Walters v. Frakes

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www.nebraska.gov/apps-courts-epub/
01/12/2021 08:07 AM CST

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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

Richard Walters, appellant, v.
Scott Frakes et al., appellees.
___ N.W.2d ___

Filed January 5, 2021. No. A-19-532.

1. Judgments: Appeal and Error. In a bench trial of a law action, the trial
court’s factual findings have the effect of a jury verdict and will not be
disturbed on appeal unless clearly wrong.
2. ____: ____. 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 successful party, who is entitled to
every reasonable inference deducible from the evidence.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
5. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
6. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
7. ____: ____. A court action taken without subject matter jurisdiction
is void.
8. Tort Claims Act: Immunity: Waiver: Appeal and Error. An exception
to the State’s waiver of immunity under the State Tort Claims Act is an
issue that the State may raise for the first time on appeal and that an
appellate court may consider sua sponte.
9. Tort Claims Act: Appeal and Error. An appellate court has the power
to determine whether a plaintiff’s allegations, taken as true, show
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

that a tort claim is facially barred by a State Court Claims Act exception
under Neb. Rev. Stat. § 81-8,219 (Reissue 2014).
10. Tort Claims Act. In determining whether the discretionary function
exception to the State Tort Claims Act applies, a court engages in a two-
step analysis. First, the court considers whether the action is a matter
of choice for an acting employer. If the court concludes that the chal-
lenged conduct involves an element of judgment, it must then determine
whether the judgment is of a kind that the discretionary function was
designed to shield.
11. ____. The discretionary function exception extends only to basic policy
decisions made in governmental activity and not to ministerial activities
implementing such policy decisions.
12. Negligence: Proof. In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff, a breach
of such duty, causation, and damages.
13. Trial: Evidence: Appeal and Error. An appellate court will consider
the fact that the trial court saw and heard the witnesses and observed
their demeanor and, therefore, will give great weight to the trial court’s
judgment regarding credibility.

Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
F. Matthew Aerni, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellees.
Pirtle, Bishop, and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Richard Walters, an inmate at the Nebraska Department of
Correctional Services (DCS), sued Scott Frakes, the director of
DCS; DCS; and John Does 1 through 99 (collectively referred
to as “the Appellees”), for alleged negligent failure to respond
to his medical complaints and condition which resulted in per-
manent injury to him. The district court ruled in favor of the
Appellees, finding there was no breach of duty in connection
with Walters’ claim. We affirm.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

II. STATEMENT OF FACTS
On July 8, 2015, Walters was an inmate at the Nebraska
State Penitentiary when, at approximately 10:30 a.m., he com-
plained to a staff member assigned to his floor regarding
a medical problem that Walters was experiencing. At trial,
Walters described his first attempt to report his condition as
follows: “I seen them. I told them — I never had it before
and so I say I got groin issues (indicating), something, it ain’t
going away, it’s hurting.” In connection with his grievance,
Walters acknowledged he pointed in the direction of his groin,
but never specifically indicated that the medical issue he was
experiencing had to do with an erection or his penis. Walters
testified that the staff member told him he would contact medi-
cal personnel, but no medical personnel responded.
Walters testified he notified a different staff member about
his medical issue nearly 8 hours later at about 7 p.m. During
trial, the following colloquy occurred between Walters and his
counsel regarding his second report:
Q. So around 7 o’clock someone is coming around
with medications and you’re able to catch this person and
you’re able to tell them about your problem?
A. Yes.
Q. . . . .
When you’re telling this person about your problem,
did you use the word erection?
A. No.
Q. Did you use any slang?
A. No.
Q. Okay. I presume you did not use the word priapism?
A. No. I didn’t know what that was.
Q. Didn’t even know what that was until later on, right?
A. Way later.
Q. Yeah. When that second person was coming around
and you’re telling them about your problem, I understand
you did not use those specific words we just talked about?
A. No.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

Q. What did you do to let this person know that you
had a problem with your penis and you’d had it since,
give or take, 8 in the morning?
A. I said — because I had seen him before, I seen the
CO before, and he usually worked 6 to 2 on the first shift.
He did half an extra shift because we were short-handed,
we had been short-handed. So he came up, he had [a] med
card, the other CO didn’t have a med card. You have to
have a med card to pass out meds. I was familiar with
him. I had seen the CO a few times on the yard.
....
A. I was just a little more comfortable, I didn’t want
to — there’s inmates around, he’s passing out meds, he’s
doing supplies. So, I mean, I got a problem down here
(indicating), it’s been like that since about 8 o’clock this
morning and it won’t go away. And, man, can you please
call medical.
....
Q. When you told him you had a problem . . . since
8 a.m., did you gesture towards your groin?
A. Yeah (indicating).
Q. And you’re kind of doing that now?
A. I was trying to be [discreet] about it because . . .
he’s at my door. He opens two doors at a time, two to
three doors, like, two doors and two doors across from
each other, the hallway. So I’m trying to talk to him and
be [discreet] and letting him know. He says, oh, I’ll say
something, I’ll call medical, see what I can do.
Again, no one responded.
Walters then testified that, at approximately 10 p.m., he
notified a third shift operator that he was experiencing groin
pain and again pointed in the direction of his groin with-
out further explanation. Walters explained he did not want
to further elaborate on the specific nature of the condition
because of his embarrassment and desire to remain discreet
because of the presence of other inmates. Although the staff
person indicated he would inform medical staff, no medical
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

personnel immediately responded. Walters then testified he
could not sleep because of the pain associated with the con-
dition, and he did not have another opportunity to report his
condition until the following day at 4 a.m.
On July 9, 2015, at 4 a.m., Walters reported that the staff
person to whom he last reported his condition at 10 p.m. came
around and Walters asked what happened in connection with
his prior report. According to Walters, that staff person indi-
cated that he called medical staff but that they had not yet
responded because Walters’ condition was not a serious issue.
In response, Walters stated he disagreed in that his condition
had been ongoing since 8 a.m. the previous day with no relief.
At that point, Walters stated that he might have indicated the
condition had to do with an erection, but he was unsure. He
then pressed the staff person as to why he waited so long to
come back. In response, Walters stated the staff person indi-
cated Walters would have to “wait till rounds.” At 6:30 a.m.,
when the inmates came out for breakfast, Walters reported that
a caseworker with whom he was familiar was working. Walters
indicated that the caseworker asked him why he was walking
funny and that Walters, who had greater familiarity with the
caseworker, more explicitly described the nature of his medical
issue which was that he had a constant, painful erection since
the previous day. As a result of this report, and in connection
with what Walters described as the normal rounds for a nurse to
see inmates between 7 and 9 a.m., Walters was finally attended
to by the nurse. Walters reported that after examining Walters,
the nurse reacted immediately and arranged for Walters to be
transported to see a doctor. Walters stated that while he was in
the doctor’s office, the attendants described his situation as an
emergency, and he was taken to the hospital, was the recipient
of emergency surgery, and eventually suffered through a pain-
ful recovery.
The district court noted in its order:
Walters was diagnosed with priapism. Priapism is a pro-
longed (and/or spontaneous) erection of the penis that
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

lasts for more than four hours. Left untreated, priapism
can cause permanent erectile dysfunction. If priapism is
treated within a four to six-hour window after initial erec-
tion, there is a greater likelihood of a full recovery. Even
if priapism is treated within a four to six-hour window,
there is still a chance that permanent damage will be
done. After that four to six-hour window, the chances for
a full recovery decrease and a greater chance exists that
permanent erectile dysfunction will result.
The court finds that . . . Walters will likely experi-
ence permanent damages as a result of his priapism
and treatment.
The first written evidence governing Walters’ report appears
in a medical chart received into evidence as exhibit 7. That
chart indicates that at 4:10 a.m. on July 9, 2015, the staff
member to whom Walters reported his medical issue notified
the night shift medical nurse about Walters’ report. That nurse
indicated that Walters had reported “groin pain” and that, after
conducting a medical chart review, “groin pain” did not con-
stitute a medical emergency. The entry on the chart indicated
the staff member was instructed to let the inmate know that the
nurse would be around in the morning and that Walters could
have his issue addressed at that time.
On cross-examination, Walters testified to his familiarity
with sending written emergency grievances and agreed he did
not initiate either based upon his prior experiences of response
time in connection with such process. But Walters also identi-
fied a prior incident where he notified penitentiary staff that
he had chest pains which resulted in an immediate medi-
cal response.
During his case in chief, Walters offered the videotaped
deposition of Dr. Robert Rhodes, a board-certified family
physician in Lincoln, Nebraska. During cross-examination, as
it related to Walters’ report of symptoms, the following col-
loquy ensued:
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

Q. And if a patient told you that he had groin pain, or
if a patient had called you and told you that he had groin
pain, would you tell him to go to the emergency room?
A. I might ask more questions. But I don’t think that
just with the term “groin pain” I would send someone to
the ER.
On redirect, the issue was readdressed by Walters’ counsel
as follows:
Q. [State’s counsel] asked some questions about groin
pain or, . . . if a patient, you know, contacts you.
So, hypothetically, if I were your patient and I con-
tacted you, said, “Dr. Rhodes, I have some groin pain
today, what should I do,” you said that you might ask
some more questions.
Were you kind of downplaying your role there when
you say “might[?”]
A. Well, I would. I would think, you know, is it mus-
cular, like they were playing basketball and they have a
pulled groin, or could there be something else going on
neurologically, testicular erection, burning with urina-
tion, discharge.
It kind of falls into that area of the body where —
when someone says something is wrong down there,
that’s a whole big bucket for me to start to kind of ask
what’s wrong down there.
And groin pain might be included in . . . that area.
After reviewing this evidence, the district court ulti-
mately held:
Walters had numerous opportunities that day to disclose
his condition to various staff, to send an inmate interview
request to medical, or to file an emergency medical griev-
ance. . . . Walters knew how to submit an inmate inter-
view request to medical and how to file an emergency
medical grievance. . . . Walters could have either verbally
informed staff of his condition or written it down if he
didn’t want to be heard by other inmates.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

In summary, . . . Walters had a serious medical con-
dition. He failed to convey that condition to [DCS]
staff despite having numerous opportunities to do so.
He has not met his burden of proof accordingly and his
Complaint should be dismissed.
Walters now appeals from the order of dismissal.
III. ASSIGNMENT OF ERROR
Walters contends that the district court was clearly wrong in
holding that the Appellees did not breach their duty to provide
medical care to him.
IV. STANDARD OF REVIEW
[1,2] In a bench trial of a law action, the trial court’s factual
findings have the effect of a jury verdict and will not be dis-
turbed on appeal unless clearly wrong. Bloedorn Lumber Co.
v. Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018). In review-
ing 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 successful party,
who is entitled to every reasonable inference deducible from
the evidence. Id.
V. ANALYSIS
1. Jurisdiction
[3-7] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Gem City Bone & Joint v.
Meister, 306 Neb. 710, 947 N.W.2d 302 (2020).
Subject matter jurisdiction is the power of a tribunal to
hear and determine a case in the general class or category
to which the proceedings in question belong and to deal
with the general subject matter involved. Parties cannot
confer subject matter jurisdiction upon a judicial tribunal
by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

conduct of the parties. Lack of subject matter jurisdiction
may be raised at any time by any party or by the court
sua sponte. A court action taken without subject matter
jurisdiction is void.
In re Estate of Evertson, 295 Neb. 301, 307, 889 N.W.2d 73,
79 (2016).
In response to this court’s request at oral arguments for
supplemental briefing on possible jurisdictional issues, the
Appellees argue that Walters’ claim, as pled, was that
prison staff breached their duty to provide him with
medical care by failing to provide the “care, skill, and
knowledge ordinarily possessed and used under like cir-
cumstances by other corrections departments engaged
in similar care of similar inmates when they failed to”
“immediately inform[,”] “immediately contact[,”] and
“accurately present [Walters’] complaint” to “prison med-
ical staff [.”]
Supplemental brief for appellees at 4 (emphasis in original).
The Appellees also suggest in their supplemental brief that
Walters removed his claim from the general waiver of tort
immunity under the State Tort Claims Act (STCA). Specifically,
the Appellees argue that as pled, the claim violates the gen-
eral waiver provision found in Neb. Rev. Stat. § 81-8,215
(Reissue 2014) and the discretionary function exception to
the general waiver of immunity found in Neb. Rev. Stat.
§ 81-8,219(1) (Reissue 2014). We will discuss these arguments
independently.
(a) Application of § 81-8,215
[8,9] The Appellees first argue that they did not consent
to be sued under the specific circumstances pled by Walters,
due to an exception to the general waiver of tort immunity
contained within § 81-8,215. Although the Appellees did not
affirmatively allege they were immune from suit under the
STCA, the Nebraska Supreme Court recently held in Davis
v. State, 297 Neb. 955, 979-80, 902 N.W.2d 165, 186 (2017),
as follows:
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WALTERS v. FRAKES
Cite as 29 Neb. App. 315

We conclude that our cases holding that the State
must plead and prove an exception to the STCA are
clearly erroneous to the extent they can be read to hold
that a state attorney waives an immunity defense under
§ 81-8,219 by failing to raise it in a pleading or to a
trial court. To the extent that they can be so interpreted,
the cases cited in footnotes 28 and 31 are overruled. We
hold that an exception to the State’s waiver of immunity
under the STCA is an issue that the State may raise for
the first time on appeal and that a court may consider
sua sponte.
This holding does not mean that the State may litigate
factual disputes relevant to the application of an STCA
exception for the first time on appeal. But an appellate
court has the power to determine whether a plaintiff’s
allegations, taken as true, show that a tort claim is facially
barred by an STCA exception under § 81-8,219.
As in Davis, we now turn to the allegation in Walters’ com-
plaint as it relates to the Appellees’ first contention.
The basic construct of the STCA was laid out by the
Nebraska Supreme Court in Davis. There, the court explained:
Section 81-8,209 of the STCA bars tort claims against
the State, its agencies, and its employees unless the State
has waived its immunity for the claim: “The State of
Nebraska shall not be liable for the torts of its officers,
agents, or employees, and no suit shall be maintained
against the state, any state agency, or any employee of the
state on any tort claim except to the extent, and only to
the extent, provided by the [STCA].”
Section 81-8,215 is the State’s general waiver of tort
immunity under the STCA. In relevant part, it provides
that the State “shall be liable in the same manner and
to the same extent as a private individual under like
circumstances.”
Davis v. State, 297 Neb. at 969, 902 N.W.2d at 180.
Applying those principles to the case at bar, the
Appellees argue:
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 315

The “heart” of Walters’ complaint was inadequate com-
munication by guards and prison staffers to the medical
staff, not the care actually provided by the medical staff.
Unlike a situation involving private individuals, Walters
was in a prison with corresponding security require-
ments. When Walters chose to allege his tort claim in
the context of what prison staff and guards should and
should not do when communicating with medical staff,
he necessarily removed his claim from Section 81-8,215’s
limitation of the State “shall be liable in the same manner
and to the same extent as a private individual under like
circumstances[.”] Because, per Davis, the “state defend­
ants could not have committed the tortious acts set out
in [Walters’] complaint as private individuals[,”] Walters
alleged a state tort claim complaint that was jurisdiction-
ally barred by sovereign immunity. Private individuals
don’t have or need prison guards to communicate with
medical staff.
Supplemental brief for appellees at 4-5.
Indeed, the Nebraska Supreme Court did find in Davis that
employees of the Nebraska Board of Parole and DCS had no
parallel function as private individuals in relation to calculat-
ing an inmate’s mandatory minimum sentence on behalf of
their State employer. But can the same be said with regard to
the role of prison guards in reporting the medical complaints
of inmates?
Because we find no direct Nebraska Supreme Court prec-
edent on this specific issue, we now look to U.S. Supreme
Court precedent governing the Federal Tort Claims Act
(FTCA) to inform our reading of Nebraska statutes patterned
after federal legislation. See Jill B. & Travis B. v. State, 297
Neb. 57, 899 N.W.2d 241 (2017). The U.S. Supreme Court
found that a similar “private individual” exception to the gen-
eral waiver of federal tort liability in the FTCA did not apply
to a similar factual scenario in United States v. Muniz, 374
U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963). In Muniz,
the Court reviewed separate claims in which prison guards
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WALTERS v. FRAKES
Cite as 29 Neb. App. 315

were alleged to have failed to protect inmates which resulted
in personal injury. One such claim involved an inmate con-
fined to a U.S. penitentiary in Indiana. The inmate originally
complained of symptoms that included dizziness, loss of bal-
ance, and difficulty with vision. He was originally diagnosed,
and treated for, hypertension, but his symptoms increased in
severity. Despite repeated complaints to prison officials, the
inmate was given no further treatment. The inmate’s attor-
ney eventually became alarmed by his client’s symptoms and
had him separately examined by a consulting physician. That
examination resulted in the discovery of a benign brain tumor.
The inmate eventually received surgery which successfully
removed the tumor, but the inmate lost his sight. The inmate
eventually sued the government and alleged that the negli-
gence of the government’s prison employees in not reporting
his complaints resulted in the delay in diagnosis and caused
his blindness.
The government alleged the inmate was not entitled to
maintain the suit in negligence, due, in part, to the provi-
sions of a federal statute. That statute gave the district court
jurisdiction
“‘of civil actions on claims against the United States,
for money damages, . . . for . . . personal injury . . .
caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the
scope of his office or employment, under circumstances
where the United States, if a private person, would be
liable to the claimant in accordance with the law of the
place where the act or omission occurred.’ 28 U.S.C.
§ 1346(b).”
Muniz, 374 U.S. at 152. The FTCA further provides that the
“‘United States shall be liable, respecting the provisions of
this title relating to tort claims, in the same manner and to the
same extent as a private individual under like circumstances.’
28 U.S.C. § 2674.” Muniz, 374 U.S. at 153. The government
argued, like the Appellees do here, that the prison employees’
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WALTERS v. FRAKES
Cite as 29 Neb. App. 315

conduct had no parallel in function to private individuals
and that, pursuant to the FTCA, the government did not con-
sent to be sued for a claim of this nature. In response, the U.S.
Supreme Court framed the issue as “[w]hether a claim could
be made out would depend upon whether a private individual
under like circumstances would be liable under state law, but
prisoners are at least not prohibited from suing.” Muniz, 374
U.S. at 153.
After reviewing the legislative history of the FTCA, the
Court first concluded that Congress intended to permit such
suits. The Court held that “[f]or a number of reasons, it appears
that Congress was well aware of claims by federal prisoners
and that its failure to exclude them from the provisions of the
[FTCA] in 28 U. S. C. § 2680 was deliberate.” United States
v. Muniz, 374 U.S. 150, 153-54, 83 S. Ct. 1850, 10 L. Ed. 2d
805 (1963). Further, in relation to the government’s argument
that there was “the absence of an analogous or parallel liability,
on the part of either an individual or a State,” id., 374 U.S. at
159 (principle reason previously cited by U.S. Supreme Court
in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L.
Ed. 152 (1950), for not allowing suit under FTCA), the Muniz
Court held, “And in any event, an analogous form of liability
exists. A number of States have allowed prisoners to recover
from their jailers for negligently caused injuries and several
States have allowed such recovery against themselves,” 374
U.S. at 159-60. After further refuting the government’s argu-
ments, the Muniz Court ultimately held:
The [FTCA] provides much-needed relief to those suf-
fering injury from the negligence of government employ-
ees. We should not, at the same time that state courts are
striving to mitigate the hardships caused by sovereign
immunity, narrow the remedies provided by Congress.
As we said in Rayonier, Inc., v. United States[, 352 U.S.
315,] 320, [77 S. Ct. 374, 1 L. Ed. 2d 354 (1957),] “There
is no justification for this Court to read exemptions into
the [FTCA] beyond those provided by Congress. If the
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WALTERS v. FRAKES
Cite as 29 Neb. App. 315

[FTCA] is to be altered that is a function for the same
body that adopted it.”
374 U.S. at 165-66.
The Nebraska Supreme Court has long recognized that
the STCA is patterned after the FTCA. Johnson v. State, 270
Neb. 316, 700 N.W.2d 620 (2005). Based upon the similarity
between the language of the aforementioned provisions of the
FTCA and § 81-8,215 of the STCA, and the U.S. Supreme
Court’s guidance as it relates to facts similar to the case at bar,
we hold that the duty of care of the DCS’ prison guards in con-
nection with the reporting of medical complaints by inmates
as pled in this case did not facially violate the exception to the
general waiver of state tort liability found in § 81-8,215.

(b) Application of § 81-8,219(1)
The Appellees next argue that the prison guards’ duty here
is also excepted from the general waiver of state tort liability
under § 81-8,219(1). Again, although this was not raised as an
affirmative defense, and although the Appellees may not liti-
gate factual disputes relevant to the application of the STCA
for the first time on appeal, our court may determine whether
Walters’ allegations, taken as true, show that his tort claim is
facially barred by an STCA exception under § 81-8,219. See
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
As previously stated in this opinion, the Appellees assert
that Walters alleged the DCS’ prison guards breached their
duty of “‘care, skill, and knowledge ordinarily possessed and
used under like circumstances by other corrections depart-
ments engaged in similar care of similar inmates’” when they
failed to “‘immediately inform,’” “‘immediately contact,’”
and “‘accurately present [his] complaint’ to ‘prison medical
staff.’” Supplemental brief for Appellees at 4 (emphasis omit-
ted). The Appellees argue that the heart of Walters’ complaint
was inadequate communication by prison guards and staff-
ers to the medical staff. We agree with this summation of
Walters’ complaint.
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WALTERS v. FRAKES
Cite as 29 Neb. App. 315

In connection therewith, the Appellees argue that Walters’
articulation of the prison guards’ duty here sets forth the wrong
standard of care. In connection with that proposition of law,
the Appellees argue the proper standard of care is contained
within the provisions of the Nebraska Correctional Health Care
Services Act (NCHCSA). Specifically, the Appellees cite to
Neb. Rev. Stat. § 83-4,155 (Reissue 2014) of the NCHCSA,
which provides: “In administering health care services, the
department shall provide a community standard of health care
to all inmates.” “Community standard” is defined as “medi-
cal care of the type, quality, and amount that any individual
residing within the community in question could expect to
receive in that community.” Neb. Rev. Stat. § 83-4,154(1)
(Reissue 2014). Finally, the Appellees direct us to Neb. Rev.
Stat. § 83-4,157 (Reissue 2014) of the NCHCSA that outlines
the DCS medical director’s duties under the NCHCSA, which
include the following responsibilities:
(6) Develop and implement condition-specific medi-
cal treatment protocols that ensure compatibility with a
community standard of health care, including protocols
addressing the: (a) Treatment of gastrointestinal bleeds;
(b) detection and treatment of all communicable diseases;
(c) treatment of gender-specific problems; (d) treatment
of diabetes; (e) treatment of hypertension; (f) treatment of
headaches; (g) utilization of surgical procedures; (h) con-
trol of infection; (i) provision of dental care; (j) provision
of age-specific and gender-specific routine health mainte-
nance; (k) means by which inmates obtain access to health
care services; (l) use of prescribed drugs, devices, or bio-
logicals for the purpose of pain management; (m) referral
of patients to medical specialists not in the employ of the
department; and (n) initiation, observance, and termina-
tion of do not resuscitate orders initiated pursuant to the
Rights of the Terminally Ill Act.
(Section 83-4,157 was amended effective July 19, 2018, but
because the amendment took place after the relevant dates in
this case, the amendment does not apply to this appeal.)
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The Appellees then argue that “Walters’ complaint did not
allege that his health care or medical care breached the com-
munity standard of health care” and that “[a]ssuming for the
sake of argument that a breach of the community standard of
health care is a claim covered by the STCA, Walters did not
allege such a breach of duty for his tort claim” which failure
results in Walters’ not stating a cognizable claim against the
Appellees over which this court has jurisdiction. Supplemental
brief for appellees at 5. The Appellees then argue that the
prison guards’ specific duties here are a product of the medical
director’s protocols to be developed under § 83-4,157(6), that
such duties are subject to the discretionary function exception
found in § 81-8,219(1), and that the district court and this court
lack jurisdiction over the prison guards’ conduct in this particu-
lar case as pled.
The Appellees’ argument requires us to first examine the
proper standard of care associated with the prison guards’ acts
or omissions in this particular case. The Appellees argue that
the prison guards’ duties here are prescribed by § 83-4,155
of the NCHCSA, that is, that the guards were required to
provide a “community standard of health care” in administer-
ing health care services to Walters and that Walters failed to
plead or define that “community standard” in his pleading
or at trial. We disagree with the Appellees’ contention the
prison guards’ duty here is prescribed by § 83-4,155. Section
83-4,155 prescribes a duty of care for “administering health
care services.” The prison guards are not health care provid-
ers and can better be described in the prison system as being
involved in the process of ensuring inmates receive “health
care services” once requested. In that regard, although we
agree with the Appellees’ contention that “[t]he ‘heart’ of
Walters’ complaint was inadequate communication by guards
and prison staffers to the medical staff,” supplemental brief
for Appellees at 4, we recognize that those prison guards and
staffers are not medically trained personnel. As such, it would
make little sense to define their duties within that process as
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fitting within a “community standard of health care” under
§ 83-4,155. Instead, we believe the prison guards’ and staffers’
duties to communicate here, as part of the process of ensur-
ing inmates obtain access to medical care, is better described
by the Nebraska Supreme Court’s holding in Reiber v. County
of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019). In that case,
which involved a claim by the estate of a deceased inmate
against the county for its jail guards’ alleged failure to protect
an inmate from suicide, the court held:
The threshold issue in any negligence action is whether
the defendant owes a legal duty to the plaintiff. Here, the
parties do not dispute that prison officials owe inmates
a legal duty, and we agree. In Goodenow v. State, [259
Neb. 375, 381, 610 N.W.2d 19, 23 (2000),] we held that
the standard of care by prison officials to inmates is as
follows: “A jailer is required to exercise a degree of
care necessary to provide reasonably adequate protection
for his or her inmates.” What constitutes “‘reasonably
adequate protection’ . . . necessarily depends upon what
correctional officers knew or should have known about a
particular risk of injury before it occurred.”
Reiber, 303 Neb. at 337, 928 N.W.2d at 926.
Because we hold that the standard of care announced in
Goodenow v. State, 259 Neb. 375, 610 N.W.2d 19 (2000), is
properly reflective of the standard of care owed by the prison
guards to Walters in these circumstances, we disagree with the
Appellees’ contention that Walters failed to properly plead his
claim against DCS by failing to articulate a “community stan-
dard” of care. In short, Walters alleged that the DCS’ prison
guards breached their duty by failing to immediately report his
medical complaints to prison medical staff following his dis-
closures to them. That pleading properly captured DCS’ duty
here and created a fact issue for the trier of fact, which in this
case resulted in the district court’s determination that Walters
failed to meet his burden of proof.
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As it relates to the Appellees’ other claim, that the medical
director’s protocols to be adopted under § 84-4,157(6) govern-
ing access to health care services are discretionary in nature
and should preclude this suit under § 81-8,219(1), we cannot
make that analysis or determination on this record. As we stated
before, Walters properly pled a claim against DCS relating to
the general standard of care owed by prison officials to inmates
under these circumstances. If the medical director of DCS has,
in fact, issued protocols under § 83-4,157(6)(k), which further
define the prison guards’ specific duties for reporting medical
complaints, they were not offered by any party or made part of
this record.
[10,11] In determining whether the discretionary function
exception to the STCA applies, a court engages in a two-step
analysis. First, the court considers whether the action is a mat-
ter of choice for an acting employer. If the court concludes that
the challenged conduct involves an element of judgment, it
must then determine whether the judgment is of a kind that the
discretionary function was designed to shield. See Holloway v.
State, 293 Neb. 12, 875 N.W.2d 435 (2016). The discretionary
function exception extends only to basic policy decisions made
in governmental activity and not to ministerial activities imple-
menting such policy decisions. Id. It is obvious that without
reviewing the medical director’s specific protocols here, which
were not made a part of our record, we are unable to determine
whether the discretionary function exception applies. Under
these circumstances, where this matter is being raised for the
first time on appeal, and without a record as it relates to these
alleged protocols which may further refine the prison guards’
general duties here, we cannot say the district court or this
court lacks jurisdiction over Walters’ claim. On this record, this
argument fails.

2. Sufficiency of Evidence
Walters brought this claim against the Appellees alleging
that the Appellees were negligent in their failure to immediately
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report his medical claim, which resulted in delayed medical
care and permanent injury. Walters assigns that the trial court
was clearly wrong in holding that the DCS’ prison guards
and staffers did not breach their duty to provide medical care
to him.
[12] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plain-
tiff, a breach of such duty, causation, and damages. Hodson v.
Taylor, 290 Neb. 348, 860 N.W.2d 162 (2015).
Here, Walters specifically alleged in his complaint that the
government “had an obligation/duty to provide medical care
for [Walters]” and that the government breached that duty by
failing to inform medical staff of Walters’ nondissipating erec-
tion following his disclosures at 10 a.m. and 7 p.m. on July 8,
2015, and his disclosure the following morning at 4:10 a.m.
As we previously noted in this opinion, the prison guards’
general duty here was properly articulated by the Nebraska
Supreme Court in Reiber v. County of Gage, 303 Neb. 325,
337, 928 N.W.2d 916, 926 (2019), wherein the court held:
In Goodenow v. State, [259 Neb. 375, 381, 610 N.W.2d
19, 23 (2000),] we held that the standard of care by prison
officials to inmates is as follows: “A jailer is required to
exercise a degree of care necessary to provide reason-
ably adequate protection for his or her inmates.” What
constitutes “‘reasonably adequate protection’ . . . neces-
sarily depends upon what correctional officers knew or
should have known about a particular risk of injury before
it occurred.”
As it relates to this duty and application of the facts here, the
district court stated:
Through the course of . . . Walters’ testimony, the court
observed his communication skills, demeanor, physical
expression, language skills, and overall communication
skills. The ability to express oneself and willingness to
express conditions and circumstances is critical to the
decision in this case. In observing . . . Walters’ voice,
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actions, and descriptions of how he described his interac-
tions with [DCS] staff, it is clear that he was not com-
municating effectively. His body mechanics, the words
used, and the references he made to try and explain his
severe medical problem just simply were not enough
to convey his critical needs. During his testimony at
trial, those mannerisms, expressions, body movements,
and descriptive words were difficult to understand. . . .
Walters freely admits that he was not willing to openly
discuss his medical problems with [DCS] staff. He used
obtuse references and gestures rather than . . . direct and
clear descriptions. He never told [DCS] staff that he was
having an emergency. He never said that he had an erec-
tion that had lasted over the course of hours. His use of
“down there,” “groin pain,” or pointing toward his groin
while making facial expressions, as he did during trial,
does little to convey the nature and extent of the need
much less the urgency.
[13] In this case, neither party disputes that prison guards
and staffers have a duty to disclose medical complaints to
prison medical staff. Nor does anyone argue that the prison
guards and staffers failed to make those disclosures. The issue
here was based solely on the timing of those disclosures to
medical staff (i.e., approximately 21 hours after Walters’ origi-
nal complaint). Thus, the specific question here is whether the
delay in reporting Walters’ complaints amounted to a breach
of duty under the standard of care we articulated above. The
standard of care stated in Reiber turns on what the “‘“offi-
cers knew or should have known about the particular risk”’”
involved here. 303 Neb. at 337, 928 N.W.2d at 926. Stated
differently, the question is whether Walters’ complaints were
such that the prison officials should have known he was suf-
fering from an urgent or emergency condition, which involved
risk to Walters’ health and required immediate medical atten-
tion. The question of whether Walters’ communication of his
condition was sufficient to apprise the Appellees of a medical
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condition that involved a substantial risk to Walters’ health
and required more immediate reporting was a factual ques-
tion for the trier of fact. That fact was decided by the district
court in favor of the Appellees. In reviewing this finding, an
appellate court does not reweigh the evidence but considers
that finding in a light most favorable to the successful party,
here the Appellees, and resolves evidentiary conflicts in its
favor and provides the successful party with every reasonable
inference deducible from the evidence. See Reiber v. County of
Gage, supra. Further, an appellate court will consider the fact
that the trial court saw and heard the witnesses and observed
their demeanor and, therefore, will give great weight to the
trial court’s judgment regarding credibility. Steinauer v. Sarpy
County, 217 Neb. 830, 353 N.W.2d 715 (1984). Applying that
standard of review here, we cannot say that the district court
was clearly wrong in its factual determinations.
Here, the medical condition which afflicted Walters is
called priapism. The unrefuted testimony is that the condition
consists of a protracted erection of the penis which, if left
medically untreated within a period of 4 to 6 hours, may result
in permanent injury to the penis. The record indicates that
Walters appeared to have become afflicted with this condition
on the morning of July 8, 2015. The record also reveals that
Walters attempted to communicate with prison staff about the
subject of his condition at approximately 10 a.m., 7 p.m., and
10 p.m. on July 8, and then again at 4 a.m. on July 9 before
Walters received medical care. On July 8, during the three
conversations in which Walters attempted to communicate
his condition, Walters never stated that his medical problem
involved an erection or his penis. Instead, Walters subtly
referred to having pain associated with his “groin” and pointed
in the general direction of his groin. After reviewing Walters’
testimony and the specific evidence offered at trial, we hold
the district court was not clearly wrong in finding that there
was nothing about Walters’ description of his medical condi-
tion which would lead the prison guards or staffers to know
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or understand the specific nature of his condition or to infer
it was an emergency and that they did not breach their duty
of care by not reporting Walters’ complaints to prison medical
staff sooner.
In support of that finding, we agree with the district court
that Walters’ failures to openly and willingly discuss his spe-
cific medical condition and his obtuse references and gestures
to “groin pain” and “down there” did little to convey the nature
and extent of his condition, much less its urgency. We note that
even Dr. Rhodes, whom Walters called as an expert to describe
the nature of Walters’ condition, testified that Walters’ com-
plaints of “groin pain” would not elicit an emergency response
from him. Further, Walters acknowledged his understanding
of the prison’s grievance procedure that was available to him,
which he could have utilized to more specifically or discretely
disclose his situation as an emergency and which he opted not
to utilize on this occasion. Finally, Walters testified to a differ-
ent occasion where he experienced chest pains that he disclosed
to prison staff in a more descriptive and urgent way, which
resulted in an immediate medical response from the staff and
medical care providers. Taken together, the testimony estab-
lishes that Walters was aware of the processes available to him
to communicate a serious medical condition, that he formerly
successfully utilized those processes in obtaining help, and that
he simply failed to do so on this occasion. Notwithstanding
his understanding of those processes, Walters opted not to
descriptively communicate his medical condition here because,
as Walters explained, he was embarrassed to do so in front of
the other inmates, and he chose to discretely communicate the
nature of his condition which became progressively more pain-
ful and serious until he was first administered to on the morn-
ing of July 9, 2015.
We hold that, based upon the record, the district court did
not clearly err in finding that Walters’ communications to the
Appellees were not sufficient to place the Appellees on notice
that Walters was suffering from a medical condition, which
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involved an immediate and substantial risk to his health, and
that the DCS’ prison guards and staffers did not breach the
applicable standard of care by not more immediately reporting
Walters’ complaints to prison medical staff.

VI. CONCLUSION
In sum, for the reasons set forth herein, having determined
that the district court did not err in dismissing Walters’ com-
plaint against the Appellees, we affirm the order of the dis-
trict court.
Affirmed.