United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:20-cv-02093

Richard et al. v. Pritzker et al. Assigned to: Honorable Steven C. Seeger Cause: 42:1983 Prisoner Civil Rights

Date Filed: 04/02/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
James Money TERMINATED: 05/20/2020

represented by Sheila A Bedi Roderick Macarthur Justice Center 375 E. Chicago Avenue Chicago, IL 60611 (312) 503-2492 Email: sheila.bedi@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanessa Del Valle Roderick And Solange Macarthur Justice Center Northwestern University School Of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932 Email: vanessa.delvalle@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan S. Mills Uptown People's Law Center 4413 North Sheridan Chicago, IL 60646 (773) 769-1411 Email: alan@uplcchicago.org ATTORNEY TO BE NOTICED

Amanda C Antholt Equip For Equality

20 N. Michigan Avenue Suite 300 Chicago, IL 60602 (312) -895-7330 Email: amanda@equipforequality.org ATTORNEY TO BE NOTICED
Carolyn E. Shapiro 565 W. Adams Chicago, IL 60661 (773) 520-7533 Email: cshapiro1@kentlaw.iit.edu ATTORNEY TO BE NOTICED
Elizabeth N. Mazur HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 W. Madison, Suite 4000 Chicago, IL 60602 312.604.2726 Email: emazur@hsplegal.com TERMINATED: 06/15/2020
Jennifer Soble Illinois Prison Project Suite 1056 53 W. Jackson Suite 660 Chicago, IL 60604 312-324-4463 Email: jennifer@illinoisprisonproject.org ATTORNEY TO BE NOTICED
Nicole Rae Schult Uptown People's Law Center 4413 N Sheridan Chicago, IL 60640 (773) 769-1411 Email: nicole@uplcchicago.org ATTORNEY TO BE NOTICED
Samantha Reed Equip For Equality 20 N. Michigan Ave Suite 300

Plaintiff William Richard

Chicago, IL 60602 (312) 895-7307 Email: samantha@equipforequality.org TERMINATED: 08/11/2020
Sarah Copeland Grady Loevy & Loevy 311 N. Aberdeen Street 3rd Floor Chicago, IL 60607 (312) 243-5900 Email: sarah@loevy.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
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Carolyn E. Shapiro (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur

Plaintiff Gerald Reed

(See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Carolyn E. Shapiro (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Amber Watters TERMINATED: 05/20/2020

Elizabeth N. Mazur (See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Carolyn E. Shapiro (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tewkunzi Green

Elizabeth N. Mazur (See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Carolyn E. Shapiro (See above for address)

Plaintiff Danny Labosette

ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Carolyn E. Shapiro

Plaintiff
Carl Reed TERMINATED: 05/20/2020

(See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Carl "Tay Tay" Tate

Carolyn E. Shapiro (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Patrice Daniels TERMINATED: 05/20/2020

Carolyn E. Shapiro (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address)

Plaintiff
Anthony Rodesky on behalf of themselves and all similarly situated individuals TERMINATED: 05/20/2020

ATTORNEY TO BE NOTICED
Carolyn E. Shapiro (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt

Plaintiff Adrian Torres
Plaintiff Anthony Buchanan
Plaintiff Lori Thompson

(See above for address) ATTORNEY TO BE NOTICED
Carolyn E. Shapiro (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/15/2020
Jennifer Soble (See above for address) ATTORNEY TO BE NOTICED
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
Stephen H. Weil (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Willie Holloway
Plaintiff Andrew Hines
Plaintiff Lucious Rogers
Plaintiff Kimberly Dunteman
Plaintiff Shardon Gay
Plaintiff Lynwood Ellis
Plaintiff Carlton White
Plaintiff Antwan Freeman
Plaintiff

represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED

Brittany Hall
Plaintiff Eric Valdez
Plaintiff Adam Grunin
Plaintiff Kimberly Carter
Plaintiff Danny Wicker
Plaintiff Tim Walton

represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa Del Valle (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
J.B. Pritzker n his official capacity as Governor of the State of Illinois

represented by Nicholas Scott Staley Office Of The Illinois Attorney General 100 West Randolph Street 13th Floor Chicago, IL 60601 (312) 814-3953 Email: nstaley@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Douglas Rees

Defendant Rob Jeffreys in his official capacities as Director of the Department of Corrections
Intervenor Jennifer Bishop-Jenkins

Office of the Illinois Attorney General 100 W. Randolph Street 12th Floor Chicago, IL 60601 (312) 814-3498 Email: drees@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen Marie Shannon Office of the Illinois Attorney General 100 West Randolph Street 13th Floor Chicago, IL 60601 (312) 814-4451 Email: cshannon@atg.state.il.us ATTORNEY TO BE NOTICED
represented by Nicholas Scott Staley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Douglas Rees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen Marie Shannon (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Bishop-Jenkins 315 Lockwood Avenue Northfield, IL 60093 847-446-7073 PRO SE
Matthew John McQuaid 120 N.LaSalle, 2000 Chicago, IL 60602 (312) 763-6289 Email: matt@mcquaidlawgroup.com

Intervenor
Malik Jones TERMINATED: 12/08/2020

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Malik Jones PRO SE

Date Filed 04/02/2020 04/02/2020
04/02/2020 04/02/2020 04/02/2020 04/02/2020

# Docket Text

COMPLAINT filed by Danny Labosette, Gerald Reed, Carl Reed,

1

Patrice Daniels, William Richard, Carl "Tay Tay" Tate, Amber

Watters, James Money, Anthony Rodesky, Tewkunzi Green; Filing

fee $ 400, receipt number 0752-16904711. (Attachments: # 1 Civil

Cover Sheet)(Del Valle, Vanessa) (Entered: 04/02/2020)

2 EXHIBIT by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber

Watters regarding complaint, 1 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Del Valle, Vanessa) (Entered: 04/02/2020)

CASE ASSIGNED to the Honorable Steven C. Seeger. Designated as Magistrate Judge the Honorable Jeffrey T. Gilbert. Case assignment: Random assignment. (ec, ) (Entered: 04/02/2020)

3 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Sarah Copeland Grady (Grady, Sarah) (Entered: 04/02/2020)

4 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Jennifer Soble (Soble, Jennifer) (Entered: 04/02/2020)

5 MOTION by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters for leave to file excess pages in support of their requests for an emergency temporary restraining order and for class certification (Grady, Sarah) (Entered: 04/02/2020)

04/02/2020

6 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Sheila A Bedi (Bedi, Sheila) (Entered: 04/02/2020)

04/02/2020

7 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Vanessa Del Valle (Del Valle, Vanessa) (Entered: 04/02/2020)

04/02/2020

8 MOTION by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters to certify class Responses due by 4/20/2020 (Attachments: # 1 Exhibit)(Bedi, Sheila) (Entered: 04/02/2020)

04/02/2020 9

MOTION by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters for temporary restraining order , MOTION by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters for preliminary injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Grady, Sarah) (Entered: 04/02/2020)

04/02/2020

10 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Amanda C Antholt (Antholt, Amanda) (Entered: 04/02/2020)

04/02/2020

11 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Samantha Reed (Reed, Samantha) (Entered: 04/02/2020)

04/02/2020 12

MOTION by Plaintiff James Money to expedite hearing on motion for TRO and/or preliminary injunction (Reed, Samantha) (Entered: 04/02/2020)

04/02/2020

13 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed,

04/02/2020

William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Elizabeth N. Mazur (Mazur, Elizabeth) (Entered: 04/02/2020)
14 MINUTE entry: This order is entered by Judge Dow as the designated emergency judge and will also be entered on the regular docket in (1) Money, et al. v. Pritzker, et al., No. 20cv2093, assigned to Judge Seeger, and (2) Money, et al. v. Jeffreys, et al., No. 20cv2094, assigned to Judge Kness, and pertains only to the emergency motions filed on the docket in the special docket, In re: Emergency Motions During Coronavirus COVID-19 Public Emergency, No. 20cv1792. All other motions will be handled by the assigned judges in due course. Plaintiffs' emergency motion for TRO or preliminary injunction in Case No. 20cv2093 91 is taken under advisement. Plaintiffs' request for expedited treatment in Case No. 20cv2093 92 and Petitioners' request for expedited treatment in Case No. 20cv2094 93 are granted. Expedited briefing is ordered as follows: Defendants' brief is due on 4/6/2020 by 5pm; Plaintiffs' reply is due on 4/8/2020 by 5pm. In their response brief, Defendants may address any issues they would like relating to the requests for relief under Section 1983 and habeas, but are requested to give special attention to explaining exactly what measures, if any, are currently being taken in Illinois "to protect people in prisons from the impending spread of COVID-19 by releasing people in an effort to reduce populations" [See 91, at 33; see also id. at 33-39 (describing efforts by state and county governments to reduce prison population, particularly for those who are more vulnerable, close to completing their sentences and/or whose release is deemed to be less dangerous to the community)]. In their reply, Plaintiffs may address any issues they would like, but are requested to give special attention to the citation of any authority or precedent for a federal court order directing state officials to release large numbers of incarcerated individuals. [See 91, at 59-60 (citing Thaker, et al. v. Doll, et al., No. 20 C 0480, Dkt. 47 (M.D. Pa. Mar. 31, 2020), and indicating that in that case the court "granted a temporary restraining order requiring the immediate release of 11 prisoners in federal custody who suffer from chronic medical conditions and face a serious threat of injury or death if exposed to COVID-19")]. After reviewing the briefs, the Court will either issue a ruling by mail or set the matter for telephonic hearing. If a telephonic hearing will be held, it likely would take place on 4/10/2020 at 10:00 a.m. and the Court would provide the call-in information. All additional filings on this motion must be made in the emergency docket, No. 20-cv-1792, and in the underlying dockets as well. Mailed notice (cdh, ) (Entered: 04/02/2020)

04/02/2020 04/02/2020 04/03/2020
04/03/2020
04/03/2020 04/03/2020

15 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Nicole Rae Schult (Schult, Nicole) (Entered: 04/02/2020)
16 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Alan S. Mills (Mills, Alan) (Entered: 04/02/2020)
17 NOTICE TO THE PARTIES - The Court is participating in the Mandatory Initial Discovery Pilot (MIDP). The key features and deadlines are set forth in this Notice which includes a link to the (MIDP) Standing Order and a Checklist for use by the parties. In cases subject to the pilot, all parties must respond to the mandatory initial discovery requests set forth in the Standing Order before initiating any further discovery in this case. Please note: The discovery obligations in the Standing Order supersede the disclosures required by Rule 26(a)(1). Any party seeking affirmative relief must serve a copy of the following documents (Notice of Mandatory Initial Discovery and the Standing Order) on each new party when the Complaint, Counterclaim, Crossclaim, or Third-Party Complaint is served. (pk, ) (Entered: 04/03/2020)
18 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon further review of the materials filed to date in Case Nos. 20-cv2093 and 20-cv-2094, it appears that in their request for immediate relief, Plaintiffs ask the Court to "preliminarily certify Plaintiffs' proposed subclasses 1 and 2, and order Defendants to transfer [certain] individuals to their homes to self-isolate via a temporary medical furlough." [91, at 70-71.] The Court draws to counsel's attention the provisions of the Prison Litigation Reform Act, which (among other things) restrict the circumstances in which a court may enter an order "that has the purpose or effect of reducing or limiting the prison population." 18 U.S.C. § 3626(g)(4); see also Brown v. Plata, 563 U.S. 493 (2011). The Court requests that in their briefs the parties give careful attention to whether the PLRA applies to these cases.Mailed notice (cdh, ) (Entered: 04/03/2020)
19 ATTORNEY Appearance for Defendants Rob Jeffreys, J.B. Pritzker by R. Douglas Rees (Rees, R.) (Entered: 04/03/2020)
20 ATTORNEY Appearance for Defendants Rob Jeffreys, J.B. Pritzker by Nicholas Scott Staley (Staley, Nicholas) (Entered: 04/03/2020)

04/03/2020

21 ATTORNEY Appearance for Defendants Rob Jeffreys, J.B. Pritzker by Colleen Marie Shannon (Shannon, Colleen) (Entered: 04/03/2020)

04/03/2020

30 MOTION by Intervenor Jennifer Bishop-Jenkins to intervene individually and on behalf of a class of similarly situated victims of violent crimes. (pk, ) (Entered: 04/09/2020)

04/03/2020

31 MEMORANDUM of law in support of defendant-intervenor by Jennifer Bishop-Jenkins motion by Intervenor Jennifer BishopJenkins to intervene individually and on behalf of a class of similarly situated victims of violent crimes.(pk, ) (Entered: 04/09/2020)

04/04/2020

22 MINUTE entry before the Honorable Robert M. Dow, Jr: This matter is before Judge Dow as emergency judge. Consistent with the order entered by Judge Kennelly in Case No. 20-cv-2134, the Court enters the following supplemental briefing order in Case Nos. 20-cv-2093 & 20-cv-2094: 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 each lawsuit and, in particular, to the relief they are requesting in the TRO/PI motion. Mailed notice (cdh, ) (Entered: 04/04/2020)

04/04/2020

23 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Stephen H. Weil (Weil, Stephen) (Entered: 04/04/2020)

04/06/2020 24

SUPPLEMENT to motion for temporary restraining order,,, motion
for preliminary injunction,, 9 Submission Regarding Applicability and Effect of 18 U.S.C. 3626 (Attachments: # 1

Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Mazur, Elizabeth) (Entered: 04/06/2020)

04/06/2020

25 MOTION by Defendants Rob Jeffreys, J.B. Pritzker for leave to file excess pages (Staley, Nicholas) (Entered: 04/06/2020)

04/06/2020 26

RESPONSE by Rob Jeffreys, J.B. Pritzkerin Opposition to MOTION by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters for temporary restraining order MOTION by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay

Tay" Tate, Amber Watters for preliminary injunction 9 R.) (Entered: 04/06/2020)

(Rees,

04/06/2020

27 MINUTE entry before the Honorable Robert M. Dow, Jr: Unopposed motion for leave to file excess pages [25 in Docket No. 20-cv-2093] is granted. Plaintiffs are also given leave to file an oversized reply brief on 4/8/2020. Mailed notice (cdh, ) (Entered: 04/06/2020)

04/08/2020 28

REPLY by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters to motion for temporary restraining order,,, motion for preliminary

injunction,, 9 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Mazur, Elizabeth) (Entered: 04/08/2020)

04/09/2020

29 MINUTE entry before the Honorable Robert M. Dow, Jr: This minute entry is issued by Judge Dow as designated emergency judge in Case Nos. 20-cv-2093 and 20-cv-2094. In view of the comprehensive briefs and supporting materials and the need for expedited ruling, the Court has determined that a telephonic hearing will not be necessary and will issue a written ruling as soon as possible. The Court appreciates the extraordinary effort of counsel to provide high quality briefs on a highly compressed schedule. The Court notes Plaintiffs' offer to call as witnesses the individuals who submitted the declarations attached to the reply brief. [See docket entry 28 in Case No. 20-cv-2093, at 45.]. That will not be necessary, as the Court will accept as true for purposes of this hearing their representations in the declarations. Nor will it be necessary to make arrangements for the named Plaintiffs/Petitioners to either appear by phone or file their own declarations, as the Court also will accept as true for present purposes the accuracy of counsels' representations about the medical conditions of the named Plaintiffs/Petitioners. In order to ensure that the Court has accurate information on an admittedly moving target, the Court directs counsel for Defendants to submit by 5:00 pm today and by 2:00 p.m. on each subsequent day until a ruling is issued an update on (1) how many inmates have been released through each available vehicle and the total reduction in IDOC population since March 2 [see docket entry 26 in Case No. 20-cv-2093, at 3-4 and docket entry 28 in Case No. 20-cv-2093, at 7 & n.1] and (2) how many incarcerated individuals have confirmed cases of COVID-19 at (a) each institution where the named Plaintiffs are housed and (b)

across the entire IDOC system. If the Court is unable to issue a decision by the close of business tomorrow, it does have the capability to issue a decision on the docket electronically over the weekend and will do so. Mailed notice (cdh, ) (Entered: 04/09/2020)

04/09/2020

32 MOTION by Defendants Rob Jeffreys, J.B. Pritzker for leave to file Sur-Reply Instanter (Shannon, Colleen) (Entered: 04/09/2020)

04/09/2020

33 Defendants' Report on IDOC Releases, Population Reduction, and COVID-19 Cases by Rob Jeffreys, J.B. Pritzker (Shannon, Colleen) (Entered: 04/09/2020)

04/09/2020

34 SUR-REPLY by Defendants Rob Jeffreys, J.B. Pritzker in Opposition to Modified Request for Emergency Relief (Attachments: # 1 Exhibit Robinson Declaration, # 2 Exhibit Legislators' letter, # 3 Exhibit Sweat Declaration)(Rees, R.) (Entered: 04/09/2020)

04/10/2020

35 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Carolyn E. Shapiro (Shapiro, Carolyn) (Linked document has incorrect case number - Docket Text Modified by Clerk's Office) Modified on 4/13/2020 (pk, ). (Entered: 04/10/2020)

04/10/2020

36 Defendants' Report on IDOC Releases, Population Reduction, and COVID-19 Cases by Rob Jeffreys, J.B. Pritzker (Shannon, Colleen) (Entered: 04/10/2020)

04/10/2020

37 MINUTE entry before the Honorable Steven C. Seeger: Defendants' Motion for Leave to File Sur-Reply Instanter (Dckt. No. 32 ) is granted. Mailed notice. (jjr, ) (Entered: 04/10/2020)

04/10/2020 38

MEMORANDUM OPINION AND ORDER signed by the Honorable Robert M. Dow, Jr., as emergency judge, on 4/10/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, Plaintiffs' motion for temporary restraining order and preliminary injunction in Money v. Pritzker, Case No. 20-cv-2093 9

is denied. Plaintiffs' motions for leave to file oversized

brief 5 and for expedited treatment 12 in that same case are granted. Defendants' motion for leave to file sur-reply in that case 32 is granted. Petitioners' motion for expedited treatment in Money v. Jeffreys, Case No. 20-cv-2094 3 is granted, but the Court denies Petitioners' request for expedited release. The petition 1

04/15/2020
04/16/2020 04/24/2020
04/27/2020 04/27/2020 04/29/2020 04/29/2020

remains open on the docket, subject to further action by the parties and the judges, both assigned and emergency, as explained in the Memorandum Opinion and Order. No further status hearings will be set at this time by the emergency judge. Mailed notice(cdh, ) (Entered: 04/10/2020)
39 ORDER Second Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20-0012, entered on March 17, 2020, and General Order 20-0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order for guidance. Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020. Mailed notice.(jjr, ) (Entered: 04/15/2020)
40 ATTORNEY Appearance for Intervenor Jennifer Bishop-Jenkins by Matthew John McQuaid (McQuaid, Matthew) (Entered: 04/16/2020)
43 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 Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket9, ) (Entered: 04/27/2020)
41 WAIVER OF SERVICE returned executed by James Money. Rob Jeffreys waiver sent on 4/2/2020, answer due 6/1/2020. (Grady, Sarah) (Entered: 04/27/2020)
42 WAIVER OF SERVICE returned executed by James Money. J.B. Pritzker waiver sent on 4/2/2020, answer due 6/1/2020. (Grady, Sarah) (Entered: 04/27/2020)
44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Rob Jeffreys, J.B. Pritzker (Staley, Nicholas) (Entered: 04/29/2020)
45 MEMORANDUM by Rob Jeffreys, J.B. Pritzker in support of Motion to Dismiss for Failure to State a Claim 44 (Staley, Nicholas) (Entered: 04/29/2020)

04/29/2020

46 MOTION by Defendants Rob Jeffreys, J.B. Pritzker for leave to file excess pages (Staley, Nicholas) (Entered: 04/29/2020)

05/01/2020

47 MINUTE entry before the Honorable Steven C. Seeger: Plaintiffs' response to the motion to dismiss (Dckt. No. 44 ) is due on May 29, 2020. The reply brief is due on June 12, 2020. Defendants' motion for excess pages (Dckt. No. 46 ) is granted. This Court grants Plaintiffs leave to file a response brief of up to 35 pages. Mailed notice. (jjr, ) (Entered: 05/01/2020)

05/20/2020 48

FIRST AMENDED complaint by William Richard, Danny Labosette, Gerald Reed, Carl "Tay Tay" Tate, Tewkunzi Green, Adrian Torres, Anthony Buchanan, Lori Thompson, Willie Holloway, Andrew Hines, Lucious Rogers, Kimberly Dunteman, Shardon Gay, Lynwood Ellis, Carlton White, Antwan Freeman, Brittany Hall, Eric Valdez, Adam Grunin, Kimberly Carter, Danny Wicker, Tim Walton against All Defendants and terminating Carl Reed, Anthony Rodesky (on behalf of themselves and all similarly situated individuals), Amber Watters, Patrice Daniels and James Money (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Del Valle, Vanessa) (Entered: 05/20/2020)

05/21/2020

49 MINUTE entry before the Honorable Steven C. Seeger: In light of

the filing of the First Amended Complaint (Dckt. No. 48 ), the motion to dismiss (Dckt. No. 44 ) is denied as moot. Mailed notice. (jjr, ) (Entered: 05/21/2020)

05/26/2020

50 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)

06/02/2020

51 MOTION by Defendants Rob Jeffreys, J.B. Pritzker for extension of time to file answer regarding amended complaint,, 48

(unopposed) (Rees, R.) (Entered: 06/02/2020)

06/03/2020

52 MINUTE entry before the Honorable Steven C. Seeger: Defendants' Unopposed Motion to Extend Time to Answer or Otherwise Respond to Amended Complaint (Dckt. No. 51 ) is hereby granted. Defendants shall answer or otherwise respond to the amended

06/15/2020
06/15/2020 06/22/2020 06/24/2020

complaint by June 24, 2020. Mailed notice. (jjr, ) (Entered: 06/03/2020)
53 MOTION by Attorney Elizabeth Mazur to withdraw as attorney for Anthony Buchanan, Kimberly Carter, Kimberly Dunteman, Lynwood Ellis, Antwan Freeman, Shardon Gay, Tewkunzi Green, Adam Grunin, Brittany Hall, Andrew Hines, Willie Holloway, Danny Labosette, Gerald Reed, William Richard, Lucious Rogers, Carl "Tay Tay" Tate, Lori Thompson, Adrian Torres, Eric Valdez, Tim Walton, Carlton White, Danny Wicker. No party information provided (Mazur, Elizabeth) (Entered: 06/15/2020)
54 MINUTE entry before the Honorable Steven C. Seeger: The Court grants the Motion for Leave to Withdraw Appearance of Counsel. (Dckt. No. 53 ) Attorney Elizabeth N. Mazur is terminated as counsel of record. Mailed notice. (jjr, ) (Entered: 06/15/2020)
55 STATUS Report Joint Status Report by Anthony Buchanan, Kimberly Carter, Kimberly Dunteman, Lynwood Ellis, Antwan Freeman, Shardon Gay, Tewkunzi Green, Adam Grunin, Brittany Hall, Andrew Hines, Willie Holloway, Danny Labosette, Gerald Reed, William Richard, Lucious Rogers, Carl "Tay Tay" Tate, Lori Thompson, Adrian Torres, Eric Valdez, Tim Walton, Carlton White, Danny Wicker (Bedi, Sheila) (Entered: 06/22/2020)
56 MINUTE entry before the Honorable Steven C. Seeger: The Court reviewed the Joint Status Report and Motion to Set Dates (Dckt. No. 55 ). The parties reported that they are engaging in settlement negotiations, and that they want more time to continue those discussions. The Court adopts the proposed schedule. As requested, the Court grants Defendants until July 17, 2020 to answer or otherwise respond to the amended complaint. Plaintiffs reported that they may seek leave to file a second amended complaint (but they have not made that request yet). Rule 15 requires leave of court to file a second amended complaint. See Fed. R. Civ. P. 15(a)(1). The Court sua sponte grants Plaintiffs leave to file a second amended complaint by July 31, 2020. If Plaintiffs decide to file a second amended complaint in the coming weeks, they must promptly notify defense counsel to avoid potentially unnecessary work in responding to the first amended complaint. If a second amended complaint is in the pipeline, Plaintiffs must notify the Court so that it can vacate the current deadline for the answer or motion to dismiss. In the meantime, the Court encourages the parties to continue to engage in productive settlement negotiations. Mailed notice. (jjr, ) (Entered: 06/24/2020)

07/07/2020 07/07/2020 07/08/2020 07/08/2020 07/08/2020
07/09/2020 07/10/2020
07/13/2020

57 MOTION for emergency relief filed by Intervener Ramiro Alcantar. (lma, ) (Entered: 07/07/2020)
58 MOTION by Defendants Rob Jeffreys, J.B. Pritzker for protective order AGREED (Attachments: # 1 Exhibit A)(Staley, Nicholas) (Entered: 07/07/2020)
59 MINUTE entry before the Honorable Steven C. Seeger: The Court grants the Agreed Motion for Entry of a HIPAA Qualified Protective Order. (Dckt. No. 58 ) Order to follow. Mailed notice. (jjr, ) (Entered: 07/08/2020)
60 HIPAA QUALIFIED PROTECTIVE ORDER Signed by the Honorable Steven C. Seeger on 7/8/2020. Mailed notice. (jjr, ) (Entered: 07/08/2020)
61 MINUTE entry before the Honorable Steven C. Seeger: Ramiro Alcantar, a pro se inmate, filed a motion for emergency relief (Dckt. No. 57 ), and referred to himself as an "intervener." That description is not accurate. The Court has not granted Alcantar leave to intervene. Alcantar seeks release from custody due to the coronavirus pandemic. To the extent that Alcantar is a member of the putative class, his interests are covered by the named representatives of the putative class. Alcantar is also free to file his own action. The motion for emergency relief is denied. Mailed notice. (jjr, ) (Entered: 07/08/2020)
62 MOTION by Defendants Rob Jeffreys, J.B. Pritzker for protective order AGREED (Staley, Nicholas) (Entered: 07/09/2020)
63 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)
64 MINUTE entry before the Honorable Steven C. Seeger: The Agreed Motion for Entry of an Agreed Confidentiality Order (Dckt. No. 62 ) is granted. Order to follow. Mailed notice. (jjr, ) (Entered: 07/13/2020)

07/13/2020 07/13/2020 07/18/2020 07/27/2020
08/07/2020
08/11/2020 09/01/2020 09/02/2020

65 AGREED CONFIDENTIALITY ORDER Signed by the Honorable Steven C. Seeger on 7/13/2020. Mailed notice. (jjr, ) (Entered: 07/13/2020)
66 LETTER from Jason Rumsey dated 7/1/2020. (Exhibit) (mc, ) (Entered: 07/14/2020)
67 MOTION by Defendants Rob Jeffreys, J.B. Pritzker to amend/correct (joint motion to amend schedule) (Rees, R.) (Entered: 07/18/2020)
68 MINUTE entry before the Honorable Steven C. Seeger: The Joint Motion to Amend Scheduling Order (Dckt. No. 67 ) is hereby granted. The parties are continuing to engage in productive settlement negotiations, and requested more time before filing additional pleadings. As requested, Plaintiffs shall inform Defendants by August 21, 2020 if they intend to file a second amended complaint. If Plaintiffs opt to stand on their current complaint, Defendants shall answer or otherwise respond by August 28, 2020. If Plaintiffs file a second amended complaint, the parties shall submit a proposed schedule within seven days. The Court extends the deadline to file a second amended complaint to August 31, 2020. Mailed notice. (jjr, ) (Entered: 07/27/2020)
69 MOTION by Attorney Samantha Reed to withdraw as attorney for Jennifer Bishop-Jenkins, Anthony Buchanan, Kimberly Carter, Patrice Daniels, Kimberly Dunteman, Lynwood Ellis, Antwan Freeman, Shardon Gay, Tewkunzi Green, Adam Grunin, Brittany Hall, Andrew Hines, Willie Holloway, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Lucious Rogers, Carl "Tay Tay" Tate, Lori Thompson, Adrian Torres, Eric Valdez, Tim Walton, Amber Watters, Carlton White, Danny Wicker. No party information provided (Reed, Samantha) (Entered: 08/07/2020)
70 MINUTE entry before the Honorable Steven C. Seeger: The Court grants the Motion for Leave to Withdraw Appearance of Counsel. (Dckt. No. 69 ) Attorney Samantha Reed is terminated as counsel of record. Mailed notice. (jjr, ) (Entered: 08/11/2020)
71 MOTION by Defendants Rob Jeffreys, J.B. Pritzker to amend/correct scheduling order (joint motion) (Rees, R.) (Entered: 09/01/2020)
72 MINUTE entry before the Honorable Steven C. Seeger: The Joint Motion to Amend Scheduling Order (Dckt. No. 71 ) is hereby granted. The Court adopts the proposed schedule. By September 25,

09/29/2020 09/30/2020
10/30/2020 11/02/2020
11/04/2020 11/09/2020

2020, Plaintiffs shall inform Defendants whether they will file a second amended complaint. If Plaintiffs opt to stand on the first amended complaint, Defendants must file an answer or motion to dismiss by October 2, 2020. If Plaintiffs elect to file a second amended complaint, the parties shall submit a proposed briefing schedule (if Defendants anticipate filing a motion to dismiss) within seven days of the filing of a second amended complaint. The Court extends the deadline to file a second amended complaint to September 30, 2020. Mailed notice. (jjr, ) (Entered: 09/02/2020)
73 MOTION by Defendants Rob Jeffreys, J.B. Pritzker to amend/correct scheduling order [agreed] (Rees, R.) (Entered: 09/29/2020)
74 MINUTE entry before the Honorable Steven C. Seeger: The Joint Motion to Amend Scheduling Order (Dckt. No. 73 ) is hereby granted. The parties are continuing "productive" settlement negotiations. The Court adopts the proposed schedule. By October 28, 2020, Plaintiffs must inform Defendants if they will file a second amended complaint. If Plaintiffs opt to stand on the first amended complaint, Defendants must respond by November 6, 2020. If Plaintiffs file a second amended complaint, then the parties must submit a proposed schedule within seven days. The Court extends the deadline to file a second amended complaint to October 30, 2020. Mailed notice. (jjr, ) (Entered: 09/30/2020)
75 MOTION by Defendants Rob Jeffreys, J.B. Pritzker to amend/correct Scheduling Order (JOINT) (Staley, Nicholas) (Entered: 10/30/2020)
76 MINUTE entry before the Honorable Steven C. Seeger: The joint motion to amend scheduling order (Dckt. No. 75 ) is hereby granted. Once again, the parties reported that they are having productive settlement discussions. The Court adopts the proposed schedule. By November 27, 2020, Plaintiffs must inform Defendants if they intend to file a second amended complaint. If not, then Defendants must respond to the first amended complaint by December 4, 2020. If so, then the parties must propose a schedule within seven days. The Court extends the deadline to file a second amended complaint to November 30, 2020. Mailed notice. (jjr, ) (Entered: 11/02/2020)
77 MOTION for stadus by Barry Johnson. (Exhibits) (ph, ) (Entered: 11/05/2020)
78 MINUTE entry before the Honorable Steven C. Seeger: The Court reviewed a handwritten "motion for status" filed by Barry Johnson,

11/09/2020 11/12/2020
11/18/2020 11/25/2020 12/08/2020

who is not a named party. He seems to request a civil cover sheet, and the accompanying form cites this case number and requests a status. The Court refers Johnson to the docket entry dated October 20, 2020, which explained that the parties are continuing to discuss settlement. The motion for status (Dckt. No. 77 ) is otherwise denied. Mailed notice. (jjr, ) (Entered: 11/09/2020)
79 MOTION by Plaintiff William Richard to intervene. (rc, ) (Entered: 11/09/2020)
80 MINUTE entry before the Honorable Steven C. Seeger: The motion to intervene filed by pro se litigant Jose Horta (Dckt. No. 79 ) is hereby denied. Horta is incarcerated by the IDOC at the Pontiac prison, and he alleges that he is at risk because of the pandemic. He seeks to intervene "as a putative class member." But the named plaintiffs brought claims on behalf of a putative class of IDOC inmates, so Horta's interests are already represented even if none of the named plaintiffs are incarcerated in Pontiac. Horta also seems to seek a reprieve, commutation, or pardon from Governor Pritzker. That decision rests with the Governor, not this Court. Mailed notice. (jjr, ) (Entered: 11/12/2020)
81 LETTER from Joe L. Jones dated 11/5/2020. (Envelope postmarked 11/6/2020) (ph, ) (Entered: 11/23/2020)
82 MOTION by Intervenor Malik Jones to intervene. (ph, ) (Entered: 11/25/2020)
83 MINUTE entry before the Honorable Steven C. Seeger: The motions to intervene (Dckt. Nos. 30 , 82 ) are hereby denied without prejudice. Movant Bishop-Jenkins seeks to intervene on behalf of herself and other victims of violent crimes. Bishop-Jenkins filed her motion on an expedited basis shortly after the filing of the case. But eight months have passed since then, as the parties have continued to discuss settlement. There is no imminent need for intervention because settlement discussions are ongoing. So the motion for intervention is denied in the meantime. If and when Bishop-Jenkins believes that the need for intervention has become ripe, she may refile if she so chooses. Movant Jones is incarcerated at a facility run by the IDOC. The named plaintiffs brought claims on behalf of a putative class of IDOC inmates, so Jones's interest are already represented even if none of the named plaintiffs are incarcerated in Pontiac. Jones also seems to seek a reprieve, commutation or pardon from Governor Pritzker. That decision rests with the Governor, not this Court. Mailed notice. (jjr, ) (Entered: 12/08/2020)

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02/09/2021
02/19/2021 02/22/2021

84 MOTION for compassionate release by Abel Colin. (ph, ) (Entered: 02/04/2021)
85 MINUTE entry before the Honorable Steven C. Seeger: For the past few months, the Court has extended the schedule a number of times because the parties were engaged in productive settlement discussions. (Dckt. Nos. 52 , 56 , 68 , 72 , 74 , 76 ) Most recently, on November 2, 2020, the Court directed Plaintiffs to inform Defendants by November 27, 2020 whether they intend to file a second amended complaint. If so, then the second amended complaint was due on November 30, 2020. If not, then Defendants' response to the first amended complaint was due on December 4, 2020. Since then, over two months have passed. But Plaintiffs did not file a second amended complaint, and Defendants did not respond to the first amended complaint. So, the state of affairs seems a bit up in the air. The parties must file a status report, provide an update, and propose a case calendar by February 19, 2021. Mailed notice. (jjr, ) (Entered: 02/09/2021)
86 MINUTE entry before the Honorable Steven C. Seeger: Plaintiffs' motion for class certification (Dckt. No. 8 ) is hereby denied without prejudice. Plaintiffs filed their motion on April 2, 2020, at the outset of the pandemic. Much has changed since then. In the intervening months, the parties have requested time to discuss settlement, and the Court granted those requests and encouraged settlement discussions. But one of the downsides of that approach is that the motion for class certification is now somewhat stale, and rests on a set of facts that is different than the state of the world today. The Court therefore denies the motion without prejudice. The parties presumably are continuing to discuss settlement. If need be, Plaintiffs could refile a motion for class certification at an appropriate time. Mailed notice. (jjr, ) (Entered: 02/09/2021)
87 STATUS Report (Joint) by Rob Jeffreys, J.B. Pritzker (Rees, R.) (Entered: 02/19/2021)
88 MINUTE entry before the Honorable Steven C. Seeger: The motion by Abel Colin for compassionate release (Dckt. No. 84 ) is hereby denied. Abel Colin is not a named party, but he purports to be a member of the not-yet-certified subclass. He is incarcerated by the IDOC in Pontiac. This lawsuit is about the conditions of facilities maintained by the IDOC. But this lawsuit is not a platform for any and all inmates incarcerated by the IDOC to seek compassionate release under 18 U.S.C. § 3582(c). So the motion is not properly before the Court. Mailed notice. (jjr, ) (Entered: 02/22/2021)

02/22/2021

89 MINUTE entry before the Honorable Steven C. Seeger: The Court reviewed the Joint Status Report (Dckt. No. 87 ), which stated that the parties have reached a settlement in principle. The parties expect to finalize their agreement in the next two weeks. As proposed, the parties shall file a status report by March 5, 2021, if they have not filed for dismissal in the meantime. Mailed notice. (jjr, ) (Entered: 02/22/2021)

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 Case: 1:20-cv-02093 Document #: 1 Filed: 04/02/20 Page 1 of 48 PageID #:1

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

JAMES MONEY, WILLIAM RICHARD, GERALD REED, AMBER WATTERS, TEWKUNZI GREEN, DANNY LABOSETTE, CARL REED, CARL “TAY TAY” TATE, PATRICE DANIELS, and ANTHONY RODESKY, on behalf of themselves and all similarly situated individuals,
Plaintiffs,
v.
J.B. PRITZKER, in his official capacity as GOVERNOR OF THE STATE OF ILLINOIS, and ROB JEFFREYS, in his official capacities as DIRECTOR OF THE DEPARTMENT OF CORRECTIONS,
Defendants.

) ) ) ) ) ) ) ) ) Case No. ) (Class Action) ) ) ) ) ) ) ) ) ) )

CLASS ACTION COMPLAINT Plaintiffs James Money, William Richard, Gerald Reed, Amber Watters, Tewkunzi Green, Danny Labosette, Carl Reed, Carl “Tay Tay” Tate, Patrice Daniels, and Anthony Rodesky, individually and on behalf of a class of similarly situated individuals, by their undersigned attorneys, file this Complaint for declaratory and injunctive relief against the Defendants, Governor of the State of Illinois J.B Pritzker and Illinois Department of Corrections Director Rob Jeffreys, and allege as follows:
INTRODUCTION 1. Without urgent action by the Governor and the Illinois Department of Corrections (“IDOC”) to drastically reduce Illinois’s prison population, the novel coronavirus is likely to

1

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spread not just inside the walls of Illinois’s 28 prisons, but throughout prison communities as well. Nearly 37,000 people are incarcerated in Illinois, living in close quarters where all aspects of daily life, including healthcare and food service, take place. As with other congregate settings like nursing homes and long-term care facilities, social distancing guidelines can never be fully or effectively implemented in prison. And each day, thousands of staff must come and go from prison facilities, potentially carrying with them the novel coronavirus for days, even weeks, without ever showing symptoms. These settings pose a particular risk of spreading the virus, with catastrophic consequences not just to the prisoners and staff, but also to their communities and the hospitals that serve them.
2. To understand the devastating impact that COVID-19 will have on the Illinois prison system and the communities that house those prisons, one need look no further than Joliet, Illinois. On March 25, 2020, the IDOC announced the first confirmed case of COVID-19 at Stateville Correctional Center. Just five days later, Dr. Ngozi Ezike announced that twelve prisoners had been hospitalized with confirmed cases of COVID-19, while another 77 prisoners demonstrated symptoms but had not yet been confirmed. That same day, St. Joseph Hospital, where Stateville prisoners had been hospitalized, announced it was “overwhelmed” by inmates suffering from the effects of coronavirus and staff already were “maxed out.” The hospital’s medical director characterized the situation as “a disaster.” The following day, Governor Pritzker confirmed at least one prisoner had died from the virus, while the number of confirmed cases among staff and prisoners continues to grow.
3. Stateville’s reality might have been avoided if the Governor and IDOC had acted with the urgency and scope required to mitigate the oncoming harm. Instead, IDOC has continued to house thousands of elderly, disabled, and medically vulnerable prisoners who
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could be released, many of whom are approaching their release dates and have homes in which they could more safely quarantine. To effectively prevent the continued spread of the COVID19 infection in prison communities, the state must take urgent steps to release, furlough, or transfer to home detention all that qualify under the law, and particularly those who are elderly and medically vulnerable.
4. Every single person in IDOC custody faces a substantially increased risk of harm as a result of the Defendants’ failure take reasonable measures to stop the spread of COVID-19 by refusing to reduce the number of people living in IDOC custody through the implementation of medical furlough, transfer to electronic monitoring/home detention, and other mechanisms to reduce the prison population. Even people who lack an available pathway to release are harmed because their likelihood of contracting the virus is substantially increased and their ability to access preventative sanitation resources and medical care is adversely affected.
5. Class members who are elderly and medically vulnerable, and those with pathways to release, must be released now. Now is the time to act to stop the spread of COVID-19 inside the prisons, and to protect the individuals who live and work in the prisons as well as the broader community from the serious risk of harm to their health and safety. The State is not acting with sufficient urgency, and without intervention from this Court, people are going to die unnecessarily.
JURISDICTION AND VENUE 6. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a). This Court has authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202. 7. 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 judicial district.
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PARTIES 8. Plaintiff James Money is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Illinois River Correctional Center in Canton, Illinois. 9. Plaintiff William Richard is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Dixon Correction Center in Dixon, Illinois. 10. Plaintiff Gerald Reed is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at the Northern Reception Center in Crest Hill, Illinois. 11. Plaintiff Amber Watters is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Logan Correctional Center in Lincoln, Illinois. 12. Plaintiff Tewkunzi Green is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Logan Correctional Center in Lincoln, Illinois. 13. Plaintiff Danny Labosette is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Robinson Correctional Center in Robinson, Illinois. 14. Plaintiff Carl Reed is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Graham Correctional Center in Hillsboro, Illinois.
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15. Plaintiff Carl “Tay Tay” Tate is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Danville Correctional Center in Danville, Illinois.
16. Plaintiff Patrice Daniels is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Joliet Treatment Center in Joliet, Illinois.
17. Plaintiff Anthony Rodesky is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Pontiac Correctional Center in Pontiac, Illinois.
18. Defendant Rob Jeffreys is the Director of the Illinois Department of Corrections (“IDOC”). As such, he was acting under color of law. At all relevant times to the events at issue in this case, Defendant Jeffreys maintained administrative and supervisory authority over the operations of all prisons in Illinois. At all relevant times, Defendant Jeffreys promulgated rules, regulations, policies, and procedures of the IDOC. Defendant Jeffreys is sued in his official capacity.
19. Defendant Governor of Illinois J.B. Pritzker has, pursuant to the Illinois Constitution, Article V, Section 8, “the supreme executive power, and shall be responsible for the faithful executive of the laws.” Governor Pritzker has the ultimate authority for ensuring that all executive agencies, including the Department of Corrections, function in compliance with state and federal law.
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FACTUAL ALLEGATIONS
I. The COVID-19 Outbreak Has Created a National and Global Health Emergency
20. We are living in the midst of an extreme, unprecedented worldwide health
emergency caused by the rapid spread of the coronavirus, COVID-19. The World Health
Organization has declared COVID-19 to be a global pandemic.1 On March 9, 2020, Illinois
Governor J.B. Pritzker issued a proclamation declaring a disaster in the State of Illinois.2 On
March 13, 2020, President Trump declared a national emergency.3
21. The number of known COVID-19 infections is increasing daily. As of April 1,
2020, there were more than 823,000 reported COVID-19 cases throughout the world and more
than 40,500 people had died as a result of the virus.4 In the United States alone, there are over
186,000 confirmed cases and over 3,600 deaths.5 In Illinois, there are over 6,900 confirmed
cases and 141 deaths.6 The number of COVID-19 cases in the United States is expected to grow
exponentially. The Centers for Disease Control and Prevention (“CDC”) projects that without
1 Rolling Updates on Coronavirus Disease (COVID-19), World Health Organization, https://www.who.int/emergencies/diseases/novel-COVID-19-2019/events-as-they-happen (last visited Mar. 29, 2020). 2 Gubernatorial Disaster Proclamation, https://www2.illinois.gov/sites/gov/Documents/APPROVED%20%20Coronavirus%20Disaster%20Proc%20WORD.pdf 3 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID19) Outbreak (Mar. 13, 2020), available at https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19outbreak/ 4 Coronavirus Disease 2019 (COVID-19) Situation Report – 72, World Health Organization (Apr. 1, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200401-sitrep-72-covid19.pdf?sfvrsn=3dd8971b_2 5 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-inus.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcasesin-us.html (last visited Apr. 1, 2020). 6 Coronavirus Disease 2019 (COVID-19), Ill. Dept. of Pub. Health, http://www.dph.illinois.gov/topicsservices/diseases-and-conditions/diseases-a-z-list/coronavirus (last visited Apr. 1, 2020).
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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.7
22. COVID-19 is a particularly contagious disease. A recent study showed that the
virus can survive for up to three hours in the air, four hours on copper, up to twenty-four hours on cardboard, and up to two to three days on plastic and stainless steel.8 Indeed, a new study of
an early cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect
transmission resulting from infected people contaminating common surfaces—in the study, it was a communal mall bathroom.9
23. Controlling the spread of COVID-19 is made even more difficult because of the
prominence of asymptomatic transmission—people who are contagious but who exhibit no
symptoms, rendering ineffective any screening tools dependent on identifying disease symptoms.10
24. There is no known vaccine or cure for COVID-19. No one is immune.
25. Common symptoms of COVID-19 include fever, cough, and shortness of breath.11 Other symptoms include congestion, sneezing, fatigue, or diarrhea.12 Many individuals
who become infected with COVID-19 may have mild or moderate symptoms; some may
7 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. Times, (Mar. 13, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html 8 Novel Coronavirus Can live on Some Surfaces for Up to 3 Days, New Tests Show, TIME https://time.com/5801278/coronavirus-stays-on-surfaces-days-tests/ (last visited Mar. 31, 2020). 9 Jing Cai J, et al., Indirect Virus Transmission in Cluster of COVlD-19 Cases, Wenzhou, China, 2020. Emerg Infect Dis. (2020), available at https://wwwnc.cdc.gov/eid/article/26/6/20-0412_article) 10 Johnny Milano, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times, https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html (last visited Apr. 1, 2020). 11 Coronavirus Disease 2019 (COVID-19), Symptoms of Coronavirus, CDC, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited Mar. 29, 2020). 12 Q&A on Coronaviruses (COVID-19), World Health Organization, https://www.who.int/news-room/qa-detail/q-a-coronaviruses (last visited Mar. 29, 2020).
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experience no symptoms at all. Other patients may experience severe symptoms requiring intensive medical intervention.13 However, even with hospitalization and intensive treatment, thousands of individuals have died as a result of this infection. Regardless of the type of severity of symptoms, all infected persons are contagious and can rapidly transmit the virus from person to person without proper public health interventions.14 The virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.15
26. People over the age of fifty-five face greater chances of serious illness or death from COVID-19. 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 60-69 had a 3.6% mortality rate, and individuals age 50-59 had a 1.3% mortality rate. For individuals age 40-49, the mortality rate was 0.4%, and for individuals 40 years and younger, the mortality rate was as low as 0.2%.16
27. People of any age who suffer from certain underlying medical conditions are also at elevated risk, including 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
13 Id. 14 Coronavirus Disease 2019 (COVID-19): How It Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Ftransmission.html (last visited Mar. 29, 2020). 15 Id. 16 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (date analysis based on WHO-China Joint Mission Report).
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(including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; and people who have had or are at risk of stroke.17 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.18
28. For these vulnerable populations, the symptoms of COVID-19, particularly shortness of breath, can be severe, and complications can manifest at an alarming pace. Most people in higher risk categories who develop serious illness will need advanced support. This level of supportive care requires highly expensive and specialized equipment, including ventilators, that are in limited supply.19
29. Increasingly, and in the United States in particular, even some younger and healthier people who contract COVID-19 may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen.20 Medical providers and medical facilities are in peril of becoming completely overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 continues to spread.21
30. Even for those who survive COVID-19, recent clinical evidence indicates that in persons who suffer severe symptoms, the virus may also 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
17 Coronavirus Disease 2019 (COVID-19): People Who Need Extra Precautions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fspecific-groups%2Fhigh-risk-complications.html (last visited Mar. 29, 2020). 18 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-chinajoint-mission-on-covid-19-final-report.pdf 19 Greifinger Aff., Exhibit 1. 20 Meyer Decl., Exhibit 2. 21 Id.
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system. This damage is so extensive and severe that it may be enduring. 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. Indeed studies of some recovered patients in China and Hong Kong indicate a declined lung function of 20% to 30% after recovery.22
31. The only way to prevent complications and the enormous risk to medically vulnerable people is to prevent them from becoming infected. 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.23 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.24
22 Tianbing Wang, et al., Comorbidities and Multi-Organ Injuries in the Treatment of COVID-19, 395 Lancet 10228 (2020), available at https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30558-4/fulltext; 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 Apr. 1, 2020). 23 Coronavirus Disease 2019 (COVID-19): Situation Summary, CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (lasted visited Mar. 29, 2020). 24 Coronavirus Disease 2019 (COVID-19): How to Protect Yourself, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Fprevention.html (last visited Mar. 29, 2020).
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32. The CDC has issued a guidance that gatherings of more than 10 people must not occur.25 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
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.26
33. On March 20, 2020, Illinois Governor Pritzker took the strictest measure yet to
fight the virus’s spread, issuing a “stay at home” executive order for all residents effective
starting March 21, 2020 through at least April 7, 2020; which was then extended to April 30, 2020.27 The order directs all non-essential business and operations to cease. People are allowed
to leave their homes only for essential activities. Any gathering larger than 10 people is
prohibited, and people are recommended to stay at least six feet away from others. Restaurants,
bars, schools, parks, and libraries have all been shut down. In a statement to the public,
Governor Pritzker explained that his order was based on his conversations with “some of the best
medical experts, epidemiologists, mathematicians, and modelers,” and all recommended a stay at home order “to avoid the loss of potentially tens of thousands of lives.”28
25 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-covid19.html (last visited Apr. 1, 2020). 26 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). 27 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 Extended Through April, Pritzker Announces, NBCChicago (Mar. 31, 2020) https://www.nbcchicago.com/news/local/illinois-stay-at-home-order-expected-to-be-extendedsources/2247274/ 28 Gov. J.B. Pritzker issues order requiring residents to ‘stay at home’ starting Saturday, Chicago Tribune, Mar. 20, 2020, https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-shelter-inplace-lockdown-order-20200320-teedakbfw5gvdgmnaxlel54hau-story.html
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34. Governors around the country, including in California, New York, and Connecticut, have issued similar stay at home orders to curb the spread of the virus.29
35. Recognizing the imperative of social distancing, Circuit Court Chief Judge Timothy Evans ordered that the Cook County courts be largely closed to the public, that all hearings be conducted via videoconference wherever possible, and that all individuals in the courthouses maintain a minimum distance of six feet from all other individuals.30 This Court, joined by other district courts in the state and across the country, have continued all criminal and civil jury trials because the imperative of social distancing “render[s] juror participation difficult or unsafe.”31
II. Incarcerated People Are Particularly Vulnerable to Infection from COVID-19 36. 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. Correctional facilities are inherently congregate environments, where large groups of people live, eat, and sleep in close contact with one another. It is impossible to achieve social distancing standards in these settings.32 Therefore infectious diseases, particularly airborne diseases, such as COVID-19, are more likely to spread rapidly between individuals in correctional facilities.33
37. 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
29 Id. 30 Circuit Court of Cook County, Administrative Order 2020-01 (amended Mar. 30, 2020), available at http://www.cookcountycourt.org/Portals/0/Order%203-30-20.pdf 31 U.S. District Court for the Northern District of Illinois, 2d Am. Gen. Order 20-0012 (Mar. 30, 2020); see also U.S. District Court for the Southern District of Illinois, Admin. Order 263 (Mar. 30, 2020); U.S. District Court for the Central District of Illinois, Am. Gen. Order 20-01 (Mar. 18, 2020). 32 Greifinger Aff., Exhibit 1; Haney Decl., Exhibit 3. 33 Beyrer Aff., Exhibit 4; Meyer Decl., Exhibit 2.
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often have limited access to soap, hand sanitizer, hot water, and other necessary hygiene items. Surfaces are infrequently washed, if at all, and cleaning supplies are in short supply.34 These needs are now multiplied and also compounded by the lack of personal protective equipment (PPE) such as masks and gloves for either staff or prisoners. This means there are more people who are susceptible to getting infected all congregated together in a context in which fighting the spread of an infection is nearly impossible.
38. Given the history of epidemiologic outbreaks in correctional facilities, such as Tuberculosis, influenza, and MRSA, it is expected that COVID-19 will also readily spread in prisons, especially when people cannot engage in proper hygiene and adequately distance themselves from infected residents or staff. 35
39. The people who live in these environments—environments that defy all current public safety standards— are themselves at high risk 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-19.36 As Dr. Craig Haney, a correctional health expert, explains, 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).”37
40. Additionally, many correctional facilities lack an adequate medical care infrastructure to address the spread of infectious disease, like COVID-19, and treat high-risk
34 Greifinger Aff., Exhibit 1; Meyer Decl., Exhibit 2; Beyrer Decl., Exhibit 4; Haney Decl., Exhibit 3. 35 Beyrer Decl., Exhibit 4. 36 Id. 37 Haney Aff., Exhibit 3.
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people in custody.38 Prison health units are not equipped with sufficient emergency medical equipment, such as oxygen tanks, nasal cannulae, 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.”39 Prisons and jails rely 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 will likely be at or over capacity themselves.40
41. Prisons 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 the prisons on a daily basis. Staff arrive and leave each facility three times a day in large numbers, and there is little to no ability to adequately screen staff for new, asymptomatic infection. When the COVID-19 virus occurs and spreads within a prison, 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.41
42. At the Governor’s March 29, 2020, daily briefing on the coronavirus situation, IDPH Director Dr. Ngozi Ezike acknowledged the present danger that when the infection enters prisons, the congregate nature of these facilities, with staff coming and going from the
38 Greifinger Aff., Exhibit 1; Meyer Decl., Exhibit 2. 39 “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/ 40 Meyer Decl., Exhibit 2. 41 Greifinger Aff., Exhibit 1.
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community each day in large numbers, will “increase the rate of infection and its fast spread
through these facilities.”42
43. On March 30, 2020, following the death of a COVID-19 patient at Stateville, Dr.
Ezike again acknowledged the heightened risk posed by correctional settings and the inability to
conform them to public health standards:
Congregate 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. Those who are incarcerated obviously live and work and eat and study and recreate all within that same environment, heightening the potential for COVID-19 to spread really quickly once it’s introduced. 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. I know our partners at the Department of Corrections are working innovatively to try to create the best situations for these, for these facilities. But some facilities and correctional centers do not have enough individual cells, and so we are considering isolating multiple laboratory confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group.43
44. The devastating impact that a COVID-19 outbreak in IDOC will have on
surrounding communities is already a reality. Stateville Correctional Center announced its first
confirmed case on Wednesday, March 25, 2020, and by Monday evening, March 30, 2020, St.
Joseph Hospital in Joliet was “overwhelmed” by inmates suffering from the effects of
coronavirus and staff were “maxed out.”44 The hospital’s medical director, Dr. John Walsh,
said, “This is a disaster because what I most fear is that without some resolution, the number of
42 The Governor’s Press Conferences are available for streaming at: https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefing-from-illinois-healthofficials/2234359/ (last visited March 31, 2020). 43 Available at: https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefing-fromillinois-health-officials/2234359/ (last visited March 31, 2020). 44 abc7 Chicago, Illinois Prisoners Sick with COVID-19 Overwhelm Juliet Hospital (video), available at https://abc7chicago.com/health/illinois-prisoners-sick-with-covid-19-overwhelm-joliet-hospital/6064085/ (last visited Mar. 31, 2020).
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cases coming in from Stateville will become excessive. We currently have nine inmates on ventilators, critically ill. There was four in the emergency department a couple of hours ago, and I believe the volume of patients there is huge. In addition, something has to be done at Stateville. You will have a huge epidemic, remembering that 20% of the people who contract this virus are probably gonna end up in hospital and a number of them are gonna die. This could end with up to 100 inmates dying if this is out of control, and they are not isolated well at this point.”45 St. Joseph Hospital is now caring for 17 prisoners from Stateville, 9 of whom are in intensive care on ventilators. Other prison communities throughout Illinois are similarly situated, many with far fewer intensive care beds available to provide care when an outbreak occurs. To prevent the crisis now occurring in Joliet from repeating and worsening across the state, effective mitigation measures must be taken now.
III. Reducing the Prison Population Is the Only Meaningfully Means to Prevent the Harm Caused by COVID-19 in Prisons and their Surrounding Communities
45. Because the public health and safety measures cannot be fully achieved in correctional facilities, other steps must be taken to save lives and protect the spread of the infection from these communities. Proactive risk mitigation, including eliminating close contact in congregate environments, is the only effective way to prevent the spread of the COVID-19 infection. In fact, a study published in the Journal of Travel Medicine found that the number of COVID-19 cases on the Diamond Princess cruise ship would have been more than eight times
45 Id. 16

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lower if the ship had been evacuated in a timely manner, rather than requiring the passengers to quarantine within the close confines of the ship.46
46. Public health experts with experience in correctional settings have similarly recommended the release from custody of people most vulnerable to COVID-19 to protect the communities inside and outside the prisons, and to slow the spread of the COVID-19 infection. Population reduction protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for all people held or working in a correctional facility. Because prisons are often located in small rural communities, removing the most vulnerable people from custody also reduces the burden on those region’s limited health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time and require hospitalization in these small communities.
47. Dr. Robert Greifinger, a correctional health expert, has concluded that “[r]isk mitigation is the only viable public health strategy available to limit transmission of infection, morbidity and mortality in prisons, and to decrease the likely public health impact outside of the prisons. Even with the best-laid plans to address the spread of COVID-19 in prisons, the release of individuals, prioritizing the most medically vulnerable individuals, is a key part of a risk mitigation strategy . . . Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility.”
46 Sandoiu, supra (Citing Rocklov J., Sjodin H., Wilder-Smith A., COVID-19 Outbreak on the Diamond Princess Cruise Ship: Estimating the Epidemic Potential and Effectiveness of Public Health Countermeasures. Journal of Travel Medicine (Feb. 28, 2020), https://academic.oup.com/jtm/advancearticle/doi/10.1093/jtm/taaa030/5766334
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48. Dr. Greifinger explains that reducing the prison population “has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, disinfecting supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff, which will likely be reduced by illness, such that they can continue to ensure the safety of detainees.”
49. Similarly, Dr. Craig W. Haney, a Distinguished Professor of Psychology and UC Presidential Chair at the University of California Santa Cruz, recommends that “adult prisons must reduce their populations urgently in order to allow the necessary social distancing in response to the COVID-19 Pandemic.”47
50. Professor Chris Breyer, professor of Epidemiology at John Hopkins Bloomberg School of Public Health, has concluded: “While every effort should be made to reduce exposure in detention facilities, this may be extremely difficult to achieve and sustain. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.”48
51. Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing, has concluded that “[r]educing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.”49 She explains that “[h]ealth in jails and prisons is community health. Protecting the health of
47 Haney Decl., Exhibit 3. 48 Beyrer Decl., Exhibit 4. 49 Meyer Decl., Exhibit 2.
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individuals who are detailed in and work in these facilities is vital to protecting the health of the wider community.”50
52. Dan Pacholke, a corrections expert with more than 37 years of experience, has specific recommendations for steps IDOC can take to proactively respond to COVID-19 to protect the health and safety of people in IDOC custody and IDOC staff.51 Mr. Pacholke explains: “Among those steps is considering how IDOC can exercise its authority and discretion . . . to reduce the prison population. This includes awarding good time credits, transferring people to home detention, and authorizing medical furloughs.”52 Mr. Pacholke further explains that “[a]ll of these and any other options should be fully utilized to allow individuals to maintain social distancing and have better access to testing and treatment. This will also help mitigate the impact of staff shortages and lessens the burden on prison medical services.”53
53. Internationally, governments have recognized the threat posed by COVID-19 in correctional facilities and have released detainees. In Iran, for example, about 70,00 people were temporarily released from jails to curb the spread of COVID-19.54
54. In the United States, the need to address the COVID-19 problem in prisons has been recognized on a national level. The COVID-19 stimulus package passed by Congress specifically includes funding for federal prisons to purchase personal protective gear and tests kits for COVID-19 because of the “density of the inmate population, the high traffic, the high
50 Id. 51 Pacholke Decl., Exhibit 5. 52 Id. 53 Id. 54 Iran Temporarily Releases 70,000 Prisoners As Coronavirus Cases Surge, Reuters (Mar. 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisonersascoronavirus-cases-surge-idUSKBN20W1E5
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volume of inmates, [and] the high rate of turnover of inmates and personnel.”55 The bill
authorizes the Attorney General to lengthen the maximum amount of time that a federal prisoner can be placed in home confinement during the pandemic.56
55. On March 30, 2020, the United States House of Representatives Committee on
the Judiciary recommended a similar plan of action, calling on the federal Bureau of Prisons to
drastically increase its population reduction efforts, including through release where viable and increased use of home detention.57
56. Echoing the calls of advocates and medical professionals, a group of 35 elected
prosecutors have called on leaders within the criminal legal system to “dramatically reduce the number of incarcerated individuals and the threat of disastrous outbreaks.”58
57. A number of states have begun to take steps to protect people in prisons from the
impending spread of COVID-19 by releasing people in an effort to reduce populations.
58. In California, Governor Newsom announced his plans to accelerate the release of
3,500 people from state prisons in an effort to reduce the population as COVID-19 infections continue to spread in the prisons.59 This announcement comes in advance of a court hearing
schedule to begin later this week to determine if more individuals should be released.
55 Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) H.R. 748, at 633 (2020), available at https://assets.documentcloud.org/documents/6819239/FINAL-FINAL-CARES-ACT.pdf 56 Id. at 634. 57 March 30, 2020 letter, https://judiciary.house.gov/uploadedfiles/3.30.20_letter_to_ag_barr_re_covid19.pdf?utm_source=The+M arshall+Project+Newsletter&utm_campaign=e6df8704efEMAIL_CAMPAIGN_2020_03_31_11_34&utm_medium=email&utm_term=0_5e02cdad9de6df8704ef-174272961 58 Fair and Just Prosecution, Joint Statement from Elected Prosecutors on COVID19 and Addressing the Rights and Needs of Those in Custody (Mar. 2020), https://fairandjustprosecution.org/wpcontent/uploads/2020/03/Coronavirus-Sign-On-Letter.pdf 59 Paige St. John, California to release 3,500 inmates early as coronavirus spreads inside prisons, LATimes (Mar. 31, 2020), https://www.latimes.com/california/story/2020-03-31/coronavirus-californiarelease-3500-inmates-prisons.
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59. The Iowa Department of Corrections has announced that the DOC is expediting
the release of about 700 prisoners, or 7% of its population, who are approved for parole or work
release.60
60. In New York, Governor Cuomo ordered the release of more than 1,000 people
who are in prisons and jails across the state on the basis of a parole violation.61
61. In Colorado, Governor Polis issued an executive order that suspended the caps
and criteria Colorado places on the accrual of good time credits in order to allow the DOC to
award earned time credits to “facilitate the reduction of the population of incarcerated persons
and parolees to prevent an outbreak in prisons.”62 Additionally, the Colorado governor
suspended and relaxed the criteria for individuals to be released to Special Needs Parole.63
62. The Vermont Department of Corrections has worked to reduce its population:
“[t]he goal is to reduce our (inmate) population so we can start spreading out the remaining
population.”64 Jim Baker, commissioner for the Department, stated that they “started by looking
at which inmates can be let out on furlough and who can be released on probation.”65 Since late
60 Officials cut prison, jail numbers; Iowa virus cases hit 105, Newton Daily News (Mar. 24, 2020) https://www.newtondailynews.com/2020/03/23/officials-cut-prison-jail-numbers-iowa-virus-cases-hit-
105/acs5xbk/. Also, in North Dakota, the state parole board decided to release over fifty people, or about 2% of its prison population, on early parole. See April Baumgarten, North Dakota paroles
56 prisoners early amid pandemic, including 3 convicted of sexual assault, Grand Forks Herald (Mar. 20, 2020), https://www.grandforksherald.com/news/crime-and-courts/5009882-North-Dakota-paroles-56prisoners-early-amid-pandemic-including-3-convicted-of-sexual-assault 61 Brendan J. Lyons, NY to release 1,100 parole violators as coronavirus spreads, Times Union (Mar. 27, 2020), https://www.timesunion.com/news/article/Deaths-surge-again-in-New-York-from-coronavirus15160973.php (reporting on New York Governor Cuomo’s order to release parole violators). 62 State of Colorado, Executive Order D 2020 016, March 25, 2020, at pg. 2, available at: https://drive.google.com/file/d/18o0yWHzZleHJ87hmgLuBmXwpM8R74Q5x/view 63 Id. 64 Anna Merriman, ‘It’s very difficult to control’: Many Vermont inmates released so that those who remain can be spread out, Valley News (Mar. 26, 2020). https://www.vnews.com/Vermont-NH-prisonsworking-to-reduce-population-to-prevent-virus-spread-33512589 65 Id.
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February, the Vermont DOC has released over 200 prisoners (from a population of approximately 1600), with 100 prisoners being released in the past week.66
63. Other states, like Oklahoma and Wisconsin, have taken more moderate, and thus
less effective, steps to reduce the populations in prisons by only halting new admissions from county jails into state prison facilities.67
64. Several counties with significant jail populations have also undertaken measures
to reduce their facility’s population in an effort to slow the spread of COVID-19. Many of these
steps have included drastically reducing the jail populations within a matter of weeks, or
sometimes days. Counties on the West Coast have been the sites of several large scale jail
population reductions. Counties in California in particular have seen significant reductions. The
Los Angeles County Sheriff decreased the jail population by ten percent by releasing 1,700 individuals within the last month.68 In Alameda County in Northern California, more than 300
individuals have been released from jail in the span of two weeks, amounting to eleven percent of the jail’s population.69 Oregon has similarly reduced its jail population in Washington
County, outside Portland, by more than 120 inmates (from a population of 574), freeing up
66 Id.; For population size, see https://doc.vermont.gov/sites/correct/files/documents/2020-03-23DOC%20Staff%20Test.pdf 67 DOC Stops Accepting Newly Sentenced State Prisoners, The Frontier (Mar. 22, 2020), https://www.enidnews.com/news/local_news/doc-stops-accepting-newly-sentenced-stateprisoners/article_ea6a42a4-47c1-5dbc-9446-5dec46032c5d.html (Oklahoma DOC halting new admissions into the state prison system); Emergency Order # 9, Order to the Dep’t of Corrections, Tony Evers, Gov. Wisconsin (Mar. 20, 2020). 68 Justin Carissimo, 1,700 inmates released from Los Angeles County in response to coronavirus outbreak, CBS News (Mar. 24, 2020), https://www.cbsnews.com/news/inmates-released-los-angelescounty-coronavirus-response-2020-03-24/ 69 Sheriff Releases 314 Inmates to Reduce Coronavirus Risk at Alameda County Jail, NBC Bay Area, (Mar. 19, 2020), https://www.nbcbayarea.com/news/coronavirus/sheriff-releases-314-inmates-to-reducecoronavirus-risk-at-alameda-county-jail/2258026/ (“The release of the 314 inmates reduces the number of inmates at Santa Rita to 2,40.”).
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enough space for each remaining inmate to be housed in their own cell.70 Washington State
similarly released more than 400 individuals from county jails in Clark and King County over
the course of a couple of days.71 In Arizona, Coconino County released ten percent of the jail
population to reduce the population to 400,72 and the Pima County Sheriff has proposed
releasing seven percent of the jail population by releasing 135 inmates.73 In Utah, about 200
individuals are in the process of being released from the Salt Lake County jail over the coming
days (a 10% reduction in population), following the release of about 90 women from county
jail.74
65. Cleveland, Ohio drastically reduced the Cuyahoga County jail’s population by
releasing over 700 people from detention, a 35 percent reduction in population.75 In Minnesota,
the Hennepin County jail released 26 percent of the individuals detained.76 In New Orleans,
70 Kimberly Kindy, Emma Brown & Dalton Bennett, ‘Disaster waiting to happen’: Thousands of inmates released as jails and prisons face coronavirus threat, Washington Post (Mar. 25, 2020), https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-inmates-released-asjails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-b313-df458622c2cc_story.html (Washington County jail reduced its population by 120 individuals); Bob Heye, Coronavirus and Crime: Jail releases, a rash of break-ins and one encouraging trend, KATU (Mar. 23, 2020), https://katu.com/news/coronavirus/coronavirus-and-crime-jail-releases-a-rash-of-break-ins-and-oneencouraging-trend 71 Jerzy Shedlock, Clark County Jail releases nearly 200 inmates due to COVID-19, The Columbian (Mar. 25, 2020), https://www.columbian.com/news/2020/mar/25/clark-county-jail-releases-nearly-200inmates-due-to-covid-19/ 72 Scott Buffon, Coconino County jail releases nonviolent inmates in light of coronavirus concerns, Arizona Daily Sun (Mar. 20, 2020), https://azdailysun.com/news/local/coconino-county-jail-releasesnonviolent-inmates-in-light-of-coronavirus-concerns/article_a6046904-18ff-532a-9dba54a58862c50b.html 73 Jacques Billeaud, Tucson lawyers seek release of nonviolent inmates from jail, Tucson.com (Mar. 24, 2020), https://tucson.com/news/local/crime-and-courts/tucson-lawyers-seek-release-of-nonviolent-inmates-fromjail/article_0cd49be4-6dd6-11ea-99d3-576d60e1dae5.html. 74 Francisco Kjolseth, Hundreds of Utah inmates will soon be released in response to coronavirus, The Salt Lake Tribune (Mar. 20, 2020), https://www.sltrib.com/news/2020/03/21/hundreds-utah-inmates/ (the total jail population in Salt Lake County jail was 1,964 people). 75 Officials taking steps to reduce county jail populations in Ohio, AP, WBNS (Mar. 21, 2020), https://www.10tv.com/article/officials-taking-steps-reduce-county-jail-populations-ohio-2020-mar 76 Coronavirus In Minnesota: Hennepin County Jail Population Cut By 26% After Release Of Low-Risk Inmates To Prevent COVID-19 Spread, CBS Minnesota (Mar. 23, 2020),
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judges overseeing the local criminal court issued a “blanket order” to release a substantial number of individuals being held in pretrial detention.77 The New Orleans jail population has subsequently been reduced by about 14 percent.78 In Alabama, the jail population in Washington
County is likely to reduce by over 40 percent: from more than 800 a few months ago to below 450.79 Several other Midwestern and Southern counties have seen population reductions of 150
or more individuals from relatively small county jails, including: Oklahoma County,
Oklahoma;80 Sedgwick County, Kansas;81 Bexar County, Texas;82 St. Louis County, Missouri;83
https://minnesota.cbslocal.com/2020/03/23/coronavirus-in-minnesota-hennepin-county-jail-populationcut-by-26-after-release-of-low-risk-inmates-to-prevent-covid-19/ 77 Orleans Criminal Court judges order release of certain inmates amid coronavirus crisis, WDSU News, (Mar. 26, 2020), https://www.wdsu.com/article/orleans-criminal-court-judges-order-release-of-certaininmates-amid-coronavirus-crisis/31943462# 78 Id. 79 Tom Sissom, Washington County jail plans for release of 81 more inmates, Northwest Arkansas Democrat-Gazette (Mar. 26, 2020), https://www.nwaonline.com/news/2020/mar/26/washington-countyjail-plans-release-81-more-inmat/ 80 Oklahoma County, (Kayla Branch, Coronavirus in Oklahoma: Over 200 nonviolent offenders released from Oklahoma County jail to limit COVID-19 spread, The Oklahoman (Mar. 25, 2020) https://oklahoman.com/article/5658504/coronavirus-in-oklahoma-over-200-non-violent-offendersreleased-from-oklahoma-county-jail-to-limit-covid-19-spread (releasing 200 people). 81 R. Leiker & Michael Stavola, So far, 200 jail inmates released over COVID-19 concerns, Sedgwick County DA says, The Wichita Eagle (Mar. 26, 2020), https://www.kansas.com/news/local/crime/article241501106.html 82 Eileen Pace, Bexar County Jail Explores Early Releases, Ceasing Low-Level Arrests Amid Coronavirus, Texas Public Radio (Mar. 20, 2020), https://www.tpr.org/post/bexar-county-jail-exploresearly-releases-ceasing-low-level-arrests-amid-coronavirus (releasing more than 140 people). 83 Jeremy Kohler & Joel Currier, St. Louis city and county to release more than 140 inmates amid virus concerns, St. Louis Post-Dispatch (Mar. 26, 2020) https://www.stltoday.com/news/local/crime-andcourts/st-louis-city-and-county-to-release-more-than-inmates/article_dd8b30f6-c3ea-5229-b7ac0aa36ee8f14c.html.
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Macomb and Wayne Counties in Michigan;84 Kenton and Louisville Counties in Kentucky;85
and Nashville, Tennessee.86
66. On the East Coast, Pittsburgh reduced the county jail population by 20 percent by
releasing approximately 500 people.87 New York City plans to release about 7% of Rikers
Island’s population by releasing 375 inmates who do not pose a threat to society, amidst a call
from advocates for more releases given the ballooning rate of infection in Rikers Island.88 A
Florida county, which includes Tampa, also reduced its local jail population of 2,700 by
releasing 6 percent, or 164 people, from the jail.89
67. Supreme courts in several states have collaborated in or led the efforts to reduce
jail populations by issuing orders, demonstrating a growing consensus on the huge impact that
84 Karen Drew, Metro Detroit county jails reviewing cases to see which inmates could be released amid coronavirus (COVID-19) outbreak, Click On Detroit (Mar. 24, 2020), https://www.clickondetroit.com/news/defenders/2020/03/25/metro-detroit-county-jails-reviewing-casesto-see-which-inmates-could-be-released-amid-coronavirus-covid-19-outbreak/ (the two counties combined released more than 440 individuals). 85 John Cheves, Chief justice pleads for Kentucky inmate releases ahead of COVID-19, but progress slow, Lexington Herald Leader (Mar. 23, 2020), https://www.kentucky.com/news/coronavirus/article241428266.html; Katrina Helmer, Metro Corrections releasing non-violent inmates to prevent coronavirus spread, WDRB.com (Mar. 18, 2020), https://www.wdrb.com/news/metro-corrections-releasing-non-violent-inmates-to-prevent-coronavirusspread/article_0fbed080-6968-11ea-ada1-f73b721440b2.html 86 Kevin Johnson, Local jails releasing hundreds of prisoners amid coronavirus fears, up from dozens just weeks ago, USAToday (Mar. 26, 2020), https://www.usatoday.com/story/news/politics/2020/03/26/jails-free-hundreds-prisoners-stopcoronavirus/5077204002/ 87 Paula Reed Ward, 485 Allegheny County jail inmates released over virus fears, Pittsburgh PostGazette (Mar. 26, 2020), https://www.post-gazette.com/news/crime-courts/2020/03/26/AlleghenyCounty-jail-inmates-485-released-Pittsburgh-coronavirus-COVID-19-fears/stories/202003260184. 88 Tess Owen, NYC Is Releasing Hundreds of Inmates to Stop the Spread of Coronavirus, VICE News (Mar. 26,2020), https://www.vice.com/en_us/article/939j9a/nyc-is-releasing-hundreds-of-inmates-to-stopthe-spread-of-cornavirus; Noah Higgins-Dunn, Coronavirus: New York City to release 300 nonviolence inmates from Rikers Island, CNBC (Mar. 24, 2020) https://www.cnbc.com/2020/03/24/coronavirus-newyork-city-to-release-300-nonviolent-inmates-from-rikers-island.html 89 Thomas Metevia, , Hillsborough County to free non-violent inmates in effort to prevent COVID-19 spread, , Click Orlando.com (Mar. 20, 2020), https://www.clickorlando.com/news/local/2020/03/19/hillsborough-county-to-free-non-violent-inmatesin-effort-to-prevent-covid-19-spread/.
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the virus has within detention facilities. The Chief Justice of New Jersey ordered the release of
approximately 1,000 individuals from New Jersey jails, which is nine percent of the
population.90 South Carolina’s chief justice ordered the release of all individuals charged with a
non-capital offense on their own recognizance, unless the individual presents an unreasonable
danger to the community or is an extreme flight risk.91 Nearly 200 people were released
pursuant to this order.92 In Montana, the Chief Justice instructed his state’s judges to “review
your jail rosters and release, without bond, as many prisoners as you are able, especially those
being held for non-violent offenses.”93 In California, the Chief Justice instructed courts at
sentencing or when setting conditions of release to consider the person’s “existing health
conditions” and any “conditions existing at . . . the anticipated place of confinement that could
affect the [person’s] health.”94
68. Recognizing the immediate threat of COVID-19 and the need to reduce the
population of Cook County Jail to limit the risk of jail detainees and staff being exposed to
COVID-19 and allow for people in the jail to practice social distancing, on March 23, 2020,
90 In re Request to Commute or Suspend County Jail Sentences, Dkt. No. 084230 (N.J. Mar. 22, 2020) (ordering the release of any inmate in New Jersey serving a county jail sentence as a condition of probation or as a result of a municipal court conviction); see Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, NYTimes (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html. 91 Memorandum from Donald W. Beatty, Chief Justice of South Carolina Supreme Court, to Magistrates, Municipal Judges, and Summary Court Staff (Mar. 16, 2020), https://www.sccourts.org/whatsnew/displayWhatsNew.cfm?indexId=2461 92 Kyle C. Barry, Some Supreme Courts Are Helping Shrink Jails To Stop Outbreaks. Others Are Lagging Behind, The Appeal (Mar. 25, 2020), https://theappeal.org/politicalreport/some-supreme-courtsare-helping-shrink-jails-coronavirus/ 93 Letter from Mike McGrath, Chief Justice of 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%20COVID19%20032020.pdf?ver=2020-03-20-115517-333. 94 Kyle C. Barry, Some Supreme Courts Are Helping Shrink Jails To Stop Outbreaks. Others Are Lagging Behind, The Appeal (Mar. 25, 2020), https://theappeal.org/politicalreport/some-supreme-courtsare-helping-shrink-jails-coronavirus/
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Judge LeRoy Martin in the Circuit Court of Cook County issued an order for an expedited bond process for specific classes of defendants, including those charged with low-level felonies, those detained on a cash bond they cannot afford, medically-vulnerable detainees, those serving a jail sentence, and those locked up on a probation or parole violation warrant.95
IV. IDOC and Governor Pritzker Are Failing to Take Necessary Precautions to Reduce the Spread of COVID-19 Within Prisons and Their Surrounding Communities, Placing People at an Increased Risk
69. The IDOC operates 28 adult correctional facilities throughout the State of Illinois and houses around 37,000 individuals. There are 11,600 individuals employed by the IDOC.
70. Illinois prisons are on the cusp of an outbreak, but there is still time for urgent and decisive action that can prevent harm. The first confirmed cases of COVID-19 in IDOC occurred on Wednesday, March 25, 2020—three prisoners and three staff tested positive for COVID-19, and 10 additional prisoners were tested and were awaiting results.
71. As of April 1, 2020, there are 52 confirmed prisoners who have COVID-19 in two different correctional centers (Stateville and North Lawndale ATC) and 25 confirmed staff who have the virus in seven different correctional centers (Stateville NRC, Stateville, Sheridan, North Lawndale ATC, Menard, Joliet Treatment Center, and Crossroads ATC).96 There are 187 additional prisoners who were tested and are awaiting results.97 However, the actual number of individuals with COVID-19 in IDOC is likely much higher.
95 Matt Masterson, COVID-19 Case at Cook County Jail Prompts More Calls for Mass Detainee Release, WTTW News (Mar. 23, 2020), https://news.wttw.com/2020/03/23/covid-19-case-cook-county-jailprompts-more-calls-mass-detainee-release 96 COVID-19 Response, Illinois Department of Correction, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited April 1, 2020). 97 Id.
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72. On March 30, 2020, health officials announced that a prisoner in his 50s housed at Stateville Correctional Center had died from COVID-19.98
73. On March 26, 2020, the Governor acknowledged that “certain populations are at a higher risk of experiencing more severe illness as a result of COVID-19, including older adults and people who have serious chronic health conditions, such as heart disease, diabetes, lung disease or other mental or physical conditions.”99 The Governor also acknowledged that “the vast majority” of those housed within IDOC are in “close proximity and contact with each other in housing units and dining halls,” making them “especially vulnerable to contracting and spreading COVID-19.”100 The Governor further acknowledged that “the IDOC currently has limited housing capacity to isolate and quarantine inmates who present as symptomatic of, or test positive for, COVID-19.”101 The Governor stated that “to ensure that the Director of the IDOC may take all necessary steps, consistent with public health guidance, to prevent the spread of COVID-19 in the IDOC facilities and provide necessary healthcare to those impacted by COVID-19, it is critical to limit any increases in the number of inmates in the IDOC facilities.”102 In response, the Governor issued an emergency executive order that suspended admissions of new prisoners from county jails.103 The Governor’s order, however, failed to address the fact that hundreds of people will still come and go from the prisons every day, and does not speed up and extend the release of any of the current population.
98 Emily Hoerner, Edlerly inmates are at high risk for coronavirus. Why are there so many of them in Illinois’s prisons?, InjusticeWatch, https://www.injusticewatch.org/news/2020/elderly-inmates-are-athigh-risk-for-coronavirus-why-are-there-so-many-of-them-in-illinoiss-prisons/ 99 Executive Order 2020-13 (March 26, 2020), https://www2.illinois.gov/IISNews/21288Gov._Pritzker_Stay_at_Home_Order.pdf 100 Id. 101 Id. 102 Id. 103 Id.
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74. Neither the Governor nor the IDOC have acted with the urgency or decisiveness that is required to quell this oncoming crisis. The Governor has not taken any steps to substantially reduce the population or expand IDOC’s ability to release, furlough, or transfer to home detention even those who are medically vulnerable. IDOC has taken only limited steps to this end, releasing far fewer than it could even in cases of those who are medically vulnerable and close to the end of the incarceration period anyway.
75. Even before COVID-19 entered IDOC, activists, community organizers, and civil rights lawyers began advocating for de-population efforts in IDOC to curb the spread. On March 17, 2020, advocates sent a letter to Governor Pritzker urging him to order IDOC to release individuals who can be released from custody in a way that is consistent with public safety. The letter outlined a number of specific actions Governor Pritzker should take to protect the vulnerable individuals in IDOC custody, as well as the staff who work there, including: (1) immediately ordering the release of individuals whose release dates are within 120 days; (2) release all individuals in custody awaiting parole revocation hearings; (3) prioritize release for any individuals whose release plans are pending host site approval; (4) order IDOC to stop taking people into custody for parole violations unless they present a clear and present danger of imminent physical harm, and rescind all parole warrants; (5) release individuals with viable clemency petitions; (6) take all actions necessary to maximize good time credits; (7) evaluate individuals who are pregnant, postpartum, or living with their infants in IDOC programs; (8) evaluate individuals with HCU living assignments and chronic care needs for consideration of early release; (9) take steps to limit intake into IDOC facilities; and (10) ensure that the IDOC
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has the resources necessary to combat a possible COVID-19 outbreak in one or more IDOC facilities.104
76. Illinois law provides several established mechanisms for reducing the prison population, all of which are available to the Governor and Director in this emergency. The Governor and Director of IDOC have authority pursuant to various Illinois statues to reduce the population in Illinois prisons. Pursuant to 730 ILCS 5/3-11-1(a)(2), the IDOC may release a person from prison on medical furlough “to obtain medical, psychiatric or psychological services when adequate services are not otherwise available.” The IDOC therefore has statutory authority to release on medical furlough individuals who are medically vulnerable to COVID-19 either due to age or pre-existing medical conditions.
77. Pursuant to the Electronic Monitoring and Home Detention Law, 730 ILCS 5/58A-1 et seq. (“Home Detention Law”), IDOC has the authority and obligation to implement procedures through which eligible prisoners may serve a portion or all of their custodial sentence in home detention. The Home Detention Law directs the Department to issue administrative directives to allow for specifically enumerated categories of state prisoners to serve portions of their sentence in home detention. Pursuant to 730 ILCS 5/5-8A-3(d), IDOC may place a prisoner in an electronic monitoring or home detention program if that person is over 55 years old, has 12 months or less to serve on their sentence, has served at least 25% of their sentenced prison term, and is serving a sentence for conviction of an offense other than for certain sex offenses.
104 March 17, 2020 Letter, Exhibit 6. 30

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78. Pursuant to 730 ILCS 5/5-8A-3(e), IDOC may place a person of any age serving a sentence for conviction of a Class 2, 3, or 4 felony offense which is not an excluded offense in an electronic monitoring or home detention program at any time.
79. Pursuant to 730 ILCS 5/5-8A-3(b) and (c), IDOC may place a person of any age serving a sentence for conviction of a Class 1 or Class X felony offense, other than an excluded offense, in an electronic monitoring or home detention program for a period not to exceed the last 90 days of incarceration.
80. Pursuant to the Administrative Code, 20 Ill. Adm. Code 107.210, the Director of IDOC may award to eligible prisoners up to 180 days of discretionary good conduct credit.
81. On March 23, 2020, advocates sent a detailed memo to the Governor’s office, setting forth further details of who the IDOC could and should be releasing based on these relevant statutes and administrative directives. This memo emphasized that IDOC should identify and release as many individuals as possible who are medically vulnerable with regard to COVID-19 as well as people who are over the age of 55. The memo also urged the Governor’s Office to order IDOC to immediately, inter alia: (1) transfer to home detention and electronic monitoring all eligible people serving sentences for Class 2-4 felonies pursuant to 730 ILCS 5/58A-3(e); (2) transfer to home detention and electronic monitoring all eligible people over the age of 55 who have less than 12 months left to serve on their sentence pursuant to 730 ILCS 5/5-8A3(d); and (3) award discretionary good time credit pursuant to 20 Ill. Adm. Code 107.210 to the furthest extent possible to all eligible individuals to facilitate immediate and continuing releases.105
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82. Despite this pressure from advocates, and despite the Governor’s own admissions that people in IDOC custody are especially vulnerable to contracting and spreading COVID-19, the IDOC is not utilizing its authority with any degree of urgency to identify and release medically vulnerable prisoners or prisoners who otherwise qualify for early release.
83. On March 31, 2020, officials publicly announced that IDOC has released around 300 individuals—or less than one percent of the prison population.106 This number is far lower than the population reduction needed to protect those who remain in custody and the surrounding communities. Moreover, many who qualify for release and are medically vulnerable remain in custody, including named plaintiffs here, putting their lives in jeopardy.
84. Corrections expert Dan Pacholke has opined that IDOC should “determine who, including those still housed in prisons, and those on work release, is within the categories . . . that IDOC or other body has the legal authority to release or transfer, and establish objective criteria, such as having an appropriate release address, to establish who could safely be released or transferred to a non-prison setting, even though many might still remain in IDOC custody. The criteria adopted should be designed to significantly reduce the prison population.”107
85. If IDOC does not act immediately to reduce its prison population, COVID-19 is likely going to spread rapidly throughout IDOC, overburdening IDOC’s medical care program and resulting in likely deaths.108
106 The Governor’s Press Conferences are available for streaming at: https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefing-from-illinois-healthofficials/2234359/ (last visited March 31, 2020). 107 Pacholke Decl., Exhibit 5. 108 Haney Decl., Exhibit 3.
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V. IDOC’s Medical Care Program is Gravely Under-Resourced and UnderFunctioning, and is Not Capable of Managing COVID-19
86. Even before COVID-19, IDOC’s medical care program was ill-equipped to meet the medical needs of prisoners in its care. For over a decade, IDOC has been mired in litigation over its consistent failure to maintain a minimally adequate system. See Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.). In 2014 and again 2018, the Lippert court appointed teams of independent experts to conduct exhaustive reviews of IDOC’s medical system, both of which exposed a system in dire need of reform. In October 2018, the team of experts issued a 1200page report, reaching the following the conclusions:
a) The clinical care provided within IDOC was “extremely poor” and “resulted in preventable morbidity and mortality”;
b) IDOC lacked an adequate infections disease control program; c) IDOC’s Infectious Disease Coordinator position was vacant and had been vacant
since at least 2014; d) Systemic sanitation problems existed at multiple IDOC facilities; e) IDOC’s medical staff vacancy rates were “very high” and staffing was a “critical
problem” throughout IDOC; f) Physician staffing at IDOC was “very poor,” with “persistent and ongoing
vacancies” in site medical director positions, high rates of turnover, and an overreliance on “traveling” medical directors who go from site to site; g) Physicians who worked at IDOC were improperly credentialed, which was “a major factor in preventable morbidity and mortality” and “significantly increase[ed] the risk of harm to patients within IDOC.”109
109 Exhibit 8 (Lippert Expert Report, October 2018) at 9-10, 21-31, 84-91. 33

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87. Less than one year ago, IDOC agreed to a consent decree, which was approved and entered by the Court in May 2019, to begin needed reforms. See Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.), Doc. No. 1238 (consent decree). The consent decree called for the appointment of an independent monitor and a near complete overhaul of IDOC’s medical system.
88. In the nine months since the Lippert consent decree was entered, IDOC has taken preliminary steps to comply, but circumstances within the facilities remain largely unchanged. IDOC is still only in early stages of developing a compliance plan. There has been no meaningful on the ground change yet; facilities are still critically under-staffed and underresourced. IDOC is simply unable to adequately meet the serious medical needs of IDOC’s population even under non-pandemic circumstances.
89. Even before the COVID-19 outbreak, in November 2019, the Lippert court monitor warned that the prevalence of elderly and infirm individuals in IDOC was straining the system.110 Regarding this population, the monitor noted: “It is the position of the monitor that in the short term additional IDOC resources must be directed to properly house and care for this population but in the near future the IDOC must take the lead to create a pathway to discharge those men and women whose mental and medical conditions make them no longer a risk to society to appropriate settings in the community.”111
90. Since the outbreak of COVID-19, IDOC administrators have issued memos to prisoners notifying them that their medical resources were “stretched thin” and that they needed to focus “on [their] most vulnerable patients at this time.”112
110 Exhibit 9 (Lippert Court Monitor Report, November 24, 2019) at 9-10. 111 Id. 112 Exhibit 10 (IDOC Memorandum, COVID-19 Response).
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91. As of the date of this filing, there are 48 confirmed COVID-19 cases at Stateville, with approximately 19 Stateville prisoners in outside hospitals—so many that they overwhelmed the outside hospital that typically serves Stateville residents. The situation at Stateville is so grave that the Governor had to activate Illinois National Guard service members to provide additional medical support at the prison.113 At this point there are no confirmed prisoner cases at any other prison, but there is no reason to believe that COVID-19 will not reach the other prisons. Likewise there is no reason to believe that Stateville’s tragic outcome will not repeat itself at other facilities. The time to act is now.
VI. Plaintiffs are Particularly Vulnerable 92. Plaintiffs in this case are individuals who are currently housed in prisons and who
are particularly vulnerable to serious illness or death if infected by COVID-19. 93. James Money (S11097) is 28 years old and is housed at Illinois River
Correctional Center in Canton, Illinois. In 2016, Mr. Money was diagnosed with Stage 3 metastatic thyroid cancer. He has undergone several surgeries, most recently in January 2020, resulting in the removal of over 80 lymph nodes and a full thyroidectomy, and is now immunocompromised. He was scheduled to begin chemotherapy treatment on March 24, 2020, but IDOC cancelled his treatment, presumably to focus instead on COVID-19. Mr. Money has already served nearly 5 years of his sentence for residential burglary out of Adams County, and he is currently scheduled to be released on June 19, 2020. He is eligible for medical furlough pursuant to 730 ILCS 5/3-11-1 and discretionary good time pursuant to 20 Ill. Adm. Code 107.210. Mr. Money is also within 90 days of his release date, so he is eligible for transfer to
113 Tina Sfondeles, Illinois National Guard medics headed to Stateville as inmate coronavirus cases rise, Chicago Suntimes (Apr. 1, 2020), https://chicago.suntimes.com/coronavirus/2020/4/1/21202995/coronavirus-covid-19-illinois-prisonstateville-national-guard-field-hospital
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home detention pursuant to 730 ILCS 5/5-8A-3(b). Mr. Money’s parole conditions have already been determined and he is approved to reside with his fiancée’s residence in Warsaw, Illinois. His fiancée is fully prepared to provide for his medical needs. Mr. Money is a member of Subclasses 1, 5, and 6.
94. William Richard (M52774) is 66 years old and lives in the healthcare unit at Dixon Correctional Center. Mr. Richard has COPD, emphysema, and heart disease, and uses a wheelchair for movement. His respiratory disease requires continuous oxygen and a breathing treatment two to three times per day. He shares his roughly 12 feet by 15 feet cell with three other individuals, making social distancing impossible—his bunk is less than 5 feet from his cellmate’s bunk, and all four men share a toilet, sink, and the chuckhole through which they receive their meals. Mr. Richard has less than four months remaining on his sentence, and is eligible under 730 ILCS 5/5-8A-3(d) to transfer to home detention at his mother’s home. Mr. Richard is a member of Subclasses 1, 2, 3, and 6.
95. Gerald Reed (N32920) is housed at the Northern Reception Center. He is 57 years old. Mr. Reed has heart failure, hypertension, and is pre-diabetic. Mr. Reed uses a wheelchair for mobility because of a decades-old leg injury that adversely affects his mobility. Within the last year, Mr. Reed has been hospitalized for a heart attack and for pneumonia. At the NRC, he is prohibited from accessing commissary and is only provided a single, small bar of soap. Pursuant to 730 ILCS 5/3-11-1, Mr. Reed is eligible for medical furlough at his mother’s home. Mr. Reed is a member of Subclasses 1 and 2.
96. Amber Watters (Y39454) is 30 years old and is housed at Logan Correctional Center in Lincoln, Illinois. Ms. Watters has neurological complications from a broken back she suffered prior to her incarceration in 2019. Prior to her incarceration, Ms. Watters was the
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primary caretaker for her three minor children. She is serving two three-year sentences for low level drug offenses out of Livingston County; a Class 4 sentence for possession of heroin, and a Class 2 sentence for possession with the intent to distribute a small amount of heroin. Ms. Watters is scheduled to be released on May 1, 2020, and is eligible under 730 ILCS 5/5-8A-3(e) to transfer to home detention to her mother’s home. Ms. Watters is a member of Subclass 4.
97. Tewkunzi Green (R84568) is 38 years old and is housed at Logan Correctional Center in Lincoln, Illinois. She has asthma and severe hypertension for which she takes multiple medications. In January 2019, she fainted related to hypertension and was held in the cardiology unit of an off-site hospital for several days. At Logan, Ms. Green shares a room with three other women. Ms. Green has a pending commutation petition, which was filed by the January 23, 2020, filing deadline; her hearing date of April 7, 2020 was postponed and she is now being scheduled for a non-public hearing. She is also eligible for medical furlough under 730 ILCS 5/3-11-1. Ms. Green has a stable housing plan in that her mother, who owns her own home in Peoria, Illinois, where she also cares for Tewkunzi’s 13-year-old son, is willing and able to receive Ms. Green at any time. Ms. Green is a member of Subclass 1.
98. Danny Labosette (B23629) is currently housed at Robinson Correctional Center in Robinson, Illinois. Mr. Labosette is 56 years old and is a double amputee; his left leg has been amputated above the knee, and his right foot has been amputated. Mr. Labosette uses a wheelchair. Mr. Labosette also has untreated Hepatitis C. Mr. Labosette is housed in the Transitions Unit, a treatment facility within Robinson Correctional Cell. Social distancing is impossible for Mr. Labosette—he resides in a dorm with roughly 20 other men. He sleeps in the bottom bunk of a bunk bed, which is 3 feet away from the neighboring beds. Mr. Labosette has less than six months remaining on his sentence, and is eligible under 730 ILCS 5/5-8A-3(d) to be
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transferred to home detention at his mother’s home in Florida, which has already been modified to accommodate his disabilities. Mr. Labosette is a member of Subclasses 1, 2, and 3.
99. Carl Reed (R48993) is currently housed at Graham Correctional Center in Hillsboro, Illinois. He is 59 years old and he suffers from chronic kidney disease—requiring dialysis three days per week—diabetes, hypertension, and underlying neurological impairments. A doctor who is an expert in correctional health care has reviewed Mr. Reed’s medical records and recommends his immediate release for Mr. Reed’s health and safety. Mr. Reed has eight years left on his sentence, and he is eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. He has a pending petition for executive clemency, and he has a stable housing plan for his release: he can live with his sister in Chicago. Mr. Reed is a member of Subclasses 1 and 2.
100. Carl “Tay Tay” Tate (R12529) is a 40-year-old transgender woman diagnosed with Gender Dysphoria, who is housed at Danville Correctional Center. Ms. Tate has almost six years left of her sentence to serve. Ms. Tate lives with hypertension, for which she takes medication. Ms. Tate also lives with severe anxiety, and the COVID-19 outbreak has only increased her anxiety. She shares a small cell with one other person. Even with current limits on the number of people in the unit who are allowed out of their cells to use the communal dayroom, Ms. Tate estimates that around 24 people may be in the dayroom at a time. She estimates that around 75 people may be in the yard. Ms. Tate also works as a laundry porter, which places her in frequent contact with other prisoners and staff. She has asked for gloves to use, and has been denied. She has also asked for more cleaning supplies to clean the dayroom, including the phones, and has been denied. It is impossible for Ms. Tate to practice social distancing in her living situation. Ms. Tate has a pending clemency petition—which has the support of 40 organizations across the state—and her hearing date of April 7, 2020 was
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postponed and is being rescheduled. Ms. Tate has a stable housing plan in place for when she is released: she will live with her sister who resides in Lansing, Illinois. Ms. Tate is a member of Subclass 1.
101. Patrice Daniels (B70662) is 45 years old, serving a life sentence and not eligible for release. He is incarcerated at Joliet Treatment Center. Although this is one of the few facilities that has single occupant cells, he still shares a shower and dayroom with the other residents of this housing unit. Even with current limits on the number of people in the unit who are allowed out of their cells to use the communal dayroom, up to 8 people may be in the dayroom at a time. Mr. Daniels also works as a dietary aide, which places him in frequent contact with other prisoners and staff from outside of his housing unit each day. Mr. Daniels estimates that even with in-unit meal delivery, each person’s meal is handled by approximately 6-8 other people between preparation and delivery. Mr. Daniels describes feeling “like a sitting duck” waiting for the coronavirus to strike. Mr. Daniels is a member of the Class.
102. Anthony Rodesky (R47057) is currently housed at Pontiac Correctional Center in Pontiac, Illinois. He is 49 years old and has diabetes and other chronic health conditions, and in 2015 he had a below-knee amputation. Mr. Rodesky is a New Jersey prisoner who is in Illinois custody pursuant to an interstate compact agreement between New Jersey and Illinois and he is not eligible for release. Mr. Rodesky has ongoing medical needs, and he must interact with Pontiac health care staff at least twice daily, in order to receive his insulin shots. He also must stand next to other prisoners when he leaves his cell to obtain his insulin shots. Mr. Rodesky is deeply fearful of contracting COVID-19 on account of his pre-existing medical vulnerabilities. Even if Mr. Rodesky is not exposed to COVID-19, an outbreak at Pontiac would drain medical
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resources at Pontiac that he and other prisoners with chronic health conditions rely on for every day survival. Mr. Rodesky is a member of the Class.
CLASS ACTION ALLEGATIONS 103. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual named Plaintiff 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 an IDOC prison during the duration of the COVID-19 pandemic. Plaintiffs’ request for release from physical custody is limited to the following six subclasses:
a) Subclass 1: People in custody who have serious 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, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
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b) Subclass 2: People in custody who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
c) Subclass 3: People in custody who are 55 years of age and older with less than one year remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(d).
d) Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e).
e) Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c).
f) Subclass 6: People in custody who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Adm. Code 107.210.
104. A class action is the only practicable means by which the individual named Plaintiffs and the class members can challenge the Defendants’ unconstitutional actions. Many members of the class are without the means to retain an attorney to represent them in a civil rights lawsuit.
105. The class and subclasses are so numerous that joinder of all members is impractical. The number of people in custody exceeds 36,000 on any given day, and each subclass contains hundreds, and sometimes thousands, of people. Plaintiffs estimate that Subclass 1 contains approximately 12,000 who live with one or more medical vulnerability based on an existing medical condition. Subclass 2 contains 4,807 people who are medically vulnerable to COVID-19 because they are 55 and older. Subclass 3 contains 700 people who are
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over age 55 and have less than one year left on their sentence and eligible for transfer to home detention/electronic monitoring. Subclass 4 contains over 9,000 people who are currently in custody for Class 2, 3, or 4 offenses and eligible for transfer to home detention/electronic monitoring. Subclass 5 contains 2,401 people who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for transfer to home detention/electronic monitoring. Subclass 6 contains 5,308 people who are eligible to be released in six months.
106. There are questions of law and fact common to all class members and the subclass, including: (1) does COVID-19 present a substantial risk of harm to people in the custody of the Illinois Department of Corrections; (2) do the Defendants have available to them measures that could reduce the number of people living in IDOC prisons, including those who are especially vulnerable to COVID-19; and (3) have the Defendants failed to act reasonably to mitigate the spread of COVID-19 and protect those in custody who are vulnerable by not fully utilizing medical furlough, home detention, and other mechanisms to reduce the prison population?
107. The claims of the named Plaintiffs are typical of those of the class as a whole. That typicality stems from their claim that Defendants have placed them at significant risk of harm by failing to take appropriate steps to address the risk of COVID-19 throughout the IDOC. Every single person in IDOC custody faces the same risk of contracting COVID-19 if the IDOC fails to take meaningful action to reduce the in-custody population. While members of Subclasses 1-2 have an increased risk of death as result of the threat of COVID-19 and Subclasses 3-5 suffer due process violations, the overarching nature of the threat of COVID-19 to every person confined in IDOC custody is sufficient to satisfy typicality.
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108. 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.
109. Defendants have refused 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 Deliberate Indifference to the Serious Risk of Harm Posed by COVID-19
(Alleged by all Plaintiffs on Behalf of Themselves and the Class Against all Defendants) 110. Plaintiffs repeat and re-allege the proceeding paragraphs as if fully set forth in this
Count. 111. Plaintiffs and the classes they represent have been deprived and continue to be
deprived by the Defendants of their rights under the Eighth Amendment to reasonably safe living conditions. Specifically, Defendants are aware of the substantial risk of harm that COVID-19 poses to all individuals, and are further aware of the particular risks of severe illness and possible death that Plaintiffs face as a result of the inherently congregate settings in Defendants’ correctional facilities. Despite this knowledge, Defendants have failed to take reasonable measures to transfer eligible people in IDOC’s physical custody to medical furlough or home detention, and/or release them from IDOC custody.
112. As a result of the Defendants’ actions and inactions, class members face a substantial risk of contracting COVID-19 and sustaining a serious illness that could lead to death. This harm manifests in two ways: 1) members of the subclasses who are eligible for release are unnecessarily exposed to an exponentially increased risk of contracting COVID-19 and suffering a serious illness that could lead to death for so long as they remain in IDOC’s
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physical custody; and 2) class members who are likely to remain in IDOC custody because they lack a statutory pathway to release are exposed to an exponentially increased risk of contracting COVID-19 and suffering a serious illness that could lead to death because IDOC has insufficient medical and sanitation resources to both prevent the spread of COVID-19 and to adequately treat those who contract the virus.
113. The Defendants’ failures to take appropriate steps to curb the substantial threat posed by COVID-19 to each person in IDOC custody, as described more fully above, constitutes deliberate indifference to Plaintiffs’ rights to be free from cruel and unusual punishment. Defendants know of and are disregarding a substantial risk of serious illness and/or death people face as a result of the pandemic.
114. 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 42 U.S.C. § 1983 Right to Due Process Under the Fourteenth Amendment (Alleged by Plaintiffs Money, Richard, Watters, and Labosette on Behalf of Themselves
and Subclasses 3, 4, and 5 Against All Defendants) 115. Plaintiffs repeat and re-allege the proceeding paragraphs as if fully set forth in this Count. 116. Plaintiffs and the subclasses they represent are all eligible for transfer from IDOC physical custody under various state statutes. In the midst of this global pandemic, the Defendants have failed to establish a system-wide efficient process that would, with all deliberate speed, evaluate every individual who is eligible for transfer from IDOC physical custody to determine if that person can be transferred without compromising public safety. As a result of the Defendants’ failure to establish such a process, members of these subclasses are prohibited from seeking their transfer and as a result they are forced to be exposed to the threat
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of serious illness or death posed by COVID-19 in IDOC prisons, in violation of their procedural and substantive due process rights.
117. 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.
118. 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 III Americans with Disabilities Act (“ADA”) (Alleged by Plaintiffs Money, Richard, Gerald Reed, Green, Labosette, Carl Reed, and Tate on Behalf of Themselves and Subclass 1 Against Defendant Jeffreys) 119. Plaintiffs repeat and re-allege the proceeding paragraphs as if fully set forth in this Count. 120. Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. 121. The Illinois Department of Corrections is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131. 122. Members of Subclass 1 are qualified individuals with disabilities within the meaning of the ADA in that they have physical and/or mental impairments that substantially limit one or more major life activities. 42 U.S.C. § 12102(2). Major life activities of class members that are limited include respiratory and other functions of the body such as the immune system, circulatory system, endocrine (to regulate blood sugar), kidney (the ability to cleanse and eliminate body waste), normal cell growth, digestive, bowel, bladder, neurological, brain,
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circulatory, as well as limitations in breathing, eating, sleeping, thinking, concentrating, standing, and walking, among others.
123. Defendant Jeffreys is violating Title II of the ADA by holding subclass members in unduly dangerous conditions that place them at a disproportionate risk of medical complication and death because of their disability.
124. Defendant Jeffreys is violating Title II of the ADA by failing to provide subclass members the reasonable accommodations that are needed and available to protect their lives by allowing them to participate and receive the benefits of Defendant’s programs, including medical furlough, release and/or transfer to home detention to allow subclass members to quarantine more safely in their homes.
125. Plaintiffs seek injunctive and declaratory relief against all Defendants to prevent the continued violation of the rights of Plaintiffs and the class they represent.
REQUEST FOR RELIEF Wherefore, Plaintiffs on behalf of themselves and the putative class they seek to represent, request that this Court enter judgment in their favor and against Defendants J.B. Pritzker and Rob Jeffreys and order the following relief: a) Immediate medical furlough for members of Subclass 1: People in custody who have serious 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
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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, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1; b) Immediate medical furlough to members of Subclass 2: People in custody who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. c) Immediate transfer to home detention of members of Subclass 3: People in custody who are 55 years of age and older with less than one year remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(d). d) Immediate transfer to home detention of members of Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e). e) Immediate transfer to home detention of members of Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c). f) An immediate aware of 180 days of sentencing credit to members of Subclass 6: People in custody who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Adm. Code 107.210. g) Appoint a Special Masters to assist the IDOC identify people in its custody who are eligible for transfer or release.
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h) Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and the Americans with Disabilities Act.
i) Grant such other relief as this Court deems just and proper.

Dated: April 2, 2020

Respectfully submitted,
/s/ Vanessa del Valle One of the Attorneys for the Plaintiffs

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 sheila.bedi@law.northwestern.edu LukeFernbach2021@nlaw.northwestern.edu EmilyGrant2021@nlaw.northwestern.edu ttollner@nlaw.northwestern.edu *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Just Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932 vanessa.delvalle@law.northwestern.edu
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465 jennifer@illinoisprisonproject.org
Counsel for Plaintiffs

Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411 alan@uplcchicago.org liz@uplcchicago.org
Sarah Grady Loevy & Loevy 311 North Aberdeen St., 3rd Floor Chicago, IL 60607 (312) 243-5900 sarah@loevy.com
Amanda Antholt Equip for Equality 20 N. Michigan Ave., Suite 300 Chicago, IL 60602 amanda@equipforequality.org samantha@equipforequality.org

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EXHIBIT 1

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Affidavit of Robert B. Greifinger, MD
I, Robert B. Greifinger, certify as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and coauthor of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am very familiar with correctional facilities, having toured and evaluated the medical care in several hundred correctional facilities across the nation. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 465,915 people have been diagnosed with COVID-19 around the world and 21,031 have died.2 In the United States, at least 85,724 people have been diagnosed and at least 1,275 people have died thus far.3 These numbers are likely a severe underestimate, due to the lack of availability of testing.
4. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19 and there is unlikely to be a vaccine for at least a year. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to mitigate COVID-19 transmission is to use scrupulous hand hygiene and social distancing.
5. When infected, people in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. The U.S. Centers for Disease Control and Prevention (CDC) recently reported that the risk of
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed March 27, 2020. 3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed March 27, 2020.

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serious disease and death among those with COVID-19 increases with age, with 78% of reported deaths occurring in people over the age of 65. More than 50% of COVID19 related intensive care admissions and more 80% of COVID-19 deaths were among people 65 years old or older.4 Early reports from China show that nearly half of those with the coronavirus had comorbidities, or underlying health conditions.
6. In the United States, younger adults with COVID-19 have been severely affected by the disease as well. While people under the age of 20 have largely been protected from severe effects of the coronavirus, 55% of COVID-19 hospitalizations and 20% of deaths were from people between the ages of 20 and 64.5
7. Mortality is high among those with COVID-19 who become severely affected. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that are in very short supply.
8. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that increase the risk of serious COVID-19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, and neurological and neurologic and neurodevelopmental conditions.
9. A primary concern of medical and public health experts and public officials is the effect that the pandemic is having and will have on health systems. Because severe COVID-19 cases require extended hospitalization and intensive medical care, a significant number of COVID-19 cases can quickly overwhelm a health system. This is true in urban areas but is particularly true in rural areas where health care facilities have far more limited capacity to respond to an increase in patients who need hospitalization and intensive care.
10. The only way to mitigate the rapid spread of COVID-19 is to use scrupulous hand hygiene and social distancing, self-quarantine for individuals who may have been exposed, and isolation at a home or care facility for those who have been infected. The recommended hand hygiene measures are frequent handwashing with soap and water, and the use of alcohol-based sanitizers when handwashing is unavailable. Surfaces such as doorknobs and light switches which have a high degree of human contact should be cleaned and disinfected regularly with bleach.
11. Recognizing the urgency and severity of the pandemic, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of a risk mitigation strategy.
12. Illinois has been hit hard by COVID, with at least 2,538 cases and at least 26 deaths
4 See https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w, accessed March 22, 2020. 5 Id.

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reported as of March 26, 2020.6 The cases of COVID-19 have spanned the State, including in central and southern Illinois. As a result, Illinois Governor J.B. Pritzker has issued an order to “stay at home” for the entire State.7
13. COVID-19 has now reached the correctional facilities in Illinois, with cases reported in the Illinois Department of Corrections and the Cook County Jail. 8 In New York, we have seen the rate of infection in city jails far outpace the rate of infection of the general population, by seven.9 The same can be expected in Illinois facilities.
14. The conditions of congregate settings, such as prisons, poses a heightened public health risk for the spread of COVID-19.
15. Correctional facilities are enclosed environments, much like the cruise ships and nursing homes that were the sites of the largest concentrated outbreaks of COVID-19 initially. Correctional facilities have even greater risk of transmission of infection because of a) crowding for prolonged periods of time; b) the high proportion of vulnerable people detained; and c) often scant medical care resources.
16. In prisons, people live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. In most congregate settings, it is impossible for those detained to maintain a six-foot distance from others or to avoid groups.
17. Food preparation and food service is communal, with little opportunity for surface disinfection. Toilets, sinks, and showers are shared, without disinfection between use.
18. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
19. Many correctional facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. Even where they do have formal linkages with local health departments or hospitals, correctional facilities are often in under-resourced areas where the local health department or hospital would quickly become overwhelmed in the face of an infectious disease outbreak.
20. Prisons are ill-equipped to diagnose and manage the spread of a disease like COVID-19. In the event of exposure in a prison, all individuals should be tested. Those who test positive should be isolated. Health care providers should have access to personal
6 See http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus, accessed March 27, 2020. 7 https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-shelter-in-place-lockdown-order-20200320teedakbfw5gvdgmnaxlel54hau-story.html 8 See https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx, accessed March 26, 2020; https://chicago.suntimes.com/coronavirus/2020/3/25/21193871/cook-county-jail-coronavirus-covid-19-cases, March 25, 2020. 9 https://www.nydailynews.com/coronavirus/ny-coronavirus-nyc-jails-rikers-island-legal-aid-20200325o5du2jczc5agrhj42y5tk4gfmi-story.html (March 25, 2020).

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protective equipment, including masks. Access to resources for testing, personal protective equipment, and necessary supplies are often inadequate in prisons. Those infected and symptomatic should be isolated in airborne negative pressure rooms, which rarely exist in prisons. Where such negative pressure rooms do exist, there are rarely enough to be available in the event of an outbreak.
21. There is a nationwide shortage of tests for COVID-19. It is my understanding that Illinois correctional facilities do not have sufficient access to these tests. As people may be asymptomatic or have no fever, COVID-19 may be spread in prisons and infect many prisoners and staff without warning.
22. The heightened risk of infectious disease transmission in prisons threatens the health of prisoners, staff and the broader population. Releasing vulnerable patients reduces the risk of widespread intramural outbreak, and thereby reduces the risk to staff who return to their homes on a daily basis.
23. Indeed, I monitor a correctional facility for the Federal Court that has already had an outbreak of COVID-19 among vulnerable people living on a medical housing unit. A Nurse Practitioner, four correctional officers, and two inmates have confirmed COVID-19. Several other inmates have pending tests. Three nurses are hospitalized with COVID-19. As such, I have firsthand knowledge of the serious effects of this virus in correctional facilities and the lack of preparedness in these institutions. Correctional facilities are not equipped to manage and treat an onslaught of this disease. It is a dangerous and rapidly evolving situation.
24. Risk mitigation is the only viable public health strategy available to limit transmission of infection, morbidity and mortality in prisons, and to decrease the likely public health impact outside of the prisons. Even with the best-laid plans to address the spread of COVID-19 in prisons, the release of individuals, prioritizing the most medically vulnerable individuals, is a key part of a risk mitigation strategy. In my opinion, the most urgent public health need is to release people from prison, prioritizing those who are most vulnerable, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.
25. Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility.
26. Combined, this has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, disinfecting supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff, which will likely be reduced by illness, such that they can continue to ensure the safety of detainees.
27. The prison is a microcosm of the broader community. Social distancing and scrupulous hygiene and sanitation are required to avoid an outbreak. If there is inadequate social

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distancing, hygiene and sanitation, there will almost certainly be infection and an outbreak. In the event of an outbreak, those who are medically vulnerable will be most immediately at risk, but eventually the effect will be felt by all as the health care infrastructure will be inadequate to respond to the needs. 28. For an airborne disease, the most effective mitigation strategy to limit the spread of the virus is to reduce crowding, as this increases the opportunity for social distancing. In a prison, even if everyone is isolated in a single cell, there is still an increased risk of transmission among prisoners and staff because the institutional setting requires the delivery of food, cleaning supplies, documents, and other items. 29. Isolation, e.g., segregation or solitary confinement, is not an acceptable mitigation strategy. People who are isolated are monitored less frequently, due to decreased visualization. If they develop COVID-19 symptoms, or their symptoms escalate, they may not be able to get the medical attention they desperately need in a timely fashion. It also makes it more likely that there will be increases in suicide attempts or self-harm, giving rise to more medical problems in the midst of a pandemic. Isolation also increases the amount of physical contact between staff and prisoners—in the form of increased handcuffing, escorting to and from the showers, and increased use of force due to the increased psychological stress of isolation. My expert opinion is that the use of isolation or lockdown is not a medically appropriate method for abating the substantial risks of COVID-19. Under penalties as provided by law pursuant to § 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Executed this 27th day in March 2020 in New York City, New York.
Robert B. Greifinger, M.D.

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EXHIBIT 2

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Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
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7. The risk posed by infectious diseases 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. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors 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. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
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access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large 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. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. 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. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. 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.2 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 H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 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.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 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. 3 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-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. 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, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
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place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. 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.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may 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.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
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31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
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COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

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

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

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EXHIBIT 3

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EXHIBIT 4

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Declaration for Persons in Detention and Detention Staff COVID-19
Chris Beyrer, MD, MPH Professor of Epidemiology Johns Hopkins Bloomberg School of Public Health Baltimore, MD
I, Chris Beyrer, declare as follows:
1. I am a professor of Epidemiology, International Health, and Medicine at the Johns Hopkins Bloomberg School of Public Health, where I regularly teach courses in the epidemiology of infectious diseases. This coming semester, I am teaching a course on emerging infections. I am a member of the National Academy of Medicine, a former President of the International AIDS Society, and a past winner of the Lowell E. Bellin Award for Excellence in Preventive Medicine and Community Health. I have been active in infectious diseases Epidemiology since completing my training in Preventive Medicine and Public Health at Johns Hopkins in 1992.
2. I am currently actively at work on the COVID-19 pandemic in the United States. Among other activities I am the Director of the Center for Public Health and Human Rights at Johns Hopkins, which is active in disease prevention and health promotion among vulnerable populations, including prisoners and detainees, in the US, Africa, Asia, and Latin America.
The nature of COVID-19
3. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease, is a global pandemic and has been termed a global health emergency by the WHO. Cases first began appearing sometime between December 1, 2019 and December 31, 2019 in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City.
4. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus which caused the 2002-2003 SARS epidemic.
5. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.3 to 3.5%, which is 5-35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are selflimited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
6. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate is higher in men, and varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardio-vascular disease, respiratory disease, diabetes, and immune compromise.
7. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS) which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical

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ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.
8. COVID-19 is widespread. Since it first appeared in Hubei Province, China, in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents, heavily affected countries include Italy, Spain, Iran, South Korea, and the US, now the world’s most affected country. As of today, March 29th, 2020, there have been 713,171 confirmed human cases globally, 33,597 known deaths, and some 149,000 persons have recovered from the infection. The pandemic has been termed a global health emergency by the WHO. It is not contained and cases are growing exponentially.
9. SARS-nCoV-2 is now known to be fully adapted to human to human spread. This is almost certainly a new human infection, which also means that there is no pre-existing or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
10. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again, is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20-30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2-14 days, which is why isolation is generally limited to 14 days.
The risks of COVID-19 in detention facilities
11. COVID-19 poses a serious risk to inmates and workers in detention facilities. Detention Facilities, including jails, prisons, and other closed settings, have long been known to be associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.
12. The severe epidemic of Tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of Tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities from which inmates derive.
13. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as 6-foot distancing and proper decontamination of surfaces is virtually impossible. For example, several deaths were reported in the US in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May, 2019.
14. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as overcrowding, population density in close confinement, insufficient ventilation, shared toilet, shower, and eating environments and limits on hygiene and personal protective equipment such as masks and gloves in some facilities. Limits on soap (copays are common) and hand sanitizer, since it can contain alcohol, are also risks for spread.
15. Additionally, the high rate of turnover and population mixing of staff and detainees increases likelihoods of exposure. This has led to prison outbreaks of COVID-19 in

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multiple detention facilities in China, associated with introduction into facilities by staff. The current outbreak in the detention facility of Riker’s Island in New York City is a example—and in the first days of that outbreak the majority of cases were among prison staff, not inmates. 16. In addition to the nature of the prison environment, prison and jail populations are also at additional risk, due to high rates of chronic health conditions, substance use, mental health issues, and, particularly in prisons, aging and chronically ill populations who may be vulnerable to more severe illnesses after infection, and to death from COVID-19 disease. 17. While every effort should be made to reduce exposure in detention facilities, this may be extremely difficult to achieve and sustain. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible. 18. Pre-trial detention should be considered only in genuine cases of security concerns. Persons held for non-payment of fees and fines, or because of insufficient funds to pay bail, should be prioritized for release. Immigrants awaiting decisions on their removal cases who are not a flight risk can be monitored in the community and should be released from immigration detention centers. Older inmates and those with chronic conditions predisposing to severe COVID-19 disease (heart disease, lung disease, diabetes, immune-compromise) should be considered for release. 19. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are highly likely. Releasing as many inmates as possible is important to protect the health of inmates, the health of correctional facility staff, the health of health care workers at jails and other detention facilities, and the health of the community as a whole. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 16th day of March, 2020.
_____________________ Professor Chris Beyrer

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References
Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016.
Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85.
Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447.
Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344.
Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)306638. doi: 10.1016/S0140-6736(16)30663-8
Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151

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EXHIBIT 5

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I, Dan Pacholke, declare as follows: 1. I am over the age of 18, have personal knowledge of the facts set forth herein, and, if called as a witness, I could and would testify competently as set forth below. 2. I have more than 37 years of experience, training, and education in the field of adult institutional corrections. This experience includes over three decades as an employee of the Washington State Department of Corrections (WDOC), beginning as a correctional officer and retiring as Secretary. In that time, I served as Chief of Emergency Operations; Superintendent of three correctional facilities (Cedar Creek Corrections Center, Stafford Creek Corrections Center, and Monroe Correctional Complex); Deputy Director; Director of Prisons; and Deputy Secretary. In October 2015, Governor Inslee appointed me to serve as Secretary of Corrections, a position I held until March 2016. As a WDOC employee in administration and leadership positions, I was one of the individuals responsible for the development and implementation of correctional policies, practices, and procedures. 3. My experience also includes work as a consultant for the National Institute of Corrections, a federal agency with a legislative mandate to provide specialized services to corrections from a national perspective, and as a Senior Research Scholar with New York University Marron Institute of Urban Management. Currently, I am a principal at Dan Pacholke Consulting, LLC and frequently consult with and collaborate with correctional systems, researchers, and policymakers on strategies to create safer correctional institutions. Attached as Exhibit 1 is a copy of my curriculum vitae. 4. In my capacity as a correctional practices consultant in 2016--17 I visited and toured several prisons operated by the Illinois Department of Corrections (IDOC) including Pinckneyville, Stateville, Hill, East Moline and Pontiac.
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5. As a result of my many years of experience in corrections, I have extensive knowledge of correctional policies and practices relating to the operation of prisons, including the standards regarding when and how individuals are released from custody, and, how and when corrections can exercise its discretion to take immediate affirmative actions to address issues impacting the health and safety of people in custody into account.
6. In my opinion, COVID-19 represents a serious and unprecedented risk to the health and safety of people in IDOC custody and IDOC staff. This risk makes it imperative that IDOC immediately take steps to proactively respond to the virus to protect those individuals. Among those steps is considering how IDOC can exercise its authority and discretion (along with any other body which has the authority or discretion to order release, such as the Prisoner Review Board, using its power to grant parole or to decline to revoke parole, and the Governor, using his power of Executive Clemency) to reduce the prison population. This includes awarding good time credits, transferring people to home detention, and authorizing medical furloughs. All of these and any other options should be fully utilized to allow individuals to maintain social distancing and have better access to testing and treatment. This will also help mitigate the impact of staff shortages and lessens the burden on prison medical services. Reducing the population will improve the health and safety of people in custody who are currently symptomatic and/or test positive as well as individuals who have been exposed to COVID-19 but are not yet showing symptoms and have not yet been tested. As in the community outside IDOC facilities, the numbers of individuals in both categories will increase exponentially.
7. Shortly after I was appointed Secretary of WDOC, I was faced with a crisis that, though different from the current COVID-19 emergency, was similar in that it required immediate and decisive action. In December of 2015, it was brought to my attention that WDOC
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had, for thirteen years, miscalculated certain sentences, resulting in approximately 3,600 inmates being released from prison an average of approximately 60 days early. We employed a number of strategies to resolve this error, one of which was the use of the furlough statute. This was used when it was determined that an offender released early had: (1) performed and continued to perform appropriately on community supervision; (2) had an appropriate residence; and (3) had not absconded while on supervision or committed additional felony offenses. If these conditions were met, I authorized a furlough for 30 days, completed a follow-up check-in, and subsequently extended the furlough for an additional 30 days. This helped the impacted individuals maintain their job, living arrangement, and family responsibilities. Illinois appears to have a similar mechanism allowing various classes of prisoners to be transferred to home confinement.
8. If faced with the current Covid-19 crisis, I believe that immediate action is needed to reduce the prison population for the benefit of inmates and staff. I would determine who, including those still housed in prisons, and those on work release, is within the categories that the IDOC or other body has the legal authority to release or transfer, and establish objective criteria, such as having an appropriate release address, to establish who could safely be released or transferred to a non-prison setting, even though many might still remain in IDOC custody. The criteria adopted should be designed to greatly increase the number of releases, to significantly reduce the prison population.
9. The timely implementation of measures to reduce the prison population will decrease the density and slow the spread of this virus in our state prisons and work releases. It will allow IDOC the space it needs to accomplish more effective social distancing, allow more effective quarantining of impacted individuals, and greatly reduce the burden on medical staff and local hospitals. In many cases, this will return those individuals who would otherwise be
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Case: 1:20-cv-02093 Document #: 2-4 Filed: 04/02/20 Page 5 of 11 PageID #:82 released within the next year to their homes now, where they can more effectively self-isolate with their families, provide child and elder care, and receive testing and treatment as needed.
10. The staff and the people who live in prisons and work releases are placed at greater risk for the spread of diseases. It is imperative that IDOC do everything in its power to “flatten the curve” in these facilities during this crisis to protect the health and safety of its staff and the people in its custody. The best way to do this is to quickly implement strategies to reduce the population, in a way that supports public health and safety, to reduce the spread of this virus and maintain increasingly limited staff and medical resources.
I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
Dan Pacholke April 1, 2020
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Attachment 1
DAN PACHOLKE
PROFILE
Served the Washington State Department of Corrections for 33 years, starting as a Correctional Officer and retiring as Secretary. Leader in segregation reform and violence reduction in prisons. Extensive experience in program development and implementation, facility management, and marshaling and allocating resources. Proven ability to make change. Led efforts resulting in a 30% reduction in violence and a 52% reduction in use of segregation in Washington State Prisons. Co-founder of Sustainability in Prisons Project. Champion of humanity, hope and legitimacy in corrections.
EMPLOYMENT HISTORY
Principal, Dan Pacholke Consulting, LLC. 2018 to Present Offering a full range of consulting services in the field of corrections.
New York University, Litmus at Marron Institute of Urban Management Associate Director 2016-2017
Collaborate with researchers and practitioners to develop alternatives to segregation and transform corrections management. Advance stakeholder-led research and innovation by soliciting, supporting, and disseminating the best new strategies to create safer, more rehabilitative corrections environments.
Washington State Department of Corrections Secretary 2015-2016
Governor appointee providing executive oversight of the agency with a yearly operating budget of 850 million and 8,200 full time employees. Reorganized agency to allow for greater emphasis on effective reentry. Led department through response and recovery from a crisis resulting from the discovery of a sentencing calculation error that had occurred for over 13 years.
Deputy Secretary 2014-2015 Oversight over operations divisions: Offender Change; Correctional Industries; Community Corrections (16 Work Releases and 150 field offices); Prisons (15 facilities); and Health Services. These combined operations had a yearly operating budget of 700 million and 7,166 full time employees. Emphasis on core correctional operations, violence reduction, and performance management leadership to affect positive and sustainable system wide change.
Director, Prisons Division 2011-2014 Oversight over 15 institutions and contract relationships with jails and out of state institutions incarcerating approximately 18,000 offenders. Also responsible for providing emergency response and readiness oversight to all facilities and field offices of all divisions. Advanced multi-faceted violence reduction strategy to include the development and implementation of the “Operation Ceasefire” group violence reduction strategy for application in close custody units in prisons. Expanded Sustainability in Prisons Project programs to all prison facilities. Implemented classroom-setting congregant programming in intensive management units.
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Attachment 1
Deputy Director, Prisons Division 2008-2011 Administrator over 6 major facility prisons, multi-custody level for adult male offenders with a biennial budget of 290 million. Provided leadership and appointing authority decision making to six facility Superintendents. Through Great Recession implemented staffing reductions, offender movement alterations and cost savings initiatives while maintaining safety and security. Represented the Department in legal issues, labor relations, media, staff discipline hearings, union relations and bargaining. Oversaw statewide operations of Emergency Preparedness and Response, Intelligence & Investigations, Intensive Management Units, Offender Grievance Program, Offender Disciplinary Program, Food Service, Sustainability and Close Custody Operations. Implemented statewide system of security advisory councils and security forums to improve staff safety.
Monroe Correctional Complex Interim Superintendent 2008
Led a 2,486-bed, multi-custody facility for adult male offenders.
Stafford Creek Corrections Center Superintendent 2007-2008
Led a 2,000-bed, multi-custody facility for adult male offenders with a biennial budget of 39 million. Implemented Sustainability in Prisons Project initiatives to include large scale composting to include zero-waste garbage sorting. Initiated first dog training programs for male offenders.
Cedar Creek Corrections Center Superintendent 2003-2007
Led a 400-bed, minimum-security adult male correctional facility, with a biennial budget of 7.3 million. Directed operational and related program activities to include security and custody programs, medical services, plant maintenance, education, and food service. Co-founded the Sustainability in Prisons Project with Nalini Nadkarni, PhD.
Monroe Correctional Complex Special Assignment Deputy Superintendent 2002
Formulated new strategic direction in order to enhance operations and security at the Complex, which consists of four separate units and houses approximately 2,300 adult male felons. Managed unit operations and security. Supervised the Intelligence Investigative Unit and Offender Grievance System. Developed and implemented capital construction initiatives at the Special Offender Unit and the Washington Reformatory Unit to enhance security of these Units.
Headquarters Performance System Administrator 1999-2002
Led the development and implementation shift from staff training department to an organizational performance system. Administered staff performance academies, supervised five regional teams, four Program Managers and provided leadership for policy development to support this department wide program. Administered the Department’s Emergency Response Plan, Emergency Operations, Officer Safety Program and Firearms Training Unit.
Headquarters Emergency Response Manager 1995-1999
Developed and implemented statewide emergency response system. Directed the
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Attachment 1
development of departmental policy, emergency response team academies and response protocols. Managed emergencies and security events. Directed Critical Incident Review Teams in the post incident analysis of critical incidents department wide. Led development of security plans for the management of high-risk operations to include 400 offenders out of state, Y2K, and execution security.
Clallam Bay Corrections Center Correctional Captain 1989-1995
Responsible for the security management of a maximum, close, and medium custody male facility. Oversaw facility mission changes including: close custody conversion; implementation of blind feeding; facility double bunking; opening of an intensive management unit; opening of first direct supervision unit; and developed the facility’s Emergency Response Plan.
Clallam Bay Corrections Center Correctional Lieutenant 1986 -1989
Washington Corrections Center Correctional Sergeant 1985-1986
McNeil Island Corrections Center Correctional Officer 1982-1985
PUBLICATIONS Useem, Bert, Dan Pacholke, and Sandy Felkey Mullins. "Case Study–The Making of an Institutional Crisis: The Mass Release of Inmates by a Correctional Agency." Journal of Contingencies and Crisis Management (2016) Pacholke, Dan (2016, July 27). Change is relative to where you begin. Vera Institute of Justice. Think Justice Blog. https://www.vera.org/blog/addressing-the-overuse-of-segregation-in-u-sprisons-and-jails/change-is-relative-to-where-you-begin
Pacholke, Dan and Sandy Felkey Mullins. More Than Emptying Beds: A Systems Approach to Segregation Reform. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, 2016. NCJ 249858.
Pacholke, D. (2014, March). Dan Pacholke: How prisons can help inmates lead meaningful lives [Video file]. Retrieved from https://www.ted.com/talks/dan_pacholke_how_prisons_can_help_inmates_live_meaningful_lives?la nguage=en
Young, C., Dan Pacholke, Devon Schrum, and Philip Young. Keeping Prisons Safe: Transforming the Corrections Workplace. 2014.
Aubrey, D., LeRoy, C. J., Nadkarni, N., Pacholke, D. J., & Bush, K. Rearing endangered butterflies in prison: Incarcerated women as collaborating conservation partners. 2012.
AWARDS
Olympia Rotary Club, Environmental Protection Award, 2013 Governor’s Distinguished Managers Award, 2012 Secretary of State, Extra Mile Award, 2007
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Governor’s Sustaining Leadership Award, 2003 CONSULTING Sustainability in Prisons Project, Co-Director 2004-2015 Nebraska Department of Correctional Services 2015
With Bert Useem, PhD, provided system assessment following May 2015 disturbance at Tecumseh State Correctional Institution in which two inmates were killed. Identified underlying causal factors and provided recommendations. National Institute of Corrections 1998 to 2002 Provided training and consultation services to state, territory and federal correctional systems. Responsible for delivering of training to include: Management of Security, Entry Level Supervision, Emergency Preparedness Assessment, Disturbance Management and Basic Security. Defensive Technology Corporation Senior Instructor 1995 to 1998 Provided tactical and specialty munitions training to correctional and law enforcement personnel throughout the U.S. Security Auditing & Critical Incident Reviews Lead Auditor Completed security audits and critical incident fact finding reviews in facilities throughout the Washington State Department of Corrections and two correctional jurisdictions in other states, one of which involved multi-jurisdictional entities.
EDUCATION: The Evergreen State College, BA, Olympia, Washington
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Attachment 3
Career Highlights
• Reduced violence in Washington State prison system by over 30% while also reducing the number of people held in long-term administrative segregation by over 50%.
• Designed and implemented congregate group programming in the intensive management units (IMU’s). The programs offered included evidence based programs and other complimentary offerings. Today all IMU’s in Washington State prisons offer congregate programming.
• Designed and implemented the first prison Ceasefire model. This deterrencebased model reduced serious violent incidents (assault against staff, use of a weapon and multi on single man fights) by 50% and continues to be utilized in Washington State close custody (Level IV) prison to reduce serious violence.
• Co-authored a protocol for in-custody Swift, Certain and Fair sanctioning. This deterrence-based model offers a strategy for the reduction of low-level in-custody violations.
• Implemented the Correctional Officer Pre-Service training model at Clallam Bay Corrections Center. This 10-week program offered half-time course work and half-time OJT in order to certify newly hired correctional officers. This program was implemented state wide as the CORE Program, a six-week standardized training required of all staff that work in prisons.
• Served as a lead design team member on the creation and implementation of the Correctional Officer Achievement Program (COACH), a yearlong, on-the-job training program accredited by the WA State Board for Technical and Community Colleges.
• Led the design and development of a comprehensive agency-wide Emergency Response Plan and complimentary learning academies: Emergency Response Instructor (40 hrs.); Emergency Response Team (40 hrs.); Special Emergency Response Team (40 hrs.); Crisis Negotiator (40 hrs.); Joint Operations (24 hrs.); and the Designated Incident Management Team (multiple ICS certifications).
• Co-Authored, Keeping Prisons Safe, Transforming the Corrections Workplace and accompanying field guide which are used in CORE and Annual In-Service Training at WA DOC.
• Co-founder and past co-director of the Sustainability In Prisons Project; this program brings nature into prison and features science education. It is recognized internationally and features programs to restore endangered species e.g., Oregon Spotted Frog, Taylor Checker spot Butterfly, Indigenous Box Turtles and over fifty different rare and endangered native prairie plants. http://sustainabilityinprisons.org.
• Offered two TEDx events in prison. These events featured inmates, staff and volunteers as TEDx speakers.

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Attachment 3
• Implemented Dog retraining programs in all Washington State Prisons.

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EXHIBIT 6

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March 17, 2020 The Honorable J. B. Pritzker 207 State House Springfield, IL 62706 Re: Coronavirus in Illinois Prisons Dear Governor Pritzker:
The COVID-19 pandemic represents an unprecedented threat to men and women who are incarcerated in IDOC custody. These individuals are held in close quarters— several feet closer than the six-foot distance that you and the CDC have recommended for individuals not held in custody. They are simply not able to engage in the “social distancing” that public health officials have stressed is mandatory to combat the rate of illness. As a result, if any one of these individuals becomes infected with COVID-19, nearly everyone within the prison will face a dangerously high risk of becoming infected.
If and when (as is likely, given reports from countries like Italy who are experiencing our rate of infection just weeks ahead of the United States) IDOC prisons experience an outbreak, the prison’s health system will be overwhelmed. That, in turn, is likely to overwhelm local outside hospital systems where sick prisoners are referred, which will render them unable to provide lifesaving treatment to the population—both incarcerated and free—that need it.
We are thankful that at this point IDOC does not have any positive cases. To avoid contamination, in addition to the steps already announced by IDOC, it is imperative that you take action to ensure that every individual in IDOC custody today who can be released in a way that is consistent with public safety, is released.
This administration has taken the lead across the country in ensuring that the threat faced by the COVID-19 pandemic is taken seriously. In keeping with this administration’s initiative, we implore you to take the following immediate steps to protect the vulnerable individuals in IDOC custody, as well as the individuals who work there:

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1. Immediately order the release of individuals whose release dates are within 120 days. These individuals have already worked with prison staff and those outside to confirm that they will be returning to a confirmed home site, and have release plans.
2. Release all individuals in custody awaiting parole revocation hearings. People previously on supervised release who are in IDOC custody because of non-violent parole violations and new charges that are bail eligible, and especially people in custody because of technical violations, should be released immediately.
3. Prioritize release for any individuals whose release plans are pending host site approval. These individuals have a place to return, but are simply waiting for IDOC to approve. These people should be prioritized, and once approved, immediately released.
4. Order IDOC to stop taking people into custody for parole violations unless they present a clear and present danger of imminent physical harm, and rescind all parole warrants. As we know from the information set out by your administration and the CDC, introducing new people into the prison population will only exacerbate the likelihood of an outbreak within the prison. IDOC should immediately stop taking any individuals into custody for parole or MSR violations unless their actions present a clear and present danger of imminent physical harm, and should withdraw all parole-related warrants.
5. Release individuals with viable clemency petitions. Several individuals have viable clemency petitions that are awaiting decision by this administration; anyone whose petitions are viable should be released immediately.
6. Take all actions necessary to maximize good time credits. Under Illinois law, 730 ILCS 5/3-6-3, the IDOC Director “may award up to 180 days of earned sentence credit for good conduct in specific instances as the Director deems proper.” This provision should be used proactively to reduce the population in IDOC facilities.
7. Evaluate individuals who are pregnant, postpartum, or living with their infants in IDOC programs. Pregnant and postpartum women, as well as the babies in the Moms and Babies nursery, are particularly vulnerable to illness. People who are pregnant often have suppressed immune systems and can also have decreased lung capacity, complicating respiratory illnesses. High fevers can also lead to birth defects and miscarriage. The majority of pregnant people and participants in the Moms and Babies program have release dates within the next twelve months. Their release should be prioritized through all available means.
8. Evaluate individuals with HCU living assignments and chronic care needs for consideration of early release. These are vulnerable populations who require significant staff time and resources. If these individuals have sentences that allow

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for consideration of any form of early release, and home placement options, steps should be taken to get them released as soon as possible.
9. Take steps to limit intake into IDOC facilities. As we are quickly learning from public health experts, the safest way to protect against outbreaks of COVID19 is to limit the number of social interactions. We urge you to take action to decrease the number of individuals being taken into IDOC custody, including by placing any limits allowable on receiving, by asking courts and prosecutors to adjust sentencing priorities to avoid incarceration to the fullest extent possible.
10. Ensure that the IDOC has the resources necessary to combat a possible COVID-19 outbreak in one or more IDOC facilities. It is imperative that IDOC have the resources that it needs to provide supplies to both prisoners and staff. This must include unfettered access to soap and cleaning supplies for prisoners, and thermometers and protective gear for staff.
These actions are a necessary first step to minimize the likelihood of an outbreak in IDOC facilities, and to contain the virus within the state. Many of the individuals in IDOC custody are among the most vulnerable for catastrophe should an outbreak occur. We hope that you will approach their health as seriously as you have approached the health of the rest of the state.
The organizations below would welcome an opportunity to speak with you or members of your administration about how to effectively respond to this public health emergency and protect the health and safety of individuals and IDOC custody and the Illinois community.
Signed,
ACLU of Illinois Chicago Community Bond Fund Chicago Urban League Children and Family Justice Center, Bluhm Legal Clinic,
Northwestern Pritzker School of Law Community Justice and Civil Rights Clinic, Bluhm Legal Clinic,
Northwestern Pritzker School of Law Equip for Equality John Howard Association Legal Council for Health Justice Loevy & Loevy Roderick and Solange MacArthur Justice Center Shriver Center on Poverty Law Uptown People’s Law Center Women's Justice Institute

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cc: Lt. Governor Juliana Stratton Director Rob Jeffreys Chief of Staff Camile Lindsay Gary Caplan, Office of the Governor Christian Mitchell, Deputy Governor for Public Safety, Infrastructure, Energy & Environment

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EXHIBIT 7

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PURPOSE:
The State of Illinois must act with increased urgency to release individuals from incarceration who are at significant risk of harm from COVID-19, as well as those who require substantial medical and staff resources that should be preserved for the COVID-19 response.
The purpose of this document is to assist in identifying prisoners who are medically vulnerable, elderly, or resource-intensive (in terms of medical equipment, space and staff time) due to disability or medical condition. We also set forth steps that the Governor’s Office and the IDOC must take to release or, where release is unavailable, to transfer individuals to other settings better able to care for their needs to the furthest extent possible.
I. Facility Identification of the High-Risk/Resource-Intensive Population
If IDOC has not done so already, IDOC must identify all prisoners (a) who are medically vulnerable with regard to COVID-19, (b) who are elderly, and (c) who require medical resources and staff time that should be devoted to COVID-19. As we understand it, IDOC may have already created a list that meets some of or all of these criteria. If this has not been done in any part, or if the current list was not prepared with facility-level medical input, IDOC should direct each facility, through its Medical Directors (MDs) and Health Care Unit Administrators (HCUAs), to create a list, or supplement its existing list, to include the following:
- People over age 55.
- People housed in Health Care Units (HCUs) who could reside at home with supports or services. While many of IDOC’s sickest residents are housed in prison HCUs, not everyone who resides in a HCU would need inpatient care in the community. (We understand there is reluctance to release those who would need to be discharged to a community hospital.) For example, some people reside in HCUs because they need certain equipment (such as oxygen tanks) that could be dangerous inside the general prison population. People with paralysis are frequently housed in HCUs because they need assistance with activities of daily living. Others reside in HCUs

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because they frequently see outside medical specialists for treatment of chronic conditions. Still others are receiving palliative or hospice care.
- People who are immunocompromised.
- People who are seen at chronic clinics.
- People who are pregnant, nursing, or in “moms and babies” programs. It should be easy for administrators at Logan or Decatur to determine who falls into this category.
Due to the urgency of this situation, the Governor should give IDOC facilities a strict deadline by which to identify these individuals, such as 24 hours.
II. Release High- Risk and Resource-Intensive Prisoners
All the individuals on this list are people who are either at risk of severe harm from COVID-19 and/or require regular medical resources that should be preserved to prepare for an outbreak within the system.
IDOC should utilize its authority and discretion, under existing law, to release as many individuals as possible. Maintaining custody of people in these categories presents a significant threat to public safety and health because of the devastating impact that an outbreak will have inside the prison, as well as on staff, local hospitals, and surrounding communities. Releases should be completed as quickly as possible. If COVID-19 becomes widespread in the prisons before vulnerable people are released, the influx of incarcerated people who become sick into community-based hospitals will without any doubt overwhelm their capacity, and cause avoidable deaths.
The Governor’s Office needs to act decisively to insure that IDOC is fully exercising its authority to release as many people as possible from custody to the furthest extent possible, including by ordering IDOC to immediately:
● Issue administrative directives allowing for the transfer to home detention and/or electronic monitoring all individuals identified pursuant to Section I above who qualify under 730 ILCS 5/5-8A-3(d) and (e).
● Release to home detention and electronic monitoring all individuals within its authority to do so, including all people serving sentences for Class 2-4

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felonies pursuant to 730 ILCS 5/5-8A-3(e), and all eligible people over the age of 55 who have less than 12 months left to serve on their sentence pursuant to 730 ILCS 5/5-8A-3(d). This reduction is necessary to allow for social distancing and to preserve IDOC’s resources and medical staff for COVID-19 preparedness.
● In coordination with PRB, expeditiously return all IDOC-requested good time credit pursuant to 20 Ill. Adm. Code 107.160. IDOC should direct counselors at each institution to submit requests for good time restoration for all offenses other than for violations under Offense 102a.
● Award discretionary good time credit pursuant to 20 Ill. Adm. Code 107.210 to the furthest extent possible to all eligible individuals to facilitate immediate and continuing releases.
● Immediately lift all outstanding parole holds for people who are in custody (in both IDOC and local jails) awaiting preliminary and final revocation hearings. Communicate the release of parole holds to local Sheriffs, Public Defenders, States Attorneys and Judges.
Due to the state of emergency and significant threat to public safety, the Governor’s Office must also expand the number of people eligible for release, including by:
● Immediately act to expand eligibility for release to home detention to all individuals identified pursuant to Section I above.
● Increase staffing of parole and field services, to the extent necessary, to facilitate IDOC’s preparedness for a COVID-19 outbreak. Work in collaboration with social workers and other staff from nonprofit organizations to identify appropriate placements for people eligible for release, to expedite the pace of release.
● Direct State’s Attorneys, Courts, and County Sheriffs to take immediate steps to release anyone who is either identified as elderly or medically vulnerable. ○ To expedite the timely release of medically vulnerable people, State’s Attorneys should agree to resentence anyone identified by IDOC as medically vulnerable to time served.

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○ Courts should act quickly on joint motions to release defendants who are being held pretrial, on motions to resentence defendants who are serving incarcerative sentences. Courts should grant motions on the paper submissions whenever possible, and should schedule any hearings expeditiously and telephonically. Courts should waive the presence of the defendant whenever possible.
○ Sheriffs should use their discretion broadly to reduce pre-trial detention to the furthest extent possible. Sheriffs should coordinate with other entities to reduce detention in all manners possible, including by communicating with IDOC to release parole warrant holds. Sheriffs should decline to arrest or cite low-level and misdemeanor conduct ,and should use cite-and-release authority whenever possible.
● The Governor’s Office should use its broad clemency powers to initiate the commutation of sentences to time served for all people in the target categories listed in Section I who are not otherwise eligible for release pursuant to existing statutes and who (i) in addition to being identified in the categories laid out in Section I, have release dates within the next five years, and/or (ii) due to being over the age of 70 and/or due to severe medical condition (such as cancer), are in the highest category of risk of death as a result of COVID-19 infection, regardless of release date.
● The Governor’s Office should direct the PRB to restore good time credit revocations to the furthest extent possible.
● The Governor’s Office should conduct an expedited review of all pending commutation petitions, regardless of whether a hearing by the PRB has been scheduled or completed. This review should begin with any medical emergency commutation petitions that have been filed and then any petitions filed by individuals over the age of 55. Many clemency petitions include a reentry plan that can be immediately enacted.
● The Governor’s Office should direct IDOC to immediately release all people who are awaiting parole revocation hearings on technical violations.
● The Governor’s Office should direct IDOC to stop taking people into custody on technical parole violations. These people do not need to be in IDOC custody. With each new person processed into reception facilities, the risk of

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COVID-19 outbreak grows. Additionally, the medical clearance process diversts valuable medical resources away from COVID-19 management.
● The Governor’s Office should direct the PRB to convene telephonically to immediately review every C-number prisoner still in custody for immediate parole. These individuals, by definition, are all over the age of 60 (the majority are in their 70s), and therefore at extremely high risk of serious illness and death from COVID-19.
● The Governor’s Office should take steps to expand 730 ILCS 5/3-6-3 to allow IDOC to award up to 360 days (from 180) of earned sentence credit for good conduct in specific instances as the Director deems proper.
III. Prioritize Resources to Facilitate Safe Releases Immediately
Steps must be taken to facilitate the immediate release of these individuals in the safest manner possible, including the following steps:
Expansion of Field Services: Field services should immediately execute release/transfer planning for all people identified pursuant to Sect. I above to determine all viable placement options. To the extent needed, Field Services could utilize other clinical staff resources to assist in identifying home placement options. Facilities should be directed to make this effort a priority. Facilities should also be given the discretion to identify other individuals in their custody who staff believe should be candidates for release.
Evaluate public host site requirements and remove barriers to host site approval that are not related to public safety. The requirements should be reviewed and any that are not essential to ensure re-entry should be abandoned. For example, host sites are often denied for lack of a landline phone despite the availability of other forms of communication. Another example is that some host sites have been denied because they are located in “high crime” neighborhoods. Given the statewide order to shelter in place, this should not be a barrier to placement at this time. Additionally, the Governor’s Office should assist in expanding housing options connecting with community partners, universities, and grant providers for social services to explore new housing options.
Provision of State-Issued Identification: The Governor’s Office should take immediate action to facilitate an interagency agreement or memorandum of

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understanding between the IDOC and the Secretary of State’s Office to immediately provide state identification to individuals who are, or are about to be, released. Many of these individuals will need identification in order to provide for themselves, including to obtain prescribed medications, but state offices that issue IDs are currently closed. This could be done in a number of ways, including by IDOC providing the photos and personal information needed directly to the Secretary of State to reduce the amount of in-person involvement needed by the individual.
Medicaid Expansion of Eligibility, Benefits and Enrollment: The state has flexibility to adapt its Medicaid programs to address COVID-19 and should take steps to expand eligibility and benefits and to make enrollment easier. The state may do this (without federal involvement) through state plan amendments (SPAs) or changes in policies and processes.
The Governor should bridge the necessary state agencies and IDOC to prioritize and require changes in the Medicaid program to specifically expedite the enrollment and benefits for all individuals identified in Sect. I above who are being released. While the state’s Medicaid program may already be reviewing eligibility requirements more broadly, the Governor’s Office must ensure that specific steps are taken to expedite the enrollment and benefits for those being released from IDOC, including by considering expanding a category of presumptive eligibility for those identified pursuant to Sect. I above. For more information, see: https://d28lcup14p4e72.cloudfront.net/245981/5087590/Medicaid%20flexibilities%20 to%20address%20COVID19.pdf
Medical Documentation: Many of the individuals subject to Sect. I above will require immediate and ongoing medical care. The State or its vendor should therefore provide them a copy of their medical records without charge to facilitate their care.
For those released who are presumptively qualified for SSI benefits, we have attached a draft form that physicians can use to easily provide the needed documentation. This form should be provided to all facilities for immediate use.
Continuity of Care: To the furthest extent feasible, the State and the IDOC should take steps to:
● Provide at least a one month supply of prescription medications upon release. This is an increase from the current two-week supply issued in light of the

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difficulty many may encounter with obtaining identification and finances to obtain their own medications.
● Schedule appointments for continuing care with any outside treaters currently utilized for the patient’s care where the release is to the same community, or assist in identifying treaters as needed in the home community.
● Assist in providing resources and referrals for home services and health care. We will provide a list of resources.
● Provide the Social Security pamphlet to individuals identified in Sect. 1 above. https://www.ssa.gov/pubs/EN-05-10133.pdf
● Provide Medicaid/Medicare applications and the relevant phone numbers.
Amanda Antholt, Equip for Equality Sheila Bedi, Community Justice Clinic at Northwestern Pritzker School of Law Camille Bennett, ACLU of Illinois, Jobi Cates, Restore Justice Illinois, Thomas F Geraghty & Northwestern Pritzker School of Law, Bluhm Legal Clinic Sarah Grady, Loevy & Loevy Harold C. Hirshman, Dentons Alan Mills, Uptown People’s Law Center Jennifer Soble, Illinois Prison Project Sarah Staudt Chicago Appleseed Vanessa del Valle, MacArthur Justice Center

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EXHIBIT 8

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Statewide Summary Report Including Review of Statewide Leadership and Overview of Major Services
Report of the 2nd Court Appointed Expert Lippert v. Godinez
October 2018
Prepared by the Medical Investigation Team Mike Puisis DO Jack Raba, MD
Madie LaMarre MN, FNP-BC Catherine M. Knox RN, MN, CCHP-RN
Jay Shulman, DMD, MSPH

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Table of Contents
Background ........................................................................................................................... 2
Methodology......................................................................................................................... 2
IDOC Prisons Overview .......................................................................................................... 6
Key Findings .......................................................................................................................... 9
Statewide Medical Operations............................................................................................. 12 Leadership, Staffing, and Custody Functions............................................................................ 12 Wexford Provider Staffing and Physician Credentialing........................................................... 21 Statewide Use of University of Illinois ...................................................................................... 31
Statewide Overview of Major Services................................................................................. 32 Clinical Space and Equipment................................................................................................... 32 Medical Records........................................................................................................................ 37 Medical Reception .................................................................................................................... 42 Intrasystem Transfer................................................................................................................. 45 Nursing Sick Call ........................................................................................................................ 48 Chronic Care.............................................................................................................................. 52 Urgent/Emergent Care.............................................................................................................. 59 Specialty Consultations ............................................................................................................. 62 Infirmary Care ........................................................................................................................... 69 Pharmacy and Medication Administration ............................................................................... 77 Infection Control ....................................................................................................................... 84 Mortality Reviews ..................................................................................................................... 91 Dental Program ....................................................................................................................... 103 Internal Monitoring and Quality Improvement...................................................................... 118
Recommendations ............................................................................................................ 121 Key Recommendations of Second Court Expert ..................................................................... 121 Organizational Structure, Facility Leadership, and Custody Functions .................................. 122 Clinic Space and Equipment.................................................................................................... 124 Medical Records...................................................................................................................... 126 Medical Reception .................................................................................................................. 127 Intrasystem Transfer............................................................................................................... 129 Nursing Sick Call ...................................................................................................................... 129 Chronic Care............................................................................................................................ 131 Urgent/Emergent Care............................................................................................................ 133 Specialty Consultations ........................................................................................................... 135 Infirmary Care ......................................................................................................................... 137 Pharmacy and Medication Administration ............................................................................. 138 Infection Control ..................................................................................................................... 140 Mortality Reviews ................................................................................................................... 146 Dental Program ....................................................................................................................... 147 Internal Monitoring and Quality Improvement...................................................................... 150

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other state prison systems nationwide.21 IDOC Spending in 2017 is still below the average 2015 spending of prisons nationwide.

Ten Lowest Per Capita Expenditures for Health Care in US State Prison
Systems in 2015

State Louisiana Alabama Indiana Nevada South Carolina Arizona Georgia Illinois Kentucky Mississippi

Per Capita Annual $2,173 $3,234 $3,246 $3,246 $3,478 $3,529 $3,610 $3,619 $3,763 $3,770

For most state systems, the number of employees, age, and percent of female population were the largest drivers of cost of prison health programs. The Federal Bureau of Prisons assessed that institutions with the highest percentages of aging inmates spent five times more per inmate on medical care and 14 times more per inmate on medication than institutions with the lowest percentage of aging inmates. The National Institute of Corrections estimates that inmates over age 55 cost, on average, two to three times more than the expense for all other inmates.22 Based on this same 2017 report, Illinois has the seventh lowest rate of persons over age 55 (8.5%). As well, in 2015 IDOC had a female population of 5.8%, the ninth lowest rate of females incarcerated in state prison systems. These two factors should lower the costs of care somewhat, but are not so great as to account for the difference in IDOC cost from the mean health expenditure of state prison systems.23
Staffing appears to be the biggest contributor to the low IDOC spending on health care. In fiscal year 2015, Illinois has the second lowest number of full-time equivalent (FTE) health care workers (19.3 per 1,000 inmates) of all 50 state prison systems. The range of FTEs per 1,000 in the 50 state systems range from 18.6 FTEs per 1,000 inmates to 86.8 FTEs per 1,000 inmates.24

21 In his deposition, Mr. Brunk the Chief Financial Officer for the IDOC stated on pages 12-13 that the total expenditures on health care in the IDOC were approximately $203 million. Using a population of approximately 42,000 the expenditures per inmate per year would be approximately $4,800. 22 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality. 23 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality. 24 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality.

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There is a direct correlation between the FTEs per 1,000 inmates and per-inmate annual spending. A low number of staff can reflect a more efficient system of care or understaffing with its attendant negative consequences for provision of health care. In our study, we found that in 2018 there were 25 employees per 1,000 inmates, which still places Illinois approximately in the lower 10% of state prison systems based on 2015 data. This will be discussed later in this report.
Key Findings
Overall, the health program is not significantly improved since the First Court Expert’s report. Based on record reviews, we found that clinical care was extremely poor and resulted in preventable morbidity and mortality that appeared worse than that uncovered by the First Court Expert.
Governance of the IDOC medical program is subordinated to custody leadership on a statewide level and at the facility level. The subordination of health care to custody leadership has resulted in a medical program that is not managed on sound medical principles and one that is without medical leadership.
The existing IDOC system of care was established to have a more robust central office capable of monitoring vendor activity. The IDOC central office has been progressively diminished over the years to the point where it is incapable of effective monitoring.
The medical program does not have a separate budget. The IDOC could not provide to us a document that included expenditures for medical care. Authorization and responsibility for medical expenditures does not reside with the health authority.
IDOC Administrative Directives are inadequate policies for this state system. The IDOC medical policies need to be refreshed, augmented, and address all National Commission on Correctional Health Care (NCCHC) standards.
The IDOC does not have a staffing plan that is sufficient to implement IDOC policies and procedures. The staffing plan does not incorporate a staff relief factor.
Custody staffing has also not been analyzed relative to health care delivery to determine if there are sufficient custody staff to deliver adequate medical care.
Budgeted staffing was increased but vacancy rates were higher than noted in the First Court Expert’s report. Staff vacancy rates are very high.

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list of major responsibilities or tasks, except for addressing questions of the physician staff. Because neither IDOC nor Wexford performs effective review of clinical care of physicians, poorly performing physicians continue to perform poorly without apparent oversight. We noted this on multiple chart reviews and mortality reviews.
Wexford Regional Medical Directors are also responsible for ensuring patient care is consistent with community standards.43 Yet we found many examples of physicians providing care inconsistent with current standards of care that appear to be systemic practices. For example, IDOC does not provide colorectal cancer screening based on current standards of care and does not appear to routinely screen patients with cirrhosis for varices or hepatocellular carcinoma. Persons with chronic obstructive lung disease (COPD) are not provided pulmonary function testing, which is a cornerstone of management of COPD. The current management of lipid disorders is not in line with current standards or with the Office of Health Services treatment guideline. We will discuss these later in the Chronic Disease section of this report. These deficiencies need to be corrected because these deficiencies have caused morbidity and mortality. There is no evidence of participation of the Wexford Regional Medical Team in identifying these deficiencies to the IDOC or ensuring that their physicians are practicing based on contemporary standards of care.
With respect to facility leadership, administrative supervision by HCUAs at individual facilities has improved since the First Court Expert’s visit. The IDOC HCUAs are responsible for administrative operational supervision of each facility. Of the 26 HCUA positions, all but one is now filled. However, two of the HCUAs also serve as acting Regional Coordinators, making them much less effective as HCUAs. Effectively, only 23 of 26 HCUA positions are filled. HCUAs were all competent and were engaged in solving administrative problems, even though some problems appeared unrecognized. This is one of the most significant and positive advances since the First Court Expert’s report and is a strength that the program can build on.
Medical Directors are all Wexford positions. Of the 26 Medical Directors statewide, 8.5 (33%) are vacant.44 This is an enormous vacancy rate for this key leadership position. Approximately only half of physicians have training in primary care, which will be discussed later in this report. This is a very small percentage of physicians trained in primary care. When a Medical Director is not trained in primary care it is very difficult to be responsible for monitoring performance of medical staff rendering direct patient care. An untrained physician is not likely to know how that care is supposed to be provided. We found that onsite monitoring of clinical care was very poor to nonexistent.
Director of Nursing (DON) positions can be either Wexford or IDOC. Fifteen (58%) of the DON positions are staffed by Wexford. Eleven (42%) are staffed by the IDOC. Seven (27%) of DON positions are vacant; four DON vacancies are Wexford positions and three DON vacancies are

43 Regional Medical Director’s Responsibilities as provided by Wexford Health Sources. 44 Illinois Medical Vacancy Report with ASRs as of 6/18/18 provided by the Attorney General’s Office from Wexford Health Sources. This report gives staffing at all facilities as of 6/18/18.

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IDOC positions. Nursing staff can be either IDOC or Wexford, making it difficult, because of coemployment rules,45 to properly supervise line staff.
Of the 78 leadership positions (Medical Director, DON, and HCUA) at the 26 facilities, 16.5 (21%) are vacant. The vacant positions are compounded by co-employment issues46 and use of two HCUAs as Regional Coordinators. The leadership vacancies are significant on a statewide basis. The lack of Medical Directors is dramatic and is compounded by using physicians in these positions who are, in our opinion, unqualified by virtue of not having primary care training.
In summary, administrative supervision by HCUAs is adequate but clinical-medical supervision and management, particularly physician care, is inadequate and places patients at significant risk of harm. The clinical supervision at the facility level is inadequate based on Medical Director and DON vacancies, and poor qualifications of physicians.
IDOC Policy The IDOC provides policy direction on clinical care through its Administrative Directives and chronic care guidelines. The medical Administrative Directives are a part of the larger IDOC Administrative Directives which include all custody policy. We will discuss the chronic disease guidelines in the section on Chronic Disease and dental guidelines in the Dental section. The Medical Administrative Directives are inadequate with respect to the breadth of guidance that is necessary for a correctional medical program. The IDOC has only 18 Administrative Directives. In comparison, the National Commission on Correctional Healthcare47 has 68 standards, which is a minimum panel of policies for a large prison system. There are essential areas of service that are not governed by Administrative Directives and thereby are not guided by policy and not standardized statewide. Though each facility can have additional institutional policies and procedures, the lack of statewide guidance means that practices are not standardized. The Office of Health Services needs to be responsible for statewide policy guidance in all areas of service, with local policy following statewide policy. The 18 medical Administrative Directives are inadequate for this purpose. The National Commission on Correctional Health Care standards are a reasonable guideline to determine the scope of processes of care that should be governed by Administrative Directives.
Wexford Provider Staffing and Physician Credentialing
It is our opinion that the quality of physicians in the IDOC is the single most important variable in preventable morbidity and mortality, which is substantial. The first step in provision of quality of care is to ensure appropriately credentialed medical staff. In its response to the First

45 Co-employment means that there are two employers (IDOC and Wexford), each of whom has some legal responsibility for the same employees. 46 When a State employee HCUA is responsible for managing the health care unit but staff are Wexford, there are some limitations with respect to discipline and assignment as a result of union rules. When a DON is a Wexford employee and staff nurses are state employees, the same occurs. These co-employment issues affect multiple facilities we visited. 47 The National Commission on Correctional Healthcare is the leading organization establishing standards for correctional health programs.

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Court Expert’s report,48 on page 4 an attorney for the State states that, “More than 80% of WHS’ [Wexford Health Services] physicians are either Board Certified in Family Practice or Internal Medicine, or have more than 10 years of Family/Internal Medicine practice experience or correctional medical experience.” This is a misleading statement that gives an inaccurate representation of the credentials of physicians. Credentialing information provided by Wexford shows that only six (20%) of the physicians are board certified in a primary care field. Because physicians typically work alone in these facilities, experience alone is no guarantee that performance will improve to be consistent with current standards of care. We document multiple preventable deaths in the mortality review section of this report. It is our opinion that poorly credentialed physicians contribute significantly to those preventable deaths.
Currently, there are 30 Wexford physicians working in IDOC facilities. Of these, only 16 (53%) have completed training in primary care. Of the 16 that completed primary care training, only six (20% of the 30) are board certified in primary care. Two doctors are obstetricians who work at LCC doing women’s care, for which they are appropriately credentialed and privileged; one of these is board certified. These doctors only provide obstetrical and gynecological care, not primary care. Five physicians have an internship or a year or two of primary care training but did not complete a residency.49 The remaining seven include:
• One anesthesiologist • One doctor with two years of occupational medicine • One doctor with some training in pathology • One doctor with a year of physical medicine • One surgeon • Two radiologists, one of whom did not complete residency training.
Credentialing is a process whereby a physician’s qualifications are evaluated by reviewing their education, training, experience, licensure, malpractice history, and professional competence with respect to the work they will be expected to perform. Proper credentialing is the foundation of protecting patient safety. Credentialing must ensure that a physician is properly trained for the work they will be performing. Credentialing protects patient safety by preventing incompetent, poorly trained, or impaired physicians from engaging in patient care. In correctional facilities, the scope of practice required and the health care needs of patients are mostly primary care, which requires physicians who have residency training in a primary care field. However, the only requirement in the IDOC with respect to credentialing is to verify that a physician has a license. A Regional Coordinator testified that the only review of credentials is to verify that the doctor has a license, and that their training, board certification, or disciplinary history is not part of credentialing review.50

48 Letter via email to Dr. Shansky, First Court Expert from William Barnes, representing the IDOC dated 11/3/14. 49 This information comes from items 42Z9081-42Z8845-Part 1; 42Z9082-42Z8845-Part 2; 42Z9085-42Z8845-Part 4; 42Z908842Z8845-Part 3; and 42Z9090-42Z8845-Part 5. This credentialing information was provided by Wexford Health Sources, Inc. 50 Deposition of Joseph Ssenfuma, Regional Coordinator, on September 28, 2017.

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Privileges are the services and procedures that a physician is qualified to perform based on training and experience. The credentials and training of a physician determine what privileges that physician should have. As an example, a doctor who is trained and credentialed in general surgery can obtain privileges to perform appendectomies and cholecystectomies. A physician trained and credentialed in obstetrics can obtain privileges to deliver babies. Physicians trained and credentialed in internal medicine or family practice can obtain privileges to practice primary care. Physicians trained and credentialed in internal medicine cannot obtain privileges to deliver babies or perform appendectomies. And physicians trained and credentialed in radiology or general surgery cannot obtain privileges to provide primary care. Because the scope of practice and needs of the patients in a correctional medical program are primary care, physicians should be credentialed and privileged in primary care. In IDOC, physicians are credentialed to perform primary care even when they have no training in primary care. This is a serious problem with the credentialing process. For this reason, we agree with the First Court Expert that Medical Directors be board certified in a primary care specialty. Given the size of the IDOC facilities, there is only one physician on staff at most facilities. When this physician is not trained in primary care, there is no other available physician to care for the patient.
Because there are so many physicians who have not completed a primary care residency, the level of supervision of their care should be at a higher level than for board certified physicians. This is not the case. There is no special monitoring for this group. All physicians receive the same type of peer review.
Peer review is a means to monitor the quality of physician and other provider care, and thereby protects patient safety. Peer review of physicians in the community is typically of two types. One type of peer review is done on a routine basis for all physicians and is done as a monitoring device to ensure quality of care. This type of peer review is often called performance evaluation program or PEP. A second type of peer review is done when a member of the medical staff may have committed a serious gross or flagrantly unacceptable error or exhibits a serious character or behavior problem and needs to be evaluated with respect to possible reduction of privileges or referral to a medical board. The latter type of peer review is generally a formal quasi-legal procedure that has significant implications for the physician’s employment and professional status. We found that the first type of peer review is done for all physicians and mid-level providers in the IDOC, but the second type of peer review does not appear to occur in IDOC, based on information made available to us. As will be detailed later in the mortality review section of this report, there were numerous grossly and flagrantly unacceptable episodes of care that should have resulted in peer review but did not. Peer review in the IDOC is ineffective, as physicians who commit repeated egregious medical errors continue to practice and continue to harm patients.
The first type of peer review which is performed by Wexford is a structured questionnaire performed by one Wexford physician on another Wexford physician. We noted at one facility that a general surgeon performed the peer review of the primary care work of a nuclear radiologist. It is our opinion that this type of performance evaluation is defective and unlikely to

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result in meaningful evaluation, as neither doctor is adequately trained to practice primary care and would not be able to know when care was adequate.
Also, the peer review that is done is so poor that it is unlikely to identify problems. The Wexford peer review consists of a review of 10 single episodes of care for five areas of service. For each of these areas of service there are a series of questions ranging from 10 to 15. Some of the questions are not relevant to clinical quality, such as:
• Is the handwriting legible? • Is the signature with professional designation legible? • Is the patient enrolled in all relevant clinics? • Are all medications written on a script? • Does the clinic include pertinent vital signs?
While it is important to write a legible note, legibility does not evidence clinical competence. Many questions require an interpretation. For example, the question “Was treatment appropriate for this visit” requires that a physician know the appropriate treatment. The problem is that when only 20% of doctors are board certified and 23% have no training in primary care, many doctors will not know the appropriate treatment. Doctors performing these evaluations need to be expected to know what the appropriate treatment is, otherwise the test will not perform as expected. Also, these episodes of care are picked at random and may not include patients that have serious illness. When someone does not have a serious illness, it is difficult to test the clinician, because it is very difficult to make an error if there is no decision to make with respect to the treatment. Additionally, it appears that these reviews are not taken seriously and appear to be done merely because these are requirements of the contract. For these reasons, it is not surprising that almost all peer reviews were scored 100% adequate. When we compare these results with death chart reviews we performed, there is dramatic discrepancy. Most chart reviews we performed contained many errors. We reviewed the care provided over two years prior to the death. Of 33 death charts we reviewed, there were over 1700 errors. Many had serious errors. Some had egregious errors that resulted in death. We noted the same level of medical error in chart reviews we performed on site visits. The Wexford methodology of peer review does not appear to accurately review physician practice, based on a comparison to our record review of clinical care. This process is not working as intended.
The First Court Expert opined that Wexford hired underqualified physicians, and recommended that facility Medical Directors be trained in primary care and be board certified. We agree with this finding, based on the credentialing information above, and we agree with his recommendation.
In reviewing the Defendants’ comments to the First Court Expert’s Draft Report,51 the Defendants challenged the assertion of the First Court Expert that Wexford Health Services has hired “underqualified clinicians.” In their attempt to refute that assertion, the Defendants

51 Re: Lippert v. Godinez – Defendants’ comments regarding Confidential Draft Report via email dated November 3, 2014, authored by William Barnes.

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stated that, “The community standard, as espoused by the American Medical Association, requires physicians to possess only a license to practice medicine.” This is misleading and inaccurate. This statement implies that the current community standard of medicine is for physicians to only have a license to practice medicine, presumably in any field. We disagree. It is our opinion that the community standard in the U.S. is for physicians working in primary care to have residency training in a primary care field. One would never see a pathologist delivering babies. The Defendants’ statement also implies that the American Medical Association (AMA) endorses their position. This statement of Defendants is neither the community standard nor is it a standard we could identify as espoused by the AMA.
It is true that it is legal for a doctor without residency training to open a private practice in the community and practice primary care medicine without any training in primary care. However, it is becoming increasingly uncommon, and particularly in urban areas, it is now extremely uncommon to find doctors without residency training in primary care who work in general practice. The standard in the community is for physicians in organized medical practices to undergo credentialing and privileging, and to have residency training consistent with their scope of practice.
With respect to the recommendation to hire board certified physicians, the State’s response said,
“This recommendation, along with any recommendations dictating specific training or certification for licensed correctional physicians, lacks any justification or support in state law and community, ACA, AMA, and NCCHC standards. Accordingly, this recommendation exceeds minimum constitutional standards of adequacy” [my emphasis].52
With respect to the assertion that use of board certified primary care physicians exceeds minimum constitutional standards of adequacy, we note as an example that there has been Federal Court intervention requiring use of primary care trained physicians when that training was necessary to protect inmate-patients. For years, the California Department of Corrections and Rehabilitation (CDCR) had poorly credentialed physicians, which resembled the current situation in the IDOC. In 2004, in the California prison system, many physicians were not trained in primary care; instead, they had training in surgery, radiology, gynecology, pathology, etc., similar to the IDOC situation in 2018. Many physicians had prior or current sanctions of their licenses and evidence of clinical incompetence by virtue of malpractice claims, which we were unable to evaluate for Wexford physicians. It was the opinion of the Court in California that the lack of qualified physicians resulted in increased morbidity and preventable death. We believe that the situation in California is similar to the situation in the IDOC. In California, as a result of that situation, the Federal Court issued an order53 requiring the use of physicians who were

52 Letter via email to Dr. Shansky, First Court Expert from William Barnes, representing the IDOC dated 11/3/14. 53 Proposed Stipulated Order Re: Quality of Patient Care and Staffing; Marciano Plata, et al., v. Arnold Schwarzenegger, et al.; United States District Court Northern District of California No. C-01-1351 T.E.H., originally filed 9/17/04. In that order, the Court stated: “As of January 15, 2005, defendants shall not hire independent contractor primary care physicians who are not boardeligible or board certified in internal medicine or family practice.” p. 3.

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board certified or board eligible54 in internal medicine or family practice.55 We note that in the California prison system in 2007, there were 18 preventable and 48 potentially preventable deaths, and in 2017, when all physicians were required to be board certified, there were 0 preventable deaths and 18 potentially preventable deaths.56 Although there were other systemic improvements that helped reduce the number of preventable deaths, improvements in physician credentialing played the major role. Improving credentials of physicians and removal of unqualified physicians has been shown to reduce mortality.57
We have learned that in the mid-1980s, approximately 12 IDOC prison facilities were accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). At that time, the Agency Medical Director approved all facility Medical Directors and his requirement was that Medical Directors completed primary care training. Accreditation by JCAHO required privileging based on appropriate credentials. At that time, the IDOC placed into its Administrative Directives the requirement that all physicians have one-time primary source verification of their credentials, which was a requirement to verify training. The IDOC ended their accreditation with JCAHO but kept in the Administrative Directives the requirement of primary source verification. Over the years this practice was ignored and currently the HCUAs we interviewed do not even know what primary source verification is. The only credentialing review is to ensure at the annual CQI meeting that every physician has a license.
Physician Staffing Physician staffing in IDOC is very poor. The Vice President of Operations for Wexford could not remember the last time there was a full physician staff. She thought in 2014 there was only one vacancy, but that was as close to full staffing as the program got. We noted earlier in this report that IDOC lacks adequately trained physicians. This is compounded by vacancies in physician positions. Persistent and ongoing vacancies in the Medical Director position title contribute significantly to physician staffing deficiencies. In addition to vacancies of Medical Directors, all five facilities we visited were missing a physician. Two facilities had replaced a physician position with a nurse practitioner because of the inability to fill physician positions. Statewide, the total days of missing Medical Directors totaled 22% of total days these positions were supposed to be filled,58 an unacceptable vacancy rate.
Because of vacancies, physicians are moved from site to site as “Traveling Medical Directors.” One of the facilities we investigated, NRC, had a Traveling Medical Director. This individual did

54 Board eligible is a term used to describe a physician who has completed a residency training in a field and is therefore qualified to take a board certification test for that specialty. For example, a board eligible internist is one who has completed a residency in internal medicine and is qualified to take the board certification test but has not yet done so. 55 Since this order, the California Department of Corrections and Rehabilitation, through the Receiver’s office, requires board certification in family practice or internal medicine. 56 Based on annual analyses of inmate deaths as reported by Dr. Imai, consultant to the medical receiver in California as found under the heading of Death Review at https://cchcs.ca.gov/reports/. 57 Terry Hill, Peter Martello, Julie Kuo; A case for revisiting peer review: Implications for professional self-regulation and quality improvement. Plos One at https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0199961&type=printable. 58 Document 42P5621-IDOC Facilities lacking permanent medical directors 7-1-15 to 11-26-17 Bates number 550.

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not participate meaningfully in quality improvement, did not show any evidence of oversight of the medical program, and had clinical issues.
The turnover of Wexford physicians is also very high. Of 33 physicians listed on a 9/19/14 report59 by Wexford, only 18 (54%) are still working three and a half years later. The inability of Wexford to hire and retain qualified physicians is a serious problem and was mentioned as a significant problem by every HCUA we spoke with. There has been no formal analysis of this that we could find. The Vice President of Operations for Wexford told us that it was harder to recruit to corrections because of the impression that if you worked in corrections, you were a bad doctor. We disagree. In our opinion and from experience, recruitment in corrections depends on establishing conditions of work that are professional and foster a sense of providing a worthwhile service. When that occurs and when doctors are properly supported, qualified doctors can be found and retained in correctional environments and elsewhere.
At the five sites we visited, none had a long-tenured Medical Director. LCC had a Medical Director who had the longest tenure of the five facilities we inspected. She had been Medical Director since May of 2016. The Medical Director at Dixon started in October of 2017. The Medical Director at MCC has been in his position since June of 2017. One Medical Director was at Dixon for a short period of time before being moved to NRC. After several months at NRC, he was moved to SCC. About two months after being moved to SCC, he resigned. His position at NRC was filled in coverage by the ex-Medical Director at Hill, who the First Court Expert stated had identified clinical issues. This musical chairs rearrangement of Medical Director assignments is demonstration of the failure to create an environment likely to attract qualified physicians. The IDOC needs to determine why it is that their vendor cannot recruit and retain qualified physicians.
Physician leadership was not improved based on the First Court Expert’s comment that,
“the Medical Directors were functioning in primarily clinical roles and spent little if any time reviewing the clinical practice of other providers or engaging in other important administrative duties.”60
Several of the HCUAs spoke about poor physician quality as an issue. Two of the Medical Director positions were vacant. A coverage physician at one facility with a vacant Medical Director position did not participate meaningfully in quality work or in providing clinical leadership. In two of the remaining three facilities we visited, the HCUA spoke of having problems with the Medical Director. One was described as only doing chart reviews, not wanting to see patients, not reviewing deaths, and having to be urged to see patients. When leadership and quality of physicians is inadequate, patients are placed at risk because poor quality will not be identified or corrected.

59 40C0134- IL Physicians Report 9 19 14 Key Produced by Wexford Health Services. 60 Final Report of the Court Appointed Expert, Lippert v. Godinez December 2014 p. 7.

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Non-Physician Staffing On a statewide basis, exclusive of dialysis and the HIV and hepatitis C telemedicine program, there are 1119.6 medical staff in the IDOC program, with an inmate population at mid-year 2017 of 43,075. This amounts to 26 staff per 1000 inmates, which places IDOC approximately in the lowest 10% of state prison systems in the country61 with respect to staffing numbers based on 2015 data. Of the 1119.6 staff, 401 (36%) are employed by IDOC and 718.6 (64%) are employed by Wexford Health Sources. Of the 1119.6 medical staff, there are 245.8 (22%) vacancies, not including leave of absences, which would increase this number a few points. Wexford has an 18% vacancy rate for its 718.6 employees and IDOC had a 29% vacancy rate for its 401 employees. These are very high vacancy rates and compound a very low staffing level, making staffing a critical problem statewide. This was confirmed by HCUAs at sites we visited.

We compared facility staffing for mutually visited facilities. In 2014, the First Court Expert determined that for the five facilities we visited there were 303.41 budgeted positions, an 18% vacancy rate, and 25 staff per 1000 inmates.

Positions, Vacancies, and Positions per 1000; First Court Expert’s 2014 visit62 Facility Positions Vacancies % Vacancy Population Staff per 1000

SCC & NRC 73.90

23

31%

4078

18

LCC

62.21

4

6%

1997

31

Dixon

66.30

18

27%

2349

28

MCC

101

9

9%

3750

27

Total

303.41

54

18%

12174

25

For the same five sites we visited, there were 405.05 budgeted positions. There were 99
(23.5%) vacancies. This is a very large vacancy rate, which makes it difficult to effectively operate a health program.63 Four of the five facilities we visited had unacceptable vacancy rates.64 We note several key differences in the staffing differences between 2014 and 2018. The
population in the five facilities we reviewed decreased by 2177 (18%). The number of positions

61 Prison Health Care: Costs and Quality, Pew Charitable Trusts, October 2017. We note that the staffing levels given in the Pew study reflect 2015 numbers. However, these 2018 IDOC staffing numbers still would rank Illinois in the lowest 10% of state prison systems comparing IDOC 2018 staffing to nationwide 2015 numbers. 62 This table is constructed from data taken from tables presented in the First Court Expert’s report. 63 In Defendants’ comments on our report they noted that there is a national nursing shortage and cite a survey of readily available health care facilities in the United States in January 2018 by Nursing Solutions, Inc. a recruitment firm. Defendants note that over 25% of the hospitals in this country who responded to the survey have Registered Nurse (RN) vacancy rates of greater than 10%. This same study reported that the average vacancy rate for Registered Nurses is 8.2%. In either case, nursing vacancies in the IDOC facilities we visited exceeded the average from this survey and were much more than the maximum of 12.5% used in the study. 64 Except for LCC, all IDOC facilities had vacancy rates of 20% or greater. These vacancy rates are much higher than Federal Bureau of Prisons policy that establishes that vacancy rates not exceed 10% during any 18-month period (Program Statement P3000.03: Human Resources Management Manual, Chapter 3, page 11 obtained at https://www.bop.gov/PublicInfo/execute/policysearch#. There are no published reports comparing vacancy rates amongst health care providers working in state prison settings.

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increased by 101.64 (33%).65 The staff per 1000 inmates increased by 16 (64%). But the vacancy rate increased from 18% to 23.5%, a 30% increase.

Positions, Vacancies, and Positions per 1000 Inmates; 2018 visits

Facility

Wexford and IDOC staff

Vacancies

% Vacancy

Population

Staff per 1000

SCC

98.00

24

24%

1183

83

NRC

69.00

29

42%

1681

41

LCC

53.15

1

2%

1806

29

Dixon

93.80

19

20%

2298

41

MCC

91.10

26

29%

3029

30

Total

405.05

99

23.5%

9997

41

While budgeted staffing increased at three of five facilities we visited, it decreased at two of five facilities. There are 44 additional staff working at these facilities than there were when the 2014 report was written.

Four of five facilities we visited had significant vacancy rates, as high as 42%, which are mostly nursing staff. Almost every HCUA told us that there were insufficient nursing staff. This was confirmed in the deposition of the Agency Medical Coordinator, who noted that over the past several years there have been nursing shortages at SCC, Pontiac, Decatur, Graham, Southwestern, and MCC.66
Most HCUAs told us that if all their positions were filled they believed that there would be adequate staff. We do not agree. The IDOC has not performed a staffing analysis based on expectations of the Administrative Directives and special care needs, including infirmaries and geriatric care. Relief factors have not been included in staffing considerations and budgeted staffing numbers do not appear to be adequate. In our opinion, despite increased nurse budgeted staffing and even when vacancies are filled, there will still be nursing shortages. The IDOC, in their comments on our report, assert that the IDOC in the current fiscal year and Wexford in the past year spent a total of $8,283,718 on overtime wages. We acknowledge that this is a significant expenditure. Based on our investigation, overtime is used to cover some but not all vacant shifts. However, reliance on overtime contributes to staff fatigue, increased errors, staff dissatisfaction and turnover as well as higher incidence of poor patient outcomes.67 While we did not evaluate working conditions for staff, we did find ample evidence of error and

65 Dixon appears to have had a significant increase in staffing, but as the HCUA related to us, this is artefactual, as 22 nurses were moved from the mental health program to the medical program but still had assignments in mental health. Their reassignments did not create increased staffing for the medical program, but gave the impression that there had been a large increase in staffing. If these 22 nurses are removed from the Dixon staffing, the actual increase in staffing would be 79.64 positions or a 26% increase, not a 33% increase. 66 Deposition of Kim Hugo, Agency Medical Coordinator pp. 25-31, April 11, 2018. 67 Institute of Medicine (2004) Keeping Patients Safe: Transforming the Work Environment of Nurses. National Academies Press, Washington, D.C., Stanton, M. (2004). Hospital nurse staffing and quality of care. Agency for Healthcare Research and Quality. Research in Action, Issue 14.

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poor patient outcomes in our review of health care provided to IDOC prisoners. The use of overtime does not change our opinion that a staffing analysis is needed or that there is lack of adequate staffing.
The Wexford component of staffing is memorialized in a contract document called a Schedule E. Based on interviews with senior leadership of Wexford and IDOC, we could not determine who is responsible for developing staffing levels found in the Schedule E. The Wexford Vice President of Operations told us that the Schedule E staffing is the recommended staffing of the IDOC to which the vendor can make suggestions. Mr. Brunk, the Chief Financial Officer, told us that the Schedule E is developed by the Wexford Regional Manager and reviewed by the IDOC Office of Health Services. The Agency Medical Director told us that he had input into the Schedule E for new facilities but otherwise had no input into the Schedule E, and that Mr. Brunk or Wexford developed the Schedule E, which the Office of Health Services approved. The Chief of Programs and Support Services, who is the health authority, told us that the Agency Medical Director was responsible for development of the Schedule E. Development of the Schedule E is not in the job description of the Agency Medical Director. The lack of a central health authority, we believe, contributes to this confusion. Furthermore, the Schedule E as represented in the current contract does not include input from HCUAs, Regional Coordinators, or even the Agency Medical Director in addressing clinical needs in their facilities. Given these responses, it is our opinion that the Schedule E does not reflect actual staffing need, as it does not appear based on any staffing analysis we could identify after discussions with health leadership who we thought would be responsible for this document.
No one we spoke with has responsibility for determining if total staff (state and Wexford) is adequate. The IDOC Agency Medical Director and the Agency Medical Coordinator told us that an Assistant Warden of Programs (AWP) from Sheridan, who also was a nurse, was engaged in analyzing staffing at various sites, but the extent of this analysis was not known to the Agency Medical Director. The Illinois Nursing Association (INA) is the union for the registered nurses in the IDOC. The Agency Medical Coordinator participates on an INA standing committee that meets monthly to discuss INA related nursing issues. The INA has raised issues with respect to staffing at certain facilities. When this occurs, the AWP from Sheridan performs a staffing analysis, brings it to the standing committee, which then considers staffing recommendations, and forwards them the Agency Medical Director for review. Other than this effort, we could identify no analysis of staffing need state wide.
Based on conversations with senior IDOC leadership, staffing increases at NRC and SCC were a result of union negotiations. Senior IDOC Office of Health Services staff were not involved in this decision,68 although a Regional Coordinator gave recommendations on how many nurses were needed. These increases were not based on a thorough staffing analysis, as relief factors were not used and because no positions other than RN positions were considered. At no facility has there been an analysis of staffing need based on adherence to the Administrative Directives. This creates a gap between clinical need and staffing levels that affects all facilities.

68 See pages 14-16 of deposition of Kim Hugo, Agency Medical Coordinator, April 11, 2018.

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the Warden. This appears to have resulted in procedures that accommodate custody needs even when it results in medication administration practices that violate nursing practice standards.
Further, we observed nurses floating medication well in advance of administration, which alters the medication’s properties, and crushing medication that was put in the reused envelopes, which contaminates other medications put into the envelope. These practices put inmates at risk of receiving ineffective treatment and adverse drug reaction.
Medication Continuity Chronic disease patients are not monitored to ensure continuity in treatment nor is their compliance with prescribed treatment assessed. Chronic disease medications are provided to patients either as “Keep on Person” (KOP) or each dose is administered by a nurse. We found many examples of patients whose ordered medications were never provided, were delayed starting, and were stopped because the patient had not been seen by a provider to renew medication. Record reviews indicated that appointments for chronic care are not scheduled to take place prior to expiration of chronic disease medication orders. As a result, providers often reorder medications without seeing the patient to conduct a clinical evaluation to determine whether the treatment plan should be continued or changed, based upon the how well the patient’s chronic disease is controlled.
Facility policy and procedures162 direct that the MAR be available with the medical record at the time of a chronic care provider visit. However, we saw no evidence that current MARs were available at the time a patient saw a provider. We also saw no evidence that providers review the MAR and discuss the patient’s adherence as part of chronic care appointments. Facility policy and procedures163 also instruct nurses to refer patients to a provider for evaluation and possible change in treatment if they refuse to take prescribed medication. In the records we reviewed, there were multiple examples of patients not taking medication as prescribed who were not referred for provider evaluation.
Monitoring Performance Pharmacy audits and inspections, which are done routinely, document the problems described above. These reports are reviewed and included in the institution CQI meetings. They document ongoing problems system wide with medication, including: use of the envelope rather than MAR to prepare medication; failure to document medication given on the MAR; failure to transcribe orders onto the MAR; administering medication for which there was no order, or when the inmate was not present at the facility; administering medications that differ from the order; documenting in advance that medication was administered; and the presence of open, undated, multi-use containers of medication. There has been some coaching and
162 LCC, SCC, and DCC Operations Policy and Procedure P. 107 Management of Chronic Disease and MCC Policy and Procedure V3-12 Medical management of offenders with a chronic condition. No policies and procedures were provided for NRC. 163 LCC, SCC, and DCC Operations Policy and Procedure P. 128 Medication Services and MCC Policy and Procedure V 4-1 Pharmacy Services. No policies and procedures were provided for NRC.

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counseling of individuals, but there has been no review or analysis done to identify root causes for these persistent failures, and no effort made to eliminate systemic causes of failure or improve performance through corrective action planning. In the meantime, inmates are subjected to delays and interruptions of treatment, unsanitary conditions, and medication errors.
We note that some of the root cause problems appear to be related to custody control of medical processes within the institution and the apparent reluctance of health staff to openly discuss with custody the need for their cooperation in the process of medication administration. The governing bodies of CQI committees at several facilities were mostly custody-trained staff. This is an impediment to effective monitoring of clinical processes, such as medication treatment. Participation and support of custody staff in CQI is very important; however, medical staff must direct and control the monitoring of health care and be able to drive necessary performance improvements.

Infection Control
Infection control is an essential element of an adequate health care system. The inmate population has a high prevalence of communicable and infectious diseases. Because of the high prevalence of communicable diseases, a highly functioning infection control program must be in place to identify, track, and assist in management of these illnesses.
Approximately 4-6% of TB cases reported in the United States occur among people incarcerated at the time of diagnosis. The incarcerated population contains a high proportion of people at greater risk of TB than the overall population.164 In 2013, there were 36,064 persons with HIV infection in the civilian population of Illinois, with a population over 18 years old of 9.7 million or 0.4% of the population. In 2010-2015, IDOC had 686 inmates with HIV infection or 1.5% of its population.165 The IDOC HIV prevalence was almost four times as high as the civilian HIV prevalence. It is estimated that approximately 160,000 persons in Illinois have hepatitis C or about 1.6% of the Illinois population, as opposed to 5.6% known cases in IDOC and an estimated 10% overall estimated prevalence. The IDOC had at least 3.5-6.25 times the rate of hepatitis C infection of the civilian population. The burden of sexually transmitted disease, MRSA, and scabies are also typically higher in prison systems.
Conditions of confinement promote the spread of disease because of environmental conditions within the prisons. Inmates are housed in close quarters. In our IDOC Prison Overview section we spoke about how crowded the IDOC prisons are. The overcrowded conditions, particularly in antiquated facilities, promote transmission of multiple types of infections and contagious diseases. Individuals have no control over the quality of air they breathe via the facility ventilation system; they live in cells or dormitories that have been occupied by others and are
164 TB in Correctional Facilities in the United States, Centers for Disease Control and Prevention as found at https://www.cdc.gov/tb/topic/populations/correctional/default.htm. 165 HIV in Prisons, 2015 – Statistical Tables , Laura Maruschak and Jennifer Bronson, Ph.D., BJS Statisticians; August 2017, NCJ 250641, US, Department of Justice Bureau of Justice Statistics.

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expected to clean their living area with supplies that are available; they are provided food prepared by inmate workers to eat with silverware and plates cleaned by inmate workers; they are provided linens and clothing that are washed by inmate workers or wash linens themselves with laundry soap that is available; they use toilets, sinks, and showers that are used by many others. Every one of these activities of daily living carries multiple opportunities for communicable or infectious disease transmission and illness for both staff and inmates. Infection control programs in the correctional setting establish and monitor procedures to prevent exposure to diseases that can be transmitted in the correctional setting. Infection control programs also identify sources of infection through screening and take steps to prevent or mitigate infection of others, to treat persons with infectious diseases, and improve the health and safety of staff and inmates by providing information on prevention, education on self-care, and immunizations.166 These efforts require surveillance of disease by accurate statistical means, both for required reporting purposes and so that the IDOC medical program can understand how to study, plan, and prepare for the care they will need to provide. The infection control program is usually coordinated by a registered nurse with consultation from a designated provider with expertise in infectious diseases,167 and supported by data collection methods that can reasonably track diseases within the prison system.
First Court Expert Findings The First Court Expert found IDOC’s infection control program was a moving target across the system, with some facilities having well developed infection control programs and other facilities having programs described as being in their infancy. Facility health care staff had been provided with an exposure control manual, but IDOC provided no oversight of infection control. At some facilities, no one was clearly designated with responsibilities for infection control, and the duties were simply added to those of the HCUA or DON. Other facilities had identified a specific nurse responsible for infection control, but the duties of the position had not been defined. In addition, no training in how to operate an effective infection control program had been provided to those individuals who had been assigned responsibility for infection control.
Examples of systemic issues described by the First Court Expert which occurred as a result of the disarray in infection control monitoring and lack of oversight from IDOC included the failure to launder bed linens of infirmary patients in water temperatures hot enough to destroy pathogens transmitted by blood and body fluids; negative pressure rooms that were not functional and not monitored to ensure that negative pressure was maintained to prevent transmission of airborne illnesses; lack of proper sanitation of medical equipment; and lack of disinfection procedures to provide clean surfaces when examining patients.
Current Findings The systemic issues described in the First Court Expert Report still occur today. While there has been some improvement in the use of paper barriers on examination tables, little else has
166Bick, J. (2006) Infection Control in the Correctional Setting. In M. Puisis, (Ed.) Clinical practice of Correctional Medicine. (2nd ed.) Philadelphia: Mosby Elsevier. 230-231. 167 Lane, M. (2006) The infection control program. In M. Puisis, (Ed.) Clinical practice of Correctional Medicine. (2nd ed.) Philadelphia: Mosby Elsevier. 460-461.

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changed with regard to the infection control program. The following summary of our findings reinforces the findings of the First Court Expert. We had multiple additional findings that give us concern.
The IDOC has had numerous recent outbreaks of contagious and infectious diseases. Since 2008, there have been several outbreaks of scabies in Illinois prisons. The latest was in Taylorville in 2016, in which the prison was locked down and 214 inmates were treated.168 In 2012, a norovirus outbreak sickened 140 inmates at SCC.169 The numbers of inmates affected in these outbreaks reflects poorly on the surveillance and typical preventative measures enacted by infection control procedures to abort the contagion earlier and prevent the widespread infections that occurred at these facilities. An inmate at SCC also contracted Legionnaire’s disease in 2015.170 At the Danville Correctional Center, 78 persons were affected by histoplasmosis in 2013, likely from soil disruption. This outbreak was initially thought to be adenovirus, but required investigation by the federal Centers for Disease Control and Prevention and was found to be histoplasmosis.171, 172
Typically, outbreaks such as these are monitored and sometimes managed by the infection control program. Yet in the IDOC, there was no designated individual responsible for infection control at four of five facilities we visited, including at SCC, where one of the outbreaks described above occurred, as well as the isolated case of Legionnaire’s disease. At SCC, infection control duties were dispersed amongst several staff nurses, the DON, and the HCUA, and the program was not effective. The norovirus outbreak at SCC was large, and typically early infection control measures would be expected to reduce the size of such an outbreak. At the same four facilities there were no schedules for routine sanitation and disinfection of health care areas. Basic maintenance of rooms was lacking. MCC has an extensive collection of policies and procedures that detail cleaning and sanitation of every room in the health care building.
At MCC, responsibility for infection control resides with one of the nursing supervisors. Her responsibilities are managing TB surveillance, performing sanitation inspections, ensuring food handlers are cleared for work, monitoring skin infections, interface with the Illinois Department of Public Health, monitoring negative pressure rooms, and monitoring hygiene in clinical spaces. In addition, she manages HIV and hepatitis C clinics, coordinates follow-up of patients treated for TB infection, and provides supervision of inmate peer educators. It is our opinion that the infection control nurse is an essential component of the health care program at IDOC facilities and is a full-time position.

168 Scabies Outbreak Causes Temporary Lockdown of Taylorville Prison, Doug Finke, The State Journal Register, September 19, 2016. 169 Norovirus Outbreak Hits Illinois Prison; Food Safety News December 29, 2012. 170 Stateville Inmate Diagnosed with Legionnaire’s Disease, Dawn Rhodes, Chicago Tribune August 12, 2015. 171 New details regarding illness among inmates at Danville Correctional Center. Found at https://www2.illinois.gov/idoc/news/2013/pages/danvilleccillness.aspx. 172 Centers for Disease Control and Prevention website Outbreaks and Investigations lists Histoplasmosis in an Illinois Prison. Details given were that this occurred in August-September 2013 with 78 cases and likely related to disruption of soil containing bird droppings. Found at https://www.cdc.gov/fungal/outbreaks/index.html.

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We observed significant challenges to safety and sanitation at every facility visited. For example, at SCC we observed cockroaches, gnats, and flies in the infirmary; the room used for hemodialysis (considered a sterile procedure) had peeling paint on the walls, there was standing water on the floor, and the garbage can was not covered. The kitchen/dining area was occupied by birds, and their droppings were evident on the walls and floors. At Dixon, all three floors of the medical building had missing floor tiles, which is a sanitation issue in an area dedicated to the delivery of health care.
NRC is the only facility among the five we visited that does not conduct monthly safety and sanitation inspections. At the other facilities, safety and sanitation inspections do not adequately identify problems requiring remediation. For example, we found faulty negative pressure isolation rooms and nonfunctional dental equipment that were not identified because they are not included in the safety and sanitation inspections. We also found furniture, equipment, and hard surfaces (floors, ceilings, sinks, cabinetry) were rusted, broken, or deteriorated in health care areas at all facilities, which had not been documented as issues needing repair on safety and sanitation rounds.
Moreover, review of safety and sanitation findings in the minutes of CQI meetings document the persistent failure or lengthy delay in remedying identified problems. Safety and sanitation inspections should inspect or monitor the condition, function, and annual certification of clinical equipment, functionality of the negative pressure rooms, integrity of bed and chair upholstery, completeness of medical cart and emergency response bag logs, the training of health care unit porters, and other health care issues.
The TB prevention and control program in IDOC is not effective. The hallmarks of an effective TB program in correctional facilities are: initial and periodic TB screening, successful treatment of TB disease and infection, appropriate use of airborne precautions, comprehensive discharge planning, and thorough and efficient contact investigation when a case of TB disease is identified.173
At IDOC, TB screening is improperly performed, treatment of infection is delayed, and negative pressure rooms (an airborne precaution) often are not functional or monitored. We did not evaluate TB discharge planning or contact investigation, although in the absence of an individual assigned responsibility for infection control, these interventions are most likely sporadic and haphazard as well. At NRC, nurses do not read tuberculin skin tests properly and only document results in the health record when they have time. Instead of inmates being escorted to the medical clinic for nurses to read their tuberculin skin tests, nurses must go cell to cell. In addition, NRC officers do not open the food port for inmates to extend their arm for nurses to palpate and measure the results of the test. Instead, nurses read the test by looking through the glass window of the cell door, which is inappropriate technique.174 There was
173 TB in Correctional Facilities at https://www.cdc.gov/tb/topic/populations/correctional/, Epidemiology of Tuberculosis in Correctional Facilities 1993-2014 at https://www.cdc.gov/tb/publications/slidesets/correctionalfacilities/default.htm. 174 A tuberculin skin test is read by manually palpating the size of induration of the test site with good overhead lighting. To read a tuberculin skin test through a glass window is inappropriate.

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evidence in the review of records that other sites distrust TB screening performed at reception centers and rescreen inmates upon arrival at their parent facility. We also observed that nurses at Dixon merely look at the skin test site through the cell door rather than palpating and measuring induration in a well-lit area. We did not observe nurses reading tuberculin skin tests at all facilities, but based upon the two sites where we observed poor practices, we conclude that TB screening at IDOC is not adequate.
We reviewed the records of four patients who had completed treatment for latent TB infection. In three cases, the patient was subjected to multiple skin tests (which were positive) and multiple chest radiographs, which were unnecessary, before treatment was finally initiated. In the other case, treatment was initiated even though skin testing was ordered but never completed, based upon a history of a positive skin test reported by the inmate when he requested treatment initiation. Initiation of treatment for latent infection was haphazard and delayed.
Negative pressure isolation rooms were either not functional or the monitor was not working at three of the five sites we visited. At NRC, the monitor in one room was not working and in the other room the vent was taped shut, disabling the negative pressure. At SCC, neither room was functional and the equipment had not been serviced for years. At LCC, two of three rooms were not functional. Negative pressure rooms need to be maintained and ready for use; this is not the case in the IDOC, and places patients and staff at risk of airborne infection.
The UIC provides treatment of inmates with HIV and hepatitis C via telemedicine. For hepatitis C, UIC has no role in managing hepatitis C patients before referral and after antiviral treatment and has no role in screening for these diseases. UIC provides no assistance in managing other complications of hepatitis C including cirrhosis, varices, or ascites as examples. IDOC facility providers are responsible for that care but do not appear to know how to provide it. One or more nurses are designated at each site to coordinate these clinics and the care of these patients. The quality is highly dependent upon the interest and capability of each nurse assigned these responsibilities. There is no one identified to monitor or oversee the work of the clinic coordinators, who must negotiate with all the other users of the telemedicine space to schedule clinics timely. Coordination between the UIC infectious disease specialists and primary care providers is problematic, as evidenced in the example of one patient with HIV; the specialist recommended lowering the patient’s dose of metformin (a medication used to treat diabetes) because of an interaction with one of the HIV medications prescribed.175 The primary care provider at the facility responsible for the patient’s diabetic care never acted on the recommendation. The HIV specialist reduced the dose of metformin at the next visit. The patient was at risk of clinical deterioration because of the primary care provider’s omission for five months.
IDOC has adopted what it describes as opt-out HIV testing at intake, but policy and practice are not consistent with the use of this term. Opt-out testing is recommended by the Centers for

175 Dixon Infection Control Patient #3.

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Disease Control because it supports early identification and treatment.176 The IDOC Administrative Directive still requires that consent be obtained before drawing blood for HIV, and in practice this consent is still obtained.177 The practical effect is that fewer newly arriving inmates are screened for HIV as compared to hepatitis C. The IDOC should revise the Administrative Directive to eliminate the requirement for written consent and initiate opt-out HIV testing.
We also question the effectiveness of periodic screening programs for HIV and hepatitis C infections. We noted on one death review178 a man who was not known to be HIV infected and was not offered HIV screening at two annual health evaluations we reviewed, despite having a history of multiple sexual partners, prior blood transfusions, and a history of sexually transmitted disease all of which were risk factors for HIV infection. He ultimately developed severe HIV disease, which was unrecognized for several years until he was finally admitted to a hospital, where he died of severe complications of his undiagnosed and untreated HIV disease. Sentinel cases such as these should prompt an investigation into why the system failed to timely screen, diagnose, and treat this patient, whose death was preventable. The infection control nurse should monitor results of HIV and HCV screening to verify that policies to screen for communicable diseases are effective.
All five of the facilities visited report cases of culture positive Methicillin-resistant Staphylococcus Aureus (MRSA) as is required by IDOC. However, only MCC tracks all skin and soft tissue infections (independent of whether a culture is performed) as recommended by the First Court Expert. In addition, tracking should include culture and sensitivity results to ensure correct antibiotic selection and housing location of the patient. Infection control nurses should review tracking results to identify clusters of infections by housing unit, perform additional case-finding, and identify environmental factors that may be promoting infection. Factors in correctional settings found to contribute to skin and soft tissue infections include sharing towels and soap, ineffective laundry practices, poor sanitation of exercise equipment and showering facilities, poor hygiene practices, unnoticed infections that leak pus, and poor access to medical care.179 Tracking enables sources of infection to be identified and steps taken to eliminate factors associated with disease transmission. For example, at MCC one of two cases of skin infection reviewed was a patient who developed infection six days after hernia surgery and having been returned immediately to general population at the facility.180 This case of soft tissue skin infection raises questions about the ability of the patient to adhere to wound care instructions and suggests consideration of a policy of admitting inmates to the infirmary only after it is determined that the patient is stable and able to adhere to wound care instructions.

176 Opt-out testing means that testing will be performed unless the patient refuses the test. Opt-in testing means that the patient is offered testing and it is performed only upon patient consent. The IDOC has large rates of refusal of HIV testing, unlike other similar correctional centers that offer opt-out testing. Opt-out testing generally raises the rates of screening. 177 Administrative Directive 04.03.11 Section5 II. F. 5. d. 178 Mortality Review Patient #22. 179 Smith, S. (2013) Infectious Diseases. In L. Schoenly and C. Knox (Eds.) Essentials of Correctional Nursing. New York: Springer. P. 189. 180 MCC Infection Control Patient #7.

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The IDOC requires a monthly report of communicable diseases and infection control data. This report includes items such as the number of MRSA cases, HIV and HCV tests performed, the number of tuberculin skin tests administered, the use of negative pressure rooms, etc. We found that these reports are submitted to the Quality Improvement Committee (QIC) and included in the monthly minutes. However, there is no trending or analysis of infection control data. There is no discussion in the infection control report or CQI minutes of, for example, why only half of incoming inmates are tested for HIV, given the statewide opt-out policy. A more notable example of the lack of introspection about communicable and infectious disease are three needle stick injuries which occurred in 2017 at Dixon, and the fact that there has been no focused review of these injuries to determine what measures would increase worker safety.
We found numerous examples of poor infection control practices on the part of health care professionals. At all facilities, inmates are not routinely provided eye protection during dental procedures. At NRC, the dentist examined patients without changing gloves between patients and reached into a bag of sterile mirrors to select one for use, contaminating all the other mirrors which were then used on subsequent patients. At SCC, the hemodialysis unit does not have a dedicated chair and technician for dialysis of patients who have hepatitis B, thereby exposing other dialysis patients to this blood borne infection. At NRC and SCC, paper barriers are not available to use on any of the examination tables and they are not cleaned between patients. Finally, the order in which instruments were sterilized was incorrect in four of five facilities we visited. The placement of sterilization equipment and procedures should proceed from dirty to sterilized. At four of five facilities we visited, the placement of the ultrasonic cleaner required clean instruments to pass over the dirty area, thus contaminating their sterilization. At SCC, sterilized instruments were removed from their packages and put in an open bin in the trauma room, making them clean, rather than sterile, instruments. The nursing supervisor could not explain why these instruments were clean rather than sterile.
Inmate porters are assigned to work in the health care areas of each of the five facilities we visited. At only two of the facilities had the inmate porters received training in how to clean and sanitize patient care areas, and how to take personal protective measures before working in the health care area. Only two facilities had vaccinated the inmate porters for viral hepatitis. The assignment of untrained and unvaccinated inmates to clean and sanitize health care areas exposes these inmates as well as patients receiving care to several infectious diseases with potentially serious health consequences, and is deliberately reckless.
Infirmary linens are still laundered in residential style washers and dryers at all the facilities we visited, except NRC. At NRC, a log provided by the institution showed water temperatures were less than the 165°F required by AD 05.02.180 about 30% of the days reviewed. Water temperatures were not hot enough to effectively sanitize laundry from the infirmary at any facility we visited. We also observed furniture and equipment throughout each of the health care areas at every facility we visited that was torn, frayed, rusted, and corroded. These objects, including stretchers, exam tables, stools, cabinets, and work surfaces cannot be properly sanitized and are sources of communicable disease in a setting that treats and cares for patients who are ill, medically fragile, and immunocompromised. While some have been

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Case: 1:20-cv-02093 Document #: 2-8 Filed: 04/02/20 Page 1 of 5 PageID #:126
EXHIBIT 9

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Lippert V Jeffreys Consent Decree First Report of the Monitor November 24, 2019
Prepared by: John M. Raba, MD
Monitor
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Table of Contents
I. Overview ………………………………………….Page 2-3 II. Executive Summary……………………................Pages 3-11 III. Provisions of Consent Decree…………………….Pages 11-48
1. Health Care General Provisions………………Pages 11-22 2. Health Care Specific Provisions………………Pages 22-47 3. Staffing Analysis and Implementation Plan….Pages 47-49
I. Overview
The “Lippert v Jeffreys” Consent Decree was approved and signed by Judge Jorge L Alonso on May 9, 2019. John M. Raba, MD was selected as Monitor for the Consent Decree on March 29, 2019 with his IDOC contract being finalized on April 26, 2019. Provision V.G. of the consent decree states that “Every six months for the first two years and yearly thereafter, Defendants shall provide the Monitor and Plaintiffs with a detailed report containing data and information sufficient to evaluate Defendants’ compliance with the Decree and Defendant’s progress towards achieving compliance, with the Parties and Monitor agreeing in advance of the first report on the data and information that must be included in such report.” From May 20, 2019 through October 18, 2019, the monitor submitted requests on twenty separate dates for forty-three individual reports or categories of documents, data and information. The IDOC attorneys and clinical leadership have supplied the monitor with the majority of the requests with only few requests not yet fully received. On November 2, 2019, the monitor also submitted to the IDOC a more detailed comprehensive request for data and information for each and every provision of the consent decree. This comprehensive request will require a notable commitment of time and resources to compile; this additional data and information will provide a basis for the monitor’s second report that will be due in the Spring of 2020.
Since his appointment, the monitor has had regular meetings with IDOC Chief of Health Services (Agency Medical Director) and Deputy Chiefs of Health Services (Deputy Medical Directors) and regular communications with both the Plaintiffs’ and Defendants’ attorneys. The monitor interviewed the IDOC Director, the IDOC Deputy Director of Program & Support Services, the IDOC Electronic Health Record project manager, clinical and administrative leadership of medical/dental care vendor (Wexford Correctional Health Services), and the Rasho Consent Decree monitor.
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concerned that the Collegial Review process presents a barrier to the access to offsite specialty consultation and tests, delays needed consultations, procedures, and testing, potentially puts patient-inmates’ health at risk, and consumes an significant amount of physician, HCUA, medical records staff, Regional Health Coordinator, Agency Medical Director, and Deputy Chief resources. It is the preliminary opinion of the monitor that the Collegial Review should be eliminated and replaced by a selective utilization review process.
The Consent Decree (III.A.3) states that physicians who are not Board Certified (BC) in Internal Medicine, Family Medicine and Emergency Medicine or have not successfully completed a three residency (Board Eligible) in these three clinical fields shall be reviewed to determine whether they are providing a level of care that is consistent with competent BC and BE physicians. The physician credentials spread sheet provided to the monitor on October 14, 2019 revealed that twelve (34%) of the 35 physicians providing primary care in IDOC facilities had not completed a residency in Internal Medicine or Family Medicine (or Emergency Medicine). Seven of these twelve had been trained in non-primary care fields including Anesthesia, General Surgery, Nuclear Medicine/Radiation Therapy, Pediatrics/Neonatology, Surgery, Pathology, and Radiology. Three had only completed rotating general internships and two had not successfully completed their internal medicine residency programs. Methodology is being developed that would objectively determine whether the quality of care provided by these twelve non-Board Certified or non-Board Eligible physicians is safe and clinically appropriate. It is the opinion of the monitor that it is in the best interest of the IDOC patient population that all physicians providing primary care services in the IDOC should have successfully completed residency training programs in adult primary care fields. The only physician hired since the Consent Decree was approved had successfully completed a residency in Internal Medicine. The monitor is very supportive of the Office of Health Services efforts to establish relationships with the primary care training programs at University of Illinois at Chicago Medical Center and the Southern Illinois University School of Medicine that could assist IDOC with delivery of primary care and with future recruitment and retention of physicians with Board Certification or Board Eligibility in Internal Medicine or Family Medicine.
Data sheets provided to the monitor on August 6, 2019 documented that 7,265, nineteen percent (19%) of the IDOC were fifty years of age or older, nearly one thousand (2.6%) were between 65 and 79 years old and 61 were older than eighty years of age. The aging population in the IDOC is placing an increasing burden on the functioning of the correctional facilities and on the correctional health care
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system. Men and women with various types of dementia, cerebrovascular accidents (CVA), advanced cancers, cardiovascular disease, and increasing fragility with risk of falls are housed in many of the IDOC facilities. The infirmaries are becoming filled with patient-inmates who are confused, incontinent, and require assistance with the basic activities of daily living including dressing, feeding, bathing, and toileting. The final staffing analysis will include significant augmentation in nursing personnel and support staff; many of whom will be assigned to infirmaries and geriatric units. The health care and correctional resources including staff, physical space, equipment, onsite support services and offsite specialty consultation, diagnostic testing, and hospitalization required to meet the needs of this aging population is staggering and will only increase if there is not a concerted and strategic effort to comprehensively address this situation. It is the position of the monitor that in the short term additional IDOC resources must be directed to properly house and care for this population but in the near future the IDOC must take the lead to create a pathway to discharge those men and women whose mental and medical conditions make them no longer a risk to society to appropriate settings in the community. This effort will need to include the judicial system, parole boards, influential advocacy groups, state legislatures, the governor’s office, and other entities. It is also the monitor’s position that the IDOC should not attempt to construct large long-length-of-stay skilled nursing or nursing home correctional facilities which would present notable difficulties to meet and maintain state certification standards.
The monitor will be asking the Plaintiffs’ and the Defendants’ legal counsel to modify three sections of the Consent Decree.
1) Provision III.M.2.b: “Federal Bureau of Prisons” should be replaced with “Center for Disease Control Adult Immunization Guidelines”. The Federal Bureau of Prisons’ (FBOP) immunization guidelines are generally aligned with the Center for Disease Control (CDC) guidelines but the FBOP policies are only changed at some length of time after the CDC updates its recommendations. 2) Provision III M. 2.c: The language on the Prostate Specific Antigen (PSA) testing is no longer consistent with the national guidelines and needs to be modified to be in alignment with the recommendations of the United States Preventive Services Task Force (USPSTF) which now recommends that men between the ages of 55 and 69 years be informed of the potential harms and benefits of the PSA testing and allowed to make an individual decision about their preference. Men should not be screened who do not express a preference for PSA screening. Give that national recommendations will invariably change as more research is performed, it
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EXHIBIT 10

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 Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 1 of 28 PageID #:142

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

JAMES MONEY, et al., on behalf of themselves )

and all similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

)

)

J.B. PRITZKER, et al.,

)

)

Defendants.

)

Case No. 20 C 2093

PLAINTIFFS’ MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465

Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411
Sarah Grady Steve Weil Loevy & Loevy 311 North Aberdeen St., 3rd Floor Chicago, IL 60607 (312) 243-5900
Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Ave, Suite 300 Chicago, IL 60602 (312) 341-0022

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TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 CLASS DEFINITION .....................................................................................................................1 BACKGROUND AND SUMMARY OF ARGUMENT ................................................................3 ARGUMENT ...................................................................................................................................6 I. Plaintiffs Satisfy Rule 23(a): They Are Numerous and Raise Common Questions, and the
Named Plaintiffs Are Adequate Representatives With Typical Claims. .................................7 A. Numerosity is Satisfied: The Class and Subclasses Each Include Thousands of
Members. .....................................................................................................................7 B. Commonality is Satisfied: The Legality of IDOC’s Response to the Pandemic
Involves Numerous Common Questions of Fact and Law. .........................................9 C. Typicality is Satisfied: The Named Plaintiffs’ Claims are Representative of Those of
the Class at Large. ......................................................................................................11 D. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class
and Subclasses. ..........................................................................................................14 1. Absence of Conflict within the Class.........................................................................14 2. Adequacy of Representation ......................................................................................19 II. Plaintiffs Satisfy Fed. R. Civ. P. 23(b)(2): This Case Seeks Declaratory and Injunctive Relief from Omissions that Place the Entire Proposed Class at Risk of Serious Illness and Death. ..........................................................................................................................19
CONCLUSION ..............................................................................................................................21
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TABLE OF AUTHORITIES
Cases Abadia-Piexoto v. United States Dep’t of Homeland Sec., 277 F.R.D. 572 (N.D. Cal. 2011) ......14 Anderson v. Garner, 22 F. Supp. 2d 1379, 1385 (N.D. Ga. 1997) ................................................16 Areola v. Godinez, 546 F.3d 788, 798 (7th Cir. 2008) ..................................................................17 Barragan v. Evanger's Dog & Cat Food Co., 259 F.R.D. 330, 333 (N.D. Ill. 2009)....................11 Bradley v. Harrelson, 151 F.R.D. 422, 427 (M.D. Ala. 1993) ......................................................24 Brown v. Plata, 563 U.S. 493, 506 (2011).....................................................................................24 Bruscino v. Carlson, 854 F.2d 162, 164 (7th Cir. 1988) ...............................................................24 Bullock v. Sheahan, 225 F.R.D. 227, 230 (N.D. Ill. 2004) ............................................................17 Butler v. Suffolk Cnty., 289 F.R.D. 80, 98 (E.D.N.Y. 2013)..........................................................14 Coleman v. County of Kane, 196 F.R.D. 505, 507 (N.D. Ill. 2000) ..............................................15 Corey H. v. Bd. of Educ. of City of Chi., 2012 WL 2953217, at *7 (N.D. Ill. Jul. 19, 2012)........15 De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)...............................17 Fonder v. Sheriff of Kankakee County, 2013 WL 5644754, at *6 (C.D. Ill. Oct. 15, 2013) .........16 French v. Owens, 777 F.2d 1250, 1251 (7th Cir. 1985) ................................................................24 Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996) ................................................16, 17 Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011) ..........................................18 Green v. Mansour, 474 U.S. 64 (1985)..........................................................................................17 Hadi v. Horn, 830 F.2d 779, 781 (7th Cir. 1987) ..........................................................................24 Hughes v. Judd, 2013 WL 1821077, at *23 (M.D. Fla. Mar. 27, 2013)........................................14 Ingles v. City of New York, 2003 WL 402565, at *5 (S.D.N.Y. Feb. 20, 2003)............................16 Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 24-25 (2d Cir. 1971)......................16 Johnson v. General Motors Corp., 598 F.2d 432, 435 (5th Cir. 1979) .........................................24 Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 368 (7th Cir. 2012) .................10 Jones 'El v. Berge, 374 F.3d 541 (7th Cir. 2004)...........................................................................24 Jones v. Blinziner, 536 F. Supp. 1181, 1190 (N.D. Ind. 1982)......................................................16 Jones v. Diamond, 519 F.2d 1090, 1097 (5th Cir. 1975)...............................................................24 Jones v. Guzman, 296 F.R.D. 416, 465-66 (E.D. La. 2013) ..........................................................14 Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) .............................................................................24 King v. Kan. City S. Indus., 519 F.2d 20, 25-26 (7th Cir. 1975) ...................................................13 M.D. v. Perry, 294 F.R.D. 7, 35 (S.D. Tex. 2013).........................................................................14 Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979 ............................................................24 Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) .............................................................17 Olson v. Brown, 284 F.R.D. 398, 410-11 (N.D. Ind. 2012).....................................................14, 16 Parish v. Sheriff of Cook County, 2008 WL 4812875, at *4 (N.D. Ill. Oct. 24, 2008) .................17 Parsons v. Ryan, 289 F.R.D. 513, 516-23 (D. Ariz. 2013)............................................................14 Rodriguez v. Swank, 318 F. Supp. 289, 294 (N.D. Ill. 1970) ........................................................18 Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992) ......................................................10, 13 Rosas v. Baca, 2012 WL 2061694, at *3 (C.D. Cal. June 7, 2012)...............................................14 Ross v. Gossett, 2020 WL 1472072, at *3-4 (S.D. Ill. Mar. 26, 2020)..........................................14 Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 374 (1992) ...................................................24 Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D. Ill. 1992) ............................13 Sosna v. Iowa, 419 U.S. 393 (1975) ..............................................................................................16
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Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 4 of 28 PageID #:145
Streeter v. Sheriff of Cook Cty., 256 F.R.D. 609, 612 (N.D. Ill. 2012)....................................11, 17 United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976) ..................................24 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) .....................................................14, 15 Statutes 20 Ill. Admin. Code 107.210 ...............................................................................................7, 19, 26 730 ILCS 5/3-11-1 ................................................................................................................. Passim 730 ILCS 5/5-8A-3(b) .........................................................................................................7, 19, 26 730 ILCS 5/5-8A-3(c) ...............................................................................................................7, 26 730 ILCS 5/5-8A-3(d)....................................................................................................7, 19, 21, 25 730 ILCS 5/5-8A-3(e)..........................................................................................................7, 20, 26
Rules Federal Rule of Civil Procedure 23 ....................................................................................... Passim Other Authorities A. Conte & H. Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002) ...............................24 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart,
https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/(date analysis based on WHO-China Joint Mission Report) ............................................................................13 Elizabth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019) ..........................................................12 Gov. Pritzker, Executive Order 2020-13 (Mar. 26, 2020), available at https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf (last visited Apr. 1, 2020). ...................................................................................................................9 Ill. Dep’t of Corrs., Agency Overview, https://www2.illinois.gov/idoc/aboutus/Pages/IDOCOverview.aspx (last visited Mar. 31, 2020) ..........................................................................................................................................11 Ill. Dep’t of Corrs., COVID-19 Response, (Mar. 31, 2020), https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited Apr. 1, 2020 at 7:00 p.m.). .......................................................................................................................9 Ill. Dep’t of Pub. Health, “Public Officials Announce 461 New Cases of Coronavirus Disease,” (Mar. 30, 2020), available at http://www.dph.illinois.gov/news/public-health-officialsannounce-461-new-cases-coronavirus-disease (last visited Apr. 1, 2020) ..................................5 Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014) .......................................................................................12 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) ..........................................................................................................................................12 William B. Rubenstein, et al., Newberg on Class Actions, § 3:12 (5th ed. 2011).........................11
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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 in an effort to curb the threat of the deadly virus. But people in IDOC custody have no ability to social distance—they are forced to live together most often in small, cramped quarters without the means to practice adequate hygiene. As a result of these conditions, COVID-19 has already begun to claim lives of people in IDOC custody.1 The Defendants have failed to take reasonable measures to stop the spread of COVID-19 by refusing to reduce the number of people living in IDOC custody through the implementation of medical furlough, transfer to electronic monitoring/home detention, and other mechanisms to reduce the prison population. Every single person in IDOC custody faces a substantially increased risk of harm as a result of this failure—even people who lack an available pathway for transfer from prison are harmed because their likelihood of contracting the virus is substantially increased and their ability to access preventative sanitation resources and medical care is adversely affected.
CLASS DEFINITION This federal class action seeks to require the Defendants to mitigate the deadly threat of COVID-19 in Illinois prisons by releasing from physical custody people who are already eligible under existing law for medical furlough, home detention and other forms of transfer with an emphasis on protecting those who are particularly vulnerable due to age, disability and/or medical condition. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs move this Court to enter an order that this case may be maintained as a class action on behalf of: “all people who are
1 Ill. Dep’t of Pub. Health, “Public Officials Announce 461 New Cases of Coronavirus Disease,” (Mar. 30, 2020), available at http://www.dph.illinois.gov/news/public-health-officials-announce-461new-cases-coronavirus-disease (last visited Apr. 1, 2020).
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currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic.”
Plaintiffs’ request for transfer from physical custody is limited to the six subclasses, as defined below:
Subclass 1: People who have serious 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, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
Subclass 2: People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
Subclass 3: People who are 55 years of age and older with less than one year remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(d).
Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e).
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Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c).
Subclass 6: People who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Admin. Code 107.210.
BACKGROUND AND SUMMARY OF ARGUMENT Plaintiffs’ suit for injunctive relief under the Eighth and Fourteenth Amendments, and the Americans with Disabilities Act, arises out of Defendants’ failure to take necessary steps that are readily available to them to protect vulnerable populations from harm. In doing so, Defendants have acted with deliberate indifference to the significant risk of harm posed by the threat of the COVID-19 virus, in violation of Plaintiffs’ constitutional rights. Specifically, Defendants have arbitrarily denied medical furlough, home detention and/or sentencing credit to people who qualify for it and need it to survive, in violation of the Due Process Clause. The IDOC is facing an impending outbreak, the likes of which the IDOC has never seen. COVID-19 has been declared a national pandemic, President Trump has declared a national emergency, and the Governor has issued a proclamation declaring a disaster in the State of Illinois. More than 823,000 people across the globe have been infected and the disease has caused more than 40,500 deaths. Nearly 37,000 people are incarcerated in Illinois, living in close quarters where all aspects of daily life, including healthcare and food service, take place. As with other congregate settings like nursing homes and long-term care facilities, social distancing guidelines can never be fully or effectively implemented in prison. And each day, thousands of staff must come and go from prison facilities, potentially carrying with them the novel coronavirus for days, even weeks, without ever showing symptoms. These settings pose a
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particular risk of spreading the virus, with catastrophic consequences not just to the prisoners and staff, but also to their communities and the hospitals that serve them.
To understand the devastating impact that COVID-19 will have on the Illinois prison system and the communities that house those prisons, one need look no further than Joliet, Illinois. On March 25, 2020, the IDOC announced the first confirmed case of COVID-19 at Stateville Correctional Center. Just five days later, Illinois Department of Public Health Director Dr. Ngozi Ezike announced that twelve prisoners had been hospitalized with confirmed cases of COVID-19, while another 77 prisoners demonstrated symptoms but had not yet been confirmed. That same day, St. Joseph Hospital, where Stateville prisoners had been hospitalized, announced it was “overwhelmed” by inmates suffering from the effects of coronavirus and staff already were “maxed out.” The hospital’s medical director characterized the situation as “a disaster.” The following day, Governor Pritzker confirmed at least one prisoner had died from the virus, while the number of confirmed cases among staff and prisoners continues to grow.
The Governor recently acknowledged that “the vast majority” of those housed within IDOC are in “close proximity and contact with each other in housing units and dining halls,” making them “especially vulnerable to contracting and spreading COVID-19.”2 As of April 1, 2020, there are 52 confirmed individuals in IDOC custody who have COVID-19 in two different correctional facilities (Stateville and North Lawndale ATC) and 25 confirmed staff who have the virus in six different correctional facilities (Stateville NRC, Stateville, Sheridan, Menard, North Lawndale ATC, Joliet Treatment Center, and Crossroads ATC). There are 187 additional
2 Gov. Pritzker, Executive Order 2020-13 (Mar. 26, 2020), available at https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf (last visited Apr. 1, 2020).
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prisoners who were tested and are awaiting results.3 Despite the immense risk posed by this burgeoning outbreak in IDOC facilities, Defendants have deliberately taken little action to protect those in its custody—ensuring that the death toll will continue to rise.
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). 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) the IDOC’s failure to take reasonable measures to reduce IDOC’s population adversely affects the rights of every class member; (c) every member of the class will use similar or overlapping evidence in support of his or her cause of action; and (d) every single member of the class seeks a uniform injunction requiring the Defendants to take immediate actions to institute medical furloughs, utilize home detention/electronic monitoring, and to maximize other release mechanisms to redress class members’ substantial risk of harm from COVID-19. In other words, the named Plaintiffs and the putative class and subclasses share all legal claims, all factual questions are common to the named Plaintiffs and the putative class, and the named Plaintiffs and the class all seek the same injunctive relief.
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). Joinder is impracticable because the number of people in custody exceeds 36,000 on any given day, and each subclass contains hundreds and sometimes thousands of people.
3 Ill. Dep’t of Corrs., COVID-19 Response, (Mar. 31, 2020), https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited Apr. 1, 2020 at 7:00 p.m.).
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The claims of the named Plaintiffs are typical of those of the class as a whole. That typicality stems from their claim that Defendants have placed them at significant risk of harm by failing to take appropriate steps to address the risk of COVID-19 throughout the IDOC.
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, Defendants have 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).
ARGUMENT For a district court to certify a class action, the Named Plaintiffs or the proposed class must satisfy the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a) and at least one requirement of Rule 23(b). Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Because the Named Plaintiffs and 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.
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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 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. IDOC has approximately 36,944

individuals in its custody.4 The threat posed by COVID-19 is such that every person in IDOC

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, which are 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 1 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.

4 Ill. Dep’t of Corrs., Agency Overview, https://www2.illinois.gov/idoc/aboutus/Pages/IDOCOverview.aspx (last visited Mar. 31, 2020).
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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 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.5
According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.”6 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.7 Based 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 is approximately 12,000.
Subclass 2 is comprised of the 4,807 people in IDOC custody who are medically vulnerable to COVID-19 because they are 55 and older. People over the age of 55 face greater chances of serious illness or death from COVID-19. 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 60-69 had a 3.6% mortality rate, and individuals age
5 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).
6 Elizabth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019).
7 Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
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50-59 had a 1.3% mortality rate.8 For individuals age 40-49, the mortality rate was 0.4%, and for individuals 40 years and younger, the mortality rate was as low as 0.2%.9
According to IDOC data, 700 people are over age 55 and have less than one year left on their sentence, comprising Subclass 3; more than 9,000 people comprise Subclass 4, consisting of people eligible for release on home detention; 2,401 people are members of Subclass 5 because they are currently in custody for Class 1 or Class X offenses with less than 90 left to serve; and 5,308 people are eligible to be released in six months and thus members of Subclass 5.
The class and subclasses are clearly too numerous for joinder to be considered practicable.
B. Commonality is Satisfied: The Legality of IDOC’s Response to the Pandemic Involves Numerous Common Questions of Fact and Law.
Rule 23(a)(2) requires that “there are 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
8 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (date analysis based on WHO-China Joint Mission Report).
9 Id.
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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 capacity of a classwide proceeding to generate common answers . . .”) (citations and quotations omitted; emphasis and first ellipsis in original). In numerous 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 Defendants’ systemic failure to implement policies and practices necessary to reduce the number of people in IDOC custody and thus reduce the risk of COVID-19 for all members of the class and subclasses. The questions of law and fact common to the class and each subclass are the following:
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(1) Does COVID-19 present a substantial risk of harm to people in the custody of the Illinois Department of Corrections?
(2) Do Defendants Pritzker and Jeffreys have available to them measures that could reduce the number of people living in IDOC prisons, including those who are especially vulnerable to COVID-19?
(3) Have the Defendants failed to act reasonably to mitigate the spread of COVID-19 and protect those in custody who are vulnerable by not fully utilizing medical furlough, home detention, and other mechanisms to reduce the prison population?
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 the Defendants’ systemic failure to respond reasonably to the deadly threat of COVID19. 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
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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. 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 subclasses as a whole. 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 the IDOC fails to take meaningful action to reduce the in-custody population. Some people, like the medically vulnerable members of Subclasses 1 and 2, face an increased risk of death if they contract the virus. Others, like those in Subclasses 3-5 have statutory pathways to release that the Defendants have arbitrarily failed to implement in violation of their due process rights.
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
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Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 17 of 28 PageID #:158
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. 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).
While members of Subclasses 1-2 have an increased risk of severe illness or death as a result of the threat of COVID-19 and Subclasses 3-5 suffer due process violations, the overarching nature of the threat of COVID-19 to every person confined in IDOC custody is sufficient to satisfy typicality.
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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 ten Named Plaintiffs in this case are set forth below: 1. James Money (S11097) is 28 years old and is housed at Illinois River Correctional Center in Canton, Illinois. In 2016, Mr. Money was diagnosed with Stage 3 metastatic thyroid cancer. He has undergone several surgeries, most recently in January 2020, resulting in the removal of over 80 lymph nodes and a full thyroidectomy, and is now immunocompromised. He was scheduled to begin chemotherapy treatment on March 24, 2020, but IDOC cancelled his treatment, presumably to focus instead on COVID-19. Mr. Money has already served nearly 5 years of his sentence for residential burglary out of Adams County, and he is currently scheduled to be released on June 19, 2020. He is eligible for medical furlough pursuant to 730 ILCS 5/3-11-1 and discretionary good time pursuant to 20 Ill. Adm. Code 107.210. Mr. Money is also within 90 days of his release date, is eligible for release to home detention pursuant to 730 ILCS 5/5-8A-3(b). Mr. Money’s parole conditions have already been
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determined and he is approved to reside with his fiancée’s residence in Warsaw, Illinois. His fiancée is fully prepared to provide for his medical needs. Mr. Money is a member of Subclasses 1, 5, and 6.
2. William Richard (M52774) is 66 years old and lives in the healthcare unit at Dixon Correctional Center. Mr. Richard has COPD, emphysema, and heart disease, and uses a wheelchair for movement. His respiratory disease requires continuous oxygen and a breathing treatment two to three times per day. He shares his roughly 12 feet by 15 feet cell with three other individuals, making social distancing impossible--his bunk is less than 5 feet from his cellmate’s bunk, and all four men share a toilet, sink, and the chuckhole through which they receive their meals. Mr. Richard has less than four months remaining on his sentence, and is eligible under 730 ILCS 5/5-8A-3(d) to transfer to home detention at his mother’s home on electronic monitoring. Mr. Richard is a member of Subclasses 1, 2, 3, and 6.
3. Gerald Reed (N32920) is housed at the Northern Reception Center. He is 57 years old. Mr. Reed has heart failure, hypertension, and is pre-diabetic. Mr. Reed uses a wheelchair for mobility because of a decades-old leg injury that adversely affects his mobility. Within the last year, Mr. Reed has been hospitalized for a heart attack and for pneumonia. At the NRC, he is prohibited from accessing commissary and is only provided a single, small bar of soap. Pursuant to 730 ILCS 5/3-11-1, Mr. Reed is eligible for medical furlough at his mother’s home. Mr. Reed is a member of Subclasses 1 and 2.
4. Amber Watters (Y39454) is 30 years old and is housed at Logan Correctional Center in Lincoln, Illinois. Ms. Watters has neurological complications from a broken back she suffered prior to her incarceration in 2019. Prior to her incarceration, Ms. Watters was the primary caretaker for her three minor children. She is serving two three-year sentences for low
15

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 20 of 28 PageID #:161
level drug offenses out of Livingston County; a Class 4 sentence for possession of heroin, and a Class 2 sentence for possession with the intent to distribute a small amount of heroin. Ms. Watters is scheduled to be released on May 1, 2020, and is eligible under 730 ILCS 5/5-8A-3(e) to transfer to home detention to her mother’s home. Ms. Watters is a member of Subclass 4.
5. Tewkunzi Green (R84568) is housed at Logan Correctional Center in Lincoln, Illinois. She has asthma and severe hypertension for which she takes multiple medications. In January 2019, she fainted related to hypertension and was held in the cardiology unit of an offsite hospital for several days. At Logan, Ms. Green shares a room with three other women. Ms. Green has a pending commutation petition, which was filed by the January 23, 2020, filing deadline; her hearing date of April 7, 2020 was postponed and she is now being scheduled for a non-public hearing. She is also eligible for medical furlough under 730 ILCS 5/3-11-1. Ms. Green has a stable housing plan in that her mother, who owns her own home in Peoria, Illinois, where she also cares for Tewkunzi’s 13-year-old son, is willing and able to receive Ms. Green at any time. Ms. Green is a member of Subclass 1.
6. Danny Labosette (B23629) is currently housed at Robinson Correctional Center in Robinson, Illinois. Mr. Labosette is 56 years old and is a double amputee; his left leg has been amputated above the knee, and his right foot has been amputated. Mr. Labosette uses a wheelchair. Mr. Labosette also has untreated Hepatitis C. Mr. Labosette is housed in the Transitions Unit, a treatment facility within Robinson Correctional Cell. Social distancing is impossible for Mr. Labosette—he resides in a dorm with roughly 20 other men. He sleeps in the bottom bunk of a bunk bed, which is 3 feet away from the neighboring beds. Mr. Labosette has less than six months remaining on his sentence, and is eligible under 730 ILCS 5/5-8A-3(d) to be
16

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 21 of 28 PageID #:162
transferred to home detention at his mother’s home in Florida, which has already been modified to accommodate his disabilities. Mr. Labosette is a member of Subclasses 1, 2, and 3.
7. Carl Reed (R48993) is currently housed at Graham Correctional Center in Hillsboro, Illinois. He is 59 years old and he suffers from chronic kidney disease--requiring dialysis three days per week--diabetes, hypertension, and underlying neurological impairments. A doctor who is an expert in correctional health care has reviewed Mr. Reed’s medical records and recommends his immediate release for Mr. Reed’s health and safety. Mr. Reed has eight years left on his sentence, and he is eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. He has a pending petition for executive clemency, and he has a stable housing plan for his release: he can live with his sister in Chicago. Mr. Reed is a member of Subclasses 1 and 2.
8. Carl “Tay Tay” Tate (R12529) is a 40-year-old transgender woman diagnosed with Gender Dysphoria, who is housed at Danville Correctional Center. Ms. Tate has almost six years left of her sentence to serve. Ms. Tate lives with hypertension, for which she takes medication. Ms. Tate also lives with severe anxiety, and the COVID-19 outbreak has only increased her anxiety. She shares a small cell with one other person. Even with current limits on the number of people in the unit who are allowed out of their cells to use the communal dayroom, Ms. Tate estimates that around 24 people may be in the dayroom at a time. She estimates that around 75 people may be in the yard. Ms. Tate also works as a laundry porter, which places her in frequent contact with other prisoners and staff. She has asked for gloves to use, and has been denied. She has also asked for more cleaning supplies to clean the dayroom, including the phones, and has been denied. It is impossible for Ms. Tate to practice social distancing in her living situation. Ms. Tate has a pending clemency petition--which has the support of 40 organizations across the state--and her hearing date of April 7, 2020 was postponed
17

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 22 of 28 PageID #:163
and is being rescheduled. Ms. Tate has a stable housing plan in place for when she is released: she will live with her sister who resides in Lansing, Illinois. Ms. Tate is a member of Subclass 1.
9. Patrice Daniels (B70662) is 45 years old, serving a life sentence and not eligible for release. He is incarcerated at Joliet Treatment Center. Although this is one of the few facilities that has single occupant cells, he still shares a shower and dayroom with the other residents of this housing unit. Even with current limits on the number of people in the unit who are allowed out of their cells to use the communal dayroom, up to 8 people may be in the dayroom at a time. Mr. Daniels also works as a dietary aide, which places him in frequent contact with other prisoners and staff from outside of his housing unit each day. Mr. Daniels estimates that even with in-unit meal delivery, each person’s meal is handled by approximately 6-8 other people between preparation and delivery. Mr. Daniels describes feeling “like a sitting duck” waiting for the coronavirus to strike. Mr. Daniels is a member of the Class.
10. Anthony Rodesky (R47057) is currently housed at Pontiac Correctional Center in Pontiac, Illinois. He is 49 years old and has diabetes and other chronic health conditions, and in 2015 he had a below-knee amputation. Mr. Rodesky is a New Jersey prisoner who is in Illinois custody pursuant to an interstate compact agreement between New Jersey and Illinois and he is not eligible for release. Mr. Rodesky has ongoing medical needs, and he must interact with Pontiac health care staff at least twice daily, in order to receive his insulin shots. He also must stand next to other prisoners when he leaves his cell to obtain his insulin shots. Mr. Rodesky is deeply fearful of contracting COVID-19 on account of his pre-existing medical vulnerabilities. Even if Mr. Rodesky is not exposed to COVID-19, an outbreak at Pontiac would drain medical resources at Pontiac that he and other prisoners with chronic health conditions rely on for every day survival. Mr. Rodesky is a member of the Class.
18

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 23 of 28 PageID #:164

As set forth above, these Named Plaintiffs and the class members raise the same claims,

which give rise to common questions of fact and law. The class representatives do not have

interests antagonistic to those of the class. Both the representatives and the class members have a

common interest in the reduction of harm posed by COVID-19. There is no suggestion of any

collusion between any of the Named Plaintiffs and any of the named Defendants. Moreover, no

conflicts exist that could hinder the Named Plaintiffs’ ability to pursue this lawsuit vigorously on

behalf of the class. The Named Plaintiffs are committed to a class-wide resolution, and they will

fairly and adequately protect the interests of the class.

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 the Community Justice and Civil Rights Litigation

Clinic at Northwestern Pritzker School of Law, Equip for Equality, Illinois Prison Project, Loevy

& Loevy, the Roderick and Solange MacArthur Justice Center, and Uptown People’s Law

Center. Counsel’s qualifications are more explicitly set forth in the attached declarations.

II.

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

Injunctive Relief from Omissions 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

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

19

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 24 of 28 PageID #:165
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 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.
20

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 25 of 28 PageID #:166
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court certify a class comprised of “all people who are currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic.” The Plaintiff further requests that the Court certifies the following subclasses: Subclass 1: People who have serious 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, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. Subclass 2: People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. Subclass 3: People who are 55 years of age and older with less than one year remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(d). Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e).
21

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 26 of 28 PageID #:167 Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less
than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c).
Subclass 6: People who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Admin. Code 107.210.
Finally, the Plaintiffs request that this Court appoint James Money, William Richard, Gerald Reed, Amber Watters, Tewkunzi Green, Danny Labosette, Carl Reed, Carl “Tay Tay” Tate, Patrice Daniels, and Anthony Rodesky as class representatives for the class, and the subclasses of which they are a member; and that the Court appoint the undersigned attorneys as Class Counsel.
22

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 27 of 28 PageID #:168

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 sheila.bedi@law.northwestern.edu LukeFernbach2021@nlaw.northwestern.edu EmilyGrant2021@nlaw.northwestern.edu ttollner@nlaw.northwestern.edu *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932 vanessa.delvalle@law.northwestern.edu
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465 jennifer@illinoisprisonproject.org

Respectfully submitted,
s/Sheila A. Bedi Sheila A. Bedi
Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411 alan@uplcchicago.org liz@uplcchicago.org
Sarah Grady Steve Weil Loevy & Loevy 311 North Aberdeen St., 3rd Floor Chicago, IL 60607 (312) 243-5900 sarah@loevy.com
Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Ave, Suite 300 Chicago, IL 60602 (312) 341-0022 amanda@equipforequality.org samantha@equipforequality.org

23

Case: 1:20-cv-02093 Document #: 8 Filed: 04/02/20 Page 28 of 28 PageID #:169 CERTIFICATE OF SERVICE
I, Sheila Bedi, an attorney, hereby certify that on April 2, 2020, I caused a copy of the foregoing Plaintiffs’ Motion and Memorandum in Support of Class Certification 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 IDOC’s Chief Legal Counsel, Deputy Legal Counsel for the Office of the Governor, and the Illinois Attorney General’s Chief Deputy.
/s/ Sheila A. Bedi Sheila A. Bedi
24

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 1 of 16 PageID #:170

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

JAMES MONEY, et al., on behalf of themselves)

and all similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

)

Case No.

)

J.B. PRITZKER, et al.,

)

)

Defendants.

)

DECLARATION OF SHEILA A. BEDI

I, Sheila Bedi, 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 and clinical professor at Northwestern Pritzker School of Law in

Chicago, Illinois and Director of the Community Justice Clinic. I submit this

declaration in support of the Plaintiffs' Motion for Class Certification dated April 1,

2020.

2.

Prior to joining the Northwestern Pritzker School of Law in Chicago in September

2012, I served as a deputy legal director of the Southern Poverty Law Center where

I represented people who are imprisoned in federal class action litigation

challenging abusive prison conditions and worked on policy campaigns aimed at

reducing incarceration rates and reforming criminal and juvenile justice systems. I

have participated as counsel in numerous class action lawsuits involving the rights

of people involved with justice systems including : Troupe v. Barbour, No. 3:10-

cv-153 HTW-LRA (S.D. Miss) (class action on behalf of children with mental

health needs who were unlawfully institutionalized or otherwise denied Medicaid

services); E.W. v. Lauderdale County, No. 4:09-cv-137 TSL-LRA (class action on

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 2 of 16 PageID #:171

behalf of children detained in the Lauderdale County Juvenile Detention Center); D.W. v. Harrison County, No. 1:09-cv-267 LG-RHN (S.D. Miss.) (class action on behalf of children detained in the Harrison County Juvenile Detention Center); J.A. v. Barbour, No. 3:07-cv-00394, (S.D. Miss) (class action on behalf of children incarcerated at the Columbia Training School); K.L.W. v. James, No. 04-CV-149, (S.D. Miss.) (class action on behalf of children incarcerated at the Columbia Training School); Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss. 1977) (monitoring State of Mississippi’s compliance with judgment in conditions case on behalf of a class of incarcerated youth at Oakley Training School); and Baker v. Campbell, No. CV-03-1114-M (N.D. Ala.) (class action on behalf of chronically ill prisoners at Alabama correctional facility).

3.

Since 2012, I have worked on a number of class actions involving the rights of

justice-involved people in the Chicago area including King v. Walker, No. 06cv204

(N.D. Ill), M.H. v. Monreal et al., No. 12cv8523 (N.D. Ill.), Morales v. Monreal,

No. 13CV7572 (N.D. Ill) (class actions on behalf of parolees from Cook County)

and Campbell v. City of Chicago. No. 17-cv-4467 (N.D. Ill (class action on behalf

of people subjected to excessive force by the Chicago Police Department.); Catalan

Ramirez v. Wong, No. 17-cv-3258 (N.D. Ill) and Pedrote-Salinas v. Johnson, No.

17cv5093 (N.D. Il)( challenges to the Chicago Police Department’s gang database)

4.

Counsel are prepared to retain highly qualified experts and to undertake the other

necessary litigation expenses on behalf of the Plaintiffs and the proposed class

5.

I am a member in good standing of the bar of the State of Illinois.

6.

The legal team has secured sufficient funds to finance the costs of this litigation.

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 3 of 16 PageID #:172
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 1, 2020 in Chicago, Illinois.
Sheila A. Bedi

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 4 of 16 PageID #:173

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

JAMES MONEY, et al., on behalf of themselves)

and all similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

)

Case No.

)

J.B. PRITZKER, et al.,

)

)

Defendants.

)

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 and the founder of the firm’s

Prisoners’ Rights Project.

3. 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.

4. 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 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

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 5 of 16 PageID #:174
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).
5. I have personally been appointed as class counsel in two cases, both of which focus on the constitutional rights of prisoners in IDOC custody: 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), and Ross v. Gossett, No. 15 C 0309 (S.D. Ill.) (class action alleging unconstitutional shakedown procedures at four downstate Illinois prisons).
6. To date, myself and the other attorneys who seek appointment as class counsel have diligently investigated and prosecuted Plaintiffs’ claims in this matter, and will continue to do so throughout its pendency.
7. Counsel are prepared to retain highly qualified experts and to undertake the other necessary litigation expenses on behalf of the Plaintiffs and the proposed class.
8. I am a member in good standing of the bar of the State of Illinois.

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 6 of 16 PageID #:175 I declare under penalty of perjury that the foregoing is true and correct. Executed on April 1, 2020 in Chicago, Illinois.
Sarah Grady

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 7 of 16 PageID #:176

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

JAMES MONEY, et al., on behalf of themselves )

and all similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

)

)

J.B. PRITZKER, et al.,

)

Defendants.

)

Case No. )

DECLARATION OF AMANDA ANTHOLT 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 have been a licensed attorney in the State of Illinois since 2002. I am admitted to

practice in the U.S. District Courts for the Northern District of Illinois, the Central District of

Illinois, the Southern District of Illinois, the Northern District of Indiana, and the Seventh Circuit

Court of Appeals. I am a member of the District Court’s Federal Trial Bar.

3. I am a Senior Attorney in the Civil Rights Team at Equip for Equality, a nonprofit

disability rights organization, where I specialize in complex civil rights litigation. Prior to joining

Equip for Equality, I spent twelve years in private practice specializing in civil rights litigation,

first with Loevy & Loevy and then for six years as a partner in my own firm, Smith, Johnson &

Antholt, LLC.

4. I am lead counsel for Equip for Equality on the Rasho v. Jeffries class action,

which seeks to improve the mental health treatment and conditions for the more than 13,000

prisoners with mental illness in Illinois. During the course of my work on the Rasho litigation,

we reached a settlement agreement in 2016 but returned to the district court for enforcement in

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 8 of 16 PageID #:177
2018, obtaining both a preliminary injunction and then a statewide permanent injunction for improvements to the mental health systems in all Illinois prisons. The case remains in enforcement proceedings, with a motion to hold the state in contempt of court for violating the injunctive relief order in the district court, as well as an appeal over that same order pending the Seventh Circuit Court of Appeals. I am centrally involved in all of those efforts.
5. Among other complex civil rights matters, in an Olmstead consent decree case, Ligas v. Norwood, No. 05 C. 4331 (N.D. Ill.), I briefed and argued a successful enforcement action in which the court found violations of the consent decree impacting the provision of services to people with developmental disabilities throughout Illinois. Equip for Equality is extensively involved in numerous complex class actions matters relating to the civil rights of people with disabilities throughout Illinois.
6. I have served as lead counsel on numerous federal civil rights cases from 2002 to date. I have also taught law school courses on federal civil rights litigation as an adjunct professor, including Section 1983 Litigation at the University of Wisconsin Law School and a practice skills course entitled Police Misconduct Litigation at the Chicago-Kent College of Law.
7. To date, myself and the other attorneys who seek appointment as class counsel have diligently investigated and prosecuted Plaintiffs’ claims in this matter, and will continue to do so throughout its pendency.
8. Counsel are prepared to retain highly qualified experts and to undertake the other necessary litigation expenses on behalf of the Plaintiffs and the proposed class
9. I am a member in good standing of the bar of the State of Illinois.

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 9 of 16 PageID #:178
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 1, 2020 in Chicago, Illinois.
_____________________ Amanda Antholt

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 10 of 16 PageID #:179

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

JAMES MONEY, et al., on behalf of themselves )

and all similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

)

)

J.B. PRITZKER, et al.,

)

Defendants.

)

Case No. )

DECLARATION OF ALAN MILLS
I am the Executive Director of Uptown People’s Law Center, a not-for-profit legal clinic which represents poor and working people in Chicago’s Uptown community, as well in similar communities citywide. The Law Center has three principle areas of work: representing tenants in eviction cases or other cases relating to their housing; representing people seeking public benefits (primarily, but not exclusively, those who are disabled), and representing prisoners in Illinois in civil rights cases challenging their conditions of confinement. Since I joined UPLC in 1991, I have continuously represented prisoners in civil rights cases in a wide variety of federal and state courts.
The following is a list of the prison-related civil rights class action cases in which I have served as counsel for the plaintiff class:
1. Westefer v. Snyder, 725 F. Supp. 2d 735 (S.D. Ill. 2010), a class action alleging that Illinois prisoners were transferred to IDOC’s supermax prison (Tamms Correctional Center) without due process of law;
2. Rasho v. Walker, No. 07-1298 (C.D. Ill.), a class action currently pending before the Honorable Michael Mihm, alleging that IDOC prisoners with mental illness are not provided treatment which meets the minimum standards required by the Eighth Amendment;
3. Lippert v. Ghosh, No. 10-4603 (N.D. Ill.), a class action currently pending before the Honorable Jorge Alonso, alleging that IDOC prisoners with serious medical needs are not provided treatment that meets the minimum standards required by the Eighth Amendment
4. Holmes v. Godinez, No. 11-2961 (N.D. Ill.), a class action settled in 2018 alleging that IDOC prisoners who are deaf and hard of hearing are not provided accommodations, as required under, inter alia the Americans with Disability Act;
5. M.H. v. Monreal, No. 12-8523 (N.D. Ill.), a class action settled in 2015, alleging that IDOC and the Illinois Prisoner Review Board violated due process of juvenile parolees by not providing lawyers in parole revocation hearings.

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 11 of 16 PageID #:180
6. Morales v. Monreal, No. 13-7527 (N.D. Ill.) a class action settled in 2016, alleging that IDOC and the Illinois Prisoner Review Board violated due process of parolees by not providing lawyers in parole revocation hearings.
7. Ross v. Gossett, No. 15 C 309 (S.D. Ill.) a classaction pending before the Honorable Staci Yandle, alleging that corrections officers known as the “orange crush” conducted abusive searches in violation of the Eighth Amendment in four southern Illinois prisons. The order grating class certification and appointing me as one of the class counsel was entered on March 26, 2020.
In addition, I am seeking to be appointed one of the class counsel in the following pending case:
8. Davis v. Baldwin, No. 16-600 (S.D. Ill.), a putative class action currently pending before the Honorable Beatty alleging that IDOC’s use of extreme isolation violates the Eighth Amendment.
I also provide training, research assistance, and generally act as a resource for attorneys who accept prisoner cases pro-bono, including court-appointed prisoner cases in the Northern and Southern District Courts. I am also an Adjunct Professor at Northwestern University School of Law, where I have taught a seminar on Prisons and Prisoner’s Rights for more than 10 years.
I affirm that the foregoing are true and correct under penalty of perjury.
s/Alan Mills______________

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 12 of 16 PageID #:181

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

JAMES MONEY, et al., on behalf of themselves)

and all similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

)

Case No.

)

J.B. PRITZKER, et al.,

)

)

Defendants.

)

DECLARATION OF VANESSA del VALLE

I, Vanessa del Valle, 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 and clinical professor at Northwestern Pritzker School of Law in Chicago, Illinois and an attorney with the Roderick and Solange MacArthur Justice Center (MJC). I submit this declaration in support of the Plaintiffs' Motion for Class Certification dated April 1, 2020.
2. I was appointed a faculty member of the Northwestern Pritzker School of Law and joined the staff of MJC in 2015, after completing a two-year clerkship for then Chief Judge Reuben Castillo of the Federal District Court for the Northern District of Illinois.
3. The MJC is a national civil rights law firm that has officers in multiple states and focuses on complex civil rights litigation most frequently related to the criminal justice system.
4. Since joining MJC, I have focused my practice almost exclusively on federal civil rights litigation relating to prison and jail conditions throughout the state of Illinois. As a result, I have developed expertise related to the policies and practices of Illinois prison and jails and developed significant experience litigating against these entities. I also have experience litigating class actions involving the rights of justice-involved people.

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 13 of 16 PageID #:182
5. My litigation experience includes M.H. v. Monreal et al., No. 12cv8523 (N.D. Ill.), Morales v. Monreal, No. 13 C 7572 (N.D. Ill.) (class actions on behalf of parolees from Cook County) and Campbell v. City of Chicago. No. 17 C 4467 (N.D. Ill.) (class action on behalf of people subjected to excessive force by the Chicago Police Department); Catalan Ramirez v. Wong, No. 17 C 3258 (N.D. Ill.) and Pedrote-Salinas v. Johnson, No. 17 C 5093 (N.D. Ill.) (challenges to the Chicago Police Department’s gang database); Chicagoans for an End to the Gang Database et al v. City of Chicago, No. 18 C 4242 (N.D. Ill.) (represented individuals and organizations, including Organized Communities Against Deportation and BYP 100 Chicago, in city-wide class action challenging CPD’s use of gang databases as unconstitutional and discriminatory); Hampton v. Baldwin, No. 18 C 550, (S.D. Ill.) (represented transwoman in Illinois Department of Corrections’ custody in series of lawsuits seeking redress for the sexual violence she survived and her transfer to the women’s division.); Corbier v. Watson, Stidimire v. Watson, White v. Watson (S.D. Ill.)(represented three families who lost sons/brothers to suicides that occurred in the St. Clair County Jail, challenging the jails’ deficient policies and practices related to mental health and suicide prevention).
6. The Macarthur Justice Center has dedicated and will continue to commit major staffing and material resources to the representation of this class.
7. Counsel are prepared to retain highly qualified experts and to undertake the other necessary litigation expenses on behalf of the Plaintiffs and the proposed class
8. I am a member in good standing of the bar of the State of Illinois.

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 14 of 16 PageID #:183
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 1, 2020 in Chicago, Illinois.
s/Vanessa del Valle Vanessa del Valle

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 15 of 16 PageID #:184

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

JAMES MONEY, et al., on behalf of themselves )

and all similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

)

)

J.B. PRITZKER, et al.,

)

)

Defendants.

)

Case No.

DECLARATION OF JENNIFER SOBLE

I, Jennifer Soble, 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 and the Executive Director of the Illinois Prison Project. I submit

this declaration in support of the Plaintiffs' Motion for Class Certification dated April

1, 2020.

2.

Prior to founding the Illinois Prison Project in 2019, I was a criminal defense

attorney representing indigent defendants for over a decade. I served as a federal

defender in the Northern District of Indiana, where I represented hundreds of

defendants facing federal felony charges. I also led that district’s representation of

petitioners after the Supreme Court’s decision in Johnson v. United States, and

represented hundreds of federal habeas petitioners in the district court and Seventh

Circuit Court of Appeals.

3.

Prior to serving as a federal defender, from 2012 to 2013, I was a visiting assistant

clinical professor at the Northwestern Pritzker School of Law in Chicago, where I

Case: 1:20-cv-02093 Document #: 8-1 Filed: 04/02/20 Page 16 of 16 PageID #:185

represented indigent juveniles and adult facing serious felony charges, and in postconviction proceedings.

4.

I served as a public defender with the Public Defenders Service for the District of

Columbia from 2007 to 2012, where I represented hundreds of juvenile and adult

defendants facing serious felony charges, and took over twenty cases to trial.

5.

Plaintiffs’ litigation team includes several highly experienced lawyers who have

dedicated and will continue to commit major staffing and material resources to the

representation of this class.

6.

Counsel are prepared to retain highly qualified experts and to undertake the other

necessary litigation expenses on behalf of the Plaintiffs and the proposed class

7.

I am a member in good standing of the bar of the State of Illinois.

8.

The legal team has secured sufficient funds to finance the costs of this litigation.

I declare under penalty of perjury that the foregoing is true and correct. Executed on April 1, 2020 in Chicago, Illinois.

/s/ Jennifer Soble Jennifer Soble

 
 Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 1 of 73 PageID #:186

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

JAMES MONEY, et al., on behalf of themselves )

and all similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

)

)

J.B. PRITZKER, et al.,

)

)

Defendants.

)

Case No. 20 C 2093 (Also Filed in Case. No. 20 C 1792)

PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465

Sarah Grady Steve Weil Loevy & Loevy 311 North Aberdeen St., 3rd Floor Chicago, IL 60607 (312) 243-5900
Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411
Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Ave, Suite 300 Chicago, IL 60602 (312) 341-0022

Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 2 of 73 PageID #:187
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................2 I. The COVID-19 Outbreak Has Created a National and Global Health Emergency.............2 II. Incarcerated People Are Particularly Vulnerable to Infection from COVID-19 .................9 III. Reducing the Prison Population Is the Only Meaningfully Means to Prevent the Harm
Caused by COVID-19 in Prisons and their Surrounding Communities ............................14 IV. IDOC and Governor Pritzker Are Failing to Take Necessary Precautions to Reduce the
Spread of COVID-19 Within Prisons and Their Surrounding Communities, Placing People at an Increased Risk ...............................................................................................25 V. IDOC’s Medical Care Program is Gravely Under-Resourced and Under- Functioning, and Is Not Capable of Managing COVID-19 ....................................................................31 VI. Many of the Named Plaintiffs Are Vulnerable Prisoners Who, If Exposed To the Virus, Would Likely Suffer Severe Illness or Death ....................................................................33 NOTICE TO DEFENDANTS .......................................................................................................37 ARGUMENT .................................................................................................................................38 I. Plaintiffs Are Likely to Succeed on the Merits of Establishing a Constitutional Violation ............................................................................................................................40 A. Plaintiffs Are Likely to Succeed on the Merits on Their Constitutional
Claims ....................................................................................................................40 B. Plaintiffs Are Likely to Succeed on the Merits on Their ADA Claims for
Subclass 1...............................................................................................................46 1. The IDOC Must Provide Reasonable Modifications to Prevent
Discrimination Against People With Disabilities (Subclass 1) .................47 2. The IDOC Must Provide the Reasonable Modifications to Avoid the
Disparate Harm to People With Disabilities (Subclasses 1 and 2) ............48 II. Infection With a Lethal Virus That Lacks Any Vaccine or Cure Constitutes Irreparable
Harm ..................................................................................................................................49
i

Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 3 of 73 PageID #:188 III. There is a Strong Public Interest in Minimizing the Spread of COVID-19 Through Social
Distancing and Hygiene Practices That Are Impossible in IDOC Prisons ........................51 IV. The Balance of Equities Favors Releasing Vulnerable Plaintiffs Over Continued
Detention in the Midst of this Public Health Crisis ...........................................................53 V. This Court Should Not Require Plaintiffs to Provide Security Prior to Issuing a
Temporary Restraining Order ............................................................................................55 CONCLUSION ..............................................................................................................................55
ii

Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 4 of 73 PageID #:189
TABLE OF AUTHORITIES Aon Risk Servs. Cos. v. Alliant Ins. Servs., Inc., 415 F. Supp. 3d 843 (N.D. Ill. 2019).................39 Austin v. Pa. Dep’t of Corr., 1992 WL 277511 (E.D. Pa. Sept. 29, 1992)....................................50 Basank, et al. v. Decker, et al., No. 20 C 2518, Dkt. 11 (S.D.N.Y. Mar. 26, 2020)......................44 Boone v. Brown, 2005 WL 2006997 (D.N.J. Aug. 22, 2005)........................................................50 Brown v. Plata, 563 U.S. 493 (2011).............................................................................................39 Complete Angler, L.L.C. v. City of Clearwater, 607 F.Supp.2d 1326 (M.D. Fla. 2009).............. 55 Coronel, et al. v. Decker, et al., No. 20 C 2472, Dkt. 26 (S.D.N.Y. Mar. 27, 2020) ..............44, 50 Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) ..........................................................................55 Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................................40 Flores, et al. v. Barr, et al., No. 85 C 4544, Dkt. 740 (Mar. 28, 2020) .........................................44 Frullati Franchise Sys., Inc. v. Dana Areece & Co., 2001 WL 743427
(N.D. Ill. June 28, 2001) ....................................................................................................38 Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079
(7th Cir. 2008)................................................................................................................... 49 Gray v. Hardy, 826 F.3d 1000 (7th Cir. 2016) ..............................................................................41 Green River Bottling Co. v. Green River Corp., 997 F.2d 359 (7th Cir. 1993).............................38 Helling v. McKinney, 509 U.S. 25 (1993)......................................................................................41 Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721
(7th Cir. 2009)................................................................................................................... 39 Hutto v. Finney, 437 U.S. 678 (1978)............................................................................................39 Joelner v. Vill. of Washington Park, Ill., 378 F.3d 613 (7th Cir. 2004) ....................................... 51 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) ...............................................................................50 Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001) ...................................................... 39 Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.) .........................................................................31, 32
iii

Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 5 of 73 PageID #:190
McCoy v. Tex. Dep’t Crim. Justice, 2006 WL 2331055 (S.D. Tex. Aug. 9, 2006) .......................48 McDonald v. Hardy, 821 F.3d 882 (7th Cir. 2016) ...................................................................... 41 Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765 (7th Cir. 2011) ........................................38 Newsom v. Albemarle County Sch. Bd., 354 F.3d 249 (4th Cir.2003).......................................... 51 Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775
(7th Cir. 2002)....................................................................................................................46 Orr v. Shicker, ___ F.3d ___, 2020 WL 1329659 (7th Cir. Mar. 23, 2020)................................. 49 Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206 (1998) ......................................................................47 Pocklington v. O'Leary, 1986 WL 5748 (N.D. Ill. May 6, 1986)..................................................55 Powers v. Snyder, 484 F.3d 929 (7th Cir. 2007)............................................................................41 Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978)................................................................49, 51 Raytheon Co. v. Hernandez, 540 U.S. 44 (2003)...........................................................................48 Swan v. Bd. of Educ., No. 13 C 3623, 2013 WL 3872799 (N.D. Ill. July 25, 2013) .................... 48 Thaker, et al. v. Doll, et al., No. 20 C 0480, Dkt. 47 (M.D. Pa. Mar. 31, 2020) ...........................50 Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840 (7th Cir. 1999) .........................51 Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) ........38 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) .............................................................38 Wisc. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006) ...............................48
STATUTES 28 C.F.R. § 35.130(b)(7)..........................................................................................................46, 47 42 U.S.C. § 12102(2) .....................................................................................................................46 42 U.S.C. § 12132..........................................................................................................................46 730 ILCS 5/3-11-1 ................................................................................................................. passim 730 ILCS 5/3-11-1(a)(2) ..........................................................................................................28, 45
iv

Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 6 of 73 PageID #:191 730 ILCS 5/5-8A-3(b)..............................................................................................................29, 34 730 ILCS 5/5-8A-3(c)....................................................................................................................29 730 ILCS 5/5-8A-3(d)..................................................................................................29, 30, 35, 36 730 ILCS 5/5-8A-3(e)....................................................................................................................29
v

Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 7 of 73 PageID #:192
OTHER AUTHORITIES
AMEND. COVID-19 in Correctional Settings: Unique Challenges and Proposed Responses” (March 23, 2020), https://amend.us/wp-content/uploads/2020/03/COVID-in-CorrectionsChallenges-and-Solutions-1.pdf.....................................................................................................11
Bailey, Briana. DOC Stops Accepting Newly Sentenced State Prisoners, The Frontier (Mar. 22, 2020), https://www.enidnews.com/news/local_news/doc-stops-accepting-newly-sentenced-stateprisoners/article_ea6a42a4-47c1-5dbc-9446-5dec46032c5d.html ................................................20
Barry, Kyle C. Some Supreme Courts Are Helping Shrink Jails To Stop Outbreaks. Others Are Lagging Behind, The Appeal (Mar. 25, 2020), available at https://theappeal.org/politicalreport/some-supreme-courts-are-helping-shrink-jails-coronavirus/ ... ..................................................................................................................................................24, 25
Baumgarten, April. North Dakota paroles 56 prisoners early amid pandemic, including 3 convicted of sexual assault, Grand Forks Herald (Mar. 20, 2020), https://www.grandforksherald.com/news/crime-and-courts/5009882-North-Dakota-paroles-56prisoners-early-amid-pandemic-including-3-convicted-of-sexual-assault ....................................18
Beatty, Donald W. Memorandum. Chief Justice of South Carolina Supreme Court, to Magistrates, Municipal Judges, and Summary Court Staff (Mar. 16, 2020), available at https://www.sccourts.org/whatsnew/displayWhatsNew.cfm?indexId=2461 ................................24
Billeaud, Jacques. Tucson lawyers seek release of nonviolent inmates from jail, Tucson.com (Mar. 24, 2020), available at https://tucson.com/news/local/crime-and-courts/tucson-lawyersseek-release-of-nonviolent-inmates-from-jail/article_0cd49be4-6dd6-11ea-99d3576d60e1dae5.html ........................................................................................................................21
Branch, Kayla. Coronavirus in Oklahoma: Over 200 nonviolent offenders released from Oklahoma County jail to limit COVID-19 spread, The Oklahoman (Mar. 25, 2020), available at https://oklahoman.com/article/5658504/coronavirus-in-oklahoma-over-200-non-violentoffenders-released-from-oklahoma-county-jail-to-limit-covid-19-spread ....................................22
Buffon, Scott. Coconino County jail releases nonviolent inmates in light of coronavirus concerns, Arizona Daily Sun (Mar. 20, 2020), available at https://azdailysun.com/news/local/coconino-county-jail-releases-nonviolent-inmates-in-light-ofcoronavirus-concerns/article_a6046904-18ff-532a-9dba-54a58862c50b.html .............................21
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., available at https://wwwnc.cdc.gov/eid/article/26/6/20-0412_article................................................................ 4
Carissimo, Justin. 1,700 inmates released from Los Angeles County in response to coronavirus outbreak, CBS News (Mar. 24, 2020), available at https://www.cbsnews.com/news/inmatesreleased-los-angeles-county-coronavirus-response-2020-03-24/ ..................................................20
vi

Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 8 of 73 PageID #:193
CDC. 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-inus.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fcases-in-us.html) ...............................................................................................................3
CDC. 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-readyfor-covid-19.html .............................................................................................................................8
CDC. Coronavirus Disease 2019 (COVID-19): How Coronavirus Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html........ 8
CDC. Coronavirus Disease 2019 (COVID-19): How It Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Ftransmission.html ......................................................................................... 5
CDC. Coronavirus Disease 2019 (COVID-19): How to Protect Yourself, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2 019-ncov%2Fprepare%2Fprevention.html ..................................................................................... 7
CDC. Coronavirus Disease 2019 (COVID-19): People Who Need Extra Precautions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fspecific-groups%2Fhigh-risk-complications.html .......................................................... 6
CDC. Coronavirus Disease 2019 (COVID-19): Situation Summary, CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html.................................. 7
CDC. Coronavirus Disease 2019 (COVID-19), Symptoms of Coronavirus, CDC, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html...........................4
Cheves, John. Chief justice pleads for Kentucky inmate releases ahead of COVID-19, but progress slow, Lexington Herald Leader (Mar. 23, 2020), available at https://www.kentucky.com/news/coronavirus/article241428266.html .........................................23
State of Colorado, Executive Order D 2020 016, March 25, 2020, at pg. 2, available at https://drive.google.com/file/d/18o0yWHzZleHJ87hmgLuBmXwpM8R74Q5x/view ............... 19
Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) H.R. 748, at 633 (2020), available at https://assets.documentcloud.org/documents/6819239/FINAL-FINAL-CARESACT.pdf ........................................................................................................................................17
vii

Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 9 of 73 PageID #:194
Circuit Court of Cook County, Administrative Order 2020-01 (amended Mar. 30, 2020), http://www.cookcountycourt.org/Portals/0/Order%203-30-20.pdf ................................................9
Dehghanpisheh, Babak. Iran Temporarily Releases 70,000 Prisoners As Coronavirus Cases Surge, Reuters (Mar. 9, 2020), available at https://www.reuters.com/article/us-healthcoronavirus-iran/iran-temporarily-releases-70000-prisoners-ascoronavirus-cases-surgeidUSKBN20W1E5........................................................................................................................ 17
Drew, Karen. Metro Detroit county jails reviewing cases to see which inmates could be released amid coronavirus (COVID-19) outbreak, Click On Detroit (Mar. 24, 2020), available at https://www.clickondetroit.com/news/defenders/2020/03/25/metro-detroit-county-jailsreviewing-cases-to-see-which-inmates-could-be-released-amid-coronavirus-covid-19-outbreak/ (the two counties combined released more than 440 individuals).................................................23
Evers, Governor Tony. Emergency Order # 9, Order to the Dep’t of Corrections, Tony Evers, Gov. Wisconsin (Mar. 20, 2020) ...................................................................................................20
Ezike, Dr. Ngozi. IDPH, COVID-19 Press Update, 23:30–23:48 (Mar. 30, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-zlist/coronavirus/media-publications/daily-press-briefings .............................................................42
Ezike, Dr. Ngozi. IDPH, COVID-19 Press Update Video, at 11:33-11:56 (Mar. 29, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-zlist/coronavirus/media-publications/daily-press-briefings .............................................................43
Fair and Just Prosecution, Joint Statement from Elected Prosecutors on COVID19 and Addressing the Rights and Needs of Those in Custody (Mar. 2020), https://fairandjustprosecution.org/wp-content/uploads/2020/03/Coronavirus-Sign-On-Letter.pdf ........................................................................................................................................................18
Fink, Sheri. Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times, (Mar. 13, 2020), available at https://www.nytimes.com/2020/03/13/us/coronavirus-deathsestimate.html ....................................................................................................................................3
George Washington University Hospital, GW Hospital Uses Innovative VR Technology to Assess Its First COVID-19 Patient, https://www.gwhospital.com/resources/podcasts/covid19-vrtechnology ........................................................................................................................................7
Goudie, Chuck, Markoff, Barb, Tressel, & Wediner, Ross. abc7 Chicago, Illinois Prisoners Sick with COVID-19 Overwhelm Joliet Hospital (video), available at https://abc7chicago.com/health/illinois-prisoners-sick-with-covid-19-overwhelm-joliethospital/6064085/ ...........................................................................................................................13
The Governor’s Press Conferences are available for streaming at: https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefing-from-illinoishealth-officials/2234359/ (last visited March 31, 2020)................................................................30
viii

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Gubernatorial Disaster Proclamation, available at https://www2.illinois.gov/sites/gov/Documents/APPROVED%20%20Coronavirus%20Disaster%20Proc%20WORD.pdf ................................................................ 3
Helmer, Katrina. Metro Corrections releasing non-violent inmates to prevent coronavirus spread, WDRB.com (Mar. 18, 2020), available at https://www.wdrb.com/news/metrocorrections-releasing-non-violent-inmates-to-prevent-coronavirus-spread/article_0fbed080-696811ea-ada1-f73b721440b2.html ..................................................................................................... 23
Heye, Bob. Coronavirus and Crime: Jail releases, a rash of break-ins and one encouraging trend, KATU (Mar. 23, 2020), available at https://katu.com/news/coronavirus/coronavirus-andcrime-jail-releases-a-rash-of-break-ins-and-one-encouraging-trend ............................................ 21
Higgins-Dunn,Noah. Coronavirus: New York City to release 300 nonviolence inmates from Rikers Island, CNBC (Mar. 24, 2020) https://www.cnbc.com/2020/03/24/coronavirus-new-yorkcity-to-release-300-nonviolent-inmates-from-rikers-island.html ................................................. 23
Hoerner, Emily. Edlerly inmates are at high risk for coronavirus. Why are there so many of them in Illinois’s prisons?, InjusticeWatch, available at https://www.injusticewatch.org/news/2020/elderly-inmates-are-at-high-risk-for-coronaviruswhy-are-there-so-many-of-them-in-illinoiss-prisons/............................................................. 26, 53
Illinois Department of Corrections. COVID-19 Response, Illinois Department of Correction, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx...................................... 53
IDPH. Coronavirus Disease 2019 (COVID-19), Ill. Dept. of Pub. Health, http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus
IDPH, Public Health Officials Announce 461 New Cases of Coronavirus Disease, (Mar. 30, 2020), available at http://www.dph.illinois.gov/news/public-health-officials-announce-461-newcases-coronavirus-disease ....................................................................................................3, 42, 43
IDPH, Public Health Officials Announce 330 New Cases of Coronavirus Disease, (Mar. 25, 2020, available at http://www.dph.illinois.gov/news/public-health-officials-announce-330-newcases-coronavirus-disease ..............................................................................................................52
Illinois Prisoners Sick with COVID-19 “Overwhelm” Joliet Hospital, ABC 7 NEWS, (Mar. 30, 2020), available at https://abc7chicago.com/health/illinois-prisoners-sick-with-covid19-overwhelm-joliet-hospital/6064085/ ........................................................................................53
Johnson, Kevin. Local jails releasing hundreds of prisoners amid coronavirus fears, up from dozens just weeks ago, USAToday (Mar. 26, 2020), available at https://www.usatoday.com/story/news/politics/2020/03/26/jails-free-hundreds-prisoners-stopcoronavirus/5077204002/ ..............................................................................................................23
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Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 11 of 73 PageID #:196
Kindy, Kimberly, Brown, Emma & Bennett, Dalton. ‘Disaster waiting to happen’: Thousands of inmates released as jails and prisons face coronavirus threat, Washington Post (Mar. 25, 2020), https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-inmatesreleased-as-jails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-b313df458622c2cc_story.html...............................................................................................................20
Kjolseth, Francisco. Hundreds of Utah inmates will soon be released in response to coronavirus, The Salt Lake Tribune (Mar. 20, 2020), available at https://www.sltrib.com/news/2020/03/21/hundreds-utah-inmates/ .............................................. 21
Kohler, Jeremy & Currier, Joel. St. Louis city and county to release more than 140 inmates amid virus concerns, St. Louis Post-Dispatch (Mar. 26, 2020), available at https://www.stltoday.com/news/local/crime-and-courts/st-louis-city-and-county-to-release-morethan-inmates/article_dd8b30f6-c3ea-5229-b7ac-0aa36ee8f14c.html........................................... 22
Legal Aid Society. COVID-19 Infection Tracking in NYC Jails, Legal Aid Society, available at https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ ........................................43
Leiker, R. & Stavola, Michael. So far, 200 jail inmates released over COVID-19 concerns, Sedgwick County DA says, The Wichita Eagle (Mar. 26, 2020), available at https://www.kansas.com/news/local/crime/article241501106.html ..............................................22
Lyons, Brendan J. NY to release 1,100 parole violators as coronavirus spreads, Times Union (Mar. 27, 2020), available at https://www.timesunion.com/news/article/Deaths-surge-again-inNew-York-from-coronavirus-15160973.php .................................................................................19
Marchione, Marilynn. Novel Coronavirus Can live on Some Surfaces for Up to 3 Days, New Tests Show. TIME, available at https://time.com/5801278/coronavirus-stays-on-surfaces-daystests/ (March 11, 2020) ....................................................................................................................4
Masterson, Matt. COVID-19 Case at Cook County Jail Prompts More Calls for Mass Detainee Release, WTTW News (Mar. 23, 2020), available at https://news.wttw.com/2020/03/23/covid19-case-cook-county-jail-prompts-more-calls-mass-detainee-release ......................................... 25
Merriman, Anna, ‘It’s very difficult to control’: Many Vermont inmates released so that those who remain can be spread out, Valley News (Mar. 26, 2020), available at https://www.vnews.com/Vermont-NH-prisons-working-to-reduce-population-to-prevent-virusspread-33512589 ...........................................................................................................................19
McGrath, Mike. Chief Justice of Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), available at https://courts.mt.gov/Portals/189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID19%20032020.pdf?ver=2020-03-20-115517-333 .........................................................................24
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Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 12 of 73 PageID #:197
Metevia, Thomas. Hillsborough County to free non-violent inmates in effort to prevent COVID19 spread, , Click Orlando.com (Mar. 20, 2020), available at https://www.clickorlando.com/news/local/2020/03/19/hillsborough-county-to-free-non-violentinmates-in-effort-to-prevent-covid-19-spread/ ..............................................................................24
Milano, Johnny. Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, New York Times, https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatictransmission.html .............................................................................................................................4
NBC Bay Area. Sheriff Releases 314 Inmates to Reduce Coronavirus Risk at Alameda County Jail, NBC Bay Area, (Mar. 19, 2020), available at https://www.nbcbayarea.com/news/coronavirus/sheriff-releases-314-inmates-to-reducecoronavirus-risk-at-alameda-county-jail/2258026/........................................................................20
NBC Chicago. March 29: Governor JB Pritzker Delivers Daily Coronavirus Briefing, NBC, available at https://www.nbcchicago.com/top-videos-home/march-29-governor-jb-pritzkerdelivers-daily-coronavirus-briefing/2246851/ ...............................................................................12
NBC Chicago. March 30: Governor JB Pritzker Delivers Daily Coronavirus Briefing, NBC, available at https://www.nbcchicago.com/top-videos-home/march-30-governor-jb-pritzkerdelivers-daily-coronavirus-briefing/2247385/ ...............................................................................13
NBC Chicago. 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 Extended Through April, Pritzker Announces, NBCChicago (Mar. 31, 2020) https://www.nbcchicago.com/news/local/illinois-stay-at-home-order-expected-to-beextended-sources/2247274/............................................................................................................. 8
Newton Daily News. Officials cut prison, jail numbers; Iowa virus cases hit 105, Newton Daily News (Mar. 24, 2020), available at https://www.newtondailynews.com/2020/03/23/officials-cutprison-jail-numbers-iowa-virus-cases-hit-105/acs5xbk/................................................................18
Owen, Tess. NYC Is Releasing Hundreds of Inmates to Stop the Spread of Coronavirus, VICE News (Mar. 26,2020), available at https://www.vice.com/en_us/article/939j9a/nyc-is-releasinghundreds-of-inmates-to-stop-the-spread-of-cornavirus .................................................................23
Pace, Eileen. Bexar County Jail Explores Early Releases, Ceasing Low-Level Arrests Amid Coronavirus, Texas Public Radio (Mar. 20, 2020), available at https://www.tpr.org/post/bexarcounty-jail-explores-early-releases-ceasing-low-level-arrests-amid-coronavirus .........................22
Petrella, Dan, St. Clair, Stacy, Johnson, Steve, & Pratt, Gregory. Gov. J.B. Pritzker issues order requiring residents to ‘stay at home’ starting Saturday, Chicago Tribune, Mar. 20, 2020, https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-shelter-in-place-lockdownorder-20200320-teedakbfw5gvdgmnaxlel54hau-story.html ...........................................................9
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Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 13 of 73 PageID #:198
Prtizker, Governor J.B. Executive Order 2020-13 (March 26, 2020), https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf .............8, 26
Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), available at https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-diseasecovid-19-outbreak/ ...........................................................................................................................3
Rocklov J., Sjodin H., Wilder-Smith A., COVID-19 Outbreak on the Diamond Princess Cruise Ship: Estimating the Epidemic Potential and Effectiveness of Public Health Countermeasures. Journal of Travel Medicine (Feb. 28, 2020), https://academic.oup.com/jtm/advancearticle/doi/10.1093/jtm/taaa030/5766334 ........................................................................................3
Sfondeles Tina. Illinois National Guard medics headed to Stateville as inmate coronavirus cases rise, Chicago Suntimes (Apr. 1, 2020), available at https://chicago.suntimes.com/coronavirus/2020/4/1/21202995/coronavirus-covid-19-illinoisprison-stateville-national-guard-field-hospital ..............................................................................33
Shedlock, Jerzy. Clark County Jail releases nearly 200 inmates due to COVID-19, The Columbian (Mar. 25, 2020), available at https://www.columbian.com/news/2020/mar/25/clarkcounty-jail-releases-nearly-200-inmates-due-to-covid-19/............................................................21
Sissom, Tom. Washington County jail plans for release of 81 more inmates, Northwest Arkansas Democrat-Gazette (Mar. 26, 2020), available at https://www.nwaonline.com/news/2020/mar/26/washington-county-jail-plans-release-81-moreinmat/ .............................................................................................................................................22
St. John, Paige. California to release 3,500 inmates early as coronavirus spreads inside prisons, LATimes (Mar. 31, 2020), available at https://www.latimes.com/california/story/2020-0331/coronavirus-california-release-3500-inmates-prisons ..............................................................18
Tully, Tracey. 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, NYTimes (Mar. 23, 2020), available at https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html.................24
U.S. District Court for the Northern District of Illinois, 2d Am. Gen. Order 20-0012 (Mar. 30, 2020) ....................................................................................................................9
U.S. District Court for the Southern District of Illinois, Admin. Order 263 (Mar. 30, 2020) .........9
U.S. District Court for the Central District of Illinois, Am. Gen. Order 20-01 (Mar. 18, 2020) ....................................................................................................................9
Vermont Department of Corrections. https://doc.vermont.gov/sites/correct/files/documents/2020-03-23-DOC%20Staff%20Test.pdf ........................................................................................................................................................19
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Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 14 of 73 PageID #:199
Wang, Tianbing, et al. Comorbidities and Multi-Organ Injuries in the Treatment of COVID-19, 395 Lancet 10228 (2020), available at https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30558-4/fulltext ................7
Ward, Paula Reed, 485 Allegheny County jail inmates released over virus fears, Pittsburgh PostGazette (Mar. 26, 2020), available at https://www.post-gazette.com/news/crimecourts/2020/03/26/Allegheny-County-jail-inmates-485-released-Pittsburgh-coronavirus-COVID19-fears/stories/202003260184 ......................................................................................................23
WCCO Minnesota. Coronavirus In Minnesota: Hennepin County Jail Population Cut By 26% After Release Of Low-Risk Inmates To Prevent COVID-19 Spread, CBS Minnesota (Mar. 23, 2020), available at https://minnesota.cbslocal.com/2020/03/23/coronavirus-in-minnesotahennepin-county-jail-population-cut-by-26-after-release-of-low-risk-inmates-to-prevent-covid19/ ........................................................................................................................................... 21-22
WBNS. Officials taking steps to reduce county jail populations in Ohio, AP, WBNS (Mar. 21, 2020), available at https://www.10tv.com/article/officials-taking-steps-reduce-county-jailpopulations-ohio-2020-mar........................................................................................................... 21
WDSU Digital Team. Orleans Criminal Court judges order release of certain inmates amid coronavirus crisis, WDSU News, (Mar. 26, 2020), available at https://www.wdsu.com/article/orleans-criminal-court-judges-order-release-of-certain-inmatesamid-coronavirus-crisis/31943462# .............................................................................................22
WHO. 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/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf. .................................6
WHO. Q &A on Coronaviruses (COVID-19), World Health Organization, https://www.who.int/news-room/q-a-detail/q-a-coronaviruses .......................................................4
WHO. Rolling updates on coronavirus disease (COVID-19), World Health Organization, https://www.who.int/emergencies/diseases/novel-COVID-19-2019/events-as-they-happen..........2
WHO. Coronavirus disease 2019 (COVID-19) Situation Report – 72, World Health Organization (April 1, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situationreports/20200401-sitrep-72-covid-19.pdf?sfvrsn=3dd8971b_2 ......................................................3
Williams, Brie, Ahalt, Cyrus, Cloud, David, Augustine, Dallas, Rorvig, Leah, & Sears, David. 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/ ......................................11
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Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 15 of 73 PageID #:200 WorldOMeters. Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (date analysis based on WHO-China Joint Mission Report) ..................................................................................5
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INTRODUCTION COVID-19 has been declared a national pandemic, President Trump has declared a national emergency, and the Governor has issued a proclamation declaring a disaster in the State of Illinois. More than 823,000 people across the globe have been infected and the disease has caused more than 40,500 deaths. Nearly 37,000 people are incarcerated in Illinois, living in close quarters where all aspects of daily life, including healthcare and food service, take place. As with other congregate settings like nursing homes and long-term care facilities, social distancing guidelines can never be fully or effectively implemented in prison. And each day, thousands of staff must come and go from prison facilities, potentially carrying with them the novel coronavirus for days, even weeks, without ever showing symptoms. These settings pose a particular risk of spreading the virus, with catastrophic consequences not just to the prisoners and staff, but also to their communities and the hospitals that serve them. The men and women in IDOC custody who have underlying serious medical conditions, and individuals over 55 years of age, face an even greater risk of severe illness and death if and when an outbreak occurs in the prison where they are currently housed. These prisoners are sitting ducks, waiting to see whether the lethal virus that has claimed so many lives is coming for theirs next. The virus is already at Stateville, and there is every reason to believe that it will appear in prisons throughout the State in the coming days and weeks, leaving death and severe illness in its wake. Defendants have the mechanisms available to temporarily transfer these vulnerable prisoners via a medical furlough so that they can self-isolate. But they have instead chosen inaction. To ensure that these vulnerable prisoners are not forced to die because of Defendants’ politically motivated inaction, Plaintiffs respectfully request that this Court preliminarily certify Plaintiffs’ proposed subclasses 1 and 2, grant Plaintiffs’ request for a
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temporary restraining order, and order Defendants to temporarily transfer the following

individuals to their homes to self-isolate via medical furlough:

a.

People who have serious underlying medical conditions that put them at

particular risk of serious harm or death from COVID-19, including but not

limited to: those with chronic lung disease or moderate to severe asthma, people

with heart disease, people who are immunocompromised due to cancer or other

medical conditions or treatment, people with severe obesity, people with any

other underlying serious medical conditions such as those with diabetes, renal

failure, liver disease, and 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 and who are eligible for medical furlough pursuant

to 730 ILCS 5/3-11-1; and

b. People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.

The public interest in avoiding devastation in communities where IDOC prisons are located, and

the United States Constitution, demands it.

FACTUAL BACKGROUND

I. The COVID-19 Outbreak Has Created a National and Global Health Emergency.

We are living in the midst of an extreme, unprecedented worldwide health emergency

caused by the rapid spread of the coronavirus, COVID-19. The World Health Organization has declared COVID-19 to be a global pandemic.1 On March 9, 2020, Illinois Governor J.B. Pritzker

1 Rolling updates on coronavirus disease (COVID-19), World Health Organization, https://www.who.int/emergencies/diseases/novel-COVID-19-2019/events-as-they-happen (last visited Mar. 29, 2020).
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issued a proclamation declaring a disaster in the State of Illinois.2 On March 13, 2020, President Trump declared a national emergency.3
The number of known COVID-19 infections is increasing daily. As of April 1, 2020,
there were more than 823,000 reported COVID-19 cases throughout the world and more than 40,500 people had died as a result of the virus.4 In the United States alone, there are over 186,000 confirmed cases and over 3,600 deaths.5 In Illinois, there are over 6,900 confirmed cases and 141 deaths.6 The number of COVID-19 cases in the United States is expected to grow
exponentially. The Centers for Disease Control and Prevention (“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.7
2 Gubernatorial Disaster Proclamation, available at https://www2.illinois.gov/sites/gov/Documents/APPROVED%20%20Coronavirus%20Disaster%20Proc%20WORD.pdf (last visited Apr. 1, 2020).
3 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), available at https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19outbreak/ (last visited Apr. 1, 2020).
4 Coronavirus disease 2019 (COVID-19) Situation Report – 72, World Health Organization (April 1, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situationreports/20200401-sitrep-72-covid-19.pdf?sfvrsn=3dd8971b_2 (last visited Apr. 1, 2020).
5 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-inus.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcasesin-us.html (last visited Apr. 1, 2020).
6 Coronavirus Disease 2019 (COVID-19), Ill. Dept. of Pub. Health, http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus (last visited Apr. 1, 2020).
7 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times, (Mar. 13, 2020), available at https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html (last visited Apr. 1, 2020).
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COVID-19 is a particularly contagious disease. A recent study showed that the virus can
survive for up to three hours in the air, four hours on copper, up to twenty-four hours on cardboard, and up to two to three days on plastic and stainless steel.8 Indeed, a new study of an
early cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect transmission
resulting from infected people contaminating common surfaces—in the study, it was a communal mall bathroom.9
Controlling the spread of COVID-19 is made even more difficult because of the
prominence of asymptomatic transmission—people who are contagious but who exhibit no
symptoms, rendering ineffective any screening tools dependent on identifying disease symptoms.10
There is no known vaccine or cure for COVID-19. No one is immune. Common symptoms of COVID-19 include fever, cough, and shortness of breath.11 Other symptoms include congestion, sneezing, fatigue, or diarrhea.12 Many individuals who become
infected with COVID-19 may have mild or moderate symptoms; some may experience no
symptoms at all. Other patients may experience severe symptoms requiring intensive medical
8 Novel Coronavirus Can live on Some Surfaces for Up to 3 Days, New Tests Show. TIME, available at https://time.com/5801278/coronavirus-stays-on-surfaces-days-tests/ (last visited Mar. 31, 2020).
9 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., available at https://wwwnc.cdc.gov/eid/article/26/6/20-0412_article (last visited Mar. 31, 2020).
10 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 Apr. 1, 2020).
11 Coronavirus Disease 2019 (COVID-19), Symptoms of Coronavirus, CDC, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited Mar. 29, 2020).
12 Q&A on Coronaviruses (COVID-19), World Health Organization, https://www.who.int/newsroom/q-a-detail/q-a-coronaviruses (last visited Mar. 29, 2020).
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intervention.13 However, even with hospitalization and intensive treatment, thousands of individuals have died as a result of this infection. Regardless of the type of severity of symptoms, all infected persons are contagious and can rapidly transmit the virus from person to person without proper public health interventions.14 The virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.15
People over the age of fifty-five face greater chances of serious illness or death from COVID-19. 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 60-69 had a 3.6% mortality rate, and individuals age 50-59 had a 1.3% mortality rate. For individuals age 40-49, the mortality rate was 0.4%, and for individuals 40 years and younger, the mortality rate was as low as 0.2%.16
People of any age who suffer from certain underlying medical conditions are also at elevated risk, including 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
13 Id. 14 Coronavirus Disease 2019 (COVID-19): How It Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Ftransmission.html (last visited Mar. 29, 2020). 15 Id. 16 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (date analysis based on WHO-China Joint Mission Report).
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(including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; and people who have had or are at risk of stroke.17 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.18
For these vulnerable populations, the symptoms of COVID-19, particularly shortness of breath, can be severe, and complications can manifest at an alarming pace. Most people in higher risk categories who develop serious illness will need advanced support. This level of supportive care requires highly expensive and specialized equipment, including ventilators, that are in limited supply.19
Increasingly, and in the United States in particular, even some younger and healthier people who contract COVID-19 may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen.20 Medical providers and medical facilities are in peril of becoming completely overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 continues to spread.21
17 Coronavirus Disease 2019 (COVID-19): People Who Need Extra Precautions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fspecific-groups%2Fhigh-risk-complications.html (last visited Mar. 29, 2020).
18 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/whochina-joint-mission-on-covid-19-final-report.pdf.
19 Ex. 1 (Dr. Robert Greifinger Declaration). 20 Ex. 2 (Dr. Jamie Meyer Declaration). 21 Id.
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Even for those who survive COVID-19, recent clinical evidence indicates that in persons who suffer severe symptoms, the virus may also 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. This damage is so extensive and severe that it may be enduring. 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. Indeed studies of some recovered patients in China and Hong Kong indicate a declined lung function of 20% to 30% after recovery.22
The only way to prevent complications and the enormous risk to medically vulnerable people is to prevent them from becoming infected. 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.23 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.24
22 Tianbing Wang, et al., Comorbidities and Multi-Organ Injuries in the Treatment of COVID-19, 395 Lancet 10228 (2020), available at https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30558-4/fulltext; 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 Apr. 1, 2020).
23 Coronavirus Disease 2019 (COVID-19): Situation Summary, CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (lasted visited Mar. 29, 2020).
24 Coronavirus Disease 2019 (COVID-19): How to Protect Yourself, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
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The CDC has issued a guidance that gatherings of more than 10 people must not occur.25 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 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.26
On March 20, 2020, Illinois Governor Pritzker took the strictest measure yet to fight the virus’s spread, issuing a “stay at home” executive order for all residents effective starting March 21, 2020 through at least April 7, 2020; which was then extended to April 30, 2020.27 The order directs all non-essential business and operations to cease. People are allowed to leave their homes only for essential activities. Any gathering larger than 10 people is prohibited, and people are recommended to stay at least six feet away from others. Restaurants, bars, schools, parks, and libraries have all been shut down. In a statement to the public, Governor Pritzker explained that his order was based on his conversations with “some of the best medical experts,
sick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Fprevention.html (last visited Mar. 29, 2020).
25 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-covid19.html (last visited Apr. 1, 2020).
26 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).
27 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-atHome Order Extended Through April, Pritzker Announces, NBCChicago (Mar. 31, 2020) https://www.nbcchicago.com/news/local/illinois-stay-at-home-order-expected-to-be-extendedsources/2247274/ (last visited Apr. 1, 2020).
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epidemiologists, mathematicians, and modelers,” and all recommended a stay at home order “to avoid the loss of potentially tens of thousands of lives.”28
Governors around the country, including in California, New York, and Connecticut, have issued similar stay at home orders to curb the spread of the virus.29
Recognizing the imperative of social distancing, Circuit Court Chief Judge Timothy Evans ordered that the Cook County courts be largely closed to the public, that all hearings be conducted via videoconference wherever possible, and that all individuals in the courthouses maintain a minimum distance of six feet from all other individuals.30 This Court, joined by other district courts in the state and across the country, have continued all criminal and civil jury trials because the imperative of social distancing “render[s] juror participation difficult or unsafe.”31 II. Incarcerated People Are Particularly Vulnerable to Infection from COVID-19.
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. Correctional facilities are inherently congregate environments, where large groups of people live, eat, and sleep in close contact with one another. It is impossible to achieve social distancing
28 Gov. J.B. Pritzker issues order requiring residents to ‘stay at home’ starting Saturday, Chicago Tribune, Mar. 20, 2020, https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-shelter-inplace-lockdown-order-20200320-teedakbfw5gvdgmnaxlel54hau-story.html (last visited Apr. 1, 2020).
29 Id. 30 Circuit Court of Cook County, Administrative Order 2020-01 (amended Mar. 30, 2020), http://www.cookcountycourt.org/Portals/0/Order%203-30-20.pdf (last visited Mar. 30, 2020). 31 U.S. District Court for the Northern District of Illinois, 2d Am. Gen. Order 20-0012 (Mar. 30, 2020); see also U.S. District Court for the Southern District of Illinois, Admin. Order 263 (Mar. 30, 2020); U.S. District Court for the Central District of Illinois, Am. Gen. Order 20-01 (Mar. 18, 2020).
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standards in these settings.32 Therefore infectious diseases, particularly airborne diseases, such as COVID-19, are more likely to spread rapidly between individuals in correctional facilities.33
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. Surfaces are infrequently washed, if at all, and cleaning supplies are in short supply.34 These needs are now multiplied and also compounded by the lack of personal protective equipment (PPE) such as masks and gloves for either staff or prisoners. This means there are more people who are susceptible to getting infected all congregated together in a context in which fighting the spread of an infection is nearly impossible.
Given the history of epidemiologic outbreaks in correctional facilities, such as Tuberculosis, influenza, and MRSA, it is expected that COVID-19 will also readily spread in prisons, especially when people cannot engage in proper hygiene and adequately distance themselves from infected residents or staff. 35
The people who live in these environments—environments that defy all current public safety standards— are themselves at high risk 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-19.36 As Dr. Craig
32 Ex. 1 (Greifinger Decl.); Ex. 3 (Dr. Craig Haney Declaration). 33 Ex. 4 (Dr. Chris Beyrer Declaration); Ex. 2 (Meyer Decl.). 34 Ex. 1 (Greifinger Decl.); Ex. 2 (Meyer Decl.); Ex. 3 (Haney Decl.); Ex. 4 (Beyrer Decl.). 35 Ex. 4 (Beyrer Decl.). 36 Id.
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Haney, a correctional health expert, explains, prisoners are “unusually vulnerable to stressrelated 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).”37
Additionally, many correctional facilities lack an adequate medical care infrastructure to address the spread of infectious disease, like COVID-19, and treat high-risk people in custody.38 Prison health units are not equipped with sufficient emergency medical equipment, such as oxygen tanks, nasal cannulae, 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.”39 Prisons and jails rely 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 will likely be at or over capacity themselves.40
Prisons 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 the prisons on a daily basis. Staff arrive and leave each facility three times a day in large numbers, and there is little to no ability to adequately screen staff for new,
37 Ex. 3 (Haney Decl.). 38 Ex. 1 (Greifinger Decl.) Ex. 2 (Meyer Decl.). 39 “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-Solutions1.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/ (last visited Apr. 1, 2020). 40 Ex. 2 (Meyer Decl.).
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asymptomatic infection. When the COVID-19 virus occurs and spreads within a prison, 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.41
At the Governor’s March 29, 2020, daily briefing on the coronavirus situation, IDPH
Director Dr. Ngozi Ezike acknowledged the present danger that when the infection enters
prisons, the congregate nature of these facilities, with staff coming and going from the
community each day in large numbers, will “increase the rate of infection and its fast spread through these facilities.”42
On March 30, 2020, following the death of a COVID-19 patient at Stateville, Dr. Ezike
again acknowledged the heightened risk posed by correctional settings and the inability to
conform them to public health standards:
Congregate 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. Those who are incarcerated obviously live and work and eat and study and recreate all within that same environment, heightening the potential for COVID-19 to spread really quickly once it’s introduced. 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. I know our partners at the Department of Corrections are working innovatively to try to create the best situations for these, for these facilities. But some facilities and correctional centers do not have enough individual cells, and so we are
41 Ex. 1 (Greifinger Decl.). 42 March 29: Governor JB Pritzker Delivers Daily Coronavirus Briefing, NBC, available at https://www.nbcchicago.com/top-videos-home/march-29-governor-jb-pritzker-delivers-dailycoronavirus-briefing/2246851/ (last visited Apr. 1, 2020).
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considering isolating multiple laboratory confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group.43 The devastating impact that a COVID-19 outbreak in IDOC will have on surrounding communities is already a reality. Stateville Correctional Center announced its first confirmed case on Wednesday, March 25, 2020, and by Monday evening, March 30, 2020, St. Joseph Hospital in Joliet was “overwhelmed” by inmates suffering from the effects of coronavirus and staff were “maxed out.”44 The hospital’s medical director, Dr. John Walsh, said, “This is a disaster because what I most fear is that without some resolution, the number of cases coming in from Stateville will become excessive. We currently have nine inmates on ventilators, critically ill. There was four in the emergency department a couple of hours ago, and I believe the volume of patients there is huge. In addition, something has to be done at Stateville. You will have a huge epidemic, remembering that 20% of the people who contract this virus are probably gonna end up in hospital and a number of them are gonna die. This could end with up to 100 inmates dying if this is out of control, and they are not isolated well at this point.”45 St. Joseph Hospital is now caring for 17 prisoners from Stateville, 9 of whom are in intensive care on ventilators. Other prison communities throughout Illinois are similarly situated, many with far fewer intensive care beds available to provide care when an outbreak occurs. To prevent the crisis now occurring in Joliet from repeating and worsening across the state, effective mitigation measures must be taken now.
43 March 30: Governor JB Pritzker Delivers Daily Coronavirus Briefing, NBC, available at https://www.nbcchicago.com/top-videos-home/march-30-governor-jb-pritzker-delivers-dailycoronavirus-briefing/2247385/ (last visited Apr. 1, 2020).
44 abc7 Chicago, Illinois Prisoners Sick with COVID-19 Overwhelm Juliet Hospital (video), available at https://abc7chicago.com/health/illinois-prisoners-sick-with-covid-19-overwhelm-joliethospital/6064085/ (last visited Mar. 31, 2020).
45 Id.
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III. Reducing the Prison Population Is the Only Meaningfully Means to Prevent the Harm Caused by COVID-19 in Prisons and their Surrounding Communities.
Because the public health and safety measures cannot be fully achieved in correctional facilities, other steps must be taken to save lives and protect the spread of the infection from these communities. Proactive risk mitigation, including eliminating close contact in congregate environments, is the only effective way to prevent the spread of the COVID-19 infection. In fact, a study published in the Journal of Travel Medicine found that the number of COVID-19 cases on the Diamond Princess cruise ship would have been more than eight times lower if the ship had been evacuated in a timely manner, rather than requiring the passengers to quarantine within the close confines of the ship.46
Public health experts with experience in correctional settings have similarly recommended the release from custody of people most vulnerable to COVID-19 to protect the communities inside and outside the prisons, and to slow the spread of the COVID-19 infection. Population reduction protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for all people held or working in a correctional facility. Because prisons are often located in small rural communities, removing the most vulnerable people from custody also reduces the burden on those region’s limited health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time and require hospitalization in these small communities.
46 Sandoiu, supra (Citing Rocklov J., Sjodin H., Wilder-Smith A., COVID-19 Outbreak on the Diamond Princess Cruise Ship: Estimating the Epidemic Potential and Effectiveness of Public Health Countermeasures. Journal of Travel Medicine (Feb. 28, 2020), https://academic.oup.com/jtm/advancearticle/doi/10.1093/jtm/taaa030/5766334 (last visited Apr. 1, 2020).
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Dr. Robert Greifinger, a correctional health expert, has concluded that “[r]isk mitigation is the only viable public health strategy available to limit transmission of infection, morbidity and mortality in prisons, and to decrease the likely public health impact outside of the prisons. Even with the best-laid plans to address the spread of COVID-19 in prisons, the release of individuals, prioritizing the most medically vulnerable individuals, is a key part of a risk mitigation strategy . . . Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility.”
Dr. Greifinger explains that reducing the prison population “has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, disinfecting supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff, which will likely be reduced by illness, such that they can continue to ensure the safety of detainees.”
Similarly, Dr. Craig W. Haney, a Distinguished Professor of Psychology and UC Presidential Chair at the University of California Santa Cruz, recommends that “adult prisons must reduce their populations urgently in order to allow the necessary social distancing in response to the COVID-19 Pandemic.”47
Professor Chris Breyer, professor of Epidemiology at John Hopkins Bloomberg School of Public Health, has concluded: “While every effort should be made to reduce exposure in detention facilities, this may be extremely difficult to achieve and sustain. It is therefore an
47 Ex. 3 (Haney Decl.). 15

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urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.”48
Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing, has concluded that “[r]educing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.”49 She explains that “[h]ealth in jails and prisons is community health. Protecting the health of individuals who are detailed in and work in these facilities is vital to protecting the health of the wider community.”50
Dan Pacholke, a corrections expert with more than 37 years of experience, has specific recommendations for steps IDOC can take to proactively respond to COVID-19 to protect the health and safety of people in IDOC custody and IDOC staff.51 Mr. Pacholke explains: “Among those steps is considering how IDOC can exercise its authority and discretion . . . to reduce the prison population. This includes awarding good time credits, transferring people to home detention, and authorizing medical furloughs.”52 Mr. Pacholke further explains that “[a]ll of these and any other options should be fully utilized to allow individuals to maintain social
48 Ex. 4 (Beyrer Decl.). 49 Ex. 2 (Meyer Decl.). 50 Id. 51 Ex. 5 (Dan Pacholke Declaration). 52 Id.
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distancing and have better access to testing and treatment. This will also help mitigate the impact of staff shortages and lessens the burden on prison medical services.”53
Internationally, governments have recognized the threat posed by COVID-19 in correctional facilities and have released detainees. In Iran, for example, about 70,00 people were temporarily released from jails to curb the spread of COVID-19.54
In the United States, the need to address the COVID-19 problem in prisons has been recognized on a national level. The COVID-19 stimulus package passed by Congress specifically includes funding for federal prisons to purchase personal protective gear and tests kits for COVID-19 because of the “density of the inmate population, the high traffic, the high volume of inmates, [and] the high rate of turnover of inmates and personnel.”55 The bill authorizes the Attorney General to lengthen the maximum amount of time that a federal prisoner can be placed in home confinement during the pandemic.56
On March 30, 2020, the United States House of Representatives Committee on the Judiciary recommended a similar plan of action, calling on the federal Bureau of Prisons to drastically increase its population reduction efforts, including through release where viable and increased use of home detention.57
53 Id. 54 Iran Temporarily Releases 70,000 Prisoners As Coronavirus Cases Surge, Reuters (Mar. 9, 2020), available at https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5 (last visited Apr. 2, 2020). 55 Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) H.R. 748, at 633 (2020), available at https://assets.documentcloud.org/documents/6819239/FINAL-FINAL-CARES-ACT.pdf (last visited Apr. 1, 2020). 56 Id. at 634. 57 March 30, 2020 letter, available at https://judiciary.house.gov/uploadedfiles/3.30.20_letter_to_ag_barr_re_covid19.pdf?utm_source=The+M arshall+Project+Newsletter&utm_campaign=e6df8704ef-
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Echoing the calls of advocates and medical professionals, a group of 35 elected prosecutors have called on leaders within the criminal legal system to “dramatically reduce the number of incarcerated individuals and the threat of disastrous outbreaks.”58
A number of states have begun to take steps to protect people in prisons from the impending spread of COVID-19 by releasing people in an effort to reduce populations.
In California, Governor Newsom announced his plans to accelerate the release of 3,500 people from state prisons in an effort to reduce the population as COVID-19 infections continue to spread in the prisons.59 This announcement comes in advance of a court hearing schedule to begin later this week to determine if more individuals should be released.
The Iowa Department of Corrections has announced that the DOC is expediting the release of about 700 prisoners, or 7% of its population, who are approved for parole or work release.60
EMAIL_CAMPAIGN_2020_03_31_11_34&utm_medium=email&utm_term=0_5e02cdad9de6df8704ef-174272961 (last visited Apr. 1, 2020).
58 Fair and Just Prosecution, Joint Statement from Elected Prosecutors on COVID19 and Addressing the Rights and Needs of Those in Custody (Mar. 2020), https://fairandjustprosecution.org/wpcontent/uploads/2020/03/Coronavirus-Sign-On-Letter.pdf (last visited Apr. 1, 2020).
59 Paige St. John, California to release 3,500 inmates early as coronavirus spreads inside prisons, LATimes (Mar. 31, 2020), available at https://www.latimes.com/california/story/2020-0331/coronavirus-california-release-3500-inmates-prisons (last visited Mar. 30, 2020).
60 Officials cut prison, jail numbers; Iowa virus cases hit 105, Newton Daily News (Mar. 24, 2020), available at https://www.newtondailynews.com/2020/03/23/officials-cut-prison-jail-numbersiowa-virus-cases-hit-105/acs5xbk/. Also, in North Dakota, the state parole board decided to release over fifty people, or about 2% of its prison population, on early parole. See April Baumgarten, North Dakota paroles 56 prisoners early amid pandemic, including 3 convicted of sexual assault, Grand Forks Herald (Mar. 20, 2020), https://www.grandforksherald.com/news/crime-and-courts/5009882-North-Dakotaparoles-56-prisoners-early-amid-pandemic-including-3-convicted-of-sexual-assault (last visited Mar. 30, 2020).
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In New York, Governor Cuomo ordered the release of more than 1,000 people who are in prisons and jails across the state on the basis of a parole violation.61
In Colorado, Governor Polis issued an executive order that suspended the caps and criteria Colorado places on the accrual of good time credits in order to allow the DOC to award earned time credits to “facilitate the reduction of the population of incarcerated persons and parolees to prevent an outbreak in prisons.”62 Additionally, the Colorado governor suspended and relaxed the criteria for individuals to be released to Special Needs Parole.63
The Vermont Department of Corrections has worked to reduce its population: “[t]he goal is to reduce our (inmate) population so we can start spreading out the remaining population.”64 Jim Baker, commissioner for the Department, stated that they “started by looking at which inmates can be let out on furlough and who can be released on probation.”65 Since late February, the Vermont DOC has released over 200 prisoners (from a population of approximately 1600), with 100 prisoners being released in the past week.66
61 Brendan J. Lyons, NY to release 1,100 parole violators as coronavirus spreads, Times Union (Mar. 27, 2020), available at https://www.timesunion.com/news/article/Deaths-surge-again-in-NewYork-from-coronavirus-15160973.php (reporting on New York Governor Cuomo’s order to release parole violators) (last visited Mar. 30, 2020).
62 State of Colorado, Executive Order D 2020 016, March 25, 2020, at pg. 2, available at https://drive.google.com/file/d/18o0yWHzZleHJ87hmgLuBmXwpM8R74Q5x/view (last visited Mar. 30, 2020).
63 Id. 64 Anna Merriman, ‘It’s very difficult to control’: Many Vermont inmates released so that those who remain can be spread out, Valley News (Mar. 26, 2020), available at https://www.vnews.com/Vermont-NH-prisons-working-to-reduce-population-to-prevent-virus-spread33512589 (last visited Apr. 1, 2020). 65 Id. 66 Id.; For population size, see https://doc.vermont.gov/sites/correct/files/documents/2020-03-23DOC%20Staff%20Test.pdf (last visited Apr. 1, 2020).
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Other states, like Oklahoma and Wisconsin, have taken more moderate, and thus less
effective, steps to reduce the populations in prisons by only halting new admissions from county jails into state prison facilities.67
Several counties with significant jail populations have also undertaken measures to
reduce their facility’s population in an effort to slow the spread of COVID-19. Many of these
steps have included drastically reducing the jail populations within a matter of weeks, or
sometimes days. Counties on the West Coast have been the sites of several large scale jail
population reductions. Counties in California in particular have seen significant reductions. The
Los Angeles County Sheriff decreased the jail population by ten percent by releasing 1,700 individuals within the last month.68 In Alameda County in Northern California, more than 300
individuals have been released from jail in the span of two weeks, amounting to eleven percent of the jail’s population.69 Oregon has similarly reduced its jail population in Washington County,
outside Portland, by more than 120 inmates (from a population of 574), freeing up enough space for each remaining inmate to be housed in their own cell.70 Washington State similarly released
67 DOC Stops Accepting Newly Sentenced State Prisoners, The Frontier (Mar. 22, 2020), https://www.enidnews.com/news/local_news/doc-stops-accepting-newly-sentenced-stateprisoners/article_ea6a42a4-47c1-5dbc-9446-5dec46032c5d.html (Oklahoma DOC halting new admissions into the state prison system); Emergency Order # 9, Order to the Dep’t of Corrections, Tony Evers, Gov. Wisconsin (Mar. 20, 2020).
68 Justin Carissimo, 1,700 inmates released from Los Angeles County in response to coronavirus outbreak, CBS News (Mar. 24, 2020), available at https://www.cbsnews.com/news/inmates-released-losangeles-county-coronavirus-response-2020-03-24/ (last visited Apr. 1, 2020).
69 Sheriff Releases 314 Inmates to Reduce Coronavirus Risk at Alameda County Jail, NBC Bay Area, (Mar. 19, 2020), available at https://www.nbcbayarea.com/news/coronavirus/sheriff-releases-314inmates-to-reduce-coronavirus-risk-at-alameda-county-jail/2258026/ (“The release of the 314 inmates reduces the number of inmates at Santa Rita to 2,40.”) (last visited Apr. 1, 2020).
70 Kimberly Kindy, Emma Brown & Dalton Bennett, ‘Disaster waiting to happen’: Thousands of inmates released as jails and prisons face coronavirus threat, Washington Post (Mar. 25, 2020), https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-inmates-released-asjails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-b313-df458622c2cc_story.html
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more than 400 individuals from county jails in Clark and King County over the course of a
couple of days.71 In Arizona, Coconino County released ten percent of the jail population to
reduce the population to 400,72 and the Pima County Sheriff has proposed releasing seven
percent of the jail population by releasing 135 inmates.73 In Utah, about 200 individuals are in
the process of being released from the Salt Lake County jail over the coming days (a 10%
reduction in population), following the release of about 90 women from county jail.74
Cleveland, Ohio drastically reduced the Cuyahoga County jail’s population by releasing
over 700 people from detention, a 35 percent reduction in population.75 In Minnesota, the
Hennepin County jail released 26 percent of the individuals detained.76 In New Orleans, judges
(Washington County jail reduced its population by 120 individuals) (last visited Apr. 1, 2020); Bob Heye, Coronavirus and Crime: Jail releases, a rash of break-ins and one encouraging trend, KATU (Mar. 23, 2020), available at https://katu.com/news/coronavirus/coronavirus-and-crime-jail-releases-a-rash-ofbreak-ins-and-one-encouraging-trend (last visited Apr. 1, 2020).
71 Jerzy Shedlock, Clark County Jail releases nearly 200 inmates due to COVID-19, The Columbian (Mar. 25, 2020), available at https://www.columbian.com/news/2020/mar/25/clark-countyjail-releases-nearly-200-inmates-due-to-covid-19/ (last visited Apr. 1, 2020).
72 Scott Buffon, Coconino County jail releases nonviolent inmates in light of coronavirus concerns, Arizona Daily Sun (Mar. 20, 2020), available at https://azdailysun.com/news/local/coconinocounty-jail-releases-nonviolent-inmates-in-light-of-coronavirus-concerns/article_a6046904-18ff-532a9dba-54a58862c50b.html (last visited Apr. 1, 2020).
73 Jacques Billeaud, Tucson lawyers seek release of nonviolent inmates from jail, Tucson.com (Mar. 24, 2020), available at https://tucson.com/news/local/crime-and-courts/tucson-lawyers-seekrelease-of-nonviolent-inmates-from-jail/article_0cd49be4-6dd6-11ea-99d3-576d60e1dae5.html (last visited Apr. 1, 2020).
74 Francisco Kjolseth, Hundreds of Utah inmates will soon be released in response to coronavirus, The Salt Lake Tribune (Mar. 20, 2020), available at https://www.sltrib.com/news/2020/03/21/hundreds-utah-inmates/ (the total jail population in Salt Lake County jail was 1,964 people) (last visited Apr. 1, 2020).
75 Officials taking steps to reduce county jail populations in Ohio, AP, WBNS (Mar. 21, 2020), available at https://www.10tv.com/article/officials-taking-steps-reduce-county-jail-populations-ohio2020-mar (last visited Apr. 1, 2020).
76 Coronavirus In Minnesota: Hennepin County Jail Population Cut By 26% After Release Of Low-Risk Inmates To Prevent COVID-19 Spread, CBS Minnesota (Mar. 23, 2020), available at
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overseeing the local criminal court issued a “blanket order” to release a substantial number of
individuals being held in pretrial detention.77 The New Orleans jail population has subsequently
been reduced by about 14 percent.78 In Alabama, the jail population in Washington County is
likely to reduce by over 40 percent: from more than 800 a few months ago to below 450.79
Several other Midwestern and Southern counties have seen population reductions of 150 or more
individuals from relatively small county jails, including: Oklahoma County, Oklahoma;80
Sedgwick County, Kansas;81 Bexar County, Texas;82 St. Louis County, Missouri;83 Macomb and
https://minnesota.cbslocal.com/2020/03/23/coronavirus-in-minnesota-hennepin-county-jail-populationcut-by-26-after-release-of-low-risk-inmates-to-prevent-covid-19/ (last visited Apr. 1, 2020).
77 Orleans Criminal Court judges order release of certain inmates amid coronavirus crisis, WDSU News, (Mar. 26, 2020), available at https://www.wdsu.com/article/orleans-criminal-court-judges-orderrelease-of-certain-inmates-amid-coronavirus-crisis/31943462# (last visited Apr. 1, 2020).
78 Id.
79 Tom Sissom, Washington County jail plans for release of 81 more inmates, Northwest Arkansas Democrat-Gazette (Mar. 26, 2020), available at https://www.nwaonline.com/news/2020/mar/26/washington-county-jail-plans-release-81-more-inmat/ (last visited Apr. 1, 2020).
80 Kayla Branch, Coronavirus in Oklahoma: Over 200 nonviolent offenders released from Oklahoma County jail to limit COVID-19 spread, The Oklahoman (Mar. 25, 2020), available at https://oklahoman.com/article/5658504/coronavirus-in-oklahoma-over-200-non-violent-offendersreleased-from-oklahoma-county-jail-to-limit-covid-19-spread (releasing 200 people) (last visited Apr. 1, 2020).
81 R. Leiker & Michael Stavola, So far, 200 jail inmates released over COVID-19 concerns, Sedgwick County DA says, The Wichita Eagle (Mar. 26, 2020), available at https://www.kansas.com/news/local/crime/article241501106.html (last visited Apr. 1, 2020).
82 Eileen Pace, Bexar County Jail Explores Early Releases, Ceasing Low-Level Arrests Amid Coronavirus, Texas Public Radio (Mar. 20, 2020), available at https://www.tpr.org/post/bexar-countyjail-explores-early-releases-ceasing-low-level-arrests-amid-coronavirus (releasing more than 140 people) (last visited Apr. 1, 2020).
83 Jeremy Kohler & Joel Currier, St. Louis city and county to release more than 140 inmates amid virus concerns, St. Louis Post-Dispatch (Mar. 26, 2020), available at https://www.stltoday.com/news/local/crime-and-courts/st-louis-city-and-county-to-release-more-thaninmates/article_dd8b30f6-c3ea-5229-b7ac-0aa36ee8f14c.html (last visited Apr. 1, 2020).
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Wayne Counties in Michigan;84 Kenton and Louisville Counties in Kentucky;85 and Nashville,
Tennessee.86
On the East Coast, Pittsburgh reduced the county jail population by 20 percent by
releasing approximately 500 people.87 New York City plans to release about 7% of Rikers
Island’s population by releasing 375 inmates who do not pose a threat to society, amidst a call
from advocates for more releases given the ballooning rate of infection in Rikers Island.88 A
84 Karen Drew, Metro Detroit county jails reviewing cases to see which inmates could be released amid coronavirus (COVID-19) outbreak, Click On Detroit (Mar. 24, 2020), available at https://www.clickondetroit.com/news/defenders/2020/03/25/metro-detroit-county-jails-reviewing-casesto-see-which-inmates-could-be-released-amid-coronavirus-covid-19-outbreak/ (the two counties combined released more than 440 individuals) (last visited Apr. 1, 2020).
85 John Cheves, Chief justice pleads for Kentucky inmate releases ahead of COVID-19, but progress slow, Lexington Herald Leader (Mar. 23, 2020), available at https://www.kentucky.com/news/coronavirus/article241428266.html (last visited Apr. 1, 2020); Katrina Helmer, Metro Corrections releasing non-violent inmates to prevent coronavirus spread, WDRB.com (Mar. 18, 2020), available at https://www.wdrb.com/news/metro-corrections-releasing-non-violentinmates-to-prevent-coronavirus-spread/article_0fbed080-6968-11ea-ada1-f73b721440b2.html (last visited Apr. 1, 2020).
86 Kevin Johnson, Local jails releasing hundreds of prisoners amid coronavirus fears, up from dozens just weeks ago, USAToday (Mar. 26, 2020), available at https://www.usatoday.com/story/news/politics/2020/03/26/jails-free-hundreds-prisoners-stopcoronavirus/5077204002/ (last visited Apr. 1, 2020).
87 Paula Reed Ward, 485 Allegheny County jail inmates released over virus fears, Pittsburgh Post-Gazette (Mar. 26, 2020), available at https://www.post-gazette.com/news/crimecourts/2020/03/26/Allegheny-County-jail-inmates-485-released-Pittsburgh-coronavirus-COVID-19fears/stories/202003260184 (last visited Apr. 1, 2020).
88 Tess Owen, NYC Is Releasing Hundreds of Inmates to Stop the Spread of Coronavirus, VICE News (Mar. 26,2020), available at https://www.vice.com/en_us/article/939j9a/nyc-is-releasing-hundredsof-inmates-to-stop-the-spread-of-cornavirus; Noah Higgins-Dunn, Coronavirus: New York City to release 300 nonviolence inmates from Rikers Island, CNBC (Mar. 24, 2020) https://www.cnbc.com/2020/03/24/coronavirus-new-york-city-to-release-300-nonviolent-inmates-fromrikers-island.html (last visited Apr. 1, 2020).
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Florida county, which includes Tampa, also reduced its local jail population of 2,700 by releasing 6 percent, or 164 people, from the jail.89
Supreme courts in several states have collaborated in or led the efforts to reduce jail
populations by issuing orders, demonstrating a growing consensus on the huge impact that the
virus has within detention facilities. The Chief Justice of New Jersey ordered the release of approximately 1,000 individuals from New Jersey jails, which is nine percent of the population.90
South Carolina’s Chief Justice ordered the release of all individuals charged with a non-capital
offense on their own recognizance, unless the individual presents an unreasonable danger to the community or is an extreme flight risk.91 Nearly 200 people were released pursuant to this order.92 In Montana, the Chief Justice instructed his state’s judges to “review your jail rosters
and release, without bond, as many prisoners as you are able, especially those being held for non-violent offenses.”93 In California, the Chief Justice instructed courts at sentencing or when
89 Thomas Metevia, , Hillsborough County to free non-violent inmates in effort to prevent COVID-19 spread, , Click Orlando.com (Mar. 20, 2020), available at https://www.clickorlando.com/news/local/2020/03/19/hillsborough-county-to-free-non-violent-inmatesin-effort-to-prevent-covid-19-spread/ (last visited Apr. 1, 2020).
90 In re Request to Commute or Suspend County Jail Sentences, Dkt. No. 084230 (N.J. Mar. 22, 2020) (ordering the release of any inmate in New Jersey serving a county jail sentence as a condition of probation or as a result of a municipal court conviction); see Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, NYTimes (Mar. 23, 2020), available at https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html (last visited Apr. 1, 2020).
91 Memorandum from Donald W. Beatty, Chief Justice of South Carolina Supreme Court, to Magistrates, Municipal Judges, and Summary Court Staff (Mar. 16, 2020), available at https://www.sccourts.org/whatsnew/displayWhatsNew.cfm?indexId=2461 (last visited Apr. 1, 2020).
92 Kyle C. Barry, Some Supreme Courts Are Helping Shrink Jails To Stop Outbreaks. Others Are Lagging Behind, The Appeal (Mar. 25, 2020), available at https://theappeal.org/politicalreport/somesupreme-courts-are-helping-shrink-jails-coronavirus/ (last visited Apr. 1, 2020).
93 Letter from Mike McGrath, Chief Justice of Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), available at
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setting conditions of release to consider the person’s “existing health conditions” and any “conditions existing at . . . the anticipated place of confinement that could affect the [person’s] health.”94
Recognizing the immediate threat of COVID-19 and the need to reduce the population of Cook County Jail to limit the risk of jail detainees and staff being exposed to COVID-19 and allow for people in the jail to practice social distancing, on March 23, 2020, Judge LeRoy Martin in the Circuit Court of Cook County issued an order for an expedited bond process for specific classes of defendants, including those charged with low-level felonies, those detained on a cash bond they cannot afford, medically-vulnerable detainees, those serving a jail sentence, and those locked up on a probation or parole violation warrant.95 IV. IDOC and Governor Pritzker Are Failing to Take Necessary Precautions to Reduce
the Spread of COVID-19 Within Prisons and Their Surrounding Communities, Placing People at an Increased Risk. The IDOC operates 28 adult correctional facilities throughout the State of Illinois and houses around 37,000 individuals. There are 11,600 individuals employed by the IDOC. Illinois prisons are on the cusp of an outbreak, but there is still time for urgent and decisive action that can prevent harm. The first confirmed cases of COVID-19 in IDOC occurred on Wednesday, March 25, 2020—three prisoners and three staff tested positive for COVID-19, and 10 additional prisoners were tested and were awaiting results.
https://courts.mt.gov/Portals/189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID19%20032020.pdf?ver=2020-03-20-115517-333 (last visited Apr. 1, 2020).
94 Kyle C. Barry, Some Supreme Courts Are Helping Shrink Jails To Stop Outbreaks. Others Are Lagging Behind, The Appeal (Mar. 25, 2020), available at https://theappeal.org/politicalreport/somesupreme-courts-are-helping-shrink-jails-coronavirus/ (last visited Apr. 1, 2020).
95 Matt Masterson, COVID-19 Case at Cook County Jail Prompts More Calls for Mass Detainee Release, WTTW News (Mar. 23, 2020), available at https://news.wttw.com/2020/03/23/covid-19-casecook-county-jail-prompts-more-calls-mass-detainee-release (last visited Apr. 1, 2020).
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As of April 1, 2020, there are 52 confirmed prisoners who have COVID-19 in two different correctional centers (Stateville and North Lawndale ATC) and 25 confirmed staff who have the virus in seven different correctional centers (Stateville NRC, Stateville, Sheridan, North Lawndale ATC, Menard, Joliet Treatment Center, and Crossroads ATC).96 There are 187 additional prisoners who were tested and are awaiting results.97 However, the actual number of individuals with COVID-19 in IDOC is likely much higher.
On March 30, 2020, health officials announced that a prisoner in his 50s housed at Stateville Correctional Center had died from COVID-19.98
On March 26, 2020, the Governor acknowledged that “certain populations are at a higher risk of experiencing more severe illness as a result of COVID-19, including older adults and people who have serious chronic health conditions, such as heart disease, diabetes, lung disease or other mental or physical conditions.”99 The Governor also acknowledged that “the vast majority” of those housed within IDOC are in “close proximity and contact with each other in housing units and dining halls,” making them “especially vulnerable to contracting and spreading COVID-19.”100 The Governor further acknowledged that “the IDOC currently has limited housing capacity to isolate and quarantine inmates who present as symptomatic of, or test
96 COVID-19 Response, Illinois Department of Correction, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited April 1, 2020).
97 Id. 98 Emily Hoerner, Edlerly inmates are at high risk for coronavirus. Why are there so many of them in Illinois’s prisons?, InjusticeWatch, available at https://www.injusticewatch.org/news/2020/elderly-inmates-are-at-high-risk-for-coronavirus-why-arethere-so-many-of-them-in-illinoiss-prisons/ (last visited Apr. 1, 2020). 99 Executive Order 2020-13 (March 26, 2020), https://www2.illinois.gov/IISNews/21288Gov._Pritzker_Stay_at_Home_Order.pdf (last visited Apr. 1, 2020). 100 Id.
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positive for, COVID-19.”101 The Governor stated that “to ensure that the Director of the IDOC may take all necessary steps, consistent with public health guidance, to prevent the spread of COVID-19 in the IDOC facilities and provide necessary healthcare to those impacted by COVID-19, it is critical to limit any increases in the number of inmates in the IDOC facilities.”102 In response, the Governor issued an emergency executive order that suspended admissions of new prisoners from county jails.103 The Governor’s order, however, failed to address the fact that hundreds of people will still come and go from the prisons every day, and does not speed up and extend the release of any of the current population.
Neither the Governor nor the IDOC have acted with the urgency or decisiveness that is required to quell this oncoming crisis. The Governor has not taken any steps to substantially reduce the population or expand IDOC’s ability to release, furlough, or transfer to home detention even those who are medically vulnerable. IDOC has taken only limited steps to this end, releasing far fewer than it could even in cases of those who are medically vulnerable and close to the end of the incarceration period anyway.
Even before COVID-19 entered IDOC, activists, community organizers, and civil rights lawyers began advocating for de-population efforts in IDOC to curb the spread. On March 17, 2020, advocates sent a letter to Governor Pritzker urging him to order IDOC to release individuals who can be released from custody in a way that is consistent with public safety. The letter outlined a number of specific actions Governor Pritzker should take to protect the vulnerable individuals in IDOC custody, as well as the staff who work there, including: (1)
101 Id. 102 Id. 103 Id.
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immediately ordering the release of individuals whose release dates are within 120 days; (2) release all individuals in custody awaiting parole revocation hearings; (3) prioritize release for any individuals whose release plans are pending host site approval; (4) order IDOC to stop taking people into custody for parole violations unless they present a clear and present danger of imminent physical harm, and rescind all parole warrants; (5) release individuals with viable clemency petitions; (6) take all actions necessary to maximize good time credits; (7) evaluate individuals who are pregnant, postpartum, or living with their infants in IDOC programs; (8) evaluate individuals with HCU living assignments and chronic care needs for consideration of early release; (9) take steps to limit intake into IDOC facilities; and (10) ensure that the IDOC has the resources necessary to combat a possible COVID-19 outbreak in one or more IDOC facilities.104
Illinois law provides several established mechanisms for reducing the prison population, all of which are available to the Governor and Director in this emergency. The Governor and Director of IDOC have authority pursuant to various Illinois statues to reduce the population in Illinois prisons. Pursuant to 730 ILCS 5/3-11-1(a)(2), the IDOC may release a person from prison on medical furlough “to obtain medical, psychiatric or psychological services when adequate services are not otherwise available.” The IDOC therefore has statutory authority to release on medical furlough individuals who are medically vulnerable to COVID-19 either due to age or pre-existing medical conditions.
Pursuant to the Electronic Monitoring and Home Detention Law, 730 ILCS 5/5-8A-1 et seq. (“Home Detention Law”), IDOC has the authority and obligation to implement procedures through which eligible prisoners may serve a portion or all of their custodial sentence in home
104 Ex. 6 (Advocates’ March 17, 2020 Letter).
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detention. The Home Detention Law directs the Department to issue administrative directives to allow for specifically enumerated categories of state prisoners to serve portions of their sentence in home detention. Pursuant to 730 ILCS 5/5-8A-3(d), IDOC may place a prisoner in an electronic monitoring or home detention program if that person is over 55 years old, has 12 months or less to serve on their sentence, has served at least 25% of their sentenced prison term, and is serving a sentence for conviction of an offense other than for certain sex offenses.
Pursuant to 730 ILCS 5/5-8A-3(e), IDOC may place a person of any age serving a sentence for conviction of a Class 2, 3, or 4 felony offense which is not an excluded offense in an electronic monitoring or home detention program at any time.
Pursuant to 730 ILCS 5/5-8A-3(b) and (c), IDOC may place a person of any age serving a sentence for conviction of a Class 1 or Class X felony offense, other than an excluded offense, in an electronic monitoring or home detention program for a period not to exceed the last 90 days of incarceration.
Pursuant to the Administrative Code, 20 Ill. Adm. Code 107.210, the Director of IDOC may award to eligible prisoners up to 180 days of discretionary good conduct credit.
On March 23, 2020, advocates sent a detailed memo to the Governor’s office, setting forth further details of who the IDOC could and should be releasing based on these relevant statutes and administrative directives. This memo emphasized that IDOC should identify and release as many individuals as possible who are medically vulnerable with regard to COVID-19 as well as people who are over the age of 55. The memo also urged the Governor’s Office to order IDOC to immediately, inter alia: (1) transfer to home detention and electronic monitoring all eligible people serving sentences for Class 2-4 felonies pursuant to 730 ILCS 5/5-8A-3(e); (2) transfer to home detention and electronic monitoring all eligible people over the age of 55 who
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have less than 12 months left to serve on their sentence pursuant to 730 ILCS 5/5-8A-3(d); and (3) award discretionary good time credit pursuant to 20 Ill. Adm. Code 107.210 to the furthest extent possible to all eligible individuals to facilitate immediate and continuing releases.105
Despite this pressure from advocates, and despite the Governor’s own admissions that people in IDOC custody are especially vulnerable to contracting and spreading COVID-19, the IDOC is not utilizing its authority with any degree of urgency to identify and release medically vulnerable prisoners or prisoners who otherwise qualify for early release.
On March 31, 2020, officials publicly announced that IDOC has released around 300 individuals—or less than one percent of the prison population.106 This number is far lower than the population reduction needed to protect those who remain in custody and the surrounding communities. Moreover, many who qualify for release and are medically vulnerable remain in custody, including named plaintiffs here, putting their lives in jeopardy.
Corrections expert Dan Pacholke has opined that IDOC should “determine who, including those still housed in prisons, and those on work release, is within the categories . . . that IDOC or other body has the legal authority to release or transfer, and establish objective criteria, such as having an appropriate release address, to establish who could safely be released or transferred to a non-prison setting, even though many might still remain in IDOC custody. The criteria adopted should be designed to significantly reduce the prison population.”107
105 March 23 Letter, Exhibit 7. 106 The Governor’s Press Conferences are available for streaming at: https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefing-from-illinois-healthofficials/2234359/ (last visited March 31, 2020). 107 Ex. 5 (Pacholke Decl.).
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If IDOC does not act immediately to reduce its prison population, COVID-19 is likely going to spread rapidly throughout IDOC, overburdening IDOC’s medical care program and resulting in likely deaths.108 V. IDOC’s Medical Care Program is Gravely Under-Resourced and Under-
Functioning, and Is Not Capable of Managing COVID-19. Even before COVID-19, IDOC’s medical care program was ill-equipped to meet the medical needs of prisoners in its care. For over a decade, IDOC has been mired in litigation over its consistent failure to maintain a minimally adequate system. See Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.). In 2014 and again 2018, the Lippert court appointed teams of independent experts to conduct exhaustive reviews of IDOC’s medical system, both of which exposed a system in dire need of reform. In October 2018, the team of experts issued a 1200-page report, reaching the following the conclusions: The clinical care provided within IDOC was “extremely poor” and “resulted in preventable morbidity and mortality”; IDOC lacked an adequate infections disease control program; IDOC’s Infectious Disease Coordinator position was vacant and had been vacant since at least 2014; Systemic sanitation problems existed in at multiple IDOC facilities; IDOC’s medical staff vacancy rates were “very high” and staffing was a “critical problem” throughout IDOC; Physician staffing at IDOC was “very poor,” with “persistent and ongoing vacancies” in site medical director positions, high rates of turnover, and an over-reliance on “traveling” medical directors who go from site to site; and Physicians who worked at IDOC were improperly credentialed, which was “a major factor in preventable morbidity and mortality” and “significantly increase[ed] the risk of harm to patients within IDOC.”109
108 Ex. 3 (Haney Decl.). 109 Ex. 8 (Lippert Expert Report, October 2018) at 9-10, 21-31, 84-91.
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Less than one year ago, IDOC agreed to a consent decree, which was approved and entered by the Court in May 2019, to begin needed reforms. See Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.), Doc. No. 1238 (consent decree). The consent decree called for the appointment of an independent monitor and a near complete overhaul of IDOC’s medical system.
In the nine months since the Lippert consent decree was entered, IDOC has taken preliminary steps to comply, but circumstances within the facilities remain largely unchanged. IDOC is still only in early stages of developing a compliance plan. There has been no meaningful on the ground change yet; facilities are still critically under-staffed and underresourced. IDOC is simply unable to adequately meet the serious medical needs of IDOC’s population even under non-pandemic circumstances.
Even before the COVID-19 outbreak, in November 2019, the Lippert court monitor warned that the prevalence of elderly and infirm individuals in IDOC was straining the system.110 Regarding this population, the monitor noted: “It is the position of the monitor that in the short term additional IDOC resources must be directed to properly house and care for this population but in the near future the IDOC must take the lead to create a pathway to discharge those men and women whose mental and medical conditions make them no longer a risk to society to appropriate settings in the community.”111
Since the outbreak of COVID-19, IDOC administrators have issued memos to prisoners notifying them that their medical resources were “stretched thin” and that they needed to focus “on [their] most vulnerable patients at this time.”112
110 Ex. 9 (Lippert Court Monitor Report, November 24, 2019) at 9-10. 111 Id. 112 Ex. 10 (IDOC Memorandum, COVID-19 Response).
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As of the date of this filing, there are 48 confirmed COVID-19 cases at Stateville, with approximately 19 Stateville prisoners in outside hospitals—so many that they overwhelmed the outside hospital that typically serves Stateville residents. The situation at Stateville is so grave that the Governor had to activate Illinois National Guard service members to provide additional medical support at the prison.113 At this point there are no confirmed prisoner cases at any other prison, but there is no reason to believe that COVID-19 will not reach the other prisons. Likewise there is no reason to believe that Stateville’s tragic outcome will not repeat itself at other facilities. The time to act is now. VI. Many of the Named Plaintiffs Are Vulnerable Prisoners Who, If Exposed To the
Virus, Would Likely Suffer Severe Illness or Death. As set forth in Plaintiff’s Complaint and motion for class certification, Plaintiffs seek to represent a class of individuals in IDOC custody. They do not, however, seek relief for all class members in this motion. Instead, Plaitiffs seek relief only for those class members who are members of subclass 1 and subclass 2: Subclass 1: People who have serious 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),
113 Tina Sfondeles, Illinois National Guard medics headed to Stateville as inmate coronavirus cases rise, Chicago Suntimes (Apr. 1, 2020), available at https://chicago.suntimes.com/coronavirus/2020/4/1/21202995/coronavirus-covid-19-illinois-prisonstateville-national-guard-field-hospital (last visited Apr. 1, 2020).
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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, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
Subclass 2: People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
The men and women who are members of these subclasses have been convicted of one or more crimes. But these individuals are also human beings, with mothers and daughters, fathers and son, spouses and partners, or even simply friends on the outside who value them. And because of their particular vulnerabilities, they face an imminent risk of severe illness or death if they contract COVID-19. Those particularly vulnerable class members include, among others:
James Money, a 28-year-old man who is housed at Illinois River Correctional Center in Canton, Illinois. In 2016, Mr. Money was diagnosed with Stage 3 metastatic thyroid cancer. He has undergone several surgeries, most recently in January 2020, resulting in the removal of over 80 lymph nodes and a full thyroidectomy, and is now immunocompromised. He was scheduled to begin chemotherapy treatment on March 24, 2020, but IDOC cancelled his treatment, presumably to focus instead on COVID-19. Mr. Money has already served nearly 5 years of his sentence for residential burglary out of Adams County, and he is currently scheduled to be released on June 19, 2020. He is eligible for medical furlough pursuant to 730 ILCS 5/3-11-1 and discretionary good time pursuant to 20 Ill. Adm. Code 107.210. Mr. Money is also within 90 days of his release date, so he is eligible for transfer to home detention pursuant to 730 ILCS 5/58A-3(b). Mr. Money’s parole conditions have already been determined and he is approved to
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reside with his fiancée’s residence in Warsaw, Illinois. His fiancée is fully prepared to provide for his medical needs.
William Richard, a 66 year-old man who lives in the healthcare unit at Dixon Correctional Center. Mr. Richard has COPD, emphysema, and heart disease, and uses a wheelchair for movement. His respiratory disease requires continuous oxygen and a breathing treatment two to three times per day. He shares his roughly 12 feet by 15 feet cell with three other individuals, making social distancing impossible—his bunk is less than 5 feet from his cellmate’s bunk, and all four men share a toilet, sink, and the chuckhole through which they receive their meals. Mr. Richard has less than four months remaining on his sentence, and is eligible under 730 ILCS 5/5-8A-3(d) to transfer to home detention at his mother’s home.
Gerald Reed, a 57-year-old man who is housed at the Northern Reception Center. Mr. Reed has heart failure, hypertension, and is pre-diabetic. Mr. Reed uses a wheelchair for mobility because of a decades-old leg injury that adversely affects his mobility. Within the last year, Mr. Reed has been hospitalized for a heart attack and for pneumonia. At the NRC, he is prohibited from accessing commissary and is only provided a single, small bar of soap. Pursuant to 730 ILCS 5/3-11-1, Mr. Reed is eligible for medical furlough at his mother’s home.
Tewkunzi Green, a woman who currently is housed at Logan Correctional Center in Lincoln, Illinois. She has asthma and severe hypertension for which she takes multiple medications. In January 2019, she fainted related to hypertension and was held in the cardiology unit of an off-site hospital for several days. At Logan, Ms. Green shares a room with three other women. Ms. Green has a pending commutation petition, which was filed by the January 23, 2020, filing deadline; her hearing date of April 7, 2020 was postponed and she is now being scheduled for a non-public hearing. She is also eligible for medical furlough under 730 ILCS
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5/3-11-1. Ms. Green has a stable housing plan in that her mother, who owns her own home in Peoria, Illinois, where she also cares for Tewkunzi’s 13-year-old son, is willing and able to receive Ms. Green at any time.
Danny Labosette, a 56-year-old man who is currently housed at Robinson Correctional Center in Robinson, Illinois. Mr. Labosette is a double amputee; his left leg has been amputated above the knee, and his right foot has been amputated. Mr. Labosette uses a wheelchair. Mr. Labosette also has untreated Hepatitis C. Mr. Labosette is housed in the Transitions Unit, a treatment facility within Robinson Correctional Cell. Social distancing is impossible for Mr. Labosette—he resides in a dorm with roughly 20 other men. He sleeps in the bottom bunk of a bunk bed, which is 3 feet away from the neighboring beds. Mr. Labosette has less than six months remaining on his sentence, and is eligible under 730 ILCS 5/5-8A-3(d) to be transferred to home detention at his mother’s home in Florida, which has already been modified to accommodate his disabilities.
Carl Reed, a 59-year-old man who is currently housed at Graham Correctional Center in Hillsboro, Illinois. Mr. Reed suffers from chronic kidney disease—requiring dialysis three days per week—diabetes, hypertension, and underlying neurological impairments. A doctor who is an expert in correctional health care has reviewed Mr. Reed’s medical records and recommends his immediate release for Mr. Reed’s health and safety. Mr. Reed has eight years left on his sentence, and he is eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. He has a pending petition for executive clemency, and he has a stable housing plan for his release: he can live with his sister in Chicago.
Carl “Tay Tay” Tate, a 40-year-old transgender woman diagnosed with Gender Dysphoria, who is housed at Danville Correctional Center. Ms. Tate has almost six years left of
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her sentence to serve. Ms. Tate lives with hypertension, for which she takes medication. Ms. Tate also lives with severe anxiety, and the COVID-19 outbreak has only increased her anxiety. She shares a small cell with one other person. Even with current limits on the number of people in the unit who are allowed out of their cells to use the communal dayroom, Ms. Tate estimates that around 24 people may be in the dayroom at a time. She estimates that around 75 people may be in the yard. Ms. Tate also works as a laundry porter, which places her in frequent contact with other prisoners and staff. She has asked for gloves to use, and has been denied. She has also asked for more cleaning supplies to clean the dayroom, including the phones, and has been denied. It is impossible for Ms. Tate to practice social distancing in her living situation. Ms. Tate has a pending clemency petition—which has the support of 40 organizations across the state— and her hearing date of April 7, 2020 was postponed and is being rescheduled. Ms. Tate has a stable housing plan in place for when she is released: she will live with her sister who resides in Lansing, Illinois.
These Named Plaintiffs, all of whom face particular risks when a COVID-19 outbreak occurs in their facility, represent other prisoners who, like them, are eligible for temporary medical furlough so that they can self-isolate.
NOTICE TO DEFENDANTS On April 1, 2020, counsel for Plaintiffs gave notice of their intent to file this action to the Office of the Governor, Chief Legal, Chief Legal Counsel for the IDOC, and the Office of the Attorney General.
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ARGUMENT Plaintiffs are prisoners in the custody of the State of Illinois, and subclasses 1 and 2, for whom they seek relief, are prisoners who are especially vulnerable to COVID-19 because of their advanced age or underlying medical conditions. Although the larger world has taken radical steps to contain this disease, the Plaintiffs are powerless to adopt even simple protective measures to remain safe. Under current conditions, it is overwhelmingly likely that thousands of prisoners will contract a lethal virus with no cure. Without urgent action, countless prisoners will become seriously ill or die within a matter of weeks or months. The Plaintiffs therefore request that the Court grant a temporary restraining order or a permanent injunction to allow them to self-isolate at home via temporary medical furlough. A plaintiff seeking a preliminary injunction or 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.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 769 (7th Cir. 2011). With regard to the first factor, “[f]or purposes of a TRO or preliminary injunction, a plaintiff need only establish a ‘trivial chance of succeeding on the merits.’” Frullati Franchise Sys., Inc. v. Dana Areece & Co., 2001 WL 743427, at *2 (N.D. Ill. June 28, 2001) (quoting Green River Bottling Co. v. Green River Corp., 997 F.2d 359, 361 (7th Cir. 1993)); see also Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017) (a party moving for a preliminary injunction need “only show that his chances to succeed on his claims are better than negligible” (internal quotation marks omitted)). In addition, “the more likely a plaintiff’s success on the merits, the less the balance of harms needs to favor its side to
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justify relief, while a greater showing that the balance of harms favors the plaintiff may offset a lower probability of success on the [merits].” Aon Risk Servs. Cos. v. Alliant Ins. Servs., Inc., 415 F. Supp. 3d 843, 847 (N.D. Ill. 2019); see also Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (“How strong a claim on the merits is enough depends on the balance of harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.”).
Once a plaintiff demonstrates entitlement to preliminary relief, courts have broad power to fashion equitable remedies to address constitutional violations in prisons. Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978). And although courts must “be sensitive to the State’s interest[s]” in imprisonment, courts “must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners [and] . . . 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. 493, 511 (2011).
Action by this Court is necessary here. There is no vaccine or cure for COVID-19. And the conditions at IDOC inherently make social distancing and other imperative protective measures impossible. As such, the only way to protect against the imminent risk of substantial harm and possible death for the two subclasses of prisoners who are most vulnerable to the virus—people with serious underlying medical conditions eligible for medical furlough, and people over the age of 55 eligible for medical furlough—is to immediately transfer them on temporary medical furlough to their homes to shelter in place before they contract the virus. Injunctive relief is necessary because the danger here, vulnerable people condemned to prolonged illness and potential death, is the quintessential irreparable harm. See, e.g., Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001) (“[P]ain, suffering and the risk of death
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constitute ‘irreparable harm’ sufficient to support a preliminary injunction in prison cases.”). There is also an overwhelming public interest in limiting the spread of COVID-19, both to minimize further infections and to reduce strain on overwhelmed health systems. And, in light of the global COVID-19 pandemic, the balance of equities weighs heavily in favor of the vulnerable prisoners, who must be transferred on medical furlough to their homes to self-isolate, and against Defendants’ interest in indefinitely confining the Plaintiffs in life-threatening conditions. This Court should order that people with serious underlying medical conditions eligible for medical furlough, and people over the age of 55 eligible for medical furlough be immediately transferred on medical furlough to home confinement. I. Plaintiffs Are Likely to Succeed on the Merits of Establishing a Constitutional
Violation. Plaintiffs are likely to establish that their conditions of confinement in IDOC custody place them at substantial risk of harm from COVID-19, in violation of their Eighth Amendment rights. Additionally, Plaintiffs are likely to also establish that the denial of medical furlough or home detention placement to subclass members who are medically vulnerable to COVID-19 (subclass 1), placing them at significant and disparate harm’s way is a violation of the Americans with Disabilities Act. A. Plaintiffs Are Likely to Succeed on the Merits on Their Constitutional
Claims. Plaintiffs are likely to establish that their conditions of confinement in IDOC custody render them at substantial risk of contracting COVID-19 and suffering prolonged injury and possible death. The Supreme Court has long held that 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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State officials instead have a responsibility under the Eighth Amendment to “take reasonable measures to guarantee the safety of the inmates . . . .” Id. at 832. The Seventh Circuit has held that the Eighth Amendment is violated by the conditions of a prisoner’s confinement when “(1) there is a deprivation that is, from an objective standpoint, sufficiently serious that it results in the denial of the minimal civilized measure of life’s necessities, and (2) where prison officials are deliberately indifferent to this state of affairs.” Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (internal quotation marks omitted).
In Helling v. McKinney, 509 U.S. 25 (1993), the Supreme Court held that the Eighth Amendment forbids deliberate indifference to conditions that “pose an unreasonable risk of serious damage to . . . future health.” Id. at 35. The Supreme Court in Helling addressed exposure to secondhand smoke, but it recognized that “deliberate indifference to the exposure of inmates to a serious, communicable disease” would similarly violate the Eighth Amendment, even if a prisoner currently shows no serious symptoms. Id. at 33. The Seventh Circuit has similarly recognized that the Eighth Amendment protects prisoners from known exposure to serious diseases, holding that in such a circumstance, “[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.” Powers v. Snyder, 484 F.3d 929, 931 (7th Cir. 2007); see also McDonald v. Hardy, 821 F.3d 882, 889 (7th Cir. 2016) (explaining that the Eighth Amendment does not excuse deliberate indifference simply because harms “have not yet reached the point of causing acute or life-threatening injuries”).
The Plaintiffs in this case are being detained in conditions that dramatically increase the likelihood that they will contract COVID-19 and fall seriously ill because they cannot maintain adequate social distancing as mandated by the CDC. Plaintiffs are housed in close quarters,
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forced to eat, sleep, bathe, and perform all daily life activities in a communal setting. Ex. 1 (Greifinger Decl.) ¶¶ 16-18; Ex. 3 (Haney Decl.) ¶ 6; Ex. 4 (Beyrer Decl.) ¶¶ 11-14. Illinois Department of Public Health (IDPH) Director Dr. Ngozi Ezike acknowledged that IDOC prisons are “[c]ongregate settings” where individuals “live and work and eat and study and recreate all within the same environment, heightening the potential for COVID-19 to spread really quickly once it’s introduced.” Dr. Ngozi Ezike, IDPH, COVID-19 Press Update, 23:30–23:48 (Mar. 30, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseasesa-z-list/coronavirus/media-publications/daily-press-briefings (last visited Apr. 1, 2020). The risks posed by IDOC’s congregate settings are exacerbated by lack of access to Personal Protective Equipment (PPE) for prisoners and many staff members, Ex. 1 (Greifinger Decl.) ¶¶ 19-21, 23), poor ventilation, Ex. 2 (Meyer Decl.) ¶ 9; Ex. 4 (Beyrer Decl.) ¶ 14, and a lack of per-use cleaning of shared items like toilets, sinks, and showers, which are almost always accessed by numerous individuals before they are sanitized. Ex. 1 (Greifinger Decl.) ¶ 17; Ex. 2 (Meyer Decl.) ¶ 9; Ex. 4 (Beyrer Decl.) ¶ 14; Ex. 3 (Haney Decl.) ¶ 8.
Prisoners simply cannot maintain proper social distancing given the nature of Illinois’s facilities, whether housed with large numbers of people like Plaintiff Labosette (who is housed in a 20-person dorm), in a small cell with fewer people in close proximity like Plaintiff Richard (in a small four-person cell in the healthcare unit), or in a two-person cell, like Plaintiff Tate (who is never more than few feet from her cellmate). Prisoners share their dayrooms and showers, and must rely on multiple staff to prepare and deliver their meals and medications. Plaintiffs are at the mercy of security and medical staff, who may carry the virus without showing symptoms, and who often are not able to take even simple precautions like wearing face masks and disposable gloves. See generally Ex. 11 (Declarations from Class Members’ Loved Ones); see
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also Dr. Ngozi Ezike, IDPH, COVID-19 Press Update Video, at 11:33-11:56 (Mar. 29, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-zlist/coronavirus/media-publications/daily-press-briefings (“As a former medical director in a correctional facility, I know all too well about the traffic of staff going in and out of the facilities daily, detained individuals leaving for court appearances, and the rate of turnover . . . all of these comingle and increase the rate of infection and its fast spread through these facilities.”) (last visited Apr. 1, 2020); (Greifinger Decl. ¶ 18) (“Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.”).
Plaintiffs are themselves at an especially high risk of harm from the virus due to the high rates of chronic health conditions, substance use, and mental health issues within the class. Ex. 3 (Haney Decl.) ¶ 7; Ex. 4 (Beyrer Decl.) ¶ 16. And history teaches that when an epidemic occurs nationally, people in custody experience a disproportionately high number of cases. Ex. 2 (Meyer Decl.) ¶ 19. At Rikers’ Island, for example, the infection rate is nearly eight times the rate of infection for New York City, and 73 times higher than the national infection rate. See COVID-19 Infection Tracking in NYC Jails, Legal Aid Society, available at https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ (last visited Mar. 31, 2020).
COVID-19 is already in IDOC facilities across the state: 25 IDOC employees have tested positive, 52 IDOC prisoners have tested positive, and 187 tests remain outstanding. See COVID19 Response, IDOC, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited Apr. 1, 2020). That number has increased by double each day over the past week since the first positive test was announced on March 26. And all of the evidence indicates that the number of individuals with COVID-19 will increase by multiples in the coming days and weeks.
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Under these circumstances, the two subclasses for which relief is sought in this motion— people with serious underlying medical conditions eligible for medical furlough, and people over the age of 55 eligible for medical furlough—are especially likely to succeed on the merits of their claims given their susceptibility to COVID-19. These vulnerable prisoners face a nearcertain risk of serious illness and possible death if and when they contract the virus in IDOC custody.
Elderly prisoners and those with underlying medical conditions typically experience COVID-19 symptoms more severely and are far more likely to develop complications as a result of the virus. Ex. 1 (Greifinger Decl.) at ¶¶ 4–5, 8. Prisoners over the age of 55 without any underlying medical conditions face a 1.3–8% mortality rate. And as noted above, vulnerable prisoners who suffer from cardiovascular disease face a 13.2% mortality rate, hypertensive prisoners face an 8.4% mortality rate, and prisoners with chronic respiratory disease face an 8.0% mortality rate. In other words, a prisoner suffering from cardiovascular disease who contracts COVID-19 faces roughly the same odds of survival as he would playing Russian roulette. Additionally, individuals with certain conditions, such as those that affect the immune system, are also more likely to contract the disease.
Federal courts across the country have granted temporary restraining orders brought on behalf of vulnerable individuals in custody. See, e.g., Thaker, et al. v. Doll, et al., No. 20 C 0480, Dkt. 47 (M.D. Pa. Mar. 31, 2020); Coronel, et al. v. Decker, et al., No. 20 C 2472, Dkt. 26 (S.D.N.Y. Mar. 27, 2020); Basank, et al. v. Decker, et al., No. 20 C 2518, Dkt. 11 (S.D.N.Y. Mar. 26, 2020); Flores, et al. v. Barr, et al., No. 85 C 4544, Dkt. 740 (Mar. 28, 2020). In Thaker, the district court recognized 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
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ghastly . . . . The choice we now make must reflect this new reality.” Thaker, No. 20 C 0480, Dkt. 47 at 24. The district court found that even though the 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 suffer from chronic medical conditions and face a serious threat of injury or death if exposed to COVID-19. Id. at 2, 24–25.
Simply put, Plaintiffs are sitting in tinderboxes throughout the State of Illinois. Defendants are aware of this fact, and they are also aware that the only way to protect the vulnerable prisoners for whom relief is requested from serious harm is to immediately transfer them to their homes through a medical furlough to shelter in place. As discussed, the evidence in support is overwhelming. Powers, 484 F.3d at 931. Under Illinois law, Defendants have unlimited ability to act, 730 ILCS 5/3-11-1(a)(2), but have chosen instead to leave 99.2% of individuals in IDOC custody in their tinderboxes to suffer.114 Such a failure to meaningfully act in the face of an unprecedented pandemic that is killing thousands is clear indifference that leaves Plaintiffs—and particularly the vulnerable Plaintiffs for whom emergency relief is sought—at imminent risk of serious harm and death.
114 In relevant part, 730 ILCS 5/3-11-1 allows the IDOC to “extend the limits of the place of confinement of a committed person under prescribed conditions so that he may leave such place on furlough.” 730 ILCS 5/3-11-1(a). Furlough may be granted for many reasons, including “obtain[ing] medical, psychiatric or psychological services when adequate services are not otherwise available . . . .” 730 ILCS 5/3-111(a)(2).
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B. Plaintiffs Are Likely to Succeed on the Merits on Their ADA Claims for Subclass 1.
Defendants’ failure to place prisoners with underlying medical conditions that make them particularly vulnerable to COVID-19 on furlough or home detention, where they could quarantine safely, is discrimination within the meaning of the Americans with Disabilities Act (ADA). IDOC is failing to provide a reasonable accommodation that is readily available and that would avoid the disparate impact (increased risk of infection, medical complications, and death) that will occur if IDOC continues to keep these medically vulnerable people in the prison facilities.
The ADA prohibits public entities, including state prisons, from discriminating on the basis of disability. Under the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Discrimination includes failing to make reasonable modifications (also termed “reasonable accommodations”) that would allow a person with a disability to participate in a service, program or activity. 28 C.F.R. § 35.130(b)(7). “Program or activity” under Title II “applies to anything a public entity does.” Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 782 (7th Cir. 2002).
Subclass 1 plaintiffs, those who have serious medical conditions that make them particularly vulnerable to COVID-19, are qualified individuals with disabilities under the ADA. The ADA defines disability as having an impairment that substantially limit “major life activities.” 42 U.S.C. § 12102(2). “Major life activities” include “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
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reproductive functions.” Id. By definition, they have substantial physical impairments that already constitute disabilities under the ADA. By virtue of being incarcerated, they are qualified for the “program and service” of IDOC at issue, which is the safe care that IDOC has a duty to provide to those in custody. That safety is denied in this pandemic by IDOC’s failure to provide them with the available accommodation of furlough or home detention.
Defendants are violating Title II of the ADA by holding subclass 1 plaintiffs in unduly dangerous conditions that place them at a disproportionate risk of medical complication and death despite the availability of a readily available modifications that would allow them to safely quarantine through furlough or home detention. In this regard, and for all the same reasons are described above relating to Plaintiffs’ Eighth Amendment claims, Plaintiffs are likely to succeed on the merits of their ADA discrimination claim, under theories of either denial of reasonable accommodations or disparate impact.
1. The IDOC Must Provide Reasonable Modifications to Prevent Discrimination Against People With Disabilities (Subclass 1).
The Department of Corrections is a public entity required to make reasonable accommodations in order to avoid discrimination on the basis of disability. See, e.g., Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998). The regulations implementing Title II of the ADA require that a public entity:
make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7). The Seventh Circuit has held that public entities have an independent duty to take “prophylactic” steps to accommodate individuals with disabilities when necessary to avoid
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discrimination. Wisc. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006). In other words, a plaintiff can “demonstrate discrimination on the basis of disability by [the City’s] refusal to make a reasonable accommodation.” Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 848 (7th Cir. 1999). See also McCoy v. Tex. Dep’t Crim. Justice, 2006 WL 2331055, at *7 and n. 6 (S.D. Tex. Aug. 9, 2006) (“failure to make reasonable accommodations to the needs of a disabled prisoner may have the effect of discriminating against that prisoner because the lack of an accommodation may cause the disabled prisoner to suffer more pain and punishment than non-disabled prisoners.”).
2. The IDOC Must Provide the Reasonable Modifications to Avoid the Disparate Harm to People With Disabilities (Subclasses 1 and 2).
A disparate impact violation occurs where the entity, here IDOC, “adopt[ed] a policy or practice that is ‘facially neutral in [its] treatment of different groups but that in fact fall[s] more harshly on one group than another and cannot be justified by [a nondiscriminatory] necessity.’” Swan v. Bd. of Educ., No. 13 C 3623, 2013 WL 3872799, at *5 (N.D. Ill. July 25, 2013) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003)).
While Defendants’ COVID-19 practice relating to release and transfer is neutral on its face, it causes far more suffering and harm to prisoners who are medically vulnerable than to those who are not. See McCoy v. Tex. Dep’t Crim. Justice, 2006 WL 2331055, at *7 n.6 (S.D. Tex. Aug. 9, 2006) (“failure to make reasonable accommodations to the needs of a disabled prisoner may have the effect of discriminating against that prisoner because the lack of an accommodation may cause the disabled prisoner to suffer more pain and punishment than the non-disabled prisoner.”).
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II. Infection With a Lethal Virus That Lacks Any Vaccine or Cure Constitutes Irreparable Harm. Plaintiffs have moved for a temporary restraining order and preliminary injunction for
those prisoners who are most vulnerable because the difference of even just a few days is a matter of life and death. Cases of COVID-19 have increased exponentially in a matter of weeks. See supra pg. 4. And the virus has already spread to detention facilities throughout the state.
Given the deadliness of the disease and the state’s already over-taxed medical system, there is a substantial possibility that absent immediate relief from the Court, vulnerable prisoners will be infected with COVID-19. And these vulnerable Plaintiffs are older adults or people with pre-existing medical conditions that increase the likelihood of severe illness or death if they contract COVID-19. For some of these vulnerable people, their chances of survival are approximately the same as the chance of survival while playing Russian roulette. Even for those who survive infection, there may be a prolonged recovery, including the need for extensive rehabilitation, neurological damage, and the loss of respiratory capacity.
These life-and-death stakes are sufficient to establish a likelihood of irreparable harm in support of injunctive relief. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1090 (7th Cir. 2008) (irreparable harm means that the plaintiff cannot be “prevented or fully rectified by the final judgment after trial”); Orr v. Shicker, ___ F.3d ___, 2020 WL 1329659, at *9 (7th Cir. Mar. 23, 2020) (irreparable harm is that which “cannot be repaired and for which money compensation is inadequate” (internal quotation marks omitted)). “The existence of a continuing constitutional violation constitutes proof of an irreparable harm.” Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978) (affirming grant of preliminary injunction in prison conditions case); Jones’El v. Burge, 164 F. Supp. 2d 1096, 1123 (W.D. Wis. 2001) (“Put more specifically, pain, suffering and the risk of death constitute irreparable harm
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sufficient to support a preliminary injunction in prison cases.” (internal quotation marks omitted)).
Even the failure to test for a disease has been sufficient to support a finding of irreparable harm. See Boone v. Brown, 2005 WL 2006997, at *14 (D.N.J. Aug. 22, 2005) (allegation of refusal to provide adequate testing for highly contagious infectious disease sufficient to demonstrate irreparable harm); Austin v. Pa. Dep’t of Corr., 1992 WL 277511, at *7 (E.D. Pa. Sept. 29, 1992) (granting preliminary injunction for prison to develop testing and protocol for Tuberculosis); see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (state officials have an affirmative obligation to protect prisoners from infectious disease).
The risks here are even more extreme, and the IDOC’s ongoing failure to provide conditions that allow people in its custody to perform the CDC-mandated protective measures, including social distancing, risks irreparable harm to Plaintiffs. See Jones’El, 164 F. Supp. 2d at 1125-26 (recognizing that constitutionally inadequate conditions at supermax justified granting injunctive relief). The Constitution does not require that the vulnerable Plaintiffs whose request for relief is at issue in this motion wait until they have contracted or been exposed to COVID-19 before obtaining injunctive relief. Thaker, Dkt. 47 at 8 (“Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable to due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisoners, but when it is finally detected therein.”); Coronel, Dkt. 26 at 5 (“Due to their serious underlying medical conditions, all Petitioners face a risk of severe, irreparable harm if they contract COVID-19.”).
A review of the medical conditions suffered by several of the Named Plaintiffs demonstrates the irreparable harm these vulnerable prisoners will face if this Court does not
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grant them relief. Plaintiff Money, for example, suffers from Stage 3 metastatic thyroid cancer that renders him immunocompromised. Plaintiff Richard requires the use of a wheelchair and suffers from COPD, emphysema, and heart disease. Plaintiff Gerald Reed also requires the use of a wheelchair, and simultaneously suffers from hypertension and heart disease. Plaintiff Green suffers from severe respiratory and cardiovascular disease. Plaintiff Carl Reed suffers from chronic kidney disease and other ailments, including diabetes and hypertension, that render him medically vulnerable. Each one of these Named Plaintiffs, and several other unnamed putative class members, suffer an imminent risk of severe illness or death when a COVID-19 positive individual comes into the prison. Simply put, their lives are on the line and the harm they face is clearly irreparable. III. There is a Strong Public Interest in Minimizing the Spread of COVID-19 Through
Social Distancing and Hygiene Practices That Are Impossible in IDOC Prisons. It is always in the public interest to prevent the continuing violation of a plaintiff’s constitutional rights. See Joelner v. Vill. of Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004) (“[s]urely upholding constitutional rights serves the public interest) (quoting Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 261 (4th Cir.2003)); see also Preston, 589 F.2d at 303 n. 3 (“[t]he existence of a continuing constitutional violation constitutes proof of an irreparable harm, and its remedy certainly would serve the public interest.”). And in this case the public interest in minimizing the spread of COVID-19 is overwhelming and nearly impossible to overstate. As noted above, COVID-19 is highly contagious and has substantially higher mortality rates than any other disease with its rate of transmission. The disease has no vaccine or cure, meaning that each new infection may result in several more individuals becoming infected. Public health experts have thus unanimously agreed that the most critical actions that can be
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taken are preventive measures like self-isolating, maintaining a distance of six feet from all other individuals, and frequent disinfection.
These measures are simply not possible within the confines of IDOC’s prisons, which are inherently congregate settings that require close interactions between individuals, both prisoners and staff, throughout each day. Even attempts at sanitization within the IDOC risk the spread of COVID-19, since staff are only able to provide prisoners with buckets of watered down to clear their cells, and those buckets are passed between cells, from prisoner to prisoner. Prisoners are thus destined to become vectors of disease, and will inevitably infect several other prisoners, IDOC employees, prison medical staff, and eventually, healthcare workers in the community when critically infected prisoners are sent to nearby hospitals to be treated. The results will be devastating for the dozens of Illinois communities where IDOC prisons are located, and are a needless consequence of the conditions of confinement within the IDOC itself.
The situation at Stateville demonstrates this fact. IDOC announced its first confirmed case at Stateville on Wednesday, March 25, 2020. IDPH, Public Health Officials Announce 330 New Cases of Coronavirus Disease, (Mar. 25, 2020), available at http://www.dph.illinois.gov/news/public-health-officials-announce-330-new-cases-coronavirusdisease (last visited Apr. 1, 2020). Just five days later, IDPH Direct Dr. Ezike announced that 12 prisoners had been hospitalized with confirmed cases of COVID-19, with another 77 prisoners suffering symptoms of the virus. IDPH, Public Health Officials Announce 461 New Cases of Coronavirus Disease, (Mar. 30, 2020), available at http://www.dph.illinois.gov/news/publichealth-officials-announce-461-new-cases-coronavirus-disease. The following day, Governor Pritzker announced that at least one prisoner had died from the virus. Emily Hoerner, Edlerly inmates are at high risk for coronavirus. Why are there so many of them in Illinois’s prisons?,
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InjusticeWatch, available at https://www.injusticewatch.org/news/2020/elderly-inmates-are-athigh-risk-for-coronavirus-why-are-there-so-many-of-them-in-illinoiss-prisons/ (last visited Apr. 1, 2020). St. Joseph Hospital, the community hospital where Stateville prisoners with the disease had been taken, announced it was “overwhelmed” by individuals from Stateville, and that staff were already “maxed out.” Chuck Goudie and Barb Markoff, Illinois Prisoners Sick with COVID-19 “Overwhelm” Joliet Hospital, ABC 7 NEWS, (Mar. 30, 2020), available at https://abc7chicago.com/health/illinois-prisoners-sick-with-covid-19-overwhelm-joliethospital/6064085/ (last visited Apr. 1, 2020). As of the date of this motion, 64 individuals who live and work at Stateville have tested positive for COVID-19, and hundreds of lab results remain outstanding. See COVID-19 Response, IDOC, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited Apr. 1, 2020).
The vulnerable prisoners at issue in this motion—prisoners with underlying medical conditions and those over the age of 55—are most likely to require hospitalization if and when they contract COVID-19 while in custody. It is essential to the public interest to permit these prisoners to return to their home through a temporary medical furlough to drastically reduce their risk of contracting the virus and overwhelming the State of Illinois’s medical system. And the public interest is further served by the medical furloughs because it allows for all of the remaining Plaintiffs to practice greater social distancing and because it prevents overloading the work of detention staff, whose resources are already strained. IV. The Balance of Equities Favors Releasing Vulnerable Plaintiffs Over Continued
Detention in the Midst of this Public Health Crisis. The balance of equities weighs in favor of ordering vulnerable prisoners—those with underlying medical conditions and those over the age of 55—to be transferred to their homes via a temporary medical furlough to self-isolate until the pressing risk of this pandemic has passed.
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Plaintiffs acknowledge that they are in custody after having been found guilty of committing a crime, and accordingly do not seek their release. Instead, Plaintiffs ask simply that these particularly vulnerable individuals be transferred to their homes while still in IDOC custody being monitored via electronic monitoring to self-isolate until the emergency abates.
As the district court in Thaker noted, “the status quo of a mere few weeks ago no longer applies.” Dkt. 47 at 24. These vulnerable prisoners’ lives are on the line, as are the lives of the members of the community who face greater exposure as a result of the prisoners continued detention. These facts outweigh the Defendants’ interests in retribution through incarceration in a place of their choosing. Defendants have already released some individuals through medical furloughs and transfer to home detention and electronic monitoring, demonstrating their ability to identify and place individuals in safe homesites even during this public health emergency.
Plaintiffs anticipate that Defendants will argue that a balance of equities does not favor Plaintiffs’ request because it poses a public safety risk. Again, Plaintiffs do not ask this Court to release any individuals from IDOC custody. And although ensuring that these individuals return to custody once the pandemic abates is important, the risk of absconding is low. Many of these vulnerable prisoners lack the physical ability to abscond, and electronic monitoring helps to ensure that the individuals for whom Plaintiffs seek release will remain safely in their homes. The restricted state of travel within the United States and the around world during this pandemic makes the probability that prisoners will abscond even lower still.
For the vulnerable prisoners seeking relief—prisoners with underlying medical conditions who face a particular risk of severe illness and death from exposure to COVID-19, and those who are medically vulnerable because of their age—Plaintiffs’ request is a matter of life and death. The balance of the equities in this case favors life.
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V. This Court Should Not Require Plaintiffs to Provide Security Prior to Issuing a Temporary Restraining Order. Under Rule 65(c) of the Federal Rules of Civil Procedure, district courts have discretion
to determine the amount of the bond accompanying a preliminary injunction, and this includes the authority to set a nominal bond. In this case, the Court should waive bond because Plaintiffs are indigent, the requested preliminary injunction is in the public interest, and the injunction is necessary to vindicate constitutional rights. See Pocklington v. O'Leary, 1986 WL 5748, at *2 (N.D. Ill. May 6, 1986) (“[B]ecause of [a prisoner’s] indigent status, no bond under Rule 65(c) is required.”); Davis v. Mineta, 302 F.3d 1104, 1126 (10th Cir. 2002) (“minimal bond amount should be considered” in public interest case); Complete Angler, L.L.C. v. City of Clearwater, 607 F.Supp.2d 1326, 1335 (M.D. Fla. 2009) (“Waiving the bond requirement is particularly appropriate where a plaintiff alleges the infringement of a fundamental constitutional right.”).
CONCLUSION The country faces a public health crisis of epic proportions. COVID-19 presents risks to all of us, and has forced us to come together to make tough decisions that are necessary to reduce the number of fatalities caused by the virus. We must allow everyone to engage in practices that flatten the curve, including social distancing and rigorous hygiene—particularly for those among us who are most vulnerable. This is simply not possible in IDOC prisons today. Defendants have left highly vulnerable prisoners to sit in their cells and wait for this disease to rip through their prisons, leaving death and severe illness in its wake. The Constitution demands better. This Court should grant Plaintiffs’ motion, preliminarily certify Plaintiffs’ proposed subclasses 1 and 2, and order Defendants to transfer the following individuals to their homes to self-isolate via a temporary medical furlough:
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c.

People who have serious underlying medical conditions that put them at

particular risk of serious harm or death from COVID-19, including but not

limited to: those with chronic lung disease or moderate to severe asthma, people

with heart disease, people who are immunocompromised due to cancer or other

medical conditions or treatment, people with severe obesity, people with any

other underlying serious medical conditions such as those with diabetes, renal

failure, liver disease, and 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 and who are eligible for medical furlough pursuant

to 730 ILCS 5/3-11-1; and

d. People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.

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Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 72 of 73 PageID #:257

Respectfully submitted,
/s/ Sarah Grady Sarah Grady Attorney for Plaintiffs

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 sheila.bedi@law.northwestern.edu LukeFernbach2021@nlaw.northwestern.edu EmilyGrant2021@nlaw.northwestern.edu ttollner@nlaw.northwestern.edu *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932 vanessa.delvalle@law.northwestern.edu
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465 jennifer@illinoisprisonproject.org
Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411 alan@uplcchicago.org liz@uplcchicago.org

Sarah Grady Steve Weil Loevy & Loevy 311 North Aberdeen St., 3rd Floor Chicago, IL 60607 (312) 243-5900 sarah@loevy.com
Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Ave, Suite 300 Chicago, IL 60602 (312) 341-0022 amanda@equipforequality.org samantha@equipforequality.org

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Case: 1:20-cv-02093 Document #: 9 Filed: 04/02/20 Page 73 of 73 PageID #:258 CERTIFICATE OF SERVICE
I, Sarah Grady, an attorney, hereby certify that on April 2, 2020, I caused a copy of the foregoing Plaintiffs’ Emergency Motion for a Temporary Restraining Order or Preliminary Injunction 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 IDOC’s Chief Legal Counsel, Deputy Legal Counsel for the Office of the Governor, and the Illinois Attorney General’s Chief Deputy.
/s/ Sarah Grady Sarah Grady Attorney for Plaintiffs
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EXHIBIT 1

Case: 1:20-cv-02093 Document #: 9-1 Filed: 04/02/20 Page 2 of 6 PageID #:260
Affidavit of Robert B. Greifinger, MD
I, Robert B. Greifinger, certify as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and coauthor of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am very familiar with correctional facilities, having toured and evaluated the medical care in several hundred correctional facilities across the nation. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 465,915 people have been diagnosed with COVID-19 around the world and 21,031 have died.2 In the United States, at least 85,724 people have been diagnosed and at least 1,275 people have died thus far.3 These numbers are likely a severe underestimate, due to the lack of availability of testing.
4. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19 and there is unlikely to be a vaccine for at least a year. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to mitigate COVID-19 transmission is to use scrupulous hand hygiene and social distancing.
5. When infected, people in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. The U.S. Centers for Disease Control and Prevention (CDC) recently reported that the risk of
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed March 27, 2020. 3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed March 27, 2020.

Case: 1:20-cv-02093 Document #: 9-1 Filed: 04/02/20 Page 3 of 6 PageID #:261
serious disease and death among those with COVID-19 increases with age, with 78% of reported deaths occurring in people over the age of 65. More than 50% of COVID19 related intensive care admissions and more 80% of COVID-19 deaths were among people 65 years old or older.4 Early reports from China show that nearly half of those with the coronavirus had comorbidities, or underlying health conditions.
6. In the United States, younger adults with COVID-19 have been severely affected by the disease as well. While people under the age of 20 have largely been protected from severe effects of the coronavirus, 55% of COVID-19 hospitalizations and 20% of deaths were from people between the ages of 20 and 64.5
7. Mortality is high among those with COVID-19 who become severely affected. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that are in very short supply.
8. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that increase the risk of serious COVID-19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, and neurological and neurologic and neurodevelopmental conditions.
9. A primary concern of medical and public health experts and public officials is the effect that the pandemic is having and will have on health systems. Because severe COVID-19 cases require extended hospitalization and intensive medical care, a significant number of COVID-19 cases can quickly overwhelm a health system. This is true in urban areas but is particularly true in rural areas where health care facilities have far more limited capacity to respond to an increase in patients who need hospitalization and intensive care.
10. The only way to mitigate the rapid spread of COVID-19 is to use scrupulous hand hygiene and social distancing, self-quarantine for individuals who may have been exposed, and isolation at a home or care facility for those who have been infected. The recommended hand hygiene measures are frequent handwashing with soap and water, and the use of alcohol-based sanitizers when handwashing is unavailable. Surfaces such as doorknobs and light switches which have a high degree of human contact should be cleaned and disinfected regularly with bleach.
11. Recognizing the urgency and severity of the pandemic, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of a risk mitigation strategy.
12. Illinois has been hit hard by COVID, with at least 2,538 cases and at least 26 deaths
4 See https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w, accessed March 22, 2020. 5 Id.

Case: 1:20-cv-02093 Document #: 9-1 Filed: 04/02/20 Page 4 of 6 PageID #:262
reported as of March 26, 2020.6 The cases of COVID-19 have spanned the State, including in central and southern Illinois. As a result, Illinois Governor J.B. Pritzker has issued an order to “stay at home” for the entire State.7
13. COVID-19 has now reached the correctional facilities in Illinois, with cases reported in the Illinois Department of Corrections and the Cook County Jail. 8 In New York, we have seen the rate of infection in city jails far outpace the rate of infection of the general population, by seven.9 The same can be expected in Illinois facilities.
14. The conditions of congregate settings, such as prisons, poses a heightened public health risk for the spread of COVID-19.
15. Correctional facilities are enclosed environments, much like the cruise ships and nursing homes that were the sites of the largest concentrated outbreaks of COVID-19 initially. Correctional facilities have even greater risk of transmission of infection because of a) crowding for prolonged periods of time; b) the high proportion of vulnerable people detained; and c) often scant medical care resources.
16. In prisons, people live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. In most congregate settings, it is impossible for those detained to maintain a six-foot distance from others or to avoid groups.
17. Food preparation and food service is communal, with little opportunity for surface disinfection. Toilets, sinks, and showers are shared, without disinfection between use.
18. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
19. Many correctional facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. Even where they do have formal linkages with local health departments or hospitals, correctional facilities are often in under-resourced areas where the local health department or hospital would quickly become overwhelmed in the face of an infectious disease outbreak.
20. Prisons are ill-equipped to diagnose and manage the spread of a disease like COVID-19. In the event of exposure in a prison, all individuals should be tested. Those who test positive should be isolated. Health care providers should have access to personal
6 See http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus, accessed March 27, 2020. 7 https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-shelter-in-place-lockdown-order-20200320teedakbfw5gvdgmnaxlel54hau-story.html 8 See https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx, accessed March 26, 2020; https://chicago.suntimes.com/coronavirus/2020/3/25/21193871/cook-county-jail-coronavirus-covid-19-cases, March 25, 2020. 9 https://www.nydailynews.com/coronavirus/ny-coronavirus-nyc-jails-rikers-island-legal-aid-20200325o5du2jczc5agrhj42y5tk4gfmi-story.html (March 25, 2020).

Case: 1:20-cv-02093 Document #: 9-1 Filed: 04/02/20 Page 5 of 6 PageID #:263
protective equipment, including masks. Access to resources for testing, personal protective equipment, and necessary supplies are often inadequate in prisons. Those infected and symptomatic should be isolated in airborne negative pressure rooms, which rarely exist in prisons. Where such negative pressure rooms do exist, there are rarely enough to be available in the event of an outbreak.
21. There is a nationwide shortage of tests for COVID-19. It is my understanding that Illinois correctional facilities do not have sufficient access to these tests. As people may be asymptomatic or have no fever, COVID-19 may be spread in prisons and infect many prisoners and staff without warning.
22. The heightened risk of infectious disease transmission in prisons threatens the health of prisoners, staff and the broader population. Releasing vulnerable patients reduces the risk of widespread intramural outbreak, and thereby reduces the risk to staff who return to their homes on a daily basis.
23. Indeed, I monitor a correctional facility for the Federal Court that has already had an outbreak of COVID-19 among vulnerable people living on a medical housing unit. A Nurse Practitioner, four correctional officers, and two inmates have confirmed COVID-19. Several other inmates have pending tests. Three nurses are hospitalized with COVID-19. As such, I have firsthand knowledge of the serious effects of this virus in correctional facilities and the lack of preparedness in these institutions. Correctional facilities are not equipped to manage and treat an onslaught of this disease. It is a dangerous and rapidly evolving situation.
24. Risk mitigation is the only viable public health strategy available to limit transmission of infection, morbidity and mortality in prisons, and to decrease the likely public health impact outside of the prisons. Even with the best-laid plans to address the spread of COVID-19 in prisons, the release of individuals, prioritizing the most medically vulnerable individuals, is a key part of a risk mitigation strategy. In my opinion, the most urgent public health need is to release people from prison, prioritizing those who are most vulnerable, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.
25. Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility.
26. Combined, this has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, disinfecting supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff, which will likely be reduced by illness, such that they can continue to ensure the safety of detainees.
27. The prison is a microcosm of the broader community. Social distancing and scrupulous hygiene and sanitation are required to avoid an outbreak. If there is inadequate social

Case: 1:20-cv-02093 Document #: 9-1 Filed: 04/02/20 Page 6 of 6 PageID #:264
distancing, hygiene and sanitation, there will almost certainly be infection and an outbreak. In the event of an outbreak, those who are medically vulnerable will be most immediately at risk, but eventually the effect will be felt by all as the health care infrastructure will be inadequate to respond to the needs. 28. For an airborne disease, the most effective mitigation strategy to limit the spread of the virus is to reduce crowding, as this increases the opportunity for social distancing. In a prison, even if everyone is isolated in a single cell, there is still an increased risk of transmission among prisoners and staff because the institutional setting requires the delivery of food, cleaning supplies, documents, and other items. 29. Isolation, e.g., segregation or solitary confinement, is not an acceptable mitigation strategy. People who are isolated are monitored less frequently, due to decreased visualization. If they develop COVID-19 symptoms, or their symptoms escalate, they may not be able to get the medical attention they desperately need in a timely fashion. It also makes it more likely that there will be increases in suicide attempts or self-harm, giving rise to more medical problems in the midst of a pandemic. Isolation also increases the amount of physical contact between staff and prisoners—in the form of increased handcuffing, escorting to and from the showers, and increased use of force due to the increased psychological stress of isolation. My expert opinion is that the use of isolation or lockdown is not a medically appropriate method for abating the substantial risks of COVID-19. Under penalties as provided by law pursuant to § 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Executed this 27th day in March 2020 in New York City, New York.
Robert B. Greifinger, M.D.

Case: 1:20-cv-02093 Document #: 9-2 Filed: 04/02/20 Page 1 of 9 PageID #:265
EXHIBIT 2

Case: 1:20-cv-02093 Document #: 9-2 Filed: 04/02/20 Page 2 of 9 PageID #:266
Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
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7. The risk posed by infectious diseases 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. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors 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. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
2

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access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large 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. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. 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. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. 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.2 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 H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 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.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 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. 3 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-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. 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, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
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place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. 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.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may 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.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
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31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
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COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

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

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

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EXHIBIT 3

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EXHIBIT 4

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Declaration for Persons in Detention and Detention Staff COVID-19
Chris Beyrer, MD, MPH Professor of Epidemiology Johns Hopkins Bloomberg School of Public Health Baltimore, MD
I, Chris Beyrer, declare as follows:
1. I am a professor of Epidemiology, International Health, and Medicine at the Johns Hopkins Bloomberg School of Public Health, where I regularly teach courses in the epidemiology of infectious diseases. This coming semester, I am teaching a course on emerging infections. I am a member of the National Academy of Medicine, a former President of the International AIDS Society, and a past winner of the Lowell E. Bellin Award for Excellence in Preventive Medicine and Community Health. I have been active in infectious diseases Epidemiology since completing my training in Preventive Medicine and Public Health at Johns Hopkins in 1992.
2. I am currently actively at work on the COVID-19 pandemic in the United States. Among other activities I am the Director of the Center for Public Health and Human Rights at Johns Hopkins, which is active in disease prevention and health promotion among vulnerable populations, including prisoners and detainees, in the US, Africa, Asia, and Latin America.
The nature of COVID-19
3. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease, is a global pandemic and has been termed a global health emergency by the WHO. Cases first began appearing sometime between December 1, 2019 and December 31, 2019 in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City.
4. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus which caused the 2002-2003 SARS epidemic.
5. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.3 to 3.5%, which is 5-35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are selflimited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
6. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate is higher in men, and varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardio-vascular disease, respiratory disease, diabetes, and immune compromise.
7. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS) which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical

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ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.
8. COVID-19 is widespread. Since it first appeared in Hubei Province, China, in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents, heavily affected countries include Italy, Spain, Iran, South Korea, and the US, now the world’s most affected country. As of today, March 29th, 2020, there have been 713,171 confirmed human cases globally, 33,597 known deaths, and some 149,000 persons have recovered from the infection. The pandemic has been termed a global health emergency by the WHO. It is not contained and cases are growing exponentially.
9. SARS-nCoV-2 is now known to be fully adapted to human to human spread. This is almost certainly a new human infection, which also means that there is no pre-existing or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
10. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again, is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20-30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2-14 days, which is why isolation is generally limited to 14 days.
The risks of COVID-19 in detention facilities
11. COVID-19 poses a serious risk to inmates and workers in detention facilities. Detention Facilities, including jails, prisons, and other closed settings, have long been known to be associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.
12. The severe epidemic of Tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of Tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities from which inmates derive.
13. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as 6-foot distancing and proper decontamination of surfaces is virtually impossible. For example, several deaths were reported in the US in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May, 2019.
14. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as overcrowding, population density in close confinement, insufficient ventilation, shared toilet, shower, and eating environments and limits on hygiene and personal protective equipment such as masks and gloves in some facilities. Limits on soap (copays are common) and hand sanitizer, since it can contain alcohol, are also risks for spread.
15. Additionally, the high rate of turnover and population mixing of staff and detainees increases likelihoods of exposure. This has led to prison outbreaks of COVID-19 in

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multiple detention facilities in China, associated with introduction into facilities by staff. The current outbreak in the detention facility of Riker’s Island in New York City is a example—and in the first days of that outbreak the majority of cases were among prison staff, not inmates. 16. In addition to the nature of the prison environment, prison and jail populations are also at additional risk, due to high rates of chronic health conditions, substance use, mental health issues, and, particularly in prisons, aging and chronically ill populations who may be vulnerable to more severe illnesses after infection, and to death from COVID-19 disease. 17. While every effort should be made to reduce exposure in detention facilities, this may be extremely difficult to achieve and sustain. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible. 18. Pre-trial detention should be considered only in genuine cases of security concerns. Persons held for non-payment of fees and fines, or because of insufficient funds to pay bail, should be prioritized for release. Immigrants awaiting decisions on their removal cases who are not a flight risk can be monitored in the community and should be released from immigration detention centers. Older inmates and those with chronic conditions predisposing to severe COVID-19 disease (heart disease, lung disease, diabetes, immune-compromise) should be considered for release. 19. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are highly likely. Releasing as many inmates as possible is important to protect the health of inmates, the health of correctional facility staff, the health of health care workers at jails and other detention facilities, and the health of the community as a whole. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 16th day of March, 2020.
_____________________ Professor Chris Beyrer

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References
Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016.
Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85.
Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447.
Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344.
Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)306638. doi: 10.1016/S0140-6736(16)30663-8
Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151

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EXHIBIT 5

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I, Dan Pacholke, declare as follows: 1. I am over the age of 18, have personal knowledge of the facts set forth herein, and, if called as a witness, I could and would testify competently as set forth below. 2. I have more than 37 years of experience, training, and education in the field of adult institutional corrections. This experience includes over three decades as an employee of the Washington State Department of Corrections (WDOC), beginning as a correctional officer and retiring as Secretary. In that time, I served as Chief of Emergency Operations; Superintendent of three correctional facilities (Cedar Creek Corrections Center, Stafford Creek Corrections Center, and Monroe Correctional Complex); Deputy Director; Director of Prisons; and Deputy Secretary. In October 2015, Governor Inslee appointed me to serve as Secretary of Corrections, a position I held until March 2016. As a WDOC employee in administration and leadership positions, I was one of the individuals responsible for the development and implementation of correctional policies, practices, and procedures. 3. My experience also includes work as a consultant for the National Institute of Corrections, a federal agency with a legislative mandate to provide specialized services to corrections from a national perspective, and as a Senior Research Scholar with New York University Marron Institute of Urban Management. Currently, I am a principal at Dan Pacholke Consulting, LLC and frequently consult with and collaborate with correctional systems, researchers, and policymakers on strategies to create safer correctional institutions. Attached as Exhibit 1 is a copy of my curriculum vitae. 4. In my capacity as a correctional practices consultant in 2016--17 I visited and toured several prisons operated by the Illinois Department of Corrections (IDOC) including Pinckneyville, Stateville, Hill, East Moline and Pontiac.
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5. As a result of my many years of experience in corrections, I have extensive knowledge of correctional policies and practices relating to the operation of prisons, including the standards regarding when and how individuals are released from custody, and, how and when corrections can exercise its discretion to take immediate affirmative actions to address issues impacting the health and safety of people in custody into account.
6. In my opinion, COVID-19 represents a serious and unprecedented risk to the health and safety of people in IDOC custody and IDOC staff. This risk makes it imperative that IDOC immediately take steps to proactively respond to the virus to protect those individuals. Among those steps is considering how IDOC can exercise its authority and discretion (along with any other body which has the authority or discretion to order release, such as the Prisoner Review Board, using its power to grant parole or to decline to revoke parole, and the Governor, using his power of Executive Clemency) to reduce the prison population. This includes awarding good time credits, transferring people to home detention, and authorizing medical furloughs. All of these and any other options should be fully utilized to allow individuals to maintain social distancing and have better access to testing and treatment. This will also help mitigate the impact of staff shortages and lessens the burden on prison medical services. Reducing the population will improve the health and safety of people in custody who are currently symptomatic and/or test positive as well as individuals who have been exposed to COVID-19 but are not yet showing symptoms and have not yet been tested. As in the community outside IDOC facilities, the numbers of individuals in both categories will increase exponentially.
7. Shortly after I was appointed Secretary of WDOC, I was faced with a crisis that, though different from the current COVID-19 emergency, was similar in that it required immediate and decisive action. In December of 2015, it was brought to my attention that WDOC
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had, for thirteen years, miscalculated certain sentences, resulting in approximately 3,600 inmates being released from prison an average of approximately 60 days early. We employed a number of strategies to resolve this error, one of which was the use of the furlough statute. This was used when it was determined that an offender released early had: (1) performed and continued to perform appropriately on community supervision; (2) had an appropriate residence; and (3) had not absconded while on supervision or committed additional felony offenses. If these conditions were met, I authorized a furlough for 30 days, completed a follow-up check-in, and subsequently extended the furlough for an additional 30 days. This helped the impacted individuals maintain their job, living arrangement, and family responsibilities. Illinois appears to have a similar mechanism allowing various classes of prisoners to be transferred to home confinement.
8. If faced with the current Covid-19 crisis, I believe that immediate action is needed to reduce the prison population for the benefit of inmates and staff. I would determine who, including those still housed in prisons, and those on work release, is within the categories that the IDOC or other body has the legal authority to release or transfer, and establish objective criteria, such as having an appropriate release address, to establish who could safely be released or transferred to a non-prison setting, even though many might still remain in IDOC custody. The criteria adopted should be designed to greatly increase the number of releases, to significantly reduce the prison population.
9. The timely implementation of measures to reduce the prison population will decrease the density and slow the spread of this virus in our state prisons and work releases. It will allow IDOC the space it needs to accomplish more effective social distancing, allow more effective quarantining of impacted individuals, and greatly reduce the burden on medical staff and local hospitals. In many cases, this will return those individuals who would otherwise be
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Case: 1:20-cv-02093 Document #: 9-5 Filed: 04/02/20 Page 5 of 11 PageID #:290 released within the next year to their homes now, where they can more effectively self-isolate with their families, provide child and elder care, and receive testing and treatment as needed.
10. The staff and the people who live in prisons and work releases are placed at greater risk for the spread of diseases. It is imperative that IDOC do everything in its power to “flatten the curve” in these facilities during this crisis to protect the health and safety of its staff and the people in its custody. The best way to do this is to quickly implement strategies to reduce the population, in a way that supports public health and safety, to reduce the spread of this virus and maintain increasingly limited staff and medical resources.
I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
Dan Pacholke April 1, 2020
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Attachment 1
DAN PACHOLKE
PROFILE
Served the Washington State Department of Corrections for 33 years, starting as a Correctional Officer and retiring as Secretary. Leader in segregation reform and violence reduction in prisons. Extensive experience in program development and implementation, facility management, and marshaling and allocating resources. Proven ability to make change. Led efforts resulting in a 30% reduction in violence and a 52% reduction in use of segregation in Washington State Prisons. Co-founder of Sustainability in Prisons Project. Champion of humanity, hope and legitimacy in corrections.
EMPLOYMENT HISTORY
Principal, Dan Pacholke Consulting, LLC. 2018 to Present Offering a full range of consulting services in the field of corrections.
New York University, Litmus at Marron Institute of Urban Management Associate Director 2016-2017
Collaborate with researchers and practitioners to develop alternatives to segregation and transform corrections management. Advance stakeholder-led research and innovation by soliciting, supporting, and disseminating the best new strategies to create safer, more rehabilitative corrections environments.
Washington State Department of Corrections Secretary 2015-2016
Governor appointee providing executive oversight of the agency with a yearly operating budget of 850 million and 8,200 full time employees. Reorganized agency to allow for greater emphasis on effective reentry. Led department through response and recovery from a crisis resulting from the discovery of a sentencing calculation error that had occurred for over 13 years.
Deputy Secretary 2014-2015 Oversight over operations divisions: Offender Change; Correctional Industries; Community Corrections (16 Work Releases and 150 field offices); Prisons (15 facilities); and Health Services. These combined operations had a yearly operating budget of 700 million and 7,166 full time employees. Emphasis on core correctional operations, violence reduction, and performance management leadership to affect positive and sustainable system wide change.
Director, Prisons Division 2011-2014 Oversight over 15 institutions and contract relationships with jails and out of state institutions incarcerating approximately 18,000 offenders. Also responsible for providing emergency response and readiness oversight to all facilities and field offices of all divisions. Advanced multi-faceted violence reduction strategy to include the development and implementation of the “Operation Ceasefire” group violence reduction strategy for application in close custody units in prisons. Expanded Sustainability in Prisons Project programs to all prison facilities. Implemented classroom-setting congregant programming in intensive management units.
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Attachment 1
Deputy Director, Prisons Division 2008-2011 Administrator over 6 major facility prisons, multi-custody level for adult male offenders with a biennial budget of 290 million. Provided leadership and appointing authority decision making to six facility Superintendents. Through Great Recession implemented staffing reductions, offender movement alterations and cost savings initiatives while maintaining safety and security. Represented the Department in legal issues, labor relations, media, staff discipline hearings, union relations and bargaining. Oversaw statewide operations of Emergency Preparedness and Response, Intelligence & Investigations, Intensive Management Units, Offender Grievance Program, Offender Disciplinary Program, Food Service, Sustainability and Close Custody Operations. Implemented statewide system of security advisory councils and security forums to improve staff safety.
Monroe Correctional Complex Interim Superintendent 2008
Led a 2,486-bed, multi-custody facility for adult male offenders.
Stafford Creek Corrections Center Superintendent 2007-2008
Led a 2,000-bed, multi-custody facility for adult male offenders with a biennial budget of 39 million. Implemented Sustainability in Prisons Project initiatives to include large scale composting to include zero-waste garbage sorting. Initiated first dog training programs for male offenders.
Cedar Creek Corrections Center Superintendent 2003-2007
Led a 400-bed, minimum-security adult male correctional facility, with a biennial budget of 7.3 million. Directed operational and related program activities to include security and custody programs, medical services, plant maintenance, education, and food service. Co-founded the Sustainability in Prisons Project with Nalini Nadkarni, PhD.
Monroe Correctional Complex Special Assignment Deputy Superintendent 2002
Formulated new strategic direction in order to enhance operations and security at the Complex, which consists of four separate units and houses approximately 2,300 adult male felons. Managed unit operations and security. Supervised the Intelligence Investigative Unit and Offender Grievance System. Developed and implemented capital construction initiatives at the Special Offender Unit and the Washington Reformatory Unit to enhance security of these Units.
Headquarters Performance System Administrator 1999-2002
Led the development and implementation shift from staff training department to an organizational performance system. Administered staff performance academies, supervised five regional teams, four Program Managers and provided leadership for policy development to support this department wide program. Administered the Department’s Emergency Response Plan, Emergency Operations, Officer Safety Program and Firearms Training Unit.
Headquarters Emergency Response Manager 1995-1999
Developed and implemented statewide emergency response system. Directed the
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Attachment 1
development of departmental policy, emergency response team academies and response protocols. Managed emergencies and security events. Directed Critical Incident Review Teams in the post incident analysis of critical incidents department wide. Led development of security plans for the management of high-risk operations to include 400 offenders out of state, Y2K, and execution security.
Clallam Bay Corrections Center Correctional Captain 1989-1995
Responsible for the security management of a maximum, close, and medium custody male facility. Oversaw facility mission changes including: close custody conversion; implementation of blind feeding; facility double bunking; opening of an intensive management unit; opening of first direct supervision unit; and developed the facility’s Emergency Response Plan.
Clallam Bay Corrections Center Correctional Lieutenant 1986 -1989
Washington Corrections Center Correctional Sergeant 1985-1986
McNeil Island Corrections Center Correctional Officer 1982-1985
PUBLICATIONS Useem, Bert, Dan Pacholke, and Sandy Felkey Mullins. "Case Study–The Making of an Institutional Crisis: The Mass Release of Inmates by a Correctional Agency." Journal of Contingencies and Crisis Management (2016) Pacholke, Dan (2016, July 27). Change is relative to where you begin. Vera Institute of Justice. Think Justice Blog. https://www.vera.org/blog/addressing-the-overuse-of-segregation-in-u-sprisons-and-jails/change-is-relative-to-where-you-begin
Pacholke, Dan and Sandy Felkey Mullins. More Than Emptying Beds: A Systems Approach to Segregation Reform. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, 2016. NCJ 249858.
Pacholke, D. (2014, March). Dan Pacholke: How prisons can help inmates lead meaningful lives [Video file]. Retrieved from https://www.ted.com/talks/dan_pacholke_how_prisons_can_help_inmates_live_meaningful_lives?la nguage=en
Young, C., Dan Pacholke, Devon Schrum, and Philip Young. Keeping Prisons Safe: Transforming the Corrections Workplace. 2014.
Aubrey, D., LeRoy, C. J., Nadkarni, N., Pacholke, D. J., & Bush, K. Rearing endangered butterflies in prison: Incarcerated women as collaborating conservation partners. 2012.
AWARDS
Olympia Rotary Club, Environmental Protection Award, 2013 Governor’s Distinguished Managers Award, 2012 Secretary of State, Extra Mile Award, 2007
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Attachment 1
Governor’s Sustaining Leadership Award, 2003 CONSULTING Sustainability in Prisons Project, Co-Director 2004-2015 Nebraska Department of Correctional Services 2015
With Bert Useem, PhD, provided system assessment following May 2015 disturbance at Tecumseh State Correctional Institution in which two inmates were killed. Identified underlying causal factors and provided recommendations. National Institute of Corrections 1998 to 2002 Provided training and consultation services to state, territory and federal correctional systems. Responsible for delivering of training to include: Management of Security, Entry Level Supervision, Emergency Preparedness Assessment, Disturbance Management and Basic Security. Defensive Technology Corporation Senior Instructor 1995 to 1998 Provided tactical and specialty munitions training to correctional and law enforcement personnel throughout the U.S. Security Auditing & Critical Incident Reviews Lead Auditor Completed security audits and critical incident fact finding reviews in facilities throughout the Washington State Department of Corrections and two correctional jurisdictions in other states, one of which involved multi-jurisdictional entities.
EDUCATION: The Evergreen State College, BA, Olympia, Washington
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Attachment 3
Career Highlights
• Reduced violence in Washington State prison system by over 30% while also reducing the number of people held in long-term administrative segregation by over 50%.
• Designed and implemented congregate group programming in the intensive management units (IMU’s). The programs offered included evidence based programs and other complimentary offerings. Today all IMU’s in Washington State prisons offer congregate programming.
• Designed and implemented the first prison Ceasefire model. This deterrencebased model reduced serious violent incidents (assault against staff, use of a weapon and multi on single man fights) by 50% and continues to be utilized in Washington State close custody (Level IV) prison to reduce serious violence.
• Co-authored a protocol for in-custody Swift, Certain and Fair sanctioning. This deterrence-based model offers a strategy for the reduction of low-level in-custody violations.
• Implemented the Correctional Officer Pre-Service training model at Clallam Bay Corrections Center. This 10-week program offered half-time course work and half-time OJT in order to certify newly hired correctional officers. This program was implemented state wide as the CORE Program, a six-week standardized training required of all staff that work in prisons.
• Served as a lead design team member on the creation and implementation of the Correctional Officer Achievement Program (COACH), a yearlong, on-the-job training program accredited by the WA State Board for Technical and Community Colleges.
• Led the design and development of a comprehensive agency-wide Emergency Response Plan and complimentary learning academies: Emergency Response Instructor (40 hrs.); Emergency Response Team (40 hrs.); Special Emergency Response Team (40 hrs.); Crisis Negotiator (40 hrs.); Joint Operations (24 hrs.); and the Designated Incident Management Team (multiple ICS certifications).
• Co-Authored, Keeping Prisons Safe, Transforming the Corrections Workplace and accompanying field guide which are used in CORE and Annual In-Service Training at WA DOC.
• Co-founder and past co-director of the Sustainability In Prisons Project; this program brings nature into prison and features science education. It is recognized internationally and features programs to restore endangered species e.g., Oregon Spotted Frog, Taylor Checker spot Butterfly, Indigenous Box Turtles and over fifty different rare and endangered native prairie plants. http://sustainabilityinprisons.org.
• Offered two TEDx events in prison. These events featured inmates, staff and volunteers as TEDx speakers.

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Attachment 3
• Implemented Dog retraining programs in all Washington State Prisons.

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EXHIBIT 6

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March 17, 2020 The Honorable J. B. Pritzker 207 State House Springfield, IL 62706 Re: Coronavirus in Illinois Prisons Dear Governor Pritzker:
The COVID-19 pandemic represents an unprecedented threat to men and women who are incarcerated in IDOC custody. These individuals are held in close quarters— several feet closer than the six-foot distance that you and the CDC have recommended for individuals not held in custody. They are simply not able to engage in the “social distancing” that public health officials have stressed is mandatory to combat the rate of illness. As a result, if any one of these individuals becomes infected with COVID-19, nearly everyone within the prison will face a dangerously high risk of becoming infected.
If and when (as is likely, given reports from countries like Italy who are experiencing our rate of infection just weeks ahead of the United States) IDOC prisons experience an outbreak, the prison’s health system will be overwhelmed. That, in turn, is likely to overwhelm local outside hospital systems where sick prisoners are referred, which will render them unable to provide lifesaving treatment to the population—both incarcerated and free—that need it.
We are thankful that at this point IDOC does not have any positive cases. To avoid contamination, in addition to the steps already announced by IDOC, it is imperative that you take action to ensure that every individual in IDOC custody today who can be released in a way that is consistent with public safety, is released.
This administration has taken the lead across the country in ensuring that the threat faced by the COVID-19 pandemic is taken seriously. In keeping with this administration’s initiative, we implore you to take the following immediate steps to protect the vulnerable individuals in IDOC custody, as well as the individuals who work there:

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1. Immediately order the release of individuals whose release dates are within 120 days. These individuals have already worked with prison staff and those outside to confirm that they will be returning to a confirmed home site, and have release plans.
2. Release all individuals in custody awaiting parole revocation hearings. People previously on supervised release who are in IDOC custody because of non-violent parole violations and new charges that are bail eligible, and especially people in custody because of technical violations, should be released immediately.
3. Prioritize release for any individuals whose release plans are pending host site approval. These individuals have a place to return, but are simply waiting for IDOC to approve. These people should be prioritized, and once approved, immediately released.
4. Order IDOC to stop taking people into custody for parole violations unless they present a clear and present danger of imminent physical harm, and rescind all parole warrants. As we know from the information set out by your administration and the CDC, introducing new people into the prison population will only exacerbate the likelihood of an outbreak within the prison. IDOC should immediately stop taking any individuals into custody for parole or MSR violations unless their actions present a clear and present danger of imminent physical harm, and should withdraw all parole-related warrants.
5. Release individuals with viable clemency petitions. Several individuals have viable clemency petitions that are awaiting decision by this administration; anyone whose petitions are viable should be released immediately.
6. Take all actions necessary to maximize good time credits. Under Illinois law, 730 ILCS 5/3-6-3, the IDOC Director “may award up to 180 days of earned sentence credit for good conduct in specific instances as the Director deems proper.” This provision should be used proactively to reduce the population in IDOC facilities.
7. Evaluate individuals who are pregnant, postpartum, or living with their infants in IDOC programs. Pregnant and postpartum women, as well as the babies in the Moms and Babies nursery, are particularly vulnerable to illness. People who are pregnant often have suppressed immune systems and can also have decreased lung capacity, complicating respiratory illnesses. High fevers can also lead to birth defects and miscarriage. The majority of pregnant people and participants in the Moms and Babies program have release dates within the next twelve months. Their release should be prioritized through all available means.
8. Evaluate individuals with HCU living assignments and chronic care needs for consideration of early release. These are vulnerable populations who require significant staff time and resources. If these individuals have sentences that allow

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for consideration of any form of early release, and home placement options, steps should be taken to get them released as soon as possible.
9. Take steps to limit intake into IDOC facilities. As we are quickly learning from public health experts, the safest way to protect against outbreaks of COVID19 is to limit the number of social interactions. We urge you to take action to decrease the number of individuals being taken into IDOC custody, including by placing any limits allowable on receiving, by asking courts and prosecutors to adjust sentencing priorities to avoid incarceration to the fullest extent possible.
10. Ensure that the IDOC has the resources necessary to combat a possible COVID-19 outbreak in one or more IDOC facilities. It is imperative that IDOC have the resources that it needs to provide supplies to both prisoners and staff. This must include unfettered access to soap and cleaning supplies for prisoners, and thermometers and protective gear for staff.
These actions are a necessary first step to minimize the likelihood of an outbreak in IDOC facilities, and to contain the virus within the state. Many of the individuals in IDOC custody are among the most vulnerable for catastrophe should an outbreak occur. We hope that you will approach their health as seriously as you have approached the health of the rest of the state.
The organizations below would welcome an opportunity to speak with you or members of your administration about how to effectively respond to this public health emergency and protect the health and safety of individuals and IDOC custody and the Illinois community.
Signed,
ACLU of Illinois Chicago Community Bond Fund Chicago Urban League Children and Family Justice Center, Bluhm Legal Clinic,
Northwestern Pritzker School of Law Community Justice and Civil Rights Clinic, Bluhm Legal Clinic,
Northwestern Pritzker School of Law Equip for Equality John Howard Association Legal Council for Health Justice Loevy & Loevy Roderick and Solange MacArthur Justice Center Shriver Center on Poverty Law Uptown People’s Law Center Women's Justice Institute

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cc: Lt. Governor Juliana Stratton Director Rob Jeffreys Chief of Staff Camile Lindsay Gary Caplan, Office of the Governor Christian Mitchell, Deputy Governor for Public Safety, Infrastructure, Energy & Environment

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EXHIBIT 7

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PURPOSE:
The State of Illinois must act with increased urgency to release individuals from incarceration who are at significant risk of harm from COVID-19, as well as those who require substantial medical and staff resources that should be preserved for the COVID-19 response.
The purpose of this document is to assist in identifying prisoners who are medically vulnerable, elderly, or resource-intensive (in terms of medical equipment, space and staff time) due to disability or medical condition. We also set forth steps that the Governor’s Office and the IDOC must take to release or, where release is unavailable, to transfer individuals to other settings better able to care for their needs to the furthest extent possible.
I. Facility Identification of the High-Risk/Resource-Intensive Population
If IDOC has not done so already, IDOC must identify all prisoners (a) who are medically vulnerable with regard to COVID-19, (b) who are elderly, and (c) who require medical resources and staff time that should be devoted to COVID-19. As we understand it, IDOC may have already created a list that meets some of or all of these criteria. If this has not been done in any part, or if the current list was not prepared with facility-level medical input, IDOC should direct each facility, through its Medical Directors (MDs) and Health Care Unit Administrators (HCUAs), to create a list, or supplement its existing list, to include the following:
- People over age 55.
- People housed in Health Care Units (HCUs) who could reside at home with supports or services. While many of IDOC’s sickest residents are housed in prison HCUs, not everyone who resides in a HCU would need inpatient care in the community. (We understand there is reluctance to release those who would need to be discharged to a community hospital.) For example, some people reside in HCUs because they need certain equipment (such as oxygen tanks) that could be dangerous inside the general prison population. People with paralysis are frequently housed in HCUs because they need assistance with activities of daily living. Others reside in HCUs

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because they frequently see outside medical specialists for treatment of chronic conditions. Still others are receiving palliative or hospice care.
- People who are immunocompromised.
- People who are seen at chronic clinics.
- People who are pregnant, nursing, or in “moms and babies” programs. It should be easy for administrators at Logan or Decatur to determine who falls into this category.
Due to the urgency of this situation, the Governor should give IDOC facilities a strict deadline by which to identify these individuals, such as 24 hours.
II. Release High- Risk and Resource-Intensive Prisoners
All the individuals on this list are people who are either at risk of severe harm from COVID-19 and/or require regular medical resources that should be preserved to prepare for an outbreak within the system.
IDOC should utilize its authority and discretion, under existing law, to release as many individuals as possible. Maintaining custody of people in these categories presents a significant threat to public safety and health because of the devastating impact that an outbreak will have inside the prison, as well as on staff, local hospitals, and surrounding communities. Releases should be completed as quickly as possible. If COVID-19 becomes widespread in the prisons before vulnerable people are released, the influx of incarcerated people who become sick into community-based hospitals will without any doubt overwhelm their capacity, and cause avoidable deaths.
The Governor’s Office needs to act decisively to insure that IDOC is fully exercising its authority to release as many people as possible from custody to the furthest extent possible, including by ordering IDOC to immediately:
● Issue administrative directives allowing for the transfer to home detention and/or electronic monitoring all individuals identified pursuant to Section I above who qualify under 730 ILCS 5/5-8A-3(d) and (e).
● Release to home detention and electronic monitoring all individuals within its authority to do so, including all people serving sentences for Class 2-4

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felonies pursuant to 730 ILCS 5/5-8A-3(e), and all eligible people over the age of 55 who have less than 12 months left to serve on their sentence pursuant to 730 ILCS 5/5-8A-3(d). This reduction is necessary to allow for social distancing and to preserve IDOC’s resources and medical staff for COVID-19 preparedness.
● In coordination with PRB, expeditiously return all IDOC-requested good time credit pursuant to 20 Ill. Adm. Code 107.160. IDOC should direct counselors at each institution to submit requests for good time restoration for all offenses other than for violations under Offense 102a.
● Award discretionary good time credit pursuant to 20 Ill. Adm. Code 107.210 to the furthest extent possible to all eligible individuals to facilitate immediate and continuing releases.
● Immediately lift all outstanding parole holds for people who are in custody (in both IDOC and local jails) awaiting preliminary and final revocation hearings. Communicate the release of parole holds to local Sheriffs, Public Defenders, States Attorneys and Judges.
Due to the state of emergency and significant threat to public safety, the Governor’s Office must also expand the number of people eligible for release, including by:
● Immediately act to expand eligibility for release to home detention to all individuals identified pursuant to Section I above.
● Increase staffing of parole and field services, to the extent necessary, to facilitate IDOC’s preparedness for a COVID-19 outbreak. Work in collaboration with social workers and other staff from nonprofit organizations to identify appropriate placements for people eligible for release, to expedite the pace of release.
● Direct State’s Attorneys, Courts, and County Sheriffs to take immediate steps to release anyone who is either identified as elderly or medically vulnerable. ○ To expedite the timely release of medically vulnerable people, State’s Attorneys should agree to resentence anyone identified by IDOC as medically vulnerable to time served.

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○ Courts should act quickly on joint motions to release defendants who are being held pretrial, on motions to resentence defendants who are serving incarcerative sentences. Courts should grant motions on the paper submissions whenever possible, and should schedule any hearings expeditiously and telephonically. Courts should waive the presence of the defendant whenever possible.
○ Sheriffs should use their discretion broadly to reduce pre-trial detention to the furthest extent possible. Sheriffs should coordinate with other entities to reduce detention in all manners possible, including by communicating with IDOC to release parole warrant holds. Sheriffs should decline to arrest or cite low-level and misdemeanor conduct ,and should use cite-and-release authority whenever possible.
● The Governor’s Office should use its broad clemency powers to initiate the commutation of sentences to time served for all people in the target categories listed in Section I who are not otherwise eligible for release pursuant to existing statutes and who (i) in addition to being identified in the categories laid out in Section I, have release dates within the next five years, and/or (ii) due to being over the age of 70 and/or due to severe medical condition (such as cancer), are in the highest category of risk of death as a result of COVID-19 infection, regardless of release date.
● The Governor’s Office should direct the PRB to restore good time credit revocations to the furthest extent possible.
● The Governor’s Office should conduct an expedited review of all pending commutation petitions, regardless of whether a hearing by the PRB has been scheduled or completed. This review should begin with any medical emergency commutation petitions that have been filed and then any petitions filed by individuals over the age of 55. Many clemency petitions include a reentry plan that can be immediately enacted.
● The Governor’s Office should direct IDOC to immediately release all people who are awaiting parole revocation hearings on technical violations.
● The Governor’s Office should direct IDOC to stop taking people into custody on technical parole violations. These people do not need to be in IDOC custody. With each new person processed into reception facilities, the risk of

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COVID-19 outbreak grows. Additionally, the medical clearance process diversts valuable medical resources away from COVID-19 management.
● The Governor’s Office should direct the PRB to convene telephonically to immediately review every C-number prisoner still in custody for immediate parole. These individuals, by definition, are all over the age of 60 (the majority are in their 70s), and therefore at extremely high risk of serious illness and death from COVID-19.
● The Governor’s Office should take steps to expand 730 ILCS 5/3-6-3 to allow IDOC to award up to 360 days (from 180) of earned sentence credit for good conduct in specific instances as the Director deems proper.
III. Prioritize Resources to Facilitate Safe Releases Immediately
Steps must be taken to facilitate the immediate release of these individuals in the safest manner possible, including the following steps:
Expansion of Field Services: Field services should immediately execute release/transfer planning for all people identified pursuant to Sect. I above to determine all viable placement options. To the extent needed, Field Services could utilize other clinical staff resources to assist in identifying home placement options. Facilities should be directed to make this effort a priority. Facilities should also be given the discretion to identify other individuals in their custody who staff believe should be candidates for release.
Evaluate public host site requirements and remove barriers to host site approval that are not related to public safety. The requirements should be reviewed and any that are not essential to ensure re-entry should be abandoned. For example, host sites are often denied for lack of a landline phone despite the availability of other forms of communication. Another example is that some host sites have been denied because they are located in “high crime” neighborhoods. Given the statewide order to shelter in place, this should not be a barrier to placement at this time. Additionally, the Governor’s Office should assist in expanding housing options connecting with community partners, universities, and grant providers for social services to explore new housing options.
Provision of State-Issued Identification: The Governor’s Office should take immediate action to facilitate an interagency agreement or memorandum of

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understanding between the IDOC and the Secretary of State’s Office to immediately provide state identification to individuals who are, or are about to be, released. Many of these individuals will need identification in order to provide for themselves, including to obtain prescribed medications, but state offices that issue IDs are currently closed. This could be done in a number of ways, including by IDOC providing the photos and personal information needed directly to the Secretary of State to reduce the amount of in-person involvement needed by the individual.
Medicaid Expansion of Eligibility, Benefits and Enrollment: The state has flexibility to adapt its Medicaid programs to address COVID-19 and should take steps to expand eligibility and benefits and to make enrollment easier. The state may do this (without federal involvement) through state plan amendments (SPAs) or changes in policies and processes.
The Governor should bridge the necessary state agencies and IDOC to prioritize and require changes in the Medicaid program to specifically expedite the enrollment and benefits for all individuals identified in Sect. I above who are being released. While the state’s Medicaid program may already be reviewing eligibility requirements more broadly, the Governor’s Office must ensure that specific steps are taken to expedite the enrollment and benefits for those being released from IDOC, including by considering expanding a category of presumptive eligibility for those identified pursuant to Sect. I above. For more information, see: https://d28lcup14p4e72.cloudfront.net/245981/5087590/Medicaid%20flexibilities%20 to%20address%20COVID19.pdf
Medical Documentation: Many of the individuals subject to Sect. I above will require immediate and ongoing medical care. The State or its vendor should therefore provide them a copy of their medical records without charge to facilitate their care.
For those released who are presumptively qualified for SSI benefits, we have attached a draft form that physicians can use to easily provide the needed documentation. This form should be provided to all facilities for immediate use.
Continuity of Care: To the furthest extent feasible, the State and the IDOC should take steps to:
● Provide at least a one month supply of prescription medications upon release. This is an increase from the current two-week supply issued in light of the

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difficulty many may encounter with obtaining identification and finances to obtain their own medications.
● Schedule appointments for continuing care with any outside treaters currently utilized for the patient’s care where the release is to the same community, or assist in identifying treaters as needed in the home community.
● Assist in providing resources and referrals for home services and health care. We will provide a list of resources.
● Provide the Social Security pamphlet to individuals identified in Sect. 1 above. https://www.ssa.gov/pubs/EN-05-10133.pdf
● Provide Medicaid/Medicare applications and the relevant phone numbers.
Amanda Antholt, Equip for Equality Sheila Bedi, Community Justice Clinic at Northwestern Pritzker School of Law Camille Bennett, ACLU of Illinois, Jobi Cates, Restore Justice Illinois, Thomas F Geraghty & Northwestern Pritzker School of Law, Bluhm Legal Clinic Sarah Grady, Loevy & Loevy Harold C. Hirshman, Dentons Alan Mills, Uptown People’s Law Center Jennifer Soble, Illinois Prison Project Sarah Staudt Chicago Appleseed Vanessa del Valle, MacArthur Justice Center

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EXHIBIT 8

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Statewide Summary Report Including Review of Statewide Leadership and Overview of Major Services
Report of the 2nd Court Appointed Expert Lippert v. Godinez
October 2018
Prepared by the Medical Investigation Team Mike Puisis DO Jack Raba, MD
Madie LaMarre MN, FNP-BC Catherine M. Knox RN, MN, CCHP-RN
Jay Shulman, DMD, MSPH

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Table of Contents
Background ........................................................................................................................... 2
Methodology......................................................................................................................... 2
IDOC Prisons Overview .......................................................................................................... 6
Key Findings .......................................................................................................................... 9
Statewide Medical Operations............................................................................................. 12 Leadership, Staffing, and Custody Functions............................................................................ 12 Wexford Provider Staffing and Physician Credentialing........................................................... 21 Statewide Use of University of Illinois ...................................................................................... 31
Statewide Overview of Major Services................................................................................. 32 Clinical Space and Equipment................................................................................................... 32 Medical Records........................................................................................................................ 37 Medical Reception .................................................................................................................... 42 Intrasystem Transfer................................................................................................................. 45 Nursing Sick Call ........................................................................................................................ 48 Chronic Care.............................................................................................................................. 52 Urgent/Emergent Care.............................................................................................................. 59 Specialty Consultations ............................................................................................................. 62 Infirmary Care ........................................................................................................................... 69 Pharmacy and Medication Administration ............................................................................... 77 Infection Control ....................................................................................................................... 84 Mortality Reviews ..................................................................................................................... 91 Dental Program ....................................................................................................................... 103 Internal Monitoring and Quality Improvement...................................................................... 118
Recommendations ............................................................................................................ 121 Key Recommendations of Second Court Expert ..................................................................... 121 Organizational Structure, Facility Leadership, and Custody Functions .................................. 122 Clinic Space and Equipment.................................................................................................... 124 Medical Records...................................................................................................................... 126 Medical Reception .................................................................................................................. 127 Intrasystem Transfer............................................................................................................... 129 Nursing Sick Call ...................................................................................................................... 129 Chronic Care............................................................................................................................ 131 Urgent/Emergent Care............................................................................................................ 133 Specialty Consultations ........................................................................................................... 135 Infirmary Care ......................................................................................................................... 137 Pharmacy and Medication Administration ............................................................................. 138 Infection Control ..................................................................................................................... 140 Mortality Reviews ................................................................................................................... 146 Dental Program ....................................................................................................................... 147 Internal Monitoring and Quality Improvement...................................................................... 150

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IDOC Summary Report

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other state prison systems nationwide.21 IDOC Spending in 2017 is still below the average 2015 spending of prisons nationwide.

Ten Lowest Per Capita Expenditures for Health Care in US State Prison
Systems in 2015

State Louisiana Alabama Indiana Nevada South Carolina Arizona Georgia Illinois Kentucky Mississippi

Per Capita Annual $2,173 $3,234 $3,246 $3,246 $3,478 $3,529 $3,610 $3,619 $3,763 $3,770

For most state systems, the number of employees, age, and percent of female population were the largest drivers of cost of prison health programs. The Federal Bureau of Prisons assessed that institutions with the highest percentages of aging inmates spent five times more per inmate on medical care and 14 times more per inmate on medication than institutions with the lowest percentage of aging inmates. The National Institute of Corrections estimates that inmates over age 55 cost, on average, two to three times more than the expense for all other inmates.22 Based on this same 2017 report, Illinois has the seventh lowest rate of persons over age 55 (8.5%). As well, in 2015 IDOC had a female population of 5.8%, the ninth lowest rate of females incarcerated in state prison systems. These two factors should lower the costs of care somewhat, but are not so great as to account for the difference in IDOC cost from the mean health expenditure of state prison systems.23
Staffing appears to be the biggest contributor to the low IDOC spending on health care. In fiscal year 2015, Illinois has the second lowest number of full-time equivalent (FTE) health care workers (19.3 per 1,000 inmates) of all 50 state prison systems. The range of FTEs per 1,000 in the 50 state systems range from 18.6 FTEs per 1,000 inmates to 86.8 FTEs per 1,000 inmates.24

21 In his deposition, Mr. Brunk the Chief Financial Officer for the IDOC stated on pages 12-13 that the total expenditures on health care in the IDOC were approximately $203 million. Using a population of approximately 42,000 the expenditures per inmate per year would be approximately $4,800. 22 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality. 23 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality. 24 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality.

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There is a direct correlation between the FTEs per 1,000 inmates and per-inmate annual spending. A low number of staff can reflect a more efficient system of care or understaffing with its attendant negative consequences for provision of health care. In our study, we found that in 2018 there were 25 employees per 1,000 inmates, which still places Illinois approximately in the lower 10% of state prison systems based on 2015 data. This will be discussed later in this report.
Key Findings
Overall, the health program is not significantly improved since the First Court Expert’s report. Based on record reviews, we found that clinical care was extremely poor and resulted in preventable morbidity and mortality that appeared worse than that uncovered by the First Court Expert.
Governance of the IDOC medical program is subordinated to custody leadership on a statewide level and at the facility level. The subordination of health care to custody leadership has resulted in a medical program that is not managed on sound medical principles and one that is without medical leadership.
The existing IDOC system of care was established to have a more robust central office capable of monitoring vendor activity. The IDOC central office has been progressively diminished over the years to the point where it is incapable of effective monitoring.
The medical program does not have a separate budget. The IDOC could not provide to us a document that included expenditures for medical care. Authorization and responsibility for medical expenditures does not reside with the health authority.
IDOC Administrative Directives are inadequate policies for this state system. The IDOC medical policies need to be refreshed, augmented, and address all National Commission on Correctional Health Care (NCCHC) standards.
The IDOC does not have a staffing plan that is sufficient to implement IDOC policies and procedures. The staffing plan does not incorporate a staff relief factor.
Custody staffing has also not been analyzed relative to health care delivery to determine if there are sufficient custody staff to deliver adequate medical care.
Budgeted staffing was increased but vacancy rates were higher than noted in the First Court Expert’s report. Staff vacancy rates are very high.

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list of major responsibilities or tasks, except for addressing questions of the physician staff. Because neither IDOC nor Wexford performs effective review of clinical care of physicians, poorly performing physicians continue to perform poorly without apparent oversight. We noted this on multiple chart reviews and mortality reviews.
Wexford Regional Medical Directors are also responsible for ensuring patient care is consistent with community standards.43 Yet we found many examples of physicians providing care inconsistent with current standards of care that appear to be systemic practices. For example, IDOC does not provide colorectal cancer screening based on current standards of care and does not appear to routinely screen patients with cirrhosis for varices or hepatocellular carcinoma. Persons with chronic obstructive lung disease (COPD) are not provided pulmonary function testing, which is a cornerstone of management of COPD. The current management of lipid disorders is not in line with current standards or with the Office of Health Services treatment guideline. We will discuss these later in the Chronic Disease section of this report. These deficiencies need to be corrected because these deficiencies have caused morbidity and mortality. There is no evidence of participation of the Wexford Regional Medical Team in identifying these deficiencies to the IDOC or ensuring that their physicians are practicing based on contemporary standards of care.
With respect to facility leadership, administrative supervision by HCUAs at individual facilities has improved since the First Court Expert’s visit. The IDOC HCUAs are responsible for administrative operational supervision of each facility. Of the 26 HCUA positions, all but one is now filled. However, two of the HCUAs also serve as acting Regional Coordinators, making them much less effective as HCUAs. Effectively, only 23 of 26 HCUA positions are filled. HCUAs were all competent and were engaged in solving administrative problems, even though some problems appeared unrecognized. This is one of the most significant and positive advances since the First Court Expert’s report and is a strength that the program can build on.
Medical Directors are all Wexford positions. Of the 26 Medical Directors statewide, 8.5 (33%) are vacant.44 This is an enormous vacancy rate for this key leadership position. Approximately only half of physicians have training in primary care, which will be discussed later in this report. This is a very small percentage of physicians trained in primary care. When a Medical Director is not trained in primary care it is very difficult to be responsible for monitoring performance of medical staff rendering direct patient care. An untrained physician is not likely to know how that care is supposed to be provided. We found that onsite monitoring of clinical care was very poor to nonexistent.
Director of Nursing (DON) positions can be either Wexford or IDOC. Fifteen (58%) of the DON positions are staffed by Wexford. Eleven (42%) are staffed by the IDOC. Seven (27%) of DON positions are vacant; four DON vacancies are Wexford positions and three DON vacancies are

43 Regional Medical Director’s Responsibilities as provided by Wexford Health Sources. 44 Illinois Medical Vacancy Report with ASRs as of 6/18/18 provided by the Attorney General’s Office from Wexford Health Sources. This report gives staffing at all facilities as of 6/18/18.

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IDOC positions. Nursing staff can be either IDOC or Wexford, making it difficult, because of coemployment rules,45 to properly supervise line staff.
Of the 78 leadership positions (Medical Director, DON, and HCUA) at the 26 facilities, 16.5 (21%) are vacant. The vacant positions are compounded by co-employment issues46 and use of two HCUAs as Regional Coordinators. The leadership vacancies are significant on a statewide basis. The lack of Medical Directors is dramatic and is compounded by using physicians in these positions who are, in our opinion, unqualified by virtue of not having primary care training.
In summary, administrative supervision by HCUAs is adequate but clinical-medical supervision and management, particularly physician care, is inadequate and places patients at significant risk of harm. The clinical supervision at the facility level is inadequate based on Medical Director and DON vacancies, and poor qualifications of physicians.
IDOC Policy The IDOC provides policy direction on clinical care through its Administrative Directives and chronic care guidelines. The medical Administrative Directives are a part of the larger IDOC Administrative Directives which include all custody policy. We will discuss the chronic disease guidelines in the section on Chronic Disease and dental guidelines in the Dental section. The Medical Administrative Directives are inadequate with respect to the breadth of guidance that is necessary for a correctional medical program. The IDOC has only 18 Administrative Directives. In comparison, the National Commission on Correctional Healthcare47 has 68 standards, which is a minimum panel of policies for a large prison system. There are essential areas of service that are not governed by Administrative Directives and thereby are not guided by policy and not standardized statewide. Though each facility can have additional institutional policies and procedures, the lack of statewide guidance means that practices are not standardized. The Office of Health Services needs to be responsible for statewide policy guidance in all areas of service, with local policy following statewide policy. The 18 medical Administrative Directives are inadequate for this purpose. The National Commission on Correctional Health Care standards are a reasonable guideline to determine the scope of processes of care that should be governed by Administrative Directives.
Wexford Provider Staffing and Physician Credentialing
It is our opinion that the quality of physicians in the IDOC is the single most important variable in preventable morbidity and mortality, which is substantial. The first step in provision of quality of care is to ensure appropriately credentialed medical staff. In its response to the First

45 Co-employment means that there are two employers (IDOC and Wexford), each of whom has some legal responsibility for the same employees. 46 When a State employee HCUA is responsible for managing the health care unit but staff are Wexford, there are some limitations with respect to discipline and assignment as a result of union rules. When a DON is a Wexford employee and staff nurses are state employees, the same occurs. These co-employment issues affect multiple facilities we visited. 47 The National Commission on Correctional Healthcare is the leading organization establishing standards for correctional health programs.

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Court Expert’s report,48 on page 4 an attorney for the State states that, “More than 80% of WHS’ [Wexford Health Services] physicians are either Board Certified in Family Practice or Internal Medicine, or have more than 10 years of Family/Internal Medicine practice experience or correctional medical experience.” This is a misleading statement that gives an inaccurate representation of the credentials of physicians. Credentialing information provided by Wexford shows that only six (20%) of the physicians are board certified in a primary care field. Because physicians typically work alone in these facilities, experience alone is no guarantee that performance will improve to be consistent with current standards of care. We document multiple preventable deaths in the mortality review section of this report. It is our opinion that poorly credentialed physicians contribute significantly to those preventable deaths.
Currently, there are 30 Wexford physicians working in IDOC facilities. Of these, only 16 (53%) have completed training in primary care. Of the 16 that completed primary care training, only six (20% of the 30) are board certified in primary care. Two doctors are obstetricians who work at LCC doing women’s care, for which they are appropriately credentialed and privileged; one of these is board certified. These doctors only provide obstetrical and gynecological care, not primary care. Five physicians have an internship or a year or two of primary care training but did not complete a residency.49 The remaining seven include:
• One anesthesiologist • One doctor with two years of occupational medicine • One doctor with some training in pathology • One doctor with a year of physical medicine • One surgeon • Two radiologists, one of whom did not complete residency training.
Credentialing is a process whereby a physician’s qualifications are evaluated by reviewing their education, training, experience, licensure, malpractice history, and professional competence with respect to the work they will be expected to perform. Proper credentialing is the foundation of protecting patient safety. Credentialing must ensure that a physician is properly trained for the work they will be performing. Credentialing protects patient safety by preventing incompetent, poorly trained, or impaired physicians from engaging in patient care. In correctional facilities, the scope of practice required and the health care needs of patients are mostly primary care, which requires physicians who have residency training in a primary care field. However, the only requirement in the IDOC with respect to credentialing is to verify that a physician has a license. A Regional Coordinator testified that the only review of credentials is to verify that the doctor has a license, and that their training, board certification, or disciplinary history is not part of credentialing review.50

48 Letter via email to Dr. Shansky, First Court Expert from William Barnes, representing the IDOC dated 11/3/14. 49 This information comes from items 42Z9081-42Z8845-Part 1; 42Z9082-42Z8845-Part 2; 42Z9085-42Z8845-Part 4; 42Z908842Z8845-Part 3; and 42Z9090-42Z8845-Part 5. This credentialing information was provided by Wexford Health Sources, Inc. 50 Deposition of Joseph Ssenfuma, Regional Coordinator, on September 28, 2017.

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Privileges are the services and procedures that a physician is qualified to perform based on training and experience. The credentials and training of a physician determine what privileges that physician should have. As an example, a doctor who is trained and credentialed in general surgery can obtain privileges to perform appendectomies and cholecystectomies. A physician trained and credentialed in obstetrics can obtain privileges to deliver babies. Physicians trained and credentialed in internal medicine or family practice can obtain privileges to practice primary care. Physicians trained and credentialed in internal medicine cannot obtain privileges to deliver babies or perform appendectomies. And physicians trained and credentialed in radiology or general surgery cannot obtain privileges to provide primary care. Because the scope of practice and needs of the patients in a correctional medical program are primary care, physicians should be credentialed and privileged in primary care. In IDOC, physicians are credentialed to perform primary care even when they have no training in primary care. This is a serious problem with the credentialing process. For this reason, we agree with the First Court Expert that Medical Directors be board certified in a primary care specialty. Given the size of the IDOC facilities, there is only one physician on staff at most facilities. When this physician is not trained in primary care, there is no other available physician to care for the patient.
Because there are so many physicians who have not completed a primary care residency, the level of supervision of their care should be at a higher level than for board certified physicians. This is not the case. There is no special monitoring for this group. All physicians receive the same type of peer review.
Peer review is a means to monitor the quality of physician and other provider care, and thereby protects patient safety. Peer review of physicians in the community is typically of two types. One type of peer review is done on a routine basis for all physicians and is done as a monitoring device to ensure quality of care. This type of peer review is often called performance evaluation program or PEP. A second type of peer review is done when a member of the medical staff may have committed a serious gross or flagrantly unacceptable error or exhibits a serious character or behavior problem and needs to be evaluated with respect to possible reduction of privileges or referral to a medical board. The latter type of peer review is generally a formal quasi-legal procedure that has significant implications for the physician’s employment and professional status. We found that the first type of peer review is done for all physicians and mid-level providers in the IDOC, but the second type of peer review does not appear to occur in IDOC, based on information made available to us. As will be detailed later in the mortality review section of this report, there were numerous grossly and flagrantly unacceptable episodes of care that should have resulted in peer review but did not. Peer review in the IDOC is ineffective, as physicians who commit repeated egregious medical errors continue to practice and continue to harm patients.
The first type of peer review which is performed by Wexford is a structured questionnaire performed by one Wexford physician on another Wexford physician. We noted at one facility that a general surgeon performed the peer review of the primary care work of a nuclear radiologist. It is our opinion that this type of performance evaluation is defective and unlikely to

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result in meaningful evaluation, as neither doctor is adequately trained to practice primary care and would not be able to know when care was adequate.
Also, the peer review that is done is so poor that it is unlikely to identify problems. The Wexford peer review consists of a review of 10 single episodes of care for five areas of service. For each of these areas of service there are a series of questions ranging from 10 to 15. Some of the questions are not relevant to clinical quality, such as:
• Is the handwriting legible? • Is the signature with professional designation legible? • Is the patient enrolled in all relevant clinics? • Are all medications written on a script? • Does the clinic include pertinent vital signs?
While it is important to write a legible note, legibility does not evidence clinical competence. Many questions require an interpretation. For example, the question “Was treatment appropriate for this visit” requires that a physician know the appropriate treatment. The problem is that when only 20% of doctors are board certified and 23% have no training in primary care, many doctors will not know the appropriate treatment. Doctors performing these evaluations need to be expected to know what the appropriate treatment is, otherwise the test will not perform as expected. Also, these episodes of care are picked at random and may not include patients that have serious illness. When someone does not have a serious illness, it is difficult to test the clinician, because it is very difficult to make an error if there is no decision to make with respect to the treatment. Additionally, it appears that these reviews are not taken seriously and appear to be done merely because these are requirements of the contract. For these reasons, it is not surprising that almost all peer reviews were scored 100% adequate. When we compare these results with death chart reviews we performed, there is dramatic discrepancy. Most chart reviews we performed contained many errors. We reviewed the care provided over two years prior to the death. Of 33 death charts we reviewed, there were over 1700 errors. Many had serious errors. Some had egregious errors that resulted in death. We noted the same level of medical error in chart reviews we performed on site visits. The Wexford methodology of peer review does not appear to accurately review physician practice, based on a comparison to our record review of clinical care. This process is not working as intended.
The First Court Expert opined that Wexford hired underqualified physicians, and recommended that facility Medical Directors be trained in primary care and be board certified. We agree with this finding, based on the credentialing information above, and we agree with his recommendation.
In reviewing the Defendants’ comments to the First Court Expert’s Draft Report,51 the Defendants challenged the assertion of the First Court Expert that Wexford Health Services has hired “underqualified clinicians.” In their attempt to refute that assertion, the Defendants

51 Re: Lippert v. Godinez – Defendants’ comments regarding Confidential Draft Report via email dated November 3, 2014, authored by William Barnes.

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stated that, “The community standard, as espoused by the American Medical Association, requires physicians to possess only a license to practice medicine.” This is misleading and inaccurate. This statement implies that the current community standard of medicine is for physicians to only have a license to practice medicine, presumably in any field. We disagree. It is our opinion that the community standard in the U.S. is for physicians working in primary care to have residency training in a primary care field. One would never see a pathologist delivering babies. The Defendants’ statement also implies that the American Medical Association (AMA) endorses their position. This statement of Defendants is neither the community standard nor is it a standard we could identify as espoused by the AMA.
It is true that it is legal for a doctor without residency training to open a private practice in the community and practice primary care medicine without any training in primary care. However, it is becoming increasingly uncommon, and particularly in urban areas, it is now extremely uncommon to find doctors without residency training in primary care who work in general practice. The standard in the community is for physicians in organized medical practices to undergo credentialing and privileging, and to have residency training consistent with their scope of practice.
With respect to the recommendation to hire board certified physicians, the State’s response said,
“This recommendation, along with any recommendations dictating specific training or certification for licensed correctional physicians, lacks any justification or support in state law and community, ACA, AMA, and NCCHC standards. Accordingly, this recommendation exceeds minimum constitutional standards of adequacy” [my emphasis].52
With respect to the assertion that use of board certified primary care physicians exceeds minimum constitutional standards of adequacy, we note as an example that there has been Federal Court intervention requiring use of primary care trained physicians when that training was necessary to protect inmate-patients. For years, the California Department of Corrections and Rehabilitation (CDCR) had poorly credentialed physicians, which resembled the current situation in the IDOC. In 2004, in the California prison system, many physicians were not trained in primary care; instead, they had training in surgery, radiology, gynecology, pathology, etc., similar to the IDOC situation in 2018. Many physicians had prior or current sanctions of their licenses and evidence of clinical incompetence by virtue of malpractice claims, which we were unable to evaluate for Wexford physicians. It was the opinion of the Court in California that the lack of qualified physicians resulted in increased morbidity and preventable death. We believe that the situation in California is similar to the situation in the IDOC. In California, as a result of that situation, the Federal Court issued an order53 requiring the use of physicians who were

52 Letter via email to Dr. Shansky, First Court Expert from William Barnes, representing the IDOC dated 11/3/14. 53 Proposed Stipulated Order Re: Quality of Patient Care and Staffing; Marciano Plata, et al., v. Arnold Schwarzenegger, et al.; United States District Court Northern District of California No. C-01-1351 T.E.H., originally filed 9/17/04. In that order, the Court stated: “As of January 15, 2005, defendants shall not hire independent contractor primary care physicians who are not boardeligible or board certified in internal medicine or family practice.” p. 3.

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board certified or board eligible54 in internal medicine or family practice.55 We note that in the California prison system in 2007, there were 18 preventable and 48 potentially preventable deaths, and in 2017, when all physicians were required to be board certified, there were 0 preventable deaths and 18 potentially preventable deaths.56 Although there were other systemic improvements that helped reduce the number of preventable deaths, improvements in physician credentialing played the major role. Improving credentials of physicians and removal of unqualified physicians has been shown to reduce mortality.57
We have learned that in the mid-1980s, approximately 12 IDOC prison facilities were accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). At that time, the Agency Medical Director approved all facility Medical Directors and his requirement was that Medical Directors completed primary care training. Accreditation by JCAHO required privileging based on appropriate credentials. At that time, the IDOC placed into its Administrative Directives the requirement that all physicians have one-time primary source verification of their credentials, which was a requirement to verify training. The IDOC ended their accreditation with JCAHO but kept in the Administrative Directives the requirement of primary source verification. Over the years this practice was ignored and currently the HCUAs we interviewed do not even know what primary source verification is. The only credentialing review is to ensure at the annual CQI meeting that every physician has a license.
Physician Staffing Physician staffing in IDOC is very poor. The Vice President of Operations for Wexford could not remember the last time there was a full physician staff. She thought in 2014 there was only one vacancy, but that was as close to full staffing as the program got. We noted earlier in this report that IDOC lacks adequately trained physicians. This is compounded by vacancies in physician positions. Persistent and ongoing vacancies in the Medical Director position title contribute significantly to physician staffing deficiencies. In addition to vacancies of Medical Directors, all five facilities we visited were missing a physician. Two facilities had replaced a physician position with a nurse practitioner because of the inability to fill physician positions. Statewide, the total days of missing Medical Directors totaled 22% of total days these positions were supposed to be filled,58 an unacceptable vacancy rate.
Because of vacancies, physicians are moved from site to site as “Traveling Medical Directors.” One of the facilities we investigated, NRC, had a Traveling Medical Director. This individual did

54 Board eligible is a term used to describe a physician who has completed a residency training in a field and is therefore qualified to take a board certification test for that specialty. For example, a board eligible internist is one who has completed a residency in internal medicine and is qualified to take the board certification test but has not yet done so. 55 Since this order, the California Department of Corrections and Rehabilitation, through the Receiver’s office, requires board certification in family practice or internal medicine. 56 Based on annual analyses of inmate deaths as reported by Dr. Imai, consultant to the medical receiver in California as found under the heading of Death Review at https://cchcs.ca.gov/reports/. 57 Terry Hill, Peter Martello, Julie Kuo; A case for revisiting peer review: Implications for professional self-regulation and quality improvement. Plos One at https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0199961&type=printable. 58 Document 42P5621-IDOC Facilities lacking permanent medical directors 7-1-15 to 11-26-17 Bates number 550.

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not participate meaningfully in quality improvement, did not show any evidence of oversight of the medical program, and had clinical issues.
The turnover of Wexford physicians is also very high. Of 33 physicians listed on a 9/19/14 report59 by Wexford, only 18 (54%) are still working three and a half years later. The inability of Wexford to hire and retain qualified physicians is a serious problem and was mentioned as a significant problem by every HCUA we spoke with. There has been no formal analysis of this that we could find. The Vice President of Operations for Wexford told us that it was harder to recruit to corrections because of the impression that if you worked in corrections, you were a bad doctor. We disagree. In our opinion and from experience, recruitment in corrections depends on establishing conditions of work that are professional and foster a sense of providing a worthwhile service. When that occurs and when doctors are properly supported, qualified doctors can be found and retained in correctional environments and elsewhere.
At the five sites we visited, none had a long-tenured Medical Director. LCC had a Medical Director who had the longest tenure of the five facilities we inspected. She had been Medical Director since May of 2016. The Medical Director at Dixon started in October of 2017. The Medical Director at MCC has been in his position since June of 2017. One Medical Director was at Dixon for a short period of time before being moved to NRC. After several months at NRC, he was moved to SCC. About two months after being moved to SCC, he resigned. His position at NRC was filled in coverage by the ex-Medical Director at Hill, who the First Court Expert stated had identified clinical issues. This musical chairs rearrangement of Medical Director assignments is demonstration of the failure to create an environment likely to attract qualified physicians. The IDOC needs to determine why it is that their vendor cannot recruit and retain qualified physicians.
Physician leadership was not improved based on the First Court Expert’s comment that,
“the Medical Directors were functioning in primarily clinical roles and spent little if any time reviewing the clinical practice of other providers or engaging in other important administrative duties.”60
Several of the HCUAs spoke about poor physician quality as an issue. Two of the Medical Director positions were vacant. A coverage physician at one facility with a vacant Medical Director position did not participate meaningfully in quality work or in providing clinical leadership. In two of the remaining three facilities we visited, the HCUA spoke of having problems with the Medical Director. One was described as only doing chart reviews, not wanting to see patients, not reviewing deaths, and having to be urged to see patients. When leadership and quality of physicians is inadequate, patients are placed at risk because poor quality will not be identified or corrected.

59 40C0134- IL Physicians Report 9 19 14 Key Produced by Wexford Health Services. 60 Final Report of the Court Appointed Expert, Lippert v. Godinez December 2014 p. 7.

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Non-Physician Staffing On a statewide basis, exclusive of dialysis and the HIV and hepatitis C telemedicine program, there are 1119.6 medical staff in the IDOC program, with an inmate population at mid-year 2017 of 43,075. This amounts to 26 staff per 1000 inmates, which places IDOC approximately in the lowest 10% of state prison systems in the country61 with respect to staffing numbers based on 2015 data. Of the 1119.6 staff, 401 (36%) are employed by IDOC and 718.6 (64%) are employed by Wexford Health Sources. Of the 1119.6 medical staff, there are 245.8 (22%) vacancies, not including leave of absences, which would increase this number a few points. Wexford has an 18% vacancy rate for its 718.6 employees and IDOC had a 29% vacancy rate for its 401 employees. These are very high vacancy rates and compound a very low staffing level, making staffing a critical problem statewide. This was confirmed by HCUAs at sites we visited.

We compared facility staffing for mutually visited facilities. In 2014, the First Court Expert determined that for the five facilities we visited there were 303.41 budgeted positions, an 18% vacancy rate, and 25 staff per 1000 inmates.

Positions, Vacancies, and Positions per 1000; First Court Expert’s 2014 visit62 Facility Positions Vacancies % Vacancy Population Staff per 1000

SCC & NRC 73.90

23

31%

4078

18

LCC

62.21

4

6%

1997

31

Dixon

66.30

18

27%

2349

28

MCC

101

9

9%

3750

27

Total

303.41

54

18%

12174

25

For the same five sites we visited, there were 405.05 budgeted positions. There were 99
(23.5%) vacancies. This is a very large vacancy rate, which makes it difficult to effectively operate a health program.63 Four of the five facilities we visited had unacceptable vacancy rates.64 We note several key differences in the staffing differences between 2014 and 2018. The
population in the five facilities we reviewed decreased by 2177 (18%). The number of positions

61 Prison Health Care: Costs and Quality, Pew Charitable Trusts, October 2017. We note that the staffing levels given in the Pew study reflect 2015 numbers. However, these 2018 IDOC staffing numbers still would rank Illinois in the lowest 10% of state prison systems comparing IDOC 2018 staffing to nationwide 2015 numbers. 62 This table is constructed from data taken from tables presented in the First Court Expert’s report. 63 In Defendants’ comments on our report they noted that there is a national nursing shortage and cite a survey of readily available health care facilities in the United States in January 2018 by Nursing Solutions, Inc. a recruitment firm. Defendants note that over 25% of the hospitals in this country who responded to the survey have Registered Nurse (RN) vacancy rates of greater than 10%. This same study reported that the average vacancy rate for Registered Nurses is 8.2%. In either case, nursing vacancies in the IDOC facilities we visited exceeded the average from this survey and were much more than the maximum of 12.5% used in the study. 64 Except for LCC, all IDOC facilities had vacancy rates of 20% or greater. These vacancy rates are much higher than Federal Bureau of Prisons policy that establishes that vacancy rates not exceed 10% during any 18-month period (Program Statement P3000.03: Human Resources Management Manual, Chapter 3, page 11 obtained at https://www.bop.gov/PublicInfo/execute/policysearch#. There are no published reports comparing vacancy rates amongst health care providers working in state prison settings.

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increased by 101.64 (33%).65 The staff per 1000 inmates increased by 16 (64%). But the vacancy rate increased from 18% to 23.5%, a 30% increase.

Positions, Vacancies, and Positions per 1000 Inmates; 2018 visits

Facility

Wexford and IDOC staff

Vacancies

% Vacancy

Population

Staff per 1000

SCC

98.00

24

24%

1183

83

NRC

69.00

29

42%

1681

41

LCC

53.15

1

2%

1806

29

Dixon

93.80

19

20%

2298

41

MCC

91.10

26

29%

3029

30

Total

405.05

99

23.5%

9997

41

While budgeted staffing increased at three of five facilities we visited, it decreased at two of five facilities. There are 44 additional staff working at these facilities than there were when the 2014 report was written.

Four of five facilities we visited had significant vacancy rates, as high as 42%, which are mostly nursing staff. Almost every HCUA told us that there were insufficient nursing staff. This was confirmed in the deposition of the Agency Medical Coordinator, who noted that over the past several years there have been nursing shortages at SCC, Pontiac, Decatur, Graham, Southwestern, and MCC.66
Most HCUAs told us that if all their positions were filled they believed that there would be adequate staff. We do not agree. The IDOC has not performed a staffing analysis based on expectations of the Administrative Directives and special care needs, including infirmaries and geriatric care. Relief factors have not been included in staffing considerations and budgeted staffing numbers do not appear to be adequate. In our opinion, despite increased nurse budgeted staffing and even when vacancies are filled, there will still be nursing shortages. The IDOC, in their comments on our report, assert that the IDOC in the current fiscal year and Wexford in the past year spent a total of $8,283,718 on overtime wages. We acknowledge that this is a significant expenditure. Based on our investigation, overtime is used to cover some but not all vacant shifts. However, reliance on overtime contributes to staff fatigue, increased errors, staff dissatisfaction and turnover as well as higher incidence of poor patient outcomes.67 While we did not evaluate working conditions for staff, we did find ample evidence of error and

65 Dixon appears to have had a significant increase in staffing, but as the HCUA related to us, this is artefactual, as 22 nurses were moved from the mental health program to the medical program but still had assignments in mental health. Their reassignments did not create increased staffing for the medical program, but gave the impression that there had been a large increase in staffing. If these 22 nurses are removed from the Dixon staffing, the actual increase in staffing would be 79.64 positions or a 26% increase, not a 33% increase. 66 Deposition of Kim Hugo, Agency Medical Coordinator pp. 25-31, April 11, 2018. 67 Institute of Medicine (2004) Keeping Patients Safe: Transforming the Work Environment of Nurses. National Academies Press, Washington, D.C., Stanton, M. (2004). Hospital nurse staffing and quality of care. Agency for Healthcare Research and Quality. Research in Action, Issue 14.

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poor patient outcomes in our review of health care provided to IDOC prisoners. The use of overtime does not change our opinion that a staffing analysis is needed or that there is lack of adequate staffing.
The Wexford component of staffing is memorialized in a contract document called a Schedule E. Based on interviews with senior leadership of Wexford and IDOC, we could not determine who is responsible for developing staffing levels found in the Schedule E. The Wexford Vice President of Operations told us that the Schedule E staffing is the recommended staffing of the IDOC to which the vendor can make suggestions. Mr. Brunk, the Chief Financial Officer, told us that the Schedule E is developed by the Wexford Regional Manager and reviewed by the IDOC Office of Health Services. The Agency Medical Director told us that he had input into the Schedule E for new facilities but otherwise had no input into the Schedule E, and that Mr. Brunk or Wexford developed the Schedule E, which the Office of Health Services approved. The Chief of Programs and Support Services, who is the health authority, told us that the Agency Medical Director was responsible for development of the Schedule E. Development of the Schedule E is not in the job description of the Agency Medical Director. The lack of a central health authority, we believe, contributes to this confusion. Furthermore, the Schedule E as represented in the current contract does not include input from HCUAs, Regional Coordinators, or even the Agency Medical Director in addressing clinical needs in their facilities. Given these responses, it is our opinion that the Schedule E does not reflect actual staffing need, as it does not appear based on any staffing analysis we could identify after discussions with health leadership who we thought would be responsible for this document.
No one we spoke with has responsibility for determining if total staff (state and Wexford) is adequate. The IDOC Agency Medical Director and the Agency Medical Coordinator told us that an Assistant Warden of Programs (AWP) from Sheridan, who also was a nurse, was engaged in analyzing staffing at various sites, but the extent of this analysis was not known to the Agency Medical Director. The Illinois Nursing Association (INA) is the union for the registered nurses in the IDOC. The Agency Medical Coordinator participates on an INA standing committee that meets monthly to discuss INA related nursing issues. The INA has raised issues with respect to staffing at certain facilities. When this occurs, the AWP from Sheridan performs a staffing analysis, brings it to the standing committee, which then considers staffing recommendations, and forwards them the Agency Medical Director for review. Other than this effort, we could identify no analysis of staffing need state wide.
Based on conversations with senior IDOC leadership, staffing increases at NRC and SCC were a result of union negotiations. Senior IDOC Office of Health Services staff were not involved in this decision,68 although a Regional Coordinator gave recommendations on how many nurses were needed. These increases were not based on a thorough staffing analysis, as relief factors were not used and because no positions other than RN positions were considered. At no facility has there been an analysis of staffing need based on adherence to the Administrative Directives. This creates a gap between clinical need and staffing levels that affects all facilities.

68 See pages 14-16 of deposition of Kim Hugo, Agency Medical Coordinator, April 11, 2018.

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the Warden. This appears to have resulted in procedures that accommodate custody needs even when it results in medication administration practices that violate nursing practice standards.
Further, we observed nurses floating medication well in advance of administration, which alters the medication’s properties, and crushing medication that was put in the reused envelopes, which contaminates other medications put into the envelope. These practices put inmates at risk of receiving ineffective treatment and adverse drug reaction.
Medication Continuity Chronic disease patients are not monitored to ensure continuity in treatment nor is their compliance with prescribed treatment assessed. Chronic disease medications are provided to patients either as “Keep on Person” (KOP) or each dose is administered by a nurse. We found many examples of patients whose ordered medications were never provided, were delayed starting, and were stopped because the patient had not been seen by a provider to renew medication. Record reviews indicated that appointments for chronic care are not scheduled to take place prior to expiration of chronic disease medication orders. As a result, providers often reorder medications without seeing the patient to conduct a clinical evaluation to determine whether the treatment plan should be continued or changed, based upon the how well the patient’s chronic disease is controlled.
Facility policy and procedures162 direct that the MAR be available with the medical record at the time of a chronic care provider visit. However, we saw no evidence that current MARs were available at the time a patient saw a provider. We also saw no evidence that providers review the MAR and discuss the patient’s adherence as part of chronic care appointments. Facility policy and procedures163 also instruct nurses to refer patients to a provider for evaluation and possible change in treatment if they refuse to take prescribed medication. In the records we reviewed, there were multiple examples of patients not taking medication as prescribed who were not referred for provider evaluation.
Monitoring Performance Pharmacy audits and inspections, which are done routinely, document the problems described above. These reports are reviewed and included in the institution CQI meetings. They document ongoing problems system wide with medication, including: use of the envelope rather than MAR to prepare medication; failure to document medication given on the MAR; failure to transcribe orders onto the MAR; administering medication for which there was no order, or when the inmate was not present at the facility; administering medications that differ from the order; documenting in advance that medication was administered; and the presence of open, undated, multi-use containers of medication. There has been some coaching and
162 LCC, SCC, and DCC Operations Policy and Procedure P. 107 Management of Chronic Disease and MCC Policy and Procedure V3-12 Medical management of offenders with a chronic condition. No policies and procedures were provided for NRC. 163 LCC, SCC, and DCC Operations Policy and Procedure P. 128 Medication Services and MCC Policy and Procedure V 4-1 Pharmacy Services. No policies and procedures were provided for NRC.

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counseling of individuals, but there has been no review or analysis done to identify root causes for these persistent failures, and no effort made to eliminate systemic causes of failure or improve performance through corrective action planning. In the meantime, inmates are subjected to delays and interruptions of treatment, unsanitary conditions, and medication errors.
We note that some of the root cause problems appear to be related to custody control of medical processes within the institution and the apparent reluctance of health staff to openly discuss with custody the need for their cooperation in the process of medication administration. The governing bodies of CQI committees at several facilities were mostly custody-trained staff. This is an impediment to effective monitoring of clinical processes, such as medication treatment. Participation and support of custody staff in CQI is very important; however, medical staff must direct and control the monitoring of health care and be able to drive necessary performance improvements.

Infection Control
Infection control is an essential element of an adequate health care system. The inmate population has a high prevalence of communicable and infectious diseases. Because of the high prevalence of communicable diseases, a highly functioning infection control program must be in place to identify, track, and assist in management of these illnesses.
Approximately 4-6% of TB cases reported in the United States occur among people incarcerated at the time of diagnosis. The incarcerated population contains a high proportion of people at greater risk of TB than the overall population.164 In 2013, there were 36,064 persons with HIV infection in the civilian population of Illinois, with a population over 18 years old of 9.7 million or 0.4% of the population. In 2010-2015, IDOC had 686 inmates with HIV infection or 1.5% of its population.165 The IDOC HIV prevalence was almost four times as high as the civilian HIV prevalence. It is estimated that approximately 160,000 persons in Illinois have hepatitis C or about 1.6% of the Illinois population, as opposed to 5.6% known cases in IDOC and an estimated 10% overall estimated prevalence. The IDOC had at least 3.5-6.25 times the rate of hepatitis C infection of the civilian population. The burden of sexually transmitted disease, MRSA, and scabies are also typically higher in prison systems.
Conditions of confinement promote the spread of disease because of environmental conditions within the prisons. Inmates are housed in close quarters. In our IDOC Prison Overview section we spoke about how crowded the IDOC prisons are. The overcrowded conditions, particularly in antiquated facilities, promote transmission of multiple types of infections and contagious diseases. Individuals have no control over the quality of air they breathe via the facility ventilation system; they live in cells or dormitories that have been occupied by others and are
164 TB in Correctional Facilities in the United States, Centers for Disease Control and Prevention as found at https://www.cdc.gov/tb/topic/populations/correctional/default.htm. 165 HIV in Prisons, 2015 – Statistical Tables , Laura Maruschak and Jennifer Bronson, Ph.D., BJS Statisticians; August 2017, NCJ 250641, US, Department of Justice Bureau of Justice Statistics.

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expected to clean their living area with supplies that are available; they are provided food prepared by inmate workers to eat with silverware and plates cleaned by inmate workers; they are provided linens and clothing that are washed by inmate workers or wash linens themselves with laundry soap that is available; they use toilets, sinks, and showers that are used by many others. Every one of these activities of daily living carries multiple opportunities for communicable or infectious disease transmission and illness for both staff and inmates. Infection control programs in the correctional setting establish and monitor procedures to prevent exposure to diseases that can be transmitted in the correctional setting. Infection control programs also identify sources of infection through screening and take steps to prevent or mitigate infection of others, to treat persons with infectious diseases, and improve the health and safety of staff and inmates by providing information on prevention, education on self-care, and immunizations.166 These efforts require surveillance of disease by accurate statistical means, both for required reporting purposes and so that the IDOC medical program can understand how to study, plan, and prepare for the care they will need to provide. The infection control program is usually coordinated by a registered nurse with consultation from a designated provider with expertise in infectious diseases,167 and supported by data collection methods that can reasonably track diseases within the prison system.
First Court Expert Findings The First Court Expert found IDOC’s infection control program was a moving target across the system, with some facilities having well developed infection control programs and other facilities having programs described as being in their infancy. Facility health care staff had been provided with an exposure control manual, but IDOC provided no oversight of infection control. At some facilities, no one was clearly designated with responsibilities for infection control, and the duties were simply added to those of the HCUA or DON. Other facilities had identified a specific nurse responsible for infection control, but the duties of the position had not been defined. In addition, no training in how to operate an effective infection control program had been provided to those individuals who had been assigned responsibility for infection control.
Examples of systemic issues described by the First Court Expert which occurred as a result of the disarray in infection control monitoring and lack of oversight from IDOC included the failure to launder bed linens of infirmary patients in water temperatures hot enough to destroy pathogens transmitted by blood and body fluids; negative pressure rooms that were not functional and not monitored to ensure that negative pressure was maintained to prevent transmission of airborne illnesses; lack of proper sanitation of medical equipment; and lack of disinfection procedures to provide clean surfaces when examining patients.
Current Findings The systemic issues described in the First Court Expert Report still occur today. While there has been some improvement in the use of paper barriers on examination tables, little else has
166Bick, J. (2006) Infection Control in the Correctional Setting. In M. Puisis, (Ed.) Clinical practice of Correctional Medicine. (2nd ed.) Philadelphia: Mosby Elsevier. 230-231. 167 Lane, M. (2006) The infection control program. In M. Puisis, (Ed.) Clinical practice of Correctional Medicine. (2nd ed.) Philadelphia: Mosby Elsevier. 460-461.

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changed with regard to the infection control program. The following summary of our findings reinforces the findings of the First Court Expert. We had multiple additional findings that give us concern.
The IDOC has had numerous recent outbreaks of contagious and infectious diseases. Since 2008, there have been several outbreaks of scabies in Illinois prisons. The latest was in Taylorville in 2016, in which the prison was locked down and 214 inmates were treated.168 In 2012, a norovirus outbreak sickened 140 inmates at SCC.169 The numbers of inmates affected in these outbreaks reflects poorly on the surveillance and typical preventative measures enacted by infection control procedures to abort the contagion earlier and prevent the widespread infections that occurred at these facilities. An inmate at SCC also contracted Legionnaire’s disease in 2015.170 At the Danville Correctional Center, 78 persons were affected by histoplasmosis in 2013, likely from soil disruption. This outbreak was initially thought to be adenovirus, but required investigation by the federal Centers for Disease Control and Prevention and was found to be histoplasmosis.171, 172
Typically, outbreaks such as these are monitored and sometimes managed by the infection control program. Yet in the IDOC, there was no designated individual responsible for infection control at four of five facilities we visited, including at SCC, where one of the outbreaks described above occurred, as well as the isolated case of Legionnaire’s disease. At SCC, infection control duties were dispersed amongst several staff nurses, the DON, and the HCUA, and the program was not effective. The norovirus outbreak at SCC was large, and typically early infection control measures would be expected to reduce the size of such an outbreak. At the same four facilities there were no schedules for routine sanitation and disinfection of health care areas. Basic maintenance of rooms was lacking. MCC has an extensive collection of policies and procedures that detail cleaning and sanitation of every room in the health care building.
At MCC, responsibility for infection control resides with one of the nursing supervisors. Her responsibilities are managing TB surveillance, performing sanitation inspections, ensuring food handlers are cleared for work, monitoring skin infections, interface with the Illinois Department of Public Health, monitoring negative pressure rooms, and monitoring hygiene in clinical spaces. In addition, she manages HIV and hepatitis C clinics, coordinates follow-up of patients treated for TB infection, and provides supervision of inmate peer educators. It is our opinion that the infection control nurse is an essential component of the health care program at IDOC facilities and is a full-time position.

168 Scabies Outbreak Causes Temporary Lockdown of Taylorville Prison, Doug Finke, The State Journal Register, September 19, 2016. 169 Norovirus Outbreak Hits Illinois Prison; Food Safety News December 29, 2012. 170 Stateville Inmate Diagnosed with Legionnaire’s Disease, Dawn Rhodes, Chicago Tribune August 12, 2015. 171 New details regarding illness among inmates at Danville Correctional Center. Found at https://www2.illinois.gov/idoc/news/2013/pages/danvilleccillness.aspx. 172 Centers for Disease Control and Prevention website Outbreaks and Investigations lists Histoplasmosis in an Illinois Prison. Details given were that this occurred in August-September 2013 with 78 cases and likely related to disruption of soil containing bird droppings. Found at https://www.cdc.gov/fungal/outbreaks/index.html.

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We observed significant challenges to safety and sanitation at every facility visited. For example, at SCC we observed cockroaches, gnats, and flies in the infirmary; the room used for hemodialysis (considered a sterile procedure) had peeling paint on the walls, there was standing water on the floor, and the garbage can was not covered. The kitchen/dining area was occupied by birds, and their droppings were evident on the walls and floors. At Dixon, all three floors of the medical building had missing floor tiles, which is a sanitation issue in an area dedicated to the delivery of health care.
NRC is the only facility among the five we visited that does not conduct monthly safety and sanitation inspections. At the other facilities, safety and sanitation inspections do not adequately identify problems requiring remediation. For example, we found faulty negative pressure isolation rooms and nonfunctional dental equipment that were not identified because they are not included in the safety and sanitation inspections. We also found furniture, equipment, and hard surfaces (floors, ceilings, sinks, cabinetry) were rusted, broken, or deteriorated in health care areas at all facilities, which had not been documented as issues needing repair on safety and sanitation rounds.
Moreover, review of safety and sanitation findings in the minutes of CQI meetings document the persistent failure or lengthy delay in remedying identified problems. Safety and sanitation inspections should inspect or monitor the condition, function, and annual certification of clinical equipment, functionality of the negative pressure rooms, integrity of bed and chair upholstery, completeness of medical cart and emergency response bag logs, the training of health care unit porters, and other health care issues.
The TB prevention and control program in IDOC is not effective. The hallmarks of an effective TB program in correctional facilities are: initial and periodic TB screening, successful treatment of TB disease and infection, appropriate use of airborne precautions, comprehensive discharge planning, and thorough and efficient contact investigation when a case of TB disease is identified.173
At IDOC, TB screening is improperly performed, treatment of infection is delayed, and negative pressure rooms (an airborne precaution) often are not functional or monitored. We did not evaluate TB discharge planning or contact investigation, although in the absence of an individual assigned responsibility for infection control, these interventions are most likely sporadic and haphazard as well. At NRC, nurses do not read tuberculin skin tests properly and only document results in the health record when they have time. Instead of inmates being escorted to the medical clinic for nurses to read their tuberculin skin tests, nurses must go cell to cell. In addition, NRC officers do not open the food port for inmates to extend their arm for nurses to palpate and measure the results of the test. Instead, nurses read the test by looking through the glass window of the cell door, which is inappropriate technique.174 There was
173 TB in Correctional Facilities at https://www.cdc.gov/tb/topic/populations/correctional/, Epidemiology of Tuberculosis in Correctional Facilities 1993-2014 at https://www.cdc.gov/tb/publications/slidesets/correctionalfacilities/default.htm. 174 A tuberculin skin test is read by manually palpating the size of induration of the test site with good overhead lighting. To read a tuberculin skin test through a glass window is inappropriate.

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evidence in the review of records that other sites distrust TB screening performed at reception centers and rescreen inmates upon arrival at their parent facility. We also observed that nurses at Dixon merely look at the skin test site through the cell door rather than palpating and measuring induration in a well-lit area. We did not observe nurses reading tuberculin skin tests at all facilities, but based upon the two sites where we observed poor practices, we conclude that TB screening at IDOC is not adequate.
We reviewed the records of four patients who had completed treatment for latent TB infection. In three cases, the patient was subjected to multiple skin tests (which were positive) and multiple chest radiographs, which were unnecessary, before treatment was finally initiated. In the other case, treatment was initiated even though skin testing was ordered but never completed, based upon a history of a positive skin test reported by the inmate when he requested treatment initiation. Initiation of treatment for latent infection was haphazard and delayed.
Negative pressure isolation rooms were either not functional or the monitor was not working at three of the five sites we visited. At NRC, the monitor in one room was not working and in the other room the vent was taped shut, disabling the negative pressure. At SCC, neither room was functional and the equipment had not been serviced for years. At LCC, two of three rooms were not functional. Negative pressure rooms need to be maintained and ready for use; this is not the case in the IDOC, and places patients and staff at risk of airborne infection.
The UIC provides treatment of inmates with HIV and hepatitis C via telemedicine. For hepatitis C, UIC has no role in managing hepatitis C patients before referral and after antiviral treatment and has no role in screening for these diseases. UIC provides no assistance in managing other complications of hepatitis C including cirrhosis, varices, or ascites as examples. IDOC facility providers are responsible for that care but do not appear to know how to provide it. One or more nurses are designated at each site to coordinate these clinics and the care of these patients. The quality is highly dependent upon the interest and capability of each nurse assigned these responsibilities. There is no one identified to monitor or oversee the work of the clinic coordinators, who must negotiate with all the other users of the telemedicine space to schedule clinics timely. Coordination between the UIC infectious disease specialists and primary care providers is problematic, as evidenced in the example of one patient with HIV; the specialist recommended lowering the patient’s dose of metformin (a medication used to treat diabetes) because of an interaction with one of the HIV medications prescribed.175 The primary care provider at the facility responsible for the patient’s diabetic care never acted on the recommendation. The HIV specialist reduced the dose of metformin at the next visit. The patient was at risk of clinical deterioration because of the primary care provider’s omission for five months.
IDOC has adopted what it describes as opt-out HIV testing at intake, but policy and practice are not consistent with the use of this term. Opt-out testing is recommended by the Centers for

175 Dixon Infection Control Patient #3.

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Disease Control because it supports early identification and treatment.176 The IDOC Administrative Directive still requires that consent be obtained before drawing blood for HIV, and in practice this consent is still obtained.177 The practical effect is that fewer newly arriving inmates are screened for HIV as compared to hepatitis C. The IDOC should revise the Administrative Directive to eliminate the requirement for written consent and initiate opt-out HIV testing.
We also question the effectiveness of periodic screening programs for HIV and hepatitis C infections. We noted on one death review178 a man who was not known to be HIV infected and was not offered HIV screening at two annual health evaluations we reviewed, despite having a history of multiple sexual partners, prior blood transfusions, and a history of sexually transmitted disease all of which were risk factors for HIV infection. He ultimately developed severe HIV disease, which was unrecognized for several years until he was finally admitted to a hospital, where he died of severe complications of his undiagnosed and untreated HIV disease. Sentinel cases such as these should prompt an investigation into why the system failed to timely screen, diagnose, and treat this patient, whose death was preventable. The infection control nurse should monitor results of HIV and HCV screening to verify that policies to screen for communicable diseases are effective.
All five of the facilities visited report cases of culture positive Methicillin-resistant Staphylococcus Aureus (MRSA) as is required by IDOC. However, only MCC tracks all skin and soft tissue infections (independent of whether a culture is performed) as recommended by the First Court Expert. In addition, tracking should include culture and sensitivity results to ensure correct antibiotic selection and housing location of the patient. Infection control nurses should review tracking results to identify clusters of infections by housing unit, perform additional case-finding, and identify environmental factors that may be promoting infection. Factors in correctional settings found to contribute to skin and soft tissue infections include sharing towels and soap, ineffective laundry practices, poor sanitation of exercise equipment and showering facilities, poor hygiene practices, unnoticed infections that leak pus, and poor access to medical care.179 Tracking enables sources of infection to be identified and steps taken to eliminate factors associated with disease transmission. For example, at MCC one of two cases of skin infection reviewed was a patient who developed infection six days after hernia surgery and having been returned immediately to general population at the facility.180 This case of soft tissue skin infection raises questions about the ability of the patient to adhere to wound care instructions and suggests consideration of a policy of admitting inmates to the infirmary only after it is determined that the patient is stable and able to adhere to wound care instructions.

176 Opt-out testing means that testing will be performed unless the patient refuses the test. Opt-in testing means that the patient is offered testing and it is performed only upon patient consent. The IDOC has large rates of refusal of HIV testing, unlike other similar correctional centers that offer opt-out testing. Opt-out testing generally raises the rates of screening. 177 Administrative Directive 04.03.11 Section5 II. F. 5. d. 178 Mortality Review Patient #22. 179 Smith, S. (2013) Infectious Diseases. In L. Schoenly and C. Knox (Eds.) Essentials of Correctional Nursing. New York: Springer. P. 189. 180 MCC Infection Control Patient #7.

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The IDOC requires a monthly report of communicable diseases and infection control data. This report includes items such as the number of MRSA cases, HIV and HCV tests performed, the number of tuberculin skin tests administered, the use of negative pressure rooms, etc. We found that these reports are submitted to the Quality Improvement Committee (QIC) and included in the monthly minutes. However, there is no trending or analysis of infection control data. There is no discussion in the infection control report or CQI minutes of, for example, why only half of incoming inmates are tested for HIV, given the statewide opt-out policy. A more notable example of the lack of introspection about communicable and infectious disease are three needle stick injuries which occurred in 2017 at Dixon, and the fact that there has been no focused review of these injuries to determine what measures would increase worker safety.
We found numerous examples of poor infection control practices on the part of health care professionals. At all facilities, inmates are not routinely provided eye protection during dental procedures. At NRC, the dentist examined patients without changing gloves between patients and reached into a bag of sterile mirrors to select one for use, contaminating all the other mirrors which were then used on subsequent patients. At SCC, the hemodialysis unit does not have a dedicated chair and technician for dialysis of patients who have hepatitis B, thereby exposing other dialysis patients to this blood borne infection. At NRC and SCC, paper barriers are not available to use on any of the examination tables and they are not cleaned between patients. Finally, the order in which instruments were sterilized was incorrect in four of five facilities we visited. The placement of sterilization equipment and procedures should proceed from dirty to sterilized. At four of five facilities we visited, the placement of the ultrasonic cleaner required clean instruments to pass over the dirty area, thus contaminating their sterilization. At SCC, sterilized instruments were removed from their packages and put in an open bin in the trauma room, making them clean, rather than sterile, instruments. The nursing supervisor could not explain why these instruments were clean rather than sterile.
Inmate porters are assigned to work in the health care areas of each of the five facilities we visited. At only two of the facilities had the inmate porters received training in how to clean and sanitize patient care areas, and how to take personal protective measures before working in the health care area. Only two facilities had vaccinated the inmate porters for viral hepatitis. The assignment of untrained and unvaccinated inmates to clean and sanitize health care areas exposes these inmates as well as patients receiving care to several infectious diseases with potentially serious health consequences, and is deliberately reckless.
Infirmary linens are still laundered in residential style washers and dryers at all the facilities we visited, except NRC. At NRC, a log provided by the institution showed water temperatures were less than the 165°F required by AD 05.02.180 about 30% of the days reviewed. Water temperatures were not hot enough to effectively sanitize laundry from the infirmary at any facility we visited. We also observed furniture and equipment throughout each of the health care areas at every facility we visited that was torn, frayed, rusted, and corroded. These objects, including stretchers, exam tables, stools, cabinets, and work surfaces cannot be properly sanitized and are sources of communicable disease in a setting that treats and cares for patients who are ill, medically fragile, and immunocompromised. While some have been

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Case: 1:20-cv-02093 Document #: 9-9 Filed: 04/02/20 Page 1 of 5 PageID #:334
EXHIBIT 9

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Lippert V Jeffreys Consent Decree First Report of the Monitor November 24, 2019
Prepared by: John M. Raba, MD
Monitor
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Table of Contents
I. Overview ………………………………………….Page 2-3 II. Executive Summary……………………................Pages 3-11 III. Provisions of Consent Decree…………………….Pages 11-48
1. Health Care General Provisions………………Pages 11-22 2. Health Care Specific Provisions………………Pages 22-47 3. Staffing Analysis and Implementation Plan….Pages 47-49
I. Overview
The “Lippert v Jeffreys” Consent Decree was approved and signed by Judge Jorge L Alonso on May 9, 2019. John M. Raba, MD was selected as Monitor for the Consent Decree on March 29, 2019 with his IDOC contract being finalized on April 26, 2019. Provision V.G. of the consent decree states that “Every six months for the first two years and yearly thereafter, Defendants shall provide the Monitor and Plaintiffs with a detailed report containing data and information sufficient to evaluate Defendants’ compliance with the Decree and Defendant’s progress towards achieving compliance, with the Parties and Monitor agreeing in advance of the first report on the data and information that must be included in such report.” From May 20, 2019 through October 18, 2019, the monitor submitted requests on twenty separate dates for forty-three individual reports or categories of documents, data and information. The IDOC attorneys and clinical leadership have supplied the monitor with the majority of the requests with only few requests not yet fully received. On November 2, 2019, the monitor also submitted to the IDOC a more detailed comprehensive request for data and information for each and every provision of the consent decree. This comprehensive request will require a notable commitment of time and resources to compile; this additional data and information will provide a basis for the monitor’s second report that will be due in the Spring of 2020.
Since his appointment, the monitor has had regular meetings with IDOC Chief of Health Services (Agency Medical Director) and Deputy Chiefs of Health Services (Deputy Medical Directors) and regular communications with both the Plaintiffs’ and Defendants’ attorneys. The monitor interviewed the IDOC Director, the IDOC Deputy Director of Program & Support Services, the IDOC Electronic Health Record project manager, clinical and administrative leadership of medical/dental care vendor (Wexford Correctional Health Services), and the Rasho Consent Decree monitor.
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concerned that the Collegial Review process presents a barrier to the access to offsite specialty consultation and tests, delays needed consultations, procedures, and testing, potentially puts patient-inmates’ health at risk, and consumes an significant amount of physician, HCUA, medical records staff, Regional Health Coordinator, Agency Medical Director, and Deputy Chief resources. It is the preliminary opinion of the monitor that the Collegial Review should be eliminated and replaced by a selective utilization review process.
The Consent Decree (III.A.3) states that physicians who are not Board Certified (BC) in Internal Medicine, Family Medicine and Emergency Medicine or have not successfully completed a three residency (Board Eligible) in these three clinical fields shall be reviewed to determine whether they are providing a level of care that is consistent with competent BC and BE physicians. The physician credentials spread sheet provided to the monitor on October 14, 2019 revealed that twelve (34%) of the 35 physicians providing primary care in IDOC facilities had not completed a residency in Internal Medicine or Family Medicine (or Emergency Medicine). Seven of these twelve had been trained in non-primary care fields including Anesthesia, General Surgery, Nuclear Medicine/Radiation Therapy, Pediatrics/Neonatology, Surgery, Pathology, and Radiology. Three had only completed rotating general internships and two had not successfully completed their internal medicine residency programs. Methodology is being developed that would objectively determine whether the quality of care provided by these twelve non-Board Certified or non-Board Eligible physicians is safe and clinically appropriate. It is the opinion of the monitor that it is in the best interest of the IDOC patient population that all physicians providing primary care services in the IDOC should have successfully completed residency training programs in adult primary care fields. The only physician hired since the Consent Decree was approved had successfully completed a residency in Internal Medicine. The monitor is very supportive of the Office of Health Services efforts to establish relationships with the primary care training programs at University of Illinois at Chicago Medical Center and the Southern Illinois University School of Medicine that could assist IDOC with delivery of primary care and with future recruitment and retention of physicians with Board Certification or Board Eligibility in Internal Medicine or Family Medicine.
Data sheets provided to the monitor on August 6, 2019 documented that 7,265, nineteen percent (19%) of the IDOC were fifty years of age or older, nearly one thousand (2.6%) were between 65 and 79 years old and 61 were older than eighty years of age. The aging population in the IDOC is placing an increasing burden on the functioning of the correctional facilities and on the correctional health care
9

CasCea: s1e:1: 01-:c2v0--0c4v6-00230D93ocDuomceunmt e#n: t1#2:796-9FiFleilde:d0: 10/41/30/22/020PaPgaege105 ooff 459PPaaggeeIDID##:3:1378248
system. Men and women with various types of dementia, cerebrovascular accidents (CVA), advanced cancers, cardiovascular disease, and increasing fragility with risk of falls are housed in many of the IDOC facilities. The infirmaries are becoming filled with patient-inmates who are confused, incontinent, and require assistance with the basic activities of daily living including dressing, feeding, bathing, and toileting. The final staffing analysis will include significant augmentation in nursing personnel and support staff; many of whom will be assigned to infirmaries and geriatric units. The health care and correctional resources including staff, physical space, equipment, onsite support services and offsite specialty consultation, diagnostic testing, and hospitalization required to meet the needs of this aging population is staggering and will only increase if there is not a concerted and strategic effort to comprehensively address this situation. It is the position of the monitor that in the short term additional IDOC resources must be directed to properly house and care for this population but in the near future the IDOC must take the lead to create a pathway to discharge those men and women whose mental and medical conditions make them no longer a risk to society to appropriate settings in the community. This effort will need to include the judicial system, parole boards, influential advocacy groups, state legislatures, the governor’s office, and other entities. It is also the monitor’s position that the IDOC should not attempt to construct large long-length-of-stay skilled nursing or nursing home correctional facilities which would present notable difficulties to meet and maintain state certification standards.
The monitor will be asking the Plaintiffs’ and the Defendants’ legal counsel to modify three sections of the Consent Decree.
1) Provision III.M.2.b: “Federal Bureau of Prisons” should be replaced with “Center for Disease Control Adult Immunization Guidelines”. The Federal Bureau of Prisons’ (FBOP) immunization guidelines are generally aligned with the Center for Disease Control (CDC) guidelines but the FBOP policies are only changed at some length of time after the CDC updates its recommendations. 2) Provision III M. 2.c: The language on the Prostate Specific Antigen (PSA) testing is no longer consistent with the national guidelines and needs to be modified to be in alignment with the recommendations of the United States Preventive Services Task Force (USPSTF) which now recommends that men between the ages of 55 and 69 years be informed of the potential harms and benefits of the PSA testing and allowed to make an individual decision about their preference. Men should not be screened who do not express a preference for PSA screening. Give that national recommendations will invariably change as more research is performed, it
10

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EXHIBIT 10

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EXHIBIT 11

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 2 of 10 PageID #:343
Declaration of Amy Cochran
I, Amy Cochran, declare as follows:
1. My date of birth is 8/20/1973 and I live at 14116 Rising Spring Road, Haslet, TX 76052.
2. My son, Brice Mixon was born on 6/9/1998 and is confined at Shawnee Correctional Center. He has been incarcerated since August 2018.
3. Brice has severe asthma and has almost died twice from asthma attacks. He also has a compromised immune system. He has struggled with these health issues for his whole life and has been in and out of the hospital since he was a baby.
4. I usually speak with Brice every day. The last time that I spoke with him was last night, Monday, March 31st at around 8:00 PM. I hadn’t heard from him for one or two full days and I was worried about him. He is on minimum security and usually is able to be out of his cell for two hours each day, but lately he has only been able to get out for 30 minutes every day to use the shower and make phone calls.
5. During my conversations with Brice, I have learned the following about conditions inside. Brice has a cellmate who is sick. His cellmate has had a cough and shortness of breath for several weeks. I have been very concerned about this and have been in touch with IDOC to ensure that my son is safe. I learned from my son that they have been coming to take the temperature of his cellmate and they gave him some sort of medicine, but they haven’t actually tested him for COVID-19.
6. Brice has been able to purchase hand sanitizer from the commissary. Hand sanitizer is only available for purchase and is not being provided to every inmate. Brce has not been able to purchase antibacterial soap from the commissary.
7. Brice has not been given any type of personal protective equipment to keep him safe. He has not been given a mask or gloves.
8. The facilities at Shawnee are very dirty. Brice tries to keep his cell clean, but the facilities outside of his cell are not sanitary. Brice describes the conditions as being like hell. He was in Stateville for a few weeks and the conditions were even worse there. He said that it was like a dungeon.
9. After not receiving any medical care for a long time, Brice was finally able to get an inhaler, which has helped with the symptoms of his asthma. He is able to use the inhaler every day, but he doesn’t have an emergency inhaler.
10. Brice has not been able to access any of the programs at Shawnee. He has been on the waiting list for almost a year, but he has not been able to get in because the higher risk inmates are getting placed in the programs before him. He was convicted of a cannabis sale charge, and has had a perfect record in prison with no infractions. Every time they

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 3 of 10 PageID #:344
look at him for good time credit or early release he is denied because he is rated as too high-risk. He has also been denied transfer because he was too high risk. He is stuck in this cycle where he can’t get into programs because he is only a first time offender and isn’t high risk enough, but he can’t get released or transferred because they say he is too high risk.
11. IDOC and Shawnee are not considering how at-risk he is because of his chronic health issues, they are just looking at his prior arrest record and saying that they won’t let him out.
I declare under penalty of perjury that the forgoing is true and correct.
Amy Cochran (signed electronically)

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 4 of 10 PageID #:345
Declaration of Carla Felton
I, Carla Felton, declare as follows:
1. My name is Carla Felton and my date of birth is 6/21/1980.
2. My significant other, Carlvosier Smith (R40476, born on 12/11/1979) is confined in Stateville Correction Center. He goes by Carl. He has been incarcerated for seventeen years.
3. I generally speak with Carl every day. Over the past two weeks I have been able to continue speaking with him daily. I spoke with him last night (Monday, March 31st) as well as this morning.
4. During those conversations, I learned the following about conditions inside. I became concerned about the coronavirus epidemic around March 1st, because I work in healthcare and saw how we were preparing to respond to something really big. At that time I asked Carl what Stateville was doing to prepare for the coronavirus and he told me that nothing was being done.
5. I became very concerned about Carl when I spoke with him on March 23rd. He told me that he had a fever and was feeling really sick. He went to the nurse but wasn’t tested for coronavirus and now he’s locked down in his cell.
6. Since I speak with him daily and I work in the medical field, I decided to do an exposure screening with him over the phone. He would respond “yes” to many of the questions that I asked, indicating that he was experiencing a fever, shortness of breathing had headaches, and a stuffy nose. He also said that he was having a hard time tasting food, which was very concerning because that is a symptom of the virus. I asked him to do a breathing exercise where he held his breath for 10 seconds, and he was able to, but he told me that the breathing difficulties have made it hard for him to sleep.
7. Carl told me that in his seventeen years of being in prison he has never experienced a situation where so many people are sick. There are 300-400 people on his deck and it seems to him like almost everyone is sick.
8. Carl has a cellmate and he told me that it is impossible to do adequate social distancing because of how small the cell is. They are trying to keep their distance from each other and keep their cell clean.
9. He has not been given hand sanitizer or antibacterial soap. They just have cleaning supplies to keep the cell clean. They have not been given any kind of personal protective equipment. They do not have masks or gloves.
10. When I spoke with Carl last night his anxiety was really high because of the way that the prison is responding to the virus and because so many people are getting sick.

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 5 of 10 PageID #:346
11. When I spoke with him today he told me that he was feeling better, but the nurse told him that she is still concerned about him but can’t test him for coronavirus because they don’t have tests. I know that one of the things that helps with symptoms is drinking or eating hot things because of how it breaks up the mucus, but he isn’t able to access hot foods or beverages that could help.
12. I have known Carl for a very long time. Our parents went to grammar school together and our families are very close. He is my family. I am experiencing so much anxiety, I feel defeated, and I just don’t know what to do. I am trying to balance working, taking care of my child, and doing everything that I can to make sure that Carl is OK. Illinois needs to stop putting incarcerated people at the very bottom of the totem pole and needs to ensure their health and safety like they are trying to do with everyone else.
13. Illinois can stop the spread of the virus by letting people out of prison who don’t belong there anymore. People who have been inside for a long time have been able to make connections, get training, go to school, and develop skills so that they can be productive when they leave.
I declare under penalty of perjury that the forgoing is true and correct.
Carla Felton
(signed electronically)

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 6 of 10 PageID #:347
Declaration of Kaye Thomas
I, Kaye Thomas, declare as follows:
1. My name is Kaye Thomas. My date of birth 9/2/1971. My current address is 2412 W. Kirby Ave. Champaign, IL, 61821.
2. I am Luther Thomas’s Wife. Luther’s date of birth is 03/29/1979 and his IDOC number is K78764. Luther is currently confined at Big Muddy River Correctional Center. Luther has been at Big Muddy River Correctional Center since September, 2019 and various other prisons within IDOC since April 1999, wrongfully convicted.
3. I normally speak with Luther between 10-20 times a week. Over the last two weeks, I spoke with Luther between 2-5 times. The last time I spoke to Luther was April 1, 2020.
4. During those conversations, I learned the following about the conditions at Bid Muddy. a. Everyone is “quarantined” in their cells with their cell mates for the entire day, except for the thirty minutes they are allowed to leave their cells. To my knowledge, they have been “quarantined” for the last two or three weeks. Because of the close, crowded quarters, there is effectively no way for Luther, or any of the other men, to socially distance to protect themselves from COVID-19. b. To my knowledge, there has been no inmate testing done at Big Muddy for COVID-19. c. Inmates at Big Muddy do not have access to masks or personal protective equipment. To my knowledge, no guards are wearing masks. d. The prison has not provided the inmates access to hand sanitizer. e. Luther does not have access to hand sanitizer or any other protective equipment like masks or gloves.
5. Luther is worried and stressed of what will happen with COVID-19. Everyone is worried about their families and their own health. Luther has told me that several of the men there already suffer from depression and post-traumatic stress disorder (PTSD) and that the uncertainty and lack of information with COVID-19 is exacerbating their stress. Everyone is struggling from this ongoing trauma. Luther and other prisoners are able to watch the news, but do not know how or if they will be able to protect themselves.
6. I am unable to sleep because of anxiety and constant worry about Luther’s wellbeing at Big Muddy and other family members within IDOC. Something has to be done, people’s lives are at stake.
7. If Luther were to be released, he would have a safe place to live with me.
I declare under penalty of perjury that the forgoing is true and correct. Kaye Thomas (signed electronically)

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 7 of 10 PageID #:348
Declaration of LaTonya Jenkins-Lucas
I, LaTonya Jenkins-Lucas, declare as follows:
1. My name is LaTonya Jenkins-Lucas. My date of birth 1/28/1971. My current address is 446 E. 46th Street, Apt. B, Chicago, IL, 60653
2. I am Frank Sykes’s mother. Frank is currently confined at Stateville Correctional Center. Frank has been at Stateville since October 2019.
3. Frank was born with sleep apnea and asthma. When he was born, he was on a breathing and heart monitor for six months. His ability to play sports as a child was severely restricted because he did not have the lung capacity to participate. Whenever Frank gets a cold, it hits him harder than it hits my other children. I am very worried about his respiratory system in light of COVID-19.
4. I speak with Frank between four to five times a week. Over the last two weeks, I spoke with Frank between eight to ten times. The last time I spoke to Frank was April 1, 2020.
5. During those conversations, I learned the following about the conditions at Stateville. a. Everyone is “quarantined” in their cells with their cell mates. They are not allowed to leave to go outside or get fresh air. To my knowledge, they have been “quarantined” for the last ten days. Because of the close, crowded quarters, there is effectively no way for Frank, or any of the other men, to socially distance to protect themselves from COVID-19. b. Because Frank has an upcoming release date, Stateville staff told him that he cannot get access to personal hygiene items. Because of this, Frank recently called me to ask me to put money in a different inmate’s commissary so he could buy some soap. He is not able to purchase personal hygienic items on his own commissary. c. Frank does not have access to hand sanitizer or any other protective equipment like masks or gloves. On April 1, 2020, they started handing out some material that they are calling “masks” but are not actual masks. d. Within the last few days, the guards have started to wear masks. Before, it did not appear that the virus was being taken seriously.
6. Frank has told me he is afraid of what will happen with COVID-19. The community at Stateville is terrified. Everyone is afraid. Everyone is on edge. The men at Stateville are afraid because there is nowhere to hide from the virus.
7. If Frank were to be released, he would have a safe place to live with me.
I declare under penalty of perjury that the forgoing is true and correct. LaTonya Jenkins-Lucas (signed electronically)

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 8 of 10 PageID #:349
Declaration of Oholibamah Clark
I, Oholibamah Clark, declare as follows:
1. My name is Oholibamah Clark. My DOB is 4/30/1970. My current address is 7410 N. Damen, Apt. 2, Chicago, IL, 60645.
2. I am Duane Moore’s fiance. Duane is currently confined at Dixon Correctional Center since January 2020. Duane’s DOB is 12/26/1986, and his IDOC# is 50637.
3. Duane has high blood pressure that developed while he was incarcerated. He is losing a lot of weight right now and is on medication for his high blood pressure. He has constant headaches and does not have an appetite.
4. I generally speak with Duane daily, usually twice a day when he gets access to the phone. During the past two weeks I’ve spoken to Duane almost every day. The last time we spoke was on March 31, 2020.
5. During those conversations, I learned the following about the conditions at Dixon. a. Since COVID-19 has spread in Illinois, the guards have become more aggressive in how they treat and speak to Duane and other inmates b. Because of the pressures imposed by COVID-19, the guards have started to ignore requests from inmates at Dixon. c. Duane has access to the showers twice a day when he is let out of his cell. d. There is no free access to hand sanitizer: Duane must purchase it at the commissary. The small container of hand sanitizer is expensive. e. Duane shares a cell with his cellmate, making social distancing impossible. The only effort the facility that I am aware of is that they are only letting 10 inmates out at a time. f. Duane has no access to Personal Protective Equipment (PPE). He told me that inmates are not allowed access to PPE unless they are in the kitchen. g. The guards are only wearing gloves, but are not wearing masks to protect against the transmission of COVID-19. h. The people incarcerated at Dixon are feeling very worried about the spread of COVID-19. People do not know what is happening with the transmission of the virus. People are also getting more easily agitated because they are locked up for so much longer than usual, making the units feel very chaotic.
6. If Duane were to be released, he would have a safe place to live with me.
I declare under penalty of perjury that the forgoing is true and correct.
Oholibamah Clark (signed electronically)

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 9 of 10 PageID #:350

Declaration of Sharon Gray I, Sharon Gray, declare as follows:

1.

My name is Sharon Gray. My DOB 8/1/61.

2.

I am John Shores’s mother. John is currently confined at Hill Correctional Center since

about October or November 2019. John’s DOB is 3/14/82, and his IDOC number is

R34916.

3.

John Shores is currently physically feeling fine. John has not experienced any health

concerns as of March 31, 2020 when he last spoke to me.

4.

I speak with John every other day when he gets access to the phone. During the past

two weeks, I spoke with John at about this frequency. I spoke with John on March 31,

2020 and before that on March 29, 2020.

5.

During these conversations, I learned the following about the conditions inside Hill

Correctional Center.

a. I’ve learned that there have been little changes at Hill Correctional facility, John

told me it is basically “business as usual.” The changes that John has mentioned

was the withholding of in-person visitation and that he no longer is doing his job

because of some of the restrictions on the freedom of movement.

b. John, like the others in custody there, are not able to access extra hygienic materials.

He does not have access to hand sanitizer or masks. None of the inmates have access

to masks. Porters are given cleaning supplies typically and are still receiving those

cleaning supplies. The correctional officers are also not wearing masks, but are

wearing gloves.

c. Social distancing is not possible and has not been enforced. John shares a small cell

with a cellmate and they sleep in bunk beds, making effective social distancing

impossible. Though John has not experienced any symptoms, he told me that if he

were to get sick, there would be no ability to separate himself from others.

d. John told me that the officers tried to separate the older inmates from the younger

people, but that the younger people are also getting sick. No one knows what kind

of sickness people are experiencing, some have flu-like symptoms.

e. John shared that he is extremely scared because he does not have any information

about what is happening at Hill. He knows that if one the guards bring the virus in,

that they will not be able to protect themselves from it. John called the entire prison

community “on edge” and terrified. The community knows that all it takes is one

infection to infect the prison.

6. If John were to be released, he would have many options of safe places to stay, including with me in Indiana, but also with other family in Illinois.

I declare under penalty of perjury that the foregoing is true and correct. Sharon Gray (signed electronically)

Case: 1:20-cv-02093 Document #: 9-11 Filed: 04/02/20 Page 10 of 10 PageID #:351
Declaration of Beverly Bennett I, Beverly Bennett, declare as follows:
1. My name is Beverly Bennett. My date of birth of 10/26/1972. My current address is 3440 W. Marquette Rd Chicago, IL 60629.
2. I am the mother of Jamal Bennett who is an inmate at Centralia Correctional Center. His date of birth 01/04/1989.
3. Jamal has had asthma since 2005 and needs to use an inhaler in when he is in stressful environments.
4. I speak with Jamal on a daily basis and the last time we spoke was yesterday on March 31, 2020.
5. During our conversations, I learned the following information: a. Jamal does not have a cellmate, but for those who do, practicing social distancing is very difficult. b. Jamal is provided with soap, but there is not enough hot water and hand sanitizer is not provided to the prisoners. Officers wear masks and gloves, but they are not given to prisoners or residents. c. Jamal does have access to staff and medical personnel and can get assistance if needed, however, he does limit his complaints because he is concerned about retaliation. d. Jamal says that everyone is very scared and nervous about COVID-19 and as a result, the environment is very tense. Prisoners are concerned about the lack of social distancing, which has caused much agitation and more verbal conflicts.
6. If Jamal was released, he would be able to stay with me.
7. I do want my name to be in a legal document that would be in support of releasing people from IDOC custody.
I declare under penalty of perjury that the forgoing is true and correct, Beverly Bennett (signed electronically)

 
 Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 1 of 40 PageID #:412

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

JAMES MONEY, et al.,

Plaintiffs,
v. Honorable Steven C. Seeger J.B. PRITZKER, et al.,
Defendants.

No. 20-C-2093 (Also filed in case no. 20-C-1792)
Honorable Robert M. Dow, Emergency Judge

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

The Court and the public need only watch Governor Pritzker’s daily press

briefing, or review the websites of the Illinois Department of Corrections, the Illinois

Department of Public Health, and any number of other state offices and agencies, to

see that the Governor, the Department, and the State have implemented immediate

and drastic steps to address the COVID-19 public health emergency to protect all

Illinois citizens, including those incarcerated in state prisons.1

This response in opposition to plaintiffs’ emergency motion will address in

detail the fundamental legal flaws with plaintiffs’ claims and why they do not—and

cannot—support the immediate release and transfers to their homes that plaintiffs

seek. First and foremost, however, given the unprecedented public health emergency

1

A court may take judicial notice of “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 reasonably be questioned.” Fed. R. Evid.

201(b); see also Hill v. Capital One Bank (USA), N.A., No. 14-CV-6236, 2015 WL 468878, at *5 (N.D.

Ill. Feb. 3, 2015) (citing Denius v. Dunlap, 330 F.3d 919, 926 (7th Cir. 2003) (noting that contents of

government websites are a proper item of which to take judicial notice)).

Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 2 of 40 PageID #:413
taking place throughout the country, and as the Court expressly requested (see Dkt. 14, directing defendants “to give special attention to explaining exactly what measures, if any, are currently being taken in Illinois ‘to protect people in prisons from the impending spread of COVID-19 by releasing people in an effort to reduce populations’”) the Governor and the Acting Director (the “Director”) detail below the actions they have taken and continue to take to ensure the safety of those incarcerated in the Department of Corrections.
The Governor issued a disaster proclamation on March 9, 2020, four days before the federal government announced a national emergency.2 The Department of Corrections followed immediately by enacting strict measures, consistent with CDC guidelines,3 to protect those who are housed and work in Illinois prisons. These actions include adoption of a pandemic response plan consistent with CDC guidance (including a separate plan specific to Stateville), enhanced screening and testing for COVID-19, increased hygiene and sanitation, new limits (and now a prohibition) on outside visitors, and increased separation of prisoners through an administrative quarantine.4 And well before plaintiffs filed this action, defendants were already

2

Dkt. 1 ¶ 20, citing Gubernatorial Disaster Declaration.

3

CDC, Coronavirus Disease 2019 (COVID-19): Guidance

https://www.cdc.gov/coronavirus/2019-ncov/communication/guidance-

list.html?Sort=Date%3A%3Adesc.

Documents,

CDC,

4

CDC, Coronavirus Disease 2019 (COVID-19): Interim Guidance on Management of

Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC,

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-

detention.html; see also COVID-19 Response, Illinois Department of Corrections,

https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited Apr. 5, 2020).

2

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systematically reviewing prisoners, including the groups identified in the complaint,
to determine who could be released safely under Illinois law.
Although the Court need not look beyond plaintiffs’ pleading to reject their
request for emergency relief, the Court can take judicial notice of the facts showing
that over the past several weeks, defendants’ unprecedented and extraordinary
measures to mitigate the risk of COVID-19 in Illinois prisons include the following:
 As plaintiffs admit (Dkt. 1 ¶ 73; Dkt. 9 at 27), the Governor has suspended admissions of new prisoners from all Illinois county jails, with limited exceptions at the sole discretion of the Director. Executive Order 2020-13;5 see also Executive Order 2020-18 (extending Executive Order 2020-13 through April 30, 2020).6
 Plaintiffs also admit the Governor has activated the Illinois National Guard to provide additional medical support at Stateville. Dkt. 1 ¶¶ 91; Dkt. 9 at 48.
 The Governor is continuing to review and grant commutation petitions.7
 The Department created a population management task force, which includes members from the Prison Review Board, solely for the purpose of prioritizing the review of individuals for possible release through statutorily permissible means.
 As of April 6, 2020, the Department has released approximately 450 prisoners through various forms of sentence credit, restoration of credit,

5

Pritzker, Governor J.B., Executive Order 2020-13 (Mar. 26, 2020),

https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-13.pdf.

6

Pritzker, Governor J.B., Executive Order 2020-18 (Apr. 1, 2020),

https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-18.pdf.

7

For example, on March 30, 2020, Thomas Franzen, a 37-year-old cancer patient was released from

Stateville to his Sugar Grove home to serve 2 years of parole. He was serving a 4-year sentence for

possession of >5,000 grams of marijuana. https://www.dailyherald.com/news/20200331/cancer-

patient-serving-4-years-for-thc-chocolates-out-of-prison-thanks-to-governor.

3

Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 4 of 40 PageID #:415

and electronic detention.8 The Department has provided an additional 65 furloughs since the creation of the population management task force.

 Between March 2 and April 6, 2020, the Department reduced its population by more than 1,000 prisoners.9

 The Department is continuing to award up to 180 days of Earned Discretionary Sentencing Credit (EDSC) for eligible offenders pursuant to 730 ILCS 5/3-6-3(a)(3). The sentencing credit is within the sole discretion of the Director, but must be based on the results of a risk or needs assessment, circumstances of the crime, any history of conviction for a forcible felony, the offender’s behavior and disciplinary history, and the inmate’s commitment to rehabilitation, including participation in programming. Id. The Director is prohibited from awarding discretionary sentencing credit to any inmate unless the inmate has served a minimum of 60 days. Id.

 On April 6, 2020 (today), the Department filed an emergency rule change to amend the Administrative Code, 20 Ill. Admin. Code § 107.20, to relax the award of Earned Disciplinary Sentence Credit (EDSC) for those with 100-level disciplinary tickets.

 The Department is continuing to identify offenders within nine months of their release date and conducted individualized reviews to determine whether they are eligible for early release. The review requires staff to examine an offender’s file for disciplinary history, commitment to rehabilitation, and criminal history. Offenders with forcible felonies, violent criminal histories, significant disciplinary issues, and outstanding warrants are not approved for the sentencing credit. The Department continues to generate a list of offenders every week and continues to conduct daily reviews of these offenders’ files.

 The Department is continuing to review revocation of good conduct credit and has restored sentence credit where appropriate.

 The Department is continuing to place offenders on electronic monitoring or home detention pursuant to 730 ILCS 5/5-8A-3. The Department has

8

Id. at 6:54-8:06; see also @IDOC_Illinois, TWITTER (Apr. 4, 2020, 2:50 PM),

https://twitter.com/IDOC_Illinois/status/1245800734651752450; @IDOC_Illinois, TWITTER (Apr. 5,

2020, 4:00 PM), https://twitter.com/IDOC_Illinois/status/1246905474013966338.

9

This number was 1,069 (since February 1, 2020) as of Governor Pritzker’s March 31, 2020

press briefing. See Pritzker, Governor J.B., IDPH, COVID-19 Press Update Video, at 5:34-6:07 (Mar.

31, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-

z-list/coronavirus/media-publications/daily-press-briefings.

4

Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 5 of 40 PageID #:416

already placed 16 of 21 pregnant and postpartum offenders on home detention, and is now concentrating its efforts on those who are 55 years or older, have served at least 25% of the sentence and are within 12 months of release.10 Although this category is permitted under 730 ILCS 5/5-8A-3(d), the Department must conduct individual assessments to ensure placement outside of a secure facility is appropriate.11
 To allow for faster releases of prisoners, the Governor has suspended the required 14-day notification to State’s Attorneys for inmates released early as a result of earned sentence credit for good conduct. Executive Order 2020-11;12 see also Executive Order 2020-18 (extending Executive Order 2020-11 through April 30, 2020).13
 To provide greater flexibility for the use of medical furloughs, on April 6, 2020, the Governor filed an additional Executive Order (EO 2020-21) to suspend the 14-day limit for medical furloughs and allow furloughs for medical purposes at the Director’s discretion and consistent with the guidance of the Department’s medical director.
 The Prisoner Review Board continues to conduct daily hearings by telephone and video conference to set the conditions of mandatory supervised release for all individuals pending release.
 The PRB has notified those affected by the cancellation of the April 2020 clemency docket and new dates are being secured. The PRB is also notifying affected parties that they can request to convert to a non-public hearing, which could be heard based upon the paper submissions, if all affected parties agree. In addition, the PRB continues to conduct informational interviews of incarcerated petitioners by videoconference as usual, and the July docket is still set to proceed as planned at this time.
 The PRB continues to conduct release revocation hearings. As always, each case is reviewed on an individual basis, with consideration of the facts and circumstances of each alleged violation or set of violations, including the protection of victims, the safety of those in the State’s custody, and the

10

IDPH, COVID-19 Press Update Video, at 6:54-8:38 (Mar. 31, 2020), available at

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

list/coronavirus/media-publications/daily-press-briefings.

11

Id.

12

Pritzker, Governor J.B., Executive Order 2020-11 (Mar. 23, 2020),

https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-11.pdf.

13

Pritzker, Governor J.B., Executive Order 2020-18 (Apr. 1, 2020),

https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-18.pdf.

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Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 6 of 40 PageID #:417
overall public health concerns currently facing the State. The PRB is also taking into account the nature of the current extraordinary circumstances in all cases as a result of COVID-19, while recognizing that each decision must be made with the goals of protecting public safety and safely and restoring releasees to productive lives.
 The Governor’s Office is working with outside groups such as the SAFER Foundation and TASC to identify and secure safe host sites and provide wrap-around services to support potential releases.
 Lt. Governor Julia Stratton, along with the SAFER Foundation, has developed the Prison Emergency Early Release Response (PEERR) team. The PEERR team is a coordinated effort to facilitate the successful reentry of people leaving our state prisons and returning to Cook County. The PEERR team is currently developing a referral network of human services, healthcare, housing, and reentry providers that are open for business, whether in person or remotely, and have capacity to deliver services to people being released from IDOC custody. These services may include food, clothing, financial assistance, telehealth substance use and mental health services, physical healthcare, medication continuity, employment services, and housing.
 The Governor and the Director continue to monitor these efforts, and the Department continues to make necessary changes as the situation evolves.
These are the actions of officials who are responding quickly and aggressively
to combat COVID-19—actions that are the opposite of deliberate indifference.
Plaintiffs nevertheless assert the bald conclusion that the Governor and Director
have not acted with sufficient “urgency or decisiveness” and have “failed to take
reasonable measures” to reduce the prison population “substantially” to their
satisfaction. Id. ¶¶ 74, 111. These allegations do not present a plausible claim for
deliberate indifference, let alone a claim with any likelihood of success.
Plaintiffs’ motion should be denied, not only because they cannot show a
likelihood of success on the merits in light of their inability to surmount the many
procedural and substantive legal hurdles discussed below, but also because plaintiffs’
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alleged “possibility” of harm, see Dkt. 9 at 64, does not outweigh the definite harm to the State and the public if the Court were to order the immediate release of the thousands of prisoners in plaintiffs’ proposed subclasses 1 and 2. Plaintiffs’ request that they and the Court substitute their own judgment for the Department’s in determining who may be safely released from prison and on what conditions, is neither responsible nor in keeping with the public interest. This is particularly so here, where the Department is already evaluating prisoners for whether they can be released without undue risk to public safety and whether each prisoner would have suitable housing if released.
Critical decisions about the release of prisoners are committed to the State and its officials; they are in the best position to weigh how to manage the prison population and balance the safety of prisoners, prison staff, and the public. For that reason, federal law restricts the authority of federal judges to order prisoner releases. The Prison Litigation Reform Act does not allow it except when ordered by a designated three-judge panel, and even then only after a court has already entered less intrusive relief addressing the same problem. These PLRA requirements defeat plaintiffs’ case.
Supreme Court precedent also bars prisoners from using a § 1983 action to seek a “quantum change” in their conditions of confinement. By seeking immediate release from prison, plaintiffs are seeking the kind of quantum change that is not allowed.
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And while prisoners may sue to protect themselves from cruel and unusual punishment, a right protected by the Eighth Amendment, they must allege and ultimately prove that prison officials are “deliberately indifferent” to a recognized risk that those prisoners face substantial harm. Plaintiffs’ pleading does not plausibly show that the Governor or the Director have been deliberately indifferent to the risks posed by COVID-19. Plaintiffs do not allege the kind of subjective indifference— amounting to criminal recklessness—to sustain a plausible claim under the Eighth Amendment. That claim is particularly specious here, where it is clear that defendants not only recognize the risk of harm to prisoners and prison staff from COVID-19, but have also taken and continue to take immediate and significant actions to address that risk. Plaintiffs likewise do not present a plausible claim giving them a likelihood of success under the ADA. They do not plausibly allege to be “qualified” under the ADA, nor do they plausibly allege any discrimination against them by reason of any claimed disability
There is no question that COVID-19 poses unprecedented risks to the health of all citizens, including prisoners. And while courts may issue temporary emergency relief in appropriate cases, the Court cannot do so here, where the underlying legal claims lack a likelihood of success and where the requested relief—here an unprecedented mandatory immediate prison release of as many as 16,000 convicted felons—is manifestly against the State’s and the public’s interests.
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BACKGROUND Plaintiffs are ten individuals convicted of a range of felonies, including aggravated kidnapping and murder. None claim to have COVID-19. Two of them (Gerald Reed and Patrice Daniels) are housed at facilities (the Stateville Northern Reception Center [NRC] and the Joliet Treatment Center, respectively), where someone on staff (no prisoners) allegedly tested positive for COVID-19. Dkt. 1 ¶¶ 71, 95, 101. Only one of those plaintiffs, Gerald Reed, is a member of the proffered subclasses 1 and 2 seeking a release through the requested “temporary restraining order.”14 Dkt. 9 at 1–2. The complaint defines subclasses 1 and 2 to encompass those who, based on their age or medical condition, are “eligible for medical furlough pursuant to 730 ILCS 5/3-11-1,” Dkt. 1 ¶ 103(a) & (b). By plaintiffs’ math, these two groups constitute approximately 16,000 prisoners. Dkt. 1 ¶ 105. Plaintiffs base their requested relief, which they characterize at times as either a temporary restraining order or a preliminary injunction, e.g., Dkt. 9 at 1–2, 38 (it is more akin to a preliminary injunction), on two legal claims: Count I alleging deliberate indifference in violation of the Eighth Amendment, and Count III alleging a violation of the ADA. Id. at 40. As discussed below, plaintiffs are not likely to succeed on either claim.15

14

Daniels is 45 years old and does not identify any medical vulnerability. Dkt. 1 ¶ 101. Seven of

the named plaintiffs (Money, Richard, G. Reed, Green, Labosette, C. Reed, and Tate) claim to be in

subclasses 1 and/or 2 seeking immediate release from prison based on their age and/or medical

condition.

15

Although plaintiffs are not seeking emergency relief based on their procedural due process

claim in Count II, that claim also has no likelihood of success on the merits because plaintiffs lack

any liberty or property interest in being granted a furlough or home detention. As discussed more

fully in Respondent’s Response to Emergency Petition for Writs of Habeas Corpus in case 2094, the

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ARGUMENT The standards for deciding whether a temporary restraining order is appropriate are “analogous to the standards applicable when determining whether preliminary injunctive relief is appropriate.” YourNetDating, Inc. v. Mitchell, 88 F. Supp. 2d 870, 871 (N.D. Ill. 2000). Injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998) (same); see also Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 389 (7th Cir. 1984). To obtain a temporary restraining order or preliminary injunction, plaintiffs must make a clear showing 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) that the injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010). Additionally, the court “must balance the competing
courts have consistently held that a statute providing for release from prison to a less restrictive form of custody (such as parole or, here, home detention) does not create a liberty or property interest unless the statute contains “‘explicitly mandatory language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow.” Ky. Dept. of Corr. v. Thompson, 490 U.S. 454, 463 (1989) (emphasis added); see also Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006) (“It takes mandatory language (and thus an entitlement contingent on facts that could be established at a hearing) to create a liberty or property interest in an opportunity to be released on parole.”). Here, the Illinois home detention and medical furlough statutes are discretionary. See 730 ILCS 5/5-8A-3 and 730 ILCS 5/3-11-1. Therefore, petitioners have no liberty or property interest in home detention and Count II is meritless. See, e.g., Thompson, 490 U.S. at 463; Grennier, 453 F.3d at 444.
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claims of injury and must consider the effect on each party of granting or withholding the requested relief,” paying “particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.
Plaintiffs’ burden in this case is even greater than usual because, rather than seeking to preserve the status quo, they seek mandatory interim relief directing the certification of their proposed subclasses 1 and 2, and directing defendants to release approximately 16,000 offenders. See Dkt. 1 ¶ 105. Mandatory injunctions are “rarely issued,” interlocutory mandatory injunctions are “even more rarely issued,” and neither should be issued “except upon the clearest equitable grounds.” W.A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958); see also Graham v. Med. Mut. of Ohio, 130 F.2d 293, 295 (7th Cir. 1997) (“mandatory preliminary writs are ordinarily cautiously viewed and sparingly issued”); Chicago United Indus. v. City of Chicago, 445 F.3d 940, 945–46 (7th Cir. 2006).
Besides seeking mandatory relief, plaintiffs in subclasses 1 and 2 also seek to obtain a temporary restraining order or preliminary injunction that would give them substantially all the relief they seek through this lawsuit. That makes plaintiffs’ burden even higher. See, e.g., Boucher, 134 F.3d at 827 n.6 (“A preliminary injunction that would give the movant substantially all the relief he seeks is disfavored, and courts have imposed a higher burden on a movant in such cases.”); W.A. Mack, 260 F.2d at 890 (“A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree.”).
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Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 12 of 40 PageID #:423
Plaintiffs’ motion should be denied not only because they cannot show a likelihood of success on the merits in light of their inability to surmount the multiple procedural and substantive legal hurdles discussed below, but also because they have not demonstrated that the possible harm they face from COVID-19 outweighs the State’s and the public’s interests. The Court also should reject plaintiffs’ request to provisionally certify subclasses 1 and 2. I. Plaintiffs Are Unlikely to Succeed on the Merits.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits.” Winter, 555 U.S at 20. To meet their initial burden, plaintiffs must show that they have a “better than negligible” chance of success on the merits. Roland Mach. Co., 749 F.2d at 387. Where it is more likely than not that a defendant will prevail, injunctive relief is improper, particularly where the balance of harms tips decidedly in favor of the defendant. See Boucher, 134 F.3d at 826–27, 829 (vacating preliminary injunction as to expelled high school student). Even if a plaintiff makes the required showing, the court must determine how likely it is that the plaintiff actually will succeed: “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., 749 F.2d at 387. Moreover, when there are “two equally credible versions of the facts the court should be highly cautious in granting an injunction without the benefit of a full trial.” Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1440 (7th Cir. 1986) (citation omitted).
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Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 13 of 40 PageID #:424
The Court can and should deny plaintiffs’ motion based on several procedural bars that defeat plaintiffs’ claims, even before addressing their failure to plead plausible Eighth Amendment and ADA claims.
A. The PLRA, Heck, Rizzo Abstention, and Plaintiffs’ Failure to Exhaust their Administrative Remedies Give Plaintiffs No Likelihood of Success. 1. The Prison Litigation Reform Act bars this Court from ordering plaintiffs’ release from prison under the guise of medical furloughs.
At the outset, plaintiffs have no likelihood of success on the merits because the Prison Litigation Reform Act does not allow this Court to grant the releases and transfers to their homes that plaintiffs seek.
The PLRA is principally codified at 42 U.S.C. § 1997e, but it also encompasses the provisions of 18 U.S.C. § 3626 concerning appropriate prison condition remedies. See Davis v. Streekstra, 227 F.3d 759, 761 (7th Cir. 2000); Berwanger v. Cottey, 178 F.3d 834, 836 (7th Cir 1999). Although § 3626 of the PLRA allows federal courts in limited instances to issue a “prisoner release order,” § 3626(a)(3)(A) unequivocally provides that “no court shall enter a prisoner release order unless—(i) 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 (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A); see also U.S. v. Cook County, Illinois, 761 F. Supp. 2d 794, 796 (N.D. Ill. 2011). Section 3626 also mandates that a prisoner release order may be entered “only by a three-judge court,” and “only if the court finds by clear and convincing evidence that—(i) crowding is the primary cause
13

Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 14 of 40 PageID #:425
of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 18 U.S.C. §§ 3626(a)(3)(B), (E); see also Cook County, 761 F. Supp. 2d at 796 (three-judge panel reviewing request for prisoner release order).
This Court cannot issue plaintiffs’ requested relief because only a three-judge panel can issue the relief they seek. And even a three-judge panel could not grant plaintiffs’ requested relief because no court has previously entered a less intrusive order—or any order at all—that attempted to remedy the threat only recently posed by COVID-19. Indeed, just this last Saturday the three-judge panel assigned to oversee a prior prisoner release order in California refused to grant the class’s request to order an additional release of prisoners because of the COVID-19 threat. Plata v. Newsom, No. 01 C 1351, Dkt. 361, at 9. The class cited that prior order in an effort to satisfy § 3626, but the court concluded that the prior order dealt with “longstanding system constitutional deficiencies in California’s prison health care delivery system” and that any additional prisoner release would have to be specifically “based on shortcomings” in California’s response to COVID-19. Id.
These PLRA requirements apply to both legal claims (under the Eighth Amendment and ADA) that plaintiffs cite to support their requested emergency relief. Section 3626(g)(2) expressly applies to any “civil action with respect to prison conditions,” defined 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[.]” 18 U.S.C. § 3626(g)(2).
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Thus, plaintiffs must satisfy § 3626 not only for their § 1983 claim, but also for their ADA claim. See Gillette v Prosper, 858 F.3d 833, 837 (3rd Cir. 2017) (reviewing district court’s denial of request for three-judge panel for both § 1983 and ADA claims).
Plaintiffs original brief cites four federal court orders from late last month in an attempt to show that it is now common for courts to order the release of detainees and prisoners to minimize the risks posed by COVID-19. Dkt. 9 at 44. However, all four cases—Thaker v. Doll, No. 20-CV-0480, Dkt. 47 (M.D. Pa. Mar. 31, 2020); Coronel v. Decker, No. 20 C 2472, Dkt. 26 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, No. 20-CV-2518, Dkt. 11 (S.D.N.Y. Mar. 26, 2020); Flores v. Barr, No. 85-CV-4544, Dkt. 740 (C.D. Cal. Mar. 28, 2020)—concern immigration detainees in federal detention centers, not “prisoners” as plaintiffs mischaracterize them in their brief. Dkt. 9 at 45. The PLRA’s requirements do not apply to immigration detainees because they do not fall under the PLRA’s definition of a prisoner. See Cohen v. Clemens, 321 Fed. Appx. 739, 743 (10th Cir. 2009); Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002); LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998); Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997); see also 18 U.S.C. § 3626(g)(3) (defining “prisoner” as “any person subject to incarceration, detention, or admission to any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law….”). Thus, while the immigration detainees in Thaker, Coronel, Basank, and Flores did not have to satisfy § 3626’s requirements, plaintiffs here do, and their inability to do so defeats their requested relief.
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The immigration detainee cases are also inapposite because those courts were analyzing a “much more protective” and objective Fourteenth Amendment clause standard that “differs significantly from the standard relevant to convicted prisoners” who are subject to punishment. See Unknown Parties v Nielsen, No. 15 C 250, 2020 WL 813774, at *2–3 (D. Ariz. Feb. 19, 2020). As argued below, plaintiffs do not and cannot satisfy the subjective deliberative indifference test that applies to prison conditions cases.
Plaintiffs’ supplemental brief filed today makes two critical errors. First, they insist that they are not seeking the release of any prisoners from any prison, but rather just a request that certain subclass members be “identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly.” Dkt. 24 at 5. Plaintiffs’ motion flatly contradicts this backpedaling. Their motion seeks an order for “Defendants to transfer [approximately 16,000 class members] to their homes to self-isolate via a temporary medical furlough.” Dkt. 9 at 55 (emphasis added). The entire thrust of plaintiffs’ complaint and motion is to ask the Court to order the Department to release thousands of prisoners to their homes to allow them to try to avoid COVID-19 there.
Plaintiffs claim that what they are seeking does not qualify as a “prisoner release order” as defined in the PLRA, 18 U.S.C. § 3626(g)(4), because anyone released pursuant to the order would remain under some state control. Dkt. 24 at 5– 6. Both the text of § 3626(g)(4) and the Plata/Coleman cases that plaintiffs rely on refute this argument. A noted above, a prisoner release order is any order that
16

Case: 1:20-cv-02093 Document #: 26 Filed: 04/06/20 Page 17 of 40 PageID #:428
“directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). Nothing in § 3626(g)(4) suggests the definition does not apply when the order has the effect of releasing prisoners to some other less-restrictive environment. Moreover, the Plata/Coleman three-judge panel expressly ruled that even orders of release that require supervision fall within the PLRA. Dkt. 361, at 5 (denying prisoner release order even though the class requested parole and community supervision).
Plaintiffs also err by arguing that § 3626 does not apply because prisoner release orders by their nature redress prison overcrowding, which they claim is not their concern here. Dkt. 24 at 7. This is nonsense. The threat of COVID-19 exists in virtually every corner of this planet. But plaintiffs’ case is predicted on their contention that the Governor “has not taken any steps to substantially reduce the prison population” through expanded releases, furloughs, and transfers, Dkt.1 ¶ 74, resulting in crowded prisons that expose prisoners to greater risks of contracting COVID-19.
Plaintiffs cite several cases that are inapposite because, unlike this case, they were not based on alleged harms associated with crowded prisons. Four of the cases simply involved individual medical or mental health claims and had nothing to do with crowding. See Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195, 209–10 (D. Mass. 2019); United States v. Wallen, 177 F. Supp. 2d 455, 458 (D. Md. 2001) (also distinguishable because plaintiff was pretrial detainee); Murphy v. Lane, 833 F.2d 106 (7th Cir. 1987); Johnson v. Harris, 479 F. Supp. 333, 337-38 (S.D.N.Y. 1979). Doe
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v. Younger, Dkt. 24 at Ex. C, concerned a broad class of juveniles, but that opinion focused on the inappropriateness of keeping juveniles in adult prisons for too long and also had nothing to do with crowding. The same is true for the specific ruling in the Plata lawsuit relating to “valley fever” at two California prisons. There is no indication that crowding was the reason why certain inmates needed to be transferred elsewhere in the prison system. See Plata v. Brown, 01 C 1351, 2013 WL 3200587, at *9 (N.D. Cal. June 24, 2013) (only reference to crowding was citation to state’s own conclusion that overall system crowding would make transfers— necessitated by other issues—difficult to achieve).
The PLRA bars plaintiffs’ requested relief precisely because the Court’s order would qualify as a prisoner release order that is geared to redressing the alleged close connection between prison crowding and the potential spread of COVID-19.
2. Plaintiffs’ requested relief is Heck-barred. Plaintiffs’ Eighth Amendment and ADA claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), because it is apparent from their requested relief that plaintiffs are challenging the fact of their current confinement in Illinois prisons, rather than any conditions at those facilities. In Heck, the Supreme Court drew a line between claims that must proceed under the federal habeas statute and claims that are cognizable under § 1983. Specifically, the Court held that a § 1983 claim that necessarily requires a prisoner to establish the invalidity of his conviction or sentence does not accrue until the prisoner has obtained the favorable termination of that conviction or sentence through federal habeas or similar state remedies. Id. at 486–
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87. Later decisions refined that doctrine and clarified that any § 1983 action that, if successful, would necessarily imply the invalidity of the fact or duration of a prisoner’s confinement is barred. Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005). Heck thus bars actions challenging the fact or duration of a prisoner’s confinement, but it does not prohibit § 1983 claims challenging the conditions of that confinement. Savory v. Cannon, 947 F.3d 409, 422–34 (7th Cir. 2020) (en banc); see also Muhammad v. Close, 540 U.S. 749, 754–55 (2004). The relevant question for purposes of deciding if a claim must be brought under habeas or § 1983 is whether the prisoner is challenging the fact or duration of his confinement, or merely its conditions.
In Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991), the Seventh Circuit noted that it can sometimes be difficult to determine whether a prisoner is challenging the fact of confinement or its conditions, especially when “the prisoner is seeking not earlier freedom, but transfer from a more to a less restrictive form of custody.” In that circumstance, courts should ask if the prisoner is seeking “a quantum change in the level of custody,” in which case habeas is the proper remedy, or if the prisoner is just seeking transfer to a different program, location, or environment, in which case § 1983 is appropriate. Id. A prisoner seeks a quantum change in custody when, for example, he requests “freedom subject to the limited reporting and financial constraints of bond or parole or probation, or the run of the prison in contrast to . . . disciplinary segregation.” Id.
Applying Graham, the First Circuit has held that an action by prisoners challenging their re-incarceration after having been on electronic supervision fell on
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the habeas side of the line because the difference between incarceration and electronic supervision “can fairly be described as a quantum change in the level of custody.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010). The court noted that, unlike incarcerated prisoners, those on electronic supervision could “live with family members, work daily jobs, attend church, and reside in their own homes.” Id. at 873–74. By contrast, claims challenging a transfer to a different location within the prison system do not seek a quantum change in the level of custody. See Johnson v. Litscher, 260 F.3d 826, 831 (7th Cir. 2001); Pischke v. Litscher, 178 F.3d 497, 499 (7th Cir. 1999); Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995).
In this case, plaintiffs are seeking three types of relief: immediate medical furlough for subclasses 1 and 2 (the subject of the motion); immediate transfer to home detention for subclasses 3–5; and an immediate award of 180 days of sentencing credit for subclass 6. Dkt. 1 at 46–47. Each of these requests for relief seeks a quantum change in the level of the relevant class members’ custody.
Although plaintiffs do not seek preliminary relief for subclass 6, their claim that the members of subclass 6 should receive 180 days of sentencing credit is barred under a basic Heck analysis because awarding that credit would shorten the length of those prisoners’ sentences. See Edwards v. Balisok, 520 U.S. 641, 646–47 (1997) (claim seeking reinstatement of good-time credits is barred). That claim directly challenges the duration of the prisoners’ confinement.
Plaintiffs’ claims for transfer to home detention (subclasses 3–5, also not part of the present motion) are barred because the differences between incarceration and
20

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home detention “can fairly be described as a quantum change in the level of custody.” Gonzalez-Fuentes, 607 F.3d at 873. Unlike an incarcerated prisoner, those on home detention can live with family members in their own homes and may leave their homes to, among other things, go to work or school and attend religious services. 730 ILCS 5/5-8A-4(A). Relief for those in subclasses 3–5 is barred because plaintiffs in those groups are seeking freedom subject to limited reporting and constraints. See Graham, 922 F.2d at 381.
The claims for medical furlough for those in subclasses 1 and 2 (the subject of the requested emergency relief) are barred because those plaintiffs seek freedom from a prison facility to live in various locations (one in Florida) with limited oversight and reporting. See Dkt. 1 at 36–39. Indeed, medical furlough may be an even greater change in the level of custody than home detention because it does not impose the same limits on the ability to leave the home. Compare 730 ILCS 5/3-11-1 (furloughs) with 730 ILCS 5/5-8A-4 (home detention). Consequently, all three types of relief that plaintiffs request cannot be obtained under § 1983 without violating Heck.
Although plaintiffs claim their rights have been violated because they have been deprived of “reasonably safe living conditions,” Dkt. 1 at 43–46, they fail to seek any relief that would improve those allegedly unsafe conditions. Instead, they seek immediate release from prison, whether through medical furlough, home detention, or a shortening of their sentences. Id. at 46–47. And while a claim that, if successful, might lead to a speedier release does not necessarily render it Heck-barred, see Wilkinson, 544 U.S. at 82; Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir. 2004),
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plaintiffs here are directly seeking immediate release from prison. Plaintiffs are therefore challenging the fact of their confinement, rather than any conditions that have been imposed, and such claims are not cognizable under § 1983.
In addition, the potential availability of a prisoner release order, entered by a three-judge court after other less intrusive relief has proved unsuccessful, under the PLRA, 18 U.S.C. § 3626(a)(3), does not alter the Heck analysis. In Brown v. Plata, 563 U.S. 493, 517–522 (2011), the Supreme Court upheld prisoner release orders based on the finding that overcrowding had caused a shortfall in prison resources that in turn led to unsafe living conditions and ineffective medical care. The release order thus served the purpose of improving prison conditions by reducing the demand for existing services and thereby increasing the proportional availability of those resources. Here, by contrast, plaintiffs are not seeking the release of other prisoners to improve the conditions that they encounter in prison but are instead seeking their own release. Consequently, they are challenging the fact of their confinement and their section 1983 action is barred under Heck.
3. The Court should abstain from interfering in the administration of Illinois prisons.
Given the extraordinary nature of the injunctive relief that plaintiffs seek, the Court should abstain pursuant to Rizzo v. Goode, 423 U.S. 362 (1976), where the Supreme Court instructed that to obtain injunctive relief on a matter traditionally reserved to the discretion of a state or local government agency, a plaintiff must overcome the steep hurdle set by “the well-established rule that the Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal
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affairs.’” Id. at 378–79 (quotations omitted). In such cases, federal courts are to issue injunctions “sparingly, and only in a clear and plain case.” Id. at 378. This strong preference against intrusive injunctive relief is primarily founded on “delicate issues of federal state relationships” (Id. at 380 (quotation omitted)), which are premised on “the principles of equity, comity, and federalism.” Id. at 379 (quotation omitted).
The Seventh Circuit recently affirmed the continuing relevance of Rizzo as an extension of the Younger abstention doctrine, which “limit[s] federal court review of local executive actions.” Courthouse News Serv. v. Brown, 908 F.3d 1063, 1071 (7th Cir. 2018). The plaintiffs in Courthouse News sought a preliminary injunction compelling the Cook County Clerk to immediately make all complaints filed available to the press, rather than waiting for a period until the complaints were processed. The Seventh Circuit rejected the injunction, observing that “federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’” Id. at 1073 (quoting Rizzo, 423 U.S. at 378).
The considerations of federalism and comity underlying Rizzo weigh especially heavily when considering the administration of a state prison system, where the Supreme Court has noted that “[i]t 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. . . . Since these internal problems of state prisons involve issues so peculiarly within state authority
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and expertise, the States have an important interest in not being bypassed in the correction of those problems.” Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973).
Courts in this circuit have relied on Rizzo when declining to interfere in decisions affecting the administration of state prisons. As Judge Durkin recently explained, “the courts do not generally second-guess inmate housing decisions” because it is “not ‘the task of federal courts to oversee discretionary housing decisions made by state prison officials.’” Boykin v. Fischer, No. 16-CV-50160, 2019 WL 6117580, at *14 (N.D. Ill. Nov. 18, 2019) (quoting Del Rio v. Schwarzenegger, No. 09CV-0214, 2010 WL 347888, at *5 (C.D. Cal. Jan. 20, 2010)). “Where a plaintiff requests an award of remedial relief that would require a federal court to interfere with the administration of a state prison, ‘appropriate consideration must be given to principles of federalism in determining the availability and scope of [such] relief.’” Id. (quoting Rizzo, 423 U.S. at 379); see also Cornille v. Lashbrook, No. 19-CV-002, 2019 WL 366562, at *6 (S.D. Ill. Jan. 30, 2019) (denying TRO seeking a transfer to another prison); Conway v. Wagnor, No. 19-CV-036, 2019 WL 183903, at *1–2 (S.D. Ill. Jan. 14, 2019) (denying TRO seeking immediate medical treatment with a specialist and a transfer); Boykin v. Dixon Mental Health Servs., No. 16-CV-50160, 2018 WL 8806095, at *3 (N.D. Ill. Oct. 15, 2018) (“the courts are not engaged in the business of supervising inmate housing decisions”).
The injunctive relief plaintiffs seek in this case is far more intrusive than in any of the cases cited above. Rather than seeking a transfer for a single prisoner, plaintiffs seek to compel the Department to release approximately 16,000 prisoners
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immediately, with no consideration of the Department’s administrative, safety, and security concerns. The Court is not in a better position than the Department to determine who may safely be released on home detention or medical furlough and who may not. Consistent with the Supreme Court’s directive in Rizzo, this Court should exercise judicial restraint and deny plaintiffs’ motion.
4. Plaintiffs do not and cannot allege they have exhausted their administrative remedies.
Plaintiffs’ motion also should be denied because plaintiffs do not and cannot allege they exhausted their administrative remedies. The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. Ross v. Blake, 136 S. Ct. 1850, 1854–55 (2016) (citing 42 U.S.C. § 1997e(a)). The unavailability of remedies is the only exception to the exhaustion requirement. Id. at 1856–57 (rejecting any additional exception under “special circumstances” and explaining that the mandatory exhaustion regime forecloses judicial discretion). The Court in Ross identified three circumstances where a grievance procedure could be deemed unavailable: (1) prison officials consistently refuse to provide any relief to inmates; (2) an ordinary prisoner is unable to figure out the procedure; and (3) prison officials use intimidation or misrepresentation to thwart any ability for inmates to use the procedure. Id. at 1859–60. Plaintiffs do not suggest any of those circumstances exist here.
IDOC regulations provide the grievance procedures committed persons must follow. See 20 Ill. Adm. Code § 504.800, et seq. A prisoner may submit an emergency grievance directly to the warden, and the warden may determine that the grievance
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should be handled on an emergency basis. Id. §§ 504.840(a), (b). Plaintiffs do not allege that any of them filed a grievance over COVID-19 or that IDOC’s grievance procedure is unavailable to them. And although prisoners need not plead they have met the exhaustion requirement (an affirmative defense) to bring a claim, see Jones v. Bock, 549 U.S. 199, 216 (2007), the Court should not grant plaintiffs what amounts to their ultimate relief through mandatory medical furloughs before defendants can move for a Pavey hearing. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) (exhaustion issue should be decided at early stage of lawsuit).
B. Plaintiffs Are Not Likely to Succeed on their Eighth Amendment and ADA Claims Because They Do Not Meet the Plausibility Standard. 1. Plaintiffs do not allege the Governor or Director recklessly disregarded a recognized risk to an inmate’s health or safety.
The Eighth Amendment prohibits cruel and unusual punishments. U.S. Const. amend. VIII. Among the punishments the amendment forbids is the “unnecessary and wanton” infliction of suffering caused by an official’s deliberate indifference to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). To establish deliberate indifference, prisoners must prove that the prison official both knew of and disregarded an excessive risk to their health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Courts therefore perform a two-step analysis: “first examining whether a plaintiff suffered from an objectively serious medical condition, and then determining whether the individual defendant was deliberately
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indifferent to that condition.” Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016) (en banc).
Although defendants do not dispute their awareness that COVID-19 poses serious risks to prisoners and prison staff, they absolutely dispute that plaintiffs have plausibly alleged that the Governor (even assuming he is a proper defendant) or the Department’s Director was deliberately indifferent to that risk generally, let alone indifferent to any specific risk to any particular plaintiff. Plaintiffs do not allege that any of them has COVID-19 or has been deprived of any necessary care based on any of their particular medical conditions.
Deliberate indifference “describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835; accord Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016) (“evidence of medical negligence is not enough to prove deliberate indifference”). To establish a constitutional violation, the prisoner must show that the response was so deficient that it constituted criminal recklessness. Farmer, 511 U.S. at 839-40; see also Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008) (providing that “negligence or even gross negligence is not enough; the conduct must be reckless in the criminal sense”). The deliberate indifference standard imposes a “high hurdle” and requires a showing “approaching a total unconcern for the prisoner’s welfare.” Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012) (internal quotations and citation omitted).
An official’s response to a risk of harm can defeat an allegation of deliberate indifference even if the risk is not ultimately averted. Farmer, 511 U.S. at 844.
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Accordingly, a defendant is “not required to take perfect action or even reasonable action.” Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003). This standard ensures that “the mere failure . . . to choose the best course of action does not amount to a constitutional violation.” Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).
Ignoring these established holdings, plaintiffs predicate their case on a disagreement about what they believe to be the best course of action to protect them and other prisoners from possible exposure to COVID-19. Plaintiffs acknowledge the Department has released at least 300 prisoners, Dkt. 1 ¶ 83, but they complain the Governor and Director have not acted with more “urgency or decisiveness” to release “substantially” more. Id. ¶¶ 73–74. Plaintiffs plainly based their case on what they believe is reasonable, asserting that defendants have “failed to take reasonable measures” to secure more early releases through various means. Id. ¶ 111. By basing their claim on what they believe to be a reasonable course of conduct, plaintiffs improperly seek to equate their Eighth Amendment claim with malpractice, contrary to the Court’s directive in Estelle, 429 U.S. at 106 (“malpractice does not become a constitutional violation merely because the victim is a prisoner”).
In short, plaintiffs’ focus on the reasonableness of defendants’ actions is legally insufficient to make a plausible showing that defendants were and continue to be subjectively and recklessly indifferent. Their allegations do not make the required “clear showing” that they are likely to succeed on their deliberate indifference claim.
Although the Court can and should deny plaintiffs’ motion based solely on the defects in plaintiffs’ unverified pleading (based heavily on inadmissible hearsay
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exhibits), the Court also can take judicial notice of the public actions taken by the Governor and the Department of Corrections to combat COVID-19 within the State of Illinois generally, and within the Department of Corrections specifically. Those actions, summarized above, refute any notion that defendants’ responses to COVID19 may be fairly or plausibly characterized as recklessly indifferent. Plaintiffs have no likelihood of success on their deliberate indifference claim.
2. Plaintiffs are not “qualified individuals” under the ADA and do not plausibly allege they are being denied services because of their alleged disabilities.
Title II of the ADA prohibits public entities from discriminating against qualified individuals with disabilities by depriving them of opportunity to participate in the services, programs, or activities of the public entity because of their disabilities. 42 U.S.C. § 12132.
Title II of the ADA applies to prisons, see Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998), and prisoners may sue state officials in their official capacity for prospective injunctive relief under Title II. Brueggeman ex rel. Brueggeman v. Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003). But to assert a valid claim under Title II, plaintiffs must have a “qualifying disability” and must show a denial of benefits of services, programs, or activities through discrimination “by reason of” their disability. Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 937 (N.D. Ind. 2009) (quoting Frame v. City of Arlington, 575 F.3d 432, 435 (5th Cir. 2009)); see also Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996).
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The ten plaintiffs here cannot clearly establish that they meet the required “otherwise qualified” standard. “An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap.” Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979) (emphasis added). Plaintiffs seek release under the Illinois medical furlough statute, 730 ILCS 5/3-11-1. This statute permits the release of offenders on a medical furlough for purposes of obtaining medical services that are not otherwise available. The Governor’s Executive Order issued on April 6, 2020 removes the “not otherwise available” requirement and allow the Director discretion to permit the release of offenders on a medical furlough more generally for purposes of obtaining medical, psychiatric or psychological services. But regardless, plaintiffs make no allegations suggesting that any one of them, let alone others in subclasses 1 and 2 (medically vulnerable and over age 55), qualify for a furlough under the statute even as modified by the Executive Order. To the contrary, plaintiffs admit they are seeking release not to obtain medical, psychiatric or psychological services, but rather so they can leave prison to live in another location in an effort to avoid contracting COVID-19. Dkt. 9 at 54; Dkt. 1 ¶¶ 93–100. Accordingly, plaintiffs are not “qualified” under the ADA because they have not alleged anything suggesting that they are eligible for a furlough under 730 ILCS 5/3-11-1.
Plaintiffs also do not plausibly allege any discrimination against them by reason of any claimed disability. A plaintiff “may establish discrimination by presenting evidence that the defendant intentionally acted on the basis of the
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disability, the defendant refused to provide a reasonable modification, or the defendant’s denial of benefits disproportionately impacts disabled people.” Culvahouse, 679 F. Supp. 2d at 937 (relying upon Washington v. Ind. High Sch. Athletic Assn., Inc., 181 F.3d 840, 847 (7th Cir. 1999)). Plaintiffs bring their ADA claims under two different theories: reasonable modification or accommodation, and disparate impact. Both theories fail.
The ADA requires state and local entities to make “reasonable modifications” to policies, rules, and practices so that people with disabilities can participate in public programs and services. 42 U.S.C. § 12131(2). Whether a modification is considered reasonable depends on the specific circumstances and modifications sought. To decide what constitutes a “reasonable modification” for a prisoner, courts weigh the needs of prisoners with disabilities against the structural, financial, and administrative concerns of the prison. In particular, courts consider (1) whether the modification will “fundamentally alter” a program or activity, (2) the cost of the modification, and (3) the burden the modification would have on administration of the prison. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), 35.164. Courts also may consider concerns relating to prison management, prisoner rehabilitation, and safety. See, e.g., Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (prison could present evidence that providing an interpreter for a deaf prisoner at disciplinary hearings created safety and security concerns); Love, 103 F.3d at 561 (prison could justify its refusal to make reasonable accommodations because of the overall demands of running a prison).
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Here, there are obvious administrative, safety, and security concerns posed by plaintiffs’ request for a release of some 16,000 offenders in subclasses 1 and 2 at once. First, the administrative effort needed to accomplish this task would be massive. IDOC staff are currently working around the clock to take all measures necessary to prevent and treat COVID-19. To redirect resources to release all plaintiffs in subclasses 1 and 2 on medical furlough would significantly hinder these efforts. Second, even a “temporary” release of approximately 16,000 offenders, with limited or no oversight, would present significant safety and security concerns for the prisoners themselves and for the public at large.
Plaintiffs contend that defendants’ current practice related to releases and transfers to combat COVID-19 disparately impact them because they are medically vulnerable. Dkt. 9 at 48. But plaintiffs fail to provide any appropriate comparables necessary to create a plausible inference of any disparate effect on them.
“Unlike a claim for disparate treatment, a claim for disparate impact doesn't require proof of intentional discrimination.” Albuquerque Pub. Sch., 813 F.3d at 1298 (internal quotation marks and citations omitted). Instead, to “prove a case of disparate impact discrimination, the plaintiff must show that a specific policy caused a significant disparate effect on a protected group.” Id. (internal quotation marks and citation omitted). “This is generally shown by statistical evidence involving the appropriate comparables necessary to create a reasonable inference that any disparate effect identified was caused by the challenged policy and not other causal factors.” Id. (internal quotation marks and citation omitted). “Moreover,
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a disparate impact claim must allege a pattern or practice of discrimination, not merely an isolated instance of it.” Id. (citation omitted).
Plaintiffs fail to provide any appropriate comparables necessary to create a plausible inference of any disparate effect. Instead, plaintiffs rely entirely on conclusory claims about the unprecedented impact of COVID-19. In doing so, plaintiffs admit that any disparate effect is caused by COVID-19, not defendants’ policies. Their assertions are facially insufficient to establish a plausible disparate impact claim.
The Court should deny plaintiffs’ motion because they cannot clearly establish a likelihood of success on the merits of their deliberate indifference or ADA claims. II. Plaintiffs Have Not Demonstrated They Face the Kind of Irreparable Harm
Necessary to Warrant Their Requested Extraordinary Relief. Plaintiffs’ motion also should be denied because they cannot establish irreparable harm. Winter, 555 U.S. at 22. Plaintiffs argue that there is a “possibility that absent immediate relief from the Court, vulnerable prisoners will be infected with COVID-19.” Dkt. 9 at 64 (emphasis added). But the Supreme Court in Winter confirmed that the “possibility” of irreparable harm is not enough; plaintiffs must “demonstrate that irreparable injury is likely in the absence of an injunction.” 555 U.S. at 22 (emphasis in original). In Orr v. Shicker, 2020 WL 1329659, at *8–10 (7th Cir. Mar. 23, 2020), the Seventh Circuit recently adhered to Winter by striking down a preliminary injunction and reversing class certification of two classes of Illinois prisoners who complained about lack of treatment for the hepatitis C virus (HCV). The court instructed that
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irreparable harm is a harm that “cannot be repaired,” and a plaintiff “must demonstrate that he will likely suffer irreparable harm absent obtaining preliminary injunctive relief.” Id. at *9 (citing Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017)). The court rejected the district court’s preliminary injunction based on the alleged possibility of harm caused by HCV; the court noted that injunctive relief based on a possibility of harm “is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. (citing Winter, 555 U.S. at 22).
Here, defendants do not underestimate the possible risk COVID-19 poses to the IDOC prison population and staff. But, like the plaintiffs in Orr, plaintiffs’ case is flawed because it is based on the possibility that a substantial risk might arise from COVID-19 generally, not that any named plaintiff faces a particular probable harm. III. The Harm to the State and Public if an Injunction Issues Outweighs the
Possible Harm to Plaintiffs Absent an Injunction. Under the “balance of harms” portion of the analysis, plaintiffs must establish that “the harm they would suffer without the injunction is greater than the harm that preliminary relief would inflict on the defendants.” Mich. v. U.S. Army Corps of Eng’g, 667 F.3d 765, 769 (7th Cir. 2011). Where, as here, a movant shows a low likelihood of success on the merits, the movant “must compensate for the lesser likelihood of prevailing by showing the balance of harms tips decidedly in favor of the movant.” Boucher, 134 F.3d at 826 n.5 (emphasis in original).
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The court also should consider whether a preliminary injunction would cause harm to the public interest. Platinum Home Mort. Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998). As discussed above, even a “temporary” release of approximately 16,000 convicted felons, with limited or no oversight, and without the detailed risk assessment performed by the Department before any prisoner is released, would present significant safety and security concerns for the prisoners themselves and for the public at large.
Plaintiffs’ requested relief also is not in the public interest because it would drastically interfere with the State’s ability to manage its own prison system. Rowe v. Finnan, No. 11-CV-524, 2013 WL 74609, at *2 (S.D. Ind. Jan. 4, 2013). As discussed above, the Court should “afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” Id. (quoting Sandin v. Conner, 515 U.S. 472, 483 (1995)). “Any injunction issued against prison officials dealing with the dayto-day operation of the prison system may cause substantial harm to both public and private interests.” Id. The injunction sought here, which would strip the Department of the most basic control over its prison system—the power to determine who may be safely released—would cause substantial harm to the public interest, as well as to the interests of the victims of plaintiffs’ crimes. It also would interfere with the Department’s efforts to make sure prisoners are properly released to a safe home or host site. Plaintiffs’ request that they and the Court substitute their own judgment for the Department’s in determining who may be safely released from prison and on what conditions, is not responsible or in keeping with the public interest.
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Although defendants do not minimize the possibility that prisoners may contract COVID-19 (and in fact are taking significant actions to prevent the spread of COVID-19), that possibility does not outweigh the harm to the public if the Court were to interfere with the Department’s current efforts to protect prisoners and prison staff, including through the release of prisoners in a manner that is as safe as possible and consistent with Illinois law. The balance of equities weighs against granting plaintiffs’ requested relief. IV. The Court Should Not Provisionally Certify Subclasses 1 and 2.
In their motion, plaintiffs ask the Court to “preliminarily certify Plaintiffs’ proposed subclasses 1 and 2.” Dkt. 8 at 6, 21; Dkt. 9 at 55. The Court should decline that request.
Plaintiffs bear the burden of establishing the propriety of class certification by a preponderance of the evidence. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997); Orr, 2020 WL 1329659, at *4. Rule 23 provides several requirements for class certification, and the failure to satisfy even one of them precludes class certification. Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008).
When deciding whether to certify a class, courts must conduct a rigorous analysis, including consideration of merits evidence where appropriate. For example, in Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001), the Seventh Circuit admonished the district court for ignoring evidence that undermined class certification and accepting the allegations of the complaint as true. In short, “a district court must make whatever factual and legal inquiries are necessary to ensure
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that requirements for class certification are satisfied before deciding whether a class should be certified, even if those considerations overlap the merits of the case.” Am. Honda Motor Co., 600 F.3d at 815; see also Spano v. Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011).
In this case, plaintiffs have presented no actual evidence about the proposed class. They rely on the allegations of their complaint and multiple hearsay exhibits, but that is not enough. Szabo, 249 F.3d at 675. The Court should deny preliminary certification for this reason alone.
Moreover, the proposed subclasses clearly lack commonality and typicality. To meet the commonality requirement, plaintiffs’ claims “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution—which means that 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.” Orr, 2020 WL 1329659, at *5 (quoting Wal-Mart, 564 U.S. at 350). “What matters to class certification . . . is not the raising of ‘common’ questions—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Chicago Teachers Union, Local No. 1 v. Bd. of Ed. of City of Chicago, 797 F.3d 426, 434 (7th Cir. 2015) (quoting Wal-Mart, 564 U.S. at 350 (emphasis in original)). “Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Orr, 2020 WL 1329659, at *5 (quoting Wal-Mart, 564 U.S. at 350).
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Plaintiffs here posit three common questions: whether COVID-19 poses a substantial risk of harm, whether defendants have measures available to them to reduce the prison population, and whether defendants have failed to use those measures effectively. Dkt. 8 at 11. These are not common questions because the answers to them would not “drive the resolution of the litigation.” Even if the Court were to determine that the answer to each of these questions is yes, that would not establish that every member of subclasses 1 and 2 should be released on a medical furlough. There are important differences among the individual members of the proposed subclasses that preclude any common resolution of this case. These differences include whether the prisoner can obtain necessary medical care within the prison system; whether the prisoner can be safely furloughed; whether the prisoner has a safe host site; whether that host site poses less risk of infection than the prisoner’s current facility; and whether the class member might potentially put a vulnerable family member at risk of infection at the host site. The Department should be able to evaluate these factors before deciding whether to grant any furlough. Thus, resolution of plaintiffs’ asserted common questions would not resolve this case.
Typicality is lacking for the same reasons. To meet the typicality requirement, a class representative must be part of the class and must “possess the same interest and suffer the same injury” as the other class members. Orr, 2020 WL 1329659, at *6 (quoting Wal-Mart, 564 U.S. at 348). The commonality and typicality requirements “tend to merge.” Spano, 633 F.3d at 586 (quoting General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982)).
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Here, even the limited information alleged about the proposed representatives
of subclasses 1 and 2 shows they have significant differences from the rest of the class,
defeating typicality. These include the following:
 The safety risk that the class member poses both to his/her immediate family and to the public. For example, Gerald Reed is serving a life sentence for murder, and was convicted of aggravated kidnapping and attempted robbery in the same event.16 Tewkunzi Green has 21 years left on a 34-year sentence for murder,17 and Carl Reed has eight years left on a 27-year sentence for murder.18 These plaintiffs may argue they do not pose a safety risk to the public, but the Department is entitled to make its own determination on this point.
 Whether the class member has a safe host site. Danny Labosette alleges that he is “eligible to be transferred to home detention at his mother’s home in Florida.” Dkt. 8 at 16–17. But any transfer to Florida would require the approval of Florida’s Department of Parole under the Interstate Compact for Adult Supervision, and Florida is not accepting any discretionary transfers at this time. See https://www.interstatecompact.org/covid19. Plaintiffs do not indicate that Mr. Labosette would be considered a “returning resident” of Florida, nor that he has been approved for transfer by Florida.
 Whether the class member might potentially put a vulnerable family member at risk. William Richard (age 66), Gerald Reed (age 57), and Danny Labosette (age 56) all plan to live with their mothers upon release. Dkt. 8 at 15–16. These plaintiffs’ mothers are likely much older than these plaintiffs and therefore more at risk of infection.
In summary, there are significant differences among members of the proposed
subclasses 1 and 2 that impede any single injunctive remedy. Because commonality
and typicality are lacking, neither the class nor the proposed subclasses should be
certified.
16 See https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=N32920. 17 See https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=R84568. 18 See https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=R48993.
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CONCLUSION

Defendants have moved quickly and aggressively to take concrete actions to

protect the health and safety of prisoners, prison staff, and the public. But neither

defendants nor the Court can or should, as plaintiffs suggest, release thousands of

prisoners under the medical furlough statute simply because they are over 55 years

old or have underlying medical conditions. This is against the public interest, and it

is prohibited by the PLRA and binding case law.

Plaintiffs have not presented plausible claims giving them a likelihood of

success on the merits on their Eighth Amendment and ADA claims, and they have

not demonstrated more than a possibility of harm. That possibility does not outweigh

the State’s and the public’s interest in ensuring that any released prisoners, and the

communities they might go, to are appropriately protected through the measures the

Department is already taking consistent with Illinois law.

For all of these reasons, the Court should deny plaintiffs’ motion for a

temporary restraining order or a preliminary injunction.

Dated: April 6, 2020

Respectfully Submitted,

KWAME RAOUL Attorney General of Illinois

/s/ R. Douglas Rees R. DOUGLAS REES

Nicholas S. Staley Colleen Shannon Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

Deputy Attorney General, Civil Litigation Office of the Illinois Attorney General 100 West Randolph Street, 13th Floor Chicago, Illinois 60601 (312) 814-3498 drees@atg.state.il.us

40

 
 Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 1 of 19 PageID #:370

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

MONEY, et al.,

)

)

Plaintiffs,

)

No. 20 cv 2093

v.

)

)

PRITZKER, et al.,

)

)

Defendants.

)

______________________________________________________________________________

MONEY, et al.,
Petitioners, v.
JEFFREYS,
Respondent.

)

)

)

No. 20 cv 2094

)

)

)

)

)

PLAINTIFFS’ SUBMISSION ON THE APPLICABILITY AND EFFECT OF 18 U.S.C. § 3626

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 2 of 19 PageID #:371
The COVID-19 pandemic presents an unprecedented—and hopefully never to be repeated—threat to the lives of people worldwide. Those of us who live outside of prisons have turned our lives upside down to protect ourselves, our families, and our communities from this dangerous threat. People who live inside of prisons, however, cannot do the same. COVID-19 has made its way into Illinois’ prisons, is already wreaking deadly havoc inside Stateville Correctional Center, and is just getting through the door at major downstate facilities like Logan, Menard, Danville, Sheridan, and Graham Correctional Centers. These prisons can be analogized to buildings on fire: the fire is sure to spread, and certain people within these facilities are especially susceptible to getting burned. These people need this Court’s urgent intervention to get them out—even if just on a temporary basis—so that they can survive this crisis.
Procedural Background On April 2, 2020, Plaintiffs James Money, et al., filed two separate actions concerning the COVID-19 crisis in the Illinois Department of Corrections (IDOC). Money et al. v. Pritzer et al, No. 20 cv 2093, is a Section 1983 action that seeks certification of six separate subclasses with different relief sought for each class. Broadly speaking, Subclasses 1 and 2 consist of medically vulnerable prisoners who seek furlough pursuant to the Illinois prisoner furlough statute so that they can follow guidelines issued by the Centers for Disease Control (“CDC”) during the COVID-19 crisis, which they cannot do inside of IDOC prison walls. Subclasses 3-5 seek transfer to home confinement during the COVID-19 crisis pursuant to various Illinois statutes that allow home confinement for certain groups of prisoners. Subclass 6 seeks an award of 180 days sentencing credit, allowed under Illinois law, for prisoners within 180 days of release. Money et al. v. Jeffreys, No. 20 cv 2094, is an emergency petition for writs of habeas corpus that seeks relief parallel to that sought in the Section 1983 matter.
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The same day, Plaintiffs also filed an emergency motion for a TRO/PI in the Section 1983 matter. See Money v. Pritzker, No. 20 cv 2093, Doc. 9. That motion seeks preliminary certification of Plaintiffs’ Subclasses 1 and 2 and an order transferring those individuals to their homes or other approved placement to self-isolate via temporary medical furlough while remaining in the custody and control of IDOC. Id. The filed TRO/PI does not include, at this stage, relief for Subclasses 3-6.
On April 4, 2020, the Court directed Plaintiffs 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.” Money v. Pritzker, No. 20 cv 2093, Doc. 22.
As Plaintiffs describe in further detail below, 18 U.S.C. § 3626 applies to their Section 1983 suit, but it has no application to the habeas action. Furthermore, the relief that Plaintiffs seek in the Section 1983 TRO/PI motion—placement of Subclasses 1 and 2 on medical furlough—does not implicate § 3626(a)(3) because it does not seek a prisoner release order. Plaintiffs request for relief also satisfies § 3626(1) and (2) because it is narrowly tailored to correct violations of federal rights.
I. The Relevant Provisions of 18 U.S.C. § 3626 Requests for relief under 18 U.S.C § 3626 are governed by Subsection (a) of that statute,
which 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
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particular plaintiff or plaintiffs,” id. at (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 section prohibits courts from ordering a state official to exceed her authority under state law unless doing so is required by federal law to protect a federal right and no other relief will do so. Id. at (a)(1)(B). Courts refer to these requirements as the “needs-narrowness-intrusiveness” test. 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 injunctions and temporary restraining orders, and further requires that all such relief “shall 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.” Id. at (a)(2).
Finally, Subsection (3) governs “prisoner release order[s].” 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. at (g)(4). Subsection (3) imposes substantive and procedural requirements on prisoner release orders, including the appointment of a three-judge district court for any release order that involve remedies for overcrowding. II. Plaintiffs’ TRO/PI Motion Does Not Seek a “Prisoner Release Order” Under 18
U.S.C. § 3626(a)(3) Plaintiffs’ TRO/PI motion seeks specific, narrowly tailored relief that does not implicate the release order provisions of the PLRA. The motion seeks relief for Subclasses 1 and 2 only:
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medically vulnerable and over-55 people in IDOC custody who can be furloughed under 730 ILCS 5/3-11-1. In more concrete terms, Plaintiffs propose a remedial plan requiring the IDOC to: (1) identify eligible subclass members; (2) evaluate whether their transfer to medical furlough (or home detention, if IDOC prefers) would implicate public safety concerns and thus render them ineligible for furlough or detention; and (3) medically furlough (or transfer to home detention, if IDOC prefers) all eligible subclass members. See e.g., Ex. A, Plaintiffs’ Draft Remedial Plan.
Plaintiffs’ requested relief is not a “prisoner release order” within the meaning of § 3626(a)(3) for three independent reasons. First, as discussed in Subsection A below, Plaintiffs do not request that IDOC release them from custody, but rather that IDOC act with urgency to identify, evaluate, and relocate appropriate and eligible class members. Individuals transferred to medical furlough or home detention as a result of IDOC’s evaluations and determinations would remain in the custody and control of the IDOC and the IDOC would be free to impose restrictions pursuant to 730 ILCS 5/3-11-1 or 730 ILCS 5/5-8A-3. Second, as discussed in Subsection B below, the PLRA limits release orders by federal courts to remedy overcrowding. That provision is not implicated in this case, which does not relate to overcrowding but rather to the unique circumstance of a highly contagious virus that puts the lives of class members at increased risk so long as they are held in a prison setting. Third, as explained in Subsection C, even if there were ambiguity about whether § 3626(a)(3) reaches Plaintiffs’ circumstances, the constitutional avoidance doctrine would require this Court to resolve the ambiguity in Plaintiffs’ favor. To the extent that § 3626(a)(3) would deny relief, it would be unconstitutional as applied.1
1 Plaintiffs’ other proposed subclasses likewise do not seek a PLRA “prisoner release order.” Just as medical furlough does not implicate § 3626(a)(1)(3), neither does transfer to home confinement. Plaintiffs can further address the applicability of § 3626(a)(1)(3) to Subclasses 3-6 at a later stage. The currently-pending TRO/PI motion does not seek relief for these subclasses.
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A. Plaintiffs Do Not Seek a Release Order, But Rather a Process to Mitigate the Threat of COVID-19 for Medically Vulnerable Prisoners, Evaluate Their Suitability for Medical Furlough, and Transfer Eligible Prisoners
By its very terms, 18 U.S.C. § 3626(a)(3) applies only to an order “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.” § 3626(g)(4). Plaintiffs do not seek either of these things. Rather, they seek a process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly.
The plain language of Illinois’ prison furlough statute defines a furlough not as release from confinement or custody, but as an extension of “the limits of the place of confinement of a committed person under prescribed conditions.” 730 ILCS 5/3-11-1. Consistent with this concept, the Illinois Administrative Code treats prisoners on medical furlough as “committed persons,” governed by the Code’s “Authorized Absence” provisions. See 20 Ill. Admin. Code § 530.40. Prisoners on furlough are considered to remain under confinement for a variety of purposes, including election law and public benefits law. See 10 ILCS 5/3-5 (“Confinement . . . shall include any person convicted and imprisoned but granted a furlough as provided by Section 3-11-1 of the Unified Code of Corrections . . .”); Social Security Administration (SSA) Program Operations Manual System (POMS) PR 06805.016 Illinois (“a prisoner is considered ‘confined’ [] or ‘a resident of a public institution’ [] even if he is granted and/or released on a furlough, for purposes of suspension of benefits to prisoners”).
When transferred, these Plaintiffs will still remain in IDOC custody, though their location will have changed. By way of illustration, all of the IDOC prisoners who have COVID-19 and are on ventilators at outside hospitals are on “medical furlough” status. Although not inside of a
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specific correctional center, these people are still indisputably still in IDOC custody, as is clear from the IDOC profile of one these men, below:

K77218 - WILSON, JOSEPH

Parent Institution: Offender Status: Location:

STATEVILLE CORRECTIONAL CENTER MEDICAL FURLOUGH FURLOUGH

IDOC still considers furloughed or transferred prisoners as being within the IDOC

population, just as it would for someone who resides in the community on electronic monitoring

or who resides behind prison walls. Recent data shows that IDOC has approximately 1500-1700

prisoners on medical furlough status at any given time. See Ex. B, IDOC, Operations and

Management Report (OMR) Key Variables Fiscal Year 2020, 1.

The custodial status of furloughed prisoners is set forth in the nature and duration of

furloughs: the statute contemplates temporary relocation to “(2) to obtain medical, psychiatric or

psychological services when adequate services are not otherwise available.” 730 ILCS 5/3-11-

1(a)(2). Given the unique threat posed by COVID-19, furlough to a home setting—where social

distancing, the only established approved mechanism to avoid infection, can be practiced—falls

within the scope of the furlough statute. Once the threat posed by COVID-19 has been contained

or mitigated, IDOC can recall these individuals back to correctional centers. Indeed, the medical

furloughs Plaintiffs seek are necessarily temporary. 730 ILCS 5/3-11-1(a)(2) (authorizing IDOC

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Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 8 of 19 PageID #:377
to furlough a prisoner for a limited period of time for medical reasons). Plaintiffs do not seek a release from custody, and § 3626(a)(3) does not apply.
B. The PLRA’s Release Order Requirements for Mass Prisoner Releases and Population Caps Are Inapplicable Here
Although Plaintiffs do not seek a prisoner release order within the meaning of the PLRA, even if they did, because they do not seek a remedy for overcrowding, the circumstances of today’s pandemic are outside the scope of § 3626(a)(3). Both the plain language of the statute as a whole and the legislative history demonstrate that this provision is specific to federal court orders remedying violations primarily caused by overcrowding. See 18 U.S.C. § 3626(a)(3)(e) (limiting release orders to where “crowding is the primary cause of the violation of a Federal right”). The House Report accompanying the PLRA explained that it was intended to govern court imposed “prison caps.” H.R. Rep. No. 104-21, p.25 (1995).
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 Corr., 392 F. Supp. 3d 195, 209-10 (D. Mass. 2019) (citing Johnson v. Harris, 479 F. Supp. 333, 337-38 (S.D.N.Y. 1979) (ordering prison to either transfer prisoner to facility equipped to provide for his medical needs or to ensure he is provided with adequate care as remedy for prison’s deliberate indifference to his serious medical needs); see also 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”); see also 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) (allowing plaintiff’s claim for retaliatory transfer
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Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 9 of 19 PageID #:378
to go forward based on prison officials’ transfer of plaintiff to prison more poorly-equipped to handle his psychiatric needs).
For more than two decades, district courts have found that § 3626(a)(3) does not apply to orders remedying violations of federal rights other than overcrowding, even where that order requires prisoners to be moved out of their current facilities. In Doe v. Younger, No. 91-187 (E.D. Ky. Sept. 4, 1996), Op. and Order (attached as Ex. C) 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 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.”
In a case directly on point to the present situation, Plata v. Brown, No. C01-1351, 2013 WL 3200587, at *9 (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. Plata, 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
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Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 10 of 19 PageID #:379
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. In the context of the relief requested here, the PLRA’s legislative history review is not an academic exercise, but an imperative affirmation of this court’s broad equitable authority to order relief for Subclasses One and Two. “‘A statute should not be construed to displace courts’ traditional equitable powers ‘[a]bsent the clearest command to the contrary.’” Plata, 2013 WL 3200587, at * 9 (citing Gilmore v. California, 220 F.3d 987, 997 n.12 (9th Cir. 2000), 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)). As the PLRA’s legislative history demonstrates, 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 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.”). As both the Doe and Plata courts concluded, the PLRA does not preclude court orders to transfer medically vulnerable prisoners, which is the relief Plaintiffs seek here. 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’
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failure to comply with the terms of consent decrees designed to eliminate overcrowding.”) (citing Gilmore, 220 F.3d at 998 n.14); Doe v. Younger, attached as Ex. C, 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.”). Senators who supported § 3626’s restrictions did so explicitly in response to federal courts that were “dictat[ing] prison population size and order[ing] excess prisoners released.” 142 Cong. Rec. S10576-02, 1996 WL 522797 (remarks of Sen. Abraham). The record evinces the overriding intent to limit the capacity of federal judges to impose “prison population cap[s].” 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of Sen. Dole) (“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.”); see also 142 Cong. Rec. S3703-01, 1996 WL 188576 (remarks of Sen. Abraham) (the purpose of the PLRA was to end such judicial orders as “a program of wholesale releases of up to 600 criminal defendants per week to keep the prison population down to what the judge considers an appropriate level”); Margo Schlanger, Anti-Incarcerative Remedies for Illegal Conditions of Confinement, 6 U. Miami Race & Soc. Just. L. Rev. 1, 27-28 (2016) (collecting congressional testimonies and reports identifying federal court-imposed prison population caps as the target of the PLRA).
Plaintiffs do not seek such mass release orders or population caps. Instead, Plaintiffs seek an expedited, individualized review and re-location of those people who are medically vulnerable and more likely to have serious complications or to die if they contract COVID-19.
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The purpose of this expedited review is to evaluate their suitability for medical furlough or home detention—not release from IDOC custody. No court has ever held that relief of such deferential nature is in conflict with § 3626(a)(3).
C. The Doctrine of Constitutional Avoidance Requires the Court to Interpret § 3626 Consistently With the Relief Sought by Plaintiffs
Even if there were ambiguity about whether § 3626(a)(3) applies to the relief Plaintiffs seek, the doctrine of constitutional avoidance requires resolving that ambiguity in Plaintiffs’ favor. If § 3626(a)(3) is interpreted to preclude, or even to delay, relief sought by Plaintiffs in the face of an undisputed imminent risk of serious illness or death arising from a deadly virus, this provision would be unconstitutional as applied. Such an interpretation would unlawfully prevent courts from ordering relief urgently needed to protect prisoners’ lives and federal rights in the face of an unprecedented pandemic, 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 (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) (“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.”).
In the unique circumstances of the COVID-19 pandemic, requiring the § 3626(a)(3) procedures and precluding relief because Plaintiffs’ have not alleged that their rights are violated due to overcrowding, would be unconstitutional. Defendants here are well aware of the
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Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 13 of 19 PageID #:382
immediate risks to Plaintiffs’ lives and health from remaining in the congregate setting of prisons. See ECF No. 1, Complaint, ¶¶ 43-44. Every day of delay does not merely delay relief but increases the risk. At least two prisoners have already died. Reading the PLRA to prevent the courts from acting here would be unconstitutional, or at a minimum, raises serious constitutional concerns. Jones, 529 U.S. at 857 (courts should avoid statutory constructions that raise “grave and doubtful constitutional questions”) (internal quotation marks and citation omitted). III. The Relief Plaintiffs Seek in the Section 1983 Matter Satisfies the “Needs-
Narrowness-Intrusiveness” Requirements of § 3626(a)(1) & (a)(2) The urgency of the risk posed to medically vulnerable Plaintiffs by COVID-19 cannot be overstated. Continued incarceration of Plaintiffs in Subclasses 1 and 2 puts them at substantial risk of imminent contraction of and death from COVID-19, in violation of the Eighth Amendment and the Americans with Disabilities Act. Under the PLRA, any injunctive remedy must satisfy the “needs-narrownessintrusiveness requirement.” See Fields v. Smith, 653 F.3d 550, 558 (7th Cir. 2011). That means that a district court issuing a preliminary injunction must find that the relief (1) is narrowly drawn, (2) extends no further than necessary to correct the harm requiring preliminary relief, and (3) is the least intrusive means necessary to correct that harm. 18 U.S.C. § 3626(a)(2). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief.” Id. The “needs-narrownessintrusiveness” 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); see also Brown v. Plata, 563 U.S. 493, 531 (2011) (“Narrow tailoring requires a fit between the remedy’s ends and the means chosen to accomplish those ends . . . . The scope of the remedy must be proportional to the scope of the
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Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 14 of 19 PageID #:383
violation, and the order must extend no further than necessary to remedy the violation.”). The unique circumstances of the COVID-19 pandemic, and the particular risks it poses for the medically vulnerable, requires immediate furlough or transfer for Subclasses 1 and 2.
Accordingly, this Court must order IDOC to implement a process similar to one included in Sections 1 and 2 of in the Plaintiffs’ proposed Draft Remedial Plan, so that subclass members who pose no risk to public safety are transferred from facilities where the chances of contracting COVID-19 are incredibly high, to community placements where they can safely quarantine while remaining in IDOC custody. 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 enough, a factfinder can infer that a prison official knew about it and disregarded it.” (citations omitted).
A. Relief Sought by Plaintiffs is Narrowly Drawn The relief proposed in Plaintiffs’ Draft Remedial Plan is narrowly drawn both in scope and in substance. While Plaintiffs’ Section 1983 action is brought on behalf of all prisoners in the IDOC and six cognizable subclasses, they see preliminary relief for two subclasses only: those who are medically vulnerable due to age, and those who are vulnerable due to preexisting medical conditions. Urgent action is required to protect the lives of these prisoners by preemptively removing them from prison facilities before they contract COVID-19. The relief itself is also narrowly tailored to meet the particular characteristics and circumstances of the COVID-19 pandemic. As detailed more fully in Plaintiffs’ complaint, standards from the CDC and other public health experts indicate that all individuals, but
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particularly those who are medically vulnerable, should avoid close contact with people who are sick or who are or may be contagious even if asymptomatic. See ECF No. 1, Complaint, ¶¶ 3133. In Illinois prisons, Defendants have admitted that all aspects of daily life take place in a congregate setting making social distancing impossible. See id. ¶¶ 43-44. The only way for Defendants to ensure that medically vulnerable prisoners can keep their distance from others is by transferring them to a different environment.
B. Relief Sought by Plaintiffs Does Not Extend Further Than Necessary to Correct the Violation of their Federal Rights
The preliminary injunctive relief sought by Plaintiffs does not extend further than necessary to correct the constitutional violation at issue, given the nature of the violations of federal law and IDOC’s inability to remedy the serious risk of harm in any other way. While the court’s order for relief must be deliberately narrow to minimize intrusion into correctional operations, the relief ordered must also be sufficient to fulfill its function of remedying the violations at hand. See 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.”). Here, the violations at hand include imminent risk of contracting COVID-19, which could lead to serious medical complications and death. The only adequate remedy for medically vulnerable prisoners is medical furlough or transfer.
The very nature of Illinois prisons renders IDOC incapable of protecting the medically vulnerable subclasses from COVID-19’s spread if they remain within IDOC facilities. Illinois’ Director of Public Health has admitted that IDOC facilities do not have enough individual cells to isolate prisoners with confirmed cases of the virus, and that prisons “pose unique challenges in stopping the spread of disease and protecting the health of individuals who live and work there.” See ECF No. 1, Complaint, ¶ 43. If confirmed cases cannot be successfully quarantined within
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IDOC facilities, the only way the IDOC can protect the lives of these vulnerable individuals is by immediately furloughing or transferring them to a site outside the prison.
This Court cannot not wait for the virus to spread to each IDOC facility before identifying eligible class members and granting them medical furlough. Cf. Skinner v. Uphoff, 234 F. Supp. 2d 1208, 1218 (D. Wyo. 2002) (“Of course, the remedy ordered by this Court shall extend no further than necessary to correct the violation of the Federal right, but if it is necessary to enact systemic and prophylactic measures in order to correct the violations found to exist in this instance, the Court may do so.”). Once this dangerous virus enters the prison, it will spread rapidly from prisoner to prisoner and among staff. Catastrophe already has struck at Stateville, where the number of confirmed COVID-19 cases has grown exponentially in just a matter of days, sickening dozens of prisoners and staff and killing at least two prisoners. COVID-19 cases have now been confirmed among staff or prisoners at Stateville NRC, Menard, Logan, Danville, Sheridan, Graham, Joliet Treatment Center, and Kewanee. Action must be taken now to prevent devastation throughout prisons and prison communities across the state.
C. The Relief Sought is the Least Intrusive Means to Remedy the Violation Plaintiffs’ proposed relief wholly respects the discretion of the IDOC and requires relocation only for those individuals who have medical vulnerabilities to COVID-19 and pose no threat to public safety. This relief is authorized by state law and is the least intrusive means to protect the life and rights of the medically vulnerable Plaintiff subclasses. The Illinois legislature created medical furlough as a mechanism to allow for temporary change in confinement under special circumstances, and one would be hard pressed to find a more dire special circumstance than the current global pandemic. Under Illinois’ medical furlough statute, the IDOC is authorized to “extend the limits of the place of confinement of a
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Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 17 of 19 PageID #:386
committed person under prescribed conditions, so that he may leave such place on a furlough.” 730 ILCS 5/3-11-1(a). The COVID-19 pandemic has already claimed the lives of at least two Illinois prisoners and sent more than a dozen to a hospital intensive care unit. Medical furlough is an appropriately tailored remedy to protect the lives of prisoners who are most at risk of death from COVID-19 due to their age and preexisting medical conditions. IV. PLRA Has No Application to Petitions for Writs of Habeas Corpus
Petitioners request emergency action in their request for writs of habeas corpus; as in the Section 1983 suit, Petitioners seek immediate furlough or transfer of Subclasses 1 and 2. The PLRA has no application to a habeas petition. 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. U.S. Parole Comm’n, 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. Ill. 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”). This conclusion is fully supported by the two separate statutory schemes enacted by Congress to govern § 1983 actions (the PLRA) and habeas petitions (the AntiTerrorism and Effective Death Penalty Act). See Blair-Bey, 151 F.3d at 1041 (noting that the PLRA and AEDPA were enacted two days apart, “strongly suggest[ing] that Congress intended to make its changes to habeas proceedings via the AEDPA, and to alter procedure in prisoner civil rights litigation in the PLRA”).
16

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 18 of 19 PageID #:387

Dated: April 6, 2020

Respectfully submitted,
/s/Elizabeth Mazur One of the Attorneys for the Plaintiffs

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465

Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Avenue, Suite 300 Chicago, IL 60602 (312) 241-0020
Sarah Grady Steve Weil Loevy & Loevy 311 N. Aberdeen Street, 3rd Floor Chicago, IL 60607 (312) 243-5900
Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411

Counsel for Plaintiffs

17

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 19 of 19 PageID #:388 CERTIFICATE OF SERVICE
I, Elizabeth Mazur, an attorney, certify that I served this pleading on all counsel of record by filing it through CMECF system.
/s/Elizabeth Mazur
18

Case: 1:20-cv-02093 Document #: 24-1 Filed: 04/06/20 Page 1 of 3 PageID #:389
PLAINTIFF’S DRAFT PROPOSED REMEDIAL PLAN RELATED TO THEIR REQUEST FOR A TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION
1. IDENTIFICATION OF INDIVIDUALS ELIGIBLE FOR IMMEDIATE TRANSFER TO FURLOUGH OR HOME DETENTION: Within three days of the date of the order, the Illinois Department of Corrections will identify all people in the physical custody of IDOC and who are vulnerable due to underlying medical condition or age, within these categories: i. People who have a pre-existing condition and have an increased risk of serious harm or death from COVID-19 as result of that condition. Pre-existing conditions include but are 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, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. ii. People who are medically vulnerable and have an increased risk of serious harm or death from COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
Within three days of identifying individuals eligible for furlough, or transfer, IDOC shall collect information from each individual for identifying potential host sites.
2. Within 7 days of the date of this order, the IDOC will use its discretion to transfer individuals identified pursuant to the above to medical furlough or home detention:
Every person identified pursuant to paragraph 1 of this order with an available host site will be removed from the correctional center via the mechanism determined by IDOC as most appropriate (such as medical furlough or transfer to home detention) unless the IDOC determines, with the approval of the special master, that an individual’s furlough or transfer would pose a substantial danger to the physical safety of an identifiable person or persons that outweighs the threat to the individual’s health and the public health threat posed by their continued incarceration. Assessment of the safety risk must be based on an

Case: 1:20-cv-02093 Document #: 24-1 Filed: 04/06/20 Page 2 of 3 PageID #:390
individualized analysis, and not categorical exclusions (except those excluded offenses for furlough or transfer mechanisms under the law). In the event that the IDOC rejects a furlough or transfer to home detention to any person identified in Paragraph 1, IDOC will document their justification with specific and individualized concerns including those related to the individual’s institutional history and background.
3. FORMATION OF THE COVID-19 EMERGENCY RECORD REVIEW TASK FORCE. Class Counsel will, at IDOC’s request, form a Task Force comprised of up to 150 pro-bono attorneys, legal assistants, social workers, law students and other qualified individuals, who report to the Special Master. The purpose of the Task Force is to assist the IDOC in conducting the record review necessary to effectuate the terms of this Order. The Task Force will function as follows: a. Class Counsel will work with the IDOC to recruit qualified Task Force Members, who have demonstrated high ethical standards and the requisite skills needed to contribute to the Task Force; b. IDOC will execute the required agreements to allow the Task Force to access and review the relevant records. This may include, but is not limited to, submitting an Agreed Order to this Court that will permit Task Force Members to review protected health information as permitted by the Health Insurance Portability and Accountability Act of 1996 Public Law 104-191 (1996) (“HIPPA”). Task Force Members shall work under the supervision and control of the Special Master and shall be required to execute requisite confidentiality agreements; c. Task Force members shall prepare one to two page summaries of the files of each individual reviewed regarding the individual’s medical condition, current disability, institutional record, relevant history and background. These summaries will be based on a form developed jointly by Class Counsel and the IDOC; d. The Class Counsel and the IDOC shall collaborate on the form and content of Task Force member training. No Task Force member shall begin their record review without first completing this training; e. IDOC will rely on the Task Force summaries to review each individual and make the decision required pursuant to ¶ 2. Nothing in this Agreed Order limits the IDOC’s authority to order furlough, transfer to home detention and/or release prior to the completion of any task force summary or separate from the process required by this Order.
4. Appointment of a Special Master. The Parties agree to the appointment of a Special Master, to be jointly selected by the parties. The Special Master shall have extensive experience in management and a general familiarity with corrections and/or the justice system and/or the public health system. The Special Master shall have the discretion to consult with individuals with expertise in corrections, public safety and public health, as needed. The Special Master shall have the following responsibilities:

Case: 1:20-cv-02093 Document #: 24-1 Filed: 04/06/20 Page 3 of 3 PageID #:391
a. Reviewing IDOC’s denial of medical furlough to any medically vulnerable person on the basis of public safety concerns. If the special master disagrees with the IDOC’s determination, the IDOC shall grant the individual medical furlough;
b. At the request of the IDOC, making recommendations about transfer, or furlough decision for any individual or groups of individuals;
c. Managing and overseeing the work of the Task Force, to include but not limited to establishing strict timelines and instituting quality control procedures;
d. Collaborating with Class Counsel to develop and distribute resources related to housing and public benefits for those who are furloughed pursuant to the terms of this Order and to deploy any resources and or/knowledge Class Counsel can offer to mitigate practical and logistical barriers.
e. Managing the IDOC host site approval process for all class members and ensuring that the process is efficient, fair and comports to the requirements of this Order.
5. CLASS COUNSEL ACCESS AND REPORTING. The IDOC shall provide to Class Counsel the names, IDOC numbers and facilities of every person in IDOC custody who is eligible for release, transfer and medical furlough under the terms of this Order, and shall provide Class Counsel with the names of any such person who it deems not eligible for relief under Paragraph 2 for any reason, including lack of a host site. The IDOC will further provide Class Counsel with the names and prisoner IDOC numbers of all people medically furloughed and/or transferred to home detention pursuant to this Order every 48 hours. The IDOC and Class Counsel will collaborate to seek and necessary HIPPA related orders from the Court to facilitate information sharing.

Case: 1:20-cv-02093 Document #: 24-2 Filed: 04/06/20 Page 1 of 2 PageID #:392

ILLINOIS DEPARTMENT OF CORRECTIONS

Operations and Management Report (OMR) Key Variables

Fiscal Year 2020

OMR Key Variable

JUL 2019 AUG 2019 SEPT 2019

Total Use of Chemical Agents

84

79

79

Use of Chemical Agent

65

55

62

Use of Chemical Agent - Offender Self Harm

19

24

17

Cell Extractions

41

29

23

Activation of Tactical Teams

118

57

79

Total Vehicle Searches

3,322

2,817

2,849

Total Non Staff Vehicle Searches

2,579

2,164

2,105

Total Staff Vehicle Searches

743

653

744

Vehicle Searches Resulting in Arrests

0

1

0

Visitor Restrictions

11

15

6

Total Lockdown Days

65

45

68

Incident Based Lockdown Days

48

36

62

Administrative Based Lockdown Days

17

9

6

Segregation Sentences: Reductions / Cuts - Number of Offenders

189

175

159

Segregation Sentences: Reductions / Cuts - Number of Days

5,522

5,849

5,346

Temporary Confinement Placements

787

790

694

Temporary Confinement End-of-Month Count

216

267

272

Investigative Status Placements

388

401

381

Investigative Status End-of-Month Count

127

136

127

Disciplinary Segregation Placements

645

573

590

Disciplinary Segregation Status End-of-Month Count

903

904

900

Administrative Segregation Placements

14

3

8

Administrative Segregation Status End-of-Month Count

134

111

109

Double-Celling Denials Issued by the Warden

72

51

80

Vulnerables

336

348

350

Predators

230

242

246

Vulnerable and Predator

79

83

81

Disciplinary Transfers of Inmates

153

111

151

Total Deaths

10

2

11

Expected Deaths

8

2

8

Unexpected Deaths

2

0

3

Offender Sick Calls

49,343

47,556

49,257

Hunger Strikes

160

141

114

Total Off-Site Emergency Room Visits

231

195

212

Total Off-Site Medical Furloughs

1,763

1,736

1,557

Number of Offenders Housed in Outside Hospitals

110

127

141

OCT 2019 68 57 11 25 88
3,003 2,087
916 0
12 40 40
0 180 13,037 876 308 411 145 642 913
8 102
97 339 238
78 106
13 8 5
48,709 129 185
1,788 127

NOV 2019 72 54 18 14 32
2,952 2,032
920 0
11 23 17
6 136 3,432 778 273 356 115 610 876
12 110
70 358 248
78 98
6 3 3 43,077 143 190 1,671 105

DEC 2019 73 53 20 15 91
3,030 2,032
998 0 5
46 17 29 143 7,044 786 272 370 136 603 792 24 120 51 347 227 75 65 13
7 6 41,976 122 205 1,721 131

Prepared by Planning and Research

Case: 1:20-cv-02093 Document #: 24-2 Filed: 04/06/20 Page 2 of 2 PageID #:393

Number of Days Housed in Outside Hospitals Physical Health - Average Daily Censes for Infirmary Services Infirmary Average Daily Census - Acute Infirmary Average Daily Census - Chronic Total Number of Admissions to the Infirmary Infirmary - End-of-Month Count in Permanent Housing Pregnancies Births Mental Health - Caseload Seriously Mentally Ill Caseload Total Crisis Watch Observations Crisis Watch - Continuous Watch Status Crisis Watch - Suicide Watch Status Crisis Watch - Offenders on Close Supervision Status Crisis Watch - Offenders on Periodic Check Status Suicide Ideation Suicide Attempt Inmate Self Harm Suicides Total Staff Total Staff Security Total Staff Non Security Total Staff Non DOC

387 260 174 167 370 136
11 1
12,020 4,931 742 72 341 159 170 415 22 156 0
11,604 8,863 2,741 1,683

498 266 186 183 393 135
13 2
12,071 4,888 693 89 302 153 149 386 33 85 0
11,635 8,868 2,767 1,460

603 273 182 187 390 151
12 1
12,372 4,973 648 69 285 163 131 382 27 82 0
11,861 9,018 2,843 1,643

END OF MONTH POPULATION/ADULT FACILITIES ONLY Note: The OMR is in Draft and Confidential status; they sometimes change after administrative review. Source: Operations and Management Report

38,238

38,244

38,135

Non-DOC Staff refers to the number of non-DOC (non-GRF) staff at the end of the month assigned to work at the facility, including contractors, Office of Adult Education, and ICI funded staff. Also includes drug treatment staff (TASC or similar), Educators and Vocational Instructors (through local Colleges or Office of Adult Education), regular Health Service providers (not those on PRN status only), etc. Does not include volunteers or vendors performing routine maintenance or service contracts (fire marshal, elevator inspectors, vending machine service persons, etc.).

610 271 186 196 394 149
7 5 12,706 4,887 567 44 248 131 147 290 23 81 1 11,765 8,962 2,803 1,591
38,003

563 280 180 195 348 165
8 1 12,694 4,841 566 43 233 138 152 297 27 73 1 11,874 9,064 2,810 1,643
37,798

598 286 116 204 339 159
6 1 12,887 4,756 628 50 303 140 135 345 25 62 1 11,355 8,621 2,734 1,566
37,291

Prepared by Planning and Research

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 1 of 16 PageID #:394

tnn'rED STATES DISTRICT COURT
EASTERN DISTRICT OP KENTUCKY AT COVINGTON

CIVXL ACTION NO. 91-187

JOBN DOB, BT AL
vs.

OPDllON AND ORDBR

DOH YOlJNGD, BT AL

EASTERN DISTRICT of KENTUCKY
FILED
SEP,~.. i996
AT COVINGTON LESLIE G. WHITMER ~LERK, U. S. DISTRICT COURT.
PLAINTIFFS
DEFENDANTS

This matter is before the court on defendant Kenton County'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 attorneys' 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 to file a petition for attorneys' fees is granted.
I
Plaintiffs initiated this civil rights .class action pursuant
to 42 u.s.c. §1983. They challenge the constitutionality of the
conditions of their confinement at the Kenton County Detention Center (KCDC) in Covington, Kentucky. After considering all
1

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 2 of 16 PageID #:395

evidence presented during a three day trial to the bench and considering all arguments made in post-trial briefs filed by the parties , the court entered its findings of fact and conclusions of law as well as an amended judgment on July 26, 1996. The parties seek alteration of portions of these documents.

TBB FINDINGS OP FACT AND CONCLUSIONS OF LAW WILL BE AMENDED
CONCBR.Nl:NG THE EXEMPTION FROM THE 15 DAY LIMJ:TATION ON LENGTH OF STAY
This case requires the court to balance significant conflicting interests -- the due process rights of incarcerated juveniles, the public's right to have juvenile crime and misbehavior addressed, and the separation of federal and state powers. As explained in the court's findings of fact and conclusions of law, the Kenton County Detention Center is clearly substandard in many respects. However, in the view of the 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 this facility for juveniles who do not have the benefit of adult

procedural protections, stating:

Plaintiffs ask the court to close this

~ci institution. After careful reflection, the
court has concluded.that such an ~fxt~e~~

ld violate the principles o JU 1.c1a

wo~traint and federalism. But the court has

~!so concluded that confining a juvenile_ there

or an extended period -.- more than fifteen

~lS) days unless there is probable cause to

believe that the juvenil~ can be ~reate~ as an

adult

c

h

d arge

with

a

crime -1

is punishment What one can

without due process of the aw.

2

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 3 of 16 PageID #:396

bear for a short period can be intolerable if
prolonged.

Doc. #447 at 2. The court's amended judgment provides, "That,

effective August 15, 1°0 6 ;7 ;7 ,

no J· uveni· 1e not i·ndicted for 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 concerning 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 revise its 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-02093 Document #: 24-3 Filed: 04/06/20 Page 4 of 16 PageID #:397

juveniles who have allegedly been in contempt

criminal proceedings.

of court, a r e not

See,~, In re Gault, 387 U.S. 1 (1967) ;

Kent v. United States, 383 u.s. 54 1 (

S. W.2d 195

1966); Young v. Knight. 329

{Ky. 1959); Alexander 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, li~e tha~ of other jurisdictions, is

rooted in social welfare philosophy rather

than in the corpus juris. Its proceedings are

designated as civil rather than criminal. The

Juvenile Court is theoretically engaged in

determining 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 st1gma~1zed

with a criminal record for acts committed

during minority. By providing young people

"th treatment oriented facilities rather than

=~mple punishment, antisocial behavior can be

modified and the offenders will develop as law

dtarboa1e· dds iint1igi·om1n·.catiltltihyzee

ns. However, constitutional
provided for a

S)=lch treatment
druilgthtos£tfhenadt earsre.

. 1 offenders are not afforded all the

Juven7t e tional rights that adult of~enders

cons~i u

are afforded only the right.to

rfeacier ivtree. atmTheenyt. • · · J. usti.ce systern reflects

Tthhei.sKpehnti.u1coksyophjuyv. eni~e

County pepart ment f- or HumaneSrv...;.ces v . carter, 795

Jefferson

and citations omitted) (emphasis

S.W.2d 59, 61 (Ky. 1990) (footnote

added).
Even so basic a work as American Jurisprudenc2ed, a primer of

4

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 5 of 16 PageID #:398

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

.

The pu~ose of juvenile court legi slation

1.s to provide for the disposition of deli n-

qu7nt, dependent, neglected, and abandoned

ch1.ldren 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 respect to the delinquent child the
philosophy of juvenile court laws is that the
juvenile is to be considered 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 lies at the very foundation of the statutory scheme.

4 7 Am. Jur. 2d Juvenile Courts and Delinguent 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 80 basic that one doubts if contrary assertions_are made in

good faith.~

2 Certainl denial of these basics would not be "warranted by exi~~ law or by a

.

y,

t r.or the extension modification or reversal of eXJstmg law or the

nonfrivolous argumen 1•

• '

establishment of new law." Fed. R C1v. P. ll(b)(2).

5

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 6 of 16 PageID #:399

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 f aci li ty, 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 require 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 requ1·.rement s 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 youthful offender, a juvenile must be accused of committing

•

3

certain serious crimes.

6

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 7 of 16 PageID #:400

The procedures by which it is determi'ned that

proceeded against as a youthful ff d

a ch• ild will be

o en er are contained in the

Kentucky Unified Juvenile Code. To initiate these procedures, the

county attorney must make a motion before the District court to

transfer the child to Circuit Court for treatment as a youthful offender.
KRS 635.020 and KRS 640.010(2).' 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 treatment as a youthful offender

have been satisfied. KRS 640.010(2) (a). The District Court then

considers a number of other factors concerning the circumstances

surrounding the offense, the child, and the public and determines

whether the child should be transferred to Circuit Court for treatment as a youthful offender. KRS 640. 010 (2) (b) .

felony offenses on two_s~par;telonoycciansiownhsich(KaRSfi6r3ea5r.0m20w(a3s))u; sed in
(c) a child charged wi~f a ewho was at least fourteen years old atht ethceomtmimisesioonf othfe thaelleoge~n~~mmission of the offense (KRS

:r 635.020(4));

d 'th a felony who previously had been

(d) a child charge wi

d (KRS 635.020(5)); and

convicted as a youthful offen hteen years old and is charged

w(ei)th aa pfeelrosnoyn wthhao t isocacut rlree~sptrio~ to his eighteenth birthday (KRS

635.020(7)).

4In

the

case

of

a

c hi'ld.

c

h

at r'

gleeda

swti'

th a four

felo teen

ny ye

in ars

wohldicha

t a

the

firearm was

used

and dowffheonsise, a KRS

0(4) 635.02

pHroovwiedveesr, foitr appears

time of the alleget as a youthful offender. that the county

~I!e automatic treatmenof KRS 640.010(1) and~~) child to Circuit
afrtotmorrtntheinye omlarundsgeurt to trai.gmgoetrionthetohteraar~isngfe~hateresults in the

~~~omatic transfer.

7

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 8 of 16 PageID #:401

Due to the serious consequences associated with treatment as
a youthful offender, it is common for the child's attorney to seek
additional time for investigation and preparation prior to the

trans£er hearing. At the telephonic hearing, the County Attorney,

Garry Edmondson, personally orally certified to this court that all

motions for transfer to the Circuit Court for treatment as a

youthful off~nder are and will be made in the good faith belief

that the facts support such a transfer. He also said he could make

the necessary good faith determination within the 15 days.

Based upon the County Attorney's representation and the fact

that it is impossible to ensure that a transfer hearing will commence within 15 days of incarceration without infringing the juvenile's right to adequate preparation and investigation, the

court concludes that its July 26, 1996 findings of fact 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

prosecutor has, in go~ faith~ fi~ed 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 l·.n the court's July 26, 1996 findings of fact and conclusions o f law or in the court ' s amended judgment filed that same day that are i~consistent with this statement shall

be vacated.
mos OP PACT AND CONCLUSIONS OF LAW ~LL
THBB:~BD TO TRACK LANGUAGE REQUIRED BY PRXSON LXTXGATION R.BPORM ACT OF 1995
8

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 9 of 16 PageID #:402

In its moti· on to alter or amend

the court did

, Kenton County contends that

ena t

not make specific findings required by the recently

c ed Prison Litigation Reform Act of 1995 and, therefore ,

Kenton

County

is

enti. tled

to

immediate

release

' from

the

prospective

relief provided by this court's July 26, 1996 amended J'ud

Kenton County' s argument is without merit.

gment.

The Prison Li·ti·gation Reform Act of 1995 provides, in part:

pTrhoe spceocutirvt e srhealilel f nuont le~r~: or app7ove any

such relief is narrowi8 e court finds that

f v l

uei. oartslhateti3r·:o-nnt rtuhosafi·nvethmeneeacFneessdsneaerracYyle

drtaown, coerxrtent ds ssrai.gryh tt,o acnodercre1.c.st

nh o ttthheee

violation of the Federal right.

1a u.s.c.A. §3626 Ca) (l.) (A) (1996). The Act further provides for

termination 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 violat~on _of the
1 . tiffs, Federal constitutional right to

th:ind~e process o:celsa;.; anio i~o:::ctle~:~

intrusive meansat nFederafYright. The court

violat:ion of bt~ ntial weight to any. adverse

has 91ven au.but', a safety or the oper~tion ~f a

impact on P ic

d by this relief•

criminal justiice sy~te~~a~~~ordance with the

This finding s ma e

9

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 10 of 16 PageID #:403

Prison
U.s.c.

Litigati.'on
§3626 (a} (1).

Reform

Act

of

1995,

18

THE

C O U R TO' SRDAME,, NDED

JUD~-
'-7£·~-.,1,,

IS

NOT

A

"PRISONER

RELEASE

BR WITHIN THE MEANING OF THE PLRA

Kenton County's final contention is that the court's July 26, 1996 amended judgment constitutes a ~prisoner release order" as

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

provisions concerning prisoner release orders and in view of the

legislative history underlying those provisions. 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." 18 u.s.c.A. §3626(a) (3) {E) (1996). In addition, the House Judiciary committee's report provides:
subsection (a) {2): Prison population reduction relief

10

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 11 of 16 PageID #:404

To fh ilsa ss tu br s e c

t· ion

makes

prison

only if t~:ort,. permitting a c:;pto ~he. remedy

i s•

the

"pP;t'l.soner proves. 1) thate imposed

rimary" c

•

crowding

vio1 ation; and 2} tha:use of the federal

<;ure the violatio

no other remedy will

imposed in recogn!t·. These requirements are

ef;ects prisoner

of prison releases

r

~1~~nsdofantdhet

severe, he acco

adverse mpanying

e*i; *on to meet the caps .

i:a By requiring that a 1 . . .
actual violation of b·aint1ff.1nm~te prove an based on the alle const1.tut1.o~al rights

subsection will end lh overcrowding, this

imposing p ·

e current practice of

complained :;;on caps. when inmates have . d. . ut the prison conditions but the

p~esi ing ~udgE; has made absolutely no finding

o~~

unconstitutionality or even held the allegations. In ordering or

any t. 1 appro!f~g

ese caps, some judges now oversee hu

program, of releases to keep the p r ~

12opulat1.on down to whatever that · a

considers an appropriate level.

JU ge

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 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. In the case a t bar, the court ordered that children-- other

than those for whom the county attorney has filed a motion for

as a youthful offender--not be

transfer to Circuit Court incarcerated in t he barren KCDC for more than 15 days.

The court's

11

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 12 of 16 PageID #:405

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, ~ . 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.

THE COMMONWEALTH DBPBNDANTS' 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#) raise

three contentions in their motion to alter or amend the court's

I
July 26 , l996 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

Prima,.,, •.z

authority

to

operate

the

detention

center.

12

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 13 of 16 PageID #:406
For purposes of cl · f • ari. ication, the court notes that "state" is used
in the section 1983 sense of off1.·c1'als acting under color of state
law and this included the Commonwealth defendants and the 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 ~supervisen the KCDC, but they admit that the Commissioner has the authority to -monitorw and •inspectn 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 in 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
they were ever approved by the· state fire marshal.n ~ doc. #447
at 28 . As the court specifically reserved ruling on the fire saf ety i ssue unt 1• 1 a court-appointed fire expert could be retained,
13

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 14 of 16 PageID #:407

there is no need to revisit

safety issue at this time.

the evidence surrounding the fire

Therefore I

the court bei'ng a dv.ised,

1:T IS HEREBY ORDERED as follows:

1.
judgment

That Kenton County's motion to alter, amend and vacate

(do #4s

c.

0-1) be, and it is, hereby granted as to the

determination of what juveniles are exempt from the fifteen day
limitation period. The court's July 26, 1996 findings of fact and

conclusions of law and amended judgment are hereby modified to
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 relief ordered in this case is narrowly draW1!, 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 Federal right. The court has given substantial weight to any. adverse impact on public safety or the oper~tion ~fa criminal justice system caused by this !elief. This finding is made in accordance with the
14

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 15 of 16 PageID #:408

UPr.sis.ocn.

Litigati'on §3626 (a) (1);

Reform

Act

of

1995,

18

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

amend and vacate J'udgment (d

#

oc, 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, and it is, 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 l{?fi: day of September, 1996.
~d)N&o-~
WLIAMO. BERTELSMAN, CHIEF JUDGE

15

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 16 of 16 PageID #:409
F I L E COPY 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. aonar

D certificate of Mailing by

II,\~

 
 Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 1 of 19 PageID #:370

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

MONEY, et al.,

)

)

Plaintiffs,

)

No. 20 cv 2093

v.

)

)

PRITZKER, et al.,

)

)

Defendants.

)

______________________________________________________________________________

MONEY, et al.,
Petitioners, v.
JEFFREYS,
Respondent.

)

)

)

No. 20 cv 2094

)

)

)

)

)

PLAINTIFFS’ SUBMISSION ON THE APPLICABILITY AND EFFECT OF 18 U.S.C. § 3626

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 2 of 19 PageID #:371
The COVID-19 pandemic presents an unprecedented—and hopefully never to be repeated—threat to the lives of people worldwide. Those of us who live outside of prisons have turned our lives upside down to protect ourselves, our families, and our communities from this dangerous threat. People who live inside of prisons, however, cannot do the same. COVID-19 has made its way into Illinois’ prisons, is already wreaking deadly havoc inside Stateville Correctional Center, and is just getting through the door at major downstate facilities like Logan, Menard, Danville, Sheridan, and Graham Correctional Centers. These prisons can be analogized to buildings on fire: the fire is sure to spread, and certain people within these facilities are especially susceptible to getting burned. These people need this Court’s urgent intervention to get them out—even if just on a temporary basis—so that they can survive this crisis.
Procedural Background On April 2, 2020, Plaintiffs James Money, et al., filed two separate actions concerning the COVID-19 crisis in the Illinois Department of Corrections (IDOC). Money et al. v. Pritzer et al, No. 20 cv 2093, is a Section 1983 action that seeks certification of six separate subclasses with different relief sought for each class. Broadly speaking, Subclasses 1 and 2 consist of medically vulnerable prisoners who seek furlough pursuant to the Illinois prisoner furlough statute so that they can follow guidelines issued by the Centers for Disease Control (“CDC”) during the COVID-19 crisis, which they cannot do inside of IDOC prison walls. Subclasses 3-5 seek transfer to home confinement during the COVID-19 crisis pursuant to various Illinois statutes that allow home confinement for certain groups of prisoners. Subclass 6 seeks an award of 180 days sentencing credit, allowed under Illinois law, for prisoners within 180 days of release. Money et al. v. Jeffreys, No. 20 cv 2094, is an emergency petition for writs of habeas corpus that seeks relief parallel to that sought in the Section 1983 matter.
1

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 3 of 19 PageID #:372
The same day, Plaintiffs also filed an emergency motion for a TRO/PI in the Section 1983 matter. See Money v. Pritzker, No. 20 cv 2093, Doc. 9. That motion seeks preliminary certification of Plaintiffs’ Subclasses 1 and 2 and an order transferring those individuals to their homes or other approved placement to self-isolate via temporary medical furlough while remaining in the custody and control of IDOC. Id. The filed TRO/PI does not include, at this stage, relief for Subclasses 3-6.
On April 4, 2020, the Court directed Plaintiffs 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.” Money v. Pritzker, No. 20 cv 2093, Doc. 22.
As Plaintiffs describe in further detail below, 18 U.S.C. § 3626 applies to their Section 1983 suit, but it has no application to the habeas action. Furthermore, the relief that Plaintiffs seek in the Section 1983 TRO/PI motion—placement of Subclasses 1 and 2 on medical furlough—does not implicate § 3626(a)(3) because it does not seek a prisoner release order. Plaintiffs request for relief also satisfies § 3626(1) and (2) because it is narrowly tailored to correct violations of federal rights.
I. The Relevant Provisions of 18 U.S.C. § 3626 Requests for relief under 18 U.S.C § 3626 are governed by Subsection (a) of that statute,
which 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
2

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 4 of 19 PageID #:373
particular plaintiff or plaintiffs,” id. at (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 section prohibits courts from ordering a state official to exceed her authority under state law unless doing so is required by federal law to protect a federal right and no other relief will do so. Id. at (a)(1)(B). Courts refer to these requirements as the “needs-narrowness-intrusiveness” test. 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 injunctions and temporary restraining orders, and further requires that all such relief “shall 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.” Id. at (a)(2).
Finally, Subsection (3) governs “prisoner release order[s].” 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. at (g)(4). Subsection (3) imposes substantive and procedural requirements on prisoner release orders, including the appointment of a three-judge district court for any release order that involve remedies for overcrowding. II. Plaintiffs’ TRO/PI Motion Does Not Seek a “Prisoner Release Order” Under 18
U.S.C. § 3626(a)(3) Plaintiffs’ TRO/PI motion seeks specific, narrowly tailored relief that does not implicate the release order provisions of the PLRA. The motion seeks relief for Subclasses 1 and 2 only:
3

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 5 of 19 PageID #:374
medically vulnerable and over-55 people in IDOC custody who can be furloughed under 730 ILCS 5/3-11-1. In more concrete terms, Plaintiffs propose a remedial plan requiring the IDOC to: (1) identify eligible subclass members; (2) evaluate whether their transfer to medical furlough (or home detention, if IDOC prefers) would implicate public safety concerns and thus render them ineligible for furlough or detention; and (3) medically furlough (or transfer to home detention, if IDOC prefers) all eligible subclass members. See e.g., Ex. A, Plaintiffs’ Draft Remedial Plan.
Plaintiffs’ requested relief is not a “prisoner release order” within the meaning of § 3626(a)(3) for three independent reasons. First, as discussed in Subsection A below, Plaintiffs do not request that IDOC release them from custody, but rather that IDOC act with urgency to identify, evaluate, and relocate appropriate and eligible class members. Individuals transferred to medical furlough or home detention as a result of IDOC’s evaluations and determinations would remain in the custody and control of the IDOC and the IDOC would be free to impose restrictions pursuant to 730 ILCS 5/3-11-1 or 730 ILCS 5/5-8A-3. Second, as discussed in Subsection B below, the PLRA limits release orders by federal courts to remedy overcrowding. That provision is not implicated in this case, which does not relate to overcrowding but rather to the unique circumstance of a highly contagious virus that puts the lives of class members at increased risk so long as they are held in a prison setting. Third, as explained in Subsection C, even if there were ambiguity about whether § 3626(a)(3) reaches Plaintiffs’ circumstances, the constitutional avoidance doctrine would require this Court to resolve the ambiguity in Plaintiffs’ favor. To the extent that § 3626(a)(3) would deny relief, it would be unconstitutional as applied.1
1 Plaintiffs’ other proposed subclasses likewise do not seek a PLRA “prisoner release order.” Just as medical furlough does not implicate § 3626(a)(1)(3), neither does transfer to home confinement. Plaintiffs can further address the applicability of § 3626(a)(1)(3) to Subclasses 3-6 at a later stage. The currently-pending TRO/PI motion does not seek relief for these subclasses.
4

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 6 of 19 PageID #:375
A. Plaintiffs Do Not Seek a Release Order, But Rather a Process to Mitigate the Threat of COVID-19 for Medically Vulnerable Prisoners, Evaluate Their Suitability for Medical Furlough, and Transfer Eligible Prisoners
By its very terms, 18 U.S.C. § 3626(a)(3) applies only to an order “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.” § 3626(g)(4). Plaintiffs do not seek either of these things. Rather, they seek a process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly.
The plain language of Illinois’ prison furlough statute defines a furlough not as release from confinement or custody, but as an extension of “the limits of the place of confinement of a committed person under prescribed conditions.” 730 ILCS 5/3-11-1. Consistent with this concept, the Illinois Administrative Code treats prisoners on medical furlough as “committed persons,” governed by the Code’s “Authorized Absence” provisions. See 20 Ill. Admin. Code § 530.40. Prisoners on furlough are considered to remain under confinement for a variety of purposes, including election law and public benefits law. See 10 ILCS 5/3-5 (“Confinement . . . shall include any person convicted and imprisoned but granted a furlough as provided by Section 3-11-1 of the Unified Code of Corrections . . .”); Social Security Administration (SSA) Program Operations Manual System (POMS) PR 06805.016 Illinois (“a prisoner is considered ‘confined’ [] or ‘a resident of a public institution’ [] even if he is granted and/or released on a furlough, for purposes of suspension of benefits to prisoners”).
When transferred, these Plaintiffs will still remain in IDOC custody, though their location will have changed. By way of illustration, all of the IDOC prisoners who have COVID-19 and are on ventilators at outside hospitals are on “medical furlough” status. Although not inside of a
5

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 7 of 19 PageID #:376
specific correctional center, these people are still indisputably still in IDOC custody, as is clear from the IDOC profile of one these men, below:

K77218 - WILSON, JOSEPH

Parent Institution: Offender Status: Location:

STATEVILLE CORRECTIONAL CENTER MEDICAL FURLOUGH FURLOUGH

IDOC still considers furloughed or transferred prisoners as being within the IDOC

population, just as it would for someone who resides in the community on electronic monitoring

or who resides behind prison walls. Recent data shows that IDOC has approximately 1500-1700

prisoners on medical furlough status at any given time. See Ex. B, IDOC, Operations and

Management Report (OMR) Key Variables Fiscal Year 2020, 1.

The custodial status of furloughed prisoners is set forth in the nature and duration of

furloughs: the statute contemplates temporary relocation to “(2) to obtain medical, psychiatric or

psychological services when adequate services are not otherwise available.” 730 ILCS 5/3-11-

1(a)(2). Given the unique threat posed by COVID-19, furlough to a home setting—where social

distancing, the only established approved mechanism to avoid infection, can be practiced—falls

within the scope of the furlough statute. Once the threat posed by COVID-19 has been contained

or mitigated, IDOC can recall these individuals back to correctional centers. Indeed, the medical

furloughs Plaintiffs seek are necessarily temporary. 730 ILCS 5/3-11-1(a)(2) (authorizing IDOC

6

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 8 of 19 PageID #:377
to furlough a prisoner for a limited period of time for medical reasons). Plaintiffs do not seek a release from custody, and § 3626(a)(3) does not apply.
B. The PLRA’s Release Order Requirements for Mass Prisoner Releases and Population Caps Are Inapplicable Here
Although Plaintiffs do not seek a prisoner release order within the meaning of the PLRA, even if they did, because they do not seek a remedy for overcrowding, the circumstances of today’s pandemic are outside the scope of § 3626(a)(3). Both the plain language of the statute as a whole and the legislative history demonstrate that this provision is specific to federal court orders remedying violations primarily caused by overcrowding. See 18 U.S.C. § 3626(a)(3)(e) (limiting release orders to where “crowding is the primary cause of the violation of a Federal right”). The House Report accompanying the PLRA explained that it was intended to govern court imposed “prison caps.” H.R. Rep. No. 104-21, p.25 (1995).
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 Corr., 392 F. Supp. 3d 195, 209-10 (D. Mass. 2019) (citing Johnson v. Harris, 479 F. Supp. 333, 337-38 (S.D.N.Y. 1979) (ordering prison to either transfer prisoner to facility equipped to provide for his medical needs or to ensure he is provided with adequate care as remedy for prison’s deliberate indifference to his serious medical needs); see also 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”); see also 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) (allowing plaintiff’s claim for retaliatory transfer
7

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 9 of 19 PageID #:378
to go forward based on prison officials’ transfer of plaintiff to prison more poorly-equipped to handle his psychiatric needs).
For more than two decades, district courts have found that § 3626(a)(3) does not apply to orders remedying violations of federal rights other than overcrowding, even where that order requires prisoners to be moved out of their current facilities. In Doe v. Younger, No. 91-187 (E.D. Ky. Sept. 4, 1996), Op. and Order (attached as Ex. C) 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 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.”
In a case directly on point to the present situation, Plata v. Brown, No. C01-1351, 2013 WL 3200587, at *9 (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. Plata, 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
8

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 10 of 19 PageID #:379
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. In the context of the relief requested here, the PLRA’s legislative history review is not an academic exercise, but an imperative affirmation of this court’s broad equitable authority to order relief for Subclasses One and Two. “‘A statute should not be construed to displace courts’ traditional equitable powers ‘[a]bsent the clearest command to the contrary.’” Plata, 2013 WL 3200587, at * 9 (citing Gilmore v. California, 220 F.3d 987, 997 n.12 (9th Cir. 2000), 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)). As the PLRA’s legislative history demonstrates, 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 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.”). As both the Doe and Plata courts concluded, the PLRA does not preclude court orders to transfer medically vulnerable prisoners, which is the relief Plaintiffs seek here. 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’
9

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 11 of 19 PageID #:380
failure to comply with the terms of consent decrees designed to eliminate overcrowding.”) (citing Gilmore, 220 F.3d at 998 n.14); Doe v. Younger, attached as Ex. C, 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.”). Senators who supported § 3626’s restrictions did so explicitly in response to federal courts that were “dictat[ing] prison population size and order[ing] excess prisoners released.” 142 Cong. Rec. S10576-02, 1996 WL 522797 (remarks of Sen. Abraham). The record evinces the overriding intent to limit the capacity of federal judges to impose “prison population cap[s].” 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of Sen. Dole) (“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.”); see also 142 Cong. Rec. S3703-01, 1996 WL 188576 (remarks of Sen. Abraham) (the purpose of the PLRA was to end such judicial orders as “a program of wholesale releases of up to 600 criminal defendants per week to keep the prison population down to what the judge considers an appropriate level”); Margo Schlanger, Anti-Incarcerative Remedies for Illegal Conditions of Confinement, 6 U. Miami Race & Soc. Just. L. Rev. 1, 27-28 (2016) (collecting congressional testimonies and reports identifying federal court-imposed prison population caps as the target of the PLRA).
Plaintiffs do not seek such mass release orders or population caps. Instead, Plaintiffs seek an expedited, individualized review and re-location of those people who are medically vulnerable and more likely to have serious complications or to die if they contract COVID-19.
10

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 12 of 19 PageID #:381
The purpose of this expedited review is to evaluate their suitability for medical furlough or home detention—not release from IDOC custody. No court has ever held that relief of such deferential nature is in conflict with § 3626(a)(3).
C. The Doctrine of Constitutional Avoidance Requires the Court to Interpret § 3626 Consistently With the Relief Sought by Plaintiffs
Even if there were ambiguity about whether § 3626(a)(3) applies to the relief Plaintiffs seek, the doctrine of constitutional avoidance requires resolving that ambiguity in Plaintiffs’ favor. If § 3626(a)(3) is interpreted to preclude, or even to delay, relief sought by Plaintiffs in the face of an undisputed imminent risk of serious illness or death arising from a deadly virus, this provision would be unconstitutional as applied. Such an interpretation would unlawfully prevent courts from ordering relief urgently needed to protect prisoners’ lives and federal rights in the face of an unprecedented pandemic, 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 (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) (“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.”).
In the unique circumstances of the COVID-19 pandemic, requiring the § 3626(a)(3) procedures and precluding relief because Plaintiffs’ have not alleged that their rights are violated due to overcrowding, would be unconstitutional. Defendants here are well aware of the
11

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 13 of 19 PageID #:382
immediate risks to Plaintiffs’ lives and health from remaining in the congregate setting of prisons. See ECF No. 1, Complaint, ¶¶ 43-44. Every day of delay does not merely delay relief but increases the risk. At least two prisoners have already died. Reading the PLRA to prevent the courts from acting here would be unconstitutional, or at a minimum, raises serious constitutional concerns. Jones, 529 U.S. at 857 (courts should avoid statutory constructions that raise “grave and doubtful constitutional questions”) (internal quotation marks and citation omitted). III. The Relief Plaintiffs Seek in the Section 1983 Matter Satisfies the “Needs-
Narrowness-Intrusiveness” Requirements of § 3626(a)(1) & (a)(2) The urgency of the risk posed to medically vulnerable Plaintiffs by COVID-19 cannot be overstated. Continued incarceration of Plaintiffs in Subclasses 1 and 2 puts them at substantial risk of imminent contraction of and death from COVID-19, in violation of the Eighth Amendment and the Americans with Disabilities Act. Under the PLRA, any injunctive remedy must satisfy the “needs-narrownessintrusiveness requirement.” See Fields v. Smith, 653 F.3d 550, 558 (7th Cir. 2011). That means that a district court issuing a preliminary injunction must find that the relief (1) is narrowly drawn, (2) extends no further than necessary to correct the harm requiring preliminary relief, and (3) is the least intrusive means necessary to correct that harm. 18 U.S.C. § 3626(a)(2). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief.” Id. The “needs-narrownessintrusiveness” 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); see also Brown v. Plata, 563 U.S. 493, 531 (2011) (“Narrow tailoring requires a fit between the remedy’s ends and the means chosen to accomplish those ends . . . . The scope of the remedy must be proportional to the scope of the
12

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 14 of 19 PageID #:383
violation, and the order must extend no further than necessary to remedy the violation.”). The unique circumstances of the COVID-19 pandemic, and the particular risks it poses for the medically vulnerable, requires immediate furlough or transfer for Subclasses 1 and 2.
Accordingly, this Court must order IDOC to implement a process similar to one included in Sections 1 and 2 of in the Plaintiffs’ proposed Draft Remedial Plan, so that subclass members who pose no risk to public safety are transferred from facilities where the chances of contracting COVID-19 are incredibly high, to community placements where they can safely quarantine while remaining in IDOC custody. 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 enough, a factfinder can infer that a prison official knew about it and disregarded it.” (citations omitted).
A. Relief Sought by Plaintiffs is Narrowly Drawn The relief proposed in Plaintiffs’ Draft Remedial Plan is narrowly drawn both in scope and in substance. While Plaintiffs’ Section 1983 action is brought on behalf of all prisoners in the IDOC and six cognizable subclasses, they see preliminary relief for two subclasses only: those who are medically vulnerable due to age, and those who are vulnerable due to preexisting medical conditions. Urgent action is required to protect the lives of these prisoners by preemptively removing them from prison facilities before they contract COVID-19. The relief itself is also narrowly tailored to meet the particular characteristics and circumstances of the COVID-19 pandemic. As detailed more fully in Plaintiffs’ complaint, standards from the CDC and other public health experts indicate that all individuals, but
13

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 15 of 19 PageID #:384
particularly those who are medically vulnerable, should avoid close contact with people who are sick or who are or may be contagious even if asymptomatic. See ECF No. 1, Complaint, ¶¶ 3133. In Illinois prisons, Defendants have admitted that all aspects of daily life take place in a congregate setting making social distancing impossible. See id. ¶¶ 43-44. The only way for Defendants to ensure that medically vulnerable prisoners can keep their distance from others is by transferring them to a different environment.
B. Relief Sought by Plaintiffs Does Not Extend Further Than Necessary to Correct the Violation of their Federal Rights
The preliminary injunctive relief sought by Plaintiffs does not extend further than necessary to correct the constitutional violation at issue, given the nature of the violations of federal law and IDOC’s inability to remedy the serious risk of harm in any other way. While the court’s order for relief must be deliberately narrow to minimize intrusion into correctional operations, the relief ordered must also be sufficient to fulfill its function of remedying the violations at hand. See 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.”). Here, the violations at hand include imminent risk of contracting COVID-19, which could lead to serious medical complications and death. The only adequate remedy for medically vulnerable prisoners is medical furlough or transfer.
The very nature of Illinois prisons renders IDOC incapable of protecting the medically vulnerable subclasses from COVID-19’s spread if they remain within IDOC facilities. Illinois’ Director of Public Health has admitted that IDOC facilities do not have enough individual cells to isolate prisoners with confirmed cases of the virus, and that prisons “pose unique challenges in stopping the spread of disease and protecting the health of individuals who live and work there.” See ECF No. 1, Complaint, ¶ 43. If confirmed cases cannot be successfully quarantined within
14

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 16 of 19 PageID #:385
IDOC facilities, the only way the IDOC can protect the lives of these vulnerable individuals is by immediately furloughing or transferring them to a site outside the prison.
This Court cannot not wait for the virus to spread to each IDOC facility before identifying eligible class members and granting them medical furlough. Cf. Skinner v. Uphoff, 234 F. Supp. 2d 1208, 1218 (D. Wyo. 2002) (“Of course, the remedy ordered by this Court shall extend no further than necessary to correct the violation of the Federal right, but if it is necessary to enact systemic and prophylactic measures in order to correct the violations found to exist in this instance, the Court may do so.”). Once this dangerous virus enters the prison, it will spread rapidly from prisoner to prisoner and among staff. Catastrophe already has struck at Stateville, where the number of confirmed COVID-19 cases has grown exponentially in just a matter of days, sickening dozens of prisoners and staff and killing at least two prisoners. COVID-19 cases have now been confirmed among staff or prisoners at Stateville NRC, Menard, Logan, Danville, Sheridan, Graham, Joliet Treatment Center, and Kewanee. Action must be taken now to prevent devastation throughout prisons and prison communities across the state.
C. The Relief Sought is the Least Intrusive Means to Remedy the Violation Plaintiffs’ proposed relief wholly respects the discretion of the IDOC and requires relocation only for those individuals who have medical vulnerabilities to COVID-19 and pose no threat to public safety. This relief is authorized by state law and is the least intrusive means to protect the life and rights of the medically vulnerable Plaintiff subclasses. The Illinois legislature created medical furlough as a mechanism to allow for temporary change in confinement under special circumstances, and one would be hard pressed to find a more dire special circumstance than the current global pandemic. Under Illinois’ medical furlough statute, the IDOC is authorized to “extend the limits of the place of confinement of a
15

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 17 of 19 PageID #:386
committed person under prescribed conditions, so that he may leave such place on a furlough.” 730 ILCS 5/3-11-1(a). The COVID-19 pandemic has already claimed the lives of at least two Illinois prisoners and sent more than a dozen to a hospital intensive care unit. Medical furlough is an appropriately tailored remedy to protect the lives of prisoners who are most at risk of death from COVID-19 due to their age and preexisting medical conditions. IV. PLRA Has No Application to Petitions for Writs of Habeas Corpus
Petitioners request emergency action in their request for writs of habeas corpus; as in the Section 1983 suit, Petitioners seek immediate furlough or transfer of Subclasses 1 and 2. The PLRA has no application to a habeas petition. 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. U.S. Parole Comm’n, 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. Ill. 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”). This conclusion is fully supported by the two separate statutory schemes enacted by Congress to govern § 1983 actions (the PLRA) and habeas petitions (the AntiTerrorism and Effective Death Penalty Act). See Blair-Bey, 151 F.3d at 1041 (noting that the PLRA and AEDPA were enacted two days apart, “strongly suggest[ing] that Congress intended to make its changes to habeas proceedings via the AEDPA, and to alter procedure in prisoner civil rights litigation in the PLRA”).
16

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 18 of 19 PageID #:387

Dated: April 6, 2020

Respectfully submitted,
/s/Elizabeth Mazur One of the Attorneys for the Plaintiffs

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465

Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Avenue, Suite 300 Chicago, IL 60602 (312) 241-0020
Sarah Grady Steve Weil Loevy & Loevy 311 N. Aberdeen Street, 3rd Floor Chicago, IL 60607 (312) 243-5900
Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411

Counsel for Plaintiffs

17

Case: 1:20-cv-02093 Document #: 24 Filed: 04/06/20 Page 19 of 19 PageID #:388 CERTIFICATE OF SERVICE
I, Elizabeth Mazur, an attorney, certify that I served this pleading on all counsel of record by filing it through CMECF system.
/s/Elizabeth Mazur
18

Case: 1:20-cv-02093 Document #: 24-1 Filed: 04/06/20 Page 1 of 3 PageID #:389
PLAINTIFF’S DRAFT PROPOSED REMEDIAL PLAN RELATED TO THEIR REQUEST FOR A TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION
1. IDENTIFICATION OF INDIVIDUALS ELIGIBLE FOR IMMEDIATE TRANSFER TO FURLOUGH OR HOME DETENTION: Within three days of the date of the order, the Illinois Department of Corrections will identify all people in the physical custody of IDOC and who are vulnerable due to underlying medical condition or age, within these categories: i. People who have a pre-existing condition and have an increased risk of serious harm or death from COVID-19 as result of that condition. Pre-existing conditions include but are 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, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. ii. People who are medically vulnerable and have an increased risk of serious harm or death from COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
Within three days of identifying individuals eligible for furlough, or transfer, IDOC shall collect information from each individual for identifying potential host sites.
2. Within 7 days of the date of this order, the IDOC will use its discretion to transfer individuals identified pursuant to the above to medical furlough or home detention:
Every person identified pursuant to paragraph 1 of this order with an available host site will be removed from the correctional center via the mechanism determined by IDOC as most appropriate (such as medical furlough or transfer to home detention) unless the IDOC determines, with the approval of the special master, that an individual’s furlough or transfer would pose a substantial danger to the physical safety of an identifiable person or persons that outweighs the threat to the individual’s health and the public health threat posed by their continued incarceration. Assessment of the safety risk must be based on an

Case: 1:20-cv-02093 Document #: 24-1 Filed: 04/06/20 Page 2 of 3 PageID #:390
individualized analysis, and not categorical exclusions (except those excluded offenses for furlough or transfer mechanisms under the law). In the event that the IDOC rejects a furlough or transfer to home detention to any person identified in Paragraph 1, IDOC will document their justification with specific and individualized concerns including those related to the individual’s institutional history and background.
3. FORMATION OF THE COVID-19 EMERGENCY RECORD REVIEW TASK FORCE. Class Counsel will, at IDOC’s request, form a Task Force comprised of up to 150 pro-bono attorneys, legal assistants, social workers, law students and other qualified individuals, who report to the Special Master. The purpose of the Task Force is to assist the IDOC in conducting the record review necessary to effectuate the terms of this Order. The Task Force will function as follows: a. Class Counsel will work with the IDOC to recruit qualified Task Force Members, who have demonstrated high ethical standards and the requisite skills needed to contribute to the Task Force; b. IDOC will execute the required agreements to allow the Task Force to access and review the relevant records. This may include, but is not limited to, submitting an Agreed Order to this Court that will permit Task Force Members to review protected health information as permitted by the Health Insurance Portability and Accountability Act of 1996 Public Law 104-191 (1996) (“HIPPA”). Task Force Members shall work under the supervision and control of the Special Master and shall be required to execute requisite confidentiality agreements; c. Task Force members shall prepare one to two page summaries of the files of each individual reviewed regarding the individual’s medical condition, current disability, institutional record, relevant history and background. These summaries will be based on a form developed jointly by Class Counsel and the IDOC; d. The Class Counsel and the IDOC shall collaborate on the form and content of Task Force member training. No Task Force member shall begin their record review without first completing this training; e. IDOC will rely on the Task Force summaries to review each individual and make the decision required pursuant to ¶ 2. Nothing in this Agreed Order limits the IDOC’s authority to order furlough, transfer to home detention and/or release prior to the completion of any task force summary or separate from the process required by this Order.
4. Appointment of a Special Master. The Parties agree to the appointment of a Special Master, to be jointly selected by the parties. The Special Master shall have extensive experience in management and a general familiarity with corrections and/or the justice system and/or the public health system. The Special Master shall have the discretion to consult with individuals with expertise in corrections, public safety and public health, as needed. The Special Master shall have the following responsibilities:

Case: 1:20-cv-02093 Document #: 24-1 Filed: 04/06/20 Page 3 of 3 PageID #:391
a. Reviewing IDOC’s denial of medical furlough to any medically vulnerable person on the basis of public safety concerns. If the special master disagrees with the IDOC’s determination, the IDOC shall grant the individual medical furlough;
b. At the request of the IDOC, making recommendations about transfer, or furlough decision for any individual or groups of individuals;
c. Managing and overseeing the work of the Task Force, to include but not limited to establishing strict timelines and instituting quality control procedures;
d. Collaborating with Class Counsel to develop and distribute resources related to housing and public benefits for those who are furloughed pursuant to the terms of this Order and to deploy any resources and or/knowledge Class Counsel can offer to mitigate practical and logistical barriers.
e. Managing the IDOC host site approval process for all class members and ensuring that the process is efficient, fair and comports to the requirements of this Order.
5. CLASS COUNSEL ACCESS AND REPORTING. The IDOC shall provide to Class Counsel the names, IDOC numbers and facilities of every person in IDOC custody who is eligible for release, transfer and medical furlough under the terms of this Order, and shall provide Class Counsel with the names of any such person who it deems not eligible for relief under Paragraph 2 for any reason, including lack of a host site. The IDOC will further provide Class Counsel with the names and prisoner IDOC numbers of all people medically furloughed and/or transferred to home detention pursuant to this Order every 48 hours. The IDOC and Class Counsel will collaborate to seek and necessary HIPPA related orders from the Court to facilitate information sharing.

Case: 1:20-cv-02093 Document #: 24-2 Filed: 04/06/20 Page 1 of 2 PageID #:392

ILLINOIS DEPARTMENT OF CORRECTIONS

Operations and Management Report (OMR) Key Variables

Fiscal Year 2020

OMR Key Variable

JUL 2019 AUG 2019 SEPT 2019

Total Use of Chemical Agents

84

79

79

Use of Chemical Agent

65

55

62

Use of Chemical Agent - Offender Self Harm

19

24

17

Cell Extractions

41

29

23

Activation of Tactical Teams

118

57

79

Total Vehicle Searches

3,322

2,817

2,849

Total Non Staff Vehicle Searches

2,579

2,164

2,105

Total Staff Vehicle Searches

743

653

744

Vehicle Searches Resulting in Arrests

0

1

0

Visitor Restrictions

11

15

6

Total Lockdown Days

65

45

68

Incident Based Lockdown Days

48

36

62

Administrative Based Lockdown Days

17

9

6

Segregation Sentences: Reductions / Cuts - Number of Offenders

189

175

159

Segregation Sentences: Reductions / Cuts - Number of Days

5,522

5,849

5,346

Temporary Confinement Placements

787

790

694

Temporary Confinement End-of-Month Count

216

267

272

Investigative Status Placements

388

401

381

Investigative Status End-of-Month Count

127

136

127

Disciplinary Segregation Placements

645

573

590

Disciplinary Segregation Status End-of-Month Count

903

904

900

Administrative Segregation Placements

14

3

8

Administrative Segregation Status End-of-Month Count

134

111

109

Double-Celling Denials Issued by the Warden

72

51

80

Vulnerables

336

348

350

Predators

230

242

246

Vulnerable and Predator

79

83

81

Disciplinary Transfers of Inmates

153

111

151

Total Deaths

10

2

11

Expected Deaths

8

2

8

Unexpected Deaths

2

0

3

Offender Sick Calls

49,343

47,556

49,257

Hunger Strikes

160

141

114

Total Off-Site Emergency Room Visits

231

195

212

Total Off-Site Medical Furloughs

1,763

1,736

1,557

Number of Offenders Housed in Outside Hospitals

110

127

141

OCT 2019 68 57 11 25 88
3,003 2,087
916 0
12 40 40
0 180 13,037 876 308 411 145 642 913
8 102
97 339 238
78 106
13 8 5
48,709 129 185
1,788 127

NOV 2019 72 54 18 14 32
2,952 2,032
920 0
11 23 17
6 136 3,432 778 273 356 115 610 876
12 110
70 358 248
78 98
6 3 3 43,077 143 190 1,671 105

DEC 2019 73 53 20 15 91
3,030 2,032
998 0 5
46 17 29 143 7,044 786 272 370 136 603 792 24 120 51 347 227 75 65 13
7 6 41,976 122 205 1,721 131

Prepared by Planning and Research

Case: 1:20-cv-02093 Document #: 24-2 Filed: 04/06/20 Page 2 of 2 PageID #:393

Number of Days Housed in Outside Hospitals Physical Health - Average Daily Censes for Infirmary Services Infirmary Average Daily Census - Acute Infirmary Average Daily Census - Chronic Total Number of Admissions to the Infirmary Infirmary - End-of-Month Count in Permanent Housing Pregnancies Births Mental Health - Caseload Seriously Mentally Ill Caseload Total Crisis Watch Observations Crisis Watch - Continuous Watch Status Crisis Watch - Suicide Watch Status Crisis Watch - Offenders on Close Supervision Status Crisis Watch - Offenders on Periodic Check Status Suicide Ideation Suicide Attempt Inmate Self Harm Suicides Total Staff Total Staff Security Total Staff Non Security Total Staff Non DOC

387 260 174 167 370 136
11 1
12,020 4,931 742 72 341 159 170 415 22 156 0
11,604 8,863 2,741 1,683

498 266 186 183 393 135
13 2
12,071 4,888 693 89 302 153 149 386 33 85 0
11,635 8,868 2,767 1,460

603 273 182 187 390 151
12 1
12,372 4,973 648 69 285 163 131 382 27 82 0
11,861 9,018 2,843 1,643

END OF MONTH POPULATION/ADULT FACILITIES ONLY Note: The OMR is in Draft and Confidential status; they sometimes change after administrative review. Source: Operations and Management Report

38,238

38,244

38,135

Non-DOC Staff refers to the number of non-DOC (non-GRF) staff at the end of the month assigned to work at the facility, including contractors, Office of Adult Education, and ICI funded staff. Also includes drug treatment staff (TASC or similar), Educators and Vocational Instructors (through local Colleges or Office of Adult Education), regular Health Service providers (not those on PRN status only), etc. Does not include volunteers or vendors performing routine maintenance or service contracts (fire marshal, elevator inspectors, vending machine service persons, etc.).

610 271 186 196 394 149
7 5 12,706 4,887 567 44 248 131 147 290 23 81 1 11,765 8,962 2,803 1,591
38,003

563 280 180 195 348 165
8 1 12,694 4,841 566 43 233 138 152 297 27 73 1 11,874 9,064 2,810 1,643
37,798

598 286 116 204 339 159
6 1 12,887 4,756 628 50 303 140 135 345 25 62 1 11,355 8,621 2,734 1,566
37,291

Prepared by Planning and Research

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 1 of 16 PageID #:394

tnn'rED STATES DISTRICT COURT
EASTERN DISTRICT OP KENTUCKY AT COVINGTON

CIVXL ACTION NO. 91-187

JOBN DOB, BT AL
vs.

OPDllON AND ORDBR

DOH YOlJNGD, BT AL

EASTERN DISTRICT of KENTUCKY
FILED
SEP,~.. i996
AT COVINGTON LESLIE G. WHITMER ~LERK, U. S. DISTRICT COURT.
PLAINTIFFS
DEFENDANTS

This matter is before the court on defendant Kenton County'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 attorneys' 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 to file a petition for attorneys' fees is granted.
I
Plaintiffs initiated this civil rights .class action pursuant
to 42 u.s.c. §1983. They challenge the constitutionality of the
conditions of their confinement at the Kenton County Detention Center (KCDC) in Covington, Kentucky. After considering all
1

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 2 of 16 PageID #:395

evidence presented during a three day trial to the bench and considering all arguments made in post-trial briefs filed by the parties , the court entered its findings of fact and conclusions of law as well as an amended judgment on July 26, 1996. The parties seek alteration of portions of these documents.

TBB FINDINGS OP FACT AND CONCLUSIONS OF LAW WILL BE AMENDED
CONCBR.Nl:NG THE EXEMPTION FROM THE 15 DAY LIMJ:TATION ON LENGTH OF STAY
This case requires the court to balance significant conflicting interests -- the due process rights of incarcerated juveniles, the public's right to have juvenile crime and misbehavior addressed, and the separation of federal and state powers. As explained in the court's findings of fact and conclusions of law, the Kenton County Detention Center is clearly substandard in many respects. However, in the view of the 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 this facility for juveniles who do not have the benefit of adult

procedural protections, stating:

Plaintiffs ask the court to close this

~ci institution. After careful reflection, the
court has concluded.that such an ~fxt~e~~

ld violate the principles o JU 1.c1a

wo~traint and federalism. But the court has

~!so concluded that confining a juvenile_ there

or an extended period -.- more than fifteen

~lS) days unless there is probable cause to

believe that the juvenil~ can be ~reate~ as an

adult

c

h

d arge

with

a

crime -1

is punishment What one can

without due process of the aw.

2

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 3 of 16 PageID #:396

bear for a short period can be intolerable if
prolonged.

Doc. #447 at 2. The court's amended judgment provides, "That,

effective August 15, 1°0 6 ;7 ;7 ,

no J· uveni· 1e not i·ndicted for 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 concerning 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 revise its 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-02093 Document #: 24-3 Filed: 04/06/20 Page 4 of 16 PageID #:397

juveniles who have allegedly been in contempt

criminal proceedings.

of court, a r e not

See,~, In re Gault, 387 U.S. 1 (1967) ;

Kent v. United States, 383 u.s. 54 1 (

S. W.2d 195

1966); Young v. Knight. 329

{Ky. 1959); Alexander 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, li~e tha~ of other jurisdictions, is

rooted in social welfare philosophy rather

than in the corpus juris. Its proceedings are

designated as civil rather than criminal. The

Juvenile Court is theoretically engaged in

determining 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 st1gma~1zed

with a criminal record for acts committed

during minority. By providing young people

"th treatment oriented facilities rather than

=~mple punishment, antisocial behavior can be

modified and the offenders will develop as law

dtarboa1e· dds iint1igi·om1n·.catiltltihyzee

ns. However, constitutional
provided for a

S)=lch treatment
druilgthtos£tfhenadt earsre.

. 1 offenders are not afforded all the

Juven7t e tional rights that adult of~enders

cons~i u

are afforded only the right.to

rfeacier ivtree. atmTheenyt. • · · J. usti.ce systern reflects

Tthhei.sKpehnti.u1coksyophjuyv. eni~e

County pepart ment f- or HumaneSrv...;.ces v . carter, 795

Jefferson

and citations omitted) (emphasis

S.W.2d 59, 61 (Ky. 1990) (footnote

added).
Even so basic a work as American Jurisprudenc2ed, a primer of

4

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 5 of 16 PageID #:398

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

.

The pu~ose of juvenile court legi slation

1.s to provide for the disposition of deli n-

qu7nt, dependent, neglected, and abandoned

ch1.ldren 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 respect to the delinquent child the
philosophy of juvenile court laws is that the
juvenile is to be considered 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 lies at the very foundation of the statutory scheme.

4 7 Am. Jur. 2d Juvenile Courts and Delinguent 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 80 basic that one doubts if contrary assertions_are made in

good faith.~

2 Certainl denial of these basics would not be "warranted by exi~~ law or by a

.

y,

t r.or the extension modification or reversal of eXJstmg law or the

nonfrivolous argumen 1•

• '

establishment of new law." Fed. R C1v. P. ll(b)(2).

5

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 6 of 16 PageID #:399

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 f aci li ty, 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 require 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 requ1·.rement s 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 youthful offender, a juvenile must be accused of committing

•

3

certain serious crimes.

6

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 7 of 16 PageID #:400

The procedures by which it is determi'ned that

proceeded against as a youthful ff d

a ch• ild will be

o en er are contained in the

Kentucky Unified Juvenile Code. To initiate these procedures, the

county attorney must make a motion before the District court to

transfer the child to Circuit Court for treatment as a youthful offender.
KRS 635.020 and KRS 640.010(2).' 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 treatment as a youthful offender

have been satisfied. KRS 640.010(2) (a). The District Court then

considers a number of other factors concerning the circumstances

surrounding the offense, the child, and the public and determines

whether the child should be transferred to Circuit Court for treatment as a youthful offender. KRS 640. 010 (2) (b) .

felony offenses on two_s~par;telonoycciansiownhsich(KaRSfi6r3ea5r.0m20w(a3s))u; sed in
(c) a child charged wi~f a ewho was at least fourteen years old atht ethceomtmimisesioonf othfe thaelleoge~n~~mmission of the offense (KRS

:r 635.020(4));

d 'th a felony who previously had been

(d) a child charge wi

d (KRS 635.020(5)); and

convicted as a youthful offen hteen years old and is charged

w(ei)th aa pfeelrosnoyn wthhao t isocacut rlree~sptrio~ to his eighteenth birthday (KRS

635.020(7)).

4In

the

case

of

a

c hi'ld.

c

h

at r'

gleeda

swti'

th a four

felo teen

ny ye

in ars

wohldicha

t a

the

firearm was

used

and dowffheonsise, a KRS

0(4) 635.02

pHroovwiedveesr, foitr appears

time of the alleget as a youthful offender. that the county

~I!e automatic treatmenof KRS 640.010(1) and~~) child to Circuit
afrtotmorrtntheinye omlarundsgeurt to trai.gmgoetrionthetohteraar~isngfe~hateresults in the

~~~omatic transfer.

7

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 8 of 16 PageID #:401

Due to the serious consequences associated with treatment as
a youthful offender, it is common for the child's attorney to seek
additional time for investigation and preparation prior to the

trans£er hearing. At the telephonic hearing, the County Attorney,

Garry Edmondson, personally orally certified to this court that all

motions for transfer to the Circuit Court for treatment as a

youthful off~nder are and will be made in the good faith belief

that the facts support such a transfer. He also said he could make

the necessary good faith determination within the 15 days.

Based upon the County Attorney's representation and the fact

that it is impossible to ensure that a transfer hearing will commence within 15 days of incarceration without infringing the juvenile's right to adequate preparation and investigation, the

court concludes that its July 26, 1996 findings of fact 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

prosecutor has, in go~ faith~ fi~ed 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 l·.n the court's July 26, 1996 findings of fact and conclusions o f law or in the court ' s amended judgment filed that same day that are i~consistent with this statement shall

be vacated.
mos OP PACT AND CONCLUSIONS OF LAW ~LL
THBB:~BD TO TRACK LANGUAGE REQUIRED BY PRXSON LXTXGATION R.BPORM ACT OF 1995
8

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 9 of 16 PageID #:402

In its moti· on to alter or amend

the court did

, Kenton County contends that

ena t

not make specific findings required by the recently

c ed Prison Litigation Reform Act of 1995 and, therefore ,

Kenton

County

is

enti. tled

to

immediate

release

' from

the

prospective

relief provided by this court's July 26, 1996 amended J'ud

Kenton County' s argument is without merit.

gment.

The Prison Li·ti·gation Reform Act of 1995 provides, in part:

pTrhoe spceocutirvt e srhealilel f nuont le~r~: or app7ove any

such relief is narrowi8 e court finds that

f v l

uei. oartslhateti3r·:o-nnt rtuhosafi·nvethmeneeacFneessdsneaerracYyle

drtaown, coerxrtent ds ssrai.gryh tt,o acnodercre1.c.st

nh o ttthheee

violation of the Federal right.

1a u.s.c.A. §3626 Ca) (l.) (A) (1996). The Act further provides for

termination 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 violat~on _of the
1 . tiffs, Federal constitutional right to

th:ind~e process o:celsa;.; anio i~o:::ctle~:~

intrusive meansat nFederafYright. The court

violat:ion of bt~ ntial weight to any. adverse

has 91ven au.but', a safety or the oper~tion ~f a

impact on P ic

d by this relief•

criminal justiice sy~te~~a~~~ordance with the

This finding s ma e

9

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 10 of 16 PageID #:403

Prison
U.s.c.

Litigati.'on
§3626 (a} (1).

Reform

Act

of

1995,

18

THE

C O U R TO' SRDAME,, NDED

JUD~-
'-7£·~-.,1,,

IS

NOT

A

"PRISONER

RELEASE

BR WITHIN THE MEANING OF THE PLRA

Kenton County's final contention is that the court's July 26, 1996 amended judgment constitutes a ~prisoner release order" as

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

provisions concerning prisoner release orders and in view of the

legislative history underlying those provisions. 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." 18 u.s.c.A. §3626(a) (3) {E) (1996). In addition, the House Judiciary committee's report provides:
subsection (a) {2): Prison population reduction relief

10

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 11 of 16 PageID #:404

To fh ilsa ss tu br s e c

t· ion

makes

prison

only if t~:ort,. permitting a c:;pto ~he. remedy

i s•

the

"pP;t'l.soner proves. 1) thate imposed

rimary" c

•

crowding

vio1 ation; and 2} tha:use of the federal

<;ure the violatio

no other remedy will

imposed in recogn!t·. These requirements are

ef;ects prisoner

of prison releases

r

~1~~nsdofantdhet

severe, he acco

adverse mpanying

e*i; *on to meet the caps .

i:a By requiring that a 1 . . .
actual violation of b·aint1ff.1nm~te prove an based on the alle const1.tut1.o~al rights

subsection will end lh overcrowding, this

imposing p ·

e current practice of

complained :;;on caps. when inmates have . d. . ut the prison conditions but the

p~esi ing ~udgE; has made absolutely no finding

o~~

unconstitutionality or even held the allegations. In ordering or

any t. 1 appro!f~g

ese caps, some judges now oversee hu

program, of releases to keep the p r ~

12opulat1.on down to whatever that · a

considers an appropriate level.

JU ge

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 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. In the case a t bar, the court ordered that children-- other

than those for whom the county attorney has filed a motion for

as a youthful offender--not be

transfer to Circuit Court incarcerated in t he barren KCDC for more than 15 days.

The court's

11

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 12 of 16 PageID #:405

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, ~ . 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.

THE COMMONWEALTH DBPBNDANTS' 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#) raise

three contentions in their motion to alter or amend the court's

I
July 26 , l996 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

Prima,.,, •.z

authority

to

operate

the

detention

center.

12

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 13 of 16 PageID #:406
For purposes of cl · f • ari. ication, the court notes that "state" is used
in the section 1983 sense of off1.·c1'als acting under color of state
law and this included the Commonwealth defendants and the 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 ~supervisen the KCDC, but they admit that the Commissioner has the authority to -monitorw and •inspectn 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 in 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
they were ever approved by the· state fire marshal.n ~ doc. #447
at 28 . As the court specifically reserved ruling on the fire saf ety i ssue unt 1• 1 a court-appointed fire expert could be retained,
13

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 14 of 16 PageID #:407

there is no need to revisit

safety issue at this time.

the evidence surrounding the fire

Therefore I

the court bei'ng a dv.ised,

1:T IS HEREBY ORDERED as follows:

1.
judgment

That Kenton County's motion to alter, amend and vacate

(do #4s

c.

0-1) be, and it is, hereby granted as to the

determination of what juveniles are exempt from the fifteen day
limitation period. The court's July 26, 1996 findings of fact and

conclusions of law and amended judgment are hereby modified to
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 relief ordered in this case is narrowly draW1!, 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 Federal right. The court has given substantial weight to any. adverse impact on public safety or the oper~tion ~fa criminal justice system caused by this !elief. This finding is made in accordance with the
14

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 15 of 16 PageID #:408

UPr.sis.ocn.

Litigati'on §3626 (a) (1);

Reform

Act

of

1995,

18

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

amend and vacate J'udgment (d

#

oc, 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, and it is, 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 l{?fi: day of September, 1996.
~d)N&o-~
WLIAMO. BERTELSMAN, CHIEF JUDGE

15

Case: 1:20-cv-02093 Document #: 24-3 Filed: 04/06/20 Page 16 of 16 PageID #:409
F I L E COPY 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. aonar

D certificate of Mailing by

II,\~

 
 Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 1 of 49 PageID #:453

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

MONEY, et al.,
Plaintiffs, v.
PRITZKER, et al.,
Defendants.

)

)

)

No. 20 cv 2093

)

)

)

)

)

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

1

Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 2 of 49 PageID #:454
TABLE OF CONTENTS I. Defendants’ List of Steps They Are Taking In Response to COVID-19 Demonstrates
Why Subclasses 1 and 2 Need Relief From This Court ......................................................1 II. Plaintiffs’ Motion for a TRO/PI Should Be Granted ...........................................................5
A. Subclasses 1 and 2 Are Likely To Succeed on The Merits of Their Claims ...........5 1. The Claims of Subclasses 1 and 2 are Not Procedurally Barred ......................5 a. Subclasses 1 and 2 Do Not Seek a § 3626 “Prisoner Release Order” .........5 b. The Claims of Subclasses 1 and 2 are not Heck Barred ..............................7 c. Rizzo Abstention Does Not Apply .............................................................12 d. Defendants Will Lose an Exhaustion Affirmative Defense.......................15 2. Subclasses 1 and 2 Have Pled a Plausible Eighth Amendment Claim ...........16 a. Deliberate Indifference Does Not Require Plaintiffs To Prove Defendants Subjectively Intend to Harm Them............................................................16 b. The Continued Placement of Medically Vulnerable Plaintiffs in Highly Dangerous Settings Where Safety and Health Standards Cannot Be Achieved Meets the Deliberate Indifference Standard ..............................17 c. The Court Need Not, and Cannot, Wait for the Named Plaintiffs to Test Positive for COVID-19 to Act ...................................................................19 3. Subclass 1 Has Pled a Plausible ADA Claim ................................................19 a. Plaintiffs are Otherwise Qualified .............................................................21 i. Members of Subclass 1 are Otherwise Qualified for the IDOC Program/Service at Issue: Safe Custody ..............................................22 ii. Plaintiffs are also “Otherwise Qualified” and Eligible for Medical Furlough ...............................................................................................23 b. Disparate Impact ........................................................................................25 c. Plaintiffs State a Meritorious Discrimination Claim for Failure to Accommodate ............................................................................................26
ii

Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 3 of 49 PageID #:455 B. Plaintiffs Have Demonstrated That They Face Irreparable Harm .........................29 C. The Balance of Equities Weighs in Favor of Plaintiffs .........................................31
III. The Court Should Preliminarily Certify Subclasses 1 and 2 .............................................33 A. Plaintiffs Seek Preliminary Class Certification for the Limited Purpose of Ensuring that Emergency Relief Benefits Each Member of Subclasses 1 and 2 ........................33 B. Plaintiffs Have Proffered Sufficient Evidence To Carry Their Burden Under Rule 23 ........................................................................35 C. Plaintiffs Meet the Commonality and Typicality Requirements of Rule 23 ...............40
iii

Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 4 of 49 PageID #:456
TABLE OF AUTHORITIES
Abdi v. Duke, 280 F. Supp. 3d 373 (W.D.N.Y. 2017) ..................................................................35 Alexander v. Choate, 469 U.S. 287 (1985) .............................................................................22, 28 Arenas v. Georgia Dep’t of Corr. (S.D. Ga. Feb. 20, 2018) .........................................................23 Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002) .....................................................22 Basank v. Decker (S.D.N.Y. 2020) ...............................................................................................37 Billman v. Ind. Dep’t of Corr., 56 F.3d 785 (7th Cir. 1995)..........................................................17 Boykin v. Dixon Mental Health Servs., No. 16-CV-50160 (N.D. Ill. Oct.15, 2018) .....................15 Boykin v. Fischer, No. 16-CV-50160 (N.D. Ill. Nov. 18, 2019) ...................................................15 Braggs v. Dunn, 317 F.R.D. 634 (M.D. Ala. 2016).......................................................................40 Brown v. Budz, 398 F.3d 904 (7th Cir. 2005) ...............................................................................31 Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001)..........................................................................20 Conway v. Wagnor, No. 19-CV-036 (S.D. Ill. Jan. 14, 2019) .......................................................15 Cook v. Rockwell Int’l Corp., 151 F.R.D. 378 (D. Colo. 1993) ....................................................41 Cornille v. Lashbrook, No. 19-CV-002 (S.D. Ill. Jan 30, 2019) ...................................................15 Courthouse News Services v. Brown, 908 F.3d 1063 (7th Cir. 2018) ..................................... 14-15 Cox v. Mass, Dep’t of Correction, 18 F. Supp. 3d 38 (D. Mass. 2014).........................................23 Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931 (N.D. Ind. 2009).........................................29 Dixon v. County of Cook, 819 F.3d 343 (7th Cir. 2016)................................................................17 DL v. D.C., 860 F.3d 713, 726 (D.C. Cir. 2017)............................................................................40 Doe v. Trump, 418 F. Supp. 3d 573 (D. Or. 2019) ........................................................................39 Edwards v. Balisok, 520 U.S. 641 (1997) .......................................................................................8 Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) ...................................................................41 Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................................ 17-18 Farnam v. Walker, 593 F. Supp. 2d 1000 (C.D. Ill. 2009) ...........................................................29 Fish v. Kobach, 189 F. Supp. 3d 1107 (D. Kan. 2016 ..................................................................35 Flynn v. Doyle, 630 F. Supp. 2d 987 (E.D. Wis. 2009) ................................................................29 Franco-Gonzales v. Napolitano, No. CV 10-02211 DMG DTBX (C.D. Cal. Nov. 21, 2011) ....41 FTC v. Lifewatch Inc., 176 F. Supp. 3d 757 (N.D. Ill. 2016) .......................................................36 Gonzalez-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010)...........................................................11 Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402 (6th Cir. 2012) .................................35 Graham v. Broglin, 922 F.2d 379 (7th Cir. 1991) ............................................................10, 30, 39 Gray v. Hardy, 826 F.3d 1000 (7th Cir. 2016) ..................................................................16, 19, 38 Greeno v. Daley, 414 F. 3d 645 (7th Cir. 2005) ......................................................................16, 20 Harris v. Graddick, 593 F. Supp. 128 (M.D. Ala. 1984) ..............................................................34 Heck v. Humphrey, 512 U.S. 477 (1994) .................................................................................. 7-10 Helling v. McKinney, 509 U.S. 25 (1993)................................................................................17, 20 Hernandez v. Dart, 814 F.3d 836 (7th Cir. 2016)..........................................................................16 Ill. League of Advocates for the Developmentally Disabled v. Ill. Dept. of Human Services (N.D. Ill. 2013) .............................................................................. 34 Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894 (7th Cir. 1999) ......................................................41 Jones et al, v Wolf et al. (W.D.N.Y. 2020) ...................................................................................29 Jones’El v. Burge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001) ........................................................38 Kaba v. Stepp, 458 F.3d 678 (7th Cir. 2006) .................................................................................15 LaBrec v. Walker, 948 F.3d 836 (7th Cir. 2020) ...........................................................................18
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Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 5 of 49 PageID #:457
LaForest v. Former Clean Air Holding Co., 376 F.3d 48 (2d Cir. 2004) ....................................35 Lee v. Orr (N.D. Ill. 2013) ............................................................................................................34 Ligon v. City of New York, 288 F.R.D. 72 (S.D.N.Y. 2013) .........................................................34 Maddox v. Love, 655 F.3d 709 (7th Cir. 2011) .............................................................................15 Malam v. Adducci,(E.D. Mich. 2020) ...........................................................................................38 Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036 (9th Cir. 2012) ............................34 Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000) ........................................................................11 Morrison v. Heckler, 602 F. Supp. 1485 (D.C. Minn. 1985) ........................................................34 Muhammad v. Close, 540 U.S. 749 (2004).................................................................................. 7-9 Muhammad, Nelson v. Campbell, 541 U.S. 637 (2004) ............................................................ 9-10 Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002) ...22 Orr v. Shicker, -- F.3d -- (7th Cir. 2020) ......................................................................................30 Oshana v. Coca-Cola, Co., 472 F.3d 506 (7th Cir. 2006) .............................................................42 Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) ...............................................................17, 19 Phipps v. Sheriff of Cook Ctny., 249 FRD 298 (N.D. Ill. 2008) ....................................................30 Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999) .........................................................................10 Plata v. Brown, 563 U.S. 493 (2011).............................................................................................14 Plata v. Newsom, No. 01 C 1351 .....................................................................................................6 Preiser v. Rodriguez, 411 U.S. 475 (1973)............................................................................ 7-8, 13 Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) ..................................................................28 Ramirez v. Young, 906 F.3d 530 (7th Cir. 2018) ..........................................................................16 Rench v. TD Bank, N.A. (S.D. Ill. Jan. 2, 2018) ............................................................................40 Rizzo v. Goode, 423 U.S. 362 (1976)....................................................................................... 12-15 Robert L. Meinders D.C., Ltd v. Emery Wilson Corp. (S.D. Ill. June 21, 2016) ...........................40 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) .....................................................................41 Rodriguez v. Providence Community Corrections, Inc.,
155 F. Supp. 3d 758 (M.D. Tenn. 2015) ...........................................................................35 Ross v. Blake, 136 S. Ct. 1850 (2016) ...............................................................................12, 15, 19 Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020) (en banc)....................................................... 9-10 SEC v. Cherif, 933 F.2d 403 (7th Cir. 1991) .................................................................................35 Sellers v. Henman, 41 F.3d 1100 (7th Cir. 1994) .........................................................................19 Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000)............................................................................19 Sinn v. Lemmon, 911 F.3d 412 (7th Cir. 2018)..............................................................................18 Skinner v. Switzer, 562 U.S. 521 (2011) ..........................................................................................9 Spano v. The Boeing Co., 633 F.3d 574 (7th Cir. 2011)................................................................40 Thakker et al v. Doll (M.D. Pa. 2020) ..........................................................................................37 United States of America v. Cubie (E.D. Wis. 2020) ....................................................................37 United States v. Davis (D. Md. 2020) ...........................................................................................38 United States v. Fellela (D. Conn. 2020) ......................................................................................37 United States v. Perez (S.D.N.Y. 2020).........................................................................................37 United States v. Ramos (D. Mass. 2020) .......................................................................................37 United States v. Rodriguez (E.D. Pa. 2020) ..................................................................................37 Vance v. Peters, 97 F.3d 987 (7th Cir. 1996) ................................................................................17 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ...................................................................41 Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181 F.3d 840 (7th Cir. 1999)...................21 Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983) .....................................................................19
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Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 6 of 49 PageID #:458
Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012) ............................................................................14 Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) .......30 Wilkinson v. Dotson, 544 U.S. 74 (2005) ........................................................................................9 Woodford v. Ngo, 548 U.S. 81 (2006) ..........................................................................................15 Yahoo Mail Litig., 308 F.R.D. 577 (N.D. Cal. 2015) ....................................................................41 Young v. Cnty of Cook, No. 06 C 552 (N.D. Ill. Apr. 25, 2007) ...................................................42 Statutes 18 U.S.C. § 3626 .............................................................................................................................5 18 U.S.C. §3626(a)(1)(A) .............................................................................................................13 18 U.S.C. §3626(a)(1)(B) ..............................................................................................................14 20 Ill. Admin. Code § 504.810(b). ................................................................................................13 42 U.S.C. § 12131(2) ..............................................................................................................21, 23 730 ILCS 5/3-11-1(a)(2) ...............................................................................................................23 28 C.F.R. §§ 35.130(b)(7) .............................................................................................................34 75 ILCS 5/3-11-1 ..........................................................................................................................36 Fed. R. Evid. 201 ...........................................................................................................................37
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Rather than confront the grave danger that thousands of sick and elderly people in IDOC’s custody are currently facing, defendants present the Court with misleading, inaccurate, and incomplete argument and urge the Court to do nothing. Most notably, defendants repeatedly mischaracterize the relief plaintiffs are seeking, suggesting that plaintiffs seek to unleash a tsunami of dangerous “felons” on unwitting communities, when in reality no such thing is true. Defendants also assert that they cannot possibly be found deliberately indifferent to plaintiffs because they have taken some minimal action to benefit some prisoners, but that the law does not support that conclusion. Finally, defendants completely fail to consider the public’s strong interest in avoiding clusters of COVID-19 outbreaks in Illinois prisons, the effects of which could be catastrophic on prison communities. As explained in further detail below, defendants’ arguments are unavailing, and plaintiffs’ motion should be granted. I. Defendants’ List of Steps They Are Taking In Response to COVID-19 Demonstrates
Why Subclasses 1 and 2 Need Relief From This Court At the outset, defendants ask the Court to take judicial notice of a long series of bullet points, see Doc. 26 at 3-6, that they claim demonstrate that they are acting “quickly and aggressively to combat COVID-19.” While plaintiffs acknowledge that defendants are taking many of the actions they list, defendants are simply not moving quickly or broadly enough protect members of the plaintiff class from the high risk of serious (and possibly fatal) harm they face as the COVID-19 spreads through the prison system. At this point, defendants have transferred only 515 prisoners inside of prison facilities, a number that is less than 2% of the Illinois prison population.1
1 Defendants also use the figure 1,000 people released, but that is misleading. They refer to the drop in the total prison population from March 2 through April 6. See Doc. 26 at 4. The fact is that most of this drop simply reflects the natural fluctuation in prison population as new prisoners arrive and old prisoners are released in the ordinary course.
1

Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 8 of 49 PageID #:460 In the meantime, the number of confirmed COVID-19 cases among people in the custody
of IDOC has mushroomed from zero cases on March 25 to 101 cases on April 6, and the rate of increase continues to climb; the very day defendants filed their brief, the number of confirmed cases among prisoners skyrocketed from 62 to 101, by far the largest increase to date. None of this is surprising, as defendants themselves have acknowledged, and at this rate, by next week, the number of new COVID-19 cases among prisoners will outstrip the number of releases. What the defendants list of “actions” demonstrates is not that they are acting expeditiously to protect plaintiffs, but rather that Court’s intervention is necessary to prod the defendants to act more quickly, to prevent a looming humanitarian disaster in our prisons of unprecedented proportions. The graph below reflects IDOC’s reported cases from Stateville alone over the past several days, portending a bleak future.
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Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 9 of 49 PageID #:461
According to the New York Times, Stateville Correctional Center has the twelfth-largest known cluster of COVID-19 cases in the country. See Exhibit A (Coronavirus in the US: Latest Map and Case Count, N.Y. Times, visited April 8, 2020).
Throughout their brief, defendants attack plaintiffs for not supporting their motion with evidence (which of course, plaintiffs actually did, with a series of sworn declarations from nationally recognized experts, among other things), yet defendants provide no evidence at all to support any of their assertions about what they are doing. Many of the defendants’ assertions are vague, misleading, or overstated, and certainly not susceptible to being judicially noticed.
The most glaring example is defendants’ assertion that the Prisoner Review Board (PRB) continues to hold hearings on alleged parole violations, Doc. 26 at 5. In fact, the PRB canceled its parole revocation hearings at Stateville last week and has provided no information about whether those hearings will be rescheduled. See Exhibit B (Adam Kaney declaration). Stateville is where the vast majority of parolees are held pending their hearings. This cancellation means that parolees are confined to IDOC based solely on allegations, without any determination of whether those allegations are true, and even if true, whether the violations are sufficiently serious to warrant revocation of parole. These individuals now face a serious risk of harm solely, which is exactly what deliberate indifference looks like.
Similarly, defendants tout the fact that the Governor continues to review and grant commutation petitions, see Doc. 26 at 3, yet they cite only one example of an individual released to parole who had been convicted of possession of marijuana. One petition (or even a handful of petitions) granted comes nowhere near meeting the scope of the emergency. Furthermore, defendants admit, see Doc. 26 at 5, that the PRB cancelled its April clemency docket in its entirety. And whatever clemency petitions may be granted will almost certainly be only for those
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prisoners fortunate enough to have a legal advocate lobbying individually on their behalf. Most prisoners are not so lucky.
More generally, defendants fail to provide the Court with any details regarding their alleged efforts to protect members of the plaintiff class. They provide no detail as to how many people have been released using each of the mechanisms they discuss, what criteria they are applying, how many people are reviewing prisoners for release, how many prisoners are in the pool of people they are reviewing, how that pool was selected, how long they expect the process to take, or whether there is any prospect that the rate of release will increase over the next few days. They also provide no explanation for why people like named plaintiffs William Richard and Carl Reed are still in IDOC custody—both are extremely medically vulnerable, are near the end of their sentences, and have safe homes waiting for them in the community. Without these details, what the defendants have provided is a list of the mechanisms they could use to protect members of the putative plaintiff class from harm, rather than evidence that they actually are protecting plaintiffs.
Illinois law provides defendants with the tools they need to protect plaintiffs from serious risk of harm. However, what their laundry list of tools, coupled with the paucity of results, demonstrates is the desperate need for the court to intervene to prod the defendants to actually make use of these tools to protect as many of the plaintiffs as possible—and particularly the members of subclasses 1 and 2 which are the subject of the motion currently before the Court— before it is too late. II. Plaintiffs’ Motion for a TRO/PI Should Be Granted
Defendants’ attacks on the currently-pending motion are based largely on strawman arguments, without regard to the fact that the relief plaintiffs seek on the pending TRO/PI motion
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is limited. As plaintiff has explained in prior briefing, the currently-pending motion seeks relief on behalf of subclasses 1 and 2 only. See Doc. 24. Likewise, plaintiffs do not ask this Court to put every member of these subclasses out on the street without individualized safety assessments. To the contrary, plaintiff have proposed a remedial plan, see Doc. 24-1, that affords defendants significant deference to make safety assessments and approve host sites. With that reality in mind, plaintiffs address defendants’ specific arguments below.
A. Subclasses 1 and 2 Are Likely To Succeed on The Merits of Their Claims Defendants advance three sets of arguments as to the likelihood that plaintiffs will succeed on the merits of their claims. First, defendants contend that plaintiffs’ claims are procedurally barred. Second, defendants contend that plaintiffs’ Eighth Amendment claim fails because plaintiffs cannot establish deliberate indifference. Third, defendants contend that plaintiffs’ Americans with Disabilities Act (ADA) claim fails. Defendants are wrong on each of these points, as plaintiffs explain.
1. The Claims of Subclasses 1 and 2 are Not Procedurally Barred At the outset, defendants argue that several procedural hurdles block plaintiffs’ claims entirely, but careful examination shows that these hurdles either do not exist at all or else plaintiffs easily clear them.
a. Subclasses 1 and 2 Do Not Seek a § 3626 “Prisoner Release Order” Defendants’ first argument is that plaintiffs have not and cannot meet the requirements for obtaining a “prisoner release order” as that term is defined in 18 U.S.C. § 3626. For all the reasons plaintiffs already set forth in prior briefing, see Doc. 24, which plaintiffs incorporate by reference, plaintiffs are not seeking a “prisoner release order.” Without repeating all of those arguments here, plaintiffs make only a few points in reply.
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First, this case is not about prison overcrowding. Defendants use the word “crowding” as if this statute is simply referencing congregate settings. That is not correct; overcrowding refers to facilities housing more people than they have the capacity to house, such as that which ultimately resulted in the Brown v. Plata case, as well as significant litigation throughout the 1980s/90s challenging unconstitutional conditions of confinement that result from overcrowding and caused federal courts to order population caps as a remedy. In contrast, here, the facilities where plaintiffs are housed are all operating within their operational capacity (according to IDOC’s own website), including Stateville. The issue is not overcrowding, but the inherent congregate, or communal, nature of prison housing and daily life activities which, like nursing homes, make them susceptible to contagion.
Contrary to defendants’ argument, Doc. 26 at 14, the three-judge panel did not hold otherwise in its decision last week in Plata v. Newsom, No. 01 C 1351. See Exhibit C (Apr. 4, 2020 Order), Doc. 361. In that case, the plaintiffs asked their existing three judge court, which has been in place for at least a decade, to modify the existing order to require further population reductions to protect against the threat of the coronavirus. The court declined to do so, not for the reasons defendants argue, but because modifying the existing order was only allowable as needed to remedy the underlying constitutional violations that the original order addressed. Preventive measures responsive to the outbreak do not, however, relate to the overcrowding orders, “but rather new relief based on the new threat of harm posed by COVID-19.” Id. at 7. The court went on to explain, “the harm Plaintiffs face is not dependent on the existence of a constitutionally inadequate health care delivery system is strong evidence that it is rooted in a
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significantly different underlying cause than what was before us in the prior three-judge court proceedings.” Id. at 8.2
Second, defendants’ argument about the application of section 3626 mischaracterizes plaintiffs’ request for relief. As already explained, plaintiffs do not seek an order immediately releasing 16,000 people from IDOC custody. Instead they seek a process through which IDOC expeditiously evaluates subclass members for medical furlough and then uses its discretion to transfer those subclass members who are particularly vulnerable to COVID-19 and who can safely quarantine in their home communities. See Doc. 24-1.
b. The Claims of Subclasses 1 and 2 are not Heck Barred Defendants next contend that plaintiffs’ claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). This argument misunderstands the Heck case line and misconstrues the relief sought by subclasses 1 and 2. Because these subclasses do not seek relief from any criminal conviction or speedier release from custody, their suits are not barred by Heck. Instead, their requests to be removed temporarily from highly dangerous settings where their health and lives are in imminent danger are classic conditions of confinement suits, which the Supreme Court’s decision in Muhammad v. Close makes clear are not barred by Heck. See Muhammad v. Close, 540 U.S. 749 (2004). A brief review of the Heck case line illustrates why the relief sought by the subclasses is not barred. Starting with Preiser v. Rodriguez, the Supreme Court held that when a state prisoner challenges “the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” 411 U.S. 475, 500 (1973). The
2 Also noteworthy is that as of the time of this decision, the California DOC was planning to release around 6,500 prisoners over the coming weeks. Id. at 6.
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Court’s concern throughout the whole Heck case line is that the types of relief typically sought via habeas corpus cannot be sought via section 1983 prior to favorable termination of the criminal case. Specifically, there are two types of relief typically sought via habeas corpus that are barred in section 1983 actions by the Heck case line: (1) relief from a criminal conviction; and (2) speedier release from custody. See Heck, 512 U.S. at 484-85 (extending Preiser to damages actions “challenging the validity of outstanding criminal judgments . . . that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement”); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (extending the rule to prison disciplinary proceedings, where the section 1983 suit “necessarily impl[ies] the invalidity of the punishment imposed”).
Defendants assert that plaintiffs “are challenging the fact of their current confinement,” Doc. 26 at 18, but to characterize the relief sought by the subclasses that way misconstrues the scope of Heck, the relief sought by the Plaintiffs, or both. When the Supreme Court says repeatedly in the Heck case line that plaintiffs cannot use section 1983 to challenge the “fact or duration” of their confinement, it plainly means that section 1983 cannot be used to set aside an extant criminal (or disciplinary) judgment or to secure a speedier release from ongoing custody. It does not mean that all suits that relate to the fact of confinement are barred by Heck, a point the Court made crystal clear in Muhammad v. Close, 540 U.S. 749 (2004), which summarized the rule as follows:
In Heck . . . we held that where success in a prisoner’s section 1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence.
* * * Heck’s requirement to resort to state litigation and federal habeas before § 1983 is not, however, implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.
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Id. at 751. Accordingly, where a suit challenges the conditions of prison confinement—and not the validity of a conviction or the length of custody—the Heck bar simply does not apply. See Savory v. Cannon, 947 F.3d 409, 422-23 (7th Cir. 2020) (en banc) (discussing Muhammad and reaffirming that section 1983 challenges “related only to the conditions of confinement and that do[] not implicate the validity of the underlying conviction or the duration of the sentence . . . is not subject to Heck’s favorable termination requirement”).
Here plaintiffs challenge only the conditions of their confinement. They contend that if they are not furloughed or moved out of the congregate prison population during this emergency, they will suffer catastrophic health consequences, including death. Critically, they do not seek relief from the underlying criminal judgments that are the basis for their incarceration or any adverse disciplinary ruling. Nor do they seek speedier release from custody. Properly construed, the relief requested if granted will not require this Court to set aside any state criminal conviction or shorten any state custody. Because the relief that plaintiffs seek does not necessarily require invalidation of their criminal convictions or any shortening of their ongoing sentence, Heck does not apply, just as the Heck bar did not apply to bar the suits in Muhammad, Nelson v. Campbell, 541 U.S. 637 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and Skinner v. Switzer, 562 U.S. 521 (2011).
Defendants’ argument that cases seeking medical furloughs are barred by Heck would eliminate large portions of this Court’s docket. The plurality of cases filed by prisoners in Illinois include a claim about lack of proper medical care. In many of those cases, the relief sought is referral to an outside specialist, an operation, or hospitalization for some other procedure. Each such outside hospitalization is a “medical furlough” as the prisoner is temporarily somewhere other than an IDOC prison for medical purposes. The relief sought in the current motion is no
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different in kind (although the relief is sought for a class, rather than an individual). Plaintiffs seek nothing more than a process through which they can be evaluated for temporary relocation to a site where they can practice social distancing, isolation, shelter in place, and all of the other requirements established by defendant Pritzker and others as means of staying safe and slowing the spread of the coronavirus. If defendants’ arguments were accepted, every prisoner who sought outside medical treatment would be required to file a federal habeas corpus action. That is not what Heck requires.
None of the cases cited by defendants say otherwise. The Seventh Circuit sitting en banc recently reiterated the rule of Muhammad, reaffirming its decisions that hold that a challenge to conditions of confinement that does not spell invalidation of a conviction or speedier release from custody is not barred by Heck. Savory, 947 F.3d at 422-23.
Defendants’ reliance on Graham v. Broglin, 922 F.2d 379, 380-81 (7th Cir. 1991) is misplaced. In Graham, the court held that a prisoner suit brought to “shorten the term of [] imprisonment” must be brought under habeas corpus, because the prisoner “is challenging the state’s custody over him.” 922 F.2d 379, 380-81 (7th Cir. 1991). But, if a prisoner is seeking a different “location or environment,” section 1983 is proper. Id. at 381. In other words, Graham supports plaintiffs’ position, not defendants’ position. Defendants’ reliance on Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999) is likewise misplaced. Doc. 26 at 20. In Pischke, prisoners challenged a Wisconsin statute allowing the state to transfer them to private prisons in other states. The court held that prisoners should use section 1983, and not habeas corpus, to challenge the transfer between prisons, unless they are challenging a change in restriction that amounted to “a quantum change in the level of custody.” Id. at 499-500 (quoting Graham, 922 F.2d at 381); see also Moran v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000) (holding that inmates must use
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Section 1983 to challenge transfer to out-of-state prisons because they are not challenging “their convictions, their sentences, or administrative orders revoking good-time credits or equivalent sentence-shortening devices”). Compare this with Gonzalez-Fuentes v. Molina, where habeas corpus was the appropriate path to relief because the plaintiffs were challenging the fact of their incarceration, specifically, their reincarceration. 607 F.3d 864, 873 (1st Cir. 2010).
Analyzing the requested relief of plaintiffs in subclasses 1 and 2 makes clear that they do not seek to shorten the duration or fact of their custody. They do not challenge convictions, sentences, or orders against them, nor does their challenge require an inquiry into the validity of their custody—they challenge the conditions. The very nature of confinement in a congregate environment like an IDOC prison will not allow plaintiffs to properly mitigate the spread of COVID-19.
Defendants fault plaintiffs for not seeking a remedy that would improve conditions inside of prisons, see Doc. 26 at 21, but plaintiffs have adduced ample evidence to show there is simply no way to make conditions safe within the congregate prison setting, see e.g., Doc. 9 at 41-43. Karen McCarron, a prisoner at Logan Correctional Center who has an M.D. provides a concrete illustration of the problem inside her living quarters. See Exhibit D (McCarron declaration). McCarron lives in a housing unit with approximately 60 other women, many of whom are sick or elderly. Id. They live in dorms, with 4-6 women sleeping in one room, and all 60 women sharing the same set of toilets and showers. Id. As McCarron explains, people at Logan want to do their part to help “flatten the curve” of infection, but they are simply not able to do so on account of the congregate living environment. Id. When COVID-19 reaches Logan, it will spread rapidly, and the sick and elderly women with whom she lives will face a very serious risk of illness and death. Id. Plaintiffs’ section 1983 claim rests on these unsafe conditions and is not Heck-barred.
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c. Rizzo Abstention Does Not Apply Defendants further argue that this Court should abstain from granting relief under Rizzo v. Goode, 423 U.S. 362 (1976). To make this argument, defendants overstate Rizzo’s holding and grossly mischaracterize the relief plaintiffs seek. In Rizzo, the Supreme Court reversed the district court’s complete “overhaul” of a police department’s internal disciplinary procedures. Id. at 373. The Court found that the proof of liability amounted a few isolated cases of misconduct by individual officers, which in no way justified a complete overhaul of the department under federal court supervision. Id. There is no comparison between this case and the isolated instances of misconduct by individual police officers found in Rizzo. In this case, plaintiffs do not allege that a few correctional officers failed to wear protective masks, or failed to take appropriate measures to prevent transmission of the coronavirus. Rather, plaintiffs allege a statewide failure by the top state officials to protect prisoners from a crisis of unprecedented proportions. The evidence of this failure is largely undisputed. Two prisoners have died at Stateville; the number of prisoners with confirmed cases of COVID-19 has exploded even in the five days since plaintiffs filed this case. While the parties have been drafting briefs, the first confirmed cases have appeared among prisoners at Logan and Pontiac, and the virus is now confirmed to have breached the walls of Menard. If nothing is done, the disaster at Stateville will be repeated at prison after prison across the state. This is nothing like Rizzo. Defendants also misstate the relief sought by plaintiffs. There is no comparison between Plaintiffs’ narrowly drawn request for relief in this case and the sweeping changes mandated by the district court in Rizzo. Plaintiffs do not seek to place IDOC under the supervision of this Court. Plaintiffs do not seek any change at all in Illinois law, the Illinois Administrative Code, or
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any of IDOC’s Administrative Directives. Rather, plaintiffs have carefully narrowed their subclasses, their requests for relief, and most relevantly, the instant motion, to mirror the paths for relief established by state law. All plaintiffs seek is a rebalancing of the way defendants exercise their discretion under the existing law and procedures, to ensure that plaintiffs’ constitutional right to be protected from the substantial risk of harm (including potentially death) posed by the coronavirus pandemic is preserved. See Doc. 24-1 (Plaintiffs’ Proposed Remedial Plan). But plaintiffs’ proposed plan is just an example of how the defendants could comply with their constitutional obligation. Defendants may well have other means which would be equally effective, which they are free to proffer to the Court. Further, the proposed plan affords defendants the opportunity to make legitimate safety assessments and to transfer only those who have approved host sites. Id. Thus, the plan in no way “bypass[es]” the State’s interest and expertise, as defendants claim it would. Doc. 26 at 24 (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973)). What defendants cannot do is continue along the path they are on, slowly transferring or releasing only a handful of prisoners, leaving almost the entire plaintiff class exposed to an imminent deadly threat.
Plaintiffs’ requested relief fully complies with the mandate of Rizzo, which has since been codified in the Prison Litigation Reform Act and decisions of the Seventh Circuit. The PLRA requires that an injunction be “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.” 18 U.S.C. §3626(a)(1)(A). The PLRA further prevents federal courts from entering injunctions which would require government officials to violate state law. 18 U.S.C. §3626(a)(1)(B). The relief proposed by plaintiffs in this case carefully adheres to these mandates. See also Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012) (cautioning district courts that
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prison officials should be given an opportunity to draft remedial plans once a court finds a
constitutional violation). Again, plaintiffs have carefully adhered to this admonition. While they
have submitted a proposed remedial plan, it is only a suggestion of the type of relief they believe
would remedy the constitutional violation. Defendants may well have alternative plans which
would protect plaintiffs’ constitutional rights and the Court should consider any such plans.
Since Rizzo, numerous courts have issued orders requiring prison officials to take action
to protect prisoners’ constitutional rights.3 The U.S. Supreme Court even affirmed an order
requiring prison officials in California to release prisoners in Plata v. Brown, 563 U.S. 493
(2011). Clearly, Rizzo does not stand for the proposition asserted by defendants, that the federal
courts can no longer intervene to force prison officials to protect the rights of prisoners.
Tellingly, defendants cite only a single Seventh Circuit case where Rizzo has been
invoked to bar injunctive relief, Courthouse News Services v. Brown, 908 F.3d 1063, 1071 (7th
Cir. 2018).4 Courthouse News concerned an injunction won by journalists to force the Clerk of
3 See Mitchell v. Baker, No. 13-cv-0860-MJR-SCW, 2015 U.S. Dist. LEXIS 6689 (S.D. Ill. Jan. 21, 2015) (granting preliminary injunctive relief to a prisoner seeking a transfer); Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195, 209-10 (D. Mass. 2019) (ordering prison to either transfer prisoner to facility equipped to provide for his medical needs or to ensure he is provided with adequate care as remedy for prison’s deliberate indifference to his 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”); see also 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) (allowing plaintiff’s claim for retaliatory transfer to go forward based on prison officials’ transfer of plaintiff to prison more poorly-equipped to handle his psychiatric needs).
4 Defendants point to district court opinions rejecting prisoner transfers to support their contention that this Court should decline to grant injunctive relief pursuant to Rizzo. In each of these cases, however, the court made only a passing reference to Rizzo before rejecting otherwise deficient claims. See Boykin v. Fischer, No. 16-CV-50160, 2019 WL 6117580, at *14 (N.D. Ill. Nov. 18, 2019) (plaintiff offered no evidence that his assignment to a psychiatric unit violated his constitutional rights); Cornille v. Lashbrook, No. 19-CV-002, 2019 WL 366562, at *6 (S.D. Ill. Jan 30, 2019) (plaintiff’s vague claims of physical and mental harm from double celling were
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the Circuit Court of Cook County to release filings to the public immediately—a course of action incompatible with the state court’s standing order, see id. at 1067. Courthouse News has no application here. This case concerns imminent risk to the lives of medically vulnerable people in IDOC custody. Plaintiffs are not asking this Court to tell a state court system how to operate, nor are plaintiffs asking this Court to direct IDOC to take action inconsistent with its own rules. Neither Rizzo nor Courthouse News preclude the relief plaintiff seeks.
d. Defendants Will Lose an Exhaustion Affirmative Defense Finally, defendants argue that plaintiffs’ motion should be denied because they do not and cannot allege that they exhausted their administrative remedies. This argument is a nonstarter. First and foremost, plaintiffs have no obligation to plead exhaustion—failure to exhaust is an affirmative defense that defendants have the burden of pleading and proving. Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006). Furthermore, even if defendants were to assert a failure to exhaust defense, it would fail. To comply with the PLRA’s exhaustion requirement, prisoners must follow the prison’s established grievance process. See Woodford v. Ngo, 548 U.S. 81, 88-90 (2006); Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (“The ‘applicable procedural rules’ that a prisoner must properly exhaust are defined not by the PLRA, but by the prison grievance process itself.”). A prisoner is required to exhaust only the remedies that are actually available to them. Ross v. Blake, 136 S. Ct. 1850 (2016); Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016). The unavailability of the grievance process “lifts the PLRA exhaustion requirement entirely and
inadequate to justify a grant of a TRO); Conway v. Wagnor, No. 19-CV-036, 2019 WL 183903, at *1-2 (S.D. Ill. Jan. 14, 2019) (TRO not warranted because plaintiff did not allege that he was not currently receiving treatment at the facility from which he sought transfer nor explain why immediate treatment was warranted, among other deficiencies); Boykin v. Dixon Mental Health Servs., No. 16-CV-50160, 2018 WL 8806095, at *3 (N.D. Ill. Oct.15, 2018) (preliminary injunction denied because plaintiff demonstrated low likelihood of success on the merits).
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provides immediate entry into federal court.” Ramirez v. Young, 906 F.3d 530, 539 (7th Cir. 2018) (quoting Hernandez, 814 F.3d at 840).
Illinois regulations expressly prohibit use of the grievance process to address the kinds of placement matters at issue in this case: “The grievance procedure shall not be utilized for complaints regarding decisions that have been rendered by the Director, such as, but not limited to, facility placement, awards of supplemental sentence credit or transfer denials, or decisions that are outside the authority of the Department, such as parole decisions, clemency or orders regarding length of sentence.” 20 Ill. Admin. Code § 504.810(b) (emphasis added). Under Illinois rules, transfers and placements are non-grievable, period. No grievance process was available to plaintiffs, and there is no legitimate exhaustion issue in this case.
2. Subclasses 1 and 2 Have Pled a Plausible Eighth Amendment Claim a. Deliberate Indifference Does Not Require Plaintiffs To Prove Defendants Subjectively Intend to Harm Them
In order to prevail on their Eighth Amendment claim, plaintiffs must show that they face an objectively serious risk of harm, that defendants acted with deliberate indifference to that risk. Greeno v. Daley, 414 F. 3d 645, 653 (7th Cir. 2005); see also Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016). There is no dispute in this case about the objectively serious risks posed by COVID-19 to those in custody—particularly subclasses 1 and 2 who are medically vulnerable due to age or medical condition. Likewise, there is no dispute defendants’ awareness of that risk.
Defendants contend that plaintiffs’ lawsuit amounts to a disagreement about their response. But there is virtually no disagreement about the appropriate action here: those who are medically and chronologically vulnerable must be transferred to a place where they can selfisolate. The Governor’s April 6 Executive Order demonstrates his awareness of—and agreement with—this fact. Exhibit E (Executive Order 2020-21). Leaving prisoners locked in small cells,
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often with cellmates, in congregate settings where they cannot engage in social distancing and must rely on staff for all aspects of daily life is, in the era of COVID-19, is akin to leaving them in a cell with a cobra. As the Seventh Circuit has stated, if prison officials place a prisoner in a cell when “they know that there is a cobra there or at least that there is a high probability of a cobra there, and do nothing, that is deliberate indifference.” Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995).
Notably, deliberate indifference does not require plaintiffs to prove that defendants intend them harm, or even know that harm is a certain result. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996); Dixon v. County of Cook, 819 F.3d 343, 350 (7th Cir. 2016). The test instead requires a showing that the defendant is actually aware of and disregarded an obvious risk to the plaintiff’s health or safety. Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016). In injunctive cases like this one, deliberate indifference “should be determined in light of the prison authorities’ current attitudes and conduct . . . .” Farmer, 511 U.S. at 827; Helling v. McKinney, 509 U.S. 25, 36 (1993).
b. The Continued Placement of Medically Vulnerable Plaintiffs in Highly Dangerous Settings Where Safety and Health Standards Cannot Be Achieved Meets the Deliberate Indifference Standard
Respondents argue that they cannot possibly be deliberately indifferent to Petitioners’ risk of harm from COVID-19—the subjective component of the deliberate indifference analysis—because they have begun to review and furlough or transfer a very small number of IDOC prisoners. See Doc. 26 at 6. But defendants’ contention that they are taking some small action does not defeat plaintiffs’ claims of deliberate indifference when, by their own admission, such action has not meaningfully reduced the imminent risk of harm that subclasses 1 and 2—all of whom remain in custody—face because of the IDOC’s inability to implement CDC Guidance.
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See Gray, 826 F.3d at 1009 (“[k]nowingly persisting in an approach that does not make a dent in the problem is evidence from which a jury could infer deliberate indifference”).
In the very unique circumstances of this case, the Governor’s own orders admit that the prison environment inherently puts people in subclasses 1 and 2 at risk. And yet defendants have re-located only a small percentage of class members, leaving thousands more in need of an urgent response. While the situation at hand is unique, it fits precisely into the well-established Eighth Amendment jurisprudence of deliberate indifference.
In LaBrec v. Walker, 948 F.3d 836, 843 (7th Cir. 2020), the Seventh Circuit explained that courts assessing the deliberate indifference of defendants must look to “the circumstances as a whole . . . .” The risk of harm may come from “a single source or multiple sources,” and it is thus irrelevant “whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” Sinn v. Lemmon, 911 F.3d 412, 421 (7th Cir. 2018); see also Farmer v. Brennan, 511 U.S. 825, 842 (1994). What matters instead is whether defendants know of the risk (which they do), and whether their response meaningfully responds to that risk (which it does not).
Defendants’ deliberate indifference to the plight of those most vulnerable in our prison population is demonstrated by the continued placement—despite the availability of relocation options—of thousands of vulnerable people. For example, William Richard and his oxygen tank remain in a 4-person 12-foot x 15-foot cell, relying on a chain of other people—both staff and prison workers—to prepare and deliver his meals and medications, each a point of contact, and potential infection, along the way. The CDC, however, recommends that people with asthma not
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Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 25 of 49 PageID #:477
even share household items like cups and towels.5 Those kinds of limitations on limitations on shared contact are not possible in correctional settings. Plaintiffs not only share physical spaces that often do not allow for social distancing, but daily operations of the facilities involve countless points of contact among numerous people, including staff who come daily.
Plaintiffs are essentially “sitting ducks,” whose terms of incarcerations risk becoming death sentences if defendants do not change course to expedite and substantially increase the relocation processes. By doing so, Defendants are “persist[ing] in a course of treatment known to be ineffective.” Petties, 836 F.3d at 730. See also Gray v. Hardy, 826 F.3d 1000, 1009 (7th Cir. 2016) (“Knowingly persisting in an approach that does not make a dent in the problem is evidence from which a jury could infer deliberate indifference.”); Sellers v. Henman, 41 F.3d 1100, 1103 (7th Cir. 1994) (“The more negligent acts they commit in a circumscribed interval, the likelier it is that they know they are creating some risk, and if the negligence is sufficiently widespread relative to the prison population the cumulative risk to an individual prisoner may be excessive”); see also Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983) (in systemic cases, “as a practical matter, ‘deliberate indifference’ can be evidenced by ‘repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff’ or it can be demonstrated by ‘proving there are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively denied access to adequate medical care.’”). Continuation of these inadequate efforts is analogous to giving aspirin to the patient at risk of appendicitis and returning him to his cell, Sherrod v. Lingle, 223 F.3d 605, 612
5 CDC, COVID-19, People Who Need Extra Precautions, People with Moderate to Severe Asthma, available at https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/asthma.html
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(7th Cir. 2000), or continuing to treat severe vomiting with antacids over three years, Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005).
c. The Court Need Not, and Cannot, Wait for the Named Plaintiffs to Test Positive for COVID-19 to Act
Defendants also assert that plaintiffs cannot establish deliberate indifference because none of them has tested positive for COVID-19. Doc. 26 at 27. This assertion is wholly without merit. It is well-established that an Eight Amendment claim can be founded upon risk of future harm, especially where the harm is certain and imminent. In Helling, a plaintiff alleged that he was assigned to a cell with another inmate who smoked five packs of cigarettes per day. Helling v. McKinney, 509 U.S. 25, 28 (1993). At issue was whether this exposure to environmental tobacco smoke (ETS) could constitute a valid claim under the Eighth Amendment, even though the plaintiff had not yet suffered harm. Id. at 30. The Supreme Court upheld the decision of the Court of Appeals, finding that the plaintiff stated “a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health.” Id. at 35. Helling has also contaminated water, Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001); see also id. 472 (probabilistic for future harm can form the basis of an Eighth Amendment claim).
It is widely understood that COVID-19 is a highly contagious disease that spreads rapidly in congregate settings--indeed it is the entire basis for the Governor’s currently-pending shelterin-place order. The fact that the individual named plaintiffs do not yet have COVID-19 does defeat their Eighth Amendment claim.
3. Subclass 1 Has Pled a Plausible ADA Claim Unlike the Eighth Amendment claim, the Americans with Disabilities Act (ADA) does not require any finding of intent for the Court to act to remedy the discriminatory treatment of
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people with disabilities through injunctive relief. Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 846-47 (7th Cir. 1999). Here, the prohibited discrimination is occurring in two ways, regardless of the Defendants’ subjective intentions: first, people with disabilities (due to underlying medical conditions) are disparately impacted by the IDOC’s practice of maintaining their placement in dangerous settings; and, second, IDOC has denied and continues to deny a reasonable accommodation that is available but not being fully utilized to protect medically vulnerable class members.
People with underlying medical conditions are at significant risk to the COVID-19 virus and the state has acknowledged that the conditions inherent to prisons make it difficult, if not impossible, to effectively mitigate or prevent the virus’s spread once it enters a prison—as is tragically occurring at Stateville where the numbers of confirmed cases have soared from a handful to over a hundred in the course of a week. Defendants concede that IDOC has mechanisms available which would be more effective at protecting against the significant risk of harm (including furlough), but it has only utilized them for a very small percentage. Plaintiffs remain stranded in conditions that now jeopardize their lives. The fact that IDOC has not taken the requisite action for Plaintiffs demonstrates a more than plausible violation of the ADA.
a. Plaintiffs are Otherwise Qualified The term “qualified individual with a disability” is specifically defined in the statute as “an individual with a disability who, with or without reasonable modifications . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). Plaintiffs easily satisfy the otherwise qualified standard. The relevant service or program—as explained in plaintiffs’ opening brief—is IDOC’s program/service of providing safe custody.
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Ignoring the service of “providing safe custody” in the pleading, defendants reframe the relevant program/service as furlough and argue that plaintiffs are not otherwise qualified despite the significant medical needs. Defendants’ argument is wrong on the law and the facts. While a furlough is a program/service of the IDOC in a general sense, it is not the specific one at issue here; rather, it is the method of accommodation available to IDOC. That said, even if furlough was the program/service in question, defendants’ argument remains a non-starter because, as a factual matter, plaintiffs easily qualify for the program/service of furlough.
i. Members of Subclass 1 are Otherwise Qualified for the IDOC Program/Service at Issue: Safe Custody
The issue challenged by plaintiffs is IDOC’s failure to take the requisite action to ensure the safety of individuals within its custody and control; thus, the appropriate program/service to consider is IDOC’s program/service of providing safe custody.6 A “program or activity” under Title II “applies to anything a public entity does.” Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 782 (7th Cir. 2002); Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (cautioning against “needless hair splitting arguments” and holding that Title II of the ADA applies to “anything a public entity does”).
There is no reason to redefine the program/service at issue here. The Supreme Court has cautioned against defining the scope of a public benefit so as to avoid questions of discriminatory effects. In Alexander v. Choate, 469 U.S. 287, 301 (1985), a case brought under the ADA’s predecessor the Rehabilitation Act, the Supreme Court in a unanimous decision
6 Indeed, the stated mission of IDOC is to “[t]o serve justice in Illinois and increase public safety by promoting positive change in offender behavior, operating successful reentry programs, and reducing victimization.” Among the ways that IDOC pursues its mission is to offer a program of “safe, secure, and humane correctional facilities” in which “[s]afety is at the forefront of agency operations with an emphasis on frontline staff to protect and control inmates.” See IDOC Agency Overview, https://www2.illinois.gov/idoc/aboutus/Pages/IDOCOverview.aspx
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explained that when assessing the benefit at issue, caution should be taken to ensure that the “benefit [is not] defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled.” See also id. at n.21 (citing with approval the government's statement that “[a]ntidiscrimination legislation can obviously be emptied of meaning if every discriminatory policy is ‘collapsed’ into one’s definition of what is the relevant benefit”).
Moreover, ensuring the safety of individuals has been recognized as a requirement under Title II of the ADA, as well as a service, program or activity. See, e.g., Arenas v. Georgia Dep’t of Corr., 2018 WL 988099, at *8 (S.D. Ga. Feb. 20, 2018) (denying motion to dismiss regarding plaintiff’s request for an appropriate cell assignment to access the prison’s benefits/services of “safe housing”); Cox v. Mass. Dep’t of Corr., 18 F. Supp. 3d 38, 46 (D. Mass. 2014) (plaintiff properly alleged an ADA claim for the denial of “the benefits of the facility (‘safe’ housing and supervision)”).
Defendants do not – and cannot – dispute that they are responsible for the program/service of safe custody of individuals within its control. Thus, members of subclass 1 are “qualified individuals with disabilities” by virtue of their current incarceration.7
ii. Plaintiffs are also “Otherwise Qualified” and Eligible for Medical Furlough
Plaintiffs are eligible for furlough under the statute, both before and after the Governor’s April 6, 2020 Executive Order. See Exhibit E (Executive Order 2020-21). The statute sets forth a range of purposes for which IDOC may place an individual on furlough, including to obtain medical services not otherwise available. 730 ILCS 5/3-11-1(a)(2). Plaintiffs meet the statutory
7 Defendants do not dispute that plaintiffs are individuals with disabilities within the meaning of the ADA, as set forth in Plaintiffs’ Complaint, at ¶ 122. See 42 U.S.C. § 12102(1); see also 28 C.F.R. § 35.104.
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requirement (even prior to the amendment by Executive Order) in two ways. First, due to the current COVID-19 pandemic, increased social distancing, as well as rigorous cleaning and hygiene practices are all an essential component of the medical care standards for people with these conditions – standards that cannot be effectively achieved in their current settings.8 Therefore, medical furlough is appropriately utilized to allow them to comply with standards of care (treatment) for these medical conditions. Second, by definition, members of subclass 1 all have significant medical conditions for which they require ongoing medical treatment. Due to the pandemic IDOC is currently limited in its ability to provide care (not to mention the ongoing staffing shortages or denials of care that have plagued the system for years). See Doc. 1, Complaint ¶¶ 86-89. IDOC warned class members days ago that their medical resources were already “stretched thin.” See Doc. 1-10.
Moreover, with the April 6 Executive Order, all members of subclass 1 are eligible for medical furlough regardless of whether they are currently receiving medical treatment for their conditions, because it specifically allows for the use of furlough for any medical purpose for exactly this reason, to allow medical furloughs for the medically vulnerable population more broadly due the specific limitations of the prison system. See Exhibit E. As a result, each of the named plaintiffs for subclass 1 are all “qualified individuals with disabilities” for the medical furlough program. See Doc. 1, Complaint ¶¶ 93-101 (describing medical circumstances of James Money, William Richard, Gerald Reed, Tewkunzi Green, Danny Labosette, Amber Watters, Carl Reed, and Carl “Tay Tay” Tate).
8 Northwestern Medicine, High Risk Conditions and COVID-19, at https://www.nm.org/conditions-and-care-areas/infectious-disease/covid-19/high-risk-conditions
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b. Disparate Impact Subclass 1 is defined to conform to the CDC’s findings as to medical vulnerability based on specific underlying medical conditions; therefore, all subclass members fall into these established high-risk categories. Moreover, outside of this litigation, the Governor has admitted to the increased vulnerability of this subclass. The April 6 Executive Order plainly acknowledges the disparate impact of the incarcerated population of medically vulnerable people, which defendants nonetheless dispute in these pleadings. WHEREAS certain populations are at a higher risk of experiencing more severe illness as a result of COVID-19, including older adults and people with serious chronic health conditions such as heart disease, lung disease, or other conditions; WHEREAS, the Illinois Department of Corrections (IDOC) currently has a population of more than 36,000 . . . the vast majority of whom, because of their close proximity and contact with each other . . . are especially vulnerable to contacting and spreading COVID-19 Exhibit E; see also Doc. 1, Complaint, at ¶ 73 (quoting March 26, 2020 press briefing, including that “certain populations are at a higher risk of experiencing more severe illness as a result of COVID-19, including older adults and people who have serious chronic health conditions, such as heart disease, diabetes, lung disease or other mental or physical conditions.”). Nonetheless, defendants here challenge the existence of a disparate impact on people with these underlying conditions, arguing that more detailed statistical evidence is required. While plaintiffs disagree that is more required, the statistical evidence showing disparate impact is readily available. The CDC is issuing Morbidity and Mortality Reports with detailed data and statistical analysis, summarized here: The percentage of COVID-19 patients with at least one underlying health condition or risk factor was higher among those requiring intensive care unit (ICU) admission (358 of 457, 78%) and those requiring hospitalization without ICU admission (732 of 1,037,
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71%) than that among those who were not hospitalized (1,388 of 5,143, 27%). The most commonly reported conditions were diabetes mellitus, chronic lung disease, and cardiovascular disease. These preliminary findings suggest that in the United States, persons with underlying health conditions or other recognized risk factors for severe outcomes from respiratory infections appear to be at a higher risk for severe disease from COVID-19 than are persons without these conditions. . . . These results are consistent with findings from China and Italy, which suggest that patients with underlying health conditions and risk factors, including, but not limited to, diabetes mellitus, hypertension, COPD, coronary artery disease, cerebrovascular disease, chronic renal disease, and smoking, might be at higher risk for severe disease or death from COVID-19 (3,4).
The Morbidity and Mortality Reports also include detailed tables showing the data for each specific condition.9 In New York, 4,089 of the 4,758 deaths were of patients with at least one
other chronic disease, including hypertension in 55% of deaths and diabetes which was diagnosed in 1,755 deaths (about 37% of the cases).10 Again, because plaintiffs have defined the
class as premised on the CDC’s findings of vulnerability due to underlying medical conditions,
this is sufficient evidence of disparate impact.
c. Plaintiffs State a Meritorious Discrimination Claim for Failure to Accommodate
Incarceration in an Illinois prison is not intended to be a death sentence. For reasons
outside of IDOC’s control—the COVID-19 pandemic—IDOC’s program/service of providing
safe custody is not available to people in subclass 1 without the provision of reasonable
accommodations. Due to age and underlying medical conditions, members of subclass 1 face two
related obstacles to their safety. First, most are at heightened risk to contract COVID-19, due to
underlying medical conditions or to immune suppressing drugs taken to address medical
9 CDC COVID-19 Response Team: Morbidity and Mortality Weekly Report, “Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020. 10 USA Today, New data on New York coronavirus deaths: Most had these underlying illnesses; 61% were men https://www.usatoday.com/story/news/health/2020/04/07/new-york-coronavirusdeaths-data-shows-most-had-underlying-illnesses/2960151001/ (Apr. 7, 2020)
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conditions. Second, all are at extremely heightened risk to experience a more severe case of COVID-19 due to underlying medical conditions.
To provide the service or program of safe custody, IDOC normally houses those in custody in one of the 28 facilities around the state. However, because of current conditions, it can no longer do so. The Governor’s April 6 Executive Order acknowledged:
WHEREAS certain populations are at a higher risk of experiencing more severe illness as a result of COVID-19, including older adults and people with serious chronic health conditions such as heart disease, lung disease, or other conditions; WHEREAS, the Illinois Department of Corrections (IDOC) currently has a population of more than 36,000 . . . the vast majority of whom, because of their close proximity and contact with each other . . . are especially vulnerable to contacting and spreading COVID-19; and WHEREAS, the IDOC currently has limited housing capacity to isolate and quarantine inmates who present as symptomatic of, or test positive for COVID-19” Exhibit E. If the IDOC does not have sufficient housing to appropriately quarantine those who actually developed symptoms and confirmed cases, they certainly do not have the capacity to provide the level of quarantine needed to protect these medically vulnerable class members in the event of an outbreak in their facilities. As a result, defendants must provide medically vulnerable class members with the reasonable accommodation of medical furlough. 28 C.F.R. §§ 35.130(b)(7) (“public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”). Contrary to defendants’ argument, the failure to provide an accommodation needed to prevent the disparate impact on Plaintiffs is itself discrimination based on disability. Direct, or intentional, discrimination is not the only form of discrimination
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prohibited by the ADA. See Alexander v. Choate, 469 U.S. 287, 297 & n. 12 (1985) (Congress recognized that discrimination on the basis of a disability is “most often the product, not of invidious animus, but rather of thoughtlessness and indifference--of benign neglect.”).Thus, equally violative of the statute is the failure to make reasonable modifications or accommodations that would allow people with disabilities to participate in the same programs in which nondisabled people participate. As defendants themselves note, plaintiffs “may establish discrimination by presenting evidence that the defendant intentionally acted on the basis of the disability, the defendant refused to provide a reasonable modification, or the defendant’s denial of benefits disproportionately impacts disabled people.” Doc. 26 at 31, citing Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 937 (N.D. Ind. 2009).
Moreover, allowing subclass members the accommodation of participating in an existing program is not a “fundamental alteration.” Radaszewski v. Maram, 383 F.3d 599, 609-611 (7th Cir. 2004) (explaining that Title II of the ADA “may well require the State to make reasonable modifications to the form of existing services” … but that “a State is not obliged to create entirely new services” or fundamentally alter the substance of the services it provides). Plaintiffs do not ask defendants to create a new program or to change eligibility criteria for a program. Likewise, defendants’ contention that it would be an undue burden to fully utilize this accommodation for our most vulnerable class members cannot be accepted. This accommodation is needed to save lives, and will further also serve to decrease the risk to other prisoners, to prison staff, and to the surrounding communities. See e.g. Radaszewski, 383 F.3d at 613-14 (explaining that while the initial cost of community based care, even if greater than cost of institutionalized care, is not enough to establish fundamental alteration: “If every alteration in a
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program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.”).
In sum, plaintiffs have demonstrated a likelihood to succeed on the merits of their Eighth Amendment and ADA claims. B. Plaintiffs Have Demonstrated That They Face Irreparable Harm
Defendants’ next argument, that plaintiffs have not demonstrated irreparable harm, is preposterous. They argue that Plaintiffs have only demonstrated “the possibility that a substantial risk might arise from COVID-19 generally, not that any named plaintiff faces a particular probable harm.” Doc 26 at 34. Defendants are simply wrong. At least two prisoners have already died from COVID-19. Currently 110 prisoners are infected with the virus in 7 different correctional centers—including 95 prisoners at Stateville. And 70 staff from 13 different correctional centers are infected. It is not just possible that more prisoners will contract COVID19, it is certain. And as described in detail above, if members of subclasses 1 and 2—and in particular named Plaintiffs Money, Richard, Gerald Reed, Green, Labosette, Carl Reed, and Tate—contract the virus, they will likely suffer severe illness or death because of their age and/or serious underlying medical conditions. There is no doubt that the risk of severe illness or death constitutes irreparable harm. See, e.g., Jones’El v. Burge, 164 F. Supp. 2d 1096, 1123 (W.D. Wis. 2001) (“Put more specifically, pain, suffering and the risk of death constitute irreparable harm sufficient to support a preliminary injunction in prison cases.” (internal quotation marks omitted)); Flynn v. Doyle, 630 F. Supp. 2d 987, 993 (E.D. Wis. 2009) (granting a preliminary injunction in a prison medical care case where the irreparable harm constituted continued medication errors and delays, which will result in life-threatening risks, the exacerbation of chronic and acute serious medical conditions, and unnecessary pain and suffering); Farnam v.
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Case: 1:20-cv-02093 Document #: 28 Filed: 04/08/20 Page 36 of 49 PageID #:488
Walker, 593 F. Supp. 2d 1000, 1012-13 (C.D. Ill. 2009) (finding irreparable harm where a doctor testified that “the care the plaintiff was receiving at Graham, if continued, would significantly decrease the quality as well as the quantity of the plaintiff’s life”).
The named plaintiffs do not have to wait until they contract the virus to demonstrate irreparable harm and request relief. As defendants recognize, the risk of irreparable injury simply has to be “likely” in the absence of an injunction. See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017). Here it is certainly likely that when the virus enters the named plaintiffs’ prisons—indeed it has already entered Stateville NRC where Gerald Reed is housed, Logan where Green and Watters are housed, Graham where Carl Reed is housed, and Danville where Tate is housed—and inevitably begins to spread due to the congregate environment of prisons and the highly contagious nature of the virus, they are at risk of contracting COVID-19 and becoming severely ill and/or dying. Defendants’ reliance on Orr v. Shicker, -- F.3d --, 2020 WL 1329659 (7th Cir. 2020) is misplaced, as that case involved the hepatitis C virus (HCV), which the court noted “is a slow-moving disease and that rates of progression vary between individuals,” and that “sometimes hepatitis C does not progress for years in patients who do not undergo treatment.” Id. at *9 (finding that given the nature of HCV and the fact that IDOC was treating inmates with HCV, the individual plaintiffs did not show that the treatment protocol would likely cause them irreparable harm). Here, COVID-19 is very different from HCV—particularly because COVID-19 is much more contagious, the rates of infection are higher, the symptoms can escalate very quickly, and entire medical systems are becoming overwhelmed by critically ill COVID-19 patients. COVID-19 is uniquely and extremely dangerous to members of subclasses 1 and 2.
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The Seventh Circuit has explained that a prisoner faces a substantial risk of harm when prison officials place a prisoner in a cell in which “they know that there is a cobra there or at least that there is a high probability of a cobra there.” Brown v. Budz, 398 F.3d 904, 911 (7th Cir. 2005) (citation omitted). Here, COVID-19 is the hypothetical cobra and the named plaintiffs and members of subclasses 1 and 2 face a substantial risk of getting bit by the cobra. Accordingly, the named plaintiffs and members of subclasses 1 and 2 clearly face irreparable harm if injunctive relief is not granted. C. The Balance of Equities Weighs in Favor of Plaintiffs
Defendants’ argument that the balance of harms weighs in their favor is likewise unavailing. Yet again relying on a straw man argument, defendants assert that plaintiffs seek to have thousands of dangerous people cast out onto the street to wreak havoc in their communities. Doc. 26 at 35. Plaintiffs request no such thing. Plaintiffs seek transfer of prisoners severe illness or death from exposure to COVID-19 on account of underlying medical issues or age to their homes via medical furlough.11 These prisoners would be subject to a risk assessment and host site approval and would remain in the custody of the IDOC, under restrictions set by the IDOC, including, for example, electronic monitoring. Doc. 24-1. Defendants’ safety concerns are significantly overstated.12
In addition to wrongly speculating about the danger plaintiffs present to the public, defendant completely overlook the risks posed to the public without relief from this court.
11 Throughout their brief, defendants assert that plaintiffs are seeking to release 16,000 prisoners. While the estimated number of people in each of subclasses 1 and 2 adds up to 16,000, the number of prisoners seeking relief is actually much lower. As defendants are aware, there is significant overlap in these subclasses.
12 Many of the individuals in subclasses 1 and 2 are also within a year of their out dates (and fall into one or more of subclasses 3-6), which further weakens the defendants’ position relating to safety concerns. Defendants will be hard-pressed to articulate a safety concern to justify refusing furlough to those already scheduled for release in the near future.
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Prisons are not closed environments. As the outbreak at Stateville shows, the rapid spread of

COVID-19 in congregate correctional settings completely overwhelmed the local hospital,

prompting a local official to declare the situation a “disaster.” Furthermore, COVID-19 infection

in IDOC has not been limited only to prisoners. As of April 8, 2020, there are 39 confirmed

cases among Stateville staff, and that number is on the rise, and more than 10 IDOC facilities

have at least one confirmed staff case.

It is only a matter of time before the situation at Stateville replicates in prison

communities throughout the state. Unfortunately for those communities, they do not enjoy the

same medical resources as the communities near Stateville. The chart below shows the number

of ICU beds in communities surrounding just a few of IDOC’s facilities.13

Correctional Center
Graham

Prison

Local

Population Population

1,919

6,156 (Hillsboro)

Total ICU Beds in the Area
4

Lawrence Dixon

2,166 2,051

5326

12

(Sumner)

17,253 (Dixon)

14

Danville

1,724

33,158

20

(Danville)

Menard

2,213

10,727

23

(Chester)

Shawnee

1,682

4,496

26

(Vienna)

13 Hospital bed data obtained from Illinois Department of Public Health, Inventory of Health Care Facilities and Services and Need Determinations (2019), available at https://www2.illinois.gov/sites/hfsrb/InventoriesData/HealthCareFacilities/Documents/Hospital %20Inventory%202019%20E.pdf
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Logan Stateville

1,657 2,674

15,473

105

(Lincoln)

23,511

115

(Crest Hill)

Defendants completely ignore the strong public interest in preventing these local communities and their hospitals from becoming overburdened with COVID-19 cases. It is not possible to flatten the curve outside of prisons if it is not also flattened inside prisons. As defendants fail to acknowledge, it is not only the health and welfare of prisoners at stake, but also the health and welfare of those who live and work in the surrounding communities. The balance of equities weighs in favor of granting the relief that plaintiffs seek. III. The Court Should Preliminarily Certify Subclasses 1 and 2
Defendants do not dispute that subclasses 1 and 2 satisfy the numerosity and adequacy requirements of Federal Rule of Civil Procedure 23. Instead, in an attempt to defeat plaintiffs’ request for preliminary class certification, defendants argue that plaintiffs’ have proffered insufficient evidence to meet their burden and that the putative class lacks commonality and typicality. These arguments fail—and ignore that subclasses one and two request only preliminary certification/and or class wide injunctive relief.
A. Plaintiffs Seek Preliminary Class Certification for the Limited Purpose of Ensuring that Emergency Relief Benefits Each Member of Subclasses 1 and 2
At this time, plaintiffs do not seek a final order from this Court certifying the putative class and each subclass. Instead, plaintiffs seek a mechanism to ensure that any emergency relief this Court orders benefits members of subclasses 1 and 2. When confronting the issue of class certification in the context of a motion for preliminary injunction, courts generally take one of two approaches. The first approach is to “provisionally” or “preliminarily” certify a class. The
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second approach is to use the court’s equitable powers to order class-wide relief. Either approach would satisfy the Plaintiffs’ request here.
Courts regularly certify classes on a provisional or preliminary basis when granting a preliminary injunction or a temporary restraining order. See Lee v. Orr, 2013 WL 6490577, at *2 (N.D. Ill. 2013) (quoting Newberg on Class Actions) (“The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to class wide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.”) (quoting Ill. League of Advocates for the Developmentally Disabled v. Ill. Dept. of Human Services, 2013 WL 3287145, at *3 (N.D. Ill. 2013), subsequent determination, 2013 WL 3776962 (N.D. Ill. 2013)) (internal quotation marks omitted). The Ninth Circuit explicitly approved of this practice when it upheld a district court’s decision to provisionally certify a class and issue a preliminary injunction in litigation related to the Telephone Consumer Protection Act. See Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (finding the plain language of FRCP 23(b)(2) permits provisional class certification). See also Ligon v. City of New York, 288 F.R.D. 72 (S.D.N.Y. 2013) (granting preliminary injunction class certification to a class of plaintiffs challenging police practices in New York City); Morrison v. Heckler, 602 F. Supp. 1485, 1485-86 (D.C. Minn. 1985) (preliminarily certifying a class and granting a temporary restraining order in litigation concerning public benefits); Harris v. Graddick, 593 F. Supp. 128 (M.D. Ala. 1984) (certifying a plaintiff and defendant class concurrently with issuing a preliminary injunction).
Courts also regularly grant class-wide relief through a preliminary injunction, without making explicit findings related to Rule 23. “Under appropriate circumstances, a court may grant
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preliminary injunctive relief in favor of putative class members before class certification, and correspondingly, assess the harm to putative class members when considering the preliminary injunction motion.” 2 Newberg on Class Actions § 4:30 (5th ed.). Numerous courts have taken this path when granting a class-wide preliminary injunctive relief. See Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402, 433 (6th Cir. 2012) (there is nothing improper about a preliminary injunction preceding a ruling on class certification); Fish v. Kobach, 189 F. Supp. 3d 1107, 1148 n.163 (D. Kan. 2016) (stating, in context of a class action challenge to Kansas motor voter statute, that “case law supports this Court's authority to issue class-wide injunctive relief based on its general equity powers before deciding the class certification motion”); Abdi v. Duke, 280 F. Supp. 3d 373, 400 (W.D.N.Y. 2017) (granting a class-wide injunction where named plaintiffs demonstrated irreparable harm and that those harms were representative of putative class members); Rodriguez v. Providence Community Corrections, Inc., 155 F. Supp. 3d 758, 767 (M.D. Tenn. 2015) (a district court may award appropriate class-wide injunctive relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers).
B. Plaintiffs Have Proffered Sufficient Evidence To Carry Their Burden Under Rule 23
Defendants assert that the plaintiffs “have presented no actual evidence” about the proposed class and that on this basis alone, the Court should deny their request for preliminary class certification. Defendants also attempt to attack the evidence plaintiffs present as “inadmissible hearsay.” Doc 26 at 37. Not only does this argument misrepresent Plaintiff’s filings, it also ignores the “well-established rule that hearsay is admissible in preliminary injunction hearings.” See SEC v. Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991); LaForest v. Former Clean Air Holding Co., 376 F.3d 48 (2d Cir. 2004) (affirming the district court’s grant of
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preliminary injunctive relief in favor of the putative class, which the district court granted in reliance on affidavits from unnamed plaintiffs); FTC v. Lifewatch Inc., 176 F. Supp. 3d 757, 76162 (N.D. Ill. 2016) (“Affidavits and other hearsay materials are often received in preliminary injunction proceedings. The dispositive question is not their classification as hearsay but whether, weighing all the attendant factors, including the need for expedition, this type of evidence was appropriate given the character and objectives of the injunctive proceeding.”).
Subclass 1 is defined as “people who have serious 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, and who are eligible for medical furlough pursuant to 75 ILCS 5/3-11-1.” Subclass 2 is comprised of people who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 75 ILCS 5/3-11-1.
In support of their request to preliminarily certify these subclasses, plaintiffs request that the Court take judicial notice of a number of well-established facts, specifically: (1) World Health Organization data demonstrating people in these subclasses have a significantly increased
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chance of dying if they contract COVID-19;14 (2) United States Department of Justice Data
regarding the increased prevalence of medical vulnerabilities among people in prison;15 and (3)
the IDOC’s own data establishing that there are 4,807 people in its custody who are 55 or
older.16 See Fed. R. Evid. 201 (“The court may judicially notice a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.”).17
14 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/default-source/coronaviruse/who-china-joint-mission-on-covid-19final-report.pdf (last visited Apr. 1, 2020).
15 Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
16 Population Data Sets, Illinois Department of Corrections, available at https://www2.illinois.gov/idoc/reportsandstatistics/Pages/PopulationDataSets.aspx
17 Plaintiffs further request that this Court take judicial notice of the numerous federal district decisions finding the subclasses’ ages and medical conditions created a heighted risk of serious health consequences or even death if infected with COVID-19 and that there exists a high risk of contracting COVID-19 in correctional facilities. See United States v. Perez, 2020 WL 1546422, at *4 (S.D.N.Y. 2020) (ordering a prisoner’s early release after finding that a prisoner’s recent surgeries compromised his immune system, where he was housed in a small cell and he could not “protect himself from the spread of a dangerous and highly contagious virus.); United States v. Ramos, 2020 WL 1478307, at *1 (D. Mass. 2020) (ordering the release of a detainee who had asthma and diabetes from a facility where there were no known cases of COVID-19 after finding that “it is not possible for a medically vulnerable inmate such as Mr. Ramos to isolate himself in this institutional setting as recommended by the CDC); United States v. Rodriguez, 2020 WL 1627331, at *8 (E.D. Pa. 2020) (finding that “prisons are ill-equipped to prevent the spread of COVID-19” and ordering the release of a prisoner with diabetes); United States v. Fellela, 2020 WL 1457877, at *1 (D. Conn. 2020) (releasing from custody a 62-yearold, overweight detainee after finding that “all levels of government nationwide have recently taken drastic measures in light of the COVID-19 pandemic to promote “social distancing” and to prohibit the congregation of large numbers of people with one another. But, as is true for most jails and prisons, the conditions of confinement at Wyatt are not compatible with these safeguards.”); United States v. Cubie, 2020 WL 1669400, at *2 (E.D. Wis. 2020) (releasing 54 year old prisoner because of the threat of COVID-19); Basank v. Decker, 2020 WL 1481503, at *3 (S.D.N.Y. 2020) (ordering the release of immigrant detainees who asthma, diabetes, heart disease, hypertension and obesity after taking judicial notice that “for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality” and that COVID-19 presents a “health risk. . .of constitutional significance— for inmates who are elderly or have underlying illnesses.” ); Thakker et al v. Doll, 2020 WL 1671563, at *7 (M.D. Pa. 2020) (releasing from detention immigrant petitioners who were over
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With regard to information about the named plaintiffs and putative class, attached to
Plaintiffs’ Motion for a Preliminary Injunction, see Doc. 9-11 (and attached here as Exhibit F),
are a number of declarations from the families of putative class members. These declarations set
forth the health conditions class members live with including asthma,18 and hypertension19 the
prevalence of people in prison exhibiting symptoms of COVID-19,20 and the inability to socially
distance in prison.21 Family members also assert that they would welcome their loved one into
their homes upon a grant of medical furlough.22
Declarations from the family members of named plaintiffs are also attached to this
motion describing the named plaintiffs’ medical conditions which include hypertension,23
50 and/or had hypertension, kidney failure, diabetes, hepatitis b, anemia, and leukemia after finding that the nature of “detention facilities makes them uniquely vulnerable to the rapid spread of highly contagious diseases like COVID-19” and that petitioners’ continued detention may end in “catastrophic results.”); Jones et al, v Wolf et al., 2020 WL 1643857, at *8 (W.D.N.Y. 2020) (taking “judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality.”); United States v. Davis, 2020 WL 1529158, at *6 (D. Md. 2020) (releasing a pretrial detainee with bronchitis upon finding that “incarcerating the defendant while the current COVID-19 crisis continues to expand poses a greater risk to community safety than posed by Defendant’s release to home confinement.”); Malam v. Adducci,, 2020 WL 1672662, at *8 (E.D. Mich. 2020) (releasing a 56year-old immigrant detainee after finding inter alia that “petitioner’s involuntary interaction with purportedly asymptomatic guards who rotate shifts is also a significant exposure factor.”)
18 Declaration of Amy Cochran (mother of putative class member Brice Mixon, Shawnee Correctional Center) at 1; Declaration of Beverly Bennet (mother of putative class member Jamal Bennett, Centralia Correctional Center) at 1; Declaration of LaTonya Jenkins Lucas (mother of putative class member Frank Sykes, Stateville Correctional Center) at 1.
19 Declaration of Ohlibamah Clark (finance of putative class member Duane Moore, Dixon Correctional Center) at 1.
20 Declaration of Carla Felton (partner of putative class member Carlvosier Smith, Stateville Correctional Center) at 1.
21 Declaration of Kaye Thomas (wife of putative class member Luther Thomas, Big Muddy Correctional Center) at 1; Declaration of Sharon Gray (mother of putative class member John Shores, Hill Correctional Center) at 1.
22 Thomas Dec at 1; Jenkins-Lucas Dec at 1; Clark Dec at 1; Gray Dec at 1; Bennet Dec at 1.
23 Declaration of Prestina Tate (sister of named plaintiff Carl Tay Tay Tate, Danville Correctional Center) at 1.
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diabetes,24 Hepatitis C25 and cancer.26 Each family member declarant affirms that they have a space in their homes for their currently incarcerated loved one to safely quarantine upon release and that they will support their loved one in complying with IDOC supervision requirements and obtaining medical care.27
Defendants have custody and control over each of the named plaintiffs as well as all of the medical and other records that corroborate the allegations counsel has made about them. Defendants can access and verify the contents of those records themselves, and plaintiffs’ counsel is prepared to elicit testimony from each of the named class representatives at the preliminary injunction hearing. Plaintiffs hereby requests that defendants make each of the named plaintiffs available to testify by telephone at the hearing.28
Plaintiffs’ evidence is sufficient to support a finding of preliminary class certification— particularly because this evidence demonstrates the significant harm the putative subclasses will face in the absence of class wide relief. See Doe v. Trump, 418 F. Supp. 3d 573, 604 (D. Or. 2019) (“Having putative class members suffer [an] alleged irreparable harm merely because the preliminary injunction had to be litigated in an expedited fashion before class certification could be fully litigated is contrary to the purposes behind class actions and preliminary injunctive relief.”).
24 Declaration of Kim Reed (sister of named Plaintiff Carl Reed, Graham Correctional Center at 1.
25 Declaration of Valerie Ott (mother of named plaintiff Danny Labosette, Robinson Correctional Center) at 1.
26 Declaration of Patty Best (fiancee of named Plaintiff James Money, Illinois River Correctional Center) at 1.
27 Tate Dec at 1; Reed Dec at 1; Best Dec at 1; Ott Dec at 1; Declaration of LaDonna Sipes (mother of named Plaintiff Amber Watters, Logan Correctional Center) at 1; Declaration of Siovhan Tucker (niece of named Plaintiffs Gerald Reed, Northern Reception Center) at 1; Declaration of Sarah Wild (family friend of Gerald Reed, Northern Reception Center at 1. 28 If the Court prefers, plaintiff can file motions for writs to secure plaintiffs’ phone appearances.
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C. Plaintiffs Meet the Commonality and Typicality Requirements of Rule 23 Defendants argue that factual variances between members of the subclasses undermine the Plaintiffs’ assertion that their claims share a common question that drive the resolution of the litigation and that the named plaintiffs’ injuries are atypical. See Doc. 26 at 38. These arguments hinge on defendants’ mischaracterization of plaintiffs’ position. As noted repeatedly, plaintiffs do not seek a blanket release order. See Doc. 24-1 (Plaintiffs’ Proposed Remedial Plan). In an attempt to defeat commonality, the defendants describe a list of individualized factors that IDOC should consider prior to making a decision about a class member’s eligibility for medical furlough. Doc 26 at 38. The plaintiffs agree that some evaluation regarding individuals’ health and safety which balances public safety concerns must occur prior to any determination regarding medical furlough. The fact that, after an evaluation, some class members may be suitable for furlough while others may have to remain in IDOC’s physical custody does not destroy commonality. The commonality requirement does not require perfect uniformity. See e.g., Robert L. Meinders D.C., Ltd v. Emery Wilson Corp., 2016 WL 3402621, at *4 (S.D. Ill. June 21, 2016) (“‘Rule 23(a)(2) does not demand that every member of the class have an identical claim,’ and some degree of factual variation will not defeat commonality”) (quoting Spano v. The Boeing Co., 633 F.3d 574, 585 (7th Cir. 2011)); Rench v. TD Bank, N.A., 2018 WL 264121, at *3 (S.D. Ill. Jan. 2, 2018) (same); Braggs v. Dunn, 317 F.R.D. 634, 656 (M.D. Ala. 2016). Further, the individualized nature of the relief plaintiffs seek is entirely consistent with Rule 23. See DL v. D.C., 860 F.3d 713, 726 (D.C. Cir. 2017) (certifying a subclass of special education students under Rule 23(b)(2) when they sued for individualized assessments and educational programming to meet their specific needs because a single injunction was suitable to
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“provide relief to each member of the class” (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)); Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010) (approving certification for a class of individuals detained without bond hearings and seeking injunctive relief in the form of individual bond hearings even though some members of the class may not have been entitled to this relief and may not have suffered an actually cognizable injury); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 896 (7th Cir. 1999) (approving class certification in race discrimination case where plaintiffs sought individualized relief in the form of back pay); Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) (approving the certification of a Title VII class action for plaintiffs seeking individualized monetary relief in the form of back pay and front pay); Franco-Gonzales v. Napolitano, No. CV 10-02211 DMG DTBX, 2011 WL 11705815, at *14-15 (C.D. Cal. Nov. 21, 2011) (certifying a class of individuals in Department of Homeland Security custody alleging inadequate procedures in place to assess the mental competence of aliens in custody and provide them with safeguards even though relief would “vary based on the circumstances” of each case); In re Yahoo Mail Litig., 308 F.R.D. 577, 601 (N.D. Cal. 2015) (finding certification of an injunctive and declaratory relief class under Rule 23(b)(2) proper even though relief “might differ from individual to individual” because the class sought a “uniform relief from a common policy that… applies to all class members”); Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 388 (D. Colo. 1993) (certifying a “medical monitoring class” seeking relief for damages from radioactive and nonradioactive substances when relief would be based on “the individualized nature of each individual’s claim”).
The claims of the named plaintiffs are also typical of the subclasses they seek to represent. Named Plaintiffs and the members of the putative class meet the typicality requirement because they have all suffered from the same violations of their constitutional rights. See Rule 23(a)(3).
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Each named plaintiff here has a heighted chance of becoming critically ill or dying if they contract COVID-19 and each is currently subjected to a substantial risk of harm because of the IDOC’s failure to act with urgency regarding the medical furlough related evaluations and determinations. This is sufficient to satisfy typicality. See Oshana v. Coca-Cola, Co., 472 F.3d 506, 514 (7th Cir. 2006) (typicality is “meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large” (internal quotations omitted)). Certain factual distinctions between named plaintiffs and the class members do not defeat typicality. See Young v. Cnty of Cook, No. 06 C 552, 2007 WL 1238920, at *6 (N.D. Ill. Apr. 25, 2007) (“The likelihood of some range of variations in how different groups of new detainees were treated does not undermine the fact that the claims of each class share common factual basis and legal theories.”); Phipps v. Sheriff of Cook Ctny, 249 F.R.D. 298, 301 (N.D. Ill. 2008) (“That the particular conditions may differ slightly from one cell block to the next, or that there are factual distinctions between the actual injuries suffered by the [the named plaintiff] and the class members, does not defeat typicality under Rule 23(a)(3).”).
Plaintiffs have demonstrated that their class claims present common questions susceptible to class-wide resolution, that those common questions predominate over individualized ones, and that the experience of the named plaintiffs is typical of the class, and defendants do not dispute that the proposed class is sufficiently numerous and adequately represented by class counsel. Accordingly, this Court should grant plaintiffs’ request to preliminarily certify the class and grant class-wide relief should the Court approve plaintiffs’ motion for a temporary restraining order or preliminary injunction.
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Dated: April 8, 2020

Respectfully submitted,
/s/Elizabeth Mazur One of the Attorneys for the Plaintiffs

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465

Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Avenue, Suite 300 Chicago, IL 60602 (312) 241-0020
Sarah Grady Steve Weil Loevy & Loevy 311 N. Aberdeen Street, 3rd Floor Chicago, IL 60607 (312) 243-5900
Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411

Counsel for Plaintiffs

CERTIFICATE OF SERVICE I, Elizabeth Mazur, an attorney, certify that I served this pleading on all counsel of record by filing it through CMECF system.
/s/Elizabeth Mazur
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Case: 1:20-cv-02093 DCoorconuamviruesnint t#he: U2.S8.-: 1LatFesilteMda:p 0an4d/C0a8s/e2C0ouPnta- gThee N1eowfYo1rk6TPimaesgeID #:502 https://nyti.ms/39jvJEY

The Coronavirus Outbreak

LIVE Latest Updates Maps Markets What You Can Do Newsletter

WORLD > THE UNITED STATES

20,000 cases
0 Feb. 26

7-day
average |

New cases

|

TOTAL CASES
397,754
DEATHS
12,956
April 7

Coronavirus in the U.S.: Latest Map and Case Count
By The New York Times Updated April 8, 2020, 8:17 A.M. E.T.

Map New cases Latest news »

Cases by state Tips

More than 12,000 people with the coronavirus have now died in the United States, according to a New York Times database. The country’s death toll, which now far exceeds the number of people known to have died from the virus in China, doubled from 5,000 to 10,000 in fewer than ﬁve days.

Conﬁrmed cases in the United States

Total cases

Deaths

Per capita

10 cases

10,000 cases

Zoom and tap on map for more detail

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

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Note: The map shows the known locations of coronavirus cases by county. Circles are sized by the number of people there who have tested positive, which may differ from where they contracted the illness. Sources: State and local health agencies and hospitals.
Download county-level data for coronavirus cases in the United States from The New York Times on GitHub.
The increase in deaths comes as governors across the country seek scarce ventilators and as police ofﬁcers issue citations to residents who ignore orders to stay home. With infection rates expected to continue rising, Americans have been urged to wear face coverings in public, convention centers have been converted into makeshift medical centers and some states have released prisoners in an effort to limit the spread.
As of Wednesday morning, at least 397,754 people across every state, plus Washington, D.C., and four U.S. territories, have tested positive for the virus, according to a New York Times database.

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

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The outbreak in this country, which now has the highest number of known cases in the world, looks vastly different than it did a month or even a week ago. At the start of March, with extremely limited testing available, only 70 cases had been reported in the United States, most of them tied to overseas travel. And since the start of April, the number of deaths has grown by thousands, driven in part by doublings in death totals in Indiana, Florida and other states.

Where cases are rising fastest
Cases currently doubling every ...

3 days

5 days

7 days

Fewer than No cases 20 cases reported

Zoom and tap on map for more detail

Cases and deaths by state and county

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

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Search for a state or county

+ Show all counties

+ New York MAP » + New Jersey MAP »

▼ CASES

▼ PER 100,000 PEOPLE ▼ DEATHS

▼ PER 100,000 PEOPLE

SLOWER

FASTER

CASE GROWTH RATE

140,081 44,416

714 5,563 500 1,232

28
Feb. 26
14

Apr. 7

+ Michigan MAP »

18,852

189 845

8

+ California MAP »

17,540

45 447

1

+ Louisiana MAP »

16,284

349 582

12

+ Massachusetts MAP »

15,202

223 356

5

+ Florida MAP »

14,739

72 295

1

+ Pennsylvania MAP »

14,582

114 240

2

+ Illinois MAP »

13,549

106 384

3

+ Georgia MAP »

9,156

89 348

3

Show all
Notes: Growth rate shows how frequently the number of cases has doubled over the past week. Growth rate not shown for counties with less than 20 cases.

See our live coverage of the coronavirus outbreak for the latest news.

As the number of known cases reached into the hundreds, then the thousands, then the hundreds of thousands, life all over the country has changed in profound ways. Malls, salons and dine-in restaurants have been forced to close. The Kentucky Derby, the Indy 500 and baseball’s Opening Day were postponed. Some states have told people arriving from elsewhere to quarantine themselves. Others have warned that the pause on public life will likely last weeks more, and that the worst of the pandemic is still to come.
New reported cases by day in the United States

30,000 cases

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

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|

20,000

New cases

10,000
0 Feb. 26

7-day average
|

April 7

The New York Times is engaged in a comprehensive effort to track the details of every conﬁrmed case in the United States, collecting information from federal, state and local ofﬁcials around the clock. The numbers in this article are being updated several times a day based on the latest information our journalists are gathering from around the country. The Times has made that data public in hopes of helping researchers and policymakers as they seek to slow the pandemic and prevent future ones.
See our maps tracking the coronavirus outbreak around the world.

New York: 140,000 cases have been identiﬁed.
No state has been hit harder than New York, which accounts for about half the country’s coronavirus-related deaths and where new cases continue to be reported each day by the thousands. With hospitals stretched thin and medical equipment in short supply, the state has turned to Oregon and China for emergency shipments of ventilators.
State health ofﬁcials anticipated particularly heavy mortality rates this week, and Tuesday’s total of 731 deaths was the highest of any day so far. “Behind every one of those numbers is an individual, is a family, is a mother, is a father, is a brother, is a sister,” Gov. Andrew M. Cuomo said at a news conference Tuesday. “So, a lot of pain again today."
People with the virus have died in more than 20 New York counties, including more than 230 victims each in Nassau, Suffolk and Westchester Counties. But New York City has faced the worst, with thousands of known cases in each borough. The city’s mayor, Bill de Blasio, compared the pandemic to “many Katrinas.” A Manhattan convention center began

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accepting patients. A Navy hospital ship was docked in the city. A ﬁeld hospital had been set up in Central Park, and another was planned for a cathedral.
“This is going to be a reality where you are going to have many cities and states simultaneously in crisis, needing health care professionals, needing ventilators,” Mr. de Blasio said on MSNBC’s “AM Joy.”
Though New York has had by far the most cases, other Northeastern states have also seen their case totals increase rapidly. New Jersey now has the second-highest number of known cases in the country. In Massachusetts, more than 2,000 new cases were announced over the weekend. In Connecticut, more than 200 people have died.

|

New reported deaths by day in the United States
1,500 deaths

New deaths

1,000

500
0 Feb. 26

7-day average
|

April 7

See how the rate of deaths has changed over time in different states and countries.
In Americaʼs nursing homes, outbreaks grow.
Across the country, a pattern has played out with tragic consistency: Someone gets sick in a nursing home. Soon, several residents and employees have the coronavirus. The New York Times has identiﬁed more than 2,240 cases of the coronavirus associated with nursing homes or longterm care facilities across the nation.

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

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Older people and those with underlying health problems are most vulnerable to Covid-19, making the consequences of a nursing home outbreak especially devastating. At least 37 deaths have been linked to an outbreak at the Life Care nursing facility in Kirkland, Wash. Many of the victims were in their 80s or 90s.
In New Orleans and Fort Lauderdale, Fla., multiple deaths have been tied to senior centers. In Wisconsin, the National Guard was sent to a longterm care facility where three people have died. Similar outbreaks have been reported in Texas, in South Dakota and in Anderson, Ind., where ofﬁcials said Monday that 11 residents had died.
Though many of the ﬁrst coronavirus cases in the United States were tied to overseas travel, localized outbreaks have become increasingly common. New clusters in nursing homes and other settings, including a meatpacking plant in Iowa and a shipyard in Virginia, are emerging each day. Public health ofﬁcials often are unable to identify how people are becoming ill. The table below shows known cases for which Times journalists have been able to identify how the virus was contracted or a connection to other cases.

CASES CONNECTED TO
Cook County Jail; Chicago Aboard the U.S.S. Theodore Roosevelt; Guam Travel within the U.S. Travel overseas Life Care nursing facility; Kirkland, Wash. Community in New Rochelle, N.Y. Canterbury Rehabilitation Healthcare Center; Henrico, Va. Gallatin Center for Rehabilitation and Healing; Gallatin, Tenn. Biogen conference in Boston Parnall Correctional Facility; Jackson, Mich. Pleasant View Nursing Home; Mount Airy, Md.
https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

CASES
387 230 188 178 129 119 118 115 109 103
98
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CASES CONNECTED TO

CASES

Stateville Correctional Center; Crest Hill, Ill.

93

Southeast Nursing and Rehabilitation Center; San Antonio

87

The Resort at Texas City nursing home; Texas City, Texas

83

Denton State Supported Living Center; Denton, Texas

73

Golden Crest Nursing Centre; North Providence, R.I.

59

Federal Medical Center prison facility; Butner, N.C.

57

Cedar Mountain Post Acute Care Facility; Yucaipa, Calif.

57

Macomb Correctional Facility; Lenox, Mich.

55

Oak Hill Center nursing home; Pawtucket, R.I.

54

Travel in Egypt

52

Frontier Health & Rehabilitation; St. Charles, Mo.

50

Birchwood Terrace rehabilitation center; Burlington, Vt.

48

Regency Canyon Lakes rehabilitation and nursing; Kennewick, Wash.

45

Signature HealthCARE long-term care; Cookeville, Tenn.

44

Careage of Whidbey; Coupeville, Wash.

44

Adviniacare long-term care; Wilmington, Mass.

44

Federal Correctional Complex; Oakdale, La.

43

Diamond Princess cruise ship

43

Long-term care facility; Willowbrook, Ill.

42

Lambeth House senior living facility; New Orleans

42

Life Care Center of Burlington; Burlington, Kan.

41

Briarwood Nursing Home and Rehab; Little Rock, Ark.

41

Life Care nursing; Richland, Wash.

40

Federal Correctional Institution; Danbury, Conn.

40

Travel in Italy

39

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

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CASES CONNECTED TO

CASES

Greenville Health and Rehabilitation; Greenville, Ohio

39

Father Baker Manor Nursing Home; Orchard Park, N.Y.

39

First Assembly of God; Greers Ferry, Ark.

37

Metron long-term care; Cedar Springs, Mich.

36

Federal Correctional Complex; Lompoc, Calif.

35

Peconic Landing long-term care; Greenport, N.Y.

34

Healthcare rehabilitation/assisted living facility; Harris county, Texas

34

Shuksan Healthcare Center; Bellingham, Wash.

32

Lakeland Correctional Facility; Coldwater, Mich.

31

Family of Caring nursing home; Montclair, N.J.

31

Extended Care Hospital of Riverside

30

Sundale Rehabilitation and Long-Term Care; Morgantown, W.Va.

29

St. Joseph's Senior Nursing Home; Woodbridge, N.J.

29

Spring break trip from Austin, Texas, to Mexico

28

Federal Correctional Complex; Yazoo City, Miss.

28

Canyon Springs Post-Acute nursing and rehabilitation; San Jose, Calif.

28

Skagit Valley Chorale practice; Mount Vernon, Wash.

27

Orinda Care medical center; Orinda, Calif.

27

Douglas County Health Center; Omaha

27

Women's Huron Valley Correctional Facility; Ypsilanti, Mich.

26

Victoria Manor long-term care; Cape May, N.J.

26

Mennonite Home Communities senior center; Lancaster, Pa.

26

Fairacres Manor long-term care; Greeley, Colo.

26

Benchmark Senior Living at Ridgeﬁeld Crossings; Ridgeﬁeld, Conn.

26

Tyson Foods meatpacking plant; Columbus Junction, Iowa

25

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CASES CONNECTED TO

CASES

Sunrise View Assisted Living; Everett, Wash.

25

Post Acute Medical Specialty Hospital of Victoria North; Victoria, Texas

25

La Vida Llena long-term care; Albuquerque, N.M.

25

Mitchell Manor nursing and rehabilitation; Mitchell, La.

24

Riverbend Post Acute Care Center; Kansas City, Kan.

23

Carter House assisted living; Blair, Neb.

23

Federal Correctional Complex; Forrest City, Ark.

22

Heritage Specialty Care; Cedar Rapids, Iowa

21

Grand Princess cruise in March

21

Grand Princess cruise in February

21

Atria Willow Wood assisted living; Fort Lauderdale, Fla.

21

Josephine Caring Community; Stanwood, Wash.

18

A. Holly Patterson Extended Care Facility; Uniondale, N.Y.

18

Lansing Correctional Facility; Lansing, Kan.

17

Virginia Correctional Center for Women, Goochland; Goochland, VA

16

Soldiers' Home in Holyoke; Holyoke, Mass.

16

Laurel Brook Rehabilitation and Healthcare Center; Mt. Laurel, N.J.

16

Edward C. Allworth Veterans' Home; Lebanon, Ore.

16

Travel in China

15

Green River Correctional Complex; Central City, Ky.

14

Bethany Pointe Health, Anderson, Ind.

14

United States Penitentiary; Atlanta

13

Rolling Meadows Senior Living facility; Taylorville, Ill.

13

Federal Correctional Institution Elkton; Lisbon, Ohio

13

Covenant Living at Windsor Park long-term care; Carol Stream, Ill.

13

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CASES CONNECTED TO

CASES

Carlton Senior Living; Pleasant Hill, Calif.

13

Bonaventure of Tri-Cities senior care; Richland, Wash.

13

Upper Valley Medical Center; Troy, Ohio

12

Heartis Arlington assisted living and memory care; Arlington, Texas

12

California Institution for Men prison; Chino, Calif.

12

Detroit Reentry Center; Detroit

11

Show less

The growth in cases of unknown origin has signaled to public health ofﬁcials that Americans are being exposed to the virus at work, at shopping centers and in travel hubs, prompting calls for people to stay home. Among recent deaths: a bus driver in Detroit, a parks worker in Kansas and a Chicago police ofﬁcer.
Midwestern cities face new onslaught
When the coronavirus began spreading in the United States, the vast majority of cases were in coastal states. Illinois and Wisconsin had only a few cases. Michigan, Missouri and Ohio had none.
In just a few weeks, the virus has raced inland, with thousands of known cases in Midwestern urban centers and deaths being announced by the dozens.
In Detroit, more than 5,400 cases have been identiﬁed and at least 220 people have died. At least 49 deaths and 1,300 cases have been reported in Milwaukee County, Wis. In St. Louis, which had no known cases in midMarch, two more deaths were announced on Sunday. And in Chicago, where an infant is among at least 135 people who have died, there are more than 5,500 cases, ventilators might soon run out and a lakefront convention center has been prepared to accept patients if hospitals reach capacity.

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

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“This is a facility that we stood up because the human population is susceptible to this virus at a scale never before seen in our lifetimes,,” Gov. J.B. Pritzker of Illinois said recently after touring the convention center hospital.

Police departments face an invisible threat
While workers in many industries have stopped going to the ofﬁce, police ofﬁcers have continued their daily patrols, even in the hardest-hit areas.
As the outbreak has grown, so, too, has the number of ofﬁcers infected with the coronavirus in cities like Detroit, where at least two police employees have died from the virus, many more have been infected and others have been told to self-isolate.
“Some have been quarantined and want to come back to work,” Chief James Craig of the Detroit police said about his ofﬁcers recently, a few days before he also tested positive for the virus. “These are the same people, let’s not forget, who when they are going to a dangerous situation like shots being ﬁred, they’re running toward the danger. This is no different.”
The effect on law enforcement ofﬁcers has been widespread. In Aurora, Ill., the police chief was infected with the virus. In New Jersey, at least 700 police ofﬁcers and state troopers have tested positive. So have dozens of police ofﬁcers in Nassau County, N.Y., and dozens more in Chicago, where an undercover narcotics ofﬁcer died after contracting the virus.
“For ﬁrst responders, you just don’t often have the opportunity to isolate,” said Dermot F. Shea, the police commissioner in New York City, whose department has lost two civilian workers and a detective to the coronavirus.

Louisiana: Deaths and cases continue to grow
At the start of March, with large outbreaks already reported on both coasts, ofﬁcials in Louisiana had not yet identiﬁed a single case of the coronavirus. But in the weeks since, the state has been pummeled. At least 16,000 Louisianans had been infected and at least 582 had died.

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Louisiana announced more than 70 new deaths on Tuesday, for a total of 588, a number that had more than doubled in a week. More than 1,900 people were hospitalized in the state, including more than 500 on ventilators, Gov. John Bel Edwards said at a news conference on Tuesday.
Yet he said that new hospital admissions were down, a promising sign.
“We believe we might be starting to see the beginning of the ﬂattening of the curve,” he said on Monday. "The fear is I'm telling people that, and they will say, the task at hand is accomplished, we can go back to doing whatever it is that we normally do, behaving as we normally would."
"That is exactly the wrong answer," he said. "If we started ﬂattening the curve, it is only because of the mitigation measures, it is only because of the social distancing and the improved hygiene practices."
He said it was too soon to know whether the state had peaked and he urged people to be vigilant about following the statewide stay-at-home order. "This is not the time to become lax and ease up," he said.
Across the country, hundreds of counties are reporting cases of the illness. Here is a list of cases Times journalists have collected. Cases in New York City and Kansas City, Mo., both of which span several counties, are grouped together.

Hot spots: Counties with the highest number of cases per resident

COUNTY
Blaine, Idaho Rockland, N.Y. Westchester, N.Y. Orleans, La. Nassau, N.Y. Randolph, Ga. Dougherty, Ga. Suffolk, N.Y.

▼ CASES

▼ PER 100,000 PEOPLE

SLOWER

FASTER

CASE GROWTH RATE

428 5,990

1,946 1,851

Feb. 26

Apr. 7

14,804 1,528

4,942 1,268

16,610 1,224

83 1,171

973 1,069

15,561 1,046

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COUNTY

▼ CASES

▼ PER 100,000 PEOPLE

SLOWER

FASTER

CASE GROWTH RATE

Terrell, Ga.

92 1,038

St. John the Baptist, La.

415

955

Show all
Note: Table includes the top counties with at least 20 reported cases when adjusted for population.

Outbreaks in jails and prison could be hard to contain
At the county jail in Chicago, at least 291 cases involving inmates and staff members have been tied to the virus. In South Dakota, several inmates escaped from a women’s prison after someone there tested positive. In the federal system, at least 174 inmates and prison workers across the country have tested positive for the virus. At least seven federal inmates have died, mainly in Louisiana. So have state prisoners in Illinois, Massachusetts and Michigan.
The New York Times has spoken with more than a dozen workers in the federal Bureau of Prisons in recent days who have said that federal prisons are ill-prepared for a coronavirus outbreak. Many lack basic supplies, like masks, hand sanitizer and soap.
“We do not have enough gloves,” said a prison employee at the U.S. Penitentiary in Atlanta, where a cluster of coronavirus cases has appeared, involving at least two inmates and one staff member. The worker spoke on the condition of anonymity for fear of retaliation from the Bureau of Prisons. “We do not have enough masks; we do not have the supplies needed to deal with this. We don’t have enough space to properly quarantine inmates.”

Tracking the Coronavirus

World | United States | Deaths by country and state | Growth rates in U.S. cities | Stay-at-home orders by state

State by state

Alabama

Alaska

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

Arizona

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Arkansas

Maryland

Oregon

California

Massachusetts

Pennsylvania

Colorado

Michigan

Puerto Rico

Connecticut

Minnesota

Rhode Island

Delaware

Mississippi

South Carolina

District of Columbia

Missouri

South Dakota

Florida

Montana

Tennessee

Georgia

Nebraska

Texas

Hawaii

Nevada

Utah

Idaho

New Hampshire

Vermont

Illinois

New Jersey

Virginia

Indiana

New Mexico

Washington

Iowa

New York

West Virginia

Kansas

North Carolina

Wisconsin

Kentucky

North Dakota

Wyoming

Louisiana

Ohio

Maine

Oklahoma

What You Can Do
Experts’ understanding of how the virus spreads is still limited, but there are four factors that most likely play a role: how close you get; how long you are near the person; whether that person projects viral droplets on you; and how much you touch your face.
If your community is affected, you can help reduce your risk and do your part to protect others by following some basic steps:
• Wash your hands! Scrub with soap and water for at least 20 seconds, and then dry them with a clean towel or let them air dry.
• Keep distance from sick people. Try to stay six feet away from anybody showing ﬂu- or cold-like symptoms, and don’t go to work if you’re sick.
• Prepare your family, and communicate your plan about evacuations, resources and supplies. Experts suggest stocking at least a 30-day supply of any needed prescriptions. Consider doing the same for food staples, laundry detergent and diapers, if you have small children.

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Hereʼs a complete guide on how you can prepare for the coronavirus outbreak.
Note: Data are based on reports by states and counties at the time of publication. Local governments may revise reported numbers as they get new information. Some deaths may be reported by ofﬁcials in two different jurisdictions. When possible, deaths have been reported here in the jurisdiction where the death occurred. Read more about this data here. While the ﬁrst known case in the United States was announced on Jan. 21, charts show cases since Feb. 26, when American public health ofﬁcials ﬁrst identiﬁed community transmission of the virus.
*Cases in New York City and Kansas City, Mo., both of which span several counties, are grouped together. Cases in a state that have been reported without a speciﬁc county are listed as county “unknown.”
Population data from Census Bureau.
By Sarah Almukhtar, Aliza Aufrichtig, Matthew Bloch, Keith Collins, Amy Harmon, Rich Harris, Jon Huang, Danielle Ivory, K.K. Rebecca Lai, Allison McCann, Richard A. Oppel Jr., Jugal K. Patel, Anjali Singhvi, Charlie Smart, Mitch Smith, Derek Watkins, Timothy Williams, Jin Wu and Karen Yourish. · Reporting was contributed by Jordan Allen, Jeff Arnold, Mike Baker, Samone Blair, Nicholas Bogel-Burroughs, Maddie Burakoff, Christopher Calabrese, Robert Chiarito, Matt Craig, Brandon Dupré, John Eligon, Timmy Facciola, Matt Furber, Lauryn Higgins, Jake Holland, Jon Huang, Danya Issawi, Jacob LaGesse, Patricia Mazzei, Jesse McKinley, Miles McKinley, Sarah Mervosh, Andrea Michelson, Steven Moity, Thomas Gibbons-Neff, Richard A. Oppel Jr., Azi Paybarah, Sean Plambeck, Scott Reinhard, Thomas Rivas, Alison Saldanha, Alex Schwartz, Libby Seline, Anjali Singhvi, Alex Traub, Maura Turcotte, Tracey Tully, Lisa Waananen Jones, Amy Schoenfeld Walker and Jeremy White. · Data acquisition and additional work contributed by Will Houp, Andrew Chavez, Michael Strickland, Tiff Fehr, Miles Watkins, Josh Williams, Albert Sun, Shelly Seroussi, Nina Pavlich, Carmen Cincotti, Ben Smithgall, Andrew Fischer, Rachel Shorey, Blacki Migliozzi, Alastair Coote, Steven Speicher and Michael Robles.

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Case: 1:20-cv-02093 Document #: 28-2 Filed: 04/08/20 Page 2 of 2 PageID #:519

CaseC: a1s:2e04-c:0v1-0-c2v0-90313D5o1c-uJSmTentD#o:c2u8m-3enFtil3e2d6: 104/F08ile/2d00P4a/0g4e/210ofP1a5gPea1geoIfD15#:520

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-c2v0-90313D5o1c-uJSmTentD#o:c2u8m-3enFtil3e2d6: 104/F08ile/2d00P4a/0g4e/220ofP1a5gPea2geoIfD15#:521

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

CaseC: a1s:2e04-c:0v1-0-c2v0-90313D5o1c-uJSmTentD#o:c2u8m-3enFtil3e2d6: 104/F08ile/2d00P4a/0g4e/2104 oPf a1g5eP1a4geoIfD15#:533

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-c2v0-90313D5o1c-uJSmTentD#o:c2u8m-3enFtil3e2d6: 104/F08ile/2d00P4a/0g4e/2105 oPf a1g5eP1a5geoIfD15#:534

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-02093 Document #: 28-4 Filed: 04/08/20 Page 1 of 3 PageID #:535
DECLARATION OF KAREN McCARRON April 7, 2020
1. My name is Karen McCarron and I currently reside at Logan Correctional Center in Lincoln, Illinois. I have been at Logan since March 2013. Prior to being incarcerated, I earned an M.D. from Southern Illinois University and practiced as a doctor for 11 years.
2. I currently reside in Housing Unit 6, where many older and disabled prisoners reside.
3. I have also worked as an ADA worker, helping to take care of elderly and disabled prisoners in the facility. Many of the people I have worked with as an ADA worker have serious medical conditions such as diabetes, hypertension, severe osteoarthritis, blindness, Huntington’s disease, heart failure, atrial fibrillation, seizures, Parkinson’s, obesity, and cancer. Part of my job is to help them access medical care at Logan. I often take people to medical appointments and encourage them to share information that I know is important with their medical providers. Through this work, I have developed an understanding of how the medical system works at Logan.
4. Based on my medical training and experience, I am deeply concerned about Logan’s ability to manage COVID-19.
5. Medical advice issued by the Center for Disease Control and other leading health organizations call for precautions such as social distancing and frequent hand washing with soap and water in order to help prevent the spread of the virus. Across the country, colleges and universities with dormitories and similar living arrangements have shut down based on the simple fact that social distancing is impossible in congregate settings.
1

Case: 1:20-cv-02093 Document #: 28-4 Filed: 04/08/20 Page 2 of 3 PageID #:536
6. Here at Logan, it is impossible to follow the CDC’s advice about social distancing and frequent hand washing. We live in dormitory-style housing, with four to six women per room.
7. About 60 women share a bathroom, which contains 3 working toilets, 4 sinks, and 4 showers. Using these facilities, it is impossible to social distance. Sinks are often out of order or do not produce hot water, making it impossible for so many women to maintain proper hand hygiene.
8. Although there are not yet any confirmed cases of COVID-19 at Logan, it will inevitably come and spread quickly through the facility. Based on media reports, I believe that anywhere between 40-80% of the population will become positive, possibly even more given the congregate setting that we live in. While those of us at Logan want to do our part to help “flatten the curve” of infection, we are simply not able to do so on account of the congregate living environment and inadequate sanitation.
9. Many of the women who I live with are medically vulnerable to COVID-19. Without naming names, I know many women over 55 and many have medical conditions that make them vulnerable to COVID-19, including cancer, diabetes, hypertension, obesity, asthma, chronic obstructive pulmonary disease, heart conditions, including heart failure, Parkinson’s, difficulty swallowing, lupus, genetic immunodeficiency, and multiple sclerosis. If these women are exposed, there is a good chance they will need to be on ventilator and many will likely die. To my knowledge, the infirmary has fewer than a dozen beds and only three isolation rooms. I believe that based on physical space alone, the infirmary could not handle more than 17 patients who require infirmary-level care. Moreover, even without COVID-19, the beds in the infirmary are ordinarily full of patients who require care.
1

Case: 1:20-cv-02093 Document #: 28-4 Filed: 04/08/20 Page 3 of 3 PageID #:537
10. Nor do I believe staffing is adequate to care for the widespread illness COVID-19 will cause once it arrives at Logan. The infirmary is staffed by only one certified nursing assistant and one to two nurses. There is also one doctor responsible for providing care not only to the patients in the infirmary, but to all of the approximately 1,700 women at Logan. Even if a housing unit is converted to house COVID-19-positive inmates, it is not a medical facility and lacks the equipment, sanitation, staffing, and layout necessary to save lives.
11. I gave this statement over the phone to Sarah Blair, an attorney from Uptown People’s Law Center, on March 31, 2020 and gave my verbal consent for Ms. Blair to electronically sign this statement on my behalf on March 31, 2020.
12. I read and reviewed this statement on April 7, 2020, and swear under penalty of perjury that the statement is accurate and true.
/s/ Karen McCarron Karen McCarron #R82817 Logan Corr. Center
1

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Case: 1:20-cv-02093 Document #: 28-5 Filed: 04/08/20 Page 2 of 2 PageID #:539

Case: 1:20-cv-02093 Document #: 28-6 Filed: 04/08/20 Page 1 of 8 PageID #:540

Declaration of LaDonna Sipes

I, LaDonna Sipes, declare as follows:

1. My date of birth is

and I live at

2. My daughter, Amber Watters, is currently housed at Logan Correctional Center.

3. I am willing to allow Amber to live with me and safely quarantine. I live in a singlefamily home, so Amber will not be in close physical contact with others.

4. I am able and willing to help Amber comply with any and all requirements required by the IDOC for the duration of Amber’s home confinement.

5. Prior to being incarcerated, Amber was in a bad car accident where she broke her back. Amber is awaiting therapy needed to fully recover.

6. Amber could easily access my primary care physician located in Palestine for medical treatment if needed.

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

LaDonna Sipes (electronic signature)

Case: 1:20-cv-02093 Document #: 28-6 Filed: 04/08/20 Page 2 of 8 PageID #:541

Declaration of Valerie Ott

I, Valerie Ott, declare as follows:
1. My name is Valerie Ott and my date of birth is I am active and in good health.

I live at

2. My son, Danny Labosette, is currently housed at Robinson Correctional Center in Robinson, Illinois. He is 56 years old and is a double amputee. He also has Hepatitis C.

3. If Danny is released or transferred, I would welcome him into my home, which is retrofitted to accommodate wheelchairs. He would be able to safely quarantine there, and I have been following all of the social distancing guidelines. My home is on five acres of land in a rural area, so Danny would be able to avoid contact with anyone.

4. I would be able to facilitate any requirements of Danny’s release or transfer, including regular check ins and staying in the house if necessary. He would also be able to comply with all laws and IDOC requirements while living with me.

5. There are two medical clinics in Mayl where Danny could receive treatment, and I would be able to provide transportation for him.

I declare under penalty of perjury that the foregoing is true and correct.
Valerie Ott (electronic signature)

Case: 1:20-cv-02093 Document #: 28-6 Filed: 04/08/20 Page 3 of 8 PageID #:542

Declaration of Prestina Tate

I, Prestina Tate, declare as follows:

1. My name is Prestina Tate and my date of birth is

My address is

2. My brother, Carl Tate, is currently housed in Danville Correctional Center. Carl suffers from hypertension and has to take medication for it.
3. If Carl is released or transferred, I would welcome him into my home. He would be able to safely quarantine there, and I have been following all of the social distancing guidelines.
4. I would be able to help Carl comply with any conditions of his release or transfer, like regularly checking in with IDOC or staying in the house if that he what is required. When he is living with me, Carl will be able to comply with all laws and all of IDOC’s requirements.
5. Like Carl, I also suffer from hypertension and see a doctor for it. If Carl is able to come and live with me, I can help connect him to my doctor so that he can continue receiving treatment and get the medication that he takes. I will be able to facilitate transportation so that Carl can get to the doctor.
I declare under penalty of perjury that the forgoing is true and correct.
Prestina Tate (signed electronically)

Case: 1:20-cv-02093 Document #: 28-6 Filed: 04/08/20 Page 4 of 8 PageID #:543

Declaration of Patty Best

I, Patty Best, declare as follows:

1. My name is Patty Best. My date of birth is

, and I currently reside at

2. James Money will live with me if he is medically furloughed.I have been preparing for his potential transfer. In August 2019, a parole officer came to my current address and approved my home as a host site for James. On April 6, I called the parole office to clarify that my home would need a landline for James’s electronic monitoring. I have scheduled an appointment on April 9 for that landline to be installed. My home is also a safe place for James to live, given his medical needs. I stay at home and do not work, reducing the potential for bringing the virus into my home and reducing the possibility that, if James has been exposed, it will be brought into the community.
3. I am fully capable and willing to assist James in complying with the terms of his furlough. I will help with regular calls, will ensure he will stay in the home and will comply with all IDOC requirements. James is planning on keeping his doctors at SIU Medicine who are familiar with his unique medical situation: Dr. Jakoby, Dr. Sharma, and dDr. Rao. I am also eager to schedule his appointments with these doctors. Because I am James’s legal power of attorney, I will schedule these appointments as soon as possible, if furloughed.
4. James has a unique medical situation and is threatened in more than one way by remaining in IDOC custody. James is not only immunocompromised, but his cancer is currently untreated and at risk of progressing without treatment. James has stage three metastatic papillary thyroid cancer. James was diagnosed in 2016. He has had five surgeries, most recently in January 2020. In January, they removed one of the parathyroids. Eighty of his lymph nodes that contain cancer have been removed in addition to a full thyroidectomy. They need to keep removing cancer as it continues to grow in his thyroid bedding. Because his body rejected radiation, the next step was to start chemotherapy. However, because of the COVID-19 lockdown, IDOC cancelled his chemotherapy appointment in March 2020. James needs chemotherapy to avoid another surgery.
I declare under penalty of perjury that the foregoing is true and correct.
Patty Best

Case: 1:20-cv-02093 Document #: 28-6 Filed: 04/08/20 Page 5 of 8 PageID #:544 (signed electronically)

Case: 1:20-cv-02093 Document #: 28-6 Filed: 04/08/20 Page 6 of 8 PageID #:545

Case: 1:20-cv-02093 Document #: 28-6 Filed: 04/08/20 Page 7 of 8 PageID #:546

'HFODUDWLRQ RI 6LRYKDQ 7XFNHU

I, Siovhan Tucker, declare as follows:

1. My name is Shiovhan Tucker. My date of birth is .

, and I currently reside at

2. My uncle, Gerald Reed, can live with me if he is released or furloughed, where he can safely quarantine for any time period necessary. I have a spare bedroom where Gerald could stay immediately.

3. I am able to facilitate any requirements of Gerald’s release or furlough. I will make sure he is able to comply with all the laws and IDOC requirements while living with me, including ensuring that he stays in the house and is able to make regular call-ins.

I declare under penalty of perjury that the foregoing is true and correct.
Siovhan Tucker (electronic signature)

Case: 1:20-cv-02093 Document #: 28-6 Filed: 04/08/20 Page 8 of 8 PageID #:547

 
 Case: 1:20-cv-02093 Document #: 38 Filed: 04/10/20 Page 1 of 48 PageID #:587

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

JAMES MONEY, et al. Plaintiffs,
v. J.B. PRITZKER, et al.
Defendants.

)

)

)

Case No. 20-cv-2093

)

)

Judge Steven C. Seeger, assigned

)

)

Judge Robert M. Dow, Jr., emergency

)

)

JAMES MONEY, et al.

)

)

Petitioners,

)

)

v.

)

)

ROB JEFFREYS, in his official capacity )

as DIRECTOR OF THE ILLINOIS

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent.

)

)

Case No. 20-cv-2094 Judge John F. Kness, assigned Judge Robert M. Dow, Jr., emergency

MEMORANDUM OPINION AND ORDER1 In these two cases, Plaintiffs have raised issues of great importance concerning the safety and well-being of inmates in the custody of the Illinois Department of Corrections during the current national crisis occasioned by the COVID-19 pandemic. As myriad citations in both sides’ briefs confirm, this issue has occupied all three branches of government in both the federal and state governments in recent weeks. News reports are replete with actions taken by Governors,

1 Judge Dow is addressing this matter as emergency judge pursuant to paragraph 5 of Second Amended General Order 20-0012.

Case: 1:20-cv-02093 Document #: 38 Filed: 04/10/20 Page 2 of 48 PageID #:588
Attorneys General, state Supreme Courts, and individual trial judges to accelerate the release of inmates and detainees where consistent with overall public safety and to protect those who remain in custodial settings. And rightly so, for the stakes are incredibly high for Plaintiffs, their families, and the public at large. As emphasized by the medical experts whose appearances at daily press briefings rivet the nation, nobody is immune from this virus. However, due to the way in which the virus spreads, individuals living in congregate settings—such as nursing homes and prisons— are especially vulnerable because of difficulty of observing social distancing and recommended hygiene practices in close quarters.
At the outset, it is worth mentioning that Plaintiffs do not ask this Court to order the Illinois Department of Corrections to improve the conditions of confinement. That is, Plaintiffs do not ask to improve the cleanliness of the prisons, or increase the amount of space between inmates at each facility, and so on. Instead, Plaintiffs ask this Court to force the state executive branch to start a process for the potential release of thousands of inmates, through medical furlough or home detention under state law, and do so within one week. The scope of the potential release is sweeping. By their own admission, Plaintiffs want a process to potentially release at least 12,000 inmates, almost one-third of the prison population in Illinois. Defendants submit that they have a process and already are doing most of what Plaintiffs are requesting in their proposed remedial plan—albeit not at the pace Plaintiffs would like to see.
The immediate question before the Court is whether Plaintiffs are entitled to some form of immediate relief—in the form of a temporary restraining order, a preliminary injunction, or writs of habeas corpus—imposed by a federal court on state officials. For several reasons explained below, the Court answers that question in the negative and denies the requested relief. Plaintiffs are correct in asserting that the issue of inmate health and safety is deserving of the highest degree
2

Case: 1:20-cv-02093 Document #: 38 Filed: 04/10/20 Page 3 of 48 PageID #:589
of attention. And the record here shows that the authorities in this state are doing just that, with constantly evolving procedures increasing the number of inmates released on a daily basis. But the release of inmates requires a process that gives close attention to detail, for the safety of each inmate, his or her family, and the community at large demands a sensible and individualized release plan—especially during a pandemic. Even if the steps Illinois has taken and the pace with which they are proceeding is not exactly what Plaintiffs want, those steps and that pace plainly pass constitutional muster. Plaintiffs have provided no convincing reason for a federal court to intrude here and now—either to issue a blanket order for the release of thousands of inmates or to superimpose a court-mandated and court-superintended process on the mechanisms currently in place to determine which IDOC inmates can and should be safely removed from prison facilities at this time.
The care of state inmates is entrusted, in the first instance, to state officials, unless the conditions rise to the level of constitutional violations. And state law empowers state officials with the discretion to release individual inmates for medical furlough or home detention, if they deem it appropriate. This Court concludes that Plaintiffs have no likelihood of success on their constitutional claims because the record does not support the notion that the Defendants are showing deliberate indifference to the inmates’ plight or discriminating against inmates with disabilities. Even if they had a colorable claim, Plaintiffs’ request for release is untenable on a class-wide basis because the possibility of release is an inherently inmate-specific inquiry. Other considerations – such as the public interest from the potential release of thousands of inmates – weigh heavily in the analysis, too. In the end, this Court concludes that Plaintiffs are not entitled to their request for extraordinary relief, even in these extraordinary times.
3

Case: 1:20-cv-02093 Document #: 38 Filed: 04/10/20 Page 4 of 48 PageID #:590
I. Background2 The named Plaintiffs are ten individuals convicted of a range of felonies, including murder,
aggravated kidnapping, and attempted robbery. See Money v. Pritzker, 20-cv-2093 (hereinafter “Pritzker”), [26 at ¶¶ 93-102]. They are currently serving sentences in various Illinois Department of Corrections (“IDOC”) facilities, none of which are in Cook County. See [id. at ¶¶ 8-17.] IDOC operates 28 adult correctional facilities throughout the State of Illinois, houses around 37,000 individuals, and has 11,600 employees. [Id. at ¶ 69.] Plaintiffs have brought two purported class action lawsuits—Pritzker and Money v. Jeffreys (hereinafter “Jeffreys”), 20-cv-2094—seeking release of prisoners from IDOC facilities in light of the COVID-19 pandemic.
Money v. Pritzker, 20-cv-2093, contains three counts, of which the first two are brought under 42 U.S.C. § 1983. Count I asserts that Defendants are violating the Eighth Amendment through deliberate indifference to a serious risk of harm, while Count II asserts a violation of Plaintiffs’ right to due process under the Fourteenth Amendment. Count III asserts violations of the Americans with Disabilities Act (“ADA”). The complaint names as defendants J.B. Pritzker, Governor of Illinois, and Rob Jeffreys, Director of the Illinois Department of Corrections. Money v. Jeffreys, 20-cv-2094, is a petition for writs of habeas corpus under 28 U.S.C. § 2254 for relief from custody in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. It names Rob Jeffreys as the respondent. Both suits are purportedly brought on behalf of the named plaintiffs and all similarly situated individuals.
2 The facts are taken from the plaintiffs’ complaints and from materials cited by the parties that are the proper subject of judicial notice. The Court may take judicial notice of material whose contents are “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned,” Driebel v. City of Milwaukee, 298 F.3d 622, 622 n.2 (7th Cir. 2002) (quoting Fed. R. Evid. 201(b)), and documents incorporated in a complaint, Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002).
4

Case: 1:20-cv-02093 Document #: 38 Filed: 04/10/20 Page 5 of 48 PageID #:591
The foundation of each suit is essentially the same: Plaintiffs argue that the prison setting makes them (and other purported class members) especially vulnerable to COVID-19, that the state government’s responses to the danger are insufficient or not fast enough or both, and that the only way to solve the problem is moving prisoners out of prisons.
A. Factual Background COVID-19 is a disease caused by a novel coronavirus that began infecting humans in late 2019. Symptoms include fever, cough, shortness of breath, congestion, sneezing, fatigue, and diarrhea. Pritzker, [1 at ¶ 25.]3 While some cases are mild, others require medical intervention, including hospitalization and intensive care. [Id.] The virus spreads from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects. [Id.] It is highly contagious. Currently, there is no vaccine to protect against infection by COVID-19. To prevent infection and mitigate the spread of the virus, the Center for Disease Control (“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. [1. at ¶ 31.] The CDC recommends avoiding gatherings of more than 10 people. [Id. at ¶ 32.] Individuals in congregate environments—places where people live, eat, and sleep in close proximity—face increased danger of contracting COVID-19, as demonstrated by the rapid spread of the virus through cruise ships and nursing homes. [Id.]
3 The complaints in the Pritzker Section 1983 action and the Jeffreys habeas action are quite similar, and in some places identical. For simplicity and to avoid duplication, where a fact applies to both matters and is cited in both complaints, the Court cites to the Pritzker complaint, as it was filed first.
5

Case: 1:20-cv-02093 Document #: 38 Filed: 04/10/20 Page 6 of 48 PageID #:592
Despite social distancing recommendations, the disease has continued to spread. The World Health Organization has declared COVID-19 to be a global pandemic. [1 at ¶ 20.] On March 9, 2020, Illinois Governor J.B. Pritzker issued a proclamation declaring a disaster in the State of Illinois. [Id.] On March 13, 2020, President Trump declared a national emergency. [Id.] In the United States alone, as of April 1, 2020, there were over 186,000 confirmed cases and over 3,600 deaths. In Illinois, there were over 6,900 confirmed cases and 141 deaths. [Id. at ¶ 21.] On the same date, 52 prisoners in IDOC facilities in two different correctional centers (Stateville and North Lawndale ATC) had confirmed cases of COVID-19, and 25 staff in seven different correctional centers (Stateville NRC, Stateville, Sheridan, North Lawndale ATC, Menard, Joliet Treatment Center, and Crossroads ATC) had confirmed cases. [Id. at ¶ 71.] St. Joseph Hospital in Joliet, Illinois was, at the time the parties filed briefs in these matters, caring for 17 prisoners from Stateville, 9 of whom are in intensive care on ventilators. [Id. at ¶ 44.] On March 30, 2020, health officials announced that a prisoner in his 50s housed at Stateville Correctional Center had died from COVID-19. [Id. at ¶ 72.]4
As things stand, the coronavirus continues to spread. According to the Coronavirus Resource Center of Johns Hopkins University, the United States has reported 461,437 cases, and 16,478 deaths, as of yesterday evening. See https://coronavirus.jhu.edu/data/new-cases (last visited April 10, 2020). According to the Illinois Department of Health, there are 16,422 confirmed cases in Illinois, including 528 deaths. See https://coronavirus.illinois.gov (last visited April 10, 2020).
4 As of today, IDOC reports 134 confirmed cases of COVID-19 among the population of incarcerated individuals in all of its facilities [see 36, at 3]. 118 of those cases involve inmates at Stateville, with the remaining 16 spread out among a handful of the 27 other facilities in the IDOC system. See https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited April 10, 2020).
6

Case: 1:20-cv-02093 Document #: 38 Filed: 04/10/20 Page 7 of 48 PageID #:593
Plaintiffs attached to both complaints a series of affidavits from medical professionals describing the seriousness of COVID-19 in a prison context and the limits of correctional facilities’ ability to prevent or mitigate the spread of the disease. See Pritzker, [2]; Jeffreys, [1-1 through 110]. Among the primary points of those declarations are the following. Plaintiffs allege that 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. Correctional facilities are congregate environments, where large groups of people live, eat, and sleep in close contact with one another, making social distancing impossible. Pritzker, [1 at ¶ 36.] People share toilets, sinks, and showers, and often have limited access to soap, hand sanitizer, hot water, and other necessary hygiene items. Surfaces are infrequently washed, if at all, and cleaning supplies are limited. [Id. at ¶ 37.]
B. Responses by the State of Illinois to the COVID-19 Crisis The State of Illinois has taken a variety of actions in response to the COVID-19 crisis, including Governor Pritzker’s March 20, 2020 “stay at home” order directing all non-essential business operations to cease and all residents to stay in their homes except for essential activities. [1 at ¶ 33.] The order is currently in place through April 30, 2020. [Id.] IDOC has enacted measures consistent with CDC guidelines to protect those who are housed and work in Illinois prisons, including a pandemic response plan (including a plan specific to Stateville), enhanced screening and testing for COVID-19, increased hygiene and sanitation, new limits (and now a prohibition) on outside visitors, and increased separation of prisoners through an administrative quarantine. Pritzker, [26, at 2.] Governor Pritzker and IDOC have taken a number of actions to address COVID-19 in Illinois’ prisons, the most relevant of which are listed below. See [id. at 4-6].
7

Case: 1:20-cv-02093 Document #: 38 Filed: 04/10/20 Page 8 of 48 PageID #:594
• Governor Pritzker suspended admissions of new prisoners from all Illinois county jails, with limited exceptions (Executive Order 2020-13; see also Executive Order 2020-18 (extending Executive Order 2020-13 through April 30, 2020).
• Governor Pritzker activated the Illinois National Guard to provide additional medical support at Stateville. Pritzker, [1 at ¶ 91], [9 at 48].
• Governor Pritzker continues to review and grant commutation petitions.
• To allow for faster releases of prisoners, Governor Pritzker suspended the required 14-day notification to State’s Attorneys for inmates released early as a result of earned sentence credit for good conduct. Executive Order 2020-11; see also Executive Order 2020-18 (extending Executive Order 2020-11 through April 30, 2020).
• On April 6, 2020, Governor Pritzker suspended the 14-day limit for medical furloughs and allowed furloughs for medical purposes at the Director’s discretion and consistent with the guidance of IDOC’s medical director. Executive Order 2020-21.
• IDOC created a population management task force for the purpose of prioritizing the review of individuals for possible release through statutorily permissible means.
• IDOC, as of April 6, 2020, had released approximately 450 prisoners through various forms of sentence credit, restoration of credit and electronic detention and had provided an additional 65 furloughs.
• Between March 2 and April 6, 2020, IDOC reduced its population by more than 1,000 prisoners.
• IDOC continues to award up to 180 days of Earned Discretionary Sentencing Credit (EDSC) for eligible offenders pursuant to 730 ILCS 5/3-6-3(a)(3).5
• On a daily basis, IDOC identifies offenders within nine months of their release date and conducts individualized reviews to determine whether they are eligible for early release. This process requires examining an offender’s file for disciplinary history, commitment to rehabilitation, and criminal history.6
5 The sentencing credit is within the sole discretion of the Director, but must be based on the results of a risk or needs assessment, circumstances of the crime, any history of conviction for a forcible felony, the offender’s behavior and disciplinary history, and the inmate’s commitment to rehabilitation, including participation in programming. 730 ILCS 5/3-6-3(a)(3). The Director is prohibited from awarding discretionary sentencing credit to any inmate unless the inmate has served a minimum of 60 days. Id.
6 Offenders with forcible felonies, violent criminal histories, significant disciplinary issues, and outstanding warrants are not approved for the sentencing credit.
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• IDOC continues to place offenders on electronic monitoring or home detention pursuant to 730 ILCS 5/5-8A-3, including 16 of 21 pregnant and postpartum offenders on home detention. IDOC is now concentrating on inmates who are 55 years or older, have served at least 25% of their sentence and are within 12 months of release. This process also requires individual assessments to determine whether placement outside of a secure facility is appropriate.
• The Prison Review Board (“PRB”) continues to conduct release revocation hearings and make individualized assessments that include the alleged violations, the safety of those in custody, and overall public health concerns.
• The Governor’s Office is working with outside groups such as the SAFER Foundation7 and TASC8 to identify and secure safe host sites and provide wraparound services to support potential releasees.
• Lt. Governor Juliana Stratton, along with the SAFER Foundation, developed the Prison Emergency Early Release Response (PEERR) team, which is creating a referral network of human services, healthcare, housing, and reentry providers that are open, whether in person or remotely, and can deliver services to people being released from IDOC custody.
• Effective March 14, 2020, all correctional facilities, impact incarceration programs, and work camps are under administrative quarantine with no visitors permitted.
• Facilities with confirmed COVID-19 cases are placed on lockdown, which means there is no movement around the facility except for medical care.
• Staff who work with individuals in isolation and quarantine, as well as in healthcare units, are wearing full personal protective equipment (PPE) and all staff are wearing some PPE.
• Staff members’ temperatures are checked daily as they enter the facility.
• IDOC has (1) educated staff on infection control, (2) promoted good health habits that interrupt transmission, (3) conducted frequent environmental cleaning of high touch surfaces and high volume locations, (4) made efforts to separate the sick from the well and employ social distancing and (5) provided ongoing infection control education to prisoners.
7 The SAFER Foundation is a nonprofit social impact organization that focuses on human capital development for people with criminal records.
8 TASC is a nonprofit organization that provides direct services and performs advocacy and consulting work for individuals and families affected by substance abuse and mental health issues.
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It also bears mentioning that as of today at noon, 644 inmates have been released from IDOC custody using all of the methods available and the total IDOC inmate population has been reduced by 1,441 since March 2, 2020. [See 36, at 2.] Included within these totals are the commutations of two of the named Plaintiffs, James Money and Carl Reed, announced by Governor Pritzker on April 8, 2020. [34, at 4.]
Plaintiffs assert that reducing the prison population is the only meaningful way to prevent the harms posed by COVID-19 in the prison setting, writing:
Public health experts with experience in correctional settings have similarly recommended the release from custody of people most vulnerable to COVID-19 to protect the communities inside and outside the prisons, and to slow the spread of the COVID-19 infection. Population reduction protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for all people held or working in a correctional facility. Because prisons are often located in small rural communities, removing the most vulnerable people from custody also reduces the burden on those region’s limited health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time and require hospitalization in these small communities. Pritzker, [1 at ¶46] (emphasis added). C. Procedural Background On April 2, 2020, plaintiffs filed a purported class action complaint under 42 U.S.C. § 1983 alleging violations of the Eighth Amendment and the due process clause of the Fourteenth Amendment, as well as violations of the ADA. Pritzker, [1]. Plaintiffs also filed a motion for class certification, Pritzker, [8], seeking to certify a class of “all people who are currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic,” [id. at 5-6], with the following subclasses: Subclass 1: People who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19 * * * and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
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Subclass 2: People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. Subclass 3: People who are 55 years of age and older with less than one year remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(d). Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e). Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c). Subclass 6: People who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Admin. Code 107.210. [Id. at 6-7]. Subclass 1 contains approximately 12,000 individuals, and subclass 2 contains approximately 4,800 individuals. Pritzker, [1 at ¶105]. Plaintiffs also filed a motion for a temporary restraining order (“TRO”) or a preliminary injunction. Pritzker, [9]. That motion asks the Court to preliminarily certify Plaintiffs’ proposed subclasses 1 and 2 and to order Defendants to transfer members of subclasses 1 and 2 to their homes to self-isolate via a temporary medical furlough. [Id. at 70-71]. On the same day that the Section 1983 complaint was filed, Plaintiffs also filed a petition for writs of habeas corpus, Jeffreys, [1], purportedly on behalf of themselves and all other similarly situated individuals. They seek to represent a class consisting of “all people who are currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic.” [Id. at ¶ 111.] Plaintiffs (or Petitioners in habeas parlance) articulate the same six subclasses they claim to represent as are laid out in the Section 1983 complaint. See [id.]. The petition seeks immediate medical furlough for individuals in subclasses 1 and 2, immediate transfer to home detention of members of subclasses 3, 4, and 5, and immediate award of 180 days
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of sentencing credit to members of subclass 6. [Id.] With the petition, Plaintiffs filed a motion for an expedited hearing. Jeffreys, [3]. II. Legal Standard
Preliminary injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (quotation marks and citation omitted); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998) (same). The Seventh Circuit uses a two-step analysis to assess whether preliminary injunctive relief is warranted. See Girl Scouts of Manitou Council, Inc. v. Girl Scouts of USA, Inc., 549 F.3d 1079, 1085–86 (7th Cir. 2008). This analysis is the same one that is used to determine if a TRO is warranted. Gray v. Orr, 4 F. Supp. 3d 984, 989 n.2 (N.D. Ill. 2013). “In the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits.” Turnell v. CentiMark Corp., 796 F.3d 656, 661–62 (7th Cir. 2015). If the movant makes the required threshold showing, then the court moves on to the second stage and considers: “(4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties,” i.e., the public interest. Id. at 662. The court must pay “particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). The Court balances the potential harms on a sliding scale against the movant’s likelihood of success. The greater the movant’s likelihood of success, “the less strong
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a showing” the movant “must make that the balance of harm is in its favor.” Foodcomm Int’l v. Barry, 328 F.3d 300, 303 (7th Cir. 2003).
Plaintiffs seek a mandatory preliminary injunction—that is, an injunction requiring an affirmative act by the defendant. Because a mandatory injunction requires the court to command the defendant to take a particular action, it is “cautiously viewed and sparingly issued.” Knox v. Shearing, 637 F. App’x 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)); see also W. A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) (“mandatory injunctions are rarely issued and interlocutory mandatory injunctions are even more rarely issued, and neither except upon the clearest equitable grounds” (quotation marks and citation omitted)); ChoiceParts, LLC v. Gen. Motors Corp., 203 F. Supp. 2d 905, 914 (N.D. Ill. 2002) (same).
The preliminary injunction, or even TRO, that Plaintiffs seek would give them much of the relief the Pritzker action requests, and likely all of the relief that subclasses 1 and 2 request. This type of request, which “give[s] the movant substantially all the relief he seeks,” “is disfavored, and courts have imposed a higher burden on a movant in such cases.” Boucher, 134 F.3d at 827 (citing Selchow & Righter Co. v. Western Printing and Lithographing Co., 112 F.2d 430, 431 (7th Cir. 1940); Phillip v. Fairfield University, 118 F.3d 131, 133 (2d Cir.1997); SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098–99 (10th Cir. 1991); Dakota Indus., Inc. v. Ever Best Ltd., 944 F.2d 438, 440 (8th Cir. 1991); and Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963)); see also W.A. Mack, Inc. v. General Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) (“A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree.”); Hanover Ins. Grp. v. Singles Roofing Co., 2012 WL 2368328, at *11 (N.D. Ill. June 21, 2012) (because the plaintiff amended the complaint to seek
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both preliminary and permanent relief, granting a TRO or preliminary injunction would not give the plaintiff “the actual advantage which would be obtained in the final decree” (quoting W.A. Mack, 260 F.2d at 890)); Harlem Algonquin LLC v. Canadian Funding Corp., 742 F. Supp. 2d 957, 962 (N.D. Ill. 2010) (“‘[i]t is one thing for a court to preserve its power to grant effectual relief by preventing parties from making unilateral and irremediable changes during the course of litigation, and quite another for a court to force the parties to make significant alterations in their practices’ before a trial on the merits. So much more so if the alteration would amount to irreversible final relief.” (citation omitted)). III. Discussion
A. Section 1983, Habeas, or Both? Since the initiation of this litigation the question of why Plaintiffs filed two separate lawsuits advancing essentially the same allegations and requesting essentially the same relief has perplexed the Court. It appears to have challenged the parties as well. In their reply brief, Plaintiffs complain that “Respondent cannot have it both ways.” [24, at 8.] Indeed, a careful review of the briefs shows that both sides are guilty of taking somewhat inconsistent positions across the two cases. This observation is not surprising, nor is it meant disparagingly, for the briefs were remarkable both in their quantity and quality—and all the more so in the time frame given to accommodate the exigent circumstances. But the question remains, is it even proper to bring a Section 1983 action and a petition for writ of habeas corpus at the same time on the same facts seeking the same remedy? As explained below, the answer (though not without doubt) seems to be yes. It is an accepted practice to plead alternative—and even inconsistent—theories of relief, but ordinarily this takes place within a single action. Nonetheless, as the declaration of Professor
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Resnik filed with Plaintiffs’ reply brief explains, “the intersection of habeas and civil rights claims brought under 42 U.S.C. § 1983” constitutes “a dense area of law and doctrine that can be daunting for litigants and jurists alike.”9 [24-3 at 5-6.] As Professor Resnik notes, the “shorthand” version of the divide between habeas and Section 1983 goes like this: “when the fact or duration of confinement is at issue and release is the remedy, habeas is the preferred route. If prisoners are challenging conditions of confinement, § 1983 is the method.” [Id. at 6.] This shorthand is a bit too simple, however, because a habeas petitioner seeks release from custody. See 28 U.S.C. § 2254(a) (habeas statute allows challenges to “custody in violation of the Constitution or laws or treaties of the United States”). This is an important point, because Plaintiffs here stress that “they do not seek relief from the underlying criminal judgments * * * [n]or do they seek speedier release from custody.” [28, at 9.] See Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (explaining that a claim seeking to reinstate “work release” with “less confinement than ordinary imprisonment” was a Section 1983 claim because it did not challenge the inmate’s custodial status). Instead, they are asking to be released from prison temporarily, “while remaining in the custody and control of IDOC.” [24, at 2.] They also emphasize that they “challenge only the conditions of their confinement.” [28, at 9.] Those concessions support the proposition that Section 1983 provides a proper rubric for analysis. Yet, Plaintiffs do seek as a remedy at least temporary release from the physical confines of not only their cells, but the entire prison environment, which they contend is unsafe because (in Professor Resnik’s words) “density puts people at medical risk.” [24-3 at 6.]
9 Professor Resnik’s work is well-known to the Court. She is unquestionably one of the nation’s leading experts in civil procedure and prison litigation, both as an academic and as a practitioner on behalf of plaintiffs. Her succinct discussion of the “legal thicket” in which the parties find themselves in these two cases has provided the equivalent of an amicus brief for which the Court is most appreciative.
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This conundrum is not simply an academic exercise, for “Congress has channeled and circumscribed some of federal judicial authority” in this area, through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Prison Litigation Reform Act (PLRA) of 1996, and the Supreme Court too has provided guidance in this area. [24-3 at 5.] The case law clearly holds that the PLRA applies in Section 1983 suits, but not to habeas petitions. See, e.g., Jones v. Bock, 549 U.S. 199, 200 (2007) (“PLRA claims are typically brought under 42 U.S.C. § 1983[.]”); Walker v. O'Brien, 216 F.3d 626, 639 (7th Cir. 2000) (“the requirements of the PLRA do not apply to properly characterized habeas corpus actions”). And it expressly reflects the traditional shorthand understanding of the differences between the two types of actions, as its provisions apply to civil actions “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 expressly exclude “habeas proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2).
Together, the statutes and case law weave a thick and tangled web. As Professor Resnik further explains, “because state prisoners who rely on 28 U.S.C. § 2254 have to exhaust state judicial remedies, they may seek to use § 1983, to which that requirement does not apply. And, because the PLRA affects § 1983 litigants, prisoners may hope to avoid its strictures by filing under habeas.” [24-3 at 6.] Those two sentences identify the precise dilemma that faced counsel for Plaintiffs as they contemplated their legal options in the present circumstances. On the one hand, many cases view Eighth Amendment claims like those asserted here “to be appropriate for § 1983 because they relate to conditions.” [Id.] On the other hand, the unique context in which litigation over COVID-19 arises may cast some doubt on that seemingly obvious proposition because the sudden threat to mortality from the spread of the virus in a congregate setting may
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affect the fact or duration of confinement. These unprecedented circumstances, Professor Resnik posits, “collapse the utility and purpose of drawing distinctions between what once could be coherently distinguished” and lead to the conclusion that “COVID-19 claims ought to be cognizable under both provisions.” [Id.]
The upshot of the foregoing analysis is that it is abundantly clear that Plaintiffs may proceed on their claims under Section 1983 and at least plausible—though far less certain—that they also have a right to seek habeas relief as well. To test the latter proposition, the Court looks to the controlling decisions of the Supreme Court and the Seventh Circuit. Those cases reveal neither a ringing endorsement nor an outright prohibition. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (U.S. 2017) (“we have left open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus”); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“we leave to another day the question off the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the constraints making custody illegal”); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (“While the Supreme Court left the door open a crack for habeas corpus claims challenging prison conditions, it has never found anything that qualified”). As Petitioners recognize [24, at 17], the Seventh Circuit’s reading of Preiser “is narrower than that of other circuits.” Still, given (1) Ziglar’s continued recognition that the question remains open and (2) the exigent circumstances present in this litigation, the Court will consider Petitioners’ habeas claim after assessing Plaintiffs’ request for the same relief under Section 1983.
B. Direct Release or a “Process”?
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There is a second threshold issue to note at the outset. In their complaint—and likewise in the habeas action—Plaintiffs requested immediate medical furloughs for subclasses 1 and 2, immediate transfers to home detention for subclasses 3, 4, and 5, and an immediate award of good time credit for subclass 6, along with the appointment of a special master. Their opening brief in support of emergency injunctive relief on behalf of subclasses 1 and 2 likewise sought a direct transfer order [see 9, at 55.] In their reply, Plaintiffs complain that Defendants have “mischaracterize[d] the relief plaintiffs are seeking, suggesting that plaintiffs seek to unleash a tsunami of dangerous ‘felons’ on unwitting communities, when in reality no such thing is true.” [28, at 1.] Perhaps that is not what Plaintiffs intended by initiating this lawsuit, but one can hardly blame Defendants for drawing that conclusion based on how Plaintiffs’ request for relief was framed at the start of this litigation.
In an ordinary case, a significant transformation in how the plaintiff frames the object of the case often is dealt with by the filing of an amended complaint that puts Defendants on notice that the game has changed. Needless to say, this is no ordinary case and allowance must be made for adjustments on the fly. As of this Monday, Plaintiffs had provided a clear indication of such a change in direction, explaining that they do not assert a right to an order directly commanding an immediate furlough—as the complaint stated—but instead “seek a process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly” [24, at 6.] Plaintiffs have further proposed a “remedial plan” pursuant to which this court-ordered and court-supervised process would unfold. [Id. at 5.] Given the disconnect between Plaintiffs’ initial filings last week and their briefs filed this week, one cannot fault Defendants for characterizing Plaintiffs’ revised position as “backpedaling” [26, at 16] or for seeking leave to file a sur-reply [32], which the Court
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has accepted. Nor can one cast aspersions on Plaintiffs for crafting an evolving proposal to deal with an evolving situation on the ground. The important thing for purposes of the litigation is that the parties have had an adequate opportunity to understand the claims as they exist today and to state their positions in advance of a ruling. The extensive briefs reflect a fair—indeed, an extensive—exposition of the issues, both as presented in the complaint and initial brief and as modified in the later briefs. In the interest of completeness, the Court will address both iterations of Plaintiffs’ claims.
C. Section 1983 Claim 1. The PLRA
Turning first to Plaintiffs’ Section 1983 claims, the Court must confront yet another threshold issue which the parties have briefed extensively—namely, the application of the PLRA to Plaintiffs’ claims. As noted above, through the PLRA, Congress “channeled and circumscribed some of federal judicial authority” in ways that “affect[] § 1983 litigants.” [24-3 at 5.] Although the PLRA is codified at 42 U.S.C. § 1997e, it encompasses the provisions of 18 U.S.C. § 3626, which is titled “appropriate remedies with respect to prison conditions.” Section 3626 begins by stating 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). It also directs courts to “give substantial weight to any adverse impact on public safety or the operation of the criminal justice system caused by the relief.” Id. The term “civil action with respect to prison conditions” is defined broadly to include “any civil proceeding arising under Federal law with respect to the conditions of confinement and the effects of actions by government officials on the lives of persons confined in prison,” but explicitly “does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.”
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18 U.S.C. § 3626(g)(2). The statute specifically addresses preliminary injunctive relief, mandating that any such relief in a case involving prison conditions “must be 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).
The application of the provisions discussed in the preceding paragraph is not disputed between the parties. The parties part ways, however, in regard to whether the relief requested falls within the meaning of the PLRA’s special procedures for consideration of a “prisoner release order.” 18 U.S.C. § 3626(a)(3). The statute defines that 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.” 18 U.S.C. § 3626(g)(4). No court may enter a prisoner release order unless it “has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied” and “the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(1)-(2). If those strictures have been satisfied, only a three-judge court can actually consider and issue a prisoner release order—and even then only if it 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.” 18 U.S.C. § 3626(a)(3)(E)(i)-(ii).
2. Prisoner Release Orders Under the PLRA In looking for guidance on how to address the parties’ dispute concerning the reach of the PLRA’s limitations on “prisoner release orders,” the Court has endeavored to locate prior decisions in which a federal court has been asked to get involved in the potential transfer of thousands of state inmates out of state prisons through any available vehicle on the basis of their conditions of
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confinement. The Court has found—and the parties have cited—just two, which went together from the federal district courts in California all the way to the Supreme Court and then back again, and still remain open today, though in a largely dormant phase. See Coleman v. Newsom, Case No. 2:90-cv-0520 KJM DB P (E.D. Cal.) & Plata v. Newsom, Case No. 4:01-cv-01351-JST (N.D. Cal.), --- F. Supp. 3d. ---, 2020 WL 1675775, at *3 (Three-Judge Court April 4, 2020) (explaining that since 2015, the three-judge court has “largely stepped back as the individual Coleman and Plata courts have continued to work” on the compliance phase of the cases). Because of the uniqueness of the relief requested here, a discussion of the most analogous cases appears in order.
In Brown v. Plata, 563 U.S. 493 (2011), the Supreme Court upheld an order of a threejudge district court requiring California to reduce its prison population to 137.5 percent of design capacity within two years. In that case, two lawsuits were brought by California prisoners with serious mental disorders challenging prison crowding and inadequate mental health care as Eighth Amendment violations. In one of the cases, a special master was appointed to oversee development and implementation of a remedial plan. In the other case, the state stipulated to a remedial injunction, but failed to comply with the injunction, after which the district court appointed a receiver to oversee remedial efforts. The plaintiffs in both cases requested that a threejudge panel of the district court be convened pursuant to the PLRA, 18 U.S.C. § 3626(a)(3). Both district courts granted the motions and the cases were consolidated before a three-judge panel. The three-judge court, after determining that plaintiffs suffered from constitutional violations that were caused primarily by overcrowding, entered a remedial order requiring the State of California to reduce its prison population to 137.5 percent of design capacity within two years.
The Governor appealed and the Supreme Court affirmed. The Court determined that the PLRA's requirement of allowing the state a reasonable amount of time to comply with previous
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court orders was satisfied where, when the three-judge district court was convened, 12 years had passed since the appointment of a special master to oversee development and implementation of a remedial plan and the basic plan to solve the crisis through construction, hiring, and procedural reforms had remained unchanged for years. Plata, 563 U.S. at 514-15. The Court also held that the evidence supported the three-judge court’s determination that crowding was the primary cause of the Eighth Amendment violations and that no other relief would remedy the violations. The evidence showed that there were severe, months-long delays and backlogs for prisoners needing urgent mental health and physical care, as well as unsafe and unsanitary living conditions caused by crowding. Id. at 519-20. Further, the Court determined that the three-judge court properly gave substantial weight to public safety, finding various available methods of reducing overcrowding that would have little or no impact on public safety, such as expansion of good-time credits and diversion of low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring. The Court noted that the three-judge court’s order “took account of public safety concerns by giving the State substantial flexibility to select among these and other means of reducing overcrowding.” Id. at 537. Finally, the Court concluded that the cap of 137.5 percent capacity was supported by evidence in the record, including expert witnesses who recommended a 130 percent population limit and the federal BOP’s own long-term goal of 130 percent. Id. at 539-40.
As the foregoing illustrates, the only instance of which the Court is aware that a federal court has been involved in ordering the release of thousands of state prisoners took place in radically different circumstances—after the passage of 12 years, the development of a full record, the input of both a special master and a receiver, and a trial lasting almost three weeks. Clearly there is no time for even a fraction of that attention, so the Coleman/Plata experience may have
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little to offer in the way of guidance, except in its application of the order of operations under the PLRA—the preliminary requirements for issuing a less intrusive order, the reasonable opportunity to comply, and what type of claim requires the appointment of a three-judge court. But there is a recent postscript that may offer greater insight on how the PLRA should apply in this case.
Less than a week ago, the same three-judge panel in California whose work was reviewed by the Supreme Court in Plata issued an order denying an emergency motion seeking release of “an unspecified, but significant, number of prisoners so that the prison population can be reduced to a level sufficient to allow physical distancing to prevent the spread of COVID-19.” Coleman & Plata, 2020 WL 1675775, at *1. As in this case, the plaintiffs there sought an order directing the Governor of California and other state officials “to release to parole or post-release community supervision” certain categories of inmates who were low risk, non-violent, and/or close to their release dates and “to release or relocate inmates who, because of their age or other medical conditions, are at a high risk of developing a severe form of COVID-19.” Id. at *3. Although the plaintiffs did not specify a number of inmates who fall within those categories, they argued that the number should be sufficient “to allow all remaining inmates to practice physical distancing, especially those who reside in crowded dorm housing.” Id. They requested that specific relief based on the CDC’s guidance that “[t]hus far, 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,” which is “uniquely difficult in a congregate environment like a prison.” Id. at *5 (citing CDC guidance).
The panel determined that it lacked authority to consider the request because it was “not actually a modification of the 2009 order but rather new relief based on the new threat of harm posed by COVID-19.” Coleman & Plata, 2020 WL 1675775, at *4. But perhaps significantly for
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present purposes, the panel gave every indication that all phases of the PLRA’s remedial scheme— including the appointment of a new three-judge court—could apply to the type of relief sought by the Plaintiffs in California, which closely mirrors the relief sought for subclasses 1 and 2 in the complaint here—especially in regard to the request to “release or relocate” older inmates and those who are especially vulnerable due to medical conditions. To begin, the panel noted that as of the time of its ruling the Plaintiffs “likely cannot satisfy the [PLRA’s] prior order requirement because there have not yet been any orders requiring Defendants to take measures short of release to address the threat of the virus; nor have Defendants had a reasonable time in which to comply.” Id. at *4.10 The panel further observed that the plaintiffs retained the option to “go before a single judge to press their claim that Defendants’ response to the COVID-19 epidemic is constitutionally inadequate.” Id. at *7. It added that “[i]f a single-judge court finds a constitutional violation, it may order Defendants to take steps short of release necessary to remedy that violation.” Id. However, “if that less intrusive process proves inadequate,” the Court concluded, “Plaintiffs may request, or the district court may order sua sponte, the convening of a three-judge court to determine whether a release order is appropriate.” Id. In this Court’s view, the clear impression to be drawn from the California panel’s opinion is that, in its view, claims seeking an order to “release or relocate” inmates on account of the COVID-19 pandemic may implicate every aspect of the PLRA’s remedial scheme, including the appointment of a three-judge court.
3. Are Plaintiffs Requesting a “Prisoner Release Order”? With that discussion as prelude, the next question is whether Plaintiffs seek a “prisoner release order” within the meaning of Section 3626(a)(3) and (g)(4). If one focuses on Plaintiffs’ complaint and initial brief, this is obvious. Plaintiffs devote pages to describing the congregate
10 The panel recognized, as does this Court, “that what is reasonable in ordinary times may be quite different from what is reasonable in these extraordinary times.” Id. n.9.
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conditions in IDOC facilities in support of the proposition that crowded conditions inherent in living arrangements in a prison setting are unsafe during a pandemic. They then offer the opinions of numerous affiants who universally advance one message: the only solution is the immediate release of inmates in large numbers. A fair summary of the bulk of the complaint and brief in support of immediate injunctive relief is that the crowded conditions of IDOC facilities require the Court to issue an order immediately reducing the prison population in Illinois by ordering the members of proposed subclasses 1 and 2 to medical furloughs. In the Court’s view, if that were the relief Plaintiffs seek in this litigation, it unquestionably could be awarded only by a three-judge court under the PLRA.
As noted above, in their more recent filings, Plaintiffs submit that are not seeking a “mass release order.” Instead, Plaintiffs seek a “process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly.” [24, at 5.] All of Defendants’ briefs in this matter contend that such a process already is in place. But Plaintiffs find Defendants’ efforts wanting, and thus they request the Court’s involvement in the creation and oversight of a remedial plan that would result in “an expedited, individualized review and relocation” of inmates who qualify. [Id. at 10.] The order that the Court would issue to set that process in motion, Plaintiffs say, is not a “prisoner release order” within the meaning of the PLRA. Such orders, they argue, involve mass prisoner releases or population caps and issue only to remedy violations primarily caused by overcrowding. [See 24, at 7.] And that is not the kind of order they want.
The Court must look to the language of the PLRA, which speaks in detail and uses broad and categorical language in defining its scope. It does not speak of “mass” releases, “population caps,” or even “overcrowding”—though it does refer to “crowding,” which must be the “primary
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cause of the violation of a Federal right” to serve as the predicate for a release order under the statute. 18 U.S.C. § 3626(a)(3)(E). What it does say is that any order “that has the purpose or effect of reducing or limiting a prison population, or that directs the release from or nonadmission of prisoners to a prison” lies exclusively within the province of three-judge courts. 18 U.S.C. § 3626(g)(4). The reference to “crowding” may have the effect of removing single-plaintiff cases from within the ambit of Section 3626(a)(3), because an order involving only one inmate might not be viewed as reducing a prison population in any meaningful way.11
Plaintiffs stress that the transfers they hope to accomplish would not release any class members from custody; they would simply effectuate changes in the inmates’ physical locations, and the changes would be of a limited duration. Plaintiffs rely on Illinois statutes to show that they would remain in custody within the meaning of state law. But 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. The question is not whether Plaintiffs would remain in custody under state law. The question is whether the requested relief would have the “purpose” or the “effect” of “reducing or limiting the prison population,” or whether it would “direct[] the release from * * * a prison.” 18 U.S.C. § 3626(g)(4). There is no doubt that Plaintiffs’ request – even if couched in terms of a process – would have the purpose and the effect of reducing the population in Illinois prisons.
11 A single judge in California did order an “exclusionary order for medically vulnerable prisoners” during a “Valley Fever” epidemic several years ago. Plata v. Brown, 2013 WL 3200587, at *9 (N.D. Cal. June 24, 2013). In so doing, the judge rejected the notion that “a court could only order that prisoners be transferred from one prison to another if overcrowding were the primary cause of the violation.” Id. That seems correct and consistent with the orders entered not infrequently in cases involving inmate medical problems that may require hospitalization. [See 24, at 10]. But it does not help Plaintiffs, because there was no crowding issue at all raised in that instance.
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Plaintiffs also suggest that they do not seek a remedy for crowding (as the statute frames the issue) or overcrowding (as Plaintiffs frame it). But that contradicts the allegations of their complaint and their entire theory of the case. One of the central allegations in the complaint is that inmates are particularly vulnerable because they live in “congregate settings” in “close quarters” with each other. See Cmplt. at ¶ 1 (alleging that “[n]early 37,000 people are incarcerated in Illinois, living in close quarters”); id. (“social distancing guidelines can never be fully or effectively implemented in prison”); id. at ¶ 32 (alleging that “[p]eople in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19.”); id. at ¶ 36 (“Correctional facilities are inherently congregate environments, where large groups of people live, eat, and sleep in close contact with one another.”); id. at ¶¶ 37-38 (alleging that inmates are “all congregated together” and cannot “adequately distance themselves”); id. at ¶ 43 (alleging the “heightened risk posed by correctional settings” because of the close proximity); id. at ¶ 45 (alleging that there is a need to “eliminat[e] close contact in congregate environments”).
In addition, as the ultimate aim of these lawsuits Plaintiffs unmistakably seek to reduce the prison population. Reducing the prison population is not just a side effect of the case – it is the whole point. They want to remove inmates from prison because they are vulnerable in those facilities. See Cmplt. at ¶ 1 (alleging that the Governor and the IDOC need to “drastically reduce Illinois’s prison population”); id. at ¶ 3 (“[T]he state must take urgent steps to reduce, furlough, or transfer to home detention all that qualify.”); id. at ¶ 4 (alleging that the IDOC is “refusing to reduce the number of people living in IDOC”); id. at ¶ 5 (“Class members . . . must be released now.”); id. at ¶ 103 (discussing “Plaintiffs’ request for release from physical custody”). The Complaint cites declarations from five public health and correctional experts, all of whom
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“recommend[] the release from custody” of certain individuals. Id. at ¶ 46; see also id. at ¶ 47 (Dr. Robert Greifinger discussing the “release of individuals”); id. at ¶ 49 (Dr. Craig Haney discussing that “adult prisons must reduce their populations”); id. at ¶ 50 (Prof. Chris Breyer discussing the need to “reduce the number of persons in detention as quickly as possible”); id. at ¶ 51 (Dr. Jaimie Meyer discussing “[r]educing the size of the population in jails”); id. at ¶ 52 (Dan Pacholke discussing the need to “reduce the prison population”).
Moreover, the impetus for Plaintiffs’ claims is the living conditions inherent in a congregate setting during the COVID-19 epidemic. They do not distinguish in any respect among the 28 facilities and the myriad living arrangements within those facilities. All prison facilities, by definition, have living conditions that prevent inmates from practicing the social distancing required by current guidance from the CDC and our state government. As Plaintiffs write in their reply brief, there is “no way to make conditions safe within the congregate prison setting.” [24, at 11.] Defendants do not contest these allegations; in fact, they have repeated them publicly. But in asking that inmates be physically transferred from inside the prison to outside of it on the basis of these conditions, Plaintiffs plainly are implicating “crowding” as the primary cause of their concern. If prisons could be reconfigured to permit social distancing and observance of the CDC’s hygiene recommendations, Plaintiffs would have no claim.
Finally, shifting the focus from an order directly releasing subclasses 1 and 2 (as the complaint requested) to an order imposing a court-ordered and court-managed “process” for determining who should be released (as the briefs request) does not place this case outside of Section 3626(a)(3). Although there is a dispute over the exact number of inmates within proposed subclasses 1 and 2—because some inmates are members of both subclasses—the minimum number of inmates who would be subject to the procedures in any remedial plan is approximately
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12,000. See Cmplt. at ¶ 105 (“Plaintiffs estimate that Subclass 1 contains approximately 12,000” inmates).12 Plaintiffs insist that Defendants must act faster to move as many of those individuals to medical furlough as possible. The “purpose” of any order compelling the State to engage in that process would be to reduce the prison population, and the “effect” of its successful implementation would be the same, albeit indirectly. As Plaintiffs’ acknowledge, Defendants already have in place several mechanisms to reduce the IDOC census and hundreds of inmates have already been released. An order granting the requested relief would simply accelerate that process, placing the request squarely within Section 3626(a)(3)—which forbids this Court from granting it.
The upshot is that the PLRA prevents this Court from granting the temporary restraining order on the Section 1983 claim, for a number of reasons. First, the statute provides that “no court shall enter a prisoner release order unless * * * a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right,” and the defendants have “had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A)(i), (ii). Here, there is no such “previous court order[].” Id. Second, the statute provides that “only” a “three-judge court” can enter a prisoner release order. 18 U.S.C. § 3626(a)(3)(B). So, this Court, standing alone, lacks the authority to issue any order that has the “purpose or effect of reducing or limiting the prison population.” Id.; 18 U.S.C. § 3626(g)(4). Third, the statute provides that “[p]reliminary injunctive relief must be 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). Plaintiffs’ proposed
12 That figure is the floor, assuming that subclass 1 contains all of the inmates in subclasses 2-6. In reality, the number of eligible inmates covered by Plaintiffs’ plan is probably much higher. Subclass 1 contains 12,000 inmates. See Cmplt. at ¶ 105. Subclass 2 contains 4,807 inmates. Id. Subclass 3 contains 700 inmates. Id. Subclass 4 contains over 9,000 inmates. Id. Subclass 5 contains 2,401 inmates. Id. Subclass 6 contains 5,308 inmates. Id.
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plan does the opposite. Instead of proposing interim steps, Plaintiffs seek the most sweeping form of relief – a process to potentially release 12,000 inmates – right off the bat.
4. Provisional Class Certification Even if the Court were incorrect in its conclusion that all of the relief that Plaintiffs request falls within the scope of Section 3626(a)(3), and thus only could be granted by a three-judge court (after Plaintiffs obtain a less intrusive order and Defendants have a reasonable amount of time to comply), Plaintiffs would need to clear other serious obstacles before the Court could even reach the merits of their claims. One is Plaintiffs’ request that the Court consider granting conditional relief on a classwide basis. Federal Rule of Civil Procedure 23 governs class actions. The basic requirements are wellknown and simply stated: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. There are other requirements for money damages classes, but those do not apply here because the relief sought is injunctive only. See FRCP 23(a)(2). The first and fourth factors are essentially uncontested; the putative class numbers more than 10,000 individuals, the named Plaintiffs are appropriate, and class counsel are extremely well qualified for this type of litigation. Typicality is satisfied if the named plaintiff’s claims “arise from the same event or practice or course of conduct that gives rise to the claims of the other class members and [are] based on the same legal theory.” Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018). Plaintiffs have made enough of a showing to clear that hurdle, too, at least for conditional certification on a motion for preliminary relief. That leaves the second element, commonality. Commonality requires at least one question common to all of 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). For present purposes, the quoted language is key. There are many questions
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common to the putative class members that bear on the subject of this litigation. Consideration of those questions undoubtedly drove the decisions of counsel in sorting Plaintiffs into six subclasses with particular characteristics held in common. But none of those questions is likely to drive the resolution of the case. The central dispute is not whether aged, infirm, and vulnerable inmates as a group should be given consideration for transfer or release. Defendants agree and by Plaintiffs’ own admission “are taking many actions on the list” of mechanisms available under state law for moving inmates out of IDOC facilities. [24, at 1.] Plaintiffs simply want the Court to “prod the defendants to act more quickly.” [Id. at 2.] And they acknowledge that any plan to do just that would require “individualized safety assessments” and “approve[d] home sites.” [28 at 5.]
The Court agrees. Indeed, the public interest—which must be taken into account when considering a TRO or preliminary injunction—mandates individualized consideration of any inmate’s suitability for release and on what conditions, for the safety of the inmate, the inmate’s family, and the public at large. From the inmate’s perspective, his or her own health status at the relevant time is paramount. Any inmate who is exhibiting symptoms of infection may be more suitable for quarantine or even transfer to a hospital. From the family perspective, an inmate who has been exposed to someone (inmate or IDOC personnel) who has tested positive may not be suitable for furlough, particularly if the inmate’s proposed destination is a residence already occupied by someone equally or more vulnerable. And from the public’s perspective, it is important to bear in mind that some portion of the incarcerated population has been convicted of the most serious crimes—murder, rape, domestic battery, and so on. Seven of the ten named Plaintiffs in fact are serving time for murder. As Plaintiffs rightly acknowledge, some release orders would be appropriate only with conditions, such as home detention or lesser forms of supervision. And those conditions can only be imposed with resources (e.g., electronic monitors)
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and personnel, who are both limited in supply and also subject to the same social distancing imperatives as everyone else.
The imperative of individualized determinations, recognized by both sides in this case, makes this case inappropriate for class treatment. Each putative class member comes with a unique situation—different crimes, sentences, outdates, disciplinary histories, age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism, and danger to the community. As Plaintiffs point out, commonality “does not require perfect uniformity.” [28, at 46 (citing cases).] But it does require more uniformity that these Plaintiffs would have on the only matter “apt to drive the resolution of the litigation” (Wal-Mart, 564 U.S. at 350)—namely, which class members should actually be given a furlough? And any attempt to use the class device even to formulate standards is destined to fail, because those standards largely are governed by the various state statutes authorizing different forms of release, which then are subject to wide discretion in their application.
Plaintiffs’ own plan underscores that they are seeking a highly individualized, inmate-byinmate form of relief. See Plaintiffs’ Draft Proposed Remedial Plan Related to their Request for a Temporary Restraining Order/Preliminary Injunction [24-1]. Plaintiffs want the IDOC to identify, “[w]ithin three days of the date of the order,” all inmates who fall within the broad parameters of a list of medical conditions. Id. So, the IDOC would need to identify which of the 37,000 inmates have a medical condition that qualifies. Then, “[w]ithin 7 days of the date of this order,” the IDOC “will use its discretion to transfer inmates” to medical furlough or home detention, unless the IDOC determines that it would poses a substantial danger to an identified person that outweighs the threat to the inmate’s health from incarceration. Id. As Plaintiffs acknowledge, an “[a]ssessment of the
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safety risk must be based on an individualized analysis, and not categorical exclusions (except those excluded offenses for furlough or transfer under the law).” By its very nature, the process would entail a highly individualized inquiry that is ill-suited to class treatment. Simply put, there is no way to decide which inmates should stay, and which inmates should go, without diving into an inmate-specific inquiry.
Although the press of time does not permit deep reflection on the point, the Court can imagine that the analysis might be different if this were a more typical case. Class treatment might be appropriate where the Court has months or years to make decisions on individual aspects of a case—for example, an action arising out a common occurrence where liability would be established on a classwide basis, followed by individual damages assessments—or if the number of permutations were confined in some reasonable manner. But the permutations here are endless, as rarely, if ever, will any two plaintiffs be alike on the factors that matter at the point of decision. These differences are so vast and fundamental that class treatment, especially in the compressed time frame that would allow for effective relief at the height of the pandemic in Illinois, is completely unworkable.
5. Federalism and Separation of Powers Concerns Plaintiffs’ motion also raises serious concerns under core principles of federalism and the separation of powers, especially given their request for sweeping relief in the form of a mandatory injunction. See Missouri v. Jenkins, 495 U.S. 33, 51 (1990) (“[O]ne of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions.”). The Supreme Court repeatedly has cautioned that federal courts must tread lightly when it comes to questions of managing prisons, particularly state prisons. The Court has gone so far as to opine that “[i]t is difficult to imagine an activity in which
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a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of prisons.” Preiser, 411 U.S. at 492-92; see also Turner v. Safley, 482 U.S. 78, 85 (1987) (“[W]here a state penal system is involved, federal courts have * * * additional reason to accord deference to the appropriate prison authorities.”); Meachum v. Fano, 427 U.S. 215, 229 (1976) (“Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.”).
There are serious separation of powers concerns, too, because running and overseeing prisons is traditionally the province of the executive and legislative branches. See Turner, 482 U.S. at 84-85 (“Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.”). The judiciary is ill-equipped to manage decisions about how best to manage any inmate population—let alone a statewide population of tens of thousands of people scattered across more than a dozen facilities. And the concern about institutional competence is especially great where, as here, there is an ongoing, fast-moving public health emergency.
It is no accident that the federal judiciary only rarely intrudes into the management of state prisons, and only once in history has actually ordered the release of prisoners on a scale anywhere near what Plaintiffs hope to accomplish through this litigation. And in that instance, inmates were released only after a painstakingly long process, informed by voluminous expert testimony and a weeks-long trial. This is why the Supreme Court too has noted how “ill equipped” the courts are to deal with the “complex and intractable” problems of prisons and remarked that “[j]udicial
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recognition of that fact reflects no more than a healthy sense of realism.” Rhodes v. Chapman, 101 S. Ct. 2392, 2401 n.16 (1981).
Plaintiffs insist that they “do not seek to place IDOC under the supervision of this Court.” [24, at 12.] But they do intend to place the Court squarely in the middle of refereeing whose plan can best ensure release of inmates and on what conditions. As Plaintiffs note, if their proposal is not agreeable to Defendants, they “are free to proffer other plans to the Court.” [Id. at 13.] In saying that the Court should hesitate before venturing into such an arrangement, the Court does not mean to say it never is appropriate. Plata holds otherwise. But here, and now, even if Plaintiffs could establish a right to the relief they want—and they cannot for reasons stated above (Section 3626(a)(3)) and below (the absence of a likelihood of success on the merits)—any effort for the Court to insert itself into this process likely would be ineffectual in dealing with the actual situation at hand. The statistical experts on whose work both the federal and state governments have relied in shaping their expectations estimate that the peak for the current wave of COVID-19 will hit in Illinois within the next few days, and that the number of deaths and the need for invasive medical equipment will decline rapidly in the weeks that follow. See Institute for Health Metrics and Evaluation, University of Washington Medicine, “COVID-19 projections assuming full social distancing through May 2020,” available at https://covid19.healthdata.org/united-states-ofamerica/illinois (last visited Apr. 10, 2020). To be sure, for the reasons acknowledged above, the prison environment presents special challenges and may not bend to the same curve as the rest of the state collectively. Yet today’s information shows that only one IDOC facility has more that ten confirmed cases, and IDOC has in place measures to deal with suspected and confirmed cases within its facilities and to limit the chance of the virus being brought into the facility by outsiders.
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By the time the Court could develop even a partially-informed plan for dealing with an infectious disease in the prison system, the current wave likely will have passed.13
Finally, there are potential separation of powers problems, too, with forcing the executive branch to exercise its discretion in a particular way. Here, Plaintiffs want this Court to direct—or, at a minimum, strongly influence—the Governor and an administrative agency to make discretionary decisions under state law to grant a medical furlough or a home detention. See 730 ILCS 5/3-11-1(a)(2) (providing that the IDOC “may” grant a 14-day medical furlough); 730 ILCS 5/5-8A-3(d) (providing that certain inmates “may” be placed in home detention under certain conditions); 730 ILCS 5/5-8A-3(e) (same). Just as the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case,” United States v. Nixon, 418 U.S. 683, 693 (1974), so too the executive branch has the discretion to decide whether to end incarceration early.
6. The Merits In the interest of completeness—and in the event that any or all of the foregoing analysis is incorrect—the Court now turns to the applicable factors for considering a request for preliminary injunctive relief on the merits. As noted at the outset, “[i]n the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits.” Turnell, 796 F.3d at 661-62. If the movant makes the required threshold showing, then the court moves on to the second stage and considers: “(4) the irreparable harm the moving party will endure if the
13 The Court is aware that experts have warned of a possible second (or third) wave, perhaps in the late fall or early winter when the normal flu season arrives. Nothing in today’s ruling forecloses a later request for relief based on future circumstances.
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preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties,” i.e., the public interest. Id. at 662. The court must pay “particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.
As a concession to the press of time, the Court will move directly to the third part of the first phase analysis, for it is sufficient to end the inquiry. As explained below, Plaintiffs cannot show a reasonable likelihood of success on the merits on either of their substantive claims.
a. Likelihood of success on the merits To state a claim under § 1983, a plaintiff must show: (1) his constitutional rights were violated (2) by a person acting under color of state law. Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007). Plaintiffs advance two claims under the Eighth Amendment and the ADA. Defendants plainly are state actors, so the only question on the table is whether Plaintiffs’ constitutional rights have been violated—or, more precisely, whether Plaintiffs have a reasonable chance of showing that they have been.
i. Eighth Amendment claim In cases involving the conditions of confinement in a prison, two elements are required to establish a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment: “first, an objective showing that the conditions are sufficiently serious—i.e., that they deny the inmate the minimal civilized measure of life’s necessities creating an excessive risk to the inmate’s health and safety—and second, a subjective showing of a defendant’s culpable state of mind.” Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (internal citations and quotation marks omitted). The culpable mental state required to state a claim under the Eighth Amendment is “one of deliberate
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indifference to inmate health and safety.” Daugherty v. Page, 906 F.3d 606, 611 (7th Cir. 2018) (quoting Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016)) (internal quotation marks omitted).
Again, the analysis can be truncated, because nobody contests the serious risk that COVID19 poses to all inmates and prison staff, and even more so to the most vulnerable inmates like those who comprise the two subclasses encompassed within the instant motion. Likewise, nobody contests Defendants’ knowledge of this grave situation. The lead Defendant, Governor Pritzker, has repeatedly made reference to the unique risks faced by incarcerated individuals in his daily press briefings. So, deliberate indifference is the whole ball game on the merits of Plaintiffs’ Eighth Amendment claim.
Deliberate indifference, as the Seventh Circuit has explained, imposes a “high hurdle,” for it requires a showing “approaching total unconcern for the prisoner’s welfare.” Rosario v. Brown, 670 F.3d 816, 821 (7th Cir. 2012) (internal quotations and citation omitted). Neither “negligence [n]or even gross negligence is enough; the conduct must be reckless in the criminal sense.” Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008). And, given the constantly shifting parameters and guidance regarding how to combat a previously little known virus, it is worth pointing out that “the mere failure * * * to choose the best course of action does not amount to a constitutional violation.” Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).
Under this standard, Plaintiffs have no chance of success. Defendants have come forward with a lengthy list of the actions they have taken to protect IDOC inmates. Some are designed to protect inmates in the prison environment; others to consider release under several different programs. On an almost daily basis, the Governor and/or the Department have expanded or modified their procedures, including earlier this week through an executive order making it easier
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for the Director to approve furloughs. Plaintiffs acknowledge that Defendants “are taking many actions on the list.” [24, at 1.] And the numbers prove it—as 644 inmates have been released since March 2. [36, at 2.]
Plaintiffs’ complaint is that Defendants “are simply not moving quickly or broadly enough,” and that “the Court’s intervention is necessary to prod the defendants to act more quickly.” [24, at 1-2.] Setting aside the concerns raised above whether judicial intervention would be effective—probably not in the short term; perhaps in the long term—objections about the speed or scope of action and suggestions for altering it through a “prod” do not support either half of the phrase “deliberate indifference.” Clearly Defendants are trying, very hard, to protect inmates against the virus and to treat those who have contracted it. The record simply does not support any suggestion that Defendants have turned the kind of blind eye and deaf ear to a known problem that would indicate “total unconcern” for the inmates’ welfare. Rosario, 670 F.3d at 821. Nor would the record support any claim that Defendants lack a plan for implementing exactly what Plaintiffs have requested—individualized decisions on release through a panoply of vehicles guided by administrative discretion. It may not be the plan that Plaintiffs think best; it may not even be the plan that the Court would choose, if it were sufficiently informed to offer an opinion on the subject. But the Eighth Amendment does not afford litigants and courts an avenue for de novo review of the decisions of prison officials, and the actions of Defendants here in the face of the COVID-19 outbreak easily pass constitutional muster.
ii. ADA claim Title II of the ADA prohibits public entities from discriminating against qualified individuals with disabilities by depriving them of opportunity to participate in the services, programs, or activities of the public entity because of their disabilities. 42 U.S.C. § 12132. Title
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II of the ADA applies to prisons, as “[s]tate prisons fall squarely within the statutory definition of “public entity” under the ADA. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To make out a claim under Title II of the ADA, Plaintiffs must show that: (1) each Plaintiff is a “qualified individual with a disability;” (2) Defendants denied Plaintiffs “the benefits of the services, programs, or activities of a public entity;” and (3) Plaintiffs were discriminated against “by reason of” their disabilities. Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (quoting 42 U.S.C. § 12132). Plaintiffs may establish discrimination in one of three ways: “(1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant’s rule disproportionally impacts disabled people.” Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999).
Here, there is no allegation of intentional discrimination on the basis of disability—i.e., that Defendants have singled out disabled inmates and excluded them from consideration for release. And nothing on the face of the many vehicles identified in Defendants’ brief for effectuating release even mentions disabilities, much less bars disabled inmates from accessing them. As Plaintiffs recognize, all decisions on release—under the furlough program that is the focus for subclasses 1 and 2 and otherwise—must be made on an individualized basis and subject to the exercise of discretion. Nothing in the record supports the notion that any member of the proposed class, including one who is a qualified individual with a disability, has been denied the reasonable modification of consideration for release—which Plaintiffs now concede is the most they can ask for. Nor is there any basis for concluding that the discretionary decisions on whom to release (and not to release) have a disproportionate impact on disabled inmates, especially when one considers the large number of non-disabled inmates who also may have strong claims to priority for release on account of their susceptibility to COVID-19, such as elderly inmates. In
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short, Plaintiffs do not have a reasonable likelihood of success under any of the three ways of establishing an ADA discrimination claim.14
b. Second stage factors Having concluded that Plaintiffs do not have a reasonable likelihood of success on either of their Section 1983 claims, the Court need not move on to the “second stage” of the TRO/preliminary injunction analysis. Nevertheless—and very briefly—the answer to the question “to release or not to release” is by no means obvious. Setting aside Stateville, the current rate of incidence of COVID-19 infection inside the IDOC is mercifully low, and the counties in which the facilities housing the named Plaintiffs (apart from Will) are far less densely populated than the urban areas in which the virus is more prevalent. To the extent that members of the subclasses would be released to homes in those areas, they may have a similar risk of contracting the virus whether they remain in custody or are released in the near future. The final factor in the “second stage,” the public interest, also cuts both ways. As Plaintiffs stress, the public interest surely is served by avoiding widespread outbreaks of COVID-19 infection, and prison environments present a heightened risk of such outbreaks occurring, as evidenced at Stateville and the Cook County Jail. These are good reasons for Defendants to work hard to reduce the prison population, and especially to remove the highest-risk inmates, either though outright release or transfer to some other location while still in custody, provided that doing
14 Plaintiffs also have no plausible allegations that ADA-qualified inmates have been discriminated against because of their disabilities. As noted above, review of the numerous vehicles that Defendants have identified and/or that are authorized by statute reveals none that singles out disabled persons for discrimination. To the contrary, it is likely that the programs in place will have a disparate impact in their favor, as disabled individuals are more likely to be able to demonstrate a need for the services that justify a medical furlough. The fact that disabled persons may be more susceptible to contract or suffer serious consequences from COVID-19 is not disputed, but that disparate impact is not a consequence of “Defendant’s rule” or any action by Defendants. As explained above, the “rule” is individual, discretionary decisions on eligibility for release.
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so is consistent with the public interest. But every release order carries with it some risk to the rest of the community. Has the inmate been exposed to the virus while in custody? Does another vulnerable person—perhaps an 80-year old mother with emphysema—live at the residence where the inmate will be released? Does the inmate have a history of mental instability or domestic violence? Are there adequate safeguards—monitoring or supervision—for releasees who are both vulnerable and dangerous? How does the increased activity associated with release orders in the quantities sought by Plaintiffs comport with the mandate for social distancing? Finally, as alluded to above, the public interest also commands respect for federalism and comity, which means that courts must approach the entire enterprise of federal judicial intrusion into the core activities of the state cautiously and with humility. This is not to say that intrusion would not be justified if the state government sat silently during a pandemic; if that were the case, the Court would be prepared to request sua sponte the formation of a three-judge court to take up Plaintiffs’ complaint. But the absence of a plausible case on the merits and doubts about the balancing of the harms and public interest reinforce the decision to deny injunctive relief at this time.
Other compelling public interest considerations come into play too. Plaintiffs seek a process that could result in the release of at least 12,000 inmates. That is almost one-third of the prison population in Illinois. See Cmplt. at ¶¶ 1, 105. All of them are incarcerated because a jury convicted them of committing crimes, including some of the most serious crimes against our community. Many of them are violent offenders. Compelling a process to potentially release thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare. The risk of recidivism comes into play, as do concerns about victims’ rights. The question is not simply what is best for the inmates – the public has vital interests at stake, too. See Brief of Amicus
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Curiae City of Chicago in Mays v. Dart, Case No. 20-cv-2134, Docket Entry [45-1], at 2 (submitted on April 9, 2020).
D. Petition for Writs of Habeas Corpus As referenced above, Plaintiffs (or, in this context, Petitioners) also have brought a habeas petition under 28 U.S.C. § 2254 arguing that Respondent is “violating Petitioners’ Eighth Amendment rights by continuing to incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that will prove deadly because of Petitioners’ vulnerable condition and/or age.” Jeffreys, [1, at ¶ 124]. Prior to filing a habeas petition in federal court, a petitioner seeking relief from state custody must exhaust available state remedies, which means that the petitioner has “fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge.” Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005); see also 28 U.S.C. § 2254(b), (c); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This exhaustion requirement “serves an interest in federalstate comity by giving state courts the first opportunity to address and correct potential violations of a prisoner’s federal rights.” Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir .2004) (citing Picard v. Connor, 404 U.S. 270, 275 (1972)). It requires the petitioner to assert each of his or her federal claims through one complete round of state-court review, either on direct appeal of his or her conviction or in post-conviction proceedings, before proceeding to federal court. See O’Sullivan, 526 U.S. at 845; see also Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This includes presentation of the claims to appellate courts where review is discretionary and such review is part of the ordinary appellate procedure in the State. O’Sullivan, 526 U.S. at 847
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(requiring a petitioner to present his claims to the Illinois Supreme Court in a petition for leave to file an appeal even though that Court’s review was discretionary).
To fairly present a claim in state court, the petitioner must include both the operative facts and the controlling legal principles on which the claim is based, and must also alert the state court that the claim raised is based on federal law. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001); Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004). If the federal court reviewing the habeas petition is not satisfied that the petitioner gave the state courts “a meaningful opportunity to pass upon the substance of the claims [ ] presented in federal court,” the Court cannot reach the merits. Chambers, 264 F.3d at 737; see also Sweeney, 361 F.3d at 332.
“Where state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim(s) to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim: although a federal court now has the option of denying the claim on its merits, 28 U.S.C. § 2254(d) (2), it must otherwise dismiss his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim(s).” Perruquet, 390 F.3d at 514 (citing Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509, 522 (1982)); see also 28 U.S.C. § 2254(b)(1) (A); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001). However, where a petitioner already has pursued state court remedies (but without presenting the federal claims in state court) and there is no longer any state corrective process available to him or her, “it is not the exhaustion doctrine that stands in the path of habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but rather the separate but related doctrine of procedural default.” Perruquet, 390 F.3d at 514.
It is undisputed that Petitioners have not complied with the exhaustion requirement. They did institute a direct action in the Illinois Supreme Court. Had that Court exercised its authority
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to take action on these matters, various abstention doctrines would have come into play and might have compelled (or at least counseled) this Court to stand down. The Court is not aware of any action that the Illinois Supreme Court has taken. Petitioners do not contend that the filing of their direct action to the state High Court satisfies the exhaustion doctrine. Rather, they submit that exhaustion should be excused because of the unavailability of the Circuit Court of Cook County, where Petitioners apparently would have preferred to file within the state court system.
As an initial matter, that may not have been a valid choice in any event, for none of the Petitioners is housed in a facility within Cook County. In general, a habeas petitioner must bring suit against the warden of the facility in which he is detained. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004). As the Supreme Court has explained, “[t]he federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is ‘the person who has custody over [the petitioner]’” and “[t]he consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner’s habeas petition.” Id. (citing 28 U.S.C. § 2242); see also W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1123 (N.D. Ill. 2018) (“the typical habeas petition requires that the warden of the custodial facility, rather than supervisory government officials, be named as the respondents”); Payne v. Illinois, 485 F. Supp. 2d 952, 952 (N.D. Ill. 2007) (“the proper habeas respondent is neither a disembodied governmental unit nor the “people” who are collectively the constituents of that unit, but rather the person who has custody over the habeas petitioner”). The presence of multiple petitioners may have afforded a choice in selecting a proper respondent, but it is doubtful that someone other than a warden of a facility housing a petitioner should have been named, for the general rule is that a petitioner may not sue the director of the jail system. See, e.g., Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005). Petitioners apparently sued Respondent
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Jeffreys, the IDOC Director, because they are proceeding on a representative theory, for which there is some support in Supreme Court and Seventh Circuit law. Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975) (although Rule 23 “does not apply to habeas corpus proceedings,” “a representative procedure analogous to the class action provided for in Rule 23 may be appropriate in a habeas corpus action under some circumstances) (citing Fed. R. Civ. P. 23); compare Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (U.S. 2018) (Thomas, J., concurring in part) (“This Court has never addressed whether habeas relief can be pursued in a class action.” (citing Schall v. Martin, 467 U.S. 253, 261, n. 10 (1984) (reserving this question)).15
There is no need to resolve the question of the proper respondent, because Plaintiffs have not made a satisfactory showing that the state court system was not every bit as available as the federal courts, if not more so. Assuming that filing in Cook County would have been proper, “Cook County’s courts are still available for emergency matters,” as Judge Kennelly found earlier this week. Mays v. Dart, 2020 WL 1812381, at *5 (N.D. Ill. Apr. 9, 2020). Petitioners have made no effort to establish that the trial courts in the numerous other counties where they are housed are unavailable and were so last week when this action was filed. Stateville Correctional Center, where the COVID-19 crisis was most acute within the IDOC system, is located less than five miles from the Will County Courthouse in Joliet, where the Circuit Court for the Twelfth Judicial Circuit sits. Under that court’s operative Administrative Order No. 2020-08, effective from March 18, 2020 through April 30, 2020, “[w]ith the exception of Branch Courts, all court facilities will be open normal business hours.” Administrative Order No. 2020-08, available at
15 Although the Court denies habeas relief based on Petitioners’ failure to exhaust their available state remedies, it adds that for all of the reasons stated above (see 30-33, supra), this habeas action would be no more suitable for representative or class treatment than the Section 1983 lawsuit is, as release determinations must be made on an individual basis regardless of the vehicle for considering and effectuating them.
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https://www.circuitclerkofwillcounty.com/Portals/0/Covid%20AO%2020-08.pdf (last checked Apr. 10, 2020). Within the Civil Division, where this matter likely would have been assigned, the General Order provides that “[m]atters determined by the Court to be of an emergency nature will be heard in-person, by telephone conference, or by videoconference if possible.” Id. ¶ 6A.
To be sure, exhaustion requirements can (and should) be waived when relief is truly unavailable. But waiving them here—when state courts clearly were available at least in the two counties identified above and for all Petitioners have shown, every other county and circuit as well—would turn the habeas system upside down. Accordingly, the Court denies Petitioners’ request for expedited release pursuant to the issuance of writs of habeas corpus.16
* * * * * In closing, the Court can do no better than to quote the three-judge panel from California before whom a group of plaintiffs in a similarly hard-hit state presented a claim seeking release (or relocation) due to the inability to observe social distancing during the COVID-19 pandemic: “We emphasize that Defendants have broad authority to voluntarily take steps that may prevent the life-threatening spread of COVID-19 within their prisons, and we recognize the deference that is due to prison authorities to determine which additional measures must be taken to avoid catastrophic results. * * * Defendants have represented to us that they are continuously evaluating what more they can do to protect the inmates within their prisons, and we urge them to leave no stone unturned. It is likely that only through significant effort will California’s prisons be able to
16 Because Petitioners asked for expedition, which was justified in the circumstances, the Court is reluctant to dismiss the Petition altogether without allowing Petitioners time for reflection on the ruling and the basis for it. However, following Judge Kennelly’s approach in Mays, 2020 WL 1812381, at *6 n.5, the Court is willing to consider entering a final order of dismissal (or any other viable approach of allowing Petitioners to seek further review) upon the filing of a motion requesting such relief. Any such motion should be presented to the undersigned judge in his capacity as emergency judge, although the motion may be referred to the assigned judge after filing.
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minimize the spread of COVID-19.” Coleman & Plata, 2020 WL 1675775, at *8. So, too, here in Illinois. IV. Conclusion
For the reasons set forth above, Plaintiffs’ motion for temporary restraining order and preliminary injunction in Money v. Pritzker, Case No. 20-cv-2093 [9] is denied. Plaintiffs’ motions for leave to file oversized brief [5] and for expedited treatment [12] in that same case are granted. Defendants’ motion for leave to file sur-reply in that case [32] is granted. Petitioners’ motion for expedited treatment in Money v. Jeffreys, Case No. 20-cv-2094 [3] is granted, but the Court denies Petitioners’ request for expedited release. The petition [1] remains open on the docket, subject to further action by the parties and the judges, both assigned and emergency (see above). No further status hearings will be set at this time by the emergency judge.

Dated: April 10, 2020

____________________________ Robert M. Dow, Jr. United States District Judge

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 Case: 1:20-cv-02093 Document #: 44 Filed: 04/29/20 Page 1 of 3 PageID #:659

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

JAMES MONEY, et al.,
Plaintiffs, v.

No. 20-C-2093 Honorable Steven C. Seeger

J.B. PRITHZoKnoErRab,leetSatle.,ven C. Seeger

Defendants.

DEFENDANTS’ MOTION TO DISMISS COMPLAINT WITH PREJUDICE

Defendants J.B. Pritzker, Governor of Illinois, and Rob Jeffreys, Acting Director of the

Illinois Department of Corrections, by their attorney, Kwame Raoul, Illinois Attorney General,

move to dismiss plaintiffs’ complaint pursuant Fed. R. Civ. P. 12(b)(6). They seek dismissal with

prejudice because plaintiffs do not state a plausible claim, and plaintiffs cannot cure the defects in

their complaint by repleading. In support of this motion, defendants state as follows:

1. In the face of the COVID-19 public health emergency, plaintiffs filed this action on

April 2, 2020, as part of a multi-pronged effort to compel the State to expedite the releases of

thousands of Illinois prisoners through various methods provided under Illinois law.

2. Plaintiffs assert three counts: Count I, under 42 U.S.C. § 1983, alleges defendants

are violating the Eighth Amendment prohibition on cruel and unusual punishment by being

deliberately indifferent to the risks COVID-19 poses to Illinois prisoners. Count II, also under 42

U.S.C. § 1983, alleges defendants are depriving plaintiffs of due process by failing to provide a

sufficiently efficient system-wide process to evaluate “with all deliberate speed” each individual

who may be eligible for transfer to home detention. Count III alleges defendants are violating Title

II of the Americans with Disabilities Act, 42 U.S.C. § 12132, by placing them at disproportionate

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risk because of their existing medical conditions, and by failing to provide them with a reasonable accommodation by not allowing them to quarantine at their homes.
3. Plaintiffs sought a temporary restraining order or preliminary injunction based on Counts I and III. Dkt. 9. In denying that motion, Judge Dow ruled that plaintiffs “have no chance of success” on their Eighth Amendment deliberate indifference claim in Count I. Dkt. 38 at 38. Judge Dow similarly rejected plaintiffs’ ADA claim in Count III, concluding that “Plaintiffs do not have a reasonable likelihood of success under any of the three ways of establishing an ADA discrimination claim.” Id. at 41. Count II is also fatally deficient because plaintiffs do not have a liberty or property interest, as needed to sustain a due process claim.
4. Besides plaintiffs’ inability to plead a plausible claim on the merits, plaintiffs’ claims are procedurally barred because the relief they seek—a release of thousands of prisoners through furloughs, home detentions, or outright releases based on sentence credits—is not allowed under the Prison Litigation Reform Act, § 3626(a)(3)(A), and Heck v. Humphrey, 512 U.S. 477 (1994).
5. Plaintiffs’ requested relief is particularly inappropriate here, where the Governor and the Director have responded to the COVID-19 public health emergency by taking multiple actions to protect Illinois prisoners, including by releasing those who can safely be released consistent with Illinois law.
6. Because the defects in the complaint cannot be cured by amendment, defendants ask the Court to dismiss the complaint with prejudice.
For these reasons, and those detailed in the accompanying memorandum, defendants respectfully request that the Court grant their motion to dismiss plaintiffs’ complaint with prejudice.
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Dated: April 29, 2020
KWAME RAOUL Attorney General of Illinois
Nicholas S. Staley Colleen Shannon Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

Respectfully Submitted,
/s/ R. Douglas Rees R. DOUGLAS REES
Deputy Attorney General, Civil Litigation Office of the Illinois Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-3498 drees@atg.state.il.us

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 Case: 1:20-cv-02093 Document #: 45 Filed: 04/29/20 Page 1 of 40 PageID #:662

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

JAMES MONEY, et al.,

Plaintiffs, Hvo. norable Steven C. Seeger
J.B. PRITZKER, et al.,

No. 20-C-2093 Honorable Steven C. Seeger

Defendants.

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS WITH PREJUDICE

KWAME RAOUL Attorney General of Illinois
R. Douglas Rees Nicholas S. Staley Colleen Shannon Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601
April 29, 2020

Case: 1:20-cv-02093 Document #: 45 Filed: 04/29/20 Page 2 of 40 PageID #:663
TABLE OF CONTENTS
Introduction .....................................................................................................................................1 Background .....................................................................................................................................2
Procedural Posture .....................................................................................................................2 The Named Plaintiffs ................................................................................................................3 Plaintiffs’ Proposed Class, Subclasses, and Relief ...................................................................3 Defendants’ Response to COVID-19 ........................................................................................4 Legal Standard ................................................................................................................................8 Argument ......................................................................................................................................10 I. The Court Should Dismiss Plaintiffs’ Claims with Prejudice Because the Requested Relief is Barred by the PLRA and Heck ............................................................................................10
A. Plaintiffs seek what amounts to a prisoner release order that is not allowed under the PLRA ................................................................................................................................10 B. Plaintiffs’ requested relief is Heck-barred ....................................................................14 C. Plaintiffs should have to exhaust their administrative remedies ..................................18 II. Plaintiffs Do Not Allege Plausible Eighth Amendment, Due Process, or ADA Claims ...19 A. Count I fails because plaintiffs do not and cannot allege the Governor or Director recklessly disregarded a recognized risk to plaintiffs’ health or safety ............................19 B. Plaintiffs cannot sustain a due process claim because they lack a cognizable liberty or property interest ................................................................................................................21 C. Plaintiffs’ ADA claim fails because plaintiffs do not plausibly allege they are being denied services because of their alleged disabilities .........................................................25
1. Plaintiffs’ proposed disparate impact theory fails ............................................26 2. Plaintiffs’ reasonable accommodation theory fails ...........................................27 III. Plaintiffs’ Proposed Relief Violates Federalism, Comity, and Abstention Principles .....29 Conclusion ....................................................................................................................................32
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TABLE OF AUTHORITIES Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 9 Belcher v. Norton, 497 F.3d 742 (7th Cir 2007) ........................................................................... 25 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................... 9 Berwanger v. Cottey, 178 F.3d 834 (7th Cir 1999) ...................................................................... 11 Bogie v. Rosenberg, 705 F.3d 603 (7th Cir. 2013) ....................................................................... 10 Boykin v. Dixon Mental Health Servs., No. 16-CV-50160, 2018 WL 8806095 (N.D. Ill. Oct. 15,
2018) ......................................................................................................................................... 31 Boykin v. Fischer, No. 16-CV-50160, 2019 WL 6117580 (N.D. Ill. Nov. 18, 2019) .................. 31 Brown v. Plata, 563 U.S. 493 (2011)...................................................................................... 14, 18 Brueggeman ex rel. Brueggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003).......................... 26 Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003) ..................................................................... 21 Conway v. Wagnor, No. 19-CV-036, 2019 WL 183903 (S.D. Ill. Jan. 14, 2019)........................ 31 Cornille v. Lashbrook, No. 19-CV-002, 2019 WL 366562 (S.D. Ill. Jan. 30, 2019) ................... 31 County of Sacramento v. Lewis, 523 U.S. 833 (1998).................................................................. 25 Courthouse News Serv. v. Brown, 908 F.3d 1063 (7th Cir. 2018) ............................................... 30 Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931 (N.D. Ind. 2009)........................................ 26 Davis v. Streekstra, 227 F.3d 759 (7th Cir. 2000) ........................................................................ 11 Del Rio v. Schwarzenegger, No. 09-CV-0214, 2010 WL 347888 (C.D. Cal. Jan. 20, 2010)....... 31 Denius v. Dunlap, 330 F.3d 919 (7th Cir. 2003) ............................................................................ 1 Edwards v. Balisok, 520 U.S. 641 (1997)..................................................................................... 17 Estelle v. Gamble, 429 U.S. 97 (1976) ................................................................................... 20, 21 Falcon v. U.S. Bureau of Prisons, 52 F.3d 137 (7th Cir. 1995) ................................................... 16 Farmer v. Brennan, 511 U.S. 825 (1994) ............................................................................... 20, 21 Frame v. City of Arlington, 575 F.3d 432 (5th Cir. 2009) ............................................................ 26 Friends of the Earth, Inc. v Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000).................... 3 Gillette v Prosper, 858 F.3d 833 (3rd Cir. 2017).......................................................................... 12 Gonzalez-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010).............................................. 16, 17, 18 Graham v. Broglin, 922 F.2d 379 (7th Cir. 1991) .................................................................. 16, 17 Graham v. Connor, 490 U.S. 386 (1989) ..................................................................................... 25 Grennier v. Frank, 453 F.3d 442 (7th Cir. 2006) ................................................................... 22, 23 Hadley v. Holmes, 341 F.3d 661 (7th Cir. 2003) .......................................................................... 24
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Heck v. Humphrey, 512 U.S. 477 (1994) ................................................................................ 10, 14 Hill v. Capital One Bank (USA), N.A., No. 14-CV-6236, 2015 WL 468878 (N.D. Ill. Feb. 3,
2015) ........................................................................................................................................... 1 J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289 (10th Cir. 2016)................................................... 27 Johnson v. Litscher, 260 F.3d 826 (7th Cir. 2001) ....................................................................... 16 Jones v. Bock, 549 U.S. 199 (2007) .............................................................................................. 19 Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1989) ...................................... 22, 23 Lee v. Young, 533 F.3d 505 (7th Cir. 2008).................................................................................. 20 Love v. Westville Corr. Ctr., 103 F.3d 55 (7th Cir. 1996) ...................................................... 26, 28 McCauley v. City of Chicago, 671 F.3d 611 (7th Cir. 2011) ........................................................ 10 Meachum v. Fano, 427 U.S. 215 (1976)....................................................................................... 32 Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001).............................................................. 23 Muhammad v. Close, 540 U.S. 749 (2004)................................................................................... 15 Murphy v. Raoul, 380 F. Supp. 3d 731 (N.D. Ill. 2019) ............................................................... 15 O’Brien v. Vill. of Lincolnshire, No. 19-1349, 2020 WL 1684076 (7th Cir. Apr. 7, 2020) ........... 9 Olim v. Wakinekona, 461 U.S. 238 (1983) ................................................................................... 24 Pavarti Corp. v. City of Oak Forest, 630 F.3d 512 (7th Cir. 2010)................................................ 3 Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008)............................................................................. 19 Peate v. McCann, 294 F.3d 879 (7th Cir. 2002)........................................................................... 21 Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998),............................................ 26 Petties v. Carter, 836 F.3d 722 (7th Cir. 2016) ............................................................................ 20 Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999) ........................................................................ 16 Plata v. Newsom, No. 01 C 1351, WL 1908776 (N.D. Cal. Apr. 17, 2020)........................... 12, 14 Preiser v. Rodriguez, 411 U.S. 475 (1973)................................................................................... 32 Randolph v. Rodgers, 170 F.3d 850 (8th Cir. 1999)..................................................................... 28 Rehling v. City of Chicago, 207 F.3d 1009 (7th Cir. 2000) .......................................................... 28 Rhodes v. Chapman, 452 U.S. 337, 351 (1981)............................................................................ 32 Richmond v. Scibana, 387 F.3d 602 (7th Cir. 2004)..................................................................... 15 Richmond v. Scibana, 387 F.3d 602 (7th Cir. 2004)..................................................................... 18 Rizzo v. Goode, 423 U.S. 362 (1976)...................................................................................... 30, 31 Rosario v. Brawn, 670 F.3d 816 (7th Cir. 2012) .......................................................................... 21 Ross v. Blake, 136 S. Ct. 1850 (2016) .......................................................................................... 19 Rowe v. Finnan, No. 11-CV-524, 2013 WL 74609 (S.D. Ind. Jan. 4, 2013)................................ 32
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Sandin v. Conner, 515 U.S. 472 (1995) ........................................................................................ 32 Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020) .......................................................................... 15 Sung Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828 (7th Cir. 2012) ............................... 24 Taylor v. Edgar, 52 F. App’x 825 (7th Cir. 2002)........................................................................ 23 Turner v. Safley, 482 U.S. 78 (1987) ............................................................................................ 32 U.S. v. Cook County, Illinois, 761 F. Supp. 2d 794 (N.D. Ill. 2011) ............................................ 11 Ungerleider v. Fleet Mortg. Grp. of Fleet Bank, 329 F. Supp. 2d 343 (D. Conn. 2004). ............ 29 United States v. Lanier, 520 U.S. 259 (1997) ............................................................................... 25 Washington v. Ind. High Sch. Athletic Assn., Inc., 181 F.3d 840 (7th Cir. 1999) ........................ 26 Whiting v. Wexford Health Sources, Inc., 839 F.3d 658 (7th Cir. 2016)...................................... 20 Wilkinson v. Dotson, 544 U.S. 74 (2005) ............................................................................... 15, 18 Williamson v. Curran, 714 F.3d 432 (7th Cir. 2013) ...................................................................... 9 Statutes 18 U.S.C. § 3626........................................................................................................................... 11 18 U.S.C. § 3626(a)(3).................................................................................................................. 18 18 U.S.C. § 3626(a)(3)(A) ............................................................................................................ 11 18 U.S.C. § 3626(g)(2) ................................................................................................................. 11 18 U.S.C. § 3626(g)(4) ................................................................................................................. 12 18 U.S.C. §§ 3626(a)(3)(B) .......................................................................................................... 11 18 U.S.C. §§ 3626(a)(3)(E)..................................................................................................... 11, 13 20 Ill. Admin. Code § 107.142 ....................................................................................................... 7 20 Ill. Admin. Code § 107.20 ......................................................................................................... 7 20 Ill. Admin. Code 107.210 ........................................................................................................ 24 20 Ill. Admin. Code 504.800 ........................................................................................................ 19 28 C.F.R. §§ 35.130(b)(7)............................................................................................................. 28 28 C.F.R. § 35.150(a)(3) ............................................................................................................... 28 28 C.F.R. § 35.164 ........................................................................................................................ 28 42 U.S.C. § 12131(2) .................................................................................................................... 28 42 U.S.C. § 12132......................................................................................................................... 26 42 U.S.C. § 1997e ......................................................................................................................... 11 42 U.S.C. § 1997e(a)..................................................................................................................... 19 730 ILCS 5/3-11-1 .............................................................................................................. 3, 17, 26 730 ILCS 5/3-11-1(a)(2) ............................................................................................................... 29
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730 ILCS 5/3-6-3(a)(3) ......................................................................................................... 6, 7, 24 730 ILCS 5/5-8A-3 ..................................................................................................................... 6, 7 730 ILCS 5/5-8A-3(d)..................................................................................................................... 7 730 ILCS 5/5-8A-4 ....................................................................................................................... 17 730 ILCS 5/5-8A-4(A).............................................................................................................. 4, 17 Wis. Stat. § 304.06(1)(b) (2014) ................................................................................................... 23 Other Authorities CDC, Coronavirus Disease 2019 (COVID-19): Guidance Documents, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/communication/guidancelist.html?Sort=Date%3A%3Adesc.............................................................................................. 5 CDC, Coronavirus Disease 2019 (COVID-19): Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html ......................................................................................................... 5 COVID-19 Response, Illinois Department of Corrections, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx.................................... 5 https://www.chicagotribune.com/coronavirus/ct-coronavirus-pritzker-inmate-commutations20200409-ql323nt4azfitagdeon5gswn2q-story.html .................................................................. 6 https://www.idoc.state.il.us/subsections/search/ISdefault2.asp...................................................... 3 https://www.saferfoundation.org .................................................................................................... 8 https://www.tasc.org/TascBlog/images/documents/TASC-FactSheet.pdf ..................................... 8 https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx........................................ 3 https://www2.illinois.gov/idoc/Offender/Pages/CommunityNotificationofInmateEarlyRelease.as px................................................................................................................................................. 6 https://www2.illinois.gov/idoc/Offender/pages/inmatesearch.aspx ........................................... 3, 6 IDOC, Visitation Rules & Information, Illinois Department of Corrections, https://www2.illinois.gov/idoc/facilities/Pages/VisitationRules.aspx; see also State of Illinois Coronavirus (COVID-19) Response, Coronavirus Disease 2019 (COVID-19) What Illinois is Doing, https://coronavirus.illinois.gov/s/.................................................................................... 8 IDPH, COVID-19 Press Update Video, at 6:54-8:38 (Mar. 31, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-zlist/coronavirus/media-publications/daily-press-briefings.......................................................... 7 PRB, Operations and Hearing Information, Prisoner Review Board, https://www2.illinois.gov/sites/prb/Event%20Documents/2020%20Interviews/4.2020%20Insti tutional%20hearings%20PUBLIC.pdf........................................................................................ 8 Pritzker, Governor J.B., Executive Order 2020-11 (Mar. 23, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-11.pdf............ 7
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Pritzker, Governor J.B., Executive Order 2020-13 (Mar. 26, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-13 .................. 6
Pritzker, Governor J.B., Executive Order 2020-18 (Apr. 1, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-18.pdf........ 6, 7
Pritzker, Governor J.B., Executive Order 2020-21 (Apr. 6, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-21.pdf...... 8, 29
Pritzker, Governor J.B., IDPH, COVID-19 Press Update Video, at 5:34-6:07 (Mar. 31, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-zlist/coronavirus/media-publications/daily-press-briefings; https://www.chicagotribune.com/coronavirus/ct-coronavirus-pritzker-inmate-commutations20200409-ql323nt4azfitagdeon5gswn2q-story.html .................................................................. 6
Rules Fed. R. Evid. 201(b)........................................................................................................................ 1 Constitutional Provisions U.S. Const. amend. VIII................................................................................................................ 20
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Introduction In denying plaintiffs’ motion for emergency relief seeking expedited transfers or furloughs of Illinois prisoners to their homes, Judge Dow ruled that plaintiffs “have no chance of success” on their Eighth Amendment deliberate indifference claim in Count I. Dkt. 38 at 38. Judge Dow similarly rejected plaintiffs’ ADA claim in Count III, concluding that “Plaintiffs do not have a reasonable likelihood of success under any of the three ways of establishing an ADA discrimination claim.” Id. at 41. Plaintiffs (as habeas petitioners) raised their procedural due process claim in Count II as a basis for habeas relief in case 2094, but not for emergency relief in this case. In any event, that claim is fatally deficient because plaintiffs do not have a cognizable liberty or property interest needed to sustain a due process claim. Defendants now ask the Court to dismiss this action with prejudice because the pleadings, exhibits, and matters subject to judicial notice show that plaintiffs do not and cannot state a plausible claim for their request for a mandatory injunction to require immediate home furlough, home detention, or outright release of thousands of Illinois prisoners. As noted in defendants’ opposition to plaintiffs’ emergency motion, Dkt. 26, the Court and the public need only watch Governor Pritzker’s daily press briefing, or review the websites of the Illinois Department of Corrections, the Illinois Department of Public Health, and any number of other state offices and agencies, to see that the Governor, the Department, and the State have implemented immediate and drastic steps to address the COVID-19 public health emergency to protect all Illinois citizens, including those incarcerated in state prisons.1 Plaintiffs have no
1 A court may take judicial notice of “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 reasonably be questioned.” Fed. R. Evid. 201(b); see also Hill v. Capital One Bank (USA), N.A., No. 14-CV-6236, 2015 WL 468878, at *5 (N.D. Ill. Feb. 3,
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plausible basis for their claims asserting deliberate indifference, a lack of due process, or discrimination in violation of the ADA.
Background Procedural Posture
In the face of the COVID-19 public health emergency, plaintiffs initiated this action on April 2, 2020, as part of a multi-pronged effort to compel the State to expedite the releases of thousands of Illinois prisoners through various methods provided under Illinois law. Along with their complaint in this action, Dkt. 1, plaintiffs filed an emergency motion seeking expedited home furloughs for two proposed subclasses of prisoners based on their age or underlying medical condition. Dkt. 9. The same day, plaintiffs (as petitioners) filed an emergency habeas petition in case 20-C-2094. Both cases were added to the emergency docket (case 20-C-1792) and assigned to Judge Dow as the emergency judge. On April 2, 2020, plaintiffs also filed in the Illinois Supreme Court a motion for leave to file an “Original Petition for a Writ of Mandamus” seeking essentially the same relief they seek in their complaint here. Ill. S. Ct. No. 125912.
After expedited briefing on plaintiffs’ emergency motion and habeas petition, Judge Dow issued a memorandum opinion and order on April 10, 2020. Dkt. 38 in case 2093. Judge Dow denied plaintiffs’ motion for emergency relief in this case, and denied petitioners’ request for expedited release in case 2094. Id. On April 14, 2020, the Illinois Supreme Court denied plaintiffs’ request to file a mandamus petition. Ill. S. Ct. No. 125912.
2015) (citing Denius v. Dunlap, 330 F.3d 919, 926 (7th Cir. 2003) (noting that contents of government websites are subject to judicial notice)).
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The Named Plaintiffs Plaintiffs are ten individuals serving sentences in various Illinois state prisons for
convictions ranging from drug crimes to first-degree murder.2 Two of them, James Money and Carl Reed, have been released from prison after the Governor commuted their sentences, rendering their claims moot.3
Although the complaint emphasizes conditions at Stateville Correctional Center, e.g., Dkt. 1 ¶¶ 2, 3, 43, 44, 71, 72, 91, no plaintiff is housed at Stateville. Also, no plaintiff claims to have COVID-19. Six plaintiffs (Tate, Richard, Daniels, Labosette, Watters, and Green) are at facilities (Danville, Dixon, Joliet Treatment Center, Robinson, and Logan) where, as of this filing, no prisoner has a confirmed case of COVID-19.4 Two plaintiffs (G. Reed and Rodesky) are at facilities (the Northern Reception and Classification Center (NRC), and Pontiac) where each facility has just one confirmed case among prisoners. Id.; see also Dkt. 1 ¶¶ 8–17, 93–102. Plaintiffs’ Proposed Class, Subclasses, and Relief
Plaintiffs seek to certify a class consisting of all prisoners housed in the Illinois Department of Corrections during the COVID-19 pandemic. Dkt. 1 ¶ 103. They then seek an order requiring the immediate “release from physical custody” (id.) of all individuals in the following six subclasses:
 Subclasses 1 and 2, seeking furloughs under 730 ILCS 5/3-11-1 based on medical condition (subclass 1) or age (over 55) (subclass 2). Dkt. 1 ¶ 103(a) and (b). Five remaining plaintiffs (Richard, G. Reed, Green, Labosette, and Tate) claim to be in
2 Offender sentencing information is available on IDOC’s website at https://www.idoc.state.il.us/subsections/search/ISdefault2.asp. 3 Governor Pritzker commuted the sentences of James Money and Carl Reed on April 8 and 10, 2020, respectfully. See https://www2.illinois.gov/idoc/Offender/pages/inmatesearch.aspx; A party’s claim becomes moot when “a party with standing at the inception of the litigation loses it due to intervening events.” Pavarti Corp. v. City of Oak Forest, 630 F.3d 512, 516 (7th Cir. 2010) (citing Friends of the Earth, Inc. v Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000)). 4 https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx.
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subclasses 1 or 2 based on their age or medical condition (or both). Id. ¶¶ 94, 95, 97, 98, 100.  Subclasses 3–5, seeking transfers to home detention under 730 ILCS 5/5-8A-4(A). Dkt. 1 ¶ 103(c)–(e). Three named plaintiffs (Richard, Green, and Labosette) claim to be in one or more of these subclasses. Id. ¶¶ 94, 97, 98.  Subclass 6, seeking up to 180 days of good conduct credit to shorten their sentences and trigger releases from prison. Dkt. 1 ¶ 103(f). One remaining plaintiff (Richard) claims to be in this subclass (as well as subclasses 1, 2, and 3). Dkt. 1 ¶ 94. Two of the named plaintiffs (Daniels and Rodesky) seek to be part of the overall class of all prisoners incarcerated during the COVID-19 public health emergency, but not part of any subclass seeking an immediate release, transfer, or furlough. Dkt. 1 ¶¶ 101, 102. Of the more than 36,000 prisoners in the proposed overall class, plaintiffs estimate there are approximately 12,000 prisoners in subclass 1; 4,807 prisoners in subclass 2; 700 in subclass 3; 9,000 in subclass 4; 2,401 in subclass 5; and 5,308 in subclass 6, with some prisoners overlapping more than one subclass. Dkt. 1 ¶ 105. In short, plaintiffs are asking this Court to issue a mandatory injunction to require the Department of Corrections to immediately furlough to their homes, transfer to home detention, or issue sentencing credit to obtain releases of several thousand prisoners. Dkt. 1 at 46–47. Defendants’ Response to COVID-19 This memorandum details the fundamental legal flaws with plaintiffs’ claims and why they do not—and cannot—support the immediate home furloughs, transfers, and releases plaintiffs seek. But first we summarize the actions taken by the defendants, the Governor and the Department’s Acting Director (the “Director”) to ensure the safety of those incarcerated in the Department of Corrections (the “Department”). These actions are subject to judicial notice, and many of them are acknowledged in plaintiffs’ complaint.
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The Governor issued a disaster proclamation on March 9, 2020, four days before the federal government announced a national emergency.5 The Department followed immediately by enacting strict measures, consistent with CDC guidelines,6 to protect those who are housed and work in Illinois prisons. The Department adopted a pandemic response plan consistent with CDC guidance, enhanced screening and testing for COVID-19, increased hygiene and sanitation measures, new limits (and now a prohibition) on outside visitors, and increased separation of prisoners through an administrative quarantine7. See Dkt. 2-9.8
Although the Court need not look beyond plaintiffs’ pleading to reject their request for relief, the Court can take judicial notice that over the past several weeks, including well before plaintiffs filed their complaint, defendants were already taking unprecedented and extraordinary measures to mitigate the risk of COVID-19 in Illinois prisons, including by systematically reviewing prisoners, including the groups identified in the complaint, to determine who could be released safely under Illinois law. These actions include the following:
 As plaintiffs admit (Dkt. 1 ¶ 73; Dkt. 9 at 27), the Governor has suspended admissions of new prisoners from all Illinois county jails, with limited exceptions at the sole
5 Dkt. 1 ¶ 20, citing Gubernatorial Disaster Declaration. 6 CDC, Coronavirus Disease 2019 (COVID-19): Guidance Documents, CDC, https://www.cdc.gov/coronavirus/2019-ncov/communication/guidancelist.html?Sort=Date%3A%3Adesc. 7 See IDOC, COVID-19 Response, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx. 8 COVID-19 Response, Illinois Department of Corrections, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited Apr. 5, 2020); see also CDC, Coronavirus Disease 2019 (COVID-19): 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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discretion of the Director. Executive Order 2020-13;9 see also Executive Order 202018 (extending Executive Order 2020-13 through April 30, 2020).10
 Plaintiffs also admit the Governor has activated the Illinois National Guard to provide additional medical support at Stateville. Dkt. 1 ¶¶ 91; Dkt. 9 at 48.
 The Governor is continuing to review and grant commutation petitions, including those of named plaintiffs James Money and Carl Reed, who were released from custody on April 8 and 10, 2020, respectively11. The governor has commuted the sentences of 17 inmates since March 11, 2020.12
 Plaintiffs admit the Department had already released (as of April 2, 2020) 300 prisoners. Dkt. 1 ¶ 38. As of April 29, 2020, the Department has released over 900 prisoners through various methods, including commutations, sentence credits, restoration of credit, and electronic detention.13 This does not count over 150 additional prisoners who have been furloughed from Adult Transition Centers.
 Between March 2 and April 29, 2020, the Department reduced its population by more than 3,900 prisoners.14
 The Department is continuing to award up to 180 days of Earned Discretionary Sentencing Credit (EDSC) for eligible offenders pursuant to 730 ILCS 5/3-6-3(a)(3).15 The sentencing credit is within the sole discretion of the Director, but must be based on
9 Pritzker, Governor J.B., Executive Order 2020-13 (Mar. 26, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-13.pdf. 10 Pritzker, Governor J.B., Executive Order 2020-18 (Apr. 1, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-18.pdf. 11 See https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx; https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx. 12 See n. 3 above; see also https://www2.illinois.gov/idoc/Offender/pages/inmatesearch.aspx; https://www2.illinois.gov/idoc/Offender/pages/inmatesearch.aspx. https://www.chicagotribune.com/coronavirus/ct-coronavirus-pritzker-inmate-commutations-20200409ql323nt4azfitagdeon5gswn2q-story.html. 13 See https://www2.illinois.gov/idoc/Offender/Pages/CommunityNotificationofInmateEarlyRelease.aspx. 14 See Id. (providing that a total of 3,957 inmates have exited all IDOC facilities between March 1, 2020 and April 27, 2020, and 923 of those offenders were released after receiving Earned Discretionary Sentencing Credit pursuant to 730 ILCS 5/3-6-3(a)(3) or being placed on electronic detention pursuant to 730 ILCS 5/5-8A-3). See also Dkt. 36. This number was 1,069 (since February 1, 2020) as of Governor Pritzker’s March 31, 2020 press briefing. See Pritzker, Governor J.B., IDPH, COVID-19 Press Update Video, at 5:34-6:07 (Mar. 31, 2020), available at http://www.dph.illinois.gov/topics-services/diseasesand-conditions/diseases-a-z-list/coronavirus/media-publications/daily-press-briefings; https://www.chicagotribune.com/coronavirus/ct-coronavirus-pritzker-inmate-commutations-20200409ql323nt4azfitagdeon5gswn2q-story.html. 15 See https://www2.illinois.gov/idoc/Offender/Pages/CommunityNotificationofInmateEarlyRelease.aspx.
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the results of a risk or needs assessment, circumstances of the crime, any history of conviction for a forcible felony, the offender’s behavior and disciplinary history, and the inmate’s commitment to rehabilitation, including participation in programming. Id. The Director is prohibited from awarding discretionary sentencing credit to any inmate unless the inmate has served a minimum of 60 days. Id.
 On April 6, 2020, the Department filed an emergency rule change to amend the Administrative Code, 20 Ill. Admin. Code § 107.20, to relax the award of Earned Disciplinary Sentence Credit (EDSC) for those with 100-level disciplinary tickets.
 Pursuant to at 730 ILCS 5/3-6-3(a)(3) and 20 Ill Adm. Code 107.142, the Department identifies offenders who are within nine months of their release date and conducts individualized reviews to determine whether they are eligible for early release. The review requires staff to examine an offender’s file for disciplinary history, commitment to rehabilitation, and criminal history. Offenders with forcible felonies, violent criminal histories, significant disciplinary issues, and outstanding warrants are not approved for the sentencing credit.
 The Department is continuing to place offenders on electronic monitoring or home detention pursuant to 730 ILCS 5/5-8A-3.16 The Department has already placed 16 of 21 pregnant and postpartum offenders on home detention, and is now concentrating its efforts on those who are 55 years or older, have served at least 25% of the sentence and are within 12 months of release.17 Although this category is permitted under 730 ILCS 5/5-8A-3(d), the Department must conduct individual assessments to ensure placement outside of a secure facility is appropriate.18
 To allow for faster releases of prisoners, the Governor has suspended the required 14day notification to State’s Attorneys for inmates released early as a result of earned sentence credit for good conduct. Executive Order 2020-11;19 see also Executive Order 2020-18 (extending Executive Order 2020-11 through April 30, 2020).20
16 Id. 17 IDPH, COVID-19 Press Update Video, at 6:54-8:38 (Mar. 31, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus/mediapublications/daily-press-briefings. 18 Id. 19 Pritzker, Governor J.B., Executive Order 2020-11 (Mar. 23, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-11.pdf. 20Pritzker, Governor J.B., Executive Order 2020-18 (Apr. 1, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-18.pdf.
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 On April 6, 2020, the Governor filed an additional Executive Order (EO 2020-21) to suspend the 14-day limit for furloughs and allow furloughs at the Director’s discretion consistent with guidance from the Department’s medical director.21
 The PRB continues to conduct release revocation hearings.22 As always, each case is reviewed on an individual basis, with consideration of the facts and circumstances of each alleged violation or set of violations, including the protection of victims, the safety of those in the State’s custody, and the overall public health concerns currently facing the State. The PRB is also taking into account the nature of the current extraordinary circumstances in all cases as a result of COVID-19, while recognizing that each decision must be made with the goals of protecting public safety and safely and restoring releasees to productive lives.
 The Governor and the Director continue to monitor these and other efforts, and the Department continues to make necessary changes as the situation evolves.23
These are the actions of officials who are responding quickly and aggressively to combat
COVID-19—actions that are the opposite of deliberate indifference. Plaintiffs nevertheless assert
the bald conclusion that the Governor and Director have not acted with sufficient “urgency or
decisiveness” and have “failed to take reasonable measures” to reduce the prison population
“substantially” to their satisfaction. Dkt. 1 ¶¶ 74, 111. Plaintiffs’ allegations do not present a
plausible claim for deliberate indifference, a failure of due process, or discrimination in violation
of the ADA.
Legal Standard
As discussed below, the Court should dismiss plaintiffs’ claims based on procedural bars
imposed by the Prison Litigation Reform Act (barring prisoners from using § 1983 and the ADA
21 Pritzker, Governor J.B., Executive Order 2020-21 (Apr. 6, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-21.pdf. 22 PRB, Operations and Hearing Information, Prisoner Review Board, https://www2.illinois.gov/sites/prb/Event%20Documents/2020%20Interviews/4.2020%20Institutional%2 0hearings%20PUBLIC.pdf. 23 IDOC, Visitation Rules & Information, Illinois Department of Corrections, https://www2.illinois.gov/idoc/facilities/Pages/VisitationRules.aspx; see also State of Illinois Coronavirus (COVID-19) Response, Coronavirus Disease 2019 (COVID-19) What Illinois is Doing, https://coronavirus.illinois.gov/s/.
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to obtain a prisoner release order except in limited circumstances not present here) and the Heck line of cases that prevents prisoners from using claims like those asserted here to seek a “quantum change” in their level of confinement.
If the Court decides to consider the merits of plaintiffs’ claims, it should dismiss them with prejudice because plaintiffs do not and cannot state a plausible claim as required under Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 (2007). Courts deciding motions to dismiss may consider “documents that are attached to the complaint, documents that are central to the complaint and are referred to in it, and information that is properly subject to judicial notice.” O’Brien v. Vill. of Lincolnshire, No. 19-1349, 2020 WL 1684076, *3 (7th Cir. Apr. 7, 2020) (quoting Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). Courts must accept as true all well-pleaded facts and draw all reasonable inferences in favor of the non-moving party, O’Brien, 2020 WL 1684076, *3, but legal conclusions and “conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
And while courts generally will allow a plaintiff to amend a complaint that is dismissed for failure to state a claim, Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013), leave to amend “need not be granted, however, if it is clear that any amendment would be futile.” Id. (affirming dismissal with prejudice because plaintiffs could not avoid legal deficiencies that doomed invasion of privacy and misappropriation of image claims). That is the case here. None of plaintiffs’ claims—all based heavily on conclusory and ultimately hearsay opinions in various expert reports incorporated into the complaint—meets the required plausibility standard.
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Argument Plaintiffs have no legitimate basis for the extraordinary relief they seek: a mandatory injunction directing the State to immediately release thousands of Illinois prisoners “to their homes.” See Dkt. 1 ¶ 105. That relief is particularly inappropriate here, where the Governor and the Director have responded to the COVID-19 public health emergency by taking multiple actions to protect Illinois prisoners from the risks posed by the virus. Plaintiffs’ requested relief is procedurally barred, not justified by any viable legal claim, and against the public interest. Because these defects cannot be cured, the complaint should be dismissed with prejudice. I. The Court Should Dismiss Plaintiffs’ Claims with Prejudice Because the Requested Relief is Barred by the PLRA and Heck. The Court should dismiss the complaint at the outset because plaintiffs’ requested relief is barred by the Prison Litigation Reform Act and by Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny. The PLRA and the “Heck bar” prevent plaintiffs from obtaining their requested releases, transfers, and furloughs to their homes. A. Plaintiffs seek what amounts to a prisoner release order that is not allowed under
the PLRA. The PLRA is principally codified at 42 U.S.C. § 1997e, but it also encompasses the provisions of 18 U.S.C. § 3626 concerning appropriate prison condition remedies. Davis v. Streekstra, 227 F.3d 759, 761 (7th Cir. 2000); Berwanger v. Cottey, 178 F.3d 834, 836 (7th Cir 1999). Although § 3626 of the PLRA allows federal courts in limited instances to issue a “prisoner release order,” § 3626(a)(3)(A) unequivocally provides that “no court shall enter a prisoner release order unless—(i) 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 (ii) the defendant has had a reasonable amount of time to comply with the previous
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court orders.” 18 U.S.C. § 3626(a)(3)(A); see also U.S. v. Cook County, Illinois, 761 F. Supp. 2d 794, 796 (N.D. Ill. 2011). Section 3626 also mandates that a prisoner release order may be entered “only by a three-judge court,” and “only if the court finds by clear and convincing evidence that— (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 18 U.S.C. §§ 3626(a)(3)(B), (E); see also Cook County, 761 F. Supp. 2d at 796 (three-judge panel reviewing request for prisoner release order).
These PLRA requirements apply to each legal claim in plaintiffs’ complaint. Section 3626(g)(2) expressly applies to any “civil action with respect to prison conditions,” defined 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[.]” 18 U.S.C. § 3626(g)(2). Thus, plaintiffs must satisfy § 3626 not only for their § 1983 claims in Counts I and II, but also for their ADA claim in Count III. See Gillette v Prosper, 858 F.3d 833, 837 (3rd Cir. 2017) (reviewing district court’s denial of request for three-judge panel for both § 1983 and ADA claims).
These requirements also govern the substantive relief plaintiffs seek in their complaint. On behalf of various subclasses, plaintiffs seek medical furloughs to their homes, home detention transfers, and mandatory awards of sentencing credits to obtain early releases. Dkt. 1 at 46–47. By trying to abandon the complaint’s relief and instead propose (at least for the two subclasses at issue in their motion for emergency relief) only a “process” where the subclasses would be evaluated for a furlough or home detention, plaintiffs have already implicitly acknowledged that the relief requested in the complaint would constitute a “prisoner release order.” Dkt. 24 at 5. Judge Dow determined that this attempted reframing could not avoid § 3626 because plaintiffs continue to
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seek an order resulting in the physical removal of a large number of prisoners from their facilities to their homes. Dkt. 38 at 28–29.
Judge Dow also rejected plaintiffs’ assertion that their requested relief does not qualify as a “prisoner release order” as defined in the PLRA, 18 U.S.C. § 3626(g)(4), because anyone released pursuant to the order would remain under some state control. Judge Dow recognized that under the plain language of § 3626(g)(4), the relevant inquiry is whether the requested order would direct the release of prisoners or have the purpose or effect of reducing the prison population. Dkt. 38 at 26. That is what plaintiffs are seeking here. The three-judge panel overseeing California prison crowding reached the same conclusion in ruling that release orders that require supervision must comply with the PLRA. Plata v. Newsom, No. 01 C 1351, Dkt. 361 at 5 (denying prisoner release order even though the class requested parole and community supervision).
Plaintiffs also argued that § 3626 is limited to cases where prisoners need to be released so that pre-existing prison population caps are not exceeded, see Dkt. 24 at 10, but Judge Dow rejected this argument as well, finding no such limitation in the text of the PLRA. Dkt. 38 at 25– 26. To the contrary § 3626’s plain language applies to any order that directs the release of prisoners or that has the purpose or effect of reducing a prison population. Id. at 26. Judge Dow noted that the specific reference to “crowding” in § 3626(a)(3)(E) serves to remove individual cases (e.g., case-specific hospitalizations) from the scope of this provision. Id. at 26, n. 11.
It strains credulity for plaintiffs to argue, as they did in their reply brief, that their case is not about crowding and a desire for relief that would reduce the prison population. Dkt. 28 at 12. As Judge Dow recognized, Dkt. 38 at 25, 27–28, a central theme of plaintiffs’ complaint is that the Department must reduce the prison population throughout the IDOC system to meaningfully address the risk posed by COVID-19. See, e.g., Dkt. 1 at 16 (section heading, “Reducing the Prison
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Population is the Only Meaningful Means to Prevent the Harm Caused by COVID-19”); id. ¶ 36 (noting “[c]orrectional facilities are inherently congregate environments”); id. ¶ 37 (asserting sanitation problems exacerbated by prisoners congregated together); id. ¶¶ 42–43 (citing IDPH director comments about the congregate nature of prison population); id. ¶¶ 46–52 (citing experts advocating for reduced prison population); id. ¶ 54 (noting federal COVID-19 relief law includes measures to reduce federal prison population); id. ¶ 55 (noting recommendation by congressional committee to reduce prison population); id. ¶¶ 57 64, 67 (noting actions by various state prison systems, county jails, and state supreme courts to reduce prison populations); id. ¶ 75 (discussing activists and lawyers advocating for prison population reduction).
Plaintiffs will be unable to meet § 3626’s requirements at any stage of this lawsuit because, as discussed above and as Judge Dow correctly ruled, Dkt. 38 at 22–23, their requested substantive relief—home furloughs, home detention transfers, and mandatory sentencing credits that lead to releases24—amounts to a request for a prisoner release order that cannot be issued except by a three-judge panel, and then only after a less intrusive order has failed to resolve a crowding-based violation. Plaintiffs cannot satisfy those requirements here.
This lawsuit stands in stark contrast to the Plata and Coleman cases that Judge Dow analyzed. Dkt. 38 at 21–24. Plata and Coleman involved challenges to the sufficiency of medical and mental health services to California prisoners. The three-judge panel issued a prisoner release order only after other forms of relief did not, after 12 years, address the constitutional inadequacy of these services that overcrowding caused. Brown v. Plata, 563 U.S. 493, 514–15 (2011). Notably, the Plata-Coleman panel recently denied a request for additional releases of prisoners because
24 The only other forms of requested relief are (1) the appointment of a special master to assist with processing the prisoner release order, and (2) an award of fees and costs for obtaining the prisoner release order. Dkt. 1 at 47–48.
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California had not been afforded a reasonable amount of time to address any shortcomings in how it addresses the recent COVID-19 crisis. Plata v. Newsom, No. 01 C 1351, Dkt. 361, at 9. The goal in Plata and Coleman was to correct deficiencies in providing necessary services, and eventually a prisoner release order was deemed the only way to address those deficiencies after other efforts failed. Here, plaintiffs do not and cannot allege that defendants caused COVID-19, failed to deliver required services, or failed to comply with a prior order. As a first and last step, they simply want prisoners sent home. Because the PLRA does not permit what plaintiffs seek, this case should be dismissed with prejudice.
B. Plaintiffs’ requested relief is Heck-barred. Plaintiffs’ Eighth Amendment, procedural due process, and ADA claims are also barred by Heck v. Humphrey, 512 U.S. 477 (1994), because it is apparent from their requested relief that plaintiffs are challenging the fact of their current confinement in Illinois prisons, rather than any conditions at plaintiffs’ facilities (where there are no COVID-19 cases among prisoners, except for the one case each at Pontiac and NRC, as noted above). As noted, plaintiffs suggested in supplemental briefing on their motion for a temporary restraining order or preliminary injunction that they were really only seeking a “process” whereby the Department would determine who is eligible to be released, Dkt. 24 at 4. But as Judge Dow recognized, Dkt. 38 at 18, that is not the relief requested in the complaint. Defendants have acknowledged that a complaint truly limited to “process” would not be Heck-barred. Dkt. 34 at 6 (discussing Murphy v. Raoul, 380 F. Supp. 3d 731, 750-52 (N.D. Ill. 2019), and Richmond v. Scibana, 387 F.3d 602 (7th Cir. 2004)). But even as modified in their briefing, plaintiffs’ requested relief remains Heck-barred because plaintiffs are still seeking an order requiring the Department
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to execute the requested furloughs and home detentions resulting in a quantum change in their level of confinement.
In Heck, the Supreme Court drew a line between claims that must proceed under the federal habeas statute and claims that are cognizable under § 1983. Specifically, the Court held that a § 1983 claim that necessarily requires a prisoner to establish the invalidity of his conviction or sentence does not accrue until the prisoner has obtained the favorable termination of that conviction or sentence through federal habeas or similar state remedies. Id. at 486–87. Later decisions refined that doctrine and clarified that any § 1983 action that, if successful, would necessarily imply the invalidity of the fact or duration of a prisoner’s confinement is barred. Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005). Heck thus bars actions challenging the fact or duration of a prisoner’s confinement, but it does not prohibit § 1983 claims challenging the conditions of that confinement. Savory v. Cannon, 947 F.3d 409, 422–34 (7th Cir. 2020) (en banc); see also Muhammad v. Close, 540 U.S. 749, 754–55 (2004). The relevant question for purposes of deciding if a claim must be brought under habeas or § 1983 is whether the prisoner is challenging the fact or duration of his confinement, or merely its conditions.
In Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991), the Seventh Circuit noted that it can sometimes be difficult to determine whether a prisoner is challenging the fact of confinement or its conditions, especially when “the prisoner is seeking not earlier freedom, but transfer from a more to a less restrictive form of custody.” In that circumstance, courts should ask if the prisoner is seeking “a quantum change in the level of custody,” in which case habeas is the proper remedy, or if the prisoner is just seeking transfer to a different program, location, or environment, in which case § 1983 is appropriate. Id. A prisoner seeks a quantum change in custody when, for example,
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he requests “freedom subject to the limited reporting and financial constraints of bond or parole or probation, or the run of the prison in contrast to . . . disciplinary segregation.” Id.
Applying Graham, the First Circuit has held that an action by prisoners challenging their re-incarceration after having been on electronic supervision fell on the habeas side of the line because the difference between incarceration and electronic supervision “can fairly be described as a quantum change in the level of custody.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010). The court noted that, unlike incarcerated prisoners, those on electronic supervision could “live with family members, work daily jobs, attend church, and reside in their own homes.” Id. at 873–74. By contrast, claims challenging a transfer to a different location within the prison system do not seek a quantum change in the level of custody. See Johnson v. Litscher, 260 F.3d 826, 831 (7th Cir. 2001); Pischke v. Litscher, 178 F.3d 497, 499 (7th Cir. 1999); Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995).
In this case, plaintiffs are seeking three types of relief: immediate furloughs for subclasses 1 and 2; immediate transfers to home detention for subclasses 3–5; and immediate awards of 180 days of sentencing credit for subclass 6. Dkt. 1 at 46–47. Each of these requests for relief seeks a quantum change in the level of the relevant class members’ custody.
Plaintiffs’ request for those in subclass 6 to receive 180 days of sentencing credit is barred under a basic Heck analysis because awarding that credit would shorten the length of those prisoners’ sentences. See Edwards v. Balisok, 520 U.S. 641, 646–47 (1997) (claim seeking reinstatement of good-time credits is barred). That claim directly challenges the duration of the prisoners’ confinement.
Plaintiffs’ request for transfers to home detention (subclasses 3–5) is also barred because the differences between incarceration and home detention “can fairly be described as a quantum
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change in the level of custody.” Gonzalez-Fuentes, 607 F.3d at 873. Unlike an incarcerated prisoner, those on home detention can live with family members in their own homes and may leave their homes to, among other things, go to work or school and attend religious services. 730 ILCS 5/5-8A-4(A). Relief for those in subclasses 3–5 is barred because plaintiffs in those groups are seeking freedom subject to limited reporting and constraints. See Graham, 922 F.2d at 381.
The request for furloughs for those in subclasses 1 and 2 is barred because those plaintiffs seek freedom from a prison facility to live “at home” in various locations (one in Florida) with limited oversight and reporting. See Dkt. 1 at 36–39. Medical furlough may be an even greater change in the level of custody than home detention because it does not impose the same limits on the ability to leave the home. Compare 730 ILCS 5/3-11-1 (furloughs) with 730 ILCS 5/5-8A-4 (home detention). Consequently, all three types of relief that plaintiffs request cannot be obtained under § 1983 without violating Heck.
Although plaintiffs claim their rights have been violated because they have been deprived of “reasonably safe living conditions,” Dkt. 1 at 43–46, they fail to seek any relief that would improve those allegedly unsafe conditions. Instead, they seek immediate release from prison, whether through medical furlough, home detention, or a shortening of their sentences. Id. at 46– 47. And while a claim that, if successful, might lead to a speedier release does not necessarily render it Heck-barred, see Wilkinson, 544 U.S. at 82; Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir. 2004), plaintiffs here are directly seeking immediate release from prison. Plaintiffs are therefore challenging the fact of their confinement, rather than any conditions that have been imposed, and such claims are not cognizable under § 1983.
The potential availability of a prisoner release order, entered by a three-judge court after other less intrusive relief has proved unsuccessful, under the PLRA, 18 U.S.C. § 3626(a)(3), does
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not alter the Heck analysis. In Brown v. Plata, 563 U.S. 493, 517–522 (2011), the Supreme Court upheld prisoner release orders based on the finding that overcrowding had caused a shortfall in prison resources that in turn led to unsafe living conditions and ineffective medical care. The release order thus served the purpose of improving prison conditions by reducing the demand for existing services and thereby increasing the proportional availability of those resources. Here, by contrast, plaintiffs are not seeking the release of other prisoners to improve the conditions that they encounter in prison but are instead seeking their own release. Consequently, they are challenging the fact of their confinement and their § 1983 action is barred under Heck.
Because plaintiffs continue to seek a “quantum change in [their] level of custody” (Gonzalez-Fuentes v. Molina, 607 F.3d 866, 873 (1st Cir. 2010)) through court-ordered furloughs or home detentions, their claims remain Heck-barred.
C. Plaintiffs should have to exhaust their administrative remedies. As a final note on procedural bars to plaintiffs’ claims, defendants note that plaintiffs do not allege that any of them filed a grievance over COVID-19 or that the Department’s grievance procedure is unavailable to them. Defendants recognize that prisoners need not plead they have met the exhaustion requirement (an affirmative defense) to bring a claim, see Jones v. Bock, 549 U.S. 199, 216 (2007), but to the extent any part of this case survives, plaintiffs should be required to exhaust their administrative remedies before obtaining any relief before this Court. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) (exhaustion issue should be decided at early stage of lawsuit). The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. Ross v. Blake, 136 S. Ct. 1850, 1854–55 (2016) (citing 42 U.S.C. § 1997e(a)). The unavailability of remedies is the only exception to the
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exhaustion requirement. Id. at 1856–57. Plaintiffs do not suggest that administrative remedies are not available to them. IDOC regulations provide the grievance procedures committed persons must follow. See 20 Ill. Adm. Code § 504.800 et seq. A prisoner may submit an emergency grievance directly to the warden, and the warden may determine that the grievance should be handled on an emergency basis. Id. §§ 504.840(a), (b). Plaintiffs should be required to follow the available grievance procedures before seeking relief here. II. Plaintiffs Do Not Allege Plausible Eighth Amendment, Due Process, or ADA Claims.
Turning to the merits, the Court should dismiss the complaint with prejudice because plaintiffs do not and cannot allege plausible Eighth Amendment, due process, or ADA Claims.
A. Count I fails because plaintiffs do not and cannot allege the Governor or Director recklessly disregarded a recognized risk to plaintiffs’ health or safety.
In Count I, plaintiffs seek to bring an Eighth Amendment claim on behalf of all Illinois prisoners, alleging the Governor and Director are being deliberately indifferent to the risks posed by COVID-19 by failing to take “reasonable” and “appropriate” measures to furlough, transfer, or release prisoners to their homes. Dkt. 1 ¶ 111–114. As Judge Dow correctly ruled, plaintiffs have “no chance” of prevailing on this claim. Dkt. 38 at 38.
The Eighth Amendment prohibits cruel and unusual punishments. U.S. Const. amend. VIII. Among the punishments the amendment forbids is the “unnecessary and wanton” infliction of suffering caused by an official’s deliberate indifference to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). To establish deliberate indifference, prisoners must prove that the prison official both knew of and disregarded an excessive risk to their health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Courts therefore perform a two-step analysis: “first examining whether a plaintiff suffered from an objectively serious medical
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condition, and then determining whether the individual defendant was deliberately indifferent to that condition.” Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016) (en banc).
Although defendants do not dispute their awareness that COVID-19 poses serious risks to prisoners and prison staff, they absolutely dispute that plaintiffs have plausibly alleged that the Governor (even assuming he is a proper defendant) or the Department’s Director was deliberately indifferent to that risk generally, let alone indifferent to any specific risk to any particular plaintiff. Plaintiffs do not allege that any of them has COVID-19 or has been deprived of any necessary care based on any of their particular medical conditions.
Deliberate indifference “describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835; accord Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016) (“evidence of medical negligence is not enough to prove deliberate indifference”). To establish a constitutional violation, the prisoner must show that the response was so deficient that it constituted criminal recklessness. Farmer, 511 U.S. at 839-40; see also Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008) (providing that “negligence or even gross negligence is not enough; the conduct must be reckless in the criminal sense”). The deliberate indifference standard imposes a “high hurdle” and requires a showing “approaching a total unconcern for the prisoner’s welfare.” Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012) (internal quotations and citation omitted).
An official’s response to a risk of harm can defeat an allegation of deliberate indifference even if the risk is not ultimately averted. Farmer, 511 U.S. at 844. Accordingly, a defendant is “not required to take perfect action or even reasonable action.” Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003). This standard ensures that “the mere failure . . . to choose the best course of action does not amount to a constitutional violation.” Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).
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Ignoring these established holdings, plaintiffs predicate their case on a disagreement about what they believe to be the best course of action to protect them and other prisoners from possible exposure to COVID-19. Plaintiffs acknowledge the Department has released at least 300 prisoners (as of April 2, 2020), Dkt. 1 ¶ 83, but they complain the Governor and Director have not acted with more “urgency or decisiveness” to release “substantially” more. Id. ¶¶ 73–74. Plaintiffs plainly base their case on what they believe is reasonable, asserting that defendants have “failed to take reasonable measures” to secure more early releases through various means. Id. ¶ 111. By basing their claim on what they believe to be a reasonable course of conduct, plaintiffs improperly seek to equate their Eighth Amendment claim with malpractice, contrary to the Court’s directive in Estelle, 429 U.S. at 106 (“malpractice does not become a constitutional violation merely because the victim is a prisoner”).
In short, plaintiffs’ focus on the reasonableness of defendants’ actions is legally insufficient to make a plausible showing that defendants were and continue to be subjectively and recklessly indifferent. Although the Court can dismiss plaintiffs’ complaint based solely on the legal defects in plaintiffs’ pleading, the Court can also take judicial notice of the public actions taken by the Governor and the Department of Corrections to combat COVID-19 within the Department of Corrections. Those actions, summarized above, refute any notion that defendants’ responses to COVID-19 may be fairly or plausibly characterized as recklessly indifferent.
B. Plaintiffs cannot sustain a due process claim because they lack a cognizable liberty or property interest.
In Count II, plaintiffs Richard, Watters, and Labosette seek to bring a procedural due process claim on behalf of all prisoners in subclasses 3, 4, and 5 seeking transfers to home
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detention under various state laws. Dkt. 1 ¶ 116.25 They allege defendants are failing to provide a sufficiently efficient system-wide process to evaluate “with all deliberate speed” each individual who may be eligible for transfer to home detention. Id. The Court should dismiss Count II with prejudice because plaintiffs do not and cannot sustain a plausible procedural due process claim for the fundamental reason that plaintiffs lack a cognizable liberty or property interest in being granted home detention.
Courts have consistently held that a statute providing for release from prison to a less restrictive form of custody (such as parole or, here, home detention) does not create a liberty or property interest unless the statute contains “‘explicitly mandatory language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow.” Kentucky Dept. of Corrections v. Thompson, 490 U.S. at 463 (emphasis added); see also Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006) (“It takes mandatory language (and thus an entitlement contingent on facts that could be established at a hearing) to create a liberty or property interest in an opportunity to be released on parole.”). For example, the statute at issue in Grennier provided that the parole board “may parole an inmate serving a life term when he or she has served 20 years.” Wis. Stat. § 304.06(1)(b) (2014) (emphasis added). As the Seventh Circuit observed, prisoners with life sentences were “not even eligible [for parole] until they ha[d] served 20 years, and from that point forward the system [wa]s wholly discretionary.” Grennier, 453 F.3d at 444. The Court thus concluded that it was “straightforward,” given this discretionary scheme, that the plaintiff lacked a liberty or property interest in release on parole. Id.
25 James Money was also a plaintiff in Count II before he was released. 22

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Similarly, the Illinois home detention statute is discretionary, as it provides that a prisoner “may” be placed on home detention at IDOC’s discretion. 730 ILCS 5/5-8A-3. Because the Count II plaintiffs here have no liberty or property interest in home detention, Count II is meritless under Thompson, 490 U.S. at 463 and Grennier, 453 F.3d at 444.
Plaintiffs (as petitioners in their habeas petition) argued that “[i]f the language and structure of the statutes in question create an expectancy of release, they create a liberty interest.” Dkt. 1 at 52 in case 2094 (citing Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001), and Taylor v. Edgar, 52 F. App’x 825, 826–27 (7th Cir. 2002)). Those cases do not help plaintiffs here. Montgomery holds that opportunities for release from prison constitute a liberty interest “only if the state has made a promise. Unilateral expectations and hopes for early release” are insufficient and “[g]ood-time credits are statutory liberty interests once they have been awarded, just as parole is a form of statutory liberty once the prisoner has been released.” 262 F.3d at 644. Taylor similarly holds that it “is well established that in the absence of a state rule creating a specific entitlement, prisoners have no liberty interest” in release to less restrictive forms of custody; thus, the petitioner lacked a liberty interest in release to less restrictive custody where state laws “establish[ed] no more than eligibility for such placement.” 52 F. App’x at 826.
There likewise is no authority for plaintiffs’ argument (advanced as habeas petitioners) that the Illinois legislature “created an enforceable liberty interest in the Home Detention Law” by directing the Department to create a mechanism to evaluate requests for home detention. Dkt. 1 at 53 in case 2094. That argument fails as a matter of law because it is settled that “[p]rocess is not an end in itself”; thus, “[t]he State may choose to require procedures for reasons other than protection against deprivation of substantive rights, . . . but in making that choice the State does not create an independent substantive right.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (that
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prison was required by state rules to conduct hearing before transferring prisoners out of state did not create protected liberty interest); see also Sung Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828, 832 (7th Cir. 2012) (“The Supreme Court has emphasized that the federal Constitution’s due process clause does not protect an interest in other process’’; plaintiff’s claim failed because “she is not asserting an interest in continuing her graduate education. Instead, she asserts an interest in her allegedly contractually-guaranteed rights to university process prior to being dismissed[.]”).
Because plaintiffs have no liberty or property interest in home furloughs, home detentions, or sentence credits, Count II fails as a matter of law and should be dismissed with prejudice.26
Finally, although Count II appears to be limited to procedural due process, plaintiffs insert the word “substantive” in paragraph 116, alleging that, as a result of a purported failure to establish process, plaintiffs are forced to be exposed to the threat of serious illness or death, in violation of procedural and “substantive” due process. Dkt. 1 ¶ 116. Any claim based on substantive due process fails for the same reason discussed above. In addition, the Supreme Court and the Seventh Circuit have cautioned that the scope of substantive due process is very limited. County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998); Belcher v. Norton, 497 F.3d 742, 753 (7th Cir 2007). “Where a particular Amendment provides an explicit source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Lewis, 523 U.S. at 842;
26 To the extent plaintiffs’ request for discretionary good conduct credit could be construed as alleging a procedural due process claim, it fails for the same reasons: petitioners have no liberty or property interest in discretionary good conduct credit. See Hadley v. Holmes, 341 F.3d 661, 665 (7th Cir. 2003) (no protected interest in discretionary good conduct credit under 730 ILCS 5/3-6-3(a)(3), and “the [S]tate need not afford [petitioner] due process before declining to award him the credit”); 20 Ill. Admin. Code 107.210 (regulations for awarding discretionary good conduct credit under 730 ILCS 5/3-6-3(a)(3)).
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see also United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997) (noting that “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process”) (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). Thus, when, as here, the Eighth Amendment provides the standard for evaluating plaintiffs’ substantive claims, a court should employ that standard, not the Fourteenth Amendment. To the extent plaintiffs are attempting to use substantive due process to go beyond the protections offered by the Eighth Amendment, that effort must be rejected as contrary to Supreme Court and Seventh Circuit authority.
C. Plaintiffs’ ADA claim fails because plaintiffs do not plausibly allege they are being denied services because of their alleged disabilities.
In Count III, plaintiffs Richard, Gerald Reed, Green, Labosette, and Tate seek to bring a claim for discrimination in violation of Title II of the Americans with Disabilities Act on behalf of individuals in proposed subclass 1—those seeking medical furloughs under 730 ILCS 5/3-11-1 because of their underlying medical conditions. Dkt. 1 ¶¶ 120–25.27
Title II of the ADA prohibits public entities from discriminating against qualified individuals with disabilities by depriving them of opportunity to participate in the services, programs, or activities of the public entity because of their disabilities. 42 U.S.C. § 12132. Title II of the ADA applies to prisons, see Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998), and prisoners may sue state officials in their official capacity for prospective injunctive relief under Title II. Brueggeman ex rel. Brueggeman v. Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003). But to assert a valid claim under Title II, plaintiffs must have a “qualifying disability” and
27 James Money and Carl Reed were included in Count III before they were released. 25

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must show a denial of benefits of services, programs, or activities through discrimination “by reason of” their disability. Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 937 (N.D. Ind. 2009) (quoting Frame v. City of Arlington, 575 F.3d 432, 435 (5th Cir. 2009)); see also Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996).
A plaintiff “may establish discrimination by presenting evidence that the defendant intentionally acted on the basis of the disability, the defendant refused to provide a reasonable modification, or the defendant’s denial of benefits disproportionately impacts disabled people.” Culvahouse, 679 F. Supp. 2d at 937 (relying on Washington v. Ind. High Sch. Athletic Assn., Inc., 181 F.3d 840, 847 (7th Cir. 1999)).
Plaintiffs do not allege intentional discrimination because of their medical conditions. They instead base their ADA claim on conclusory assertions that defendants are placing them at disproportionate risk because of their disability, Dkt. 1 ¶ 123, and are failing to provide them with reasonable accommodations by not allowing them to quarantine at their homes, id. ¶ 124. These allegations do not and cannot sustain a plausible ADA claim.
1. Plaintiffs’ disparate impact theory fails. Plaintiffs provide no basis to establish a plausible claim that defendants’ current practices related to releases and transfers disparately affect them. Although “a claim for disparate impact doesn’t require proof of intentional discrimination,” J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1298 (10th Cir. 2016) (internal quotation marks and citations omitted), to “prove a case of disparate impact discrimination, the plaintiff must show that a specific policy caused a significant disparate effect on a protected group.” Id. (internal quotation marks and citation omitted). “This is generally shown by statistical evidence involving the appropriate comparables necessary to create a reasonable inference that any disparate effect
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identified was caused by the challenged policy and not other causal factors.” Id. (internal quotation marks and citation omitted). “Moreover, a disparate impact claim must allege a pattern or practice of discrimination, not merely an isolated instance of it.” Id. (citation omitted).
Plaintiffs fail to allege any appropriate comparables to create a plausible inference that defendants are engaged in any actions that have a disparate effect on them. Instead, plaintiffs rely entirely on conclusory claims about the unprecedented impact of COVID-19. In doing so, plaintiffs admit that any disparate effect is caused by COVID-19, not defendants’ policies. As Judge Dow pointed out when denying plaintiffs’ motion for emergency relief, there is no “basis for concluding that the discretionary decisions on whom to release (and not to release) have a disproportionate impact on disabled inmates, especially when one considers the large number of non-disabled inmates who also may have strong claims to priority for release on account of their susceptibility to COVID-19, such as elderly inmates.” Dkt. 38 at 40. Plaintiffs’ bald assertions are facially insufficient to establish a plausible disparate impact claim.
2. Plaintiffs’ reasonable accommodation theory fails. Plaintiffs also provide no basis to sustain a plausible claim that defendants have failed to give them required accommodations. The ADA requires state and local entities to make “reasonable modifications” to policies, rules, and practices so that people with disabilities can participate in public programs and services. 42 U.S.C. § 12131(2). Whether a modification is reasonable depends on the specific circumstances and modifications sought. To decide what constitutes a “reasonable modification” for a prisoner, courts weigh the needs of prisoners with disabilities against the structural, financial, and administrative concerns of the prison. In particular, courts consider (1) whether the modification will “fundamentally alter” a program or activity, (2) the cost of the modification, and (3) the burden
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the modification would have on administration of the prison. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), 35.164. Courts also may consider concerns relating to prison management, prisoner rehabilitation, and safety. See, e.g., Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (prison could present evidence that providing an interpreter for a deaf prisoner at disciplinary hearings created safety and security concerns); Love, 103 F.3d at 561 (prison could justify its refusal to make reasonable accommodations because of the overall demands of running a prison).
Furthermore, “[i]t is the employer’s prerogative to choose a reasonable accommodation; an employer is not required to provide the particular accommodation that an employee requests.” See Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir. 2000) (noting the established rule that “an employer is obligated to provide a qualified individual with a reasonable accommodation, not the accommodation he would prefer.”). Likewise, a “failure to immediately provide [plaintiff] with the reasonable accommodation that she sought does not constitute refusal to provide a reasonable accommodation. . . .” Ungerleider v. Fleet Mortg. Grp. of Fleet Bank, 329 F. Supp. 2d 343, 355 (D. Conn. 2004).
Count III is limited to plaintiffs in proposed subclass 1 seeking a furlough under 730 ILCS 5/3-11-1 to allow them to quarantine at their homes. Dkt. 1 ¶ 124. This statute gives the Department discretion to release prisoners on a furlough for various reasons, including to obtain medical services that are not otherwise available. 730 ILCS 5/3-11-1(a)(2). The Governor’s April 6, 2020 Executive Order removed the “not otherwise available” requirement and allows the Director broader discretion to grant furloughs.28 But even with that change, which post-dated the complaint,
28 Pritzker, Governor J.B., Executive Order 2020-21 (April 6, 2020), https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-21.pdf.
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plaintiffs make no allegations suggesting that any one of them, let alone others in proposed subclass 1, qualify for a furlough under the statute even as modified by the Executive Order. To the contrary, plaintiffs admit they are seeking furloughs—not to obtain medical, psychiatric or psychological services—but so they can leave prison to quarantine at their homes. Dkt. 1 ¶¶ 93– 100, 124. The bottom line remains: no plaintiff alleges any instance of being refused a reasonable accommodation.
As noted above, since filing their complaint, plaintiffs have tried to change course by claiming they are merely seeking “a process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly.” Dkt. 24 at 6. Leaving aside that defendants are providing that very process, plaintiffs admit, as Judge Dow recognized, that these decisions are, and must be, made on an individualized and discretionary basis. Dkt. 24 at 5; Dkt. 38 at 40. This admission necessarily defeats any ADA claim based on alleged failure to give plaintiffs in subclass 1 reasonable accommodations.
Judge Dow refused to grant plaintiffs’ requested relief based on Count III, concluding that “Plaintiffs do not have a reasonable likelihood of success under any of the three ways of establishing an ADA discrimination claim.” Dkt. 38 at 41. This Court should reach the same conclusion and dismiss plaintiffs’ ADA claim in Count III with prejudice. III. Plaintiffs’ Proposed Relief Violates Federalism, Comity, and Abstention Principles.
Given the extraordinary nature of the injunctive relief that plaintiffs seek, the Court should abstain pursuant to Rizzo v. Goode, 423 U.S. 362 (1976), where the Supreme Court instructed that to obtain injunctive relief on a matter traditionally reserved to the discretion of a state or local government agency, a plaintiff must overcome the steep hurdle set by “the well-established rule
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that the Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs.’” Id. at 378–79 (quotations omitted). In such cases, federal courts are to issue injunctions “sparingly, and only in a clear and plain case.” Id. at 378. This strong preference against intrusive injunctive relief is primarily founded on “delicate issues of federal state relationships” (Id. at 380 (quotation omitted)), which are premised on “the principles of equity, comity, and federalism.” Id. at 379 (quotation omitted).
The Seventh Circuit recently affirmed the continuing relevance of Rizzo as an extension of the Younger abstention doctrine, which “limit[s] federal court review of local executive actions.” Courthouse News Serv. v. Brown, 908 F.3d 1063, 1071 (7th Cir. 2018). The plaintiffs in Courthouse News sought a preliminary injunction compelling the Cook County Clerk to immediately make all complaints filed available to the press, rather than waiting for a period until the complaints were processed. The Seventh Circuit rejected the injunction, observing that “federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’” Id. at 1073 (quoting Rizzo, 423 U.S. at 378).
Courts in this circuit have relied on Rizzo when declining to interfere in decisions affecting the administration of state prisons. As Judge Durkin recently explained, “the courts do not generally second-guess inmate housing decisions” because it is “not ‘the task of federal courts to oversee discretionary housing decisions made by state prison officials.’” Boykin v. Fischer, No. 16-CV-50160, 2019 WL 6117580, at *14 (N.D. Ill. Nov. 18, 2019) (quoting Del Rio v. Schwarzenegger, No. 09-CV-0214, 2010 WL 347888, at *5 (C.D. Cal. Jan. 20, 2010)). “Where a plaintiff requests an award of remedial relief that would require a federal court to interfere with the administration of a state prison, ‘appropriate consideration must be given to principles of
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federalism in determining the availability and scope of [such] relief.’” Id. (quoting Rizzo, 423 U.S. at 379); see also Cornille v. Lashbrook, No. 19-CV-002, 2019 WL 366562, at *6 (S.D. Ill. Jan. 30, 2019) (denying TRO seeking a transfer to another prison); Conway v. Wagnor, No. 19-CV-036, 2019 WL 183903, at *1–2 (S.D. Ill. Jan. 14, 2019) (denying TRO seeking immediate medical treatment with a specialist and a transfer); Boykin v. Dixon Mental Health Servs., No. 16-CV50160, 2018 WL 8806095, at *3 (N.D. Ill. Oct. 15, 2018) (“the courts are not engaged in the business of supervising inmate housing decisions”).
The mandatory injunctive relief plaintiffs seek in this case is far more intrusive than in any of the cases cited above. Rather than seeking a transfer for a single prisoner, plaintiffs seek to compel the Department to release thousands of prisoners immediately, with no consideration of the Department’s administrative, safety, and security concerns for the prisoners themselves and the public at large. The Department is best positioned to manage its own prison system and determine who should receive a sentence credit, and who may safely be released on home detention or furlough and who may not. In these circumstances, the Court should “afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” Rowe v. Finnan, No. 11-CV-524, 2013 WL 74609, at *2 (S.D. Ind. Jan. 4, 2013) (quoting Sandin v. Conner, 515 U.S. 472, 483 (1995)). Judge Dow recognized this in denying plaintiffs’ requested “preliminary” relief (the same as the requested ultimate relief), noting that “the judiciary is illequipped to manage decisions about how best to manage any inmate population—let alone a statewide population of tens of thousands of people scattered across more than a dozen facilities.” Dkt. 38 at 34.
The considerations of federalism and comity weigh especially heavily when considering the administration of a state prison system, where the Supreme Court has noted that “[i]t is difficult
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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. . . . Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the correction of those problems.” Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973); accord Turner v. Safley, 482 U.S. 78, 85 (1987) (“where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities”’); Meachum v. Fano, 427 U.S. 215, 229 (1976) (“Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.”). Courts not only are “ill-equipped” to deal with the “complex and intractable” problems of prisons, Rhodes v. Chapman, 452 U.S. 337, 351 n.16 (1981), but “respect for federalism and comity . . . means that courts must approach the entire enterprise of federal judicial intrusion into the core activities of the state cautiously and with humility.” Dkt. 38 at 42.
Although plaintiffs may insist, as they did before, that they “do not seek to place IDOC under the supervision of this Court,” Dkt. 24 at 12, Judge Dow correctly recognized that their requested relief would “place the Court squarely in the middle of refereeing whose plan can best ensure release of inmates and on what conditions.” Dkt. 38 at 35. This Court should decline that invitation and dismiss this action.
CONCLUSION Defendants have moved quickly and aggressively to take concrete actions to protect the health and safety of prisoners, prison staff, and the public from the risks posed by COVID-19. Plaintiffs no doubt have legitimate concerns, but they do not and cannot provide any legal basis to allow the Court to compel defendants to furlough or otherwise release thousands of prisoners based on the possible risk of contracting COVID-19. Plaintiffs do not and cannot state a plausible legal
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claim, their requested relief is against the public interest, and it is prohibited by the PLRA and

binding case law. For all of these reasons, defendants respectfully request the Court to grant their

motion to dismiss this action with prejudice.

Dated: April 29, 2020

Respectfully Submitted,

KWAME RAOUL Attorney General of Illinois

/s/ R. Douglas Rees R. DOUGLAS REES

Nicholas S. Staley Colleen Shannon Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

Deputy Attorney General, Civil Litigation Office of the Illinois Attorney General 100 West Randolph Street, 13th Floor Chicago, Illinois 60601 (312) 814-3498 drees@atg.state.il.us

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 Case: 1:20-cv-02093 Document #: 48 Filed: 05/20/20 Page 1 of 55 PageID #:704

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

WILLIAM RICHARD, GERALD REED, TEWKUNZI GREEN, DANNY LABOSETTE, CARL “TAY TAY” TATE, BRITTANY HALL, KIMBERLY CARTER, LORI THOMPSON, KIMBERLY DUNTEMAN, LYNWOOD ELLIS, DANNY WICKER, ADAM GRUNIN, ANDREW HINES, ANTWAN FREEMAN, CARLTON WHITE, SHARDON GAY, ERIC VALDEZ, ANTHONY BUCHANAN, WILLIE HOLLOWAY, TIM WALTON, ADRIAN TORRES, and LUCIOUS ROGERS, on behalf of themselves and all similarly situated individuals,
Plaintiffs,
v.
J.B. PRITZKER, in his official capacity as GOVERNOR OF THE STATE OF ILLINOIS, and ROB JEFFREYS, in his official capacities as DIRECTOR OF THE DEPARTMENT OF CORRECTIONS,
Defendants.

) ) ) ) ) ) ) Case No. 1:20-cv-02093 ) ) ) Hon. Steven C. Seeger ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

FIRST AMENDED CLASS ACTION COMPLAINT Plaintiffs William Richard, Gerald Reed, Tewkunzi Green, Danny Labosette, Carl “Tay Tay” Tate, Brittany Hall, Kimberly Carter, Lori Thompson, Kimberly Dunteman, Lynwood Ellis, Danny Wicker, Adam Grunin, Andrew Hines, Antwan Freeman, Carlton White, Shardon Gay, Eric Valdez, Anthony Buchanan, Willie Holloway, Tim Walton, Adrian Torres, and Lucious Rogers, individually and on behalf of a class of similarly situated individuals, by their undersigned attorneys, file this First Amended Complaint for declaratory and injunctive relief

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against Defendants, Governor of the State of Illinois J.B Pritzker and Illinois Department of Corrections Director Rob Jeffreys, and allege as follows:
INTRODUCTION 1. Plaintiffs are medically vulnerable to the novel coronavirus due to age and/or underlying medical conditions. They face a substantially greater risk of more severe illness and outcomes if they contract the virus, including requiring ICU care and ventilation, and death. Despite this greater risk, the Governor and the Illinois Department of Corrections (“IDOC”) have failed to take the urgent action needed to protect them. 2. COVID-19 continues to spread inside the walls of Illinois’s prisons, and throughout prison communities as well. Plaintiffs reside among nearly 37,000 people incarcerated in Illinois, living in close quarters where all aspects of daily life, including showers, food service, and health care take place. Hundreds of staff members come and go from each of their facilities three times a day to prepare their meals, distribute their medications, escort them for any movement, and more. Prisons pose a particular risk of spreading the virus, with catastrophic consequences to the medically vulnerable prisoners within each facility who have no ability to follow health and safety standards. 3. To understand the devastating impact that COVID-19 is having and will continue to have on the Illinois prison system and the communities that surround those prisons, one need look no further than Joliet, Illinois. On March 25, 2020, the IDOC announced the first confirmed case of COVID-19 at Stateville Correctional Center. Just five days later, the number of coronavirus cases had swelled and St. Joseph Hospital was “overwhelmed” and “maxed out” by Stateville prisoners. The hospital’s medical director characterized the situation as “a disaster.”
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4. Since then, at least 154 prisoners from Stateville have contracted the virus and 12 prisoners have died, the majority of whom, on information and belief, were medically vulnerable. In addition to Stateville, the virus has now spread to 13 more prisons.
5. Defendants have an obligation to keep Plaintiffs in safe custody, particularly during a pandemic that particularly places them at greater risk of harm. Yet, they have failed to protect those most vulnerable to this virus. In fact, the State has retreated from statements made earlier in the crisis, failing to live up to its initial promise to protect this population. The State’s slow, inconsistent, and ineffective responses evidences deliberate indifference to a serious risk to Plaintiffs’ health and life. Without intervention from this Court, Plaintiffs and the class they represent face a real risk that they are going to die unnecessarily.
JURISDICTION AND VENUE 6. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a). This Court has authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202. 7. 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 judicial district.
PARTIES 8. Plaintiff William Richard is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Dixon Correctional Center in Dixon, Illinois. 9. Plaintiff Gerald Reed is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at the Northern Reception Center in Crest Hill, Illinois.
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10. Plaintiff Tewkunzi Green is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Logan Correctional Center in Lincoln, Illinois.
11. Plaintiff Danny Labosette is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Robinson Correctional Center in Robinson, Illinois.
12. Plaintiff Carl “Tay Tay” Tate is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Danville Correctional Center in Danville, Illinois.
13. Plaintiff Brittany Hill is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Logan Correctional Center in Lincoln, Illinois.
14. Plaintiff Kimberly Carter is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Logan Correctional Center in Lincoln, Illinois.
15. Plaintiff Lori Thompson is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Logan Correctional Center in Lincoln, Illinois.
16. Plaintiff Kimberly Dunteman is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Logan Correctional Center in Lincoln, Illinois.
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17. Plaintiff Lynwood Ellis is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Stateville Correctional Center in Crest Hill, Illinois.
18. Plaintiff Danny Wicker is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at the Northern Reception and Classification Center (NRC) in Crest Hill, Illinois.
19. Plaintiff Adam Grunin is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at the Northern Reception and Classification Center (NRC) in Crest Hill, Illinois.
20. Plaintiff Andrew Hines is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Jacksonville Correctional Center in Jacksonville, Illinois.
21. Plaintiff Antwan Freeman is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Jacksonville Correctional Center in Jacksonville, Illinois.
22. Plaintiff Carlton White is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Jacksonville Correctional Center in Jacksonville, Illinois.
23. Plaintiff Shardon Gay is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Danville Correctional Center in Danville, Illinois.
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24. Plaintiff Eric Valdez is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Vienna Correctional Center in Vienna, Illinois.
25. Plaintiff Anthony Buchanan is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Vienna Correctional Center in Vienna, Illinois.
26. Plaintiff Willie Holloway is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Pinckneyville Correctional Center in Pinckneyville, Illinois.
27. Plaintiff Tim Walton is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Graham Reception and Classification Center in Hillsboro, Illinois.
28. Plaintiff Adrian Torres is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at Sheridan Correctional Center in Sheridan, Illinois.
29. Plaintiff Lucious Rogers is, and has been at all relevant times, an Illinois Department of Corrections prisoner. He is currently confined at the Medium Security Unit of Menard Correctional Center in Chester, Illinois.
30. Defendant Rob Jeffreys is the Director of the Illinois Department of Corrections (“IDOC”). As such, he was acting under color of law. At all relevant times to the events at issue in this case, Defendant Jeffreys maintained administrative and supervisory authority over the operations of all prisons in Illinois. At all relevant times, Defendant Jeffreys promulgated rules,
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regulations, policies, and procedures of the IDOC. Defendant Jeffreys is sued in his official capacity.
31. Defendant Governor of Illinois J.B. Pritzker has, pursuant to the Illinois Constitution, Article V, Section 8, “the supreme executive power, and shall be responsible for the faithful executive of the laws.” Governor Pritzker has the ultimate authority for ensuring that all executive agencies, including the Department of Corrections, function in compliance with state and federal law.
FACTUAL ALLEGATIONS I. The COVID-19 Outbreak Has Created a National and Global Health Emergency
32. We are living in the midst of an extreme, unprecedented worldwide health emergency caused by the rapid spread of the coronavirus, COVID-19. The World Health Organization has declared COVID-19 to be a global pandemic. On March 9, 2020, Illinois Governor J.B. Pritzker issued a proclamation declaring a disaster in the State of Illinois. On March 13, 2020, President Trump declared a national emergency.
33. The number of known COVID-19 infections is increasing daily. As of April 1, 2020, there were more than 823,000 reported COVID-19 cases throughout the world and more than 40,500 people had died as a result of the virus.1 As of May 19, 2020, those numbers have increased to over 4.7 million confirmed cases and over 316,000 deaths.2 In the United States alone, on April 1, 2020 there were over 186,000 confirmed cases and over 3,600 deaths.3 As of
1 Coronavirus Disease 2019 (COVID-19) Situation Report – 72, World Health Organization (Apr. 1, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200401-sitrep-72-covid19.pdf?sfvrsn=3dd8971b_2 2 Coronavirus Disease (COVID-19) Situation Report - 120, World Health Organization (May 19, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200519-covid-19-sitrep120.pdf?sfvrsn=515cabfb_2. 3 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-
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May 19, 2020, the United States numbers have increased to over 1.5 million confirmed cases and over 90,000 deaths.4 In Illinois, on April 1, 2020, there were over 6,900 confirmed cases and 141 deaths.5 As of May 19, 2020, the Illinois numbers have increased to over 98,000 confirmed cases and over 4,300 deaths.6 The number of COVID-19 cases in the United States is expected to grow exponentially. The Centers for Disease Control and Prevention (“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.
34. Governor Pritzker himself has admitted that Illinois is unlikely to see a decrease in new cases anytime soon. Recent projections from the Illinois Department of Public Health indicate that Illinois has not yet reached its peak.
35. There is no known vaccine or cure for COVID-19. 36. Common symptoms of COVID-19 include fever, cough, and shortness of breath. Other symptoms include congestion, sneezing, fatigue, or diarrhea. Many individuals who become infected with COVID-19 may have mild or moderate symptoms; some may experience no symptoms at all. Other patients may experience severe symptoms requiring intensive medical intervention. However, even with hospitalization and intensive treatment, thousands of individuals have died as a result of this infection. 37. Regardless of the type of severity of symptoms, all infected persons are contagious and can rapidly transmit the virus from person to person without proper public health
us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-inus.html (last visited Apr. 1, 2020). 4 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 (last visited May 20, 2020). 5 Coronavirus Disease 2019 (COVID-19), Ill. Dept. of Pub. Health, http://www.dph.illinois.gov/topicsservices/diseases-and-conditions/diseases-a-z-list/coronavirus (last visited Apr. 1, 2020). 6 Coronavirus Disease 2019 (COVID-19), Ill. Dept. of Pub. Health, https://www.dph.illinois.gov/covid19/covid19-statistics (last visited May 20, 2020).
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interventions. The virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.
38. Controlling the spread of COVID-19 is made even more difficult because of the prominence of asymptomatic transmission—people who are contagious but who exhibit no symptoms, rendering ineffective any screening tools dependent on identifying disease symptoms.
II. COVID-19 Poses a Grave Risk of Serious Illness or Death to Those Who Are Elderly or Have Underlying Medical Conditions
39. People over the age of fifty-five face greater chances of serious illness or death from COVID-19.
40. People of any age who suffer from certain underlying medical conditions are also at elevated risk, including 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; and people who have had or are at risk of stroke. At least one recent report indicated 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.7
41. For these vulnerable populations, the symptoms of COVID-19, particularly shortness of breath, can be severe, and complications can manifest at an alarming pace. Most people in higher risk categories who develop serious illness will need advanced support. This
7 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-chinajoint-mission-on-covid-19-final-report.pdf
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level of supportive care requires highly expensive and specialized equipment, including
ventilators, that are in limited supply.
42. The CDC’s Morbidity and Mortality Reports gives detailed data and statistical
analysis, summarized here:
The percentage of COVID-19 patients with at least one underlying health condition or risk factor was higher among those requiring intensive care unit (ICU) admission (358 of 457, 78%) and those requiring hospitalization without ICU admission (732 of 1,037, 71%) than that among those who were not hospitalized (1,388 of 5,143, 27%). The most commonly reported conditions were diabetes mellitus, chronic lung disease, and cardiovascular disease. These preliminary findings suggest that in the United States, persons with underlying health conditions or other recognized risk factors for severe outcomes from respiratory infections appear to be at a higher risk for severe disease from COVID-19 than are persons without these conditions . . . These results are consistent with findings from China and Italy, which suggest that patients with underlying health conditions and risk factors, including, but not limited to, diabetes mellitus, hypertension, COPD, coronary artery disease, cerebrovascular disease, chronic renal disease, and smoking, might be at higher risk for severe disease or death from COVID-19 (3,4).8
43. In New York, 4,089 of the 4,758 deaths due to COVID-19 between March 14 and
April 7, 2020, were of patients with at least one other chronic disease, including hypertension in
55% of deaths and diabetes which was diagnosed in 1,755 deaths (about 37% of the cases).9
44. Those medically vulnerable individuals who survive COVID-19 nevertheless face
a greater risk of long-term 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. This damage is extensive and
severe, including permanent 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.
8 CDC COVID-19 Response Team: Morbidity and Mortality Weekly Report, “Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020.” 9 USA Today, New data on New York coronavirus deaths: Most had these underlying illnesses; 61% were men https://www.usatoday.com/story/news/health/2020/04/07/new-york-coronavirus-deaths-data-showsmost-had-underlying-illnesses/2960151001/ (Apr. 7, 2020)
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III. Public Health and Safety Measures to Protect Against COVID-19 45. The only way to prevent complications and enormous risk to medically vulnerable
people is to prevent them from becoming infected. The CDC and other public health agencies have universally prescribed widespread testing, social distancing, rigorous hygiene and sanitation, personal protective equipment, and quarantining as the only ways to meaningfully mitigate the spread of this virus.
46. The CDC has issued a guidance that gatherings of more than 10 people must not occur. People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as 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.
47. A “stay at home” executive order for all residents, which became effective starting March 21, 2020, remains in effect statewide at least through May 29, 2020. All non-essential businesses and operations have shut down. People are allowed to leave their homes only for essential activities. Any gathering larger than 10 people is prohibited, and people are required by law to stay at least six feet away from others, or if they cannot, to wear a mask. Governor Pritzker has admitted that these steps are necessary “to avoid the loss of potentially tens of thousands of lives” at the strong recommendation of “some of the best medical experts, epidemiologists, mathematicians, and modelers” available.
48. Medical and public health experts agree that the critical steps to control the spread of the virus include widespread testing for those with signs or symptoms of COVID-19, and those who have been exposed to a person with COVID-19; unrestricted access to soap and hand
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sanitizer; unrestricted access to EPA-registered disinfectant and/or bleach mixture with at least one-third bleach per gallon of water, as well as paper towels or clean cloths to permit frequent sanitation of surfaces; sanitation of common-use surfaces between each use; personal protective equipment (PPE), including masks and gloves; and social distancing.
49. On May 5, 2020, a five-phase plan was announced to inform the public how the State of Illinois might begin to loosen restrictions on the stay-at-home order. Governor Pritzker has made clear, however, that the state of the emergency throughout Illinois still requires social distancing, even at businesses that are permitted to reopen. The five-phase plan further establishes that wider reopenings cannot begin until the rate of infection among those tested, the number of patients admitted to the hospital, and the number of patients needing ICU is stable or declining. There is currently no area in the State of Illinois that meets this threshold.
IV. Class Members Face Increased Risk of Harm Due to Their Placement in IDOC Facilities Where Public Health and Safety Measures Cannot be Effectively Implemented
50. None of the imperative measures for mitigating the spread of COVID-19 are available for Class Members and those who must interact with them. Correctional facilities are inherently congregate environments, where large groups of people live, eat, and sleep in close contact with one another. It is difficult if not impossible to achieve social distancing standards in these settings.10 Therefore infectious diseases, particularly airborne diseases like COVID-19, are more likely to spread rapidly between individuals in correctional facilities.11
51. COVID-19 is a particularly contagious disease because the virus can survive for up to three hours in the air, four hours on copper, up to twenty-four hours on cardboard, and up to
10 Greifinger Aff., Exhibit 1; Haney Decl., Exhibit 3. 11 Beyrer Aff., Exhibit 4; Meyer Decl., Exhibit 2.
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two to three days on plastic and stainless steel. A study of an early cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect transmission resulting from infected people contaminating common surfaces—in the study, it was a communal mall bathroom. These unique characteristics of COVID-19 make it particularly dangerous in prisons where many of the common surfaces are plastic, plexiglass, and steel, and where large numbers of people share communal bathrooms and other communal spaces.
52. The risk of contracting an infectious disease like COVID-19 is also higher in correctional facilities because the facilities are not sanitary environments. People share toilets, sinks, and showers, and have limited access to soap, hand sanitizer, hot water, and other necessary hygiene items. Surfaces are infrequently washed, if at all, and cleaning supplies and towels are in short supply.12 As such, people, including Class Members, who are medically vulnerable are congregated together in a setting where fighting the spread of COVID-19 is nearly impossible.
53. Like prior outbreaks in correctional facilities, such as tuberculosis, influenza, and MRSA, COVID-19 has also readily spread in prisons, in part because people cannot engage in proper hygiene and sanitation, wear necessary PPE, and/or adequately distance themselves from infected residents or staff. 13
54. Dr. Craig Haney, a correctional health expert, explains that 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).”14
12 Greifinger Aff., Exhibit 1; Meyer Decl., Exhibit 2; Beyrer Decl., Exhibit 4; Haney Decl., Exhibit 3. 13 Beyrer Decl., Exhibit 4. 14 Haney Aff., Exhibit 3.
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55. Additionally, many correctional facilities lack an adequate medical care infrastructure to address the spread of infectious disease, like COVID-19, and treat high-risk people in custody.15 Prison health units are not equipped with sufficient emergency medical equipment, such as oxygen tanks, nasal cannulae, and oxygen face masks, to respond to an outbreak of patients with respiratory distress. For these reasons, among others, experts have warned that rampant transmission of COVID-19 in correctional facilities is likely to result in a disproportionately high mortality rate. Prisons and jails rely on outside community hospitals to provide more advanced and intensive medical care, but many of these community hospitals are already at or near capacity, due in part to COVID-19 patients not in prison.16
56. Prisons are not closed environments. By necessity, members of the free community, including correctional officers, social workers, medical personnel, and many others must enter and leave IDOC prisons on a daily basis. Correctional staff arrive and leave each facility three times a day in large numbers, and there is little to no ability to adequately screen staff for new, asymptomatic infection. When the COVID-19 virus occurs and spreads within an IDOC prison, 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.17
57. IDPH Director Dr. Ngozi Ezike has expressly acknowledged the present danger facing prisons throughout the State of Illinois, predicting that once the virus enters an IDOC prison it would spread quickly with a high rate of infection.
15 Greifinger Aff., Exhibit 1; Meyer Decl., Exhibit 2. 16 Meyer Decl., Exhibit 2. 17 Greifinger Aff., Exhibit 1.
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58. On March 30, 2020, following the first death of a COVID-19 patient at Stateville,
Dr. Ezike again acknowledged the heightened risk posed by correctional settings and the inability
to conform them to public health standards:
Congregate 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. Those who are incarcerated obviously live and work and eat and study and recreate all within that same environment, heightening the potential for COVID-19 to spread really quickly once it’s introduced. 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. I know our partners at the Department of Corrections are working innovatively to try to create the best situations for these, for these facilities. But some facilities and correctional centers do not have enough individual cells, and so we are considering isolating multiple laboratory confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group.18
59. The Governor has likewise acknowledged in multiple executive orders both that
Plaintiffs and the putative class are at higher risk of experiencing more severe outcomes from
COVID-19, and that Plaintiffs and the putative class are especially vulnerable to contracting and
spreading COVID-19. Nonetheless, neither the Governor nor the IDOC Director have in fact
taken any action to protect the medically vulnerable Plaintiffs or the putative class.
60. As Plaintiffs’ experiences described below demonstrate, health and safety
measures imperative to protecting against COVID-19 have not been implemented in IDOC
prisons.
61. Illinois prisons are an outlier in the country. All of Illinois’s maximum security
prisons were built before 1930. IDOC medium security prisons were mostly built during the
1980s. Illinois’s newest prison is Lawrence, which opened in 2001. The older prisons, and
18 Daily COVID-19 Press Briefings, Ill. Dept. of Pub. Health, http://www.dph.illinois.gov/topicsservices/diseases-and-conditions/diseases-a-z-list/coronavirus/media-publications/daily-pressbriefings?page=6.
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particularly the maximum security prisons, were built at a time when corrections operated very differently. They are labor intensive (for example, cell doors cannot be remotely controlled— each has to be opened individually by a guard). They were designed with large congregate spaces—expansive dining halls designed to hold hundreds of prisoners, large gyms, and recreation spaces designed to be used by several hundreds of prisoners at a time.
62. Many of Illinois’s nine minimum security prisons include large dormitory housing. The medium and maximum security prisons house prisoners in cells on galleries, often housing several hundred people on each gallery, in two-person cells, with a shared dayroom and showers. The vast majority of cells are occupied by two (or more) people, even in the solitary confinement units.
63. Air circulation in these IDOC prisons is also antiquated. Nearly all were built without modern heating and air conditioning. The oldest prisons rely on systems designed to pull air from the galleries into the cells (positive air pressure). These systems actually increase the spread of aerosols and droplets (including aerosolized and droplet forms of COVID-19) as they affirmatively press the air from common spaces into the cells of Class Members and other prisoners. In the summer, because the prisons are not air conditioned, large industrial fans are often placed on a gallery, blowing air around the unit, further enhancing the positive air pressure that flows into cells.
64. When people are moved out of their cell houses, they are moved in large groups (called lines). This includes movement to attend law library, recreation, and dining hall, and to receive medication. Since COVID-19, many prisons are now delivering meals to housing units, which requires close personal contact with guards who deliver the trays, moving from cell to cell, with a high risk of cross contamination.
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65. Surfaces and objects throughout IDOC facilities are used by numerous people, both prisoners and staff, throughout each day, including for example phones, tables, shower fixtures, and cell doors. For meal distribution, including during medical quarantine, multiple staff and prison workers are involved in preparing the food and meal tray, as well touching the tray in the process of delivering it through the facility, into the housing unit, and finally into the cell or dorm. In some facilities, for prisoners to enter or exit their cells, their cell door, chuckhole, and sometimes handcuffs on their bodies have to be physically handled by staff.
66. At some facilities, when prisoners need to be moved out of their cells, they are often held with other prisoners in a small holding cell at the front of the unit—often holding 10 or more prisoners in a very small space. Upon information and belief, even during the height of the outbreak at Stateville, the staff continued these practices, particularly holding groups of prisoners in the small holding cells for regular “shakedowns” and searches of the unit's cells.
67. Many areas of Illinois’s prisons are designed for clustering of staff or prisoners in ways that do not allow for social distancing. Examples include small sally ports through which staff pass at shift changes and “bubbles” and office space where security staff congregate.
68. Under these conditions, there is no ability to prevent surfaces from becoming cross-contaminated.
V. IDOC’s Placement of Medically Vulnerable Plaintiffs Puts Them At Unacceptable Risk of Significant Harm
69. William Richard (M52774) is 66 years old and lives in the Health Care Unit at Dixon Correctional Center. Mr. Richard has less than 3 months left on his sentence. Mr. Richard uses a wheelchair for movement and has chronic obstructive pulmonary disease (COPD), emphysema, and heart conditions, which place him at exponentially higher risk of medical
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complications and death if he contracts COVID-19. His respiratory conditions require the use of continuous oxygen and a breathing treatment two to three times per day.
70. Because IDOC considers his oxygen tank to be a security hazard (if he were located among the general population), he is housed in the Health Care Unit, where he shares his roughly 12 feet by 15 feet cell with three other individuals, making social distancing impossible— his bunk is less than five feet from his cellmate’s bunk, and all four men share a toilet, sink, and the chuckhole through which they receive their meals.
71. Mr. Richard has less than three months remaining on his sentence, but IDOC has refused to transfer him to home detention or to release him. In contrast to his placement at Dixon, he could reside and quarantine safely in his family home. He also has long-time medical care providers in his home community who are able to continue and manage his ongoing medical treatment. IDOC has identified Mr. Richard as medically vulnerable to COVID-19, and is aware that he has a family home awaiting him, but has not transferred him there via either medical furlough or electronic detention. Mr. Richard is eligible for medical furlough under the statute and Executive Order; however, IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Richard puts him at increased risk of contracting COVID-19.
72. Gerald Reed (N32920) is 57 years old and is housed at the Northern Reception Center (“NRC”), where there have been 37 confirmed staff cases of COVID-19 and one confirmed prisoner case. Mr. Reed has heart failure, hypertension, and is pre-diabetic. Mr. Reed uses a wheelchair for mobility because of a decades-old leg injury that adversely affects his mobility. Within the last year, Mr. Reed has been hospitalized for a heart attack and for pneumonia. Mr. Reed recently experienced symptoms consistent with COVID-19—he was
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fatigued, had headaches, and was vomiting blood. However, despite exhibiting these symptoms, IDOC did not test him for the virus.
73. At the NRC, Mr. Reed is prohibited from accessing commissary and is only provided a single, small bar of soap each week. Mr. Reed has a pending petition for executive clemency.
74. If released, Mr. Reed would return to live with his niece, who has space to allow him to safely quarantine and the ability to provide him with any necessary medical care. Mr. Reed is eligible for medical furlough under the statute and Executive Order; however, IDOC’s new medical furlough procedures exclude him even though he uses a wheelchair, is severely ill, and is at high risk for medical complications and/or death should he contract COVID-19. IDOC’s continued placement of Mr. Reed puts him at increased risk of contracting COVID-19.
75. Tewkunzi Green (R84568) is 38 years old and is housed at Logan Correctional Center, where there have been four confirmed staff cases of COVID-19 and one confirmed prisoner case. Ms. Green has a pending commutation petition, which was filed by the January 23, 2020 filing deadline; her hearing date of April 7, 2020 was postponed and she is now being scheduled for a non-public hearing. She has asthma and severe hypertension for which she takes multiple medications. In January 2019, she fainted related to hypertension and was held in the cardiology unit of an off-site hospital for several days.
76. At Logan, Ms. Green shares a room with three other women, which makes it impossible for her to practice social distancing.
77. Ms. Green has a stable housing plan; her mother, who owns her own home in Peoria, Illinois, where she also cares for Tewkunzi’s 13-year-old son, is willing and able to receive Ms. Green at any time. Ms. Green is eligible for medical furlough under the statute and
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Executive Order; however, IDOC will not consider her under the new, more restrictive procedures. IDOC’s continued placement of Ms. Green puts her at increased risk of contracting COVID-19.
78. Danny Labosette (B23629) is 56 years old and is housed at Robinson Correctional Center in Robinson, Illinois. Mr. Labosette has less than six months remaining on his sentence. Mr. Labosette is a double amputee; his left leg has been amputated above the knee, and his right foot has been amputated. Mr. Labosette uses a wheelchair. Mr. Labosette also has untreated Hepatitis C.
79. Mr. Labosette is housed in the Transitions Unit, a treatment facility within Robinson. Social distancing is impossible for Mr. Labosette—he resides in a dorm with roughly 20 other men. He sleeps in the bottom bunk of a bunk bed, which is 3 feet away from the neighboring beds.
80. Mr. Labosette has a stable housing plan in place for when he is released: he will live with his mother at her home in Florida, which has already been modified to accommodate his disabilities. Mr. Labosette is eligible for medical furlough under the statute and Executive Order; however, IDOC’s new medical furlough procedures exclude him even though he is a double amputee who uses a wheelchair. IDOC’s continued placement of Mr. Labosette puts him at increased risk of contracting COVID-19.
81. Carl “Tay Tay” Tate (R12529) is a 40-year-old transgender woman diagnosed with Gender Dysphoria who is housed at Danville Correctional Center, where there has been one confirmed staff case of COVID-19. Ms. Tate has almost six years left of her sentence to serve, but has a pending clemency petition which has the support of 40 organizations across the state. Ms. Tate has been diagnosed as prediabetic and lives with hypertension, for which she takes
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medication. Ms. Tate also lives with severe anxiety, and the COVID-19 outbreak has only increased her anxiety. An IDOC doctor recently increased Ms. Tate’s medication because her blood pressure is too high.
82. It is impossible for Ms. Tate to practice social distancing in her living situation. Ms. Tate shares a small cell with one other person. She and her cellmate sleep on bunk beds and only one person can move around comfortably in the cell at a time. Even with current limits on the number of people in the unit who are allowed out of their cells to use the communal dayroom for 30 minutes a day, Ms. Tate estimates that around eight to ten people may be in the dayroom at a time. She estimates that around 75 to 80 people at a time may be in the yard for 30 minutes a day. She also estimates that around 24 people at a time come out of their cell three times a day to line up to get their food trays, which are plastic and often handed out by either inmates or officers who do not wear gloves. Around 20 people at a time come out of their cell to line up to receive their medication. Ms. Tate has also observed officers frequently congregating in the core or in the bubble of her housing wing, not practicing social distancing. Additionally, Ms. Tate works as a laundry porter, which places her in frequent contact with other prisoners and staff and their clothing. She has asked for gloves to use, and has been denied. She has also asked for more cleaning supplies to clean the dayroom, including the phones, and has been denied. The phones in the day room are not properly cleaned after each person uses them. The showers are also not cleaned after each use. Officers often do not wear their masks or gloves. Officers consistently pass out mail to prisoners without wearing gloves. Ms. Tate asked to be tested for COVID-19, and she was denied because she did not have flu-like symptoms or a fever. Ms. Tate is aware that other prisoners have also asked to be tested and all were denied testing.
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83. Ms. Tate has a stable housing plan in place for when she is released: she will live with her sister, who resides in Lansing, Illinois. Ms. Tate is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider her under the new, more restrictive procedures. IDOC’s continued placement of Ms. Tate puts her at increased risk of contracting COVID-19.
84. Brittany Hill (Y38532) is 25 years old and is confined at Logan Correctional Center, where there have been four confirmed staff cases of COVID-19 and one confirmed prisoner case. Her Mandatory Supervised Release date is in August 2020. Ms. Hill has severe asthma and since the COVID-19 epidemic began, medical staff have been slower than usual responding to her requests for an inhaler and for the medications she takes for her mental illness. Because of her medical condition, Ms. Hill is at heightened risk of serious illness or death should she contract COVID-19.
85. Ms. Hill lives in a cell that is approximately 15 feet by 10 feet with two other women. Physical distancing is impossible in her cell. Social distancing is also impossible when she uses the phone, receives her food, and uses the bathroom. In late April 2020, one of Ms. Hill’s cellmates spent days with high fevers and chills; Ms. Hill acted as her caregiver while she was sick by providing her with extra sheets, Tylenol, and water. Even though Ms. Hill’s cellmate demonstrated symptoms of COVID-19, IDOC officials failed to provide Ms. Hill with adequate cleaning supplies to keep her living areas disinfected and sanitary. To this day, Ms. Hill’s cell has not been disinfected, and officers at Logan fail to use personal protective equipment consistently.
86. Ms. Hills has a stable housing plan in place for when she is released: she will live with her mother, who resides in Rockford, Illinois. Ms. Hill is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider her under the new,
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more restrictive procedures. IDOC’s continued placement of Ms. Hill puts her at increased risk of contracting COVID-19.
87. Kimberly Carter (K94361) is 47 years old and is confined at Logan Correctional Center, where there have been four confirmed staff cases of COVID-19 and one confirmed prisoner case. She lives with Bone Marrow disease and as a result is highly susceptible to infections. Prior to the COVID-19 pandemic, Ms. Carter was enrolled in school where she was earning good time credits. Her classes have now been canceled and she has been denied the opportunity to earn good time. As a result, she will spend more than three additional months in IDOC custody.
88. Ms. Carter cannot physically distance herself from her cellmate, nor can she physically distance herself from other women. Ms. Carter is housed in a two-person cell. In the bathroom, the toilets are very close to each other and women cannot physically distance while using the restroom. Additionally, the entire living unit uses the same common resources, and none of the points of contact are regularly sanitized. Up until recently, the women were in close contact when they ate meals, when they were in the day room, and when they were in the yard. IDOC officials fail to provide Ms. Carter with the supplies required to disinfect and sanitize her cell and living areas. She receives two small bars of soap per week and no hand sanitizer. She is thus unable to adequately protect herself from the risk of COVID-19.
89. Ms. Carter has a stable housing plan in place for when she is released: she will live with her daughter who resides in Chicago, Illinois. Ms. Carter is eligible for medical furlough under the statute and Executive Order; however, IDOC will not consider her under the new, more restrictive procedures. IDOC’s continued placement of Ms. Carter puts her at increased risk of contracting COVID-19.
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90. Lori Thompson (Y38234) is 57 years old and is confined at Logan Correctional Center, where there have been four confirmed staff cases and one confirmed prison case of COVID-19. She has serious asthma and has been hospitalized with pneumonia twice during the past two years.
91. Ms. Thompson is housed in a four-person cell, where it is impossible to physically distance. She has no access to the supplies necessary to adequately sanitize her living areas. Officers use personal protective equipment inconsistently, and she has repeatedly received her food tray from an officer who was not wearing gloves or a mask.
92. Ms. Thompson has a stable housing plan in place for when she is released: she will live with her mother who resides in Illinois. Ms. Thompson is eligible for medical furlough under the statute and Executive Order, but IDOC will not consider her under the new, more restrictive procedures. IDOC’s continued placement of Ms. Thompson puts her at increased risk of contracting COVID-19.
93. Kimberly Dunteman (Y41252) is 50 years old and is confined at Logan Correctional Center in Lincoln, Illinois, where there have been four confirmed staff cases of COVID-19 and one confirmed prisoner case. Ms. Dunteman has anxiety and chronic bronchitis and has had multiple severe cases of pneumonia, including a case in September 2019 that required hospitalization. Approximately three to four weeks ago, Ms. Dunteman became extremely ill, coughing and feeling both chilled and feverish. Ms. Dunteman was put on a sick call list, but by the time a nurse practitioner came to see her, her fever had broken. The nurse practitioner told Ms. Dunteman that nothing could be done because she did not have a fever, and gave her only Tylenol for her symptoms. After some delay, Ms. Dunteman was seen again on sick call, but was told that nothing could be done and that she could not be tested for COVID-19 because she did
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not have a fever. Ms. Dunteman continues to suffer from a cough, and her health condition, as well as the conditions of lockdown, have exacerbated her anxiety.
94. Ms. Dunteman shares a cell with three other women and has been unable to socially distance, even when she was severely ill. Ms. Dunteman was not quarantined away from her cellmates, who in fact helped care for her during her illness. Ms. Dunteman has not been provided with adequate cleaning supplies for her room, and phones are not cleaned between uses. The use of masks and gloves by correctional officers remains inconsistent, and Ms. Dunteman must stand only inches away from correctional officers in order to communicate with them at the cell door. Social distancing is also impossible in the bathroom, as toilets are right next to each other, and other conditions like standing water in the showers and mold on the shower curtains raise further sanitation concerns.
95. Ms. Dunteman has a stable housing plan if she is released: she would live with her fiance in Joliet, Illinois. Ms. Dunteman is eligible for medical furlough under the statute and Executive Order, but IDOC will not consider her under the new, more restrictive procedures. IDOC’s continued placement of Ms. Dunteman puts her at increased risk of contracting COVID19.
96. Lynwood Ellis (Y40094) is 62 years old and is confined at Stateville Correctional Center, which has had 154 confirmed prisoner cases and 75 confirmed staff cases of COVID-19. Mr. Ellis’s MRS date is in December 2021. Prior to the pandemic, Mr. Ellis was approved for work release. Mr. Ellis has high blood pressure for which he takes medication. Mr. Ellis has not received any type of testing for COVID-19.
97. Mr. Ellis is housed in a dormitory-style environment where it is impossible to physically distance. Each dormitory room is approximately the size of a basketball court, and
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houses 40 people in bunk beds with communal bathrooms. People living in the dormitory can freely go to the day room, where they can walk around or sit at tables together in close proximity, there is no limit to how many people can be in the day room together. Mr. Ellis has not been provided any cleaning materials nor personal soap. Mr. Ellis also works in the kitchen every day with 20 other workers serving food, washing dishes, and cleaning, and is given gloves and masks for working in the kitchen.
98. Mr. Ellis has a stable housing plan in place: with his wife who resides in Aurora, Illinois, a home site that has already been approved by IDOC. Mr. Ellis is eligible for medical furlough under the statute and Executive Order, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Ellis puts him at increased risk of contracting COVID-19.
99. Danny Wicker (N91831) is 50 years old and is confined at Northern Reception Center (“NRC”), where there have been 37 confirmed staff cases of COVID-19 and one confirmed prisoner case. Mr. Wicker suffers from hypertension, for which he takes medication. There have been times during the pandemic where IDOC has been delayed in refilling his medication. Prior to his incarceration, Mr. Wicker’s doctor informed him that he may have kidney damage, and he required a follow-up appointment with a specialist. When Mr. Wicker entered IDOC custody in February 2020, he informed IDOC about his kidney issues during his medical intake, but he has yet to see a doctor about this.
100. Mr. Wicker lives in a small cell with one other person where it is impossible to socially distance. He is locked in his cell all day, and is only let out four times a week to shower. The officers let out large groups of people at a time to shower, and Mr. Wicker has to wait in the bullpen with 20 to 30 other people until it is his turn to shower. The showers are not clean and
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have not been cleaned since Mr. Wicker arrived at NRC. Mr. Wicker gets one bar of soap each week, which he has to use to clean himself, his clothes, and his cell. He has only been given a broom to clean his cell; he has not received any bleach. Mr. Wicker receives his plastic food tray through the chuckhole, and not all the officers who pass out trays wear gloves. Many officers do not wear their masks or gloves. Officers allow prisoners to use the phone by bringing the phone to each cell, but they do not clean the phones before passing them to the next prisoner.
101. Mr. Wicker has a stable housing plan in place for when he is released: he will return to live with his wife at their home in Wheeling, Illinois. Mr. Wicker is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Wicker puts him at increased risk of contracting COVID-19.
102. Plaintiff Adam Grunin (Y41727) is 32 years old and is confined at the Northern Reception and Classification Center (NRC), where there have been 37 confirmed staff cases of COVID-19 and one confirmed prisoner case. Mr. Grunin has epilepsy, sleep apnea, and chronic bronchitis that makes him vulnerable to pneumonia. Mr. Grunin has experienced weeks-long delays in receiving his epilepsy medication, and has not been given a CPAP machine for his sleep apnea. These lapses in medication, poor sleep due to sleep apnea, and the stress and anxiety of the COVID-19 pandemic and being confined to his cell for 24 hours a day have led Mr. Grunin to suffer from six seizures in the past month.
103. Mr. Grunin is housed in a small cell with one other person and is unable to socially distance. Mr. Grunin spends 24 hours a day in his cell, and is only let out two to three times per week to shower. It is impossible to socially distance in the group shower, where prisoners are only two feet apart. Mr. Grunin is given a rag with bleach on it only once a week to clean his cell,
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and phones are not sanitized between uses. Mr. Gruin has been given only two masks, and has been using the same mask for about a month and a half. Correctional officers do not consistently wear masks, and frequently congregate with one another, failing to maintain a distance of six feet from one another and from prisoners.
104. Mr. Grunin has a stable housing plan in place for when he is released: he will live with his mother in Morton Grove, Illinois. Mr. Grunin’s Mandatory Supervised Release date is in July, and he has already submitted his mother’s address as a parole site. Mr. Grunin is eligible for medical furlough under the statute and Executive Order; however, IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Grunin puts him at increased risk for contracting COVID-19.
105. Andrew Hines (K75292) is 39 years old and is confined at Jacksonville Correctional Center, where there has been one confirmed staff case of COVID-19. Mr. Hines has less than five months left on his sentence. Mr. Hines suffers from hypertension, and medical staff is not performing regular checks of his blood pressure. Mr. Hines also has a lump in his groin that has returned after a 2012 surgery to remove a cyst in his groin. The lump is painful and has been growing rapidly, from the size of a bb to the size of a marble in a month and a half. Mr. Hines was told in late April that he needed an ultrasound to check the lump, but the facility has not sent him out for the test due to COVID-19.
106. Mr. Hines is housed in a dormitory-style setting that makes it impossible to physically distance. There are 100 prisoners per dormitory, with 20 double-bunked individuals in each 20 foot by 27 foot room. The bunk beds are about three feet apart. When someone shows symptoms of COVID-19, they are not removed from the wing; rather the entire side of the wing is quarantined together with the potentially sick individual.
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107. Mr. Hines has a stable housing plan in place for when he is released: he will live with his son, who resides in Springfield Illinois (this housing plan has already been approved by IDOC). Mr. Hines is eligible for medical furlough under the statute and Executive Order; however, IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Hines puts him at increased risk of contracting COVID-19.
108. Antwan Freeman (K97905) is 38 years old and is confined at Jacksonville Correctional Center, where there has been one confirmed staff case of COVID-19. Mr. Freeman is currently scheduled for Mandatory Supervised Release in October 2020. In February, Mr. Freeman was approved for a work-release program close to his home that would allow him to have an outside job and take 48-hour passes home to see his family. Despite being approved for this release program, Mr. Freeman has not been transferred to the work-release facility because Jacksonville Correctional Center has been on lockdown since February, first due to an influenza outbreak and now due to COVID-19. Mr. Freeman has asthma and hypertension, takes blood pressure medication, and has an inhaler.
109. Mr. Freeman is housed in a dormitory setting that makes physical distancing impossible. Despite a staff member recently testing positive for COVID-19, correctional officers at Jacksonville do not always wear their masks and continue to congregate in groups outside of the housing unit and in the chow hall. After the staff member tested positive, a few prisoners asked to be tested but were denied tests because they did not have a high enough fever.
110. Mr. Freeman has a stable housing plan in place for when he is released: he will return home to live with his wife and children. Mr. Freeman is eligible for medical furlough under the statute and Executive Order; however, IDOC will not consider him under the new, more
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restrictive procedures. IDOC’s continued placement of Mr. Freeman puts him at increased risk of contracting COVID-19.
111. Carlton White (B20358) is 46 years old and is confined at Jacksonville Correctional Center, where there has been one confirmed staff case of COVID-19. Mr. White has hypertension, sleep apnea, and a heart condition. He uses a CPAP machine for his sleep apnea, which may increase his vulnerability to the coronavirus. Prior to his incarceration, he underwent heart surgery, and he has recently started having chest pains that cause shortness of breath. While facility medical staff have indicated that Mr. White needs to see an outside cardiologist for his chest pain, this visit still has not taken place, presumably because of COVID-related lockdown.
112. Mr. White lives in a dorm-room with 19 other individuals at Jacksonville Correctional Center. He shares a bunk with another prisoner in a room with 4 other bunk beds, all spaced about three feet apart. Prison staff do not wear their face masks at all times. Hand soap is only passed out once every week or two.
113. Mr. White has a stable housing plan in place for when he is released: he will live with his wife, who resides in Alton, Illinois. Mr. White is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. White puts him at increased risk of contracting COVID-19.
114. Shardon Gay (R09017) is 38 years old and is confined at Danville Correctional Center, where there has been one confirmed case of COVID-19. Mr. Gay has asthma, anxiety, and is overweight. His asthma is frequently exacerbated by colds or allergies. Indeed, he has had cough symptoms for 3-4 weeks without being tested. He also has experienced heightened anxiety due to being locked down for 23.5 hours per day, resulting in panic attacks and shortness of
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breath. Since the COVID-19 response began in mid-March, Danville Correctional Center has stopped providing nebulizer treatments for prisoners with breathing conditions, including Mr. Gay, possibly due to fear about aerosoling the virus.
115. Mr. Gay lives in a two person cell that is approximately 8 feet by 10 feet. His meals are delivered to his cell by prisoner workers who rarely wear masks or gloves. Mr. Gay is allowed out of his cell for only 1 hour a day for 30 minutes in the day room with approximately 10 other people and for 30 minutes for yard with approximately 100 other people, most of whom congregate around the phone banks.
116. Mr. Gay has a stable housing plan in place for when he is released: he will live with his mother who resides in Rockford, Illinois. Mr. Gay is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Gay puts him at increased risk of contracting COVID-19.
117. Eric Valdez (Y38189) is 31 years old and is incarcerated at Vienna Correctional Center. Mr. Valdez has less than a year remaining on his sentence. Mr. Valdez has hypertension and a liver disorder. Mr. Valdez is prescribed high blood pressure medication, but did not receive his medication for a month and a half after Vienna went on lockdown due to the pandemic..
118. At Vienna, Mr. Valdez is bunked with another cellmate in a cell that does not have its own bathroom—rather, Mr. Valdez and his cellmate must share a communal bathroom with the 40 other individuals that live in their wing of the housing unit. In the wing’s dayroom, prisoners continue playing cards at communal tables and are not practicing social distancing, despite being unable to go to yard for fresh air. The staff at Vienna wear their face masks when their supervisors are present—otherwise, the masks hang below their chins. Staff continue to
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congregate in groups right outside the housing unit. Despite several individuals showing cold symptoms in the last few weeks, none were moved off the unit.
119. Mr. Valdez has a stable housing plan in place for when he is released: he will live with his mother, who resides in Chicago, Illinois. Mr. Valdez is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Valdez puts him at increased risk of contracting COVID-19.
120. Anthony Buchanan (M45778) is 47-years old and is incarcerated at Vienna Correctional Center. He has a year and a half left on his sentence, but has not been able to participate in any good-time programming for which he would otherwise qualify because all the programming is suspended due to the pandemic shut down. He has asthma, anxiety, and hypertension. Being locked down without outside recreation exacerbates his anxiety and causes him shortness of breath, which then triggers his asthma symptoms. As a result, he uses an inhaler two to three times every day.
121. Mr. Buchanan shares a cell with one other person and a communal bathroom with 41 other individuals on his wing. He only receives 30 minutes of outdoor recreation time a day and is otherwise confined to his cell block. Both the prisoners and staff congregate in the unit’s day room on a regular basis.
122. Mr. Buchanan has a stable housing plan in place for when he is released: he will live with his mother, who resides in Lawler, Illinois. Mr. Buchanan is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Buchanan puts him at increased risk of contracting COVID-19.
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123. Willie Holloway (M45996) is 26-years old and is incarcerated at Pinckneyville Correctional Center. Mr. Holloway has just six months remaining until his Mandatory Supervised Release date. He has asthma, a seizure disorder, and serious mental illness. He uses an inhaler and typically takes nightly breathing treatments, but medical staff have not been providing his breathing treatments for the last few weeks. His asthma attacks are so severe to have required hospitalization in the past.
124. At Pinckneyville, prisoners are unable to keep a minimum of six feet between them. Mr. Holloway is housed in segregation, where he must share a cell with another prisoner. If he attends yard, he must share a small segregation yard cage with three other prisoners who are not able to maintain six feet of distance. Staff continue to congregate in the “bubble” in the cell house and in other areas throughout the facility, often with their masks pulled down under their chins rather than covering their faces.
125. Mr. Halloway has a stable housing plan in place for when he is released: he will live with family in Illinois. Mr. Halloway is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Halloway puts him at increased risk of contracting COVID-19.
126. Tim Walton (K95244) is 41-years old and has been incarcerated at the Graham Classification and Reception Center since February 28, 2020. He is within six months of his Mandatory Supervised Release date. Mr. Walton has high blood pressure and suffers from depression and anxiety. He receives medications for all of these conditions, however, almost daily, there is something missing from his medication—often his blood pressure medication. Mr. Walton has difficulty accessing medical care at Graham, as it often takes up to 5 days for an
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appointment to be scheduled after a sick call request. Being locked down and in his cell almost 23 hours a day has made his depression and anxiety worse.
127. Mr. Walton lives with a cellmate in a space in which it is impossible to socially distance. Three days a week he receives about 5 minutes to shower in the unit’s communal showers. He only receives approximately one hour a day outside of his cell for either dayroom or yard with approximately 12 other prisoners. Mr. Walton’s meals are delivered to his cell by prisoner workers who do not wear masks or gloves. Staff only wear masks when under supervision and 5-6 staff people regularly congregate in the “bubble” talking and playing cards. While Graham was taking people’s temperatures for a few days in March, that practice ended in April and May.
128. Mr. Walton has a stable housing plan in place for when he is released: he will live with his mother, who resides in Macomb, Illinois. Mr. Walton is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Walton puts him at increased risk of contracting COVID-19.
129. Adrian Torres (Y38227) is 41 years old and is incarcerated at Sheridan Correctional Center, where there have been thirteen confirmed prisoner and seven confirmed staff cases of COVID-19. He has a year left on his sentence. Mr. Torres has diabetes, high blood pressure and suffers from sleep apnea requiring the use of a CPAP machine. He has not received new CPAP supplies in the past 9 months, which results in an increased risk of infection from unmaintained equipment. Mr. Torres also has anxiety for which he takes medications. Due to the current pandemic and increased isolation, his anxiety has gotten worse over the past several
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months, but he has not received any increased mental health treatment. Mr. Torres has not been offered a COVID-19 test.
130. Mr. Torres is single celled and only leaves his cell for 30 minutes three times a week to shower or use the phone. He has not had any meaningful interaction with people since mid-March.
131. Mr. Torres has a stable housing plan in place for when he is released: he will live with his mother, who resides in Illinois. Mr. Torres is eligible for medical furlough for ongoing care that IDOC cannot currently provide, but IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Torres puts him at increased risk of contracting COVID-19.
132. Lucious Rogers (B83280) is 43 years old and is incarcerated at the Medium Security Unit of Menard Correctional Center. He has suffered from severe asthma since childhood, and had to be resuscitated as a teenager due to an asthma attack. As an adult, he has required hospitalization for asthma-related complications. He requires an inhaler and has also been diagnosed with a heart murmur. Mr. Rogers works in the Menard slaughterhouse and has attempted to sign up for classes, but the programs are not running due to COVID-19.
133. Due to his incarceration, Mr. Rogers is unable to social distance or take proper precautions to avoid a COVID-19 infection. Mr. Rogers shares a cell with one other person and must endure crowded conditions every time he goes to yard, where it is impossible to physically distance. Like other prisoners at Menard, Mr. Rogers is given a single disposable face mask to use for an entire week. Correctional officers often do not wear their face masks and congregate with one another, talking and playing cards. Staff members and inmate porters who deliver food do not consistently wear masks and gloves.
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134. Mr. Rogers has a stable housing plan in place for when he is released. If released, Mr. Rogers will live with his wife and three stepchildren at their home in Caseyville, Illinois. There is ample space in their home for Mr. Rogers to self-isolate from the rest of the household and Mr. Rogers can receive healthcare in the community. He is a skilled laborer and was employed as a union carpenter prior to his incarceration. Mr. Rogers is eligible for medical furlough under the statute and Executive Order; however, IDOC will not consider him under the new, more restrictive procedures. IDOC’s continued placement of Mr. Rogers puts him at increased risk of contracting COVID-19.
VI. IDOC and Governor Pritzker Are Failing to Take Necessary Precautions to Reduce the Spread of COVID-19 Within Prisons and Protect the Medically Vulnerable Population
135. The IDOC operates 28 adult correctional facilities throughout the State of Illinois and houses around 37,000 individuals. There are 11,600 individuals employed by the IDOC.
136. The first confirmed cases of COVID-19 in IDOC occurred on Wednesday, March 25, 2020—three prisoners and three staff tested positive for COVID-19.
137. On April 1, 2020, the day before this lawsuit was filed, there were 52 confirmed prisoners who had COVID-19 in 2 different correctional centers (Stateville and North Lawndale ATC) and 25 confirmed staff who had the virus in 7 different correctional centers (Stateville NRC, Stateville, Sheridan, North Lawndale ATC, Menard, Joliet Treatment Center, and Crossroads ATC).
138. As of May 19, 2020, there are 197 confirmed prisoners who have contracted COVID-19 in 9 different correctional centers (Stateville, Stateville NRC, Sheridan, Pontiac, Hill, Logan, North Lawndale ATC, Fox Valley ATC, and Crossroads ATC) and 163 confirmed staff who have contracted the virus in 18 different correctional centers (Stateville, Stateville NRC,
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Western Illinois, Southwestern Illinois, Sheridan, Pontiac, Menard, Logan, Jacksonville, Hill, Graham, Danville, Joliet Treatment Center, Kewanee LSRC, North Lawndale ATC, Fox Valley ATC, Elgin Treatment Center, and Crossroads ATC).
139. The actual number of individuals with COVID-19 in IDOC is likely much higher. IDOC is not administering comprehensive testing at each prison—often denying prisoner requests for testing if prisoners do not have fevers, regardless of how many other signs or symptoms of the virus they report.
140. Fewer than 2% of Illinois’s prisoners have been tested for COVID-19. 141. Additionally, IDOC does not track employee testing. Staff are tested at a variety of locations, mostly through their private providers, and they are not required to report this information to IDOC. 142. Without more testing of prisoners and staff, and accurate tracking of the testing, the actual numbers of prisoners and staff who have the virus remain unknown. And without mass testing, among other vital preventative measures, it will be impossible to contain the spread of the virus in Illinois’s prisons. For example, mass testing at state prisons in Ohio have provided evidence of just how quickly and easily COVID-19 can spread in prisons. At two Ohio prisons where all prisoners were tested, nearly 80% of prisoners at each prison tested positive for the virus—many who were asymptomatic. 143. Because of the conditions at IDOC facilities, widespread testing is critical to protect the health and safety of individuals in custody, and particularly Plaintiffs and Class Members at heightened risk of negative outcomes from the virus. Testing should be done for any individual who presents with more than one sign or symptom of COVID-19, as well as those who have been exposed to an individual with COVID-19, whether directly or through staff.
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144. On March 30, 2020, Illinois health officials announced that the first prisoner—a man in his 50s housed at Stateville Correctional Center—had died from COVID-19. Since that time, IDOC has confirmed that at least 11 more Stateville prisoners have died from the virus. Upon information and belief, the actual number of total deaths from COVID-19 at Stateville may be 14. Upon information and belief, the majority of these deaths have been people who were medically vulnerable due to age or underlying medical condition.
145. Days before the first prisoner death, the Governor admitted that older individuals and those with serious chronic health conditions (including heart disease, diabetes, lung disease, among others) are at the highest risk for severe illness from COVID-19. The Governor has also publicly acknowledged the close proximity that those in IDOC custody are forced to live make them particularly vulnerable to COVID-19. And although the Governor has admitted that the IDOC is largely unable to isolate and quarantine those who are symptomatic and/or have COVID19, neither he nor Defendant Jeffreys has taken any action to ensure that preventative measures like adequate hygiene and sanitation, PPE, and social distancing are implemented in IDOC facilities.
146. Plaintiffs and Class Members must be given unrestricted access to soap so that they can practice frequent hygiene. Defendants must require and ensure that Plaintiffs’ and Class Member’s access to soap is not limited as it has been to date.
147. Frequent sanitation of all shared surfaces is also necessary to protect the health and safety of Plaintiffs and Class Members. Plaintiffs and Class Members must have access to undiluted disinfectants and paper towels or clean cloths (rather than dirty shirts or towels). Common-use areas (i.e. railings, doors, chuckholes) must be frequently sanitized and items such
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as telephones, gym equipment, and other items used serially by multiple individuals must be cleaned between each use.
148. Similarly, staff must avoid cross contamination of prisoners. For example, staff should be required to wash their hands and change masks after coming into close contact with one prisoner, before contacting another prisoner. This currently is a frequent problem, for example staff may shakedown a prisoner’s cell and strip search them, and then move directly to another cell and repeat the process without taking any steps to decontaminate themselves. Similar danger is posed when a guard escorts a prisoner, and then contacts other prisoners without decontaminating, or handcuffs a series of prisoners without decontaminating between each cuffing procedure.
149. Defendants must require and ensure that PPE is available and used by both individuals in custody and staff. This includes a requirement that staff wear masks and gloves at all times, along with an enforcement mechanism to ensure that staff are not permitted to disregard any such requirements when in proximity of Class Members. Clean masks must also be provided to individuals in custody with sufficient frequency.
150. Social distancing is necessary. It is critical that Defendants not only announce a general policy of social distancing, but that they implement and enforce it among staff throughout the facilities. It is particularly important that staff practice and maintain social distancing to prevent the spread of the virus and protect vulnerable prisoners. Staff should be required to socially distance from one another and from prisoners except in cases of emergencies, and must be required to disinfect any objects that they handle with or pass to prisoners (such as property and meal trays).
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151. As to social distancing requirements for medically vulnerable prisoners, the procedures must be carefully crafted in order to avoid placing Plaintiffs and Class Members in solitary confinement-like conditions or other punitive results. Measures that prohibit typically congregate activities (such as yard, gym, and dining) without alternative activities are not acceptable long-term solutions as they will cause other significant harms to the class. However, specific measures must be taken to avoid contamination for medically vulnerable prisoners, including increased social distancing and the option of single cell placement (with the individual's consent). Prisoners should not be placed in groups in bull pens or holding cells in a manner which prevents maintaining a six foot separation.
152. A medical quarantine should involve frequent contact with medical staff, and should be provided in the least restrictive environment possible to avoid the negative effects of extreme isolation. Currently, medical quarantine in IDOC prisons is far more restrictive than even disciplinary segregation and is often experienced as punitive. Unlike those quarantining with symptoms on the outside, IDOC prisoners are often shut out from the world entirely, some with no television or radio, and infrequent or no concerned phone calls with loved ones. This level of solitary confinement itself can cause devastating harm to both physical and mental health and must be avoided.
153. Further, Illinois law provides several established mechanisms for removing people in IDOC custody from the now-unsafe facilities, all of which are available to the Governor and Director in this emergency. Despite pressure from advocates, and despite the Governor’s own admissions that medically vulnerable people in IDOC custody are especially vulnerable to contracting and spreading COVID-19, the IDOC has refused even to consider whether to apply these mechanisms to Plaintiffs and other medically vulnerable putative class members.
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154. Pursuant to the Electronic Monitoring and Home Detention Law, 730 ILCS 5/58A-1 et seq. (“Home Detention Law”), IDOC has the authority and obligation to implement procedures through which eligible prisoners may serve a portion or all of their custodial sentence in home detention. The Home Detention Law directs the Department to issue administrative directives to allow for specifically enumerated categories of state prisoners to serve portions of their sentence in home detention. Pursuant to 730 ILCS 5/5-8A-3(d), IDOC may place a prisoner in an electronic monitoring or home detention program if that person is over 55 years old, has 12 months or less to serve on their sentence, has served at least 25% of their sentenced prison term, and is serving a sentence for conviction of an offense other than for certain sex offenses. Pursuant to 730 ILCS 5/5-8A-3(e), IDOC may place a person of any age serving a sentence for conviction of a Class 2, 3, or 4 felony offense which is not an excluded offense in an electronic monitoring or home detention program at any time. Pursuant to 730 ILCS 5/5-8A-3(b) and (c), IDOC may place a person of any age serving a sentence for conviction of a Class 1 or Class X felony offense, other than an excluded offense, in an electronic monitoring or home detention program for a period not to exceed the last 90 days of incarceration.
155. Pursuant to 730 ILCS 5/3-6-3(a)(3) and Administrative Code, 20 Ill. Adm. Code 107.210, the Director of IDOC may award to eligible prisoners up to 180 days of discretionary earned sentence credit for good conduct.
156. Pursuant to 730 ILCS 5/3-11-1(a)(2), the IDOC may transfer a person from a prison to medical furlough “to obtain medical, psychiatric or psychological services when adequate services are not otherwise available.” The IDOC therefore has statutory authority to release on medical furlough individuals who are medically vulnerable to COVID-19 either due to age or pre-existing medical conditions.
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157. Although the Governor expanded IDOC’s statutory authority to grant medical furlough, that Executive Order—issued on April 6, 2020, after Plaintiffs initiated this lawsuit— has not been utilized to protect Plaintiffs. In fact, on April 29, 2020—after the Court denied Plaintiff’s motion for a temporary restraining order—IDOC issued procedures that substantially narrowed the scope of the authority purportedly expanded with the Executive Order so as to exclude most of the medically vulnerable people in custody, including even those like Plaintiffs who could safely be transferred to their homes. Under IDOC’s new policy, the only prisoners eligible for medical furlough now are those not serving life sentences and who (1) have limited physical mobility and require rehabilitative and/or ongoing assistance to complete activities of daily living, such as bathing, dressing, transferring, toileting, and eating; or (2) are terminally ill and require end of life care. This protocol limiting furlough to those in need of that level of care renders medical furlough useless for the vast majority of people in need. As a result of this new policy, thousands of prisoners who could have been eligible for medical furlough—even before the Governor expanded the Director’s discretion—are now no longer even being considered by the IDOC. Defendants have acknowledged the risk to the medically vulnerable, but at the same time, they are refusing even to consider whether to medically furlough Plaintiffs and other members of the putative class.
158. Before Plaintiffs filed this lawsuit, on March 31, 2020, officials publicly announced that IDOC had released around 300 individuals—or less than one percent of the prison population.
159. From March 1, 2020, to May 19, 2020, IDOC has transferred home or released around 1261 people, but those efforts did not target the medically vulnerable population who should be prioritized. Instead, IDOC has limited its response to a relatively small number of
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releases (relative to its population) of only those who were approaching their release date anyway. More than 85% (1079) were released through a grant of earned discretionary sentence credit pursuant to 730 ILCS 5/3-6-3(a)(3) (meaning that these individuals were already within six months of their release date); and only 76 people have been transferred to electronic detention pursuant to 730 ILCS 5/5-8A-3 (all but 2 of these individuals have release dates within a year). Only 106 people have been transferred to medical furlough (all but 14 of these individuals have release dates within a year).19 Only 10 of the individuals released either via earned discretionary sentence credit or electronic detention are age 55 or older, and only 19 of the individuals released on medical furlough are age 55 or older—meaning IDOC has released only 29 of the 4,807 people in its custody who are age 55 or older, or 0.6%. Moreover, many prisoners who are medically vulnerable due to age or underlying medical condition remain in custody, including named Plaintiffs here, putting their lives in jeopardy.
160. Shortly after Plaintiffs initiated this lawsuit, the Governor commuted the sentences of a handful of prisoners using his executive clemency power; however, only two were, to Plaintiffs’ knowledge, medically vulnerable due to an underlying medical condition (and those were two of the original named Plaintiffs). Since the court’s denial of Plaintiff’s motion for a temporary restraining order, the Governor has stopped granting clemency petitions. Only 20 people have been granted clemency since the beginning of March 2020, while there are likely hundreds of current clemency petitions awaiting the Governor’s approval, many of whom are for prisoners who are medically vulnerable.
161. Dan Pacholke, a corrections expert with more than 37 years of experience, has specific recommendations for steps IDOC can take to proactively respond to COVID-19 to
19 Data available at https://www2.illinois.gov/idoc/Offender/Pages/CommunityNotificationofInmateEarlyRelease.aspx.
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protect the health and safety of medically vulnerable people in IDOC custody.20 Mr. Pacholke explains: “Among those steps is considering how IDOC can exercise its authority and discretion . . . to reduce the prison population. This includes awarding good time credits, transferring people to home detention, and authorizing medical furloughs.”21 Mr. Pacholke further explains that “[a]ll of these and any other options should be fully utilized to allow individuals to maintain social distancing and have better access to testing and treatment. This will also help mitigate the impact of staff shortages and lessens the burden on prison medical services.”22
162. Dr. Robert Greifinger, a correctional health expert, has concluded that “[r]isk mitigation is the only viable public health strategy available to limit transmission of infection, morbidity and mortality in prisons, and to decrease the likely public health impact outside of the prisons. Even with the best-laid plans to address the spread of COVID-19 in prisons, the release of individuals, prioritizing the most medically vulnerable individuals, is a key part of a risk mitigation strategy.”23 Dr. Greifinger explains that reducing the prison population “has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, disinfecting supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff, which will likely be reduced by illness, such that they can continue to ensure the safety of detainees.”24
20 Pacholke Decl., Exhibit 5. 21 Id. 22 Id. 23 Greifinger Aff., Exhibit 1. 24 Id.
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VII. IDOC’s Medical Care Program is Gravely Under-Resourced and UnderFunctioning, and is Not Capable of Managing COVID-19
163. Plaintiffs each require ongoing medical care in a system that was strained to provide the care they needed even prior to the COVID-19 outbreak. When their facilities have an outbreak, the medical staff and resources that Plaintiffs are forced to rely on (even for something as simple as receiving their daily medications) are stretched even thinner, placing Plaintiffs at greater risk of harm from both their underlying medical conditions and from the spread of the virus.
164. Even before COVID-19, IDOC’s medical care program was ill-equipped to meet the medical needs of prisoners in its care. For over a decade, IDOC has been mired in litigation over its consistent failure to maintain a minimally adequate system. See Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.). In 2014 and again 2018, the Lippert court appointed teams of independent experts to conduct exhaustive reviews of IDOC’s medical system, both of which exposed a system in dire need of reform. In October 2018, the team of experts issued a 1200-page report, reaching the following the conclusions:
a) The clinical care provided within IDOC was “extremely poor” and “resulted in preventable morbidity and mortality”;
b) IDOC lacked an adequate infections disease control program; c) IDOC’s Infectious Disease Coordinator position was vacant and had been vacant
since at least 2014; d) Systemic sanitation problems existed at multiple IDOC facilities; e) IDOC’s medical staff vacancy rates were “very high” and staffing was a “critical
problem” throughout IDOC;
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f) Physician staffing at IDOC was “very poor,” with “persistent and ongoing vacancies” in site medical director positions, high rates of turnover, and an overreliance on “traveling” medical directors who go from site to site;
g) Physicians who worked at IDOC were improperly credentialed, which was “a major factor in preventable morbidity and mortality” and “significantly increase[ed] the risk of harm to patients within IDOC.”25
165. Less than one year ago, IDOC agreed to a consent decree, which was approved and entered by the Court in May 2019, to begin needed reforms. See Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.), Doc. No. 1238 (consent decree). The consent decree called for the appointment of an independent monitor and a near complete overhaul of IDOC’s medical system.
166. In the nine months since the Lippert consent decree was entered, IDOC has taken preliminary steps to comply, but circumstances within the facilities remain largely unchanged. IDOC is still only in early stages of developing a compliance plan. There has been no meaningful on the ground change yet; facilities are still critically under-staffed and under-resourced. IDOC is simply unable to adequately meet the serious medical needs of IDOC’s population even under non-pandemic circumstances.
167. Even before the COVID-19 outbreak, in November 2019, the Lippert court monitor warned that the prevalence of elderly and infirm individuals in IDOC was straining the system.26 Regarding this population, the monitor noted: “It is the position of the monitor that in the short term additional IDOC resources must be directed to properly house and care for this population but in the near future the IDOC must take the lead to create a pathway to discharge
25 Exhibit 6 (Lippert Expert Report, October 2018) at 9-10, 21-31, 84-91. 26 Exhibit 7 (Lippert Court Monitor Report, November 24, 2019) at 9-10.
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those men and women whose mental and medical conditions make them no longer a risk to society to appropriate settings in the community.”27
168. Since the outbreak of COVID-19, IDOC administrators have issued memos to
prisoners notifying them that their medical resources were “stretched thin” and that they needed to focus “on [their] most vulnerable patients at this time.”28
169. When Plaintiffs initiated this lawsuit, there were 48 confirmed COVID-19 cases at
Stateville, with approximately 19 Stateville prisoners in outside hospitals—so many that they
overwhelmed the outside hospital that typically serves Stateville residents. The hospital’s
medical director, Dr. John Walsh, said,
This is a disaster because what I most fear is that without some resolution, the number of cases coming in from Stateville will become excessive. We currently have nine inmates on ventilators, critically ill. There was [sic] four in the emergency department a couple of hours ago, and I believe the volume of patients there is huge. In addition, something has to be done at Stateville. You will have a huge epidemic, remembering that 20% of the people who contract this virus are probably gonna end up in hospital and a number of them are gonna die. This could end with up to 100 inmates dying if this is out of control, and they are not isolated well at this point.29
170. The situation at Stateville became so grave that the Governor had to activate
Illinois National Guard service members to provide additional medical support at the prison.
However, even after the Illinois National Guard was activated, a second surge in confirmed
COVID-19 cases at Stateville began on May 5, 2020, and the number of infections at Stateville
continues to slowly but steadily rise.
171. As of the date of this filing, there have been 154 confirmed prisoners at Stateville
who have contracted the virus. Since filing this lawsuit, the virus has spread to prisoners at Hill
27 Id. 28 Exhibit 8 (IDOC Memorandum, COVID-19 Response). 29 abc7 Chicago, Illinois Prisoners Sick with COVID-19 Overwhelm Juliet Hospital (video), available at https://abc7chicago.com/health/illinois-prisoners-sick-with-covid-19-overwhelm-joliet-hospital/6064085/ (last visited Mar. 31, 2020).
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(14 confirmed cases), Logan (1 confirmed case), Pontiac (1 confirmed cases), Sheridan (14 confirmed cases), and Stateville NRC (1 confirmed case). By the Governor’s own admissions, COVID-19 continues to spread within the State of Illinois, posing a clear and present danger to Class Members within facilities where there are already one or more confirmed COVID-19 cases and those where the virus has not yet been introduced.
CLASS ACTION ALLEGATIONS 172. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual named Plaintiff bring this action on behalf of themselves and a class consisting of all medically vulnerable people who are currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic. Class Members are people in custody who are medically vulnerable to COVID-19 because they are 55 years of age and older, or medically vulnerable because they have serious 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. 173. Plaintiffs also seek relief on behalf of the following two subclasses:
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a) Subclass 1: Class members in prisons with one or more confirmed active COVID19 cases among either prisoners or staff.
b) Subclass 2: Class members in prisons where there are not yet any confirmed active COVID-19 cases.
174. A class action is the only practicable means by which the individual named Plaintiffs and the class members can challenge the Defendants’ unconstitutional actions. Many members of the class are without the means to retain an attorney to represent them in a civil rights lawsuit.
175. The class is so numerous that joinder of all members is impractical. Plaintiffs estimate that there are approximately 12,000 people in custody who are medically vulnerable to COVID-19 because they live with an underlying medical condition, and 4,807 people who are medically vulnerable to COVID-19 because they are 55 and older.
176. There are questions of law and fact common to all class members, including: (1) does COVID-19 present a substantial risk of harm to medically vulnerable Class Members in IDOC custody; (2) are Defendants aware of the substantial risk of harm posed to medically vulnerable Class Members; (3) have the Defendants failed to act reasonably to mitigate the spread of COVID-19 and protect medically vulnerable Class Members; (4) have the Defendants failed to respond reasonably to the serious risk of harm posed by COVID-19 to medically vulnerable Class Members by requiring them to live in conditions that put them at substantial risk; (5) are Defendants exposing medically vulnerable Class Members to an unreasonable risk of contracting COVID-19 by failing to provide a means for them to maintain social distancing adequate to reduce the risk of becoming infected; (6) are Defendants exposing medically vulnerable Class Members to an unreasonable risk of contracting COVID-19 by not requiring prison staff to use
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masks, gloves, and other personal protective equipment at all times when they interact with other members of the staff or with prisoners, including changing such equipment after potential exposure to the virus (for example, when entering and leaving medical isolation areas or after shaking down a prisoner or a cell); (7) are Defendants exposing medically vulnerable Class Members to an unreasonable risk of contracting COVID-19 by failing to properly clean and disinfect high touch areas (e.g., telephones, handcuffs, and crisis cells) before and after use by a prisoner or staff; and (8) are Defendants exposing medically vulnerable Class Members to an unreasonable risk of contracting COVID-19 by failing to conduct a sufficient number of tests and sufficient contact tracing to identify and isolate all staff and prisoners who are infected with COVID-19 to effectively contain the spread of the virus?
177. The claims of the named Plaintiffs are typical of those of the class as a whole. That typicality stems from their claim that Defendants have placed them at significant risk of harm by failing to take appropriate steps to address the risk of COVID-19 posed to class members as a whole throughout the IDOC. All class members in IDOC custody face a heightened risk of becoming severely ill or dying from COVID-19 if the IDOC fails to take meaningful action to contain the spread of the virus.
178. 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.
179. Defendants have refused to act in a manner that applies generally to the class as a whole, rendering class-wide injunctive and declaratory relief appropriate.
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COUNT I 42 U.S.C. § 1983 Deliberate Indifference to the Serious Risk of Harm Posed by COVID-19
(Alleged by all Plaintiffs on Behalf of Themselves and the Class Against all Defendants) 180. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this
Count. 181. Plaintiffs and the class they represent have been deprived and continue to be
deprived by the Defendants of their rights under the Eighth Amendment to adequately safe living conditions. Specifically, Defendants are aware of the substantial risk of harm that COVID-19 poses to all individuals, and are further aware of the particular risks of severe illness and possible death that Plaintiffs face as a result of their age or medical condition in Defendants’ correctional facilities. Despite this knowledge, Defendants have failed to take reasonable measures to protect Plaintiffs and the class they represent.
182. As a result of the Defendants’ actions and inactions, Plaintiffs and Class Members face a substantial risk of contracting COVID-19 and sustaining a serious illness that could lead to death. This harm manifests in two ways: 1) Class Members who are eligible for release are unnecessarily exposed to an exponentially increased risk of contracting COVID-19 and suffering a serious illness that could lead to death for so long as they remain in IDOC’s physical custody; and 2) Class Members who are likely to remain in IDOC custody because they lack a statutory pathway to release are exposed to an exponentially increased risk of contracting COVID-19 and suffering a serious illness that could lead to death because prisoners are not able to practice sufficient social distancing and IDOC has insufficient medical and sanitation resources to both prevent the spread of COVID-19 and to adequately treat those who contract the virus.
183. The Defendants’ failures to take appropriate steps to curb the substantial threat posed by COVID-19 to medically vulnerable people in IDOC custody, as described more fully
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above, constitutes deliberate indifference to Plaintiffs’ rights to be free from cruel and unusual punishment. Defendants know of and are disregarding a substantial risk of serious illness and/or death medically vulnerable people face as a result of the pandemic.
184. 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 Americans with Disabilities Act (“ADA”) (Alleged by all Plaintiffs on Behalf of Themselves and the Class Against Defendant Jeffreys) 185. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this Count. 186. Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. 187. The Illinois Department of Corrections is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131. 188. Members of Subclass 1 are qualified individuals with disabilities within the meaning of the ADA in that they have physical and/or mental impairments that substantially limit one or more major life activities. 42 U.S.C. § 12102(2). Major life activities of class members that are limited include respiratory and other functions of the body such as the immune system, circulatory system, endocrine (to regulate blood sugar), kidney (the ability to cleanse and eliminate body waste), normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, as well as limitations in breathing, eating, sleeping, thinking, concentrating, standing, and walking, among others.
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189. Defendant Jeffreys is violating Title II of the ADA by holding subclass members in unduly dangerous conditions that place them at a disproportionate risk of medical complication and death because of their disability.
190. Safe custody and housing for those incarcerated is a program, service or activity of IDOC.
191. Defendant Jeffreys is violating Title II of the ADA by failing to provide subclass members the reasonable accommodations that are needed and available to protect their lives by denying them medical furlough, release and/or transfer to home detention to allow subclass members to quarantine more safely in their homes.
192. Plaintiffs seek injunctive and declaratory relief against all Defendants to prevent the continued violation of the rights of Plaintiffs and the class they represent.
REQUEST FOR RELIEF Wherefore, Plaintiffs on behalf of themselves and the putative class they seek to represent, request that this Court enter judgment in their favor and against Defendants J.B. Pritzker and Rob Jeffreys and order the following relief: a) Issue an injunctive order requiring the Defendants to implement constitutionally sufficient procedures to protect medically vulnerable Plaintiffs’ and Class Members’ health and safety that are consistent with the expert judgment of correctional, public health, and health care specialists. b) Issue an injunctive order requiring IDOC to develop a plan to prioritize medically vulnerable Plaintiffs and Class Members for consideration of transfer or release through one of the available mechanisms, including medical furlough (as expanded under the Executive Order), home detention, or early release.
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c) Appoint a Special Masters to assist the IDOC in developing and implementing procedures to protect medically vulnerable Class Members.
d) Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and the Americans with Disabilities Act.
e) Grant such other relief as this Court deems just and proper.

Dated: May 20, 2020
Sheila A. Bedi Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 sheila.bedi@law.northwestern.edu
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932 vanessa.delvalle@law.northwestern.edu
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465 jennifer@illinoisprisonproject.org
Carolyn E. Shapiro 565 W. Adams Chicago, IL 60661 (773) 341-520-7533 cshapiro1@kentlaw.iit.edu

Respectfully submitted,
/s/ Vanessa del Valle One of the Attorneys for the Plaintiffs
Alan Mills Elizabeth Mazur Nicole Schult Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411 alan@uplcchicago.org liz@uplcchicago.org nicole@uplchicago.org
Sarah C. Grady Loevy & Loevy 311 North Aberdeen St., 3rd Fl. Chicago, IL 60607 (312) 243-5900 sarah@loevy.com
Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Ave, Suite 300 Chicago, IL 60602 (312) 341-0022 amanda@equipforequality.org samantha@equipforequality.org
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Case: 1:20-cv-02093 Document #: 48 Filed: 05/20/20 Page 55 of 55 PageID #:758 CERTIFICATE OF SERVICE
The undersigned, an attorney, certifies that she served the foregoing document upon all persons who have filed appearances in this case via the Court’s CM/ECF system on May 20, 2020.
/s/ Vanessa del Valle
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

William Richard, Gerald Reed, Tewkunzi Green, Danny Labosette, Carl “Tay” Tate, Brittany Hall, Kimberly Carter, Lori Thompson, Kimberly Dunteman, Lynwood Ellis, Danny Wicker, Adam Grunin, Andrew Hines, Antwan Freeman, Carlton White, Shardon Gay, Eric Valdez, Anthony Buchanan, Willie Holloway, Tim Walton, Adrian Torres, and Lucious Rogers,
Plaintiffs, v.

No. 20 C 2093 Honorable Steven C. Seeger

JB Pritzker and Rob Jeffreys, in their official capacities,

Defendants.

SETTLEMENT AGREEMENT AND GENERAL RELEASE

This Settlement Agreement and General Release (“Agreement”) is between the named

plaintiffs in this action (“Plaintiffs”) and the defendants, JB Pritzker and Rob Jeffreys, sued in

their official capacities (“Defendants” and, collectively with Plaintiffs, the “Parties”).

RECITALS

A. Plaintiffs filed this action in the United States District Court for the Northern

District of Illinois, alleging violations of the U.S. Constitution and the Americans with

Disabilities Act (“ADA”). Plaintiffs seek, among other things, an injunction requiring

Defendants to (a) implement constitutionally sufficient procedures to protect the health and

safety of medically vulnerable Plaintiffs and other Illinois prisoners from risks associated with

the COVID-19 virus, and (b) develop a plan to prioritize medically vulnerable Plaintiffs and

other medically vulnerable prisoners for release from prison under programs available under

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Illinois law, including medical furlough, earned discretionary sentencing credit, and electronic detentions.
B. Defendants deny Plaintiffs’ allegations, aver that Plaintiffs have failed to state a claim on which relief can be granted, and enter into this Agreement without admitting any liability.
C. To avoid further expense and in recognition of the Parties’ positions, the Parties wish to settle, compromise, and terminate this action on the following terms.
TERMS 1. In connection with efforts to reduce the risk of COVID-19 in Illinois prisons, Defendants have been and will continue to cause the Illinois Department of Corrections (the “Department”) to identify and evaluate medically vulnerable prisoners for release through legally available mechanisms. For the duration of this Agreement, the Department will use best efforts to expeditiously review for and when appropriate award earned discretionary sentencing credit to eligible people as follows:
a. Earned Discretionary Sentencing Credit (“EDSC”). The Department will continue to provide EDSC pursuant to 730 ILCS 5/3-6-3(a)(3), 20 Ill Adm. Code 107.142 and Subpart C. Unless otherwise prohibited by state statute or administrative code, the Department will award 60 days of EDSC to all offenders scoring out as low risk on a validated risk and needs assessment. Unless otherwise prohibited by state statute or administrative code, the Department will award 30 days of EDSC to all offenders scoring out as medium risk on a validated risk and needs assessment. The EDSC awards in this section shall be limited to only those offenders within 9 months of their release date at the time of this
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agreement. The Department will use its best efforts to issue these EDSC awards

within 30 days of the execution of this Agreement. The Department retains

discretion to award EDSC in amounts that exceed those described in this

paragraph.

b.

Risk Assessment: The Department is in the process of transitioning from

its current risk assessment tool, known as the Illinois Public Safety Assessment System

(“IPSAS”) to the Ohio Risk Assessment tool (“ORAS”). The Department will base its

risk level determinations on ORAS for individuals who have been evaluated under that

tool, and on the current tool, IPSAS, for those who have not.

c.

Public Reporting: The Department will continue to publish on its website

Community Notification of Inmate Early Releases the IDOC numbers of each person

who exited IDOC custody with an EDSC award.

d.

Expedited Review for Named Plaintiffs: Within 14 days of this

Agreement, the Department will review each named Plaintiff identified by Plaintiffs’

counsel for electronic detention or EDSC. The Department will provide Plaintiffs’

counsel with the determination made for electronic detention or EDSC for each named

Plaintiff.

2. ADA Training. The Department will provide a training to each facility’s ADA

Coordinator, Health Care Unit Administrator, and Assistant Warden of Programs and Operations

regarding reasonable accommodations consistent with the ADA that may be needed by some

individuals with disabilities that may make them vulnerable to COVID-19.

a. The training will include information regarding how individuals with

disabilities can be at a higher risk for harm, including medical complications and death,

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from COVID-19; public health recommendations on best practices to prevent COVID-19; and how otherwise typical conditions in housing units and facilities may affect risk of exposure to COVID-19.
b. The training will include information regarding types of accommodations that may be appropriate for consideration as a reasonable modification, including but not limited to (1) increased PPE and hygiene supplies; (2) increased access to cleaning and sanitation supplies; (3) alternative schedules to allow decreased contacts during showers, dining, yard, phone use, or other activities; (4) access to well-ventilated spaces, such as proximity to windows or other access to fresh air; (5) adjustments to housing or bed assignments, including possible single-celling, to allow for greater social distancing and/or ventilation (such as proximity to windows or other sources of fresh air).
c. The training will identify the importance of discussing with the individual any proposed accommodations to allow the individual to consent to any accommodations that would affect their access to programs and activities (such as changes in housing unit or cell assignments).
d. The Department will provide the training, previously reviewed by Plaintiffs’ counsel, within 30 days of this agreement.
e. Duration of Agreement. This Agreement will remain in place until July 1, 2021, unless extended by mutual written agreement. 3. Attorneys’ Fees and Costs. In consideration for the full and complete settlement of this claim, Plaintiffs’ counsel shall receive $100,000 (“Attorneys’ Fees and Costs”), payable to the Illinois Prison Project and mailed to 53d West Jackson Suite 1056, Chicago IL, 60604. No individual Defendant shall be responsible for payment of any sum under this Agreement. The
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Parties understand that the Attorneys’ Fees and Cost are subject to the availability of funds in the State Treasury and the operations of the State Comptroller’s office in processing vouchers for payment. Plaintiff’s counsel shall submit taxpayer identification, W-9 forms, or any other documents reasonably requested to make the payment. The payment of the Attorneys’ Fees and Costs is not to be construed as an admission of any liability.
8. Release. Plaintiffs and their heirs, successors, assigns, and all other persons acting on Plaintiffs’ behalf release and forever discharge Defendants and the State of Illinois, their agents, former and present employees, successors, heirs, and assigns, and all other persons acting on their behalf from all actions, claims, and demands for injunctive relief that arose or could have arisen from the facts alleged or claims made in this action, whether known or unknown, up to the date of this Agreement and accrued prior to the date of this Agreement. Except for the Attorneys Fees and Costs to be paid under this Agreement, Plaintiffs and Plaintiffs’ attorneys release, waive, and relinquish any claim or right to attorney fees, costs, or expenses allegedly incurred or due related to anything released under this Agreement.
9. Dismissal. Plaintiffs’ counsel agree to dismiss this action without prejudice within five business days of their receipt of a fully executed Agreement, and will dismiss this action with prejudice within five business days of the Department’s submittal of a payment voucher to the Comptroller requesting payment of the Settlement Amount.
10. This Agreement contains the entire agreement between the Parties. No promise has been made to pay or give Plaintiffs or their counsel any greater or further consideration other than as stated in this Agreement. All the Parties’ discussions, agreements, covenants, representations, and warranties, express or implied, oral or written, concerning this Agreement’s subject matter are contained in this Agreement.
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