaustion of Administrative Remedies (Filing 125) is therefore denied.
Defendants filed a Motion for Partial Summary Judgment Regarding Life Sentences and Eighth Amendment Claims on April 18, 2019. Filing 292 at 2. Defendants request summary judgment on three issues. First, Defendants request summary judgment on Plaintiffs’ claims against the Board of Parole and Julie Micek for alleged problems with parole hearings. Defendants claim these plaintiffs lack standing to make claims regarding parole hearings because they are serving life sentences and therefore are not entitled parole hearings under Nebraska law. Filing
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292 at 1. Second, Defendants request summary judgment on Jason Galle’s Eighth Amendment claim relating to the treatment of his femur. Filing 292 at 1-2. Defendants argue that “[t]he undisputed facts show NDCS medical staff repeatedly saw, treated, and evaluated Galle for his complaints” and that his claim that NDCS acted with deliberate indifference in treating his ailment must therefore fail. Filing 294 at 15. Third, Defendants seek summary judgment on Zoe Rena’s Eighth Amendment claim relating to the treatment of her skin rash. Filing 292 at 2. They argue that, because “NDCS medical staff took multiple steps to respond” to Rena’s skin rash, her claim that the State acted with deliberate indifference in treating the rash must fail. Filing 294 at 17, 19.
The Court concludes that the inmates serving life sentences lack standing to assert their ADA and RA claims against the Board of Parole and Director Micek because they are not entitled to have parole hearings under Nebraska law. Defendants’ Motion for Partial Summary Judgment Regarding Life Sentences and Eighth Amendment Claims (Filing 292) will therefore be granted as to the life-sentence plaintiffs. Summary judgement is denied as to the Eighth Amendment claims relating to Galle’s femur and Rena’s skin rash for the reasons outlined in this order.
Defendant Micek filed a Motion for Partial Summary Judgment, Filing 223 at 2, on January 7, 2019. She argues that Plaintiffs “fail[ed] to make a single allegation directed specifically at [her].” Filing 225 at 1. Micek notes that Plaintiffs’ claims against the Board of Parole specifically focuses on issues surrounding parole hearings and the increased likelihood of being denied parole. Micek claims, however, that she “is not involved in the parole decision-making process” and plays no role in the parole process until after an inmate is granted parole. Filing 225 at 6.
The Court concludes that the undisputed facts show Defendant Micek plays no role in the part of the parole process pertinent to Plaintiffs’ claims, namely parole determination for inmates
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still in NDCS custody. The Motion for Partial Summary Judgment Regarding Defendant Micek (Filing 223) is granted and Micek is dismissed as a party to the lawsuit.
On May 15, 2020, Plaintiffs filed an Objection to the Magistrate Judge’s Order denying their request for discovery related to NDCS’s plan to address the novel coronavirus, COVID-19, pandemic. Filing 469 at 1-2. Plaintiffs ask the undersigned district judge to overrule Magistrate Judge Nelson’s order finding that Plaintiffs’ motion seeking to compel certain COVID-19-related documentation failed to comply with discovery procedures and was not relevant to the claims made in this lawsuit. Filing 470 at 17-20, 29-30.
The Court concludes that Plaintiffs failed to comply with discovery procedure which alone justified the denial of Plaintiffs’ motion. The Court further concludes that Magistrate Judge Nelson’s Order finding that the discovery request is not relevant to the present case is not “clearly erroneous or contrary to law.” 28 U.S.C. § 636. Plaintiffs’ Objection to Magistrate Judge’s Order regarding COVID-19 Discovery (Filing 469) is denied.
Finally, Defendants filed four separate motions addressing whether certain of Plaintiffs’ claims are moot due to individual Plaintiffs’ release from custody, or their release and subsequent return to custody. In their Motion for Reconsideration, filed on March 11, 2019, plaintiff R.P. asked this Court to reconsider its grant of Defendants’ Suggestion of Mootness and Motion to Dismiss his claims, which was originally entered on November 20, 2018. (Filing 260; Filing 204). Filing 270 at 1. The original motion and order were based on the fact that R.P. was no longer in custody. Filing 272 at 2. Because R.P. has since returned to custody, Plaintiffs argue his claims are no longer moot and that the Court should reinstate them. Filing 270 at 1; Filing 272 at 2-3. Defendants further filed Motions to Dismiss and Suggestions of Mootness on April 1, 2019, November 18, 2019, and December 10, 2019 respectively. Filing 280 at 2; Filing 420 at 2; Filing
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429 at 4. Together, these three motions ask the court to dismiss three Plaintiffs: Brandon Sweetser, Zoe Rena, and Angelic Norris. Filing 280 at 1; Filing 420 at 1; Filing 429 at 1. Defendants argue that since all three of these Plaintiffs are no longer incarcerated, their claims are moot and should be dismissed. Filing 280 at 1; Filing 420 at 1; Filing 429 at 1-2.
R.P.’s Motion for Reconsideration regarding the mootness order (Filing 270) is granted. R.P.’s claims are allowed to proceed given he has returned to state custody. Defendants’ Motions to Dismiss and Suggestions of Mootness regarding plaintiffs Sweetser and Norris (Filing 280, Filing 429) are granted because these Plaintiffs are no longer in custody. Defendants’ Motion to Dismiss and Suggestion of Mootness regarding Rena is denied because she has been returned to custody and because issues of material fact exist which precludes summary judgment as to Rena.
II. ANALYSIS The Court will address each of the pending motions in turn and will provide additional facts relevant to deciding each motion where appropriate.
A. Named Parties and Proposed Class Representatives Plaintiffs in this case are of varying ages and are housed at several different NDCS facilities. They also allege that they suffer from a variety of health conditions.2 Hannah Sabata is a twenty-four-year-old female prisoner at the Nebraska Correctional Center for Women (“NCCW”). Filing 1 at 6. She suffers from schizophrenia and is HIV positive. Filing 1 at 7. Sabata was released on parole in November 2017. Filing 54 at 1. Her parole was revoked, and she was returned to NDCS custody in January 2018. Filing 54 at 1. Dylan Cardeilhac is a nineteen-year-old inmate at Tecumseh State Correctional Institute (“TSCI”). Filing 1 at 7. He suffers from bipolar disorder and has been placed in what Plaintiffs
2 The ages of Plaintiffs and their medical conditions recited herein are those alleged at the time of the filing of the Complaint, Filing 1, on August 15, 2017.
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term “isolation” and what Defendants call “restrictive housing” on various occasions. Filing 1 at 7-8, 33; Filing 63 at 20-21.
James Curtright is fifty-two years old and incarcerated at the Lincoln Correctional Center (“LCC”). Filing 1 at 9. He is deaf. Filing 1 at 9-11.
Jason Galle is forty-two and is housed at the Nebraska State Penitentiary (“NSP”). He has chronic pain and mobility limitations stemming from a leg injury. Filing 1 at 11.
Richard Griswold is a fifty-three-year-old prisoner at TSCI who suffers from chronic hip problems, bipolar disorder, and post-traumatic stress disorder (“PTSD”). Filing 1 at 12-14. He is legally blind in one eye. Filing 1 at 12-14.
Michael Gunther is sixty-two years old and is incarcerated at NSP. Filing 1 at 14. He suffers from diabetes and has lost his vision as a result. Filing 1 at 14. He also uses dentures, is limited in what he can eat, and suffers from pain and discomfort in his mouth. Filing 1 at 15-16.
Angelic Norris is a forty-two-year-old female inmate at NCCW who is legally blind and suffers from a developmental disability, bipolar disorder, and hypertension. Filing 1 at 16. On November 20, 2019, Norris was released on parole. Filing 430-1 at 2-6.
R.P. is a seventeen-year-old male juvenile prisoner incarcerated at the Nebraska Correctional Youth Facility (“NCYF”). Filing 1 at 17. He suffers from severe paranoia. Filing 1 at 17. R.P. was discharged from the facility on November 20, 2018. Filing 207-1 at 2-3. Subsequently, on March 4, 2019, R.P. was returned to NDCS custody. Filing 271-1 at 1-2.
Isaac Reeves is nineteen years old and was housed first at NCYF and then at NSP. Filing 1 at 18. He suffers from depression, panic, and anxiety. Filing 1 at 18. He has also experienced tooth pain during his incarceration. Filing 1 at 19.
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Zoe Rena is a thirty-year-old inmate at NCCW. Filing 1 at 19. She has experienced tooth, mouth, and jaw pain; has experienced inconsistent menstrual cycles; and suffers from a chronic skin condition. Filing 1 at 20. On November 15, 2019, Rena was released on parole, Filing 421-1 at 2; Filing 421-3 at 1-2, but was returned to custody in March 2020, Filing 442-2.
Brandon Sweetser is forty-five years old and incarcerated at NSP. Filing 1 at 20. He has hepatitis C, suffered a perforated bowel while in custody, struggles with mobility, and has been diagnosed with paranoid schizophrenia. Filing 1 at 20-22. On April 1, 2019, Sweetser was released on parole. Filing 281-1 at 2-4.
Defendants are the Nebraska Department of Correctional Services; Director of NDCS, Scott R. Frakes; Medical Director of NDCS, Harbans Deol; the Nebraska Board of Parole (“BOP”); and Julie Micek, an NDCS parole official. Filing 1 at 22-23.
B. Objection to Affidavits Submitted in Support of Summary Judgment 1. Additional Facts Defendants have moved for partial summary judgment, alleging that several of the plaintiffs failed to exhaust their administrative remedies prior to seeking judicial redress. See Filing 125 at 1; infra Section II.D. In opposition to Defendants’ partial summary judgment motion, Plaintiffs submitted the declarations of various expert witnesses. On September 28, 2018, Defendants filed an objection seeking to strike three of the declarations Plaintiffs submitted in opposition to Defendants’ motion for partial summary judgment. Filing 176. Defendants argue all three declarations should be stricken because they are not based upon sufficient facts or data; will not assist the trier of fact; and are not the product of reliable principles and methods. Filing 176 at 4-11.
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First, Defendants seek to strike the declaration of Dr. Pablo Stewart. Filing 160-38. Dr. Stewart is a board-certified psychiatrist with more than thirty years of experience in correctional mental healthcare. Filing 160-38 at 2. He reviewed several NDCS policies “as well as specific documents within the named plaintiffs’ medical files.” Filing 160-38 at 2. Dr. Stewart admits his “opinions at this early stage of the case are necessarily constrained by the limited amount of information” available through discovery. Filing 160-38 at 2. However, from his review of the policies and documents, Dr. Stewart was able to provide his opinion that “the NDCS grievance processes are complex, confusing, and overly stringent. So much so that prisoners suffering from Major Mental Illnesses (“MMI”) would find it nearly impossible to complete, and therefore it is practically unavailable.” Filing 160-38 at 3. Dr. Stewart also gave his opinion on how Cardeilhac, Sabata, Reeves, Galle, Norris, R.P., Sweester, Gunther, and Griswold would find it difficult to complete NDCS’s three-step grievance process due to their mental health issues. Filing 160-38 at 5-14. Based on the evidence and information he had, Dr. Stewart was not able to opine that Rena or Curtright suffered from mental health issues which would preclude their ability to complete the grievance process. Filing 160-38 at 14-15.
Next, Defendants seek to strike the declaration of Dr. Peter Leone, a professor at the University of Maryland – College Park specializing in the treatment and experience of individuals with disabilities in institutional settings. Filing 160-41 at 2. Dr. Leone reviewed several documents regarding the NDCS-grievance and ADA-request processes. Filing 160-41 at 3. Dr. Leone compared U.S. prison population literacy levels with the reading levels required to understand the NDCS grievance and ADA request procedures. Filing 160-41 at 4-7. Based on his review, Dr. Leone opined “the grievance and request processes of the NDCS are so complex, opaque and confusing that for prisoners of average reading ability as well as for prisoners with additional
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impairments arising from intellectual disability or learning disability, the proper procedures are essentially unknowable.” Filing 160-41 at 3-4.
Lastly, Defendants seek to strike the declaration of Eldon Vail. Filing 160-35. Vail is a former correctional administrator with thirty-five years of experience working in and administering adult institutions. Filing 160-35 at 2. He reviewed the NDCS grievance and ADA policies as well as the affidavits of NDCS employees and approximately thirty of the grievances submitted by Plaintiffs in this case. Filing 160-35 at 5. According to Vail, the NDCS grievance processes include “a number of procedural roadblocks and barriers that (whether or not by design) have the effect of thwarting prisoners from successfully completing the grievance processes.” Filing 160-35 at 5. He also concluded that NDCS staff rely on a hyper-technical application of the already-confusing procedures to thwart prisoners from successfully completing grievances. Filing 160-35 at 5. He concluded, “It is my opinion that, taken together, these fundamental flaws with the NDCS grievance system frustrate the ability of prisoners to use grievances to such an extent that the grievance processes are not actually available to address prisoners’ legitimate concerns.” Filing 160-35 at 6.
2. Analysis Defendants object to Plaintiffs’ proposed expert declarations on the basis of Federal Rule of Evidence 702. It provides that an expert witness may offer an opinion only if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
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Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
“To satisfy the reliability requirement, the party offering the expert testimony ‘must show by a preponderance of the evidence both that the expert is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid.’” Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010) (quoting Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006)). “To satisfy the relevance requirement, the proponent must show that the expert’s reasoning or methodology was applied properly to the facts at issue.” Id. (citing Marmo, 457 F.3d at 757). In making its determination, the Court may consider the following factors: “(1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the theory or technique has a known or potential error rate and standards controlling the technique’s operation; and (4) whether the theory or technique is generally accepted in the scientific community. First Union Nat. Bank v. Benham, 423 F.3d 855, 861 (8th Cir. 2005) (citing Daubert, 509 U.S. at 593–94, 113 S. Ct. 2786). However, “[r]egardless of what factors are evaluated, the main inquiry is whether the proffered expert’s testimony is sufficiently reliable.” Id. (citing Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005)).
The Court concludes Dr. Stewart’s, Dr. Leone’s, and Vail’s declarations each meet the Rule 702 requirements and should be admitted as expert testimony in opposition to Defendants’ summary judgment motion regarding exhaustion of administrative remedies. Defendants primarily take issue with what they characterize as a lack of reliance on sufficient facts or data. Filing 176 at 2-11. Defendants point out that these experts did not speak with or personally examine Plaintiffs. Filing 176 at 2-10. However, there is no requirement for personal contact in order to find an
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expert’s testimony sufficiently reliable and that it will assist the fact-finder. Each of the experts averred they had examined written materials specific to the plaintiffs and policies at issue in Defendants’ motion. See Filing 160-38 at 2 (stating Dr. Stewart reviewed NDCS policies and specific documents from Plaintiffs’ medical files); Filing 160-41 at 3 (stating Dr. Leone reviewed several documents regarding the NDCS grievance and ADA request process); Filing 160-35 at 5 (stating Vail reviewed the NDCS grievance and ADA policies as well as approximately thirty of the grievances submitted by Plaintiffs in this case). The Court is satisfied that each expert’s testimony is based on sufficient facts and data and will assist the trier of fact as required by Rule 702.
Defendants also argue that the experts provide improper legal opinions by opining that the policies make the NDCS grievance process practically unavailable. Filing 176 at 10-11. While Defendants are correct that “expert testimony on legal matters is not admissible,” see S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003), that principle is not violated by the experts’ testimony submitted on this motion. Dr. Stewart, Dr. Leone, and Vail do not testify “whether federal law was contravened,” id., but rather analyze the underlying facts and practices which might lead the Court to find that NDCS’s grievance policy is practically unavailable. This testimony is permissible.
Lastly, although Defendants advance no specific argument in this respect, to the extent they allege the experts do not base their opinions on reliable scientific, technical, or specialized knowledge, such an argument also fails. Each of the experts stated their extensive educational and experiential backgrounds which provided them with the specialized insight and knowledge to analyze the information presented to them. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150,
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119 S. Ct. 1167, 1175, 143 L. Ed. 2d 238 (1999) (noting that in some cases, “the relevant reliability concerns [of Daubert] may focus upon personal knowledge or experience”).
Accordingly, the Court concludes Dr. Stewart’s, Dr. Leone’s, and Vail’s expert declarations are admissible under Rule 702 to assist the Court in ruling on Defendants’ partial summary judgment motion. Defendants’ Objection, Filing 176, is overruled.
C. Objection to Magistrate’s Order Regarding Expert Witnesses 1. Additional Facts In support of its Motion for Class Certification, Filing 247, Plaintiffs submitted the expert declarations of Margo Schlanger (Filing 249-50), Eldon Vail (Filing 249-47), Dr. Craig Haney (Filing 249-42), Dr. Pablo Stewart (Filing 249-38), Dr. Jay Shulman (Filing 249-53), and Dr. Marc Stern (Filing 249-58). Defendants moved to strike the declarations of Schlanger, Vail, Dr. Haney, and Dr. Stewart in full, as well as portions of Dr. Shulman’s and Dr. Stern’s declarations. Filing 351. Magistrate Judge Nelson ruled on the objections and found the declarations admissible. Filing 389 at 4-6. He noted that at the class-certification stage, the Court’s Daubert analysis is more “focused,” in part because the evidence is not going to a jury and because the available evidence may be more limited. Filing 389 at 4-5 (quoting In re Zurn Pex, 644 F.3d at 614). Magistrate Judge Nelson concluded the experts’ qualifications were adequately stated and that their opinions would assist the Court in making its determination under Federal Rule of Civil Procedure 23 . Filing 389 at 5-6. Defendants object to the magistrate judge’s order. Filing 395. They argue the Court erred in applying the focused analysis in In re Zurn Pex, 644 F.3d at 612-14, and that a full Daubert analysis requires the exclusion of the evidence. Filing 395 at 2. They point to the fact that, unlike in In re Zurn Pex, discovery has already commenced and thus, the experts had more information
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available to them. Filing 395 at 2. They also point to cases from outside this Circuit that they claim disagree with In re Zurn Pex’s holding. Filing 395 at 3-4.
2. Analysis A magistrate judge is permitted to rule on certain pretrial matters, like the motion to strike in this case:
(b)(1) Notwithstanding any provision of law to the contrary— (A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law. 28 U.S.C. § 636; see also Fed. R. Civ. P. 72 (“The district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge’s] order that is clearly erroneous or is contrary to law.”). Magistrate Judge Nelson relied on In re Zurn Pex in conducting a “focused” Daubert analysis. Filing 389 at 5-6. He concluded the expert opinions offered by Margo Schlanger, Eldon Vail, Dr. Craig Haney, Dr. Pablo Stewart, Dr. Jay Shulman, and Dr. Marc Stern were “sufficiently reliable in light of the available evidence and purpose for which they were offered.” Filing 389 at 5. The Court agrees that In re Zurn Pex applies in this case. The Eighth Circuit has applied Daubert in a more focused fashion when considering expert testimony submitted at the class-certification stage. In In re Zurn Pex, the Eighth Circuit approved the district court’s use of what it called a “focused” or “tailored” Daubert analysis when addressing expert testimony for purposes of class certification. See In re Zurn Pex, 644 F.3d at 612 (citing
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with approval Blades v. Monsanto Co., 400 F.3d 562, 569 (8th Cir. 2005)). The Court noted that the plaintiff’s “desire for an exhaustive and conclusive Daubert inquiry before the completion of merits discovery [could not] be reconciled with the inherently preliminary nature of pretrial evidentiary and class certification rulings.” Id. at 613. It also stated that Daubert’s interest in protecting juries from being swayed by dubious scientific testimony “is not implicated at the class certification stage where the judge is the decision maker.” Id. Accordingly, it concluded “a focused Daubert analysis which scrutinized the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence” was appropriate. Id. at 614.
Defendants urge this court to depart from the holding of In re Zurn Pex, citing precedent from outside this Circuit. See Filing 395 at 3-4. However, this Court is bound by the decisions of the Eighth Circuit. Defendants have not cited to, nor has the Court located, any binding authority that would permit it to depart from settled precedent in this Circuit. Also unavailing is Defendants’ argument that In re Zurn Pex involved a case with discovery bifurcated between the classcertification and merits stages, whereas no such bifurcation has occurred here. Filing 395 at 2. The Eighth Circuit’s holding was based on the preliminary nature of the class-certification inquiry and the fact that the Court, rather than a jury, was evaluating the expert testimony. In re Zurn Pex, 644 F.3d at 612-14. Thus, the lack of bifurcated discovery in this case does not change the applicability of In re Zurn Pex’s holding. Accordingly, the magistrate judge was correct to rely on In re Zurn Pex.
The Court also agrees with the magistrate judge’s focused Daubert analysis. As the magistrate judge’s order noted, each declaration sets forth the expert’s qualifications as well as the evidence and data upon which he or she relied in forming an opinion. Filing 389 at 5. The magistrate judge correctly noted that the experts provided opinions which would assist the trier of
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fact in addressing various aspects of Rule 23 regarding class certification, including commonality and typicality. Filing 389 at 5-6. The magistrate judge also noted that, to the extent the declarations were general and not related to specific Nebraska correctional institutions, such a deficiency would go to the credibility of the testimony, not its admissibility. Filing 389 at 6 (citing In re Zurn Pex, 644 F.3d at 614). The Court agrees that the experts’ declarations are admissible under the focused Daubert analysis required by In re Zurn Pex. To the extent portions of the declarations are based on the experts’ personal and/or political opinions, the Court will afford those portions little or no weight and will instead focus on the fact-based analyses provided by the experts. The Court agrees with the magistrate judge’s conclusion: “The Court will be capable of compartmentalizing its class certification analysis from its merits analysis when reviewing the evidence in support and in opposition to class certification, and therefore the expert declarations do not need to be stricken. . . .” Filing 389 at 6.
Accordingly, the Court concludes Magistrate Judge Nelson was correct in applying In re Zurn Pex and finding the declarations submitted in support of class certification are admissible. Because the magistrate judge’s finding was not clearly erroneous or contrary to law, Defendants’ Objection, Filing 395, is overruled.
D. Motion for Summary Judgment Regarding the Exhaustion of Administrative Remedies
Defendants move for partial summary judgment on several of Plaintiffs’ claims on the basis that those individual plaintiffs have failed to exhaust their administrative remedies prior to taking judicial action as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997 et seq. Filing 125; Filing 128. Plaintiffs argue that they have exhausted their administrative remedies or, in the alternative, that exhaustion was not required because the NDCS grievance system is unavailable.
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Filing 162 at 51-73. For the reasons set forth herein, the Court concludes that questions of material fact exist as to whether the NDCS grievance system is practically unavailable. For this reason, the Court finds that summary judgment in NDCS’s favor is inappropriate on the question of exhaustion of administrative remedies.
1. Standard of Review “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c). “[S]ummary judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party’s favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923–24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). The moving party need not produce evidence showing “an absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (citing Celotex, 477 U.S. at 323, 106 S. Ct. 2548). Instead, “the burden on the moving party may be discharged by ‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s case.” St. Jude
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Med., Inc. v. Lifecare Int’l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).
In response to the moving party’s showing, the nonmoving party’s burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than ‘the mere existence of some alleged factual dispute’” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
2. The PLRA Under the Prison Litigation Reform Act (“PLRA”), inmates cannot bring judicial actions regarding prison conditions until they have utilized available administrative remedies first:
(a) Applicability of administrative remedies No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C § 1997e(a); see also Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015) (“An inmate must exhaust all available administrative remedies before bringing a § 1983 suit.”). The benefits of requiring exhaustion “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a
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useful record.” Jones v. Bock, 549 U.S. 199, 219, 127 S. Ct. 910, 923, 166 L. Ed. 2d 798 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88-91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)).
The question of exhaustion of administrative remedies under the PLRA is a question of law. See Ray v. Kertes, 130 F. App’x 541, 543–44 (3d Cir. 2005) (noting “the proposition that the availability of administrative remedies to a prisoner is a question of law”). However, “[n]onexhaustion is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Porter, 781 F.3d at 451 (citing Jones, 549 U.S. at 211-12, 127 S. Ct. 910). “The question of whether administrative remedies are actually available requires a factual inquiry.” See William G. v. Pataki, No. 03 CIV. 8331 (RCC), 2005 WL 1949509, at *6 (S.D.N.Y. Aug. 12, 2005).
3. The NDCS Grievance Process “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014) (quoting Jones, 549 U.S. at 218, 127 S. Ct. 910); see also Porter, 781 F.3d at 451. Nebraska law provides, “All inmates shall be informed of the grievance procedures established by the department and copies of such procedures shall be available to all inmates.” Neb. Rev. Stat. § 83-4,138 (Reissue 2014). The NDCS grievance procedures are set forth in the Nebraska Administrative Code and NDCS’s Administrative Regulations (“ARs”). See 68 Neb. Admin. Code § 2-001 (providing that the grievance procedure set forth in the ARs “applies to all institutions operated by the Department of Correctional Services”); Filing 127-2 at 2 (stating the purpose of NDCS AR 217.02 is “[t]o establish procedures for the implementation of Chapter 2 of the Nebraska Department of Correctional Services Rules and Regulations, Title 68 Nebraska Administrative Code . . . for the effective and equitable resolution of inmate grievances, and for the monitoring of the inmate grievance system”). Under
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the administrative code, “[a]ny topic may be the subject of a grievance, except matters over which the Department has no control, classification actions, and inmate disciplinary actions.” 68 Neb. Admin. Code § 2-002.02.
The administrative code provides a three-step procedure for inmate grievances. See 68 Neb. Admin. Code § 2-003. First, an inmate must submit an “Informal Grievance Resolution Form” to his or her “designated unit staff.” 68 Neb. Admin. Code § 2-003.002. However, if a grievance is of a “sensitive nature,” the inmate can file it directly with the Director or designee “by interoffice mail.” 68 Neb. Admin. Code § 2-004.01. The informal grievance must be filed on a special form “obtained from unit staff” and “must be filed within three calendar days of the incident” being grieved. 68 Neb. Admin. Code §§ 2-005.02, 03. NDCS unit staff who receive an informal grievance are to respond in writing within ten working days. 68 Neb. Admin. Code § 2-005.04.
“If an inmate is dissatisfied with the response to the Informal Grievance, the inmate may file a Step-One Grievance with the Warden” on the required Step-One Grievance form which must be obtained from the inmate’s case manager or other designee. 68 Neb. Admin. Code, §§ 2-003.03, -006.01. “The Step-One Grievance Form must be filed within 15 calendar days of the receipt of the informal grievance response, or if no response was received, within 20 calendar days of the incident giving rise to the grievance.” 68 Neb. Admin. Code § 2-006.02. The other requirements of a Step-One Grievance are that it must address only one issue per form and that the inmate must attach the Informal Grievance Resolution Form and response, if received, to the Step-One Grievance Form. 68 Neb. Admin. Code §§ 2-006.03, .04. Upon receipt, the Warden’s designee signs and dates the form and provides the inmate with a receipt. 68 Neb. Admin. Code § 2-006.06. The Warden or designee must send a written response to the inmate within ten working days, including a brief statement of reasons for the decision. 68 Neb. Admin. Code § 2-006.07.
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If the inmate is dissatisfied with the results of the Step-One Grievance response, he or she must obtain a Step-Two Grievance Form from the case manager or designee and submit it to the Director by interoffice mail in a clearly marked envelope within ten calendar days after receipt of the Warden’s response. 68 Neb. Admin. Code § 2-007.01. The inmate must attach copies of both the Informal Grievance Resolution Form and the Step-One Grievance Form, as well as NDCS’s responses. 68 Neb. Admin. Code § 2-007.03. The Director or his or her designee must respond within twenty working days and can modify, affirm, or reverse the Step-One response of the Warden. 68 Neb. Admin. Code § 2-007.05.
The Nebraska Administrative Code also places a limitation on grievances. “An inmate may file no more than two Step-One Grievances per week (Monday through Sunday), except for valid emergency grievances.” 68 Neb. Admin. Code § 2-008. “Emergencies” are defined as “those matters that must be resolved quickly because if the standard grievance time limits were used the inmate would be subjected to substantial risk of personal injury or other serious or irreparable harm.” 68 Neb. Admin. Code § 2-009. An Emergency Grievance is to be filed on the same form as an Informal Grievance with unit staff. 68 Neb. Admin. Code §§ 2-009.01, .02. If the Warden’s designee determines that an inmate files “frivolous, nuisance or duplicative grievances at any level,” he or she may place “a reasonable limitation . . . on the number of grievances the inmate is allowed to file.” 68 Neb. Admin. Code § 2-010.
Lastly, the Administrative Code contains a section entitled “Other Remedies.” It states: Inmates may communicate grievances to persons outside the Department. 011.01 An inmate may communicate a grievance to the Office of Public Counsel/Ombudsman, legislators, attorneys, courts or others. 011.02 Claims against the Department involving miscellaneous or tort claims for money may be filed pursuant to the State Tort Claims Act.
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011.03 Each facility shall ensure that inmates have reasonable access to courts and to legal services and materials. 68 Neb. Admin. Code § 2-011. NDCS’s AR 217.02 “expands upon [the grievance] statutes and Chapter 2” of the administrative code. Filing 146-1 at 2. In addition to restating much of what is set forth in the administrative code, AR 217.02 requires that inmates and staff be given access to the grievance procedures. Filing 146-1 at 2, 5; Filing 127-1 at 2. It also requires NDCS to maintain copies of all grievances and maintain a log of all grievances containing the grievance’s date, the grievant’s name and inmate number, a statement of the nature of the grievance, and the date the appropriate official responded to the grievance. Filing 146-1 at 6. AR 004.01 establishes the ADA policy for NDCS employees and inmates. Filing 146-2 at 2. According to the policy, “Inmates may follow grievance procedures for reporting ADA-related concerns.” Filing 146-2 at 6. However, the regulation goes on to provide that “[i]nmates may also contact the NDCS ADA Coordinator directly to report an ADA-related concern.” Filing 146-2 at 6. AR 004.01 states that if an inmate “is uncertain how to submit complaints of disability discrimination” he or she may “contact the NDCS ADA Coordinator, the State ADA Coordinator, or the Nebraska Equal Opportunity Commission for assistance.” Filing 146-2 at 7. It continues, “No one is required to submit a complaint to NDCS before filing with the NEOC and/or EEOC.” Filing 146-2 at 6. NDCS’s ADA Coordinator stated that, in her opinion, “if an inmate believes he or she has been subject to disability discrimination or denied accessibility to an activity, service, or program . . . the proper way to complain about that [is] to follow the grievance procedure in [AR] 217.02.” Filing 178-7 at 12, 289. 4. Evidence Regarding the Availability of the Grievance Process
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While the PLRA requires administrative exhaustion prior to an inmate seeking judicial resolution of a complaint, an inmate is only required to exhaust those administrative remedies which are actually available. See Townsend v. Murphy, 898 F.3d 780, 783 (8th Cir. 2018) (citing 42 U.S.C. § 1997e(a)) (“The PLRA, however, requires exhaustion of only ‘such administrative remedies as are available.’”). “The availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is ‘on the books.’” Id. (quoting Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1859, 195 L. Ed. 2d 117 (2016)). Rather, a remedy is available only if it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, ___ U.S. at ___, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738, 121 S. Ct. 1819, 1820, 149 L. Ed. 2d 958 (2001)).
The Supreme Court noted three specific instances in which a remedy would not be “available” for purpose of PLRA exhaustion. See id. at 1859-60. “First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 1859 (citing Booth, 532 U.S. at 736, 738, 121 S. Ct. 1819). Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Id. “[W]hen a remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable.” Id. (citing Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007); Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008)). Finally, the third scenario in which the Supreme Court would find a remedy unavailable is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id.
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Defendants assert the NDCS grievance process was actually available to all inmates, Filing 179 at 147-54, but Plaintiffs introduced evidence from both individual inmates as well as experts showing that serious factual disputes exist regarding whether remedies are, in fact, “available” within the definition put forth by the Supreme Court in Ross, ____ U.S. at ____,136 S. Ct. at 1859-60.
a. Plaintiffs’ Inmate Declarations Regarding Unavailability of Grievance Process Cardeilhac filed a declaration detailing his knowledge of and experiences lodging grievances at TSCI. Filing 160-1. According to Cardeilhac, he participated in an inmate orientation when he arrived at TSCI but does not recall receiving an inmate rulebook or any information related to the grievance process. Filing 160-1 at 2. His understanding of how to complete the grievance process therefore comes largely from speaking with other inmates. Filing 160-1 at 3. He also does not have access to the library at TSCI due to his classification in segregation and he is not aware if TSCI has an “inmate resource center.” Filing 160-1 at 2. Cardeilhac also detailed his difficulty in lodging grievances while housed in a segregation unit. Filing 160-1 at 1-2; Filing 1602. According to Cardeilhac, when in segregation he is supposed to have access to grievance forms by requesting them at 2:00 P.M. “when the gallery corporal brings the supply cart past [his] cell.” Filing 160-1 at 1. However, Cardeilhac has requested grievance forms in this manner and NDCS staff “have declined to provide [him] these forms within three days of [his] request.” Filing 160-1 at 2. According to Cardeilhac, “[T]he only other way to access grievance forms outside of this time frame, from NDCS staff, in [his] housing unit is to cover [his] window and act like there is an emergent situation to draw NDCS staff attention to [his] cell.” Filing 160-1 at 2. Cardeilhac also describes other issues with the operation of the grievance procedure at TSCI. He has experienced NDCS staff encouraging him to utilize an Inmate Interview Request
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(IIR), also informally known as a “kite,” rather than the formal grievance process. Filing 160-1 at 2. Cardeilhac has also experienced NDCS staff delaying responses to his grievances, incorrectly dating the responses such that they do not correspond to the actual date he received an answer, or failing to respond to grievances at all. Filing 160-1 at 3. He has also witnessed NDCS staff losing or destroying grievance forms and refusing to submit them to the proper authority. Filing 160-1 at 3. He feels that a common sentiment among inmates is “that filing grievances is pointless due to the lack of tangible results from engaging in the process.” Filing 160-1 at 2. Griswold reports similar issues at TSCI, including NDCS losing, intentionally destroying, or refusing to accept grievances. Filing 160-9 at 2-3.
Sabata and Rena both filed declarations detailing issues with perfecting grievances at NCCW. Filing 160-3; Filing 160-30. Both say they did not recall receiving information about grievances during their orientation, nor did the facility’s inmate resource center provide information about the grievance procedure. Filing 160-3 at 1-2; Filing 160-30 at 2. They also express a sentiment among inmates at NCCW that the filing of grievances does not produce tangible results and takes an extended length of time to complete. Filing 160-3 at 1-2; Filing 16030 at 2. They experienced NDCS staff refusing to accept grievances they attempted to file, inaccurately dating NDCS responses to grievances, and requiring more time to respond. Filing 160-3 at 2; Filing 160-30 at 2-3.
Curtright attested to grievance issues at the Omaha Correctional Center (“OCC”). Filing 160-4. Curtright has experienced “significant delays between when a grievance is marked as responded to by NDCS and when [he] actually receive[s] their response.” Filing 160-4 at 2. He provided an example of Grievance 2017-5244, which he filed as a Step One Grievance on June 27, 2017. Filing 160-4 at 2. The form itself indicates NDCS responded on July 19, 2017, while the
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grievance log states the response date as July 21, 2017. Filing 160-4 at 2; Filing 160-5. According to Curtright, he did not receive the response until July 24, 2017. Filing 160-4 at 2. When Curtright appealed the decision by filing a Step Two Grievance form on August 6, 2017, NDCS did not mark it “received” until August 9, 2017. Filing 160-4 at 2-3. While Curtright’s attempted Step Two Grievance may have been untimely, the grievance nevertheless reveals significant issues on NDCS’s part in incorrectly dating inmate grievances and responses.
Curtright also reported NDCS staff and unit managers telling inmates to report issues via a “kite,” or IIR, rather than by filing a formal grievance. Filing 160-4 at 3. According to Curtright, NDCS staff would also incorrectly tell inmates that they must file an IIR in order to initiate the grievance process, in contravention of 68 Neb. Admin. Code, § 2-003.002 which states that only an Informal Grievance Resolution Form initiates the grievance process. Filing 160-4 at 3.
Gunther reported issues with the grievance process at NSP. Filing 160-10. While housed in isolation, Gunther had limited access to grievance forms, and NDCS staff told him grievance forms were completely unavailable on certain days. Filing 160-10 at 2. For example, on several occasions, Gunther attempted to submit a Step Two grievance regarding medical care, but NDCS rejected it because he did not attach a signed Step One response. Filing 160-10 at 4; Filing 16014; Filing 160-15; Filing 160-16; Filing 160-17. However, staff refused to accept the initial Step One grievance at all, meaning Gunther had no response to attach. Filing 160-10 at 4. Gunther also reported NDCS failing to provide responses on the same date written on grievance forms or logs, thus resulting in Gunther’s escalation of the grievance being untimely. Filing 160-10 at 5-6; Filing 160-20; Filing 160-21; Filing 160-22. Lastly, Gunther experienced NDCS responding that it would resolve issues to remedy a grievance, but then failing to take the promised steps. Filing 160-10 at 6; Filing 160-23.
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Galle likewise experienced difficulty in submitting grievances while incarcerated at NSP, including correctional officers discouraging him from filing grievances and a unit manager repeatedly threatening to throw away Galle’s grievances. Filing 160-6 at 3. Galle also experienced NDCS staff losing his grievances, and he was unable to submit grievances during a “lockdown” situation. Filing 160-6 at 3.
R.P. testified to a complete lack of information regarding the grievance process at the NCYF. Filing 160-26 at 1-2. He was not provided with any information about the grievance process during his orientation. Filing 160-26 at 2. He reports that NDCS staff at NCYF tell inmates to address any concerns or issues by filing an IIR and do not advise them to use the grievance process. Filing 160-26 at 2-3. He was unaware that an IIR was different from the grievance process until he was so informed during the course of litigating this case. Filing 160-26 at 3.
Reeves reported a similar lack of access to and information about the grievance process during his time at NCYF prior to June 2017. Filing 160-27 at 1. While housed in segregation, Reeves was denied access to pens and paper, including grievance forms. Filing 160-27 at 2. On other occasions, when Reeves asked for grievance forms, NDCS staff would express anger, tell him to wait because they were too busy, and tell him it was too late and he would have to wait for the next shift. Filing 160-27 at 2. He also experienced NDCS staff telling him to just “file a kite” rather than pursue a grievance because they claimed “the kites work better than grievances.” Filing 160-27 at 2. As a result of this misinformation by NDCS staff, Reeves sent numerous IIRs directly to the Warden rather than pursuing the grievance process to exhaustion. Filing 160-27 at 3; Filing 160-28. He averred, “Each time I believed that the Warden’s response completed the grievance because I followed staff’s instructions and contacted the warden directly.” Filing 160-27 at 3.
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Sweetser detailed numerous barriers to exhausting the grievance process during his incarcerations at the Community Corrections Center in Omaha, NSP, and OCC. Filing 160-31 at 1. In 2017, Sweetser filed Grievance 2017-7212. Filing 160-31 at 3; Filing 160-32. NDCS indicated it responded to his Step One grievance on August 28, 2017, but Sweetser did not receive the response back until September 12. Filing 160-31 at 3; Filing 160-32. Sweetser filed his Step Two grievance on September 13, the day immediately after receiving NDCS’s response, but NDCS rejected it on the grounds that it was untimely for being submitted more than ten days after the false response date of August 28. Filing 160-31 at 3; Filing 160-32. Sweetser was unable to exhaust another grievance, number 2017-4568, because NDCS dated its response May 31, 2017, but failed to return it until several weeks later. Filing 160-31 at 3; Filing 160-33. Sweetser’s Step Two grievance form was consequently deemed untimely, despite him filing it immediately after receiving NDCS’s Step One response. Filing 160-31 at 3; Filing 160-33. Sweetser also experienced NDCS losing three of his grievances and advising inmates to file IIRs instead of going through the grievance process. Filing 160-31 at 4.
b. Plaintiffs’ Expert Declarations Regarding Unavailability of the Grievance Process
In addition to the various declarations from inmates documenting their first-hand experiences and frustrations with the NDCS grievance process, Plaintiffs also submitted evidence from three experts substantiating that the grievance process is not actually available to inmates. Filing 160-35; Filing 160-38; Filing 160-41.
Eldon Vail, whose qualifications are described at length above, supra Section II.B, submitted a declaration based on his extensive experience working in correctional facilities and his review of NDCS’s grievance procedures and individual inmates’ grievances. Filing 160-35 at
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1-5. Vail identifies a number of procedural roadblocks built into the NDCS grievance policy which prevent inmates from utilizing it to exhaustion. Filing 160-35 at 5-6. First, Vail opines that the requirement that inmates file grievances within three days of the instance being grieved is problematic and exceptionally short when compared with other states’ practices. Filing 160-35 at 8. In addition to such a quick turnaround time requiring prisoners to act with haste or before fully comprehending a situation, the policy is vague as to when the three-day period begins. Filing 16035 at 8-9. “Because the NDCS policy does not define the term ‘incident’ or provide any guidance for when this 3 day time period begins, in most cases it will be unknowable by when the prisoner needs to file the Informal Grievance Resolution Form.” Filing 160-35 at 9. According to Vail, he has reviewed numerous instances in which NDCS staff used the timing requirement to “dismiss[] grievances without consideration of their merits, by concluding the prisoner guessed wrong as to when the triggering incident occurred.” Filing 160-35 at 9. For example, Vail reviewed one rejected grievance in which the inmate complained his new pain medication was not being properly managed. Filing 160-35 at 27. Because his medication had changed six weeks prior, NDCS staff rejected it as untimely. Filing 160-35 at 27. Vail calls it “incomprehensible” that NDCS would reject such a grievance when common sense would provide that an inmate might need time to see the effectiveness of a new medication before realizing it is not working and grieving the issue. Filing 160-35 at 27.
In Vail’s opinion, requiring inmates to obtain the Step One and Step Two grievance forms in person from different NDCS staff also disincentivizes inmates from utilizing the grievance procedure if they fear the grievance could trigger retaliation. Filing 160-35 at 10, 13. Vail notes that the regulations allow an inmate to avoid the in-person requirement by mailing grievances “of a sensitive nature” but found that exception problematic because “sensitive nature” is not defined.
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Filing 160-35 at 11. Accordingly, if NDCS disagrees with an inmate about a grievance being sensitive or not, it could result in rejection of the grievance beyond the three-day time limit and no remedy for the inmate. Filing 160-35 at 11. Similarly, Vail notes two instances in which grievances were rejected by NDCS because the inmate had marked them as an “emergency” and NDCS disagreed. Filing 160-35 at 22.
Likewise, the requirement that an inmate attach copies of the responses to each subsequent level of grievance report is “burdensome” and “nonsensical” in Vail’s opinion because NDCS policy already requires it to keep copies of grievance responses. Filing 160-35 at 13. Vail’s opinion in this respect is supported by the fact that six of the grievance examples he reviewed “were rejected by NDCS staff simply because the prisoner failed to attach the appropriate form.” Filing 160-35 at 21. This was true even when the inmate attempted to indicate his or her inability to attach the prior forms “because unit staff had refused to accept the forms.” Filing 160-35 at 21.
Vail also finds problems with the requirement that inmates file no more than two grievances per week, especially in conjunction with the requirement that inmates grieve separate incidents on separate forms. Filing 160-35 at 14-15. As an illustration of the latter problem, he reviewed one grievance which was rejected for containing multiple issues when the inmate complained about being housed in protective custody instead of general population despite being blind. Filing 160-35 at 23.
Vail identifies inconsistencies in the guidance to inmates of where and how they could lodge complaints. Filing 160-35 at 12-19. While NDCS seems to take the position that the Step One and Step Two procedure is the only manner for properly filing a grievance, Vail argues both the grievance and ADA regulations contain confusing language which seems to inform prisoners
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they can pursue other avenues of filing a grievance, such as by contacting the ombudsman or filing a judicial complaint. Filing 160-35 at 15-19.
Vail also identifies instances of NDCS staff disincentivizing inmates from filing grievances and encouraging them only to file IIRs instead. Filing 160-35 at 27-28. Vail opines that “This misdirection of prisoners away from the formal grievance process by NDCS staff, instead telling them to file a form that Nebraska does not treat as part of its grievance process, obstructs prisoners from complying with the procedural requirements of the grievance system.” Filing 16035 at 27-28.
Based on the foregoing observations, Vail concludes that “the NDCS grievance processes are so opaque, confusing and contradictory that ordinary prisoners would find [them] unknowable and therefore unavailable.” Filing 160-35 at 5.
Plaintiffs also submitted the declaration of Dr. Pablo Stewart. Filing 160-38. Based on his thirty-plus years of experience in correctional mental healthcare and his review of the NDCS grievance policies as well as materials from Plaintiffs’ medical files, Dr. Stewart opines that the grievances processes are “complex, confusing, and overly stringent.” Filing 160-38 at 3. Dr. Stewart finds the grievance process especially problematic for those inmates “suffering from Major Mental Illnesses . . . [who] would find it nearly impossible to complete.” Filing 160-38 at 3. In particular, Dr. Stewart opines that individuals with mental illnesses would find it difficult to comply with the grievance policies’ strict time limitations and technical requirements because mental illness tends to wax and wane over time. Filing 160-38 at 5.
Lastly, Plaintiffs submitted the declaration of Dr. Peter Leone, a professor specializing in educational disabilities and the experiences of disabled individuals in correctional institutions. Filing 160-41 at 2. Dr. Leone reviewed the NDCS grievance process and declarations from NDCS
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officials. Filing 160-41 at 3; Filing 160-43 at 2. According to Dr. Leone, the grievance process is so complex and confusing for prisoners of average reading ability and for those with intellectual disabilities that it is essentially unknowable to them. Filing 160-41 at 3-4. Dr. Leone evaluates the ARs governing the grievance procedure as ranging from a tenth-grade to a fifteenth-grade reading level, which he opines would be beyond the capacity of many inmates. Filing 160-41 at 4-5; Filing 160-44. Dr. Leone also finds it unlikely that inmates would self-identify as having intellectual disabilities in order to request an accommodation or assistance in completing the grievance process. Filing 160-41 at 7.
c. Defendants’ Evidence Regarding Availability of the Grievance Process3 Defendants counter Plaintiffs’ evidence by arguing that the grievance process cannot be considered “unavailable” because some of the plaintiffs have managed to successfully grieve certain issues. See Filing 179 at 147-52. First, they claim the grievance process is not a dead end. Filing 179 at 148. They point to the fact Sabata requested access to use the swing set at NCCW and was allowed to do so in Grievance 2017-499 and that Galle was granted relief at a Step-One grievance level when he requested to work in the Cornhusker State Industries shops and was permitted to do so. Filing 179 at 148; Filing 127-5 at 1-4; Filing 127-44 at 59-62. Chief of Operations at NDCS, Diane Sabatka-Rine further states that even if a grievance is technically untimely, staff have the “discretion” to choose to still respond on its merits. Filing 178-8 at 48-49. However, there is no guidance for staff on how or when to exercise this discretion and SabatkaRine admits that “staff would not be in error if they relied simply on the rule book” in strictly
3 Plaintiffs purport to object to three of Defendants’ affidavits submitted in support of their motion on the basis of lack of personal knowledge. Filing 160-45. However, Plaintiffs did not properly file a separate motion or objection supported by a brief, but rather attached a document titled “Objection” as one of the exhibits in their index of evidence in opposition. Filing 160-45. As the objection was not properly filed as required by NECivR 7.1, the Court need not address it. However, even if the objection had been properly filed, the Court still would have considered the affidavits in question as Defendants have established the affiants had adequate personal knowledge of the facts to which they attest.
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denying all untimely grievances, even those based on circumstances such as delayed or incorrectly dated responses. Filing 178-8 at 48. Sabatka-Rine admits being aware of instances of “grievances not being processed within the timeframes” and claims NDCS took “corrective action” but that to the best of her knowledge, no staff have ever been disciplined for obstructing access to the grievance system, telling inmates to file an IIR instead of a grievance, destroying grievances, delaying grievance responses, or giving inaccurate information to inmates about the grievance process. Filing 178-8 at 54-56, 58.
Defendants further argue the grievance policy cannot be considered opaque or unknowable because some of the plaintiffs admit receiving a copy of the inmate rulebook and the grievance process is otherwise readily available via electronic means in each facility’s law library, also known as its inmate resource center, and inmates have access to all grievance forms by asking for them from staff. Filing 178-8 at 22-24; Filing 179 at 150; Filing 160-1 at 2; Filing 160-3 at 2; Filing 160-4 at 3; Filing 160-9 at 2; Filing 160-24 at 1-2; Filing 160-26 at 2; Filing 160-30 at 2; Filing 160-31 at 2; Filing 178-12 at 2; Filing 178-14 at 2-3; Filing 178-15 at 2; Filing 178-16 at 2; Filing 178-17 at 2; Filing 178-18 at 2-3. Sabatka-Rine states that all individuals in the general population can go to the inmate resource centers and those in protective or restrictive housing have access to inmate resource centers in their respective units as well. Filing 178-8 at 26-27. She further states that all inmates are given a copy of the grievance process during their orientation and all inmates have access to printed grievance forms. Filing 127-1 at 3, 5. Sabatka-Rine agreed that per the ARs, NDCS staff is supposed to respond to an informal grievance within ten days, but “circumstances such as illness, injury or unavailability of a witness may lengthen the response time.” Filing 127-1 at 3.
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Finally, Defendants urge the Court to discount the evidence of NDCS officials preventing inmates from pursuing grievances because they call such evidence “merely subjective beliefs” and “unsupported allegations.” Filing 179 at 152 (citation omitted).
d. Analysis Regarding Availability of the Grievance Process The case of Labounty v. Johnson, 253 F. Supp. 2d 496 (W.D.N.Y. 2003) is instructive as to how this Court should address Defendants’ motion for summary judgment on the question of administrative remedies. In Labounty the plaintiff filed a § 1983 claim for Eighth Amendment prison violations and the defendants moved for summary judgment on the basis that the plaintiff had failed to exhaust his administrative remedies under the PLRA. Id. 497. The court acknowledged that the question of “[w]hether the plaintiff has exhausted his administrative remedies is a question for the Court to decide as a matter of law.” Id. at 504 (citing Snider v. Melindez, 199 F.3d 108, 113–14 (2d Cir. 1999)). However, the court found that as to one of the plaintiff’s claims, “[t]he record as it exists at this time contains conflicting accounts regarding plaintiff’s efforts to complete the exhaustion process.” Id. at 504. The Court concluded that “[g]iven that the Court must draw all reasonable inferences in [the] plaintiff’s favor, the Court must deny the defendants’ motion for summary judgment at this time.” Id.; see also Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (“[D]efendants must produce evidence proving failure to exhaust in order to carry their burden. If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied . . . .”). Having considered all the pertinent evidence, the Court concludes that there are genuinely disputed facts regarding whether the grievance process is available to the named NDCS inmates within the meaning provided for by the United States Supreme Court. Plaintiffs’ evidence, both in
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the form of actual experiences of inmates and experts reviewing the rules and individual grievances, creates genuine questions about whether the NDCS grievance process is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, ___ U.S. at ___, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738, 121 S. Ct. 1819). The Court finds genuine disputed facts regarding all three forms of unavailability enumerated in Ross: the NDCS grievance policy acting as a dead end; the process being so opaque and incapable of practical use such that no prisoner can navigate it; and NDCS administrators and staff undertaking overt actions to deter inmates from completing the grievance process. See Ross, ____ U.S. at ____,136 S. Ct. at 1859-60.4
“First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 1859 (citing Booth, 532 U.S. at 736, 738, 121 S. Ct. 1819). Here, Plaintiffs presented evidence that inmates were routinely unable to obtain relief from the grievance process, with their grievances denied either based on failure to comply with the regulations or due to NDCS’s lack of follow-through. Filing 160-1 at 3; Filing 160-4 at 3; Filing 160-10 at 2-6; Filing 160-14; Filing 160-15; Filing 160-16; Filing 16017; Filing 160-23; Filing 160-31 at 3. Inmates also consistently reported feeling that the grievance process was futile. Filing 160-1 at 2; Filing 160-3 at 1; Filing 160-30 at 2. Vail opined that NDCS
4 The Court acknowledges that even without considering the dispute as to the availability of the administrative remedies to the named plaintiffs, there are significant factual and legal disputes among the parties as to whether individual grievances have been exhausted. See Filing 128 at 35-98; Filing 162 at 71-81 (summary chart); Filing 179 at 165-184 (responsive summary chart). Indeed, Plaintiffs argue “there is at least one exhausted named plaintiff for each claim in the class action, with exhaustion either established by Defendants’ concession, or with exhaustion as a triable issue of fact precluding summary judgment.” Filing 162 at 81. The Court agrees that to be the case as of today. See supra Section II.D; see infra Section II.G.3. Plaintiffs further point out that if the Court were inclined to certify the class, there would be no need for all Plaintiffs to administratively exhaust every claim due to the theory of vicarious
exhaustion. Filing 162 at 81-83. Given the Court concludes there is a question of material fact regarding the
availability of the grievance process to the named plaintiffs that precludes summary judgment in favor of Defendants, the Court need not address every grievance filed nor address the question of whether certain actions taken outside the three-step grievance process constitute exhaustion under the PLRA.
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staff routinely rejected grievances on procedural technicalities rather than addressing their merits. Filing 160-35 at 9, 10, 13, 27. Although Defendants point to instances of a few completed grievances which resulted in relief for inmates, Filing 179 at 147-52, Plaintiffs’ evidence overwhelming disputes that the process was a viable means for obtaining relief on a consistent basis.
Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Ross, ____ U.S. at ____,136 S. Ct. at 1859-60. “[W]hen a remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable. Id. (citations omitted). Plaintiffs’ evidence creates a factual dispute as to whether the NDCS grievance process is so complex and rife with technical requirements that the ordinary prisoner could not successfully navigate it. Inmates testified that even obtaining the numerous proper grievance forms can be difficult because it requires a specific procedure that is dependent on particular personnel acting or making the forms available within tight timeframes. Filing 160-1 at 1-2; Filing 160-3 at 2; Filing 160-6 at 3; Filing 160-10 at 2; Filing 160-27 at 2; Filing 160-31 at 4. Inmates also experienced difficulty complying with the strict timelines in filing grievances, either due to confusion over the proper procedure or due to NDCS responses themselves being untimely or incorrectly dated. Filing 160-1 at 3; Filing 160-3 at 2; Filing 160-4 at 2; Filing 160-5; Filing 160-10 at 4-6; Filing 160-27 at 3; Filing 160-31 at 3; Filing 160-32; Filing 160-33.
Plaintiffs’ experts substantiated the opaqueness of the NDCS grievance scheme. Vail opined that the three-day turnaround for filing initial grievances was unworkable because the term “incident” was unclear, such as in the situation of the inmate who was told his grievance was untimely because he waited to see the effectiveness of a new medication. Filing 160-35 at 8-9; 27.
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According to Vail, the classification of different grievances was also vague and unclear. Vail noted that the regulations allow an inmate to avoid the in-person requirement by mailing grievances “of a sensitive nature” but found that exception problematic because “sensitive nature” was not defined. Filing 160-35 at 11. If NDCS disagreed with an inmate about a grievance being sensitive or not, it could result in rejection of the grievance beyond the three-day time limit and there would be no remedy for the inmate. Filing 160-35 at 11. Vail also noted two instances in which grievances were rejected by NDCS because the inmate had marked them as an “emergency” and NDCS disagreed. Filing 160-35 at 22. Vail also found confusing the language in the grievance and ADA regulations which seemed to inform prisoners they could pursue other avenues of filing a grievance, such as by contacting the ombudsman or filing a judicial complaint, despite the fact NDCS maintains the formal grievance process is the only avenue for exhausting one’s administrative remedies. Filing 160-35 at 12-19.
Dr. Leone evaluated the ARs governing the grievance procedure as ranging from a tenth to a fifteenth grade reading level, which he opined would be beyond the capacity of many inmates. Filing 160-41 at 4-5; Filing 160-44. According to Dr. Leone, the grievance process is so complex and confusing for prisoners of average reading ability—let alone those suffering from intellectual disabilities—that it is essentially unknowable to them. Filing 160-41 at 3-4. Dr. Stewart agreed that the grievance process is “complex, confusing, and overly stringent.” Filing 160-38 at 3. Dr. Stewart found the grievance process especially problematic for those inmates “suffering from Major Mental Illnesses . . . [who] would find it nearly impossible to complete.” Filing 160-38 at 3. Dr. Stewart opined that individuals with mental illnesses would find it difficult to comply with the grievance policies strict time limitations and technical requirements because mental illness tends to wax and wane over time. Filing 160-38 at 5.
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Based on the Court’s own review of the multi-step grievance process, its numerous technical requirements, and Plaintiffs’ declarations and experts, the Court agrees that disputed issues of material fact exist regarding whether the NDCS grievance process is so confusing and opaque that it is incapable of use by the ordinary inmate.
Lastly, and perhaps most concerningly, Plaintiffs presented evidence that NDCS “administrators thwart inmates from taking advantage of [the] grievance process through machination, misrepresentation, or intimidation.” See Ross, ____ U.S. at ____,136 S. Ct. at 1860. Almost all of the inmates reported a dearth of information regarding the proper grievance procedure, despite Defendants’ insistence that the policy is supposed to be readily accessible. See, e.g., Filing 160-1 at 2-3; Filing 160-3 at 2; Filing 160-30 at 2; Filing 160-26 at 2. Inmates also reported NDCS staff dissuading them from filing grievances, losing or refusing to accept grievances, and telling inmates to file IIRs instead of grievances, knowing that IIRs were not a part of the formal grievance system. Filing 160-1 at 2-3; Filing 160-9 at 2-4; Filing 160-3 at 2; Filing 160-30 at 2; Filing 160-10 at 4-6; Filing 160-6 at 3; Filing 160-26 at 2-3. Curtright even reported NDCS staff incorrectly telling inmates that an IIR was required in order to initiate the grievance process, while NDCS staff told Reeves to just “file a kite” rather than pursue a grievance because they claimed “the kites work better than grievances.” Filing 160-4 at 3; Filing 160-27 at 2. NDCS staff also took more overt actions to prevent successful inmate grievances, such as incorrectly dating responses, delaying answers, or refusing to submit grievances to the proper authority, thus all but ensuring they would be denied at the next level for failure to comply with the grievance procedures. Filing 160-1 at 2-3; Filing 160-3 at 2; Filing 160-30 at 2; Filing 160-4 at 2-3; Filing 160-5; Filing 160-31 at 3, 5.
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Vail’s review of the evidence revealed that NDCS staff employed a hypertechnical reading of the rules in order to deny inmate grievances based on lack of compliance. Filing 160-35 at 9, 21, 23. Vail found numerous instances in which NDCS staff used the timing requirement to “dismiss[] grievances without consideration of their merits, by concluding the prisoner guessed wrong as to when the triggering incident occurred.” Filing 160-35 at 9. Vail also identified instances of NDCS staff disincentivizing inmates from filing grievances and encouraging them only to file IIRs instead. Filing 160-35 at 27. Vail opined, “This misdirection of prisoners away from the formal grievance process by NDCS staff, instead telling them to file a form that Nebraska does not treat as part of its grievance process, obstructs prisoners from complying with the procedural requirements of the grievance system.” Filing 160-35 at 27-28. The Court finds Plaintiffs’ evidence creates genuine disputes regarding whether NDCS officials and staff thwarted, misdirected, and confused inmate attempts at completing the grievance process.
Viewing the evidence in the light most favorable to Plaintiffs as the Court is required to do on a motion for summary judgment, there are genuine issues of material fact regarding whether the NDCS grievance process is available and whether inmates were therefore required to exhaust their administrative remedies.5 See Garrison, 833 F.3d at 884; Fed. R. Civ. P. 56(c). Accordingly, Defendants’ Motion for Summary Judgment for failure to exhaust administrative remedies must be denied.
e. Statute of Limitations Finally, the Court addresses Defendants’ argument that certain of individual Plaintiffs’ grievances should be barred by the statute of limitations for filing actions under § 1983. Filing 128
5 The Court notes that Defendants’ Motion for Partial Summary Judgment (Filing 125) was filed on July 27, 2018. Since that time, a vast number of additional filings along with additional discovery has taken place. The Court acknowledges that the parties in this case have agreed that some named Plaintiffs have indeed exhausted their administrative remedies for certain grievances. See infra Section II.G.3 in this opinion.
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at 55-56, 61, 72-73. Because the Court has concluded that summary judgment is inappropriate due to disputes over whether Plaintiffs were able to exhaust their administrative remedies, it cannot grant summary judgment on the basis of the statute of limitations either. The PLRA, 42 U.S.C. § 1997(e), provides that no judicial action may be filed until a prisoner exhausts his available administrative remedies. If, however, the administrative remedies were not available to Plaintiffs, there is a question whether the statute of limitations was tolled during the time they attempted to exhaust their remedies but were unable to do so. See, e.g., Carney v. Walker, No. 2:04CV92(SNL), 2005 WL 8165808, at *1 (E.D. Mo. Feb. 10, 2005) (finding “[w]hether and to what extent the statute of limitations for bringing a suit pursuant to 42 U.S.C. § 1983 is tolled while a prisoner pursues his available administrative remedies is an issue that has not yet been decided by the Eighth Circuit Court of Appeals” but remanding for the parties to present evidence regarding tolling); Doe v. Selsky, 948 F. Supp. 2d 306, 310-11 (W.D.N.Y. 2013) (“If plaintiff began actively pursuing, or attempting to pursue, his administrative remedies through the grievance process shortly after his . . . confinement began in 2004, but was prevented from doing so due to prison staff’s refusal to process, or even their outright destruction, of his grievances, then the limitations period could have been tolled for virtually his entire period of . . . confinement.”). Thus, the Court declines to determine the applicability of the statute of limitations at this time.
E. Motion for Summary Judgment Regarding Those Serving Life Sentences Defendants move for partial summary judgment on Curtright, Griswold, and Gunther’s claims relating to ADA and RA compliance during the parole-review process. Filing 292. Defendants argue that because these three Plaintiffs are serving life sentences, they have no standing to challenge the parole process. Filing 294 at 9. Plaintiffs counter that their life sentences
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do not preclude them from receiving parole review hearings and they should thus be permitted to maintain their claims against the BOP. Filing 324 at 1-3.
1. Additional Facts It is undisputed that Curtright, Griswold, and Gunther are committed to NDCS custody for terms of life imprisonment. Filing 42-10 at 2; Filing 42-11 at 2; Filing 42-12 at 2; Filing 324 at 5. Despite the fact he is serving a life term, the BOP afforded Curtright a parole review hearing in 2016. Filing 249-21 at 10. Gunther has participated in parole-review hearings in the past as well, although he did not provide specific dates when those reviews occurred. Filing 249-4 at 7. Griswold has not attended any previous parole hearings. Filing 249-3 at 6. However, he testified in a February 2019 declaration that he had a parole review hearing scheduled for March 2019. Filing 249-3 at 6. NDCS provides an “Inmate Information Locator” website. Filing 323-9 at 1. It is a publicly available website which contains limited basic information about inmates in NDCS custody. Filing 323-9 at 1. On the Inmate Information Locator website, Gunther’s “Total Sentence” is listed as “LFE” to “LFE,” presumably meaning “life.” Filing 323-10 at 2. Next to the spots for “Parole Eligibility Date,” “Parole Discharge Date,” “Parole Hearing Date,” and “Parole Discharge Type,” the entries are blank for Gunther. Filing 323-10 at 2. However, the Inmate Information Locator states Gunther is scheduled for his “Next Parole Review Date” in October 2026. Filing 323-10 at 2. Curtright’s Inmate Information Locator page likewise reflects a sentence of “LFE” and has no parole eligibility date, parole hearing date, parole discharge date, or parole discharge type description. Filing 323-11 at 2. According to the website, Curtright’s next parole review hearing is scheduled for August 2026. Filing 323-11 at 2.
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The Inmate Information Locator website also reflects Griswold is serving a “LFE”
sentence, and has no parole eligibility date, no parole hearing date, no parole discharge date, and
no parole discharge type description. Filing 323-12 at 2. According to the webpage, Griswold’s
next parole review date is January 2029. Filing 323-12 at 2.
The Inmate Information Locator website contains a disclaimer, which reads as follows:
Neither the Nebraska Department of Correctional Services, nor any officer or employee of the Department of Correctional Services, nor the State of Nebraska makes any express or implied warranty regarding documents on this server. Although every effort has been made to ensure the accuracy of the information, neither the Nebraska Department of Correctional Services, nor any officer or employee of the Department of Correctional Services, nor the State of Nebraska assumes any liability for the accuracy of information contained herein. Any questions regarding the accuracy of the information contained on this website should be submitted to Records Administrator, Department of Correctional Services, PO Box 94661, Lincoln NE 68509.
Filing 323-10 at 2; Filing 323-11 at 2-3; Filing 323-12 at 2.
2. Analysis
Defendants seek summary judgment on the basis that those Plaintiffs serving life sentences
lack standing to challenge the parole-review process. Standing is an element of the requirement
that an actual controversy must exist at all stages of a case. In re Pre-Filled Propane Tank Antitrust
Litig., 893 F.3d 1047, 1054 (8th Cir. 2018). To show standing when seeking injunctive relief,
a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S. Ct. 1142, 1149, 173 L. Ed. 2d 1 (2009)
(quoting Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–181, 120
S. Ct. 693, 145 L. Ed. 2d 610 (2000)). “Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,
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present adverse effects[.]” Pre-Filled Propane Tank Antitrust, 893 F.3d at 1054 (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974) (first alteration in original).
Prior to 2018, Nebraska law provided inmates serving a life sentence with a right to a parole review hearing. The statute in force at the time read, “If a committed offender is serving a minimum life sentence, his or her record shall be reviewed during the first year of incarceration and every ten years thereafter until such time as the sentence is commuted.” Neb. Rev. Stat. § 83192(1)(f)(v) (Reissue 2014) (repealed 2018). In accordance with this mandate, the Nebraska parole rules in effect at the time also required parole reviews for inmates serving life sentences. See Filing 324 at 28 n.2.
Effective July 19, 2018, however, the legislature ceased requiring inmates serving life sentences to receive parole review hearings. See Neb. Rev. Stat. 83-192 (Supp. 2018) (requiring only “review [of] the record of every parole-eligible committed offender annually” (emphasis added)). The Parole Board likewise revised its parole rules to no longer provide life-sentence inmates with parole-review hearings. See Neb. Parole Bd. R. § 4-204(D) (“The Board will not conduct offender reviews for inmates who are not eligible for parole.”).
The parties do not dispute that Griswold, Gunther, and Curtright are serving life sentences and are therefore ineligible for parole. Filing 42-10 at 2; Filing 42-11 at 2; Filing 42-12 at 2; Filing 324 at 5. Defendants also do not dispute that these Plaintiffs have had past parole review hearings and that the Inmate Information Locator page still reflects they are scheduled for future hearings. Filing 335 at 10-14. But Plaintiffs’ argument ignores the 2018 change to the Nebraska parole statute and the concomitant change to the Nebraska Board of Parole Rule. Formerly, life-sentence inmates were statutorily required to receive reviews by the Board of Parole every ten years despite
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their ineligibility for parole. See Neb. Rev. Stat. § 83-192(1)(f)(v) (repealed 2018). Now, however, such reviews are no longer required, Neb. Rev. Stat. § 83-192, and the Board of Parole Rules therefore no longer provide for them, Neb. Parole Bd. R. § 4-204(D). Accordingly, while the lifesentence Plaintiffs may have received parole-review hearings in the past, they are no longer entitled to them nor will the BOP provide such hearings to them moving forward.
Plaintiffs point to the Inmate Information Locator as proof they will be afforded parole review hearings in the future. Filing 323-10 at 2; Filing 323-11 at 2; Filing 323-12 at 2. They claim the fact the inmate-locator website still lists parole review dates for these inmates means such hearings will, in fact, occur. Filing 324 at 2. But the inmate locator website itself contains a disclaimer stating that the information it displays is not necessarily accurate or updated. Filing 323-10 at 2; Filing 323-11 at 2-3; Filing 323-12 at 2. The pertinent statute and BOP rule state a clear prohibition on parole-review hearings for inmates serving life sentences. This is further supported by the fact that Griswold was scheduled for a parole review hearing following the 2018 change in the law and testified that the hearing did not occur. Filing 324 at 3.
Plaintiffs also argue that the parole-review statute still allows the BOP to review the sentence of any inmate if it so chooses. See Neb. Rev. Stat. § 83-192(1) (“Nothing in such [review] schedule shall prohibit the board from reviewing a committed offender's case at any time.”). They argue the life-sentence Plaintiffs should still have standing because under this subsection, the Board of Parole could theoretically afford them parole review hearings at some time in the future. Filing 324 at 28 n.2. However, Plaintiffs present no evidence to contradict the BOP Rule stating that inmates serving life sentences will not receive parole review hearings. Thus, their argument is nothing more than speculation and conjecture, not the type of evidence which would create an actual dispute regarding their lack of standing.
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Plaintiffs’ allegations do not demonstrate those inmates serving life sentences are under threat of suffering an “actual and imminent” threat that is “not [merely] conjectural or hypothetical.” Summers, 555 U.S. at 493, 129 S. Ct. at 1149 (citations omitted). Furthermore, because Plaintiffs are seeking injunctive relief, Filing 1 at 82-88, their claim of violations of ADA and RA requirements at past parole-review hearings held for life-sentence inmates “does not in itself show a present case or controversy.” Pre-Filled Propane Tank Antitrust, 893 F.3d at 1054 (quoting O’Shea, 414 U.S. at 495-96, 94 S. Ct. 669). Therefore, there is no disputed issue of material fact that Griswold, Curtright, and Gunther lack standing to assert their ADA and RA claims against the Board of Parole and Director Micek. For these reasons, Defendants’ Motion for Partial Summary Judgment, Filing 292, is granted as it relates to the parole issue, and Curtright, Griswold, and Gunther’s claims against the BOP Defendants are dismissed.
F. Motion for Summary Judgment Regarding Defendant Micek Defendant Julie Micek moves for summary judgment on the basis that the undisputed facts demonstrate she plays no role in determining inmates’ eligibility for parole nor holding paroleeligibility hearings, which Plaintiffs claim fail to comply with the ADA. Filing 223; Filing 225 at 2. Plaintiffs respond that summary judgment is improper because Micek plays a role in parolerevocation proceedings and in maintaining certain records on behalf of the Board of Parole. Filing 238 at 8-14. Because there is no genuine dispute of material fact that Micek is uninvolved in the BOP-functions relating to Plaintiffs’ claims, the Court grants summary judgment in Micek’s favor and dismisses her as a defendant from this lawsuit. 1. Additional Facts Julie Micek is the Director of Supervision and Services for the Division of Parole Supervision. Filing 224-1 at 1. The Division of Parole Supervision is in charge of “[t]he
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maintenance of all records and files associated with the Board of Parole.” Neb. Rev. Stat. § 831,100 (Supp. 2018). The duties of the Director of Supervision and Services are outlined in Neb. Rev. Stat. § 83-1,102 (Supp. 2018) and § 3.404 of the Nebraska Board of Parole Rules. Filing 2241 at 2. These duties encompass the oversight of “the field parole service and the community supervision of sex offenders” as well as the preliminary parole-revocation process. Neb. Rev. Stat § 83-1,102(2); Filing 224-1 at 2-3. Neither the Division of Parole Supervision nor its director, Micek, participate in hearings to determine an inmate’s eligibility for parole. Filing 224-1 at 2-3; Filing 238 at 4.
In contrast to Micek’s role as the Director of Supervision and Services for the Division of Parole Supervision, Rosalyn Cotton serves as the Chairperson of the Nebraska Board of Parole. Filing 245-2 at 1. The Chairperson presides over the Board’s determinations regarding “the time of release on parole of committed offenders eligible for such release,” and review of “every paroleeligible committed offender annually.” Neb. Rev. Stat. § 83-192 (Supp. 2018). When the Board, under Cotton’s supervision, conducts key reviews, prison interviews, and hearings to determine parole eligibility, it relies on NDCS records, including those which might indicate or track an inmate’s disability for ADA purposes. Filing 245-2 at 2.
2. Analysis Plaintiffs do not dispute that Micek plays no role in determining whether an inmate is eligible for or should receive parole. Filing 238 at 4. The evidence shows such initial parole determinations are the purview of the Chairperson of the Board of Parole rather than the Director of Supervision and Services. Filing 245-2 at 2. Plaintiffs instead contend Micek’s role overseeing parole-revocation proceedings and her oversight of BOP records should subject her to liability for their claims, but Plaintiffs’ claims do not relate to the parole revocation process. See Filing 1 at
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27-28 (describing Plaintiffs’ claim relating to the BOP as involving notification of eligibility for parole, holding parole-determination hearings, and determining whether parole is warranted). Rather, Plaintiffs’ claims relating to the Board of Parole apply exclusively to prisoners who are seeking or eligible for parole. Micek oversees parolees who have already been released into the community and no longer reside in NDCS facilities. See Neb. Rev. Stat. § 82-1,102; Filing 224-1 at 2 (describing the duties of the Director of Supervision and Services for the Division of Parole Supervision).
Micek’s role overseeing BOP records likewise does not implicate Plaintiffs’ allegations. The evidence shows that because initial parole hearings take place while an individual is still in NDCS custody, it is NDCS records—not BOP ones—that are relevant. Filing 245-1 at 2; see also Neb. Rev. Stat. § 83-197 (Reissue 2014) (granting to the BOP “the power to direct the Director of Correctional Services to keep records concerning committed offenders which the board deems pertinent to its functions”).
Thus, the undisputed facts show Micek plays no role in the processes pertinent to Plaintiffs’ claims: the parole determination process for inmates in NDCS custody. Accordingly, Micek’s Motion for Summary Judgment, Filing 223, is granted and Micek is dismissed as a defendant from the case.
G. Motion for Class Certification Plaintiffs seek class certification under Federal Rule of Civil Procedure 23. Filing 247 at 1-2. They ask the Court to certify the following class: “all persons who are now, or will in the future, be subjected to the health care (including medical, mental health and dental care) policies and practices of NDCS.” Filing 247 at 1. Plaintiffs further seek to certify two subclasses, a disability subclass described as “all persons with disabilities who are now, or will in the future be,
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confined at any NDCS facility” and an isolation subclass consisting of “all NDCS prisoners who are now, or will in the future be, subject to conditions of confinement that provide limited contact with other prisoners, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week.” Filing 247 at 1-2.
1. Standard of Review on Class Certification “To be certified as a class, plaintiffs must meet all of the requirements of Rule 23(a) and must satisfy one of the three subsections of Rule 23(b).” In re St. Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997); Blades v. Monsanto Co., 400 F.3d 562, 568-69 (8th Cir. 2005)). “District courts must engage in a ‘rigorous analysis’ to determine whether the requirements of Rule 23 have been satisfied.” Postawko v. Mo. Dep’t of Corr., 910 F.3d 1030, 1036 (8th Cir. 2018) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)). “Plaintiffs carry the burden of showing that they have met those requirements.” Id. (citing Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013)). “[A] decision to certify a class is far from a conclusive judgment on the merits of the case.” Id. at 1037 (quoting In re Zurn Pex, 644 F.3d at 613). “For that reason, ‘Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.’” Id. (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466, 133 S. Ct. 1184, 1194-95, 185 L. Ed. 2d 308 (2013)). “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. (quoting Amgen Inc., 568 U.S. at 466, 133 S. Ct. 1184). Thus, in addressing a motion for class certification, the Court’s “primary task is not to determine the final disposition of a
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plaintiff’s claims, but instead to examine whether those claims are appropriate for class resolution.” Id. (citing In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d at 613).
2. Additional Facts The NDCS system consists of ten facilities and houses over 5,000 inmates. Filing 250 at 10, 20. Defendants are responsible for the operation of all NDCS facilities. Filing 250 at 10, 20. This includes providing medical care, dental care, mental healthcare, and disability-related accommodations for NDCS inmates. Filing 249-75; Filing 250 at 36-37.
a. Administrative Regulations Nebraska law requires the NDCS Director to “[e]stablish and administer policies and programs for the operation of the facilities in the department and for the custody, control, safety, correction, and rehabilitation of persons committed to the department” and “adopt and promulgate rules and regulations for the management, correctional treatment, and rehabilitation of persons committed to the department, the administration of facilities, and the conduct of officers and employees under his or her jurisdiction.” Neb. Rev. Stat. § 83-173(3), (6). In addition, Neb. Rev Stat. § 83-181 mandates that each person committed to a NDCS facility shall have regular medical and dental care. In order to effectuate these statutes, NDCS promulgated the ARs, a system of centralized policies and procedures. Filing 250 at 10. NDCS’s facilities are governed by the policies and procedures outlined in the ARs. Filing 249-77. The ARs address a wide range of healthcare, dental, mental health, and isolation policies. For example, AR 115.01 serves to “protect the health of patients . . . by ensuring health care providers are properly licensed, trained and/or supervised” and requires that healthcare services be “provided by qualified health care personnel.” Filing 249-82 at 3. It also places all clinical decisions squarely in the hands “of the responsible physician and dentist” and requires a healthcare
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coordinator to oversee the provision of healthcare at each facility. Filing 249-82 at 5; see also Filing 249-84 at 3 (summarizing AR 115.05 which describes how NDCS healthcare providers are to conduct initial inmate screenings).
Another regulation, AR 115.04, “ensure[s] patients are provided unimpeded access to health care services and health education programs” and prescribes the various ways in which inmates must be able to request and access care. Filing 249-83 at 3-6. It also mandates that “[r]outine and emergency dental care” be “provided to each individual sentenced to NDCS under the direction and supervision of a licensed dentist.” Filing 249-83 at 6. AR 115.05 requires that inmates in restrictive housing have access to healthcare as well. Filing 249-83 at 4; Filing 249-84 at 6 (requiring a medical assessment prior to placement in restrictive housing).
A related AR mandates that restrictive housing be used only as “an alternative of last resort” and in “the least restrictive manner possible.” Filing 249-90 at 3. It defines restrictive housing as “[c]onditions of confinement that provide limited contact with other inmates, strictly controlled movement, and out-of-cell time less than 24 hours per week.” Filing 249-90 at 3; see also Neb. Rev. Stat. § 83-170 (defining “restrictive housing” in the same manner). Restrictive housing is further divided into immediate segregation (“[a] short-term restrictive housing assignment of not more than 30 days”) and longer-term restrictive housing (“[a] classificationbased restrictive housing assignment of over 30 days”). Filing 249-90 at 3-4. Immediate segregation gives staff time “to assess the risk the individual poses to safety and security” while longer-term restrictive housing enables “behavior change, and treatment that will facilitate the inmate’s capacity to live successfully in general population and return successfully to the community.” Filing 249-90 at 6. Additionally, longer-term restrictive housing specifically requires “the development of a plan for transition back to general population or mission-specific housing.”
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Filing 249-90 at 4. With either form of restrictive housing, the regulation insists that staff employ “[a]lternatives to restrictive housing . . . in every case possible.” Filing 249-90 at 4.
Prior to assigning an inmate to longer-term restrictive housing, a Unit Classification Committee (including, at least, a unit manager, case manager, and unit sergeant) must conduct an impartial classification hearing. Filing 249-90 at 9. The inmate must be notified of this hearing at least forty-eight hours beforehand and informed that “he or she may present a written appeal of the recommendation at the time of . . . [the] hearing.” Filing 249-90 at 9. If the inmate cannot prepare a written request or if the issues are exceptionally complex, they must be provided staff assistance or a staff representative. Filing 249-90 at 9. Inmates may also submit written appeals, and they must receive assistance if their “English reading and writing skills don’t support preparing” one. Filing 249-90 at 10. After the hearing, the Unit Classification Committee must present a recommendation to the Warden and the Institutional Classification Committee for review. Filing 249-90 at 10. The Warden then makes a recommendation to the Multi-Disciplinary Review Team, which makes the final placement decision. Filing 249-90 at 10. Inmates may appeal the Multi-Disciplinary Review Team’s decision to the Director. Filing 249-90 at 11. This hearing process must be repeated at least every 90 days. Filing 249-90 at 11.
Finally, other ARs establish policies to implement the provisions of the ADA, Filing 24987 at 3-7, and to ensure inmates have access to oral and written interpretation services, Filing 24988 at 3-5.
The policies established in the ARs apply to every inmate housed in a NDCS facility including the eleven named Plaintiffs. Plaintiffs point to the ARs and other policies as evidence that healthcare is centralized at NDCS and that implementation and enforcement of healthcarerelated policies falls entirely within Defendants’ control. Filing 250 at 10-33.
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b. Individual Plaintiffs’ Claims The Court next turns to the individual named Plaintiffs’ claims regarding inadequate healthcare, use of isolation, and lack of compliance with the ADA and RA in order to determine if these individuals will adequately represent the proposed class and subclasses and if they have claims appropriate for class treatment.
i. Hannah Sabata Hannah Sabata is housed in NCCW. Filing 1 at 6. She has been there since June 17, 2013.6 Filing 1 at 6-7. According to her Declaration, Sabata suffers from bipolar type one disorder with psychotic features, PTSD, delusional disorder-erotomaniac type, and depression. Filing 249-15 at 2. During her time with NDCS, Sabata has experienced delays in accessing mental health services. Filing 249-15 at 3. According to Sabata, when she requests to see her therapist, it takes two or three weeks before she sees him. Filing 249-15 at 3. Sabata reports engaging in hunger strikes on at least four occasions. Filing 249-15 at 3. With regard to dental care, Sabata has experienced months-long delays in seeing a dentist after requesting care. Filing 249-15 at 4-5. For example, on one occasion, Sabata needed to have her wisdom teeth removed. Filing 357-21 at 49. When she requested the procedure, the dentist said to “write a kite and he’ll do x-rays on them.” Filing 357-21 at 49. Sabata then submitted an IIR asking for dental care. Filing 357-21 at 49. As of the date of her deposition testimony, Sabata had not seen a dentist in over a year. Filing 357-21 at 49-50. During her incarceration, Sabata reports six or seven interactions with the BOP. Filing 24915 at 5. Relevant to the claims presented in this case, Sabata asserts that no one from either the
6 Sabata was released on parole in November 2017. Filing 54 at 1. Her parole was revoked, and she was returned to NDCS custody in January 2018. Filing 54 at 1. Defendants agree that Sabata’s reincarceration in NDCS custody makes any court ruling on its previously filed suggestion of mootness unnecessary. Filing 54 at 1.
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BOP or NCCW asked if she had a disability and if she needed an accommodation for that disability. Filing 249-15 at 5. However, during her deposition on March 19, 2018, Sabata was asked if she had a disability to which she responded, “I don’t think so.” Filing 357-21 at 46. Sabata also testified that she was never denied participation in a program because of a disability. Filing 357-21 at 49.
Sabata has also been placed in restrictive housing. Filing 249-15 at 3-4. At one point, Sabata claims to have been in restrictive housing for a week short of a year. Filing 357-21 at 40. While in restrictive housing, Sabata could spend one hour out of her cell per day on weekdays and was locked down continuously on the weekends. Filing 249-15 at 4. In her declaration, Sabata claims placement in restrictive housing has exacerbated the symptoms and manifestations of her mental health issues. Filing 249-15 at 4. When she was asked why she had been placed in restrictive housing in the past, Sabata testified it was due to an “escape attempt,” making phone calls about an escape attempt, being in an unauthorized area, and swinging on a swing set. Filing 357-21 at 28.
ii. Dylan Cardeilhac Dylan Cardeilhac has been detained in NDCS facilities since 2014, most recently at TSCI. Filing 249-1 at 1. Prior to that he was housed at DEC and NCYF. Filing 249-1 at 1. Cardeilhac claims that when he first arrived at DEC for intake, he only received a brief medical screening and dental exam. Filing 249-1 at 2. Cardeilhac does not have any specific diagnosed medical issues. Filing 249-1. However, he has complaints about NDCS’s response to isolated medical episodes. Filing 249-1. The only instruction he received on how to access medical care was to “file a kite”. Filing 249-1 at 2. On one occasion when he felt sick, had trouble breathing, and had a severe nosebleed, Cardeilhac filed an emergency kite but did not receive medical care for three days. Filing 249-1 at 2. Cardeilhac also claims he waited several months before he received dental
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treatment after he complained of pain from his wisdom teeth. Filing 249-1 at 5. Finally, Cardeilhac claims the BOP process was not well explained to him and that he was discouraged from attending the BOP hearing by his case manager and unit manager. Filing 249-1 at 5.
Cardeilhac’s main complaint with the NDCS system centers around its mental healthcare. Cardeilhac alleges NDCS was inadequate in its responses to his suicidal episodes. Filing 249-1 at 2-3. According to his declaration, Cardeilhac was taken off his mental-health medications without being able to see an NDCS doctor. Filing 249-1 at 2. His ability to access mental healthcare is limited to filing an IIR, although he rarely receives a response unless he threatens suicide. Filing 249-1 at 3.
Cardeilhac further complains of NDCS’s use of restrictive housing. Filing 249-1 at 3-4. Cardeilhac estimates that of his five years in prison, he has spent three and a half years confined to restrictive housing. Filing 249-1 at 3. During his time in restrictive housing, Cardeilhac is only allowed to exercise outside for one hour a day, five days a week. Filing 249-1 at 3. Cardeilhac alleges his time in restrictive housing has negatively impacted his existing mental health issues, making him “intensely angry” and leading to him going on a hunger strike. Filing 249-1 at 4.
iii. James Curtright James Curtright has been in NDCS for more than thirty-two years. Filing 249-21 at 1. He is currently incarcerated at OCC.7 Filing 249-21 at 1. In the past he has been housed at LCC and DEC. Filing 249-21 at 1. Curtright is deaf and relies on the use of American Sign Language (“ASL”). Filing 249-21 at 1. Curtright testified that he has asthma and “some heart-related issues.” Filing 357-24 at 27-28. He claims he was not provided an interpreter during some of his interactions with doctors, which impacted his ability to effectively communicate with them. Filing
7 Curtright is not included as a named Plaintiff for the isolation subclass so this Court will forgo any inquiry into the facts surrounding his time in restrictive housing. Filing 1 at 68.
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357-24 at 28. Curtright further complains NDCS frequently denies him an ASL interpreter during dental appointments. Filing 249-21 at 10. Curtright reported an incident in 2017 where a dentist at LCC put a crown on one of his teeth without consulting him. Filing 357-24 at 40. The crown ended up causing him excruciating pain and had to be removed. Filing 357-24 at 40.
Curtright contends that during the intake process he did not receive any information from NDCS regarding accommodations for disabilities. Filing 249-21 at 2. In addition, Curtright expresses concerns about the phone systems, emergency-warning systems, and closed captioning for television. Filing 357-24 at 70, 71, 74-75. Finally, although he is serving a life sentence and is not eligible for parole, Curtright claims a 2016 parole hearing had to be postponed for one month so NDCS could locate an ASL interpreter. Filing 249-21 at 10.
iv. Jason Galle Jason Galle has been in the custody of NDCS for ten years, most recently at NSP. Filing 249-26 at 1. In the past, he was housed at DEC. Filing 249-26 at 1. Galle arrived at DEC in February of 2010 with a gunshot wound to his leg which required him to use crutches. Filing 24926 at 2. Despite his need for crutches, NDCS did not make any accommodations for Galle. Filing 249-26 at 2. NDCS also discontinued Galle’s prescription for the pain medications he had been taking for his leg and gave him ibuprofen and tramadol instead. Filing 249-26 at 2. Primary to Galle’s complaint is the lack of treatment he received for his leg, specifically surgery to repair his broken femur. Filing 249-26 at 4-5. Galle alleges he filed numerous grievances requesting treatment for his femur which he claims were ignored. Filing 249-26 at 5. Galle claims he has repeatedly requested medical attention for his leg since 2010. Filing 357-23 at 96. In August of 2016, NDCS agreed Galle needed surgery to repair his leg, but the operation did not occur until August 25, 2017. Filing 249-26 at 5.
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Galle has also been placed in restrictive housing. Filing 249-26 at 6. During his multiple experiences in restrictive housing, Galle had limited access to medical care. Filing 249-26 at 6. Galle states that his time in restrictive housing, “caused the deterioration of [his] mental health and led [him] to experience severe symptoms of paranoia, anxiety, depression, and inability to sleep.” Filing 249-26 at 6. Galle has experienced mental-health problems such as paranoid schizophrenia, anxiety, and depression for most of his life and believes NDCS was ineffective in addressing his mental-health needs. Filing 357-23 at 60-87. Galle alleges the dental care provided by NDCS is inadequate and prone to delays. For example, Galle recalls an instance where he requested a dental appointment due to two of his fillings coming out but was not seen by a dentist for three months. Filing 249-26 at 8-9. Galle contends that filing IIRs is generally ineffective at addressing his medical needs. Filing 249-26 at 6-7. Additionally, Galle asserts there was a lack of information provided at the intake process and a lack of information regarding parole. Filing 249-26 at 9-10.
Finally, Galle complains about the accommodations provided to him for his injured leg. Filing 249-26 at 9. During his deposition, Galle states that when he first arrived at DEC, he was not given any accommodations for his broken leg and he was housed in a “normal housing unit.” Filing 357-23 at 17. At NSP, Galle was provided a cane, a shoe lift, a lower bunk assignment, and, later in his incarceration, physical therapy. Filing 357-23 at 18.
v. Richard Griswold Rischard Griswold has been in NDCS custody since June 11, 2008, and is currently incarcerated in TSCI. Filing 249-3 at 1. He was previously housed at DEC. Filing 249-3 at 1. According to Griswold, he has chronic hip problems and tremors which impact his mobility and require him to frequently use a wheelchair or a walker. Filing 249-3 at 1. Griswold is also legally blind in one eye. Filing 249-3 at 1.
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Griswold claims NDCS’s initial intake process is flawed and there is a lack of information and training regarding how to obtain medical, dental, mental health, and disability-related care. Filing 249-3 at 2. Griswold’s list of concerns includes the confidentiality of the grievance process, discontinuation of medicines, and access to healthcare while in solitary confinement. Filing 249-3 at 2-3. Griswold’s most pressing concern is the lack of accommodations provided to help him with his mobility and vision issues. Filing 249-3 at 3. However, according to his deposition testimony, Griswold has not sought help for his vision within the last few years. Filing 316-6 at 2. Griswold expresses concerns about the mental health treatment he received while on “suicide watch” and describes the conditions in restrictive housing at TSCI as “barbaric.” Filing 249-3 at 4-5. Finally, Griswold states he does not know when his last dental appointment was or if anyone ever instructed him on the parole process. Filing 249-3 at 6.
vi. Michael Gunther Michael Gunther has been an inmate with the NDCS since April 15, 2005. Filing 249-4 at 1. He is currently housed at NSP. Filing 249-4 at 1. He has also been housed at DEC, Lincoln Regional Center, LCC, and TSCI. Filing 249-4 at 1. Gunther’s health issues include diabetes, neuropathy, mood disorder not otherwise specified, and adjustment disorder. Filing 249-4 at 2. In addition, he is legally blind due to traumatic brain injury and suffers from diabetes-related complications. Filing 249-4 at 2. Gunther’s complaints against NDCS are wide-ranging. He claims that there was a lack of screening regarding his disabilities and medications he was taking when he first arrived at NDCS. Filing 249-4 at 1-2. He claims he has experienced delays in medical treatment necessary to treat his neuropathy, diabetes, and pain resulting from ill-fitting dentures. Filing 249-4 at 5-6. Gunther
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also alleges poor dental care in the form of unnecessary tooth extractions and ill-fitting dentures. Filing 361-2 at 136-148.
Gunther further complains about his treatment in restrictive housing. He alleges that while in restrictive housing, he did not receive eye-drops for twenty-eight days to treat an eye infection. Filing 294-4 at 3. In addition, while in restrictive housing, the materials he used to assist him with his blindness were confiscated, he was not adequately fed, and his mental health deteriorated. Filing 249-4 at 2-3. In another instance, Gunther’s dentures were confiscated while he was in restrictive housing for periods of two to three weeks. Filing 361-2 at 160. When Gunther was suicidal, NDCS isolated him which he alleges continued to damage his mental state. Filing 249-4 at 6.
Finally, Gunther asserts NDCS failed to accommodate his blindness. Filing 249-4 at 4. NDCS apparently confiscated his assistive materials multiple times, did not provide him with training on how to use his tapping cane, and did not provide porters to assist him in moving around the NDCS facility. Filing 249-4 at 4. Gunther also alleges on several occasions, NDCS has not assisted him in filling out grievance forms. Filing 249-4 at 3. According to Gunther, when he submitted some of his grievances, a case manager would throw them “in the garbage.” Filing 3612 at 68. He claims eleven to fifteen of his grievances have disappeared. Filing 361-2 at 67-68. This, plus a lack of training on how to fill out disability requests and prepare for BOP hearings, has made it difficult for Gunther to participate in NDCS programming and BOP hearings. Filing 2494 at 2, 7.
vii. Angelic Norris Angelic Norris is housed at NCCW. Filing 357-22 at 6. She is blind and has been diagnosed with a developmental disability, bipolar disorder, congestive heart disease, and diabetes. Filing
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357-22 at 32. Filing 1 at 16. In addition, Norris suffers from high blood pressure. Filing 357-22 at 17. While at NCCW, Norris claims she has not received adequate mental-health services because the only doctor at the facility is “not a very good doctor” in her opinion. Filing 357-22 at 64.
In addition to her medical concerns, Norris complains about the use of restrictive housing. She has been placed in restrictive housing several times for fighting and as a form of protective custody. Filing 357-22 at 19-20. While in restrictive housing, Norris was given two hours of outof-cell time and was treated “pretty good.” Filing 357-22 at 20.
Norris claims she has been denied participation in activities and programs. Filing 357-22 at 33. However, when she was asked about these denials, she testified the programs were a waste of time. Filing 357-22 at 33-34. With regard to accommodations, Norris requested and received a braille block which she returned because she “didn’t like it.” Filing 357-22 at 38-39. NDCS has also provided her with a talking clock and a clear backpack. Filing 357-22 at 39. Norris has participated in classes and programming at NDCS. Filing 357-22 at 39. She was not provided audio or braille materials for those classes but admits she did not request them. Filing 357-22 at 39. Norris also claims to have “jaw problems” but does not report any deficiencies in dental treatment while at NCCW. Filing 357-22 at 55-59. However, she later claimed not to be receiving dental services while at NCCW. Filing 357-22 at 65.
viii. R.P. In support of their motion for class certification, Plaintiffs have not submitted a transcript of a deposition or a declaration from Plaintiff R.P.
ix. Isaac Reeves Isaac Reeves has been in NDCS custody since November 2013. Filing 249-2 at 1. He is currently at TSCI and has previously been in DEC, NSP, and NCYF. Filing 249-2 at 1. Upon
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arriving at NCYF, Reeves claims he does not remember receiving any information about how to file a grievance or access services such as medical, dental, or mental healthcare. Filing 249-2 at 12. He does not remember receiving any sort of medical or dental examination. Filing 249-2 at 2. While in NDCS custody, Reeves has experienced tooth pain, bleeding, and tooth discoloration. Filing 249-2 at 5. According to Reeves, he waited months before his tooth was examined. Filing 249-2 at 5. There was another instance where the whites of Reeves’ eyes turned yellow and he thought he had hepatitis. Filing 249-2 at 2. This caused Reeves to file an IIR requesting to be seen by a doctor and get tested. Filing 249-2 at 2. Reeves claims he waited six or seven months before he was tested. Filing 249-2 at 2-3. On several occasions, Reeves attempted suicide by opening a vein. Filing 249-2 at 2. During one of these attempts, Reeves alleges a correctional officer watched as Reeves cut himself. Filing 249-2 at 2. It took approximately an hour after Reeves cut himself before he was placed into an ambulance. Filing 249-2 at 2.
Reeves has suffered from mental-health issues during his time in NDCS custody. Filing 249-2. These issues are exacerbated by his placement in restrictive housing. Filing 249-2 at 3-4. Reeves estimates that he has spent a total of five years in restrictive housing. Filing 249-2 at 4. Reeves has been in restrictive housing at NCYF, NSP, and TSCI.8 Filing 249-2 at 4. Filing 35714 at 22. While in restrictive housing at NCYF, Reeves asked for mental health treatment, but it took “a couple months” to receive treatment. Filing 357-14 at 29. The privileges available in restrictive housing vary from one facility to another but Reeves described the conditions for restrictive housing at NCYF, TSCI, and NSP as “miserable”. Filing 249-2 at 4-5. For instance, Reeves describes the conditions at TSCI’s restrictive housing as follows:
There [were] no windows. You had very little human contact. The only thing outside your door window to look at was a wall, and there’s black mold everywhere.
8 Reeves also characterized his time at DEC “in the skilled nursing facility on five-point [restraints]” as being restrictive housing. Filing 357-14 at 22.
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There was -- the first cell they put me in there was poop on the ceiling, and they didn’t clean it before I came. There was poop on the little cement block where my mattress was. Under the mattress there was poop. And then there was like -- there was nasty stuff everywhere all over that room. It was disgusting. Filing 357-14 at 83. Reeves describes difficulty sleeping, hallucinations, and feelings of anxiousness and hopelessness while in restrictive housing. Filing 249-2 at 5. During his time in restrictive housing at TSCI, Reeves was only able to exercise one hour a day, five days a week. Filing 249-2 at 4. Due to being placed in restrictive housing, Reeves has not been able to participate in programming that would assist his parole eligibility. Filing 249-2 at 4.
x. Zoe Rena Zoe Rena has been incarcerated since July of 2015. Filing 249-12 at 1. She is currently housed at NCCW. Filing 249-12 at 1. She has also been housed at the Work Ethic Camp, Community Corrections-Omaha, and Community Corrections-Lincoln. Filing 249-12 at 1. During her time with NDCS, Rena suffered from a chronic skin rash. Filing 249-12 at 2-3. Rena alleges that the rash was neither diagnosed nor treated properly. Filing 249-12 at 2-3. When she requested to see a dermatologist to treat her skin rash, she was told that NDCS does not employ a dermatologist and it would not send her to one. Filing 249-12 at 2. Rena claims that none of the various medications she was prescribed to treat her rash was effective. Filing 249-12 at 2-3. Rena also expressed concern over how medications are distributed. Filing 249-12 at 4. In addition to her skin rash, Rena has repeatedly asked for treatment for tooth, mouth, and jaw pain. Filing 249-12 at 3. Rena notes that she has experienced long delays in receiving this care which has led to more pain and discomfort. Filing 249-12 at 3. Moreover, following one dental procedure, NCCW noted that she had two large abscesses in her mouth which it did not treat for
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two months. Filing 249-12 at 3. Rena also alleges instances where the dental staff extracted her teeth unnecessarily. Filing 249-12 at 3.
Rena has been placed in restrictive housing several times. Filing 249-12 at 4. She claims that NDCS’s observation of inmates’ mental health while in restrictive housing is inadequate. Filing 249-12 at 4. Rena also expresses concerns about the confidentiality of the grievance system and the use of inmate medical porters. Filing 249-12 at 2. Finally, Rena describes inadequate screening procedures and BOP assistance. Filing 249-12 at 1, 5.
xi. Brandon Sweetser Brandon Sweetser has been an inmate with NDCS for approximately five years. Filing 24934 at 1. Prior to his current sentence, Sweetser was incarcerated from November 2003 through June of 2010 at NDCS facilities. Filing 249-34 at 1. He has experience living at Community Corrections-Omaha, NSP, and DEC. Filing 249-34 at 1. Sweetser has been diagnosed with hepatitis C. Filing 249-34 at 3. NDCS has repeatedly denied Sweetser treatment for hepatitis C because his condition is not severe enough. Filing 24934 at 3. In January of 2016, Sweetser began having severe stomach pain and cramping. Filing 24934 at 4. He was taken to the Skilled Nursing Facility (“SNF”) at NSP where a nurse accused him of faking his symptoms and sent him back to his housing unit. Filing 249-34 at 4. Between one to two days passed until Sweetser was reexamined and it was discovered he had a ruptured appendix. Filing 249-34 at 4. After waiting another twenty-four hours at the SNF, Sweetser was taken to a hospital where emergency surgery was performed. Filing 249-34 at 4. After the surgery, the doctor advised Sweetser that he needed to get up and walk every hour or two. Filing 249-34 at 4. However, due to being housed in “max custody,” Sweetser was shackled to a bed and was unable to follow this medical advice. Filing 249-34 at 4. Due to not being able to get up and walk, Sweetser’s legs
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and ankles became swollen and he was forced to use a walker for fifteen months after his appendix surgery. Filing 249-34 at 5. Additionally, Sweetser reports NDCS suddenly stopped giving him his medications without a doctor’s consultation. Filing 249-34 at 6. As a result, Sweetser suffered withdrawal symptoms such as hot and cold flashes, night sweats, inability to sleep, muscle aches, and diarrhea. Filing 249-34 at 6.
Sweetser has also had issues with dental care at NDCS. Filing 249-34 at 6. As of February 2019, Sweetser claims to have only seen the dentist once in four years. Filing 249-34 at 6. Sweetser also claims that mental healthcare is lacking at NDCS. Filing 249-34 at 6-7. According to Sweetser, he has experienced weeks long delays after he sends a kite requesting mental healthcare before he is seen. Filing 249-34 at 7. Sweetser also alleges deficiencies in the intake screening system and the grievance process. Filing 249-34 at 2-3, 6. Finally, Sweetser claims that no one at NDCS has adequately explained the parole process to him. Filing 249-34 at 8.
c. Additional Evidence In addition to the individual named Plaintiffs’ claims as set forth above, Plaintiffs and Defendants have presented extensive evidence from expert witnesses and other supporting documentation regarding the main healthcare class and the isolation and disabilities subclasses. Plaintiffs’ experts claim NDCS’s healthcare-related practices and its implementation of the policies outlined above subject all putative class members to the same constitutional harm: a substantial risk of serious injury. See generally Filing 249, Filing 250. Defendants’ experts attempt to refute Plaintiffs’ experts’ opinions and demonstrate that the constitutional harm, if any, is not a
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proper issue for classwide resolution.9 The Court summarizes the evidence presented with respect to each of the subclasses.
i. Healthcare Plaintiffs submit thirteen expert declarations in support of their motion for class certification. See generally Filing 249. Like the named plaintiffs’ claims, the expert opinions cover a wide range of issues relating to healthcare, including intake screening, inmate care while in custody, actions of NDCS healthcare staff, dental care, and mental healthcare.
(1) Intake Screening Plaintiffs assert NDCS’s intake procedures are the first of many ways in which NDCS improperly administers healthcare at its facilities. Intake screenings at all ten NDCS facilities are governed by AR 115.05. All male inmates are screened at DEC and all female inmates are screened at NCCW. Filing 249-58 at 24. Plaintiffs’ healthcare expert is Dr. Marc Stern, M.D., M.P.H. Filing 249-58 at 3. Dr. Stern is a board-certified internist specializing in correctional healthcare. Filing 249-58 at 3. Dr. Stern has previously served as a healthcare expert in several cases, including Parsons v. Ryan, 289 F.R.D. 513, aff’d, 754 F.3d 657 (9th Cir. 2014). Filing 249-58 at 3, 13; Filing 249-59 at 2. Plaintiffs urge the Court to find Dr. Stern’s opinions persuasive based on his background and previous experience as an expert witness. Filing 250 at 15; Filing 249-59. Dr. Stern’s concerns regarding the Nebraska prison system’s intake process are threefold: 1) the use of licensed practical nurses (“LPNs”) to conduct intake screenings and other
9 The Court reviewed the substantial material submitted by both sides purportedly in relation to class certification. The Court found much of it related to the merits of Plaintiffs’ claims, not the narrower question of class certification. Accordingly, to the extent such materials are not appropriate for the Court to consider at this stage, the Court has not relied upon such information in deciding the question of class certification. The Court further has not included an analysis of certain purported expert opinions which the court does not find relevant or persuasive in deciding the certification question.
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examinations; 2) NDCS policies and practices regarding tuberculosis (“TB”) screenings; and 3) intake screenings not being performed in a timely manner. Filing 249-58 at 24-28.
Dr. Stern first contends that LPNs do not have the expertise, nor are they permitted under their licenses, to exercise the considerable clinical expertise and judgment needed for competent medical screenings. Filing 249-58 at 24. However, it is not clear whether LPNs regularly conduct intake screenings at NDCS facilities, or whether this happens only sporadically. Compare Filing 249-58 at 24 & n.18 (Stern deposition stating he reviewed three patient forms reflecting intake by an LPN), with Filing 249-80 at 75-76 (Deol deposition stating to his knowledge, RNs conduct intakes); and Filing 249-60 at 11-13 (showing the three instances identified by Stern were a small portion of the sixty-one records Stern reviewed). Further, to the extent LPNs are used to conduct intakes, Defendants’ expert, Dr. David Thomas, M.D., J.D., EdD, states that use of LPNs at intake screenings is consistent with “virtually every other correctional system in the country” and thus does not support the notion that individual inmates suffer a uniform risk of harm from the practice. Filing 316-31 at 12
Dr. Stern next asserts NDCS’s tuberculosis (TB) screening process is inadequate because screening nurses do not ask enough questions about possible symptoms, nurses fail to determine whether the inmate has previously tested positive for TB, and nurses improperly retest inmates for false-negative results. Filing 249-58 at 24-26. However, with respect to the screening questions, Dr. Stern does not address how checking for these other symptoms is not covered by other parts of the intake screening nor does he explain how the lack of additional questions places all inmates at a substantial risk of serious harm. Filing 249-58 at 25. With respect to previous TB tests, the ARs state, “At the time of entry into NDCS, all inmates shall be tested by facility medical staff for Tuberculosis unless there is documentation of a previous positive test result.” Filing 249-58 at 26
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n.20. Dr. Stern complains of, but provides no real-world incidents of, nurses automatically conducting a second test even where the patient self-reported a previous positive test. Filing 24958 at 25-26. Finally, with respect to false-negative retesting, Dr. Stern writes that “[t]he practice at DEC is for nurses to [improperly] inject a second skin test if the first one is negative” and “according to an Intake nurse, they do so 3 to 5 days after arrival, which is too soon according to CDC guidelines and NDCS’s own policy.” Filing 249-58 at 26 (emphasis added).Stern’s speculation and input from one unnamed intake nurse does not show a systemic breakdown of the NDCS policy regarding TB testing.
Dr. Stern’s third broad area of concern is that inmates do not receive timely intake examinations after first entering an NDCS facility. Filing 249-58 at 26. AR 115.05 requires a screening to be performed “upon the patient’s arrival at the facility.” Filing 249-84 at 3. However, despite Dr. Stern’s opinion, there is no evidence that intake screenings are usually, or even regularly, conducted in an untimely fashion. See Filing 249-80 at 38 (Deol deposition stating intake health screenings are completed within 24 hours of arrival in 90% of cases); Filing 316-31 at 12 (Dr. Thomas declaration concluding “[t]here is no ‘delayed and flawed’ intake screening”); Filing 357-23 at 15-17 (Galle describing intake upon arrival); Filing 361-2 at 27-32 (Gunther describing intake upon arrival); Filing 357-14 at 13-15 (Reeves describing intake upon arrival); Filing 35721 at 23-26 (Sabata describing intake upon arrival); Filing 357-22 at 14-17 (Norris describing intake upon arrival).
(2) Inmate Care While in Custody Dr. Stern contends there are numerous problems with the healthcare inmates receive after their initial intake screening and while they are in NDCS custody. Filing 249-58 at 28. However, many of Dr. Stern’s opinions are based on generalizations or isolated instances of allegedly
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inadequate care rather than pervasive, systemic problems. For example, Dr. Stern finds fault with NDCS’s handling of emergency situations because nurses do not always respond to the right location or in a timely manner, only LPNs might respond, staff might not have the proper medical equipment, and cardiac patients may be moved rather than treated on the spot, which he believes is preferable. Filing 249-58 at 28-35. However, Dr. Stern points to just two concrete examples and one practice at one facility wherein he found issues with failed nurse responses to medical emergencies. Filing 249-58 at 28-29. With respect to alleged delays, Dr. Stern points to a single example of an eighteen-minute delay to an inmate experiencing a seizure due to a lack of an oncall practitioner for emergencies. Filing 249-58 at 34. Dr. Stern’s opinion regarding NDCS moving cardiac patients and increasing their risk of death is based on conversations with NDCS staff and “publicly available information”; Dr. Stern points to no specific policy or any known instance of this actually occurring. Filing 249-58 at 34-35.
Dr. Stern also expresses concern that inmates might not receive proper care for less serious situations, which he terms “urgent care” because they might not be able to gain access to the appropriate care, either because of problems getting the attention of the correctional officer, the officer failing to pass a medical request along, or improper medical responses to an urgent care request. Filing 249-58 at 35.
Dr. Stern also takes issue with the provision of non-urgent episodic care. Filing 249-58 at 42. According to Dr. Stern, the administration of such care at NDCS is flawed because inmates often request non-urgent episodic care via IIRs, which violates confidentiality, does not result in review by a medical professional, and can cause delays in care. Filing 249-58 at 42-45. However, Defendants’ evidence demonstrates that IIRs are generally triaged daily by a health professional. Filing 249-80 at 96-97. Further, of the many IIRs reviewed by Defendants’ expert, Dr. Thomas,
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an “overwhelming majority of them” that dealt with medical care were answered in less than twenty-four hours. Filing 316-31 at 5.
Dr. Stern also criticizes the provision of day-to-day care at NDCS, which he terms “chronic care.” Filing 249-58 at 51. Dr. Stern argues that NDCS’s chronic-care system suffers from many inadequacies, including failure to see patients at appropriate intervals, failure to follow up, and discoordination of care. Filing 249-58 at 52. Dr. Stern also sees issues with provision of care to inmates in restrictive housing and those in need of interpreter services. Filing 249-58 at 60-61. As evidence of these shortcomings, Dr. Stern references five examples of perceived failures by NDCS to provide medical care involving significantly different health conditions and needs: asthma, Crohn’s disease, breast cancer, hepatitis C, and an abnormality in a pap smear. Filing 249-58 at 52-56. Dr. Thomas opined that chronic care at NDCS is “performed well” and Dr. Stern’s contention that there are problems in this area “cannot be substantiated.” Filing 316-31 at 12.
(3) Actions of NDCS Healthcare Staff Plaintiffs also point to a number of ways in which NDCS staff fail to provide adequate medical care, including using inmates as porters, Filing 249-58 at 13-14; failing to follow orders, Filing 249-58 at 14-16; poor clinical decision-making; Filing 249-58 at 16-22; inaccurate medication administration, Filing 249-58 at 61-70; poor record-keeping, Filing 249-58 at 70-71; and failure to track and remedy problems in the system, Filing 249-58 at 70-78. However, the evidence shows these purported issues to be either speculation on Dr. Stern’s part, or the isolated actions of individual staff members rather than policy mandates or routine practice on NDCS’s part. For example, Dr. Stern expresses concerns over inmate porters’ lack of training and ability to see other inmates’ medical information, Filing 249-58 at 13-14, but Dr. Thomas points out that
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porters who engage in basic medical tasks, like taking an inmate’s vital signs, receive training equivalent to a Certified Nursing Assistant, as opposed to those porters who merely assist with food and transportation needs who receive no such training. Filing 316-31 at 11.
With respect to other inappropriate actions by staff, Dr. Stern provides only isolated examples of allegedly insufficient healthcare. See, e.g., Filing 249-58 at 15-16 (two examples of staff not following orders); Filing 249-58 at 17-22 (nine examples of allegedly poor clinical decision-making); Filing 249-58 at 64-65 (four examples of errors in medication administration). Dr. Thomas “witnessed no signs of poor medical decision making, much less on a system-wide basis. The physicians and mid-levels were all concerned for their patients and practiced modern correctional care.” Filing 316-31 at 12. Thus, despite Dr. Stern’s numerous concerns, he fails to demonstrate that inmates routinely suffer from the same deficiencies in healthcare or that NDCS staff act inappropriately on a system-wide, rather than isolated, basis.
(4) Dental Care Plaintiffs allege deficiencies in the dental care provided by NDCS as well. In support, they present the expert testimony of Jay D. Shulman, D.M.D., M.A., M.S.P.H. Filing 249-53 at 1. Dr. Shulman concludes that the dental care provided by NDCS is “consistently inadequate” and that the deficiencies are “attributable to systemic problems caused by inadequate dentist staffing and inadequate policies and procedures.” Filing 249-53 at 3. He bases his conclusion on allegedly inadequate diagnosis and treatment of certain dental conditions, Filing 249-53 at 7, 40-43, 44-50; delayed or denied dental care, Filing 249-53 at 50-64 (illustrating delays in urgent care, denture fabrication, chewing difficulty); inadequate record-keeping, Filing 249-53 at 65-66; and inadequate dental staffing, Filing 249-53 at 28-30, 66. In support of his opinions, Dr. Shulman
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points to examples from his interviews with two Plaintiffs and his review of the dental records of the named plaintiffs and a number of randomly selected prisoners.
In response, Defendants present the testimony of their dental expert, Philip R. Rich, D.D.S. Filing 315-3. There is a dispute between Dr. Rich and Dr. Shulman with regard to the referenced inadequacies. Filing 357-12 at 4. After reviewing charts and declarations from the named plaintiffs, Dr. Shulman’s expert report, and a variety of other materials relating to this case, Dr. Rich determined that NDCS provides adequate dental care. Filing 315-3 at 3-4. He states that NDCS’s “dental practice operates in a capable and efficient manner” and that the “staff is sufficient . . . to treat and schedule all dental procedures.” Filing 315-3 at 4. Dr. Rich notes that “patients were seen on a timely basis including emergency needs” and that “[a]ccepted guidelines were followed and adhered to.” Filing 315-3 at 4. After speaking with Dr. Eric Smith about chart reviews, Dr. Rich stated that “Dr. Shulman lacks proof of inadequate or failed treatment” and that “[m]any of his comments are inaccurate.” Filing 315-3 at 5. Further, Dr. Rich criticized Dr. Shulman’s concerns regarding delays, stating that “[e]ven in a well-managed private practice, a patient can have x-rays, treatment plan, chronic periodontal conditions, and extensive caries of teeth that can and do take up to 6 months to complete treatment.” Filing 315-3 at 6. Additionally, Dr. Rich noted that “not all patients . . . complete dental treatment.” Filing 315-3 at 6.
More broadly, Dr. Rich suggests that “[j]ust as the complaints of the Plaintiffs are different, their dental conditions are different. They lack a common theme.” Filing 315-3 at 7. Thus, in Dr. Rich’s opinion, each complaint should be taken individually because they lack the commonality necessary to reveal systemic problems. Filing 315-3 at 7. Specifically, he states “[t]he dental policies at NDCS do not impact all dental inmates the same way. Because of this, inmates do not all face the same risk of injury.” Filing 315-3 at 8. For these reasons, Dr. Rich opines that NDCS’s
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dental care “is consistent with care provided by dentists in the Nebraska community,” and that “the treatment of inmates is professionally adequate and does not place inmates at a substantial risk of harm.” Filing 315-3 at 8.
(5) Mental Healthcare Plaintiffs identify mental healthcare as another deficient aspect of the healthcare provided by NDCS. Plaintiffs’ expert, Dr. Pablo Stewart, identified eight problems with respect to mental healthcare: staffing shortages, Filing 249-38 at 13-16; inadequate identification/screening procedures, Filing 249-38 at 16; failure to differentiate between appropriate levels of mental healthcare, Filing 249-38 at 16-19; poor access to care through the use of IIRs and lack of NDCS response thereto, Filing 249-38 at 21-24; poor record-keeping including accessibility of records during telepsychiatry, Filing 249-38 at 24-26; inadequate mediation administration, Filing 249-38 at 27-33; the use of restrictive housing for those with mental illness, Filing 249-38 at 33-34, and inadequate suicide prevention, Filing 249-38 at 35. According to Defendants, the issues Dr. Stewart identifies are speculative, not supported by evidence of widespread problems, or are otherwise refuted by Defendants’ experts, Dr. Terry Davis (Filing 315-1) and Dr. Dean Aufderheide (Filing 316-38). For example, in support of his claim of staffing shortages causing harm, Dr. Stewart points to one example of an inmate who allegedly committed suicide after not receiving mental-health treatment. Filing 249-38 at 15-16. However, according to Dr. Davis, who reviewed Dr. Stewart’s declaration, this inmate had been evaluated and treated several times by mental health treatment providers, including by a psychiatrist, and even refused mental health treatment prior to his death. Filing 315-1 at 4. Similarly, Dr. Stewart’s claim of poor mental-health screening is refuted by Dr. Davis’s review of two intakes he observed at DEC which included an evaluation by a registered nurse who
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performed a mental health assessment. Filing 315-1 at 4. Dr. Stewart’s concerns about the use of records for telepsychiatry is refuted by Dr. Davis’s statement that telepsychiatry is a recognized and accepted method of performing psychiatric evaluations and treating psychiatric patients and thus its use does not place all innates at a serious risk of harm. Filing 315-1 at 6. In addition, NDCS apparently has a staff member present and the inmate’s chart available during all telepsychiatry appointments in order to alleviate any concerns about incomplete information. Filing 315-1 at 6.
Overall, Dr. Stewart fails to demonstrate the concerns he expresses are commonly occurring in NDCS facilities and pose a common risk applicable to all patients with mental health concerns. Rather, taken with Defendants’ evidence, Dr. Stewart expresses only general concerns and speculation about how processes might negatively impact individual inmates and should be improved.
ii. Additional Evidence Regarding Restrictive Housing Plaintiffs present additional evidence in support of certifying their proposed isolation subclass. Restrictive housing units can be found in five of the ten NDCS facilities: LCC, NSP, NCCW, NCYF, TSCI. Filing 249-42 at 28. During the six-month period from January 1, 2019, to June 30, 2019, there was an average daily population of 335 inmates in restrictive housing. Filing 352-9 at 2. As of January 10, 2020, there were 295 inmates in restrictive housing. Filing 439 at 23. Plaintiffs put forth the opinions of three experts to assess NDCS’s policies and practices that deal with restrictive housing. Filing 250 at 23. The three experts conclude that the use of isolation is harmful to an inmate’s mental health and sometimes harmful to their physical wellbeing as well, regardless of their underlying mental and physical health. Filings 249-47; 249-42; 249-38. The experts opine that isolation causes harm based on, among other things, lack of out-ofcell time, Filing 249-90 at 17; the lack of personal property, Filing 249-42 at 30; small cell sizes,
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Filing 249-42 at 29, 38; housing two inmates in one cell (“double celling”), Filing 249-42 at 40; Filing 249-47 at 34; severe levels of idleness, Filing 249042 at 32; and lack of access to mental healthcare, Filing 249-38 at 34.
However, much of this testimony pertains to isolation in general, not the specific use of restrictive housing at NDCS. For example, Dr. Craig Haney, Ph.D., J.D., points to the fact that AR 210.01 does not require the exclusion of people with serious mental illness from restrictive housing. Filing 249-42 at 28. However, Plaintiffs do not allege every member of the proposed isolation subclass has a serious mental illness.10 With respect to the harm of housing two inmates in one restrictive-housing cell, there is no evidence that this practice happens to all inmates in restrictive housing, or even that it occurs at all NDCS facilities. See generally Filing 249-42; Filing 249-47.
Defendants’ expert on the issue of restrictive housing, Dr. John Stoner, reviewed the NDCS policies and concludes they are consistent with national standards. Filing 316-47 at 6. According to Dr. Stoner, this fact is illustrated by NDCS receiving accreditation by the American Correctional Association. Filing 316-47 at 6. Dr. Stoner also finds fault with Plaintiffs’ experts’ opinions. For example, Dr. Stoner opines that the studies cited by Dr. Haney do not adequately address other variables that may lead to mental disorders in inmates and suggests the inmates selected as representatives, namely Cardeilhac, Reeves, and R.P., are the “unusual and often extreme of the inmate population.” Filing 316-47 at 15-17. Dr. Haney himself also appears to concede the individualized nature of potential harm resulting from isolation, noting the answer for each inmate
10 Further, as of March 1, 2020, no inmate who is a member of a vulnerable population, including those with a serious medical illness, can be placed in restrictive housing, unless it is for placement in immediate segregation to protect the inmate, staff, or other inmates. Neb. Rev. Stat. § 83-173.03(3).
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in restrictive housing “might very well involve a different kind of treatment modality for different kinds of symptoms that are being manifested.” Filing 316-17 at 4-5.
iii. Additional Evidence Regarding Americans with Disabilities Act/Rehabilitation Act
Finally, Plaintiffs present additional evidence in favor of certifying their proposed disability subclass. Plaintiffs contend that systemic deficiencies deny prisoners with disabilities meaningful access to programs, services, and activities, and NDCS fails to communicate effectively with prisoners with disabilities. Filing 432 at 11-13. Plaintiffs’ expert, Margo Schlanger, believes NDCS policies and practices may lead to under-identification of inmates with disabilities at intake. Filing 249-50 at 19; non-identification of inmates already in custody, Filing 249-50 at 19-24; inaccurate tracking of inmates with disabilities resulting in inadequate accommodations and care, Filing 249-50 at 31-35; inadequate modifications and lack of auxiliary aids to those in need, Filing 249-50 at 35-39; inaccessibility of the grievance process to disabled inmates, Filing 249-50 at 44-45; placement of disabled individuals in restrictive housing, Filing 249-50 at 50; and lack of accommodations to disabled inmates during the parole process, Filing 249-50 at 51-52. She also takes issue with inmate porters being used to assist disabled inmates because of concerns about abuse, inmate privacy, inadequate porter training, unavailability of porters, and better alternatives to the use of porters. Filing 249-50 at 39-40.
Schlanger’s concerns are based on speculation about how policies might impact inmates, not facts supporting that such violations occur or are widespread. Importantly, Schlanger provides few examples of the actual impact of NDCS policy and practice on disabled inmates and no evidence that such impacts affect all disabled inmates in NDCS custody. For example, Schlanger faults NDCS’s system for tracking inmates but identifies no actual harm or substantial risk to
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inmates, instead speculating that, “[w]ith this policy/practice in place, it is only to be expected that every cell or job change, or similar event, will pose significant difficulties for a prisoner with a hard-won modification.” Filing 249-50 at 35. With regard to inadequate notice of an inmate’s disability to staff, Schlanger points to one example where an inmate was unable to hear a correctional officer but was unable to prove that a hearing impairment created the issues. Filing 357-13 at 6. Likewise, Schlanger objects to NDCS’s use of inmate porters to assist those with disabilities because she fears they may feel assisting disabled prisoners is not their job and refuse to do it. Filing 249-50 at 40.
Similarly, Schlanger expresses concerns about disabled inmates being discriminated against during the parole process by the issuance of parole plans that target their mental illness. Filing 249-50 at 35. Filing 357-13 at 12. However, her sole example of this allegedly occurring is plaintiff Sabata being terminated from her housing while on parole due to “her increased needs and [the program’s] inability to address those needs.” Filing 249-50 at 53 & n.53 (quoting Filing 237-5 at 6).
Schlanger opines NDCS has only a “very spare policy addressing” disabled inmate communication systems, but she fails to identify the policy or explain why it is insufficient for all inmates with disabilities. Filing 249-50 at 41. With respect to restrictive housing, Schlanger generalizes that prisoners with disabilities often end up in isolation. Filing 249-50 at 45. Relatedly, Schlanger expresses concern over disabled inmates being placed in special housing units where they have limited access to programs and may face accessibility issues including stairs. Filing 35713 at 10-12. Schlanger fails to tie these concerns to a common risk of harm to all disabled inmates.
Accordingly, while the individual instances Schlanger identifies may or may not present valid claims under the ADA or RA, her testimony does not support that such alleged issues are
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widespread, place all disabled individuals at NDCS at a substantial risk of harm, or are capable of resolution by uniform changes to policy or practice.
3. Analysis on Need for Exhaustion of Administrative Remedies As a preliminary matter, Defendants argue that the Court is obligated to determine whether Plaintiffs have exhausted their administrative remedies prior to deciding the Motion for Class Certification. Filing 433 at 2-3. In support of their contention, Defendants cite to the Eighth Circuit’s opinion in Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000), stating that once a defendant raises the affirmative defense of failure to exhaust administrative remedies, “the court [i]s obligated to proceed to determine whether in fact [the plaintiff] ha[s] exhausted his administrative remedies.” Defendants’ reliance on Chelette, 229 F.3d at 688, is misplaced. The portion of the opinion which Defendants quote did not impose an obligation on courts to determine exhaustion before all other pending motions. See id. Rather, the defendants argued that exhaustion of administrative remedies was a jurisdictional requirement. Id. at 686. The court found it was not jurisdictional but determined it would still address the defendants’ argument regarding exhaustion, despite it being improperly raised as a motion under Federal Rule of Civil Procedure12(b)(1) for lack of jurisdiction. Id. at 687-88. Thus, the court concluded that despite the improper framing of the issue as a jurisdictional one, it was still “obligated” to address the exhaustion issue because it had been raised. Id. at 688 The Eighth Circuit has clarified that the district court must address the question of exhaustion of administrative remedies prior to proceeding to the merits of a case. See Benjamin v. Ward Cty., 632 F. App’x 301 (8th Cir. 2016) (per curiam) (“[W]e conclude that the district court erred by proceeding to the merits of Benjamin’s claims without first determining whether he had
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exhausted administrative remedies that were available . . . .”). Given the analyses and language from the Eighth Circuit in Chelette and Benjamin, the Court doubts it is required to determine exhaustion of administrative remedies prior to denying class certification because such a determination is not one on the merits. See Postawko, 910 F.3d at 1037 (“Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” (citations omitted)).
However, the legal conclusion on this issue is inapposite here. Defendants have conceded that there is at least one member of each class and subclass who has exhausted his or her remedies. Defendants admit the following Plaintiffs have exhausted at least one grievance each: Curtright (member of the main healthcare class, Filing 1 at 66, and disability subclass, Filing 1 at 70); Rena (member of the main healthcare class, Filing 1 at 66, and isolation subclass, Filing 1 at 68); Galle (member of the main healthcare class, Filing 1 at 66, isolation subclass, Filing 1 at 68, and disability subclass, Filing 1 at 70), and Reeves (member of the main healthcare class, Filing 1 at 66, isolation subclass, Filing 1 at 68, and disability subclass, Filing 1 at 70); Filing 179 at 183-84; Filing 439 at 106 (stating defendants “concede that plaintiff Reeves grieved removal from restrictive housing” for exhaustion purposes). The concededly exhausted grievances themselves relate to all three classes by grieving disability accommodations, a variety of healthcare issues, and isolation issues. See Filing 179 at 183-84; Filing 127-37 at 43-44; Filing 127-49 at 2; Filing 439 at 106.11 The Court agrees with the parties that these grievances were appropriately administratively grieved. Thus, the class certification analysis can and should still proceed as to
11 Defendants take issue with the fact that not every healthcare-related issue raised by Plaintiffs was individually grieved to completion. Exhaustion under the PLRA is not so narrow. See McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir. 2004) (finding three incidents were part of inmate–plaintiff’s overarching claim regarding dental services and since one incident was exhausted, the others were not required to be); see also Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (“A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation.”) (citation omitted).
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the main class and each subclass, regardless of the question regarding the order in which a court should address administrative remedies in relation to class certification.
In accordance with the foregoing, the Court turns to the question of class certification itself. 4. Analysis on Class Certification Federal Rule of Civil Procedure 23(a) “ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349, 131 S. Ct. 2541, 2550, 180 L. Ed. 2d 374 (2011). “Rule 23(a) requires plaintiffs to show that the class satisfies the requirements of ‘numerosity, commonality, typicality, and fair and adequate representation.’” Postawko, 910 F.3d at 1037 (citing Luiken, 705 F.3d at 372); see also Fed. R. Civ. P. 23(a). The Court will analyze the Rule 23(a) factors and their applicability to the class and subclasses proposed by Plaintiffs.
a. Numerosity The numerosity prerequisite requires that “the class [be] so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In Postawko, the Eighth Circuit affirmed the district court’s conclusion that a class of at least 2,000 inmates suffering from chronic HCV would satisfy the numerosity requirement. Postawko, 910 F.3d at 1041. The Court concluded, “A class of that size would make ‘joinder of all members . . . impracticable.’” Id. at 1037-38 (quoting Fed. R. Civ. P. 23(a)(1)) (citing Paxton v. Union Nat. Bank, 688 F.2d 552, 559-60 (8th Cir. 1982)). The general proposed class in this case consists of over 5,000 individuals. Filing 250 at 10, 20. In addition, Plaintiffs seek to include in the class future inmates subject to NDCS custody. Filing 1 at 66; Filing 249-75. The proposed disability subclass consists of an estimated 750 inmates plus future disabled inmates, Filing 249-50 at 13-14, while the proposed isolation subclass
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embodies nearly 1800 members plus future inmates who might be subject to isolation as well, Filing 249-92 at 10.
Given the requirements of Fed. R. Civ. P. 23(a)(1) and binding case law interpreting that provision, the Court concludes that the proposed class and subclasses are sufficiently numerous to satisfy Rule 23(a).
b. Commonality “To satisfy Rule 23(a)(2) [regarding commonality], plaintiffs must show their claims involve a common question or contention ‘of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Postawko, 910 F.3d at 1038 (quoting Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 998 (8th Cir. 2016)). “The mere presence of one or more common questions is not enough; rather, the district court must examine the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (quoting Yates v. Collier, 868 F.3d 354, 361 (5th Cir. 2017)). According to the Supreme Court, this provision requires plaintiffs to “demonstrate that the class members ‘have suffered the same injury,’” not merely violations of “the same provision of law.” Dukes, 564 U.S. at 350, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)). Plaintiffs claim the proposed class presents the common question of whether NDCS violated the Eighth Amendment by being deliberately indifferent to the substantial risk of harm posed by its healthcare policies. See Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 1974, 128 L. Ed. 2d 811 (1994) (“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”).
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Here, Plaintiffs have not demonstrated the proposed class or either proposed subclass presents common issues capable of classwide resolution. With respect to the general class of “all persons who are now, or will in the future, be subjected to the healthcare (including medical, mental health and dental care) policies and practices of NDCS,” Filing 247 at 1, the Court finds the class is too broad and that its members have such disparate medical needs that the questions are neither common nor resolved by a single classwide answer. Plaintiffs have not shown a single policy or question whose resolution would apply across the class. Plaintiffs’ claims present individual instances of alleged indifference or lack of their preferred treatment for their particular medical needs, not classwide issues capable of common resolution.
First, the named plaintiffs suffer from a wide variety of medical issues and most do not have the same or even similar issues in common with other Plaintiffs. For example, Sabata suffers from bipolar disorder, PTSD, delusional disorder, and depression, while Cardeilhac has no diagnosed medical issues. Curtright is disabled, Galle has a broken leg from a gunshot wound, and Griswold suffers from mobility problems and is blind. Gunther has diabetes and mental health issues and is also blind. Norris is blind, has a developmental disability, and suffers from bipolar disorder, heart disease, diabetes, and high blood pressure. Reeves has tooth pain and is suicidal while Rena suffers from a skin rash and dental pain. Finally, Sweetser has been diagnosed with hepatitis C and suffered a ruptured appendix while in custody.
Even for those inmates with somewhat similar medical needs, they complain of different alleged inadequacies in the care they received. For example, while Sabata, Cardeilhac, Curtright, Galle, Gunther, Rena, and Sweetser all claimed to be in need of dental care, they presented with different dental problems requiring various forms of treatment. Sabata and Cardeilhac alleged they received delayed dental care while Curtright complained that the dental care he received was
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improperly performed when a crown was put on wrong without his consent. Galle claims he had fillings that came out and Gunther asserted pain from his dentures as well as unnecessary tooth extractions. While others complained of being unable to receive dental care, Rena alleges she received excessive dental procedures and claimed to have had teeth extracted unnecessarily. She also experienced pain from an abscess in her mouth. Sweetser claims to have only seen the dentist once in four years of living at NDCS facilities. While these complaints can generally be categorized under the seemingly “common” heading of “dental care,” a closer examination of the inmates’ dental needs and the alleged inadequate treatment they each received shows that the issues presented are incapable of common resolution.
Second, the expert opinions also support that Plaintiffs do not present common questions that are capable of classwide resolution. First, as a whole, the experts take issue with a breathtakingly wide variety of policies and procedures at NDCS. As illustrated by the summary of the expert testimony included above, Plaintiffs’ experts address issues ranging from intake screening, the use of LPNs, TB screening, emergent care, urgent care, non-urgent episodic care, chronic care, restrictive housing, interpreter services, inmate porters, medication administration, recordkeeping, dental diagnosis, dental treatment, provision of dental X-rays, mental health identification and screening, mental health protection and care, identifying inmates with disabilities, tracking inmates with disabilities, accommodating inmates with disabilities, and the provision of parole hearings. Many of the expert opinions on these topics are directly disputed by Defendants’ experts. Ultimately, this battle of the experts illustrates to this Court that these disputed areas regarding what is or should be the standards for prison healthcare policy are not capable of resolution in one fell swoop.
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In addition to the breadth of policies and procedures identified by Plaintiffs’ experts, the experts also fail to support the contention that any of the identified shortcomings are common issues. For example, while Dr. Stern identifies what he perceives as three main issues with NDCS’s healthcare intake screening, he fails in many instances to provide examples of these problems actually occurring in NDCS facilities. The few real-world instances Dr. Stern does identify are isolated occasions of alleged inadequate treatment and do not demonstrate a pattern or common policy across the class or subclasses. For example, Dr. Stern points to three patient forms that allegedly show an LPN conducted the intake screening. Filing 249-58 at 24, n.18. However, Dr. Stern’s own list of documents state that he reviewed all eleven of the named plaintiffs’ medical records and fifty additional inmate records for a total of sixty-one records. Filing 249-60 at 11-13. The mere fact that three out of sixty-one medical screenings show the use of an LPN in contravention of NDCS policy does not reflect a wide-spread and systemic deficiency in need of class resolution.
Dr. Stern likewise takes issue with poor decision-making by nurses, medical officers, and other professionals. Filing 249-58 at 16-17. Dr. Stern cites nine different examples of this poor decision making, Filing 259-58 at 17-22, but fails to link these separate, isolated incidents to a common deficiency or theme rather than to poor decision-making by individual actors.
Dr. Stern’s other assertions of supposed systemic inadequacies are not supported by the facts. For example, he asserts that nurses fail to properly screen inmates for TB because they only ask two questions about coughing rather than assessing by direct observation whether a patient has a cough or other symptoms at intake. Filing 249-58 at 25. Dr. Stern does not explain how a nurse conducting an in-person intake is not, by default, engaged in “direct observation.” Dr. Stern also complains that intake examinations are not done in a timely fashion, but Plaintiffs present no
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evidence that inmate screenings are routinely missed or conducted late on a systemic level. Furthermore, Plaintiffs’ signed intake screening sheets appear to show they were screened upon entry to NDCS. See, e.g., Filing 357-23 at 15-17 (Galle describing intake upon arrival); Filing 3612 at 27-32 (Gunther describing intake upon arrival); Filing 357-14 at 13-15 (Reeves describing intake upon arrival); Filing 357-21 at 23-26 (Sabata describing intake upon arrival); Filing 357-22 at 14-17 (Norris describing intake upon arrival).
Dr. Shulman likewise selected from among many inmates’ dental records to claim the prevalence of problems in dental care at NDCS. Filing 315-3 at 4. He claims a “majority” were picked at random with defense counsel present. Filing 357-12 at 3. This means Dr. Shulman agrees he picked some for review that were not a part of a random selection. Furthermore, as substantiated by Defendants’ dental expert, Dr. Rich, each inmates’ dental needs are different and require separate care. Filing 315-3 at 6-7. Plaintiffs have failed to demonstrate how the alleged deficiencies in the dental care afforded to individual inmates in factually different situations support commonality.
Dr. Stewart identifies issues in the mental healthcare provided to NDCS inmates, but his proposed solutions to these issues are not consistent or cohesive and the Court finds many of his contentions rebutted by Defendants’ experts, Drs. Davis and Aufderheide. For example, Dr. Stewart takes issue with staffing shortages and blames an inmate’s suicide on the lack of mental health staff. Filing 249-38 at 15-16. However, Dr. Aufderheide refutes this contention and highlights that Dr. Stewart does not convincingly link the inmate’s death to staff shortages. Filing 316-38 at 16. Dr. Stewart also oversells the risks of telepsychiatry because of his belief that remote treatment-providers will not have reviewed an inmate’s file. Filing 249-38 at 25. However, according to Dr. Davis, telepsychiatry is a recognized and accepted method of performing
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psychiatric evaluations and treating psychiatric patients. Filing 315-1 at 6. In addition, NDCS apparently has a staff member present and the inmate’s chart during all telepsychiatry appointments, thereby alleviating any concerns about incomplete information. Filing 315-1 at 6.
Plaintiffs’ proposed disability subclass consisting of “all persons with disabilities who are now, or will in the future be, confined at any NDCS facility,” Filing 247 at 2, suffers from the same overbreadth as the general class. Its members have different disabilities requiring unique and disparate accommodations, vitiating any commonality. For example, while Norris and Gunther are fully blind, Griswold is blind only in one eye and complains of mobility accessibility. Curtright is sighted but is deaf. Their issues with NDCS’s accommodations also lack commonality. Curtright complained of having no sign language interpreter. Norris, on the other hand, did receive a talking clock and clear backpack and apparently rejected a braille block because she did not like it.
Schlanger identifies what she views as a number of deficient procedures with respect to disabled individuals, from intake, tracking of disabilities, provision of modification and aides, use of porters, communication systems, use of restrictive housing, and parole hearings. Filing 249-50. However, she fails to explain how this wide variety of policies affects all of the disability class members or how they would be capable of classwide resolution. For example, not all of the inmates in the disability subclass assert a lack of ADA accommodation in restrictive housing, nor do all of the disability subclass members assert problems with the parole process. The proposed disability subclass therefore fails to present common issues which could be resolved by a subclasswide solution.
Finally, Plaintiffs’ isolation subclass also defies commonality. By including “all NDCS prisoners who are now, or will in the future be, subject to conditions of confinement that provide limited contact with other prisoners, strictly controlled movement while out of cell, and out-of-cell
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time of less than twenty-four hours per week,” Filing 247 at 1, Plaintiffs’ proposed subclass encompasses a wide variety of inmates placed in isolation for varying reasons and who would not benefit from a single subclasswide solution. For example, while Sabata, Cardeilhac, Galle, Gunther, Norris, Reeves, and Rena all complained of restrictive housing, their complaints ranged from a general gripe about being placed in isolation to specific things that were lacking or unsatisfactory about the conditions of their confinement. Gunther complained of not having access to eye drops or adequate food. Rena complained about the lack of confidentiality from having to use porters while in restrictive housing. The reasons for the inmates being placed in restrictive housing also varied. For example, Norris was in restrictive housing at various times for either fighting or for his own protective custody.
Dr. Haney identifies problems with NDCS’s use of restrictive housing, but he concedes that aside from completely stopping isolation in all prisons, fixing the alleged negative impact of restrictive housing in inmates’ physical and mental health would require individualized solutions. Filing 316-17 at 5. Dr. Haney points to the tie between restrictive housing and mental illness. However, not every member of the proposed isolation subclass is alleged to have a serious mental illness. Dr. Haney and Vail also both point to the negative impact of double celling in restrictive housing. Filing 249-42 at 40; Filing 429-47 at 34. However, neither Dr. Haney nor Vail contend that double celling inmates is a practice or policy that is common to all inmates in restrictive housing or common to all NDCS facilities. The isolation Plaintiffs therefore also fail to present common issues or solutions that would apply across the subclass.
The case of Wal-Mart v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, is instructive in demonstrating the overbreadth of Plaintiffs’ proposed class and subclasses. In Dukes, the United States Supreme Court was “presented with one of the most expansive class actions ever.” Id. at
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342, 131 S. Ct. at 2547. The class that the plaintiffs sought to certify included “about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege[d] that the discretion exercised by their local supervisors over pay and promotion matters violate[d] Title VII by discriminating against women.” Id., 131 S. Ct. at 2547. The Supreme Court considered “whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2).” Id. It concluded that certification was not warranted, in part because Plaintiffs had not demonstrated commonality under Rule 23(a).
Plaintiffs did “not allege that Wal-Mart ha[d] any express corporate policy against the advancement of women.” Id. at 344, 131 S. Ct. at 2548. Rather, “they claim[ed] that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees.” Id. “The basic theory of their case [was] that a strong and uniform ‘corporate culture’ permit[ted] bias against women to infect, perhaps subconsciously, the discretionary decision making of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.” Id. at 345, 131 S. Ct. at 2548. The plaintiffs “therefore wish[ed] to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action.” Id. The plaintiffs “moved the District Court to certify a plaintiff class consisting of ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Id. at 346, 131 S. Ct. at 2549 (internal quotation marks omitted).
The Supreme Court stated, “The crux of this case is commonality—the rule requiring a plaintiff to show that ‘there are questions of law or fact common to the class.’” Id. at 349, 131 S. Ct. at 2550-51 (citing Fed. R. Civ. P. 23(a)(2)). The Court noted that the rule “is easy to misread,
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since ‘[a]ny competently crafted class complaint literally raises common ‘questions.’” Id. at 349, 131 S. Ct. at 2551 (alteration in original). The Supreme Court went on, however, that “[r]eciting [common] questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury[.]” Id. at 349-50, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 157, 102 S. Ct. at 2364). “Their claims must depend upon a common contention . . . .” Id. at 350, 131 S. Ct. at 2551. The Court continued:
What matters to class certification . . . is not the raising of common ‘questions’— even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers. Id. (alteration in original) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). The Court concluded that the plaintiffs had not raised such common questions capable of resolution by common answers. Id. at 359, 131 S. Ct. at 2556-57. It stated, “Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.” Id. It continued:
In sum, we agree with [the dissenting judge below] that the members of the class “held a multitude of jobs, at different levels of Wal–Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed . . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” Id. at 359-60, 131 S. Ct. at 2557 (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 652 (9th Cir. 2010) (dissenting opinion), rev’d, 564 U.S. 338, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011)). Similarly to the issues presented by the broad class in Dukes, here Plaintiffs’ proposed class consists of inmates in a variety of institutions with a wide range of health issues and medical needs. They have little in common but their status as NDCS inmates and this lawsuit. Furthermore, while
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in Dukes the plaintiffs sought to certify a class based only on a single policy relating to pay and promotion, here Plaintiffs argue there is commonality among all of NDCS’s health-, dental-, mental health-, and confinement-related policies. Plaintiffs’ proposed class is thus much broader than that rejected as overly broad in Dukes.
In contrast to the Dukes holding, Plaintiffs point to a Ninth Circuit case that certified a broad class similar to the one they propose. See Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014). In Parsons, inmates in the Arizona Department of Corrections’ (“ADC’s”) custody challenged the prison system’s “policies and practices governing medical care, dental care, and mental health care” on Eighth Amendment and other grounds. Id. at 663. The district court “certified a class consisting of ‘[a]ll prisoners who are now, or will in the future be, subjected to the medical, mental health, and dental care policies and practices of the ADC.’” Id. at 672 (alteration in original). “It also certified a subclass consisting of ‘[a]ll prisoners who are now, or will in the future be, subjected by the ADC to isolation, defined as confinement in a cell for 22 hours or more each day or confinement in [certain housing units].’” Id. (alterations in original). The district court determined that “the problems identified in the provision of health care are not merely isolated instances but, rather, examples of systemic deficiencies that expose all inmates to a substantial risk of serious harm” and thus met the standard of commonality. Id. at 673.
The Ninth Circuit agreed that commonality was met. It stated, “After all, every inmate in ADC custody is necessarily subject to the same medical, mental health, and dental care policies and practices of ADC.” Id. at 678. “The putative class and subclass members . . . all set forth numerous common contentions whose truth or falsity can be determined in one stroke: whether the specified statewide policies and practices to which they are all subjected by ADC expose them to a substantial risk of harm.” Id. It concluded such issues were capable of common resolution
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because “either each of the policies and practices is unlawful as to every inmate or it is not” and therefore they did not require an individualized inquiry. Id.
The Court finds Plaintiffs’ reliance on Parsons unconvincing. First, the Court disagrees that the relevant inquiry can be reduced to a simple “yes or no” question on legality as the Ninth Circuit suggests. See id. at 678, 684. Rather, in determining whether a policy is unconstitutional or violates the ADA or RA, it is necessary to examine its application to individual inmates and the effect it has on them. How else is the court to assess, for example, whether a risk of harm is substantial? The Court believes it would be impossible to determine the effect of a policy or practice in a vacuum devoid of actual inmates with real medical needs. Under the Ninth Circuit’s logic, almost any disparate group of plaintiffs could be certified as a class by reducing the relevant inquiry to an oversimplified question of “legality” and ignoring the pesky facts and details that might differentiate class members.
Furthermore, the Eighth Circuit has never interpreted Rule 23(a) as broadly as the Ninth Circuit did in Parsons. For example, in Postawko, 910 F.3d 1030, the Eighth Circuit certified a prison healthcare-related class, but one much narrower in scope than either that in Parsons or the class Plaintiffs propose here. In Postawko, the plaintiffs “sought class certification for their claims alleging that the Missouri Department of Corrections (‘MDOC’) and various related defendants violated the Eighth Amendment and Title II of the Americans with Disabilities Act (‘ADA’) by providing inadequate medical screening and care for chronic Hepatitis C (‘HCV’) viral infections.” Id. at 1033. “As a highly communicable disease, HCV often spreads among the incarcerated population” but is easily treated with direct-acting antiviral (“DAA”) drugs which cure over 90% of patients. Id. at 1034-35. Despite this, “[t]he MDOC . . . provided DAA medications to less than one-half of one percent of inmates in their custody with a known HCV infection.” Id. at 1035.
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Plaintiffs sought to certify the following class of inmates: All those individuals in the custody of MDOC, now or in the future, who have been, or will be, diagnosed with chronic HCV, as that term is defined medically, but who are not provided treatment with direct acting antiviral drugs. Id. at 1036. The Eighth Circuit Court of Appeals noted that at the class-certification stage, the Court’s “primary task is not to determine the final disposition of a plaintiff’s claims, but instead to examine whether those claims are appropriate for class resolution.” Id. at 1037 (citing In re Zurn Pex, 644 F.3d at 613). With regard to the commonality requirement, “[T]he Defendants argue[d] that the unique medical condition of each member of the class” would require resolution involving “a ‘highly individualized’ inquiry.” Id. at 1038. In finding the commonality requirement met, the district court noted that “[a]ll class members share the common question of whether the Defendants’ policy or custom of withholding treatment with DAA drugs from individuals who have been or will be diagnosed with chronic HCV constitutes deliberate indifference to a serious medical need” under the Eighth Amendment. Id. While “the physical symptoms eventually suffered by each class member may vary, . . . the question asked by each class member is susceptible to common resolution.” Id. at 1038-39. Thus, the court concluded that commonality was met and the class was properly certified under Rule 23(a). Id. at 1039; cf. Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 570 (8th Cir. 2015) (finding commonality was not met in Fair Debt Collection Practices Act case where the question of whether the creditor improperly sought prejudgment interest would require individualized inquiry into each underlying debtor’s transaction). While Plaintiffs argue Postawko supports their position because it allowed a class action to proceed in the prison healthcare context, the breadth of Plaintiffs’ proposed class distinguishes
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it from the Eighth Circuit’s holding therein. While in Postawko the class was based on a single disease and a single policy of non-treatment for that disease, Plaintiffs here seek to certify a class whose members suffer from a multitude of diseases, mental health conditions, and other alleged problems, and they challenge many dozens of NDCS’s policies and practices related to these various conditions. The Court fails to see how Plaintiffs’ vastly broader class presents common issues capable of common resolution like that in Postawko. Instead, Plaintiffs’ proposed class and subclasses would require numerous changes to NDCS’s policy and practice in order to rectify the broad range of issues the class members assert.
Aside from the Ninth Circuit as seen in Parsons, this more measured approach is supported by cases from other circuits as well. For example, the Fifth Circuit found a class presented common issues and was thus correctly certified in Yates v. Collier, 868 F.3d 354 (5th Cir. 2017). The plaintiffs were inmates at one facility in Texas who alleged violations of the Eighth Amendment, ADA, and RA “due to high temperatures in the prison housing areas.” Id. at 358. Plaintiffs sought to certify a class consisting of “[a]ll inmates who currently are, or in the future will be, incarcerated at the [facility], and who are subjected to [the corrections department]’s policy and practice of failing to regulate high indoor heat index temperatures in the housing areas,” as well as subclasses for those at increased risk and those with disabilities. Id. at 359. In upholding the district court’s decision to certify the general class, the Fifth Circuit noted that all inmates were exposed to the same high temperatures and “every inmate . . . is at a substantial risk of serious harm due to the heat.” Id. at 362. The district court noted that while “[n]o two individuals have the exact same risk” due to variations in age and health conditions, the extreme heat nevertheless posed the common question of “the adequacy of [the department]’s mitigation measures—as applied in practice—in reducing the heat risk for all the inmates.” Id. at 363 (alteration and emphasis in
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original). The Fifth Circuit agreed that the “[p]laintiffs have demonstrated the presence of a “question[ ] of law or fact common to the class.” Id. at 365 (second alteration in original) (quoting Fed. R. Civ. P. 23(a)(2)).
Thus, more akin to the single health issue presented in Postawko, Yates presented the single question of high temperatures placing prisoners at risk. In contrast, Plaintiffs’ proposed class does not focus on a single or even a few health conditions or policies, but instead purports to encompass a wide variety of health conditions and NDCS practices that affect inmates in disparate ways and are thus incapable of common resolution. The two broad proposed subclasses suffer the same deficiencies. To say such broad classes present common issues is to strain the meaning of Rule 23(a)(2). The Court thus finds most convincing the approaches taken by the Eighth Circuit and the other courts cited above rather than the overly broad approach in Parsons. Accordingly, Plaintiffs’ proposed class and subclasses fail to meet the requirement of commonality and will not be certified.
c. Typicality A party seeking class certification must also show “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The question is whether “other class members have claims similar to the named plaintiff.” DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995) (citing Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir. 1982)). The Eighth Circuit has recognized that the “commonality and typicality requirements of Rule 23(a) tend to merge.” Postawko, 910 F.3d at 1039 (citing WalMart, 564 U.S. at 349 n.5, 131 S. Ct. 2541). Having found that the proposed class and subclasses lack commonality, the Court likewise concludes that the named plaintiffs cannot and do not typify the class as a whole. As analyzed at length above, the proposed classes include a large group of
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inmates, some with no health issues, others with a wide variety of physical, mental, and dental issues. The Court concludes the named plaintiffs do not typify this diverse group of class members for any of the proposed classes.
d. Adequacy of Representation The adequacy requirement of Rule 23(a) requires the class representatives to fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). “Adequacy of representation focuses on two issues: (1) whether the representatives have common interests with class members; and, (2) whether the representatives will vigorously prosecute the interests of the class.” Clayborne v. Omaha Pub. Power Dist., 211 F.R.D. 573, 597 (D. Neb. 2002) (citing Paxton, 688 F.2d at 56263). “The district court must decide whether Rule 23(a)(4) is satisfied through balancing ‘the convenience of maintaining a class action and the need to guarantee adequate representation to the class members.’” Rattray v. Woodbury Cty., 614 F.3d 831, 835 (8th Cir. 2010) (quoting Wright v. Stone Container Corp., 524 F.2d 1058, 1061 (8th Cir. 1975)). “The inquiry into adequacy of representation, in particular, requires the district court’s close scrutiny, because the purpose of Rule 23(a)(4) is to ensure due process for absent class members, who generally are bound by a judgment rendered in a class action.” Id. (citing Hansberry v. Lee, 311 U.S. 32, 41, 61 S. Ct. 115, 85 L. Ed. 22 (1940)).
i. Vigorous Prosecution Seeking to represent a large group of people as a class representative in a lawsuit is a very heavy responsibility. It should never be undertaken lightly, and the court should allow such representation only upon a firm foundation that the named plaintiffs are willing and [ ] able to shoulder that burden. Clayborne, 211 F.R.D. at 597 (quoting Cervantes v. Dobson Bros. Const. Co., No. CV76-L-95, 1977 WL 89, at *3 (D. Neb. Mar. 1, 1977)).
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There are eleven named Plaintiffs in this case. Of the eleven named Plaintiffs, ten of them submitted either a declaration or a transcript of their depositions in support of class certification. During their depositions, Plaintiffs showed a basic understanding of the claims, other Plaintiffs, Defendants, procedural history, and class certification process. “[C]lass representatives in complex cases are not required to have the detailed level of firsthand knowledge of facts or law that defendants seek to impose” but they must make some showing of personal commitment to and knowledge of the litigation. In re Genesis Intermedia, Inc. Secs. Litig., 232 F.R.D. 321, 330-31 (D. Minn. 2005) (quoting In re Select Comfort Corp. Sec. Litig., 202 F.R.D. 598, 609 (D. Minn. 2001)).
The declarations submitted by Plaintiffs contain statements regarding their desire to be a Plaintiff in this suit and the relief sought. Filing 249-1 at 5 (Cardeilhac Declaration); Filing 24921 at 10 (Curtright Declaration); Filing 249-3 at 6 (Griswold Declaration); Filing 249-4 at 7 (Gunther Declaration); Filing 249-2 at 6 (Reeves Declaration); Filing 249-12 (Rena Declaration); Filing 249-15 at 6 (Sabata Declaration). Many of the plaintiffs testified that they reviewed the materials submitted in this case. Filing 357-21 at 10 (Sabata Deposition); Filing 357-24 at 46-47 (Curtright Deposition); Filing 357-23 at 39, 44-45 (Galle Deposition); Filing 361-2 at 12, 22 (Gunther Deposition); Filing 357-14 at 68-69 (Reeves Deposition); Filing 249-34 at 9 (Sweetser Declaration); Filing 249-1 at 5 (Cardeilhac Declaration); Filing 249-12 at 5 (Rena Declaration). Several of the plaintiffs have a basic understanding of their role as class representative. Filing 35724 at 50 (Curtright Deposition); Filing 357-23 at 40 (Galle Deposition); Filing 361-2 at 12-13 (Gunther Deposition); Filing 357-14 at 70-71 (Reeves Deposition); Filing 357-21 at 33 (Sabata Deposition).
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Ten of the named plaintiffs articulate the overall concerns they seek to redress in this suit. Filing 249-1 at 5 (Cardeilhac Declaration); Filing 357-24 at 54 (Curtright Deposition); Filing 35723 at 42-43 (Galle Deposition); Filing 249-3 at 6 (Griswold Declaration); Filing 361-2 at 16-21 (Gunther Deposition); Filing 357-14 at 69, 72 (Reeves Deposition); Filing 249-12 at 5 (Rena Declaration); Filing 357-21 at 35 (Sabata Deposition).
While the proposed class representatives do not display an in-depth understanding of the complexity of this case, they illustrate that they understand the broad strokes of this litigation and a commitment to it. The Court finds that the named plaintiffs are adequate representatives and exhibit a commitment to vigorous prosecution of their claims.
Plaintiffs have likewise retained competent and capable counsel to represent them in this case, which the Eighth Circuit Court of Appeals has also identified as a factor illustrating a willingness to vigorously prosecute the case on behalf of the proposed class. See Paxton, 688 F.2d at 563 (stating the proposed class representatives “have demonstrated a willingness to prosecute the interests of the class through qualified counsel”).
ii. Common Interests The “common interests” factor when considering adequacy of representation involves an inquiry into whether the interest of the proposed named plaintiff conflicts with the interests of proposed class members. See Clayborne, 211 F.R.D. at 597 (citation omitted) (“[W]here the interests of the named plaintiff conflicts with the interests of class members, that plaintiff is not an appropriate class representative.”). Courts note that conflicts of interest between proposed class representatives and a proposed putative class are rare where the proposed class representatives seek only declaratory and injunctive relief. See Hernandez v. Cty. of Monterey, 305 F.R.D. 132, 160 (N.D. Cal. 2015) (“Class
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representatives have less risk of conflict with unnamed class members when they seek only declaratory and injunctive relief.”); see also New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007) (citing Fed. R. Civ. P. 23(a)(4)) (“Conflicts of interest are rare in Rule 23(b)(2) class actions seeking only declaratory and injunctive relief.”).
Here, the class and proposed subclasses seek only declaratory and injunctive relief. The Court concludes that the goals of the NDCS class, the isolation subclass, and the ADA subclass do not illustrate conflicts of interest that would preclude certification. Further, the Court likewise believes the due process rights of the proposed class and subclass members could be preserved if the class and subclasses were certified.
Although the Court outlines significant problems with Plaintiffs’ proposed classes meeting the commonality requirement under Rule 26(a)(2) as outlined above, the Court believes the adequacy requirement under Rule 26(a)(4) would not prevent class certification.
e. Factors under Fed. R. Civ. P. 23(b) In addition to meeting all of the factors of Fed. R. Civ. P. 23(a), the proposed class must also satisfy at least one of the three requirements listed in Rule 23(b) in order to be certified as a class action.12 Plaintiffs rely upon Rule 23(b)(1) and 23(b)(2) in their effort to meet the requirements under Rule 23(b). Filing 250 at 48. Rule 23(b)(1) applies where there is a risk that separate prosecutions would harm other class members or create inconsistent adjudications. Fed. R. Civ. P. 23(b)(1). Rule 23(b)(2) applies when “the party opposing the class has acted or refused
12 The Court has concluded that the Fed. R. Civ. P. 23(a) requirements of commonality and typicality have not been met by Plaintiffs’ proposed class and subclasses. A prerequisite of meeting the requirements of Fed. R. Civ. P. 23(b) is that Rule 23(a) requirements must be “satisfied.” Id. Thus, pursuant to the text of Fed. R. Civ. P. 23(b), the requirements of Rule 23(b) likewise cannot be met. The Court will therefore not engage in a detailed analysis of all Rule 23(b) criteria for certifying a class action. It will, however, briefly address certain arguments on Rule 23(b) factors made by the parties.
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to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Id.
The Dukes Court determined that the requirement under Rule 23(b)(2) was not met. It said, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” 564 U.S. at 360, 131 S. Ct. at 2557. “Permitting the combination of individualized and class wide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b).” Id. at 2558 (citation omitted). Dukes also noted as problematic that “about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declaratory relief at all.” Id. at 2560.
The Court concludes that Plaintiffs have not satisfied the requirements of Rule 23(b). The Court believes that any potential differences in separate prosecutions resulting in different outcomes would be attributable to the wide factual variations in individual inmates’ medical situations. Further, as in Dukes, the Court is concerned that many members of the proposed class and subclasses have no claim for the proposed injunctive relief. The Court also believes many of the factors discussed in detail in addressing commonality above also illustrate why Rule 23(b)(1) and (b)(2) cannot be met.13
f. Additional Concerns In addition to finding that Plaintiffs’ proposed class and subclasses fail to meet the requirements of Federal Rule of Civil Procedure 23 as set forth above, the Court also believes that certifying the requested class would present serious concerns under the established principles of federalism.
13 In many class actions, the question of whether the requirement of predominance is met under Fed. R. Civ. P. 23(b)(3) is at issue. Here, Plaintiffs have argued that predominance arguments have no application to the present dispute given they are only seeking certification “pursuant to Rule 23(b)(1) and (b)(2).” Filing 358 at 88. Thus, the Court will not address predominance.
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In Elizabeth M. v. Montenez, 458 F.3d 779, 788 (8th Cir. 2006), the Eighth Circuit reversed a grant of class certification by the District of Nebraska in part based on concerns that the class was too broad to be manageable. The plaintiffs were former and current female patients involuntarily confined in three of Nebraska’s residential mental health facilities who complained of sexual assault and inadequate mental-health and disability treatment. Id. at 782. The district court certified the following class:
All women who were subjected to rape, sexual assault, sexual harassment, sexual exploitation, and physical assault, while in the care and custody of Nebraska Health and Human Services System (NHHSS) as residents at one or more of the NHHSS residential mental health facilities; and all women who are currently, or in the future will be, in the care and custody of the NHHSS and placed as residents at one or more of the NHHSS residential mental health facilities. Id. In addition to standing issues, the Eighth Circuit expressed its concern that the “[p]laintiffs’ class action complaint requests sweeping injunctive relief which, if granted, would require the district court to mandate and monitor detailed programs governing nearly every facet of the State’s operation of the three residential facilities.” Id. at 783. The Eighth Circuit disapproved of a federal court “certifying a single class action to litigate this broad array of claims and prayers for relief,” thereby “essentially confer[ing] upon itself jurisdiction to assert control over the operation of three distinct mental health facilities, a major component of Nebraska state government.” Id. at 784. The Court stated, “Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Id. (quoting Rizzo v. Goode, 423 U.S. 362, 378, 96 S. Ct. 598, 607, 46 L. Ed. 2d 561 (1976)). The Eighth Circuit found such a concern was especially heightened in the class-certification context because of the likelihood a grant of class certification would force a defendant to settle. Id. Accordingly, the Court concluded
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that the class had been improperly certified. Id. at 788. It stated, “[I]t is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Id. (quoting Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 2179, 135 L. Ed. 2d 606 (1996)).
The Court has similar concerns to those expressed by the Eighth Circuit in Elizabeth M. As in that case, here Plaintiffs ask the Court to certify a class so broad that it would “essentially confer[] upon itself jurisdiction to assert control over the operation” of Nebraska’s prison system. Id. at 784. The Court agrees that it is not its role, but rather that of the executive and legislative branches of the state of Nebraska, to shape the policy of the correctional institutions. By asking the Court to undertake overseeing the management of nearly all aspects of the state prison system—from healthcare to isolation to disability accommodations—Plaintiffs are asking this Court to usurp the role conferred upon the political branches.14 The Court declines to do so.
In Postawko, the Court found that “a single injunction or declaratory judgment would provide relief to each member of the class.” Postawko, 910 F.3d at 1039-40 (quoting Dukes, 564 U.S. at 360, 131 S. Ct. 2541). The proposed injunction in Postawko would require the defendant correctional institutions to “formulate and implement an HCV treatment policy,” provide the appropriate drugs to qualified class-members, and “provide members of the class an appropriate and accurate assessment of the level of fibrosis or cirrhosis they have, counseling on drug-drug interactions, and ongoing medical care for complications and symptoms of HCV.” Id. at 1036.
14 The overbreadth of the proposed class is also illustrated by the ambiguity of the relief Plaintiffs seek. When asked at the hearing how they envision the problems they identify being remedied, Plaintiffs were unable to articulate concrete, well-delineated injunctive terms that would provide relief. (Filing 439 at 58-60). The Court is therefore concerned that any injunctive relief ordered in this case would not comply with the requirement under Federal Rule of Civil Procedure 65 that such relief be sufficiently specific. See Fed. R. Civ. P. 65(d)(1) (requiring that an injunction “state its terms specifically” and “describe in reasonable detail . . . the act or acts restrained or required”).
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Here, however, Plaintiffs have failed to propose an injunction that will provide relief to the proposed class or subclass members.
Based on the foregoing, the Court denies Plaintiffs’ request to certify the proposed class and subclasses.
H. Motion for Summary Judgment Regarding Galle and Rena’s Eighth Amendment Claims
Defendants move for summary judgment as to Galle and Rena’s claims under the Eighth Amendment. Filing 292. They claim the undisputed evidence supports that the treatment Rena received for her skin condition and the treatment Galle received for his broken femur were constitutionally adequate. Filing 294 at 10-19. Plaintiffs counter that the evidence, especially the expert affidavit submitted by Dr. Stern, create material factual disputes which prevent summary judgment. Filing 324 at 5-10. Because disputed facts preclude summary judgment in Defendants’ favor, the Court denies the motion.
1. Additional Facts a. Jason Galle’s Femur
In 2008, Galle sustained a gunshot wound to his right femur, resulting in a fracture. Filing 293-2 at 28. While housed at the Douglas County Correctional Center, a non-NDCS facility, Galle underwent three surgeries for his fractured femur and received Vicodin for pain. Filing 293-2 at 12, 19, 22, 27. Following his arrival at NDCS on March 1, 2010, Galle submitted an IIR dated March 4 informing NDCS staff he was in “extreme pain 24/7” and asking for stronger medication and permission to stay in a lower-level bunk. Filing 323-6 at 5. NDCS responded that Galle’s requests would be addressed at his intake exam by a physician, which occurred on March 10, 2010. Filing 323-6 at 5; Filing 293-2 at 25. The intake screening noted Galle’s medical history related to
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his fractured femur and surgeries as well as his use of certain controlled substances. Filing 293 at 27-28. NDCS performed an x-ray of Galle’s femur the day after his intake which revealed an intramedullary rod with a fixation screw and a healing mid-shaft fracture. Filing 293-2 at 26. NDCS refused to prescribe narcotics like Vicodin for Galle’s chronic femur pain. Filing 293-2 at 22-23; Filing 293-6 at 17-19. He was prescribed Tramadol and physical therapy and assigned a lower-level bunk. Filing 334-3 at 1-5; Filing 293-2 at 24.
Over the next several months, Galle submitted numerous requests to NDCS indicating that he was in extreme pain but NDCS repeatedly responded that it would not change or re-evaluate Galle’s treatment plan. For example, on March 15, 2010, Galle told NDCS medical that he had pain and weakness in his right leg. Filing 323-6 at 6. On March 18, Galle complained his tramadol prescription was not working and he was in constant pain. Filing 323-6 at 7. NDCS responded, “You are on ibuprofen as well. Will not increase tramadol” and did not schedule him for a medical visit. Filing 323-6 at 7. On May 1, Galle asked to be seen by doctors because he felt his hip “grinding bone on bone” and his knee was “constantly throbbing.” Filing 323-6 at 8. NDCS did not schedule a medical appointment and responded only, “If the tramadol is not helping you can stop taking.” Filing 323-6 at 8.
On August 5, 2010, Galle submitted an IIR again noting his constant, unbearable pain. Filing 323-6 at 10. Dr. John Casebolt evaluated Galle on August 13, 2010. Filing 334-3 at 6. He stated that he was unsure whether Galle’s complaints were psychological or due to actual physical pain. Filing 334-3 at 6. He prescribed Galle a trial dose of Neurontin and scheduled a follow-up for one month later. Filing 224-3 at 6. On August 22, Galle informed NDCS his pain was worsening, including that he was experiencing a grinding in his hip. Filing 323-6 at 11. NDCS declined to see Galle again until his September 14 follow-up with Dr. Casebolt. Filing 323-6 at 11.
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On that day, Galle submitted an IIR informing NDCS he had not received the Neurontin prescription for the “last 3 med passes” and asking for it to be renewed. Filing 323-6 at 12. It is unclear what transpired at the follow-up hearing with Dr. Casebolt, but Galle’s Neurontin prescription was eventually renewed two days later. Filing 323-6 at 13.
On October 18, 2010, Galle asked to be seen by a doctor because his prescriptions had been discontinued. Filing 323-6 at 13. NDCS did not permit him to see a doctor and responded that it would plan to refill his prescriptions. Filing 323-6 at 13. Later that month, Galle again reported on-going pain in his leg and inability to sleep due to the pain but was told NDCS would not change his pain-management treatment plan. Filing 323-6 at 14. Galle submitted other subsequent IIRs complaining of on-going pain or decreased medication and NDCS repeatedly denied his requests to review his treatment plan. See generally Filing 323-6. NDCS’s responses included references to the fact that Galle’s “fracture is healing but not fully healed.” Filing 323-6 at 28.
On September 15, 2010, an x-ray of Galle’s femur indicated a healed mid-shaft femoral fracture with no evidence of acute fracture or dislocation. Filing 293-2 at 18. Subsequent x-rays on April 25, 2016, June 3, 2016, and March 9, 2017, also indicated that Galle’s femoral fracture was healing. Filing 293-2 at 7-10. However, the April 25, 2016 x-ray indicated the fracture line remained visible as a lucency. Filing 323-6 at 27. In July 2016, NDCS denied Galle a consultation with an orthopedic specialist and instead continued physical therapy and the pain medications he had previously been prescribed. Filing 323-6 at 29, 34. In August 2016, following additional appointments and complaints, Galle was finally referred to an orthopedic specialist. Filing 334-3 at 24. The specialist, Dr. Samani, noted an atrophic non-union in Galle’s femur and recommended surgery and a bone graft. Filing 323-6 at 80.
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By January 2, 2017, Galle had not received surgery on his femur and reported extreme pain that prevented him from walking to eat meals. Filing 323-6 at 36. NDCS took nine days to respond to his inquiry regarding surgery and stated only that “surgery has been approved but not scheduled yet.” Filing 323-6 at 36. NDCS added Naproxen to Galle’s pain management regimen. Filing 3236 at 36. Galle submitted another IIR inquiring about the status of surgery in February 2017. Filing 323-6 at 36.
In March 2017, Galle again reported extreme pain and loss of feeling in his foot as well as his toes changing color. Filing 323-6 at 38-39. NDCS responded that Galle had been unapproved for Lyrica and that he should take NSAIDs when needed and that NDCS would schedule another x-ray. Filing 334-3 at 25-26. On March 9, 2017, x-rays revealed a healing fracture, but upon reviewing them, Dr. Samani indicated a risk of an “occult fracture.” Filing 323-6 at 79. NDCS staff noted it would be necessary to schedule Galle for femoral fracture repair surgery “as soon as resources permit.” Filing 323-6 at 41. NDCS notes also stated the x-ray indicated, “The hardware is intact and shows no evidence of loosening. . . . There is a healed mid shaft femoral fracture. There is no acute fracture or dislocation. . . .” Filing 293-2 at 7-8. NDCS submitted an internal consult request form for Galle to have femur surgery on March 21, but Medical Director Deol denied the request, stating surgery was “clinically not indicated at this time.” Filing 323-6 at 42.
Galle submitted inquiries about his leg from April through July 2017. Filing 323-6 at 4351. On July 9, Galle submitted an IIR stating he felt a “pop” in his leg and he was in “unbearable” pain because it “feels like the bone has come apart.” Filing 323-6 at 50. NDCS provided him with an x-ray on July 21, 2017, which confirmed the development of a fracture at the mid-shaft intramedullary rod in Galle’s injured femur. Filing 293-2 at 4. According to Galle, after the July 2017 x-ray, NDCS medical staff were “communicating with people to try to get them to take me
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to the emergency room and get surgery performed” at Creighton but the surgery did not immediately occur. Filing 357-23 at 38. Galle underwent a fourth surgery to repair his fractured femur on August 25, 2017, at Bryan Medical Center in Lincoln, Nebraska. Filing 293-2 at 2-3.
The care Galle received after this surgery is disputed. Defendants claim he received consistent physical-therapy rehabilitation but cite only radiology reports referencing physical therapy in support of this contention. Filing 294 at 5; Filing 293-2 at 40-42. Galle claims he has not received physical therapy for the past six months despite continuing problems with his leg. Filing 323-3 at 1-2. The parties agree that post-surgical x-rays have shown Galle’s femur is healing. Filing 293-2 at 33, 36.
Dr. Stern, a board-certified internist specializing in correctional healthcare, submitted an expert declaration regarding the medical care Galle received at NDCS for his femur. Filing 323-1; Filing 323-1 at 1. He reviewed selected medical records relating to Jason Galle’s treatment at NDCS. Filing 323-1 at 2. In Dr. Stern’s expert opinion, Galle received inadequate healthcare and treatment for his injured femur. Filing 323-1 at 5. Dr. Stern stated, “In particular, NDCS staff failed to conduct appropriate intake screening of Mr. Galle; NDCS staff failed to follow and carry out orders from NDCS physicians; there were delays in access to care; there were problems with provision of medication; and there were deficiencies with medical record-keeping.” Filing 323-1 at 5.
With respect to Galle’s intake screening, Dr. Stern noted that without a physical examination, NDCS decided to taper Galle off the Vicodin he had been using to control his pain. Filing 323-1 at 6. Such a decision was based not on Galle’s individual medical needs but was rather a categorical refusal “without first making an adequate determination of the clinical appropriateness and safety of such a treatment plan.” Filing 323-1 at 6. In Dr. Stern’s view, the
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discontinuation of Galle’s pain medicine “coupled with failure to evaluate Mr. Galle after being notified of a complication, resulted in significant harm (continued, un-evaluated and un-controlled pain), as well as significant risk of harm (in the event that the new complication signaled a second serious problem, such as bone infection).” Filing 323-1 at 7.
Dr. Stern also noted problems with “[d]iscoordinated [c]are,” delayed care, and a failure to follow doctors’ orders. Filing 323-1 at 7. According to Dr. Stern, NDCS was put on notice of ongoing issues with Galle’s femur due not only to his self-reports of unmanaged pain but also when the x-ray performed on April 25, 2016, “showed, for the first time in several years, that his old femur fracture was no longer healed, but rather healing.” Filing 323-1 at 7 (emphasis in original). Furthermore, Dr. Samani recommended surgery on August 25, 2016, but Galle did not receive it until August 25, 2017, despite numerous IIRs and additional x-rays. Filing 323-1 at 810. As a result of these “inexplicable failures of medical decision-making, execution of orders, coordination, and follow-up” Galle “undoubtedly suffered unnecessary pain during this year of delay. In addition, delaying surgery in this way may put the ultimate outcome at serious risk.” Filing 323-1 at 10.
b. Zoe Rena’s Skin Condition When Zoe Rena was initially incarcerated at NDCS in July 2015, she reported a skin rash and asked to be placed on a topical antibiotic that she had used during a previous term of incarceration at NDCS. Filing 323-5 at 6. NDCS responded six days later that she should purchase acne wash from the canteen instead. Filing 323-5 at 6. During her incarceration, she has been prescribed hydrocerin cream, clindamycin 1% gel, doxycycline, clobetasol cream, Aveeno Active Naturals soap, Minocycline, hydroxyzine, adapalene gel and a birth control pill by the name of Nortrel to attempt to address her skin condition. Filing 293-4 at 8; Filing 323-5 at 2. NDCS
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contends the frequent changes in treatment were due to Rena’s chronic failure to comply with the treatment plan. Filing 294 at 17-18; Filing 293-4 at 2, 4-5, 10-11. Rena testified, however, that she tried each of the prescribed treatments: “All of the things medical has given me in the past year to try I did try for the amount of time you told me it would take to work, and when that time passed, and it didn’t work, I kited medical as you recommended that I do.” Filing 323-5 at 4. NDCS medical records also reveal that on numerous occasions, Rena was unable or was not timely able to receive refills or continuation of the medications she had been prescribed. Filing 323-5 at 12, 14. Rena has not been referred to a dermatologist. Filing 293-4 at 3. NDCS forms dated January 26, 2017, stated, “We do not have a dermatologist that will see inmates. Nor will the new director approve it.” Filing 323-5 at 3.15
Rena submitted a declaration stating that while her skin rash had improved at the time of her March 2019 deposition, it then worsened by May. Filing 323-2 at 1-2. Rena stated, “I have had periods where I have no visible rash, and then I will experience a new outbreak. The symptoms come and go without me being able to tell what the trigger is.” Filing 323-2 at 1.
Dr. Stern evaluated Rena’s medical records and provided an expert declaration determining “[t]he care provided by NDCS to Ms. Rena for her multiple skin conditions did not meet the community standard of care, and put Ms. Rena at substantial risk of harm.” Filing 323-1 at 2. In particular, Dr. Stern opined that Rena experienced substantial delays in receiving care and received inadequate care to manage her chronic skin condition. Filing 323-1 at 3. According to Dr. Stern, Rena received deficient care when she submitted an IIR on January 26, 2016, indicating she had
15 Rena has also reported prolonged periods of what appeared to be menstrual bleeding. Filing 323-7 at 1. Rena was given a prescription, but the cause of the bleeding remains unknown and Rena’s symptoms persist. Filing 323-7 at 12. However, Defendants only appear to contend that the treatment of Rena’s skin condition, not her menstrual bleeding, is appropriate for summary judgment. Thus, the Court will focus on Rena’s skin condition for purposes of the Eighth Amendment analysis, just as the parties do.
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developed a rash that was different from her previously existing condition and which was getting worse. Filing 323-1 at 3. Instead of a timely examination and assessment, NDCS took almost two weeks to evaluate Rena and finally discover she had, in fact, developed a new condition: dermatitis. Filing 323-1 at 3. Dr. Stern stated, “such a skin condition can be the first sign of a spreading infection, or could be a manifestation of a systemic infectious or immunological disease. This deficient care placed her at significant risk of harm.” Filing 323-1 at 3.
In September 2015, Rena requested a topical antibiotic for her skin condition but was told to purchase acne wash from the canteen. Filing 323-1 at 4. According to Dr. Stern, “It was clinically unreasonable to expect, if her condition was unresponsive to non-prescription medications previously, that they would now be successful, especially in the absence of any examination to suggest otherwise.” Filing 323-1 at 4. “Thus, care providers would know that this treatment had a high likelihood of failing to provide adequate care for this chronic condition.” Filing 323-1 at 4. Dr. Stern stated, “Until diagnosed and determined to be benign, medical staff [should have] treat[ed] the skin condition with the same care and urgency as any other potentially serious condition.” Filing 323-1 at 2.
2. Analysis The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend. VIII. “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (alteration in original) (quoting Helling v. McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993)). “To prevail on a claim of constitutionally inadequate medical care, the inmate must show that the prison officials’ conduct amounted to ‘deliberate indifference to [the prisoner’s] serious medical needs.’” Dulany v. Carnahan, 132 F.3d 1234, 1237–38 (8th Cir. 1997)
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(alteration in original) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976)).
An Eighth Amendment claim that prison officials were deliberately indifferent to the medical needs of inmates involves both an objective and a subjective component. Id. at 1239 (citing Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir.1997)). The plaintiffs must demonstrate (1) that they suffered objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs. Id. (citing Coleman, 114 F.3d at 784). “A serious medical need is ‘one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.’” Schaub, 638 F.3d at 914 (quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995)).
“Deliberate indifference may be demonstrated by prison guards who intentionally deny or delay access to medical care or intentionally interfere with prescribed treatment, or by prison doctors who fail to respond to prisoner’s serious medical needs.” Dulany, 132 F.3d at 1239 (citing Estelle, 429 U.S. at 104–05, 97 S. Ct. at 291–92). “Mere negligence or medical malpractice, however, are insufficient to rise to a constitutional violation.” Id. (citing Estelle, 429 U.S. at 106, 97 S. Ct. at 292). “Deliberate indifference is equivalent to criminal-law recklessness, which is ‘more blameworthy than negligence,’ yet less blameworthy than purposefully causing or knowingly bringing about a substantial risk of serious harm to the inmate.” Schaub, 638 F.3d 914– 15 (quoting Farmer, 511 U.S. at 839-40, 114 S. Ct. 1970).
a. Galle First, Defendants do not dispute that Galle’s broken femur and resultant pain constitute a “serious medical need.” See Dulany, 132 F.3d at 1239. Thus, the question for the Court is whether summary judgment is appropriate based on NDCS officials allegedly showing no deliberate
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indifference in their handling of Galle’s medical condition. See id. The Court concludes there are genuine disputes of material fact as to whether NDCS officials were deliberately indifferent to Galle’s leg which preclude summary judgment.
Defendants argue there is no dispute that NDCS’s treatment of Galle’s leg and pain was medically appropriate and did not rise to the level of criminal-law recklessness such as could be called deliberate indifference. See Schaub, 638 F.3d 914–15. However, the evidence put forth by Plaintiffs calls into question the reasonableness of Defendants’ actions. According to Galle’s medical records, he repeatedly reported unmanaged pain, including indications of an aggravation to his preexisting femur injury. Despite his numerous requests for treatment, NDCS repeatedly failed to modify his pain-management treatment. Perhaps most concerningly, despite indications that he had re-fractured his femur and a recommendation from Dr. Samani that he receive surgery, Galle was left without surgical intervention for nearly a year. This evidence is supported by the expert opinion of Dr. Stern who found “inexplicable failures of medical decision-making, execution of orders, coordination, and follow-up,” the result of which was Galle “undoubtedly suffered unnecessary pain during this year of delay. In addition, delaying surgery in this way may put the ultimate outcome at serious risk.” Filing 323-1 at 10. This evidence precludes the granting of summary judgment on the question of whether Defendants were deliberately indifferent to Galle’s serious medical needs.
b. Rena With respect to plaintiff Rena, Defendants argue summary judgment is appropriate both because her skin condition did not constitute a serious medical need and because NDCS’s treatment did not rise to the level of deliberate indifference. Because Plaintiffs have put forth
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evidence which disputes the seriousness of Rena’s condition and the recklessness of Defendants’ treatment, summary judgment is inappropriate on this claim.
First, Plaintiffs have put forth evidence to create a dispute as to whether Rena’s condition was “one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Schaub, 638 F.3d at 914 (quoting Camberos, 73 F.3d at 176). While Defendants portray Rena’s condition as a mere rash, the evidence shows her condition escalated into dermatitis and required treatment beyond just over-the-counter facewash. Furthermore, Dr. Stern opined that Rena’s condition, left untreated, was concerning enough to place her at a serious risk of harm and could represent “the first sign of a spreading infection, or could be a manifestation of a systemic infectious or immunological disease.” Filing 323-1 at 3. Thus, there is a genuine dispute of material fact as to whether Rena’s skin condition was an “objectively serious medical need[].” Dulany, 132 F.3d at 1239.
Second, Plaintiffs have also put forth evidence which disputes Defendants’ contention that NDCS’s treatment of Rena’s skin condition did not rise to the level of deliberate indifference. Prison officials repeatedly ignored Rena’s requests for changes to her treatment when her skin condition worsened, including recommending she purchase acne wash when they were already aware over-the-counter solutions were not working. According to Dr. Stern, “It was clinically unreasonable to expect, if her condition was unresponsive to non-prescription medications previously, that they would now be successful, especially in the absence of any examination to suggest otherwise.” Filing 323-1 at 4. Defendants actions in this regard were “‘more blameworthy than negligence,’ yet less blameworthy than purposefully causing or knowingly bringing about a substantial risk of serious harm to” Rena. Schaub, 638 F.3d 914–15 (quoting Farmer, 511 U.S. at
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835, 839-40, 114 S. Ct. 1970). Thus, Plaintiffs have demonstrated that genuinely disputed facts exist which preclude summary judgment on the question of whether prison officials were deliberately indifferent to Rena’s skin condition.
In this motion, the State argues because Galle and Rena’s conditions have improved, they cannot obtain prospective relief and the Court should grant summary judgment. Filing 294 at 11, 19. In response to Defendants’ Motion for Summary Judgment, Plaintiffs argue that “Rena and Galle do not seek an injunction or damages as compensation for Defendants’ past deliberate indifference to medical needs at discrete points in time; rather, they seek to change Defendants’ future behavior so as to abate the risk of harm to themselves and the putative class.” Filing 324 at 34. Plaintiffs further claim Defendants’ motion as to Rena and Galle “attempts to turn this case into a series of individual personal injury actions.” Filing 324 at 33-34. In their sixty-five-page reply brief, Defendants then seem to pivot to abandon the request that the Court rule on purported individual claims of Rena and Galle, but persist in asking this Court for a ruling as a matter of law that “NDCS[’s] medical staff have not been deliberately indifferent in their treatment of Galle’s leg or Rena’s skin rash.” Filing 335 at 49. The Court has thus construed this motion as such and concludes it will not issue the ruling Defendants seek.16
For the reasons outlined herein, Defendants’ Motion for Summary Judgment regarding Galle and Rena’s Eighth Amendment Claims, Filing 292, is denied.
I. Motion for Discovery Related to COVID-19 Plaintiffs object to Magistrate Judge Nelson’s order denying their request for discovery related to NDCS’s plan to address the novel coronavirus (COVID-19) pandemic. Filing 469.
16 The Court admits that it fails to understand the need to address this issue given the lack of individual claims by Galle and Rena in this case. However, the Court has dutifully provided a ruling on the question presented.
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Plaintiffs argue Magistrate Judge Nelson was incorrect in requiring them to comply with discovery procedures and in finding the requested discovery was not relevant to the facts of this case. For the following reasons, the Court overrules Plaintiffs’ objection.
On April 10, 2020, Plaintiffs filed an “Emergency Motion Seeking Disclosure of Defendants’ Plan for the Prevention, Management, and Treatment of COVID-19.” Filing 447. NDCS has publicly released information regarding its pandemic plan but has refused to turn over to Plaintiffs information regarding what it terms “restricted access plans” detailing how individual facilities would quarantine individuals and house or move inmates in response to the disease. Filing 457 at 7. Defendants claim the information Plaintiffs seek poses a security threat. Filing 457 at 79. Plaintiffs argue the information is relevant because their “class action already concerns issues of life and death for incarcerated individuals in NDCS facilities” and the COVID-19 crisis has placed purported class members at “a real and immediate risk of suffering or dying.” Filing 448 at 10.
Magistrate Judge Nelson denied Plaintiffs’ motion. He first noted that, despite styling it as an “emergency motion,” what Plaintiffs had actually filed was a motion to compel discovery pursuant to Federal Rule of Civil Procedure 37(a)(3). Filing 466 at 3. The Court noted that Plaintiffs had failed to comply with this district’s Civil Case Management practices and the Court’s prior Order, Filing 289, requiring a party seeking discovery to first contact the Court to set a conference. Filing 466 at 3. The Court noted that while denial on that basis alone would have been warranted, it also determined that the documents sought by Plaintiffs are not relevant. Filing 466 at 3. Magistrate Judge Nelson determined that “[t]he COVID-19 crisis is different ‘in both nature and degree’ from the claims in Plaintiffs’ Complaint.” Filing 466 at 4 (citation omitted). When Plaintiffs filed suit in 2017, neither party could have “contemplated that this action would
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encompass a claim regarding a virus that did not exist.” Filing 466 at 4. Magistrate Judge Nelson also noted that NDCS had publicly disclosed significant information about its plan for addressing the pandemic and the fact Plaintiffs were still unable to determine whether Plaintiffs were harmed by the pandemic plan “suggests that Plaintiffs are unsure if they have actually suffered an injury giving rise to a claim for relief.” Filing 466 at 5. Accordingly, he denied the motion.
Plaintiffs object to Magistrate Judge Nelson’s determination. Filing 469. First, they argue their “emergency motion” was properly styled because they sought not just discovery, but public release of documents as well. Filing 470 at 29-30. They also argue the magistrate judge was incorrect in finding their request irrelevant because it falls within the scope of their broadly worded Complaint and previous discovery requests seeking all manner of healthcare-related information. Filing 470 at 17-20. Plaintiffs also contend Magistrate Judge Nelson misapplied the law because discovery should be broadly granted and the standard for Eighth Amendment claims contemplates future harm such as the novel coronavirus. Filing 470 at 23-24. Lastly, Plaintiffs argue Magistrate Judge Nelson misapplied the case of Coleman v. Newsom, No. 01-CV-01351-JST, 2020 WL 1675775 (E.D. Cal. Apr. 4, 2020) (“Coleman II”). Filing 470 at 25-28. In Coleman II, the plaintiffs asked the court to modify a preexisting remedial order to address COVID-19 concerns, which the court declined to do. Filing 470 at 26-28. Plaintiffs argue this procedural posture makes the case different from the present case where no governing order yet exists. Filing 470 at 26-28.
Defendants respond that Magistrate Judge Nelson was correct in denying Plaintiffs’ motion based both on failure to comply with discovery procedures and because the request is not relevant to the case. Filing 475 at 2-5. Defendants argue that they have already disclosed “the vast majority of the information” Plaintiffs seek, and the remaining facility-specific information has no bearing on the issues presented in this case. Filing 475 at 2.
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The Court agrees that Magistrate Judge Nelson was not “clearly erroneous or contrary to law.” 28 U.S.C. § 636; see also Fed. R. Civ. P. 72. First, despite Plaintiffs’ seeking public disclosure of documents, their request is nevertheless one for discovery and the Court agrees their failure to follow the prescribed procedure alone justifies denial of their motion. However, the Court also agrees with the magistrate judge that Plaintiffs’ request is also irrelevant. Despite the different procedural postures, the Court also finds Coleman II persuasive. As Magistrate Judge Nelson discussed, plaintiffs in both Coleman II and the present case argued the risks posed by COVID-19 should fall into the same category of constitutional harm alleged to occur in deficient prison healthcare systems. Filing 466 at 4. In both cases, the COVID-19 crisis “is different ‘in both nature and degree’ from the claims” originally asserted. Filing 466 at 4 (citing Coleman II, 2020 WL 1675775, at *5).
As set forth above, the Court may reconsider a magistrate judge’s pretrial ruling where it has been shown to be “clearly erroneous or contrary to law.” 28 U.S.C. § 636; see also Fed. R. Civ. P. 72. Magistrate Judge Nelson’s order is neither. While the Court does not diminish the severity of the COVID-19 pandemic, nor its potentially lethal effects on members of the population, including prison inmates, the present lawsuit is the incorrect vehicle for addressing such concerns.17
J. Mootness Since the filing of the Complaint, four of the plaintiffs have been released from NDCS custody. Defendants contend that the claims of the released Plaintiffs are moot and should be
17 Indeed, the lengthy and broad arguments Plaintiffs make in contending the COVID-19 crisis—which came to fruition in the United States only a mere three months prior to the date of this opinion and over fifteen months after their motion for class certification was filed—falls within the scope of their existing claims further illustrates to the Court why it is appropriate to deny class certification on the basis of commonality, typicality, and the Federal Rule of Civil Procedure 23(b) factors.
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dismissed. Plaintiffs oppose mootness on various grounds, including that two of the released plaintiffs has been returned to custody. For the reasons stated below, the Court concludes the claims of those Plaintiffs not in custody are moot, but that those of the plaintiff released and returned to custody are not moot.
1. Additional Facts Plaintiffs Rena, Sweetser, and Norris were in physical custody at the time of the filing of the Complaint. Filing 1 at 16-20. On April 1, 2019, Sweetser was released on parole. Filing 281-1 at 2-4. On November 15, 2019, Rena was released on parole. Filing 421-1 at 2; Filing 421-3 at 12. On November 20, 2019, Norris was also released on parole. Filing 430-1 at 2-6. Defendants moved to dismiss Rena, Sweetser, and Norris’s claims, alleging they are moot because these plaintiffs have been released from NDCS facilities on parole. Filing 280, Filing 420, Filing 429. However, subsequently to these motions and briefing, Rena was returned to NDCS custody. Filing 442-1; Filing 442-2. Defendants informed the Court of her return to custody but argue Rena’s claims are nevertheless moot. Filing 443. Plaintiff R.P. was incarcerated at NCYF beginning in January 2016. Filing 1 at 17. R.P. was discharged from the facility on November 20, 2018. Filing 207-1 at 2-3. Based on his release from custody, Defendants moved to dismiss R.P.’s claims on mootness grounds. Filing 205. On February 27, 2019, the Court agreed R.P.’s claims were moot due to his release from custody and dismissed his claims without prejudice. Filing 260 at 1-2. Subsequently, on March 4, 2019, R.P. was returned to NDCS custody. Filing 271-1 at 1-2. On the basis of his return to NDCS custody, Plaintiffs moved to reconsider the Court’s order dismissing R.P.’s claims. Filing 270. 2. Applicable Law
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“The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy.” Ringo v. Lombardi, 677 F.3d 793, 796 (8th Cir. 2012) (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975)). “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979). “It is of no consequence that the controversy was live at earlier stages in this case; it must be live when [the Court] decide[s] the issues.” Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir. 2000) (quoting South Dakota v. Hazen, 914 F.2d 147, 150 (8th Cir. 1990)). “[A] federal court has neither the power to render advisory opinions nor ‘to decide questions that cannot affect the rights of litigants in the case before them.’” Ringo, 677 F.3d at 796 (alteration in original) (quoting Preiser, 422 U.S. at 401, 95 S. Ct. 2330). “The ‘heavy’ burden of proving mootness falls on the party asserting the case has become moot. Kennedy Bldg. Assocs., 375 F.3d at 745 (quoting Davis, 440 U.S. at 631, 99 S. Ct. 1379).
Under Federal Rule of Civil Procedure 60, “the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: . . . (2) newly discovered evidence.” Fed. R. Civ. P. 60(b).
3. Analysis Defendants argue that because these plaintiffs have been released from physical custody, their claims are moot. Filing 282 at 3; Filing 422 at 2-3; Filing 431 at 1-2; Filing 204. Plaintiffs counter that, despite their release, these plaintiffs remain subject to the custody and control of NDCS because they are on parole. Filing 298 at 8; Filing 427 at 7-8; Filing 434 at 8-9. They point to Nebraska case law stating that a parolee is classified as being “in custody under sentence.” Filing
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298 at 8; Filing 427 at 8; Filing 434 at 8 (citing State v. Thomas, 236 Neb. 553, 557, 462 N.W.2d 862, 866 (1990), which held that “[t]he restrictions imposed upon a prisoner who is paroled are sufficient to render that person ‘in custody under sentence’ for purposes of the [Nebraska] Postconviction Act”). They also analogize the released plaintiffs to parolees seeking habeas corpus relief after their sentence has been served. See Filing 298 at 9; Filing 427 at 9; Filing 434 at 9 (citing Caton v. Nebraska, 869 N.W.2d 911, 914-15, 291 Neb. 939, 941-42 (2015)), for the proposition that parolees can state a justiciable claim under Nebraska’s habeas corpus statute).
The Court finds Plaintiffs’ argument and analogies unpersuasive. The heart of Plaintiffs’ claims is the inadequacy of treatment and medical care of inmates occurring in NDCS facilities. See generally Filing 1. While a parolee is subject to certain restraints on their freedom imposed by the State, they are not receiving medical care through NDCS nor are they being held in isolation or being subject to parole-eligibility hearings at NDCS facilities. Thus, the issues presented by the parolee–plaintiffs’ claims “are no longer ‘live’ [and] the parties lack a legally cognizable interest in the outcome.” Kennedy Bldg. Assocs., 375 F.3d at 745.
Plaintiffs argue that the Court should not find Plaintiffs’ claims moot because, as parolees, they can be returned to custody at any time.18 Filing 298 at 8; Filing 427 at 7-8; Filing 434 at 10. While it is true that a parolee can be arrested and returned to custody, see Neb. Rev. Stat. § 831,121, that does not change the fact that there is no present, live controversy; the parolee–Plaintiffs are not currently subject to NDCS’s healthcare system or policies regardless of what may happen in the future.
18 Plaintiffs also argue that even if these individual plaintiffs’ claims are moot, they should nevertheless be permitted to continue as class representatives. Filing 298 at 20-25; Filing 427 at 17-22; Filing 434 at 21-25. Because the Court has already determined that the requested classes should not be certified, this argument necessarily fails.
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The Court therefore concludes the claims of those plaintiffs who have been released on parole are moot. The Eighth Circuit has addressed similar claims regarding prison conditions and has likewise found dismissal on mootness grounds warranted when the plaintiffs were no longer in custody. See, e.g., Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (per curiam) (holding that as to an inmate seeking injunctive relief based on a particular facility’s policies, his claim became moot upon his transfer out of that facility “[b]ecause [he] is no longer subject to the policies that he challenges, [and] there is no live case or controversy”); Hickman v. State of Mo., 144 F.3d 1141, 1142 (8th Cir. 1998) (“Because plaintiffs have been released on parole and are no longer confined at [the defendant correctional center], their claims [of ADA violations] are moot.”); Watts v. Brewer, 588 F.2d 646, 648 (8th Cir. 1978) (holding that as to an inmate’s claims regarding prison conditions, “[h]is release has mooted his claims for declaratory and injunctive relief”).
The Court also does not find that the parolee–Plaintiffs’ claims fall under the “capable-ofrepetition-yet-evading-review” exception to the mootness doctrine.19 “This exception ‘applies only in exceptional situations, where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again[.]’” Hickman, 144 F.3d at 1142–43 (alterations in original) (quoting Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 988, 140 L. Ed. 2d 43 (1998)).
19 Plaintiffs urge the Court to apply the “inherently transitory” exception to the mootness doctrine. Filing 298 at 2025. That exception is exclusive to class-action cases. See, e.g., Sosna v. Iowa, 419 U.S. 393, 402, 95 S. Ct. 553, 559, 42 L. Ed. 2d 532 (1975). (“The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.”). Because the Court has determined class certification is not warranted, it will analyze the applicability of the general capableof-repetition-yet-evading-review exception instead.
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With respect to the duration prong, “the proper inquiry is whether the [challenged] activity is by its very nature short in duration, so that it could not, or probably would not, be able to be adjudicated while fully alive.” Id. (alteration and emphasis in original) (quoting Clark v. Brewer, 776 F.2d 226, 229 (8th Cir. 1985)). Plaintiffs have not shown that the duration of the healthcare policies is “always so short as to evade review.” Spencer, 523 U.S. at 18, 118 S. Ct. at 988. While these particular Plaintiffs have been released from incarceration, numerous other plaintiffs in this case are still serving sentences and subject to the same policies and systems complained of in this case and thus these issues will not go unaddressed due solely to certain inmates being paroled. Should the paroled Plaintiffs in fact be returned to custody and then subject to the same policies and practices, they can file an appropriate motion or complaint to address the issues at that time. Accordingly, the paroled Plaintiffs’ claims are moot and no exception to the mootness doctrine applies. Defendants’ Motions to Dismiss on mootness grounds for Sweetser and Norris are granted. Filing 280, Filing 429.
As to plaintiffs R.P. and Rena, Defendants do not deny that they are now back in NDCS custody. Filing 274 at 1-2; Filing 443 at 1. With respect to R.P., Defendants argue that dismissal without prejudice is nevertheless warranted based not on mootness but on R.P.’s alleged failure to exhaust administrative remedies. Filing 274 at 2. Because the parties agree that R.P. is back in NDCS custody, the Court concludes his claims are no longer moot. See Fed. R. Civ. P. 60(b)(2) (allowing the Court to reconsider its prior order based on new evidence). Furthermore, for the reasons set forth in Section II.D above, the Court determines R.P.’s claims should not be dismissed based on an alleged failure to exhaust administrative remedies.
With respect to plaintiff Rena, Defendants argue dismissal should be granted despite her return to custody because she was not subject to conditions amounting to an Eighth Amendment
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violation and because she has not exhausted her administrative remedies. Filing 443 at 2-3. The Court has previously determined that genuine issues of material fact exist which preclude summary judgment in Defendants’ favor as to both Rena’s Eighth Amendment claim and her exhaustion of administrative remedies. Thus, because Rena has been returned to NDCS custody, her claims are no longer moot.
Accordingly, the Court grants Plaintiffs’ Motion to Reconsider its prior dismissal order, Filing 260, and R.P.’s claims will be allowed to go forward. The Court denies the Motion to Dismiss Rena. Filing 420. The Court grants the Motions to Dismiss Sweetser and Norris. Filing 280, Filing 429.
III. CONCLUSION For the foregoing reasons, IT IS ORDERED: 1. Defendants’ Objection to Affidavits Submitted in Support of Summary Judgment (Filing 176) is denied; 2. Defendants’ Objection to the Magistrate Judge’s Order Regarding Expert Witnesses (Filing 395) is denied; 3. Defendants’ Motion for Partial Summary Judgment Regarding Exhaustion of Administrative Remedies (Filing 125) is denied; 4. Defendants’ Motion for Partial Summary Judgment Regarding Life Sentences and Eighth Amendment Claims (Filing 292) is granted as to James Curtright, Richard Griswold, and Michael Gunther and is denied as to Zoe Rena and Jason Galle’s Eighth Amendment claims;
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5. Defendants’ Motion for Partial Summary Judgment Regarding Defendant Julie Micek (Filing 223) is granted and Micek is dismissed as a party to the lawsuit;
6. Plaintiffs’ Motion for Class Certification (Filing 247) is denied; 7. Plaintiffs’ Objection to Magistrate Judge’s Order regarding COVID-19 Discovery (Filing
469) is denied; 8. Plaintiffs’ Motion for Reconsideration (Filing 270) regarding the mootness order on R.P.
is granted; 9. Defendants’ Motions to Dismiss and Suggestions of Mootness regarding Brandon Sweetser
and Angelic Norris (Filing 280, Filing 429) are granted and Sweetser and Norris are dismissed as parties to the case; and 10. Defendants’ Motion to Dismiss and Suggestion of Mootness regarding Zoe Rena (Filing 420) is denied. Dated this 8th day of June, 2020.
BY THE COURT:
__________________ Brian C. Buescher United States District Judge
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 4:17-cv-03107-BCB-MDN Doc # 519 Filed: 11/30/20 Page 1 of 2 - Page ID # 22659

UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

HANNAH SABATA, et al.,

Case No. 4:17-cv-03107-BCB-MDN

Plaintiffs,

CLASS ACTION

v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al.,

JOINT STIPULATION OF DISMISSAL WITHOUT PREJUDICE

Defendants.

Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, Plaintiffs Hannah Sabata, Dylan Cardeilhac, James Curtright, Jason Galle, Richard Griswold, R.P., Isaac Reeves, and Michael Gunther (“Plaintiffs”) and Defendants Nebraska Department of Correctional Services, Scott Frakes, Harbans Deol, and Nebraska Board of Parole (“Defendants”), hereby stipulate and agree that the above existing action of each Plaintiff against Defendants is DISMISSED WITHOUT PREJUDICE. Each Party shall bear his, her, and its own costs and expenses, including attorneys’ fees.

[3654642.1]

4:17-cv-03107-BCB-MDN Doc # 519 Filed: 11/30/20 Page 2 of 2 - Page ID # 22660

DATED: November 30, 2020

ACLU NATIONAL PRISON PROJECT ACLU OF NEBRASKA DLA PIPER LLP (US) NATIONAL ASSOCIATION OF THE DEAF NEBRASKA APPLESEED ROSEN BIEN GALVAN & GRUNFELD LLP
By: s/ Robert McEwen Robert E. McEwen, #24817 NEBRASKA APPLESEED CENTER FOR LAW IN THE PUBLIC INTEREST 941 “O” St., Ste. 920 Lincoln, Nebraska 68508 Telephone: (402) 438-8853 Facsimile: (402) 438-0263 Emails: rmcewen@neappleseed.org
Attorneys for Plaintiffs
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT FRAKES, HARBANS DEOL, and NEBRASKA BOARD OF PAROLE, Defendants.
DOUGLAS J. PETERSON Attorney General of Nebraska
s/ Ryan S. Post RYAN S. POST, #24714 Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL 2115 State Capitol Lincoln, Nebraska 68509 (402) 471-2682 Ryan.Post@nebraska.gov
Attorney for Defendants

[3654642.1]

 
 4:17-cv-03107-BCB-MDN Doc # 520 Filed: 12/01/20 Page 1 of 2 - Page ID # 22661

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HANNAH SABATA, et al.,

Plaintiffs,

4:17-CV-3107

vs.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al.,

MEMORANDUM AND ORDER

Defendants.

I. INTRODUCTION This matter comes before the Court on Defendants’ Motion to Dismiss and Suggestion of Mootness as to Zoe Rena, Filing 513, and Rena’s attorneys’ Motion to Withdraw, Filing 518. For the reasons stated herein, the Court dismisses Rena as a party and denies the motion to withdraw as moot.
II. ANALYSIS Defendants move to dismiss Rena on the grounds that she has been released from custody and her claims are therefore moot. Filing 515 at 1-2. Defendants submit evidence demonstrating that Rena was released from custody on August 19, 2020. Filing 514-2 at 1. The Court has previously addressed this same legal issue with respect to other Plaintiffs who have been released from custody. In assessing those previous situations, the Court concluded that once a party is released from the physical custody of the Nebraska Department of Correctional Services (“NDCS”), his or her claims regarding the inadequacy of medical care received in an NDCS facility are moot. See Filing 476 at 119-122. The same principles apply to moot Rena’s

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claims now that she is no longer in custody.1 See UniGroup, Inc. v. Winokur, 45 F.3d 1208, 1211 (8th Cir. 1995) (citing Morris v. American Nat. Can Corp., 988 F.2d 50, 52 (8th Cir. 1993)) (“The doctrine of the law of the case prevents the relitigation of settled issues in an action, thus protecting the expectations of the parties, ensuring uniformity of decisions and promoting judicial efficiency.”). Therefore, the Court grants Defendants’ Motion to Dismiss.
III. CONCLUSION For the reasons stated above, Defendants’ Motion to Dismiss and Suggestion of Mootness as to Zoe Rena, is granted. Filing 513. Furthermore, since Rena is no longer a party to this case, her attorneys’ Motion to Withdraw, Filing 518, is moot. Accordingly, IT IS ORDERED: 1. Defendants’ Motion to Dismiss and Suggestion of Mootness as to Zoe Rena, Filing 513 is granted; 2. Zoe Rena is dismissed as a party to this case, and 3. The Motion to Withdraw, Filing 518, is denied as moot.

Dated this 1st day of December, 2020.

BY THE COURT:

___________________ Brian C. Buescher United States District Judge

1 Rena’s attorneys also agree she has been released from custody in moving to withdraw from representing her. Filing 518; Filing 518-1. However, the Court need not rely on such an admission by her attorneys because there is no argument to be made that can change Rena’s dismissal in light of the evidence presented and the established law of the case.
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 4:17-cv-03107-BCB-MDN Doc # 521 Filed: 12/01/20 Page 1 of 1 - Page ID # 22663

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HANNAH SABATA, et al.,

Plaintiffs,

4:17-CV-3107

vs.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al.,

JUDGMENT

Defendants.

This matter is before the Court on the parties’ Joint Stipulation for Dismissal (Filing 519). Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), this case is dismissed without prejudice, each party to bear its own fees and costs.
Additionally, the Motion to Compel Production of Documents, Filing 497, which was pending at the time of the filing of the stipulation is denied as moot.

Dated this 1st day of December, 2020.

BY THE COURT:

___________________ Brian C. Buescher United States District Judge

1