Case: El-Tabech v. Houston

4:04-cv-03231 | U.S. District Court for the District of Nebraska

Filed Date: June 28, 2004

Closed Date: 2012

Clearinghouse coding complete

Case Summary

On June 28, 2004, a prisoner at the Nebraska State Penitentiary (NSP) and transferred to the Tecumseh State Correctional Institution (TSCI) filed this lawsuit after being severely injured by prison guards. Filing in the U.S. District Court for the District of Nebraska, the plaintiff sued the wardens of both maximum security prisons, the director of all Nebraska prisons, and multiple agents of the state prison system, including several medical personnel, under 42 U.S.C. §1983 and the Religious L…

On June 28, 2004, a prisoner at the Nebraska State Penitentiary (NSP) and transferred to the Tecumseh State Correctional Institution (TSCI) filed this lawsuit after being severely injured by prison guards. Filing in the U.S. District Court for the District of Nebraska, the plaintiff sued the wardens of both maximum security prisons, the director of all Nebraska prisons, and multiple agents of the state prison system, including several medical personnel, under 42 U.S.C. §1983 and the Religious Land Use and Institutionalized Persons Act. In his pro se complaint, the plaintiff described the manner in which he was treated by prison guards after he had attempted escape from prison. He claimed that this treatment violated his First, Eighth, and Fourteenth Amendment rights and sought declaratory relief, injunctive relief, monetary relief, and attorneys’ fees and costs. The case was assigned to Judge Joseph F. Bataillon. The case appears both as El-Tabech v. Clarke and El-Tabech v. Houston.

The plaintiff had been apprehended after he failed to escape the prison. However, his abuse began when one guard jumped and slammed his knees on his back even though he was motionless, faced down on the ground, and complying with all orders. Several months later, the plaintiff was permitted to see a doctor only to discover his injuries required surgery to repair a “full thickness rotator cuff tear” inflicted upon him by the guard. The plaintiff also suffered a hernia and damage to one of his eyes. Over the next few months, prison administration placed the plaintiff on “intensive management” (IM) despite the fact that he was not a threat to himself or the staff. After being sentenced to 60 days in the Control Unit (CU), the plaintiff remained in solitary confinement for 449 days before he brought this lawsuit.

During his time in the cell, he suffered from total isolation and was seldom permitted basic needs, like bathing and access to sunlight. In this cell, rodents and insects were common. The defendants denied the plaintiff medical treatment and the plaintiff was exposed to human waste. Additionally, the defendants permitted the plaintiff access to law library only one hour a week. The plaintiff claimed that he was not given meaningful opportunity to contest the extended disciplinary segregation. The plaintiff also claimed that the prison personnel had religiously discriminated against him by depriving him the opportunity to practice his religion, denying him a kosher diet, and mocking and derogating the plaintiff, his practices and his family when they visited him in prison.

Early in the litigation, the plaintiff filed three separate motions requesting court appointed counsel. Judge Bataillon denied all three because indigent civil litigants do not have a constitutional or statutory right to counsel.

In October 2004, the defendants filed two motions to dismiss the complaint. They argued that the plaintiff’s Eighth Amendment claim was insufficient because he failed to allege facts that would amount to deliberate indifference. They asked the court to dismiss the claims regarding medical personnel at the prison because there was no allegation that they ever provided treatment to the plaintiff.

On November 1, 2004, the plaintiff filed the first motion for a temporary restraining order, asking the court to prohibit the defendants from denying him kosher meals. The court denied this motion on a technical error. On May 31, 2005, the plaintiff filed a second motion for a temporary restraining order as well as a motion for preliminary injunction. The plaintiff asked the court to enjoin the defendants from denying the plaintiff the necessary medical treatment for his shoulder, eye, and hernia.

On August 31, 2005, Judge Bataillon ruled on the defendants’ motions to dismiss. The court granted the motions as to the due process claim and the claims against the medical defendants and denied the motions as to the plaintiff’s Eighth Amendment claim and the other claims against the non-medical defendants. In that same order, the court denied the plaintiff’s motion for preliminary injunction and temporary restraining order because the plaintiff made insufficient allegations as to a threat of irreparable harm.

On September 8, 2005, the plaintiff filed a motion to certify a class, defining the class as “All past present and future prisoners housed in solitary confinement under IM status, and subjected to the cruel and unusual punishment through the conditions of confinement inflicted by the defendants.”

On September 14, 2005, the plaintiff filed another motion for preliminary relief. This time, the plaintiff asked the court to enjoin the defendants from obstructing and denying plaintiff the right of access to courts and the right to kosher meals. In March 2006, the plaintiff obtained representation from private counsel. On June 6, 2006, Judge Bataillon entered an order denying the plaintiff’s motion to certify class and the plaintiff’s September 14, 2005 motion for preliminary relief. The court denied the motion to certify class because pro se parties may not serve as class representatives and the scope of the class definition was too broad and vague.

On June 9, 2006, with the help of new counsel, the plaintiff filed an amended complaint. This amended complaint contained few substantive changes. Rather, the plaintiff’s original pro se complaint was reformatted and distilled to reflect a typical civil complaint.

As of March, 2007, the plaintiff had been in solitary confinement for nearly six years. For this reason, the plaintiff moved for summary judgment of his due process claim. He argued that his liberty interest was significant and the risk of erroneous deprivation was high enough to warrant summary judgment while the cost of the requested procedures was minimal. On March 30, 2007, the plaintiff filed another motion for summary judgment, this time seeking adjudication of his RLUIPA and free exercise of religion claim. In support of this motion, the plaintiff argued that the defendants had placed a substantial burden on the exercise of the plaintiff’s sincerely held religious beliefs.

On May 18, 2007, Judge Bataillon denied both of the plaintiff’s summary judgment motions. The court found that there was no evidence that the plaintiff did not receive notice of his IM status hearings and that he had the opportunity to fully present evidence of his due process claim. As such, Judge Bataillon found summary judgment in favor of the defendants on the plaintiff's due process claim.

Regarding the RLUIPA and freedom of religion claims, the court found that there were genuine issues of material fact concerning the allegations of cost and security in affording the plaintiff a kosher diet. The parties disagreed over the cost and feasibility of options to accommodate the plaintiff’s kosher requirements. Consequently, the court allowed the claim to proceed to trial. 2007 WL 2066510.

Following the trial, Judge Bataillon entered judgment for the plaintiff. According to the court, while deference was due to prison officials’ expertise under both RLUIPA and the First Amendment, the evidence demonstrated that the defendants did not select the least restrictive means to achieve their goal. Therefore, the court found that the defendants violated the plaintiff’s right to freedom of religion when they denied him reasonable access to a kosher diet.

As part of the judgment, Judge Bataillon ordered the parties to negotiate the feasibility of providing the plaintiff and other prisoners similarly situated with various kosher foods. On September 21, 2007, the parties submitted a joint stipulation detailing the results of their negotiation.

The parties agreed that the the defendants would develop and implement procedures and protocols to provide nutritionally sufficient kosher meals. The agreement required monitoring and reporting to ensure the defendants' compliance with the agreement. The defendants were also required to post a prayer schedule and “adjust activities or reduce disturbances as appropriate.” On October 5, 2007, the court ordered the implementation of the settlement.

On December 5, 2007, the plaintiff filed a motion for attorney’s fees and costs. Judge Bataillon granted this motion, awarding $204,856.28. 2008 WL 1995304.

After several months following implementation of the agreement, the plaintiff discovered feces wrapped in plastic in his meal prepared and delivered by TSCI staff. On August 26, 2008, the plaintiff filed a motion for contempt. Agreeing with the plaintiff, Judge Bataillon granted the plaintiff’s motion for contempt, finding that the defendants had not shown that they had made all reasonable good-faith efforts to comply with court’s order.

A few months later, the plaintiff also filed a motion for relief, as the defendants had not yet paid the $204,856.28 under the court’s order. On February 4, 2009, Judge Bataillon granted this motion for relief, ordering the defendants to pay the original sum plus an additional $7,857.72 in interest. The court also found that the interest rate should be increased to 14% to ensure compliance. The defendants appealed this decision to the United States Court of Appeals for the Eighth Circuit.

On March 18, 2009, the plaintiff filed a supplemental motion for attorneys’ fees under the RLUIPA and the Prison Litigation Reform Act. In another victory for the plaintiff, the court granted this motion and awarded the plaintiff an additional $73,360.20 in attorney's fees and $271.20 in recoverable costs. 2009 WL 1663440. The defendants also appealed this decision.

On August 18, 2009, the defendants filed a motion to stay proceedings pending the two appeals to the Eighth Circuit. Judge Bataillon denied this motion because the defendants delayed paying the court’s earlier judgment for attorney fees for more than a year and the plaintiff’s ability to recover would have been hampered by a stay. 2009 WL 3352829.

On August 13, 2010, the Eighth Circuit entered an opinion remanding the case to the district court for further proceedings consistent with their opinion. The Eighth Circuit found that the plaintiff's attorney had spent an unreasonable and unnecessary amount of time on the successful portion of the motion and asked the district court to review this portion of the award on remand. The court also addressed the defendants’ argument that the district court abused its discretion by increasing the post-judgment interest rate on the May 2008 fee award. The Eighth Circuit saw 14% to be a punitive increase in interest rate without clear and convincing evidence of a failure to comply with the underlying order. The court remanded the case for determination of an appropriate compensatory post-judgment interest rate that was in line with federal statutes. 616 F.3d 834.

On January 7, 2011, in light of the Eighth Circuit’s opinion, the plaintiff filed an amended motion for attorneys’ fees, reducing the fees sought by 43%. Judge Bataillon granted this motion, awarding $74,145.07 in attorneys’ fees and costs.

On June 20, 2011, the plaintiff filed a satisfaction of judgment, informing the court that the defendants paid the balance. The case is now closed.

Summary Authors

Jake Parker (6/4/2018)

People

For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/5639222/parties/el-tabech-v-houston/


Judge(s)

Bataillon, Joseph F. (Nebraska)

Gossett, F. A. III (Nebraska)

Loken, James B. (Minnesota)

Piester, David L. (Nebraska)

Thalken, Thomas D. (Nebraska)

Attorneys(s) for Plaintiff

Firestone, Justin (Nebraska)

Jensen, Marnie A. (Nebraska)

Lane, Ted J. (Nebraska)

Summerlin, V. Gene (Nebraska)

Attorneys(s) for Defendant

Bruning, Jon (Nebraska)

Judge(s)

Bataillon, Joseph F. (Nebraska)

Gossett, F. A. III (Nebraska)

Loken, James B. (Minnesota)

Piester, David L. (Nebraska)

Thalken, Thomas D. (Nebraska)

Attorneys(s) for Plaintiff

Firestone, Justin (Nebraska)

Jensen, Marnie A. (Nebraska)

Lane, Ted J. (Nebraska)

Summerlin, V. Gene (Nebraska)

Attorneys(s) for Defendant

Bruning, Jon (Nebraska)

Gilbride, Ryan C (Nebraska)

Handley, David (Nebraska)

McBride, Eileen L. (Nebraska)

O'Gorman, Travis P (Nebraska)

Strotman, Andrew D. (Nebraska)

Sullivan, Timothy P (Nebraska)

Taylor-Riley, Kimberley R. (Nebraska)

Willard, Linda (Nebraska)

Works, Matthew A. (Nebraska)

Documents in the Clearinghouse

Document

4:04-cv-03231

Docket [PACER]

Dec. 18, 2012

Dec. 18, 2012

Docket
1

4:04-cv-03231

Complaint

El-Tabech v. Clarke

June 28, 2004

June 28, 2004

Complaint
39

4:04-cv-03231

Motion for a Default Judgment

El-Tabech v. Clarke

Sept. 17, 2004

Sept. 17, 2004

Pleading / Motion / Brief
41

4:04-cv-03231

Motion to Dismiss Complaint

El-Tabech v. Clarke

Oct. 1, 2004

Oct. 1, 2004

Pleading / Motion / Brief
50

4:04-cv-03231

Motion for a Temporary Restraining Order

El-Tabech v. Clarke

Nov. 1, 2004

Nov. 1, 2004

Pleading / Motion / Brief
51

4:04-cv-03231

Memorandum and Order

El-Tabech v. Clarke

Nov. 4, 2004

Nov. 4, 2004

Order/Opinion
59

4:04-cv-03231

Motion for Preliminary Injunction and Motion for Temporary Restraining Order

El-Tabech v. Clarke

May 31, 2005

May 31, 2005

Pleading / Motion / Brief
61

4:04-cv-03231

Memorandum and Order

El-Tabech v. Clarke

June 2, 2005

June 2, 2005

Order/Opinion
72

4:04-cv-03231

Memorandum and Order

El-Tabech v. Clarke

Aug. 31, 2005

Aug. 31, 2005

Order/Opinion
75

4:04-cv-03231

Motion for Class Certification

El-Tabech v. Clarke

Sept. 8, 2005

Sept. 8, 2005

Pleading / Motion / Brief

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/5639222/el-tabech-v-houston/

Last updated Aug. 6, 2022, 3:01 a.m.

ECF Number Description Date Link Date / Link
61

MEMORANDUM AND ORDER - That the Plaintiff's Motion to Substitute Party 60 is granted. Mr. Robert Houston added. By 6/30/05, the defendants shall respond to the plaintiff's Motion for Preliminary Injunction, and Motion for TRO 59 . By 7/15/05, unless a timely motion for extension of time is granted, the plaintiff may reply to the defendants' response. Signed by Judge Joseph F. Bataillon on 6/2/2005. (KBJ) Modified on 6/3/2005 to edit the text to reflect that Mr. Harold Clarke is a party. There was not a substitution of Mr. Clarke for Mr. Houston; but an addition of Mr. Robert Houston (KBJ).

June 2, 2005

June 2, 2005

RECAP
63

ORDER regarding Notice of Appearance 62 . The withdrawal of the appearance byDefendant's attorney Eileen L. McBride is approved and the entry of appearance by Timothy P. Sullivan on behalf of Defendants is recognized and approved. Attorney Timothy P. Sullivan added for Harold Clarke; Mike Kenney; Francis Britten; Randy Cole; Douglas Sell and Mary Carmichael. Attorney Eileen L. McBride terminated. Signed by Magistrate Judge F. A. Gossett on 6/8/2005. (JAR)

June 8, 2005

June 8, 2005

RECAP
72

MEMORANDUM AND ORDER - The Motion to Dismiss 41 filed by defendants-ElizabethConley, M.D., Janssen Williams, M.D. and Dave Thomas (collectively "medicaldefendants"), is granted, and those defendants are dismissed from this litigation; the plaintiff's claims arising under the federal civil rights laws against defendants-Conley, Williams and Thomas are dismissed with prejudice; any claims arising under state law against those defendants are dismissed without prejudice. The Motion to Dismiss 45 filed by defendants-Francis Britten,Mary Carmichael, Harold W. Clarke, Randy Cole, Michael Kenney and Douglas Sell(collectively "DCS defendants"), is granted in part and denied in part as set forth in this Memorandum and Or der. The plaintiff's Motion for Default Judgment against Defendant Paul Church 56 is denied. The plaintiff's Motion to Strike Defendants' Supplemental Brief 57 is denied, and leave to file the brief is granted nunc pro tunc. The p laintiff's Motion for a Preliminary Injunction 59 is denied. The Objection to Motion for Preliminary Injunction 65 filed bythe medical defendants is granted insofar as the objection is consistent with this Memorandum and Order. The plaintif f's Objection to Motion to Depose a Confined Person 69 is denied. The plaintiff's Objection to Order granting the Motion to Depose a Confined Person 71 is denied. Magistrate Judge Gossett is requested to enter an Order Setting a Schedule for the Progression of this case. Signed by Judge Joseph F. Bataillon on 8/31/2005. (KBJ)

Aug. 31, 2005

Aug. 31, 2005

RECAP
73

ORDER SETTING SCHEDULE FOR PROGRESSION OF CASE - The Deposition deadline is set for 3/15/06; Pretrial Conference will be handled in writing and Mr. Timothy P. Sullivan shall submit the proposed order of Final Pretrial Conference to the court by no later than 9/29/06. Trial will be set by futher order of the court. The plaintiff shall keep the court informed of the plaintiff's address at all times while this case is pending. Signed by Magistrate Judge F. A. Gossett on 9/1/2005. (KBJ)

Sept. 1, 2005

Sept. 1, 2005

RECAP
83

ORDER denying 74 Motion to Appoint Counsel. Signed by Magistrate Judge F. A. Gossett on 9/23/2005. (ADB )

Sept. 23, 2005

Sept. 23, 2005

RECAP
92

ORDER - The Motion to withdrawal as attorney 91 filed by Timothy Sullivan is granted; the entry of appearance by Kimberley Taylor-Riley, on behalf of defendants is recognized and approved. Signed by Magistrate Judge F. A. Gossett on 1/19/2006. (KBJ)

Jan. 19, 2006

Jan. 19, 2006

RECAP
95

ORDER granting 94 Defendants' attorney Kimberley Taylor-Riley's Motion to Withdraw as Attorney. The entry of appearance by David M. Handley on behalf of the defendants is recognized and approved. Signed by Magistrate Judge F. A. Gossett on 2/28/2006. (JSF)

Feb. 28, 2006

Feb. 28, 2006

RECAP
107

ORDER denying 75 Motion to Certify Class; granting in part and denying in part 76 Motion for Reconsideration, i.e., the plaintiff's due process claim is reinstated but his claims against Conley, Williams, and Thomas are not; granting 79 Mo tion to Progress; denying 80 Motion for TRO and Preliminary Injunction; granting 93 Motion for Ruling; granting 98 Motion to Extend dates and directing Magistrate Judge Gossett to issue an amended progresion order; denying Motion 99 to extend dates in the progression order; granting Motion 100 for leave to file an amended complaint, accepting for filing instanter the amended complaint attached to 100 , but directing plaintiff to file the amended complaint as a new filing, separate from 100 ; and denying 102 defendants' Objection to motion to amend complaint. Signed by Judge Joseph F. Bataillon on 6/6/2006. (MTB, )

June 6, 2006

June 6, 2006

RECAP
111

MEMORANDUM AND ORDER - The Motion for an Extension of Time 109 to respond to the Motion for a Protective Order 103 is granted insofar as the defendants shall have the requested extension of time until June 22, 2006 to respond. Instead of the req uested in camera hearing, however, I direct the parties' attorneys to find some realistic and reasonable solution to the problem of identifying the plaintiff's attorney-client privileged material for whatever level of protection such material is to be afforded in future searches of the plaintiff's cell. Signed by Magistrate Judge F. A. Gossett on 6/12/2006. (KBJ)

June 12, 2006

June 12, 2006

RECAP
113

ORDER denying 112 Motion to Extend. Signed by Magistrate Judge F. A. Gossett on 6/13/2006. (ADB)

June 13, 2006

June 13, 2006

RECAP
120

SECOND AMENDED ORDER SETTING SCHEDULE FOR PROGRESSION OF CASE; granting 119 Motion to Extend; deposition deadline December 27, 2006; pretrial conference set for May 3, 2007 at 10:00a.m.; non-jury trial set for May 21, 2007 at 8:30a.m. Ordered Magistrate by Judge F. A. Gossett.(PCV, )

Sept. 25, 2006

Sept. 25, 2006

RECAP
122

ORDER - Pursuant to the Stipulation 121 ; The files of the State of Nebraska Department of Correctional Services (DCS) concerning Mohamed A. El-Tabech, #36752 and maintained pursuant to Neb. Rev. Stat. 83-178 (1994), be made available for inspectio n by Gene Summerlin, Marnie Jensen, and Justin Firestone, Attorneys at Law, of Ogborn, Summerlin & Ogborn, P.C., under the following conditions set forth in this Order. The entry into this Stipulation by the parties in no way relieves either party from complying with the Federal Rules of Civil Procedure. Ordered by Magistrate Judge F. A. Gossett. (KBJ)

Sept. 28, 2006

Sept. 28, 2006

RECAP
128

MEMORANDUM AND ORDER - The Plaintiff's Motion for Protective Order and Return of Privileged Materials 103 is denied as moot for the reason set forth in this Order. Ordered by Magistrate Judge F. A. Gossett. (KBJ)

Nov. 29, 2006

Nov. 29, 2006

RECAP
133

ORDER granting in part and denying in part Motion to Extend Dates 130 of the Second Amended Progression Order 120 . Trial shall remain as scheduled. All other dates will be rescheduled as set forth in this Order. Ordered by Magistrate Judge F. A. Gossett. (KBJ)

Dec. 18, 2006

Dec. 18, 2006

RECAP
138

ORDER granting 137 Motion to Extend. All fact depositions shall be completed by March 16, 2007. The Final Pretrial Conference is set for Thursday, May 3, 2007 at 10:00 a.m., in2chambers, Suite 2210, Roman L. Hruska United States Courthouse, 111 South 18th Plaza,Omaha, Nebraska. A Non-Jury trial is set to commence at 8:30 a.m. on Monday, May 21, 2007, in Omaha,Nebraska, before the Honorable Joseph F. Bataillon, Chief Judge. Ordered by Magistrate Judge F. A. Gossett.(ADB)

Dec. 29, 2006

Dec. 29, 2006

RECAP
156

ORDER. On the court's own motion, the final pretrial conference is rescheduled to Wednesday, May 2, 2007 at 10:00 A.M., before Magistrate Judge David L. Piester in the chambers of the undersigned magistrate judge, Suite 2210, Roman L. Hruska U. S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska. Ordered by Judge F. A. Gossett. (ARL,)

April 13, 2007

April 13, 2007

RECAP
162

ORDER granting 161 Motion to Withdraw as Attorney; IT IS HEREBY ORDERED, that the appearance of Justin Firestone is withdrawn as counsel for the plaintiff. The court will cease further electronic notices to Mr. Firestone in this matter. Ordered by Magistrate Judge F. A. Gossett.(PCV, )

April 24, 2007

April 24, 2007

RECAP
167

ORDER granting 166 Application for Writ. IT IS HEREBY ORDERED as follows: (1) Defendants, or anyone in their control in the Nebraska Department of Correctional Services shall transport, or arrange for the transportation of, Plaintiff Mohamed A. El- Tabech to the Roman L. Hruska Federal Courthouse, Courtroom 3, on May 21, 2007 at 8:30 a.m., and each day thereafter as long as trial proceeds; (2) All costs of such transport shall be borne by Defendants. Ordered by Magistrate Judge David L. Piester. (Certified copies to USM)(JAR)

May 11, 2007

May 11, 2007

RECAP
172

MEMORANDUM AND ORDER denying 145 & 150 Motions for Summary Judgment. Summary judgment is granted in favor of the defendants on Claim IV, El-Tabechs Due Process Claim, as set forth herein. Trial will proceed on the remaining claims of the amended complaint, Claims I and II, pursuant to the terms of the pretrial order. Ordered by Judge Joseph F. Bataillon.(SMS, )

May 18, 2007

May 18, 2007

RECAP
177

GENERAL ORDER 2007-09 concerning the management of pro se cases including supervision of pro se staff attorneys. Except for motions filed under 28 U.S.C. § 2255 and except for death penalty cases, Judge Kopf is assigned the overall responsibili ty for the management of pro se cases in the District of Nebraska and all previously filed pro se cases referred to Magistrate Judge Gossett or Magistrate Judge Thalken are herewith reassigned to Magistrate Judge Piester. The clerk's office shall file this order in each pending case referred to the Pro Se Docket in CM/ECF. Ordered by Judge Joseph F. Bataillon. (JSF)

July 3, 2007

July 3, 2007

RECAP
179

MEMORANDUM AND ORDER - IT IS ORDERED that 1. Judgment will be entered for the plaintiff against the defendants on plaintiff's amended complaint (Filing No. 110) as set forth herein; 2. The parties are ordered to submit their negotiation results to this court within sixty (60) days as set forth herein; and 3. A separate judgment will be filed on this date in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (KBJ)

July 17, 2007

July 17, 2007

RECAP
182

ORDER - IT IS HEREBY ORDERED as follows: Negotiations between the Parties to determine the kosher dietary option(s) that will be instituted by Nebraska Department of Correctional Services shall conclude within 60 days of the entry of judgment. The P arties will report the result of these negotiations to the Court on or before September 14, 2007. The Plaintiff shall submit an application for attorney fees and costs, as prevailing party pursuant to 42 U.S.C. § 1988, within 14 days of the conclusion of negotiations, or by September 28, 2007, whichever date is earlier. Ordered by Judge Joseph F. Bataillon. (KBJ)

July 24, 2007

July 24, 2007

RECAP
186

ORDER - Defendants shall be granted an additional week to address issues raised by Plaintiff regarding the adequacy of Defendants' plan to provide a kosher diet to Plaintiff as set forth in this Order. In light of this one-week extension to rea ch a mutual agreement, the deadline for Mr. El-Tabech's motion for attorneys fees and costs 185 will be extended until fourteen days following the conclusion of negotiations, such conclusion being either by stipulation or by order if this Court. Ordered by Judge Joseph F. Bataillon. (KBJ)

Sept. 14, 2007

Sept. 14, 2007

RECAP
189

ORDER granting 188 Motion to Extend; the deadline for Plaintiff to file his Motion for Attorneys Fees and Costs is extended from October 5, 2007, to and including December 5, 2007; this extension will allow the parties sufficient time to attempt to reach an agreement on attorneys' fees and costs and, should negotiations fail, for the parties to secure the necessary expert opinions in support of or in opposition to the Motion for Attorney's Fees. Ordered by Judge Joseph F. Bataillon.(CJP)

Oct. 5, 2007

Oct. 5, 2007

RECAP
190

ORDER granting 187 Stipulation; defendants will implement the "Kosher Equipment and Meal Preparation Process" (the "Kosher Process") in compliance with this Court's July 17, 2007 Memorandum and Order to "provid[e] El-T abech[,] and other prisoners similarly situated" who request a religious diet, with a nutritionally-sufficient kosher diet, in accordance with Nebraska Department of Corrections Services policies and procedures and subject to the following:a. De velopment and implementation of operational memoranda, protocols, postorders or other similar documents to ensure the adequacy of the Kosher Process to provide kosher meals that are nutritionally sufficient; and the allowance of a person with experti se in the area of kosher diet preparation and service to provide an independent verification of the adequacy of the Kosher Process, once implemented by the Nebraska Department of Corrections Services Food Services Division ("DCSFS"), to meet Defendants' stated commitment to never serve Mr. El-Tabech non-kosher food; the input of this person will be considered by DCSFS to ensure the Kosher Process is adequate. Ordered by Judge Joseph F. Bataillon.(CJP)

Oct. 5, 2007

Oct. 5, 2007

RECAP
192

ORDER - The Plaintiff's Motion for Attorney's Fees and Costs and Extension of Date to File Brief and Index of Evidence in Support of Motion for Attorney's Fees and Costs 191 is granted. IT IS HEREBY ORDERED that Plaintiff shall file a brief and evidence in support of Motion for Attorney's Fees and Costs on or before December 14, 2007. Ordered by Chief Judge Joseph F. Bataillon. (KBJ)

Dec. 5, 2007

Dec. 5, 2007

RECAP
196

ORDER granting defendants' motion for extension of time, 195 . Defendants shall have until January 31, 2008, to file their brief and index in opposition to plaintiff's motion for fees and costs 191 . Ordered by Chief Judge Joseph F. Bataillon. (JAE, )

Jan. 3, 2008

Jan. 3, 2008

RECAP
198

ORDER granting 197 Defendants' Motion to Extend Time until 2/8/2008 to file response to 191 Plaintiff's Motion for Attorney Fees. Ordered by Chief Judge Joseph F. Bataillon. (SMS, )

Feb. 1, 2008

Feb. 1, 2008

RECAP
203

MEMORANDUM AND ORDER - Plaintiff's motion for attorneys' fees and costs 191 is granted. Attorney fees in the amount of $196,605.90 are assessed in favor of plaintiff and against defendants. Costs in the amount of $8,380.38 are taxed in favor of a plaintiff and against defendants. A judgment in conformity with this memorandum and order will be entered this date. Ordered by Chief Judge Joseph F. Bataillon. (KBJ)

May 5, 2008

May 5, 2008

RECAP
222

ORDER granting 219 Motion to Extend. IT IS HEREBY ORDERED as follows:1. Plaintiff shall file Reply Brief and Index of Evidence in Support of Motionfor Contempt on or before November 7, 2008. Ordered by Chief Judge Joseph F. Bataillon. (PCV, )

Oct. 31, 2008

Oct. 31, 2008

RECAP
226

ORDER 1. Plaintiffs objection to defendants brief and evidence 217 is overruled. 2. Plaintiffs motion for contempt is set for oral argument on February 19, 2009, at 3:00 p.m., Courtroom No. 3, Roman L. Hruska U.S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska. Ordered by Chief Judge Joseph F. Bataillon. (PCV, )

Feb. 12, 2009

Feb. 12, 2009

RECAP
242

ORDER - This matter is before the court on Assistant Attorney General Matthew A. Workss motion to withdraw as counsel 241 . Assistant Attorney General Ryan C. Gilbride has entered an appearance. Accordingly, Assistant Attorney General Matthew A. Works's motion to withdraw as counsel 241 is granted. Ordered by Chief Judge Joseph F. Bataillon. (KBJ)

June 2, 2009

June 2, 2009

RECAP
243

MEMORANDUM AND ORDER - Plaintiff's supplemental motion for attorney's fees 233 is granted. Plaintiff is awarded an additional $73,360.20 in attorney's fees and $271.20 in recoverable costs. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (KBJ)

June 10, 2009

June 10, 2009

RECAP
252

MEMORANDUM AND ORDER - The defendants' motion for a stay of enforcement of the judgment 249 is denied. Ordered by Chief Judge Joseph F. Bataillon. (KBJ)

Oct. 16, 2009

Oct. 16, 2009

RECAP
266

ORDER - This matter is before the court after a telephonic scheduling conference with the parties after remand from the Eighth Circuit Court of Appeals. IT IS ORDERED: 1. Plaintiff shall submit a fee application for the contested supplemental attorney fees on or before December 6, 2010. 2. Defendants shall respond thereto by December 20, 2010. 3. Plaintiff shall file a satisfaction of judgment (Filing No. 204 ) on or before November 17, 2010. Ordered by Chief Judge Joseph F. Bataillon. (JAB)

Nov. 4, 2010

Nov. 4, 2010

RECAP
279

MEMORANDUM AND ORDER - Plaintiff's motion for attorneys' fees and costs (Filing No. 270 ) is denied as moot. Plaintiff's amended motion for attorneys' fees and costs (Filing No. 278 ) is granted. Attorneys' fees in the amo unt of $73,209.67, plus interest at the legal rate under 28 U.S.C. § 1961 from and after this date, are assessed in favor of plaintiff and against defendants, payable to plaintiff's counsel. Costs in the amount of $935.40, plus i nterest at the legal rate under 28 U.S.C. § 1961 from and after this date, are taxed in favor of a plaintiff and against defendants, payable to plaintiff's counsel. A judgment in conformity with this memorandum and order will be entered this date. Ordered by Chief Judge Joseph F. Bataillon. (JAB)

May 20, 2011

May 20, 2011

RECAP
282

ORDER to Withdraw Exhibits or to Show Cause Why Exhibits Should Not be Destroyed. Ordered by Judge Joseph F. Bataillon. (MLF, )

Nov. 7, 2012

Nov. 7, 2012

RECAP

Case Details

State / Territory: Nebraska

Case Type(s):

Prison Conditions

Special Collection(s):

Solitary confinement

Multi-LexSum (in sample)

Key Dates

Filing Date: June 28, 2004

Closing Date: 2012

Case Ongoing: No

Plaintiffs

Plaintiff Description:

A prisoner at two Nebraska correctional facilities who, for 15 months after his attempted escape, was kept isolated in a restricted cell where he was denied access to medical care for his injuries, mocked for his religious practices, and denied a Kosher diet.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: Yes

Class Action Sought: Yes

Class Action Outcome: Denied

Defendants

Nebraska Department of Correctional Services, State

Defendant Type(s):

Corrections

Case Details

Causes of Action:

42 U.S.C. § 1983

Religious Freedom Rest. Act/Religious Land Use and Inst. Persons Act (RFRA/RLUIPA)

Declaratory Judgment Act, 28 U.S.C. § 2201

Constitutional Clause(s):

Cruel and Unusual Punishment

Due Process

Free Exercise Clause

Availably Documents:

Trial Court Docket

Complaint (any)

Monetary Relief

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Attorneys fees

Source of Relief:

Litigation

Form of Settlement:

Court Approved Settlement or Consent Decree

Amount Defendant Pays: 74,145.07

Order Duration: 2007 - None

Content of Injunction:

Monitoring

Recordkeeping

Reporting

Required disclosure

Preliminary relief denied

Issues

General:

Access to lawyers or judicial system

Administrative segregation

Assault/abuse by staff

Bathing and hygiene

Conditions of confinement

Disciplinary procedures

Disciplinary segregation

Excessive force

Food service / nutrition / hydration

Language access/needs

Law library access

Personal injury

Religious programs / policies

Sanitation / living conditions

Solitary confinement/Supermax (conditions or process)

Discrimination-basis:

Religion discrimination

Medical/Mental Health:

Untreated pain

Wound care

Type of Facility:

Government-run