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Prisoner Rights

ACLU files suit on constitutional violations in Nebraska prison system

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Lawsuit says state officials knowingly allowed an inmate to be assaulted on leading to multiple hospitalizations


December 16, 2014

Contact: Tyler Richard, This e-mail address is being protected from spambots. You need JavaScript enabled to view it , 402.476.8091 x104, 402.202.6211

LINCOLN - Today the ACLU of Nebraska filed a lawsuit in federal court on behalf of Mr. Joshua Franklin against the Department of Corrections Director Mr. Michael Kenney, three wardens and an assistant warden. The lawsuit alleges state officials repeatedly and knowingly allowed Mr. Franklin to be assaulted by other inmates leading to multiple emergency room trips and at least three hospitalizations. This lawsuit follows months of investigation by the ACLU into constitutional violations present in Nebraska's prison system.

Mr. Franklin, a biracial man serving time for non-violent offenses, was awaiting sentencing in the Sarpy County Jail when first assaulted by another inmate who is a member of a white supremacist group. Mr. Franklin reported the situation to Department of Corrections officials when he was moved to state custody. State officials repeatedly failed to follow their own procedures which would have prevented additional contact between Mr. Franklin and his assailant. This failure to act and to follow procedures led to three additional assaults at the Nebraska State Penitentiary. These assaults lead to a series of injuries: an orbital fracture, a detached retina, a head injury, memory loss and vision problems. Mr. Franklin still suffers from the vision and memory problems along with anxiety and nightmares. The lawsuit cites repeated written pleas for help by Mr. Franklin to state officials that were met with only empty promises to keep him safe.

“Our prison system isn’t working,” said ACLU of Nebraska Legal Director Amy Miller. “There are smarter ways to use tax-payer dollars in Nebraska that also keep our communities safe and treat people fairly. The ACLU has interviewed dozens of individuals in Nebraska correctional facilities. All of the state prisons were over capacity when officials failed to maintain order. Mr. Franklin's assaults occurred in the penitentiary, which was over 175 percent of capacity at the time of the attacks. Our investigations have shown consistently that with such overcrowding, even competent personnel and reasonable procedures will become ineffective.”

“Mr. Franklin filed multiple complaints to inform prison officials of the danger he faced,” said Eric W. Kruger, who filed the case as a trial attorney working with the ACLU of Nebraska. “Like many of the individuals we’ve interviewed, Mr. Franklin has suffered because Nebraska’s correctional facilities were unable to follow their own guidelines for maintaining order.”

In addition to this case, the ACLU of Nebraska is investigating additional individual complaints about constitutional violations in Nebraska prisons and exploring systemic litigation strategies. The ACLU of Nebraska is working in a cooperative posture with Nebraska policymakers to address these issues in the legislative arena. Additional areas of concern include the overcrowding crisis, overuse of solitary confinement, and inadequate access to mental health treatment. Reports from the Nebraska Ombudsman’s Office, the Nebraska Legislature, and the Council on State Governments have raised similar concerns about Nebraska’s prison system.


A Guide to Prison Litigation in the Eighth Circuit

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While the conditions in our prison system have captured headlines and the attention of the legislature, the law that governs prisons is relatively unknown. At the ACLU of Nebraska we have compiled a list of the most commonly raised prison issues and the specific legal standards applicable to each.

The prison system in Nebraska is currently at 157% of its design capacity. These numbers are even worse when one considers that over one hundred and fifty state inmates are now being housed by county jails and are not represented in the official overcrowding total. This overcrowded system is also home to jarring racial disparities. These numbers cannot be blamed on the prison system alone, but they do show that prison conditions have an outsized impact on minority populations.

We hope that A Guide to Prison Litigation in the Eighth Circuit will be of use to those who hear from inmates but do not have the time to learn a new area of the law from scratch. While hardly comprehensive, this document should allow an attorney to quickly evaluate the basics of a potential case. Of course, anyone who does not want to wait for a client is welcome to contact the ACLU of Nebraska, where we are always looking for cooperating attorneys.

This text is an excerpt from the November, 2014 edition of the Nebraska Lawyer Magazine.

A Guide to Prison Litigation in the Eighth Circuit by ACLUofNE


ACLU: Prison Conditions Have Crossed Into Unconstitutional Territory

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Organization tells senators the state will face a legal challenge if conditions are not improved

CONTACT: Tyler Richard, (402) 476-8091 x104, This e-mail address is being protected from spambots. You need JavaScript enabled to view it

LINCOLN – This week the ACLU of Nebraska warned senators that the organization is prepared to file a lawsuit if prison conditions are not improved. On Tuesday, the organization launched a report on problems within Nebraska's prison system that could constitute Eighth Amendment violations. ACLU attorneys received complaints and conducted interviews at multiple prisons in Nebraska and have found areas where prisons may not be meeting basic standards for health and safety. ACLU of Nebraska is prepared to file lawsuits against the state of Nebraska if the concerns outlined in the report are not properly addressed.

"The Unicameral is currently debating bills that could potentially reduce prison overcrowding and prevent Nebraska from being forced to build another prison," said ACLU of Nebraska Staff Attorney Joel Donahue who authored the report. "While this debate goes on, however, our prisons remain at over 155% capacity and the inmates are living in conditions that could be found by a court to be unconstitutional."

Several prisons across the state are on 24-hour lockdown due to overcrowding. According to the Supreme Court, the Eighth Amendment's standards of basic human decency apply to how states treat prisoners, and conditions that "alone or in combination...deprive inmates of the minimal civilized measures of life's necessities" are barred by this contemporary standard of decency.

ACLU of Nebraska's report identifies six areas where Nebraska prisons could be sued on Eighth Amendment grounds:
  • Substandard Healthcare - ACLU of Nebraska's most commonly received complaints from inmates involve a lack of physical and mental health care in Nebraska's prison system. Reports indicate it can take months for health concerns to be acknowledged by prison officials, and the care received is often described as cursory and inadequate.
  • Housing Mentally Ill Inmates in Segregation - Courts across the nation have found that housing inmates with mental illnesses in segregation violates the Eighth Amendment. ACLU of Nebraska has estimated that mentally ill inmates comprise a majority of the population in segregation. One interviewee in segregation told the ACLU that he was seen by a mental health professional only once in an eighteen-month period, with the visit only lasting a few short minutes.
  • Violent Incidents Among Inmates –The ACLU has discovered that there are at least one to two fights per week in the sleeping bays at the Nebraska State Penitentiary, with only one to two per month being broken up by guards. Several inmates have also reported being denied protective custody.
  • Lack of Exercise – Ordinarily, any inmate that is confined to their cell for more than sixteen hours per day must be given one hour each day outside of their cell for exercise. Due to the lockdown, prisoners are spending the majority of the day locked in their cells, and prisoners with jobs are being denied their daily exercise.
  • Excessive Noise – Noise levels can be considered cruel and unusual if they result in hearing loss or mental distress. ACLU of Nebraska has received enough reports to conclude that noise levels in the State Penitentiary and Tecumseh are loud enough to result in hearing loss. Additionally, inmates in segregation have described having to stuff paper in their ears to avoid the screaming of the mentally ill inmates housed in segregation.
  • Inadequate Ventilation – Lack of proper ventilation can become a constitutional issue when lack of airflow leads to foul odors, stale air, or mold growth. ACLU has received copies of grievances in which prison officials describe the airflow at NSP as being roughly 10% of what the ACA standards require. Inmates describe mold growth and a persistent smell that varies between "outhouse" and "gym locker."

"In addition to being unconstitutional, these practices are a waste of taxpayer dollars and fail to do anything for public safety," said Legal Director Amy Miller. "The public should expect a system that makes it less likely that there will be repeat offenses and that those who have been convicted of a crime will become a better person. Our legislature has before it a bill that would not only prevent a lawsuit, but be an investment in a better system, a smarter system that uses taxpayer dollars responsibly while increasing public safety."

One individual interviewed by the ACLU is Patrick Burke in the Nebraska State Correctional Facility in Lincoln. Over the past 18 months Burke's health has declined and he has been denied access to religious services such as Christmas and Ash Wednesday. Support groups for veterans with PTSD have also stopped meeting or have drastically reduced their meeting schedule. Burke has maintained a job while in the penitentiary and often has to choose between his job, exercise or a religious service.

The current legislative proposal, LB999, has advanced from the Judiciary Committee and is awaiting debate on the floor of the legislature. The bill was introduced by Senator Brad Ashford of Omaha.

For the complete report:

For more of Patrick Burke’s story:


Patrick - denied the opportunity to improve

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For almost a decade, Patrick, a Bellevue native, served his country in the Navy. Since 2005 he has been in the Nebraska State Correctional facility in Lincoln. For five years, Patrick has served as Office Clerk - one of the most competitive jobs available to those incarcerated and given to Patrick in recognition of his skills and good behavior while incarcerated. But things have changed during his time at the penitentiary—overcrowding has eliminated programs and the current lockdown has sharply limited the few remaining rehabilitative opportunities.

For example, while the job gives Patrick an opportunity to improve his chances of success upon release, it comes with a downside now there is a lockdown. The lockdown means inmates get only 1 hour a day of exercise, but that period comes during Patrick's work day so in order to keep his job, he has to give up his exercise time. Since the lockdown began 18 months ago, the lack of exercise has affected Patrick: he has gained quite a bit of weight and his triglycerides have gone up 200 points.

Patrick used to attend a veterans rap group—a mental health support group form of therapy that would meet once a month. The group particularly focused on helping veterans with PTSD and was run by an outside volunteer from the Veterans Administration. That group no longer exists at all. He still attends a veterans social group but the frequency of meetings has been reduced from six times a month to twice a month. The veterans group participates in producing the paper poppies that are sold as fundraisers for the American Legion, but this year only made 1,600 compared to the nearly 17,000 they made two years ago.
Finally, the overcrowding and lockdown have limited religious services at the prison.

As a practicing Catholic, Patrick used to attend weekly mass and Holy Day services. Holy Day services, such as Christmas and Ash Wednesday, are no longer available. If Patrick chooses to go to mass, he often finds the schedule requires him to choose between his weekend opportunity to exercise for an hour or choose to attend mass. The religious services are conducted by a volunteer outside priest, but the prison has taken away all but the single celebration of mass.


ACLU: Nebraska must allow inmates to marry

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Suit filed today on behalf of two inmates denied the right to marry

February 25, 2014

CONTACT: Tyler Richard, (402) 476-8091 x104, This e-mail address is being protected from spambots. You need JavaScript enabled to view it

LINCOLN – Today the ACLU of Nebraska filed a lawsuit in Lancaster County District Court on behalf of a Nebraska engaged couple. Paul Gillpatrick and Niccole Wetherell are both incarcerated in Nebraska correctional facilities. They are suing the Nebraska Department of Correctional Services, Director Michael Kenney, and two wardens over their enforcement of a Nebraska prison policy which places an undue burden on the Constitutional right of the couple to get married.

The Plaintiffs met through a mutual friend and have been engaged for over two years. In his letter to the ACLU, Gillpatrick says he has known Wetherell since 1998 and that "she makes me laugh, she brings smiles to my face every day and I want to marry her." They have each filled out the appropriate marriage intention forms and submitted them to the Religious Coordinator at their respective facilities. The Department of Correctional Services is unwilling to place the couple in the same room or to use modern technology to make other arrangements to allow the ceremony to go forward.

"At its most basic, this case is about challenging the government's authority to impose an unnecessary and unduly restrictive limitation upon the rights of Nebraska inmates to marry," said ACLU of Nebraska Legal Director Amy Miller.

In the suit filed today, the Plaintiffs assert that the policy completely prevents these inmates from getting married. This is in violation of a 1987 U.S. Supreme Court ruling recognizing that, subject to reasonable restrictions, inmates retain a constitutionally protected interest in the right to marry. More recent rulings have affirmed this right, including one filed by the ACLU of Missouri that was upheld by the 8th Circuit which is the Circuit that also governs Nebraska.

The 1987 ruling stated that a Missouri ban on inmate marriages was unconstitutional. In the ruling, Turner v. Safley, the court said: "Inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship... These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals."

"The State has flexibility in its options. We are not demanding that it change its security requirements. All we are asking is that the State accommodate this couple's legal desire to marry," said cooperating attorney Michael Gooch of Omaha.

In their suit, Plaintiffs seek a declaration that the Department of Corrections' actions are unconstitutional. Plaintiffs seek an injunction to block enforcement of the "in person" requirement when they re-submit their marriage intention forms.


ABOUT: The ACLU of Nebraska and its diverse membership works in courts, the legislature and our communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States and Nebraska guarantee everyone in this state.

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