IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ANTHONY MAYS, et al., 

Plaintiffs, 

v. 

THOMAS J. DART, Sheriff of Cook 

County, 

Defendant. 

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Case No. 20-CV-2134 

Hon. Robert W. Gettleman, 

District Court Judge 

Hon. M. David Weisman, 

Magistrate Judge 

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MAY 6, 2020 FILING AND MOTION 

TO STRIKE PLAINTIFFS’ REQUEST FOR EXPEDITED DISCOVERY 

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NOW COMES the Defendant, THOMAS J. DART, in his Official Capacity as 

Sheriff of Cook County, and for his Response to Plaintiffs’ May 6, 2020 Filing and Motion 

to Strike Plaintiffs’ Request for Expedited Discovery, at the Court’s request (Dkt. 86), 

states as follows: 

INTRODUCTION 

The unprecedented coronavirus pandemic has changed our way of life generally. 

Against this backdrop, the Sheriff’s Office must continue to operate one of the largest 

single-site jail complexes in the nation, whose primary obligation is to protect the safety 

and security of detainees, staff, and the community at large. For the past six weeks, this 

litigation has drained the energy and expertise of the Sheriff’s Office’s front line staff. It 

is all the more critical now, where the Sheriff’s Office has few resources left to lose. 

Plaintiffs’ May 6, 2020, “response” is improper, and not only because it was 

unsolicited and filed without leave. Substantively, it is at least a motion to reconsider or 

to modify the terms of the April 27, 2020 Injunction Order. At most, it is a cryptic attempt 

to seek an order of contempt against the Sheriff for purported noncompliance with the 

injunction. In either event, the “response” is an end run around the procedural 

requirement that if Plaintiffs seek affirmative relief, they must file an affirmative motion 

to do so—and bear the significant burdens that go along with those extraordinary 

remedies. Specifically, if Plaintiffs are suggesting that the Sheriff is noncompliant with 

the Order as it is written, despite his attestation of compliance and all credible evidence 

to the contrary, then Plaintiffs must prove contempt by clear and convincing evidence. 

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What Plaintiffs cannot do, however, is make an unsubstantiated assertion of 

noncompliance as a method of obtaining expedited discovery in an attempt to explore 

and perhaps prove noncompliance. Plaintiffs’ request for “expedited discovery” itself is 

improper and must be stricken. Plaintiffs suggest that they are entitled to this discovery 

to allow them to “monitor” the Sheriff’s compliance with the Order. However, this 

request was previously made and rejected by the Court. Additionally, the discovery 

requests are irrelevant to the actual terms of the injunction, and instead pertain to the 

terms that Plaintiffs wish the Court had included in its Order. 

Finally, after recent legal developments and reflection upon the impact a 

preliminary injunction will have on the Sheriff’s ability to execute his primary obligation 

to safely and effectively operate the Jail, he is simultaneously seeking appeal of the 

preliminary injunction order and seeking a request to stay enforcement of all 

proceedings, including a stay of enforcement of the injunction, pending appeal. 

I. THE HISTORY OF THE SHERIFF’S PREPARATION FOR CORONAVIRUS 

AND ONGOING RESPONSE TO IT 

Months before the coronavirus reached Chicago, the Sheriff’s Office began 

mobilizing all operational and administrative teams to begin preparing the Jail to cope 

with a possible coronavirus outbreak at the Jail. He was keenly aware of the challenges 

of operating a jail while also managing a public health emergency. He retained expert 

consultants to design protocols and policies to help alleviate the spread of the virus 

throughout the Jail. He worked extensively with Cermak Health Services, the entity that 

provides all in-house medical care to detainees, in establishing a pandemic plan for if and 

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when the virus impacted the Jail. He lobbied federal, state, and local elected officials to 

get access to prophylactic supplies and facilitate testing at the Jail. He began coordinating 

with stakeholders in the criminal justice system to identify detainees who would be 

suitable for release from the Jail, all before the first confirmed case of COVID-19 infection 

was detected at the Jail. And he and his staff have continued to this day to vigilantly 

implement every possible safeguard in the Jail to protect detainees and Sheriff’s Office 

employees from contracting or spreading the disease within the Jail. 

As early as January 24, Roland Lankah, the in-house Environmental Health 

Specialist and epidemiologist in the Cook County Sheriff’s Office, began coordinating 

with the Cook County Health Infection Control Department to develop a plan for the Jail 

in the event of an outbreak. Even at that early stage, Lankah activated the emergency 

protocols for sanitation and increased cleaning and sanitization throughout the Jail. Over 

the next few weeks, the Enhanced Sanitation and Preventative Daily Cleaning and 

Disinfection procedure had been implemented throughout the Jail. The policy provided 

instructions for increased sanitization of shared workspaces, the housing units, and the 

kitchen. It also provided specific instructions for sanitizing the quarantine and isolation 

tiers and dorms, including food trays and carts, and laundry. Dkt. 30-9, p. 3-4. 

Lankah also identified the intake process and the urgent care facility within the 

Jail as the most likely points of entry for the virus. Dkt. 30-9, p. 2; Dkt. 30-8, p. 7. The 

urgent care facility in the Residential Treatment Unit (RTU) is operated by Cermak 

Health Services, a division of the Cook County Health and Hospital Systems (CCHHS), 

and the Chair of Correctional Health, Dr. Concetta Mennella. Cermak also operates a 

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more traditional hospital housing tier uniquely situated in Division 8 of the Jail, which 

provides 24/7 medical and psychiatric care for all detainees. Although Cermak is a 

separate and distinct entity from CCSO and does not report to CCSO, Cermak works 

closely with CCDOC to coordinate medical and special housing needs for detainees. Dkt. 

30-6, p. 3; Dkt. 29-1, p. 11, 13. 

At that time, Dr. Mennella, was also beginning to implement new medical 

protocols to screen detainees for flu-like symptoms at intake and at RTU with the “Novel 

Coronavirus Screening Tool.” Any individual displaying possible signs of infection was 

given a surgical mask and immediately brought to the RTU for further evaluation. Soon 

after, she enacted enhanced screening and treatment protocols in the Jail and sought to 

obtain coronavirus testing materials. Dkt. 30-6; Dkt. 29-1, p. 10. 

Dr. Mennella also began creating a strategy for housing infected detainees in the 

event of an outbreak, according to standards articulated by the Centers for Disease 

Control (CDC) and the Chicago Department of Public Health, which has primary 

jurisdiction over the Jail. Detainees who were suspected of having COVID-19 symptoms, 

known as persons under investigation (PUI), were tested for the infection and would be 

isolated awaiting the results of those tests (testing isolation). Dkt. 30-6, p. 2. If detainees 

tested positive, they would be housed in a separate isolation tier (medical isolation). Once 

a PUI or COVID-positive detainee was transferred to isolation tiers, his living areas 

would be disinfected and sanitized and the entire tier would be quarantined for a period 

of 14 days and monitored for possible manifestation of symptoms. Dkt. 30-6, p. 2-3. Dr. 

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Mennella coordinated with Department of Corrections staff to identify the suitable 

locations for the isolation tiers. Dkt. 30-6; Dkt. 62-5, p. 2. 

Sheriff’s Office Chief of Staff Brad Curry was also preparing emergency 

operational and staffing protocols in anticipation of a possible outbreak among the Jail 

population of 5,710 detainees at that point. Dkt. 31-3, p. 2-3. Within days of Governor 

Pritzker declaring Illinois a disaster area on March 9, the Sheriff’s Office had created the 

Critical Incident Command Center (CICC), which monitored all COVID-related factors 

that could affect CCSO operations. One of the first orders of business was to set up a 

separate area for all new detainees upon intake into the Jail to remain in isolation for a 

period of 7 (now at least 14 days) before they were assigned to their housing tiers among 

the general population. The Sheriff’s Office also began restricting access for all outside 

visitors, and required COVID screening and temperature checks for those few people 

who were permitted entry. Dkt. 31-3, p. 3-4. 

On March 12, the Sheriff’s Office enacted the first iteration of its comprehensive 

Coronavirus Operation Plan, which continues to be updated in real time to reflect the 

ever-changing recommendations of public health agencies. Dkt. 40-1, pp. 6-10. The 

Coronavirus Operation Plan is based largely on the “Interim Guidance on Management 

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

Guidance), and as it is interpreted and relayed through IDPH and CDPH to the Sheriff’s 

Office. Importantly, the CDC recognizes that “the guidance may need to be adapted 

based on individual facilities’ physical space, staffing, population, operations, and other 

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resources and conditions,” but jails should work with their state and local public health 

departments for guidance. Dkt. 30-15 

By this point, Curry had already been sending out daily messages to all staff with 

information about the nature of the coronavirus, the common signs and symptoms of 

infection, social distancing, and handwashing and hygienic products like facemasks to 

prevent transmission. Cermak was providing the same instruction to detainees to enable 

them to recognize and report symptoms, and to guard against further infection. Curry 

also was communicating with officers daily to inform them of newly-implemented 

policies, suspension of many detainees group programs, instruction on carrying them 

out, and reporting and monitoring protocols. Dkt. 31-3, p. 3-4; 30-14, p. 3. These 

instructions and explanations of preventative measures were also conveyed to the 

detainees and staff through video programs that played throughout the day on the 

televisions in each of the tiers. 30-14, p.4. 

Structurally, First Assistant Executive Director Michel Miller was also beginning 

to prepare new divisions of the Jail to house detainees, whether as isolation tiers, or to 

create space to allow for more single-celled living units and reduce the occupation 

density in the dorms. Dkt. 62, p. 20-22; Dkt. 84, p. 18-20; 4/23/20 Hrg. Tr. 13:18-14:10. In 

mid-March, CCDOC began converting the Mental Health Transition Center to a 500-bed 

isolation unit. He worked with the Cook County Department of Emergency Management 

and Regional Security (DEMRS) to obtain tents that could be used for overflow housing. 

Dkt. 31-3, p. 3-4. 

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Elsewhere within the CCSO organization, before the President had even declared 

a national state of emergency on March 13, Senior Advisor Rebecca Levin, MPH, had 

been in daily contact with local and regional public health agencies, including CDPH, 

IDPH, and CCHHS, as well as local elected officials. She coordinated with these agencies 

to learn the most up-to-date information on housing and testing requirements, 

recommendations on the use of personal protective equipment (PPE), sanitation 

protocols, and best practices for minimizing the public health risk upon a detainee’s 

release. With this information, she crafted new policies to be implemented at the Jail. 

Levin also created training programs related to these new policies and trained officers 

directly. As in the larger community, Levin worked primarily to “flatten the curve” 

within the Jail, which means not exceeding isolation housing or workforce capacity and 

slowing the overall spread of the virus throughout the Jail. 30-7, p. 1-3. 

Levin also worked with Senator Richard Durbin’s office, FEMA, and Governor 

Pritzker’s office, among others, proactively seeking clearance for the Jail to receive 

priority access to the national strategic stockpile of PPE supplies in Illinois. Dkt. 30-7, p. 

5. Assistant General Counsel Elizabeth Scannell continued to follow up with these 

agencies on a daily basis for the next several weeks to ultimately secure delivery of PPE, 

including masks, gloves, gowns, and eye protection, in a time of nationwide supply 

shortages. Dkt. 30-11, p. 2-4. 

On March 18, CCSO retained sanitation expert, Harry Grenawitzke, as an expert 

consultant to review and improve the sanitation policies at the Jail. Grenawitzke had 

served as a court-appointed monitor at the Jail under the Department of Justice Consent 

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Decree several years before, and was intimately familiar with the infrastructure at the 

Jail. Levin worked closely with Grenawitzke to turn his recommendations into more 

refined sanitation policies and procedures. Grenawitzke recommended sending staff a 

“health tip of the day” email highlighting the latest health information, which was 

implemented. He also recommended creating a video demonstrating proper 

handwashing and sanitation techniques for staff training purposes, in which Levin 

starred. He reviewed the latest public health agency guidelines and counseled Levin on 

any effect they may have had on existing CCSO policies. Dkt. 30-7, p. 4-5; Dkt. 31-3, p. 3. 

On March 18, CCSO also began working directly with various stakeholders in the 

criminal justice system in a shared undertaking to reduce the Jail population, which was 

about 5,600 detainees at that time. Dkt. 30-2, p. 4. Although the Sheriff has no authority 

to release any pretrial detainees, who are remanded to his custody by order of the court 

as a condition of bond, he conferred with the Office of the Cook County President, the 

Cook County Public Defender, the Cook County State’s Attorney, and the Office of the 

Chief Judge of the Cook County Circuit Court to identify any detainees who could be 

safely released from custody while awaiting trial. CCSO worked through its Sheriff’s 

Justice Institute, which is led by Henriette Gratteau, a former director of the corrections 

reform advocacy group, The John Howard Association. Dkt. 30-2, p. 2-3. The Sheriff also 

worked with these stakeholders to consolidate court proceedings and avoid as much faceto-face interaction possible. Dkt. 31-3, p. 3. 

As a result of this process, on March 20, the Public Defender filed a petition with 

the Presiding Judge of the Criminal Court seeking mass release for a number of offenders, 

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including a particular subgroup detainees who may have medical conditions that put 

them at heightened risk of infection. Dkt. 30-3. Coincidentally, counsel for the Plaintiffs 

also filed an amicus brief in support of this petition. Dkt. 30-4. The court declined to order 

mass release due to the inherently individualized nature of that process, but on March 

27, established a week-long process by which detainees could seek expedited and 

streamlined bond review hearings in the criminal courts, for the detainees represented 

by the Public Defender, as well as any others who sought review. Dkt. 31-1. Through this 

process, the Sheriff assisted the stakeholders in securing release or electronic monitoring 

status for over 1,200 detainees. 

For context, the Governor imposed the statewide shelter in place on March 20. At 

around this time, CCDOC also began working in earnest to begin opening previouslyclosed divisions of the Jail and preparing them for future occupancy. In total, it opened 

Divisions 4 and 5, the “bootcamp” building in the Mental Health Transition Center, and 

Dorms 1, 3, and 4 in Division 2. This required deep cleaning the buildings, reconnecting 

utilities, staffing it with a team of correctional officers, arranging meal and medication 

deliveries, among other things, on a very expedited schedule. Dkt. 31-3, p. 3; Dkt. 62-5, p. 

2. By March 26, CCDOC would add another 500 beds for isolation housing in the 

Bootcamp facility in Divison 16. Dkt. 40-2. 

On March 23, the Sheriff retained Dr. Peter Orris as an expert consultant. Dr. Orris 

is the Chief of Occupational and Environmental Health at the University of Illinois Health 

System. He is the former Midwest Regional Director for the National Institute for 

Occupational Safety and Health for the CDC, and a former adviser to the World Health 

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Organization, federal governments, unions, and corporations. Levin worked closely with 

Dr. Orris to implement his recommendations. Dkt. 30-7, p. 3-4. 

In light of jail staff’s ingress and egress from the Jail, he consulted on processes 

relating to medical screenings for staff, return to work policies after missing work due to 

COVID-like symptoms, and monitored other developments in guidance issued by CDC 

and CDPH on essential workers. Dr. Orris toured the Jail with representatives from the 

Teamsters Local 700, which represents correctional officers, to observe best practices in 

place to prevent and mitigate the spread of coronavirus. CCSO began implementing more 

guidelines on jail staff health and restrictions on their movement to reduce the risk of 

transmission due to their ingress and egress to the Jail on a daily basis. Jail staff had to 

have their temperature taken twice before reporting for duty. They were restricted to 

working in the same division and not moving throughout the complex. New contingency 

plans were drawn up to account for any possible staff shortages. Dkt. 30-18. Indeed, 

CCSO eventually reassigned all current cadets from the Training Academy and more 

than 200 courtroom deputies to the Jail since the academy and courthouses were closed. 

4/23/20 Hrg. Tr., 138:23-139:1; Dkt. 31-3. 

Dr. Orris also consulted on the need for jail staff to use PPE. His recommendations 

led to the creation of the PPE Accountability Task Force to monitor adequate supplies 

and proper use of PPE throughout the Jail. Dkt. 30-7, p. 3-4. By April 1, Levin had trained 

the PPE Accountability Teams and they were operating on every shift to ensure adequate 

supplies and provide guidance to officers. Levin also worked with Dr. Orris to develop 

handouts and illustrated instructions for use of PPE, which follows the CDC Guidance. 

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Dkt. 30-7, p. 6. By April 1, a mandatory computerized staff training module had been 

released on PPE regulations. Dr. Orris remarked on the significant efforts the Sheriff’s 

Office had taken to forecast need for PPE and to secure supplies to avoid a shortage. He 

noted that it was “clear they [were] proactively working to develop plans and policies to 

protect detainees and employees working inside the [CCDOC] from the dangers of 

COVID-19, including seeking input, guidance, and help” from public health agencies and 

medical professionals. Dkt. 30-18; Dkt. 30-7, p. 5. 

On March 23, the first confirmed case of COVID-19 infection was reported at the 

Jail. Levin worked with her contacts at CDPH to schedule a field visit at the Jail to assist 

in advising on the Jail’s practices and particularly its compliance with the CDC Guidance. 

Dkt. 70, p. 5 (“Wherever possible, these recommendations [from CDPH] follow CDC 

guidance and account for local conditions”). On March 26, Stephanie Black from CDPH 

and Dr. Isaac Ghinai, a CDC Epidemiological Intelligence Service Officer detailed to 

CDPH, conducted a half-day tour of the Jail. They issued a report listing some of their 

observations and making recommendations for additional procedures that should be 

implemented at the Jail. Dkt. 70, pp. 2, 5-10. 

Most of the recommendations were already in process at the Jail and were being 

monitored for progress. The letter also commented on the need to establish adequate 

quarantine and isolation housing, for which planning had been underway for weeks. 

They also suggested that CCDOC attempt to implement social distancing, or make any 

adjustments possible to increase distance between detainees, particularly while sleeping, 

but specifically noted the difficulty involved with “extremely limited” space. Dkt. 70, p. 

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8. They also suggested reducing the Jail population to help alleviate that issue, which was 

currently occurring through the criminal court’s expedited bond modification 

proceedings, which would eventually secure the release of more than 1,200 detainees. 

Dkt. 70, pp. 5-10. By March 29, the population was down to 4,802. Dkt. 30-2. 

At this time, Scannell continued to contact various agencies on a daily basis to 

secure PPE. On April 1, she also reached out to IDPH and other local authorities seeking 

to have the Jail approved as one of the first test sites in the nation where Abbott 

Laboratory’s newly-developed ID Now coronavirus rapid test kits would be 

administered. Ultimately, Cermak was approved to administer the rapid tests, which 

would provide results in a matter of minutes, rather than several days, as with the 

traditional nasopharyngeal nasal swab tests that had been used for the past several 

weeks. Dkt. 52-2, p. 2. After appropriate training and approval, Cermak began 

administering the rapid testing kits on April 10. This would allow them to identify 

COVID-positive detainees and remove them to isolation tiers sooner. Dkt. 52-2, p. 2. 

CCSO remained alert for the frequent adjustments to the public health agencies’ 

updates on recommended practices and procedures, and had well-structured systems in 

place to implement these adjustments. For example, by April 2, CCSO implemented a 

revised policy requiring all staff entering the Jail to wear surgical masks, based on 

recently updated IDPH guidelines. Dkt. 30-7, p. 5. The Jail continued to evaluate the 

evolving guidance on whether masks were required for detainees in the general 

population, and whether they should receive surgical masks or cloth masks, as 

recommended for the general public. By April 6, CCSO implemented a program with 

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Roseland Hospital to be the official COVID-19 testing site for all Jail staff, given their 

movement in and out of the Jail. Dkt. 31-3, p. 5. 

II. THE HISTORY OF THIS LITIGATION RELATIVE TO THE SHERIFF’S 

ONGOING CONTAINMENT EFFORTS AT THE JAIL 

Notwithstanding all of the above, on April 3, Plaintiffs filed their complaint and 

request for a temporary restraining order. They never made contact with the Sheriff’s 

Office to find out what was being done to protect against infection in the Jail. They never 

contacted the Sheriff’s Office to suggest they had perhaps received a report about a lapse 

in execution of containment efforts. Rather, they filed this lawsuit—demanding that the 

Sheriff implement “the CDC Guidance for managing detention and correctional 

facilities.” Dkt. 2, p. 17-18; Dkt. 29-1, p. 7-8. To be clear, there was no allegation that they 

were not properly executing the requirements of the CDC Guidance that had been 

implemented. They flatly claimed that the Sheriff had done nothing to mitigate the spread 

of COVID-19 within the Jail and that “chaos is reigning.” Dkt. 2, p. 9. They sought 

categorical release of an unspecified number of detainees in a class-wide habeas 

proceeding. Failing that, they sought an injunction forcing the Sheriff to “acquire rapid 

testing” (although it had not even received FDA approval yet); create quarantine and 

isolation housing; provide PPE and sanitation products to all detainees; and instruct staff 

on the importance of sanitizing surfaces and objects and ensure that they were being 

cleaned. Dkt. 2, p. 17-18. Notably, they included a perfunctory request for social 

distancing “to the maximum extent possible.” Dkt. 2, p. 15 

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From a legal perspective, Plaintiffs were required to demonstrate that the actions 

taken by the Sheriff to mitigate the spread of coronavirus at the Jail were not objectively 

reasonable. Dkt. 29-1, p. 14. As outlined above, by April 3, the Sheriff had been consulting 

with representatives from the CDPH and CDC in the Jail, along with his own retained 

experts, for weeks, receiving direct and targeted guidance from these consultants on 

mitigation efforts. Detainees were already housed in isolation and quarantine tiers. Task 

forces were already monitoring and documenting implementation and compliance with 

sanitation and PPE policies in the Jail that were based directly on the CDC Guidance. 

CCDOC was opening previously-closed divisions of the Jail to allow for more distanced 

housing, where possible. Additionally, by that point, more than 1,200 detainees had been 

released in less than a month’s time, and the number of detainees on electronic 

monitoring was reaching a record high. Dkt. 30-2. 

Based on the Plaintiffs’ allegations, it was difficult to imagine how the Sheriff’s 

actions could not be viewed as objectively reasonable, considering he was doing precisely 

what Plaintiffs said he should be doing to mitigate the spread of infection, and more. The 

Sheriff countered Plaintiffs’ claims with the realities of what had been done, as well as 

noting the continuing efforts to fully implement the Coronavirus Operation Plan and 

related procedures at the Jail. Dkt. 29-1. 

While the Sheriff was making efforts to increase spacing in the housing areas, 

particularly by opening previously closed tiers of the Jail, the Court acknowledged that 

“the CDC’s [G]uidance expressly recognizes that complete social distancing may not be 

possible in the sleeping areas of a jail.” Dkt. 47, p. 25. Because “space constraints at the 

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Jail do not allow for the more preferable degree of social distancing that exists in the 

community at large,” these limitations “require a departure from better social-distancing 

practices.” Dkt. 47, p. 25. 

Nevertheless, the Court on its own apparently believed that more could be done 

to enact social distancing during the intake process, even though the intake population 

had decreased significantly. It thus directed the Sheriff, of its own volition, to suspend 

the use of bullpens and revise the intake process to allow for social distancing. Dkt. 51, 

pp. 3-8. It otherwise directed the Sheriff to continue supplying sufficient amounts of soap 

to detainees; to continue supplying adequate sanitizing products and document proper 

cleaning procedures; to provide facemasks to detainees in quarantined tiers1; and to 

create a written policy to codify the practice of referring symptomatic detainees to 

Cermak for testing. Dkt. 47, pp. 33-35. To the extent the Court sought medical testing 

protocols, the Sheriff provided declarations from Dr. Mennella on behalf of Cermak as to 

their medical testing protocols, which are based on current CDC and CDPH guidance. 

Dkt. 51, p. 8-16. 

The Sheriff filed his report documenting implementation of the Court’s directives 

and compliance with the terms of the TRO. Dkt. 51. Plaintiffs took no issue with the 

Sheriff’s practices on sanitation, PPE, and social distancing at intake. Dkt. 55, p. 3-4. 

Rather, in their renewed motion for preliminary injunction, Plaintiffs acknowledge that 

 

1 At the time the lawsuit was filed, the Sheriff’s Office had in reserve approximately 27,000 surgical masks, 

which would have been exhausted by staff alone in less than a month. That number now stands at over 

519,000 masks for distribution to both staff and detainees 

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the very relief they once requested is insufficient, and the standards they once sought to 

have implemented are inadequate, as they pursue entirely new challenges. It is what the 

Sheriff can only characterize as constitutional whack-a-mole. Dkt. 62, p. 17. Plaintiffs 

instead demanded that strict 6-foot social distancing be ordered throughout the Jail at all 

times, notwithstanding the fact that the Court previously rejected that demand, given the 

structural and/or operational limitations that prevent the Sheriff from accomplishing 

that in the Jail, as recognized in the CDC Guidance. Yet, Plaintiffs chose to force the issue: 

if it was possible to practice “full” social distancing at the Jail, the Court must order it 

immediately. If it was not, they argued, then the Court must categorically release 

detainees en masse either through a writ of habeas corpus, or a prison release order under 

the Prisoner Litigation Reform Act. Dkt. 55, p. 8-20. 

The Sheriff again argued it is objectively reasonable under the constitution to 

follow the CDC Guidance on social distancing in a correctional facility, as the Court and 

Plaintiffs themselves, at one time, recognized. At the very least, substantially complying 

with the CDC Guidance, in addition to all of the other extraordinary actions taken by the 

Sheriff in response to the pandemic cannot be deemed objectively unreasonable. 

In any event, Plaintiffs have no remedy because their claims for release are 

procedurally barred, as Judge Dow recently held in Money v. Pritzker, 2020 U.S. Dist. 

LEXIS 63599 (N.D. Ill.). Dkt. 61, 6-15. The Sheriff has made significant efforts to permit 

social distancing, but without the permitted allowances for special housing designations 

at RTU and Cermak, psychiatric impacts, cohort housing in isolation and convalescent 

tiers, restricted movement in quarantine tiers, and 50% occupancy allowances in dorms, 

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the Sheriff could not presently accomplish “full” social distancing in the Jail. Dkt. 61, p. 

19-23. Critically, the Sheriff also expressed the need to be able to prioritize safety and 

security over social distancing at the Jail at those times when it is necessary to 

immediately control a dangerous situation, such as when separating and isolating many 

detainees involved in a large-scale fight or incident. 

During a brief evidentiary hearing on the injunction, the Court once again 

recognized the extraordinary efforts taken by the Sheriff on social distancing, but 

appeared to believe that there was more the Sheriff could do. First Executive Director 

Michael Miller testified about the continued efforts to implement social distancing at the 

Jail. He testified about the dramatic increase in the number of detainees in single-celled 

housing (+545%) and the dramatic decrease in double-celled housing (-93%) over the past 

month; moving nearly all non-RTU dorms to less than 50% occupancy; and methods 

implemented to provide detainees with opportunities to practice social distancing in 

common areas. 

Director Miller also testified about an April 17 field tour of the Jail by a team of 

epidemiologists and public health officials from the CDC and CDPH in follow up to 

their tour a month earlier. He participated in the Jail tour, led by Lt. Commander Paige 

Armstrong, CDC Epidemiological Team Lead and Officer in the U.S. Public Health 

Service, and her CDC colleague, Alison Binder. Dkt. 70, p.2. Director Miller testified that 

the group chose several areas to visit within the entire Jail complex, including the intake 

area, the dorms and celled tiers, quarantine tiers, isolation tiers, and convalescent tiers. 

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Commander Armstrong and her colleagues commended the Jail team on their 

efforts. They specifically noted the prevalence of social distancing and recognized the 

much lower occupation density in the dorms since the last visit. They also commented 

on the cleanliness of the tiers and the notable bleach smell in particular. They observed 

social distancing being practiced and facemasks being worn, while also noting the 

universal difficulty in getting people to fully comply with these policies even in noncarceral environments. Dkt. 70, p. 2. In conclusion, Commander Armstrong stated: “You 

guys are doing an amazing job.” Dkt. 70, p. 2-3. 

Director Miller testified that even with the Jail population at a historic low of 4,233 

detainees, without the allowances for medical and security related housing decisions, it 

is not possible to practice social distancing. The Court then questioned Director Miller in 

great detail about the specific housing tiers and his justifications for making the housing 

assignment decisions at the Jail. 4/23/20 Hrg. Tr., 51:16-64:3. 

Despite its previous recognition that it was constitutional for the Sheriff to rely on 

the CDC Guidance on social distancing and implement it where possible in light of 

structural and operational limitations, the Court reversed course in its order granting the 

preliminary injunction. Dkt. 73, p. 62. It recognized the Sheriff’s “significant and 

impressive” effort to safeguard detainees from coronavirus and that the Sheriff has 

“acted in good faith” in doing so, but concluded that regardless of this good will, the 

Sheriff’s implementation of social distancing is objectively unreasonable because the 

Sheriff “has not yet hit the feasibility limit” on social distancing, and there is more he can 

do. Dkt. 73, p. 63. The Court then ordered the Sheriff to implement “full” social distancing 

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at the Jail, without allowances for feasibility considerations, but permitted six of the 

feasibility exceptions that the Sheriff sought. Dkt. 73, p. 64. 

In spirit of good faith, expedience, and in the short time permitted to evaluate next 

steps, the Sheriff accomplished full social distancing, as ordered, and remains in 

compliance with the Order today. The Sheriff expressly acknowledged that these 

arrangements may not be sustainable for the foreseeable future, given the ever changing 

nature of the detainee population and their specific housing needs. The Sheriff indicated 

that he may need to seek modification if necessary, as the Court appeared to invite. Dkt. 

84, p. 20. The Sheriff filed his report on May 1, as ordered, detailing all of these 

considerations. 

III. PLAINTIFFS’ “RESPONSE” IS AN IMPROPER ATTEMPT TO SEEK 

RECONSIDERATION OR MODIFICATION OF THE TERMS OF THE 

INJUNCTION, OR CIVIL CONTEMPT, AND EVADE THE HEIGHTENED 

BURDENS THEY IMPOSE 

Notwithstanding the fact that Plaintiffs’ May 6 “response” 

was filed without leave of court, it is an improper filing because it is in effect asking for 

new or revised relief that was considered and rejected by Judge Kennelly. They are 

seeking “expedited discovery” to investigate whether the Sheriff is compliant with terms 

that don’t exist in the Court’s order. If Plaintiffs are seeking entry of those additional 

terms, then they must seek do so in a motion to reconsider, or in a petition to modify the 

injunction. Zcm Asset Holding Co. v. Allamian, 2002 U.S. Dist. LEXIS 24471, *12-13 (N.D. Ill. 

2002). 

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Curiously, at the same time, Plaintiffs also appear to argue that the Sheriff is 

currently noncompliant with the terms of the injunction, and seek “expedited discovery” 

to document that. If that is Plaintiffs’ position, then the proper procedure is to file a rule 

to show cause and seek an order of civil contempt, which must be proved by clear and 

convincing evidence. Maynard v. Nygren, 332 F.3d 462, 469 (7th Cir. 2003). However, they 

cannot argue noncompliance and then use that alleged noncompliance as a basis for 

seeking expedited discovery to prove noncompliance, which is precisely what they are 

trying to do here. 

In either case, Plaintiffs bear a substantial burden to convince the Court that any 

modification order or finding of contempt is warranted here. That relief is not likely, 

given that the Sheriff has reported and demonstrated full compliance with the order, 

apparently to the emergency judge’s satisfaction, since the matter has now been returned 

to this Court. Nevertheless, Plaintiffs cannot evade their substantial burdens in the first 

instance by trying to obtain affirmative relief buried in an unsolicited “response” and 

demand for “expedited discovery” that is far broader and more intrusive than any 

previous request has been. While there is nothing properly before the Court for 

consideration, the Sheriff requests that in the interest of completeness, the Court strike 

Plaintiffs’ “request” for expedited discovery. 

Plaintiffs’ entire filing is premised on two primary misconceptions, although there 

are others: (1) they appear to believe that they have a right to monitor the Sheriff’s 

compliance on behalf of the Court and demand regular reporting by the Sheriff; and (2) 

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they grossly misconstrue the Court’s order and the Sheriff’s report and draw 

questionable inferences that strain credibility. 

Despite the Court’s stated satisfaction with, and commendation of, the Sheriff’s 

compliance with the TRO order, it nevertheless converted the TRO to a preliminary 

injunction and ordered the following relief on April 27: to maintain the testing protocols 

previously ordered, except that testing decisions may not be based on the sufficiency of 

testing materials; to maintain the social distancing procedures at intake that were 

previously ordered; to maintain the soap and/or hand sanitizer distribution that was 

previously ordered; to provide sanitation supplies and ensure adequate cleaning of 

common areas as previously ordered; to continue providing quarantined detainees with 

facemasks as previously ordered; and to establish a policy precluding group housing or 

double celling of detainees, except as permitted in six enumerated exceptions, nearly all 

of those exceptions sought by the Sheriff. Dkt. 73, p. 85-87. 

The Court ordered the Sheriff to file a status report on May 1. It also suggested it 

would entertain further argument on the Sheriff’s rejected request for a security exception 

to social distancing, the duration of the injunction, and an invitation to seek relief from 

the terms of the injunction in the future. Beyond that, the Court ordered no further relief. 

It did not order any further filings by the parties. It did not direct the Sheriff to provide 

Plaintiffs with any ongoing reporting of any kind. Dkt. 73, p. 85-87. 

Nevertheless, Plaintiffs variously state that they are seeking to “monitor 

compliance” with the injunction order; “track the Sheriff’s compliance with the order”; 

and “clarify the extent of noncompliance” by the Sheriff. Dkt. 85, pp. 2, 13, 18. It is possible 

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there may be a mechanism by which Plaintiffs can seek discovery, if they decide to 

proceed on their complaint in a nonemergency proceeding. Their demands are not of this 

character. Not only are they not entitled to any affirmative reporting on compliance with 

the injunction order by the Sheriff to them on the Court’s behalf, their discovery requests 

are not even relevant to the actual terms of the injunction order, as discussed below. 

To be clear, the Sheriff stated in no uncertain terms in his May 1 Report that he 

was fully compliant with the Order, and he remains so today. Dkt. 84, p. 5-8, 20. Plaintiffs’ 

suggestion that the Sheriff has admitted otherwise is misguided and is based on rather 

tenuous inferences. As to medical testing, contrary to Plaintiffs’ contention, the Sheriff 

has filed scores of documents and declarations obtained from Cermak that set forth its 

testing protocols, including when testing is indicated and how symptoms present. See 

e.g., Dkt. 84, p. 2-6; Dkt. 85, p. 3-4. This information was before the Court when it ruled, 

and it was satisfied that the policies were justified. There has been no further request for 

clarification from the Court about Cermak’s testing policies, and Plaintiffs are not entitled 

to any more than that. If the Court has any further inquiries about testing, those should 

be directed to Cermak directly, as the Sheriff has no involvement in determining testing 

protocols or oversight of Cermak. 

The Court also never ordered the Sheriff or Cermak to report on the identification 

of any detainees who were or were not tested. Nor is there any merit to Plaintiffs’ unusual 

reading of the Court’s order, suggesting that the Court ordered all quarantined, 

asymptomatic detainees to be tested in due course, regardless of whether it is medically 

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indicated or not. That is directly contrary to what the Court actually ordered, which is 

that any testing be based on medical appropriateness. Dkt. 73, p. 85. 

Plaintiffs also make the brazen claim that the Sheriff has “removed PREA 

detainees from protective custody and dispersed them throughout the Jail, at great risk 

to their safety.” Dkt. 85, p. 6. The protective custody detainees were moved from a dorm 

in a more secluded area of the Jail to a single-celled tier. They remain in protective 

custody, they remain housed together on the same tier, and they remain fully protected. 

The Sheriff made the point that the Court’s preliminary injunction order impacted the 

normal practice of housing those detainees who may now encounter other detainees in 

the common areas of the Jail that they otherwise would not have in their prior housing 

unit. 

As to identification and segregated housing for medically vulnerable detainees 

(Dkt. 85, p. 7-10), Plaintiffs argument is an open request for reconsideration of the Court’s 

order rejecting this relief. The Court determined that this may be a “good practice,” but 

was not a constitutionally required practice, and failing to do so is not objectively 

unreasonable. Dkt. 73, p. 66. Moreover, the Sheriff has described at length the nature of 

the medical alerts used to determine housing assignments, but otherwise, does not have 

the type of information Plaintiffs think he should have. Dkt. 85, p. 8. Plaintiffs also grossly 

misunderstand RTU and Cermak housing, particularly relative to the Court’s 

understanding as reflected in its order. They appear to take issue with the social 

distancing exceptions allowed by the Court as to specialized medical housing, which may 

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be remedied through modification, but is not subject to exploratory discovery. If they 

wish to challenge these exceptions, they can seek to modify the order. Dkt. 85, p. 9-10. 

The same is true of Plaintiffs’ apparent challenge to the Court’s order regarding 

enforcement of housing and appropriate spacing within the celled and dormitory living 

units. Director Miller testified about the process for encouraging social distancing, at the 

division level, and through the accountability task force members and detainee 

education, which apparently satisfied the Court that adequate enforcement processes 

were in place. Plaintiffs suggest that detainees are not social distancing, which is not what 

the Court ordered. Besides specific demands during the intake process, the Court ordered 

housing of detainees be completed within specific restrictions and expirations. 

While there is no proper motion pending before the Court, for the sake of 

completeness, Plaintiffs’ discovery requests must be stricken. The discovery sought is 

largely irrelevant to the injunction order and overly burdensome, as is any request to 

update the reporting on an ongoing basis. The burden may have been relaxed while 

Plaintiffs sought preliminary relief, but they cannot escape their heightened burdens to 

persuade the Court to modify the terms of the injunction or enter an order of civil 

contempt if they challenge compliance. 

IV. STATEMENT REGARDING THE SHERIFF’S PURSUIT OF APPELLATE 

RELIEF 

 In the past two weeks, three different circuit courts of appeal have determined that 

a district court may not micromanage the complex day-to-day operations of running a 

jail, particularly not under threat of contempt, even as they work to maintain operational 

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security in the Jail in the midst of a global pandemic. On May 5, 2020, the 11th Circuit 

issued an opinion Swain v. Junior, 2020 U.S. App. LEXIS 14301 (11th Cir., May 5, 2020), 

staying enforcement of a mandatory preliminary injunction, styled much as the 

injunction order in this case, that put the district court in the role of a “super-warden.” 

Swain, 2020 U.S. App. LEXIS 14301, *14. While the posture of that case may be different, 

the policy behind it is sound, and is deeply embedded in United States Supreme Court 

precedent, particularly in examining the harm resulting from a district court’s 

unnecessary interference with jail operations “under pain of contempt.” Id. See also 

Valentine v. Collier, 2020 U.S. App. LEXIS 12941 (5th Cir., Apr. 22, 2020); Roman v. Wolf, 

2020 U.S. App. LEXIS 14331 (9th Cir., May 5, 2020). 

With the momentum of the appellate courts’ reasoning and time to consider the 

effect of the mandatory injunction on daily jail operations in this case, the Sheriff is 

simultaneously filing his notice of appeal from the April 27 Order. It has been clear 

throughout this litigation that Plaintiffs’ counsel lack appreciation for the complexities of 

jail operations in ordinary times, to say nothing of these times of uncertainty. They have 

persisted in this litigation with no understanding of the enormous burden it places on the 

Sheriff’s Office staff and for minimal gain, as nearly all of the relief they have pursued 

has long been in place at the Jail. Rather, it has become apparent that Plaintiffs’ counsel 

has been singularly focused on categorial release at all costs—arguably pursuing a 

political decarceration policy through misuse of the legal process in the middle of a 

pandemic—and their cries for release will only intensify and cause further distraction for 

the Sheriff as long as this injunction remains in place. The perverse consequence is that 

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their focus on release fills their clients with false hope, stoking further anxiety, frustration, 

and unrest in the Jail setting, which has manifested in detainee misconduct. Dkt. 84, p. 

18-20. The Sheriff is a strong proponent of social justice, and has assisted the courts and 

other stakeholders to obtain release for eligible detainees, but pursued in the right way. 

In light of the fact that the Coronavirus Operation Plan has been in place and 

dutifully executed since early March, Plaintiffs have not and cannot show that they will 

suffer irreparable harm in the absence of an injunction, as they must. Swain, 2020 U.S. 

App. LEXIS 14301, *14. In fact, Plaintiffs have never claimed there is a risk that the Sheriff 

will discontinue any of the practices in place at the Jail, nor have they provided evidence 

of that. They only seem to claim, as the emergency judge did in this case, that more can 

be done. However, that is not what the constitution requires, and an injunction may not 

be used for that purpose. The Sheriff has and will continue to administer the policies in 

place, particularly given that so much of it was in process long before Plaintiffs filed this 

lawsuit. Judge Kennelly recognized as much, and commended the Sheriff for his 

significant efforts. But the Jail simply cannot operate under threat of contempt and 

disruption when so many resources have been invested to protect detainees—as much as 

is structurally and operationally possible, and well beyond what is objectively 

reasonable. 

 

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CONCLUSION

Sheriff Dart respectfully submits this Response to Plaintiffs May 6, 2020 Filing for 

the Court’s consideration pursuant to its Order. 

By: /s/ Gretchen Harris Sperry 

One of the attorneys for Defendant 

Thomas J. Dart, Sheriff of Cook 

County 

Robert T. Shannon 

James M. Lydon 

Gretchen Harris Sperry 

Adam R. Vaught 

Lari Dierks 

HINSHAW & CULBERTSON LLP 

151 N. Franklin Street, Suite 2500 

Chicago, Illinois 60601 

Tel. 312-704-3000 

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CERTIFICATE OF SERVICE 

 The undersigned certifies that on May 11, 2020, I electronically filed the forgoing 

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MAY 6, 20202 FILING AND 

MOTION TO STRIKE PLAINTIFFS’ REQUEST FOR EXPEDITED DISCOVERY 

with the Clerk of the U.S. District Court, using the Court’s CM/ECF system, which will 

accomplish service electronically on all counsel of record.

 /s/ Gretchen Harris Sperry 

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