As a federal lawsuit filed by the ACLU of Nebraska against the Nebraska Department of Correctional Services winds through the courts, the ACLU said Friday it won an important procedural motion in the case. 

The lawsuit, filed in 2017, named 11 Nebraska prisoners it said suffer because of conditions and crowding that endanger the health, safety and lives of prisoners on a daily basis. The lawsuit challenges what it alleges are dangerous overcrowding and unconstitutional conditions of confinement in Nebraska’s prison system.

In February it filed a motion to increase the reach of the complaint with class-action status on behalf of about 5,500 men and women in the state's prisons. It enlisted six people with expertise in treatment of prisoners with mental health, medical, dental treatment needs and disabilities to tour the prisons and provide sworn statements on conditions. 

The state then sought to strike the affidavits of four of those experts, and portions of two others. It said the affidavits contained legal conclusions, irrelevant and unsupported statements, assumptions, insufficient facts and data, and flawed methodology. And they offered opinions on the merits of the case rather than class certification. 

The state argued the experts' opinions wandered outside their qualifications and expertise.  

Thursday, federal District Court Judge Michael Nelson denied the motion to strike the experts' statements. The court said the opinions were sufficiently reliable in light of the available evidence and purpose for which they were offered. 

Also, it said, class considerations generally involve considerations that are enmeshed in factual and legal issues comprising the cause of action. 

"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 ... ," the ruling said. 

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David Fathi, director of the American Civil Liberties Union National Prison Project, said he hoped to see a ruling on the class-certification motion soon after Labor Day. 

ACLU of Nebraska Executive Director Danielle Conrad said in an update on the case that two more prisoners have committed suicide since February.

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In April, Adrian Eagle Elk, 29, was found unresponsive in his cell at Tecumseh State Correctional Institution from an apparent suicide attempt, and died about an hour later. Then in June, Brindar Jangir, 36, was found unresponsive in his cell at Lincoln Correctional Center from an apparent suicide attempt and pronounced dead about a half an hour later.

The most recent data available, which goes through 2014, Fathi said, showed that Nebraska had a suicide rate of 21 per 100,000 prisoners, compared with nationwide average rate of 16 per 100,000 for all state prisons. 

Fathi faults the Department of Corrections for failing to have an adequate suicide prevention program in place. 

Nebraska's Inspector General for Corrections recently issued a report raising alarm about a continued reliance on overtime to staff the Nebraska State Penitentiary in Lincoln, combined with a population at the penitentiary at more than 180% of design capacity.

Prisons Director Scott Frakes responded to that report, saying Nebraska is taking multiple approaches to solve the problems in the prisons, including last month's pay increases to many employees that came from union negotiations.

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Reach the writer at 402-473-7228 or jyoung@journalstar.com

On Twitter @LJSLegislature.


State government reporter

JoAnne Young covers state government, including the Legislature and state agencies, and the people they serve.

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