Wizinsky v. State , 308 Neb. 778 ( 2021 )


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    06/25/2021 12:09 AM CDT
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    WIZINSKY v. STATE
    Cite as 
    308 Neb. 778
    John M. Wizinsky, appellant, v.
    State of Nebraska, appellee.
    ___ N.W.2d ___
    Filed April 2, 2021.     No. S-19-1159.
    1. Tort Claims Act: Appeal and Error. A district court’s findings of
    fact in a proceeding under the State Tort Claims Act, 
    Neb. Rev. Stat. § 81-8
    ,209 et seq. (Reissue 2014), will not be set aside unless such find-
    ings are clearly erroneous.
    2. Judgments: Appeal and Error. In reviewing a judgment awarded
    in a bench trial of a law action, an appellate court does not reweigh
    evidence, but considers the evidence in the light most favorable to the
    successful party and resolves evidentiary conflicts in favor of the suc-
    cessful party, who is entitled to every reasonable inference deducible
    from the evidence.
    3. Jurisdiction. Whether a court has subject matter jurisdiction is a
    ­threshold issue.
    4. Tort Claims Act: Immunity: Waiver. The State Tort Claims Act oper-
    ates as a limited waiver of the sovereign immunity of the State, but is
    subject to statutory exceptions.
    5. Tort Claims Act. The purpose of the discretionary function exception
    of the State Tort Claims Act is to prevent judicial “second-guessing” of
    legislative and administrative decisions grounded in social, economic,
    and political policy through the medium of action in tort.
    6. ____. In determining whether the discretionary function exception
    applies, the focus is on the nature of the conduct, rather than the status
    of the actor. For purposes of the State Tort Claims Act, a discretionary
    function or duty encompasses policy judgment.
    7. Tort Claims Act: Political Subdivisions. A two-part analysis deter-
    mines whether the discretionary function exception of the State Tort
    Claims Act applies. First, the court must consider whether the action
    is a matter of choice for the acting political subdivision or employee.
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    Second, if the court concludes that the challenged conduct involves
    an element of judgment, it must then determine whether that judgment
    is of the kind that the discretionary function exception was designed
    to shield.
    Appeal from the District Court for Lancaster County: Kevin
    R. McManaman, Judge. Affirmed.
    Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
    for appellant.
    Douglas J. Peterson, Attorney General, and Stephanie
    Caldwell for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Per Curiam.
    NATURE OF CASE
    Appellant, John M. Wizinsky, brought this negligence
    action for damages against the State under Nebraska’s State
    Tort Claims Act (STCA), 
    Neb. Rev. Stat. § 81-8
    ,209 et seq.
    (Reissue 2014). Wizinsky was an inmate at the Tecumseh
    State Correctional Institution (TSCI) during the riots which
    occurred there on Mother’s Day in 2015. Wizinsky had been
    in protective custody at the time of the riots, and he suffered
    from medical conditions, including post-traumatic stress dis-
    order and diabetes. He claimed that due to negligence of the
    State of Nebraska’s Department of Correctional Services, he
    was improperly commingled with general population inmates
    and placed at serious risk, causing his post-traumatic stress
    disorder symptoms to be exacerbated. Following a 4-day trial,
    the district court for Lancaster County found in favor of
    the State on all claims. Because the State is immune from
    Wizinsky’s claims under the discretionary function exception
    of the STCA, we affirm the judgment of the district court in
    favor of the State.
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    WIZINSKY v. STATE
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    STATEMENT OF FACTS
    On Mother’s Day, May 10, 2015, the inmates at TSCI
    engaged in violent riots. At the time of the riots, Wizinsky
    was an inmate in a protective custody wing of a housing unit
    at TSCI. Beginning at approximately 2:30 p.m. and lasting
    through the night, inmates set fires, committed assaults, and
    destroyed property in multiple locations and housing units.
    Inmates seized control of some areas of the facility. Staff
    orders to lock down were refused on a widespread scale. Two
    persons died as a result of the riots.
    Wizinsky alleged that TSCI was not properly staffed and
    that during the riots, the Department of Correctional Services
    failed to use reasonable care to protect him from general pop­
    ulation inmates; failed to prevent the riots; and failed to use
    reasonable care to maintain security and have response teams
    available, resulting in worsening of his health conditions.
    The Riots.
    The riots began after the yard supervisor called for inmates
    to report to medical lines, which involved general population
    inmates walking across the main yard to the medical building
    window. Protective custody inmates were not subject to the
    call. The yard supervisor noticed a general population inmate
    walking in the wrong direction, and she used her radio to
    request assistance. Staff arrived at the main yard at approxi-
    mately 2:41 p.m., and an inmate fight broke out. During the
    fight, inmates physically attacked a staff member, pushed him
    to the ground, and attempted to stomp on his skull. The yard
    supervisor requested all available backup staff and called for
    staff onsite designated as emergency personnel, known as
    the emergency response teams. The three emergency response
    teams are composed of staff from across the system, trained
    to respond in the event of a declared emergency. When the
    situation began to escalate, staff declared an emergency, and
    the shift supervisor, Christopher Ulrick, assumed the position
    of “Initial Incident Commander” (Incident Commander) and
    established a command post.
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    The riots spread to other areas and continued to escalate. A
    group of inmates in the gymnasium held a female staff mem-
    ber hostage and threatened sexual assault. Inmates in the main
    yard attempted to break into the gymnasium windows. Security
    staff fired warning shots from the guard towers. Eventually,
    unarmed staff in the yard retreated.
    Wizinsky’s unit was initially secured by staff, and the doors
    were locked in the wings. However, two general population
    groups located in wings on opposite sides of the housing unit
    refused to lock down and began starting fires and threatening
    staff with makeshift weapons. Staff members from Wizinsky’s
    unit told the central control that they were unable to lock
    down their inmates. Incident Commander Ulrick directed them
    to secure themselves, and staff retreated to a control room.
    Inmates began barricading doors, covering control and gal-
    lery windows, moving furniture out to the “miniyards,” and
    disabling cameras. Inmates attempted to “smoke out” the staff
    who had retreated to the control room of the housing unit.
    Tactical teams gathered and reported, briefed, collected
    intelligence, and eventually deployed on the TSCI yard. They
    decided to clear the staff held hostage in the gymnasium and
    in the smoke-filled control centers of the housing units. Radio
    communication was not always possible during this period
    because of the smoke and fire, as well as the water from the
    overhead sprinklers.
    As the fires continued, Wizinsky’s housing unit began to
    fill with thick smoke, endangering the inmates in the unit. The
    command staff decided to evacuate Wizinsky’s unit. However,
    rather than evacuate protective custody inmates in the manner
    outlined in the standard fire evacuation procedure, keeping
    them separate at all times from other inmates, command staff
    gave the inmates the option to evacuate to a different miniyard,
    even though this decision would mix inmates from protective
    custody and general population units. Prison staff were not
    available to escort the inmates to the miniyards as was nor-
    mally indicated. Incident Commander Ulrick testified that he
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    decided to send all inmates in Wizinsky’s unit to yards where
    there was more space for them and more visibility. Wizinsky
    evacuated to avoid the smoke and eventually returned to his
    housing unit, where he gathered with a group of protective
    custody inmates in a locked cell for the rest of the day, play-
    ing cards.
    Security Plans and Decisions.
    TSCI staff responding to riots were guided by policies and
    procedures in the “Incident Action Plan” (Action Plan), which
    overrides other orders in the event of an emergency. The
    Action Plan set forth “guidelines for [TSCI] staff” respond-
    ing to inmate disturbances and riots to maintain a safe envi-
    ronment for staff, visitors, and inmates. The Action Plan
    instructed staff to make the initial assessment of the emergency
    and determine the appropriate course of action, taking into
    consideration various risk factors. The Action Plan permits the
    central control staff, the Incident Commander, and the emer-
    gency response teams to, inter alia, “[c]onsider,” “[a]ssess,”
    “[i]dentify,” “make immediate determination” on the situation
    and available resources, and “[d]evelop an immediate plan to
    reduce the risks involved.” The Action Plan stated that dur-
    ing an incident, the shift supervisor on duty will serve as the
    Incident Commander until relieved by transfer of command
    to the warden or his or her designee. To isolate and contain
    the situation, staff were to utilize all available resources and
    were empowered to evacuate uninvolved inmates from the
    affected areas.
    Incident Commander Ulrick testified for the State. Ulrick
    was the Incident Commander at the time of the riots who
    directed the staff to contain and secure themselves in the hous-
    ing unit control center. He testified that this appeared to be
    the best course of action to avoid additional staff assaults and
    possible hostage situations that would give the rioting inmates
    more control. After the staff secured themselves by barricad-
    ing themselves in the control center, inmates in two of the
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    galleries attempted to break in and force burning items into
    the room.
    The State’s expert, Eugene Atherton, worked in correc-
    tions for over 43 years, including service at the Colorado
    Department of Corrections as the warden of the Colorado State
    Penitentiary and director of prisons and has coauthored a book
    about preventing and managing riots. He testified that Ulrick,
    as Incident Commander, complied with the incident command
    principles and that actions done in response to the TSCI riot
    met or exceeded all correctional standards of emergency man-
    agement. He testified that nonarmed staff or nondesignated
    special team staff are not expected to place themselves in posi-
    tions where serious harm is likely to occur in order to protect
    others. According to Atherton, staff who sought shelter when
    faced with threats and fires acted in accordance with nation-
    wide standards for adult prison systems.
    TSCI Staffing.
    Wizinsky testified at trial that over time, he had noticed
    fewer staff members in the yard. The warden of TSCI testi-
    fied that as warden, he had trouble retaining staff, and that the
    turnover rate was high. Wizinsky submitted a “critical incident
    report” created after the riots, which identified the minimum
    staffing requirement for the shift as 61 and stated that the total
    number of staff on duty on the shift was 57.
    In contrast, other evidence at trial established that in the
    context of the afternoon of the riots, the minimum staff number
    was 57. The critical incident report also showed that additional
    program and recreational staff were absent in nonsecurity
    personnel posts due to prescheduled planned closures of those
    areas, explaining why there were 57, not 61, staff mem-
    bers. Incident Commander Ulrick also testified that mandatory
    posts at TSCI were filled and that additional staff resources
    were quickly called in to secure the facility, including addi-
    tional TSCI personnel working overtime, special response
    teams, and Nebraska State Patrol and Johnson County emer-
    gency personnel.
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    Atherton, as the State’s expert, opined that during the riots,
    staffing numbers were normal and consistent with the require-
    ments of the Department of Correctional Services for TSCI,
    where staffing plans had been developed by trained profes-
    sionals making reasonable decisions for staffing requirements
    for that facility. Atherton also opined that it was reasonable for
    response teams to develop a plan to prioritize the response to
    the rioting and that thus, their deployment was not delayed,
    because they were preparing and strategizing.
    The State offered an accreditation report of TSCI by the
    American Correctional Association, which, inter alia, set goals
    and objectives for minimum safety levels and required com-
    pliance audits for a period of 3 years. The 2013 accredita-
    tion report concluded that TSCI met all mandatory American
    Correctional Association standards and 438 of 440 nonmanda-
    tory standards, including such goals as facility demographics,
    security, fire safety, inmate populations, housing numbers,
    staffing numbers, facility operational capacities, and housing
    unit layouts and bed assignments.
    With respect to design capacity, Atherton testified that there
    was no support for the claim that housing more inmates than
    the design contributed to the conditions that led to the riots. He
    distinguished between design capacity and operational capac-
    ity, the latter of which was the nationally recognized stan-
    dard for inmate capacity. TSCI passed American Correctional
    Association accreditation for design capacity in 2013 and
    accreditation for operational capacity in 2015.
    Wizinsky’s Injuries.
    Prior to the riots, Wizinsky had been diagnosed with post-
    traumatic stress disorder, depression, paranoia, anxiety, bad
    dreams, trouble sleeping, and other mental health conditions.
    He also received sliding-scale insulin therapy twice a day for
    his diabetes. Normally, he received the insulin therapy each
    morning and afternoon. Wizinsky testified that on the day
    of the riots, he missed a dose of the insulin therapy in the
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    evening and felt his blood sugar was low. He was caught up
    on the missed dose the next morning, and he testified on cross-­
    examination that he had no lasting effects.
    Wizinsky testified that he observed violence, including an
    inmate kneeing and striking another inmate over the head with
    a lock. He further testified that while in the riots, he “was hit
    once and that was about it as far as being injured”; he denied
    feeling physical injuries, because he said he went numb and
    fought off the pain. Wizinsky testified that he continues to have
    violent, bad dreams and panic attacks.
    District Court Order.
    In its written order following trial, the district court found
    that the State was not negligent and that Wizinsky failed to
    prove he had suffered a legal injury proximately caused by
    the claimed negligence. Additionally, the court found that
    Wizinsky’s claims were barred by the doctrine of sovereign
    immunity under the STCA. The court found that the allegations
    “were all based on the discretion, actions and tactical decisions
    of the state employees during the riot” and that Wizinsky’s
    proof “did not escape the realm of the discretionary func-
    tion exception.”
    Wizinsky appeals.
    ASSIGNMENTS OF ERROR
    Wizinsky assigns, summarized and restated, that the district
    court erred when it found that (1) the discretionary function
    exception barred Wizinsky’s claim and (2) Wizinsky did not
    prove his causes of action for negligence.
    STANDARDS OF REVIEW
    [1,2] A district court’s findings of fact in a proceeding
    under the STCA will not be set aside unless such findings are
    clearly erroneous. Dean v. State, 
    288 Neb. 530
    , 
    849 N.W.2d 138
     (2014). In reviewing a judgment awarded in a bench trial
    of a law action, an appellate court does not reweigh evidence,
    but considers the evidence in the light most favorable to the
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    successful party and resolves evidentiary conflicts in favor of
    the successful party, who is entitled to every reasonable infer-
    ence deducible from the evidence. Mays v. Midnite Dreams,
    
    300 Neb. 485
    , 
    915 N.W.2d 71
     (2018).
    ANALYSIS
    [3] Whether a court has subject matter jurisdiction is a
    threshold issue. Lambert v. Lincoln Public Schools, 
    306 Neb. 192
    , 
    945 N.W.2d 84
     (2020). As explained below, because we
    determine that Wizinsky’s claims against the State are barred
    by the discretionary function exception to the waiver of sover-
    eign immunity under the STCA, we do not reach his substan-
    tive claims of negligence.
    Sovereign Immunity and the
    Discretionary Function.
    [4] Neb. Const. art. V, § 22, provides: “The state may sue
    and be sued, and the Legislature shall provide by law in what
    manner and in what courts suits shall be brought.” The STCA
    operates as a limited waiver of the sovereign immunity of the
    State, but is subject to statutory exceptions. The State retains
    its sovereign immunity with respect to certain listed exceptions
    found in the STCA. See § 81-8,219. In particular, the STCA
    contains a “discretionary function” exception to the waiver of
    sovereign immunity for certain claims. According to the excep-
    tion, the STCA shall not apply to, inter alia:
    Any claim based upon an act or omission of an employee
    of the state, exercising due care, in the execution of a
    statute, rule, or regulation, whether or not such statute,
    rule, or regulation is valid, or based upon the exercise or
    performance or the failure to exercise or perform a dis-
    cretionary function or duty on the part of a state agency
    or an employee of the state, whether or not the discretion
    is abused.
    § 81-8,219(1).
    In other words, the State has not waived immunity for
    any claim based on the performance or nonperformance of a
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    discretionary function or duty. See Holloway v. State, 
    293 Neb. 12
    , 
    875 N.W.2d 435
     (2016).
    [5] The purpose of the discretionary function exception of
    the STCA is to prevent judicial “second-guessing” of legis-
    lative and administrative decisions grounded in social, eco-
    nomic, and political policy through the medium of action in
    tort. Lambert v. Lincoln Public Schools, 
    supra.
     An example
    of a discretionary function is a judgmental decision made
    within a broad regulatory framework lacking specific stan-
    dards. Kimminau v. City of Hastings, 
    291 Neb. 133
    , 
    864 N.W.2d 399
     (2015).
    [6] We have consistently applied the foregoing principles,
    but we have not always articulated them in a disciplined man-
    ner. We take this opportunity to do so. Broadly speaking,
    actors at the highest level of government are more likely as
    a general matter to be engaged in policy decisions to which
    the discretionary function exception applies than actors at the
    operational level, where the spectrum of acts from discretion-
    ary to merely ministerial is on greater display. But that does
    not mean that the discretionary function exception can never
    apply at the operational level. In determining whether the
    discretionary function exception applies, thereby shielding the
    actor from liability, the focus is on the nature of the conduct,
    rather than the status of the actor. Holloway v. State, supra. For
    STCA purposes, a discretionary function or duty encompasses
    policy judgment. Under the STCA, the performance or nonper-
    formance of a discretionary function, regardless of the level of
    the actor, cannot be the basis of liability, because the statutory
    discretionary function exception applies. Holloway v. State,
    supra. See § 81-8,219(1).
    [7] A two-part analysis determines whether the discre-
    tionary function exception of the STCA applies. Lambert v.
    Lincoln Public Schools, 
    306 Neb. 192
    , 
    945 N.W.2d 84
     (2020).
    First, the court must consider whether the action is a matter
    of choice for the acting political subdivision or employee. 
    Id.
    Second, if the court concludes that the challenged conduct
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    involves an element of judgment, it must then determine
    whether that judgment is of the kind that the discretionary
    function exception was designed to shield. 
    Id.
    Wizinsky’s Claims.
    We begin with Wizinsky’s claims that staffing at TSCI was
    insufficient and that the prison was beyond its capacity. We
    agree with the district court that the discretionary function
    exemption shields the State from liability, because decisions to
    set staffing requirements and operational capacity are matters
    of policy. Evidence at trial was that the prison met its minimum
    staffing requirements on the day of the riots and was in compli-
    ance with its operational inmate capacity. We have previously
    explained that the utilization of staff is an administrative deci-
    sion grounded in social, economic, and political policy, and
    it falls within the discretionary function exception. See 
    id.
    Wizinsky’s argument to the contrary is without merit.
    Wizinsky’s remaining claims identify the alleged failure
    during the riots of prison administrators and officials, includ-
    ing Incident Commander Ulrick, the warden, and the vari-
    ous emergency response teams, to take certain measures to
    secure protective custody inmates and guarantee their safety
    and medical needs. Decisions on where to allocate security
    forces, how to implement evacuation plans, when to retreat,
    where to deploy emergency response teams, and all other
    conduct Wizinsky claims was negligent are of a discretion-
    ary nature. Wizinsky contends that TSCI policies, especially
    nonemergency policies, prescribed courses of action for prison
    officials to follow in all situations, including prison uprisings.
    However, our review of the relevant TSCI policies and pro-
    cedures, including the Action Plan, shows that they provide
    a broad set of guidelines which allowed prison officials and
    emergency response teams discretion to assess a developing
    uprising, plan an appropriate response, and deploy resources
    accordingly. As noted above, the Action Plan permits the
    TSCI central control staff and emergency response teams to
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    “[c]onsider,” “[a]ssess,” “[i]dentify,” “[d]etermine,” and evalu-
    ate responses that are “appropriate” and “possible”—all hall-
    marks of situational discretion. For example, with respect to
    Incident Commander Ulrick’s order to evacuate Wizinsky’s
    unit in a different manner than was typical, this decision was
    based on the fires proximate to Wizinsky’s unit, poor visibility
    rendering normal video security ineffective, and the fact that
    staff was needed in other locations and was unable to escort
    inmates individ­ually. Numerous jurisdictions have held that
    response strategies to prison uprisings and riots are discretion-
    ary. For example, in Buchanan v. U.S., 
    915 F.2d 969
    , 971 (5th
    Cir. 1990), the Court of Appeals for the Fifth Circuit noted that
    “no statute, regulation, or policy does, or indeed could, specifi-
    cally prescribe a course of action for prison officials to follow
    in every prison uprising.”
    Turning to the second part of the discretionary function
    analysis, this case arises from the decisions by prison officials
    with respect to deploying resources and staff in response to an
    unfolding riot, which are the kinds of judgments the discre-
    tionary function exception was designed to shield. The U.S.
    Supreme Court has observed that “[w]hen the ‘ever-present
    potential for violent confrontation and conflagration’ . . . ripens
    into actual unrest and conflict, the admonition that ‘a prison’s
    internal security is peculiarly a matter normally left to the dis-
    cretion of prison administrators’ . . . carries special weight.”
    Whitley v. Albers, 
    475 U.S. 312
    , 321, 
    106 S. Ct. 1078
    , 
    89 L. Ed. 2d 251
     (1986) (citations omitted). It has been observed,
    and we agree, that “[p]rison officials’ minute-to-minute deci-
    sion making in the chaotic circumstances of a riot is a classic
    example of an activity requiring the exercise of discretion . .
    . .” Buchanan v. U.S., 
    915 F.2d at 972
    . Wizinsky’s testimony
    of his experience during the riots evidences the quickly chang-
    ing situations that can arise during prison unrest requiring
    prison officials and response teams to exercise discretion. This
    is “precisely the kind of judgment the discretionary function
    exception is designed to shield.” Lambert v. Lincoln Public
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    Schools, 
    306 Neb. 192
    , 202, 
    945 N.W.2d 84
    , 91 (2020). With
    respect to Wizinsky’s challenges to the decisions by TSCI staff
    to prioritize and develop strategies to restore order and security
    during the riots, such claims fall within the discretionary func-
    tion exception and are barred by the STCA.
    CONCLUSION
    The district court correctly concluded that the discretion-
    ary function exception to the STCA shielded the State from
    liability from Wizinsky’s claims based on the 2015 Mother’s
    Day riots at TSCI. Accordingly, we affirm the judgment of the
    district court.
    Affirmed.
    Freudenberg, J., not participating.