### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No s

. 19- 1145, 19

- 1375 & 19 -1978

A SHOOR R ASHO

, et al.

, Plaintiff s-Appell ees

,

v.

R OB J EFFREYS

, Director of the Illinois

Department of Corrections, and M ELVIN H INTON

, Acting Statewide Mental Health Supervisor

of the Illinois Department of Corrections,

Defendant s-Appell ants

.

____________________

Appeal s from the United States District Court

for the Central District of Illinois

.

No. 07-C-1298 — Michael M . Mihm

, Judge

.

____________________

A RGUED M AY 20, 2020

— D ECIDED J ANUARY 12, 2022

____________________

Before S YKES

, C hief Judge , and R IPPLE and K ANNE

, Circuit

Judges

.

S YKES

, C hief Judge

. Ashoor Rasho, on behalf of a class of

mentally ill inmates in the custody of the Illinois Department

of Corrections (“IDOC”), sued IDOC officials for failing to

provide constitutionally adequate mental

- health care. T he2 Nos. 19

- 1145, 19

- 1375 & 19 -1978

parties eventually reached a settleme nt requiring IDOC to

meet certain benchmarks across more than a dozen areas of

mental

- health treatment. A year later IDOC had failed to

substantially comply with several portions of the agreement,

so the plaintiffs re turned to the district court for relief

. Under the terms of the agreement , t he y needed to prove that

the defendants ’ breach itself caused an Eighth Amendment

violation.

The district judge held that the plaintiffs made such a

showing in five areas of mental

- health treatment and not ed

that IDOC’s deficiencies were primarily attributable to a

chronic, severe shortage of mental

- health staff. Because

IDOC had known about its staffing problem for several

years and displayed a “ lack of a sense of urgency ” in fixing

th e issue, the judge concluded that the defendants were

deliberately indifferent to the risk of harm associated with

inadequate mental

- health care. He entered a permanent

injunction requiring IDOC to hire and maintain a specifi c

minimum number of staff in multiple areas of care and

impo sing other specific requirements for the delivery of

mental

- health services

— all on a court

- imposed , mandatory

timetable

.

We reverse the district court’s order and vacate the injunction

. IDOC officials t ook reasonable steps to cure the

deficiencies identified by the plaintiffs

— in particular

, the

under staffing

— and t hose actions cannot be squared with the

judge’s finding of deliberate indifference. Even if th ose steps

were not fully successful, the ir reasonable effort to address a

known risk of harm shows that they did not reckless ly

disregard th at risk

.Nos. 19

- 1145, 19

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Th e court’s order also exceeds the remedial limitations

set by the Prison Litigation Reform Act (“PLRA”) . In the

corrections context, prospective remedies must be “ narrowly

drawn, extend [] no further than necessary to correct the

violation of the Federal right, and [be] the least intrusive

means necessary to correct the violation of the Federal

right .” 18 U.S.C. § 3626(a)(1)(A). The permanent injunction

goes well beyond these bounds by prescribing spec ific

staffing levels and treatment timelines without evidence that

such requirements go no further than necessary to correct an

Eighth Amendment violation

.

I. Background

The details of this lengthy litigation are largely irrelevant

for present purposes. Here are the basics: in 2007 Rasho filed

a pro se § 1983 complaint against several IDOC officials

claiming that IDOC’s treatment of his mental illness was

constitutionally deficient in violat ion of t he Eighth Amendment. 1 With the help of counsel, Rasho amended his complaint to assert the same claim on behalf of a p roposed class

of all mentally ill IDOC inmates. The class

- action complaint

sought declaratory and injunctive relief compelling IDOC to

ove rhaul its system of mental

- health care. After the district

court certified the class, the parties spent years in protracted

settlement negotiations.

The parties entered into a comprehensive settlement

agreement i n 2016 , almost ten years after the suit was filed

. The agreement requires IDOC to make dozens of changes to

1 The identity of the defendants has changed over time. The current

defendants are IDOC’s Director and Acting Statewide Mental Health

Supervisor

.4 Nos. 19

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its mental

- healthcare system, including implementing a

revised screening system for new inmates, providing individualized mental

- health treatment plans, and augmenting

mental

- health staff. Th e parties appointed Dr. Pablo Stewart

to monitor IDOC’s compliance. They also agreed to cabin the

judge’s authority to fashion relief for violations of the

agreement : “[A]ny order granting such relief must include a

finding that the relief sought is narrowly drawn, extends no

further than is necessary to correct the violation of the

federal right, and is the least intrusive means for doing so.”

This remedial constraint , lifte d verbatim from the PLRA

, effectively p rohibits judicial enforcement unless IDOC’s

noncompliance causes an Eighth Amendment violation

— the

“federal right” at issue. The district court retained jurisdiction to oversee compliance with the agreement

. 2

Dr. Ste wart’s first annual report, released in June 2017,

sharply criticized IDOC’s progress in fulfilling the agreement. After analyzing IDOC’s compliance in exacting detail,

Dr. Stewart reached a blunt bottom line: “[T]he lack and

quality of psychiatric service s negatively impacts all aspects

of the Settlement and contributes to IDOC being non

compliant in the vast majority of areas of the Settlement.”

Stewart’s concerns persisted for several months, leading him

2 As such, the agreement is more accurately described as a consent

decree rather than a private settlement. See Doe v. Cook County , 798 F.3d

558, 562

– 63 (7th Cir. 2015) (explaining that under 18 U.S.C. § 3626, “if an

agreement is judicially enforceable

— that is, if a violation means anything other than restarting the litigation on the merits

— the agreement

must be treated as a ‘consent decree’”). Th at distinction is irrelevant for

our purposes, so we use the terms “settl ement” or “agreement” for

consistency with the nomenclature adopted by the parties and the

district court.Nos. 19

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to write to Dr. Melvin Hinton, IDOC’s Chief of Men tal

Health, that IDOC was “in a state of emergency.” On the

heels of this letter, the plaintiffs moved for a preliminary

injunction, focusing on IDOC’s noncompliance in five areas

identified by Dr. Stewart: mental

- health evaluations, treatment planning, me dication management, crisis care, and

segregation care.

The judge held an evidentiary hearing on the plaintiffs’

motion over six days in late 2017 and early 2018. Witness

testimony revealed that IDOC had clearly made progress in

revamping its mental

- health care system : it spent $45 million

to build new residential treatment units at several facilities

and $75 million to develop a new data system for intake

assessments ; it procured another $150 million to construct a

new inpatient facility; it delivered menta l- health training to

its entire staff; and it hired administrative personnel to

coordinate inmate care. Nevertheless, witnesses for both the

plaintiffs and defendants opined that IDOC still could not

provide treatment at the level required under the agreement.

Undisputed testimony attributed IDOC’s shortcomings to

system ic shortages in mental

- health staff. Dr. Hinton admitted that IDOC budgeted for 65 psychiatrists but currently

employed less than half that many.

In Ma y 2018 t he judge entered a preliminary injunction.

He concluded that IDOC’s “persistent” staffing deficiencies

had created an “emergency situation” and that IDOC’s

failure to address those deficiencies

— despite being aware of

them for “an unreasonable perio d of time”

— amounted to

deliberate indifference. He therefore ordered IDOC to take

measures to address the five areas identified by the plaintiffs6 Nos. 19

- 1145, 19

- 1375 & 19 -1978

and to “provide sufficient staff” to remedy the constitutional

violations in those areas.

Two days later Dr. S tewart delivered his second annual

report, again finding that IDOC was no n compli ant in the

same areas. The plaintiffs moved for a permanent injunction

on the same grounds as the preliminary injunction.

Over several days in August and September 2018, the

ju dge held an evidentiary hearing on the permanent

injunction motion. The parties agreed that pursuant to

Rule 65(a)(2) of the Federal Rules of Civil Procedure, the

judge should also consider the evidence presented at the

preliminary

- injunction hearing. The new evidence told a

familiar story: i nadequate staffing had caus ed backlogs in

inmate care, failures to tailor treatment to individual needs,

and an overall inability to satisfy the terms of the settlement

in the same five areas.

Still, the evidence also showed that the situation had improved in the first half of 2018. Importantly

, IDOC had taken

several steps to cure the personnel shortage , including :

• i ncreasing the number of full

- time

- equivalent psychiatric providers from 33.53 to 50.55 and qualified

mental

- health professionals from 111 to 117; 3

• a uthorizing unlimited overtime;

• p artnering with a local universit y to provide psychiatric care;

• e xpanding use of telepsychiatry;

3 “Full

- time equivalent” or “FTE” describes an employee who works

40 hours per week. A 0.5 FTE employee, for example, works 20 hours per

week.Nos. 19

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- 1375 & 19 -1978 7

• o ffering travel stipends and bonuses for providers

willing to take on extra work at different facilities ;

• s etting salaries at the 90th percentile nationwide; and

• c oordinating with state officials to streamline the licensing process for IDOC psychiatric providers.

These measures, along with revisions to care procedures,

contributed to a decrease in treatment backlogs at several

facilities.

IDOC witnesses also testified about the difficulties of recruiting mental

- health professionals in the corrections field

. A natio nwide shortage left 57% of Illinois counties without

any such professionals

, and it was hard to persuade medical

professionals to move (or commute) from major cities to

work in the c hallenging corrections environment . As a

result

, Wexford Health Sources, I DOC’s staffing vendor,

struggl ed to meet recruitment goals.

The judge granted the plaintiffs’ motion for a permanent

injunction. 4 Rasho v. Walker , 376 F. Supp. 3d 888, 892

– 93

(C.D. Ill. 2019). Before addressing IDOC’s deficiencies in the

five specific areas at issue, the judge emphasized that his

finding was “based generally on the fact that there is insufficient mental health staffing at

... IDOC.” Id. at 901. Although

he acknowledged that IDOC had made some impr ovements,

he found that the use of unlimited overtime was “unsustain4 In addition to the initial order, the judge also issued a slightly modified

order in response to IDOC’s postjudgment motion and a final order in

response to the plaintiffs’ motion that the orders be altered to comply

with Rule 65(d) of the Federal Rules of Ci vil Procedure. IDOC appealed

from all three orders. We consolidated the appeals and focus on the

April 22, 2019 final order, reported at Rasho v. Walker , 376 F. Supp. 3d 888

(C.D. Ill. 2019).8 Nos. 19

- 1145, 19

- 1375 & 19 -1978

able” and that IDOC’s “efforts have been generally ineffective

— and have gone on far too long without any significant

attempt to adapt or modify based on the knowledge gained

from their rec ruiting efforts.” Id. at 906

– 07. The judge also

criticized IDOC for continuing to rely on Wexford and for

exhibiting an “overall lack of a sense of urgency” in delivering adequate mental

- health care. Id. at 916. As the judge saw

it, this a ll added up to de liberate indifference

.

Against this back drop , the judge issued an extensive injunction addressing staffing and the five areas at issue. The

essential terms of the order are summarized as follows :

(1) Staffing. Within 90 days, IDOC must employ

“7 Site Mental Health Service Directors ; 12 Mental Health

Unit Directors; [16] Staff Psychologists; 142.5 Qualified

Mental Health Professionals; 102 Behavioral Health

Technicians; 54.5 Registered Nurses

— Mental Health;

24 Staff Assistants; 85.5 Psychiatric Provider s; 1 Director

of Nursing

— Psychiatric; [and] 5 Recreational Therapists.” Id. at 919– 20. The order include s job descriptions

for several of these positions and require s follow

- up reporting and evaluation. The judge drew the staffing

numbers from a 2014 Remed ial Staffing Plan that IDOC

voluntarily offered during settlement negotiations. Id. at

919–21.

(2) Crisis care. IDOC may use c risis care only for a patient dangerous to himself or others or upon a finding by

a mental

- health professional that no less restrictive

treatment is appropriate. A mental

- health professional

must conduct a confidential, daily assessment of a patient’s progress and update the patient’s treatment plan

no later than the t ime of discharge. For patients who doNos. 19

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- 1375 & 19 -1978 9

not stabilize, the treatment team must establish a plan to

provide a higher level of care or explain in writing why

establishing such a plan is not appropriate. Id. at 922–23.

(3) Segregation. A mental

- health professio nal must

assess and document an inmate’s condition upon placement in segregation. For any inmate in segregation for

16 days or more

, IDOC must conduct rounds at least every 7 days and provide out

- of

- cell time. If an inmate in

segregation for more than 60 days refuse s out

- of

- cell

time, a mental

- health professional must evaluate the inmate to determine the risk of deteriorating mental health.

Id. at 923–24.

(4) Medication. Inmates prescribed psychotropic

medication must be “ evalu ated by a psychiatric provider

at regular intervals consistent with constitutional standards.” Id. at 924. IDOC must administer medications in a

manner that provides “reasonable assurance” that the

medications are actually delivered

. Id. ; id. at 924 –25.

(5) Evaluations and treatment plans. IDOC must

provide a ll class members an individualized treatment

plan that includes long

- and short

- term objectives and

regular review s with the patient. Id. at 925.

II. Discussion

The de fendants challenge the judge’s ruling that the

shortcomings in IDOC’s performance under the settlement

agreement amount to an Eighth Amendment violation

. They

also challenge the scope of the injunction under the terms of

the agreement and the PLRA. We review the judge’s factual

finding s for clear error

, ADT Sec

. Servs., Inc. v. Lisle

– Woodridge Fire Prot

. Dist. , 724 F.3d 854, 863 (7th Cir. 2013),10 Nos. 19

- 1145, 19

- 1375 & 19 -1978

including his finding of deliberate indifferen ce

, see Lockett v.

Bonson , 937 F.3d 1016, 1023 (7th Cir. 2019) (“ Whether a

prison official acted with the requisite state of mind ‘ is a

question of fact subject to demonstration in the usual ways,

including inference from circumstantial evidence. ’” (quoting

Farmer v. Brennan , 511 U .S. 825, 842 (1994))). We review a

decision to enter a permanent injunction for abuse of discretion

, Stone v. Signode Indus

. Grp. LLC , 943 F.3d 381, 384 (7th

Cir. 2019), but a legal error is necessarily an abuse of discretion

, Westefer v. Neal , 682 F.3d 679, 683 (7th Cir. 2012).

A. Deliberate Indifference

Everyone agrees that each of t he plaintiffs suffer s from

an objectively serious me dical condition

— here, mental

illness

— which is the first element of an Eighth Amendment

claim premised on inadequate prison healthcare

. The parties’ dispute centers on whether the IDOC officials were

deliberately indifferent to th e plaintiffs’ medical condition.

Lockett , 937 F.3d at 1022. Deliberate indifference is a subjective mental state; the official must have actually known of

and consciously disregarded a substantial risk of harm.

Petties v. Carter , 836 F.3d 722, 728 (7th Cir. 2016) (en banc).

This is a high bar “because it requires a showing [of] something approaching a total unconcern for the prisoner’s

welfare in the face of serious risks.” Rosario v. Brawn

,

670 F.3d 816, 821 (7th Cir. 2012) (quotation marks omitted ).

Evidence tha t the d efendant responded reasonably to the

risk, even if he was ultimately unsuccessful in preventing

the harm, negates an assertion of deliberate indifference.

Farmer , 511 U.S. at 844; Peate v. McCann

, 294 F.3d 879, 882

(7th Cir. 2002); see also Sinn v. Lemmon , 911 F.3d 412, 423–24

(7th Cir. 2018) (holding that no reasonable juror could inferNos. 19

- 1145, 19

- 1375 & 19 -1978 11

deliberate indifference where prison officials took sensible

steps to address unsafe prison conditions). Similarly

, “the

mere failure of the prison official to choose the best course of

action does not amount to a constitutional violation.” Peate

,

294 F.3d at 882.

The defendants maintain that the judge effectively ignor ed th e subjective element . Th is c ase obviously involves a

c laim of systemically inadequate prison healthcare

, which

the judge referred to as a “second category of deliberate

indifference claim [] .” Rasho , 376 F. Supp. 3d at 914. T he

defendant s read this statement as taking the subjective

element off the table; th ey contend that the judge engaged in

a solely objective analysis. We see it diff erently

. The subjective state

- of

- mind element applies to claims of isolated

incidents of indifference and pervasive deficiencies in prison

medical treatment

, and t he judge recognized as much . H is

innocuous reference to a “second category” of claims

— language that appears in our own caselaw, e.g.

, Phillips v.

Sheriff of Cook Cnty

. , 828 F.3d 541, 554 (7th Cir. 2016)— merely

invoked the well

- settled pr inciple that while a single negligen t act cannot support an inference of deliberate indifference, persistence in a course of action known to be

ineffective can, see Whiting v. Wexford Health Sources, Inc.

,

839 F.3d 658, 662–63 (7th Cir. 2016).

Although the judg e recited the correct legal standard, we

agr ee with the defendants that the record does not support

his finding of deliberate indifference. To the contrary, the

evidence establishes that IDOC made reasonable effort s to

cure the deficiencies in the five areas identified in the plaintiffs’ claim and to alleviat e the staffing shortage. These

include increas ing the number of psychiatric providers

,12 Nos. 19

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- 1375 & 19 -1978

authorizing unlimited overtime

, paying travel stipends and

supercompetitiv e salaries, and increasing the use of telepsychiatry (among other steps)

. These actions by IDOC administrators demonstrate a commitment to addressing the

problem

— the antithesis of the callous disregard required to

make out an Eighth Amendment claim. See, e.g.

, Rosario

,

670 F.3d at 822 ( affirming a grant of summary judgment to

officers where their actions were “not perfect” but demonstrated an “overall picture” of “protection and compassion”).

To be sure, IDOC’s efforts fell short : the prison system

ha s not yet provided the level of care prescribed by the

settlement, nor ha s it hit the personnel ta rgets laid out in its

2014 Remedial Staffing Plan. But that does not equate to a

constitutional violation. For one thing, there is no evidence

that the terms of the settlement and IDOC’s staffing plan

matched the constitutional floor, an issue we address b elow.

But even assuming IDOC’s goals correspond ed to the Eighth

Amendment minimum s, the defendants cannot have been

deliberately indifferent because they under took reasonable

measures to achieve those goals

, even though they were

ultimately unsuccessful

. Peate , 294 F.3d at 882.

T he judge was wrong to fault the defendants for their

“unsustainable” use of overtime, continued reliance on

Wexford for staffing, and “lack of a sense of urgency” in

complying with the settlement. It is always possibl e to do

more or move faster, but the existence of policies that may

have been more effective does not mean an official recklessly

disregarded th e risk of harm. Smith v. Sangamon Cnty.

Sheriff’s Dep’t , 715 F.3d 188, 191 (7th Cir. 2013); see also

Lockett , 937 F.3d at 1022–25 (explaining that a nurse is notNos. 19

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necessarily liable for an inmate’s chronic pain, even if he

could have prescribed more powerful opiates); Rosario

,

670 F.3d at 821–22 (holding that an officer is not liable for an

arrestee’s suic ide, even if he could have done more to prevent the arrestee’s access to a razor blade); Frake v. City of

Chicago , 210 F.3d 779, 782 (7th Cir. 2000) (explaining that a

jail is not necessarily liable for a detainee’s suicide, even if it

could have designed cells differently to decrease the risk of

suicide). Prison o fficials undoubtedly could have done more

to address the deficiencies in IDOC’s mental

- health services

,

but their failure to pursue additional options does not

amount to deliberate indifference. See Rosario , 670 F.3d at

821–22 (noting officials may “escape liability even if they did

not take perfect action”).

Nor is this a case in which the prison official s persisted in

taking steps that they kn ew were insufficient to prevent the

harm

. See Petties , 836 F.3d at 730–31. It was reasonable to

expect that paying higher salaries and offering bonuses

would attract more mental

- health person ne l, just as it was

reasonable to believe that expanding the use of telepsych iatry and paying travel stipends would enable them to more

efficiently deploy the ir limited resources. Indeed, the record

shows that IDOC’s multifaceted approach led to reduced

backlogs in mental

- health treatment and a substantial increase in the number of psychiatric providers

— even though

its efforts ultimately fell short

. Put simply, IDOC officials

took multiple reasonable steps to fix the complex problem of

understaffing in mental

- health services

, so they canno t have

been deliberately indifferent. It was err or to find otherwise.14 Nos. 19

- 1145, 19

- 1375 & 19 -1978

B. Scope of Injunction

The PLRA constrains a court’s authority to enter an injunction with respect to prison conditions: “ The court shall

not grant or approve any prospective relief unless the court

finds that 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. ” § 3626(a)(1)(A). The Supr eme

Court ha s repeatedly emphasized that prison administrators

have substantial discretion over the institutions they manage. See , e .g.

, Florence v. Bd. of Chosen Freeholders of Cnty. of

Burlington , 566 U.S. 318, 326 (2012). We have done the same.

See

, e.g

. , Mays v. Dart , 974 F.3d 810, 820–21 (7th Cir. 2020).

This principle is embodied in th e PLRA’s limit on remedies

. Westefer , 682 F.3d at 683.

Our decision in Westefer illustrates how § 3626(a)(1)(A)

works in practice. After a group of inmates brought a due

process challeng e to the procedure IDOC used to transfer

prisoners to supermax facilities, IDOC voluntarily submitted

to the court a “Ten– Point Plan” proposing revis ions to the

transfer process. Id. at 682. The district court used the Plan as

a model for its remedial order, “incorporating it almost

wholesale into a detailed 16– point injunction.” Id. Notably,

just a few years before

, the Supreme Court had up held a

scheme similar to the Ten

– Point Plan against a due

- process

claim

. I d. at 683 ( citing Wilkinson v. Austin

, 545 U.S. 209, 230

(2005)). Among other things

, the injunction required IDOC

to provide 48- hour notice before a transfe r hearing and to

hold a hearing within 10 or 30 days of transfer (depending

on the type of transferee). Id. at 682–83.Nos. 19

- 1145, 19

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We held that the injunction went well beyond the limits

imposed by the PLRA, explain ing that the judge had “mistakenly conflated what is constitutionally adequate to satisfy

due process with what is constitutionally required .” Id. at

683–84. While the Supreme Court had held that a 24- hour

prehearing notice is constitutionally required

, the i njunction

violated the PLRA’s narrow

- tailoring requirement in mandating 48- hour notice. Id. at 684. Likewise, setting a specific

10- or 30-day window for transfer hearings exceeded the

constitutionally required “reasonable time” for such a

hearing and in d oing so defied the PLRA’s least

- intrusive

means prong. Id. at 684– 85. It did not matter that the injunction included “hedging ‘whenever possible’ language” in its

mandate; the PLRA requires that courts give prison administrators wide latitude to set constitutionally adequate procedures. Id. at 685. We summarized:

In short, the injunction goes well beyond what

the Supreme Court has said is constitutionally

required. By incorporating a highly specific

notice

- and

- hearing system into the injunction,

the district court has in effect established the

details of that syste m as constitutional requirements. This is not the narrow tailoring

that the PLRA requires. It is up to IDOC to

craft transfer

- review procedures that meet the

requirements of due process. The court should

do no more than to order IDOC officials to do

so in general terms and to verify that the plan

they submit satisfies the relevant constitutional

standards.

Id. at 686.16 Nos. 19

- 1145, 19

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The injunction here suffers from the same infirmities as

the one we vacated in Westefer

. Most egregiously, the judge

ordered IDOC to hire and maintain precise numbers and

types of personnel: “7 Site Mental Health Service Directors ;

12 Mental Health Unit Directors; [16] Staff Psychologists;

142.5 Qualified Mental Health Professionals; 102 Behavioral

Health Technicians; 54.5 Registered Nurses

— Mental Health;

24 Staff Assistants; 85.5 Psychiatric Providers; 1 Director of

Nursing

— Psychiatric; [and] 5 Recreational Therapists.” This

degree of specificity contravenes the PLRA’s least

- intrusive

means requirement. Could IDOC have prov ided constitutionally adequate care with 85 Psychiatric Providers instead

of 85.5? What about using 103 Behavioral Health Technicians

but only 22 Staff Assistants ? Could IDOC continue to authorize unlimited overtime and expanded telepsychiatry

— practices th at had a proven effect of reducing treatment

backlogs? There is no evidence in the record establishing

that these specific numbers correspond to the constitutional

floor, yet the PLRA demands that injunctive relief “extend

no further” than necessary to rem edy the constitutional

violation. By exceeding that limit ation

, the judge’s order

impermissibly strips IDOC officials of the flexibility necessary to adopt and implement policies that balance prison

resources, safety concerns, and inmate health.

The judge’s error goes beyond staffing too. The injunction requires, for example, that class members in segregation

for 16 days or more be examined by mental

- health staff at

least every 7 days. That may be a valuable way of preventing

the de terioration of a segregated inmate’s mental health, but

the Eighth Amendment does not require the most effective

solution

. Rosario , 670 F.3d at 822; see also Ball v. LeBlanc

,

792 F.3d 584, 599 (5th Cir. 2015) (holding that an injunctionNos. 19

- 1145, 19

- 1375 & 19 -1978 17

requiring air conditioning to decrease prison cell temperature violated the PLRA because the “ plaintiffs are not entitled to the most effective available remedy; they are entitled

to a remedy that e liminates the constitutional injury ” (citing

Westefer , 682 F.3d at 683–84) ). As in Westefer

, the judge

“mistakenly conflated what is constitutionally adequate

... with what is constitutionally required ” and in doing so

overstepped the bounds of the PLRA. 682 F.3d at 683– 84.

The judge held that Westefer is inapplicable for two reasons. First, he noted that “the record here demonstrates a

long history of the [d] efendants’ non

- compliance with

various terms they had agreed upon.” Rasho , 376 F. Supp. 3d

at 918. The judge did not explain why he thought that the

history of noncompliance mattered

. It doesn’t ; or more

precisely

, it doesn’ t make Westefer inapplicable or dilute the

PLRA’s remedial limitations

. The PLRA applies of its own

force and in full since the case involves “prison conditions,”

§ 3626(a)(1)(A), and by dint of its inclusion in the settlement ’s remedial limits

.

Second, the judge stated that the “ [d] efendants’ proposal

is wholly deficient in addressing their constitutional violations.” Rasho , 376 F. Supp. 3d at 918. The defendants’ proposal, however, would have required them to remedy the

alleged violation “in general terms” in accordance with our

instructions in Westefer , 682 F.3d at 686. And even if the

proposal had been lacking

, the judge was not free to go

beyond the limits imposed by the PLRA in crafting an

injunction

.

We do not mean to say that an injunction impos ing a

specific numeric target automatically violates the PLRA. In

Brown v. Plata , 563 U.S. 493, 538–41 (2011), the Supreme18 Nos. 19

- 1145, 19

- 1375 & 19 -1978

Court held that an order requ iring California to reduce its

prison population to 137.5% of the prison facilities ’ design

capacity satisfied the PLRA’s narrow

- tailoring requirement.

Critically, however, t he district court heard from multiple

expert witnesses who testified that a 130% limit “was necessary to remedy the constitutional violations” and then

adjust ed that metric upward “in light of the caution and

restraint required by the PLRA.” Id. at 540 (quotation marks

omitted). Moreover, the order did not req uire “achiev [ing]

this reduction in any particular manner” but rather “ordered

the State to formulate a plan for compliance and submit its

plan for approval by the court. ” Id. at 510. Doing so gave

California “substantial flexibility” to reach its goal. Id

. at 532.

In contrast to Brown

, here the judge imposed specific

benchmarks lifted from the settlement and IDOC’s 2014

Remedial Staffing Plan without evidence that those plans

matched the constitutional floor. In fact

, the Staffing Plan

explicitly stated that it set staffing at levels sufficient to

exceed the constitutional minimum

. Nor did the judge impose staffing targets “in a manner that [left] much to

[IDOC’s] discretion,” id. at 533; instead, he prescribed the

exact numbers, types, and duties of IDOC personnel. That

can hardly be the least intrusive means of correcting a

constitutional violation

.

III. Conclusion

IDOC o fficials took multiple re asonable steps to cure the

staffing shortage and improve mental

- health services in the

five areas at issue in this claim. Those actions demonstrate

due regard for the harms imposed by inadequate mental

health care, so the judge’s finding of deliberat e indi fferen ce

was error. In addition, and as an independent reversibleNos. 19

- 1145, 19

- 1375 & 19 -1978 19

error, the scope of the injunction exceeded the bounds set by

the PLRA. Accordingly, we R EVERSE the district court’s order

and V ACATE the permanent injunction in its entirety

.20 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

R IPPLE

, Circuit Judge

, dissenting. For more than a decade,

Ashoor Rasho, as representative of a class of mentally ill Illi

‐

nois prisoners, has been litigating the deficiencies of the Illi

‐

nois Department of Corrections (“IDOC”) in the delivery of

mental health care to its inmate population. Although the par

‐

ties reached a comprehensive, court

‐ approved settlement

agreement in May 2016 that called for increased staffin g, im

‐ proved processes, and updated facilities across service areas,

IDOC was slow to implement changes. The monitor repeat

‐ edly reported the core problem: an overwhelming shortage of

staff. It was not until IDOC was faced with the threat of

court

‐ enforc ed remedies that it acted with any seriousness or

promptness. The district court found, however, that these

eleventh

‐ hour efforts were motivated at least in part by the

threat of court intervention, that they were not sustainable,

and that IDOC administrators knew that they were not sus

‐

tainable. After considering the record as a whole, the district

court concluded that “systemic and gross deficiencies in staff

‐ ing” had resulted in the denial of “access to adequate and con

‐ stitutionally required care” that violated the Eighth Amend

‐

ment. 1 These findings were not clearly erroneous. Moreover,

the district court’s permanent injunction was limited to curing

the constitutional violation and was no broader than neces

‐

sary to achieve this purpose. I therefore respectfully dissent.

1 R.2460 at 41 (quoting Wellman v. Faulkner

, 715 F.2d 269, 272 (7th Cir.

1983)).Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 21

I

Because deliberate indifference is a factual determination, 2

I set forth in some detail the facts leading to the district court’s

permanent injunction order.

In response to Mr. Rasho’s complaint alleging constitu

‐

tional violations in the delivery of mental health services, the

parties entered a comprehensive settlement agreement

(“Agreement”) in May 2016. The Agreement addressed nu

‐

merous areas where IDOC had been deficient including: the

quality and timing of initial intakes; the development and re

‐

vision of treatment plans; treatment space; staffing; confiden

‐ tiality; and the housing and discipline of seriously mentally

ill inmates. The Agreement provided for the hiring of a mon

‐

itor, Dr. Pablo Stewart, to evaluate IDOC’s progress, provide

updates, and prepare annual reports.

Dr. Stewart submitted his first annual report in May 2017.

The report noted the substantial cooperation of the leadership

and staff at IDOC but concluded that IDOC still was strug

‐ gling to meet the requirements of the Agreement. The Execu

‐

tive Summary of the report captures those shortcomings:

Among IDOC’s challenges is the grossly insuf

‐

ficient and extremely poor quality of psychiatric

services. This overwhelming shortage and lack

of standards undermines all of the efforts of

IDOC to meet the first

‐ year requirements of the

Settlement. These psychiatric services

2 See Lockett v. Bonson

, 937 F.3d 1016, 1023 (7th Cir. 2019) (observing that

“[w]hether a prison official acted with the requisite state of mind”—delib

‐

erate indifference—“is a question of fact subject to demonstration in the

usual ways” (quoting Farmer v. Brennan

, 511 U.S. 825, 842 (1994))).22 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

deficiencies include but are not limited to prob

‐

lems with the proper continuation of medica

‐

tions for offenders entering IDOC, lack of timely

follow

‐ up for offenders prescribed psycho

‐ tropic medication, dangerous practices related

to the use of psychotropic medications includ

‐ ing those offenders on forced medication, lack

of following standard protocols for ascertaining

side effects, extreme delays in obtaining psychi

‐

atric evaluations, non

‐ participation of psychia

‐

trists in the treatment planning process, lack of

timely psychiatric follow up for offenders as

‐ signed to crisis beds, and problems related to

those offenders designated as requiring inpa

‐

tient level of psychiatric services. Of note, the

overall quality of the psychiatric services pro

‐

vided to the mentally ill offenders of IDOC is

exceedingly poor and often times dangerous.

IDOC leadership is well aware of the problems

related to the insufficient amount of psychiatric

services and has taken decisive action to ad

‐

dress this issue, but this has not yet been effec

‐

tive. At the time of the submission of this report,

however, the lack and quality of psychiatric ser

‐

vices negatively impacts all aspects of the Settle

‐

ment and contributes to IDOC being non

‐ com

‐ pliant in the vast majority of areas of the Settle

‐

ment. 3

3 R.1373 at 10.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 23

As my colleagues note, Dr. Stewart’s concerns persisted

over the next several months. In October 2017, these concerns

led him to write to Dr. Melvin Hinton, IDOC’s Chief of Mental

Health, that IDOC was “in a state of emergency.” 4 In the same

letter, Dr. Stewart addressed IDOC’s increased use of telepsy

‐ chiatry to solve the mental health crises. Dr. Stewart ex

‐ plained that telepsychiatry was not authorized for use in a

number of areas: for “initiating treatment,” for “evaluating

patients in crisis,” or for treating patients with some physical

and cognitive impairments. 5 Moreover, although telepsychia

‐

try could be one tool in the “overall solution, it [wa]s not the

solution in and of itself. Any solution to this emergency nec

‐ essarily involve[d] the hiring of additional psychiatrists, psy

‐

chiatric nurse practitioners and/or primary care physicians.” 6

IDOC’s continued failures in the areas identified by

Dr. Stewart led the plaintiffs to file a motion to compel com

‐ pliance with the Agreement. They later amended this motion

to include a request for a preliminary injunction. The district

court heard testimony on the plaintiffs’ motion for six days in

late 2017 and early 2018. The evidence showe d that IDOC had

spent $45 million to build new residential treatment units at

several facilities and $75 million to develop a new data system

for intake assessments. It also had procured another $150 mil

‐

lion to construct a new inpatient facility. Finally, it had pro

‐

vided mental health t raining to its entire staff and had hired

administrative personnel to coordinate inmate care.

4 R.1559

‐ 2 at 3.

5 Id.

6 Id

.24 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

However, IDOC still was falling short in the provision of

mental health services due, in large part, to staffing shortages.

For instance, Dr. Hinton testified that IDOC employed less

than half of its budgeted number of psychiatrists. Indeed, “al

‐

most all of the medical doctors at the hearing clearly stated,

in one form or another, [that] the system in place to treat men

‐ tally ill inmates at the ID OC is in a state of emergency.” 7 Cred

‐ iting this testimony, the court concluded that IDOC was “un

‐

able to provide the constitutionally required care.” 8 The court

therefore entered a preliminary injunction. Although it de

‐

tailed the areas that IDOC needed to address, it did not set

specific, numeric goals that IDOC had to meet. Instead, it in

‐

structed that “[w]ithin 90 days of this order, Defendants shall

provide sufficient staff to address constitutional violations in

the five areas identified in this order”: medication, evalua

‐

tions, treatment plans, segregation, and crisis treatment. 9

Dr. Stewart’s Second Annual Report, filed in June 2018,

continued to sound the alarm regarding staffing levels. The

report first noted that the remedial targets set forth in May

2016 were “not sufficient to meet the requirements of the Set

‐

tlement Agreement.” 10 Moreover, IDOC had “never met its

staffing goals through the life of the Settlement Agreement.” 11

7 R.2070 at 13.

8 Id

. at 20.

9 Id. at 40.

10 R.2122 at 34.

11 Id.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 25

Shortly thereafter, the plaintiffs moved for a permanent

injunction. The court conducted a second evidentiary hearing,

in which it again heard testimony from numerous witnesses.

IDOC presented evidence of substantial expenditures on res

‐

idential treatment units at several locations; an increase in ad

‐

ministrative staff to coordinate s ervices; an increase in train

‐ ing provided to staff; and new operating procedures and ad

‐

ministrative directives. The evidence also showed that, be

‐

tween January 2018 and the permanent injunction hearing,

the Department had increased staffing for mental health from

33.53 to 50.55 full time equivalent providers and had in

‐

creased by six the number of qualified mental health profes

‐

sionals.

Nevertheless, the record contained evidence that lack of

staff continued to pose a serious problem. Specifically, when

asked whether the current staffing levels were adequate to

meet the needs of inmates, Dr. Hinton would not directly an

‐

swer the question. 12 There were efforts to shift staff “from one

area of concern to another” in order to establish that IDOC

was meeting the residents’ needs. 13 There also was testimony

from IDOC psychiatrists that, although there had been reduc

‐

tions in backlogs, these were due in large part to the use of

overtime, which not only “would be difficult to sustain,” but

created another “problem”—loss of good staff due to burn

‐

out. 14

12 See R.2372 at 47.

13 R.2460 at 27.

14 Id. at 23 (quoting R.2376 at 356, 1433

– 34).26 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

The district court granted the plaintiffs’ motion for a per

‐

manent injunction. Before addressing IDOC’s deficiencies in

the specific areas at issue, the court emphasized that its find

‐ ing was “based generally on the fact that there [wa]s insuffi

‐

cient mental health staffing at

... IDOC.” 15 Although it

acknowledged that IDOC had made some improvements, the

court found that the use of unlimited overtime was “unsus

‐

tainable,” 16 and that IDOC’s “efforts ha[d] been generally in

‐

effective—and ha[d] gone on far too long without any signif

‐

icant attempt to adapt or modify based on the knowledge

gained from their recruiting efforts.” 17 More importantly,

[e]ven with the additional mental health staff

hired after the preliminary injunction hearing,

the numbers associated with mental health pro

‐

viders [we]re deficient to provide the constitu

‐ tionally required care. In fact, the June 2018

monthly facility performance report showed

Wexford had failed to supply more than 10,000

hours of required clinical staff for that month. 18

The court further found that IDOC had been aware of

these deficiencies “for an unreasonable period of time, and

their failure to address these deficiencies amount[ed] to delib

‐

erate indifference.” 19 “While some efforts ha[d] been

15 R.2460 at 17.

16 Id

.

17 Id

. at 27.

18 Id. at 20.

19 Id

. at 27.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 27

successful, including the recent expansion of the use of

tele

‐ psychiatry, the Defendants ha[d] failed to achieve a min

‐

imum level of medical service to avoid the label of cruel and

unusual punishment.” 20

After reviewing the evidence, the court set forth the re

‐ quirements for establishing an Eighth Amendment violation:

“(1) the plaintiff ‘suffered an objectively serious harm that

presented a substantial risk to his safety,’ and (2) ‘the defend

‐

ants were deliberately indifferent to that risk.’” 21 Because

there was no doubt that the prisoners had presented evidence

of an objectively serious risk of harm, the court turned to the

subjective component:

The subjective component requires a plain

‐

tiff to “provide evidence that an official actually

knew of and disregarded a substantial risk of

harm.” Petties v. Carter

, 836 F.3d 722, 728 (7th

Cir. 2016)

... . In order to establish deliberate in

‐

difference, “a plaintiff does not need to show

that the official intended harm or believed that

harm would occur.” Id

. ... However, medical

malpractice, negligence, or even gross negli

‐

gence do not equate to deliberate indifference.

Johnson v. Doughty

, 433 F.3d 1001, 1013 (7th Cir.

2006)

... .

The Seventh Circuit has recognized claims of

systemic deficiencies in a prison’s health care fa

‐ cility as a second category of deliberate

20 Id. at 27

– 28.

21 Id. at 39 (quoting Minix v. Canarecci

, 597 F.3d 824, 831 (7th Cir. 2010)).28 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

indifference claims. Cleveland

‐ Perdue v. Brutsche

,

881 F.2d 427, 430–31 (7th Cir. 1989). In case of

alleged systemic deficiencies, deliberate indif

‐

ference can be demonstrated by “proving there

are such systemic and gross deficiencies in staff

‐ ing, facilities, equipment, or procedures that the

inmate population is effectively denied access

to adequate medical care.” Wellman

, 715 F.2d. at

272

... . The Seventh Circuit has concluded “that

a clear consensus had been reached indicating

that a prison official’s failure to remedy sys

‐

temic deficiencies in medical services akin to

those alleged in the present case constituted de

‐

liberate indifference to an inmate’s medical

needs.” Cleveland

‐ Perdue

, 881 F.2d at 431. 22

Although the record did show that IDOC had “recently

made efforts to address many of the problems associated with

the delivery of adequate mental health care,” the court “re

‐ main[ed] concerned with the overall lack of sense of ur

‐ gency.” 23 The problems, the court continued, dated “as far

back as 2014 when the Defendants created their own remedial

plan,” but they had yet “to fulfill any of their own staffing re

‐ quirements.” 24 They also had yet to meet many of the terms

of the Agreement. As a result, “[i]t [wa]s clear [that] mentally

ill inmates continue[d] to suffer as they wait[ed] for the IDOC

22 Id. at 41.

23 Id

. at 43

– 44.

24 Id.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 29

to do what they said they would do.” 25 Consequently, the dis

‐

trict court concluded that IDOC “knew of, and disregarded, a

substantial risk of harm to the Plaintiffs.” 26

After soliciting IDOC’s input regarding how to address

the constitutional deficiency, the district court ultimately con

‐

cluded that IDOC’s 2014 proposed staffing plan 27 provided a

sound basis for injunctive relief. Thus, the district court re

‐ quired that IDOC reach the staffing levels that, back in 2014,

IDOC itself had acknowledged were necessary. While this step

would not solve entirely the present violation, it would at

least require that IDOC make some forward progress toward

meeting minimal staffing requirements.

II

I now turn to the majority’s review of the district cou rt’s

finding of deliberate indifference. The majority initially ob

‐

serves the “high bar” set by the deliberate indifference stand

‐

ard, which “‘requires a showing [of] something approaching

a total unconcern for the prisoner’s welfare in the face of seri

‐

ous risks.’” Majority Op. 10 (citing Rosario v. Brawn

, 670 F.3d

816, 821 (7th Cir. 2012)). Thus, evidence that “the defendant

responded reasonably to the risk, even if he was ultimately un

‐

successful in preventing the harm, negates an assertion of de

‐

liberate indifference.” Id

. (emphasis added). The majority

acknowledges that the district court’s finding that this

25 Id

.

26 Id

.

27 “IDOC Proposed Remedial Plan” dated April 17, 2014 (“2014 Reme

‐

dial Staffing Plan”), was entered as an exhibit during the hearing on the

preliminary injunction. See R.1716, Exhibit and Witness List, Ex. 9.30 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

standard has been met is a factual one subject only to clear

error review. See id. 28

My colleagues believe, however, that the record cannot

support a finding of deliberate indifference. While “IDOC’s

efforts fell short” achieving the 2014 staffing levels, “that d[id]

not equate to a constitutional violation.” Id

. at 12. Even assum

‐ ing that the 2014 staffing levels represented the “constitu

‐

tional floor,” the majority continues, IDOC could not “have

been deliberately indifferent because [it] took reasonable

measures to achieve th ose goals, even though they were ulti

‐ mately unsuccessful.” Id

. (citing Peate v. McCann

, 294 F.3d 879,

882 (7th Cir. 2002)). “It is always possible to do more or move

faster,” it states, “but the existence of policies that may have

been more effective does not mean an official recklessly dis

‐ regarded the risk of harm.” Id

. at 12.

Respectfully, this conclusion both misreads the record and

fails to give sufficient deference to the district court’s factual

findings. First, the district court did not rely solely on the

staffing numbers in the 2014 remedial plan or the Agreement

to establish a constitutional violation. Rather, the district

court relied on the testimon y at the preliminary injunction

hearing that, despite the passage of significant time, IDOC did

not have the staffing necessary to provide psychiatric care to

all of the patients in it s system and that prisoners were not

getting the care they needed. 29 Moreover, despite some im

‐

provements made after the preliminary injunction order

28 Notably, my colleagues explicitly reject IDOC’s argument that the dis

‐

trict court applied an incorrect legal standard. See Majority Op. 11.

29 See R.2460 at 15

– 16.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 31

issued, the care still was “constitutionally deficient.” 30 “In

fact, the June 2018 monthly facility performance report

showed Wexford had failed to supply more than 10,000 hours

of required clinical staff for that month.” 31 Thus, the district

court did not simply look to target numbers; it looked instead

at the care that existing staff was providing and concluded

that the lack of staff was jeopardizing the welfare of the in

‐

mates.

The district court relied on relevant and probative evi

‐

dence in concluding IDOC officials were deliberately indiffer

‐

ent. In Wellman v. Faulkner

, 715 F.2d 269, 272 (7th Cir. 1983),

we addressed whether certain deficiencies in a prison’s pro

‐

vision of healthcare violated the Eighth Amendment. We ex

‐ plained:

As a practical matter, “deliberate indifference”

can be evidenced by “repeated examples of neg

‐ ligent acts which disclose a pattern of conduct

by the prison medical staff” or it can be demon

‐

strated by “proving there are such systemic and

gross deficiencies in staffing, facilities, equip

‐

ment, or procedures that the inmate population

is effectively denied access to adequate medical

care.”

Id. (quoting Ramos v. Lamm

, 639 F.2d 559, 575 (10th Cir. 1980));

cf. Whiting v. Wexford Health Sources, Inc.

, 839 F.3d 658, 663 (7th

Cir. 2016) (noting that “evidence sufficient to create a jury

question might include the obviousness of the risk from a

30 Id

. at 17.

31 Id

. at 20.32 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

particular course of medical treatment [and] the defendant’s

persistence in ‘a course of treatment known to be ineffective’”

(internal citations omitted)). Thus, prison officials’ knowledge

of ongoing deficiencies that seriously affect inmates’ health

bears directly on whether the deliberate indifference standard

has been met. The same is true of prison officials’ knowledge

that certain “remedial ” actions will not ameliorate the consti

‐

tutional violation.

Here, a district court, which had overseen the litigation for

more than a decade, conducted a comprehensive hearing

prior to the preliminary injunction and another hearing prior

to entry of the permanent injunction. It made specific credi

‐ bility findings with respect to th e administrators and the men

‐

tal health professionals testifying on behalf of IDOC. It

pointed to specific testimony that demonstrated that these of

‐

ficials knew that the new measures were not capable of meet

‐ ing the needs of the inmates, that they were not sustainable in

the long term, and that they would not cure effectively the

constitutional violations. See R.2460 at 19 (Dr. Hinton evading

the question whether IDOC’s staffing levels were “ade

‐ quate”); id

. at 23 (Psychologist Administrator at Pontiac ac

‐ knowledging that reduction in backlog was being effected

through “people com[ing] from other institutions

... and

... additional overtime” which would be “difficult to sustain”);

id. at 27 (“This colloquy betwe en Plaintiffs’ counsel and

Dr. Sim demonstrates the ongoing shift by the Defendants of

their limited staff resources from one area of concern to an

‐

other and the need to cover essential items by use of overtime.

This is simply unsustainable.”).

Nevertheless, the majority concludes that IDOC officials

“cannot have been deliberately indifferent” because theyNos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 33

“took multiple reasonable steps to fix the complex problem of

understaffing in mental

‐ health services.” Majority Op. 13.

This conclusion only can be reached by evaluating the reason

‐

ableness of IDOC’s actions in a temporal vacuum. Here, the

district court legitimately—and correctly—evaluated IDOC’s

actions in the context of what had come before: more than a

decade of failing to address seriously the constitutionally de

‐

ficient mental health care provided to inmates. The district

court also understood what would come after: loss of staff

and services due to the inability to sustain the financial and

human resource burden of overtime requ irements. When

IDOC’s actions are viewed through this lens—as the district

court certainly was entitled to do—they were not reasonable.

The district court concluded that IDOC had been recalcitrant

in addressing systemic problems in staffing until entry of the

preliminary injunction. See R.2460 at 27 (“There have un

‐ doubtedly been efforts on the part of the Defe ndants to ad

‐

dress the staffing needs regarding mental health; however,

these efforts have been generally ineffective—and have gone

on far too long without any significant attempt to adapt or

modify based on the knowledge gained from their recruit

‐

ment efforts.”). Once the preliminary injunction was entered,

there was a surge of activity, but IDOC officials knew their ac

‐

tions would not solve IDOC’s staffing issues, nor ensure the

delivery of constitutionally adequate care.

“Clear error is a deferential standard of review that only

merits reversal if ‘after reviewing the entire record, we are left

with the firm and definite conviction tha t a mistake has been

made.’” LAJIM, LLC v. Gen. Elec. Co.

, 917 F.3d 933, 946 (7th

Cir. 2019) (quoting United States v. Rangel

, 872 F.3d 815, 818

(7th Cir. 2017)). When IDOC’s recent “improvements” in the

delivery of services are evaluated according to the entire34 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

record, the district court’s conclusion that the IDOC officials

were deliberately indifferent is a sound one. It certainly does

not leave one with a “firm and definite conviction that a mis

‐

take has been made.”

III

The panel majority’s review of the scope of the district

court’s injunction also is cause for significant concern. Its par

‐

simonious attention to the statute’s language and to the sig

‐

nificant consensus of judicial decisions interpreting that lan

‐

guage sets our circuit on a lonely course. This solitary path

now before us puts us in conflict with the controlling prece

‐

dent of the Supreme Court and with the decisions of the other

circuits. It also will create needless ambiguity and frustration

for the district judges of our circuit who will have the unenvi

‐

able task of following its approach in future cases.

A.

The PLRA provides in relevant part:

Prospective 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. The

court shall not grant or approve any prospective

relief unless the court finds that such relief is

narrowly drawn, extends no further than neces

‐

sary to correct the violation of the Federal right,

and is the least intrusive means necessary to

correct the violation of the Federal right. The

court shall give substantial weight to any ad

‐

verse impact on public safety or the operation of

a criminal justice system caused by the relief.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 35

18 U.S.C. § 3626 (a)(1)(A). 32 As spelled out in the statutory lan

‐

guage, these requirements are to be read in harmony with the

traditional limitations on the equitable powers of the federal

courts: “Nothing in this section shall be construed

... to repeal

or detract from otherwise applicable limitations on the reme

‐

dial powers of the courts.” 18 U.S.C. § 3626(a)(1)(C). Conse

‐ quently, “the limitations on injunctive relief imposed by

... traditional equity practice remain in force in cases governed

by the PLRA. The PLRA only adds to the preexisting limits on

injunctive relief; it does not subtract from them.” Ga. Advoc.

Off. v. Jackson

, 4 F.4th 1200, 1209 (11th Cir. 2021). Traditional

principles for granting federal equitable relief therefore also

inform our understanding of the PLRA. A core traditional

principle is that a court’s task in fashioning equitable relief “is

to correct

... the condition that offends the Constitution”; “the

scope of the remedy is determined by the nature and extent

of the constitutional violation.” Milliken v. Bradley

, 418 U.S.

717, 738, 744 (1974) (internal quotation marks omitted). In the

words of one of our sister circuits, “the PLRA supercharges”

this traditional equitable principle:

While courts were already required to ensure

injunctions are no broader than necessary, the

PLRA emphasizes the importance of narrow tai

‐ loring in prison litigation by requiring courts to

make specific findings that “such relief is nar

‐ rowly drawn, extends no further than necessary

to correct the violation of the Federal right, and

is the least intrusive means necessary to correct

32 Courts frequently refer to this section as creating a “need

‐ narrow

‐

ness

‐ intrusiveness” standard.36 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

the violation of the Federal right.”

§ 3626(a)(1)(A).

Ga. Advoc. Off.

, 4 F.4th at 1209.

Although the PLRA undoubtedly sets a high bar, its stand

‐

ards are not designed for application in the abstract world of

appellate chambers but in the real

‐ world courtroom of the

practicing district judge dealing with very important human

problems and very real parties. We cannot attribute to Con

‐

gress the intent to create a practically unworkable standard

designed to frustrate the conscientious district court in the

performance of its already difficult duty. Indeed, the Supreme

Court has instructed that “[t]he PLRA should not be inter

‐ preted to place undue restrictions on the authority of federal

courts to fashion practical remedies when confronted with

complex and intractable constitutional violations.” Brown v.

Plata

, 563 U.S. 493, 526 (2011). Instead, “[c]ourts should pre

‐

sume that Congress was sensitive to the real

‐ world problems

faced by those who would remedy constitutional violations in

the prisons and that Congress did not leave prisoners without

a remedy for violations of their constitutional rights.” Id.

B.

1.

In assessing the district court’s decision, the panel major

‐ ity takes as its centerpiece our decision in Westefer v. Neal

, 682

F.3d 679 (7th Cir. 2012). In doing so, it asks that solid decision

to carry weight that it was not designed to, and ought not be

required to, bear. Westefer involved a prisoners’ due process

challenge to the method employed to assign them to a maxi

‐

mum

‐ security facility. After a bench trial, the district court

concluded that the procedures violated the prisoners’ rightsNos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 37

to due process. While the litigation was ongoing, IDOC had

reviewed its procedures and had submitted to the district

court a proposed ten

‐ point plan for revisions. The district

court then employed IDOC’s plan as the framework for its re

‐

medial order.

IDOC challenged the order on appeal, and we reversed.

We explained that the district court had “mistakenly con

‐

flated what is constitutionally adequate to satisfy due process

with what is constitutionally required.” Id

. at 683–84. The

plan, we continued, went far beyond the constitutional re

‐ quirements of “informal, nonadversarial due process” and

therefore could not “be reconciled with the PLRA’s require

‐

ment that injunctions in prison

‐ conditions cases must be nar

‐ rowly drawn and use the least intrusive means of correcting

the violation of the federal right.” Id

. at 684. We concluded:

By incorporating a highly specific no

‐

tice

‐ and

‐ hearing system into the injunction, the

district court has in effect established the details

of that system as constitutional requirements.

This is not the narrow tailoring that the PLRA

requires. It is up to IDOC to craft transfer

‐ re

‐

view procedures that meet the requirements of

due process. The court should do no more than

to order IDOC officials to do so in general terms

and to verify that the plan they submit satisfies

the relevant constitutional standards.

Id

. at 686.

Westefer is a thoughtful, straightforward application of the

core principle of equity practice in constitutional cases, “su

‐ percharge[d]” by the PLRA, Ga. Advoc. Off.

, 4 F.4th at 1209,38 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

that a federal court’s injunction should address only “the con

‐

dition that offends the Constitution,” Milliken

, 418 U.S. at 738.

In Westefer

, the district court attempted to restrict the reach of

its injunctive relief by basing it on IDOC’s own submission.

The court nevertheless erred by requiring a remedy that im

‐ plemented far more than required by the Constitution.

In the present case, the district court considered the

Westefer decision, but did not believe that case governed the

situation before it for two reasons: “First, the record here

demonstrates a long history of the Defendants’ non

‐ compli

‐

ance with various terms they had agreed upon. Second, given

this history of non

‐ compliance, Defendants’ proposal is

wholly deficient in addressing their constitutional viola

‐

tions.” 33 The panel majority faults the district court for this

conclusion; in its view, IDOC’s history of noncompliance is

not a relevant consideration here. See Majority Op. 17 (“The

judge did not explain why he thought that the history of non

‐ compliance mattered. It doesn’t; or more precisely, it doesn’t

make Westefer inapplicable or dilute the PLRA’s remedial lim

‐ itations.”). Respectfully, the precedent of the Supreme Court

and of the other circuits counsels otherwise.

Of key importance is the Supreme Court’s decision in

Brown v. Plata

, 563 U.S. 493 (2011). Plata involved consolidated

cases instituted by prisoners in California challenging various

aspects of their confinement. There was no question that the

constitutional violations were, in large part, rooted in over

‐ crowding, and the courts in both cases had taken a number of

33 R.2516 at 3.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 39

preliminary, remedial steps in an attempt to eliminate the

constitutional violations. As recounted by the Court,

[a]lthough both the revised plan of action in

Coleman and the appointment of the Receiver in

Plata were new developments in the courts’ re

‐

medial efforts, the basic plan to solve the crisis

through construction, hiring, and procedural re

‐

forms remained unchanged. These efforts had

been ongoing for years; the failed consent de

‐

cree in Plata had called for implementation of

new procedures and hiring of additional staff;

and the Coleman Special Master had issued over

70 orders directed at achieving a remedy

through construction, hiring, and procedural re

‐

forms. The Coleman Special Master and Plata Re

‐

ceiver were unable to provide assurance that

further, substantially similar efforts would yield

success absent a population reduction. Instead,

the Coleman Special Master explained that

“many of the clinical advances

... painfully ac

‐ complished over the past decade are slip

‐ sliding

away” as a result of overcrowding. And the

Plata Receiver indicated that, absent a reduction

in overcrowding, a successful remedial effort

could “all but bankrupt” the State of California.

Plata

, 563 U.S. at 515–16 (citation omitted).

The cases were consolidated and submitted to the same

three

‐judge panel for a determination of whether a reduction

in prison population should be ordered. After a fourteen

‐ day

hearing, the panel issued a lengthy opinion, with extensive

findings of fact, in which it “ordered California to reduce its40 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

prison population to 137.5% of the prisons’ design capacity

within two years.” Id

. at 509–10.

On review, the Supreme Court first had to determine

whether a three

‐judge panel had been properly convened.

The State asserted, among other arguments, that its “later re

‐

medial efforts should have been given more time to succeed,”

and consequently, it had not been given “a reasonable

amount of time to comply with the previous orders” as re

‐ quired by § 3626(a)(3)(A)(ii). Id

. at 515. The Court rejected this

argument, detailing the State’s failed actions and explaining:

Having engaged in remedial efforts for 5

years in Plata and 12 in Coleman

, the District

Courts were not required to wait to see whether

their more recent efforts would yield equal dis

‐ appointment. When a court attempts to remedy

an entrenched constitutional violation through

reform of a complex institution, such as this

statewide prison system, it may be necessary in

the ordinary course to issue multiple orders di

‐ recting and adjusting ongoing remedial efforts.

Each new order must be given a reasonable time

to succeed, but reasonableness must be assessed in

light of the entire history of the court ʹ s remedial ef

‐ forts

. ....

... A report filed by the Coleman Special

Master in July 2009 describes ongoing viola

‐

tions, including an “absence of timely access to

appropriate levels of care at every point in the

system.” A report filed by the Plata Receiver in

October 2010 likewise describes ongoing defi

‐

ciencies in the provision of medical care andNos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 41

concludes that there are simply “too many pris

‐

oners for the healthcare infrastructure.” The

Coleman and Plata courts acted reasonably when

they convened a three

‐judge court without fur

‐

ther delay.

Plata

, 563 U.S. at 516 (emphasis added) (citations omitted).

The Court was equally practical in assessing whether the

order was “narrowly drawn.” The Court explained that

“[w]hen a court is imposing a population limit, this means the

court must set the limit at the highest population consistent

with an efficacious remedy.” Id

. at 539. The Court then re

‐

counted the expert testimony explaining the rationale for how

much the population should be reduced and concluded that

[t]here [we]re

... no scientific tools available to

determine the precise population reduction nec

‐

essary to remedy a constitutional violation of

this sort. The three

‐ judge court made the most

precise determination it could in light of the rec

‐

ord before it. The PLRA’s narrow tailoring re

‐ quirement is satisfied so long as these equitable,

remedial judgments are made with the objective

of releasing the fewest possible prisoners con

‐

sistent with an efficacious remedy.

Id

. at 541 (emphasis added).

Plata therefore establishes that, even when acting within

the constraints of the PLRA, a district court’s approach to

fashioning a remedy may be informed by the history of both

the constitutional violation and of the failed efforts to solve

the problem through other means. Additionally, in choosing42 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

among possible remedial options, the district court’s choice

need not meet standards of scientific precision.

Cases from other circuits also make clear that the PLRA

allows district courts to consider not only the nature of the

constitutional violation but also the recalcitrance of the insti

‐

tutional defendant when evaluating the scope of the injunc

‐

tion. Benjamin v. Fraser

, for instance, involved the conditions

under which pretrial detainees were held in the city jails of

New York. Benjamin v. Fraser

, 343 F.3d 35 (2d Cir. 2003), over

‐

ruled on other grounds by Caiozzo v. Koreman

, 581 F.3d 63 (2d

Cir. 2009). The parties had entered into a consent decree

which included creation of an agency to monitor jail condi

‐

tions. Twenty

‐ one years later, the City defendants moved to

terminate the decree. In response the district court terminated

some parts of the decree but kept others in place. On appeal,

the Second Circuit reviewed each aspect of the injunction; its

discussion regarding unconstitutional sanitation conditions

at the jails is particularly instructive:

The district court found, and the City does

not contest, unconstitutionally unsanitary con

‐

ditions in various areas of the facilities. As one

remedy, the court ordered that all showers be

power washed with bleach quarterly. The City

contends that this requirement will damage its

newly renovated grouted

‐ tile showers. It also

contends that other remedial directives, such as

the requirement that showers be “thoroughly

cleaned and sanitized at least once daily,” are

sufficient to keep the showers in sanitary condi

‐

tion.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 43

But, as the City acknowledges, since 1995 the

DOC’s own internal policies have required that

showers be washed daily with sanitizing solu

‐

tion, and, as the district court observed, there is

no evidence that this cleaning regimen “is equal

to the task.” We, therefore, find no error in the

court’s conclusion that stronger remedial measures

were necessary and affirm the power

‐ washing re

‐ quirement

.

Id

. at 55 (emphasis added) (citations omitted).

Ineffectiveness and recalcitrance also played a role in the

First Circuit’s decision to uphold an injunction in Morales Fe

‐

liciano v. Rullan

, 378 F.3d 42 (1st Cir. 2004). Morales Feliciano

concerned the long

‐ term and ongoing failures of the Puerto

Rican prison system regarding delivery of healthcare to its in

‐

mate population. In 1998, the district court entered prospec

‐

tive injunctive relief that included “the proposed privatiza

‐

tion of medical and mental health care throughout the correc

‐

tional system.” Id

. at 45. Five years later, the Commonwealth

sought to vacate or terminate the injunction on the grounds

(among others) that the district court had failed to make the

necessary findings under the PLRA. The district court denied

relief, and the First Circuit affirmed.

The First Circuit observed that the PLRA mandates the ter

‐

mination of consent decrees unless the district court makes

specific findings, including finding that there is an ongoing

constitutional violation, as well as finding that the order “sat

‐

isfies the statutory narrowness

‐ need

‐ intrusiveness criteria.”

Id

. at 54. The court explained that “[t]he application of those

criteria is case

‐ specific and must be undertaken in light of

both the magnitude of existing constitutional violations and44 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

the available remedial alternatives.” Id

. In the case before it,

the court continued,

[t]he constitutional violations

... [we]re sub

‐

stantial in both scope and degree. They have de

‐

fied correction for more than two decades. The

district court has tried more conventional

measures, but found them wanting. It has af

‐

forded the Commonwealth ample opportunity

to bring preexisting mechanisms up to speed or

otherwise to correct the phalanx of problems. It

has witnessed the Commonwealth’s continued

inability to cure the constitutional infirmities

plaguing the delivery of health care in the cor

‐

rectional system. This record of abject failure mat

‐

ters in the narrowness

‐ need

‐ intrusiveness inquiry

.

Id. at 54–55 (emphasis added) (citing Benjamin

, 343 F.3d at 49).

With respect to the healthcare of inmates, “the level of im

‐

provement still f[ell] well short of bringing serious violations

into constitutional compliance.” Id

. at 55. “In light of these

facts,” the court had “no difficulty affirming the district

court ʹ s finding that a need for ongoing injunctive relief ex

‐ ist[ed].” Id

.

As to whether the relief was broader than necessary, the

court noted that, “ if this were the district court’s first attempt at

remediation ,” it likely would agree with the Commonwealth

that the remedy was overbroad. Id

. (emphasis added). How

‐

ever, the district court had “attempted narrower, less intru

‐

sive alternatives,” but those had failed.

For this reason, a more innovative remedy [wa]s

justifiable. The increased intrusiveness andNos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 45

broader scope of the privatization remedy is a

direct response to the unique need created by

the Commonwealth’s own failure—for more

than twenty years—to correct serious constitu

‐

tional inadequacies. Drastic times call for dras

‐

tic measures.

Id

.

The Ninth Circuit relied explicitly on Morales Feliciano in

upholding a district court’s remedial order in Armstrong v.

Brown

, 768 F.3d 975 (9th Cir. 2014). Disabled prisoners in the

California system filed the action in 1994, at which time the

district court concluded that the State was in violation of the

Americans with Disabilities Act and the Rehabilitation Act. In

response, the State produced a remedial plan intended to en

‐

sure that disabled inmates had access to programs and facili

‐

ties in California’s prisons. In March 2001, the district court

entered a permanent injunction directing enforcement of the

remedial plan. However, by 2007, “the State had failed to

bring its correctional facilities into compliance with the reme

‐

dial plan and the 2001 Injunction.” Id

. at 978. The district court

therefore entered a second injunction, which required the de

‐

fendants to “‘develop a system for holding wardens and

prison medical administrators accountable for compliance

with the Armstrong Remedial Plan and the orders of this

Court.’” Id

. This system was to “‘track the record of each in

‐

stitution and the conduct of individual staff members who are

not complying with these requirements.’” Id

.

In response to the 2007 injunction, the State issued a de

‐

tailed memo outlining how complaints were to be tracked and

investigated. Id

. In 2012, however, the plaintiffs still believed

that the State was not complying with the 2007 Injunction,46 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

and the plaintiffs asked the court to issue an order to show

cause why the State should not be held in contempt. The mo

‐

tion was accompanied by evidence that inmates were contin

‐ uing to be denied access to needed accommodations and that

the State had failed to investigate and record numerous al

‐ leged violations of the remedial plan. The district court con

‐

cluded that the 2007 Injunction may not have stated the re

‐ porting requirements clearly enough and therefore issued an

injunction clarifying the State’s obligations, explicitly requir

‐ ing “that the State investigate and ‘track all allegations of

non

‐ compliance with the [remedial plan] and the orders of

this Court.’” Id

. at 979.

The State appealed the modified injunction on several

grounds, including that it violated the PLRA. In affirming the

district court, the Ninth Circuit acknowledged that “the dis

‐

trict court gave the State several specific instructions on how

to implement its accountability system,” but nevertheless

concluded that the district court’s actions were “appropriate

here”:

A court may

... provide specific instructions to

the State without running afoul of the PLRA.

While the injunction here might leave the State

less discretion than injunctions typically ap

‐ proved in the PLRA context, we conclude that the

level of intrusiveness is acceptable based on the his

‐

tory and circumstances of the case

.

Disabled inmates have been litigating to en

‐

sure that the State provides them with needed

accommodation for over two decades—and yet

the State still has a long, long way to go before

it meets its obligations to these prisoners. TheNos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 47

ongoing, intractable nature of this litigation affords

the district court considerable discretion in fashion

‐ ing relief. Relief that might have raised concerns

about breadth and intrusiveness in the first instance

is acceptable in this context

, because the district

court “has attempted narrower, less intrusive

alternatives—and those alternatives have

failed....”

Id

. at 985–86 (emphasis added) (quoting Morales Feliciano

, 378

F.3d at 55). The Ninth Circuit likened the facts before it to

those in Morales Feliciano ; it explained:

The First Circuit confronted a similar situa

‐

tion in litigation involving Puerto Rico’s prison

system, where constitutional violations pertain

‐ ing to the delivery of health care were “substan

‐

tial in both scope and degree” and had “defied

correction for more than two decades.” Id

. at 54.

We face the same problem here. As we have pre

‐ viously noted, litigation in this matter has been

ongoing for decades and the State has “resisted

complying with [its] federal obligations at every

turn.” Through a series of narrowly drawn,

carefully

‐ crafted, and thorough orders, the dis

‐

trict judge here, like the district judge oversee

‐ ing the Puerto Rico prison litigation, “ has tried

more conventional methods, but found them want

‐ ing .” See Morales Feliciano

, 378 F.3d at 54. “This

record of abject failure matters in the narrow

‐

ness

‐ need

‐ intrusiveness inquiry.” Id

. at 55. Be

‐

cause the district court has previously tried to correct

the deficiencies in California’s prisons’ compliance48 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

with the ADA and RA through less intrusive means,

and those attempts have failed, relief prescribing

more specific mechanisms of compliance is appropri

‐

ate

. See id

. at 54–56; see also Plata

, 131 S. Ct. at

1946.

Id

. at 986 (emphasis added) (additional citations omitted).

The Ninth Circuit observed that “the core PLRA inquiry is

‘whether the same vindication of federal rights could have

been achieved with less involvement by the court in directing

the details of defendants’ operations.” Id

. at 986. However, the

State’s actions over the past twenty years had shown “that the

same vindication of federal rights cannot be achieved with

less involvement by the district court.” Id

. Moreover, the State

had not suggested other, less

‐ intrusive means of ensuring ac

‐ countability. Given that the State’s failure to present a realistic

alternative, “its protestations that such alternatives exist

[were] hollow.” Id

. Thus, the court concluded that the modi

‐

fied injunction complied with the PLRA.

All of these cases establish that, when addressing consti

‐

tutional violations that institutional defendants have been

slow to correct, district courts may impose increasingly de

‐

tailed injunctions “to correct the violation of the Federal

right.” These cases have distinguished—some implicitly,

some explicitly—a district court’s initial efforts from its later

efforts. Moreover, they have identified the key factors in al

‐ lowing a district court to impose more targeted requirements

over time: a continuing constitutional violation that has de

‐

fied correction, a begrudging (or at least slow) institutional

response, and a lack of effort on behalf of the public defendant

to propose a viable alternative. Thus, to both the Supreme

Court and to our sister circuits, a “history ofNos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 49

noncompliance” 34 does matter, and, indeed, is critical in eval

‐ uating the scope of the district court’s remedial order

Our decision in Westefer does not require—or even sug

‐

gest—a different result. Westefer did not address a long

‐ term,

ongoing constitutional violation. In Westefer

, the district

court’s detailed injunction, incorporating the ten

‐ point plan,

represented its first effort to redress the prisoners’ claims.

Therefore, when we instructed the district court to “do no

more than to order IDOC officials” to comply with the due

process clause “in general terms and to verify that the plan

they submit satisfies the relevant constitutional standards,”

Westefer

, 682 F.3d at 686, we were addressing a district court’s

first order involving remedial relief. In that context, district

courts must give prison officials considerable leeway in craft

‐ ing plans to redress constitutional violations. See id

. at 683

(noting prison officials’ “broad administrative and discretion

‐

ary authority over the institutions they manage” (quoting

Hewitt v. Helms

, 459 U.S. 460, 467 (1983))). We simply had no

occasion to consider how a history of recalcitrance might alter

the need

‐ narrowness

‐ intrusiveness inquiry.

2

.

The second crucial shortcoming in the majority opinion is

the lack of recognition that the district court occupies a supe

‐

rior position in evaluating the critical facts underlying the

need

‐ narrowness

‐ intrusiveness inquiry. Complex and en

‐

trenched constitutional violations in public institutions do not

lend themselves to simplistic solutions. In Plata

, for instance,

34 Majority Op. 17.50 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

the Supreme Court noted the difficulty facing the district

court in fashioning a remedial order:

[e]stablishing the population at which the

State could begin to provide constitutionally ad

‐

equate medical and mental health care, and the

appropriate timeframe within which to achieve

the necessary reduction, requires a degree of

judgment. The inquiry involves uncertain pre

‐

dictions regarding the effects of population re

‐

ductions, as well as difficult determinations re

‐ garding the capacity of prison officials to pro

‐

vide adequate care at various population levels.

Plata

, 563 U.S. at 538.

Given the many variables at issue, other courts have rec

‐ ognized that district courts have an institutional advantage

over appellate courts in fashioning appropriate remedies un

‐

der the PLRA. District courts, having presided over these

cases for years and sometimes decades, develop in

‐ depth

knowledge of the plaintiffs’ claims, the defendants’ institu

‐

tional organization and structure, and, concomitantl y, the

practical impediments that particular measures will face (or

the impediments that have rendered prior measures ineffec

‐ tual). As a result, the district courts are in the best position to

evaluate what actions are possible, what will be effective, and

what actions are required to ameliorate a constitutional viola

‐

tion. See Plata

, 563 U.S. at 541 (“The adversary system af

‐

forded the court an opportunity to weigh and evaluate evi

‐

dence presented by the parties.”); Morales Feliciano

, 378 F.3d

at 54–55 (recounting the district court’s two

‐ decade involve

‐

ment in the litigation and its efforts at using less

‐ intrusive

means); cf. Benjamin

, 343 F.3d at 52 (“Giving appropriateNos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 51

deference to the district court, which has overseen these ef

‐

forts for over twenty years, we see no reason to disturb either

conclusion.”). In recognition of this superior frame of refer

‐

ence, the factual findings necessary for a need

‐ narrowness

‐ in

‐

trusiveness determination are reviewed only for clear error.

See Plata

, 563 U.S at 541 (explaining that the three

‐ judge

panel’s “weighing of the evidence” related to narrowness

“was not clearly erroneous”).

The panel majority, by contrast, gives little weight to the

district court’s unique role. Unlike the Supreme Court and the

other circuits that have confronted the problem, its opinion

contains no acknowledgment of the district court’s familiarity

with the underlying constitutional violations, the recalcitrant

actions of the defendants, or how that recalcitrance affected

the inmates with serious mental health needs. Indeed, it is

very difficult to find any deference at all to the district court’s

factual findings. Rather, much like its deliberate indifference

analysis, the majority treats the need

‐ narrowness

‐ intrusive

‐

ness inquiry as one that is purely legal and therefore subject

to de novo review. Such an approach cannot be reconciled

with Plata

, nor with that of our sister circuits. See generally

Charles Allen Wright, The Doubtful Omniscience of Appellate

Courts

, 41 Minn. L. Rev. 751 (1957).

C.

When we evaluate the district court’s injunction in light of

IDOC’s history of noncompliance and appreciate, as we

should, the superiority of the district court’s institutional van

‐

tage point to our own, it is clear that the injunctive relief

crafted here passes muster under the PLRA.52 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

As in the cases discussed above, the conditions allowing a

district court to be more focused in its remedial efforts are all

present. There is no question that there is a constitutional vi

‐

olation that has defied correction. See R.2460 at 27–28 (“While

some efforts have been successful, including the recent expan

‐

sion of the use of tele

‐ psychiatry, the Defendants ha[d] failed

to achieve a minimum level of medical service to avoid the

label of cruel and unusual punishment.”). And IDOC’s re

‐

sponse has been both begrudging and “reactionary.” R.2516

at 4 (“In its Orders, this Court specifically found that the De

‐

fendants’ efforts to comply with the Settlement Agreement (or

its own general directives) only came at the time of, or after,

the filing of the Plaintiffs’ initial Motion. Simply put, the De

‐

fendants’ actions have been largely reactionary.” (citation

omitted)).

At the outset, the record is replete with evidence that the

central contributing factors to IDOC’s failure to provide con

‐ stitutionally adequate mental health care (if not the only one)

is its staffing shortage. Any effective remedy, therefore, must

include guidelines for staffing levels. However, there was no

serious effort by IDOC to participate in the crafting a remedial

order. After the district court granted the plaintiffs’ motion

for a permanent injunction, it asked IDOC to “submit their

proposed action to address the constitutional deficiencies”

outlined in the court’s order. 35 With respect to the most criti

‐

cal aspect of relief—staffing levels—IDOC proposed the fol

‐ lowing:

The Department shall adopt a staffing plan and

achieve a level of staffing that provides a

35 R.2460 at 50.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 53

sufficient number of mental health staff of var

‐ ying types to provide class members with ade

‐

quate and timely evaluations, treatment, and

follow

‐ up consistent with contemporary stand

‐

ards of care. The Department may use any rea

‐

sonable means that it determines in its profes

‐

sional judgment to be appropriate to provide

sufficient staffing. 36

The district court legitimately concluded that this general

recitation of its constitutional responsibilities did not reflect a

serious effort by IDOC to contribute to the remedial analysis:

The Defendants’ most egregious attempt to cure

their constitutional deficiencies is set forth in

their proposal regarding mental health staffing.

Defendants propose adopting the vague re

‐ quirement that they have “a staffing plan and

achieve a level of staffing that provides suffi

‐

cient number of mental health staff of varying

types to provide class members with adequate

and timely evaluations, treatment and fol

‐

low

‐ up consistent with contemporary stand

‐

ards of care.” Yet, Defendants know they are

understaffed, and they also know the staffing

levels which are necessary to provide adequate

care. In fact, Defendants are fully aware of all

these deficiencies, as they have both

36 R.2473

‐ 1 at 4.54 Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978

acknowledged the staffing problems at the Illi

‐

nois Department of Corrections. 37

Thus, absent any helpful contribution by IDOC, the dis

‐

trict court turned to the staffing levels set forth in IDOC’s own

2014 staffing plan

. Notably, IDOC authored this plan and rep

‐

resented that, at least in 2014, it would “satisfy its constitu

‐

tional duty to provide mental health care to seriously men

‐ tally ill

... offenders.” 38 According to the plan, it reflected “a

measured approach for achieving the necessary transfor

‐

mation within a reasonable timeframe.” 39

Given that, in 2014, this plan represented IDOC’s best as

‐

sessment of the staffing that would bring it into constitutional

compliance in both a “measured” way and “reasonable”

timeframe, it is difficult to see how the relief fails the

need

‐ narrowness

‐ intrusiveness test. The district court’s deci

‐

sion to use IDOC’s remedial plan both recognizes that IDOC

is in the best position to assess the staffing levels that will al

‐

low it to deliver constitutionally compliant mental health care

and that it is unlikely to saddle itself with unnecessary bur

‐

dens. Moreover, as the district court recognized, at this point,

the 2014 numbers represent a bare minimum. They may not

be sufficient to correct the Eighth Amendment violation. The

number of prisoners with mental health needs only has

grown over the past seven years, and there is some evidence

that the proposed staffing numbers are no longer sufficient.

Nevertheless, because the 2014 staffing levels never had been

37 R.2516 at 4

– 5 (citation omitted).

38 2014 Remedial Staffing Plan at 1.

39 Id

. at 2.Nos. 19

‐ 1145, 19

‐ 1375 & 19

‐ 1978 55

achieved, the district court could not say definitively that they

would be inadequate. As such, they represented a legitimate

estimate to achieve a constitutional floor.

Although acknowledging that “specific numeric target[s]”

do not “automatically violate[] the PLRA,” Majority Op. 17,

my colleagues nevertheless fault the district court for impos

‐ ing staffing targets that did not leave much to IDOC’s discre

‐

tion, see id

. at 18 (quoting Plata

, 563 U.S. at 533). However, the

remedial plan was a product of IDOC’s discretion: All of the

staffing numbers used by the district court in its permanent

injunction originated with IDOC. The district court did noth

‐ ing more than order IDOC to a conform to a plan of its own

making. Nothing in this action intruded on IDOC’s deci

‐

sion

‐ making regarding allocation of resources, prison admin

‐

istration, or public safety.

Here, the district court made specific findings establishing

that its permanent injunction “extend[s] no further than nec

‐

essary to correct” the Eighth Amendment violation, “is nar

‐ rowly drawn,” and “is the least intrusive means necessary to

correct the violation” of the inmates’ rights. I would therefore

affirm the judgment of the district court entering permanent

injunctive relief against IDOC.