Nebraska's Department of Correctional Services and Board of Parole on Monday asked the U.S. District Court of Nebraska to partially dismiss a class-action lawsuit on behalf of inmates filed in August by the ACLU of Nebraska.

In its first response to the claims, the motion and accompanying brief said the ACLU had "overreached," with the lawsuit stretching to include Americans with Disabilities Act claims on behalf of inmates alleging "hypothetical future injuries" that rest on events that may not even occur.

The motion by Nebraska Attorney General Doug Peterson asks that all claims against the Board of Parole and Julie Micek, director of the division of parole supervision, and designated claims against the Corrections Department and the Board of Parole be dismissed.

The state filing also claims the 11th Amendment bars lawsuits in federal court against the department and Board of Parole.

In the ACLU lawsuit, the inmates ask that the Nebraska Department of Corrections and Nebraska Board of Parole immediately address overcrowding, and the lack of adequate medical, dental and mental health care, as well as provide accommodations for prisoners who are blind, deaf, hard-of-hearing or have other disabilities.

The state took the opportunity in its brief to comment on the public scrutiny, attention and criticism it has been subjected to by officials, lawmakers, advocates and journalists.

There's been much scrutiny of the complex prison system, the state said, and criticism leveled against it related to crowding, health care, management, programming and staffing. Some of it, the state said, has been constructive and has contributed to meaningful improvements. But some has not been warranted, and inaccurately portrayed the prison system.

Peterson said the case presents an opportunity to examine whether the legal merit of the inmates' claims match the rhetoric of the ACLU lawyers. The brief cited an editorial written by David Fathi, director of the ACLU’s National Prison Project, that ran in August in the U.S edition of The Guardian newspaper, headlined "This prison causes heart attacks, blindness and mental illness."

Although "the blunt instrument of adversarial litigation is a poor and costly tool for effectively shaping policy," Peterson said, the court is perhaps the ideal forum for testing the truthfulness of several of the more grave and strident claims leveled against the department and its people.

ACLU of Nebraska director Danielle Conrad responded, saying the organization is conducting a full review of the state’s motion with all attorneys participating in the suit, but at first blush, the filing contains nothing unexpected.

"We will continue to vigorously pursue this case on behalf of our clients and all Nebraskans who are incarcerated and suffering in our crisis-riddled prison system to ensure access to basic health care, end solitary confinement, provide accommodations for those living with disabilities and other concerns raised in our case," Conrad said.

She said the ACLU will renew its plea to state officials to negotiate a fair settlement, "to end the needless pain and suffering in our prisons and move the state forward.”

The ACLU will reply by Dec. 11, she said.

ACLU of Nebraska filed the lawsuit against the department, Director Scott Frakes, the Board of Parole and others on behalf of Nebraska inmates, saying the prisons have reached a state of chaos that daily endangers the health, safety and lives of prisoners and staff.

As of Aug. 14, the state's prisons combined were operating at approximately 162 percent of design capacity, according to Doug Koebernick, the Nebraska inspector general for corrections. All but three were operating at more than 165 percent, with the Diagnostic and Evaluation Center in Lincoln operating at 294 percent. In September, a 100-bed building opened at the Community Corrections Center-Lincoln to ease crowding there.

The Board of Parole impacts the prison population by its efforts to parole inmates and its decisions to return those who have been paroled for certain behavior once they are on parole.

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