United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on case management. After
Defendants' removal of Case No. 4:17CV3047, the court
granted Defendants' motions to consolidate the
above-captioned cases as to Guerry's federal
constitutional claims and remanded Guerry's state law
claims against Defendants to the District Court of Johnson
County, Nebraska. (See Filing No. 11.) Case No.
8:15CV323, the non-removed case, has of course proceeded
substantially further than Case No. 4:17CV3047. For clarity,
the court now sets forth the federal constitutional claims in
this consolidated matter.
Case No. 8:15CV323
remaining claims from this case are Eighth Amendment
failure-to-protect claims against Defendants Scott Frakes,
Brian Gage, Chelsea Guiffre, and Daniel Thompson for monetary
damages in their individual capacities. (SeeFiling No.
33.) Guerry's underlying factual allegations are the
same as those underlying his failure-to-protect claims in
Case No. 4:17CV3047 below.
Case No. 4:17CV3047 
Eighth Amendment Claims
Failure to Protect
asserts that Defendants failed to protect him from gangs and
fires during the prison riot at the Tecumseh State
Correctional Institution on May 10, 2015. For the reasons set
forth in the Memorandum and Order at Case No. 8:15CV323,
Filing No. 13, this claim will not proceed against
Defendants Keith Broadfoot and R. Holly. This claim will,
however, proceed against all other Defendants.
Conditions of Confinement
asserts that Defendants failed to move him out of his cell
where he was exposed to burning plastic, oil water
contaminated with blood, human waste, and sewage for four or
more days following the prison riot. He asserts that his
blankets, sheets, and bed contained blood of another inmate
for a similar amount of time. He alleges that he had to eat
and sleep in those conditions. This claim will proceed
Deliberate Indifference to Serious Medical Needs
alleges that certain Defendants denied him medical treatment
for smoke inhalation and related symptoms for twenty-two days
following the prison riot. He received treatment on June 2,
2015. Guerry fails to allege that he suffered any specific
detrimental effect from the delay of medical treatment.
See Moots v. Lombardi, 453 F.3d 1020, 1023
(8th Cir. 2006) (inmate claiming deliberate indifference
based on delay in treatment must allege that delay caused
harm). This claim will not proceed.
Equal Protection Claim
asserts that certain Defendants violated his right to equal
protection when they abandoned him and other protective
custody inmates in Housing Unit 2-C during the prison riot.
He alludes to overcrowding in Housing Unit 2-C as a reason
for the violation when he alleges that the protective custody
inmates in that unit had to double-bunk. Guerry, however,
fails to allege that he was treated differently than others
who were similarly situated to him, specifically, that he was
treated differently than others in Housing Unit 2-C. See
Klinger v. Department of Corrections, 31 F.3d 727, 731
(8th Cir. 1994) (“Dissimilar treatment of dissimilarly
situated persons does not violate equal protection.”).
He asserts in various parts of his complaint that Defendants
moved inmates in Housing Units 2-A and B out of the
conditions noted above, but prison officials could have had
any number of reasons for moving those inmates sooner than
those in Housing Unit 2-C and ...