### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 20-2236 & 20-2709

R ALPH H OLMES, et al. , Plaintiffs-Appellants ,

v.

S ALVADOR A. G ODINEZ, Acting Director of Illinois Department of Corrections, Defendant-Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Il linois, Eastern Division. No. 11-cv-2961 — Young B. Kim, Magistrate Judge

.

____________________
A RGUED J ANUARY 22, 2021

— D ECIDED M ARCH 16, 2021

____________________

Before R IPPLE , KANNE , and S CUDDER , Circuit Judges

. KANNE , Circuit Judge . This is a straightforward contract interpretation case. Plainti ff s are Illinois prison inmates with hearing problems. They executed a judicially enforceable Settlement with the Illinois Depart ment of Corrections (“IDOC”) that requires IDOC to provide them with certain audiological

care.2 Nos. 20-2236 & 20-2709

Two provisions of the Se tt lement are at issue: one grants the court power to award a tt orney fees to Plainti ff s if IDOC “has been in substantial non-compliance” with the Se tt lement, and the other requires IDOC to refer inmates in need for an audiological evaluation by a licensed audiologist.

Plainti ff s sued to enforce the Se tt lement and for a tt orney fees based on past violations of it. The district court obliged. The district court correctly awarded a tt orney fees to Plainti ff s based on IDOC’s “substantial non-compliance” with the Se tt lement of referring about 700 inmates for inadequate evaluations. But the court incorrectly determined that IDOC wasobligated to ensure that its prison inmates receive audiological evaluations (or re-evaluations) within a set timeframe— the Se tt lement contains no such requirement. We therefore affi rm in part and reverse in partthe decision of the district court, and we terminate our stay of the district court’s order.

I. B ACKGROUND In the underlying class action, Plainti ff s alleged on behalf of deaf and hard-of-hearing inmates in IDOC custody that IDOC unlawfully denied them “the assistance they need to communicate e ffectively and participate in IDOC programs and services.” The parties executed a Se tt lement in July 2018 to resolve their dispute. Among other things, the Se tt lement requires IDOC to screen inmates for hearing problems, to refer inmates in need to a licensed audiologist for a more thorough audiologicalevaluation, and then to maintain records of inmates’ evaluations and provide inmates with certain care according to the results of their evaluations.Nos. 20-2236 & 20-2709 3

For about a year after the court approved the Se tt lement, IDOC admits that it incorrectly referred about 700 inmates tolicensed hearing instrument dispensers (“LHIDs”)—i.e., hearing-aid salesmen—instead of audiologists for their audiological evaluations (the “LHID violations”). IDOC discontinuedthe practice in July 2019 after the parties reached an out-ofcourt agreement to resolve it. In 2020, Plainti ff s fi led a motion to enforce the Se tt lement arguing that IDOC is not ensuri ng that the audiological evaluations are completed within a reasonable time period; they allege there is as much as an eight-month gap between their screenings and their audiological evaluations. Plainti ff s also sought a tt orney fees for the investigat ion and resolution of the LHID violations.

This motion to enforce the Se tt lement and for a tt orney fees involved two aspects of the agreement. First, the Se tt lementrequires IDOC to ensure that inmates whose hearing screenings show that they are deaf or hard of hearing are “referred to an audiologist for an Audiolog ical Evaluation at the earlier of: (a) thirty (30) days after arriva l to their home facility; or (b) 45 days after being admi tt ed into IDOC custody.” Second, the Se tt lement states that if the court fi nds that IDOC “has been in substantial non-compliance” with the Se tt lement, the court “has the power to enter, and shall enter, whatever orders are necessary to ensure complianc e with the terms of the Se tt lement.” That power includes awarding “reasonable a tt orney’s fees for any work expended by Class Counsel in investigating and litigating such non-compliance.”

The district court concluded th at IDOC was in substantial non-compliance with the Se tt lement through the LHID violations, and it thus ordered IDOC to pay Plainti ff s about $54,0004 Nos. 20-2236 & 20-2709

in a tt orney fees for the investigation and resolution of those violations (the “a tt orney-fee decision”).

The district court also determined that the Se tt lement requires IDOC to ensure the audiological evaluations are completed within a reasonable timeframe, which it de fi ned as 90 days after a referral (the “evaluation decision”).Finally, the court ordered IDOC to ensure that the 700 inmates who received inadequate evaluations by LHIDs were given proper audiological evaluations by August 28, 2020—about twelve weeks after the date of the court’s order (the “reevaluation decision”). IDOC appeals these three decisions. We stayed the e ffectof evaluation and re-evaluation decisions during the pendency of this appeal, and we will address those two decisions in tandem.

II. A NALYSIS The parties agree that because the Se tt lement is judicially enforceable, it is a consent decree. Doe v. Cook County, 798 F.3d 558, 563 (7th Cir. 2015) (“[I]f an ag reement is judicially enforceable—that is, if a violatio n means anything other than restarting the litigation on the me rits—the agreement must be treated as a ‘consent decree’ ... .”).

We review a district court’s in terpretation of a consent decree de novo

. In re Trans Union Corp. Privacy Litig ., 741 F.3d 811, 816 (7th Cir. 2014). Plainti ff s request that we show deference to the district court’s order because we have “sometimes said that we will give an unspeci fi ed amount of deference to a district court’s interpretation [o f a consent decree] when that court has overseen the litigation for a long time and is familiar with the details of what may be a complex arrangement.” Id

.Nos. 20-2236 & 20-2709 5

But de novo review is appropriate here because we are interpreting the terms of a consent de cree that sets out the parties’ “substantive rights and obligations.” Id.“For purposes of construction, a judicially approved consent decree is essentially a contract.” United States v. Alshabkhoun , 277 F.3d 930, 934 (7th Cir. 2002) (citing United States v. City of Northlake, 942 F.2d 1164, 1167 (7th Cir. 1991)). It is thus interpreted according to princi ples of state contract law. City of Northlake, 942 F.2d at 1167.Under Illinois law, which applies here, “the court’s ‘primary objective in construinga contract is to give e ffect to the intent of the parties.’ The court must fi rst ‘look to the language of [the] contract alone, as the language, given its plain and ordinary meaning, is the best indi cation of the parties’ intent’ ... .” Peoples Gas Light & Coke Co. v. Beazer E., Inc. , 802 F.3d 876, 881 (7th Cir. 2015) (alteration in original) (citation omi tt ed) (quoting Gallagher v. Lenart, 874 N.E.2d 43, 58 (Ill. 2007)). “[A] court will not rewrite a contract to suit one of the parties ... .” Wright v. Chi. Title Ins. Co. , 554 N.E.2d 511, 514 (Ill. App. Ct. 1990) (citing A.A. Conte, Inc. v. Campbell–Lowrie–Lautermilch Corp. , 477 N.E.2d 30 (Ill. App. Ct. 1985)). Illinois law imposes “a strong presumption against pr ovisions that easily could have been included in th e contract but were not.” Id. (citing Braeside Realty Tr. v. Cimino , 479 N.E.2d 1031 (Ill. App. Ct. 1985); Ebrahim v. Checker Taxi Co. , 471 N.E.2d 632 (Ill. App. Ct. 1984)). And “a court will not add te rms simply to reach a more equitable agreement.” Id. (citing Nat’l Tea Co. v. Am. Nat’l Bank & Trust Co. of Chi. , 427 N.E.2d 806 (Ill. App. Ct. 1981)). The district court followed these principles when it awarded a tt orney fees to Plainti ff s but did not precisely6 Nos. 20-2236 & 20-2709

follow them when it ordered IDOC to ensure that audiological evaluations be completed within a certain timeframe.
A. The A tt orney-Fee Decision Once more, the Se tt lement states that if the court fi nds thatIDOC “has been in substantial non-compliance with the Settlement Agreement, then the co urt has the power to enter, andshall enter, whatever orders are necessary to ensure compliance with the terms of the Se tt lement.” That power includes awarding “reasonable a tt orney’s fees for any work expendedby Class Counsel in investigating and litigating such noncompliance.” IDOC admits that it was in “substantial non-compliance” with the Se tt lement when it commi tt ed the LHID violations. Thus, we easily conclude that the court had authority under the Se tt lement to award a tt orney fees for the investigation and resolution of that past non-comp liance in order to ensure that it does not repeat.IDOC provides two counter arguments, but neither is persuasive. First, IDOC argues that Plainti ff s should not have been permi tt ed to seek a tt orney fees because the Se tt lement provides that the parties “shall meet and confer and a tt empt to resolve any issues of potential non-compliance prior to such issues being the subject of any motion with the Court.”This argument is not well developed and, as we’re able to construe it, is not convincing. IDOC correctly notes that the parties did meet and confer to reso lve the LHID violation, so the meet-and-confer provision was satis fi ed. But IDOC still appears to argue that because the parties resolved the issue on their own, the court had no power to then enter the a tt orneyfee award. We don’t read the Se tt lement that way. Nothing inNos. 20-2236 & 20-2709 7

it prevents Plainti ff s from asking the court for an award of the fees incurred during the parties’ out-of-court negotiations. To the contrary, it explicitly prov ides that the court “may award reasonable a tt orney’s fees for anywork expended by Class Counsel in investigating and litigating ... non-compliance.” Second, IDOC argues that because the court must fi nd that the Department “has been”—not hadbeen—in non-compliance, there must be an “ongoi ng” violation for the court to award a tt orney fees; the violation here, though, ceased in 2019. This argument is unconvin cing because the plain andordinary usage of “has been” is to refer to events that are ongoing orthat were completed in the past. The Chicago Manual of Style ¶ 5.132 (17th ed. 2017) (“The present-perfect tense is formed by using haveor has with the principal verb’s past participle ... . It denotes an act, state, or condition that is now completed or continues up to the present [E.g., she has] put away the clothes.”). This plain meaning applies here. Peoples Gas Light & Coke Co. , 802 F.3d at 881 (quoting Gallagher, 874 N.E.2d at 58). As IDOC notes, the Se tt lement does not require the court to fi nd that IDOC “had been” in non-compliance (i.e., that a violation was completed in the past). But it also does not require the Court to fi nd that IDOC “is” in non-compliance (i.e., that a violation is ongoing). Instead, the Se tt lement uses the term “has been,” which, as explaine d, encompasses both scenarios. And it makes sense for the court to be able to enter orders that help ensure both that past viol ations don’t repeat and that ongoing violations cease. Thus, th e district court correctly found that because IDOC was in substantial non-compliance with the Se tt lement through the LHID violations, it could award

a tt orney fees for the resolution of that non-compliance.8 Nos. 20-2236 & 20-2709

B. The Evaluation and Re-Evaluation Decisions For this second issue, the relevant part of the Se tt lement provides that IDOC must ensu re that inmates whose hearing screenings show that they are de af or hard of hearing are “referred to an audiologist for an Audiological Evaluation at the earlier of: (a) thirty (30) days after arrival to their home facility; or (b) 45 days after being admi tt ed into IDOC custody.” The key word in this provision is “refer.”Refer in this context most ordinarily means “to send or direct for treatment.” Refer, Merriam-Webster, h tt ps://www.merriam-webster.com/dictionary/refer; accord St. Louis E ff

ort for AIDS v. Hu ff

, 782 F.3d 1016, 1027 (8th Cir. 2015) (de fi ning refer as “to send [or] direct for treatment, aid,information, or decision” (alteration in original) (citing Webster’s Third New Internationa l Dictionary 1907 (1993))). So, we agree with the distri ct court that, based on the meaning of the word “refer,” IDOC has some obligation regarding the completion of the evaluations—it must use its best e ff orts to actually “send” its inmates in need to an audiologist so that the evaluations can be performed. Grant v. Bd. of Educ. of Chi. , 668 N.E.2d 1188, 1197 (1996) (“A best e ff ortsundertaking has been likened to the exercise of good faith implied in all contracts.” (citations omi tt ed)). The district court, though, we nt one step further and determined that IDOC must ensure that the evaluations, or reevaluations, are completed within a speci fi c timeframe. That was a bridge too far. By its plain terms, the Se tt lement only obligates IDOC to refer inmates for audiological evaluations and then to keep records of the evaluations and to treat inmates based on theNos. 20-2236 & 20-2709 9

results of their evaluations. As the district court noted, “IDOC is correct that the Se tt lement requires a Class Member to bereferred within the 30- or 45-day period, not physically evaluated within that time period.”So IDOC did not agree, expressly or by implication, to ensure that audiologists complete those evaluations within a defi ned period, and we “will not rewrite [the Se tt lement] to suit [Plainti ff s]” by stating otherwise. Wright, 554 N.E.2d at 514 (citing A.A. Conte, Inc. , 477 N.E.2d at 30). Indeed, it would be hard to imagine IDOC taking on any such responsibility, as the audi ologists who perform the evaluations are out of the control of IDOC and perhaps unenthusiastic about treating inmates. Similarly, IDOC certainly did not assume, as Plainti ff s state in their brief, the obligation to itself “conduct the evaluations” within a reasonable timeframe. As explained ad nauseum , IDOC very clearly agreed only to “refer” inmate s in need for evaluations. This plain reading is con fi rmed by many other provisions in the Se tt lement that do require IDOC to ensure that some aspects of the audiological care process are completed within speci fi c timeframes. For example, IDOC must ensure that an inmate who requests a hearing screening “will receive such a screening within thirty (30) da ys.” The parties thus “easily could have” included a similar obligation for the completion of audiological evaluations (even if di ffi cult to achieve as stated above). Id. (citing Cimino , 479 N.E.2d at 1031; Ebrahim , 471 N.E.2d at 632). But they did not.

Plainti ff s argue that we should de part from this straightforward reading of the se tt lement for four reasons. We do not fi nd any of them convincing.10 Nos. 20-2236 & 20-2709

First, Plainti ff s correctly point out that, under Illinois law, “[w]hen a contract does not sp ecify a deadline for performance, a reasonable time will be implied.” Abellan v. Lavelo Prop. Mgmt., LLC , 948 F.3d 820, 829 (7th Cir. 2020) (citing Bowens v. Quinn , 561 F.3d 671, 675 (7th Cir. 2009)). And because, as Plainti ff s assert, “[t]he Se tt lement requires IDOC to perform a speci fi c act—an Audiological evaluation”—but does not set out a timeframe for performance, we should imply that IDOC mu st perform within a reasonable time. The issue, though, is that the Se tt lement does not require IDOC to perform an audiological evaluation. As explained, it only requires IDOC to “refer” inmates for such anevaluation, which is an obligation that comes with a set timetable and for which a timeframe need not be implied. Second, our decision today does not, as Plainti ff s contend, thwart the stated purpose of the Se tt lement to “bene fi t deaf and hard of hearing inmates who are con fi ned in IDOC correctional facilities.” The fact is that Se tt lements are compromises in which the parties—as the term suggests—“se tt le” for less than they might have go tt en at trial. They sacri fi ce some goals to achieve others and to resolve a dispute without the expense of further litigation. See Local No. 93, Int’l Ass’n of Firefi

ghters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 521 (1986).
As Plainti ff s admit, then, “the relevant purposes in interpreting a consent decree (like any other contract) are the purposes embodied in the instru ment rather than the maximum aspirations-which are bound to be inconsistent anyway-of the interested parties.” White v. Roughton , 689 F.2d 118, 119–20 (7th Cir. 1982).Nos. 20-2236 & 20-2709 11

Our reading of the Se tt lement in this case furthers the stated purpose to bene fi t inmates. As interpreted, the inmates still receive its many bene fi ts from the Se tt lement, includingaudiological screenings, a referral to an audiologist, and certain care after an audiological evaluation. In the end, even the evaluation itself is a bene fi t of the Settlement because Plainti ff s will—as they admit—eventually receive it, just not as soon as they ’d like. True, we could read the Se tt lement to bene fi t Plainti ff s even more. But the plain text of the Se tt lement is our North Star, not Plainti ff s’ maximum aspirations. Third, Plainti ff s argue that it would be “absurd” for the Se tt lement to allow IDOC to simply refer an inmate for an audiological evaluation and thensit on its hands. Not so. Illinois law requires that contracts must be construed to avoid absurd results, “in the sense of results that the parties, presumed to be rational persons pursuing rational ends, are very unlikely to have agreed to seek.” Beanstalk Grp., Inc. v. AM Gen. Corp. , 283 F.3d 856, 860 (7th Cir. 2002) (citations omitted). But “[t]his is an interpretive principle, not a species of paternalism.” Id. Our interpretation of the Se tt lement does not lead to any absurd results. To start, we’ve already determined that IDOC’s obligation to refer inmate s in need carries with it a correlating obligation to use its best e ff orts to see that the inmate is actually sent to an audiologist for an evaluation. So IDOC can’t sit on its hands as Plainti ff s fear. What’s more, nothing in the record shows that IDOC has engaged in the conduct that Plainti ff s complain might one day occur. Plainti ff s only complain that the evaluations aren’t12 Nos. 20-2236 & 20-2709

happening quickly enough—butthey acknowledge that they’re happening.IDOC also presented evidence to the district court showing that it has not sat on its hands. Since 2019, its primary health-care vendor, Wexford Health Sources, Inc., has “stepped up its e ff orts to identify additional audiologists” who are willing to treat inmates. But as detailed by Wexford’s Vice President, those e ff orts are often fruitless as many audiologists refuse to work withinmates based on “concerns about security, the loss of other patients from the community who are concerned about the presence of o ffenders in the offi ce, or the risk of lawsuits.”

Even if Plainti ff s’ fears were credible, Plainti ff s are still receiving the many other bene fi ts from the Se tt lement that they bargained for. If they wanted to secure an additional bene fi t— that IDOC ensure the evaluation s are carried out within a certain timeframe—then they should have demanded that it be spelled out in the Se tt lement. The omission of this extra requirement does not render the Se tt lement absurd. And even if the omission of such a requir ement was inequitable, we willnot paternalistically “add terms simply to reach a more equitable agreement.” Wright, 554 N.E.2d at 514 (citing Nat’l Tea Co. , 427 N.E.2d at 806). Fourth, Plainti ff s emphasize IDOC’s responsibility to provide medical care under the Eighth Amendment and theAmericans with Disabilities Act (“ADA”). But those constitutional and statutory duties are i rrelevant to the contractual issue before us. This is a motion to enforce, so “it is the parties’ agreement that serves as the source of the court’s authority to enter any judgment,” not federal law. Alshabkhoun , 277 F.3d at 934 (quoting Local 93, Int’l Ass’n of Fire fi

ghters v. City ofNos. 20-2236 & 20-2709 13

Cleveland, 478 U.S. 501, 522 (1986)) (citing King v. Walters , 190 F.3d 784 (7th Cir. 1999)). No court has decided whether the Eighth Amendment or the ADA requires IDOC to provide Plainti ff s with audiological evaluations. And as part of the Se tt lement, Plainti ff s released their claims under those laws, and IDOC denied violating them. In sum, there are no provisions in the Se tt lement requiringIDOC to ensure that the audiological evaluations are completed within a set timeframe. As a result, the court’s evaluation decision—which required ID OC to ensure that the evaluations be completed within ninety days of an inmate’s referral—was unsupported.Further, the court’s re-evaluation decision—which required IDOC to ensure the re-evaluation, by August 28, 2020, of the 700 inmates who su ffered the LHID violations—likewise went beyond the provisions of the Se tt lement Agreement. As stated, the Se tt lement gives the court power to enter orders “to ensure compliance” with the se tt lement. While the

a tt orney-fee decision falls within this grant of authority, the re-evaluation decision does not because it imposes a duty on IDOC not speci fi ed by the Se tt lement—in other words, it requires IDOC to do more than merely “comply.” For that reason, the court did not have auth ority to enter such a sanction.

III. C ONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision awarding $52,357.50 in fees and $1,741.35 in costs to Plainti ff s, and we REVERSE the decisi on of the district court14 Nos. 20-2236 & 20-2709

requiring IDOC to ensure that inmates receive audiological evaluations or re-evaluations within the timeframe ordered. We TERMINATE our stay of the district court’s order.