Walters v. Frakes -- supplemental opinion

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 04/20/2021 08:07 AM CDT

- 740 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports WALTERS v. FRAKES Cite as 29 Neb. App. 740

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

Filed April 13, 2021. No. A-19-532.

supplemental opinion 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, Chief Judge, and Bishop and Welch, Judges. Per Curiam. This case is before us on a motion for rehearing filed by the appellee, State of Nebraska, concerning our opinion in Walters v. Frakes, 29 Neb. App. 315, 953 N.W.2d 831 (2021). We over- rule the motion, but we modify the opinion as follows. In the analysis section of the opinion under the heading “1. Jurisdiction,” and the subheading “(b) Application of § 81-8,219(1),” the sixth paragraph is withdrawn and substi- tuted with the following: Because we hold that the standard of care announced in Goodenow v. State, 259 Neb. 375, 610 N.W.2d 19 (2000), is properly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 circum- stances, we disagree with the Appellees’ contention that

- 741 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports WALTERS v. FRAKES Cite as 29 Neb. App. 740

Walters failed to properly plead his claim against DCS by failing to articulate a “community standard” 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 disclosures to them. That pleading created a fact issue for the trier of fact under the standard of care by prison offi- cials to inmates articulated in Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019), and Goodenow, supra, as set forth previously. In this case, the district court determined that Walters failed to meet his burden of proof. The remainder of the opinion shall remain unmodified. Former opinion modified. Motion for rehearing overruled.