Citing Progress, Advocates Close Nebraska Prison Overcrowding Case

Michael Bien, Ben Bien-Kahn, Ernest Galvan and Kara Janssen composed the RBGG legal team assisting with the Nebraska case that concluded on December 1.  The ACLU press release about the case is set out below.

Citing Progress, Advocates Close Prison Case

For Immediate Release
Dec. 1, 2020

LINCOLN, Neb. – The legal team for the prison lawsuit Sabata v. NDCS is closing the case after successfully negotiating dismissal terms with the state. The lawsuit challenged conditions in Nebraska’s overcrowded and understaffed prison system, arguing that Nebraskans were being harmed through prolonged isolation and a lack of critical health care and disability accommodations.

The joint dismissal, filed Monday, dismisses the case without prejudice, meaning plaintiffs retain the ability to refile the lawsuit. The dismissal also stipulates that each party will cover their own costs of litigation.

Partners include the ACLU of Nebraska, the ACLU National Prison Project, Nebraska Appleseed, the National Association of the Deaf, and the law firms DLA Piper and Rosen Bien Galvan & Grunfeld LLP.

The motion to dismiss comes after progress addressing the lawsuit’s concerns:

  • The Nebraska Department of Correctional Services (NDCS) closed the Nebraska State Penitentiary’s “South 40” solitary confinement unit after expert testimony called conditions in the unit among the worst in the nation.
  • The average daily population of people in solitary confinement has significantly decreased. A new state law diverts people from solitary confinement if they have a serious mental illness, are pregnant, are developmentally disabled, have a traumatic brain injury or are a minor.
  • Some plaintiffs in the case have moved back to the general population after long terms in solitary confinement.
  • Americans with Disabilities Act (ADA) policy changes took effect last month. They improved the request and appeal process, refined systems for identifying disabilities, and established explicit guidelines that should help end the practice of moving people with disabilities to more restrictive cells solely because there aren’t accommodations in less restrictive areas. NDCS is also creating ADA coordinator positions at each facility to ensure the law is being followed.
  • At least one of the named plaintiffs has received better access to American Sign Language interpreters.
  • NDCS adopted new policies related to mental health levels of care last year.
  • NDCS made significant changes to its dental policy, improving access by removing arbitrary barriers such as a requirement that people must be in custody for two years before they become eligible for dentures.

David Fathi, lead counsel on the case and director of the ACLU National Prison Project, said that although the court agreed there were serious issues in Nebraska’s prison system, its order denying class certification forced a change in strategy.

“The work doesn’t end here,” Fathi said. “It takes a new direction. Until Nebraska gets serious about reducing overcrowding, problems will continue to plague the prison system. From advocacy to legislation to litigation, this team will keep working to ensure fundamental rights don’t stop at prison walls.”