OMAHA — An attorney seeking approval for class-action certification in a lawsuit against the Nebraska Department of Correctional Services told a federal judge Monday that Nebraska's prison system "is in crisis."
Attorney Jennifer Wedekind of the ACLU National Prison Project told U.S. District Judge Brian C. Buescher that more than 5,000 Nebraskans are being held in dangerous and harmful conditions in the state's prisons every day.
Wedekind said the state can't simply throw up its hands and say it tried.
"That's where the court steps in," she said.
In 2017, the conditions prompted the American Civil Liberties Union to sue on behalf of 11 Nebraska prisoners it said were at risk of harm because of conditions, policies and staffing problems that endangered the health, safety and lives of prisoners on a daily basis.
But Monday, Wedekind said the case isn't about any individual inmates, but rather about systematic policies and practices that must be resolved as a class for all 5,500 men and women in the state's prisons. For instance, she said, it's about a Corrections Department policy of using licensed practical nurses to make treatment decisions they aren't qualified to make, and inaccurate keeping of medical records.
Among other things, the lawsuit targets alleged violations of the Americans with Disabilities Act and unconstitutional conditions in restrictive housing.
At Monday's hearing, Ryan Post, of the Nebraska Attorney General's Office, argued that all three branches of government are working together to improve the state's prison system.
He asked Buescher to consider what's going on "on the ground," which he said included a reduction of the number of inmates in restricted housing as of Friday; the construction of 384 more beds; and an agreement last month to increase wages for prison workers.
Post said that the ACLU wants to force its preferences on the state and its sweeping reforms would require the court to supervise nearly every dispute that comes up over a medical issue in Nebraska prisons.
Buescher asked if the changes illustrate that a problem exists.
"I'm not here to say the Department of Corrections doesn't have issues that need to be addressed," Post said.
But he argued that a class-action certification wasn't appropriate, because not all inmates face the same risk of harm. Some don't have any health issues.
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Post said if the prison didn't allow inmates who medically need them to use canes, for instance, they could qualify as a class.
"That's how specific you have to be," he said.
Post also argued there was no evidence in the record where an expert said "do this and it will solve it." They can't just say the state needs to do better, he said.
Buescher said ultimately this is going to come down to the question of whether the state is deliberately indifferent about solving the problem. If the state isn't, he asked, "why are we continuing to have all the issues coming out of the prison?"
On the other side, Buescher made it clear that he wasn't interested in being a referee over every individual medical issue for the next 30 years.
"Is that a role of a federal judge?" he asked Wedekind.
She said they weren't asking the court to run the state's prisons. An injunction would involve an agreement between the state and the ACLU regarding proposed fixes to address patterns of systemwide deficiencies.
Wedekind said the department has had years to fix the problem and hasn't.
"In fact, it's only getting worse," she said, arguing that it has reached a point where the courts must step in to make sure the state is meeting its statutory obligation to provide medical care for inmates.
Buescher asked what the state was supposed to do. The ACLU was asking for benefits he doesn't get as a judge.
"What's the line?" he asked.
Wedekind said the ACLU wasn't asking for "Cadillac health care," but for a standard of care that meets Constitutional muster to address the health needs of inmates. Are inmate health concerns being handled timely by competent staff? Is there an adequate response to emergency medical problems?
"If a patient is hemorrhaging, giving them a Band-Aid or a promise of a Band-Aid isn't enough," she said. "NDCS is hemorrhaging."
Buescher took the matter under advisement.
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