Judge allows case to go forward over cellmate's killing at Nebraska State Pen
The family of a 20-year-old man killed at the Nebraska State Penitentiary in 2020 cleared a legal hurdle this week in their lawsuit seeking to hold state prison officials accountable for placing him in a cell with a mentally ill and dangerous man.
This summer, Angelo Bol was found not responsible by reason of insanity for Kevin Carter's murder.
Last year, Paige Carter filed a civil rights lawsuit alleging Scott Frakes, then-director of the Nebraska Department of Correctional Services, Michelle Wilhelm, the warden at the State Pen, and Dr. Harbans Deol, the former medical director for the prisons, and others had violated her son's Eighth Amendment right against cruel and unusual punishment.
The Nebraska Attorney General's Office asked a federal judge to dismiss the claims against them.
Carter's attorney, Thomas Monaghan, argued Frakes and Deol were liable based on Bol's medical treatment failure, and Frakes and Wilhelm were liable based on their failure to supervise prison staff in selecting cellmates.
In an order Thursday, Senior U.S. District Judge John Gerrard denied the motion to dismiss, saying the case could go forward against them for now.
While prison officials can't be found liable for "surprise attacks" of inmates, where they had no reason to believe a particular inmate was especially violent, here, the judge said, the defendants are alleged to have known Bol was a "particularly volatile inmate."
Frakes and Deol are alleged to have known Bol was dangerous to other inmates and staff but failed to ensure he was properly medicated to reduce his risk to other people in the prison.
"These facts support an inference that Frakes and Deol did not respond reasonably to the known substantial risk of harm posed by Bol," Gerrard said.
According to the state court trial, Bol — who was serving a life sentence for fatally shooting a co-worker in the Gibbon Packing parking lot in 2014 — had been involuntarily medicated for a time in prison.
But he had been taken off his antipsychotic medication by the time Carter was placed in his cell.
About a week later, on Nov. 6, 2020, Bol killed the Council Bluffs man in their locked cell, believing he had been working with a rival Sudanese tribe and placed there to kill him.
A Lincoln Regional Center doctor called it a "classic case of insanity."
As for the failure to supervise claim in the civil case, Assistant Attorney General Joseph Messineo argued that the plaintiff had failed to allege Frakes and Wilhelm knew the constitutional risk posed by inadequate training or supervision, based on a pattern of unconstitutional acts by prison staff.
The complaint pointed to Terry Berry's killing at the hands of his cellmate, Patrick Schroeder, in 2017.
Like Bol, Schroeder was serving a life sentence for murder when he killed his cellmate, Berry, after telling staff at the Tecumseh State Correctional Institution to move him.
The state of Nebraska ultimately agreed to pay $479,000 to settle a lawsuit brought by the Scottsbluff man's family, who blamed state prison officials and employees for the decision to place Berry, a 22-year-old just days from a parole hearing on a short sentence for forgery and assault, in a cell with Schroeder.
Carter similarly was just 20 and had been serving a short sentence, nearing parole, when he was placed with Bol.
Much like in Schroeder's case, on the day of Carter's killing in 2020, prison records showed Bol had gone to a case worker asking for his cellmate, who had been placed in his cell about a week earlier, to be moved.
Carter wasn't moved, and that night Bol beat and strangled him to death.
In his order this week, Gerrard said it is alleged that Frakes and Wilhelm knew of prior instances when prison staff had improperly housed incompatible cellmates together and they knew those failures to follow prison policy resulted in the death of at least one inmate, Berry.
He said the defendants appear to agree for purposes of the motion that when prison staff fail to follow policies on bunking cellmates it poses an unconstitutional risk of harm to inmates.
"The defendants focus on what they argue are insufficient allegations regarding Frakes' and Wilhelm's states of mind. But the plaintiff has stated a claim under the Eighth Amendment: The complaint alleged that Frakes and Wilhelm received notice of a pattern of unconstitutional acts, they unreasonably failed to take sufficient remedial action, and that failure proximately led to Carter's death," Gerrard said.
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