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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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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WIZINSKY v. STATE
Cite as 308 Neb. 778
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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
WIZINSKY v. STATE
Cite as 308 Neb. 778
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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WIZINSKY v. STATE
Cite as 308 Neb. 778
“[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.