by Mick Collins, Editor at Large
Thomas Fleming was originally incarcerated, in 1987, for three counts of robbery. After nine months of parole in 1990, Fleming returned to Nebraska State Penitentiary for 15 to 30 years for armed robbery, during which time he wounded a prison guard during a botched escape attempt. As a result, he was placed in solitary confinement.
Fleming remained, effectively, in the most restrictive level of administrative confinement in the Nebraska State Penitentiary and at the Tecumseh State Correctional Institute from 1991 to 2004. Fleming's trial brief described his living conditions as follows. "Inmates are locked in a single cell, approximately 8' x 12', no chair, a concrete bed with a thin cotton batting mattress, a light on in the cell, dimmed at night, five hours per week for solitary exercise, showers three times a week, limited and restricted visitation once per week, behind glass and in full shackles, one fifteen minute telephone call per week, very limited commissary privileges and little or no access to any services."
Fleming claims that while in solitary, guards spat in his food, conducted excessive shakedowns, taunted him by slamming his metal "hatch" and goading him into stabbing a guard with a pencil that the guard had provided (Fleming did stab him), also that prison officials conducted "sham" reviews of his placement status every six months and that a placement adjudicator, who admitted to being a close friend of Fleming's victim referred to Fleming as an "animal". Specifically, Fleming claims he was kept "in the hole" for personal reasons and that he should have been returned to the general population in 1998 because, based upon the experience of another inmate who caused bodily harm during an escape, he expected to spend only seven or eight years in segregation.
Prison officials agree that around 1997 or 1998 Fleming's previously egregious behavior improved. From that time forward his conduct continued to substantively change for the better. His trial brief recounts "For eight years, he was a model prisoner, with a record as good [as] or better than the general population of inmates."
In 2003 Fleming filed an action alleging that several corrections employees had violated his constitutional rights. Shortly thereafter Fleming was returned to general population, without any official explanation.
On October 18, 2006 Judge Warren Urbom held that Fleming's treatment was not "cruel and unusual" punishment under the Eighth Amendment. (A pretrial order restricted all complaints to only Eight Amendment questions thus precluding the court from considering due process issues.)Judge Urbom noted in his opinion that "To establish an Eighth Amendment violation, a prisoner must show that the alleged deprivation, viewed objectively, is 'sufficiently serious' and that the prison officials' actions, viewed subjectively, demonstrate a 'deliberate indifference' to the prisoner's health or safety." Fleming's claim was rejected because "to the extent that the plaintiff claims that his twelve-year confinement in administrative segregation, in and of itself, amounted to a "sufficiently serious" deprivation ... There is simply no evidence that the basic conditions that the plaintiff experienced in administrative confinement, alone or in combination, "produce[d] the deprivation of a single, identifiable human need such as food, warmth, or exercise." Indeed Fleming was fed, kept warm and allow five hours per week to exercise alone in a small yard.
Fleming's lawyer, however, fears that this ruling too narrowly defines cruel and unusual punishment. In her own words, "[t]he ruling narrowly defined minimal life necessities as adequate food, clothing, shelter, medical care and personal safety ... Life's necessities are more than food, clothing, [and] warmth. We have a psychological need for exercise, fresh air, [and] meaningful contact with others... things not recognized by the law."