Klinger v. Nebraska Dept. of Correctional Services

• Decision Date: 21 June 1993
• Docket Number: No. CV88-L-399.,CV88-L-399.
• Citation: 824 F. Supp. 1374
• Parties: Cheryl KLINGER, Linda Lange, Gweniver Lay, Stacy Finn, Individually and on Behalf of Others Similarly Situated, Plaintiffs, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, Frank Gunter, former Director, Nebraska Department of Correctional Services, Harold Clarke, Director, Nebraska Department of Correctional Services, Larry Tewes, Assistant Director, Nebraska Department of Correctional Services and former Acting Superintendent of Nebraska Center for Women, Victor Lofgreen, former Superintendent of Nebraska Center for Women, Larry Wayne, Superintendent of Nebraska Center for Women, Judith Danielson, Psychologist, Nebraska Center for Women, Margaret Wehland, Medical Nurse, Nebraska Center for Women, Defendants.
• Court: U.S. District Court — District of Nebraska

824 F. Supp. 1374

Cheryl KLINGER, Linda Lange, Gweniver Lay, Stacy Finn, Individually and on Behalf of Others Similarly Situated, Plaintiffs, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, Frank Gunter, former Director, Nebraska Department of Correctional Services, Harold Clarke, Director, Nebraska Department of Correctional Services, Larry Tewes, Assistant Director, Nebraska Department

of Correctional Services and former Acting Superintendent of Nebraska Center for Women, Victor Lofgreen, former Superintendent of Nebraska Center for Women, Larry Wayne, Superintendent of Nebraska Center for Women, Judith Danielson, Psychologist, Nebraska Center for Women, Margaret Wehland, Medical Nurse, Nebraska Center for Women, Defendants.^*

No. CV88-L-399.

United States District Court, D. Nebraska.

June 21, 1993.

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Gail Perry, Bob Grimit, Baylor, Evnen, Curtiss, Grimit S. Witt, Lincoln, NE, for plaintiffs.

Elaine Chapman, Laurie Smith-Camp, Asst. Attys. Gen., Lincoln, NE, for defendants.

MEMORANDUM OPINION ON LIABILITY, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND RELATED ORDER

KOPF, District Judge.

After a month-long trial which produced countless exhibits, over 5,450 pages of transcript,¹ and more than 350 pages of posttrial briefs, the primary issue boils down to this: Regarding programs and services, have female prisoners been given a fair shake by the State of Nebraska when compared to male prisoners? By and large, the answer to that question is no.

Although women prisoners are generally well treated by a very competent and extremely dedicated superintendent and staff at the one Nebraska prison for women, I find and conclude that in important respects regarding programs and services, both presently and in the past, Nebraska has violated, and does now violate, the rights of women prisoners guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Accordingly, pursuant to Rule 52 of the Federal Rules of Civil Procedure, I now set forth the findings of fact and conclusions of law which have informed my decision.²

I. Introduction

A. Background

1.

If you are a woman, if you break the law in Nebraska, and if you are required to serve a prison sentence, you will be sent to the Nebraska Center for Women (NCW). NCW is located in York, Nebraska, a small town in east central Nebraska located about 100 miles from Omaha, Nebraska, and about 50 miles from Lincoln, Nebraska. NCW is the only prison for women in Nebraska. Thus, no matter what your crime, and regardless of whether you are classified as a minimum, medium or maximum custody inmate, you will do your time at NCW.

Although this case is not about ambience, in many respects NCW looks like a college campus. The chief administrator at NCW is called a "superintendent." There are no gun towers. However, the "campus" is surrounded by a tall, barbed-wire fence. During the times pertinent to this lawsuit, the population at NCW ranged from about 90 inmates to about 130 inmates and included inmates with minimum, medium, and maximum custody designations.

If you are a man and you break the law in Nebraska you could be sent to any one of a number of penal institutions to serve your sentence. Where you go generally depends on your custody classification.

You could be sent to the Hastings Correctional Center (HCC) in Hastings, Nebraska. You could be sent to the Omaha Correctional Center (OCC) in Omaha, Nebraska. You could be sent to the Lincoln Correctional Center (LCC) in Lincoln, Nebraska.

If you are a man, you could also be sent to the Nebraska State Penitentiary (NSP) which is located in Lincoln, Nebraska, near LCC. NSP normally houses medium and maximum custody inmates, but does not normally house minimum custody inmates.

NSP looks like a traditional prison. Thick block walls or very tall fences with barbed wire surround the prison. A number of gun towers overlook NSP. During the times pertinent to this lawsuit, the NSP inmate population ranged from about 650 inmates to something less than 800 inmates. The chief administrator at NSP is called a "warden."

All prisons in Nebraska are run by a state agency known as the Department of Correctional Services (DCS). DCS is located in Lincoln, Nebraska. The chief administrator of DCS is called a "director." The director of DCS has the power to set policy. The director assigns and reassigns superintendents and wardens.

2.

By January, 1988, some of the women inmates at NCW were upset. They perceived an inequality in the treatment they received compared to the treatment male inmates received. Specifically, the women were concerned about programs — such as education — and services — such as the law library. The NCW inmates corresponded with an inmate who served as a legal aide at NSP, and that correspondence evidently did not alleviate the concerns of the NCW inmates. Believing they were being treated unfairly, the women prepared a written grievance and circulated it among the other inmates at NCW. The superintendent of NCW became aware of the grievance while it was being circulated.

In late January, 1988, the superintendent had a meeting with certain DCS staff members and the heads — wardens and superintendents—of all the adult prisons in Nebraska. This was a regularly scheduled meeting. At the meeting, the NCW superintendent told those in attendance, among other things, that the inmates at NCW had corresponded with the legal aide at NSP, that the women were concerned about the perceived inequality of certain programs provided for the women when compared to what the men received, and that the superintendent expected a grievance to be filed. He also warned of the possibility of federal litigation.

The director of DCS was not present at the meeting in late January, 1988. But, as was the normal practice, the director received what were in essence minutes of the meeting. The announcement of the NCW superintendent about the inmate grievance was described in the minutes.

In early March, 1988, more than half the inmates at NCW signed a grievance and delivered it to the superintendent at NCW. The grievance was long and detailed, but essentially complained that the women were not receiving parity of treatment in programs and services as compared to male inmates.

The NCW superintendent acknowledged receipt of the grievance, but refused to deal with it because, according to the superintendent, it required certain comparisons which the NCW staff could not make. The superintendent suggested to the NCW inmates that they submit the grievance to the director of DCS.

The NCW inmates submitted the grievance to the director of DCS in early March, 1988. Legal counsel for DCS looked into the grievance and prepared a draft letter in response to the grievance for signature by the director. In the latter part of March, 1988, the director of DCS had a meeting with the heads of all the adult prisons and certain DCS staff members. The grievance was discussed. It was agreed that the letter drafted by counsel should be sent in response to the grievance. Soon thereafter, in March, 1988, the letter was sent to the inmates at NCW.

The response of the director of DCS was long and detailed, like the grievance of the NCW inmates. In most important respects, the letter response denied any inequality. In three important respects — lack of equal pay, lack of visitation for orientation inmates, and lack of inmate training regarding legal research — the director promised some relief. Relief was granted in other minor respects, such as equalizing when the lights had to be turned off. The director also informed the inmates that a "task force" had been established to assure consistency.

By mid-July, 1988, the promised equal pay had not come about. By mid-July, 1988, no NCW inmate had completed training in legal research. There is a dispute as to whether the orientation visitation policy had changed by mid-July, 1988. The NCW inmates had heard nothing from the "task force."

B. Procedural History

1.

The initial complaint in this case was filed pro se by certain NCW inmates on July 20, 1988.³ (Filing 2.) The case was assigned to the Honorable Warren K. Urbom, who was then a United States District Judge in active service.

In October, 1988, counsel was appointed to represent the pro se plaintiffs. (Filing 5.)⁴ In January, 1989, counsel filed an amended complaint, (Filing 12), and a motion for classaction certification. (Filing 13.)

Judge Urbom granted the class-action motion, and certified the class this way: "The class shall consist of all female prisoners at NCW as of the filing of this action and all women who will be confined at NCW up until the conclusion of this lawsuit." (Filing 19, ¶ 2 of the order.) The plaintiffs then moved to clarify the class certification because one of the plaintiffs had been released from NCW a few days prior to suit being filed. (Filing 21.)

The class was redefined on April 19, 1989, to "include all female prisoners confined at NCW in York, Nebraska (NCW) as of January 1, 1988, and all female prisoners who will be confined at NCW until the conclusion of this lawsuit." (Filing 26, ¶ 2, at 2.) The phrasing of the last order was that of United States Magistrate Judge Piester, based upon his understanding of what the parties had agreed to. (Id.) For practical purposes, the court certified the class as all women who were NCW inmates at any time on or after January 1, 1988, through the conclusion of this case.⁵

A second amended complaint (Filing 31) was filed June 15, 1989, and a third amended complaint (Filing 333) was filed September 6, 1990. The normal pleading practice followed. A very extensive pretrial conference order (Filing 409) was entered October 23, 1990.

In the pretrial conference order the parties agreed that the following may be accepted as established facts for...