Case: 1:20-cv-02134 Document #: 2 Filed: 04/03/20 Page 1 of 21 PageID #:70

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 20-cv-2134

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS THE FACTS THAT NECESSITATE THIS MOTION ..................................................................2
COVID-19 Presents a Lethal Threat to Detainees in the Cook County Jail. .......................2 The Jail Is Not Taking Remotely Sufficient Precautions; An Uncontrolled
Outbreak Is In Progress............................................................................................6 ARGUMENT ...................................................................................................................................9
B. Traditional Legal Remedies Are Inadequate; Plaintiffs Will Be Irreparably Harmed If Interim Relief Is Not Granted...............................................................12
2. The Balance of Harms and the Public Interest Favor a Temporary Restraining Order Requiring the Jail to Implement Constitutionally Sufficient Conditions .............................................................................................15
3. The Balance of Harms and the Public Interest Favor a Temporary Restraining Order Requiring Transfer of Subclass B Members to a Safe Facility or Other Form of Confinement .................................................................17
CONCLUSION ..............................................................................................................................18
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Defendant Sheriff Thomas J. Dart is currently confining close to 5,000 people in conditions within the Cook County Jail that threaten their lives. At the time of this filing, at least 167 detainees and 46 staff members in the Jail have tested positive for the novel coronavirus that causes COVID19—though the Sheriff has not updated that figure for several days. The Sheriff is not taking reasonable, appropriate measures to halt the further spread of this deadly virus, putting the lives and health of thousands of people in the Jail, and countless others in the community, at risk. The Due Process Clause of the United States Constitution forbids this.
Plaintiffs seek to represent the class1 of all individuals jailed by Dart, and two subclasses. Subclass A consists of all people who, because of age or previous medical conditions, are at particularly grave risk of harm from COVID-19. Subclass B consists of all people who are currently housed on a tier where someone has already tested positive for the coronavirus. Subclass A seeks immediate release through a petition for habeas corpus because there are no feasible conditions under which they may currently be constitutionally confined under present circumstances at the Jail; the entire Class seeks a temporary restraining order and preliminary injunction requiring Dart to implement constitutionally-sufficient procedures to protect their safety; and Subclass B seeks a temporary restraining order and preliminary injunction requiring Dart to remove or transfer them to a safe facility or other form of custody.
Because of the grave risk to health and life at stake, Plaintiffs request that this Court consider this motion on an emergency basis and that the Court grant a temporary restraining
1 Plaintiffs’ Motion for Class Certification is pending. Plaintiffs file this motion on behalf of the putative class members, but for ease of reference, describe them as “class members” throughout this brief. Although this is a prototypical case for which the class action vehicle was created, the Court need not rule on Plaintiffs’ class certification motion or formally certify a class in order to issue the requested emergency relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed.1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”). Slightly more than 100 people in the jail are serving sentences, and they are excluded from the Class.
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order requiring the release of Subclass A members pending briefing and argument. On April 3,
2020, counsel for Plaintiffs gave notice of their intent to file this lawsuit and motion to General
Counsel for the Cook County Sheriff's Office, as well as the Division Chief and Supervisor of
the Special Litigation Section, and the Division Chief of the Complex Litigation Division, of the
Cook County State's Attorney's Office.
As the supporting declarations attached to the Complaint make clear, this is a matter of life
and death. Each hour that passes risks Plaintiffs’ lives. Absent immediate action by this Court,
some Plaintiffs likely will face the ultimate irreparable harm: death.
THE FACTS THAT NECESSITATE THIS MOTION COVID-19 Presents a Lethal Threat to Detainees in the Cook County Jail.
Lives have been upended around the world by the unprecedented health emergency caused
by the rapid spread of COVID-19. The disease is highly contagious; it spreads through respiratory droplets or by touching a surface or object that has the virus on it.2 There is no known cure, and development of a vaccine is likely at least 12 months away.3 On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic.4 On March 13, President Trump declared a national emergency.5 Illinois Governor J.B. Pritzker has declared Illinois to be in a state of disaster and has imposed a statewide shelter in place order.6
2 Dr. Michael Puisis, Dr. Robert Cohen, Dr. John Raba, Dr. Sergio Rodriguez, and Dr. Ron Shansky, Declaration of Medical Professionals Concerned about the Spread of COVID-19 in the Cook County Jail (hereinafter Puisis et al.) (Attached as Exhibit A to the Complaint, ECF 1.) (“Puisis et al.”) ¶¶ 22-24.
3 Saralyn Cruickshank, Experts Discuss Covid-19 and Ways to Prevent Spread of Disease, John Hopkins Mag. (Mar. 17, 2020), https://hub.jhu.edu/2020/03/17/coronavirus-virology-vaccine-social-distancing-update.
4 World Health Organization, Director-General Opening Remarks (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid19--1 1-march-2020.
5 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID19 ) Outbreak (Mar. 13, 2020) https ://www.whitehouse.gov/presidential-actions/proclamation -declaring-nationalemergency-concerning-novel-coronavirus-disease-covid-l9-outbreak/.
6 Executive Order In Response to COVID-19 (COVID-19 Executive Order No.8), https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf; Illinois’ Stay-at-Home Order
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The Centers for Disease Control and Prevention (CDC) urgently recommend the following
practices to prevent the spread of infection: (1) wash hands with soap and water “often,” especially
after being in a public place; (2) use hand sanitizer that contains at least 60% alcohol to disinfect
hands when soap is not immediately available; (3) clean and disinfect frequently touched surfaces
daily, and (4) employ “social distancing”–that is, avoiding contact with others as much as possible
and keep at least a six-foot distance from others.7 Governor Pritzker’s “shelter in place” order
makes social distancing mandatory and violations can be punished criminally; it closes public
schools, closes nonessential businesses, and bans groups of more than 10 people.8
As the declarations submitted in support of the class action complaint make clear, none of
the critical measures for mitigating the spread of COVID-19 is available for persons confined in
the Cook County Jail. The Jail is a congregate environment, in which people are confined in close
proximity to one another and to Jail staff.9 Rigorous hygiene, as urgently recommended by the
CDC, is virtually impossible in facilities packed with thousands of inmates who share an touch
doors, tables, dinner trays, and numerous other surfaces. Many of those detained—those in
Subclass A—suffer from underlying health conditions, including, among many others, asthma,
diabetes, and hypertension, that place them at elevated risk for contracting and dying from
Extended Through April, Pritzker Announces, NBCChicago (Mar. 31, 2020) https://www.nbcchicago.com/news/local/illinois-stay-at-home-order-expected-to-be-extended-sources/2247274/
7 How to Protect Yourself, Centers for Disease Control (Mar. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html; see also sources cited supra notes 1 & 2.
8 Grace Hauck, These states are ordering residents to stay home or shelter in place. What does that mean? (Mar. 23, 2020), https://www.usatoday.com/story/news/nation/2020/03/21/coronavirus-lockdown-orders-shelterplace-stay-home-state-list/2891193001/ (discussing measures taken in Michigan; South Carolina; Massachusetts; Indiana; Kentucky; Delaware; Louisiana; Ohio; California; New York; Illinois; Connecticut; Oregon; New Jersey; Dallas County, Texas; Philadelphia, Pennsylvania; Atlanta, Georgia; and Saint Louis County and Kansas City in Missouri).
9 See Dr. Michael Puisis, Dr. Robert Cohen, Dr. John Raba, Dr. Sergio Rodriguez, and Dr. Ron Shansky, Declaration of Medical Professionals Concerned about the Spread of COVID-19 in the Cook County Jail (hereinafter Puisis et al.) (Attached as Exhibit A to the Complaint, ECF 1.) (“Puisis et al.”) ¶¶ 23-24. The highest known person-to-person transmission rate for COVID-19 to date took place in two other congregate environments: a skilled nursing home facility in Kirkland, Washington, and on afflicted cruise ships in Japan and off the coast of California.
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COVID-19.10
Dr. Michael Puisis, the former Medical Director of the Cook County Jail, and his
colleagues—Cook County correctional experts, Dr. Robert Cohen, Dr. John Raba, Dr. Sergio
Rodriguez, and Dr. Ron Shansky—explained that the risk posed by COVID-19 in jails and prisons
is significantly higher than in the community, both in terms of risk of transmission, exposure, and
harm to individuals who become infected. See Dr. Michael Puisis, Dr. Robert Cohen, Dr. John
Raba, Dr. Sergio Rodriguez, and Dr. Ron Shansky, Declaration of Medical Professionals
Concerned about the Spread of COVID-19 in the Cook County Jail (hereinafter Puisis et al.)
(Attached as Exhibit A to the Complaint, ECF 1.) (“Puisis et al.”) ¶¶ 22-24. This is due to a number
of factors, including, among others, the inability to engage in social distancing inside the jail, the
inability to isolate and manage known and suspected cases of COVID 19, and the endemic
problems of hygiene and sanitation that universally plague contemporary U.S. jails and prisons,
and the Cook County jail in particular. Id.11
As a result of these realities, the CDC has issued Guidance on the Management of COVID
10 See Detainee declarations submitted in support of the Class Action Complaint; see also Are You at Higher Risk for Severe Illness?, Centers for Disease Control (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html.
11 See also Detainee declarations submitted in support of the Class Action Complaint; Matthew Impelli, Alcohol-Free Sanitizer Given to Prisoners to Prevent Them from Making ‘Moonshine,’ Newsweek (Mar. 16, 2020), https://www.newsweek.com/alcohol-free-sanitizer-given-prisoners-prevent-them-making-moonshine-1492523 (reproducing comments of Sherif Sultan, president of the International Society of Vascular Surgery); Jennifer Gonnerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients from Coronavirus, New Yorker (Mar. 20, 2020), https://www.newyorker.com/news/news-desk/a-rikers-island-doctor-speaks-out-to-save-her-elderlypatients-from-thecoronavirus?fbclid=IwAR3Uv1Cu5RjQdbpdPHPiYjUQPHUnm0O5Ky6Hhg3N27rDlCypA73S8VypEg; Amanda Klonsky, Opinion, An Epicenter of the Pandemic Will Be Jails and Prisons, If Inaction Continues (Mar. 16, 2020), https://nyti.ms/3d4c4uY. “The pathway for transmission of pandemic influenza between jails and the community is a two-way street. Jails process millions of bookings per year. Infected individuals coming from the community may be housed with healthy inmates and will come into contact with correctional officers, which can spread infection throughout a facility. On release from jail, infected inmates can also spread infection into the community where they reside.” Pandemic Influenza and Jail Facilities and Populations, American Journal of Public Health, October, 2009; see also Dr. Anne Spaulding, Coronavirus and the Correctional Facility: for Correctional Staff Leadership, Mar. 9, 2020, https://www.ncchc.org/filebin/news/COVID_for_CF_Administrators_3.9.2020.pdf.
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19 in Correctional and Detention Facilities, specifying steps that must be taken in light of the “unique challenges for control of COVID 19 transmission” that are present in correctional and detention settings.12 These steps include, among many others, specified actions to ensure sanitation of frequently touched surfaces, the provision of protective gear to staff and to infected persons, screening of those entering the facility, isolation of those with COVID-like symptoms, and quarantine of those who are known to be infected. Id. The Guidelines state that “adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility.” Id.
These steps are by no means the equivalent of the precautions recommended for those in the free community. They are the bare minimum that must be done to prevent a severe outbreak of contagion within the Cook County Jail. The Guidelines recognize the well-known facts that options for medical isolation of COVID-19 patients are “limited” in a carceral setting and the ability to sanitize is compromised. Id.
These realities are particularly frightening for members of Subclass A, who are vulnerable, at elevated risk of contracting serious COVID-19, and who may suffer acute, painful symptoms or death. These realities are underscored by the supporting declarations filed with the Complaint. Moreover, an outbreak within the Jail cannot be confined to those incarcerated there. Jails are not—and cannot become—isolated facilities. Each day, jail staff, including corrections officers, social workers, medical staff, and administrative personnel, enter the facility, touch detained individuals or surfaces which detained individuals have touched, and return home to their families and communities. A sudden influx of serious coronavirus cases from the Jail risks overwhelming Cook County’s public hospital. The outbreak in the Jail cannot be contained. It puts us all at risk.
12 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
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The Jail Is Not Taking Remotely Sufficient Precautions; An Uncontrolled Outbreak Is In Progress. There is an escalating public health emergency in the Cook County Jail. COVID-19 diagnoses have skyrocketed within a matter of days. By Monday, March 23, two detainees and one staff member within the Jail were known to be infected. As of the filing of this motion, on April 3, 2020, there are 167 known infections.13 The graph below14 displays this grim reality:
The number of known infections will continue to rise. Indeed, there are likely now many more infections in the Jail than are known because of the limited availability of COVID-19 tests, and medical staff to administer temperature checks that can detect symptoms of the diease.
13 This number has almost certainly been surpassed; the Sheriff’s Department has not updated data of its testing since April 1, 2020. 14 Injustice Watch, Cook County Jail population and COVID-19 tracker, https://datastudio.google.com/u/0/reporting/1AI4THiXJ_6Nt9NXwE0MfO_DUaa1Koxi/page/hcyJB?s=oQGghs5nYPk (“CCJ COVID-19 Tracker”) (last visited April 3, 2020).
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Hundreds of detainees are being quarantined, with a number of suspicious cases almost equal to the number of confirmed, positive cases. Puisis et al. ¶ 29 Staff are also falling ill. In less than two weeks, reported, known cases of corrections staff infection have ballooned from one to 46, as the graph above also shows. See CCJ COVID-19 Tracker. As infections continue to rise in the Jail, the CDC guidance is being ignored and chaos is reigning, as set forth in the accompanying Complaint.
First, the Jail is failing in its responsibility to enable social distancing. In contravention of the terms of the Governor’s “shelter-in-place” order, the Jail continues to house detainees in dormitory-style settings and in double cells where detainees are in close physical contact with one another. Complaint, ECF 1 ¶¶ 15, 35. Dayrooms and other congregate areas are open and are in use. Id.¶ 35. Many detainees are using common showers, common toilets and common sinks—if not with the entire tier, then with a cellmate. Id. A group of prominent Illinois doctors with extensive individual and collective experience in corrections medicine puts the problem this way:
At a time when the President's task force on COVID-19 recommends limiting gatherings to no more than 10 persons, the President has declared a national emergency and there is a stay-at-home order in Illinois through at least April 30, 2020, the County of Cook is forcing over 4,700 people to live in congregate living conditions at the Cook County Jail with a continuing influx of new inmates every day. These inmates intermingle and it is not possible to attain the President's aim of limiting gatherings of less than 10 individuals or engage in social distancing. This is contrary to the President’s recommendation, the Illinois stay-at-home order, and to current public health recommendations. These circumstances are likely to result in spread of disease. Puisis et al. ¶ 23. There are also multiple reports that the Jail’s system for quarantine and medical isolation is flawed. For example, one detainee reports that, after a detainee who had tested positive for COVID-19 was removed from his tier for medical isolation, that person’s cellmate was rehoused on the tier with another detainee. Complaint, ECF 1 ¶ 35. Detainees uniformly report that, when
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a detainee who is symptomatic or who has tested positive for COVID 19 is removed from a tier, no measures are taken to quarantine the others on the tier who were exposed. Id. Others report that their division is in quarantine, and yet detainees continue to share bathroom and shower areas, and common living areas. Id.
Second, the Jail has no functioning system to enable prisoners to protect themselves from exposure. Corrections staff in the Jail now wear masks, but there are no masks available to the detainees, a precaution that, under these congregate living conditions and with many known COVID infections, is essential. Puisis et al. ¶ 31. The Jail’s aging physical plant is unsanitary and detainees have no ability to mitigate filthy conditions. There are no cleaning supplies to use to disinfect the common showers, common sinks and common toilets that detainees to continue to use. Complaint, ECF 1 ¶ 35. Soap and hand sanitizer are unavailable for many, if not the majority, of those confined in the Jail. Id.
In this face of this dysfunction, COVID-19 will continue its unrelenting spread through the Jail. Under accepted standards of medical care and the CDC Guidance, quarantine will be necessary for greater and greater numbers of detainees. As this happens, it will become more and more difficult to separate those who are infected (or might be infected) from those who are not. Puisis et al. ¶ 17. Necessary monitoring of the temperature and other symptoms of those who are or are suspected to be infected will become overwhelming. To the extent that medical management of these quarantined individuals is not already impossible, it will become so. See id. ¶ 16.
All of these problems are magnified by the risks to the health and safety of medical workers in the Jail, which will limit the Jail’s ability to manage and monitor those who are in quarantine and those in medical isolation. Puisis et al. ¶ 18. As the virus spreads and healthcare staff are increasingly infected, Cook County’s public healthcare system will be stretched to breaking. The
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Jail has limited facilities for isolating and caring for acutely ill detainees. By the Jail’s report, 14 detainees have already been transferred to Stroger Hospital with serious COVID-19. The urgent necessity of focusing on the spread of COVID-19 and the treatment of those who are infected has limited the Jail’s ability to provide medication and other needed treatment to non-COVID patients. Puisis et al. ¶ 18. If immediate action is not taken, many detainees and jail staff may die as a result.
The dire state of affairs in the Jail is underscored by the declarations submitted on behalf of class members and the named Plaintiffs, see Complaint, ECF 1. These detail the prevalence of life-endangering conditions in the Jail, in different tiers and divisions, where detainees face: exposure to COVID-19 positive or symptomatic detainees, lack of cleaning supplies, sanitizing agents and even basic soap, lack of personal protective equipment (PPE), inability to engage in social distancing or indeed any distancing in dorm and double-celling living quarters with shared shower and bathroom areas, a lack of adequate medical care, including for detainees with symptoms of COVID-19, and a lack of clean shared living spaces. It is further solidified by the descriptions of the Jail’s inadequate response to the pandemic, in a letter submitted by counsel for a class of jail employees in an unrelated matter to Sheriff Dart, attached as Exhibit C to the Complaint.
ARGUMENT In this case, Plaintiffs seek three forms of immediate relief. Subclass A, the elderly and the medically vulnerable, seek immediate release from the chaotic, infectious Jail environment through a writ of habeas corpus. Their lives depend on how quickly they are released from that environment. The Class as a whole seeks an order requiring the Jail to at least adhere to the CDC Guidance on the management of COVID-19 in jails and correctional settings, and to provide such other relief set forth in the Medical Professionals’ declaration, Puisis et al. ¶¶ 27-37. Subclass B seeks transfer to a safe environment.
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To determine whether a party is entitled to a preliminary injunction or temporary restraining order, “a district court engages in an analysis that proceeds in two distinct phases: a threshold phase and a balancing phase.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1085–86 (7th Cir. 2008). To meet the threshold standard, a party must show that (1) “it will suffer irreparable harm in the interim period prior to final resolution of its claims,” Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir.2001); (2) “traditional legal remedies would be inadequate,” Girl Scouts, 549 U.S. at 1086; and (3) “its claim has some likelihood of succeeding on the merits,” id. Once these threshold requirements are met, the court “must somehow balance the nature and degree of the plaintiff’s injury, the likelihood of prevailing at trial, the possible injury to the defendant if the injunction is granted, and the wild card that is the ‘public interest.’” Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir. 1986). Courts in the Seventh Circuit employ a “sliding scale” approach to weigh these interests: “The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984).
Where circumstances are such that even the time needed to hear a request for a preliminary injunction is too long to prevent irreparable harm, a temporary restraining order (T.R.O.) may issue while a court considers a request for a preliminary injunction. See Charles Alan Wright, et al., Temporary Restraining Orders, 11A Federal Practice and Procedure § 2951 (3d ed. 2019). Where, as here, the opposing party receives actual notice of the request for a T.R.O., the procedure courts follow does not differ from an application for a preliminary injunction, and no special procedural requirements apply. Id.; see also Budget Rent A Car Corp. v. Harvey Kidd Automotive, 249 F. Supp. 2d 1048, 1049 (N.D. Ill. 2003).
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A. Plaintiffs Have a Likelihood of Success on the Merits of Their Claim That the Conditions in Which They Are Being Confined Are Unconstitutional.
The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits the Government from treating the medical needs of incarcerated people with deliberate indifference, Estelle v. Gamble, 429 U.S. 97, 103–04 (1976), and from exposing incarcerated individuals to conditions of confinement that threaten their health and safety, Helling, 509 U.S. at 33. The Eighth Amendment, however, does not apply to pretrial detainees because they may not be punished at all. See Bell v. Wolfish, 441 U.S. 520, 535 (1979); Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (noting that civil detainees “have not been convicted of a crime and thus may not be punished in any manner— neither cruelly and unusually nor otherwise”). Instead, pretrial detainees are protected by the Due Process Clause of the Fourteenth Amendment, which, the Supreme Court has held, affords them at least as much protection as the Eighth Amendment does. See City of Revere, 463 U.S. at 244. Because they have not been convicted of a crime, and accordingly may not be punished at all, they are not required to show that their jailers act with a culpable state of mind, see also Miranda v. County of Lake, 900 F.3d 335, 354 (7th Cir. 2018); they must only show that they are being deprived of objectively reasonable medical care, id.
All detainees, pretrial or otherwise, have a right to be housed safely. That right is violated if they are “incarcerated under conditions posing a substantial risk of serious harm,” and their jailers’ “state of mind,” at least for convicted detainees, “is one of ‘deliberate indifference’ to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Specifically, the Supreme Court has held that prison authorities are liable if they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering.” Helling, 509 U.S. at 33. Detainees may not constitutionally be exposed to a severe risk of contracting a communicable
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disease. Gates, 501 F.2d at 1291 (cited with approval in Helling, 509 U.S. at 34); see also Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (noting that “exposure of inmates to a serious, communicable disease . . . can qualify [as a] deprivation . . . [that is] sufficiently serious; ); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect inmates from infectious disease.”); Lareau v. Manson, 651 F.2d 96, 109–11 (2d Cir. 1981).
This is not a complicated case on the law. Plaintiffs are being exposed to extreme and unprecedented risk of infection and death because of the failure of the Cook County Jail to meet the most minimal public health standards. Plaintiffs are being exposed to extreme and unprecedented risk of infection and death because of the failure of the Cook County Jail to meet the most minimal public health standards. Every person detained in the Cook County Jail under the chaotic conditions that prevail and where the applicable CDC Guidance is being ignored and disregarded will likely succeed on the merits of their Due Process claim.
B. Traditional Legal Remedies Are Inadequate; Plaintiffs Will Be Irreparably Harmed If Interim Relief Is Not Granted. The need for immediate relief to prevent irreparable harm could not be more clear. Plaintiffs allege injuries that are irreparable and, therefore, not suitable for resolution in the ordinary course of litigation. Girl Scouts, 549 U.S. at 1086. Injuries do not get more paradigmatically irreparable—that is any more truly beyond repair—than death. Additionally, people who contract the coronavirus may develop symptoms that are acutely painful and may result in permanent, irreparable lung damage. Class Action Complaint, ECF 1 ¶ 9. Courts across the country, accordingly, have recognized that risk of exposure to the coronavirus constitutes an irreparable harm. See infra at 14-15 (collecting cases granting emergency release to people who are exposed to coronavirus). Plaintiffs easily allege irreparable harm.
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C. The Balance of Relative Harms and the Public Interest Favor Each of the Three Forms of Relief Plaintiffs Are Requesting.
Each of the three forms of relief that the Plaintiff class seeks aims to limit the spread of
COVID-19 to the Class. The Jail is not an isolated environment. It cannot be contained or
separated from the community at large. Uncontrolled infection within the Jail therefore risks the
health and safety of every person connected directly or indirectly to the many correctional
officers, healthcare workers and other necessary staff who enter and leave the Jail environment
on a daily basis. Therefore, any remedy that will protect the Plaintiff class benefits the wider
community and serves the public interest.
1. The Balance of Harms and the Public Interest Favor Release of the Vulnerable Detainees in Subclass A.
The members of Subclass A all have conditions that render them exceptionally vulnerable
to death or serious harm if exposed to COVID-19. Because of their medical vulnerability, there is
no practicable way to ensure that they receive reasonable medical treatment15 within the jail and,
therefore, their continued detention violates the Constitution and they must be released pursuant
to a writ of habeas corpus under 28 U.S.C. 2241.16
15 As explained above, Plaintiffs needs not show that Dart acted with deliberate indifference to their needs. But regardless they easily could. There can be no dispute that Dart is aware that an uncontrolled outbreak is threatening his jail and that people within it may die imminently as a result. Moreover, he has ignored his clear authority under the Illinois County Jail Act to remove detainees whose physical health was in jeopardy to a suitable place in his custody, including home confinement or electronic monitoring. See 730 ILCS § 125/14.
16 Subclass A members bring this action under 28 U.S.C. § 2241 and Article I, Section Nine of the United States Constitution. They, therefore, need not satisfy the heightened requirements of § 2254. Because they have not been convicted of a crime and are not in custody “pursuant to the judgment of a state court,” they may bring this action under § 2241 and need not bring this action under § 2254, which governs habeas petitions challenging state criminal convictions. Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) (“‘[T]he general grant of habeas authority in § 2241 is available for challenges by a state prisoner who is not in custody pursuant to a state court judgment—for example, a defendant in pre-trial detention . . . .’” (quoting White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004)). Section 2254’s heightened standards of review, therefore, do not apply to this case. Id. at 888; Phillips v. Court of Common Pleas, Hamilton County, Ohio, 668 F.3d 804, 809 (6th Cir. 2012) (“We have long recognized that pretrial detainees pursue habeas relief . . . under § 2241.”); Martinez v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011); Walck v. Edmondson, 472 F.3d 1227, 1234–35 (10th Cir. 2007); Gonzalez v. Justices of Mun. Ct. of Boston, 382 F.3d 1, 6–7 (1st Cir. 2004), judgment vacated on other grounds, 544 U.S. 918 (2005); Atkins v. Michigan, 644 F.2d 543, 546 & n.1 (6th Cir. 1981).
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Subclass A members face a heightened risk of contracting a deadly virus merely because they are incarcerated, and additionally they face a heightened risk of dying if they do. Older people and those with underlying medical conditions, such as lung disease, heart disease, or diabetes, are more likely to develop serious illness.17 Class Action Complaint, ECF 1 ¶ 7; Puisis et al. ¶ 27. The number of cases and deaths from COVID-19 is increasing exponentially. This exponential growth is straining the health care system, which is struggling to care for the current and imminent influx of serious COVID-19 patients. An outbreak in the jail will spread rapidly and further strain health care resources, resulting in a “catastrophic loss of life,”18 making it more likely that even people who may have ordinarily recovered from the virus will die.19
As a practical matter, there is no way to constitutionally confine Subclass A members in the jail under present conditions. Puisis et al. ¶¶ 23-25. Although it is in theory possible for a jail to implement the social-distancing, sterilization, and other protective practices that the CDC requires in a jail, because Subclass A members are so vulnerable to death and serious injury from the disease, there is no time for those measures now. This reality is underscored by the declarations on behalf of detainees filed in support of the Complaint. And regardless, as explained below and in the contemporaneously filed Complaint, Dart has woefully failed to implement those procedures to date. Subclass A members, then, are jailed in conditions that will inevitably threaten their lives at least in the near term. They must be removed from those conditions.
For these reasons, in recent weeks courts across the country have granted emergency
17 World Health Organization, Q&A on coronaviruses (COVID-19) (Mar. 9, 2020), https://www.who.int/news-room/q-a-detail/q-a-coronaviruses.
18 Ex. A. 19 Sarah Kliff, There Aren’t Enough Ventilators to Cope With the Coronavirus (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/business/coronavirus-ventilator-shortage.html; Austin Frakt, Who Should Be Saved First? Efxperts Offer Ethical Guidance (Mar. 24, 2020), https://www.nytimes.com/2020/03/24/upshot/coronavirus-rationing-decisions-ethicists.html.
14

Case: 1:20-cv-02134 Document #: 2 Filed: 04/03/20 Page 17 of 21 PageID #:86
habeas petitions ordering the release of medically vulnerable people from confinement. See, e.g., Francisco Hernandez v. Wolf, 20-cv-617 (TJH), Dkt. No. 17 (C.D. Cal., Apr. 1, 2020); Thakker v. Doll, No. 20-cv-480 (JEJ), Dkt. No. 47 (M.D. Pa, Mar. 31, 2020) (“Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.”); Fraihat v. Wolf, 20-cv-590 (TJH), (C.D. Cal., Mar. 30, 2020) (“This is an unprecedented time in our nation’s history, filled with uncertainty, fear, and anxiety. But in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings.”); Castillo v. Barr, 20-cv-605 (TJH)(AFM), Dkt. No. 32 (C.D. Cal. Mar. 27, 2020); Coronel, 2020 WL 1487274; Basank v. Decker, 20-cv-2518 (AT), Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”); Ronal Umana Jovel v. Decker, 12-cv-308 (GBD), Dkt. No. 27 (S.D.N.Y. Mar. 26, 2020).
2. The Balance of Harms and the Public Interest Favor a Temporary Restraining Order Requiring the Jail to Implement Constitutionally Sufficient Conditions
The Class seeks a temporary restraining order requiring the Jail to immediately comply with the CDC Guidance for managing detention and correctional facilities. In particular, the Jail must immediately:
• Acquire rapid testing for COVID-19 in adequate supply to ensure that all who enter
15

Case: 1:20-cv-02134 Document #: 2 Filed: 04/03/20 Page 18 of 21 PageID #:87
the facility with the coronavirus can be quickly identified and medically isolated. • Quarantine all new detainees until test results become available or, if testing cannot
be done, for 14 days, unless they become symptomatic. • Medically isolate all detainees who are positive for COVID-19 in a controlled,
monitored environment in which they are not at risk for infecting others. • Quarantine all detainees who are symptomatic and/or have been exposed to a
confirmed case of COVID-19 in a controlled monitored environment for the appropriate time period where they are not at risk for infecting others. • Provide adequate medical staff to monitor all detainees within the Jail who are in medical isolation or under quarantine. • Provide sufficient soap and hand sanitizer to all detainees so that detainees may frequently wash their hands. • Provide masks to all detainees. • Provide instruction to all staff and to all detainees regarding the importance of regularly sanitizing all surfaces and objects on which the virus could be present. Provide the soap and cleaning materials to enable this sanitizing, and supervise to ensure that sanitizing takes place between all uses of such surfaces and objects. • Mandate social distancing of detainees such that each is not at risk of exposure. All Class members are currently at imminent risk of death or serious injury from exposure to the coronavirus, and they are accordingly entitled to relief imminently. If this litigation is decided in the ordinary course, many Class members may die before final judgment is entered, and countless others will suffer severe pain or permanent lung damage. Class members are highly likely to succeed on their claims because Dart, as his own staff members confirm, is knowingly
16

Case: 1:20-cv-02134 Document #: 2 Filed: 04/03/20 Page 19 of 21 PageID #:88
exposing Plaintiffs to a severe risk of harm. See March 31, 2020 Letter from Marni Willenson, Caitlin Cervenka, Matthew J. Piers, Caryn Lederer, Cyrus Mehri, Ellen Eardley, and Michael D. Lieder to Thomas J. Dart and Toni Preckwinkle (hereinafter “March Letter) (Attached as Exhibit C to the Complaint).
These steps are neither more nor less than what is required to mitigate the spread of COVID-19 within the Jail. Because the Jail is not an isolated environment—infections within the Jail can and will spread beyond the Jail’s walls—implementing these steps is essential to mitigate the spread of the coronavirus and serves the public interest.
The monetary cost of implementing these necessary changes may be significant, but those costs, whatever they might be, pale in comparison with the cost in human suffering and loss of life that will surely occur if the changes are not made and made immediately. And the requested relief promotes the interests of the Sheriff’s office: his own employees are crying out for it as well. Id.
3. The Balance of Harms and the Public Interest Favor a Temporary Restraining Order Requiring Transfer of Subclass B Members to a Safe Facility or Other Form of Confinement
The whole Class in this case requests a preliminary injunction requiring the implementation of reasonable sanitation procedures designed to keep them safe. But for people who are housed in an environment already exposed to COVID-19, those procedures will be insufficient. Once there is known exposure in a residential environment, it must be emptied and deep cleaned. Therefore, Subclass B members—who are housed in already exposed environments—must be transferred immediately, either to their homes or to another, safe environment, and may not be returned to their current tiers until those tiers have been sanitized to prevent the spread of coronavirus. See, e.g., Plata v. Brown, No. 01-cv-1351, 2013 WL 3200587, at *8 (N.D. Cal. June 24, 2013) (granting motion requiring transfer from area at high risk of coccidioidomycosis, known as “Valley Fever”).
17

Case: 1:20-cv-02134 Document #: 2 Filed: 04/03/20 Page 20 of 21 PageID #:89
CONCLUSION For the foregoing reasons, this Court should grant Subclass A’s petition for writs of habeas corpus and should grant the Class’s and Subclass B’s requests for a temporary restraining order or a preliminary injunction requiring the Jail to comply with the United States Constitution.
Respectfully submitted, SIGNATURES /s/ Alexa Van Brunt Counsel for Plaintiffs Alexa Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue Chicago, IL 60611 (312) 503-1336
18

Case: 1:20-cv-02134 Document #: 2 Filed: 04/03/20 Page 21 of 21 PageID #:90 CERTIFICATE OF SERVICE
I, Stephen Weil, an attorney, hereby certify that on April 3, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on General Counsel for the Cook County Sheriff's Office, as well as the Division Chief and Supervisor of the Special Litigation Section, and the Division Chief of the Complex Litigation Division, of the Cook County State's Attorney's Office via email.
/s/ Alexa Van Brunt Alexa Van Brunt
19

 
 Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 1 of 30 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 1:20-cv-2134

CLASS ACTION COMPLAINT REPRESENTATIVE PETITION FOR HABEAS CORPUS

Plaintiff ANTHONY MAYS and Plaintiff JUDIA JACKSON, the next friend of Kenneth

Foster, by their undersigned attorneys, for their complaint against defendant THOMAS DART,

Sheriff of Cook County, allege as follows:

INTRODUCTION

1. A rapidly escalating public health disaster is unfolding behind the walls of the Cook

County Jail (the “Jail”). In the 11 days since March 23, the number of confirmed cases of COVID-

19, the disease caused by a deadly coronavirus for which there is no vaccine and no cure, has risen

from one to at least 167. A total of 46 corrections staff are also known to have COVID-19. These

numbers will continue to rise dramatically because of the circumstances alleged in this complaint.

2. The Jail, which is operated under the supervision of defendant Thomas Dart, the

Sheriff of Cook County, has failed in its constitutional responsibility to the persons detained there

to provide reasonable protection against the further spread of this deadly disease. Social distancing

within the Jail is currently impossible because the Jail is a crowded, congregate environment in

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 2 of 30 PageID #:2
which some 4,700 individuals are detained, in dual cell or dorm quarters. The Jail has repeatedly failed and continues to fail to separate persons known to have been exposed to COVID-19 from other detainees. Sanitation of surfaces and objects that are frequently touched by the infected and the not-yet-infected is non-existent. Personal hygiene is impossible because detainees do not have soap or hand sanitizer. These conditions violate applicable guidance of the Centers for Disease Control and Prevention (the “CDC”) and ensure the continued rapid, uncontrolled spread of COVID-19 within the Jail and beyond—because the Jail is not and cannot be isolated from the larger community.
3. This is a representative action on behalf of the class of persons who are detained in the Jail and, because of the failings of Defendant Dart and his staff, are facing unreasonable and unnecessary risks of exposure to the coronavirus, possible serious respiratory illness, and death.
4. Included in the class are persons at elevated risk for contracting serious COVID-19 and dying from the disease because they are elderly and/or have underlying health issues, such as asthma, other chronic respiratory problems, kidney problems or hypertension, among others. The risks to these vulnerable people from remaining in the chaotic and infectious environment that reigns within the Jail are unacceptable. This group cannot, under current conditions, receive reasonable medical care or protection from COVID-19 within the Jail. They must be released because, within the time frame that would be necessary to improve safety, they would suffer irreparable harm and are therefore jailed in violation of the Constitution of the United States.
JURISDICTION AND VENUE 5. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and 2241(a). This Court has jurisdiction over Subclass A’s petition for a writ of habeas corpus under 28 U.S.C. § 2241.
2

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 3 of 30 PageID #:3

6. Venue is proper in this District under 28 U.S.C. § 1391(b) because the events giving rise to the claims asserted in this complaint occurred in this District.
PARTIES 7. Plaintiff-Petitioner Anthony Mays is a detainee in Cook County Jail. He has diabetes and had been referred for an evaluation of a heart condition when COVID-19 hit the jail. He is housed in Division 8, in an open-dormitory setting. Multiple detainees on his tier have been removed after testing positive for COVID-19. 8. Plaintiff-Petitioner Kenneth Foster is a detainee at Cook County Jail. This action is brought on Mr. Foster’s behalf by his next friend, Judia Jackson. Ms. Jackson is aware of Mr. Foster’s wishes with respect to this action. Ms. Jackson is serving as next friend because the undersigned counsel attempted to contact Mr. Foster by telephone within the Cook County Jail, but were unable to do so due to the Jail’s operational difficulties arising out of the COVID-19 pandemic. See Declaration of Alison Horn (Ex. A). Mr. Foster has stomach cancer, LungSarcoidosis, high blood pressure, asthma, and bronchitis. He is living in a dorm setting in Division 2. Mr. Foster estimates that five or six people from his tier have tested positive for COVID-19. The people who tested positive for the virus were removed from the dorm. 9. Defendant-Respondent Thomas J. Dart is the Sheriff of Cook County, Illinois. He is sued in his official capacity.
FACTUAL ALLEGATIONS A. The COVID-19 epidemic is a global health emergency.
10. The coronavirus that causes COVID-19 has reached pandemic status according to the World Health Organization (“WHO”). In only a few months more than one million people worldwide have been diagnosed with COVID-19, and nearly 60,000 of those people have died.1

1

https://www.worldometers.info/coronavirus/ (last visited April 3, 2020).

3

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 4 of 30 PageID #:4
In the United States alone, as this complaint is being filed, there are hundreds of thousands of confirmed cases and over six thousand deaths.2 The number of confirmed COVID-19 cases has grown, and is expected to grow, exponentially. The CDC projects that without swift and effective public health interventions, over 200 million people in the U.S. could be infected with COVID-19 over the course of the epidemic, with as many as 1.7 million deaths.3 As of April 2, there were more than 7,695 confirmed cases of COVID-19 in Illinois, up from just 20 on March 18, 2020. Of these, 157 people have died.4
B. COVID-19 is a highly contagious and lethal disease. 11. COVID-19 is a particularly contagious disease. The virus can survive for up to
three hours in the air, as an aerosol, and can be directly transmitted by inhalation to other individuals in close proximity. Droplets can also land on surfaces and be picked up by the hands of another person who can then become infected by contacting a mucous membrane (eyes, mouth, or nose) with their hand. COVID-19 can survive four hours on copper, up to twenty-four hours on cardboard, and up to two to three days on plastic and stainless steel.5 A recent study of an early cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect transmission

2

Coronavirus Disease 2019 (COVID-19): Cases in U.S., Centers for Disease Control and Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-

us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-in-us.html

(last visited April 1, 2020).

3

Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times, (Mar. 13, 2020),

https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html

4

http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus (last

visited April 3, 2020).

5

Dr. Michael Puisis, Dr. Robert Cohen, Dr. John Raba, Dr. Sergio Rodriguez, and Dr. Ron Shansky,

Declaration of Medical Professionals Concerned about the Spread of COVID-19 in the Cook County Jail

(hereinafter Puisis et al.) (Ex. B) ¶ 11.

4

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 5 of 30 PageID #:5

resulting from infected people contaminating common surfaces such as the communal mall bathroom in the study.6
12. Controlling the spread of COVID-19 is even more difficult because of the prominence of asymptomatic transmission—i.e., transmission by people who are contagious but who exhibit limited or no symptoms. This poses enormous challenges to control of spread, because it renders ineffective any screening tools dependent on identifying disease symptoms.7
13. Older adults face greater chances of serious illness or death from COVID-19. Certain underlying medical conditions increase the risk of serious COVID-19 disease for people of any age—including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, and developmental delay.8 The WHO-China Joint Mission Report indicates that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.9
14. For people who are older or with medical conditions that increase the risk of serious COVID-19 infection, symptoms such as fever, coughing and shortness of breath can be especially

6

Cai J, Sun W, Huang J, Gamber M, Wu J, He G. Indirect virus transmission in cluster of COVlD-19 Cases,

Wenzhou, China, 2020. Emerg Infect Dis. 2020 Jun. (https://wwwnc.cdc.gov/eid/article/26/6/20-0412_article) (last

visited Mar. 31, 2020).

7

Puisis et al. ¶¶ 12; Johnny Milano, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, New

York Times, https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html (last visited

April 1, 2020) Graham Lawton, You Could Be Spreading Coronavirus Without Realising You’ve Got It, New

Scientist March 24, 2020 (https://www.newscientist.com/article/2238473-you-could-be-spreading-the-coronavirus-

without-realising-youve-got-it/) (last visited Mar. 31, 2020).

8

Puisis, et al. ¶ 27.

9

Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health

Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/who-china-joint-

mission-on-covid-19-final-report.pdf

5

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 6 of 30 PageID #:6

severe. In a February 29, 2020 WHO-China Joint Mission Report, the preliminary mortality rate analyses showed that individuals age 70-79 had an overall 8% mortality rate, individuals age 6069 had a 3.6% mortality rate, and individuals age 50-59 had a 1.3% mortality rate. Increasingly, and in the United States in particular, even some younger and healthier people who contract COVID-19 will require hospitalization for supportive care, including intravenous fluids and supplemental oxygen.10
15. Patients who eventually die do so of multiple organ failure, shock, acute respiratory distress syndrome, heart failure, arrhythmias, and renal failure.11 For those who survive serious COVID-19, recent clinical evidence indicates that the virus may cause damage to organs such as the heart, the liver, and the kidneys, as well as to organ systems such as the blood and the immune system.12 This damage can be so extensive and severe that it may be enduring.13 Among other things, patients who suffer severe symptoms from COVID-19 end up having damage to the walls and air sacs of their lungs, leaving debris in the lungs and causing the walls of lung capillaries to thicken so that they are less able to transfer oxygen going forward.14 Indeed studies of some recovered patients in China and Hong Kong indicate a declined lung function of 20% to 30% after recovery.15

10

Puisis et al. ¶ 10.

11

Tianbing Wang et al., Comorbidities and multi-organ injuries in the treatment of COVID-19, The Lancet,

https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30558-4/fulltext (March 21, 2020).

12

Tianbing Wang et al., Comorbidities and multi-organ injuries in the treatment of COVID-19, The Lancet,

https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30558-4/fulltext (March 21, 2020).

13

George Washington University Hospital, GW Hospital Uses Innovative VR Technology to Assess Its First

COVID-19 Patient https://www.gwhospital.com/resources/podcasts/covid19-vr-technology (last visited April 1,

2020)

14

https://health.clevelandclinic.org/heres-the-damage-coronavirus-covid-19-can-do-to-your-lungs/

15

https://www.dw.com/en/covid-19-recovered-patients-have-partially-reduced-lung-function/a-52859671

6

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 7 of 30 PageID #:7

16. A high percentage of people in higher risk categories who develop COVID-19 will need advanced supportive care requiring highly specialized equipment that is in limited supply, and the dedicated attention of an entire team of care providers, respiratory therapists, and intensive care doctors.16 This level of support can quickly exceed local health care resources.
17. There is no vaccine or known cure for COVID-19. No one is immune, nor is there any known medication to prevent or treat infection. In this setting, the only known methods to reduce the risk for vulnerable people of serious illness or death from COVID-19 are to prevent infection through social distancing and rigorous hygiene, including washing hands frequently with soap and water.
18. The measures required to accomplish this prevention effectively are extreme. The CDC and other public health agencies have universally prescribed social distancing—every person should remain at a distance of at least six feet from every other person—and rigorous hygiene— including regular and thorough hand washing with soap and water, the use of alcohol-based hand sanitizer, proper sneeze and cough etiquette, and frequent cleaning of all surfaces—as the only ways to meaningfully mitigate the spread of this virus.17
19. The CDC has issued a guidance that gatherings of more than 10 people must not occur.18 People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by the

16

https://jamanetwork.com/journals/jama/fullarticle/2763879

17

Coronavirus Disease 2019 (COVID-19): How to Protect Yourself, CDC,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-

ncov%2Fprepare%2Fprevention.html (last visited Mar. 29, 2020).

18

Interim Guidance for Coronavirus Disease 2019 (COVID-19), Guidance as of 3/15/2020,

https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-gatherings-ready-for-covid-19.html (last

visited Apr. 1, 2020).

7

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 8 of 30 PageID #:8

rapid spread of the virus in cruise ships and nursing homes. The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of the infection is unknown.19
C. Incarcerated People Are Particularly Vulnerable to COVID-19. 20. None of the recommended measures for mitigating the spread of COVID-19 are
available for persons confined in correctional facilities and for those who must interact with them. Jails are designed to be, and operate as, congregate environments, where the priority is security— not medical quarantine.20 Many people live in dormitory-like sleeping arrangements. They have limited freedom of movement and no control over the movements of others with whom they are required to congregate on a daily basis. It is impossible to achieve the CDC’s social distancing standard in these settings.21 Infectious diseases, particularly airborne diseases such as COVID-19, are more likely to spread rapidly between individuals in correctional facilities.22
21. The risk of contracting an infectious disease is also higher in correctional facilities because the facilities are not sanitary environments. People share toilets, sinks, and showers, and often have limited access to soap, hand sanitizer, hot water, and other necessary hygiene items. Jails are a warren of metal doors and surfaces that are touched by dozens, and sometimes hundreds, or correctional staff and detainees every day. Surfaces are infrequently washed, if at all, and cleaning supplies are in short supply.23 Activities that free citizens can perform on their own, like

19

Coronavirus Disease 2019 (COVID-19): How Coronavirus Spreads,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 1,

2020).

20

Puisis et al. ¶¶ 16, 23-24

.

21

Id., ¶ 25.

22

Id., ¶¶ 23-25.

23

Id., ¶ 25.

8

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 9 of 30 PageID #:9
eating, are entirely different in the correctional setting: food, dishes, utensils, cups and trays pass through numerous hands on the way to the detainee.
22. The people who live in these environments—environments that defy all current public health standards—are themselves at significant risk of death from COIVD-19 due to the high rates of chronic health conditions, substance use, mental health issues, and aging and chronically ill populations who may be vulnerable to more severe illnesses, and to death, after infection from COVID-19.24 Prisoners are unusually vulnerable to stress-related and communicable diseases. Formerly incarcerated persons suffer higher rates of certain kinds of psychiatric and medical problems. Incarceration leads to higher rates of morbidity (illness rates) and mortality (i.e., it lowers the age at which people die).
23. Health profiles of incarcerated people show that they are significantly sicker and more vulnerable to COVID-19 than the population at large:

Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), www.prisonpolicy.org/blog/2020/03/06/pandemic/

24

Id., ¶ 27.

9

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 10 of 30 PageID #:10
24. Jail health units are not equipped with sufficient emergency medical equipment, such as oxygen tanks, negative pressure rooms, and oxygen face masks, to respond to an outbreak of patients with respiratory distress. For these reasons, among others, experts have warned that, “widespread community transmission of COVID-19 within a correctional institution is likely to result in a disproportionately high COVID-19 mortality rate.”25 While Cook County Jail has a dedicated health unit, that unit ultimately relies on outside community hospitals to provide more advanced and intensive medical care, and during an epidemic, this will not be possible, as those outside facilities become at or over capacity.26
25. Jails, furthermore, are not closed environments. By necessity, members of the free community, including correctional officers, social workers, attorneys, medical personnel, and many others must enter and leave jails on a daily basis. Staff arrive and leave each facility three times a day in large numbers, and there is no current, in-place ability to adequately screen staff for new, asymptomatic infection. In addition, new detainees are admitted into jails every day, many of whom may be asymptomatic and thus not flagged for quarantine, even with robust intake screening procedures. When the COVID-19 virus occurs and spreads within a jail, all persons, staff and prisoners alike, are at heightened risk of contracting the virus and, in turn, spreading the virus to others with whom they come in contact in their own homes and neighborhoods.27

25

“COVID-19 in Correctional Settings: Unique Challenges and Proposed Responses” (March 23, 2020),

https://amend.us/wp-content/uploads/2020/03/COVID-in-Corrections-Challenges-and-Solutions-1.pdf;

see also “Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions,"

Health Affairs Blog, March 26, 2020, available at:

https://www.healthaffairs.org/do/10.1377/hblog20200324.784502/full/

26

Puisis et al. ¶ 18.

27

Id. ¶ 27.

10

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 11 of 30 PageID #:11
26. It is virtually impossible, in short, to prevent an extremely contagious disease like COVID-19 from entering a jail and infecting the population there.
D. Cook County Jail is a COVID-19 Accelerator 27. The danger COVID-19 poses to correctional facilities generally is even more in
evidence at Cook County Jail. Each of the statements in paragraphs 20 through 26, supra applies with full force to the Cook County Jail.
28. Local community groups have amplifying the acute danger that COVID-19 posed to Cook County Jail since early March.28 The Circuit Court rejected requests from the Cook County Public Defender to issue mass orders freeing low-level detainees and those who were in detention solely because they could not afford their money bonds, instead requiring individual bond hearings for each person who might be released. That review was expedited for detainees whose court of charge was the 2600 South California Avenue complex, but no such expediting orders were issued for detainees whose court of charge were the multiple Circuit Court locations in the Chicago suburbs.
29. The upshot of these measures has led to the release of approximately 800 detainees from the Jail since March 20, 2020. Those measures, however, have left more than 4,700 detainees in the Jail at the time of this filing. And, as set forth below, the Jail has demonstrably failed to protect these thousands of individuals from COVID-19.
30. Cook County Jail is one of the largest single-site jails in the United States. In addition to its 4,700 detainees, it is served by hundreds of staff who enter and leave the facility in three different shifts every day.

28

https://chicagobond.org/2020/03/06/people-should-be-released-from-cook-county-jail-to-support-public-

health-during-coronavirus-outbreak/

11

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 12 of 30 PageID #:12 31. Throughout the course of a person’s detention, the Jail subjects people to one
congregate setting after another, as the ensuing publicly-available photographs make clear Those congregate settings begin on intake, when new detainees are housed together in bullpens or similar environments, presenting a ready opportunity for the spread of the virus:
32. Many of the units housing the largest numbers of detainees are congregate settings as well, in which social distancing is not a remote possibility. The photographs below depict one of several tiers in Division 2 of the jail (in which several of the detainees whose declarations are attached hereto reside), and which houses a large portion of the jail’s detainees:
12

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13

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33. The situation is similar in the Jail’s Residential Treatment Unit (“RTU”), where medically vulnerable detainees are housed:
14

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34. Notably, the RTU also contains numerous mentally ill detainees, who make up a substantial portion of the Jail’s population.29 Mentally ill prisoners are particularly vulnerable, among other reasons, because they may not have the wherewithal to inform jail staff that they feel ill.30
35. Detainees are surrounded not only by other detainees, but also numerous hard surfaces that, if touched, can host COVID-19 for hours. Such areas are the only places where detainees can sit, eat, and perform any number of basic functions that persons in the free world can perform in social isolation. Indeed, the Jail is a warren of doors, sally ports, showers, bathrooms, and various other surfaces that are constantly being touched by jail staff and by detainees all day, every day; COVID-19 can survive on such surfaces for days. And as the supporting declarations make clear, the shared communal areas within the divisions are still in daily use.
E. The Jail is not effectively preventing the spread of COVID-19. 36. Inside accounts from Jail staff, detainees, and Cermak medical personnel paint a
picture of an unfolding disaster. 37. Detainees are housed in congregate settings. To combat the spread of COVID-
19, the Sheriff’s Office has implemented quarantine protocols. As Dr. Michael Puisis, the former Medical Director of the Cook County Jail, and his colleagues—Cook County correctional experts, Dr. Robert Cohen, Dr. John Raba, Dr. Sergio Rodriguez, and Dr. Ron Shansky—explain, however, these protocols are insufficient and unsustainable as currently implemented:
Inmates are still being admitted into Cook County Jail. New inmates are being quarantined. Known or suspicious cases of COVID-19 require isolation from others.

29

https://www.motherjones.com/crime-justice/2019/01/chicagos-jail-is-the-one-of-the-countys-biggest-

mental-health-care-providers-heres-a-look-inside/

30 Puisis et al. ¶ 21. 15

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However, the housing units are not set up for mass quarantine or isolation. The jail was built with security in mind not medical isolation or quarantine. For purposes of quarantine, the jail is cohorting groups of incoming inmates into tiers for a period of time. Because inmates continue to be incarcerated in the Jail, invariably, this will result in a significant portion of the jail dedicated to quarantine. It is recommended that quarantine continue for 14 days. If any individual in the cohort becomes COVID-19 positive, the entire group is again quarantined again for another 14 days. As the number of persons in quarantine grows, managing them clinically becomes insurmountable and will result in failure to manage. Puisis et al. ¶ 16 (footnote omitted).
38. In layman’s terms, because the jail is replete with congregate settings—open
dormitories and tiers where the persons who are likely to have been infected are cheek by jowl
with those who might not be—“[i]ncreasingly it is becoming difficult to separate suspect infected
persons from the uninfected[,] and therefore infections will rise.”31 Indeed, Dr. Puisis and his
colleagues explain, this failure to contain infected detainees is demonstrated in the explosion of
coronavirus infections, from 1 to nearly 200 confirmed cases in 11 days.32
39. The opinion of Dr. Puisis, Dr. Shanksy, Dr. Raba, Dr. Cohen and Dr. Rodriguez is
confirmed by facts on the ground. Ample evidence shows that a large percentage of detainees
continue to be housed in tightly packed dormitories or similar conditions where the virus can
spread easily.
40. On March 31, counsel for a class of jail employees in an unrelated matter wrote a
lengthy letter to Sheriff Dart.33 Among other things the letter explains that:
● People arriving at the Jail’s intake unit are being placed in crowded “bull pens” and open dorms, not single cells. Such bullpens and dormitories, which are depicted above,

31

Puisis et al. ¶ 17.

32

Id.

33

March 31, 2020 Letter from Marni Willenson, Caitlin Cervenka, Matthew J. Piers, Caryn Lederer, Cyrus

Mehri, Ellen Eardley, and Michael D. Lieder to Thomas J. Dart and Toni Preckwinkle (hereinafter “March Letter)

(Ex. C).

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facilitate the spread of the virus, as the Puisis et al. declaration makes clear.
● Incarcerated peoples were moved off a tier to reduce occupancy on that tier to one person per cell--but they are being moved to Division 2, which has dormitory style bunks. The type of Division 2 dormitory bunking, which is depicted in photographs above, makes social distancing impossible.
● The Sheriff opened a “boot camp” building to quarantine other detainees. Nobody in the boot camps is housed in single cells, however; instead it is a dormitory setting that leaves detainees to be housed with infected people.34
● Even in situations where detainees are not housed in dormitories, they are not isolated, either. To the contrary, officers assigned to multiple housing divisions report that people are still double or even quadruple bunked.
41. The March 31 staff letter is consistent with accounts of detainees, set forth in the declarations filed in support of this action, who are or were housed throughout the Jail, and who report crowded, dormitory conditions throughout the facility. These detainees report that, in addition to the packed settings, detainees are essentially powerless to practice adequate hygiene or social distancing. The declarations submitted on behalf of the detainees make clear that all are at risk of exposure to COVID-19 positive or symptomatic detainees, all lack access to adequate cleaning supplies and sanitizing agents, all lack any form of personal protective equipment (PPE), none are able to engage in social distancing or indeed any distancing in dorm and double-celling living quarters with shared shower and bathroom areas, and all lack adequate medical care, including for those detainees with symptoms of COVID-19.35 In particular:

34

Puisis et al. also opined that the boot camp had “insufficient jail medical staff to staff this unit which is in

part or in whole staffed by individuals from the Cook County Health and Hospital System’s ambulatory centers

which are now closed.” Puisis et al. ¶ 18.

35 The information in this complaint that is specified as originating from interviews of detainees in the Jail is supported by the additional declarations of Sean Alexander (Ex. L hereto); Christopher Zeigler (Ex. M hereto); Aish Ayyash (Ex. N hereto); Darnell Singelton (Ex. O hereto); Edward Reed (Ex. P hereto); Erica Petty (Ex. Q hereto); Michael Clark (Ex. R hereto); Raymond Sanchez (Ex. S hereto); Tyneshia Perkins (Ex. T hereto); and Rafael Ortiz
17

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● Anthony Mays is 38 years old. He has diabetes and had been referred for an evaluation of a heart condition when COVID-19 hit the jail. He is housed in Division 8, in an opendormitory setting. The dormitory has beds that are paced two feet apart. There are approximately 40 beds on Mr. Mays’ tier, and it is full (“packed”). Mays estimates that only two of the beds are empty. Declaration of Anthony Mays (Ex. D).
● Vincent Stewart has Hodgkin’s Lymphoma, and his white blood count is currently 33% of the normal rate. Mr. Stewart is housed in Division 8, in an open dormitory setting. Everyone in the dormitory must share the same microwave for cooking food. He has been given no additional cleaning or sanitizing products since the outbreak of COVID-19 in Illinois and in the Jail. He states that detainees are not given any personal protective equipment. Affidavit of Matthew McLoughlin on Behalf of Shirley Stewart for Vincent Stewart (Ex. E).
● Kenneth Foster is 39 years old. He resides in Division 2. Mr. Foster has stomach cancer, Lung-Sarcoidosis, high blood pressure, asthma and bronchitis. He is living in a dorm setting in Division 2. He sleeps on a lower bunk. Everyone on his tier sleeps very close together. Everyone on Mr. Foster’s tier shares a shower and bathroom area. Everyone is together all the time and there is very little privacy. Five or six people from Mr. Foster’s dorm have tested positive for COVID-19. The people who tested positive for the virus were removed from the dorm. Affidavit of Christina Lorenzo on Behalf of Judia Jackson for Kenneth Foster (Ex. F).
● Sharita Parks is 35 years old. She is housed in Division 8, in an open-dormitory setting. The other detainees on her tier sleep close to her, and all the women on the dormitory share a bathroom and shower area, as well as a common eating area. One woman in the tier tested positive for COVID-19, and was removed from the dorm. Affidavit of Christina Lorenzo on Behalf of Crystal Smith for Sharita Parks (Ex. G).
● Charles Wimberly is 22 years old. He has bronchitis. Mr. Wimberly is housed in Division 6. He shares a cell with another cellmate. The detainees in the division have a shared shower area. Mr. Wimberly does not have access to soap. He has not received hand sanitizer in over a week. He states that the Jail does not provide personal protective equipment to detainees. Mr. Wimberly uses his shirt to cover the phone, because staff are not cleaning the phones. Affidavit of Christina Lorenzo on Behalf of Jala Burns for Charles James Wimberly (Ex. H).
● Carver Young was housed in Division 2 until he was released from the Jail on March 26. His tier was a large dormitory room, shared with 350 to 400 other people. They spent all day in the same room. Bunks in Division 2 were approximately a foot apart. There were about 30 showers, 11 or 12 toilets, and 4 large sinks with 3 hoses on each sink shared by all the men. At the time he left, each detainee received one small bar of soap per week.
(Ex. U hereto), see also Testimony from Inside Cook County Jail about the Conditions and Needs of Incarcerated People (Ex. V hereto).
18

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Other than some officers wearing masks, he did not see changes to procedure relating to COVID-19. Declaration of Carver Young (Ex. I).
● Terrance Robinson is 26 years old and residing in Division 6. He suffers from bronchitis and symptoms that include a fever and scratchy throat. Despite those symptoms, he is still co-living with a cellmate. Division 6, where he resides, is on lockdown because it is in quarantine. Two men in the division got sick with the virus. Both were transferred off the deck. Mr. Robinson does not know what happened to them. Declaration of Christina Lorenzo on Behalf of Mary Robinson for Terrance Robinson (Ex. J).
● Brandon Mathis is 26 years old. He resides in Division 11 with a cellmate. Mr. Mathis was previously shot in the throat, and his throat was reconstructed, making it hard for him to breathe. He had open heart surgery when he was a child. He suffers from blood clots and swelling in his feet. Social distancing is not possible in the division. All detainees are close together when they are in the common room, on the phones, or in the dayroom. Mr. Mathis has not been tested for COVID-19 but he has started to feel sick. He feels hot and like he cannot breathe, and suffers headaches. Declaration of Christina Lorenzo on Behalf of Andjine Doret for Brandon Mathis (Ex. K).
42. The Jail’s medical staff is being depleted by COVID-19. COVID-19 has a high
rate of infection among medical staff who care for coronavirus patients, which appears to be
depleting ranks of medical staff at the Jail.36 What is more, COVID-19 patients require intensive
care and attention from skilled medical staff to ensure that they remain stable, which taxes
available staff even further.37
43. The Jail’s medical staff is so diminished that medical personnel have no ability to
monitor detainees. This has meant that detainees in non-quarantined environments cannot be
monitored and caught early should they become symptomatic. Even detainees on quarantined tiers
have been largely abandoned. While Division 6 has been quarantined—as reported by multiple
detainees—and though the Division hosted one of the first detainees to have tested positive with
COVID-19,38 detainees there do not report increased testing or even temperatures being taken

36

Puisis et al. ¶ 18

37

Id.

38

https://news.wttw.com/2020/03/23/2-detainees-cook-county-jail-test-positive-covid-19

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within the facility. Corroborating this account, detainees report that their tiers no longer have sick call slips, with the effect that visibly sick detainees have no way to report their illnesses to medical personnel.39
44. That is confirmed by the March 31 staff letter. Staff report that “neither the Sheriff’s Office nor Cook County Health is conducting regular temperature checks on incarcerated people to identify those with symptoms of COVID-19.” Detainees in the quarantine tiers are not being monitored or having their temperature taken because there are not enough nurses to do so. Without any infection control, these “quarantines” are really just incubators of the infection and are rapidly spreading the disease.
45. Additionally, with so few medical staff, the existing health staff employees—i.e., those dealing with sick detainees—must travel all over the facility to carry out their duties, potentially spreading the illness from one division to another. Indeed, to make matters worse, the March 31 letter reports that many of these employees do not have access to N95 masks, increasing their chances of infection and further raising the risk that they will infect other staff and incarcerated people, spreading the infection even further.
46. The Jail does not have sufficient personal protective equipment. Because there are still so many detainees to oversee, a large number of staff are needed throughout the Jail complex. And there is not enough personal protective equipment (“PPE”) to go around. N95 masks are being rationed among officers, and those officers who do have PPE are being limited to one mask per shift. Other officers have been given surgical masks and told to store them in plastic bags for reuse, and many officers have no masks at all. Staff who work on quarantine units, meanwhile, are given more protective equipment, but they are told to re-use it or have it

39

Affidavit of Stephen Weil on Behalf of Anthony Mays.

20

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“sanitized”—even when the equipment is specified as single-use. There is no indication that such single-use protective equipment can be effectively sanitized, particularly for a new and little understood virus.
47. And as the supporting declarations make clear, on information and belief, no detainees have access to any PPE, even if they are symptomatic.
48. The Jail has not been able to provide basic hygiene. The Sheriff also has not trained all its staff in mitigating the spread of COVID-19. Staff report that “Officers have not been trained on how to teach incarcerated people to properly disinfect showers, bathrooms, common spaces in housing units that numerous people and employees come into contact with, or their own cells. Officers also uniformly report that the Sheriff’s Office has not provided them with additional disinfectant or other cleaning supplies to sanitize their own workspaces or other surfaces in the facility that numerous employees come into contact with. Employees report that cleaning supplies that used to be available, including disinfectant wipes, have disappeared. In addition, multiple employees report the reuse of dirty rags without proper disinfection.”
49. Correctional staff have not been trained to avoid spreading the disease. With so many staff still needed to operate the jail, there evidently have not been enough time or resources to train them. The March 31 staff letter reports that “[c]orrectional personnel have not been trained on how to protect themselves from contracting or spreading COVID-19.” Staff have not been trained either in protecting themselves or the people incarcerated, how to disinfect the various surfaces in the jail that are touched by incarcerated people and staff constantly, or how to safely dispose of the minimal personal protective equipment that they have been provided.
50. This failure to train is acute. It includes correctional staff assigned to the quarantined tiers housing people who have tested positive for COVID-19. Having received no
21

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training in how to avoid transmission, these staff routinely exit the COVID-19 quarantines and cross-contaminate passageways, work areas, and other parts of the Jail.
51. The Jail cannot stop corrections staff from importing the virus. COVID-19 poses a particular threat because a person can be entirely asymptomatic, yet spread the disease to others. The drastic social distancing measures that have been imposed across the country are designed to combat precisely this problem—staying at home, we are able to limit our contact with other persons, even those who are asymptomatic. But every day hundreds of jail employees, working on three different shifts, travel into and out of the jail. Any one of those employees can be carrying—and transmitting—COVID-19, and Sheriff Dart has candidly admitted he has no means of stopping this disease vector.
52. But the Sheriff has failed to take even modest measures to cut back on the transmission. The March 31 letter also reports that, apparently due to a lack of medical staff, temperature checks are not being performed on all staff entering the jail, either. Indeed, a number of employees assigned to the Jail’s health facility report that they were not checked at all. And the March 31 letter reports that while some temperature checks appear to have begun on staff entering some facilities, they are being done with industrial temperature “guns” that are specifically marked as “not for use on humans or animals,” indicating the Sheriff simply lacks the capacity to conduct testing.
53. In so many words, the Jail has failed, in plenary fashion, to implement basic measures that will prevent the COVID-19 pandemic from sweeping through the facility.
F. COVID-19 is overrunning the Cook County Jail. 54. That catastrophe, indeed, has arrived. On March 22, the first Cook County
Department of Corrections employee tested positive for COVID-19. On March 23, the first
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incarcerated person tested positive. That was eleven days ago. Officially, as of this filing 46 Jail staff have tested positive, while 167 detainees have tested positive. That “attack rate”—that is, the rate at which the population is being infected—is a double-digit multiple of the rate in Cook County.
55. Put differently, the Cook County Jail has shown itself to be a powerful accelerator of COVID-19. The Jail’s detainees, and its staff, are all drawn from Cook County. In Cook County, the current COVID-19 infection rate is .87 per 1,000 people. The rate of infection inside the jail on the other hand, is 35.45 per 1,000 people—40 times the infection rate of the surrounding population.
56. If anything, however, these figures dramatically undercount the rate of infection. Staff and detainees alike report that hundreds of detainees still live in congregate dorms where little or no preventative testing is being done to identify and remove sick detainees. Moreover, as Dr. Puisis and his colleagues set forth, the logic of “quarantine” in such settings is simply unsustainable40; the Jail, rather, is quickly reaching a the point where it will be forced to house detainees suffering from COVID-19 in open, close settings with hundreds of other people, leaving this highly contagious disease to spread freely and rapidly in the population. And given the serious ailments that many detainees already suffer from, there is every reason to expect that numerous detainees at the Jail will die if they are not released immediately. The Sheriff has ceased updating daily information on the number of infected detainees at the Jail. The last update of the infection count occurred on April 2.
57. The Sheriff has the authority to address these conditions. But he has intentionally failed to use it to protect the lives of those in the Jail. Under the Illinois County Jail Act, 730 ILCS
40 Pusis et al. ¶ 16. 23

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§ 125/14, when the Sheriff, as the Warden of the Jail, believes “the lives or health of the prisoners are endangered,” he has the authority to “remove” a “group of prisoners… to some suitable place within the county… where they may be confined until they can be safely returned to the place whence they were removed.” This statutorily-created authority, in effect since 2012, endows the Sheriff with the ability to place prisoners in his custody who face a health risk on Electronic Monitoring or Home Confinement or in some other place in Cook County, in order to protect the lives of those prisoners.
58. The Sheriff has intentionally failed to utilize this statutory authority in the midst of a national pandemic and state emergency, while a growing number of detainees and staff are infected and made sick every day.
59. As a result, the Sheriff has been deliberately indifferent to the rights and wellbeing of all the prisoners in his custody, in violation of the Fourteenth Amendment.
CLASS ACTION ALLEGATIONS 60. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual named Plaintiffs bring this action on behalf of themselves and a class consisting of all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic. The class allegations and law are set forth in more detail in the accompanying motion for class certification. 61. This Class includes two subclasses. Subclass A consists of all people who, because of age or previous medical conditions, are at particularly grave risk of harm from COVID-19. 62. Subclass B consists of all people who are currently housed on a tier where someone has already tested positive for the coronavirus.
24

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63. A class action is the only practicable means by which the individual named Plaintiffs and the class members can challenge the Sheriff’s unconstitutional actions. Many members of the class are without the means to retain an attorney to represent them in a civil rights lawsuit.
64. The class and subclasses are so numerous that joinder of all members is impractical. The number of people in custody exceeds 4,700, and each subclass contains at least hundreds of persons. Specifically, demographic data regarding the health of correctional populations, which is set forth above, indicates that Subclass A consists of hundreds of persons. Subclass B, likewise, consists of hundreds of persons, including but not limited to all detainees in Division 6, who live on tiers where one or more infected persons was present.
65. There are questions of law and fact common to all class members and the subclass, including, among many others: (1) does COVID-19 present a substantial risk of harm to people detained in the Cook County Jail? And (2) is the Sheriff adequately protecting the class members from the risk of serious harm? These questions are also typical to each member of the sub-classes. Additionally, the members of Subclass A share the common question of their particular vulnerability to the COVID-19 pandemic, while the members of Subclass B share the common question regarding whether they are entitled to a safer environment.
66. The claims of the class representatives are typical of the claims of the class, and of the subclasses. That typicality stems from their claim that Dart has placed them at significant risk of harm by failing to take appropriate steps to address the risk of COVID-19 throughout the Cook County Jail. Every person at the Jail faces a heightened risk of risk of contracting COVID-19 if they are not adequately protected by Dart.
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67. The claims of the subclass representatives are typical of the subclass members as well. The claims of the representatives of Subclass A are typical as each member is subject to increased risk as a result of their existing medical conditions. The claims of the representatives of Subclass B are typical in that they are all threatened with infection because of their housing location, which would be resolved with the proposed remedy.
68. The individual named Plaintiffs will fairly and adequately represent the interests of the class and subclasses. The named Plaintiffs have no conflicts with the unnamed members of the proposed class. In addition, their lawyers are experienced in federal court civil rights class actions, particularly those involving prisons and jails.
69. The Defendant has failed to act in a manner that applies generally to the class as a whole, rendering class-wide injunctive and declaratory relief appropriate.
COUNT I 42 U.S.C. § 1983 (on behalf of all Class members), Fourteenth Amendment 70. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 71. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendant of their rights under the Fourteenth Amendment to reasonably safe living conditions. Specifically, Defendant is aware of the substantial risk of harm that COVID-19 poses to all individuals, and is further aware of the particular risks of severe illness and possible death that Plaintiffs face as a result of the inherently congregate and unclean settings in the Cook County Jail. Despite this knowledge, Defendant has failed to take reasonable measures to mitigate these dangers. 72. As a result of Defendant’s actions and inactions, class members face a substantial risk of contracting COVID-19 and sustaining a serious illness that could lead to death.
26

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73. Defendant’s failure to take appropriate steps to curb the substantial threat posed by COVID-19 to each person in his custody, as described more fully above, violates Plaintiff’s rights to unreasonable risk of death and bodily harm.
74. Consequently, the Defendants are in continuous violation of these Plaintiffs’ rights and the rights of the members of the subclasses under the Fourteenth Amendment to the United States Constitution.
75. Plaintiffs seek injunctive and declaratory relief against all Defendants to prevent the continued violation of the rights of Plaintiffs and the class they represent.
COUNT II Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (on behalf of Subclass A)
76. Subclass A petitioners repeat and re-allege the preceding paragraphs as if fully set forth in this Count.
77. Subclass A Petitioners are not in custody pursuant to a judgment of conviction of a state court.
78. Subclass A Petitioners should be deemed to have exhausted state court remedies. Because they seek release in light of the immediate and urgent risks to their health and lives, there is no remedy that could be pursued in the courts of the State of Illinois that would protect their rights. Exhaustion of any such remedy would be futile.
79. Respondent is holding Subclass A Petitioners in custody in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Due Process forbids exposing Petitioner to a severe risk of death, pain, or permanent severe injury, and at this time no options available to Respondent will adequately mitigate that risk other than immediate release from custody.
27

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REQUEST FOR RELIEF WHEREFORE, Plaintiffs on behalf of themselves and the class they seek to represent, request that this Court enter judgment in their favor and against Defendant Tom Dart and order the following relief: a. Order immediate release pursuant to a writ of habeas corpus for members of Subclass
A: People in custody who have vulnerabilities that place them in heightened risk of contracting serious COVID 19, including persons over the age of 65 and persons with underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions including chronic lung disease or moderate to severe asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other condition or related to treatment for a medical condition; people with chronic liver or kidney disease or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; people who have had or are at risk of stroke; and people with any other condition specifically identified by CDC either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19. b. Issue a temporary restraining order, preliminary injunction, and final judgment for all Class members requiring the Sheriff to implement constitutionally sufficient procedures to protect their health and safety that are consistent with CDC guidelines and the expert judgment of correctional health specialists.
28

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c. Issue a temporary restraining order, preliminary injunction, and final judgment for all members of Subclass B requiring the Sheriff to transfer them to a safe facility or some other form of custody.
d. Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and 28 U.S.C § 2241.
e. Grant such other relief as this Court deems just and proper.

Dated: April 3, 2020

Respectfully submitted,
s// Stephen H. Weil Stephen H. Weil Sarah Grady LOEVY & LOEVY 311 N. Aberdeen Street, #3 Chicago, IL 60607 Tel: 312-243-5900 Fax: 312-243-5902 weil@loevy.com sarah@loevy.com
Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue, Chicago, IL 60611 (312) 503-0884 l-bowman@law.northwestern.edu a-vanbrunt@law.northwestern.edu
Charles Gerstein (pro hac vice application forthcoming) Alec Karakatsanis (pro hac vice application forthcoming) Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 charlie@civilrightscorps.org 202-894-6128
29

Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 30 of 30 PageID #:30 VERIFICATION
I, Stephen H. Weil, represent Plaintiff-Petitioners, and I hereby verify the foregoing allegations on his behalf and on behalf of Subclass A Petitioners pursuant to 28 U.S.C. § 2242.
/s/ Stephen H. Weil
30

 
 United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:20-cv-02134

Mays et al v. Thomas Assigned to: Honorable Robert W. Gettleman Referred to: Honorable M. David Weisman Case in other court: 20-01792 Cause: 42:1983 Civil Rights Act

Date Filed: 04/03/2020 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff
Anthony Mays Individually and on behalf of a class of similarly situated persons

represented by Alexa Van Brunt Macarthur Justice Center 375 E. Chicago Avenue Chicago, IL 60611 (312) 503-1336 Email: avanbrunt@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Locke E. Bowman , III Roderick and Solange MacArthur Justice Center Northwestern University School of Law 160 East Grand Avenue, 6th Floor Chicago, IL 60611 (312) 503-0844 Email: lbowman@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Copeland Grady Loevy & Loevy 311 N. Aberdeen Street 3rd Floor Chicago, IL 60607 (312) 243-5900 Email: sarah@loevy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Alec Karakatsanis Civil Rights Corps 1601 Connecticut Ave Suite 800 Washington, DC 20009 (202) 844-4975 Email: alec@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Lewis Gerstein , Next Civil Rights Corps 1601 Connecticut Ave, Suite 800 Suite 800 Washington, DC 20009 (202) 894-6128 Email: charlie@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Grimes Winston & Strawn LLP 35 West Wacker Drive Chicago, IL 60601-9703 (312) 558-8317 Email: SGrimes@winston.com ATTORNEY TO BE NOTICED
Thomas Francis Mcandrew Winston & Strawn Llp 35 W Wacker Chicago, IL 60601 (847) 922-3024 Email: tmcandrew@winston.com ATTORNEY TO BE NOTICED
Stephen H. Weil Loevy & Loevy 311 N. Aberdeen Street Chicago, IL 60607 312-243-5900 Email: weil@loevy.com ATTORNEY TO BE NOTICED

Jackson Judia Individually and on behalf of a class of similarly situated persons next of friend Kenneth Foster

represented by Alexa Van Brunt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Locke E. Bowman , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Copeland Grady (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec Karakatsanis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Lewis Gerstein , Next (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Grimes (See above for address) ATTORNEY TO BE NOTICED
Thomas Francis Mcandrew (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Cook County Sheriff Dart J Thomas Sheriff of Cook County

represented by James Matthias Lydon Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606

(312) 704-3000 Email: jlydon@hinshawlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Thomas Shannon Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606 (312) 704-3901 Email: rshannon@hinshawlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Robert Vaught Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606 (312) 704-3584 Email: avaught@hinshawlaw.com ATTORNEY TO BE NOTICED
Gretchen Harris Sperry Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606 (312)704-3521 Email: gsperry@hinshawlaw.com ATTORNEY TO BE NOTICED
Lari Ann Dierks Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606 (312) 704-3254 Email: ldierks@hinshawlaw.com TERMINATED: 01/04/2021
Vincent Michael Rizzo Hinshaw and Culbertson 222 North LaSalle Street Suite 300

Intervenor Defendant International Brotherhood of Teamsters Local 700 TERMINATED: 05/01/2020
Amicus City Of Chicago

Chicago, IL 60602 (312) 704-3234 Email: vrizzo@hinshawlaw.com ATTORNEY TO BE NOTICED
represented by Sherrie E. Voyles Jacobs, Burns, Orlove & Hernandez 150 North Michigan Avenue Suite 1000 Chicago, IL 60601 (312) 327-3444 Email: svoyles@jbosh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Michael Anderson Jacobs, Burns, Orlove & Hernandez 150 N. Michigan Avenue Suite 1000 Chicago, IL 60601 312 327 3461 Email: banderson@jbosh.com ATTORNEY TO BE NOTICED
David G. Huffman-Gottschling Jacobs, Burns, Orlove & Hernandez 150 North Michigan Avenue Suite 1000 Chicago, IL 60601 (312) 327-3443 Email: davidhg@jbosh.com ATTORNEY TO BE NOTICED
represented by Mark A. Flessner City of Chicago Department of Law Corporation Counsel 121 N. LaSalle Street Suite 600 Chicago, IL 60602 312-744-0220 Email: mark.flessner@cityofchicago.org ATTORNEY TO BE NOTICED

Stephen J Kane City of Chicago 121 N. LaSalle Street Room 600 Chicago, IL 60602 (312) 744-6934 Email: Stephen.Kane@cityofchicago.org ATTORNEY TO BE NOTICED

Date Filed 04/03/2020
04/03/2020 04/03/2020 04/03/2020 04/03/2020 04/03/2020
04/03/2020

# Docket Text
1 COMPLAINT filed by Anthony Mays, Jackson Judia; Filing fee $ 400, receipt number 0752-16911626. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V)(Weil, Stephen) (Entered: 04/03/2020)
2 MOTION by Plaintiffs Jackson Judia, Anthony Mays for preliminary injunction or temporary restraining order (emergency) (Van Brunt, Alexa) (Entered: 04/03/2020)
3 MOTION by Plaintiffs Jackson Judia, Anthony MaysFOR AN EXPEDITED HEARING ON MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION (Van Brunt, Alexa) (Entered: 04/03/2020)
4 ATTORNEY Appearance for Plaintiffs Jackson Judia, Anthony Mays by Alexa Van Brunt (Van Brunt, Alexa) (Entered: 04/03/2020)
5 CIVIL Cover Sheet (Weil, Stephen) (Entered: 04/03/2020)
6 MOTION by Plaintiffs Jackson Judia, Anthony Mays to certify class Responses due by 4/6/2020 (Attachments: # 1 Exhibit A: Declaration of Alison Horn, # 2 Exhibit B: Declaration of Stephen H. Weil, # 3 Exhibit C: Declaration of Alexa A. Van Brunt, # 4 Exhibit D: Declaration of Locke E. Bowman, # 5 Exhibit E: Declaration of Charles E. Gerstein)(Van Brunt, Alexa) (Entered: 04/03/2020)
7 ATTORNEY Appearance for Plaintiffs Jackson Judia, Anthony Mays by Stephen H. Weil (Weil, Stephen) (Entered: 04/03/2020)

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8 ATTORNEY Appearance for Plaintiffs Jackson Judia, Anthony Mays by Sarah Copeland Grady (Grady, Sarah) (Entered: 04/03/2020)
9 ATTORNEY Appearance for Plaintiffs Jackson Judia, Anthony Mays by Locke E. Bowman, III (Bowman, Locke) (Entered: 04/03/2020)
10 MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly in his capacity as emergency judge. Plaintiffs have filed a putative class action on behalf of Cook County Jail detainees against Cook County Sheriff Thomas Dart. Mays v. Dart, Case No. 20 C 2134. The case, having been filed after the close of business today, has not yet been assigned to a district judge. Plaintiffs have also filed a motion for a temporary restraining order or preliminary injunction (TRO/PI) and a motion seeking an expedited hearing, specifically on 4/6/2020. Plaintiffs advise in the latter motion that on today's date, before filing suit, they gave notice of their intent to file the suit and the TRO/PI motion to the Sheriff's general counsel and to supervisory personnel in the Cook County State's Attorney's Office (CCSAO). Plaintiffs' motion for an expedited hearing is granted to the extent stated in this order. By 12:00 p.m. on 4/6/2020, plaintiffs are directed to supplement their TRO/PI motion to provide their position regarding the applicability and effect of 18 U.S.C. § 3626 to their lawsuit and, in particular, to the relief they are requesting in the TRO/PI motion. Defendant is directed to file a response to the TRO/PI motion by no later than 8:00 p.m. on 4/6/2020. Defendant's response should include a description of any steps defendant has taken and is taking to protect detainees from contracting the Coronavirus and to care for detainees who have already contracted the virus. A hearing on the TRO/PI motion--at least, a preliminary hearing--is set for 4/7/2020 at 10:30 a.m. and will be conducted by telephone. Counsel are to use the following call-in number: 888-684-8852, conference code 746-1053. The Court strongly encourages the parties to confer to attempt to reach a reasonable resolution of the dispute, taking into consideration the health and safety of detainees, the safety of the public, and the operation of the criminal justice system. At the hearing on April 7, the Court reserves the right to order further briefing and argument and to direct the parties to pursue mediation of the dispute. Because no attorney has yet filed an appearance for defendant, plaintiffs' counsel is directed to immediately provide notice of this order to the Sheriff's general counsel and to the CCSAO supervisory personnel to whom they provided notice of their intent to file the lawsuit and to file a verification that they have done so. (mk) (Entered: 04/03/2020)
11 Verification of Service by Jackson Judia, Anthony Mays of Judge Kennelly's Order (Dkt. 10) (Grady, Sarah) (Entered: 04/03/2020)

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12 MINUTE entry before the Honorable Matthew F. Kennelly: Telephone hearing before Judge Kennelly set for 4/7/2020 at 10:30 AM. (mk) (Entered: 04/03/2020)
13 ATTORNEY Appearance for Plaintiffs Jackson Judia, Anthony Mays by Locke E. Bowman, III (Bowman, Locke) (Entered: 04/04/2020)
14 MINUTE entry before the Honorable Matthew F. Kennelly: The Court amends its minute order of 4/3/2020 [dkt. no. 10] as follows. The callin number listed in the 4/3/2020 minute entry will not be used for the hearing set for 4/7/2020 at 10:30 AM. Instead, the Clerk will advise counsel for the parties of a different call-in number that counsel should use for the hearing. For members of the media or public who wish to listen to the hearing, it will be simultaneously played via loudspeaker in Courtroom 2541 at the Dirksen Courthouse. (mk) (Entered: 04/04/2020)
15 ATTORNEY Appearance for Defendant Dart J Thomas by Gretchen Harris Sperry (Sperry, Gretchen) (Entered: 04/05/2020)
16 ATTORNEY Appearance for Defendant Dart J Thomas by Adam Robert Vaught (Vaught, Adam) (Entered: 04/05/2020)
17 ATTORNEY Appearance for Defendant Dart J Thomas by James Matthias Lydon (Lydon, James) (Entered: 04/05/2020)
18 ATTORNEY Appearance for Defendant Dart J Thomas by Robert Thomas Shannon (Shannon, Robert) (Entered: 04/05/2020)
19 ATTORNEY Appearance for Defendant Dart J Thomas by Lari Ann Dierks (Dierks, Lari) (Entered: 04/05/2020)
20 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16912398. (Gerstein, Charles) (Entered: 04/06/2020)
CASE ASSIGNED to the Honorable Robert W. Gettleman. Designated as Magistrate Judge the Honorable M. David Weisman. Case assignment: Random assignment. (axc, ) (Entered: 04/06/2020)
21 ATTORNEY Appearance for Defendant Dart J Thomas by Robert Thomas Shannon CORRECTED (Shannon, Robert) (Entered: 04/06/2020)
22 ATTORNEY Appearance for Defendant Dart J Thomas by James Matthias Lydon CORRECTED (Lydon, James) (Entered: 04/06/2020)
23 ATTORNEY Appearance for Defendant Dart J Thomas by Gretchen Harris Sperry CORRECTED (Sperry, Gretchen) (Entered: 04/06/2020)

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24 ATTORNEY Appearance for Defendant Dart J Thomas by Adam Robert Vaught CORRECTED (Vaught, Adam) (Entered: 04/06/2020)
25 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16913153. (Karakatsanis, Alec) (Entered: 04/06/2020)
26 MOTION by Plaintiffs Jackson Judia, Anthony Mays for leave to file oversized brief in response to the Court's April 3, 2020 Order (Attachments: # 1 Plaintiffs' Proposed Response, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H)(Grady, Sarah) (Entered: 04/06/2020)
27 MINUTE entry before the Honorable Matthew F. Kennelly: Motions of Charles Gerstein 20 and Alex Karakatsanis 25 to appear pro hac vice are granted. Plaintiff's motion for leave to file oversized brief 26 is also granted. (mk) (Entered: 04/06/2020)
28 MINUTE entry before the Honorable Matthew F. Kennelly: The Court directs counsel for the parties to send to Judge Kennelly's proposed order e-mail address (Proposed_Order_Kennelly@ilnd.uscourts.gov.), by no later than 9:00 PM today, a joint report describing the progress of their discussions pursuant to the Court's April 3, 2020 order (dkt. no. 10) "strongly encourag[ing] the parties to confer to attempt to reach a reasonable resolution of the dispute." (mk) (Entered: 04/06/2020)
29 RESPONSE by Dart J Thomasin Opposition to MOTION by Plaintiffs Jackson Judia, Anthony Mays for preliminary injunction or temporary restraining order (emergency) 2 (Attachments: # 1 Defendant's Brief in Opposition to Pltfs Emergency Motion for TRO or Preliminary Injunciton)(Sperry, Gretchen) (Entered: 04/06/2020)
30 RESPONSE by Dart J Thomasin Opposition to MOTION by Plaintiffs Jackson Judia, Anthony Mays for preliminary injunction or temporary restraining order (emergency) 2 (Attachments: # 1 Exhibit Exh A to Dkt 29, # 2 Exhibit Exh B to Dkt 29, # 3 Exhibit Exh C to Dkt 29, # 4 Exhibit Exh D to Dkt 29, # 5 Exhibit Exh E to Dkt 29, # 6 Exhibit Exh F to Dkt 29, # 7 Exhibit Exh G to Dkt 29, # 8 Exhibit Exh H to Dkt 29, # 9 Exhibit Exh I to Dkt 29, # 10 Exhibit Exh J to Dkt 29, # 11 Exhibit Exh K to Dkt 29, # 12 Exhibit Exh L to Dkt 29, # 13 Exhibit Exh M to Dkt 29, # 14 Exhibit Exh N to Dkt 29, # 15 Exhibit Exh O to Dkt 29, # 16 Exhibit Exh P to Dkt 29, # 17 Exhibit Exh Q to Dkt 29, # 18 Exhibit Exh R to Dkt 29)(Sperry, Gretchen) (Entered: 04/06/2020)
31 RESPONSE by Dart J Thomasin Opposition to MOTION by Plaintiffs Jackson Judia, Anthony Mays for preliminary injunction or temporary restraining order (emergency) 2 (Attachments: # 1 Exhibit Exh E to

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Dkt 29, # 2 Exhibit Exh M to Dkt 29, # 3 Exhibit Exh Q to Dkt 29)(Sperry, Gretchen) (Entered: 04/06/2020)
32 MOTION by Defendant Dart J Thomas to seal document Exhibit P to Dkt 29 (Shannon, Robert) (Entered: 04/07/2020)
33 NOTICE of Motion by Robert Thomas Shannon for presentment of motion to seal document 32 before Honorable Matthew F. Kennelly on 4/14/2020 at 09:30 AM. (Shannon, Robert) (Entered: 04/07/2020)
34 SEALED EXHIBIT by Defendant Dart J Thomas Exhibit P to Dkt 29 (Shannon, Robert) (Entered: 04/07/2020)
35 MINUTE entry before the Honorable Matthew F. Kennelly: Defendant has made a motion to file under seal Exhibit P to its response to plaintiffs' motion for a temporary restraining order, which is a 21 page document entitled "Coronoavirus Operation Plan." The entirety of the justification for the motion is a statement that "This plan contains sensitive law enforcement internal strategy and controls." The Court has reviewed the document in its entirety and cannot conclude that defendant has shown that the entire document must be kept out of the public record. The document contains an assessment of the Coronavirus outbreak and its impact on, among other things, the Cook County Jail; it details steps the Sheriff's Office has taken to attempt to deal with the outbreak; and it addresses planning for ongoing developments regarding the outbreak and the Jail. A good deal of it provides the support for what the defendant has discussed in its publicly-filed response to the motion for temporary restraining order. It is conceivable that some part of the document ought to be kept out of the public record, but the proposition that it must be sealed in its entirety is unsupported and likely unsupportable. The Court will deny the motion to seal unless defendant files, before today's telephone hearing, further support identifying the particular portions of the exhibit that should be redacted from the version to be filed in the public record and a particularized explanation for why these portions should be redacted (preferably an affidavit, though the Court acknowledges that the time before the hearing is short, so it may not insist on that for the time being). (mk) (Entered: 04/07/2020)
36 MOTION by Plaintiffs Jackson Judia, Anthony Mays to supplement the Record (Attachments: # 1 Supplement Exhibit 1, # 2 Supplement Exhibit 2)(Weil, Stephen) (Entered: 04/07/2020)
37 NOTICE of Motion by Stephen H. Weil for presentment of motion to supplement 36 before Honorable Robert W. Gettleman on 4/7/2020 at 10:30 AM. (Weil, Stephen) (Entered: 04/07/2020)

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38 MOTION by Defendant Dart J Thomas to seal Certain Information in Exhibit P (Shannon, Robert) (Entered: 04/07/2020)
39 MINUTE entry before the Honorable Matthew F. Kennelly: Preliminary telephonic hearing on Plaintiff's emergency motion for temporary restraining order or preliminary injunction (TRO/PI) 2 held on 4/7/2020. For the reasons stated on the record, Defendant's motion for leave to file certain information in Exhibit P under seal 38 is granted. The defendant is to file a redacted version of Exhibit P on the public record that redacts the phone numbers and email addresses of senior staff from the exhibit. Defendant's motion for leave to file exhibit under seal 32 is terminated as moot. Plaintiffs' motion to supplement the record 36 is granted. The parties have leave to file supplemental briefs addressing the issues set forth by the Court. Submissions are due by 11:59 p.m. tonight, 4/7/2020. The briefs are for legal argument only. Defendant has leave, however, to supplement Mr Miller's declaration if it is uploaded to the docket by 2:00 p.m. today. The parties have leave to file oversized briefs of no more than twenty pages. Mailed notice (cn). (Entered: 04/07/2020)
40 RESPONSE by Dart J Thomasin Opposition to MOTION by Plaintiffs Jackson Judia, Anthony Mays for preliminary injunction or temporary restraining order (emergency) 2 (Attachments: # 1 Exhibit P to Dkt 29REDACTED per court order)(Sperry, Gretchen) (Entered: 04/07/2020)
41 RESPONSE by Defendant Dart J Thomas Supplemental Brief (Attachments: # 1 Exhibit A)(Shannon, Robert) (Entered: 04/07/2020)
42 Supplemental Brief in Support of Motion for Temporary Restraining Order by Jackson Judia, Anthony Mays (Attachments: # 1 Exhibit A: Miami TRO)(Van Brunt, Alexa) (Entered: 04/07/2020)
43 ATTORNEY Appearance for Amicus City Of Chicago by Stephen J Kane Mark A. Flessner (Kane, Stephen) (Entered: 04/08/2020)
44 ATTORNEY Appearance for Amicus City Of Chicago by Stephen J Kane (Kane, Stephen) (Entered: 04/08/2020)
45 MOTION by Amicus City Of Chicago for leave to file Amicus Curiae Brief (Attachments: # 1 Exhibit Brief of Amicus Curiae City of Chicago)(Kane, Stephen) (Entered: 04/08/2020)
46 MINUTE entry before the Honorable Matthew F. Kennelly: The Courts grants the City of Chicago's motion for leave to file an amicus curiae brief in support of defendants. The Court notes, however, that this brief has played no appreciable role in its decision in the case, for reasons

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that will become clear in the Court's decision, which it will issue momentarily. (mk) (Entered: 04/09/2020)
47 MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly, as emergency judge, on 4/9/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants in part plaintiffs' motion for a temporary restraining order [dkt. no. 2] with regard to Count 1 of the complaint but otherwise denies the motion. The Court enters a temporary restraining order to the extent explained in the relief section of this opinion. The Court directs the Sheriff to file a report by 4:00 p.m. on April 13, 2020 regarding his implementation of the Court's directives. The case is set for a telephonic status hearing before the undersigned judge, as emergency judge, on April 14, 2020 at 9:00 a.m. The Clerk will provide the parties with call-in information prior to April 14. (mk) (Entered: 04/09/2020)
48 CORRECTED MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 4/9/2020: This corrected memorandum opinion and order corrects a scrivener's error at line 10 of page 30. (mk) (Entered: 04/09/2020)
49 TRANSCRIPT OF PROCEEDINGS held on 4/7/2020 before the Honorable Matthew F. Kennelly. Order Number: 38391. Court Reporter Contact Information: Kathleen_Fennell@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 5/4/2020. Redacted Transcript Deadline set for 5/12/2020. Release of Transcript Restriction set for 7/10/2020. (Fennell, Kathleen) (Entered: 04/11/2020)
50 MINUTE entry before the Honorable Matthew F. Kennelly: The time for the telephone status hearing before Judge Kennelly on 4/14/2020 is advanced to 8:30 AM. The Clerk will advise counsel for the parties of a call-in number that counsel should use for the hearing. For members of the media or public who wish to listen to the hearing, it will be simultaneously played via loudspeaker in Courtroom 2541 at the Dirksen Courthouse, where Judge Kennelly will be sitting. Mailed notice. (mma, ) (Entered: 04/13/2020)
51 STATUS Report by Dart J Thomas (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit,

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# 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit)(Sperry, Gretchen) (Entered: 04/13/2020)
52 STATUS Report Exhibit A and F by Dart J Thomas (Attachments: # 1 Exhibit A, # 2 Exhibit F)(Sperry, Gretchen) (Entered: 04/13/2020)
53 MINUTE entry before the Honorable Matthew F. Kennelly: Telephonic status hearing held on 4/14/2020. Plaintiffs are to file their motion for expedited discovery and preliminary injunction by 8:00 p.m. on 4/14/2020. Telephonic status hearing and hearing on motion for expedited discovery before Judge Kennelly set for 4/15/2020 at 3:15 p.m. Defendant has leave to file a written response to plaintiffs' motion for expedited prior to the hearing on 4/15/2020 but none is required. The parties are to use the same call in information that was used on 4/14/2020. For members of the media or public who wish to listen to the hearing, it will be simultaneously played via loudspeaker in Courtroom 2541 at the Dirksen Courthouse, where Judge Kennelly will be sitting. Mailed notice (cn). (Entered: 04/14/2020)
54 TRANSCRIPT OF PROCEEDINGS held on 4/14/2020 before the Honorable Matthew F. Kennelly. Order Number: 38404. Court Reporter Contact Information: Kathleen_Fennell@ilnd.uscourts.gov.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 5/5/2020. Redacted Transcript Deadline set for 5/15/2020. Release of Transcript Restriction set for 7/13/2020. (Fennell, Kathleen) (Entered: 04/14/2020)
55 MOTION by Plaintiffs Jackson Judia, Anthony Mays for preliminary injunction (renewed) and for limited, expedited discovery (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Van Brunt, Alexa) (Entered: 04/14/2020)
56 Exhibit K to Plaintiffs' renewed motion for a preliminary injunction by Jackson Judia, Anthony Mays (Van Brunt, Alexa) (Entered: 04/14/2020)

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57 MINUTE entry before the Honorable Matthew F. Kennelly: The Court advises that in addition to discussing plaintiffs' motion for expedited discovery at this afternoon's hearing, it likely will also have some questions regarding the PLRA-related issues raised in plaintiffs' preliminary injunction motion. (mk) (Entered: 04/15/2020)
58 MINUTE entry before the Honorable Matthew F. Kennelly: Telephonic hearing held on 4/15/2020. Defendant's response to plaintiffs' renewed motion for a preliminary injunction and for limited, expedited discovery 55 due by 4/17/20 at 8 p.m. Plaintiffs' reply due by 4/19/20 at 12:00 p.m. Judge Kennelly will determine after reviewing the briefs whether another telephone hearing is needed. Mailed notice (cn). (Entered: 04/15/2020)
59 TRANSCRIPT OF PROCEEDINGS held on 4/15/2020 before the Honorable Matthew F. Kennelly. Order Number: 38409,38410. Court Reporter Contact Information: Kathleen_Fennell@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 5/6/2020. Redacted Transcript Deadline set for 5/18/2020. Release of Transcript Restriction set for 7/14/2020. (Fennell, Kathleen) (Entered: 04/15/2020)
60 ATTORNEY Appearance for Plaintiffs Jackson Judia, Anthony Mays by Steven Grimes (Grimes, Steven) (Entered: 04/17/2020)
61 ATTORNEY Appearance for Plaintiffs Jackson Judia, Anthony Mays by Thomas Francis Mcandrew (Mcandrew, Thomas) (Entered: 04/17/2020)
62 RESPONSE by Dart J Thomasin Opposition to MOTION by Plaintiffs Jackson Judia, Anthony Mays for preliminary injunction (renewed) and for limited, expedited discovery 55 PARTIAL (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit Transcript)(Sperry, Gretchen) (Entered: 04/17/2020)
63 MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly as emergency judge. The Court advises that it is contemplating hearing argument on either 4/20/2020 or 4/21/2020 at 8:30 AM (to avoid interfering with the court call of the designated emergency judge for the particular date) on, among other

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matters, the motion for expedited discovery, the impending expiration of the temporary restraining order, issues addressed in the response defendant filed yesterday to the preliminary injunction motion, and whether there should be a hearing on the motion for preliminary injunction. The Court will, if it determines to hear such argument, set the date and time for it tomorrow (4/19/2020) and will do its best to provide a list of the topics the parties should be prepare to discuss. (mk) (Entered: 04/18/2020)
64 REPLY by Plaintiffs Jackson Judia, Anthony Mays to motion for preliminary injunction, 55 (Attachments: # 1 Exhibit List, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Grady, Sarah) (Entered: 04/19/2020)
65 MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly as emergency judge. In view of the impending expiration of the temporary restraining order entered on 4/9/2020, the request to extend it and to issue a preliminary injunction on an emergency basis (among other forms of immediate relief), and the request for expedited discovery, the matter is set for further argument on 4/20/2020 at 8:30 AM. Counsel should use the same callin number that they used on 4/15/2020, and as before, the hearing will be simultaneously played via loudspeaker in Courtroom 2541 at the Dirksen Courthouse for members of the media or public who wish to listen to the hearing. The hearing will be strictly limited to 60 minutes in view of the need for the judge designated as emergency judge on 4/20/2020 to have access to the recorded conference line being used for emergency hearings. The parties should be prepared to address at least the following issues: (1) what should happen upon, and pending, expiration of the temporary restraining order (e.g., allow it to lapse; convert it to a preliminary injunction; order additional relief via a preliminary injunction; etc.); (2) issues regarding the application of the PLRA, 18 USC 3626, to the request(s) for relief currently before the Court, including whether the trigger for convening a 3-judge court have been met; the effect of 18 USC 3626(a)(1)(A) & (2) on the request(s) for relief that are before the Court; and whether the relief currently sought amounts to a "prisoner release order" under the PLRA; (3) what the due process "objective reasonableness" standard means as applied to the issues in this case; (4) whether an evidentiary hearing is needed on the request for a preliminary injunction that is before the Court, and if so, what it should include, what, if any, witnesses should testify, and when and how it should be held; and (5) what, if any, of the expedited discovery currently sought by plaintiffs (via their reply brief) should be allowed, and whether, if an evidentiary hearing will be held, defendants want expedited discovery. The Court will also do its best, within the available time limits, to give each party a brief opportunity to address

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significant points not on this list that the party believes it has not addressed sufficiently in the written materials it has filed. (mk) (Entered: 04/19/2020)
66 MINUTE entry before the Honorable Matthew F. Kennelly: Telephonic hearing before Judge Kennelly, as emergency judge, set for 4/20/2020 at 8:30 AM. (mk) (Entered: 04/19/2020)
67 MINUTE entry before the Honorable Matthew F. Kennelly: Telephonic hearing held on 4/20/2020. The Court will hold a one-hour hearing on Thursday, 4/23/2020. At the hearing, each party will have a single witness that will testify and will have fifteen minutes for closing arguments. The parties are to identify their one testifying witness and provide opposing counsel and the Court with notice of that person by today, 4/20/2020 at 8:00 p.m. Defendant has leave to file an affidavit addressing the walkthrough of the jail by the CDC and CDPH on 4/17/2020 by tomorrow, 4/21/2020. Other than this single filing, neither party has leave to file anything further. The court will contact the parties at a later date with the time of Thursday's hearing. Mailed notice (cn). (Entered: 04/20/2020)
68 MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly as emergency judge. The order entered previously contained an error on the part of Judge Kennelly and is corrected to read as follows. Telephonic hearing held on 4/20/2020. The court will hold a hearing on Thursday, 4/23/2020, with the starting time to be determined after getting input from counsel regarding witness availability. The hearing will also be limited in time, with the total length to be determined. At the hearing, each party will have a single witness that will testify and will have fifteen minutes for closing arguments. The parties are to identify their one testifying witness and provide opposing counsel and the court with notice of that person by today, 4/20/2020 at 8:00 p.m. Defendant has leave to file an affidavit addressing the walkthrough of the jail by the CDC and CDHD on 4/17/2020 by tomorrow, 4/21/2020. Other than this single filing, neither party has leave to file anything further. Mailed notice (cn). (Entered: 04/20/2020)
69 MINUTE entry before the Honorable Matthew F. Kennelly: Evidentiary hearing on motion for preliminary injunction, as discussed at the 4/20/2020 hearing, is set for 4/23/2020 at 12:30 PM. The hearing will be conducted by video conference. No more than 3 attorneys per side may participate in the video conference. Counsel are to promptly contact the Clerk, if they have not already done so, to make arrangements to participate for themselves and their witnesses. Judge Kennelly will preside in courtroom 1003, which will be open to the

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press and public for viewing. The two witnesses to be called are Dr. Venters (plaintiffs) and Mr. Miller (defendant). Following consultation by the Court with counsel, the following procedures will apply, subject to adjustment if technical difficulties intervene. (1) Mr. Miller will testify first, starting as soon as possible after the hearing begins at 12:30 PM, but starting no later than 12:45 PM. His direct examination will be his previously filed affidavits, supplemented by 10 minutes of questioning by defendant's counsel, followed by 45 minutes of questioning by plaintiffs' counsel, 10 minutes for redirect by defendant's counsel, and 5-10 minutes for questioning by the Court. (2) Dr. Venters will testify next. His direct examination will be his previously filed affidavit, supplemented by 10 minutes of questioning by plaintiffs' counsel, followed by 45 minutes of questioning by defendant's counsel, 10 minutes for redirect by plaintiff's counsel, and 5-10 minutes for questioning by the Court. (The Court is willing to consider extending Dr. Venters's time by a bit to roughly equalize the time for each side's witness.) (3) Then defendant will be permitted to recall Mr. Miller for no more than 10 minutes of further testimony, followed by questioning by plaintiffs' counsel in an amount equal to that used by defendant's counsel. (4) After the testimony is complete, each side will be given 15 minutes for argument, assuming there is sufficient time remaining before the hearing concludes at or about 4:30 PM. (mk) (Entered: 04/21/2020)
70 EXHIBIT by Defendant Dart J Thomas Affidavit regarding Walkthrough of Jail by CDC/CDPH PER COURT ORDER regarding text entry,,,, 68 (Sperry, Gretchen) (Entered: 04/21/2020)
71 MINUTE entry before the Honorable Matthew F. Kennelly: Evidentiary hearing on motion for preliminary injunction held on 4/23/2020 before Judge Kennelly as emergency judge. The motion for preliminary injunction 55 is taken under advisement. For the reasons stated on the record, Plaintiffs' oral motion to extend the Temporary Restraining Order ("TRO") entered on 4/9/2020 48 is granted and the TRO is extended as stated in open court pending the Court's ruling on the motion for preliminary injunction. Mailed notice (cn). (Entered: 04/23/2020)
75 ORDER Third Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable

04/27/2020 04/27/2020
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Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket9, ) (Entered: 04/27/2020)
72 SUPPLEMENT to Prior Plaintiff Submissions (To Advise the Court of Kenneth Foster's Release from Custody) (Bowman, Locke) (Entered: 04/27/2020)
73 MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 4/27/2020: The Court grants the plaintiffs' motion for preliminary injunction in part and denies it in part as set out in the accompanying Memorandum Opinion and Order [dkt. no. 55]. (mk) (Entered: 04/27/2020)
74 PRELIMINARY INJUNCTION signed by the Honorable Matthew F. Kennelly on 4/27/2020. (mk) (Entered: 04/27/2020)
76 MOTION by Intervenor Defendant International Brotherhood of Teamsters Local 700 to intervene (Attachments: # 1 Exhibit 1, # 2 Exhibit 1-A)(Voyles, Sherrie) (Entered: 04/30/2020)
77 ATTORNEY Appearance for Intervenor Defendant International Brotherhood of Teamsters Local 700 by Sherrie E. Voyles (Voyles, Sherrie) (Entered: 04/30/2020)
78 ATTORNEY Appearance for Intervenor Defendant International Brotherhood of Teamsters Local 700 by David George HuffmanGottschling (Huffman-Gottschling, David) (Entered: 04/30/2020)
79 ATTORNEY Appearance for Intervenor Defendant International Brotherhood of Teamsters Local 700 by Brandon Michael Anderson (Anderson, Brandon) (Entered: 04/30/2020)
80 MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly, as emergency judge, on the emergency docket (20 C 1792) and on the docket of Mays v. Dart (20 C 2134). International Brotherhood of Teamsters Local 700 has filed a motion to intervene in the Mays case and has filed it not only on the docket in that case but also on the emergency docket. The motion, however, does not describe any emergency. Indeed, it says (in paragraph 6) that the movant "does not seek reconsideration of any preliminary rulings entered thus far" and instead seeks to protect the interest of the plaintiff's members "as complications arise with the implementation of those rulings" or "as the Court considers permanent relief," neither of which appear to describe emergencies. The Court therefore terminates the motion on the emergency docket. If movant considers the motion to present an emergency, then it should file an amended motion on the emergency docket. Otherwise, the motion can appropriately be dealt

05/01/2020 05/01/2020 05/01/2020
05/01/2020 05/06/2020
05/06/2020 05/11/2020 05/11/2020

with by the assigned judge in the Mays case. (mk) (Entered: 04/30/2020)
81 MINUTE entry before the Honorable Robert W. Gettleman: Motion to intervene of International Brotherhood of Teamsters Local 700 76 is denied for failure to comply with Federal Rule of Civil Procedure 24(c). Mailed notice (cn). (Entered: 05/01/2020)
82 MOTION by Intervenor Defendant International Brotherhood of Teamsters Local 700 for Leave to Renew Motion to Intervene and File Answer Instanter or, in the alternative, for Reconsideration (Attachments: # 1 Exhibit A - Proposed Answer)(Voyles, Sherrie) (Entered: 05/01/2020)
83 MINUTE entry before the Honorable Robert W. Gettleman: All parties are directed to respond to International Brotherhood of Teamsters Local 700's motion for leave to renew motion to intervene or, in the alternative, for reconsideration 82 by 5/15/2020, proposed intervenor's reply due 5/22/2020. The court will issue its ruling via CM/ECF. Mailed notice (cn). (Entered: 05/01/2020)
84 STATUS Report by Dart J Thomas (Attachments: # 1 Exhibit List, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L)(Sperry, Gretchen) (Entered: 05/01/2020)
85 RESPONSE by Plaintiffs Jackson Judia, Anthony Mays to status report, 84 and request for emergency expedited discovery (Attachments: # 1 Exhibit A: Plaintiffs' Proposed Expedited Discovery, # 2 Exhibit B: Excerpts of PI Hearing Transcript, # 3 Exhibit C: Moore Grievance, # 4 Exhibit D: Detainee Declarations)(Van Brunt, Alexa) (Entered: 05/06/2020)
86 MINUTE entry before the Honorable Robert W. Gettleman: Defendant's response to Plaintiffs' response to the Sheriff's May 1 status report and request for targeted expedited discovery 85 due by 5/11/2020. Mailed notice (cn). (Entered: 05/06/2020)
87 RESPONSE by Defendant Dart J Thomas to Response, 85 to Plfs May 6, 2020 Filing (Attachments: # 1 Exhibit)(Sperry, Gretchen) (Entered: 05/11/2020)
88 NOTICE of appeal by Dart J Thomas regarding orders 73 , 74 Filing fee $ 505, receipt number 0752-17003994. Receipt number: n (Sperry, Gretchen) (Entered: 05/11/2020)

05/11/2020 05/12/2020 05/12/2020 05/12/2020 05/12/2020
05/14/2020 05/15/2020
05/15/2020
05/18/2020

89 DOCKETING Statement by Dart J Thomas regarding notice of appeal 88 (Sperry, Gretchen) (Entered: 05/11/2020)
90 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 88 (sxb, ) (Entered: 05/12/2020)
91 TRANSMITTED to the 7th Circuit the short record on notice of appeal 88 . Notified counsel. (sxb, ) (Entered: 05/12/2020)
92 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 88 ; USCA Case No. 20-1792. (sxb, ) (Entered: 05/12/2020)
93 MOTION by Plaintiffs Jackson Judia, Anthony Mays for leave to file reply to Sheriff's response (Attachments: # 1 Exhibit Proposed Reply to Sheriff's Response, # 2 Exhibit A to Proposed Reply (Detainee Declarations))(Van Brunt, Alexa) (Entered: 05/12/2020)
94 MINUTE entry before the Honorable Robert W. Gettleman: Plaintiffs' motion for leave to file reply to Sheriff's response 93 is granted. Mailed notice (cn). (Entered: 05/14/2020)
95 RESPONSE by Jackson Judia, Anthony Mays to MOTION by Intervenor Defendant International Brotherhood of Teamsters Local 700 for Leave to Renew Motion to Intervene and File Answer Instanter or, in the alternative, for Reconsideration 82 (Mcandrew, Thomas) (Entered: 05/15/2020)
96 RESPONSE by Dart J Thomas to MOTION by Intervenor Defendant International Brotherhood of Teamsters Local 700 for Leave to Renew Motion to Intervene and File Answer Instanter or, in the alternative, for Reconsideration 82 (Sperry, Gretchen) (Entered: 05/15/2020)
97 MINUTE entry before the Honorable Matthew F. Kennelly: This minute entry is made by Judge Kennelly, as emergency judge. Plaintiffs, in their May 6 response to defendant's May 1 status/compliance report, have made what they describe as a request for immediate and targeted discovery regarding the question of compliance with the preliminary injunction. See dkt. no. 85 at 12-15. The assigned judge, Judge Gettleman, has determined that a hearing on the request is required. Following consultation, and given the immediate nature of the relief sought, the hearing will be conducted by Judge Kennelly as emergency judge, who will then rule on the request for discovery. The hearing is set for 5/21/2020 at 1:15 PM. The Court is in the process of determining whether the hearing will be conducted by telephone conference or by video conference. That determination will be made by

no later than the afternoon of 5/20/2020, and the parties will be advised at that time regarding call-in information. (mk) (Entered: 05/18/2020)

05/19/2020

98 MOTION by Defendant Dart J Thomas to stay and Renewed Motion to Strike Plaintiffs' Discovery Requests for Lack of Jurisdiction (Attachments: # 1 Proposed Motion, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Sperry, Gretchen) (Entered: 05/19/2020)

05/20/2020

99 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Defendants Thomas J.Dart and Sheriff of Cook County's motion for leave to file oversized brief 98 is granted to 19 pages. Notice mailed by judge's staff (ntf, ) (Entered: 05/20/2020)

05/20/2020

100 MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly as emergency judge. Following consultation with Judge Gettleman, the assigned judge, Judge Kennelly will address both the plaintiffs' request for discovery (as previously stated) and the defendant's motion for a stay pending appeal. The defendant's request to vacate the 5/21/2020 hearing on the plaintiffs' request for discovery is overruled. The motion for stay is set for hearing at the same time as the plaintiffs' request for discovery, specifically, 5/21/2020 at 1:15 PM. The Court intends to attempt to conduct the hearing by video conference and will send out the necessary information to counsel later today and will also make a docket entry providing information for telephone access to the hearing for the public. (mk) (Entered: 05/20/2020)

05/20/2020

101 MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly as emergency judge. Plaintiffs are directed to file a written response to defendant's motion to stay pending appeal by 8:00 PM this evening, though the Court encourages them to file their response earlier than that if they are able to do so. (mk) (Entered: 05/20/2020)

05/20/2020

102 MOTION by Plaintiffs Jackson Judia, Anthony Mays for leave to file an oversized brief in response to Sheriff's motion to stay pending appeal and to strike discovery requests (Attachments: # 1 Proposed Response in Opposition to Sheriff's Motion to Stay and to Strike, # 2 Exhibit A to Proposed Response: Detainee declarations, # 3 Exhibit B to Proposed Response: Staudt Declaration, # 4 Exhibit C to Proposed Response: Westlaw cases)(Van Brunt, Alexa) (Entered: 05/20/2020)

05/20/2020 103 MINUTE entry before the Honorable Matthew F. Kennelly, as emergency judge: Plaintiffs' motion for leave to file excess pages 102 is granted. (mk) (Entered: 05/20/2020)

05/21/2020

104 MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly as emergency judge. Today's 1:15 PM hearing will be held by video conference, with telephone conference as a fallback if there are technical problems with the video conference. The Court will send an invitation for the video conference to counsel of record for plaintiffs, defendant, and the proposed intervenor. The invitation will include instructions for participating by video and also participating by telephone only and will include a password for video access. Participation in the video aspect of the hearing will be limited to three lawyers for plaintiffs, three lawyers for defendants, and one lawyer for the proposed intervenor, though the Court does not anticipate that the proposed intervenor will be presenting arguments on the request for expedited discovery or the motion to stay the preliminary injunction pending appeal. Others may participate by telephone. Counsel should sign in at least 10 minutes early to make sure they have the correct video and audio settings. For purposes of public and press access, audio-only access to the hearing will be available via the following call-in number: 571-353-2300, access code 314-468-475. If there are technical problems with the video conference, the Court will recess the video hearing and will resume the hearing by telephone conference. The call-in number for the fallback telephone conference is 888-684-8852, and the access code is 746-1053. All persons granted remote video or audio access to proceedings are reminded of the prohibitions against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed appropriate by the Court. (mk) (Entered: 05/21/2020)

05/21/2020

105 MINUTE entry before the Honorable Matthew F. Kennelly: MINUTE entry before the Honorable Matthew F. Kennelly: This order is entered by Judge Kennelly as emergency judge. Today's 1:15 PM hearing will be held by video conference, with telephone conference as a fallback if there are technical problems with the video conference. The Court will send an invitation for the video conference to counsel of record for plaintiffs, defendant, and the proposed intervenor. The invitation will include instructions for participating by video and also participating by telephone only and will include a password for video access. Participation in the video aspect of the hearing will be limited to three lawyers for plaintiffs, three lawyers for defendants, and one lawyer for the proposed intervenor, though the Court does not anticipate that the proposed intervenor will be presenting arguments on the request for expedited discovery or the motion to stay the preliminary injunction pending appeal. Others may participate by telephone. Counsel should sign in at least 10 minutes early to make sure they have the correct

video and audio settings. For purposes of public and press access, audio-only access to the hearing will be available via the following callin number: 571-353-2300, access code 314-468-475. If there are technical problems with the video conference, the Court will recess the video hearing and will resume the hearing by telephone conference. The call-in number for the fallback telephone conference is 888-6848852, and the access code is 746-1053. All persons granted remote video or audio access to proceedings are reminded of the prohibitions against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed appropriate by the Court. (mk) (Entered: 05/21/2020)

05/21/2020

106 MINUTE entry before the Honorable Matthew F. Kennelly: Video conference hearing held on 5/21/2020. The Court takes under advisement Plaintiffs' request for expedited discovery 55 and Defendant's motion to stay pending appeal and renewed motion to strike plaintiffs' "discovery requests" for lack of jurisdiction 98 . No further briefs will be accepted on these issues. The parties are directed to confer as required by Rule 26(f) and submit to Judge Gettleman's courtroom deputy, Claire_Newman@ilnd.uscourts.gov, a proposed Scheduling Order under Rule 16(b) by 6/2/2020. Mailed notice (cn). (Entered: 05/21/2020)

05/22/2020

107 REPLY by International Brotherhood of Teamsters Local 700 to response to motion, 95 , response to motion, 96 (Voyles, Sherrie) (Entered: 05/22/2020)

05/26/2020

108 ORDER ORDER Fourth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For nonemergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket10, ) (Entered: 05/26/2020)

05/29/2020

109 MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 5/29/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies defendant's motion to stay the preliminary injunction pending appeal [dkt. no. 98] and denies plaintiffs' motion for expedited discovery [dkt. no. 85]. (mk) (Entered: 05/29/2020)

05/29/2020 110 WAIVER OF SERVICE returned executed by Anthony Mays, Jackson Judia. Dart J Thomas waiver sent on 4/4/2020, answer due 6/3/2020. (Grady, Sarah) (Entered: 05/29/2020)

06/02/2020

111 ORDER signed by the Honorable Robert W. Gettleman on 6/2/2020: For the reasons set forth in the attached Order, the Union's motion to intervene (Doc. 82 ) is granted. Mailed notice (cn). (Entered: 06/02/2020)

06/03/2020

112 MINUTE entry before the Honorable Robert W. Gettleman: Plaintiffs and defendant Thomas Dart have submitted competing discovery plans in the form of a proposed order, which the court will not enter but should be filed on the docket as a status report on the current positions of the parties concerning discovery. The court notes that, (a) the preliminary injunction entered by the emergency judge has been appealed, and (b) the court has recently granted the union representing the Cook County Jail staff the right to intervene as a party defendant. Having considered the positions of the parties, and the dynamics of this case, the court sets a tentative fact and expert discovery cutoff for 9/30/2020. The court refers discovery supervision and settlement matters to Magistrate Judge David Weisman. Finally, the court notes that this schedule is subject to change depending on the ruling of the Court of Appeals on the appeal of the preliminary injunction entered by the emergency judge. Due to the current COVID-19 Emergency schedule, the court will set an in-court status hearing prior to the close of discovery. Mailed notice (cn). (Entered: 06/03/2020)

06/03/2020

113 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable M. David Weisman for the purpose of holding proceedings related to: discovery supervision and settlement. (cn) Mailed notice. (Entered: 06/03/2020)

06/03/2020

114 MINUTE entry before the Honorable M. David Weisman:This case has been referred to Magistrate Judge Weisman for the purposes of discovery supervision and to conduct a settlement conference. Status hearing set for 6/9/2020 will at 9:15 a.m. be conducted by telephone. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877-411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. BECAUSE ALL CASES SET FOR STATUS HEARINGS WILL BE USING THIS CONFERENCE CALL-IN NUMBER, PARTICIPANTS MUST REMAIN ON THE LINE WITH THE MUTE FUNCTION

ACTIVATED UNTIL THEIR RESPECTIVE IS CASE IS CALLED. PARTICIPANTS SHALL NOT PLACE THE COURT CONFERENCE CALL ON HOLD OR ATTEMPT OTHER TELEPHONIC FUNCTIONS (E.G. ACCEPTING AN INTRAOFFICE INTERCOM COMMUNICATION, ETC.) DURING THE CONFERENCE CALL AS THIS PRACTICE OFTEN RESULTS IN UNINTENDED CONSEQUENCES SUCH AS MUSIC OR OTHER SOUNDS PROJECTING INTO THE ENTIRE CONFERENCE CALL WHILE THE ALTERNATIVE PHONE USE IS OCCURRING. Mailed notice (ao,) (Entered: 06/03/2020)

06/03/2020 115 MOTION by Plaintiff Anthony Mays for discovery , renewed (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bowman, Locke) (Entered: 06/03/2020)

06/03/2020

116 MINUTE entry before the Honorable M. David Weisman: This Court has set a telephonic status hearing [# 114 ]. In order to conduct this hearing and address the motion [# 115 ] as efficiently as possible, each party must designate one lead counsel to speak for each respective party. Co-counsel will be given the opportunity to communicate with designated lead counsel through email, text, or other electronic means. But, the Court will only hear from a lead counsel for each party. The Court provides this notice to allow counsel to properly prepare for the hearing. The Court looks forward to working with all counsel in this matter. Mailed notice (ao,) (Entered: 06/03/2020)

06/08/2020

117 RESPONSE by Dart J Thomasin Opposition to MOTION by Plaintiff Anthony Mays for discovery , renewed 115 (Attachments: # 1 Exhibit A, May 21, 2020 Transcript)(Dierks, Lari) (Entered: 06/08/2020)

06/09/2020

118 MINUTE entry before the Honorable M. David Weisman: Motion/Magistrate status hearing held. Parties appeared telephonically. Court reporter Nancy LaBella attended telephonically. The Court informed Plaintiff's counsel about his professional relationship with Mr. Shannon, counsel for Defendant. Plaintiff's counsel advised the Court that he has no concerns as it relates to this disclosure. Plaintiffs' motion for limited, expedited discovery 115 is entered and continued. The Court will issue a written ruling. Status hearing set for 6/15/2020 at 9:15 a.m. be conducted by telephone. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1877-411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. BECAUSE ALL CASES SET

FOR STATUS HEARINGS WILL BE USING THIS CONFERENCE CALL-IN NUMBER, PARTICIPANTS MUST REMAIN ON THE LINE WITH THE MUTE FUNCTION ACTIVATED UNTIL THEIR RESPECTIVE IS CASE IS CALLED. PARTICIPANTS SHALL NOT PLACE THE COURT CONFERENCE CALL ON HOLD OR ATTEMPT OTHER TELEPHONIC FUNCTIONS (E.G. ACCEPTING AN INTRAOFFICE INTERCOM COMMUNICATION, ETC.) DURING THE CONFERENCE CALL AS THIS PRACTICE OFTEN RESULTS IN UNINTENDED CONSEQUENCES SUCH AS MUSIC OR OTHER SOUNDS PROJECTING INTO THE ENTIRE CONFERENCE CALL WHILE THE ALTERNATIVE PHONE USE IS OCCURRING. Mailed notice (ao,) (Entered: 06/09/2020)

06/11/2020

119 MINUTE entry before the Honorable M. David Weisman: The Court grants in part plaintiffs' motion for expedited discovery 115 and orders defendant to permit plaintiffs to inspect the areas of the Jail identified in their request for inspection within fourteen days of the date of this order. Enter Order. Mailed notice (ao,) (Entered: 06/11/2020)

06/11/2020 120 ORDER: Signed by the Honorable M. David Weisman on 6/11/2020. Mailed notice (ao,) (Entered: 06/11/2020)

06/12/2020 121 ATTORNEY Appearance for Defendant Dart J Thomas by Vincent Michael Rizzo (Rizzo, Vincent) (Entered: 06/12/2020)

06/15/2020

122 MINUTE entry before the Honorable M. David Weisman: Magistrate status hearing held. Parties appeared telephonically. By 6/19/2020, parties shall exchange Rule 26(a)(1) disclosures. By 8/14/2020, Plaintiffs shall serve their Rule 26(a)(2) disclosures. Plaintiffs' expert shall be deposed by 9/11/2020. Defendant shall serve its Rule 26(a)(2) disclosures by 9/18/2020. Defendant's expert shall be deposed by 9/30/2020. By 6/19/2020, parties shall file any motions for a proposed protective order and a proposed HIPAA order. Parties shall file a joint status report by 7/7/2020. Status hearing set for 7/10/2020 at 9:30 a.m. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877-411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. BECAUSE ALL CASES SET FOR STATUS HEARINGS WILL BE USING THIS CONFERENCE CALL-IN NUMBER, PARTICIPANTS MUST REMAIN ON THE LINE WITH THE MUTE FUNCTION ACTIVATED UNTIL THEIR RESPECTIVE IS CASE IS CALLED. PARTICIPANTS SHALL NOT PLACE THE COURT

CONFERENCE CALL ON HOLD OR ATTEMPT OTHER TELEPHONIC FUNCTIONS (E.G. ACCEPTING AN INTRAOFFICE INTERCOM COMMUNICATION, ETC.) DURING THE CONFERENCE CALL AS THIS PRACTICE OFTEN RESULTS IN UNINTENDED CONSEQUENCES SUCH AS MUSIC OR OTHER SOUNDS PROJECTING INTO THE ENTIRE CONFERENCE CALL WHILE THE ALTERNATIVE PHONE USE IS OCCURRING. Mailed notice (ao,) (Entered: 06/15/2020)

06/18/2020 123 MOTION by Defendant Dart J Thomas for protective order and HIPAA order AGREED (Dierks, Lari) (Entered: 06/18/2020)

06/18/2020 124 MINUTE entry before the Honorable M. David Weisman: Defendant's agreed motion for entry of HIPAA and Confidentiality orders 123 is granted. Enter orders. Mailed notice (ao,) (Entered: 06/18/2020)

06/18/2020 125 CONFIDENTIALITY Order: Signed by the Honorable M. David Weisman on 6/18/2020. (ao,) (Entered: 06/18/2020)

06/18/2020 126 QUALIFIED PROTECTIVE ORDER: Signed by the Honorable M. David Weisman on 6/18/2020. Mailed notice (ao,) (Entered: 06/18/2020)

06/19/2020

127 ORDER dated 6/19/2020 from the 7th Circuit regarding notice of appeal 88 ; Appellate case no. : 20-1792 : IT IS ORDERED that the motion to stay the preliminary injunction pending appeal is GRANTED in part. The injunction is STAYED to the extent that it requires the appellants to establish and put into effect a policy "precluding group housing or double celling of detained persons." In all other respects, the motion is DENIED. (sxb, ) (Entered: 06/19/2020)

06/19/2020

128 TRANSCRIPT OF PROCEEDINGS held on 6/15/2020 before the Honorable M. David Weisman. Order Number: 38652. Court Reporter Contact Information: Kathleen_Fennell@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 7/10/2020. Redacted Transcript Deadline set for 7/20/2020. Release of Transcript Restriction set for 9/17/2020. (Fennell, Kathleen) (Entered: 06/19/2020)

06/23/2020 129 MOTION by Defendant Dart J Thomas to stay discovery pending appeal in light of appellate court stay order (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Sperry, Gretchen) (Entered: 06/23/2020)

06/23/2020 130 NOTICE of Motion by Gretchen Harris Sperry for presentment of motion to stay 129 before Honorable M. David Weisman on 6/29/2020 at 09:15 AM. (Sperry, Gretchen) (Entered: 06/23/2020)

06/24/2020

131 MINUTE entry before the Honorable M. David Weisman:Defendant's renewed motion to stay discovery pending appeal in light of seventh circuit's order staying enforcement in light of the injunction 129 is entered and briefed as follows: Response due 7/1/2020; No reply. Motion hearing set for 6/29/2020 is stricken and reset to 7/10/2020 at 9:30 a.m. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877-411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. BECAUSE ALL CASES SET FOR STATUS HEARINGS WILL BE USING THIS CONFERENCE CALL-IN NUMBER, PARTICIPANTS MUST REMAIN ON THE LINE WITH THE MUTE FUNCTION ACTIVATED UNTIL THEIR RESPECTIVE IS CASE IS CALLED. PARTICIPANTS SHALL NOT PLACE THE COURT CONFERENCE CALL ON HOLD OR ATTEMPT OTHER TELEPHONIC FUNCTIONS (E.G. ACCEPTING AN INTRAOFFICE INTERCOM COMMUNICATION, ETC.) DURING THE CONFERENCE CALL AS THIS PRACTICE OFTEN RESULTS IN UNINTENDED CONSEQUENCES SUCH AS MUSIC OR OTHER SOUNDS PROJECTING INTO THE ENTIRE CONFERENCE CALL WHILE THE ALTERNATIVE PHONE USE IS OCCURRING. Mailed notice (ao,) (Entered: 06/24/2020)

07/01/2020 132 MOTION by Plaintiffs Jackson Judia, Anthony Mays for extension of time to file response/reply as to motion to stay 129 (Bowman, Locke) (Entered: 07/01/2020)

07/01/2020

133 NOTICE of Motion by Locke E. Bowman, III for presentment of motion for extension of time to file response/reply 132 before Honorable M. David Weisman on 7/7/2020 at 09:15 AM. (Bowman, Locke) (Entered: 07/01/2020)

07/02/2020

134 MINUTE entry before the Honorable M. David Weisman: Plaintiffs' unopposed motion to extend the time for filing their response to the Sheriff's motion for stay 132 is granted up to and including 7/7/2020.

Motion hearings set for 7/7/2020 and 7/10/2020 are stricken and reset to 7/15/2020 at 9:45 a.m. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Mailed notice (ao,) (Entered: 07/02/2020)

07/07/2020

135 MOTION by Plaintiffs Jackson Judia, Anthony Mays to stay regarding MOTION by Defendant Dart J Thomas to stay discovery pending appeal in light of appellate court stay order 129 (Bowman, Locke) (Entered: 07/07/2020)

07/07/2020

136 NOTICE of Motion by Locke E. Bowman, III for presentment of motion to stay 135 before Honorable M. David Weisman on 7/10/2020 at 09:15 AM. (Bowman, Locke) (Entered: 07/07/2020)

07/07/2020 137 MOTION by Plaintiffs Jackson Judia, Anthony Mays to Extend the Preliminary Injunction and to Stay Discovery Pending Appeal (Joint Motion) (Grady, Sarah) (Entered: 07/07/2020)

07/07/2020

138 NOTICE of Motion by Sarah Copeland Grady for presentment of motion for miscellaneous relief 137 before Honorable Robert W. Gettleman on 7/15/2020 at 09:15 AM. (Grady, Sarah) (Entered: 07/07/2020)

07/08/2020

139 MINUTE entry before the Honorable M. David Weisman: Plaintiff's unopposed motion to stay briefing and on Sheriff's motion to stay discovery 35 hearing will held on 7/15/2020 at 9:45 a.m. Motion hearing set for 7/10/2020 is stricken. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1877-411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Mailed notice (ao,) (Entered: 07/08/2020)

07/08/2020

140 MOTION by Defendant Dart J Thomas to supplement the Record on Appeal (AGREED) (Attachments: # 1 Exhibit A)(Dierks, Lari) (Entered: 07/08/2020)

07/09/2020

141 ORDER signed by the Honorable Robert W. Gettleman on 7/9/2020: For the reasons set forth in the attached ORDER, the parties' joint motion to extend the preliminary injunction and to stay discovery pending appeal 137 is granted. The court orders all discovery in this case stayed until such time as the Court can take proper action

following the return of the mandate to this Court from the Seventh Circuit Court of Appeal. The Court further orders that Plaintiffs' motion for discovery 135 and the Sheriff's motion to stay discovery pending appeal 129 are withdrawn. Motion presentment hearing set before this court for 7/15/20 is stricken. Mailed notice (cn). (Entered: 07/09/2020)

07/09/2020 142 MINUTE entry before the Honorable Robert W. Gettleman: Agreed motion to supplement the record 140 is granted. Mailed notice (cn). (Entered: 07/09/2020)

07/09/2020

143 MINUTE entry before the Honorable M. David Weisman: Given the stay of discovery, the status hearing set for 7/15/2020 is stricken and reset to 8/26/2020 at 9:15 a.m. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Mailed notice (ao,) (Entered: 07/09/2020)

07/10/2020

144 ORDER Fifth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in-person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in-court proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020: Mailed notice. (Clerk9, Docket) (Entered: 07/10/2020)

07/10/2020

FORWARDED copy of Order dated 7/9/2020 142 to the USCA (pj, ) (Entered: 07/10/2020)

07/13/2020

145 TRANSCRIPT OF PROCEEDINGS held on 6/9/20 before the Honorable M. David Weisman. Order Number: 38652. Court Reporter Contact Information: Nancy LaBella, nlabella.ilnd@gmail.com, (312) 435-6890.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

Redaction Request due 8/3/2020. Redacted Transcript Deadline set for 8/13/2020. Release of Transcript Restriction set for 10/13/2020. (Labella, Nancy) Modified on 7/13/2020 (ef, ). (Entered: 07/13/2020)

07/30/2020 146 MOTION by Defendant Dart J Thomas to supplement the Record on Appeal (Sperry, Gretchen) (Entered: 07/30/2020)

07/31/2020 147 RESPONSE by Jackson Judia, Anthony Maysin Opposition to MOTION by Defendant Dart J Thomas to supplement the Record on Appeal 146 (Grady, Sarah) (Entered: 07/31/2020)

07/31/2020

148 MINUTE entry before the Honorable Robert W. Gettleman: Defendant's emergency motion to supplement the record 146 is denied because the CDC report and the TPR report sought to be included in the record on appeal by defendant were not part of the record before Judge Kennelly when he ruled on the motions currently on appeal. Mailed notice (cn). (Entered: 07/31/2020)

08/17/2020

149 MINUTE entry before the Honorable M. David Weisman: Given the stay of discovery, the status hearing set for 8/26/2020 is stricken and reset to 10/27/2020 at 9:15 a.m. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Mailed notice (ao,) (Entered: 08/17/2020)

09/30/2020

150 CERTIFIED COPY OF OPINION from the USCA for the 7th Circuit; Argued 8/18/2020; Decided 9/8/2020 in USCA case no. 20-1792: We commend Judge Kennelly for his handling of the motion, particularly in light of the many novel issues posed by the onset of COVID-19 and the case's emergent nature. We nevertheless REVERSE in part and VACATE the portion of the preliminary injunction precluding double celling and group housing because of the legal errors that arose as the district court applied the objective reasonableness standard recently announced in Kingsley. We AFFIRM the remainder of the preliminary injunction ruling. (pj, ) (Entered: 09/30/2020)

09/30/2020

151 CERTIFIED COPY OF USCA JUDGMENT dated 9/8/2020 regarding notice of appeal 88 ; USCA No. 20-1792: We commend Judge Kennelly for his handling of the motion, particularly in light of the many novel issues posed by the onset of COVID-19 and the case's emergent nature. We nevertheless REVERSE IN PART and VACATE the portion of the preliminary injunction precluding double celling and group housing because of the legal errors that arose as the district court applied the objective reasonableness standard recently announced in

Kingsley. We AFFIRM the remainder of the preliminary injunction ruling. The above is in accordance with the decision of this court entered on this date. Each side shall bear their own costs. (pj, ) (Entered: 09/30/2020)

09/30/2020 152 MANDATE of USCA dated 9/30/2020 regarding notice of appeal 88 ;USCA No.20-1792 ; No record to be returned. (pj, ) (Entered: 09/30/2020)

10/27/2020

153 MINUTE entry before the Honorable M. David Weisman: Magistrate status hearing held. Parties appeared telephonically and discussed the decision recently issued by the Seventh Circuit in this case. By agreement, the stay of discovery stands. By COB on 11/16/2020, the parties shall file a joint status report. A telephonic status hearing is set for 11/18/2020 at 9:15 a.m. Parties shall dial in using the Court's conference call-in number. The conference call- in number is 1-877411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. Mailed notice (ao,) (Entered: 10/27/2020)

11/16/2020 154 STATUS Report JOINT by Jackson Judia, Anthony Mays (Bowman, Locke) (Entered: 11/16/2020)

11/18/2020

155 MINUTE entry before the Honorable M. David Weisman: Magistrate status hearing held. Parties appeared telephonically. Defendant Dart reported that he intends to seek certiorari from the United States Supreme Court regarding the Seventh Circuit's decision. He anticipates filing any such petition by 1/15/21. (See dkt. 154 .) As discussed, the parties generally agree to stay formal discovery and extend the preliminary injunction with the ability to seek modifications as necessary and are working towards a proposed agreed order to present to the district court. A telephonic status hearing is set for 12/3/2020 at 1:00 p.m. to confirm that the parties have reached such an agreement. To the extent the parties wish this Court to assist in negotiating such an agreement, the Court is available to do so. As explained, due to the current health pandemic and the Eighth Amended General Order 200012, today's court hearing was not recorded on the Court's recording system. Therefore, this order will serve as the official record. See 28 U.S.C. §753(b). Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877-411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date,

therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. Mailed notice (ao,) (Entered: 11/18/2020)

12/03/2020

156 MINUTE entry before the Honorable M. David Weisman: Magistrate status hearing held. Parties appeared telephonically and reported that they have reached an agreement in principle regarding the preliminary injunction and stay of discovery and that they anticipate presenting an agreed order reflecting these terms to the district court within the next week. A telephonic status hearing is set for 12/30/2020 at 10:00 a.m. As discussed, due to the current health pandemic and the Eighth Amended General Order 20-0012, today's court hearing was not recorded on the court's recording system. Therefore, this order will serve as the official record. See 28 U.S.C. §753(b). Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. Mailed notice (ao,) (Entered: 12/04/2020)

12/30/2020

158 MINUTE entry before the Honorable M. David Weisman: Magistrate status hearing held. Parties appeared telephonically and reported on the status of the agreement reached as it relates to the preliminary injunction and stay of discovery. The parties are still revising the agreement and anticipate presenting an agreed order to the district court shortly. By agreement, discovery is stayed pending the presentment of a proposed order to the district court. A telephonic status hearing is set for 1/13/21 at 12:30 p.m. Parties shall dial in using the Court's conference call-in number. The conference call- in number is 1-877411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. Mailed notice (ao,) (Entered: 12/31/2020)

12/31/2020

157 MOTION by Attorney Lari A. Dierks to withdraw as attorney for Dart J Thomas. No party information provided (Dierks, Lari) (Entered: 12/31/2020)

01/04/2021 159 MINUTE entry before the Honorable Robert W. Gettleman: Attorney Lari Dierks' motion to withdraw appearance 157 is granted. Mailed notice (cn). (Entered: 01/04/2021)

01/07/2021

160 MINUTE entry before the Honorable M. David Weisman: On the Court's own motion, the status hearing set for 1/13/21 will begin at 1:15 p.m. rather than 12:30 p.m. Defense counsel shall make arrangements for Plaintiff to appear by phone using the Court's call in number. The conference call-in number is 1-877-411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. Mailed notice (ao,) (Entered: 01/07/2021)

01/13/2021 161 MOTION by Defendant Dart J ThomasParties' Joint Motion to Extend the Preliminary Injunction and to Stay Discovery Pending Petition for Certiorari (Lydon, James) (Entered: 01/13/2021)

01/13/2021

162 NOTICE of Motion by James Matthias Lydon for presentment of motion for miscellaneous relief 161 before Honorable Robert W. Gettleman on 1/21/2021 at 09:15 AM. (Lydon, James) (Entered: 01/13/2021)

01/13/2021

163 MINUTE entry before the Honorable M. David Weisman: Magistrate status hearing held. Parties appeared telephonically and discussed the parties' joint motion to extend the preliminary injunction and to stay discovery pending petition for certiorari 161 . Parties shall file a joint status report by 3/15/21. A telephonic status hearing is set for 3/22/21 at 9:15 a.m. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877-411-9748 and the passcode is 1814539. Please note that the Court's conference call-in will be used by all cases that are on the Court's calendar for the said date, therefore counsel must be in a quiet area while on the line and must have the telephone muted until your case is called by the Court. Once the Court has heard your case you shall disconnect from the conference line. Mailed notice (ao,) (Entered: 01/13/2021)

01/13/2021

164 MINUTE entry before the Honorable Robert W. Gettleman: Parties' joint motion to extend the Preliminary Injunction and to stay discovery pending Petition for Certiorar 161 is granted. Notice presentment hearing set for 1/21/2021 is stricken. The parties are reminded that under the General Orders and as set forth on this court's web page, "[p]arties are not to schedule motion presentment hearings." Mailed notice (cn). (Entered: 01/13/2021)

01/18/2021

165 MOTION by Plaintiffs Jackson Judia, Anthony Mays for order (amended order) extending the preliminary injunction and staying discovery (Attachments: # 1 Proposed Order)(Grady, Sarah) (Entered: 01/18/2021)

01/19/2021

166 MINUTE entry before the Honorable Robert W. Gettleman: Joint motion for entry of amended order extending the preliminary injunction and to stay discovery 165 is granted. Enter Order. Mailed notice (cn). (Entered: 01/19/2021)

01/19/2021 167 ORDER Signed by the Honorable Robert W. Gettleman on 1/19/2021. Mailed notice (cn). (Entered: 01/19/2021)

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 Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 1 of 16 PageID #:98

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 20-cv-2134

PLAINTIFFS’ MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION
Plaintiff-Petitioner Anthony Mays and Plaintiff-Petitioner Judia Jackson, as the next friend of Kenneth Foster, on behalf of themselves and the classes they seek to represent, hereby respectfully request that this Court grant their motion for class certification, appoint them as named plaintiffs in this litigation, and appoint their undersigned attorneys as class counsel.
INTRODUCTION The spread of COVID-19 throughout the world has created an unprecedented health crisis. Public health officials throughout the country have implored the general public to exercise social distancing and improved hygiene practices in an effort to curb the threat of the deadly virus. But people in Defendant Sheriff Tom Dart’s custody cannot distance themselves from others and they cannot exercise improved hygiene. COVID-19 has already infected people in Dart’s custody. Dart has failed to take reasonable measures to stop the spread of COVID-19. And every single person in his custody faces a risk of death or serious harm as a result.

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 2 of 16 PageID #:99
CLASS DEFINITION This federal class action seeks to require Dart to implement procedures that provide reasonable medical care for Plaintiffs and keep them reasonably safe from contracting communicable disease while in custody. But some people are so vulnerable to COVID-19 that no procedures could be implemented fast enough to protect them; these people must be released immediately, and they seek a writ of habeas corpus ordering just that. At the same time, some people are being housed in units with known exposure to the coronavirus; these people are entitled to be transferred to a unit without such exposure. Plaintiffs, therefore, seek to certify one class with two subclasses as follows: • The Whole Class is defined as “all people detained in the Cook County jail who are not detained pursuant to a judgment of conviction.” • Subclass A is defined as “People in custody who have vulnerabilities that place them in heightened risk of contracting serious COVID 19, including persons over the age of 65 and persons with underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions including chronic lung disease or moderate to severe asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other condition or related to treatment for a medical condition; people with chronic liver or kidney disease or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; people who have had or are at risk of stroke; and people with any other condition specifically identified by CDC
2

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 3 of 16 PageID #:100
either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19” • Subclass B is defined as “all Class members who are currently being housed on a tier where a person with a diagnosed case of COVID-19 is or has been housed.”
BACKGROUND AND SUMMARY OF ARGUMENT Plaintiffs’ suit for injunctive relief under the Fourteenth Amendment, and Subclass A’s petition for habeas corpus, arise from Dart’s failure to protect them from the severe risk of death or serious physical harm. Those risks effect each Class and Subclass member identically. This Court should, therefore, certify the Class and Subclasses. The claims of the class and subclasses are ideally suited to proceed as a class action under Federal Rule of Civil Procedure 23(b)(2) and as an analogous class habeas proceeding under Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975), in which the Seventh Circuit held that “a representative procedure analogous to the class action provided for in Rule 23 may be appropriate in a habeas corpus action under some circumstances.”1 This is so because (a) every member of the class and subclasses have the same legal theory as to why their federal rights are being violated; (b) Dart’s failure to take reasonable measures to protect them violates the rights of every Class member; (c) every Class member will use similar or overlapping evidence in support of his or her cause of action; and (d) every member of the class seeks a uniform injunction or writ of habeas corpus requiring Dart to take immediate to protect them from a grave risk of death or harm. In other words, each representative shares all legal claims with the Class or
1Although the Supreme Court has not squarely decided whether Rule 23 of the Federal Rules of Civil Procedure “is applicable to petitions for habeas corpus relief,” on several occasions the Court has decided class action habeas petitions. Schall v. Martin, 467 U.S. 253, 261 n.3 & 10 (1984) (declining to address the issue and accepting district court’s certification of the class; reversing lower courts’ holding that preventive detention of juveniles was unconstitutional); Middendorf v. Henry, 425 U.S. 25, 30 (1976) (declining to decide whether class action habeas petitions are cognizable; refusing to grant relief).
3

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 4 of 16 PageID #:101
Subclass she seeks to represent, each Class or Subclass’s evidence will be identical in support of those claims, and the Class representatives seek the same relief as the Class or Subclass they seek to represent.
In addition to commonality, the class and subclasses easily satisfy the other requirements of Rule 23(a), as well as the requirements of Rule 23(b)(2). (The requirements for a class habeas proceeding are materially identical. Bijeol, 513 F.2d at 968. Joinder is impracticable because the number of people in Dart’s custody exceeds 5,000 on any given day, and each Subclass contains hundreds, and sometimes thousands, of people.
The claims of the named Plaintiffs are typical of those of the class as a whole. As the supporting declarations to the Complaint make clear, see Complaint, ECF 1, at 17-19, that typicality stems from their claim that Dart has placed them at significant risk of harm by failing to take appropriate steps to address the high and significant risk of COVID-19 throughout the jail.
Named Plaintiffs have no conflicts with the unnamed members of the proposed class. Their lawyers are experienced in federal-court civil-rights class actions, particularly those involving prisons and jails. Thus, named Plaintiffs and their counsel will adequately represent the interests of the proposed class.
Finally, Dart has refused to act in a manner that applies generally to the class as a whole, rendering class-wide injunctive relief appropriate under Federal Rule of Civil Procedure 23(b)(2), and a classwide writ of habeas corpus appropriate under Bijeol, 513 F.2d at 968.
ARGUMENT For a district court to certify a class action, the proposed class must satisfy the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a) and at least one
4

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 5 of 16 PageID #:102

requirement of Rule 23(b).2 Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Because

the proposed Class and Subclasses meet all four Rule 23(a) requirements and the requirements of

Rule 23(b)(2), this Court should certify Plaintiffs’ proposed Class. Rule 23(c)(5) further allows

for a class to be divided into subclasses, where the subclasses are treated as a class under Rule

23. See Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 368 (7th Cir. 2012). As

demonstrated below, each subclass additionally meets all requirements of Rule 23(a) and Rule

23(b) and this Court should similarly certify each of Plaintiffs’ proposed subclasses.

I.

Plaintiffs Satisfy Rule 23(a): They Are Numerous and Raise Common Questions,

and the Named Plaintiffs Are Adequate Representatives With Typical Claims.

A. Numerosity is Satisfied: The Class and Subclasses Each Include Hundreds if Not Thousands of Members.

Federal Rule of Civil Procedure 23(a)(1) requires that the class be “so numerous that

joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[A] class including more than

40 members is generally believed to be sufficient.” Barragan v. Evanger's Dog & Cat Food Co.,

259 F.R.D. 330, 333 (N.D. Ill. 2009); Streeter v. Sheriff of Cook Cty., 256 F.R.D. 609, 612 (N.D.

Ill. 2012) (same); accord William B. Rubenstein, et al., Newberg on Class Actions, § 3:12 (5th

ed. 2011) (“[A] class of 40 or more members raises a presumption of impracticability of joinder

based on numbers alone”). Numerosity is easily satisfied here. Dart is currently holding

approximately 4,770 people in his custody. The threat posed by COVID-19 is such that every

person in Dart’s custody faces the risk of significant harm. Everyone is at risk of transmission of

COVID-19. There is no available vaccine to protect against infection from COVID-19 and no

medications approved to treat it. People in congregate environments such as jails, which are

2 Because the requirements are materially identical in this context, Plaintiffs refer to Rule 23 as the governing standard. See Kazarov v. Achim, No. 02 C 5097, 2003 WL 22956006, at *3 (N.D. Ill. Dec. 12, 2003) (analyzing petition for representative habeas action by determining whether the “Federal Rule of Civil Procedure 23 factors are met and that a representative action is appropriate”).
5

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places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by the rapid spread of the virus in cruise ships and nursing homes. The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of the infection is unknown.
The proposed subclasses also easily meet the numerosity threshold. Subclass A is comprised of people who are medically vulnerable to COVID-19 because of underlying medical conditions—including people who live with diabetes and asthma, among other conditions. People of any age who suffer from certain underlying medical conditions, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorder (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma, are at elevated risk as well. The WHO-China Joint Mission Report indicates that the mortality rate from COVID-19 for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.3
According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.”4 One study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension.5 Based
3 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, available at https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf (last visited Apr. 1, 2020).
4 Elizabth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019).
5 Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
6

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on these estimates and assuming some overlap in these diagnoses, a fair estimate of the number of people who live with one or more of these medical vulnerabilities exceeds one thousand.
Subclass B is defined as all people who are housed on a tier that is or has been exposed to someone with a known coronavirus diagnosis. At the time of the filing of this Motion, at least 164 detainees and 46 staff members has tested positive for coronavirus. This almost certainly underestimates the number of actual cases by a factor of three or four, as explained in the contemporaneously filed Complaint and Motion for a Preliminary Injunction. But even if it did not, large swaths of the jail have already been exposed to the virus, and must be thoroughly deep cleaned in order to be safe for human habitation. Hundreds of people, if not thousands, are currently confined in these swaths of the jail.
The class and subclasses are too numerous for joinder to be considered practicable. B. Commonality is Satisfied: The Legality of Dart’s Response to the Pandemic
Involves Numerous Common Questions of Fact and Law. Rule 23(a)(2) requires that “there [be] questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement.” Rosario, 963 F.2d at 1018; Streeter, 256 F.R.D. at 612 (same). “Rule 23 must be liberally interpreted” and should be read to favor maintenance of class actions, King v. Kan. City S. Indus., 519 F.2d 20, 25-26 (7th Cir. 1975); Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D. Ill. 1992) (“[T]he commonality requirement has been characterized as a ‘low hurdle’ easily surmounted.”). Plaintiffs must demonstrate that there is “some glue” holding the claims together; the class claims “must depend upon a common contention” that is “of such a nature that it is capable of classwide resolution.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). (“What matters to class certification . . . is not the raising of common questions . . . but, rather the
7

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 8 of 16 PageID #:105
capacity of a classwide proceeding to generate common answers . . .”) (citations and quotations omitted; emphasis and first ellipsis in original). In many post-Walmart cases, district courts have found that systemic constitutional challenges to prison and jail conditions provide the “glue” necessary to hold a class together. E.g., Olson v. Brown, 284 F.R.D. 398, 410-11 (N.D. Ind. 2012) (jail policies and conditions); Ross v. Gossett, 2020 WL 1472072, at *3-4 (S.D. Ill. Mar. 26, 2020) (unconstitutional practices regarding shakedowns); Rosas v. Baca, 2012 WL 2061694, at *3 (C.D. Cal. June 7, 2012) (jail violence case); Jones v. Guzman, 296 F.R.D. 416, 465-66 (E.D. La. 2013) (jail violence case); Hughes v. Judd, 2013 WL 1821077, at *23 (M.D. Fla. Mar. 27, 2013) (unconstitutional conditions for juvenile detainees); M.D. v. Perry, 294 F.R.D. 7, 35 (S.D. Tex. 2013) (foster children facing abuse); Parsons v. Ryan, 289 F.R.D. 513, 516-23 (D. Ariz. 2013) (inadequate medical and mental health care in state prisons); Butler v. Suffolk Cnty., 289 F.R.D. 80, 98 (E.D.N.Y. 2013) (jail sanitation case); Abadia-Piexoto v. United States Dep’t of Homeland Sec., 277 F.R.D. 572, 577 (N.D. Cal. 2011) (shackling of detainees during judicial proceedings).
As the Supreme Court explained in Wal-Mart, “for purposes of Rule 23(a)(2) [e]ven a single [common] question will do . . .” 564 U.S. at 359 (citation and internal quotations omitted; alterations in original). Here, Plaintiffs allege that all members of the proposed Class are at significant risk of contracting a fatal illness due to Dart’s systemic failure to implement policies and practices necessary to protect them. The questions of law and fact common to the class and each subclass are the following:
(1) Does COVID-19 present a substantial risk of harm to people in Dart’s custody?
8

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 9 of 16 PageID #:106
(2) Does COVID-19 present a risk of harm so severe to some people that the only Constitutionally permissible way to protect them is to release them from custody immediately?
(3) Do people detained in areas known to be exposed to a deadly pathogen have a right to be transferred to another place that is not so exposed?
Resolving these questions will yield exactly the kind of “common answer” to Plaintiffs’ Eighth and Fourteenth Amendment claims that the Supreme Court requires. See Wal-Mart, 564 U.S. at 351.
An injunctive challenge to a systemic failure to protect class members from significant harm is a textbook example of a case that satisfies the commonality requirement and warrants class certification. Indeed, “[a] class action is . . . an appropriate vehicle to address what is alleged to be a systemic problem.” Coleman v. County of Kane, 196 F.R.D. 505, 507 (N.D. Ill. 2000) (finding commonality in case against sheriff regarding bond fees). Plaintiffs here challenge Dart’s systemic failure to respond reasonably to the deadly threat of COVID-19. The commonality requirement is therefore easily met. See Corey H. v. Bd. of Educ. of City of Chi., 2012 WL 2953217, at *7 (N.D. Ill. Jul. 19, 2012) (“Plaintiffs have attacked . . . systemic failures and district-wide policies that apply to every member of the certified class.”).
C. Typicality is Satisfied: The Named Plaintiffs’ Claims are Representative of Those of the Class at Large.
Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The standard for determining typicality is not an identity of interest between the named plaintiffs and the class, but rather a “sufficient homogeneity of interest.” See, e.g., Jones v. Blinziner, 536 F. Supp. 1181, 1190 (N.D.
9

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 10 of 16 PageID #:107
Ind. 1982) (citing Sosna v. Iowa, 419 U.S. 393, 403 n.13 (1975)). “[T]he typicality requirement is liberally construed.” Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996).
In this case, the claims of the Plaintiffs are typical of the Class and of each Subclasses that they represent. See Fonder v. Sheriff of Kankakee County, 2013 WL 5644754, at *6 (C.D. Ill. Oct. 15, 2013) (typicality satisfied where “Plaintiff is challenging the same strip search policy as the class he seeks to represent”); Olson, 284 F.R.D. at 411 (typicality satisfied where class representative and members of proposed class had legal mail opened improperly by correctional officers); Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 24-25 (2d Cir. 1971) (finding typicality in lawsuit challenging excessive force by guards, despite individual factual differences); Ingles v. City of New York, 2003 WL 402565, at *5 (S.D.N.Y. Feb. 20, 2003) (same); Anderson v. Garner, 22 F. Supp. 2d 1379, 1385 (N.D. Ga. 1997) (finding typicality in prison excessive force case even though “when compared to the Plaintiffs’ claims, the unnamed class members may have suffered different injuries under different circumstances”). Every member of the class faces a substantial risk of contracting COVID-19 if immediate measures are not implement. Some people, like the medically vulnerable members of Subclass A, are at imminent risk of death or severe harm if they are not released.
Of course “[t]ypical does not mean identical.” Gaspar, 167 F.R.D. at 57; see also De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (“The typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members.”), overruled on other grounds, Green v. Mansour, 474 U.S. 64 (1985); Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (same). Thus, the typicality requirement is satisfied when the representative’s injuries arise from the same practice affecting the rest of the class, even if factual differences exist. Streeter, 256 F.R.D.
10

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 11 of 16 PageID #:108
at 612-13 (certifying class of detainees strip searched upon entry to Cook County Jail, despite the Sheriff’s argument that there were differences in the circumstances of each search “because the likelihood of some range of variation in how different groups of . . . detainees were treated does not undermine the fact that the claims of each class [member] share a common factual basis and legal theory.” (internal quotation marks omitted)); Areola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008) (typicality satisfied where plaintiff was in the “same boat” as other Cook County Jail detainees who had been denied crutches); Parish v. Sheriff of Cook County, 2008 WL 4812875, at *4 (N.D. Ill. Oct. 24, 2008) (certifying class of Cook County Jail detainees who were denied adequate medical care and rejecting the Sheriff’s argument that commonality did not exist because “the named plaintiffs’ claims vary as to the type of illness complained of and the type of medication at issue”); Bullock v. Sheahan, 225 F.R.D. 227, 230 (N.D. Ill. 2004) (“[p]otential factual differences” relating to individual searches held insufficient to defeat typicality in a jail strip search case).
The overarching nature of the threat of COVID-19 to every person confined in Dart’s custody is sufficient to satisfy typicality. For Subclass A, each person claims that she must be released because her health is at imminent and immediate risk from the same virus and same policy failures as each other person in Subclass A. And for Subclass B, each person claims an identical potential exposure to an identical pathogen and seeks identical relief. Both Plaintiffs allege that they are (a) in the jail, (b) medically vulnerable, and (c) housed on a tier where another detainee has tested positive for coronavirus. These mirror the allegations of the many declarants, both those in and recently released from the Jail, who have and are suffering the same harms as the Class Representatives—exposure to COVID-19 positive or symptomatic detainees, lack of cleaning supplies and sanitizing agents, lack of personal protective equipment (PPE),
11

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 12 of 16 PageID #:109
inability to engage in social distancing or indeed any distancing in dorm and double-celling living quarters with shared shower and bathroom areas, a lack of adequate medical care including for detainees with symptoms of COVID-19, and a lack of clean shared living spaces. In this way, the claims of the Class Representatives are typical of the claims of those they seek to represent. See Complaint, ECF 1, at 17-19.
D. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class and Subclasses.
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “This adequate representation inquiry consists of two parts: (1) the adequacy of the named plaintiffs as representatives of the proposed class’s myriad members, with their differing and separate interests, and (2) the adequacy of the proposed class counsel.” Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011). All Plaintiffs here are represented by counsel experienced in the protection and enforcement of constitutional and statutory rights. Plaintiffs each have a strong personal stake in the proceedings that will “insure diligent and thorough prosecution of the litigation.” Rodriguez v. Swank, 318 F. Supp. 289, 294 (N.D. Ill. 1970), aff'd, 403 U.S. 901 (1971).
1. Absence of Conflict within the Class The two Named Plaintiffs in this case are set forth below: • Plaintiff-Petitioner Anthony Mays is a detainee in Cook County Jail. He has diabetes and had been referred for an evaluation of a heart condition when COVID-19 hit the jail. He is housed in Division 8, in an open-dormitory setting. Multiple detainees on his tier have been removed after testing positive for COVID-19. • Plaintiff-Petitioner Kenneth Foster is a detainee at Cook County Jail. This action is brought on Mr. Foster’s behalf by his next friend, Judia Jackson. Ms. Jackson is aware of
12

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 13 of 16 PageID #:110

Mr. Foster’s wishes with respect to this action. Ms. Jackson is serving as next friend

because the undersigned counsel attempted to contact Mr. Foster by telephone within the

Cook County Jail, but were unable to do so due to the Jail’s operational difficulties

arising out of the COVID-19 pandemic. See Declaration of Alison Horn (Ex. A). Mr.

Foster has stomach cancer, Lung-Sarcoidosis, high blood pressure, asthma, and

bronchitis. He is living in a dorm setting in Division 2. Mr. Foster estimates that five or

six people from his tier have tested positive for COVID-19. The people who tested

positive for the virus were removed from the dorm.

Named Plaintiffs have no known conflicts with other class members and they are willing and

able to serve as named Plaintiffs in this Action.

2. Adequacy of Representation

Plaintiffs’ counsel are eminently qualified, experienced in conducting federal class action

litigation, and have adequate resources to undertake the proposed litigation to its resolution.

Plaintiffs are represented by attorneys from Loevy & Loevy, the Roderick and Solange

MacArthur Justice Center, and Civil Rights Corps. Counsel’s qualifications are more explicitly

set forth in the attached declarations. See Declaration of Stephen Weil (Ex. B), Declaration of

Alexa A. Van Brunt (Ex. C), Declaration of Locke E. Bowman (Ex. D), Declaration of Charles

Gerstein (Ex. E).

II.

Plaintiffs Satisfy Fed. R. Civ. P. 23(b)(2): This Case Seeks an Injunction Against and

Writ of Habeas Corpus Seeking Relief From Conditions that Place the Entire

Proposed Class at Risk of Serious Illness and Death.

The final requirement for class certification is satisfaction of at least one of the

subsections of Rule 23(b). Subsection (b)(2) requires that “the party opposing the class has

acted or refused to act on grounds generally applicable to the class, thereby making appropriate

13

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 14 of 16 PageID #:111
final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). Courts have repeatedly held that civil-rights class actions are the paradigmatic 23(b)(2) suits, “for they seek classwide structural relief that would clearly redound equally to the benefit of each class member.” Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979), vacated on other grounds, 442 U.S. 915 (1979); see also Johnson v. General Motors Corp., 598 F.2d 432, 435 (5th Cir. 1979). As stated in the leading treatise on class actions:
Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits. Most class actions in the constitutional and civil rights areas seek primarily declaratory and injunctive relief on behalf of the class and therefore readily satisfy Rule 23(b)(2) class action criteria. A. Conte & H. Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002). In addition, the Seventh Circuit has recognized that prisoners, because of many factors “may not . . . [be] in a position to seek . . . [relief] on their own behalf,” and that this fact militates in favor of class certification. United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976). Injunctive challenges to prison and jail conditions routinely proceed as class actions. See, e.g., Brown v. Plata, 563 U.S. 493, 506 (2011); Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 374 (1992); Jones 'El v. Berge, 374 F.3d 541 (7th Cir. 2004); Bruscino v. Carlson, 854 F.2d 162, 164 (7th Cir. 1988); Hadi v. Horn, 830 F.2d 779, 781 (7th Cir. 1987); French v. Owens, 777 F.2d 1250, 1251 (7th Cir. 1985); Jones v. Diamond, 519 F.2d 1090, 1097 (5th Cir. 1975) (“Realistically, class actions are the only practicable judicial mechanism for the cleansing reformation and purification of these penal institutions.”); Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) (noting that subsection (b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief”); Bradley v. Harrelson, 151 F.R.D. 422, 427 (M.D. Ala. 1993) (stating that subsection (b)(2) “is particularly applicable to suits such as the one sub judice which involve conditions of confinement in a correctional institution”). Here, the practice of high-level officials
14

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 15 of 16 PageID #:112
failing to take reasonable measures to abate the deadly threat posed by COVID-19 places all class members at risk of serious illness or death. Rule 23(b)(2) is accordingly satisfied.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court the certify the Class and Subclasses as defined in this Motion.
Respectfully submitted,
/s/ Alexa Van Brunt Counsel for Plaintiffs
Stephen H. Weil Sarah Grady Loevy & Loevy 311 N. Aberdeen Chicago, IL 60607 Tel: 312-243-5900 Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue, Chicago, IL 60611 (312) 503-0884 Charles Gerstein (pro hac vice application forthcoming) Alec Karakatsanis (pro hac vice application forthcoming) Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 202-894-6128
15

Case: 1:20-cv-02134 Document #: 6 Filed: 04/03/20 Page 16 of 16 PageID #:113
CERTIFICATE OF EMERGENCY SERVICE
I, Alexa Van Brunt, an attorney, hereby certify that on April 3, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on General Counsel for the Cook County Sheriff's Office, as well as the Division Chief and Supervisor of the Special Litigation Section, and the Division Chief of the Complex Litigation Division, of the Cook County State's Attorney's Office via email.
/s/ Alexa A. Van Brunt Alexa A. Van Brunt

Case: 1:20-cv-02134 Document #: 6-1 Filed: 04/03/20 Page 1 of 2 PageID #:114

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 20-cv-2134

DECLARATION OF ALISON HORN
I, Alison Horn, hereby declare as follows:
1. I am the Investigative Supervisor at Civil Rights Corps. I have held this position since April 2018.
2. On the morning of April 3, 2020, I attempted to schedule legal telephone calls with seven people in the custody of the Cook County Department of Corrections (CCDOC).
3. I reviewed email correspondence from CCDOC Associate General Counsel Tracey Thompson regarding the procedures for scheduling legal telephone calls with persons detained at CCDOC.
4. In accordance with the instructions from Ms. Thompson, and on behalf of Civil Rights Corps Attorney Charles Gerstein, I completed one copy of the form entitled “Cook County Sheriff’s Office Request for Attorney-Client Privileged Telephone Calls” for each of the seven incarcerated people with whom Mr. Gerstein was requesting legal calls.
5. I emailed the completed forms to CCSO.legalvisit@cookcountyil.gov in two separate emails.
6. In the first email, sent at 8:45AM CDT, I requested legal telephone calls between Mr. Gerstein and Charles Wimberly, Booking # 20200209107, Christopher Ziegler, Booking # 20190705184, Anthony Mays, Booking # 20190104199, and Sharita Parks, Booking # 20191004148 for April 3, 2020 between 12:00PM and 2:00PM CDT.
7. In the second email, sent at 8:46AM CDT, I requested legal telephone calls between Mr. Gerstein and Brandon Mathis, Booking # 20200229173, Sean Alexander, Booking # 20200227046, and Kenneth Foster, Booking # 20200214120 for April 3, 2020 between 2:00PM and 4:00PM.

Case: 1:20-cv-02134 Document #: 6-1 Filed: 04/03/20 Page 2 of 2 PageID #:115

8. I received a response by email from the Cook County Sheriff’s office that stated, “I’m sorry but due to operational difficulties with the pandemic all calls need to be scheduled 48 hours in advance with a two hour window for each individual. Please let me know the time and date you would like to schedule these calls.”
9. Following the receipt of this email, I spoke by telephone with Cook County Department of Corrections Associate General Counsel Tracey Thompson on the telephone regarding the requested legal telephone calls.
10. During my telephone call with Ms. Thompson, she informed me that Mr. Gerstein would be required to schedule legal telephone calls two business days in advance of the date of the requested calls.
I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

_/s/ Alison Horn_____________________ Signed

April 3, 2020 Dated

Case: 1:20-cv-02134 Document #: 6-2 Filed: 04/03/20 Page 1 of 3 PageID #:116

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 1:20-cv-2134

DECLARATION OF STPEHEN H. WEIL I, Stephen H. Weil, counsel for the Plaintiffs in the above-captioned case, state that the following is true and correct to the best of my knowledge: 1. I am an attorney with the law firm of Loevy & Loevy in Chicago. I submit this declaration in support of the Plaintiffs’ motion for class certification. 2. Loevy & Loevy regularly engages in complex litigation, including complex class actions, many of which raise claims under 42 U.S.C. § 1983 for violations of constitutional rights. Loevy & Loevy has the resources and experience necessary to conduct litigation of this nature, and has experience prosecuting class actions of similar size, scope, and complexity to this case. 3. Attorneys at Loevy & Loevy have been appointed numerous times as class counsel, including in Marconi v. City of Joliet, Case No. 10-MR-0165 (Circuit of Will

Case: 1:20-cv-02134 Document #: 6-2 Filed: 04/03/20 Page 2 of 3 PageID #:117
County, Ill.) (class action alleging violations of collective bargaining agreement and the Illinois Constitution brought by employees of the City of Joliet); Aranda v. Carribbean Cruise Line, No. 12 C 4096 (N.D. Ill.) (class action alleging violations of the TCPA by consumers); Dobbey v. Jeffreys, No. 13 C 1068 (N.D. Ill.) (class action seeking injunctive relief to remedy unconstitutional conditions of confinement at Stateville Correctional Center); Dunn v. City of Chicago, No. 04 C 6804 (N.D. Ill.) (class action alleging unconstitutional treatment of detainees in Chicago Police Department lockups); Flood v. Dominguez, No. 08 C 0153 (N.D. Ind.) (class action alleging unconstitutional conditions at the Lake County Jail); Solon v. Midwest Medical Records Association, No. 04-CH-7119 (Cook Cnty. Cir. Ct.) (consumer class action); Ross v. Gossett, No. 15 C 0309 (S.D. Ill.) (class action alleging unconstitutional shakedown procedures at four downstate Illinois prisons); Throgmorton v. Reynolds, No. 12 C 3087 (C.D. Ill.) (class action alleging unconstitutional strip search at Lincoln Correctional Center); Young v. County of Cook, No. 06 C 0552 (N.D. Ill.) (class action alleging unconstitutional strip search of detainees at Cook County Jail).
4. I have been an attorney for 15 years, and practicing as a civil rights litigator focused on the criminal legal system since 2014.
5. I am a member in good standing of the bar of State of Illinois. 6. Loevy & Loevy has sufficient funds available to finance the costs of this litigation, and the ongoing monitoring required to protect the interests of the class.

Case: 1:20-cv-02134 Document #: 6-2 Filed: 04/03/20 Page 3 of 3 PageID #:118 I declare under penalty of perjury that the foregoing is true and correct.

Date: April 3, 2020

/s/ Stephen H. Weil _______________________ Stephen H. Weil Loevy & Loevy 311 N. Aberdeen Street Third Floor Chicago, IL 60607 312-243-5900 weil@loevy.com

Case: 1:20-cv-02134 Document #: 6-3 Filed: 04/03/20 Page 1 of 4 PageID #:119

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 20-cv-2134

DECLARATION OF ALEXA A. VAN BRUNT I, Alexa Van Brunt, counsel for the Plaintiffs in the above-captioned case, state that the following is true and correct to the best of my knowledge: 1. I am a Clinical Assistant Professor of Law at the Northwestern University Pritzker School of Law, and Director of the Roderick and Solange MacArthur Justice Center Clinic and Northwestern. I submit this declaration in support of the Plaintiffs’ motion for class certification. 2. The Roderick and Solange MacArthur Justice Center is a nationally-renowned civil rights litigation firm, with offices in five states including Chicago, which is the organization’s headquarters. The non-profit organization is dedicated to eradicating injustice in the criminal system, and advocating for de-incarceration, racial justice, and fairness in policing, pre-trial detention, the operation of prisons and jails, and post-incarceration practices. The MacArthur Justice Center has been at the forefront of efforts to dismantle the death penalty, ensure the release of youth sentenced to spend the rest of their lives in prison, and seek

Case: 1:20-cv-02134 Document #: 6-3 Filed: 04/03/20 Page 2 of 4 PageID #:120
compensation for those wrongfully convicted as a result of egregious state and law enforcement misconduct.
3. I have been an attorney for 11 years, and practicing as a civil rights litigator focused on the criminal legal system since 2010.
4. For the past ten years, my law practice has focused almost exclusively on protecting the rights of children and adults in the Illinois criminal justice system, particularly those who are subject to law enforcement misconduct or constitutional violations in the State’s jails and prisons. I have brought civil rights actions in both federal and state courts in the State and nationwide.
5. I have previously brought class action litigation challenging the detention of pretrial detainees in the Cook County Jail based on their inability to afford cash bail bond (Robinson v. Martin et al., 2016 CH 13587 (Cir. Ct. Ck. Cty.)). With Locke Bowman, one of my co-counsel in this suit, I recently authored a law review article concerning the unconstitutional use of cash bond in pretrial legal systems. See Alexa Van Brunt and Locke E. Bowman, Toward a Just Model of Pretrial Release: A History of Bail Reform and a Prescription for What's Next, 108 J. CRIM. L. & CRIMINOLOGY 701 (2018).
6. I have participated as lead counsel in class action suits challenging parole revocation procedures in the State of Illinois, including: Morales v. Monreal, No. 13cv7572 (N.D.Ill); King v. Walker, No. 06cv204 (N.D. Ill); and M.H. v. Monreal et al., No. 12cv8523 (N.D. Ill.). All three settled after negotiations with the State of Illinois, and resulted in significant procedural protections for parolees in Illinois. The M.H. and Morales settlements, in particular, resulted in the appointment of state-funded counsel to adults and youth facing the revocation of

Case: 1:20-cv-02134 Document #: 6-3 Filed: 04/03/20 Page 3 of 4 PageID #:121
their parole. In May 2017, I received the Federal Bar Association’s Award for Excellence in Pro Bono Service for the Morales litigation.
7. I have also served as lead counsel on a variety of wrongful conviction compensation and police misconduct damages suits in federal court, including litigation brought on behalf of the victims of the Jon Burge police torture scandal and other police misconduct in Chicago and throughout the State of Illinois. See, e.g., Johnson v. Cassidy et al., No. 18-cv-1062, Finch v. City of Wichita, No. 18-cv-1018-JWB-ADM (D. Kan.), Taylor v. City of Chicago et al., No. 14cv737 (N.D. Ill.); Taylor v. Kachiroubas et al., No. 12cv8321 (N.D. Ill.); Swift v. City of Chicago et al., 12-L-012995 (Cir. Ct. Ck. Cty. 2012), Wilson v. O’ Brien et al., No. 07cv3994 (N.D. Ill.); Kitchen v. Burge, No. 10cv4093 (N.D. Ill.); Beaman v. Souk et al., No. 10cv1019 (C.D. Ill.); and Cannon v. Burge et al., No. 05cv2192 (N.D. Ill.). Almost all of these have resulted in multi-million dollar settlements in favor of the plaintiffs.
8. In addition, I have served as trial counsel in other civil rights suits addressing the following issues: conflicts of interest within the Cook County State’s Attorney’s Office in connection with the David Koschman homicide (In re Petition for Appointment of Special Prosecutor, No. 2011 Misc. 46 (Cir. Ct. Ck. Cty.)); prisoners’ rights in Illinois correctional facilities (e.g., Fontano v. Godinez et al., No. 12cv3042 (C.D. Ill.); Hudson v. Preckwinkle et. al., No. 13cv8752 (N.D. Ill.)); and post-conviction relief for men who were convicted based on coerced and tortured confessions obtained under the Jon Burge regime (Class Action Petition for Relief Under the Illinois Post-Conviction Hearing Act, Nos 91 CR 21451, 84 C 01010801 (Cir. Ct. Ck. Cty)).
9. Prior to working at the MacArthur Justice Center, I attended Stanford Law School, where I received a J.D. with Distinction in 2009. I thereafter clerked for the Hon. Myron

Case: 1:20-cv-02134 Document #: 6-3 Filed: 04/03/20 Page 4 of 4 PageID #:122
H. Thompson in the Middle District of Alabama. Prior to law school I worked as a social worker and project manager at Bronx Community Solutions, part of the Center on Court Innovation, located in the Bronx Courthouse in New York.
10. I am a member in good standing of the bar of State of Illinois. 11. The MacArthur Justice Center has sufficient funds available to finance the costs of this litigation, and the ongoing monitoring required to protect the interests of the class. I declare under penalty of perjury that the foregoing is true and correct.

Date: April 3, 2020

____________________ Alexa A. Van Brunt, ARDC #6301074 Roderick and Solange MacArthur Justice Center Northwestern University Pritkzer School of Law 375 E. Chicago Avenue, 8th Floor Chicago, Illinois 60611 (312) 503-1336

Case: 1:20-cv-02134 Document #: 6-4 Filed: 04/03/20 Page 1 of 17 PageID #:123

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 20-cv-2134

DECLARATION OF LOCKE E. BOWMAN
1. I am an attorney licensed to practice law in the State of Illinois. I was admitted to practice in 1982. From 1982 to 1984, I served as a judicial law clerk to the Hon. Hubert L. Will of the Northern District of Illinois. I have been an associate in a major law firm (Mayer, Brown & Platt, 1984-1987); an Assistant Corporation Counsel for the City of Chicago during the administration of Mayor Harold Washington (1987-1988); and an associate and then a partner at the firm of Silets & Martin, Ltd., which specialized in federal criminal defense litigation (19881992).
2. Since 1992, I have been the Director of the Roderick and Solange MacArthur Justice Center, a public interest law firm that litigates cases of systemic importance for the criminal legal system. Our practice is described on our website: https://www.macarthurjustice.org/

Case: 1:20-cv-02134 Document #: 6-4 Filed: 04/03/20 Page 2 of 17 PageID #:124

3. During my 27 plus years at the MacArthur Center, I have litigated many class actions, some of which are described on the curriculum vitae, which is attached and incorporated in this declaration.

I declare under penalty of perjury that the foregoing is true and correct.

April 3, 2020 Evanston, Illinois

/s/ Locke E. Bowman

Case: 1:20-cv-02134 Document #: 6-4 Filed: 04/03/20 Page 3 of 17 PageID #:125
Curriculum Vitae
Locke E. Bowman
Roderick and Solange MacArthur Justice Center Northwestern University School of Law 375 East Chicago Ave. Chicago, Illinois 60611 (312) 503-0844 l-bowman@law.northwestern.edu
Employment:
Executive Director of the Roderick and Solange MacArthur Justice Center January 2013 - present
Legal Director of the Roderick and Solange MacArthur Justice Center October 1992 – December 2012
Partner at Martin, Brown, Sullivan & Bowman, Ltd., Chicago, Illinois March 1992 - October 1992
Partner at Silets & Martin, Ltd., Chicago, Illinois July 1990 - March 1992
Associate at Silets & Martin, Ltd., Chicago, Illinois August 1988 - July 1990
Assistant Corporation Counsel for the City of Chicago February 1987 - August 1988
Associate at Mayer, Brown & Platt, Chicago, Illinois September 1984 - February 1987
Law Clerk to United States District Judge Hubert L. Will, Chicago, Illinois July 1982 - July 1984
Law Teaching Experience:
Northwestern University School of Law, Chicago, Illinois Clinical Associate Professor of Law, 2006 - 2010 Clinical Professor of Law, 2010 -
Supervision of sixteen second and third year law students per semester, who participate in the MacArthur Center’s Civil Rights Litigation clinic.

Case: 1:20-cv-02134 Document #: 6-4 Filed: 04/03/20 Page 4 of 17 PageID #:126
University of Chicago Law School, Chicago, Illinois Lecturer in Law, 1993 - 2006 Supervision of eight to twelve second and third year law students per quarter, who assist in the MacArthur Justice Center’s litigation. Mandel Legal Aid Clinic’s Intensive Trial Advocacy Workshop and Pretrial Litigation Methods course Seminar on Death Penalty and Habeas Corpus
Admissions to practice: Illinois Supreme Court, 1982 United States District Court for the Northern District of Illinois General Bar, 1982 Trial Bar, 1988 Federal Defender Panel, 1991 United States Court of Appeals for the Seventh Circuit, 1985 United States Court of Appeals for the Fifth Circuit, 1999 United States Court of Appeals for the Eighth Circuit, 2011 United States Supreme Court, 1997
Education: University of Chicago Law School, Chicago, Illinois J.D. 1982, cum laude, Order of the Coif Harvard College, Cambridge, Massachusetts A.B. 1978, magna cum laude with concentration in the Comparative Study of Religion
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Case: 1:20-cv-02134 Document #: 6-4 Filed: 04/03/20 Page 5 of 17 PageID #:127
Representative Trials:
White v. Sheriff of St. Clair County, (S.D. Ill.), Judge Gilbert Trial counsel in jury trial of civil rights suit against Sheriff and St. Clair County Jail guards who ignored a prisoner’s outcry that he was suicidal and allowed the prisoner to hang himself in his cell. $300,000 jury verdict for the plaintiff.
Rivera v. Guevara, et al., (N.D. Ill.), Judge Gottschall Co-trial counsel on behalf of a wrongfully convicted man who spent nearly two decades in prison after being framed by a corrupt Chicago Police officer for a crime he did not commit. $17 million jury verdict for the plaintiff.
Fontano v. Godinez, (C.D. Ill), Judge Myerscough Trial counsel in jury trial of civil rights suit against prison officials who retaliated against a prisoner who exercised his First Amendment rights by reporting that he had been raped by his cellmate. Settled on the final day of trial for $450,000.
Jimenez v. City of Chicago, (N.D. Ill.), Judge Kennelly Trial counsel in jury trial of civil rights suit against Chicago police officers on behalf of man wrongfully charged with murder after police manipulated witness testimony, filed false reports and concealed evidence. Jury verdict of $25 million for the plaintiff. (Affirmed on appeal, Jimenez v. City of Chicago, 732 F.3d 710 (7th Cir. 2013)).
People v. Cortez Brown, (Cook County Circuit Court), Judge Crane Trial counsel in post-conviction hearing for convicted murder defendant who alleged his confession had been coerced by detectives under the command of Chicago Police Commander Jon Burge. New trial awarded based on finding that the confession was involuntary.
Evans v. City of Chicago, et al., (N.D. Ill.), Judge Coar Second chair trial counsel in jury trial of civil rights suit against Chicago police officers on behalf of man wrongfully charged with murder after police manipulated witness testimony and filed false reports. Plaintiff served 27 years in prison for a crime of which he was innocent.
Ayala, et al. v. City of Chicago, et al., (N.D. Ill.), Judge Holderman Trial counsel in preliminary injunction hearing for a class of persons who claimed they were detained as “witnesses” in Chicago police stations. The case was settled with an award of attorneys’ fees and the Chicago Police Department’s agreement to an order permanently ending the practice of holding witnesses behind locked doors without first advising them of their freedom to leave.
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People v. Olajide Banks, (Cook County Circuit Court), Judge Stephens Second chair trial counsel for indigent defendant accused of possession of cocaine with intent to distribute.
First Defense Legal Aid, et al. v. City of Chicago, et al., (N.D. Ill.), Judge Shadur Trial counsel for temporary restraining order and injunction hearing for legal defender organization being denied access to clients in police custody. Findings of fact, conclusions of law and injunction in favor of the defender organization are reported at 225 F. Supp. 2d 870 (N.D. Ill. Sept. 9, 2002), rev’d, 319 F.3d 967.
People v. Faygie Fields, (Alexander County Circuit Court), Judge Clarke Trial counsel for indigent defendant accused of aggravated battery to prison guards.
People v. Alcurtis Jackson, (Cook County Circuit Court), Judge Suria Trial counsel for indigent defendant accused of heinous battery.
United States ex rel. Green v. Peters, (N.D. Ill.), Judge Shadur Trial counsel for class of criminally convicted appellants whose appeals were being delayed as a result of understaffing of appellate indigent defender organization. Findings of fact and conclusions of law in favor of the class are reported at 917 F. Supp. 1238 (N.D. Ill. 1996).
People v. Chicago Magnet Wire, Inc., (Cook County Circuit Court), Judge Strayhorn Second chair trial counsel for president of corporation accused of aggravated assaults and batteries arising out of the operation of a factory.
Smith v. Jack Nicklaus Development Corp., (Will County Circuit Court), Judge McKoski Trial counsel for landowner in trial of land use dispute. Verdict in favor of landowner was upheld on appeal. (Smith v. Jack Nicklaus Development Corp., 225 Ill. App. 3d 384 (2d Dist. 1992))
United States v. United Skates of America, Inc., (N.D. Ill.), Judge Aspen Second chair trial counsel for corporation accused of federal RICO offenses in connection with alleged payment of bribes to obtain liquor licenses.
Evans v. City of Chicago (and consolidated cases), (N.D. Ill.), Judge Grady Co-trial counsel for the City of Chicago in damages phase trial of plaintiff class claim that City of Chicago had unconstitutionally delayed the payment of tort judgments. Trial court’s ruling that the City owed damages to the plaintiff class was reversed on appeal. (Evans v. City of Chicago, 873 F.2d 1007 (7th Cir. 1989), cert. denied, 495 U.S. 956 (1990))
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Maloney v. Washington, (N.D. Ill.), Judge Plunkett Second chair trial counsel for defense in trial of reverse discrimination case against Mayor and Superintendent of Police of the City of Chicago.
Other Representative Trial Level Cases:
Swift v. City of Chicago, (Circuit Court of Cook County), Judge Alexrood Civil rights suit on behalf of a man who, as a teenager confessed to a crime he did not commit and of which he was later exonerated by DNA evidence. Suit named member of the Chicago Police Department and the Cook County State’s Attorney as defendants. Settled on the eve of trial for a combined total of $12,375,000.00.
Strong v. Tessmann, (N.D. Ill.), Judge Durkin Civil rights case for a man who spent over a decade of wrongful incarceration after being wrongfully convicted following a fraudulent investigation by the Lake County, Illinois Major Crimes Task Force. Case settled for $9,000,000.00.
In re Petition for Appointment of Special Prosecutor, (Circuit Court of Cook County), Judge Martin Petition by elected officials, bar associations, prominent lawyers and community groups seeking a special prosecutor to prosecute officers involved in the homicide of Laquan McDonald and subsequent attempts to cover up the facts.
Robinson v. Martin, (Circuit Court of Cook County), Judge Gamrath Class action suit challenging as a violation of equal protection and due process the use of money bail as security for criminally charged persons’ release from pre-trial custody.
Yates v. County of St. Clair, (S.D. Ill.), Judge Reagan Civil rights case on behalf of intellectually impaired 17 year old who confessed during a videotaped interrogation to an armed robbery he did not commit. Case was settled for $900,000—the largest civil rights settlement ever paid by St. Clair County.
Taylor v. City of Chicago, (N.D. Ill.), Judge Lee Civil rights case on behalf of innocent man who was convicted of a murder committed at a time when he was in police custody and spent over two decades in prison.
Rivera v. Lake County, (N.D. Ill.), Judge Leinenweber Civil rights case on behalf of innocent man who was psychologically tortured into confessing to a rape-murder. Case was settled for $20 million.
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People v. Johnnie Plummer, et al., (Circuit Court of Cook County), Judge Biebel Class action petition for all still-incarcerated victims of Jon Burge whose convictions allegedly rest on a confession elicited by torture. The case sought an evidentiary hearing for all class members and new trials where appropriate. The matter was resolved with an order directing the appointment of counsel for all such persons.
In re Petition for Appointment of Special Prosecutor, (Circuit Court of Cook County), Judge Toomin Petition by family of David Koschman, who was slain by the nephew of former Chicago Mayor Daley, for appointment of an independent prosecutor to investigate the homicide and pursue criminal charges. The appointed special prosecutor secured a conviction of the former Mayor’s nephew.
Kitchen v. Burge, (N.D. Ill.), Judge Bucklo Civil rights case on behalf of Jon Burge torture victim who was sentenced to Death Row for a crime he did not commit after confessing under torture. Settled for $6.85 million.
Tillman v. Burge, (N.D. Ill.), Judge Pallmeyer Civil rights case on behalf of Jon Burge torture victim who spent over two decades in prison after confessing under torture to a crime he did not commit. Settled for $5.375 million
People v. Tillman, (Circuit Court of Cook County), Judge Gaughan Post-conviction litigation on behalf of a prisoner whose conviction rested principally on a confession elicited during a physically coercive interrogation conducted by Chicago Police Commander Jon Burge and other detectives.
Livers v. Schenck, et al., (D. Neb.), Judge Bataillon Civil rights case against Cass County, Nebraska and Nebraska State Patrol investigators on behalf of an innocent man who spent over eight months jailed after a false confession was coerced from him. Settled for $1.65 million.
Pendleton v. Fish, et al., (N.D. Ill.), Judge Zagel Civil rights case against Chicago Police forensic investigator and police officers on behalf of an innocent man who spent over eight years incarcerated for a sexual assault that he did not commit. Settled for $600,000.
Wilson v. O’Brien, et al., (N.D. Ill.), Judge Kocoras Civil rights case against Chicago Police officers on behalf of a man who spent over nine years in prison for a crime he did not commit. Settled for $3.6 million.
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National Association of Criminal Defense Lawyers v. Chicago Police Department, et al., (Circuit Court of Cook County), Judge Mason Freedom of Information Act suit seeking access to data underlying the Illinois eyewitness identification study, which purported to find that traditional methods of conducting lineups and photo arrays are more reliable than the sequential, double-blind method favored by social science research.
Mason v. County of Cook, et al., (N.D. Ill.), Judge Zagel Civil rights class action case against Cook County and officials responsible for creating and implementing Central Bond Court, under which bonds are set for arrestees via closed circuit video. Case was dismissed when the Chief Judge of the Circuit Court of Cook County ordered that all future bond hearings be conducted with bond applicants present before the court.
Cannon v. Burge, et al., (N.D. Ill.), Judge St. Eve Civil rights case against Chicago Police officers and Cook County State’s Attorney’s office on behalf of a man who was tortured into confessing to a murder he did not commit.
People v. Darrell Cannon, (Circuit Court of Cook County), Judge Fox Post-conviction proceedings on behalf of police torture victim who pled guilty to armed violence and conspiracy to commit murder as a result of ineffective assistance of counsel. The plea was vacated and the charges dismissed.
Johnson v. City of Chicago, (N.D. Ill.), Judge Hart Civil rights case alleging policy claim against the City of Chicago for unlawful detention of witnesses during high profile criminal investigations.
Bell v. Cummings, et al., (Circuit Court of Cook County), Judge Hogan Represented man wrongfully charged with his mother’s murder after police coerced him into falsely confessing in suit for malicious prosecution and intentional infliction of emotional distress against the police officer who coerced the confession. Settled for $1 million.
In re Petition for Appointment of Special Prosecutor, (Circuit Court of Cook County), Judge Biebel Represented petitioners seeking the appointment of a special prosecutor to investigate and prosecute crimes committed by Chicago Police detectives who engaged in torture of suspects at the Area 2 Chicago Police headquarters. Special prosecutor was appointed in April, 2002.
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Willis v. Fish, et al., (Circuit Court of Cook County), Judge Casciato Represented exonerated former prisoner in malicious prosecution action against prosecutor and forensic scientists in the Chicago Police crime lab. Settled for $2.6 million.
Ceriale v. Smith & Wesson; Young v. Bryco Arms; and Smith v. Navegar, Inc. (Circuit Court of Cook County), Judge Duncan-Brice Represented families of gun violence victims in public nuisance litigation against firearms manufacturers, alleging that manufacturers are responsible for consequences of gun violence in light of distribution practices that funnel guns to criminals in the City of Chicago.
Chicago Reader, Inc. v. Sheahan, (N.D. Ill.), Judge Moran Represented journalist in an action seeking to bar Cook County Sheriff from refusing the journalist access to the Cook County Jail in retaliation for unfavorable story about the Sheriff. Trial court’s decision granting summary judgment in favor of the plaintiff is reported at 141 F. Supp. 2d 1142 (N.D. Ill. 2001)
Newsome v. James, (N.D. Ill.), Judge Plunkett Pretrial representation of exonerated former prisoner in civil rights action against police officers for malicious prosecution. Trial court’s decision denying motions to dismiss is reported at 968 F. Supp. 1318 (N.D. Ill. 1997).
Protess v. Howell, (N.D. Ill.), Judge Castillo Represented journalist David Protess and students in an action seeking journalistic access to condemned prisoner in the days prior to the prisoner’s scheduled execution. For a description of the case, see Judge Castillo’s opinion transferring venue, reported at 1995 U.S. Dist. LEXIS 6102 (N.D. Ill. May 4, 1995).
Jefferson v. Fry, (Circuit Court of Cook County), Judge Foreman Represented class of indigent criminal appellants in action challenging the propriety of Cook County Public Defender’s practice of filing motions to withdraw from nearly half of the appellate cases to which the Public Defender is appointed.
Representative Appellate Cases:
Jimenez v. City of Chicago, 732 F.3d 710 (7th Cir. 2013) (argued).
Livers v. Schenck, 700 F.3d 340 (8th Cir. 2012) (argued).
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National Ass’n of Crim Def Lawyers v. Chi Police Dep’t, 924 N.E.2d 564 (Ill. App. 1st Dist. 2010) (argued).
Evans v. City of Chicago, 513 F.3d 735 (7th Cir. 2007).
First Defense Legal Aid v. City of Chicago, 319 F.3d 967 (7th Cir. 2003) (argued).
Young v. Bryco Arms, 327 Ill. App. 3d 948 (1st Dist. 2001) (argued), rev’d, 213 Ill. 2d 433 (2004) (argued).
People v. Rokita, 316 Ill. App. 3d 292 (5th Dist. 2000) (argued).
Hanrahan v. Williams, 267 Ill. App. 3d 735 (2d Dist. 1994), rev’d, 174 Ill. 2d 268 (1996) (argued), cert. denied, 118 S. Ct. 56 (1997).
People v. Brown, 172 Ill. 2d 1 (1996).
United States v. Eliason, 3 F.3d 1149 (7th Cir. 1993) (argued).
Smith v. Jack Nicklaus Development Corp., 225 Ill. App. 3d 384 (2d Dist. 1992) (argued).
Fenderson v. Athey Products Corp., 220 Ill. App. 3d 832 (1st Dist. 1991) (argued).
Significant Amicus Briefs:
Obrycka v. City of Chicago, 2012 U.S. Dist. LEXIS 179990 (N.D. Ill. December 20, 2012). Co-author of amicus brief to a judge in the Northern District of Illinois arguing that it would violate the public interest to grant the City of Chicago’s request as part of a settlement deal to vacate a judgment against the City finding that the City Police had a code of silence.
People v. Wrice, 406 Ill. App. 3d 43 (1st Dist. 2011), aff’d, 2012 Ill. LEXIS 306 (2012). Author of amicus briefs to the Illinois Appellate Court and the Illinois Supreme Court arguing on behalf of an ad hoc group of prominent Illinois lawyers and politicians that prisoners alleging their convictions were procured through torture should have receive a full hearing into their allegations without regard to the technical timeliness of the claim or the harmless error doctrine.
People ex rel. Madigan v. Snyder, 208 Ill. 2d 457 (2004). Author of amicus brief arguing on behalf of death row inmates whose sentences were commuted against their will to life imprisonment that the commutations
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were valid under Illinois law and should be upheld despite the inmates’ personal preferences.
People v. Rissley, 206 Ill. 2d 403 (2003). Author of amicus brief arguing on behalf of religious leaders that a death row appellant should not be denied a hearing on his constitutional claims because he erroneously relied on his appointed lawyer’s advice and filed his petition for post-conviction hearing six days too late.
People v. Kliner, 185 Ill. 2d 81 (1998). Author of amicus brief arguing on behalf of prominent Illinois lawyers that there should be a moratorium on death penalty executions pending a review of the Illinois capital punishment process in light of the many instances of wrongful convictions and death sentences imposed upon the actually innocent. (The Illinois Supreme Court declined to address the issue raised in the brief..)
Bracy v. Gramley, 520 U.S. 899 (1997). Author of amicus brief arguing on behalf of prominent Illinois lawyers that there should be an evidentiary hearing into a death row inmate’s habeas corpus claim that his conviction and death sentence were tainted because a corrupt judge had presided over his trial.
People v. McCauley, 163 Ill. 2d. 414 (1994). Author of amicus brief arguing on behalf of various criminal defense organizations and prominent criminal defense counsel that the right to counsel provision of the Illinois constitution should be interpreted more broadly than the United States Supreme Court had interpreted the Sixth Amendment in Moran v. Burbine, 475 U.S. 412 (1986).
Selected Lectures and Conference Presentations:
Roderick and Solange MacArthur Justice Center Conference on De-incarceration through Civil Rights Litigation, April 2016 Convenor and panelist
Northwestern University School of Law Journal of Law and Social Policy Symposium on Police in America, November 2015 Convenor and panel facilitator
Office of the Cook County Public Defender Seminar on representing victims of Jon Burge, October 2013 Presentation on post-conviction hearings involving claims of torture by Jon Burge and his men.
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Northwestern University School of Law Centennial Symposium of the Journal of Criminal Law and Criminology, January 2010 Presentation on the Effects of Videoconferencing on Outcomes in Bond Hearings in Cook County (with Prof. Shari Seidman Diamond)
Citizens Alert/Jane Addams College of Social Work at the University of Illinois at Chicago
Symposium on Independent Oversight of Police in Chicago, February 2007 Presentation on police torture and the need for civilian oversight of the Chicago Police Department
Illinois Academy of Criminology Fall Program 2006 Presentation on Special Prosecutor investigation of Chicago Police Lt. Jon Burge and the Area 2 police torture scandal
American Trial Lawyers Association 2000 Annual Convention, July 2000 Firearms and Ammunition Litigation Group Presentation on litigating public nuisance cases against the gun industry
Loyola University Chicago School of Law Loyola Consumer Law Review Symposium, April 2000 Panel on Guns and Violence: Legislation, Litigation and Consumer Policy
ACLU/Open Society Institute Workshop on Indigent Defense Litigation, April 2000 Panel on Litigation Strategies
Midwest Criminal Justice Association Annual conference, October 1999 Keynote speech
Northwestern University School of Law National Conference on Wrongful Convictions and the Death Penalty Panels on the Illinois moratorium movement and compensating the wrongfully convicted, November 1998
Northwestern University School of Law Student Federalist Society Debate on Racism in the Death Penalty, October 1997
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Illinois Public Defender Association, annual conference, June 1997 Presentation of Illinois Public Defender Caseloads and Resources Survey
John Marshall Law School, The 7th Belle R. and Joseph H. Braun Memorial Distinguished Lecture and Symposium on the Death Penalty Panel on post conviction and habeas corpus strategy, October 1996
University of Chicago Roundtable conference on intermediate punishments Panel on alternatives to incarceration, January 1995
Other presentations include lectures and panel discussions for student groups at the University of Chicago and the University of Chicago Law School on death penalty issues, handguns litigation and public interest litigation. Frequent speaker on the death penalty and other criminal justice issues in a variety of fora.
Publications:
L. Bowman, Delays in Laquan McDonald case foster despair in Chicago, Chicago Tribune (July 15, 2016).
A. Van Brunt, S. Bedi, L. Bowman and C. Futterman, Complaint Submitted to the U.S. DOJ Documenting the Role of the Independent Police Review Authority in Perpetuating a Code of Silence and Culture of Violence in the Chicago Police Department, 11 Police Misconduct and Civil Rights 3 (January/February 2016).
L. Bowman and G. F. Taylor, Courts Have Sorry Record in Police Abuse Cases, Chicago Sun Times (December 16, 2015).
L. Bowman and G. F. Taylor, State’s Attorney Yet to Apologize for Koschman Case, Chicago Sun Times (September 17, 2015).
L. Bowman, Justice Is Lacking When System Protects Its Own, Chicago Tribune, (July 24, 2015).
L. Bowman, The Ugly Truth Behind the Killing of Michael Brown, Crain’s Chicago Business (December 2, 2014).
S. S. Diamond, L. E. Bowman, M. Wong and M. M. Patton, Efficiency and Cost: The Impact of Videoconferenced Hearings on Bail Decisions, 100 Northwestern J. Crim. L. and Criminology 869 (Summer 2010).
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L. Bowman, Review of Jon B. Gould, The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System: Lemonade Out of Lemons: Can Wrongful Convictions Lead to Criminal Justice Reform? 98 Northwestern J. Crim. L. and Criminology 1501 (Summer 2008)
L. Bowman, Review of Steve Bogira, Courtroom 302: The Emperor Has No Clothes: A Journalist Sees the Criminal Justice System, 95 Northwestern J. Crim. L. and Criminology 1411 (Summer 2005).
L. Bowman, Reversal of Fortune: How George Davis Unwittingly Proved the Importance of Having an Appellate Lawyer, CBA Record (November 2005).
L. Bowman, Lawyers must be guardians of liberty, Chicago Daily Law Bulletin, (April 23, 2005).
L. Bowman and Rob Warden, Independent Crime Labs Could Help Stop Forensic Fraud, Chicago Sun Times (November 7, 2004).
L. Bowman and Randolph Stone, Burge Investigation Needs Ratcheting Up, Chicago Tribune (April 22, 2003).
L. Bowman and Randolph Stone, Cop Brutality Probe Must Be Thorough, Fair, Chicago Sun Times (May 16, 2002).
L. Bowman, Litigating the Public Nuisance Case, 2 ATLA 2000 Convention Reference Materials 1815 (2000).
L. Bowman, Gov. Ryan Should Sign Bill Requiring Preservation of DNA, Chicago Tribune (May 2, 2000).
L. Bowman, Desperate Hours, Kokoraleis Execution Places Us at A Moral Crossroads, Chicago Tribune (March 14, 1999).
L. Bowman, In Quest for the Truth, Cameras Will Not Lie, Chicago Sun Times (February 16, 1999).
L. Bowman, Clemency Project Serving Victims of Parole System, Chicago Sun Times Letter (March 7, 1996)
H. Silets and L. Bowman, Crime on the Production Floor, 21 Criminal Law Advocacy Reporter 557 (1991).
Occasional blog posts for the Huffington Post are archived at http://www.huffingtonpost.com/locke-bowman/
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Other Activities:
Member of Police Oversight Working Group for Mayor Emanuel’s 2016 Police Accountability Task Force
Co-author of December 2015 Complaint to the U.S. Department of Justice regarding the failures of Chicago’s Independent Police Review Authority.
Co-author of April 2007 Report on the Failure of Special Prosecutors Edward J. Egan and Robert D. Boyle to Fairly Investigate Police Torture in Chicago.
Leader in public interest advocacy effort to implement reforms in the Chicago Police Department’s internal disciplinary process (Summer 2007).
Coordinated the filing of clemency petitions for approximately 150 death row inmates whose death sentences were commuted by Illinois Governor George Ryan in January 2003.
Member of the Advisory Committee of the Illinois Death Penalty Education Project Founded by the Justice Project, the Northwestern Law School Center on Wrongful Convictions and the MacArthur Justice Center to educate the public about flaws in the Illinois death penalty system and the need for reform, 20012002
Chicago Council of Lawyers Member of the Board of Governors, 2001 - 2002 Member of the Executive Committee, 2002 - 2005 President, 2003 - 2005
Co-Chair of the Illinois Lawyers of the Legal Community Against Violence, a Lawyers’ organization dedicated to improving the regulation of firearms 2000 – present
Member of Illinois House of Representatives Task Force on the Death Penalty Created by House Resolution to study problems in the administration of capital punishment in the State of Illinois, 1999 - 2000
Member of Advisory Board of the Educational Fund to End Handgun Violence Washington, DC-based organization that advocates and litigates for gun control, 1998 - present.
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Member of Honorary Board for First Defense Legal Aid An indigent defender organization that provides free representation to suspects in police custody prior to charging and initial court appearance, 1996 - present.
Awards: American Constitution Society, Legal Legend Award, July 2015 Named an Illinois Superlawyer in 2005, 2006, 2007, 2008 and 2009 St. Joseph the Worker Award, Evangelical Catholic Diocese of the Northwest, November 2010 First Defense Legal Aid, First Defender Award, May 2008 Citizens Alert Rev. Willie Baker Award, for Contributions toward Community Justice, April 2005 Clarence Darrow Award, Clarence Darrow Commemorative Committee, For Leadership Efforts to Reform the Death Penalty System, March 2003 Illinois Public Defender Association Award for Excellence and Meritorious Service November 1994
Media Experience: Litigation activities have often been covered in the media. Frequently interviewed in the print and electronic media on a variety of issues related to criminal justice. Often quoted in the Chicago Tribune and Chicago Sun-Times. Interviewed on The Today Show, CNN and National Public Radio. Frequent local radio and television interviews.
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Case: 1:20-cv-02134 Document #: 6-5 Filed: 04/03/20 Page 1 of 3 PageID #:140

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 20-cv-2134

DECLARATION OF CHARLES GERSTEIN

1) My name is Charlie Gerstein and, on behalf of Civil Rights Corps, I am one of the

counsel for the named Plaintiff and the putative Class members in this case. I submit this

Declaration in support of the Plaintiff’s motion to certify this case as a class action.

2) Prior to joining Civil Rights Corps, I was a law clerk for the Honorable Pierre N.

Leval of the United States Court of Appeals for the Second Circuit and for the Honorable

J. Paul Oetken of the United States District Court for the Southern District of New York. I

graduated summa cum laude from the University of Michigan Law School in 2013,

finishing second in my class. In law school, I briefed and argued a federal criminal appeal

in the United States Court of Appeals for the Sixth Circuit, and a state criminal appeal in

the Ohio Court of Appeals.

3) I am currently class counsel and lead counsel in Little v. Frederick, No. 17-CV-724

(W.D. La.), a class-action challenge to unconstitutional money-bail practices in Lafayette,

1

Case: 1:20-cv-02134 Document #: 6-5 Filed: 04/03/20 Page 2 of 3 PageID #:141
Louisiana (currently on appeal), and in Hernandez v. City of Houston, Texas, 16-CV-3577 (S.D. Tex.), a putative class-action challenge to unconstitutional detention without a judicial determination of probable cause.
4) I am currently lead counsel in Willey v. Ewing, 18-CV-81 (S.D. Tex.), a challenge to judicial interference with the independence of defense counsel; Stone v. Tom Green County, 20-CV-61 (N.D. Tex.), a challenge to prosecutorial relation against defense counsel; Hudson v. Montgomery County, 20-CV-1487 (E.D. Penn.), a challenge to county retaliation against defense counsel; and State v. Jones, No. S067542 (Or.), a mandamus action in the Oregon Supreme Court challenging unconstitutional bail practices.
5) I am additionally counsel in Parga v. Tulsa County, 18-CV-298 (N.D. Okla.), a class-action challenge to pretrial-detention practices; and The Nashville Community Bail Fund v. Gentry, 20-CV-103 (M.D. Tenn.).
6) I previously served as lead counsel in a successful federal habeas challenge to wealth-based pre-trial detention in Memphis, Tennessee, Weatherspoon v. Oldham, No. 17-CV-2535-SHM-CGC, 2018 WL 1053548, at *1 (W.D. Tenn. Feb. 26, 2018), and in a successfully resolved class-action challenge to probable-cause practices in Harris County, Texas, Lomas v. Harris Cty., Tex., 16-CV-3745 (S.D. Tex. 2017).
7) Attorneys with Civil Rights Corps have been lead counsel in well over a dozen federal class action lawsuits across the country.
8) Civil Rights Corps is prepared to contribute significant resources to litigating this case. Plaintiffs’ counsel have paid all costs associated with the investigation and litigation to date and will continue to do so.
2

Case: 1:20-cv-02134 Document #: 6-5 Filed: 04/03/20 Page 3 of 3 PageID #:142 I declare under penalty of perjury that the forgoing is true and correct to the best of
my knowledge. Dated: April 3, 2020
/s/ Charles Gerstein Charles Gerstein Civil Rights Corps 1601 Connecticut Ave NW Suite 800 Washington DC 20009
3

 
 Case: 1:20-cv-02134 Document #: 26 Filed: 04/06/20 Page 1 of 4 PageID #:167

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 20-cv-2134

PLAINTIFFS’ MOTION FOR LEAVE TO FILE OVERSIZED BRIEF IN RESPONSE TO THE COURT’S APRIL 3, 2020 ORDER

Plaintiff-Petitioner Anthony Mays and Plaintiff-Petitioner Judia Jackson, as the next

friend of Kenneth Foster, on behalf of themselves and the classes they seek to represent, hereby

respectfully ask this Court for leave to file an oversized brief of 26 pages in response to the

Court’s April 3, 2020 Order. In support of their request, Plaintiffs state as follows:

1. Plaintiffs have filed a class action lawsuit seeking injunctive relief for protection

against the imminent risk of harm or death from COVID-19 at the Cook County Jail. Plaintiffs

also have filed an Emergency Motion for a Temporary Restraining Order or Preliminary

Injunction.

2. After Plaintiffs filed their Complaint and emergency motion, the Court entered an

Order asking Plaintiffs to “provide their position regarding the applicability and effect of 18

U.S.C. § 3626 to their lawsuit and, in particular, to the relief they are requesting in the TRO/PI

motion.” Dkt. 10. That brief is due today at 12 noon and is attached to this motion. Id.

Case: 1:20-cv-02134 Document #: 26 Filed: 04/06/20 Page 2 of 4 PageID #:168 3. In order to provide the Court with a detailed discussion of the applicability of
Section 3626 that Plaintiffs believe is appropriate, Plaintiffs require approximately 10 pages more than the default limit set out in Local Rule 7.1.
4. Accordingly, Plaintiffs respectfully request that this Court grant them leave to file an oversized brief of 26 pages to respond fully to the Court’s April 3, 2020 Order. Granting Plaintiffs leave in this case is appropriate given the importance of the issues at stake in the litigation, as well as the arguments Plaintiffs anticipate the Defendant will raise in response.
5. Plaintiffs will have no objection to any corresponding request by the Defendant for leave to file an oversized brief in response later today.
WHEREFORE, Plaintiffs respectfully request that this Court grant their motion and give them leave to file a 26-page response to the Court’s April 3, 2020 Order regarding the applicability of 18 U.S.C. § 3626 to their claims.
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Respectfully submitted,
/s/ Sarah Grady Sarah Grady Attorney for Plaintiffs Stephen Weil Sarah Grady Loevy & Loevy 311 North Aberdeen St., 3rd Fl. Chicago, IL 60607 (312) 243-5900 Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Ave. Chicago, IL 60611 (312) 503-0884 Charles Gerstein (pro hac vice application pending) Alec Karakatsanis (pro hac vice application pending) Civil Rights Corps 1601 Connecticut Ave NW, Ste. 800 Washington, DC 20009 (202) 894-6128
3

Case: 1:20-cv-02134 Document #: 26 Filed: 04/06/20 Page 4 of 4 PageID #:170 CERTIFICATE OF SERVICE
I, Sarah Grady, an attorney, hereby certify that on April 6, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system, which effected service on all counsel of record.
/s/ Sarah Grady Sarah Grady Attorney for Plaintiffs
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Case: 1:20-cv-02134 Document #: 26-1 Filed: 04/06/20 Page 1 of 33 PageID #:171

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 20 C 2134

PLAINTIFFS’ RESPONSE TO THE COURT’S APRIL 3, 2020 ORDER

Stephen Weil Sarah Grady Loevy & Loevy 311 North Aberdeen St., 3rd Fl. Chicago, IL 60607 (312) 243-5900 sarah@loevy.com
Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Ave. Chicago, IL 60611 (312) 503-0884
Charles Gerstein (pro hac vice application pending) Alec Karakatsanis (pro hac vice application forthcoming) Civil Rights Corps 1601 Connecticut Ave NW, Ste. 800 Washington, DC 20009 (202) 894-6128

Case: 1:20-cv-02134 Document #: 26-1 Filed: 04/06/20 Page 2 of 33 PageID #:172
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 DISCUSSION ..................................................................................................................................2 I. The Relevant Provisions of 18 U.S.C. § 3626 .....................................................................2 II. The PLRA Does Not Apply to Subclass A’s Request for a Writ of Habeas Corpus...........4 III. Plaintiffs’ Request for a Preliminary Injunction to Remedy Unconstitutional Conditions
of Confinement at the Jail Satisfy Section 3626(a)(2) and Are Necessary, Although Potentially Insufficient, To Protect the Class ......................................................................5 A. Plaintiff’s Proposed Injunctive Relief Regarding Conditions at the Jail Satisfies
Section 3626(a)(2) .........................................................................................................5 B. Plaintiffs’ Proposed Injunctive Relief May Not Be Sufficient ....................................10 IV. Subclass B Seeks Transfer Within the Jurisdiction of the Sheriff in Response to a Growing Pandemic Inside the Jail, Relief That Satisfies the Need-NarrownessIntrusiveness Criteria and Is Not a Prisoner-Release Order ..............................................17 A. Plaintiffs’ Requested Transfer Is Within the Court’s Equitable Authority and Does
Not Require the Sheriff to Exceed His Statutorily Prescribed Authority ....................18 B. The Requested Relief is Not a Prisoner Release Order ...............................................20 C. The Relief Requested for Subclass B is Narrowly Drawn, Extends No Further than
Necessary, and is the Least Intrusive Means Necessary to Address the Violations at Stake .............................................................................................................................24 CONCLUSION .............................................................................................................................25
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TABLE OF AUTHORITIES Cases Abu-Jamal v. Wetzel, 2017 WL 34700 (M.D. Pa. Jan. 3, 2017)....................................................24 Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010) .......................................................7 Basank v. Decker, ___ F. Supp. 3d ____, (S.D.N.Y. Mar. 26, 2020) .............................................4 Benjamin v. Fraser, 156 F. Supp. 2d 333 (S.D.N.Y. 2001) ....................................................... 7-8 Blair–Bey v. Quick, 151 F.3d 1036 (D.C.Cir.1998) ........................................................................4 Braggs v. Dunn, 383 F. Supp. 3d 1218 (M.D. Ala. May 4, 2019)............................................... 8-9 Brown v. Plata, 563 U.S. 493 (2011)...............................................................................................7 Caiozzo v. Koreman, 581 F.3d 63 (2d. Cir. 2009) ..................................................................... 7-12 Chan v. County of Sacramento, 2011 WL 2636262 (E.D. Cal. July 5, 2011) ...............................24 Davis v. Fechtel, 150 F.3d 486 (5th Cir.1998) ................................................................................4 DeBartolo Corp v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988)...16 Doe v. Younger, No. 91-187 (E.D. Ky. Sept. 4, 1996) ...................................................... 19, 21-22 Duvall v. O’Malley, 2016 WL 3523682 (D. Md. June 28, 2016) .................................................10 Estelle v. Gamble, 429 U.S. 97 (1976) ..........................................................................................16 Farmer v. Brennan, 511 U.S. 825 (1994) .....................................................................................17 Farnam v. Walker, 593 F.Supp.2d 1000 (C.D. Ill. 2009) ..............................................................24 Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) .............................................................................3, 7 Flynn v. Doyle, 630 F.Supp.2d 987 (E.D. Wis. Apr. 24, 2009).....................................................24 Francis v. Hammond, 2013 WL 12167887 (W.D. Wash. Mar. 4, 2013) ......................................24 Gilmore v. California, 220 F.3d 987 (9th Cir. 2000)............................................................... 20-22 Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005)..........................................................................17
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Greyer v. Illinois Dep't of Corr., 933 F.3d 871 (7th Cir. 2019) .....................................................4 Helling v. McKinney, 509 U.S. 25 (1993)...............................................................................16, 24, Johnson v. Harris, 479 F. Supp. 333 (S.D.N.Y. 1979) .................................................................17 Jones v. United States, 529 U.S. 848 (2000) .................................................................................16 Kentucky v. King, 563 U.S. 452 (2011) ..................................................................................15, 20 McIntosh v. United States Parole Commission,...............................................................................4 McNearney v. Washington Dep’t of Corr. (W.D. Wash. Jan. 9, 2013) .........................................24 Mitts v. Obandina, 2012 WL 4060013 (S.D. Ill. Aug. 27, 2012) ..................................................24 Morales Feliciano v. Rullan, 378 F.3d 42 (1st Cir. 2004).........................................................7, 23 Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000) .......................................................................2, 5 Murphy v. Lane, 833 F.2d 106 (7th Cir. 1987) ..............................................................................17 NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)..........................................................16 Norsworthy v. Beard, 87 F.Supp.3d 1164 (N.D. Cal. 2015)..........................................................24 Perez v Cate, 2009 WL 440508 (N.D. Cal. Feb. 23, 2009) ...........................................................24 Petties v. Carter, 836 F.3d 722 (7th Cir. 2016) .............................................................................18 Plata v. Brown, 2013 WL 3200587 (N.D. Cal. June 24, 2013) .....................................................20 Plata v. Newsom, No. 90 C 0520 (N.D. Cal. April 4, 2020)..........................................................15 Preiser v. Rodriguez, 411 U.S. 475 (1973)....................................................................................17 Reaves v. Dep’t of Correction, 392 F.Supp.3d 195 (D. Mass. 2019) ......................... 17, 20-21, 23 Thakker v. Doll, No. 20 C 0480 (M.D. Pa. Mar. 31, 2020) ............................................................5 Turner v. Clelland, 2016 WL 1069665 (M.D.N.C. Mar. 16, 2016) .............................................24 Tyler v. Anderson, 749 F.3d 499 (6th Cir. 2014) .....................................................................12, 15 United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366 (1909)...........16
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United States v. Alabama, 2015 WL 3796526 (M.D. Ala. June 18, 2015) .............................. 9-10 United States v. Wallen, 177 F. Supp. 2d 455 (D. Md. 2001) ......................................................17 Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000) .....................................................................4, 24 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .................................................................20 Williams v. Dart, Case No. 19-02108 (7th Cir) .............................................................................18
Statutes 18 U.S.C. § 3626.................................................................................................................... passim 28 U.S.C. § 1983.................................................................................................................... passim 28 U.S.C. § 2241..............................................................................................................................4 28 U.S.C. § 2254..............................................................................................................................4
Other Authorities Bryant. Miranda. “Coronavirus Spread at Rikers is a ‘Public Health Disaster,’ Says Jail’s Top
Doctor,” The Guardian (Apr. 1, 2020), https://www.theguardian.com/usnews/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster ...........................11 Centers for Disease Control, Coronavirus Disease 2019 (COVID-19): Social Distancing, Quarantine, and Isolation, (last visited Apr. 6, 2020) https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html ............................................................................................................................................14 Cook County Board of Commissioners. Current Budget Information, https://www.cookcountyil.gov/Budget ..............................................................................12 Cook County Sheriff’s Office. Cook County Jail infection figures: Cook County Sheriff, https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ ............................12 Cook County Sheriff’s Office. COVID-19 Cases at CCDOC (last updated Apr. 5, 2020), https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ ...............................12 Cook County Sheriff’s Office. “Sheriff Dart Institutes Comprehensive Precautionary Measures to Address COVID-19 Threat,” (Mar. 20, 2020), https://www.cookcountysheriff.org/sheriff-dart-institutes-comprehensiveprecautionary-measures-to-address-covid-19-threat/ ........................................................11 Ewing Tia. “Inmates concerned as COVID-19 spreads through Cook County Jail,”
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Fox 32 (Apr. 3, 2020), available at https://www.fox32chicago.com/news/inmatesconcerned-as-covid-19-spreads-through-cook-county-jail ...............................................11
Kendall, Tyler. Coronavirus cases surge inside Chicago's Cook County Jail,” CBSNews (Apr. 5, 2020), https://www.cbsnews.com/news/chicago-cook-county-jailcoronavirus-life-inside-covid-19-cases/ ............................................................................13
Kendall, Tyler. "We're at war with no weapons": Coronavirus cases surge inside Chicago's Cook County Jail,” CBSNews (Apr. 5, 2020), https://www.cbsnews.com/news/chicago-cookcounty-jail-coronavirus-life-inside-covid-19-cases/ ..........................................................13
Lewis, Sean. “Sheriff Dart working to contain COVID-19 spread in Cook County Jail, WGN (Mar. 31, 2020), available at https://www.fox32chicago.com/news/inmatesconcerned-as-covid-19-spreads-through-cook-county-jail ................................................11
NBC Chicago. Read Pritzker’s Full Statement Announcing Illinois Stay-at-Home Order Extension,” NBC5 (Mar. 31, 2020), https://www.nbcchicago.com/news/local/readpritzkers-full-statement-announcing-illinois-stay-at-home-order-extension/2247976/ ....19
Neff, Joseph, Blaninger, Keri. Federal Prisons Agency ‘Put Staff in Harm’s Way’ of Coronavirus, The Marshall Project (Apr. 3, 2020) https://bit.ly/2xVAeaE ......................10
New York Times, Almukhtar, Sarah , et al. Coronavirus in the U.S.: Latest Map and Case Count,” N.Y. Times (last updated Apr. 5, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html .........................1
Pritzker,Governor J.B. Executive Order in Response to COVID-19 (COVID Executive Order No. 8) (Mar. 20, 2020), pg. 1-5, available at https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder2020-10.pdf .......................................................................................................................19
Sheets, Connor. Alabama prison system’s COVID-19 plan anticipates widespread infection, deaths, National Guard intervention, AL.com (Apr. 5, 2020), available at https://www.al.com/news/2020/04/alabama-prison-systems-covid-19-plan-anticipateswidespread-infection-deaths-national-guard-intervention.html.........................................10
Quandt, Katie Rose, Casella, Jean. “U.S. Jails Will Become Death Traps in Coronavirus Pandemic,” The Guardian (Mar. 30, 2020), https://www.theguardian.com/commentisfree/2020/mar/30/jails-coronavirus-usrikers-island........................................................................................................................11
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INTRODUCTION The Cook County Jail is now the site of the largest known cluster of COVID-19 cases in the United States.1 Since the filing of the case, two days ago, the number of detainees infected with the disease has grown from 167 to at least 234; 78 staff are infected; 14 detainees are hospitalized.2 These numbers rise every day, and the rate of infection in the Jail is now 32 times the rate in Cook County writ large. In the two weeks since it was first detected, 1 out of every 20 detainees at the Jail has become infected.3 It is unclear how many have been tested or how many tests are outstanding. Plaintiffs have filed a Complaint seeking an emergency writ of habeas corpus for detainees who are especially vulnerable to a grave risk of serious illness and death because of their age or medical condition. They also seek injunctive relief under 42 U.S.C. § 1983 to bring the conditions at the Jail into compliance with the Constitution, and to transfer those detainees at the Jail who have been exposed to the virus to a form of custody that is safe. In their motion for a temporary restraining order or preliminary injunction, Plaintiffs request three categories of relief: (1) for Subclass A, they seek immediate release through a writ of habeas corpus; (2) for Subclass B, they seek transfer to a safe environment; and (3) for the entire Class, they seek an Order requiring the Jail to adhere to CDC guidelines and take other actions required by medical
1 “Coronavirus in the U.S.: Latest Map and Case Count,” N.Y. Times (last updated Apr. 5, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (“Though many of the first coronavirus cases in the United States were tied to overseas travel, localized outbreaks have become increasingly common.” Cook County Jail is the top locale for this type of outbreak).
2 COVID-19 Cases at CCDOC (last updated Apr. 5, 2020), https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/.
3 See infra pg. 12.
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consensus to bring the conditions of confinement at the Jail into constitutional compliance. Dkt. 2 at 11.
Plaintiffs submit this brief in response to the Court’s request to “provide their position regarding the applicability and effect of 18 U.S.C. § 3626 to their lawsuit and, in particular, to the relief they are requesting in the TRO/PI motion.” Dkt. 10. In summary: (1) Plaintiffs’ first request, for habeas relief, is not governed by 18 U.S.C. § 3626. Moran v. Sondalle, 218 F.3d 647, 651 (7th Cir. 2000) (per curiam). (2) Plaintiffs’ claims for emergency injunctive relief under Section 1983 comply with 18 U.S.C. § 3626 because they seek narrowly drawn injunctive relief that extends no further than what is required to ensure class members are held in constitutionally compliant conditions. (3) Neither of the requests for injunctive relief under Section 1983 constitutes a prisoner release order, 18 U.S.C. § 3626(a)(3), and thus the requirements of Section 3626(a)(3) do not apply to Plaintiffs’ current requests. (4) Given the imminent threat that an uncontrolled outbreak at the Jail imposes on class members and to the general public, however, Plaintiffs believe that a three-judge panel should be convened in the event that immediate compliance with the Constitution is not achieved. The unprecedented global pandemic—an infectious disease spreading inside the Cook County Jail at a rate fifty times that of the general U.S. population—requires unique and prompt action by this Court to ensure that this Court is in a position to save as many lives as possible.
DISCUSSION I. The Relevant Provisions of 18 U.S.C. § 3626.
The Prison Litigation Reform Act (PLRA) applies to “any civil action with respect to prison conditions,” 18 U.S.C. § 3626, but not to petitions for habeas corpus. Moran, 218 F.3d at 651. Requests for relief under Section 3626 are governed by Subsection (a) of that statute, which
2

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contains three core provisions: Subsection (1) governs all prospective relief, Subsection (2) governs preliminary injunctions and temporary restraining orders, and Subsection (3) governs “prisoner release order[s].”
Subsection (1) requires that “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs,” 18 U.S.C. § 3626(a)(1)(A), and instructs courts to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief” when considering whether “such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. Further, the statute requires that courts not order a state official to exceed their authority under state law unless doing so is required by federal law to protect a federal right and no other relief will do. Id. § 3626(a)(1)(B). Courts refer to these requirements as the “needs-narrowness-intrusiveness” criteria. E.g., Fields v. Smith, 653 F.3d 550, 558 (7th Cir. 2011).
Subsection (2) applies the narrow-tailoring requirements of Subsection (1) to requests for preliminary injunctive relief, and further requires that all such relief “automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) [that the relief be narrowly tailored and minimally intrusive] . . . and makes the order final before the expiration of the 90-day period.” 18 U.S.C. § 3626(a)(2).
Finally, Subsection (3) governs “prisoner release order[s].” Id. § 3626(a)(3). A “prisoner release order” is defined as “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” Id. § 3626(g)(4).
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Subsection (3) imposes substantive and procedural requirements on prisoner-release orders. Procedurally, a prisoner-release order may issue only by order of a three-judge district court, and only after “a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order[,] and the defendant has had a reasonable amount of time to comply with the previous court orders.” Id. at (3)(A) (numerals omitted). Substantively, “[t]he three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that crowding is the primary cause of the violation of a Federal right[] and no other relief will remedy the violation of the Federal right.” Id. at (3)(E). II. The PLRA Does Not Apply to Subclass A’s Request for a Writ of Habeas Corpus.
The PLRA does not apply to habeas corpus actions. Walker v. O'Brien, 216 F.3d 626, 634 (7th Cir. 2000) (“[W]e conclude that cases properly brought under §§ 2241 or 2254 as habeas corpus petitions are not subject to the PLRA. In so doing, we bring this circuit into line with all of our sister circuits who have ruled on the matter.” (citing Davis v. Fechtel, 150 F.3d 486, 488–90 (5th Cir.1998); McIntosh v. United States Parole Commission, 115 F.3d 809, 811– 12 (10th Cir.1997); Blair–Bey v. Quick, 151 F.3d 1036, 1039–41 (D.C.Cir.1998)); see also, Greyer v. Illinois Dep't of Corr., 933 F.3d 871, 878 (7th Cir. 2019) (observing that “habeas corpus petitions do not give rise to a strike under the PLRA.”). Recent district court orders granting petitions for habeas corpus relief in light of COVID-19 have not applied the PLRA to those actions. See, e.g., Basank v. Decker, ___ F. Supp. 3d ____, 2020 WL 1481503, at *7 (S.D.N.Y. Mar. 26, 2020) (granting petitioner’s Section 2241 request for a TRO, releasing them
4

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from immigration detention because of COVID-19); Thakker v. Doll, No. 20 C 0480, Dkt. 47 (M.D. Pa. Mar. 31, 2020) (attached as Ex. G) (same).4 III. Plaintiffs’ Request for a Preliminary Injunction to Remedy Unconstitutional
Conditions of Confinement at the Jail Satisfy Section 3626(a)(2) and Are Necessary, Although Potentially Insufficient, To Protect the Class. A. Plaintiff’s Proposed Injunctive Relief Regarding Conditions at the Jail
Satisfies Section 3626(a)(2). The relief Plaintiffs seek on behalf of the entire Class is, simply, constitutionally compliant Jail conditions so that everyone in the Class is protected from the rampant transmission of a virulent and lethal disease. As set forth in Plaintiffs’ motion for a temporary restraining order or preliminary injunction, the Sheriff must comply with the CDC Guidance for Managing Detention and Correctional Facilities, including specific requirements for quarantine, medical isolation, access to trained medical staff to monitor and provide adequate care, sufficient soap, sanitizer and cleaning supplies, and—importantly—effective social distancing to the maximum possible extent for all staff and detainees. Pls.’ Prelim. Inj. Mot., Dkt. 2, at 15-16. These mandates also echo the expert recommendations of the medical declarants who have extensive experience with Cook County and Illinois correctional medical care, including former medical directors of the Cook County Jail. See Complaint, Ex. B, Dkt. 1-2.
In particular, in their motion for a temporary restraining order or preliminary injunction, Plaintiffs seek an Order from this Court requiring the Jail to immediately take the following actions:
4 There are, of course, questions as to what process would be appropriate to enable the Court to evaluate the claims of the members of Subclass A for a temporary restraining order granting habeas relief. Should the court desire briefing on those questions, Plaintiff is prepared to submit a memorandum on an expedited schedule.
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 Acquire rapid testing for COVID-19 in adequate supply to ensure that all who enter the facility with the coronavirus can be quickly identified and medically isolated;
 Quarantine all new detainees until test results become available or, if testing cannot be done, for 14 days, unless they become symptomatic;
 Medically isolate all detainees who are positive for COVID-19 in a controlled, monitored environment in which they are not at risk for infecting others;
 Quarantine all detainees who are symptomatic and/or have been exposed to a confirmed case of COVID-19 in a controlled, monitored environment for the appropriate time period where they are not at risk for infecting others;
 Provide adequate medical staff to monitor all detainees within the Jail who are in medical isolation or under quarantine;
 Provide sufficient soap and hand sanitizer to all detainees so that detainees may frequently wash their hands;
 Provide masks to all detainees;
 Provide instruction to all staff and to all detainees regarding the importance of regularly sanitizing all surfaces and objects on which the virus could be present;
 Provide the soap and cleaning materials to enable this sanitizing, and supervise to ensure that sanitizing takes place between all uses of such surfaces and objects; and
 Mandate social distancing of detainees such that each is not at risk of exposure.
Dkt. 2 at 17-18. These steps are necessary to protect detainees at the Jail from further uncontrolled spread of COVID-19. They accordingly satisfy the criteria of section 3626(a)(2).
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Section 3626(a)(2) permits a court to order injunctive relief if it finds that the relief, taken as a whole, is narrowly drawn, extends no further than necessary to correct the constitutional violation, and is the least intrusive means necessary to correct the constitutional violation. 18 U.S.C. § 3626(a); see also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010) (rejecting argument that PLRA requires provision-by-provision explanation of district court’s findings; court must make findings considering its “order as a whole”); see also Fields, 653 F.3d at 558 (finding that district court properly complied with PLRA because court “evaluated the record as a whole and identified evidence that fully support[ed] the scope of the injunctive relief” (emphasis added)). The application of this requirement is case-specific, and “must be undertaken in light of both the magnitude of existing constitutional violations and the available alternative remedies.” Morales Feliciano v. Rullan, 378 F.3d 42, 54 (1st Cir. 2004).
In Brown v. Plata, 563 U.S. 493 (2011), the Supreme Court explained that the narrow tailoring required by Section 3626(a) simply mandates “a fit between the [remedy’s] ends and the means chosen to accomplish those ends.” Id. at 531 (internal quotation marks omitted). Although the injunctive relief must not “reach out to improve prison conditions other than those that violate the Constitution[,]” narrow tailoring does not “suggest that a narrow and otherwise proper remedy for a constitutional violation is invalid simply because it will have collateral effects.” Id. Where the constitutional violation at issue is systemwide, systemwide relief is the appropriate, tailored remedy. See, e.g., Benjamin v. Fraser, 156 F. Supp. 2d 333, 345-55 (S.D.N.Y. 2001) (finding that systemwide injunctive relief satisfied the criteria of Section 3626(a) in class action litigation over the conditions of confinement for jail detainees), aff’d, in part, at 343 F.3d 35, 53-54 (2nd Cir. 2003), overruled on other grounds in Caiozzo v. Koreman,
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581 F.3d 63 (2d. Cir. 2009); Braggs v. Dunn, 383 F. Supp. 3d 1218, 1265-1278 (M.D. Ala. May 4, 2019) (same). Indeed as the Second Circuit explained in Benjamin, affirming a district court’s systemwide injunction order pertaining to prison ventilation, a systemwide injunctive order was in fact “more effective and less intrusive than an individual review of each window at the various facilities.” 343 F.3d at 53.
As set forth in the Complaint, the current conditions at the Jail pose a substantial and imminent risk of serious harm to detainees housed there. See Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019). The Complaint sets out evidence that, throughout the Jail, shared communal areas continue to be in use. That includes intake “bull pens” and dormitories for incoming detainees, and the housing of detainees in dormitories and other congregate settings in the Jail. See Dkt. 1 ¶ 40. The Complaint also explains that guards have not consistently worn personal protective equipment (PPE), and that detainees have been given none. Id. ¶ 41. The Complaint details that detainees have had inconsistent or limited access to soap and hand sanitizer, id., and that detainees do not have access to clearing supplies. Id. And it sets out that detainees and staff throughout the Jail touch and share objects throughout the day—from door handles to phones to toilets to tables to lunch trays—that are not cleaned frequently enough to stop the spread of a virus that can live on such surfaces for days. Id. ¶¶ 11, 21, 35, 48.
The requested remedial measures are immediately needed to protect the health and safety of detainees at the Jail, and they are designed to address these failures. The injunctive relief sought by Plaintiffs is supported by the CDC’s guidance on managing COVID-19 in jails, as well as evidence from doctors with experience with the Cook County correctional medical system, including Dr. Puisis, who was the Medical Director of the Cook County Jail from 1991 to 1996
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and Chief Operating Officer for the medical program at the Cook County Jail from 2009 to 2012.
Dkt. 1-2; see also Benjamin, 156 F. Supp. 2d at 345-55 (relying on expert testimony in finding
that systemwide injunctive relief satisfied the needs-narrowness-intrusiveness criteria); Braggs v.
Dunn, 383 F. Supp. 3d 1218, 1265-1278 (M.D. Ala. May 4, 2019) (same).
The requested relief protects not only the class members, but the safety of the public at large, a consideration encompassed within both subsections (a)(1)(A) and (a)(2) (“The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system . . . .”). The Jail is not a closed environment. The measures put in place to protect the Plaintiffs and class members will simultaneously impact the health and well-being of the community at large. The Complaint explains:
By necessity, members of the free community, including correctional officers, social workers, attorneys, medical personnel, and many others must enter and leave jails on a daily basis. Staff arrive and leave each facility three times a day in large numbers, and there is no current, in-place ability to adequately screen staff for new, asymptomatic infection. In addition, new detainees are admitted into jails every day, many of whom may be asymptomatic and thus not flagged for quarantine, even with robust intake screening procedures. When the COVID-19 virus occurs and spreads within a jail, all persons, staff and prisoners alike, are at heightened risk of contracting the virus and, in turn, spreading the virus to others with whom they come in contact in their own homes and neighborhoods.
Complaint, Dkt. 1, at ¶ 25. As the Governor’s March 20, 2020 Executive Order makes clear, public safety is served
by the emergency relief requested.5 The implementation of the CDC Guidance measures and
5 Executive Order in Response to COVID-19 (COVID Executive Order No. 8) (Mar. 20, 2020) (Executive Order), pg. 1-5, available at https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-10.pdf (last visited Apr. 6, 2020); see also “Read Pritzker’s Full Statement Announcing Illinois Stay-at-Home Order Extension,” NBC5 (Mar. 31, 2020), https://www.nbcchicago.com/news/local/read-pritzkers-full-statementannouncing-illinois-stay-at-home-order-extension/2247976/ (last visited Apr. 4, 2020).
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medical experts’ recommendations will prevent prisoners from spreading COVID-19 to one another, then transmitting it to correctional staff, who may spread it to their families and their communities. Cf. United States v. Alabama, 2015 WL 3796526, at *4 (M.D. Ala. June 18, 2015) (approving a settlement that “will promote public safety by not only protecting the prisoners at Tutwiler [Prison for Women] from sexual abuse and harassment, it will also protect the prison guards”); Duvall v. O’Malley, 2016 WL 3523682, *11 (D. Md., June 28, 2016) (approving a consent judgment addressing medical and mental health care and living conditions, and holding that “the facilities will be safer and more orderly when this relief is fully implemented”).
The evidence provided by Plaintiffs in their Complaint and motion for a temporary restraining order amply supports the findings required by Section 3626(a)(2): Experts and government agencies alike describe the measures for which Plaintiffs seek an injunction as necessary to protect against the spread of a deadly virus.
B. Plaintiffs’ Proposed Injunctive Relief May Not Be Sufficient. If the Court issues injunctive relief under Section 3626(a)(2), Plaintiffs respectfully submit that within 24 hours thereafter the Court should decide—either sua sponte pursuant to Section 3626(a)(3)(D), or pursuant to a submission by Plaintiffs under Section 3626(a)(3)(C)— whether to request the convening of a three-judge court to determine whether a prisoner release order should be issued. A timeline this short is extraordinary. But it is called for by the extraordinary circumstances unlike any living person has ever seen, in which a deadly virus has shut down life as we know it around the world and in which crowded U.S. jails and prisons are,
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without intervention, about to become sites of mass sickness and death.6 Section 3626 contemplates precisely such a remedy in circumstances like this.
Section (a)(3) provides that a three-judge panel may consider the appropriateness of a prisoner-release order if, one, the Court has entered an order under Section (a)(2) “to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order,” and two, the Sheriff “has had a reasonable time to comply” with the Section (a)(2) order. 18 U.S.C. §§ 3626(a)(3)(A)(i)-(ii). Plaintiffs seek relief under Section (a)(2) to protect them, and the class they seek to represent, from being incarcerated in a jail where the conditions of confinement have incubated and accelerated the transmission of a fast-moving, lethal virus that threatens to make them seriously ill, damage their internal organs (possibly permanently), or kill them, in a matter of days. Being imprisoned in such circumstances violates Plaintiffs’ rights, as set forth in Plaintiffs’ motion for a temporary restraining order or preliminary injunction. Dkt. 2 at 13-14.
In public statements the Sheriff’s office has repeatedly assured members of the public that it has taken extraordinary steps to protect the jail population from the pandemic. The Sheriff contends that he has made available increased cleaning supplies and personal protective
6 For example, five prisoners have already died in a federal prison in Oakdale, Louisiana. Joseph Neff & Keri Blakinger, “Federal Prisons Agency ‘Put Staff in Harm’s Way’ of Coronavirus, The Marshall Project (Apr. 3, 2020), available at https://bit.ly/2xVAeaE (last visited Apr. 6, 2020). And the Alabama Department of Corrections predicts that its death count will number 185. Connor Sheets, “Alabama prison system’s COVID-19 plan anticipates widespread infection, deaths, National Guard intervention, AL.com (Apr. 5, 2020), available at https://www.al.com/news/2020/04/alabama-prisonsystems-covid-19-plan-anticipates-widespread-infection-deaths-national-guard-intervention.html (last visited Apr. 6, 2020). The top doctor at Rikers Jail in New York days ago called the COVID-19 outbreak a “public health disaster.” Miranda Bryant, “Coronavirus Spread at Rikers is a ‘Public Health Disaster,’ Says Jail’s Top Doctor,” The Guardian (Apr. 1, 2020), available at https://www.theguardian.com/usnews/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster (last visited Apr. 6, 2020); see also Jean Casella and Katie Rose Quandt, “U.S. Jails Will Become Death Traps in Coronavirus Pandemic,” The Guardian (Mar. 30, 2020), available at https://www.theguardian.com/commentisfree/ 2020/mar/30/jails-coronavirus-us-rikers-island (last visited Apr. 6, 2020).
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Case: 1:20-cv-02134 Document #: 26-1 Filed: 04/06/20 Page 18 of 33 PageID #:188
equipment,7 that he has implemented aggressive testing protocols to ensure that sick individuals are quarantined,8 and that he has re-opened an unused portion of the jail to accommodate those quarantined and sick detainees.9 Indeed, the Sheriff’s office has emphasized that it was wellprepared for COVID-19, and that the steps that the Sheriff has taken have been designed to carefully to protect the jail’s population and employees.10
When put in its proper context—234 known cases of COVID-19 among Jail detainees within the span of two weeks—the Sheriff’s assurance that all possible steps to combat the virus have already been taken brings Plaintiffs, and should bring this Court, little comfort. Even if the Sheriff’s media statements are accurate, the official Cook County Department of Corrections (CCDOC) measures are woefully insufficient. Cook County is the host county for the Jail and virtually all its detainees and all of its employees hail from the County. As of this filing, there are 8,054 positive tests for COVID-19 in Cook County, with a total population of 5,150,233, a
7 Tia Ewing, “Inmates concerned as COVID-19 spreads through Cook County Jail,” Fox 32 (Apr. 3, 2020), available at https://www.fox32chicago.com/news/inmates-concerned-as-covid-19-spreadsthrough-cook-county-jail (last visited Apr. 6, 2020).
8 Sean Lewis, “Sheriff Dart working to contain COVID-19 spread in Cook County Jail, WGN (Mar. 31, 2020), available at https://www.fox32chicago.com/news/inmates-concerned-as-covid-19spreads-through-cook-county-jail (last visited Apr. 6, 2020).
9 Cook County Sheriff’s Office, “Sheriff Dart Institutes Comprehensive Precautionary Measures to Address COVID-19 Threat,” (Mar. 20, 2020), https://www.cookcountysheriff.org/sheriff-dartinstitutes-comprehensive-precautionary-measures-to-address-covid-19-threat/.
10 Omar Jimenez, “America’s largest single site jail is home to a new coronavirus cluster,” CNN (Mar. 29, 2020), available at https://www.cnn.com/2020/03/29/us/detroit-coronavirus-cook-countyjail/index.html (last visited Apr. 6, 2020); Bill Hutchinson, “One of the largest single-site jails in the US grapples with 141 coronavirus cases,” ABC News (Mar. 31, 2020), available at https://abcnews.go.com/Health/largest-single-site-jails-us-grapples-141-coronavirus/story?id=69871778 (last visited Apr. 6, 2020).
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known infection rate of 1.56 per 1,000 people.11 In the Jail, by contrast, there are 234 confirmed
infections out of 4,661 detainees and employees—a known infection rate of 50.2 per 1,000 people. That is 32 times the rate in Cook County.12 The first detainee tested positive for COVID-
19 two weeks ago; now 1 in 20 detainees at the Jail are infected. Seventy-eight staff members are infected as well.13 The Jail, in other words, is a dramatic accelerator of COVID-19, the Sheriff’s
efforts notwithstanding. As of today, the Jail is the largest known cluster of COVID-19 infections in the United States.14
There are three probable reasons for this, all of which are detailed in the Complaint.
First, the reports from jail detainees and employees indicate that many of the Sheriff’s
aggressive protocols for cleaning, distribution of soap, and provision of PPE have not been
implemented. The Sheriff’s office has had a month to change its hygiene protocols to combat
11 County infection figures: State of Illinois, Coronavirus (COVID-19) Response, https://coronavirus.illinois.gov/s/ (last visited Apr. 6, 2020). County population: U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/cookcountyillinois/PST120218 (last visited Apr. 6, 2020).
12 Compare Cook County Jail infection figures: Cook County Sheriff, https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ (last visited Apr. 6, 2020), with Cook County Jail population figures: Cook County Sheriff, https://www.cookcountysheriff.org/wpcontent/uploads/2020/04/CCSO_BIU_CommunicationsCCDOC_v1_2020_04_03.pdf (last visited April 6, 2020).
13 The Cook County Sheriff has 3,439 employees. See Cook County Board—Current Budget Information, https://www.cookcountyil.gov/Budget. Plaintiffs do not include jail staff in the Jail’s infection rate because it is unclear how many staff work within the Jail. Additionally Jail staff work at, and are thus exposed to, the Jail only on certain days and for certain times of the day. Indeed news reports suggest that staff have drastically reduced the time they spend at the jail in order to protect themselves, making their high infection rate all the more troubling. See Tyler Kendall, "We're at war with no weapons": Coronavirus cases surge inside Chicago's Cook County Jail,” CBSNews (Apr. 5, 2020), https://www.cbsnews.com/news/chicago-cook-county-jail-coronavirus-life-inside-covid-19-cases/ (last visited Apr. 6, 2020) (reporting that Jail “employees, who interact closely with inmates on a daily basis, are now going in once a week and working from home the other four.”).
14 See Supra, pg. 1 n.1.
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COVID-19. The employee and detainee reports indicate that it is incapable of actually
implementing such changes in such a short time.
Second, there are evidently too many detainees in the jail to implement the social
distancing and quarantining necessary to slow the spread of COVID-19. Social distancing is the sine qua non for stopping COVID-19’s spread.15 The Court need look no further than our
collective experience: in the last few weeks, to achieve social distancing governments around the
world have plunged national economies into likely economic depressions. Were other, less
draconian measures capable of meaningfully slowing COVID-19’s spread, there is no question
that social distancing would never have been ordered.
And as Dr. Puisis and his colleagues explain, however, social distancing is effectively
impossible in correctional settings, for the simple reason that jails and prisons were designed as
congregate security environments where social isolation is impossible. Puisis et al., Dkt. 1-2 ¶¶
23-24.
Third, as Dr. Puisis et al. point out, quarantine can also rapidly become impossible in
such a setting:
Inmates are still being admitted into Cook County Jail. New inmates are being quarantined. Known or suspicious cases of COVID-19 require isolation from others. However, the housing units are not set up for mass quarantine or isolation. The jail was built with security in mind not medical isolation or quarantine. For purposes of quarantine, the jail is cohorting groups of incoming inmates into tiers for a period of time. Because inmates continue to be incarcerated in the Jail, invariably, this will result in a significant portion of the jail dedicated to quarantine. It is recommended that quarantine continue for 14 days. If any individual in the cohort becomes COVID-19 positive, the entire group is again quarantined again for another 14 days. As the number of persons in quarantine
15 Centers for Disease Control, Coronavirus Disease 2019 (COVID-19): Social Distancing, Quarantine, and Isolation, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html (last visited Apr. 6, 2020); Donald G. McNeil Jr., “Restrictions are Slowing Coronavirus Infections, New Data Suggest, N.Y. Times (Mar. 30, 2020), available at https://www.nytimes.com/ 2020/03/30/health/coronavirus-restrictions-fevers.html (last visited Apr. 6, 2020).
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grows, managing them clinically becomes insurmountable and will result in failure to manage. Dkt. 1-2 ¶ 16 (footnote omitted). In other words, the procedure for quarantine that Dr. Puisis describes—limited, as it must be, by the physical structure of the Jail—does not effectively segregate potentially infected, newly arriving detainees from one another, creating a need to quarantine larger and larger segments of the Jail’s population. Eventually, capacity to manage medically those who are in quarantine will overwhelm Jail staff. Some of the detainee declarations attached to Plaintiffs’ complaint suggest that this may already be happening. The exceptional and horrific rate of infection in the Jail and the systemic problems identified in the Complaint—notwithstanding the Sheriff’s insistence that everything possible is being done—suggest a stark reality. Even after the Court would order the Sheriff to comply with CDC Guidance, as Plaintiffs request the Court to do, it will become readily apparent (to the extent it is not already) that those measures alone will be insufficient to protect the class and particularly the members of Subclass A from the unacceptable risk of infection and possible death. Therefore, in the interest of saving lives in this unprecedented health emergency the Court should begin the process of setting up the three-judge panel that Section 3626(a)(3) requires to address the release of some members of the Class, including but not limited to those detainees most vulnerable to the disease. Section 3626(a)(3)(A)(ii) provides that a release order may not be entered until the defendant has had “a reasonable amount of time to comply with” the Court’s Section 3626(a)(2) order. “Reasonable” does not mean moderate or slow—it is a flexible standard designed to match the exigencies of the moment. Kentucky v. King, 563 U.S. 452, 462 (2011) (reasonableness requirement under the Fourth Amendment depends on the circumstances); Tyler
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v. Anderson, 749 F.3d 499, 510 (6th Cir. 2014) (“reasonable time” as used in Federal Rule of Civil Procedure 60(b) “depends on the factual circumstances of each case”). Cf. Black’s Law Dictionary, “Reasonable Time,” (11th ed. 2019) (“The time needed to do what a contract requires to be done, based on subjective circumstances”).
Indeed, the courts have already recognized that Section 3626(a)(3)(A)(ii)’s “reasonable amount of time” provision meets the exigencies of the COVID-19 epidemic. On April 4, the three-judge court in Plata v. Newsom, No. 90 C 0520, Dkt. 3261 (N.D. Cal. April 4, 2020) (attached as Ex. H), which had been impaneled years ago pursuant to an existing release order, held that Plaintiffs had not satisfied Section 3626(a)(3) because the three-judge court had been impaneled for purposes of granting different relief, and thus there had not been the requisite Section 3626(a)(2) order for which defendants had been given a “reasonable amount of time to comply.” In its holding, however, the three-judge court made a point to emphasize that “[w]e recognize that what is reasonable in ordinary times may be quite different from what is reasonable in these extraordinary times.” Id. at 7 n.9. In his concurrence, Chief Judge Mueller emphasized that, while Section (a)(2) had to be complied with first, under the circumstances of the COVID-19 epidemic, the Section (a)(3) release order could still be achieved quickly: “Given the availability of expedited proceedings before those district courts to immediately exhaust the possibility of inmate transfers and relocations to secure facilities to achieve constitutionally acceptable conditions for the Plaintiff classes, those proceedings must be invoked first. Id. at 15 (Mueller, J., concurring) (emphasis added).16
16 If this Court determines that “reasonable time” as used in the PLRA contemplates some fixed, longer period, Plaintiffs respectfully submit that the provision would be unconstitutional as applied. Such an interpretation would unlawfully prevent the application of judicial equitable authority to save people’s lives in the face of an unprecedented pandemic, cf. Helling v. McKinney, 509 U.S. 25, 33 (1993); Estelle v. Gamble, 429 U.S. 97, 103-04 (1976), and must be avoided. See Jones v. United States, 529 U.S. 848, 857 (2000) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366
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Plaintiffs have every reason to believe that the efficacy of any Section (a)(2) order will be quickly exhausted. The Sheriff’s office claims it has already acted with alacrity to stop the virus. Yet COVID-19 is exploding within the jail, and it is growing by the hour. By all appearances, the Sheriff’s office simply does not have the wherewithal to stop the spread of that virus within the Jail’s four walls, despite its efforts. Plaintiffs therefore respectfully suggest that 24 hours is a reasonable amount of time to comply with any Section (a)(2) order, and that thereafter the remedy of removal will likely be required. IV. Subclass B Seeks Transfer Within the Jurisdiction of the Sheriff in Response to a
Growing Pandemic Inside the Jail, Relief That Satisfies the Need-NarrownessIntrusiveness Criteria and Is Not a Prisoner-Release Order. To remedy the spread of the disease, to which members of Subclass B members have already been exposed, the members of that subclass must be transferred to a safe facility or location within the Sheriff’s jurisdiction and control. That relief could include transfer to home confinement or electronic home monitoring (“EHM”), which are programs under the Sheriff’s control and supervision, or to any other safe condition of confinement.17
(1909)) (“where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.”); Gilmore v. California, 220 F.3d 987, 998 (9th Cir. 2000) (9th Cir. 2000) (“The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.”) (citing DeBartolo Corp v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979) (“[A]n Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available.”).
17 Subclass B Plaintiffs do not seek release from CCDOC custody, and thus this request does not implicate the mandates of Preiser v. Rodriguez, 411 U.S. 475 (1973). Cf. Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005) (“In Preiser v. Rodriguez, the Supreme Court held that the writ of habeas corpus was the exclusive civil remedy for prisoners seeking release from custody.”).
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A. Plaintiffs’ Requested Transfer Is Within the Court’s Equitable Authority and Does Not Require the Sheriff to Exceed His Statutorily Prescribed Authority.
Nothing in the PLRA displaces district courts’ “broad equitable powers to order the transfer of inmates to facilities better equipped to provide for their medical needs.” Reaves v. Dep’t of Correction, 392 F.Supp.3d 195, 209-10 (D. Mass. 2019) (stay pending appeal denied, 404 F. Supp. 3d 520) (citing Johnson v. Harris, 479 F. Supp. 333 (S.D.N.Y. 1979) (ordering prison to either transfer inmate to facility equipped to provide for his medical needs or to insure he is provided with adequate care stemming from prison’s deliberate indifference to inmate’s serious medical needs); United States v. Wallen, 177 F. Supp. 2d 455, 458 (D. Md. 2001) (ordering transfer of pretrial detainee to a hospital since “the Marshal’s Service cannot assure this Court that it will provide the medical care that the Constitution mandates so long as he is held at MCAC”).18 This court, accordingly, may—and indeed must—order the transfer of prisoners from a facility infected with COVID-19 to another location within the Sheriff’s control (where they will remain in the Sheriff’s custody) to ensure that they receive constitutionally adequate medical care and are protected from physical harm. Cf. Farmer v. Brennan, 511 U.S. 825, 847 (1994) (prison official can be liable “for denying humane conditions of confinement” where “he knows inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”); Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (“If a risk from a particular course of medical treatment (or lack thereof) is obvious
18 See also, e.g., ABA Standards for Criminal Justice, 23-6.2 (3d ed. 2011) (“A prisoner who requires care not available in the correctional facility should be transferred to a hospital or other appropriate place for care.”); cf. Murphy v. Lane, 833 F.2d 106 (7th Cir. 1987) (court could consider plaintiff’s civil rights claim for retaliatory transfer stemming from prison officials’ transfer of plaintiffs to different prison less well-equipped to handle his psychiatric needs).
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enough, a factfinder can infer that a prison official knew about it and disregarded it.”) (citations omitted) (emphasis added).
And transfers of detainees are in fact directly contemplated by the Sheriff’s state law authority under the County Jail Act, 730 ILCS 125/14, which states:
At any time, in the opinion of the Warden, the lives or health of the prisoners are endangered or the security of the penal institution is threatened, to such a degree as to render their removal necessary, the Warden may cause an individual prisoner or a group of prisoners to be removed to some suitable place within the county, or to the jail of some convenient county, where they may be confined until they can be safely returned to the place whence they were removed. Under the County Jail Act, transfer within the county includes to Electronic Home Monitoring (EHM), a program that is administered by the Sheriff. As the Sheriff emphasized in separate litigation concerning EHM, a case that was recently heard in the Seventh Circuit, it is solely within his Office’s discretion whether to place pre-trial individuals in his custody on Electronic Monitoring: “Whether a given pretrial defendant is placed in the Sheriff’s EHM Program as a condition of bond is a discretionary decision of the Sheriff’s custody of prisoners on electronic monitoring.” Br. of Defendant Appellees at 8 (attached as Ex. A), Williams v. Dart, Case No. 19-02108 (7th Cir.); see also id. at 7-8 (“The Sheriff’s pretrial EHM Program is not a creature of statute—it is his own. Sheriff Dart has discretion to set parameters or guidelines for admission into his program. Whether a given pretrial defendant is placed in the Sheriff’s EHM Program as a condition of bond is a discretionary decision of the Sheriff’s.”). Anyone transferred to the Sheriff’s EHM program as part of the requested relief requested by Subclass B would be subject not only to the conditions of that program as administered by the Sheriff, but by the strict conditions imposed by the Governor’s emergency order, which prohibits non-essential travel and engaging in non-essential business, and mandates
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everyone in the state to stay at their home or place of residence except when engaging in essential activities.19
B. The Requested Relief is Not a Prisoner Release Order. An order mandating the removal of Subclass B prisoners from the Jail to another location in the Sheriff’s custody, including but not limited to EHM, does not constitute a “prisonerrelease order” as envisioned by 18 U.S.C. § 3626(a)(3), and thus does not mandate the impaneling of a three-judge panel, for two reasons. First, the relief does not constitute a prisoner-release order because it does not concern prison crowding, which is what the relevant provision of the PLRA was enacted to address. For more than two decades, district courts have found that Section 3626(a)(3) does not apply to orders remedying violations of federal rights other than overcrowding. In Doe v. Younger, No. 91-187 (E.D. Ky. Sept. 4, 1996), Op. and Order (attached as Ex. B) at 10-12, the district court banned the housing of juveniles for more than 15 days in jail, where conditions were unacceptable for children. The court held that this was not a prisoner release order requiring a three-judge court under the PLRA, even where it had the effect of reducing the number of children in the facility: “[T]he court’s order does not direct the release of any child. It is undisputed that counties . . . often house juveniles in need of a secure facility in other counties. In fact, such transfers from facilities in one county to facilities in another county or even another state are extremely common. Indeed, the Kentucky Juvenile Code specifically contemplates such transfers.”
19 See supra, Executive Order n.5. The applicability of the stay-at-home order to any class members transferred within the Sheriff’s jurisdiction is also relevant to the PLRA’s “needs-narrownessintrusiveness” analysis, discussed in Part C, infra.
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In Plata v. Brown, No. C01-1351-TEH, 2013 WL 3200587, at *8-10 (N.D. Cal. June 24,
2013), the court was faced with the sweeping transmission of coccidioidomycosis, or Valley
Fever, “an infectious disease caused by inhalation of a fungus,” in certain prisons within the
California state prison system. Id. at *2. The court granted an exclusionary order for medically
vulnerable prisoners, rejecting the defendants’ argument that the PLRA barred the requested
relief unless issued by a three-judge court:
Here, looking at the [PLRA] statute as a whole requires reading the definition of “prisoner release order” in conjunction with the requirements for entering one. One such requirement is that a three judge court must determine, by clear and convincing evidence, that “crowding is the primary cause of the violation of a Federal right,” before it can enter a prisoner release order. 18 U.S.C. § 3626(a)(3)(E)(i). Consequently, adopting Defendants’ interpretation of “prisoner release order” would mean that a court could only order that prisoners be transferred from one prison to another if overcrowding were the primary cause of the violation of those prisoners’ rights, and not if any other reason were causing the violation. Defendants have failed to point to anything in the legislative history that indicates an intent to limit the protection of inmates’ constitutional rights in this manner . . . .
Id. at *9; see also Reaves, 404 F. Supp. 3d at 523 (same).
The Plata Court emphasized that “a statute should not be construed to displace courts’
traditional equitable powers [a]bsent the clearest command to the contrary.” Id. at * 9 (citing
Gilmore v. California, 220 F.3d 987, 997 n.12, and Weinberger v. Romero-Barcelo, 456 U.S.
305, 313 (1982) (“Unless a statute in so many words, or by a necessary and inescapable
inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be
recognized and applied.” (quotation marks and citations omitted))). And the PLRA’s legislative
record indicates that Congress did not intend to limit courts’ ability to move or transfer prisoners
as a result of other (non-crowding) constitutional violations—including those presented here. See
Reaves, 404 F. Supp. 3d at 523 (“Accepting Defendants argument would mean that the only way
a district court can order the release of a prisoner is for a violation of his constitutional rights
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where overcrowding caused the violation, but not if any other reason caused the violation. Defendants have failed to present anything in the legislative history which evidences Congressional intent to limit the protection of inmates’ constitutional rights in this way— presumably because there is no such history.”).
In reaching their conclusions that the PLRA did not preclude orders that transferred medically vulnerable inmates, both the Doe Court and the Plata Court found the PLRA’s legislative history to be consistent with the relief Plaintiffs seek here, because Congress enacted the PLRA’s restrictions out of concern with prison population caps. See, e.g., Plata, 2013 WL 3200587, at *9 (“Sponsors of the PLRA were especially concerned with courts setting ‘population caps’ and ordering the release of inmates as a sanction for prison administrators’ failure to comply with the terms of consent decrees designed to eliminate overcrowding.”) (citing Gilmore v. California, 220 F.3d 987, 998 n.14 (9th Cir. 2000)); Doe v. Younger, Ex. B, at 11 (“After reviewing the substantive provisions concerning prisoner release orders and the legislative history underlying this provision of the PLRA, it is clear that the prisoner release order provisions are directed at prison caps, i.e., orders directing the release of inmates housed in a particular institution once that institution houses more than a specific number of persons. This is not that kind of case.”); see also 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of Sen. Dole) (attached as Ex. C) (“Perhaps the most pernicious form of micromanagement is the so-called prison population cap…. By establishing tough new conditions that a Federal court must meet before issuing a prison cap order, this bill will slam-shut the revolving prison door.”); Margo Schlanger, Anti-Incarcerative Remedies for Illegal Conditions of Confinement, 6 U. Miami Race & Soc. Just. L. Rev. 1, 27-28 (2016) (attached as Ex. D) (collecting congressional testimonies and reports identifying federal court-imposed prison population caps as the target of
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the PLRA). Senators who supported Section 3626’s restrictions did so expressly in response to federal court decisions “dictat[ing] prison population size and order[ing] excess prisoners released.” 142 Cong. Rec. S10576-02, 1996 WL 522797 (remarks of Sen. Abraham) (attached as Ex. E). Indeed, an earlier version of a bill similar to the PLRA made direct reference to this purpose. The proposed amendment to Section 3626(a)(2), concerning “any relief whose purpose or effect is to reduce or limit the prison population” was specifically titled, “Restrictions on Court-Ordered Relief In Prison Overcrowding Cases.” See Judicial Impact Statement, Violent Criminal Incarceration Act of 1995, H.R. 667 (June 21, 1995) (attached as Ex. F), at 4.20
Second, the requested relief is not the release of prisoners but only the transfer of those class members to another jurisdiction under the Sheriff’s control (i.e., on EHM, as set forth in Part A, supra), to remedy an undeniable and growing health crisis. Accordingly, Section 3626(a)(3) does not apply. See Doe v. Younger, Ex. B, at 12 (“[T]he court’s order does not direct the release of any child.”); see also Plata, 2013 WL 3200587, at *8 (prison-release order provisions of PLRA did not apply to order granting Plaintiffs’ motion for mass transfer of prisoners in response to outbreak of infectious disease in California correctional facilities); Reaves, 404 F. Supp. 3d at 523 (holding that a three-judge panel was not required for order of transfer of quadriplegic prisoner to a non-corrections facility in which he would be treated by a physician with training to care for his substantial and numerous medical needs, as remedy for defendants’ failure to provide adequate medical care).
20 If Section 3626 is interpreted to preclude prisoner transfer to address an imminent risk of serious illness or death arising from a deadly virus, this provision would also be unconstitutional as applied for the same reasons set forth in Section III, supra n.16.
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C. The Relief Requested for Subclass B is Narrowly Drawn, Extends No Further than Necessary, and is the Least Intrusive Means Necessary to Address the Violations at Stake.
The relief requested for Subclass B, like the relief requested for the Class as a whole, meets the need-narrowness-intrusiveness criteria in Section 3626(a). Because of the gravamen of the underlying complaint, which implicates literal matters of life or death, there is a strong fit between the violations at stake (the exposure of incarcerated individuals to conditions of confinement that threaten their health and safety), see Helling, 509 U.S. at 33, and the requested remedy (an order requiring the Sheriff to impose essential safeguards like social distancing and medical care or, to transfer prisoners from the physical facility where those conditions exist). See Reeves, 404 F.Supp.3d at 524 (transfer order met PLRA’s narrow tailoring requirements where inmate would die if he was not moved); cf. Morales Feliciano, 378 F.3d at 54 (“The narrownessneed-intrusiveness criteria are, to some extent, self-explicating . . . . The application of those criteria is case-specific and must be undertaken in light of both the magnitude of existing constitutional violations and the available alternative remedies.”). As discussed more fully above, the Jail is facing a crisis the likes of which has not been seen before. Subclass B members have already been exposed and therefore urgently require transfer to a safe place until the pandemic is over. District courts (including several in this Circuit) have granted a prisoner’s request for preliminary injunctive relief in far less urgent situation circumstances than are facing Plaintiffs in this Court.21
21 See, e.g., Abu-Jamal v. Wetzel, 2017 WL 34700, at *12-20 (M.D. Pa. Jan. 3, 2017) (granting preliminary injunction requiring treatment of plaintiff’s Hepatitis C with direct-acting antiviral medication such as Harvoni); Norsworthy v. Beard, 87 F.Supp.3d 1164, 1195 (N.D. Cal. 2015) (granting preliminary injunction to “provide Plaintiff with access to adequate medical care, including sex reassignment surgery”), appeal dismissed as moot and remanded, 802 F.3d 1090 (9th Cir. 2015); Francis v. Hammond, 2013 WL 12167887, at *6-7 (W.D. Wash. Mar. 4, 2013) (recommending preliminary injunction requiring orthopedic evaluation of plaintiff’s shoulder injury), report and recommendation adopted, 2013 WL 12167888 (W.D. Wash. Apr. 10, 2013); McNearney v.Washington Dep’t of Corrs.,
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Finally, because whatever order this Court enters will leave full control and supervisory
authority of the class members with the Sheriff and his correctional staff, there is little risk that
the relief would adversely impact the criminal justice system. Compare Turner v. Clelland, 2016
WL 1069665, *4 (M.D.N.C., Mar. 16, 2016) (citing adverse impact provision in denying relief
requiring “involving a federal court in the day-to-day administration of a prison”).
CONCLUSION
In summary, Plaintiffs’ requests for injunctive relief under Section 1983 meet the
PLRA’s need-narrowness-intrusiveness requirements because they seek narrowly drawn
injunctive relief that extends no further than what is required to correct the significant and
ongoing constitutional violation. Neither of Plaintiffs’ current requests for Section 1983
injunctive relief constitutes a prisoner release order and thus the requirements of 18 U.S.C.
3626(a)(3) do not apply. Given the imminent threat facing the Jail, however, Plaintiffs believe
2013 WL 392490, at *2-3 (W.D. Wash. Jan. 9, 2013) (noting prior order to provide required medical care, modifying order to terminate upon the plaintiff’s impending release, which might occur before surgery could be performed, to make the order narrowly drawn and least intrusive), report and recommendation adopted, 2013 WL 392489 (W.D. Wash. Jan. 31, 2013); Mitts v. Obandina, 2012 WL 4060013, at *2 (S.D. Ill. Aug. 27, 2012) (granting preliminary injunction to provide prescribed medical care, holding order “the least intrusive means to correct the treatment deficiency”), report and recommendation adopted, 2012 WL 4059982 (S.D. Ill. Sept. 14, 2012); Chan v. County of Sacramento, 2011 WL 2636262, at *4 (E.D. Cal. July 5, 2011) (recommending preliminary injunction requiring defendants to have plaintiff examined by an independent dentist competent to perform root canals, permanent fillings, and dentures in order to develop and act on a treatment plan, though declining to recommend specific procedures); Flynn v. Doyle, 630 F.Supp.2d 987, 993-94 (E.D. Wis. 2009) (preliminarily enjoining defendants to submit a plan to ensure that medication is dispensed by persons with credentials equal to Licensed Practical Nurses, that they are trained in prison procedures, and that medication orders are timely processed and dispensed); Perez v Cate, 2009 WL 440508, at *4-5 (N.D. Cal. Feb. 23, 2009) (granting modification of stipulated injunction providing for improved dental care to prohibit the out of state transfer of prisoners who require dental care within 120 days; rejecting plaintiff’s proposal to stop the transfers entirely pending creation of a revised screening process as not narrowly tailored and least intrusive); Farnam v. Walker, 593 F.Supp.2d 1000, 1017-18 (C.D. Ill. 2009) (preliminarily enjoining defendants to get the patient to an accredited Cystic Fibrosis Center for examination by a board-certified pulmonologist, and implement that specialist’s medical treatment recommendations; specifying treatment to be provided pending that examination); see also Plata, 2013 WL 3200587 at *14-15 (directing removal of prisoners at risk for Valley Fever from prisons where it was prevalent; relying on expert evidence and professional society standards in determining compliance with § 3626).
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that a three-judge panel should be convened in the event that immediate compliance with the Constitution is not achieved to protect Class Members from further harm.
Respectfully submitted, /s/ Sarah Grady Sarah Grady Attorney for Plaintiffs Stephen Weil Sarah Grady Loevy & Loevy 311 North Aberdeen St., 3rd Fl. Chicago, IL 60607 (312) 243-5900 Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Ave. Chicago, IL 60611 (312) 503-0884 Charles Gerstein (pro hac vice application pending) Alec Karakatsanis (pro hac vice application forthcoming) Civil Rights Corps 1601 Connecticut Ave NW, Ste. 800 Washington, DC 20009 (202) 894-6128
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Case: 1:20-cv-02134 Document #: 26-1 Filed: 04/06/20 Page 33 of 33 PageID #:203 CERTIFICATE OF SERVICE
I, Sarah Grady, an attorney, hereby certify that on April 6, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system, which effected service on all counsel of record.
/s/ Sarah Grady Sarah Grady Attorney for Plaintiffs
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EXHIBIT A

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 2 of 44 PageID #:205

No . 19-2108
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

TAPHIA WILLIAMS, et al. Plaintiffs-Appellants, v.
THOMAS DART, et al.
Defendants-Appellees.

) ) ) District Court for the ) Northern District of Illinois ) District Court No. 18 CV 1456 ) ) Hon. Harry D. Leinenweber ) ) Judge Presiding ) )

BRIEF OF DEFENDANTAPPELLEES THOMAS DART, ET AL.

Richard Gleason O’Mara Gleason O’Callaghan, LLC 230 W. Monroe St., Ste 2620 Chicago, Illinois 60606 312 600-5588

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page S3aovef 4A4s PageID #C:2le0a6r Form

APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: _1_9_-2_1_0_8_________
Short Caption: _T_a_p_h_ia__W_i_lli_a_m_s_,_e_t_a_l_. _v_._T_h_o_m__a_s_D_a_r_t __________________________________________________________
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party, amicus curiae, intervener or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statements be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in the front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IS ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1)

The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure

information required by Fed. R. App. P. 26.1 by completing item #3):

_C_o_o_k__C_o_u__n_ty__S_h_e_r_if_f_T_o_m__D__a_r_t _____________________________________________________________________________

________________________________________________________________________________________________________

(2)

The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or

before an administrative agency) or are expected to appear for the party in this court:

_R_ic_h__a_rd__G__le_a_s_o_n__a_n_d__P_e_t_e_r_O__'M__a_ra_,__o_f _O_'_M_a_r_a_,_G__le_a_s_o_n__, _&__O_'C__a_ll_a_g_h_a_n_,_L__L_C_____________________________________

________________________________________________________________________________________________________

(3)

If the party, amicus or intervener is a corporation:

i)

Identify all its parent corporations, if any; and

_n_/_a_____________________________________________________________________________________________

ii)

list any publicly held company that owns 10% or more of the party’s, amicus’ or intervener’s stock:

_n_/a______________________________________________________________________________________________

(4)

Provide information required by FRAP 26.1(b) – Organizational Victims in Criminal Cases:

_n_/a______________________________________________________________________________________________________

(5)

Provide Debtor information required by FRAP 26.1 (c) 1 & 2:

_n_/a______________________________________________________________________________________________________

Attorney’s Signature: _/s_/_R_i_c_h_a_rd__G_l_e_a_so_n_________________________ Date: D__e_c_e_m_b_e_r_1_3_,_2_0_1_9_________________________ Attorney’s Printed Name: _R__ic_h_a_rd__G_l_e_a_s_o_n____________________________________________________________________
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes _____ No _____ Address: _2_3_0_W__._M_o_n_r_o_e_S__u_ite__2_6_2_0_________________________________________________________________________
_C_h_i_c_a_g_o_,_I_L_6_0_6__0_6________________________________________________________________________________________
Phone Number: _3_1_2_.6_0_0_._5_5_8_8_____________________________ Fax Number: _7_7_3_.3_0_9_._4_4_9_6___________________________
E-Mail Address: r_ic_h__a_rd_._g_l_e_a_s_o_n_@__o_g_o_l_a_w_y_e_r_s_.c_o__m_____________________________________________________________________ rev. 12/19 AK
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TABLE OF CONTENTS DISCLOSURE STATEMENTS................................................................................................ ii
TABLE OF CONTENTS......................................................................................................... iii
TABLE OF AUTHORITIES..................................................................................................... v
JURISDICTIONAL STATEMENT...........................................................................................1
STATEMENT OF THE ISSUES ...............................................................................................1
STATEMENT OF THE CASE ..................................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................................2
STANDARD OF REVIEW .......................................................................................................3
ARGUMENT ............................................................................................................................4
I. The District Court Did Not Err in Finding that Sheriff Dart Could Not Be Compelled by a State Circuit Court Judge to Enroll the Appellants in the Sheriff’s EHM Program. ..............................................................................................................4 A. A Special Condition of EHM Contained in a Bond Order is Not Binding on the Sheriff...........................................................................................................4 B. Sheriff Dart is Not Judicially Estopped from Stating that He is Not Bound by Virtue of a Bond Court Order to Enroll a Pretrial Defendant into Sheriff Dart’s Pretrial EHM Program. .......................................................................10
II. The District Court Did Not Err in Dismissing Appellants’ Fourteenth Amendment Substantive Due Process Claim...........................................................12
III. The District Court Did Not Err in Dismissing the Appellants’ Racial Discrimination Claims Under the Fourteenth Amendment and the Illinois Civil Rights Act. ...................................................................................................................20
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Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 5 of 44 PageID #:208 IV. The District Court Did Not Err in Dismissing the Appellants’ Fourth
Amendment Claim. ....................................................................................................27 V. The District Court Did Not Err in Denying the Appellants’ Motion to Certify an
Injunctive Class...........................................................................................................29 A. Appellants’ Purported Class Fails to Satisfy the Numerosity Requirement.
.......................................................................................................................... 29 B. Appellants’ Purported Class Fails to Satisfy the Commonality and
Typicality Requirements.................................................................................32 C. Appellants’ Counsel Has Not Demonstrated They Possess the Requisite
Experience Pursuant to Fed. R. Civ. P. 23(g)(1)(A)(ii)..................................34 CONCLUSION .......................................................................................................................35
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TABLE OF AUTHORITIES Cases Anderson v. Simon, 217 F.3d 472, 474 (7th Cir. 2000)............................................... 24 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)......................................................... passim Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) .................................................. 3 Bell v. Wolfish, 441 U.S. 520, 548 (1979) .............................................................. 16, 20 Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 442 (1992) ...................... 5 Catinella v. Cnty. of Cook, 881.F.3d 514 (7th Cir. 2018)............................................ 13 Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) ............................................ 13 Cole v. Milwaukee Area Tech. Coll. Dist.,
634 F.3d 901, 903 (7th Cir. 2011) .......................................................................... 3, 4 Conley v. Gibson, 355 U.S. 41, 47 (1957) ...................................................................... 3 Dawson v. Dart, No. 11 C 7300,
2018 WL 2267792 (N.D. Ill. May 16, 2018) ................................................. 10, 12, 15 Dep't of Mental Health v. Cnty. of Madison (In re Peak),
59 Ill. App. 3d 548, 551 (5th Dist. 1978) ................................................................... 7 Gerstein v. Pugh, 420 U.S. 103, 114 (1975)................................................................. 28 Harper v. Sheriff of Cook Cnty., 581 F.3d 511 (7th Cir. 2009)................................... 32 Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009))...................................... 3 Lacy v. Cook Cnty., Il., 897 F.3d 847, 863 (7th Cir. 2018)............................................ 4 Lewis v. City of Chicago, 914 F.3d 472, 475 (7th Cir. 2019) ........................................ 3 Manuel v. City of Joliet, 137 S. Ct. 911, 914 (2017) ............................................. 27, 28
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Metzger v. DaRosa, 209 Ill. 2d 30, 44 (2004)................................................................. 5 People v. Izzo, 195 Ill. 2d 109, 116 (2001) ..................................................................... 7 People v. Stinger, 22 Ill. App. 3d 371, 373 (2nd Dist. 1974) ..................................... 8, 9 Richman v. Sheahan, 270 F.3d 430, 437 (7th Cir. 2001) ............................................ 11 United Cent. Bank v. Davenport Estate LLC,
815 F.3d 315, 318 (7th Cir. 2016) ................................................................ 14, 26, 28 United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008) ....................................... 15 Vance v. Bradley, 440 U.S. 93 (1979) .......................................................................... 20 Venture Assocs. Corp. v. Zenith Data Sys. Corp.,
987 F.2d 429, 431 (7th Cir. 1992) ............................................................................ 22 Zachary Robinson v. Leroy Martin Jr.,
2016 CH 13587 (Cir. Ct. Cook County 2016) .................................................... 10, 11 State Constitutional Provisions ILL. CONST. 1970, ART. II, § 1 ........................................................................................ 7 Statutes 55 ILL. COMP. STAT 5/3-6019 (2018)......................................................................... 1, 10 55 ILL. COMP. STAT 5/3-6020 (2018)......................................................................... 1, 10 55 ILL. COMP. STAT. 5/3-6021 (2018)............................................................................ 16 725 ILL. COMP. STAT. 5/102-6 “Bail” (2018) ................................................................. 14 725 ILL. COMP. STAT. 5/102-7 “Bail Bond” (2018) ....................................................... 14 725 ILL. COMP. STAT. 5/110-10(b)(13) (2018) ........................................................... 6, 11 725 ILL. COMP. STAT. 5/110-10(b)(14) (2018) ................................................................. 5
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Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 8 of 44 PageID #:211 725 ILL. COMP. STAT. 5/110-5 (2018)............................................................................ 15 725 ILL. COMP. STAT. 5/110-7 “Deposit of Bail Security” (2018)................................. 14 730 ILL. COMP. STAT. 5/5-8, et seq. (2018)...................................................................... 6 Fed. R. Civ. P. 8(a)(2)..................................................................................................... 3 Other Authorities Cir. R. 28(b) .................................................................................................................... 1 Fed. R. Civ. P. 8(a)(2)..................................................................................................... 3
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JURISDICTIONAL STATEMENT The jurisdictional statement of Appellant-Plaintiffs, Taphia Williams, et al., is complete and correct pursuant to Cir. R. 28(b).
STATEMENT OF THE ISSUES 1. Whether the district court properly granted Sheriff Dart’s motion to dismiss the Appellants’ claims under 55 ILL. COMP. STAT 5/3-6019-20 alleging that Sheriff Dart failed to carry out valid court orders. 2. Whether the district court properly granted Sheriff Dart’s motion to dismiss the Appellants’ Fourth and Fourteenth Amendment substantive due process claims. 3. Whether the district court properly granted Sheriff Dart’s motion to dismiss the Appellants’ Fourteenth Amendment and Illinois Civil Rights Act equal protection claims. 4. Whether the district court properly granted Sheriff Dart’s motion to dismiss the Appellants’ Fourth Amendment claim for unlawful detention. 5. Whether the district court abused its discretion in denying the Appellants’ motion for class certification.
STATEMENT OF THE CASE The Appellants assert that a state court can compel Sheriff Dart to place pretrial defendants into Sheriff Dart’s pretrial electronic home monitoring program (hereinafter “pretrial EHM program”). This assertion is the foundation of all but the
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Appellants’ equal protection claims, and—as the district court correctly determined— the assertion is without support in the law.
Additionally, the Appellants argue in their equal protection claims that Sheriff Dart’s decision to initially deny the Appellants immediate admission into his pretrial EHM program was both motivated by the race of the Appellants, and disparately impacted minorities. As the district court correctly determined, the Appellants’ allegations were conclusory and insufficient to state a claim.
Finally, the district court was correct to deny the Appellants’ motion for class certification on the basis of typicality, though, the district court would also have been correct to deny their motion for class certification on the basis of either commonality or numerosity, or because the Appellants’ counsel failed to fully explain their expertise and adequacy in serving as class counsel.
The district court’s dismissal of the Appellants’ claims and denial of the Appellants’ motion for class certification should be affirmed.
SUMMARY OF THE ARGUMENT Appellants’ entire appeal is predicated on their mistaken notion that they had a right to placement in Sheriff Dart’s EHM Program by virtue of their bond court judge’s bail order, and that a state court has the authority to compel Sheriff Dart to place a given criminal defendant into the Sheriff’s Pretrial EHM Program. These theories are without support in Illinois law. There is no statutory or constitutional right to placement in the Sheriff’s EHM Program. Without a statutory or constitutional right to placement in Sheriff Dart’s program, and because orders purporting to
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compel Appellants’ placement in Sheriff Dart’s EHM Program are incapable of vesting Appellants with such a right, Appellants fail to identify a constitutional right that was violated. Appellants thus failed to state any cognizable claim in any of their equal protection claims, due process claims, or state law claims alleging that Sheriff Dart failed to execute “facially valid, binding orders.”
Additionally, the district court was correct to conclude that Appellants’ allegations of race-based discrimination were conclusory in nature, and thus not entitled to the presumption of plausibility.
STANDARD OF REVIEW This Court reviews the district court’s Rule 12(b)(6) dismissal de novo. Lewis v. City of Chicago, 914 F.3d 472, 475 (7th Cir. 2019). Under the Federal Rules of Civil Procedure, a complaint’s allegations need only to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint must “include sufficient facts ‘to state a claim for relief that is plausible on its face.’” Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011) (quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
3

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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In ruling on a Rule 12(b)(6) motion, the court “construe[s] the . . . [c]omplaint in the light most favorable to Plaintiff, accepting as true all well-pleaded facts and drawing all possible inferences in his favor.” Cole, 634 F.3d at 903.
This Court reviews the district court’s denial of class certification under an abuse of discretion standard. Lacy v. Cook Cnty., Il., 897 F.3d 847, 863 (7th Cir. 2018). Abuse of discretion occurs “when a district court commits legal error or clearly erroneous factual findings. Id.
ARGUMENT I. The District Court Did Not Err in Finding that Sheriff Dart Could Not
Be Compelled by a State Circuit Court Judge to Enroll the Appellants in the Sheriff’s EHM Program. The district court was correct to dismiss Appellants’ claims, and the district court’s decision should be affirmed. Illinois law does not permit a state court to compel Sheriff Dart to place a pretrial defendant into his EHM program. First, a bond order setting forth EHM as a special condition of such bond is not binding on Sheriff Dart. Second, Sheriff Dart is in no way judicially estopped from making this argument. A. A Special Condition of EHM Contained in a Bond Order is Not Bind-
ing on the Sheriff. While the Sheriff seeks to accommodate a court’s EHM orders whenever possible, he is not mandated to accept a given defendant into his EHM program merely by virtue of a court order purporting to require EHM supervision by the Sheriff as a special condition of bond. Illinois courts do not have the authority to compel the
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Sheriff to monitor defendants via EHM while those defendants are out on bond in a pretrial setting. The Illinois Code of Criminal Procedure generally, and Illinois’ bail statute specifically, delineates the entities whom Illinois courts may compel to electronically monitor such a defendant on bond. The bail statute provides that, as a special condition of bond, a court may order that a defendant:
Be placed under direct supervision of the Pretrial Services Agency, Probation Department or Court Services Department in a pretrial bond home supervision capacity with or without the use of an approved electronic monitoring device subject to Article 8A of Chapter V of the Unified Code of Corrections [730 ILCS 5/5-8A-1]. 725 ILL. COMP. STAT. 5/110-10(b)(14) (2018) (emphasis added.) Pretrial Services, the Probation Department, and the Court Services Department are all departments within the Office of the Chief Judge. Any mention of the Sheriff is omitted. “Where a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions ***.” Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 442 (1992). This rule of statutory construction is based on logic and common sense.” Metzger v. DaRosa, 209 Ill. 2d 30, 44 (2004). In contrast, the Illinois bail statute further provides that other agencies (the Sheriff’s Department, for example) may provide pretrial EHM, if that agency agrees to provide such service. Specifically, the Illinois bail statute states that a court may order as a condition of bond that a defendant: Remain in the custody of such designated person or organization agreeing to supervise his release. Such third party custodian shall be responsible for notifying the court if the defendant fails to observe the conditions of release which the custodian has agreed to monitor, and shall be subject to contempt of court for failure so to notify the court.
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725 ILL. COMP. STAT. 5/110-10(b)(13) (2018) (emphasis added). A court order is a prerequisite enabling the Sheriff to place a given defendant on EHM. It is not a basis to compel such monitoring, because the Sheriff, like any other third-party designee contemplated by the statute, must agree to the monitoring.
In the present case, Sheriff Dart did not agree to supervise the release of the Appellants, because of the nature of the charges against the Appellants, the criminal background of the Appellants, and/or because the Appellants lacked a suitable residence from which to be electronically monitored.
As made clear in the statute, county courts may compel EHM through their own offices—i.e. the Probation Department, Pretrial Services, or Court Services—but they may not so compel the Sheriff. If an Illinois court wishes to compel EHM of a given defendant in a pretrial setting, such a court can instead mandate that one of its own departments provide that monitoring pursuant to 725 ILL. COMP. STAT. 5/11010(b)(13). If such an order were entered in any of these cases, the Sheriff would have released Appellants.
By comparison, in the post-conviction setting, the authority for Illinois courts to order EHM through the “supervising authority” (defined to include the local sheriff) is based in statute, specifically 730 ILL. COMP. STAT. 5/5-8, et seq. (2018). This distinction illustrates the statutory state of Illinois law: Illinois courts do not have the statutory authority to impose upon the Sheriff an obligation to monitor a defendant on bond through EHM in a pretrial setting—that authority was never granted to the courts.
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Appellants assert that Sheriff Dart doesn’t have the right to disregard orders just because he disagrees with those orders. But that misses the point entirely. To the extent that these EHM orders purport to be binding on Sheriff Dart, those orders are void, and Sheriff Dart is not obligated to follow them. The Illinois Constitution states: "The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." ILL. CONST. 1970, ART. II, § 1. "The purpose of this doctrine is to ensure that each of the three branches of government retains its own sphere of authority, free from undue encroachment by the other branches." People v. Izzo, 195 Ill. 2d 109, 116 (2001).
The limitations of a circuit court’s power to compel has long been recognized in Illinois. In discussing a circuit court order seeking to compel the provision of mental health treatment to a minor, the Illinois appellate court held that in the absence of statutory authority, the juvenile court could not order that a minor be treated at a private psychiatric hospital nor that the Department of Mental Health and Developmental Disabilities pay for such care. The court held that “the circuit court may not exceed its statutory authority no matter how desirable or beneficial the attempted innovation might be." Dep't of Mental Health v. Cnty. of Madison (In re Peak), 59 Ill. App. 3d 548, 551 (5th Dist. 1978).
A court seeking to compel the Sheriff to place the petitioner on the Sheriff’s EHM Program would be exceeding its statutory authority, encroaching upon the executive branch, and encroaching upon the discretion of the Sheriff, a constitutional officer. The Sheriff’s pretrial EHM Program is not a creature of statute—it is his own.
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Sheriff Dart has discretion to set parameters or guidelines for admission into his program. Whether a given pretrial defendant is placed in the Sheriff’s EHM Program as a condition of bond is a discretionary decision of the Sheriff’s.
In some cases, the basis for that discretionary decision is the petitioner’s lack of a suitable address from which to be monitored. In other cases, it is the nature of a defendant’s pending charge, or a defendant’s violent recidivist background, the flight risk posed by a given defendant, or a combination of one or more of the foregoing. In each case, however, the Sheriff exercises his discretion, which is always based on practical considerations that take into account the resources available to the Sheriff at a given time as well as public safety. The judicial branch may not take as its own those discretionary powers vested in an executive officer. People v. Stinger, 22 Ill. App. 3d 371, 373 (2nd Dist. 1974).
A constitutional officer, such as the Sheriff, cannot be compelled to follow a void order. The Appellate Court addressed this very issue in People v. Stinger. In Stinger, the State’s Attorney was ordered by the presiding judge to provide a court reporter for grand jury proceedings in a pending murder case. The State’s Attorney refused and conducted the grand jury proceedings without a court reporter. The presiding judge held the State’s Attorney in contempt for refusing to obey his order to provide a court reporter for the proceedings. The State’s Attorney asserted that the presiding judge had no authority to order the State’s Attorney to provide a court reporter.
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On appeal, the presiding judge argued that, even if there was no express au-
thority for him to order the State’s Attorney to provide a court reporter, and it was
error to do so, the State’s Attorney did not have the right to disregard his order. The
appellate court disagreed, and vacated the contempt finding. The Court stated that:
One is justified in refusing to comply with a court order only if such order is utterly void, but it is no defense in a contempt proceeding to show that the order was merely erroneous…. [c]ontempt will not lie for violation of a void decree but voidness is established when the issuing court is found to have lacked jurisdiction to enter such an order. The test of jurisdiction is said to be whether the court has power to enter into the inquiry before it, and this is determined by (1) jurisdiction of the parties, (2) jurisdiction of the subject matter, and (3) power in the court to decide the particular matters presented. All such factors being present, the correctness of the court's determination has no bearing upon the initial question of jurisdiction. Stinger, 22 Ill. App. 3d at 374. The Stinger Court held that the circuit court certainly
had jurisdiction over the parties, and jurisdiction of the subject matter, but that in
the absence of any statutory authority, the circuit court did not have the power to
order the State’s Attorney to provide a court reporter, and so the court’s order failed
the third test of jurisdiction. The order was thus void, and the appellate court vacated
the finding of contempt. Id. at 375.
Similarly, circuit courts certainly had jurisdiction over the parties and the
subject matter in Appellants’ pending criminal cases, but they lacked the power to
order the Sheriff to place anyone in the Sheriff’s pretrial EHM program. Without that
power, the special-conditions-of-bond order is not merely erroneous: to the extent that
a court or any other individual seeks to enforce the order, it is void, and the Sheriff
cannot be compelled to follow it. Nor could a void order from a bond court judge ever
be deemed to vest Appellants with a right to anything.
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The Sheriff had no duty to follow the EHM orders of the bond courts, because those orders were void. Since Sheriff Dart was not bound to follow the circuit court EHM orders, Appellants’ state law claims under 55 ILL. COMP. STAT. 5/3-6019 and 55 ILL. COMP. STAT. 5/3-6020 fail. By extension, those orders were never capable of endowing Appellants with a right to placement in the Sheriff’s EHM program, because the courts never had the authority to compel such placement. Without a constitutional right implicated, there can be no §1983 claim. Appellants never had a constitutional right to be placed in Sheriff Dart’s EHM Program. Without that right, all of Appellants’ claims fail.
B. Sheriff Dart is Not Judicially Estopped from Stating that He is Not Bound by Virtue of a Bond Court Order to Enroll a Pretrial Defendant into Sheriff Dart’s Pretrial EHM Program.
Appellants argue that the Sheriff’s arguments above are barred by judicial estoppel, claiming that the Sheriff’s current arguments are opposite arguments advanced by the Sheriff in the cases of Zachary Robinson v. Leroy Martin Jr., 2016 CH 13587 (Cir. Ct. Cook County 2016) and Dawson v. Dart, No. 11 C 7300, 2018 WL 2267792 (N.D. Ill. May 16, 2018). Appellants’ Br. 24-25. In reality, the position of the Sheriff in this case is not in any way contrary to the position advanced by the Sheriff in either of those two cases, and is not in any way barred by judicial estoppel.
The Robinson case was a suit filed against the Chief Judge of the Criminal Division of the Circuit Court of Cook County, alleging in essence that bond court judges were setting high cash bonds, which unfairly discriminated against the poor and disproportionately affected people of minority groups. The Sheriff was also named, even though the Sheriff had no role in setting the cash bail amount. The
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Sheriff’s argument in the Robinson case—that the Sheriff cannot alter the cash bail amount in a bond order—is not a contrary position from the one taken in this case: that the Sheriff cannot be compelled by the Court to provide for the supervised release of Appellants via the Sheriff’s EHM program.
Appellants additionally argue that Sheriff Dart lacks the authority to review bond court orders. In order to support this argument, as they did in the exact same way in the district court, Appellants again in their brief misrepresent this Court’s opinion in Richman v. Sheahan, 270 F.3d 430, 437 (7th Cir. 2001) by claiming that this Court held “allowing sheriffs to ‘act as appellate courts,’ reviewing the validity of bond or other facially valid court orders is ‘untenable.’” Appellants’ Brief, p. 22. As Sheriff Dart noted in the district court when Appellants cited this same case for the same purported holding, Appellants replaced the word “requiring” with the word “allowing.” Richman held not that the Sheriff lacked authority to investigate the validity of the bond court orders. Rather, the case held that the Sheriff did not have the duty to investigate the validity of the bond court orders. Richman, 270 F.3d at 437. There is nothing illegal or improper in Sheriff Dart electing to investigate the validity of orders directed to him.
While the Sheriff has no authority in the Bail Act to alter the cash bail ordered by a court, he does have authority to decline the pretrial supervised release of a defendant. That authority is found in the Illinois Bail Act, at 725 ILL. COMP. STAT. 5/11010(b)(13).
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Nor is any argument of the Sheriff’s judicially estopped by the Dawson case. Dawson was shot by assailants while he was on the Sheriff’s EHM program. After being shot, Dawson was hospitalized. While hospitalized, Dawson was arrested by the Cook County Sheriff and taken into custody (presumably at Cermak, the hospital unit within Cook County Jail). Dawson alleged that the Sheriff violated his Fourth Amendment rights in wrongfully detaining him after he was shot. In dismissing Dawson’s claims, the Court found that a condition precedent to enrollment in the Sheriff’s EHM program was a home from which to be monitored, and by virtue of being hospitalized after he was shot, Dawson was without a home and therefore the Sheriff no longer agreed to Dawson’s continued placement in the Sheriff’s EHM program, and was therefore not entitled to EHM placement. Dawson, 2018 WL 2267792, at *9, footnote 3. As in Dawson, here too the Sheriff is not violating Appellants’ Fourth Amendment rights in refusing to release them. As in Dawson, Appellants may seek from the bond court an amendment to their conditions of bond, which many of Appellants have in fact done. In any case, there is nothing about the arguments made in Dawson which would judicially estop arguments made by the Sheriff in this case. Rather, the arguments made here, in Dawson, and in Robinson are entirely consistent. II. The District Court Did Not Err in Dismissing Appellants’ Fourteenth
Amendment Substantive Due Process Claim. Appellants have alleged that their continued detention following bond court by the Sheriff constituted, presumably, a violation of their right to bodily integrity, and therefore a violation of their substantive due process rights. The District Court was correct to dismiss this Count with prejudice.
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The U.S. Supreme Court has limited the reach of the substantive component of the due-process clause guarantee to cases involving abuse of governmental power so arbitrary and oppressive that it shocks the conscience. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). This standard is met only by “conduct intended to injure in some way unjustifiable by any government interest.” Id. at 854; see also, Catinella v. Cnty. of Cook, 881.F.3d 514 (7th Cir. 2018).
The Sheriff’s alleged conduct in this case was neither so arbitrary or oppressive that it shocks the conscience, nor was it intended to injure in some way unjustifiable by any government interest. To the contrary, the Sheriff’s continued detention of Appellants was predicated on and mandated by the bond court orders themselves, which conditioned each Appellant’s release upon payment of the required bail and placement in the Sheriff’s EHM program. As Appellants have stated repeatedly in their own pleadings, the Sheriff is bound to execute all valid orders, and can be held in contempt for failing to do so. The Sheriff would have been violating the court’s order had he released the Appellants without placing them in his EHM program. Failing their placement, the Sheriff was not only justified in detaining the Appellants; he was required to detain the Appellants.
This reasoning is supported by the plain language of the Bail Act and the definitions of “bail” and “bail bond” found in the Illinois Code of Criminal Procedure. “Bail” is defined in the Code as the amount of money set by the court which is required to be obligated and secured as provided by law for the release of a person in custody in order that he will appear before the court in which his appearance may be required
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and that he will comply with such conditions as set forth in the bail bond. 725 ILL. COMP. STAT. 5/102-6 “Bail” (2018). “Bail Bond” is defined as an undertaking secured by bail entered into by a person in custody by which he binds himself to comply with such conditions as are set forth therein. 725 ILL. COMP. STAT. 5/102-7 “Bail Bond” (2018).
The Illinois Bail Act establishes definitively that the Sheriff was not empowered to simply release the Appellants from his custody because the bond orders conditioned the Appellants’ release upon the Appellants’ placement in the Sheriff’s EHM program. “Upon depositing this sum and any bond fee authorized by law, the person shall be released from custody subject to the conditions of the bail bond.” 725 ILL. COMP. STAT. 5/110-7 “Deposit of Bail Security” (2018) (emphasis added.) Any pretrial defendant’s release on bond is predicated on their satisfying all conditions of that bond.
The Appellants argue that “subject to” is a “term” undefined by the Bail Act, and is a term which has alternative definitions that should have been considered by the District Court, and which would not have led to the District Court’s conclusion that the Appellants’ release was conditioned upon their placement in the EHM program. (Appellant’s Brief, p. 18) The Appellants, however, never raised this argument before the District Court. Failing to draw a district court’s attention to an applicable legal theory waives pursuit of that theory on appeal. United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016) (internal citations omitted).
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The Appellant’s statutory interpretation argument would be unpersuasive even if it were not waived, because when considered in its entirety, the Illinois Bail Act amply supports the interpretation of the phrase “subject to” adopted by the District Court. The “language and design of the statute as a whole may also provide guidance in determining the plain meaning of its provisions.” United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008) (internal citations omitted). The Illinois Bail Act, when considered in its entirety, indeed provides guidance in determining whether a pretrial defendant’s release was conditioned upon his or her satisfaction of bond conditions imposed by the Court. For example, 725 ILL. COMP. STAT. 5/110-5 is titled “Determining the amount of bail and conditions of release.” There is no statutory ambiguity which supports the Appellants’ statutory interpretation argument.
In fact, a court in this district has already found that the Sheriff was justified in detaining a pretrial defendant when the Sheriff refused to place that pretrial defendant in the Sheriff’s EHM program, and placement was a condition of that defendant’s bond. See Dawson v. Dart, 2018 U.S. Dist. LEXIS 82902, *3 (N.D. Ill. 2018) (Durkin, C.J.) (finding that the plaintiff failed to plead a Monell claim because the Sheriff was justified in taking into custody a pretrial defendant on EHM for a pending burglary, when that individual was subsequently hospitalized, and so longer qualified for the Sheriff’s EHM program.)
Moreover, in addition to following the court’s orders, the Sheriff’s additional justification in detaining the Appellants was his statutory duty to maintain public safety. “Each sheriff… shall prevent crime and maintain the safety and order of the
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citizens of that county.” 55 ILL. COMP. STAT. 5/3-6021 (2018). The Sheriff is not asserting, and has never asserted, that the Appellants were not appropriate candidates for some other form of monitoring, or monitoring on EHM provided by another entity, or for cash bail without any special conditions of bond. Rather, the Sheriff has steadfastly maintained that the Appellants were not appropriate candidates for his EHM program.
It is the Sheriff’s statutory duty to refrain from placing on EHM more pretrial detainees with a recidivist background and/or pending charges alleging violence or gun crimes than he can responsibly monitor while still maintaining the public safety. This is a determination involving the day-to-day operation of Cook County jail, and is within the province and professional experience of the Sheriff. As the Supreme Court has noted, courts should ordinarily defer to corrections officials in such matters. Bell v. Wolfish, 441 U.S. 520, 548 (1979). The Sheriff’s determination with respect to the Appellants is entitled to such deference here.
The Cook County Sheriff’s pretrial EHM program was never intended to monitor individuals like Appellants out in the community while awaiting trial. Instead, the program was and remains intended to reduce the daily jail population by releasing into the community nonviolent individuals charged with nonviolent, lower-level crimes. The Sheriff does not have, as a routine matter, the resources to electronically monitor Appellants – and others similarly situated to them – out in the community. Nor does the Sheriff have access to infinite funds to provide such monitoring to an ever-increasing number of pretrial defendants.
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It is precisely because the Sheriff does not have the resources to, on a routine basis, adequately electronically monitor defendants with criminal backgrounds or violent charges similar to the named Appellants in this case that Sheriff Dart did not place Appellants into his EHM program in the first place. It is the Sheriff’s EHM program, after all. He is statutorily charged with imposing the rules and regulations for the administration of the jail, and is responsible for maintaining the public’s safety. It is no revelation to judges, prosecutors, defense attorneys, and defendants that certain defendants do not qualify for Sheriff Dart’s EHM program.
In fact, there is an entire group of defendants not placed in the program for a totally separate reason than the reason Appellants were refused placement. Administration of the EHM program requires that the person to be monitored have a home, and a phone and wi-fi service within that home. Every day there are over 100 people housed in the Cook County Jail who are charged with nonviolent crimes such as drug possession and retail theft with low bonds or I-Bonds, and with the special condition of bond being admitted into Sheriff Dart’s EHM program. Unfortunately, in spite of the Court’s bail order containing EHM as a condition of bond, Sheriff Dart cannot move these individuals into the EHM program because they are homeless, and thus cannot be electronically monitored.
It is ironic that Sheriff Dart is being portrayed by the Appellants as someone bent on keeping individuals in physical custody rather than being released on EHM. As explained in his letter to the County Board and attached to the Appellants’ Complaint, Sheriff Dart has long advocated for these nonviolent individuals to have their
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bonds reviewed by the individual judges who set the bail in the hopes that the individual judges would reduce the bonds to I-Bonds without the condition of EHM, and has long stated publicly that the public interest is not served by detention of these nonviolent individuals within the walls of the county jail. No one would suggest, or has suggested, that Sheriff Dart was disregarding a Court’s bail order by not enrolling a homeless defendant in the EHM program. Everyone understands that regrettably, the Sheriff’s Office cannot adequately monitor these individuals through EHM because of their homelessness and/or lack of wi-fi access. A home and wi-fi access are prerequisites to one’s admission into the Sheriff’s EHM program. These prerequisites of a home and wi-fi access is a condition imposed not by statute or by any court, but rather by the Sheriff in his review of the practical realities of his obligation to monitor those individuals to be placed on EHM.
The list of these nonviolent individuals who would be released on EHM but for their homelessness is provided every day to the Office of the Public Defender and any private defense attorneys representing these often-indigent defendants. On information and belief, Appellants here are not claiming to be “similarly situated” to these nonviolent individuals. Rather, Appellants and those “similarly situated” to Appellants fail to satisfy a different prerequisite for admission into the Sheriff’s EHM program.
The Appellants here were refused placement in Sheriff Dart’s EHM program for different reasons: their violent recidivist background and/or pending charges of violence. Specifically, public records establish that each of the Appellants is charged
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with a violent offense, has an extensive violent criminal history, and/or poses a threat to the community. Taphia Williams is charged with aggravated kidnapping (a Class X felony). Gregory Cooper was out on bond for armed robbery with a firearm (a class X felony punishable by 21-45 years in prison) when he was arrested on a new charge of delivery of Heroin within 1,000 feet of a school (a class 1 felony). Marcus Johnson is charged with being a gang member in possession of a firearm (a class 2 felony), and at the time of his arrest was wanted for questioning in a murder. Joshua Atwater is charged with aggravated kidnapping (a class X felony) and aggravated criminal sexual assault (a class 2 felony). Tony Mason is charged with one count of armed habitual criminal and one count of delivery of between 100 and 400 grams of cocaine (both Class X felonies), after he was arrested and found in possession of over $1,100 in cash, multiple bags of crack cocaine, and a 9mm handgun outfitted with an extended clip containing 29 live rounds and another in the chamber.
In each case, there were constitutionally-permissible considerations for Sheriff Dart in determining whether or not a given pretrial defendant will be placed in his EHM program. Appellants failed to gain placement because of those considerations. Where the Sheriff cannot release to EHM a nonviolent homeless defendant because the defendant does not have a home to monitored within, the Sheriff cannot routinely place defendants like Appellants in his EHM because Appellants’ violent criminal background and/or pending charges of violence indicate that Appellants pose a safety risk to the community, and an increased administrative and budgetary burdens to monitor.
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In light of the Bail Act specifically, the Code of Criminal Procedure generally, and the Sheriff’s duty to maintain public safety, the Sheriff’s detention of the Appellants was justified, and certainly reasonable, but in any event fails to shock the conscience. After all, for purposes of due process, governmental action does not have to be the only alternative, or even the best alternative for it to be reasonable and constitutional. Bell, 441 U.S. at 542 (quoting in a footnote Vance v. Bradley, 440 U.S. 93 (1979). For all of these reasons, the Appellants’ substantive due process claim fails as a matter of law, and the District Court’s dismissal of the claim with prejudice should be affirmed. III. The District Court Did Not Err in Dismissing the Appellants’ Racial
Discrimination Claims Under the Fourteenth Amendment and the Illinois Civil Rights Act. The district court dismissed the Appellants’ equal protection claims because the Appellants failed to sufficiently allege discriminatory impact upon a protected class and a discriminatory purpose on the part of Sheriff Dart. Instead, the Appellants’ allegations purporting to support their equal protection claims were almost entirely conclusory. For instance, Appellants alleged that “upon information and belief, numerous individuals of other races and identities who were similarly situated to the [Appellants], who posted bond or otherwise satisfied their conditions of release, were not detained pursuant to Dart’s policy and were allowed to be placed on electronic home
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monitoring.” App. 19, Third Am. Compl., ¶44., p. A126.1 The district court was not required to accept such conclusory allegations as true for the purposes of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
The tenet that a court must accept as true all of the allegations in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Although for the purposes of a motion to dismiss courts must take all of the factual allegations in the complaint as true, they are not bound to accept as true a legal conclusion couched as a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The conclusory nature of Appellants’ pleadings are self-evident. For example, in the aforementioned ¶44, Appellants did not disclose the nature or severity of their own pending charges or criminal backgrounds, let alone allege that individuals of an unprotected class with those similar specific charges or criminal backgrounds were treated more favorably. Of the remaining allegations cited by the Appellants in their response brief to the district court, ¶41 and ¶46 were conclusory and/or legal conclusions, and ¶47 addressed—for unexplained reasons—a 2017 Department of Justice report which concluded that African Americans have been disproportionately targeted for decades by the Chicago Police Department. App. 19, Third Am. Compl., p. A126. The Appellants never explained to the district court what the Chicago Police Department has to do with the Sheriff’s EHM program, or how a discriminatory purpose on the part of the Chicago Police Department would constitute proof or even a
1 Throughout this brief, “App.” refers to the appendix filed with Williams’ opening brief, see docket entry 19.
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relevant allegation as to a discriminatory purpose on the part of Sheriff Dart or discriminatory impact upon the Appellants.
Appellants assert that they adequately pleaded these claims because they have alleged invidious discrimination in their Complaint, which states:
Sheriff Dart’s statement that people from the South and West sides of Chicago—primarily African Americans—are to be the most closely scrutinized shows that Dart’s policy of refusing to release certain detainees is motivated by racial bias and racist assumptions about the likelihood that people from primarily African American neighborhoods pose a public safety risk or are likely to reoffend. App. 19, Third Am. Compl., ¶40, p. A126. Appellants assert that these allegations, along with the allegations in paragraphs 38 through 40 characterizing quotes of the Sheriff and his Chief Policy Advisor found in newspaper articles attached to the complaint as exhibits, are entitled to be presumed as true for the purposes of a 12(b)(6) motion. These allegations, however, are conclusory in nature, and as such are not entitled to be assumed as true. Iqbal, 556 U.S. at 681. Moreover, the newspaper articles themselves were exhibits to the Complaint. A copy of any written instrument which is an exhibit to a pleading is a part of thereof for all purposes. Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1992). Those exhibits speak for themselves, and are by any plain reading race-neutral. In any case, however, Appellants’ characterization of those articles or the quotes contained therein— even though couched as allegations in the complaint—are, by definition, conclusory. Setting aside the conclusory allegations of a complaint, a Court must consider the factual allegations in a complaint to determine if they plausibly suggest an entitlement to relief. Iqbal, 556 U.S. at 681. The factual allegations making up
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Appellants’ equal protection claims—to the extent they even exist—fail to plausibly
suggest an entitlement to relief. The facts of the Iqbal case are instructive in analyz-
ing the plausibility of Appellants’ equal protection claims.
The Iqbal complaint alleged that the FBI under the direction of the FBI Direc-
tor arrested and detained thousands of Arab Muslim men as part of its investigation
of the events of September 11, and further claimed that the policy of holding post-
September-11th detainees in highly restrictive conditions of confinement until they
were cleared by the FBI was approved by Attorney General Ashroft and Mueller in
discussions in the weeks after September 11, 2001. Iqbal, 556 U.S. at 682.
In analyzing the complaint’s allegations, the Court held:
Taken as true, these allegations are consistent with petitioners’ purposefully designating detainees “of high interest” because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose. The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of Al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim – Osama bin Laden – and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected links to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between the obvious alternative explanation for the arrests, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.”
Id. at 682 (emphasis added). Similar to the Iqbal case, Appellants here allege that
their race was Sheriff Dart’s motivating factor in deciding to refuse them enrollment
in his EHM program. In support of this theory, Appellants alleged that “recent
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publicly available documents from the Sheriff’s office” show that as many as 85 individuals were detained pursuant to Dart’s policy, and that at least 80% are African American, where African Americans make up only 30% of Chicago’s population. App. 19, Third Am. Compl., ¶41-43, p. A126. However, as the district court noted, the racial makeup of the City of Chicago is irrelevant to the issues in this suit. Rather, the relevant population for comparison is that of the Cook County Jail. App. 19, Mem. Op. and Order, Nov. 4, 2019, p. A237.
Moreover, as in Iqbal, these allegations, taken as true, may be consistent with the Sheriff intentionally discriminating against Appellants because of their race, but given more likely explanations, they do not establish this purpose. In fact, other publicly records from the Sheriff establish that Appellants’ race was not the cause of their being denied enrollment in the Sheriff’s EHM program.
Specifically, the daily demographic composition of the Cook County Jail dating back to October of 2017 is available online at https://www.cookcountysheriff.org/data/. Those daily data sheets establish conclusively that the Sheriff does not discriminate against African Americans in determining who he enrolls in his pretrial EHM program. In fact, the daily data shows that African Americans have since at least October of 2017 consistently comprised approximately 70% of the Cook County Jail population, and have likewise consistently comprised approximately 70% of the Sheriff’s EHM program population.
The Court may take judicial notice of matters of public record. Anderson v. Simon, 217 F.3d 472, 474 (7th Cir. 2000). These public records establish conclusively
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that the vast majority of individuals enrolled in the Sheriff’s EHM program are African American, and in fact that the proportion of African Americans enrolled in the Sheriff’s EHM program roughly matches the proportion of African Americans in the Sheriff’s custody. These public records prove false any allegation or insinuation that the Sheriff discriminates against African Americans in determining who he enrolls in his EHM program, and makes exceedingly implausible Appellants’ claims that the Sheriff has excluded Appellants from enrollment in his EHM program because of their race.
Rather, the obvious alternative explanation for the Sheriff’s refusal to enroll Appellants in his EHM program, explained in the emails and newspaper articles affixed as exhibits to Appellants’ complaint, consisted of the following race-neutral facts, none of which was disputed by Appellants in their Response brief filed in the district court: (1) the Sheriff’s EHM program was never intended for the pretrial supervision of individuals with violent recidivist backgrounds and/or pending charges of violence; (2) the Sheriff does not have infinite resources to administer any of his programs, including his pretrial EHM program, and individuals facing charges of violence, with violent recidivist backgrounds, and/or who pose a flight risk, require additional resources to monitor on EHM; and (3) Appellants are all facing charges of violence and/or have violent recidivist background.
Appellants’ federal and state equal protection claims are simply implausible. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a claim states a plausible claim for relief will… be a
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context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679.
Like in Iqbal, as between the “obvious alternative explanation” for the Sheriff’s refusal to enroll Appellants in the Sheriff’s electronic home monitoring program, and the purposeful, invidious discrimination Appellants ask the Court to infer, discrimination was not a plausible conclusion. In light of the publicly available demographic data of the jail population, and the conclusory nature of Appellants’ allegations, the district court was correct to dismiss these claims.
The Appellants cannot support their equal protection claims against Sheriff Dart merely by labeling him a racist. Their claims must be plausible. The Appellants’ equal protection and civil rights claims, based entirely on irrelevant statistics and two misleading, out-of-context quotes from his policy director Ms. Smith—quotes that are entirely race-neutral—fail that test, and the district court was correct to dismiss those claims.
The Appellants now argue—for the first time—that “…it was obvious that Dart’s consideration of arrest history would inevitably target African Americans for extended detention.” Appellants’ Br., p. 35. Appellants waived that argument, because they never asserted it before the district court. United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016) (internal citations omitted). It is an unpersuasive and implausible argument even if it had not been waived, however,
26

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 35 of 44 PageID #:238
considering the aforementioned publicly available statistical information maintained by the Sheriff as well as words of Sheriff Dart and his chief policy officer at the time Cara Smith in the articles repeatedly referenced by the Appellants.
Appellants failed to adequately plead an equal protection claim under either federal or state law, and the district court was correct to dismiss those claims. Appellants were not “targeted” because they are African American. Rather, Sheriff Dart’s decision to refuse placement to Appellants was based upon their criminal background and/or the nature of their pending charge. IV. The District Court Did Not Err in Dismissing the Appellants’ Fourth
Amendment Claim. Appellants’ Fourth Amendment claim is for alleged unlawful detention by Sheriff Dart, alleging that Sheriff Dart “…knowing that he had no legal justification, caused Appellants to be detained, violating Appellants’ right to be free from unreasonable seizures guaranteed to them by the Fourth and Fourteenth Amendments of the United States Constitution.” App. 19, Second. Am. Compl. at ¶111, p. A014. In reality, however, the detention of Appellants by Sheriff Dart followed a finding of probable cause to detain each Appellant made by a Circuit Court Judge. The Fourth Amendment establishes the standards and procedures governing pretrial detention. Manuel v. City of Joliet, 137 S. Ct. 911, 914 (2017). “The Fourth Amendment protects the right of the people to be secure in their persons against unreasonable seizures. A person is seized whenever officials restrain his freedom of movement such that he is not free to leave. The general rule is that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause to believe that the
27

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 36 of 44 PageID #:239
individual has committed a crime.” Id. at 917. The Fourth Amendment prohibits government officials from detaining a person unless a judge or grand jury makes a reliable finding of probable cause that the accused had committed the crime charges. Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
Here, Appellants make no allegation in the district court that they were being held without the probable cause hearing required in Gerstein. In fact, each Appellant appeared before a Cook County Circuit Court Judge on each Appellant’s felony case. On each case, a Circuit Court judge made a finding of probable cause to detain each Appellant. Nor did Appellants contest in the district court the factual bases of those findings.
The district court correctly ruled that, in failing to allege either (1) that Sheriff Dart detained Appellants in the absence of a finding of probable cause to believe each Appellant committed a crime, or (2) that Sheriff Dart detained Appellants after a finding of probable cause that was premised on unreliable or false information, the Appellants failed to state a Fourth Amendment cause of action. The Appellants now argue—for the first time—that in refusing to admit Appellants into his EHM program, Sheriff Dart “re-seized” Appellants. Appellants’ Br., p. 39. This legal theory was never advanced by the Appellants in the district court, however, and is thus waived. United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016) (internal citations omitted). Even if it were not waived, the argument is unpersuasive, because it again presumes that Appellants satisfied all conditions of bond to secure
28

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 37 of 44 PageID #:240
their release. They did not. The Appellants failed to secure enrollment in Sheriff Dart’s EHM program, which was a condition of their release. V. The District Court Did Not Err in Denying the Appellants’ Motion to
Certify an Injunctive Class. The district court did not abuse its discretion in denying Appellants’ motion for class certification on the basis of typicality, though it would have been correct to deny the Appellants’ motion for class certification on the basis of either commonality or numerosity, as well, or in requiring the Appellants’ counsel to also more fully explain their expertise and adequacy in serving as class counsel. In the district court, Appellants proposed that the following class be certified: “All individuals who have been detained, are currently being detained, or in the future will be detained at the Cook County Jail, even though their bond has been posted, in violation of a facially valid court order, pursuant to Dart’s policy of conducting his own review of bond decisions made by Cook County Judges.” App 19, Third Am. Compl., ¶121, p. A133. A. Appellants’ Purported Class Fails to Satisfy the Numerosity Re-
quirement. Appellants assert in their motion for class certification that their proposed class “easily meets” the 40-person standard. R. 2, Pls’ Mot. for Class Certification, p. 3.2 In their Third Amended Complaint, Appellants claim that their proposed class numbers in excess of 80 people. App. 19, Third Am. Compl., ¶¶124-125, p. A134. In addition to the named plaintiffs, Appellants claim that over 70 individuals are
2 Throughout this brief, “R.” refers to district court docket entries.
29

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 38 of 44 PageID #:241
similarly situated to them and would be appropriate class members. App. 19, Third Am. Compl., ¶125, p. A134 (referring to a list of individuals on administrative review by the Sheriff, dated March 6, 2018, and attached to Appellants’ Complaint as Exhibit G).
As Sheriff Dart argued before the district court, the vast majority of the orders for the individuals Appellants have referenced direct no particular agency to accept the individual into an EHM program. Of the entire list in Exhibit G of Appellants’ Third Amended Complaint (which presumably includes even individuals who Appellants do not seek to add as class members), the undersigned counsel located only nine with bond court orders specifically placing or referring Appellants to the Sheriff’s EHM program. App. 19, Third Am. Compl., Ex G., p. A217. Of the individuals named in Appellants’ Third Amended Complaint at ¶125, only Terrance Strickland was so ordered. Of the nine named plaintiffs, the bond court orders of only three—Taphia Williams, Joshua Atwater, and Tony Mason—state that the Sheriff was to place them in the Sheriff’s EHM program.
Apart from these 12 orders (the three named plaintiffs and the nine additional individuals from Exhibit G), the remaining orders do not identify whether the Court intended that pretrial services, the probation department, or the Sheriff administer electronic monitoring. These remaining orders do not specify which agency is supposed to administer electronic monitoring at all. Instead, they merely state “EM”, “EM SCOB”, or “electronic home monitoring as a special condition of bond.”
30

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 39 of 44 PageID #:242
Though true in the past the Sheriff has placed individuals with nonspecific EM orders into his EM program, the distinction between certain of the named Appellants’ bond court orders and other named Appellants’ bond court orders is not immaterial. Rather, Appellants’ proposed class certification motion hinges on their allegation that the Sheriff violated a “facially valid bond order” directing him to place Appellants in his EHM program, and instead detained Appellants. This assertion presumes that each Appellant’s state court order directed the Sheriff to place each Appellant in the Sheriff’s EHM program.
When limited to the Appellants or potential class members with court orders purporting to place them specifically in the Sheriff’s EHM program, Appellants’ proposed class falls well short of satisfying the numerosity requirement. In fact, that group of individuals appears to number fewer than 15. Nor is the number of potential class members growing, as Appellants were all eventually—within 14 days, according to Appellants’ Third Amended Complaint—placed on the Sheriff’s EHM program, and the “unlawful policy” Appellants complain of—the Sheriff’s administrative review of the criminal background of and charges pending against individuals ordered onto his EHM program—was ended by the middle of March, 2018, within two weeks of it having been started.
Given the small, discreet number of any similarly situated plaintiffs, joinder would not be impractical, and in fact would be a more efficient method of administering this case. As a result, Appellants fail to satisfy the numerosity prerequisite of Rule 23.
31

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 40 of 44 PageID #:243
B. Appellants’ Purported Class Fails to Satisfy the Commonality and Typicality Requirements.
Appellants’ proposed class also fails to satisfy the commonality and typicality requirements of Rule 23. The district court found that while a state courts likely do not have the power to place the named Appellants in the Sheriff’s EHM program, “it is still questionable whether the [Appellants’] prolonged detentions were lawful or whether their bond orders required their release.” App. 19, Mem. Op., Sept. 13, 2018, p. A111. This Court went on to cite Harper v. Sheriff of Cook Cnty., 581 F.3d 511 (7th Cir. 2009), which held that the constitutionality of an individual’s detention depends on whether the length of the delay between the time the Sheriff was notified that bond had been posed and the time that the detainee was released was reasonable in any given case. Harper, 581 F.3d at 515. The Harper court held that this determination was an individual issue, and that liability would need to be determined on an individual basis. Id.
The constitutionality of each Appellant’s detention is likewise an individual issue that should be determined on an individual basis. The administrative review conducted by the Sheriff sought to review the criminal backgrounds and pending charges against each individual referred to the Sheriff’s EHM program to determine whether each individual was suitable for such placement. App. 19, Third Am. Compl., Ex. C “Letter from Sheriff Dart to Cnty. Bd. Pres., Toni Preckwinkle” at p. 2.
The administrative review procedure was occasioned by bail reform which took effect in Cook County in September 2017, and which dramatically increased the number of pretrial defendants placed on the Sheriff’s EHM program from bond court. Id.,
32

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 41 of 44 PageID #:244
p. 1. The Sheriff’s policy was intended to mitigate any increased risks to public safety, and accounted for the resources available to the Sheriff to monitor these additional individuals at any given time. Id., pp. 3-4.
Though the policy guiding the Sheriff was the same in the case of each named Appellant, the basis for the continued detention of each individual was determined on a case by case basis, and included a review of each individual’s pending charges and criminal background. Though all of the named Appellants were initially denied placement in the Sheriff’s EHM program, each of the Appellants have distinct pending charges and criminal backgrounds which made each individual uniquely unsuitable for immediate placement in the Sheriff’s EHM program at the time their placement was requested.
Public records establish that each of the Appellants are charged with different violent offenses, have extensive but distinct violent criminal history, and/or poses a different level of threat to the community. For example, Taphia Williams is charged with aggravated kidnapping (a Class X felony). Gregory Cooper was out on bond for armed robbery with a firearm (a class X felony punishable by 21-45 years in prison) when he was arrested on a new charge of delivery of Heroin within 1,000 feet of a school (a class 1 felony). Marcus Johnson is charged with being a gang member in possession of a firearm (a class 2 felony), and at the time of his arrest was wanted for questioning in a murder. Joshua Atwater is charged with aggravated kidnapping (a class X felony) and aggravated criminal sexual assault (a class 2 felony). Tony Mason is charged with one count of armed habitual criminal and one count of delivery of
33

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 42 of 44 PageID #:245
between 100 and 400 grams of cocaine (both Class X felonies), after he was arrested and found in possession of over $1,100 in cash, multiple bags of crack cocaine, and a 9mm handgun outfitted with an extended clip containing 29 live rounds and another in the chamber. And so on.
In each individual case, the Sheriff’s determination as to whether to immediately place the Appellants on his EHM program was based on the nature of the pending charges against each Appellant, each Appellant’s unique criminal background, and the resources available to the Sheriff at the time the Appellants’ placement was requested. Appellants failed to gain immediate placement because of those considerations. Although each was ultimately released, the reasonableness of the Sheriff’s refusal to immediately place each Appellant in his EHM program depends on an individualized, case-by-case analysis. Apart from the fact that each of the Appellants was refused immediate placement in the Sheriff’s EHM program, and in light of their unique criminal backgrounds, distinct pending charges, and different resources available for their monitoring depending on the day, there is no commonality among the named Appellants, and no typicality between the named Appellants and the alleged class members.
C. Appellants’ Counsel Has Not Demonstrated They Possess the Requisite Experience Pursuant to Fed. R. Civ. P. 23(g)(1)(A)(ii).
No class should be certified in the first place, because Appellants have failed to satisfy all of the elements of Rule 23. Even if the Court found that Appellants did satisfy the requirements of Rule 23, Appellants’ counsel have not demonstrated that they should be designated class counsel. Though Appellants’ counsel in their Motion
34

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 43 of 44 PageID #:246
for Class Certification cite to a Monell case they prosecuted, it is not apparent from the Motion that either named counsel has any experience prosecuting a class action case. The Sheriff requests that Appellants’ counsel describe all of their relevant experience, and that the Court then make a determination as to the whether or not Appellants’ counsel should be designated class counsel.
CONCLUSION For the foregoing reasons, Defendants request that this Court affirm the district court’s decisions granting Defendant’s motion to dismiss and denying class certification, and remand the case to the district court.
Respectfully submitted, /s/ Richard Gleason Counsel for the Defendants-Appellees Richard Gleason O’Mara Gleason O’Callaghan, LLC 230 W. Monroe St., Ste 2620 Chicago, Illinois 60606 Richard.Gleason@ogolawyers.com 312 600-5588
35

Case: 1:20-cv-02134 Document #: 26-2 Filed: 04/06/20 Page 44 of 44 PageID #:247
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7), F.R.A.P. 32(g) and C.R. 32(c) I certify that the forgoing Defendant’s-Appellee’s Brief conforms to the rules contained in F.R.A.P. 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 10426 words.
/s/ Richard Gleason Counsel for Defendant-Appellee CERTIFICATE OF SERVICE I certify that on December 13, 2019, I electronically filed the Brief with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Richard Gleason Counsel for Defendant-Appellee CIRCUIT RULE 30(d) STATEMENT Pursuant to Circuit Rule 30(d), counsel certifies that all material required by Circuit Rule 30(a) and (b) are included in the appendix. /s/ Richard Gleason Counsel for Defendant-Appellee
36

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 1 of 17 PageID #:248
EXHIBIT B

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 2 of 17 PageID #:249

EASTERN DISTRtCT of KENTUCKY
FILE D

•

UNITED STATES DISTRICT CO'ORT
EASTERN DISTRICT OF KENTUCKY
AT COV:CNGTON

AT COVINGTON lESLtE G. WHITMER ~ LERK, U. S. DISTRICT COURT.

CinL ACTION NO. 91-187

JOHN DOB, ET AL
vs.

OPnp:ON AND ORDER

DON YOUNGER, 'B'r AL

PLAINTIFFS DEFENDANTS

This matter is before the court on defendant Kenton Count y's motion to alter, amend and vacate this court's July 26 , 1996 judgment and to stay the execution of that judgment (doc. #450), the motion of defendants Paul Patton and Doug Sapp to alter or amend the court's July 26, 1996 judgment (doc. #459) , and the stipulated motion for an extension of time to file a petition for attoxneys' fees (doc. #459). A telephonic hearing was held on
these motions on August 29, 1996. For the reasons set forth below, Kenton County's motion to alter or amend is granted as to which juveniles are exempt from the 15 day limitation on length of stay, but the remainder of Kenton County's motion is denied. The motion of defendants Governor Paul Patton and Doug Sapp is denied in its entirety, and the stipulated motion for an extension of time t o file a petition for attorneys' fees is granted.
Plaintiffs initiated this' civil rights .class action purs uant to 42 u.s.c. §1983. They challenge the constitutionality of the conditions of their confinement at the Kenton County Detention
After considering all center (KCDC) in Covington, Kentucky.
1
•

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 3 of 17 PageID #:250

•• •

•
•
evide nce presented during a t hree day tri a l to the bench and
con sidering all a rgume nts made in post- t rial briefs filed by the
partie s , the c our t e ntered its findings of fact and conclusions of
law as well as a n amend ed judgment on J uly 26 , 1996. The parties
seek alteration of portions of t hese documents.

THE FINDINGS OF FACT AND CONCLUSIONS OP LAW WILL BE AMENDED CONCERNING THE EXEMPTION FROM TH8 1 5 DAY LIMITATION ON LENGTH OP STAY
This case requi• r es t he court t o balance s i gni ficant
conflicting interests -- the due process rights of incar cerated juveniles, the public's righ t to have juvenile cri•me and misbehavior addressed, and the separati on of feder al and state powers. As explained in the court's findings of fac t and conclusions of law, the Kenton County Detention Center is clearly
substandard in many respects. However, in the view of t he court the conditions at the KCDC become unconstitutional and thus justify court intervention only when a juvenile is subjected to those substandard conditions for an extended period of time. To that end, the court imposed a time limit on the length of incarceration in thi s facility for juveniles who do not have the benefit of adult

procedural protections, stating:

Plaintiffs ask the court to clo~e this

institution. After careful reflection, the

court has concluded , that such an ~xt~em~ ~ct

ld violate the princ iples of Judicial

~!so wo~traint and federalism. But the court has concluded that confining a juvenile .there

f(olSr)

adnayesx,teunndleedsspetrhieo~de

-i. s

more than fifteen prob a ble c ause to

b 1·eve that the juvenile can be treate? as an

e 1 adult

c h arged

with

without due process

a crime - of the 1aw.

i sWhpaut noi snhemec na nt

2

• •

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 4 of 17 PageID #:251

•
•

bpreoalronfgoerda. short period can be intolerable if

Doc. #44 7 at 2. The court's amended judgment provide s, ''That ,
effective August 15, 1996 , no J· uven·i1e not indicte d f o r or
convicted of a crime as an adult shall be held in the present

Kenton County Detention Center for more than fifteen (15) days. ''
Doc. #449 at 1.

In its motion to alter or amend the judgment, Kenton County
states, for the first time, that, given the procedures prescribed
by the Kentucky Revised Code concerr1ing youthful offenders, it is
impossible to judicially determine whether a juvenile will be treated as an adult charged with a crime within fifteen days of the juvenile's initial incarceration at the KCDC. For this reason, Kenton County asks the court to revi• se i t s language concerning
which juveniles are exempt from the fifteen day limit on length of
incarceration at the KCDC. In making its motion, Kenton County repeatedly sarcastically
states that the court was ''simply wrong'' in concluding that
juveniles who have not been charged with a crime and who have not
been afforded the rights of those who are so charged are being held for lengthy periods in the KCDC. This statement is itself not only "simply wrong" but demonstrates a profound ignorance of_ the law of this case . 1
It is fundamental that proceedings against juveniles, even

1 The court suggests that if one is going to be disrespectful, one ought to at least do his homework.
3
•

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 5 of 17 PageID #:252

•
•
•

juveniles who have allegedly been in contempt

criminal proceedings.

of court, are not
See• ~ •9 •·• Jn re Gpult, 387 U. s. 1 (1 967) ;

Kent v. United States 383 us

--------..:::::=-=~~~~-=-5:;,2_,

• • 541 (1966); Young v. I<night, 329

S.W.2d 195

(Ky· 1959) ; Alexanc;ler S ._ v. Boyd, 876 F. Supp. 773

(D.s.c. 1995). As the Supreme Court explained:

The theory of the District's Juvenile Court

Act, like that of other jurisdictions, is

rooted in social welfare philosophy rather

than in the corpus juris. _Its proceedings are

des igr1ated as s;ivil
Juvenile Court is

ratbe.r than theoretical

cr ly

imening9a1ge. d

The in

deterrnining the needs of the child and of

society rather than adjudicating criminal

conduct,.

The objectives are to provide

measures of guidance and rehabilitation for

the child and protection for society, not to

fix criminal responsibility, guilt and punishment.

Kent, 383 U. s. at 544 (emphasis added) . More recently, the
Kentucky Supreme Court has echoed those views, stating:

It has been a principle theory of juv~nile_law

that an individual should not be stigma~ized

with a criminal record f?r. acts committed

during minorit · th treatment

y. or

By pr iented f

oacv17dl17nt1~e

young s rath

people er than

=~mple punishment, antisoci~l behavior can be

modified and the offenders w.111 develop as law

biding citizens. However, s~ch treatment

a

limit the constitutional r1ghts that are

~~=~itionally provided fo~ :2~;:ae'aff:fte~~~

Juven~le ?ffefd:~s h~~e t~~t adult offenders

cons~itutiona aregafforded only the ~ight.to

receive. They

The Kentucky Juveni~e

fjuaisrt_ictereastyms teemnt.refl~cts this philosophy.

I
Jefferson County De-partment for Human Services v. Carter, 795

S.W.2d 59, 61 (Ky. 1990) (footnote and citations omitted) (emphasis

added).
Even so basic a work as American Jurisprudence 2d, a primer of

4

•
•
American law, in the very first section of its article on Juvenile Courts notes the following basic principles:

.

The pu~ose of juvenile court legislation

is to provide for the disposition of de lin-

qu7nt, dependent, neglected, and abandoned

children by providing a complete scheme for

~reat~ent thereof including the creation of a

Juvenile court which will investigate and try

to rehabilitate minors .

. With resp~ct to the delinquent child, the
philosophy of Juvenile court laws is that the
juvenile is to be con§idered and treated not
as a c~iminal, but as a person requiring care, education, and protection. A fundamental aim
of juvenile court laws is the prevention of
delinquency of children. Consequently, such
laws are not punitive, but are corrective and
protective in that their purpose is to make good citizens of potentially bad ones. In other words, the welfare of the child li•es at the very foundation of the statutory scheme.

47 Am. Jur. 2d Juvenile Courts .and Delinqyent and Dependent

Children§ 1 (1995) (emphasis added}.

As the above authorities and many others make abundantly

clear, it is a trade-off. Juveniles may be deprived of some

constitutional rights, such as the right to a jury trial and a

speedy and public trial, because they are not being punished but

treated. Therefore, all juveniles, except those being proceeded against as adults, have not even been accused of crimes. Again,

this is basic that one doubts if contrary assertions_are made in 60

good faith. 2

I

•

2 C rt int denial of these basics would not be "warranted by exi~~ law or by:

. e a y'

t &or the extension modification or reversal of existing law or e

nonfrivolous argumen 1•
establishment of new law."

Fed.

R.

• '
C1v.

P.

1

(
l(b}

2)

.

5

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 7 of 17 PageID #:254

' •

The gravamen of this court's opinion is that detention at the

KCDC for more than fifteen (15) days is punishment. Therefore, no

juvenile may be so punished except those being proceeded against as adults.

•

Thus, in determining whether juveniles could constitutionally

be housed in the substandard KCDC facility, the court protected

those children who are not afforded the additional procedural

rights available to adults. In keeping with the notion that federal courts have the authority only to requi• re the

constitutional minimum--not to impose their views of an ideal

facility, the court elected to limit the length that any juvenile

not ultimately protected by adult procedural rules may be

incarcerated in the KCDC. In Kentucky, a juvenile is protected by adult procedural
requirements Only 1. f he is proceeded against as a "youthful offender.,, A ''youthful offender'' is a person who is transferred to

Circuit Court to be indicted, tried and sentenced as an adult

pursuant to KRS Chapter 640 and who is subsequently convicted in
KRS 600.020(52). To be eligible for treatment as Circuit Court.
a juvenile must be accused of committing a youthful offender,

.

3

certain serious crimes.

~s youthful offenders under KRS 3Those eligible to proceed
Chapter 640 include~ ·th a capital offense, Class A fe~onr .o! of (a) a child charge wit least fourteen years old at t e im Class B felony w~o ~as ~f the offense (KRS 635.020(2));h was at

least sixteen years o eviously had been found to have co
the offense and who pr
6

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 8 of 17 PageID #:255

• •
The procedures by which i t is determined that
a child will be proc eeded against as a youthf ul of f ender are
contained in the
Kentucky Unified Juvenile Code.
To i n itiate these procedures, the county attorney must make a mot ion before the District Court to
transfer the child to Circuit Cou rt for treatment as a youthful offender.
KRS 635.020 and KRS 64 0. 010(2} . 4 The District Court then conducts a transfer hearing pursuant to KRS 640. 010. At that
hearing, the District Court determines whether there is probable cause to believe that the child committed an offense and whether
all age or other requirements for tre atment as a youthful offender have been satisfied. KRS 640.010 (2 ) (a) . The Di s t rict Court then
considers a number of other factors conce rning t he circumstances surrounding the offense, the child, and t he public and de termines whether the child should be tran s ferred to Ci rcui t Court for treatment as a youthful Offender • KRS 640.010(2) (b).

felony offenses on ~wo . ~~parafetleonoycciansiownhsich(KaRSfi6r3e5a.r0m20w(a3 s))u; sed i. n (c) a c~il~ charge wiffe~se who wa s at least fourteen ye ars old athtethcoemtmim7ses1oonf othfethaelleoged commission of the offense (KRS

635.020(4));

d 'th a felony who previously had been

(d) a child charge wi

der (KRS 635 .020(5)); and

convicted as a you~hful (e) a person who is at

offe~ le~s

e. i~httoeenhiys eeairgshoteldenathndb~irsthcdhaayrge(KdRS

with a felony that occurre prio

635.020(7)).

4In

the

case

of

a

c

h'
i

l

d
.

chatr' gleedaswt.i

th a f elony in fourteen years

which a old at

the

firearn, was used andd wffheonsise, a KRS 63 5. o20 (4 ) providers f oi tr appear s

time of the alleget ~s a youthful offender. t~~~e~~e 'county

automatic treatmenof KRS 640.010(1) and~~) child to Circuit

from the lanr1;11e a motion to tra~sgfe~hater esults in the attorney mus t trigger the hearin court in order o automatic transfer . .

7

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 9 of 17 PageID #:256

'

•
Due to the serious consequence s ass ociated with treatment as

a

yout hful offender I

it i.s c ommon for the c h ild's attorney to seek

additional time for investigation and preparation prior to the

transfer hearing• At the telephonic hearing, the county Attorney,

Garry Edmondson, pers onally ora lly c e r t i fied to this court that all

motions for t ransfer to the Circuit Court f or treatment as a

youthful off~nder are and will be made in the good f a i t h belief that the facts support such a transfer. He also said he could make

the necessary good faith detertnination within the 15 days.

Based upon the County Attorney's representat i on and the f act

that it is impossible to ensure t hat a transfer hearing will commence within 15 days of incarceration wi thout infringi ng the juvenile's right to adequate preparation and investigation, the court concludes that its July 26, 1996 findings of f act and

conclusions of law and amended judgment should be modified to

state:
Confining a juvenile in th~ Kenton County Detention Center for an extended period of time -- more than fifteen (15) days unless ~he
rosecutor has, in go~d faith~ fi~ed a motion ro transfer t he juvenile to Circuit Court f ~r treatment as a youthful offender -- is punishment without due process of law.
Any sta tements contained in the court 's J u1y 26 , 1 996 findings of
fact and c on c lusions of law or in the court's amended j udgment
filed t ha t s a me day tha t are i~consistent with this stat ement s ha ll

be vacated.

CONCLUSIONS OF LAW WILL

TBB FINDINGS OF PACT ~uGUAGE REQUIRED BY THE

BE

...~ E D
~ P' RIIS-ON

TLOIT

TTR~A~C~K10
J.UA.I,

N.l,U

MR,'IEFORM

ACT

OP

l 995

8

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 10 of 17 PageID #:257

•

In J'. ts motion t

o alter or amend

the court d'd
J. not make specific

' Kenton County contends that

enacted

Prison

Li' t.1gat1. on

findings required by the recently Refor1n Act of 1995,

Kenton County is

and, therefore

relief
Kenton

provided
County's

entitled

to

immed1. .at e

release

f rom

the

,
prospective

by this court's July 26 , 1996 amended judgment.

argument i• s w•ithout merit.

The Prison Litigation Reforrn Act of l995 provi·des, i·n part:

The court shall not
prospective relief unle gra~J or approve any

such relief is narrow;sy e court finds that

furth

th

drawn, extends no

. e~

an necessary to correct the

violat:,on of_ the Federal right' and is the

;~art 1;-ntrus1ve means necessary to correct the 10 ation of the Federal right.

18 U • S . C . A. § 3 6 2 6 (a) {1) (A) ( 199 6 ) . The A ct further provides for terrtt.ination of prospective relief if the court fails to make such
findings. 18 u.s.c. §3626(b) (2).

The court fully complied with the PLRA in its July 26, 1996

findings of fact and conclusions of law by paraphrasing the

required findings. However, in an abundance of caution and in an

effort to avoid any misunderstanding, the court hereby amends its

July 26, 1996 findings of fact and conclusions of law to

·

specifically state:

This court finds that the prospective relief

ordered in this case is narrowly dra~,

extends no further than necessary to correct

the current and ongoing vio~at~on _of the

p t

1
h

.
a1. e

t. f n 1 du.e

f

8,
pr

o

Fede cess

r

al consti
onfece1saswa,ry

tutio
d
anto

nal is
co

right
the le rrect

to ast the

intrus7ve
violation has given

omf eatnhsat t sub~tan

Federal right. The court

i.a1t

weight to any adverse or the operation of a

impact on. pub~ic safee: caused by this relief.

criminal J_ust i?e sy~t in accordance with the
This finding is ma e •

9

•

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 11 of 17 PageID #:258

•

•

Prison
u.s.c.

Litigation
§3626 (a) (1) .

Refortn

Act

of

1995,

18

COURTO'SRDAEMRENDED .Ju-u-~v~.uf:t,.1',P~~I IS NOT A •PRISONER RELEASE
" WITHIN 1'HE MEANING OP THE PLRA

Kenton County's fi nal contenti.on i. s that the court's July 2 6 ,

1996 amended judgment constitutes a "prisoner release order'' a s

used

•
in

the

PLRA,

18 u.s.c.

§3626(a) (3).

Therefore, according to

Kenton County, the order in question can be entered only by a

three-judge panel and only after a previously entered order for

less intrusive relief has failed to remedy the constitutional

deprivation. This contention is without merit.

The PLRA defines ''prisoner release order'' as nany order,

including a temporary restraining order or preliminary injunctive

relief, that has the purpose or effect of reducing or limiting the

prison population, or that directs the release from or nonadmission

of prisoners to a prison.'' 18 U.S.C.A. §3626(g) (4) (1996). This
.
definition must be read in conjunction with the substantive

prov1.·s1·.ons concerning prisoner release orders and in view of the legislative history underlying those prov•isi•ons.
To enter a prisoner release order, under the PLRA, a three-

judge panel must find by clear and convincing evidence that: '' (i)

crowding is the primary cause of the violation of a Fe~eral right;

and (ii) no other relief will ,remedy the vi~lation of the Federal
right.'' a1 u.s.c.A. §3626(a) (3) CE) {1996). In addition, the House
Judiciary Committee's report provides: • subsection (a) (2): Prison population ~eduction relief

10

•

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 12 of 17 PageID #:259

•

oTfhilsa

sstub

se

ct

·
ion

makes

prison

only if ~~~ort,. permitting a c:;ptso the . r emedy

is the " P:risoner proves. 1) th e imposed

,

primary''

·

at crowding

violation; and 2} thc:use of the federal

<;ure the violati a no other remedy will

imposed in recogn1~·. These requirements are

effects of prison ion of the severe, adverse

prisoner releases r~~~sdand the accompanying

*

i

e *

*on

to

meet

the

caps .

By requiring that a 1 . . .

actual violation of h·aint1.ff.1nm~te prove an

based on the alle i:d const1tut1.o~al rights

subsection will end ih overcrowding, this

imposing prison c e curren~ practice of

com 1 · d

aps when inmates have

p. a7ne .about the prison conditions but the

p~es1d1ng ~udg: has made absolutely no finding

•

o unconstitut7onality or even held any trial

on the allegations. In ordering or approving

these caps, some judges now oversee huge

progr~m~ Qf releases to keep the prison

J20pu. ation down to whatever that judge

considers an appropriate level.

House Committee on the Judiciary, Violent Criminal Incarceration

Act of 1995, H.R. Rep. No. 21, 104th Congress, 1st Session, p. 25

(1995) (emphasis added).

After reviewing the substantiye provisions concerning prisoner

release orders and the legislative history underlying this

provision of the PLRA, it is clear that the prisoner release order •
provisions are directed at prison caps, i.e. , orders directing the

release of inmates housed in a particular institution once that

institution houses more than a specific number of persons. This is

not that kind of case. In the case a t b ar, the court ordered· that children -- other
than those for whom the county attorney has filed a mo tion f or
transfer to Circuit court as a youthful offende r --not be for more than 15 days . The court's
incarcerated in the barren KCDC

11

• •

•

•

•

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 13 of 17 PageID #:260

•
•
order does not impose a cap
on the number of children incarcerated
at the KCDC--it
limits only the amount of time in which any
particular child may be held under the substandard conditions
present in the KCDC.

In addition, the court's order does not direct the release of
any child. It is undisputed that counties, including Kenton

County, often house juveniles in need of a secure facility in other

counties. In fact, such transfers from facilities in one county to

facilities in another county or even another state are extremely

common.

Indeed, the Kentucky Juvenile Code specifically

contemplates such transfers. See, e.g._. KRS 605. 090 and KRS

615.030. Kenton County remains free to transfer juveniles in

danger of exceeding the fifteen day limit from the KCDC to any

other juvenile facility that is appropriate. Accordingly, the

court's order does not come within the prisoner release order

provision of the PLRA.

TBR COMMONWEALTH DEPENDANTS' MOTION TO ALTER OR AMEND JUDGMENT IS DENIED
Defendants Paul Patton, Governor of the Commonwealth of
Kentucky and Doug Sapp, Commissioner of the Kentucky Department of corrections (collectively ''the Commonwealth defendants") rai•se three contentions in their motion to alter or amend the court's
I
July 26 , 1996 findings of fact and conclusions of law. First, the commonwealth defendants object to the court's
referring to "state'' officials, contending that the County
officials have pri•mary authori· ty t o operate the detention center.
12

• • •

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 14 of 17 PageID #:261

•

For purposes

of

c

1

a

. rif

i

c

a

tio

n,

the

court

notes

in the t·

that "state" is used

sec ion 1983 sense of officials acting under color of state

law and this included the
Commonwealth defendants and t he County defendants.
In addition, the Commonwealth defendants' objection does not affect the court's judgment in this case.

Second, the Commonwealth defendants contend that the

Commissioner of the Kentucky Department of Corrections does not

nsupervisen the KCDC, but they admit that the Commissioner has the

authority to "monitor" and ''inspect'' the KCDC. This objection seems to be a simple matter of semantics and does not require any

action on the part of the court. During the telephone conference

concerning the motions to alter or amend judgment, counsel for the

Commonwealth defendants indicated that she was concerned about the

use of the word ''supervise" because such supervision may have an

effect on liability for the plaintiffs' attorneys' fees. As the

court stated during the telephone conference, nothing i•n the

findings of fact and conclusions of law is intended to imply a

ruling concerning an attorneys' fee petition.

Finally, the Commonwealth defendants take issue with the

court, s statement that the defendants have not "produced any

documentary evidence that these alternatives [to complete sprinkler

suppression) were considered under the Codes FSES system or that
I
they were ever approved by the state fire marshal." See doc. #447

at 28. As the court specifically reserved ruling on the fire

saf ety i•ssue unti' l a court-appointed fire expert could be retained,

13

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 15 of 17 PageID #:262

•

•

there

•
is

no

need

to

revisit

the evidence s urrounding the fire

safety issue at this time.

Therefore, the court being advised,
:IT IS HEREBY ORDERED as follows :
1. That Kenton County's motio n t o alter, amend a nd va cate judgment {doc. #450-1) be, and it is, hereby granted as t o the
detertnination of what juveniles are exempt from t he fifteen d ay limitation period. The court's July 26, 1 996 f indings of fact and

conclusions of law and amended judgment are hereby modified t o
state:

Confining a juvenile in the Kenton County Detention Center for an extended period of time -- more than fifteen (15) days unless the prosecutor has, in good faith, filed a motion to transfer the juvenile to circuit Court for treatment as a youthful offender -- is punishment without due process of law.
Any statements contained in the court's July 26, 1996 findings of
fact and conclusions of law or in the court's amended judgment
filed that same day that are inconsistent with this statement are

hereby vacated; 2. That the court's July 26, 1996 findings of fact and

conclusions of law are hereby amended to specifically state:
This court finds that the prospective r e lief ordered in this case is narrowly dra~, extends no further than necessary to correct the current and ongoing violation of the plaintiffs' Federal constitutional right to the due process of law, and is the least intrusive means necessary to correct the violation of that Federa l right. The court has given substantial weight to any . adverse im act on public safety or the oper~tion ?fa crlminal justice syste~ caused by this !el1ef. This finding is made in accordanc e with the
14

• ..

!

•

Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 16 of 17 PageID #:263

•

Prison
u.s.c.

Litigation
§3626 {a) (1);

Reform

Act

of

1995,

18

3. That the remainder of Kenton County's motion to alter,

amend and vacate judgment (doc. #450-1} be, and it is, hereby

denied;
4 .

That Kenton County's motion for stay of execution of

judgment (doc. #450-2) be, and it is, hereby denied as moot;

5. That the motion of defendants Governor Paul Patton and

Doug

Sapp

to

alter or amend

judgment

(doc.

#459)

be,

1• s,
and it

hereby denied; and
6. That the stipulated motion for an extension of time in

which to file a petition for attorneys' fees until October 15, 1996

(doc. #456) be, and it is, hereby granted.

This

day of September, 1996.

W LIAM O. BERTELSMAN, CHIEF JUDGE

\
1s

•
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Case: 1:20-cv-02134 Document #: 26-3 Filed: 04/06/20 Page 17 of 17 PageID #:264

F I LE COP y

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

September 4, 1996

•

Case Number: 2:91-cv-00187

Barbara W. Jones Keith D. Hardison
R. Thaddeus Keal
James M. Burd Garry L. Edmondson
Shannon Wilber James Bell Kimberly A .. Brooks Mark I. Soler
Joseph u. Meyer
John Jay Fossett E. D. Klatte
Barbara D. Bonar
certificate of Mailing by ---1-C""'+lttl~,c+-----·

•

I

•

Case: 1:20-cv-02134 Document #: 26-4 Filed: 04/06/20 Page 1 of 9 PageID #:265
EXHIBIT C

Case: 1:20-cv-02134 Document #: 26-4 Filed: 04/06/20 Page 2 of 9 PageID #:266
DB'OSffOR'/ - JUSTICE DEPT. LIBRARY

Vol. 141

WASHINGTON, WEDNESDAY, SEPTEMBER 27, 1995

No. 152

<tongrrssionat· llrcord

00 NOT P'.:t\t.CVI::
t ge:r-u~~;; ~·~~ U.S. O<Jpt tcf Jus~-c
Mftin Liarary

United States of America

104th PROCEEDINGS AND DEBATES OF THE

CONGRESS, FIRST SESSION

United States Government Printing Office
SUPERINTENDENT OF DOCUMENTS Washington. DC 20402
OFFICIAL BUSINESS Penalty for private use. $300

SECOND CLASS NEWSPAPER
Postage and Fees Paid U.S. Government Printing Office
(USPS 087-J90)

*20.5300~

A CR MAlN OOOM OS 094 F

MAIN LIBRARY RM 5400

DEPT OF" ..JUSTICE

10TH ANO PENNSYLVANlA NW

~ASHINGTON

DC 20.530

Case: 1:20-cv-02134 Document #: 26-4 Filed: 04/06/20 Page 3 of 9 PageID #:267

' ':ptember 27, ·1995 ·

CONGRESSIONAL, RECORD-· SENATE

814413

<El bas as its sole purpose the e.cquisition and operation of &n integrated communica-

(d) LIQUIDATION OR ASSIGNMENT.-

employee, and yes, being served

(1) IN GENERAL.-ln order for a lender to re- chunky peanut butter instead of the

tions satellite system &nd other telecommunications fac111ties dedicated ·to transmitting instruction, education, &nd
training programming. (2) INTERIM ACQUismoN OF TRANSPONDER
cAPACITY.-As &n interim measure to acquire a communications satellite system dedicated

ceive a. loan guarantee under this section the lender shall agree to assign to the United
Sta.tea any right or interest in the communications satellite system or communications satellite system services that such lender possesses upon payment by the Secretary of Commerce on such loan guarantee.

creamy variety. The list goes on a.nd on.
These legal claims may sound farfetched, almost runny, but unfortunately, prisoner litigation does not operate in a vacuum. Frivolous lawsuits

to instruction, education, &nd training pro- (2) DISPOsmoN.-The Secretary may exer- filed by prisoners tie up the courts,

gramming, a corporation that meets the re- cise. reta.in, or dispose of any right or inter- waste valuable legal resources, a.nd af-

quirements of paragraph (1) may acquire un-
used satellite transponder cape.city owned or leased by a department or agency of the Fed-
eral Government or unused satellite trans-
ponder cape.city owned or leased by a non-
Feder&l broa.dcast organization for reuae by

est acquired pursuant to paragraph (1) in any manner that the Secretary considers appropriate.
(e) SPFiCIAL RULB.-Any loan guarantee under this section shall be guaranteed with fUll faith and credit of the United Sta.tea.

fect the quality of justice enjoyed by
law-abiding citizens. The time a.nd money spent defending these cases are clearly time and money better 15pent prosecuting violent cr1minals, tlghting

schools, colleges, community colleges, uni- (0 AUTHORIZATION OF APPROPRIATIONS.- illegal drugs, or cracking down on

versities. Sta.te agencies, libra.ries,.&nd other There are authorized to be appropriated such consumer fraud.

distant education centers at competitive, low costs, subject only to preemption for national security purposes.
(3) ENCOURAGEMENT . OF INTERCON-
NECTIVn'Y.-A corporation that meets the re-
quirements or para.graph (1) shall encourage
the interconnectivity of elementary &nd sec-

sums as may be necessary for each -nsca.l year to carry out this section.
(g) DEFINITIONS.-ln this section: (1) The term "acquire" includes acquisi-
tion through lease, purchasQ. or donation.
(2) The term "communications satellite system" means one or more communications

The National Association of Attor~ neys General estimates that inmate civil rights litigation costs the States more than $81 million each year. or course, most of these costs are incurred defending lawsuits that ha.ve no merit

ondary schools. colleges, &nd community satellites capable of providing service from wha.tsoever.

colleges. universities, Sta.te. agencies, librar- space, including transponder capacity, on Let me be more specific. According

ies. &nd other dist&nt education centers with such satellite or satellites.

·

the Arizona Attorney General Grant

.....

ground fac111ties . &nd services or United Sta.tea domestic common carriers &nd international common carriers &nd ground facilities &nd services or aatellite, cable, &nd other private communications systems in order to ensure technical compatibility &nd interconnectivity or the space segment with existing communications facilities in the United Sta.tes a.nd foreign countries to best serve United Sta.tee education, instruction, a.nd tr&ining needs &nd to achieve cost-effective, interoperability for friendly end-user,

(3) The term "national security preemption" means preemption by the Federal Government for national security purposes.
Mr. DOLE (for himself, Mr. HATCH, Mr. ABRAHAM, Mr. KYL, Mr. REID, Mr. SPECTER, Mrs. HUTCHISON, Mr. 'THuRMOND, Mr. SANTORUM, Mr. BoND, Mr. D'AMATO, and Mr. GRAMM):
S. 1279. A bill to provide for appro-

Woods, a staggering 45 percent of the civil cases filed in Arizo:c.a.'s Federal courts last yea.r were filed by State
prisoners. That means that 20,000 prisoners in Arizona. filed almost as many cases as Arizona's 3.5 million law-abid-
ing citizens. And most of these prisoner. lawsuits were filed free of charge. No court costs. No filing fees. This is outrageous and it must stop.

"last mile" a.ccess and use. (4) TEcHNICAL AND TRAINING NEED8.-A cor-
poration that meets the requirements of paragraph (1) shall determine the technical &nd training needs or educations users &nd providers to fac111ta.te coordinated &nd efflcient use of a communications satellite system dedicated to Instruction, education, and training to rurther unlimited a.ccess for schools, colleges, community colleges, universities, Sta.te agencies, libraries, &nd other dista.nt education centers.
(b) ELIGIBLE Lc>ANS.-The Secretary of Commerce may guarantee a loan under this
section only lf(1) the corporation described in subsection
(a)(l) ha.s(A) investigated all practical means of ac-
quiring a. communications satellite system; (B) reported to the Secreta.ry the nndings
or such Investigation; and (C) identtned for acquisition the most cost-
effective, high-qua.Uty communications ·satellite system to meet the purpose of this
Act; and (2) the proceeds of such loan are used sole-
ly to acquire and operate a communications satellite system dedicated to transmitting instruction, education, and training programming.

priate remedies for prison condition lawsuits, to discourage frivolous and abusive prison lawsuits, and for other purposes; to the Committee on the Judiciary.
THE PRISON LmGATION REFORM ACT OF 1995
Mr. DOLE. Mr. President, I am pleased to join today with my distinguished colleagues, Senators HATCH, KYL, ABRAHAM, HUTCHISON, REID, THURMOND, SPECTER, SANTORUM, D'A.MATO,
GRAMM, and BoND, in introducing the Prison Litigation Reform Act of 1995.
This legislation is a new and improved version of S. 866, which I introduced earlier this year to address the alarming explosion in the number of frivolous lawsuits filed by State and Federal prisoners. It also builds on the stop-turning-out-prisoners legislation, championed by Senators KAY BAILEY HUTCHISON and SPENCER ABRAHAM. by making it much more difficult for Federal judges to issue orders directing the release of convicted criminals from prison custody.

GARNISHMENT
Mr. President, I happen to believe that prisons should be just that-prisons, not law firms. That is· why the
Prison Litigation Reform Act proposes several important reforms that would dramatically reduce the number or meritless prisoner lawsuits.
For starters, the act would require inmates who file lawsuits to pay the full amount of their court fees and other costs.
Many prisoners filing lawsuits today in Federal court claim indigent status. As indigents, prisoners are generally not required to pay the fees tha.t normally accompany the filing of a law-
suit. In other words, there is no economic disincentive to going to court.
The Prison Litigation Reform Act would change this by establishing a garnishment procedure: If a prisoner is unable to fully pay court fees and other costs at the time of filing a lawsuit, 20 percent of the funds in his trust account would be garnished for this purpose. Every month thereafter, a.n addi-

(c) Lc>AN GUARANTEE LIMITATIONS.-The Secreta.ry of Commerce may not guarantee more than $270,000,000 In loans under the program under this section, of which-
(1) not more than $250,000,000 shall be for the guarantee of such loans the proceeds of
which a.re used to acquire a communications

INMATE LITIGATION
Unfortunately, the litigation explosion now plaguing our country does not stop at the prison gate._ According to Enterprise Institute scholar Walter Berns, the number of "due-process and

tional 20 percent of the income cred-
ited to the prisoner's account would be garnished, until the full amount of the
court fees and costs are pa.id-off. When average law-abiding citizens
file a lawsuit, they recognize that

satellite system; and

cruel and unusual punishment" com- there could be an economic downside to

(2) not more than $20.000,000 shall be used plaints filed by prisoners has grown as- going to court. Convicted cr1minals

for the guarantee of such loans the proceeds tronomically-from 6,600 in 1975 to should not get preferential. treatment:

of which are used to pay the costs of not more than 4 years of operating and management expenses associated with providing integrated communications satellite system services through the integrated communications satellite system referred to in sub-

more than 39,000 in 1994. These suits ·can involve such grievances as insufficient storage locker space, a defective haircut by a prison barber, the failure of prison officials to invite a prisoner

If a law-abiding citizen has to pay the
costs associated with a lawsuit, so too
should a convicted criminal. In addition, when prisoners know
that they will have to pay these costs--

section (a)(l)(E).

to a pizza. party for a departing prison perhaps not at the time of filing, but

Case: 1:20-cv-02134 Document #: 26-4 Filed: 04/06/20 Page 4 of 9 PageID #:268

Sl4414

CONGRESSIONAL RECORD-SENATE

September 27, 1995

a wentually-they will be less inclined
~o file lawsuit in the first place.
JUDICIAL SCREENING
Another provision of the Prison Litigation Reform Act would require judicial screening, before docketing, of a.ny

months ha.s been invaluable as we ha.ve attempted to draft a better, more effective piece ofleglsla.tion.
Mr. President, I ask unanimous consent that the full text of the Prison Litigation Reform, as well as a. letter

"(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-
judge court and materials sufficient to demonstrate that the requirements of subpara-
graph (A) have been met. "(D) IC the requirements under subpara-

civil complaint filed by a prisoner from the National Association of At- graph (A) have been met. a Federal judge be-

seeking relief from the Government.
This. provision ·would allow a. Federal
judge to immediately dismiss a com-
plaint if either of two conditions is
met: First, the complaint does not state a. claim upon which relief may be granted, or second, the defendant is im-

torneys General and a section-by-sec-
tion summary, be reprinted in the
RECORD. There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
s. 12'19

fore whom a civil action with respect to pris-

on conditions is pending who believes that a

mpr&isyonsuarelsepaosneteorredqeur essht otuhled

be collBidered convening or a

three-judge court to determine whether a

prisoner release order should be entered.

"(E) The court shall enter a prisoner re-

lease order only If the court find&--

mune from suit.
OTHER REFORMS
The Prison Litigation Reform Act would also allow Federal courts to revoke a.ny good-time credits accwnu-

Be it enacted by the Senate and House of Representatives of the United States of America in Congre8s assembled,
SECTION 1. SHORT Trn.E.
This Act may be cited as the "Prison Litigation ~form Act of 1995".

"(i) by clear and convincing evidene&"(l) that crowding ls the primary ca.use of the violation of a Federal right; and "(II) that no other relief will remedy the
violation of the Federal right; and "(ii) by a preponderance of the evidence--

lated by a prisoner who files a frivolous suit. It requires State prisoners to exhaust all. administrative remedies before filing a lawsuit in Federal court. And it prohibits prisoners from suing the Government· for mental or emotional injury, absent a prior showing of physical injury.
If enacted, all of these provisions would go a long way to take the frivolity out of frivolous inmate litigation.
STOP TURNING OUT PRISONERS
The second major section of the Pristm Litigation Reform Act establishes some tough new guidelines for Federal courts when evaluating legal challenges to prison conditions. These guidelines will work to restrain liberal

SEC. 2.. APPROPRIATE REMBDIES FOR PRISON
CONDmONS.
(a) IN GENERAL.-Section 3626 of title 18, United States Code, is amended to read as follows:
"§ 3628. Appropriate remediee with re8peci to
prison conditiona
"(a) REQUlREMENTS FOR RELIEF.-
"(l) PRoSPECTIVE RELIEF.-{A) Prospective rel!ef in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation or the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective rel!ef unless the court finds that such rel!ef ls narrowly drawn. extends no further than necessary to correct the violation of the Federal right, and ls the least intrusive means necessary to correct the violation of the Federal right. The court shall

"(!) that crowding has deprived a particu-

lar plaintiff or plaintiffs of at lea.st one es-

sential, identifiable human need; and

"(II) that prison officials have acted with

obduracy and wantonness in depriving the

particular plaintiff or plaintiffs of the· one

essential, identifiable human need caused by

the crowding.

·

"(F) Any State or local official or unit of

government whose jurisdiction or function

includes the prosecution or custody of per-

sons who may be released from. or not ad-

mitted to, a prison as a result of a prisoner

release order shall have standing to oppose

the imposition or continuation in effect of

such relief and to seek termination or such

relief, and shall have the right to intervene

in any proceeding relating to such relief. "(b) TERMINATION OF RELIEF.-

"(!) TERMINATION OF PROSPF.CI'IVE RELIEF.-

(A) In any civil action with respect to prison

Federal judges who see violations on give substantial weight to any adverse im- conditions in which prospective relief is or-

constitutional rights in every prisoner pact on publ!c safety or the operation of a dered, such relief shall be terminable upon

complaint and who ha.ve used these complaints to· micromanage State and local prison systems.
Perhaps the most pernicious form of judicial micromanagement is the so-

criminal justice system caused by the relief.
"(B) Nothing in this section shall be con-
strued to authorize the courts, In exercising their remedial powers, to order the construction of prisons or the raising of taxes, or to repeal or detract from otherwise applicable

the motion of any party"(i) 2 years after the date the court grant-
ed or approved the prospective relief; "(ii) 1 year after the date the court has en-
tered an order denying termination of prospective relief under this paragraph; or

called prison population cap.

l!m!tatlons on the remedial powers or the "(iii) in the case or an order Issued .on or

In 1993, for example, the State of courts.

before the date of enactment of the Prison

Florida put 20,000 prisoners on early re- "(2) PRELIMINARY INJUNCTIVE RELIEF.-ln ··Litigation Reform Act, 2 years after such

lease because of a prison cap order itr any civil action with respect to prison condi- date of enactment.

sued by a Federal judge who thought tions, to the extent otherwise authorized by "(B) Nothing In this section shall prevent

>.

the Florida system was overcrowded and thereby inflected cruel and un-

law, the court may enter a temporary restraining order or an order for preliminary injunctive rel!ef. Preliminary injunctive re-

the parties from agreeing to terminate or modify relief before the relief is termina.ted under subparagraph (A).

usual punishment on the State's pris- lief must be narrowly drawn, extend no f'ur- "(2) IMMEDIATE TERMINATION OF PROSPEC-

oners.

ther than necessary to correct the harm the TIVE RELIEF.-ln any civil action with re-

And, then, there's the case of Phila- court finds requires preliminary relief, and spect to prison conditions, a defendant or in-

delphia, where a court-ordered prison be the least intrusive means necessary to tervener shall be entitled to the immediate

cap has put thousands of violent crimi- correct that harm. Preliminary injunctive termination or any prospective relief if the

nals back on the city's streets, often with disastrous consequences. As Pro. John Diiulio has pointed out: "Federal Judge Norma. Shapiro has singlehandedly decriminalized property and

rel!ef shall a,utoJlil&t!cally expire on the date that is 90 days after !ts entry, unless the court makes the findings required under subsection (a)(l) for the entry of prospective re-
lief and makes the order final before the expiration of the 90-day period.

relief was approved or granted in the absence
of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Fed-
eral right. and is the least intrusive means necessary to correct the violation of the Fed-

drug crimes in the City of Brotherly "(3) PRISONER RELEASE ORDER.-{A) In any eral right.

.

Love * * * Judge Shapiro has done civil action with respect to prison condi- "(3) LlMITATION.-Prospective relief shall

what the city's organized crime bosses tions. no prisoner relea.Soi order shall be en- not terminate if the court makes written

never could; namely, turn the town
into a major drug smuggling port." By establishing tough new conditions
tha.t a. Federal court must meet before iss'uing a. prison cap order, this bill will

tered unless"(i) a court has prevfouilly entered an order
for less intrusive rel!ef that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and

findings based on the record that prospective relief remains necesSe.ry to correct a current or ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right. and that the prospective relief ls narrowly drawn and

help slam-shut the revolving prison "(!!) the defendant has had a reasonable the least intrusive means to correct the vio-

door.

amount of time to comply with the previous lation.

CONCLUSION
Finally, Mr. President, I want to express my special thanks to Arizona Attorney General Grant Woods and to the

court orders. "(B) In any civil action in Federal court
with respect to prison conditions, a prisoner release order shall. be entered only by a
three-judge court in accordance with section

"(4) TER.'o!INATION OR MODIFICATION OF RELIEF.-Nothing in this section shall prevent any party from seeking modification ar termination before the rel!ef is terminable under paragraph (1) or (2), to the extent that

National Association of Attorneys Gen- 22&f of title 28, if the requirements of sub- modification or termination would otherwise

eral. Their input these past several paragraph (El have been met.

be legally permissible.

Case: 1:20-cv-02134 Document #: 26-4 Filed: 04/06/20 Page 5 of 9 PageID #:269

; ,·September 27, 1995

CONGRESSIONAL RECORD-SENATE

814415,_.

"(C) SETTLEMENTS.-

under pa.ra.gra.ph (1). In no event shall the ap- (b) CERTIFICATION REQUIREMENTS.-Section

"(!) CONSENT DECREES.-In any civil action pointment of a special master extend beyond 4 of the Act (42 U.S.C. 1997b) is amended-

with respect to prison conditions, the court the termination of the relief.

(1) in subsection (a.}-

shall not enter or approve a consent decree "(6) LIMITATIONS ON POWERS AND DUTIES.-A (A) by striking "he" ee.ch place it appears

unless it complies with the limitations on re- special master appointed under this sub- and inserting "the Attorney General"; a.nd

lief set forth in subsection (a).

section-

(B) by striking "his" a.nd inserting "the

"(2) PRIVATE SE'ITLEMENT AGREEMENTS.- "(A) shall ma.ke any findings ba.sed on the Attorney Genera.l's"; a.nd

(A) Nothing in this section shall preclude record as a whole;

(2) by amending subsection (b) to rea.d as

parties Crom entering Into a private settle- "(B) shall not ma.ke a.ny findings or com- follows:

ment agreement that does not comply with munications ex pa.rte; a.nd

"(b) The Attorney General shall pers0nally

the limitations on relief set forth in sub- "(C) ma.y be removed at a.ny time, but shall sign a.ny certification ma.de pursuant to this

section (a), if the terms of that agreement be relieved of the appointment upon the ter- section.".

a.re not subject to court enforcement other mination of rel!ef.

(C) INTERVENTION IN ACTIONS.-Section 5 of

than the reinstatement of the civil proceed- "(g) DEFINITIONS.-As used in this section- the Act (42 U.S.C. 1997c) is amended-

ing that the agreement settled.

"(l) the term 'consent decree' means a.ny (1) in subsection (b}-

"(B) Nothing in this section shall preclude relief entered by the court that is based in (A) in pa.ragra.ph (1), by striking "he" each

&nY party claiming that a private settlement whole or in pa.rt upon the consent or acquies- place it appears a.nd inserting "the Attorney

agreement has been breached from seeking cence of the parties but dues not include pri- General"; a.nd

in State court any remedy for breach of con- vate settlements;

(B) by amending pa.ra.gra.ph (2) to rea.d a.Ii

tract available under State law.

"(2) the term 'civil action with respect to follows:

"(d) STATE LAW REMEDIES.-The limita- prison conditions' me&ns &ny civil proceed- "(2) The Attorney General shall persona.Hy

tions on remedies in this section shall not ing arising under Federal la.w with respect to sign a.ny certification ma.de pursuant to this

apply to relief entered by a State court based the conditions of confinement or the effects section."; a.nd

solely upon claims arising under State law. of actions by government officials on the (2) by amending subsection (c) to rea.d as

"(e) PRocEDURE FOR MOTIONS AFFECTING l!ves of persons confined 4'.n prison, but does follows:

PRoSPECTIVE RELIEF.-

not include habeas corpus proceedings chal- "(c) The Attorney General shall personally

• "(1) GENERALLY.-The court shall promptly lenging the· fact or duration of confinement sign a.ny motion to intervene ma.de pursuant

rule on &ny motion to modify or terminate in prison;

to this section.".

prospective relief in a civil action with re- "(3) the term 'prisoner' me&ns a.ny person (d) Surrs BY PRISONERS.-Section 7 of the

spect to prison conditions.

subject to incarcera.tion, detention, or ad- Act (42 U.S.C. 1997e) is amended to -read as

"(2) AUTOMATIC STAY.-Any prospective re- mission to a.ny fa.c111ty who is a.ccused of, follows:

lief subject to a pending motion shall be automatically stayed during the period-
"(A)(i) beginning · on the 30th day after such motion is filed, in the case of a motion made under para.graph (1) or (2) of subsection
(b); or "(!!) beginning on the 180th day after such
motion is filed, in the ca.se of a. motion ma.de under subsection (b)(4); a.nd
"(B) ending on the date the court enters a. final order ruling on the motion.
"(0 SPECIAL MASTERS."(1) IN GENERAL.-(A) In a.ny civil action in a. Federal court with respect to prison conditions, the court ma.y appoint a disinterested and objective special master, who will give due regard to the public safety, to conduct hearings on the record and preps.re proposed
findings of fa.ct. "(B) The court shall appoint a special mas-
ter under this subsection during the remedial phase of the action only upon a finding that the remedial phase will be sufficiently complex to warrant the appointment.
"(2) APPOINTMENT.-(A) If the court determines tha.t the appointment of a. special master is necessa.ry, the court shall request tha.t the defendant institution arld the plaintiff ea.ch submit a. !!st of not more tha.n 5 persons

convicted of. sentenced for, or adjudicated del!nquent for, violations of criminal la.w or the terms &nd conditions of pa.role, probe.-· tion, pretrial release, or diversionary program;
-"(4) the term 'prisoner relea.se order' Includes a.ny order, including a. temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadm!ssion of prisoners to a. prison;
"(5) the term 'prison' means a.ny Federal, State, or local fa.c111ty that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of crimina.l la.w;
"(6) the term 'private settlement agreement' means a.n agreement entered into among the parties that Is not subject to judicial enforcement other than the reinstatement of the civil proceeding tha.t the agreement settled;
"(7) the term 'prospective rel!ef' means all rel!ef other tha.n compensatory monetary damages; a.nd
·~(8) the term 'relief' means a.II rel!ef in any form tha.t ma.y be granted or approved by the court, and includes consent decrees but does

"SEC. 7- 8UrI'8 BY PRISONERS.

"(a.) .APPLICABILITY OF ADMINISTRATIVE

REMEDIEs.-No action l!hall be brought with

respect to prison conditions under section

1979 of the Revised Statutes of the United

States (42 U.S.C. 1983), or &ny other la.w, by

a. prisoner confined in a.ny ja.il, prison, or

other correctional fe.c111ty until such admin-

istrative remedies as a.re a.vaila.ble a.re - ex-

hausted.

"(b) FAILURE OF STATE To ADoPI' OR AD-

HERE TO ADMINISTRATIVE GRIEVANCE PRocE-

DURE.-The fa.!lure of a. State to adopt or ad-

here to a.n administrative grievance proce-

dure shall not constitute the ha.sis for a.n ac-

tion under section 3 or 5 of this Act.

"(c) DISMISSAL.-(1) The court shall on its

own motion or on the motion of a party dis-

miss any action brought with respect to pris-

on conditions under section 1979 of the Re-

vised Statutes of the United States (42 U.S.C.

1983), or any other la.w, by a. prisoner con-

fined in a.ny ja.11, prison, or other correc-

tional fa.ciI!ty if the court is satisfied that

the action fails to state a. claim upon which

relief ca.n be granted or is frivolous or ma.li-

cious.

.

"(2) In the event tha.t a. claim is, on its

fa.ce, f'rivolous or ma.l!cious, the court ma.y

to serve as a special master.

not include private settlement agreements.". dismiss the underlying claim without first

"(B) Each party shall ha.ve the opportunity (b) APPLICATION OF AMENDMENT.-

requiring the exhaustion of a.dministra.tive

to remove up to 3 persons from the opposing (1) IN GENERAL.-Section 3626 of title 18, remedies.

party's list.

United States Code, as a.mended by this sec- "(d) ATTORNEY'S FEES.-(1) In a.ny action

"(C) The court shall select the master from tion, shall apply with respect to a.II prospec- brought by a prisoner who is confined to a.ny

the persons remaining on the !!st after the t!ve relief whether such rel!ef was originally ja.il, prison, or other correctional fa.cil!ty, in

operation of subpa.ra.graph (B).

granted or approved before, on, or after the which attorney's fees a.re authorized under

"(3) INTERLOCUTORY APPEAL.-Any party da.te of the enactment of this Act.

section 2 of the Revised Statutes of the Unit-

sha.11 have the right to an interlocutory a.p- (2) TECHNICAL AMENDMENT.-Subsections ed States (42 U.S.C. 1988), such fees shall not

pea.l of the judge's selection of the special (b) a.nd (d) of section 20409 of the Violent be awarded, except tO the extent that-

master under this subsection, on the ground Crime Control a.nd Law Enforcement Act of "(A) the fee wa.s directly a.nd rea.sona.bly

of pa.rt!ality. .

1994 a.re repealed.

incurred in proving a.n a.ctua.1 violation of

"(4) COMPENSATION.-The compensation to (c) CLERICAL AMENDMENT.-The table of the plaintiff's rights protected by a. statute

be allowed to a. special master under this sec- sections at the beginning of subchapter C of pursuant to which a. fee ma.y be a.warded

tion shall be ba.sed on a.n hourly ra.te not chapter 229 of title 18, United States Code, is under section 2 of the Revised Statutes; a.nd

greater the.ii the hourly ra.te established a.mended to rea.d as follows:

"(B) the amount of the fee is proportion-

under section 3006A for payment of court-a.p- "3626. Appropriate remedies with respect to ately related to the court ordered relief for

pointed counsel, plus costs rea.sona.bly in-

prison conditions.".

the violation.

.

curred by the special master. Such com- SEC. 3. AMENDMENTS TO CIVIL RIGHTS OF INSTI· "(2) Whenever a. monetary judgment is

pensation !'-nd costs shall be pa.id with funds

'IV110NALIZED PERSONS ACT.

a.warded in a.n action described in pa.ra.gra.ph

a.ppropria.ted to the Federal Judiciary.

(a.) INITIATION OF crvn. ACTIONS.-8ection (1), a portion of the judgment (not to exceed

"(5) REGULAR REVIEW OF APPOINTMENT.-ln 3(c) of the Civil Rights of Institutionalized 25 percent) shall be applied to sa.tisfy the

a.ny civil action with respect to prison condi- Persons Act (42 U.S.C. 1997a.(c)) (referred to amount of attorney's fees a.warded against

tions in which a. special ma.ster is appointed in this section a.s the "Ac°t") is amended to the defendant. If the a.ward of'attorney's fees

under this subsection, the court shall review rea.d a.s follows:

is greater than 25 percent of the judgment,

the appointment of the special master every "(c) The Attorney General shall personally the excess sha.ll be paid by the defendant.

6 months to determine whether the services sign a.ny complaint flied pursuant to this "(3) No a.ward of attorney's fees. in a.n ac-

of the special master continue to be required section.".

tion described in para.graph (1) shall.~ ~~d.

Case: 1:20-cv-02134 Document #: 26-4 Filed: 04/06/20 Page 6 of 9 PageID #:270

814416

CONGRESSIONAL RECORD-SENATE

September 27, _1995

,n an hourly rate greater than the hourly davit med under paragraph (1), sha.11 submit "(C) In no event sha.11 the costs collected.

rate established under section 3006A or title a certified copy of the trust fund account exceed the a.mount or the costs ordered by

18, United States Code, for payment or court- statement (or institutiona.1 equivalent) tor the court.".

a.ppointed counsel.

the prisoner ror the 6-month period Imme- (C) SUCCESSIVE CLAIMs.-Section 1915 of

"(4) Nothing in this subsection sha.11 pro- diately preceding the filing of the complaint title 28, United States Code, Is a.mended by

hibit a. prisoner from entering Into a.n a.gree- or notice of appeal. obta.ined from the appro- a.dding at the end the following new sub-

ment to pay a.n attorney's fee In an amount priate official of ea.ch prison at which the section:

greater tha.n. the a.mount authorized under prisoner Is or wa.s confined."; and

"(g) In no event shall a prisoner in a.ny

this subsection, it the fee Is paid by the lndi- (G) by striking "An a.ppea.l" a.nd Inserting prison bring a. civil action or a.ppea.1 a. judg- '

vidua.1 rather tha.n by the defenda.nt pursu- "(3) An a.ppeal";

ment In a. civil a.ction or proceeding under

ant to section 2 or the Revised Statutes or (2) by redesigns.ting subsections (b), Cc), this section if the prisoner ha.s, on 3 or more

the United States (42 U.S.C. 1988).

(d), and (e) a.s subsections (c), (d), (e), a.nd (0,. prior occa.slons, brought a.n a.ction or a.ppea.l

"(e) LIMITATION ON REcoVERY.-No Federa.1 respectively;

in a. court of the United States tha.t was dis-·

civil a.ction ma.y be brought by a. prisoner (3) by inserting a.fter subiiection (a.) the fol- missed on the grounds that It is rrtvolous.

confined in a. ja.11, prison, or other correc- lowing new subsection:

ma.licious, or fa.Ila to sta.te a. cla.im upon

tions.I ra.cllity. ror menta.1 or emotiona.1 in- "(b)(l) Notwithsta.nding subsection (a.), if a. which relief may be granted, unless the pris-

jury suffered while in custody without a. prisoner brings a civil action or files a.n a.p- oner is under Imminent da.nger of serious

prior showing o! physical Injury.

pea.l In forms. pauperls, the prisoner sha.11 be bodily ha.rm....

"(0 HEARING LocATION.-To the extent required to pay the full a.mount of a. filing (d) DEFiNrrroN.-Section 1915 of title 28,

practica.ble, In a.ny a.ction brought with re- fee. The court sha.11 a.ssess. and when funds United States Code, Is a.mended by a.dding a.t

spect to prison conditions in Federa.1 court exist, collect, a.s a. pa.rtial payment of a.ny the end the following new subsection:

pursuant to section 19'79 or the Revised Stat- court fees required by la.w, an initla.1 paz-tia.l "(h) As used In this section, the term 'pris-

utes or the United States (42 U.S.C. 1983), or filing fee or 20 percent of the greater of-

oner' mea.ns a.ny person incarcerated or de-

a.ny other la.w, by a. prisoner confined in a.ny "(A) the avera.ge monthly deposits to the ta.ined in a.ny fa.cility who is a.ccused of, con-

ja.11. prison, or other correctiona.l ra.cility, prisoner's account; or

victed or, sentenced for, or a.djudica.ted delin-

• pretria.1 proceedings in which the prisoner's "(B) the average monthly ba.la.nce in the quent for, viola.tions of crimina.l law or the
participation is required or permitted sha.11 prisoner's a.ccount for the 6-month period tez-ms a.nd conditions of pa.role, probation.

be conducted-

Immediately preceding the filing or the com- pretrial relea.se, or diversionary program.".

"(}) a.t the fa.cil1ty; or "(2) by telephone or video conference without removing the prisoner from the fa.cil1ty in which the prisoner is confined.

pla.int or notice of appea.1. "(2) After pa.yment or the initial paz-tia.1
filing fee. the prisoner sha.11 be required to ma.ke monthly payments of 20 percent or the

SEC. 5. .JUDICIAL SCREENING.
(a.) IN GENERAL.-Cha.pter 123 of title 28, United States Code, is a.mended by inserting a.fter section 1915 the following new section:

Any State ma.y a.dopt a similar requirement regarding hes.rings in such actions in that State's courts.
"(g) WAIVER OF REPLY.-{l) Any defendant ma.y wa.ive the right to reply to a.ny a.ction brought by a. prisoner confined in a.ny ja.11, prison, or other correctiona.l fa.cil1ty under section 1979 of the Revised Sta.tutes of the United States (42 U.S.C. 1983) or any other la.w. Notwithstanding any other la.w or rule of procedure, such wa.ivei- sha.11 not constitute a.n a.dmission o! the a.llega.tions conta.ined in the complaint. No relief sha.11 be granted to the plaintiff unless a reply ha.s been filed.
"(2) The court may, in its discretion, require any de!enda.nt to reply to a. compla.int commenced under this section.
"(h) DEFINrrION.-A.s used In this section, the term 'prisoner' mea.ns any person incarcerated or deta.ined in any facility who is a.ccused or, convicted of. sentenced !or, or a.djudica.ted deli!lquent tor, violations of crlmina.l law or the terms and conditions or parole, probation, pretria.1 release, or diversionary program.''.

(e) REPORT TO CONGRESS.-Section 8 or the Act (42 U.S.C. 1997!) is a.mended by striking "his report" and inserting "the report".
(0 NOTICE TO FEDERAL DEPARTMENTS.-Section 10 of the Act (42 U.S.C. 1997h) Is a.mend-

ed(1) by striking -"his a.ction" a.nd lnsez-ting
"the a.ction"; a.nd

(2) by striking "he is satisfied" a.nd Inserting "the Attorney General ls satisfied''.

SEC. 4. PROCEEDINGS JN l'ORMA PAUPERJS.

(a) Fll.JNG FEEs.-Section 1915 of title 28,

United States Code, is a.mended-(1) in subsection (a}-

(A) by striking "(a.) Any" a.nd insertlnp"(a.)(1) Subject to subsection (b), a.ny";
(B) by striking "and costs"; (C) by striking "makes a.tfidavit" and inserting "submits an a.ffida.vit";

(D) by striking "such costs" and inserting

"such fees";

·

(E) by striking "he" ea.ch place it a.ppea.rs

and inserting "the person"; (F) by a.dding lmmedia.tely after paragraph

preceding month's Income credited to the prisoner's account. The a.gency ha.Ying custody of the prisoner sha.11 forward payments from the prisoner's account to the clerk or the court ea.ch time the a.mount In the a.ccount exceeds SlO until the filing fees a.re paid.
"(3) In -no event sha.11 the filing fee collected exceed the amount of fees permitted by statute for the commencement of a. civil action or a.n appea.l of a. civil a.ction or criminal judgment.
"(4) In no event sha.11 a. prisoner be prohibited from bringing a. civil a.ction or a.ppealing a civil or crimina.l judgment !or the reason tha.t the prisoner ha.s no a.ssets a.nd no means by which to pa.y the initia.1 pa.rtia.l filing fee.";
(4) in subsection (c), a.a redesigna.ted by paragraph (2), by striking "subsection (a.) of this section" a.nd lnsez-ting "subsections (a.) a.nd (b) a.nd the prepayment or a.ny paz-tial filing fee a.s ma.y be required under subsection (b)"; a.nd
(5) by a.mending subsection (e), a.s redeslgna.ted by para.graph (2), to read a.a follows:
"(e)(l) The court ma.y request a.n attorney
to represent any person una.ble to a.trord counsel.
"(2) Notwithsta.nding any filing tee that ma.y ha.ve been J)l\fd, the court sha.11 dismiss the case at a.ny time it the court determines tha.t- "(A) the allegation of poverty is untrue; or
"(B) the action or a.ppea.1"(1) Is frivolous or ma.licious; or "(11) fa.ils to state a. cla.im on ·which relief may be gra.nted.".
(b) COsTS.-Section 1915(0 or title 28, United Sta.tee Code (a.a redesigna.ted by subsection (a.)(2)), is amended-
(!) by striking "CO Judgment" a.nd insert-
ing "(0(1) Judgment"; (2) by striking "ca.ses" and Inserting "pro-
ceedings"; a.nd
(3) by a.dding at the end the following new paragraph:
"(2)(A) If the judgment a.gs.inst a prisoner
Includes the payment of costs under this subsection, the prisoner shall be required to pay

"I 1915A. Screeninr
· "(a.) ScREENING.-The court sha.11 review, before docketing, IC fea.slble or. In a.ny event, a.s soon a.s practicable a.tter docketing, a. compla.int in a. civil a.ction in which a. prisoner seeks redress from a. governmenta.1 entity or officer or employee of a. governmenta.1 entity.
"(b) GROUNDS FOR DISMI58AL..--0n review, the court sha.11 dismiss the compla.int, or a.DY· portion or the compla.int, tr the compla.int-
"(1) ra.ils to state a claim upon which relief may be gra.nted; or
"(2) seeks monetary relief from a. detenda.nt who Is immune from such relief.
"(c) DEFINITION.-As used in this section. the term 'prisoner' mea.ns a.ny person incarcerated or deta.ined In any fa.cility who Is accused of, convicted or. sentenced for, or a.djudica.ted delinquent for, viola.tions of crlmina.l la.w or the terms and conditions of parole, probation, pretrial relea.se, or diversionary program.''.
(b) TECHNICAL AMENDM'.ENT.-The a.na.lysis for cha.pter 123 of title 28, United Sta.tea Code, Is amended by inserting a.fter the Item rela.ting to section 1915 the following new item:
"1915A. Screening.".
SEC. 8. FEDERAL TORT CLAIMS.
Section 1346(b) of title 28. United States Code, is amended-
(!) by striking "(b)" and insez-ting "(b)(l)"; a.nd
(2) by adding a.t the end the following: "(2) No person convicted of a. felony who is incarcerated while a.wa.iting sentencing or while serving a. sentence ma.y bring a. civil action a.gs.inst the United Sta.tea or a.n a.gency, officer, or employee of the Government, ror menta.1 or emotiona.l injury-:-sutrered while in custody without a prior showing of physica.l injury.".
SEC. 7. EARNED RELEASE CREDrr OR GOOD TDD CREDIT REVOCATION.
(a) IN GENERAL.-Cha.pter 123 of title 28, United Sta.tes Code, is amended by adding a.t the end the following new section: ·
"§ 1932. Revocation of earned releaae credit

(1), the following new paragraph:

the full a.mount of the costs ordered.

"In a.ny civil action brought by a.n a.dult

"(2) A prisoner seeking to bring a. civil ac- "(B) The prisoner shall be required to convicted of a. crime a.nd confined in a. Fed-

tion or a.ppea.l a. judgment In a. civil action or ma.ke payments for costs under this sub- era.l correctional ra.cility, the court may

proceeding without prepayment of fees or se- section In the sa.me manner as Is provided for order the revocation or such ea.med good

curity therefor, in a.ddition to filing the a.tfi- filing fees under subsection (a.)(2).

time credit under section 3624(b) of title 18,

s..
·•.

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Septem~r 27, 1995

CONGRESSIONAL·.·RECORD-..SENATE

•

-- •·. ·-i'

814417: .... .. ... , ____ ..._

~

·~·

United States Code, that b.a.s not yet vested. Public officials whose function includes Section 4: Proceedings In Forma Pauperia:

If, on !ts own motion or the motion of any the prosecution or custody of persons who This section reforms the filing of suits in

pe.rty. the court flnds that-

could be released from, or not admitted to. a rorma pa.uperis by prisoners.

, ·~,

"(l) the claim wa.s flled for a malicious prison or jail as a result or a population cap Requires an inmate seeking to rue In

purpose;

would have standing to cha.llenge the imposi- !orma pauperis to submit to the court a cer-·

"(2) the claim wa.s filed solely to harass the tion or continuation of such a cap.

. tilled copy of the inmate's prison trust tund

pe.rty against which it was filed; or

Prosectlve relief granted in conditions of account.

"(3) the clalmant testifies fa.lsely or other- conflnement cases may be terminated on the Requires prisoners seeking to me in rorma

wise knowingly presents false evidence or in- motion of either party unless the court flnds, pauperis to pay, in installments, the tun

formation to the court.".

based on the record, that the relief remains amount of filing fees, unless the prisoner has

(b) TEcHNICAL AKENDMENT.-The analysis necessary to correct a current. ongoing vio- absolutely no assets.

!or chapter 123 or title 28, United States lation of a federal right, and that the relief Provides for appointed counsel ror indigent

Code, is amended by inserting after the item extends no further than necessary, 1s nar- in forma pauperis litigants, and requires the

relating to section 1931 the following:

rowly drawn, and is the least intrusive court to dismiss a suit· filed in rorma

"1932. Revocation or earned release credit.".

(C) AMENDMENT OF SECTION 3624 OF TITLE

18.-Section 3624(1>) of title 18, United States

Code, is amended-

(1) in p&r&graph (l}-

(A) by striking the flrst sentence;

(B) in the second sentence-

(!) by striking "A prisoner" and inserting

"Subject to para.graph (2), a prisoner";

(11) by striking "for a crime of violence.";

and

(111) by striking "such";

(C) in the third sentence, by striking "If

the Bureau" and inserting "Subject to para-

graph (2), 1f the Bureau";

(D) by striking the fourth sentence and in-

serting the following: "In awarding credit

under thi8 section. the Bureau sha.11 consider

whether the prisoner. during the relevant pe-

riod, b.a.s earned. or 1s making 11&.tisfactory

progress toward earning, a high school di-

ploma or an equiva.lent degree.": and

(E) in the sixth sentence, by striking

"Credit !or the la.st" and inserting "Subject

to paragraph (2). credit for the la.st"; and

(2) by amending paragraph (2) to read as

follows:

"(2) Notwithstanding any other law, credit

awarded under this subsection after the date

of enactment of the Prison Litigation Re-

form Act shall vest.on the date the prisoner

is relea.sed from custody.".

·

PRISON LITIGATION REFORM ACT OF 1995-
SECTION SUMMARY
Section 1: Short Title: Entitles the Act as the "Prison Litigation Reform Act of 1995." Section 2: Appropriate Remedies for Prison Conditions: This section limits the remedies available to federal courts in suits challenging conditions of confinement and defines the procedures for seeking, enforcing, and terminating .remedia.l relief In these cases. Highlights include appointment of a special 3-judge panel to consider any order that would impose a population cap on a prison or ja!l. Prospective relief in prison conditions ca.ses would not be allowed to extend any further than necessary to correct the violation of a federa.l right of an !dent!fiable

means to correct the violation or the right. pauperis if the a.llega.tion or poverty 1a un-

Federal court approval of consent deGrees true, or if the suit is frivolous or mal1cious.

would be subject to the same lim1tations. Requires payment .of coats by 1lll811~

Private settlements and remedies under prisoner litigants in the same manner as ru-

state law would be unaffected.

ing fees. 1f the judgrrient against the prlsoner

The court would be required to rule includes costs.

promptly on any motion to modify or termi- Prohibits, except in narrow circumstances,

nate prospective relief. After 30 days, an the flUng of an in rorma pa.uperis suit by a

automatic stay on. the prospective relief prisoner, who; on at least 3 prior occas1ons,

r . would apply daring the pendency·or the mo-
tion. Courts would be authorited to employ an
impart!&! special master !or the preparation or proposed flndings or fact in the remedial phase of complex prison conditions cases. The special master would be appointed from

has brought a suit that was dismissed because it was frivolous. m&licious. or !ailed to state a claim upon which relief could be granted.
Section 5: Judicial Screening: Requires judicial pre-screening or prisoner
suits a.gainst government entities or employ-

lists submitted by both parties, and would be compensated at a rate no higher than that

ees; requires dismissal or suit.a which fail to state a claim upon which relief can be grant-

for federal court-appointed COU118el. The appointment would be reviewed every 6

ed, or which seek monetary damages from an immune defendant.

months, and would lapse at the termination Section 6: Federal Tort Claims:·

of the prospective relief. The special mas- Limits prisoner suits a.ga!nst the federal

ter's flndings would be required to be on the government for mental or emotional injury

record, and no ex pa.rte flndings or commu- · under the Federal Tort Claims Act to in-

nications would be permitted. Section 3: Amendments to Civil Rights of
Institutionalized Persons Act (CRIPA): · Subsections (a) through (c): Technical
amendments concerning references to the Attorney General.
Subsection (d): Suits by Prisoners. This subsection rewrites Section 7 of
CRIPA (42 U.S.C. 1997e), which ls currently
limited to provisions related to administra-
tive remedies in connection with inmate
lawsuits. to establish broader standards to
govern suits filed by prisoners. Requires Inmates' administrative remedies

stances where the plaintiff shows physical injury as well.
Section 7: Earned Release Credit or Good Time Credit Revocation:
Reforms provisions governing the awarding of "good time" credit in the federal prison system.
Subsections (a) and (b): Permits a federal
court to order the revocation of a federal prisoner's good time credit as a sanction for
the filing of malicious or harassing claims,
or for the knowing presentation of false evidence to the court.

be exhausted prior to the filing of a suit In federal court; removes requirement that state administrative remedies be certifled by the Attorney General of the United States. Retains provision of current law stating that

Subsection (c): Revises present "good time" statute.
Requires exemplary adherence to prison
rules by all prisoners in order to qualify for
good time credit and permits Bureau of Pris-

the absence of administrative remedies by Itself does not provide the Attorney General
with grounds to bring or intervene in a suit against a state or local prison.
Permits the court to dismiss, without

ons to award partial credit at its option. Provides that progress toward. a high
school ~uivalency degree should be a factor for consideration in awarding good time credit.

hearing, inmate suits that are frivolous or
malicious. Limits att.Qrney's fees that may be award-

Provides that future awards of good time credit will not vest prior to the prisoner's actual release date. Returns to the standard

ed to successful inmate plaintlffs. Fees must that applied prior to the enactment of the

be directly and reasonably incurred in prov- Sentencing Reform Act of 1986.

plaintiff. Federal courts would have to en- ing an actual violation of a plaintiff's rights,

sure that the relief is narrowly drawn and and would be based on an hourly rate no

NATIONAL ASSOCIATION OF

that it Is the least intrusive means of cor- higher than thli.tr-for other federal court ap-

ATI'ORNEYS GENERAL,

recting the violation, giving substantial

weight to any adverse impact the relief

might have on public safety.

·

Preliminary injunctive relief would expire

pointed counsel. Also requires that up to 25%
of a plaintiff's monetary judgement be applied towards attorney's fees.
Limits prisoner suits in federal court for

Washington, DC, September 19, 1995.
Re Frivolous Inmate Litigation: Proposed Amendment to the Commerce, Justice, State Appropriations Bill.·

after 90 days, unless made flna.l before ·that mental or emotional injury to Instances Hon. BOB DoLE,

date.

.

where the plaintiff shows physical Injury as Senate Majority Leader, U.S. Senate, Washing-

No prison population cap could be imposed well.

ton, DC.

unless:

Provides that in civil suits brought by a DEAR SENATOR DoLE: We write on behalf of

(a) the .court had previously entered an prisoner, any pretrial proceedings in which the Inmate Litigation Task Force of the Na-

order for a less intrusive remedy that, after the prisoner must or may participate may be tional Association of Attorneys General .to

sufficient time for Implementation, failed to conducted at the prison or jail, by tele- express our strong support !or the Prison

correct the violation of the federal right; and conference, or by vldeoconference whenever Litigation Reform Act, which we understand

(b) a 3-judge panel finds by clear and con- practicable.

you intend to offer as an amendment to the

vincing evidence that crowding is the pri- Permits the defeRdant in a prisoner-initi- Appropriations Bill for Commerce, Justice.

mary cause of the violation and no other re- ated suit to waive reply without default, un- State and Related Agencies. As you know.

lief will remedy it, and finds by a preponder- less the reply is required by the court.

the issue of ftlvolous inmate litigation has

ance of the evidence that crowding b.a.s de- Subsections (e) and (0: Technical amend- been a major priority of this Association ·for

prived an identifiable plaintiff of an essen- ments concerning references to the Attorney a number of years. Although· a number ·Of

tial human need.

General.

states-including our own-have enacted

Case: 1:20-cv-02134 Document #: 26-4 Filed: 04/06/20 Page 8 of 9 PageID #:272

814418

CONGRESSIONAL RECORD-SENATE

September 27, 1995

1te legislation to address this Issue, the dated population ca.pa. Nea.rly every was even -allowed to hire a chauffeur,

.i.tes alone cannot solve this problem because the vast majority or these suits are brought In federal courts under federal laws. We thank you for recognizing the Impor-
tance or federal legislation to curb the epidemic of frivolous inmate litigation that is plaguing this country.

day we hea.r of vicious crimes committed by individuals who should have been locked up. Not all of these trage-
dies are the result of court-ordered population caps, of course, but such caps are a pa.rt of the problem. While

a.t taxpayers' expense, bees.use he said he had a bad back.
The Prison Litigation Reform Act,
introduced as an amendment to the Commerce/Justice/State appropriations bill, requires the Federal judiciary, not

Although numbers are not available for all prison conditions that actually violate the States, to foot the bill for special

of the states, 33 states have estimated that together inmate civil rights BUlts cost them at least $54.5 million annually. Extrapolating this figure to all 50 states, we estimate that inmate civil rights suits cost states at least S81.3 million per year. Experience at both the federal and state level suggests that, while
all or these cases are not rrtvolous, more than 95 percent or inmate civil rights suits

the Constitution should not be allowed to persist, I believe that the courts have gone too fa.r in micromanaging our Nation's prisons.
Our legislation also addresses the flood of rrtvolous lawsuits brought by inmates. In 1994, over 39,000 lawsuits were filed by inmates in Federal

masters in prison litigation cases. Last July the Arizona legislature -and Governor Symington cut off funds to special masters. It's time we take the Arizona model to the rest of the States.
The amendment also addresses prison litigation reform. Many people think of prison inmates as spending their free

are dismissed without the inmate receiving courts, a staggering 15 percent increase time in the weight room or the tele-

anything. Although occasional meritorious claims absorb state resources, nonetheleBB, we believe the vast majority or the $81.3 million figure is attributable to the non-meritorious cases.
We have not had an opportunity to discuss the specifics or the amendment with. every

over the number filed the previous yea.r. The vast majority of these suits are completely without merit. Indeed, roughly 94.7 percent a.re dismissed before the pretrial phase, and only a scant 3.1 percent have enough validity

vision lounge. But the most crowded place in today's prisons may be the law library. Federal prison lawsuits have risen from 2,000 in 1970 to 39,000 in 1994. In the words of the Third Circuit Court of Appeals, suing has bees.use, rec-

Attorney General, however, we are confident to reach triaj. In my State of Utah, 297 rea.tional activity for long-term resi-

that they would concur In our view that this inmate suits were filed in Federal dents of our prisons.

amendment will take us a long way toward curing the vexatious and expensive problem or frivolous inmate lawsuits. Thank you again for championing this important issue, along with Senators Hatch. Kyl, Reid and others, as it is a top priority for virtually every Attorney General. Your leadership on

courts during 1994, which accounted for Today's system seems to encourage 22 percent of all Federal civil cases prisoners to me with impunity. After filed in Utah last yea.r. I should empha- all, it's free. And a courtroom is cersize that these numbers do not include .ta.inly a. more hospitable place to spend habeas corpus petitions or other ca.sea an afternoon than a prison cell. Prischallenging the inmate's conviction or oners me free lawsuits in response to

this issue and your continued commitment sentence. The crushing burden of these almost any perceived slight or incon-

to this common sense legal rerorm is very frivolous suits makes it difficult for venience-being served chunky instead

important to us and our colleagues. Sincerely,

courts to consider meritorious claims. of creamy peanut butter, for instance, In one frivolous case in Utah, an in- or being denied the use of a. Gameboy

FRANKIE SUE DEL PAPA,

Attorney Genercil of

Nevada.,

Cha.Ir,

NAAG Inmate Liti-

gation Tcuk Force.

DANIELE. LUNGREN,

mate sued demanding tha.t he be issued video game-a· case which prompted a
Reebok or L.A. Gea.r brand shoes in- lawsuit in my home State of Arizona.. stead of the Converse brand being is- These prisoners a.re victimizing soci-
sued. In another case, a.n inmate delib- ety twice-first when they commit tlie era.tely flooded his cell, and then sued . crime tha.t put them in prison, and see-

Attorney General of

the officers who cleaned up the mess ond when they waste our hard-ea.med

California, Chair,

bees.use they got his Pinochle cards tax dollars while cases based on serioua

N AAG Criminal Lato Committee,

wet.

grievances languish on the court ca.l-

it is time to stop this ridiculous endar.

_

GRANT WOODS,
Attorney General of Arizona, Vice-Chair, NAAG Inmate Litigation Tcuk Force,
JEREMIAH W. NIXON,

waste of the taxpayers' money. The huge costs imposed on· State governments to defend against these meritless suits is another kind of crime committed aga.inst law-abiding citi-

In Arizona., Attorney General Grant Woods, who is here with us today, used to spend well over $1 million a yea.r processing and defending aga.inst !rivolous inmate lawsuits". But Grant suc-

Attorney General of

zens.

.

cessfully championed a reform bill,

Missouri,

Vtce-

Mr. President, this legisla.tion enjoys which went into effect la.st yea.r, a.nd

Chair, NA.AG Criminal Lato Committee.

broad, bipartisan support from State the number of prison lawsuits was cut attorneys general a.cross the Nation. in half. Arizona prisoners still ha.ve the

Mr. HATCH. Mr. President, I am We believe with them that it is time to right to seek legal redress for meritori-

pleased to be joined by the majority wrest control of our prisons from the ous claims, but the time and money

leader and Sena.tors KYL, ABRAHAM, 1awyers and the inmates and return once spent defending frivoloua suits is

REID, THURMOND, SPECTER, HUTCHISON, that control to .~ompetent atlministra- now used to settle legitimate claims in

D'AMATO, SANTORUM, and GRAMM in in- tors appointed to look out for society's a timely ma.nner.

troducing the Prison Litigation Re- interests as well as the legitimate But the States alone ca.nnot solve

form Act of 1995. This landmark legis- needs of prisoners_ I urge my col- this problem. The vast majority of rrtv-

lation will help bring relief to a civil lea.gues to support this-bill, and look -olous suits are brought in Federal

justice system overburdened by rrtvo- forward to securing its quick passage courts under Federal laws-which· is

lous prisoner lawsuits. Ja.ilhoiisa law- by the Senate.

why I introduced the Prison Litigation

yers with little else to do are tying our Mr. KYL. Mr. President, special ma.s- Reform Act of 1995 la.st ma.y with Sen-

courts in knots with an endless flood of ters, who a.re supposed to assist judges a.tor& DoLE and HATCH. We a.re incor-

rrtvolous litigation.

as fa.ctflnders in complex litigation, pora.ting tha.t legislation into the Com-

Our legislation will also help restore have all too often been improperly used merce/Justice/Sta.te amendment.

balance to prison conditions litigation in prison condition cases. In Arizona., Federal prisoners are churning out

and will ensure tha.t Federal court or- special masters have micromanaged lawsuits VTith no regard to this cost to

- ders are limited to remedying a.ctua.l the department of corrections, and the taxpayers or their legal merit. We

violations of prisoners' rights, not let- have performed all manner of services can no longer ignore this abuse· of our

ting prisoners out of ja.il. It is past in behalf of convicted felons, from court system and ta.Xpayers' funds.

time to sla.m shut the revolving door maintaining lavish law-libraries to dis- With the support of attorneys general

on the prison gate and to put the key tributing up·to 750 to'hs of Christmas around the country, I am confident

sa.fely out of i-ea.ch of overzealous Fed- packages ea.ch yea.r. Special masters that we will 'see real reform on this

eral courts.·

appointed to oversee prison litigation issue.

As of January 1994, 24 corrections have cost Arizona taxpayers more tha.n Mr. ABRAHAM. Mr. President, the

agencies reported having _court-man- $320,000 since 1992. One special master legislation we are introducing today

Case: 1:20-cv-02134 Document #: 26-4 Filed: 04/06/20 Page 9 of 9 PageID #:273

. > ~~-

;\...

-~.

' '

'

.,.. . i. "'

...

•.
,~

·Beptember 27, 1995

· CONGRESSIONAJ:::RECORD-· SENATE

will play a critical role in restoring ously, they should not be tortured or

8.896

public"'confidence in government's abil- ·treated cruelly. At the same time, they At the request of Mr. · CHAFEE, the

ity to protect the public safety. More- also should not have all the rights and name of the Senator from North Da-

over, it will accomplish this important privileges the rest of us enjoy. Rather, kota [Mr. DoRGAN] was added as a co-

purpose not by spending more taxpayer their lives should, on the whole, be de- sponsor of S. 896, a bill to amend title

money but by saving it.

scribable by the old concept known as XIX of the Social Security Act to make

I would like to focus my remarks on "hard time."

certain technical corrections relating

the provisions addressing the proper By interfering with the fulfillment of to physicians' services, and for other

scope of court-ordered remedies in pris- this punitive function, the courts are purposes.

on conditions cases.

effectively seriously undermining the

S.949

In many jurisdictions, including my entire criminal justice system. The At the request of Mr. GRAHAM, the

own State of Michigan, judicial orders legislation we are introducing today names of the Senator from Kansas [Mr.

entered under Federal law have effec- will return sanity and State control to DoLE], the Senator ·from Louisiana

tively turned control of the prison sys- our prison systems.

[Mr. JOHNSTON], the Senator from Illi-

tem away from elected officials ac- Our bill forbids courts from entering nois [Ms. MOSELEY-BRAUN], and the

countable to the taxpayer, and over to orders for prospective relief (such as Senator from Minnesota [Mr.

the courts. The courts, in turn, raise regulating food temperatures) unless WELLSTONE] ·were added as cosponsors

the costs of run!ling prisons far beyond ·the order is necessary to correct viola- of S. 949, a bill to require the Secretary

what is necessary. In the process, they tions of individual plaintiffs' Federal of the Treasury to mint coins in com-

also undermine the legitimacy and pu- rights. It also requires that the relief memoration of the 200th anniversary of

nitive a.I1d deterrent effect of prison be narrowly drawn and(be the least in- the death of George Washington.

sentences.

'

.

Let me tell you a little bit about how

this works.

Under a series of judicial decrees re-

sulting from Justice Department suits

against the Michigan Department of

Corrections, the ·Federal courts now

monitor our State prisons to deter-

mine.

trusive means of protecting the Federal rights. And it directs courts to give substantial weight to any adverse impact on public safety or the operation of the crimin8.l justice system caused by the relief.
It also provides that any party can
seek to have a court decree ended after 2 years, and that the court will order it

s. 9S3 -
At the request of Mr. CHAFEE, the name of the Senator from North Dakota [Mr. CONRAD] was added as a cosponsor of S. 953, a bill to require the Secretary of the Treasury to mint · coins in commemoration of black Revolutionary War patriots.

First, how warm the food is; second, how bright the lights are; third, whether there are electrical outlets in each cell; fourth, whether windows are inspected and up to code; fifth, whether prisoners' hair is cut only by licensed
barbers; and sixth, and whether air and water temperatures are comfortable.
This would be bad enough if a court had ever found that Michigan's prison system Yfas at some point in violation

ended unless there is still a constitutional violation that needs to be corrected.
As a result, no longer will prison administration be turned over to Federal judges for the indefinite future for the slightest reason. Instead, the States will be able to run prisons as they see flt unless there is a constitutional violation, in which case a narrowly tailored order to correct the violation

S.956
At the request of Mr. HATCH, the D.ame of the Senator from VeI'ilont [Mr. JEFFORDS] was added as a cosponsor of S. 955, a bill to clarify the scope of coverage and amount of payment under the medicare program of items and services associated with the use in the furnishing of inpatient hospital services of certain medical deVices approved for investigational use.

of the Constitution, or if conditions may be entered.

s. 1006

there had been inhumane. But that is This is a balanced bill that allows the At the request of Mr. PRYOR, the

not the case.

courts to step in where they are need- name of the Senator from Wyoming

To the contrary, nearly all of Michi- ed, but puts an end to unnecessary ju- [Mr. SIMPSON] was added as a cosponsor

gan's facilities are fully accredited by dicial intervention and microman- of S. 1006, a bill to amend the Internal

the American Corrections Association. agement. I thank all my colleagues for Revenue Code of 1986 to simplify the

We have what may be the most exten- their interest in this matter and hope pension laws, and for other purposes.

sive training program in the Nation for we will be able to get something en-

s. 1052

corrections officers. Our rate of prison acted soon.

At the request of Mr. HATCH, the

violence is among the lowest of any

name of the Senator from New Hamp-

State. And we spend an average of

shire [Mr. GREGG] was added as a co-

$4,000 a year per prisoner for health

ADDITIONAL COSPONSORS

sponsor of S. 1052, a bill to amend the

care, including nearly $1,700 for mental
health services. Rather, the judicial intervention is
the result of a consent decree that Michigan entered into in 1982-13 years ager-that was supposed to end a law-
suit filed at the same time. Instead, the decree has been a source of continuous litigation and intervention by the court into the minutia of prison oper-
ations. I think this is all wrong. People de-
serve to keep their tax dollars or have them spent on projects they approve.

s. 7'73
At the request of Mrs. KASSEBAUM, the name of the Senator from Alaska [Mr. STEVENS] was added as a cosponsor of S. 773, a bill to amend the Federal Food, Drug, and Cosmetic Act to provide for improvements in the process of approving and using animal drugs, and for other purposes.
s. 881
At the request of Mr. PRYOR, the names of the Senator from Vermont [Mr. LEAHY] and the Senator from Mis-

Internal Revenue Code of 1986 to make permanent the credit for clinical testing expenses for certain drugs for rare diseases or conditions and to provide for carryovers and carrybacks of unused credits.
s. 1200
At the request of Ms. SNOWE, the name of the Senator from Virginia [Mr. RoBB] was added as a cosponsor of S. 1200, a bill to establish and implement efforts to eliminate restrictions on the enclaved people of Cyprus.

They deserve better than to have their sissippi [Mr. LoTT] were added as co-

s. 1219

money spent, on keeping prisoners in · sponsors of S. 881, a bill to amend the At the request of Mr. :FEiNoor.D, the

conditions some Federal judge feels are Internal Revenue Code of 1986 to clarify name of the Senator from New Mexico desirable, although not required by any provisions relating to church pension [Mr. BINGAMAN] was added as a cosponprovision of the Constitution or any benefit plans, to modify certain provi- sor of S .. 1219, a bill to reform the fi-

law. And they certainly don't need it sions relating to participants in such nancing of Federal elections, and for spent on defending against endless pris- plans, to reduce the complexity of and other purposes.

oner lawsuits.

to bring workable consistency. to. the

AMENDMENT NO. 2784 :

Meanwhile, criminals, while they applicable rules, to promote retirement At the request of Mr. KERRY his

must be accorded. their constitutional savings and benefits, anq for other pur- name was added as .a -cosponsor of

rights, deserve to be punished. Obvic poses.

amendment No. 2784 propose~ to· H.R.

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EXHIBIT D

Case: 1:20-cv-02134 DocuBmereknotw#sk:y2, 6Da-5nieFlliele4d/4:/20042/006/20 Page 2 of 26 PageID #:275
For Educational Use Only
ANTI-INCARCERATIVE REMEDIES FOR ILLEGAL..., 6 U. Miami Race &...
6 U. Miami Race & Soc. Just. L. Rev. 1 University of Miami Race & Social Justice Law Review Summer, 2016 Article Margo Schlanger a1 d1 Copyright © 2016 by Margo Schlanger

ANTI-INCARCERATIVE REMEDIES FOR ILLEGAL CONDITIONS OF CONFINEMENT

INTRODUCTION

1

I. POPULATION CAPS OVER TIME

6

II. SOME PIONEERING ANTI-INCARCERATIVE ORDERS

9

A. Procedural (planning) anti-incarcerative orders

10

B. Substantive anti-incarcerative orders

14

III. SOLITARY CONFINEMENT ORDERS

17

A. Court orders or settlement provisions establishing alternatives to solitary confinement

21

B. Court orders or provisions narrowing/slowing the path into solitary confinement

22

C. Court orders or settlement provisions broadening/speeding the path out of solitary confinement

23

IV. OLMSTEAD ORDERS (MODERN DEINSTITUTIONALIZATION)

23

V. THE PLRA'S PRISONER RELEASE ORDER PROVISION

25

CONCLUSION

29

INTRODUCTION

Opposition to mass incarceration has entered the mainstream. 1 But except in a few states, 2 mass decarceration has not, so far, followed: By *2 the end of 2014 (the last data available), nationwide prison population had shrunk only 3% off its (2009) peak. Jail population, similarly, was down just 5% from its (2008) peak. All told, our current incarceration rate--7 per 1,000 population--is the same as in 2002, and four times the level in 1970, when American incarceration rates began their rise. 3

Our bloated prisoner population includes many groups of prisoners who are especially likely to face grievous harm in jail and prison. In particular, well over half of American prisoners have symptoms of mental illness. And the most recent thorough analysis found that an astounding 15% of state prisoners and 24% of jail inmates “reported symptoms that met the criteria for a psychotic disorder.” 4 In addition, 4 to 10% prisoners have a serious intellectual disability. 5 Prisoners with *3 mental disabilities face grave difficulties in prison and jail; they can have trouble adapting to new requirements and understanding what is expected of them, getting along with others, and following institutional rules. In the absence of treatment and habilitation, they are more likely both to be victimized and to commit both minor and major misconduct. 6 Prisoners with mental disabilities are not alone; there are other groups of prisoners who are similarly vulnerable-- prisoners with serious chronic illnesses 7 and physical disabilities, 8 gay and transgender prisoners, 9 juveniles in adult facilities, 10 elderly prisoners, 11 minor offenders, 12 and so on. Each group faces higher-than-usual probabilities of victimization and harm behind bars.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

1

Case: 1:20-cv-02134 DocuBmereknotw#sk:y2, 6Da-5nieFlliele4d/4:/20042/006/20 Page 3 of 26 PageID #:276
For Educational Use Only
ANTI-INCARCERATIVE REMEDIES FOR ILLEGAL..., 6 U. Miami Race &... In this symposium essay, I argue that when such difficulties are manifest, and create conditions of confinement that are illegal under the Eighth Amendment, Americans with Disabilities Act, or other source of law, plaintiffs should seek, and courts should grant, court-enforceable remedies diverting prisoners away from incarceration, in order to keep vulnerable populations out of jail and prison. What's novel about this proposal is not the diversionary remedies themselves, but the connection of such programs to conditions of *4 confinement litigation. Diversionary programs are, in fact, increasingly familiar. Reformers in many states have implemented many different diversion methods. Some programs address prisoners with mental illness or intellectual disabilities in particular; 13 others focus on other populations-- substance abusers, minor misdemeanant arrestees, veterans, etc. They include:
• Crisis intervention teams of officers linked to community mental health services and trained and supported in helping individuals with mental illness. 14
• Deescalation techniques that avoid unnecessary arrests. 15
• Substitution of citations for misdemeanor arrests.
• Diversion--sometimes by use of mental health courts that send offenders with mental illness to intensive treatment and supervision, but not jail or prison.
• Wraparound services that provide “treatment, rehabilitation, supportive services, and practical help” for people with severe and persistent mental illness. 16
And prompted by jail and prison crowding, states, cities, and counties have likewise developed a menu of other reforms, less linked to particular populations, that seek to decrease incarceration, 17 including:
• Sentencing reform (replacing mandatory minimum sentences, limiting “three-strikes” coverage, reducing recommended sentences, etc.).
• Shifts in policing enforcement priorities. 18
*5 • Bail reform, including “walk-through” arrangements under which arrestees are immediately released on bond.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

2

Case: 1:20-cv-02134 DocuBmereknotw#sk:y2, 6Da-5nieFlliele4d/4:/20042/006/20 Page 4 of 26 PageID #:277
For Educational Use Only
ANTI-INCARCERATIVE REMEDIES FOR ILLEGAL..., 6 U. Miami Race &...
• Parole reforms--improving risk-assessment processes, timeliness of hearings, and the tailoring of parole requirements to criminal histories. 19
• Make earned and good-conduct reductions steeper, expand rehabilitation programs that offer sentencing credits. 20
But only rarely have such initiatives--which I label “anti-incarcerative”--been imposed or negotiated as court-enforceable solutions for jail or prisons conditions problems. And when they have, it's mostly been to facilitate compliance with a courtordered population cap. What I'm urging is a new generation of anti-incarcerative remedies in conditions lawsuits, unconnected to a population order, whose purpose is to keep vulnerable would-be prisoners out of harm's way by promoting workable alternatives to incarceration.
This essay proceeds as follows. In Part I, I describe the history of population caps in conditions of confinement lawsuits. These kinds of direct population limits--still available and valuable, in the right case--constituted a first generation of decarcerative conditions orders. They are important both historically and because they demonstrate that ordinary remedial law allows court orders that keep prisoners out of prison in order to avoid constitutional problems inside. I next highlight in Part II a few pioneering court orders that have specified anti-incarcerative remedies, hooked to alleged or proven unconstitutional conditions caused by crowding. Like the population caps, these orders have aimed explicitly at population reduction.
I move in Parts III and IV to two models for anti-incarcerative orders that are not premised on crowding. In Part III, I examine recent remedies addressing unconstitutional solitary confinement. Many of these recent orders have not simply barred prisons from imposing the solitary conditions plaintiffs allege are unconstitutional. Rather, they establish and regulate alternatives to solitary confinement. A final useful model, *6 which I examine in Part IV, can be found in ongoing deinstitutionalization remedies in cases, on the model of Olmstead v. L.C, 21 that enforce the Americans with Disabilities Act, which have focused more on provision of services in the community than on institutional exclusions. The orders in both Parts III and IV support my contention that the ordinary law of remedies allows entry of orders keeping prisoners out of a situation in which they would face unconstitutional harm.
Finally, in Part V, I explain why the Prison Litigation Reform Act's constraints on “prisoner release orders” should not obstruct a new generation of anti-incarcerative orders. The short answer is that--like solitary confinement and Olmstead orders--the anti-incarcerative orders I am advocating should not be considered “prisoner release orders” because they are not “reducing or limiting the prison population,” in the way that Congress intended the PLRA to regulate.
Our national infatuation with incarceration has led to the damaging imprisonment of many vulnerable people in jails and prisons ill-equipped to house them safely--people with mental and physical disabilities, juveniles, the elderly, minor offenders, and others. When a particular facility or system is unable to provide these prisoners with lawful conditions of confinement, plaintiffs should seek, and federal courts should grant, anti-incarcerative orders that facilitate alternatives. 22
I. POPULATION CAPS OVER TIME

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In the first 25 years of jail and prison conditions-of-confinement litigation, 23 population caps were commonplace court-ordered remedies *7 for unconstitutional conditions of confinement. 24 When crowding created or exacerbated unsafe conditions behind bars, these orders attacked the problem by specifying the number of prisoners allowed to be housed, or setting perprisoner space requirements (which works out to the same thing, absent construction), or designating a permissible percentage of some measure of capacity. They established various kinds of release mechanisms and procedures, to be used as needed to meet the caps.
But federal court-ordered population caps came under increasing attack. The Supreme Court was skeptical nearly from the start, emphasizing in 1979 (in Bell v. Wolfish) and again in 1981 (in Rhodes v. Chapman) that crowding alone--in particular, double celling (housing two prisoners in a cell meant for one by substituting a bunk bed for the planned single bed)--did not constitute cruel and unusual punishment. 25 The Court emphasized that “deprivations of essential food, medical care or sanitation,” “increase[d] violence,” or other “intolerable” conditions were, rather, what the Constitution forbids. 26 Crowding was unconstitutional, the Court insisted, only if it caused these kinds of conditions. (The Court emphasized the point in Wilson v. Seiter, holding that plaintiffs in Eighth Amendment challenges to prison conditions must identify particular “deprivation[s] of ... identifiable human need[s] such as food, warmth, or exercise”; “[n]othing so amorphous as ‘overall conditions' can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.” 27 )
Bell and Rhodes challenged but did not end population orders; caps continued to be entered in conditions of confinement cases addressing health, safety, sanitation, nutrition, and the like, for pretrial detainees and convicted offenders in jails and prisons. The theory was simple: when overpopulation of a prison stressed its capacity to safely house inmates, a *8 population cap was one appropriate tool to restore constitutional conditions of confinement. On that theory, court-ordered caps governed Louisiana's prison system from 1983 to 1996; Florida's from 1977 to 1992, and Texas's from 1981 to 2001. 28 Many more such orders were operative in jail systems and individual prisons across the nation. 29
Defendants--sheriffs, wardens, corrections heads--frequently agreed to population orders, which empowered them in varied ways in their particular political milieus. But many law enforcement actors objected strenuously to the caps. When prosecutors in Philadelphia argued that the cap on Philadelphia's jail system led to thousands of releases and caused thousands of new crimes, that cap, in Harris v. City of Philadelphia, became the cause célèbre 30 for the sponsors of the Prison Litigation Reform Act (PLRA). 31 The PLRA, passed in 1996 as part of the Newt Gingrich Contract with America, 32 imposed numerous high substantive and procedural hurdles to the entry of new population caps. 33 The new statutory obstacles to population caps are not, it should *9 be emphasized, insurmountable. 34 Even after the PLRA's enactment, population caps have been entered in both jail and prison cases, in settlements, 35 orders contested by intervenors, 36 and litigated orders (including the statewide California order upheld on appeal to the Supreme Court). 37 But the incidence of caps has declined precipitously. 38
II. SOME PIONEERING ANTI-INCARCERATIVE ORDERS
In a few conditions cases addressing crowding, court orders have mandated--in addition to or instead of population caps--both processes for developing anti-incarcerative remedies and substantive anti-incarcerative terms. 39 In this part, I develop insights stemming from five cases that challenged conditions of confinement and led to anti-incarcerative remedies. They are Carruthers v. Israel, a case filed in 1976 that addresses conditions at the Broward County Jail, in Fort *10 Lauderdale, Florida; 40 Carty v. Mapp, 41 filed in 1994 and still reforming the Virgin Islands' Criminal Justice Complex, in St. Thomas; McClendon v. City of Albuquerque, 42 filed in 1995 against both city and county officials responsible for conditions in Albuquerque's jail; Maynor

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v. Morgan County, a case filed in 2001 about conditions at a small jail in Decatur, Alabama; 43 and the consolidated cases of Plata v. Brown and Coleman v. Brown, 44 the California prison litigations whose population cap the Supreme Court approved in 2011. 45
A. Procedural (planning) anti-incarcerative orders
The most common anti-incarcerative remedies are procedural and indirect--courts require defendants to convene multiple criminal justice stakeholders and to develop a plan (or, even less muscular, to try to develop a plan) that will decrease the population in the challenged facility. For example, orders entered in 1994 and 2013 in Carty, the Virgin Islands jail case, required the defendants to “actively manage their prisoner population, including seeking pretrial detention alternatives and reduced bails.” 46 Similarly, defendants were instructed in the latter order to “develop[] and implement [] memoranda of understanding to ensure timely transfers of seriously mentally ill prisoners in need of inpatient or intermediate care, or those in need of acute stabilization, to an appropriate hospital or mental health facility.” 47 (More definitely, the *11 order required the defendants-which included the governmental entity for which the prosecutors worked to “offer [] sentences of time served for prisoners charged with misdemeanor and non-violent offenses.” 48 )
More formally, in Maynor, the comprehensive challenge to conditions of confinement in an Alabama jail in Decatur Alabama, a settlement agreement reached after the Court granted a preliminary injunction included the following requirement of an antiincarceration “task force”:
Recognizing that overcrowding at the Jail affects all aspects of Jail operations, the County Defendants agree to organize a local task force to identify and review alternative programs and methods for reducing the Jail population and to make recommendations regarding the implementation of such programs and methods. The task force shall include, but is not limited to the following officers, if they agree to serve: the sheriff; one or more members of the County Commission; the presiding circuit court judge; the district attorney; the county attorney; a criminal defense attorney; a representative from probation; and at least two community representatives. The task force shall diligently investigate and explore alternative methods for reducing the Jail population, including the creation of a Community Corrections and Punishment Program, as provided for in § 15-18-170, et seq., Code of Alabama, 1975; the expansion and development of one or more work release programs as now or hereafter authorized by law; the diversion of inmates to other institutions with available bed space; the release of inmates on their personal recognizance; and other alternative means of securing their attendance through such other means and methods as may be available. In reviewing the possible alternatives for preventing overcrowding at the Jail, the task force will consult with the Alabama Association of Community Corrections. County Defendants will report to Plaintiffs' counsel each September 15 and March 15, and through other regular communications, regarding local efforts by the task force and others to prevent overcrowding at the Jail. 49
This was an entirely procedural order: it encouraged and facilitated, rather than requiring, anti-incarcerative measures. Compliance was slow, but the task force proposed a community corrections program that finally got started five years after the settlement, in 2006, 50 and that continues to operate today. 51
*12 In a few cases, courts have brought in outside experts to assist or lead anti-incarcerative planning. For example, in the Broward County case, renewed crowding many years after initial litigation and settlement led the court in 2010 to appoint a “population management expert pursuant to Fed. R. Evid. 706,” requiring him to “identif[y] and analyze[] the County's criminal justice processes and policies that affect the population level at the Broward County jail,” “develop[] strategies and remedies to address those processes and policies so that the population level ... can be reduced without significantly affecting public

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safety,” and “identif[y] realistic options that have been successfully implemented in other jurisdictions that will reduce the need for current and future beds--especially for the pretrial felon population.” 52 The expert's most recent report, completed in 2014, recommends a series of anti-incarcerative reforms, which could reduce jail population by about 20%. They include: filing criminal charges more promptly for people in jail; 53 a supervised release program for those unable to make their very low bails; allowing release on bail for some minor offenders currently barred from pretrial release; a community-supervision reentry program; community-based treatment for inmates with alcohol and drug treatment requirements; community-based mental health services for inmates declared incompetent to stand trial; and work release for inmates nearing the end of their sentences. 54 (It does not appear that the plaintiffs are pressing to make this plan court enforceable; they have the population *13 cap already, 55 and these reforms are framed as ways to effectuate the cap, not as independent remedies. 56 )
Similarly, in the Virgin Islands case, the Court appointed an expert--the same expert, as it happens--to conduct an assessment that:
(1) analyzes the Territory's criminal justice processes and policies that affect the population level at the Criminal Justice Complex (CJC) and CJC Annex [collectively, “the Jail”],
(2) includes strategies and remedies to address those processes and policies so that the population level at the Jail can be reduced without significantly affecting public safety,
(3) includes a baseline population forecast that would advise the territory on the impact of current criminal justice trends,
(4) identifies realistic options that have been successfully implemented in other jurisdictions that will reduce the need for future beds, and
(5) assesses the existing classification and disciplinary systems at the Jail and provides technical assistance to Defendants so they can make the best use of existing bed space to safely and appropriately house the prisoner population. 57
After much litigation, the report is now underway. 58

*14 B. Substantive anti-incarcerative orders
When a federal court insists on a robust anti-incarcerative planning process, that improves the probability of a plan's development and even implementation. But occasionally, courts have gone further and imposed actual substantive anti-incarcerative remedies. The best-known example is in Plata v. Brown and Coleman v. Brown, the medical care and mental health care cases against the California prison system in which the District Court imposed, and the Supreme Court affirmed, a state-wide prison population cap of 137.5% of design capacity. 59 On remand from the Supreme Court, the state made substantial progress towards this population cap by means of shifting some prison population to jails, lessening the term of probation, and several other policy changes, together termed criminal justice “Realignment.” 60 But population remained well over the limit until the District Court imposed several anti-incarcerative measures, including allowing several groups of inmates to more quickly accrue time off their sentences, and expanding parole for non-violent offenders, and medically incapacitated and elderly prisoners. 61 Each was made a fully enforceable court order. 62
Less well known, but similarly joining a population cap 63 with anti-incarcerative orders is McClendon v. City of Albuquerque. McClendon *15 began in 1995 when inmates at the Bernalillo County Detention Center in Albuquerque filed a class action

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lawsuit alleging unconstitutional conditions of confinement caused by gross overcrowding. A subclass of inmates with mental disabilities was also declared, and separately represented. 64 In 1996, the court in McClendon entered a settlement agreement that included a procedural planning order. 65 But it also directly required the substantive anti-incarcerative remedy of civil commitment in circumstances where the defendants had sufficient authority to implement it without needing anyone else's agreement:
Defendants shall instruct UNMHSC [the University of New Mexico Health Services Center] to establish formal policies and procedures requiring the initiation of civil commitment proceedings whenever an individual diagnosed as having a mental or developmental disorder requests placement in a residential treatment or evaluation facility, assuming the court imposed conditions of confinement are consistent with such placement .... Residents shall be released for day treatment or habilitation whenever appropriate. 66
When plaintiffs sought contempt sanctions in 2001 for noncompliance with the earlier settlement, litigation again led to a combination of procedural and substantive anti-incarcerative settlement provisions. A stipulated order explained that many diversionary strategies were going untried in Albuquerque: for example, “Increased intensive mental health case management, crisis housing, and detox services, as well as a drop-in center for psycho-social rehabilitation, would reduce overcrowding at the jail.” 67 The order accordingly required *16 four different planning sessions to bring together the various official and advocacy stakeholders to develop various anti-incarcerative approaches (“how to reduce the number of incarcerated individuals at BCDC who are awaiting resolution of probation or parole violation proceedings”; “how to include persons who do not have both a permanent address and a telephone in the Community Custody Program”; “how to implement an effective jail diversion program for persons with psychiatric or developmental disabilities”; and “how to expand the program for early resolution of criminal cases” 68 ).
For each of the above plans, the cooperation of out-of-court parties was needed. By contrast, the defendants had unilateral authority with respect to policing. Accordingly, the same 2001 order included a more muscular substantive requirement, as well. The parties stipulated that:
Despite the efforts to date of the parties and the Court, 244 persons were brought into the jail by arresting officers in the month of March, 2001 and booked on petty misdemeanors, including, inter alia, shoplifting under $100, excessive sun screen material on vehicle windows, and unreasonable noise. Issuing citations for such non-violent petty offenses and using the jail's ‘walk through procedure’ for persons charged with such offenses would likely reduce unnecessary incarceration at BCDC.” 69
Accordingly, defendants agreed to entry of an order requiring them to “[p]rovide direction to law enforcement officials under the control of the City and/or the County to issue citations where appropriate and to use the ‘walk through procedures,’ rather than incarcerating individuals, where appropriate.” 70 This set of requirements was strengthened in 2002, when the City Defendants entered into another stipulated order, that: “Defendants will continue to employ all existing population management tools.” 71 Those “population management tools,” included the “[p]re-trial services walk-through for misdemeanor warrants” described in 2001. 72 Other approaches were also added. For example, “APD officers have been instructed to obtain every possible phone number from people they stop and arrest or cite and release, and to write the phone number(s) on the face of the arresting/ citing document.” 73 Subsequent litigation *17 included various similar orders; the most recent settlement, reached in March 2016, collects and augments the scattered relevant provisions and sets them out again, with a requirement that a court-appointed expert audit. 74

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In sum, while anti-incarcerative orders have been very rare, they are not unheard of. Courts have entered both procedural orders mandating informal or formal anti-incarcerative planning, and substantive orders mandating particular anti-incarcerative programs.
III. SOLITARY CONFINEMENT ORDERS
As population caps have gone from routine to rare, a new type of order regulating particular types of incarceration--and barring particular types of prisoners from it--has developed. As American incarceration rates ballooned in the 1980s and 1990s, so too did our prisons' and jails' use of solitary confinement and other forms of restrictive housing. Increasing thousands of prisoners were confined to 22 or more daily hours of in-cell lockdown, with minimal chance for social interaction, programming, or occupation. 75 Advocacy efforts to reverse this trend have been intense and longstanding, and seem finally to be approaching fruition. President Obama recently wrote an op-ed in the Washington Post describing current practices as “an affront to our common humanity,” 76 and three Supreme Court justices have inveighed against solitary confinement in recent separate writing. 77 Many corrections leaders are themselves beginning to seek change: the national association of heads of state corrections departments last year released a report that begins “Prolonged isolation of individuals in jails and prisons is a grave problem drawing national attention and concern,” and explicitly *18 “supports ongoing efforts to ... limit or end extended isolation.” 78 Litigation continues to be a key lever for reform in this area; lawsuits push for change, and both settlements and litigated orders have modeled what that change could look like. 79
Much of the solitary reform effort has followed a “special populations” strategy. The idea has been to exclude from solitary confinement--entirely, or in all but the most exceptional circumstances--prisoners particularly vulnerable to harm there. This path was marked by District Judge Thelton Henderson in Madrid v. Gomez, in 1995. In that case, Judge Henderson explained that isolated conditions “will likely inflict some degree of psychological trauma upon most inmates confined [in Pelican Bay's Special Housing Unit, or SHU] for more than brief periods.” But, he held, only for “certain categories of inmates” was the likely harm sufficiently severe to constitute a “per se violat[ion]” of the Eighth Amendment's Cruel and Unusual Punishments Clause:
those who the record demonstrates are at a particularly high risk for suffering very serious or severe injury to their mental health, including overt paranoia, psychotic breaks with reality, or massive exacerbations of existing mental illness as a result of the conditions in the SHU. Such inmates consist of the already mentally ill, as well as persons with borderline personality disorders, brain damage or mental retardation, impulse-ridden personalities, or a history of prior psychiatric problems or chronic depression. For these inmates, placing them in the SHU is the mental equivalent of putting an asthmatic in a place with little air to breathe. 80

Following Judge Henderson's approach, in case after case, plaintiffs' counsel have sought--and often won, by litigated or settled judgment--orders excluding prisoners in vulnerable categories like these from solitary confinement. 81 More recent court orders have covered not just *19 prisoners with mental illness and intellectual disabilities but other vulnerable populations: pregnant and youthful prisoners, for example. 82 (Only recently, in two settlements approved in 2016, has litigation more comprehensively narrowed the path into and widened the path out of solitary confinement. 83 )
The special population orders have included simple bans. For example, in Wisconsin, first in a 2001 contested preliminary injunction, 84 and then in a 2002 settlement, prisoners with serious mental illness were barred from the Boscobel supermax prison: “No seriously mentally ill prisoners win be sent to SMCI nor will seriously mentally ill prisoners at the facility be

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permitted to remain there.” 85 Similarly, in Mississippi, a settlement stated flatly: “After December 1, 2007, Unit 32 will not be used for long-term housing of prisoners with Severe Mental Illness, other *20 than those on Death Row.” 86 Another Mississippi settlement, dealing with a private facility, stated in 2012, “MDOC will ensure that youth are never subjected to solitary confinement.” 87 And in Indiana, following a court finding of unconstitutionality caused by the solitary confinement of prisoners with serious mental illness, a 2016 settlement provided, “no seriously mentally ill prisoners shall be placed in segregation/restrictive housing (including protective custody) if they are known to be seriously mentally ill prior to such placement.” 88
Thinking of solitary confinement units as “prisons within a prison,” these exclusion orders are analogous to the firstgeneration prison population caps described in Part I: 89 they exclude people by way of negative commands. In addition, some solitary confinement orders--including some very recent ones that benefit prisoner plaintiffs beyond particularly vulnerable populations-- take a more affirmative approach. They (1) establish or regulate housing that substitutes for solitary confinement; and they set out parameters for a variety of programs and procedures intended to (2) slow and narrow the path in, and (3) broaden and speed the path out. While these are useful interventions in their own right, I offer the details here to make an argument, by analogy, that structurally similar kinds of orders could be used to keep people with serious mental illness out of prison altogether.
Each of these approaches fits comfortably into the permissible scope of injunctive remedies in civil rights cases. Caselaw dictates that litigated injunctions--and settlements, in prison and jail cases 90 --be tied to *21 plaintiffs' injury, 91 but allows design of such remedies not just to stop unlawful conduct and repair the damage done 92 but to prevent further violations going forward 93 (as well as to facilitate oversight and enforcement of the more substantive terms 94 ). Anti-incarcerative orders prevent further violations going forward.
A. Court orders or settlement provisions establishing alternatives to solitary confinement
Recent court orders in cases challenging the conditions of confinement in solitary have led to variously-named alternatives-secure housing in which prisoners receive therapeutic programming and substantial out-of-cell time. For example, a 2016 court order decrees Indiana's use of “mental health units” with additional therapeutic programming, group therapy, and other out-ofcell opportunities. 95 *22 Recent landmark cases have extended this approach beyond prisoners with mental illness: a 2015 settlement in New York requires the creation of residential substance-abuse programs as “SHU-alternative[s] “for ... inmates selected ... who are serving confinement sanctions for nonviolent substance abuse-related misbehavior,” and other alternatives for youthful prisoners and those who have intellectual disabilities. 96 And in California, a 2016 consent decree requires use of a “restrictive custody general population housing unit” for members of gangs, as well as others. 97
B. Court orders or provisions narrowing/slowing the path into solitary confinement
Court orders in solitary confinement cases use a variety of techniques to narrow or slow prisoners' path into solitary confinement. They implement mental health treatment, to avoid the need. In the Virgin Islands, for example, a 2012 order requires “[m]ental health care and treatment, including ... (ii) adequate mental health programs for all prisoners with serious mental illness; ... and (v) ceasing to place seriously mentally ill prisoners in segregated housing or lock-down as a substitute for mental health treatment.” 98 They substitute other approaches to prison discipline. So in Mississippi, in 2012: “MDOC will develop a behavior management policy that incorporates positive behavior intervention and supports for youth.” 99 They moderate the sanctions applicable to various kinds of misconduct. In New York, under a 2015 consent decree, only the most serious misconduct can lead

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to a term in solitary. 100 ) And they centralize decisionmaking, to undercut the ability of dissenting officials to stymie reform. In a 2007 Mississippi consent decree, for example,
The process for admission to and release from administrative segregation will be centralized. A Warden who wishes to recommend that an inmate be housed in administrative segregation must submit to *23 the Central Classification Office for review a referral form documenting the reason for the referral. If the Central Classification Office agrees with the recommendation, it will forward the referral form to the Commissioner or his designee for final review and approval. 101
C. Court orders or settlement provisions broadening/speeding the path out of solitary confinement
Finally, settlements in solitary confinement conditions cases have opened or eased prisoners' route out of solitary. Cases have set up review processes, both retrospective (to clear out some of the existing population) 102 and prospective, to speed future releases. 103 And they have implemented “step-down” programs and housing units, “with the aim of returning inmates who successfully complete the program back to general population.” 104
IV. OLMSTEAD ORDERS (MODERN DEINSTITUTIONALIZATION)
I move in this Part to a third and final analogy to the anti-incarcerative orders I am urging. In 1999, the Supreme Court held in Olmstead v. L.C. ex rel. Zimring 105 that unjustified institutionalization of people with disabilities violates the Americans with Disabilities Act (ADA). The Court explained that “unjustified institutional isolation of persons with disabilities is a form of discrimination,” because it “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and it “severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” 106
In the years since the Olmstead decision, advocates have brought a wave of deinstitutionalization litigation to enforce it. As Professor Sam Bagenstos explains, deinstitutionalization advocates have used litigation implementing the Olmstead approach to work towards “the twin goals of ... enabling people with disabilities to move out of institutional *24 settings and promoting high-quality community services.” 107 Since 2000, the population in large institutions for people with intellectual/ developmental disabilities is down over a third; 108 the number of residents in state and county mental hospitals is down about a quarter. 109 Olmstead orders are far from the only driver of this population decline, but they have contributed by setting out “extensive and detailed provisions governing the types of services the states must provide in the community to those who have been institutionalized or are at risk of institutionalization, the number of individuals who must receive those services, and timetables specifying when those services must be provided.” 110
Under Olmstead, the ADA doesn't require states to provide services to people with disabilities, but it does require that when services are provided, the setting be as integrated as practicable. In keeping with this integration insight, Olmstead orders are typically not exclusionary. That is, they bolster the alternatives to institutions, rather than barring admission to the large facilities that used to dominate service provision. For example, in United States v. Delaware, the 26-page settlement between the U.S. Department of Justice and the state of Delaware provided for statewide crisis services to “[p]rovide timely and accessible support to individuals with mental illness experiencing a behavioral health crisis, including a crisis due to substance abuse.” 111 It detailed numerous items that would form a “continuum of support services intended to meet the varying needs of individuals with mental illness,” including Assertive Community Treatment teams--multidisciplinary groups including a psychiatrist, a nurse, a psychologist, a social worker, a substance abuse specialist, a vocational rehabilitation specialist and a *25 peer

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specialist--to “deliver comprehensive, individualized, and flexible support, services, and rehabilitation to individuals in their home and communities,” 112 and various kinds of case management. And it provided for supported housing (“an array of supportive services that vary according to people's changing needs and promote housing stability”) and employment (“integrated opportunities for people to earn a living or to develop academic or functional skills”). Other Olmstead decrees contain similar provisions. 113
As with Part II's solitary confinement orders, these Olmstead orders are offered here in support of an analogy, as useful models for conditions of confinement litigation. They remind us, structurally, that to solve a problem inside an institution it may be necessary to direct enforcement effort outside. In addition, they can serve as “go by's” for the design and drafting of key elements of crisis intervention and other anti-carcerative approaches.
V. THE PLRA'S PRISONER RELEASE ORDER PROVISION
So far in this essay, I've tried to demonstrate that anti-incarcerative orders would be a useful remedy for unlawful conditions of confinement, and that several types of analogous remedies are ready models for them. But, you should be asking (as always in jail and prison litigation) what about the Prison Litigation Reform Act? Does it stand in the way? As Part I describes, 114 population caps have since 1996 been tightly regulated by the Prison Litigation Reform Act--hence their sharp recent decline. All new court orders in prison and jail conditions cases are constrained by the PLRA's requirements of demonstrated need and narrow tailoring. 115 But are anti-incarcerative orders subject to the PLRA's particularly sharp “prisoner release order” constraints? In this Part, I argue that they are not.
The PLRA sets several onerous prerequisites for entry of “a prisoner release order,” even on consent. Such an order is not allowed “unless” a prior order “for less intrusive relief ... has failed,” 116 “crowding is the primary cause of the violation of a Federal right; and ... no other relief will remedy the violation of the Federal right.” 117 Even then, only a *26 specially convened three-judge panel can enter the order. 118 What counts as a “prisoner release order”? The statute defines the term to “include[] any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 119 Do antiincarcerative remedies designed to keep vulnerable populations out of jail and prison fit this definition? I think the answer is no.
In a particular case, anti-incarcerative remedies could have the “purpose ... of reducing or limiting the prison population.” Indeed, in several of the cases highlighted in Part II, they do have that purpose. Consider for example, the Virgin Islands case mentioned in Part II. Recently the plaintiffs explained the basis of what they labeled the “population reduction remedy”:
This population reduction remedy is foundational; compliance with it makes it easier to reach compliance with all other substantive provisions of the Agreement. The fewer prisoners there are at the Jail, the easier it is to supervise them appropriately, to house them safely, to separate known enemies, and to provide them with all services required under the Agreement. The fewer seriously mentally ill prisoners who are housed at the Jail, the easier it is to adequately treat and safely house the remaining mentally ill prisoner population. 120
In this particular case, the point of the remedies in question is to assist in implementing a long-standing population cap.
But in this essay, I've been arguing for anti-incarcerative remedies with a quite different goal--a purpose not of population reduction but population protection, minimizing the admission to prison or jail of particularly vulnerable would-be prisoners-people with disabilities, the young, the old, non-violent offenders, LGBT people, etc. The success or failure of the anti-

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incarcerative order would not turn on the affected jail or prison's population count. Such programs don't dictate who can or cannot be admitted to prison, and an anti-incarcerative order that imposes them would not be violated if a facility's population grows. Accordingly, I think it would be a stretch to consider this kind of order, with this kind of purpose, a PLRA-covered “prisoner release order.”
Textually, such an order clearly lacks the “purpose ... of reducing or limiting the prison population.” And it does not “direct[] the release from or nonadmission of prisoners to a prison.” The textual question thus *27 comes down to whether anti-incarcerative orders with a non-population-reduction purpose should nonetheless be deemed to have the “effect of reducing or limiting the prison population”--if, in fact, such a reduction takes place, which it might or might not. As I now develop, I think it's implausible to read the statutory word “effect” to reach so broadly; Congress's evident purpose for the “prisoner release order” provision was to cover population caps and orders that function like population caps. And the kind of broad reading of “effect” that would encompass anti-incarcerative orders would similarly sweep in orders that are even farther away from Congress's concerns.
The legislative history of the PLRA is fairly sparse: the statute was passed after just one hearing. Nonetheless, it sheds real light on Congress's intent. The prisoner release order provision was mentioned quite a few times-- throughout that one hearing, in the only committee report, and on the floor of the House and Senate. Each and every time, both the bill's supporters and its opponents make clear that the targets of the provision were jail and prison population caps and orders--for example, requirements to hold vacant a particular percentage of cells--functioned, like population caps, to compel the release or non-admission of prisoners. For example,
• The House Committee report noted: “Population caps are a primary cause of ‘revolving door justice.”’ 121

• Congressman Bill McCullom, when he began debate on the bill that became the PLRA: “[F]ew problems have contributed more to the revolving door of justice than Federal court-imposed prison population caps. Cities across the United States are being forced to put up with predators on their streets because of this judicial activism.” 122

• Congressman Charles Canady, as he spoke in support of the bill: “it will make clear that imposing a prison or jail population cap should absolutely be a last resort” 123

• Congressman Bill Young, in the same debate: the bill “prevents judges from placing arbitrary caps on prison populations.” 124

• Senator Orrin Hatch, in his prepared statement opening the only Senate hearing on the PLRA: “Prison population caps, which result in revolving door justice and the commission of untold *28 numbers of preventable crimes, should be the absolute last resort.” 125

• Senator Kay Bailey Hutchison, at the same hearing, explained that her motivation for drafting the prisoner release order provision, was the murder of a friend of hers: “The murderer was on early release because of a case, the

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Ruiz case in Texas, that requires us to release prisoners if we go above an 11-percent vacancy rate.” 126 Therefore, “[m]y bill also provides that the courts not impose limits or reduction in prison population unless the plaintiff proves that overcrowding is the primary problem and there is no other solution available.” 127
• And, at the same hearing, former Attorney General William Barr testified in favor of the bill: “Even more troublesome ... is many decrees impose quite arbitrary population caps and space requirements” 128
These quotes (and I could triple their number without changing their content) evidence Congress's clear goal for the statutory language it chose. “Purpose or effect of reducing or limiting the prison population” is language intended to reach both explicit population caps and requirements--about space per prisoner or cell vacancy rate--that are population caps in effect. Population caps do precisely what Congress forbids: they either “reduc[e] or limit[] the prison population.” And Congress's skepticism about population caps explains the PLRA's “purpose or effect” language, too. That language is necessary to keep parties or judges from evading the statutory hurdles by entering an order, like a per-prisoner space requirement or an order requiring a percentage of empty cells, that functions like--but isn't quite--a population cap.
But there is absolutely nothing in the PLRA's legislative history to suggest that Congress's “prisoner release order” language was trying to target the kinds of anti-incarcerative remedies featured here--which lead to non-incarcerative outcomes for some people, but do not release or bar incarceration for anyone and do not require a decrease in jail or prison population. Indeed, a reading of “effect of reducing or limiting the prison population” that is broad enough to cover the kinds of remedies canvassed here--mental health diversionary practices, for example--would sweep in court orders far indeed from Congress's concerns. Imagine, for example, that a case alleging discrimination against some *29 classes of prisoners (say, women or members of a particular race) results in an order equalizing plaintiffs' access to rehabilitative programming. Those new programming opportunities could well lead to earlier release of some prisoners, who are newly able to accrue sentencing credits, or newly attractive to parole boards. But surely that effect would not make the programming order a PLRA-limited “prisoner release order.” Similarly, a court order in a due process case that regulates prison disciplinary hearings and causes fewer misconduct findings will similarly lead to the earlier release of some prisoners. Yet, again, it would extend the PLRA's restrictions far past Congress's intent to therefore consider such an order a “prisoner release order.”
Thus it makes the most sense to conclude that when anti-incarcerative orders are about protection, not about population, they lack the “purpose or effect of reducing or limiting the prison population.” Accordingly, like all court orders in jail and prison conditions cases, they may be entered only if they comply with the PLRA's ordinary requirements for entry of relief. 129 But the higher hurdles for “prisoner release orders” have no application.
CONCLUSION
When prisons and jails fail to comply with the laws that regulate them--when conditions of confinement violate prisoners' rights under the Eighth Amendment or the Americans with Disabilities Act, or some other legal provision--one solution would be to keep people particularly vulnerable to those violations out of harm's way, out of prison. Anti-incarcerative measures have gained track records in a variety of nonlitigation settings. They deserve a more prominent place in the remedial toolbox for conditions of confinement litigation as well.

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Footnotes

a1 Henry M. Butzel Professor of Law, University of Michigan. My thanks to Ira Burnim and the Bazelon Center for Mental Health Law for convening the meeting that prompted me to write this paper, to the University of Miami Race & Social Justice Law Review for providing both an in-person and print forum for it, and to Sharon Dolovich and Sam Bagenstos for their comments. All remaining errors are mine. I also wish to acknowledge the generous support of the William W. Cook Endowment of the University of Michigan.

d1 © 2016 by Margo Schlanger. This Article may be copied and distributed for free or at cost to students or prisoners.

1

See, e.g., Devan Kreisberg, Tough on Criminal Justice Reform, NEW AM. WKLY. (Sept. 17, 2015), https://

www.newamerica.org/weekly/tough-on-criminal-justice-reform/.

2

For information on New York, California, and New Jersey--the three states whose current prison population dropped

about 25% off their respective peaks between 2006 and 2012--see MARC MAUER & NAZGOL GHANDNOOSH,

THE SENTENCING PROJECT, FEWER PRISONERS, LESS CRIME: A TALE OF THREE STATES (July 2014),

http://sentencingproject.org/doc/publications/inc_Fewer_Prisoners_Less_Crime.pdf. Colorado, Connecticut, Hawaii,

Michigan, Rhode Island, and Vermont each also “achieved double-digit reductions during varying periods within those

years.” Id. at 2.

3

For correctional populations figures from 1980 to 2014, see BUREAU OF JUSTICE STATISTICS, U.S. DEP'T

OF JUSTICE, ESTIMATED NUMBER OF PERSONS SUPERVISED BY U.S. ADULT CORRECTIONAL

SYSTEMS, BY CORRECTIONAL STATUS, 1980-2014 (2016), http://www.bjs.gov/content/keystatistics/excel/

Correctional_population_counts_by_status_19802014.xlsx. For 1970, see U.S. BUREAU OF PRISONS, U.S. DEP'T

OF JUSTICE, NAT'L PRISONER STAT. BULL., NO. 47, NATIONAL PRISONER STATISTICS: PRISONERS IN

STATE AND FEDERAL INSTITUTIONS FOR ADULT FELONS: 1968-1970, at 22, tbl.10c (Apr. 1972) (sentenced

prisoners); for 1970, see LAW ENF'T ASSISTANCE ADMIN., U.S. DEP'T OF JUSTICE, NATIONAL JAIL

CENSUS 1970, at 10 tbl.2 (1971). U.S. population data is from the U.S. Census. SeePOPULATION DIVISION, U.S.

CENSUS BUREAU, HISTORICAL NATIONAL POPULATION ESTIMATES: JULY 1, 1900 TO JULY 1, 1999 (rev.

June 28, 2000), https://www.census.gov/population/estimates/nation/popclockest.txt; Population Estimates: National

Intercensal Estimates (2000-2010), U.S. CENSUS BUREAU, https://www.census.gov/popest/data/intercensal/national/

nat2010.html (last visited June 26, 2016); Population Estimates: National Totals: Vintage 2015, U.S. CENSUS

BUREAU, https://www.census.gov/popest/data/national/totals/2015/index.html (last visited June 26, 2016).

4

DORIS J. JAMES & LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE,

MENTAL HEALTH PROBLEMS OF PRISON AND JAIL INMATES (rev. Dec. 14, 2006), http://www.bjs.gov/

content/pub/pdf/mhppji.pdf; E. FULLER TORREY ET AL., THE TREATMENT ADVOCACY CTR., THE

TREATMENT OF PERSONS WITH MENTAL ILLNESS IN PRISONS AND JAILS: A STATE SURVEY (Apr. 8,

2014), http://tacreports.org/storage/documents/treatment-behind-bars/treatment-behind-bars.pdf; KiDeuk Kim, Miriam

Becker-Cohen & Maria Serakos, The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A

Scan of Practice and Background Analysis, URBAN INST. (Apr. 7, 2015), http://www.urban.org/research/publication/

processing-and-treatment-mentally-ill-persons-criminal-justice-system/view/full_report.

5

See Tammy Smith et al., Individuals with Intellectual and Developmental Disabilities in the Criminal

Justice System and Implications for Transition Planning, 43 EDUC. AND TRAINING IN DEV.

DISABILITIES 421, 422 (2008), http://www.daddcec.org/Portals/0/CEC/Autism_Disabilities/Research/Publications/

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Education_Training_Development_Disabilities/2008v43_Journals/ ETDD_200812v43n4p421-430_Individuals_With_Intellectual_Developmental_Disabilities_Criminal.pdf.

6

See, e.g., Joan Petersilia, Cal. Research Policy Ctr., Doing Justice? The Criminal Justice System

and Offenders with Developmental Disabilities 10-11 (2000), http://citeseerx.ist.psu.edu/viewdoc/download?

doi=10.1.1.113.6433&rep=rep1&type=pdf; Morris L. Thigpen et al., Nat'l Inst. of Corrections, U.S. Dep't of

Justice, Effective Prison Mental Health Services: Guidleines to Expand and Improve Treatment (2004), https://

s3.amazonaws.com/static.nicic.gov/Library/018604.pdf.

7

Andrew P. Wilper et al., The Health and Health Care of US Prisoners: Results of a Nationwide Survey, 99 AM. J. PUB.

HEALTH 666 (2009), http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2008.144279.

8

JENNIFER BRONSON, LAURA M. MARUSCHAK & MARCUS BERZOFSKY, BUREAU OF JUSTICE

STATISTICS, U.S. DEP'T OF JUSTICE, DISABILITIES AMONG PRISON AND JAIL INMATES, 2011-12 (Dec.

2015), http://www.bjs.gov/content/pub/pdf/dpji1112.pdf.

9

ALLEN J. BECK, MARCUS BERZOFSKY & CHRISTOPHER KREBS, BUREAU OF JUSTICE STATISTICS, U.S.

DEP'T OF JUSTICE, SEXUAL VICTIMIZATION IN PRISONS AND JAILS REPORTED BY INMATES, 2011-12:

NATIONAL INMATE SURVEY, 2011-12, at 16 (May 2013), http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf;

ALLEN BECK ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SEXUAL VICTIMIZATION

IN PRISONS AND JAILS REPORTED BY INMATES, 2011-12-UPDATE: SUPPLEMENTAL TABLES (Dec. 9,

2014), http://www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf.

10 E. ANN CARSON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PRISONERS IN 2013, at 8 tbl.7 (Sept. 30, 2014), http://www.bjs.gov/content/pub/pdf/p13.pdf.

11 Id.

12 See, e.g., RAM SUBRAMANIAN ET AL., VERA INST. OF JUSTICE, INCARCERATION'S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA (Feb 2015), http://www.vera.org/sites/default/files/resources/downloads/ incarcerations-front-door-report.pdf.

13 For a national survey of mental-health diversion programs, see THE CTR. FOR HEALTH & JUSTICE AT TASC, NO ENTRY: A NATIONAL SURVEY OF CRIMINAL JUSTICE DIVERSION PROGRAMS AND INITIATIVES (Dec. 2013), http://www2.centerforhealthandjustice.org/sites/www2.centerforhealthandjustice.org/files/ publications/CHJ%20Diversion%20Report_web.pdf.

14 See Randolph Dupont et al., Crisis Intervention Team 10-Core Elements, CRISIS INTERVENTION TEAM INT'L (Sept. 2007), http://www.citinternational.org/images/PDF/Core_Elements_Condensed.pdf; Letter from Jocelyn Samuels, Acting Assistant U.S. Att'y Gen. & Damon P. Martinez, Acting U.S. Att'y, Dist. of N.M., to Richard J. Berry, Mayor, City of Albuquerque (Apr. 10, 2014), http://www.clearinghouse.net/chDocs/public/PN-NM-0002-0001.pdf (criticizing absence of CIT).

15 See, e.g., POLICE EXEC. RESEARCH FORUM, CRITICAL ISSUES IN POLICING SERIES: AN INTEGRATED APPROACH TO DE-ESCALATION AND MINIMIZING USE OF FORCE (Aug. 2012), http://www.policeforum.org/assets/docs/Critical_Issues_Series/an%20integrated%C20approach%C20to %C20deescalation%C20and%C20minimizing%C20use%C20of%C20force%202012.pdf.

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16 See, e.g., LEONARD I. STEIN & ALBERTO B. SANTOS, ASSERTIVE COMMUNITY TREATMENT OF PERSONS WITH SEVERE MENTAL ILLNESS (1998).
17 For a calculator that shows the impact of various proposed policy reforms, see Ryan King et al., Reducing Mass Incarceration Requires Far-Reaching Reforms, URBAN INST. (Aug. 2015), http://webapp.urban.org/reducing-massincarceration/index.html.
18 JAMES AUSTIN & MICHAEL JACOBSON, VERA INST. OF JUSTICE, HOW NEW YORK CITY REDUCED MASS INCARCERATION: A MODEL FOR CHANGE? (2012), http://www.brennancenter.org/sites/default/files/ publications/How_NYC_Reduced_Mass_Incarceration.pdf.
19 JUDITH GREENE & MARC MAUER, DOWNSCALING PRISONS: LESSONS FROM FOUR STATES, THE SENTENCING PROJECT (2010), http://www.sentencingproject.org/wp-content/uploads/2016/01/DownscalingPrisons-Lessons-from-Four-States.pdf.
20 See, e.g., JULIE SAMUELS, NANCY LA VIGNE & SAMUEL TAXY, STEMMING THE TIDE: STRATEGIES TO REDUCE THE GROWTH AND CUT THE COST OF THE FEDERAL PRISON SYSTEM, URBAN INST. (Nov. 2013), http://www.urban.org/sites/default/files/alfresco/publication-pdfs/412932-Stemming-the-Tide-Strategiesto-Reduce-the-Growth-and-CuttheCost-of-the-Federal-Prison-System.PDF.
21 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
22 In an intriguing article, Professor Alex Reinert has made a quite different argument, but one that might sometimes lead to a similar outcome; he urges that conditions of confinement doctrine embrace a principle of proportionality, under which certain “conditions could be constitutionally imposed as punishment for some classes of prisoners, but not constitutionally imposed on a different class of prisoner, either because of their crime of incarceration or particular characteristics.” Alexander A. Reinert, Eighth Amendment Gaps: Can Conditions of Confinement Litigation Benefit from Proportionality Theory, 36 FORDHAM URB. L.J. 53, 85 (2009).
23 The Supreme Court opened the door to modern prison and jail conditions cases in Cooper v. Pate, 378 U.S. 546 (1964), per curiam, which allowed a religious discrimination case brought by a Black Muslim prisoner to proceed.
See 382 F.2d 518 (7th Cir. 1967) for the outcome. Holt v. Sarver, 309 F.Supp. 362 (E.D. Ark. 1970), was the first large-scale case to walk through that door. For lots of information about Holt and its many-opinion life, see Holt v. Sarver, No. 5:69-cv-00024-GTE (E.D. Ark), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/ detail.php?id=553 (last visited June 26, 2016).
24 See Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 HARV. CIV. RIGHTSCIV. LIB. L. REV. 165 (2013). For lists and information about dozens of prison and jail population caps, see the Civil Rights Litigation Clearinghouse; the collections are available at http://bit.ly/Prison-Pop-Caps, and http://bit.ly/ Jail-Pop-Caps. Statewide population caps were imposed in Louisiana, Florida, and Texas. For a full procedural history and copies of the many opinions and crucial orders, see Williams v. McKeithen, No. 71-cv-0098B (M.D. La. 1971), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=722 (last visited June 26, 2016); Costello v. Wainwright, No. 72-cv-00109 (M.D. Fla. 1972), CIV. RIGHTS LITIG. CLEARINGHOUSE, http:// www.clearinghouse.net/detail.php?id=644 (last visited June 26, 2016); and Ruiz v. Estelle, No. 78-cv-00987 (S.D. Tex. 1978), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=960 (last visited June 26, 2016).

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25 See Bell v. Wolfish, 441 U.S. 520, 540-43 (1979); Rhodes v. Chapman, 452 U.S. 337, 348-49 (1981).
26 Rhodes v. Chapman, 452 U.S. at 348.
27 Wilson v. Seiter, 501 U.S. 294, 305 (1991).
28 See Order Approving Settlement, Williams v. McKeithen, No. 71-cv-0098B (M.D. La. Sept. 26, 1996), at 1-2, http:// www.clearinghouse.net/chDocs/public/PC-LA-0001-0009.pdf; Celestineo v. Singletary, 147 F.R.D. 258, 264 (M.D. Fla. 1993); Ruiz v. Johnson, 154 F. Supp. 2d 975, 995 (S.D. Tex. 2001).
29 See supra note 24.
30 Brief for the State of Louisiana et al. as Amici Curiae in Support of Appellants, Schwarzenegger v. Plata, No. 09-1233 (U.S. 2011), at 27-32, http://www.clearinghouse.net/chDocs/public/PC-CA-0057-0037.pdf. The lawsuit that looms the largest in the legislative history of the PLRA's population order provisions was Harris v. City of Phila., No. 82-1847 (E.D. Pa. filed Apr. 1982); see generallyHarris v. Pernsley, 654 F. Supp. 1042 (E.D. Pa. 1987); Harris v. City of Phila., No. 82-1847 (E.D. Pa.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=231 (last visited June 26, 2016). For a summary of the role this case played in the PLRA's passage, see Brief for the State of Louisiana et al., supra, and sources cited.
31 Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, §§ 801-10, 110 Stat. 1321-66
(1996) (codified at 11 U.S.C. § 523; 18 U.S.C. §§ 3624, 3626; 28 U.S.C. §§ 1346, 1915, 1915A, 1932 (2006); 42 U.S.C. §§ 1997a-1997h).
32 REPUBLICAN NAT'L COMM., CONTRACT WITH AMERICA: THE BOLD PLAN BY REPRESENTATIVE NEWT GINGRICH, REPRESENTATIVE DICK ARMEY, AND THE HOUSE REPUBLICANS TO CHANGE THE NATION 53 (Ed Gillespie & Bob Schellhas eds., 1994).
33 See Part V, infra. The PLRA eliminated the authority of a single district judge to enter a population order, instead requiring convening of a three-judge district court. It expanded intervention rights to criminal justice stakeholders likely to object to an order. It disallowed population orders as a first-try remedy, allowing them only if a prior, less intrusive order “has failed to remedy the deprivation of the Federal right sought to be remedied.” And it established as a prerequisite to a population order a finding, by clear and convincing evidence, that “crowding is the primary cause of the violation of a Federal right,” and that “no other relief will remedy the violation of the Federal right.” 18 U.S.C. § 3626(a).
34 See Brown v. Plata, 563 U.S. 493, 502 (2011).
35 See U.S. v. Cook Cnty., No. 1:10-cv-02946 (N.D. Ill.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http:// www.clearinghouse.net/detail.php?id=13145 (last visited June 26, 2016); Final Order of Three-Judge District Court, U.S. v. Cook Cnty., No. 1:10-cv-02946 (N.D. Ill. Mar. 29, 2011), http://www.clearinghouse.net/chDocs/public/JCIL-0048-0006.pdf; Duran v. Apodaca, No. 77-721 (D.N.M), CIV. RIGHTS LITIG. CLEARINGHOUSE, http:// www.clearinghouse.net/detail.php?id=834 (last visited June 26, 2016).
36 Roberts v. Cnty. of Mahoning, No. 4:03-cv-02329-DDD (N.D. Ohio), CIV. RIGHTS LITIG. CLEARINGHOUSE, http:// www.clearinghouse.net/detail.php?id=5507 (last visited June 26, 2016); Consent Judgment Entry with a Stipulated Population Order, Roberts v. Cty. of Mahoning, No. 4:03-cv-02329-DDD (N.D. Ohio May 17, 2007), at 9-11, http:// www.clearinghouse.net/chDocs/public/JC-OH-0010-0007.pdf.

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37 Brown v. Plata, 563 U.S. 493, 541(2011); Inmates of Occoquan v. Barry, No. 86-2128 (D.D.C), CIV. RIGHTS LITIG.
CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=624 (last visited June 10, 2016); Opinion, Inmates of Occoquan v. Barry, No. 86-2128 (D.D.C. Dec. 22, 1986), at 634-35, http://www.clearinghouse.net/chDocs/public/ PC-DC-0003-0023.pdf.
38 For statistics, see Schlanger, Plata v. Brown and Realignment, supra note 24, at 198-99.
39 In Ruiz v. Estelle, a crucial (and huge) early prison case, Judge William Wayne Justice ordered Texas prison officials to use good time credits, parole, work release, and community corrections to relieve overcrowding. Amended Decree Granting Equitable Relief and Declaratory Judgment, Ruiz v. Estelle, No. H-78-987 (S.D. Tex. May 1, 1981), at I.A.,
reprinted as appendix to Ruiz v. Estelle, 666 F.2d 854, 862 (5th Cir. 1982). However, the Court of Appeals reversed
the order, finding that it “unnecessarily invade[d] the management responsibility of state officials.” Ruiz v. Estelle, 679 F.2d 1115, 1148 (5th Cir. 1982), although in an opinion issued after a petition for rehearing, it emphasized that if the state failed to comply with the population cap entered in the case, “our order shall not preclude the direction of specific
remedies.” Ruiz v. Estelle, 688 F.2d 266, 268 (5th Cir. 1982).
40 Carruthers v. Cochran (Jonas v. Stack), No. 0:76-cv-06086-WMH (S.D. Fla.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=56 (last visited June 26, 2016).
41 Carty v. Farrelly, No. 3:94-cv-00078-SSB (D.V.I), CIV. RIGHTS LITIG. CLEARINGHOUSE, http:// www.clearinghouse.net/detail.php?id=979 (last visited June 26, 2016).
42 McClendon v. City of Albuquerque, 6:95-cv-00024-JAP-KBM (D.N.M), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=196 (last visited June 26, 2016).
43 Maynor v. Morgan Cnty., Ala., 5:01 -cv-00851-UWC (N.D. Ala.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http:// www.clearinghouse.net/detail.php?id=10041 (last visited June 26, 2016).
44 Plata v. Brown, No. 3:01-cv-01351-TEH (N.D. Cal.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http:// www.clearinghouse.net/detail.php?id=589 (last visited June 26, 2016); Plata v. Brown/Coleman v. Brown ThreeJudge Court, No. 3:01-cv-1351 (N.D. Cal), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net'/ detail.php?id=12280 (last visited June 26, 2016); Coleman v. Brown, No. 2:90-cv-00520-LKK-JFM (E.D. Cal.), CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=573 (last visited June 26, 2016).
45 Brown v. Plata, 563 U.S. 493, 545 (2011).
46 Settlement Agreement, Carty v. DeJongh, No. 3:94-cv-00078-SSB-GWB (D.V.I May 13, 2013), at 3-4, http:// www.clearinghouse.net/chDocs/public/PC-VI-0001-0026.pdf.
47 Id. at 17.
48 Id. at 3-4.
49 Consent Decree Applicable to the Plaintiff Class and the County Defendants, Maynor v. Morgan Cnty., Ala., 5:01cv-00851-UWC (N.D. Ala. Sept. 25, 2001), http://www.clearinghouse.net/chDocs/public/JC-AL-0020-0002.pdf.

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50 Status Report Regarding Activities of Task Force, Maynor v. Morgan Cty., Ala., 5:01-cv-00851-UWC (N.D. Ala. May 23, 2006), http://www.clearinghouse.net/chDocs/public/JC-AL-0020-0010.pdf; Affidavit of William E. Shinn Jr., Maynor v. Morgan Cty., Ala., 5:01-cv-00851-UWC (N.D. Ala. May 23, 2006), http://www.clearinghouse.net/chDocs/ public/JC-AL-0020-0010.pdf.
51 Community Corrections, MORGAN CTY., ALA., http://www.co.morgan.al.us/communitycorrectionsindex.html# (last visited June 26, 2016).
52 Order, Carruthers v. Lamberti, No. 76-cv-06086-DMM (S.D. Fla. Sept. 30, 2010), http://www.clearinghouse.net/ chDocs/public/JC-FL-0008-0016.pdf.
53 Under Florida law, persons arrested can be detained in jail for several weeks prior to being charged with a crime. Fla. R. Crim. P. 3.134.
54 James Austin, Ph.D., Evaluation of Broward County Jail Population: Current Trends and Recommended Options, Carruthers v. Lamberti, No. 76-cv-06086-DMM (S.D. Fla. Aug. 31, 2015), at 1 (finding population of 4,500 inmates), 26-30 (recommending and tallying population reduction measures), http://www.clearinghouse.net/chDocs/ public/JCFL-0008-0018.pdf.
55 Stipulation for Entry of Consent Decree, Carruthers v. Lamberti, No. 76-cv-06086-DMM (S.D. Fla. July 27, 1994), at 12, http://www.clearinghouse.net/chDocs/public/JCFL0008-0002.pdf; Docket, Jonas v. Stack, No. 76-cv-06086-DMM, at #671 (July 28, 1995) (“By separate order, the Court will designate release authority and direct the use of same to ensure that no more than 3,656 inmates are retained in the Broward County jail system.”).
56 See Plaintiffs' Motion for the Appointment of a Population Management Expert, Carruthers v. Lamberti, No. 76cv-06086-DMM (S.D. Fla. Sept. 3, 2010), at 2, http://www.clearinghouse.net/chDocs/public/JC-FL-0008-0025.pdf (“This Court has entered a number of orders setting population caps or otherwise remedying conditions at the Broward County Jail that were caused or exacerbated by overcrowding.”).
57 Order, Carty v. Farrelly, No. 3:94-cv-00078-SSB (D.V.I June 21, 2011), http://www.clearinghouse.net/chDocs/public/ PC-VI-0001-0033.pdf.
58 See Plaintiffs' Motion to Enforce the Court's Order Appointing Dr. James Austin to Conduct a Population Management Assessment, or in the Alternative to Re-Appoint Dr. Austin, Carty v. Farrelly, No. 3:94-cv-00078-SSB (D.V.I June 2, 2015), http://www.clearinghouse.net/chDocs/public/PC-VI-0001-0031.pdf (seeking court enforcement of the 2011 requirement for a criminal justice assessment); Order, Carty v. Farrelly, No. 3:94-cv-00078-SSB (D.V.I Mar. 11, 2016), http://www.clearinghouse.net/chDocs/public/PC-VI-0001-0037.pdf (granting the motion for enforcement); Defendants' Opposition To Plaintiffs' Expedited Motion For Court Order Accepting Agreed Upon Quarterly Goals, Carty v. Farrelly, No. 3:94-cv-00078-SSB (D.V.I Mar. 23, 2016), at 3, http://www.clearinghouse.net/chDocs/public/PC-VI-0001-0038.pdf (“As their fourth quarterly goal, Defendants have chosen the following: launch criminal justice assessment.”).
59 Brown v. Plata, 563 U.S. 493, 541(2011).
60 For a group of varied analyses of California's criminal justice Realignment, see The Great Experiment: Realigning Criminal Justice in California and Beyond, 664 ANNALS AM. ACAD. POL. & SOC. SCI. 221 (Charis Kubrin and Carroll Seron eds., Mar. 2016), http://ann.sagepub.com/content/664/1.toc.
61 See Order Granting in Part and Denying in Part Defs' Request for Extension of Dec. 31, 2013 Deadline, Coleman v. Brown/Plata v. Brown, Nos. 2:90-cv-0520-LKK-DAD (PC) and C01-1351-TEH (E.D. Cal and N.D. Cal, Feb. 10, 2014),

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http://www.clearinghouse.net/chDocs/public/PC-CA-0057-0105.pdf. For the background of this order, seeColeman v. Brown, 952 F. Supp. 2d 901, 935-36 (E.D. Cal. 2013); Defs.' Resp. to Apr. 11, 2013 Order Requiring List of Proposed Population Reduction Measures; Court-Ordered Plan, Coleman v. Brown/Plata v. Brown, Nos. 2:90-cv-0520 LKK JFM P and C01-1351 TEH (E.D. Cal and N.D. Cal, May 2, 2013), at 28, http://www.clearinghouse.net/chDocs/public/PCCA-0057-0117.pdf (“The following is the plan that has been compelled by the Court. Defendants do not believe that these measures are necessary or prudent at this time ...”); Stipulation and Order in Response to Nov. 14, 2014 Order, Coleman v. Brown/Plata v. Brown, Nos. 2:90-cv-0520 KJM DAD (PC) and C01-1351 TEH (E.D. Cal and N.D. Cal, Dec. 19, 2014), http://www.clearinghouse.net/chDocs/public/PC-CA-0057-0110.pdf.
62 See Order Granting in Part and Denying in Part Defs' Request for Extension, supra note 61, at 2.
63 Supplemental Order to Enforce Previously Ordered Population Limits at the BCDC Main Facility, McClendon v. City of Albuquerque, No. 6:95-cv-00024-JAP-KBM (D.N.M. June 27, 2001), at 2-3, http://www.clearinghouse.net/chDocs/ public/JC-NM0002-0026.pdf; Amended Order Resolving Two Motions and Order to Show Cause, McClendon v. City of Albuquerque, No. 6:95-cv-00024-JAP-KBM (D.N.M. Aug. 19, 2014), at 7, http://www.clearinghouse.net/chDocs/ public/JC-NM-0002-0036.pdf.
64 Order Certifying a Class, McClendon v. City of Albuquerque, No. 6:95-cv-00024-JAP-KBM (D.N.M. Nov. 5, 1996), http://www.clearinghouse.net/chDocs/public/JC-NM-0002-0025.pdf.
65 Order Regarding the Prison Litigation Reform Act, McClendon v. City of Albuquerque, No. 6:95-cv-00024-JAP-KBM (D.N.M. Nov. 5, 1996), at 4, http://www.clearinghouse.net/chDocs/public/JC-NM-0002-0015.pdf (“officials from the City of Albuquerque will meet with officials from Bernalillo County to develop solutions to the continuing resident population pressures at BCDC, ... [s]uch discussions will include at least possible expansion of the interim Westside facility, possible renovations to Montessa Park, and possible development of additional drug treatment and/ or mental health treatment facilities.”).
66 Order, McClendon v. City of Albuquerque, No. 6:95-cv-00024-JAP-KBM (D.N.M. Nov. 5, 1996), at 10-11, http:// www.clearinghouse.net/chDocs/public/JC-NM-0002-0024.pdf.
67 Supplemental Order to Enforce Previously Ordered Population Limits at the BCDC Main Facility, McClendon v. City of Albuquerque, No. 6:95-cv-00024-JAP-KBM (D.N.M. June 27, 2001), at 2-3, http://www.clearinghouse.net/chDocs/ public/JC-NM0002-0026.pdf.
68 Id. at 4-6.
69 Id. at 2-3.
70 Id. at 5.
71 Stipulated Agreement, McClendon v. City of Albuquerque, No. 6:95-cv-00024-MV/DJS (D.N.M. Jan. 31, 2002), at 2, http://www.clearinghouse.net/chDocs/public/JCNM-0002-0002.pdf.
72 Supplemental Order to Enforce Previously Ordered Population Limits at the BCDC Main Facility, supra note 67, Exhibit A at 2.
73 Id. at 10.

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74 Settlement Agreement, McClendon v. City of Albuquerque, No. 6:95-cv-00024-JAP-KBM (D.N.M. Mar. 22, 2016), http://www.clearinghouse.net/chDocs/public/JCNM-0002-0035.pdf; id., Exhibit D (“Check-Out Audit Agreement No. 3: The Conditions of Confinement at the Bernalillo County Metropolitan Detention Center”), ¶¶ 2-3.

75 Roy D. King, The Rise and Rise of Supermax: An American Solution in Search of a Problem?, 1 PUNISHMENT & SOC'Y 163 (1999); NAT'L INST. OF CORR., SUPERMAX HOUSING: A SURVEY OF CURRENT PRACTICE (March 1997), https://s3.amazonaws.com/static.nicic.gov/Library/013722.pdf.

76 Barack

Obama,

Why

We

Must

Rethink

Solitary

Confinement,

WASH.

POST (Jan. 25, 2016), https://www.washingtonpost.com/opinions/barack-obama-why-we-must-

rethinksolitaryconfinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html.

77 See Davis v. Ayala, 135 S.Ct. 2187, 2208-2211 (2015) (KENNEDY, J., concurring) (“[R]esearch still confirms what

this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price.”); Glossip v. Gross, 135 S.Ct. 2726, 2765 (2015) (BREYER, J. dissenting; joined by GINSBURG, J.) (“[I]t is well documented that such prolonged solitary confinement produces numerous deleterious harms.”).

78 ARTHUR LIMAN PUB. INTEREST PROGRAM & ASS'N. OF STATE CORR. ADM'RS, TIME-IN-CELL: THE ASCA-LIMAN 2014 NATIONAL SURVEY OF ADMINISTRATIVE SEGREGATION IN PRISON i, iii (Aug. 2015), https://www.law.yale.edu/system/files/area/center/liman/document/asca-liman_administrativesegregationreport.pdf.

79 For a timeline listing and linking to the key cases, and their settlements, see Amy Fettig & Margo Schlanger, Milestones in Solitary Reform, SOLITARY WATCH, http://solitarywatch.com/resources/timelines/milestones/ (last visited May 9, 2016).

80 889 F.Supp. 1146, 1265 (N.D. Cal. 1995).

81 See id. at 1267; Stipulation to Enter Into Private Settlement Agreement Following Notice to the Class and Fairness Hearing, Ind. Prot. and Advocacy Serv. Comm'n v. Comm'r, Ind. Dep't of Corr., No. 1:08-cv-01317 TWP-MJD (S.D. Ind. Jan. 27, 2016), at 10-13, http://www.clearinghouse.net/chDocs/public/MH-IN-0002-0013.pdf; Agreed Order, Rasho v. Baldwin, No. 1:07-CV-1298-MMM-JAG (C.D. Ill. May 8, 2013), at 4-5, http://www.clearinghouse.net/chDocs/ public/PC-IL-0031-0008.pdf; Opinion and Order, Peoples v. Fischer, No. 1:11-cv-02694-SAS (S.D.N.Y. Mar. 31, 2016), at 12-13, http://www.clearinghouse.net/chDocs/public/PC-NY-0062-0014.pdf; Stipulation, Parsons v. Ryan, No. 2:12-cv-00601 (D. Ariz. Oct. 14, 2014), at 8-9, http://www.clearinghouse.net/chDocs/public/PC-AZ-0018-0028.pdf; Settlement Agreement and General Release, Disability Rights Network of Pa. v. Wetzel, No. 1:13-cv-00635JEJ (M.D. Pa. Jan. 9, 2015), at 12, http://www.clearinghouse.net/chDocs/public/PC-PA-0031-0003.pdf; Consent Decree, United States v. Virgin Islands, No. 88-265 (D.V.I. Dec. 1, 1986), http://www.clearinghouse.net/chDocs/ public/PC-VI-0002-0002.pdf; Settlement Agreement, Disability Law Ctr. v. Mass. Dep't of Corr., No. 07-10463MLW (D. Mass. Dec. 12, 2011), at 5, http://www.clearinghouse.net/chDocs/public/PC-MA-0026-0004.pdf; Notice of Proposed Class Action Settlement, Presley v. Epps, No. 4:05-cv-00148-JAD (N.D. Miss. Apr. 28, 2006), at 3, http://www.clearinghouse.net/chDocs/public/PC-MS-0005-0005.pdf; Private Settlement Agreement, Disability Advocates v. N.Y. Office of Mental Health, No. 1:02-cv-04002-GEL (S.D.N.Y. Apr. 27, 2007), at 11-12, http://www.clearinghouse.net/chDocs/public/PC-NY-0048-0002.pdf. For a compilation of extant settlements, see Special Collection: Solitary Confinement, CIV. RIGHTS LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/ results.php?searchSpecialCollection=40 (last visited May 9, 2016).

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82 Opinion and Order, Peoples v. Fischer, supra note 81, at 13-14.
83 Id.; Settlement Agreement, Ashker v. Brown, 4:09-cv-05796-CW (N.D. Cal. Sept. 1, 2015), http:// www.clearinghouse.net/chDocs/public/PC-CA-0054-0024.pdf.
84 See Jones'El v. Berge, 164 F.Supp.2d 1096, 1126 (W.D. Wis. 2001) (“If the mental health professionals determine that any of these inmates are seriously mentally ill, they should not be housed at Supermax Correctional Institution.”).
85 Settlement Agreement, Jones'El v. Berge, No. 00-C-421-C (W.D. Wis. Jan. 24, 2002), at 5, http:// www.clearinghouse.net/chDocs/public/PC-WI-0001-0003.pdf (“No seriously mentally ill prisoners win be sent to SMCI nor will seriously mentally ill prisoners at the facility be permitted to remain there.”).
86 Supplement Consent Decree on Mental Health Care, Use of Force and Classification, Presley v. Epps, 4:05-cv-00148JAD (N.D. Miss. Feb. 15, 2006), at 1, http://www.clearinghouse.net/chDocs/public/PC-MS-0005-0008.pdf.
87 Consent Decree, DePriest ex rel. C.B. v. Walnut Grove Corr. Auth., 3:10-cv-00663-CWR-FKB (S.D. Miss. Mar. 26, 2012), at 9, http://www.clearinghouse.net/chDocs/public/JI-MS-0007-0004.pdf.
88 Stipulation to Enter Into Private Settlement Agreement Following Notice to the Class and Fairness Hearing, Ind. Prot. and Advocacy Serv. Comm'n v. Comm'r, Ind. Dep't of Corr., No. 1:08-cv-01317 TWP-MJD (S.D. Ind. Jan. 27, 2016), at 10, http://www.clearinghouse.net/chDocs/public/MH-IN-0002-0013.pdf.
89 I am not suggesting that these orders constitute population caps, subject to the PLRA's tight procedural rules. For reasons similar to the ones explored in Part V, infra, I think that the PLRA's population order provision does not cover them.
90 In most areas of law, settlements can extend well past what might permissibly be entered in litigated decrees. See Rufo
v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 389 (1992); Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, 478 U.S. 501, 525 (1986) ( “A federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial.”). The terms of settlements are typically limited only by the mild constraints that they “spring from and serve to resolve a dispute within the court's subject matter jurisdiction ... [,] ‘com[e] within the general scope of the case made by the pleadings,’ ... further the objectives of the law upon which the complaint was based,” and are not otherwise unlawful. Id. But the PLRA, 18 U.S.C. § 3626(a)(1)(A), somewhat restricts enforceable settlement terms in jail and prison cases. For discussion, see Margo Schlanger, Prisoners' Rights Lawyers' Strategies for Preserving the Role of the Courts, 69 U. MIAMI L. REV. 519, 526-29 (2015).
91 See, e.g., Lewis v. Casey, 518 U.S. 343, 357 (1996) (“The remedy must of course be limited to the inadequacy that
produced the injury in fact that the plaintiff has established.”); Milliken v. Bradley, 433 U.S. 267, 280 (1977) (“The remedy must therefore be related to the condition alleged to offend the Constitution ...”) (internal quotation marks and
citation omitted); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (“[T]he nature of the violation determines the scope of the remedy.”).
92 See, e.g., United States v. Virginia, 518 U.S. 515, 547 (1996) ( “A remedial decree ... must be shaped to place persons unconstitutionally denied an opportunity or advantage in ‘the position they would have occupied in the absence of

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[discrimination].’ ... A proper remedy for an unconstitutional exclusion ... aims to ‘eliminate [so far as possible] the discriminatory effects of the past’ and to ‘bar like discrimination in the future.”’).
93 See, e.g., Hutto v. Finney, 437 U.S. 678, 712-14 (1978) (approving a prophylactic injunction that limited solitary
confinement to 30 days in light of poor conditions); Louisiana v. United States, 380 U.S. 145, 154-56 (1965) (holding that “the court has not merely the power but the duty to render a decree which will so far as possible eliminate the [unlawful] effects of the past as well as bar like [illegality] in the future”; and citing “[t]he need to eradicate past evil effects and to prevent the continuation or repetition in the future of the [unlawful] practices shown to be so deeply engrained in the laws, policies, and traditions”).
94 See, e.g., Louisiana v. United States, 380 U.S. at 155-56 (upholding reporting requirements adopted to inform the court about defendant activity); Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 TENN. L. REV. 925, 976 (1999).
95 Stipulation to Enter Into Private Settlement Agreement Following Notice to the Class and Fairness Hearing, Ind. Prot. and Advocacy Serv. Comm'n v. Comm'r, Ind. Dep't of Corr., No. 1:08-cv-01317 TWP-MJD (S.D. Ind. Jan. 27, 2016), at 14-15, http://www.clearinghouse.net/chDocs/public/MH-IN-0002-0013.pdf.
96 Settlement Agreement, Peoples v. Fischer, No. 1:11-cv-02694-SAS (S.D.N.Y. Dec. 16, 2015), at 11, 21, 23, http:// www.clearinghouse.net/chDocs/public/PC-NY-0062-0011.pdf.
97 Settlement Agreement, Ashker v. Brown, 4:09-cv-05796-CW (N.D. Cal. Sept. 1, 2015), at 10-11, http:// www.clearinghouse.net/chDocs/public/PC-CA-0054-0024.pdf.
98 Settlement Agreement, United States v. Virgin Islands, No. 1:86-cv-00265-WALGWC (D.V.I. Aug. 31, 2012), at 11, http://www.clearinghouse.net/chDocs/public/PC-VI-0002-0020.pdf.
99 Consent Decree, DePriest ex rel. C.B. v. Walnut Grove Corr. Auth., 3:10-cv-00663-CWR-FKB (S.D. Miss. Mar. 26, 2012), at 12, http://www.clearinghouse.net/chDocs/public/JI-MS-0007-0004.pdf.
100 Settlement Agreement, Peoples v. Fischer, No. 1:11-cv-02694-SAS (S.D.N.Y. Dec. 16, 2016), at 42-44, http:// www.clearinghouse.net/chDocs/public/PC-NY-0062-0011.pdf.
101 Supplement Consent Decree on Mental Health Care, Use of Force and Classification, Presley v. Epps, supra note 86, at 8.
102 E.g., Settlement Agreement, Ashker v. Brown, supra note 83, at 8-10.
103 Id. at 11.
104 E.g., Settlement Agreement, Peoples v. Fischer, supra note 96, at 10.
105 527 U.S. 581 (1999).
106 Id. at 600-01.
107 Samuel R. Bagenstos, The Past and Future of Deinstitutionalization Litigation, 34 CARDOZO L. REV. 1, 39 (2012).

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108 Sheryl A. Larson, FY 2013 Residential Information Systems Project Highlights, RESIDENTIAL INFORMATION SYSTEMS PROJECT, slide 20 (Feb. 11, 2016), https://risp.umn.edu/media/download/cms/media/ risp/RISP_FY_2013_Highlights.pdf.
109 Data provided by Ted Lutterman, Senior Director, Government & Commercial Research, National Association of State Mental Health Program Directors Research Institute. Email on file with author (Mar. 24, 2016). Data for 2000 comes from NIMH and Substance Abuse and Mental Health Services Administration (SAMHSA), Additions and Resident Patients at End of Year, State and County Mental Hospitals, by Age and Diagnosis, by State, United States, which is reported, as well, in Ronald W. Manderscheid et al., American Mental Health Services: Perspective Through Care Patterns for 100 Adults, with Aggregate Facility, Service, and Cost Estimates, inPUBLIC MENTAL HEALTH 383 (William W. Eaton ed., 2012). Data for 2014 is from NASMHPD Research Institute (NRI) State Mental Health Agency Profiles System, 2015.
110 Bagenstos, supra note 107, at 34. 111 Settlement Agreement, U.S. v. Delaware, No. 11-cv-591 (D. Del. July 6, 2011), at 3, http://www.clearinghouse.net/
chDocs/public/PB-DE-0003-0002.pdf. 112 Id. at 6. 113 See cases listed at Special Collection: Olmstead Cases, CIV. RIGHTS LITIG. CLEARINGHOUSE, http://
www.clearinghouse.net/results.php?searchSpecialCollection=7 (last visited May 9, 2016). 114 See supra note 33 and accompanying text. 115 18 U.S.C. § 3626(a)(1). 116 18 U.S.C. § 3626(a)(3)(A)(i). 117 18 U.S.C. § 3626(a)(3)(E). 118 18 U.S.C. § 3626(a)(3). 119 18 U.S.C. § 3626(g)(4). 120 Plaintiffs' Motion to Enforce the Court's Order, Carty v. Farrelly, supra note 58, at 4-5, http://www.clearinghouse.net/
chDocs/public/PC-VI-0001-0031.pdf. 121 Violent Criminal Incarceration Act of 1995, H.R. 667, 104th Cong. tit. IV (Enhancing Protection Against Incarcerated
Criminals) (Jan. 25, 1995). 122 141 Cong. Rec. H1479 (daily ed. Feb. 9, 1995) (Statement of Rep. Bill McCollum). 123 141 Cong. Rec. H1480 (daily ed. Feb. 9, 1995) (Statement of Rep. Charles Canady). 124 141 Cong. Rec. H1485 (daily ed. Feb. 9, 1995) (Statement of Rep. Bill Young). 125 Prison Reform: Enhancing the Effectiveness of Incarceration: Hearing on S. 3, S. 38, S. 400, S. 866, S. 930, and H.R.
667 Before the S. Comm. on the Judiciary, 104th Cong. 3 (1995) (statement of Sen. Orrin G. Hatch). 126 Id. at 9 (statement of Sen. Bailey Hutchison).

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127 Id. at 12. 128 Id. at 30 (statement of former Att'y Gen. William P. Barr). 129 See18 U.S.C. § 3626(a).

6 UMRSJLR 1

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EXHIBIT E

Case: 1:20-cv-02134 Document #: 26-6 Filed: 04/06/20 Page 2 of 7 PageID #:301

142 Cong.Rec. Sl0576-02 1996 WL 522797 (Cong.Rec.) (Cite as: 142 Cong. Rec. 810576-02)

Page 1

Congressional Record --- Senate Proceedings and Debates of the 104th Congress, Second Session
Monday, September 16, 1996
*Sl0576 CRIME IN AMERICA
Mr. COVERDELL.
Mr. President, undoubtedly, Senator Dole's emphasis on taking crime head-on is an outgrowth of a circumstance over the last 3 years that has just turned sour on us. It has been alluded to, but I want to cite some of the facts that have developed in the last 36 months.
First of all, I want to make it clear that there can be no doubt about it that, in the last 36 months, the United States has found itself, once again, in a massive drug epidemic. It is fueling and will continue to fuel crime. Just to cite this, in the last 36 months, marijuana use is up 105 percent, LSD is up 130 percent, cocaine up 160 percent. Somebody in the administration suggested that, actually, drug use is down. I have no idea where that data is coming from, but it must be a single source, because every other source has documented that drugs were up in virtually every category. The sad thing, Mr. President, is that they are kids.
In the last epidemic, during the 1960's and 1970's, it was a target group from about 16 to 20. It has dropped, which is such a tragedy. Now the ensnarement is occurring at age 8 to 13. This country is going to feel the impact of that for a long, long time. One in every 10 kids is using drugs.
Drug prosecutions are down 12 percent. This administration cut 625 drug agents. Federal spending on drug interdiction has been cut by 25 percent. The drug czar's office was reduced by 83 percent. On the list of national security threats, compiled by the National Security Council, this administration moved illegal drugs from No. 3, as a threat, to No. 29 out of 29.
Now, Mr. President, can there be any wonder that our children are getting the wrong message, and that they no longer think drugs are a risk, and that, therefore, they are using them in record numbers, and that, therefore, we have an epidemic, and that, therefore, we are having the emergence of a new crime wave?
Mr. President, we have been joined by one of our colleagues that has been in the center of this controversy during his entire time, which is since 1994. The distinguished Senator from Michigan is already making an impact in this area of vital concern across our cotmtry:.
I yield up to 15 minutes to the Senator from Michigan.
PitESIDENT CLINTON'S VETO BY LAWYERING
Mr. ABRAHAM.
Mr. President, I thank the Senator from Georgia, again. for his efforts to bring us
together here to focus on vari9us vital matters before the Senate and before the Ameri~an
people.
Mr. President, I have taken.the floor on several previous occasions to discuss the problem of abusive prison litigation and thie congrese' eff6rts to attack that problem.

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142 Cong.Rec. Sl0576-02 1996 WL 522797 (Cong.Rec.) (Cite as: 142 Cong. Rec. 810576-02)

Page 2

The last time I did so was April 19, 1996. At that time, I expressed my disappointment that President Clinton had just vetoed the Commerce-Justice- State appropriations bill.
Contained in that bill was the Prison Litigation Reform Act, a carefully crafted set of provisions designed to stem the tide of prison litigation.
In my view, this was a very important piece of legislation. Lawsuits by prisoners and lawsuits over prison conditions were completely out of hand.
One figure captures the situation very well. In fiscal year 1995, prisoners- inmates in prison-filed 63,550 civil lawsuits in our Federal court system. That is a little over one-quarter of all the civil lawsuits filed in Federal courts that year. It's also far more than the 45,788 Federal criminal prosecutions initiated that fiscal year.
In short, Mr. President, we saw, in fiscal year 1995, prison lawsuits outnumber prosecutions under our Federal system and account for one-quarter of all the lawsuits brought in this country in the Federal system.
One prisoner sued because he had been served melted ice cream. For this he claimed $1 million in damages. Fortunately, the judge ruled that the right to eat frozen ice cream was not one of those the Framers of the Constitution had in mind.
Another sued because when his dinner tray arrived, the piece of cake on it was "hacked Up. II
A third sued demanding LA Gear or Reebok "Pumps" instead of Converse tennis shoes. This kind of abusive litigation is not only frivolous, it costs money and cost the taxpayers a lot of money.
The National Association of Attorneys General estimated that the States were spending about $81 million to battle cases of the sort I just described-this even though the States win 95 percent of these cases early in the litigation for reasons that are obvious.
We were determined to do something about this problem in the Congress, so as part of the Commerce-State-Justice appropriations bill in 1996 we passed the Prison Litigation Reform Act. This legislation charged prisoners a fee for filing any lawsuit, while making it possible for the prisoners to pay that fee in installments. If a prisoner filed more than three frivolous cases, however, the prisoner would no longer be able to pay the filing fee in installments. He or she would have to pay the full fee up front, unless a court found this would create imminent risk of bodily harm.
In addition, prisoners who filed frivolous lawsuits would lose their good time credits, thus making their stay in prison longer. And judges were given authority to screen out frivolous cases on their own.
The legislation was designed to put an end to another aspect of the prison litigation problem: Seizure by Federal judges of the power to run prison systems. These seizures have consequences that range from the ridiculous to the disastrous.
In my own State of Michigan, judicial orders resulting from Justice Department lawsuits have resulted in *Sl0577 Federal courts monitoring our State prisons to determine how warm the food is, how bright the lights are, whether there are electrical outlets in each cell, whether the prisoners' hair is cut by licensed barbers-this despite the fact that no court has ever found that any of these conditions regarding which it is giving orders violate the Constitution.

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142 Cong.Rec. Sl0576-02 1996 WL 522797 (Cong.Rec.) (Cite as: 142 Cong. Rec. S10576-02)

Page 3

The orders issued by a judge in Philadelphia were even worse. There a Federal judge had been overseeing what had become a program of wholesale releases of up to 600 criminal defendants per week. Why? To keep the prison population down to what the judge considered an appropriate level. Thousands of the released defendants were then rearrested for new crimes including in one 18-month period 79 murders, 90 rapes, 959 robberies, 2,215 drug dealing charges, 701 burglaries, 2,748 thefts, and 1,113 assaults.
In the interest of justice and public safety, we wanted to stop this, and the means were simple and fully in keeping with everyone's rights. We simply required in that same Prison Litigation Reform Act that no judge could take over a prison without first holding that it had violated the Constitution and explaining how the order was necessary to correct the violation. We also directed that the judge give due regard to public safety in deciding what kinds of remedies to require. And we established stringent limits on the power of the courts to order prisoners released. Existing orders would have to meet these new standards. If they did not, they would have to be dissolved immediately on motion of the prison authorities, unless the court found that the orders were necessary to correct an on-going violation of a Federal right.
Unfortunately, President Clinton vetoed that legislation. At the time, the President said his veto had nothing to do with our prison litigation proposals. Instead, he said, he was vetoing the bill over other matters.
We took the President at his word and included our proposals in a second piece of legislation. This time, the President signed the legislation. Unfortunately, the President's top ranking officials in the Department of Justice seem intent on inventing a new kind of veto, veto by lawyering.
This effort started almost as soon as the ink from the President's signing pen was dry. A mere 11 weeks after signing the bill, his Department of Justice was filing briefs all around the country that would undermine the clear intent of our legislation. The briefs claimed that, far from requiring the courts to stop running the prisons for the comfort of prisoners, that law authorized them to continue to do so indefinitely.
Thus, according to President Clinton's Justice Department, Federal judges should continue to tell Michigan how warm the food should be, how bright the lights have to be, and who should cut the prisoners' hair. And by the logic of their position, judges should also continue to dictate prison population size and order excess prisoners released-this even if the Constitution contains no such requirement and even if the release orders jeopardize public safety. At least they should do this while they are investigating whether the prison ever violated any provision of the Constitution, an investigation that can take quite a bit of time.
The Department of Justice has come up with a host of legal theories to explain why the reform act should be read to require indefinite judicial supervision of prisons for the benefit of prisoners. It is difficult to say which is more ludicrous, the original or the current theory. The original theory, now abandoned in the face of questions from Members of this body and the National Association of Attorneys General, was that the phrase "violation of a Federal right" includes violations of the very decrees the reform act was adopted to end.
The current theory stands on its head the reform act's requirement that existing decrees be automatically stayed 30 days after a motion to end one has been filed unless there has been a final ruling on the motion.
According to the current Justice Department theory, this requirement in fact means the decrees are not automatically stayed, and, indeed, that nothing should happen to them at

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Page 4

all until the court conducts its own exhaustive inquiry as to whether conditions at the prison have ever violated any constitutional provision.
These theories are unpersuasive, Mr. President. Even Judge Harold Baer, the subject of some attention for his theory that running away from the cops gave no grounds for reasonable suspicion, rejected these theories and ended judicial rule at Riker's Island. Judges there had been dictating such crucial matters as the brand and exact concentration of cleanser to be used in certain areas.
The theories are ludicrous but the end result is not. These interpretations make a mockery of this Congress, they make a mockery of the law, and they make a mockery of the American people's desire to have prisons run to promote the public order, not to promote the comfort of our prisoners.
Further, even if they desperately try to protect existing decrees, President Clinton's Department of Justice continues to threaten exactly the kinds of lawsuits the reform act was supposed to end.
For example, a mere 4 days after President Clinton signed the reform act, the Assistant Attorney General for Civil Rights threatened to sue Gov. Parris Glendening of Maryland over conditions in Maryland's supermaximum security prison. Supermaxes are reserved for the most dangerous prisoners, murderers and rapists who continue their violent behavior in prison.
What were the egregious unconstitutional conditions that led President Clinton's Assistant Attorney General for Civil Rights to threaten suit? The fact that supermax prisoners are not allowed to socialize enough and are not getting enough outdoor exercise. The Department calls these conditions unconstitutional because they are the "mental equivalent of putting an asthmatic in a place with little air to breathe."
Fortunately, this particular veto by lawyering will ultimately succeed only if President Clinton's Justice Department persuades the courts to go along with it. I do not expect that it will.
So far the results are not promising for the Justice Department. So far, the judges who have decided these issues, interestingly, all of them Democratic appointees who had either taken over the running of prisons themselves or had inherited them from a predecessor who retired, rejected half the arguments urging them to retain control.
Mr. President, other parts of the Reform Act, the ones designed to cut back on individual prisoner lawsuits, which President Clinton's Department of Justice has no role in enforcing, already are showing their effects. Prisoner filings since the bill's enactment have declined sharply. Nevertheless, the Department of Justice, through its attempted veto by lawyering, is delaying and undermining the effectiveness of critical portions of the Reform Act. The Judiciary Committee will be holding a hearing on this matter next week.
It is my intention to propose an amendment to whatever proves to be the most appropriate legislation, either this year's Commerce-State-Justice appropriations bill or perhaps another omnibus appropriations bill, that clarifies once and for all it is time for abusive prison litigation to end, whether it is brought by prisoners or by President Clinton's Department of Justice.
It is unfortunate we must clarify once again the clear intent of such recently enacted legislation. But public safety and the costs of our prison system are too important for us to allow this inappropriate veto by misinterpretation.

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142 Cong.Rec. S10576-02 1996 WL 522797 (Cong.Rec.) (Cite as: 142 Cong. Rec. 810576-02)

Page 5

In short, I am here today to say that if we are truly serious about getting tough with crime, we ought to begin immediately to take the Prison Litigation Reform Act and administer it in the exact clear sense that Congress intended it to be administered.
That is not happening today. I am extraordinarily disappointed by it. I intend to be on the floor as often as necessary to bring about the correct interpretation of that legislation or to add new legislation that eliminates any possibility of misinterpretation in the future. Prisons should be tough time for prisoners and the rights of victims should take priority.
That is what I believe everybody in this Chamber is committed to doing, and if necessary we will have to enact more legislation to get the job done. But I am very disappointed in the actions of the Department of Justice to *Sl0578 date because it is certainly inconsistent with what we demand and what the American people I believe want to see happen in the area of prison reform.
I thank the Senator from Georgia.
The PRESIDING OFFICER.
The Senator from Georgia.
Mr. COVERDELL.
I wonder if the Senator from Michigan would stay just a moment to see if I get the sequence of these events down. We had a condition of legal frivolity-if you froze an ice cream or not. I think any American who would hear this just would be dumbfounded. But your legislation put an end to that and put an end to judicial management of prisons. And the President vetoed that.
Mr. ABRAHAM.
That is correct.
Mr. COVERDELL.
Then you came back again, passed the essence of this legislation, and he signed it, but his Justice Department has subsequently been engaged in an overt attempt to undo it?
Mr. ABRAHAM.
That is accurate. I would say to the Senator from Georgia, we were told when the first veto occurred, because this legislation was included in a broader bill, that the legislation, the Prison Litigation Reform Act, was not the basis for the veto; that, in fact, it was supported.
When the second bill was signed, we assumed the Justice Department would seek to make sure the provisions of that Litigation Reform Act would be enacted and followed by the courts. Instead, what we have seen is the Department of Justice intervening in lawsuits in a way that would, in fact, preclude, rather than allow, States to extricate themselves from these various judicial circumstances where judges were running the prison systems with no clear evidence of a constitutional violation ever having occurred. Instead, we find the Justice Department finding ways to allow the judges to stay in charge and to allow for various things such as we have seen around the country, where these prisoner lawsuits are growing in number, where judges are requiring prisons and State authorities to expend millions of taxpayer dollars simply to ensure and improve the comfort of

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142 Cong.Rec. S10576-02 1996 WL 522797 (Cong.Rec.) (Cite as: 142 Cong. Rec. 810576-02)

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prisoners. We think that is the wrong direction. 142 Cong. Rec. 810576-02, 1996 WL 522797 (Cong.Rec.) END OF DOCUMENT

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EXHIBIT F

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Judicial Impact Statement
:
Vidlent Criminal Incarceration I
Act of 1995 ! i ' ; : H.R. 667 I

..
.

P' repare!'~

by:

The J\udicial Impact Office
l i
The Administrative Office of the U.S. Courts I !
)
June 21~ 199$ I !

Case: 1:20-cv-02134 Document #: 26-7 Filed: 04/06/20 Page 3 of 15 PageID #:309
JUDICIAL IMPACT STATEMENT Violent Criminal Incarceration Act of 1995
H.R. 667
OVERVIEW
The Violent Criminal Incarceration Act of 1995 (H.R. 667) addresses federal court jurisdictional and administrative issues covering prisoners. These include: (1) requirements that prisoners must fully exhaust state administrative remedies prior to filing a federal lawsuit; (2) significant restrictions on federal court relief related to conditions in prisons, jails, and juvenile detention facilities; (3) expanded ability for certain individuals to oppose the imposition or continuation of remedial relief through new provisions on standing and intervention; (4) automatic time limits for specific forms of prospective relief; (5) mandated requirements and significant new roles for magistrate judges regarding oversight of prison condition cases; and (6) restrictions on attorneys' fees in such cases.
The total impact of the bill could not be quantified. For many provisions, this impact statement provides only an initial assessment or examples of the resource
consequences to the judiciary if this bill were enacted. However, the related costs
could be extremely high. For example, the potential annual resource costs of title Ill, which covers court-ordered relief in prison condition cases, could be more than $239 million and 2,096 positions, of which at least 280 would be judicial officers (Article Ill judges and/or magistrate judges). At least $95 million could be incurred if just 50 percent of the nearly 4,000 existing prison conditions consent decrees and court orders were refiled in federal court subsequent to their
termination under this bill. More than $144 million in resource costs could be
incurred by the judiciary if just 2,000 prisoners in each of the 100 prison condition cases with the largest numbers of named plaintiffs were required to testify individually as to how the alleged prison conditions affected them specifically.
Given the total nationwide prison population and all of the existing consent ._____ dE:lcrees and court orders that could be subject to court review and termination
every two years~ the actual and recurring costs could be much greater. Title Ill's requirements that only federal magistrate judges could perform fact~finding in such cases would also radically alter the role and workload of both magistrate judges and
Article Ill. judges, affecting allocation of costs and resources.
The impact of title I of the bill, which would give prison construction grants to states that enact ''truth-in-sentencing" laws, could not be assessed, given the uncertainty of which states would qualify for these grants and their potential construction timetables. Additional prison facilities could result in additional prisoner litigation at the federal level. It could also have some effect on prisoner release and recidivism rates if more prisoners are incarcerated for longer periods and cannot commit federal crimes. Title II of the bill requires prisoners to fully exhaust state

Case: 1:20-cv-02134 Document #: 26-7 Filed: 04/06/20 Page 4 of 15 PageID #:310
administrative remedies before filing a section 1983 civil rights action in federal court.
This requirement could affect the number of such filings. However, based on the conflicting experiences of several states, where similar requirements both increased
and decreased filings, the impact of this provision was unclear.
As mentioned in the example above, title Ill could be enormously expensive. In addition, the title would impose strict limitations on the ability of federal courts to fashion, approve or impose remedies in prisoner civil rights cases.
No direct federal court impact would be expected from title IV (restrictions on federal prisoner use of strength training and related equipment), title V (potential restrictions relating to federal prison amenities), title VI {community service projects), or title VII (prison commissary administration). This statement provides an in-depth analysis of only titles II and Ill, because those titles would have the most significantly effect on the federal judiciary.
ANALYSIS OF TITLES II ANO Ill
If the entire bill were enacted, several ·of the provisions within titles II and Ill
would have significant interacting effects. The interrelated effects of these titles and other provisions prevent the development of precise estimates of the total resource impacts associated with this bill. The potential workload and resource projections presented herein generally assume full implementation of the legislation.
In order to develop better estimates of the potential caseload and resource effects of this bill, the Federal-State Jurisdiction Committee of the Judicial Conference of the United States requested that this office conduct an empirical
survey of 15 federal court districts identified as processing considerable levels of
prisoner civil rights litigation (Prisoner Litigation Survey). This survey requested specific data on various related issues, such as: the total number of major, systemic prison condition cases and the specific condition issues involved; estimates of the
of ·number witnesses and total trial time in such cases; classification of how many
cases were resolved by court order or consent decree; identification of background of individuals appointed as special masters or monitors; breakouts of how many consent orders included judicial findings of constitutional violations; and other appropriate questions. The data received was incorporated into the impact analysis of specific provisions of the bill or otherwise correlated with other available sources of information.
2

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•stopping Abusive Prisoner Lawsuits" (Title II, Sections 201, 202, 204)
Title II of this bill contains several modifications and restrictions on the prisoner petition process. Section 201 would prohibit a section 1983 civil rights
action (42 U.S.C. § 1983) if the petitioning prisoner had not completely exhausted all
available administrative remedies, where the remedies had been approved or certified as provided for under current law.
In accordance with current law (42 U.S.C. § 1997e), several states have recently implemented institutional grievance procedures that would allow a district court to continue a prisoner civil rights case to allow for the exhaustion of such remedies. These programs, which are similar to those proposed in section 201, have had mixed results. Some states reported that by extending the administrative remedy process, some additional grievances were resolved at the state level or by the time the administrative process was over, some prisoners believed it was no longer necessary to file petitions in the federal courts. Other states contend that extending the administrative process had little effect on the number of prisoner petitions ultimately filed in the federal courts. As a result of this conflicting data, the change in the number of section 1983 prisoner petitions which would be filed in federal court under proposed section 201 could not be estimated.
Section 202 would direct federal courts to dismiss any frivolous or malicious section 1983 action, or such actions that fail to state a claim upon which relief may be granted, brought by an adult convicted of a crime and confined in any jail, prison or other correctional facility. Section 204 would require that any prisoner filing such a suit include a statement of all assets in his or her possession so the court can require a full or partial payment of filing fees based on the prisoner's ability to pay.
These provisions would not prevent the actions from being filed in federal court. They would only allow the court to dismiss the action at an earlier point in the process. A substantial portion of the judiciary1s costs related to these types of cases is incurred in the initial filing and review stage prior to any dismissal ~. filing and noticing activities, docket preparation). Possibly, the requirement to pay a filing fee may affect a prisoner's decision to file the action.
During FY 1994, almost 39,100 federal and state prisoner petition civil rights cases' were filed in federal court at an estimated resource cost of $49.7 million and 508 judiciary positions. Although title II could reduce the number of petitions filed or r~duce court review before the petition could be dismissed, any savings would be at
1 nJudicial Business of the U.S. Courts, 1994 Report of the Director," Table C-2.
3

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least partially diminished by the increase in resources necessary to review the prisoner statements of assets and to process separate partial payments of filing fees. For this reason, the total resource savings .could not be developed.
"Stop Turning Out Prisoners11 Act (Title Ill, Section 301)
This title would impose strict limitations on the ability of federal courts to fashion, approve or impose remedies in prisoner civil rights cases. There could also be dramatic and continuing increases in the number of proceedings related to requests for termination of court ordered relief in such cases. The judiciary costs and resources associated with these provisions could be enormous.
Section 301 (a) of this title contains substantial amendments to section 3626 of title 18, United States Code,2 relating to court remedies in prison conditions litigation. Section 301 (b) would make these amendments retroactive to all orders, consent decrees and other relief, regardless of whether the relief was originally granted or approved before, on, or after the date of the enactment of this bill. A detailed summary of each significant proposed amendment or group of related amendments contained in this section and the related potential effect on the federal courts follows:
Subsection 3626(al (1) - Limitations on Court-Ordered Relief in Prison Condition Cases - This subsection states that a court's ability to issue 11[p]rospective relief in a civil action with respect to prison conditions shall extend no further than necessary to remove the conditions that are causing the deprivation of the Federal rights of individual plaintiffs in that civil action.11 (emphasis added) Furthermore, the court would not be able to grant or approve any prospective relief. "unless the court finds that such relief is
to narrowly drawn and the least intrusive means remedy the violation of the
Federal right." In determining the overall intrusiveness of any such relief, the court must give "substantial weight to any adverse impact on public safety or the ope.ration ·af a· criminal justice system caused by the relief."
Subsection 3626(a) (2) - Restrictions on Court-Ordered Relief In Prison Overcrowding Cases - This subsection states that in any civil action with respect to prison conditions, "the court shall not grant or approve any relief whose purpose or effect is to reduce or limit the prison population, unless the
2 Section 3626, enacted as part of last year's major crime legislation Niolent Crime Control and Law Enforcement Act of 1994, P.L. 103-322 (108 Stat. 1796, Sept 13, 1994), concerned appropriate remedies with respect only to prison crowding litigation.
4

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plaintiff proves that crowding is the primary cause of the deprivation of the Federal right and no other relief will remedy that deprivation!' (emphasis added)

The overall effect of both of these provisions would be to restrict severely the

ability of federal courts to fashion, approve or impose remedies in many prisoner

civil rights class action cases. The potential impact on the federal courts could be

substantial, incurring millions of dollars in annually recurring resource costs,

depending on how the intent of Congress and these provisions are interpreted and

implemented.

·

The most recent census of state and federal prisoner population indicated

there arerabout 1.2 million inmates3 located in a roximatel

.. 4

te

prisons an

e era prisons.5 As of January 1, 1994, thirty-nine states, the District

~

-Of Columbia, .Puerto Rico, and the Virgin Islands had one or more prisons operating

~- ./'

under at least one consent decree or court order for an approximate total of 323

~· ~

state prisons (at this time, no federal prisons are under a court order or consent

~\...; ~

decree).8 Of the 3,270 jails nationwide, about 320 are operating under a court order

~

or consent decree. Other data suggests that 131 of the country's lamest 503 jailf4 ;-"\1 ~

are also operating under at least one consent decree or court order.7 Precise

estimates are not available as to the overall number of court orders and consent

decrees that have be.en issued. Best interpolation of available data suggests there..,

·orrelation of information contained in two documents: U.S. Department of Justice,
0 ice of Justice Programs, Bureau of Justice Statisti~ Bulletin, Jail Inmates 1992, Aug.
1993, p.2. (Jail Inmates Bulletin);· and U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Census of State and Federal Correctional Facilities 1990, May 1992, NCJ-137003, p.1 (Correctional Facilities Census). This analysis uses the Bureal! of Justice Statistics' definition of a "jail": a locally operated correctional facility that confines persons before or after adjudication. Inmates sentenced to jail usually have a sentence of a year or less, but jails also incarcerate persons in a variety of other categories @g,· transfers to prisons, probation and parole violators, temporary detention of juveniles). Jail Inmates Bulletin, p.2.

• Estimate provided by representative of the American Jail Association.

5 Correctional Facilities Census, p. 1, Table 1.

8 Data contained in report provided by the American Bar Association, Section of

Criminal Justice, "An Analysis of the 'Stop Turning Out Prisoners Act'[sic]" (Feb. 17, 1995},

p.3.

'

ii Inmates Bulletin, p.5.

5

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are about 1,470 court orders8 and approximately 2,500 consent decrees9 covering_
--prison and jail facilities The best available information indicates that the majority of
these court orders and consent decrees were imposed or approved by federal courts.10 About 1,030 of these nearly 4,000 court orders and consent decrees specifically address crowding conditions in prisons and jails as the sole or primary issue. 11
As discussed in further detail in the following section, it is likely that substantial numbers, if not the majority, of existing orders and consent decrees will be subject to termination, either soon after enactment (upon motion of a defendant or intervenor under subsection 3626(b}(2)) or over the two-year period following enactment of this Act (under subsection 3626(b)(1)). Most motions for termination
will require at least an initial hearing and many will require substantial evidentiary
hearings if the court is to determine whether the previously-ordered relief continues to be necessary. It is also likely that given the restrictions on availability of attorneys' fees set forth in section 3626(e), very few of the potentially many cases that would be filed following automatic termination will be settled out-of-court.
According to various judiciary studies on caseweight factors and current workload measurement formulas, major· prison condition class action civil rights cases are most likely to involve appointed counsel, are often extremely timeconsuming and require extensive use of judicial resources, even when taking into account that usually only a small percentage of the individual petitioners or members of the named class of. prisoners actually testify.12 Based on these caseweights and

8 orrelation of data obtained from Bureau of Justice Statistics, "Sourcebook of Criminal

1

·cs

-

1991

11 1

Table

1.98 (BJS

Sourcebook 1991) and from

Jail

Inmates

Bulletin,

p.5.

8 orrectional Facilities Census, Table 1o, applying ratios consistent with data received
ootnote 7.

10 See tl.i U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics~ Challenging the Conditions of Prisons and Jails: A Report on Section 1983 Litigation, January 1995, NCJ-151652, p. 1, fn. 1 (Section 1983 Litigation Report). This information was also supported by discussions with representatives of the ACLU National Prisoner Project, the National Center for State Courts, the American Jail Association, and the Bureau of Prisons, as well as by data received in response to the Prisoner Litigation Survey.

11 Correctional Facilities Census, p.7; and BJS Sourcebook 1991, Table 1.98.

12 See M. Section· 1983 Litigation Report, pp. 22-27 and accompanying reference list, pp. 45-46. Many of the findings of these studies were supported by the data received in
response to the Prisoner Litigation Survey.

6

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work formulas, the cost of just reopening, producing required findings and deciding
whether to continue previously-ordered relief or issue new decrees in 100 such
cases would be about $4.77 million and 45.3 positions.
However, the judiciary's costs would be significantly higher if the court must make individual findings and hear testimony from each affected plaintiff, as may be intended under this section. For example, if 2,000 members of a
prisoner class action were required to individually testify, the total resource cost to
the judiciary would be at least $1.44 million and 11.9 positions for just one case.
Even if the court were able to hear from six witnesses per day (taking into account
time for testimony and cross·examination), it could take more than 330 days or more than 1.6 court years for a judge (district and/or magistrate judge, depending on the allocation of workload) to hear evidence from each member of the class action.13
It is not known exactly how many such cases would be filed in federal court each year. Assuming, however, that such prisoner class actions (whether refiled
after termination under subsection 3626 or newly initiated) were filed against just 100 of the largest correctional facilities or systems and 2,000 prisoners in each of these cases were required to testify individually as to how the alleged prison conditions affected them specifically (200,000 potential plaintiffs), the total annual resource costs to the judiciary would be about $144 million and 1,190 positions. More than 160 of these positions would be judicial officers, working full-time on these cases each year. These costs can be several times greater. considering the total nationwide prison population and the thousands of existing prison and jail consent decrees and court orders that could be subject to court review and termination within the first two years after enactment, as discussed herein.
As mentioned previously, the group of individuals covered by any courtordered relief may be limited to the named prisoner litigants. Other prisoners not
specifically part of the initial class action as well as new inmates might not receive any remedies or benefits from the resolution of these cases. This situation alone could generate thousands of additional suits seeking the same relief or outcome.
13 Based on current workload measurement formulas and confirmed by data received from the Prisoner Litigation Survey. These numbers assume that only one judge works fulltime on each of these cases; the length of the trial could be reduced significantly if more than one judge is assigned to the case on more than a part-time basis.
7

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Subsection 3626{b)(1) - Automatic Termination of Prospective Relief - This subsection provides that in any civil action on prison conditions. any prospective relief shall automatically terminate two years after the later of either: (1) the date the court found the violation of a federal
right that was the basis for the relief; or (2) the date of enactment of
this legislation.
Subsection 3626{b)(2} - Immediate Termination of Prospective Relief - This subsection provides that in any civil action on prison conditions. a defendant or intervenor shall be entitled to immediate termination of any prospective relief, if that relief was approved or granted in the absence of a finding by the court that prison conditions
violated a Federal right." (emphasis added)
Subsection 3626(c} .. Procedure for Motions Affecting Prospective Relief - Part 1 of this subsection requires courts to rule promptly on any motion to modify or terminate prospective relief with respect to prison conditions. Part 2 provides that any prospective relief subject to a pending motion would be automatically stayed during the period beginning either 30 to 180 days after the motion is filed (depending on the nature of the motion), ending when the court enters a final order
ruling on the motion.
Subsection 3626(d) - Expansion of Provisions on Standing and Intervention - This subsection grants standing for the purpose of opposing any relief whose purpose or effect is to reduce or limit prison population to the following persons: any federal, state, or local official or unit of government, whose jurisdiction or function includes the prosecution or custody of persons in the prison at issue, or who may otherwise be affected by the population-limiting relief. Such persons are also authorized to intervene in any proceeding relating to such relief. Standing is to.P~t~lit?erally .conferred under this subsection so as
. - ...... "t() effeciuata·:·the remedial purposes of this section."
The net effect of these four provisions would be to increase dramatically the
number of proceedings related fo requests for termination of court ordered relief,
whether immediately or within the first two years after enactment of this Act, regardless· of whether remedies related to such orders were implemented.
This would especially be the case with respect to consent decrees. Such decrees are typically used as a means of settling prison litigation without an explicit finding by the court of a federal violation. The parties typically include in the
8

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consent decree a statement to the effect that the defendants, by agreeing to settle the case, are not admitting that the conditions of confinement in the correctional facility are unconstitutional. This statement is included in the consent decree so that the decree is not used against correctional officials in other lawsuits contesting the conditions of confinement. Best available information indicates that the majority of such consent decrees do not contain a finding of a constitutional violation.1' In
several ways, this legislation creates various disincentives for the parties to enter into
consent decrees.
Under these provisions, court orders and consent decrees covering conditions in correctional facilities that may or may not have been rectified are likely to be the target of motions seeking immediate termination. If termination occurs, the inmates at those facilities would probably bring additional lawsuits {either class actions or individual petitions) to resolve issues and conditions that have previously been the subject of remedial relief but have never been rectified, in the opinion of the affected prisoners.
As stated earlier, Bureau of Justice Statistics data indicate that there are at least 1,030 court orders and consent decrees affecting prisons and jails that are primarily related to crowding conditions. Motions to stay prospective relief in a majority of these crowded condition cases could be filed very shortly after
enactment of these provisions. Even if there were no immediate and specific
motions, subsection 3626{b)(1) would automatically terminate all of the nearly 4,000 existing court orders and consent decrees within two years after enactment.
Best available information indicates that the majority of existing court orders and consent decrees were imposed or approved by federal courts, but the actual percentage could not be determined. It is also unknown how many of these cases would be refiled and what percentage in state or federal court. In many instances, the main issues or problems may already be near full compliance or resolution and the only continuing oversight of the facility is minimal. For these situations, there might not be any apparent or urgent need for a new lawsuit to be filed. As
mentioned previously, current caseweights and work measurement formulas indicate
that the cost of reopening just 100 such cases, producing the required findings and
issuing new court decrees would be about $4.n million· and 45.3 positions.

1 •

This supposition is based on background information received from representatives

of various national correctional associations and summary reports issued by the ACLU's

National Prison Project. The Prisoner Litigation Survey conducted by this office supported

this supposition, indicating that fewer than 17% of all consent decrees contained findings of

a constitutional violation.

9

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In order to illustrate the potential effect of these provisions, if only 50 percent of the nearly 4,000 total number of consent decrees and court orders affecting prisons and jails were the subject of new litigation and filed in federal courts, the cost to the judiciary would be more than $95.4 million and 906 positions. More than 126 of these positions would be judicial officers (district judges and/or magistrate judges). If the judiciary were to re-adjudicate just 50 percent of the existing 1,030 orders and decrees related specifically to prison population conditions, the cost would approach $24.6 million and 233.3 positions. Given the available data, these may be conservative estimates of the total impact on the federal courts.
As mentioned previously, these costs are based on current caseweights and work measurement formulas. The costs would be significantly higher if the court must make individual findings and hear testimony from each affected prisoner, as set forth in the previous discussion of subsections 3626{a}(1} and (2}. The costs also do not take into account the effects from the mandated .role of magistrate judges set forth in subsection 3626{e}, below.
Subsection 3626(e) - Mandated Use of Magistrate Judges As Special Master or Monitor - This subsection requires that in any civil
action in federal court with respect to prison conditions, if a special
master or monitor is to be appointed, such individual must be a United States magistrate judge. In addition, the magistrate judge would be limited to making proposed findings on the record on complicated factual issues submitted by the court, and would be prohibited from
any other function, even if the parties consented.
This provision would place great demands on magistrate judges in particular and by extension, the rest of the federal judicial system.15 Magistrate judges would be responsible for these functions rather than the wardens, correctional superintendents, and other correctional experts who generally serve as court monitors at the present time. In time, especially given the likelihood that most existing court orders and consent decrees will be reopened (as discussed above),
15 This section also appears to contravene certain fundamental jurisdiction provisions of
the Federal Magistrates Act (28 U.S.C. § 636). One interpretation of the section contends that magistrate judges would be prohibited from handling non-case-dispositive and casedispositive motions, as well as pretrial conferences in prisoner cases. In addition, many magistrate judges currently handle prisoner cases with the consent of the parties and may act with full dispositive authority equal to a district court judge; this practice may be prohibited or restricted under this proposed section. This impact statement does not provide cost analyses of these potential effects of the legislation.
10

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magistrate judges might be appointed as special masters or monitors in hundreds of prison condition cases, at a minimum.18
Under certain circumstances, magistrate judges could find that overseeing just one major correctional facility or a few prisons and jails could become a full-time occupation, leaving little or no time to devote to other duties. 11 This scenario is highly probable considering the approximately 660 largest state and local correctional facilities currently operating under court orders or consent decrees and the many thousands of prisoners in those institutions. · Magistrate judges are an integral part of the judiciary, handling a significant part of the civil and criminal caseload. In response to the overall effects of this provision and the rest of title Ill, the judiciary would either be required to seek funding for substantially more magistrate judge positions, or else request additional district judgeships to assume the additional workload. The absence of additional resources may substantially delay other criminal and civil proceedings within the federal courts.
A precise estimate cannot be developed on the number of existing and future court orders and consent decrees that may use magistrate judges exclusively for fact-finding activities and monitoring of prison and jail conditions. Best available information indicates that a special master or monitor is appointed in at least 20% of all prison condition cases settled by a court order or consent decree.18 For
HI Available statistical and other agency workload data indicates that very few magistrate judges are currently appointed as special masters or monitors in these cases. The Prisoner Litigation Survey indicated that magistrate judges comprised fewer than 10% of the total number of special master or monitor appointments in major prison condition· cases.
11 In one recently concluded major prison condition court action, for example, it is estimated that the court-appointed special master (an expert in prison management) and three assistants will have to spend approximately 3-6 months full-time on a plan to implement the court-ordered remedies. If instead, this work had to be done by one magistrate judge (without staff or assistants), it could take 2-4 years of his or her time working exclusively on this one case.
Relatedly, fees for the cost of special masters can be paid by the parties to the litigation, specifically the state or local government party to the case. Under this bill,
however, if only magistrate judges can be special masters, the federal courts are in effect
the sole entity paying for this function.
18 This 20% estimate is based on responses to the Prisoner Litigation Survey. Additional research is being conducted to further substantiate and correlate this percentage estimate with similar information previously collected by the American Correctional Association (a summary of this information Is presented as Table 1.92 of the Bureau of
11

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illustrative purposes, approximately four magistrate judges (plus about 15.6 immediate support positions and about an additional five indirect administrative support positions), at an annual cost of about $2.47 million would be required to perform 100 such monitoring activities. If magistrate judges were used to monitor about 20 percent {800) of the nearly 4,000 existing court orders and consent decrees on a fulf·time basis, as many as 32 magistrate judges, and about 125 immediate support staff positions and 40 indirect support positions would be required, at an annual cost of approximately $19.4 million. If additional magistrate judges are not available to perform duties in criminal and other civil cases, additional district judges will be needed to take on this increased workload. The equivalent resource cost of 32 Article Ill judges (including about 173 immediate and indirect support staff positions) would be $22.3 million.
Subsection 3626(f) - Limitations on Attorneys' Fees - This subsection would limit the availability of attorneys' fees under 42 U.S.C. § 1988 in prison condition cases, by allowing attorneys' fee awards only to the extent that the fees are directly and reasonably incurred in proving an actual violation of the plaintiff's federal rights and are proportionally related to the extent the plaintiff obtains court ordered relief for that violation. (emphasis added)
This provision could have several effects on the judiciary, none of which can be precisely quantified at this time. For example:
1) Fewer attorneys may agree to initially take on these cases. More prison condition cases may be filed without the assistance of counsel. Such pro se cases are usually more difficult and time consuming for the courts to process.
2) By limiting attorneys' fees to those costs incurred in "proving an actual violation,11 enforcement of remedies may become more difficult and time consuming for the courts. Obtaining a court order is often only the beginning phase of a prison condition suit. while monitoring and enforcement of the remedies may take several years. If plaintiffs are prohibited from collecting attorneys' fees for the often drawn-out enforcement phase of the lawsuits, attorneys may not remain with a case once relief is granted. This situation could also increase the workload of both Article Ill and magistrate judges, since oversight of
Justice Statistics' "Sourcebook of Criminal Statistics - 1993").
12

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the implementation of the order may become a court function under subsection (e}. 3) If attorneys' fees are restricted for these specific cases, attorneys may attempt to recoup their time investments by bringing additional personal contingency fee lawsuits, on behalf of their clients, against the individuals (e.g., prison guards, wardens, doctors, etc.} who were responsible for the specific conditions found to be unconstitutional. The cost of 100 such lawsuits in federal court would be about $567,000 and 5.6 positions. In any event, it is anticipated that these restrictions on the availability of attorneys' fees will reduce the incidence of settlement agreements being reached in most prison conditions cases. The effect of this provision as it interrelates with sections 3626(a) and (b) has already been discussed.
Analytical Assumptions The cost estimates presented above reflect the full or partial resource costs to
the judiciary of implementing specific provisions. These estimates include the resource cost of existing judicial officers, their direct staff and associated support activities that would contribute to handling the projected caseload ~. court security, automation and administrative support) .19 The bill does not consider creating new federal judgeships; therefore, the costs associated with appointing new judicial officers and hiring staff related to this new workload are not included.
19 Some of t~ese specific support costs could increase substantially due to the types of cases that may be generated under this bill, especially court security costs; these increases could not be quantified and were not included in the cost totals.
13

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EXHIBIT G

Case:C1a:2s0e-c1v:2-002-c1v3-400D4o8c0u-mJEeJnt #D:o2c6u-m8 eFnilte4d7: 04F/i0le6d/2003P/3a1g/e202 oPf a2g6eP1agoef I2D5 #:323

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-480 Hon. John E. Jones III

MEMORANDUM AND ORDER March 31, 2020
Pending before the Court is the Motion for Temporary Restraining Order and/or Preliminary Injunction filed by Petitioners-Plaintiffs Bharatkumar G. Thakker, Abedodun Adebomi Idowu, Courtney Stubbs, Rigoberto Gomez Hernandez, Rodolfo Augustin Juarez Juarez, Meiling Lin, Henry Pratt, Jean HErdy Christy Augustin, Mayowa Abayomi Oyediran, Agus Prajoga, Mansyur, Catalino Domingo Gomez Lopez and Dexter Anthony Hillocks (collectively “Petitioners”).1 (Doc. 7). The Motion has been briefed by the parties. (Docs. 12; 35; 46). The Court has received an amicus brief from a group of public health officials and human

1 Petitioners’ counsel advised that Mayansur and Agus Prajoga were released from immigration detention on March 27, 2020. (Doc. 33). Accordingly, their request for release from custody is moot.
1

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rights experts, (Doc. 36), as well as a factual update and supplemental authority filed by Petitioners. (Docs. 33 and 34). Thus, this matter is ripe for our review.
For the reasons that follow, the temporary restraining order shall be granted and the Respondents shall be directed to immediately release Petitioners today on their own recognizance.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are
being held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Thakker is 65 years old and suffers from high blood pressure and cholesterol and has kidney failure. Further, he is currently suffering from symptoms similar to those of COVID-19. (Doc. 2, Ex. 3). Idowu, 57, had type II diabetes as well as high blood pressure and cholesterol. He is also currently sick. (Doc. 2, Ex. 4). Stubbs is 52 years old and is immunocompromised due to a kidney transplant he received 6 years ago. He has a heart stent and also suffers from type II diabetes and blood clots. (Doc. 2, Ex. 5). Hernandez, 52, suffers from diabetes, dental problems and an
2

Case:C1a:2s0e-c1v:2-002-c1v3-400D4o8c0u-mJEeJnt #D:o2c6u-m8 eFnilte4d7: 04F/i0le6d/2003P/3a1g/e204 oPf a2g6eP3agoef I2D5 #:325
ulcer. (Doc. 2, Ex. 7). Juarez, 21, suffers from diabetes and is currently sick with COVID-19 type symptoms, including trouble breathing. (Doc. 2, Ex. 8). Lin is 45 years old and suffers from chronic pain due to a forced sterilization, as well as chronic hepatitis B and liver disease. (Doc. 2, Ex. 9). Pratt, age 50, suffers from diabetes and high blood pressure. (Doc. 2, Ex. 10). Augustin, 34 years old, suffers from multiple conditions including diabetes, high blood pressure, nerve pain, limited mobility and pain from a prior bladder and intestine reconstruction, anemia, PTSD and depression. (Doc. 2, Ex. 11). Oyediran is a 40-year-old asthmatic suffering from high blood pressure and cholesterol. (Doc. 2, Ex. 12). Lopez, age 51, has contracted the flu four times while in ICE custody since November of 2018 and is concerned that he is especially susceptible to contracting COVID-19. (Doc. 2, Ex. 15). Finally, Hillocks, age 54, has been diagnosed with leukemia. He also suffers from diabetes, anemia, high blood pressure and cholesterol. (Doc. 2, Ex. 16).
Several Petitioners have reported symptoms similar to those of COVID-19. None have been quarantined, isolated, or treated. (Doc. 2 Exs. 3; 4; 8).
Named as Respondents are: Clair Doll, Warden of York County Prison; Angela Hoover, Warden of Clinton County Correctional Facility; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona Flores-Lund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting
3

Case:C1a:2s0e-c1v:2-002-c1v3-400D4o8c0u-mJEeJnt #D:o2c6u-m8 eFnilte4d7: 04F/i0le6d/2003P/3a1g/e205 oPf a2g6eP4agoef I2D5 #:326
Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION In a matter of weeks, the novel coronavirus COVID-19 has rampaged across
the globe, altering the landscape of everyday American life in ways previously unimaginable. Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home. Indeed, we now live our lives by terms we had never heard of a month ago—we are “social distancing” and “flattening the curve” to combat a global pandemic2 that has, as of the date of this writing, infected 719,700 people worldwide and killed more than 33,673.3 Each day these statistics move exponentially higher. It is against this increasingly grim backdrop that we now consider the Petitioners’ claims for habeas relief.

2

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

3

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed March 31,

2020).

4

Case:C1a:2s0e-c1v:2-002-c1v3-400D4o8c0u-mJEeJnt #D:o2c6u-m8 eFnilte4d7: 04F/i0le6d/2003P/3a1g/e206 oPf a2g6eP5agoef I2D5 #:327
A. Threshold Questions: Standing and the Propriety of a Habeas Petition
Respondents raise two threshold challenges to the Petitioners’ Motion. First, Respondents contend that Petitioners lack standing because they have not alleged an injury in fact. Next, Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Taking the latter challenge first, we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014); see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978). Accordingly, we find that Petitioners have appropriately invoked this court’s jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.
Respondents’ standing challenge can also be easily resolved. Respondents essentially contend that because the Petitioners themselves do not have COVID-19 and their likelihood of contracting the illness is speculative, Petitioners cannot establish that they would suffer a concrete, non-hypothetical injury absent a temporary restraining order. However, as the Supreme Court observed in Helling v. McKinney, 509 U.S. 25, 33 (1993), “it would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” The COVID-19 pandemic is moving rapidly and expansively throughout Pennsylvania. Vast regions of the
5

Case:C1a:2s0e-c1v:2-002-c1v3-400D4o8c0u-mJEeJnt #D:o2c6u-m8 eFnilte4d7: 04F/i0le6d/2003P/3a1g/e207 oPf a2g6eP6agoef I2D5 #:328
Commonwealth are now under stay-at-home orders, and social distancing the norm to prevent the spread of this deadly virus. And yet, Respondents would have us offer no substantial relief to Petitioners until the pandemic erupts in our prisons. We reject this notion. Since “[a] remedy for unsafe conditions need not await a tragic event,” it is evident that the Petitioners have standing in this matter. Id.
B. Temporary Restraining Order i. Legal Standard
Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the
6

Case:C1a:2s0e-c1v:2-002-c1v3-400D4o8c0u-mJEeJnt #D:o2c6u-m8 eFnilte4d7: 04F/i0le6d/2003P/3a1g/e208 oPf a2g6eP7agoef I2D5 #:329
movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
ii. Irreparable Harm To succeed on their Motion, Petitioners “must demonstrate. . .the probability of irreparable harm if relief is not granted.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal quotations omitted). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial”. . .the temporary restraining order. . .“must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it is likely to suffer “actual or imminent harm which cannot otherwise be compensated by money damages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank’s GMC, 847 F.2d at 103. The mere risk of injury is insufficient. The moving party must establish that the harm is imminent and
7

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probable. Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). Additionally, “a showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992).
The Petitioners’ claim is rooted in imminent, irreparable harm. Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. It is not unlikely that COVID-19 is already present in some county prisons—we have before us declarations that portions of the Facilities have been put under ineffective quarantines due to the presence of symptoms similar to COVID-19 among the inmate population.4 Indeed, we also have reports that a correctional officer at Pike has already tested positive for COVID-19. (Doc. 33 at 1).
Public health officials now acknowledge that there is little that can be done to stop the spread of COVID-19 absent effective quarantines and social distancing procedures. But Petitioners are unable to keep socially distant while detained by

4

We also have allegations that prison guards have shown symptoms while interacting with

inmates.

8

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ICE and cannot keep the detention facilities sufficiently clean to combat the spread of the virus. Based upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners’ specific medical concerns, detailed below, we therefore find that Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.
a. Seriousness of the virus COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading easily and sustainably in the community.” 5 Experts believe that it can live on some surfaces for up to 72 hours after contact with an infected person.6 A simple sneeze or brush of the face without washing your hands is now known to easily spread the virus, which generally causes fever, cough, and shortness of breath. (How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL; Doc. 12 at 15). In most people, these symptoms are relatively mild. (Doc. 12 at 15). However, the effects of COVID-19 can be drastically more severe in older individuals or those with medical conditions. (Doc.2, Ex. 2). In some cases, COVID-19 can cause serious, potentially permanent, damage to lung tissue, and

5

How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed March 31,

2020).

6

New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH (March

17, 2020), https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-

surfaces.

9

Case:C1a:2s0e-c1v:2-002-c1v3-400D4o8c0u-mJEeJnt #D:o2c6u-m8 eFnilte4d7: 04F/i0le6d/2003P/3a1g/e2011Poaf g2e6 1P0agoef I2D5 #:332
can require extensive use of a ventilator. (Id.). The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.). These long-term consequences and the likelihood of fatality increase in those of advanced age and those with other medical conditions, like the Petitioners here. (Id.). For those in high-risk categories, the fatality rate is thought to be approximately fifteen percent. (Id.).
There is currently no vaccine for COVID-19, nor are there known, clinically-tested therapeutic treatments. (Id.). As a result, public health officials have touted the importance of maintaining physical separation of at least six feet between individuals, now commonly known as “social distancing.” (Id.). Experts have also emphasized that proper hand hygiene with soap and water is vital to stop the spread. (Id.). Beyond these measures, health professionals can do little to combat this highly infectious disease. (Id.).
b. Prevalence of the virus The United States now records more confirmed cases of COVID-19 than any other country in the world.7 As of the date of this writing, there were in excess of

7

Nicole Chavez, Holly Yan, and Madeline Holcombe, US has more Known Cases of

Coronavirus than any Other Country, CNN,

https://www.cnn.com/2020/03/26/health/coronavirus-thousand-deaths-thursday/index.html (last

accessed March 31, 2020).

10

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164,458 cases of the virus in America, with 3,167 fatalities.8 This represented an increase of 2,651 cases in only twenty-four hours. (Id).
Indeed, Pennsylvania currently reports 4,087 confirmed cases of COVID-19, with 48 fatalities.9 Troublingly, that number represents nearly double the confirmed cases reported a mere four days ago—on March 27, 2020, Pennsylvania reported a total of 2,218 cases, with 22 deaths. Id. The three counties which house the Facilities are located in York County, Pike County, and Clinton County. They currently report a total of 93 cases: 54 in York County and 39 in Pike County.10 Clinton County has not yet reported any confirmed cases of COVID-19. Id. As of March 27, 2020, the Governor of Pennsylvania placed both York County and Pike County under a stay-at-home order in an attempt to slow the spread of the virus.11

8

Niko Kommenda, Pablo Gutiérrez, and Juweek Adolphe, Coronavirus Map of the US:

Latest Cases State by State, THE GUARDIAN, https://www.theguardian.com/world/ng-

interactive/2020/mar/27/coronavirus-map-of-the-us-latest-cases-state-by-state (last accessed

March 31, 2020).

9

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

10

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

11 Governor Wolf and Health Secretary Expand ‘Stay at Home’ Order to Nine More Counties to Mitigate Spread of COVID-19, Counties Now Total 19, WEBSITE OF THE GOVERNOR OF PENNSYLVANIA, https://www.governor.pa.gov/newsroom/governor-wolf-and-healthsecretary-expand-stay-at-home-order-to-nine-more-counties-to-mitigate-spread-of-covid-19counties-now-total-19/ (last accessed March 31, 2020).

11

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Average Pennsylvanians in these counties can no longer leave their homes for anything but essential trips to gather supplies, medications, or to perform work essential to our national infrastructure—COVID-19 spreads so easily and rapidly that public health officials have determined that social isolation is necessary to keep our hospital systems from becoming overwhelmed. Id. The same rationale applies, perhaps even more so, to immigration detention facilities housing highrisk populations.
c. Unique nature of detention facilities Various public health officials have warned that the nature of ICE detention facilities makes them uniquely vulnerable to the rapid spread of highly contagious diseases like COVID-19. COVID-19 is transmitted primarily through “close contact via respiratory droplets produced when an infected person coughs or sneezes.” (Doc. 12 at 18; Doc. 2, Ex. 1). Immigration detention facilities are particularly at risk for such close contact because they are considered “congregate settings, or places where people live or sleep in close proximity.” (Doc. 2, Ex. 1). Such conditions provide “ideal incubation conditions” for COVID-19. (Id.). Within the past few weeks, two medical experts for the Department of Homeland Security authored a letter to Congress warning of the unique dangers COVID-19 poses to ICE detention facilities. Specifically, they described the current ICE detention environment as a “tinderbox” in which:
12

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[a]s local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community. . .To be more explicit, a detention center with a rapid outbreak could result in multiple detainees — five, ten or more — being sent to the local community hospital where there may only be six or eight ventilators over a very short period. . .As [hospitals] fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc).12
The experts contrasted this scenario with a situation in which ICE detainees were
released from “high risk congregate settings,” allowing the “volume of patients sent
to community hospitals to level out,” which they believed would provide much more
favorable outcomes, both for the detainees and the surrounding communities. Id. “At
a minimum,” these health experts urged, the government “should consider releasing
all detainees in high risk medical groups such as older people and those with chronic
diseases.” Id. ICE detention facilities, they warned, are so poorly equipped to allow
safe social distancing practices and are unlikely to have the ability to provide
adequate medical care in the case of a COVID-19 outbreak. Id. The consequences,
they maintain, could be disastrous. Id.
12 Catherine E. Shoichet, Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention, CNN, https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/ (last accessed March 28, 2020).
13

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Indeed, we have before us declarations stating that such high-risk conditions are present in the detention facilities at issue in this case. Both Petitioners and lawyers familiar with the ICE facilities at issue here have attested to overcrowding that makes social distancing impossible at all three facilities. At the York facility, for example, inmates are housed in dormitory-style conditions, in which 60 people reside in each housing block. (Doc. 2, Ex. 18). That space is used for both eating and sleeping. (Id.). Petitioners report that not even the medical staff wear gloves when in contact with inmates. (Doc. 2, Ex. 11). Detainees must eat their meals four-to-atable, with approximately three feet of space between individuals. (Id.).
At Clinton, inmate bunks are often less than two feet apart, and inmate declarations show that it is difficult to keep more than a two feet distance between inmates, let alone the recommended six feet. (Doc. 2, Ex. 10). The laundry facilities at Clinton are also reported to be chronically broken, preventing detainees from keeping their clothes and bedding clean. (Id.). Indeed, for a total of 72 men, Clinton provides only four sets of sinks and showers. (Id.). The Facility is also reported to have bugs mice, and rats, which add to the unsanitary conditions experienced by detainees. (Id.).
At Pike, detainees share eight-by-ten or twelve foot cells with two other men. (Doc. 2, Ex. 13). Those cells also contain a sink and a shower. (Id). Some men at Pike report being forced to share cells with other individuals currently exhibiting
14

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COVID-19 symptoms or report exhibiting symptoms themselves while housed with other inmates. (Doc. 2, Exs. 3; 4; 8). Inmates at Pike are also usually forced to remain within two feet of other individuals, even while in the common areas of the facility. (Doc. 2, Ex. 4). They are also required to buy their own soap, are not given hand sanitizer, and are forced to share cleaning supplies with an entire block of cells. (Doc. 2, Exs. 3; 13).
ICE guidance states that these types of risks are mitigated by quarantining detainees with symptoms and by housing those with a higher risk of exposure separately from the rest of the detainee population. (Doc. 2, Ex. 1). The Respondents further proffer that the Facilities are practicing “cohorting,” an “infection prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic.” (Doc. 35 at 12). This practice is meant to last for fourteen days, the duration of the virus’s incubation period. The Petitioner’s declarations, however, show that these practices are not being followed. At least two Petitioners aver that they are experiencing symptoms and have not been isolated from other individuals. (Doc. 2, Exs. 3; 4; 8). Furthermore, all Petitioners have a higher risk of exposure, and none have been moved to separate housing. Indeed, it does not even seem that ICE is providing detainees with proper information on how they can combat the virus on their own. (Doc. 2, Ex. 3). Troublingly, some facilities seem to have shut off detainee access to news outlets,
15

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thereby preventing the detention facility’s population from informing themselves on best practices to prevent transmission. (Doc. 2, Ex. 5).
d. Petitioners are at uniquely high risk for contracting COVID-19
Not only are the Facilities themselves uniquely suited to rapidly spread COVID-19, but also Petitioners themselves are members of high-risk groups that are likely to feel the effects of the virus more keenly than the average individual.13 Each of the Petitioners before us has an underlying medical condition that heightens their risk of serious COVID-19 effects, among them asthma, diabetes, heart conditions, hepatitis, and immunocompromising conditions such as leukemia and organ transplants.
e. The threat to high-risk individuals posed by COVID-19 constitutes irreparable injury
Various courts across the nation have found that COVID-19, coupled with the lack of hygiene and overcrowding present in detention facilities, will pose a greatly heightened risk to inmates. See Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir.

13

People at Risk for Serious Illness from COVID-19, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-

groups/high-risk-complications.html (“Older people and people of all ages with severe

underlying health conditions—like heart disease, lung disease and diabetes, for example—seem

to be at higher risk of developing serious COVID-19 illness”); Information for Healthcare

Professionals: COVID-19 and Underlying Conditions, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-

conditions.html (stating that “moderate to severe asthma,” “heart disease,” “obesity,” and

“diabetes” are conditions that trigger higher risk of severe illness from COVID-19).

16

Case:C1a:2s0e-c1v:2-002-c1v3-400D4o8c0u-mJEeJnt #D:o2c6u-m8 eFnilte4d7: 04F/i0le6d/2003P/3a1g/e2018Poaf g2e6 1P7agoef I2D5 #:339
Mar. 23, 2020) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”); United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large— created by large prison populations. Notably, the chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)).
Courts have also acknowledged the particular risks facing older inmates and those with underlying medical conditions. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial
17

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detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk the pandemic poses to his health. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelterin-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
Indeed, courts have even specifically held that COVID-19 constitutes an irreparable harm that supports the grant of a TRO. See Vasif “Vincent” Basank, et al v. Decker, 2020 WL 1481503 at *4-5 (S.D.N.Y. March 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO”); Castillo v.
18

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Barr, CV-20-00605-TJH (C.D. Cal. 2020) (granting a TRO to immigration detainees due to the COVID-19 pandemic); see also Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (finding irreparable harm “premised ... upon [the district court’s] finding that [Petitioner] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services. . .certainly constitutes irreparable harm.”).
The painful new reality is that we are constantly at risk of contracting a deadly virus and are experiencing previously unimagined safety measures to stop its spread. This virus spares no demographic or race and is ruthless in its assault. The precautions being adopted to stop it should apply equally, if not more so, to the most vulnerable among us. Petitioners have shown that adequate measures are not in place and cannot be taken to protect them from COVID-19 in the detention facilities, and that catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities. We therefore find that the likely irreparable injury to Petitioners, as high-risk individuals, satisfies the first element of our TRO analysis.
iii. Likelihood of Success on the Merits Petitioners argue that their continued incarceration in ICE detention facilities exposes them to serious risks associated with COVID-19 which violate their due
19

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process rights. (Doc. 2 at 27). We find that Petitioners are likely to succeed on the merits of their claim.14
To bring a Fifth Amendment due process claim, Petitioners must show that their conditions of confinement “amount[ed] to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). In other words, we must ascertain whether the conditions serve a legitimate purpose and whether the conditions are rationally related to that legitimate purpose. Hubbard 538 F.3d at 232.
Considering the Facility conditions previously discussed, we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would
14 The Respondents argue that Petitioners do not have a legitimate due process claim because they have no “liberty or property interest” in a purely “discretionary grant of humanitarian parole.” (Doc. 35 at 28). We disagree. “Unsanitary, unsafe, or otherwise inadequate conditions” are sufficient to state a Due Process Claim and we shall thus proceed with our analysis. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); Grohs v. Lanigan, No. 16-7083, 2019 WL 1500621, at *11 (D.N.J. Apr. 5, 2019) (“extreme heat combined with lack of potable water, as well as generally unsanitary conditions” are sufficient to state a conditions-of-confinement claim).
20

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constitute a punishment to Petitioners. Despite the Respondents’ protests to the contrary, we need not find that the Facilities had the “express intent” to punish Petitioners with the conditions alleged. (Doc. 35 at 37). Instead we ask whether the conditions are rationally related to a legitimate government objective. Hubbard 538 F.3d at 232. Here, they are not.
The Respondents maintain that “preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective.” (Doc. 35 at 38). They cite a great deal of authority supporting this point, and we do not disagree. (Id.). However, we cannot find that unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission, are rationally related to that legitimate government objective.
Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.
The global COVID-19 pandemic and the ensuing public health crisis now faced by American society have forced us all to find new ways of operating that prevent virus transmission to the greatest extent possible. We expect no less of ICE.
21

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We note that ICE has a plethora of means other than physical detention at their
disposal by which they may monitor civil detainees and ensure that they are present
at removal proceedings, including remote monitoring and routine check-ins.
Physical detention itself will place a burden on community healthcare systems and
will needlessly endanger Petitioners, prison employees, and the greater community.
We cannot see the rational basis of such a risk.15
We therefore find that Petitioners are likely to succeed on the merits of their
due process claim that their conditions of confinement expose them “to serious risks
associated with COVID-19.” (Doc. 2 at 35).
15 Moreover, not only have Petitioners established a likelihood of success on the merits on their Fifth Amendment claim, but, in fact, they have also demonstrated that their claim is likely to be successful under the more exacting Eighth Amendment standards as well. To succeed in proving that conditions of confinement violate the Eighth Amendment, a plaintiff must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively “sufficiently serious.” Furthermore, the Supreme Court has recognized authorities can be “deliberately indifferent to an inmate’s current health problems” where they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. Instead, if Petitioners can show that the conditions “pose an unreasonable risk of serious damage to their future health,” they may succeed on their claim. Helling, 509 U.S.at 35) (alteration omitted). The current measures undertaken by ICE, including “cohorting” detainees, are patently ineffective in preventing the spread of COVID-19. Indeed, we now have reports of a positive test amongst the employees at Pike County prison, thereby greatly increasing the likelihood that COVID-19 is present in the prison population.
22

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iv. Balancing of the Equities and Public Interest The equities at issue and public interest weigh heavily in Petitioners’ favor. First, and as described, Petitioners face irreparable harm to both their constitutional rights and their health. Second, we find that the potential harm to the Respondents is limited. While we understand and agree that preventing Petitioners from absconding and ensuring their presence at immigration proceedings is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic. Finally, the public interest favors Petitioners’ release. As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and
23

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the release of these fragile Petitioners from confinement is one step further in a positive direction.
III. CONCLUSION In times such as these, we must acknowledge that the status quo of a mere
few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.
Respondents’ Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result. Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners’ plight. And so we will act.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility shall be ordered to immediately
24

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release the Petitioners today on their own recognizance without fail. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 7), is GRANTED.
2. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance.
3. This TRO will expire on April 13, 2020 at 5:00 p.m. 4. No later than noon on April 7, 2020, the Respondents shall SHOW
CAUSE why the TRO should not be converted into a preliminary injunction. 5. The Petitioners may file a response before the opening of business on April 10, 2020.
s/ John E. Jones III John E. Jones III United States District Judge
25

Case: 1:20-cv-02134 Document #: 26-9 Filed: 04/06/20 Page 1 of 16 PageID #:348
EXHIBIT H

CaseC: a1s:2e04-c:0v1-0-c2v1-30413D5o1c-uJSmTentD#o:c2u6m-9enFtil3e2d6: 104/F06ile/2d00P4a/0g4e/220ofP1a6gPea1geoIfD15#:349

1

IN THE UNITED STATES DISTRICT COURTS

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

AND THE NORTHERN DISTRICT OF CALIFORNIA

4

UNITED STATES DISTRICT COURT COMPOSED OF THREE JUDGES

5

PURSUANT TO SECTION 2284, TITLE 28 UNITED STATES CODE

6

7

RALPH COLEMAN, et al.,

8

Plaintiffs,

9

v.

Case No. 2:90-cv-0520 KJM DB P THREE-JUDGE COURT

10

GAVIN NEWSOM, et al.,

11

Defendants.

12

MARCIANO PLATA, et al.,

13

Plaintiff,

Case No. 01-cv-01351-JST THREE-JUDGE COURT

14

v.

15

GAVIN NEWSOM, et al.,

16

Defendants.

ORDER DENYING PLAINTIFFS’ EMERGENCY MOTION TO MODIFY POPULATION REDUCTION ORDER

17 Before: WARDLAW, Circuit Judge, MUELLER, Chief District Judge, and TIGAR, District Judge

18

We are living in unprecedented times. The spread of COVID-19 is a global crisis, a crisis

19 that is heightened in the most vulnerable groups among us. One such group is before us today.

20 Plaintiffs, two classes of inmates incarcerated in California state prisons, have filed a motion

21 asking us to order the state to release an unspecified, but significant, number of prisoners so that

22 the prison population can be reduced to a level sufficient to allow physical distancing to prevent

23 the spread of COVID-19—which, in Plaintiffs’ view, requires that prisoners who live in dorm-

24 style environments be housed six feet apart from one another. ECF No. 3219/6522.1

25

While we cannot know with certainty due to the pathogenesis of the virus, it appears that

26

27 1 All filings in this Three-Judge Court are included in the individual docket sheets of both Plata v.

28

Newsom, No. 01-cv-01351-JST (N.D. Cal.), and Coleman v. Newsom, No. 2:90-cv-0520 KJM DB P (E.D. Cal.). The Court cites to the docket number of Plata first, then Coleman.

CaseC: a1s:2e04-c:0v1-0-c2v1-30413D5o1c-uJSmTentD#o:c2u6m-9enFtil3e2d6: 104/F06ile/2d00P4a/0g4e/230ofP1a6gPea2geoIfD15#:350

1 COVID-19 has not yet surged in California’s prisons. Thus far, only thirteen inmates have

2 confirmed cases of the disease. Cal. Dep’t of Corr. & Rehab., Population COVID-19 Tracking,

3 https://www.cdcr.ca.gov/covid19/population-status-tracking/ (last visited Apr. 4, 2020). And, to

4 their credit, Defendants2 have already taken steps to combat the virus, including taking measures

5 to reduce the prison population. But given the undisputed risk of further contagion in a carceral 6 environment,3 Plaintiffs’ desire to maximize the reduction in the state’s prison population is

7 understandable.

8

We conclude, however, that under Federal Rule of Civil Procedure 60(b)(5) and the Prison

9 Litigation Reform Act (PLRA), 18 U.S.C. § 3626, Plaintiffs’ emergency motion for relief based

10 on COVID-19 is not properly before us. This three-judge court was first convened in 2007 to

11 consider a different issue: whether a release of prisoners was necessary to remedy California’s

12 structural failure to provide constitutionally adequate medical and mental health care services to

13 inmates incarcerated in the state’s prisons. We are therefore bound to deny Plaintiffs’ motion.

14 However, we do so without prejudice to Plaintiffs’ seeking relief in a procedurally appropriate

15 forum, including the individual Coleman and/or Plata courts.

16 I. FACTUAL AND PROCEDURAL BACKGROUND

17

A. Procedural History

18

Given the exigency of the circumstances before us, we provide only a brief procedural

19 history here.4 The proceedings before this three-judge court began long ago as two separate cases:

20 Coleman, filed in 1990 in the Eastern District of California, alleged that Defendants were failing

21 to provide constitutionally adequate mental health care services to inmates with serious mental

22 disorders. Plata, filed in 2001 in the Northern District of California, alleged that Defendants were

23

24 2 Defendants are various California state officials, including Governor Gavin Newsom.

25

3 See, e.g., 167 Inmates at Cook County Jail Confirmed Positive for COVID-19, Chi. Sun Times (Apr. 1, 2020), https://chicago.suntimes.com/coronavirus/2020/4/1/21203767/cook-county-jail-

26

coronavirus-positive-covid-19 (reporting that 167 pre-trial detainees housed at the Cook County, Ill. jail tested positive for COVID-19 over a ten-day span).

27 4 The history of these proceedings is chronicled more thoroughly in a 2009 order of our court,

28

Coleman v. Schwarzenegger, 922 F. Supp. 2d 882 (E.D. Cal./N.D. Cal. 2009), and the Supreme Court’s decision in Brown v. Plata, 563 U.S. 493 (2011).

2

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1 failing to provide constitutionally adequate medical care.

2

The individual Coleman and Plata courts entered numerous remedial orders, including

3 appointing a Special Master to oversee remedial efforts in Coleman and a Receiver to take control

4 of the medical care delivery system in Plata. These measures failed to cure the constitutional

5 deficiencies, and in 2007, both courts concluded that, absent a reduction in the state prison

6 population—which was then almost double the prison system’s design capacity—Defendants

7 would never be able to deliver constitutionally adequate medical and mental health care.

8

Because they were not individually empowered to order a release of prisoners from

9 California’s prisons, the Plata and Coleman courts granted Plaintiffs’ separate motions to convene

10 a three-judge court to consider the issue. See 18 U.S.C. § 3626(a)(3)(B) (providing that a prisoner

11 release order can be entered only by a three-judge court). The Chief Judge of the United States

12 Court of Appeals for the Ninth Circuit appointed this three-judge court in both cases to determine 13 whether a release order was appropriate.5 See Brown v. Plata, 563 U.S. 493, 500 (2011)

14 (“Because the two cases are interrelated, their limited consolidation for this purpose has a certain

15 utility in avoiding conflicting decrees and aiding judicial consideration and enforcement.”).

16

After holding a fourteen-day trial, we concluded that a significant reduction in the state

17 prison population was the only way to bring Defendants into compliance with their constitutional

18 obligations to provide adequate medical and mental health care services. See generally Coleman

19 v. Schwarzenegger, 922 F. Supp. 2d 882 (E.D. Cal./N.D. Cal. 2009) (“Coleman I”). We therefore

20 ordered Defendants to reduce California’s prison population to 137.5% design capacity within two

21 years. Id. at 970.

22

Defendants appealed, and the Supreme Court affirmed.6 Plata, 563 U.S. 493. The Court

23 held that the PLRA’s requirements for entering a prisoner release order were satisfied, see 18

24

25 5 The original members of the three-judge court, the Hon. Stephen Reinhardt, Circuit Judge; the

26

Hon. Lawrence K. Karlton, District Judge; and the Hon. Thelton E. Henderson, District Judge, have since been replaced by its current members: the Hon. Kim McLane Wardlaw, Circuit Judge;

27 the Hon. Kimberly J. Mueller, Chief District Judge; and the Hon. Jon S. Tigar, District Judge.

28

6 By statute, a three-judge district court order granting a permanent injunction may be appealed directly to the Supreme Court. 28 U.S.C. § 1253.

3

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1 U.S.C. § 3626, and that there was ample evidence supporting our conclusion that crowding was

2 the primary cause of the constitutional violations in California’s delivery of medical and mental

3 health services in its prison system. Plata, 563 U.S. at 517–530. It also concluded that the

4 137.5% population cap we ordered was “narrowly drawn, extend[ed] no further than necessary to

5 correct the violation of [the] federal right, and [was] the least intrusive means necessary to correct

6 the violation,” and that we gave appropriate “substantial weight” to public safety, as the PLRA

7 requires. Id. at 530–41; see 18 U.S.C. § 3626(a). At the same time, the Supreme Court

8 recognized our ability to modify our remedial order as necessary:

9

The three-judge court, however, retains the authority, and the

responsibility, to make further amendments to the existing order or

10

any modified decree it may enter as warranted by the exercise of its

sound discretion. “The power of a court of equity to modify a decree

11

of injunctive relief is long-established, broad, and flexible.” New

York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956,

12

967 (C.A.2 1983) (Friendly, J.). A court that invokes equity’s power

to remedy a constitutional violation by an injunction mandating

13

systemic changes to an institution has the continuing duty and

responsibility to assess the efficacy and consequences of its order. Id.,

14

at 969–971. Experience may teach the necessity for modification or

amendment of an earlier decree. To that end, the three-judge court

15

must remain open to a showing or demonstration by either party that

the injunction should be altered to ensure that the rights and interests

16

of the parties are given all due and necessary protection.

17 Plata, 563 U.S. at 542–43.

18

Two years after the Supreme Court affirmed our prison population reduction order,

19 Defendants asked us to terminate that order even though they had not yet complied with it.

20 Coleman v. Brown, 922 F. Supp. 2d 1004, 1008 (E.D. Cal./N.D. Cal. 2013) (“Coleman II”).

21 Plaintiffs filed a cross-motion asking us to impose institution-specific population caps to

22 supplement the system-wide 137.5% cap that we had already ordered. Id. We denied both

23 requests. Id. We concluded, among other things, that Defendants had failed to demonstrate that

24 they could provide constitutionally adequate medical and mental health care with a prison

25 population that exceeded 137.5% design capacity. Id. at 1034–43. At the same time, we

26 concluded that Plaintiffs’ request for institution-specific caps was premature because, until

27 Defendants met the systemwide 137.5% cap, it was difficult to determine whether additional relief

28 was necessary. Id. at 1048. 4

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1

In 2015, Defendants succeeded, for the first time, in reducing the statewide prison

2 population to less than 137.5% design capacity. The population has remained below that 3 benchmark ever since.7 Since that time, we have largely stepped back as the individual Coleman

4 and Plata courts have continued to work to ensure that California provides constitutionally

5 adequate medical and mental health services to its inmates.

6

B. Plaintiffs’ Emergency Motion Based on COVID-19

7

On March 25, 2020, Plaintiffs filed the motion currently before us, which they have styled

8 as an “Emergency Motion to Modify Population Reduction Order.” ECF No. 3219/6522. The

9 motion asks us to order Defendants to release to parole or post-release community supervision

10 certain categories of inmates, including those who are scheduled to parole within a year and are

11 either (a) low risk, as determined by the California Department of Corrections and Rehabilitation’s

12 (CDCR) risk assessment tool or (b) serving time for a non-violent offense. Id. at 27. Plaintiffs

13 also ask us to require Defendants to release or relocate inmates who, because of their age or other

14 medical conditions, are at a high risk of developing a severe form of COVID-19. Id. at 27–28.

15 While Plaintiffs have not put forth a specific number of inmates that they believe should be

16 released, they argued at the April 2, 2020 telephonic hearing on this motion that Defendants must

17 release as many inmates as would be required to allow all remaining inmates to practice physical

18 distancing, especially those who reside in crowded dorm housing.

19

Although the current record is unclear as to when Defendants began planning a response to

20 COVID-19, they started implementing preventive measures at least as of March 11, 2020, when

21 normal visiting at CDCR institutions was canceled statewide, fact sheets and posters on the

22 pandemic were delivered to the inmate population, and additional hand-sanitizing dispenser

23 stations were ordered. ECF No. 3241-1/6553-1. CDCR has activated “a centrally-located

24 command center where CDCR and CCHCS [California Correctional Health Care Services] experts

25 monitor information, prepare for known and unknown events, and exchange information centrally

26

27 7 As of the most recent status report filed with us on March 16, 2020, California’s prison 28 population is at 134.4% design capacity. ECF No. 3213/6502 at 2.
5

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1 in order to make decisions and provide guidance quickly.” ECF No. 3240/6553-2 ¶ 4 (Gipson

2 Decl.). The center’s “goal is to implement measures and strategies to protect inmates and staff

3 during the COVID-19 pandemic and to enhance social distancing and housing options during this

4 time.” Id.

5

On March 24, 2020, California Governor Gavin Newsom issued an executive order

6 directing CDCR to suspend admission of inmates to state custody for 30 days, with the possibility

7 that the suspension would be extended for an additional 30 days. ECF No. 3241/6553 ¶ 4 (Diaz

8 Decl.). On March 30, 2020, CDCR Secretary Ralph Diaz announced that release would be

9 accelerated for inmates who have less than sixty days remaining on their sentence, are not serving

10 a term of incarceration for a violent felony or a domestic violence offense, and are not required to

11 register as a sex offender. Id. ¶ 5. These last two measures are expected to result in an

12 approximately 6,500-person reduction in the prison population over the coming weeks.8 Id. ¶¶ 4–

13 7.

14

Defendants oppose Plaintiffs’ motion, arguing both that their response to COVID-19 so far

15 has been constitutionally sufficient, and that the motion is not properly before this three-judge

16 court because the relief it seeks is, in substance, a new prisoner release order, rather than a

17 modification of our 2009 order imposing the 137.5% population cap. ECF No. 3235/6552.

18 II. DISCUSSION

19

Whether Plaintiffs’ motion is properly viewed as a modification request is a critical

20 question. For one, it bears on whether the motion is properly before our three-judge court. But

21 even if the motion were properly before us, the PLRA places significant restrictions on a federal

22 court’s authority to order the release of prisoners as a remedy for a constitutional violation. See 18

23 U.S.C. § 3626. For example, a prisoner release order may be entered only if “(i) a court has

24 previously entered an order for less intrusive relief that has failed to remedy the deprivation of the

25 Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has

26

27

8 Defendants have also taken additional steps to combat COVID-19, including but not limited to transferring approximately 500 inmates out of dorm housing, suspending transfers between

28

facilities, and conducting temperature checks and symptom screenings of all individuals entering the prisons. E.g., ECF No. 3240/6553-2 ¶¶ 6–11.

6

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1 had a reasonable amount of time to comply with the previous court orders.” Id.

2 § 3626(a)(3)(A)(i)–(ii). Plaintiffs argue that our 2009 order imposing the 137.5% population cap

3 satisfies the PLRA’s requirement of a prior order for less intrusive relief. ECF No. 3219/6522 at

4 31–32. If, however, the relief they seek is not actually a modification of the 2009 order but rather

5 new relief based on the new threat of harm posed by COVID-19, Plaintiffs likely cannot satisfy the

6 prior order requirement at this point because there have not yet been any orders requiring

7 Defendants to take measures short of release to address the threat of the virus; nor have

8 Defendants had a reasonable time in which to comply.9

9

In arguing that their motion properly seeks to modify our 2009 order imposing the

10 population cap, Plaintiffs rely on Federal Rule of Civil Procedure 60(b)(5), which grants courts

11 authority to “relieve a party . . . from a final judgment” if “applying it prospectively is no longer

12 equitable.” We have previously recognized that Rule 60(b)(5) may provide us with authority to

13 modify our 2009 order in appropriate circumstances. Coleman II, 922 F. Supp. 2d at 1025–27

14 (citing Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367 (1992)). But we may only modify the

15 order to the extent necessary to ensure that the remedial structure remains tailored to cure the

16 constitutional violations previously found by the Coleman and Plata courts. See id. at 1048

17 (refusing to modify the 2009 order because it was not yet clear whether the 137.5% design

18 capacity cap would be sufficient to cure the constitutional defects in Defendants’ prison health

19 care system). Rule 60(b)(5) does not provide us with free-standing authority to remedy any harm

20 Defendants may inflict upon Plaintiffs, regardless of whether it is tethered to the previous findings

21 of structural constitutional shortcomings in the delivery of medical and mental health care. Cf.

22 Parsons v. Ryan, 912 F.3d 486, 501 (9th Cir. 2018) (explaining that a modification of relief was

23 appropriate because it was not issued “in response to new violations of federal rights”).

24

Plaintiffs argue that the potential harm posed by COVID-19 is attributable to the

25 constitutional violations that have been previously found in these cases because “[p]reventing the

26 spread of a dangerous, contagious illness is plainly a requirement of an adequate medical care

27

28

9 We recognize that what is reasonable in ordinary times may be quite different from what is reasonable in these extraordinary times.

7

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1 system.” ECF No. 3248/6558 at 3–4. As a general matter, we agree that the Eighth Amendment

2 requires Defendants to take adequate steps to curb the spread of disease within the prison system.

3 Indeed, disease control is one of the areas in which the Plata court previously concluded that

4 Defendants fell short. See Coleman I, 922 F. Supp. 2d at 896. For example, the Plata court

5 previously found that the prison intake process, “which was designed to allow medical staff to

6 identify inmates’ medical issues, including communicable diseases, . . . was woefully inadequate.”

7 Id. (describing a finding of the Plata court in Plata v. Schwarzenegger, No. 01-1351-TEH, 2005

8 WL 2932254, at *12 (N.D. Cal. Oct. 3, 2005)). It also found that exam tables and counter tops

9 where prisoners with infectious diseases were treated “were not routinely disinfected or sanitized.”

10 See id. at 896 (quoting Plata, 2005 WL 2932253, at *14); see also Plata, 563 U.S. at 508 (citing

11 this fact in affirming the population cap order). Still, Defendants’ inability to control disease was

12 only one symptom of an overall failure to provide inmates with access to constitutionally adequate

13 health care services.

14

Here, however, the impetus for the release order Plaintiffs seek is different from the

15 overarching structural violations underlying the 2009 population reduction order. The specific

16 harm Plaintiffs allege is not caused by constitutional shortcomings in Defendants’ ability to

17 provide medical and mental health services. Indeed, Plaintiffs’ own expert acknowledges that

18 California’s inmates would still face a substantial risk of harm from COVID-19 “even if the health

19 care delivery system were constitutionally adequate.” ECF No. 3219-4/6524 ¶ 19 (Stern Decl.).

20 That the harm Plaintiffs face is not dependent on the existence of a constitutionally inadequate

21 health care delivery system is strong evidence that it is rooted in a significantly different

22 underlying cause than what was before us in the prior three-judge court proceedings.

23

While the threat posed by COVID-19 is undoubtedly medical, the particular risks the

24 disease poses to prisoners are primarily a function of the contagiousness of the virus and the

25 nature of incarceration. There is no vaccine for COVID-19. Thus far, the only way to stop its

26 spread is through preventive measures—principal among them maintaining physical distancing

27 sufficient to hinder airborne person-to-person transmission. See ECF No. 3221-1/6259-1 at 109

28 (CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

8

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1 Correctional and Detention Facilities) (describing physical distancing as a “cornerstone” of

2 reducing transmission of COVID-19). Creating physical distancing is uniquely difficult in a 3 congregate environment like a prison.10 Id. But crucially, this is a problem shared by all prisons,

4 not just those with foundering health care delivery systems. See id. at 107–10.

5

That is not to say that Defendants have no constitutional obligation to take steps to prevent

6 the spread of COVID-19 within California’s prisons. Defendants themselves acknowledge that

7 the virus presents a “substantial risk of serious harm” and that the Eighth Amendment therefore

8 requires them to take reasonable measures to abate that risk. ECF No. 3235/6552 at 17; see

9 Farmer v. Brennan, 511 U.S. 825, 847 (1994); Helling v. McKinney, 509 U.S. 25, 33 (1993)

10 (noting that prison officials may not “ignore a condition of confinement that is sure or very likely

11 to cause serious illness and needless suffering the next week or month or year”). But we conclude

12 that any constitutional violation in Defendants’ current response to the COVID-19 crisis is

13 different, in both nature and degree, from the violations underlying the 2009 population cap order.

14 That order was never intended to prepare Defendants to confront this unprecedented pandemic.

15 Nor could it have, given that the entire world was unprepared for the onslaught of the COVID-19

16 virus.

17

We therefore conclude that to the extent Plaintiffs can establish a constitutional violation

18 based on the threat posed by COVID-19, it must be based on shortcomings in Defendants’

19 response to the virus, not on the longstanding systemic constitutional deficiencies in California’s

20 prison health care delivery system. Because Plaintiffs’ motion seeks a release order to redress a

21 different constitutional injury than those previously found in the Coleman and Plata proceedings,

22 that relief cannot be granted through a modification to our prior remedial order.

23

There is precedent within these proceedings for our conclusion that requests for disease-

24 specific relief generally require a new Eighth Amendment analysis. In 2013, the Plata plaintiffs

25 brought a motion asking the court to order the transfer of classes of inmates who were particularly

26 at risk of developing a severe form of Valley Fever—an illness spread by airborne fungal spores—

27

28

10 Because the merits of Plaintiffs’ motion are not properly before us, we make no findings as to what level of physical distancing might be constitutionally required in a carceral environment.

9

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1 out of the prisons where the disease was most prevalent. Plata v. Brown, No. 01-cv-1351-TEH,

2 2013 WL 3200587, at *1 (N.D. Cal. Jun. 24, 2013). The plaintiffs did not bring their motion

3 under Rule 60(b)(5), nor did the Plata court treat it as a modification request. Instead, the court

4 analyzed whether Defendants’ specific responses to the threats posed by Valley Fever were

5 sufficient to satisfy the Eighth Amendment. Id. at *10–12. After concluding that they were not,

6 the Plata court granted the plaintiffs’ transfer request, tailoring the scope of relief to the contours

7 of the specific Eighth Amendment violation implicated by Defendants’ inadequate Valley Fever

8 response. Id. at *10–13.

9

The Supreme Court’s discussion of our ability to modify the 2009 population cap order

10 confirms our conclusion that the remedy Plaintiffs now seek goes to a different constitutional

11 injury than what has been litigated previously. In describing the scope of our modification

12 authority, the Court explained that it may be appropriate to grant Defendants more time in which

13 to come into compliance with the 137.5% cap if it were necessary to allow the state to develop

14 systems for identifying inmates whose release was least likely to jeopardize public safety. Plata,

15 563 U.S. at 544. It noted such an extension could be conditioned on Defendants’ “ability to meet

16 interim benchmarks for improvement in the provision of medical and mental health care.” Id. The

17 Court also explained that as Defendants made progress in reducing the prison population, it might

18 become apparent “that further population reductions are not necessary or less urgent than

19 previously believed.” Id. In those circumstances, it could be appropriate to consider whether to

20 extend or modify the requirements of the population cap order. Id.

21

In short, the Supreme Court contemplated that we could adjust our remedial order to

22 ensure that it remained appropriately tailored to its original goal: reducing the prison population to

23 a level sufficient, but no lower than necessary, to allow Defendants to deliver constitutionally 24 adequate medical and mental health care services.11 See id. at 530 (explaining that prospective

25 relief with respect to prison conditions must be “narrowly drawn” and “extend[] no further than

26

27

11 The Court’s modification ruling also encompassed the situation where Defendants reached the 137.5% goal but were still unable to provide constitutionally adequate medical care. Plata, 563

28

U.S. at 543. We have no doubt that under that scenario, we would have the power to reduce the percentage of the design capacity cap further.

10

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1 necessary to correct the violation”). We do not believe that the Court envisaged us “modifying”

2 our judgment to require an additional reduction in the prison population to respond to a unique

3 threat posed by a specific virus that could not have been foreseen only a few months ago, much

4 less at the time of the 2009 population cap order. Our discretion to modify our prior orders is not

5 boundless.

6

The cases relied on by Plaintiffs only reinforce our view that the motion before us is not an

7 appropriate modification request. In Parsons v. Ryan, the plaintiff class entered into a settlement

8 agreement with prison officials that required them to achieve at least 75 percent compliance with

9 several “health care performance measures,” including that they provide inmates with health care

10 services within twenty-four hours after a request was first made. 912 F.3d at 493–94, 499. The

11 prison system’s compliance rate with this performance measure was abysmal—as low as 34

12 percent—and after failed efforts to improve compliance, the district court issued an order requiring

13 the defendants to use community health services (i.e., services outside the prisons) to provide the

14 required care. Id. at 499. On appeal, the defendants argued that the PLRA required the district

15 court to “make new findings of a constitutional violation” before entering the new remedial order.

16 Id. at 501. The Ninth Circuit rejected the argument. It concluded that the district court’s order

17 merely implemented a new means of curing the same constitutional violation upon which the

18 original settlement agreement had rested—failure to provide care within a reasonable time

19 period—and that it was therefore a proper modification of the prior remedial order. Id.

20

Similarly, in Armstrong v. Brown, 768 F.3d 975 (9th Cir. 2014), the district court entered

21 an injunction that required California prison officials to “track the record of each institution and

22 the conduct of individual staff members” who were not complying with a remedial plan to cure

23 systemic violations of the Americans with Disabilities Act and the Rehabilitation Act. Id. at 978.

24 The vague language of the injunction created problems. The defendants contended that it required

25 them to track only substantiated allegations of noncompliance whereas the plaintiffs argued that it

26 required tracking and investigation of all alleged violations. Id. at 978–79. In response, the

27 district court issued a new injunction that both clarified that the defendants were required to track

28 all allegations—substantiated or not—and added dispute resolution procedures, including a

11

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1 provision that allowed plaintiffs’ counsel to review the state’s investigations of allegations of

2 noncompliance. Id. at 979. The defendants appealed the modified injunction, and the Ninth

3 Circuit affirmed. While noting that the relief ordered by the district court might have been unduly

4 intrusive had it been implemented as an initial remedy, the Ninth Circuit concluded that “the level

5 of intrusiveness [was] acceptable based on the history and circumstances of the case”—namely

6 that the district court “ha[d] attempted narrower, less intrusive alternatives—and those alternatives

7 ha[d] failed.” Id. at 986.

8

Plaintiffs argue that, as in Parsons and Armstrong, more intrusive measures are necessary

9 here because the 137.5% population cap is insufficient to allow Defendants to implement the

10 physical distancing measures they believe are necessary to prevent the spread of COVID-19. ECF

11 No. 3248/6558 at 4–5. But this argument elides the fact that the population cap order was never

12 intended to put Defendants in a position to confront the unique threat posed by this once-in-a-

13 century virus. Thus, this is not a case like Parsons and Armstrong where a district court

14 implemented progressively more intrusive measures to remedy the same, well-understood

15 constitutional violation that formed the basis for the original remedial order. See Parsons, 912

16 F.3d at 499; Armstrong, 768 F.3d at 978–79, 986. Instead, Defendants ask us to alter a decade-old

17 order to address a new alleged constitutional violation—an inadequate response to a specific

18 virus—that our prior order was never designed to address. This request falls outside the scope of

19 our equitable modification authority.

20

Our order today does not leave Plaintiffs without options for seeking relief. While we

21 must deny their motion as currently procedurally improper, we do so without prejudice to their

22 bringing their request for relief in an appropriate forum. As with the Valley Fever motion in

23 Plata, and as was done in the original Coleman and Plata litigation, Plaintiffs may go before a

24 single judge to press their claim that Defendants’ response to the COVID-19 pandemic is

25 constitutionally inadequate. For example, if they believe that the response violates Plaintiffs’ right

26 to adequate medical care, they may seek relief before the individual Plata court. Likewise,

27 Plaintiffs may seek relief before the individual Coleman court if they believe that Defendants’

28 response to COVID-19 is preventing the delivery of adequate mental health care. If a single-judge

12

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1 court finds a constitutional violation, it may order Defendants to take steps short of release

2 necessary to remedy that violation. And if that less intrusive relief proves inadequate, Plaintiffs

3 may request, or the district court may order sua sponte, the convening of a three-judge court to

4 determine whether a release order is appropriate. See 18 U.S.C. § 3626(a)(3).

5 III. CONCLUSION

6

We take no satisfaction in turning away Plaintiffs’ motion without reaching the important

7 question of whether Defendants have implemented constitutionally adequate measures to protect

8 the inmates of California’s prisons from the serious threat posed by this unparalleled pandemic.

9 But we are bound by Federal Rule of Civil Procedure 60(b)(5) and the PLRA to reach this

10 conclusion.

11

We emphasize that Defendants have broad authority to voluntarily take steps that may

12 prevent the life-threatening spread of COVID-19 within their prisons, and we recognize the

13 deference that is due to prison authorities to determine which additional measures must be taken to

14 avoid catastrophic results. See Turner v. Safley, 482 U.S. 78, 84–85 (1987). Defendants have

15 represented to us that they are continuously evaluating what more they can do to protect the

16 inmates within their prisons, and we urge them to leave no stone unturned. It is likely that only

17 through significant effort will California’s prisons be able to minimize the spread of COVID-19.

18

* * *

19

For the foregoing reasons, Plaintiffs’ emergency motion for modification of our 2009

20 population reduction order is DENIED without prejudice to pursuing relief in a procedurally

21 appropriate forum, including in the individual Coleman and/or Plata courts.

22

IT IS SO ORDERED.

23

24 Dated: April 4, 2020

25

26

27

28 13

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1 MUELLER, Chief District Judge, concurring:

2

I join in the court’s conclusion that Plaintiffs have not met their burden of demonstrating

3 they qualify for the relief they seek under Federal Rule of Civil Procedure 60(b)(5), assuming

4 without deciding that as the prevailing party previously they may rely on the rule for affirmative

5 relief. See, e.g., In re Von Borstel, No. 01-42235-elp7, 2011 WL 477817, at *4 (Bankr. D. Or.

6 Feb. 3, 2011) (“The rule does not say that ‘a losing’ party may obtain relief; it says ‘a’ party.”

7 Thus, a prevailing party may use Fed. R. Civ. P. 60(b) to seek to set aside a judgment on the

8 ground that the judgment should have provided additional relief.” (citing United States for Use &

9 Benefit of Familian Nw., Inc. v. RG & B Contractors, Inc., 21 F.3d 952 (9th Cir. 1994))); but see

10 Cano v. Baker, 435 F.3d 1337, 1340 (11th Cir. 2006) (“The equitable purpose of Rule 60(b)

11 cannot be to ‘relieve’ a party from her own lawsuit in which she had prevailed three decades

12 earlier.” (citation omitted)). The court’s conclusion in this respect is sufficient to resolve the

13 motion before us.

14

I respectfully do not join in the court’s analysis or determination that Plaintiffs’ motion

15 arises out of an Eighth Amendment claim entirely distinct from the claims over which this court

16 has continuing jurisdiction. This court previously found, after extended evidentiary proceedings,

17 that “crowding generates unsanitary conditions, overwhelms the infrastructure of existing prisons,

18 and increases the risk that infectious diseases will spread.” Coleman v. Schwarzenegger, 922 F.

19 Supp. 2d 882, 931 (E.D. Cal. 2009) (“Coleman I”) (citing Nov. 9, 2007 Scott Report ¶¶ 17–24,

20 ECF No. 1528/3058). In so finding, this court credited multiple experts who opined that prison

21 crowding was a contributor to great vulnerability in the face of outbreak and spread of infectious

22 disease. Id. (referencing opinions that “crowding ‘contributes to the difficulties of healthcare

23 delivery by virtue of the fact that it increases the incidence of illnesses, [and] infectious

24 disease’”); id. (quoting Rep. Tr. at 257:15–22, ECF No. 1832/3541-2, for opinion of Dr. Jeffrey A.

25 Beard that, while prisons may not always be incubators for disease, “they could be if your

26 population densities get so intense,” including “if you have a gymnasium that you triple bunk and

27 put hundreds and hundreds of people in a closed dense area”); id. (“Until CDCR reduces its

28 population, it will remain highly vulnerable to outbreaks of communicable diseases, including

CaseC: a1s:2e04-c:0v1-0-c2v1-30413D5o1c-uJSmTentD#o:c2u6m-9enFtil3e2d6: 104/F06ile/2d00P4a/0g4e/2106 oPf a1g6eP1a5geoIfD15#:363

1 staph infections, tuberculosis and influenza.” (quoting Nov. 9, 2007 Shansky Report ¶ 135, ECF

2 No. 1527/3057)).

3

Moreover, this court retained jurisdiction to determine whether the remedy it had ordered

4 proved durable. See Coleman v. Brown, 952 F. Supp. 2d 901, 934 (E.D.Cal./N.D.Cal. 2013).

5 Even though the prison population for some time has remained below the cap this court previously

6 set, Defendants have not achieved the durability of remedy required for this court’s role to cease.

7 The current circumstances appear to expose, in stark terms, the potential need to revisit the current

8 population cap. Even as I do not believe Plaintiffs’ motion grounded in Rule 60(b)(5) can be

9 granted, I am inclined to think this court retains broad equitable powers that might permit some

10 reconsideration of the current cap in light of the unprecedented exigent circumstances here. Those

11 circumstances, as is undisputed, present potentially grave risks to members of the Plaintiff classes,

12 as well as to correctional staff and the communities in which they reside, as a result of the

13 COVID-19 pandemic and its impact on the delivery of medical and mental health care in the state

14 prisons. It is undisputed that the delivery of care, to date, remains below constitutional minima.

15 See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1987) (“As we explained in Milliken v. Bradley, 433

16 U.S. 267, 281 [ ], state and local authorities have primary responsibility for curing constitutional

17 violations. If, however [those] authorities fail in their affirmative obligations . . . judicial authority

18 may be invoked. Once invoked, the scope of a district court’s equitable powers to remedy past

19 wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” (internal quotation

20 marks and citation omitted)).

21

At the same time, it is clear that a prisoner release order under the PLRA is a remedy of

22 last resort and neither Plaintiff class has formally sought focused relief from their individual

23 courts, a condition precedent to issuance of a prisoner release order. See 18 U.S.C.

24 § 3626(a)(3)(A); see also Coleman I, 922 F. Supp. 2d at 918. Given the availability of expedited

25 proceedings before those district courts to immediately exhaust the possibility of inmate transfers

26 and relocations to secure facilities to achieve constitutionally acceptable conditions for the

27 Plaintiff classes, those proceedings must be invoked first.

28

With these observations, I join in the decision to deny Plaintiffs’ motion without prejudice.

2

 
 Case: 1:20-cv-02134 Document #: 47 Filed: 04/09/20 Page 1 of 37 PageID #:1067

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, individually and on

)

behalf of a class of similarly situated

)

persons; and JUDIA JACKSON, as next )

friend of KENNETH FOSTER, individually )

and on behalf of a class of similarly

)

situated persons,

)

)

Plaintiffs-Petitioners,

)

)

vs.

)

)

THOMAS DART,

)

)

Defendant-Respondent.

)

Case No. 20 C 2134

MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge:1
Anthony Mays and Kenneth Foster2 are pretrial detainees at Cook County Jail in Chicago, Illinois. On behalf of themselves and a putative class, they have sued the Cook County Sheriff Thomas Dart, who operates the Jail, alleging that he has violated their rights under the Fourteenth Amendment by failing to provide them with reasonably safe living conditions in the face of the current coronavirus pandemic. The plaintiffs assert claims under 42 U.S.C. § 1983 and for writs of habeas corpus under 28 U.S.C. § 2241. They have moved for entry of a temporary restraining order requiring the Sheriff

1 Judge Kennelly is addressing this matter as emergency judge pursuant to paragraph 5 of Second Amended General Order 20-0012.
2 The claim for Foster is brought by Judia Jackson, his next friend, because plaintiffs' counsel attempted to contact Foster by telephone but were unable to reach him due to the Jail's operational limits arising out of the coronavirus pandemic.

Case: 1:20-cv-02134 Document #: 47 Filed: 04/09/20 Page 2 of 37 PageID #:1068
to take additional precautions to stem the spread of coronavirus into and within the Jail. Ultimately, plaintiffs contend, they cannot be held at the Jail in a way that is consistent with their constitutional rights—though they do not seek outright release from custody as part of their motion for a temporary restraining order. Rather, they seek changes in the Sheriff's policies, including in how they are carried out, as well as, for one proposed subclass, a change in the locations where they are kept in custody. See Emerg. Mot. for Temp. Restraining Order of Prelim. Inj., dkt. no. 2, at 15-16, 17–19 (spelling out the relief sought on the request for a TRO).
The Court begins by acknowledging the importance of the issues presented by the parties. The Sheriff is responsible for operating and administering a very large physical facility—actually a campus of separate physical facilities—whose population, if one considers including both detainees and staff, is the size of a small (but not all that small) town. This is an extraordinarily difficult task. The detainee population runs the gamut from persons with lengthy criminal records who are accused of committing violent crimes to non-violent offenders in custody for the first time who, perhaps, remain in custody only because they and their families were unable to post bond money. And it also runs the gamut from young, healthy persons to older detainees with serious medical or mental health issues. Operating the Jail, even under normal circumstances, is a very challenging task that occupies a large, full-time staff of policymakers, subject matter experts, and front-line correctional officers, medical and mental health workers, counselors, and others. And these are not normal circumstances. Fashioning a public policy and public health response to the coronavirus pandemic has challenged government officials across our country and throughout the world, who are facing a
2

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crisis unlike any we have faced for decades, and perhaps generations. The task is no less difficult, and no less unfamiliar, for administrators of jails.
This does not mean, however, that constitutional protections fall by the wayside. Government officials in our country are bound by constitutional requirements even when they are dealing with difficult and unfamiliar challenges to public health and safety. Persons accused of crimes who are detained pending trial do not shed their constitutional rights at the jailhouse door. The government has determined to lock them up pending determination of their guilt or innocence, and by doing so the government takes on an obligation to protect their health and safety. And it cannot be forgotten that by requiring this, we safeguard the health and safety of the community at large—from which the detainees have come and to which they and the officers guarding them will return.
In light of these considerations, and for the reasons stated below, the Court issues a temporary restraining order, though considerably narrower than the order the plaintiffs have requested. In particular, the Court declines the plaintiffs' request to require the Sheriff to move certain of them to other forms of custodial arrangements such as home incarceration.
Background Mays and Foster have serious medical conditions that make them highly vulnerable to complications arising from what has been termed COVID-19, a novel form of coronavirus that is causing a global pandemic. (The Court will use the term coronavirus.) As of this morning, 432,550 Americans and over 1,502,610 people around the world have been diagnosed with the virus—figures that understate its
3

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spread, as they include only those who have managed to get tested. See Coronavirus Resource Center, Johns Hopkins Univ. & Med., https://coronavirus.jhu.edu/ (last updated April 9, 2020, 8:38 A.M.). Over 89,910 have died, including over 14,800 Americans. Id. At present, there is no known cure and no known vaccine.
People over the age of 65 and people of all ages with serious underlying medical conditions face an elevated risk of suffering from severe illness if they contract coronavirus. Because the virus spreads more rapidly when people are in close contact with each other, government officials have drastically reduced activity involving personto-person contact in cities, nations, and economies around the world, including Chicago and Illinois.
Reducing the spread of the virus is, however, especially challenging in jails and prisons. The Cook County Jail is a complex where, at any given time, thousands of detainees live in either barracks-style dormitories, shared cells, or individual cells as they await trial on the crimes of which they have been accused. As of April 8, 2020, 251 detainees and 150 employees at the Jail have tested positive for coronavirus, and one detainee has died of apparent complications from it. See COVID-19 Cases at CCDOC, Cook County Sheriff's Office, https://www.cookcountysheriff.org/covid-19-cases-atccdoc/ (last updated April 8, 2020, 5:00 P.M.). While the Court was drafting this opinion, the news broke that the Jail is the largest single known source of infections in the nation. See Timothy Williams and Danielle Ivory, "Chicago’s Jail is Top U.S. Hot Spot as Virus Spreads Behind Bars" (April 8, 2020), N.Y. Times, https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html (last updated April 9, 2020, 8:47 A.M.). The plaintiffs allege that conditions at the Jail—
4

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including, for example, the very close proximity in which detainees are held in the Jail’s housing divisions and intake areas, inadequate distribution of soap and sanitation supplies for detainees, and a lack of personal protective equipment (PPE) for detainees who have been exposed to others with symptoms of the virus—violate constitutional requirements.
On April 3, 2020, the plaintiffs filed this lawsuit. In Count 1, they allege, under 42 U.S.C. § 1983, that the Sheriff has violated their Fourteenth Amendment right to constitutionally adequate living conditions by failing to implement appropriate measures to control the spread of the virus. In Count 2, they petition for writs of habeas corpus through 28 U.S.C. § 2241 because, they contend, they cannot constitutionally be detained at the Jail during the pandemic.
At the same time the plaintiffs filed suit, they moved to certify a class consisting of "all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic." Compl., dkt. no. 1, ¶ 60. They also requested certification of two subclasses. "Subclass A consists of all people who, because of age or previous medical conditions, are at particularly grave risk of harm from COVID-19." Id. ¶ 61. "Subclass B consists of all people who are currently housed on a tier where someone has already tested positive for the coronavirus." Id. ¶ 62.
The plaintiffs also immediately moved for a temporary restraining order or preliminary injunction requiring implementation of specified preventive and protective measures at the Jail. See Emerg. Mot. for Temp. Restraining Order of Prelim. Inj., dkt. no. 2, at 15-16. The measures that the plaintiffs seek to implement would require the Sheriff to triage medically vulnerable detainees, enable social distancing, provide
5

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detainees with adequate supplies for sanitation and handwashing, distribute PPE to detainees, and take additional steps when quarantining and isolating symptomatic of coronavirus positive detainees, among other things. And, as indicated, their motion seeks relocation of certain class members to other custodial locations. On April 7, 2020, the Court held a hearing on the motion, at which counsel appeared and argued via telephone.
Discussion A. Conditional class certification
The plaintiffs seek classwide relief in the form of a temporary restraining order, but because the lawsuit was just filed there has not yet been a class certification ruling. This does not foreclose the possibility of relief for the plaintiffs at this stage, because a district court has general equity powers allowing it to grant temporary or preliminary injunctive relief to a conditional class. Lee v. Orr, No. 13 CV 8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013) (citing Ill. League of Advocates for the Developmentally Disabled v. Ill. Dep't of Human Servs., No. 13 C 1300, 2013 U.S. Dist. LEXIS 90977, at *10-11 (N.D. Ill. June 28, 2013)); see also Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 2020); Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012) ("[T]here is nothing improper about a preliminary injunction preceding a ruling on class certification."); Howe v. Varity Corp., 896 F.2d 1107, 1112 (8th Cir. 1990). Furthermore, Federal Rule of Civil Procedure 23(b)(2) "does not restrict class certification to instances when final injunctive relief issues" and permits certification of a conditional class for the purpose of granting preliminary injunctive relief. Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012); see also Howe, 896 F.2d at 1112 (affirming
6

Case: 1:20-cv-02134 Document #: 47 Filed: 04/09/20 Page 7 of 37 PageID #:1073
grant of a preliminary injunction to a conditional class). Under Rule 23(a), the four prerequisites for class certification are numerosity,
commonality, typicality, and adequate representation. Beaton v. SpeedyPC Software, 907 F.3d 1018, 1025 (7th Cir. 2018). "Once these four prerequisites are satisfied, the potential class must also satisfy at least one provision of Rule 23(b)." Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). The plaintiffs have made a sufficient showing for conditional certification of Subclasses A and B for the purpose of the present motion for a temporary restraining order.
As for the first prerequisite, numerosity, there is "no magic number" that is regarded as sufficient, but forty is generally accepted as sufficient to satisfy Rule 23(a). Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017). It is undisputed that there are over 4,000 detainees in the Jail, and the plaintiffs cite statistics that in incarcerated populations, on average 15 percent of the detainees have asthma, 10 percent have heart conditions, 10 percent have diabetes, and 30 percent have hypertension. Applying even the lowest of these percentages to the detainee population of over 4,000 yields hundreds of detainees with medical conditions that heighten the risk of harm from a coronavirus infection. This is sufficient to establish numerosity for conditional certification of Subclass A. As for Subclass B, the plaintiffs have likewise sufficiently demonstrated numerosity for purposes of conditional certification. Over two hundred detainees have tested positive for coronavirus, and most detainees are housed in tiers which are shared with anywhere from forty to several hundred other detainees. This is sufficient to show that there are likely far more than forty detainees in proposed Subclass B.
7

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There is also commonality with respect to the claims of Subclass A member and Subclass B members. Commonality requires at least one question common to all the class members, the answer to which is “apt to drive the resolution of the litigation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Both subclasses' claims turn on a common question of whether detainees are facing an unconstitutional risk of harm to their health due to conditions in the Jail that facilitate the spread of coronavirus and the absence of protections adequate to stem its spread.
The Seventh Circuit has explained that a named plaintiff's claims are typical if they "arise[ ] from the same event or practice or course of conduct that gives rise to the claims of other class members and [are] based on the same legal theory." Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018). The claims of the named plaintiffs here are typical of the class, because the named plaintiff and the members of the class all contend that they face a serious risk of contracting coronavirus due to the Jail's allegedly deficient living conditions and precautions, and they and the class seek the same relief. In addition, the named plaintiffs' claims are typical of the putative members of Subclass A, who all contend that they face an elevated risk of experiencing complications if they contract coronavirus, and of the putative members of Subclass B, who all claim exposure at the Jail to someone who has already tested positive.
There is also adequate representation of both subclasses by Foster. Under this requirement of Rule 23(a), the named plaintiff must be a member of the putative class and must have the same interest and injury as other members. Beaton, 907 F.3d at 1027. Foster alleges that he faces heightened risk of harm from coronavirus infection because he suffers from stomach cancer, lung disease, asthma, and bronchitis, so he is
8

Case: 1:20-cv-02134 Document #: 47 Filed: 04/09/20 Page 9 of 37 PageID #:1075
a member of putative Subclass A. And because several people on Foster's tier have tested positive for coronavirus, he is also a member of putative Subclass B. Foster shares an interest with members of both subclasses in relief from the jail conditions that the classes allege have put them at risk severe risk of health harm from coronavirus.
In sum, the requirements of Rule 23(a) are sufficiently met to allow provisional certification of both subclasses for purposes of the motion for temporary restraining order.
Rule 23(b)(2) permits class actions if "the party opposing the class has acted or refused to act on grounds that apply generally to the class," so that injunctive or declaratory relief is appropriate for the class as a whole. The plaintiffs satisfy this requirement because they seek "the same . . . injunctive relief for everyone" in the class and in each subclass. See Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426, 442 (7th Cir. 2015).
For these reasons, the Court conditionally certifies Subclasses A and B for the purpose of the motion for a temporary restraining order. B. Temporary restraining order
The Court addresses in this decision only the plaintiffs' motion for a temporary restraining order, not their motion for a preliminary injunction. One reason is that the motion involves at least some disputed facts that potentially require an evidentiary hearing before they may be determined. See Dexia Credit Local v. Rogan, 602 F.3d 879, 884 (7th Cir. 2010); Promatek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808, 814 (7th Cir. 2002), as amended (Oct. 18, 2002); Syntex Ophthalmics, Inc. v. Tsuetaki, 701 F.2d 677, 682 (7th Cir. 1983). The motion for preliminary injunction is therefore left for
9

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later consideration. The standard for issuing a temporary restraining order is identical to that
governing the issuance of a preliminary injunction. Trs. of Chi. Reg'l Council of Carpenters Welfare Fund v. Norem, No. 17 C 4851, 2017 WL 4620798, at *2 (N.D. Ill. Oct. 16, 2017) (citing Long v. Bd. of Educ., Dist. 128, 167 F. Supp. 2d 988, 990 (N.D. Ill. 2001)). A court's determination of whether to issue a preliminary injunction or temporary restraining order involves a two-step inquiry, with a threshold phase and a balancing phase. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). At the threshold phase, the moving party must show: (1) without the requested relief, he will suffer irreparable harm during the pendency of his action; (2) traditional legal remedies would be inadequate; and (3) he has some likelihood of success on the merits. Id. If the movant satisfies these requirements, the court proceeds to the balancing analysis "to determine whether the balance of harms favors the moving party or whether the harm to other parties or the public sufficiently outweighs the movant’s interests." Id.
The Court also notes that the plaintiffs are arguably seeking what is sometimes referred to as a "mandatory injunction," that is, a restraining order that requires an affirmative act by the defendant. Mandatory injunctions are "ordinarily cautiously viewed and sparingly issued." Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997).
1. Likelihood of success on the merits The moving party "need not demonstrate a likelihood of absolute success on the merits." Whitaker, 858 F.3d at 1046. A "better than negligible" chance of success is
10

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sufficient. Id. (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). a. Habeas corpus
Plaintiffs and subclass A have petitioned for a writ of habeas corpus under 28 U.S.C. § 2241, which is the appropriate way for a state pre-trial detainee to challenge his or her detention. Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015). "Because a pre-trial detainee is not yet in custody pursuant to the judgment of a State court, relief under 28 U.S.C. § 2254 is not available." Id. (internal quotation marks omitted).
Section 2241 has no express exhaustion requirement, but courts apply a common-law exhaustion rule. Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004). A pretrial detainee must "exhaust all avenues of state relief" before seeking a writ of habeas corpus through a section 2241 action. See United States v. Castor, 937 F.2d 293, 296–97 (7th Cir. 1991). Although there are exceptions, "the hurdle is high." Richmond, 387 F.3d at 604. In deciding whether an exception applies, courts "must balance the individual and institutional interests involved, taking into account 'the nature of the claim presented and the characteristics of the particular administrative procedure provided.'" Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting McCarthy v. Madigan, 503 U.S. 140, 146 (1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534 U.S. 516 (2002)). A court may excuse exhaustion where:
(1) requiring exhaustion of administrative remedies causes prejudice, due to unreasonable delay or an indefinite timeframe for administrative action; (2) the agency lacks the ability or competence to resolve the issue or grant the relief requested; (3) appealing through the administrative process would be futile because the agency is biased or has predetermined the issue; or (4) where substantial constitutional questions are raised.
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Id.; see also Chazen v. Marske, 938 F.3d 851, 863 (7th Cir. 2019) (applying futility exception).
It is undisputed that a state court has the authority to release a pretrial detainee. A detainee in Illinois may challenge his or her detention by seeking judicial review of his or her bond. 725 Ill. Comp. Stat. Ann. 5/110-6.3 And on March 23, 2020, in response to an emergency petition filed by the Cook County Public Defender, the Presiding Judge of the Cook County Circuit Court's Criminal Division issued an order setting out an expedited bond hearing process that applied to seven designated classes of detainees. Defs.' Resp., Ex. E (dkt. no. 31-1) at 1-2. The classes included those at an elevated risk of contracting coronavirus due to their ages or underlying medical conditions—that is, the putative members of Subclass A. Id. The expedited hearings took place from March 24 through March 27. Id. at 3–5. Although the expedited hearings do not appear to be currently ongoing, Cook County's courts are still available for emergency matters, and judges are hearing motions to review or reduce bail daily at all locations where court is held. Defs.' Supp. Resp., Ex. A (dkt. no. 41-1) at 1.
The plaintiffs do not contend that they sought expedited bond hearings or initiated any sort of state proceedings challenging their bonds.4 Instead, they contend
3 At the hearing held on April 7, 2020, though not in their supplemental brief filed after the hearing, the plaintiffs advanced another futility argument, specifically that the risk to their health could not be asserted as a basis to allow release on bond. The argument is unsupported, and it is undercut by the numerous bond reductions and releases that have taken place in recent weeks, largely as a result of the coronavirus outbreak. 4 At the hearing, but not in any of their briefs, the plaintiffs suggested that the Public Defender's motion could serve to exhaust their claims. But they were not named parties to that motion and, regardless, the state court's ruling on that motion would undermine their argument because it made possible an additional avenue of relief.
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that exhaustion is futile because the bond review process does not move quickly enough. The defendants, in turn, contend that the plaintiffs should have sought reductions of their bonds through the expedited and/or emergency hearings that were available, may now seek release via other established processes, and that these processes are not futile.
The plaintiffs in subclass A cannot show that they exhausted available state court remedies before petitioning for habeas corpus. As indicated, the plaintiffs have not sought bond reductions at all. And the record reflects that this process is anything but futile. During the week the expedited bond hearings were held, the Jail's population decreased by 424 detainees. Defs.' Resp., Ex. B (dkt. no. 30-2) ¶ 27. Since March 9, the Jail's population has decreased by 1,175 detainees—bringing it to a record low, at least for the past few decades—and even since the completion of the expedited bond hearing process, the Jail's population has decreased by over 265 detainees. E.g., id. ¶¶ 10, 28–29.
Nor have the plaintiffs established that the existing and available process for review of their detention is unduly time-consuming in a way that undermines their claimed constitutional rights. They say the process, in its entirety, could take several weeks or months. But this assumes a given detainee will lose at every stage and will have to appeal all the way to the state supreme court. In the Court's view, it is rather incongruous to call an otherwise available process unnecessarily time-consuming or futile when one has made no effort to initiate it. More to the point, the plaintiffs point to no evidence that detainees who have sought bond hearings are currently facing undue delays. Thus although a court may excuse exhaustion in unusual circumstances if it
13

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would cause an unreasonable delay, see, e.g., Gonzalez, 355 F.3d at 1016, the plaintiffs have not made the necessary showing. And to the extent they contend that the requirement of exhaustion should be excused due to the nature of the constitutional questions they raise, they have made no showing that the state courts cannot remedy these claimed violations.
In sum, the habeas corpus claim on the part of the representatives of subclass A is barred due to their failure to exhaust available state court remedies. As a result, the subclass has no likelihood of success on the merits.5 This renders moot the plaintiffs' request for the Court to establish a procedure for the expedited consideration of release of the members of subclass A, which the plaintiffs sought only with respect to the habeas corpus claim.
Though this determination renders the parties' other arguments regarding habeas corpus superfluous, the Court will address certain of them to ensure a more complete record and to eliminate issues from the need for future consideration. First, the parties dispute whether detainees can even challenge the conditions of their confinement through section 2241—an issue that has also divided courts. Compare, e.g., Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (a prisoner may challenge the conditions of his confinement in a federal habeas corpus petition) and Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (same) with Spencer v. Haynes, 774 F.3d 467, 469–70 (8th Cir. 2014) (section 2241 petitions may not challenge conditions). The Seventh
5 If the plaintiffs wish to seek prompt appellate review of this ruling, the Court is willing to consider dismissing Count 2 of their complaint for failure to exhaust and certifying the ruling for immediate appeal under 28 U.S.C. § 1292(b). Any such request should be presented to the undersigned judge in his capacity as emergency judge.
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Circuit has expressed a "long-standing view that habeas corpus is not a permissible route for challenging prison conditions," at least when a prisoner's claim does not have "even an indirect effect on the duration of punishment." Robinson v. Sherrod, 631 F.3d 839, 840–41 (7th Cir. 2011). But the Seventh Circuit has also noted that "the Supreme Court [has] left the door open a crack for prisoners to use habeas corpus to challenge a condition of confinement." Id. at 840 (internal quotation marks omitted) (citing Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir.2005); Nelson v. Campbell, 541 U.S. 637, 644–46 (2004); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Preiser v. Rodriguez, 411 U.S. 475, 499–500 (1973)). Were the Court required to address this point, it would not consider it to be an absolute bar to plaintiffs' motion for a temporary restraining order. The plaintiffs' claims, as they have framed them, do bear on the duration of their confinement (they contend, ultimately, that they cannot be held in the Jail consistent with the Constitution's requirements), and they are not the sort of claims that are, or can be, appropriately addressed via a claim for damages. The Court need not, however, decide this point definitively at this point.
Next, the Sheriff argues that he has no authority to release detainees because, he contends, only the criminal trial court has authority to release a person in custody. Citing the Illinois County Jail Act, 730 Ill. Comp. Stat. Ann. 125/14, the Sheriff contends that he can transfer pretrial detainees—which, his counsel conceded at the hearing (contrary to statements in the Sheriff's brief), could include placing them in home custody—but that he lacks authority to release them outright. This argument has no bearing on the petition for habeas corpus. The issuance of writ of habeas corpus through a section 2241 petition is a federal remedy (in other words, it does not depend
15

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on state law), and a habeas corpus petition is always addressed to the prisoner's custodian, in this case the Sheriff. Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004) ("Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent."). Whether the Sheriff has authority under state law to release detainees on his own does not matter.
Finally, the Sheriff also suggests that the subclass A plaintiffs' habeas corpus petition is barred by Younger v. Harris, 401 U.S. 37 (1971), which "requires federal courts to abstain from interfering with pending state proceedings to enforce a state's criminal laws and certain other types of law as well." Sweeney v. Bartow, 612 F.3d 571, 573 (7th Cir. 2010). Although the Seventh Circuit has held that Younger abstention may apply to a habeas corpus petition, id., there is no basis to abstain here, as there is no pending state proceeding. The Sheriff's real argument is non-exhaustion, not Younger abstention.
b. Section 1983 claim The Fourteenth Amendment protects pretrial detainees, who are entitled to a constitutional presumption of innocence, from being held in conditions that amount to punishment. Miranda v. County of Lake, 900 F.3d 335, 350-51 (7th Cir. 2018). Analysis of a due process challenge to conditions of confinement involves two steps. See Miranda, 900 F.3d at 353. The first is a determination of whether the defendant's conduct was purposeful, knowing, or "perhaps even reckless[]," id., with respect to the "physical consequences in the world" of his conduct. Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2472 (2015). The conditions created by the defendant's conduct must be, "from an objective standpoint, sufficiently serious."
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See Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016).6 The second step is an assessment of the reasonableness of the defendant's conduct, in light of the "totality of facts and circumstances" facing the defendant. McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). The reasonableness of the defendant's conduct is measured objectively "without regard to any subjective belief held by the [defendant]." Id.
i. Knowing conduct and seriousness of conditions The Sheriff does not dispute that his establishment of certain policies and his non-establishment of others that are sought amounts to knowing conduct; at the hearing. For a condition created by a defendant's conduct to be "sufficiently serious" to violate a detainee's Fourteenth Amendment rights, the defendant's knowing acts or omissions must result "in the denial of the minimal civilized measure of life's necessities." See Gray, 826 F.3d at 1005 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Actual, present harm is not required; conditions that pose an "unreasonable risk of serious damage to the [detainee's] future health" may violate a detainee's Fourteenth Amendment rights. See Henderson v. Sheahan, 196 F.3d 839, 847 (7th Cir. 1999). To determine if conditions of confinement pose an "unreasonable risk" to pretrial detainees' future health, a court must make a "scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to
6 The claim in Gray was brought by a convicted prisoner, not a pretrial detainee, and therefore his claim was governed by the Eighth Amendment, not the Fourteenth Amendment. The analyses of conditions-of-confinement claims under Fourteenth Amendment and Eighth Amendment overlap in the assessment of whether the conditions were sufficiently severe, but they diverge in the assessment of the propriety of the defendant's conduct: the standard is subjective for Eighth Amendment claims (which require a showing of deliberate indifference) and objective for Fourteenth Amendment claims (which require a showing of unreasonableness). See Hardeman v. Curran, 933 F.3d 816, 822 (7th Cir. 2019).
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health will actually be caused" by the conditions. Id. A court must also consider whether the risk of harm was "not one that today's society chooses to tolerate." Id.
The plaintiffs are reasonably likely to succeed in showing that at least some of the conditions they cite pose an unreasonable risk to their future health. See id. The scientific evidence in the record— including the Center for Disease Control's Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities ("CDC Guidelines") and a declaration from medical doctors submitted by the plaintiffs—reflects that coronavirus is highly contagious, persists in the environment, and may be hard to detect by observation of symptoms only. The virus apparently spreads easily, through coughing or sneezing; droplets with the virus can remain in the air for up to three hours. Additionally, and importantly for purposes of the present case, coronavirus apparently persists on plastic and stainless steel surfaces for up to two to three days. Those who have been infected with the virus may not become symptomatic for up to fourteen days. In light of these qualities and the present lack of a vaccine or cure for the virus, frequent handwashing, social distancing, sanitation of surfaces, and the use of PPE are the only available methods to protect against coronavirus infection.
In the context of this evidence, the plaintiffs have demonstrated that certain of the conditions created by the intentional actions of the Sheriff enable the spread of coronavirus and significantly heighten detainees' risk of contracting the virus. First, the affidavits from current and recently released detainees reflect that Sheriff's personnel have not been cleaning common spaces after a detainee on the tier has tested positive
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for coronavirus.7 The affidavits submitted by the plaintiffs also reflect that detainees are being housed under conditions that make social distancing impossible, thereby facilitating the spread of coronavirus. Many detainees are in congregate living situations, in which anywhere from forty to over a hundred detainees are housed in a single room. The beds in these open living spaces are very close together, separated by only one to four feet. And detainees who are housed in single- or dual-occupancy cells still must use common bathroom facilities, which are typically shared by forty to fifty people, including large groups at a single time.
The affidavits submitted by the plaintiffs further suggest that detainees currently lack the means to attempt to protect themselves from a potential coronavirus infection. Although they are sharing tier with someone who has tested positive for coronavirus, the plaintiffs contend, the Sheriff has not provided them with adequate supplies of soap, with cleaning supplies, or with PPE such as facemasks. The record reflects that only symptomatic detainees have been issued facemasks and that detainees otherwise have not received any PPE. The plaintiffs' affidavits reflect that requests for facemasks have been refused by Jail personnel and that when detainees have resorted to making their own masks from cloth, those masks have been confiscated.
The plaintiffs also contend that the Jail is not screening its population to identify, and separate, detainees who have heightened vulnerability to coronavirus disease due
7 Although the Sheriff objects that many of the plaintiffs' affidavits contain hearsay, it is well established that a Court may consider hearsay in ruling on a preliminary injunction motion (and thus on a motion for a temporary restraining order). See SEC v. Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991).
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to age or preexisting medical conditions. As a result, the plaintiffs contend, those detainees are housed, and will in the future be housed, in tiers where a detainee has tested positive. The plaintiffs argue that this places these vulnerable detainees at a high risk of severe health consequences.
The statistical evidence that exists also indicates that the conditions at the Jail have created a significant and unreasonable risk to the plaintiffs' future health. The Jail currently has the highest rate of new coronavirus infections in the country, and it far exceeds that of Cook County. As of April 6, 2020, the infection rate in Cook County was 1.56 per 1000 people, whereas in the Jail, it was 50 per 1,000 people. The disparity between these rates tends to support the contention that the conditions at the Jail facilitate the spread of coronavirus and exacerbate the risk of infection for detainees.
The plaintiffs have shown a reasonable likelihood of success on their contention that at least some current conditions at the Jail relating to the Sheriff's response to the coronavirus outbreak collectively create a risk of harm from coronavirus that is "not one that today's society chooses to tolerate." See Sheahan, 196 F.3d at 847. In recognition of the importance of social distancing, Illinois' governor has instituted a statewide stayat-home order. Frequent handwashing, use of PPE such as facemasks, and sanitizing of commonly used surfaces have, in the past several weeks, become routine precautions employed by the general population. Under the circumstances, plaintiffs are reasonably likely to succeed on their contention that conditions at the Jail create an unreasonable risk to their health that is sufficiently serious to bring their due process rights into play, thus requiring assessment of the reasonableness of the Sheriff's actions.
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ii. Objective reasonableness Objective reasonableness is assessed from the perspective of "a reasonable [official] on the scene," based on what the officer knew at the time, Kingsley, 135 S. Ct. at 2473; from that perspective a court determines if the official acted reasonably to mitigate the risks to health and safety of the detainees. See Hardeman, 933 F.3d at 825; see also Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). In assessing the reasonableness of the Sheriff's conduct, the Court must account for his legitimate interest in managing the Jail facilities and must defer to policies and practices that "are needed to preserve internal order and discipline and to maintain institutional security." Kingsley, 135 S. Ct. at 2473 (quoting Bell, 441 U.S. at). The Sheriff argues that his conduct has been objectively reasonable because he has promulgated policies and procedures intended to implement the CDC Guidelines, which both parties have expressly relied upon as a guide to assessing the reasonableness of the Sheriff's conduct. The establishment of a policy that is consistent with authoritative guidance and best practices may, in fact, comply with constitutional requirements. But establishing appropriate policies does not fully discharge the Sheriff’s constitutional obligations; a policy is only as good as its execution. In this case, the plaintiffs challenge certain of the Sheriff’s policies as inadequate and thus unreasonable, but they also challenge the implementation of other policies that may be facially adequate. For example, the plaintiffs offer an affidavit from a correctional officer who states that, despite the Sheriff’s declared policy, facemasks are being rationed and are not readily available for Jail staff. And they likewise offer affidavits from recent detainees and from persons who have spoken with current detainees that are indicative
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of objectively unreasonable deficiencies in the implementation of certain of the Sheriff’s declared policies.
With these considerations in mind, the Court assesses the plaintiffs’ likelihood of success on its challenges to the Sheriff's actions in response to the health risks to detainees posed by coronavirus.
a. Medical triage of vulnerable detainees The plaintiffs contend that the Sheriff has not established a process to identify detainees who are in high risk categories for complications from coronavirus or measures to separate vulnerable detainees from others who are confirmed or suspected of having the virus. The Sheriff contends he has worked to establish policies that are consistent with the CDC's guidelines and that identify potentially vulnerable detainees. He points to evidence that Sheriff’s personnel are working to help the state courts expedite case and bond review hearings by identifying detainees who are considered at a high risk of having complications from the virus based on age or medical conditions. But apart from using medical alerts in the Sheriff’s office’s computer system, the submissions made to the Court offer no description of an actual process for identifying vulnerable detainees. Given the widely acknowledged risks to medically vulnerable individuals, it undoubtedly would be advisable for the Sheriff to identify, in advance of any symptomatology, detainees who are in high-risk categories. The CDC’s guidance says that correctional facilities should ensure that detainees are medically evaluated and treated "at the first signs of COVID-19 symptoms," including a determination regarding whether an individual is in a high-risk category. Defs.' Resp., Ex. O (dkt. no. 30-15), at
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23. Knowing in advance who the high-risk detainees are, and maintaining an accessible record of this, would facilitate more careful monitoring and treatment of the medical condition of any such person who develops symptoms consistent with coronavirus disease. But the CDC’s guidance does not require correctional facilities to identify medically vulnerable detainees before they show symptoms or to segregate them from other detainees in advance. For purposes of the present motion, the Court cannot say that the plaintiffs are likely to succeed on their contention that the Sheriff’s claimed failure to identify these detainees in advance is objectively unreasonable.
b. Social distancing The plaintiffs contend that the Sheriff's policies run afoul of social-distancing guidance; the Sheriff has not mandated this within the Jail; and current housing arrangements make social distancing impossible or virtually so, at least in many of the Jail’s divisions. In several areas, detainees are housed in congregate setting somewhat euphemistically called "dormitory"-type rooms—really, more like a military barracks, with dozens of inmates in close-quarters bunkbeds in a single large room. In others, detainees are doubled-celled in very small rooms. And in most areas of the Jail, large groups of detainees share showers, bathrooms, and dayrooms, as is common in most pretrial detention facilities. The plaintiffs contend that this runs afoul of CDC guidance and unreasonably endangers detainees’ health. The Sheriff contends that he is undertaking what he contends are reasonably feasible efforts to socially distance detainees and to educate them on the need for social distancing and how to practice it. The Sheriff also contends that he is working to reduce the occupancy of the Jails' dormitory-style housing by as much as fifty percent. He also points to a policy that
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requires the isolation of new detainees from the Jail’s general population for fourteen days as of April 6, 2020 (up from seven days in an earlier iteration of the policy).
At the April 7 hearing, however, defense counsel was unable to confirm whether such efforts make it possible to separate detainees' beds by six feet or, indeed, how much separation exists in the dormitory-type buildings. The only evidence in the record suggests that detainees likely are still packed rather closely in those facilities. In addition, the record appears to reflect that the Sheriff continues to maintain the historical practice of holding all new detainees awaiting intake for extended periods in enclosed, crowded cells commonly called bullpens. This occurs even before new detainees—all of whom have come from the community at large—are medically evaluated. This, it would appear, is a volitional, knowing policy choice by the Sheriff.
Plaintiffs have shown a reasonable likelihood of success on their contention that the intake procedure is objectively unreasonable and creates an undue risk of harm to new detainees who are thereby exposed to others who have not been medically evaluated and may have coronavirus disease symptoms. The CDC’s guidance recommends that correctional facilities "[e]nforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake." Defs.' Resp., Ex. O (dkt. no. 30-15), at 11. There is no evidence that the Sheriff is enforcing those measures, particularly with respect to the intake process; indeed, what evidence exists is to the contrary.
It is less clear, however, that the Sheriff’s existing housing arrangements for admitted detainees may be considered objectively unreasonable. In this regard, the CDC’s guidance is not as definitive as plaintiffs suggest; it acknowledges that space
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limitations may require a departure from better social-distancing practices. Though the existing situation likely increases the risk to detainees, the CDC's guidance expressly recognizes that complete social distancing may not be possible in the sleeping areas of a jail. Space constraints at the Jail do not allow for the more preferable degree of social distancing that exists in the community at large. The Court concludes that plaintiffs have filed to show a reasonable likelihood of success on their contention that the Sheriff is acting in an objectively unreasonable manner by failing to mandate full social distancing. This is particularly so because the Sheriff's submission reflects an ongoing effort to modify custodial arrangements at the Jail in a way that will permit greater separation of detainees.
c. Sanitation The plaintiffs contend that, although sanitation and handwashing are considered to be among the best defenses against the spread of coronavirus, the Sheriff's policies fail to provide for sufficient distribution of soap, sanitizing agents, and cleaning products to detainees. In particular, the plaintiffs note, the Sheriff's coronavirus response plan does not provide for the distribution of sanitation supplies to detainees at all. Affidavits submitted by and on behalf of both current and former detainees reflect that detainees are not being given sanitation supplies to clean cells or shared showers that have not otherwise been sanitized, and that they either have not received soap or received only a very small supply insufficient to permit the frequent hand-washing recommended by public health experts. In addition, a correctional officer who has submitted an affidavit in
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support of plaintiffs’ motion8 states that access to soap and sanitation supplies also pose a problem for Jail staff who have some responsibility for cleaning areas under their observation and control. For his part, the Sheriff contends he is working to distribute supplies more frequently, to implement more frequent and thorough sanitary measures, and follow the CDC's guidelines.
The CDC's guidance advises correctional facilities to ensure that sufficient amounts of sanitation and cleaning supplies are available and that detainees have free soap "sufficient to allow frequent hand-washing." Defs.' Resp., Ex. O (dkt. no. 30-15), at 8. The CDC also advises that frequently touched surfaces should be cleaned and disinfected several times a day. The Sheriff, however, has offered nothing to indicate that his policies ensure the provision of sufficient soap to detainees (let alone that it is being provided free of charge, assuming that is a relevant consideration for present purposes). By contrast, there is plenty of evidence to the contrary. The Sheriff also points to policies that call for sanitation and cleaning supplies to be made available to detainees, but he offers no evidence that this is actually happening on the ground, and as indicated the plaintiffs have offered significant evidence reflecting that it is not happening. This means that it is highly likely, as the plaintiffs contend, that numerous areas subject to common access in the Jail, including dayrooms, other common areas like showers and bathrooms, two-person cells, and the dormitory-type rooms, are going uncleaned for extended periods, thus increasing the risk of transmission of coronavirus
8 At the hearing, defense counsel attempted to cast doubt upon the credibility of the correctional officer, saying that he had been involved in other disputes or lawsuits with the Sheriff. The Court does not and need not make a credibility determination at this stage, other than to note that the officer’s statements are consistent with those made by detainees in other affidavits submitted by the plaintiffs.
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by detainees not yet isolated as symptomatic who have been in or touched objects in those areas. The Court cannot at this point quantify the risk, but the significant number of confirmed coronavirus infections among detainees certainly suggests the risk is significant. For these reasons, the Court concludes that plaintiffs have shown a reasonable likelihood of success on their claim that the execution of the Sheriff's policies regarding sanitation and sanitation supplies is objectively unreasonable.
d. PPE The plaintiffs next contend that the Sheriff's policies do not require providing PPE to every detainee and that this is objectively unreasonable under the circumstances. The first of these propositions appears to be undisputed: detainees as a whole are not being issued facemasks or other forms of PPE. Current and former detainees have stated via affidavits that they did not receive any PPE, that only detainees with symptoms received PPE, that detainees' requests for PPE have been denied by Sheriff’s personnel, and that when detainees tried to make their own face coverings, officers have confiscated them. The Sheriff has offered no contrary evidence on these points. The plaintiffs also suggest that some, but not all, correctional officers wear or have been wearing PPE in the Jail—at least, not until recently (though even this appears to be disputed via the affidavit from the correctional officer submitted by the plaintiffs on the morning of April 7). The Sheriff contends that he has been proactively working to obtain PPE and conform with best practices regarding its use, including, as of recently, requiring all employees to wear PPE in the Jail. The Sheriff also offers evidence that he has created a team of officers who patrol tiers checking that correctional staff are appropriately are using PPE.
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The CDC's guidelines for detainees' use of PPE recognize some flexibility; they require symptomatic detainees to wear masks but do not mandate this for those detainees' close contacts. But the CDC's guidance also indicates that asymptomatic detainees should get "face masks for source control as feasible based on local supply, especially if housed as a cohort." Defs.' Resp., Ex. O (dkt. no. 30-15), at 25 (emphasis added). Based on the record before the Court, the Sheriff's office gives PPE only to symptomatic detainees—a significant but still relatively modest proportion of the total detainee population at this point—even though the Sheriff currently has enough supplies to provide PPE to employees for at least a month. Because current guidance indicates that even cloth masks can reduce the spread of coronavirus, and the virus is spreading rapidly throughout the Jail, the plaintiffs have a reasonable likelihood of success on their contention that it is objectively unreasonable for the Sheriff to fail to provide facemasks at least to those detainees who are in quarantine—i.e., those who have been exposed to a detainee who is symptomatic (even if not coronavirus-positive). This failure creates an increased risk of further spread of coronavirus to other detainees, not to mention Jail staff and, by extension, members of the general public with whom those staff members have contact. The plaintiffs likewise have shown a reasonable likelihood of success on their contention that the Sheriff is not enforcing the use of PPE by Jail staff who come into contact with detainees, which poses a similar risk to detainees given those staff members’ exposure to others outside the Jail.
e. Quarantine and isolation The plaintiffs also criticize the Sheriff's policies on quarantining detainees who have been exposed to other detainees who have exhibited symptoms consistent with
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coronavirus disease. The policy, as discussed earlier, calls for quarantining the entire tier where any such detainee was housed for a fourteen-day period, extended if someone else in the tier thereafter exhibits symptoms. But plaintiffs’ criticism is not that the policy is inappropriate. Rather their contention appears to be that in the near to medium term the Sheriff's practice will make it impossible for him to manage the crisis given the number of tiers that likely will be under quarantine. Plaintiffs’ position, it seems to the Court, amounts to a contention that the practice of quarantining is likely to fail, so the Court will ultimately have to order detainee releases now to relieve the pressure. That, however, is not the issue currently before the Court, and in any event the plaintiffs have not made the showing that this is an appropriate remedy at this point.9
The Sheriff contends that he is following the CDC's guidance and has implemented it. As indicated, he has quarantined for at least fourteen days any detainee who has been in contact with a symptomatic detainee, and if a tier is quarantined, no new detainees are admitted to it or transferred from it. In addition, symptomatic detainees are moved to isolation tiers, and coronavirus-positive detainees are moved to different isolation tiers, for at least fourteen days. The plaintiffs offer no evidence reflecting that this is not what the Sheriff is doing.
The CDC’s guidance does not require correctional facilities to individually isolate detainees who have tested positive for coronavirus or have been in close contact with
9 For this reason, and because the requirements of 18 U.S.C. § 3626(a)(3)(A) have not been met, the Court need not address the applicability of section 3626 to the plaintiffs' request for relief. The same is true with regard to subclass B's request to be transferred to alternate custodial locations. At least at present, the plaintiffs are not seeking release from custody.
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someone who has. Rather, the CDC recognizes that some facilities may not have enough individual cells for individual isolation and may need to quarantine together groups of detainees exposed to others who have tested positive. The CDC's guidance further states that if a correctional facility has a need to isolate or quarantine detainees in groups, detainees with confirmed coronavirus cases should not be placed into isolation with symptomatic detainees or other detainees. The Sheriff's policies follow this recommendation, and the plaintiffs point to no evidence that he is not implementing those policies. The Court concludes that plaintiffs have not shown a reasonable likelihood of success on their contention that the Sheriff’s quarantining policies and practices are objectively reasonable.
f. Coronavirus testing The plaintiffs contend—and it is reasonable to believe—that there are likely more infections in the Jail than currently reported because of the limited availability of coronavirus tests. They ask the Court to order the immediate implementation of rapid testing. The Sheriff contends that Cermak Health Services has obtained approval to start administering a rapid testing process developed by Abbott Laboratories as of April 7. But when the Court asked at the hearing—on April 7—about the status of that testing, the Sheriff's counsel did not know whether or how it was being implemented. Rather, counsel said that this was up to Cermak, which is controlled by Cook County, not the Sheriff. The CDC’s guidance does not offer a specific recommendation on how widely testing should be done. It does imply, however, that people who are symptomatic should be tested if feasible. In light of the evidence that the Sheriff now has access to
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rapid coronavirus testing, it is not objectively reasonable for the Sheriff himself—not just Cermak Health Services—to fail to have a policy in place regarding implementation of prompt testing, in particular for detainees who exhibit symptoms consistent with coronavirus disease. See, e.g., Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (failure to have a policy may, in certain circumstances, constitute an unconstitutional policy).
2. Irreparable harm and inadequate remedy at law To meet the threshold requirement for a temporary restraining order, the plaintiffs must also demonstrate that without it, they will suffer irreparable harm for which they lack an adequate remedy at law. Whitaker, 858 F.3d at 1044, 1046. This requires a showing of more than a "mere possibility" of harm, but harm need not be a certainty in order for a court may grant relief. Id. at 1044. The plaintiffs have adequately shown a likelihood that they will suffer irreparable harm without a temporary restraining order. Some of the plaintiffs—at least those over the age of 65 or with preexisting health conditions—risk severe health consequences, including death, if they contract coronavirus disease. For others, a coronavirus infection may result in permanent lung damage. These grave risks to health are not an insignificant possibility for the plaintiffs, all of whom are housed in units or tiers in which a person has tested positive for coronavirus, all or nearly all of whom are housed in close proximity with others, and many and likely most of whom have not been given sufficient soap or sanitation supplies, let alone PPE. "[A] remedy for unsafe conditions need not await a tragic event." Helling v. McKinney, 509 U.S. 25, 33 (1993). And because the risk of harm to plaintiffs is a grave threat to their health and possibly their
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lives, they have shown a risk of harm for which "it is not practicable to calculate damages" and therefore has no adequate remedy at law. See Foodcomm Int'l v. Barry, 328 F.3d 300, 304 (7th Cir. 2003); cf. W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1126 (N.D. Ill. 2018) (no adequate remedy of law to address harm from prolonging child's separation from parent).
3. Balancing of harms "Once a moving party has met its burden of establishing the threshold requirements for a preliminary injunction, the court must balance the harms faced by both parties and the public as a whole." Whitaker, 858 F.3d at 1054. The nature of the balancing depends on the moving party's likelihood of success: the higher the likelihood, the more the balance tips in favor of granting injunctive relief. Id. The Sheriff argues that this balance tips against entry of a temporary restraining order because an injunction requiring him to implement additional health and protective measures would be disruptive to his ongoing efforts to address the spread of coronavirus in the Jail. The Sheriff also argues that the Court should defer to the Jail's practices and its execution of policies that preserve internal order, discipline, and security in the facility. See Bell, 441 U.S. at 547. The plaintiffs contend that their risk of severe health consequences or death as a result of coronavirus infection is so grave that it tips the balance in favor of granting a temporary restraining order. Additionally, the plaintiffs argue that the public health interest in limiting the spread of the virus also favors granting relief. The Court concludes that the balance favors granting injunctive relief to the plaintiffs to the limited extent contemplated by this order. First, as detailed above, the
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plaintiffs have presented ample evidence of conditions that pose an unreasonable risk of serious harm to the class members' health and at least some shortcomings in the Sheriff's mitigation of that risk. As the Court has detailed, this showing, on the points identified earlier, surpasses the plaintiffs' burden of showing a "better than negligible" chance of success. Whitaker, 858 F.3d at 1046. Furthermore, the interest of the public in containing the further spread of this highly contagious virus also favors granting relief to the plaintiffs.
The Court again acknowledges the deference owed to the Sheriff in the operation of the Jail and in his development of internal procedures to maintain safety, order, and security and to response to this severe crisis. The Court has taken these considerations into account in ordering the limited relief described in this order. The Court has tailored this relief to account for deference to the Jail's ongoing planning and efforts to address the risks associated with the coronavirus outbreak. The Court has also, as indicated earlier, taken into account the enhanced requirements for issuing what it has referred to as a "mandatory injunction." The risk to the health and safety of detainees and others is sufficient to invoke this form of relief. C. Remedy
For the reasons stated above, the plaintiffs have met the criteria for a temporary restraining order with regard to at least parts of the claim Count 1 of their complaint. The next question is what remedy is appropriate under the circumstances. The Court addresses in turn each category of remedy the plaintiffs seek.
1. Coronavirus testing The plaintiffs seek an order requiring the Sheriff to acquire access to rapid
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coronavirus testing and ensure that all people who enter the Jail with the virus can be quickly identified and medically isolated. They also seek an order requiring the Sheriff to quarantine all new detainees until test results become available or, if testing cannot be done, for fourteen days unless they become symptomatic.
In light of the evidence that the Sheriff now has access to rapid coronavirus testing, and for the reasons previously stated, the Court grants plaintiffs' request only to the following limited extent. The Court directs the Sheriff to establish by April 11, 2020, and to implement immediately thereafter, a policy requiring prompt coronavirus testing of detainees who exhibit symptoms consistent with coronavirus disease as well as, at medically appropriate times and to the extent feasible based on the acquisition of sufficient testing materials, detainees who have been exposed to others who have exhibited those symptoms or have tested positive for coronavirus.
Because evidence shows the Sheriff has a policy in place requiring a fourteenday quarantine of all new detainees (the apparent length of coronavirus's incubation period), the Court declines to require further testing or quarantining of new detainees before housing them in the general population, though the Sheriff should account for new detainees in his testing plan.
2. Quarantining and social distancing The plaintiffs also seek an order requiring the Sheriff to medically isolate all detainees who are positive for COVID-19 in a controlled, monitored environment in which they are not at risk for infecting others; quarantine all detainees who are symptomatic and/or have been exposed to a confirmed case of COVID-19 in such an environment; and mandate social distancing among all detainees. For the reasons
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described earlier, the Court at this time directs only that the Sheriff enforce, effective on April 11, 2020, social distancing during the new detainee intake process, including suspending the use of bullpens to hold new detainees awaiting intake.
3. Sanitation The plaintiffs next seek an order requiring the Sheriff to provide sufficient soap and hand sanitizer to all detainees so that they may frequently wash their hands. In addition, they seek an order directing the Sheriff to provide sanitation supplies to enable all staff and detainees to regularly sanitize surfaces and objects on which coronavirus could be present and to provide supervision to ensure that sanitizing takes place between uses of those surfaces and objects. They also seek an order directing the Sheriff to educate all staff and detainees on the importance of regularly sanitizing all surfaces and objects on which the virus could be present. For the reasons stated above, the Court directs the Sheriff to begin, by April 10, 2020, providing soap and/or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands. The Court also orders the Sheriff to begin, by April 10, 2020, providing adequate sanitation supplies to enable all staff and detainees to regularly sanitize surfaces and objects on which the virus could be present, including in all areas occupied or frequented by more than one person (such as twoperson cells, as well as bathrooms and showers). The Court further directs the Sheriff to establish, by April 11, 2020, a policy requiring sanitization between all uses of frequently touched surfaces and objects as well as monitoring and supervision to ensure that such sanitization takes place regularly. In light of evidence that the Sheriff has established education programs on preventative measures pertaining to
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coronavirus, the Court declines to impose any further requirements in this regard. 4. PPE For the reasons the Court has described, it declines plaintiffs' request for an
order requiring the Sheriff to provide all detainees with PPE. Instead, the Court orders the Sheriff, effective April 12, 2020, to provide facemasks to all detainees who are quarantined—i.e., those who have been exposed to a detainee who is symptomatic (even if not coronavirus-positive).
It appears to the Court that, as of the date of the hearing, the Sheriff is adequately enforcing the use of PPE by Jail staff who come into contact with detainees, so the Court declines to impose further requirements in that regard.
5. Adequate medical staff The plaintiffs request the Court to order the Sheriff to provide adequate medical staff to monitor all detainees within the Jail. Because the plaintiffs have pointed to no evidence that the Jail's medical staff are under the purview of the Sheriff, as opposed to Cermak Health Services, the Court declines to impose this requirement upon the Sheriff. The Court also notes that the record does not sufficiently reflect a current lack of adequate medical staff, making the requested relief inappropriate as part of a temporary restraining order even were this a matter under the control of the Sheriff. 6. Medical triage of vulnerable detainees For the reasons stated above, the Court declines to enter an order requiring the Sheriff to immediately identify or segregate all medically vulnerable detainees even if they are not showing symptoms.
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7. Transfer of Subclass B members Finally, the plaintiffs have requested an order requiring transfer of the putative members of Subclass B to a safe facility or other forms of custody. They contend that even the implementation of reasonable sanitation and other related procedures is insufficient to protect these class members, some of whom may already have been exposed to coronavirus, from contracting the disease. The Court concludes that plaintiffs have not demonstrated that the requirements of this temporary restraining order, coupled with the steps the Sheriff is already taking to prevent the spread of the disease, are insufficient and thus denies this requested relief.
Conclusion For the foregoing reasons, the Court grants in part plaintiffs' motion for a temporary restraining order [dkt. no. 2] with regard to Count 1 of the complaint but otherwise denies the motion. The Court enters a temporary restraining order to the extent explained in the relief section of this opinion. The Court directs the Sheriff to file a report by 4:00 p.m. on April 13, 2020 regarding his implementation of the Court's directives. The case is set for a telephonic status hearing before the undersigned judge, as emergency judge, on April 14, 2020 at 9:00 a.m. The Clerk will provide the parties with call-in information prior to April 14.

Date: April 9, 2020

________________________________ MATTHEW F. KENNELLY United States District Judge

37

 
 Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 1 of 37 PageID #:1745

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, et al., Plaintiffs-Petitioners, v.
THOMAS J. DART, Sheriff of Cook County,
Defendant-Respondent.

)

)

)

)

Case No. 20-cv-2134

)

)

The Hon. Matthew F. Kennelly

)

Emergency Judge

)

)

The Hon. Robert Gettleman

)

Presiding Judge

REPLY IN SUPPORT OF PLAINTIFFS’ RENEWED MOTION FOR A PRELIMINARY INJUNCTION AND FOR LIMITED, EXPEDITED DISCOVERY

INTRODUCTION The Sheriff’s response has clarified the path forward in this litigation. The Sheriff has

conceded that medically required social distancing is not possible with the current jail population

given the basic security requirements of running a jail. Doc. No. 62 at 19 (“[T]he Sheriff cannot

implement ‘full’ social distancing throughout the Jail at this time.”). The Sheriff having conceded

the point, this court should so find.

The Sheriff’s concession leads necessarily to the conclusion that, without a reduction of

the Jail’s population, the lives and safety of the persons confined there cannot be reasonably

protected. As a society, we have sacrificed our economy and upended every aspect of our collective

and individual lives because of the consensus that social distancing is critical to the protection of

health and life. That consensus applies no less to the presumptively innocent individuals who are

facing confinement as they await their trials, even if they cannot afford to pay the cash bonds

required for their release. Indeed, that is the judgment of every medical expert in this case. See

Declaration of Dr. Homer Venters, former Chief Medical Officer of the NYC Jail Correctional

Health Services (Ex. A hereto) ¶ 19; Declaration of Gregg Gonsalves, Yale Medical School

Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 2 of 37 PageID #:1746
Epidemiologist (Ex. G to Plaintiffs’ Renewed Motion for Preliminary Injunction (Doc. No. 55-7)) ¶ 29; Declaration of Dr. Amir Mohareb (Ex. B hereto) at 5-6; Declaration of Laura RasmussenTorvik (Ex. C hereto), ¶ 8. The Sheriff has proffered no contrary medical opinion. Thus, this court should also find that “social distancing” as defined by the Centers for Disease Control and Prevention (CDC), Illinois and federal emergency orders for the protection of the general public, and by Plaintiffs’ medical experts is necessary to reasonably protect individuals confined in the Jail.1
From these two findings, it follows that the court must address how to reduce the population of the Jail’s physical plant. Without such a reduction, the Jail is concededly incapable of protecting the due process rights of those confined there.
As we explain below, there are three practical steps that should be taken simultaneously. First, the court should convene a three-judge panel to consider whether and to what extent to enter a prisoner release order. See 18 U.S.C. § 3626(a)(3)(A). In light of the extreme urgency, Plaintiffs ask this court to request that this tribunal be convened immediately. Second, independently from the three-judge panel procedure, the court should order the Sheriff to transfer detainees to some other safe location of his choosing where they will remain in his custody. Third, the court should immediately determine the eligibility of the subclass A Plaintiffs to emergency habeas relief. In

1

The key feature of social distancing is that individuals be able to keep at least 6 feet (or 2 meters)

apart from other individuals. This is the position of the CDC (https://www.cdc.gov/coronavirus/2019-

ncov/prevent-getting-sick/social-distancing.html); the Illinois Department of Public Health

(http://dph.illinois.gov/sites/default/files/COVID-19_SocialDistancing.pdf); the American Medical

Association (https://www.ama-assn.org/delivering-care/public-health/covid-19-how-persuade-patients-

practice-social-distancing); the American Red Cross (https://www.redcross.org/about-us/news-and-

events/news/2020/coronavirus-what-social-distancing-means.html); Johns Hopkins Medicine

(https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-social-

distancing-and-self-quarantine); and the American Psychological Association

(https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-social-

distancing-and-self-quarantine), among others; see also infra Section I.

2

Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 3 of 37 PageID #:1747
light of the Sheriff’s acknowledgement that he has not done any medical triage of the most vulnerable (and in fact does not know who the medically vulnerable are)—even after the recent death of a third class member—there is a clear and present danger to the lives of the most medically vulnerable inside the Jail.
Finally, even as the release of some detainees is being addressed, the court must evaluate the conditions within the Jail for those who will remain behind bars. There is evidence of frequent breakdowns in the Sheriff’s sanitation regimens; there is great uncertainty about the extent of spread of the virus within the Jail and a serious question as to the adequacy of the Jail’s testing regimen; there has been rapid reallocation of housing within the Jail, potentially exposing detainees to unacceptable living environments, among other things. In the final section, Plaintiffs explain that—even though there is no factual dispute as to the necessity for reduction of the Jail’s population—targeted, expedited discovery, the conversion of the TRO into a Preliminary Injunction (or the extension of the TRO with good cause), and potentially an evidentiary hearing are necessary to ensure adequate conditions for those who will remain.
THE FACTS BEHIND THE JAIL WALLS The Evidence on the Imperative of Social Distancing Is Undisputed The Sheriff does not dispute that maintaining social distance is an imperative for protection against becoming infected with the novel coronavirus. It is a medical necessity—even for those confined in a jail. All of the evidence in this record supports that proposition. Plaintiffs have discussed in their previous filings the voluminous evidence in the public record on the imperative of social distancing. The CDC describes social distancing as “a cornerstone of reducing
3

Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 4 of 37 PageID #:1748
transmission of respiratory diseases such as COVID-19[,]”2 as “[t]he best way to prevent illness[,]”3 and as “extra important” for vulnerable individuals.4 Governor Pritzker has described social distancing as a “paramount strategy for minimizing the spread of COVID-19 in our communities[.]”5 The City of Chicago advises that “[w]ithout social distancing to slow the spread of COVID-19, the number of cases can increase so quickly that hospitals will not have nearly enough beds and equipment to care for all patients.”6
Medical and epidemiological experts agree. Dr. Homer Venters, an epidemiologist and correctional medical expert who formerly oversaw the delivery of medical care in New York City jails, has submitted a declaration opining that social distancing is among the most evidence-based and critical interventions to slow the spread of COVID-19. Ex. A ¶ 9. Because individuals can transmit the disease before becoming symptomatic, id., social distancing is “imperative to decrease rampant spread . . . and protect people’s health.” Id. ¶ 18.
Dr. Amir Mohareb, an infectious disease physician at Massachusetts General Hospital who is a member of that hospital’s Biothreats Response Team and an instructor at Harvard Medical School, has explained in his declaration that social distancing is the “primary means” of protecting public health. Ex. B at 5-6. Dr. Mohareb further explains that proper hygiene and the provision of surgical masks cannot serve as an adequate substitute for social distancing, given the inability of

2

“Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional

and Detention Facilities,” CDC, available at https://www.cdc.gov/coronavirus/2019-

ncov/downloads/guidance-correctional-detention.pdf.

3

“How to Protect Yourself & Others,” CDC, available at https://www.cdc.gov/coronavirus/2019-

ncov/prevent-getting-sick/prevention.html.

4

“What You Can Do,” CDC, available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/what-you-can-do.html.

5

Executive Order 2020-18, Apr. 1, 2020, available at

https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-18.pdf.

6

City of Chicago, Frequently Asked Questions (Apr. 17, 2020), available at

https://www.chicago.gov/city/en/sites/covid-19/home/frequently-asked-questions-.html?#faq-protect.

4

Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 5 of 37 PageID #:1749
surgical masks to protect individuals from airborne transmission of COVID-19 and the inability of proper hygiene to protect against both droplet and airborne transmission of the virus. Id. at 3, 5-6. The medical evidence instead establishes that “social distancing [is] a necessary intervention to prevent the spread of infection and downstream complications of COVID-19.” Id. at 6.
Dr. Gregg Gonsalves, an epidemiologist and professor at the Yale Schools of Medicine and Public Health, concluded that “ensuring that all detainees in Cook County Jail can socially distance from one another is the only way to prevent further, essentially uncontrolled, spread of the virus.” Doc. No. 55-7 ¶ 29. Dr. Gonsalves has further explained that the Jail’s ability to effect social distancing will have a direct impact on the utilization of county hospital beds (beds that are required for all County residents), as well as mitigating the harm to Jail staff and the public from an uncontrolled outbreak. Id. ¶¶ 29-31.
Dr. Laura Rasmussin-Torvik, Ph.D., Chief of Epidemiology in the Department of Preventive Medicine at Northwestern University and a member of the Northwestern faculty, concurs. Ex. C at ¶ 8 (“Given recent evidence of spread of COVID-19 from people without any symptoms (https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e1.htm) it is critical that all Illinoisans continue to practice social distancing, remaining 6 feet apart, practicing appropriate hand hygiene, and utilizing cloth masks whenever possible in order to control the spread of this disease.”).
Even the Sheriff agrees that social distancing is necessary. In a recent supplemental declaration, Michael Miller states that the Sheriff has “emphasized that detainees should maintain 6-feet of distance from each other.” Doc. No. 62-5 (Miller. Supp. Decl.) ¶ 18; see also Doc. No. 62 at 13 (“complete social distancing is the ideal”). Despite these admissions, the Sheriff continues
5

Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 6 of 37 PageID #:1750
to house Plaintiffs in a way that makes social distancing among detainees impossible because there are too many people in his custody to do otherwise.
The Sheriff Has Conceded That Social Distancing Is Impossible at Current Population Levels
The Sheriff concedes that he “cannot implement ‘full’ social distancing throughout the Jail at this time.” Doc. No. 62 at 19. This is not for lack of trying. The Sheriff appears to have taken dramatic steps to try to expand the Jail’s capacity, including by opening tiers that have been closed for some time. For example, since March 15 the Sheriff has opened Division 4, which had been closed entirely, as well as numerous tiers in Division 2. See Doc. No. 62-5 (Miller Supp. Decl.) at 11-14. Indeed, multiple detainees have reported that in the last few days they have been moved to mothballed units that appear not to have been used in year, many of which are filthy, lack heat, and lack running or potable water. E.g., Ex. D (Detainee Decls.) at 4, 11, 13.
These efforts are insufficient. First, the Sheriff’s submission concedes that detainees are still being confined in double cells. Doc. No. 62 at 20. Social distancing in a double celled environment is categorically impossible.
Second, the Court will recall expressing concern that given the tight bunk-bed arrangement in Division 2, even placing units in that Division at 50% capacity was unlikely to effectuate social distancing. See Apr. 7, 2020 Tr. at 24:9-20. Yet the Sheriff’s latest submission shows that of Division 2’s 40 dorm units, 20 are at above 40% capacity, ranging up to 70% and above. Doc. No. 62-5 at 9-12. A similar pattern appears in Division 8, a photograph of which is also included in Plaintiffs’ complaint. See Doc. No. 1 at ¶ 33 (bottom photograph). Of the 30 RTU tiers in Division 8, 21 are above 40% capacity, and 12 are at or near 70% capacity. Doc. No. 62-5 at 14. These tiers house hundreds of people who are unable to take the most basic protective measures against COVID-19. These detainees will be forced to sleep and live well within six feet of each other. Not
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Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 7 of 37 PageID #:1751

surprisingly, many of these tiers are quarantined, indicating that some of the detainees housed there
tested positive for COVID-19.
Third, the jail’s dorms and tiers are enclosed spaces in which dozens of detainees are
confined together. Thus even if detainees manage at times to achieve six feet of separation, that
will not be sufficient to address the health risk in such environments. As Dr. Amir Mohareb
explains, such settings are ideal environment for long-distance, airborne transmission of COVID-
19:
virus particles in small respiratory droplets (<5micrometres) that are emitted by an infected person can remain suspended in the air and remain infective over several hours and over long distances. Pathogens that travel via airborne transmission can infect persons even if they are wearing surgical or procedural masks. Healthcare workers protect themselves against airborne transmission by wearing specialized masks (N95 masks or Powered Air-Purifying Respirators) and by isolating infected persons in closed rooms with negative-pressure ventilation. Buildings or facilities with other forms of ventilation may spread aerosolized pathogens between rooms.
Ex. B (Mohareb Decl.) at 3.
Notably, this form of transmission is distinct from the large respiratory (>5micrometres)
transmission for which the six-foot rule is designed. Id. The jail’s detainee housing, needless to
say, is not a negative pressure environment, nor is it well ventilated. Hundreds of detainees, in
other words, still sit all day in close proximity to numerous other detainees, in poorly ventilated
rooms that will allow any one of them to pass on a virus that can survive in the air for at least three
hours. Id. In such environments, as Dr. Mohareb notes, the cloth masks that detainees have been
provided (see Doc. No. 62-5 (Miller Supp. Decl.) ¶ 23) are not adequate protection against airborne
transmission. Id. at 5-6. Indeed as the CDC cautions, effective social distancing is required “even when you wear a face covering.”7

7

“Social Distancing, Quarantine, and Isolation,” CDC, available at

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.

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Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 8 of 37 PageID #:1752
Finally, the jail’s dorms and tiers are simply not set up to isolate large numbers of people. To the contrary, they are designed in a manner that ensures large numbers of people will touch the same things, constantly. As can be seen from the complaint photos of Tiers 2 and 8, for example, dozens of detainees share common bathrooms, showers, sinks, toilets, meal tables, microwaves, and the like. The same situation exists on other tiers, even those with individual cells. Ex. D (Detainee Decls.) at 2-3, 7-8, 10, 14. Although increased cleaning will certainly help, each of those surfaces inevitably will be touched by numerous different people throughout the day— compounding the risk of transmission.
In the present emergency, the design of the jail makes it impossible to imprison so many persons in a reasonably safe manner. As a district court recently explained, “the only way to stop [COVID-19’s] spread is through preventive measures—principal among them maintaining physical distancing sufficient to hinder airborne person-to-person transmission. Creating physical distancing is uniquely difficult in a congregate environment like a prison. . . . [which is] a problem shared by all prisons” alike. Coleman v. Newsom, 2020 WL 1675775, at *5 (E.D. Cal. Apr. 4, 2020) (citations omitted, emphasis original).
ARGUMENT I. THE CONSTITUTION PROTECTS CLASS MEMBERS FROM A SERIOUS AND
UNREASONABLE RISK TO THEIR HEALTH AND SAFETY. It cannot be consistent with due process to allow the Jail’s detainees to remain in an environment in which they are unnecessarily and unreasonably exposed to a potentially deadly, life-altering coronavirus. The consensus of medical and epidemiological judgment on the record of this case is that such a practice is intolerable and cannot be justified. Due process requires that detainees in a jail be protected from conditions that “pose an unreasonable risk of serious damage to . . . future health.” Helling v. McKinney, 509 U.S. 25, 35
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Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 9 of 37 PageID #:1753

(1993); see also Powers v. Snyder, 484 F.3d 929, 931 (7th Cir. 2007) (The Eighth Amendment protects prisoners from known exposure to serious diseases, and in such circumstances, “[t]he prison must be allowed to choose between removing the prisoner from the unhealthy environment and protecting him from its consequences . . . provided, of course, that the protection is efficacious.”); Mark v. Officers Olson, Haglin, Harsma Granton’s 1st, 2nd, 3rd Shift Officers Between Dates of 7-29-02, 8-13-02, 2003 WL 23221515, at *7-8 (W.D. Wis. Oct. 21, 2003) (plaintiff properly alleged that prison officials acted with deliberate indifference to his health when they knowingly placed another inmate who had been diagnosed with hepatitis B and hepatitis C in his cell, for “[c]ertainly, in some cases, the risk of harm in placing a healthy inmate in the same cell as one with a communicable disease would be significant enough to be considered cruel and unusual punishment.”).8 So too here: it cannot pass constitutional muster to allow detainees in the Jail to live in close proximity to others who may be infected with a deadly virus.
The Sheriff contends that he has satisfied the Fourteenth Amendment by complying with the CDC’s Guidance for jails and prisons because that guidance essentially tells him to do the best he can to socially distance, understanding he has no control over jail population. But the CDC’s guidelines to jails to do the best they can to protect confined prisoners as practicable based on current population and space limitations does not, by definition, purport to be a statement of what

8

Scores of cases nationwide reinforce this principle, and show that, even if held to an Eighth

Amendment standard, the Sheriff would be liable for failing to provide protection from a risk of serious

medical harm. See also, e.g., Washington v. Denney, 900 F.3d 549 (8th Cir. 2018) (failure to protect an

inmate from exposure to secondhand smoke constitutes deliberate indifference to his serious medical need);

Ball v. LeBlanc, 792 F.3d 584 (5th Cir. 2015) (failure to remedy extreme temperatures and sanitation issues

in prisons constitutes deliberate indifference); Spencer v. Bouchard, 449 F.3d 721 (6th Cir. 2006) (in § 1983

action against a county sheriff in Michigan, court found that “[t]he fact that cold, wet conditions existed

would have been obvious to anyone in the vicinity . . . [a]lthough jail officials might be unaware (due to

unfamiliarity) that certain conditions are dangerous, the fact that exposure to cold, wet conditions for

months at a time is a substantial risk is so obvious as to merit no further discussion.”); Gray v. Hardy, 826

F.3d 1000 (7th Cir. 2016) (failure to address birds and pests within an inmate’s cell constitutes deliberate

indifference); Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995) (failure to protect inmates from exposure to

asbestos-containing insulation constitutes deliberate indifference).

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Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 10 of 37 PageID #:1754
is medically required, much less a repudiation of the CDC’s general scientific guidance. On this question, the CDC can set neither a constitutional floor nor a constitutional ceiling for jails on what is objectively reasonable—that is for this Court to decide, in light of the particular conditions that Plaintiffs are experiencing and the particular risks that they face as a result. See United States v. Proano, 912 F.3d 431, 439 (7th Cir. 2019) (the Constitution, “not departmental policy, sets the constitutional floor”); Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (administrative regulations “shed[] no light on what may or may not be considered ‘objectively reasonable’”).
In Thompson, the Seventh Circuit held that an administrative order regarding use of force had no relevance to the question of whether a police officer’s use of force was “objectively reasonable” under the Fourth Amendment. 472 F.3d at 454-55. The court explained that because an assessment of objective reasonableness demands particular consideration of the precise circumstances of the case, administrative guidance and general orders were not “reliable gauges” of what was required by the Constitution. Id. at 455. In Proano, the Seventh Circuit explained that administrative guidance and the like are admissible in cases where intent is at issue—because a deviation from guidance and training permits an inference of culpable intent—but often are not relevant in cases that lack a specific-intent requirement. 912 F.3d at 439.
Administrative guidance may have some relevance in certain situations, like when the reasonableness of the particular circumstances involves consideration of issues for which expert testimony would helpful to the trier of fact to understand the evidence. See United States v. Brown, 871 F.3d 532, 537 (7th Cir. 2017). But even if relevant, this type of evidence must be assessed in light of the other expert testimony and evidence in the case, including all of the CDC’s guidance about COVID-19, and the court must ensure that the constitutional inquiry “is governed by
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constitutional principles, not [administrative] regulations.” Id. at 537; see also England v. Allen, 2019 WL 2743481, at *5 (N.D. Ill. July 1, 2019) (describing the slight relevance that administrative regulations have in objective reasonableness inquiry).
The Sheriff’s citation to Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001), supports the principle. Doc. No. 62 at 17. In Carroll, the Seventh Circuit determined that no reasonable jury could find that the defendant had the requisite subjective disregard for health and safety required by the Eighth Amendment, given his compliance with mandatory state standards. 255 F.3d at 473. But in Carroll, the EPA standard at issue reflected the agency’s judgement about an acceptable safety standard for all people—the EPA did not single prisoners out for less protection from water contamination, or conclude that a higher risk of cancer was acceptable for prisoners than the public at large. Id. at 473.
The CDC Guidance at issue here does something else entirely. The Guidance encourages correctional institutions to implement social distancing, but only to the extent practicable given the facility’s particular circumstances.9 The CDC’s correctional guidance effectively abandons the social distancing recommendation to the extent that a jail’s population and its physical plant make social distancing impracticable. But it is not for the CDC to decide whether it is objectively reasonable to expose pretrial detainees to serious medical risks that our society has deemed intolerable for everyone else; that is a decision for this court.
The Sheriff thus wrongly implies that the CDC Guidelines for jails indicates that the CDC believes that social distancing can safely be abandoned in jails. To the contrary, public health authorities, the CDC first among them, have issued a raft of admonishments that effective social distancing is critical for stopping the spread of COVID-19.10

9

See supra n.2.

10

See supra n.1.

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The CDC’s Guidance for individuals11 explains that “keeping space between you and

others is one of the best tools we have to avoid being exposed to this virus and slowing its spread.”

CDC therefore advises individuals to:

•

Stay at least 6 feet from other people, “even when you wear a face covering”

•

Do not gather in groups

•

Stay out of crowded places and avoid mass gatherings

•

Avoid grocery shopping; use a delivery service

•

Work from home

•

Avoid public transportation

The CDC’s guidance for public officials place this individual guidance in context,

recommending that when there is community spread, officials should consider closures of schools,

workplaces, and even assisted living facilities and religious congregations. Other authorities are

equally emphatic. The Illinois Department of Public Health recommends that people stay at least

six feet apart, avoid public transportation, work from home, use a delivery service instead of

shopping, suspend schooling, and the like.12 The American Medical Association likewise

recommends that “[p]hysical distancing and staying at home are the key to slowing the spread of 2019 novel coronavirus,” and likewise recommends a six-foot separation,13 as does the American Red Cross.14 And the court, of course, is witness to this advice playing out in the most dramatic

fashion. On the advice of these same authorities, to accomplish social distancing, we have shut

down our national economy, with catastrophic and cascading effects across the country. If public

11

“Social Distancing, Quarantine, and Isolation,” CDC, available at

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.

12

“COVID-19 Social Distancing,” Ill. Dep’t of Pub. Health, available at

http://dph.illinois.gov/sites/default/files/COVID-19_SocialDistancing.pdf.

13

“AMA, AHA, ANA: #StayHome to confront COVID-19,” AMA, available at https://www.ama-

assn.org/press-center/press-releases/ama-aha-ana-stayhome-confront-covid-19.

14

“Coronavirus – What Social Distancing Means,” Am. Red Cross, available at

https://www.redcross.org/about-us/news-and-events/news/2020/coronavirus-what-social-distancing-

means.html.

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health authorities believed that other measures could effectively manage the disease, they would have recommended them instead.
Fundamentally, the Sheriff may not point to the CDC Guidance as the arbiter of his compliance with the Constitution. The CDC’s Guidance merely acknowledges that jails and prisons may not be able to implement proper social distancing. It urges these institutions, in effect, to do their best within the limits of the carceral environment. But that cannot be taken to say that to place the Jail’s detainees at a high risk of contracting a deadly disease—a risk that our society has deemed unacceptable—comports with the Fourteenth Amendment. II. THE COURT MAY MAKE THE NECESSARY FINDINGS AND BEGIN THE
STEPS NECESSARY TO CONVENE A THREE JUDGE PANEL TO CONSIDER RELEASE OF DETAINEES. Plaintiffs urge the court to request the convening of a three-judge panel to determine whether and to what extent a prisoner release order should be entered in this case. 18 U.S.C. § 3626(a)(3)(A). Plaintiffs further request that this court simultaneously enter a preliminary injunction mandating the Sheriff to permit detainees to socially distance from one another, except in an emergency situation. A. This Court Should Immediately Request That A Three-Judge Panel Be
Convened. The Prison Litigation Reform Act (PLRA) prohibits a prisoner release order to be entered unless a court has “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right” at issue, and the defendant has had “a reasonable amount of time to comply” with prior court orders. 18 U.S.C. § 3626(a)(3)(A). Once these conditions are satisfied, a three-judge panel should be convened, either upon request of the party seeking the order or sua sponte by the court, following the procedures set forth in 28 U.S.C. § 2284.
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The conditions of Section 3626(a)(3)(A) have been satisfied. First, the court has already entered an injunctive order for less intrusive relief. On April 9, 2020, this court issued a temporary restraining order, directing the Sheriff to (a) establish a policy requiring prompt testing of symptomatic detainees and, to the extent feasible, those who were exposed to symptomatic or confirmed COVID-19 detainees; (b) effect social distancing for detainees during the intake process (and to suspend the use of bullpens during intake); (c) provide soap or hand sanitizer to detainees in quantities sufficient to permit frequent hand-cleaning, provide sanitation supplies sufficient to permit regular sanitization of surfaces on which the virus could be present, and establish a policy requiring sanitization of frequently touched surfaces between uses (with compliance monitoring); and (d) provide facemasks to detainees who have been exposed to a symptomatic detainee. Doc. No. 47 at 34-36.
Second, as described above, that Order has failed to remedy the constitutional violation at issue in this case: the objectively unreasonable conditions of confinement that Plaintiffs are forced to endure as a result of the COVID-19 outbreak at the Cook County Jail. 18 U.S.C. § 3626(a)(3)(A)(i); Brown v. Plata, 563 U.S. 493, 514 (2011) (Section 3626(a)(3)(A)(i) “is satisfied if the court has entered one order, and this single order has failed to remedy the constitutional violation.” (internal quotation marks omitted)). The Sheriff has admitted that social distancing, which the undisputed evidence establishes is necessary to protect Plaintiffs’ right to objectively reasonable conditions under the Fourteenth Amendment, is impossible without reducing the population in custody at the Jail. Doc. No. 62 at 20. See Brown, 563 U.S. at 515 (holding that the three-judge panel was properly convened because, even though more recent orders had been entered, the evidence did not “provide assurance that further, substantially similar efforts would yield success absent a population reduction”); see also Roberts v. County of
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Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 15 of 37 PageID #:1759
Mahoning, 495 F. Supp. 2d 694, 697 (N.D. Oh. 2006) (convening three-judge panel after finding by the court that it was “unlikely that the plan to maintain constitutional population levels at the jail [would] be effective without . . . a prisoner release mechanism.”).
Finally, the Sheriff has had a reasonable time to comply with this court’s orders under these unprecedented circumstances. As of the date of this filing, the Sheriff has had 10 days to comply with the court’s TRO order. In ordinary times, the Sheriff might reasonably insist on more time for compliance with changes in jail conditions. But as courts have acknowledged, “the status quo of a mere few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly.” Thakker v. Doll, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020). Each day the number of confirmed COVID-19 cases in the country and the state grows larger, and despite the Sheriff’s unilateral and unsupported assertion that COVID-19 cases at the Jail are under control, the medical and statistical evidence—including the 78.5% positive rate of detainees at the Jail who are being tested, Ex. C (Rasmussen-Torvik Decl.)— suggests that the outbreak is far greater than the Sheriff claims, and the rate of infection remains uncontrolled. See also Doc. No. 55-4 (Ex. D to Pl.’s Mot. for Prelim. Inj.) at 6 (projecting that 1,240 detainees will have contracted COVID-19 in one week’s time).
In these extraordinary times, with death and severe illness so imminent if social distancing does not immediately occur, 10 days is a “reasonable amount of time to comply” with this Court’s orders for purposes of Section 3626(a)(3)(A)(ii). Coleman, 2020 WL 1675775, at *4 n.9 (“We recognize that what is reasonable in ordinary times may be quite different from what is reasonable in these extraordinary times.”); id. at *9 (Mueller, C.J., concurring) (concurring that plaintiffs must seek precedent injunctive relief before a three-judge panel is convened, but emphasizing “the availability of expedited proceedings . . . to immediately exhaust” the precedent relief).
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In sum, Plaintiffs have demonstrated that the conditions precedent to convening a threejudge panel are met. The situation is emergent, and the time for convening such a panel is now.
B. An Injunction Should Issue Mandating Social Distancing in the Jail. While the court is processing the request for a three-judge panel, it should simultaneously order the Sheriff to mandate all possible social distancing throughout the Jail. Social distancing is required to remedy the ongoing constitutional violation suffered by Plaintiffs. Nothing in the PLRA prohibits this court from continuing to enter remedial orders while the process for convening a three-judge panel is ongoing. To the contrary, the Supreme Court has determined that the PLRA permits such an approach because a contrary reading of the statute “would in effect require district courts to impose a moratorium on new remedial orders before issuing a population limit.” Brown, 563 U.S. at 516. So long as the Sheriff has had a reasonable time to comply with the Court’s social-distancing order by the time a three-judge panel enters a prisoner release order (which, as explained above will be inherently satisfied given what constitutes a “reasonable time” in these extraordinary circumstances and the Sheriff’s concession regarding its ability to effectively socially distance at the Jail with the current population), Section 3626’s requirements will be satisfied. Id. An injunction mandating social distancing would meet the need-narrowness-intrusiveness criteria required by the PLRA. As discussed in Plaintiffs’ April 6 brief on the applicability of the PLRA to Plaintiffs’ requests for relief, Section 3626(a)(1)-(2) requires the Court to make findings that any preliminary injunction orders are “narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); Fields v. Smith, 653 F.3d 550, 558 (7th Cir. 2011). The Court must also give substantial weight to any adverse impact on public safety or
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the operation of a criminal justice system. Id. § 3626(a)(1). The need-narrowness-intrusiveness inquiry is case-specific, and “must be undertaken in light of both the magnitude of existing constitutional violations and the available alternative remedies.” Morales Feliciano v. Rullan, 378 F.3d 42, 54 (1st Cir. 2004).
In this case, the evidence is clear and it is one-sided: social distancing is the only way to meaningfully reduce rampant transmission of the virus inside the Jail. This Court’s prior, less drastic, injunctive orders have not sufficed. Plata v. Schwarzenegger, 603 F.3d 1088, 1097-98 (9th Cir. 2010) (affirming court’s injunctive order based, in part, on the failure of less intrusive injunctive orders). The Sheriff’s own submission, arguing that he is objectively reasonable because he has made efforts to implement social distancing, acknowledges that social distancing is required in order to protect detainees’ Fourteenth Amendment rights. Doc. No. 62 at 6; see also Braggs v. Dunn, 383 F. Supp. 3d 1218, 1253 (M.D. Ala. 2019) (agreements between the parties are “compelling evidence” that the injunctive relief request satisfies the need-narrownessintrusiveness criteria). And the Sheriff has proposed no alternative relief that he contends would be less intrusive or more narrowly tailored, suggesting that there is no other relief that would suffice. Plata v. Schwarzenegger, 2008 WL 4847080, at *8 (N.D. Cal. Nov. 7, 2008) (noting that, despite objecting to the proposed injunctive relief, “[d]efendants have not once—even in these contempt proceedings—suggested any relief that would be less intrusive”).
The Sheriff contends that the PLRA bars an order mandating social distancing because it “would impede the Sheriff’s ability to address security and medical issues that may arise.” Doc. No. 62 at 12. But the Sheriff offers no support for or explanation of this contention. To the contrary, the definition of social distancing proposed by Plaintiffs—an order requiring the Sheriff to permit detainees to socially distance from one another by at least six feet, except in an emergency—will
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provide all of the leeway necessary for the Sheriff and his employees to break up fights or escort detainees for medical attention, as alluded to in the Sheriff’s brief. Id.
And such an order could also permit the Sheriff to have maximum discretion in determining how to effect social distancing, given the physical layout of the Jail, and the number of staff and detainees. See Pierce v. County of Orange, 761 F. Supp. 2d 915, 947-48 (C.D. Cal. 2011) (“With regard to intrusiveness, the Court must take care not to enmesh [itself] in the minutiae of prison operations . . . and the Court satisfies the intrusiveness prohibition by ordering a defendant to draft and promulgate a plan, which leaves to the defendant discretion to determine the details of how to deliver the relief ordered.” (internal quotation marks omitted)).
In sum, consistent with the PLRA, the court should (1) convene a three-judge panel immediately and (2) enter an injunctive order at this time to require the Sheriff to implement and maintain social distancing throughout the Jail. No further hearing is necessary on this question because the record is uncontested on the medical and scientific need for social distancing. III. THE COURT MAY ORDER THE RELEASE OF VULNERABLE PRETRIAL
DETAINEES THROUGH HABEAS CORPUS. Plaintiffs seek writs of habeas corpus for the members of subclass A—those who are particularly vulnerable to COVID-19 because of their age or underlying medical problems. Elderly and medically vulnerable individuals are particularly in need of the court’s intervention. They are at heightened risk of contracting serious COVID-19 and experiencing excruciating illness when they do. And yet, the Sheriff admits that he has yet even to identify them. In the Sheriff’s view, he is “under no constitutional obligation to affirmatively identify and ‘triage’ certain detainees based on their health condition.” Doc. No. 62 at 23. This is untrue. When state officials “strip [prisoners] of virtually every means of self-protection and foreclose[] their access to outside aid, [they] are not free to let the state of nature take its course.” Farmer v. Brennan, 511 U.S. 825, 833 (1994).
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For the Sheriff to fail even to identify the vulnerable in his care in this time of crisis defies accepted medical correctional standards and deviates from general practice for correctional facilities nationwide.15 Ex. A (Venters Decl.) ¶¶ 25, 28(b).
Bearing in mind the constitutional protections owed prisoners in the wake of the COVID pandemic, federal courts across the country have granted emergency relief brought on behalf of vulnerable individuals in custody. See, e.g., Thakker, 2020 WL 1671563; Coronel v. Decker, ___ F.Supp.3d ___, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); see also Basank, et al. v. Decker, et al., No. 20 C 2518, Doc. No. 11 (S.D.N.Y. Mar. 26, 2020); Flores, et al. v. Barr, et al., No. 85 C 4544, Doc. No. 740 (Mar. 28, 2020) (attached as Group Ex. E). The court in Thakker noted that “the status quo of a mere few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly . . . . The choice we now make must reflect this new reality.” Thakker, 2020 WL 1671563, at *9. It held that even though the

15

The Sheriff argues that it is impossible for his Office to identify the vulnerable under his current

procedures, since the health alerts placed on detainees (presumably at intake when detainees are screened

by the Jail) do not provide specific medical information but only operational information related to

detainees’ health conditions. This procedural failure to share vital information between the Sheriff and his

contracted medical provider does not somehow prevent this court from ordering a remedy. Fundamentally,

a Sheriff cannot contract away his constitutional obligations to protect the medically vulnerable, for

instance, by shifting the onus of care to contracted healthcare entities. But see Doc. No. 62 at 24 (“Cermak

Health Service, the proper entity to monitor detainees with any medical issues, continues to provide full

care for all detainees at the Jail.”). See, e.g., Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1250 (6th Cir.

1989) (“[S]ince the Sheriff is here in his official capacity . . . the Sheriff is not excused from liability due

to having contracted out the medical care.”). And the fact that Cermak, and not the Sheriff, may be the

relevant covered entity under HIPAA has no bearing at all on Plaintiffs’ constitutional rights. In any event,

a court order mandating the identification of medically vulnerable individuals in the Jail cures any potential

privacy or regulatory objections. See National Abortion Federation v. Ashcroft, 2004 WL 292079, at *3

(N.D. Ill. Feb. 6, 2004) (citing 45 C.F .R. § 164.512(e)(1)(i)) (“HIPAA allows a hospital such as

Northwestern to disclose patient medical records subject to a court order.”); see also United States v. James,

2007 WL 914242, at *30 (Mar. 21, 2007) (“[T]he government raises concerns concerning disclosure of

these records under the Privacy Act, 5 U.S.C. § 552a(b) . . . and HIPAA regulations. However, the Staff

Attorney for the Bureau of Prisons himself concedes that ‘a Court order is sufficient to overcome these

obstacles,’ noting that such an Order ‘requires the Court to weigh the public interest in the information

sought against the privacy interests affected by their release.’”).

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conditions in the local federal detention facilities were not insufficient because of intent or malice, “should we fail to afford relief” to medically vulnerable prisoners “we will be a party to an unconscionable and possibly barbaric result.” Id.; see also id. (“Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue.”). The district court accordingly granted a temporary restraining order requiring the immediate release of 11 prisoners in federal custody who suffered from chronic medical conditions and who faced a serious threat of injury or death if exposed to COVID-19. Id. at 2, 24–25.
Here, the members of subclass A should be released via writs of habeas corpus. The Sheriff does not quarrel with Plaintiffs’ ability, as a general matter, to seek habeas relief in a representative action. He does not challenge the reasoning of Bijeol v. Benson, 513 F.3d 965, 968 (7th Cir. 1975), which authorizes such an action. See also U.S. ex rel. Morgan v. Sielaff, 546 F.2d 218, 221 (7th Cir. 1976); U.S. ex rel. Green v. Peters, 153 F.R.D. 615, 617 (N.D. Ill. 1994). Nor does the Sheriff dispute the proposition that habeas is an appropriate vehicle to litigate the question of whether a confined person must be released because the conditions of his confinement are unconstitutional. See, e.g., Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005).
The Sheriff opposes habeas relief for two reasons. First, he claims that a representative habeas action in this particular case is inappropriate because of the need for individual determinations of whether the release of each class member is warranted. Second, he urges dismissal of the habeas claim on the theory that, even those class members who availed themselves of the Judge Martin procedure should be barred by the exhaustion doctrine. Neither argument defeats this habeas claim.
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A. The Common Questions in this Case Should Be Decided Together. There is a set of common questions in this case that are well suited to resolution on a class wide basis.16 Fundamental among these questions is whether detainees in the Jail, as a matter of due process, are entitled to an opportunity to practice social distancing consistent with those in the community at large. There are a number of subsidiary questions: (1) what risks are associated with the failure to socially distance in the Jail?; (2) what has been the effect, in terms of spread of the coronavirus, of the Jail’s inability to provide social distance for detainees and Jail staff?; (3) to what extent can the remedy of release reduce risk of serious illness or death for detainees, staff and the public?; (4) are there improvements to the conditions in the Jail, short of enabling social distancing, that might be sufficient to comport with due process?

16

It is unclear whether the Sheriff’s contentions regarding the unsuitability of the case to class

resolution are intended to apply only to Plaintiffs’ habeas claim or whether those arguments are directed

against the Section 1983 claims as well. If the latter, they would also fail for the reasons stated in this

section and an additional reason: the “inherently individualized” process the Sheriff references will not

play into this Court’s factual findings or legal conclusions on the Section 1983 claims. This is a textbook

prison-conditions class action in which Plaintiffs challenge the circumstances under which they are

confined. Claims challenging jail-wide conditions are paradigmatic class actions. See Postawko v.

Missouri Dep’t of Corr., 2017 WL 3185155, at *14 (W.D. Mo. July 26, 2017), aff'd, 910 F.3d 1030 (8th

Cir. 2018) (citing 1 H. Newberg & A. Conte, Newberg on Class Actions § 4.34 (5th ed. 2016 update))

(“For example, if a prisoner in a prison conditions lawsuit secures a ruling that a prison policy violates the

Constitution, the court-ordered injunctive relief will necessarily apply to all other prisoners.”); Id. (citing

Charles Alan Wright, et al., 7AA Fed. Prac. & Proc. Civ. § 1776 (3d ed. 2017 update)) (“[I]t should be

noted that a common use of Rule 23(b)(2) is in prisoner actions brought to challenge various practices or

rules in the prisons on the ground that they violate the constitution. For example, Rule 23(b)(2) class

actions have been utilized to challenge prison policies or procedures alleged to . . . violate the prisoners’

Eighth Amendment rights to be free from cruel and unusual punishment.”); see also Holmes v. Godinez,

311 F.R.D. 177, 219 (N.D. Ill. 2015) (granting class certification in prison-conditions case “is consistent

with numerous other courts that have found, after Wal-Mart, that the commonality requirement was met

in cases where prisoners alleged system-wide practices and/or failures resulting in constitutional and

statutory violations” and collecting cases). And if indeed this case proceeds to a three-judge court and

release is determined to be necessary, a class action again is appropriate and perhaps even mandatory. A

resulting order will require the Sheriff to reduce the population in his custody, and he can choose whom

to release; the court will not be asked to resolve a single individualized question regarding health or

safety. See Brown, 563 U.S. at 502 (2011).

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These are complicated factual questions. The record of this case already includes voluminous evidence regarding conditions in the Jail, the nature and scope of the Jail’s response to the pandemic, medical and epidemiological evaluations of the quality and effect of the Jail’s response and, more broadly, the threat posed by the coronavirus and the interventions that will mitigate spread, among other things. All of this evidence is necessary to “generate common answers” to the question of whether due process permits the vulnerable members of subclass A to remain in the Jail. Wal-Mart v. Dukes, 564 U.S. 338, 360 (2011).
Moreover, there are critical common legal issues, such as the availability of habeas corpus as a remedy when immediate circumstances render it impossible to safely confine a person; the applicability of the exhaustion doctrine to the subclass’s claims under the circumstances; and the constitutional merits of whether it is “objectively unreasonable” for a medically vulnerable person to be exposed on an ongoing basis to a serious risk of contracting a potentially deadly virus.
The Sheriff would prefer scores of individual habeas petitions in which the declarations, the medical and epidemiological expertise, and the Jail records would be separately assembled (if, indeed, each of the individual class members individually had the resources to do so) and then would be evaluated separately for each class member. The process would not just be massively wasteful and cumbersome; it would needlessly risk the safety of class members, jail staff, and the public as the virus continues to spread while different judges are forced to churn through the same complex and voluminous material. It would also require the Sheriff and his lawyers to separately brief the same dispositive legal issues before several courts, each of which may come to different legal conclusions.
Clearly, the preferable approach is class-wide resolution of the factual and legal questions on which the due process rights of the members of subclass A depend. To be sure, there are
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individual questions that bear on the circumstances and conditions under which the members of the class would be released: individuals with documented exposure to COVID-19 should be released with assurance that they will be medically monitored and will socially isolate; individuals whose charges and/or criminal backgrounds suggest public safety concerns should be released subject to conditions, such as electronic monitoring; individuals at particularly elevated risk of contracting serious COVID-19 should be prioritized for prompt release.
These questions can and should appropriately be resolved via brief, individual proceedings. Such an approach—class-wide determination of the broad, central legal and factual questions that drive the class’s entitlement to relief followed by individual assessments of the particular remedy—have long been commonplace in class litigation. See, e.g., Barnes v. District of Columbia, 278 F.R.D. 14, 18 (D.D.C. 2011) (approving class action where liability and “general” damages were to be resolved on class-wide basis but individual damages may remain); Dunn v. City of Chicago, 231 F.R.D. 367, 370 (N.D. Ill. 2005) (same). It is therefore appropriate for Plaintiffs’ habeas claim to proceed on a class wide basis.
B. The Habeas Claim Is Not Barred by the Exhaustion Doctrine. Plaintiff Foster availed himself of the special bond review procedure that Judge Martin established in response to the pandemic. He was denied relief. The Sheriff nonetheless insists that Foster did not sufficiently exhaust State remedies because he did not pursue “reconsideration” or appeal of the ruling denying reduction of the financial conditions of his pretrial release made in his case on April 2. The argument should be rejected. Plaintiffs have provided uncontested facts demonstrating the futility in this emergency context of pursuing the full panoply of available appeals with respect to an unsuccessful motion for bond review. An appeal pursuant to Illinois Supreme Court Rule 604(c) takes time to prepare
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and for the Appellate Court to consider; such claims will not be resolved for weeks. See Doc. No. 55 at 15; Doc. No. 55-3 (Decl. of Lester Finkle). With the death toll from COVID-19 climbing hourly and daily, these appellate remedies are not available in practice to the medically vulnerable whose risk is ongoing and escalating.
This court based its April 9 ruling on Plaintiff Foster having made “no effort to initiate” the special Judge Martin bail review procedure. Plaintiffs have corrected the record; Foster did initiate the procedure, and was denied. The Sheriff offers no argument to refute Plaintiffs’ demonstration that appeals and petitions to the Illinois Appellate and Supreme Courts would entail delay that would necessarily force Foster to suffer at length the very constitutional violation he seeks to avoid. The Sheriff does not dispute the factual or legal demonstration Plaintiffs have made on this point in their earlier filings. See Doc. No. 62 at 6-7.
The Sheriff’s argument inadvertently highlights an independent dispositive point on exhaustion: the state court “bond review” proceedings are not a forum in which to decide the federal claim brought by class members in this case. In addition to the practical inability to offer the kind of evidentiary record requiring release as a matter of due process in an individual statecourt bond review hearing, there is a more central legal obstacle to doing so: Illinois statutory law governing bail provides consideration of 37 factors when determining conditions of pretrial release; a detainee’s medical health is not one of them. 725 ILCS 5/110-5. Whatever the public health impetus behind Judge Martin convening special proceedings to reconsider financial conditions of release, those proceedings (and any appeals that flow from them) were neither required nor expected to rule on medical conditions inside the jail.
The Sheriff himself makes the crucial point. He explains that state court defendants like Foster were denied reduction in monetary bond because “the assessment of risk to the public
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evidently outweighed any perceived risk to their health.” Doc. 62 at 25. Thus, the Sheriff concedes, the state court applied Illinois law to reject pretrial release (or reduced monetary bond) based on factors other than medical need, such as predictions of a person’s future dangerousness. Id. That is the essential legal difference between the legal questions decided in the state court bond hearing and the federal habeas proceedings here: even if a person proved in a state court bond proceeding that the jail poses unreasonable risk to their health, the state court may still weigh the Illinois state law factors and order pretrial detention in the County Jail.
But that is not the case for Foster’s claims in this court. For the due process claims brought in this federal case, the remedy is categorical: if Foster proves that his ongoing detention inside the Cook County Jail is a serious and unreasonable risk to his health and life, then habeas relief will ultimately be granted. Whether the Sheriff chooses to release him from the Cook County Jail to lockdown at a local hotel, to electronic home confinement, or with other conditions that the Court deems reasonable, some form of release from his custody would be required if a medically vulnerable person prevails on his federal due process claim that pretrial detention threatens his life under current conditions in the Cook County Jail.
Thus, for the purposes of the unique, narrow due process claim raised here, even if exhaustion of the existing state court procedures were not futile because of their timing (which it is), the Sheriff agrees that the state court is actually not legally competent—much less required— to resolve that freestanding federal question in the context of following the Illinois bond statute.
C. This Court Should Also Exercise Its Authority to Release Medically Vulnerable Subclass Members on Unsecured or Non-Monetary Bail Conditions Pending Review of Their Request for Habeas Relief Under § 2241.
Courts of equity operate with flexibility, especially in emergencies of great consequence. Plaintiffs recognize the unprecedented nature of this request for federal habeas relief for Foster
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and the other medically vulnerable people confined with him. But the events unfolding around us are unprecedented. This court has the power to protect the lives and constitutional rights of the subclass. Foster sets forth below how this Court could vindicate these rights in practical terms.
First, in the TRO context, the Court must weigh the “public interest” in vindicating the constitutional rights at issue, Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir. 1986), and so the court could order immediate release of certain categories of subclass members temporarily, even if concluding that public safety precluded the emergency release of other subclass members.
Second, a federal court has the authority to grant bail to habeas petitioners who are properly before it. See Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985) (holding that, even in post-conviction habeas proceedings that involve those already convicted of state offenses, “federal district judges in habeas corpus and Section 2255 proceedings have inherent power to admit applicants to bail pending the decision.”); Bolante v. Keisler, 506 F.3d 618, 620 (7th Cir. 2007) (“Inherent judicial authority to grant bail to persons who have asked for relief in an application for habeas corpus is a natural incident of habeas corpus, the vehicle by which a person questions the government’s right to detain him.”); Swanson v. United States, 2016 WL 5422048, at *1 (C.D. Ill. Sept. 28, 2016) (granting bail pending Section 2255 proceedings).
As least in post-conviction proceedings where principles of comity and finality are at their zenith, to be released on bail pending habeas review the petitioner must demonstrate a high probability of success on the merits and “extraordinary or exceptional circumstances … which make the grant of bail necessary to make the habeas remedy effective.” Swanson, 2016 WL 5422048, at *1; see also Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); cf. Johnston v. Marsh, 227 F.2d 528, 529-32 (3d Cir. 1955)
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(finding that a district court had the power to grant of bail pending habeas consideration where the petitioner, “an advanced diabetic, was, under conditions of confinement, rapidly progressing toward total blindness,” comparing this authority to a judge’s power to issue a “stay of execution” while a petition is pending). Under this “exceptional circumstances” evaluation, courts also consider a person’s characteristics. See, e.g., Swanson, 2016 WL 5422048, at *1 (finding that petitioner was a “good candidate for bond”).
Based on these considerations, a federal court for the District of Massachusetts has released (and continues to release) numerous civil immigration detainees on non-monetary bond conditions while their class action habeas petition is pending. See Savino v. Souza, 2020 WL 1703844, at *89 (Apr. 8, 2020) (explaining its decision to grant bail pending habeas). In that case, named petitioners and class members include all immigration detainees held at two facilities in Massachusetts. Id. at *1. The Savino petitioners seek habeas relief because those facilities are too cramped and unsanitary to protect them from contracting COVID-19. Id. at *1-3.17 Finding “extraordinary circumstances” in “this nightmarish pandemic,” the court opted to “diligently entertain[] bail applications while the petitions for habeas corpus are pending.” Id. at *9. The district court requested and rapidly considered an initial list of 50 detainees for bail, and has since considered class members’ bail applications in groups of 10. Order, Savino v. Souza, No. 2010617-WGY, Doc. No. 44, at 3 (Apr. 4, 2020); see id., Doc. No. 45 at 1-3 (listing class members in groups of 10 for bail consideration); id., Doc. No.77 at 1-3 (Apr. 10, 2020) (same) (attached as Group Ex. F). On April 15, 2020, the Court denied the government’s request to stay the releases. In its Order, the Court explained: “We are in the midst of a pandemic unprecedented in our lifetime. . . . [T]he Court will continue, on an individual basis, to work through the difficult issues of bail

17

Unlike in this case, the Savino class is not limited to detainees who are medically vulnerable.

Savino, No. 20-10617-WGY, 2020 WL 1703844, at *1.

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in the present crisis. . . . Moreover, compelling issues of individual, institutional, and community health preclude the luxury of a stay so counsel can ‘consider their appellate options.’” Doc. No. 86 at 1-3 (Apr. 15, 2020).
Other courts have also found that the risks imposed by COVID-19 warranted release on bail while a habeas action was pending. See Avendano Hernandez v. Decker, 2020 WL 1547459, at *3 (S.D.N.Y. Mar. 31, 2020) (releasing § 2241 habeas petitioner challenging unconstitutional conditions of confinement—“specifically, continued risk of exposure to COVID-19”—because his continued detention would expose him to the infection he seeks habeas relief to avoid and, thus, “immediately release [wa]s necessary to ‘make the habeas remedy effective’” (quoting Mapp, 241 F.3d at 230)); Jiminez v. Wolf, No. 18-10225-MLW, Doc. No. 507-1 at 3-4 (D. Mass. Mar. 26, 2020) (concluding that release of habeas petitioner on bail was “necessary to … make the habeas remedy effective” because “we’re living in the midst of a coronavirus pandemic,” “being in a jail enhances risk,” and “[i]f the petitioner is infected and dies …. [t]he habeas remedy will be ineffective”).
Here too, this court could exercise equitable flexibility. For example, the court could release on bail every medically vulnerable pretrial detainee charged with an offense that does not have as an element the use or threatened use of violence or unwanted sexual touching of another person. Similarly, the court could release every pretrial detainee who would be eligible for release if they paid $10,000 or less. Both of these filters would aid the Sheriff in achieving the social distancing required (and may avert the need for the three-judge tribunal to act), and both are very reasonable proxies for public safety under these extraordinary circumstances. The Sheriff does not even attempt to justify why Foster is so dangerous that he must be detained when any person could walk to a Cook County window, hand over $5,000, and Foster would be released immediately.
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The court could also order that any and all non-financial conditions of release already ordered by a state court in any person’s case remain the same. This approach would help ensure that any intrusion on state court proceedings is minimal and targeted only at terminating pretrial detention of presumptively innocent people in dangerous conditions. Indeed, this court could even convert the secured bail amount to an unsecured bond amount, meaning that the same financial condition of release remains in each person’s case, but merely removing the obligation to pay prior to release. See ODonnell v. Harris Cty., Texas, 251 F. Supp. 3d 1052, 1144 (S.D. Tex. 2017), aff'd as modified sub nom. ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018) (“[T]he record evidence shows that secured money bail is not more effective at increasing the likelihood of appearance or law-abiding behavior before trial than release on an unsecured or nonfinancial condition.”).
These proxies and solutions are neither perfect nor common in federal court habeas cases, but these are extraordinary times and petitioners lives are at stake. IV. THE COURT MAY ORDER THE TRANSFER OF SOME DETAINEES TO A
SAFE LOCATION WITHIN THE SHERIFF’S CUSTODY. It would also be proper for this court, on the present record and without need for a further hearing, to enter an order directing the Sheriff to transfer detainees who have been exposed to the coronavirus (the subclass B Plaintiffs) to “a safe facility or form of custody of [the sheriff’s] choosing.” Doc. No. 55 at 15.
That transfer could be to any safe location in which the detainee may remain confined within the Sheriff’s custody, including, for instance, to another correctional space, a hospital or medical facility, a clinic, home confinement, administrative furlough, or electronic home monitoring. Such an order would not require the release of any detainee and therefore would not involve the three judge panel procedure of Section 3626(a)(3)(A).
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The Sheriff states that transfer outside the Jail would be “widely impractical if not impossible.” Doc. No. 61 at 9. To the contrary, the Sheriff is empowered under the County Jail Act to transfer detainees—including to home confinement—in a health emergency. See Doc. No. 26-1 (Pls.’ Resp. to Court’s Apr. 3 Order) at 19; Doc. No. 42 (Pls.’ Suppl. Br. in Support of TRO) at 17-19 (discussing County Jail Act, 730 ILCS 125/14, and how electronic monitoring constitutes confinement in accordance with the statutory mandate).
Using this authority, the Sheriff has previously opened clinical facilities in the County, in order to house detainees who the Sheriff believed were better suited to detention outside the physical Jail plant. For example, in 2015, the Sheriff began operating a mental health clinic in the south suburbs of Cook County. The clinic, run in collaboration with Adler Community Health Services, served as a transfer site for mentally ill detainees in the jail (without court order). The Sheriff has also historically run a program of administrative furlough, by which detainees remain in the Sheriff’s custody but outside the walls of the Jail. See People v. Campa, 353 Ill.App.3d 178, 179-80 (1st Dist. 2004) (detainee was “in custody” of Sheriff for purposes of Illinois’ speedy trial statute, where detainee was placed by the Sheriff on “the Cook County Department of Corrections administrative furlough, and the Department of Community Supervision and Intervention, Day Reporting Program”); People v. Smith, 2014 IL App (3d) 130548, ¶ 27 (noting that detainee who was admitted into Sheriff’s day reporting program was subject to lesser protection than detainee released on bond on home monitoring; as Sheriff had no need to obtain a warrant prior to defendant's re-arrest, there was no way to challenge selection of defendants for entry into Sheriff’s program, and defendant “must simply adhere to the sheriff's unilaterally imposed conditions of participation.”). Electronic monitoring, furlough, and the use of outside facilities to house
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detainees are all available transfers that the Sheriff could employ. They are neither impractical nor impossible.
Plaintiffs’ transfer request also meets the requirements of the PLRA. First, and contrary to Defendant’s claims, Doc. No. 61 at 9, there is a clear fit between the violations at stake (the exposure of incarcerated individuals to conditions of confinement that threaten their health and safety), and the requested remedy (an order requiring the Sheriff transfer prisoners from the physical facility where those conditions exist). See Doc. No. 26-1 at 24-25.
Second, there is no evidence that transfer would have an adverse impact on public safety. The Sheriff claims that ordering more detainees on electronic monitoring “would have the risk of overloading the Sheriff’s electronic monitoring system,” which would thereby endanger the public. Doc. No. 61 at 11. But since Plaintiffs have not requested that all or indeed any of the transfers be done via electronic home monitoring, the Sheriff retains leeway to address any operational concerns in the implementation of the requested court order (for instance, by initiating transfers to other facilities or using administrative furlough).
Third, as made clear in prior briefing, based on the statutory construction of the PLRA, the statute’s legislative history, and the practical effect of the requested relief, a transfer in which detainees remain in the Sheriff’s custody is not a prisoner release order under 18 U.S.C. § 3626(a)(3). See Doc. No. 26-1 at 20-23; Doc. No. 55 at 16-17. This is true even where the effect of the order is to reduce the prison population. See Plata v. Brown, 2013 WL 3200587, at *8 (N.D. Cal. June 24, 2013); Doe, No. 91-187 (Doc. No. 26-3) at 10-12; Reaves v. Dep’t of Correction, 404 F. Supp. 3d 520, 523 (D. Mass. 2019); see also Gray v. County of Riverside, Doc. No. 56 at 4-5 (recently recognizing that an order directing a sheriff to transfer detainees to a safer location
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is not a "prisoner release order" and therefore not subject to the requirements of 18 U.S.C. § 3626(a)(3)).
The Sheriff’s cited case of United States v. Cook County, 761 F. Supp. 2d 794 (N.D. Ill. 2000) does not suggest otherwise. There, a three-judge panel ordered the release of detainees from the Jail to address the facility’s “excess population” after finding that overcrowding was the “primary cause of unconstitutional conditions at the Jail.” Id. at 796, 797 (interpreting 18 U.S.C. § 3626(a)(3)(E)(i)). Population cap litigation, stemming from capacity overcrowding (as in Cook County), was what motivated the drafters of the PRLA to circumscribe relief available to prisoners in overpopulated facilities by instituting the three-judge panel requirements. See Doc. No. 26-1 at 20-23. The statute was not designed to limit remedies available to address violations that were not explicitly related to population caps, like those presented here. See id.; see also Plata, 2013 WL 3200587, at *9 (“[A]dopting Defendants’ interpretation of ‘prisoner release order’ would mean that a court could only order that prisoners be transferred from one prison to another if overcrowding were the primary cause of the violation of those prisoners’ rights, and not if any other reason were causing the violation. Defendants have failed to point to anything in the legislative history that indicates an intent to limit the protection of inmates’ constitutional rights in this manner . . . .”).
Fourth and finally, the PLRA does not limit where a prisoner may be transferred while remaining in a warden’s custody. Citing Plata, the Sheriff states that transfer is only permitted under the PLRA to another jail facility. Doc. No. 61 at 10-11. But the statute has no such requirement. The plaintiff in Reaves, for instance, won transfer to a non-correctional hospital on the same grounds as the Plata plaintiffs. Reaves was in keeping with other judicial orders finding that a person constitutes a “prisoner” even outside the four walls of the prison building, where she
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otherwise remains in custodial confinement. See Jackson v. Johnson, 475 F.3d 261, 265-66 (5th Cir. 2007) (holding that a person subjected to confinement in a halfway house counts as a “prisoner” under the PLRA ) (“[A]lthough Jackson has been released from confinement in prison, his release was not to the general public but was rather to a different form of confinement, albeit with certain additional liberties. It is clear that Jackson is being ‘detained in any facility’ since he is locked up in the halfway house 16 to 24 hours a day and since he may leave the halfway house only for very limited purposes.” (citing Witzke v. Femal, 376 F.3d 744, 752 (7th Cir. 2004) (determining that halfway-house resident who could leave the facility only during the day and was locked inside at night was confined for PLRA purposes)).
Plaintiffs seek a remedy for subclass B that allows the continued confinement of class members, but outside the physical plant of the Jail, which is so hazardous to their health and wellbeing. V. EVEN AS NECESSARY DETAINEE RELEASES ARE IN PROCESS, THE
COURT SHOULD CONVERT THE APRIL 9 ORDER TO A PRELIMINARY INJUNCTION (OR EXTEND THE TRO), AND CONTINUE TO ENFORCE IT. Release from the Jail of the medically vulnerable and to permit social distancing is the essential remedy to cure the violations here, as Plaintiffs have explained above. But the requirements of the court’s April 9 Order must remain in force to protect the health and well-being of all those who will necessarily remain incarcerated in the Jail. The Order has made a difference in how the Jail operates, as evidenced by the Sheriff’s compliance report, particularly as to intake procedures, Doc. No. 51 at 2-7, and by the declarations on behalf of detainees from April 14 onward. It was only after the entry of the Order that detainees began receiving free soap, some cleaning supplies and facemasks in most tiers. Ex. D (Detainee Decl.).
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There is also evidence that the Sheriff is not in full compliance with the Order. First, there is a reason to doubt that all symptomatic detainees are being tested for COVID-19, as the court’s order required. Given the high positive rate and the Sheriff’s own published numbers, the answer is almost certainly no. Ex. C (Rasmussen-Torvik Decl.) ¶ 4 (“Per the Cook County Sheriff's website on April 18, it appears that cumulatively 445 detainees have been tested for COVID-19 and 350 have tested positive—a positive test result rate of over 78%. . . . Michael Ryan, executive director of the WHO Health Emergencies Program, stated that “If 80-90% of the people test positive, you are probably missing a lot of cases[.]”). And no one who is living in quarantine is being tested, by the Sheriff’s own admission. Doc. No. 51 at 12. Detainee declarations further demonstrate the Jail’s failure to provide testing even to symptomatic detainees. Ex. D. In this regard, it is notable that since March 22, the Sheriff has tested a total of 445 detainees,18 for an average of 17.8 detainees per day. By contrast, since at least April 7, the Sheriff appears to have been testing 100 Sheriff’s employees per day, on a first-come, first-served basis.19
Second, while many detainees speak of receiving soap, many simultaneously profess a lack of cleaning supplies for individual cells, the use of watered down bleach for the common areas, and a lack of compliance and monitoring as to whether areas are in fact being cleaned. Ex. D.
Third, other components of the Sheriff’s COVID response are troubling; for example, detainees report that Division 4, where many have been moved, appears not to have been lived in for years, is filthy, there are limited cleaning supplies, and it has no heat. Indeed, although water

18

See https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ (last visited Apr. 19, 2020) (171

positive tests, 176 detainees in “recovery,” 3 deaths, and 95 negative tests).

19

See April 6, 2020 Email from “CCSO Administration” to “Cook County Sheriff's Employees”

(“The Sheriff is pleased to announce that . . . the CCDOC is now able to serve as a testing site. . . . . is

available to all CCSO staff. . . . The first 100 people will be tested. Additionally, testing of 100 staff will

continue each day until everyone that wants to be tested has had the opportunity.”). Doc. No. 31.-3, Curry

Group Ex. 1, at 150.

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coolers have been provided to detainees, they are located in dayrooms, where detainees are only

allowed a few hours every day.

Given these circumstances, the court should convert the April 9 Order to a preliminary

injunction (or if there are factual disputes, extend the TRO for good cause before a hearing) and

grant Plaintiffs the right to continue to monitor the Sheriff’s compliance, with the Court’s

oversight, while litigation of the release and transfer issues.

To this end, Plaintiffs maintain their request for leave to issue expedited discovery, see

Doc. No. 55-1, but with further refinements. The Sheriff’s response brief has changed the state of

play in some key respects. Since the Sheriff is not contesting that social distancing is impossible

in the Jail, Plaintiffs no longer seek updates of the exhibits to the Michael Miller declaration, or a

deposition from Michael Miller.

To address ongoing compliance with the April 9 Order, Plaintiffs seek the following:

•

An inspection by a corrections expert to assess the condition of the tiers to which

detainees are being moved (and which were previously closed because of poor

conditions), the actual regimen of cleaning, and the provision of supplies;

•

CCTV video from various tiers, which Plaintiffs understand is digitally available,

to provide real time evidence of what is happening on the ground as to cleaning and

tier conditions;

•

A deposition of Dr. Menella, for the limited purpose of ascertaining how many total

tests have been administered to detainees since the outbreak of the pandemic, the

parameters that render a detainee “symptomatic” such that he is eligible for testing

by Cermak, how convalescence is defined by Cermak and the Sheriff, and how

many detainees are hospitalized in the Jail, as opposed to at Stroger, and the general

condition of the detainees who are in each medical facility, see Ex. C (Rasmussen-

Torvik Decl.) ¶ 8.

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CONCLUSION For the foregoing reasons and for the reasons stated in Plaintiffs’ renewed motion for preliminary injunction, this court should enter such orders as are necessary to effectuate the relief requested in Plaintiff’s renewed preliminary injunction motion and in this reply brief.

Respectfully submitted,
/s/ Sarah Grady Sarah Grady Attorney for Plaintiffs

Sarah Grady Stephen H. Weil LOEVY & LOEVY 311 North Aberdeen St., 3rd Fl. Chicago, IL 60607 Tel: 312-243-5900 weil@loevy.com sarah@loevy.com
Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue, Chicago, IL 60611 Tel: 312-503-0884 l-bowman@law.northwestern.edu a-vanbrunt@law.northwestern.edu

Charles Gerstein Alec Karakatsanis Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 charlie@civilrightscorps.org alec@civilrightscorps.org Tel: 202-894-6128
Steve Grimes Thomas F. McAndrew Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 Tel: 852-2292-2138 SGrimes@winston.com TMcAndrew@winston.com

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Case: 1:20-cv-02134 Document #: 64 Filed: 04/19/20 Page 37 of 37 PageID #:1781 CERTIFICATE OF SERVICE
I, Sarah C. Grady, an attorney, hereby certify that on April 19, 2020 before 12 p.m., I caused a copy of the foregoing to be filed using the Court’s CM/ECF system and served upon all counsel who have filed appearances in the above-captioned matter.
/s/ Sarah Grady Sarah Grady Attorney for Plaintiffs
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Case: 1:20-cv-02134 Document #: 64-1 Filed: 04/19/20 Page 1 of 1 PageID #:1782

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS J. DART, Sheriff of Cook

)

County,

)

)

Defendant-Respondent.

)

Case No. 1:20-cv-2134
The Hon. Matthew F. Kennelly Emergency Judge
The Hon. Robert Gettleman Presiding Judge

Exhibit A B C
D
E
F

Description Declaration of Dr. Homer Venters Declaration of Dr. Amir Moheb Mohareb Declaration of Dr. Laura Rasmussin-Torvik Declarations of Cook County Jail Detainees Bryant Blake, Kevin Watson, Charles Bocock, Javier Montanez, Jeffrey Ferguson, Dominick Wing, Lamonte Powell, Dante McGee, Eric Blake, Deon Baker, Michael Jorgensen, Isaac Correcillias-Correa, and Joshua Barbee Basank, et al. v. Decker, et al., No. 20 C 2518, Dkt. 11 (S.D.N.Y. Mar. 26, 2020); and Flores, et al. v. Barr, et al., No. 85 C 4544, Dkt. 740 (C.D. Cal. Mar. 28, 2020) Savino, et al. v. Souza, No. 20 C 10617, Dkt. 44-45 (D. Mass. Apr. 4, 2020); Dkt. 77 (D. Mass. Apr. 10, 2020); and Dkt. 86 (D. Mass. Apr. 15, 2020)

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EXHIBIT A

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 2 of 32 PageID #:1784
DECLARATION OF DR. HOMER VENTERS I, Dr. Homer Venters, hereby declare the following under penalty of perjury pursuant to 28 U.S.C. § 1746:
1. I am a physician, internist and epidemiologist with over a decade of experience in providing, improving and leading health services for incarcerated people. My clinical training includes residency training in internal medicine at the Albert Einstein/Montefiore Medical Center (2007) and a fellowship in public health research at the New York University School of Medicine (2009). My experience in correctional health includes two years visiting detention centers and conducting analyses of physical and mental health policies and procedures for persons detained in federal facilities. This work included and resulted in collaboration with federal detention administrators on numerous individual cases of medical release, formulation of health-related policies, and testimony before U.S. Congress regarding mortality inside detention facilities.
2. After my fellowship training, I became the Deputy Medical Director of the New York City Jail Correctional Health Service. This position included both direct care to persons held in NYC’s 12 jails, as well as oversight of medical policies for their care. This role included oversight of chronic care, sick call, specialty referral and emergency care.
3. I subsequently was promoted to the positions of Medical Director, Assistant Commissioner, and Chief Medical Officer of NYC Jail Correctional Health Services. We operated one of the largest correctional health care systems in the nation, with over 43,000 annual admissions in jails across the city. In the latter two roles, I was responsible for all aspects of health services including physical and mental health, addiction, quality improvement, re-entry, morbidity and mortality reviews, as well as all training and oversight of physicians, nursing and

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 3 of 32 PageID #:1785
pharmacy staff. In these roles, I was also responsible for evaluating and making recommendations on the health implications of numerous security policies and practices.
4. During this time, I managed multiple communicable disease outbreaks in our facilities, including H1N1 in 2009, which impacted almost one third of housing areas inside the adolescent jail, multiple seasonal influenza outbreaks, a recurrent legionella infection and several other smaller outbreaks. To manage all of these outbreaks, I worked closely with management at the facilities, including security and health staff, developed policies and procedures to manage the outbreaks, and oversaw training and implementation of those policies and procedures. Central aspects of my roles in these outbreak responses included the identification and protection of high-risk patient cohorts, development of infection control plans that integrated all levels of staff and detained people in mitigating the impact of the outbreak. I also led inspections of housing areas with teams of health, security, engineering and hygiene experts and developed and conducted orientations and trainings for correctional staff, health professionals and detained people. I also developed data dashboards that were updated on a daily basis and shared with local and state public health partners to integrate jail outbreak management with community efforts.
5. In March 2017, I left Correctional Health Services of NYC to become the Director of Programs for Physicians for Human Rights. In this role, I oversaw all programs of Physicians for Human Rights, including training of physicians, judges and law enforcement staff on forensic evaluation and documentation, analysis of mass graves and mass atrocities, documentation of torture and sexual violence, and analysis of attacks against healthcare workers.
6. In December 2018, I became the Senior Health and Justice Fellow for Community Oriented Correctional Health Services (COCHS), a nonprofit organization that promotes evidence-based improvements to correctional practices across the U.S. In January 2020, I
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Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 4 of 32 PageID #:1786
became the president of COCHS. I also work as a medical expert in cases involving correctional health and I wrote a book on the health risks of jail (Life and Death in Rikers Island) which was published in early 2019 by Johns Hopkins University Press. A copy of my curriculum vitae is attached to this report, which includes my publications, a list of cases in which I have been involved and a statement of my compensation.
7. Since January 2020, I have been engaged in numerous activities in response to COVID-19 infection in detention settings. I have published two articles on COVID-19 behind bars1 and participated in over 70 interviews on the need for systematic and evidence-based practices in jails, prisons and other detention settings to both prevent deaths among incarcerated people, and flatten the overall outbreak curve in in the community from COVID-19.2 I am also scheduled to conduct a court-ordered inspection of the Metropolitan Detention Center in Brooklyn NY, which is in the throws of a COVID-19 outbreak and provide my findings to the court. I was invited by the National Association of Counties and Fair and Just Prosecution, a national convening of elected prosecutors, The Stanford Law School and the University of Southern California School of Medicine to provide guidance on COVID-19 response in detention settings, and I have provided similar guidance on multiple other webinars and presentations.
1 Dr. Homer Venters, “4 ways to protect our jails and prisons from coronavirus,” The Hill (Feb. 29, 2020), https://thehill.com/opinion/criminal-justice/485236-4-ways-to-protect-our-jails-and-prisons-fromcoronavirus; Dr. Homer Venters, “Coronavirus behind bars: 4 priorities to save the lives of prisoners,” The Hill (Mar. 23, 2020), https://thehill.com/opinion/criminal-justice/488802-coronavirus-behind-bars-4priorities-to-save-the-lives-of-prisoners. 2 For example: Jean Casella& Katie Rose Quandt, “US jails will become death traps in the coronavirus pandemic,” The Guardian (Mar. 30, 2020), https://www.theguardian.com/commentisfree/2020/mar/30/jails-coronavirus-us-rikers-island; Erin Doherty & Kelly Cannon, “‘We need help’: Inmates describe prison system unprepared for coronavirus,” ABC News (Apr. 5, 2020), https://abcnews.go.com/Politics/inmates-describe-prison-system-unpreparedcoronavirus/story?id=69980790.
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8. I have been retained by counsel for the plaintiffs in this case to provide opinions
about the actions that should be taken at the Cook County Jail in light of the current COVID-19
outbreak. As part of my work in this case, I have been provided the following documents:
• Amended Sanitation Policy • Referral for Medical Care Policy • Outbreak Prevention Policy • CCSO Operational Briefing 4/4/20 • Sanitation Plans • Intake Photos • Declarations of Concetta Menella (2), Rebecca Levin, Henriette Gratteau,
Michael Miller, Ronald Lankah, Patricia Horne, Elizabeth Scannell, Sonjourner Colbert, Matthew Burke, Jane Gubser, Brad Curry (2), and Peter Orris • Plaintiff’s Complaint and Exhibits • Sheriff’s 4/6/20 Response to the Plaintiff’s Emergency Motion and Exhibits • Sheriff’s 4/13/20 Status Report and Exhibits • Plaintiff’s Motion for Preliminary Injunction and Exhibits • 4/15/20 Hearing Transcript
All of the opinions set forth in this declaration are offered to a reasonable degree to medical
certainty based on my training, experience, and review of the relevant literature, and national and
international data and guidance. 9. Coronavirus disease of 2019 (COVID-19) is a viral pandemic.3 This is a novel
virus for which there is no established curative medical treatment and no vaccine. COVID-19 is
different than all previous infectious disease outbreaks faced in our lifetime because of the speed
and extent of spread throughout the globe, and how quickly it has overwhelmed healthcare
systems. Infection control and social distancing represent the most evidence-based and critical
interventions being utilized to slow the spread of COVID-19. Unlike many other viral outbreaks,
it now appears that significant transmission of COVID-19 occurs before infected people become
3 In the name COVID-19, 'CO' stands for 'corona,' 'VI' for 'virus,' and 'D' for disease.
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Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 6 of 32 PageID #:1788
symptomatic, which underscores the need for heavy focus on social distancing as a means to
prevent transmission.
10. The Centers for Disease Control and Prevention (CDC) has identified many
particularly vulnerable populations who are at increased risk of having severe outcomes from
COVID-19.4 These include:
• People with chronic lung disease or moderate to severe asthma • People who have serious heart conditions • People who are immunocompromised5 • People with severe obesity (body mass index [BMI] of 40 or higher) • People with diabetes • People with chronic kidney disease undergoing dialysis • People with liver disease • People who are smokers • People who are pregnant or post-partum
11. In addition, data shows that African-Americans are experiencing disproportionate
rates of death from COVID-19.6
12. For vulnerable individuals, social distancing and infection control play an even
more central role in protecting against severe negative outcomes, there is no treatment or cure
that has been identified to lessen their greater risk of harm after contracting the virus.7
13. Fatality is clearly the worst outcome of COVID-19 infection, but many who
contract the illness and “recover” are irreparably damaged. This cannot be understated. The
4 “At Risk for Severe Illness,” CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html. 5 Including but not limited to cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, HIV/AIDS, and prolonged use of corticosteroids and other immune-weakening medications. 6 Reis Thebault, Andrew Ba Tran, & Vanessa Williams, “The coronavirus is infecting and killing black Americans at an alarmingly high rate,” The Washington Post (Apr. 7, 2020), https://www.washingtonpost.com/nation/2020/04/07/coronavirus-is-infecting-killing-black-americans-analarmingly-high-rate-post-analysis-shows/?arc404=true. 7 “What You Can Do,” CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/whatyou-can-do.html (“Stay home and avoid close contact”); “How to Protect Yourself and Others,” CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (“The best way to prevent illness is to avoid being exposed to this virus.”).
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respiratory damage associated with severe COVID-19 infection causes long term decreases in
lung function, and it is likely that among the 10-20% of people who require hospitalization, most
will experience long-term effects on their lungs, heart, kidneys, eyes, central nervous system and other major organs.8
14. COVID-19 infection rates have grown exponentially in the U.S. The CDC now reports COVID-19 cases and deaths in all 50 states.9 When COVID-19 impacts a community, it
will also impact the community’s detention facilities. Federal and local correctional facilities will
not be able to stop the entry of COVID-19 into their facilities: the reality is that the infection is
inside many facilities already. It is inevitable and is not preventable. Numerous county jails, like
Cook County Jail, have already reported hundreds of COVID-19 infections among staff and
inmates. On March 31, 2020, the medical leadership in the NYC jail system announced that they
would be unable to stop COVID from entering their facility and called for release as the primary response to this crisis.10 Since that time, over 800 staff and inmates have tested positive in the
NYC jail system.
15. Once a virus enters a facility, detention settings promote the spread of the virus to
the wider community. The constant flow of staff in and out of detention facilities only increases
the spread of the virus beyond the walls of the facility itself.
8 Melissa Healy, “Coronavirus infection may cause lasting damage throughout the body, doctors fear,” L.A. Times (Apr. 10, 2020), https://www.latimes.com/science/story/2020-04-10/coronavirus-infectioncan-do-lasting-damage-to-the-heart-liver; Judith Graham, “What Does Recovery From COVID-19 Look Like? It Depends. A Pulmonologist Explains.” Kaiser Health News (Apr. 9, 2020), https://khn.org/news/what-does-recovery-from-covid-19-look-like-it-depends-a-pulmonologist-explains/; Alexander Freund, “COVID-19: Recovered patients have partially reduced lung function,” DW (Mar. 20, 2020), https://www.dw.com/en/covid-19-recovered-patients-have-partially-reduced-lung-function/a52859671. 9 Coronavirus Disease 2019 (COVID-19) Cases in US, CDC (last visited April 10, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 10 Meagan Flynn, “Top doctor at Rikers’ Island calls the hail a public health disaster unfolding before our eyes,” The Washington Post (Mar. 31, 2020), https://www.washingtonpost.com/nation/2020/ 03/31/rikers-island-coronavirus-spread/.
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16. Prisoners in general have poorer health and more underlying medical conditions than those in the community.11 Over half of prisoners have serious physical or behavioral health problems, and incarcerated people have statistically higher rates of smoking, cardiovascular disease, infectious diseases and cancer. Additionally, the leading cause of death in U.S. jails is suicide, which reflects a toxic overlap between untreated mental health and substance use problems.12
17. The CDC and other organizations have issued recommendations on how to prevent or decrease the spread of COVID-19. It is important for jails to comply with the CDC guidance on management of COVID-19 in detention facilities. But it is also important to understand that compliance with these recommendations alone is not enough to create a setting that sufficiently protects the health and safety of individuals detained and working at the jail. The CDC, a federal agency, could not impose mandatory requirements on state or local officials, even when evidence-based medicine would support such requirements. The CDC guidelines are more appropriately considered a “harm reduction” approach, which is a common practice in public health, where organizations offer recommendations on how to reduce a risk of harm even when the subject is not following the appropriate practices.
18. The unanimous consensus from the CDC, and medical and public health experts, is that social distancing and infection control are imperative to decrease rampant spread of COVID-19 and protect people’s health. The fact that the CDC adds the phrase “if possible” or “if
11 Laura M. Maruschak & Marcus Berzofsky, “Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12,” BJS (Feb. 5, 2015), https://www.bjs.gov/index.cfm?ty=pbdetai l&iid=5219. 12 Laura Maruschak, “Medical Problems of Prisoners, BJS (Apr. 19, 2020), https://www.bjs.gov/content/pub/html/mpp/mpp.cfm; Ann Caron, “Mortality in Local Jails, 2000-2016 – Statistical Tables,” BJS (Feb. 12, 2020), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=6767; National Commission on Correctional Health Care, “Suicide Prevention Resource Guide,” https://www.ncchc.org/filebin/Publications/Suicide_Prevention_Resource_Guide_2.pdf
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space allows” in its guidance specifically directed at detention centers it does not control, does not alter the clear medical consensus on social distancing.13
19. In my opinion, based on my correctional and epidemiological training as well as a review of the literature surrounding COVID-19, mandating that staff and detainees be kept six feet apart from each other at all times, absent life-threatening emergencies such as use of force and fire evacuation, in addition to robust sanitation, testing, and infection control, is essential to preventing a widespread outbreak of this disease in a custodial setting.
20. I have been inside numerous state and federal detention facilities, including the Cook County Jail. In a detention facility, social distancing can be challenging and requires close attention to all aspects of operations among both staff and detained people.14 The typical design and operation of correctional settings, including densely packed areas for housing, health services, food services, recreation, bathroom and shower facilities for detained people, as well as the entry points, locker rooms, meal areas, and control rooms for staff, all contribute to the spread of infectious disease. Detention facilities are typically operated in a way that forces close contact between people and relies on massive amounts of movement every day from one part of the facility to another, e.g., for programming, access to cafeterias, commissary, medical, just to name a few. This movement is required of detained people as well as staff. This normal level of movement requires that correctional settings design and implement detailed plans and policies to both reduce the amount of movement, and immediately change housing operations to permit
13 “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” CDC, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf (“Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.”). 14 State of Illinois, Executive Order 2020-13 (Mar. 26, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-13.pdf.
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detainees to socially distance from one another in order to control the spread of a highly communicable disease, such as COVID-19.
21. The sally-port is one of the most ubiquitous aspects of detention, and is a place that requires special attention. The sally-port, or control port, is a series of two locked gates that bring every staff member and detained person past a windowed control room as they stop in a room between locked gates. The normal functioning of detention centers demands that during shift change for staff, or as the security count approaches for detained people, large numbers of people press into sally-ports as they move into or out of other areas of the facility. This process creates close contact, and the sally port windows that are used to hand out radios, keys and other equipment to staff ensure efficient passage of communicable disease from the control rooms into the sally port areas on a regular basis. But like other aspects of detention settings, passage of staff and detained people through sally-ports can be monitored and regulated in a way that promotes six feet of separation between people. Other areas similarly require special attention, including analysis of existing workflows and honest assessment of the operational and staffing implications, including housing areas, meal spaces, medication administration, sick call, bathroom and day room access, etc.
22. Solitary confinement is not medical isolation.15 Simply locking detained people into cells will worsen, not improve, efforts to curb infection rates. When people are locked into cells alone, for most of the day, they quickly experience psychological distress that manifests in self-harm and suicidality, which requires rapid response and intensive care outside the facility for mental and physical health emergencies. In addition, units that are comprised of locked cells may require additional staff to escort people to and from their cells for showers, telephone calls, and
15 David Cloud, Dallas Augustine & Brie Williams, “The Ethical Use of Medical Isolation,” Amend (Apr. 9, 2020), https://amend.us/wp-content/uploads/2020/04/Medical-Isolation-vs-Solitary_Amend.pdf.
9

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other encounters, and medical, pharmacy and nursing staff must move on and off these units daily to assess the welfare and health needs of these people, creating the same spread of the virus from the community into the facilities as if detained people were not locked down. In addition, locking two people into a cell increases the risk of transmission of COVID-19 from one of them to the other. This risk is especially harmful in facilities, like the Cook County Jail, that have failed to create special protections for people with known risk factors for serious illness and death from COVID-19 infection, and hold these high-risk patients in locked cells with other lower-risk patients.
23. The documents I have reviewed in this case fail to establish a comprehensive approach to social distancing at the Cook County Jail and must be quickly integrated into a single COVID-19 emergency response plan that not only mandates in a detailed fashion, but also supports and monitors implementation of, social distancing. The deficiencies I have noted include:
a. Lack of clarity for how detainees will be maintained with 6 feet of separation in day rooms, hallways, sally-ports, medication lines, bathrooms and showers, medical clinics, transport, and recreation spaces.
b. Lack of detail on how staff will engage in social distancing as they enter the facilities and are screened, pass through sally-ports, hallways, to and from their security posts, clinic assignments, administrative office, and during meals and breaks.
c. Lack of assessment of staffing requirements to implement social distancing among staff and detained people.
24. Mandating social distancing for detainees is critical to protect against uncontrolled spread of COVID-19. However, there are other actions that should be taken. In addition to social distancing, Cook County Jail must engage in adequate infection control. My experience managing smaller outbreaks is that an additional challenge in correctional settings is
10

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 12 of 32 PageID #:1794
to apply hospital-level infection control measures on security staff. Ongoing, effective training is crucial to implement as many measures as possible. In a hospital or nursing home, staff may move up and down a single hallway over their shift, and they may interact with one patient at a time. In detention settings, officers move great distances, are asked to shout or yell commands to large numbers of people, routinely apply handcuffs and operate heavy doors/gates, operate large correctional keys and are trained in the use of force. These basic duties cause the personal protective equipment they are given to quickly break and become useless, and even when in good working order, may impede their ability talk and be understood, as in the case of masks. As a result, implementation of infection control measures requires a significant amount of training and supervision. It cannot be implemented through email or signage alone, but requires active role modeling, supervision and support of staff. One of the most ubiquitous examples of this challenge is the now common observation that many correctional staff who have been issued N95 masks in the past two weeks at the Cook County Jail are currently not wearing them, or may be wearing them around their necks or on their heads.
25. Another critical task for any detention setting responding to a COVID-19 outbreak is to identify all of the people held in their custody who are particularly vulnerable. This task is critical for several reasons, and the daily updating of the list and locations of highrisk patients is critical to basic outbreak management. Creating a real-time list of high-risk patients allows for:
• Identification of high-risk patients who are eligible for release from detention • Implementing of active surveillance, special housing arrangements, and other
protective measures for high-risk patients who are not ill • Implementing enhanced surveillance and protective measures for high-risk
patients who are in a quarantine setting, or who develop symptoms of COVID-19
11

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•

Development and implementation of re-entry plans of care and support with

community partners for high-risk patients

26. Hand-washing and good hygiene practices are also important. Access to hand

washing is limited in detention settings as compared to the community. Many common areas

lack operable sinks with access to soap and paper hand towels. In addition, many of the sinks

utilized in correctional settings do not operate with a faucet that can be turned and left on, but

rather rely on pushing a button which provides a limited amount of water over a limited amount

of time. These metered faucets are designed to save water by limiting the amount of time water

flows, but make adequate hand washing with soap for at least 20 seconds very difficult, if not

impossible.

27. Infection control policies and procedures in detention settings are often at odds

with basic CDC guidance. The CDC guidelines for infection control regarding COVID-19 make

clear the need to aggressively prepare for, and intervene in, the spread of this virus throughout

correctional settings. One of the most serious deficiencies in correctional practices involves the

failure to appropriately train and equip correctional staff and inmate workers in the disinfection

of the physical plant, and enable all people inside the facility to engage on social distancing and

hand washing. When security staff and detainees are given masks without any guidance about

their use, or when they should be replaced, or what scenarios in their environment represent

higher risk of COVID-19 infection, the net effect is to decrease attention to infection control.

Similarly, when inconsistent strengths of cleaning solution, or inadequate access to clean paper

towels or other products used to wipe down surfaces are utilized, the net effect is also to decrease

the level of infection control and increase the risk of rapid COVID-19 spread throughout the

facility. When no special effort is made to use more highly trained or equipped cleaning

12

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personnel with protective equipment to clean and handle the effects of staff or detainees who exhibit signs and symptoms of COVID-19, an especially egregious breach in infection control has occurred. Because security staff and inmates far outnumber health staff in correctional settings, they must be trained, equipped and engaged as the first responders for infection control. Failure to take this approach significantly increases the risk of rapid COVID-19 spread throughout the facility and increases the risk of preventable illness and death. The Cook County Jail’s failure to have implemented adequate infection control policies before COVID-19 appeared within the facility is likely part of the reason why the outbreak quickly became so large. But as described above, even the perfect implementation of an adequate infection control policy would be insufficient to protect against uncontrolled spread of COVID-19 in the absence of social distancing at the jail.
Health Staff
Security Staff
Detainees
13

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 15 of 32 PageID #:1797
28. Security staff represent the front-line infection control force inside correctional settings, and evidence-based infection control plans cannot be implemented without active training of staff that is also ongoing. This training should include formal training on the protective equipment, environmental cleaning and health service activities that security staff will participate in or support. These trainings should span every tour and day of service so that every staff member is trained, and should be conducted in both dedicated 15-30 minute sessions and also in more brief venues, such as roll call.
29. My review of the Cook County Jail’s policies and other materials additionally leads me to have the following other specific concerns and recommendations about the health status of staff and detained people inside Cook County Jail regarding COVID-19 response:
a. Lack of a Covid-19 plan. It appears that CSCSO does not yet have a single COVID-19 response plan, and is instead relying on an amalgam of pre-existing policies, individual protocols and other directives to manage their response to COVID-19. I have reviewed an outbreak management policy from 2017 that covers numerous types of infectious disease concerns, and has a half page amendment relating to COVID-19 testing on the last of 15 pages. I have also reviewed a separate sanitation policy that appears specific to COVID-19 and a 21-page operational briefing from April 4, 2020 that appears to include several pages of general occupational guidance relating to COVID-19 that is not jail-specific and targeted towards “maintaining a healthy business. This lack of a single COVID-19 emergency response plan is a glaring deficiency, and at odds with good correctional practice. Large systems such as CCSO employ and care for several thousands of individuals and it is not possible to respond to a largescale emergency without a single, coordinated plan. This is even more pressing for the COVID19 response, because the public health directives for management change every week, sometimes
14

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 16 of 32 PageID #:1798
daily, and thus, CCSO must have one unified plan that can be updated and reliably utilized by all security, health and administrative staff, and which partners in public health organizations can review and support. If it has not already occurred, CCSO must combine all of the existing protocols and procedures into one COVID-19 emergency response plan, as is mandated in other detention settings.16
b. Lack of identification or tracking of high-risk patients. The correctional health staff, and their electronic medical records, are very sophisticated, and the identity and location of people with CDC identified risk factors for serious illness and death from COVID-19 infection is known to the health service. In an outbreak that targets a subset of the incarcerated population, it is critical to create special protections for these individuals, which may include consideration for release, as well as active surveillance with twice daily symptom and temperature checks during incarceration, and additional support during re-entry. This requires that CCSO create a management plan that identifies these high-risk patients for specialized management and protection, which does not exist according to the statements by General Counsel for the Sheriff.
c. Lack of infection control practices consistent with CDC guidelines. The sanitation and other policies I have reviewed fail to address or ensure basic infection control measures that are critical to the CDC guidelines on COVID-19 response in detention settings. Specifically:
• The sanitation policy fails to identify any special measures taken to clean or disinfect the living spaces and personal effect of people who become symptomatic for COVID-19 and are taken to medical isolation. This is an extremely high-risk scenario that has played out numerous times already in the Cook County Jail, and I fear that lack of attention to this high-risk setting has contributed to the substantial outbreak already present. The CDC gives clear guidance on this matter, including letting confined spaces sit for one day before entering/cleaning, and use of PPE for anyone engaged in cleaning.
16 ICE ERO 4/10/20 mandates that all facilities housing ICE detainees must have such a plan.
15

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• The sanitation policy leaves all communication regarding infection control to the housing area officer, but my experience during outbreaks is that detained people have numerous questions about infection control and sanitation that housing area officers are not trained to respond to. There must be regular engagement between infection control nursing or medical staff, and both staff and detained people in each housing area for implementation of effective infection control during an outbreak.
d. Lack of re-entry planning for detained people leaving Cook County Jail. Part
of an integrated plan for COVID-19 response in detention settings is the need to plan for safe re-
entry for people leaving jail. This critical requirement is outlined in CDC recommendations and
must be developed as a section in a unified COVID-19 emergency plan. The CDC makes clear recommendations on this process:17
• If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case – including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.
• If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.
• Before releasing an incarcerated/detained individual with COVID-19 symptoms to a community-based facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
30. These steps are important to improve conditions at the Cook County Jail that help
to prevent detainees and staff from contracting COVID-19. The failures outlined above have
contributed to the rapid spread of COVID-19 in Cook County Jail, and to the health
consequences suffered by detained people and staff alike. As noted above, however, they alone
17 “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” CDC, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf.
16

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 18 of 32 PageID #:1800 are insufficient to meaningfully reduce the rate of spread if social distancing at the jail is not immediately implemented. I believe that it is possible to make a significant difference in the number and severity of COVID-19 cases that ensue going forward, but significant work is required by the Cook County Sheriff’s Office to enact social distancing and basic infection control measures for people held in detention and staff who work in this setting.
Signature: Homer Venters
Date: 4/19/2020 Location: Port Washington, NY
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Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 19 of 32 PageID #:1801

Dr. Homer D. Venters
10 ½ Jefferson St., Port Washington, NY, 11050 hventers@gmail.com, Phone: 646-734-5994

______________________________________________________ __

HEALTH ADMINISTRATOR

PHYSICIAN

EPIDEMIOLOGIST

Professional Profile
• International leader in provision and improvement of health services to patients with criminal justice involvement.
• Innovator in linking care of the incarcerated to Medicaid, health homes, DSRIPs. • Successful implementer of nations’ first electronic health record, performance
dashboards and health information exchange among pre-trial patients. • Award winning epidemiologist focused on the intersection of health, criminal justice
and human rights in the United States and developing nations. • Human rights leader with experience using forensic science, epidemiology and public
health methods to prevent and document human rights abuses.

Professional Experience
President, Community Oriented Correctional Health Services (COCHS), 1/1/2020present. o Lead COCHS efforts to provide technical assistance, policy guidance and research
regarding correctional health and justice reform. o Oversee operations and programmatic development of COCHS o Serve as primary liaison between COCHS board, funders, staff and partners.
Senior Health and Justice Fellow, Community Oriented Correctional Health Services (COCHS), 12/1/18-12/31/2018 o Lead COCHS efforts to expand Medicaid waivers for funding of care for detained
persons relating to Substance Use and Hepatitis C. o Develop and implement COCHS strategy for promoting non-profit models of
diversion and correctional health care.
Medical/Forensic Expert, 3/2016-present o Provide expert input, review and testimony regarding health care, quality
improvement, electronic health records and data analysis in detention settings.
Director of Programs, Physicians for Human Rights, 3/16-11/18. o Lead medical forensic documentation efforts of mass crimes against Rohingya and
Yazidi people. o Initiate vicarious trauma program. o Expand forensic documentation of mass killings and war crimes. o Develop and support sexual violence capacity development with physicians, nurses
and judges. o Expand documentation of attacks against health staff and facilities in Syria and
Yemen.

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 20 of 32 PageID #:1802
Chief Medical Officer/Assistant Vice President, Correctional Health Services, NYC Health and Hospitals Corporation 8/15-3/17.
o Transitioned entire clinical service (1,400 staff) from a for-profit staffing company model to a new division within NYC H + H.
o Developed new models of mental health and substance abuse care that significantly lowered morbidity and other adverse events.
o Connected patients to local health systems, DSRIP and health homes using approximately $5 million in external funding (grants available on request).
o Reduced overall mortality in the nation’s second largest jail system. o Increased operating budget from $140 million to $160 million. o Implemented nation’s first patient experience, provider engagement and racial
disparities programs for correctional health.
Assistant Commissioner, Correctional Health Services, New York Department of Health and Mental Hygiene, 6/11-8/15.
o Implemented nation’s first electronic medical record and health information exchange for 1,400 staff and 75,000 patients in a jail.
o Developed bilateral agreements and programs with local health homes to identify incarcerated patients and coordinate care.
o Increased operating budget of health service from $115 million to $140 million. o Established surveillance systems for injuries, sexual assault and mental health that
drove new program development and received American Public Health Association Paper of the Year 2014. o Personally care for and reported on over 100 patients injured during violent encounters with jail security staff.
Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 1/10-6/11.
o Directed all aspects of medical care for 75,000 patients annually in 12 jails, including specialty, dental, primary care and emergency response.
o Direct all aspects of response to infectious outbreaks of H1N1, Legionella, Clostridium Difficile.
o Developed new protocols to identify and report on injuries and sexual assault among patients.
Deputy Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 11/08-12/09.
o Developed training program with Montefiore Social internal medicine residency program.
o Directed and delivered health services in 2 jails.
Clinical Attending Physician, Bellevue/NYU Clinic for Survivors of Torture, 10/0712/11.
Clinical Attending Physician, Montefiore Medical Center Bronx NY, Adult Medicine, 1/08-11/09.

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 21 of 32 PageID #:1803
Education and Training
Fellow, Public Health Research, New York University 2007-2009. MS 6/2009 Projects: Health care for detained immigrants, Health Status of African immigrants in NYC. Resident, Social Internal Medicine, Montefiore Medical Center/Albert Einstein
University7/2004- 5/2007. M.D., University of Illinois, Urbana, 12/2003. M.S. Biology, University of Illinois, Urbana, 6/03. B.A. International Relations, Tufts University, Medford, MA, 1989.
Academic Appointments, Licensure
Clinical Associate Professor, New York University College of Global Public Health, 5/18-present.
Clinical Instructor, New York University Langone School of Medicine, 2007-2018.
M.D. New York (2007-present).
Media
TV i24 Crossroads re Suicide in U.S. Jails 8/13/19.
i24 Crossroads re re Life and Death in Rikers Island 6/13/19.
Amanpour & Company, NPR/PBS re Life and Death in Rikers Island 4/15/19.
CNN, Christiane Amanpour re Forensic documentation of mass crimes against Rohingya. 7/11/18.
i24 Crossroads with David Shuster re health crisis among refugees in Syria. 7/6/18.
Canadian Broadcasting Corporation TV with Sylvie Fournier (in French) re crowd control weapons. 5/10/18
i24 Crossroads with David Shuster re Cholera outbreak in Yemen. 2/15/18.
China TV re WHO guidelines on HIV medication access 9/22/17.
Radio/Podcast Morning Edition, NPR re Health Risks of Criminal Justice System. 8/9/19.
Fresh Air with Terry Gross, NPR re Life and Death in Rikers Island, 3/6/19.
Morning Edition, NPR re Life and Death in Rikers Island, 2/22/19.
LeShow with Harry Sherer re forensic documentation of mass crimes in Myanmar, Syria,

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 22 of 32 PageID #:1804
Iraq. 4/17/18.
Print articles and public testimony Oped: Four ways to protect our jails and prisons from coronavirus. The Hill 2/29/20.
Oped: It’s Time to Eliminate the Drunk Tank. The Hill 1/28/20.
Oped: With Kathy Morse. A Visit with my Incarcerated Mother. The Hill 9/24/19.
Oped: With Five Omar Muallim-Ak. The Truth about Suicide Behind Bars is Knowable. The Hill 8/13/19.
Oped: With Katherine McKenzie. Policymakers, provide adequate health care in prisons and detention centers. CNN Opinion, 7/18/19. Oped: Getting serious about preventable deaths and injuries behind bars. The Hill, 7/5/19.
Testimony: Access to Medication Assisted Treatment in Prisons and Jails, New York State Assembly Committee on Alcoholism and Drug Abuse, Assembly Committee on Health, and Assembly Committee on Correction. NY, NY, 11/14/18.
Oped: Attacks in Syria and Yemen are turning disease into a weapon of war, STAT News, 7/7/17.
Testimony: Connecticut Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for prisoners. Hartford CT, 2/3/17.
Testimony: Venters HD, New York Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for juveniles in New York. July 10, 2014. NY NY.
Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY. Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY.
Oped: Venters HD and Keller AS, The Health of Immigrant Detainees. Boston Globe, April 11, 2009.
Testimony: U.S. House of Representatives, House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law: Hearing on Problems with Immigration Detainee Medical Care, June 4, 2008.

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 23 of 32 PageID #:1805
Peer Reviewed Publications
Parmar PK, Leigh J, Venters H, Nelson T. Violence and mortality in the Northern Rakhine State of Myanmar, 2017: results of a quantitative survey of surviving community leaders in Bangladesh. Lancet Planet Health. 2019 Mar;3(3):e144-e153.
Venters H. Notions from Kavanaugh hearings contradict medical facts. Lancet. 10/5/18.
Taylor GP, Castro I, Rebergen C, Rycroft M, Nuwayhid I, Rubenstein L, Tarakji A, Modirzadeh N, Venters H, Jabbour S. Protecting health care in armed conflict: action towards accountability. Lancet. 4/14/18.
Katyal M, Leibowitz R, Venters H. IGRA-Based Screening for Latent Tuberculosis Infection in Persons Newly Incarcerated in New York City Jails. J Correct Health Care. 2018 4/18.
Harocopos A, Allen B, Glowa-Kollisch S, Venters H, Paone D, Macdonald R. The Rikers Island Hot Spotters: Exploring the Needs of the Most Frequently Incarcerated. J Health Care Poor Underserved. 4/28/17.
MacDonald R, Akiyama MJ, Kopolow A, Rosner Z, McGahee W, Joseph R, Jaffer M, Venters H. Feasibility of Treating Hepatitis C in a Transient Jail Population. Open Forum Infect Dis. 7/7/18.
Siegler A, Kaba F, MacDonald R, Venters H. Head Trauma in Jail and Implications for Chronic Traumatic Encephalopathy. J Health Care Poor and Underserved. In Press (May 2017).
Ford E, Kim S, Venters H. Sexual abuse and injury during incarceration reveal the need for reentry trauma screening. Lancet. 4/8/18.
Alex B, Weiss DB, Kaba F, Rosner Z, Lee D, Lim S, Venters H, MacDonald R. Death After Jail Release. J Correct Health Care. 1/17.
Akiyama MJ, Kaba F, Rosner Z, Alper H, Kopolow A, Litwin AH, Venters H, MacDonald R. Correlates of Hepatitis C Virus Infection in the Targeted Testing Program of the New York City Jail System. Public Health Rep. 1/17.
Kalra R, Kollisch SG, MacDonald R, Dickey N, Rosner Z, Venters H. Staff Satisfaction, Ethical Concerns, and Burnout in the New York City Jail Health System. J Correct Health Care. 2016 Oct;22(4):383-392.
Venters H. A Three-Dimensional Action Plan to Raise the Quality of Care of US Correctional Health and Promote Alternatives to Incarceration. Am J Public Health. April 2016.104.
Glowa-Kollisch S, Kaba F, Waters A, Leung YJ, Ford E, Venters H. From Punishment to Treatment: The “Clinical Alternative to Punitive Segregation” (CAPS) Program in New York City Jails. Int J Env Res Public Health. 2016. 13(2),182.
Jaffer M, Ayad J, Tungol JG, MacDonald R, Dickey N, Venters H. Improving Transgender Healthcare in the New York City Correctional System. LGBT Health. 2016 1/8/16.

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 24 of 32 PageID #:1806
Granski M, Keller A, Venters H. Death Rates among Detained Immigrants in the United States. Int J Env Res Public Health. 2015. 11/10/15.
Michelle Martelle, Benjamin Farber, Richard Stazesky, Nathaniel Dickey, Amanda Parsons, Homer Venters. Meaningful Use of an Electronic Health Record in the NYC Jail System. Am J Public Health. 2015. 8/12/15.
Fatos Kaba, Angela Solimo, Jasmine Graves, Sarah Glowa-Kollisch, Allison Vise, Ross MacDonald, Anthony Waters, Zachary Rosner, Nathaniel Dickey, Sonia Angell, Homer Venters. Disparities in Mental Health Referral and Diagnosis in the NYC Jail Mental Health Service. Am J Public Health. 2015. 8/12/15.
Ross MacDonald, Fatos Kaba, Zachary Rosner, Alison Vise, Michelle Skerker, David Weiss, Michelle Brittner, Nathaniel Dickey, Homer Venters. The Rikers Island Hot Spotters. Am J Public Health. 2015. 9/17/15.
Selling Molly Skerker, Nathaniel Dickey, Dana Schonberg, Ross MacDonald, Homer Venters. Improving Antenatal Care for Incarcerated Women: fulfilling the promise of the Sustainable Development Goals. Bulletin of the World Health Organization.2015.
Jasmine Graves, Jessica Steele, Fatos Kaba, Cassandra Ramdath, Zachary Rosner, Ross MacDonald, Nathanial Dickey, Homer Venters. Traumatic Brain Injury and Structural Violence among Adolescent males in the NYC Jail System J Health Care Poor Underserved. 2015;26(2):345-57.
Glowa-Kollisch S, Graves J, Dickey N, MacDonald R, Rosner Z, Waters A, Venters H. DataDriven Human Rights: Using Dual Loyalty Trainings to Promote the Care of Vulnerable Patients in Jail. Health and Human Rights. Online ahead of print, 3/12/15.
Teixeira PA1, Jordan AO, Zaller N, Shah D, Venters H. Health Outcomes for HIV-Infected Persons Released From the New York City Jail System With a Transitional Care-Coordination Plan. 2014. Am J Public Health. 2014 Dec 18.
Selling D, Lee D, Solimo A, Venters H. A Road Not Taken: Substance Abuse Programming in the New York City Jail System. J Correct Health Care. 2014 Nov 17.
Glowa-Kollisch S, Lim S, Summers C, Cohen L, Selling D, Venters H. Beyond the Bridge: Evaluating a Novel Mental Health Program in the New York City Jail System. Am J Public Health. 2014 Sep 11.
Glowa-Kollisch S, Andrade K, Stazesky R, Teixeira P, Kaba F, MacDonald R, Rosner Z, Selling D, Parsons A, Venters H. Data-Driven Human Rights: Using the Electronic Health Record to Promote Human Rights in Jail. Health and Human Rights. 2014. Vol 16 (1): 157-165.
MacDonald R, Rosner Z, Venters H. Case series of exercise-induced rhabdomyolysis in the New York City Jail System. Am J Emerg Med. 2014. Vol 32(5): 446-7.
Bechelli M, Caudy M, Gardner T, Huber A, Mancuso D, Samuels P, Shah T, Venters H. Case Studies from Three States: Breaking Down Silos Between Health Care and Criminal Justice. Health Affairs. 2014. Vol. 3. 33(3):474-81.

Case: 1:20-cv-02134 Document #: 64-2 Filed: 04/19/20 Page 25 of 32 PageID #:1807
Selling D, Solimo A, Lee D, Horne K, Panove E, Venters H. Surveillance of suicidal and nonsuicidal self-injury in the new York city jail system. J Correct Health Care. 2014. Apr:20(2).
Kaba F, Diamond P, Haque A, MacDonald R, Venters H. Traumatic Brain Injury Among Newly Admitted Adolescents in the New York City Jail System. J Adolesc Health. 2014. Vol 54(5): 6157.
Monga P, Keller A, Venters H. Prevention and Punishment: Barriers to accessing health services for undocumented immigrants in the United States. LAWS. 2014. 3(1).
Kaba F, Lewsi A, Glowa-Kollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.
MacDonald R, Parsons A, Venters H. The Triple Aims of Correctional Health: Patient safety, Population Health and Human Rights. Journal of Health Care for the Poor and Underserved. 2013. 24(3).
Parvez FM, Katyal M, Alper H, Leibowitz R, Venters H. Female sex workers incarcerated in New York City jails: prevalence of sexually transmitted infections and associated risk behaviors. Sexually Transmitted Infections. 89:280-284. 2013.
Brittain J, Axelrod G, Venters H. Deaths in New York City Jails: 2001 – 2009. Am J Public Health. 2013 103:4.
Jordan AO, Cohen LR, Harriman G, Teixeira PA, Cruzado-Quinones J, Venters H. Transitional Care Coordination in New York City Jails: Facilitating Linkages to Care for People with HIV Returning Home from Rikers Island. AIDS Behav. Nov. 2012.
Jaffer M, Kimura C, Venters H. Improving medical care for patients with HIV in New York City jails. J Correct Health Care. 2012 Jul;18(3):246-50.
Ludwig A, Parsons, A, Cohen, L, Venters H. Injury Surveillance in the NYC Jail System, Am J Public Health 2012 Jun;102(6).
Venters H, Keller, AS. Psychiatric Services. (2012) Diversion of Mentally Ill Patients from Court-ordered care to Immigration Detention. Epub. 4/2012.
Venters H, Gany, F. Journal of Immigrant and Minority Health (2011) Mental Health Concerns Among African Immigrants. 13(4): 795-7.
Venters H, Foote M, Keller AS. Journal of Immigrant and Minority Health. (2010) Medical Advocacy on Behalf of Detained Immigrants. 13(3): 625-8.
Venters H, McNeely J, Keller AS. Health and Human Rights. (2010) HIV Screening and Care for Immigration Detainees. 11(2) 91-102.
Venters H, Keller AS. Journal of Health Care for the Poor and Underserved. (2009) The Immigration Detention Health Plan: An Acute Care Model for a Chronic Care Population. 20:951-957.

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Venters H, Gany, F. Journal of Immigrant and Minority Health (2009) African Immigrant Health. 4/4/09.
Venters H, Dasch-Goldberg D, Rasmussen A, Keller AS, Human Rights Quarterly (2009) Into the Abyss: Mortality and Morbidity among Detained Immigrant. 31 (2) 474-491.
Venters H, The Lancet (2008) Who is Jack Bauer? 372 (9653).
Venters H, Lainer-Vos J, Razvi A, Crawford J, Shaf’on Venable P, Drucker EM, Am J Public Health (2008) Bringing Health Care Advocacy to a Public Defender’s Office. 98 (11).
Venters H, Razvi AM, Tobia MS, Drucker E. Harm Reduct J. (2006) The case of Scott Ortiz: a clash between criminal justice and public health. Harm Reduct J. 3:21
Cloez-Tayarani I, Petit-Bertron AF, Venters HD, Cavaillon JM (2003) Internat. Immunol. Differential effect of serotonin on cytokine production in lipopolysaccharide-stimulated human peripheral blood mononuclear cells.15,1-8.
Strle K, Zhou JH, Broussard SR, Venters HD, Johnson RW, Freund GG, Dantzer R, Kelley KW, (2002) J. Neuroimmunol. IL-10 promotes survival of microglia without activating Akt. 122, 9-19.
Venters HD, Broussard SR, Zhou JH, Bluthe RM, Freund GG, Johnson RW, Dantzer R, Kelley KW, (2001) J. Neuroimmunol. Tumor necrosis factor(alpha) and insulin-like growth factor-I in the brain: is the whole greater than the sum of its parts? 119, 151-65.
Venters HD, Dantzer R, Kelley KW, (2000) Ann. N. Y. Acad. Sci. Tumor necrosis factor-alpha induces neuronal death by silencing survival signals generated by the type I insulin-like growth factor receptor. 917, 210-20.
Venters HD, Dantzer R, Kelley KW, (2000) Trends. Neurosci. A new concept in neurodegeneration: TNFalpha is a silencer of survival signals. 23, 175-80.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Bonilla LE, Jensen T, Garner HP, Bordayo EZ, Najarian MM, Ala TA, Mason RP, Frey WH 2nd, (1997) Heme from Alzheimer's brain inhibits muscarinic receptor binding via thiyl radical generation. Brain. Res. 764, 93-100.

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Kjome JR, Swenson KA, Johnson MN, Bordayo EZ, Anderson LE, Klevan LC, Fraticelli AI, Aldrich SL, Fawcett JR, Venters HD, Ala TA, Frey WH 2nd (1997) Inhibition of antagonist and agonist binding to the human brain muscarinic receptor by arachidonic acid. J. Mol. Neurosci. 10, 209-217.
Honors and Presentations (past 10 years)
Keynote Address, Academic Correctional Health Conference, April 2020, Chapel Hill, North Carolina.
TedMed Presentation, Correctional Health, Boston MA, March 2020.
Finalist, Prose Award for Literature, Social Sciences category for Life and Death in Rikers Island, February, 2020.
Keynote Address, John Howard Association Annual Benefit, November 2019, Chicago IL.
Keynote Address, Kentucky Data Forum, Foundation for a Healthy Kentucky, November 2019, Cincinnati Ohio.
Oral Presentation, Dual loyalty and other human rights concerns for physicians in jails an prisons. Association of Correctional Physicians, Annual meeting. 10/16, Las Vegas.
Oral Presentation, Clinical Alternatives to Punitive Segregation: Reducing self-harm for incarcerated patients with mental illness. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Analysis of Deaths in ICE Custody over 10 Years . American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Medication Assisted Therapies for Opioid Dependence in the New York City Jail System. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, November 2014, New Orleans, LA.
Training, International Committee of the Red Cross and Red Crescent, Medical Director meeting 10/15, Presentation on Human Rights and dual loyalty in correctional health.
Paper of the Year, American Public Health Association. 2014. (Kaba F, Lewis A, GlowaKollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.)
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Oral Presentation, Human rights at Rikers: Dual loyalty among jail health staff. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Poster Presentation, Mental Health Training for Immigration Judges. American Public Health

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Association Annual Meeting, New Orleans LA, 2014.
Distinguished Service Award; Managerial Excellence. Division of Health Care Access and Improvement, NYC DOHMH. 2013.
Oral Presentation, Solitary confinement in the ICE detention system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Self-harm and solitary confinement in the NYC jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Implementing a human rights practice of medicine inside New York City jails. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Human Rights on Rikers: integrating a human rights-based framework for healthcare into NYC’s jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Improving correctional health care: health information exchange and the affordable care act. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Management of Infectious Disease Outbreaks in a Large Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Diversion of Patients from Court Ordered Mental Health Treatment to Immigration Detention. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Initiation of Antiretroviral Therapy for Newly Diagnosed HIV Patients in the NYC Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Medical Case Management in Jail Mental Health Units. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Injury Surveillance in New York City Jails. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Ensuring Adequate Medical Care for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Denver, CO, 2010.
Oral Presentation, HIV Testing in NYC Correctional Facilities. Venters H and Jaffer M, American Public Health Association, Annual Meeting, Denver, CO, 2010.
Oral Presentation, Medical Concerns for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Growth of Immigration Detention Around the Globe. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Role of Hospital Ethics Boards in the Care of Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA,

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November 2009.
Oral Presentation, Health Law and Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Bro Bono Advocacy Award, Advocacy on behalf of detained immigrants. Legal Aid Society of New York, October 2009.
Oral Presentation, Deaths of immigrants detained by Immigration and Customs Enforcement. Venters H, Rasmussen A, Keller A, American Public Health Association Annual Meeting, San Diego CA, October 2008.
Poster Presentation, Death of a detained immigrant with AIDS after withholding of prophylactic Dapsone. Venters H, Rasmussen A, Keller A, Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Poster Presentation, Tuberculosis screening among immigrants in New York City reveals higher rates of positive tuberculosis tests and less health insurance among African immigrants. Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Daniel Leicht Award for Achievement in Social Medicine, Montefiore Medical Center, Department of Family and Social Medicine, 2007.
Poster Presentation, Case Findings of Recent Arestees. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Toronto Canada, April 2007.
Poster Presentation, Bringing Primary Care to Legal Aid in the Bronx. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Los Angeles CA, April 2006.
Poster Presentation, A Missed Opportunity, Diagnosing Multiple Myeloma in the Elderly Hospital Patient. Venters H, Green E., Society of General Internal Medicine Annual Meeting, New Orleans LA, April 2005.
Grants: Program
San Diego County: Review of jail best practices (COCHS), 1/2020, $90,000.
Ryan White Part A - Prison Release Services (PRS). From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/17 (Renewed since 2007). Annual budget $ 2.7 million.
Ryan White Part A - Early Intervention Services- Priority Population Testing. From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/18 (Renewed since 2013). Annual budget $250,000.
Comprehensive HIV Prevention. From HHS to Correctional Health Services (NYC DOHMH), 1/1/1612/31/16. Annual budget $500,000.
HIV/AIDS Initiative for Minority Men. From HHS Office of Minority Health to Correctional Health Services (NYC DOHMH), 9/30/14-8/31/17. Annual budget $375,000.

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SPNS Workforce Initiative, From HRSA SPNS to Correctional Health Services (NYC DOHMH), 8/1/147/31/18. Annual budget $280,000.
SPNS Culturally Appropriate Interventions. From HRSA SPNS to Correctional Health Services (NYC DOHMH), 9/1/13-8/31/18. Annual budget $290,000.
Residential substance abuse treatment. From New York State Division of Criminal Justice Services to Correctional Health Services (NYC DOHMH), 1/1/11-12/31/17. Annual budget $175,000.
Community Action for Pre-Natal Care (CAPC). From NY State Department of Health AIDS Institute to Correctional Health Services (NYC DOHMH), 1/1/05-12/31/10. Annual budget $290,000.
Point of Service Testing. From MAC/AIDS, Elton John and Robin Hood Foundations to Correctional Health Services (NYC DOHMH), 11/1/09-10/31/12. Annual budget $100,000.
Mental Health Collaboration Grant. From USDOJ to Correctional Health Services (NYC DOHMH), 1/1/11-9/30/13. Annual budget $250,000.
Teaching
Instructor, Health in Prisons Course, Bloomberg School of Public Health, Johns Hopkins University, June 2015, June 2014, April 2019.
Instructor, Albert Einstein College of Medicine/Montefiore Social Medicine Program Yearly lectures on Data-driven human rights, 2007-present.
Other Health & Human Rights Activities
DIGNITY Danish Institute Against Torture, Symposium with Egyptian correctional health staff regarding dual loyalty and data-driven human rights. Cairo Egypt, September 20-23, 2014.
Doctors of the World, Physician evaluating survivors of torture, writing affidavits for asylum hearings, with testimony as needed, 7/05-11/18.
United States Peace Corps, Guinea Worm Educator, Togo West Africa, June 1990- December 1991.
-Primary Project; Draconculiasis Eradication. Activities included assessing levels of infection in 8 rural villages and giving prevention presentations to mothers in Ewe and French -Secondary Project; Malaria Prevention.
Books
Venters H. Life and Death in Rikers Island. Johns Hopkins University Press. 2/19.
Chapters in Books
Venters H. Mythbusting Solitary Confinement in Jail. In Solitary Confinement Effects, Practices, and Pathways toward Reform. Oxford University Press, 2020.

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MacDonald R. and Venters H. Correctional Health and Decarceration. In Decarceration. Ernest Drucker, New Press, 2017.

Membership in Professional Organizations
American Public Health Association

French Ewe

Proficient Conversant

Foreign Language Proficiency

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Prior Testimony and Deposition
Benjamin v. Horn, 75 Civ. 3073 (HB) (S.D.N.Y.) as expert for defendants, 2015 Rodgers v. Martin 2:16-cv-00216 (U.S.D.C. N.D.Tx) as expert for plaintiffs, 10/19/17 Fikes v. Abernathy, 2017 7:16-cv-00843-LSC (U.S.D.C. N.D.AL) as expert for plaintiffs 10/30/17. Fernandez v. City of New York, 17-CV-02431 (GHW)(SN) (S.D.NY) as defendant in role as City Employee 4/10/18. Charleston v. Corizon Health INC, 17-3039 (U.S.D.C. E.D. PA) as expert for plaintiffs 4/20/18. Gambler v. Santa Fe County, 1:17-cv-00617 (WJ/KK) as expert for plaintiffs 7/23/18. Hammonds v. Dekalb County AL, CASE NO.: 4:16-cv-01558-KOB as expert for plaintiffs 11/30/2018. Mathiason v. Rio Arriba County NM, No. D-117-CV-2007-00054, as expert for plaintiff 2/7/19. Hutchinson v. Bates et. al. AL, No. 2:17-CV-00185-WKW- GMB, as expert for plaintiff 3/27/19. Lewis v. East Baton Rouge Parish Prison LA, No. 3:16-CV-352-JWD-RLB, as expert for plaintiff 6/24/19. Belcher v. Lopinto, No No. 2:2018cv07368 - Document 36 (E.D. La. 2019) as expert for plaintiffs 12/5/2019.
Fee Schedule
Case review, reports, testimony $500/hour. Site visits and other travel, $2,500 per day (not including travel costs).

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EXHIBIT B

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DECLARATION OF AMIR MOHEB MOHAREB, M.D.
I, Amir Mohareb, hereby declare the following under penalty of perjury pursuant to 28 U.S.C. § 1746:
I am an Infectious Diseases physician in Massachusetts. I completed my medical degree in Johns Hopkins University School of Medicine, my training in Internal Medicine at Yale-New Haven Hospital, and my Infectious Diseases fellowship in the joint program of Brigham & Women's Hospital and Massachusetts General Hospital. I am boardcertified in both Internal Medicine and Infectious Diseases. I practice in Massachusetts General Hospital and am an Instructor in Harvard Medical School. I am a member of the Biothreats Response Team at Massachusetts General Hospital, a position which has required me to take a leading role in infection control measures during the 2019 Coronavirus Disease (COVID-19) outbreak.
I have been retained by the plaintiffs in this case to provide statements and testimony about COVID-19, its clinical presentation and course, and the medical evidence regarding its transmission. I am not charging the plaintiffs for the time that I spend on this case. A copy of the documents I received as part of my work on this case is appended to the end of my report. My opinions are set forth to a reasonable degree of medical certainty based on my education, training, experience, and familiarity with the authoritative literature on the subjects discussed below.
COVID-19 Background. COVID-19 is the disease caused by a novel respiratory virus, SARS-CoV-2, identified in late 2019 in Wuhan, China.1 The name of the virus is SARSCoV-2, and the name of the disease caused by this virus is COVID-19. This disease primarily manifests as influenza-like illness. A fraction of patients with COVID-19 in all age groups go on to develop severe respiratory disease. A patient with the severe form of COVID-19 is unable to breathe effectively to provide enough oxygen for their body's vital organs ("hypoxia"). Hypoxia causes organ failure and will lead to death if it progresses. Patients with hypoxia from severe COVID-19 uniformly feel an intense and frightening degree of shortness of breath. Medical treatment for hypoxia involves provision of supplemental oxygen, which can be done non-invasively in mild cases and by ventilator in severe cases. In the United States, these patients remain connected to the ventilator for a median of 10 days.2 The mortality rate is highest among those of advanced age and those with other medical conditions. Of those who recover to the point of being liberated from mechanical ventilation, these patients commonly need several more days of hospitalization and then weeks of rehabilitation. Aside from hypoxia, COVID-19 has been observed to cause several other complications in hospitalized patients, including blood clots, strokes, liver damage, kidney damage, irregular heart rhythms, and heart failure. Hospitalized patients with COVID-19 are also
1 Wei-jie Guan et al., “Clinical Characteristics of Coronavirus Disease 2019 in China,” New England Journal of Medicine, February 28, 2020, https://doi.org/10.1056/NEJMoa2002032. 2 Pavan K. Bhatraju et al., “Covid-19 in Critically Ill Patients in the Seattle Region — Case Series,” New England Journal of Medicine, March 30, 2020, https://doi.org/10.1056/NEJMoa2004500.
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at risk of superimposed bacterial infections, such as pneumonia and bloodstream infections.
SARS-CoV-2 is spread easily between humans. There is no effective therapy. There is no effective intervention to prevent disease in a person exposed to someone with COVID-19. There is no effective vaccine or medication that prevents COVID-19. Therefore, the only effective means of addressing the threat of COVID-19 are in behavioral strategies of prevention. Persons who have COVID-19 must be immediately isolated to prevent transmission to others. Persons who are exposed to COVID-19 must be immediately quarantined. Persons who are susceptible to COVID-19 must maintain social distancing from others.
Diagnosis. The most common means of confirming COVID-19 diagnosis is through detection of SARS-CoV-2 by nasopharyngeal testing. In this test, a swab of the nasopharynx of the patient is obtained and a molecular identification of the SARS-CoV2 virus is conducted using a method called polymerase chain reaction (PCR). Concerns have been raised about the sensitivity of the nasopharyngeal SARS-CoV-2 PCR, meaning that a number of patients suspected of having COVID-19 may indeed have the infection despite a negative nasopharyngeal SARS-CoV-2 PCR test.3 The sensitivity of nasopharyngeal testing by all commercial testing platforms declines several days after the onset of symptoms, even though patients may still have clinical illness and may still be able to transmit the virus. Because of this, many clinical settings use two serial negative tests to “rule out” patients for the virus. The Abbott "ID Now" SARS-CoV-2 test is one type of PCR test, which can deliver rapid results, but has a particularly high false negative rate. In patients with a compatible clinical syndrome, I would not rely on a negative PCR test from the Abbott "ID Now" SARS-CoV-2 test. Indeed, in my hospital, patients with typical clinical signs and symptoms of COVID-19 who are at epidemiological risk for the infection (such as from an exposure to a jail) are presumed to have COVID-19 even if they have two negative SARS-CoV-2 nasopharyngeal PCR tests. I did not see any indication in the materials that I reviewed that individuals at Cook County Jail receive two negative tests before COVID-19 is considered ruled out or that individuals with compatible clinical syndromes are presumed to have COVID-19 despite negative PCR testing. This suggests to me that some people in Cook County Jail who initially test negative may in fact have COVID-19.
Transmission. Based on a framework followed by the World Health Organization (WHO) and the Centers for Disease Control and Prevention (CDC), there are three possible ways that a respiratory virus can potentially spread:4
3 J Zhao et al., “Antibody Responses to SARS-CoV-2 in Patients of Novel Coronavirus Disease 2019,” Clinical Infectious Diseases, March 28, 2020, https://doi.org/10.1093/cid/ciaa344; Li Guo et al., “Profiling Early Humoral Response to Diagnose Novel Coronavirus Disease (COVID-19),” Clinical Infectious Diseases, March 21, 2020, https://doi.org/10.1093/cid/ciaa310; Tao Ai et al., “Correlation of Chest CT and RT-PCR Testing in Coronavirus Disease 2019 (COVID-19) in China: A Report of 1014 Cases,” Radiology, February 26, 2020, 200642, https://doi.org/10.1148/radiol.2020200642. 4 Chad J. Roy and Donald K. Milton, “Airborne Transmission of Communicable Infection — The Elusive Pathway,” New England Journal of Medicine 350, no. 17 (April 22, 2004): 1710–12, https://doi.org/10.1056/NEJMp048051.
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1. Fomite transmission: virus particles remain viable on environmental surfaces. When people touch these surfaces and then touch their face, they can contract the virus.
2. Droplet transmission: virus particles in large respiratory droplets (>5micrometres) that are emitted by an infected person can be inhaled by a susceptible person in close contact. These large droplets can travel up to six feet. Healthcare workers protect themselves against droplet transmission by wearing "routine" surgical or procedural masks, gowns, and gloves, and practicing hand hygiene before and after each patient encounter.
3. Airborne, or aerosolized, transmission: virus particles in small respiratory droplets (<5micrometres) that are emitted by an infected person can remain suspended in the air and remain infective over several hours and over long distances. Pathogens that travel via airborne transmission can infect persons even if they are wearing surgical or procedural masks. Healthcare workers protect themselves against airborne transmission by wearing specialized masks (N95 masks or Powered Air-Purifying Respirators) and by isolating infected persons in closed rooms with negative-pressure ventilation. Buildings or facilities with other forms of ventilation may spread aerosolized pathogens between rooms.
It is well-known that SARS-CoV-2 is spread by fomite and droplet transmission. Researchers in the National Institute of Allergy and Infectious Diseases recently sought to determine whether SARS-CoV-2 can remain viable via airborne transmission.5 They aerosolized virus in small droplets (<5micrometres) at quantities that would be typically found from the respiratory tract of infected humans. They then spread the virus across different environmental conditions. They found that SARS-CoV-2 virus remained viable in aerosols (small droplets) for the entire duration of their experiment (3 hours). SARSCoV-2 also remained viable on various surfaces (e.g., plastic and stainless steel) for up to 72 hours. This leads medical experts to conclude that SARS-CoV-2 is predominantly transmitted by fomite and droplet transmission, but airborne transmission is possible when aerosols are generated.
This is consistent with clinical experience with SARS-CoV-1, a closely related virus that was the cause of the 2003 SARS outbreak in China, Hong Kong, and Canada. While the dominant form of transmission was through fomites and droplets, SARS-CoV-1 was also capable of being aerosolized and remained infective over time and space via airborne transmission. This virus was transmitted to several healthcare workers via droplet transmission. During the course of aerosol-generating medical procedures, SARS-CoV-1 was transmitted to healthcare workers via airborne transmission even if they were wearing surgical masks.6 Aerosols can be generated by a number of common
5 Neeltje van Doremalen et al., “Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1,” New England Journal of Medicine 382, no. 16 (April 16, 2020): 1564–67, https://doi.org/10.1056/NEJMc2004973. 6 Damon C. Scales et al., “Illness in Intensive Care Staff after Brief Exposure to Severe Acute Respiratory Syndrome,” Emerging Infectious Diseases 9, no. 10 (October 2003): 1205–10, https://doi.org/10.3201/eid0910.030525; Yee-Chun Chen et al., “SARS in Hospital Emergency Room,” Emerging Infectious Diseases 10, no. 5 (May 2004): 782–88, https://doi.org/10.3201/eid1005.030579.
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events, including vigorous coughing, sneezing, use of certain nasal sprays or nebulizer treatments, and toilet flushing.
In addition to respiratory secretions, SARS-CoV-2 virus has been isolated in secretions of the mouth, nose, eyes, blood, stool, and urine. This suggests that respiratory contact is not the only mode of transmission for this virus. There are several reasons to believe that SARS-CoV-2 can be transmitted via fecal-oral contact.7 First, many viral respiratory infections, including other coronaviruses closely related to SARS-CoV-2, have been shown to also transmit via fecal-oral contact. Second, SARS-CoV-2 has been identified in the stool of many patients with COVID-19.8 Third, many patients with COVID-19 have nausea, vomiting, and diarrhea, suggesting that the virus has a direct pathogenic effect on the gastrointestinal tract. Finally, even among COVID-19 patients who lack gastrointestinal symptoms, live virus has been isolated in the stool. The identification of viable SARS-CoV-2 in stool of infected persons raises concern of airborne transmission via toilet flushing.9
By these mechanisms, SARS-CoV-2 is easily transmitted between humans. There is overwhelming evidence demonstrating that a person can spread SARS-CoV-2 before they develop symptoms or without ever developing symptoms at all.10 This characteristic is one of the major reasons why it spreads so rapidly. At the time of this writing, there have been more than 700,000 laboratory-confirmed cases of COVID-19 in the U.S. with more than 30,000 deaths. Because of widespread restrictions in laboratory testing, I believe there are many more infected persons in the U.S. than have been confirmed. Rapid transmission of the virus has been noted in congregate settings, including nursing homes, cruise ships, conferences, homeless shelters, and correctional facilities. In many of these settings, infection spread despite the diligent implementation of hygienic measures, including physical separation of individuals within the congregate setting and the use of hand hygiene and personal protective equipment.
In his declaration, Mr. Michael Miller states that when individuals are identified as being symptomatic, they are put into isolation at the Cook County Jail. While this intervention is necessary, it is insufficient to prevent spread of the infection because patients transmit SARS-CoV-2 prior to developing symptoms. It further appears from the materials that I reviewed that the jail is housing persons under investigation (PUIs) of
7 Jinyang Gu, Bing Han, and Jian Wang, “COVID-19: Gastrointestinal Manifestations and Potential Fecal–Oral Transmission,” Gastroenterology, March 2020, https://doi.org/10.1053/j.gastro.2020.02.054. 8 Wenling Wang et al., “Detection of SARS-CoV-2 in Different Types of Clinical Specimens,” JAMA, March 11, 2020, https://doi.org/10.1001/jama.2020.3786. 9 Sunny H Wong, Rashid NS Lui, and Joseph JY Sung, “Covid-19 and the Digestive System,” Journal of Gastroenterology and Hepatology, March 25, 2020, https://doi.org/10.1111/jgh.15047. 10 Yan Bai et al., “Presumed Asymptomatic Carrier Transmission of COVID-19,” JAMA 323, no. 14 (April 14, 2020): 1406, https://doi.org/10.1001/jama.2020.2565; Kenji Mizumoto et al., “Estimating the Asymptomatic Proportion of Coronavirus Disease 2019 (COVID-19) Cases on Board the Diamond Princess Cruise Ship, Yokohama, Japan, 2020,” Euro Surveillance: Bulletin Europeen Sur Les Maladies Transmissibles = European Communicable Disease Bulletin 25, no. 10 (2020), https://doi.org/10.2807/1560-7917.ES.2020.25.10.2000180; Hiroshi Nishiura et al., “Estimation of the Asymptomatic Ratio of Novel Coronavirus Infections (COVID-19),” International Journal of Infectious Diseases, March 2020, https://doi.org/10.1016/j.ijid.2020.03.020.
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having COVID-19 in isolation together while their tests are pending. If this occurs, it represents a grave health risk because it is almost certain to mix positive and negative cases together, thereby increasing the risk that PUIs who were negative before being put into isolation will develop COVID-19.
Hand hygiene and the provision of surgical masks are insufficient to prevent the spread of infection in a congregate setting. A clear demonstration of this is evident in the case of the Diamond Princess cruise ship,11 which sailed from Japan in January of this year. In the last week of January, a passenger who disembarked from this ship in Hong Kong tested positive for COVID-19. Within days, the cruise ship was quarantined in Japan and strict precautions of hand hygiene and cabin isolation were implemented for all crew and passengers. Despite these measures, more than 700 people were infected with the virus over the following month. By the end of February, the Diamond Princess cruise ship accounted for nearly half of COVID-19 cases outside of China. Several other cruise ships have since had similar experiences with COVID-19. In terms of viral transmission dynamics, in my opinion, a jail constitutes an equal or greater risk setting to that of a cruise ship.
Social Distancing. The recommendation for all persons living in areas of COVID-19 disease activity is to engage in social distancing, hand hygiene, and proper respiratory precautions. Social distancing involves physical separation of individuals by more than six feet, avoidance of public places, and avoidance of congregate habitation. Social distancing is the primary means by which individuals can be safely protected from the threat of COVID-19, and by which public healthcare facilities will be able to withstand the surge in patient volume related to this outbreak. There is ample evidence supporting the use of social distancing as the primary measure of prevention in the COVID-19 outbreak:
• There is a strong biological rationale to containing a respiratory viral illness when susceptible populations stop gathering around persons who are potentially infected.
• When social distancing measures have been implemented in prior outbreaks of respiratory viruses, they have demonstrated moderate success in containing the spread of infection.
• Mathematical modeling studies project that social distancing measures prevent a rapid, overwhelming epidemic of COVID-19 cases.
• Analyses of state-level policies in Hong Kong and in the United States during the COVID-19 outbreak demonstrate that implementation of social distancing measures coincide with a reduced spread of the infection.12
11 Mallapaty, Smriti. “What the Cruise-Ship Outbreaks Reveal about COVID-19,” Nature News. accessed April 18, 2020, https://www.nature.com/articles/d41586-020-00885-w. 12 Benjamin J Cowling et al., “Impact Assessment of Non-Pharmaceutical Interventions against Coronavirus Disease 2019 and Influenza in Hong Kong: An Observational Study,” The Lancet Public Health, April 2020, https://doi.org/10.1016/S2468-2667(20)30090-6.
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Social distancing has been recommended by the CDC, the WHO, the Infectious Diseases Society of America, and numerous other professional organizations and public health entities in response to this outbreak. Social distancing is the officially stated policy of state and federal governments in response to COVID-19. Without social distancing, medical experience demonstrates that the rate of transmission will be rampant and uncontrolled, and will risk overwhelming the healthcare system.
I reviewed the materials from the Sheriff suggesting that the provision of surgical masks alleviates the need for social distancing. This is inconsistent with the position of the CDC, the WHO, and a number of professional and public health organizations with expertise on COVID-19. As I described above, surgical masks do not prevent fomite, airborne transmission, and fecal-oral transmission of the virus. The high rate of infectivity by asymptomatic or mildly symptomatic persons, in concert with the limitations of clinical assessment and PCR testing in identifying positive cases, makes social distancing a necessary intervention to prevent the spread of infection and downstream complications of COVID-19.
I reviewed materials from the Sheriff indicating that the jail considers 170 detainees who have COVID-19 to be medically recovered from the disease. The term "medically recovered" is ambiguous since it can mean either (1) the alleviation of symptoms and clinical resolution of disease in an individual or (2) the inability for a person with COVID19 to transmit the virus and infect others. The determination of when a COVID-19 patient is unable to transmit the virus and infect others is complex because of the limited data on this issue. In most settings, patients with COVID-19 are considered to be unable to transmit the infection only several days following the resolution of symptoms and with a negative nasopharyngeal SARS-CoV-2 PCR test.
I reviewed materials from the Sheriff stating that individuals who have recovered from COVID-19 have immunity to the virus. While it is hypothesized that most individuals who are infected with COVID-19 develop immunity to the virus, there are many uncertainties to this statement. Durable immunity to COVID-19 after infection has not been proven in large-scale medical studies, though it is inferred from similar coronaviruses. There are several known cases of COVID-19 patients meeting criteria for hospital discharge or discontinuation of quarantine (with stricter criteria than is stipulated in the Sherriff's documentation) who subsequently are found to have a positive nasopharyngeal PCR test.13
Amir M. Mohareb, MD Division of Infectious Diseases Massachusetts General Hospital Gray-Jackson 504 55 Fruit Street, Boston, MA 02114 amohareb@mgh.harvard.edu
13 Lan Lan et al., “Positive RT-PCR Test Results in Patients Recovered From COVID-19,” JAMA, February 27, 2020, https://doi.org/10.1001/jama.2020.2783.
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Case: 1:20-cv-02134 Document #: 64-3 Filed: 04/19/20 Page 8 of 8 PageID #:1822 Materials Provided to Dr. Mohareb
o Concetta Mennella’s 4/6/2020 and 4/13/2020 Declarations o Michael Miller’s 4/6/2020 and 4/17/2020 Declarations o Rebecca Levin’s 4/6/2020 Declaration o Defendant’s 4/13/2020 Post-Ruling Report (Dkt. 51) o Defendant’s 4/17/2020 PI Response (Dkt. 62) o Gregg Gonsalves Declaration (Exhibit G to Plaintiffs’ Renewed PI Motion) o COVID-19 Incarceration Model (Exhibit J to Plaintifs’ Renewed PI Motion) o Sarah Grady Declaration (Exhibit D to Plaintiffs’ Renewed PI Motion) o Dr. Puisis’s Declaration (Exhibit B to Plaintiffs’ Complaint)
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EXHIBIT C

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Declaration of Laura Rasmussen-Torvik, PhD, MPH
1. My name is Laura Rasmussen-Torvik. I am the Chief of Epidemiology in the Department of Preventive Medicine at Northwestern University. I have a PhD in Epidemiology and have held a faculty position at Northwestern for over 10 years. My CV is attached to this declaration.
2. I was asked by Plaintiffs’ counsel in Mays v. Dart to review daily counts of positive COVID-19 detainees in isolation and convalescent detainees in recovery at the Cook County jail to comment on COVID-19 transmission and trends at the Cook County jail. However, I am unable to comment on these topics based on these statistics alone.
3. We cannot truly understand trends only by looking at daily cumulative confirmed case counts—which are typically presented in aggregate and not broken down into those in isolation and recovery (or positive and "no longer positive" as presented on the Cook County Sheriff's office website https://www.cookcountysheriff.org/covid-19-cases-atccdoc/ ). In order to begin to understand trends in COVID-19 in a location, we need to understand how many tests are conducted each day, and how many of these tests are positive each day. The less testing you do on a given day, the fewer positive tests you will have; however, this does not necessarily indicate that there are fewer cases of disease presenting in the population on that day.
4. For the Cook County Jail, it is important to provide this information both for detainees and correctional officers. Per the Cook County Sheriff's website on April 18, it appears that cumulatively 445 detainees have been tested for COVID-19 and 350 have tested positive—a positive test result rate of over 78%. Per the Illinois Department of Health on April 18 in all of Illinois (https://www.dph.illinois.gov/covid19/covid19-statistics), 137,404 COVID-19 tests had been performed with 29,160 results—a positive rate of 21%.
5. At a press conference about COVID-19 on March 30th, Michael Ryan, executive director of the WHO Health Emergencies Program, stated that “If 80-90% of the people test positive, you are probably missing a lot of cases,” and “we would certainly like to see countries testing at the level of ten negative tests to one positive, as a general benchmark of a system that's doing enough testing to pick up all cases.”
6. To understand the trends at the Cook County Jail, it is also necessary to understand how "no longer positive" detainees or “convalescent” detainees are classified. The CDC does not use the terms "no longer positive" or “convalescent”, but instead provides guidance about when people who have tested positive can discontinue isolation based on a) test based or b) symptom based strategy. https://www.cdc.gov/coronavirus/2019ncov/hcp/disposition-in-home-patients.html
7. Because of both widespread issues with access to testing and the lengthy clinical course of COVID-19 (particularly in more severe cases), in addition to daily tests and positive tests, health departments are tracking the number of COVID-19+ patients (as well as

Case: 1:20-cv-02134 Document #: 64-4 Filed: 04/19/20 Page 3 of 34 PageID #:1825
COVID-19 “persons under investigation” or PUI) who are (1) hospitalized but not in the ICU and (2) who are hospitalized in the ICU, in order to understand disease trends.
8. On April 18, the Illinois Department of Health reported 3,148 total COVID + PUI in hospitals but not in the ICU, and 1,192 COVID + PUI patients in the ICU (https://www.dph.illinois.gov/covid19/hospitalization-utilization) across Illinois. To understand COVID-19 trends at the Cook County Jail it would be important to know daily counts of the number of detainees hospitalized (including in the hospital facilities on the premises of the Jail) and the number requiring ICU care.
9. Given recent evidence of spread of COVID-19 from people without any symptoms (https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e1.htm) it is critical that all Illinoisans continue to practice social distancing, remaining 6 feet apart, practicing appropriate hand hygiene, and utilizing cloth masks whenever possible in order to control the spread of this disease.
I declare under penalty of perjury that the foregoing information I have provided is true and correct to the best of my knowledge, information, memory, and belief.

April 19, 2020 Evanston, Illinois

/s/ Laura Rasmussen-Torvik Laura Rasmussen-Torvik

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1/2/20
Laura J. Rasmussen-Torvik, PhD, MPH, FAHA
Business Address: 680 N. Lake Shore Drive, Suite 1400, Chicago, IL, 60611 Business Phone: 312-503-3596 Email: ljrtorvik@northwestern.edu
EDUCATION College
 AB, Dartmouth College, Biogenetics (History minor), 2000
TRAINING  MPH, University of Minnesota School of Public Health, Epidemiology, 2004  PhD, University of Minnesota, Epidemiology (Genetics minor), 2007  Post-Doctoral Fellowship, University of Minnesota, Cardiovascular Disease Epidemiology, 2010
ACADEMIC APPOINTMENTS  Chief, Division of Epidemiology, Department of Preventive Medicine, Northwestern University Feinberg School of Medicine, 2019-present  Associate Professor, Department of Preventive Medicine, Northwestern University Feinberg School of Medicine, 2019-present o Division of Epidemiology (primary appointment) o Division of Health and Biomedical Informatics (secondary appointment) o Division of Public Health Practice (secondary appointment)  Assistant Professor, Department of Preventive Medicine, Northwestern University Feinberg School of Medicine, 2010-2019 o Division of Epidemiology (primary appointment) o Division of Health and Biomedical Informatics (secondary appointment) o Division of Public Health Practice (secondary appointment)  Member, Center for Genetic Medicine, Northwestern University Feinberg School of Medicine, 2010-present  MPH Concentration Director, Northwestern University Feinberg School of Medicine, 2015-2017  Member, Center for Education in the Health Sciences, Northwestern University Feinberg School of Medicine, 2015-present
HONORS AND AWARDS A. Elected Society Memberships  Phi Beta Kappa, Dartmouth College, 2000  FAHA, American Heart Association, 2014
B. International/National/Regional  US Public Health Service Traineeship, 2002-2003
C. University  Center for Diabetes Research Travel Award, University of Minnesota, 2008  Feinberg School of Medicine, Outstanding Teacher, 2017  Program in Public Health, Teaching Excellence Award, 2017 and 2018
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INSTITUTIONAL SERVICE (Committees, Councils, Task Forces) A. University  KL2 Training Grant Executive Committee, Northwestern University, 2015-present
B. School  NUgene Core Committee, Northwestern University Feinberg School of Medicine, 2010-present  Junior Faculty Research Advisory Council, Northwestern University Feinberg School of Medicine 2011-2015  MSEB Evaluation and Examination Committee, Northwestern University Feinberg School of Medicine 2011-2017
(co-chair 2011-2014)  Research Cores Committee, Northwestern University Feinberg School of Medicine 2013-2016  MPH Executive Committee, Northwestern University Feinberg School of Medicine, 2014-present
C. Department  Department Executive Committee, Northwestern University Feinberg School of Medicine Department of
Preventive Medicine, 2019-present
COMMUNITY / PUBLIC SERVICE  Northwestern Medicine Scholars Program at Westinghouse Prep, 2012  Jump Rope for Heart (AHA), Evanston, IL, 2016
PARTICIPATION IN PROFESSIONAL SOCIETIES AND EXTRAMURAL ORGANIZATIONS A. Professional Society Memberships  AHA, Council on Epidemiology and Prevention, 2005-present  AHA, Council in Functional Genomics and Translational Biology, 2010-present  Society for Epidemiologic Research, 2012-present  International Genetic Epidemiology Society, 2016-present
B. Leadership and Service (leadership positions held, committee service, etc.)  Member, Early Career Committee of the AHA Epidemiology and Prevention, 2012-2014  Early Career Representative, AHA Epidemiology and Prevention Council Publications Committee, 2012-2014  Member, Molecular Determinants of Cardiovascular Health Joint Committee of the Functional Genomics and
Translational Biology and Epidemiology and Prevention Councils, 2015-present  Member, AHA Epidemiology and Prevention Council Membership Committee, 2016-present
EDITORIAL AND MANUSCRIPT REVIEW RESPONSIBILITIES  Journal Statistics and Methods Reviewer: JAMA Open  Journal Manuscript Reviewer: Circulation, Annals of Human Genetics, American Journal of Cardiology, Obesity, Arthritis and Rheumatism, Metabolism: Clinical and Experimental, Translational Research, Cancer Epidemiology, Biomarkers, and Prevention, JAMA, American Journal of Epidemiology, Circulation: Cardiovascular Genetics, Diabetes, Cardiology, Hypertension, International Journal of Obesity, PLOS Genetics, PLOS Medicine, PLOS One, BMC Medical Genomics, Diabetes Care  Internal Manuscript Reviewer: ARIC, MESA, CARDIA, and CHS Studies  Abstract Reviewer: American Heart Association, Society for Epidemiologic Research, American Diabetes Association, Association for Clinical and Translational Science
GRANT REVIEW RESPONSIBILITIES  Early Career Reviewer, NIH CASE Study Section, February 2014  Study Section Member, AHA GTOE Pop1 Study Section, 2016  Study Section Member, AHA, Precision Medicine Artificial Intelligence and Machine Learning, 2019
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GRANT AWARDS AND CLINICAL TRIALS
A. Current
 Agency: American Heart Association ID: 19SFRN34850101 Title: Integration of genomics into clinical care for SCD PI: Rasmussen-Torvik Effort: 1.8 Calendar Current Year Direct Cost: $181,890 Project Total Costs: $880,000 Project Period: 07/01/2019 - 06/30/2023
 Agency: National Center for Chronic Disease Prev. and Health Promotion ID: U18DP006120 Title: Effect of ACA Medicaid Expansion on Diabetes: Diagnosis, Treatment, Patient compliance, and Health Outcomes PI: Black Role: Co-I Effort: 1.8 Calendar Current Year Direct Cost: $376,223 Project Total Costs: $2,191,533 Project Period: 09/30/15 – 09/29/20
 Agency: National Center for Advancing Translational Sciences ID: 5UL1TR001422 Title: Northwestern University Clinical and Translational Science Institute (NUCATS) PI: Lloyd-Jones Role: Co-Director RAMP Effort: 0.9 Calendar Current Year Direct Cost: $4,891,236 Project Period: 07/15/19 – 06/30/24
 Agency: National Human Genome Research Institute ID: U01HG008673 Title: Genomic Medicine at Northwestern: Discovery and Implementation PI: Chisholm Role: Co-I Effort: 1.2 Calendar Current Year Direct Cost: $539,021 Project Total Costs: $3,403,555 Project Period: 09/01/15 – 05/31/20
 Agency: National Inst. of Child Health & Human Development ID: U54HD085601 Title: Optimizing Medication Management for Mothers with Depression during Pregnancy (OPTI-MOM) PI: Wisner Role: Co-I and Pilot PI Effort: 2.1 Calendar Current Year Direct Cost: $476,122 Project Total Costs: $3,772,069
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Project Period: 08/01/15 – 06/30/20
 Agency: National Heart Lung and Blood Institute ID: 2R01HL107577 Title: Determinants, Trajectories, and Consequences of Abnormal Cardiac Mechanics PI: Shah Role: Co-I Effort: 0.6 Calendar Current Year Direct Cost: $482,548 Project Total Costs: $2,745,518 Project Period: 07/05/16 – 04/30/20
 Agency: National Institute of Child Health and Development ID: 1R01HD089455-01-A1 Title: Molecular Basis of Altered Drug Metabolism During Pregnancy PI: Wisner Role: Co-I Effort: 0.6 Calendar Current Year Direct Cost: $236,680 Project Total Costs: $1,495,316 Project Period: 08/10/17 – 06/30/22
 Agency: National Institute of Neurological Disorders and Stroke ID: U54NS108874 Title: Channelopathy-Associated Epilepsy Research Center PI: George Role: Co-I Effort: 0.6 Calendar Current Year Direct Cost: $112,247 Project Total Costs: $2,542,337 Project Period: 09/30/18 – 05/31/19
 Agency: National Heart, Lung, and Blood Institute ID: 75N92020D00004 Title: Multi-Ethnic Study of Atherosclerosis (MESA) - Field Center PI: Allen Role: Co-I Effort: 0.35 Calendar Current Year Direct Cost: $441,894 Project Period: 12/19/19 – 12/18/24
 Agency: National Heart, Lung, and Blood Institute ID: 1U01HL146408-01 Title: The American Lung Association (ALA) Cohort PI: Kalhan Role: Co-I Effort: 0.6 Calendar Current Year Direct Cost: $2,633,107 Project Total Costs: $ 24,800,693.00 Project Period: 06/15/2019 – 04/30/2020
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B. Pending
 Agency: National Human Genome Research Institute ID: U01HG011169 Title: Northwestern Genomic Risk Assessment and Management Program MPI: Rasmussen-Torvik Effort: 4.0 Calendar Current Year Direct Cost: $680,000 Project Total Costs: $5,632,301 Project Period: 04/01/2020-03/31/2025
C. Past
 Agency: NMH/Friends of Prentice Foundation ID: Agmt 12/13/17 Title: Elucidating Neonatal Discontinuation Syndrome in Infants Exposed to Antidepressants PI: Rasmussen-Torvik Effort: 0 Calendar Project Total Costs: $50,000 Project Period: 09/01/17-08/31/19 Agency: PCORI via Chicago Community Trust
 Agency: PCORI ID: PCORI-PFA-2015 Title: PCORnet Bariatric Surgery PI: Arterburn Role: Subcontract PI Effort: 0.60 Calendar Current Year Direct Cost: $16,344 Project Total Costs: $47,294 Project Period: 02/01/16-01/31/18
 Agency: National Institute on Minority Health and Health Disparities ID: U54MD010723 Title: African American Cardiovascular pharmacogenetic CONsorTium (ACCOuNT): discovery and translation PI: Perera Role: Co-I Effort: 0.6 Calendar Current Year Direct Cost: $1,178,917 Project Total Costs: $9,525,128 Project Period: 8/19/2016 – 5/31/2021
 Agency: National Center for Advancing Translational Sciences ID: UL1TR000150 Title: NU Multidiciplinary Clinical and Translational Science Scholar Program (KL2) PI: Lloyd-Jones KL2: Scholar Rasmussen-Torvik
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Role: KL2 Scholar Effort: 9.0 Calendar Project Total Costs: $4,195,948 Project Period: 05/01/12-04/30/14
 Agency: National Human Genome Research Institute ID: U01HG006388 Title: eMERGE2-PGx Supplement PI: Chisholm Role: Co-I Effort: 1.2 Calendar Project Total Costs: $590,560 Project Period: 08/01/12 – 07/31/15
 Agency: National Human Genome Research Institute ID: U01HG006388 Title: A Personalized Genomic Medicine Pilot Program Using NUgene eMERGE Experience PI: Chisholm Role: Co-I Effort: 0.6 Calendar Project Total Costs: $3,528,143 Project Period: 08/15/11 – 07/31/15
 Agency: PCORI via Chicago Community Trust ID: CDRN-1306-04737 Title: Chicago Area Patient Centered Outcomes Research Network (CAPriCORN) PI: Mazany Role: Co-I Effort: 0.6 Calendar Project Total Costs: $6,615,576 Project Period: 03/01/14 – 8/31/15
 Agency: National Heart Lung and Blood Institute ID: 1R01HL107577 Title: Study of Cardiac Mechanics in Systemic Hypertension PI: Shah Role: Co-I Effort: 0.6 Calendar Project Total Costs: $1,395,162 Project Period: 05/21/11 – 03/31/16
 Agency: American Heart Association ID: 15CVGPSD27260148 Title: Molecular Determinants of Hypertensive Heart Failure with preserved ejection fraction (HFpEF): Genomics, Transcriptomics, and Proteomics PI: Shah Role: Co-I Effort: 0.6 Calendar Project Total Costs: $159,990 Project Period: 12/01/15 – 11/30/16
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 Agency: National Human Genome Research Institute ID: U01HG004609 Title: Genome-wide Studies from the NUgene Biorespository PI: Chisholm Role: Co-I Effort: 2.4 Calendar Project Total Costs: $4,239,880 Project Period: 9/27/07-7/31/11
 Agency: Northwestern Memorial Foundation ID: 2013 DGTRI Title: The association of targeted exonic variants and post-surgical weight loss PI: Rasmussen-Torvik Effort: 0.12 Calendar Project Total Costs: $25,000 Project Period: 01/01/13 – 12/31/14
 Agency: National Heart Lung and Blood Institute ID: N01-HC-48049 Title: Longitudinal Studies of Coronary Heart Disease Risk Factor in Young Adults (CARDIA) PI: Liu Role: Co-I Effort: 0.6 Calendar Project Period: 12/30/83 – 06/30/13
 Agency: National Heart Lung and Blood Institute ID: N01-HC-95164 Title: Multi-Ethnic Study of Atherosclerosis (MESA): Field Center PI: Liu Role: Co-I Effort: 0.6 Calendar Project Period: 01/15/99 – 08/14/15
INVITED LECTURES A. International/National  CVD Epidemiology and Electronic Health Records, Presented at Tel Aviv University, Tel Aviv, Israel, April 29th, 2014  Moderator, Jeremiah and Rose Stamler Award for Young Investigators. Presented at American Heart Association 2015 Epidemiology and Lifestyle Council Meeting. Baltimore, MD, March 5th 2015  Outcomes in eMERGE PGx, Presented at Genomic Medicine Meeting X (Hosted by NHGRI Office of Population Genomics), Silver Spring, Maryland, May 3rd, 2017  Clinical Translation of NGS, Panel Member: Front Line Genomics Special Interest Group, Boston, MA, 6/12/18  The PCORnet Bariatric Study: Preliminary Results from a Large PCORnet Demonstration Project, presented at NIH/PCORnet Collaboratory Grand Rounds (webinar), August 17th, 2018.  Pharmacoepidemiology and Implementation Science Studies: How Can they Guide my Prescribing Practice? Presented at Obstetric-Fetal Pharmacology: Practical Prescribing and Research Methods Update, Chicago, IL, November 2nd, 2018.  MESA ROR: discussions to date in multi-center study. TOPMed Steering Committee Meeting. Tysons, VA, April 24-25, 2019.
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B. Regional  The eMERGE PGx project: The Northwestern Experience, Presented at the NorthShore Research Bioinformatics
Seminar, Evanston, IL March 4th, 2014  Northwestern EHR/Epidemiology Research, Presented at the Sinai Urban Health Institute Epidemiology Seminar,
Chicago, IL, May 26th, 2016
C. Local  GWAS resources in the Department of Preventive Medicine, Department of Preventive Medicine Cardiovascular
Epidemiology Seminar, July 13th, 2012  Demographic predictors of weight loss after bariatric surgery, Department of Preventive Medicine
Cardiovascular Epidemiology Seminar, June 14th, 2013  eMERGE-PGx: The Northwestern Experience, Department of Preventive Medicine Cardiovascular Epidemiology
Seminar March 13th, 2015  Return of research WGS results to biobank participants: issues and challenges, Department of Preventive
Medicine Cardiovascular Epidemiology Seminar June 23rd, 2017
D. Multi-Center Study  PGx update, eMERGE study steering committee meeting, February 26th, 2013  PGx update, eMERGE study steering committee meeting, June 3rd, 2013  PGx update, eMERGE study steering committee meeting, October 7th, 2013  Clinical and research genotyping in eMERGE, eMERGE III planning meeting, NHGRI, January 22nd, 2014  PGx update, eMERGE study steering committee meeting, January 23rd, 2014  PGx update, eMERGE study steering committee meeting, June 23rd, 2014  Overlap of Diastolic Dysfunction definitions in CARDIA, CARDIA steering committee meeting, Oct 16th, 2014  PGx update, eMERGE study steering committee meeting, Dec 4th, 2014  PGx update, eMERGE study steering committee meeting, March 30th, 2015  PGx update, eMERGE study steering committee meeting, June 29th, 2015  PGx update, eMERGE study steering committee meeting, September 16th, 2015  OPTIMOM Pilot Design, OPRC Network steering committee meeting, October 5th, 2015  PGx update, eMERGE study steering committee meeting, April 4th, 2016  Sample selection for Northwestern ACA project, NEXT-D2 steering committee meeting, June 28th, 2016  PGx update, eMERGE study steering committee meeting, October 6th, 2016  OPTIMOM Pilot Modifications. OPRC Network steering committee meeting, October 20th, 2016  PGx update, eMERGE study steering committee meeting, Feb 1st, 2017  Challenges of Diabetes Definitions for Northwestern ACA project, NEXT-D2 steering committee meeting, Sept
7th, 2017  PGx update, eMERGE study steering committee meeting, Oct 10th, 2017  PGx update, eMERGE study steering committee meeting, Jan 26th, 2018  PGx update, eMERGE study steering committee meeting, Oct 26th, 2018  PGx update, eMERGE study steering committee meeting, Jan 17th, 2019  Expansion of OPTI-MOM Pilot Study, OPRC Network steering committee meeting, March 5th, 2019
PUBLICATIONS AND SCHOLARLY WORK
A. Peer-reviewed Original Investigations
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1. Day JW, Ricker K, Jacobsen JF, Rasmussen LJ, Dick KA, Kress W, Schneider C, Koch MC, Beilman GJ, Harrison AR, Dalton JC, Ranum LP. Myotonic dystrophy type 2: molecular, diagnostic and clinical spectrum. Neurology. 2003;60(4):657-64. Epub 2003/02/26. doi: 10.1212/01.wnl.0000054481.84978.f9. PubMed PMID: 12601109.
2. Rasmussen-Torvik LJ, North KE, Gu CC, Lewis CE, Wilk JB, Chakravarti A, Chang YP, Miller MB, Li N, Devereux RB, Arnett DK. A population association study of angiotensinogen polymorphisms and haplotypes with left ventricular phenotypes. Hypertension. 2005;46(6):1294-9. Epub 2005/11/16. doi: 10.1161/01.HYP.0000192653.17209.84. PubMed PMID: 16286570.
3. Folsom AR, Cushman M, Heckbert SR, Ohira T, Rasmussen-Torvik L, Tsai MY. Factor VII coagulant activity, factor VII -670A/C and -402G/A polymorphisms, and risk of venous thromboembolism. J Thromb Haemost. 2007;5(8):1674-8. Epub 2007/08/01. doi: 10.1111/j.1538-7836.2007.02620.x. PubMed PMID: 17663738.
4. Rasmussen-Torvik LJ, Cushman M, Tsai MY, Zhang Y, Heckbert SR, Rosamond WD, Folsom AR. The association of alpha-fibrinogen Thr312Ala polymorphism and venous thromboembolism in the LITE study. Thromb Res. 2007;121(1):17. Epub 2007/04/17. doi: 10.1016/j.thromres.2007.02.008. PubMed PMID: 17433418; PMCID: PMC2679171.
5. Rasmussen-Torvik LJ, McAlpine DD. Genetic screening for SSRI drug response among those with major depression: great promise and unseen perils. Depress Anxiety. 2007;24(5):350-7. Epub 2006/11/11. doi: 10.1002/da.20251. PubMed PMID: 17096399.
6. Rasmussen-Torvik LJ, Pankow JS, Jacobs DR, Steffen LM, Moran AM, Steinberger J, Sinaiko AR. Heritability and genetic correlations of insulin sensitivity measured by the euglycaemic clamp. Diabet Med. 2007;24(11):1286-9. Epub 2007/10/25. doi: 10.1111/j.1464-5491.2007.02271.x. PubMed PMID: 17956454.
7. Rasmussen-Torvik LJ, Pankow JS, Jacobs DR, Jr., Sinaiko AR. Preliminary report: No association between TCF7L2 rs7903146 and euglycemic-clamp-derived insulin sensitivity in a mixed-age cohort. Metabolism. 2009;58(10):1369-71. Epub 2009/07/04. doi: 10.1016/j.metabol.2009.04.023. PubMed PMID: 19573884; PMCID: PMC2748141.
8. Rasmussen-Torvik LJ, Pankow JS, Jacobs DR, Jr., Steinberger J, Moran A, Sinaiko AR. The association of SNPs in ADIPOQ, ADIPOR1, and ADIPOR2 with insulin sensitivity in a cohort of adolescents and their parents. Hum Genet. 2009;125(1):21-8. Epub 2008/11/28. doi: 10.1007/s00439-008-0595-4. PubMed PMID: 19037660; PMCID: PMC2881545.
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15. Rasmussen-Torvik LJ, Li M, Kao WH, Couper D, Boerwinkle E, Bielinski SJ, Folsom AR, Pankow JS. Association of a fasting glucose genetic risk score with subclinical atherosclerosis: The Atherosclerosis Risk in Communities (ARIC) study. Diabetes. 2011;60(1):331-5. Epub 2010/11/03. doi: 10.2337/db10-0839. PubMed PMID: 21036910; PMCID: PMC3012190.
16. Wassel CL, Pankow JS, Rasmussen-Torvik LJ, Li N, Taylor KD, Guo X, Goodarzi MO, Palmas WR, Post WS. Associations of SNPs in ADIPOQ and subclinical cardiovascular disease in the multi-ethnic study of atherosclerosis (MESA). Obesity (Silver Spring). 2011;19(4):840-7. Epub 2010/10/12. doi: 10.1038/oby.2010.229. PubMed PMID: 20930713; PMCID: PMC3510267.
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22. Rasmussen-Torvik LJ, Guo X, Bowden DW, Bertoni AG, Sale MM, Yao J, Bluemke DA, Goodarzi MO, Chen YI, Vaidya D, Raffel LJ, Papanicolaou GJ, Meigs JB, Pankow JS. Fasting glucose GWAS candidate region analysis across ethnic groups in the Multiethnic Study of Atherosclerosis (MESA). Genet Epidemiol. 2012;36(4):384-91. Epub 2012/04/18. doi: 10.1002/gepi.21632. PubMed PMID: 22508271; PMCID: PMC3507617.
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26. Vassy JL, Durant NH, Kabagambe EK, Carnethon MR, Rasmussen-Torvik LJ, Fornage M, Lewis CE, Siscovick DS, Meigs JB. A genotype risk score predicts type 2 diabetes from young adulthood: the CARDIA study. Diabetologia. 2012;55(10):2604-12. Epub 2012/07/12. doi: 10.1007/s00125-012-2637-7. PubMed PMID: 22782289; PMCID: PMC3434294.
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29. Raynor LA, Pankow JS, Rasmussen-Torvik LJ, Tang W, Prizment A, Couper DJ. Pleiotropy and pathway analyses of genetic variants associated with both type 2 diabetes and prostate cancer. Int J Mol Epidemiol Genet. 2013;4(1):49-60. Epub 2013/04/09. PubMed PMID: 23565322; PMCID: PMC3612454.
30. Vardeny O, Gupta DK, Claggett B, Burke S, Shah A, Loehr L, Rasmussen-Torvik L, Selvin E, Chang PP, Aguilar D, Solomon SD. Insulin resistance and incident heart failure the ARIC study (Atherosclerosis Risk in Communities). JACC Heart Fail. 2013;1(6):531-6. Epub 2014/01/24. doi: 10.1016/j.jchf.2013.07.006. PubMed PMID: 24455475; PMCID: PMC3893700.
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34. Selvaraj S, Aguilar FG, Martinez EE, Beussink L, Kim KY, Peng J, Rasmussen-Torvik L, Sha J, Irvin MR, Gu CC, Lewis CE, Hunt SC, Arnett DK, Shah SJ. Association of comorbidity burden with abnormal cardiac mechanics: findings from the HyperGEN study. J Am Heart Assoc. 2014;3(3):e000631. Epub 2014/05/02. doi: 10.1161/JAHA.113.000631. PubMed PMID: 24780206; PMCID: PMC4309045.
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36. Baldridge AS, Pacheco JA, Aufox SA, Kim KY, Silverstein JC, Denham W, Hungness E, Smith ME, Allen NB, Greenland P, Rasmussen-Torvik LJ. Factors Associated With Long-Term Weight Loss Following Bariatric Surgery Using 2 Methods for Repeated Measures Analysis. Am J Epidemiol. 2015;182(3):235-43. Epub 2015/06/21. doi: 10.1093/aje/kwv039. PubMed PMID: 26093003; PMCID: PMC4517695.
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39. De R, Verma SS, Drenos F, Holzinger ER, Holmes MV, Hall MA, Crosslin DR, Carrell DS, Hakonarson H, Jarvik G, Larson E, Pacheco JA, Rasmussen-Torvik LJ, Moore CB, Asselbergs FW, Moore JH, Ritchie MD, Keating BJ, GilbertDiamond D. Identifying gene-gene interactions that are highly associated with Body Mass Index using Quantitative Multifactor Dimensionality Reduction (QMDR). BioData Min. 2015;8:41. Epub 2015/12/18. doi: 10.1186/s13040-0150074-0. PubMed PMID: 26674805; PMCID: PMC4678717.
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44. Avram MJ, Stika CS, Rasmussen-Torvik LJ, Ciolino JD, Pinheiro E, George AL, Jr., Wisner KL. Rationale and design for an investigation to optimize selective serotonin reuptake inhibitor treatment for pregnant women with depression. Clin Pharmacol Ther. 2016;100(1):31-3. Epub 2016/04/03. doi: 10.1002/cpt.375. PubMed PMID: 27037844.
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49. Kershaw KN, Liu K, Goff DC, Jr., Lloyd-Jones DM, Rasmussen-Torvik LJ, Reis JP, Schreiner PJ, Garside DB, Sidney S. Description and initial evaluation of incorporating electronic follow-up of study participants in a longstanding multisite cohort study. BMC Med Res Methodol. 2016;16(1):125. Epub 2016/09/25. doi: 10.1186/s12874-016-0226-z. PubMed PMID: 27664124; PMCID: PMC5035484.
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52. Karavites LC, Kane AK, Zaveri S, Xu Y, Helenowski I, Hansen N, Bethke KP, Rasmussen-Torvik LJ, Khan SA. Tamoxifen Acceptance and Adherence among Patients with Ductal Carcinoma In Situ (DCIS) Treated in a Multidisciplinary Setting. Cancer Prev Res (Phila). 2017;10(7):389-97. Epub 2017/06/01. doi: 10.1158/1940-6207.CAPR17-0029. PubMed PMID: 28559459.
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J, Collaborative PCBS. The National Patient-Centered Clinical Research Network (PCORnet) Bariatric Study Cohort: Rationale, Methods, and Baseline Characteristics. JMIR Res Protoc. 2017;6(12):e222. Epub 2017/12/07. doi: 10.2196/resprot.8323. PubMed PMID: 29208590; PMCID: PMC5736875.
59. Yang A, Ciolino JD, Pinheiro E, Rasmussen-Torvik LJ, Sit DKY, Wisner KL. Neonatal Discontinuation Syndrome in Serotonergic Antidepressant-Exposed Neonates. J Clin Psychiatry. 2017;78(5):605-11. Epub 2017/06/02. doi: 10.4088/JCP.16m11044. PubMed PMID: 28570796.
60. Hylind R, Smith M, Rasmussen-Torvik L, Aufox S. Great expectations: patient perspectives and anticipated utility of non-diagnostic genomic-sequencing results. J Community Genet. 2018;9(1):19-26. Epub 2017/06/29. doi: 10.1007/s12687-017-0314-8. PubMed PMID: 28656483; PMCID: PMC5752650.
61. Keaton JM, Gao C, Guan M, Hellwege JN, Palmer ND, Pankow JS, Fornage M, Wilson JG, Correa A, RasmussenTorvik LJ, Rotter JI, Chen YI, Taylor KD, Rich SS, Wagenknecht LE, Freedman BI, Ng MCY, Bowden DW. Genome-wide interaction with the insulin secretion locus MTNR1B reveals CMIP as a novel type 2 diabetes susceptibility gene in African Americans. Genet Epidemiol. 2018;42(6):559-70. Epub 2018/04/25. doi: 10.1002/gepi.22126. PubMed PMID: 29691896; PMCID: PMC6160319.
62. Lane-Cordova AD, Tedla YG, Carnethon MR, Montag SE, Dude AM, Rasmussen-Torvik LJ. Pre-pregnancy blood pressure and body mass index trajectories and incident hypertensive disorders of pregnancy. Pregnancy Hypertens. 2018;13:138-40. Epub 2018/09/05. doi: 10.1016/j.preghy.2018.06.003. PubMed PMID: 30177041.
63. Liotta EM, Romanova AL, Lizza BD, Rasmussen-Torvik LJ, Kim M, Francis B, Sangha RS, Carroll TJ, Ganger D, Ladner DP, Naidech AM, Paparello JJ, Prabhakaran S, Sorond FA, Maas MB. Osmotic Shifts, Cerebral Edema, and Neurologic Deterioration in Severe Hepatic Encephalopathy. Crit Care Med. 2018;46(2):280-9. Epub 2018/01/18. doi: 10.1097/CCM.0000000000002831. PubMed PMID: 29341965; PMCID: PMC5774236.
64. Loomis SJ, Li M, Maruthur NM, Baldridge AS, North KE, Mei H, Morrison A, Carson AP, Pankow JS, Boerwinkle E, Scharpf R, Rasmussen-Torvik LJ, Coresh J, Duggal P, Kottgen A, Selvin E. Genome-Wide Association Study of Serum Fructosamine and Glycated Albumin in Adults Without Diagnosed Diabetes: Results From the Atherosclerosis Risk in Communities Study. Diabetes. 2018;67(8):1684-96. Epub 2018/05/31. doi: 10.2337/db17-1362. PubMed PMID: 29844224; PMCID: PMC6054442.
65. Reges O, Greenland P, Dicker D, Leibowitz M, Hoshen M, Gofer I, Rasmussen-Torvik LJ, Balicer RD. Association of Bariatric Surgery Using Laparoscopic Banding, Roux-en-Y Gastric Bypass, or Laparoscopic Sleeve Gastrectomy vs Usual Care Obesity Management With All-Cause Mortality. JAMA. 2018;319(3):279-90. Epub 2018/01/18. doi: 10.1001/jama.2017.20513. PubMed PMID: 29340677; PMCID: PMC5833565.
66. Volpi S, Bult CJ, Chisholm RL, Deverka PA, Ginsburg GS, Jacob HJ, Kasapi M, McLeod HL, Roden DM, Williams MS, Green ED, Rodriguez LL, Aronson S, Cavallari LH, Denny JC, Dressler LG, Johnson JA, Klein TE, Leeder JS, Piquette-Miller M, Perera M, Rasmussen-Torvik LJ, Rehm HL, Ritchie MD, Skaar TC, Wagle N, Weinshilboum R, Weitzel KW, Wildin R, Wilson J, Manolio TA, Relling MV. Research Directions in the Clinical Implementation of Pharmacogenomics: An Overview of US Programs and Projects. Clin Pharmacol Ther. 2018;103(5):778-86. Epub 2018/02/21. doi: 10.1002/cpt.1048. PubMed PMID: 29460415; PMCID: PMC5902434.
67. Wei WQ, Li X, Feng Q, Kubo M, Kullo IJ, Peissig PL, Karlson EW, Jarvik GP, Lee MTM, Shang N, Larson EA, Edwards T, Shaffer CM, Mosley JD, Maeda S, Horikoshi M, Ritchie M, Williams MS, Larson EB, Crosslin DR, Bland ST, Pacheco JA, Rasmussen-Torvik LJ, Cronkite D, Hripcsak G, Cox NJ, Wilke RA, Stein CM, Rotter JI, Momozawa Y, Roden DM, Krauss RM, Denny JC. LPA Variants Are Associated With Residual Cardiovascular Risk in Patients Receiving Statins. Circulation.
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2018;138(17):1839-49. Epub 2018/04/29. doi: 10.1161/CIRCULATIONAHA.117.031356. PubMed PMID: 29703846; PMCID: PMC6202211.
68. Barata L, Feitosa MF, Bielak LF, Halligan B, Baldridge AS, Guo X, Yerges-Armstrong LM, Smith AV, Yao J, Palmer ND, VanWagner LB, Carr JJ, Chen YI, Allison M, Budoff MJ, Handelman SK, Kardia SLR, Mosley TH, Jr., Ryan K, Harris TB, Launer LJ, Gudnason V, Rotter JI, Fornage M, Rasmussen-Torvik LJ, Borecki IB, O'Connell JR, Peyser PA, Speliotes EK, Province MA. Insulin Resistance Exacerbates Genetic Predisposition to Nonalcoholic Fatty Liver Disease in Individuals Without Diabetes. Hepatol Commun. 2019;3(7):894-907. Epub 2019/07/25. doi: 10.1002/hep4.1353. PubMed PMID: 31334442; PMCID: PMC6601321.
69. Khan SS, Kim KA, Peng J, Aguilar FG, Selvaraj S, Martinez EE, Baldridge AS, Sha J, Irvin MR, Broeckel U, Arnett DK, Rasmussen-Torvik LJ, Shah SJ. Clinical correlates and heritability of cardiac mechanics: The HyperGEN study. Int J Cardiol. 2019;274:208-13. Epub 2018/07/27. doi: 10.1016/j.ijcard.2018.07.057. PubMed PMID: 30045819; PMCID: PMC6242726.
70. Rasmussen LV, Smith ME, Almaraz F, Persell SD, Rasmussen-Torvik LJ, Pacheco JA, Chisholm RL, Christensen C, Herr TM, Wehbe FH, Starren JB. An ancillary genomics system to support the return of pharmacogenomic results. J Am Med Inform Assoc. 2019;26(4):306-10. Epub 2019/02/20. doi: 10.1093/jamia/ocy187. PubMed PMID: 30778576; PMCID: PMC6402311.
71. Rasmussen-Torvik LJ, Reges O, Greenland P, Dicker D, Leibowitz M, Senderey AB, Hoshen M, Balicer RD. AllCause Mortality Following Bariatric Surgery in Smokers and Non-smokers. Obes Surg. 2019;29(12):3854-9. Epub 2019/07/07. doi: 10.1007/s11695-019-04055-4. PubMed PMID: 31278656.
72. Safarova MS, Satterfield BA, Fan X, Austin EE, Ye Z, Bastarache L, Zheng N, Ritchie MD, Borthwick KM, Williams MS, Larson EB, Scrol A, Jarvik GP, Crosslin DR, Leppig K, Rasmussen-Torvik LJ, Pendergrass SA, Sturm AC, Namjou B, Shah AS, Carroll RJ, Chung WK, Wei WQ, Feng Q, Stein CM, Roden DM, Manolio TA, Schaid DJ, Denny JC, Hebbring SJ, de Andrade M, Kullo IJ. A phenome-wide association study to discover pleiotropic effects of PCSK9, APOB, and LDLR. NPJ Genom Med. 2019;4:3. Epub 2019/02/19. doi: 10.1038/s41525-019-0078-7. PubMed PMID: 30774981; PMCID: PMC6370860.
73. Stanaway IB, Hall TO, Rosenthal EA, Palmer M, Naranbhai V, Knevel R, Namjou-Khales B, Carroll RJ, Kiryluk K, Gordon AS, Linder J, Howell KM, Mapes BM, Lin FTJ, Joo YY, Hayes MG, Gharavi AG, Pendergrass SA, Ritchie MD, de Andrade M, Croteau-Chonka DC, Raychaudhuri S, Weiss ST, Lebo M, Amr SS, Carrell D, Larson EB, Chute CG, RasmussenTorvik LJ, Roy-Puckelwartz MJ, Sleiman P, Hakonarson H, Li R, Karlson EW, Peterson JF, Kullo IJ, Chisholm R, Denny JC, Jarvik GP, e MN, Crosslin DR. The eMERGE genotype set of 83,717 subjects imputed to ~40 million variants genome wide and association with the herpes zoster medical record phenotype. Genet Epidemiol. 2019;43(1):63-81. Epub 2018/10/10. doi: 10.1002/gepi.22167. PubMed PMID: 30298529; PMCID: PMC6375696.
74. Unkart JT, Allison MA, Criqui MH, McDermott MM, Wood AC, Folsom AR, Lloyd-Jones D, Rasmussen-Torvik LJ, Allen N, Burke G, Szklo M, Cushman M, McClelland RL, Wassel CL. Life's Simple 7 and Peripheral Artery Disease: The Multi-Ethnic Study of Atherosclerosis. Am J Prev Med. 2019;56(2):262-70. Epub 2018/12/17. doi: 10.1016/j.amepre.2018.09.021. PubMed PMID: 30553692; PMCID: PMC6422346.
75. Zhang X, Veturi Y, Verma S, Bone W, Verma A, Lucas A, Hebbring S, Denny JC, Stanaway IB, Jarvik GP, Crosslin D, Larson EB, Rasmussen-Torvik L, Pendergrass SA, Smoller JW, Hakonarson H, Sleiman P, Weng C, Fasel D, Wei WQ, Kullo I, Schaid D, Chung WK, Ritchie MD. Detecting potential pleiotropy across cardiovascular and neurological diseases using univariate, bivariate, and multivariate methods on 43,870 individuals from the eMERGE network. Pac Symp Biocomput. 2019;24:272-83. Epub 2019/03/14. PubMed PMID: 30864329; PMCID: PMC6457436.
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A2. Peer-Reviewed Original Investigations (Consortium)
Some of my work as a genetic epidemiologist has involved participation in the large GWAS-meta analyses required to assemble sufficient sample size for detection of common genetic variants associated with common diseases. I have explained my role in each of these large consortium with an * after the citation.
1. Billings LK, Hsu YH, Ackerman RJ, Dupuis J, Voight BF, Rasmussen-Torvik LJ, Hercberg S, Lathrop M, Barnes D, Langenberg C, Hui J, Fu M, Bouatia-Naji N, Lecoeur C, An P, Magnusson PK, Surakka I, Ripatti S, Christiansen L, Dalgard C, Folkersen L, Grundberg E, Investigators M, Consortium D, Mu TC, Investigators A, Consortium G, Eriksson P, Kaprio J, Ohm Kyvik K, Pedersen NL, Borecki IB, Province MA, Balkau B, Froguel P, Shuldiner AR, Palmer LJ, Wareham N, Meneton P, Johnson T, Pankow JS, Karasik D, Meigs JB, Kiel DP, Florez JC. Impact of common variation in bone-related genes on type 2 diabetes and related traits. Diabetes. 2012;61(8):2176-86. doi: 10.2337/db11-1515. PubMed PMID: 22698912; PMCID: 3402303. *I performed the GWAS analyses in the ARIC study for this paper.
2. Dastani Z, Hivert MF, Timpson N, Perry JR, Yuan X, Scott RA, Henneman P, Heid IM, Kizer JR, Lyytikainen LP, Fuchsberger C, Tanaka T, Morris AP, Small K, Isaacs A, Beekman M, Coassin S, Lohman K, Qi L, Kanoni S, Pankow JS, Uh HW, Wu Y, Bidulescu A, Rasmussen-Torvik LJ, Greenwood CM, Ladouceur M, Grimsby J, Manning AK, Liu CT, Kooner J, Mooser VE, Vollenweider P, Kapur KA, Chambers J, Wareham NJ, Langenberg C, Frants R, Willems-Vandijk K, Oostra BA, Willems SM, Lamina C, Winkler TW, Psaty BM, Tracy RP, Brody J, Chen I, Viikari J, Kahonen M, Pramstaller PP, Evans DM, St Pourcain B, Sattar N, Wood AR, Bandinelli S, Carlson OD, Egan JM, Bohringer S, van Heemst D, Kedenko L, Kristiansson K, Nuotio ML, Loo BM, Harris T, Garcia M, Kanaya A, Haun M, Klopp N, Wichmann HE, Deloukas P, Katsareli E, Couper DJ, Duncan BB, Kloppenburg M, Adair LS, Borja JB, Consortium D, Consortium M, Investigators G, Mu TC, Wilson JG, Musani S, Guo X, Johnson T, Semple R, Teslovich TM, Allison MA, Redline S, Buxbaum SG, Mohlke KL, Meulenbelt I, Ballantyne CM, Dedoussis GV, Hu FB, Liu Y, Paulweber B, Spector TD, Slagboom PE, Ferrucci L, Jula A, Perola M, Raitakari O, Florez JC, Salomaa V, Eriksson JG, Frayling TM, Hicks AA, Lehtimaki T, Smith GD, Siscovick DS, Kronenberg F, van Duijn C, Loos RJ, Waterworth DM, Meigs JB, Dupuis J, Richards JB, Voight BF, Scott LJ, Steinthorsdottir V, Dina C, Welch RP, Zeggini E, Huth C, Aulchenko YS, Thorleifsson G, McCulloch LJ, Ferreira T, Grallert H, Amin N, Wu G, Willer CJ, Raychaudhuri S, McCarroll SA, Hofmann OM, Segre AV, van Hoek M, Navarro P, Ardlie K, Balkau B, Benediktsson R, Bennett AJ, Blagieva R, Boerwinkle E, Bonnycastle LL, Bostrom KB, Bravenboer B, Bumpstead S, Burtt NP, Charpentier G, Chines PS, Cornelis M, Crawford G, Doney AS, Elliott KS, Elliott AL, Erdos MR, Fox CS, Franklin CS, Ganser M, Gieger C, Grarup N, Green T, Griffin S, Groves CJ, Guiducci C, Hadjadj S, Hassanali N, Herder C, Isomaa B, Jackson AU, Johnson PR, Jorgensen T, Kao WH, Kong A, Kraft P, Kuusisto J, Lauritzen T, Li M, Lieverse A, Lindgren CM, Lyssenko V, Marre M, Meitinger T, Midthjell K, Morken MA, Narisu N, Nilsson P, Owen KR, Payne F, Petersen AK, Platou C, Proenca C, Prokopenko I, Rathmann W, Rayner NW, Robertson NR, Rocheleau G, Roden M, Sampson MJ, Saxena R, Shields BM, Shrader P, Sigurdsson G, Sparso T, Strassburger K, Stringham HM, Sun Q, Swift AJ, Thorand B, Tichet J, Tuomi T, van Dam RM, van Haeften TW, van Herpt T, van Vliet-Ostaptchouk JV, Walters GB, Weedon MN, Wijmenga C, Witteman J, Bergman RN, Cauchi S, Collins FS, Gloyn AL, Gyllensten U, Hansen T, Hide WA, Hitman GA, Hofman A, Hunter DJ, Hveem K, Laakso M, Morris AD, Palmer CN, Rudan I, Sijbrands E, Stein LD, Tuomilehto J, Uitterlinden A, Walker M, Watanabe RM, Abecasis GR, Boehm BO, Campbell H, Daly MJ, Hattersley AT, Pedersen O, Barroso I, Groop L, Sladek R, Thorsteinsdottir U, Wilson JF, Illig T, Froguel P, van Duijn CM, Stefansson K, Altshuler D, Boehnke M, McCarthy MI, Soranzo N, Wheeler E, Glazer NL, Bouatia-Naji N, Magi R, Randall J, Elliott P, Rybin D, Dehghan A, Hottenga JJ, Song K, Goel A, Lajunen T, Doney A, Cavalcanti-Proenca C, Kumari M, Timpson NJ, Zabena C, Ingelsson E, An P, O'Connell J, Luan J, Elliott A, McCarroll SA, Roccasecca RM, Pattou F, Sethupathy P, Ariyurek Y, Barter P, Beilby JP, Ben-Shlomo Y, Bergmann S, Bochud M, Bonnefond A, Borch-Johnsen K, Bottcher Y, Brunner E, Bumpstead SJ, Chen YD, Chines P, Clarke R, Coin LJ, Cooper MN, Crisponi L, Day IN, de Geus EJ, Delplanque J, Fedson AC, Fischer-Rosinsky A, Forouhi NG, Franzosi MG, Galan P, Goodarzi MO, Graessler J, Grundy S, Gwilliam R, Hallmans G, Hammond N, Han X, Hartikainen AL, Hayward C, Heath SC, Hercberg S, Hillman DR, Hingorani AD, Hui J, Hung J, Kaakinen M, Kaprio J, Kesaniemi YA, Kivimaki M, Knight B, Koskinen S, Kovacs P, Kyvik KO, Lathrop GM, Lawlor DA, Le Bacquer O, Lecoeur C, Li Y, Mahley R, Mangino M, Martinez-Larrad MT, McAteer JB, McPherson R,
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Case: 1:20-cv-02134 Document #: 64-4 Filed: 04/19/20 Page 21 of 34 PageID #:1843
Meisinger C, Melzer D, Meyre D, Mitchell BD, Mukherjee S, Naitza S, Neville MJ, Orru M, Pakyz R, Paolisso G, Pattaro C, Pearson D, Peden JF, Pedersen NL, Pfeiffer AF, Pichler I, Polasek O, Posthuma D, Potter SC, Pouta A, Province MA, Rayner NW, Rice K, Ripatti S, Rivadeneira F, Rolandsson O, Sandbaek A, Sandhu M, Sanna S, Sayer AA, Scheet P, Seedorf U, Sharp SJ, Shields B, Sigurethsson G, Sijbrands EJ, Silveira A, Simpson L, Singleton A, Smith NL, Sovio U, Swift A, Syddall H, Syvanen AC, Tonjes A, Uitterlinden AG, van Dijk KW, Varma D, Visvikis-Siest S, Vitart V, Vogelzangs N, Waeber G, Wagner PJ, Walley A, Ward KL, Watkins H, Wild SH, Willemsen G, Witteman JC, Yarnell JW, Zelenika D, Zethelius B, Zhai G, Zhao JH, Zillikens MC, Consortium D, Consortium G, Global BPC, Borecki IB, Meneton P, Magnusson PK, Nathan DM, Williams GH, Silander K, Bornstein SR, Schwarz P, Spranger J, Karpe F, Shuldiner AR, Cooper C, Serrano-Rios M, Lind L, Palmer LJ, Hu FBs, Franks PW, Ebrahim S, Marmot M, Kao WH, Pramstaller PP, Wright AF, Stumvoll M, Hamsten A, Procardis C, Buchanan TA, Valle TT, Rotter JI, Penninx BW, Boomsma DI, Cao A, Scuteri A, Schlessinger D, Uda M, Ruokonen A, Jarvelin MR, Peltonen L, Mooser V, Sladek R, investigators M, Consortium G, Musunuru K, Smith AV, Edmondson AC, Stylianou IM, Koseki M, Pirruccello JP, Chasman DI, Johansen CT, Fouchier SW, Peloso GM, Barbalic M, Ricketts SL, Bis JC, Feitosa MF, Orho-Melander M, Melander O, Li X, Li M, Cho YS, Go MJ, Kim YJ, Lee JY, Park T, Kim K, Sim X, Ong RT, Croteau-Chonka DC, Lange LA, Smith JD, Ziegler A, Zhang W, Zee RY, Whitfield JB, Thompson JR, Surakka I, Spector TD, Smit JH, Sinisalo J, Scott J, Saharinen J, Sabatti C, Rose LM, Roberts R, Rieder M, Parker AN, Pare G, O'Donnell CJ, Nieminen MS, Nickerson DA, Montgomery GW, McArdle W, Masson D, Martin NG, Marroni F, Lucas G, Luben R, Lokki ML, Lettre G, Launer LJ, Lakatta EG, Laaksonen R, Kyvik KO, Konig IR, Khaw KT, Kaplan LM, Johansson A, Janssens AC, Igl W, Hovingh GK, Hengstenberg C, Havulinna AS, Hastie ND, Harris TB, Haritunians T, Hall AS, Groop LC, Gonzalez E, Freimer NB, Erdmann J, Ejebe KG, Doring A, Dominiczak AF, Demissie S, Deloukas P, de Faire U, Crawford G, Chen YD, Caulfield MJ, Boekholdt SM, Assimes TL, Quertermous T, Seielstad M, Wong TY, Tai ES, Feranil AB, Kuzawa CW, Taylor HA, Jr., Gabriel SB, Holm H, Gudnason V, Krauss RM, Ordovas JM, Munroe PB, Kooner JS, Tall AR, Hegele RA, Kastelein JJ, Schadt EE, Strachan DP, Reilly MP, Samani NJ, Schunkert H, Cupples LA, Sandhu MS, Ridker PM, Rader DJ, Kathiresan S. Novel loci for adiponectin levels and their influence on type 2 diabetes and metabolic traits: a multi-ethnic meta-analysis of 45,891 individuals. PLoS Genet. 2012;8(3):e1002607. doi: 10.1371/journal.pgen.1002607. PubMed PMID: 22479202; PMCID: 3315470. *I performed the GWAS analyses in the MESA study for this paper.
3. Liu CT, Ng MC, Rybin D, Adeyemo A, Bielinski SJ, Boerwinkle E, Borecki I, Cade B, Chen YD, Djousse L, Fornage M, Goodarzi MO, Grant SF, Guo X, Harris T, Kabagambe E, Kizer JR, Liu Y, Lunetta KL, Mukamal K, Nettleton JA, Pankow JS, Patel SR, Ramos E, Rasmussen-Torvik L, Rich SS, Rotimi CN, Sarpong D, Shriner D, Sims M, Zmuda JM, Redline S, Kao WH, Siscovick D, Florez JC, Rotter JI, Dupuis J, Wilson JG, Bowden DW, Meigs JB. Transferability and fine-mapping of glucose and insulin quantitative trait loci across populations: CARe, the Candidate Gene Association Resource. Diabetologia. 2012;55(11):2970-84. doi: 10.1007/s00125-012-2656-4. PubMed PMID: 22893027; PMCID: 3804308. *I was the CARDIA representative for this paper.
4. Manning AK, Hivert MF, Scott RA, Grimsby JL, Bouatia-Naji N, Chen H, Rybin D, Liu CT, Bielak LF, Prokopenko I, Amin N, Barnes D, Cadby G, Hottenga JJ, Ingelsson E, Jackson AU, Johnson T, Kanoni S, Ladenvall C, Lagou V, Lahti J, Lecoeur C, Liu Y, Martinez-Larrad MT, Montasser ME, Navarro P, Perry JR, Rasmussen-Torvik LJ, Salo P, Sattar N, Shungin D, Strawbridge RJ, Tanaka T, van Duijn CM, An P, de Andrade M, Andrews JS, Aspelund T, Atalay M, Aulchenko Y, Balkau B, Bandinelli S, Beckmann JS, Beilby JP, Bellis C, Bergman RN, Blangero J, Boban M, Boehnke M, Boerwinkle E, Bonnycastle LL, Boomsma DI, Borecki IB, Bottcher Y, Bouchard C, Brunner E, Budimir D, Campbell H, Carlson O, Chines PS, Clarke R, Collins FS, Corbaton-Anchuelo A, Couper D, de Faire U, Dedoussis GV, Deloukas P, Dimitriou M, Egan JM, Eiriksdottir G, Erdos MR, Eriksson JG, Eury E, Ferrucci L, Ford I, Forouhi NG, Fox CS, Franzosi MG, Franks PW, Frayling TM, Froguel P, Galan P, de Geus E, Gigante B, Glazer NL, Goel A, Groop L, Gudnason V, Hallmans G, Hamsten A, Hansson O, Harris TB, Hayward C, Heath S, Hercberg S, Hicks AA, Hingorani A, Hofman A, Hui J, Hung J, Jarvelin MR, Jhun MA, Johnson PC, Jukema JW, Jula A, Kao WH, Kaprio J, Kardia SL, Keinanen-Kiukaanniemi S, Kivimaki M, Kolcic I, Kovacs P, Kumari M, Kuusisto J, Kyvik KO, Laakso M, Lakka T, Lannfelt L, Lathrop GM, Launer LJ, Leander K, Li G, Lind L, Lindstrom J, Lobbens S, Loos RJ, Luan J, Lyssenko V, Magi R, Magnusson PK, Marmot M, Meneton P, Mohlke KL, Mooser V, Morken MA, Miljkovic I, Narisu N, O'Connell J, Ong KK, Oostra BA, Palmer LJ, Palotie A, Pankow JS, Peden JF, Pedersen NL, Pehlic M, Peltonen L, Penninx B, Pericic M, Perola M, Perusse L, Peyser PA, Polasek O, Pramstaller PP, Province MA, Raikkonen K, Rauramaa R, Rehnberg E, Rice K, Rotter JI, Rudan I, Ruokonen A, Saaristo T, Sabater-Lleal M, Salomaa V, Savage DB, Saxena R, Schwarz P, Seedorf U, Sennblad B, Serrano-Rios M, Shuldiner AR, Sijbrands EJ, Siscovick DS, Smit JH, Small KS,
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Smith NL, Smith AV, Stancakova A, Stirrups K, Stumvoll M, Sun YV, Swift AJ, Tonjes A, Tuomilehto J, Trompet S, Uitterlinden AG, Uusitupa M, Vikstrom M, Vitart V, Vohl MC, Voight BF, Vollenweider P, Waeber G, Waterworth DM, Watkins H, Wheeler E, Widen E, Wild SH, Willems SM, Willemsen G, Wilson JF, Witteman JC, Wright AF, Yaghootkar H, Zelenika D, Zemunik T, Zgaga L, Replication DIG, Meta-analysis C, Multiple Tissue Human Expression Resource C, Wareham NJ, McCarthy MI, Barroso I, Watanabe RM, Florez JC, Dupuis J, Meigs JB, Langenberg C. A genome-wide approach accounting for body mass index identifies genetic variants influencing fasting glycemic traits and insulin resistance. Nat Genet. 2012;44(6):659-69. doi: 10.1038/ng.2274. PubMed PMID: 22581228; PMCID: 3613127. *I performed the GWAS analyses in the ARIC study for this paper and was part of the primary writing group.
5. Scott RA, Chu AY, Grarup N, Manning AK, Hivert MF, Shungin D, Tonjes A, Yesupriya A, Barnes D, Bouatia-Naji N, Glazer NL, Jackson AU, Kutalik Z, Lagou V, Marek D, Rasmussen-Torvik LJ, Stringham HM, Tanaka T, Aadahl M, Arking DE, Bergmann S, Boerwinkle E, Bonnycastle LL, Bornstein SR, Brunner E, Bumpstead SJ, Brage S, Carlson OD, Chen H, Chen YD, Chines PS, Collins FS, Couper DJ, Dennison EM, Dowling NF, Egan JS, Ekelund U, Erdos MR, Forouhi NG, Fox CS, Goodarzi MO, Grassler J, Gustafsson S, Hallmans G, Hansen T, Hingorani A, Holloway JW, Hu FB, Isomaa B, Jameson KA, Johansson I, Jonsson A, Jorgensen T, Kivimaki M, Kovacs P, Kumari M, Kuusisto J, Laakso M, Lecoeur C, Levy-Marchal C, Li G, Loos RJ, Lyssenko V, Marmot M, Marques-Vidal P, Morken MA, Muller G, North KE, Pankow JS, Payne F, Prokopenko I, Psaty BM, Renstrom F, Rice K, Rotter JI, Rybin D, Sandholt CH, Sayer AA, Shrader P, Schwarz PE, Siscovick DS, Stancakova A, Stumvoll M, Teslovich TM, Waeber G, Williams GH, Witte DR, Wood AR, Xie W, Boehnke M, Cooper C, Ferrucci L, Froguel P, Groop L, Kao WH, Vollenweider P, Walker M, Watanabe RM, Pedersen O, Meigs JB, Ingelsson E, Barroso I, Florez JC, Franks PW, Dupuis J, Wareham NJ, Langenberg C. No interactions between previously associated 2-hour glucose gene variants and physical activity or BMI on 2-hour glucose levels. Diabetes. 2012;61(5):1291-6. doi: 10.2337/db11-0973. PubMed PMID: 22415877; PMCID: 3331745. *I performed the GWAS analyses in the ARIC study for this paper.
6. Scott RA, Lagou V, Welch RP, Wheeler E, Montasser ME, Luan J, Magi R, Strawbridge RJ, Rehnberg E, Gustafsson S, Kanoni S, Rasmussen-Torvik LJ, Yengo L, Lecoeur C, Shungin D, Sanna S, Sidore C, Johnson PC, Jukema JW, Johnson T, Mahajan A, Verweij N, Thorleifsson G, Hottenga JJ, Shah S, Smith AV, Sennblad B, Gieger C, Salo P, Perola M, Timpson NJ, Evans DM, Pourcain BS, Wu Y, Andrews JS, Hui J, Bielak LF, Zhao W, Horikoshi M, Navarro P, Isaacs A, O'Connell JR, Stirrups K, Vitart V, Hayward C, Esko T, Mihailov E, Fraser RM, Fall T, Voight BF, Raychaudhuri S, Chen H, Lindgren CM, Morris AP, Rayner NW, Robertson N, Rybin D, Liu CT, Beckmann JS, Willems SM, Chines PS, Jackson AU, Kang HM, Stringham HM, Song K, Tanaka T, Peden JF, Goel A, Hicks AA, An P, Muller-Nurasyid M, Franco-Cereceda A, Folkersen L, Marullo L, Jansen H, Oldehinkel AJ, Bruinenberg M, Pankow JS, North KE, Forouhi NG, Loos RJ, Edkins S, Varga TV, Hallmans G, Oksa H, Antonella M, Nagaraja R, Trompet S, Ford I, Bakker SJ, Kong A, Kumari M, Gigante B, Herder C, Munroe PB, Caulfield M, Antti J, Mangino M, Small K, Miljkovic I, Liu Y, Atalay M, Kiess W, James AL, Rivadeneira F, Uitterlinden AG, Palmer CN, Doney AS, Willemsen G, Smit JH, Campbell S, Polasek O, Bonnycastle LL, Hercberg S, Dimitriou M, Bolton JL, Fowkes GR, Kovacs P, Lindstrom J, Zemunik T, Bandinelli S, Wild SH, Basart HV, Rathmann W, Grallert H, Replication DIG, Meta-analysis C, Maerz W, Kleber ME, Boehm BO, Peters A, Pramstaller PP, Province MA, Borecki IB, Hastie ND, Rudan I, Campbell H, Watkins H, Farrall M, Stumvoll M, Ferrucci L, Waterworth DM, Bergman RN, Collins FS, Tuomilehto J, Watanabe RM, de Geus EJ, Penninx BW, Hofman A, Oostra BA, Psaty BM, Vollenweider P, Wilson JF, Wright AF, Hovingh GK, Metspalu A, Uusitupa M, Magnusson PK, Kyvik KO, Kaprio J, Price JF, Dedoussis GV, Deloukas P, Meneton P, Lind L, Boehnke M, Shuldiner AR, van Duijn CM, Morris AD, Toenjes A, Peyser PA, Beilby JP, Korner A, Kuusisto J, Laakso M, Bornstein SR, Schwarz PE, Lakka TA, Rauramaa R, Adair LS, Smith GD, Spector TD, Illig T, de Faire U, Hamsten A, Gudnason V, Kivimaki M, Hingorani A, Keinanen-Kiukaanniemi SM, Saaristo TE, Boomsma DI, Stefansson K, van der Harst P, Dupuis J, Pedersen NL, Sattar N, Harris TB, Cucca F, Ripatti S, Salomaa V, Mohlke KL, Balkau B, Froguel P, Pouta A, Jarvelin MR, Wareham NJ, Bouatia-Naji N, McCarthy MI, Franks PW, Meigs JB, Teslovich TM, Florez JC, Langenberg C, Ingelsson E, Prokopenko I, Barroso I. Large-scale association analyses identify new loci influencing glycemic traits and provide insight into the underlying biological pathways. Nat Genet. 2012;44(9):991-1005. doi: 10.1038/ng.2385. PubMed PMID: 22885924; PMCID: 3433394. *I performed the GWAS analyses in the ARIC study for this paper and was part of the primary writing group.
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7. Chen Z, Tang H, Qayyum R, Schick UM, Nalls MA, Handsaker R, Li J, Lu Y, Yanek LR, Keating B, Meng Y, van Rooij FJ, Okada Y, Kubo M, Rasmussen-Torvik L, Keller MF, Lange L, Evans M, Bottinger EP, Linderman MD, Ruderfer DM, Hakonarson H, Papanicolaou G, Zonderman AB, Gottesman O, BioBank Japan P, Consortium C, Thomson C, Ziv E, Singleton AB, Loos RJ, Sleiman PM, Ganesh S, McCarroll S, Becker DM, Wilson JG, Lettre G, Reiner AP. Genome-wide association analysis of red blood cell traits in African Americans: the COGENT Network. Hum Mol Genet. 2013;22(12):2529-38. doi: 10.1093/hmg/ddt087. PubMed PMID: 23446634; PMCID: 3658166. I was the CARDIA representative for this paper.
8. Liu CT, Monda KL, Taylor KC, Lange L, Demerath EW, Palmas W, Wojczynski MK, Ellis JC, Vitolins MZ, Liu S, Papanicolaou GJ, Irvin MR, Xue L, Griffin PJ, Nalls MA, Adeyemo A, Liu J, Li G, Ruiz-Narvaez EA, Chen WM, Chen F, Henderson BE, Millikan RC, Ambrosone CB, Strom SS, Guo X, Andrews JS, Sun YV, Mosley TH, Yanek LR, Shriner D, Haritunians T, Rotter JI, Speliotes EK, Smith M, Rosenberg L, Mychaleckyj J, Nayak U, Spruill I, Garvey WT, Pettaway C, Nyante S, Bandera EV, Britton AF, Zonderman AB, Rasmussen-Torvik LJ, Chen YD, Ding J, Lohman K, Kritchevsky SB, Zhao W, Peyser PA, Kardia SL, Kabagambe E, Broeckel U, Chen G, Zhou J, Wassertheil-Smoller S, Neuhouser ML, Rampersaud E, Psaty B, Kooperberg C, Manson JE, Kuller LH, Ochs-Balcom HM, Johnson KC, Sucheston L, Ordovas JM, Palmer JR, Haiman CA, McKnight B, Howard BV, Becker DM, Bielak LF, Liu Y, Allison MA, Grant SF, Burke GL, Patel SR, Schreiner PJ, Borecki IB, Evans MK, Taylor H, Sale MM, Howard V, Carlson CS, Rotimi CN, Cushman M, Harris TB, Reiner AP, Cupples LA, North KE, Fox CS. Genome-wide association of body fat distribution in African ancestry populations suggests new loci. PLoS Genet. 2013;9(8):e1003681. doi: 10.1371/journal.pgen.1003681. PubMed PMID: 23966867; PMCID: 3744443. *I performed the MESA GWAS analyses for this paper.
9. Monda KL, Chen GK, Taylor KC, Palmer C, Edwards TL, Lange LA, Ng MC, Adeyemo AA, Allison MA, Bielak LF, Chen G, Graff M, Irvin MR, Rhie SK, Li G, Liu Y, Liu Y, Lu Y, Nalls MA, Sun YV, Wojczynski MK, Yanek LR, Aldrich MC, Ademola A, Amos CI, Bandera EV, Bock CH, Britton A, Broeckel U, Cai Q, Caporaso NE, Carlson CS, Carpten J, Casey G, Chen WM, Chen F, Chen YD, Chiang CW, Coetzee GA, Demerath E, Deming-Halverson SL, Driver RW, Dubbert P, Feitosa MF, Feng Y, Freedman BI, Gillanders EM, Gottesman O, Guo X, Haritunians T, Harris T, Harris CC, Hennis AJ, Hernandez DG, McNeill LH, Howard TD, Howard BV, Howard VJ, Johnson KC, Kang SJ, Keating BJ, Kolb S, Kuller LH, Kutlar A, Langefeld CD, Lettre G, Lohman K, Lotay V, Lyon H, Manson JE, Maixner W, Meng YA, Monroe KR, Morhason-Bello I, Murphy AB, Mychaleckyj JC, Nadukuru R, Nathanson KL, Nayak U, N'Diaye A, Nemesure B, Wu SY, Leske MC, NeslundDudas C, Neuhouser M, Nyante S, Ochs-Balcom H, Ogunniyi A, Ogundiran TO, Ojengbede O, Olopade OI, Palmer JR, RuizNarvaez EA, Palmer ND, Press MF, Rampersaud E, Rasmussen-Torvik LJ, Rodriguez-Gil JL, Salako B, Schadt EE, Schwartz AG, Shriner DA, Siscovick D, Smith SB, Wassertheil-Smoller S, Speliotes EK, Spitz MR, Sucheston L, Taylor H, Tayo BO, Tucker MA, Van Den Berg DJ, Edwards DR, Wang Z, Wiencke JK, Winkler TW, Witte JS, Wrensch M, Wu X, Yang JJ, Levin AM, Young TR, Zakai NA, Cushman M, Zanetti KA, Zhao JH, Zhao W, Zheng Y, Zhou J, Ziegler RG, Zmuda JM, Fernandes JK, Gilkeson GS, Kamen DL, Hunt KJ, Spruill IJ, Ambrosone CB, Ambs S, Arnett DK, Atwood L, Becker DM, Berndt SI, Bernstein L, Blot WJ, Borecki IB, Bottinger EP, Bowden DW, Burke G, Chanock SJ, Cooper RS, Ding J, Duggan D, Evans MK, Fox C, Garvey WT, Bradfield JP, Hakonarson H, Grant SF, Hsing A, Chu L, Hu JJ, Huo D, Ingles SA, John EM, Jordan JM, Kabagambe EK, Kardia SL, Kittles RA, Goodman PJ, Klein EA, Kolonel LN, Le Marchand L, Liu S, McKnight B, Millikan RC, Mosley TH, Padhukasahasram B, Williams LK, Patel SR, Peters U, Pettaway CA, Peyser PA, Psaty BM, Redline S, Rotimi CN, Rybicki BA, Sale MM, Schreiner PJ, Signorello LB, Singleton AB, Stanford JL, Strom SS, Thun MJ, Vitolins M, Zheng W, Moore JH, Williams SM, Ketkar S, Zhu X, Zonderman AB, Consortium N, Consortium U, BioBank Japan P, Consortium A, Kooperberg C, Papanicolaou GJ, Henderson BE, Reiner AP, Hirschhorn JN, Loos RJ, North KE, Haiman CA. A meta-analysis identifies new loci associated with body mass index in individuals of African ancestry. Nat Genet. 2013;45(6):690-6. doi: 10.1038/ng.2608. PubMed PMID: 23583978; PMCID: 3694490. *I performed the MESA GWAS analyses for this paper.
10. Ng MC, Saxena R, Li J, Palmer ND, Dimitrov L, Xu J, Rasmussen-Torvik LJ, Zmuda JM, Siscovick DS, Patel SR, Crook ED, Sims M, Chen YD, Bertoni AG, Li M, Grant SF, Dupuis J, Meigs JB, Psaty BM, Pankow JS, Langefeld CD, Freedman BI, Rotter JI, Wilson JG, Bowden DW. Transferability and fine mapping of type 2 diabetes loci in African Americans: the Candidate Gene Association Resource Plus Study. Diabetes. 2013;62(3):965-76. doi: 10.2337/db12-0266. PubMed PMID: 23193183; PMCID: 3581206.*I was the CARDIA representative for this paper.
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11. Kraja AT, Chasman DI, North KE, Reiner AP, Yanek LR, Kilpelainen TO, Smith JA, Dehghan A, Dupuis J, Johnson AD, Feitosa MF, Tekola-Ayele F, Chu AY, Nolte IM, Dastani Z, Morris A, Pendergrass SA, Sun YV, Ritchie MD, Vaez A, Lin H, Ligthart S, Marullo L, Rohde R, Shao Y, Ziegler MA, Im HK, Cross Consortia Pleiotropy G, Cohorts for Heart a, Aging Research in Genetic E, Genetic Investigation of Anthropometric Traits C, Global Lipids Genetics C, Meta-Analyses of G, Insulin-related traits C, Global BC, Consortium AD, Women's Genome Health S, Howard University Family S, Schnabel RB, Jorgensen T, Jorgensen ME, Hansen T, Pedersen O, Stolk RP, Snieder H, Hofman A, Uitterlinden AG, Franco OH, Ikram MA, Richards JB, Rotimi C, Wilson JG, Lange L, Ganesh SK, Nalls M, Rasmussen-Torvik LJ, Pankow JS, Coresh J, Tang W, Linda Kao WH, Boerwinkle E, Morrison AC, Ridker PM, Becker DM, Rotter JI, Kardia SL, Loos RJ, Larson MG, Hsu YH, Province MA, Tracy R, Voight BF, Vaidya D, O'Donnell CJ, Benjamin EJ, Alizadeh BZ, Prokopenko I, Meigs JB, Borecki IB. Pleiotropic genes for metabolic syndrome and inflammation. Mol Genet Metab. 2014;112(4):317-38. doi: 10.1016/j.ymgme.2014.04.007. PubMed PMID: 24981077; PMCID: 4122618. *I was the ARIC representative for this paper.
12. Ng MC, Shriner D, Chen BH, Li J, Chen WM, Guo X, Liu J, Bielinski SJ, Yanek LR, Nalls MA, Comeau ME, Rasmussen-Torvik LJ, Jensen RA, Evans DS, Sun YV, An P, Patel SR, Lu Y, Long J, Armstrong LL, Wagenknecht L, Yang L, Snively BM, Palmer ND, Mudgal P, Langefeld CD, Keene KL, Freedman BI, Mychaleckyj JC, Nayak U, Raffel LJ, Goodarzi MO, Chen YD, Taylor HA, Jr., Correa A, Sims M, Couper D, Pankow JS, Boerwinkle E, Adeyemo A, Doumatey A, Chen G, Mathias RA, Vaidya D, Singleton AB, Zonderman AB, Igo RP, Jr., Sedor JR, Consortium F, Kabagambe EK, Siscovick DS, McKnight B, Rice K, Liu Y, Hsueh WC, Zhao W, Bielak LF, Kraja A, Province MA, Bottinger EP, Gottesman O, Cai Q, Zheng W, Blot WJ, Lowe WL, Pacheco JA, Crawford DC, e MC, Consortium D, Grundberg E, Mu TC, Rich SS, Hayes MG, Shu XO, Loos RJ, Borecki IB, Peyser PA, Cummings SR, Psaty BM, Fornage M, Iyengar SK, Evans MK, Becker DM, Kao WH, Wilson JG, Rotter JI, Sale MM, Liu S, Rotimi CN, Bowden DW, Consortium ME-aotDiAA. Meta-analysis of genome-wide association studies in African Americans provides insights into the genetic architecture of type 2 diabetes. PLoS Genet. 2014;10(8):e1004517. doi: 10.1371/journal.pgen.1004517. PubMed PMID: 25102180; PMCID: 4125087. *I was the CARDIA representative for this paper.
13. Palmer ND, Goodarzi MO, Langefeld CD, Wang N, Guo X, Taylor KD, Fingerlin TE, Norris JM, Buchanan TA, Xiang AH, Haritunians T, Ziegler JT, Williams AH, Stefanovski D, Cui J, Mackay AW, Henkin LF, Bergman RN, Gao X, Gauderman J, Varma R, Hanis CL, Cox NJ, Highland HM, Below JE, Williams AL, Burtt NP, Aguilar-Salinas CA, Huerta-Chagoya A, Gonzalez-Villalpando C, Orozco L, Haiman CA, Tsai MY, Johnson WC, Yao J, Rasmussen-Torvik L, Pankow J, Snively B, Jackson RD, Liu S, Nadler JL, Kandeel F, Chen YD, Bowden DW, Rich SS, Raffel LJ, Rotter JI, Watanabe RM, Wagenknecht LE. Genetic Variants Associated With Quantitative Glucose Homeostasis Traits Translate to Type 2 Diabetes in Mexican Americans: The GUARDIAN (Genetics Underlying Diabetes in Hispanics) Consortium. Diabetes. 2015;64(5):1853-66. doi: 10.2337/db14-0732. PubMed PMID: 25524916; PMCID: 4407862. *I performed MESA GWAS replication analysis for this paper.
14. Wessel J, Chu AY, Willems SM, Wang S, Yaghootkar H, Brody JA, Dauriz M, Hivert MF, Raghavan S, Lipovich L, Hidalgo B, Fox K, Huffman JE, An P, Lu Y, Rasmussen-Torvik LJ, Grarup N, Ehm MG, Li L, Baldridge AS, Stancakova A, Abrol R, Besse C, Boland A, Bork-Jensen J, Fornage M, Freitag DF, Garcia ME, Guo X, Hara K, Isaacs A, Jakobsdottir J, Lange LA, Layton JC, Li M, Hua Zhao J, Meidtner K, Morrison AC, Nalls MA, Peters MJ, Sabater-Lleal M, Schurmann C, Silveira A, Smith AV, Southam L, Stoiber MH, Strawbridge RJ, Taylor KD, Varga TV, Allin KH, Amin N, Aponte JL, Aung T, Barbieri C, Bihlmeyer NA, Boehnke M, Bombieri C, Bowden DW, Burns SM, Chen Y, Chen YD, Cheng CY, Correa A, Czajkowski J, Dehghan A, Ehret GB, Eiriksdottir G, Escher SA, Farmaki AE, Franberg M, Gambaro G, Giulianini F, Goddard WA, 3rd, Goel A, Gottesman O, Grove ML, Gustafsson S, Hai Y, Hallmans G, Heo J, Hoffmann P, Ikram MK, Jensen RA, Jorgensen ME, Jorgensen T, Karaleftheri M, Khor CC, Kirkpatrick A, Kraja AT, Kuusisto J, Lange EM, Lee IT, Lee WJ, Leong A, Liao J, Liu C, Liu Y, Lindgren CM, Linneberg A, Malerba G, Mamakou V, Marouli E, Maruthur NM, Matchan A, McKeanCowdin R, McLeod O, Metcalf GA, Mohlke KL, Muzny DM, Ntalla I, Palmer ND, Pasko D, Peter A, Rayner NW, Renstrom F, Rice K, Sala CF, Sennblad B, Serafetinidis I, Smith JA, Soranzo N, Speliotes EK, Stahl EA, Stirrups K, Tentolouris N, Thanopoulou A, Torres M, Traglia M, Tsafantakis E, Javad S, Yanek LR, Zengini E, Becker DM, Bis JC, Brown JB, Cupples LA, Hansen T, Ingelsson E, Karter AJ, Lorenzo C, Mathias RA, Norris JM, Peloso GM, Sheu WH, Toniolo D, Vaidya D, Varma R, Wagenknecht LE, Boeing H, Bottinger EP, Dedoussis G, Deloukas P, Ferrannini E, Franco OH, Franks PW, Gibbs RA,
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Gudnason V, Hamsten A, Harris TB, Hattersley AT, Hayward C, Hofman A, Jansson JH, Langenberg C, Launer LJ, Levy D, Oostra BA, O'Donnell CJ, O'Rahilly S, Padmanabhan S, Pankow JS, Polasek O, Province MA, Rich SS, Ridker PM, Rudan I, Schulze MB, Smith BH, Uitterlinden AG, Walker M, Watkins H, Wong TY, Zeggini E, Consortium EP-I, Laakso M, Borecki IB, Chasman DI, Pedersen O, Psaty BM, Tai ES, van Duijn CM, Wareham NJ, Waterworth DM, Boerwinkle E, Kao WH, Florez JC, Loos RJ, Wilson JG, Frayling TM, Siscovick DS, Dupuis J, Rotter JI, Meigs JB, Scott RA, Goodarzi MO. Low-frequency and rare exome chip variants associate with fasting glucose and type 2 diabetes susceptibility. Nat Commun. 2015;6:5897. doi: 10.1038/ncomms6897. PubMed PMID: 25631608; PMCID: 4311266. *I directed CARDIA rare varaint analysis for this paper and participated in the primary writing group.
15. Kilpelainen TO, Carli JF, Skowronski AA, Sun Q, Kriebel J, Feitosa MF, Hedman AK, Drong AW, Hayes JE, Zhao J, Pers TH, Schick U, Grarup N, Kutalik Z, Trompet S, Mangino M, Kristiansson K, Beekman M, Lyytikainen LP, Eriksson J, Henneman P, Lahti J, Tanaka T, Luan J, Del Greco MF, Pasko D, Renstrom F, Willems SM, Mahajan A, Rose LM, Guo X, Liu Y, Kleber ME, Perusse L, Gaunt T, Ahluwalia TS, Ju Sung Y, Ramos YF, Amin N, Amuzu A, Barroso I, Bellis C, Blangero J, Buckley BM, Bohringer S, YD IC, de Craen AJ, Crosslin DR, Dale CE, Dastani Z, Day FR, Deelen J, Delgado GE, Demirkan A, Finucane FM, Ford I, Garcia ME, Gieger C, Gustafsson S, Hallmans G, Hankinson SE, Havulinna AS, Herder C, Hernandez D, Hicks AA, Hunter DJ, Illig T, Ingelsson E, Ioan-Facsinay A, Jansson JO, Jenny NS, Jorgensen ME, Jorgensen T, Karlsson M, Koenig W, Kraft P, Kwekkeboom J, Laatikainen T, Ladwig KH, LeDuc CA, Lowe G, Lu Y, Marques-Vidal P, Meisinger C, Menni C, Morris AP, Myers RH, Mannisto S, Nalls MA, Paternoster L, Peters A, Pradhan AD, Rankinen T, RasmussenTorvik LJ, Rathmann W, Rice TK, Brent Richards J, Ridker PM, Sattar N, Savage DB, Soderberg S, Timpson NJ, Vandenput L, van Heemst D, Uh HW, Vohl MC, Walker M, Wichmann HE, Widen E, Wood AR, Yao J, Zeller T, Zhang Y, Meulenbelt I, Kloppenburg M, Astrup A, Sorensen TI, Sarzynski MA, Rao DC, Jousilahti P, Vartiainen E, Hofman A, Rivadeneira F, Uitterlinden AG, Kajantie E, Osmond C, Palotie A, Eriksson JG, Heliovaara M, Knekt PB, Koskinen S, Jula A, Perola M, Huupponen RK, Viikari JS, Kahonen M, Lehtimaki T, Raitakari OT, Mellstrom D, Lorentzon M, Casas JP, Bandinelli S, Marz W, Isaacs A, van Dijk KW, van Duijn CM, Harris TB, Bouchard C, Allison MA, Chasman DI, Ohlsson C, Lind L, Scott RA, Langenberg C, Wareham NJ, Ferrucci L, Frayling TM, Pramstaller PP, Borecki IB, Waterworth DM, Bergmann S, Waeber G, Vollenweider P, Vestergaard H, Hansen T, Pedersen O, Hu FB, Eline Slagboom P, Grallert H, Spector TD, Jukema JW, Klein RJ, Schadt EE, Franks PW, Lindgren CM, Leibel RL, Loos RJ. Genome-wide meta-analysis uncovers novel loci influencing circulating leptin levels. Nat Commun. 2016;7:10494. doi: 10.1038/ncomms10494. PubMed PMID: 26833098; PMCID: 4740377. *I performed the MESA GWAS analysis for this paper.
16. Liu CT, Raghavan S, Maruthur N, Kabagambe EK, Hong J, Ng MC, Hivert MF, Lu Y, An P, Bentley AR, Drolet AM, Gaulton KJ, Guo X, Armstrong LL, Irvin MR, Li M, Lipovich L, Rybin DV, Taylor KD, Agyemang C, Palmer ND, Cade BE, Chen WM, Dauriz M, Delaney JA, Edwards TL, Evans DS, Evans MK, Lange LA, Leong A, Liu J, Liu Y, Nayak U, Patel SR, Porneala BC, Rasmussen-Torvik LJ, Snijder MB, Stallings SC, Tanaka T, Yanek LR, Zhao W, Becker DM, Bielak LF, Biggs ML, Bottinger EP, Bowden DW, Chen G, Correa A, Couper DJ, Crawford DC, Cushman M, Eicher JD, Fornage M, Franceschini N, Fu YP, Goodarzi MO, Gottesman O, Hara K, Harris TB, Jensen RA, Johnson AD, Jhun MA, Karter AJ, Keller MF, Kho AN, Kizer JR, Krauss RM, Langefeld CD, Li X, Liang J, Liu S, Lowe WL, Jr., Mosley TH, North KE, Pacheco JA, Peyser PA, Patrick AL, Rice KM, Selvin E, Sims M, Smith JA, Tajuddin SM, Vaidya D, Wren MP, Yao J, Zhu X, Ziegler JT, Zmuda JM, Zonderman AB, Zwinderman AH, Consortium A, Consortium CA, Consortium C-B, e MC, Consortium M, Adeyemo A, Boerwinkle E, Ferrucci L, Hayes MG, Kardia SL, Miljkovic I, Pankow JS, Rotimi CN, Sale MM, Wagenknecht LE, Arnett DK, Chen YD, Nalls MA, Consortium M, Province MA, Kao WH, Siscovick DS, Psaty BM, Wilson JG, Loos RJ, Dupuis J, Rich SS, Florez JC, Rotter JI, Morris AP, Meigs JB. Trans-ethnic Meta-analysis and Functional Annotation Illuminates the Genetic Architecture of Fasting Glucose and Insulin. Am J Hum Genet. 2016;99(1):56-75. doi: 10.1016/j.ajhg.2016.05.006. PubMed PMID: 27321945; PMCID: 5005440. * I was the CARDIA representative for this paper.
17. van 't Hof FN, Ruigrok YM, Lee CH, Ripke S, Anderson G, de Andrade M, Baas AF, Blankensteijn JD, Bottinger EP, Bown MJ, Broderick J, Bijlenga P, Carrell DS, Crawford DC, Crosslin DR, Ebeling C, Eriksson JG, Fornage M, Foroud T, von Und Zu Fraunberg M, Friedrich CM, Gaal EI, Gottesman O, Guo DC, Harrison SC, Hernesniemi J, Hofman A, Inoue I, Jaaskelainen JE, Jones GT, Kiemeney LA, Kivisaari R, Ko N, Koskinen S, Kubo M, Kullo IJ, Kuivaniemi H, Kurki MI, Laakso A, Lai D, Leal SM, Lehto H, LeMaire SA, Low SK, Malinowski J, McCarty CA, Milewicz DM, Mosley TH, Nakamura Y, Nakaoka H, Niemela M, Pacheco J, Peissig PL, Pera J, Rasmussen-Torvik L, Ritchie MD, Rivadeneira F, van Rij AM, Santos-Cortez
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RL, Saratzis A, Slowik A, Takahashi A, Tromp G, Uitterlinden AG, Verma SS, Vermeulen SH, Wang GT, Aneurysm C, Vascular Research Consortium of New Z, Han B, Rinkel GJ, de Bakker PI. Shared Genetic Risk Factors of Intracranial, Abdominal, and Thoracic Aneurysms. J Am Heart Assoc. 2016;5(7). doi: 10.1161/JAHA.115.002603. PubMed PMID: 27418160; PMCID: 5015357. * I was the Northwestern eMERGE representative on this paper.
18. Graff M, Scott RA, Justice AE, Young KL, Feitosa MF, Barata L, Winkler TW, Chu AY, Mahajan A, Hadley D, Xue L, Workalemahu T, Heard-Costa NL, den Hoed M, Ahluwalia TS, Qi Q, Ngwa JS, Renstrom F, Quaye L, Eicher JD, Hayes JE, Cornelis M, Kutalik Z, Lim E, Luan J, Huffman JE, Zhang W, Zhao W, Griffin PJ, Haller T, Ahmad S, Marques-Vidal PM, Bien S, Yengo L, Teumer A, Smith AV, Kumari M, Harder MN, Justesen JM, Kleber ME, Hollensted M, Lohman K, Rivera NV, Whitfield JB, Zhao JH, Stringham HM, Lyytikainen LP, Huppertz C, Willemsen G, Peyrot WJ, Wu Y, Kristiansson K, Demirkan A, Fornage M, Hassinen M, Bielak LF, Cadby G, Tanaka T, Magi R, van der Most PJ, Jackson AU, Bragg-Gresham JL, Vitart V, Marten J, Navarro P, Bellis C, Pasko D, Johansson A, Snitker S, Cheng YC, Eriksson J, Lim U, Aadahl M, Adair LS, Amin N, Balkau B, Auvinen J, Beilby J, Bergman RN, Bergmann S, Bertoni AG, Blangero J, Bonnefond A, Bonnycastle LL, Borja JB, Brage S, Busonero F, Buyske S, Campbell H, Chines PS, Collins FS, Corre T, Smith GD, Delgado GE, Dueker N, Dorr M, Ebeling T, Eiriksdottir G, Esko T, Faul JD, Fu M, Faerch K, Gieger C, Glaser S, Gong J, Gordon-Larsen P, Grallert H, Grammer TB, Grarup N, van Grootheest G, Harald K, Hastie ND, Havulinna AS, Hernandez D, Hindorff L, Hocking LJ, Holmens OL, Holzapfel C, Hottenga JJ, Huang J, Huang T, Hui J, Huth C, Hutri-Kahonen N, James AL, Jansson JO, Jhun MA, Juonala M, Kinnunen L, Koistinen HA, Kolcic I, Komulainen P, Kuusisto J, Kvaloy K, Kahonen M, Lakka TA, Launer LJ, Lehne B, Lindgren CM, Lorentzon M, Luben R, Marre M, Milaneschi Y, Monda KL, Montgomery GW, De Moor MHM, Mulas A, Muller-Nurasyid M, Musk AW, Mannikko R, Mannisto S, Narisu N, Nauck M, Nettleton JA, Nolte IM, Oldehinkel AJ, Olden M, Ong KK, Padmanabhan S, Paternoster L, Perez J, Perola M, Peters A, Peters U, Peyser PA, Prokopenko I, Puolijoki H, Raitakari OT, Rankinen T, Rasmussen-Torvik LJ, Rawal R, Ridker PM, Rose LM, Rudan I, Sarti C, Sarzynski MA, Savonen K, Scott WR, Sanna S, Shuldiner AR, Sidney S, Silbernagel G, Smith BH, Smith JA, Snieder H, Stancakova A, Sternfeld B, Swift AJ, Tammelin T, Tan ST, Thorand B, Thuillier D, Vandenput L, Vestergaard H, van Vliet-Ostaptchouk JV, Vohl MC, Volker U, Waeber G, Walker M, Wild S, Wong A, Wright AF, Zillikens MC, Zubair N, Haiman CA, Lemarchand L, Gyllensten U, Ohlsson C, Hofman A, Rivadeneira F, Uitterlinden AG, Perusse L, Wilson JF, Hayward C, Polasek O, Cucca F, Hveem K, Hartman CA, Tonjes A, Bandinelli S, Palmer LJ, Kardia SLR, Rauramaa R, Sorensen TIA, Tuomilehto J, Salomaa V, Penninx B, de Geus EJC, Boomsma DI, Lehtimaki T, Mangino M, Laakso M, Bouchard C, Martin NG, Kuh D, Liu Y, Linneberg A, Marz W, Strauch K, Kivimaki M, Harris TB, Gudnason V, Volzke H, Qi L, Jarvelin MR, Chambers JC, Kooner JS, Froguel P, Kooperberg C, Vollenweider P, Hallmans G, Hansen T, Pedersen O, Metspalu A, Wareham NJ, Langenberg C, Weir DR, Porteous DJ, Boerwinkle E, Chasman DI, Consortium C, Consortium EP-I, Consortium P, Abecasis GR, Barroso I, McCarthy MI, Frayling TM, O'Connell JR, van Duijn CM, Boehnke M, Heid IM, Mohlke KL, Strachan DP, Fox CS, Liu CT, Hirschhorn JN, Klein RJ, Johnson AD, Borecki IB, Franks PW, North KE, Cupples LA, Loos RJF, Kilpelainen TO. Genome-wide physical activity interactions in adiposity - A meta-analysis of 200,452 adults. PLoS Genet. 2017;13(4):e1006528. doi: 10.1371/journal.pgen.1006528. PubMed PMID: 28448500; PMCID: PMC5407576. * I directed MESA GWAS analysis for this paper.
19. Holzinger ER, Verma SS, Moore CB, Hall M, De R, Gilbert-Diamond D, Lanktree MB, Pankratz N, Amuzu A, Burt A, Dale C, Dudek S, Furlong CE, Gaunt TR, Kim DS, Riess H, Sivapalaratnam S, Tragante V, van Iperen EPA, Brautbar A, Carrell DS, Crosslin DR, Jarvik GP, Kuivaniemi H, Kullo IJ, Larson EB, Rasmussen-Torvik LJ, Tromp G, Baumert J, Cruickshanks KJ, Farrall M, Hingorani AD, Hovingh GK, Kleber ME, Klein BE, Klein R, Koenig W, Lange LA, Mrz W, North KE, Charlotte Onland-Moret N, Reiner AP, Talmud PJ, van der Schouw YT, Wilson JG, Kivimaki M, Kumari M, Moore JH, Drenos F, Asselbergs FW, Keating BJ, Ritchie MD. Discovery and replication of SNP-SNP interactions for quantitative lipid traits in over 60,000 individuals. BioData Min. 2017;10:25. Epub 2017/08/05. doi: 10.1186/s13040-017-0145-5. PubMed PMID: 28770004; PMCID: PMC5525436. * I was an eMERGE representative for this paper.
20. Jones GT, Tromp G, Kuivaniemi H, Gretarsdottir S, Baas AF, Giusti B, Strauss E, Van't Hof FN, Webb TR, Erdman R, Ritchie MD, Elmore JR, Verma A, Pendergrass S, Kullo IJ, Ye Z, Peissig PL, Gottesman O, Verma SS, Malinowski J, Rasmussen-Torvik LJ, Borthwick KM, Smelser DT, Crosslin DR, de Andrade M, Ryer EJ, McCarty CA, Bottinger EP, Pacheco JA, Crawford DC, Carrell DS, Gerhard GS, Franklin DP, Carey DJ, Phillips VL, Williams MJ, Wei W, Blair R, Hill AA, Vasudevan TM, Lewis DR, Thomson IA, Krysa J, Hill GB, Roake J, Merriman TR, Oszkinis G, Galora S, Saracini C, Abbate R,
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Case: 1:20-cv-02134 Document #: 64-4 Filed: 04/19/20 Page 27 of 34 PageID #:1849
Pulli R, Pratesi C, Saratzis A, Verissimo AR, Bumpstead S, Badger SA, Clough RE, Cockerill G, Hafez H, Scott DJ, Futers TS, Romaine SP, Bridge K, Griffin KJ, Bailey MA, Smith A, Thompson MM, van Bockxmeer FM, Matthiasson SE, Thorleifsson G, Thorsteinsdottir U, Blankensteijn JD, Teijink JA, Wijmenga C, de Graaf J, Kiemeney LA, Lindholt JS, Hughes A, Bradley DT, Stirrups K, Golledge J, Norman PE, Powell JT, Humphries SE, Hamby SE, Goodall AH, Nelson CP, Sakalihasan N, Courtois A, Ferrell RE, Eriksson P, Folkersen L, Franco-Cereceda A, Eicher JD, Johnson AD, Betsholtz C, Ruusalepp A, Franzen O, Schadt EE, Bjorkegren JL, Lipovich L, Drolet AM, Verhoeven EL, Zeebregts CJ, Geelkerken RH, van Sambeek MR, van Sterkenburg SM, de Vries JP, Stefansson K, Thompson JR, de Bakker PI, Deloukas P, Sayers RD, Harrison SC, van Rij AM, Samani NJ, Bown MJ. Meta-Analysis of Genome-Wide Association Studies for Abdominal Aortic Aneurysm Identifies Four New Disease-Specific Risk Loci. Circ Res. 2017;120(2):341-53. doi: 10.1161/CIRCRESAHA.116.308765. PubMed PMID: 27899403; PMCID: 5253231. * I was the Northwestern eMERGE representative on this paper.
21. Justice AE, Winkler TW, Feitosa MF, Graff M, Fisher VA, Young K, Barata L, Deng X, Czajkowski J, Hadley D, Ngwa JS, Ahluwalia TS, Chu AY, Heard-Costa NL, Lim E, Perez J, Eicher JD, Kutalik Z, Xue L, Mahajan A, Renstrom F, Wu J, Qi Q, Ahmad S, Alfred T, Amin N, Bielak LF, Bonnefond A, Bragg J, Cadby G, Chittani M, Coggeshall S, Corre T, Direk N, Eriksson J, Fischer K, Gorski M, Neergaard Harder M, Horikoshi M, Huang T, Huffman JE, Jackson AU, Justesen JM, Kanoni S, Kinnunen L, Kleber ME, Komulainen P, Kumari M, Lim U, Luan J, Lyytikainen LP, Mangino M, Manichaikul A, Marten J, Middelberg RPS, Muller-Nurasyid M, Navarro P, Perusse L, Pervjakova N, Sarti C, Smith AV, Smith JA, Stancakova A, Strawbridge RJ, Stringham HM, Sung YJ, Tanaka T, Teumer A, Trompet S, van der Laan SW, van der Most PJ, Van VlietOstaptchouk JV, Vedantam SL, Verweij N, Vink JM, Vitart V, Wu Y, Yengo L, Zhang W, Hua Zhao J, Zimmermann ME, Zubair N, Abecasis GR, Adair LS, Afaq S, Afzal U, Bakker SJL, Bartz TM, Beilby J, Bergman RN, Bergmann S, Biffar R, Blangero J, Boerwinkle E, Bonnycastle LL, Bottinger E, Braga D, Buckley BM, Buyske S, Campbell H, Chambers JC, Collins FS, Curran JE, de Borst GJ, de Craen AJM, de Geus EJC, Dedoussis G, Delgado GE, den Ruijter HM, Eiriksdottir G, Eriksson AL, Esko T, Faul JD, Ford I, Forrester T, Gertow K, Gigante B, Glorioso N, Gong J, Grallert H, Grammer TB, Grarup N, Haitjema S, Hallmans G, Hamsten A, Hansen T, Harris TB, Hartman CA, Hassinen M, Hastie ND, Heath AC, Hernandez D, Hindorff L, Hocking LJ, Hollensted M, Holmen OL, Homuth G, Jan Hottenga J, Huang J, Hung J, Hutri-Kahonen N, Ingelsson E, James AL, Jansson JO, Jarvelin MR, Jhun MA, Jorgensen ME, Juonala M, Kahonen M, Karlsson M, Koistinen HA, Kolcic I, Kolovou G, Kooperberg C, Kramer BK, Kuusisto J, Kvaloy K, Lakka TA, Langenberg C, Launer LJ, Leander K, Lee NR, Lind L, Lindgren CM, Linneberg A, Lobbens S, Loh M, Lorentzon M, Luben R, Lubke G, Ludolph-Donislawski A, Lupoli S, Madden PAF, Mannikko R, Marques-Vidal P, Martin NG, McKenzie CA, McKnight B, Mellstrom D, Menni C, Montgomery GW, Musk AB, Narisu N, Nauck M, Nolte IM, Oldehinkel AJ, Olden M, Ong KK, Padmanabhan S, Peyser PA, Pisinger C, Porteous DJ, Raitakari OT, Rankinen T, Rao DC, Rasmussen-Torvik LJ, Rawal R, Rice T, Ridker PM, Rose LM, Bien SA, Rudan I, Sanna S, Sarzynski MA, Sattar N, Savonen K, Schlessinger D, Scholtens S, Schurmann C, Scott RA, Sennblad B, Siemelink MA, Silbernagel G, Slagboom PE, Snieder H, Staessen JA, Stott DJ, Swertz MA, Swift AJ, Taylor KD, Tayo BO, Thorand B, Thuillier D, Tuomilehto J, Uitterlinden AG, Vandenput L, Vohl MC, Volzke H, Vonk JM, Waeber G, Waldenberger M, Westendorp RGJ, Wild S, Willemsen G, Wolffenbuttel BHR, Wong A, Wright AF, Zhao W, Zillikens MC, Baldassarre D, Balkau B, Bandinelli S, Boger CA, Boomsma DI, Bouchard C, Bruinenberg M, Chasman DI, Chen YD, Chines PS, Cooper RS, Cucca F, Cusi D, Faire U, Ferrucci L, Franks PW, Froguel P, Gordon-Larsen P, Grabe HJ, Gudnason V, Haiman CA, Hayward C, Hveem K, Johnson AD, Wouter Jukema J, Kardia SLR, Kivimaki M, Kooner JS, Kuh D, Laakso M, Lehtimaki T, Marchand LL, Marz W, McCarthy MI, Metspalu A, Morris AP, Ohlsson C, Palmer LJ, Pasterkamp G, Pedersen O, Peters A, Peters U, Polasek O, Psaty BM, Qi L, Rauramaa R, Smith BH, Sorensen TIA, Strauch K, Tiemeier H, Tremoli E, van der Harst P, Vestergaard H, Vollenweider P, Wareham NJ, Weir DR, Whitfield JB, Wilson JF, Tyrrell J, Frayling TM, Barroso I, Boehnke M, Deloukas P, Fox CS, Hirschhorn JN, Hunter DJ, Spector TD, Strachan DP, van Duijn CM, Heid IM, Mohlke KL, Marchini J, Loos RJF, Kilpelainen TO, Liu CT, Borecki IB, North KE, Cupples LA. Genome-wide meta-analysis of 241,258 adults accounting for smoking behaviour identifies novel loci for obesity traits. Nat Commun. 2017;8:14977. doi: 10.1038/ncomms14977. PubMed PMID: 28443625; PMCID: PMC5414044. * I directed MESA GWAS analysis for this paper.
22. Wheeler E, Leong A, Liu CT, Hivert MF, Strawbridge RJ, Podmore C, Li M, Yao J, Sim X, Hong J, Chu AY, Zhang W, Wang X, Chen P, Maruthur NM, Porneala BC, Sharp SJ, Jia Y, Kabagambe EK, Chang LC, Chen WM, Elks CE, Evans DS, Fan Q, Giulianini F, Go MJ, Hottenga JJ, Hu Y, Jackson AU, Kanoni S, Kim YJ, Kleber ME, Ladenvall C, Lecoeur C, Lim SH, Lu Y, Mahajan A, Marzi C, Nalls MA, Navarro P, Nolte IM, Rose LM, Rybin DV, Sanna S, Shi Y, Stram DO, Takeuchi F, Tan SP, van
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der Most PJ, Van Vliet-Ostaptchouk JV, Wong A, Yengo L, Zhao W, Goel A, Martinez Larrad MT, Radke D, Salo P, Tanaka T, van Iperen EPA, Abecasis G, Afaq S, Alizadeh BZ, Bertoni AG, Bonnefond A, Bottcher Y, Bottinger EP, Campbell H, Carlson OD, Chen CH, Cho YS, Garvey WT, Gieger C, Goodarzi MO, Grallert H, Hamsten A, Hartman CA, Herder C, Hsiung CA, Huang J, Igase M, Isono M, Katsuya T, Khor CC, Kiess W, Kohara K, Kovacs P, Lee J, Lee WJ, Lehne B, Li H, Liu J, Lobbens S, Luan J, Lyssenko V, Meitinger T, Miki T, Miljkovic I, Moon S, Mulas A, Muller G, Muller-Nurasyid M, Nagaraja R, Nauck M, Pankow JS, Polasek O, Prokopenko I, Ramos PS, Rasmussen-Torvik L, Rathmann W, Rich SS, Robertson NR, Roden M, Roussel R, Rudan I, Scott RA, Scott WR, Sennblad B, Siscovick DS, Strauch K, Sun L, Swertz M, Tajuddin SM, Taylor KD, Teo YY, Tham YC, Tonjes A, Wareham NJ, Willemsen G, Wilsgaard T, Hingorani AD, Consortium E-C, Consortium EP-I, Lifelines Cohort S, Egan J, Ferrucci L, Hovingh GK, Jula A, Kivimaki M, Kumari M, Njolstad I, Palmer CNA, Serrano Rios M, Stumvoll M, Watkins H, Aung T, Bluher M, Boehnke M, Boomsma DI, Bornstein SR, Chambers JC, Chasman DI, Chen YI, Chen YT, Cheng CY, Cucca F, de Geus EJC, Deloukas P, Evans MK, Fornage M, Friedlander Y, Froguel P, Groop L, Gross MD, Harris TB, Hayward C, Heng CK, Ingelsson E, Kato N, Kim BJ, Koh WP, Kooner JS, Korner A, Kuh D, Kuusisto J, Laakso M, Lin X, Liu Y, Loos RJF, Magnusson PKE, Marz W, McCarthy MI, Oldehinkel AJ, Ong KK, Pedersen NL, Pereira MA, Peters A, Ridker PM, Sabanayagam C, Sale M, Saleheen D, Saltevo J, Schwarz PE, Sheu WHH, Snieder H, Spector TD, Tabara Y, Tuomilehto J, van Dam RM, Wilson JG, Wilson JF, Wolffenbuttel BHR, Wong TY, Wu JY, Yuan JM, Zonderman AB, Soranzo N, Guo X, Roberts DJ, Florez JC, Sladek R, Dupuis J, Morris AP, Tai ES, Selvin E, Rotter JI, Langenberg C, Barroso I, Meigs JB. Impact of common genetic determinants of Hemoglobin A1c on type 2 diabetes risk and diagnosis in ancestrally diverse populations: A transethnic genome-wide meta-analysis. PLoS Med. 2017;14(9):e1002383. Epub 2017/09/13. doi: 10.1371/journal.pmed.1002383. PubMed PMID: 28898252; PMCID: PMC5595282. *I was the CARDIA representative for this paper.
23. Do AN, Zhao W, Baldridge AS, Raffield LM, Wiggins KL, Shah SJ, Aslibekyan S, Tiwari HK, Limdi N, Zhi D, Sitlani CM, Taylor KD, Psaty BM, Sotoodehnia N, Brody JA, Rasmussen-Torvik LJ, Lloyd-Jones D, Lange LA, Wilson JG, Smith JA, Kardia SLR, Mosley TH, Vasan RS, Arnett DK, Irvin MR. Genome-wide meta-analysis of SNP and antihypertensive medication interactions on left ventricular traits in African Americans. Mol Genet Genomic Med. 2019;7(10):e00788. Epub 2019/08/14. doi: 10.1002/mgg3.788. PubMed PMID: 31407531; PMCID: PMC6785453. * I was the CARDIA representative for this paper.
24. Guan M, Keaton JM, Dimitrov L, Hicks PJ, Xu J, Palmer ND, Ma L, Das SK, Chen YI, Coresh J, Fornage M, Franceschini N, Kramer H, Langefeld CD, Mychaleckyj JC, Parekh RS, Post WS, Rasmussen-Torvik LJ, Rich SS, Rotter JI, Sedor JR, Thornley-Brown D, Tin A, Wilson JG, Freedman BI, Bowden DW, Ng MCY, Consortium F. Genome-wide association study identifies novel loci for type 2 diabetes-attributed end-stage kidney disease in African Americans. Hum Genomics. 2019;13(1):21. Epub 2019/05/17. doi: 10.1186/s40246-019-0205-7. PubMed PMID: 31092297; PMCID: PMC6521376. * I was the MESA represtative for this paper.
25. Liu CT, Merino J, Rybin D, DiCorpo D, Benke KS, Bragg-Gresham JL, Canouil M, Corre T, Grallert H, Isaacs A, Kutalik Z, Lahti J, Marullo L, Marzi C, Rasmussen-Torvik LJ, Rocheleau G, Rueedi R, Scapoli C, Verweij N, Vogelzangs N, Willems SM, Yengo L, Bakker SJL, Beilby J, Hui J, Kajantie E, Muller-Nurasyid M, Rathmann W, Balkau B, Bergmann S, Eriksson JG, Florez JC, Froguel P, Harris T, Hung J, James AL, Kavousi M, Miljkovic I, Musk AW, Palmer LJ, Peters A, Roussel R, van der Harst P, van Duijn CM, Vollenweider P, Barroso I, Prokopenko I, Dupuis J, Meigs JB, Bouatia-Naji N. Genome-wide Association Study of Change in Fasting Glucose over time in 13,807 non-diabetic European Ancestry Individuals. Sci Rep. 2019;9(1):9439. Epub 2019/07/03. doi: 10.1038/s41598-019-45823-7. PubMed PMID: 31263163; PMCID: PMC6602949. * I performed the ARIC analyses for this paper.
B. Invited Reviews and Commentaries
1. Rasmussen-Torvik LJ, Harlow BL. The association between depression and diabetes in the perinatal period. Curr Diab Rep. 2010;10(3):217-23. doi: 10.1007/s11892-010-0108-4. PubMed PMID: 20425585.
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2. Carnethon MR, Rasmussen-Torvik LJ, Palaniappan L. The obesity paradox in diabetes. Curr Cardiol Rep. 2014;16(2):446. doi: 10.1007/s11886-013-0446-3. PubMed PMID: 24408674. 3. Rasmussen-Torvik LJ, Colangelo LA, Lima JAC, Jacobs DR, Jr., Rodriguez CJ, Gidding SS, Lloyd-Jones DM, Shah SJ. Rasmussen-Torvik et al. Respond to "The Perfect Measure of Diastolic Dysfunction". Am J Epidemiol. 2017:1-2. doi: 10.1093/aje/kww216. PubMed PMID: 28453663.
C. Books and Book Chapters
1. Katz, DH, Rasmussen-Torvik, LJ. Genome-Wide Association Studies. In: Shah, SJ, Arnett, DK, editors. Cardiovascular Genetics and Genomics in Clinical Practice. New York: Demos Medical Publishing, LLC; 2015. P. 23-33.
D. Peer-Reviewed Educational Materials
E. Case Reports, Letters, Editorials
1. Folsom AR, Cushman M, Rasmussen-Torvik LJ, Heckbert SR, Tsai MY. Prospective study of polymorphisms of the protein Z-dependent protease inhibitor and risk of venous thromboembolism. Thromb Haemost. 2007;97(3):493-4. PubMed PMID: 17334519.
F. Practice Guidelines, Standards, and Consensus Statements
G. Public Policy and Legislative Testimony
H. Patents
I. Database Deposition
J. Software
K. Abstracts (*denotes presenting author)
a. Oral Abstract Presentations
1. Rasmussen-Torvik LJ*, North KE, Gu CC, Lewis CE, Wilk JB, Chakravarti A, Chang YP, Miller MB, Li N, Devereux RB, Arnett DK. A population association study of angiotensinogen polymorphisms and haplotypes with left ventricular phenotypes. American Heart Association 45th Annual Convention on Cardiovascular Disease Epidemiology and Prevention (NHLBI Trainee Presentation Session), March 2005. 2. Rasmussen-Torvik LJ*, Pankow JS, Jacobs Jr. DR, Steffen LM, Moran AM, Steinberger S, Leiendecker-Foster C, Sinaiko AR. Waist is Associated Longitudinally with Adiponectin but not with Clamp-derived Insulin Sensitivity in a Cohort of Adolescents. American Heart Association 47th Annual Convention on Cardiovascular Disease Epidemiology and Prevention (NHLBI Trainee Presentation Session), February 28-March 3, 2007. 3. Rasmussen-Torvik LJ*, Li M, Kao WH, Couper D, Boerwinkle E, Bielinski SJ, Folsom AR, Pankow JS. Association of a fasting glucose genetic risk score with subclinical atherosclerosis: The Atherosclerosis Risk in Communities (ARIC) study. American Heart Association 50th Annual Convention on Cardiovascular Disease Epidemiology and Prevention March 2010.
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4. Rasmussen-Torvik LJ, Shay CM*, Abramson JG, Friedrich CA, Nettleton JA, Prizment AE, Folsom AR. Ideal cardiovascular health is inversely associated with incident cancer: the Atherosclerosis Risk In Communities study. American Heart Association Scientific Sessions. Orlando, FL, November 2011.
5. Rasmussen-Torvik LJ*, Colangelo L, Lima J, Jacobs D, Rodrigez C, Lloyd-Jones D, Shah S. Issues with echocardiographic definitions of diastolic dysfunction in the CARDIA Study. American Heart Association Scientific Sessions. Chicago, IL, November 2014.
b. Poster Presentations
1. Liquori CL*, Ricker K, Jacobsen JF, Rasmussen LJ, Dick KA, Dalton JC, Day JW, Ranum LPW. Multiple Haplotypes in DM2 Indicate Multiple Founder Mutations. American Society of Human Genetics 51st Annual Meeting, October 12-16, 2001.
2. Moseley ML*, Rasmussen LJ, Pryor J, Roberts K, Day JW, Ranum LPW. SCA8 Repeat Contractions in the Male Germline Occur Before Meiosis. American Society of Human Genetics 51st Annual Meeting, October 12-16, 2001.
3. Rasmussen-Torvik LJ*, Pankow JS, Miller MB, Evans GW, Heiss G, Sholinsky P. Familial Aggregation Analysis and Genome Scan of Carotid Artery Plaque in the NHLBI Family Heart Study. American Heart Association 44th Annual Conference on Cardiovascular Disease Epidemiology and Prevention, March 3-7, 2004.
4. Rasmussen-Torvik LJ*, Pankow JS, Jacobs Jr. DR, Steffen LM, Moran AM, Steinberger S, Leiendecker-Foster C, Sinaiko AR. Heritability, Genetic Correlations, and Genetic Associations of Insulin Sensitivity and Fasting Insulin Measured by the Euglycemic Hyperinsulinemic Clamp. American Heart Association 46th Annual Convention on Cardiovascular Disease Epidemiology and Prevention, March 2-5, 2006.
5. Rasmussen-Torvik LJ*, Cushman M, Tsai M, Heckbert S, Rosamond W, Folsom A. Positive Association of the αFibrinogen Thr312Ala Polymorphism with Venous Thromboembolism in the Longitudinal Investigation of Venous Thromboembolism (LITE) Study. Second North American Congress of Epidemiology, June 21-24, 2006.
6. Wassel Fyr CL*, Pankow JS, Rasmussen-Torvik LJ, Li N, Taylor KD, Guo X, Goodarzi MO, Palmas W, Post W. Adiponectin gene (ADIPOQ) polymorphisms are associated with subclinical cardiovascular disease (CVD) phenotypes in the Multi-Ethnic Study of Atherosclerosis (MESA). American Heart Association 48th Annual Convention on Cardiovascular Disease Epidemiology and Prevention, March 13-15, 2008.
7. Kottgen A*, Bi M, Boerwinkle W, North K, Hoogeveen R, Rasmussen-Torvik LJ, Coresh J, Kao W. rs780094 of Glucokinase Regulator Gene is Associated with Multiple Metabolic Traits: The Atherosclerosis Risk in Communities Study. American Heart Association 49th Annual Convention on Cardiovascular Disease Epidemiology and Prevention, March 11-14, 2009.
8. Rasmussen-Torvik LJ*, Pankow JS, Wassel CL, Goodarzi MO, Guo X, Shea SJ, Hsu F-C, Bowden DW. Association of ADIPOQ, TNFA, and TNFRSF1A Single-Nucleotide Polymorphisms with Insulin Resistance; The Multi Ethnic Study of Atherosclerosis (MESA). American Heart Association 49th Annual Convention on Cardiovascular Disease Epidemiology and Prevention, March 11-14, 2009.
9. Rasmussen-Torvik LJ*, Alonso A, Li M, Kao W, Kottgen A, Yan Y, Couper D, Boerwinkle E, Bielinski S, Pankow J. Genome-Wide Association Study of Repeated Fasting Glucose Measures; The ARIC Study. American Diabetes Association 69th Scientific Sessions, June 5-9, 2009.
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10. Dreyfus J*, Steffen L, Rasmussen-Torvik LJ, Steinberger J, Moran A, Jacobs D, Hong CP, Sinaiko A. The Association of the PPARgamma Pro 12A1a Polymorphism with Cardiovascular Disease Risk Factors among Adolescents. Society for Pediatric and Perinatal Epidemiologic Research 23rd Annual Meeting, June 22-23, 2010.
11. Lutsey P*, Rasmussen-Torvik LJ, Pankow JS, Tang W, Coresh J, Volcik KA, Ballantyne CM, Boerwinkle E, Folsom AR. Relation of lipid gene scores to longitudinal trends in lipid levels and incidence of abnormal lipid levels among Caucasians: The Atherosclerosis Risk in Communities (ARIC). American Heart Association. 2011 Scientific Sessions. March 22 – 25, 2011.
12. Rasmussen-Torvik LJ*, Wassel CL, Ding J, Jenny N, Allison M. Correlations among the Leptin to Adiponectin Ratio, Adiposity, and Insulin Resistance across Ethnic Groups: The Multi-Ethnic Study of Atherosclerosis (MESA). American Heart Association. 2011 Scientific Sessions. March 22 – 25, 2011.
13. Bielinski SJ*, Pankow JS, Rasmussen-Torvik LJ, Bailey K, Li M, Selvin E, Couper D, Vazquez G, Brancati F. Strength of Association for Incident Diabetes Risk Factors differ by Diabetes Case Definitions: The Atherosclerosis Risk in Communities (ARIC). American Heart Association. 2011 Scientific Sessions. March 22 – 25, 2011.
14. Hivert MF*, Manning A, Scott R, Chen H, Bouatia-Naji N, Bielak L, Rasmussen-Torvik LJ, Florez JC, Prokopenko I, Langenberg C, Watanabe R, Dupuis J, Meigs JB. Accounting for the Interaction between Body Mass Index and Genes helps reveal new loci associated with fasting insulin: A Genome-Wide Association Study Meta-Analysis of 29 Cohorts. American Heart Association. 2011 Scientific Sessions. March 22 – 25, 2011.
15. Liu C*, Adeyemo A, Bielinski S, Boerwinkle E, Borecki I, Bowden DW, Chen YD I, Djousse L, Fornage M, Goodarzi MO, Grant S FA, Grimsby J, Guo X, Harris T, Jensen R, Kao L, Kabagambe E, Kizer J, Liu Y, Mukamal K, Nettleton J, Ng M, Pankow J, Parekh R, Patel S, Ramos E, Rasmussen-Torvik LJ, Redline S, Rich SS, Rotimi C, Rotter JI, Rybin D, Sarpong D, Shriner D, Sims M, Siscovick D, Wilson JG, Zmuda J, Dupuis J, Florez JC, Meigs JB. Transferability and Fine-Mapping of Fasting Glucose Quantitative Trait Loci across Populations: CARe, the Candidate Gene Association Resource. American Diabetes Association 201. San Diego, California. June 24-28, 2011.
16. Rasmussen-Torvik LJ*, Guo X, Bowden D, Bertoni A, Sale M, Rotter J, Bluemke D, Goodarzi M, Chen Y-D, Vaidya D, Raffel L, Pankow J. Association of GWAS Candidate SNPs with Fasting Glucose Across Ethnic Groups in MESA. American Diabetes Association conference. San Diego, CA. June 24-28, 2011.
17. Scott RA*, Manning AK, Hivert M-F, Bouatia-Naji N, Grimsby J, Liu C-T, Chen H, Bielak LF, Rasmussen-Torvik LJ, Wareham NJ, Watanbe RM, Florez JC, Langenberg C, Dupuis J, Meigs JB. Gernome-wide joint meta-analysis of SNP by BMI interaction on fasting insulin: A MAGIC study. 47th European Association for the Study of Diabetes Annual Meeting. Lisbon, Portugal. September 12-16, 2011.
18. Hayes MG*, Kho A, Armstrong LL, Ritchie MD, Pacheco JA, Rasmussen-Torvik LJ, Just EM, Denny J, Crawford DC, Peissig P, Rasmussen LV, Wei W, de Andrade M, Kullo IJ, Crosslin DR, Mirel D, Crenshaw A, Doheny KF, PughE , Wolf WA, Lowe WL, Roden DM, Chisholm RL. Use of Diverse Electronic Medical Record Systems for a Genome-wide Association Study of Type 2 Diabetes in European- and African-ancestry populations. Presented at American Society for Human Genetics. 2011. Montreal, Canada. October 11-15, 2011
19. Rasmussen-Torvik LJ*, Pacheco JA, Hayes MG, Kho AN, Muthalagu A, Armstrong LL, Scheftner DA, Wilkins JT, Crosslin D, Ritchie M, Wilke R, Li R, Manolio T, Chisholm R. African American LDL-C GWAS reveals a strong protective SNP Association in APOE: the eMERGE study. American Heart Association 2012 EPI NPAM Scientific Sessions. San Diego, CA. March 2012.
20. Wassel CL*, Rasmussen-Torvik LJ, Callas PW, Deneberg JO, Durda JP, Reiner AP, Smith NL, Allison MA, Criqui MH, Cushman M. Genetic Risk Scores are Associated with Chronic Venous Disease Prevalence and Severity in a MultiEthnic Cohort: The San Diego Population Study. American Heart Association 2012 EPI NPAM Scientific Sessions. San Diego, CA. March 2012.
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Case: 1:20-cv-02134 Document #: 64-4 Filed: 04/19/20 Page 32 of 34 PageID #:1854
21. Vassy J*, Durant NH, Kabagambe EK, Carnethon MR, Rasmussen-Torvik LJ, Fornage M, Lewis CE, Siscovick DS, Meigs JM. A Genotype Risk Score Predicts Type 2 Diabetes from Young Adulthood: the CARDIA Study. American Diabetes Association. 2012 Scientific Sessions. Philadelphia, Pennsylvania. June 8-12, 2012.
22. LJ Rasmussen-Torvik*, J Denny, MS Williams, B Keating, A Brautbar, C Prows, S Manzi , SJ Bielinski, S Scott, J Ralston S Volpi, A Gordo, J Haines, D Roden. The PGx project: design and implementation. IGES meeting, Chicago, IL, September 2012.
23. Selvaraj S*, Aguilar FG, Martinez E, Kim KYA, Peng J, Rasmussen-Torvik LJ, Sha J, Irvin R, Arnett DK, Shah SJ. Diastolic Wall Strain: A Simple Marker of Abnormal Cardiac Mechanics. American Heart Association 2012 Scientific Sessions. Los Angeles, CA. November 5, 2012.
24. Shah SJ*, Aguilar FG, Selvaraj S, Martinez EE, Kim KYA, Peng J, Rasmussen-Torvik LJ, Sha J, Irvin R, Budinger S, Mutlu GM, Arnett DK. Adverse Effects of Obesity, Hyperglycemia, and Insulin Resistance on Cardiac Mechanics. American Heart Association 2012 Scientific Sessions. Los Angeles, CA. November 7, 2012.
25. Vardeny O*, Gupta D, Claggett B, Burke SL, Shah A, Loehr LR, Rasmussen-Torvik LJ, Selvin E, Chang PP, Aguilar A, Solomon SD. The Association between Insulin Resistance and Incident Heart Failure in the Aric Study. American Heart Association 2012 Scientific Sessions. Los Angeles, CA. November 7, 2012.
26. Aguilar FG*, Selvaraj A, Martinez EE, Kim CYA, Peng J, Rasmussen-Torvik LJ, Sha J, Irvin R, Arnett DK, Shah SJ. Serum Uric Acid is an Independent Risk Factor for Subclinical Cardiac Dysfunction: A Speckle-Tracking Analysis of the HyperGE. American Heart Association 2012 Scientific Sessions. Los Angeles, CA. November 7, 2012.
27. Allen N, Rasmussen-Torvik L*, Arguelles LM, Hwang S, Fornage M, Morrison A, Daviglus M, Levy D, Cupples LA, Fox C, Rotter J, Palmas W, Allison M, Pankow J, Lloyd-Jones D, O’Donnell C. Genetic Loci Associated with Ideal Cardiovascular Health: A Meta-Analysis of Genome-wide Association Studies. Presented as a moderated poster (MP55) at American Heart Association Cardiovascular Epidemiology Conference, New Orleans, LA. March 20, 2013
28. Rasmussen-Torvik LJ*, de Chavez P, Bertoni A, Bowden D, Dyer A, Golden SH, Meigs J, Pankow J, Liu K, Vassy J, Carnethon MR. Association of SNP rs7903146 in TCF7L2 with incident type 2 diabetes in normal weight and overweight/obese individuals; a pooled analysis. New Orleans, LA. March 20, 2013.
29. Rasmussen-Torvik LJ*, Pacheco JA, Aufox SA, Kim KYA, Hungness E, Smith ME. Demographic Predictors of Longterm Weight Loss After Bariatric Surgery, ACRT meeting, Washington, DC, June 2013
30. Rasmussen-Torvik LJ*, Denny J, Williams MS, Keating B, Brautbar A, Prows C, Manzi S, Bielinski SJ, Scott S, Ralston J, Volpi S, Gordo A, Haines J, Roden D. The PGx project: design and implementation. IGES meeting, Chicago, IL, September 2013.
31. Rasmussen-Torvik LJ*, Pacheco JA, Aufox SA, Kim KYA, Hungness E, Smith ME, Carnethon MR, Greenland P. Association of a variant at 15q26.1 with long-term weight regain after bariatric surgery. Obesity Week, Atlanta GA, November 2013.
32. Carnethon MR*, De Chavez PJD, Rasmussen-Torvik LJ, Womack V, Kershaw K. Trends in Diabetes by Socioeconomic Status between 1999-2010: National Health and Nutrition Examination Surveys. American Heart Association 2014 Scientific Sessions. San Francisco, CA. 19 March 2014.
33. Allen NB*, Hallman DM, Gooding H, Rasmussen-Torvik LJ, Shay C, Steffen L, Labarthe DR, MD. Heterogeneity in Blood Pressure and Lipid Trajectories throughout Childhood: Project HeartBeat! American Heart Association 2014 Scientific Sessions. San Francisco, CA. March 2014.
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Case: 1:20-cv-02134 Document #: 64-4 Filed: 04/19/20 Page 33 of 34 PageID #:1855
34. Rasmussen-Torvik LJ*, Baldridge A, Pacheco J, Aufox S, Kim K, Silverstein J, Denham E, Hungness E, Smith M, Greenland P. Demographic Predictors of Long-term Weight Loss Beginning One-Year After Bariatric Surgery at Two Medical Centers. American Heart Association 2014 Scientific Sessions. San Francisco, CA. March 2014.
35. Van Driest SL*, Stallings S, Bush WS, Gordon A, Crosslin DR, Jarvik GP, Carrell DS, Bielinski SJ, Olson JE, Ye Z, Kullo IJ, Abul-Husn NS, Scott SA, Castillo BA, Connolly J, Hakonarson H, Rasmussen-Torvik LJ, Persell S, Smith M, Kitchner T, Wallace JR, Doheny KF, Li R, Manolio TA, Callis TE, Macaya D, Ackerman MJ, Ritchie MD, Denny JC, Roden DM. Rare potentially pathogenic variants in the congenital arrhythmia syndrome disease genes SCN5A and KCNH2 are detected frequently but rarely associated with arrhythmia phenotypes in electronic health records. Peer reviewed poster presentation. American Society for Human Genetics. San Diego, CA. October 2014
36. Kullo IJ*, Rasmussen-Torvik LJ et al. Association of rare variants in LDL. Peer reviewed poster presentation. American Society for Human Genetics. San Diego, CA. October 2014.
37. Stallings S*, Rasmussen-Torvik LJ, et al. The Electronic Medical Records and Genomics NetworkPharmacogenomics (eMERGE-PGx) Project. American College of Medical Genetics and Genomics Annual Clinical Genetics Meeting. Bethesda, MD. March 2015
38. Rasmussen-Torvik LJ*, Colangelo L, Lima J, Jacobs D, Rodrigez C, Lloyd-Jones D, Shah S. Overlap of echocardiographic definitions of diastolic dysfunction in the CARDIA Study. American Heart Association 2015 Epidemiology and Lifestyle Council Meeting. Baltimore, MD. March 2015.
39. Rasmussen-Torvik LJ*, de Chavez PJ , Kershaw KN, Knutson KL, Kim KY, Zee P, Carnethon MR. Mediation of racial differences in hypertension by sleep characteristic: The Chicago Area Sleep Study. American Heart Association 2016 Epidemiology and Lifestyle Council Meeting. Phoenix, AZ. March 2016.
40. Wassel Christina L*, Rasmussen-Torvik LJ, Frazier-Wood Alexis, Allison Matthew A., McDermott Mary M., Folsom Aaron R., Lloyd-Jones Donald M., Allen Norrina B., Burke Gregory L., Szklo Moyses, Criqui Michael H., Cushman Mary. American Heart Association (AHA)’s Life’s 2 Simple 7 and Risk of Lower Extremity Peripheral Artery Disease (PAD): The Multi Ethnic Study of Atherosclerosis (MESA). American Heart Association 2016 Epidemiology and Lifestyle Council Meeting. Phoenix, AZ. March 2016.
41. Safarova MS*, Fan X, Jarvik GP, Leppig KA, Rasmussen-Torvik LJ, Pendergrass S, Sturm A, Namjou B, Shah A, Carroll R, Chung WK, Wei WQ, Stein M, Williams MA, Roden DM, Denny JC, Kullo IJ. A Phenome-wide Association Study to Assess Pleiotropic Effects of LPA. American Heart Association Scientific Sessions 2017, Anaheim, California.
42. Wei WQ*, Li X, Feng Q, Kubo M, Kullo IJ, Peissig PL, Karlson EL, Jarvik GP, Lee MT, Shang N, Larson EA, Edwards T, Shaffer C, Mosley JD, Maeda S, Horikoshi M, Ritchie MS, Williams MS, Larson EB, Crosslin DR, Bland ST, Pacheco JA, Rasmussen-Torvik LJ, Cronkite D, Hripcsak G, Cox NJ, Wilke RA, Stein CM, Rotter JI, Momozawa Y, Roden DM, Krauss RM, Denny JC. LPA variants are associated with residual cardiovascular risk in patients receiving statins. American Heart Association Scientific Sessions 2017, Anaheim, California.
43. Pottinger TD*, Puckelwartz M, Dellafave-Castillo L, Pesce L, Robinson A, Pacheco J, Hoell C, Aufox S, RasmussenTorvik LJ, Smith M, Chisholm R, McNally E. Higher genetic variability in genes linked to inherited cardiac disorders in subjects of African descent. American Heart Association Scientific Sessions 2018, Chicago, IL.
44. Bavishi A*, Ning H, Glynn P, Ahmad F, Yancy Y, Shah S, Rasmussen-Torvik LJ, Lloyd-Jones D, Kahn S. Validation of a heart failure risk assessment tool in a large contemporary electronic health record population. American College of Cardiology 2019, New Orleans, LA.
MEDIA COVERAGE AND APPEARANCES
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Case: 1:20-cv-02134 Document #: 64-4 Filed: 04/19/20 Page 34 of 34 PageID #:1856
There article below attracted considerable popular press attention: Rasmussen-Torvik LJ, Shay CM, Abramson JG, Friedrich CA, Nettleton JA, Prizment AE, Folsom AR. Ideal cardiovascular health is inversely associated with incident cancer: the Atherosclerosis Risk In Communities study. Circulation. 2013;127(12):1270-5. doi: 10.1161/CIRCULATIONAHA.112.001183. PubMed PMID: 23509058; PMCID: 3685848. I was interviewed by CBS radio, CTV news, and the Chicago Tribune. Some links to this coverage are pasted below. http://www.ctvnews.ca/health/health-headlines/how-a-healthy-heart-can-keep-cancer-at-bay-1.1201616 http://www.theglobeandmail.com/life/health-and-fitness/health-navigator/being-heart-healthy-can-help-preventcancer-study/article9927902/ http://www.cbsnews.com/news/key-to-cancer-prevention-may-be-keeping-your-heart-healthy/ http://www.dailymail.co.uk/health/article-2295568/The-seven-point-plan-healthy-life-Simple-lifestyle-steps-helpprevent-cancer-heart-disease-new-study-finds.html http://abcnews.go.com/blogs/health/2013/03/18/7-steps-to-cut-cancer-risk-in-half/ http://health.usnews.com/health-news/news/articles/2013/03/18/whats-good-for-the-heart-may-also-prevent-cancer
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Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 1 of 14 PageID #:1857
GROUP EXHIBIT D

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 2 of 14 PageID #:1858

Affidavit of Elizabeth Corrado For Bryant Blake

My name is Elizabeth Corrado. I am a Volunteer Investigator at the Chicago Community Bond Fund, assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, I spoke to Bryant Blake, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Blake is 51 years old. He is residing in Division 11 (Div11-BF-310-1) of the Cook County Jail. He is incarcerated on $100,000 bond that he cannot afford to pay. He has been in the Jail since February 29, 2020.

2. Mr. Blake was residing in quarantine until April 12. His previous roommate contracted COVID-19, at which point he was moved from a double cell to a single cell. Mr. Blake asked to be tested after his cellmate tested positive, but he did not receive a test.

3. Mr. Blake has a spinal and neck injury. He is supposed to receive bilateral facial injections because of the injury but he has not been receiving them.

4. Social distancing is not possible in the Jail. The detainees in Mr. Blake’s tier share showers, toilets and sinks. They share 12 tables in the dayroom, and phones, which are under 2 feet apart.

5. Mr. Blake has access to soap but not hand sanitizer. He does not have access to cleaning supplies for his cell and it does not get cleaned regularly.

6. Mr. Blake received a mask for the first time on April 12.

7. Mr. Blake has written multiple grievances since the pandemic started, including one asking for a COVID-19 test after his cellmate tested positive. He has not seen a counselor to submit the grievances.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Elizabeth Corrado Elizabeth Corrado

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 3 of 14 PageID #:1859

Affidavit of Elizabeth Corrado For Kevin Watson

My name is Elizabeth Corrado. I am a Volunteer Investigator at the Chicago Community Bond Fund, assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, I spoke to Kevin Watson, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Watson is 35 years old. He is residing in Division 11 (Div11-AH-401-1) of the Cook County Jail. He is incarcerated on a no bond order. He was booked in the Jail on August 24, 2019.

2. Mr. Watson is HIV-positive and he has a hernia.

3. Mr. Watson’s deck went on quarantine on April 14. The deck across from his is also on quarantine (after three people tested positive). Four people from the deck across from Mr. Watson’s were moved to his deck on April 13. One of those people had a fever, and he was then moved to Division 4. Mr. Watson’s deck first had their temperatures taken on April 14. A nurse told him that if it was 102 degrees or over, it was a symptom of COVID.

4. Because they are on quarantine, people on Mr. Watson’s deck are only allowed out of their cells for 2.5 hours total in a day, 6 people at a time.

5. Everyone on the deck shares showers, sinks and toilets.

6. Mr. Watson has filed two grievances related to COVID but has not received a response.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Elizabeth Corrado Elizabeth Corrado

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 4 of 14 PageID #:1860

Affidavit of Elizabeth Corrado on Behalf of Charles Bocock
My name is Elizabeth Corrado. I am a volunteer investigator helping Plaintiffs’ counsel in Mays v. Dart. On April 16, 2020, I spoke to Charles Bocock, who is a detainee in the Cook County Jail.
1. Charles Bocock was transferred to Division 4 on April 15.
2. His unit experienced flooding and has been closed for a while. A lot of the toilets and sinks don’t work.
3. There is no heat on the Division 4 tier.
4. Detainees were told not to drink the water coming from the taps. A cooler was brought in and placed in the day room, but detainees are only allowed in the day room for a few hours each day.
5. The plumbing is broken in most of the cells so it’s impossible to wash hands.
6. He has not seen cleaning supplies. Whereas in Division 6 (his origin division) the COs had spray bottles to disinfect things, none of the guards here do.
7. Some guards placed duct tape and sprayed paint on the floor and said it had something to do with social distancing, but didn’t explained how it works, and haven’t enforced it.
8. Detainees have no cleaning cloths in Division 4, so they have ripped apart towels of detainees who have been discharged.
9. A person in Division 6 who was in the kitchen tested positive for COVID-19 and went to Stroger.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 19, 2020 Chicago, Illinois

/s/ Elizabeth Corrado Elizabeth Corrado

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 5 of 14 PageID #:1861

Affidavit of Jason Hammond For Javier Montanez

My name is Jason Hammond. I am a Volunteer Investigator at the Chicago Community Bond Fund, assisting Plaintiffs’ counsel in Mays v. Dart. On April 16, I spoke to Javier Montanez, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Montanez is 52 years old. He is residing in Division 6 (DIV6-1L-21-2) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since March 29, 2019.

2. Mr. Montanez has Hepatitis C and high blood pressure. He is supposed to be receiving blood draws every three weeks because of his Hepatitis. Mr. Montanez has not been receiving the draws, and he was told that medical was shut down.

3. The entire division is on lockdown/quarantine. Mr. Montanez is let out of his cell 6 hours per day, and locked in for 18 hours per day. 12 people ae allowed in the dayroom at a time.

4. Everyone shares the dayroom bathroom, as well as general showers and toilets. People share dayroom tables, three phones and a single microwave.

5. Mr. Montanez receives soap but not hand sanitizer. Cells are never cleaned and the common areas only get cleaned with watered down bleach.

6. About a week ago, detainees started receiving one mask per day.

7. Nobody in Mr. Montanez’s tier has been tested for COVID-19.

8. Mr. Montanez submitted a grievance about COVID two weeks ago (April 2) but has not received a response. He also wrote to a person at Cermak about his complaint but did not receive a response.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Jason Hammond Jason Hammond

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 6 of 14 PageID #:1862

Affidavit of Jason Hammond For Jeffrey Ferguson

My name is Jason Hammond. I am a Volunteer Investigator at the Chicago Community Bond Fund, assisting Plaintiffs’ counsel in Mays v. Dart. On April 16, I spoke to Jeffrey Ferguson, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Ferguson is 42 years old. He is residing in Division 2 (DIV2-D2-N-23) of the Cook County Jail. He is incarcerated on a no bond order. He was booked in the Jail on January 22, 2018.

2. Mr. Ferguson has chronic mental health issues, including mania and psychosis, as well as high blood pressure.

3. Mr. Ferguson is living in an open dormitory, which is on quarantine. It is a working deck, and kitchen workers reside there.

4. Everyone on the deck shares a toilet, shower and sinks. The beds are 2-3 feet from one another. The detainees all share telephones, which are two feet apart, as well as tables for eating and one microwave that is shared with another unit as well.

5. Mr. Ferguson receives soap but rarely hand sanitizer. The bathrooms are very dirty as no one monitors that they get cleaned.

6. On April 12, all detainees in his unit started receiving a mask per day.

7. Some people on the deck have had serious COVID symptoms, and they were removed. On April 7, one person was brought in to the deck right after being booked, even though the deck was on quarantine.

8. Mr. Ferguson has had symptoms of COVID for about a week. He has asked twice to be tested but has still not received a test. Jail staff just started checking temperatures on April 13.

9. On April 12, Mr. Ferguson put duct tape down in the dayroom to remind detainees to social distance. But guards are making jokes about breaking compliance, and showing disregard for detainees’ health and inability to social distance.

10. On April 2, Mr. Ferguson tried to submit a health grievance. But there is no system for submitting grievances. The Jail is not giving out forms or receipts or signatures or any records that the Jail is receiving or processing grievances.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 16, 2020 Chicago, Illinois

/s/ Jason Hammond Jason Hammond

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 7 of 14 PageID #:1863

Affidavit of Jason Hammond on Behalf of Jalessa Boner for Dominick Wing

My name is Jason Hammond. I am a Volunteer Investigator at the Chicago Community Bond Fund, assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, I spoke to Jalessa Boner about Dominick Wing, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Wing is 27 years old. He is residing in Division 9 (DIV9-2B-2302-1) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since September 6, 2019.

2. Mr. Wing has asthma. He is currently out of medicine. Nurses have been ignoring his requests for asthma medicine for months.

3. Mr. Wing is residing in a two person cell in Division 9, with another person, who is sleeping four feet away from him. His tier is not on lockdown. 48 other people are on the tier.

4. Social distancing is not possible in the tier. People share the dayroom toilets, Mr. Wing shares a cell, and everyone shares the phones, which are two feet apart.

5. Mr. Wing does not have access to soap or hand sanitizer. Mr. Wing requested soap through Commissary but it was never delivered. He has no access to cleaning supplies.

6. Mr. Wing has not received a mask.

7. Mr. Wing filed a grievance asking for a COVID-19 test. He has not received a response.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Jason Hammond Jason Hammond

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 8 of 14 PageID #:1864

Affidavit of Jason Hammond on Behalf of Lamonte Powell
My name is Jason Hammond. I am a volunteer investigator at the Chicago Community Bond Fund, helping Plaintiffs’ counsel in Mays v. Dart. On April 18, 2020, I spoke to Lamonte Powell, who is a detainee in the Cook County Jail.
1. Lamonte Powell is housed in Division 11 on a $10,000 bond.
2. He is in a single cell. There are 12 people allowed out on his dayroom at a time.
3. Soap is available in the commissary but he has not received free soap.
4. Detainees are provided with hand sanitizer once a day, in the morning.
5. There is no cleaning of the cells, which is very worrisome; he does not know whether someone previously occupying had symptoms.
6. The common areas are cleaned every other day by 6 or 7 inmates from Division 11. They do a thorough job but the bleach is watered down.
7. He often sees guards with their masks off.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 18, 2020 Chicago, Illinois

/s/ Jason Hammond Jason Hammond

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 9 of 14 PageID #:1865

Affidavit of Kara Crutcher For Dante McGee

My name is Kara Crutcher. I am a Volunteer Investigator at the Chicago Community Bond Fund, assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, I spoke to Dante McGee, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. McGee is 58 years old. At the time of the conversation, Dante McGee was residing in Division 4 of the Cook County Jail. According to the Sheriff’s website, he is now in the Hospital wing of the Jail. He is incarcerated on a $30,000 bond he cannot afford to pay. He has been in the Jail since October 16, 2019.

2. While in Division 4, Mr. McGee lived with 24 other people. 12 people were left out of their cells at a time. They shared showers and sinks. They shared phones.

3. Mr. McGee receives small bars of soap. He does not have access to hand sanitizer or clean towels and wipes for cleaning. Mr. McGee’s cell in Division 4 was not cleaned.

4. Mr. McGee lived in Division 8 before Division 4. While there, he shared a cell with someone who tested positive.

5. Mr. McGee filed two grievances about the danger of COVID-19 in the Jail but never heard back.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Kara Crutcher Kara Crutcher

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 10 of 14 PageID #:1866

Affidavit of Kara Crutcher For Eric Blake
My name is Kara Crutcher. I am a Volunteer Investigator at the Chicago Community Bond Fund, assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, I spoke to Bryant Blake, a detainee in the Cook County Jail, who provided me the following information.
1. Mr. Blake is 25 years old. He is residing in Division 10 (DIV10-2A-2120-2) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since April 20, 2018.
2. Mr. Blake was residing in a double cell until April 12, when he was moved into a single cell. He is not in quarantine.
3. Social distancing is not practical. Half of the tier (24 people) come out of their cell, for 2.5 hours at a time. The people on his tier share sinks, showers, and toilets. They also share 12 tables in the common area and four phones.
4. People in the division have symptoms of dry throat, inability to breathe and fevers, but they were tested after telling staff they were sick.
5. One person was removed from the tier because he was sick. No one who was exposed to that man was tested for COVID-19.
6. Mr. Blake receives a hotel bar of soap, once a week. No one comes to clean his cell. Mr. Blake uses soap he bought in Commissary to clean his cell.
7. Detainees are receiving masks but not on a regular basis.
8. Mr. Blake put in one grievance for medical treatment because nurses have not been coming around for medical treatment. Mr. Blake gave the grievance to CO Sanders and has not heard anything.
9. Usually detainees give grievances to the social workers. But no social workers are allowed in the tier, so the grievances are disappearing.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Kara Crutcher Kara Crutcher

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 11 of 14 PageID #:1867

Affidavit of Laura Stempel on Behalf of Deon Baker

My name is Laura Stempel. I am a volunteer investigator at the Chicago Community Bond Fund, helping Plaintiffs’ counsel in Mays v. Dart. On April 18, 2020, I spoke to Deon Baker, who is a detainee in the Cook County Jail.

1. Deon Baker has asthma. He was housed in Division 11 but was recently moved to Division 4.

2. It appears that his unit has not been used for several years. Everything is filthy. The detainees were not given anything to clean their unit.

3. The sinks in the unit are rusted out and the water is the color of rust. The jail has provided a water cooler but it’s only accessible when staff make it available.

4. The unit has no heat and during this cold spell it has been extremely cold inside

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 18, 2020 Chicago, Illinois

/s/ Laura Stempel Laura Stempel

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 12 of 14 PageID #:1868

Affidavit of Laura Stempel on Behalf of Michael Jorgensen
My name is Laura Stempel. I am a Volunteer Investigator at the Chicago Community Bond Fund, assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, I spoke to Michael Jorgensen, a detainee in the Cook County Jail, who provided me the following information.
1. Mr. Jorgensen is 31 years old. He is residing in Division 10 (DIV10-2A-2106-2) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since February 16, 2018.
2. Mr. Jorgensen is residing in quarantine.
3. Mr. Jorgensen has had COVID-19 symptoms (cough, difficulty breathing) for some days. He did not receive care until he began vomiting blood. At that point he was put in isolation for five days and given antibiotics. He was unable to get tested.
4. Mr. Jorgensen filed a grievance asking for a COVID-19 test. He has not received a response.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Laura Stempel Laura Stempel

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 13 of 14 PageID #:1869

Affidavit of Sam Goldberg on Behalf of Isaac Correcillias-Correa
My name is Sam Goldberg. I am a volunteer investigator at the Chicago Community Bond Fund, helping Plaintiffs’ counsel in Mays v. Dart. On April 17, 2020, I spoke to Isaac CorrecilliasCorrea, who is a detainee in the Cook County Jail.
1. Isaac Correcillias-Correa is housed in Division 2, in a dorm setting.
2. There are about 150 people in the dorm. On April 16, they moved another 50 or so people to the dorm.
3. His bunk is close to others.
4. When eating the detainees use a common area. They have to sit picnic-bench style; social distancing is impossible in this setting.
5. Two bars of soap are given out each week but they are not enough to last a week. They would last two days if you were washing your hands after contact with other people.
6. The area is cleaned once per day by inmates.
7. Lots of people on the deck don’t feel well, but they aren’t tested. Some are removed, but the Jail does not disinfect the area near them. New people are moved in and they are given the removed detainee’s sheets.
8. There is no cleaning of the detainee phones between calls.
9. More than half the guards use masks, but many don’t use them.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 18, 2020 Chicago, Illinois

/s/ Sam Goldberg Sam Goldberg

Case: 1:20-cv-02134 Document #: 64-5 Filed: 04/19/20 Page 14 of 14 PageID #:1870

Affidavit of Sam Goldberg on Behalf of Joshua Barbee
My name is Sam Goldberg. I am a volunteer investigator at the Chicago Community Bond Fund, helping Plaintiffs’ counsel in Mays v. Dart. On April 17, 2020, I spoke to Joshua Barbee, who is a detainee in the Cook County Jail.
1. Joshua Barbee is housed in Division 6, in a tier setting.
2. Mr. Barbee was single-celled until the morning of April 17, when another detainee was placed in his cell.
3. Detainees are given two bars of soap per week, size of a hotel soap bar. It is not enough to last the week. You can ask a guard for more soap, but only some guards will give it to you.
4. There is no cleaning of the phones between uses.
5. There is one bottle of disinfectant on the tier, it’s not enough to disinfect surfaces because it’s for everything.
6. Guards wear masks for the most part, but some don’t.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 19, 2020 Chicago, Illinois

/s/ Sam Goldberg Sam Goldberg

Case: 1:20-cv-02134 Document #: 64-6 Filed: 04/19/20 Page 1 of 31 PageID #:1871
GROUP EXHIBIT E

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as Director of the New York Field Office of ICE, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO at 1, ECF No. 6.
For the reasons stated below, the TRO is GRANTED, and (1) Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities, are ORDERED to immediately release Petitioners today on their own recognizance, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
BACKGROUND Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. They are housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 3–4. Specifically, Basank, Benitez Pineda, and Mazariegos are detained at the Hudson County Correctional Facility (“Hudson County Jail”). Petition ¶¶ 5, 7, 11. Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez are detained at the Bergen County Correctional Facility (“Bergen County Jail”). Id. ¶¶ 6, 8, 9, 10, 12. Pena and Picazo Nicolas are detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶¶ 13–14.1 Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, has underlying
1 During oral argument, Respondents represented to the Court that five Petitioners—Hernandez Balbuena, Legall, Menendez, Basank, and Benitez Pineda—are expected to be released today. However, because Petitioners are not yet released, and because counsel for Petitioners indicated, and Respondents did not dispute, that ICE may take as long as a day to complete the release process, the Court enters the TRO as to all Petitioners directing their immediate release today without fail.
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health conditions, including obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization for severe pneumonia. Id. ¶ 7. Hernandez Balbuena suffers from diabetes and diabetes-related complications. Id. ¶ 8. Legall is 33 years old, and suffers from respiratory problems, including asthma. Id. ¶ 9. Martinez, age 56, suffers from severe heart disease, and has a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez is 31 years old and suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease (“COPD”), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas, age 40, suffers from Type II diabetes and morbid obesity. Id. ¶ 14.
On March 16, 2020, Hannah McCrea, an attorney with Brooklyn Defender Services, emailed Assistant United States Attorney Michael Byars, requesting that ICE release particularly vulnerable individuals, including Basank, Legall, Martinez, and Picazo Nicolas. Harper Decl. ¶ 2, ECF No. 6-1. On March 18, 2020, AUSA Byars responded that he did “not have a timeframe for ICE’s response.” Id. ¶ 3. On March 24, 2020, Alexandra Lampert, also a lawyer with Brooklyn Defender Services, emailed Byars to request the release of additional individuals identified as particularly vulnerable, including Barrera Carrerro, Benitez Pineda, Hernandez Balbuena, Mazariegos, Menendez, and Pena. Id. ¶ 4. On March 25, 2020, Lampert again emailed Byars and informed him of Petitioners’ intent to seek a temporary restraining order in the Southern District of New York, with the amended petition attached, thus putting Respondents on notice of Petitioners’ serious medical conditions and their request for injunctive relief. Id. ¶¶ 5, 7.
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At 12:30 p.m. today, the Court held a telephonic hearing on Petitioners’ request for a TRO.
DISCUSSION I. Legal Standard
“A plaintiff seeking a temporary restraining order must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Natera, Inc. v. Bio-Reference Labs., Inc., No. 16 Civ. 9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted).
“It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). “The showing of irreparable harm is perhaps the single most important prerequisite for a preliminary injunction.” CF 135 Flat LLC v. Triadou SPY N.A., No. 15 Civ. 5345, 2016 WL 2349111, at *1 (S.D.N.Y. May 3, 2016) (internal quotation marks, citation, and alteration omitted). Under this prong, the movant “must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.” NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995). To satisfy this requirement, a movant must demonstrate “that he would suffer irreparable harm if the TRO does not issue.” Andino, 555 F. Supp. 2d at 419. “The district court has wide discretion in determining whether to grant a preliminary injunction.” Almontaser v. N.Y.C. Dep’t of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (internal quotation marks and citation omitted) (per curiam).
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II. Analysis A. Irreparable Harm
In the Second Circuit, a “showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations omitted). That harm must be “actual and imminent” rather than speculative. Id.
Petitioners have shown irreparable injury by establishing the risk of harm to their health and to their constitutional rights.
1. Risk of Death On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. Petition ¶ 26. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Id. ¶ 27. Merely two weeks later, there have been at least 458,927 cases identified in 172 countries and at least 20,807 people have died. Id. New York and its surrounding areas have become one of the global epicenters of the outbreak. Id. ¶ 35. Petitioners are held at detention facilities located in northern New Jersey. See id. ¶¶ 5–14. As of March 26, 2020, New Jersey has 4,407 confirmed cases of COVID-19—the second highest number of reported cases by any state after New York. Niko Kommenda and Pablo Gutierrez, Coronavirus map of the US: latest cases state by state, The Guardian (Mar. 26, 2020), https://www.theguardian.com/world/ng-interactive/2020/mar/26/coronavirus-map-of-the-uslatest-cases-state-by-state. New Jersey also has the fourth most COVID-19 related deaths in the country. Id. The three counties where the jails are located—Bergen, Essex, and Hudson counties—comprise one-third of the confirmed cases of COVID-19 in New Jersey, with Bergen County reporting 819 positive results, Essex reporting 381 positives, and Hudson 260. Petition
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¶ 36. The jails are no exceptions. Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. Id. ¶ 41. This includes two detainees and one correctional officer in the Hudson County Jail; one detainee at the Bergen County Jail; and a “superior officer” at the Essex County Jail. Id.
The nature of detention facilities makes exposure and spread of the virus particularly harmful. Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, recently submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen, and Essex County Jails, “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
Moreover, medical doctors, including two medical experts for the Department of Homeland Security, have warned of a “tinderbox scenario” as COVID-19 spreads to immigration detention centers and the resulting “imminent risk to the health and safety of immigrant detainees” and the public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/ doctors-ice-detention-coronavirus/index.html. “It will be nearly impossible to prevent widespread infections inside the Hudson, Bergen, and Essex County jails now that the virus is in the facilities because detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’” Petition ¶ 47 (internal quotation marks and citation omitted).
Petitioners face serious risks to their health in their confinement. Each has underlying illnesses, including asthma, diabetes, heart disease, hypertension, obesity, and respiratory
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problems including COPD. Id. ¶¶ 5–14. The Court takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality. People at Risk for Serious Illness from COVID-19, Centers for Disease Control (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019ncov/specific-groups/high-risk-complications.html (“Older people and people of all ages with severe underlying health conditions—like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness.”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Centers for Disease Control (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html (listing, among other medical diagnoses, “moderate to severe asthma,” “heart disease,” “obesity,” and “diabetes” as conditions that trigger higher risk of severe illness from COVID-19); see Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); Brickey v. Superintendent, Franklin Corr. Facility, No. 10 Civ. 085, 2011 WL 868148, at *2 n.3 (N.D.N.Y. Feb. 17, 2011) (taking judicial notice of the meaning and symptoms of the condition sciatica), report and recommendation adopted, 2011 WL 868087 (N.D.N.Y. Mar. 10, 2011); Lin v. Metro. Life Ins. Co., No. 07 Civ. 03218, 2010 WL 668817, at *1 (S.D.N.Y. Feb. 25, 2010) (“In its decision, the Court took judicial notice of certain medical background information about Hepatitis B.”).
A number of courts in this district and elsewhere have recognized the threat that COVID19 poses to individuals held in jails and other detention facilities. See United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a
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heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)); see also Letter from Mike McGrath, Chief Justice, Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/ 189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver=2020-0320-115517-333 (“Because of the high risk of transmittal of COVID-19, not only to prisoners within correctional facilities but staff and defense attorneys as well, we ask that you review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for nonviolent offenses. . . . Due to the confines of [correctional] facilities, it will be virtually impossible to contain the spread of the virus.”). Indeed, at least one court has ordered the release on bail of a non-citizen in immigration detention on the ground that detention conditions have been rendered unsafe by COVID-19. Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507. Addressing the situation in New Jersey specifically, the New Jersey Supreme Court has held that “reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19,” and has ordered the release of many individuals serving sentences in New Jersey
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county jails. In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020).
Courts have also recognized this health risk to be particularly acute—and of constitutional significance—for inmates who are elderly or have underlying illnesses. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk to his health the pandemic poses. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO. See Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable injury “premised . . . upon [the district court’s] finding that [plaintiff] was subject to risk of injury,
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infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services . . . certainly constitutes irreparable harm.”).
2. Constitutional Violations Second, Petitioners have also shown irreparable injury because, as discussed below, they face a violation of their constitutional rights. In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm. See, e.g., Connecticut Dep’t of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citations omitted)); Statharos v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable injury by alleging that prolonged immigration detention violated his constitutional due process rights). The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the TRO.
B. Likelihood of Success on the Merits The Court concludes that Petitioners have met their burden of showing a likelihood of success on the merits. Petitioners argue that their continued confinement in ICE detention centers where COVID-19 is present and without adequate protection for their health violates their due process rights. TRO at 8. The Court agrees.
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The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate’s “transfer while seriously ill” where that transfer posed a risk of fatal heart failure).
Immigration detainees can establish a due process violation for unconstitutional conditions of confinement by showing that a government official “knew, or should have known” of a condition that “posed an excessive risk to health,” and failed to take appropriate action. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (“Deliberate indifference . . . can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” (internal quotation marks, citation, and alterations omitted)). The risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious.2 It can no longer be denied that Petitioners, who
2 Other courts have recognized the heightened risk to detainees of contracting COVID-19. See, e.g., XochihuaJaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (unpublished) (“In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that [p]etitioner be immediately released from detention . . . .”); Stephens, 2020 WL 1295155, at *2 (ordering “conditions of 24-hour home incarceration and electronic location monitoring”); Chris Villani, Releasing ICE Detainee, Judge Says Jail No Safer Than Court, Law360, March 25, 2020 (“We are living in the midst of a coronavirus pandemic, some infected people die, not all, but some infected people die,” U.S. District
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suffer from underlying illnesses, are caught in the midst of a rapidly-unfolding public health crisis. The Supreme Court has recognized that government authorities may be deemed “deliberately indifferent to an inmate’s current health problems” where authorities “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Petitioners need not demonstrate that “they actually suffered from serious injuries” to show a due process violation. Darnell, 849 F.3d at 31; see Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to their future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted).
Respondents have exhibited, and continue to exhibit, deliberate indifference to Petitioners’ medical needs. The spread of COVID-19 is measured in a matter of a single day—not weeks, months, or years—and Respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness. At oral argument, Respondents represented that ICE and the detention facilities in which Petitioners are housed are taking certain measures to prevent the spread of the virus: screening detainees upon intake for risk factors, isolating detainees who report symptoms, conducting video court appearances with only one detainee in the room at a time, providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.
These measures are patently insufficient to protect Petitioners. At today’s hearing, Respondents could not represent that the detention facilities were in a position to allow inmates
Judge Wolf said. “Being in a jail enhances risk. Social distancing is difficult or impossible, washing hands repeatedly may be difficult. There is a genuine risk this will spread throughout the jail.”).
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to remain six feet apart from one another, as recommended by the Centers for Disease Control and Prevention (“CDC”). See How to Protect Yourself, Centers for Disease Control (Mar. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. Nor could Respondents provide the Court with any information about steps taken to protect high-risk detainees like Petitioners. And though Respondents represented that the detention facilities are below their full capacity, the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances. Confining vulnerable individuals such as Petitioners without enforcement of requisite social distancing and without specific measures to protect their delicate health “pose[s] an unreasonable risk of serious damage to [their] future health,” Phelps, 308 F.3d at 185 (internal quotation marks and citation omitted), and demonstrates deliberate indifference.
The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health.3
C. Balance of Equities and Public Interest The equities and public interest weigh heavily in Petitioners’ favor. First, Petitioners face irreparable injury—to their constitutional rights and to their health. Second, the potential harm to Respondents is limited. At today’s hearing, Respondents were unable to identify a single specific reason for Petitioners’ continued detention. And the Court finds that there is none. Petitioners’ counsel committed to ensuring the continued appearance of Petitioners at immigration hearings. And, of course, Petitioners’ failure to appear at those hearings would carry grave consequences for their respective cases. The Court finds that
3 The Court does not reach Petitioners’ additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because their current conditions of confinement are punitive. TRO at 8–9.
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those incentives are sufficient to safeguard Respondents’ interest in Petitioners’ in-person participation in future immigration court proceedings.
At oral argument, Respondents raised the fact that Petitioners Martinez and Pena are currently mandatorily detained pursuant to 18 U.S.C. § 1226(c).4 However, courts have the authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). Thus, Respondents have failed to justify Petitioners’ continued detention in unsafe conditions.
Finally, the public interest favors Petitioners’ release. Petitioners are confined for civil violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public’s interest. See Declaration of Dr. Homer Venters ¶ 12, Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID19”); Declaration of Dr. Carlos Franco-Paredes, id. at ECF No. 81-12 at 1 (“Immigration detention centers in the U.S. are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19. Given the large population density of immigration detention centers and the ease of transmission of this viral pathogen, the attack rate inside these centers will take exponential proportions, consuming significant medical and financial resources.”); Urgent action needed to prevent COVID-19 “rampaging through places of detention” – Bachelet, UNHCR (Mar. 25, 2020), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25745&LangID=e (United Nations High Commissioner for Human Rights urging that detention of people in jails
4 As represented by Petitioners’ counsel, Martinez’s § 1226(c) detention was triggered by his conviction for controlled substances trafficking in 2014, an offense for which he served no term of imprisonment. Pena’s § 1226(c) detention was triggered by misdemeanor marijuana convictions from 2002.
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“should be a measure of last resort, particularly during this crisis”). To the contrary, public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions. See, e.g., Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”).
CONCLUSION For the reasons stated above, the TRO is GRANTED. Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities are ORDERED to immediately release Petitioners today on their own recognizance without fail. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. The TRO will expire on April 9, 2020, at 6:30 p.m. No later than April 2, 2020, at 12:00 p.m., Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may file a response no later than April 7, 2020, at 12:00 p.m. SO ORDERED. Dated: March 26, 2020, at 6:30 p.m. New York, New York
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 1 of 15

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN Deputy Clerk

NOT REPORTED Court Reporter

Attorneys Present for Plaintiff(s) None Present

Attorneys Present for Defendant(s) None Present

Proceedings: IN CHAMBERS—ORDER RE PLAINTIFFS’ EX PARTE APPLICATION FOR RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION [733]

On March 26, 2020, in light of the COVID-19 public health crisis, Plaintiffs filed an Ex Parte Application for a Temporary Restraining Order (TRO) and an Order to Show Cause (OSC) why a preliminary injunction should not issue, arguing that Defendants the Office of Refugee Resettlement (“ORR”) and Immigration and Customs Enforcement (“ICE”) must promptly release or provide justification for retaining custody over eligible Class Members, and that ORR and ICE should implement the practices recommended by the United States Centers for Disease Control and Prevention (“CDC”) to avoid the spread of infection.1 [Doc. # 733.] On March 27, 2020, Defendants filed their response, and the Court held a hearing. [Doc. # 73.]

Having duly considered the parties’ written submissions and oral arguments, the Court GRANTS in part and DENIES in part the Ex Parte Application for the reasons set forth below.

I. BACKGROUND2

The Coronavirus Disease 2019 (“COVID-19”) has reached pandemic status and, without effective intervention, the CDC projects it will infect up to 200 million people and cause as many as 1.5 million deaths in the United States alone. TRO App., Ex. A (Peeler Decl.) ¶¶ 5–6 [Doc. # 733-3]. Governments and public agencies have taken extraordinary measures to attempt to curtail exponential rates of infection of this highly contagious disease, including school closures and “shelter in place” orders covering over 160 million Americans. See TRO App. at 10; TRO

1 Currently, Plaintiffs do not seek a TRO against Defendant Customs and Border Patrol (“CBP”), as those parties are close to an agreement on the relevant issues in CBP facilities. Schey Decl. ¶ 7.

2 The Court incorporates by reference the factual background of the Flores Agreement set out in Flores v. Lynch, 828 F.3d 898, 901–04 (9th Cir. 2016), and this Court’s own prior orders.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 2 of 15

App., Ex. B (Haney Decl.) ¶ 5 [Doc. # 733-4].3 With no vaccine or cure at present, and hospitals in some parts of the country already becoming overwhelmed with COVID-19 cases, medical experts urge the practice of social distancing—maintaining more than six feet between all individuals, even asymptomatic individuals—and frequent hand washing and use of hand sanitizer. Peeler Decl. ¶¶ 12–14; TRO App., Ex. C (Graves Decl.) ¶ 8 [Doc. # 733-5]; TRO App., Ex. E (Wang Decl.) ¶ 12 [Doc. # 733-7]. Officials recommend limiting gatherings of more than ten people. Wang Decl. ¶ 18.

The CDC has issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities” advising such facilities on preparation, prevention, and management measures to help reduce the risk of transmission and severity of disease from COVID-19. Defs.’ Response, Ex. L (“CDC Guidance”) [Doc. # 736-12].4

On March 19, 2020, ORR distributed the “COVID-19 Interim Guidance for ORR Programs” (“ORR Guidance”) to its contracted care facilities. TRO App., Ex. L (“ORR Guidance”) [Doc. # 773-14]. The ORR Guidance requires (1) planning and coordination with local hospitals and health departments, (2) enhanced staff and visitor screening for symptoms or COVID-19 risk, (3) identifying children with risk of COVID-19 exposure risk, (4) isolating children with symptoms or high risk if possible, and (5) releasing children from custody only once they have been medically cleared by a physician or ORR has been consulted. Id. ORR has since updated its practices regarding COVID-19, as described in more detail below. See generally Defs’ Response, Ex. A (Sualog Decl.) [Doc. # 736-1]. A CDC COVID-19 specialist has advised that “ORR’s current COVID-19 procedures are consistent with CDC guidances for congregate settings; they direct grantee care-provider facilities to implement both containment and mitigation measures. In some respects, ORR’s current COVID-19 procedures actually exceed those set forth in the CDC guidances to congregate care facilities.” Defs.’ Response, Ex. K (Cohn Decl.) ¶ 20 [Doc. # 736-11].5

3 All page references herein are to page numbers inserted by the CM/ECF system.

4 The CDC Guidance specifically refers to ICE as a covered agency but does not specifically cover the highersecurity ORR facilities or juvenile facilities. The Guidance does suggest, however, that administrators of juvenile facilities adapt the CDC Guidance to suit their needs. Id. at 4.

5 This statement compares ORR’s procedures to CDC’s guidances for long-term care facilities such as nursing homes, not to the CDC guidance for detention facilities. See CDC, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-longterm-care-facilities.html (last accessed March 28, 2020). The CDC guidance for long-term care facilities is less detailed than that for detention facilities but makes similar general recommendations. “Congregate” care refers to

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

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ICE’s Guidance on COVID-19 was last updated and reviewed on March 26, 2020, U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/covid19 (last visited March 27, 2020) (“ICE Guidance”).6 The ICE Guidance claims in general terms that it incorporates the CDC’s recommendations. ICE has suspended social visitation to its three Family Residential Centers (“FRCs”) where Class Members and their family members are held, and offered virtual legal visitation. Peeler Decl. ¶ 16; TRO App., Ex. J (Meza Decl.) ¶ 14 [Doc. # 733-12]; Defs.’ Ex. M, (Johnson Decl.) ¶¶ 21, 24 [Doc. # 736-13]. An attorney observed that as of March 23, 2020, Karnes County Residential Center (“Karnes”) appeared to be implementing some social distancing measures. Meza Decl. ¶ 38. ICE is screening visitors, testing detainees with symptoms for COVID-19, and transporting detainees who require higher levels of monitoring and care to appropriate hospitals. Johnson Decl. ¶¶ 10, 22–23. ICE is also following Pennsylvania and Texas state guidance in managing FRCs located in those states, including shutting down schools and volunteer programs that would expose residents to in-person contact. Id. ¶¶ 19, 24, 30.

As of March 26, 2020, eight program personnel or foster parents at five ORR care-provider programs located in New York, Washington, and Texas have self-reported testing positive for COVID-19. Sualog Decl. ¶ 38. There were four confirmed cases among minors in ORR care provider facilities, all in one facility in New York, and 18 minors have been tested. Id. ¶¶ 35–37. At least one child in ICE care is under quarantine, has received a COVID-19 test, and is awaiting results. TRO App., Ex. H (Cambria Decl.) ¶ 36 [Doc. # 733-10]. According to ICE, as of March 26, 2020, there are two confirmed cases of COVID-19 among ICE detainees, three confirmed cases among ICE personnel working in detention facilities, and 19 confirmed cases among ICE employees not assigned to detention facilities. See ICE Guidance.

Plaintiffs now argue that ORR’s and ICE’s response to the coronavirus pandemic violates their contractual obligations under the Flores Settlement Agreement (“FSA” or “Agreement”) and seek a TRO requiring ORR and ICE to promptly release eligible Class Members, record the agencies’ reasons for not promptly releasing Class Members, and implement the CDC’s recommendations for managing COVID-19 in detention facilities.

settings where numerous people sleep, eat, bathe, and participate in daily activities in close quarters, and by definition, is incompatible with social distancing. Wang Decl. ¶ 17; Graves Decl. ¶ 10.

6 The Court sua sponte takes judicial notice of the ICE Guidance as facts not subject to reasonable dispute and “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Campbell v. PricewaterhouseCoopers, LLP, 642 F.3d 820, 824, n. 3 (9th Cir. 2011) (citing Fed. R. Evid. 201(b)).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

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II. LEGAL STANDARD

TROs are governed by the same standard applicable to preliminary injunctions. Niu v. United States, 821 F. Supp.2d 1164, 1167 (C.D. Cal. 2011) (internal quotation omitted); see also Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A plaintiff seeking preliminary injunctive relief must show that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Toyo Tire Holdings of Ams. Inc. v. Cont’l Tire N. Am., Inc., 609 F.3d 975, 982 (9th Cir. 2010) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). An injunction is also appropriate when a plaintiff raises “serious questions going to the merits,” demonstrates that “the balance of hardships tips sharply in [their] favor,” and “shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)). In the Ninth Circuit, the four “elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Id. at 1131.

III. DISCUSSION

A. Likelihood of success on the merits

Plaintiffs argue that they have shown likelihood of success on the merits of their claims that ORR and ICE have failed to comply with their obligations under the FSA to “release a minor from its custody without unnecessary delay” and “make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor,” as well as their obligation to keep Class Members “in facilities that are safe and sanitary and that are consistent with [their] concern for the particular vulnerability of minors.” Flores Agreement ¶¶ 12, 14, 18 [Doc. # 101]. To protect Class Members’ rights under the Agreement, Plaintiffs seek (1) the prompt release of minors who are neither a flight risk nor a danger and minors who have a suitable custodian, as well as placement of minors in non-congregate settings if possible and up-to-date reporting on the justifications for keeping minors in custody, and (2) ORR and ICE’s prompt implementation of public health strategies recommended by the CDC to protect people that remain in congregate settings in detention. Plaintiffs also seek enforcement of the Flores Agreement’s provision requiring that Defendants make and record their continuous efforts toward releasing individual Class Members.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 5 of 15

It is beyond dispute at this point in this litigation that the FSA is a consent decree that is construed as a contract. See, e.g., Flores v. Sessions, 862 F.3d 863, 874 (9th Cir. 2017); Order re Pls.’ Mot. to Enforce at 3 [Doc. # 177]; Order re Pls.’ Mot. to Enforce & Appoint a Special Monitor at 2–4 [Doc. # 363]. The Court incorporates the legal standards that it articulated in its July 24, 2015 Order and June 27, 2017 Order and need not repeat them here. [Doc. ## 177, 363.]

For the reasons stated below, the Court finds that Plaintiffs have shown serious questions as to the merits of their claim that ICE has breached the FSA with regard to the provision of safe and sanitary conditions and appropriate medical care and living accommodations in the context of the COVID-19 outbreak. The Court further finds that Plaintiffs have a strong likelihood of succeeding on their claim that both ICE and ORR have breached the FSA in their failure to release minors to suitable custodians in a prompt manner and to record their continuous efforts towards minors’ release.

1. Safe and sanitary conditions and appropriate medical care

The Court has previously held, with regard to CBP temporary facilities, that the Agreement’s requirement for safe and sanitary conditions covers an array of basic hygiene and health needs such as soap, toothbrushes, regulated temperatures, and conditions in which Class Members can sleep. See Flores v. Sessions, 394 F. Supp. 3d 1041, 1057, 1059, 1061 (C.D. Cal. 2017); see also Flores v. Barr, 934 F.3d 910, 916 (9th Cir. 2019) (“We note that, as the district court properly understood, assuring ‘safe and sanitary’ conditions includes protecting children from developing short- or long-term illnesses as well as protecting them from accidental or intentional injury.”). In addition to requiring safe and sanitary conditions with the particular vulnerabilities of minors in mind, Exhibit 1 to the FSA also specifies that minors detained in licensed programs shall receive, inter alia, “suitable living accommodations, . . . [a]ppropriate routine medical . . . care, . . . emergency health care services, . . . screening for infectious [disease] within 48 hours of admission . . . [and] immunizations in accordance with the U.S. Public Health Service (PHS), Center for Disease Control.” Settlement Exhibit 1, ¶ A.1. There is no dispute that ORR care facilities and ICE FRCs are covered by Exhibit 1.7

7 Defendants argue that Paragraph 12 of the FSA, which provides for the requirement that “[f]ollowing arrest, the INS shall hold minors in facilities that are safe and sanitary,” does not apply to ORR’s care facilities, which are licensed facilities designed for longer-term custody of Class Members, or to the one ICE FRC that is state-licensed. Defs.’ Response at 25. The Court need not decide at this time whether Paragraph 12 also applies to ORR facilities and one of the three ICE FRCs because those issues have not been fully addressed in a prior motion, and the Court need not address it in order to resolve the TRO. Moreover, there can be no dispute that other provisions of the FSA speak to the need to protect detained minors’ safety and well-being. See, e.g., Flores Agreement ¶¶ 11, 14.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 6 of 15

Medical experts fear the exceptionally rapid transmission of COVID-19 in detention facilities, where medical resources such as physicians, testing kits, and protective equipment are constrained; people are unable to practice social distancing; shared facilities are not frequently or properly sanitized; soap and hand sanitizer are not provided or easily accessible to detainees; quarantine or isolation units are scarce; and there are frequent opportunities for an infected person to enter or leave the facility. See, e.g., Peeler Decl. ¶¶ 19–25; Haney Decl. ¶¶ 7–11; TRO App., Ex. D (Meyer Decl.) ¶¶ 8–15. For migrant children in detention, who are already more likely to have mental health concerns or may be separated from their family members, the trauma of undergoing solitary quarantine for the virus or simply not receiving adequate information about the potential for infection is likely to exacerbate existing mental health concerns. Peeler Decl. ¶¶ 26-27; Haney Decl. ¶¶ 12–13; TRO App., Ex. F (Zein Decl.) at 2–3 [Doc. # 733-8]. Furthermore, a high concentration of sick children, family members, and/or staff members in one community may overwhelm already strained local health care resources, particularly in the rural communities where many ICE and ORR facilities are located. Peeler Decl. ¶ 28. Examples from prior epidemics and recent prison outbreaks of COVID-19 confirm these medical experts’ fears. Peeler Decl. ¶¶ 30–31, 33. And, although children thus far appear less susceptible to COVID-19 than adults, they may still carry and transmit the coronavirus, and common health concerns affecting many Class Members, such as asthma, malnutrition, and immunosuppression, may make them more susceptible to serious forms of the disease. Peeler Decl. ¶ 8; Graves Decl. ¶ 11. Accordingly, experts recommend reducing the size of the population within detention facilities to permit children to be in the custody of family sponsors or to be released with their families and thereby lessen the resource constraints and likelihood of overwhelming contagion in the lesscrowded facilities. Peeler Decl. ¶¶ 35–41; Graves Decl. ¶¶ 27–32; TRO App. Ex. G (Letter to Congress) [Doc. # 733-9]. 8

ORR has submitted evidence that the Chief Medical Officer of the CDC’s National Center for Immunizations and Respiratory Diseases, who is also Deputy Incident Manager for the CDC COVID-19 response, approves of ORR’s current COVID-19 procedures as consistent with CDC guidances for congregate settings, and stated that “[i]n some respects, ORR’s current COVID-19 procedures actually exceed those set forth in the CDC guidances to congregate care facilities.” Cohn Decl. ¶¶ 20–21. ORR also responds that it now: (1) has stopped placements in New York, California, and Washington (states with significant coronavirus outbreaks); (2) has limited air travel to local placements; (3) requires all care providers to conduct temperature checks for every Class Member in its care twice each day; (4) elevates all medical cases with flu-like symptoms;

8 Defendants’ objections to these physicians’ opinions are OVERRULED, to the extent that the Court finds the opinions reliable and based on expertise and personal knowledge. The Court gives only some weight to these opinions insofar as they are not based upon personal knowledge of ORR and ICE detention facilities. See Defs.’ Response at 41–43.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

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(5) maintains medically appropriate isolate capabilities at all of its shelters; (6) restricts access to all visitors who display either an elevated temperature or flu-like symptoms; (7) provides testing if recommended by medical personnel, (8) has full-time medical staff on site, and (9) isolates anyone who either tests positive or is suspected of exposure to the COVID-19 virus. See Sualog Decl. ¶¶ 17–34.

Though ORR apparently still fails to address recommendations related to social distancing, personal hygiene, or personal protective equipment, among others, these updates in policy in response to a rapidly developing situation indicate that ORR is working to provide safe accommodations and medical care to Class Members in its custody. Furthermore, overcrowding at ORR facilities does not appear to be an issue, as ORR’s care-provider facilities are operating significantly below their maximum capacity and historical highs. See Sualog Decl. ¶ 13. According to declarations submitted by plaintiffs in support of a request for a TRO in a related case, Lucas R. v. Azar, CV 18-05741 DMG (PLAx) (C.D. Cal.) [Doc. # 227],9 attorneys working in ORR facilities for unaccompanied minors assert that each of the facilities in which they work is at half or three-quarters capacity, although children and staff continue to spend their time in close physical proximity. Lucas R. TRO App., Ex. F (Enriquez Decl.) ¶ 6 [Doc. # 227-8]; id., Ex. G (Flamm Decl.) ¶ 5 [Doc # 227-9]; id., Ex. H (Rutter Decl.) ¶ 3 [Doc. # 227-10]. Recent CDC orders prohibiting the entrance of unaccompanied children into the United States will also likely decrease ORR’s custodial population. Cohn Decl. ¶ 23.

Though the Court recognizes that the limited facts before it do not describe the conditions at all of ORR’s 107 diverse facilities nationwide, the parties have presented sufficient information for the Court to conclude at this time that ORR appears to be in substantial compliance with its FSA obligations to implement CDC-compliant guidelines and to provide adequate routine medical care and adequate living accommodations.
Accordingly, Plaintiffs have not shown a likelihood of success on the merits as to this part of their claim against ORR.
By contrast, the ICE Guidance appears deficient. The ICE Guidance asserts that it was updated on March 26, 2020 and that ICE implements CDC recommendations, but the section on its website about how it is specifically addressing conditions in detention has not been updated since March 15, 2020, and does not mention social distancing, increased personal hygiene, or increased testing and medical care. See ICE Guidance. Nor does the ICE Guidance recognize the

9 At the hearing, the parties stipulated to the Court’s use of declarations submitted in support of and in opposition to the Lucas R. TRO application in the disposition of this related TRO application, subject to evidentiary objections.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

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potential psychological harm of quarantining or isolating children for the duration of this pandemic.

Recent observations of ICE family residential centers (“FRCs”) show uneven implementation of the recommended public health measures. An attorney at Karnes noted that as of March 23, 2020, the facility was attempting to implement social distancing measures such as limiting groups to 10 or fewer people, school closure, and meal delivery. Meza Decl. ¶ 38. But attorneys working in Berks County Residential Facility (“Berks”) and South Texas FRC in Dilley, Texas (“Dilley”), personally observed that children, family members, and staff continue to spend the vast majority of their time in close physical proximity, and reports from detained minors and their family members indicate that large proportions of them have conditions that render them vulnerable to COVID-19 and/or already show symptoms associated with COVID-19 and that they lack information about COVID-19, access to hand sanitizer, cleaning supplies, personal protective equipment, and medical care. See, e.g., App., Ex. I (Fluharty Decl.) ¶¶ 12-14, 16-17, 19, 23–33 [Doc. # 733-11]; Cambria Decl. ¶¶ 10, 29–35.10

ICE responds that, with the pandemic response evolving rapidly in all sectors, it has also updated its response. Now, it asserts that Berks, Dilley, and Karnes are implementing the public health measures that Plaintiffs requested in their TRO application. In summary, as of March 27, 2020, the FRCs are increasing the availability of hand sanitizers and soap and adding new sanitizing stations throughout the FRCs; conducting more frequent cleaning and deep cleaning in areas where residents congregate; suspended school and educational programs per statewide orders in Pennsylvania and Texas; employing extra screening measures; employing staggered or “satellite” meals to ensure greater social distancing at mealtime; limiting gatherings to small groups in common areas; encouraging families to stay in their own residential areas; and coordinating telephonic legal representation. Johnson Decl. ¶¶ 16, 18–22, 24, 27–29.

Though laggardly in its early response, as of two days ago ICE appears to have announced its implementation of CDC guidance during the COVID-19 outbreak. Given the current state of the evidence and ICE’s only recent promulgation of some CDC recommendations in its FRCs, the Court finds that Plaintiffs have raised serious questions as to the merits of their claim that ICE is not compliant with its FSA obligations in the context of the COVID-19 outbreak.

10 Defendants’ objections to Fluharty’s, Meza’s, and Cambria’s declarations are OVERRULED, to the extent that the Court relies on the attorneys’ personal observations. Considering the difficulty of obtaining non-hearsay testimony from detainees even without the physical constraints of this pandemic and lack of any other evidence regarding on-the-ground conditions in the FRCs, the Court accords appropriate weight to hearsay observations by Class Members and their families. See Defs.’ Response at 39–41.

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CaCsaes2e::815:-2c0v--c0v4-504241-3D4MDGo-cAuGmRentD#o: c6u4m-6eFnitle7d4:004F/1il9e/d2003P/2a8g/e2025 Pofa3g1e P9aogfe1I5D #P:1a8g9e5ID #:34493

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 9 of 15

Considering the Court’s past orders, the exigencies of the circumstances, COVID-19’s highly contagious nature, and the imminence of the threat, the Court invokes its authority, as described in the October 5, 2018 Order Appointing Special Master/Independent Monitor [Doc. # 494], to require heightened inspections of ICE facilities and, to a more limited extent, ORR facilities to ensure the existence of safe and sanitary conditions. See October 5, 2018 Order at ¶¶ A, B.

2. Release without unnecessary delay and recording efforts toward release

In 2019, children in ORR custody remained in that agency’s care for an average of 66 days.11 Office of Refugee Resettlement, Facts and Data: Length of Care, https://www.acf.hhs.gov/orr/about/ucs/facts-and-data (last visited March 27, 2020). In addition to its obligations under the Flores Agreement, ORR is tasked by the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”) to ensure that any sponsor is “capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A). This Court has previously found that some of ORR’s policies, even if they result in delays in releasing minors to adult custodians, “appear to be reasonably calculated to protect Class Members from ‘harm or neglect’ and to ensure that they have an adequate ‘standard of care.’” Flores v. Sessions, No. CV 85-4544-DMG (AGRx), 2018 WL 10162328, at *18 (C.D. Cal. July 30, 2018) (quoting Agreement at ¶¶ 11, 17). But the change in factual circumstances now requires a reexamination of whether ORR’s continued custody of children in congregate settings meets the Agreement’s requirement that Class Members be released without unnecessary delay.

As of March 13, 2020, ORR had 3,622 minors in custody, 1,193 of whom were in congregate settings after having been detained for 30 days or more. TRO App., Schey Decl. ¶ 3 [Doc # 733-2]. According to fairly recent data provided by Defendants to Plaintiffs and subsequently analyzed the Dr. Nancy Wang, Professor of Emergency Medicine at Stanford University Medical Center, as of December 31, 2019, of the 4,562 minors still in custody at that time, nearly half of them had been in custody for less than 20 days, but 11.6 percent had been in custody for 31-60 days and—incredibly—11.7 percent had been in custody for six months to one year. TRO App., Ex. P (ORR Data) at 9, 21 [Doc. # 738]. ORR’s data do not indicate why the agency failed to release these minors or how many of them have sponsors.12 According to the

11 The Court takes judicial notice of the cited ORR website.

12 Although Dr. Wang’s analysis and data from 2018 indicates that the vast majority of children in ORR’s care had close family members available as custodians, neither party has provided more updated information about the availability of custodians for ORR’s current care population. See Schey Decl. ¶ 9; Defs.’ Response at 21; ORR Data at 12.

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CaCseas2e:8: 51-:2cv0--0c4v-504241-3D4MDGo-cAuGmRenDt #o:c6u4m-6enFtil7e4d0: 04F/i1le9d/2003P/2a8g/2e026Poafg3e11P0aogfe1ID5 #:P1a8g9e6 ID #:34494

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 10 of 15

Dilley Pro Bono Project’s records of Dilley residents, as of March 25, 2020, at least 22 minors have been detained more than 160 days, 10 have been detained for over 200 days, seven have been detained for more than 220 days, and one has been detained for 229 days. Fluharty Decl. ¶ 50. ORR’s apparent failure to “make and record the prompt and continuous efforts on its part toward . . . the release of the minor” makes it more difficult to ascertain how many of the minors’ releases to suitable custodians have been delayed without good reason. Agreement at ¶ 18; see also Flores v. Sessions, 2018 WL 10162328, at *21 (finding that the Agreement requires individualized assessments of whether a sponsor is a fit custodian and that requiring the ORR director’s approval of certain Class Members’ release violated the Agreement). Accordingly, though ORR may have justifications under the TVPRA for delaying release, Plaintiffs have raised serious questions going to the merits of their claim that ORR is in violation of the FSA’s recording requirement.

As for ICE, the agency explains that its decisions to release class members depend on various factors, including the applicable detention authority, the status of any removal, credible fear, or reasonable fear proceedings, judicial or administrative stays, and humanitarian factors. Defs.’ Response at 23–24. Those decisions may be complicated by the fact that the FSA does not contain any affirmative right of release for adults in immigration detention with their children. Flores v. Lynch, 828 F.3d 898, 909 (9th Cir. 2016). But the Court reminds Defendants—yet again—that “hold[ing] minors in indefinite detention in unlicensed facilities, . . . constitute[s] a fundamental and material breach of the parties’ Agreement.” Flores v. Sessions, No. CV 85-4544DMG (AGRx), 2018 WL 4945000, at *2 (C.D. Cal. July 9, 2018). ICE therefore must still comply with the Agreement’s requirement to release minors without unnecessary delay and “make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor.” Agreement ¶¶ 12, 14. And,

[t]o be clear, the Court will not dictate how Defendants must exercise their discretion to parole or release minors in every single case—instead, the Court will order Defendants to comply with the unambiguous charge of the Flores Agreement to make individualized determinations regarding a minor’s flight risk rather than blanket determinations.

Flores v. Sessions, 394 F. Supp. 3d 1041, 1067 (C.D. Cal. 2017).

Plaintiffs have provided evidence to indicate that ICE does not undertake or record any efforts aimed at the release of minors as required by Paragraphs 14 and 18 of the Agreement. Schey Decl. ¶ 7; Cambria Decl. ¶ 39; Fluharty Decl. ¶ 38–40; Meza Decl. ¶¶ 10, 43. According to a preliminary review of the most recent data provided by ICE to Plaintiffs, in February 2020, about 3,359 class members were detained in ICE family detention facilities. Schey Decl. ¶¶ 2,4.

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CaCseas2e:8: 51-:2cv0--0c4v-504241-3D4MDGo-cAuGmRenDt #o:c6u4m-6enFtil7e4d0: 04F/i1le9d/2003P/2a8g/2e027Poafg3e11P1aogfe1ID5 #:P1a8g9e7 ID #:34495

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 11 of 15

More than half of those class members—1,861—have been detained for three months or longer. Of those class members, two were apprehended in 2014, four were apprehended in 2018, dozens have been detained for between ten to twelve months, and hundreds have been in custody for four months or more. Id. at ¶ 4. Though Defendants argue that these numbers are inaccurate, they are unable to provide any evidence of more accurate numbers within the time frame necessary to resolve this TRO application. Defs’ Response at 23. Without any contrary data, the Court finds that Plaintiffs have shown a strong likelihood of success on their claim that ICE has not undertaken or recorded efforts to promptly release the Class Members in its custody.

Defendants argue that the data Plaintiffs request from ICE is already covered by the Court’s October 5, 2018 Order Appointing Special Master/Independent Monitor, [Doc. # 494]. The Monitor is, inter alia, tasked with monitoring ICE’s compliance with the Court’s June 27, 2017 Order [Doc. # 363], which found that ICE violated Paragraphs 14 and 18 of the FSA by failing to make and record continuous efforts to release Class Members and place them in non-secure, licensed facilities. See Order Appointing Special Master/Independent Monitor at 4–5 [Doc. # 494]. In fact, the Monitor is also tasked with monitoring ORR’s compliance with the Court’s July 30, 2018 Order [Doc. # 470], in which the Court found ORR unnecessarily delayed the release of Class Members to custodians in violation of Paragraph 14 and 18 of the FSA. Id. at 5. The Monitor thus already has the authority to request “database” information for all Class Members, including the “dates, locations, and reasons for all transfers of Class Members” and, if the Class Member was not transferred to a licensed facility or released within 20 days, the reason why. Id. at ¶ B.1.c.i. On top of the information already within the Monitor’s purview, however, Plaintiffs also request some information about what efforts ICE and ORR are making to ensure Class Members’ prompt release and why each Class Member is remaining in custody. This global pandemic appears to be the type of emergency in which the Court may waive the time periods for the dispute resolution procedure set forth in the Order Appointing the Special Master/Independent Monitor. Id. at 24.

Because COVID-19 poses unprecedented threats to the safety of Class Members and all who come in contact with them, including ORR and ICE staff, healthcare providers, and local populations, the Court finds that any unexplained delay in releasing a child in ORR and ICE custody violates of Paragraphs 14 and 18 of the FSA, which require the agencies to release Class Members in their custody without unnecessary delay and make and record efforts to release the Class Members. This finding is bolstered by the Court’s longstanding orders construing and mandating compliance with paragraphs 14 and 18 due to past violations. See July 24, 2015 Order [Doc. # 177]; June 27, 2017 Order [Doc. # 363]; July 30, 2018 Order [Doc. # 470]. Accordingly, Plaintiffs have established a strong likelihood of success as to the merits of this part of their claim.

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CaCseas2e:8: 51-:2cv0--0c4v-504241-3D4MDGo-cAuGmRenDt #o:c6u4m-6enFtil7e4d0: 04F/i1le9d/2003P/2a8g/2e028Poafg3e11P2aogfe1ID5 #:P1a8g9e8 ID #:34496

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 12 of 15

B. Irreparable harm, public interest, and balance of the equities

Based on the foregoing discussion of the near-certainty of the rapid spread of COVID-19 in ICE and ORR facilities, even if ORR and ICE take more urgent preventative measures, Plaintiffs have demonstrated that “they themselves are likely to suffer irreparable harm absent an injunction” that may aid in securing their release. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 822 (9th Cir. 2018); see also Unknown Parties v. Johnson, No. CV-15-00250-TUC (DCBx), 2016 WL 8188563, at *15 (D. Ariz. No. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (finding irreparable harm where the evidence demonstrated “medical risks associated with . . . being exposed to communicable diseases”). As Plaintiffs’ counsel noted at the hearing, having information about delays in Class Members’ release from ORR and ICE custody can help expedite their release from congregate settings that medical experts agree are hotbeds for contagion.

The severity of the harm to which Plaintiffs are exposed and the public’s interest in preventing outbreaks of COVID-19 among families and children in ICE or ORR custody that will infect ICE and ORR staff, spread to others in geographic proximity, and likely overwhelm local healthcare systems tips the balance of equities sharply in Plaintiffs’ favor. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009). Any countervailing financial and administrative concerns do not outweigh public health and safety in the midst of pandemic, particularly given the limited scope of the temporary relief that the Court will grant. See Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (“Faced with such a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)).

The Court agrees with Defendants, however, that the interests of all parties and the public are not well served at this time by rushing to release minors en masse in the midst of the current travel restrictions or to release them to potentially unfit custodians based on limited information, particularly given the possibility of contagion via public transportation, or introducing healthy children to homes where they could be at a higher risk of infection. See Cohn Decl. ¶ 22; Sualog Decl. ¶¶ 42–44.13 Furthermore, given the individualized circumstances of each family and each unaccompanied minor’s potential sponsor, the Court does not find that ordering ORR and ICE to immediately release hundreds or even thousands of minors is appropriate on a class-wide basis.

13 The Court is aware that some experts believe that release is safer for children than congregate care. See, e.g., Lucas R. TRO App., Supplemental Declaration of Julie DeAun Graves [Doc. # 231-3]. While that may be true as a general matter and therefore supports the FSA’s general policy favoring release, the Court is also aware that in the real world not all “homes” are equal. Defendants must promptly fulfill their duty under both the FSA and the TVPRA to make determinations of suitable placement.

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CaCseas2e:8: 51-:2cv0--0c4v-504241-3D4MDGo-cAuGmRenDt #o:c6u4m-6enFtil7e4d0: 04F/i1le9d/2003P/2a8g/2e029Poafg3e11P3aogfe1ID5 #:P1a8g9e9 ID #:34497

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 13 of 15

Based on the comments of Plaintiffs’ counsel at the hearing, it appears that Plaintiffs also agree that an orderly, yet prompt, disposition of minors’ claims of suitable placement is a responsible way to proceed.

Pursuant to the clear terms of the FSA and the Court’s prior Orders, ORR and ICE are already obligated to release Class Members without unnecessary delay. Accordingly, the balance of equities still weighs in favor of granting Plaintiffs interim relief. While the Court will not order immediate release of minors on a class-wide basis, the Court will order ORR and ICE to show cause why they should not be held to answer for unexplained delays in releasing eligible Class Members.14

Thus, paying “particular regard [to] the public consequences in employing the extraordinary remedy of injunction,” the Court finds that Plaintiffs have met their burden to show entitlement to temporary injunctive relief, as delineated below, due to the exigencies of the COVID-19 pandemic. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).

C. Bond
Rule 65(c) permits a court to grant preliminary injunctive relief “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Notwithstanding its seemingly mandatory language, “Rule 65(c) invests the district court with discretion as to the amount of security required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (internal quotation marks omitted).
Based on the record before it and the composition of the class, the Court waives the bond requirement.

IV. CONCLUSION

In light of the foregoing, Plaintiffs’ TRO Application is GRANTED in part as follows:

1. Defendants are hereby ORDERED to SHOW CAUSE by April 10, 2020 at 10:00 a.m. why a preliminary injunction should not issue (1) requiring Defendants to make and record

14 ORR has already submitted some information that may explain delays in the release of some Class Members, such as the coronavirus-related closure of fingerprinting sites that are key to completing TVPRA-required background checks. See, e.g., Sualog Decl. ¶ 48.

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CaCseas2e:8: 51-:2cv0--0c4v-504241-3D4MDGo-cAuGmRenDt #o:c6u4m-6enFtil7e4d0: 04F/i1le9d/2003P/2a8g/2e030Poafg3e11P4aogfe1ID5 #:P1a9g0e0 ID #:34498

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 14 of 15

continuous efforts to release class members; (2) enjoining Defendants from keeping minors who have suitable custodians in congregate custody due to ORR’s unexplained failure to promptly release these minors to suitable sponsors under the TVPRA; and (3) enjoining Defendants from keeping minors who have suitable custodians in congregate custody due to ICE’s unexplained failure to release these minors within 20 days, especially given the emergent circumstances and the Court’s prior orders requiring the same (see, e.g., July 24, 2015 Order [Doc. # 177], June 27, 2017 Order [Doc. # 363], July 9, 2018 Order [Doc. # 455], July 30, 2018 Order [Doc. # 470]).

2. Pending the OSC hearing, IT IS HEREBY FURTHER ORDERED as follows:

a. ORR and ICE facilities shall make themselves available to the Juvenile Coordinators for inspection.15 By no later than April 9, 2020, the Juvenile Coordinators overseeing ICE and ORR facilities shall provide the Court and the Special Monitor with a report regarding whether their facilities are at, above, or below capacity levels (with specific numbers) and the status of implementation of CDC-compliant guidances. The Juvenile Coordinators shall also videotape living conditions at any facility chosen by the Special Monitor and/or her expert consultant for review, as well as provide any requested information on what guidance protocols are being followed there.

b. For the purposes of litigating Plaintiffs’ request for injunctive relief, by April 6, 2020, ORR and ICE shall provide to the Monitor, Class Counsel, and the Court the information listed in the Order Appointing Special Master/Independent Monitor, at B.1.c.i(i)-(x), as well as a brief summary of efforts toward family reunification or release of the detained Class Member. [Doc. # 494.] To the extent this information implicates privacy concerns, it may be filed under seal.

i. For the purposes of this evidentiary snapshot, the Court requires the requested data only for Class Members being held in ICE custody in any FRC, and ORR facilities located in States that have 3000 or more confirmed cases of COVID-19 as of the date of this Order: California, Illinois, Louisiana, Massachusetts, Michigan, New Jersey, New York, and Washington. To the extent possible, ORR should endeavor to provide the requested information for all Class Members in their custody.

15 While physical inspection is preferred, given current guidelines regarding COVID-19 prevention, an inspection via videoconferencing technology is also acceptable.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 85-4544-DMG (AGRx)

Date March 28, 2020

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Page 15 of 15

c. ORR and ICE shall make every effort to promptly and safely release Class Members in accordance with Paragraphs 14 and 18 of the FSA and the Court’s prior orders (see, e.g., July 24, 2015 Order [Doc. # 177], June 27, 2017 Order [Doc. # 363], July 9, 2018 Order [Doc. # 455], July 30, 2018 Order [Doc. # 470]).

3. Plaintiffs must serve this Order on Defendants no later than March 30, 2020 (or file Defendants’ Voluntary Notice of Acknowledgment of Service), and Plaintiffs shall file a proof of service immediately after effecting service. Defendants shall file their supplemental Opposition, if any, to Plaintiffs’ request for a preliminary injunction by noon on April 6, 2020, and Plaintiffs shall file and serve a Reply, if any, by noon on April 8, 2020. The videoconference hearing on the OSC re preliminary injunction shall be on April 10, 2020 at 10:00 a.m. By no earlier than April 6, 2020, counsel shall contact the courtroom deputy clerk at dmg_chambers@cacd.uscourts.gov to receive the videoconference link.

4. If, at any time before the Court’s ruling, the parties stipulate to any form of interim relief, they shall immediately inform the Court of that development.

IT IS SO ORDERED.

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Case: 1:20-cv-02134 Document #: 64-7 Filed: 04/19/20 Page 1 of 11 PageID #:1902
GROUP EXHIBIT F

Case: C1:a2s0e-c1v:-2002-1c3v4-1D06o1c7u-mWeGntY#: D64o-c7umFielendt:4044/1F9il/e2d0 0P4a/g0e4/220of 1P1agPeag1eoIDf 4#:1903

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent. )

___________________________________)

CIVIL ACTION NO. 20-cv-10617-WGY

YOUNG, D.J.

April 4, 2020

ORDER

As set forth at the hearing on April 3, 2020, it is hereby

Ordered:

1. Upon release by respondent of Hayk Khachatyan, Kokou

Aziabo, Srikalathan Rohan, Firdavs Salakhidinov, Ruben

Poghosyan, and Marcio De Sauza, the petition with respect these

individuals is MOOT.

2. The Court grants bail to Henry Urbina Rivas, Robson

Maria-De Oliveira, and Jervis Vernon pending resolution of the

habeas corpus petition, upon all bail conditions deemed

appropriate and imposed by ICE, and the following additional

terms and conditions as to each of them: (a) release only to an

acceptable custodian; (b) such custodian will pick the releasee

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up outside the facility by car; (c) releasee will be taken from the facility to the place of residence previously identified to ICE (ICE shall notify the state and local law enforcement authorities about their presence and thee details of their bail status); (d) releasees are to be fully quarantined for 14 days from date leaving facility to the residence; (e) during and after the 14-day quarantine, releasees will remain under house arrest, without electronic monitoring, and shall not to leave the residence for any reason save to attend immigration proceedings or attend to their own medical needs should those needs be so severe that they have to go to a doctor’s office or hospital (in which case they shall notify ICE as soon as practicable of their medical necessity); (f) releasees are not to be arrested by ICE officers unless: (i) upon probable cause a warrant is issued by a United States Magistrate Judge or United States District Judge that they have violated any terms of their bail, or (ii) there is a final order of removal making them presently removable from the United States within two weeks. The Court may, sua sponte or on motion of the parties, modify or revoke the bail provided herein.
3. Bail is DENIED without prejudice to Mohamad Bassyouni subject to resubmission by petitioners' counsel of a more detailed request.
[2]

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4. The Court continues its consideration of bail for Gerson McGlashin. Respondent shall by the 5:00 p.m. April 6, 2020, provide a detailed explanation to the Court of how ICE intends to execute the final removal order within the next two weeks.
5. The Court continues its consideration of bail for Jesse Maina. Petitioner shall by Friday, April 10, 2020 provide the Court with a detailed plan of where he would reside, with whom, and who would be the custodian.
6. The parties shall by 4:00 pm, Saturday, April 4, 2020, submit, a single list (if possible) of 50 detainee names without regard to groupings previously identified by the Court. If no list is provided, or multiple lists are provided, then the Court will select its own list by 4:00 pm on Sunday, April 5, 2020. The Court proposes, if possible, to review ten petitions for bail per day beginning Tuesday, April 7, 2020, and continuing Wednesday, Thursday, Friday and Monday of the following week. As soon as practicable before each hearing date, the Court requests the parties submit briefing as to each detainee’s circumstances relevant to the Court’s bail determination.
7. The proposed stipulated Protective Order (ECF No. 39-1) is adopted as submitted. All parties are bound by the protective order, including the parties in the related matter.
[3]

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8. Counsel for Darcy McMenamin and Gerardo Portillo shall by 12:00 noon on Monday April 6, 2020 notify the Court of their response to the respondent’s counsel’s proposal in the related action and whether that matter is resolved.
9. The 48-hour notification order issued in this action (ECF No. 22) does not apply to those voluntarily released by respondent in paragraph 1, supra, as the petition is moot as to those individuals, but it remains in effect as to those individuals granted bail by this Court and all other class members.

SO ORDERED.

__/s/ William G. Young__ WILLIAM G. YOUNG DISTRICT JUDGE

[4]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. STEVEN SOUZA
Respondent-Defendant.

Case No. 1:20-cv-10617-WGY

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION With the agreement of the Parties, the Court having determined that there is good cause for issuance of a protective order to govern the disclosure, use, and handling by the Parties and their respective agents, successors, personal representatives and assignees of certain information in the above-captioned action, IT IS HEREBY ORDERED as follows: 1. Private medical information produced by either Party during informal discovery or otherwise made available for the litigation will not be disseminated beyond the Counsel (including outside counsel) for the Parties, as defined to include associated personnel necessary to assist counsel in this Action, such as law student interns working under the supervision of counsel of record in this matter, litigation assistants, paralegals, and litigation support, information technology, information or records management, investigative, secretarial, or clerical personnel. 2. Such private medical information may be disclosed to experts or consultants for the Parties, provided the attorney of record first informs the expert that such information to be disclosed is confidential and to be used solely for the purpose of this litigation and further that
1

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these restrictions are imposed by a court order. 3. The Parties will redact all private medical information in any publicly-available
filings submitted to the Court.

Dated: April 4, 2020

_ /_s_/_W__il_li_a_m__G_._Y__o_u_n_g_______________ WILLIAM J. YOUNG UNITED STATES DISTRICT JUDGE

2

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent. )

___________________________________)

CIVIL ACTION NO. 20-cv-10617-WGY

YOUNG, D.J.

April 10, 2020

ORDER

The order of submission of briefs on individual

applications for bail is as follows:

Tuesday, April 14, 2020, 9:00 a.m.
1. Tarax-Villeda, Brayan 2. Soe, Aaron 3. Alvarez-Silva, Oscar 4. Gomes, Nuelson 5. Maney Lal, Neved Bai 6. De Carvalho, Janito 7. Vero Campoverde, Sandro 8. Ohenhen, Augustine 9. Dodieu, Woodly 10. Mullings, Terrano

Case: C1:a2s0e-c1v:-2002-1c3v4-1D06o1c7u-mWeGntY#: D64o-c7umFielendt:7074/1F9il/e2d0 0P4a/g1e0/920of 1P1agPeag2eoIDf 3#:1910
Wednesday, April 15, 2020, 9:00 a.m.:
1. Gomes, Marcio 2. Miranda-Castillo, Luis 3. Kirkpatrick, Kevin 4. Monteiro, Alessandro 5. Santos-Cabrera, Melchor 6. Velasquez-Hernandez, Oscar 7. Lima, Jucinei 8. Sanchez, Juan 9. Dias, Amiry
Thursday, April 16, 2020, 9:00 a.m.:
1. Hassan, Ahmed 2. Tejada-Alarcon, Eduardo 3. Castaneda-Lomeli, Juan 4. Guallan-Tixi, Diego 5. Perdomo Vizcaino, Rafael 6. Ali, Liban 7. Shaban, Hamzah 8. Tabia, Guillaum 9. Villalta-Cruz, Edwin 10. Rojas Vargas, Karina
Friday, April 17, 2020, 9:00 a.m.:
1. Guerra Nolasco, Marco 2. Darocha, Edlander 3. Armijos, Segundo 4. Mateo Mateo, Melvin 5. Miranda-Tapia, German Oliverio 6. Taylor, Rayon 7. Lux-Quinilla, Carlos 8. Gonzalez Victorio, Abelardo 9. Doe, Isaac 10. Jijon Mora, Felix
[2]

Case: 1C:2a0s-ecv1-:02201-c3v4-1D0o6c1u7m-WenGtY#: 6D4o-7cuFmileedn:t 0747/19F/il2e0dP0a4g/1e01/200of P1a1gPea3geoIfD3#:1911
Monday, April 20, 2020, 9:00 a.m.: 1. Smith, Cordel 2. Valentim, Lucas 3. Bonilla Garcia, Darwin Mauricio 4. Da Graca, Aires 5. Hernandez-Andino, Oscar 6. Leach, Damion 7. Lopez Rodriguez, Geremias 8. Williams, Keith 9. Ixcoy-Hernandez, Santos 10. Laul, Garang
SO ORDERED. _/s/ William G. Young WILLIAM G. YOUNG DISTRICT JUDGE
[3]

Case: 1:20-cv-02134 Document #: 64-7 Filed: 04/19/20 Page 11 of 11 PageID #:1912
Screenshots pulled from PACER.gov on April 19, 2020
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:20-cv-10617-WGY

 
 Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 1 of 21 PageID #:1493

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, et al., Plaintiffs-Petitioners, v.
THOMAS J. DART, Sheriff of Cook County,
Defendant-Respondent.

)

)

)

)

Case No. 20-cv-2134

)

)

The Hon. Matthew F. Kennelly

)

Emergency Judge

)

)

The Hon. Robert Gettleman

)

Presiding Judge

PLAINTIFFS’ RENEWED MOTION FOR A PRELIMINARY INJUNCTION AND FOR LIMITED, EXPEDITED DISCOVERY
A third person has died in the jail after the entry of this Court’s temporary restraining order. The Cook County Jail is currently the site of the largest single-site outbreak of COVID-19 in the country. The virus is spreading rapidly in the jail since the issuance of this Court’s order,1 and that is not surprising: People are sleeping within three feet of each other, eating and using showers in close proximity to each other, and touching the same surfaces. For counsel and the Court, casually speaking to a neighbor at arm’s length or touching the pump at the gas station with an un-gloved hand are terrifying prospects; in the Cook County Jail, people are confined in near-constant contact with each other in dormitory settings, forced to forgo the social distancing that overwhelming scientific and medical consensus has led government officials to mandate—by emergency decrees

1

As of April 9, 448 detainees and Sheriff's staff had tested positive for COVID-19. Two detainees

have died since that date. As of April 13, 541 detainees and Sheriff's staff had tested positive for COVID-

19. Injustice Watch, Cook County Jail Coronavirus

Tracker, https://datastudio.google.com/u/0/reporting/1AI4THiXJ_6Nt-

9NXwE0MfO_DUaa1Koxi/page/hcyJB?s=oQGghs5nYPk (last visited Apr. 14, 2020).

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 2 of 21 PageID #:1494
enforceable through criminal penalties—that the rest of us practice. These human beings are at grave risk.
In its April 9 temporary order, this Court concluded that full social distancing of detainees was not required because CDC guidance governing correctional facilities recognizes that “space limitations may require a departure from better social-distancing practices” and because the CDC acknowledged that correctional facilities must operate within their physical limitations for the purposes of that Agency’s emergency guidance to them. “Order” (Doc. 48) at 24-25. Instead of ordering full social distancing—which may be impossible without reducing the population of the jail—this Court took the initial step of first requiring safer practices within the jail and, specifically, social distancing at intake. (Id.) Since the Court’s order, it has become clear—as the evidence Plaintiffs proffer with this motion shows—that social distancing of detainees is the only way to prevent an intolerable risk to Plaintiffs’ health and lives. One of two additional things is therefore true: either it is possible for the Sheriff to implement medically required social distancing at current population levels, and he must be ordered to do so; or it is not possible for the Sheriff to implement medically required social distancing at current population levels, and the jail’s population must be decreased.
In light of this reality and the continued spread of the virus since the Complaint, Plaintiffs renew their ongoing request for a preliminary injunction and seek the following specific relief: (1) medical triage of vulnerable detainees and the implementation of social distancing, including but not limited to through transfer of detainees out of the Jail site at 2600 S. California; and (2) an emergency petition for habeas corpus on behalf of named Plaintiff Kenneth Foster and the class that he represents; and (3) narrow, targeted, and expedited discovery, see Ex. A and Part II(B), infra, which is necessary to determine whether the Sheriff is capable of complying with an
2

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 3 of 21 PageID #:1495
injunction requiring medical triage and social distancing and whether the Sheriff has complied with the Court’s TRO.
Importantly, if this Court concludes that medically necessary social distancing is impossible given the current population in the jail, Plaintiffs request that this Court convene an emergency three-judge district Court as required by 18 U.S.C. § 3626(a)(3)(A) so that Plaintiffs may proceed before to a tribunal with the statutory authority to grant the relief that the U.S. Constitution demands that they receive. Time is of the essence and the moment is unprecedented. Whether the medically required measures are taken in the next several days will determine whether thousands of additional people contract COVID-19.
I. The Existing TRO is an Essential First Step but One That Will Not Fully Protect Against the Constitutional Violations in the Jail.
In its April 9 order, the Court required that several steps be taken to improve conditions in the Jail. Specifically, the Court required the Office of the Sheriff (a) to establish and implement a policy requiring prompt coronavirus testing of symptomatic detainees and, to the extent feasible and at medically appropriate times, detainees who have been exposed to confirmed positive coronavirus cases and to symptomatic detainees (Order at 34); (b) to enforce social distancing during the new detainee intake process, including suspending the use of bullpens to hold new detainees awaiting intake (Order at 35); (c) to provide soap and or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands; to provide adequate sanitation supplies to enable staff and detainees to regularly sanitize surfaces and objects on which the virus could be present; and to create and implement a policy of frequent sanitation of objects and surfaces and of monitoring to ensure the sanitation takes place; and (d) to provide facemasks to all detainees who have been exposed to a case of coronavirus or to a symptomatic detainee— i.e., all detainees in quarantine.
3

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 4 of 21 PageID #:1496

Unfortunately, the evidence available since the TRO establishes that these essential steps have not worked and cannot work to abate the spread of the disease. Two facts are of utmost importance to this point: First, COVID-19 presents a threat of serious illness, organ failure, and death, particularly to individuals with pre-existing medical vulnerabilities.2 Second, the overwhelming scientific and medical consensus, as will be more fully described by Plaintiffs’ experts, is that it is not possible to reduce the serious risk of COVID-19 infection without social distancing. The legal significance of these two facts, under binding precedent discussed below, is that requiring confinement under conditions that expose individuals to this serious risk is not constitutionally permissible. Only two options remain, then. Either Defendant is ordered to accomplish the social distancing that overwhelming evidence demands and that all of us are required to practice in our own lives, or Defendant is ordered to reduce the population of the jail until such distancing is possible.
II. Social Distancing Is Necessary to Prevent an Unreasonable Risk to the Class. The only way to prevent a severe risk to Plaintiffs is to immediately implement medically
required social distancing. Dr. Gregg Gonsalves, an epidemiologist at the Yale School of Medicine and School of Public Health, submits an expert declaration attached to this Motion. In it, he explains the risks that COVID-19 poses to the health of people in the jail. COVID-19, he testifies, can lead to “bilateral interstitial pneumonia, which causes partial or total collapse of the lung

2

See Melissa Healy, Coronavirus infection may cause lasting damage throughout the body, doctors

fear, Los Angeles Times (Apr. 10, 2020) https://www.latimes.com/science/story/2020-04-10/coronavirus-

infection-can-do-lasting-damage-to-the-heart-liver (“[E]ven after patients who become severely ill have

recovered and cleared the virus, physicians have begun seeing evidence of the infection’s lingering

effects,” and describing many biological functions that had “failed to return to normal,” including

impaired liver function, and noting concern from cardiologists that “there will be long-term sequelae”

form the disease); Tianbing Wang et al., Comorbidities and multi-organ injuries in the treatment of

COVID-19, The Lancet, https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30558-

4/fulltext (Mar. 21, 2020) (reporting clinical indications that COVID-19 is not only capable of causing

pneumonia; it may also cause damage to other organs such as the heart, the liver, and the kidneys).

4

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 5 of 21 PageID #:1497

alveoli, making it difficult or impossible for patients to breathe. . . . COVID-19 can progress from a fever to life-threatening pneumonia with what are known as ‘ground-glass opacities.’” Ex. G ¶ 2. In his expert opinion, the only way to prevent an “essentially uncontrolled” spread of this deadly virus is to require complete “social distancing” of inmates—that is, to keep them six feet apart from one another. Compare id. ¶ 16 (“Social distancing means, in essence, isolating oneself from other people . . . and generally staying at least 6-12 feet from other people.”), with id. ¶ (“In my opinion, from an epidemiological perspective, ensuring that all detainees in Cook County Jail can socially distance from one another is the only way to prevent further, essentially uncontrolled, spread of the virus.”).3
As discussed more fully below, the Constitution forbids jailing people in conditions that pose an “unreasonable” risk to their health where “the risk . . . is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993). The mere fact that the CDC acknowledged in its guidance to jails that full social distancing may not be immediately feasible at current population levels does not affect the applicable constitutional principle. Cf. Edward J. Hanlon, “Proof of Unconstitutional Prison Conditions,” 24 AMJUR POF 3d 467 § 7 (“Most courts have held that it is improper to attempt to assess whether a given occupancy level violates a pretrial detainee's Fourteenth Amendment rights or a prisoner's Eighth Amendment rights by reference to standards set by a professional organization or by expert testimony based on such standards.”) (citing cases); Moralis v. Fageole, No. 06 C 2034, 2007 WL 2893652, at (CD. Ill.

3

Plaintiffs’ counsel has also worked with Professor Gonsalves to create a model that provides

projections of the impact of COVID-19 within correctional facilities like the Cook County Jail based on

the Jail's ability to implement social distancing. See Ex. D (Grady Declaration) (providing information

about the creation of the Model); See also Ex. J (COVID-19 Incarceration Model) (being provided to the

Court in its native Excel format via e-mail to the Court and counsel).

5

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 6 of 21 PageID #:1498
Sept. 28, 2007) (“ [D]efendants cannot simply escape their duty to provide dental care to those detained in their jail by asserting [the United States Marshall Service agreement] does not authorize the treatment.”). This is true for two reasons: First, the CDC never purported to declare that social distancing is unnecessary; it only concluded that at current population levels it may not be feasible. To this point, the CDC guidelines for correctional institutions specifically encourage correctional administrators to “work with local law enforcement and court officials” to “prevent over-crowding of correctional and detention facilities,”4 and in other settings, the CDC recommends wholesale cancellation of schools, closures of nursing facilities, closing of business offices, and cancellation of “faith-based gatherings of any size.”5 Indeed as one court observed,
Though the CDC has recommended public health guidance for detention facilities . . . these measures are inadequate to sufficiently decrease the substantial likelihood that Petitioner will contract COVID-19. As prison officials are beginning to recognize around the country, even the most stringent precautionary measures— short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease. Malam v. Barr, No. 20-10829, 2020 WL 1672662, at *8 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020). Second, there is no doubt that the risk of exposure to COVID-19 even in the general public is one to which society is unwilling to subject itself as a whole. Governors across the country, including in Illinois, have mandated social distancing and are using criminal laws to enforce that mandate.
4 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, at 6 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019cov/downloads/guidance-correctional-detention.pdf. 5 CDC, Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf (last visited April 14, 2020) (“substantial” spread recommendations).
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At a hearing, Plaintiffs will present testimony from Dr. Homer Venters, a correctional health expert and epidemiologist. Dr. Venters, whose CV is attached as Exhibit H, served as the Chief Medical Officer for the New York City jail system and before that, worked for several years in various other administrative positions in New York’s jail system. Dr. Venters now serves as the President of Community Oriented Correctional Health Services, an organization working with correctional healthcare systems to improve patient services. Dr. Venters regularly provides expert testimony on the topic of correctional healthcare and has extensive experience creating policies and practices to respond to infectious disease outbreaks in the correctional setting.
Plaintiffs expect that Dr. Venters will testify about the pressing need for social distancing at the Cook County Jail to protect against rampant infection. Dr. Venters will also testify about the need to triage and separate medically vulnerable detainees because of the higher level of medical supervision that they required during a viral outbreak. Finally, Dr. Venters will provide testimony about the various ways in which the Sheriff's policies are inadequate to protect against the substantial risk of harm posed to detainees at the Jail by rampant spread of the virus.
Plaintiffs will also present evidence from Dr. Amir Moheb Mohareb, an infectious disease specialist. Dr. Mohareb completed his medical degree at Johns Hopkins University School of Medicine, his medical training at Yale-New Haven Hospital, and his infectious disease fellowship training in the joint program of Brigham & Women's Hospital and Massachusetts General Hospital. He is board-certified in both Internal Medicine and Infectious Diseases. A copy of his CV is attached as Exhibit I. Dr. Mohareb practices at Massachusetts General Hospital and teaches at Harvard Medical School. Among other qualifications, Dr. Mohareb is a member
7

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 8 of 21 PageID #:1500
of the Biothreats Response Team at Massachusetts General Hospital, a position which has required him to take a leading role in infection control during the current COVID-19 outbreak.
Plaintiffs expect that Dr. Mohareb will testify about the clinical presentation of COVID19, the typical course of the disease in both non-vulnerable and vulnerable populations, and the method and rates of transmission of the virus. Dr. Mohareb will also offer testimony about the primary importance of social distancing in protecting against transmission of the virus, and the important, but supportive, role that hygiene and sanitization plays in protecting against transmission of the virus.
The above expert evidence regarding COVID-19 in the Jail, which Plaintiffs touch upon here and that they intend to present more fulsomely at the hearing, is confirmed by a broad and deep public health consensus. More than six hundred public health officials wrote to the CDC to ask that it explicitly call for significant reductions of the incarcerated population on the ground that the current risk even assuming compliance with other CDC protocols is intolerably high.6
III. If Social Distancing Is Possible at the Current Population Levels, this Court Should Order it Immediately.
The Sheriff must immediately be ordered to take all possible steps to implement medically required social distancing because it is the only way to prevent a severe risk of harm. Detainees may not constitutionally be exposed to a severe risk of contracting a communicable disease. Gates v. Collier, 501 F.2d 1291, 1300-1303 (5th Cir. 194) (cited with approval in Helling, 509 U.S. at 34); see also Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (noting that “exposure of inmates to a serious, communicable disease . . . can qualify [as a] deprivation . . . [that is] sufficiently serious; ); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an
6 See Robert R. Redfield, MD, et al., April 9, 2020 Letter, available at https://www.drugpolicy.org/sites/default/files/cdc_letter_on_decarceration_v3_0.pdf (last accessed Apr. 14, 2020).
8

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 9 of 21 PageID #:1501

affirmative obligation to protect inmates from infectious disease.”); Lareau v. Manson, 651 F.2d 96, 109–11 (2d Cir. 1981).
At this current time, it is clear that social distancing is not happening outside of intake at the Jail. Declarations on behalf of detainees that were taken on April 13 and 14, and are submitted as Group Exhibit E, make this evident. Detainees continue to reside in dorms, sleeping in close proximity to others, and in cells with two people.7 Detainees also continue to share common areas, sinks, showers, toilets and eating areas.8 Given the current state of affairs, the question is not

7

See e.g., Affidavit of Christina Lorenzo (“Lorenzo”) on Behalf of Durrell Barker (“Mr. Barker is

currently residing in a two-person cell with a cellmate. He was previously in a one-person cell but then he

received a cellmate on April 11, 2020.”); Aff. of Kara Crutcher on Behalf of Lonnie Sanders (“Until the

morning of April 14, Mr. Sanders was living in a two-person cell with another person. Mr. Sanders slept

on the floor of the cell. Mr. Sander’s tier has 25 people on it. There were 40 people on it as of

yesterday.”); Aff. of Laura Stempel (“Stempel”) on Behalf of Adam Sneed (“Mr. Sneed is residing in a

dorm, and there are three feet between beds.”); Aff. of Stempel on Behalf of Charles Wills (“Mr. Wills is

living in a dorm with 40 other people. There are 3 feet between bunks in the dorm.”); Aff. of Elizabeth

Corrado (“Corrado”) on Behalf of Daniel Arroyo (“There are 38 beds in Mr. Arroyo’s tier. He estimates

that 30 are being used. The beds are not far apart and social distancing is not possible.”); Aff. of Jason

Hammond (“Hammond”) on Behalf of Keith Jones (“Mr. Jones is living in a dorm with about 27 people. .

. . Social distancing is not possible in the tier. The beds are 3-5 feet apart from one another.”); and Aff. of

Hammond on Behalf of Torrenta Woodgett (“Social distancing is not possible in Mr. Woodgett’s housing

area. 12 people are allowed out in the common area for 6 hours at a time.”) (attached hereto as Group Ex.

E).

8

See e.g., Affidavit of Christina Lorenzo (“Lorenzo”) on Behalf of Durrell Barker (“Everyone on

the tier [in Division 10] shares the shower area and the phone, which are close together. They also share

common areas.”); Aff. of Laura Stempel (“Stempel”) on Behalf of James Johnson Sr. (“[In Division 10]

all detainees (40 people) share the shower area.”); Aff. of Kara Crutcher on Behalf of Lonnie Sanders

(“Social distancing [in Division 6] is not possible when using the phones, which are close together, or in

the shared bathrooms.”); Aff. of Stempel on Behalf of Adam Sneed (“Social distancing [in Division 8] is

impossible as the detainees share sinks, showers and toilets.”); Aff. of Stempel on Behalf of Charles Wills

(“All detainees in his dorm [in Division 8] share showers and toilets. Social distancing is not possible in

the dorm.”); Aff. of Elizabeth Carrado (“Corrado”) on Behalf of Mateusz Zabrzenski (“The tier [in

Division 8] has 4 showers and 4 bathroom stalls. . . . The tier’s day room is crammed. Social distancing is

impossible.”); Aff. Of Lorenzo on Behalf of Ricardo Hargrove (“The detainees [in Division 11] use a

shared shower area. They can use the shared shower area when they are allowed out of their cells to use

the phones.”); Aff. of Jason Hammond (“Hammond”) on Behalf of Keith Jones (“The telephones in the

tier [in Division 8] are two feet apart. Everyone eats next to each other and detainees share tables in the

dayroom.”); and Aff. of Hammond on Behalf of Torrenta Woodgett (“Everyone [in Division 11] shares

9

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whether social distancing is being done at a constitutionally sufficient level, but whether it can be done as such. As their contemporaneously filed motion for expedited discovery shows, Plaintiffs are seeking a minimally intrusive means to determine whether medically required social distancing is possible, but if it is there can be no doubt that the Sheriff must implement it immediately.
IV. If Social Distancing is Impossible at the Current Population Levels, the Jail Population Must Be Reduced through Release or Habeas Corpus, or People Must be Transferred to Another Safe Location in the Sheriff’s Custody.9
If medically required social distancing is not possible, people in the jail must be transferred (which is not a prisoner release order under the PLRA), or the jail population must be reduced, by convening a three-judge district court to hear evidence and issue a prisoner-release order, or by granting habeas corpus release to sufficient numbers of the medically vulnerable so as to enable medically required social distancing.
A. Population Density at the Jail Must be Reduced. To show a constitutional violation in this case, Plaintiffs must show that they are being
confined in conditions that are “objectively unreasonable.” (Order at 16–17.) It might seem obvious that if the current population of a jail unavoidably creates intolerable
risk to life and health then the current population must change. But the Sheriff contends that “the Constitution simply cannot require that the only objectively reasonable response to the current pandemic is for wardens across the country to be forced to open the jail doors.” (Doc. 41 at 9–10.) He cites no authority for this proposition. Because the proposition would apply regardless of the

showers and bathrooms. Detainees in the tier eat at shared picnic-style tables. People share the telephones, which are located about one foot from one another.”) (attached hereto as Group Ex. E).

9

Plaintiffs incorporate all prior briefing on the Prison Litigation Reform Act, habeas corpus and

transfer submitted in the above-captioned case, and which are specifically referenced throughout this

motion.

10

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 11 of 21 PageID #:1503
risk to the detainees, taken to its inevitable conclusion it would require that people—in this case legally innocent people, charged but not convicted of crimes, and many releasable on mere payment of money—suffer excruciating and preventable illness and death. According to the Sheriff, even if Plaintiffs prove that they are at an unreasonable risk of death or serious injury in the jail, and even if they prove that the only way to mitigate that risk is to transfer people or reduce the number of people in the jail, they still cannot obtain relief. This has it backwards. If current population levels in the Jail necessarily result in unconstitutional conditions, that does not make the conditions “objectively reasonable” and therefore constitutional; it requires a change in population levels.
The Sheriff argues also that it cannot be objectively unreasonable to do the best that one can under the circumstances—that is, if he is indeed doing his best (a point that Plaintiffs dispute at least prior to this Court’s intervention) to keep people safe in the jail, an injunction cannot issue. (Doc. 41 at 9-10) This is not the law. The law does not require the Sheriff to be a bad person or to be responsible for the overcrowded jail in order to be ordered to cease confining people in unlawful and dangerous conditions. In Brown v. Plata, the Supreme Court confirmed that where the prison population is such that reduction is the only way to cure a constitutional violation, an injunction may issue even if the defendant’s affirmative conduct did not cause the overcrowding. 563 U.S. 493, 521, 526–29 (2011) (noting that prisoner-release order was appropriate because adequate care was “impossible” without a reduction). If it were true that doing one’s best under the circumstances meant that there could be no constitutional violation—under the Eighth amendment, let alone the Fourteenth—then Brown’s conclusion that non-release measures were “impossible” would have ended that case. But the plaintiffs in Brown won.
11

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This principle is illustrated by the leading precedent in this area. In a case seeking
injunctive relief, the question is whether at the time the relief would issue the Plaintiffs state a
Constitutional violation. See Helling, 509 U.S. at 36 (“[T]he subjective factor . . . should be
determined in light of the prison authorities’ current attitudes and conduct.”). If the Sheriff were
told that a bomb or a gas line were about to explode in the jail in several days, it would make no
sense to say that the Constitution has not been violated because up to that point there was nothing
the Sheriff could have done to prevent the harm; at that point, the moment before the explosion—
the Court may order the Sheriff to get people out of the jail. The Supreme Court explained that
even the more restrictive deliberate-indifference standard follows this “common sense” notion:
If, for example, the evidence before a district court establishes that an inmate faces an objectively intolerable risk of serious injury, the defendants could not plausibly persist in claiming lack of awareness, any more than prison officials who state during the litigation that they will not take reasonable measures to abate an intolerable risk of which they are aware could claim to be subjectively blameless for purposes of the Eighth Amendment, and in deciding whether an inmate has established a continuing constitutional violation a district court may take such developments into account.
Farmer v. Brennan, 511 U.S. 825, 846 n.9 (1994).
Money v. Pritzker, Case No. 20-cv-2093, 2020 WL 1820660 (N.D. Ill. April 10, 2020),
does not counsel a different result than this Supreme Court precedent. There, the Court considered
a request for population reduction in the Illinois Department of Corrections owing to the risks
posed by COVID-19. The Court concluded that plaintiffs had not shown “deliberate indifference”
to an unconstitutional risk of serious harm because numerous measures were being implemented
such that there was no factual showing of an immediate intolerable risk to the plaintiffs’ health and lives. Id. at *17–18.10 Most importantly, Money did not have the benefit of an evidentiary

10

To the extent it makes a difference, in this case, the lesser standard of “objectively unreasonable”

conditions applies to Plaintiffs’ claims because they are pretrial detainees. It should be noted that forcing

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record that establishes that the only way to mitigate medically intolerable serious risk of infection was social distancing. Such distancing should be ordered here to reduce that risk, and if the current population requires unconstitutional conditions of confinement, the population must change. Money does not hold otherwise. Moreover, the Money plaintiffs, unlike Plaintiffs here, did not request improved conditions in the facilities to prevent an outbreak; their request, unlike Plaintiffs’ here, was interpreted by the court as one for immediate release and, therefore, the Money Court could not address the question whether continuing to jail people in conditions that threaten their lives after lesser steps have been implemented or are impossible violates the Constitution. Id. at *12–13. Moreover, Money considered the case at a time when an outbreak had not already threatened the lives of many people inside the facility; here, three people are already dead because of this virus. It is within that context and in a facility that is the largest known site of outbreak in the United States, that Plaintiffs’ expert testimony and legal argument is before this Court.
a. Habeas Corpus Plaintiff Kenneth Foster, by his next friend, seeks emergency release from the Jail pursuant
to a Section 2241 writ of habeas corpus because Mr. Foster has multiple health problems that place him at elevated risk of contracting serious COVID 19, making his continued detention in the Jail objectively unreasonable. Mr. Foster seeks this relief on behalf of himself and on behalf of those members of subclass A who, in addition to having health vulnerabilities that elevate their risk of serious COVID 19, also, like Mr. Foster, sought release from the Jail pursuant to the procedure established by Cook County Criminal Court Chief Judge Leroy K. Martin, Jr. by order dated March 23, 2020 and were denied.
someone to remain confined after a serious and intolerable risk to their life is proven would likely meet either standard. Farmer, 511 U.S. at 846 & n.9.
13

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The court’s April 9 order concluded that Plaintiff Foster and the subclass he provisionally represents are not entitled to habeas relief because Mr. Foster presented no evidence that he and the class had attempted to initiate the emergency procedure established by Judge Martin. See Order at 13. The undersigned counsel has subsequently learned that, in fact, Mr. Foster did seek release in the Circuit Court of Cook County under the Judge Martin procedure. Group Ex. F to this motion includes a motion to reduce bail, filed with the Circuit Court in Mr. Foster’s case on March 30. Mr. Foster is charged with robbery, domestic battery and unlawful restraint. Bail is set at $50,000 and he remains in the Jail because he does not have $5000 to pay bond. The motion to reduce bond sets forth Mr. Foster’s medical vulnerabilities (¶¶ 5-8) and explains that those vulnerabilities place him particularly at risk within the Jail in light of the pandemic (¶¶ 27-28). The motion specifically alleges that Mr. Foster’s constitutional right to objectively reasonable conditions of confinement in violation of the principles enunciated in Helling v. McKinney, 509 U.S. 25, 33-34 (1993). See Ex. F at ¶¶ 29-31. The motion was heard by Judge Joyce and was denied on April 2. See Ex. F.
The Public Defender has informed the undersigned counsel that Mr. Foster’s petition was one of 1193 cases that her office presented for review pursuant to Judge Martin’s procedure and that release was granted in 719 cases—leaving over 470 cases in which the defendant sought release but was denied. See Declaration of Locke E. Bowman Ex. B hereto) at ¶ 3. Counsel are informed and believe that the petitioner-defendant in a significant number of those cases suffers from an underlying health condition that makes them vulnerable to the coronavirus. The Sheriff possesses information that can confirm this belief. Class wide treatment of this habeas claim is therefore appropriate.
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As Plaintiffs have acknowledged elsewhere, Illinois law provides a right of appeal from a trial court’s refusal to modify bond. See Ill. S. Ct. Rule 604(c). But that remedy would require weeks to pursue, as the declaration of the Public Defender’s Chief of Staff, Lester Finkle, (attached as Ex. C) makes clear. Plaintiffs have argued elsewhere that such time frames render appellate remedies practically unavailable in the context of the present emergency. See Plaintiffs’ Supplemental Br. in Support of TRO (Doc. No. 42) at 13-16. Those arguments are incorporated by reference here. This court should find, under the circumstances, that exhaustion must be excused, either because it would be futile or by application of the court’s equitable authority to excuse exhaustion in Section 2241 cases. See generally Gonzalez v. O’Connell, 355 F.3d 1010, 1016 (7th Cir. 2004).
Mr. Foster is entitled to a writ of habeas corpus based on the totality of the evidence before the court as to the unacceptable risk he faces within the Jail of contracting a life-altering, potentially fatal illness. Mr. Foster suffers from a number of chronic illnesses that elevate his risk, including a history of stomach cancer (for which he was scheduled to begin chemotherapy at the time of his arrest), chronic kidney disease and high blood pressure, among others. See Ex. __ at ¶ 5. He has a home to which he could return, where he would live alone and would not be a threat to the personal safety of any person. See Bowman Dec. at ¶ 4. It is appropriate to grant habeas corpus relief to a confined person in order to remove that individual from unacceptable conditions of confinement. Compare, e.g., Robinson v. Sherrod, 631 F.3d 839, 840–41 (7th Cir. 2011), with Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005); see also TRO Order at 14–15.
The same relief is appropriate for each member of the class identified in this motion. Every member of this class faces the same unacceptable risk of serious illness or death because of their heightened vulnerability to the coronavirus and every member of the class faces that risk because
15

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 16 of 21 PageID #:1508
of the impossibility of social distancing within the Jail and the exorbitant risk of infection in the Jail environment. These common factual and legal issues should therefore be addressed on a class wide basis.
Plaintiffs acknowledge that the court will need to individually assess the conditions under which each individual class member should be released, consistent with public safety concerns separate from the spread of the coronavirus. After adjudication of the class wide issues, such individual questions may be taken up by the parties and the court on a case-by-case basis.
b. Transfer This Court, sitting as a single judge, may order that Dart transfer prisoners to a safe facility
or form of custody of his choosing. As Plaintiffs’ response to the Court’s April 3 Order makes clear (Doc. No. 26-1) at 17-25, an order that prisoners be transferred to receive adequate medical care or to be removed from areas where they would be exposed to deadly diseases is not a “prisoner release order” within the meaning of the PLRA and, therefore, may be issued by a single-judge court. See Plata v. Brown, No. C01-1351 TEH, 2013 WL 3200587, at *8 (N.D. Cal. June 24, 2013) (granting motion requiring transfer from area at high risk of coccidioidomycosis, known as “Valley Fever”); Reaves v. Dep’t of Correction, 404 F. Supp. 3d 520, 523 (D. Mass. 2019) (three judge panel was not required for order of transfer of quadriplegic prisoner to another facility in which he would be treated by a physician with training to care for his substantial and numerous medical needs, as remedy for defendants’ failure to provide adequate medical care). This is true under the Prison Litigation Reform Act (PLRA), even if the Sheriff transfers detainees to forms of custody outside of traditional prison buildings. See Jackson v. Johnson, 475 F.3d 261, 265-66 (5th Cir. 2007) (holding that a person subjected to confinement in a halfway house counts as a “prisoner” under the PLRA ) (“[A]lthough Jackson has been released from confinement in prison, his release
16

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 17 of 21 PageID #:1509

was not to the general public but was rather to a different form of confinement, albeit with certain additional liberties. It is clear that Jackson is being ‘detained in any facility’ since he is locked up in the halfway house 16 to 24 hours a day and since he may leave the halfway house only for very limited purposes.” (citing Witzke v. Femal, 376 F.3d 744, 752 (7th Cir. 2004) (determining that halfway-house resident who could leave the facility only during the day and was locked inside at night was confined for PLRA purposes)). Under the PLRA, a “prison” is a “Federal, State, or local facility that incarcerates or detains.” 18 U.S.C. § 3626(g)(5). As Plaintiffs’ Supplemental Brief further elucidates (Doc. No. 42 at 17-19), Plaintiffs are not asking that they be sent anywhere other than a safe facility that incarcerates them—that is a place that “confin[es]” them, see Black’s Law Dictionary, Incarceration (11th ed. 2019) —and, therefore, they do not seek a “prisoner release order” under the PLRA.11
c. Release Finally, if this Court concludes that social distancing is medically required to reasonably
prevent transmission of the virus and that this social distancing is likely impossible under current conditions, Plaintiffs respectfully request that this Court immediately convene a three-judge panel pursuant to 18 U.S.C. 3626(a)(3)(A).
To convene a three-judge district court, this Court must (a) have “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied”; and (b) that the Court give the Defendant a “reasonable time” to comply with the prior order to determine whether compliance will cure the constitutional violation. Id. “[W]hat is

11

The district court in Gray v. County of Riverside, No. 13 C 0444, Dkt. 191 (C.D. Cal. Apr. 14,

2020), recently recognized that an order directing a sheriff to transfer detainees to a safer location is not a

"prisoner release order" and therefore not subject to the requirements of 18 U.S.C. § 3626(a)(3). See Ex.

K (Order Granting Emergency Motion to Enforce Consent Decree) at 4-5.

17

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 18 of 21 PageID #:1510
reasonable in ordinary times may be quite different from what is reasonable in these extraordinary times.” Coleman v. Newsome, No. 01-CV-01351-JST, 2020 WL 1675775, at *4 n. 9 (E.D. Cal. Apr. 4, 2020) (three-judge court).
Much of what comes next depends on the Office of the Sheriff. If the Sheriff contends that social distancing of the kind required by medical science (which the Sheriff appears to have implemented at intake, see Doc. 51-2) is possible throughout the facility with the current population at the physical 2600 S. California facility, then this Court should order that, an emergency three-judge panel need not be convened, and Plaintiffs should be given a chance to discover on an expedited basis the extent to which Defendant’s contention is true.
If, however, the Sheriff contends that the Office is doing its best under difficult circumstances but that, for whatever reason, such social distancing is not immediately possible with the current jail population, no further time is reasonable to comply. By definition, further time will not yield compliance and will not lead to constitutionally tolerable conditions. At that point, release will be the only remaining option to save the lives and health of potentially thousands of people, and so Plaintiffs would request that a tribunal statutorily empowered to order release be convened as quickly as possible to hear evidence on whether the current population at the jail is indeed the source of constitutional violations, and to determine whether release is necessary. See, e.g., Coleman, 2020 WL 1675775, at *4 n. 9. Should the tribunal be unable to be convened within the time period necessary to avert disaster under prevailing scientific reality, then that narrow procedural component of the PLRA would be unconstitutional because it would prevent the emergency vindication of essential constitutional rights, and this Court should order such emergency relief until such time as the tribunal can convene. Cf. See, e.g., Plata, , 2013 WL
18

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 19 of 21 PageID #:1511
3200587 at *8 (rejecting interpretation of the PLRA because it “would prevent vindication of the inmates’ constitutional rights and would therefore be impermissible”).
B. Limited Discovery Is Necessary and Appropriate as to the Relief Requested. The court should also afford Plaintiffs an opportunity to conduct limited discovery on an
expedited basis in advance of a hearing on their requests. Although the commencement of formal discovery typically awaits the completion of the parties’ Rule 26(f) conference, the court’s ability to control the timing and sequencing of discovery has been interpreted to allow the entry of an order to expedite the discovery process—particularly where the plaintiff seeks preliminary injunctive relief. See, e.g., Ellsworth Associates, Inc. v. United States, 917 F. Supp. 841, 844 (D. D.C. 1996); Revlon Consumer Products Corp. v. Jennifer Leather Broadway, Inc., 858 F. Supp. 1268, 1269 (S.D.N.Y. 1994); Rehabilitation Institute of Chicago v. Hicks, 1990 WL 16298 (N.D. Ill. Jan. 26, 1990). To obtain expedited discovery, the requesting party must establish “good cause,” generally interpreted to mean that the need for discovery outweighs the prejudice to the responding party. Share Corp. Momar, Inc. 2010 WL 724321 (E.D. Wis. Feb. 26, 2010).
Plaintiffs seek to leave to expedite three items of discovery: (1) Plaintiffs seek entry into the Jail for their designated medical/public health expert and, in the course of that view, the opportunity to photograph and to take video of selected conditions; (2) Plaintiffs seek depositions, limited to three hours, of Dr. Connie Menella, the Chair of Correctional Health at Cook County Hospital, whose declaration the Sheriff filed in response to relief in this case and as part of the Sheriff’s status on compliance with the TRO, and of Michael Miller, the Jail’s First Assistant Executive Director whose declaration the Sheriff filed in opposition to relief in this case; and (3) the opportunity to propound a narrow set of document production requests seeking the identity and
19

Case: 1:20-cv-02134 Document #: 55 Filed: 04/14/20 Page 20 of 21 PageID #:1512
location of the members of subclass A and ongoing data regarding the spread of the coronavirus in the Jail, among other things. This proposed discovery is attached as Exhibit A.
There is “good cause” for this discovery. The court has held that Plaintiffs are entitled to a TRO with respect to certain aspects of the Jail’s response to the pandemic, as to which there is evidence of inadequacy. Plaintiffs have proffered new evidence further supporting their very urgent claim that the lives of members of the plaintiff classes are being unnecessarily placed at risk by further inadequacies of the Jail’s coronavirus response—in particular, the failure to mandate social distancing and the failure to identify and triage medically vulnerable detainees. The limited discovery Plaintiffs seek is necessary to enable the Plaintiffs to present evidence to the court in the emergency hearing that Plaintiffs seek on their second preliminary injunction motion.
Plaintiff recognize that the Jail is in crisis; that there is a shortage of staff because of illness, including confirmed and suspected coronavirus cases among Jail staff; and that these are trying times for all of us. With this in mind, Plaintiffs have narrowly circumscribed their discovery requests so as to intrude only minimally on the Jail. Balancing the need for discovery against the prejudice caused to the Sheriff, the court should conclude that there is “good cause” to expedite discovery and to grant this motion in its entirety.
WHEREFORE, Plaintiffs request that this Court grant their renewed motion for a Preliminary Injunction and for limited, expedited discovery.
20

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Respectfully submitted,
/s/ Alexa A. Van Brunt Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue, Chicago, IL 60611 (312) 503-0884 l-bowman@law.northwestern.edu a-vanbrunt@law.northwestern.edu
Stephen H. Weil Sarah Grady LOEVY & LOEVY 311 N. Aberdeen Street, #3 Chicago, IL 60607 Tel: 312-243-5900 Fax: 312-243-5902 weil@loevy.com sarah@loevy.com
Charles Gerstein Alec Karakatsanis Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 charlie@civilrightscorps.org alec@civilrightscorps.org 202-894-6128
CERTIFICATE OF SERVICE
I, Alexa Van Brunt, an attorney, hereby certify that on April 14, 2020 before 8:00 p.m., I
caused a copy of the foregoing to be filed using the Court’s CM/ECF system and served upon all
counsel who have filed appearances in the above-captioned matter.
/s/ Alexa A. Van Brunt Alexa A. Van Brunt
21

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EXHIBIT A

Case: 1:20-cv-02134 Document #: 55-1 Filed: 04/14/20 Page 2 of 6 PageID #:1515

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 1:20-cv-02134

PLAINTIFFS’ FIRST EXPEDITED SET OF REQUESTS FOR PRODUCTION TO DEFENDANT THOMAS DART
NOW COME the Plaintiffs, ANTHONY MAYS and JUDIA JACKSON, the next
friend of KENNETH FOSTER, by their undersigned attorneys, and hereby propound the

following First Set of Requests for Production to Defendant THOMAS DART pursuant to

Federal Rule of Civil Procedure 34, to be answered within 48 hours of service thereof.

DEFINITIONS AND INSTRUCTIONS

1. "Complaint" refers to any complaint or criticism, including but not limited to written complaints, grievances, disciplinary records, personnel records, legal proceedings, or other Documents relating in any manner to Defendant Thomas Dart’s job performance or the job performance of any of his counsel, consultants, employees, representatives, agents, contractors, experts, investigators, or other persons acting on his behalf.

2. "Identify" with respect to a person, shall mean to provide that person’s name, address, and telephone number; with respect to a Document, "identify" shall mean to provide the date of the Document, the author of the Document, the subject matter of the Document, and, where applicable, all recipients of the Document; with respect to a Communication, "identify" shall mean to provide the date of the Communication, the Person making the Communication, the subject matter of the Communication, and all Persons who received the Communication.

3. Any request for a Document is also a request to produce all iterations of that Document, including all earlier and all later versions of that Document.
1

Case: 1:20-cv-02134 Document #: 55-1 Filed: 04/14/20 Page 3 of 6 PageID #:1516
4. If there are no Documents in your possession, custody, or control responsive to a particular request, please so state and identify the particular request for which you have no responsive Documents in your possession, custody, or control.
5. If any Documents responsive to Plaintiffs’ discovery requests are known by you to exist but are not in your possession, custody, or control, please identify those Documents and the Person who has possession, custody, or control thereof.
6. In accordance with the ongoing duty of supplementation pursuant to Rule 26 and in light of the emergency and fast-moving nature of the facts relating to the Jail and its response to the pandemic, Plaintiffs specifically request supplementation of the responses to each of the requests below on a daily basis, to the extent new information has emerged. For similar reasons, Plaintiffs seeks responses to these narrow requests with 48 hours following service thereof.
REQUESTS FOR PRODUCTION 1. Documents sufficient to show a list of “medically vulnerable” individuals detained in the Jail who fall within Subclass A, Compl., ECF. 1, at 28, conditionally certified by the Court (ECF 48) which includes anyone who is over the age of 65 and/or suffering from any of the following conditions: respiratory conditions including chronic lung disease or moderate to severe asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other condition or related to treatment for a medical condition; people with chronic liver or kidney disease or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; people who have had or are at risk of stroke; and people with any other condition specifically identified by CDC either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19, see https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. This list should include, at least, each class member’s name, age, booking number, bond status/amount, housing location, medical condition, as well as any internal “flag” or classification used by the CCSO in its internal database to designate that person as suffering from the relevant
2

Case: 1:20-cv-02134 Document #: 55-1 Filed: 04/14/20 Page 4 of 6 PageID #:1517
medical condition. This list should be updated as detainees are processed into the Jail who fall
within the Subclass A definition. Plaintiffs believe that much of this information will be contained
in Health Alerts transmitted between Cermak Health and the CCSO.
2. Documents sufficient to show daily updates to the operational information
contained in the Michael Miller declaration (attached as Ex. H to the Sheriff’s Response in
Opposition to Plaintiffs’ Motion for a Temporary Restraining Order, ECF No. 30-8), including but
not limited to the following information:
a. Trends in assigned isolation alerts for unique bookings (Miller Group Ex. 1 at 2-3)
b. List of all tier and occupancy information as set forth in Miller Group Ex. 1, pp. 4-
9, including but not limited to Division, Facility, Tier, Capacity, Occupancy,
Percent Occupied, Tier Type, First Quarantine, and Projected End Date. This
information should be updated daily.
3. Documents sufficient to show the number of persons reporting for work at the Jail
on each day since March 22, 2019, the employer of each such person, and the person’s position.
Respectfully submitted,
/s/ Alexa A. Van Brunt Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue, Chicago, IL 60611 (312) 503-0884 l-bowman@law.northwestern.edu a-vanbrunt@law.northwestern.edu
Stephen H. Weil Sarah Grady LOEVY & LOEVY 311 N. Aberdeen Street, #3 Chicago, IL 60607 Tel: 312-243-5900
3

Case: 1:20-cv-02134 Document #: 55-1 Filed: 04/14/20 Page 5 of 6 PageID #:1518 Fax: 312-243-5902 weil@loevy.com sarah@loevy.com Charles Gerstein Alec Karakatsanis Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 charlie@civilrightscorps.org alec@civilrightscorps.org 202-894-6128
4

Case: 1:20-cv-02134 Document #: 55-1 Filed: 04/14/20 Page 6 of 6 PageID #:1519 CERTIFICATE OF SERVICE
I, Alexa Van Brunt, an attorney, certify that on April _____, 2020, I served the foregoing Requests for Production upon all parties of record by electronic mail.
/s/ One of Plaintiffs’ Attorneys
5

Case: 1:20-cv-02134 Document #: 55-2 Filed: 04/14/20 Page 1 of 3 PageID #:1520
EXHIBIT B

Case: 1:20-cv-02134 Document #: 55-2 Filed: 04/14/20 Page 2 of 3 PageID #:1521

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS DART, Sheriff of Cook County,

)

)

Defendant-Respondent.

)

Case No. 1:20-cv-02134

DECLARATION OF LOCKE E. BOWMAN

1. I am attorney licensed to practice law in the State of Illinois and one of the

counsel for the plaintiff class in this litigation.

2. On April 7, 2020, I exchanged emails with Amy P. Campanelli, Pubic Defender

of Cook County, and Lester Finkle, her Chief of Staff, regarding the results the Public Defender

had on the motions that the office brought pursuant to an order entered by Circuit Court of Cook

County Chief Judge Leroy K. Martin, Jr. regarding the availability of expedited procedures to

reconsider bond for detainees in the Cook County Jail in light of the coronavirus pandemic.

3. Ms. Campanelli reported to me that the office presented 1070 cases for expedited

review pursuant to the Judge Martin order at the criminal courthouse at 26th Street and

California Avenue and that 123 such cases were presented at the Markham courthouse. Release

was granted in 673 Chicago cases and 46 Markham cases, yielding totals of 1193 cases

considered and 719 releases granted. Thus, release was denied in 472 cases in which the

Case: 1:20-cv-02134 Document #: 55-2 Filed: 04/14/20 Page 3 of 3 PageID #:1522

defendant sought release pursuant to Judge Martin’s expedited procedure for reconsidering bond in light of the coronavirus pandemic.
4. On April 14, I spoke with Judia Jackson, next friend of Plaintiff Kenneth Foster in this litigation. Ms. Jackson informed me that, prior to his arrest, Mr. Foster had made arrangements to live at 4428 W. Wilcox in Chicago, in the first floor apartment (unit 1). That building is owned by Sheldon Dabney, who is a close personal friend of Ms. Jackson. The building is now vacant. Mr. Foster had agreed to assist Mr. Dabney by acting as a handyman and caretaker for the property in Mr. Dabney’s absence. Mr. Foster is welcome to live at the property, as previously arranged, should Mr. Foster be released from the Jail.

I declare under penalty of perjury that the foregoing information I have provided is true and correct to the best of my knowledge, information, memory, and belief.

April 14, 2020 Chicago, Illinois

___/s/ Locke E. Bowman ________________ Locke E. Bowman

2

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EXHIBIT C

Case: 1:20-cv-02134 Document #: 55-3 Filed: 04/14/20 Page 2 of 3 PageID #:1524

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, et al., Plaintiffs-Petitioners, v.
THOMAS J. DART, Sheriff of Cook County,
Defendant-Respondent.

)

)

)

)

Case No. 20-cv-2134

)

)

The Hon. Matthew F. Kennelly

)

Emergency Judge

)

)

The Hon. Robert Gettleman

)

Presiding Judge

DECLARATION OF LESTER FINKLE

1. I am an attorney licensed to practice law in the State of Illinois. I have spent my entire professional career since graduation from law school in 1982 engaged in the practice of criminal law in Cook County, Illinois. I am currently Chief of Staff to Cook County Public Defender Amy P. Campanelli. I am very familiar with the practice of criminal law, not only in terms of the applicable rules, statutes and case authority, but also in terms of the realities on the ground in Cook County and the application of the rules and standards in practice.
2. Illinois Supreme Court Rule 604(c) provides for a right of interlocutory appeal from denials of a trial court’s refusal to modify bail or the conditions thereof. The interlocutory appeal authorized by Rule 604(c) must be preceded by a verified motion in the trial court setting forth five specified items of information about the defendant. Upon denial by the trial court of such a verified motion, the defendant may file a “verified motion for review” in the Illinois Appellate Court, setting forth the ruling below, the crimes charged, the “amount and condition of bail,” and the arguments in support of relief. Id. The State has an opportunity to answer the motion, but is not required to do so.

Case: 1:20-cv-02134 Document #: 55-3 Filed: 04/14/20 Page 3 of 3 PageID #:1525

3. Upon denial by the Appellate Court, the defendant has the right to seek discretionary review in the Illinois Supreme Court via a petition for leave to appeal.
4. The Cook County Public Defender does not routinely file motions for review in the Appellate Court pursuant to Rule 604(c). In certain cases, however, our Office has filed such motions. I am therefore generally aware of the process and, in particular, the time frames that are involved in litigating a 604(c) appeal.
5. In my experience, the time from denial of a motion to reconsider bond in the trial court to decision on a verified motion for review under Rule 604(c) by the Illinois Appellate Court is measured in weeks. It typically takes approximately two to four weeks from denial of a bond reconsideration motion to the ruling from the Appellate Court in such cases.
6. In my experience generally, the process of filing a motion for leave to appeal with the Illinois Supreme Court and obtaining that court’s decision on whether to accept a case takes at least four to six weeks. When the Illinois Supreme Court accepts a case for review, the process to decision lasts for months, at least.

I declare under penalty of perjury that the foregoing information I have provided is true and correct to the best of my knowledge, information, memory, and belief.

April 6, 2020 Chicago, Illinois

/s/ _______________________________________
Lester Finkle

Case: 1:20-cv-02134 Document #: 55-4 Filed: 04/14/20 Page 1 of 8 PageID #:1526
EXHIBIT D

Case: 1:20-cv-02134 Document #: 55-4 Filed: 04/14/20 Page 2 of 8 PageID #:1527

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, et al., Plaintiffs-Petitioners, v.
THOMAS J. DART, Sheriff of Cook County,
Defendant-Respondent.

)

)

)

)

Case No. 20-cv-2134

)

)

The Hon. Matthew F. Kennelly

)

Emergency Judge

)

)

The Hon. Robert Gettleman

)

Presiding Judge

DECLARATION OF SARAH GRADY

Pursuant to 28 U.S.C. § 1746, I hereby declare and state as follows:

1. I am over the age of eighteen and am fully competent to make this declaration. I

make this declaration based upon personal knowledge unless otherwise indicated.

2. I am an attorney at the law firm of Loevy & Loevy. On April 13, 2020, my firm

obtained the COVID-19 Incarceration Model published by Recidiviz, a non-profit technology

company that builds open-source data platforms to assess outcomes in criminal justice systems,

by visiting Recidiviz’s website at: https://www.recidiviz.org/covid.

3. The COVID-19 Incarceration Model (the Model) is an interactive model that

provides an estimated projection of the impact of COVID-19 within correctional facilities like

the Cook County Jail.

4. The Model specifically provides projections regarding the likely number of

individuals who are infectious over time, the likely number of individuals who are currently

exposed over time, the likely number of individuals requiring hospitalization over time, and the

likely number of fatalities. It further provides projections regarding the total number of cases in

both the detained and staff populations, the total number of hospitalizations in both the detained

Case: 1:20-cv-02134 Document #: 55-4 Filed: 04/14/20 Page 3 of 8 PageID #:1528
and staff populations, and the peak percentage of hospital beds from the community that will be utilized by COVID-19 infected individuals traced to the Jail.
5. Those projections vary based on the amount of social distancing that is enforced at the Jail, leading to a change in the rate of spread that is quantified in the Model. The Model provides three modes regarding the rate of spread: (a) High (very little social distancing), (b) Moderate (some social distancing), and (c) Low (substantial social distancing). The formulas employed by the Model to arrive at its projections are set forth in the “Calculation Data” tab in the Model.
6. The Model’s predictions are based on a large amount of national data, including, among others, statistics from the CDC regarding the periods of incubation, contagion, and infection, recovery times, hospitalization and mild case rates, and mortality rates. The Model also bases its predictions on data regarding the rate of spread in high, medium, and low spread settings. The data used by the Model are set forth in the “Variables” tab in the Model.
7. The Model permits the user to edit the inputs based on the most recent data available. Accordingly, under my direction, staff at my firm and law students at Northwestern Law School worked to collect the most recent information regarding Cook County-specific data, including, among others, the total number of hospital and ICU beds in the county, the number of COVID-19 cases and fatalities in the county, the current population and capacity of the Cook County Jail, the current number of staff at the Jail, and the current number of reported cases at the Jail by detainees and staff. The source of that data is reflected in rows 49-56 on the “Variables” tab in the Model, and is inputted in the “Jail and Prison Data” tab, as well as the “Inputs” tab in the Model.
2

Case: 1:20-cv-02134 Document #: 55-4 Filed: 04/14/20 Page 4 of 8 PageID #:1529
8. After inputting the data collected, the Model predicts that with a “High” rate of spread (i.e., no social distancing), 3,880 detainees and 2,954 staff will contract COVID-19, leading to a peak hospital bed utilization rate of 5.3%. The Model predicts that with a “Low” rate of spread (i.e., substantial social distancing), 2,968 detainees and 2,341 staff will contract COVID-19, leading to a peak hospital bed utilization rate of 3.2%. The Model’s outputs under these scenarios are attached to this declaration in PDF format.
9. I provided the Model to Gregg Gonsalves, who reviewed the data and calculations used to generate the Model’s output. Professor Gonsalves’s discussion of the Model is set forth in paragraph 28 of his declaration, and Professor Gonsalves is prepared to answer questions about the Model, including the assumptions upon which it relies, and the accuracy and limitations of its projections.
10. Immediately after the filing of Plaintiffs’ motion for preliminary injunction, I will transmit a copy of the Model in its native Excel format to the Court’s proposed order box, copying counsel for all parties. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 14, 2020 in Chicago, Illinois.
Sarah Grady
3

Case: 1:20-cv-02134 Document #: 55-4 Filed: 04/14/20 Page 5 of 8 PageID #:1530
Attachment 1
COVID-19 Incarceration Model Output Utilizing the “High” Rate of Spread

Case: 1:20-cv-02134 Document #: 55-4 Filed: 04/14/20 Page 6 of 8 PageID #:1531

COVID-19 Incarceration Model

4/3/2020

Our understanding of the virus is evolving daily; for the most up-to-date model, download the latest version from recidiviz.org/covid
What is this?
This is an interactive model to allow criminal justice leaders and their staff to project the likely impact of COVID-19 within facilities. Choose your state on the 'Inputs' tab to pre-populate this model with data from your state, or complete all of the gray boxes on that tab to make the model more nuanced. If you have any questions, comments, or concerns, first check the FAQ tab. If you still have a question, reach out to covid@recidiviz.org.
Estimated impact
The chart and the tables that follow it project how far into the future cases will peak in your facilities and how high that peak will be. It also forecasts hospital bed needs, and compares this to the number of hospital beds available in your region.

Total Cases

1400.000

Expo sed

I nfecti ous

Ho sp itali zed

F at aliti es

1200.000

1000.000

800.000 600.000

(Chart)

400.000

200.000

0.000 0 3 6 9 12 15 18 21 24 27 30 33 36 39 42 45 48 51 54 57 60 63 66 69 72 75
-200.000 Days

Incarcerated population (totals) Cases In hospital % of county hospital beds used by incarc. pop. Deceased

In 1wk
1,240 54
0.6% 1

Impact Projections

In 2wk

In 3wk

2,612 187
2.0% 3

3,479 391
4.1% 6

In-facility staff (totals) Infected Unable to Work In hospital Deceased

805

1,612

2,379

384

763

1,090

64

173

292

2

11

30

Maximum utilization Peak hospital bed utilization (as % of hospital beds in county) Days until peak hospital bed utilization Days until 50% hospital bed utilization in region is by incarcerated population

Overall
3,880 1,009 (N/A)
33
2,954 (N/A)
768 170
5.3% 30
N/A

Case: 1:20-cv-02134 Document #: 55-4 Filed: 04/14/20 Page 7 of 8 PageID #:1532
Attachment 2
COVID-19 Incarceration Model Output Utilizing the “Low” Rate of Spread

Case: 1:20-cv-02134 Document #: 55-4 Filed: 04/14/20 Page 8 of 8 PageID #:1533

COVID-19 Incarceration Model

4/3/2020

Our understanding of the virus is evolving daily; for the most up-to-date model, download the latest version from recidiviz.org/covid
What is this?
This is an interactive model to allow criminal justice leaders and their staff to project the likely impact of COVID-19 within facilities. Choose your state on the 'Inputs' tab to pre-populate this model with data from your state, or complete all of the gray boxes on that tab to make the model more nuanced. If you have any questions, comments, or concerns, first check the FAQ tab. If you still have a question, reach out to covid@recidiviz.org.
Estimated impact
The chart and the tables that follow it project how far into the future cases will peak in your facilities and how high that peak will be. It also forecasts hospital bed needs, and compares this to the number of hospital beds available in your region.

Total Cases

Expo sed

I nfecti ous

Ho sp itali zed

F at aliti es

700.000

600.000

500.000

400.000

300.000 200.000

(Chart)

100.000

0.000

0 -100.000

3

6

9 12 15 18 21 24 27 30 33 36 39 42 45 48 51 54 57 60 63 66 69 72 75

-200.000

Days

Incarcerated population (totals) Cases In hospital % of county hospital beds used by incarc. pop. Deceased

In 1wk
702 44
0.5% 1

Impact Projections

In 2wk

In 3wk

1,313 105
1.1% 3

1,910 195
2.0% 4

In-facility staff (totals) Infected Unable to Work In hospital Deceased

636

1,013

1,424

328

489

606

58

124

172

1

9

21

Maximum utilization Peak hospital bed utilization (as % of hospital beds in county) Days until peak hospital bed utilization Days until 50% hospital bed utilization in region is by incarcerated population

Overall
2,968 771
(N/A) 24
2,341 (N/A)
608 132
3.2% 37
N/A

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 1 of 11 PageID #:1534
GROUP EXHIBIT E

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 2 of 11 PageID #:1535

Affidavit of Christina on Behalf of Durell Barker
My name is Christina Lorenzo. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 13, I spoke to Durell Barker, a detainee in the Cook County Jail, who provided me the following information.
1. Mr. Barker is 36 years old. He is residing in Division 10 (DIV10-2B-2122-2) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since October 22, 2019.
2. Mr. Barker has asthma, sickle cell trait and acute bronchitis. He is not receiving medication.
3. Mr. Barker is currently residing in a two-person cell with a cellmate. He was previously in a one-person cell but then he received a cellmate on April 11, 2020.
4. Mr. Barker’s tier is not on lockdown. They are letting 7 to 10 people out of their cells at a time, though sometimes everyone on the tier is let out at the same time. This does not make sense to Mr. Barker if the Jail is trying to social distance the detainees.
5. Social distancing is not possible in the tier. Everyone on the tier shares the shower area and the phone, which are close together. They also share common areas.
6. People around Mr. Barker are visibly sick. Staff have not come around the tier to take people’s temperatures.
7. There are no grievance slips on the tier. Jail staff claim they have no slips to hand out.
8. Mr. Barker has not received cleaning supplies for his cell or the common areas. Mr. Barker receives one tiny and thin bar of soap per week.
9. Mr. Barker received a mask for the first time on April 12.
10. Mr. Barker has not seen a counselor for 2-3 weeks.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 13, 2020 Chicago, Illinois

/s/ Christina Lorenzo Christina Lorenzo

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 3 of 11 PageID #:1536

Affidavit of Christina Lorenzo on Behalf of Ricardo Hargrove
My name is Christina Lorenzo. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 13, 2020, I spoke to Ricardo Hargrove, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Hargrove resides in Division 11 (Div11-DA-201-1).

2. Mr. Hargrove has kidney problems and bronchitis. He is not receiving medication.

3. Mr. Hargrove believes his unit is under quarantine; 6 people have been removed from it with COVID-19 symptoms.

4. On April 13, Mr. Hargrove saw one detainee get taken out of his cell. He was so sick he could barely walk. This detainee’s cellmate was left back in the cell; Mr. Hargrove did not see the cellmate receive cleaning supplies.

5. Mr. Hargrove estimates that there are currently 48 people on his tier. They are allowed out into the common area 6 cells at a time.

6. The detainees use a shared shower area. They can use the shared shower area when they are allowed out of their cells to use the phones.

7. The detainees have been given a mix of soap and water and have been told that it is hand sanitizer.

8. The detainees have not been given cleaning supplies. Mr. Hargrove has not seen the tier’s common areas get cleaned at all.

9. Mr. Hargrove believes he may have COVID-19. Jail staff tested his cellmate on April 3 and removed him the same day. When they did so Mr. Hargrove begged for cleaning supplies, but was not given any.

10. Since then, Mr. Hargrove has had shakes, fever, and a bad cough. He also has hot flashes, and his eyes have been red, but he has not been tested.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Christina Lorenzo Christina Lorenzo

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 4 of 11 PageID #:1537

Affidavit of Elizabeth Corrado on Behalf of Daniel Arroyo
My name is Elizabeth Corrado. I am a volunteer investigator assisting the plaintiff’s attorneys litigating Mays v. Dart. On April 13, 2020, I spoke to Daniel Arroyo, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Arroyo resides in Division 8, in a Residential Treatment Unit (“RTU”) tier 4G.

2. Mr. Arroyo is on blood pressure medicine and blood thinner. He is a diabetic. He has difficulty breathing, and was on a ventilator before being admitted to the jail (admitted to jail March 1, 2020).

3. There are 38 beds in Mr. Arroyo’s tier. He estimates that 30 are being used. The beds are not far apart and social distancing is not possible.

4. Everyone on Mr. Arroyo’s tier was given a bar of soap several days ago, but the soap is single-use, very small.

5. He was shot in the chest near the heart area four years ago, and takes a medication called Metropol, 25mg, for the resulting condition.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Elizabeth Corrado Elizabeth Corrado

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 5 of 11 PageID #:1538

Affidavit of Elizabeth Corrado on Behalf of Mateusz Zabrzenski
My name is Elizabeth Corrado. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 13, 2020, I spoke to Mateusz Zabrzenski, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Zabrzenski resides in Division 8, in a Residential Treatment Unit (“RTU”) tier 4G.
2. The RTU normally houses 39 detainees, as of April 13 there are 31 detainees, plus guards.
3. Some people were taken off the tier because they were sick.
4. The tier has 4 showers and 4 bathroom stalls.
5. The tier’s day room is crammed. Social distancing is impossible.
6. Detainees got soap 4-5 days ago. Each bar of soap is the size of a debit card. Mr. Zabrzenski used this soap to wash two pairs of socks, which expended it.
7. The dorm is cleaned by one person who volunteered to do so. This happens once a day, or sometimes twice. There is no other cleaning happening.
8. Staff generally wear masks, and yesterday the detainees were given masks. They are surgical masks, and the detainees do not know how to wear them.
9. There has been little information about COVID-19 provided to the detainees—instead they get their information from local news broadcasts.
10. Detainees in the RTU have had to argue with staff to get other detainees tested, even when they are running high fevers.
11. Detainees who are sick with COVID-19 symptoms are removed, but nobody knows what happens to them.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Elizabeth Corrado Elizabeth Corrado

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 6 of 11 PageID #:1539

Affidavit of Jason Hammond on Behalf of Keith Jones

My name is Jason Hammond. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, I spoke to Keith Jones, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Jones is 48 years old. He is residing in Division 8 (DIV08-3G-D5-15) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since November 27, 2018.

2. Mr. Jones has chronic asthma. He uses two inhalers, takes three different blood pressure medications and seasonal medications, as well as medicine for depression, a mood stabilizer and medicine for bipolar disorder.

3. Mr. Jones is living in a dorm with about 27 people. The tier is on quarantine.

4. Social distancing is not possible in the tier. The beds are 3-5 feet apart from one another. The telephones in the tier are two feet apart. Everyone eats next to each other and detainees share tables in the dayroom.

5. Detainees just started receiving soap on the tier. The soap is thin and gets used up quickly. Detainees on the tier just started receiving one mask a day on April 12. Mr. Jones was able to do laundry for the first time in a month last night.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Jason Hammond Jason Hammond

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 7 of 11 PageID #:1540

Affidavit of Jason Hammond on Behalf of Torrenta Woodgett
My name is Jason Hammond. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 13, 2020, I spoke to Torrenta Woodgett, a detainee in the Cook County Jail, who provided me the following information.
1. Mr. Woodgett is 37 years old. He is residing in a single cell in Division 11 (Div11-AA104-1) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since October 15, 2019.
2. Mr. Woodgett has a brain tumor, receives methadone and suffers from asthma. His pituitary gland is producing low levels of cells regulating hormones.
3. Mr. Woodgett’s living area is not on lockdown.
4. Social distancing is not possible in Mr. Woodgett’s housing area. 12 people are allowed out in the common area for 6 hours at a time. Everyone shares showers and bathrooms. Detainees in the tier eat at shared picnic-style tables. People share the telephones, which are located about one foot from one another.
5. Mr. Woodgett started receiving soap recently. He is not receiving cleaning products to clean his individual cell. He first started receiving masks on April 12 – the mask was switched out on April 13.
6. Some guards are wearing gloves but not all.
7. Mr. Woodgett has some symptoms of coronavirus but has not shared that information with anyone and he has not been tested. He is scared to be tested.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 13, 2020 Chicago, Illinois

/s/ Jason Hammond Jason Hammond

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 8 of 11 PageID #:1541

Affidavit of Kara Crutcher on Behalf of Lonnie Sanders

My name is Kara Crutcher. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, I spoke to Lonnie Sanders, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Sanders is 45 years old. He is residing in Division 6 (DIV6-1L-4-1) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since February 29, 2020.

2. Mr. Sanders has asthma and mental health issues – he has depression and anxiety.

3. Until the morning of April 14, Mr. Sanders was living in a two-person cell with another person. Mr. Sanders slept on the floor of the cell.

4. Mr. Sander’s tier has 25 people on it. There were 40 people on it as of yesterday.

5. Social distancing is not possible when using the phones, which are close together, or in the shared bathrooms.

6. Mr. Sanders has received hotel bars of soap but not hand sanitizer.

7. Mr. Sanders does not have cleaning supplies for his cell. He has a rag and washes his floor with water and soap he buys from commissary.

8. The detainees on the tier started receiving masks two days ago.

9. A person on the tier was feeling sick for two days before staff took action. That person then tested positive, and staff moved him off the tier.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Kara Crutcher Kara Crutcher

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 9 of 11 PageID #:1542

Affidavit of Laura Stempel on Behalf of Adam Sneed

My name is Laura Stempel. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 13, 2020, I spoke to Adam Sneed, a detainee in the Cook County Jail, who provided me the following information.

1. Mr. Sneed is 52 years old. He is residing in Division 8 (DIV08-4G-D5-21) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since January 24, 2020.

2. Mr. Sneed has diabetes, high blood pressure, and he smokes.

3. Mr. Sneed is residing in a dorm, and there are three feet between beds. Social distancing is impossible as the detainees share sinks, showers and toilets.

4. On the tier in which he lives, there are 12 people with symptoms; 10 were removed recently and he has not seen them since.

5. Mr. Johnson received a bar of soap on April 9 and a mask on April 12.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Laura Stempel Laura Stempel

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 10 of 11 PageID #:1543

Affidavit of Laura Stempel on Behalf of Charles Wills
My name is Laura Stempel. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 13, 2020, I spoke to Charles Wills, a detainee in the Cook County Jail, who provided me the following information.
1. Mr. Wills is 70 years old. He is residing in Division 8 (DIV08-4G-D5-18) of the Cook County Jail. He is incarcerated on a $10,000 D Bond that he cannot afford to pay. He has been in the Jail since February 23, 2020.
2. Mr. Wills has high blood pressure.
3. Mr. Wills is living in a dorm with 40 other people. There are 3 feet between bunks in the dorm.
4. All detainees in his dorm share showers and toilets. Social distancing is not possible in the dorm.
5. Two detainees were taken out on stretchers recently.
6. Mr. Wills first received access to hand sanitizer on April 12. He still does not have access to soap.
7. Mr. Wills is scared and feels like a rat in a box.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 13, 2020 Chicago, Illinois

/s/ Laura Stempel Laura Stempel

Case: 1:20-cv-02134 Document #: 55-5 Filed: 04/14/20 Page 11 of 11 PageID #:1544

Affidavit of Laura Stempel on Behalf of James Johnson Sr.
My name is Laura Stempel. I am a volunteer investigator at the Chicago Community Bond Fund assisting Plaintiffs’ counsel in Mays v. Dart. On April 14, 2020, I spoke to James Johnson Sr., a detainee in the Cook County Jail, who provided me the following information.
1. Mr. Johnson is 64 years old. He is residing in Division 10 (DIV10-1D-1408-2) of the Cook County Jail. He is incarcerated on a no bond order. He has been in the Jail since September 9, 2019.
2. Mr. Johnson has diabetes, high blood pressure, high cholesterol, and neuropathy in his foot from diabetes. He receives medication of his health conditions and has recently been in the hospital for two weeks each.
3. Mr. Johnson’s tier is on lockdown, so they are only allowed out of their cells for less than 3 hours per day.
4. The toilets and sinks are in the individual cells but all detainees (40 people) share the shower area.
5. Mr. Johnson has access to soap but not to hand sanitizer or regular cleaning supplies for his individual cell.
6. Masks for detainees arrived on the tier on Sunday, April 12. The masks are swapped out every day. The masks are easily torn and hard to sleep in, so Mr. Johnson makes his own face cloth and tries to wear it 24 hours per day.

I am providing this hearsay declaration because of restrictions on visitors and contact with detainees in the Cook County Jail. I declare under penalty of perjury that the foregoing is true and correct.

April 14, 2020 Chicago, Illinois

/s/ Laura Stempel Laura Stempel

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 1 of 17 PageID #:1545
GROUP EXHIBIT F

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 2 of 17 PageID #:1546

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 3 of 17 PageID #:1547

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 4 of 17 PageID #:1548

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 5 of 17 PageID #:1549

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 6 of 17 PageID #:1550

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 7 of 17 PageID #:1551

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 8 of 17 PageID #:1552

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 9 of 17 PageID #:1553

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 10 of 17 PageID #:1554

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 11 of 17 PageID #:1555

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Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 13 of 17 PageID #:1557

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 14 of 17 PageID #:1558

Case: 1:20-cv-02134 Document #: 55-6 Filed: 04/14/20 Page 15 of 17 PageID #:1559

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Case: 1:20-cv-02134 Document #: 55-7 Filed: 04/14/20 Page 1 of 8 PageID #:1562
EXHIBIT G

Case: 1:20-cv-02134 Document #: 55-7 Filed: 04/14/20 Page 2 of 8 PageID #:1563
DECLARATION OF GREGG GONSALVES
I, GREGG S. GONSALVES, upon my personal knowledge, and in accordance with 28 U.S.C. § 1746, declare as follows:
1. I am an epidemiologist at the Yale School of Medicine and School of Public Health. I have worked at the schools of medicine and public health since 2017. Attached as Exhibit A is my CV.
2. COVID-19 is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), a virus closely related to the SARS virus. In its least serious form, COVID-19 can cause illness including fever, cough, and shortness of breath. However, for individuals who become more seriously ill, a common complication is bilateral interstitial pneumonia, which causes partial or total collapse of the lung alveoli, making it difficult or impossible for patients to breathe. Thousands of patients have required hospital-grade respirators, and COVID-19 can progress from a fever to life-threatening pneumonia with what are known as “ground-glass opacities,” a lung abnormality that inhibits breathing.
3. In about 16% of cases of COVID-19, illness is severe including pneumonia with respiratory failure, septic shock, multi organ failure, and even death.
4. Certain populations of people are at particular risk of contracting severe cases of COVID19. People over the age of fifty are at higher risk, with those over seventy at serious risk. As the Center for Disease Control and Prevention has advised, certain medical conditions increase the risk of serious COVID-19 for people of any age. These medical conditions include: those with lung disease, heart disease, diabetes, blood disorders, chronic liver or kidney disease, inherited metabolic disorders, developmental delays, those who are immunocompromised (such as from cancer, HIV, autoimmune diseases), those who have survived strokes, and those who are pregnant.1
5. There is no vaccine against COVID-19 and there is no known cure. No one is immune. The only known effective measures to prevent injuries or deaths resulting from COVID19 are to prevent individuals from being infected with the virus. In fact, young and healthy individuals may be more susceptible than originally thought. New data from the CDC show that up to one-fifth of infected people ages 20-44 have been hospitalized, including 2%-4% who required treatment in an intensive care unit.2
1 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): People Who May Be at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-riskcomplications.html (last accessed Mar. 18, 2020). 2 Centers for Disease Control and Prevention, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020 (Mar. 26, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w Sharon Begley, New analysis breaks down age-group risk for coronavirus — and shows millennials are not invincible (March 18, 2020) https://www.statnews.com/2020/03/18/coronavirus-new-age-analysis-of-risk-confirms-young-adults-not-invincible/
1

Case: 1:20-cv-02134 Document #: 55-7 Filed: 04/14/20 Page 3 of 8 PageID #:1564
6. The number of people infected is growing exponentially. The death toll in, for instance, the nation of Italy, which began experiencing this epidemic about a week earlier than the first diagnosed American cases, rose by 30% overnight in the 24 hours between March 5, 2020 and March 6, 2020.3 On March 17, 2020, Italy reported 345 new coronavirus deaths in the previous 24 hours, an increase in the death toll of 16%.4
7. Similar rapid growth has occurred in the United States. Though testing has been limited, as of the beginning of March, a limited number of cases had been discovered in the United States and few deaths had been reported. Today, more than half a million cases have been discovered in the United States and more than 20,000 people have died.5 Ten thousand of those deaths have occurred in New York state in the past 30 days.6
8. Without effective public health interventions, a COVID-19 response team at the Imperial College in the United Kingdom projected 2.2 million or more deaths in the United States.7
9. For all people, even in advanced countries with very effective health care systems, the case fatality rate of COVID-19 is about ten fold higher than that observed from a severe seasonal influenza. In the more vulnerable groups, both the need for care, including intensive care, and death is much higher than we observe from influenza infection. In the highest risk populations, the case fatality rate is about 15%. For high risk patients who do not die from COVID-19, a prolonged recovery is expected to be required, including the need for extensive rehabilitation for profound deconditioning, loss of digits, neurologic damage, and loss of respiratory capacity that can be expected from such a severe illness.
10. Based on data collected by the Centers for Disease Control and Prevention, World Health Organization, and National Center for Biotechnology Information on the speed at which SARS-CoV-2 has spread since it is first known to have infected a human in November 2019, the virus is estimated to be twice as contagious as influenza.8 Unlike influenza, there are no known vaccines or antiviral medications to prevent or treat infection from COVID-19. Because the coronavirus that causes COVID-19 is passed through respiratory droplets and also appears to be able to survive on inanimate surfaces, it can be transmitted even when an infected person is no longer in the immediate vicinity. Data from China indicates that the average infected person passes the virus on to 2-3 other
3 Worldometer, Italy, https://www.worldometers.info/coronavirus/country/italy/ (last accessed Mar. 26, 2020). 4 Id. 5 Johns Hopkins, Coronavirus Resource Center, https://coronavirus.jhu.edu/us-map (last accessed April 13, 2020). 6 The COVID Tracking Project, New York State, https://covidtracking.com/data/state/new-york (last accessed April 13, 2020). 7 Imperial College COVID-19 Response Team, Impact of non-pharmaceutical Interventions (NPIs) to reduce COVID-19 mortality and healthcare demand (Mar. 16, 2020), https://www.imperial.ac.uk/media/imperialcollege/medicine/sph/ide/gida-fellowships/Imperial-College-COVID19-NPI-modelling-16-03-2020.pdf. 8 Brian Resnick & Christina Animashaun, Why Covid-19 is worse than the flu, in one chart, Vox (Mar. 18, 2020), https://www.vox.com/science-and-health/2020/3/18/21184992/coronavirus-covid-19-flu-comparison-chart.
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people at distances of 3-6 feet.9 Everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus.
11. The current estimated incubation period of COVID-19 is between 2 and 14 days, meaning that a patient who begins showing symptoms today may have been contagious for as long as two weeks prior. The time course of the disease once symptoms appear can be very rapid. A patient’s condition can seriously deteriorate in as little as five days (perhaps sooner) following initial detection of symptoms. The current estimated rate for life-threatening complications is approximately 20%, with a fatality rate estimated at between 1% and 5%. All of these risk assessment numbers, however, appear to be rising.
12. It is clear that, currently, the numbers of people diagnosed reflect only a portion of those likely infected; very few people have been tested, and many are asymptomatic, so they do not even know they should be tested. As a result, thousands of people are likely living day to day and carrying a potentially fatal disease that is easily transmitted—and no one is aware of it.
13. Illinois announced the first confirmed COVID-19 case in the state on January 24, 2020.10 As of April 13, the IL Department of Public Health has confirmed 22,025 cases of COVID-19 in the state.11 As of March 21, 2020, Illinois has been under a mandatory shelter-in-placer order.12 Since then, more than half of the world’s population has been placed under mandatory lockdowns, and cities and institutions across the United States have closed public events, workplaces, and schools in order to curb spread of COVID-19 by limiting person-to-person transmission in group settings.
14. On March 13, 2020 President Donald J. Trump announced a national state of emergency in response to the disease’s outbreak.13
15. On March 11, 2020, the World Health Organization declared a global pandemic based on COVID-19. Citing “deep[] concern[] both by the alarming levels spread and severity, and by the alarming levels of inaction,” it called for countries to take “urgent and aggressive action.”14
9 Knvul Sheikh, Derek Watkins, Jin Wu & Mika Gröndahl, How Bad Will the Coronavirus Outbreak Get? Here are 6 Key Factors, NEW YORK TIMES (Feb. 28, 2020), https://www.nytimes.com/interactive/2020/world/asia/chinacoronavirus-contain.html. 10 Illinois Dpartment of Public Health, Coronavirus Diesease 2019 (COVID-19), https://www.dph.illinois.gov/covid19 (Apr. 13, 2020). 11 Illinois Department of Public Health, COVID-19 Statistics (Apr. 13, 2020), https://www.dph.illinois.gov/covid19/covid19-statistics. 12 Executive Order In Response to COVID-19, No. 8, Mar. 21, 2020, https://www2.illinois.gov/IISNews/21288Gov._Pritzker_Stay_at_Home_Order.pdf 13 President Donald Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamationdeclaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. 14 World Health Organization, WHO Director-General’s opening remarks at the media briefing on COVID-19 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefingon-covid-19---11-march-2020.
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16. The virus is thought to be transmitted mainly between people who are in close contact with one another (within about 6 feet) through respiratory droplets produced when an infected person coughs or sneezes. It also may be possible that a person can get COVID19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. What doctors and experts are calling “community spread” is at the root, and “containment” and “social distancing” are being enforced as the best methods of prevention. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill. Social distancing means, in essence, isolating oneself from other people: working from home, avoiding travel, avoiding crowds and contact with others, not touching common surfaces, and generally staying at least 6-12 feet from other people.
17. In light of COVID-19, individuals in detention facilities are at risk of serious harm. Detention facilities are designed to maximize control of the incarcerated population, not to minimize disease transmission or to efficiently deliver health care. These facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Detention facilities have even greater risk of infectious spread than other enclosed environments because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources. During the H1N1 influenza (“Swine Flu”) epidemic in 2009, jails and prisons were sites of severe outbreaks of viral infection.15
18. People incarcerated in detention facilities have an even greater need to utilize social distancing to protect against rampant rates of infection. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Spaces are poorly ventilated, which promotes highly efficient spread of diseases through droplets.
19. The medical facilities at jails and prisons are almost never sufficiently equipped to handle widespread outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. As an outbreak spreads, medical personnel become sick and do not show up to work. Facilities can become dangerously understaffed with healthcare providers.
20. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited.
15 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, PRISON LEGAL NEWS (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-butdeaths-are-few/.
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21. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions may not be able to receive the care they need. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
22. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, can result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
23. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.16 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the swine flu outbreak in 2009, jails and prisons experienced a disproportionately high number of cases.17 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
24. Due to the crowded conditions and scarcity of sanitary and medical resources, transmission of infectious diseases in jails and prisons, including the Cook County Jail, is incredibly common. These risks are magnified for those diseases, like COVID-19, that are transmitted by respiratory droplets.
25. The experiences of other nations fighting COVID-19 outbreaks demonstrate the particular risk of COVID-19 transmission present in detention facility settings. Prisons in China reported more than 500 cases of COVID-19 spread across four facilities, and these cases affected both correctional officers and incarcerated people.18 Secretary of State Mike Pompeo has called for Iran to release U.S. citizens detained there because of “deeply troubling” “[r]eports that COVID-19 has spread to Iranian prisons,” noting that “[t]heir detention amid increasingly deteriorating conditions defies basic human decency.”19
16 Influenza Outbreaks at Two Correctional Facilities – Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 17 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, PRISON LEGAL NEWS (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-butdeaths-are-few/. 18 Evelyn Cheng & Huileng Tan, China says more than 500 cases of the new coronavirus stemmed from prisons, CNBC (Feb. 20, 2020), https://www.cnbc.com/2020/02/21/coronavirus-china-says-two-prisons-reported-nearly-250cases.html. 19 Michael R. Pompeo, United States Calls for Humanitarian Release of All Wrongfully Detained Americans in Iran, U.S. Dep’t of State (Mar. 10, 2020), https://www.state.gov/united-states-calls-for-humanitarian-release-of-allwrongfully-detained-americans-in-iran/.
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26. As of April 12, 2020, of the 22,025 confirmed cases in the state of Illinois, 306 of those cases have been detainees at the Cook County Jail.20 An addition 181 correctional officers at the jail have been infected.21 The New York Times reported that the Cook County Jail is now the largest single source of coronavirus infections in the United States.22
27. Continued uncontrolled outbreak in the Cook County Jail will impose a significant straing on the larger community and its health care system. COVID-19 threatens the wellbeing of detained individuals, the corrections staff who shuttle between detention facilities and outside communities, and members of those outside communities. Staff, visitors, contractors, and vendors who pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Strains on the medical systems of detention facilities have implications for the outside hospitals and emergency departments on which detention facilities already depend for intensive medical care services. Prison health is public health.
28. I have reviewed the Recidiviz model of expected COVID-19 cases at the Cook County Jail provided by the plaintiffs in this lawsuit to the Court. That model uses local and national data to estimate the projected course of the COVID-19 outbreak at the jail with a low, moderate, and high rate of spread. Among other things, it shows that expected percentage of county hospital beds that will be occupied by detainees of the Cook County jail in the coming weeks. While the estimates vary depending on assumptions about social distancing measures inside of the jail, up to 5% of all county hospital beds may be needed to treat jail detainees if substantial measures to enforce social distancing are not taken. The result is that a significant portion of the county’s hospital capacity will be needed to treat the jail population, even though that population represents a tiny fraction of the county’s total population.
29. The only viable public health strategy available is risk mitigation. In my opinion, from an epidemiological perspective, ensuring that all detainees in Cook County Jail can socially distance from one another is the only way to prevent further, essentially uncontrolled, spread of the virus. Social distancing is necessary for the safety of detained individuals and the broader community as we address the rapid global outbreak of COVID-19.
30. Enabling social distancing at the Jail has a number of valuable effects on public health and public safety: it reduces the chance of spread if the virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, cleaning supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff such that they can continue to ensure the safety of detainees.
20 https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ (last visited Apr. 13, 2020). 21 https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ (last visited Apr. 13, 2020). 22 https://www.nytimes.com/reuters/2020/04/09/us/09reuters-health-coronavirus-usa-prison.html.
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31. The public health crisis requires each and every one of us to re-evaluate how we conduct our lives and care for one another. Institutions responsible for the care and custody of vulnerable populations must take unique steps to “flatten the curve” and slow the spread of this virus. Enforcing social distancing at the Jail will help mitigate the harm to detainees, staff, and the public from the COVID-19 outbreak.
32. Conditions related to COVID-19 are changing rapidly and may change between the time I execute this Declaration and when this matter appears before the Court.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my information and belief.

Date: April 14, 2020

Assistant Professor of Epidemiology (Microbial Diseases) Yale School of Public Health 350 George Street New Haven, CT 06511 gregg.gonsalves@yale.edu

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Dr. Homer D. Venters
10 ½ Jefferson St., Port Washington, NY, 11050 hventers@gmail.com, Phone: 646-734-5994

______________________________________________________ __

HEALTH ADMINISTRATOR

PHYSICIAN

EPIDEMIOLOGIST

Professional Profile
• International leader in provision and improvement of health services to patients with criminal justice involvement.
• Innovator in linking care of the incarcerated to Medicaid, health homes, DSRIPs. • Successful implementer of nations’ first electronic health record, performance
dashboards and health information exchange among pre-trial patients. • Award winning epidemiologist focused on the intersection of health, criminal justice
and human rights in the United States and developing nations. • Human rights leader with experience using forensic science, epidemiology and public
health methods to prevent and document human rights abuses.

Professional Experience
President, Community Oriented Correctional Health Services (COCHS), 1/1/2020present. o Lead COCHS efforts to provide technical assistance, policy guidance and research
regarding correctional health and justice reform. o Oversee operations and programmatic development of COCHS o Serve as primary liaison between COCHS board, funders, staff and partners.
Senior Health and Justice Fellow, Community Oriented Correctional Health Services (COCHS), 12/1/18-12/31/2018 o Lead COCHS efforts to expand Medicaid waivers for funding of care for detained
persons relating to Substance Use and Hepatitis C. o Develop and implement COCHS strategy for promoting non-profit models of
diversion and correctional health care.
Medical/Forensic Expert, 3/2016-present o Provide expert input, review and testimony regarding health care, quality
improvement, electronic health records and data analysis in detention settings.
Director of Programs, Physicians for Human Rights, 3/16-11/18. o Lead medical forensic documentation efforts of mass crimes against Rohingya and
Yazidi people. o Initiate vicarious trauma program. o Expand forensic documentation of mass killings and war crimes. o Develop and support sexual violence capacity development with physicians, nurses
and judges. o Expand documentation of attacks against health staff and facilities in Syria and
Yemen.

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Chief Medical Officer/Assistant Vice President, Correctional Health Services, NYC Health and Hospitals Corporation 8/15-3/17.
o Transitioned entire clinical service (1,400 staff) from a for-profit staffing company model to a new division within NYC H + H.
o Developed new models of mental health and substance abuse care that significantly lowered morbidity and other adverse events.
o Connected patients to local health systems, DSRIP and health homes using approximately $5 million in external funding (grants available on request).
o Reduced overall mortality in the nation’s second largest jail system. o Increased operating budget from $140 million to $160 million. o Implemented nation’s first patient experience, provider engagement and racial
disparities programs for correctional health.
Assistant Commissioner, Correctional Health Services, New York Department of Health and Mental Hygiene, 6/11-8/15.
o Implemented nation’s first electronic medical record and health information exchange for 1,400 staff and 75,000 patients in a jail.
o Developed bilateral agreements and programs with local health homes to identify incarcerated patients and coordinate care.
o Increased operating budget of health service from $115 million to $140 million. o Established surveillance systems for injuries, sexual assault and mental health that
drove new program development and received American Public Health Association Paper of the Year 2014. o Personally care for and reported on over 100 patients injured during violent encounters with jail security staff.
Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 1/10-6/11.
o Directed all aspects of medical care for 75,000 patients annually in 12 jails, including specialty, dental, primary care and emergency response.
o Direct all aspects of response to infectious outbreaks of H1N1, Legionella, Clostridium Difficile.
o Developed new protocols to identify and report on injuries and sexual assault among patients.
Deputy Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 11/08-12/09.
o Developed training program with Montefiore Social internal medicine residency program.
o Directed and delivered health services in 2 jails.
Clinical Attending Physician, Bellevue/NYU Clinic for Survivors of Torture, 10/0712/11.
Clinical Attending Physician, Montefiore Medical Center Bronx NY, Adult Medicine, 1/08-11/09.

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Education and Training
Fellow, Public Health Research, New York University 2007-2009. MS 6/2009 Projects: Health care for detained immigrants, Health Status of African immigrants in NYC. Resident, Social Internal Medicine, Montefiore Medical Center/Albert Einstein
University7/2004- 5/2007. M.D., University of Illinois, Urbana, 12/2003. M.S. Biology, University of Illinois, Urbana, 6/03. B.A. International Relations, Tufts University, Medford, MA, 1989.
Academic Appointments, Licensure
Clinical Associate Professor, New York University College of Global Public Health, 5/18-present.
Clinical Instructor, New York University Langone School of Medicine, 2007-2018.
M.D. New York (2007-present).
Media
TV i24 Crossroads re Suicide in U.S. Jails 8/13/19.
i24 Crossroads re re Life and Death in Rikers Island 6/13/19.
Amanpour & Company, NPR/PBS re Life and Death in Rikers Island 4/15/19.
CNN, Christiane Amanpour re Forensic documentation of mass crimes against Rohingya. 7/11/18.
i24 Crossroads with David Shuster re health crisis among refugees in Syria. 7/6/18.
Canadian Broadcasting Corporation TV with Sylvie Fournier (in French) re crowd control weapons. 5/10/18
i24 Crossroads with David Shuster re Cholera outbreak in Yemen. 2/15/18.
China TV re WHO guidelines on HIV medication access 9/22/17.
Radio/Podcast Morning Edition, NPR re Health Risks of Criminal Justice System. 8/9/19.
Fresh Air with Terry Gross, NPR re Life and Death in Rikers Island, 3/6/19.
Morning Edition, NPR re Life and Death in Rikers Island, 2/22/19.
LeShow with Harry Sherer re forensic documentation of mass crimes in Myanmar, Syria,

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Iraq. 4/17/18.
Print articles and public testimony Oped: Four ways to protect our jails and prisons from coronavirus. The Hill 2/29/20.
Oped: It’s Time to Eliminate the Drunk Tank. The Hill 1/28/20.
Oped: With Kathy Morse. A Visit with my Incarcerated Mother. The Hill 9/24/19.
Oped: With Five Omar Muallim-Ak. The Truth about Suicide Behind Bars is Knowable. The Hill 8/13/19.
Oped: With Katherine McKenzie. Policymakers, provide adequate health care in prisons and detention centers. CNN Opinion, 7/18/19. Oped: Getting serious about preventable deaths and injuries behind bars. The Hill, 7/5/19.
Testimony: Access to Medication Assisted Treatment in Prisons and Jails, New York State Assembly Committee on Alcoholism and Drug Abuse, Assembly Committee on Health, and Assembly Committee on Correction. NY, NY, 11/14/18.
Oped: Attacks in Syria and Yemen are turning disease into a weapon of war, STAT News, 7/7/17.
Testimony: Connecticut Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for prisoners. Hartford CT, 2/3/17.
Testimony: Venters HD, New York Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for juveniles in New York. July 10, 2014. NY NY.
Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY. Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY.
Oped: Venters HD and Keller AS, The Health of Immigrant Detainees. Boston Globe, April 11, 2009.
Testimony: U.S. House of Representatives, House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law: Hearing on Problems with Immigration Detainee Medical Care, June 4, 2008.

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Peer Reviewed Publications
Parmar PK, Leigh J, Venters H, Nelson T. Violence and mortality in the Northern Rakhine State of Myanmar, 2017: results of a quantitative survey of surviving community leaders in Bangladesh. Lancet Planet Health. 2019 Mar;3(3):e144-e153.
Venters H. Notions from Kavanaugh hearings contradict medical facts. Lancet. 10/5/18.
Taylor GP, Castro I, Rebergen C, Rycroft M, Nuwayhid I, Rubenstein L, Tarakji A, Modirzadeh N, Venters H, Jabbour S. Protecting health care in armed conflict: action towards accountability. Lancet. 4/14/18.
Katyal M, Leibowitz R, Venters H. IGRA-Based Screening for Latent Tuberculosis Infection in Persons Newly Incarcerated in New York City Jails. J Correct Health Care. 2018 4/18.
Harocopos A, Allen B, Glowa-Kollisch S, Venters H, Paone D, Macdonald R. The Rikers Island Hot Spotters: Exploring the Needs of the Most Frequently Incarcerated. J Health Care Poor Underserved. 4/28/17.
MacDonald R, Akiyama MJ, Kopolow A, Rosner Z, McGahee W, Joseph R, Jaffer M, Venters H. Feasibility of Treating Hepatitis C in a Transient Jail Population. Open Forum Infect Dis. 7/7/18.
Siegler A, Kaba F, MacDonald R, Venters H. Head Trauma in Jail and Implications for Chronic Traumatic Encephalopathy. J Health Care Poor and Underserved. In Press (May 2017).
Ford E, Kim S, Venters H. Sexual abuse and injury during incarceration reveal the need for reentry trauma screening. Lancet. 4/8/18.
Alex B, Weiss DB, Kaba F, Rosner Z, Lee D, Lim S, Venters H, MacDonald R. Death After Jail Release. J Correct Health Care. 1/17.
Akiyama MJ, Kaba F, Rosner Z, Alper H, Kopolow A, Litwin AH, Venters H, MacDonald R. Correlates of Hepatitis C Virus Infection in the Targeted Testing Program of the New York City Jail System. Public Health Rep. 1/17.
Kalra R, Kollisch SG, MacDonald R, Dickey N, Rosner Z, Venters H. Staff Satisfaction, Ethical Concerns, and Burnout in the New York City Jail Health System. J Correct Health Care. 2016 Oct;22(4):383-392.
Venters H. A Three-Dimensional Action Plan to Raise the Quality of Care of US Correctional Health and Promote Alternatives to Incarceration. Am J Public Health. April 2016.104.
Glowa-Kollisch S, Kaba F, Waters A, Leung YJ, Ford E, Venters H. From Punishment to Treatment: The “Clinical Alternative to Punitive Segregation” (CAPS) Program in New York City Jails. Int J Env Res Public Health. 2016. 13(2),182.
Jaffer M, Ayad J, Tungol JG, MacDonald R, Dickey N, Venters H. Improving Transgender Healthcare in the New York City Correctional System. LGBT Health. 2016 1/8/16.

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Granski M, Keller A, Venters H. Death Rates among Detained Immigrants in the United States. Int J Env Res Public Health. 2015. 11/10/15.
Michelle Martelle, Benjamin Farber, Richard Stazesky, Nathaniel Dickey, Amanda Parsons, Homer Venters. Meaningful Use of an Electronic Health Record in the NYC Jail System. Am J Public Health. 2015. 8/12/15.
Fatos Kaba, Angela Solimo, Jasmine Graves, Sarah Glowa-Kollisch, Allison Vise, Ross MacDonald, Anthony Waters, Zachary Rosner, Nathaniel Dickey, Sonia Angell, Homer Venters. Disparities in Mental Health Referral and Diagnosis in the NYC Jail Mental Health Service. Am J Public Health. 2015. 8/12/15.
Ross MacDonald, Fatos Kaba, Zachary Rosner, Alison Vise, Michelle Skerker, David Weiss, Michelle Brittner, Nathaniel Dickey, Homer Venters. The Rikers Island Hot Spotters. Am J Public Health. 2015. 9/17/15.
Selling Molly Skerker, Nathaniel Dickey, Dana Schonberg, Ross MacDonald, Homer Venters. Improving Antenatal Care for Incarcerated Women: fulfilling the promise of the Sustainable Development Goals. Bulletin of the World Health Organization.2015.
Jasmine Graves, Jessica Steele, Fatos Kaba, Cassandra Ramdath, Zachary Rosner, Ross MacDonald, Nathanial Dickey, Homer Venters. Traumatic Brain Injury and Structural Violence among Adolescent males in the NYC Jail System J Health Care Poor Underserved. 2015;26(2):345-57.
Glowa-Kollisch S, Graves J, Dickey N, MacDonald R, Rosner Z, Waters A, Venters H. DataDriven Human Rights: Using Dual Loyalty Trainings to Promote the Care of Vulnerable Patients in Jail. Health and Human Rights. Online ahead of print, 3/12/15.
Teixeira PA1, Jordan AO, Zaller N, Shah D, Venters H. Health Outcomes for HIV-Infected Persons Released From the New York City Jail System With a Transitional Care-Coordination Plan. 2014. Am J Public Health. 2014 Dec 18.
Selling D, Lee D, Solimo A, Venters H. A Road Not Taken: Substance Abuse Programming in the New York City Jail System. J Correct Health Care. 2014 Nov 17.
Glowa-Kollisch S, Lim S, Summers C, Cohen L, Selling D, Venters H. Beyond the Bridge: Evaluating a Novel Mental Health Program in the New York City Jail System. Am J Public Health. 2014 Sep 11.
Glowa-Kollisch S, Andrade K, Stazesky R, Teixeira P, Kaba F, MacDonald R, Rosner Z, Selling D, Parsons A, Venters H. Data-Driven Human Rights: Using the Electronic Health Record to Promote Human Rights in Jail. Health and Human Rights. 2014. Vol 16 (1): 157-165.
MacDonald R, Rosner Z, Venters H. Case series of exercise-induced rhabdomyolysis in the New York City Jail System. Am J Emerg Med. 2014. Vol 32(5): 446-7.
Bechelli M, Caudy M, Gardner T, Huber A, Mancuso D, Samuels P, Shah T, Venters H. Case Studies from Three States: Breaking Down Silos Between Health Care and Criminal Justice. Health Affairs. 2014. Vol. 3. 33(3):474-81.

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Selling D, Solimo A, Lee D, Horne K, Panove E, Venters H. Surveillance of suicidal and nonsuicidal self-injury in the new York city jail system. J Correct Health Care. 2014. Apr:20(2).
Kaba F, Diamond P, Haque A, MacDonald R, Venters H. Traumatic Brain Injury Among Newly Admitted Adolescents in the New York City Jail System. J Adolesc Health. 2014. Vol 54(5): 6157.
Monga P, Keller A, Venters H. Prevention and Punishment: Barriers to accessing health services for undocumented immigrants in the United States. LAWS. 2014. 3(1).
Kaba F, Lewsi A, Glowa-Kollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.
MacDonald R, Parsons A, Venters H. The Triple Aims of Correctional Health: Patient safety, Population Health and Human Rights. Journal of Health Care for the Poor and Underserved. 2013. 24(3).
Parvez FM, Katyal M, Alper H, Leibowitz R, Venters H. Female sex workers incarcerated in New York City jails: prevalence of sexually transmitted infections and associated risk behaviors. Sexually Transmitted Infections. 89:280-284. 2013.
Brittain J, Axelrod G, Venters H. Deaths in New York City Jails: 2001 – 2009. Am J Public Health. 2013 103:4.
Jordan AO, Cohen LR, Harriman G, Teixeira PA, Cruzado-Quinones J, Venters H. Transitional Care Coordination in New York City Jails: Facilitating Linkages to Care for People with HIV Returning Home from Rikers Island. AIDS Behav. Nov. 2012.
Jaffer M, Kimura C, Venters H. Improving medical care for patients with HIV in New York City jails. J Correct Health Care. 2012 Jul;18(3):246-50.
Ludwig A, Parsons, A, Cohen, L, Venters H. Injury Surveillance in the NYC Jail System, Am J Public Health 2012 Jun;102(6).
Venters H, Keller, AS. Psychiatric Services. (2012) Diversion of Mentally Ill Patients from Court-ordered care to Immigration Detention. Epub. 4/2012.
Venters H, Gany, F. Journal of Immigrant and Minority Health (2011) Mental Health Concerns Among African Immigrants. 13(4): 795-7.
Venters H, Foote M, Keller AS. Journal of Immigrant and Minority Health. (2010) Medical Advocacy on Behalf of Detained Immigrants. 13(3): 625-8.
Venters H, McNeely J, Keller AS. Health and Human Rights. (2010) HIV Screening and Care for Immigration Detainees. 11(2) 91-102.
Venters H, Keller AS. Journal of Health Care for the Poor and Underserved. (2009) The Immigration Detention Health Plan: An Acute Care Model for a Chronic Care Population. 20:951-957.

Case: 1:20-cv-02134 Document #: 55-8 Filed: 04/14/20 Page 8 of 14 PageID #:1577
Venters H, Gany, F. Journal of Immigrant and Minority Health (2009) African Immigrant Health. 4/4/09.
Venters H, Dasch-Goldberg D, Rasmussen A, Keller AS, Human Rights Quarterly (2009) Into the Abyss: Mortality and Morbidity among Detained Immigrant. 31 (2) 474-491.
Venters H, The Lancet (2008) Who is Jack Bauer? 372 (9653).
Venters H, Lainer-Vos J, Razvi A, Crawford J, Shaf’on Venable P, Drucker EM, Am J Public Health (2008) Bringing Health Care Advocacy to a Public Defender’s Office. 98 (11).
Venters H, Razvi AM, Tobia MS, Drucker E. Harm Reduct J. (2006) The case of Scott Ortiz: a clash between criminal justice and public health. Harm Reduct J. 3:21
Cloez-Tayarani I, Petit-Bertron AF, Venters HD, Cavaillon JM (2003) Internat. Immunol. Differential effect of serotonin on cytokine production in lipopolysaccharide-stimulated human peripheral blood mononuclear cells.15,1-8.
Strle K, Zhou JH, Broussard SR, Venters HD, Johnson RW, Freund GG, Dantzer R, Kelley KW, (2002) J. Neuroimmunol. IL-10 promotes survival of microglia without activating Akt. 122, 9-19.
Venters HD, Broussard SR, Zhou JH, Bluthe RM, Freund GG, Johnson RW, Dantzer R, Kelley KW, (2001) J. Neuroimmunol. Tumor necrosis factor(alpha) and insulin-like growth factor-I in the brain: is the whole greater than the sum of its parts? 119, 151-65.
Venters HD, Dantzer R, Kelley KW, (2000) Ann. N. Y. Acad. Sci. Tumor necrosis factor-alpha induces neuronal death by silencing survival signals generated by the type I insulin-like growth factor receptor. 917, 210-20.
Venters HD, Dantzer R, Kelley KW, (2000) Trends. Neurosci. A new concept in neurodegeneration: TNFalpha is a silencer of survival signals. 23, 175-80.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Bonilla LE, Jensen T, Garner HP, Bordayo EZ, Najarian MM, Ala TA, Mason RP, Frey WH 2nd, (1997) Heme from Alzheimer's brain inhibits muscarinic receptor binding via thiyl radical generation. Brain. Res. 764, 93-100.

Case: 1:20-cv-02134 Document #: 55-8 Filed: 04/14/20 Page 9 of 14 PageID #:1578
Kjome JR, Swenson KA, Johnson MN, Bordayo EZ, Anderson LE, Klevan LC, Fraticelli AI, Aldrich SL, Fawcett JR, Venters HD, Ala TA, Frey WH 2nd (1997) Inhibition of antagonist and agonist binding to the human brain muscarinic receptor by arachidonic acid. J. Mol. Neurosci. 10, 209-217.
Honors and Presentations (past 10 years)
Keynote Address, Academic Correctional Health Conference, April 2020, Chapel Hill, North Carolina.
TedMed Presentation, Correctional Health, Boston MA, March 2020.
Finalist, Prose Award for Literature, Social Sciences category for Life and Death in Rikers Island, February, 2020.
Keynote Address, John Howard Association Annual Benefit, November 2019, Chicago IL.
Keynote Address, Kentucky Data Forum, Foundation for a Healthy Kentucky, November 2019, Cincinnati Ohio.
Oral Presentation, Dual loyalty and other human rights concerns for physicians in jails an prisons. Association of Correctional Physicians, Annual meeting. 10/16, Las Vegas.
Oral Presentation, Clinical Alternatives to Punitive Segregation: Reducing self-harm for incarcerated patients with mental illness. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Analysis of Deaths in ICE Custody over 10 Years . American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Medication Assisted Therapies for Opioid Dependence in the New York City Jail System. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, November 2014, New Orleans, LA.
Training, International Committee of the Red Cross and Red Crescent, Medical Director meeting 10/15, Presentation on Human Rights and dual loyalty in correctional health.
Paper of the Year, American Public Health Association. 2014. (Kaba F, Lewis A, GlowaKollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.)
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Oral Presentation, Human rights at Rikers: Dual loyalty among jail health staff. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Poster Presentation, Mental Health Training for Immigration Judges. American Public Health

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Association Annual Meeting, New Orleans LA, 2014.
Distinguished Service Award; Managerial Excellence. Division of Health Care Access and Improvement, NYC DOHMH. 2013.
Oral Presentation, Solitary confinement in the ICE detention system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Self-harm and solitary confinement in the NYC jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Implementing a human rights practice of medicine inside New York City jails. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Human Rights on Rikers: integrating a human rights-based framework for healthcare into NYC’s jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Improving correctional health care: health information exchange and the affordable care act. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Management of Infectious Disease Outbreaks in a Large Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Diversion of Patients from Court Ordered Mental Health Treatment to Immigration Detention. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Initiation of Antiretroviral Therapy for Newly Diagnosed HIV Patients in the NYC Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Medical Case Management in Jail Mental Health Units. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Injury Surveillance in New York City Jails. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Ensuring Adequate Medical Care for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Denver, CO, 2010.
Oral Presentation, HIV Testing in NYC Correctional Facilities. Venters H and Jaffer M, American Public Health Association, Annual Meeting, Denver, CO, 2010.
Oral Presentation, Medical Concerns for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Growth of Immigration Detention Around the Globe. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Role of Hospital Ethics Boards in the Care of Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA,

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November 2009.
Oral Presentation, Health Law and Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Bro Bono Advocacy Award, Advocacy on behalf of detained immigrants. Legal Aid Society of New York, October 2009.
Oral Presentation, Deaths of immigrants detained by Immigration and Customs Enforcement. Venters H, Rasmussen A, Keller A, American Public Health Association Annual Meeting, San Diego CA, October 2008.
Poster Presentation, Death of a detained immigrant with AIDS after withholding of prophylactic Dapsone. Venters H, Rasmussen A, Keller A, Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Poster Presentation, Tuberculosis screening among immigrants in New York City reveals higher rates of positive tuberculosis tests and less health insurance among African immigrants. Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Daniel Leicht Award for Achievement in Social Medicine, Montefiore Medical Center, Department of Family and Social Medicine, 2007.
Poster Presentation, Case Findings of Recent Arestees. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Toronto Canada, April 2007.
Poster Presentation, Bringing Primary Care to Legal Aid in the Bronx. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Los Angeles CA, April 2006.
Poster Presentation, A Missed Opportunity, Diagnosing Multiple Myeloma in the Elderly Hospital Patient. Venters H, Green E., Society of General Internal Medicine Annual Meeting, New Orleans LA, April 2005.
Grants: Program
San Diego County: Review of jail best practices (COCHS), 1/2020, $90,000.
Ryan White Part A - Prison Release Services (PRS). From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/17 (Renewed since 2007). Annual budget $ 2.7 million.
Ryan White Part A - Early Intervention Services- Priority Population Testing. From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/18 (Renewed since 2013). Annual budget $250,000.
Comprehensive HIV Prevention. From HHS to Correctional Health Services (NYC DOHMH), 1/1/1612/31/16. Annual budget $500,000.
HIV/AIDS Initiative for Minority Men. From HHS Office of Minority Health to Correctional Health Services (NYC DOHMH), 9/30/14-8/31/17. Annual budget $375,000.

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SPNS Workforce Initiative, From HRSA SPNS to Correctional Health Services (NYC DOHMH), 8/1/147/31/18. Annual budget $280,000.
SPNS Culturally Appropriate Interventions. From HRSA SPNS to Correctional Health Services (NYC DOHMH), 9/1/13-8/31/18. Annual budget $290,000.
Residential substance abuse treatment. From New York State Division of Criminal Justice Services to Correctional Health Services (NYC DOHMH), 1/1/11-12/31/17. Annual budget $175,000.
Community Action for Pre-Natal Care (CAPC). From NY State Department of Health AIDS Institute to Correctional Health Services (NYC DOHMH), 1/1/05-12/31/10. Annual budget $290,000.
Point of Service Testing. From MAC/AIDS, Elton John and Robin Hood Foundations to Correctional Health Services (NYC DOHMH), 11/1/09-10/31/12. Annual budget $100,000.
Mental Health Collaboration Grant. From USDOJ to Correctional Health Services (NYC DOHMH), 1/1/11-9/30/13. Annual budget $250,000.
Teaching
Instructor, Health in Prisons Course, Bloomberg School of Public Health, Johns Hopkins University, June 2015, June 2014, April 2019.
Instructor, Albert Einstein College of Medicine/Montefiore Social Medicine Program Yearly lectures on Data-driven human rights, 2007-present.
Other Health & Human Rights Activities
DIGNITY Danish Institute Against Torture, Symposium with Egyptian correctional health staff regarding dual loyalty and data-driven human rights. Cairo Egypt, September 20-23, 2014.
Doctors of the World, Physician evaluating survivors of torture, writing affidavits for asylum hearings, with testimony as needed, 7/05-11/18.
United States Peace Corps, Guinea Worm Educator, Togo West Africa, June 1990- December 1991.
-Primary Project; Draconculiasis Eradication. Activities included assessing levels of infection in 8 rural villages and giving prevention presentations to mothers in Ewe and French -Secondary Project; Malaria Prevention.
Books
Venters H. Life and Death in Rikers Island. Johns Hopkins University Press. 2/19.
Chapters in Books
Venters H. Mythbusting Solitary Confinement in Jail. In Solitary Confinement Effects, Practices, and Pathways toward Reform. Oxford University Press, 2020.

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MacDonald R. and Venters H. Correctional Health and Decarceration. In Decarceration. Ernest Drucker, New Press, 2017.

Membership in Professional Organizations
American Public Health Association

French Ewe

Proficient Conversant

Foreign Language Proficiency

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Prior Testimony and Deposition
Benjamin v. Horn, 75 Civ. 3073 (HB) (S.D.N.Y.) as expert for defendants, 2015 Rodgers v. Martin 2:16-cv-00216 (U.S.D.C. N.D.Tx) as expert for plaintiffs, 10/19/17 Fikes v. Abernathy, 2017 7:16-cv-00843-LSC (U.S.D.C. N.D.AL) as expert for plaintiffs 10/30/17. Fernandez v. City of New York, 17-CV-02431 (GHW)(SN) (S.D.NY) as defendant in role as City Employee 4/10/18. Charleston v. Corizon Health INC, 17-3039 (U.S.D.C. E.D. PA) as expert for plaintiffs 4/20/18. Gambler v. Santa Fe County, 1:17-cv-00617 (WJ/KK) as expert for plaintiffs 7/23/18. Hammonds v. Dekalb County AL, CASE NO.: 4:16-cv-01558-KOB as expert for plaintiffs 11/30/2018. Mathiason v. Rio Arriba County NM, No. D-117-CV-2007-00054, as expert for plaintiff 2/7/19. Hutchinson v. Bates et. al. AL, No. 2:17-CV-00185-WKW- GMB, as expert for plaintiff 3/27/19. Lewis v. East Baton Rouge Parish Prison LA, No. 3:16-CV-352-JWD-RLB, as expert for plaintiff 6/24/19. Belcher v. Lopinto, No No. 2:2018cv07368 - Document 36 (E.D. La. 2019) as expert for plaintiffs 12/5/2019.
Fee Schedule
Case review, reports, testimony $500/hour. Site visits and other travel, $2,500 per day (not including travel costs).

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EXHIBIT I

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Curriculum Vitae

Date Prepared: 4 February 2020

Name:

Amir M. Mohareb

Office Address: 100 Cambridge Street, 16th Floor (1661J), Boston, MA 02114

Home Address: Cambridge, MA 02138

Work Phone: +1-617-643-6653

Work Email: amohareb@mgh.harvard.edu

Place of Birth: Birmingham, United Kingdom

Education: 05/2008 05/2013
08/2018

BSc (Honors) MD
Certificate

Chemistry

York University

Medicine

Johns Hopkins University School of Medicine

Program in Clinical Effectiveness Harvard T.H. Chan School of Public Health

Postdoctoral Training:

07/13-06/14 Internship

07/14-06/16 Residency

07/16-06/17 Chief Residency

07/17-06/18

Clinical Fellowship

Internal Medicine Internal Medicine Internal Medicine Infectious Diseases

07/18-06/20

Research Fellowship

Infectious Diseases

Yale-New Haven Hospital
Yale-New Haven Hospital
Yale-New Haven Hospital
Brigham & Women's Hospital/ Massachusetts General Hospital
Brigham & Women's Hospital/ Massachusetts General Hospital

Faculty Academic Appointments: 07/19- present Instructor

Medicine

Harvard Medical School

Appointments at Hospitals/Affiliated Institutions: 07/16-06/17 Assistant in Medicine Medicine 07/16-06/17 Attending Physician Medicine

Yale-New Haven Hospital
West Haven VA Medical Center

3

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07/19- present Assistant in Medicine Medicine (Infectious Diseases)

Massachusetts General Hospital

Other Professional Positions:

2010-11

Research Fellow

Johns Hopkins University School of Medicine and National Center for Preparedness and Catastrophic Event Response

Committee Service:

Local 2016-17

Residency Selection Committee

2016-17

Global Health Committee

Yale University Internal Medicine Residency
Yale University Office of Global Health

Professional Societies:

2016present 2017present 2019present

Society for Refugee Health Providers
Infectious Diseases Society of America
American Association for the Study of Liver Diseases

Member Member Member

Editorial Activities: • Ad hoc Reviewer
Annals of Internal Medicine (commended reviewer)
Open Forum Infectious Diseases
Journal of Immigrant and Minority Health
BMJ Open

Honors and Prizes:

2009

Dean's Research

Scholarship

2010

Dean's Research

Scholarship

Johns Hopkins University School of Medicine
Johns Hopkins University School of Medicine

For research on tuberculosis relapse in Morocco For research on HIV and influenza
4

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2011

National Student

Infectious Diseases Society of For innovative research on

Research Award

America

HIV

2011

Research Day Award Johns Hopkins University,

Top research presentation by a

Department of Emergency

trainee

Medicine

2015

Johnson & Johnson

Yale University Office of

Scholarship to undertake

Global Health

Global Health

international clinical elective

Scholarship

in Kigali, Rwanda

2016

Yale Office-Based

Yale University Department of For clinical innovations in

Medicine Scholarship General Internal Medicine

Refugee Health

and Innovation Fund

2016

Yale Primary Care

Yale University Department of For achievements and

Center Award

Internal Medicine

innovations in primary care

2017

Yogesh Khanal Global Yale University Department of For research, education, and

Health Award

Internal Medicine

clinical leadership in global

health

2019

David Brudnoy

Massachusetts General Hospital For pursuit of coursework in

Scholarship

Division of Infectious Diseases HIV-related research

2020

European Association Young Investigator Award

Highly rated abstract in the

for the Study of the

2020 International Liver

Liver

Congress on hepatitis B

simulation modeling

Report of Funded and Unfunded Projects Current

2018- 2020

AIDS Clinical Research Training Fellowship NIAID T32 AI007433 (PI: Freedberg) Trainee Appointment Fellowship project to evaluate the cost-effectiveness of hepatitis B care in HIV-endemic low- and middle-income countries

Report of Local Teaching and Training Teaching of Students in Courses:
2016-2017 Weekly Case Conference Internal Medicine Clerkship Students

Yale University School of Medicine and West Haven VA Medical Center
4 hours/ week

5

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Formal Teaching of Residents, Clinical Fellows and Research Fellows (post-docs):

2016- 2017 Morning Report Internal Medicine Residents

Yale-New Haven Hospital and West Haven VA Medical Center
4 hours/ week

Clinical Supervisory and Training Responsibilities:
2016-2017 Inpatient Ward Attending Internal Medicine residents

2016-2017 2016- 2017 2019

Ambulatory Internal Medicine Clinic Preceptor Internal Medicine residents Refugee Clinic Preceptor Internal Medicine residents and medical students Visiting Ward Consultant Internal Medicine residents

Yale-New Haven Hospital and West Haven VA Medical Center 12 weeks Yale Primary Care Center 8 hours/ month
Yale Refugee Clinic 8 hours/ month
St. Paul's Teaching Hospital, Addis Ababa, Ethiopia (2 weeks)

Formal Teaching of Peers (e.g., CME and other continuing education courses): No presentations below were sponsored by 3rd parties/outside entities

2016- 2017 Physical and Mental Health of Refugees (CME)

Two presentations
Yale University School of Medicine (New Haven, USA)

Local Invited Presentations: No presentations below were sponsored by 3rd parties/outside entities

2016

Refugee Medicine: Global Crisis and Local Response / Local Conference Presentation

Yale University Office of Global Health: Annual Global Health Day

2017

Refugee Medicine: Local Lens into Global Health / Grand Rounds

Yale University Department of Medicine

2019

Patterns of Exclusion: HIV Travel Ban to Refugees and Asylum Seekers

Massachusetts General Hospital, Division of Infectious Diseases, Weekly HIV

Conference

2019

Border Closures and Family Separation: Lessons from the HIV Travel Ban

Massachusetts General Hospital, HIV Online Provider education (HOPE) Conference

2019

Border Closures and Family Separation: Lessons from the HIV Travel Ban

Brigham & Women's Hospital, Division of Infectious Diseases, Weekly HIV Conference

6

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Report of Regional, National and International Invited Teaching and Presentations No presentations below were sponsored by 3rd parties/outside entities Regional

2016

Local Global Health: Evaluation of Asylum Seekers, Care for Refugees

Invited Presentation in Society for General Internal Medicine, New England Regional

Conference

New Haven, USA

International

2018

Simulation Modeling in the Elimination of Hepatitis B

Invited presentation at the Hepatitis B Research Symposium organized by Programme

PACCI

Grand Bassam, Côte d'Ivoire

2019

Zika Virus: Implications for Africa

Invited presentation at the 4th Annual Advanced Course in Infectious Diseases and

Tropical Medicine organized by Aklilu Lemma Institute of Pathobiology (Addis Ababa

University), Ulleval Centre for Imported and Tropical Diseases (Oslo University), and

Black Lion Teaching Hospital (Addis Ababa)

Addis Ababa, Ethiopia

Report of Clinical Activities and Innovations Current Licensure and Certification:

2014 2016 2019 2019present

Diplomate, National Board of Medical Examiners Diplomate, American Board of Internal Medicine Diplomate, American Board of Internal Medicine, specialty of Infectious Diseases Unrestricted Medical License in Massachusetts

Practice Activities:

2014- 2017 Clinic Coordinator

2016- 2017
2016- 2017
2016- 2017
2019present

Inpatient Ward Attending Physician
Ambulatory Clinic Attending Physician
Ambulatory Clinic Attending Physician
Attending Physician

Yale Refugee Clinic
Yale-New Haven Hospital and West Haven VA Medical Center Yale Primary Care Center
Yale Refugee Clinic
Infectious Diseases Consult Service, MGH

Evening clinic (4 hours / week) Inpatient teaching service (12 weeks)
Resident clinic (8 hours/ month)
Evening clinic (8 hours/ month)
6 weeks/ year

7

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Clinical Innovations:

Yale Refugee Clinic Student Navigator Program (New Haven, USA)

I designed and implemented a patient navigator program at the Yale University School of Medicine wherein medical student volunteers are paired with newly resettled refugee families to assist them in navigating the health system. Student navigators provided counseling for medication and appointment adherence and learned core lessons about primary care and refugee health. This program was supported by an institutional grant and was presented at the North American Refugee Health Conference 2017.

Adaptation of WHO Dengue Guidelines to Pacific Islands (Yap, Micronesia)

From September- October 2019, I was deployed to Yap, Micronesia, to provide emergency clinical assistance and humanitarian support during a large-scale Dengue outbreak. I provided multiple layers of support, including clinical care for critically ill patients, daily rounds with medical and nursing staff, community outreach and vector control, and participation in weekly public health and response meetings. I led in adapting and implementing the WHO Dengue Guidelines within the local health system's resource constraints.

Report of Education of Patients and Service to the Community No presentations below were sponsored by 3rd parties/outside entities Activities

2016- 2017

Yale Refugee Clinic and Integrated Refugee and Immigrant Services (New Haven, USA)
I helped organize community educational sessions for newly resettled refugees on topics such as smoking cessation, prenatal health, women's health, and mental health. The sessions were localized in the offices of a local refugee resettlement agency. This program was presented at the North American Refugee Health Conference (2018- 2019).

Recognition:

2017 Interviewed in Resettled: New Haven’s Refugee Community (Documentary) Available at: https://vimeo.com/216225933

Produced by Politic.

2017 Interviewed in, "Caring for New Haven's Refugees." (Article)

Yale Medicine

Magazine. Spring

2017, Vol 51, No. 3.

2018 Interviewed in, "What's The Responsibility Of Doctors When It Comes National Public

To Yemen?" 21 November 2018. Available at:

Radio (NPR)

https://www.npr.org/sections/goatsandsoda/2018/11/21/670062517/whats-

the-responsibility-of-doctors-when-it-comes-to-yemen

2018 Publication featured in hospital and medical school press release: "Two physicians condemn use of disease and famine as weapons of war in Yemen." (Press Release). 21 November 2018. Available at: https://hms.harvard.edu/news/manmade-medical-disasters

Harvard Medical School and MGH Office of Communications

https://www.massgeneral.org/News/pressrelease.aspx?id=231

8

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2018 Interviewed in New England Journal of Medicine Audio Interview (podcast). 27 December 2018. Available at www.nejm.org

New England Journal of Medicine

Report of Scholarship
ORCID: 0000-0002-3761-6154 Peer-Reviewed Scholarship in print or other media:
Research Investigations
1. Jackson DR, Mohareb A, MacNeil J, Razul MS, Marangoni DG, and Poole PH. Simulations of a lattice model of two-headed linear amphiphiles: influence of amphiphile asymmetry. J Chem Phys. 2011 May 28;134(20):204503. PMID: 21639452.

2. Dugas AF, Hsieh YH, Levin SR, Pines JM, Mareiniss DP, Mohareb A, Gaydos CA, Perl TM, and Rothman RE. Google Flu Trends: correlation with emergency department influenza rates and crowding metrics. Clin Infect Dis. 2012 Feb 15;54(4):463-9. PMID: 22230244.

3. Korley FK, Morton MJ, Hill PM, Mundangepfupfu T, Zhou T, Mohareb AM, and Rothman RE. Agreement between routine emergency department care and clinical decision support recommended care in patients evaluated for mild traumatic brain injury. Acad Emerg Med. 2013 May;20(5):463-9. PMID: 23672360.

4. Mohareb AM, Rothman RE, and Hsieh YH. Emergency department (ED) utilization by HIV-infected ED patients in the United States in 2009 and 2010 - a national estimation. HIV Med. 2013 Nov;14(10):605-13. PMID: 23773723.

5. Fournier R, and Mohareb A. Optimizing molecular properties using a relative index of thermodynamic stability and global optimization techniques. J Chem Phys. 2016 Jan 14;144(2):024114. PMID: 26772561.

6. Mohareb AM, Dugas AF, and Hsieh YH. Changing epidemiology and management of infectious diseases in US EDs. Am J Emerg Med. 2016 Jun;34(6):1059-65. PMID: 27041249
Other peer-reviewed scholarship 1. Stahl M, Mohareb AM, Lee AI, Federman DG, Siddon AJ, and Spelman J. Multi-system complications of hypereosinophilia. Am J Hematol. 2016 Jun;91(4):444-7. PMID: 26700720.
2. Raja J, Mohareb AM, and Bilori B. Recurrent urinary tract infections in an adult with a duplicated renal collecting system. Radiol Case Rep. 2016 Dec;11(4):328-331. PMID: 27920854.
3. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, and Meyer JP. Answer to December 2017 Photo Quiz. J Clin Microbiol. 2017 Dec;55(12):3568. PMID: 29180506.

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Case: 1:20-cv-02134 Document #: 55-9 Filed: 04/14/20 Page 9 of 9 PageID #:1592
4. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, and Meyer JP. Photo Quiz: Peripheral blood smear in a Ugandan refugee. J Clin Microbiol. 2017 Dec;55(12):3313-3314. PMID: 29180502.
5. Mohareb AM, and Ivers LC. Disease and famine as weapons of war in Yemen. N Engl J Med. 2019 Jan 10;380(2):109-111. PMID: 30462588
Non-peer reviewed scholarship in print or other media:
Reviews, chapters, monographs and editorials 1. Mohareb AM, Walensky RP, Hyle EP. Correcting the contradictions: Immigration policy and HIV. Health Affairs Blog. November 8, 2019. doi:10.1377/hblog20191108.169361
2. Mohareb AM, and Hyle EP. HIV and Other Sexually Transmitted Infections: Considerations for Refugees. In: Annamalai A, ed. Refugee Health Care: An Essential Guide, 2nd Edition. Springer: In press.
Abstracts, Poster Presentations and Exhibits Presented at Professional Meetings:
1. Mohareb AM, Ikuta K, Kothari D, Cheng C, Annamalai A. Rate of completion of immunization series in a cohort of refugees in Connecticut, USA. Podium presentation in the North American Refugee Health Conference, Toronto, Canada. June 2015.
2. Gunawan F, Bourdillon P, Mohareb AM, Godier-Furnemont A, Brown B, Annamalai A. Piloting a patient navigator program for refugee patients at an academic primary care center. Poster at the North American Refugee Health Conference, Toronto, Canada. June 2017.
3. Cheng F, Mohareb AM, Shackleford S, Kramer E, Fox S, Jepson L, Riffle R, Bisset A, Brown C. Development and piloting of a multi-disciplinary refugee health literacy program. Poster at the North American Refugee Health Conference, Toronto, Canada. June 2017.
4. Brown B, Mohareb AM, Gunawan F, Annamalai A. Assessing Utility of Routine Urinalysis in the refugee health examination. Poster at the North American Refugee Health Conference, Toronto, Canada. June 2017.
5. Mohareb AM, Brown B, Gunawan F, Datta R, Annamalai A, Barakat L. Latent tuberculosis infection in a cohort of refugee patients resettling in New England. Poster at IDWeek, San Diego, USA. October 2017.
6. Mohareb AM, Kim AY, Boyd A, Noubary F, Kouamé MG, Eholié DP, Freedberg KA, Walensky RP, Hyle EP. A novel microsimulation model of chronic hepatitis b (HBV): validation of HBV viral dynamics and cumulative incidence of hepatocellular carcinoma. To be presented at: International Liver Congress, London, United Kingdom. April 15-19, 2020.
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EXHIBIT J
Submitted in native Excel format to the Court and Counsel via email

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EXHIBIT K

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL

Case No. 5:13-cv-0444-VAP-OPx Title Quinton Gray v. County of Riverside

Date April 14, 2020

Present: The Honorable VIRGINIA A. PHILLIPS, CHIEF UNITED STATES DISTRICT JUDGE

CHRISTINE CHUNG Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings: (IN CHAMBERS) MINUTE ORDER GRANTING “EMERGENCY MOTION TO ENFORCE CONSENT DECREE” [DKT. 177]

On April 6, 2020, Plaintiff Quinton Gray (“Plaintiff”) filed a document captioned “Emergency Motion1 to Enforce Consent Decree.” (“Motion,” Dkt. 177). Pursuant to this Court’s April 8, 2020 Minute Order, (Dkt. 182), Defendant County of Riverside (“Defendant”) opposed the Motion on April 10, 2020 (“Opp.,” Dkt. 183). After considering all papers submitted in support of, and in opposition to, the Motion, as well as the arguments advanced during the telephonic hearing on April 13, 2020, the Court GRANTS the Motion.
In 2016, the Parties entered into a Consent Decree “to ensure the provision of constitutional health care and to ensure non-discrimination for inmates with disabilities in the Riverside County Jails.” (Dkt. 173 ¶ 1). The plaintiff class includes three distinct subclasses: the medical subclass, which comprises “[a]ll prisoners who are now, or will in the future be, subjected to the medical care policies and practices of the Riverside

1 The Court notes that an “Emergency Motion” is procedurally improper. Plaintiff should have filed an ex parte application to shorten time for hearing on a motion, in conformance with Local Rule 7-19. In the interests of justice, the Court will treat Plaintiff’s Motion as though it had been filed properly.

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Jails”; the mental health subclass, which comprises “[a]ll prisoners who are now, or will in the future be, subjected to the mental health care policies and practices of the Riverside Jails”; and the disability subclass, which comprises “all prisoners who are now, or will be in the future, subjected to policies and practices of the Riverside jails regarding specialized or sheltered housing for prisoners due to their mobility impairments and need for assistive devices, and the provision and confiscation of accommodations for prisoners with mobility impairments[.]” (Dkt. 173 ¶ 3).
The Parties to the Consent Decree negotiated a Remedial Plan, which “is designed to meet the minimum level of health care necessary to fulfill Defendant’s obligations under the Eighth and Fourteenth Amendments, as well as to ensure nondiscrimination against inmates with disabilities in the areas addressed by the Plan, as required by the ADA and Section 504 of the Rehabilitation Act.” (Dkt. 173 ¶ 9). In light of the coronavirus (“COVID-19”) pandemic2, “Plaintiffs seek to enforce the Consent Decree by requiring the County to submit a plan to the Court to implement the Governor’s order for physical distancing for all Californians housed in the jails and to provide sanitation and other essential services generally accepted as necessary in correctional facilities to provide for the basic health needs of incarcerated people.” (Motion at 3-4).
As Defendant argues, the Consent Decree specifies a dispute resolution process which provides that the Parties first conduct negotiations to resolve informally matters in dispute, then, if they are unable to resolve the dispute, to request that the Relevant Court experts evaluate the issue and prepare a report. Following preparation of this report, if the parties still are unable to resolve the issue, they may request mediation with Judge Raul Ramirez. Only after having mediated are the parties to file a motion for relief with this Court. (Dkt. 173 ¶¶ 26–29). Here, the parties have conducted the first two steps, but have not yet mediated. Nevertheless, “[g]iven the urgent nature of the proceedings, Plaintiffs request the Court modify the Consent Decree to allow for urgent appeal for enforcement directly to the Court.” (Motion at 17 n.2).

2 The pandemic has caused unprecedented disruption to daily life. On March 13, 2020, the President of the United States declared a National Emergency in response to the Coronavirus Disease- 2019 (“COVID-19”) pandemic pursuant to the National Emergencies Act (50 U.S.C. § 1601, et seq.). California Governor Gavin Newson has declared a state of emergency in response to the COVID-19 outbreak and, in his March 19, 2020 Executive Order N-33-20, “require[d] physical distancing to keep Californians at least six feet apart at all times and to prepare hospitals and health care workers for the coming surge in cases.” (Motion at 2).

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The Court finds good cause to modify the Consent Decree to permit appeal to this Court. “[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. . . . A party seeking modification of a consent decree may meet its initial burden by showing either a significant change either in factual conditions or in law.”” Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383–84 (1992). The party seeking modification need not prove the change in circumstance was “unforeseen and unforeseeable” at the time of entering into the consent decree, but “[o]rdinarily, . . . modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.” Id. at 385 (emphasis added). Here, clearly, the emergency resulting from the pandemic constitutes a “significant change in circumstances” that was not actually foreseen at the time the parties entered into the Consent Decree. Id. at 383.
The parties therefore meet the standard to modify the Consent Decree to permit appeal to this Court. In light of the urgency of the matter, the Court orders a two-track dispute resolution mechanism. The Parties are to proceed with mediation before Judge Ramirez on April 17, 2020, or an earlier date, if possible. (See Opp. at 10). The Court simultaneously assumes jurisdiction to enforce the Consent Decree to the extent specified in this Order.
The Court next turns to Defendant’s obligations under the Consent Decree. Plaintiff seeks to enforce the Consent Decree’s mandate to “meet the minimum level of health care necessary to fulfill Defendant’s obligations under the Eighth and Fourteenth Amendments,” (Dkt. 173 ¶ 9), by ensuring that Defendants implement the physical distancing recommendations made by the Court’s experts, (see Dkt. 178, Ex. J, Allen Expert Report, ¶¶ 9-10, 14-16; Dkt. 178, Ex. K, Gage Expert Report, ¶¶ 5-10.). Plaintiff argues that the County has several options available to limit the spread of the disease within the jails, including transferring prisoners to new, currently empty, John J. Benoit Detention Center (“JJBDC”) in Indio, California; relocating particularly vulnerable prisoners; and even release people to allow for physical distancing. (Motion at 4). At the hearing, Defendant did not have information regarding conditions in the existing county jail facilities, insisted that moving prisoners to a newly completed, empty jail in Indio was not feasible, and admitted that it had not researched alternative housing options such as recreation centers, halfway houses, and hotels. Rather than having created a plan to safeguard those most vulnerable to the COVID-19 virus, Defendant conceded that it has not conducted an analysis of its own records to identify particularly vulnerable prisoners. It also has not conducted an analysis of its jail population to determine whether there are any low-level offenders who might be eligible for early release.

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Despite Defendant’s insistence that conditions in the Riverside County jails are compliant with public health recommendations regarding social distancing, its counsel lacked information to respond to the Court’s questions regarding the ability to maintain 6 feet distance between all prisoners in the jail, at all times, its plan for doing so, the size of cells and dormitories, and the number of prisoners per room.
Defendant failed to provide satisfactory information about the feasibility of transfer of prisoners to other jail or non-jail facilities, including transfers of prisoners currently confined in crowded jails to the new, empty, John J. Benoit Detention Center (“JJBDC”) in Indio, California. The County states that it is “not-yet-ready to be populated” but provides no details as to why. (Opp. at 13). The County stated at the hearing that the facility was completed in February 2020, but maintained that it is not yet ready for prisoners. In their papers and at the hearing, Defendant argued that “[t]he Sheriff’s Department is currently in the midst of a ninety day ‘transition period’ of the facility to determine whether any issues arise that will need to be resolved before JJBDC can be populated with inmates.” (Dkt. 183-4, “Graves Decl.” ¶ 4). The County states that the technology used in the JJBDC facility differs from that of other County facilities, but did not explain, in its papers or at the hearing, why this would prevent the transfer of inmates in an emergency situation. (Graves Decl. ¶ 5).
Should the County be unable to implement adequate social distancing within its existing jail facilities and take other necessary steps to decrease risk of infection, this Court has the authority to order the transfer of prisoners to different facilities. Under California law, the Sheriff has the authority to relocate prisoners to respond to emergency situations:
In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution. He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.
Other courts, including the Superior Court for the County of Sacramento County, already have ordered the Sheriff to use its authority under Cal. Gov't Code § 8658 to respond to the coronavirus emergency. See Order Authorizing Sacramento County Sheriff’s Department to Grant Release (Cal. Super. Ct., Sac. Cty., Mar. 25, 2020).
Defendant argues that the Prison Litigation Reform Act (“PLRA”) precludes this Court from ordering the release of prisoners. Even assuming this is true, nothing in the

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PLRA prohibits a district judge from ordering the transfer of prisoners in response to violations of their constitutional rights, as the district court did in Brown v. Plata, 2013 WL 3200587, No. C01-1351 TEH (N.D. Cal. June 24, 2013), nor would it prohibit the Court from ordering the Sheriff to use his authority under § 8658 to transfer prisoners.
“[A]n order to transfer any single inmate out of a prison to correct the violation of a constitutional right” where a “transfer was necessary for the inmate to obtain appropriate medical care” is not a “prisoner release order,” but rather a transfer. Plata v. Brown, 2013 WL 3200587 at *8. The same is true of “a policy that would result in transfer of a large group of inmates.” Id. Indeed, several potential courses of action qualify as “transfer” for the purposes of the PLRA. Relocation to halfway houses, for example, is a “transfer” rather than “release.” The PLRA defines a “residential reentry center” as a form of “prerelease custody.” See 18 U.S.C. § 3624(g)(2)(B) (“A prisoner placed in prerelease custody pursuant to this subsection who is placed at a residential reentry center shall be subject to such conditions as the Director of the Bureau of Prisons [(BOP)] determines appropriate.”). Ninth Circuit case law assumes that a person in a “residential reentry center” is a “prisoner” and subject to BOP control. See, e.g., Bottinelli v. Salazar, 929 F.3d 1196, 1200 (9th Cir. 2019) (citing 18 U.S.C. § 3624(c)(1) as “requiring that the BOP, ‘to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term’ in prerelease custody”).
In Plata v. Brown, the court declined to decide which standard governs the court’s review of such requests for transfer, finding that the Plata plaintiffs could satisfy the most burdensome standard. That standard “would require [them] to demonstrate that the [transfer] policy must be enforced because failure to do so would result in deliberate indifference under the Eighth Amendment.” Id. at *10. The Court makes no determination here as to whether Plaintiff has met this standard, but notes that the County’s recitation of “aggressive and swift” measures it has taken in response to COVID-19, none of which concern jails, suggests that the County’s failure to act to protect inmates does indeed constitute deliberate indifference. (Opp. at 16). The County’s assurances that it has provided unlimited free soap to prisoners and advised prisoners to remain physically distant—without establishing that it is physically possible to do so—is unlikely to be sufficient to defeat a claim of deliberate indifference (or sufficient to defeat the request to transfer prisoners for health reasons).
In sum, Defendant has failed to demonstrate that it is currently taking adequate precautions to protect the health of the prisoners in the county jails. Plaintiff’s request that Defendant be required “to submit a plan to the Court to implement the Governor’s order for physical distancing for all Californians housed in the jails” (Motion at 3-4), is therefore GRANTED.

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Plaintiffs are instructed to submit a proposed order detailing the findings and outstanding questions from the April 13, 2020 hearing no later than 4:00 p.m. on April 15, 2020. Prior to submission to the Court, Plaintiff shall share the proposed order with Defendant, who may approve the it as to form and content or submit objections to Court thereafter.
IT IS SO ORDERED.

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 Case: 1:20-cv-02134 Document #: 42 Filed: 04/07/20 Page 1 of 20 PageID #:1030

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf of a class of similarly situated persons; and JUDIA JACKSON, as next friend of KENNETH FOSTER, Individually and on behalf of a class of similarly situated persons,
Plaintiffs-Petitioners,
v.
THOMAS DART, Sheriff of Cook County, Defendant-Respondent.

) ) ) ) ) ) ) Case No. 1:20-cv-02134 ) ) ) )

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER

Plaintiffs Anthony Mays and Kenneth Foster, by his next friend, submit this brief in

compliance with the court’s instructions at the close of the hearing on April 7, 2020, on their motion

for a temporary restraining order. Plaintiffs (a) explain the mental-state requirement for the Class’s

claims under 42 U.S.C. § 1983; (b) explain why Subclass A Petitioners’ claims are not barred by the

exhaustion doctrine; and (c) advise the Court whether electronic home monitoring constitutes

“custody” under Illinois law.

SELECTED POINTS OF FACT FOR PLAINTIFFS’ LEGAL ARGUMENTS

The evidence supporting Plaintiffs’ motion shows that the Sheriff’s policies are not sufficient

to provide “objectively reasonable” conditions for detainees who are exposed to the massive

outbreak of COVID-19. The policies—facially and as a matter of implementation—fail to comport

with CDC Guidance, including governing correctional facilities, and put the lives of detainees at risk.

This renders an emergency Temporary Restraining Order (T.R.O.) both proper and necessary, under

the Fourteenth Amendment. The deficient policies are:

--Medical Triage of the Vulnerable: The Cook County Sheriff’s Office (CCSO) policies, as

evidenced by the “Coronavirus Operation Plan” (“Operation Plan”), Ex. P to Defendant’s Response

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to Plaintiffs’ Motion for a Temporary Restraining Order, and by “Michael Miller’s Declaration” (Miller Decl.) and supporting exhibits, Ex. H to the Defendant’s Response, do not provide a process by which the Sheriff identifies detainees who are in high risk categories for contracting serious COVID 19, either because of age or pre-existing medical conditions. They also do not provide for any measures to separate these vulnerable detainees from others who have the virus or are suspected to have the virus. The Sheriff’s policy failures are supported by the declarations of the named plaintiffs, both of whom are medically vulnerable (Foster with lung cancer, Complaint Ex. F; Mays with diabetes and a heart condition, Compl. Ex. D). Neither have received particular protections as a result of their unique susceptibility to a lethal disease. The same is true of other detainees in divisions throughout the Jail,1 evidenced by the declarations submitted with the Complaint.2 --Social Distancing: The CCSO policies do not adequately provide for social distancing. The CDC recommends individuals keep a spatial distance of 6 feet from other people, not gather in groups, and stay out of crowded places and avoid mass gatherings.3 This is in line with the Governor’s stay-

1

E.g., Anthony Mays (Complaint Ex. D) (Mr. Mays is a detainee housed in Division 8, tier 3F, with

Diabetes and a heart condition); Vincent Stewart (Compl. Ex. E) (Mr. Stewart is a detainee housed in

Division 8 with Hodgkin’s Lymphona); Kenneth Foster (Compl. Ex. F) (Mr. Foster is a detainee housed in

Division 2 with Stage 4 Stomach Cancer, Lung-Sarcoidosis, high blood pressure, asthma, and bronchitis);

Charles James Wimberly (Compl. Ex. H) (Mr. Wimberly is a detainee housed in Division 6 with bronchitis);

Terrance Robinson (Compl. Ex. J) (Mr. Robinson is a detainee housed in Division 6 with bronchitis);

Brandon Mathis (Compl. Ex. K) (Mr. Mathis is a detainee housed in Division 11 who previously suffered a

gunshot wound to the throat that required reconstructive surgery, and he had open heart surgery as a child;

he currently suffers from blood clots in his feet); Sean Alexander (Compl. Ex. L) (Mr. Alexander is a detainee

housed in Division 11 with sickle cell anemia); Christopher Zeigler (Compl. Ex. M) (Mr. Zeigler is a detainee

housed in Division 6 with MRSA [Methicillin-resistant Staphylococcus aureus] and a compromised immune

system); Clayborn Smith (ECF 36-2) (Mr. Smith is a detainee housed in Division 11, tier CF with chronic

asthma).

2

It is well established that hearsay testimony is admissible in preliminary injunction hearings. See SEC

v. Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991).

3

Centers on Disease Control and Prevention, “Coronavirus Disease 2019 (COVID-19): Social

Distancing, Quarantine, and Isolation,” https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/social-distancing.html (last visited Apr. 7, 2020); Centers on Disease Control, Interim Guidance on

Management of Coronavirus Disease in Correctional Detention Facilities,

2

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at-home order.4 The lack of social distancing contributes to the spread of the disease, especially for people who are at higher risk of infection, as the CDC makes clear.5 There is no CCSO policy mandating social distancing for detainees in the Jail. The Sheriff’s policy is ostensibly to try to fill every tier to no more than 50% of capacity—it is not, in fact, in effect. Miller Decl. ¶ 18(d) (“Providing a single cell to every detainee, or if in a dorm setting not exceeding 50% occupancy, is an on-going process, subject to our ability to open previous closed areas safely and securely.”) (emphasis added). Implementing social distancing is not ultimately feasible given the current population size.6 Puisis makes this clear: “The County of Cook is forcing over 4,700 people to live in congregate living conditions at the Cook County…The current CDC recommendations for social distancing and frequent handwashing measures, which are the only measures available to protect against infection, are not possible in the current correctional environment at the Jail.” Puisis Dec. (Ex. ) at 23, 25.7 Michael Miller’s chart confirms that the divisions remain at more than 80% capacity in much

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html (last visited Apr. 7, 2020).

4

Executive Order in Response to COVID-19 (Mar. 20, 2020) (Executive Order), pg. 1-5, available at

https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-10.pdf (last visited Apr. 6,

2020); see also “Read Pritzker’s Full Statement Announcing Illinois Stay-at-Home Order Extension,” NBC5

(Mar. 31, 2020), https://www.nbcchicago.com/news/local/read-pritzkers-full-statement-announcing-illinois-

stay-at-home-order-extension/2247976/ (last visited Apr. 4, 2020).

5

Centers on Disease Control and Prevention, “Coronavirus Disease 2019 (COVID-19): Social

Distancing, Quarantine, and Isolation, supra note 3 ( “Since people can spread the virus before they know

they are sick, it is important to stay away from others when possible, even if you have no symptoms. Social

distancing is especially important for people who are at higher risk of getting very sick.”); Donald G. McNeil

Jr., “Restrictions are Slowing Coronavirus Infections, New Data Suggest,” N.Y. Times (Mar. 30, 2020),

available at https://www.nytimes.com/ 2020/03/30/health/coronavirus-restrictions-fevers.html (last visited

Apr. 6, 2020).

6

Dart has publicly admitted to having a “crowding issue.” Shannon Heffernan, “Sheriff Dart Attacks

Pritzker for Refusing New Inmates in State Prisons.” WBEZ (Mar. 27, 2020)

https://www.wbez.org/stories/sheriff-tom-dart-attacks-gov-pritzker-for-refusing-new-inmates-in-state-

prisons/c66148e3-8ce6-4786-be2b-ea739d008191

7

On March 30, 2020, following the death of a COVID-19 patient at Stateville Correctional Center,

Dr. Nzibe Ezike, Director of the Illinois Department of Public Health, acknowledged the heightened risk

posed by correctional settings and the inability to conform them to public health standards: “Congregate

3

Case: 1:20-cv-02134 Document #: 42 Filed: 04/07/20 Page 4 of 20 PageID #:1033
of the Jail. Ex. 1 to Miller Decl. at 4-9. Cook County Sheriff Correctional Officer, David Evans, backs this up. Evans Decl., ECF 36-1, ¶ 8. Detainees affirm that they are living in packed tiers.8 Even if the jail divisions were driven to 50% capacity on the tiers, achieving that level “in a dorm setting” will not result in the degree of social distance that the CDC requires. See Complaint, ¶ 12-14 (photos of dormitories).

settings such as Stateville, any other correctional center, pose unique challenges in stopping the spread of disease and protecting the health of individuals who live and work there. The options for isolation of COVID-19 cases are limited in this focused setting and it becomes very difficult depending on the size of the facility and the population that’s already in the facility. Ideally, all cases should be isolated individually and close contact should be quarantined individually.” See “Daily Coronavirus Briefing from Illinois Health Officials, NBC 5 https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefing-fromillinois-health-officials/2234359/ (last visited Apr. 7, 2020).

8

E.g., Anthony Mays (Complaint Ex. D) (“Each cell on his tier [in Division 8] has two concrete beds,

spaced two feet apart.”); Kenneth Foster (Compl. Ex. F) (“Social distancing is not possible in the division

[Division 2]. Everyone on Mr. Foster’s tier shared a shower and bathroom area. Everyone is together all the

time and there is very little privacy.”); Charles James Wimberly (Compl. Ex. H) (“The detainees in the

division [Division 6] have a shared shower area.”); Carver Young (Compl. Ex. I) (“I was housed in a

congregate living situation, similar to a giant gymnasium. There were 350 to 400 people housed there with

me. We spent all day in this room [Division 2, dorm 4]. . . . The bunks were approximately 1 foot apart. I

slept on the lower bunk. It was impossible to socially distance or be separate from other people.”); Brandon

Mathis (Compl. Ex. K) (“Social distancing is not possible in the division [Division 11]. All detainees are close

together when they are in the common room, on the phones, or in the dayroom.”); Sean Alexander (Compl.

Ex. L) (“Social distancing is not possible in the division [Division 11]. All residents are close together when in

the common area. All residents share the shower area.”); Aish Ayyash (Compl. Ex. N) (“Our beds were less

than 3 feet apart [in Division 9, tier 1B]. It was impossible to maintain a 6-foot distance between us because

out cell was not big enough to allow it.”); Darnell Singelton (Compl. Ex. O) (“The bunks were about 3 to 4

feet apart [in Division 2, dorm 2]. . . . The bunks were about 4 to 5 feet apart [in Division 2, dorm 4]. . . . It

was impossible to socially distance in both dorms. We were crammed together.”); Edward Reed (Compl. Ex.

P) (“The cell was very tight [in Division 10, tier 1D] and it was impossible to get away from my cellmate.”);

Erica Petty (Compl. Ex. Q) (“I shared a cell with one other woman [in Division 5, tier 2L]. I slept on the

lower bunk. It was impossible to socially distance.”); Michael Clark (Compl. Ex. R) (“I shared a cell [in

Division 11] until the time I left. The cell was approximately 6 feet by 5 feet.”); Raymond Sanchez (Compl.

Ex. S) (“There were 2 people housed in each cell [in Division 9, tier 3H]. . . . My cell was about 4 feet by 6

feet. There was no room to move around. It was impossible to socially distance. . . . The dayroom was not

large enough for social distancing. . . . There was no room to socially distance from others while we ate.”);

Rafael Ortiz (Compl. Ex. U) (“Mr. Ortiz is living in a dorm [Division 2, dorm 4] with many other people. All

of the people in the dorm are sleeping on cots, close together. The people in the dorm must use a shared

bathroom and shower area. There is no privacy.”); Clayborne Smith (ECF 36-2) (“I am living in a cell with

another cellmate. My cellmate has complained that something is wrong with his smell, something is wrong

with his throat, that he feels cold, and that he has headaches.”).

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--Social Distancing at Intake: Relatedly, the CCSO policies do not ensure proper social distance of all persons arriving at the Jail for intake. It appears they continue to utilize bullpens in which groups of arriving detainees from widely divergent parts of the County are held in close proximity. -- Sanitation: The CCSO policies fail to provide for the distribution of soap, sanitizing agents or cleaning products to detainees. This is despite the fact that sanitation and handwashing are some of the best defenses against the spread of the disease and CDC Guidance for Corrections Facilities mandate their availability.9 The Coronavirus Operation Plan sets forth a supposed “Enhanced Sanitation Process,” which in fact provides no provision for the distribution of sanitation supplies to detainees. Coronavirus Operation Plan at 10. Michael Miller’s declaration similarly omits any mention of the provision of cleaning supplies and sanitizing agents to detainees. The declarations submitted on behalf of the detainees underscore that there is a total lack of such essential items throughout the Jail.10 Evans confirms that the shortage of such supplies is an issue not only for detainees but for staff as well. ECF 36-1 at 14, 21-22.

9

Centers on Disease Control, “Coronavirus Disease 2019 (COVID-19): How to Protect Yourself and

Others,” https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html(last visited

Apr. 7, 2020); Centers on Disease Control, Interim Guidance on Management of Coronavirus Disease in

Correctional Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-

detention/guidance-correctional-detention.html (last visited Apr. 7, 2020).

10

E.g., Anthony Mays (Complaint Ex. D) (“Nobody has come on the tier to pick up trash in two days”

as of April 2, 2020); Vincent Stewart (Compl. Ex. E) (“He has been given no additional cleaning or sanitizing

products since the outbreak of COVID-19 in Illinois and in the Jail.”); Kenneth Foster (Compl. Ex. F) (“The

detainees in the division [Division 2] share a shower area. The shower area has not been sanitized.”); Charles

James Wimberly (Compl. Ex. H) (“The detainees in the division [Division 6] have a shared shower area. Mr.

Wimberly does not have access to soap. He has not received hand sanitizer since last week. . . . Mr. Wimberly

uses his shirt to cover the phone, because staff are not cleaning the phones,” as of April 2, 2020); Carver

Young (Compl. Ex. I) (“We received one small bar of soap per week. I did not witness any changes in

procedure regarding COVID-19. We did not receive additional hygiene or cleaning supplies.”); Terrance

Robinson (Compl. Ex. J) (“The detainees in the division [Division 6] share a shower area. Mr. Robinson does

not have access to soap or sanitizer.”); Brandon Mathis (Compl. Ex. K) (“Mr. Mathis is living in a cell with

another cellmate. . . . The cell has not been cleaned. . . . The detainees in the division [Division 11] share a

shower area. The shower area has not been sanitized. . . . Mr. Mathis has not been given soap or sanitizer.”)

Sean Alexander (Compl. Ex. L) (“Mr. Alexander shared a sink and a toilet with his cellmate. They have not

been given cleaning products to clean their cell. . . . Mr. Alexander stated … that the detainees in Division 11

are being given soap but not sanitizer. While jail staff have sprayed (disinfected) the common area, they have

5

Case: 1:20-cv-02134 Document #: 42 Filed: 04/07/20 Page 6 of 20 PageID #:1035

--Personal Protective Equipment (PPE): The policies do not provide that every detainee must be afforded PPE, including the masks that the CDC mandates that prisoners wear when in quarantine.11 Evans confirms detainees have no access to PPE. Evans Decl., ECF 36-1, ¶ 7. The detainee declarations also confirm this.12

not disinfected the individual cells.”); Christopher Zeigler (Compl. Ex. M) (“Mr. Zeigler works to clean up the tier. There are no more Clorox wipes for cleaning. They have not received the normal chemicals to clean the shower stalls. Mr. Zeigler has observed black mold in the shower area.”); Aish Ayyash (Compl. Ex. N) (“I was not given soap. I had to purchase soap at commissary with my own funds. It was crushed by the officers before purchase. . . . While I was there, one person tested positive for COVID-19. He appeared sick for multiple days before he saw a doctor. After he tested positive, he was taken from the division [Division 9], his belongings were placed in a garbage bag, and the officers quickly wiped down his cell. Staff did not clean any of the common areas.”); Darnell Singelton (Compl. Ex. O) (“Dorm 4 [Division 2] was closed before I was move there. It was filthy when we arrived. There was one large fan blowing the same air around the room with no exhaust. . . . The soap did not last long. If you wanted enough soap to wash up, shower, and clean your clothes, you needed to purchase it. We did not receive hand sanitizer.”); Edward Reed (Compl. Ex. P) (“The showers were covered with mold and infested with mice and cockroaches. . . . The officers were not giving out soap at the time I left. Typically, we received one bar of soap every two weeks. If we wanted more soap, we had to purchase it from commissary. We did not receive additional hygiene or cleaning supplies in response to COVID-19.”); Erica Petty (Compl. Ex. Q) (“We were not given hand sanitizer. We were given a small bar of soap once a week, or every other week. If we wanted enough soap for our needs, we had to purchase it.”); Michael Clark (Compl. Ex. R) (“We received one bar of soap per week. If we wanted to have soap regularly, we had to purchase it. We did not receive additional hygiene or cleaning supplies in response to COVID-19.”); Raymond Sanchez (Compl. Ex. S) (“We received one small bar of soap weekly. It would only last about 3 uses. If we wanted more soap, we had to purchase it from commissary. We could only buy one bar at a time at commissary, and could only go to commissary two times per month. . . . We did not receive additional hygiene or sanitary supplies in response to COVID-19.”); Tyneshia Perkins (Compl. Ex. T) (“We received one small bar of soap each week. If we wanted more soap or other hygiene products, we had to buy them. I had to buy my own soap because I have sensitive skin from eczema. . . . We did not receive additional hygiene or sanitation supplies.”); Rafael Ortiz (Compl. Ex. U) (“The Commissary was shut down last week. Detainees, including Mr. Ortiz, are not receiving any soap sanitizer, bleach or alcohol wipes.”); Clayborn Smith, (ECF 36-2) (“There are no cleaning materials provided at any time other than during the day shift. During the day shift, all of the detainees in the tier are collectively provided a single spray bottle full of an unknown liquid. . . . The cleaning material doesn’t last beyond the day shift. . . . The last time I was given a bar of soap was Wednesday. I have not been given any access to hand sanitizer anywhere. . . . One of the people who got taken out today had a cellmate who was taken out by medical staff on Thursday. He remained in his cell until today. No one came to clean the cell or provide him cleaning supplies. No one’s cell has been cleaned by anybody after a detainee was taken out by medical staff.” ).

11

See Centers on Disease Control, Interim Guidance on Management of Coronavirus Disease in

Correctional Detention Facilities, supra note 3 (“If cohorted, quarantined individuals should wear face masks

at all times (to prevent transmission from infected to uninfected individuals).”).

12

E.g., Anthony Mays (Complaint Ex. D) (“Guards on the tier are wearing masks, but no other

protective equipment.”); Vincent Stewart (Compl. Ex. E) (“Guards are wearing masks and gloves, though

that began only recently. Detainees are not given any personal protective equipment (PPE).”); Kenneth

Foster (Compl. Ex. F) (“Mr. Foster has seen the correctional officers wearing masks, but not gloves.

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--Quarantine: The CCSO policies mandate the quarantine of any tier in which a detainee resided who presented symptoms of COVID-19. Miller Decl., ¶ 19. The quarantine is implemented for 14 days, during which the entire tier is on “lockdown.” Ex. 1 to Miller Decl. at 4-9. Consequently, there are now 62 tiers (1,481 individuals) in the Jail, throughout all divisions, on lockdown. Id. Every time a new detainee tests positive or exhibits symptoms under this policy, the tier where he or she resides is put on lockdown for another 14 days, resulting in a seemly endless lockdown of detainees, as well as the inevitable scenario in which the Jail is not able to clinically manage the crisis. See Puisis Decl., ECF 1-2, ¶ 16 (“As the number of persons in quarantine grows, managing them clinically becomes insurmountable and will result in failure to manage.”). This policy also directly contravenes CDC guidance.13

Detainees are not given access to personal protective equipment (PPE).”); Charles James Wimberly (Compl.

Ex. H) (“The Jail does not provide personal protective equipment (PPE) to detainees.”); Carver Young

(Compl. Ex. I) (“I did not receive personal protective equipment (PPE). Other detainees asked for masks but

were denied.”); Terrance Robinson (Compl. Ex. J) (“While COs are wearing masks and gloves, detainees are

not given personal protective equipment (PPE).”); Brandon Mathis (Compl. Ex. K) (“Detainees are not being

given personal protective equipment (PPE).”); Sean Alexander (Compl. Ex. L) (“Some – but not all – of the

jail staff wear masks and gloves. Mr. Alexander does not have access to gloves or masks.”); Christopher

Zeigler (Compl. Ex. M) (“Some nurses and medical staff are wearing protective gear. But detainees have not

received any personal protective equipment (PPE).”); Aish Ayyash (Compl. Ex. N) (“Officers were wearing

gloves, but very few had masks. One officer told me that he only had a mask because he bought it himself. I

was never provided masks, gloves, or any personal protective equipment at any point.”); Darnell Singelton

(Compl. Ex. O) (“At first, only a few officers were [sic] gloves and masks. When I left, most were wearing

gloves and masks. Detainees did not receive masks, gloves, or other personal protective equipment (PPE).”);

Edward Reed (Compl. Ex. P) (“We did not receive masks, gloves, or other personal protective equipment

(PPE). The only staff I saw wearing gloves or masks were the nurses. Some detainees tried to make masks but

the officers confiscated them.”); Erica Petty (Compl. Ex. Q) (“We did not receive gloves, masks, or other

personal protective equipment (PPE). Some officers and nurses had gloves or masks, but not all of them.”);

Michael Clark (Compl. Ex. R) (“We did not receive masks, gloves, or other personal protective equipment

(PPE). Some guards had masks and/or gloves, but not all of them. Detainees tried making masks but guards

confiscated them.”); Raymond Sanchez (Compl. Ex. S) (““Some jail staff wore gloves and some wore masks,

but most were not wearing either.”); Tyneshia Perkins (Compl. Ex. T) (“Some guards wore gloves and masks

but not all of them did. Detainees did not receive masks, gloves, or other personal protective equipment

(PPE). The officers told us that if we made our own masks, they would be considered contraband.”); Rafael

Ortiz (Compl. Ex. U) (“Mr. Ortiz has not seen any jail staff wearing masks or gloves. Detainees are not given

personal protective equipment (PPE). “); Clayborn Smith (ECF 36-2) (“The Jail provides masks only to the

detainees who have a fever, as of yesterday in my tier [Division 11, tier CF]. Before yesterday, they were not

giving any of us masks,” as of April 6, 2020.)

13

See CDC, Interim Guidance on Management of Coronavirus Disease in Correctional Detention

Facilities,” supra note 8. (“Facilities should make every possible effort to quarantine close contacts of

7

Case: 1:20-cv-02134 Document #: 42 Filed: 04/07/20 Page 8 of 20 PageID #:1037
--Isolation: The CCSO isolation policies are similarly inept. Detainees in isolation should be housed in negative pressure environments, as the Sheriff himself acknowledges. Puisis Decl. ¶ 17; Coronavirus Operation Plan at 10. They should also be housed individually, as the CDC commands for correctional facilities.14 However, as a result of the vast spread of the disease, in the Jail, normal tiers have become isolation units. Ex. 1 to Miller Decl. at 4-9. Eleven tiers are now designated as isolation locations. Id. This leaves the detainees on those tiers exposed to other inmates and creates a high risk of transmission to staff and detainees. Puisis Decl. ¶ 17.
Beyond the facial policy deficiencies, the Sheriff’s policies are failing in their implementation, as the detainee declarations, tier statistics, and Evans declaration, outlined above, make clear. Drawing from this evidence, the following patterns become clear:
• Detainees in dayrooms, in lines, in waiting areas and in other congregate spaces are not at proper social distance.
• There are longstanding problems of sanitation in the Jail that have not been rectified in the present context. Detainees report that showers are moldy. Surfaces, including shared sinks and toilets in addition to showers, are not regularly sanitized.
• Sanitation supplies are not available. Sufficient cleaning of surfaces is not possible. Puisis Decl. ¶ 25. Cells cannot be kept clean because detainees lack cleaning supplies.
• Masks for the detainees who have not yet tested positive are not available.

COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected.”).

14

See id. (“Facilities should make every possible effort to place suspected and confirmed COVID-19

cases under medical isolation individually. Each isolated individual should be assigned their own housing

space and bathroom where possible.”).

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• Detainees on tiers where others become symptomatic are not monitored for symptoms, because staff are overworked, overwhelmed and exhausted. See Puisis Decl. ¶ 18. In short, the Sheriff’s policies—both in their design and in their implementation—are not
working. The ongoing, massive outbreak is the irrefutable evidence of that. In the absence of immediate relief, lives and health will continue to be placed at unacceptable risk.
This court should enter a temporary restraining order to immediately require the Sheriff to correct the failures listed above, as required by the CDC. In a nearly identical case, today, another federal district court judge in Miami entered a T.R.O to address strikingly similarly circumstances. That T.R.O. is attached. See Ex A. Further, the court should also establish a procedure for the expedited consideration for release of the members of subclass A.
I. The Fourteenth Amendment Does Not Require Plaintiffs to Show Defendant Knew His Objectively Unreasonable Conduct Would Cause Plaintiffs To Endure Infirm Conditions but Plaintiffs Have Made That Showing.
Plaintiffs seek emergency injunctive relief because the Sheriff is violating their Fourteenth Amendment right to objectively reasonable conditions of confinement. To prove this claim, Plaintiffs must show that the Sheriff acted with purpose, knowledge, or possibly recklessness “with respect to the bringing about of certain physical consequences in the world.” Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2472 (2015). The Sheriff concedes, for purposes of the issues in this case (Def. 4/6/20 Br. at 3), that his actions “were purposeful and knowing.” Equally clear, though, under multiple, recently decided Seventh Circuit cases, the defendant’s state of mind with respect to whether those actions are inappropriate or potentially harmful is irrelevant. See, e.g., Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (an “objective inquiry applies to all Fourteenth Amendment conditions-of-confinement claims brought by pretrial detainees”). In other words, proof of deliberate indifference on the part of a defendant is not required. Kingsley, 135 S. Ct. at 2473; see also Miranda v. County of Lake, 900 F.3d 335, 354 (7th Cir. 2018).
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Case: 1:20-cv-02134 Document #: 42 Filed: 04/07/20 Page 10 of 20 PageID #:1039
In Hardeman, a class of pretrial detainees brought a lawsuit against the sheriff of Lake County and his chief of corrections under 42 U.S.C. § 1983 for violation of their Fourteenth Amendment rights when the defendants shut off all water in the jail for three days without warning. Hardeman v. Cty. of Lake, 2018 WL 3533254, at *1 (N.D. Ill. July 23, 2018). On appeal, the Seventh Circuit held that plaintiffs had sufficiently pled a claim under the Fourteenth Amendment by alleging that “Lake County officials prevented them from caring for themselves and then deprived them of the most basic of human needs—water.” Hardeman, 933 F.3d at 825. “The resulting alleged unsanitary conditions and physical harms were objectively unreasonable conditions of confinement that (if proven) violated the Fourteenth Amendment’s due-process guarantee.” Id. The Seventh Circuit did not require plaintiffs to allege that the corrections chief intended, or even knew, about the conditions in the cellhouse that resulted from their deliberate actions. It was sufficient for plaintiffs to allege that the defendants’ actions to turn off the water was intentional, that it was objectively unreasonable, and that defendants’ actions proximately caused the plaintiffs to suffer objectively unreasonable conditions of confinement. Id.
One district court in this District has expressed the question of intent under the Fourteenth Amendment this way: “The state-of-mind requirement is measured against each defendant’s actions (that is, whether they intentionally or recklessly engaged in the action), rather than their subjective view of the risks of the allegedly inadequate [action].”Gaston v. Beatty, No. 17-cv01798, 2020 WL 1288878, at *4 (N.D. Ill. Mar. 18, 2020) (emphasis added). In other words, the “intent” that the Supreme Court has long held is required to prevail on a claim under the Fourteenth Amendment, see Daniels v. Williams, 474 U.S. 327, 328 (1986), refers to the action of the defendant: is it intentional or is it negligent? See Miranda, 900 F.3d at 354 (finding the requisite intent because defendants “deliberately chose a ‘wait and see’ monitoring plan”). If the action was taken negligently, then liability under the Fourteenth Amendment cannot attach. But if the action was taken
10

Case: 1:20-cv-02134 Document #: 42 Filed: 04/07/20 Page 11 of 20 PageID #:1040
intentionally, and if that action is objectively unreasonable and proximately causes the plaintiffs to suffer injury, then the Fourteenth Amendment has been violated. See Williams v. Ortiz, 937 F.3d 936, 942-43 (7th Cir. 2019) (in medical care context, Fourteenth Amendment poses two questions: “(1) whether [the plaintiff] suffered from an objectively serious medical condition and (2) whether the medical staff’s response to it was objectively unreasonable”); Lavite v. Eales, No. 19-cv-00953-JPG, 2019 WL 6728919, at *2 (S.D. Ill. Dec. 11, 2019) (to prevail on a conditions claim, pretrial detainee must show “(1) there is a deprivation that is, from an objective standpoint, sufficiently serious to deprive the plaintiff of ‘the minimal civilized measure of life’s necessities, and (2) the defendant’s failure to respond or remedy the situation was objectively unreasonable.”)
In this case, the Sheriff has admitted that the Office “acted purposefully and knowingly” when promulgating its policies, including what those policies do (and do not) provide, and how those policies do (and do not) comply with the CDC Guidance. Dkt. 40 at 3. Accordingly, the only legal question remaining is whether those policies, and what they contain or omit, are objectively unreasonable. Miranda, 900 F.3d at 352; see also Glisson v. Ind. Dep’t of Corrs., 849 F.3d 372, 379 (7th Cir. 2017) (a municipality’s intentional decision not to have a policy is “just as much a ‘policy’” as an affirmative policy is); see also id. at 383 (Sykes, J., dissenting) (agreeing a municipality’s deliberate choice not to have a policy is equivalent to affirmative policy; dissenting on the issue of causation).
Under this law, the Sheriff’s COVID-19 policies are objectively unreasonable. As set forth more fully above, the Sheriff’s policies fall short of the CDC Guidance both facially and as a matter of implementation. The Sheriff implemented these policies knowingly and purposefully. Precisely because they fall short of the CDC Guidance, which the Sheriff himself acknowledges is the gold standard for response to the coronavirus, there is a public health crisis in the Jail. Among other things, detainees do not have adequate soap, cleaning supplies, or PPE to protect them from this
11

Case: 1:20-cv-02134 Document #: 42 Filed: 04/07/20 Page 12 of 20 PageID #:1041

deadly disease, and vulnerable detainees are forced to share a locked “hot box” with symptomatic detainees without regard to their vulnerability.
If this Court determines that Plaintiffs are required to show that Sheriff Dart has actual knowledge of the effects of his policies on the Plaintiff class in order to prevail on any particular request for injunctive relief, Plaintiffs easily meet this burden. In the weeks and days since his objectively unreasonable policies were formalized, the Sheriff has been put on the clearest possible notice that they are failing disastrously. The Jail is the site of a public health disaster. The Cook County Jail is the site of the second largest cluster of confirmed COVID-19 cases in the United States. Suspected infections have occurred on 62 separate tiers located throughout the Jail, all of which are now on lockdown. Yet, in his submission to the court, the Sheriff does not even acknowledge the magnitude of the public health disaster unfolding on his watch. He offers not a shred of evidence that he has sought help or modified his policies in any way in response to the horrific unfolding of COVID19 cases in the last 14 days.
It is well established that claims for injunctive relief are assessed at the time relief is to be entered. See, e.g., Helling v. McKinney, 509 U.S. 25, 36 (1993) (on prisoner’s claim for injunctive relief, intent requirement “should be determined in light of the prison authorities’ current attitudes and conduct” (emphasis added)); Farmer v. Brennan, 825 U.S. 511, 845 (1994) (intent on injunctive claim should be “determined in light of the prison authorities’ current . . . conduct”). In any event, there is no dispute that the Sheriff now knows about the precise conditions that Plaintiffs raise; this lawsuit made him aware. Moreover, the Sheriff regularly walks through the Jail.15 He knows precisely what is

15

See, e.g., WGN 720 Radio Interview with Sheriff Dart (Mar. 18, 2020), https://wgnradio.com/roe-

conn/covid-19-containing-the-virus-behind-bars/ (last visited Apr. 7, 2020) ("I wandered around division 6

and 10 yesterday talking with our folks, and our staff's . . . just amazing. . . . And I talked to some of the

detainees too and they seem to have an understanding of what's going on."); Mark Konkol, “A Year In Jail

For Stealing Toothpaste? New Law Frees Poor Chicago Inmates,” DNA Info (Aug. 26, 2015),

https://www.dnainfo.com/chicago/20150826/little-village/sheriff-tom-dart-wins-one-for-petty-criminals-

locked-up-for-being-poor/.

12

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going on in the tiers. He cannot claim to be unaware of the circumstances about which so many detainees and staff have complained. Accordingly, even if the Court were to conclude, with respect to a particular item, that the Fourteenth Amendment demands a showing of the Sheriff’s actual knowledge of the specific conditions that have flowed from his policies, Plaintiffs should prevail.
II. Petitioners’ Habeas Claims Are Not Barred by the Exhaustion Doctrine This Court requested that Subclass A Plaintiffs brief the question of whether their claims for habeas-corpus relief are barred by the exhaustion doctrine. They are not. First, under the nonstatutory, flexible, and prudential standard of exhaustion in pre-conviction cases, exhaustion is futile where each passing day risks Plaintiffs’ lives and where exhaustion would take weeks rather than days,16 and for the same reasons exhaustion should be excused under the Court’s broad equitable authority. Federal courts apply a judge-made exhaustion doctrine in § 2241 cases. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490 (1973). Unlike the statutory exhaustion requirement in § 2254, though, the judge-made exhaustion requirement for § 2241 petitions is prudential, flexible, and non-jurisdictional. United States v. Castor, 937 F.2d 293, 297 (7th Cir. 1991); Soler v. State of Ind., 47 F.3d 1173 (7th Cir. 1995) (same); see also Santiago-Lugo v. Warden, 785 F.3d 467, 474 (11th Cir. 2015). The Supreme Court has described the exhaustion doctrine in § 2241 cases as a “judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a ‘swift and imperative remedy in all cases of illegal restraint or confinement.’” Braden, 410 U.S. at 490 (emphasis added) (citation omitted). Courts, accordingly, apply it with those dual purposes in mind. See, e.g., Park v. Thompson,
16 Plaintiffs mistakenly failed to elucidate in the hearing on April 7, 2020 that the process for review of bail decisions, under Rule 604(c), is a lengthy process, thus making exhaustion futile in this case involving an unprecedented health emergency.
13

Case: 1:20-cv-02134 Document #: 42 Filed: 04/07/20 Page 14 of 20 PageID #:1043
356 F. Supp. 783, 788 (D. Haw. 1973) (“It is the legal issues that are to be exhausted, not the petitioner.”).
An exhaustion requirement in this case would require Plaintiffs to risk their lives so that state courts could take at least several weeks—or months—to consider whether the fact that Plaintiffs’ confinement is threatening their lives requires their release. Thankfully federal law does not require such a result. Courts have been clear that where a petitioner’s claim threatens to become moot while state courts are considering it, they need not wait to go to federal court.
In emergency situations, the exhaustion doctrine does not bar claims that could not be vindicated in state court quickly enough. See, e.g., Granberry v. Greer, 481 U.S. 129, 134 (1987) (acknowledging that courts may dispense with exhaustion and disrupt potential state proceedings in “rare cases where exceptional circumstances of peculiar urgency are shown to exist” (quoting Ex parte Hawk, 321 U.S. 114, 117 (1944)); Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003) (exhaustion requirement is satisfied if “available remedies provide no genuine opportunity for adequate relief” or if “irreparable injury may occur without immediate judicial relief” (quotations omitted)); Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993) (holding that federal courts “have the discretion to dispense with the [exhaustion] rule in rare cases where exceptional circumstances of peculiar urgency are shown to exist.”); Simmons v. Blodgett, 910 F. Supp. 1519, 1523 (W.D. Wash. 1996) (excusing exhaustion because “the federal courts need not defer to the state judicial process when no appropriate remedy exists at the state level or when there are circumstances rendering the state process ineffective to protect the rights of the prisoner.”), aff’d, 110 F.3d 39 (9th Cir. 1997); cf. also Sweeney v. Bartow, 612 F.3d 571, 573 (7th Cir. 2010) (“[A] person who is in state custody awaiting a determination by the state courts of the legality of his custody may seek federal habeas corpus to challenge that custody without being barred by the [related] Younger doctrine if immediate federal intervention is necessary to prevent the challenge from becoming moot.”). Under the common-law
14

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exhaustion requirement applicable to § 224 cases, courts are asked to strike a reasonable balance between the interests of comity and federalism and the protection of petitioners’ federal rights. Braden, 410 U.S. at 490. In emergency situations, that balance tips in favor of federal rights. Granberry, 481 U.S. at 134.
Here, there is no question that it would take at least several weeks, if not months, for Plaintiffs to exhaust the bond-review process and attendant appeals. To exhaust state remedies, a petitioner needs to invoke “one complete round” of the “normal, simple, and established part[s] of the State’s appellate review process.” O’Sullivan vs. Boerckel, 526 U.S. 838, 845 (1999). That process here includes (1) filing a motion for bond reduction in the criminal court, (2) waiting for it to be decided, (3) appealing its denial to the Illinois Court of Appeals, under Illinois Supreme Court Rule 604(c), and (4) waiting for the appeal to be decided.17 This process takes several months. Compare, e.g., Bond Reconsideration Order, State v. Ejaz, No. 19-CR0751-01 (Ck. Cty. Cir. Ct. May 8, 2019), with Order, State v. Ejaz, No. 19-CR-751-01 (Ill. App. 1d Aug. 6, 2019); and compare Bond Modification Order, State v. Smith, No. 19-CR-7206 (Ck. Cty. Cir. Ct. May 10, 2019), with Order, State

17

Plaintiffs may also have to seek review in the Illinois Supreme Court and wait for that court to decide

the case after the 604(c) appeal at the appellate level. Undersigned counsel (after an admittedly abbreviated

search given the timeline) could find exactly one published Illinois Supreme Court case ruling on a question

of pretrial detention under Illinois Supreme Court Rule 604(c), which authorizes pretrial detainees to seek

review in the court. See People v. Purcell, 201 Ill.2d 542 (2002) (ruling that defendant's constitutional right to bail

was violated by provision of bail statute that placed burden on defendant to establish that the proof of his

guilt was not evident, in appeal from appellate court’s ruling on 604(c) petition). The U.S. Supreme Court has

held that Illinois’s certiorari procedure is required for exhaustion of post-conviction habeas claims, see

O’Sullivan, 526 U.S. at 845, but it is not clear whether certiorari is required for non-post-conviction claims.

That is because when a remedy is never used to grant the relief requested it is not considered part of a state’s

“normal . . . appellate review process.” Compare id., with Wilwording v. Swenson, 404 U.S. 249, 249–50 (1971)

(reversing appellate court judgment dismissing claim for failing to pursue mandamus and noting that

mandamus had never been used in state to grant requested relief). In any event, Plaintiffs need not, and do

not, take a position on whether resort to the Illinois Supreme Court would be necessary because the ordinary

appellate process to which they would be subject would take longer than is reasonable to require them to wait

under the extreme circumstances of this case.

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v. Smith, No. 19-CR-7206 (Ill. App. 1d Aug. 27, 2019).18 It is not plausible that it would be completed in time to prevent irreparable harm to Plaintiffs’ health and lives.19 This is particularly evident given that Cook County criminal courts are regularly still denying bail reviews, even for people at high risk of COVID-19.20
Finally, bond review is the only mechanism available; there is no state habeas proceeding governing these circumstances. See Beacham v. Walker, 231 Ill.2d 51, 58 (“It is well established that an order of habeas corpus is available only to obtain the release of a prisoner who has been incarcerated under a judgment of a court that lacked jurisdiction of the subject matter or the person of the petitioner, or where there has been some occurrence subsequent to the prisoner's conviction that entitles him to release.”). And even were such a proceeding available, Plaintiffs would not need to file one because a separate habeas proceeding is not part of Illinois’s “normal process . . . of appellate review.” O’Sullivan, 526 U.S. at 845.
If this is not an emergency situation it is hard to imagine what would be. As explained in Plaintiffs’ motion for a T.R.O., their lives are at risk every day. And, as explained above, exhausting state remedies would take at least weeks, if not months, to complete. Therefore, exhaustion would be

18

Plaintiffs would be happy to share courtesy copies of these orders with the Court and defense

counsel, but did not attach them in an effort not to overwhelm the record.

19

Named Plaintiffs did not submit requests for bond reduction in the context of the special proceeding

instituted by Judge Martin, but this does not constitute a procedural default. As this brief makes clear,

exhausting the bond review process would take too long and thus would be futile. Moreover, the situation in

the jail has deteriorated rapidly since the time of Judge Martin’s special proceeding. Plaintiffs’ claims in this

Court stem from the risks to their safety now; that it was unclear (to them) that their safety was at risk several

weeks ago constitutes cause for their default, even if there were one. See Wainwright v. Sykes, 433 U.S. 72

(1977) (establishing cause-and-prejudice standard for procedural default). Additionally, many members of the

Plaintiffs class were arrested after Judge Martin’s proceedings were concluded and thus would not have had

this remedy to pursue, or otherwise had their bond review denied in those proceedings.

20

Pretrial detainees who have recently moved to alter their conditions of release on the ground that

their lives were threatened in the Jail have been turned away by the state courts. See, e.g., Andy Grimm, “Bail

denied—twice—for inmate with COVID-19,” Chicago Sun-Times, (Apr. 1, 2020),

https://chicago.suntimes.com/coronavirus/2020/4/1/21203554/bail-denied-twice-for-inmate-with-covid-

19.

16

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futile, and additionally this Court should exercise its discretion to hear this case even if exhaustion would otherwise be required.
III. Home Confinement or the Electronic Monitoring Program is Custodial, for Purposes of the County Jail Act and the Sheriff’s Liability.
This Court asked Plaintiffs to address whether home confinement or electronic monitoring, as administered by the Sheriff, is considered being in “custody” under Illinois law. The answer to that is an unqualified yes.21
As evidence of this, the Illinois crediting statute, effective in 2012, provides that pretrial home detention counts toward the calculation of a term of imprisonment. 730 ILCS 5/5-4.5-100(b): (“Except as set forth in subsection (e), the offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for the number of days spent in custody as a result of the offense for which the sentence was imposed…. the trial court shall give credit to the defendant for time spent in home detention on the same sentencing terms as incarceration as provided in Section 5-8A-3.” ) (emphasis added). Home detention is “the confinement of a person convicted or charged with an offense to his or her place of residence under the terms and conditions established by the supervising authority.” 730 ILCS 5/5–8A–2(C) (West 2012). “Supervising authority” is defined as “the Department of Corrections, probation supervisory authority, sheriff, superintendent of municipal house of corrections or any other officer or agency charged with authorizing and supervising home detention.” 730 ILCS 5/5–8A–2(E) (emphasis added).
Interpreting this statutory language in toto, the Illinois appellate courts have said that home confinement that is administered by a sheriff’s department (as opposed to as a condition of bond set by the criminal court,) constitutes home detention within the purview of the crediting statute, 730 ILCS 5/5-4.5-100(b), since “any violation of the conditions imposed the sheriff's department ‘could

21

As discussed in the April 7, 2020 hearing, this argument is relevant to Plaintiffs’ claim concerning the

transfer subclass B members, not Plaintiffs’ request for release of medically-vulnerable people.

17

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result in [the detainee’s] immediate arrest and reincarceration.’” People v. Smith, 2014 IL App (3d) 130548, ¶ 37 (holding defendant was not entitled to credit for time served on home confinement where he had been released by trial court as condition of an appeal bond, but differentiating defendant from someone subject to confinement as part of sheriff’s home detention program) (citing Beachem, 229 Ill. 2d at 251-53) (individual ordered to report to a Sheriff’s Day Reporting Program was “in custody” for purposes of the Illinois crediting statute and could be re-incarcerated in the Cook County Jail at the sheriff’s discretion and without a warrant.) (“In the present case, the sheriff's decision to modify the means used to hold defendant had no impact on the sheriff's legal authority over defendant or on defendant's obligation to submit to that authority. Thus, defendant…was in custody while participating in the Program.”).
Further evidence of this proposition can be found in the Sheriff’s regulations governing electronic monitoring and home confinement.22 These state that failure to abide by the requirements of home confinement, by tampering with the ankle bracelet or telephone device, renders a detainee subject “to prosecution for the crime of escape.” Cook County Sheriff Rules and Regulations for Electronic Monitoring (attached as Ex. _); see also People v. Rogers, 2012 IL App (1st) 102031, ¶ 8 (discussing Cook County Sheriff’s electronic monitoring program including program contract informing detainees that “violation of the program conditions may result in a warrant being issued for your arrest for [the] crime of escape under 730 ILCS 5/5–8A–4.1.”). Per those same rules, detainees who wish to obtain “movement” from their home confinement must provide the request to the Sheriff’s Department three days in advance. Id. Detainees are only allowed movement if approved by the Sheriff. Id. They must allow the Sheriff’s correctional staff into their home at any time. Id. They are in the Sheriff’s custody
22 See Cook County Sheriff’s Office, Electronic Monitoring Rules and Regulations, https://www.cookcountysheriff.org/wp-content/uploads/2018/08/EMU-711G-Particpant-InformationBrochure.pdf (last visited Apr. 7, 2020).
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The question of custody is relevant for purposes of consideration of the Illinois County Jail Act in this litigation. See 730 ILCS 125/14 (“At any time, in the opinion of the Warden, the lives or health of the prisoners are endangered or the security of the penal institution is threatened, to such a degree as to render their removal necessary, the Warden may cause an individual prisoner or a group of prisoners to be removed to some suitable place within the county…where they may be confined until they can be safely returned to the place whence they were removed.”) (emphasis added”). The Sheriff had, and still has, the capacity to move people at risk of contracting COVID-19 from the jail facility at 26th and California to another location in his custody, including home confinement, under the terms of the County Jail Act. That he failed to do so when faced with the spread of an infectious disease is objectively unreasonable. See Miranda, 900 F.3d at 353-54 (jury must decide if corrections medical officers were liable under Fourteenth Amendment for failure to provide adequate healthcare where there was evidence they “deliberately chose a ‘wait and see’ monitoring plan,” as to detainee who stopped eating and drinking); Smith v. Kapotas, No. 18 C 4260, 2020 WL 553619, at *3 (N.D. Ill. Feb. 4, 2020) (citing Gordon v. City of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (pretrial detainee must prove, among other elements, that “the defendant did not take reasonable available measures to abate [a serious] risk [of harm], even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious”)).
CONCLUSION For the foregoing reasons, and as set forth in Plaintiffs’ Complaint, Motion for a Temporary Restraining Order, supplemental briefing on the Prison Litigation Reform Act, and as addressed in the April 7, 2020 hearing, Plaintiffs respectfully request that this Court enter a Temporary Restraining Order and other such relief as set forth in their Class Action Complaint.
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Stephen H. Weil Sarah Grady Loevy & Loevy 311 N. Aberdeen Chicago, IL 60607 Tel: 312-243-5900
Locke E. Bowman Alexa A. Van Brunt Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue, Chicago, IL 60611 (312) 503-0884
Charles Gerstein (pro hac vice admission) Alec Karakatsanis (pro hac vice admission) Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 202-894-612

Respectfully submitted,
/s/ Alexa Van Brunt Counsel for Plaintiffs

CERTIFICATE OF SERVICE I, Alexa Van Brunt, an attorney, hereby certify that on April 7, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system and served upon all counsel who have filed appearances in the above-captioned matter.

/s/ Alexa A. Van Brunt Alexa A. Van Brunt

20

 
 Case: 1:20-cv-02134 Document #: 73 Filed: 04/27/20 Page 1 of 87 PageID #:1934

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, individually and on

)

behalf of a class of similarly situated

)

persons; and JUDIA JACKSON, as next )

friend of KENNETH FOSTER, individually )

and on behalf of a class of similarly

)

situated persons,

)

)

Plaintiffs-Petitioners,

)

)

vs.

)

)

THOMAS DART,

)

)

Defendant-Respondent.

)

Case No. 20 C 2134

MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge:1
Anthony Mays and Kenneth Foster, both of whom are detained at Cook County Jail while awaiting trial on criminal charges, have sued Cook County Sheriff Thomas Dart, who operates the Jail, on behalf of a class of similarly situated persons. Mays and Foster allege the Sheriff has violated the constitutional rights of persons detained at the jail by failing to provide them with reasonably safe living conditions in the face of the current coronavirus pandemic. They assert claims under 42 U.S.C. § 1983 and for writs of habeas corpus under 28 U.S.C. § 2241.
On April 9, 2020, the Court granted the plaintiffs' motion for a temporary

1 Judge Kennelly is addressing this matter as emergency judge pursuant to paragraph 5 of Second Amended General Order 20-0012.

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restraining order in part. The Court directed the Sheriff to: (1) establish and implement, within two days' time, a policy requiring prompt coronavirus testing of detained persons with symptoms consistent with coronavirus disease; (2) within two days' time, eliminate the use of "bullpens" to hold groups of new detainees during the intake process; (3) begin to provide inmates and staff, within one day, soap and/or hand sanitizer sufficient to enable them to frequently clean their hands, and sanitation supplies sufficient to enable them to regularly sanitize surfaces in areas used in common; (4) establish and carry out, within two days' time, a policy requiring sanitation of all such surfaces between each use; and (5) within three days' time, distribute facemasks to all detained persons quarantined due to their exposure to a person exhibiting symptoms consistent with coronavirus disease. The Court overruled the plaintiffs' request for additional temporary relief, including a mandate for implementation of "social distancing" throughout the Jail and to provide facemasks to every detained person. The Court also concluded that the plaintiffs seeking habeas corpus relief had failed to exhaust available state court remedies.
The plaintiffs have now moved for entry of a preliminary injunction and other relief. They again seek writs of habeas corpus, based on newly discovered facts that they contend provide a basis to excuse their failure to exhaust state court remedies. They also seek conversion of the temporary restraining order to a preliminary injunction, and they again request an order requiring implementation of social distancing throughout the Jail, as well as transfer of detained persons from the Jail to other locations within the Sheriff's control, including electronic home monitoring. The plaintiffs also request the convening of a three-judge court under the Prison Litigation Reform Act
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to consider entering a "prisoner release order" within the meaning of that statute. For the reasons stated below, the Court converts the terms of the temporary
restraining order to a preliminary injunction and enters further preliminary injunctive relief regarding social distancing but denies the plaintiffs' other requests for relief.
Factual Background The following discussion of relevant facts concerning coronavirus, the Cook County Jail facilities, and the parties' claims and defenses is taken from undisputed facts, the affidavits and documentary evidence submitted by the parties, and the testimony and exhibits offered at the evidentiary hearing held on April 23, 2020. A. The coronavirus pandemic The rapid global spread of the novel coronavirus has led to a pandemic of extraordinary scale. The Court's decision on the plaintiffs' motion for a temporary restraining order includes a discussion of the gravity of the public health threat associated with this virus. Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *2 (N.D. Ill. Apr. 9, 2020). Symptoms of the disease caused by the novel coronavirus—what has come to be known as COVID-19, which the Court will refer to as coronavirus disease—include fever, cough, and shortness of breath, and the health effects can be very severe, including serious damage to the lungs and other internal organs, and death. People who are sixty-five years of age or older and those with certain pre-existing health conditions, including chronic lung disease, moderate to severe asthma, serious heart conditions, diabetes, chronic kidney disease, liver disease, a body mass index of forty or higher, and other conditions have a heightened vulnerability to severe illness if they
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contract the coronavirus. The rapid transmission of coronavirus has been attributed to several
characteristics. Respiratory droplets containing the virus emitted by an infected person, though coughing or sneezing for example, can travel several feet and may persist in the air for several hours. In addition, because the virus can persist on some surfaces for up to three days, transmission can occur even without physical proximity to an infected person. Moreover, those who contract the virus may be asymptomatic for days or even for the entire duration of the infection but can still transmit the virus to others, making it more challenging to readily identify infected individuals and respond with necessary precautions.
There is currently no known effective treatment for coronavirus disease and no vaccine to prevent people from contracting it. Medical professionals and public health experts agree—and the evidence in this case demonstrates beyond peradventure—that the only way to curb the spread of the virus is through a multi-faceted strategy that includes testing to identify those who have been infected; isolation of those who test positive or develop symptoms consistent with the disease; quarantining those who may have come into contact with the virus; frequent sanitation of surfaces; frequent handwashing; and use of personal protective equipment (PPE) such as facemasks. And a key tactic recommended by public health experts to curb the spread of coronavirus disease has been to keep people apart from each other—what has come to be known as "social distancing." The Centers for Disease Control's Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and
4

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Detention Facilities ("CDC Guidelines"),2 defines social distancing as "the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic)." Id. at 4.
Social distancing has effectively been mandated by most state governments as a critical strategy in combatting the pandemic. Here in Illinois, the state has been under a statewide stay-at-home order first imposed by Governor J.B. Pritzker effective March 20, 2020, the goal of which is to limit person-to-person contacts to curb transmission of the virus. Activities not deemed "essential" have been shut down. People have been strongly urged, and in many situations directed (by governments, employers, commercial establishments, and so on) to maintain space between themselves and others. In addition, the wearing of PPE, primarily facemasks, has been strongly advised and now required in some situations, particularly when people may come into contact with others.
The effect of the stay-at-home orders imposed in Illinois and most other states, along with advice by national officials to limit contacts and group activities, has been dramatic: schools have been closed; commercial establishments and workplaces have ceased operations, resulting in massive job losses; public events have largely been cancelled; and access to public spaces has been limited or barred entirely. Entire sectors of the national economy have slowed to a snail's pace. Society has paid a very high price to curb the spread of this highly contagious virus.
2 The Guidelines were issued on March 23, 2020 and are available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf.
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B. Operation of the Cook County Jail The Sheriff runs the Cook County Jail. As the Court stated in its written decision
on the plaintiffs' motion for a temporary restraining order (TRO), the Jail is "a very large physical facility—actually a campus of separate physical facilities—whose population, if one considers including both detainees and staff, is the size of a small (but not all that small) town." Mays, 2020 WL 1812381, at *1. Managing the Jail is extraordinarily challenging because of the size of its population and physical facilities, the diverse needs of the detainees, the Sheriff's public safety obligations, and his obligations to the criminal justice system. The Sheriff's public safety obligations require him to consider the appropriate custodial conditions for each detained person. As the Court has noted, the Jail's population "runs the gamut from persons with lengthy criminal records who are accused of committing violent crimes to non-violent offenders in custody for the first time who, perhaps, remain in custody only because they and their families were unable to post bond money." Id. And the Sheriff's obligations to the people in his custody, most of whom are detained awaiting trial on crimes for which they are therefore entitled to a presumption of innocence, require him to provide care sufficient to account for each individual's physical and mental health conditions. This is no small task, particularly given that populations in custody are statistically more likely to have adverse health conditions, both physical and mental.
Adding an infectious disease outbreak to these conditions further complicates the difficult challenge of managing the Jail. The very nature of the Jail's setup and day-today operations facilitates rapid transmission of communicable diseases like the one caused by the coronavirus. First, the Jail's physical facilities are designed to
6

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accommodate large populations, all densely housed, and many in congregate settings. In particular, the Jail has many so-called "dormitory" units, which in normal times may house as many as hundreds of detained persons in a single room with closely-spaced bunk beds.
Second, the Jail is a closed environment with many spaces used in common. Persons detained there—even those housed in single-occupancy cells—do not have individual bathing facilities; toilets are typically used in common; they eat in groups under normal circumstances; and they come into contact with each other and with correctional officers in other common areas. And even when confined, detainees are in close proximity, in adjoining cells and in tiers that use a common ventilation system.
Third, the routine operations of the Jail require high levels of movement of people. Detained persons must be escorted from their cells to common areas like shower and bathroom facilities. In normal times they are escorted to court hearings and recreational areas (all or nearly all of which have come to a stop). Finally, large numbers of staff personnel, as well as vendors, move in and out of the Jail and its various areas on a daily basis. In doing so, these individuals have contact with other members of the community at large, who themselves may have contracted coronavirus. Thus staff members and contractors potentially can carry the virus both into and out of the Jail.
Limiting exposure to the coronavirus in the Jail is therefore a significant challenge. Infection rate data reflects that it has been challenging to effectively curb transmission of the highly infectious coronavirus in the setting of the Jail. As of April 6, 2020, the infection rate within the Jail was an order of magnitude higher than the rate of
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infection in Cook County. Mays, 2020 WL 1812381, at *8. And on April 8, 2019, the New York Times reported that, at that time, the Jail was the largest-known source of coronavirus infections in the United States. See Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars (April 8, 2020), N.Y. Times, https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html (last updated April 23, 2020).
Procedural History A. Plaintiffs' suit and motion for a temporary restraining order
The plaintiffs, Anthony Mays and Kenneth Foster, are detained at the Cook County Jail and have been housed on tiers in which at least one person had been infected with the coronavirus. On April 3, 2020, they sued the Sheriff on behalf of themselves and others similarly situated, with allegations stemming from the risks the coronavirus poses to their health. The plaintiffs seek to represent a class and two putative subclasses. The class consists of "all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic." Compl. (dkt. no. 1) ¶ 60. "Subclass A consists of all people who, because of age or previous medical conditions, are at particularly grave risk of harm from COVID-19." Id. ¶ 61. "Subclass B consists of all people who are currently housed on a tier where someone already tested positive for the coronavirus." Id. ¶ 62. Mays and Foster both have medical conditions that heighten their risk of serious health consequences from an infection by the coronavirus.
In their complaint, the plaintiffs alleged that because the Sheriff was not implementing measures to control the spread of the coronavirus at the Jail, especially
8

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those recommended in the CDC Guidelines, the conditions in the Jail facilitated rapid transmission, putting the health of detained persons at great risk. In support of this contention, the plaintiffs attached several affidavits to their complaint from individuals who had spoken to persons detained at the jail. These affidavits reported the following conditions at the Jail in late March and early April:
• detained persons were not receiving soap, hand sanitizer, or facemasks; • facemasks that they made for themselves out of cloth were being confiscated; • detainees were being housed in bunks or beds that were between two and
four feet apart from each other; • many detained persons were living in dormitory-style housing, where dozens
of individuals shared a single room; • detained persons were being held at intake in so-called bullpens, where
numerous detainees were held together for extended periods in a crowded cell; and • the Jail's staff was not regularly sanitizing common surfaces or providing detainees with cleaning supplies to do this themselves. The day they filed suit, the plaintiffs moved for the issuance of writs of habeas corpus for the members of subclass A and for a TRO or preliminary injunction on behalf of the class as a whole, requiring the Sheriff to take action to control the rapid spread of the coronavirus at the Jail. The plaintiffs also moved to certify their proposed class and subclasses. After an extended hearing on the motion for a temporary restraining order, the Court issued a written decision on April 9, 2020 denying the request for writs of habeas
9

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corpus and partially, but not entirely, granting the motion for a TRO. Mays, 2020 WL 1812381, at *6, 14–16. In ruling on this motion, the Court considered the affidavits from medical experts, individuals who had spoken to detainees, and those from Jail officials and employees. The Sheriff had raised a hearsay objection to the Court's consideration of the affidavits from individuals who had spoken to detainees, but hearsay may be considered in ruling on a motion for a TRO or for a preliminary injunction. See SEC v. Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991).3 The TRO directed the Sheriff to take the following actions: (1) establish and implement a policy requiring prompt testing of symptomatic detainees, and—if medically appropriate and feasible based on the availability of testing materials—detainees who may have been exposed to the virus; (2) implement social distancing during intake and suspend the use of bullpens to hold detained persons awaiting intake; (3) provide all detained persons with adequate soap or sanitizer for hand hygiene; (4) provide staff personnel and detained persons with adequate cleaning supplies to regularly sanitize surfaces and objects, including in hightraffic areas such as shower facilities; (5) establish a policy requiring frequent sanitation of these areas; and (6) provide facemasks to all detained persons in quarantine. Mays, 2020 WL 1812381, at *14–15.
The Court denied several of the plaintiffs' requests for relief. They sought an order mandating social distancing throughout the facility, not just at intake, arguing that
3 "Given its temporary nature, 'a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.'" FTC v. Lifewatch Inc., 176 F. Supp. 3d 757, 761 (N.D. Ill. 2016) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). The same, of course, is true of a TRO.
10

Case: 1:20-cv-02134 Document #: 73 Filed: 04/27/20 Page 11 of 87 PageID #:1944
this was one of the critical outbreak control measures outlined in the CDC Guidelines. Id. at *10. The Court declined to mandate social distancing beyond intake, reasoning that there are space constraints at the Jail and the Guidelines expressly recognized that social distancing may not be feasible in a correctional facility. Id. The Court also declined the plaintiffs' request for direct screening of medically vulnerable detainees before they show symptoms of infection, also because the CDC Guidelines did not mandate this. Id. In addition, the Court denied the plaintiffs' request to require the Sheriff issue facemasks to every detained person, as the CDC Guidelines recommended this only for those who had come into contact with a symptomatic individual. Id. at *12, 15. Finally, the Court declined the plaintiffs' request to transfer the members of subclass B to a safe facility or other forms of custody, because the plaintiffs had failed to show that the other protective measures that the Court had ordered would be inadequate to protect detained persons from the health risks associated with the coronavirus outbreak. Id. at *15. The Court also declined subclass A's request for emergency writs of habeas corpus, concluding that they had failed to exhaust available state court remedies. Id. at *6. B. The Sheriff's response and current conditions at the Jail
1. April 13 status report On April 13, pursuant to the Court's direction, the Sheriff filed a status report regarding compliance with the TRO. First, with respect to the directive to test symptomatic detainees, the Sheriff reported that Cermak Health Services, an arm of Cook County that provides healthcare to persons detained at the Jail, maintains the
11

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supplies for medical testing and actually administers such tests.4 According to the Sheriff, Cermak had determined that it would not be medically appropriate to test all detained persons in quarantine. The Sheriff therefore instructed his personnel to isolate and refer symptomatic detainees to Cermak for further evaluation and testing.
As to the order to maintain social distancing during the Jail's intake process, the Sheriff implemented a modified procedure that maintains six feet of distance between all detained persons awaiting intake and provides them with facemasks. Use of the bullpens was discontinued.
Regarding the order to distribute facemasks, the Sheriff stated that he had acquired and on hand sufficient surgical masks to distribute to all quarantined detainees and employees and that he was continuing his efforts to obtain additional masks. Additionally, the Sheriff was in the process of procuring cloth masks that would be available to any detained person who requested one.
The Sheriff further reported that on April 9, he delivered approximately 28 gallons of hand sanitizer and 980 bars of soap for distribution in the Jail. He also ordered distribution of soap and sanitizer twice per week going forward. The Sheriff noted concern that some detained persons may use the soap or hand sanitizer as a weapon and that some might try to consume hand sanitizer. These considerations required the Sheriff to determine on a detainee-by-detainee basis whether to distribute hand sanitizer or soap.
With respect to the sanitation-related directives in the TRO, the Sheriff reported
4 From a chain-of-command standpoint, Cermak is under the control of Cook County, not the Sheriff.
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that he had distributed cleaning supplies to staff and detained persons on April 10. He also issued a sanitation policy to ensure that frequently touched areas such as doorknobs and phones are sanitized between uses. He issued another a policy requiring each living unit officer to ensure that surfaces are routinely cleaned and sanitized during the officer's shift. Additionally, the Sheriff stated that he was planning to hire an independent contractor to professionally clean the Jail.
2. April 17 updates from the Sheriff On April 17, three days after the Sheriff submitted his status report, officials from the Chicago Department of Public Health (CDPH), including one designated as a CDC epidemic intelligence service officer, inspected the Jail. These officials had toured the Jail roughly a month prior, on March 20, and issued recommendations for controlling COVID-19 at the Jail. A report from this inspection, dated March 27, was introduced in connection with the preliminary injunction hearing held on April 23. The March 27 recommendations from the CDPH included screening and classifying inmates based on their level of risk associated with coronavirus disease and "considering mass release of inmates to decompress the jail for urgent public health reasons." Levin Dec. (dkt. no. 70) at 10. A report from the more recent April 17 had not yet been received by the Sheriff as of the April 23 hearing. The Sheriff therefore submitted statements and testimony from two Jail officials who participated in the April site visit: Rebecca Levin, a senior public health advisor to the Sheriff, and Michael Miller, the Executive Director of the Cook County Department of Corrections. Levin stated that during the April 17 inspection, the officials commended the Jail's efforts to reduce density in housing units.
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Miller testified that the officials visited two of the dormitory units—Dorm 4, the largest dormitory unit, and Dorm 2—and commented positively about the organization and cleanliness of these spaces.
In a declaration dated April 17, Miller also provided an update to the Sheriff's April 14 status report on efforts to control the coronavirus outbreak at the Jail. He reported that each person detained in a quarantine tier was receiving a new surgicaltype facemask each day. Miller anticipated that at its current rate of consumption of masks, the Sheriff would exhaust his supplies on June 7, 2020. He added that, "as supplies permit," the Sheriff planned to distribute masks to detainees who are not on quarantine tiers. Miller Dec., Def.'s Resp. to Renewed Mot. for Prelim. Inj., Ex. E (dkt. no. 62-5) ¶ 24.
Although the TRO did not require the Sheriff to implement social distancing beyond modifying his intake procedures, Miller reported in his April 17 affidavit that the Sheriff had engaged in a significant effort to increase social distancing at the Jail. Specifically, he reported the following measures: opening previously closed divisions to better distribute detainees across available space; converting housing on 175 tiers to single-occupancy cells only; limiting dormitory units to fifty percent of capacity, with the exception of detainees in medical or "restricted housing," id. ¶ 12; and limiting the number of detained persons released into dayroom common areas to half the number assigned to that area. He reported that beds in dormitory units have been spaced so that they are at least six feet apart, and if beds are bolted to the floor, then detained persons are distributed so that there is six feet of distance between occupied beds.
Attached to Miller's declaration was a spreadsheet with the occupancy rates as of
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April 17 on each tier of the Jail, including units in Cermak and Division 8, the Residential Treatment Unit (RTU). Miller later explained that the RTU provides twenty-four-hour access to medical care and houses people who have medical needs (though the level of need was not described). This spreadsheet showed, apparently contrary to the statement in Miller's declaration, that some dormitory units were still occupied above fifty percent capacity. For example, Tier D of Dorm 1 in Division 2, which was not then under quarantine, was occupied at eighty-one percent capacity. In addition, many dormitory units in the RTU, Division 8, were occupied at nearly full capacity. For example, Tier 2F was occupied at ninety-seven percent capacity, and Tier 2G was occupied at one hundred percent capacity. (Also, Tiers 2Q and 2R in Division 6 were occupied at sixty percent and sixty-three percent capacity, respectively. They are not labeled as dormitory units in the spreadsheet, but they each have a forty-person capacity.)
The Sheriff submitted additional evidence reflecting that his ability to implement social distancing had increased by virtue of, among other things, a significant expansion of the electronic home monitoring program. He offered a chart showing a steady decline in the Jail's daily population over the previous month, including a reduction of roughly 230 detainees between April 9, when the Court issued the TRO, and April 17. Another chart showed a steady increase in the jail's electronic home monitoring population over the previous month, with an increase of approximately 300 detainees on electronic home monitoring between April 9 and April 17. The Sheriff also offered evidence, however, that utilization of this program had been extended to its outside limits, or nearly so, in light of the apparent exhaustion of program vendor's supply of
15

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monitoring equipment. 3. Plaintiffs' reports regarding conditions at the Jail In anticipation of the preliminary injunction hearing, the plaintiffs submitted a
number of affidavits identifying problems or deficiencies in the Sheriff's compliance with the directives in the TRO. These affidavits were from individuals who had spoken to detained persons between April 14 and April 18, and they described these persons' current experiences at the Jail. According to these affidavits, symptomatic individuals are not being tested. Additionally, although facemasks are now being distributed, detainees reported, it is not happening regularly.
The detained persons discussed in the affidavits also reported inadequacies in cleaning and sanitation practices at the Jail. Several stated that detained persons lack cleaning supplies for their individual cells and that some common spaces lack cleaning supplies as well. And even where cleaning solution is available, they reported, cloths or wipes have not been provided to enable use of the solution. A number of detainees also reported that commonly used objects, such as telephones, are not being sanitized between uses. In addition, they stated, the Jail's staff has not been cleaning cells, and some common areas are cleaned only every other day, meaning they stand uncleaned despite multiple uses and repeated touching by numerous detained persons and potentially staff personnel.
The detainees also reported an inability or great difficulty in practicing social distancing. In common areas where detained persons eat, several stated, it has been impossible to practice social distancing due to the arrangement of picnic-style benches. Tape or paint markings have been placed on the floor in some dayrooms to designate
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appropriate space for social distancing, but, they reported, some correctional officers have mocked the practice of social distancing, and many have failed to enforce it. By way of example, detained persons have been using, at the same time, telephones that are spaced only two feet apart. C. The renewed preliminary injunction motion
In their renewed motion for a preliminary injunction, filed on April 14, 2020, the plaintiffs contend that the Sheriff's efforts in response to the TRO "have not worked and cannot work to abate the spread of the disease" caused by the coronavirus. Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 4. The plaintiffs focus primarily on two inadequacies of the Sheriff's efforts to date: failure to identify and transfer medically vulnerable detainees out of the Jail, and insufficient social distancing, which, the plaintiffs contend, "is the only way to prevent intolerable risk to [their] health and lives." Id. at 2.
The plaintiffs request the following in their renewed motion for a preliminary injunction. First, they ask for a preliminary injunction ordering the Sheriff to mandate social distancing throughout the Jail. In support of this request, the plaintiffs have submitted the declaration of Dr. Gregg Gonsalves, an epidemiologist at the Yale School of Medicine and School of Public Health, who opined that social distancing is "the only way to prevent further, essentially uncontrolled, spread of the virus" in the Jail. Id., Ex. G (dkt. no. 55-7) ¶ 29. In the alternative, the plaintiffs argue that if the Court concludes that additional social distancing is not possible, an order should be entered requiring the Sheriff to transfer detained persons to another safe facility, or the Court should request convening a three-judge panel with the authority to order the release of detainees, as
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required under the Prison Litigation Reform Act . See 18 U.S.C. § 3626(a)(3)(B). In addition, subclass A has renewed its request for issuance of emergency writs of habeas corpus.5
In response, the Sheriff argues that he has sufficiently addressed the risks to the health of persons in his custody, in accordance with constitutional requirements, through the protective measures he has already implemented; his efforts were consistent with the recommendations in the CDC Guidelines; and he has taken substantial steps to implement social distancing. The Sheriff also appears to contend that further implementation of social distancing was not realistically possible in the Jail at this time. In response to the plaintiff's contention that the Sheriff has not adequately abated the risk of infection to medically vulnerable detainees, he argues that he cannot screen such individuals, because he does not have access to detained persons' health information. Furthermore, the Sheriff has explained, he already refers all medical complaints and issues to Cermak, and nothing more on his part is required to satisfy the requirements of the Fourteenth Amendment.
In their reply brief, the plaintiffs acknowledge that the Sheriff has taken "dramatic steps" to increase social distancing in the Jail. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 6. They contend, however, that these efforts have been insufficient to remedy the constitutional violation. They reaffirm their request to immediately convene a three-judge court to determine whether to release detained persons. They also reaffirm their request for a preliminary injunction mandating social
5 The plaintiffs also sought expedited discovery, but that largely became a moot point in light of later developments, so the Court does not discuss the request here.
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distancing throughout the Jail as well as transfer of detained persons to "some other safe location," id. at 2, and they ask the Court to issue such an order contemporaneously with a request to convene a three-judge panel. Additionally, the plaintiffs ask the Court to convert the TRO to a preliminary injunction.
1. Hearing on motion for preliminary injunction The Court held an evidentiary hearing on the preliminary injunction motion by videoconference on April 23, 2020. In light of the unusually compressed time schedule necessitated by the development of the coronavirus pandemic and increases in confirmed coronavirus infections at the Jail, the Court determined that it would consider the parties' affidavits (giving due consideration to issues regarding weight) and would permit each side to call one live witness. Executive Director Miller testified as the Sheriff's witness; he offered, among other things, updates to his April 17 affidavit regarding the Sheriff's efforts to manage the coronavirus outbreak. With respect to screening medically vulnerable detainees, Miller testified that the Jail was doing what it could based on the limited medical information that it has available. Miller explained that Cermak conducts a medical evaluation of every detained person at intake, and based on this, it transmits information called "alerts" to the Jail to inform housing decisions based on medical needs. These alerts do not contain any diagnostic information; rather, they simply specify the accommodations necessary to address a medical need. For example, an alert from Cermak may inform the Jail that a detained person should be housed on a bottom bunk, but it will not state the medical reason for this determination. Miller testified that Cermak has not "yet" created an alert for those who have heightened risk of severe health consequences
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from a coronavirus infection. Without such an alert, Miller explained that the Jail is conducting coronavirus screening based on any medical information about a detained person that it already has, including existing alerts.
Miller also reported that the Jail had made additional efforts to implement social distancing. To encourage persons housed in dormitory units to stay at their beds rather than congregating in common spaces, the Jail has been providing them with free books, writing pads, and puzzle books. In addition, Miller stated, detainees throughout the Jail are now released to use shared shower facilities one at a time. In common areas, sixfoot intervals have been demarcated with spray paint markings. Correctional officers, Miller said, have been trained to enforce social distancing by first communicating to detained persons the importance of maintaining the distance, and if that fails, using disincentives such as loss of microwave privileges. Miller acknowledged that despite this, detainees have not always been practicing social distancing and that they continue to congregate in common spaces such as eating areas.
Miller reported that the Jail's staff has worked diligently to increase the Jail's ability to reduce the density of the population in its housing units. Over the past month, he stated, the Jail has opened up several hundred additional housing units. Between April 17 and April 23, the Jail doubled the number of detainees housed in singleoccupancy cells, and this effort included moving 260 detainees out of double-occupancy cells. Miller stated that there are currently no detainees housed in double-occupancy cells without a medical or security reason. Most of those who are still in doubleoccupancy cells, he said, are either housed by Cermak or are designated by Cermak as requiring placement in a double-occupancy cell due to a health condition or possible
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suicide risk. Miller did not explain why a health condition might require placement in a double-occupancy cell. Some of those in double-occupancy cells have been placed there, he said, due to disorderly conduct—though, again, he did not explain how doublecelling serves a security purpose in such situations. Miller acknowledged on cross examination that social distancing is impossible for persons housed in doubleoccupancy cells.
Miller also reported that roughly 1,000 detainees are still being housed in dormitory units. He stated that approximately seventy percent of that population must remain in those units due to a medical need, though he did not explain this. As for the remainder, Miller cited one possible non-medical reason that some detainees must remain in dorm units: they are housed there in accordance with requirements of the Prison Rape Elimination Act. He explained that it would be "very challenging to try to separate those individuals and keep them protected as we need to under the PREA Act so that those individuals are not vulnerable in other areas while they're incarcerated." April 23, 2020 Tr. at 46–47. Again, however, Miller did not explain this.
Miller supplemented his testimony with an updated spreadsheet showing the occupancy of the Jail's housing units as of April 23. This spreadsheet showed that the capacity of almost every tier that was not in Cermak, the RTU, or under quarantine was fifty percent or below. However, in Division 2, Tier D1-D was at eighty-one percent capacity, and Tier D4-R was at fifty-nine percent (Tier D3-B was right at fifty percent). A number of Cermak and RTU tiers had occupancy rates as high as ninety-seven or one hundred percent.
On cross examination, the plaintiffs' counsel asked Miller about the high
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occupancy levels in certain Cermak and RTU tiers reported in the April 17 and April 22 spreadsheets. Miller explained that Cermak needed to house those individuals together to be able to provide them with access to care at all hours of the day or night. Miller acknowledged that social distancing was not possible for those housed in the Cermak and RTU tiers.
Plaintiffs' counsel also asked Miller about a high occupancy rate listed in the April 17 spreadsheet for a tier (referenced above) that was not in Cermak, the RTU, or under quarantine: Tier D of Dorm 1 in Division 2, which was then at eighty-one percent capacity. The April 22 spreadsheet showed that the dorm was still at the same capacity. Miller stated: "There's another security level and/or issue with having this many people on this tier that we've had to abide by." Id. at 31. He did not clarify the nature of the security issue. Miller acknowledged that social distancing was not possible for detainees on that tier.
When the Court asked Miller if there was still room at the Jail to move more detainees out of dorms and into cells, Miller responded, "I do have a plan in my back pocket." Id. at 57. He explained that he was working on moving people out of Dorms 1, 2, and 3. He added that the Jail is considering reconfiguring housing arrangements on tiers for detainees who are women to see if there is a way to create more capacity, presumably to disperse the much larger population of detainees who are men.
As for cleaning and sanitation of common areas, Miller reported that detainees have been given the supplies they need to do sanitation; he attributed shortfalls in sanitation to their own behavior. For example, he stated, at each microwave stations and shared showers and toilets, detained persons have been provided cleaning solution
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so that they can sanitize the facility prior to use. Finally, Miller stated, to ensure implementation of its response measures, such
as sanitation of common areas or use of PPE, the Sheriff has deployed "audit teams" that oversee these efforts. For example, the Jail has a PPE audit team that patrols PPE use and educates staff members and detained persons who are not using PPE properly.
Plaintiffs called as their hearing witness Dr. Homer Venters, a medical doctor with over a decade of experience in correctional health. Dr. Venters is the former Deputy Medical Director of the New York City Jail Correctional Health Service, a position in which he oversaw care of detainees and medical policies governing care in New York City's twelve jails. He had previously submitted a declaration along with plaintiffs' preliminary injunction reply brief. At the hearing, he testified that, in his view, the Jail's coronavirus response efforts have three key deficiencies: (1) lack of a cohesive coronavirus response plan; (2) failure to screen for individuals at higher risk of experiencing severe health consequences from a coronavirus infection; and (3) insufficient social distancing.
First, Dr. Venters explained that having a cohesive plan, rather than a collection of policy documents that address different aspects of emergency response, is a critical first step to addressing an outbreak of a communicable disease in a jail facility. He stated that because jails are such complex systems, employing and housing several thousand people, it is not possible to respond to a large outbreak without a single, coordinate plan that coordinates response measures implemented by security, health, and administrative staff.
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Second, Dr. Venters testified that screening medically vulnerable individuals is critical so that they can immediately receive heightened surveillance of possible symptoms of a coronavirus infection. This heightened surveillance would entail daily checks on those individuals for symptoms such as elevated temperature, shortness of breath, and fatigue.
Third, Dr. Venters emphasized the importance of social distancing in combatting the spread of coronavirus. In his declaration, Dr. Venters stated that medical literature on the coronavirus confirms that social distancing is an essential strategy in controlling an outbreak. During the hearing, he explained that because the coronavirus spreads so easily through respiratory droplets emitted from an infected person, transmission "is greatly impeded by physical distance that we establish through social distancing." Id. at 67.
During his testimony, Dr. Venters emphasized that practicing social distancing only in some specific areas of a congregate setting like the Jail is insufficient to curb virus transmission rates. Because people are densely packed in many contexts during routine operations of a detention facility—e.g., sleeping areas, dayrooms, shower facilities, and areas where medication is dispensed—it is critical to implement social distancing throughout the entire facility. Dr. Venters explained that a "lack of a full commitment or complete commitment to social distancing" in the Jail would promote faster transmission of the coronavirus, and more detainees and staff would become "seriously ill." Id. at 74. In his declaration, Dr. Venters had observed that the concern about severe health effects is heightened when considering detainees, because they are statistically more likely than the general public to have pre-existing health problems
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such as cardiovascular disease and cancer. Dr. Venters also discussed the importance of communication with detainees and
staff as a means to ensure that they practice social distancing in an appropriate way. Specifically, he said, to ensure widespread observance of this practice, individuals must understand what social distancing means and why it is important.
On cross examination, Dr. Venters acknowledged that outbreak management in a correctional setting imposes "unique challenges," id. at 79, and that the CDC Guidelines are "now the most important set of principles" on response, id. at 81. He also acknowledged that the CDC Guidelines provide that social distancing might not always be feasible in a correctional setting.
Dr. Venters testified that although use of single-occupancy cells facilitates social distancing, doing so poses a risk of increasing detainees' psychological distress from social isolation. He also testified that the Jail's practice of housing detainees with mental health conditions in double-occupancy cells is inappropriate, because they cannot practice social distancing at all. Though these two concerns point in opposite directions, Dr. Venters reconciled them by clarifying that, in the current pandemic environment, housing detainees in single-occupancy cells is preferable to doubleoccupancy because social distancing is critical. To address the psychological toll of isolation in single-occupancy cells, Dr. Venters testified, the Jail should provide opportunities for detained persons to come out of their cells and benefit from engagement with others in common areas while practicing social distancing.
Dr. Venters's testimony largely buttressed the points made by several other medical doctors and epidemiologists in affidavits and declarations that the plaintiffs had
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attached to their complaint and briefing of this motion. The plaintiffs' medical, public health, and correctional health experts have analogized the conditions in the Jail to those on cruise ships, which have experienced some of the largest concentrated outbreaks of the coronavirus. Specifically, these experts observe, a jail, like a cruise ship, is an environmentally enclosed, congregate-living setting with high levels of movement of people. Mohareb Dec., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj., Ex. B (dkt. no. 64-3) at 5; Gonsalves Dec., Pls.' Renewed Mot. for Prelim. Inj., Ex. G (dkt. no. 55-7) ¶¶ 17, 27; Med. Profs.' Dec., Compl., Ex. B (dkt. no. 1-2) ¶¶ 24, 25, 26.
In particular, Dr. Amir Mohareb, a medical doctor who is a biothreat response expert and an instructor at Harvard Medical School, used the example of the Diamond Princess cruise ship to highlight the importance of social distancing. The Diamond Princess sailed from Japan to Hong Kong in January of this year. After one of its passengers tested positive for the coronavirus in the last week of January, "strict precautions of hand hygiene and cabin isolation were implemented for all crew and passengers." Mohareb Dec. (dkt. no. 64-3) at 5. Despite these efforts, 700 of the people who had been on the ship tested positive for the virus over the course of the following month. This example, Dr. Mohareb, said, reflects that in the context of a congregate living arrangement like a cruise ship, hand hygiene and cabin cell isolation are insufficient to control the transmission of the coronavirus. He stated that a jail, which is similarly a congregate environment, "constitutes an equal or greater risk setting to that of a cruise ship." Id.
Dr. Mohareb explained that because respiratory droplets emitted by an infected person can travel up to six feet and be inhaled by another, social distancing is "a
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necessary intervention to prevent the spread of infection" from the coronavirus. Id. at 3, 6. He emphasized that social distancing is particularly important because an infected person may be mildly symptomatic or not symptomatic at all. Dr. Mohareb also noted that numerous authoritative bodies, including the CDC, the World Health Organization, and the Infectious Diseases Society of America, have recommended social distancing to control the transmission of coronavirus. He added that mathematical modeling supports a conclusion that social distancing is "the primary means by which individuals can be safely protected from the threat of COVID-19." Id. at 5.
All of the plaintiffs' expert affidavits emphasized the critical need to implement social distancing in order to meaningfully control the spread of the virus. Gonsalves Dec. ¶ 29 (social distancing is the "only way" to control outbreak); see also RasmussenTorvik Dec., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj., Ex. C (dkt. no. 64-4) ¶ 9. They reiterated Dr. Venters's point that the very design of a correctional facilities promotes transmission of the coronavirus because it densely packs large groups of people together. Dr. Gonsalves stated that although correctional facilities are like cruise ships in that they are enclosed environments, they present an even higher risk of rapid transmission of the coronavirus because of "conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources." Gonsalves Dec. ¶ 17. In a joint declaration, five medical doctors with experience working in a correctional setting—including three doctors who had worked at the Jail—similarly observed that the "crowded congregate housing arrangements" of jails and prisons promote the transmission of respiratory illnesses like the coronavirus disease. Med. Profs.' Dec. (dkt. no. 1-2) ¶ 24
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Beyond providing additional support for the points in Dr. Venters's testimony, the plaintiffs' other medical and public health experts added that the risks of severe health consequences from a coronavirus infection are not limited only to those who have preexisting medical conditions or are over the age of sixty-five. According to Dr. Gonsalves, "young and healthy individuals may be more susceptible than originally thought." Gonsalves Dec. ¶ 5. He reported that in March, the CDC reported that onefifth of infected people between the ages of twenty to forty-four had been hospitalized. Dr. Mohareb also stated that "a fraction of patients with COVID-19 in all groups go on to develop severe respiratory disease." Mohareb Dec. at 1.
At the conclusion of the April 23 preliminary injunction hearing, the Court extended the TRO, which was set to expire that day, pending its ruling on the motion for a preliminary injunction.
Discussion "A preliminary injunction is an extraordinary remedy." Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). A court's determination of whether to issue a preliminary injunction or temporary restraining order involves a two-step inquiry, with a threshold phase and a balancing phase. Id. First, the party seeking the preliminary injunction has to make a threshold showing, which has three elements: (1) reasonable likelihood of success on the merits of the claim; (2) irreparable harm to the movant absent preliminary injunctive relief; (3) lack of adequate remedies at law. Id. If the movant makes the threshold showing, the court proceeds to the balancing step, in which it determines "whether the balance of harm favors the moving party or whether the harm to other parties or the public
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sufficiently outweighs the movant’s interests." Id. Because they request relief that changes the status quo or requires the Sheriff to
take affirmative action, the plaintiffs are requesting what is sometimes referred to as "mandatory" preliminary injunctive relief. See Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997); O'Malley v. Chrysler Corp., 160 F.2d 35, 37 (7th Cir. 1947); cf. Schrier v. Univ. Of Co., 427 F.3d 1253, 1260 (10th Cir. 2005) ("[D]etermining whether an injunction is mandatory as opposed to prohibitory can be vexing."). Mandatory preliminary injunctions typically are "cautiously viewed and sparingly issued." Graham, 130 F.3d at 295 (quoting Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)); see also Knox v. Shearing, 637 F. App'x 226, 228 (7th Cir. 2016). But "there may be situations justifying a mandatory temporary injunction compelling the defendant to take affirmative action" based on the circumstances, Jordan, 593 F.2d at 774, and "the clearest [of] equitable grounds," W. A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958). At least two courts have recognized the unusual nature of mandatory preliminary injunctions and yet issued them after finding violations of the rights of people in custody during the coronavirus pandemic. See Barbecho v. Decker, No. 20-CV-2821 (AJN), 2020 WL 1876328, at *2, 8–9 (S.D.N.Y. Apr. 15, 2020); Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *2, 14–15 (W.D.N.Y. Apr. 2, 2020).
In assessing each claim, the Court will address the first threshold requirement for a preliminary injunction: likelihood of success on the merits, which requires showing only a "better than negligible" chance of success. Whitaker, 858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). Generally speaking, "[t]his is a
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low threshold," id., but the Court gives the matter greater scrutiny here in light of the fact that plaintiffs are seeking affirmative conduct by the Sheriff. A. Habeas corpus claim
Plaintiffs and subclass A have petitioned for a writ of habeas corpus under 28 U.S.C. § 2241. The Court first addresses the issue of exhaustion of remedies and then considers subclass A's ability to satisfy the criteria for a representative action.
1. Exhaustion As the Court concluded in its TRO decision, a petition for a writ of habeas corpus under 28 U.S.C. § 2241 is the appropriate mechanism for a state pretrial detainee to challenge his or her detention. Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015). "Because a pre-trial detainee is not yet in custody pursuant to the judgment of a State court, relief under 28 U.S.C. § 2254 is not available." Id. (internal quotation marks omitted). Section 2241 has no express exhaustion requirement, but courts apply a common-law exhaustion rule. Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004). A pretrial detainee must "exhaust all avenues of state relief" before seeking a writ of habeas corpus through a section 2241 action. See United States v. Castor, 937 F.2d 293, 296–97 (7th Cir. 1991). Although there are exceptions, "the hurdle is high." Richmond, 387 F.3d at 604. In deciding whether an exception applies, courts "must balance the individual and institutional interests involved, taking into account 'the nature of the claim presented and the characteristics of the particular administrative procedure provided.'" Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting McCarthy v. Madigan, 503 U.S. 140, 146 (1992), superseded by statute on other
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grounds as recognized in Porter v. Nussle, 534 U.S. 516 (2002)). A court may excuse exhaustion where:
(1) requiring exhaustion of administrative remedies causes prejudice, due to unreasonable delay or an indefinite timeframe for administrative action; (2) the agency lacks the ability or competence to resolve the issue or grant the relief requested; (3) appealing through the administrative process would be futile because the agency is biased or has predetermined the issue; or (4) where substantial constitutional questions are raised. Id. It is undisputed that a state court has the authority to release a pretrial detainee. A person who is detained in Illinois may challenge his or her detention by seeking judicial review of his or her bond. 725 Ill. Comp. Stat. Ann. 5/110-6. On March 23, 2020, in response to an emergency petition filed by the Cook County Public Defender, the Presiding Judge of the Cook County Circuit Court's Criminal Division issued an order setting out an expedited bond hearing process that applied to seven designated classes of detained persons. Def.'s Resp. to Mot. for TRO, Ex. E (dkt. no. 31-1) at 1–2. The seven classes included those at an elevated risk of contracting coronavirus due to their ages or underlying medical conditions—that is, the putative members of subclass A. Id. The expedited hearings took place from March 24 through March 27. Id. at 3–5. Although the expedited hearings do not appear to be currently ongoing, Cook County's courts are still available for emergency matters, and judges are hearing motions to review or reduce bail daily at all locations where court is held. Def.'s Supp. Resp. to Mot. for TRO, Ex. A (dkt. no. 41-1) at 1. In the TRO decision, the Court concluded that the plaintiffs—who both were named as representatives of subclass A—could not show that they exhausted available state remedies before petitioning for habeas corpus because they did not "contend that
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they sought expedited bond hearings or initiated any sort of state proceedings challenging their bonds." Mays, 2020 WL 1812381, at *6. The Court declined to excuse exhaustion because it found that the state's existing bond reduction process is "anything but futile"; the plaintiffs did not show that the process is "unduly timeconsuming in a way that undermines their claimed constitutional rights"; and they did not show that state courts cannot remedy the type of constitutional violations they raise. Id.
After the Court issued its decision, the plaintiffs' counsel learned that Foster had sought release in the Circuit Court of Cook County through an expedited bond hearing. (The plaintiffs do not contend that Mays separately sought release in state court prior to the filing of this lawsuit.) Foster is charged with domestic battery, robbery, and unlawful restraint. Pls.' Renewed Mot. for Prelim. Inj., Ex. F (dkt. no. 55-6) at ECF p. 3 of 17. His bail was set at $50,000, requiring him to post $5,000 to be released, which he is unable to afford. Id. In his motion to reduce bond, he described his serious medical conditions and explained that they place him at a heightened risk of becoming critically ill if he contracts coronavirus. Id. at ECF p. 4–5 of 17. He also argued that it would violate his constitutional rights to keep him in custody during the coronavirus pandemic. Id. at ECF p. 13 of 17. On April 2, 2020, a state trial judge heard and denied Foster's motion. See id. at ECF p. 16 of 17.
The plaintiffs argue that Foster has sufficiently presented his request to the state courts and should not be required to do more. They acknowledge that he has not exhausted all avenues of state relief: he could appeal the state court's denial of his motion to reduce his bond, but plaintiffs do not contend that he done so. They argue,
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however, that the Court should excuse exhaustion based on the futility of an appeal or the Court's equitable authority to excuse exhaustion. They contend that an appeal would take weeks to pursue, making appellate remedies practically unavailable to him in light of the urgency of the coronavirus pandemic and causing an unreasonable delay that would force him to continue to suffer the alleged harm. In support of this contention, they offer an affidavit from Lester Finkle, the Chief of Staff to the Cook County Public Defender, who explains the procedure for interlocutory appeals of denials to modify bail. Pls.' Renewed Mot. for Prelim. Inj., Ex. C (dkt. no. 55-3). Under Illinois Supreme Court Rule 604(c), before a defendant can file such an appeal, he must file a verified motion in the trial court providing certain information about himself. Id. ¶ 2. Only after the trial court denies the verified motion can the defendant file an appeal. Id. The affidavit submitted by the plaintiffs reflects that this process typically takes two to four weeks. Id. ¶ 5. After that, if the appellate court denies the defendant's appeal, he can seek discretionary review in the Illinois Supreme Court. Id. ¶ 3. Based on this information, the plaintiffs argue that their state-court remedies are futile or practically unavailable and that requiring them to pursue these remedies would unfairly prejudice them.
The plaintiffs' contentions are not persuasive. Their only evidence, Finkle's affidavit, describes how long such an appeal would take under ordinary circumstances. But here we are not dealing with not ordinary circumstances. The affidavit does not adequately show how the state appellate process would be expected to work for a medically vulnerable detainee claiming that due to a global pandemic that has infiltrated the Jail, he faces immediate risk of serious health consequences unless his bail is
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reduced. We know the state courts are capable of dealing with emergency requests of this type promptly and efficiently; Cook County trial court judges dealt quickly and efficiently with hundreds of such requests in late March, and they continue to do so now. There is no reason to believe that the Illinois Appellate Court would treat such an appeal as an ordinary, run-of-the-mill bail issue and would refuse to deal with it promptly. Although a court may excuse exhaustion in the unusual case where a state process would cause an unreasonable delay, see, e.g., Gonzalez, 355 F.3d at 1016, the plaintiffs have not established that this is so in the present situation.
The plaintiffs also contend that the existing bond review processes provide no effective remedy for the claims that the class members advance in this case. Specifically, they contend that the Illinois statute governing bail, 725 Ill. Comp. Stat. Ann. 5/110-5, does not require state courts to consider a detained person's medical health in deciding whether to set or reduce the amount of bail and that state judges making those decisions would not be expected to consider the medical risks at the Jail. But they point to no evidence that state courts are not permitted to consider detained persons' medical conditions, let alone that state courts reviewing bonds are not actively considering detained persons' medical conditions in light of the coronavirus pandemic. To the contrary, the evidence in the record suggests that state courts are considering the medical dangers the coronavirus presents to detained persons. As the Court indicated in its TRO decision, between early March and early April 2020, the Jail's population decreased by over 1,175 detainees, Mays, 2020 WL 1812381, at *6; since then, the population has decreased by at least 300 more detainees, see Def.'s Resp. to Renewed Mot. for Prelim. Inj., Ex. A (dkt. no. 62-1) at 1. An affidavit submitted by the
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plaintiffs reflects that this reduction in the Jail's population has occurred, at least in part, because state court judges have granted bond reductions. See Pls.' Renewed Mot. for Prelim. Inj., Ex. B (dkt. no. 55-2) ¶ 3 (state courts released 719 detainees through an expedited process for bond reconsiderations in light of the coronavirus pandemic). In short, the contention that state courts cannot or will not consider detained persons' medical conditions in bond review proceedings is unsupported. Accordingly, the Court concludes that the plaintiffs have not shown that the state courts do not provide an effective remedy for detained persons with medical conditions that place them at a high risk of severe illness or death if they contract coronavirus.
The plaintiffs also appear to argue that the state courts cannot provide an adequate remedy because, they contend, unlike the federal habeas claims in this case, state courts can consider factors other than medical need. That contention is based on an erroneous premise, which the Court will discuss momentarily, that a district court addressing a habeas corpus petition challenging jail conditions under section 2241 cannot or would not consider other factors such as whether a detainee poses a threat to public safety. The bottom line is that the plaintiffs have not shown that the bond reduction remedy offered by the state courts is any less effective than a federal remedy.
For these reasons, the Court concludes—as it did in its TRO decision—that the plaintiffs have no likelihood of success on the habeas corpus claim advanced by them on behalf the representatives of subclass A due to their failure to exhaust available state court remedies.
2. Representative action Even if the plaintiffs could establish some likelihood of success on their
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contention that the failure to exhaust state remedies should be excused, they would be unable to satisfy the criteria for a representative action. Although the Court need not actually certify a representative action at this point, before issuing a preliminary injunction it would need to find that the requirements for such an action conditionally would be met. Mays, 2020 WL 1812381, at *3 (collecting cases). Because the plaintiffs cannot satisfy those requirements, the representative class has no likelihood of success on the merits.
In the Seventh Circuit, the Federal Rule of Civil Procedure that governs class actions, Rule 23, does not apply to habeas corpus proceedings. Bijeol v. Benson, 513 F.2d 965, 967–68 (7th Cir. 1975); cf. Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010). But representative actions—which are analogous to class actions—on rare occasions can be brought in habeas corpus proceedings. Bijeol, 513 F.2d at 967–68; see also United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 220–21 (7th Cir. 1976); Kazarov v. Achim, No. 02 C 5097, 2003 WL 22956006, at *8 (N.D. Ill. Dec. 12, 2003); United States ex rel. Green v. Peters, 153 F.R.D. 615, 619 (N.D. Ill. 1994); Faheem-El v. Klincar, 600 F. Supp. 1029, 1033 (N.D. Ill. 1984). The Seventh Circuit has not "set down a strict formula which must be mechanically followed" before people in custody can bring a representative habeas corpus action. Morgan, 546 F.2d at 221. Instead, it has suggested that courts can look to the provisions of Rule 23 in determining whether a representative action is appropriate, though courts need not "precisely" comply with Rule 23. Id. n.5. The Court thus finds that Rule 23 is instructive in analyzing whether plaintiffs can bring a representative action. The parties seem to agree; they discuss the issue within the framework of Rule 23.
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To bring a class action, and by analogy a representative action, a plaintiff must show that the proposed class meets the four requirements of Rule 23(a): "numerosity, commonality, typicality, and adequate representation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). In addition, "the proposed class must satisfy at least one of the three requirements listed in Rule 23(b)." Id. at 345. The plaintiffs here rely on, or analogize to, Rule 23(b)(2), which applies when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2).
The parties dispute whether subclass A satisfies each requirement of Rule 23, as applied to representative actions, apart from numerosity. The Court discusses each disputed requirement in turn.
a. Commonality To establish that they are likely to satisfy the commonality requirement, the plaintiffs must show that there likely "are questions of law or fact common to" the members of subclass A. Fed. R. Civ. P. 23(a)(2). "That language is easy to misread." Wal-Mart, 564 U.S. at 349. "Commonality requires the plaintiff[s] to demonstrate that the class members have suffered the same injury." Id. at 349–50 (internal quotation marks omitted). In addition, "[t]heir claims must depend upon a common contention" for which the "determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. at 350. Thus "what matters . . . is not the raising of common ‘questions' . . . but rather, the capacity of a [representative] proceeding to generate common answers apt to drive the resolution of the litigation." Id.
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at 350 (emphasis omitted). "Where the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members, there is a common question." Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014).
Subclass A conditionally satisfies the commonality requirement because the plaintiffs likely can show that its members "suffered the same injury." See Wal-Mart, 564 U.S. at 349–50. Specifically, the members of subclass A can show that the Sheriff's response to the coronavirus pandemic gave rise to their habeas claim. In addition, the plaintiffs point to several questions the determination of which, they contend, will resolve issues that are central to the validity of their habeas claim. For purposes of commonality, the Court need consider only one: whether coronavirus presents so severe a risk of harm to some people in the Sheriff's custody such it is unconstitutional to confine them in in the Jail.6 In a representative proceeding, a common answer to that question likely would drive the resolution of the litigation by resolving a core issue underlying subclass A's request for a writ of habeas corpus.
The Sheriff contends that subclass A cannot satisfy the commonality requirement because its members seek habeas corpus relief that would require individual proceedings or determinations. But issues pertaining to the individualized nature of the desired injunctive relief go to the requirements of Rule 23(b), not commonality. See id.
6 The Court notes that the plaintiffs posed different questions in their motion for class certification than in their reply brief in support of their motion for a preliminary injunction. Compare Pls.' Mot. to Cert. Class (dkt. no. 6) at 7–8 with Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21–22. Which particular question the Court identifies as conditionally satisfying the commonality requirement makes no difference for the purpose of this opinion. Regardless, at least one question the plaintiffs pose in their reply brief would also satisfy the commonality requirement: whether detainees in the Jail, as a matter of due process, are entitled to practice social distancing consistent with people in the community at large.
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at 360–62; Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 379–80 (7th Cir. 2015). In other words, the commonality requirement of Rule 23(a) does not demand that the relief ultimately awarded to each plaintiff be the same. See id.; Suchanek, 764 F.3d at 756 (commonality of relief is not essential); In re IKO Roofing Shingle Prod. Liab. Litig., 757 F.3d 599, 602 (7th Cir. 2014) ("[The commonality requirement as discussed in] Wal– Mart has nothing to do with commonality of damages."). Nor is this a case in which the commonality requirement is not satisfied because individual plaintiffs experienced the harm in meaningfully different ways. Cf. Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497–98 (7th Cir. 2012) (class of disabled students did not meet commonality requirement where its members likely experienced alleged violations of federal and state law in different ways). The putative members of subclass A all experienced the alleged harm from the Sheriff's response to coronavirus in the same or similar ways, specifically their allegedly increased risk of exposure to the virus. In addition, all of them raise the same kind of claim, and their claims all involve a common question that would resolve a central issue of that claim.
The Court acknowledges that, in a case raising claims similar to the habeas corpus claims asserted in this one, another judge in this district recently took a different approach with regard to commonality. A putative representative class of convicted prisoners in Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660(N.D. Ill. Apr. 10, 2020), also sought habeas corpus relief and medical furloughs or home detentions under section 1983 based on an allegedly inadequate response to the coronavirus pandemic by the director of the Illinois Department of Corrections. Id. at *1–2. For the section 1983 claim, the court found the only common question "apt to drive the
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resolution of the litigation," id. at *15 (quoting Wal-Mart, 564 U.S. at 350), was "which class members should actually be given a furlough," id. That question did not satisfy the commonality requirement, the court found, because "individualized determinations" would be necessary to answer it. Id. The court also indicated that the habeas claim would not be "suitable for representative or class treatment" because "release determinations must be made on an individual basis regardless of the vehicle for considering and effectuating them." Id. at *21 n.15. The court did not clarify whether it based its finding that the habeas claim would be unsuitable for representative or class treatment on the commonality requirement or another Rule 23 consideration. See id.
This Court respects the court's decision in Money, which it cites as persuasive authority elsewhere in this opinion. But to the extent that the court in Money found that the putative classes failed to satisfy the commonality requirement because their requested relief would entail individualized determinations, this Court departs from the analysis in Money. As indicated, the commonality requirement does not mean that the relief ultimately awarded to each plaintiff must be the same. Thus whether the release determinations would need to be made on an individual basis does not factor into the Rule 23(a) commonality analysis.
The Court concludes, for the reasons stated above, that the putative class satisfies Rule 23(a)'s commonality requirement.
b. Typicality The Sheriff contends that the putative subclass does not meet Rule 23(a)'s typicality requirement. He does not explain why, and he is incorrect. The named plaintiffs' habeas corpus "claim is typical if it arises from the same event or practice or
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course of conduct that gives rise to the claims of other [subclass] members and is based on the same legal theory." Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018) (alteration omitted). "This requirement is meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large." Id. (internal quotation marks omitted). Typicality is satisfied for subclass A because the named plaintiffs have alleged the same injurious conduct stemming from the Sheriff's response to the coronavirus pandemic as the other members of the subclass and have advanced the same legal theory as the subclass at large.
c. Rule 23(b)(2) Rule 23(b)(2) is the sticking point for the habeas corpus plaintiffs' attempt to bring a representative action on behalf of subclass A. As indicated, Rule 23(b)(2) allows for class certification where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). It "applies only when a single injunction or declaratory judgment would provide relief to each member of the class," not "when each individual class member would be entitled to a different injunction." Wal-Mart, 564 U.S. at 360. The Sheriff contends that the putative subclass A does not satisfy Rule 23(b)(2) because the plaintiffs seek individualized relief. He suggests that any habeas corpus proceeding would need to account for each subclass member's individual circumstances, including, for example, the danger each detainee would pose to the public if released. The plaintiffs expressly concede that the relief would need to be at least partly individualized. They contend, however, that this could be achieved through
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"brief, individual proceedings" without defeating class certification. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 23; see also Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 16.
In actions where plaintiffs seek an injunction that "would merely initiate a process through which highly individualized determinations of liability and remedy are made," Rule 23(b)(2) is not satisfied. Jamie S., 668 F.3d at 499 (7th Cir. 2012) (injunction that established a system for identifying disabled children and implementing individualized education plans and remedies did not satisfy Rule 23(b)(2) because it "merely establishe[d] a system for eventually providing individualized relief"). Compare id. and Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 (7th Cir. 2011) (in case challenging insurer's performance of hail storm damage appraisals, injunction requiring class-wide roof reinspection did not satisfy Rule 23(b)(2) where it "would only initiate thousands of individualized proceedings to determine breach and damages") with Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chi., 797 F.3d 426, 441–42 (7th Cir. 2015) (proposed class was maintainable under Rule 23(b)(2) where plaintiffs asked the court for a declaration that a school board's policies violated Title VII and prospective relief including a moratorium on a challenged practice and the appointment of a monitor).
The plaintiffs concede that issuing writs of habeas corpus in this case would entail individualized proceedings but not that Rule 23(b)(2) precludes them from proceeding on a representative basis. They suggest that the type of supposedly brief, individualized proceedings they seek "have long been commonplace in class litigation." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 23. But the cases
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they cite to support that proposition are distinguishable from this one. Both Barnes v. District of Columbia, 278 F.R.D. 14 (D.D.C. 2011), and Dunn v. City of Chicago, 231 F.R.D. 367 (N.D. Ill. 2005), amended on reconsideration, No. 04 C 6804, 2005 WL 3299391 (N.D. Ill. Nov. 30, 2005), involved individualized proceedings on damages under Rule 23(b)(3), not individualized proceedings for injunctive relief under Rule 23(b)(2). See Barnes, 278 F.R.D. at 19–23; Dunn, 231 F.R.D. 367, at 375–78. Dunn also involved class members who had variations in how they experienced the constitutional violations—an issue the court properly discussed as part of the commonality analysis, not the Rule 23(b)(2) analysis. See id. at 372.
Even if the plaintiffs did not concede it, individualized proceedings would be required for writs of habeas corpus that the plaintiffs seek because the Prisoner Litigation Reform Act (PLRA) applies to their habeas corpus claims. Under the PLRA, in tailoring any prospective or preliminary injunctive relief "in any civil action with respect to prison conditions," a court must "give substantial weight to any adverse impact on public safety," among other considerations. 18 U.S.C. § 3626(a)(1)(A), (a)(2). The PLRA defines "civil action with respect to prison conditions" as "any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison." Id. § 3626(g)(2). Thus if the plaintiffs' habeas claims constitute civil actions as defined by the PLRA, the Court would need to give substantial weight to the public safety of granting writs, which would require consideration of, among other things, any danger each individual member of subclass A poses to the public.
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As the Court indicated in its TRO decision, the question of whether detained persons can even use a section 2241 petition to challenge the conditions of their confinement has divided courts. Mays, 2020 WL 1812381, at *6 (comparing, e.g., Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (a prisoner may challenge the conditions of his confinement in a federal habeas corpus petition) and Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (same) with Spencer v. Haynes, 774 F.3d 467, 469–70 (8th Cir. 2014) (section 2241 petitions may not challenge conditions)). The Seventh Circuit has expressed a "long-standing view that habeas corpus is not a permissible route for challenging prison conditions," at least when a prisoner's claim does not have "even an indirect effect on the duration of punishment." Robinson v. Sherrod, 631 F.3d 839, 840–41 (7th Cir. 2011). But the Seventh Circuit has also noted that "the Supreme Court [has] left the door open a crack for prisoners to use habeas corpus to challenge a condition of confinement." Id. at 840 (quoting Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005)) (citing Nelson v. Campbell, 541 U.S. 637, 644–46 (2004); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Preiser v. Rodriguez, 411 U.S. 475, 499–500 (1973)).
In the TRO decision, the Court said that it did not need to decide the question of whether the plaintiffs could challenge conditions of confinement in a habeas corpus proceeding definitively at the time but stated that were it "required to address this point, [the Court] would not consider it to be an absolute bar to plaintiffs' motion for a temporary restraining order." Mays, 2020 WL 1812381, at *6. The Court stated that "[t]he plaintiffs' claims, as they have framed them, do bear on the duration of their confinement (they contend, ultimately, that they cannot be held in the Jail consistent
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with the Constitution's requirements), and they are not the sort of claims that are, or can be, appropriately addressed via a claim for damages." Id.
But the plaintiffs' claims also bear on the conditions of their confinement: they challenge the constitutionality of the conditions in the Jail during the coronavirus pandemic, and they contend that the conditions are so deficient that it is unconstitutional for subclass A to be confined at the Jail. The Seventh Circuit has not expressly addressed whether the PLRA applies to habeas corpus petitions that involve conditions of confinement, but it has not foreclosed the application of the PLRA to such petitions. Cf. Walker v. O'Brien, 216 F.3d 626, 634 (7th Cir. 2000) (stating that actions "brought under section 2241 . . . as habeas corpus petitions are not subject to the PLRA"—but not addressing such petitions that challenge the conditions of confinement); see also Thomas v. Zatecky, 712 F.3d 1004, 1005 (7th Cir. 2013) (Walker holds, among other things, "that a collateral attack under § 2241 or § 2254 is not a 'civil action' for the purpose" of the PLRA (emphasis added)). By specifying that a "civil action with respect to prison conditions . . . does not include habeas corpus proceedings challenging the fact or duration of confinement in prison," the language of the PLRA appears suggests that it may cover other types of habeas corpus proceedings, including, potentially, those challenging the conditions of confinement. See Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017) (courts should interpret a statute in a way that would "give effect, if possible, to every clause and word"). And at least some courts addressing the issue have suggested that the PLRA applies to habeas corpus petitions involving the conditions of confinement. See Jones v. Smith, 720 F.3d 142, 145, 145 n.3 (2d Cir. 2013) (the PLRA does not apply to "habeas petition[s] seeking to overturn a
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criminal conviction or sentence" but presumably would apply to conditions-ofconfinement habeas claims brought under section 2241); Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir.) (habeas corpus petitions challenging conditions of confinement "would have to be subject to the PLRA's . . . rules, as they are precisely the sort of actions that the PLRA sought to address"), on reh'g, 159 F.3d 591 (D.C. Cir. 1998).
Accordingly, the Court concludes that the PLRA applies to the plaintiffs' habeas corpus claim. The PLRA's mandate that a court "give substantial weight to any adverse impact on public safety" before issuing preliminary injunctive or prospective relief thus would apply to the habeas corpus claim. See 18 U.S.C. § 3626(a)(1)(A), (a)(2). To do so, the Court would need to consider the circumstances of the detained persons and any threat they pose to public safety, which plainly would vary from one person to another. This is a process that would render the claim unsuitable to certification under Rule 23(b)(2) or its analogy for representative actions.
The plaintiffs also state, in two sentences found at the very end of a small-type, twenty-four-line footnote, that a release order would not require a court to resolve individualized questions regarding safety because such an order would give the Sheriff discretion on which detained persons to release. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21 n.16. The plaintiffs make this point with respect to commonality for their section 1983 claim, not on the question of whether the habeas corpus claim may be handled on a representative basis. They nowhere attempt to explain how the Court could condition the issuance of writs of habeas corpus on detainee-specific decisions made by the Sheriff. As this Court stated in its TRO decision, "[t]he issuance of [a] writ of habeas corpus through a section 2241 petition is a
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federal remedy (in other words, it does not depend on state law)." Mays, 2020 WL 1812381, at *7. Nor could the issuance of a writ depend on subsequent decisions by a detained person's custodian. The habeas corpus claim proceeds against the custodian based on the fundamental, long-standing rule that a person in custody "may be liberated if no sufficient reason is shown to the contrary." Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)). The only remedy available for a habeas corpus claim is liberation of the person in custody. See id. It is difficult to imagine a writ of habeas corpus that would tell a jailer to release the petitioner—unless he decides it would not be a good idea to do so. Plaintiffs offer no authority supporting the proposition that a writ of habeas corpus could appropriately be issued in this way.
In sum, though representative habeas corpus actions do not need to comply "precisely" with Rule 23, Morgan, 546 F.2d at 221 n.5, the plaintiffs cannot meet the requirements for representative treatment.7
Because the plaintiffs' habeas corpus claims founder on the exhaustion requirement, and because they have not established that the claims may be pursued on a representative basis, their representative action on behalf of subclass A has no likelihood of success on the merits. Accordingly, the plaintiffs' request for the Court to
7 The Court acknowledges that this is different from the conclusion it reached in the TRO decision, in which it conditionally certified subclass A. See Mays, 2020 WL 1812381, at *4. But that was, of course, a provisional decision. And even for a nonconditionally certified class, a court may alter or amend an order granting class certification at any point before final judgment. Fed. R. Civ. P. 23(c)(1)(C); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (class certification order is "inherently tentative," and a district court “remains free to modify it in the light of subsequent developments in the litigation").
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release medically vulnerable members of subclass A on unsecured or non-monetary bail conditions pending review of their habeas corpus claims is moot. B. Section 1983 claim
The Court next addresses the question of likelihood of success on the plaintiffs' section 1983 claim, dealing with conditional class certification first, followed by the merits. The Court then addresses certain provisions of the PLRA as applied to the section 1983 claim.
1. Conditional class certification For their section 1983 claim, the plaintiffs seek class-wide relief in the form of a preliminary injunction. But because the plaintiffs only recently filed the lawsuit, there has not yet been a class certification ruling. As the Court indicated in its TRO opinion, "[t]his does not foreclose the possibility of relief for the plaintiffs at this stage, because a district court has general equity powers allowing it to grant temporary or preliminary injunctive relief to a conditional class." Mays, 2020 WL 1812381, at *3 (citing Lee v. Orr, No. 13 C 8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013); Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 2020); Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012); Howe v. Varity Corp., 896 F.2d 1107, 1112 (8th Cir. 1990)). "Furthermore, Federal Rule of Civil Procedure 23(b)(2) 'does not restrict class certification to instances when final injunctive relief issues' and permits certification of a conditional class for the purpose of granting preliminary injunctive relief." Id. (quoting Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)). As indicated, to bring a class action a plaintiff must show that the proposed class meets the four requirements of Rule 23(a): "numerosity, commonality, typicality, and
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adequate representation." Wal-Mart, 564 U.S. at 349. In addition, "the proposed class must satisfy at least one of the three requirements listed in Rule 23(b)." Wal-Mart, 564 U.S. at 345. The plaintiffs rely on Rule 23(b)(2).
As an initial matter, the Court must clarify the scope of the class or subclasses for which the plaintiffs have sought certification. They assert count 1 under section 1983 on behalf of all putative members of a class consisting of "all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic." Compl. (dkt. no. 1) ¶ 60. In their reply brief in support of their motion for a preliminary injunction, however, the plaintiffs indicate that they also request injunctive relief for claims under section 1983 specifically for the putative members of proposed subclass B, which consists of "all people who are currently housed on a tier where someone has already tested positive for the coronavirus," id. ¶ 62. See, e.g., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 29 (requesting the transfer of members of putative subclass B). Accordingly, the Court takes this as meaning that, with respect the section 1983 claim, the plaintiffs seek injunctive relief on behalf of both the overall class and subclass B.
The parties dispute whether the class and subclass B satisfy each requirement of Rule 23, except for numerosity. The Court's analysis earlier in this opinion finding that subclass A (the subclass seeking habeas relief) satisfies the typicality and commonality requirements apply to the overall class and subclass B as well. Specifically, the class and subclass B satisfy the commonality requirement because their members "have suffered the same injury" and their claims "depend upon a common contention" for which class action proceedings will "generate common answers apt to drive the
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resolution of the litigation." Wal-Mart, 564 U.S. at 350 (emphasis omitted). As with subclass A, the claims members of the class and subclass B raise at least one common question that satisfies Rule 23(a)'s commonality requirement: whether coronavirus presents so severe a risk of harm to those in the Sheriff's custody that their conditions of confinement are unconstitutional. For the reasons previously discussed, Rule 23(a)'s commonality requirement does not involve whether each member of the class would be entitled to identical relief.
The Class and subclass B also satisfy Rule 23(a)'s typicality requirement. Each member's section 1983 claim arises from the Sheriff's response to the coronavirus pandemic—"the same event or practice or course of conduct"—and "is based on the same legal theory." See Lacy, 897 F.3d at 866 (alteration omitted).
The Court's analysis under Rule 23(b)(2), however, differs from its analysis regarding the habeas corpus claim. Again, Rule 23(b)(2) allows for class certification where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). It "applies only when a single injunction or declaratory judgment would provide relief to each member of the class," not "when each individual class member would be entitled to a different injunction." Wal-Mart, 564 U.S. at 360.
A good deal of the injunctive relief that the plaintiffs seek would provide relief to the entire class via a single order. Specifically, on behalf of the overall class, the plaintiffs request a single order mandating social distancing and/or extending the TRO or converting it to a preliminary injunction, which would provide the same relief to each
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class member. Accordingly, the class satisfies the requirements of Rule 23(b) to the extent the plaintiffs request relief under section 1983 mandating social distancing and/or extending the TRO or converting it into a preliminary injunction.
The plaintiffs' requests for prisoner transfers and/or releases on behalf of subclass B, however, likely would entail individual determinations to some degree. The parties do not dispute that the PLRA applies to the plaintiffs' section 1983 claim or that the 1983 claim involves prison conditions. As discussed earlier with regard to the habeas corpus claim, before granting prospective or preliminary injunctive relief on the section 1983 claim, the PLRA requires the Court to "give substantial weight to any adverse impact on public safety," in addition to making other findings. 18 U.S.C. § 3626(a)(1)(A), (a)(2). As indicated, the Sheriff contends that these individual determinations prevent certification under 23(b)(2). As the Court has discussed, the plaintiffs contend (albeit only in a footnote) that a court would not be required to make those individual determinations because a court could grant a single injunction while delegating those questions to the Sheriff. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21 n.16; see also Brown, 563 U.S. at 537–38 (three-judge court adequately considered "public safety by leaving" decision "of how best to comply with its population limit to state prison officials"). The Court recognizes that analysis of whether the Sheriff may exercise discretion in carrying out a transfer or release order may be different for the section 1983 claim. Among other differences, a petition for habeas corpus contemplates a singular form of relief with regard to habeas—release from custody—whereas a court has a broader spectrum of possible relief under section 1983. See Rumsfeld, 542 U.S. at 435; Preiser, 411 U.S. at 484–86, 489. The range of
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injunctive relief available under section 1983 may allow courts to "leave details of implementation to [a] State's discretion by leaving sensitive policy decisions to responsible and competent policy state officials." See, e.g., Brown, 563 U.S. at 538. The Court need not decide that issue now, however, because, as it will explain later in this opinion, at this point it concludes that the predicate under the PLRA for convening a three-judge court or ordering prisoner transfers has not been established.
In sum, the Court conditionally certifies the class to the extent the plaintiffs request relief under section 1983 requiring social distancing and/or extending the TRO or converting it to a preliminary injunction. The Court declines to decide whether subclass B satisfies the requirements of Rule 23(b) because it is not necessary to do so at this time.
2. Likelihood of success on the merits The injunctive relief requests remaining for determination are the class's requests to require social distancing throughout the Jail and (it appears) advance identification and further screening of detained persons with conditions that make them more vulnerable to severe health consequences from coronavirus disease, as well as their request to convert the TRO to a preliminary injunction. (The Court addresses in later sections the plaintiffs' request to require the Sheriff to transfer detainees out of the Jail and to convene a three-judge panel.) The claims of the class arise under the Due Process Clause of the Fourteenth Amendment. "When a state actor [ ] deprives a person of his ability to care for himself by . . . detaining him . . . , it assumes an obligation to provide some minimum level of well-being and safety." Johnson v. Rimmer, 936 F.3d 695, 706 (7th Cir. 2019) (quoting
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Case: 1:20-cv-02134 Document #: 73 Filed: 04/27/20 Page 53 of 87 PageID #:1986
Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir. 1998)). The Due Process Clause requires a jailer to provide a pretrial detainee with food, shelter, and basic necessities, including reasonably adequate sanitation, ventilation, bedding, hygienic materials, and utilities, Hardeman v. Curran, 933 F.3d 816, 820 (7th Cir. 2019), and to "meet[ ] the person's medical needs while he is in custody," Johnson, 936 F.3d at 706. More broadly, the Due Process Clause protects pretrial detainees, who "have not been convicted of anything," Miranda v. County of Lake, 900 F.3d 335, 350 (7th Cir. 2018), from conditions that "amount[ ] to punishment." Kingsley v. Hendrickson, 135 S. Ct. 2466, 247 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)); Hardeman, 933 F.3d at 823.
Here there is no question that the plaintiffs' claims involve conditions that are sufficiently serious to invoke the Fourteenth Amendment; the Sheriff does not argue otherwise. A pretrial detainee may establish a Fourteenth Amendment violation based on a condition, or combination of conditions, posing an "unreasonable risk of serious damage to [his] future health." Henderson v. Sheahan, 196 F.3d 839, 847 (7th Cir. 1999) (decided under Eighth Amendment "deliberate indifference" standard). See Helling v. McKinney, 509 U.S. 25, 33, 35 (1993) (Eighth Amendment case; "exposure of inmates to a serious, communicable disease" that poses a risk of future harm is a deprivation sufficiently serious to invoke constitutional protections). This is precisely where persons detained in the Jail find themselves. The coronavirus is indisputably present in the Jail. And the persons detained there are housed in settings that facilitate its transmission. This is true throughout the Jail, given the close proximity in which even single-celled detained persons are housed and the fact that they occupy common areas
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like bathrooms, showers, and dayrooms where other inmates congregate or have been present. And it is particularly true for detained persons who are doubled celled and those who are still housed in the dormitory units, where dozens (or more) spend twentyfour hours per day, or close to it, in the same room. It is equally undisputed that persons are detained in these settings with the knowledge of the Sheriff and his personnel, who have assigned them to live in these quarters while aware of the risks of virus transmission. All of this, taken together, is sufficient for the plaintiffs to have well more than a "better than negligible chance," see Whitaker, 858 F.3d at 1046, of establishing the threshold requirement of their due process claim—conduct that the Sheriff knows puts detainees at a significant risk of serious harm from coronavirus. See Kingsley, 135 S. Ct. at 2472; Miranda, 900 F.3d at 353. Meeting this threshold requirement of the due process standard does not require an intent to cause harm; it requires only knowledge of "the physical consequences" of one's conduct. Kingsley, 135 S. Ct. at 2472.
The primary dispute before the Court, and the point on which the Sheriff focuses his defense, involves the second requirement of a due process claim. To succeed on their claim, the plaintiffs must show that the Sheriff's conduct in addressing the risks posed by exposure to coronavirus is objectively unreasonable in one or more respects. See, e.g., McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). At the preliminary injunction stage, however, the plaintiffs are not required to prove this definitively; they are required only to establish a reasonable likelihood that they will ultimately succeed in proving it.
The plaintiffs concede that the Sheriff and others have taken significant steps to
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reduce the Jail's population and to decrease the number of persons housed in groups or double celled. They argue, however, that the Sheriff's actions do not go far enough and that detained persons continue to be unreasonably exposed to a risk of serious harm. The plaintiffs contend that social distancing is not being enforced even in units where detained persons are single celled, given joint usage of showers, toilet facilities, and dayrooms. And, they say, social distancing is not even a possibility for the hundreds who are double celled or remain in dormitory units. The plaintiffs also contend that despite policies promulgated by the Sheriff, proper sanitation—in particular, frequent cleaning of surfaces and facilities used in common, distribution of cleaning materials to detainees, and so on—is not actually being carried out on the ground. Finally, the plaintiffs contend—and it is undisputed—that nothing has been done by the Sheriff to enable him to identify, in advance, detained persons with medical or other conditions that make them particularly vulnerable to serious illness should they contract the coronavirus.
The Sheriff argues that he and others have taken significant steps to reduce the risk to detained persons from coronavirus. One critical aspect of this is a very significant reduction in the overall population of the Jail, accomplished by bond reductions issued by judges and by expansion, to its limits, of the Sheriff's electronic home monitoring program. In addition, in recent weeks, there have been far fewer new detainees admitted on a daily basis than has been the case historically, presumably due to fewer arrests. At the same time, the Sheriff has taken steps to increase capacity, including by reopening previously shuttered buildings and parts of buildings within the Jail complex. Together, these actions have enabled the Sheriff to take further steps to
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separate persons who remain detained in the Jail. Specifically, a far greater percentage of detainees are now in cells by themselves. And far fewer are housed in the dormitory units than before, with many having been transferred to single-cell units. In addition, at the Sheriff's direction, detainees have been provided guidance regarding social distancing. The Sheriff has also instituted policies to enhance sanitation practices and to carry out these policies. He has also implemented the distribution of facemasks to certain detained persons—in particular, those who are in quarantine—consistent with the availability of supplies, and he has undertaken efforts to acquire more. (Some of this has taken place as a result of the TRO entered on April 9.)
It cannot reasonably be disputed that the Sheriff has undertaken a significant, and impressive, effort to safeguard detained persons in his custody from infection by coronavirus. And based on the record, including the testimony of Executive Director Miller at the April 23 hearing, the Court is satisfied that the Sheriff and his staff have acted in good faith, with the goal of protecting the people placed in his custody, consistent with his obligation to maintain security.
Were this an Eighth Amendment case involving convicted prisoners, the efforts the Court has just described likely would be the end of the story. To prevail in a case involving a convicted prisoner, a plaintiff is required to show that the prison official was deliberately indifferent to the risk of harm to the plaintiff—in other words, the official knew about but disregarded that risk. See, e.g., Orr v. Shicker, 953 F.3d 490, 499 (7th Cir. 2020); Garcia v. Armor Corr. Health Serv., Inc., 788 F. App'x 393, 395 (7th Cir. 2019). Were the plaintiffs in this case required to make that showing, they would be unable to prevail; the Sheriff has been anything but deliberately indifferent to the risk of
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harm to pretrial detainees from coronavirus. But because this is a case involving persons detained prior to an adjudication of
their guilt or innocence, the Sheriff's good intentions are not dispositive of the plaintiffs' claims. There is a critical difference between a claim regarding conditions of confinement brought by pretrial detainees like the plaintiffs and one brought by a convicted prisoner under the Eighth Amendment, who unlike a pretrial detainee can constitutionally be subjected to punishment. See Hardeman, 933 F.3d at 824 (Eighth Amendment standard is "more demanding"). The standard by which a court evaluates a claim by a pretrial detainee like the plaintiffs "is solely an objective one." Kingsley, 135 S. Ct. at 2473. The plaintiffs are not required to show that the Sheriff had an intent to punish or to harm them, id.; indeed, they need not show any sort of malicious or bad intent at all. Rather, what they are required to show—actually, on a preliminary injunction, simply establish a reasonable likelihood of showing—is that the Sheriff's conduct with respect to the particular condition has been objectively unreasonable in one or more respects. See McCann, 909 F.3d at 886. In applying this standard, a court "focus[es] on the totality of facts and circumstances" the defendant faced "to gauge objectively—without regard to any subjective belief held by the [defendant]—whether the response [to the conditions] was reasonable." Id.
The plaintiffs contend that the Sheriff's response to the coronavirus outbreak at the Jail has not been objectively reasonable or sufficiently protective of the people in his custody, at least with respect to the issues currently before the Court—social distancing, sanitation, and identification and monitoring of highly vulnerable detainees. In evaluating the plaintiffs' contentions, the Court assesses objective reasonableness
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"from the perspective of 'a reasonable [official] on the scene,' based on what the [official] knew at the time." Mays, 2020 WL 1812381, at *9 (quoting Kingsley, 135 S. Ct. at 2473). The question, in the present context, is whether the Sheriff "acted reasonably to mitigate the risks to [the] health and safety of detainees." Id. (citing Hardeman, 933 F.3d at 825; Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)). And in determining the reasonableness of the Sheriff's actions, the Court "must account for his legitimate interest in managing the Jail facilities," and it must "defer to policies and practices that 'are needed to preserve internal order and discipline and to maintain institutional security.'" Id. (quoting Kingsley, 135 S. Ct. at 2473); see Bell, 441 U.S. at 547.
The fact of the matter is that the Sheriff's actions have not eliminated the risk to detained persons; far from it. But this, too, is not dispositive. Although a jailer must make a reasonable effort to abate conditions that pose an excessive risk to the health or safety of the people in his custody, the fact that he fails to prevent actual harm does not mean that his response was unreasonable. See Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (applying Eighth Amendment deliberate indifference standard). More specifically, the Constitution does not require a detention facility to provide "foolproof protection from infection" by a communicable disease. Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (applying Eighth Amendment standard); see also Smith v. Sangamon Cty. Sheriff's Dep't, 715 F.3d 188, 191 (7th Cir. 2013) (applying Eighth Amendment standard; "Prison and jail officials are not required to guarantee [a] detainee's safety." (internal quotation marks omitted)). That said, the ongoing risk to detained persons at the Jail, confirmed by increases in the number who have tested positive for coronavirus and the death of six detained persons from coronavirus disease
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as of April 23, is the backdrop against which the Court must view the Sheriff's conduct. The Court begins with the question of social distancing. As the plaintiffs see it, a
policy that fails to fully implement social distancing throughout the Jail—which indisputably has not happened—cannot possibly be considered an objectively reasonable response to the coronavirus outbreak there. At least until full social distancing is enforced, the plaintiffs contend, detained persons face an unacceptably high risk of death or serious harm to their health.
The Sheriff's position is likewise simple and straightforward. His implementation of a coronavirus response plan at the Jail complies, he says, with the CDC Guidelines, and for this reason his actions have been objectively reasonable. The Guidelines, he points out, do not require social distancing in correctional facilities where it is not feasible given physical space, population, and staffing.8 The plaintiffs respond that the CDC Guidelines are not a surrogate for constitutional due process requirements.
To support his position that compliance with the CDC Guidelines should effectively be dispositive, the Sheriff cites Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001). There the Seventh Circuit held that a convicted prisoner could not show that prison officials had been deliberately indifferent to his lack of access to safe drinking water, because radium concentrations in the prison's drinking water were at a level that the U.S. Environmental Protection Agency deemed at the time to be safe. Id. at 472– 73. The court noted that because prisoners are not entitled to better quality of air,
8 Largely based on this aspect of the CDC Guidelines, the Court, in deciding the TRO motion, declined to require the Sheriff to enforce social distancing other than during the intake process, one very obvious point at which social distancing was not taking place. The TRO ruling, however, is neither final nor binding. The Court has reassessed the matter with the benefit of more thorough briefing and a more complete record.
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water, or environment than the general public, prisons do not have "a duty to take remedial measures against pollution or other contamination that the agencies responsible for the control of these hazards do not think require remedial measures." Id.
The Sheriff's reliance on Carroll is unavailing. First of all, the plaintiffs do not suggest any entitlement on the part of pretrial detainees to conditions that exceed health and safety standards applicable to the general public. But that aside, the CDC Guidelines, unlike the EPA standards relied upon in Carroll, do not say or suggest that compliance makes detained people safe. This is particularly so in view of the fact that the Guidelines include feasibility qualifiers, particularly in relation to social distancing. See CDC Guidelines at 1, 3, 4, 11. Given this limitation, the Guidelines are not the same as a safety standard set by a regulatory agency.
For their part, the plaintiffs suggest that the CDC Guidelines "shed no light" on whether the Sheriff's conduct has been objectively reasonable, in conformity with constitutional requirements. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 10 (quoting Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 1996)). The Court disagrees with this as well. The plaintiffs rely to a significant extent on Thompson. There the court, considering a claim of excessive force against a police officer—a claim also determined by a standard of objective reasonableness—stated that a policy on the use of force established by the police department was "completely immaterial [on] the question of whether a violation of the federal constitution has been established." Id. at 454. But later, in United States v. Brown, 871 F.3d 532 (7th Cir. 2017), the Seventh Circuit clarified that Thompson simply means that a police
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department's own policies do not establish the standard of what is reasonable for purposes of the Constitution. See id. at 537 ("Despite its strong language, Thompson should not be understood as establishing a rule that evidence of police policy or procedure will never be relevant to the objective-reasonableness inquiry."). The court explained in Brown that, in the fact-intensive objective reasonableness analysis, evidence of national or widely used police policies could be relevant to helping a factfinder understand how a reasonable officer might have behaved under the circumstances that faced the defendant. Id. at 538. The court noted that the relevance of such policy evidence may turn on the "factual complexity" of the circumstances facing the defendant, and it may be less relevant in circumstances in which a factfinder can rely on common sense to determine the reasonableness of conduct. See id.
Here—unlike, perhaps, a relatively simple excessive force claim against an arresting officer—the circumstances facing the Sheriff in operating the Jail are quite complex. In these circumstances, guidance from an expert body like the CDC is beneficial in assessing the objective reasonableness of the Sheriff's conduct in the face of an ongoing outbreak. Indeed, in Forbes, the Seventh Circuit concluded that a prison's response to a case of active tuberculosis in its facility had been objectively reasonable in part because it had implemented and effected the recommendations of the CDC. Forbes, 112 F.3d at 267.
In sum, the CDC Guidelines are an important piece of evidence to consider in assessing the Sheriff's conduct, but they cannot be appropriately viewed as dispositive standing alone. Indeed, the CDC's recommendations on tuberculosis were not dispositive in Forbes; the court also considered other facts—noting, for example, that
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the prison had only one case of active tuberculosis, "a far cry" from an outbreak. Id. As the Court has indicated, one reason why the CDC Guidelines are not appropriately viewed as dispositive of the plaintiffs' due process claims is the way in which they account for feasibility. Although feasibility may be a consideration in determining objective reasonableness, see Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010) (decided under deliberate indifference standard), no case of which the Court is aware sets it as a dispositive factor. That, however, is exactly what the CDC Guidelines do, at least if read as the Sheriff suggests: they set a feasibility or practicality limitation on social distancing practices that they also call "a cornerstone of reducing transmission of respiratory diseases such as COVID-19." CDC Guidelines at 4. One can certainly understand why the CDC, a public health body, has acknowledged these sorts of limits upon its ability to prescribe guidelines for managing jails. But from a constitutional-law standpoint, it is difficult to believe that "do what you can, but if you can't, so be it"9 satisfies a jailer's constitutional obligation to take objectively reasonable steps to mitigate known risks to the life and health of people in his custody who are detained awaiting determination of their guilt or innocence.
Currently the Sheriff is housing hundreds of detained persons under conditions that make social distancing completely impossible or nearly so, or at least very difficult. Those for whom it is completely impossible are the detainees who are double celled. Those for whom it is at least very difficult and likely impossible are detainees who are housed in dormitory units that are not operating at a greatly reduced capacity.
9 The Court does not intend by this to suggest that this is the attitude of the Sheriff, the Executive Director, or their staff. Here the Court is characterizing a legal argument, not any person's behavior.
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Specifically, a significant number of the existing dormitory units are operating at or greater than fifty percent capacity. Based on the record before the Court, social distancing is practically impossible in such units, and this cannot be completely attributed to detainee conduct or misconduct: if people are kept in groups in relatively close quarters, it is entirely predictable that they will have difficulty maintaining separation.
At the current stage of the pandemic, group housing and double celling subject detainees to a heightened, and potentially unreasonable and therefore constitutionally unacceptable, risk of contracting and transmitting the coronavirus. Such arrangements make it impossible or unduly difficult to maintain social distancing, a "cornerstone" of the reduction of coronavirus transmission among detainees. The Court, however, must account for and give deference to the Sheriff's interest in managing the Jail facilities and to practices that are needed to preserve order and discipline and maintain security. See Kingsley, 135 S. Ct. at 2473; Bell, 441 U.S. at 547. These include documented considerations that make group or double celling appropriate or necessary. Feasibility limitations imposed by existing or otherwise available physical facilities are also taken into account, though this is not and cannot be a controlling factor. In this regard, it is worth noting that despite general statements by both sides to the contrary, it does not appear, based on the evidence, that the Sheriff has yet hit the feasibility limit on getting detainees out of group housing, even if one considers only the Jail complex itself. See Apr. 23, 2020 Hearing Tr. at 57:2–19 (testimony by Executive Director Miller referencing the possibility of further moves of detained persons out of dormitories).
Based on the evidence submitted, the Court finds that the plaintiffs are
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reasonably likely to succeed on their contention that group housing or double celling of detained persons is objectively unreasonable given the immediate and significant risk to their life and health from transmission of coronavirus, except in the following situations:
• Persons detained in tiers or dormitories currently under quarantine following a positive test for the coronavirus within the tier or dormitory, as this makes it inadvisable to transfer them to other housing arrangements until the quarantine period has expired (what the Sheriff refers to as "quarantine tiers").
• Detained persons who have tested positive for the coronavirus and are under medical observation (what the Sheriff refers to as "isolation tiers"), a housing arrangement that the CDC Guidelines specifically authorize.
• Detained persons who have tested positive for coronavirus and are recovering (what the Sheriff refers to as "convalescent tiers"), which the CDC Guidelines likewise authorize.
• Double-celled or dormitory-housed detainees for whom there is a documented determination by a medical or mental health professional that single-celling poses a risk of suicide or self-harm.
• Persons detained housed in a dormitory unit that is at less than fifty percent capacity, which the record reflects will permit adequate social distancing.
• Detained persons committed, at the documented direction of a medical or mental health professional, to a group housing unit that is equipped for medical or mental health treatment, if but only if there is not available space in an appropriate housing or medical unit that permits full social distancing.
Detained persons housed in any of the listed "acceptable" arrangements will, however,
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need facemasks that are replaced at appropriate intervals and must be provided with instruction on how to use a facemask and the reasons for its use. They also must be instructed, at regular intervals, on the importance of social distancing.
The Court has omitted from the list above two categories of detained persons referenced in Executive Director Miller's affidavits and testimony: persons put into group housing or double celled because of conduct issues (including those who Miller referred to during his testimony as "our disorderly . . . population," Apr. 23, 2020 Tr. at 52:6) or for reasons associated with the PREA. On the record as it currently stands, the plaintiffs have a reasonable likelihood of succeeding on a contention that it is objectively unreasonable to effectively preclude social distancing for such persons. With regard to PREA detainees, the proposition that they cannot be single celled is counterintuitive, to say the least.10 And with regard to individuals with conduct issues, without more the Court cannot say that there is an objectively reasonable basis to hold them in a setting that does not permit adequate social distancing. With regard to detained persons in these categories, the Court is willing to entertain a properly-supported request by the Sheriff to include them in the category of persons who may be appropriately detained in group housing, perhaps with appropriate distancing.
Beyond what the Court has described, the plaintiffs have not established a reasonable likelihood of success on their due process claims. Specifically, the Court is not prepared to say that it is constitutionally inappropriate, in light of the coronavirus pandemic, to detain persons in the Jail in any form of group housing or to detain them in
10 This is so whether these persons are alleged perpetrators or likely victims, which is not clear from the record.
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single cells given the likelihood of multiple uses of common facilities and areas. This would be tantamount to saying that, in the present circumstances, the Constitution prohibits detaining people in jails. The plaintiffs have not established, and are not likely to be able to establish, that this is so.
Next, the Court addresses the plaintiffs' contentions regarding advance identification of detained persons who are especially vulnerable to severe illness or death if they contract the coronavirus. The Court remains unpersuaded that the plaintiffs have a reasonable likelihood of showing that this is objectively unreasonable and thus violative of those class members' constitutional rights. The plaintiffs' experts opined that screening is important so that vulnerable individuals can be monitored for symptoms. Miller explained, however, that any person with symptoms consistent with coronavirus disease is already provided immediate screening and treatment, and medical professionals treating such a person will have immediate access to his or her medical records (which include an inventory of medical conditions reported by the detained person upon intake or thereafter). Though, as the Court stated in its TRO decision, advance identification of persons with heightened vulnerability would appear to be a good practice and perhaps a best practice, the plaintiffs have not shown that failing to do so is, under the circumstances, objectively unreasonable.
Finally, the Court addresses the plaintiffs' request for extension of the TRO. The TRO required the Sheriff to establish and implement a policy regarding coronavirus testing; provide cleaning supplies to detainees and staff and soap and/or hand sanitizer to detained persons; establish and implement a policy regarding sanitization of frequently touched surfaces; and provide facemasks to all detained persons who are
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quarantined. Mays, 2020 WL 1812381, at *14–15. The plaintiffs ask the Court to convert these requirements into a preliminary injunction. The Sheriff argues that the Court need not extend or convert the TRO because he has complied with it and continues to do so.
A court "retains the power to grant injunctive relief" even after the defendant ceases the allegedly unlawful conduct. Milwaukee Police Ass'n v. Jones, 192 F.3d 742, 748 (7th Cir. 1999); see also United Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 563 F.3d 257, 275 (7th Cir. 2009). The moving party must show that such relief still is required. Milwaukee Police Ass'n, 192 F.3d at 748. "The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." Id. (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)); see also United Air Lines, Inc., 563 F.3d at 275 ("The court may consider how easily former practices might be resumed at any time in determining the appropriateness of injunctive relief."). Where the cessation of an allegedly wrongful activity occurred "only after a lawsuit has been filed," a district court is "within its discretion" to find that the cessation was "not voluntary, and that even a voluntary cessation is not determinative." Id.
Although the Sheriff appears to have complied with the TRO, the Court cannot say that the constitutional violations the Court sought to address will not recur absent an extension of the TRO's requirements. The Sheriff's actions to develop policies on sanitation and coronavirus testing, distribute soap and cleaning supplies, and distribute facemasks to detained persons who are quarantined—at least those done after the April 9 TRO—cannot be said to have been undertaken entirely voluntarily. Rather, they were
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done in response to the TRO, and there is at least some evidence of problems in carrying out the TRO's directives. In addition, without a court order, there is at least a possibility that these important measures could slip to the wayside, despite the Sheriff's best intentions, as he works to manage the complexities of the Jail during this public health crisis. For these reasons, the Court concludes that it is appropriate to convert the TRO to a preliminary injunction.
3. Transfer The plaintiffs next request the transfer of members of subclass B out of the Jail "to another safe location in the Sheriff's custody." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 2. Until recently, they primarily suggested that such a location could include "home confinement or electronic home monitoring." Pls.' Resp. to April 3, 2020 Ord. (dkt. no. 26-1) at 17; see also Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 16–17 (requesting transfer without specifying the location to which detained people should be transferred). But in their most recent reply brief, they suggest that this also could include transfer to "another correctional space, a hospital or medical facility, a clinic, [or] administrative furlough." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 29. The Sheriff contends that, under the PLRA, only a three-judge court may order such transfers and that, regardless, he lacks the authority to transfer detainees to electronic home monitoring. The Court starts with the threshold issue: whether this Court may, on its own, order the transfer of detained persons as proposed by the plaintiffs. As indicated, under the PLRA, "[i]n any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge
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court." 18 U.S.C.§ 3626(a)(3)(B). The PLRA defines "prisoner release order" as "any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison." 18 U.S.C. § 3626(g)(4). It defines "prison" as "any Federal, State, or local facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law." Id. § 3626(g)(5). This definition plainly includes the Jail.
The plaintiffs contend that the transfer of detained persons that they seek would not be a prisoner release order because it would simply involve moving them from one place under the Sheriff's control to another place under his control. That misses the mark. Transfers to home confinement, administrative furlough, or electronic home monitoring in particular—which, at least up until they filed their reply brief, are the primary forms of transfer the plaintiffs have requested—would constitute prisoner release orders because they would have "the purpose or effect of reducing [the] population" of the Jail. Id. § 3626(g)(4); Money, 2020 WL 1820660, at *12 (transfers of prisoners to temporary medical furlough or home detention within the state's custody would constitute prisoner release orders because "the PLRA does not focus on custodial status under state law, nor does it say anything about whether the reduction of population is temporary or permanent."). Population reduction is the "whole point" of the transfers the plaintiffs seek—they propose to prevent or curb the spread of coronavirus to detained persons, and in particular those who are vulnerable, by reducing the Jail's population. See id. at *13.
The transfers sought by the plaintiffs would constitute prisoner release orders for
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an additional reason: they would direct the release of detained persons out of the Jail. See 18 U.S.C. § 3626(g)(4). The plaintiffs contend that, for people confined at home at the direction of a state authority, a home may amount to a prison within the meaning of the PLRA. To be sure, the list of institutions that qualify as prisons under the PLRA is not limited to those specified in the statute. Witzke v. Femal, 376 F.3d 744, 753 (7th Cir. 2004) (confinement in a drug rehabilitation halfway house qualified as confinement in a correctional facility under the PLRA). But, as defined by the PLRA, a prison is a facility. Id. § 3626(g)(5). The common definition of a facility is "a building or establishment that [provides a service or feature of a specified kind]."11 That does not appear to cover a person's home; a home, even one in which a person is residing subject to a court or law enforcement authority's order, is not a place that provides specified services or features.12 It is hard to see the PLRA's definition of "prison" stretching that far. In addition, even if home confinement and/or electronic home monitoring constitutes imprisonment under state law (an issue the Court need not decide), an order mandating the transfer of prisoners out of the Jail to confinement in their homes likely would constitute a prisoner release order because it would "direct[] the release [of prisoners] from . . . a prison" to another place of confinement, 18 U.S.C. § 3626(g)(4).
The plaintiffs, however, appear to take the position even if prisoner transfers
11 Facility, Oxford English Dictionary Online, https://www.oed.com/view/Entry/67465?redirectedFrom=facility& (last visited April 26, 2020). 12 Home, Oxford English Dictionary Online, https://www.oed.com/view/Entry/87869?rskey=8yYRsS&result=1&isAdvanced=false (last visited April 26, 2020).
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have the effect of reducing the prison population, a single-judge court may order them where the basis for the order is not crowding or overcrowding. They may be correct. One of the PLRA's requirements for the entry of a prisoner release order by a threejudge panel is that "crowding is the primary cause of the violation of a Federal right." 18 U.S.C. § 3626(a)(3)(E)(i). Some courts have concluded that single-judge courts can order the transfers of prisoners, at least to other facilities, where the purpose of the transfer involves the prisoners' medical needs or vulnerabilities. See Plata v. Brown, No. C01-1351 TEH, 2013 WL 12436093, at *9–10, 15 (N.D. Cal. June 24, 2013) (ordering the transfer to other institutions of certain medically high-risk categories of prisoners out of two prisons where they were at risk of contracting Valley Fever, a disease not spread through human-to-human contact); Reaves v. Dep't of Correction, 404 F. Supp. 3d 520, 523–24 (D. Mass. 2019) (denying a stay pending appeal and explaining why the PLRA permitted the court to order the transfer of a quadriplegic prisoner to a medical facility equipped to care for him in Reaves v. Dep't of Correction, 392 F. Supp. 3d 195 (D. Mass. 2019), appeal docketed, No. 19-2089 (1st Cir. Nov. 4, 2019)); see also Money, 2020 WL 1820660, at *12 n.11 (suggesting that a single-judge courts can order prisoner transfers for reasons other than crowding). This conclusion seems correct: because three-judge courts can order prisoner releases only where crowding is the primary cause of the violation of a federal right, 18 U.S.C. § 3626(a)(3)(E)(i), to ensure the vindication of people in custody's constitutional rights, the PLRA must be read to permit courts to order transfers where some other condition causes the violation of a constitutional right. See Plata, 2013 WL 12436093, at *9–10.
But a single judge's ability to order a prisoner transfer for reasons other than
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crowding makes no difference in this case: the primary basis for the transfers the plaintiffs request is to reduce crowding in the Jail. See Money, 2020 WL 1820660, at *13 (plaintiffs' suggestion that they did not seek a remedy for overcrowding "contradict[ed] the allegations of their complaint and their entire theory of the case"). To put it in simple terms, one of plaintiffs' core contentions is that their constitutional rights are being violated because social distancing, which they contend is crucial to protect their health, has not been or cannot be accomplished at the Jail. Social distancing is essentially the converse of overcrowding. Thus it is apparent that the plaintiffs' request for prisoner transfers or releases is based on overcrowding.
To be more specific, one of the central allegations in the complaint is that the crowded conditions in the Jail "ensure the continued[,] rapid, uncontrolled spread of COVID-19 within the Jail and beyond—because the Jail is not and cannot be isolated from the larger community" and "because the Jail is a crowded, congregate environment." Compl. (dkt. no. 1) ¶ 2; see also, e.g., id. at ¶¶ 20, 25–26, 30–35, 37–41, 46, 51. The plaintiffs hinge their legal arguments on the contention that "without a reduction of the Jail's population, the lives and safety of the persons confined there cannot be reasonably protected" because "social distancing is not possible with the current jail population." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 1; see also, e.g., Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 1 ("The virus is spreading rapidly in the jail . . ., and that is not surprising: People are sleeping within three feet of each other, eating and using showers in close proximity to each other, and touching the same surfaces."). They contend that the imperative of social distancing is an undisputed "medical necessity" and that "[a]ll of the evidence in this record supports
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that proposition." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 3. As indicated, they cite evidence from a range of sources—including the CDC, the governor of Illinois, the City of Chicago, and medical and epidemiological experts— reflecting that social distancing is among the most effective and important interventions to reduce the spread of coronavirus and protect public health right now. Id. at 3–5; see also, e.g., Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 4–8. And, crucially, they contend that social distancing at the jail is impossible because of its current population levels. Id. at 10 ("[I]f the current population of a jail unavoidably creates intolerable risk to life and health then the current population must change."); see also id. at 10–13; Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 6–8. In short, the plaintiffs are requesting transfers because social distancing is impossible; with that in mind, it is incongruous to contend that crowding is not the basis or primary basis for seeking compelled transfers. See Money, 2020 WL 1820660, at *13.
Citing United States v. Cook County, 761 F. Supp. 2d 794 (N.D. Ill. 2000), the plaintiffs contend that the PLRA applies only to prisoner release orders that are "explicitly related to population caps," not to all such orders stemming primarily from crowding. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 32 (citing id. at 796 –97). That interpretation stretches the statute's language too far. Even if "[s]ponsors of the PLRA were especially concerned with courts setting 'population caps,'" Plata, 2013 WL 12436093, at *10 (quoting Gilmore v. California, 220 F.3d 987, 998 n. 14 (9th Cir. 2000)), the PLRA's text does not limit prisoner release orders issued by three-judge courts to only orders that set population caps, see 18 U.S.C. § 3626(a)(3)(E). United States v. Cook County does not suggest otherwise. The three-
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judge court in that case found "that overcrowding [was] a primary cause of unconstitutional conditions at the jail" because it caused, among other things, "excessive force by guards, grossly unsanitary and unhealthy conditions, and grossly inadequate medical (including mental-health) care." Cook County, 761 F. Supp. 2d at 797. Although these conditions might have existed even without overcrowding, overcrowding made them worse. Id. at 797–98. Thus the purpose of the prisoner release order in Cook County was not merely to set prison caps but, rather, to address constitutional violations caused primarily by overcrowding. See id. The same is true in this case: the severe medical risks posed by coronavirus would exist even if the Jail was not crowded, but the plaintiffs contend the crowding at the Jail significantly enhances those risks and makes the outbreak more challenging to control. The purpose of a transfer order would be to address alleged constitutional violations stemming from coronavirus due to crowding in the Jail, and that is the type of order than only a three-judge court may issue.
4. Three-judge court The plaintiffs also have asked the Court to convene a three-judge court "to consider whether and to what extent to enter a prisoner release order." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 2. Under the PLRA, "[i]n any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court." 18 U.S.C.§ 3626(a)(3)(B). The Sheriff contends that the requirements for convening a three-judge court have not been met. The PLRA provides that no court may enter a prisoner release order unless two requirements are met. 18 U.S.C. § 3636(a)(3)(A). First, a court must have "previously
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entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order." Id. § 3636(a)(3)(A)(i) (the "previous order requirement"). In addition, the defendant must have "had a reasonable amount of time to comply with the previous court orders." Id. § 3636(a)(3)(A)(ii) (the "reasonable time requirement").
Together, these requirements ensure that a three-judge court's prisoner release order is a "last resort remedy." Brown, 563 U.S. at 514. A party requesting a prisoner release order and the convening of a three-judge court must file "materials sufficient to demonstrate" that both requirements have been met. Id. § 3636(a)(3)(C). A federal judge can also request sua sponte the convening of a three-judge court if both requirements are met. Id. § 3636(a)(3)(D). The judge need not consider the likelihood of whether a three-judge court would issue a prisoner release order. See Plata v. Schwarzenegger, No. C01-1351-TEH, 2007 WL 2122657, at *1 (N.D. Cal. July 23, 2007).
a. Previous order requirement The Court starts with the previous order requirement. It previously entered an order for less intrusive relief by issuing the TRO. Mays, 2020 WL 1812381, at *14–16. The Sheriff contends that the TRO does not satisfy the PLRA's previous order requirement because it did not include an order requiring social distancing. In the TRO decision, the Court found that the plaintiffs had failed "to show a reasonable likelihood of success on their contention that the Sheriff is acting in an objectively unreasonable manner by failing to mandate full social distancing." Id. at *10. The Court declined to order relief with respect to social distancing throughout the Jail but required the Sheriff
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to enforce social distancing in connection with the new detainee intake process. Id. at *14.
The previous order requirement is "satisfied if the court has entered one order [that] 'failed to remedy' the constitutional violation." Brown v. Plata, 563 U.S. at 514. Neither the statute nor the relevant case law suggests that a court must attempt all possible steps short of release before requesting the convening of a three-judge court. See 18 U.S.C. § 3636; Brown, 563 at 514–16. And the PLRA does not require a previous order involving a particular type of remedy; instead, it simply requires a previous order that attempted but failed to remedy the constitutional deprivation itself. See id. In Brown, the Supreme Court affirmed an order of a three-judge court mandating a population limit for California's prison system as a remedy for constitutional violations in two class actions, one involving a class of prisoners with serious mental disorders and the other involving prisoners with serious medical conditions. Id. at 499, 502. The Court found that district courts "acted reasonably when they convened a three-judge court," despite recent, ongoing plans to address the at-issue constitutional violations, because they "had a solid basis to doubt" that the "additional efforts . . . would achieve a remedy." Id. at 516.
In the TRO, the Court ordered relief less intrusive than a prisoner release order. Specifically, it required the Sheriff to establish and implement policies regarding coronavirus testing and sanitation in the Jail, implement social distancing during the new detainee intake process, provide adequate soap and/or hand sanitizer and sanitation supplies, and provide facemasks to all detained persons who are quarantined. Mays, 2020 WL 1812381, at *14–15. Because the TRO has not remedied
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the overall claimed constitutional violation—deficient conditions in the Jail during a pandemic—it satisfied the PLRA's previous order requirement.
b. Reasonable time requirement Additionally, before a three-judge court is convened under the PLRA, the defendant must have "had a reasonable amount of time to comply with the previous court orders," as indicated. Id. § 3636(a)(3)(A)(ii). This provision "requires that the defendant have been given a reasonable time to comply with all of the court's orders." Brown, 563 U.S. at 514 (emphasis added). In some situations, a court may need "to issue multiple orders directing and adjusting ongoing remedial efforts" while it "attempts to remedy an entrenched constitutional violation through reform of a complex institution." Id. at 516. "Each new order must be given a reasonable time to succeed, [and] reasonableness must be assessed in light of the entire history of the court's remedial efforts." Id. But a court may request the convening of a three-judge court even while its remedial efforts are ongoing; otherwise, a court unreasonably would have "to impose a moratorium on new remedial orders" before a three-judge court considers the issuance of a prisoner release. Id. In Brown, the Supreme Court found that defendants in the two consolidated cases had reasonable time to comply with court orders where one court had "engaged in remedial efforts" for five years and the other court had done so for twelve years. Id. Remedial efforts were ongoing when the district courts requested three-judge courts, but those ongoing efforts merely attempted "to solve the crisis" through the same "basic plan[s]" as earlier efforts. Id. at 515. In one case, a special master the district court
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appointed to oversee remedial matters had issued over seventy remedial orders. Id. The courts had no "assurance[s] that further, substantially similar efforts would yield success absent a population reduction." Id. Indeed, advances that had been made in one case were "'slip-sliding away' as a result of overcrowding." Id. (quoting courtappointed special master).
The plaintiffs contend that the Sheriff has had a reasonable time to comply with the Court's previous order. They have requested a preliminary injunction ordering social distancing, but, in light of the urgency of the situation, they also have requested the convening of a three-judge court to consider the question of prisoner release. The plaintiffs appear to contend that if an injunction directing social distancing does not remedy the alleged constitutional violations, then only the immediate release of prisoners by a three-judge court will achieve a remedy, so a three-judge court needs to be ready to issue a ruling as soon as that time comes. The Sheriff contends that he has not reasonably had time to comply with any such order because the Court has not directed him to implement social distancing throughout the Jail.
The Court recognizes that determination of what amounts to a "reasonable time" to comply with a court's previous orders may depend on the circumstances, and here the circumstances are extraordinary, involving an infectious virus that can be transmitted quickly from person to person. So here, perhaps, a "reasonable time" may amount to days or a small number of weeks, not years as may be the case in other situations. Undue delays in responding to the coronavirus pandemic may place detained persons' health and lives in imminent danger.
Unlike in Brown, however, the ongoing remedial efforts in this case might remedy
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the ongoing constitutional violation—which, to be clear, involves the objective reasonableness of the Sheriff's response to the coronavirus outbreak, not existence of coronavirus itself—if given adequate time. The Sheriff has offered evidence that may be understood to suggest that he is making a substantial effort to comply with the Court's order and attempt to improve the conditions of confinement at the Jail in response to the coronavirus pandemic. As detailed earlier in this opinion, he has complied with the TRO by implementing social distancing at intake; developing and implementing a plan to distribute soap, sanitizer, and cleaning suppliers more frequently; and providing facemasks to detained persons housed on tiers under quarantine. In addition, he has made efforts to spread out detainees within the Jail, even though the TRO did not mandate it. As detailed earlier, he has opened up previously closed units, doubled the number of persons housed in single-occupancy cells, attempted to ensure that detained persons are assigned beds in dorm units that are spaced more than six feet apart, and adopted various practices to encourage detained persons to practice social distancing in dorms and in common areas. As the Court has explained, it believes that the narrowly tailored relief it is ordering via this opinion appropriately addressed the claimed constitutional violations on which the plaintiffs have shown a likelihood of success. Unlike in Brown, the additional relief ordered in this decision is not based on the same "basic plan" as earlier efforts but rather takes a different and focused approach. Brown, 563 U.S. at 515. In short, it will require preventative public health measures that the Court has not previously ordered and that the Sheriff has not shown he has implemented.
Further, although the PLRA's previous order requirement refers to a single order,
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its reasonable time requirement uses the plural "orders." Compare 18 U.S.C. § 3626(a)(3)(A)(i) with id. § 3626(a)(3)(A)(ii); see also Brown, 563 U.S. at 514. Nothing in the statute or the relevant case law indicates that a court must convene a three-judge panel after issuing only one order. Rather, the case law reflects that a court can, and perhaps in some circumstances should, make additional efforts beyond a single TRO before convening a three-judge court to consider ordering the release of imprisoned or detained persons. See id. (releasing prisoners is a "last resort remedy"). This seems particularly true where, as here, a Court has a basis on which to issue an additional order that is not "substantially similar" to its previous order and thus can attempt a new approach to remedying the constitutional violation that might "yield success." Cf. Brown, 563 U.S. at 515.
For these reasons, the Court is not persuaded that it has given its less-intrusive orders "a reasonable time to succeed," Brown, 563 U.S. at 516; that the Sheriff has "reasonable amount of time to comply" with those orders, 18 U.S.C. § 3636(a)(3)(A)(ii); or that the Sheriff could have reasonable time to comply in light of the further efforts the Court is taking in this order to remedy the claimed constitutional violations. The Court concludes that the PLRA's reasonable time prerequisite for the convening of a threejudge court has not yet been satisfied.
For these reasons, the Court declines to request the convening of a three-judge court. 13
13 As the Court has previously advised the parties, however, immediately after the issuance of the TRO, the Court advised the chief circuit judge of the pendency of the case and the potential need, at some point, to convene a three-judge court.
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5. Irreparable harm In addition to showing a likelihood of success on the merits, the plaintiffs must show that they will likely suffer irreparable harm without a preliminary injunction. Whitaker, 858 F.3d at 1044. Irreparable harm is "harm that cannot be repaired and for which money compensation is inadequate." Orr v. Shicker, 953 F.3d 490, 502 (7th Cir. 2020) (internal quotation marks omitted). The plaintiffs must show more than a "mere possibility" of harm but not that harm has already occurred or is certain to occur. Whitaker, 858 F.3d at 1045. "[A] remedy for unsafe conditions need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33 (1993). The plaintiffs have satisfied this requirement. They have shown a likelihood that, without additional measures to expand and enforce social distancing and the continuation of measures aimed at enhancing sanitation of surfaces within the Jail and otherwise curbing the spread of coronavirus among detained persons, some of the class members will contract the virus. If they contract coronavirus, class members— particularly those over the age of sixty-five or with certain preexisting health conditions—risk severe health consequences, including death. These grave risks to health are not an insignificant possibility for the class members, all of whom are live in the Jail's congregate environment, where the coronavirus has been spreading for weeks and where detained persons—even those who sleep their own cells—share spaces like common areas and showers. Therefore, the plaintiffs have adequately shown a likelihood that they will suffer irreparable harm without a preliminary injunction. 6. No adequate remedy at law The plaintiffs also must show that they have no adequate remedy at law should
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the preliminary injunction not issue. Whitaker, 858 F.3d at 1046. They are not required to show that a remedy is "wholly ineffectual" but rather "that any award would be seriously deficient as compared to the harm suffered." Id. Where harm cannot be practicably remedied by monetary damages, there is no adequate legal remedy. See id.; Foodcomm Int'l v. Barry, 328 F.3d 300, 304 (7th Cir. 2003); see also W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1126–27 (N.D. Ill. 2018) (no adequate remedy of law to address harm from prolonging child's separation from parent). The plaintiffs have clearly shown that the risk of harm to their health and possibly their lives cannot be fully remedied through damages, and therefore they have shown that they have no adequate remedy at law.
7. Balancing of harms "Once a moving party has met its burden of establishing the threshold requirements for a preliminary injunction, the court must balance the harms faced by both parties and the public as a whole." Whitaker, 858 F.3d at 1054. The nature of the balancing analysis depends on the moving party's likelihood of success: the higher the likelihood, the more the balance tips in favor of granting injunctive relief. Id. Before issuing an injunction ordering a defendant to perform an affirmative act, which can impose "significant burdens on the defendant," a court must give "careful consideration [to] the intrusiveness of the ordered act, as well as the difficulties that may be encountered in supervising the enjoined party's compliance with the court's order." Kartman, 634 F.3d at 892 (discussing certification of a class seeking mandatory injunctive relief). The Sheriff argues that the balance of harms weighs against issuing a
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preliminary injunction because he is doing the best he can to contain the spread of coronavirus at the Jail, including, he contends, following the CDC Guidelines to the greatest extent possible. He argues that an order requiring him to implement more health and protective measures would be disruptive to his ongoing and persistent efforts to protect detainees from coronavirus. He also argues that the Court should defer to his expertise and judgment regarding the best policies and practices to implement at the Jail, particularly in light of the fundamental need for him to maintain internal security and order. See Bell, 441 U.S. at 547–48. The plaintiffs contend that the risk of severe health consequences or death to the class members is so grave that it tips the balance of harms in favor of granting a preliminary injunction. Additionally, the plaintiffs argue the public's interest in containing outbreaks of coronavirus favors granting injunctive relief.
The Court concludes that the balance favors granting preliminary injunctive relief to the plaintiffs to the limited extent contemplated by this order. First, as detailed above, the plaintiffs have presented ample evidence of conditions that pose an unreasonable risk of serious harm to the class members' health and, despite the laudable strides the Sheriff has made since the Court issued the TRO, at least some shortcomings in the Sheriff's mitigation of that risk. This evidence tips the balance in favor of injunctive relief because, as the Court has explained, the plaintiffs have far surpassed their burden of demonstrating a "better than negligible" likelihood of success on the merits. Whitaker, 858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). The interest of the public in containing the spread of coronavirus further tips the balance in favor of injunctive relief.
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As it did in issuing the TRO, the Court acknowledges the deference owed to the Sheriff in the operation of the Jail and in his development of internal procedures to maintain safety, order, and security and to response to this severe crisis. The Court recognizes the immense amount of time and work that the Sheriff and his staff have spent trying to respond to this crisis. The Court further recognizes that compliance with judicial orders impose burdens on the Sheriff and his staff, in no small part by requiring them to devote some of their limited time and resources to following a court's directives.
The Court has taken these considerations into account in ordering the limited relief described in this order. It has ensured that the relief is narrowly drawn, extends no further than necessary, and is the least intrusive means necessary to address the shortcomings discussed earlier in this opinion. The Court has tailored the relief to account for deference to the Jail's ongoing planning and efforts to address the risks associated with the coronavirus outbreak. The Court also has, as indicated earlier, taken into account the enhanced requirements for issuing what it has referred to as a "mandatory injunction." And the Court has concluded that it will not encounter significant obstacles in supervising the order despite its mandatory nature. Despite these considerations, the risk to the health and safety of detainees and others is sufficient to permit and require preliminary injunctive relief. C. Preliminary injunctive relief
For the reasons stated above, the plaintiffs have met the criteria for a preliminary restraining order with regard to at least parts of Count 1 of their complaint. The Court orders as follows and will also include this in a separate preliminary injunction order issued under Federal Rule of Civil Procedure 65(d).
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• The Sheriff shall maintain and carry out a policy requiring prompt coronavirus testing of: (1) detained persons who exhibit symptoms consistent with coronavirus disease, and (2) at medically appropriate times, detained persons who have been exposed to others who have exhibited those symptoms or have tested positive for coronavirus. With regard to the category (2), the Sheriff must acquire and maintain sufficient testing materials so that determination of the appropriateness of testing such persons is made pursuant to medical and public health considerations and not the availability of testing materials.
• The Sheriff shall enforce social distancing during the new detainee intake process, including continued suspension of the use of bullpens and other multiple-person cells or enclosures to hold new detainees awaiting intake.
• The Sheriff shall provide soap and/or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands.
• The Sheriff shall provide sanitation supplies sufficient and adequate to enable all staff and detainees to regularly sanitize surfaces and objects on which the virus could be present, including in all areas occupied or frequented by more than one person (such as two-person cells, as well as bathrooms, showers, and other surfaces in common areas). The Sheriff shall also maintain and carry out a policy requiring sanitization between all uses of frequently touched surfaces and objects as well as monitoring and supervision to ensure that such sanitization takes place regularly.
• The Sheriff shall provide facemasks to all detained persons who are quarantined—i.e., those who have been exposed to a detained person who is
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symptomatic (even if not coronavirus-positive). The facemasks must be replaced at medically appropriate intervals, and the Sheriff must provide the users with instruction on how to use a facemask and the reasons for its use. • The Sheriff shall establish by no later than April 29, 2020 and shall put into effect by no later than May 1, 2020 a policy precluding group housing or double celling of detained persons, except in the following situations:
o Persons detained in tiers or dormitories currently under quarantine following a positive test for the coronavirus within the tier or dormitory ("quarantine tiers");
o Detained persons who have tested positive for the coronavirus and are under medical observation ("isolation tiers");
o Detained persons who have tested positive for coronavirus and are recovering ("convalescent tiers");
o Double-celled or dormitory-housed detainees for whom there is a documented determination by a medical or mental health professional that single-celling poses a risk of suicide or self-harm;
o Persons detained housed in a dormitory unit that is at less than fifty percent capacity; and
o Detained persons committed, at the documented direction of a medical or mental health professional, to a group housing unit that is equipped for medical or mental health treatment, if but only if there is not available space in an appropriate housing or medical unit that permits full social distancing.
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• Detained persons housed in any of the listed "acceptable" arrangements must be provided with facemasks that are replaced at medically appropriate intervals. The detained persons must be provided with instruction on how to use a facemask and the reasons for its use. They also must be instructed, at regular intervals, on the importance of social distancing.
• On May 1, 2020, the Sheriff shall file a report regarding his compliance with the terms of the preliminary injunction. Finally, the Court will entertain submissions by the parties regarding the duration
of the preliminary injunction, in particular the social distancing provisions. Typically, a preliminary injunction lasts until the trial on the merits, but the order the Court is entering is predicated on an underlying condition—the ongoing pandemic—that, one can hope, will not last indefinitely. Under ordinary circumstances, there is nothing constitutionally inappropriate about housing detained persons in groups and allowing them to come into contact with each other. Currently we are not living in ordinary circumstances—hence the preliminary injunction—but once matters return to something approaching normal, it may be appropriate to loosen the requirements of the injunction. The Court (either the emergency judge or the assigned judge) will address this with the parties at a future date.
Conclusion The Court grants the plaintiffs' motion for preliminary injunction in part and denies it in part as set out in this Memorandum Opinion and Order [dkt. no. 55].

Date: April 27, 2020

________________________________ MATTHEW F. KENNELLY United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, individually and on

)

behalf of a class of similarly situated

)

persons; and JUDIA JACKSON, as next )

friend of KENNETH FOSTER, individually )

and on behalf of a class of similarly

)

situated persons,

)

)

Plaintiffs-Petitioners,

)

)

vs.

)

)

THOMAS DART,

)

)

Defendant-Respondent.

)

Case No. 20 C 2134

PRELIMINARY INJUNCTION

The Court, having found that the plaintiffs in this case have met the criteria for a

preliminary injunction with regard to at least parts of Count 1 of their complaint, issues

the following preliminary injunction directing the Sheriff of Cook County as follows

pending trial on the merits:

• The Sheriff shall maintain and carry out a policy requiring prompt coronavirus

testing of: (1) detained persons who exhibit symptoms consistent with

coronavirus disease, and (2) at medically appropriate times, detained persons

who have been exposed to others who have exhibited those symptoms or have

tested positive for coronavirus. With regard to the category (2), the Sheriff must

acquire and maintain sufficient testing materials so that determination of the

appropriateness of testing such persons is made pursuant to medical and public

health considerations and not the availability of testing materials.

• The Sheriff shall enforce social distancing during the new detainee intake

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process, including continued suspension of the use of bullpens and other multiple-person cells or enclosures to hold new detainees awaiting intake. • The Sheriff shall provide soap and/or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands. • The Sheriff shall provide sanitation supplies sufficient and adequate to enable all staff and detainees to regularly sanitize surfaces and objects on which the virus could be present, including in all areas occupied or frequented by more than one person (such as two-person cells, as well as bathrooms, showers, and other surfaces in common areas). The Sheriff shall also maintain and carry out a policy requiring sanitization between all uses of frequently touched surfaces and objects as well as monitoring and supervision to ensure that such sanitization takes place regularly. • The Sheriff shall provide facemasks to all detained persons who are quarantined—i.e., those who have been exposed to a detained person who is symptomatic (even if not coronavirus-positive). The facemasks must be replaced at medically appropriate intervals, and the Sheriff must provide the users with instruction on how to use a facemask and the reasons for its use. • The Sheriff shall establish by no later than April 29, 2020 and shall put into effect by no later than May 1, 2020 a policy precluding group housing or double celling of detained persons, except in the following situations:
o Persons detained in tiers or dormitories currently under quarantine following a positive test for the coronavirus within the tier or dormitory ("quarantine tiers");

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o Detained persons who have tested positive for the coronavirus and are

under medical observation ("isolation tiers");

o Detained persons who have tested positive for coronavirus and are

recovering ("convalescent tiers");

o Double-celled or dormitory-housed detainees for whom there is a

documented determination by a medical or mental health professional that

single-celling poses a risk of suicide or self-harm;

o Persons detained housed in a dormitory unit that is at less than fifty

percent capacity; and

o Detained persons committed, at the documented direction of a medical or

mental health professional, to a group housing unit that is equipped for

medical or mental health treatment, if but only if there is not available

space in an appropriate housing or medical unit that permits full social

distancing.

• Detained persons housed in any of the listed "acceptable" arrangements must be

provided with facemasks that are replaced at medically appropriate intervals.

The detained persons must be provided with instruction on how to use a

facemask and the reasons for its use. They also must be instructed, at regular

intervals, on the importance of social distancing.

• On May 1, 2020, the Sheriff shall file a report regarding his compliance with the

terms of the preliminary injunction.

Date: April 27, 2020

________________________________ MATTHEW F. KENNELLY United States District Judge

 
 Case: 1:20-cv-02134 Document #: 109 Filed: 05/29/20 Page 1 of 12 PageID #:2976

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, individually and on

)

behalf of a class of similarly situated

)

persons; and JUDIA JACKSON, as next )

friend of KENNETH FOSTER, individually )

and on behalf of a class of similarly

)

situated persons,

)

)

Plaintiffs-Petitioners,

)

)

vs.

)

)

THOMAS DART,

)

)

Defendant-Respondent.

)

Case No. 20 C 2134

MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge, as emergency judge:
On April 27, 2020, the Court granted in part the plaintiffs' motion for a preliminary injunction in this class action lawsuit regarding conditions at the Cook County Jail, ordering some of the relief sought by the plaintiffs but denying a number of their requests. See Mays v. Dart, No. 20 C 2134, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020) ("Mays 2"). The preliminary injunction tracked a temporary restraining order entered about three weeks earlier but included one additional requirement. See Mays v. Dart, No. 20 C 2134, 2020 WL 1812381 (N.D. Ill. Apr. 9, 2020) ("Mays 1").
The preliminary injunction also directed the Sheriff of Cook County—the defendant in the case—to submit a report regarding compliance. The Sheriff did this on May 1, 2020. On May 6, 2020, the plaintiffs filed a response to the Sheriff's report in which they sought expedited discovery, contending they needed this to determine

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compliance with the preliminary injunction. On May 11, the Sheriff objected and moved to strike the request for expedited discovery. Also on May 11, the Sheriff filed a notice of appeal from the preliminary injunction. Eight days after that, on May 19—a little over three weeks after entry of the preliminary injunction—the Sheriff moved for a stay pending appeal and repeated his request to strike the plaintiffs' proposed expedited discovery requests. At the request of the judge assigned to the case, the undersigned judge, acting as emergency judge, directed the plaintiffs to respond to the stay motion the next day and heard argument on the Sheriff's stay motion as well as the plaintiffs' expedited discovery request on May 21, 2020.
For the reasons stated below, the Court denies the Sheriff's motion to stay the preliminary injunction pending appeal and also denies the plaintiffs' request for expedited discovery.
Discussion Familiarity with the Court's temporary restraining order and preliminary injunction decisions is assumed. The plaintiffs in this case contend that the Sheriff is violating the Fourteenth Amendment due process rights of persons detained at the Jail by failing to provide them with reasonably safe living conditions in the face of the coronavirus pandemic. In their motion for a preliminary injunction (as in their TRO motion), the plaintiffs sought wide-ranging relief. This included mandatory social distancing of detained persons throughout the Jail—relief that would amount to universal singlecelling and then some; transfer of detained persons to electronic home monitoring; and convening a three-judge court under the Prison Litigation Reform Act to consider the release of detained persons. The plaintiffs also sought measures to identify and
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separate medically vulnerable detained persons and to require coronavirus testing, cleaning of Jail facilities, and provision of personal protective equipment.
After extensive briefing and hearings, the Court granted the plaintiffs' motions, but only in part. The Court entered a TRO including certain requirements on April 9 and a preliminary injunction with those same requirements plus one more on April 27. On both occasions, however, the Court overruled the plaintiffs' requests for sweeping remedies, declining their requests to release detainees with medical vulnerabilities, mandate full "social distancing" throughout the jail, and convene a three-judge court to prisoner releases.
The Sheriff has moved to stay the preliminary injunction pending appeal, and plaintiffs have moved for expedited discovery to assess the Sheriff's compliance with the injunction. The Court addresses each request in turn. 1. Stay pending appeal
In deciding whether to stay an order pending appeal, a court considers whether the movant "has made a strong showing that he is likely to succeed on the merits"; whether the movant will be irreparably injured absent a stay; whether a stay "will substantially injure the other parties interested in the proceeding"; and "where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
a. Movant's likelihood of success The Sheriff has not made a "strong showing" of likelihood of success. The record before the Court when it issued the preliminary injunction reflected that the people detained at the Jail faced a real and persistent danger to their health. As of April 9, when the Court issued a temporary restraining order that embodied most of the relief
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extended via the preliminary injunction, the Jail had the largest single concentration of confirmed coronavirus infections in the entire country. See Mays 1, 2020 WL 1812381, at *2. At the time of the preliminary injunction, although the number of positive-tested detained persons in isolation had declined, the overall positive test numbers were continuing to increase (350 on April 17 vs. 289 on April 10), indicating that the virus was continuing to spread within the Jail. See Def.'s Resp. to Pls.' Mot. for Prelim. Inj. at 2-3. Before the issuance of the TRO and the preliminary injunction, the Sheriff had, undeniably, taken steps to attempt to stem the spread of the virus. But the Constitution does not say that so long as a jailer does something, he complies with constitutional obligations. Rather, if jailer does not take objectively reasonable steps to protect detained persons from a known and serious risk, he violates the Fourteenth Amendment. The Court concluded that plaintiffs had established a reasonable likelihood of showing the objective unreasonableness of some of the Sheriff's actions or inaction.
In seeking a stay of the preliminary injunction, the Sheriff contends that he has consistently acted in good faith, and the Court does not dispute this. But the Sheriff's intent was not and is not the issue. The law in this Circuit is clear that conditions of confinement cases involving pretrial detainees are judged by a standard of objective reasonableness, not by assessing whether the Sheriff had good or bad intentions. See, e.g., Hardeman v. Curran, 933 F.3d 816, 823-24 (7th Cir. 2019). The Court notes that in this regard, this case is nothing like two cases cited by the Sheriff in his motion to stay, in which appellate courts granted stays of coronavirus-related preliminary injunctions. See Swain v. Junior, 958 F.3d 1051 (11th Cir. 2020); Valentine v. Collier,
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956 F.3d 797 (11th Cir. 2020). The courts in those cases found a significant likelihood of success on the part of the jailer largely due to the absence of evidence that the jailer exhibited the intent required by those Circuits, specifically, deliberate indifference. That is not the standard that applies in this Circuit or in this case. The Sheriff may not have exhibited deliberate indifference, but that is not the same as saying that his actions or inaction were objectively reasonable.
The Sheriff also contends that his approach has worked, citing decreases in the incidence of new coronavirus cases at the Jail over the last several weeks. There are at least two problems with this argument. First, it amounts to 20/20 hindsight. The Court ruled, and had to rule, based on the record as it was presented at the time, not based on how things turned out several weeks later. Second, the TRO and preliminary injunction directed the Sheriff to take steps he was not already taking or was not taking in an effective way. In particular, the Court's orders directed the Sheriff to do the following:
• cease the use of crowded "bullpens" holding multiple detained persons at intake; • (on the preliminary injunction) enforce social distancing in most of the Jail; • obtain and distribute facemasks to persons exposed to infected or quarantined
detainees; • establish a Sheriff's Office policy to implement prompt testing for detained
persons exhibiting symptoms of coronavirus disease; • enable actual, not just theoretical, access to adequate sanitation supplies; and • actually enforce cleaning and sanitation requirements in areas of the Jail
accessed in common, such as showers, bathrooms, and day rooms.
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The Sheriff's argument about positive results does not account for the very real possibility that the measures ordered by the Court at the TRO and preliminary injunction stage contributed to those results.
On the merits, the Sheriff's primary argument appears to be that guidelines for prison and jail administrators issued by the Centers for Disease Control are determinative of the question of objective reasonableness and that he has consistently complied with them. This contention likewise has at least two flaws. First, the Sheriff has cited no authority establishing that an externally-created set of guidelines like these amounts to a constitutional measuring stick. Rather, the law in this Circuit is that such guidelines are relevant in determining objective reasonableness, but not determinative. See, e.g., United States v. Brown, 871 F.3d 532, 538 (7th Cir. 2017); Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 1996). In the respect most pertinent to this case, the CDC guidelines set a feasibility or practicality limitation that, the Court concluded, could not be determinative of the constitutional question presented by plaintiffs' claims. Second, and perhaps just as importantly, the record established that the Jail had not yet reached feasibility limitations regarding the spacing of detained persons: the Jail's executive director so testified at the preliminary injunction hearing, indicating that the Jail had additional space that could be used to further spread out detainees. Thus the record reflected that the Sheriff's practices in this particular respect did not measure up to the CDC guidelines.
Next, contrary to the Sheriff's contention, the Court did not fail to give appropriate deference to the Sheriff's expertise or his interest in appropriate management of the Jail. To the contrary, the Court did exactly what the law requires. See Mays 2, 2020
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WL 1987007, at *27 (citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2073 (2015); Bell v. Wolfish, 441 U.S. 520, 547 (1979)). Indeed, the Court rejected, both at the TRO and preliminary injunction stages, much—in fact most—of the relief sought by plaintiffs. Specifically, the Court declined to:
• order the Sheriff to identify and triage detained persons believed to be medically vulnerable;
• relocate vulnerable detainees to custodial (and perhaps non-custodial) locations other than the Jail;
• mandate full social distancing throughout the Jail; • distribute personal protective equipment to every detained person; • institute a robust program of coronavirus testing of all detainees throughout the
Jail; and • convene a three-judge court to consider releasing detained persons from the Jail. On each of these points, the Court either found that plaintiffs were unlikely to be able to show the Sheriff's actions were objectively unreasonable, or deferred to the Sheriff's expertise and discretion, or both.
One certainly understand why, as a strategic matter, the Sheriff's motion for a stay omits any reference to what the Court did not order. But a look at the full picture confirms that the Court followed a careful and restrained approach, honoring both the constitutional entitlement of detained persons to reasonable measures to protect their physical health and the Sheriff's legitimate interest in maintaining security, preserving order, and making discretionary determinations regarding allocation of resources. The law is clear that a court must consider both. The Supreme Court has stated that
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although courts must be "sensitive to . . . the need for deference to experienced and expert prison administrators," they "nevertheless must not shrink from their obligation to “enforce the constitutional rights of all persons, including prisoners. Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration." Brown v. Plata, 563 U.S. 492, 511 (2011) (internal quotation marks and citation omitted).
In sum, the Court concludes that the Sheriff has not shown, let along "strongly" shown, that he is likely to succeed on appeal.
b. Irreparable injury to movant The Sheriff's argument regarding irreparable injury likewise falls short. In fact, the Sheriff's position on this point is internally inconsistent. One the one hand, he contends that the Court has "undermine[d]" his "thoughtful and reasonable" approach to the coronavirus pandemic as it affects the Jail. Def.'s Mot. to Stay at 13. On the other hand, he contends that the Court has essentially ordered him to do what he was already doing, id. at 12, thereby inserting itself as an unnecessary watchdog. Both cannot be true at the same time. The fact is that the Court has done neither. The Court observes, though, that it is difficult to see how the Sheriff will experience "irreparable harm" if he has to comply with the injunction by doing what he says he would do anyway. The Sheriff says that the additional burden imposed by court oversight amounts to irreparable harm. The upshot of this argument, however, is that any party appealing an injunction would automatically meet the irreparable harm requirement for a stay— because an injunction is, after all, an injunction. This cannot be the case. That aside, the Court has not imposed any monitoring requirements beyond the initial compliance
8

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report, which the Sheriff filed over three weeks ago and thus which cannot possibly constitute irreparable harm. The Court declined plaintiffs' requests to appoint outside monitors and to permit inspections of the Jail's facilities.
Finally, at argument, the Sheriff's counsel seemed to suggest that the fact that the plaintiffs had served discovery requests and were thereby trying to, in effect, stick their noses into his operations and decision-making amounts to irreparable harm. This cannot be the case either. Again, as the Sheriff's counsel conceded, a case does not end with a preliminary injunction; it is commonplace for discovery to proceed in a lawsuit even after a preliminary injunction is issued. So dealing with discovery requests cannot possibly constitute irreparable harm either. (Regardless, as discussed below, the Court is relieving the Sheriff of the burden of responding to plaintiffs' discovery requests at this time).
Last but not least on the question of irreparable harm, it is noteworthy that the Sheriff waited more than three weeks after the issuance of the preliminary injunction before moving for a stay. This cuts against the contention that the Sheriff has experienced, or will experience, much harm at all, let alone harm appropriately considered to be irreparable.1
1 It may be that the Sheriff's real concern involves the potential for future problems should increased population at the Jail limit his ability to comply with social distancing requirements. On this, though, it is worth noting that the Court specifically invited the Sheriff to make a request to include certain at-risk detainees among those who may be appropriately detained in group housing, see Mays 2, 2020 WL 1987007, at *34, and to return to court to loosen the preliminary injunction's requirements if changed circumstances call for it, see id. at *37. The Sheriff has not taken the Court up on either invitation.
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c. Injury to parties other than movant The next question is whether a stay will risk substantial injury to other interested parties, specifically to the plaintiff class. This is essentially the flip side of the point just addressed. The Sheriff did not voluntarily take all of the coronavirus-protective measures that he cites. Some were done pursuant to court order—either the TRO, or the preliminary injunction, or both. Staying the injunction would permit the Sheriff to lift measures and thereby again place the health of detained persons at serious risk. That risk cannot be discounted based on the Sheriff's assurances alone. Again, a number of the measures he took were instituted only after the Court's TRO or preliminary injunction. See Mays 2, 2020 WL 1987007, at *29. The Court finds that there is at least some risk of substantial injury to detained persons if the preliminary injunction is stayed. d. The public interest On the question of the public interest, the Sheriff cites Nken v. Holder, 556 U.S. 418, 435 (2009), for the proposition that the Sheriff, as a public official, effectively embodies the public interest. See Def.'s Mot. to Stay at 19. It is not quite that simple. Here the Sheriff is charged with protecting not just the public at large, but also the detained persons placed in his custody, all or nearly all of whom have family members on the outside. Their interests are part of the public interest. And the detained persons' constitutional rights—and their health and lives—are at stake. It is anything but clear that the Sheriff can claim the public interest mantle entirely for himself. For the reasons described, the Court concludes that the Sheriff has not met the requirements for a stay of the preliminary injunction. The Court therefore denies his motion to stay.
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2. Plaintiffs' request for expedited discovery As the Court indicated earlier, and as the Sheriff's counsel conceded at
argument, the appeal of a preliminary injunction does not require the rest of the case to come to a halt in the district court. Put another way, a preliminary injunction is not the final resolution of a case. It follows that a party who is preliminarily enjoined is not relieved of the obligation to provide discovery in response to appropriate requests. In addition, as the Sheriff likewise conceded at argument, an appeal does not prevent the district court from enforcing a preliminary injunction. See, e.g., Union Oil Co. of Calif. v. Leavell, 220 F.3d 562, 565-66 (7th Cir. 2000).
Plaintiffs' discovery requests, they say, are aimed at determining compliance. This is plainly not the case for all of them; some involve matters beyond the relief the Court ordered in the injunction. But this does not make those particular requests inappropriate. They are within the realm of permissible discovery for the ongoing litigation of the case—which, again, does not end with the issuance of a preliminary injunction. The same is true of the plaintiffs' other requests; all of them appear to be within the scope of permissible discovery under Federal Rule of Civil Procedure 26(b)(1).
Defendants say that the Court should, and perhaps must, put the brakes on the plaintiffs' requested discovery because of the appeal. The question of whether and to what extent plaintiffs may engage in discovery, however, is not an emergency issue within the scope of the undersigned judge's role as emergency judge. The only aspect that is urgent is the request for expedited discovery; that is what the undersigned judge took on when requested by the assigned judge to handle the motions for a stay and for
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expedited discovery. All of that aside, the Court concludes that the expedited discovery requests have
not been properly served. Under Federal Rule of Civil Procedure Rule 26(d), a party "may not seek discovery" before the parties have conferred under Rule 26(f) or unless authorized by the Rules, a stipulation, or a court order. None of this has happened in this case. In particular, at the time the discovery had been served there had been no Rule 26(f) conference.
For these reasons, the Court directs that the Sheriff need not answer plaintiffs' current discovery requests. At the conclusion of the oral argument on the present motions on May 21, the Court directed the parties to submit a proposed scheduling order to the assigned judge by June 2, 2020 and to conduct their Rule 26(f) conference before that. Plaintiffs may re-serve their discovery requests following the Rule 26(f) conference and may, if appropriate, move the assigned judge to permit expedited discovery.
Conclusion For the reasons stated above, the Court denies defendant's motion to stay the preliminary injunction pending appeal [dkt. no. 98] and denies plaintiffs' motion for expedited discovery [dkt. no. 85]. Date: May 29, 2020
________________________________ MATTHEW F. KENNELLY United States District Judge
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 Case: 1:20-cv-02134 Document #: 127 Filed: 06/19/20 Page 1 of 1 PageID #:3106

Case: 20-1792 Document: 22

Filed: 06/19/2020 Pages: 1

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

June 19, 2020

ORDER
Before DIANE S. SYKES, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge AMY J. ST. EVE, Circuit Judge

No. 20-1792

ANTHONY MAYS, Individually and on behalf of a class of similarly situated persons, et al., Plaintiffs - Appellees
v.

THOMAS J. DART, Sheriff, Cook County, Illinois, Defendant - Appellant

Originating Case Information:

District Court No: 1:20-cv-02134 Northern District of Illinois, Eastern Division District Judge Matthew F. Kennelly

The following are before the Court:
1. MOTION FOR STAY PENDING APPEAL, filed on June 5, 2020, by counsel for the appellant.
2. CITATION OF ADDITIONAL AUTHORITY, filed on June 12, 2020, by counsel for the appellant.
3. PLAINTIFFS-APPELLEES’ RESPONSE TO DEFENDANT-APPELLANT’S MOTION FOR STAY, filed on June 12, 2020, by counsel for the appellees.
IT IS ORDERED that the motion to stay the preliminary injunction pending appeal is GRANTED in part. The injunction is STAYED to the extent that it requires the appellants to establish and put into effect a policy “precluding group housing or double celling of detained persons.” In all other respects, the motion is DENIED.

form name: c7_Order_3J(form ID: 177)

 
 Case: 20-1792 Document: 12-1

Filed: 06/05/2020 Pages: 20

No. 20-1792

IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

ANTHONY MAYS, individually and )

on behalf of a class of similarly situated )

persons, et al.,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

THOMAS J. DART, Sheriff, Cook

)

County, Illinois,

)

)

Defendant-Appellant.

)

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Case No. 1:20-cv-02134
Hon. Matthew F. Kennelly, Judge Presiding, in his Capacity as Emergency Judge.

MOTION FOR STAY PENDING APPEAL Pursuant to Rule 8(a)(2) of the Federal Rules of Appellate Procedure, DefendantAppellant Sheriff Thomas J. Dart respectfully requests that this Court stay enforcement of the mandatory preliminary injunction order and any discovery related to the underlying complaint pending appeal. In support of his motion, Sheriff Dart states as follows.
INTRODUCTION The Sheriff seeks a stay from the mandatory injunction order directing him to implement certain operational policies at the Cook County Jail related to the coronavirus pandemic. He is likely to succeed on the merits of this appeal because the court misinterpreted and misapplied the “objective reasonableness” standard governing constitutional claims brought by pretrial detainees. If the injunction remains in place throughout the appeal, the Sheriff will essentially cede control of critical and time-sensitive Jail operations to the district court, which has effectively made itself

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“super-warden” of the Jail. That type of invasive oversight will cause irreparable harm, not only for violating fundamental principles of federalism and judicial restraint, but also because compliance will significantly hamper the Sheriff’s ability to safely operate the Jail. Plaintiffs are not likely to suffer an unreasonable risk of harm if the injunction is stayed. Recent test data show that there are currently only 37 COVID-positive detainees in the Jail. The COVID test positivity rate is 3%, less than one-third of the rate in the surrounding community, which, by World Health Organization standards, indicates that the virus has been contained.1
The Sheriff sought a stay in district court, which was denied. However, the court failed to conduct any meaningful analysis of the relative harm to the parties in the event of a stay. In fact, the court failed to address the Sheriff’s argument on the lack of harm to Plaintiffs at all. (Dkt.109, ROA2985). Applying the standard properly here, this Court should find that the Sheriff has established that he is entitled to a stay of enforcement of the injunction and stay any further proceedings in the district court while the case is on appeal.
PROCEDURAL HISTORY On April 27, 2020, the district court entered a mandatory preliminary injunction against the Sheriff directing him to implement certain coronavirus-containment practices at the Cook County Jail, the vast majority of which have been in place since

1 Johns Hopkins University Coronavirus Resource Center, https://coronavirus.jhu.edu/testing/testing-positivity (last visited June 5, 2020).
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well before this lawsuit was filed. The injunction required the Sheriff to continue providing detainees with soap, facemasks, and cleaning supplies; to ensure that Cermak Health Services continues to administer COVID-19 tests to symptomatic detainees and those exposed to COVID-positive detainees, as medically indicated; and to implement strict six-foot social distancing during the Jail intake process and in the housing units, subject to certain exceptions. (Dkt. 73, ROA2017-18).
Five days later, the Sheriff filed a status report on implementation of the injunction, as the order required. In it, he stated that he was fully compliant with the terms of the injunction at that time. But he cautioned that he was close to reaching the “feasibility limit” of his ability to maintain strict social distancing in the housing areas, based on the ever-changing population at the Jail and the complex factors involved in making housing assignments. (Dkt.84, ROA2216-17).
Several days later, the Fifth, Ninth, and Eleventh Circuit Courts of Appeals issued orders staying enforcement of mandatory injunctions against local jails that were nearly identical to the one at issue here.2 The appellate courts held that the injunction orders gave district courts the power to impermissibly interfere with jail operations, essentially making them “super-wardens” of the jails at a time when a jail director’s expertise is most needed, and when a court’s interference is most detrimental.

2 Swain v. Junior, 2020 U.S. App. LEXIS 14301 (11th Cir., May 5, 2020); Roman v. Wolf, 2020 U.S. App. LEXIS 14331 (9th Cir., May 5, 2020); Valentine v. Collier, 2020 U.S. App. LEXIS 12941 (5th Cir., Apr. 22, 2020).
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In light of this newly-developed case law, and a persistent threat of contempt for potentially running afoul of the injunction, the Sheriff filed a timely notice of appeal on May 11, 2020. Several days later, the Sheriff discovered that the coronavirus test positivity rate in the Jail had decreased dramatically, to the point of being nearly contained, according to World Health Organization standards. In light of these developments, the Sheriff moved to stay enforcement of the injunction pending appeal. On May 29, 2020, following argument by the parties, the district court denied the motion. (Dkt.109, ROA2976; Exh. A, Hearing Transcript, 5/21/20). The Sheriff now renews his motion in this Court.
ARGUMENT The Seventh Circuit applies a “sliding scale” approach when deciding whether to issue a stay of a district court’s ruling pending an appeal. See Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006); Sofinet v. INS, 188 F.3d 703, 706-07 (7th Cir. 1999); In re Forty-Eight Insulations, Inc. 115 F.3d 1294, 1300-01 (7th Cir. 1997); Cavel International, Inc. v. Madigan, 500 F.3d 544, 547 (7th Cir. 2007). Under this sliding scale approach, “the more likely it is that [the party requesting injunctive relief] will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the [moving party] will succeed, the more the balance need weigh toward its side.” Sofinet v. INS, 188 F.3d at 706-707 (quoting Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6 (7th Cir. 1992)). In this case, the district court failed to conduct a meaningful analysis of the balancing of harms when ruling on the Sheriff’s motion, and denied the motion based on the merits of the appeal alone. As such, it did not exercise its discretion as required under
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the standard and its decision is not entitled to deference. Cavel Int’l, 500 F.3d at 547. The Court may conclude, on plenary review, that a stay is warranted.
I. The Sheriff is Likely to Succeed on Appeal Because the District Court Misapplied the Objective Reasonableness Standard.
Plaintiffs, a proposed class of pretrial detainees, alleged that the Sheriff failed to protect them from the risk of contracting coronavirus in the Jail. Following the United States Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015), this Court applies the objective reasonableness standard under the fourteenth amendment to evaluate conditions of confinement claims brought by pretrial detainees. Hardeman v. Curran, 933 F.3d 816, 822 (7th Cir. 2019). It appears that this may be the first case to apply this emerging “objective reasonableness” standard in the context of the coronavirus pandemic.
When evaluating whether a jail director’s conduct was objectively reasonable under the fourteenth amendment, courts must consider the “perspective of a reasonable [jail director],” including what he “knew at the time, not with the 20/20 vision of hindsight.” Kingsley, 135 S. Ct. at 2473. The standard must be applied under the particular facts and circumstances of each case. Id. Courts also must “account for the ‘legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,’ appropriately deferring to ‘policies and practices that in th[e] judgment’ of jail officials ‘are needed to preserve internal order and discipline and to maintain institutional security.’” Id., quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979). “Courts must be mindful that these inquiries spring from constitutional

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requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” Bell, 441 U.S. at 539 (emphasis added).
The Sheriff’s extensive efforts to prevent the spread of coronavirus in the Jail began in January, a full two months before the first case was confirmed and nearly 10 weeks before this lawsuit was filed. The Sheriff’s Coronavirus Operation Plan and related protocols are all based on the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (CDC Guidance), issued by the Centers for Disease Control and Prevention, the leading authority on managing the coronavirus outbreak. In interpreting the Guidance, the Sheriff consulted with representatives of the CDC, who toured the Jail facility on April 17 (Dkt.70, ROA1920), CDPH and IDPH, Cermak, and a team of retained subject matter experts. Despite these and many other proactive efforts, the district court concluded that the Sheriff’s actions were objectively unreasonable, and he did not sustain his constitutional burden. However, the district court’s interpretation of the objective reasonableness standard is flawed, and its decision likely to be reversed on appeal.
Among other things, Plaintiffs alleged that the Sheriff must implement strict social distancing throughout the Jail at all times. As Plaintiffs acknowledge, the Sheriff made significant efforts to implement social distancing in the housing tiers to the maximum extent possible, as part of his overall efforts to contain the spread of the virus. He opened 4 previously-closed divisions of the Jail in mid-March to enable more social distancing. (Dkt.62-5, ROA1687). He also assisted various criminal justice stakeholders in obtaining court-ordered bond modifications for over 1,300 eligible
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detainees in an effort to reduce the Jail population. (Dkt.29-1, ROA377-79). Ultimately, the Sheriff was able to move nearly all detainees into single cells or in dorms occupied at 50% capacity or less to maximize social distancing. (Dkt.62-5, ROA1694-99).
However, due to physical and operational limitations at the Jail, the Sheriff is unable to implement strict social distancing in all housing tiers. Specifically, the Sheriff argued that it was not “feasible” to implement strict social distancing for certain detainee populations: (1) detainees in isolation, quarantine, or convalescent housing have restricted housing requirements because of their infection status; (2) detainees who are assigned to housing in the Residential Treatment Unit or the Cermak Urgent Care division of the Jail must remain in those housing areas physically equipped to manage their significant medical or mental health needs; and (3) detainees who might be at risk of suicide or self-harm if isolated in single-celled housing. (Dkt. 62, ROA1655-69). He also sought a security exception to allow double-celling for purposes of stabilizing a security disruption or fight. Nevertheless, it was objectively reasonable to comply with the CDC Guidance here, as with all other coronavirus policies at the Jail, by maximizing social distancing to the extent possible and relying on “feasibility exceptions” to accommodate a lack of physical space and staffing and operational considerations, based on the unique features of the Jail. (Dkt. 30-15, ROA704).
The district court disagreed. It held that the CDC Guidelines are an “important piece of evidence to consider” in assessing the Sheriff’s conduct, but are not dispositive of objective reasonableness. (Dkt.73, ROA1994-95). Accordingly, it held that the Sheriff’s conduct was not objectively reasonable here.
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As a remedy, the court ordered the Sheriff to implement social distancing in the housing tiers, except for: (1) detainees in isolation, quarantine, or convalescent tiers; (2) detainees assigned to RTU or Cermak specialized medical housing due to medical or mental health needs; and (3) detainees who might be at risk of suicide or self-harm isolated in a single cell. The court denied the Sheriff’s request for a security exception at the Jail. (Dkt.73, ROA1997-98).
In other words, after finding that the Sheriff was objectively unreasonable for relying on the CDC Guidance to implement social distancing as he did, the court enjoined the Sheriff to do precisely as he proposed. In doing so, the court necessarily negated the predicate constitutional violation that enabled it to grant relief. That is, if the challenged conduct becomes the court-ordered relief, then that conduct cannot be the basis for a constitutional violation. As a practical matter, where the Sheriff previously relied on his expertise and discretion to make housing assignments and had the flexibility to make adjustments as necessary, he is now bound by court order to make those previously-discretionary housing assignments, but cannot adjust them as necessary without running afoul of the injunction.
Certainly that cannot be the correct result. On the contrary, it is objectively reasonable for the Sheriff to rely on the CDC Guidance, including its “feasibility exceptions,” in implementing the social distancing policy. Not only did the district court implicitly reach that conclusion with its order on relief, this Court has previously acknowledged as much. In Carroll v. DeTella, 255 F.3d 470, 472-73 (7th Cir. 2001), this Court held that it is reasonable for a prison official to rely on standards that a
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government agency promulgates. “They can defer to the superior expertise of those authorities.” Id. In the specific context of the CDC, this Court has held that it was objectively reasonable for a prison to rely on and implement CDC recommendations in response to a suspected infectious disease outbreak. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Accordingly, the Sheriff is likely to establish success on the merits of the appeal based on the court’s improper application of the objective reasonableness standard.
II. Irreparable Harm to the Sheriff While the likelihood of the success on the merits of the appeal is unquestionably a factor is evaluating the need for a stay, it need not be controlling. The sliding scale approach permits the Court to weigh the likelihood of success on appeal with the relative degree of harm in the absence of a stay holistically. Yet here, the district court concluded that the Sheriff’s motion for stay was meritless without undertaking a meaningful analysis of the relative harms that would befall the Sheriff or Plaintiffs in the absence of an injunction. See Cavel International, 500 F.3d at 547. At most, the district court expressed skepticism that ordering the Sheriff to comply with an injunction that forces him to do what he already was doing could cause irreparable harm. (Dkt.109, ROA2983). On the contrary, this is perhaps the most invidious harm of all. As explained above, when the court enjoins the Sheriff to do precisely what he was doing, the court necessarily negates the supposed constitutional violation that was the predicate for the injunction. If the challenged conduct becomes

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the court-ordered relief, then that conduct cannot be the basis for a constitutional violation.
As the Fifth, Ninth, and Eleventh Circuits recently held, a mandatory injunction that restricts the Sheriff’s ability to perform the most critical aspects of jail management impermissibly elevates the district court to “super-warden,” in violation of longstanding federalism principles deeply rooted in United State Supreme Court precedent. The injunction essentially “transfers the power to administer the [Jail] in the midst of the pandemic from public officials to the district court.” Swain v. Junior, 2020 U.S. App. LEXIS 14301, *13 (11th Cir., May 5, 2020). It puts the Sheriff in the impossible position of choosing to violate the order to preserve order at the Jail, or run to court to get a “permission slip” to lawfully perform the most fundamental Jail operation functions, which really is no option at all when these decisions need to made in a splitsecond. The district court did not address the Sheriff’s arguments about the vital harm caused by the injunction as discussed in Swain, Valentine, or Roman. (Dkt.109, ROA2980).
There is no question that the coronavirus pandemic has had a profound impact on all aspects of society. Governments around the globe have struggled to find ways to respond to it. The Sheriff wisely enlisted public health experts at the federal, state, and local levels to assist in developing the appropriate response to the pandemic within the Jail, and did so well before the first case of coronavirus arrived there.
The Court’s injunction undermines this reasoned and thoughtful approach, and the expert recommendations that it produced. It puts the Court in a superior position to
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decide what should be done, what can be done, and what must be done under these circumstances. Cf. Bell, 441 U.S. at 539 (courts must defer to the sheriff’s discretion to operate the jail as he sees fit, “rather than a court’s idea of how best to operate a detention facility”). The Court’s order is particularly troubling because its duration is open-ended, which places the Sheriff in the unbounded threat of contempt while exercising his inherent discretion to safely operate the Jail. All of this amounts to an irreparable harm.
The United States Supreme Court has long recognized that courts must defer to the expertise of correctional officials to operate their jails as necessary to preserve safety and order, and be permitted to exercise their “substantial discretion to devise reasonable solutions” the problems they face. Florence v. Board of Chosen Freeholders, 566 U.S. 318, 326 (2012). This is even more critical in the context of a federal district court interfering in the operations of a county jail, given the primacy of a local government’s interest in operating its criminal justice system. Indeed, “it is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.” Woodford v. Ngo, 548 U.S. 81, 94 (2006).
The harm is no more evident than it was this past weekend. In the midst of the coronavirus pandemic, Chicago and suburban Cook County endured a period of extraordinary civil unrest, resulting in unanticipated widespread rioting and looting. It resulted in the arrest of more than 1,000 people, many of whom the Sheriff will be ordered to detain and obligated to house. Yet, the Sheriff is constrained by the
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injunction that requires him to implement strict social distancing in the housing tiers with limited exceptions that do not address this tension.
As the Sheriff cautioned in his May 1, 2020, Status Report, at some point, he will reach a “feasibility limit,” where he cannot house all of the detainees according to the district court’s aspirational, yet unmanageable, goals. That limit may arrive following an extraordinary situation like last weekend, or a more routine population spike following a particularly difficult day in the County. It may last a day, a week, or longer. But the Sheriff cannot refuse to accept custody of these individuals, and they come when they come. He does not have the luxury of constantly running back to court to get a “permission slip” to handle a situation that can, and should, be managed on the ground. In all likelihood, it would probably involve the needless exercise of the Sheriff proposing a solution to handle a population spike, and the court accepting it.
The district court, and Plaintiffs, repeatedly recognized the Sheriff’s extraordinary efforts to maximize social distancing by opening 5 new divisions of the Jail (another division opened last week), helping obtain release for 1,300 eligible detainees, and managing the housing tiers like a chess match. He has always acted “in good faith” in doing so, and well before this lawsuit was filed. There is no reason to believe that he would discontinue these efforts absent the injunction order. The Sheriff is implementing social distancing throughout the Jail. But only he is in a position to know when his staff, also not immune from the impacts of the pandemic, may safely manage these strict social distancing practices and when it may not, requiring exceptions to manage the security issues inherent in Jail operations. Notably, in these
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times of high emotion and frustration in the Jail, the court denied the Sheriff’s requested security exception.
On May 5, 2020, the Eleventh Circuit stayed enforcement of a similar mandatory injunction entered by the district court against the Miami-Dade Corrections and Rehabilitations Department, enjoining it to continue implementing the same hygienic, sanitization, and social distancing policies that the Sheriff was ordered to continue implementing here. The appellate court found that the injunction “transfer[red] the power to administer the [jail] in the midst of the pandemic from public officials to the district court.” Swain, 2020 U.S. App. LEXIS 14301, *13. The appellate court also found that “the injunction hamstrings [jail] officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic.” Id. at *13-14. The jail director must be permitted to “respond to the rapidly evolving circumstances on the ground without first seeking ‘a permission slip from the district court.’” Id. at *14, quoting Valentine v. Collier, 2020 U.S. App. LEXIS 12941, *9-10 (5th Cir., Apr. 22, 2020). Ultimately, the appellate court found that the district court elevating itself to the role of “superwarden” of the jail caused irreparable harm to the defendants. Id. at *13.
Swain followed from a decision by the Fifth Circuit just two weeks earlier in Valentine v. Collier, which also stayed a mandatory injunction that would require the Texas Department of Criminal Justice (“TDCJ”) to enact a number of measures to control the spread of coronavirus. In addition to the shared reasoning in Swain as to the district court’s intrusion upon the corrections officials’ role, the Valentine court also held
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that the district court impermissibly enjoined the TDCJ to follow its own laws and procedures. Valentine, 2020 U.S. App. LEXIS 12941, *9. The terms of the injunction “largely overlap[ped] with the TDCJ’s COVID-19 policy requirements and recommendations,” and in the district court’s mind, that “promoted compliance” with those policies. However, an order enjoining a state actor to follow its own laws and policies is prohibited under the eleventh amendment. Id., citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 (1984).
Moreover, the district court erred in imposing “extra measures” on the TDCJ, beyond what is required by the CDC Guidance, when there was no support for the conclusion that the Guidance was not constitutionally adequate. Id.; Roman v. Wolf, 2020 U.S. App. LEXIS 14331, *4 (9th Cir., May 5, 2020) (Collins, J., concurring in part and dissenting in part) (the district court cannot disregard the CDC’s acknowledgement that the Guidance may be adapted to suit a particular facility’s physical or operational limitations, and proposes reasonable alternatives). Indeed, the appellate court explained that the TDCJ’s “ability to continue to adjust its policies is significantly hampered by the preliminary injunction, which locks in place a set of policies for a crisis that defies fixed approaches.” Id. at *13. The appellate court found that the TDCJ would be irreparably harmed absent a stay of the injunction because it could not respond to the COVID-19 threat without first getting “a permission slip from the district court.” Id.
Here, the court’s preliminary injunction order is impermissible on all of these grounds. From the beginning, the Sheriff consulted with leading public health experts to ensure the coronavirus response followed the advice of public health officials, while
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also recognizing the practical realities of operating the Jail. If he is forced to weigh the threat of contempt for possibly violating a term of the injunction while making the daily decisions necessary to safely operate the Jail, the Sheriff will suffer irreparable harm. For example, the Sheriff and his partners must be able to adjust the policies in place at the Jail as the CDC recommendations change, as in the case of changes to the testing protocols. Here, the Court sought to fashion guidelines for social distancing it felt was appropriate, not what was actually feasible in the Sheriff’s judgment. While the district court nodded to the complexity of jail operations generally and the difficulty of managing the Jail during a global pandemic, those words ring hollow when it imposed obligations on the Sheriff that add to these difficulties exponentially. Staffing, detainee conduct, population fluctuation, and even the unforeseeable circumstances like the events of last weekend have a pervasive impact on Jail operations, and the Sheriff must retain the discretion and flexibility to manage those impacts without seeking a “permission slip” from the court.
III. Plaintiffs Will Not Be Harmed in the Absence of a Stay and the Balance of Harms Favors the Sheriff
Plaintiffs will not be irreparably harmed if the injunction is stayed. The question is not whether COVID-19 poses a harm, but whether Plaintiffs have shown that they will suffer irreparable harm in the absence of the injunction. Nevertheless, it is important to highlight that the Sheriff’s policies have dramatically reduced the risk of infection in the Jail. The fourteen-day average COVID-testing positivity rate is now 3% of those tested over the past 14 days ending June 3—nearly one-quarter of the rate in

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the surrounding community.3 This metric represents the ratio of positive cases to the total number of tests administered to the population. Under World Health Organization (WHO) standards, the Sheriff has more than “flattened the curve” inside the Jail; the virus is at the critical containment rate of less than 5% over 14 days.4 (Exh. B, Test Positivity Rate Report, June 4, 2020).5 This achievement is noteworthy in and of itself, and particularly so in a congregate setting like the Jail.
In a recent joint press release issued with Cermak, the Sheriff and his team also documented that the number of new COVID-19 cases at the Jail has been decreasing steadily over the past four weeks. (Dkt.98-2, ROA2882). As of yesterday, there were 4,528 detainees in the Jail, 37 of whom are currently COVID-positive, and a total of 2,452 detainees who have tested negative.6 Notably, the vast majority of the 37 positive cases are detainees entering the facility from the community during intake, and not spread of the virus among the existing Jail population. (Dkt.98-2, ROA2992). The district court did not mention these impressive data in its order denying the stay, let alone consider them in balancing the potential harm of lifting the injunction.

3 https://www.dph.illinois.gov/restore 4 Johns Hopkins University Coronavirus Resource Center, https://coronavirus.jhu.edu/testing/testing-positivity (last visited June 3, 2020). 5 This report is an updated version of the document filed in support of the motion for stay in the district court.
6 https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/; https://www.cookcountysheriff.org/wpcontent/uploads/2020/06/CCSO_BIU_CommunicationsCCDOC_v1_2020_06_04.pdf (last visited June 5, 2020).
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Make no mistake: these successes are a result of the testing and isolation policies in effect at the Jail since March, not the injunction, which essentially sought documentation of existing sanitation and hygienic procedures and to maximize social distancing wherever possible. (See, e.g., Dkt. 109, ROA 2980). While the latter practices have always been part of the Sheriff’s Coronavirus Operation Plan and have long been in practice, they are not the driving force behind containment. Since January 24, new detainees entering the Jail have been screened for coronavirus symptoms. On March 14, new detainees were being quarantined at intake before they could enter the general population. On March 20, Cermak was approved to administer testing in a non-hospital setting, and began testing immediately on approval. On March 23, COVID-positive detainees began being housed in medical isolation and the remainder of the detainee’s tier was quarantined. On March 26, the Sheriff began converting every available cell from double-celled to single-celled, and moved detainees to dormitories in previouslyclosed divisions of the Jail, to enhance social distancing strategies. (Dkt.87-1, ROA266879). Plaintiffs filed their Complaint on April 3. The injunction was entered on April 27.
There has never been an allegation, let alone evidence, that the Sheriff is likely to stop the practices that have led to these results, and any suggestion to the contrary is purely speculative. As the district court has repeatedly recognized, “it cannot reasonably be disputed” that the Sheriff has undertaken “significant and impressive” efforts to control the spread of the virus in the Jail, and that he has always “acted in good faith, with the goal of protecting the people in his custody” in doing so. (Dkt. 73, ROA 1989). To now casually conclude, as the district court did, that staying the
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injunction would “permit the Sheriff to lift [coronavirus-protective] measures” and “place the health of detained persons at serious risk,” absent any actual allegation or evidence, is unfounded. (Dkt. 109, ROA 2985).
Given the impressive data showing the success of the Sheriff’s policies, there is no likelihood that he will discontinue these procedures and jeopardize these highly successful results. The Sheriff has invested heavily in these procedures, which were well-researched, well-designed, and well-supported in consultation with public health agencies and retained experts and grounded in the CDC Guidance. The Sheriff has and will continue “in good faith” to implement these policies, as he has done for months. Given the success of the Sheriff’s policies, and the confidence that they will continue to be implemented, the balance of harms weighs in favor of a stay to release the Sheriff from the bonds of the Court’s oversight as “super-warden.”
As to the public’s interest, where the government is the party opposing the preliminary injunction, its interest and harm merge with the public interest. Nken v. Holder, 556 U.S. 418, 435 (2009). As discussed above, the Sheriff and the public interest will suffer irreparable harm if he must compromise the safe and efficient operation of the Jail to comply with ill-informed, if well-meaning, obligations under threat of contempt. Thus, it is in the best interest of all to stay enforcement of the injunction pending appeal.

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CONCLUSION For the foregoing reasons, Sheriff Dart respectfully requests that the Court stay enforcement of the preliminary injunction and all other discovery pending resolution of the appeal from the preliminary injunction order.

Robert T. Shannon James M. Lydon Gretchen Harris Sperry Lari Dierks HINSHAW & CULBERTSON LLP 151 N. Franklin Street, Suite 2500 Chicago, Illinois 60601 gsperry@hinshawlaw.com

By: /s/ Gretchen Harris Sperry One of the attorneys for Defendant Thomas J. Dart, Sheriff of Cook County

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CERTIFICATE OF COMPLIANCE
This document complies with the word limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this document contains 4,837 words.

CERTIFICATE OF SERVICE
I certify that on June 5, 2020, the foregoing document was filed electronically using the court's CMF/ECF system, which will cause service to be made on all counsel of record.

/s/ Gretchen Harris Sperry

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COVID-19 Test Positivity Rate in CCDOC To: CCSO Executive Staff Date: June 5, 2020 THIS IS A PRELIMINARY ANALYSIS – DELIBERATIVE PROCESS PRIVILEGED
Objective: Defined as the ratio of positive cases to total tests within a population, test positivity rate (TPR) serves as a useful tool to identify the degree of spread for highly contagious diseases such as malaria. Due to limited COVID-19 testing capacity, researchers have suggested using TPR as a proxy to track the spread of the virus.
This memo provides a daily summary of COVID-19 tests and the test positivity rate for detainees in the Cook County Department of Corrections (CCDOC) from March 20, 2020 to June 3, 2020. It then compares the TPR before and after asymptomatic testing was introduced on April 16, 2020. TPR of detainees is calculated by dividing the number of detainees who tested positive over the total number of tests performed each day.
Analysis: Table 1 shows the daily number of tests, positive cases, and the test positivity rate for detainees between March 20, 2020 and June 3, 2020. The dates for the number of positive cases are based on their test dates. For instance, if a detainee was tested on 3/20/2020 and tested positive on 3/23/2020, this positive case was categorized under 3/20/2020.

Table 1: Daily Number of Tests and Positive Cases

Test Date
3/20/2020 3/21/2020 3/22/2020 3/23/2020 3/24/2020 3/25/2020 3/26/2020 3/27/2020 3/28/2020 3/29/2020 3/30/2020 3/31/2020 4/1/2020 4/2/2020 4/3/2020 4/4/2020 4/5/2020

Number of Tests 5 7 9 8 22 24 27 18 50 7 23 19 23 21 11 11 6

Number of Positive Cases 5 5 8 7 21 21 24 18 48 6 21 17 21 14 11 8 6

Test Positivity Rate 100% 71% 89% 88% 95% 88% 89% 100% 96% 86% 91% 89% 91% 67% 100% 73% 100%

1

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4/6/2020

22

4/7/2020

37

4/8/2020

23

4/9/2020

17

4/10/2020

14

4/11/2020

18

4/12/2020

11

4/13/2020

17

4/14/2020

13

4/15/2020

13

4/16/2020

17

4/17/2020

66

4/18/2020

7

4/19/2020

12

4/20/2020

80

4/21/2020

82

4/22/2020

40

4/23/2020

60

4/24/2020

72

4/25/2020

68

4/26/2020

46

4/27/2020

57

4/28/2020

67

4/29/2020

31

4/30/2020

39

5/1/2020

87

5/2/2020

46

5/3/2020

51

5/4/2020

68

5/5/2020

96

5/6/2020

51

5/7/2020

40

5/8/2020

36

5/9/2020

40

5/10/2020

35

5/11/2020

34

5/12/2020

35

5/13/2020

88

5/14/2020

44

5/15/2020

46

5/16/2020

42

5/17/2020

72

5/18/2020

32

5/19/2020

53

19 32 21 17 11 17 10 12 11 11 7 43 6 7 36 25 7 12 5 21 1 9 10 7 13 14 13 3 2 17 8 4 1 3 1 2 0 3 1 1 4 2 0 1
2

86% 86% 91% 100% 79% 94% 91% 71% 85% 85% 41% 65% 86% 58% 45% 30% 18% 20% 7% 32% 2% 16% 15% 23% 33% 16% 28% 6% 3% 18% 16% 10% 3% 8% 3% 6% 0% 3% 2% 2% 10% 3% 0% 2%

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5/20/2020

47

4

5/21/2020

78

1

5/22/2020

58

3

5/23/2020

85

0

5/24/2020

95

6

5/25/2020

80

5

5/26/2020

85

1

5/27/2020

59

0

5/28/2020

71

7

5/29/2020

78

4

5/30/2020

62

0

5/31/2020

69

1

6/1/2020

101

0

6/2/2020

115

5

6/3/2020

109

5

TOTAL

3,408

753

9% 1% 5% 0% 6% 6% 1% 0% 10% 5% 0% 1% 0% 4% 5% 22%

Figure 1 graphs the daily test positivity rate. It does not label test positivity rate of 0% and 100% for a simpler display of the data points.

Figure 1: Change in Test Positivity Rate (March 20 – June 3, 2020)
Asymptomatic Test Begins

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Table 2 compares the average test positivity rate of before and after the introduction of asymptomatic testing, which began on April 16, 2020. As the number of COVID-19 tests increased after April 16, 2020, the average test positivity rate decreased from 89% to 11%.

Table 2: Test Positivity Rate Before and After Asymptomatic Testing

Before (March 20 – April 15, 2020) After (April 16 – June 3, 2020)

Number of Tests
476 2,932

Number of Positive Cases
422 331

Test Positivity Rate
89% 11%

4

Case: 1:20-cv-02134 Document #: 109 Filed: 05/29/20 Page 1 of 12 PageID #:2976

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, individually and on

)

behalf of a class of similarly situated

)

persons; and JUDIA JACKSON, as next )

friend of KENNETH FOSTER, individually )

and on behalf of a class of similarly

)

situated persons,

)

)

Plaintiffs-Petitioners,

)

)

vs.

)

)

THOMAS DART,

)

)

Defendant-Respondent.

)

Case No. 20 C 2134

MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge, as emergency judge:
On April 27, 2020, the Court granted in part the plaintiffs' motion for a preliminary injunction in this class action lawsuit regarding conditions at the Cook County Jail, ordering some of the relief sought by the plaintiffs but denying a number of their requests. See Mays v. Dart, No. 20 C 2134, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020) ("Mays 2"). The preliminary injunction tracked a temporary restraining order entered about three weeks earlier but included one additional requirement. See Mays v. Dart, No. 20 C 2134, 2020 WL 1812381 (N.D. Ill. Apr. 9, 2020) ("Mays 1").
The preliminary injunction also directed the Sheriff of Cook County—the defendant in the case—to submit a report regarding compliance. The Sheriff did this on May 1, 2020. On May 6, 2020, the plaintiffs filed a response to the Sheriff's report in which they sought expedited discovery, contending they needed this to determine

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compliance with the preliminary injunction. On May 11, the Sheriff objected and moved to strike the request for expedited discovery. Also on May 11, the Sheriff filed a notice of appeal from the preliminary injunction. Eight days after that, on May 19—a little over three weeks after entry of the preliminary injunction—the Sheriff moved for a stay pending appeal and repeated his request to strike the plaintiffs' proposed expedited discovery requests. At the request of the judge assigned to the case, the undersigned judge, acting as emergency judge, directed the plaintiffs to respond to the stay motion the next day and heard argument on the Sheriff's stay motion as well as the plaintiffs' expedited discovery request on May 21, 2020.
For the reasons stated below, the Court denies the Sheriff's motion to stay the preliminary injunction pending appeal and also denies the plaintiffs' request for expedited discovery.
Discussion Familiarity with the Court's temporary restraining order and preliminary injunction decisions is assumed. The plaintiffs in this case contend that the Sheriff is violating the Fourteenth Amendment due process rights of persons detained at the Jail by failing to provide them with reasonably safe living conditions in the face of the coronavirus pandemic. In their motion for a preliminary injunction (as in their TRO motion), the plaintiffs sought wide-ranging relief. This included mandatory social distancing of detained persons throughout the Jail—relief that would amount to universal singlecelling and then some; transfer of detained persons to electronic home monitoring; and convening a three-judge court under the Prison Litigation Reform Act to consider the release of detained persons. The plaintiffs also sought measures to identify and

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separate medically vulnerable detained persons and to require coronavirus testing, cleaning of Jail facilities, and provision of personal protective equipment.
After extensive briefing and hearings, the Court granted the plaintiffs' motions, but only in part. The Court entered a TRO including certain requirements on April 9 and a preliminary injunction with those same requirements plus one more on April 27. On both occasions, however, the Court overruled the plaintiffs' requests for sweeping remedies, declining their requests to release detainees with medical vulnerabilities, mandate full "social distancing" throughout the jail, and convene a three-judge court to prisoner releases.
The Sheriff has moved to stay the preliminary injunction pending appeal, and plaintiffs have moved for expedited discovery to assess the Sheriff's compliance with the injunction. The Court addresses each request in turn. 1. Stay pending appeal
In deciding whether to stay an order pending appeal, a court considers whether the movant "has made a strong showing that he is likely to succeed on the merits"; whether the movant will be irreparably injured absent a stay; whether a stay "will substantially injure the other parties interested in the proceeding"; and "where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
a. Movant's likelihood of success The Sheriff has not made a "strong showing" of likelihood of success. The record before the Court when it issued the preliminary injunction reflected that the people detained at the Jail faced a real and persistent danger to their health. As of April 9, when the Court issued a temporary restraining order that embodied most of the relief

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extended via the preliminary injunction, the Jail had the largest single concentration of confirmed coronavirus infections in the entire country. See Mays 1, 2020 WL 1812381, at *2. At the time of the preliminary injunction, although the number of positive-tested detained persons in isolation had declined, the overall positive test numbers were continuing to increase (350 on April 17 vs. 289 on April 10), indicating that the virus was continuing to spread within the Jail. See Def.'s Resp. to Pls.' Mot. for Prelim. Inj. at 2-3. Before the issuance of the TRO and the preliminary injunction, the Sheriff had, undeniably, taken steps to attempt to stem the spread of the virus. But the Constitution does not say that so long as a jailer does something, he complies with constitutional obligations. Rather, if jailer does not take objectively reasonable steps to protect detained persons from a known and serious risk, he violates the Fourteenth Amendment. The Court concluded that plaintiffs had established a reasonable likelihood of showing the objective unreasonableness of some of the Sheriff's actions or inaction.
In seeking a stay of the preliminary injunction, the Sheriff contends that he has consistently acted in good faith, and the Court does not dispute this. But the Sheriff's intent was not and is not the issue. The law in this Circuit is clear that conditions of confinement cases involving pretrial detainees are judged by a standard of objective reasonableness, not by assessing whether the Sheriff had good or bad intentions. See, e.g., Hardeman v. Curran, 933 F.3d 816, 823-24 (7th Cir. 2019). The Court notes that in this regard, this case is nothing like two cases cited by the Sheriff in his motion to stay, in which appellate courts granted stays of coronavirus-related preliminary injunctions. See Swain v. Junior, 958 F.3d 1051 (11th Cir. 2020); Valentine v. Collier,

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956 F.3d 797 (11th Cir. 2020). The courts in those cases found a significant likelihood of success on the part of the jailer largely due to the absence of evidence that the jailer exhibited the intent required by those Circuits, specifically, deliberate indifference. That is not the standard that applies in this Circuit or in this case. The Sheriff may not have exhibited deliberate indifference, but that is not the same as saying that his actions or inaction were objectively reasonable.
The Sheriff also contends that his approach has worked, citing decreases in the incidence of new coronavirus cases at the Jail over the last several weeks. There are at least two problems with this argument. First, it amounts to 20/20 hindsight. The Court ruled, and had to rule, based on the record as it was presented at the time, not based on how things turned out several weeks later. Second, the TRO and preliminary injunction directed the Sheriff to take steps he was not already taking or was not taking in an effective way. In particular, the Court's orders directed the Sheriff to do the following:
• cease the use of crowded "bullpens" holding multiple detained persons at intake; • (on the preliminary injunction) enforce social distancing in most of the Jail; • obtain and distribute facemasks to persons exposed to infected or quarantined
detainees; • establish a Sheriff's Office policy to implement prompt testing for detained
persons exhibiting symptoms of coronavirus disease; • enable actual, not just theoretical, access to adequate sanitation supplies; and • actually enforce cleaning and sanitation requirements in areas of the Jail
accessed in common, such as showers, bathrooms, and day rooms.

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The Sheriff's argument about positive results does not account for the very real possibility that the measures ordered by the Court at the TRO and preliminary injunction stage contributed to those results.
On the merits, the Sheriff's primary argument appears to be that guidelines for prison and jail administrators issued by the Centers for Disease Control are determinative of the question of objective reasonableness and that he has consistently complied with them. This contention likewise has at least two flaws. First, the Sheriff has cited no authority establishing that an externally-created set of guidelines like these amounts to a constitutional measuring stick. Rather, the law in this Circuit is that such guidelines are relevant in determining objective reasonableness, but not determinative. See, e.g., United States v. Brown, 871 F.3d 532, 538 (7th Cir. 2017); Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 1996). In the respect most pertinent to this case, the CDC guidelines set a feasibility or practicality limitation that, the Court concluded, could not be determinative of the constitutional question presented by plaintiffs' claims. Second, and perhaps just as importantly, the record established that the Jail had not yet reached feasibility limitations regarding the spacing of detained persons: the Jail's executive director so testified at the preliminary injunction hearing, indicating that the Jail had additional space that could be used to further spread out detainees. Thus the record reflected that the Sheriff's practices in this particular respect did not measure up to the CDC guidelines.
Next, contrary to the Sheriff's contention, the Court did not fail to give appropriate deference to the Sheriff's expertise or his interest in appropriate management of the Jail. To the contrary, the Court did exactly what the law requires. See Mays 2, 2020

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WL 1987007, at *27 (citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2073 (2015); Bell v. Wolfish, 441 U.S. 520, 547 (1979)). Indeed, the Court rejected, both at the TRO and preliminary injunction stages, much—in fact most—of the relief sought by plaintiffs. Specifically, the Court declined to:
• order the Sheriff to identify and triage detained persons believed to be medically vulnerable;
• relocate vulnerable detainees to custodial (and perhaps non-custodial) locations other than the Jail;
• mandate full social distancing throughout the Jail; • distribute personal protective equipment to every detained person; • institute a robust program of coronavirus testing of all detainees throughout the
Jail; and • convene a three-judge court to consider releasing detained persons from the Jail. On each of these points, the Court either found that plaintiffs were unlikely to be able to show the Sheriff's actions were objectively unreasonable, or deferred to the Sheriff's expertise and discretion, or both.
One certainly understand why, as a strategic matter, the Sheriff's motion for a stay omits any reference to what the Court did not order. But a look at the full picture confirms that the Court followed a careful and restrained approach, honoring both the constitutional entitlement of detained persons to reasonable measures to protect their physical health and the Sheriff's legitimate interest in maintaining security, preserving order, and making discretionary determinations regarding allocation of resources. The law is clear that a court must consider both. The Supreme Court has stated that

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although courts must be "sensitive to . . . the need for deference to experienced and expert prison administrators," they "nevertheless must not shrink from their obligation to “enforce the constitutional rights of all persons, including prisoners. Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration." Brown v. Plata, 563 U.S. 492, 511 (2011) (internal quotation marks and citation omitted).
In sum, the Court concludes that the Sheriff has not shown, let along "strongly" shown, that he is likely to succeed on appeal.
b. Irreparable injury to movant The Sheriff's argument regarding irreparable injury likewise falls short. In fact, the Sheriff's position on this point is internally inconsistent. One the one hand, he contends that the Court has "undermine[d]" his "thoughtful and reasonable" approach to the coronavirus pandemic as it affects the Jail. Def.'s Mot. to Stay at 13. On the other hand, he contends that the Court has essentially ordered him to do what he was already doing, id. at 12, thereby inserting itself as an unnecessary watchdog. Both cannot be true at the same time. The fact is that the Court has done neither. The Court observes, though, that it is difficult to see how the Sheriff will experience "irreparable harm" if he has to comply with the injunction by doing what he says he would do anyway. The Sheriff says that the additional burden imposed by court oversight amounts to irreparable harm. The upshot of this argument, however, is that any party appealing an injunction would automatically meet the irreparable harm requirement for a stay— because an injunction is, after all, an injunction. This cannot be the case. That aside, the Court has not imposed any monitoring requirements beyond the initial compliance

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report, which the Sheriff filed over three weeks ago and thus which cannot possibly constitute irreparable harm. The Court declined plaintiffs' requests to appoint outside monitors and to permit inspections of the Jail's facilities.
Finally, at argument, the Sheriff's counsel seemed to suggest that the fact that the plaintiffs had served discovery requests and were thereby trying to, in effect, stick their noses into his operations and decision-making amounts to irreparable harm. This cannot be the case either. Again, as the Sheriff's counsel conceded, a case does not end with a preliminary injunction; it is commonplace for discovery to proceed in a lawsuit even after a preliminary injunction is issued. So dealing with discovery requests cannot possibly constitute irreparable harm either. (Regardless, as discussed below, the Court is relieving the Sheriff of the burden of responding to plaintiffs' discovery requests at this time).
Last but not least on the question of irreparable harm, it is noteworthy that the Sheriff waited more than three weeks after the issuance of the preliminary injunction before moving for a stay. This cuts against the contention that the Sheriff has experienced, or will experience, much harm at all, let alone harm appropriately considered to be irreparable.1

1 It may be that the Sheriff's real concern involves the potential for future problems should increased population at the Jail limit his ability to comply with social distancing requirements. On this, though, it is worth noting that the Court specifically invited the Sheriff to make a request to include certain at-risk detainees among those who may be appropriately detained in group housing, see Mays 2, 2020 WL 1987007, at *34, and to return to court to loosen the preliminary injunction's requirements if changed circumstances call for it, see id. at *37. The Sheriff has not taken the Court up on either invitation.
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c. Injury to parties other than movant The next question is whether a stay will risk substantial injury to other interested parties, specifically to the plaintiff class. This is essentially the flip side of the point just addressed. The Sheriff did not voluntarily take all of the coronavirus-protective measures that he cites. Some were done pursuant to court order—either the TRO, or the preliminary injunction, or both. Staying the injunction would permit the Sheriff to lift measures and thereby again place the health of detained persons at serious risk. That risk cannot be discounted based on the Sheriff's assurances alone. Again, a number of the measures he took were instituted only after the Court's TRO or preliminary injunction. See Mays 2, 2020 WL 1987007, at *29. The Court finds that there is at least some risk of substantial injury to detained persons if the preliminary injunction is stayed. d. The public interest On the question of the public interest, the Sheriff cites Nken v. Holder, 556 U.S. 418, 435 (2009), for the proposition that the Sheriff, as a public official, effectively embodies the public interest. See Def.'s Mot. to Stay at 19. It is not quite that simple. Here the Sheriff is charged with protecting not just the public at large, but also the detained persons placed in his custody, all or nearly all of whom have family members on the outside. Their interests are part of the public interest. And the detained persons' constitutional rights—and their health and lives—are at stake. It is anything but clear that the Sheriff can claim the public interest mantle entirely for himself. For the reasons described, the Court concludes that the Sheriff has not met the requirements for a stay of the preliminary injunction. The Court therefore denies his motion to stay.

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2. Plaintiffs' request for expedited discovery As the Court indicated earlier, and as the Sheriff's counsel conceded at
argument, the appeal of a preliminary injunction does not require the rest of the case to come to a halt in the district court. Put another way, a preliminary injunction is not the final resolution of a case. It follows that a party who is preliminarily enjoined is not relieved of the obligation to provide discovery in response to appropriate requests. In addition, as the Sheriff likewise conceded at argument, an appeal does not prevent the district court from enforcing a preliminary injunction. See, e.g., Union Oil Co. of Calif. v. Leavell, 220 F.3d 562, 565-66 (7th Cir. 2000).
Plaintiffs' discovery requests, they say, are aimed at determining compliance. This is plainly not the case for all of them; some involve matters beyond the relief the Court ordered in the injunction. But this does not make those particular requests inappropriate. They are within the realm of permissible discovery for the ongoing litigation of the case—which, again, does not end with the issuance of a preliminary injunction. The same is true of the plaintiffs' other requests; all of them appear to be within the scope of permissible discovery under Federal Rule of Civil Procedure 26(b)(1).
Defendants say that the Court should, and perhaps must, put the brakes on the plaintiffs' requested discovery because of the appeal. The question of whether and to what extent plaintiffs may engage in discovery, however, is not an emergency issue within the scope of the undersigned judge's role as emergency judge. The only aspect that is urgent is the request for expedited discovery; that is what the undersigned judge took on when requested by the assigned judge to handle the motions for a stay and for

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expedited discovery. All of that aside, the Court concludes that the expedited discovery requests have
not been properly served. Under Federal Rule of Civil Procedure Rule 26(d), a party "may not seek discovery" before the parties have conferred under Rule 26(f) or unless authorized by the Rules, a stipulation, or a court order. None of this has happened in this case. In particular, at the time the discovery had been served there had been no Rule 26(f) conference.
For these reasons, the Court directs that the Sheriff need not answer plaintiffs' current discovery requests. At the conclusion of the oral argument on the present motions on May 21, the Court directed the parties to submit a proposed scheduling order to the assigned judge by June 2, 2020 and to conduct their Rule 26(f) conference before that. Plaintiffs may re-serve their discovery requests following the Rule 26(f) conference and may, if appropriate, move the assigned judge to permit expedited discovery.
Conclusion For the reasons stated above, the Court denies defendant's motion to stay the preliminary injunction pending appeal [dkt. no. 98] and denies plaintiffs' motion for expedited discovery [dkt. no. 85]. Date: May 29, 2020
________________________________ MATTHEW F. KENNELLY United States District Judge

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1

1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

2

EASTERN DIVISION

3

ANTHONY MAYS, Individually and

) Case No. 20 C 2134

4 on behalf of a class of

)

similarly situated persons, et

)

5 all right. .,

)

)

6

)

Plaintiffs, )

7

) Chicago, Illinois

vs.

) May 21, 2020

8

) 1:15 o'clock p.m.

COOK COUNTY SHERIFF THOMAS J. DART, )

9 Sheriff of Cook County,

)

)

10

Defendants. )

11

TRANSCRIPT OF PROCEEDINGS

12

BEFORE THE HONORABLE MATTHEW F. KENNELLY

13 APPEARANCES:
14

15 For the Plaintiffs: 16 17 18 19

MACARTHUR JUSTICE CENTER BY: MR. LOCKE E. BOWMAN, III
MS. ALEXA VAN BRUNT 375 E. Chicago Avenue Northwestern University School of Law 357 East Chicago Avenue Chicago, IL 60611 (312) 503-0844

20

LOEVY & LOEVY

BY: MS. SARAH COPELAND GRADY

21

311 N. Aberdeen Street

3rd Floor

22

Chicago, IL 60607

(312) 243-5900

23

24

25

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2

1 APPEARANCES: (Continued)

2

3 For the Defendants: 4 5 6

HINSHAW & CULBERTSON, LLP BY: MR. JAMES MATTHIAS LYDON
MR. ROBERT THOMAS SHANNON MS. GRETCHEN HARRIS SPERRY 151 N. Franklin Street, Suite 2500 Chicago, IL 60606 (312) 704-3000

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22 Court Reporter:
23 24 25

MS. CAROLYN R. COX, CSR, RPR, CRR, FCRR Official Court Reporter 219 South Dearborn Street, Suite 2102 Chicago, Illinois 60604 (312) 435-5639

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3

1 (The following proceedings were had telephonically and by

2 video:)

3

THE CLERK: 20 C 2134, Anthony Mays v. Thomas Dart.

4

THE COURT: All right. So I think it will be helpful

5 if maybe just one of the lawyers for the plaintiff can give

6 the names of all the lawyers who are on the video for the

7 plaintiffs.

8

MS. VAN BRUNT: Sure, your Honor. I am happy to do

9 that.

10

This is Alexa Van Brunt, V-a-n B-r-u-n-t. Also on

11 for plaintiffs are Sarah Grady, G-r-a-d-y, and Locke Bowman,

12 B-o-w-m-a-n.

13

THE COURT: And defense counsel? You have to unmute.

14

MR. SHANNON: Your Honor, Robert Shannon on behalf of

15 defendant. With me is Jim Lydon, our paralegal, Lisa Plaza.

16

Your Honor, I also wanted to let you know that Ms.

17 Sperry is leading a panel presentation and she will be here

18 stepping in at 1:30. We did not want to have to continue or

19 delay the start of this, but it is my hope pending any

20 (technical difficulties).

21

THE COURT REPORTER: You're breaking up.

22

THE COURT: So here's the problem.

23

You know, these video conferencing things, and maybe

24 we don't have the best one in the world, they don't really

25 expect that people are going to be using them over

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4

1 speakerphones like you're doing. So we are getting -- I am

2 hearing basically about a third of what you are saying, and

3 the same is true of the court reporter. I can tell from her

4 body language.

5

And so I didn't get -- I heard you say something

6 about 1:30, but that's about all I could hear.

7

MR. SHANNON: Can you hear me better now, your Honor?

8

THE COURT: That's less feedback than the

9 speakerphone was. Okay.

10

MR. SHANNON: Should I identify counsel for the

11 defendants again?

12

THE COURT: Please do.

13

MR. SHANNON: Robert Shannon on behalf of defendant.

14 With me is Jim Lydon. In the room is our paralegal, Lisa

15 Plaza.

16

Ms. Gretchen Sperry is completing a panel, a CLE

17 presentation, and she will be joining the room at

18 approximately 1:30.

19

THE COURT: Ah, that was the 1:30 thing. I've got to

20 step away and grab something.

21

So I actually -- so I've read everything that was

22 submitted. Sorry. This is the clerk calling me. I have to

23 take this.

24

Sorry. Give me a second.

25 (Brief interruption.)

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5

1

THE COURT: Okay. So I actually want to start off

2 with some questions. And I am going to start off with

3 questions I have starting off with for defense counsel.

4

Does -- if the judge issues a preliminary injunction

5 and the preliminary injunction gets appealed, does that

6 deprive the district court of jurisdiction to deal with the

7 rest of the case?

8

That's the question.

9

MR. SHANNON: This is Robert Shannon, your Honor.

10

THE COURT: That's all coming from you guys. I'm

11 just telling you. All that whistling and feedback, all this

12 feedback is coming from you guys.

13

You would be way better off doing this in front of

14 your own screen at a computer somewhere.

15 (Technical difficulties.)

16

THE COURT: Did you hear my question, Mr. Shannon?

17

MR. SHANNON: Yes, your first one or the second one,

18 Judge?

19

THE COURT: Well, the second one is why the heck

20 aren't you doing this off of a computer?

21

My first question is does an appeal -- if the judge

22 issues a preliminary injunction and the party who has been

23 enjoined appeals the preliminary injunction, does that deprive

24 the district judge of jurisdiction over the rest of the case?

25 (Technical difficulties.)

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6

1

THE COURT: Okay. So we are going to -- you know,

2 this is all coming from the conference people.

3

MR. SHANNON: Judge, we are going to call. Give us

4 one moment.

5 (Brief interruption.)

6

THE COURT: I am just waiting for some sort of a

7 thumb's up or something from the Hinshaw table so that you've

8 got your act together so we can hear you.

9

MR. SHANNON: Your Honor, is this any better?

10

THE COURT: That's better. On that one, I am only

11 hearing it twice, as opposed to ten times, so I guess that's

12 better.

13

MR. SHANNON: Okay. Now we should be fine. Is that

14 correct?

15

THE COURT: Yes, now you're fine. Now you're fine.

16

Okay. Answer my question, please.

17

MR. SHANNON: Can you hear me, your Honor?

18

Okay. Thumbs up.

19

Okay. Your Honor, I may, with your Honor's

20 permission, ask Ms. Sperry to expand on this when she joins,

21 but I think the answer to your question is that the district

22 court does not lose jurisdiction for the permanent injunction,

23 but loses any issues involved in the appeal.

24

Here what is somewhat unique --

25

THE COURT: No, you just answered my question. No,

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7

1 stop.

2

So look, Mr. Shannon, with due respect, you just

3 wasted ten minutes of my time. Okay? So you answered my

4 question. Now I am going to ask another one. I will give you

5 a chance to say whatever you want to say in a minute. I have

6 got, like, 30 pages of briefs from you guys. I've got

7 questions. I am going to get them answered, and I am going to

8 get those questions answered and that's it.

9

So let's say a preliminary injunction gets appealed

10 and somebody wants to do discovery toward the question of

11 whether they should ask for a permanent injunction and, you

12 know, what they need to prove their claims.

13

Does the district judge have the authority to deal

14 with issues about that?

15

MR. SHANNON: Not if -- not if it is related to the

16 appeal on the preliminary injunction, your Honor.

17

THE COURT: So I'll just tell you that one of the --

18 one thing I can tell you is that there is no case that you've

19 cited -- there is no case that you've cited in any of your

20 materials that says anything close to that.

21

So what's your authority? What's the case that says

22 what you just told me?

23

And I'm going to tell you I've been a lawyer for 39

24 years, okay? Unless this has changed in the last two weeks,

25 what you just said is just wrong. So tell me the case that

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8

1 says it.

2

MR. SHANNON: It would only be in our brief, your

3 Honor, and I will have Ms. Sperry, when she arrives, respond

4 in any way that you are comfortable with, but I think what is

5 unique about this particular case is that the threshold issue

6 is that while plaintiffs may take the position that the

7 district court could retain jurisdiction over discovery,

8 quote/unquote discovery requests that were pending in advance

9 of the notice of appeal, that is not the case here because

10 those discovery requests, as we have set forth in our briefs,

11 were legally and procedurally defective.

12

THE COURT: Yeah, so the problem with what you just

13 said is that what that means, the upshot of that is that if a

14 preliminary injunction gets appealed, the case has to come to

15 a grinding halt, which is contrary to, like I said, the last

16 39 years I've been practicing law, unless something has

17 changed in the past couple of weeks.

18

So let's just talk about an ordinary commercial,

19 okay? Let's say you have a standard agreement not to compete.

20 Plaintiff comes in and says the employee left, he's violating

21 the covenant not to compete, he's soliciting customers, he's

22 doing this, he's doing that. The judge issues a preliminary

23 injunction. The employee who is a defendant in the case

24 appeals the preliminary injunction. Okay. So there is a

25 preliminary injunction in place, but that's not the end of the

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9

1 case because a preliminary injunction is, by definition,

2 preliminary.

3

And so now the plaintiff says, okay, I want to get

4 more details about this. I want to find out who all the

5 customers are that this person dealt with. I want to know

6 what he said to them. I want to know, you know, what sales he

7 made to them. So they start sending out discovery requests.

8

From what you just told me, they can't do that and

9 the district judge would have to prevent them from doing that,

10 which is just absolute poppycock, and that's about the nicest

11 way I can put it.

12

So what's the case that says that?

13

MR. SHANNON: Well, your Honor, they're asking for

14 emergency discovery, and as we've identified under an

15 effective procedural mechanism, and I guess it feeds into the

16 elements on the motion to stay, right? I mean, that would be

17 the analysis.

18

THE COURT: Okay. So just as a person who makes

19 decisions for a living, just a little practice point here.

20 When somebody doesn't answer questions, that -- and they don't

21 do it after the second try, that usually tells the

22 decisionmaker that a truthful answer would not be good for the

23 person who is answering the question.

24

MR. SHANNON: Your Honor, I am not --

25

THE COURT: So let me get to my next question.

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1

Does an appeal from a preliminary injunction preclude

2 the district court from enforcing the preliminary injunction

3 if it's not stayed? Yes or no?

4

MR. SHANNON: Well, I would say, your Honor, only if

5 a proper motion is filed, and that has not occurred. That was

6 one of our points. If there was a rule to --

7

THE COURT: Don't add facts to my question. I'm

8 asking the question in the way I'm asking it because that's

9 the way I want it answered.

10

Does an appeal of a preliminary injunction that

11 hasn't been stayed preclude the district court from enforcing

12 it?

13

MR. SHANNON: Your Honor, what we argue in our brief

14 is that it's -- the district court is divested of jurisdiction

15 while the matter is up on appeal.

16

THE COURT: Okay. Is that a yes to my question, or

17 is it a no?

18

MR. SHANNON: I'm losing track of the double

19 negatives, your Honor.

20

THE COURT: It wasn't a double negative in the

21 question.

22

So, look, you've got to listen carefully this time.

23 And this is going to be your last opportunity to answer

24 questions. If I get an evasive answer again, which is what

25 you've been giving me, then I am just going to talk to

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11

1 somebody else from now on.

2

Does an appeal by a dis- --

3

UNIDENTIFIED VOICE: I thought that --

4

THE COURT: Whoever is talking, shut up.

5

Does an appeal of a preliminary injunction that has

6 not been stayed preclude the district court from enforcing the

7 preliminary injunction? Yes or no?

8

MR. SHANNON: Your Honor, Ms. Sperry has arrived.

9 Can I please ask her to respond to your question?

10

THE COURT: I just want somebody to answer the damned

11 thing. You're wasting my time by even doing that. Answer the

12 question, for crying out loud.

13

MS. SPERRY: The Court can enforce the injunction --

14

THE COURT: I want a yes or I want a no. I want a

15 yes or I want a no.

16

MS. SPERRY: Yes.

17

THE COURT: Okay. So I can enforce it. Okay. So

18 that's my first question.

19

So now I've got Ms. Sperry in the room. I am going

20 to ask the question that Mr. Shannon wasn't answering before.

21

Does an appeal from a preliminary injunction deprive

22 the district court of jurisdiction over the rest of the case?

23 Yes or no?

24

MS. SPERRY: The rest of the case?

25

THE COURT: Right.

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1

MS. SPERRY: No.

2

THE COURT: Okay. Thank you.

3

MS. SPERRY: The underlying complaint.

4

THE COURT: And both of those answers, by the way,

5 are consistent with my understanding of the law.

6

Okay. So now I am going to get to my third question.

7

I don't care who answers this, and you don't have to

8 preface it by can I permit this person to answer? I don't

9 care who answers it. I just want somebody to answer it, okay?

10

So depending upon how I read the defendant's last

11 brief, I'm not sure what your answer is to this question,

12 which is why I'm asking it. A party who is a beneficiary of a

13 preliminary injunction and who claims it's been violated, are

14 they entitled to get discovery to try to find out if it's been

15 violated?

16

MS. SPERRY: Not if it has not been ordered by the

17 court as part of the preliminary injunction motion to monitor

18 compliance.

19

THE COURT: So you have to get leave of court to just

20 send out discovery requests?

21

MS. SPERRY: If it has not been --

22

THE COURT: Why would that be?

23

MS. SPERRY: In other cases, if the Court, as part of

24 its preliminary injunction order, has permitted the parties to

25 continue discovery for purposes of monitoring compliance, that

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13

1 may be the case. It is not the case here.

2

THE COURT: Time out. So what's the provision in the

3 Federal Rules of Civil Procedure that says that a party has to

4 get leave of court to just serve discovery. I'm not talking

5 about expedited. I'm just talking about regular discovery.

6

Let's just say that the plaintiffs have sent you,

7 which by the way, they should have on May the 6th, they just

8 sent you these discovery requests. Said, here's our discovery

9 requests under Rule 34 of the Rules of Civil Procedure.

10 Here's our request for production of documents, please answer

11 these.

12

Would there be something wrong with that? You don't

13 have to get leave of court to serve a Rule 34 request, do you?

14

MS. SPERRY: Here, I think, is the distinction, your

15 Honor. They can serve discovery requests with respect to the

16 complaint itself in pursuit of the underlying case in the

17 trial moving toward a permanent injunction perhaps.

18

But with respect to monitoring compliance, unless

19 it's specifically ordered by the court, our view is that there

20 is no inherent right to pursue discovery if it's not ordered

21 by court.

22

THE COURT: Okay. So I --

23

MS. SPERRY: For compliance.

24

THE COURT: I got your briefs in front of me here.

25 So point -- tell me the page that has the case or cases on it

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14

1 that say that or the rule or whatever it is. Where do I find

2 this in the brief?

3

MS. SPERRY: Bear with me, Judge. I'm just getting

4 my bearings here.

5

Oh, so the case of Bradford-Scott Data Corp. vs. --

6

THE COURT: What page of what brief?

7

MS. SPERRY: Page 6 of the defendant's motion to

8 stay.

9

THE COURT: Okay. Hang on a second. This is the

10 last thing, right?

11

MS. SPERRY: Correct, document 98-1.

12

THE COURT: I'm there. Page 6. Go ahead.

13

MS. SPERRY: Sure.

14

So the case of Bradford-Scott Data Corp. v. Physician

15 Computer Network provides, and Griggs that it cites to,

16 provides that the Court has jurisdiction over the remaining

17 aspects of the case that are not on appeal.

18

There is -- but as far as monitoring compliance that

19 is separate from and is part of the preliminary -- well, the

20 order is part of the preliminary injunction order.

21

So if the party wanted to pursue, as I said, the

22 underlying complaint and proceed through the normal channels

23 of discovery, pursuing the permanent injunction perhaps on the

24 complaint that remains, that would be different and that

25 certainly is not the character of the discovery requests that

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15

1 were issued here that purportedly are to monitor compliance,

2 although, as you note from the filings, it goes far beyond

3 what the Court actually ordered in the injunction itself.

4

THE COURT: Okay. So what you're telling me is that

5 this Bradford whatever it is, Bradford hyphen something, this

6 Bradford-Scott case says that you can't do discovery that

7 amounts to trying to monitor compliance with a preliminary

8 injunction and I think you said before unless the judge lets

9 you.

10

MS. SPERRY: So in -- so Bradford-Scott says that the

11 Court loses -- the district court loses jurisdiction over all

12 aspects of the injunction that are on appeal with the

13 exception of any of the underlying proceedings on the original

14 complaint. The cases, for example, on page 7 of the brief,

15 Perfecseal v. Heezen and the other cases cited by the

16 plaintiffs, in those cases the ability to monitor,

17 quote/unquote monitor, but the ability to pursue discovery

18 with respect to compliance with the injunction was

19 specifically ordered as part of the injunction order in those

20 cases, which isn't the case here. And that the Court opted

21 for the status report avenue of ensuring compliance.

22

THE COURT: Okay. All right. But you said a few

23 minutes ago that -- I think you said a few minutes ago that

24 the district court retains the ability to enforce the

25 preliminary injunction even if it's on appeal if it's not

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1 stayed, right?

2

MS. SPERRY: If it's not stayed, the Court -- the

3 Court does have the ability to enforce it if it isn't stayed,

4 that's true. That, in our view, does not entitle the other

5 side to discovery upon it.

6

THE COURT: Okay. So are you saying, basically, that

7 because there isn't something in the preliminary injunction

8 that says you're entitled to do discovery, to do it, it's too

9 late to change that now?

10

MS. SPERRY: That's our view, yes.

11

THE COURT: Huh, okay.

12

And your position is is that none of these discovery

13 requests that you've been served with here has anything to do

14 with what I call the rest of the case, in other words, whether

15 the plaintiffs ought to be able to get a permanent injunction?

16 Is that --

17

MS. SPERRY: I'm sorry. I'm thinking.

18

In our view, no, not as presented, no.

19

THE COURT: Okay. Because actually your argument

20 kind of is that they are because you make the point on some of

21 these requests that they go beyond what the preliminary

22 injunction says. So it can't involve the preliminary

23 injunction, it must involve the rest of the case.

24

MS. SPERRY: Well, they involve things that go beyond

25 what the Court had ordered. I guess --

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1

THE COURT: I understand, but that means they involve

2 the rest of the case. I mean, my point is that your position

3 kind of runs headlong into itself when it turns the corner.

4

MS. SPERRY: I understand what you're saying. I

5 understand the distinction that you're making, and perhaps

6 Mr. Shannon has a better view, if you don't mind, your Honor.

7

MR. SHANNON: Judge, can I add to the response, your

8 Honor?

9

THE COURT: You can do it quickly, yeah, and

10 responsively.

11

MR. SHANNON: So -- and I will work off of what the

12 plaintiff has said. I mean, the plaintiff has asked for

13 permission to issue this discovery. They are explaining and

14 attempting to advise the Court that they have established good

15 cause for issuance of discovery built around this notion of

16 compliance.

17

And the difference I think, and some of this is

18 procedural, but some of this is more of a gatekeeper function.

19 The thing that's unique here, your Honor, is getting back to

20 what I, frankly, have been talking about since the beginning

21 of our conferences, that if it is discovery related to the

22 permanent injunction, then we should be doing that by way of a

23 real schedule, a real structure with a gatekeeper and a time

24 line that everyone is operating off of the same page on, not

25 these ad hoc, regular and routine emergency freestanding

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18

1 requests that really, as you'll note from our brief, in our

2 mind are akin to a rule to show cause or a motion for

3 contempt, which carries a much more significant burden than

4 just good cause to make us respond to this stuff that they

5 deem appropriate at this point.

6

THE COURT: All right. I'm just trying to process

7 that.

8

So it kind of sounded like what you were telling me

9 is that if this discovery involves the rest of the case, they

10 can't do it because there isn't a discovery schedule in place.

11 Where is that coming from? Is that in the Rules of Civil

12 Procedure somewhere?

13

MR. SHANNON: Well, I think -- I suppose it would be

14 part of a district court scheduling order, your Honor, but to

15 some extent, I'm operating off of custom, too, and that's --

16 if this matter is assigned to Judge Gettleman and the other

17 permanent injunction hearings I have had, there is a schedule.

18 It typically involves expert disclosures. It typically

19 involves times to respond. It typically will involve motions

20 to compel in the district court or whichever court is

21 presiding will serve as the gatekeeper, but there is a

22 structure. It's not this hovercraft, this kind of

23 freestanding, we think we need this now because we would like

24 to explore whether you're complying with the judge's order.

25

THE COURT: So -- so if the plaintiffs had just sent

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19

1 out these things, and, you know, said, okay, this is our Rule

2 34 request for production, your response would be then, no,

3 you can't do that because we don't -- the judge hasn't imposed

4 -- hasn't set a discovery schedule, it sounds like. Is that

5 right?

6

MR. SHANNON: I don't know that that would be our

7 position, your Honor. I suspect that we would probably issue

8 our own discovery, and at some point, we'd work out a schedule

9 with the plaintiffs.

10

THE COURT: I don't know if that was a yes or if it

11 was a no, but thanks.

12

Okay. So who wants to talk about this issue of on

13 the plaintiffs' side about this issue of what, when and how

14 and under what circumstances you're entitled to do discovery

15 at this point?

16

MS. GRADY: Your Honor, I can handle that question.

17

So as an initial matter, we think the law on the

18 jurisdictional point is clear that's separate from a showing,

19 and that would be true because frankly these discovery

20 requests are relevant to both the preliminary injunction and

21 the permanent injunction, and a party always has the right to

22 ask the Court for expedited or emergency discovery even before

23 there is a scheduling order in place. We've done that in

24 other cases. That is what Rule 26(d) expressly permits

25 parties to do, to come to court and say I need this discovery

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20

1 because there is an emergency here.

2

Sometimes that's statute of limitations. Sometimes

3 it's something else, but that's an available mechanism for the

4 Court.

5

The Court can order that discovery to be answered on

6 an expedited schedule, and the cases that we have laid out in

7 our brief at Docket 85 and also the brief we filed yesterday,

8 that's at Docket 102, lay out the standard for that, that's

9 good cause, and we've explained why we need that. I think,

10 frankly, the substance of the case establishes what the

11 emergency is and why we need the discovery to understand what

12 the status of the situation is in the jail, especially given

13 our declarations that we've submitted and establishing that

14 the Sheriff's contention -- he's got everything well in hand

15 is not so.

16

I'm happy to speak more about why the district court

17 has jurisdiction. There can be really no dispute, for

18 example, that the Court could order witnesses to give

19 testimony in order to assess whether the defendants were in

20 compliance with the preliminary injunction.

21

There can be no distinction between ordering them to

22 do that and ordering them instead to tell us about that sort

23 of a thing. And there's just no case that establishes that

24 discovery about compliance is there's no jurisdiction for the

25 order about compliance.

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1

THE COURT: So why didn't you guys just serve these

2 as discovery requests and rather than putting them in like,

3 whatever it was, a response to a status report or something

4 like that?

5

MS. GRADY: Well, I think that there are two -- two

6 responses to that. One is that the timing that we believe is

7 necessary to get responses is immediate. And for the reasons

8 laid out in our brief, you know, we needed those responses

9 right away, and I'm happy to defer to the brief on that.

10

THE COURT: 15 days have gone by, okay? So what's

11 the second reason?

12

MS. GRADY: Okay. The other -- the other reason is

13 that although we served waivers of service basically at the

14 time we served our complaint, the defendants have not yet

15 completed the waivers of service, and so I think under the

16 Federal Rules, there may be some tricky issues about being

17 able to demand that they respond to discovery without a court

18 order.

19

THE COURT: Okay. That sounds like an actual reason.

20 Okay.

21

Let me ask you on the plaintiffs' side. Again, it

22 doesn't have to be the same person that answers all of these

23 questions. I just make the observation that a good deal of at

24 least the plaintiffs' last submission, maybe the one before

25 that as well, kind of sounds more like, well, we really don't

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22

1 think the preliminary injunction went far enough, you ought to

2 be doing more, rather than give us discovery to ascertain

3 compliance.

4

So I want to find out -- I basically have -- your

5 discovery requests, your document requests, there's seven of

6 them. If I can kind of boil those down to their essentials.

7 Number one is information regarding the number of tests,

8 number of positive tests.

9

Number two is information about the protocol for

10 testing.

11

Number three is identification of people who have

12 died from coronavirus disease.

13

Number four is identify everybody in the RTU, various

14 things about them.

15

Number five is update the tier occupancy report.

16

Number six is provide supporting information for

17 those who -- it has to do with group housing, why they have to

18 be in group housing or why they can't be in group housing.

19

And then number seven was CCTV footage for a

20 particular day for like about 10 or 11 tiers.

21

So I want to zero in on two of those. What does

22 identifying people who have died and identifying who's in the

23 RTU have to do with compliance with the preliminary

24 injunction?

25

MS. VAN BRUNT: Your Honor, it's Alexa Van Brunt.

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1

The people in the RTU, while not subject to the

2 social distancing requirements, are subject to the

3 requirements related to protective personal equipment and

4 sanitation, and we have strong concerns about the state of

5 affairs in the RTU and Cermak because of how crowded they are

6 and because of reports we've received about additions in those

7 units from detainees and their families.

8

THE COURT: How does that relate to discovery request

9 number four? What you just said, how does it relate to

10 discovery request number four?

11

MS. VAN BRUNT: Right. That relates to -- apologies

12 -- to CCTV footage over the RTU.

13

As to number four, which seeks the actual booking

14 information and medical designation, the Sheriff is in one of

15 the exceptions to social distancing requirements, it lays out

16 the documentation that is necessary for those exceptions, and

17 one of those relates to the need to be in housing that is

18 equipped for medical and mental health treatment.

19

So we want to assess whether everybody who is in RTU

20 and in Cermak which are not socially distanced under the order

21 are, in fact, there for a proper medical reason in accordance

22 with the order.

23

THE COURT: Are you looking at request number four?

24

MS. VAN BRUNT: Yes, your Honor, but it does dovetail

25 with request --

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1

THE COURT: Okay. I understand, but it's a separate

2 request, so it's its own thing. It's got a number on it.

3 It's a paragraph, and it's separated from the other thing. So

4 what is it in number four that's going to get you anything

5 about what you just said?

6

MS. VAN BRUNT: The medical designation, your Honor.

7

THE COURT: What is a medical designation, as you

8 understand that to be used by the Sheriff?

9

MS. VAN BRUNT: They have specific designations,

10 these M3, M4.

11

THE COURT: Code, right? Yeah.

12

MS. VAN BRUNT: Yeah, the code for varying levels of

13 physical and mental health needs and disability.

14

THE COURT: So you're trying -- so that would -- so

15 that would enable you to ascertain what the -- you know what

16 those codes mean presumably. That would unable you to

17 ascertain what the designation is of each person in the RTU in

18 Cermak.

19

MS. VAN BRUNT: We believe so. We know what the

20 codes mean to the extent they were elucidated in the Sheriff's

21 pleadings, and we used those codes because we thought it would

22 be easiest for the Sheriff to respond using its own codes as

23 opposed to ones we made up.

24

THE COURT: Okay. What about number three,

25 information sufficient to identify everybody who has died.

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25

1 What part of the preliminary injunction does that relate to?

2

MS. VAN BRUNT: Your Honor, that goes closely again,

3 I'm sorry to use the word dovetails, but with testing, and we

4 have received information that people who have been in the

5 jail and who are immediately released have subsequently died

6 and have not been counted in the Sheriff's numbers of people

7 who were sick and then subsequently died as a result of being

8 sick in the jail.

9

We think this is just a general issue of transparency

10 about what the state of the disease is in the jail, frankly.

11 This is the one that is possibly the least -- everything else

12 is related to compliance, but, your Honor, we've got to say we

13 need to know who actually is infected and who is dying as a

14 result of this disease as a general matter, and we have grave

15 concerns about what we are hearing in terms of the disparities

16 between who is dying --

17

THE COURT: You're getting pretty far away from my

18 question at this point.

19

MS. VAN BRUNT: Apologies.

20

THE COURT: So you think the Sheriff has got

21 information about who's died after they left the jail, which

22 is what number three really relates to?

23

MS. VAN BRUNT: Correct. It's that last phrase.

24

THE COURT: What makes you think they'd have that?

25

MS. VAN BRUNT: Well, if he doesn't have it, we'd

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26

1 like to know that. It -- we --

2

THE COURT: Yeah, honestly, look, if you want to get

3 yelled at like Mr. Shannon did for not answering questions,

4 just keep it up. Okay? That's not an answer to my question.

5 Do you want to answer my question?

6

MS. VAN BRUNT: Apologies. We don't know that he

7 knows it, but we don't know.

8

THE COURT: I'm getting the feedback beeping again,

9 which I'm pretty sure is coming from the conference room at

10 Hinshaw. Just saying.

11

I want to go back -- again, we're just talking about

12 the discovery requests at this point. So why isn't -- why

13 isn't the right thing to do here -- so, well, actually, let me

14 ask a different question. This picks up on something that

15 either Ms. Grady or Ms. Van Brunt said.

16

So what's the story with returning the waiver of

17 service, Mr. Shannon or anybody else on the defense side?

18

MR. SHANNON: We haven't answered yet, your Honor. I

19 was not aware of that.

20

THE COURT: No, no, no. Did you hear my question?

21 My question was where are you on returning the waiver of

22 service?

23

MR. SHANNON: I was not aware of that, your Honor,

24 and I will have to check on that.

25

THE COURT: Okay. Who on the plaintiffs' side is

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27

1 familiar with when the waiver of service was sent?

2

MS. GRADY: Your Honor, I am happy -- I'm in the

3 process of pulling that up.

4

THE COURT: I'm going to step away for a second and

5 just grab one thing.

6 (Brief pause.)

7

THE COURT: Raise your hand if you're hearing that

8 infernal beeping?

9

Okay. Raise your hand if it's driving you bonkers?

10 Oh, it stopped. Okay. Maybe that's all it took. You just

11 had to yell at it.

12

Are we close, Ms. Grady?

13

MS. GRADY: I'm so sorry, your Honor. I really did

14 think that I was going to have it pulled up. It --

15

THE COURT: Maybe I should ask another question. Are

16 you sure you sent one?

17

MS. GRADY: Well, I would expect my search to be

18 doing a better job.

19

If I can have about three minutes, I can probably

20 tell you as a confirmed matter that we did or that we probably

21 didn't. If I can have one minute to look.

22

THE COURT: I'm actually going to go a different

23 direction here for a second, but I've got to pull up the

24 docket in order to do that, so just give me a second to do

25 that.

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28

1

All right.

2

MS. GRADY: Your Honor, while we are doing that, I

3 can confirm that we did on April 4th.

4

THE COURT: Okay.

5

All right. So turning over to the defense. So they

6 sent the waiver of service on April the 4th. What's going on

7 with it?

8

MR. SHANNON: I'm going to have to find out, your

9 Honor. I am not in a position --

10

THE COURT: If you don't know right now, there is not

11 much point.

12

To the extent that the rules, you know, delay the

13 initiation of discovery, basically what they talk about is

14 they talk about the judge issuing a scheduling order and when

15 the judge is supposed to issue a scheduling order, and it says

16 that the judge must issue -- this is 16(b)(2), the judge must

17 issue a scheduling -- the scheduling order as soon as

18 practicable.

19

But unless the judge finds good cause for delay, the

20 judge must issue it within the earlier of 90 days after any

21 defendant has been served with the complaint or 60 days after

22 any defendant has appeared.

23

Defendants appeared on April the 5th. The 5th plus

24 60 would be something like June the 3rd. Maybe June the 2nd.

25 My math is maybe a little off there.

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1

Okay. We're going to pause on the discovery, and we

2 are going to come back to that in a second. Now I am going to

3 talk about the main question.

4

So the last document that was filed on the request

5 for a stay pending appeal was filed by the plaintiff, so I'd

6 like to give Mr. -- whoever wants to deal with this on the

7 defense side a chance to discuss the question of a stay

8 pending appeal.

9

MS. SPERRY: Your Honor, I won't go too far out of

10 our briefs, but there are a couple of points that I think are

11 very important to keep in mind as to why a stay is warranted

12 in this case.

13

In addition to the facts that we believe, given the

14 uncertainty about the standard, legal standard, to be applied,

15 certainly there is a likelihood of success on the merits of

16 the appeal itself.

17

More importantly, the injunction must be stayed

18 because the efforts that have been in place at the jail since

19 well before this case has been filed have been successful in

20 controlling the spread of the virus as demonstrated by the

21 data that we submitted which show, most importantly, that the

22 test positivity rate in the jail is now less than 6 percent.

23

The test positivity rate as a frame of reference in

24 the northeast region of the state of the governor's order, for

25 example, is somewhere around 18 percent, meaning that if all

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30

1 of the detainees that are tested, and we have, and I'll get to

2 this, but we have expanded greatly the number of detainees

3 tested, but of all of them who are tested, less than 6 percent

4 of them are testing positive, and of them, the vast majority

5 of them are entering the jails from the community at intake.

6 This is not due to the spread of the virus inside the jail.

7

So what all of this means is that the efforts that

8 have been in place, the most important efforts that have led

9 to this success have been, for example, the assignment of

10 isolation housing for positive tests of detainees, quarantine

11 housing for those who have been exposed, opening tiers of the

12 jail to allow for social distancing in the housing areas, the

13 efforts that have been made to obtain PPE and have the jail

14 designated as a rapid testing site.

15

Those are all of the efforts that have led to these

16 great successes that we are now seeing. They've been in place

17 long before the suit was filed and certainly before the

18 injunction itself was entered. Therefore, number one, there

19 is no risk that the Sheriff is going to stop doing these

20 structural efforts within the jail and compromise the success

21 that he has had so far. And, number two, that those efforts

22 have in and of themselves been responsible for these results.

23

The injunction largely reinforced the things that the

24 Sheriff was already doing again before the suit was filed. So

25 the harm, of course, is that now the Sheriff is in a position

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31

1 of having to operate the jail under threat of contempt for

2 making a decision that may be warranted, for example, by the

3 CDC's recommendations. However, it might be in conflict with

4 the Court's injunction.

5

And there are now three appellate circuits in this

6 country that have determined that that in and of itself is a

7 greater harm, the federalism issues that are raised by a

8 federal court imposing these types of restrictions and

9 interference on the Sheriff's inherent discretion to operate

10 the jail safely, which, again, he has proven that he is doing,

11 that that in and of itself is a greater harm than lifting the

12 injunction because of the fact that the detainees are now at

13 an extraordinarily low rate risk of infection, the absence of

14 the injunction is not going to be of harm to them. Certainly

15 not --

16

THE COURT: Okay. I am going to interrupt you for a

17 second. Because --

18

MS. SPERRY: Yes.

19

THE COURT: -- I mean, in light about the first

20 two-thirds of what you said, that we're already doing this,

21 we're already doing that, and then largely the tenor of the

22 written materials that have been filed is that you basically

23 just ordered us to do stuff we were already doing, if that's

24 true, I guess I'm really having a hard time coming to grips

25 with the proposition that the Sheriff, which has to show

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32

1 irreparable harm absent a stay, how the Sheriff is going to be

2 irreparably harmed if there is not a stay in light of, you

3 know, basically what the whole tenor of what your briefs say.

4

So, I mean, I know you want to focus on other things.

5 You want to focus on there's no harm to the plaintiff because

6 we're going to keep doing all these things, but let's zero in

7 on that issue for me.

8

MS. SPERRY: Sure, of course.

9

The irreparable harm here, as the 5th, the 11th and

10 9th Circuits have found is that forcing -- essentially this

11 injunction places the Sheriff in the position of having to

12 consider a potential claim of contempt with the injunction

13 order, which interferes with his inherent discretion to

14 operate the jail as he sees fit.

15

And this is deeply rooted in the United States

16 Supreme Court precedent about the federal courts not elevating

17 themselves to the quote/unquote superwarden, as the 11th

18 Circuit said it, micromanaging, essentially, the functions of

19 the jail, and placing the sheriffs in the untenable position

20 of having to say, well, I'm either going to be in contempt or

21 I can operate the jail safely in the way that I have the

22 inherent discretion to do, and that that, as a matter of

23 federalism and otherwise, is an irreparable harm greater than

24 any risk the plaintiffs --

25

THE COURT: I have two questions about that, two

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1 questions about that. One is just to clarify.

2

So basically the irreparable harm is the fact that

3 the Sheriff essentially, for want of a better word, has to

4 look over his shoulder, right?

5 (Laughter.)

6

MS. SPERRY: That's correct.

7

THE COURT: That's what you're saying.

8

Okay. Then secondly, secondly, was it the -- and by

9 the way, whatever that laughter was in the background, it's

10 got to stop now.

11

And I'm going to just pause to let that sink in.

12 It's got to stop now. Just pretend you're in a courtroom

13 because effectively you are.

14

My second question is this: In any of the other

15 cases that you had talked about, the three circuit court cases

16 that you mentioned, Ms. Sperry, was there -- had the defendant

17 in those cases taken the position, either in the district

18 court or in the Court of Appeals, that they were already doing

19 independently all of the things that they had been directed to

20 do by the preliminary injunction?

21

MS. SPERRY: In those particular cases, your Honor,

22 they had efforts in place to contain the spread of the virus.

23 The court in some cases was ordering those jail directors to

24 do that, sometimes more than that.

25

But, yes, they were already taking effective steps to

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1 control the spread of the virus in the jail.

2

MR. SHANNON: Your Honor?

3

THE COURT: I am going to ask my question again. I

4 am going to ask that question again, and I'm going to just

5 pull it up on the realtime so I ask it exactly the same way as

6 I asked it before. One second here.

7

Have the defendants in those cases taken the

8 position, either in the district court or in the Court of

9 Appeals, that they were already doing independently all of the

10 things that they had been directed to do by the preliminary

11 injunction?

12

Did you hear my question? Have the defendants in

13 those cases taken the position, either in the district court

14 or in the Court of Appeals, that they were already doing

15 independently all of the things that they were directed to do

16 by the preliminary injunction?

17

MS. SPERRY: Yes.

18

THE COURT: That's the question.

19

They did? Which one so I can go look. I want to go

20 look. So tell me which one or which ones. They took that

21 position either in the district court or the Court of Appeals.

22

MS. SPERRY: My recollection is that it was the Swain

23 case from the 11th Circuit out of Miami-Dade County, and that

24 the position was that they --

25

THE COURT: Just tell me the cases. No, no, no. I

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1 gave you a really clear question. I asked it three times.

2 You said yes. You said you think it's that case. What other

3 ones?

4

I can go read them. I'll just go read them. I want

5 to find out if that's what they said, so what's the other one

6 if there is another one?

7

MS. SPERRY: The other is the Valentine case from the

8 5th Circuit.

9

THE COURT: Valentine. Okay. All right. Thank you.

10

MS. SPERRY: And the third is Roman out of the 9th

11 Circuit.

12

THE COURT: Okay. So you're telling me, again, we

13 are going back to my question. You're telling me that in each

14 one of those cases if I go back and look, I am going to find

15 that the defendant told either the district court or the Court

16 of Appeals that they were already doing, independently of the

17 preliminary injunction, everything that the preliminary

18 injunction ordered them to do? I'm going to find that there

19 because that was my question, is that right?

20

MS. SPERRY: That is my recollection as I sit here,

21 your Honor, yes.

22

THE COURT: Okay.

23

All right. Right. Let me hear from the plaintiff on

24 the question on the table.

25

MS. VAN BRUNT: My apologies, your Honor. I didn't

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1 hear that very last bit.

2

THE COURT: I want to hear from the plaintiffs on the

3 stay issue.

4

MS. VAN BRUNT: All right. I'll take irreparable

5 harm if that's all right.

6

I think that the Sheriff's greatest weakness is that

7 there has been and cannot be a showing of irreparable harm

8 where the Sheriff states, as he did, that he is already

9 complying with the preliminary injunction and fully intends to

10 keep complying.

11

There's also the issue of timing. It's strange that

12 there's been a three-week delay in filing a motion to stay.

13 The harm is irreparable. One would expect that the filing

14 would have come the day after or thereabouts.

15

There's also the fact that most of the irreparable

16 harm the Sheriff mentioned is speculative, and possible future

17 harm should changed circumstances request or mandate changes

18 to the preliminary injunction. But as we put forth in our

19 brief, the response for that is not a stay, but rather the

20 Sheriff seeking a modification of the decree in accordance of

21 those circumstances with an evidentiary basis for it. And so

22 far there has been no such showing of proof.

23

Altogether, there hasn't been a showing of

24 irreparable harm, and it's a balancing --

25

THE COURT: So what about this argument that --

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1 actually, I am going to ask again that everybody who is not

2 talking mute yourself. Everybody, phone, video, everybody,

3 mute yourself. I can tell if you're muting yourself. Okay.

4 So everybody do that right now. Anybody who is not talking,

5 mute yourself.

6

Okay. So we've got Michael McAndrews who hasn't

7 muted himself. We've got Matthew Hendrickson. We've got

8 somebody named Donna. We've got somebody named Elizabeth

9 Perado. We've got a couple of my law clerks apparently. We

10 got a couple of wireless callers. Mute yourselves, people.

11

Thanks.

12

MS. SPERRY: Your Honor, I do think that some of the

13 wireless callers are muted but for some reason don't appear as

14 muted on the participants' list.

15

THE COURT: Okay. Anyway. What about this argument

16 that the fact that the Sheriff essentially has to operate

17 under scrutiny by a court at the risk of a potential contempt

18 is enough irreparable harm? What do you have to say about

19 that?

20

MS. VAN BRUNT: Your Honor, obviously, there is some

21 burden involved in operating under a preliminary injunction

22 order, which is why there was such a substantial process to

23 get to this point already. And, of course, there is a level

24 of judicial deference to jailers in operating their jails,

25 that that is not in opposition to the mandates of the

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1 Constitution.

2

And so in Brown v. Plata, we cite that in our brief,

3 and Ms. Grady is happy to talk about the merits of the case,

4 which is why we are here in the first place because there has

5 been a sufficient showing at this stage of a violation of the

6 Fourteenth Amendment objective reasonableness standard.

7

So there can't be a stay just because there is some

8 onerous mandate attendant to having a preliminary injunction

9 when there's already been an evidentiary showing that it's

10 necessary.

11

THE COURT: Okay. So who is going to talk about the

12 other stay factors?

13

MS. GRADY: Your Honor, I can talk about that.

14

I think the important thing that we think to keep in

15 mind about Swain and Valentine and I would say the Roman in

16 the 9th Circuit consists of about two or three sentences, so

17 there's really not a discussion there laying out the factors.

18 In fact, they do enforce the stay related to that.

19

For Swain and Valentine, they look at all of the

20 things, and one of the things they talk about first and

21 foremost is the likelihood of success on appeal. And it's in

22 conjunction with that that they assess the burden on the state

23 official in Valentine and the county in Swain because where

24 they have assessed that the district court failed to properly

25 make findings about the suggested intent, which was required

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39

1 in both of those circuits, then the harm of having oversight

2 was elevated. So it's all of those factors that have to be

3 taken together.

4

We argue in our brief about why we think there are no

5 merits arguments here. The Sheriff doesn't identify a legal

6 issue. The arguments in the motion to stay largely disagree

7 with the result that this Court reached but don't attack the

8 evidence of the Court's weighing of that evidence, and there

9 can be no real dispute that there is real harm to plaintiffs,

10 especially given what counsel just identified, which is that

11 if these measures were to suddenly be undone, the risk of

12 infection would by their own admission virtually skyrocket.

13

The rule they ask for essentially, every jailer is

14 irreparably harmed by anybody looking over their shoulder,

15 which would mean any preliminary injunction involving a

16 municipality or governmental entity would automatically be

17 exempt from any district court preliminary injunction until a

18 Court of Appeals had weighed in.

19

That's not the law. There's no case that says that,

20 and this Court has to assess all the factors.

21

THE COURT: Okay.

22

MR. SHANNON: Your Honor, can I respond briefly, your

23 Honor?

24

THE COURT: I don't know who that is.

25

MR. SHANNON: This is Robert Shannon, Bob Shannon on

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1 behalf of defendant.

2

THE COURT: Briefly, yeah, you can respond briefly.

3

MR. SHANNON: I want to respond briefly, your Honor,

4 on this notion of -- which we feel strongly about of harm to

5 the Sheriff's Office, and I think the point is that

6 plaintiffs' own actions here add texture to what the circuit

7 cases are talking about, and it's not simply a matter of

8 oversight or someone looking over, us having to look over our

9 shoulder.

10

Your Honor's order was issued on April the 27th, 80

11 pages, and it's the emergency nature of how plaintiffs

12 continue to approach this which is unique and which is

13 significant.

14

This jail spent most of the month of April focused on

15 this piece of litigation compared to others in the middle of

16 trying to deal with a pandemic. It was a tremendous

17 undertaking, extraordinarily burdensome, and we did our

18 emergency work. And we filed our compliance report on May the

19 1st, and four days later we received a brand new set of

20 emergency discovery requests asking that we respond within 48

21 hours. That's --

22

THE COURT: So I'm sorry. I need to interrupt you

23 for a second, Mr. Shannon.

24

Are you saying the fact that you've got these

25 discovery requests is part of the irreparable harm?

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1

MR. SHANNON: We cannot and what the cases -- yes,

2 your Honor, but if I can explain.

3

THE COURT: Just be -- can you please just say yes or

4 no, and then you can expound? Is that a part of the

5 irreparable harm?

6

MR. SHANNON: Yes.

7

THE COURT: Okay. So I have a follow-up question.

8

You basically are saying they can't do that, and so

9 if I take that away, then there goes that irreparable harm.

10

Your position is, legally speaking, A, they can't ask

11 for that discovery; and, B, I can't order it. And so if

12 you're right, then that can't be part of the irreparable harm

13 because it's kind of null and void, so to speak.

14

MR. SHANNON: If your Honor enters the stay and only

15 then.

16

THE COURT: No, no, no, no, no. That's not what we

17 are talking about. No, no. Completely independently. You

18 said they can't do that discovery, period, because the

19 preliminary injunction order itself did not contemplate

20 discovery, and there has not been a scheduling order or

21 anything else, and so they can't do the discovery completely

22 independent of the stay.

23

And so now you're arguing, well, wait a second,

24 Judge, the fact that we have to respond to all of this

25 discovery, that's part of the irreparable harm. So, fine, I

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1 get it. I get that's your argument.

2

So then that means that if I don't let them do the

3 discovery, there goes that aspect of the irreparable harm,

4 right?

5

MR. SHANNON: I do believe that, your Honor. But

6 what I believe doesn't mean anything until a court orders it

7 because their own actions have shown that they will continue

8 to file things with an emergency request --

9

THE COURT: Okay. So if they were calling you on the

10 phone five times a day, would that be irreparable harm, too?

11

MR. SHANNON: You know, it would be a factor to be

12 considered under the circuit court decisions that say --

13

THE COURT: I'm sorry for interrupting. Go ahead and

14 finish the point that you were going to make.

15

MR. SHANNON: And that's -- I'll close with this

16 comment.

17

That is what is unique about this specific set of

18 discovery requests, your Honor. It wasn't just discovery in

19 the normal course of the permanent injunction. It's assuming

20 non-compliance, asking for information to explore

21 non-compliance under an emergency basis, responding within 48

22 hours after this jail had already been derailed for one month

23 trying to accommodate the request and dealing with this

24 hearing. And what the circuit court cases say, in a pandemic,

25 a jail should not be subject to that.

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1

THE COURT: Okay. I want to make an observation

2 about that last comment, and then I am going to say what we

3 are going to do going forward.

4

So I understand that a lot of people had to spend a

5 lot of time dealing with the temporary restraining order

6 motion and the preliminary injunction motion in this case. I

7 understand that.

8

You just used the word derailed. Now, you can't on

9 the one hand, you can't on the one hand say that we're doing

10 all this stuff; you know, everything that you ordered us to

11 do, we were already doing. As a jail running the jail, you

12 can't say that on the one hand and on the other hand say that

13 the jail was derailed by this lawsuit.

14

Maybe a bunch of lawyers were derailed by the

15 lawsuit, and I know Mr. Miller had to spend a goodly amount of

16 time on that. I greatly appreciate that. He spent a goodly

17 amount of time on it, but you've got to pick your hyperbole a

18 little bit more carefully. I'm just going to say that.

19

So here's what we're going to do. I'm going to take

20 under advisement the motion to stay pending appeal. I am

21 going to take under advisement the discovery requests and, I

22 guess, the corresponding motion to strike them.

23

I'm going to color a little bit outside of the lines

24 here, and if Judge Gettleman has a problem with this, you

25 know, he can undo it obviously, and it's quite all right with

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44

1 me because it's his case, but I'm going to -- because there is

2 a case beyond the preliminary injunction because the

3 plaintiffs have asked for a permanent injunction. So I'm

4 going to direct the parties to have their -- to submit a

5 proposed scheduling order under 16(b) by a week from next

6 Monday. That's going to go to Judge Gettleman by the 2nd of

7 June.

8

And so you're to have your conference under 26(f) at

9 some appropriate point between now and then, but that's when

10 the draft scheduling order is due to Judge Gettleman. So that

11 at least as of June the 2nd, or whenever Judge Gettleman

12 enters it, will take off the table at least the theoretical

13 proposition that discovery can't be done absent a court order

14 because the case doesn't end with a preliminary injunction.

15 No case in history has ended after a preliminary injunction

16 unless the parties have settled it, okay, or somebody has

17 changed their mind and given up on it, I don't know.

18

So everything else is taken under advisement. Nobody

19 has leave to file anything else. I've got plenty enough to

20 work with based on what you've given me and on the arguments

21 you've made today.

22 (Discussion off the record.)

23

THE COURT: All right. Thanks, everybody. Have a

24 good rest of the day.

25

MS. GRADY: Thank you, your Honor.

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1

MS. VAN BRUNT: Thank you.

2

MR. SHANNON: Thank you.

3 (Which were all the proceedings had in the above-entitled

4 cause on the day and date aforesaid.)

5 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.
6

7 Carolyn R. Cox

Date

Official Court Reporter

8 Northern District of Illinois

/s/Carolyn R. Cox, CSR, RPR, CRR, FCRR

9

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Case: 1:20-cv-02134 Document #: 73 Filed: 04/27/20 Page 1 of 87 PageID #:1934

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, individually and on

)

behalf of a class of similarly situated

)

persons; and JUDIA JACKSON, as next )

friend of KENNETH FOSTER, individually )

and on behalf of a class of similarly

)

situated persons,

)

)

Plaintiffs-Petitioners,

)

)

vs.

)

)

THOMAS DART,

)

)

Defendant-Respondent.

)

Case No. 20 C 2134

MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge:1
Anthony Mays and Kenneth Foster, both of whom are detained at Cook County Jail while awaiting trial on criminal charges, have sued Cook County Sheriff Thomas Dart, who operates the Jail, on behalf of a class of similarly situated persons. Mays and Foster allege the Sheriff has violated the constitutional rights of persons detained at the jail by failing to provide them with reasonably safe living conditions in the face of the current coronavirus pandemic. They assert claims under 42 U.S.C. § 1983 and for writs of habeas corpus under 28 U.S.C. § 2241.
On April 9, 2020, the Court granted the plaintiffs' motion for a temporary

1 Judge Kennelly is addressing this matter as emergency judge pursuant to paragraph 5 of Second Amended General Order 20-0012.

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restraining order in part. The Court directed the Sheriff to: (1) establish and implement, within two days' time, a policy requiring prompt coronavirus testing of detained persons with symptoms consistent with coronavirus disease; (2) within two days' time, eliminate the use of "bullpens" to hold groups of new detainees during the intake process; (3) begin to provide inmates and staff, within one day, soap and/or hand sanitizer sufficient to enable them to frequently clean their hands, and sanitation supplies sufficient to enable them to regularly sanitize surfaces in areas used in common; (4) establish and carry out, within two days' time, a policy requiring sanitation of all such surfaces between each use; and (5) within three days' time, distribute facemasks to all detained persons quarantined due to their exposure to a person exhibiting symptoms consistent with coronavirus disease. The Court overruled the plaintiffs' request for additional temporary relief, including a mandate for implementation of "social distancing" throughout the Jail and to provide facemasks to every detained person. The Court also concluded that the plaintiffs seeking habeas corpus relief had failed to exhaust available state court remedies.
The plaintiffs have now moved for entry of a preliminary injunction and other relief. They again seek writs of habeas corpus, based on newly discovered facts that they contend provide a basis to excuse their failure to exhaust state court remedies. They also seek conversion of the temporary restraining order to a preliminary injunction, and they again request an order requiring implementation of social distancing throughout the Jail, as well as transfer of detained persons from the Jail to other locations within the Sheriff's control, including electronic home monitoring. The plaintiffs also request the convening of a three-judge court under the Prison Litigation Reform Act

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to consider entering a "prisoner release order" within the meaning of that statute. For the reasons stated below, the Court converts the terms of the temporary
restraining order to a preliminary injunction and enters further preliminary injunctive relief regarding social distancing but denies the plaintiffs' other requests for relief.
Factual Background The following discussion of relevant facts concerning coronavirus, the Cook County Jail facilities, and the parties' claims and defenses is taken from undisputed facts, the affidavits and documentary evidence submitted by the parties, and the testimony and exhibits offered at the evidentiary hearing held on April 23, 2020. A. The coronavirus pandemic The rapid global spread of the novel coronavirus has led to a pandemic of extraordinary scale. The Court's decision on the plaintiffs' motion for a temporary restraining order includes a discussion of the gravity of the public health threat associated with this virus. Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *2 (N.D. Ill. Apr. 9, 2020). Symptoms of the disease caused by the novel coronavirus—what has come to be known as COVID-19, which the Court will refer to as coronavirus disease—include fever, cough, and shortness of breath, and the health effects can be very severe, including serious damage to the lungs and other internal organs, and death. People who are sixty-five years of age or older and those with certain pre-existing health conditions, including chronic lung disease, moderate to severe asthma, serious heart conditions, diabetes, chronic kidney disease, liver disease, a body mass index of forty or higher, and other conditions have a heightened vulnerability to severe illness if they

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contract the coronavirus. The rapid transmission of coronavirus has been attributed to several
characteristics. Respiratory droplets containing the virus emitted by an infected person, though coughing or sneezing for example, can travel several feet and may persist in the air for several hours. In addition, because the virus can persist on some surfaces for up to three days, transmission can occur even without physical proximity to an infected person. Moreover, those who contract the virus may be asymptomatic for days or even for the entire duration of the infection but can still transmit the virus to others, making it more challenging to readily identify infected individuals and respond with necessary precautions.
There is currently no known effective treatment for coronavirus disease and no vaccine to prevent people from contracting it. Medical professionals and public health experts agree—and the evidence in this case demonstrates beyond peradventure—that the only way to curb the spread of the virus is through a multi-faceted strategy that includes testing to identify those who have been infected; isolation of those who test positive or develop symptoms consistent with the disease; quarantining those who may have come into contact with the virus; frequent sanitation of surfaces; frequent handwashing; and use of personal protective equipment (PPE) such as facemasks. And a key tactic recommended by public health experts to curb the spread of coronavirus disease has been to keep people apart from each other—what has come to be known as "social distancing." The Centers for Disease Control's Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and

4

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Detention Facilities ("CDC Guidelines"),2 defines social distancing as "the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic)." Id. at 4.
Social distancing has effectively been mandated by most state governments as a critical strategy in combatting the pandemic. Here in Illinois, the state has been under a statewide stay-at-home order first imposed by Governor J.B. Pritzker effective March 20, 2020, the goal of which is to limit person-to-person contacts to curb transmission of the virus. Activities not deemed "essential" have been shut down. People have been strongly urged, and in many situations directed (by governments, employers, commercial establishments, and so on) to maintain space between themselves and others. In addition, the wearing of PPE, primarily facemasks, has been strongly advised and now required in some situations, particularly when people may come into contact with others.
The effect of the stay-at-home orders imposed in Illinois and most other states, along with advice by national officials to limit contacts and group activities, has been dramatic: schools have been closed; commercial establishments and workplaces have ceased operations, resulting in massive job losses; public events have largely been cancelled; and access to public spaces has been limited or barred entirely. Entire sectors of the national economy have slowed to a snail's pace. Society has paid a very high price to curb the spread of this highly contagious virus.

2 The Guidelines were issued on March 23, 2020 and are available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf.
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B. Operation of the Cook County Jail The Sheriff runs the Cook County Jail. As the Court stated in its written decision
on the plaintiffs' motion for a temporary restraining order (TRO), the Jail is "a very large physical facility—actually a campus of separate physical facilities—whose population, if one considers including both detainees and staff, is the size of a small (but not all that small) town." Mays, 2020 WL 1812381, at *1. Managing the Jail is extraordinarily challenging because of the size of its population and physical facilities, the diverse needs of the detainees, the Sheriff's public safety obligations, and his obligations to the criminal justice system. The Sheriff's public safety obligations require him to consider the appropriate custodial conditions for each detained person. As the Court has noted, the Jail's population "runs the gamut from persons with lengthy criminal records who are accused of committing violent crimes to non-violent offenders in custody for the first time who, perhaps, remain in custody only because they and their families were unable to post bond money." Id. And the Sheriff's obligations to the people in his custody, most of whom are detained awaiting trial on crimes for which they are therefore entitled to a presumption of innocence, require him to provide care sufficient to account for each individual's physical and mental health conditions. This is no small task, particularly given that populations in custody are statistically more likely to have adverse health conditions, both physical and mental.
Adding an infectious disease outbreak to these conditions further complicates the difficult challenge of managing the Jail. The very nature of the Jail's setup and day-today operations facilitates rapid transmission of communicable diseases like the one caused by the coronavirus. First, the Jail's physical facilities are designed to

6

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accommodate large populations, all densely housed, and many in congregate settings. In particular, the Jail has many so-called "dormitory" units, which in normal times may house as many as hundreds of detained persons in a single room with closely-spaced bunk beds.
Second, the Jail is a closed environment with many spaces used in common. Persons detained there—even those housed in single-occupancy cells—do not have individual bathing facilities; toilets are typically used in common; they eat in groups under normal circumstances; and they come into contact with each other and with correctional officers in other common areas. And even when confined, detainees are in close proximity, in adjoining cells and in tiers that use a common ventilation system.
Third, the routine operations of the Jail require high levels of movement of people. Detained persons must be escorted from their cells to common areas like shower and bathroom facilities. In normal times they are escorted to court hearings and recreational areas (all or nearly all of which have come to a stop). Finally, large numbers of staff personnel, as well as vendors, move in and out of the Jail and its various areas on a daily basis. In doing so, these individuals have contact with other members of the community at large, who themselves may have contracted coronavirus. Thus staff members and contractors potentially can carry the virus both into and out of the Jail.
Limiting exposure to the coronavirus in the Jail is therefore a significant challenge. Infection rate data reflects that it has been challenging to effectively curb transmission of the highly infectious coronavirus in the setting of the Jail. As of April 6, 2020, the infection rate within the Jail was an order of magnitude higher than the rate of

7

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infection in Cook County. Mays, 2020 WL 1812381, at *8. And on April 8, 2019, the New York Times reported that, at that time, the Jail was the largest-known source of coronavirus infections in the United States. See Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars (April 8, 2020), N.Y. Times, https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html (last updated April 23, 2020).
Procedural History A. Plaintiffs' suit and motion for a temporary restraining order
The plaintiffs, Anthony Mays and Kenneth Foster, are detained at the Cook County Jail and have been housed on tiers in which at least one person had been infected with the coronavirus. On April 3, 2020, they sued the Sheriff on behalf of themselves and others similarly situated, with allegations stemming from the risks the coronavirus poses to their health. The plaintiffs seek to represent a class and two putative subclasses. The class consists of "all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic." Compl. (dkt. no. 1) ¶ 60. "Subclass A consists of all people who, because of age or previous medical conditions, are at particularly grave risk of harm from COVID-19." Id. ¶ 61. "Subclass B consists of all people who are currently housed on a tier where someone already tested positive for the coronavirus." Id. ¶ 62. Mays and Foster both have medical conditions that heighten their risk of serious health consequences from an infection by the coronavirus.
In their complaint, the plaintiffs alleged that because the Sheriff was not implementing measures to control the spread of the coronavirus at the Jail, especially

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those recommended in the CDC Guidelines, the conditions in the Jail facilitated rapid transmission, putting the health of detained persons at great risk. In support of this contention, the plaintiffs attached several affidavits to their complaint from individuals who had spoken to persons detained at the jail. These affidavits reported the following conditions at the Jail in late March and early April:
• detained persons were not receiving soap, hand sanitizer, or facemasks; • facemasks that they made for themselves out of cloth were being confiscated; • detainees were being housed in bunks or beds that were between two and
four feet apart from each other; • many detained persons were living in dormitory-style housing, where dozens
of individuals shared a single room; • detained persons were being held at intake in so-called bullpens, where
numerous detainees were held together for extended periods in a crowded cell; and • the Jail's staff was not regularly sanitizing common surfaces or providing detainees with cleaning supplies to do this themselves. The day they filed suit, the plaintiffs moved for the issuance of writs of habeas corpus for the members of subclass A and for a TRO or preliminary injunction on behalf of the class as a whole, requiring the Sheriff to take action to control the rapid spread of the coronavirus at the Jail. The plaintiffs also moved to certify their proposed class and subclasses. After an extended hearing on the motion for a temporary restraining order, the Court issued a written decision on April 9, 2020 denying the request for writs of habeas

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corpus and partially, but not entirely, granting the motion for a TRO. Mays, 2020 WL 1812381, at *6, 14–16. In ruling on this motion, the Court considered the affidavits from medical experts, individuals who had spoken to detainees, and those from Jail officials and employees. The Sheriff had raised a hearsay objection to the Court's consideration of the affidavits from individuals who had spoken to detainees, but hearsay may be considered in ruling on a motion for a TRO or for a preliminary injunction. See SEC v. Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991).3 The TRO directed the Sheriff to take the following actions: (1) establish and implement a policy requiring prompt testing of symptomatic detainees, and—if medically appropriate and feasible based on the availability of testing materials—detainees who may have been exposed to the virus; (2) implement social distancing during intake and suspend the use of bullpens to hold detained persons awaiting intake; (3) provide all detained persons with adequate soap or sanitizer for hand hygiene; (4) provide staff personnel and detained persons with adequate cleaning supplies to regularly sanitize surfaces and objects, including in hightraffic areas such as shower facilities; (5) establish a policy requiring frequent sanitation of these areas; and (6) provide facemasks to all detained persons in quarantine. Mays, 2020 WL 1812381, at *14–15.
The Court denied several of the plaintiffs' requests for relief. They sought an order mandating social distancing throughout the facility, not just at intake, arguing that

3 "Given its temporary nature, 'a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.'" FTC v. Lifewatch Inc., 176 F. Supp. 3d 757, 761 (N.D. Ill. 2016) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). The same, of course, is true of a TRO.
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this was one of the critical outbreak control measures outlined in the CDC Guidelines. Id. at *10. The Court declined to mandate social distancing beyond intake, reasoning that there are space constraints at the Jail and the Guidelines expressly recognized that social distancing may not be feasible in a correctional facility. Id. The Court also declined the plaintiffs' request for direct screening of medically vulnerable detainees before they show symptoms of infection, also because the CDC Guidelines did not mandate this. Id. In addition, the Court denied the plaintiffs' request to require the Sheriff issue facemasks to every detained person, as the CDC Guidelines recommended this only for those who had come into contact with a symptomatic individual. Id. at *12, 15. Finally, the Court declined the plaintiffs' request to transfer the members of subclass B to a safe facility or other forms of custody, because the plaintiffs had failed to show that the other protective measures that the Court had ordered would be inadequate to protect detained persons from the health risks associated with the coronavirus outbreak. Id. at *15. The Court also declined subclass A's request for emergency writs of habeas corpus, concluding that they had failed to exhaust available state court remedies. Id. at *6. B. The Sheriff's response and current conditions at the Jail
1. April 13 status report On April 13, pursuant to the Court's direction, the Sheriff filed a status report regarding compliance with the TRO. First, with respect to the directive to test symptomatic detainees, the Sheriff reported that Cermak Health Services, an arm of Cook County that provides healthcare to persons detained at the Jail, maintains the

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supplies for medical testing and actually administers such tests.4 According to the Sheriff, Cermak had determined that it would not be medically appropriate to test all detained persons in quarantine. The Sheriff therefore instructed his personnel to isolate and refer symptomatic detainees to Cermak for further evaluation and testing.
As to the order to maintain social distancing during the Jail's intake process, the Sheriff implemented a modified procedure that maintains six feet of distance between all detained persons awaiting intake and provides them with facemasks. Use of the bullpens was discontinued.
Regarding the order to distribute facemasks, the Sheriff stated that he had acquired and on hand sufficient surgical masks to distribute to all quarantined detainees and employees and that he was continuing his efforts to obtain additional masks. Additionally, the Sheriff was in the process of procuring cloth masks that would be available to any detained person who requested one.
The Sheriff further reported that on April 9, he delivered approximately 28 gallons of hand sanitizer and 980 bars of soap for distribution in the Jail. He also ordered distribution of soap and sanitizer twice per week going forward. The Sheriff noted concern that some detained persons may use the soap or hand sanitizer as a weapon and that some might try to consume hand sanitizer. These considerations required the Sheriff to determine on a detainee-by-detainee basis whether to distribute hand sanitizer or soap.
With respect to the sanitation-related directives in the TRO, the Sheriff reported

4 From a chain-of-command standpoint, Cermak is under the control of Cook County, not the Sheriff.
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that he had distributed cleaning supplies to staff and detained persons on April 10. He also issued a sanitation policy to ensure that frequently touched areas such as doorknobs and phones are sanitized between uses. He issued another a policy requiring each living unit officer to ensure that surfaces are routinely cleaned and sanitized during the officer's shift. Additionally, the Sheriff stated that he was planning to hire an independent contractor to professionally clean the Jail.
2. April 17 updates from the Sheriff On April 17, three days after the Sheriff submitted his status report, officials from the Chicago Department of Public Health (CDPH), including one designated as a CDC epidemic intelligence service officer, inspected the Jail. These officials had toured the Jail roughly a month prior, on March 20, and issued recommendations for controlling COVID-19 at the Jail. A report from this inspection, dated March 27, was introduced in connection with the preliminary injunction hearing held on April 23. The March 27 recommendations from the CDPH included screening and classifying inmates based on their level of risk associated with coronavirus disease and "considering mass release of inmates to decompress the jail for urgent public health reasons." Levin Dec. (dkt. no. 70) at 10. A report from the more recent April 17 had not yet been received by the Sheriff as of the April 23 hearing. The Sheriff therefore submitted statements and testimony from two Jail officials who participated in the April site visit: Rebecca Levin, a senior public health advisor to the Sheriff, and Michael Miller, the Executive Director of the Cook County Department of Corrections. Levin stated that during the April 17 inspection, the officials commended the Jail's efforts to reduce density in housing units.

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Miller testified that the officials visited two of the dormitory units—Dorm 4, the largest dormitory unit, and Dorm 2—and commented positively about the organization and cleanliness of these spaces.
In a declaration dated April 17, Miller also provided an update to the Sheriff's April 14 status report on efforts to control the coronavirus outbreak at the Jail. He reported that each person detained in a quarantine tier was receiving a new surgicaltype facemask each day. Miller anticipated that at its current rate of consumption of masks, the Sheriff would exhaust his supplies on June 7, 2020. He added that, "as supplies permit," the Sheriff planned to distribute masks to detainees who are not on quarantine tiers. Miller Dec., Def.'s Resp. to Renewed Mot. for Prelim. Inj., Ex. E (dkt. no. 62-5) ¶ 24.
Although the TRO did not require the Sheriff to implement social distancing beyond modifying his intake procedures, Miller reported in his April 17 affidavit that the Sheriff had engaged in a significant effort to increase social distancing at the Jail. Specifically, he reported the following measures: opening previously closed divisions to better distribute detainees across available space; converting housing on 175 tiers to single-occupancy cells only; limiting dormitory units to fifty percent of capacity, with the exception of detainees in medical or "restricted housing," id. ¶ 12; and limiting the number of detained persons released into dayroom common areas to half the number assigned to that area. He reported that beds in dormitory units have been spaced so that they are at least six feet apart, and if beds are bolted to the floor, then detained persons are distributed so that there is six feet of distance between occupied beds.
Attached to Miller's declaration was a spreadsheet with the occupancy rates as of

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April 17 on each tier of the Jail, including units in Cermak and Division 8, the Residential Treatment Unit (RTU). Miller later explained that the RTU provides twenty-four-hour access to medical care and houses people who have medical needs (though the level of need was not described). This spreadsheet showed, apparently contrary to the statement in Miller's declaration, that some dormitory units were still occupied above fifty percent capacity. For example, Tier D of Dorm 1 in Division 2, which was not then under quarantine, was occupied at eighty-one percent capacity. In addition, many dormitory units in the RTU, Division 8, were occupied at nearly full capacity. For example, Tier 2F was occupied at ninety-seven percent capacity, and Tier 2G was occupied at one hundred percent capacity. (Also, Tiers 2Q and 2R in Division 6 were occupied at sixty percent and sixty-three percent capacity, respectively. They are not labeled as dormitory units in the spreadsheet, but they each have a forty-person capacity.)
The Sheriff submitted additional evidence reflecting that his ability to implement social distancing had increased by virtue of, among other things, a significant expansion of the electronic home monitoring program. He offered a chart showing a steady decline in the Jail's daily population over the previous month, including a reduction of roughly 230 detainees between April 9, when the Court issued the TRO, and April 17. Another chart showed a steady increase in the jail's electronic home monitoring population over the previous month, with an increase of approximately 300 detainees on electronic home monitoring between April 9 and April 17. The Sheriff also offered evidence, however, that utilization of this program had been extended to its outside limits, or nearly so, in light of the apparent exhaustion of program vendor's supply of

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monitoring equipment. 3. Plaintiffs' reports regarding conditions at the Jail In anticipation of the preliminary injunction hearing, the plaintiffs submitted a
number of affidavits identifying problems or deficiencies in the Sheriff's compliance with the directives in the TRO. These affidavits were from individuals who had spoken to detained persons between April 14 and April 18, and they described these persons' current experiences at the Jail. According to these affidavits, symptomatic individuals are not being tested. Additionally, although facemasks are now being distributed, detainees reported, it is not happening regularly.
The detained persons discussed in the affidavits also reported inadequacies in cleaning and sanitation practices at the Jail. Several stated that detained persons lack cleaning supplies for their individual cells and that some common spaces lack cleaning supplies as well. And even where cleaning solution is available, they reported, cloths or wipes have not been provided to enable use of the solution. A number of detainees also reported that commonly used objects, such as telephones, are not being sanitized between uses. In addition, they stated, the Jail's staff has not been cleaning cells, and some common areas are cleaned only every other day, meaning they stand uncleaned despite multiple uses and repeated touching by numerous detained persons and potentially staff personnel.
The detainees also reported an inability or great difficulty in practicing social distancing. In common areas where detained persons eat, several stated, it has been impossible to practice social distancing due to the arrangement of picnic-style benches. Tape or paint markings have been placed on the floor in some dayrooms to designate

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appropriate space for social distancing, but, they reported, some correctional officers have mocked the practice of social distancing, and many have failed to enforce it. By way of example, detained persons have been using, at the same time, telephones that are spaced only two feet apart. C. The renewed preliminary injunction motion
In their renewed motion for a preliminary injunction, filed on April 14, 2020, the plaintiffs contend that the Sheriff's efforts in response to the TRO "have not worked and cannot work to abate the spread of the disease" caused by the coronavirus. Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 4. The plaintiffs focus primarily on two inadequacies of the Sheriff's efforts to date: failure to identify and transfer medically vulnerable detainees out of the Jail, and insufficient social distancing, which, the plaintiffs contend, "is the only way to prevent intolerable risk to [their] health and lives." Id. at 2.
The plaintiffs request the following in their renewed motion for a preliminary injunction. First, they ask for a preliminary injunction ordering the Sheriff to mandate social distancing throughout the Jail. In support of this request, the plaintiffs have submitted the declaration of Dr. Gregg Gonsalves, an epidemiologist at the Yale School of Medicine and School of Public Health, who opined that social distancing is "the only way to prevent further, essentially uncontrolled, spread of the virus" in the Jail. Id., Ex. G (dkt. no. 55-7) ¶ 29. In the alternative, the plaintiffs argue that if the Court concludes that additional social distancing is not possible, an order should be entered requiring the Sheriff to transfer detained persons to another safe facility, or the Court should request convening a three-judge panel with the authority to order the release of detainees, as

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required under the Prison Litigation Reform Act . See 18 U.S.C. § 3626(a)(3)(B). In addition, subclass A has renewed its request for issuance of emergency writs of habeas corpus.5
In response, the Sheriff argues that he has sufficiently addressed the risks to the health of persons in his custody, in accordance with constitutional requirements, through the protective measures he has already implemented; his efforts were consistent with the recommendations in the CDC Guidelines; and he has taken substantial steps to implement social distancing. The Sheriff also appears to contend that further implementation of social distancing was not realistically possible in the Jail at this time. In response to the plaintiff's contention that the Sheriff has not adequately abated the risk of infection to medically vulnerable detainees, he argues that he cannot screen such individuals, because he does not have access to detained persons' health information. Furthermore, the Sheriff has explained, he already refers all medical complaints and issues to Cermak, and nothing more on his part is required to satisfy the requirements of the Fourteenth Amendment.
In their reply brief, the plaintiffs acknowledge that the Sheriff has taken "dramatic steps" to increase social distancing in the Jail. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 6. They contend, however, that these efforts have been insufficient to remedy the constitutional violation. They reaffirm their request to immediately convene a three-judge court to determine whether to release detained persons. They also reaffirm their request for a preliminary injunction mandating social

5 The plaintiffs also sought expedited discovery, but that largely became a moot point in light of later developments, so the Court does not discuss the request here.
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distancing throughout the Jail as well as transfer of detained persons to "some other safe location," id. at 2, and they ask the Court to issue such an order contemporaneously with a request to convene a three-judge panel. Additionally, the plaintiffs ask the Court to convert the TRO to a preliminary injunction.
1. Hearing on motion for preliminary injunction The Court held an evidentiary hearing on the preliminary injunction motion by videoconference on April 23, 2020. In light of the unusually compressed time schedule necessitated by the development of the coronavirus pandemic and increases in confirmed coronavirus infections at the Jail, the Court determined that it would consider the parties' affidavits (giving due consideration to issues regarding weight) and would permit each side to call one live witness. Executive Director Miller testified as the Sheriff's witness; he offered, among other things, updates to his April 17 affidavit regarding the Sheriff's efforts to manage the coronavirus outbreak. With respect to screening medically vulnerable detainees, Miller testified that the Jail was doing what it could based on the limited medical information that it has available. Miller explained that Cermak conducts a medical evaluation of every detained person at intake, and based on this, it transmits information called "alerts" to the Jail to inform housing decisions based on medical needs. These alerts do not contain any diagnostic information; rather, they simply specify the accommodations necessary to address a medical need. For example, an alert from Cermak may inform the Jail that a detained person should be housed on a bottom bunk, but it will not state the medical reason for this determination. Miller testified that Cermak has not "yet" created an alert for those who have heightened risk of severe health consequences

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from a coronavirus infection. Without such an alert, Miller explained that the Jail is conducting coronavirus screening based on any medical information about a detained person that it already has, including existing alerts.
Miller also reported that the Jail had made additional efforts to implement social distancing. To encourage persons housed in dormitory units to stay at their beds rather than congregating in common spaces, the Jail has been providing them with free books, writing pads, and puzzle books. In addition, Miller stated, detainees throughout the Jail are now released to use shared shower facilities one at a time. In common areas, sixfoot intervals have been demarcated with spray paint markings. Correctional officers, Miller said, have been trained to enforce social distancing by first communicating to detained persons the importance of maintaining the distance, and if that fails, using disincentives such as loss of microwave privileges. Miller acknowledged that despite this, detainees have not always been practicing social distancing and that they continue to congregate in common spaces such as eating areas.
Miller reported that the Jail's staff has worked diligently to increase the Jail's ability to reduce the density of the population in its housing units. Over the past month, he stated, the Jail has opened up several hundred additional housing units. Between April 17 and April 23, the Jail doubled the number of detainees housed in singleoccupancy cells, and this effort included moving 260 detainees out of double-occupancy cells. Miller stated that there are currently no detainees housed in double-occupancy cells without a medical or security reason. Most of those who are still in doubleoccupancy cells, he said, are either housed by Cermak or are designated by Cermak as requiring placement in a double-occupancy cell due to a health condition or possible

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suicide risk. Miller did not explain why a health condition might require placement in a double-occupancy cell. Some of those in double-occupancy cells have been placed there, he said, due to disorderly conduct—though, again, he did not explain how doublecelling serves a security purpose in such situations. Miller acknowledged on cross examination that social distancing is impossible for persons housed in doubleoccupancy cells.
Miller also reported that roughly 1,000 detainees are still being housed in dormitory units. He stated that approximately seventy percent of that population must remain in those units due to a medical need, though he did not explain this. As for the remainder, Miller cited one possible non-medical reason that some detainees must remain in dorm units: they are housed there in accordance with requirements of the Prison Rape Elimination Act. He explained that it would be "very challenging to try to separate those individuals and keep them protected as we need to under the PREA Act so that those individuals are not vulnerable in other areas while they're incarcerated." April 23, 2020 Tr. at 46–47. Again, however, Miller did not explain this.
Miller supplemented his testimony with an updated spreadsheet showing the occupancy of the Jail's housing units as of April 23. This spreadsheet showed that the capacity of almost every tier that was not in Cermak, the RTU, or under quarantine was fifty percent or below. However, in Division 2, Tier D1-D was at eighty-one percent capacity, and Tier D4-R was at fifty-nine percent (Tier D3-B was right at fifty percent). A number of Cermak and RTU tiers had occupancy rates as high as ninety-seven or one hundred percent.
On cross examination, the plaintiffs' counsel asked Miller about the high

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occupancy levels in certain Cermak and RTU tiers reported in the April 17 and April 22 spreadsheets. Miller explained that Cermak needed to house those individuals together to be able to provide them with access to care at all hours of the day or night. Miller acknowledged that social distancing was not possible for those housed in the Cermak and RTU tiers.
Plaintiffs' counsel also asked Miller about a high occupancy rate listed in the April 17 spreadsheet for a tier (referenced above) that was not in Cermak, the RTU, or under quarantine: Tier D of Dorm 1 in Division 2, which was then at eighty-one percent capacity. The April 22 spreadsheet showed that the dorm was still at the same capacity. Miller stated: "There's another security level and/or issue with having this many people on this tier that we've had to abide by." Id. at 31. He did not clarify the nature of the security issue. Miller acknowledged that social distancing was not possible for detainees on that tier.
When the Court asked Miller if there was still room at the Jail to move more detainees out of dorms and into cells, Miller responded, "I do have a plan in my back pocket." Id. at 57. He explained that he was working on moving people out of Dorms 1, 2, and 3. He added that the Jail is considering reconfiguring housing arrangements on tiers for detainees who are women to see if there is a way to create more capacity, presumably to disperse the much larger population of detainees who are men.
As for cleaning and sanitation of common areas, Miller reported that detainees have been given the supplies they need to do sanitation; he attributed shortfalls in sanitation to their own behavior. For example, he stated, at each microwave stations and shared showers and toilets, detained persons have been provided cleaning solution

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so that they can sanitize the facility prior to use. Finally, Miller stated, to ensure implementation of its response measures, such
as sanitation of common areas or use of PPE, the Sheriff has deployed "audit teams" that oversee these efforts. For example, the Jail has a PPE audit team that patrols PPE use and educates staff members and detained persons who are not using PPE properly.
Plaintiffs called as their hearing witness Dr. Homer Venters, a medical doctor with over a decade of experience in correctional health. Dr. Venters is the former Deputy Medical Director of the New York City Jail Correctional Health Service, a position in which he oversaw care of detainees and medical policies governing care in New York City's twelve jails. He had previously submitted a declaration along with plaintiffs' preliminary injunction reply brief. At the hearing, he testified that, in his view, the Jail's coronavirus response efforts have three key deficiencies: (1) lack of a cohesive coronavirus response plan; (2) failure to screen for individuals at higher risk of experiencing severe health consequences from a coronavirus infection; and (3) insufficient social distancing.
First, Dr. Venters explained that having a cohesive plan, rather than a collection of policy documents that address different aspects of emergency response, is a critical first step to addressing an outbreak of a communicable disease in a jail facility. He stated that because jails are such complex systems, employing and housing several thousand people, it is not possible to respond to a large outbreak without a single, coordinate plan that coordinates response measures implemented by security, health, and administrative staff.

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Second, Dr. Venters testified that screening medically vulnerable individuals is critical so that they can immediately receive heightened surveillance of possible symptoms of a coronavirus infection. This heightened surveillance would entail daily checks on those individuals for symptoms such as elevated temperature, shortness of breath, and fatigue.
Third, Dr. Venters emphasized the importance of social distancing in combatting the spread of coronavirus. In his declaration, Dr. Venters stated that medical literature on the coronavirus confirms that social distancing is an essential strategy in controlling an outbreak. During the hearing, he explained that because the coronavirus spreads so easily through respiratory droplets emitted from an infected person, transmission "is greatly impeded by physical distance that we establish through social distancing." Id. at 67.
During his testimony, Dr. Venters emphasized that practicing social distancing only in some specific areas of a congregate setting like the Jail is insufficient to curb virus transmission rates. Because people are densely packed in many contexts during routine operations of a detention facility—e.g., sleeping areas, dayrooms, shower facilities, and areas where medication is dispensed—it is critical to implement social distancing throughout the entire facility. Dr. Venters explained that a "lack of a full commitment or complete commitment to social distancing" in the Jail would promote faster transmission of the coronavirus, and more detainees and staff would become "seriously ill." Id. at 74. In his declaration, Dr. Venters had observed that the concern about severe health effects is heightened when considering detainees, because they are statistically more likely than the general public to have pre-existing health problems

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such as cardiovascular disease and cancer. Dr. Venters also discussed the importance of communication with detainees and
staff as a means to ensure that they practice social distancing in an appropriate way. Specifically, he said, to ensure widespread observance of this practice, individuals must understand what social distancing means and why it is important.
On cross examination, Dr. Venters acknowledged that outbreak management in a correctional setting imposes "unique challenges," id. at 79, and that the CDC Guidelines are "now the most important set of principles" on response, id. at 81. He also acknowledged that the CDC Guidelines provide that social distancing might not always be feasible in a correctional setting.
Dr. Venters testified that although use of single-occupancy cells facilitates social distancing, doing so poses a risk of increasing detainees' psychological distress from social isolation. He also testified that the Jail's practice of housing detainees with mental health conditions in double-occupancy cells is inappropriate, because they cannot practice social distancing at all. Though these two concerns point in opposite directions, Dr. Venters reconciled them by clarifying that, in the current pandemic environment, housing detainees in single-occupancy cells is preferable to doubleoccupancy because social distancing is critical. To address the psychological toll of isolation in single-occupancy cells, Dr. Venters testified, the Jail should provide opportunities for detained persons to come out of their cells and benefit from engagement with others in common areas while practicing social distancing.
Dr. Venters's testimony largely buttressed the points made by several other medical doctors and epidemiologists in affidavits and declarations that the plaintiffs had

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attached to their complaint and briefing of this motion. The plaintiffs' medical, public health, and correctional health experts have analogized the conditions in the Jail to those on cruise ships, which have experienced some of the largest concentrated outbreaks of the coronavirus. Specifically, these experts observe, a jail, like a cruise ship, is an environmentally enclosed, congregate-living setting with high levels of movement of people. Mohareb Dec., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj., Ex. B (dkt. no. 64-3) at 5; Gonsalves Dec., Pls.' Renewed Mot. for Prelim. Inj., Ex. G (dkt. no. 55-7) ¶¶ 17, 27; Med. Profs.' Dec., Compl., Ex. B (dkt. no. 1-2) ¶¶ 24, 25, 26.
In particular, Dr. Amir Mohareb, a medical doctor who is a biothreat response expert and an instructor at Harvard Medical School, used the example of the Diamond Princess cruise ship to highlight the importance of social distancing. The Diamond Princess sailed from Japan to Hong Kong in January of this year. After one of its passengers tested positive for the coronavirus in the last week of January, "strict precautions of hand hygiene and cabin isolation were implemented for all crew and passengers." Mohareb Dec. (dkt. no. 64-3) at 5. Despite these efforts, 700 of the people who had been on the ship tested positive for the virus over the course of the following month. This example, Dr. Mohareb, said, reflects that in the context of a congregate living arrangement like a cruise ship, hand hygiene and cabin cell isolation are insufficient to control the transmission of the coronavirus. He stated that a jail, which is similarly a congregate environment, "constitutes an equal or greater risk setting to that of a cruise ship." Id.
Dr. Mohareb explained that because respiratory droplets emitted by an infected person can travel up to six feet and be inhaled by another, social distancing is "a

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necessary intervention to prevent the spread of infection" from the coronavirus. Id. at 3, 6. He emphasized that social distancing is particularly important because an infected person may be mildly symptomatic or not symptomatic at all. Dr. Mohareb also noted that numerous authoritative bodies, including the CDC, the World Health Organization, and the Infectious Diseases Society of America, have recommended social distancing to control the transmission of coronavirus. He added that mathematical modeling supports a conclusion that social distancing is "the primary means by which individuals can be safely protected from the threat of COVID-19." Id. at 5.
All of the plaintiffs' expert affidavits emphasized the critical need to implement social distancing in order to meaningfully control the spread of the virus. Gonsalves Dec. ¶ 29 (social distancing is the "only way" to control outbreak); see also RasmussenTorvik Dec., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj., Ex. C (dkt. no. 64-4) ¶ 9. They reiterated Dr. Venters's point that the very design of a correctional facilities promotes transmission of the coronavirus because it densely packs large groups of people together. Dr. Gonsalves stated that although correctional facilities are like cruise ships in that they are enclosed environments, they present an even higher risk of rapid transmission of the coronavirus because of "conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources." Gonsalves Dec. ¶ 17. In a joint declaration, five medical doctors with experience working in a correctional setting—including three doctors who had worked at the Jail—similarly observed that the "crowded congregate housing arrangements" of jails and prisons promote the transmission of respiratory illnesses like the coronavirus disease. Med. Profs.' Dec. (dkt. no. 1-2) ¶ 24

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Beyond providing additional support for the points in Dr. Venters's testimony, the plaintiffs' other medical and public health experts added that the risks of severe health consequences from a coronavirus infection are not limited only to those who have preexisting medical conditions or are over the age of sixty-five. According to Dr. Gonsalves, "young and healthy individuals may be more susceptible than originally thought." Gonsalves Dec. ¶ 5. He reported that in March, the CDC reported that onefifth of infected people between the ages of twenty to forty-four had been hospitalized. Dr. Mohareb also stated that "a fraction of patients with COVID-19 in all groups go on to develop severe respiratory disease." Mohareb Dec. at 1.
At the conclusion of the April 23 preliminary injunction hearing, the Court extended the TRO, which was set to expire that day, pending its ruling on the motion for a preliminary injunction.
Discussion "A preliminary injunction is an extraordinary remedy." Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). A court's determination of whether to issue a preliminary injunction or temporary restraining order involves a two-step inquiry, with a threshold phase and a balancing phase. Id. First, the party seeking the preliminary injunction has to make a threshold showing, which has three elements: (1) reasonable likelihood of success on the merits of the claim; (2) irreparable harm to the movant absent preliminary injunctive relief; (3) lack of adequate remedies at law. Id. If the movant makes the threshold showing, the court proceeds to the balancing step, in which it determines "whether the balance of harm favors the moving party or whether the harm to other parties or the public

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sufficiently outweighs the movant’s interests." Id. Because they request relief that changes the status quo or requires the Sheriff to
take affirmative action, the plaintiffs are requesting what is sometimes referred to as "mandatory" preliminary injunctive relief. See Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997); O'Malley v. Chrysler Corp., 160 F.2d 35, 37 (7th Cir. 1947); cf. Schrier v. Univ. Of Co., 427 F.3d 1253, 1260 (10th Cir. 2005) ("[D]etermining whether an injunction is mandatory as opposed to prohibitory can be vexing."). Mandatory preliminary injunctions typically are "cautiously viewed and sparingly issued." Graham, 130 F.3d at 295 (quoting Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)); see also Knox v. Shearing, 637 F. App'x 226, 228 (7th Cir. 2016). But "there may be situations justifying a mandatory temporary injunction compelling the defendant to take affirmative action" based on the circumstances, Jordan, 593 F.2d at 774, and "the clearest [of] equitable grounds," W. A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958). At least two courts have recognized the unusual nature of mandatory preliminary injunctions and yet issued them after finding violations of the rights of people in custody during the coronavirus pandemic. See Barbecho v. Decker, No. 20-CV-2821 (AJN), 2020 WL 1876328, at *2, 8–9 (S.D.N.Y. Apr. 15, 2020); Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *2, 14–15 (W.D.N.Y. Apr. 2, 2020).
In assessing each claim, the Court will address the first threshold requirement for a preliminary injunction: likelihood of success on the merits, which requires showing only a "better than negligible" chance of success. Whitaker, 858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). Generally speaking, "[t]his is a

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low threshold," id., but the Court gives the matter greater scrutiny here in light of the fact that plaintiffs are seeking affirmative conduct by the Sheriff. A. Habeas corpus claim
Plaintiffs and subclass A have petitioned for a writ of habeas corpus under 28 U.S.C. § 2241. The Court first addresses the issue of exhaustion of remedies and then considers subclass A's ability to satisfy the criteria for a representative action.
1. Exhaustion As the Court concluded in its TRO decision, a petition for a writ of habeas corpus under 28 U.S.C. § 2241 is the appropriate mechanism for a state pretrial detainee to challenge his or her detention. Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015). "Because a pre-trial detainee is not yet in custody pursuant to the judgment of a State court, relief under 28 U.S.C. § 2254 is not available." Id. (internal quotation marks omitted). Section 2241 has no express exhaustion requirement, but courts apply a common-law exhaustion rule. Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004). A pretrial detainee must "exhaust all avenues of state relief" before seeking a writ of habeas corpus through a section 2241 action. See United States v. Castor, 937 F.2d 293, 296–97 (7th Cir. 1991). Although there are exceptions, "the hurdle is high." Richmond, 387 F.3d at 604. In deciding whether an exception applies, courts "must balance the individual and institutional interests involved, taking into account 'the nature of the claim presented and the characteristics of the particular administrative procedure provided.'" Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting McCarthy v. Madigan, 503 U.S. 140, 146 (1992), superseded by statute on other

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grounds as recognized in Porter v. Nussle, 534 U.S. 516 (2002)). A court may excuse exhaustion where:
(1) requiring exhaustion of administrative remedies causes prejudice, due to unreasonable delay or an indefinite timeframe for administrative action; (2) the agency lacks the ability or competence to resolve the issue or grant the relief requested; (3) appealing through the administrative process would be futile because the agency is biased or has predetermined the issue; or (4) where substantial constitutional questions are raised. Id. It is undisputed that a state court has the authority to release a pretrial detainee. A person who is detained in Illinois may challenge his or her detention by seeking judicial review of his or her bond. 725 Ill. Comp. Stat. Ann. 5/110-6. On March 23, 2020, in response to an emergency petition filed by the Cook County Public Defender, the Presiding Judge of the Cook County Circuit Court's Criminal Division issued an order setting out an expedited bond hearing process that applied to seven designated classes of detained persons. Def.'s Resp. to Mot. for TRO, Ex. E (dkt. no. 31-1) at 1–2. The seven classes included those at an elevated risk of contracting coronavirus due to their ages or underlying medical conditions—that is, the putative members of subclass A. Id. The expedited hearings took place from March 24 through March 27. Id. at 3–5. Although the expedited hearings do not appear to be currently ongoing, Cook County's courts are still available for emergency matters, and judges are hearing motions to review or reduce bail daily at all locations where court is held. Def.'s Supp. Resp. to Mot. for TRO, Ex. A (dkt. no. 41-1) at 1. In the TRO decision, the Court concluded that the plaintiffs—who both were named as representatives of subclass A—could not show that they exhausted available state remedies before petitioning for habeas corpus because they did not "contend that
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they sought expedited bond hearings or initiated any sort of state proceedings challenging their bonds." Mays, 2020 WL 1812381, at *6. The Court declined to excuse exhaustion because it found that the state's existing bond reduction process is "anything but futile"; the plaintiffs did not show that the process is "unduly timeconsuming in a way that undermines their claimed constitutional rights"; and they did not show that state courts cannot remedy the type of constitutional violations they raise. Id.
After the Court issued its decision, the plaintiffs' counsel learned that Foster had sought release in the Circuit Court of Cook County through an expedited bond hearing. (The plaintiffs do not contend that Mays separately sought release in state court prior to the filing of this lawsuit.) Foster is charged with domestic battery, robbery, and unlawful restraint. Pls.' Renewed Mot. for Prelim. Inj., Ex. F (dkt. no. 55-6) at ECF p. 3 of 17. His bail was set at $50,000, requiring him to post $5,000 to be released, which he is unable to afford. Id. In his motion to reduce bond, he described his serious medical conditions and explained that they place him at a heightened risk of becoming critically ill if he contracts coronavirus. Id. at ECF p. 4–5 of 17. He also argued that it would violate his constitutional rights to keep him in custody during the coronavirus pandemic. Id. at ECF p. 13 of 17. On April 2, 2020, a state trial judge heard and denied Foster's motion. See id. at ECF p. 16 of 17.
The plaintiffs argue that Foster has sufficiently presented his request to the state courts and should not be required to do more. They acknowledge that he has not exhausted all avenues of state relief: he could appeal the state court's denial of his motion to reduce his bond, but plaintiffs do not contend that he done so. They argue,

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however, that the Court should excuse exhaustion based on the futility of an appeal or the Court's equitable authority to excuse exhaustion. They contend that an appeal would take weeks to pursue, making appellate remedies practically unavailable to him in light of the urgency of the coronavirus pandemic and causing an unreasonable delay that would force him to continue to suffer the alleged harm. In support of this contention, they offer an affidavit from Lester Finkle, the Chief of Staff to the Cook County Public Defender, who explains the procedure for interlocutory appeals of denials to modify bail. Pls.' Renewed Mot. for Prelim. Inj., Ex. C (dkt. no. 55-3). Under Illinois Supreme Court Rule 604(c), before a defendant can file such an appeal, he must file a verified motion in the trial court providing certain information about himself. Id. ¶ 2. Only after the trial court denies the verified motion can the defendant file an appeal. Id. The affidavit submitted by the plaintiffs reflects that this process typically takes two to four weeks. Id. ¶ 5. After that, if the appellate court denies the defendant's appeal, he can seek discretionary review in the Illinois Supreme Court. Id. ¶ 3. Based on this information, the plaintiffs argue that their state-court remedies are futile or practically unavailable and that requiring them to pursue these remedies would unfairly prejudice them.
The plaintiffs' contentions are not persuasive. Their only evidence, Finkle's affidavit, describes how long such an appeal would take under ordinary circumstances. But here we are not dealing with not ordinary circumstances. The affidavit does not adequately show how the state appellate process would be expected to work for a medically vulnerable detainee claiming that due to a global pandemic that has infiltrated the Jail, he faces immediate risk of serious health consequences unless his bail is

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reduced. We know the state courts are capable of dealing with emergency requests of this type promptly and efficiently; Cook County trial court judges dealt quickly and efficiently with hundreds of such requests in late March, and they continue to do so now. There is no reason to believe that the Illinois Appellate Court would treat such an appeal as an ordinary, run-of-the-mill bail issue and would refuse to deal with it promptly. Although a court may excuse exhaustion in the unusual case where a state process would cause an unreasonable delay, see, e.g., Gonzalez, 355 F.3d at 1016, the plaintiffs have not established that this is so in the present situation.
The plaintiffs also contend that the existing bond review processes provide no effective remedy for the claims that the class members advance in this case. Specifically, they contend that the Illinois statute governing bail, 725 Ill. Comp. Stat. Ann. 5/110-5, does not require state courts to consider a detained person's medical health in deciding whether to set or reduce the amount of bail and that state judges making those decisions would not be expected to consider the medical risks at the Jail. But they point to no evidence that state courts are not permitted to consider detained persons' medical conditions, let alone that state courts reviewing bonds are not actively considering detained persons' medical conditions in light of the coronavirus pandemic. To the contrary, the evidence in the record suggests that state courts are considering the medical dangers the coronavirus presents to detained persons. As the Court indicated in its TRO decision, between early March and early April 2020, the Jail's population decreased by over 1,175 detainees, Mays, 2020 WL 1812381, at *6; since then, the population has decreased by at least 300 more detainees, see Def.'s Resp. to Renewed Mot. for Prelim. Inj., Ex. A (dkt. no. 62-1) at 1. An affidavit submitted by the

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plaintiffs reflects that this reduction in the Jail's population has occurred, at least in part, because state court judges have granted bond reductions. See Pls.' Renewed Mot. for Prelim. Inj., Ex. B (dkt. no. 55-2) ¶ 3 (state courts released 719 detainees through an expedited process for bond reconsiderations in light of the coronavirus pandemic). In short, the contention that state courts cannot or will not consider detained persons' medical conditions in bond review proceedings is unsupported. Accordingly, the Court concludes that the plaintiffs have not shown that the state courts do not provide an effective remedy for detained persons with medical conditions that place them at a high risk of severe illness or death if they contract coronavirus.
The plaintiffs also appear to argue that the state courts cannot provide an adequate remedy because, they contend, unlike the federal habeas claims in this case, state courts can consider factors other than medical need. That contention is based on an erroneous premise, which the Court will discuss momentarily, that a district court addressing a habeas corpus petition challenging jail conditions under section 2241 cannot or would not consider other factors such as whether a detainee poses a threat to public safety. The bottom line is that the plaintiffs have not shown that the bond reduction remedy offered by the state courts is any less effective than a federal remedy.
For these reasons, the Court concludes—as it did in its TRO decision—that the plaintiffs have no likelihood of success on the habeas corpus claim advanced by them on behalf the representatives of subclass A due to their failure to exhaust available state court remedies.
2. Representative action Even if the plaintiffs could establish some likelihood of success on their

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contention that the failure to exhaust state remedies should be excused, they would be unable to satisfy the criteria for a representative action. Although the Court need not actually certify a representative action at this point, before issuing a preliminary injunction it would need to find that the requirements for such an action conditionally would be met. Mays, 2020 WL 1812381, at *3 (collecting cases). Because the plaintiffs cannot satisfy those requirements, the representative class has no likelihood of success on the merits.
In the Seventh Circuit, the Federal Rule of Civil Procedure that governs class actions, Rule 23, does not apply to habeas corpus proceedings. Bijeol v. Benson, 513 F.2d 965, 967–68 (7th Cir. 1975); cf. Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010). But representative actions—which are analogous to class actions—on rare occasions can be brought in habeas corpus proceedings. Bijeol, 513 F.2d at 967–68; see also United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 220–21 (7th Cir. 1976); Kazarov v. Achim, No. 02 C 5097, 2003 WL 22956006, at *8 (N.D. Ill. Dec. 12, 2003); United States ex rel. Green v. Peters, 153 F.R.D. 615, 619 (N.D. Ill. 1994); Faheem-El v. Klincar, 600 F. Supp. 1029, 1033 (N.D. Ill. 1984). The Seventh Circuit has not "set down a strict formula which must be mechanically followed" before people in custody can bring a representative habeas corpus action. Morgan, 546 F.2d at 221. Instead, it has suggested that courts can look to the provisions of Rule 23 in determining whether a representative action is appropriate, though courts need not "precisely" comply with Rule 23. Id. n.5. The Court thus finds that Rule 23 is instructive in analyzing whether plaintiffs can bring a representative action. The parties seem to agree; they discuss the issue within the framework of Rule 23.

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To bring a class action, and by analogy a representative action, a plaintiff must show that the proposed class meets the four requirements of Rule 23(a): "numerosity, commonality, typicality, and adequate representation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). In addition, "the proposed class must satisfy at least one of the three requirements listed in Rule 23(b)." Id. at 345. The plaintiffs here rely on, or analogize to, Rule 23(b)(2), which applies when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2).
The parties dispute whether subclass A satisfies each requirement of Rule 23, as applied to representative actions, apart from numerosity. The Court discusses each disputed requirement in turn.
a. Commonality To establish that they are likely to satisfy the commonality requirement, the plaintiffs must show that there likely "are questions of law or fact common to" the members of subclass A. Fed. R. Civ. P. 23(a)(2). "That language is easy to misread." Wal-Mart, 564 U.S. at 349. "Commonality requires the plaintiff[s] to demonstrate that the class members have suffered the same injury." Id. at 349–50 (internal quotation marks omitted). In addition, "[t]heir claims must depend upon a common contention" for which the "determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. at 350. Thus "what matters . . . is not the raising of common ‘questions' . . . but rather, the capacity of a [representative] proceeding to generate common answers apt to drive the resolution of the litigation." Id.

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at 350 (emphasis omitted). "Where the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members, there is a common question." Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014).
Subclass A conditionally satisfies the commonality requirement because the plaintiffs likely can show that its members "suffered the same injury." See Wal-Mart, 564 U.S. at 349–50. Specifically, the members of subclass A can show that the Sheriff's response to the coronavirus pandemic gave rise to their habeas claim. In addition, the plaintiffs point to several questions the determination of which, they contend, will resolve issues that are central to the validity of their habeas claim. For purposes of commonality, the Court need consider only one: whether coronavirus presents so severe a risk of harm to some people in the Sheriff's custody such it is unconstitutional to confine them in in the Jail.6 In a representative proceeding, a common answer to that question likely would drive the resolution of the litigation by resolving a core issue underlying subclass A's request for a writ of habeas corpus.
The Sheriff contends that subclass A cannot satisfy the commonality requirement because its members seek habeas corpus relief that would require individual proceedings or determinations. But issues pertaining to the individualized nature of the desired injunctive relief go to the requirements of Rule 23(b), not commonality. See id.

6 The Court notes that the plaintiffs posed different questions in their motion for class certification than in their reply brief in support of their motion for a preliminary injunction. Compare Pls.' Mot. to Cert. Class (dkt. no. 6) at 7–8 with Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21–22. Which particular question the Court identifies as conditionally satisfying the commonality requirement makes no difference for the purpose of this opinion. Regardless, at least one question the plaintiffs pose in their reply brief would also satisfy the commonality requirement: whether detainees in the Jail, as a matter of due process, are entitled to practice social distancing consistent with people in the community at large.
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at 360–62; Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 379–80 (7th Cir. 2015). In other words, the commonality requirement of Rule 23(a) does not demand that the relief ultimately awarded to each plaintiff be the same. See id.; Suchanek, 764 F.3d at 756 (commonality of relief is not essential); In re IKO Roofing Shingle Prod. Liab. Litig., 757 F.3d 599, 602 (7th Cir. 2014) ("[The commonality requirement as discussed in] Wal– Mart has nothing to do with commonality of damages."). Nor is this a case in which the commonality requirement is not satisfied because individual plaintiffs experienced the harm in meaningfully different ways. Cf. Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497–98 (7th Cir. 2012) (class of disabled students did not meet commonality requirement where its members likely experienced alleged violations of federal and state law in different ways). The putative members of subclass A all experienced the alleged harm from the Sheriff's response to coronavirus in the same or similar ways, specifically their allegedly increased risk of exposure to the virus. In addition, all of them raise the same kind of claim, and their claims all involve a common question that would resolve a central issue of that claim.
The Court acknowledges that, in a case raising claims similar to the habeas corpus claims asserted in this one, another judge in this district recently took a different approach with regard to commonality. A putative representative class of convicted prisoners in Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660(N.D. Ill. Apr. 10, 2020), also sought habeas corpus relief and medical furloughs or home detentions under section 1983 based on an allegedly inadequate response to the coronavirus pandemic by the director of the Illinois Department of Corrections. Id. at *1–2. For the section 1983 claim, the court found the only common question "apt to drive the

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resolution of the litigation," id. at *15 (quoting Wal-Mart, 564 U.S. at 350), was "which class members should actually be given a furlough," id. That question did not satisfy the commonality requirement, the court found, because "individualized determinations" would be necessary to answer it. Id. The court also indicated that the habeas claim would not be "suitable for representative or class treatment" because "release determinations must be made on an individual basis regardless of the vehicle for considering and effectuating them." Id. at *21 n.15. The court did not clarify whether it based its finding that the habeas claim would be unsuitable for representative or class treatment on the commonality requirement or another Rule 23 consideration. See id.
This Court respects the court's decision in Money, which it cites as persuasive authority elsewhere in this opinion. But to the extent that the court in Money found that the putative classes failed to satisfy the commonality requirement because their requested relief would entail individualized determinations, this Court departs from the analysis in Money. As indicated, the commonality requirement does not mean that the relief ultimately awarded to each plaintiff must be the same. Thus whether the release determinations would need to be made on an individual basis does not factor into the Rule 23(a) commonality analysis.
The Court concludes, for the reasons stated above, that the putative class satisfies Rule 23(a)'s commonality requirement.
b. Typicality The Sheriff contends that the putative subclass does not meet Rule 23(a)'s typicality requirement. He does not explain why, and he is incorrect. The named plaintiffs' habeas corpus "claim is typical if it arises from the same event or practice or

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course of conduct that gives rise to the claims of other [subclass] members and is based on the same legal theory." Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018) (alteration omitted). "This requirement is meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large." Id. (internal quotation marks omitted). Typicality is satisfied for subclass A because the named plaintiffs have alleged the same injurious conduct stemming from the Sheriff's response to the coronavirus pandemic as the other members of the subclass and have advanced the same legal theory as the subclass at large.
c. Rule 23(b)(2) Rule 23(b)(2) is the sticking point for the habeas corpus plaintiffs' attempt to bring a representative action on behalf of subclass A. As indicated, Rule 23(b)(2) allows for class certification where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). It "applies only when a single injunction or declaratory judgment would provide relief to each member of the class," not "when each individual class member would be entitled to a different injunction." Wal-Mart, 564 U.S. at 360. The Sheriff contends that the putative subclass A does not satisfy Rule 23(b)(2) because the plaintiffs seek individualized relief. He suggests that any habeas corpus proceeding would need to account for each subclass member's individual circumstances, including, for example, the danger each detainee would pose to the public if released. The plaintiffs expressly concede that the relief would need to be at least partly individualized. They contend, however, that this could be achieved through

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"brief, individual proceedings" without defeating class certification. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 23; see also Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 16.
In actions where plaintiffs seek an injunction that "would merely initiate a process through which highly individualized determinations of liability and remedy are made," Rule 23(b)(2) is not satisfied. Jamie S., 668 F.3d at 499 (7th Cir. 2012) (injunction that established a system for identifying disabled children and implementing individualized education plans and remedies did not satisfy Rule 23(b)(2) because it "merely establishe[d] a system for eventually providing individualized relief"). Compare id. and Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 (7th Cir. 2011) (in case challenging insurer's performance of hail storm damage appraisals, injunction requiring class-wide roof reinspection did not satisfy Rule 23(b)(2) where it "would only initiate thousands of individualized proceedings to determine breach and damages") with Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chi., 797 F.3d 426, 441–42 (7th Cir. 2015) (proposed class was maintainable under Rule 23(b)(2) where plaintiffs asked the court for a declaration that a school board's policies violated Title VII and prospective relief including a moratorium on a challenged practice and the appointment of a monitor).
The plaintiffs concede that issuing writs of habeas corpus in this case would entail individualized proceedings but not that Rule 23(b)(2) precludes them from proceeding on a representative basis. They suggest that the type of supposedly brief, individualized proceedings they seek "have long been commonplace in class litigation." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 23. But the cases

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they cite to support that proposition are distinguishable from this one. Both Barnes v. District of Columbia, 278 F.R.D. 14 (D.D.C. 2011), and Dunn v. City of Chicago, 231 F.R.D. 367 (N.D. Ill. 2005), amended on reconsideration, No. 04 C 6804, 2005 WL 3299391 (N.D. Ill. Nov. 30, 2005), involved individualized proceedings on damages under Rule 23(b)(3), not individualized proceedings for injunctive relief under Rule 23(b)(2). See Barnes, 278 F.R.D. at 19–23; Dunn, 231 F.R.D. 367, at 375–78. Dunn also involved class members who had variations in how they experienced the constitutional violations—an issue the court properly discussed as part of the commonality analysis, not the Rule 23(b)(2) analysis. See id. at 372.
Even if the plaintiffs did not concede it, individualized proceedings would be required for writs of habeas corpus that the plaintiffs seek because the Prisoner Litigation Reform Act (PLRA) applies to their habeas corpus claims. Under the PLRA, in tailoring any prospective or preliminary injunctive relief "in any civil action with respect to prison conditions," a court must "give substantial weight to any adverse impact on public safety," among other considerations. 18 U.S.C. § 3626(a)(1)(A), (a)(2). The PLRA defines "civil action with respect to prison conditions" as "any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison." Id. § 3626(g)(2). Thus if the plaintiffs' habeas claims constitute civil actions as defined by the PLRA, the Court would need to give substantial weight to the public safety of granting writs, which would require consideration of, among other things, any danger each individual member of subclass A poses to the public.

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As the Court indicated in its TRO decision, the question of whether detained persons can even use a section 2241 petition to challenge the conditions of their confinement has divided courts. Mays, 2020 WL 1812381, at *6 (comparing, e.g., Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (a prisoner may challenge the conditions of his confinement in a federal habeas corpus petition) and Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (same) with Spencer v. Haynes, 774 F.3d 467, 469–70 (8th Cir. 2014) (section 2241 petitions may not challenge conditions)). The Seventh Circuit has expressed a "long-standing view that habeas corpus is not a permissible route for challenging prison conditions," at least when a prisoner's claim does not have "even an indirect effect on the duration of punishment." Robinson v. Sherrod, 631 F.3d 839, 840–41 (7th Cir. 2011). But the Seventh Circuit has also noted that "the Supreme Court [has] left the door open a crack for prisoners to use habeas corpus to challenge a condition of confinement." Id. at 840 (quoting Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005)) (citing Nelson v. Campbell, 541 U.S. 637, 644–46 (2004); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Preiser v. Rodriguez, 411 U.S. 475, 499–500 (1973)).
In the TRO decision, the Court said that it did not need to decide the question of whether the plaintiffs could challenge conditions of confinement in a habeas corpus proceeding definitively at the time but stated that were it "required to address this point, [the Court] would not consider it to be an absolute bar to plaintiffs' motion for a temporary restraining order." Mays, 2020 WL 1812381, at *6. The Court stated that "[t]he plaintiffs' claims, as they have framed them, do bear on the duration of their confinement (they contend, ultimately, that they cannot be held in the Jail consistent

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with the Constitution's requirements), and they are not the sort of claims that are, or can be, appropriately addressed via a claim for damages." Id.
But the plaintiffs' claims also bear on the conditions of their confinement: they challenge the constitutionality of the conditions in the Jail during the coronavirus pandemic, and they contend that the conditions are so deficient that it is unconstitutional for subclass A to be confined at the Jail. The Seventh Circuit has not expressly addressed whether the PLRA applies to habeas corpus petitions that involve conditions of confinement, but it has not foreclosed the application of the PLRA to such petitions. Cf. Walker v. O'Brien, 216 F.3d 626, 634 (7th Cir. 2000) (stating that actions "brought under section 2241 . . . as habeas corpus petitions are not subject to the PLRA"—but not addressing such petitions that challenge the conditions of confinement); see also Thomas v. Zatecky, 712 F.3d 1004, 1005 (7th Cir. 2013) (Walker holds, among other things, "that a collateral attack under § 2241 or § 2254 is not a 'civil action' for the purpose" of the PLRA (emphasis added)). By specifying that a "civil action with respect to prison conditions . . . does not include habeas corpus proceedings challenging the fact or duration of confinement in prison," the language of the PLRA appears suggests that it may cover other types of habeas corpus proceedings, including, potentially, those challenging the conditions of confinement. See Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017) (courts should interpret a statute in a way that would "give effect, if possible, to every clause and word"). And at least some courts addressing the issue have suggested that the PLRA applies to habeas corpus petitions involving the conditions of confinement. See Jones v. Smith, 720 F.3d 142, 145, 145 n.3 (2d Cir. 2013) (the PLRA does not apply to "habeas petition[s] seeking to overturn a

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criminal conviction or sentence" but presumably would apply to conditions-ofconfinement habeas claims brought under section 2241); Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir.) (habeas corpus petitions challenging conditions of confinement "would have to be subject to the PLRA's . . . rules, as they are precisely the sort of actions that the PLRA sought to address"), on reh'g, 159 F.3d 591 (D.C. Cir. 1998).
Accordingly, the Court concludes that the PLRA applies to the plaintiffs' habeas corpus claim. The PLRA's mandate that a court "give substantial weight to any adverse impact on public safety" before issuing preliminary injunctive or prospective relief thus would apply to the habeas corpus claim. See 18 U.S.C. § 3626(a)(1)(A), (a)(2). To do so, the Court would need to consider the circumstances of the detained persons and any threat they pose to public safety, which plainly would vary from one person to another. This is a process that would render the claim unsuitable to certification under Rule 23(b)(2) or its analogy for representative actions.
The plaintiffs also state, in two sentences found at the very end of a small-type, twenty-four-line footnote, that a release order would not require a court to resolve individualized questions regarding safety because such an order would give the Sheriff discretion on which detained persons to release. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21 n.16. The plaintiffs make this point with respect to commonality for their section 1983 claim, not on the question of whether the habeas corpus claim may be handled on a representative basis. They nowhere attempt to explain how the Court could condition the issuance of writs of habeas corpus on detainee-specific decisions made by the Sheriff. As this Court stated in its TRO decision, "[t]he issuance of [a] writ of habeas corpus through a section 2241 petition is a

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federal remedy (in other words, it does not depend on state law)." Mays, 2020 WL 1812381, at *7. Nor could the issuance of a writ depend on subsequent decisions by a detained person's custodian. The habeas corpus claim proceeds against the custodian based on the fundamental, long-standing rule that a person in custody "may be liberated if no sufficient reason is shown to the contrary." Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)). The only remedy available for a habeas corpus claim is liberation of the person in custody. See id. It is difficult to imagine a writ of habeas corpus that would tell a jailer to release the petitioner—unless he decides it would not be a good idea to do so. Plaintiffs offer no authority supporting the proposition that a writ of habeas corpus could appropriately be issued in this way.
In sum, though representative habeas corpus actions do not need to comply "precisely" with Rule 23, Morgan, 546 F.2d at 221 n.5, the plaintiffs cannot meet the requirements for representative treatment.7
Because the plaintiffs' habeas corpus claims founder on the exhaustion requirement, and because they have not established that the claims may be pursued on a representative basis, their representative action on behalf of subclass A has no likelihood of success on the merits. Accordingly, the plaintiffs' request for the Court to

7 The Court acknowledges that this is different from the conclusion it reached in the TRO decision, in which it conditionally certified subclass A. See Mays, 2020 WL 1812381, at *4. But that was, of course, a provisional decision. And even for a nonconditionally certified class, a court may alter or amend an order granting class certification at any point before final judgment. Fed. R. Civ. P. 23(c)(1)(C); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (class certification order is "inherently tentative," and a district court “remains free to modify it in the light of subsequent developments in the litigation").
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release medically vulnerable members of subclass A on unsecured or non-monetary bail conditions pending review of their habeas corpus claims is moot. B. Section 1983 claim
The Court next addresses the question of likelihood of success on the plaintiffs' section 1983 claim, dealing with conditional class certification first, followed by the merits. The Court then addresses certain provisions of the PLRA as applied to the section 1983 claim.
1. Conditional class certification For their section 1983 claim, the plaintiffs seek class-wide relief in the form of a preliminary injunction. But because the plaintiffs only recently filed the lawsuit, there has not yet been a class certification ruling. As the Court indicated in its TRO opinion, "[t]his does not foreclose the possibility of relief for the plaintiffs at this stage, because a district court has general equity powers allowing it to grant temporary or preliminary injunctive relief to a conditional class." Mays, 2020 WL 1812381, at *3 (citing Lee v. Orr, No. 13 C 8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013); Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 2020); Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012); Howe v. Varity Corp., 896 F.2d 1107, 1112 (8th Cir. 1990)). "Furthermore, Federal Rule of Civil Procedure 23(b)(2) 'does not restrict class certification to instances when final injunctive relief issues' and permits certification of a conditional class for the purpose of granting preliminary injunctive relief." Id. (quoting Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)). As indicated, to bring a class action a plaintiff must show that the proposed class meets the four requirements of Rule 23(a): "numerosity, commonality, typicality, and

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adequate representation." Wal-Mart, 564 U.S. at 349. In addition, "the proposed class must satisfy at least one of the three requirements listed in Rule 23(b)." Wal-Mart, 564 U.S. at 345. The plaintiffs rely on Rule 23(b)(2).
As an initial matter, the Court must clarify the scope of the class or subclasses for which the plaintiffs have sought certification. They assert count 1 under section 1983 on behalf of all putative members of a class consisting of "all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic." Compl. (dkt. no. 1) ¶ 60. In their reply brief in support of their motion for a preliminary injunction, however, the plaintiffs indicate that they also request injunctive relief for claims under section 1983 specifically for the putative members of proposed subclass B, which consists of "all people who are currently housed on a tier where someone has already tested positive for the coronavirus," id. ¶ 62. See, e.g., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 29 (requesting the transfer of members of putative subclass B). Accordingly, the Court takes this as meaning that, with respect the section 1983 claim, the plaintiffs seek injunctive relief on behalf of both the overall class and subclass B.
The parties dispute whether the class and subclass B satisfy each requirement of Rule 23, except for numerosity. The Court's analysis earlier in this opinion finding that subclass A (the subclass seeking habeas relief) satisfies the typicality and commonality requirements apply to the overall class and subclass B as well. Specifically, the class and subclass B satisfy the commonality requirement because their members "have suffered the same injury" and their claims "depend upon a common contention" for which class action proceedings will "generate common answers apt to drive the

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resolution of the litigation." Wal-Mart, 564 U.S. at 350 (emphasis omitted). As with subclass A, the claims members of the class and subclass B raise at least one common question that satisfies Rule 23(a)'s commonality requirement: whether coronavirus presents so severe a risk of harm to those in the Sheriff's custody that their conditions of confinement are unconstitutional. For the reasons previously discussed, Rule 23(a)'s commonality requirement does not involve whether each member of the class would be entitled to identical relief.
The Class and subclass B also satisfy Rule 23(a)'s typicality requirement. Each member's section 1983 claim arises from the Sheriff's response to the coronavirus pandemic—"the same event or practice or course of conduct"—and "is based on the same legal theory." See Lacy, 897 F.3d at 866 (alteration omitted).
The Court's analysis under Rule 23(b)(2), however, differs from its analysis regarding the habeas corpus claim. Again, Rule 23(b)(2) allows for class certification where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). It "applies only when a single injunction or declaratory judgment would provide relief to each member of the class," not "when each individual class member would be entitled to a different injunction." Wal-Mart, 564 U.S. at 360.
A good deal of the injunctive relief that the plaintiffs seek would provide relief to the entire class via a single order. Specifically, on behalf of the overall class, the plaintiffs request a single order mandating social distancing and/or extending the TRO or converting it to a preliminary injunction, which would provide the same relief to each

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class member. Accordingly, the class satisfies the requirements of Rule 23(b) to the extent the plaintiffs request relief under section 1983 mandating social distancing and/or extending the TRO or converting it into a preliminary injunction.
The plaintiffs' requests for prisoner transfers and/or releases on behalf of subclass B, however, likely would entail individual determinations to some degree. The parties do not dispute that the PLRA applies to the plaintiffs' section 1983 claim or that the 1983 claim involves prison conditions. As discussed earlier with regard to the habeas corpus claim, before granting prospective or preliminary injunctive relief on the section 1983 claim, the PLRA requires the Court to "give substantial weight to any adverse impact on public safety," in addition to making other findings. 18 U.S.C. § 3626(a)(1)(A), (a)(2). As indicated, the Sheriff contends that these individual determinations prevent certification under 23(b)(2). As the Court has discussed, the plaintiffs contend (albeit only in a footnote) that a court would not be required to make those individual determinations because a court could grant a single injunction while delegating those questions to the Sheriff. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21 n.16; see also Brown, 563 U.S. at 537–38 (three-judge court adequately considered "public safety by leaving" decision "of how best to comply with its population limit to state prison officials"). The Court recognizes that analysis of whether the Sheriff may exercise discretion in carrying out a transfer or release order may be different for the section 1983 claim. Among other differences, a petition for habeas corpus contemplates a singular form of relief with regard to habeas—release from custody—whereas a court has a broader spectrum of possible relief under section 1983. See Rumsfeld, 542 U.S. at 435; Preiser, 411 U.S. at 484–86, 489. The range of

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injunctive relief available under section 1983 may allow courts to "leave details of implementation to [a] State's discretion by leaving sensitive policy decisions to responsible and competent policy state officials." See, e.g., Brown, 563 U.S. at 538. The Court need not decide that issue now, however, because, as it will explain later in this opinion, at this point it concludes that the predicate under the PLRA for convening a three-judge court or ordering prisoner transfers has not been established.
In sum, the Court conditionally certifies the class to the extent the plaintiffs request relief under section 1983 requiring social distancing and/or extending the TRO or converting it to a preliminary injunction. The Court declines to decide whether subclass B satisfies the requirements of Rule 23(b) because it is not necessary to do so at this time.
2. Likelihood of success on the merits The injunctive relief requests remaining for determination are the class's requests to require social distancing throughout the Jail and (it appears) advance identification and further screening of detained persons with conditions that make them more vulnerable to severe health consequences from coronavirus disease, as well as their request to convert the TRO to a preliminary injunction. (The Court addresses in later sections the plaintiffs' request to require the Sheriff to transfer detainees out of the Jail and to convene a three-judge panel.) The claims of the class arise under the Due Process Clause of the Fourteenth Amendment. "When a state actor [ ] deprives a person of his ability to care for himself by . . . detaining him . . . , it assumes an obligation to provide some minimum level of well-being and safety." Johnson v. Rimmer, 936 F.3d 695, 706 (7th Cir. 2019) (quoting

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Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir. 1998)). The Due Process Clause requires a jailer to provide a pretrial detainee with food, shelter, and basic necessities, including reasonably adequate sanitation, ventilation, bedding, hygienic materials, and utilities, Hardeman v. Curran, 933 F.3d 816, 820 (7th Cir. 2019), and to "meet[ ] the person's medical needs while he is in custody," Johnson, 936 F.3d at 706. More broadly, the Due Process Clause protects pretrial detainees, who "have not been convicted of anything," Miranda v. County of Lake, 900 F.3d 335, 350 (7th Cir. 2018), from conditions that "amount[ ] to punishment." Kingsley v. Hendrickson, 135 S. Ct. 2466, 247 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)); Hardeman, 933 F.3d at 823.
Here there is no question that the plaintiffs' claims involve conditions that are sufficiently serious to invoke the Fourteenth Amendment; the Sheriff does not argue otherwise. A pretrial detainee may establish a Fourteenth Amendment violation based on a condition, or combination of conditions, posing an "unreasonable risk of serious damage to [his] future health." Henderson v. Sheahan, 196 F.3d 839, 847 (7th Cir. 1999) (decided under Eighth Amendment "deliberate indifference" standard). See Helling v. McKinney, 509 U.S. 25, 33, 35 (1993) (Eighth Amendment case; "exposure of inmates to a serious, communicable disease" that poses a risk of future harm is a deprivation sufficiently serious to invoke constitutional protections). This is precisely where persons detained in the Jail find themselves. The coronavirus is indisputably present in the Jail. And the persons detained there are housed in settings that facilitate its transmission. This is true throughout the Jail, given the close proximity in which even single-celled detained persons are housed and the fact that they occupy common areas

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like bathrooms, showers, and dayrooms where other inmates congregate or have been present. And it is particularly true for detained persons who are doubled celled and those who are still housed in the dormitory units, where dozens (or more) spend twentyfour hours per day, or close to it, in the same room. It is equally undisputed that persons are detained in these settings with the knowledge of the Sheriff and his personnel, who have assigned them to live in these quarters while aware of the risks of virus transmission. All of this, taken together, is sufficient for the plaintiffs to have well more than a "better than negligible chance," see Whitaker, 858 F.3d at 1046, of establishing the threshold requirement of their due process claim—conduct that the Sheriff knows puts detainees at a significant risk of serious harm from coronavirus. See Kingsley, 135 S. Ct. at 2472; Miranda, 900 F.3d at 353. Meeting this threshold requirement of the due process standard does not require an intent to cause harm; it requires only knowledge of "the physical consequences" of one's conduct. Kingsley, 135 S. Ct. at 2472.
The primary dispute before the Court, and the point on which the Sheriff focuses his defense, involves the second requirement of a due process claim. To succeed on their claim, the plaintiffs must show that the Sheriff's conduct in addressing the risks posed by exposure to coronavirus is objectively unreasonable in one or more respects. See, e.g., McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). At the preliminary injunction stage, however, the plaintiffs are not required to prove this definitively; they are required only to establish a reasonable likelihood that they will ultimately succeed in proving it.
The plaintiffs concede that the Sheriff and others have taken significant steps to

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reduce the Jail's population and to decrease the number of persons housed in groups or double celled. They argue, however, that the Sheriff's actions do not go far enough and that detained persons continue to be unreasonably exposed to a risk of serious harm. The plaintiffs contend that social distancing is not being enforced even in units where detained persons are single celled, given joint usage of showers, toilet facilities, and dayrooms. And, they say, social distancing is not even a possibility for the hundreds who are double celled or remain in dormitory units. The plaintiffs also contend that despite policies promulgated by the Sheriff, proper sanitation—in particular, frequent cleaning of surfaces and facilities used in common, distribution of cleaning materials to detainees, and so on—is not actually being carried out on the ground. Finally, the plaintiffs contend—and it is undisputed—that nothing has been done by the Sheriff to enable him to identify, in advance, detained persons with medical or other conditions that make them particularly vulnerable to serious illness should they contract the coronavirus.
The Sheriff argues that he and others have taken significant steps to reduce the risk to detained persons from coronavirus. One critical aspect of this is a very significant reduction in the overall population of the Jail, accomplished by bond reductions issued by judges and by expansion, to its limits, of the Sheriff's electronic home monitoring program. In addition, in recent weeks, there have been far fewer new detainees admitted on a daily basis than has been the case historically, presumably due to fewer arrests. At the same time, the Sheriff has taken steps to increase capacity, including by reopening previously shuttered buildings and parts of buildings within the Jail complex. Together, these actions have enabled the Sheriff to take further steps to

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separate persons who remain detained in the Jail. Specifically, a far greater percentage of detainees are now in cells by themselves. And far fewer are housed in the dormitory units than before, with many having been transferred to single-cell units. In addition, at the Sheriff's direction, detainees have been provided guidance regarding social distancing. The Sheriff has also instituted policies to enhance sanitation practices and to carry out these policies. He has also implemented the distribution of facemasks to certain detained persons—in particular, those who are in quarantine—consistent with the availability of supplies, and he has undertaken efforts to acquire more. (Some of this has taken place as a result of the TRO entered on April 9.)
It cannot reasonably be disputed that the Sheriff has undertaken a significant, and impressive, effort to safeguard detained persons in his custody from infection by coronavirus. And based on the record, including the testimony of Executive Director Miller at the April 23 hearing, the Court is satisfied that the Sheriff and his staff have acted in good faith, with the goal of protecting the people placed in his custody, consistent with his obligation to maintain security.
Were this an Eighth Amendment case involving convicted prisoners, the efforts the Court has just described likely would be the end of the story. To prevail in a case involving a convicted prisoner, a plaintiff is required to show that the prison official was deliberately indifferent to the risk of harm to the plaintiff—in other words, the official knew about but disregarded that risk. See, e.g., Orr v. Shicker, 953 F.3d 490, 499 (7th Cir. 2020); Garcia v. Armor Corr. Health Serv., Inc., 788 F. App'x 393, 395 (7th Cir. 2019). Were the plaintiffs in this case required to make that showing, they would be unable to prevail; the Sheriff has been anything but deliberately indifferent to the risk of

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harm to pretrial detainees from coronavirus. But because this is a case involving persons detained prior to an adjudication of
their guilt or innocence, the Sheriff's good intentions are not dispositive of the plaintiffs' claims. There is a critical difference between a claim regarding conditions of confinement brought by pretrial detainees like the plaintiffs and one brought by a convicted prisoner under the Eighth Amendment, who unlike a pretrial detainee can constitutionally be subjected to punishment. See Hardeman, 933 F.3d at 824 (Eighth Amendment standard is "more demanding"). The standard by which a court evaluates a claim by a pretrial detainee like the plaintiffs "is solely an objective one." Kingsley, 135 S. Ct. at 2473. The plaintiffs are not required to show that the Sheriff had an intent to punish or to harm them, id.; indeed, they need not show any sort of malicious or bad intent at all. Rather, what they are required to show—actually, on a preliminary injunction, simply establish a reasonable likelihood of showing—is that the Sheriff's conduct with respect to the particular condition has been objectively unreasonable in one or more respects. See McCann, 909 F.3d at 886. In applying this standard, a court "focus[es] on the totality of facts and circumstances" the defendant faced "to gauge objectively—without regard to any subjective belief held by the [defendant]—whether the response [to the conditions] was reasonable." Id.
The plaintiffs contend that the Sheriff's response to the coronavirus outbreak at the Jail has not been objectively reasonable or sufficiently protective of the people in his custody, at least with respect to the issues currently before the Court—social distancing, sanitation, and identification and monitoring of highly vulnerable detainees. In evaluating the plaintiffs' contentions, the Court assesses objective reasonableness

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"from the perspective of 'a reasonable [official] on the scene,' based on what the [official] knew at the time." Mays, 2020 WL 1812381, at *9 (quoting Kingsley, 135 S. Ct. at 2473). The question, in the present context, is whether the Sheriff "acted reasonably to mitigate the risks to [the] health and safety of detainees." Id. (citing Hardeman, 933 F.3d at 825; Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)). And in determining the reasonableness of the Sheriff's actions, the Court "must account for his legitimate interest in managing the Jail facilities," and it must "defer to policies and practices that 'are needed to preserve internal order and discipline and to maintain institutional security.'" Id. (quoting Kingsley, 135 S. Ct. at 2473); see Bell, 441 U.S. at 547.
The fact of the matter is that the Sheriff's actions have not eliminated the risk to detained persons; far from it. But this, too, is not dispositive. Although a jailer must make a reasonable effort to abate conditions that pose an excessive risk to the health or safety of the people in his custody, the fact that he fails to prevent actual harm does not mean that his response was unreasonable. See Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (applying Eighth Amendment deliberate indifference standard). More specifically, the Constitution does not require a detention facility to provide "foolproof protection from infection" by a communicable disease. Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (applying Eighth Amendment standard); see also Smith v. Sangamon Cty. Sheriff's Dep't, 715 F.3d 188, 191 (7th Cir. 2013) (applying Eighth Amendment standard; "Prison and jail officials are not required to guarantee [a] detainee's safety." (internal quotation marks omitted)). That said, the ongoing risk to detained persons at the Jail, confirmed by increases in the number who have tested positive for coronavirus and the death of six detained persons from coronavirus disease

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as of April 23, is the backdrop against which the Court must view the Sheriff's conduct. The Court begins with the question of social distancing. As the plaintiffs see it, a
policy that fails to fully implement social distancing throughout the Jail—which indisputably has not happened—cannot possibly be considered an objectively reasonable response to the coronavirus outbreak there. At least until full social distancing is enforced, the plaintiffs contend, detained persons face an unacceptably high risk of death or serious harm to their health.
The Sheriff's position is likewise simple and straightforward. His implementation of a coronavirus response plan at the Jail complies, he says, with the CDC Guidelines, and for this reason his actions have been objectively reasonable. The Guidelines, he points out, do not require social distancing in correctional facilities where it is not feasible given physical space, population, and staffing.8 The plaintiffs respond that the CDC Guidelines are not a surrogate for constitutional due process requirements.
To support his position that compliance with the CDC Guidelines should effectively be dispositive, the Sheriff cites Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001). There the Seventh Circuit held that a convicted prisoner could not show that prison officials had been deliberately indifferent to his lack of access to safe drinking water, because radium concentrations in the prison's drinking water were at a level that the U.S. Environmental Protection Agency deemed at the time to be safe. Id. at 472– 73. The court noted that because prisoners are not entitled to better quality of air,

8 Largely based on this aspect of the CDC Guidelines, the Court, in deciding the TRO motion, declined to require the Sheriff to enforce social distancing other than during the intake process, one very obvious point at which social distancing was not taking place. The TRO ruling, however, is neither final nor binding. The Court has reassessed the matter with the benefit of more thorough briefing and a more complete record.
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water, or environment than the general public, prisons do not have "a duty to take remedial measures against pollution or other contamination that the agencies responsible for the control of these hazards do not think require remedial measures." Id.
The Sheriff's reliance on Carroll is unavailing. First of all, the plaintiffs do not suggest any entitlement on the part of pretrial detainees to conditions that exceed health and safety standards applicable to the general public. But that aside, the CDC Guidelines, unlike the EPA standards relied upon in Carroll, do not say or suggest that compliance makes detained people safe. This is particularly so in view of the fact that the Guidelines include feasibility qualifiers, particularly in relation to social distancing. See CDC Guidelines at 1, 3, 4, 11. Given this limitation, the Guidelines are not the same as a safety standard set by a regulatory agency.
For their part, the plaintiffs suggest that the CDC Guidelines "shed no light" on whether the Sheriff's conduct has been objectively reasonable, in conformity with constitutional requirements. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 10 (quoting Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 1996)). The Court disagrees with this as well. The plaintiffs rely to a significant extent on Thompson. There the court, considering a claim of excessive force against a police officer—a claim also determined by a standard of objective reasonableness—stated that a policy on the use of force established by the police department was "completely immaterial [on] the question of whether a violation of the federal constitution has been established." Id. at 454. But later, in United States v. Brown, 871 F.3d 532 (7th Cir. 2017), the Seventh Circuit clarified that Thompson simply means that a police

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department's own policies do not establish the standard of what is reasonable for purposes of the Constitution. See id. at 537 ("Despite its strong language, Thompson should not be understood as establishing a rule that evidence of police policy or procedure will never be relevant to the objective-reasonableness inquiry."). The court explained in Brown that, in the fact-intensive objective reasonableness analysis, evidence of national or widely used police policies could be relevant to helping a factfinder understand how a reasonable officer might have behaved under the circumstances that faced the defendant. Id. at 538. The court noted that the relevance of such policy evidence may turn on the "factual complexity" of the circumstances facing the defendant, and it may be less relevant in circumstances in which a factfinder can rely on common sense to determine the reasonableness of conduct. See id.
Here—unlike, perhaps, a relatively simple excessive force claim against an arresting officer—the circumstances facing the Sheriff in operating the Jail are quite complex. In these circumstances, guidance from an expert body like the CDC is beneficial in assessing the objective reasonableness of the Sheriff's conduct in the face of an ongoing outbreak. Indeed, in Forbes, the Seventh Circuit concluded that a prison's response to a case of active tuberculosis in its facility had been objectively reasonable in part because it had implemented and effected the recommendations of the CDC. Forbes, 112 F.3d at 267.
In sum, the CDC Guidelines are an important piece of evidence to consider in assessing the Sheriff's conduct, but they cannot be appropriately viewed as dispositive standing alone. Indeed, the CDC's recommendations on tuberculosis were not dispositive in Forbes; the court also considered other facts—noting, for example, that

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the prison had only one case of active tuberculosis, "a far cry" from an outbreak. Id. As the Court has indicated, one reason why the CDC Guidelines are not appropriately viewed as dispositive of the plaintiffs' due process claims is the way in which they account for feasibility. Although feasibility may be a consideration in determining objective reasonableness, see Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010) (decided under deliberate indifference standard), no case of which the Court is aware sets it as a dispositive factor. That, however, is exactly what the CDC Guidelines do, at least if read as the Sheriff suggests: they set a feasibility or practicality limitation on social distancing practices that they also call "a cornerstone of reducing transmission of respiratory diseases such as COVID-19." CDC Guidelines at 4. One can certainly understand why the CDC, a public health body, has acknowledged these sorts of limits upon its ability to prescribe guidelines for managing jails. But from a constitutional-law standpoint, it is difficult to believe that "do what you can, but if you can't, so be it"9 satisfies a jailer's constitutional obligation to take objectively reasonable steps to mitigate known risks to the life and health of people in his custody who are detained awaiting determination of their guilt or innocence.
Currently the Sheriff is housing hundreds of detained persons under conditions that make social distancing completely impossible or nearly so, or at least very difficult. Those for whom it is completely impossible are the detainees who are double celled. Those for whom it is at least very difficult and likely impossible are detainees who are housed in dormitory units that are not operating at a greatly reduced capacity.

9 The Court does not intend by this to suggest that this is the attitude of the Sheriff, the Executive Director, or their staff. Here the Court is characterizing a legal argument, not any person's behavior.
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Specifically, a significant number of the existing dormitory units are operating at or greater than fifty percent capacity. Based on the record before the Court, social distancing is practically impossible in such units, and this cannot be completely attributed to detainee conduct or misconduct: if people are kept in groups in relatively close quarters, it is entirely predictable that they will have difficulty maintaining separation.
At the current stage of the pandemic, group housing and double celling subject detainees to a heightened, and potentially unreasonable and therefore constitutionally unacceptable, risk of contracting and transmitting the coronavirus. Such arrangements make it impossible or unduly difficult to maintain social distancing, a "cornerstone" of the reduction of coronavirus transmission among detainees. The Court, however, must account for and give deference to the Sheriff's interest in managing the Jail facilities and to practices that are needed to preserve order and discipline and maintain security. See Kingsley, 135 S. Ct. at 2473; Bell, 441 U.S. at 547. These include documented considerations that make group or double celling appropriate or necessary. Feasibility limitations imposed by existing or otherwise available physical facilities are also taken into account, though this is not and cannot be a controlling factor. In this regard, it is worth noting that despite general statements by both sides to the contrary, it does not appear, based on the evidence, that the Sheriff has yet hit the feasibility limit on getting detainees out of group housing, even if one considers only the Jail complex itself. See Apr. 23, 2020 Hearing Tr. at 57:2–19 (testimony by Executive Director Miller referencing the possibility of further moves of detained persons out of dormitories).
Based on the evidence submitted, the Court finds that the plaintiffs are

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reasonably likely to succeed on their contention that group housing or double celling of detained persons is objectively unreasonable given the immediate and significant risk to their life and health from transmission of coronavirus, except in the following situations:
• Persons detained in tiers or dormitories currently under quarantine following a positive test for the coronavirus within the tier or dormitory, as this makes it inadvisable to transfer them to other housing arrangements until the quarantine period has expired (what the Sheriff refers to as "quarantine tiers").
• Detained persons who have tested positive for the coronavirus and are under medical observation (what the Sheriff refers to as "isolation tiers"), a housing arrangement that the CDC Guidelines specifically authorize.
• Detained persons who have tested positive for coronavirus and are recovering (what the Sheriff refers to as "convalescent tiers"), which the CDC Guidelines likewise authorize.
• Double-celled or dormitory-housed detainees for whom there is a documented determination by a medical or mental health professional that single-celling poses a risk of suicide or self-harm.
• Persons detained housed in a dormitory unit that is at less than fifty percent capacity, which the record reflects will permit adequate social distancing.
• Detained persons committed, at the documented direction of a medical or mental health professional, to a group housing unit that is equipped for medical or mental health treatment, if but only if there is not available space in an appropriate housing or medical unit that permits full social distancing.
Detained persons housed in any of the listed "acceptable" arrangements will, however,

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need facemasks that are replaced at appropriate intervals and must be provided with instruction on how to use a facemask and the reasons for its use. They also must be instructed, at regular intervals, on the importance of social distancing.
The Court has omitted from the list above two categories of detained persons referenced in Executive Director Miller's affidavits and testimony: persons put into group housing or double celled because of conduct issues (including those who Miller referred to during his testimony as "our disorderly . . . population," Apr. 23, 2020 Tr. at 52:6) or for reasons associated with the PREA. On the record as it currently stands, the plaintiffs have a reasonable likelihood of succeeding on a contention that it is objectively unreasonable to effectively preclude social distancing for such persons. With regard to PREA detainees, the proposition that they cannot be single celled is counterintuitive, to say the least.10 And with regard to individuals with conduct issues, without more the Court cannot say that there is an objectively reasonable basis to hold them in a setting that does not permit adequate social distancing. With regard to detained persons in these categories, the Court is willing to entertain a properly-supported request by the Sheriff to include them in the category of persons who may be appropriately detained in group housing, perhaps with appropriate distancing.
Beyond what the Court has described, the plaintiffs have not established a reasonable likelihood of success on their due process claims. Specifically, the Court is not prepared to say that it is constitutionally inappropriate, in light of the coronavirus pandemic, to detain persons in the Jail in any form of group housing or to detain them in

10 This is so whether these persons are alleged perpetrators or likely victims, which is not clear from the record.
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single cells given the likelihood of multiple uses of common facilities and areas. This would be tantamount to saying that, in the present circumstances, the Constitution prohibits detaining people in jails. The plaintiffs have not established, and are not likely to be able to establish, that this is so.
Next, the Court addresses the plaintiffs' contentions regarding advance identification of detained persons who are especially vulnerable to severe illness or death if they contract the coronavirus. The Court remains unpersuaded that the plaintiffs have a reasonable likelihood of showing that this is objectively unreasonable and thus violative of those class members' constitutional rights. The plaintiffs' experts opined that screening is important so that vulnerable individuals can be monitored for symptoms. Miller explained, however, that any person with symptoms consistent with coronavirus disease is already provided immediate screening and treatment, and medical professionals treating such a person will have immediate access to his or her medical records (which include an inventory of medical conditions reported by the detained person upon intake or thereafter). Though, as the Court stated in its TRO decision, advance identification of persons with heightened vulnerability would appear to be a good practice and perhaps a best practice, the plaintiffs have not shown that failing to do so is, under the circumstances, objectively unreasonable.
Finally, the Court addresses the plaintiffs' request for extension of the TRO. The TRO required the Sheriff to establish and implement a policy regarding coronavirus testing; provide cleaning supplies to detainees and staff and soap and/or hand sanitizer to detained persons; establish and implement a policy regarding sanitization of frequently touched surfaces; and provide facemasks to all detained persons who are

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quarantined. Mays, 2020 WL 1812381, at *14–15. The plaintiffs ask the Court to convert these requirements into a preliminary injunction. The Sheriff argues that the Court need not extend or convert the TRO because he has complied with it and continues to do so.
A court "retains the power to grant injunctive relief" even after the defendant ceases the allegedly unlawful conduct. Milwaukee Police Ass'n v. Jones, 192 F.3d 742, 748 (7th Cir. 1999); see also United Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 563 F.3d 257, 275 (7th Cir. 2009). The moving party must show that such relief still is required. Milwaukee Police Ass'n, 192 F.3d at 748. "The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." Id. (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)); see also United Air Lines, Inc., 563 F.3d at 275 ("The court may consider how easily former practices might be resumed at any time in determining the appropriateness of injunctive relief."). Where the cessation of an allegedly wrongful activity occurred "only after a lawsuit has been filed," a district court is "within its discretion" to find that the cessation was "not voluntary, and that even a voluntary cessation is not determinative." Id.
Although the Sheriff appears to have complied with the TRO, the Court cannot say that the constitutional violations the Court sought to address will not recur absent an extension of the TRO's requirements. The Sheriff's actions to develop policies on sanitation and coronavirus testing, distribute soap and cleaning supplies, and distribute facemasks to detained persons who are quarantined—at least those done after the April 9 TRO—cannot be said to have been undertaken entirely voluntarily. Rather, they were

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done in response to the TRO, and there is at least some evidence of problems in carrying out the TRO's directives. In addition, without a court order, there is at least a possibility that these important measures could slip to the wayside, despite the Sheriff's best intentions, as he works to manage the complexities of the Jail during this public health crisis. For these reasons, the Court concludes that it is appropriate to convert the TRO to a preliminary injunction.
3. Transfer The plaintiffs next request the transfer of members of subclass B out of the Jail "to another safe location in the Sheriff's custody." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 2. Until recently, they primarily suggested that such a location could include "home confinement or electronic home monitoring." Pls.' Resp. to April 3, 2020 Ord. (dkt. no. 26-1) at 17; see also Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 16–17 (requesting transfer without specifying the location to which detained people should be transferred). But in their most recent reply brief, they suggest that this also could include transfer to "another correctional space, a hospital or medical facility, a clinic, [or] administrative furlough." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 29. The Sheriff contends that, under the PLRA, only a three-judge court may order such transfers and that, regardless, he lacks the authority to transfer detainees to electronic home monitoring. The Court starts with the threshold issue: whether this Court may, on its own, order the transfer of detained persons as proposed by the plaintiffs. As indicated, under the PLRA, "[i]n any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge

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court." 18 U.S.C.§ 3626(a)(3)(B). The PLRA defines "prisoner release order" as "any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison." 18 U.S.C. § 3626(g)(4). It defines "prison" as "any Federal, State, or local facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law." Id. § 3626(g)(5). This definition plainly includes the Jail.
The plaintiffs contend that the transfer of detained persons that they seek would not be a prisoner release order because it would simply involve moving them from one place under the Sheriff's control to another place under his control. That misses the mark. Transfers to home confinement, administrative furlough, or electronic home monitoring in particular—which, at least up until they filed their reply brief, are the primary forms of transfer the plaintiffs have requested—would constitute prisoner release orders because they would have "the purpose or effect of reducing [the] population" of the Jail. Id. § 3626(g)(4); Money, 2020 WL 1820660, at *12 (transfers of prisoners to temporary medical furlough or home detention within the state's custody would constitute prisoner release orders because "the PLRA does not focus on custodial status under state law, nor does it say anything about whether the reduction of population is temporary or permanent."). Population reduction is the "whole point" of the transfers the plaintiffs seek—they propose to prevent or curb the spread of coronavirus to detained persons, and in particular those who are vulnerable, by reducing the Jail's population. See id. at *13.
The transfers sought by the plaintiffs would constitute prisoner release orders for

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an additional reason: they would direct the release of detained persons out of the Jail. See 18 U.S.C. § 3626(g)(4). The plaintiffs contend that, for people confined at home at the direction of a state authority, a home may amount to a prison within the meaning of the PLRA. To be sure, the list of institutions that qualify as prisons under the PLRA is not limited to those specified in the statute. Witzke v. Femal, 376 F.3d 744, 753 (7th Cir. 2004) (confinement in a drug rehabilitation halfway house qualified as confinement in a correctional facility under the PLRA). But, as defined by the PLRA, a prison is a facility. Id. § 3626(g)(5). The common definition of a facility is "a building or establishment that [provides a service or feature of a specified kind]."11 That does not appear to cover a person's home; a home, even one in which a person is residing subject to a court or law enforcement authority's order, is not a place that provides specified services or features.12 It is hard to see the PLRA's definition of "prison" stretching that far. In addition, even if home confinement and/or electronic home monitoring constitutes imprisonment under state law (an issue the Court need not decide), an order mandating the transfer of prisoners out of the Jail to confinement in their homes likely would constitute a prisoner release order because it would "direct[] the release [of prisoners] from . . . a prison" to another place of confinement, 18 U.S.C. § 3626(g)(4).
The plaintiffs, however, appear to take the position even if prisoner transfers

11 Facility, Oxford English Dictionary Online, https://www.oed.com/view/Entry/67465?redirectedFrom=facility& (last visited April 26, 2020). 12 Home, Oxford English Dictionary Online, https://www.oed.com/view/Entry/87869?rskey=8yYRsS&result=1&isAdvanced=false (last visited April 26, 2020).
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have the effect of reducing the prison population, a single-judge court may order them where the basis for the order is not crowding or overcrowding. They may be correct. One of the PLRA's requirements for the entry of a prisoner release order by a threejudge panel is that "crowding is the primary cause of the violation of a Federal right." 18 U.S.C. § 3626(a)(3)(E)(i). Some courts have concluded that single-judge courts can order the transfers of prisoners, at least to other facilities, where the purpose of the transfer involves the prisoners' medical needs or vulnerabilities. See Plata v. Brown, No. C01-1351 TEH, 2013 WL 12436093, at *9–10, 15 (N.D. Cal. June 24, 2013) (ordering the transfer to other institutions of certain medically high-risk categories of prisoners out of two prisons where they were at risk of contracting Valley Fever, a disease not spread through human-to-human contact); Reaves v. Dep't of Correction, 404 F. Supp. 3d 520, 523–24 (D. Mass. 2019) (denying a stay pending appeal and explaining why the PLRA permitted the court to order the transfer of a quadriplegic prisoner to a medical facility equipped to care for him in Reaves v. Dep't of Correction, 392 F. Supp. 3d 195 (D. Mass. 2019), appeal docketed, No. 19-2089 (1st Cir. Nov. 4, 2019)); see also Money, 2020 WL 1820660, at *12 n.11 (suggesting that a single-judge courts can order prisoner transfers for reasons other than crowding). This conclusion seems correct: because three-judge courts can order prisoner releases only where crowding is the primary cause of the violation of a federal right, 18 U.S.C. § 3626(a)(3)(E)(i), to ensure the vindication of people in custody's constitutional rights, the PLRA must be read to permit courts to order transfers where some other condition causes the violation of a constitutional right. See Plata, 2013 WL 12436093, at *9–10.
But a single judge's ability to order a prisoner transfer for reasons other than

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crowding makes no difference in this case: the primary basis for the transfers the plaintiffs request is to reduce crowding in the Jail. See Money, 2020 WL 1820660, at *13 (plaintiffs' suggestion that they did not seek a remedy for overcrowding "contradict[ed] the allegations of their complaint and their entire theory of the case"). To put it in simple terms, one of plaintiffs' core contentions is that their constitutional rights are being violated because social distancing, which they contend is crucial to protect their health, has not been or cannot be accomplished at the Jail. Social distancing is essentially the converse of overcrowding. Thus it is apparent that the plaintiffs' request for prisoner transfers or releases is based on overcrowding.
To be more specific, one of the central allegations in the complaint is that the crowded conditions in the Jail "ensure the continued[,] rapid, uncontrolled spread of COVID-19 within the Jail and beyond—because the Jail is not and cannot be isolated from the larger community" and "because the Jail is a crowded, congregate environment." Compl. (dkt. no. 1) ¶ 2; see also, e.g., id. at ¶¶ 20, 25–26, 30–35, 37–41, 46, 51. The plaintiffs hinge their legal arguments on the contention that "without a reduction of the Jail's population, the lives and safety of the persons confined there cannot be reasonably protected" because "social distancing is not possible with the current jail population." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 1; see also, e.g., Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 1 ("The virus is spreading rapidly in the jail . . ., and that is not surprising: People are sleeping within three feet of each other, eating and using showers in close proximity to each other, and touching the same surfaces."). They contend that the imperative of social distancing is an undisputed "medical necessity" and that "[a]ll of the evidence in this record supports

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that proposition." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 3. As indicated, they cite evidence from a range of sources—including the CDC, the governor of Illinois, the City of Chicago, and medical and epidemiological experts— reflecting that social distancing is among the most effective and important interventions to reduce the spread of coronavirus and protect public health right now. Id. at 3–5; see also, e.g., Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 4–8. And, crucially, they contend that social distancing at the jail is impossible because of its current population levels. Id. at 10 ("[I]f the current population of a jail unavoidably creates intolerable risk to life and health then the current population must change."); see also id. at 10–13; Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 6–8. In short, the plaintiffs are requesting transfers because social distancing is impossible; with that in mind, it is incongruous to contend that crowding is not the basis or primary basis for seeking compelled transfers. See Money, 2020 WL 1820660, at *13.
Citing United States v. Cook County, 761 F. Supp. 2d 794 (N.D. Ill. 2000), the plaintiffs contend that the PLRA applies only to prisoner release orders that are "explicitly related to population caps," not to all such orders stemming primarily from crowding. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 32 (citing id. at 796 –97). That interpretation stretches the statute's language too far. Even if "[s]ponsors of the PLRA were especially concerned with courts setting 'population caps,'" Plata, 2013 WL 12436093, at *10 (quoting Gilmore v. California, 220 F.3d 987, 998 n. 14 (9th Cir. 2000)), the PLRA's text does not limit prisoner release orders issued by three-judge courts to only orders that set population caps, see 18 U.S.C. § 3626(a)(3)(E). United States v. Cook County does not suggest otherwise. The three-

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judge court in that case found "that overcrowding [was] a primary cause of unconstitutional conditions at the jail" because it caused, among other things, "excessive force by guards, grossly unsanitary and unhealthy conditions, and grossly inadequate medical (including mental-health) care." Cook County, 761 F. Supp. 2d at 797. Although these conditions might have existed even without overcrowding, overcrowding made them worse. Id. at 797–98. Thus the purpose of the prisoner release order in Cook County was not merely to set prison caps but, rather, to address constitutional violations caused primarily by overcrowding. See id. The same is true in this case: the severe medical risks posed by coronavirus would exist even if the Jail was not crowded, but the plaintiffs contend the crowding at the Jail significantly enhances those risks and makes the outbreak more challenging to control. The purpose of a transfer order would be to address alleged constitutional violations stemming from coronavirus due to crowding in the Jail, and that is the type of order than only a three-judge court may issue.
4. Three-judge court The plaintiffs also have asked the Court to convene a three-judge court "to consider whether and to what extent to enter a prisoner release order." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 2. Under the PLRA, "[i]n any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court." 18 U.S.C.§ 3626(a)(3)(B). The Sheriff contends that the requirements for convening a three-judge court have not been met. The PLRA provides that no court may enter a prisoner release order unless two requirements are met. 18 U.S.C. § 3636(a)(3)(A). First, a court must have "previously

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entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order." Id. § 3636(a)(3)(A)(i) (the "previous order requirement"). In addition, the defendant must have "had a reasonable amount of time to comply with the previous court orders." Id. § 3636(a)(3)(A)(ii) (the "reasonable time requirement").
Together, these requirements ensure that a three-judge court's prisoner release order is a "last resort remedy." Brown, 563 U.S. at 514. A party requesting a prisoner release order and the convening of a three-judge court must file "materials sufficient to demonstrate" that both requirements have been met. Id. § 3636(a)(3)(C). A federal judge can also request sua sponte the convening of a three-judge court if both requirements are met. Id. § 3636(a)(3)(D). The judge need not consider the likelihood of whether a three-judge court would issue a prisoner release order. See Plata v. Schwarzenegger, No. C01-1351-TEH, 2007 WL 2122657, at *1 (N.D. Cal. July 23, 2007).
a. Previous order requirement The Court starts with the previous order requirement. It previously entered an order for less intrusive relief by issuing the TRO. Mays, 2020 WL 1812381, at *14–16. The Sheriff contends that the TRO does not satisfy the PLRA's previous order requirement because it did not include an order requiring social distancing. In the TRO decision, the Court found that the plaintiffs had failed "to show a reasonable likelihood of success on their contention that the Sheriff is acting in an objectively unreasonable manner by failing to mandate full social distancing." Id. at *10. The Court declined to order relief with respect to social distancing throughout the Jail but required the Sheriff

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to enforce social distancing in connection with the new detainee intake process. Id. at *14.
The previous order requirement is "satisfied if the court has entered one order [that] 'failed to remedy' the constitutional violation." Brown v. Plata, 563 U.S. at 514. Neither the statute nor the relevant case law suggests that a court must attempt all possible steps short of release before requesting the convening of a three-judge court. See 18 U.S.C. § 3636; Brown, 563 at 514–16. And the PLRA does not require a previous order involving a particular type of remedy; instead, it simply requires a previous order that attempted but failed to remedy the constitutional deprivation itself. See id. In Brown, the Supreme Court affirmed an order of a three-judge court mandating a population limit for California's prison system as a remedy for constitutional violations in two class actions, one involving a class of prisoners with serious mental disorders and the other involving prisoners with serious medical conditions. Id. at 499, 502. The Court found that district courts "acted reasonably when they convened a three-judge court," despite recent, ongoing plans to address the at-issue constitutional violations, because they "had a solid basis to doubt" that the "additional efforts . . . would achieve a remedy." Id. at 516.
In the TRO, the Court ordered relief less intrusive than a prisoner release order. Specifically, it required the Sheriff to establish and implement policies regarding coronavirus testing and sanitation in the Jail, implement social distancing during the new detainee intake process, provide adequate soap and/or hand sanitizer and sanitation supplies, and provide facemasks to all detained persons who are quarantined. Mays, 2020 WL 1812381, at *14–15. Because the TRO has not remedied

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the overall claimed constitutional violation—deficient conditions in the Jail during a pandemic—it satisfied the PLRA's previous order requirement.

b. Reasonable time requirement Additionally, before a three-judge court is convened under the PLRA, the defendant must have "had a reasonable amount of time to comply with the previous court orders," as indicated. Id. § 3636(a)(3)(A)(ii). This provision "requires that the defendant have been given a reasonable time to comply with all of the court's orders." Brown, 563 U.S. at 514 (emphasis added). In some situations, a court may need "to issue multiple orders directing and adjusting ongoing remedial efforts" while it "attempts to remedy an entrenched constitutional violation through reform of a complex institution." Id. at 516. "Each new order must be given a reasonable time to succeed, [and] reasonableness must be assessed in light of the entire history of the court's remedial efforts." Id. But a court may request the convening of a three-judge court even while its remedial efforts are ongoing; otherwise, a court unreasonably would have "to impose a moratorium on new remedial orders" before a three-judge court considers the issuance of a prisoner release. Id. In Brown, the Supreme Court found that defendants in the two consolidated cases had reasonable time to comply with court orders where one court had "engaged in remedial efforts" for five years and the other court had done so for twelve years. Id. Remedial efforts were ongoing when the district courts requested three-judge courts, but those ongoing efforts merely attempted "to solve the crisis" through the same "basic plan[s]" as earlier efforts. Id. at 515. In one case, a special master the district court
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appointed to oversee remedial matters had issued over seventy remedial orders. Id. The courts had no "assurance[s] that further, substantially similar efforts would yield success absent a population reduction." Id. Indeed, advances that had been made in one case were "'slip-sliding away' as a result of overcrowding." Id. (quoting courtappointed special master).
The plaintiffs contend that the Sheriff has had a reasonable time to comply with the Court's previous order. They have requested a preliminary injunction ordering social distancing, but, in light of the urgency of the situation, they also have requested the convening of a three-judge court to consider the question of prisoner release. The plaintiffs appear to contend that if an injunction directing social distancing does not remedy the alleged constitutional violations, then only the immediate release of prisoners by a three-judge court will achieve a remedy, so a three-judge court needs to be ready to issue a ruling as soon as that time comes. The Sheriff contends that he has not reasonably had time to comply with any such order because the Court has not directed him to implement social distancing throughout the Jail.
The Court recognizes that determination of what amounts to a "reasonable time" to comply with a court's previous orders may depend on the circumstances, and here the circumstances are extraordinary, involving an infectious virus that can be transmitted quickly from person to person. So here, perhaps, a "reasonable time" may amount to days or a small number of weeks, not years as may be the case in other situations. Undue delays in responding to the coronavirus pandemic may place detained persons' health and lives in imminent danger.
Unlike in Brown, however, the ongoing remedial efforts in this case might remedy

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the ongoing constitutional violation—which, to be clear, involves the objective reasonableness of the Sheriff's response to the coronavirus outbreak, not existence of coronavirus itself—if given adequate time. The Sheriff has offered evidence that may be understood to suggest that he is making a substantial effort to comply with the Court's order and attempt to improve the conditions of confinement at the Jail in response to the coronavirus pandemic. As detailed earlier in this opinion, he has complied with the TRO by implementing social distancing at intake; developing and implementing a plan to distribute soap, sanitizer, and cleaning suppliers more frequently; and providing facemasks to detained persons housed on tiers under quarantine. In addition, he has made efforts to spread out detainees within the Jail, even though the TRO did not mandate it. As detailed earlier, he has opened up previously closed units, doubled the number of persons housed in single-occupancy cells, attempted to ensure that detained persons are assigned beds in dorm units that are spaced more than six feet apart, and adopted various practices to encourage detained persons to practice social distancing in dorms and in common areas. As the Court has explained, it believes that the narrowly tailored relief it is ordering via this opinion appropriately addressed the claimed constitutional violations on which the plaintiffs have shown a likelihood of success. Unlike in Brown, the additional relief ordered in this decision is not based on the same "basic plan" as earlier efforts but rather takes a different and focused approach. Brown, 563 U.S. at 515. In short, it will require preventative public health measures that the Court has not previously ordered and that the Sheriff has not shown he has implemented.
Further, although the PLRA's previous order requirement refers to a single order,

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its reasonable time requirement uses the plural "orders." Compare 18 U.S.C. § 3626(a)(3)(A)(i) with id. § 3626(a)(3)(A)(ii); see also Brown, 563 U.S. at 514. Nothing in the statute or the relevant case law indicates that a court must convene a three-judge panel after issuing only one order. Rather, the case law reflects that a court can, and perhaps in some circumstances should, make additional efforts beyond a single TRO before convening a three-judge court to consider ordering the release of imprisoned or detained persons. See id. (releasing prisoners is a "last resort remedy"). This seems particularly true where, as here, a Court has a basis on which to issue an additional order that is not "substantially similar" to its previous order and thus can attempt a new approach to remedying the constitutional violation that might "yield success." Cf. Brown, 563 U.S. at 515.
For these reasons, the Court is not persuaded that it has given its less-intrusive orders "a reasonable time to succeed," Brown, 563 U.S. at 516; that the Sheriff has "reasonable amount of time to comply" with those orders, 18 U.S.C. § 3636(a)(3)(A)(ii); or that the Sheriff could have reasonable time to comply in light of the further efforts the Court is taking in this order to remedy the claimed constitutional violations. The Court concludes that the PLRA's reasonable time prerequisite for the convening of a threejudge court has not yet been satisfied.
For these reasons, the Court declines to request the convening of a three-judge court. 13

13 As the Court has previously advised the parties, however, immediately after the issuance of the TRO, the Court advised the chief circuit judge of the pendency of the case and the potential need, at some point, to convene a three-judge court.
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5. Irreparable harm In addition to showing a likelihood of success on the merits, the plaintiffs must show that they will likely suffer irreparable harm without a preliminary injunction. Whitaker, 858 F.3d at 1044. Irreparable harm is "harm that cannot be repaired and for which money compensation is inadequate." Orr v. Shicker, 953 F.3d 490, 502 (7th Cir. 2020) (internal quotation marks omitted). The plaintiffs must show more than a "mere possibility" of harm but not that harm has already occurred or is certain to occur. Whitaker, 858 F.3d at 1045. "[A] remedy for unsafe conditions need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33 (1993). The plaintiffs have satisfied this requirement. They have shown a likelihood that, without additional measures to expand and enforce social distancing and the continuation of measures aimed at enhancing sanitation of surfaces within the Jail and otherwise curbing the spread of coronavirus among detained persons, some of the class members will contract the virus. If they contract coronavirus, class members— particularly those over the age of sixty-five or with certain preexisting health conditions—risk severe health consequences, including death. These grave risks to health are not an insignificant possibility for the class members, all of whom are live in the Jail's congregate environment, where the coronavirus has been spreading for weeks and where detained persons—even those who sleep their own cells—share spaces like common areas and showers. Therefore, the plaintiffs have adequately shown a likelihood that they will suffer irreparable harm without a preliminary injunction. 6. No adequate remedy at law The plaintiffs also must show that they have no adequate remedy at law should

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the preliminary injunction not issue. Whitaker, 858 F.3d at 1046. They are not required to show that a remedy is "wholly ineffectual" but rather "that any award would be seriously deficient as compared to the harm suffered." Id. Where harm cannot be practicably remedied by monetary damages, there is no adequate legal remedy. See id.; Foodcomm Int'l v. Barry, 328 F.3d 300, 304 (7th Cir. 2003); see also W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1126–27 (N.D. Ill. 2018) (no adequate remedy of law to address harm from prolonging child's separation from parent). The plaintiffs have clearly shown that the risk of harm to their health and possibly their lives cannot be fully remedied through damages, and therefore they have shown that they have no adequate remedy at law.
7. Balancing of harms "Once a moving party has met its burden of establishing the threshold requirements for a preliminary injunction, the court must balance the harms faced by both parties and the public as a whole." Whitaker, 858 F.3d at 1054. The nature of the balancing analysis depends on the moving party's likelihood of success: the higher the likelihood, the more the balance tips in favor of granting injunctive relief. Id. Before issuing an injunction ordering a defendant to perform an affirmative act, which can impose "significant burdens on the defendant," a court must give "careful consideration [to] the intrusiveness of the ordered act, as well as the difficulties that may be encountered in supervising the enjoined party's compliance with the court's order." Kartman, 634 F.3d at 892 (discussing certification of a class seeking mandatory injunctive relief). The Sheriff argues that the balance of harms weighs against issuing a

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preliminary injunction because he is doing the best he can to contain the spread of coronavirus at the Jail, including, he contends, following the CDC Guidelines to the greatest extent possible. He argues that an order requiring him to implement more health and protective measures would be disruptive to his ongoing and persistent efforts to protect detainees from coronavirus. He also argues that the Court should defer to his expertise and judgment regarding the best policies and practices to implement at the Jail, particularly in light of the fundamental need for him to maintain internal security and order. See Bell, 441 U.S. at 547–48. The plaintiffs contend that the risk of severe health consequences or death to the class members is so grave that it tips the balance of harms in favor of granting a preliminary injunction. Additionally, the plaintiffs argue the public's interest in containing outbreaks of coronavirus favors granting injunctive relief.
The Court concludes that the balance favors granting preliminary injunctive relief to the plaintiffs to the limited extent contemplated by this order. First, as detailed above, the plaintiffs have presented ample evidence of conditions that pose an unreasonable risk of serious harm to the class members' health and, despite the laudable strides the Sheriff has made since the Court issued the TRO, at least some shortcomings in the Sheriff's mitigation of that risk. This evidence tips the balance in favor of injunctive relief because, as the Court has explained, the plaintiffs have far surpassed their burden of demonstrating a "better than negligible" likelihood of success on the merits. Whitaker, 858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). The interest of the public in containing the spread of coronavirus further tips the balance in favor of injunctive relief.

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As it did in issuing the TRO, the Court acknowledges the deference owed to the Sheriff in the operation of the Jail and in his development of internal procedures to maintain safety, order, and security and to response to this severe crisis. The Court recognizes the immense amount of time and work that the Sheriff and his staff have spent trying to respond to this crisis. The Court further recognizes that compliance with judicial orders impose burdens on the Sheriff and his staff, in no small part by requiring them to devote some of their limited time and resources to following a court's directives.
The Court has taken these considerations into account in ordering the limited relief described in this order. It has ensured that the relief is narrowly drawn, extends no further than necessary, and is the least intrusive means necessary to address the shortcomings discussed earlier in this opinion. The Court has tailored the relief to account for deference to the Jail's ongoing planning and efforts to address the risks associated with the coronavirus outbreak. The Court also has, as indicated earlier, taken into account the enhanced requirements for issuing what it has referred to as a "mandatory injunction." And the Court has concluded that it will not encounter significant obstacles in supervising the order despite its mandatory nature. Despite these considerations, the risk to the health and safety of detainees and others is sufficient to permit and require preliminary injunctive relief. C. Preliminary injunctive relief
For the reasons stated above, the plaintiffs have met the criteria for a preliminary restraining order with regard to at least parts of Count 1 of their complaint. The Court orders as follows and will also include this in a separate preliminary injunction order issued under Federal Rule of Civil Procedure 65(d).

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• The Sheriff shall maintain and carry out a policy requiring prompt coronavirus testing of: (1) detained persons who exhibit symptoms consistent with coronavirus disease, and (2) at medically appropriate times, detained persons who have been exposed to others who have exhibited those symptoms or have tested positive for coronavirus. With regard to the category (2), the Sheriff must acquire and maintain sufficient testing materials so that determination of the appropriateness of testing such persons is made pursuant to medical and public health considerations and not the availability of testing materials.
• The Sheriff shall enforce social distancing during the new detainee intake process, including continued suspension of the use of bullpens and other multiple-person cells or enclosures to hold new detainees awaiting intake.
• The Sheriff shall provide soap and/or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands.
• The Sheriff shall provide sanitation supplies sufficient and adequate to enable all staff and detainees to regularly sanitize surfaces and objects on which the virus could be present, including in all areas occupied or frequented by more than one person (such as two-person cells, as well as bathrooms, showers, and other surfaces in common areas). The Sheriff shall also maintain and carry out a policy requiring sanitization between all uses of frequently touched surfaces and objects as well as monitoring and supervision to ensure that such sanitization takes place regularly.
• The Sheriff shall provide facemasks to all detained persons who are quarantined—i.e., those who have been exposed to a detained person who is

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symptomatic (even if not coronavirus-positive). The facemasks must be replaced at medically appropriate intervals, and the Sheriff must provide the users with instruction on how to use a facemask and the reasons for its use. • The Sheriff shall establish by no later than April 29, 2020 and shall put into effect by no later than May 1, 2020 a policy precluding group housing or double celling of detained persons, except in the following situations:
o Persons detained in tiers or dormitories currently under quarantine following a positive test for the coronavirus within the tier or dormitory ("quarantine tiers");
o Detained persons who have tested positive for the coronavirus and are under medical observation ("isolation tiers");
o Detained persons who have tested positive for coronavirus and are recovering ("convalescent tiers");
o Double-celled or dormitory-housed detainees for whom there is a documented determination by a medical or mental health professional that single-celling poses a risk of suicide or self-harm;
o Persons detained housed in a dormitory unit that is at less than fifty percent capacity; and
o Detained persons committed, at the documented direction of a medical or mental health professional, to a group housing unit that is equipped for medical or mental health treatment, if but only if there is not available space in an appropriate housing or medical unit that permits full social distancing.

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• Detained persons housed in any of the listed "acceptable" arrangements must be provided with facemasks that are replaced at medically appropriate intervals. The detained persons must be provided with instruction on how to use a facemask and the reasons for its use. They also must be instructed, at regular intervals, on the importance of social distancing.
• On May 1, 2020, the Sheriff shall file a report regarding his compliance with the terms of the preliminary injunction. Finally, the Court will entertain submissions by the parties regarding the duration
of the preliminary injunction, in particular the social distancing provisions. Typically, a preliminary injunction lasts until the trial on the merits, but the order the Court is entering is predicated on an underlying condition—the ongoing pandemic—that, one can hope, will not last indefinitely. Under ordinary circumstances, there is nothing constitutionally inappropriate about housing detained persons in groups and allowing them to come into contact with each other. Currently we are not living in ordinary circumstances—hence the preliminary injunction—but once matters return to something approaching normal, it may be appropriate to loosen the requirements of the injunction. The Court (either the emergency judge or the assigned judge) will address this with the parties at a future date.
Conclusion The Court grants the plaintiffs' motion for preliminary injunction in part and denies it in part as set out in this Memorandum Opinion and Order [dkt. no. 55].

Date: April 27, 2020

________________________________ MATTHEW F. KENNELLY United States District Judge
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No. 20-1792 ____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT ________________________
ANTHONY MAYS, Individually and on behalf of a class of similarly situated persons, et al.,
Plaintiffs-Appellees, v.
THOMAS DART, Sheriff of Cook County,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Northern District of Illinois
No. 20-cv-2134—Matthew F. Kennelly, Judge. ____________________________________________________________
PLAINTIFFS-APPELLEES’ RESPONSE TO DEFENDANT-APPELLANT’S MOTION FOR STAY ____________________________________________________________

Attorneys for Plaintiffs-Appellees
Jon Loevy Sarah Grady* LOEVY & LOEVY 311 N. Aberdeen St., 3rd Fl. Chicago, IL 60607 (312) 243-5900 sarah@loevy.com * Counsel of Record

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INTRODUCTION This case concerns the danger COVID-19 poses to the health and safety of individuals at the Cook County Jail. There is no dispute about the deadly impact of COVID-19, which has killed more than 413,000 people. And there can be no dispute about the public health disaster that began to unfold at the Jail in early April, when it became the largest single-known source of infections in the nation. A recent peerreviewed study has found that more than 15% (1 in 6) of all COVID-19 cases in Illinois can be traced to the Jail. Ex. 1.1 After filing suit, Plaintiffs sought emergency injunctive relief to protect them from the Sheriff’s objectively unreasonable conduct that was putting them in jeopardy. Plaintiffs submitted voluminous evidence about what measures public health and medical experts had determined were necessary to protect against uncontrolled spread of COVID-19. The Sheriff did not dispute that these measures were necessary, but contended he had the situation “under control.” R.62 at 2. On April 9, the district court entered a TRO, granting some, but not all, of the measures Plaintiffs had requested. At that time, more than 400 detainees and staff had tested positive for COVID-19. On April 27, the district court entered a preliminary injunction, continuing the TRO relief and ordering the Sheriff to implement certain social distancing measures. At that time, 788 detainees and staff had tested positive for COVID-19, and six people had died. Apr. 23, 2020 Hr’g (Hr’g) at 142:16-143:3.

1 Plaintiffs submit this report pursuant to Rule 8(a)(2), which permits this Court to consider affidavits or other sworn statements regarding facts that may be in dispute.
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On June 5, nearly six weeks after the preliminary injunction and more than two months after the TRO, the Sheriff asked this Court for a stay of the preliminary injunction.2 The Sheriff raises no legitimate issue on which he is likely to prevail on appeal, and his assertion of irreparable harm is internally inconsistent and lacks evidentiary support. The district court’s denial of a stay was accordingly no abuse of discretion, but instead supported by uncontroverted evidence in the record, including the Sheriff’s own admissions and evidence. The motion for a stay should be denied.
FACTUAL BACKGROUND COVID-19 has no cure and no vaccine. The Centers for Disease Control (CDC) advises that the best way to prevent COVID-19 is to avoid exposure, by: (1) frequent handwashing, (2) social distancing, (3) wearing a mask, and (4) disinfecting surfaces. See R.1 ¶ 18 n.17 (citing “How to Protect Yourself,” CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html). On March 23, the Sheriff reported its first COVID-19 case at the Jail. R.31-2 at 3. By April 3, the day Plaintiffs filed suit, more than 200 staff and detainees had tested positive, and 14 detainees had been hospitalized. R.2 at 6. In their lawsuit, Plaintiffs Mays and Jackson asserted 42 U.S.C. § 1983 claims on behalf of a class of detainees at the Jail, as well as claims under 28 U.S.C. § 2241.

2 The Sheriff also seeks to stay all discovery in the case. But he offers no explanation as to why such a stay is appropriate, why he did not first seek this relief in the district court, or whether this Court even has jurisdiction to issue such a stay. Fed. R. App. P. 8(a); see also Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th Cir. 2012) (discussing pendent appellate jurisdiction).
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Plaintiffs immediately sought a TRO requiring the Sheriff to implement wellknown public health measures necessary to protect detainees from rampant spread of COVID-19. Id. at 15-16. In support of their request, Plaintiffs cited CDC guidance and testimony from five medical experts with substantial correctional experience, including three doctors who previously served as medical directors at the Jail. R.1-2 ¶¶ 1-5. These experts opined that the Sheriff needed to take action to protect detainees, whose health and safety were imminently threatened by the COVID-19 outbreak. Id. ¶¶ 28-37. They opined that the Sheriff must expand detainee testing, provide detainees masks, provide full, free access to hygiene and sanitation supplies, and implement social distancing throughout the Jail. Id. ¶¶ 29-35.
Plaintiffs also submitted declarations from recently released detainees (and individuals who had spoken with detainees), who reported that detainees were not provided adequate hygiene, cleaning supplies, or masks, they remained in close quarters where they could not socially distance, commonly-used surfaces were not regularly disinfected, and they were not being tested for COVID-19, even if they were suffering classic COVID-19 symptoms. R.1-4 through 1-21.
The Sheriff responded to Plaintiffs’ motion on April 6, raising no dispute about the measures necessary to protect detainees’ health and safety. R.29-1. The Sheriff simply argued that he was already taking those actions. Id. at 4.
On April 9, the district court entered a TRO “considerably narrower than the order the plaintiffs have requested.” R.48 at 3. The court weighed the parties’ evidence and determined Plaintiffs’ evidence established that “certain of the

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conditions created by the intentional actions of the Sheriff enable the spread of [COVID-19] and significantly heighten detainees’ risk of contracting the virus.” Id. at 18. The court specifically found that the Sheriff was not providing facemasks for detainees, was not providing detainees with adequate access to soap, and was not providing for sanitation of commonly-used spaces. Id. at 18-20. The court also found that the Sheriff had no COVID-19 testing policy for detainees and was not implementing social distancing during intake, where individuals are housed in crowded cells called “bullpens.” Id. at 24, 30-31. The court found these failures objectively unreasonable, given Plaintiffs’ evidence about COVID-19’s dangers and the steps necessary to protect against its uncontrolled spread, as well as the high number of infected individuals at the Jail. Id. at 18-20. At the time of the TRO, more than 400 detainees and staff had tested positive, one detainee had died, and the Jail was the largest known source of infections in the nation. Id. at 4.
In its TRO, the district court ordered the Sheriff to: (1) establish a policy requiring prompt COVID-19 testing for symptomatic detainees and (as practicable) detainees who had been exposed; (2) enforce social distancing during intake and suspend the use of bullpens; (3) establish a policy to ensure detainees could access hygiene and sanitation supplies sufficient for regular hand-washing and surface sanitization, and to require sanitization of frequently touched objects between uses; and (4) provide facemasks to detainees exposed to COVID-19. Id. at 34-36. The court denied all of Plaintiffs’ other requests for injunctive relief, determining that they had not met their evidentiary burden. Id. at 14, 23-25, 36.

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On April 13, the Sheriff told the district court he had begun enforcing social distancing during intake on April 10; created a policy governing COVID-19 testing on April 11; created the court-ordered hygiene and sanitation policies on April 11; and provided surgical masks to all detainees exposed to COVID-19 on April 13. R.51 at 3-4, 8, 17-18.
On April 14, Plaintiffs moved for a preliminary injunction, seeking to continue the relief ordered in the TRO, and asking the district court to order the Sheriff to enforce social distancing throughout the Jail, release medicallyvulnerable detainees, and convene a three-judge panel to consider a prisoner release order. R.55 at 3-19. When Plaintiffs filed their motion, 541 detainees and staff had tested positive. R.55 at 1.
In support, Plaintiffs submitted evidence from Dr. Homer Venters, an epidemiologist and correctional medical expert, R.64-2; Dr. Amir Mohareb, an infectious disease specialist at Harvard, R.64-3; Dr. Gregg Gonsalves, an epidemiologist at Yale, R.55-7; and Dr. Laura Rasmussen-Torvik, the Chief of Epidemiology at Northwestern, R.64-4. All four experts (and the five experts whose declaration was filed with Plaintiffs’ Complaint) opined that complete social distancing was the only way to meaningfully reduce COVID-19’s rampant spread at the Jail. R.64-2 at 9; R.64-3 at 6-7; R.55-7 at 7; R.64-4 at 3; R.1-2 at 9. Plaintiffs also submitted declarations from investigators who spoke with detainees, all of whom reported they were not able to socially distance. R.55-5 at 2-11.

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The Sheriff did not dispute Plaintiffs’ overwhelming evidence about continued COVID-19 risks at the Jail, the imminent threat of harm posed to detainees, or the public health measures—including social distancing—that Plaintiffs’ evidence established were necessary to control the spread. The Sheriff instead told the district court that an injunction was unnecessary because COVID19 was “under control” at the Jail. R.62 at 3. And although he argued he was taking steps to implement social distancing at the Jail, id. at 19, his evidence demonstrated that many detainees remained housed in tiers well over 50% capacity. R.62-5 at 9-12.
The district court held an evidentiary hearing on Plaintiffs’ motion on April 23. R.71. At that time, at least 788 detainees and staff had contracted COVID-19, and the positive testing rate for detainees was nearly 70%, suggesting that the actual number of COVID-19-positive individuals at the Jail was far higher. Hr’g at 142:14-143:14.
Plaintiffs presented Dr. Venters, who testified about the importance of social distancing in controlling COVID-19’s spread. Hr’g at 65:9-120:12; see also R.73 at 24-26. The Sheriff presented Michael Miller, the Jail’s Executive Director, who did not dispute any of Plaintiffs’ evidence regarding the need for social distancing. Hr’g at 8:1-64:3, 123:22-141:19; see also R.73 at 19-23.
On April 27, the district court granted Plaintiffs’ motion for a preliminary injunction in part. R.73. The court weighed both sides’ evidence and found that Plaintiffs were likely to prevail on their claim that the Sheriff was objectively

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unreasonable in his efforts to effect social distancing. Id. at 63-64. The court repeatedly recognized its obligation to accord deference to the Sheriff’s security interests, and accordingly permitted him flexibility regarding social distancing in many respects. But the court determined greater social distancing was necessary and the Sheriff had provided no adequate explanation as to why he could not or should not do more. Id. at 63.
The district court converted the TRO to a preliminary injunction, and additionally ordered the Sheriff to establish a “policy precluding group housing or double celling of detained persons” with exceptions for detainees who: (1) were in quarantined units; (2) had tested positive; (3) needed double-celling because of a risk of self-harm; (4) were housed in a “group housing unit that is equipped for medical or mental health treatment” if there is no available space in a medical unit that permits social distancing; or (5) were housed in dorms at less than 50% capacity. R.74 at 2-3. The court denied all Plaintiffs’ other requests for relief.
More than three weeks after it was entered, the Sheriff moved to stay the injunction in the district court. R.98-1. The district court denied the motion on May 29, finding that the Sheriff had not established his likelihood of success on appeal or any irreparable harm. R.109. One week later, the Sheriff sought a stay in this Court.
LEGAL STANDARD “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009). It is a request that this Court

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exercise its equitable powers, and the movant bears the burden of showing that such an exercise is warranted by the circumstances. Id.
This Court reviews the district court’s denial of a stay pending appeal for an abuse of discretion, reviewing findings of fact for clear error. Venckiene v. United States, 929 F.3d 843, 853 (7th Cir. 2019). Motions to stay require consideration of four factors: (1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the movant will suffer irreparable harm without a stay; (3) whether a stay would substantially harm the non-movants; and (4) whether the public interest favors a stay. Nken, 556 U.S. at 434; In re A&F Enters., Inc., 742 F.3d 763, 766 (7th Cir. 2014).
The Sheriff contends this Court should conduct a “plenary review” of his motion because the district court failed to “meaningful[ly] analy[ze]” the relevant factors. Mot. at 4-5. But this assertion is plainly rebutted by the district court’s opinion, which thoroughly discusses the stay factors and their application to this case. R.109 at 3-10. The district court addressed each of the Sheriff’s arguments on his likelihood of success, the probability of irreparable harm, and the public interest. Id. Abuse of discretion accordingly governs this Court’s review. Cf. Cavel Int’l, Inc. v. Madigan, 500 F.3d 544, 547 (7th Cir. 2007) (conducting plenary review only because the district court failed to balance any of the relevant factors, instead denying a stay based solely on likelihood of success).

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ARGUMENT The district court correctly determined a stay was inappropriate. After waiting several weeks to seek a stay in either court, the Sheriff has articulated no harm that he has or will suffer without a stay, much less provided the evidence described in Rule 8. His motion instead contends that he would prefer not to be subject to judicial scrutiny for the actions he is (and is not) taking regarding the pandemic. The Sheriff also fails to acknowledge that the decreased infection rate at the Jail occurred after the district court’s preliminary injunction, showing that the injunction is critical to protect Plaintiffs’ safety. Especially given the lack of any credible arguments on the merits of the appeal, each of the factors counsels against a stay. This Court should deny the motion. I. The Sheriff Has Not Shown a Strong Likelihood of Success on the Merits. This Court’s review of the district court’s decision to enter a preliminary injunction is for abuse of discretion. Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015). The Sheriff contends he is likely to win on the merits of his appeal because the district court misapplied the standard governing Plaintiffs’ claims. But the Sheriff does not dispute that Plaintiffs’ Fourteenth Amendment claims properly required an inquiry into the objective reasonableness of his actions to protect Plaintiffs from the threat of COVID-19. Mot. at 5; R.73 at 54, 57-58. The Sheriff instead argues the court erred because it ordered him to do what he was already doing, and failed to give dispositive effect to the CDC Guidance for Detention Facilities. Neither contention has merit.

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The district court recognized that the Sheriff’s objective reasonableness must be assessed “based on what the [Sheriff] knew at the time[,]” and “must account for his legitimate interest in managing the Jail facilities” and “defer to policies and practices that are needed to preserve the internal order and discipline and to maintain institutional security.” R.73 at 58 (citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015); Bell v. Wolfish, 441 U.S. 520, 547 (1979)) (internal quotation marks omitted). But the district court recognized that deference to the Sheriff was not limitless, and did not excuse the court’s “obligation to enforce the constitutional rights of all persons, including prisoners.” R.109 at 8 (citing Brown v. Plata, 563 U.S. 492, 511 (2011)); see also Brown, 563 U.S. at 511 (“Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.”).
Applying those precedents to the facts at hand, the district court discussed the wealth of unrebutted medical evidence from Plaintiffs, including expert testimony from medical and public health experts, who unanimously opined that social distancing (in addition to adequate hygiene, sanitation, masks, and testing) was necessary to meaningfully control COVID-19’s spread. R.73 at 23-28. The court acknowledged the evidence that these measures were particularly critical in settings like the Jail, which “densely packs large groups of people together.” Id. at 27. The court addressed the Sheriff’s evidence about his efforts to implement social distancing and his decision not to socially distance certain detainees, noting that the Sheriff had offered no explanation for some of these decisions. Id. at 19-23 (e.g.,

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the Sheriff’s executive director testified that some detainees were placed in doubleoccupancy cells “due to disorderly conduct” but “did not explain how double-celling serves a security purpose in such situations”).3
The district court accordingly determined, after weighing the evidence and giving due consideration to the Sheriff’s security interests, that a preliminary injunction mandating some social distancing (with exceptions) was appropriate. Id. at 63-64. The court specifically found that group housing and double-celling “is objectively unreasonable given the immediate and significant risk to [Plaintiff’s] life and health” but that certain exceptions were necessary to “account for and give deference to the Sheriff’s interest in managing the Jail facilities and to practices that are needed to preserve order and discipline and maintain security.” Id. According that deference, the court exempted detainees from its social distancing order who: (1) were housed in a quarantined tier; (2) had tested positive for COVID19; (3) were at risk of self-harm; (4) were housed in a group housing unit equipped for medical treatment, where full social distancing was infeasible; and (5) were housed in dorms at less than 50% capacity. Id. at 64.
The Sheriff does not dispute the district court’s findings about Plaintiffs’ risk of harm or need for social distancing, but argues he was already taking the actions ordered. Mot. at 8. The record belies this contention. In denying the Sheriff’s motion

3 The Sheriff still has not provided any explanation why so-called “disorderly” detainees must be double-celled, or why detainees identified as potential sexual assault victims must sacrifice their health to be protected from assault, despite the district court’s express indication that it would consider a request to modify the injunction if some explanation could be provided. R.109 at 9.
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to stay, the district court expressly found that “the TRO and preliminary injunction directed the Sheriff to take steps he was not already taking or was not taking in an effective way.” R.109 at 5. The record unequivocally supports this finding.
After the TRO, the Sheriff stated that to comply with the court’s order, he had: “been implementing the[] new” intake distancing policy “since April 10” (the day after the TRO was entered); amended an outbreak prevention policy on April 11 “to create a plan for administering the [COVID-19] tests” as ordered by the court; created and distributed a sanitation policy on April 11; and “provid[ed] all quarantined detainees one surgical mask per day” beginning on April 13. R.51 at 6, 8, 17-18.
After the April 27 preliminary injunction, the Sheriff reported that he had amended his testing policy to comply with the court’s order. R.84 at 2. He also reported changing his social distancing practices in response to the Court’s order by significantly limiting the number of detainees in housing units. Id. at 12 (“184 of 206 housing units are at 50% capacity or less” and all other units “fall within one or more of the [court’s] exceptions”). The record demonstrates the district court did not order the Sheriff simply to do what he had already been doing. It compelled the Sheriff to take steps the uncontroverted evidence established were necessary to protect detainees’ lives.
The Sheriff next contends that, because the CDC’s Correctional Guidance includes certain “feasibility exceptions,” his actions were objectively reasonable. This argument fails.

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This Court has repeatedly held that administrative guidance, although potentially relevant to the reasonableness of conduct, is not dispositive. United States v. Proano, 912 F.3d 431, 439 (7th Cir. 2019); United States v. Brown, 871 F.3d 532, 537 (7th Cir. 2017); Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006). In Brown, this Court held that determining the objective reasonableness of a state actor’s conduct is “governed by constitutional principles” and “turns on the facts and circumstances of each particular case[,]” and not administrative regulations. 871 F.3d at 536-37. This Court reasoned that although agency regulations may be relevant to the constitutional analysis, affording them dispositive effect would empower the agency to become the arbiter on the Constitution—“a prospect that would have horrified those responsible for the [Bill of Rights]’s ratification.” Id. at 537; see also Proano, 912 F.3d at 439 (The Constitution, not policies or regulations, “sets the constitutional floor” for what is objectively reasonable.).
The district court determined that, given these precedents, the CDC’s Correctional Guidance was “an important piece of evidence to consider in assessing the Sheriff’s conduct,” but was not “dispositive standing alone.” R.73 at 61. That determination was correct.
The Sheriff’s citation to two cases involving the deliberate indifference standard is unavailing. See Mot. at 8-9. In both, the plaintiff had provided no evidence to support injunctive measures beyond what the regulations required. See Caroll v. DeTella, 255 F.3d 470, 472-73 (7th Cir. 2001); Forbes v. Edgar, 112 F.3d

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262, 267 (7th Cir. 1997). Here, Plaintiffs showed by substantial evidence that objective reasonableness required the measures ordered by the district court.
The Sheriff’s argument also fails to acknowledge that the district court’s preliminary injunction decision found the Sheriff’s decision not to socially distance certain detainees was not based solely on feasibility. R.73 at 63 (“[I]t does not appear, based on the evidence, that the Sheriff has yet hit the feasibility limit on getting detainees out of group housing, even if one considers only the Jail complex itself.”). This has been borne out by the Sheriff’s own subsequent submissions, where he claimed compliance with the court’s injunction by implementing the required social distancing. R.84 at 12. Notably, the Sheriff reported a marked decrease in the Jail’s infection rate after he reported compliance with the preliminary injunction. Mot. at 2.
Simply put, the district court’s finding that the Sheriff’s inaction regarding social distancing was objectively unreasonable is not clearly erroneous, and the Sheriff’s contention to the contrary is meritless. The Sheriff has therefore not shown that he is likely to succeed on the merits of his appeal. II. The Sheriff’s Motion Demonstrates He Will Suffer No Irreparable
Harm If the Injunction Is Not Stayed. The Sheriff’s motion for a stay was filed nearly six weeks after the preliminary injunction, and more than two months after the TRO. R.48; R.73. That delay falls squarely on the Sheriff’s shoulders, who waited more than three weeks after the preliminary injunction to file a motion for a stay in the district court, R. 98-1, and a full week after its denial to seek relief on appeal, R.109. Appellate

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courts have found such unexplained delay substantially undercuts an assertion of irreparable harm. Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993); see also Garcia v. Google, Inc., 786 F.3d 733, 746 (9th Cir. 2015).
Moreover, given the weeks that have now elapsed, an assertion of irreparable harm should be accompanied by evidence of actual harm suffered as a result of the injunction. Al Otro Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir. 2020) (no irreparable harm because injunction had been in place for three weeks before government sought a stay, but instead of “evidence of harms that did occur because of the injunction[,]” it offered only “estimates, assumptions, and projections”); see also Fed. R. App. P. 8(a)(2)(B) (directing the movant to attach “affidavits or other sworn statements supporting facts subject to dispute”). But the Sheriff provides no such evidence. Mot. at 11.
The Sheriff’s assertion of irreparable harm is further undercut by his own promises that “there is no likelihood that [the Sheriff] will discontinue” the actions the preliminary injunction mandates. Mot. at 18; see also id. at 12 (“There is no reason to believe that [the Sheriff] would discontinue these efforts absent the injunction order.”). As the district court recognized, the Sheriff’s argument is “internally inconsistent.” R.109 at 8. The Sheriff cannot credibly argue that declining to stay the injunction inflicts irreparable harm while simultaneously promising to abide by its terms even if a stay is issued.4

4 Further evidencing the lack of irreparable harm is the Sheriff’s decision not to seek expedited consideration of the merits of his appeal.
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In essence, the Sheriff argues irreparable harm is always present when a preliminary injunction directs a defendant to take action. As the district court noted, “[t]he upshot of this argument, however, is that any party appealing an injunction would automatically meet the irreparable harm requirement for a stay— because an injunction is, after all, an injunction.” R.109 at 8. The district court correctly rejected this argument, for which the Sheriff cites no authority.
The Sheriff relies on stays issued in Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020), and Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020), to bolster his deference arguments. But Swain and Valentine are not instructive here for multiple reasons, including because they rest on different legal standards. The Eleventh Circuit issued a stay in Swain after finding the district court did not properly address, nor did plaintiffs provide, evidence sufficient to establish the defendants’ subjective intent so as to show deliberate indifference. 958 F.3d at 1089 (noting lack of evidence “to establish that the defendants subjectively believed the measures they were taking were inadequate”). The stay order in Valentine5 similarly relied on finding the district court improperly “treat[ed] inadequate measures as dispositive of the [d]efendants’ mental state.” 956 F.3d at 802.

5 The Fifth Circuit recently vacated the Valentine preliminary injunction, finding that the prison had substantially complied with its terms. Valentine v. Collier, No. 20-20207 (June 5, 2020). Two of the three judges on the panel wrote separately, however, to express support for the merits of plaintiffs’ claims and concern for the prison’s conditions. Id. at 2 (Davis, J., concurring) (holding prisoners under circumstances where they are unable to socially distance is “nothing short of a human tragedy”); id. at 4 (Graves, Jr., J., concurring) (“[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution”).
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Here, the district court did apply the correct legal standard, and accorded the Sheriff substantial deference in adjudicating Plaintiffs’ preliminary injunction motion. R.73 at 58, 63, 84. But deference does not mean blindness, and the court was simultaneously obligated to evaluate whether the Sheriff ran afoul of the Fourteenth Amendment. Brown, 563 U.S. at 511; see also King v. McCarty, 781 F.3d 889, 897-98 (7th Cir. 2015) (deference does not prohibit the court from intervening in jail management to prohibit constitutional violations). The Sheriff would claim irreparable harm any time a federal court ordered him to take action to uphold his constitutional responsibilities. This is not the law. Given the Sheriff’s failure to produce any evidence about the harm inflicted by this injunction—despite having months to do so—this Court should reject his assertion of irreparable harm. See Sampson v. Murray, 415 U.S. 61, 90 (1974) (“Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough” to demonstrate irreparable harm.). III. Plaintiffs Will Be Substantially Injured If This Court Stays the
Injunction. In contrast to the lack of harm suffered by the Sheriff, Plaintiffs will suffer real harm if the stay is granted. The district court noted that the Sheriff did not undertake the actions at issue in the preliminary injunction voluntarily, so “[s]taying the injunction would permit the Sheriff to lift [those] measures and thereby again place the health of detained persons at serious risk.” R.109 at 10. The district court is correct.

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The Sheriff contends Plaintiffs will suffer no irreparable harm if a stay is entered because the infection rate has decreased since the preliminary injunction. Mot. at 15. This assertion supports the necessity of leaving the injunction in place, lest the Sheriff abandon the court-ordered measures that the record established are critical to minimizing the spread of the virus.6 R.73 at 23-28; R.48 at 18-20; R.55-7 at 6-7; R.64-2 at 6-13; R.64-3 at 5-6; R.64-4 at 2-3; R.1-2 at 3-9; see also United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952) (“[t]he sole function of an action for injunction is to forestall future violations”).
The timeline of the infection rate is strong evidence that the district court’s preliminary injunction played a pivotal role in protecting detainees’ lives. The day of the preliminary injunction hearing, the infection rate was nearly 70%. Hr’g at 143:1-3. The Sheriff contends the infection rate is now 3%. Mot. at 2. The timing of this claimed decrease perfectly aligns with the entry of the preliminary injunction. See R.109 at 6 (“The Sheriff’s argument about positive results does not account for the very real possibility that the measures ordered by the Court at the TRO and preliminary injunction stage contributed to those results.”).
The Jail is simply not a place where ingress and egress can be limited. People live in tightly confined congregate spaces. If the stay is granted and the Sheriff is allowed to revert the Jail to its pre-order conditions, when spread of the virus was

6 The Sheriff repeats his assurance that he will abide by the terms of the injunction even if this Court enters a stay. As discussed above, that defeats any assertion by the Sheriff that he will suffer irreparable harm absent a stay. It further suggests that denial of a stay would “minimize the costs of error[,]” In re A&F Enters., 742 F.3d at 766, since the injunction is not imposing any additional costs on the Sheriff’s conduct.
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rampant, there is every reason to believe that transmission rates will again increase. There is no doubt that Plaintiffs will accordingly suffer measurable harm. IV. Consideration of the Public Interest Counsels Against a Stay.
The Sheriff contends that, as a state actor, his interests and the public interest “merge[.]” Mot. at 18. The Sheriff cites Nken in support, but misrepresents the holding. To the contrary, Nken recognized that there is a public interest in preventing wrongful government action. 556 U.S. at 436. And this Court has similarly held that “[e]nforcing a constitutional right is in the public interest.” Whole Woman’s Health Alliance v. Hill, 937 F.3d 864, 875 (7th Cir. 2019). The district court determined the Sheriff’s conduct had run afoul of Plaintiffs’ Fourteenth Amendment rights, and there is substantial public interest in ensuring that the Court does not give leave to the Sheriff to continue that conduct during the pendency of this appeal.
Moreover, just as allowing the Sheriff to abandon the measures ordered by the district court will severely harm Plaintiffs, so too will it injure the public. The Jail is part of the Cook County community. The Health Issues study shows that an uncontrolled rate of infection inside the Jail directly results in dire health outcomes outside the Jail as well. Ex. 1. As such, if this Court issues a stay, permitting the Sheriff to abandon the measures the district court correctly found were necessary to protect against uncontrolled spread of COVID-19, the entire community will be put at risk.

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The public has a strong interest in combatting the spread of COVID-19 (both at the Jail and in the community), and in vindicating Plaintiffs’ Fourteenth Amendment rights. The Sheriff’s motion for a stay is unfounded.
CONCLUSION For these reasons, Plaintiffs respectfully request that this Court deny the Sheriff’s motion.

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Respectfully submitted,
/s/ Sarah Grady Counsel for Plaintiffs-Appellees
Jon Loevy Sarah Grady* LOEVY & LOEVY 311 N. Aberdeen Street, Third Floor Chicago, Illinois 60607 (312) 243-5900 sarah@loevy.com
Locke Bowman Alexa Van Brunt MACARTHUR JUSTICE CENTER Northwestern Pritzker School of Law 375 E. Chicago Ave. Chicago, IL 60611 (312) 503-0884
Alec Karakatsanis Charles Gerstein CIVIL RIGHTS CORP 1601 Connecticut Ave., N.W., Ste. 800 Washington, DC 20009 (202) 894-6128
*Counsel of Record

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CERTIFICATE OF COMPLIANCE I, Sarah Grady, hereby certify that the Plaintiffs-Appellees’ Response to Defendant-Appellant’s Motion for Stay complies with the length requirements of Federal Rule of Appellate Procedure 27(d) because it contains 5,155 words, excluding the portions of the response exempted by Federal Rule of Appellate Procedure 32(f). In preparing this certificate, I relied on the word count tool of the word-processing system used to prepare the brief, Microsoft Word 365. I further certify that the response complies with the typeface and type style requirements of Federal Rule of Appellate Procedure 32(c), as modified by Circuit Rule 32(b), because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 365 in Century Schoolbook 12-point font, with Century Schoolbook 11-point font used for footnotes.

Respectfully submitted,
/s/ Sarah Grady Counsel for Plaintiffs-Appellees

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CERTIFICATE OF COMPLIANCE WITH THIS COURT’S ELECTRONIC CASE FILING PROCEDURE (C)(3)
I, Sarah Grady, hereby certify that I have filed the Plaintiffs-Appellees’
Response to Defendant-Appellant’s Motion for Stay electronically in searchable PDF
format, as required by this Court’s electronic case-filling procedure (c)(3).

Respectfully submitted,
/s/ Sarah Grady Counsel for Plaintiffs-Appellees

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CERTIFICATE OF SERVICE I, Sarah Grady, hereby certify that I served the Plaintiffs-Appellees’ Response to Defendant-Appellant’s Motion for Stay on June 12, 2020, using the CM/ECF system, which effected service on all counsel of record for the DefendantAppellant.

Respectfully submitted,
/s/ Sarah Grady Counsel for Plaintiffs-Appellees

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No. 20-1792 ____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT ________________________
ANTHONY MAYS, Individually and on behalf of a class of similarly situated persons, et al.,
Plaintiffs-Appellees, v.
THOMAS DART, Sheriff of Cook County,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Northern District of Illinois
No. 20-cv-2134—Matthew F. Kennelly, Judge.
DECLARATION OF SARAH GRADY

I, Sarah Grady, under penalty of perjury as provided by 28 U.S.C. § 1746, state as follows:
1. I represent Plaintiffs-Appellees in this appeal. 2. I obtained the attached study by Eric Reinhart and Daniel Chen by visiting the following website on June 11, 2020: https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00652. The article was published online by Health Affairs Journal, a peer-reviewed journal on health policy issues. An explanation by Health Affairs about their journal can be found at this website, which I accessed on June 12, 2020: https://www.healthaffairs.org/about.

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3. An editor’s note in the abstract on page 1 of the attached study notes that the study is “the accepted version of the peer-reviewed manuscript” and a “final edited version will appear in an upcoming issue of Health Affairs.”

DATED: June 12, 2020

/s/ Sarah Grady Counsel for Plaintiffs-Appellees

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By Eric Reinhart and Daniel Chen
Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail

doi: 10.1377/
hlthaff.2020.00652 HEALTH AFFAIRS 39, NO. 8 (2020): – ©2020 Project HOPE— The People-to-People Health Foundation, Inc.

ABSTRACT Jails and prisons are major sites of novel coronavirus (SARSCoV-2) infection. Many jurisdictions in the United States have therefore accelerated release of low-risk offenders. Early release, however, does not address how arrest and pre-trial detention practices may be contributing to disease spread. Using data from Cook County Jail, in Chicago, Illinois, one of the largest known nodes of SARS-CoV-2 spread, we analyze the relationship between jailing practices and community infections at the zip-code level. We find that jail cycling is a significant predictor of SARSCoV-2 infection, accounting for 55 percent of the variance in case rates across zip codes in Chicago and 37 percent in Illinois. By comparison, jail cycling far exceeds race, poverty, public transit utilization, and population density as a predictor of variance. The data suggest that cycling through Cook County Jail alone is associated with 15.7 percent of all documented novel coronavirus disease (COVID-19) cases in Illinois and 15.9 percent in Chicago as of April 19, 2020. Our findings support arguments for reduced reliance on incarceration and for related justice reforms both as emergency measures during the present pandemic and as sustained structural changes vital for future pandemic preparedness and public health. [Editor’s Note: This Fast Track Ahead Of Print article is the accepted version of the peer-reviewed manuscript. The final edited version will appear in an upcoming issue of Health Affairs.]

Eric Reinhart (reinhar@fas .harvard.edu) is a PhD candidate in the Department of Anthropology, Harvard University, in Cambridge, Massachusetts, and an MD candidate at the University of Chicago Pritzker School of Medicine, in Chicago, Illinois. He is also a candidate in adult psychoanalysis at the Chicago Center for Psychoanalysis.
Daniel Chen is Directeur de Recherche at the Centre National de la Recherche Scientifique (CNRS), in Paris, France; a professor at the Toulouse School of Economics and Université de Toulouse Faculty of Law, in Toulouse, France; and lead principal investigator of the DE JURE (Data and Evidence for Judicial Reform) Program at the World Bank in Washington, D.C.

R elative to peer nations, the United States relies disproportionately on arrest and incarceration in its criminal justice administration. In 2018, there were more than 10 million arrests, five million arrests cycled through jails, and two million incarcerated persons in the United States, accounting for nearly a quarter of the total incarcerated population worldwide.1–3 As a result, many of the country’s jails and penitentiaries are severely overcrowded.4 The current novel coronavirus disease (COVID-19) pandemic presents an urgent public health incentive for reconsidering the logic of punishment and reducing reliance on arrest and incarceration.5–9

Such a shift would coincide with important political and ethical arguments for reforming policing and carceral policy.10–12
Existing conditions in jails and penitentiaries make infection control particularly difficult, putting inmates at unconscionable and perhaps unconstitutional risk.13 The outbreak at Cook County Jail in Chicago, which was the largest known node of SARS-CoV-2 spread in the country until surpassed by a state prison in Ohio, makes this reality plain.14–16 In light of the risk of epidemics in densely populated carceral facilities, many jurisdictions have begun releasing certain lowrisk offenders in jails and prisons in order to mitigate the risks posed to inmates with condi-

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tions that render them more vulnerable to severe COVID-19.17 It is estimated that for approximately 40 percent of incarcerated persons there is no public safety justification for their confinement.18,19
Early policy discussions around the infection risk posed by incarceration during the pandemic focused on prison epidemics and the need for associated changes in release policy, such as commutations and compassionate release.20 These release-oriented approaches, which are necessary for ethical treatment of incarcerated persons, are not adequate to address the way in which ongoing arrest and pre-trial detention practices in jails may be contributing to disease spread in community contexts. This broader discussion goes beyond prison epidemics to consider the consequences of policing practices and jail cycling for SARS-CoV-2 spread. It has more recently begun to attract appropriate attention, including in a non-peer-reviewed modeling study produced by the American Civil Liberties Union in collaboration with several universities, which is based on extensive simulations but little evidence.21
Our research evaluates how, following arrest and subsequent cycling in and out of jails as individuals await hearings and trials, the infection risk to those processed through the jail system may multiply into a generalized risk to the public. The data analysis of empirical evidence in our study offers a supplement to modeling studies, which, in the absence of strong available evidence, necessarily rely on various assumptions about SARS-CoV-2 infectivity in jails and prisons, spread in community contexts following inmate release, rates of symptomatic expression and detection among infected persons, mortality rates, and other estimated variables in order to simulate various scenarios.22 Our analysis of jail cycling and community spread of SARSCoV-2 presents preliminary evidence concerning Cook County Jail and the State of Illinois that should be followed by larger studies that can further strengthen the evidentiary basis for modeling and managing an ongoing public health crisis.
Study Data And Methods
The scale of jail-community cycling and its potential for infection seeding is significant: for example, in the month of March 2020, 1,855 individuals were booked into Cook County Jail in Chicago while 2,129 were released, 92 percent of whom had been booked into the jail after February 1, 2020.We examine this epidemiological connection between jail and community at the zip-code level, using booking, release, and

COVID-19 data obtained from Cook County Jail, demographic data from the 2010 US Census and 2011 American Community Survey (the most recent years for which zip-code level data are available), and COVID-19 data reported by the Illinois Department of Public Health. To evaluate the relative strength of the correlation between Cook County Jail cycling and COVID-19 spread in the city of Chicago and the state of Illinois, we ran bivariate and multivariate regressions between the COVID-19 case rate and five variables by zip code: jail inmates released in March, proportion of black residents, poverty rate, public transit utilization rate, and population density.
Our analysis necessarily relies on the assumption that arrests and releases are unrelated to omitted factors that may be associated with COVID-19 across zip codes. We therefore cannot rule out reverse causality. However, other likely causal factors of COVID-19 case rates are plausibly associated with the other demographic controls we have used, which we found did not account for the correlation we observe between jail cycling and COVID-19.
In terms of generalizability, we have used data only from Illinois and a single county jail—Cook County Jail, the nation’s largest single-site jail and third largest jail system. Cook County is the second most populous county in the US, which makes its activities relevant even if they are not representative of smaller counties. The association we document in Chicago and statewide in Illinois does not appear driven by outliers, which alleviates possible concerns that sampling factors are driving the correlations we report. As we have noted, these correlations persist in analysis of the raw data and in multiple regressions that include controls.
Minimal data concerning jail staff is another limitation. According to data we obtained from Cook County Sheriff’s Office, there were more than 600 infections within the jail as of April 19; more than 100 of these were among jail staff. These infections among staff are accounted for within institutional reporting but not included in our community-level SARS-CoV-2 data. However, one might expect that jail staff who go in and out of the jail on a daily basis would have unusually high potential for seeding SARS-CoV2 in their communities. Unfortunately, we do not have zip-code level data on the place of residence of jail staff that would enable us to account for their potential role in community spread. If we had been able to account for staff-associated community spread of SARS-CoV-2 in our analysis, we expect that the association between Cook County Jail and community infection rates would be even greater than we have been able to demonstrate with available data.

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Study Results
Online supplemental exhibit 123 provides details on the above variables for zip codes in both Chicago and statewide in Illinois (limiting to zip codes with at least 5 cases of COVID-19 as of April 19), along with summary statistics. It shows that, in comparison with the rest of Illinois, Chicago zip codes are poorer, use public transit more, and have a higher proportion of black residents and higher population density.
Bivariate correlations between COVID-19 case rates and five variables are given in supplemental exhibit 2.23 This shows that, restricting to the city of Chicago, released jail inmates, poverty, and black residents were significantly positively correlated with COVID-19 case rate, with R-sq values of 0.55, 0.26, and 0.41, respectively. Statewide in Illinois, all variables were significantly positively correlated with COVID-19, with R-sq values of 0.37 (released jail inmates), 0.09 (poverty), 0.26 (public transit utilization), 0.30 (black residents), and 0.21 (population density).
In multivariate linear regression restricted to Chicago, the significant positive associations with race and poverty disappear while released inmates remains significant at the 1 percent level (supplemental exhibit 3).23 See supplemental exhibit 4 for a scatter plot of this relationship and appendix exhibit 1 for scatter plots of all the other relationships.23 In multivariate regression for Illinois, positive associations with released inmates, race, and population density remain significant at the 1 percent level. Supplemental exhibit 3 provides the regression coefficients.23 Rendered in absolute population terms (as in the lower half of supplemental exhibit 3), multivariate regressions suggest that the cycling of 2,129 individuals through Cook County Jail in March was associated with 4,575 additional known community infections in Illinois as of April 19. We have arrived at this number by multiplying the number of released inmates by the regression coefficient (2.149). In Chicago zip codes, the number of released inmates (1,252) multiplied by the regression coefficient (1.548) suggests 1,938 additional Chicago cases were associated with the jail.
These numbers would represent 15.7 percent of all documented cases in Illinois and 15.9 percent in Chicago as of April 19, suggesting that a much higher number of cases is linked to the jail than limited contact tracing has established.7 Our results are robust to the inclusion of all Illinois zip codes with fewer than 5 reported COVID19 community infections (the limited number required by Illinois Department of Public Health in order for them to report cases by zip code) by assigning them a value of zero infections. See appendix exhibit 2 for this analysis and appendix

exhibits 3 and 4 for additional models and specifications.23
Discussion
This analysis shows that, as of April 19, COVID-19 case rates were significantly higher in zip codes with higher rates of arrest and released jail inmates. We find that jail cycling is a significant predictor of SARS-CoV-2 infection, accounting for 55 percent of the variance in case rates across zip codes in Chicago and 37 percent in Illinois. By comparison, jail cycling far exceeds race, poverty, public transit utilization, and population density as predictor of variance.
Although currently available data are inadequate to establish a clear causal relation, these provisional findings are consistent with the hypothesis that arrest and jailing practices are augmenting infection rates in highly policed neighborhoods. Although we cannot infer causality, it is possible that, as arrested individuals are exposed to high-risk spaces for infection in jails and then later released to their communities, the criminal justice system is turning them into potential disease vectors for their families, neighbors, and, ultimately, the general public. In light of the well-documented, disproportionate intensity of policing and incarceration in black neighborhoods in the United States, the carceral-community spread of disease may bear partial responsibility for the striking racial disparities noted in COVID-19 cases.12 In Chicago, although black residents comprise only 30 percent of the population, they represent 75 percent of the Cook County Jail population and 72 percent of the city’s COVID-19-related deaths.24
Our findings reinforce arguments that efforts to shift criminal justice administration away from arrest and incarceration may be vital for protecting the public health during this pandemic and reducing vulnerability to future epidemics.5–9,19 Waiting until epidemic outbreaks become apparent to implement changes in the criminal justice system, as in the present case, is not sufficient and will not protect against a reprise of the current situation. The COVID-19 pandemic is making clear that alternative mechanisms of criminal deterrence such as citations, public service requirements, and supervised release are not simply ethical demands but also sound public health policy in a globalized era of vulnerability to rapid spread of infectious diseases.25
Conclusion
The criminal justice system in the United States is just one among many existing social structures

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that are being subjected to renewed scrutiny during the COVID-19 pandemic because of the public health hazards they pose. Pandemic reality has brought us to an unprecedented collective realization of national and global interconnec-

tedness in which the risks of vulnerability to
disease for America’s incarcerated and the world’s poor, for example, threaten all of us,
although clearly not equally.26–29 ▪

Daniel Chen acknowledges support from the Centre National de la Recherche Scientifique (CNRS), in France, for his position as CNRS Directeur de Recherche, and a research grant from the Knowledge for Change Trust Fund. [Published online June 4, 2020.]

NOTES
1 Wagner P, Sawyer W. States of Incarceration: The Global Context 2018 [Internet]. Northampton (MA): Prison Policy Initiative; 2018 Jun [cited 2020 Apr 19]. Available from: https://www.prisonpolicy .org/global/2018.html
2 Heard C. Towards A HealthInformed Approach to Penal Reform: Evidence from Ten Countries [Internet]. London (UK): Institute for Criminal Policy Research; 2018 Jun [cited 2020 Apr 19]. Available from: https://www.prisonstudies.org/ sites/default/files/resources/ downloads/icpr_prison_health_ report.pdf
3 Federal Bureau of Investigation. Crime in the United States, 2018 [Internet]. Washington (DC): FBI; [cited 2020 Apr 19]. Available from: https://ucr.fbi.gov/crime-in-the-u.s/ 2018/crime-in-the-u.s.-2018
4 American Civil Liberties Union. Overcrowding and Overuse of Imprisonment in the United States. American Civil Liberties Union Submission to the Office of the High Commissioner for Human Rights [Internet]. New York (NY): ACLU; 2015 May [cited 2020 Apr 19]. Available from: https://www.ohchr .org/Documents/Issues/RuleOf Law/OverIncarceration/ACLU.pdf
5 Wurcel AG, Dauria D, Zaller N, Nijhawan A, Beckwith C, Nowotny K, et al. Spotlight on Jails: COVID-19 Mitigation Policies Needed Now. Clinical Infectious Diseases [serial on the Internet]. 2020 Mar 28 [cited 2020 May 8]. Available from: https://doi.org/10.1093/cid/ ciaa346
6 Hawks L, Woolhandler S, McCormick D. COVID-19 in Prisons and Jails in the United States JAMA Intern Med. 2020 Apr 28. [Epub ahead of print].
7 Akiyama MJ, Spaulding AC, Rich JD. Flattening the Curve for Incarcerated Populations—Covid-19 in Jails and Prisons. New Engl J Med. 2020 Apr 2. [Epub ahead of print].
8 Nowotny K, Zinzi B, Omori M, Brinkley-Rubinstein L. COVID-19

Exposes Need for Progressive Criminal Justice Reform. American Journal of Public Health [serial on the Internet]. 2020 Apr 30 [cited 2020 May 8]. Available from: https:// doi.org/10.2105/AJPH.2020.305707 9 Barnert E, Ahalt C, Williams B. Prisons: Amplifiers of the COVID-19 Pandemic Hiding in Plain Sight. American Journal of Public Health [serial on the Internet]. 2020 May 14 [cited 2020 May 21]. Available from: https://doi.org/10.2105/AJPH.2020 .305713 10 Roberts DE. Foreword: Abolition Constitutionalism. Harvard Law Review [serial on the Internet]. 2019;133(1):3–122 [cited 2020 Apr 19]. Available from: https://harvard lawreview.org/wp-content/uploads/ 2019/11/1-122_Online.pdf 11 Gilmore RW. Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California. Berkeley (CA): University of California Press, 2007. 12 Western B, Pettit B. Incarceration and social inequality. Daedalus [serial on the Internet]. Summer 2010 [cited 2020 May 29]. Available from: https://www.amacad.org/sites/ default/files/daedalus/downloads/ 10_summer_western.pdf 13 Wallace M, Hagan L, Curran KG, Williams SP, Handanagic S, Bjork A, et al. COVID-19 in Correctional and Detention Facilities—United States, February–April 2020. Morbidity and Mortality Weekly Report [serial on the Internet]. 2020 May 6 [cited 2020 May 29]. Available from: https://www.cdc.gov/mmwr/ volumes/69/wr/mm6919e1.htm?s_ cid=mm6919e1_w 14 Cook County Sheriff. COVID-19 Cases at CCDOC [Internet]. Chicago (IL): Cook County Sheriff; [cited 2020 Apr 19]. Available from: https://www.cookcountysheriff .org/covid-19-cases-at-ccdoc/ 15 Ohio Department of Rehabilitation & Correction. COVID-19 Inmate Testing [Internet]. Columbus (OH): DRC; [updated 2020 Apr 20; cited 2020 Apr 21]. Available from:

https://www.drc.ohio.gov/Portals/ 0/DRC%20COVID-19%20 Information%2004-20-2020%20 %201304_1.pdf 16 Rojas R, Cooper M. Georgia, Tennessee and South Carolina Say Businesses Can Reopen Soon. The New York Times [serial on the Internet]. 2020 Apr 20 [updated 2020 Apr 21; cited 2020 Apr 21]. Available from: https://www.nytimes.com/ 2020/04/20/us/coronavirus-us-hotspots-reopening.html 17 Williams T, Weisel B, Rashbaum WK. ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars. The New York Times [serial on the Internet]. 2020 Mar 30 [updated 2020 Mar 31; cited 2020 Apr 21]. Available from: https://www .nytimes.com/2020/03/30/us/ coronavirus-prisons-jails.html 18 Austin J, Eisen L-B. How Many Americans Are Unnecessarily Incarcerated? [Internet]. New York (NY): NYU School of Law, Brennan Center for Justice; 2016 [cited 2020 Apr 20]. Available from: https://www .brennancenter.org/sites/default/ files/2019-08/Report_ Unnecessarily_Incarcerated_0.pdf 19 Margulies J. Let the People Go. Boston Review [serial on the Internet]. 2020 Apr 20 [cited 2020 Apr 24]. Available from: http://boston review.net/law-justice/josephmargulies-prisons-and-pandemics 20 Editorial Board. No One Deserves to Die of Covid-19 in Jail. The New York Times [serial on the Internet]. 2020 Apr 23 [cited 2020 Apr 23]. Available from: https://www.nytimes .com/2020/04/23/opinion/corona virus-prisons.html 21 ACLU. COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failures to Reduce Jails [Internet]. New York (NY): ACLU; 2020 Apr 22 [cited 2020 May 29]. Available from: https://www .aclu.org/sites/default/files/field_ document/aclu_covid19-jail-report_ 2020-8_1.pdf 22 Fuller J. Models v. Evidence. Boston Review [serial on the Internet]. 2020

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May 5 [cited 2020 May 6]. Available from: http://bostonreview.net/ science-nature/jonathan-fullermodels-v-evidence 23 To access the appendix, click on the Details tab of the article online. 24 Foody K. Rate of Deaths, Illness Among Black Residents Alarms Cities. Associated Press [serial on the Internet]. 2020 Apr 6 [cited 2020 Apr 19]. Available from: https:// apnews.com/1862bf401d6aad1d182 e0bd967488c90 25 Kahan DM. What Do Alternative Sanctions Mean? Univ of Chicago

Law Rev 1996;63:591–653. 26 Stafford K, Hoyer M, Morrison A.
Outcry Over Racial Data Grows as Virus Slams Black Americans. Associated Press [serial on the Internet]. 2020 Apr 8 [cited 2020 Apr 19]. Available from: https://apnews .com/71d952faad4a2a5d 14441534f7230c7c 27 Yancy CW. COVID-19 and African Americans. JAMA. 2020;232(19): 1891–1892. 28 Gordon C, Johnson W, Purnell JQ, Rogers J. COVID-19 and the Color Line. Boston Review [serial on the

Internet]. 2020 May 1 [cited 2020 May 2]. Available from: http:// bostonreview.net/race/colingordon-walter-johnson-jason-qpurnell-jamala-rogers-covid-19-andcolor-line 29 Gross CP, Essien UR, Pasha S, Gross JR, Wang S, Nunez-Smith M. Racial and Ethnic Disparities in Population Level Covid-19 Mortality. MedRxiv [serial on the Internet]. 2020 May 7 [cited 2020 May 29]. Available from: https://www.medrxiv.org/content/ 10.1101/2020.05.07.20094250v1

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 Case: 1:20-cv-02134 Document #: 102-1 Filed: 05/20/20 Page 1 of 20 PageID #:2901

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, et al., Plaintiffs-Petitioners, v.
THOMAS J. DART, Sheriff of Cook County,
Defendant-Respondent.

)

Case No. 1:20-cv-2134

)

)

The Hon. Matthew F. Kennelly

)

Emergency Judge

)

)

The Hon. Robert Gettleman

)

Presiding Judge

)

)

The Hon. David Weisman

)

Magistrate Judge

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO STAY AND TO STRIKE

Plaintiffs, by their undersigned attorneys and per this Court’s order (Doc. No. 101), submit

the following response in opposition to the Sheriff’s motion to stay proceedings pending appeal of

the Preliminary Injunction Order and to strike Plaintiffs’ discovery requests for lack of jurisdiction.

INTRODUCTION

More than three weeks after this Court entered its preliminary injunction, and more than a

week after the Sheriff filed his notice of appeal, the Sheriff has asked this Court to issue a stay

that, practically speaking, stops this case in its tracks so that the Sheriff can pursue review in the

Court of Appeals, which has suspended briefing until the Sheriff addresses the Seventh Circuit’s

concerns over its jurisdiction.1 The Sheriff’s motion fails to articulate any persuasive grounds

for granting his request. He has not articulated even a plausible likelihood of success on the

merits. Both the timing and the contents of his motion defeat any credible argument that the

Sheriff will suffer irreparable harm absent a stay. And the Sheriff fails to acknowledge in any

1

Were the Sheriff genuine in his contention that he will suffer irreparable harm if a stay is not

entered, Plaintiffs would expect that he would already have addressed the Seventh Circuit’s concerns

regarding jurisdiction and requested an expedited briefing schedule.

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meaningful fashion the substantial harm that the Sheriff’s request would impose on Plaintiffs, whose very lives are at stake should the Preliminary Injunction be undone. The request to stay should be denied.
The Sheriff’s stay motion is also aimed, once again, at preventing Plaintiffs and the class they represent from investigating the true conditions inside the Cook County Jail. Over the past weeks, Plaintiffs have amassed voluminous evidence of non-compliance, including the Sheriff’s own admissions and declarations submitted on behalf of correctional officers and detainees— evidence that the Sheriff consistently and disrespectfully denigrates.2 Further evidence submitted here shows that life in the Jail is not as the Sheriff describes. Declaration of Detainees (Ex. A hereto). This is of particular concern in light of new statistical evidence concerning the population of detainees: 1000 individuals are incarcerated, in the dangerous conditions, because they cannot pay a monetary bail amount, including over 100 who are incarcerated for inability to pay $1,000 or less. See Dec. of Sarah Staudt (Ex. B hereto). Many others are jailed awaiting trial on misdemeanors or on Class 4, non-forcible felonies. Id.
In short, conditions at the Jail remain dire. And the Sheriff has failed, again, to suggest why Plaintiffs have not met good cause for expedited discovery into what the Sheriff is doing to protect people’s lives. As the Court retains jurisdiction over enforcement of its own order, the

2

The Sheriff takes issue with the reliability of the Plaintiffs’ submission of detainee declarations,

which provide the parties and the Court with some insight into life behind the walls of the Jail during this

pandemic. The lone case the Sheriff cites for this dismissive argument provides no support to his

position. In Hudson v. Preckwinkle, the district court took issue with the expert’s “heavy reliance” on

unsworn declarations. Hudson v. Preckwinkle, 2015 WL 1541787, at *11 (N.D. Ill. Mar. 31, 2015). Far

from stating that such declarations have no place before a district court, the court in Hudson wrote that

reliance on such declarations was just one factor that went to the weight of the expert’s conclusions. Id. For

the Sheriff to dismiss the detainee declarations as non-probative, while at the same time resisting formal

discovery mechanisms at every turn, suggests the Sheriff believes his actions are beyond review.

2

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Sheriff’s motion to strike should also be denied. ARGUMENT
I. THE DISTRICT COURT RETAINS JURISDICTION OVER ENFORCEMENT OF THE PRELIMINARY INJUNCTION SO THAT THE MOTION TO STRIKE IS UNFOUNDED.
This Court has jurisdiction to order discovery into the Sheriff’s compliance with the preliminary injunction, and to enter orders regarding the Sheriff’s lack of compliance. Union Oil Co. of Calif. v. Leavell, 220 F.3d 562, 565-66 (7th Cir. 2000) (citing Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 16 Fed. Prac. & Proc. Juris. § 3921.2 (2d ed. 1996)); Chrysler Motors Corp. v. Int’l Union, Allied Indus. Workers of Am., AFL-CIO, 909 F.2d 248, 250 (7th Cir. 1990). In Union Oil, the Seventh Circuit held that a party’s notice of appeal of an interlocutory injunction “does not stay enforcement of a district court’s order. . . . A notice of appeal divests the district court of its control over those aspects of the case involved in the appeal, but whether the address of an injunction has complied is not a subject involved in the appeal.” 220 F.3d at 565-66 (internal quotation marks and citations omitted) (emphasis in original); Chrysler Motors Corp., 909 F.2d at 250 (“An interlocutory appeal does not divest the district court of jurisdiction . . . to determine whether the [the plaintiff] violated the injunction”); Planned Parenthood of Wisc., Inc. v. Van Hollen, 2013 WL 12233948, at *1-2 (W.D. Wis. Aug. 15, 2013) (permitting discovery to proceed despite pending appeal of preliminary injunction, but staying trial date). This is a commonsense application of the law—to hold otherwise would invite a party to flout an injunction’s terms merely by filing an appeal.
Yet, Defendant argues this Court has no jurisdiction to entertain Plaintiffs’ request for evidence, relying solely on Bradford-Scott Data Corp. v. Physician Computer Network, 128 F.3d 504, 505 (7th Cir. 1997) for this position. But the Seventh Circuit’s opinion actually supports the
3

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exercise of jurisdiction over Plaintiffs’ discovery requests (as well as over any additional relief that may stem from the answers to those requests). Bradford-Scott holds that district courts retain jurisdiction to “conduct proceedings looking toward permanent injunctive relief while an appeal about the grant or denial of a preliminary injunction is pending.” Bradford-Scott Data Corp., 128 F.3d at 505; see also Wisc. Mut. Ins. Co. v. United States, 441 F.3d 502, 504 (7th Cir. 2006) (rule that filing of a notice of appeal divests the district court of jurisdiction of aspects of the case involved in the appeal “has several qualifications . . . perhaps the foremost of which is that an appeal taken from an interlocutory decision does not prevent the district court from finishing its work”).
Defendant further avoids the straightforward teachings of Seventh Circuit precedent by arguing that Plaintiffs’ request for discovery constitutes, in effect, a request for modification of the existing preliminary injunction. Def. Mot. at 7. The law is to the contrary. Plaintiffs have already provided significant support for the proposition that they are entitled to discovery into the Sheriff’s compliance with the Court’s injunctive order. See Doc. No. 93-1.3 Those cases are in line with Rule 26(d) of the Federal Rules of Civil Procedure, which expressly permits courts to enter orders modifying the timing and sequence of discovery. Fed. R. Civ. P. 26(d)(1)-(3); Restoration Hardware, Inc. v. Haynes Furniture Co., 2017 WL 3597518, at *2 (N.D. Ill. Mar. 13, 2017) (recognizing that Rule 26(d) authorizes a court to order expedited discovery); Ibarra v. City of Chicago, 816 F. Supp. 2d 541, 554 (N.D. Ill. 2011) (same).

3

Defendant’s brief, Def. Mot. at 8, n. 2, states that he was unable to access the cases cited by

Plaintiffs in their reply brief, Doc. No. 93-1, that support this position: United States v. Chappelle, No.

118CV00943RLYTAB, 2019 WL 549379 (S.D. Ind. Jan. 4, 2019); United States v. Jackson, No. 1:18-CV-

2000, 2018 WL 2731224 (N.D. Ill. May 17, 2018); United States v. U.S. Contracting, LLC, No. 1:15-CV-

01536-WCG, 2016 WL 6995368 (E.D. Wis. Aug. 4, 2016). Plaintiffs checked the citations again and they

are correct. They are also attached hereto as Exhibit C.

4

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The consequence of Defendant’s argument—that an order allowing discovery into compliance with a court injunction is itself a separate injunction—would entitle every party who disagreed with a district court’s discovery orders to an appeal as of right. 28 U.S.C. § 1292(a). Defendant has cited no legal authority for such a startling proposition. To the contrary, the Seventh Circuit has repeatedly characterized discovery orders as the quintessential type of order not subject to interlocutory review. See, e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108 (2009) (“[T]he rule remains settled that most discovery rulings are not final.”); Reise v. Bd. of Regents of Univ. of Wisc. Sys., 957 F.2d 293, 294 (7th Cir. 1992) (Discovery orders “even exceedingly burdensome discovery orders” are not appealable on an interlocutory basis) (collecting cases).
Plaintiffs’ request is for access to discovery materials in order to permit them to determine whether, and to what extent, the Sheriff is complying with the Court’s preliminary injunction order. See Doc. Nos. 85, 93-1. Such a request, and any subsequent motion practice regarding compliance should discovery indicate that the Sheriff is flouting the Preliminary Injunction, is well within this Court’s jurisdiction, regardless of the pendency of Defendant’s appeal of the injunction itself. Union Oil Co., 220 F.3d at 565-66; Chrysler Motors Corp., 909 F.2d at 250.
II. THE SHERIFF IS NOT ENTITLED TO A STAY OF DISTRICT COURT PROCEEDINGS PENDING RESOLUTION OF THE APPEAL.
Defendant sets forth the standard for a stay, which mirrors the preliminary injunction standard. Def. Mot. at 9. He cannot meet it and his motion for a stay should be denied.
A. The Sheriff is Unlikely to Succeed on the Merits Before the Seventh Circuit as this Court Correctly Ruled that the Sheriff was Objectively Unreasonable in His Handling of the COVID Pandemic in the Jail. Defendant is unlikely to prevail on the merits of his appeal of this Court’s preliminary
injunction.
5

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This Court’s April 27, 2020 memorandum opinion and order, detailing the reasons for its preliminary injunction, was thorough in its discussion of both the evidence submitted by the parties and the controlling law. Although the Sheriff contends that “the district court misapplied the legal standard[,]” Doc. No. 98-1 at 9, he offers no meaningful challenge to this Court’s citation to or interpretation of controlling precedents. To the contrary, the Sheriff’s brief concedes that this Court properly determined that Plaintiffs’ Fourteenth Amendment claims require an inquiry into the objective reasonableness of the Sheriff’s conduct, based on the particular facts of the case at hand. Compare Doc. No. 98-1 at 10, with Doc. No. 73 at 52-54. And the Court, like the Sheriff, recognized that in assessing the Sheriff’s objective reasonableness, the Court must “account for [the Sheriff’s] legitimate interest in managing the Jail facilities” and “defer to policies and practices that are needed to preserve internal order and discipline and to maintain institutional security.” Doc. No. 73 at 58 (internal quotation marks omitted); see also Doc. No. 98-1 at 10 (quoting virtually identical language). But the Court also properly recognized that judicial deference to jailers is not limitless; it is circumscribed by the Constitution, and in this case, by the Fourteenth Amendment. See Brown v. Plata, 563 U.S. 493, (2011) (although courts must extend deference to prison officials, courts “nevertheless must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners.” (internal quotation marks omitted)).
The closest the Sheriff comes to identifying a legal issue he contends the Court got wrong is in arguing that the CDC’s Guidance that social distancing may not be feasible in correctional settings is dispositive on the question of objective reasonableness. But the Court’s application of Seventh Circuit precedent on this issue is above reproach. The Court correctly recognized the CDC Guidelines can be regarded as “an important piece of evidence to consider in assessing the Sheriff’s conduct,” without assigning them dispositive effect . Doc. No. 73 at 61; see also id. at
6

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59-62 (discussing United States v. Brown, 871 F.3d 532 (7th Cir. 2017); Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001); Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 1996)). The Sheriff’s brief cites to no authority (binding or otherwise) that meaningfully disputes the Court’s application of Seventh Circuit precedents to this case.
Instead, the Sheriff’s motion simply disagrees with the conclusion that this Court reached. The Court came to that decision after a careful review of the voluminous evidence submitted by the parties, and an evidentiary hearing where both sides were permitted to offer expert testimony and argument regarding the motion for a preliminary injunction. Doc. No. 73 at 3-8, 11-28. And this Court’s opinion provided a thorough reasoning as to why the evidence supported its injunction. Id. at 53-66. In determining that Plaintiffs were entitled to a preliminary injunction, this Court addressed the wealth of evidence in the record supporting its conclusion that hygiene, sanitation, PPE, and social distancing provisions were necessary—and narrowly tailored remedies—to protect against uncontrolled spread of COVID-19. Id. at 83-87. And the Court, in both its April 27 opinion and its earlier April 9 TRO decision, explained the evidence that enabled the Court to conclude that the Sheriff was not taking the actions necessary to protect Plaintiffs’ health and safety. Doc. No. 47 at 18-20. On appeal, those factual determinations will be reviewed for clear error. Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 2018); Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015) (“[W]e give substantial deference to the court’s weighing of evidence and balancing of the various equitable factors.”).
They are not clearly erroneous. And the Sheriff’s brief does not meaningfully dispute the evidence. Instead, the Sheriff regurgitates a list of things the Sheriff did before the lawsuit was filed, including creating teams, holding meetings, and talking to people about the impending threat of COVID-19. Doc. No. 98-1 at 10-11. He does not dispute the Court’s findings that at the time
7

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of the Court’s TRO and preliminary injunction, the injunctive measures ordered by the Court were not in place. And he does not dispute the Court’s findings that hygiene, sanitation, PPE, and social distancing—the measures at issue in the Court’s preliminary injunction—were and are necessary to control the spread of COVID-19 and protect people’s lives. Instead, he contends that because he took various actions “in good faith,” Def. Mot. at 12, 17, 18, he is immune from constitutional compliance, regardless of the reasonableness of those actions to address the threat of harm. That view has been squarely rejected by the Seventh Circuit. Hardeman v. Curran, 933 F.3d 816, 821 (7th Cir. 2019) (defendant’s “motive” in taking action is not relevant to objective reasonableness inquiry). The Sheriff has raised no meritorious challenge to this Court’s preliminary injunction order.
The Sheriff also argues throughout that, regardless of the merits of his challenge to the preliminary injunction order, the Court should stay this case simply because the preliminary injunction subjects the Sheriff to oversight by this Court. These arguments are unpersuasive. In its preliminary injunction opinion, this Court properly balanced its simultaneous responsibilities to exercise deference to the Office of the Sheriff, and to enforce the constitutional rights of detainees at the Jail. Doc. No. 73 at 58-59; Brown, 563 U.S. at 511 (“Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.”).
The Sheriff relies on Swain v. Junior, ___ F.3d ___, 2020 WL 2161317 (11th Cir. May 5, 2020), and Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020), to bolster his deference arguments. But Swain and Valentine cases are easily distinguishable from this case, primarily because they rest on different legal standards. The Eleventh Circuit issued a stay in Swain v. Junior after finding that the district court did not properly address, and the plaintiffs did not provide, evidence
8

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sufficient to establish, the defendants’ subjective intent. 2020 WL 2161317, at *4 (noting the lack of evidence “to establish that the defendants subjectively believed the measures they were taking were inadequate”). The stay order in Valentine was similarly reliant on a finding that that the district court improperly “treat[ed] inadequate measures as dispositive of the [d]efendants’ mental state.” Id. at 802; see also id. (noting the lack of evidence “that [defendants] subjectively believe the measures they are taking are inadequate”).
As the Sheriff has acknowledged, his actions in this case must be evaluated according to a standard of objective reasonableness. See, e.g., Def. Mot. at 10. This Court properly applied that standard and candidly recognized that Plaintiffs would have failed to meet their burden if deliberate indifference governed their claims. Doc. No. 73 at 56. This Court’s opinion is thus very different from the district court injunctions at issue in Swain and Valentine, and the Sheriff has offered no argument that this Court committed any legal errors in assessing objective unreasonableness, or that Plaintiffs failed to provide sufficient evidence that the Sheriff’s actions were objectively unreasonable.4
The cases, which in any event are not binding in this Circuit, are also distinguishable on the facts. For instance, the Eleventh Circuit in Swain identified specific and concrete countervailing interests that counseled against the preliminary injunction, finding that the district court’s order that detainees be provided with soap and hand sanitizer would divert supplies of those products from other county facilities where they would be more critical. Swain, 2020 WL

4

Defendant also cites to Roman v. Wolf, 2020 WL 2188048 (9th Cir. May 5, 2020), Def. Mot. at

15, but Roman actually supports Plaintiffs’ position. The Ninth Circuit in Roman partially granted a

motion to stay the district court’s preliminary injunction order, but refused to stay the part of the order

that required the prison to comply with the CDC’s guidance governing correctional facilities. Given that

much of this Court’s Preliminary Injunction directly encompasses that guidance, Roman also advises

against delay in the Order’s implementation.

9

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2161317, at *5. Likewise, Swain expressed concern that the district court’s testing requirements would divert testing resources from other facilities. Id. The Sheriff has made no related claims here.
B. The Sheriff Has Not Demonstrated He Will Suffer Irreparable Harm Absent a Stay The Sheriff’s arguments about the irreparable harm he will suffer in the absence of a stay
similarly amount to no more than a preference to operate without judicial oversight. See, e.g., Def. Mot. at 13 (“The Court’s order is particularly troubling because its duration is open-ended, which places the Sheriff in the unbounded threat of contempt while exercising his inherent discretion to safely operate the Jail.”). The substance of any claims extending beyond this simple truth ring hollow.
As a preliminary matter, the Sheriff cannot credibly assert that he is being “irreparably harmed” by an opinion that was issued over three weeks ago. Cf. Arjo, Inc. v. Handicare USA, Inc., 2018 WL 5298527, at *9 (N.D. Ill. Oct. 25, 2018) (delay in preliminary injunction filing “undermines the moving party’s argument that it will suffer irreparable harm”) (citing cases); see also New York v. United States Dep’t of Commerce, 339 F. Supp. 3d 144, 148 (“inexcusable delay in filing a motion to stay severely undermines the….argument that absent a stay irreparable harm would result.” (citing Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993)). In the interim weeks, the Sheriff has filed a compliance report, a brief opposing Plaintiffs’ discovery requests and a notice of appeal to the Seventh Circuit, see Doc. Nos. 84, 87, and 88-90; at no time before yesterday did he seek to stay the implementation of the Order. And he does not present any arguments here as to why he is subject to irreparable injury in this present moment, as opposed to when the Order was first entered.
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Indeed, the Sheriff’s arguments of irreparable injury are all entirely speculative. The Sheriff claims that a stay is appropriate because the Order hamstrings him from acting in accordance with changed circumstances, for instance, in the event new CDC guidance is published that requires him to alter protocols in the Jail. Def. Mot. at 16. But the theoretical possibility of “changed circumstances” does not warrant a stay when Defendant has failed to show an actual injury. See In re Heotis, 17 C 886, 2017 WL 4310513, at *5 (N.D. Ill. Sept. 28, 2017) (“A movant's fear of harm occurring that is only speculative is insufficient to meet the definition of an irreparable injury.”) (quoting In re Quade, 496 B.R. 520, 527–28 (Bankr. N.D. Ill. 2013)). Further, if the Sheriff believes that new evidence entitles him to a modification of the terms of the Preliminary Injunction, he can and should move to modify the order. Cf. Commodity Futures Trading Com’n v. Battoo, 790 F.3d 748, 750 (7th Cir. 2015) (court may grant modification of preliminary injunction where the movant “has demonstrated that changed circumstances make the continuation of the injunction inequitable.”).5 That he has not done so suggests that nothing has changed, and that the Order is, as Plaintiffs have repeatedly shown (e.g., Doc. Nos. 85, 93-1), appropriate and absolutely necessary to ensure the protection of detainee lives. See Section II(C), supra.
The Sheriff also argues that a stay is appropriate since the Court order amounts to a mandate of compliance with his “own policies,” Def. Mot. at 16. He asserts that these policies have been “highly successful” in decreasing the rate of infection in the Jail, id. at 2, 18 (“There can be no doubt that the policies and procedures the Sheriff implemented at the Jail…are responsible for this remarkable result.”), and that he “has and will continue” to implement those policies, id. at 18. First, if it is the Sheriff’s position that the Court order only codifies the Sheriff’s already-existing

5

The Sheriff decries the fact that the Preliminary Injunction is “open ended.” Def. Mot. at 13. Again,

if the Sheriff has evidence to show the Order is no longer necessary, he should move to modify or revoke

the terms of the Injunction.

11

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official procedures, then it is hard to fathom how the continuation of the Order impedes his ability to run the Jail. Hinrichs v. Bosma, 440 F.3d 393, 402 (7th Cir. 2006) (denying motion to stay and finding no irreparable harm where injunction ordered same action as movant’s stated practice). He provides no explanation on this point.
Second, as the Sheriff tacitly admits, conditions in the Jail have undeniably improved as a result of the Preliminary Injunction. See Def. Mot. at 4-6 (describing an increase in the number of tests administrated and the declining positive rate since mid-April). It is Plaintiffs’ position that the Sheriff is not in full compliance with the order as a practical matter, and seek discovery as to his failure to implement sufficient testing and social distancing on the ground. See Doc. Nos. 85 and 93-1. But to the extent the Sheriff states that he is being irreparably injured by the continuation of a preliminary injunction that (as he admits) have demonstrably enhanced the welfare of detainees in his custody, it is difficult to perceive a more misguided argument.
In short, the Sheriff has failed to provide any evidence beyond mere speculation that the existing Order subjects him to any harm, let alone the irreparable kind.
C. Plaintiffs Will Be Substantially Injured if this Court Orders a Stay In contrast, should a stay issue, Plaintiffs will suffer the very real and irreparable harm of
increased risk to their health and life. Cf. Wilson v. Williams, 2020 WL 2308441 at *2 (N.D. Ohio May 8, 2020) (rejecting a request to stay preliminary injunction ordering the transfer of prisoners vulnerable to coronavirus because, among other things, the prisoners’ potential injuries in event of a stay, which included “serious medical complications and possible death,”) (“[I]t would be hard to overstate how much more serious the potential injuries to Petitioners are compared to those cited by Respondents.”).
12

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The Sheriff contends that staying the court’s preliminary injunction would not harm the plaintiff class because (a) he is doing and intends to continue doing all that the preliminary injunction requires, and (b) the Sheriff’s recent testing results demonstrate that the coronavirus is currently being managed in the Jail. These arguments simply lack merit.
First, it is deeply discordant for the Sheriff to insist that all is well within the Jail, and thus there would be no harm to Plaintiffs if the injunction were stayed, while at the same time continuing his vehement opposition to Plaintiffs’ efforts to obtain limited discovery that would shed light on the realities behind Jail walls. The Sheriff’s explanations and assurances regarding protection of the detainees in his care have been inconsistent and obfuscatory.
For example, in his May 1 report regarding compliance, the Sheriff complained that the preliminary injunction made it “more difficult to guarantee [the] protection” of protective custody detainees at heightened risk of sexual assault. See Doc. No. 84 at 14. When Plaintiffs sought discovery regarding the housing of this group of vulnerable detainees, the Sheriff countered that they “remain fully protected,” even though they may encounter general population detainees in common areas and dayrooms. See Sheriff’s 5/11/20 Response (Doc. No. 87-1) at 23. The Sheriff has never furnished an explanation of where these vulnerable detainees are housed—and he refuses to do so. There is similar opacity as to all Jail operations that pertain to the preliminary injunction and on which Plaintiffs have sought discovery. The justifications for housing detainees in close quarters on special needs RTU tiers are simply the Sheriff’s say-so. The Sheriff adamantly opposes Plaintiffs’ request to clarify, as to the specific detainees, the reasons why the Sheriff has determined they must be in housing that does not permit social distancing. Similarly he refuses to provide any clarity as to who is being tested in quarantine and on what metrics.
13

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As an additional example, the Sheriff’s account of the extent of coronavirus infection in

the Jail has evolved. In early April, as the number of positive cases was increasing to an alarming

number, the Sheriff’s website began an idiosyncratic system of dividing the number of positive

test results—separately reporting those who were “currently” positive and those who are “no

longer positive and are being monitored at a recovery facility in the Jail.” See

https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/. The Sheriff’s recent filing now

reveals three categories of positive test results: “positives in isolation,” “convalescent detainees”

(described on the website as “no longer positive”), and “post-convalescent detainees” (also,

presumably, “no longer positive” and also in “regular housing”). See Doc. No. 98-4. The exhibit

now clarifies what the website has hidden for more than a month—the total number of known

infections within the Jail from March 23 to the present, which equals 811 known infections

(counting the seven who have passed away).

See id.; and compare

https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ (reporting only 542 current and

formerly positive cases).

In short—the Sheriff has not been transparent. He continues to take notable efforts to close

the curtain on the Jail’s operations. For these reasons, among others, there is “good cause” to

allow the expedited discovery that Plaintiffs are seeking. Doc. Nos. 85, 93-1. But, in any event,

the court should hesitate to simply trust the Sheriff’s assurances that, with a stay, the health and

safety of the detainees in the Jail will not be compromised.

Second, the Sheriff offers a false history of the events that preceded and followed the

court’s temporary restraining order and preliminary injunction. On April 9, when the TRO was

entered, there were 312 known positive COVID-19 cases in the Jail. All of the cases had been

identified in the span of just 18 days (from March 23) and the rate of increase was deeply

14

Case: 1:20-cv-02134 Document #: 102-1 Filed: 05/20/20 Page 15 of 20 PageID #:2915
disturbing. See Doc. No. 98-4. Contrary to the Sheriff’s public statements (at a press conference on March 27, the Sheriff Dart said “in the next day or two we’ll have everyone in some type of single cell” (see https://www.facebook.com/196166530417661/videos/1455986534583494/)), many detainees were in double cells and dormitories long after this court’s April 7 TRO. See Ex. 1 to Michael Miller 4/17/20 Dec. (Doc. No. 62-5) (showing close to 1500 detainees in double cells or dormitories as of April 17). Testing was limited; lack of tests rendered it infeasible for the Sheriff to test asymptomatic detainees. See Defendant’s Post-Ruling Report (Doc. No. 51) at 12 (no testing of quarantined detainees who has been exposed to symptomatic or positive detainees). Bullpens were being used during the intake process. Throughout the Jail’s divisions, there were complaints about lack of personal protective equipment (particularly masks) and lack of supplies for personal hygiene and for sanitation. See, e.g., Doc. Nos. 1-10 through 1-19 (detainee declarations attached to Plaintiffs’ 4/3/20 complaint); Doc. No. 55-5 (detainee declarations attached to Plaintiffs’ 4/14/20 renewed motion for summary judgment); Doc. No. 64-5 (detainee declaration attached to Plaintiffs’ 4/19/20 reply in support of renewed motion for preliminary injunction).
The TRO and the preliminary injunction pushed the Sheriff to make significant changes in Jail operations: (1) the Sheriff has discontinued the use of bullpens at intake and enforces social distancing there (see Doc. No. 51 at 3-7 (describing social distancing and other precautionary procedures implemented on April 10 in response to the TRO)); (2) the Sheriff has eliminated double celling and greatly reduced dormitory housing while enabling social distancing in most dormitory tiers (compare Michael Miller 4/6/20 Dec. Ex. 1 (Doc. No. 30-8) (showing occupancy levels in early April) with Michael Miller 4/17/20 Dec. Ex. 2 (Doc. No. 62-5) (showing reduced occupancy levels in dorms and single-celled tiers)); (3) the Sheriff has increased testing capacity
15

Case: 1:20-cv-02134 Document #: 102-1 Filed: 05/20/20 Page 16 of 20 PageID #:2916
and tests (some) asymptomatic detainees (see Doc. No. 98-5 at 5 (“[o]n or about April 16, Cermak began testing asymptomatic detainees”)); (4) by the Sheriff’s report, massive efforts have been undertaken to secure PPE, sanitation supplies and personal hygiene materials, and to educate detainees and staff about their use (see, e.g., Doc. Nos. 84-5 through 84-9 (listing sanitation and hygiene efforts within the Jail as of 5/1/20)).
The Sheriff makes much of the apparent decrease in the rate of new coronavirus infections among detainees in the Jail in the past four weeks. See Doc. No. 98-1 at 5. If the rate of infection is indeed slowing, it is hard to escape the conclusion that that outcome is the product of the court’s intervention and the Sheriff’s efforts to comply with the TRO and the preliminary injunction. When this case began—whatever the state of the Sheriff’s planning and efforts at mitigation—the Jail was a national hotspot for coronavirus infection; the number of cases was multiplying at an alarming rate. If, taking the Sheriff at his word, the rate of infection has now leveled off, the most plausible inference is that the improvement has been driven by the court’s intervention—not by the Sheriff’s January planning.
Third, whatever the successes that have been achieved by virtue of the preliminary injunction, those successes are not grounds for a stay. Cf. United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952) (“[t]he sole function of an action for injunction is to forestall future violations”). If the spread of infection has indeed slowed as the Sheriff claims, that is reason to double down on the measures that have led to that result—social distancing, personal protection, hygiene and sanitation. This is hardly the time to let up on the pressure.
But more concerning, the Sheriff has made it abundantly clear that he has no ability and no intention to comply with the preliminary injunction’s social distancing requirements in the event the Jail’s population increases. The Sheriff staked out that position in his May 1 report regarding
16

Case: 1:20-cv-02134 Document #: 102-1 Filed: 05/20/20 Page 17 of 20 PageID #:2917

compliance with the preliminary injunction, arguing there that it would not be feasible to continue

social distancing within the Jail should the population rise above current levels, as is to be expected

during the summer months. See Doc. No. 84 at 18-21.

The Sheriff reiterates the point in his motion for stay—complaining that the preliminary

injunction will hinder operations by forcing him to request a “permission slip” in order to abandon

social distancing in the event of a population increase. See Doc. No. 98-1 at 16. The Sheriff seeks

a stay, in other words, because, perversely, he wants freedom from the requirement of social

distancing in particular—chief among the measures that has led to the slowed rate of infection.

In contrast to the harms about which the Sheriff complains, the risk of irreparable harm to

Plaintiffs is “hard to overstate.” Wilson, 2020 WL 2308441 at *2. Seven detainees have died.

Many remain infected. Many more have not been tested. The uncertain path of the coronavirus is

well known to all of us. The risk to which Plaintiffs would be exposed if a stay were granted are

enormous. They are, quite simply, risks that should not be taken.

D. Issuance of a Stay Will Harm the Public Interest.

It is always in the public interest for public figures to comply with the Constitution. See,

e.g., Whole Woman's Health Alliance. v. Hill, 937 F.3d 864, 875 (7th Cir. 2019) (“Enforcing a

constitutional

right

is

in

the

public

interest.”);

Heitmann v. City of Chicago, 2008 WL 1943239, at *5 (N.D. Ill. May 1, 2008) (“we also must

consider the public interest in ensuring that defendant is in compliance with federal law”). Since

the preliminary injunction in this case does no more than require such compliance, it necessarily

follows that granting a stay would disserve the public interest.

Moreover, the coronavirus pandemic presents the extraordinary circumstance where an

elevated risk of infection to persons confined within the Jail necessarily elevates the risk of

17

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infection to persons outside the Jail—a risk that is actualized every time a corrections officer, other Sheriff’s employee, contractor or others having business in the Jail enters and then leaves the facility. The Jail’s walls cannot stop the spread of coronavirus. The public interest would be directly and significantly disserved by a stay that enabled relaxation of measures to control the spread of coronavirus.
The Sheriff’s description of Nken v. Holder, 556 U.S. 418 (2009) misstates the case. The Court in Nken, a case about stays of removal orders in the immigration context, noted that the public has competing interests in “preventing aliens from being wrongfully removed” and in “prompt execution of removal orders.” 556 U.S. at 436. To the extent the government in Nken also sought prompt execution of removal orders (the government opposed the stay), the court observed that the government’s interest and the public interest merged. Id. But that is a far cry from broad, indefensible proposition that the Sheriff advocates—that the government’s position somehow and always defines the public interest. For that proposition there is no support of which Plaintiffs are aware. And the facts of this case make very clear that the public has every interest in seeing the preliminary injunction order remain in force and the lives of detainees remain protected. See Johnson v. Loftus, 2008 WL 4542952, at *3 (N.D. Ill. Apr. 1, 2008) (“the public has a significant interest in ensuring that individuals are not imprisoned in violation of the Constitution”).
CONCLUSION For the foregoing reasons, Plaintiffs’ respectfully request that this Court deny Defendants’ Motion to Stay Proceedings Pending Appeal and to Strike their Discovery Requests.
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Respectfully submitted,
/s/ Alexa Van Brunt Locke E. Bowman Alexa A. Van Brunt MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue, Chicago, IL 60611 Tel: 312-503-0884 l-bowman@law.northwestern.edu a-vanbrunt@law.northwestern.edu
Sarah C. Grady Stephen H. Weil LOEVY & LOEVY 311 N. Aberdeen Street, #3 Chicago, IL 60607 Tel: 312-243-5900 Fax:312-243-5902 weil@loevy.com sarah@loevy.com
Charles Gerstein Alec Karakatsanis Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 charlie@civilrightscorps.org alec@civilrightscorps.org Tel: 202-894-6128
Steve Grimes Thomas F. McAndrew Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 Tel: (312) 558-8317 SGrimes@winston.com TMcAndrew@winston.com
19

Case: 1:20-cv-02134 Document #: 102-1 Filed: 05/20/20 Page 20 of 20 PageID #:2920 CERTIFICATE OF SERVICE
I, Alexa Van Brunt, an attorney, hereby certify that on May 20, 2020, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system and served upon all counsel who have filed appearances in the above-captioned matter.
/s/ Alexa A. Van Brunt Alexa A. Van Brunt
20

 
 Case: 1:20-cv-02134 Document #: 137 Filed: 07/07/20 Page 1 of 6 PageID #:3218

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and

)

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

THOMAS J. DART, Sheriff of Cook

)

County,

)

)

Defendant-Respondent.

)

Case No. 1:20-cv-2134 The Hon. Robert Gettleman

PARTIES’ JOINT MOTION TO EXTEND THE PRELIMINARY INJUNCTION AND TO STAY DISCOVERY PENDING APPEAL

Plaintiff, ANTHONY MAYS, Individually and on behalf of a class of similarly situated persons, and Plaintiff JUDIA JACKSON, as next friend of KENNETH FOSTER, Individually and on behalf of a class of similarly situated persons (collectively, “Plaintiffs”), by and through their attorneys at the RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER, LOEVY & LOEVY, CIVIL RIGHTS CORPS, and WINSTON & STRAWN, LLP; and Defendant THOMAS J. DART (“Defendant”), by and through his attorneys at HINSHAW & CULBERTSON, LLP, hereby jointly move this Court to extend the duration of its Preliminary Injunction (Dkt. 74), subject to the order of the Seventh Circuit Court of Appeals staying social distancing requirements in housing areas, and to stay all discovery in the District Court until such time as the district court can take proper action following the return of the mandate to the district court from the Seventh Circuit, in the interest of efficiency and preserving the status quo. In support of their motion, the parties state as follows:

Case: 1:20-cv-02134 Document #: 137 Filed: 07/07/20 Page 2 of 6 PageID #:3219
1. Plaintiffs have brought this case for injunctive relief pursuant to 42 U.S.C. § 1983 on behalf of a class of all individuals detained at the Cook County Jail regarding the actions taken by the Sheriff in response to the coronavirus. Dkt. 1. In response, the Sheriff has maintained that his actions have been objectively reasonable. Dkt. 29, 41, 62.
2. On April 9, 2020, the Court entered a temporary restraining order, directing the Sheriff to establish and implement policies regarding coronavirus testing, sanitation, and hygiene; to enforce social distancing during the new detainee intake process (and to suspend the use of bullpens at intake); and to provide masks to quarantined detainees. Dkt. 47 at 33-36 (detailing the contents of the required policies).
3. On April 14, 2020, Plaintiffs moved for a preliminary injunction. Dkt. 55. On April 23, 2020, the Court conducted an evidentiary hearing on Plaintiffs’ motion, and both sides presented additional evidence and live testimony. Dkt. 71.
4. On April 27, 2020, the Court granted Plaintiffs’ motion for a preliminary injunction in part. Dkt. 73. The Court entered a preliminary injunction directing the Sheriff to take certain actions regarding testing, social distancing, hygiene materials, sanitation, and facemasks. Dkt. 74. The Court found that its preliminary injunction was “narrowly drawn, extends no further than necessary, and is the least intrusive means necessary to address” the constitutional violation, the findings required under 18 U.S.C. § 3626(a)(1). See Dkt. 73 at 82.
5. On May 11, 2020, the Sheriff filed a notice of appeal from the preliminary injunction order, which remains pending, and is currently being heard by the Seventh Circuit Court of Appeals on an expedited basis. The Sheriff’s opening appellate brief is due July 10; Plaintiffs’ response brief is due July 24; and the Sheriff’s reply brief is due July 31. Oral argument has been scheduled for August 18, 2020. Mays v. Dart, 20-1792, Dkt. 29. The Sheriff joins this Motion
2

Case: 1:20-cv-02134 Document #: 137 Filed: 07/07/20 Page 3 of 6 PageID #:3220
without waiver of his arguments regarding the propriety of the Court’s findings and the entry of the preliminary injunction as set forth throughout the proceedings before this Court and now in the appellate court.
6. On June 19, 2020, the appellate court stayed that part of the injunction requiring the Sheriff to establish and put into effect a policy “precluding group housing or double celling of detained persons.” Dkt. 127.
7. Because the Court did not set an end date for the preliminary injunction, see Dkt. 73 at 87, the Prison Litigation Reform Act (“PLRA”) provides that the preliminary injunction will automatically expire 90 days after its entry—i.e., by July 27, 2020—absent further action by the Court. See 18 U.S.C. § 3626(a)(2).
8. The parties agree that the Court previously made the findings required under subsection (a)(1) of the PLRA. Id. § 3626(a)(1). The parties further agree that this Court has authority and jurisdiction to extend the duration of the preliminary injunction pending resolution of the appeal. See, e.g., Yates v. Collier, 677 F. App’x 915, 918 (5th Cir. 2017) (finding that plaintiffs could have sought an extension of the preliminary injunction beyond the PLRA’s 90-day expiration date in order to permit appellate review); Ga. Advocacy Office v. Jackson, 2020 WL 1883877, at *4-5 (N.D. Ga. Feb. 26, 2020) (finding that 18 U.S.C. § 3626(a)(2)’s requirement to make the order final “refers to finalizing the preliminary injunction by including the required findings so that the preliminary injunction may be extended beyond the 90-day period during the pendency of the action or until further order of the court”).
9. The parties agree that should the circumstances warrant, the district court has jurisdiction to entertain a request by either party to modify the preliminary injunction. Fed. R. Civ. P. 62(d).
3

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10. The parties agree that, in the interests of judicial economy and in an effort to maintain the status quo for the duration of the appeal, the duration of the preliminary injunction entered by this Court on April 27, 2020, Dkt. 74, subject to the appellate court’s partial stay order, should be extended until such time as the district court can take proper action following the return of the mandate to the district court from the Seventh Circuit, subject to further extension or modification. The parties expressly agree that the Seventh Circuit’s order staying enforcement of the injunction’s requirement to establish and implement a policy precluding group housing or double celling of detainees remains in effect as to that provision of the Preliminary Injunction if the Court grants the parties’ joint motion. Dkt. 127.
11. The parties also agree that discovery in the underlying case should be stayed until the pending appeal in this case is decided. Such an order, entered concurrently with the extension of the duration of the preliminary injunction, will ensure that the status quo is preserved and will further judicial economy by relieving the parties and the Court of the substantial burden of conducting discovery before significant legal issues are decided by the Seventh Circuit.
12. Counsel for Plaintiffs and the Sheriff have consulted with counsel for the Intervenors, who reported that Intervenors, International Brotherhood of Teamsters Local 700, have no objection to this motion or the relief sought.
Wherefore, the parties jointly request that this Court enter an order extending the duration of the Preliminary Injunction (Dkt. 74), subject to further extension or modification and the appellate court’s partial stay order, and staying all discovery, until such time as the district court can take proper action following the return of the mandate to the district court from the Seventh Circuit.
4

Case: 1:20-cv-02134 Document #: 137 Filed: 07/07/20 Page 5 of 6 PageID #:3222

Respectfully submitted:

PLAINTIFFS’ COUNSEL

/s/ Sarah Grady

_

Sarah C. Grady

Stephen H. Weil

LOEVY & LOEVY

311 N. Aberdeen Street, #3

Chicago, IL 60607

Tel: 312-243-5900

Fax:312-243-5902

weil@loevy.com

sarah@loevy.com

Locke E. Bowman Alexa A. Van Brunt MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue, Chicago, IL 60611 Tel: 312-503-0884 l-bowman@law.northwestern.edu a-vanbrunt@law.northwestern.edu
Charles Gerstein Alec Karakatsanis Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 charlie@civilrightscorps.org alec@civilrightscorps.org Tel: 202-894-6128

Steve Grimes Thomas F. McAndrew Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 Tel: (312) 558-8317 SGrimes@winston.com TMcAndrew@winston.com

DEFENDANT’S COUNSEL

/s/ Robert Shannon

_

James Matthias Lydon

Hinshaw & Culbertson LLP

151 N. Franklin Street

Suite 2500

Chicago, IL 60606

(312) 704-3000

Email: jlydon@hinshawlaw.com

Robert Thomas Shannon Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606 (312) 704-3901 Email: rshannon@hinshawlaw.com

Adam Robert Vaught Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606 (312) 704-3584 Email: avaught@hinshawlaw.com

Gretchen Harris Sperry Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606 (312)704-3521 Email: gsperry@hinshawlaw.com

Lari Ann Dierks Hinshaw & Culbertson LLP 151 N. Franklin Street Suite 2500 Chicago, IL 60606 (312) 704-3254 Email: ldierks@hinshawlaw.com

5

Case: 1:20-cv-02134 Document #: 137 Filed: 07/07/20 Page 6 of 6 PageID #:3223 CERTIFICATE OF SERVICE
I, Sarah Grady, an attorney, hereby certify that on July 7, 2020, I caused a copy of the foregoing Parties’ Joint Motion to Extend the Preliminary Injunction and Stay Discovery to be filed via CM/ECF, which effected service on all counsel of record.
/s/ Sarah Grady Sarah Grady Attorney for Plaintiffs
6

 
 Case: 1:20-cv-02134 Document #: 141 Filed: 07/09/20 Page 1 of 3 PageID #:3728

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MAYS, et al., Plaintiffs-Petitioners, v.
THOMAS J. DART, Sheriff of Cook County,
Defendant-Respondent.

)

Case No. 1:20-cv-2134

)

)

The Hon. Matthew F. Kennelly

)

Emergency Judge

)

)

The Hon. Robert Gettleman

)

Presiding Judge

)

)

The Hon. David Weisman

)

Magistrate Judge

ORDER

The Court has received the Parties’ Joint Motion to Extend the Preliminary Injunction

and to Stay Discovery Pending Appeal (ECF 137) (“Joint Motion”). For the reasons set forth in

the Joint Motion and further described below, the Court grants the Motion as follows:

1. Plaintiffs brought this case pursuant to 42 U.S.C. § 1983 for injunctive relief on

behalf of a class of individuals detained at the Cook County Jail regarding the Sheriff’s response

to the coronavirus. (Joint Motion ¶ 1.) In response, the Sheriff has maintained that his actions

have been objectively reasonable. (Joint Motion ¶ 1.)

2. On April 27, 2020, the Court granted Plaintiffs’ motion for a preliminary

injunction in part, directing the Sheriff to take certain actions regarding testing, social distancing,

hygiene materials, sanitation, and facemasks. (Joint Motion ¶ 4.) In granting the motion, the

Court found that the injunctive relief it had ordered “narrowly drawn, extends no further than

necessary, and is the least intrusive means necessary to address” the constitutional violation as

required under 18 U.S.C. § 3626(a)(1). (Joint Motion ¶ 4; Dkt. 73 at 82.)

3. The Sheriff has appealed the Court’s April 27, 2020 preliminary injunction order.

(Joint Motion ¶ 5.) On June 19, 2020, the Seventh Circuit Court of Appeals stayed that part of

Case: 1:20-cv-02134 Document #: 141 Filed: 07/09/20 Page 2 of 3 PageID #:3729
the injunction requiring the Sheriff to establish and put into effect a policy “precluding group housing or double celling of detained persons.” (Joint Motion ¶ 6.)
4. The Prison Litigation Reform Act (“PLRA”) provides that a preliminary injunction will expire 90 days after its entry absent further action by the Court. See 18 U.S.C. § 3626(a)(2). Under that provision, the Court’s April 27, 2020 preliminary injunction order would expire on July 27, 2020 absent further action by the Court.
5. The Court finds that it has authority and jurisdiction to extend the duration of the preliminary injunction pending resolution of the Sheriff’s appeal of the Court’s April 27, 2020 preliminary injunction order.
6. In the interests of judicial economy and in an effort to maintain the status quo for the duration of the appeal, as well as other reasons set forth in the parties’ Joint Motion and elsewhere in this Order, the Court therefore grants the parties’ motion and ORDERS that its April 27, 2020 preliminary injunction order, subject to the appellate court’s partial stay order, be extended until such time as the Court can take proper action following the return of the mandate to this Court from the Seventh Circuit Court of Appeals. This Order does not prohibit either party from requesting modification of the preliminary injunction.
7. The Court enters this Order without waiver of the Sheriff’s arguments regarding the propriety of the Court’s findings and the entry of the preliminary injunction as set forth throughout the proceedings before this Court and now in the appellate court.
8. In their Joint Motion the parties further agreed and jointly proposed that discovery in the underlying case should be stayed until such time as the Court can take proper action following the return of the mandate to this Court from the Seventh Circuit Court of Appeals. (Joint Motion ¶ 11.) In the interests of judicial economy and in an effort to maintain the status
2

Case: 1:20-cv-02134 Document #: 141 Filed: 07/09/20 Page 3 of 3 PageID #:3730
quo during the duration of the appeal, as well as other reasons set forth in the parties’ Joint Motion and elsewhere in this Order, the Court therefore grants the parties’ motion and ORDERS that all discovery in this case is stayed until such time as the Court can take proper action following the return of the mandate to this Court from the Seventh Circuit Court of Appeal. The Court further ORDERS that Plaintiffs’ motion for discovery (ECF 135) and the Sheriff’s motion to stay discovery pending appeal (ECF 129) are withdrawn.

Date: July 9, 2020

___________________________________ Robert W. Gettleman United States District Judge

3

 
 Case: 20-1792 Document: 42

Filed: 07/24/2020 Pages: 40

NO. 20-1792
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
ANTHONY MAYS, individually and on behalf of a class of
similarly situated persons, et al., PLAINTIFFS-APPELLEES, v. THOMAS J. DART,
Sheriff, Cook County, Illinois, DEFENDANT-APPELLANT.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS,
CASE NO. 1:20 CIV. 2134 (HON. MATTHEW F. KENNELLY)

MOTION FOR LEAVE TO FILE BRIEF OF PRISON & JAIL LAW SCHOLARS AS AMICI
CURIAE SUPPORTING PLAINTIFFS-APPELLEES

JOSHUA MATZ KAPLAN HECKER & FINK LLP 350 FIFTH AVENUE | SUITE 7110 NEW YORK, NY 10118 (212) 763-0883 jmatz@kaplanhecker.com
Counsel to Amici Curiae

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1. Pursuant to Federal Rule of Appellate Procedure 29(a), the prison & jail law scholars listed in Appendix A respectfully move for leave to file their brief as amici curiae in support of Plaintiffs-Appellees.
2. Amici are scholars specializing in the law of prisons and jails. They have substantial academic, pedagogical, and professional experience bearing on the legal questions presented, as well as a professional interest in the proper development of the law.
3. This amicus brief will aid the Court’s decisional process in two respects. First, it clarifies the applicable legal requirements and explains the circumstances in which federal courts consider agency and professional organization standards in determining whether those legal requirements are satisfied. Second, it applies those governing principles to a particular agency standard—issued by the CDC—that was addressed at length below and that is cited repeatedly (but mistakenly) by Appellant as supporting his position. Amici are well positioned to address these important issues by virtue of their unique expertise; their perspective is precisely of the kind properly submitted in an amicus brief. See Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003); Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000).
4. Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amici state that no party’s counsel authored the brief in whole or in part; no party’s counsel

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contributed money that was intended to fund preparing or submitting the brief; and no person—other than amici and their counsel—contributed money that was intended to fund preparing or submitting the brief. 5. Counsel for amici have conferred with counsel for the parties regarding consent to file this brief. Appellees have consented. Appellant stated that he did not consent. When asked to explain the grounds on which Appellant refused to consent, counsel to Appellant did not respond. 6. For the reasons set forth above, amici respectfully request leave to file the attached brief of amici curiae in support of Plaintiffs-Appellees.

Dated: July 24, 2020

Respectfully Submitted, /s/ Joshua Matz
JOSHUA MATZ KAPLAN HECKER & FINK LLP 350 FIFTH AVENUE | SUITE 7110 NEW YORK, NY 10118 (212) 763-0883 jmatz@kaplanhecker.com
Counsel to Amici Curiae

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APPENDIX A
Amici join this brief as individuals; institutional affiliation is noted for informational purposes only and does not indicate endorsement by institutional
employers of positions advocated.
• Margo Schlanger, Wade H. and Dores M. McCree Collegiate Professor of Law, University of Michigan Law School.
• Sharon Dolovich, Professor of Law, Director, UCLA Covid-19 Behind Bars Data Project, Director, Prison Law and Policy Program, University of California, Los Angeles School of Law.
• Hadar Aviram, Thomas Miller ‘73 Professor of Law, University of California, Hastings College of the Law.
• Bryonn Bain, Associate Professor, Department of African American Studies, Department of World Arts and Cultures, Director, UCLA Prison Education Program, University of California, Los Angeles.
• W. David Ball, Professor, Santa Clara University School of Law.
• Valena Beety, Professor of Law, Arizona State University Sandra Day O’Connor College of Law.
• Caitlin Henry, Lecturer, Sonoma State University.
• Aaron Littman, Binder Clinical Teaching Fellow, University of California, Los Angeles School of Law.
• Jules Lobel, Bessie McKee Walthour Chaired Professor, University of Pittsburgh Law School.
• Keramet Reiter, Associate Professor, University of California, Irvine School of Law.
• Judith Resnik, Arthur Liman Professor of Law, Yale Law School.
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• Ira P. Robbins, Barnard T. Welsh Scholar and Professor of Law, American University Washington College of Law.
• David Rudovsky, Senior Fellow, University of Pennsylvania Law School.

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CERTIFICATE OF SERVICE Counsel for amici curiae certifies that on July 24, 2020 I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: July 24, 2020

By: /s/ Joshua Matz JOSHUA MATZ Counsel for Amici Curiae

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EXHIBIT A

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NO. 20-1792
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
ANTHONY MAYS, individually and on behalf of a class of
similarly situated persons, et al., PLAINTIFFS-APPELLEES, v. THOMAS J. DART,
Sheriff, Cook County, Illinois, DEFENDANT-APPELLANT.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS,
CASE NO. 1:20 CIV. 2134 (HON. MATTHEW F. KENNELLY)

BRIEF OF PRISON & JAIL LAW SCHOLARS AS AMICI CURIAE SUPPORTING PLAINTIFFS-APPELLEES

JOSHUA MATZ KAPLAN HECKER & FINK LLP 350 FIFTH AVENUE | SUITE 7110 NEW YORK, NY 10118 (212) 763-0883 jmatz@kaplanhecker.com
Counsel to Amici Curiae

Save As

Clear Form

Case: 20-1792 Document: 42

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APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No: _N_o_._2_0_-1_7_9_2______

Short Caption: _M_a_y_s_v_._D__a_rt_______________________________________________________________________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party, amicus curiae, intervenor or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statements be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in the front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1)

The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure

information required by Fed. R. App. P. 26.1 by completing item #3):

_M__a_rg_o__S_c_h__la_n_g_e_r_,_S_h__a_ro_n__D_o__lo_v_i_c_h_, _H_a_d_a_r__A_v_ir_a_m__,_B_r_y_o_n_n__B_a_i_n_, _W__. _D_a_v_i_d_B__a_ll_, _V_a_l_e_n_a_B__e_e_ty_,__C_a_it_li_n__H_e_n_r_y_,_________

_A_a_r_o_n__L_it_tm__a_n_,_J_u_l_e_s__L_o_b_e_l,_K__e_r_a_m_e_t_R__e_it_e_r_, _J_u_d_it_h__R_e_s_n_i_k_, _Ir_a__P_._R_o__b_b_in_s_,_a__n_d_D__a_v_id__R_u_d_o__v_s_k_y____________________

(2)

The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or

before an administrative agency) or are expected to appear for the party in this court:

_K_a_p__la_n__H_e_c_k_e_r__&_F__in_k__L_L_P_________________________________________________________________________________

________________________________________________________________________________________________________

(3)

If the party, amicus or intervenor is a corporation:

i)

Identify all its parent corporations, if any; and

_N_/_A_____________________________________________________________________________________________

ii)

list any publicly held company that owns 10% or more of the party’s, amicus’ or intervenor’s stock:

_N_/_A_____________________________________________________________________________________________

(4)

Provide information required by FRAP 26.1(b) – Organizational Victims in Criminal Cases:

_N_/_A_____________________________________________________________________________________________________

(5)

Provide Debtor information required by FRAP 26.1 (c) 1 & 2:

_N_/_A_____________________________________________________________________________________________________

Attorney’s Signature: _/s_/_J_o_s_h_u_a_M__a_tz____________________________ Date: _J_u_ly__2_4_, _2_0_2_0_____________________________ Attorney’s Printed Name: _J_o_s_h_u_a_M__a_tz________________________________________________________________________ Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes __✔___ No _____ Address: _3_5_0_F_I_F_T_H__A_V_E_N__U_E_,_S_U__IT_E__7_1_1_0___________________________________________________________________
_N_E__W__Y__O_R__K_,_N_Y__1_0_1__1_8___________________________________________________________________________________
Phone Number: _(2_1_2_)__7_6_3_-0_8_8_3____________________________ Fax Number: _N_/A____________________________________
E-Mail Address: _jm__a_t_z_@__k_a_p_la_n_h_e__c_k_e_r._c_o_m____________________________________________________________________________ rev. 12/19 AK

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TABLE OF CONTENTS

Page

INTEREST & IDENTITY OF AMICI CURIAE .......................................................1

INTRODUCTION & SUMMARY OF ARGUMENT..............................................1

ARGUMENT .............................................................................................................4

I. DUE PROCESS CLAUSE REQUIREMENTS ARE DISTINCT FROM AGENCY AND PROFESSIONAL ORGANIZATION STANDARDS........4

A. The Due Process Clause Requires that the Sheriff’s Conduct at the Cook County Jail Be Objectively Reasonable ......................................4
B. Agency and Professional Organization Guidelines May Illuminate the Objective Reasonableness Analysis but Cannot Control It ............6

II. THE CDC GUIDELINES AT ISSUE HERE ARE ENTITLED TO LITTLE WEIGHT IN DUE PROCESS CLAUSE ANALYSIS ..................16

CONCLUSION ........................................................................................................23

CERTIFICATE OF COMPLIANCE.......................................................................24

CERTIFICATE OF SERVICE ................................................................................25

APPENDIX A ..........................................................................................................26

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TABLE OF AUTHORITIES

Page(s)

Cases
Axelson v. Watson, 746 F. App’x 600 (8th Cir. 2018).................................................................... 9, 13

Bell v. Wolfish, 441 U.S. 520 (1979) ........................................................................ 2, 3, 4, 7, 8, 11

Brown v. Plata, 563 U.S. 493 (2011) ...........................................................................................2, 7

Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001) ......................................................................... 11, 15
Cody v. Hillard, 830 F.2d 912 (8th Cir. 1987) .............................................................................. 7-8

Darrah v. Krisher, 865 F.3d 361 (6th Cir. 2017) ................................................................................15

Duran v. Elrod, 760 F.2d 756 (7th Cir. 1985) ................................................................................13

Forbes v. Edgar, 112 F.3d 262 (7th Cir. 1997) ................................................................................15
French v. Owens, 777 F.2d 1250 (7th Cir. 1985) ..............................................................................15
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) ......................................................................... 2, 7, 8

Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019) ..................................................................................4

Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir. 1988)................................................................................7
J.K.J. v. Polk Cty., 960 F.3d 367 (7th Cir. 2020) ................................................................................14
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Kingsley v. Hendrickson, 576 U.S. 389 (2015) .................................................................................. 2, 4, 5, 6
Mays v. Dart, No. 20 Civ. 2134, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020)..................... 5, 16
McCann v. Ogle Cty., 909 F.3d 881 (7th Cir. 2018) ......................................................................... 2, 4, 6
Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir. 2018) ......................................................................... 4, 5, 6
N.S. v. Kansas City, Mo., Bd. of Police Comm’rs, No. 4:16 Civ. 843, 2018 WL 10419366 (W.D. Mo. Feb. 7, 2018)......................10
Orr v. Shicker, 953 F.3d 490 (7th Cir. 2020) .............................................................................. 8-9
Payette v. Hoenisch, 284 F. App’x 348 (7th Cir. 2008).........................................................................13
Rhodes v. Chapman, 452 U.S. 337 (1981) ...........................................................................................7, 8
Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367 (1992) .............................................................................................13
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....................................................................................... 11-12
The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932) ............................................................................. 10-11
Thompson v. Chicago, 472 F.3d 444 (7th Cir. 2006) .................................................................... 2, 8, 9-10
Tillery v. Owens, 907 F.2d 418 (3d Cir. 1990) ...................................................................................7
United States v. Brown, 871 F.3d 532 (7th Cir. 2017) ................................................................... 2, 8, 9, 11

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Statutes 34 U.S.C. § 30302(3) ...............................................................................................14 34 U.S.C. § 30307(b) ...............................................................................................14 Rules Fed. R. App. P. 29(a)(4)(E)........................................................................................1 Other Authorities National Prison Rape Elimination Commission Report, NAT’L CRIMINAL JUSTICE
REFERENCE SERVICE (June 2009) .........................................................................14 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 13
(2010)....................................................................................................................10

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INTEREST & IDENTITY OF AMICI CURIAE Amici are scholars specializing in the law of prisons and jails. They have substantial academic, pedagogical, and professional experience bearing on the legal questions presented, as well as a professional interest in the proper development of the law. A full list of amici is attached as Appendix A.1
INTRODUCTION & SUMMARY OF ARGUMENT The Sheriff contends that his attempted compliance with CDC guidelines defeats any finding that he violated the Fourteenth Amendment at the Cook County Jail. This argument is mistaken for two distinct reasons. First, the Sheriff’s position is foreclosed by precedent holding that agency standards are not conclusive on the constitutional question of objective reasonableness. Second, the CDC guidelines are not the kind of agency standard that should receive weight in the constitutional analysis: they were issued early in the pandemic when information was even scarcer than currently, they have not been updated in relevant respects in light of new public health data, and they contain an irregular “feasibility” exception without any apparent basis in public health or safety principles. Given these considerations, the district court appropriately concluded that the Sheriff’s efforts at complying with the
1 Pursuant to Fed. R. App. P. 29(a)(4)(E), amici state that no party’s counsel authored the brief in whole or in part; no party’s counsel contributed money that was intended to fund preparing or submitting the brief; and no person—other than amici and their counsel—contributed money that was intended to fund preparing or submitting the brief. Appellees have consented to this filing, but Appellant has not.
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CDC guidelines did not prevent legal scrutiny of his official conduct—including his decisions respecting group housing and double celling, which effectively preclude hundreds of detainees at the Cook County Jail from engaging in social distancing.
I. Pretrial detainees enjoy a presumption of innocence and therefore cannot be subjected to conditions amounting to punishment. See Bell v. Wolfish, 441 U.S. 520, 537 (1979). A prison official violates the rights of pretrial detainees when he acts “purposefully, knowingly, or perhaps even recklessly” and when his conduct is objectively unreasonable. See McCann v. Ogle Cty., 909 F.3d 881, 886 (7th Cir. 2018); see also Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015). While the Sheriff seeks to muddy the waters, the fundamental issue here is whether he acted in an objectively unreasonable manner by deciding to house hundreds of pretrial detainees in conditions that make social distancing impossible. With respect to that issue, the Sheriff suggests that his attempted compliance with CDC guidelines is conclusive. See Appellant’s Br. at 34-36, 44-45, 48. This argument, however, rests on legal error. As federal courts have long recognized, compliance with agency and professional organization standards is neither necessary nor sufficient to satisfy the Constitution’s requirement of objective reasonableness. See, e.g., Brown v. Plata, 563 U.S. 493, 539-40 (2011); Bell, 441 U.S. at 543 n.27; United States v. Brown, 871 F.3d 532, 536-37 (7th Cir. 2017); Thompson v. Chicago, 472 F.3d 444, 454 (7th Cir. 2006); Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004). To be sure, these sorts
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of standards may be “instructive in some cases.” Bell, 441 U.S. at 543 n.27. But they can at most illuminate—and not answer—the constitutional question. This is clear from precedent analyzing the constitutional relevance of many other national standards, including those issued by the American Correctional Association (ACA) and those issued pursuant to the Prison Rape Elimination Act (PREA).
II. The district court treated the Sheriff’s attempted compliance with the CDC guidelines as relevant but not controlling. This was reasonable. The CDC guidelines were created by an expert agency and contain many recommendations consistent with the CDC’s advice to the general public—particularly regarding the importance of social distancing. However, the CDC guidelines were issued just a few weeks into the pandemic, have not been regularly updated, and have not kept pace with the latest science. Moreover, the guidelines do not purport to define a set of recommendations that would ensure health and safety in a jail, and they are thus different in kind than most other standards. The CDC guidelines instead offer a suite of recommendations and then provide—without any noted basis in public health principles—that some of these recommendations may not be “feasible in all facilities.” Because the guidelines contain this irregular (and expansive) internal loophole, which invites officials to disregard public health principles where they see compliance as too costly or burdensome, they do not in fact define a health and safety standard worthy of much deference in deciding whether the Sheriff upheld constitutional requirements.
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ARGUMENT I. DUE PROCESS CLAUSE REQUIREMENTS ARE DISTINCT FROM
AGENCY AND PROFESSIONAL ORGANIZATION STANDARDS A. The Due Process Clause Requires that the Sheriff’s Conduct at the
Cook County Jail Be Objectively Reasonable Pretrial detainees “have not been convicted of anything, and they are still entitled to the constitutional presumption of innocence.” Miranda v. Cty. of Lake, 900 F.3d 335, 350 (7th Cir. 2018). They thus enjoy greater protections than persons convicted of crimes. In particular, they cannot be exposed to conditions that “amount to punishment.” Bell v. Wolfish, 441 U.S. 520, 537 (1979). This rule follows from the Due Process Clause, which governs all “conditions-of-confinement claims brought by pretrial detainees.” Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019). In assessing such claims, courts do not require any proof of subjective malice. See Kingsley v. Hendrickson, 576 U.S. 389, at 395 (2015). They instead ask two questions: (1) whether the defendant “acted purposefully, knowingly, or perhaps even recklessly,” and (2) whether the defendant’s conduct was “objectively reasonable.” McCann v. Ogle Cty., 909 F.3d 881, 886 (7th Cir. 2018). Here, the Sheriff seeks to reframe that inquiry in two respects. For starters, he argues that the constitutional analysis must address his full course of conduct in responding to the pandemic—and not his specific decisions that make social distancing impossible for many detainees. See Appellant’s Br. at 23. That argument
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is a distraction. His choice to impose this restriction is a distinct policy in its own right and a critical feature of his broader policy; in either case, it is no stray detail. The Sheriff is well aware of the threat posed by COVID-19; he knows that social distancing rests at the heart of any effort to contain it; and he made a considered choice to adopt the policies challenged here. The district court found that this decision resulted in a “heightened, and potentially unreasonable . . . risk of contracting and transmitting the coronavirus.” Mays v. Dart, No. 20 Civ. 2134, 2020 WL 1987007, *27 (N.D. Ill. Apr. 27, 2020). The Sheriff’s broader efforts, even those undertaken in good faith, do not preclude assessing whether the specific policy enjoined below violates detainees’ constitutional rights.
As a fallback, the Sheriff implies that his decision to house detainees in conditions that make social distancing impossible does not reflect reckless disregard for the consequences. See Appellant’s Br. at 24-33. But precedent forecloses his position. This is not like a case where “an officer’s Taser goes off by accident,” Kingsley, 576 U.S. at 396, or where doctors “mixed up [a patient’s] chart with that of another detainee,” Miranda, 900 F.3d at 354. The Sheriff knows that the virus is spreading through his jail and made a choice that foreseeably denies many detainees the single most effective preventive measure. In that respect, this is much more like a case where doctors “deliberately chose a ‘wait and see’ monitoring plan, knowing that [a detainee] was neither eating nor drinking nor competent to care for herself.”
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Miranda, 900 F.3d at 354. The district court did not err in holding the Sheriff responsible for making a decision with potentially deadly consequences.
That leaves only one final question: whether the Sheriff’s conduct— specifically, his conduct in establishing the challenged policy on double celling and group housing—was objectively reasonable. This question does not turn on subjective good faith or on evidence of the Sheriff’s motives; it looks only to the Sheriff’s conduct and asks whether it is objectively reasonable. That assessment, in turn, cannot be undertaken “mechanically.” Kingsley, 576 U.S. at 397. It requires the Court to “focus on the totality of facts and circumstances faced by the [Sheriff] and to gauge objectively—without regard to any subjective belief held by [the Sheriff]— whether [his] response was reasonable.” McCann, 909 F.3d at 886. Of course, the Court must also account for the “legitimate interests” that stem from the Sheriff’s institutional responsibilities. Kingsley, 576 U.S. at 397. In the end, it is for the Court to decide whether the Sheriff’s decision reflects an objectively reasonable exercise of his power to control conditions at the Cook County Jail.
B. Agency and Professional Organization Guidelines May Illuminate the Objective Reasonableness Analysis but Cannot Control It
The Sheriff suggests that the objective reasonableness analysis must be cut short—and resolved in his favor—if he demonstrates compliance with the CDC Guidelines. See Appellant’s Br. at 34-36, 44-45, 48. He does not assert that such

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compliance is required, but rather that it affords him a constitutional safe harbor. That position is misplaced as a matter of settled constitutional law.
This is not the first time a federal court has been asked to defer to an agency or professional organization’s standards about conditions of confinement. As the Fifth Circuit held in a leading case, compliance with such standards does not guarantee constitutionality: it would be “absurd to suggest that the federal courts should subvert their judgment as to alleged Eighth Amendment violations to [a professional group] whenever it has relevant standards.” Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004). The Supreme Court long ago established a clear limiting principle: while agency and professional guidelines “may be instructive in certain cases, they simply do not establish the constitutional minima” for purposes of assessing the objective reasonableness of carceral conditions. Bell, 441 U.S. at 543 n.27. Many courts have since reaffirmed that rule. See, e.g., Brown v. Plata, 563 U.S. 493, 539–40 (2011) (“[C]ourts must not confuse professional standards with constitutional requirements.”); Rhodes v. Chapman, 452 U.S. 337, 348 n.13 (1981); Tillery v. Owens, 907 F.2d 418, 426 (3d Cir. 1990) (“Because we look to societal standards as our benchmark, expert opinions and professional standards, while instructive, are not determinative.”); Inmates of Occoquan v. Barry, 844 F.2d 828, 839 (D.C. Cir. 1988) (reversing district court analysis as over-reliant on “standards promulgated by various professional organizations”); Cody v. Hillard, 830 F.2d 912,
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914 (8th Cir. 1987) (“The Supreme Court has explicitedly [sic] rejected the proposition that such standards establish a constitutional norm.”).
There are three principal reasons why federal courts do not treat compliance with agency and professional organization standards as either necessary or sufficient to satisfy the Constitution. First, in cases addressing whether noncompliance with these sorts of standards establishes a constitutional violation, courts have recognized that they are often contested or based on value judgments that might not be shared by society at large—and thus they cannot appropriately define what is objectively reasonable. See Rhodes, 452 U.S. at 348 n.13 (“[G]eneralized opinions of experts cannot weigh as heavily in determining contemporary standards of decency as ‘the public attitude toward a given sanction.’” (citation omitted)). Second, it is the role of courts, not executive branch agencies and professional organizations, to define constitutional standards and assess objective reasonableness. See Bell, 441 U.S. at 543 n.27; Gates, 376 F.3d at 337. Finally, in a totality of the circumstances analysis, no single “framework” established by an agency or professional organization can be determinative in a particular case because no guidelines can properly anticipate all relevant factual considerations bearing on the legal determination. Thompson v. Chicago, 472 F.3d 444, 454 (7th Cir. 2006); see also United States v. Brown, 871 F.3d 532, 536–37 (7th Cir. 2017) (“An officer’s compliance with or deviation from departmental policy doesn’t determine whether he used excessive force.”); Orr v.
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Shicker, 953 F.3d 490, 502 (7th Cir. 2020) (noting that compliance with professionally developed medical protocols could not defeat an Eighth Amendment claim where the plaintiff’s disease had progressed far enough to require treatment).
While many of these cases indicate that compliance with third party standards is not necessary to comply with the Constitution, it follows directly from their reasoning that compliance with such standards is likewise not sufficient to demonstrate compliance. See Axelson v. Watson, 746 F. App’x 600, 602 (8th Cir. 2018) (“[P]urported compliance with [a professional organization’s] minimum standards did not establish, as a matter of law, that the unit was staffed according to the requirements of the Eighth Amendment”). Indeed, this Court has expressly said as much in the very closely related Fourth Amendment context, where police officer conduct involving the use of force is similarly subject to objectiveness reasonableness analysis. See, e.g., United States v. Brown, 871 F.3d at 536–37 (“The excessive-force inquiry is governed by constitutional principles, not policedepartment regulations. An officer’s compliance with or deviation from departmental policy doesn’t determine whether he used excessive force. Put another way, a police officer’s compliance with the rules of his department is neither sufficient nor necessary to satisfy the Fourth Amendment’s reasonableness requirement.” (citation omitted)); Thompson, 472 F.3d at 454 (“[W]hile the [police department’s] General Order may give police administration a framework whereby
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commanders may evaluate officer conduct and job performance, it sheds no light on what may or may not be considered ‘objectively reasonable’ under the Fourth Amendment given the infinite set of disparate circumstances which officers might encounter.”); see also N.S. v. Kansas City, Mo., Bd. of Police Comm’rs, No. 4:16 Civ. 843, 2018 WL 10419366, at *3 (W.D. Mo. Feb. 7, 2018) (“National standards are relevant to the extent that they reflect the informed experience of the occupation or profession. They do not, in any way, supplant standards provided for by the law.” (citation omitted)).
As these cases recognize, agency and professional organization standards answer different questions, and do so at a more abstract level, than the highly factintensive objective reasonableness inquiry that the Constitution entrusts to courts. Just as third parties cannot define what the Constitution requires, nor can they define what conduct satisfies it. Cf. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 13 (2010) (explaining that for purposes of tort law, an “actor’s compliance with the custom of the community, or of others in like circumstances . . . does not preclude a finding of negligence”); The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (L. Hand, J.) (“[I]n most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are
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precautions so imperative that even their universal disregard will not excuse their omission.”).
That is not to say agency and professional organization standards are entirely irrelevant. As the Supreme Court affirmed in Bell, they “may be instructive in certain cases.” 441 U.S. at 543 n.27. This is particularly true where an issue is complex and specialized in ways that elude ordinary judicial experience and common sense. See Brown, 871 F.3d at 538 (“The level of factual complexity in the case may also bear on the relevance of expert testimony . . .”); Carroll v. DeTella, 255 F.3d 470, 47273 (7th Cir. 2001) (assigning great importance to compliance with official environmental standards in a case where inmates sued under the Eighth Amendment based on alleged exposure to environmental hazards).
Consistent with these principles, federal courts consider agency and professional organization standards only to the extent that doing so fairly illuminates the ultimate issue of objective reasonableness. There are at last three fundamental considerations relevant to that determination: (1) whether the standards reflect an exercise of professional expertise on an issue beyond the ken of common sense; (2) whether the standards in fact establish a baseline of policies, procedures, or conduct that ensure health and safety; and (3) whether the standards are applicable to the fact pattern in a given case. In some respects, agency and professional organization standards thus receive something like Skidmore deference. See Skidmore v. Swift &
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Co., 323 U.S. 134, 140 (1944) (articulating a standard of deference to agency action dependent upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control”).
This approach is evident in how federal courts have treated such standards in the carceral context. The following examples exemplify that point:
American Correctional Association (ACA) Standards: The ACA was established in 1870 and began developing prison standards in the 1940s.2 For the last eighty years, the ACA has published and updated standards to reflect the correctional field’s evolving understanding of the professional operation of jails and prisons. The Committee on Standards consists of twenty experts and meets biannually to update existing standards and create new standards.3 Other experts may also propose revisions and submit comments for the Committee to consider at their bi-annual meetings. Id. As a result, the ACA standards are based on a measure of

2 The History of Standards & Accreditation, ACA, http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Standards___Accreditation/ About_Us/ACA_Member/Standards_and_Accreditation/SAC_AboutUs.aspx?hkey =bdf577fe-be9e-4c22-aa60-dc30dfa3adcb (last visited July 24, 2020).
3 Committee on Standards, ACA, http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Standards_and_Accreditatio n/Standards_Committee/Standards_Committee.aspx?WebsiteKey=139f6b09-e1504c56-9c66-284b92f21e51&hkey=795105de-6a67-4769-b58a0de6df7e8324&New_ContentCollectionOrganizerCommon=2#New_ContentColle ctionOrganizerCommon (last visited July 24, 2020).
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professional expertise and reflect meaningful expert deliberation. But by their plain terms, the ACA standards do not purport to establish a universal baseline of acceptable safety protocols. Rather, the ACA standards are designed only “to enhance correctional practices for the benefit of inmates, staff, administrators, and the public.”4
Accounting for all this, courts occasionally consult the ACA standards while analyzing conditions of confinement claims, but do not assign them controlling weight in the constitutional calculus. See, e.g., Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 375 n.3, 391 n.13 (1992) (noting that a district court reasonably relied on the ACA standards in issuing a consent decree, but observing that the standards did not establish the constitutional minimum in a challenge to double-celling); Payette v. Hoenisch, 284 F. App’x 348, 352 (7th Cir. 2008) (citing the ACA standards as “[c]onsistent with” constitutional holdings on permissible conditions of confinement); Duran v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985) (concluding that “the Constitution does not forbid” a specific practice at odds with ACA standards); see also Axelson, 746 F. App’x at 602 (observing that “compliance with ACA’s minimum standards did not establish” compliance with the Eighth Amendment).

4 Standards & Accreditation, ACA, http://www.aca.org/aca_prod_imis/aca_member/ACA_Member/Standards_and_Ac creditation/StandardsInfo_Home.aspx (last visited July 24, 2020).
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Prison Rape Eliminate Act (PREA) Standards: These standards were created pursuant to the Prison Rape Elimination Act, which Congress passed in 2003 to “develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape.” 34 U.S.C. § 30302(3). The final PREA standards are the result of a nine-year process, involving a massive study by the National Prison Rape Elimination Commission and the issuance of notice-and-comment regulations by DOJ based on the Commission’s proposals. See National Prison Rape Elimination Commission Report, NAT’L CRIMINAL JUSTICE REFERENCE SERVICE (June 2009). Although the PREA standards reflect expertise and rigorous process, Congress did not make them binding on local or state prisons. See 34 U.S.C. § 30307(b). Courts have therefore considered the PREA standards in cases arising from carceral settings while emphasizing that they do not control the constitutional inquiry. See J.K.J. v. Polk Cty., 960 F.3d 367, 384 (7th Cir. 2020) (en banc) (“PREA is not a constitutional standard, and jails are not required to adopt it.”); see also id. (treating the fact that the defendants had “scoffed at PREA” as supporting the jury’s evidentiary finding that the defendants had engaged in deliberate inaction).
Agency Guidelines: State and federal agency guidelines take many shapes, reflect varied levels of expert study, and address themselves to diverse issues. In general, where prisons comply with expert agency guidelines that credibly establish baseline health and safety standards for the general public, that compliance warrants
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substantial deference because the Constitution does not require correctional facilities to be safer than the rest of American society. See, e.g., Carroll, 255 F.3d at 472-73 (holding that a prison’s compliance with EPA safety standards governing acceptable levels of lead and radium in the water supply defeated an Eighth Amendment claim); Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (relying, in part, on a prison’s compliance with CDC tuberculosis treatment guidelines to conclude that a warden had not shown deliberate indifference to the risk of infection). In contrast, where agency guidance sets a standard that is unreasonable as applied in a particular setting, courts assign it little weight in the constitutional analysis. See, e.g., Darrah v. Krisher, 865 F.3d 361, 369 (6th Cir. 2017) (holding that limited compliance with an Ohio Department of Medical Health treatment plan was irrelevant where the specific treatment at issue was nonetheless plainly unreasonable); French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985) (“The eighth amendment does not . . . require complete compliance with the numerous OSHA regulations.”).
As these examples demonstrate, compliance with agency and professional organization standards is never conclusive under the Constitution. At most, it has some relevance in some cases as to some kinds of standards. The key question is always whether compliance with a particular standard in fact sheds light on whether an official acted in an objectively reasonable manner given the facts before them.

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II. THE CDC GUIDELINES AT ISSUE HERE ARE ENTITLED TO LITTLE WEIGHT IN DUE PROCESS CLAUSE ANALYSIS
The district court concluded that the Sheriff’s attempted compliance with CDC guidelines was relevant but not determinative of the objective reasonableness of his conduct. See Mays, 2020 WL 1987007 at *27 (“[T]he CDC Guidelines are an important piece of evidence to consider in assessing the Sheriff’s conduct, but they cannot be appropriately viewed as dispositive standing alone.”). In reaching this conclusion, the district court navigated a middle ground between the parties, who framed the CDC guidelines are conclusive (the Sheriff) or irrelevant (Plaintiffs). This was a reasonable conclusion. Contrary to the Sheriff’s position on appeal, the district court neither erred nor contravened the CDC guidelines in finding that his decision to continue using group housing and double celling was objectively unreasonable.
There are several features of the CDC guidelines that support the district court’s middle ground approach: (1) they were created by a respected agency with expertise in controlling the spread of infectious diseases; (2) they were nonetheless created in the early days of the pandemic and have not been subject to active expert refinement in light of new public health data; and (3) they contain a broad, vague feasibility carve-out that is not itself based on any expert judgment about how to ensure health and safety in custody during the pandemic. We will discuss each of these points in turn and then return to the district court’s analysis.
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First, the CDC is an agency with substantial expertise in controlling the spread of infectious disease—and the guidelines do contain extensive recommendations about how best to slow the spread of the coronavirus in jails, prisons, and other detention facilities. These recommendations, moreover, are broadly consistent with the CDC’s public health advice to the general public. That is particularly true of the CDC’s position on the importance of social distancing, which the guidelines describe as a “cornerstone” of reducing disease transmission and which the CDC has elsewhere described as the “best way” to reduce the spread of the virus.5 This accords with the overwhelming public health consensus that social distancing is the “only way to prevent . . . uncontrolled spread of the virus.” Gonsalves Declaration ¶ 29 (Dkt. 55-7), Mays v. Dart, No. 20 Civ. 2134 (N.D. Ill. Apr. 14, 2020); see also Mohareb Declaration at 6 (Dkt. 64-3), Mays v. Dart, No. 20 Civ. 2134 (N.D. Ill. Apr. 19, 2020) (“Without social distancing, medical experience demonstrates that the rate of transmission will be rampant and uncontrolled.”).
Second, although the CDC guidelines set forth useful and relevant scientific advice, they did not result from the sort of deliberative process or empirical research that ordinarily leads courts to defer to third party standards (such as the ACA and PREA standards). Indeed, the CDC issued its guidelines—without public comment

5 See Social Distancing, CDC, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/social-distancing.html (last visited July 24, 2020).
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and amid reports of improper political interference6—just a few weeks after COVID19 came to be widely recognized as an urgent public health crisis. Since the guidelines were issued on March 23, the CDC has issued only a single, partial update.7 In the meantime, nine of the ten largest COVID-19 outbreaks in the country have been linked to jails, prisons, or detention centers, and the CDC has recognized that jails and prisons are struggling (and often failing) to contain the outbreak.8 Given the many issues the CDC is now facing, it is perhaps understandable that the agency has not moved more quickly to update these guidelines in light of the latest public health data. But the minimal process surrounding issuance of the guidelines, as well as the CDC’s failure to actively revisit and revise them (or to draw upon

6 See APHA condemns political interference in CDC work, AMERICAN PUBLIC HEALTH ASSOCIATION (May 18, 2020), https://www.apha.org/news-andmedia/news-releases/apha-news-releases/2020/apha-supports-cdc; see also Mike Stobbe and Bernard Condon, Coronavirus data is funneled away from CDC, sparking worries, ASSOCIATED PRESS (July 15, 2020), https://apnews.com/57de8f0d25d9066731e6bd8cad0373c4.
7 The CDC also released supplemental guidance relating only to testing in jails and prisons but not to other preventative measures. See Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities, CDC (July 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/testing.html. These recommendations are not at issue here.
8 See Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES (July 16, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html#clusters; Megan Wallace et al, COVID-19 in Correctional and Detention Facilities – United States, February-April 2020, CDC (May 15, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm.
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public comment in doing so), cuts against presuming that the guidelines truly state a standard of objectively reasonable conduct for ensuring health and safety at jails.
Finally, and most important, the guidelines do not even purport to establish such a standard. They are thus different in kind than the ACA and PREA standards. To be sure, most of the language in the guidelines looks something like a health and safety standard. That includes the suite of recommended measures within jails and prisons that echo the public health consensus on COVID-19 (e.g., calling for regular cleaning, infection control through the use of personal protective equipment, testing and tracing, and medical isolation of individuals who test positive). See Venters Declaration ¶ 19 (Dkt. 64-2), Mays v. Dart, No. 20 Civ. 2131 (N.D. Ill. Apr. 19, 2020). It also includes the guidelines’ heavy emphasis on social distancing, which tracks a broader expert consensus that social distancing is crucial to reducing disease transmission. See supra at 17.
But then the guidelines assert that officials need not do any of that if they conclude it is not “feasible.” More precisely, the guidelines note that “[n]ot all strategies will be feasible in all facilities,” and that social distancing will accordingly “need to be tailored to the individual space in the facility and the needs of the population and staff.” These “feasibility carveouts” are not presented as conclusions reflecting the CDC’s unique expertise. Nor are they presented as arising from any sound principle of public health policy. That is because they are not. See Venters
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Decl. ¶ 18 (“The fact that the CDC adds the phrase ‘if possible’ or ‘if space allows’ in its guidance specifically directed at detention centers . . . does not alter the clear medical consensus on social distancing.”). Rather, the CDC appears to have simply asserted that standard public health measures—which it elsewhere urges the public to follow—may be weakened in jails without any health- or safety-based justification whatsoever. This is a bizarre carveout, given that the risk of disease transmission (and the need for preventive measures) is much greater for detained persons than members of the general public.9
On its face, this unexplained, unscientific feasibility carveout makes the CDC guidelines entirely different from the standards that federal courts occasionally consider in assessing objective reasonableness under the Constitution. The normal course would be for the CDC to issue guidelines aimed at ensuring health and safety; for officials to adopt policies appropriate for their own jails; and for courts to assess the constitutional adequacy of those policies with reference to the CDC’s standards.10 In contrast, it is abnormal for an agency to itself say that health and

9 See Brendan Saloner, Kalind Paris, Julie A. Ward, et al., COVID-19 Cases and Deaths in Federal and State Prisons, JAMA (July 8, 2020) (reporting findings that the infection rate is 5.5 times higher in prisons as compared to the general public— and that the age-adjusted death rate is three times higher in prisons as compared to the general public).
10 See CDC Regulations, CDC (June 30, 2016), https://www.cdc.gov/regulations/index.html (explaining that CDC rules and regulations are promulgated pursuant to notice and comment rulemaking).
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safety guidelines can be disregarded if an official deems them too burdensome, and for an official to then claim that he is shielded from constitutional scrutiny because he complied with guidelines that contain the giant loophole. As the district court concluded, “from a constitutional-law standpoint, it is difficult to believe that ‘do what you can, but if you can’t, so be it’ satisfies a jailer’s obligation to take objectively reasonable steps to mitigate known risks to the life and health of people in his custody who are detained awaiting determination of their guilt or innocence.” Mays, 2020 WL 1987007 at *27.
In sum, the CDC guidelines contain many recommendations about health and safety procedures in the carceral setting that reflect a reasoned exercise of agency expertise and that are consistent with its general advice about slowing disease transmission. These include its recommendations about the central role of social distancing. However, the CDC guidelines were produced in the early days of the pandemic, without public comment, and have seen no relevant updates since. Moreover, they contain a broad feasibility carveout that is not presented as arising from any settled public health principle and that the CDC does not claim is meant to advance health and safety in a carceral setting. The district court therefore concluded that the CDC’s recommendations are particularly compelling as to the importance of social distancing—and that they lack persuasive force to the extent they give officials like the Sheriff carte blanche to ignore public health principles wherever
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they deem compliance infeasible. See id. at *26–27. This decision was reasonable and consistent with precedent. See supra at 6–11. The Sheriff’s position should therefore be rejected, and the decision below affirmed.

* * * * * The Sheriff made a policy decision with respect to group housing and double celling that makes social distancing—the single most effective preventive measure—impossible for hundreds of detainees at the Cook County Jail. As the district court found, this conduct violated the Due Process Clause. Contrary to the Sheriff’s assertions, it is not salvaged by his attempted compliance with the CDC guidelines, which quite unusually suggest that measures essential to preserving detainee health and safety can be ignored if they are difficult or costly to implement. Neither common sense nor the Constitution countenances that conclusion, which would undermine core safeguards, and which is at odds with this Court’s precedents.

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CONCLUSION For the reasons set forth above, amici respectfully request that this Court affirm the judgment below.

Dated: July 24, 2020

Respectfully Submitted, /s/ Joshua Matz
JOSHUA MATZ KAPLAN HECKER & FINK LLP 350 FIFTH AVENUE | SUITE 7110 NEW YORK, NY 10118 (212) 763-0883 jmatz@kaplanhecker.com
Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE Counsel for amici curiae certifies that this brief contains 5,282 words, based on the “Word Count” feature of Microsoft Word 2016. Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B)(iii), this word count does not include the words contained in the Corporate Disclosure Statement, Table of Contents, Table of Authorities, and Certificates of Counsel. Counsel also certifies that this document has been prepared in a proportionally spaced typeface using 14-point Times New Roman in Microsoft Word 2016.

Dated: July 24, 2020

By: /s/ Joshua Matz JOSHUA MATZ Counsel for Amici Curiae

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CERTIFICATE OF SERVICE Counsel for amici curiae certifies that on July 24, 2020 I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: July 24, 2020

By: /s/ Joshua Matz JOSHUA MATZ Counsel for Amici Curiae

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APPENDIX A
Amici join this brief as individuals; institutional affiliation is noted for informational purposes only and does not indicate endorsement by institutional
employers of positions advocated.
• Margo Schlanger, Wade H. and Dores M. McCree Collegiate Professor of Law, University of Michigan Law School.
• Sharon Dolovich, Professor of Law, Director, UCLA Covid-19 Behind Bars Data Project, Director, Prison Law and Policy Program, University of California, Los Angeles School of Law.
• Hadar Aviram, Thomas Miller ‘73 Professor of Law, University of California, Hastings College of the Law.
• Bryonn Bain, Associate Professor, Department of African American Studies, Department of World Arts and Cultures, Director, UCLA Prison Education Program, University of California, Los Angeles.
• W. David Ball, Professor, Santa Clara University School of Law.
• Valena Beety, Professor of Law, Arizona State University Sandra Day O’Connor College of Law.
• Caitlin Henry, Lecturer, Sonoma State University.
• Aaron Littman, Binder Clinical Teaching Fellow, University of California, Los Angeles School of Law.
• Jules Lobel, Bessie McKee Walthour Chaired Professor, University of Pittsburgh Law School.
• Keramet Reiter, Associate Professor, University of California, Irvine School of Law.
• Judith Resnik, Arthur Liman Professor of Law, Yale Law School.
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• Ira P. Robbins, Barnard T. Welsh Scholar and Professor of Law, American University Washington College of Law.
• David Rudovsky, Senior Fellow, University of Pennsylvania Law School.

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 Mays v. Dart, 974 F.3d 810 (2020)

974 F.3d 810 United States Court of Appeals, Seventh Circuit.
Anthony MAYS, individually and on behalf of a class of similarly situated persons, et al., Plaintiffs-Appellees, v.
Thomas J. DART, Sheriff of Cook County, Illinois, Defendant-Appellant.
No. 20-1792 |
Argued August 18, 2020 |
Decided September 8, 2020
Synopsis Background: Pretrial detainees brought civil rights action challenging, on Fourteenth Amendment due process grounds, the close conditions of their confinement during corona virus pandemic. The United States District Court for the Northern District of Illinois, No. 20-cv-2134, Matthew F. Kennelly, J., 2020 WL 1987007, granted in part the detainees’ request for preliminary injunctive relief, and sheriff appealed.
Holdings: The Court of Appeals, St. Eve, Circuit Judge, held that:
mandatory preliminary injunction issued by district court, granting detainees certain relief with regard to double celling and group housing, had to be set aside, and
district court could consider the Center for Disease Control (CDC) Guidelines in deciding what, if any, preliminary injunctive relief to order.
Affirmed in part and reversed and vacated in part.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.
Appeal from the United States District Court for the Northern District of Illinois. No. 20-cv-2134 — Matthew F. Kennelly, Judge.
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Attorneys and Law Firms
Easha Anand, Attorney, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, San Francisco, CA, Steven Edwards Art, Attorney, Sarah Grady, Attorney, Jon C. Loevy, Attorney, LOEVY & LOEVY, Locke E. Bowman, III, Attorney, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Alexa Van Brunt, Attorney, MACARTHUR JUSTICE CENTER, Chicago, IL, Charles Gerstein, Attorney, Alec Karakatsanis, Attorney, CIVIL RIGHTS CORPS, Washington, DC, for Plaintiffs-Appellees.
Gretchen Harris Sperry, Attorney, Lari A. Dierks, Attorney, James M. Lydon, Attorney, Robert Thomas Shannon, Attorney, Adam R. Vaught, Attorney, HINSHAW & CULBERTSON LLP, Chicago, IL, for Defendant-Appellant.
Before Sykes, Chief Judge, and Brennan and St. Eve, Circuit Judges.
Opinion
St. Eve, Circuit Judge.
Plaintiffs—a class of detainees at the Cook County Jail—brought this action against Cook County Sheriff Thomas Dart after the Jail reported an outbreak of COVID-19, the disease caused by the novel coronavirus that has sparked a global pandemic. Plaintiffs contend that the Sheriff has violated their Fourteenth Amendment Due Process rights by failing to provide them with reasonably safe living conditions as the pandemic rages. Plaintiffs seek various forms of relief, including an injunction requiring the Sheriff to implement certain procedures related to social distancing, sanitation, diagnostic testing, and personal protective equipment (“PPE”) to protect them from the virus for the duration of the pandemic.
After a hearing, the district court granted a temporary restraining order imposing several forms of relief, including but not limited to, mandates requiring the Sheriff to provide hand sanitizer and soap to all detainees and face masks to detainees in quarantine. The district court declined to order relief in several instances, though: most notably for our decision today, the district court rejected Plaintiffs’ request to prohibit double celling and group housing arrangements to permit adequate social

Mays v. Dart, 974 F.3d 810 (2020)
distancing.
Plaintiffs subsequently moved for entry of a preliminary injunction, requesting an extension of the relief the district court previously mandated in the temporary restraining order and, among other things, renewing their request for socially distanced housing. After another hearing, the district court switched course from its prior ruling and granted the renewed social distancing request, albeit with certain exceptions. The district court also granted the request for an extension of the relief included in the temporary restraining order. The Sheriff appealed.
We conclude that, in the course of its analysis regarding double celling and group housing, the district court committed three distinct legal errors: the district court failed to consider the Sheriff’s conduct in its totality, failed to afford proper deference to the Sheriff’s judgment in adopting policies necessary to ensure safety and security, and cited an incorrect legal standard when evaluating the likelihood that Plaintiffs’ claims will succeed on their merits. Given these legal errors in evaluating the likelihood of success on the merits of Plaintiffs’ claims, we reverse the district court with respect to the portion of the preliminary injunction mandating socially distanced housing. Regarding the remaining relief, however, the district court made detailed factual findings, properly considered the Sheriff’s conduct in its totality, and closely tailored the relief it ordered to the guidelines promulgated by the Centers for Disease Control and Prevention (“CDC”). We therefore affirm all other aspects of the preliminary injunction.
I. Background
A. Factual Background At present, COVID-19 requires no introduction: the novel coronavirus causing this disease has spread around the world, resulting in an unprecedented global pandemic that has disrupted every aspect of public life. The virus, SARSCoV-2, causes symptoms ranging from fever to shortness of breath to loss of smell and can lead to serious health effects—including damage to internal organs and, in many cases, death. People over the age of sixty-five and with certain preexisting health conditions face a
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heightened risk of severe illness resulting from COVID-19. The virus transmits rapidly from person to person, primarily through respiratory droplets emitted by coughing or sneezing that can travel multiple feet and remain in the air for several hours, and also through lingering particles on surfaces. People may transmit the virus despite a lack of symptoms, making it difficult to take necessary precautions.
Society has, though, taken many precautions to attempt to curb the spread of COVID-19. Many states, including Illinois, presently require wearing face coverings in public spaces in order to slow the spread of COVID-19. States have ramped up testing capacity and contact tracing to identify those who have interacted with persons who later tested positive for the virus. Illinois and most other states implemented stay-at-home orders that forced people to socially distance, limiting interpersonal contacts and group activities: schools transitioned to remote learning, restaurants and bars closed, and officials largely cancelled public events.
The Cook County Jail is an enormous facility with the population of a small town. The inherent nature of the Jail presents unique challenges for combatting the spread of COVID-19: it is designed to accommodate large and densely-packed populations. Many detainees reside in “dormitory” units, meaning hundreds of detainees sleep in a single room on closely-spaced bunk beds, and there are many common spaces where detainees are in close proximity to one another. On April 8, 2020, The New York Times reported that, at that time, the Jail was the largest known-source of coronavirus infections in the United States. Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars (April 8, 2020) N.Y. Times, https://www.nytimes.com/2020/04/08/us/coronavirus-coo k-county-jail-chicago.html (last visited August 27, 2020). When Plaintiffs filed their motion for a preliminary injunction, on April 14, 541 detainees and Jail staff had tested positive for COVID-19. By April 23, only a few days before the district court issued the preliminary injunction that is the subject of this appeal, six detained persons had died from complications.
On March 23, the Center for Disease Control issued Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Guidelines”). The document “is intended to provide guiding principles for healthcare and non-healthcare administrations of correctional and detention facilities” to “help reduce the risk of

Mays v. Dart, 974 F.3d 810 (2020)
transmission and severe disease from COVID-19” in light of the unique challenges correctional and detention facilities present. The Guidelines recommend various measures, including making available sufficient hygiene and cleaning supplies, frequently cleaning and disinfecting high-touch surfaces and objects, and implementing social distancing strategies where feasible, among many others. The Guidelines note, in bold font, that the “guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.” Additionally, in the section recommending the implementation of social distancing in jails, the CDC’s guidance notes “[s]trategies will need to be tailored to the individual space in the facility and the needs of the population and staff.”
The Cook County Sheriff, who is responsible for operating the Jail, took numerous proactive measures to prevent the spread of COVID-19. As early as January 24, Roland Lankah, the Sheriff’s in-house Environmental Health Specialist and epidemiologist, began coordinating with the Cook County Health Infection Control Department to develop a plan for an outbreak. That plan involved increasing disinfection and sanitization, devising protocols to screen detainees for symptoms, and moving infected detainees to separate housing. Upon Governor Pritzker’s declaration of Illinois as a disaster area on March 9, the Sheriff set up a space for new detainees to quarantine for seven to fourteen days before entering the general population. By mid-March, First Assistant Executive Director Michael Miller was working to open three closed divisions of the Jail to create more single-cell units and reduce density. The Sheriff also coordinated with Senator Durbin’s office, the Federal Emergency Management Agency, and Governor Pritzker’s office to receive priority access to the national stockpile of PPE in Illinois. The Sheriff engaged various consultants, including a former CDC Director, to improve sanitation policies, policies relating to medical screening, and use of PPE. In coordination with other stakeholders in the Cook County criminal justice system, the Sheriff undertook efforts to reduce the Jail population through securing release or electronic monitoring for over 1,200 detainees. And, on April 1, the Sheriff’s Office contacted local authorities to obtain approval to administer Abbott Laboratories’ rapid test at the Jail. Cermak Health Services, a division of the Cook County Health and Hospital Systems, began administering these tests soon thereafter.
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B. Procedural Background On April 3, Anthony Mays and Kenneth Foster, two detainees at the Cook County Jail, sued Cook County Sheriff Thomas Dart on behalf of “all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic.” The class includes two subclasses: Subclass A, which consists of all people who are at an elevated risk of complications from COVID-19 due to age or an underlying medical condition, and Subclass B, which consists of all people housed on a tier where someone has tested positive for the virus. They assert violations of their rights under the Fourteenth Amendment to reasonably safe living conditions, bringing claims under 42 U.S.C. § 1983 and for writs of habeas corpus under 28 U.S.C. § 2241.
1. Temporary Restraining Order Plaintiffs moved for a temporary restraining order, requesting that the district court order the Sheriff to enact multiple measures designed to prevent the spread of COVID-19. On April 9, after conducting a hearing via telephone and reviewing numerous affidavits Plaintiffs submitted, the district court issued a temporary restraining order, though one considerably narrower than the order Plaintiffs requested. This temporary restraining order compelled the Sheriff to do the following:
• To establish “a policy requiring prompt coronavirus testing of detainees who exhibit symptoms consistent with coronavirus disease as well as, at medically appropriate times and to the extent feasible based on the acquisition of sufficient testing materials, detainees who have been exposed to others who have exhibited those symptoms or have tested positive for coronavirus.”
• To enforce “social distancing during the new detainee intake process, including suspending the use of bullpens to hold new detainees awaiting intake.”
• To provide “soap and/or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands” and “adequate sanitation supplies to enable all staff and detainees to regularly sanitize surfaces and objects on which the

Mays v. Dart, 974 F.3d 810 (2020)
virus could be present, including in all areas occupied or frequented by more than one person (such as two-person cells, as well as bathrooms and showers).”
• To establish “a policy requiring sanitization between all uses of frequently touched surfaces and objects as well as monitoring and supervision to ensure that such sanitization takes place regularly.”
• To “provide facemasks to all detainees who are quarantined—i.e., those who have been exposed to a detainee who is symptomatic (even if not coronavirus-positive).”
In imposing this relief, the district court made detailed factual findings about the policies the Sheriff had enacted and his successes and shortcomings in executing those policies. Throughout its decision, the district court relied heavily on the CDC Guidelines. Where the district court elected to impose the requested relief, the court noted that the evidence showed the Sheriff’s collective actions fell short of those recommended in the CDC Guidelines.
In several instances, though, the district court declined to implement additional relief where the evidence revealed that the Sheriff already had a policy in place—such as one requiring a fourteen-day quarantine of all new detainees—or existing measures were sufficient—such as those to enforce the use of PPE by Jail staff who come into contact with detainees. The court also overruled Plaintiffs’ requests for mandatory social distancing throughout the Jail and a directive to identify detainees who are at high risk for complications from COVID-19. In these instances, the court was unpersuaded that Plaintiffs were likely to succeed on the merits of their claim that the Sheriff’s conduct posed a constitutional violation.
Regarding social distancing in particular, the district court acknowledged the Sheriff’s “ongoing effort[s] to modify custodial arrangements” at the Jail to “permit greater separation of detainees,” but noted that “space constraints” at the Jail preclude “complete social distancing.” The court cited the CDC Guidelines, which “expressly recognize that complete social distancing may not be possible in the sleeping areas of a jail.” The court also acknowledged that “[s]pace constraints at the Jail do not allow for the more preferable degree of social distancing that exists in the community at large.” The court thus concluded that “plaintiffs have [failed] to show a reasonable likelihood of success on their contention that
4

the Sheriff is acting in an objectively unreasonable manner by failing to mandate full social distancing” and that this was “particularly so because the Sheriff’s submission reflects an ongoing effort to modify custodial arrangements at the Jail in a way that will permit greater separation of detainees.”
2. Preliminary Injunction On April 14, Plaintiffs moved for entry of a preliminary injunction. Relevant to our decision today, Plaintiffs sought to extend the relief the court imposed in the temporary restraining order and again requested a mandate for social distancing throughout the Jail. The Sheriff opposed the motion, and, regarding the request for social distancing, argued that his efforts were consistent with the CDC Guidelines, that he had already taken substantial steps to implement social distancing, and that further steps were impossible. The Sheriff submitted a progress report on efforts to contain the coronavirus. Regarding social distancing, the progress report described efforts to open previously closed divisions, transition 175 tiers to single-cell housing, and reduce dormitory capacity to below fifty percent, except for detainees in certain medical or restricted housing. The Sheriff also had worked with criminal justice stakeholders to secure the release of more than 1,200 detainees with appropriate bond conditions, increased single-cell housing at the Jail by approximately 545%, and decreased double-celled housing at the Jail by over 90%.
The district court conducted a preliminary injunction hearing via videoconference and permitted each side to call one witness in addition to submitting affidavits. The court ultimately granted Plaintiffs’ motion in part. Regarding Plaintiffs’ § 1983 claim, the court conditionally certified the proposed class to the extent Plaintiffs requested a conversion of the temporary restraining order to a preliminary injunction and a mandate requiring increased social distancing. The court then proceeded to the question of whether Plaintiffs had demonstrated that they had a “better than negligible chance” of succeeding on their contention that the Sheriff’s conduct in addressing the risks posed by exposure to the coronavirus is objectively unreasonable. The court acknowledged the “significant, and impressive, effort” the Sheriff had undertaken, and noted that, if this were an Eighth Amendment claim, this finding regarding the Sheriff’s efforts would likely end the matter.

Mays v. Dart, 974 F.3d 810 (2020)

The court focused on Plaintiffs’ renewed request for a policy precluding double celling and group sleeping arrangements to facilitate social distancing. The court first explained that the CDC Guidelines, which set a feasibility limitation on social distancing practices, are relevant but not dispositive. The court then determined that “group housing and double celling subject detainees to a heightened, and potentially unreasonable and therefore constitutionally unacceptable, risk of contracting and transmitting the coronavirus.” Thus, after making a passing reference to the Sheriff’s interest in discipline and security in the Jail and dismissing the Sheriff’s contention that he faced feasibility limitations on further social distancing, the court concluded that Plaintiffs were reasonably likely to succeed on their contention that group housing and double celling is objectively unreasonable, except in certain situations. In arriving at this conclusion, the court did not discuss any other aspect of the Sheriff’s response to COVID-19; instead, the court limited its discussion solely to the importance of social distancing. The court also rejected the Sheriff’s argument that his compliance with the temporary restraining order rendered its extension into a preliminary injunction unnecessary because the court could not conclude that the constitutional violations would not recur absent such an extension. The court did not revisit any of its findings related to the measures it ordered in the temporary restraining order.
Regarding the remaining preliminary injunction factors, the district court determined that Plaintiffs had shown that, without additional measures, they would likely suffer irreparable harm—including severe illness and death—and that damages could not fully remedy the risk they faced. Lastly, the district court determined the balance of harms weighed in favor of Plaintiffs. The court therefore issued a preliminary injunction extending all of the relief included in the temporary restraining order, with the additional requirement of a policy precluding group housing and double celling except in certain situations, such as when a medical or mental health professional has determined a detainee poses a risk of suicide or self-harm if placed in a single cell or when a detainee requires medical treatment not available in socially distanced housing.
The Sheriff appealed, challenging the entire preliminary injunction but directing the bulk of his arguments to the prohibition against double celling and group housing.
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II. Discussion
“To obtain a preliminary injunction, a plaintiff must show that: (1) without this relief, it will suffer ‘irreparable harm’; (2) ‘traditional legal remedies would be inadequate’; and (3) it has some likelihood of prevailing on the merits of its claims.” Speech First, Inc. v. Killeen, 968 F.3d 628, 637 (7th Cir. 2020) (quoting Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068 (7th Cir. 2018)). If a plaintiff makes such a showing, the court proceeds to a balancing analysis, where the court must weigh the harm the denial of the preliminary injunction would cause the plaintiff against the harm to the defendant if the court were to grant it. Courthouse News Serv., 908 F.3d at 1068. This balancing process involves a “sliding scale” approach: the more likely the plaintiff is to win on the merits, the less the balance of harms needs to weigh in his favor, and vice versa. Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001). Mandatory preliminary injunctions—those “requiring an affirmative act by the defendant”—are “ordinarily cautiously viewed and sparingly issued.” Graham v. Medical Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997); see also Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013) (review of a preliminary injunction is “even more searching” when the injunction is “mandatory rather than prohibitory in nature.”)
While we review the district court’s balancing of the harms for an abuse of discretion, we review its legal conclusions de novo and its findings of fact for clear error. C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541, 545 (7th Cir. 2020). “[A] factual or legal error may alone be sufficient to establish that the court ‘abused its discretion’ in making its final determination.” Lawson Prod., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir. 1986). “Absent such errors,” however, “we afford a district court’s decision ‘great deference.’ ” Speech First, Inc., 968 F.3d at 638 (quoting Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 2018)).
A. Socially Distanced Housing We first address the portion of the preliminary injunction aimed at socially distanced housing because that is the thrust of the Sheriff’s appeal. The parties do not dispute

Mays v. Dart, 974 F.3d 810 (2020)
the district court’s conclusions regarding the first two elements of the preliminary injunction standard: that Plaintiffs would suffer irreparable harm and that traditional legal remedies would be inadequate. Rather, the debate focuses entirely on the likelihood of success on the merits of their claim that the Sheriff’s actions (or inaction, as Plaintiffs contend) in response to COVID-19 are objectively unreasonable. We therefore limit our discussion to this threshold requirement.
We conclude that the district court committed three distinct legal errors: the court failed to consider the totality of the circumstances, the court failed to afford proper deference to the Sheriff’s judgment in adopting policies necessary to ensure safety and security in the Jail, and the court recited an incorrect legal standard when evaluating the likelihood that Plaintiffs’ contentions will succeed on their merits. We address each of these errors in turn.
1. Totality of the Conduct We start with the proper scope of the analysis under the more recent objective reasonableness inquiry for pretrial conditions of confinement claims. In Kingsley v. Hendrickson, 576 U.S. 389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), the Supreme Court concluded that, when bringing an excessive force claim, a “pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable,” rather than demonstrate deliberate indifference. Id. at 396–97, 135 S.Ct. 2466. Recognizing “that the Supreme Court has been signaling that courts must pay careful attention to the different status of pretrial detainees,” we held in Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir. 2018), that a pretrial detainee’s claims of inadequate medical care also “are subject only to the objective unreasonableness inquiry identified in Kingsley.” Id. at 352. We saw “nothing in the logic the Supreme Court used in Kingsley” to support a “dissection of the different types of claims that arise under the Fourteenth Amendment’s Due Process Clause.” Id. We likewise subsequently expanded this holding to encompass conditions of confinement claims under the Fourteenth Amendment Due Process Clause. Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (citing Kingsley, 576 U.S. at 396–97, 135 S.Ct. 2466). Accordingly, we must analyze Plaintiffs’ claim under the objective reasonableness inquiry articulated in Kingsley.1Id.
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The Supreme Court described the application of the objective reasonableness standard in Kingsley: “A court (judge or jury) cannot apply this standard mechanically. Rather, objective reasonableness turns on the facts and circumstances of each particular case.” 576 U.S. at 397, 135 S.Ct. 2466. We reiterated this principle in McCann v. Ogle Cty., Illinois, 909 F.3d 881 (7th Cir. 2018), explaining that, when evaluating whether challenged conduct is objectively unreasonable, courts must “focus on the totality of facts and circumstances.” Id. at 886.
The district court erred by narrowly focusing its objective reasonableness analysis almost exclusively on social distancing instead of considering the totality of facts and circumstances, including all of the Sheriff’s conduct in responding to and managing COVID-19. Citing McCann, the district court wrote, “To succeed on their claim, the plaintiffs must show that the Sheriff’s conduct in addressing the risks posed by exposure to coronavirus is objectively unreasonable in one or more respects.” (emphasis added). The district court then went on to emphasize social distancing and the Sheriff’s efforts to implement social distancing to the exclusion of the Sheriff’s other actions. This analysis incorrectly ignored the totality of the circumstances. It may very well be the case that a particular aspect of an action is so lacking that the failing on this one factor will lead a court to correctly conclude the entire course of challenged conduct was objectively unreasonable. It may also be that some actions or inactions are more consequential than others. But that does not mean that the court should evaluate each aspect of the disputed actions in a vacuum, especially in a case involving a systemic claim like here. Rather, the court must consider the total of the circumstances surrounding the challenged action.
In addition, the district court hinged its decision to impose a social distancing directive on the basis of one, and only one, key factual finding: “At the current stage of the pandemic, group housing and double celling subject detainees to a heightened ... risk of contracting and transmitting the coronavirus.” We do not suggest that this finding was erroneous: the district court had before it a voluminous evidentiary record about the importance of social distancing to reducing transmission of COVID-19. Instead, we take issue with what was missing: absent from the district court’s reasoning was any mention of the totality of the measures the Sheriff already had taken to combat the spread of COVID-19, including those regarding social distancing. By the time the district court issued the preliminary injunction, the Sheriff had already

Mays v. Dart, 974 F.3d 810 (2020)
implemented several such measures. Notably, and as the district court initially acknowledged in its temporary restraining order, these included substantial efforts to increase social distancing, such as opening shuttered divisions of the Jail, creating new single-cell housing, and decreasing the capacity of dormitories. The Sheriff had also undertaken extensive other measures to prevent and manage the spread of COVID-19 at the Jail. By failing to evaluate the request for a policy precluding double celling and group housing in light of the other aspects of the Sheriff’s COVID response, the district court did not properly consider the totality of the facts and circumstances when evaluating the objective unreasonableness of the Sheriff’s actions.
2. Deference to Correctional Administrators We turn to a second error: the failure to defer to correctional administrators in a matter implicating safety and security concerns. “When evaluating reasonableness, ... courts must afford prison administrators ‘wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ ” Henry v. Hulett, 2020 WL 469188, (7th Cir. 2020) (en banc) (quoting Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Likewise, a court must “account for the legitimate interests that stem from the government’s need to manage the facility in which the individual is detained.” Kingsley, 576 U.S. at 397, 135 S.Ct. 2466. Thus, “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Bell, 441 U.S. at 548, 99 S.Ct. 1861 (quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)). Correctional administrators must have “substantial discretion to devise reasonable solutions to the problems they face,” particularly when safety and security interests are at stake. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). Thus, “as part of the objective reasonableness analysis ... deference to policies and practices needed to maintain order and institutional security is appropriate.” Kingsley, 576 U.S. at 399–400, 135 S.Ct. 2466.
When evaluating Plaintiffs’ request for a policy precluding group housing and double celling, the district
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court made a passing reference to its obligation to “account for and give deference to the Sheriff’s interest in managing the Jail facilities and to practices that are needed to preserve order and discipline and maintain security.” The district court, however, did not discuss in a meaningful way how, if at all, the considerable deference it owed to the judgment of prison administrators impacted its analysis. Undoubtedly, safety and security concerns play a significant role in a correctional administrator’s housing decisions: jails and prisons require some degree of flexibility in choosing cell assignments, as they need to ensure, for example, that detainees are assigned to the living quarters corresponding with their security classifications and factoring in particular vulnerabilities that increase security risks. This is especially true at the Jail where the population fluctuates daily given the number of bookings and releases that take place. Correctional officers similarly must have the freedom to quickly reassign inmates when fights or other emergency situations occur that threaten the safety of staff and inmates. This is perhaps no more important than at a facility like the Cook County Jail, which houses a wide range of detainees accused of committing up to the most serious of violent offenses. Given the deference courts owe to correctional administrators on matters implicating safety concerns and the substantial role that security interests play in housing assignments, the failure to consider these interests was a legal error.
3. Likelihood of Success on the Merits Lastly, we address a third issue: the proper standard for evaluating the likelihood of success on the merits when considering a motion for a preliminary injunction. The district court began its analysis of Plaintiffs’ request for a policy requiring socially distanced housing by noting that, to demonstrate a likelihood of prevailing, Plaintiffs must show “only a better than negligible chance of success.” The district court explained this is a “low threshold.”
As we just explained in Illinois Republican Party v. Pritzker, ––– F.3d ––––, ––––, 2020 WL 5246656, at *2 (7th Cir. Sept. 3, 2020), “the ‘better than negligible’ standard was retired by the Supreme Court,” and is not the proper standard to apply when evaluating the likelihood of success on the merits in a preliminary injunction motion. The standard originated in Omega Satellite Prod. Co. v. City of Indianapolis, 694 F.2d 119 (7th Cir. 1982). But like many instances of selectively

Mays v. Dart, 974 F.3d 810 (2020)
quoted phrases, we did not use this phrase as an unadorned statement of the applicable standard. We said in Omega:
If the harm to the plaintiff from denial of the preliminary injunction would be very great and the harm to the defendant from granting it very small, then the injunction should be granted even if the defendant has a better chance of prevailing on the merits than the plaintiff, provided the plaintiff’s chances are better than negligible; and vice versa.
Id. at 123. As readily apparent, in context, we were explaining no more than what has become known as our sliding scale approach. Since Omega, though, we have at times—confusingly—cited the “better than negligible” phrase as if it were the proper standard for evaluating the likelihood of success on the merits at the preliminary injunction stage. See Ill. Republican Party, ––– F.3d at ––––, 2020 WL 5246656 at *2 (collecting cases).
The Supreme Court has invoked a higher standard. In Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), the Court stated that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits.” Id. at 20, 129 S.Ct. 365 (emphasis added). Similarly, when discussing the requisite showing to establish irreparable injury, the Court explained that its standard “requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Id. at 22, 129 S.Ct. 365 (emphasis in original) (rejecting the Ninth Circuit’s “possibility” standard as “too lenient”). The Court provided further guidance in Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), which set forth the standard governing motions for a stay pending appeal. Though a different context, “[t]here is substantial overlap between [the traditional stay factors] and the factors governing preliminary injunctions.” Id. at 434, 129 S.Ct. 1749 (citing Winter, 555 U.S. at 24, 129 S.Ct. 365). This is “not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” Id. The Court
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reiterated that under the “traditional” standard for a stay, the first factor asks “whether the stay applicant has made a strong showing that he is likely to succeed on the merits.” Id. at 425–26, 129 S.Ct. 1749 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). For that showing, the Court made clear, “[i]t is not enough that the chance of success on the merits be ‘better than negligible,’ ” quoting with disapproval this court’s decision in Sofinet v. INS, 188 F.3d 703, 707 (7th Cir. 1999). Id. at 434, 129 S.Ct. 1749.
We thus reiterate that a plaintiff must demonstrate that “its claim has some likelihood of success on the merits,” see, e.g., Eli Lilly and Co. v. Arla Foods, Inc., 893 F.3d 375, 381 (7th Cir. 2018), not merely a “better than negligible” chance. What amounts to “some” depends on the facts of the case at hand because of our sliding scale approach. See Ty, Inc., 237 F.3d at 895.
Here, in reliance on our prior precedent, the district court recited the incorrect “better than negligible” standard several times. In various instances, though, the district court’s analysis indicates that it, in fact, applied a higher standard. In particular, the district court at times used language that Plaintiffs were “reasonably likely to succeed on their contention,” and the court ultimately concluded that Plaintiffs had “far surpassed” the “better than negligible” standard. Thus, were the recitation of the incorrect standard the district court’s only error, we could not say that the district court abused its discretion in imposing the social distancing requirement. But, when coupling this with the district court’s other errors, we cannot be certain that Plaintiffs’ showing of the likelihood of success on the merits of their claim would have surmounted the appropriate standard. We therefore reverse the portion of the preliminary injunction precluding double celling and group housing at the Jail.
We emphasize that we do not address the merits of whether Plaintiffs have demonstrated that they have suffered a constitutional violation. Indeed, our discussion solely addresses the legal errors the district court committed in the course of its preliminary injunction analysis. We reverse this portion of the preliminary injunction on the basis of these legal errors alone.
B. Remaining Relief In the temporary restraining order, the district court

Mays v. Dart, 974 F.3d 810 (2020)
granted several measures of relief to Plaintiffs, including requirements that the Sheriff implement procedures and policies related to sanitation, testing, and provision of face masks to detainees in quarantine. When the district court issued the preliminary injunction, it did not revisit its analysis on any of these measures. Because the discussion pertaining to these measures resides in the temporary restraining order, we turn there for our analysis.
We affirm the aspects of the preliminary injunction that the district court converted from the temporary restraining order. In that order, the district court made detailed factual findings about the risks of COVID-19, the Sheriff’s existing policies, and the execution of these policies, relying on hearing testimony and affidavits from Plaintiffs’ experts, detainees, and correctional administrators. Importantly, the district court assessed the requested relief considering the totality of the Sheriff’s conduct, rather than reviewing it in isolation. For example, the district court declined Plaintiffs’ request to mandate testing of new detainees since the Sheriff already had in place a policy requiring detainees to quarantine for fourteen days upon their arrival to the Jail.
The district court also carefully considered the Sheriff’s conduct in light of the CDC Guidelines and hewed closely to the Guidelines in its explanation of each measure of relief it ordered. The CDC Guidelines—like other administrative guidance—do not themselves set a constitutional standard. See Bell, 441 U.S. at 543 n.27, 99 S.Ct. 1861 (noting that recommendations of a Department of Justice task force “regarding conditions of confinement for pretrial detainees are not determinative of the requirements of the Constitution”); cf. J.K.J. v. Polk Cty., 960 F.3d 367, 384 (7th Cir. 2020) (en banc) (concluding that the guidelines set by the Prison Rape Elimination Act do not set a constitutional parameter under the more demanding Monell deliberate indifference standard). Indeed, “while the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question.” Bell, 441 U.S. at 543 n.27, 99 S.Ct. 1861. But even if not dispositive, implementation (and proper execution) of guidelines that express an expert agency’s views on best practices are certainly relevant to an objective reasonableness determination. United States v. Brown, 871 F.3d 532, 537 (7th Cir. 2017) (noting that evidence of policy or procedure may be relevant to an objective reasonableness inquiry, even though it does not set the constitutional standard). This is particularly true here, where the CDC Guidelines provide the authoritative
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source of guidance on prevention and safety mechanisms for a novel coronavirus in a historic global pandemic where the public health standards are emerging and changing.
The CDC Guidelines differ in material ways from the police department regulations at issue in our decision in Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006). In Thompson, we determined that a policy on the use of force established by the police department did not dictate the constitutional standard for the use of force. Id. at 454; see Brown, 871 F.3d at 537 (clarifying the holding of Thompson). But the CDC Guidelines, arising from an expert, independent agency, are entitled to greater weight than a police department’s internally-crafted regulations. See Brown, 871 F.3d at 537 (“[I]f compliance with departmental policy were the applicable legal standard, the police department itself would become the arbiter of Fourth Amendment reasonableness—a prospect that would have horrified those responsible for the Amendment’s ratification.”). The district court thus properly relied on these Guidelines in the course of its preliminary injunction analysis.
We note that, as it did with its discussion of Plaintiffs’ request for an order precluding double celling and group housing arrangements, the district court made only a passing reference to the Sheriff’s interest in managing Jail facilities and its obligation to defer to policies and practices necessary to preserve order and security. Likewise, the court did not meaningfully discuss this deference in its analysis. We are less troubled, though, given the nature of the relief ordered. Whereas safety and security concerns are fundamental to housing assignments, this is not true to the same degree for measures pertaining to sanitation, testing, and providing facemasks. We therefore do not find legal error.
Lastly, we address a motion by the Sheriff to supplement the record with a CDC report—entitled “Outbreak of COVID-19 and Interventions in One of the Largest Jails in the United States—Cook County, IL, 2020”—and, alternatively, the Sheriff’s request that this Court take judicial notice of it. We deny the motion to supplement the record as the district court has yet to consider this document in the first instance. See Tonyan v. Dunham’s Athleisure Corp., 966 F.3d 681, 684 n.1 (7th Cir. 2020). We similarly decline to take judicial notice. “The Federal Rules of Evidence permit a court to take judicial notice of a fact that is ‘not subject to reasonable dispute’ because it is ‘generally known’ or ‘can be accurately and readily determined from sources whose accuracy cannot

Mays v. Dart, 974 F.3d 810 (2020)

reasonably be questioned.’ ” United States v. De La Torre, 940 F.3d 938, 952 (7th Cir. 2019) (quoting Fed. R. Evid. 201(b)). The contents of this report—the Sheriff’s COVID-19 interventions and their purported impact—are not “ ‘generally known,’ at least to us.” Id. Further, we cannot determine if the sources can reasonably be questioned because the parties dispute who authored the report and the district court has not had the opportunity to make any factual findings on the author. Nor are the contents “incontrovertible,” as its authors “were not subject to Daubert challenges, cross-examined, or tested with competing expert testimony.” Id. The contents of the report are thus “arguably subject to reasonable dispute,” and therefore are not a proper subject of judicial notice.

III. Conclusion
We commend Judge Kennelly for his handling of the motion, particularly in light of the many novel issues posed by the onset of COVID-19 and the case’s emergent nature. We nevertheless REVERSE in part and VACATE the portion of the preliminary injunction precluding double celling and group housing because of the legal errors that arose as the district court applied the objective reasonableness standard recently announced in Kingsley. We AFFIRM the remainder of the preliminary injunction ruling.
All Citations
974 F.3d 810

Footnotes

1

Both the Sixth Circuit and the Eleventh Circuit have recently addressed conditions of confinement claims involving

the coronavirus in prison settings. See Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), in Swain v. Junior, 961 F.3d

1276 (11th Cir. 2020). These Circuits, however, apply an Eighth Amendment deliberate indifference standard to

pretrial detainee conditions of confinement claims rather than the objectively unreasonable claim that we apply,

and thus focus on a subjective element that is not at issue here.

10