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Cole v. Clarke6/3/2003
(not designated for permanent publication)
INTRODUCTION
Frankie Levi Cole, an inmate, brought an action in the district court for Lancaster County against various prison employees, asserting claims for malpractice and an equal protection violation in relation to the denial of Cole's request to receive certain dental services. The district court granted the amended demurrer to Cole's third amended petition on the grounds that Cole's tort claim was barred by the State Tort claims Act, Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 1996 & Cum. Supp. 2002), because Cole's allegations related to the execution of a statute or rule and that Cole's third amended petition did not state facts sufficient to constitute a cause of action for an equal protection violation. The action was dismissed. For the following reasons, we affirm.
BACKGROUND
Cole's operative pleading, a third amended petition, was filed on April 16, 2001, and named as defendants Harold Clarke, the Department of Correctional Services (DCS) director; Frank X. Hopkins, the prison warden; Larry Tewes, the DCS associate director; Mary L. Cash, the prison dentist; John Doe dental technician, real name unknown; and Michael Kenney, who succeeded Hopkins as prison warden in October 1999. Cole alleged that he was denied certain dental care, specifically a filling and a crown, due to a DCS policy. The policy in question is stated at operational memorandum (OM) No. 115.007.102-IV(E)(6)(b)(2) and classifies services such as those requested by Cole as "cosmetic" in nature and thus not necessary or required under Nebraska law as part of the dental health care that the DCS must make available to prisoners. Cole claimed that he was told by Cash that he would receive the filling and the crown if he paid for the services in advance. Cole asserted that as a direct or proximate result of the actions or inactions of the defendants, he had suffered personal injury , including denial of necessary dental care that caused avoidable destruction to his teeth and associated pain, anguish, suffering, humiliation, embarrassment, and outrage.
Cole set forth two numbered paragraphs in the section of his petition labeled "Causes of Action." In his first "cause of action," Cole asserted that the DCS policy denies necessary dental care to poor prisoners, such as himself, while allowing prisoners with money to purchase the services, and thus violates his right to equal protection of the law as guaranteed by article I, § 3, of the Nebraska Constitution. Cole further alleged that this policy violates Neb. Rev. Stat. § 83-181 (Reissue 1999), which requires the DCS to provide regular medical and dental care to prisoners; "Nebraska statutes which specify standards for adequate and competent dental care by dental health care professionals practicing in the State of Nebraska"; and administrative code prohibitions against "staff imposed deterioration of prisoners' physical condition." In his second "cause of action," Cole claimed malpractice and resulting personal injury against Cash, under Neb. Rev. Stat. § 25-222 (Reissue 1995).
Cole sought "an order finding Nebraska Constitutional and/or State law violations" according to his stated "causes of action," an order restraining the defendants from continuing the "legally invalid act" of enforcing the dental health care policy complained of by Cole, compensatory damages, and such further relief as the court deemed just.
The record before us indicates that the parties initially disputed which defendants were actually before the court in relation to Cole's third amended petition. The bill of exceptions contains the transcribed proceedings from a hearing held o
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