by Mark Wilson
On May 10, 2022, the federal court for the District of Nebraska granted dismissal to the estate of a prisoner murdered by his cellmate, while the two were double-bunked despite being classified for restrictive housing. Under the settlement negotiated in exchange, Nebraska prison officials agreed to pay $479,000 to the dead prisoner’s estate.
The dead man, Terry Berry, Jr., 22, was fatally strangled at Tecumseh State Correctional Institution (TSCI) in April 2017 by fellow prisoner Patrick Schroeder. The state later secured a capital murder conviction against Schroeder, and the 45-year-old was awaiting execution when he committed suicide at TSCI on August 29, 2022.
In 2017, when Berry was killed, the state Department of Correctional Services (NDCS) was operating at about 160% of design capacity, according to an internal report. TSCI was at 107% of its capacity of 960 prisoners. As noted in a report by the Vera Institute of Justice on November 1, 2016, “Severe overcrowding, a shortage of corrections and mental health staff, and insufficient educational, vocational, and therapeutic programming and mental health treatment for incarcerated people” at NDCS prisons contributed to overuse of segregation.
Due to NDCS overcrowding and inadequate staffing, TSCI in fact relied heavily on the use of segregation, including restrictive housing units (RHUs), which are defined as “conditions of confinement that provide limited contact with other offenders, strictly controlled movement while out of cell, and out-of-cell time of less than twenty-four hours per week.”
Berry was confined at TSCI on forgery and assault convictions in 2015, with a tentative release date of December 8, 2017. Also held there was Schroeder, who had been convicted of murdering a 75-year-old and confined at TSCI in 2007. Prison staff reportedly knew that he had a bad temper, for which he spent extensive time in RHU. Berry was also known for misbehavior and needing anger management. In fact, he was placed on the anger management waiting list in March 2016, but he never received counseling.
Both Schroeder and Berry were in single cells in RHU until April 10, 2017. That day, a TSCI employee identified as Doe 1 informed Schroeder that he would have to share a cell with another prisoner unless he agreed to move to a different housing unit. An employee identified as Doe 2 separately gave Berry the same choice. Schroeder told Doe 1 that he did not want a cellmate. Both prisoners refused to move to a different unit.
When Schroeder learned that Berry would be moved into his cell, he told caseworker Joann Helton that he didn’t want the other prisoner in h is cell because Berry had “enemies, was talkative and ... dirty.” Nevertheless, minutes later, Unit Managers Athena Brown and Todd Haussler moved Berry into Schroeder’s cell.
Helton “expressed concern,” according to the complaint later filed on Berry’s behalf, “stating she ‘personally felt that it was not the best idea’ since Berry ‘was known to be talkative and bothersome,’ and that Schroeder ‘in for life, with a temper would not want someone like’ Berry as a cellmate.”
Helton reported her concerns to acting Lt. Dustin Gustafson. He claimed “there wasn’t much that could be done unless she called the person responsible for making the decision at their home.” Helton did not do so. But she reportedly repeated her concerns to two unidentified TSCI employees. Once Berry was moved into Schroeder’s cell, however, no TSCI staff reviewed the decision.
On April 15, 2017, the fifth day in the cell together, Schroeder apparently had enough of Berry. He wrapped his arm around Berry’s neck and squeezed for five minutes until he went limp. Then he twisted a towel around Berry’s neck and continued squeezing until he was certain Berry was dead.
When guards later discovered Berry during a routine tier check, they attempted CPR. He was transported to a hospital, where doctors declared Berry brain-dead two days later on April 17, 2017. He was removed from life support and died on April 19, 2017. An autopsy confirmed the cause of death as asphyxia due to external compression of the neck structures – in other words, strangulation. The listed manner of death: homicide.
Telena Moser was appointed personal representative of Berry’s estate, and she brought suit in federal court for the District of Nebraska. Proceeding under 42 U.S.C. § 1983, she accused prison officials of deliberate indifference to the risk Schroeder posed to Berry’s safety, in violation of the doomed man’s Eighth Amendment guarantee of freedom from cruel and unusual punishment.
Defendants moved to dismiss the complaint. On July 17, 2019, the Court agreed to dismiss counts against NDCS Director Scott Frakes and TSCI Warden Brad Hansen. But it refused to dismiss the claims against Brown, Haussler, Helton, Gustafson or Does 1 & 2, because it could not conclude that the named defendants were entitled to qualified immunity. The estate was also entitled to identify the Doe Defendants through discovery, the Court said. See: Moser v. Frakes, 2019 US Dist.LEXIS 120796 (D. Neb.).
The parties proceeded to reach their settlement on October 21, 2021. Under its terms, Defendants agreed to pay Berry’s estate $479,000, “including claims for attorneys’ fees, associated costs, and expenses.” The first $50,000 was to be paid within 30 days, with the remaining $429,000 paid within 30 days of review and approval by the Nebraska Legislature; that’s why it took another seven months before the payment could be completed and Plaintiff secured dismissal of her claims.
Defendants refused to admit liability, which is typical of such agreements. They also required Plaintiff and her attorneys to agree not to disparage them or discuss details of the litigation or settlement, either directly or indirectly.
Berry’s estate was represented by Thomas J. Monaghan and Rodney C. Dahlquist of the Omaha firm of Dornan, Troia, Howard, Breitkreutz & Conway, PC, LLC. See: Moser v. Frakes, USDC (D. Neb.), Case No. 8:18-cv-00551.
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