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A federal lawsuit filed by the family of a 22-year-old Scottsbluff man strangled to death by his cellmate at the Tecumseh State Correctional Institution in 2017 can go forward against prison staff for now, a judge has ruled.

But Senior U.S. District Judge Laurie Smith Camp dismissed Scott Frakes, director of the Department of Correctional Services, and Brad Hansen, the warden, from the lawsuit over Terry Berry Jr.'s killing.

Berry died April 20, 2017, five days after being found unconscious in the cell he shared with Patrick Schroeder, who later pleaded guilty to first-degree murder and got a death sentence for it.

Schroeder confessed after strangling Berry, telling a guard that night there was "something he needed to get out of his cell."

Telena Moser, the personal representative of Berry's estate, filed two lawsuits: one in Johnson County Court against the state and one in U.S. District Court in Omaha against Frakes, Hansen and six prison employees.

Johnson County District Judge Rick Schreiner granted the state's motion to dismiss the case there. In his June 30 order, he found that the claims were barred under the State Tort Claims Act because it was based on employees' discretionary decision to house Berry and Schroeder together.

"And the state is therefore entitled to sovereign immunity," the judge wrote.

In a decision Wednesday in the federal case alleging a civil rights violation, Smith Camp rejected the argument that Frakes and Hansen should remain part of the suit under a theory they were liable for failing to properly supervise and train the employees who made the decision or created a policy that led to it.

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The judge said other than alleging they were responsible for the conditions at the prison by virtue of their positions, the lawsuit had failed to allege a policy or policies that had created unconstitutional conditions.

But Smith Camp denied a motion to dismiss Athena Brown and Todd Haussler, the unit managers who made the decision to house them together; JoAnn Helton, a caseworker who expressed concerns about the decision; or Dustin Gustafson, an acting lieutenant who Helton had gone to about it but did nothing.

"Given Schroeder's regular placement in restrictive housing and known behavioral problems, it is plausible that Brown and Haussler were deliberately indifferent to a substantial risk of harm posed by Schroeder to Berry," Smith Camp wrote.

She said she also couldn't conclude that the assault would've come as a surprise to Helton or Gustafson.

On April 10, 2017, Berry was days from a parole hearing on a short sentence for forgery when he was put in a cell with Schroeder, who had robbed and killed a 75-year-old man and dumped his body in an abandoned well. Five days later, Schroeder strangled him.

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Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.

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