In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 20-1792 

ANTHONY MAYS, individually and on behalf of a class of similarly situated persons, et al., 

Plaintiffs-Appellees, 

v.

THOMAS J. DART, Sheriff of Cook County, Illinois, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court 

for the Northern District of Illinois. 

No. 20-cv-2134 — Matthew F. Kennelly, Judge. 

____________________ 

ARGUED AUGUST 18, 2020 — DECIDED SEPTEMBER 8, 2020 

____________________ 

Before SYKES,Chief Judge, and BRENNAN and ST. EVE, Circuit 

Judges.

ST. EVE, Circuit Judge. Plaintiffs—a class of detainees at the 

Cook County Jail—brought this action against Cook County 

Sheriff Thomas Dart after the Jail reported an outbreak of 

COVID-19, the disease caused by the novel coronavirus that 

has sparked a global pandemic. Plaintiffs contend that the 
2 No. 20-1792

Sheriff has violated their Fourteenth Amendment Due Process rights by failing to provide them with reasonably safe living conditions as the pandemic rages. Plaintiffs seek various 

forms of relief, including an injunction requiring the Sheriff to 

implement certain procedures related to social distancing, 

sanitation, diagnostic testing, and personal protective equipment (“PPE”) to protect them from the virus for the duration 

of the pandemic. 

After a hearing, the district court granted a temporary restraining order imposing several forms of relief, including but 

not limited to, mandates requiring the Sheriff to provide hand 

sanitizer and soap to all detainees and face masks to detainees 

in quarantine. The district court declined to order relief in several instances, though: most notably for our decision today, 

the district court rejected Plaintiffs’ request to prohibit double 

celling and group housing arrangements to permit adequate 

social distancing. 

Plaintiffs subsequently moved for entry of a preliminary 

injunction, requesting an extension of the relief the district 

court previously mandated in the temporary restraining order and, among other things, renewing their request for socially distanced housing. After another hearing, the district 

court switched course from its prior ruling and granted the 

renewed social distancing request, albeit with certain exceptions. The district court also granted the request for an extension of the relief included in the temporary restraining order. 

The Sheriff appealed. 

We conclude that, in the course of its analysis regarding 

double celling and group housing, the district court committed three distinct legal errors: the district court failed to consider the Sheriff’s conduct in its totality, failed to afford 
No. 20-1792 3

proper deference to the Sheriff’s judgment in adopting policies necessary to ensure safety and security, and cited an incorrect legal standard when evaluating the likelihood that 

Plaintiffs’ claims will succeed on their merits. Given these legal errors in evaluating the likelihood of success on the merits 

of Plaintiffs’ claims, we reverse the district court with respect 

to the portion of the preliminary injunction mandating socially distanced housing. Regarding the remaining relief, 

however, the district court made detailed factual findings, 

properly considered the Sheriff’s conduct in its totality, and 

closely tailored the relief it ordered to the guidelines promulgated by the Centers for Disease Control and Prevention 

(“CDC”). We therefore affirm all other aspects of the preliminary injunction. 

I. Background 

A. Factual Background 

At present, COVID-19 requires no introduction: the novel 

coronavirus causing this disease has spread around the 

world, resulting in an unprecedented global pandemic that 

has disrupted every aspect of public life. The virus, SARSCoV-2, causes symptoms ranging from fever to shortness of 

breath to loss of smell and can lead to serious health effects—

including damage to internal organs and, in many cases, 

death. People over the age of sixty-five and with certain 

preexisting health conditions face a heightened risk of severe 

illness resulting from COVID-19. The virus transmits rapidly 

from person to person, primarily through respiratory droplets emitted by coughing or sneezing that can travel multiple 

feet and remain in the air for several hours, and also through 

lingering particles on surfaces. People may transmit the virus 
4 No. 20-1792

despite a lack of symptoms, making it difficult to take necessary precautions. 

Society has, though, taken many precautions to attempt to 

curb the spread of COVID-19. Many states, including Illinois, 

presently require wearing face coverings in public spaces in 

order to slow the spread of COVID-19. States have ramped up 

testing capacity and contact tracing to identify those who 

have interacted with persons who later tested positive for the 

virus. Illinois and most other states implemented stay-athome orders that forced people to socially distance, limiting 

interpersonal contacts and group activities: schools transitioned to remote learning, restaurants and bars closed, and 

officials largely cancelled public events. 

The Cook County Jail is an enormous facility with the population of a small town. The inherent nature of the Jail presents unique challenges for combatting the spread of COVID19: it is designed to accommodate large and densely-packed 

populations. Many detainees reside in “dormitory” units, 

meaning hundreds of detainees sleep in a single room on 

closely-spaced bunk beds, and there are many common 

spaces where detainees are in close proximity to one another. 

On April 8, 2020, The New York Times reported that, at that 

time, the Jail was the largest known-source of coronavirus infections in the United States. Timothy Williams and Danielle 

Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind 

Bars (April 8, 2020) N.Y. Times, https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html (last visited August 27, 2020). When Plaintiffs filed 

their motion for a preliminary injunction, on April 14, 541 detainees and Jail staff had tested positive for COVID-19. By 

April 23, only a few days before the district court issued the 
No. 20-1792 5

preliminary injunction that is the subject of this appeal, six 

detained persons had died from complications. 

On March 23, the Center for Disease Control issued Interim Guidance on Management of Coronavirus Disease 2019 

(COVID-19) in Correctional and Detention Facilities (“CDC 

Guidelines”). The document “is intended to provide guiding 

principles for healthcare and non-healthcare administrations 

of correctional and detention facilities” to “help reduce the 

risk of transmission and severe disease from COVID-19” in 

light of the unique challenges correctional and detention facilities present. The Guidelines recommend various 

measures, including making available sufficient hygiene and 

cleaning supplies, frequently cleaning and disinfecting hightouch surfaces and objects, and implementing social distancing strategies where feasible, among many others. The Guidelines note, in bold font, that the “guidance may need to be 

adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.” Additionally, in the section recommending the implementation of social distancing in jails, the CDC’s guidance 

notes “[s]trategies will need to be tailored to the individual 

space in the facility and the needs of the population and staff.” 

The Cook County Sheriff, who is responsible for operating 

the Jail, took numerous proactive measures to prevent the 

spread of COVID-19. As early as January 24, Roland Lankah, 

the Sheriff’s in-house Environmental Health Specialist and 

epidemiologist, began coordinating with the Cook County 

Health Infection Control Department to develop a plan for an 

outbreak. That plan involved increasing disinfection and sanitization, devising protocols to screen detainees for symptoms, and moving infected detainees to separate housing. 
6 No. 20-1792

Upon Governor Pritzker’s declaration of Illinois as a disaster 

area on March 9, the Sheriff set up a space for new detainees 

to quarantine for seven to fourteen days before entering the 

general population. By mid-March, First Assistant Executive 

Director Michael Miller was working to open three closed divisions of the Jail to create more single-cell units and reduce 

density. The Sheriff also coordinated with Senator Durbin’s 

office, the Federal Emergency Management Agency, and 

Governor Pritzker’s office to receive priority access to the national stockpile of PPE in Illinois. The Sheriff engaged various 

consultants, including a former CDC Director, to improve 

sanitation policies, policies relating to medical screening, and 

use of PPE. In coordination with other stakeholders in the 

Cook County criminal justice system, the Sheriff undertook 

efforts to reduce the Jail population through securing release 

or electronic monitoring for over 1,200 detainees. And, on 

April 1, the Sheriff’s Office contacted local authorities to obtain approval to administer Abbott Laboratories’ rapid test at 

the Jail. Cermak Health Services, a division of the Cook 

County Health and Hospital Systems, began administering 

these tests soon thereafter. 

B. Procedural Background 

On April 3, Anthony Mays and Kenneth Foster, two detainees at the Cook County Jail, sued Cook County Sheriff 

Thomas Dart on behalf of “all people who are currently or 

who will in the future be housed in the Cook County Jail for 

the duration of the COVID-19 pandemic.” The class includes 

two subclasses: Subclass A, which consists of all people who 

are at an elevated risk of complications from COVID-19 due 

to age or an underlying medical condition, and Subclass B, 

which consists of all people housed on a tier where someone 
No. 20-1792 7

has tested positive for the virus. They assert violations of their 

rights under the Fourteenth Amendment to reasonably safe 

living conditions, bringing claims under 42 U.S.C. § 1983 and 

for writs of habeas corpus under 28 U.S.C. § 2241. 

1. Temporary Restraining Order 

Plaintiffs moved for a temporary restraining order, requesting that the district court order the Sheriff to enact multiple measures designed to prevent the spread of COVID-19. 

On April 9, after conducting a hearing via telephone and reviewing numerous affidavits Plaintiffs submitted, the district 

court issued a temporary restraining order, though one considerably narrower than the order Plaintiffs requested. This 

temporary restraining order compelled the Sheriff to do the 

following: 

 To establish “a policy requiring prompt coronavirus 

testing of detainees who exhibit symptoms consistent 

with coronavirus disease as well as, at medically appropriate times and to the extent feasible based on the 

acquisition of sufficient testing materials, detainees 

who have been exposed to others who have exhibited 

those symptoms or have tested positive for coronavirus.” 

 To enforce “social distancing during the new detainee 

intake process, including suspending the use of bullpens to hold new detainees awaiting intake.” 

 To provide “soap and/or hand sanitizer to all detainees 

in quantities sufficient to permit them to frequently 

clean their hands” and “adequate sanitation supplies 

to enable all staff and detainees to regularly sanitize 

surfaces and objects on which the virus could be 
8 No. 20-1792

present, including in all areas occupied or frequented 

by more than one person (such as two-person cells, as 

well as bathrooms and showers).” 

 To establish “a policy requiring sanitization between 

all uses of frequently touched surfaces and objects as 

well as monitoring and supervision to ensure that such 

sanitization takes place regularly.” 

 To “provide facemasks to all detainees who are quarantined—i.e., those who have been exposed to a detainee who is symptomatic (even if not coronaviruspositive).” 

In imposing this relief, the district court made detailed factual 

findings about the policies the Sheriff had enacted and his 

successes and shortcomings in executing those policies. 

Throughout its decision, the district court relied heavily on 

the CDC Guidelines. Where the district court elected to impose the requested relief, the court noted that the evidence 

showed the Sheriff’s collective actions fell short of those recommended in the CDC Guidelines. 

In several instances, though, the district court declined to 

implement additional relief where the evidence revealed that 

the Sheriff already had a policy in place—such as one requiring a fourteen-day quarantine of all new detainees—or existing measures were sufficient—such as those to enforce the use 

of PPE by Jail staff who come into contact with detainees. The 

court also overruled Plaintiffs’ requests for mandatory social 

distancing throughout the Jail and a directive to identify detainees who are at high risk for complications from COVID19. In these instances, the court was unpersuaded that 
No. 20-1792 9

Plaintiffs were likely to succeed on the merits of their claim 

that the Sheriff’s conduct posed a constitutional violation. 

Regarding social distancing in particular, the district court 

acknowledged the Sheriff’s “ongoing effort[s] to modify custodial arrangements” at the Jail to “permit greater separation 

of detainees,” but noted that “space constraints” at the Jail 

preclude “complete social distancing.” The court cited the 

CDC Guidelines, which “expressly recognize that complete 

social distancing may not be possible in the sleeping areas of 

a jail.” The court also acknowledged that “[s]pace constraints 

at the Jail do not allow for the more preferable degree of social 

distancing that exists in the community at large.” The court 

thus concluded that “plaintiffs have [failed] to show a reasonable likelihood of success on their contention that the Sheriff 

is acting in an objectively unreasonable manner by failing to 

mandate full social distancing” and that this was “particularly so because the Sheriff’s submission reflects an ongoing 

effort to modify custodial arrangements at the Jail in a way 

that will permit greater separation of detainees.” 

2. Preliminary Injunction 

On April 14, Plaintiffs moved for entry of a preliminary 

injunction. Relevant to our decision today, Plaintiffs sought to 

extend the relief the court imposed in the temporary restraining order and again requested a mandate for social distancing 

throughout the Jail. The Sheriff opposed the motion, and, regarding the request for social distancing, argued that his efforts were consistent with the CDC Guidelines, that he had 

already taken substantial steps to implement social distancing, and that further steps were impossible. The Sheriff submitted a progress report on efforts to contain the coronavirus. 

Regarding social distancing, the progress report described 
10 No. 20-1792

efforts to open previously closed divisions, transition 175 tiers 

to single-cell housing, and reduce dormitory capacity to below fifty percent, except for detainees in certain medical or 

restricted housing. The Sheriff also had worked with criminal 

justice stakeholders to secure the release of more than 1,200 

detainees with appropriate bond conditions, increased singlecell housing at the Jail by approximately 545%, and decreased 

double-celled housing at the Jail by over 90%. 

The district court conducted a preliminary injunction 

hearing via videoconference and permitted each side to call 

one witness in addition to submitting affidavits. The court ultimately granted Plaintiffs’ motion in part. Regarding Plaintiffs’ § 1983 claim, the court conditionally certified the proposed class to the extent Plaintiffs requested a conversion of 

the temporary restraining order to a preliminary injunction 

and a mandate requiring increased social distancing. The 

court then proceeded to the question of whether Plaintiffs had 

demonstrated that they had a “better than negligible chance” 

of succeeding on their contention that the Sheriff’s conduct in 

addressing the risks posed by exposure to the coronavirus is 

objectively unreasonable. The court acknowledged the “significant, and impressive, effort” the Sheriff had undertaken, 

and noted that, if this were an Eighth Amendment claim, this 

finding regarding the Sheriff’s efforts would likely end the 

matter. 

The court focused on Plaintiffs’ renewed request for a policy precluding double celling and group sleeping arrangements to facilitate social distancing. The court first explained 

that the CDC Guidelines, which set a feasibility limitation on 

social distancing practices, are relevant but not dispositive. 

The court then determined that “group housing and double 
No. 20-1792 11

celling subject detainees to a heightened, and potentially unreasonable and therefore constitutionally unacceptable, risk 

of contracting and transmitting the coronavirus.” Thus, after 

making a passing reference to the Sheriff’s interest in discipline and security in the Jail and dismissing the Sheriff’s contention that he faced feasibility limitations on further social 

distancing, the court concluded that Plaintiffs were reasonably likely to succeed on their contention that group housing 

and double celling is objectively unreasonable, except in certain situations. In arriving at this conclusion, the court did not 

discuss any other aspect of the Sheriff’s response to COVID19; instead, the court limited its discussion solely to the importance of social distancing. The court also rejected the Sheriff’s argument that his compliance with the temporary restraining order rendered its extension into a preliminary injunction unnecessary because the court could not conclude 

that the constitutional violations would not recur absent such 

an extension. The court did not revisit any of its findings related to the measures it ordered in the temporary restraining 

order. 

Regarding the remaining preliminary injunction factors, 

the district court determined that Plaintiffs had shown that, 

without additional measures, they would likely suffer irreparable harm—including severe illness and death—and that 

damages could not fully remedy the risk they faced. Lastly, 

the district court determined the balance of harms weighed in 

favor of Plaintiffs. The court therefore issued a preliminary 

injunction extending all of the relief included in the temporary restraining order, with the additional requirement of a 

policy precluding group housing and double celling except in 

certain situations, such as when a medical or mental health 

professional has determined a detainee poses a risk of suicide 
12 No. 20-1792

or self-harm if placed in a single cell or when a detainee requires medical treatment not available in socially distanced 

housing. 

The Sheriff appealed, challenging the entire preliminary 

injunction but directing the bulk of his arguments to the prohibition against double celling and group housing. 

II. Discussion 

“To obtain a preliminary injunction, a plaintiff must show 

that: (1) without this relief, it will suffer ‘irreparable harm’; (2) 

‘traditional legal remedies would be inadequate’; and (3) it 

has some likelihood of prevailing on the merits of its claims.” 

Speech First, Inc. v. Killeen, 968 F.3d 628, 637 (7th Cir. 2020) 

(quoting Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068 

(7th Cir. 2018)). If a plaintiff makes such a showing, the court 

proceeds to a balancing analysis, where the court must weigh 

the harm the denial of the preliminary injunction would cause 

the plaintiff against the harm to the defendant if the court 

were to grant it. Courthouse News Serv., 908 F.3d at 1068. This 

balancing process involves a “sliding scale” approach: the 

more likely the plaintiff is to win on the merits, the less the 

balance of harms needs to weigh in his favor, and vice versa.

Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001). 

Mandatory preliminary injunctions—those "requiring an affirmative act by the defendant”—are “ordinarily cautiously 

viewed and sparingly issued.” Graham v. Medical Mut. of Ohio, 

130 F.3d 293, 295 (7th Cir. 1997); see also Pashby v. Delia, 709 

F.3d 307, 319 (4th Cir. 2013) (review of a preliminary injunction is “even more searching” when the injunction is “mandatory rather than prohibitory in nature.”) 
No. 20-1792 13

While we review the district court’s balancing of the 

harms for an abuse of discretion, we review its legal conclusions de novo and its findings of fact for clear error. C.Y. 

Wholesale, Inc. v. Holcomb, 965 F.3d 541, 545 (7th Cir. 2020). 

“[A] factual or legal error may alone be sufficient to establish 

that the court ‘abused its discretion’ in making its final determination.” Lawson Prod., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 

(7th Cir. 1986). “Absent such errors,” however, “we afford a 

district court’s decision ‘great deference.’” Speech First, Inc., 

968 F.3d at 638 (quoting Valencia v. City of Springfield, 883 F.3d 

959, 966 (7th Cir. 2018)). 

A. Socially Distanced Housing 

We first address the portion of the preliminary injunction 

aimed at socially distanced housing because that is the thrust 

of the Sheriff’s appeal. The parties do not dispute the district 

court’s conclusions regarding the first two elements of the 

preliminary injunction standard: that Plaintiffs would suffer 

irreparable harm and that traditional legal remedies would be 

inadequate. Rather, the debate focuses entirely on the likelihood of success on the merits of their claim that the Sheriff’s 

actions (or inaction, as Plaintiffs contend) in response to 

COVID-19 are objectively unreasonable. We therefore limit 

our discussion to this threshold requirement. 

We conclude that the district court committed three distinct legal errors: the court failed to consider the totality of the 

circumstances, the court failed to afford proper deference to 

the Sheriff’s judgment in adopting policies necessary to ensure safety and security in the Jail, and the court recited an 

incorrect legal standard when evaluating the likelihood that 
14 No. 20-1792

Plaintiffs’ contentions will succeed on their merits. We address each of these errors in turn. 

1. Totality of the Conduct 

We start with the proper scope of the analysis under the 

more recent objective reasonableness inquiry for pretrial conditions of confinement claims. In Kingsley v. Hendrickson, 576 

U.S. 389 (2015), the Supreme Court concluded that, when 

bringing an excessive force claim, a “pretrial detainee must 

show only that the force purposely or knowingly used against 

him was objectively unreasonable,” rather than demonstrate 

deliberate indifference. Id. at 396–97. Recognizing “that the 

Supreme Court has been signaling that courts must pay careful attention to the different status of pretrial detainees,” we 

held in Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir. 2018), that 

a pretrial detainee’s claims of inadequate medical care also 

“are subject only to the objective unreasonableness inquiry 

identified in Kingsley.” Id. at 352. We saw “nothing in the logic 

the Supreme Court used in Kingsley” to support a “dissection 

of the different types of claims that arise under the Fourteenth 

Amendment’s Due Process Clause.” Id. We likewise subsequently expanded this holding to encompass conditions of 

confinement claims under the Fourteenth Amendment Due 

Process Clause. Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 

2019) (citing Kingsley, 576 U.S. at 396–97). Accordingly, we 

must analyze Plaintiffs’ claim under the objective reasonableness inquiry articulated in Kingsley.

1 Id. 

1 Both the Sixth Circuit and the Eleventh Circuit have recently addressed 

conditions of confinement claims involving the coronavirus in prison settings. See Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), in Swain v. Junior, 

961 F.3d 1276 (11th Cir. 2020). These Circuits, however, apply an Eighth

Amendment deliberate indifference standard to pretrial detainee 
No. 20-1792 15

The Supreme Court described the application of the objective reasonableness standard in Kingsley: “A court (judge or 

jury) cannot apply this standard mechanically. Rather, objective reasonableness turns on the facts and circumstances of 

each particular case.” 576 U.S. at 397. We reiterated this principle in McCann v. Ogle Cty., Illinois, 909 F.3d 881 (7th Cir. 

2018), explaining that, when evaluating whether challenged 

conduct is objectively unreasonable, courts must “focus on 

the totality of facts and circumstances.” Id. at 886. 

The district court erred by narrowly focusing its objective 

reasonableness analysis almost exclusively on social distancing instead of considering the totality of facts and circumstances, including all of the Sheriff’s conduct in responding to 

and managing COVID-19. Citing McCann, the district court 

wrote, “To succeed on their claim, the plaintiffs must show 

that the Sheriff’s conduct in addressing the risks posed by exposure to coronavirus is objectively unreasonable in one or 

more respects.” (emphasis added). The district court then went 

on to emphasize social distancing and the Sheriff’s efforts to 

implement social distancing to the exclusion of the Sheriff’s 

other actions. This analysis incorrectly ignored the totality of 

the circumstances. It may very well be the case that a particular aspect of an action is so lacking that the failing on this one 

factor will lead a court to correctly conclude the entire course 

of challenged conduct was objectively unreasonable. It may 

conditions of confinement claims rather than the objectively unreasonable 

claim that we apply, and thus focus on a subjective element that is not at 

issue here. 
16 No. 20-1792

also be that some actions or inactions are more consequential 

than others. But that does not mean that the court should evaluate each aspect of the disputed actions in a vacuum, especially in a case involving a systemic claim like here. Rather, 

the court must consider the total of the circumstances surrounding the challenged action. 

In addition, the district court hinged its decision to impose 

a social distancing directive on the basis of one, and only one, 

key factual finding: “At the current stage of the pandemic, 

group housing and double celling subject detainees to a 

heightened ... risk of contracting and transmitting the coronavirus.” We do not suggest that this finding was erroneous: 

the district court had before it a voluminous evidentiary record about the importance of social distancing to reducing 

transmission of COVID-19. Instead, we take issue with what 

was missing: absent from the district court’s reasoning was 

any mention of the totality of the measures the Sheriff already 

had taken to combat the spread of COVID-19, including those 

regarding social distancing. By the time the district court issued the preliminary injunction, the Sheriff had already implemented several such measures. Notably, and as the district 

court initially acknowledged in its temporary restraining order, these included substantial efforts to increase social distancing, such as opening shuttered divisions of the Jail, creating new single-cell housing, and decreasing the capacity of 

dormitories. The Sheriff had also undertaken extensive other 

measures to prevent and manage the spread of COVID-19 at 

the Jail. By failing to evaluate the request for a policy precluding double celling and group housing in light of the other aspects of the Sheriff’s COVID response, the district court did 

not properly consider the totality of the facts and 
No. 20-1792 17

circumstances when evaluating the objective unreasonableness of the Sheriff’s actions. 

2. Deference to Correctional Administrators 

We turn to a second error: the failure to defer to correctional administrators in a matter implicating safety and security concerns. “When evaluating reasonableness, ... courts 

must afford prison administrators ‘wide-ranging deference in 

the adoption and execution of policies and practices that in 

their judgment are needed to preserve internal order and discipline and to maintain institutional security.’” Henry v. 

Hulett, -- F.3d --, 2020 WL 469188, (7th Cir. 2020) (en banc) 

(quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). Likewise, a 

court must “account for the legitimate interests that stem from 

the government’s need to manage the facility in which the individual is detained.” Kingsley, 576 U.S. at 397. Thus, “in the 

absence of substantial evidence in the record to indicate that 

the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Bell, 441 U.S. at 548 (quoting Pell v. 

Procunier, 417 U.S. 817, 827 (1974)). Correctional administrators must have “substantial discretion to devise reasonable 

solutions to the problems they face,” particularly when safety 

and security interests are at stake. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326 (2012). Thus, “as 

part of the objective reasonableness analysis ... deference to 

policies and practices needed to maintain order and institutional security is appropriate.” Kingsley, 576 U.S. at 399–400. 

When evaluating Plaintiffs’ request for a policy precluding group housing and double celling, the district court made 

a passing reference to its obligation to “account for and give 

deference to the Sheriff’s interest in managing the Jail facilities 
18 No. 20-1792

and to practices that are needed to preserve order and discipline and maintain security.” The district court, however, did 

not discuss in a meaningful way how, if at all, the considerable deference it owed to the judgment of prison administrators impacted its analysis. Undoubtedly, safety and security 

concerns play a significant role in a correctional administrator’s housing decisions: jails and prisons require some degree 

of flexibility in choosing cell assignments, as they need to ensure, for example, that detainees are assigned to the living 

quarters corresponding with their security classifications and 

factoring in particular vulnerabilities that increase security 

risks. This is especially true at the Jail where the population 

fluctuates daily given the number of bookings and releases 

that take place. Correctional officers similarly must have the 

freedom to quickly reassign inmates when fights or other 

emergency situations occur that threaten the safety of staff 

and inmates. This is perhaps no more important than at a facility like the Cook County Jail, which houses a wide range of 

detainees accused of committing up to the most serious of violent offenses. Given the deference courts owe to correctional 

administrators on matters implicating safety concerns and the 

substantial role that security interests play in housing assignments, the failure to consider these interests was a legal error. 

3. Likelihood of Success on the Merits 

Lastly, we address a third issue: the proper standard for 

evaluating the likelihood of success on the merits when considering a motion for a preliminary injunction. The district 

court began its analysis of Plaintiffs’ request for a policy requiring socially distanced housing by noting that, to demonstrate a likelihood of prevailing, Plaintiffs must show “only a 
No. 20-1792 19

better than negligible chance of success.” The district court explained this is a “low threshold.” 

As we just explained in Illinois Republican Party v. Pritzker, 

-- F.3d --, 2020 WL 5246656, at *2 (7th Cir. Sept. 3, 2020), “the 

‘better than negligible’ standard was retired by the Supreme 

Court,” and is not the proper standard to apply when evaluating the likelihood of success on the merits in a preliminary 

injunction motion. The standard originated in Omega Satellite 

Prod. Co. v. City of Indianapolis, 694 F.2d 119 (7th Cir. 1982). But 

like many instances of selectively quoted phrases, we did not 

use this phrase as an unadorned statement of the applicable 

standard. We said in Omega: 

If the harm to the plaintiff from denial of the 

preliminary injunction would be very great and 

the harm to the defendant from granting it very 

small, then the injunction should be granted 

even if the defendant has a better chance of prevailing on the merits than the plaintiff, provided 

the plaintiff's chances are better than negligible; 

and vice versa. 

Id. at 123. As readily apparent, in context, we were explaining 

no more than what has become known as our sliding scale 

approach. Since Omega, though, we have at times—confusingly—cited the “better than negligible” phrase as if it were 

the proper standard for evaluating the likelihood of success 

on the merits at the preliminary injunction stage. See Ill. Republican Party, 2020 WL 5246656 at *2 (collecting cases). 

The Supreme Court has invoked a higher standard. In 

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008), the 

Court stated that “[a] plaintiff seeking a preliminary 
20 No. 20-1792

injunction must establish that he is likely to succeed on the 

merits.” Id. at 20 (emphasis added). Similarly, when discussing the requisite showing to establish irreparable injury, the 

Court explained that its standard “requires plaintiffs seeking 

preliminary relief to demonstrate that irreparable injury is 

likely in the absence of an injunction.” Id. at 22 (emphasis in 

original) (rejecting the Ninth Circuit’s “possibility” standard 

as “too lenient”). The Court provided further guidance in 

Nken v. Holder, 556 U.S. 418 (2009), which set forth the standard governing motions for a stay pending appeal. Though a 

different context, “[t]here is substantial overlap between [the 

traditional stay factors] and the factors governing preliminary 

injunctions.” Id. at 434 (citing Winter, 555 U.S. at 24). This is 

“not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has 

been conclusively determined.” Id. The Court reiterated that 

under the “traditional” standard for a stay, the first factor asks 

“whether the stay applicant has made a strong showing that 

he is likely to succeed on the merits.” Id. at 425–26 (quoting 

Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). For that showing, 

the Court made clear, “[i]t is not enough that the chance of 

success on the merits be ‘better than negligible,’” quoting with 

disapproval this court’s decision in Sofinet v. INS, 188 F.3d 

703, 707 (7th Cir. 1999). Id. at 434. 

We thus reiterate that a plaintiff must demonstrate that 

“its claim has some likelihood of success on the merits,” see, 

e.g., Eli Lilly and Co. v. Arla Foods, Inc., 893 F.3d 375, 381 (7th 

Cir. 2018), not merely a “better than negligible” chance. What 

amounts to “some” depends on the facts of the case at hand 

because of our sliding scale approach. See Ty, Inc., 237 F.3d at 

895. 
No. 20-1792 21

Here, in reliance on our prior precedent, the district court 

recited the incorrect “better than negligible” standard several 

times. In various instances, though, the district court’s analysis indicates that it, in fact, applied a higher standard. In particular, the district court at times used language that Plaintiffs 

were “reasonably likely to succeed on their contention,” and 

the court ultimately concluded that Plaintiffs had “far surpassed” the “better than negligible” standard. Thus, were the 

recitation of the incorrect standard the district court’s only error, we could not say that the district court abused its discretion in imposing the social distancing requirement. But, when 

coupling this with the district court’s other errors, we cannot 

be certain that Plaintiffs’ showing of the likelihood of success 

on the merits of their claim would have surmounted the appropriate standard. We therefore reverse the portion of the 

preliminary injunction precluding double celling and group 

housing at the Jail. 

We emphasize that we do not address the merits of 

whether Plaintiffs have demonstrated that they have suffered 

a constitutional violation. Indeed, our discussion solely addresses the legal errors the district court committed in the 

course of its preliminary injunction analysis. We reverse this 

portion of the preliminary injunction on the basis of these legal errors alone. 

B. Remaining Relief 

In the temporary restraining order, the district court 

granted several measures of relief to Plaintiffs, including requirements that the Sheriff implement procedures and policies related to sanitation, testing, and provision of face masks 

to detainees in quarantine. When the district court issued the 

preliminary injunction, it did not revisit its analysis on any of 
22 No. 20-1792

these measures. Because the discussion pertaining to these 

measures resides in the temporary restraining order, we turn 

there for our analysis. 

We affirm the aspects of the preliminary injunction that 

the district court converted from the temporary restraining 

order. In that order, the district court made detailed factual 

findings about the risks of COVID-19, the Sheriff’s existing 

policies, and the execution of these policies, relying on hearing testimony and affidavits from Plaintiffs’ experts, detainees, and correctional administrators. Importantly, the district 

court assessed the requested relief considering the totality of 

the Sheriff’s conduct, rather than reviewing it in isolation. For 

example, the district court declined Plaintiffs’ request to mandate testing of new detainees since the Sheriff already had in 

place a policy requiring detainees to quarantine for fourteen 

days upon their arrival to the Jail. 

The district court also carefully considered the Sheriff’s 

conduct in light of the CDC Guidelines and hewed closely to 

the Guidelines in its explanation of each measure of relief it 

ordered. The CDC Guidelines—like other administrative 

guidance—do not themselves set a constitutional standard. 

See Bell, 441 U.S. at 543 n.27 (noting that recommendations of 

a Department of Justice task force “regarding conditions of 

confinement for pretrial detainees are not determinative of 

the requirements of the Constitution”); cf. J.K.J. v. Polk Cty., 

960 F.3d 367, 384 (7th Cir. 2020) (en banc) (concluding that the 

guidelines set by the Prison Rape Elimination Act do not set a 

constitutional parameter under the more demanding Monell 

deliberate indifference standard). Indeed, “while the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional 
No. 20-1792 23

minima; rather, they establish goals recommended by the organization in question.” Bell, 441 U.S. at 543 n.27. But even if 

not dispositive, implementation (and proper execution) of 

guidelines that express an expert agency’s views on best practices are certainly relevant to an objective reasonableness determination. United States v. Brown, 871 F.3d 532, 537 (7th Cir. 

2017) (noting that evidence of policy or procedure may be relevant to an objective reasonableness inquiry, even though it 

does not set the constitutional standard). This is particularly 

true here, where the CDC Guidelines provide the authoritative source of guidance on prevention and safety mechanisms 

for a novel coronavirus in a historic global pandemic where 

the public health standards are emerging and changing. 

The CDC Guidelines differ in material ways from the police department regulations at issue in our decision in Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006). In Thompson, 

we determined that a policy on the use of force established by 

the police department did not dictate the constitutional standard for the use of force. Id. at 454; see Brown, 871 F.3d at 537 

(clarifying the holding of Thompson). But the CDC Guidelines, 

arising from an expert, independent agency, are entitled to 

greater weight than a police department’s internally-crafted 

regulations. See Brown, 871 F.3d at 537 (“[I]f compliance with 

departmental policy were the applicable legal standard, the 

police department itself would become the arbiter of Fourth 

Amendment reasonableness—a prospect that would have 

horrified those responsible for the Amendment’s ratification.”). The district court thus properly relied on these Guidelines in the course of its preliminary injunction analysis. 

We note that, as it did with its discussion of Plaintiffs’ request for an order precluding double celling and group 
24 No. 20-1792

housing arrangements, the district court made only a passing 

reference to the Sheriff’s interest in managing Jail facilities 

and its obligation to defer to policies and practices necessary 

to preserve order and security. Likewise, the court did not 

meaningfully discuss this deference in its analysis. We are less 

troubled, though, given the nature of the relief ordered. 

Whereas safety and security concerns are fundamental to 

housing assignments, this is not true to the same degree for 

measures pertaining to sanitation, testing, and providing 

facemasks. We therefore do not find legal error. 

Lastly, we address a motion by the Sheriff to supplement 

the record with a CDC report—entitled “Outbreak of COVID19 and Interventions in One of the Largest Jails in the United 

States—Cook County, IL, 2020”—and, alternatively, the Sheriff’s request that this Court take judicial notice of it. We deny 

the motion to supplement the record as the district court has 

yet to consider this document in the first instance. See Tonyan 

v. Dunham’s Athleisure Corp., 966 F.3d 681, 684 n.1 (7th Cir. 

2020). We similarly decline to take judicial notice. “The Federal Rules of Evidence permit a court to take judicial notice of 

a fact that is ‘not subject to reasonable dispute’ because it is 

‘generally known’ or ‘can be accurately and readily determined from sources whose accuracy cannot reasonably be 

questioned.’” United States v. De La Torre, 940 F.3d 938, 952 

(7th Cir. 2019) (quoting Fed. R. Evid. 201(b)). The contents of 

this report—the Sheriff’s COVID-19 interventions and their 

purported impact—are not “‘generally known,’ at least to us.” 

Id. Further, we cannot determine if the sources can reasonably 

be questioned because the parties dispute who authored the 

report and the district court has not had the opportunity to 

make any factual findings on the author. Nor are the contents 

“incontrovertible,” as its authors “were not subject to Daubert
No. 20-1792 25

challenges, cross-examined, or tested with competing expert 

testimony.” Id. The contents of the report are thus “arguably 

subject to reasonable dispute,” and therefore are not a proper 

subject of judicial notice. 

III. Conclusion 

We commend Judge Kennelly for his handling of the motion, particularly in light of the many novel issues posed by 

the onset of COVID-19 and the case’s emergent nature. We 

nevertheless REVERSE in part and VACATE the portion of the 

preliminary injunction precluding double celling and group 

housing because of the legal errors that arose as the district 

court applied the objective reasonableness standard recently 

announced in Kingsley. We AFFIRM the remainder of the preliminary injunction ruling.