IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

JAMES MONEY, et al.,

 Plaintiffs,

 v.

J.B. PRITZKER, et al., 

 Defendants. 

No. 20-C-2093

(Also filed in case no. 20-C-1792)

Honorable Steven C. Seeger

Honorable Robert M. Dow, 

Emergency Judge

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR A 

TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION 

 

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

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

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

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

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

Illinois citizens, including those incarcerated in state prisons.1

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

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

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

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

 

1 A court may take judicial notice of “a fact that is not subject to reasonable dispute because it: 

(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and 

readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 

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

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

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

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taking place throughout the country, and as the Court expressly requested (see Dkt. 

14, directing defendants “to give special attention to explaining exactly what 

measures, if any, are currently being taken in Illinois ‘to protect people in prisons 

from the impending spread of COVID-19 by releasing people in an effort to reduce 

populations’”) the Governor and the Acting Director (the “Director”) detail below the 

actions they have taken and continue to take to ensure the safety of those 

incarcerated in the Department of Corrections.

The Governor issued a disaster proclamation on March 9, 2020, four days 

before the federal government announced a national emergency.2 The Department of 

Corrections followed immediately by enacting strict measures, consistent with CDC 

guidelines,3 to protect those who are housed and work in Illinois prisons. These 

actions include adoption of a pandemic response plan consistent with CDC guidance

(including a separate plan specific to Stateville), enhanced screening and testing for 

COVID-19, increased hygiene and sanitation, new limits (and now a prohibition) on 

outside visitors, and increased separation of prisoners through an administrative 

quarantine.

4 And well before plaintiffs filed this action, defendants were already 

 

2 Dkt. 1 ¶ 20, citing Gubernatorial Disaster Declaration. 

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

https://www.cdc.gov/coronavirus/2019-ncov/communication/guidancelist.html?Sort=Date%3A%3Adesc.

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

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

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html; see also COVID-19 Response, Illinois Department of Corrections, 

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

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systematically reviewing prisoners, including the groups identified in the complaint, 

to determine who could be released safely under Illinois law.

Although the Court need not look beyond plaintiffs’ pleading to reject their 

request for emergency relief, the Court can take judicial notice of the facts showing 

that over the past several weeks, defendants’ unprecedented and extraordinary 

measures to mitigate the risk of COVID-19 in Illinois prisons include the following: 

 As plaintiffs admit (Dkt. 1 ¶ 73; Dkt. 9 at 27), the Governor has suspended 

admissions of new prisoners from all Illinois county jails, with limited 

exceptions at the sole discretion of the Director. Executive Order 2020-13;

5

see also Executive Order 2020-18 (extending Executive Order 2020-13 

through April 30, 2020).

6

 Plaintiffs also admit the Governor has activated the Illinois National Guard 

to provide additional medical support at Stateville. Dkt. 1 ¶¶ 91; Dkt. 9 at 

48.

 The Governor is continuing to review and grant commutation petitions.7

 The Department created a population management task force, which 

includes members from the Prison Review Board, solely for the purpose of 

prioritizing the review of individuals for possible release through 

statutorily permissible means. 

 As of April 6, 2020, the Department has released approximately 450

prisoners through various forms of sentence credit, restoration of credit, 

 

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

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

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

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

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

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

possession of >5,000 grams of marijuana. https://www.dailyherald.com/news/20200331/cancerpatient-serving-4-years-for-thc-chocolates-out-of-prison-thanks-to-governor.

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and electronic detention.

8 The Department has provided an additional 65 

furloughs since the creation of the population management task force.

 Between March 2 and April 6, 2020, the Department reduced its population 

by more than 1,000 prisoners.

9

 The Department is continuing to award up to 180 days of Earned 

Discretionary Sentencing Credit (EDSC) for eligible offenders pursuant to 

730 ILCS 5/3-6-3(a)(3). The sentencing credit is within the sole discretion 

of the Director, but must be based on the results of a risk or needs 

assessment, circumstances of the crime, any history of conviction for a 

forcible felony, the offender’s behavior and disciplinary history, and the 

inmate’s commitment to rehabilitation, including participation in 

programming. Id. The Director is prohibited from awarding discretionary 

sentencing credit to any inmate unless the inmate has served a minimum 

of 60 days. Id.

 On April 6, 2020 (today), the Department filed an emergency rule change 

to amend the Administrative Code, 20 Ill. Admin. Code § 107.20, to relax 

the award of Earned Disciplinary Sentence Credit (EDSC) for those with 

100-level disciplinary tickets.

 The Department is continuing to identify offenders within nine months of 

their release date and conducted individualized reviews to determine 

whether they are eligible for early release. The review requires staff to 

examine an offender’s file for disciplinary history, commitment to 

rehabilitation, and criminal history. Offenders with forcible felonies, violent 

criminal histories, significant disciplinary issues, and outstanding 

warrants are not approved for the sentencing credit. The Department 

continues to generate a list of offenders every week and continues to 

conduct daily reviews of these offenders’ files. 

 The Department is continuing to review revocation of good conduct credit 

and has restored sentence credit where appropriate. 

 The Department is continuing to place offenders on electronic monitoring 

or home detention pursuant to 730 ILCS 5/5-8A-3. The Department has 

 

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

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

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

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

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

31, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-az-list/coronavirus/media-publications/daily-press-briefings.

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already placed 16 of 21 pregnant and postpartum offenders on home 

detention, and is now concentrating its efforts on those who are 55 years or 

older, have served at least 25% of the sentence and are within 12 months of 

release.

10 Although this category is permitted under 730 ILCS 5/5-8A-3(d), 

the Department must conduct individual assessments to ensure placement 

outside of a secure facility is appropriate.

11

 To allow for faster releases of prisoners, the Governor has suspended the 

required 14-day notification to State’s Attorneys for inmates released early 

as a result of earned sentence credit for good conduct. Executive Order 

2020-11;

12 see also Executive Order 2020-18 (extending Executive Order 

2020-11 through April 30, 2020).

13

 To provide greater flexibility for the use of medical furloughs, on April 6, 

2020, the Governor filed an additional Executive Order (EO 2020-21) to 

suspend the 14-day limit for medical furloughs and allow furloughs for 

medical purposes at the Director’s discretion and consistent with the

guidance of the Department’s medical director.

 The Prisoner Review Board continues to conduct daily hearings by 

telephone and video conference to set the conditions of mandatory 

supervised release for all individuals pending release.

 The PRB has notified those affected by the cancellation of the April 2020 

clemency docket and new dates are being secured. The PRB is also notifying 

affected parties that they can request to convert to a non-public hearing, 

which could be heard based upon the paper submissions, if all affected 

parties agree. In addition, the PRB continues to conduct informational 

interviews of incarcerated petitioners by videoconference as usual, and the 

July docket is still set to proceed as planned at this time.

 The PRB continues to conduct release revocation hearings. As always, each 

case is reviewed on an individual basis, with consideration of the facts and 

circumstances of each alleged violation or set of violations, including the 

protection of victims, the safety of those in the State’s custody, and the 

 

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

http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-zlist/coronavirus/media-publications/daily-press-briefings.

11 Id.

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

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

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

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

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overall public health concerns currently facing the State. The PRB is also 

taking into account the nature of the current extraordinary circumstances 

in all cases as a result of COVID-19, while recognizing that each decision 

must be made with the goals of protecting public safety and safely and 

restoring releasees to productive lives.

 The Governor’s Office is working with outside groups such as the SAFER 

Foundation and TASC to identify and secure safe host sites and provide 

wrap-around services to support potential releases.

 Lt. Governor Julia Stratton, along with the SAFER Foundation, has 

developed the Prison Emergency Early Release Response (PEERR) team. 

The PEERR team is a coordinated effort to facilitate the successful reentry 

of people leaving our state prisons and returning to Cook County. The 

PEERR team is currently developing a referral network of human services, 

healthcare, housing, and reentry providers that are open for business, 

whether in person or remotely, and have capacity to deliver services to 

people being released from IDOC custody. These services may include food, 

clothing, financial assistance, telehealth substance use and mental health 

services, physical healthcare, medication continuity, employment services, 

and housing.

 The Governor and the Director continue to monitor these efforts, and the 

Department continues to make necessary changes as the situation evolves.

These are the actions of officials who are responding quickly and aggressively 

to combat COVID-19—actions that are the opposite of deliberate indifference.

Plaintiffs nevertheless assert the bald conclusion that the Governor and Director 

have not acted with sufficient “urgency or decisiveness” and have “failed to take 

reasonable measures” to reduce the prison population “substantially” to their 

satisfaction. Id. ¶¶ 74, 111. These allegations do not present a plausible claim for 

deliberate indifference, let alone a claim with any likelihood of success. 

Plaintiffs’ motion should be denied, not only because they cannot show a 

likelihood of success on the merits in light of their inability to surmount the many

procedural and substantive legal hurdles discussed below, but also because plaintiffs’ 

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alleged “possibility” of harm, see Dkt. 9 at 64, does not outweigh the definite harm to 

the State and the public if the Court were to order the immediate release of the 

thousands of prisoners in plaintiffs’ proposed subclasses 1 and 2. Plaintiffs’ request 

that they and the Court substitute their own judgment for the Department’s in 

determining who may be safely released from prison and on what conditions, is 

neither responsible nor in keeping with the public interest. This is particularly so 

here, where the Department is already evaluating prisoners for whether they can be 

released without undue risk to public safety and whether each prisoner would have 

suitable housing if released. 

Critical decisions about the release of prisoners are committed to the State and 

its officials; they are in the best position to weigh how to manage the prison 

population and balance the safety of prisoners, prison staff, and the public. For that 

reason, federal law restricts the authority of federal judges to order prisoner releases. 

The Prison Litigation Reform Act does not allow it except when ordered by a 

designated three-judge panel, and even then only after a court has already entered 

less intrusive relief addressing the same problem. These PLRA requirements defeat 

plaintiffs’ case.

Supreme Court precedent also bars prisoners from using a § 1983 action to 

seek a “quantum change” in their conditions of confinement. By seeking immediate 

release from prison, plaintiffs are seeking the kind of quantum change that is not 

allowed.

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And while prisoners may sue to protect themselves from cruel and unusual 

punishment, a right protected by the Eighth Amendment, they must allege and 

ultimately prove that prison officials are “deliberately indifferent” to a recognized risk 

that those prisoners face substantial harm. Plaintiffs’ pleading does not plausibly 

show that the Governor or the Director have been deliberately indifferent to the risks 

posed by COVID-19. Plaintiffs do not allege the kind of subjective indifference—

amounting to criminal recklessness—to sustain a plausible claim under the Eighth 

Amendment. That claim is particularly specious here, where it is clear that 

defendants not only recognize the risk of harm to prisoners and prison staff from 

COVID-19, but have also taken and continue to take immediate and significant 

actions to address that risk. Plaintiffs likewise do not present a plausible claim giving 

them a likelihood of success under the ADA. They do not plausibly allege to be 

“qualified” under the ADA, nor do they plausibly allege any discrimination against 

them by reason of any claimed disability

There is no question that COVID-19 poses unprecedented risks to the health 

of all citizens, including prisoners. And while courts may issue temporary emergency 

relief in appropriate cases, the Court cannot do so here, where the underlying legal 

claims lack a likelihood of success and where the requested relief—here an 

unprecedented mandatory immediate prison release of as many as 16,000 convicted 

felons—is manifestly against the State’s and the public’s interests.

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BACKGROUND 

Plaintiffs are ten individuals convicted of a range of felonies, including 

aggravated kidnapping and murder. None claim to have COVID-19. Two of them 

(Gerald Reed and Patrice Daniels) are housed at facilities (the Stateville Northern 

Reception Center [NRC] and the Joliet Treatment Center, respectively), where 

someone on staff (no prisoners) allegedly tested positive for COVID-19. Dkt. 1 ¶¶ 71, 

95, 101. Only one of those plaintiffs, Gerald Reed, is a member of the proffered 

subclasses 1 and 2 seeking a release through the requested “temporary restraining 

order.”

14 Dkt. 9 at 1–2. The complaint defines subclasses 1 and 2 to encompass those 

who, based on their age or medical condition, are “eligible for medical furlough 

pursuant to 730 ILCS 5/3-11-1,” Dkt. 1 ¶ 103(a) & (b). By plaintiffs’ math, these two 

groups constitute approximately 16,000 prisoners. Dkt. 1 ¶ 105. 

Plaintiffs base their requested relief, which they characterize at times as either 

a temporary restraining order or a preliminary injunction, e.g., Dkt. 9 at 1–2, 38 (it

is more akin to a preliminary injunction), on two legal claims: Count I alleging

deliberate indifference in violation of the Eighth Amendment, and Count III alleging

a violation of the ADA. Id. at 40. As discussed below, plaintiffs are not likely to 

succeed on either claim.15

 

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

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

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

condition.

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

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

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

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

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ARGUMENT 

The standards for deciding whether a temporary restraining order is 

appropriate are “analogous to the standards applicable when determining whether 

preliminary injunctive relief is appropriate.” YourNetDating, Inc. v. Mitchell, 88 F.

Supp. 2d 870, 871 (N.D. Ill. 2000). Injunctive relief is “an extraordinary and drastic 

remedy, one that should not be granted unless the movant, by a clear showing, carries 

the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis 

in original); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 

(7th Cir. 1998) (same); see also Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 389 

(7th Cir. 1984). 

To obtain a temporary restraining order or preliminary injunction, plaintiffs

must make a clear showing that: (1) they are likely to succeed on the merits; (2) they 

are likely to suffer irreparable harm in the absence of preliminary relief; (3) the 

balance of equities tips in their favor; and (4) that the injunction is in the public 

interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); Judge v. Quinn, 

612 F.3d 537, 546 (7th Cir. 2010). Additionally, the court “must balance the competing 

 

courts have consistently held that a statute providing for release from prison to a less restrictive 

form of custody (such as parole or, here, home detention) does not create a liberty or property 

interest unless the statute contains “‘explicitly mandatory language,’ i.e., specific directives to the 

decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must 

follow.” Ky. Dept. of Corr. v. Thompson, 490 U.S. 454, 463 (1989) (emphasis added); see also 

Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006) (“It takes mandatory language (and thus an 

entitlement contingent on facts that could be established at a hearing) to create a liberty or property 

interest in an opportunity to be released on parole.”). Here, the Illinois home detention and medical 

furlough statutes are discretionary. See 730 ILCS 5/5-8A-3 and 730 ILCS 5/3-11-1. Therefore, 

petitioners have no liberty or property interest in home detention and Count II is meritless. See, e.g.,

Thompson, 490 U.S. at 463; Grennier, 453 F.3d at 444.

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claims of injury and must consider the effect on each party of granting or withholding 

the requested relief,” paying “particular regard for the public consequences in 

employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.

Plaintiffs’ burden in this case is even greater than usual because, rather than 

seeking to preserve the status quo, they seek mandatory interim relief directing the 

certification of their proposed subclasses 1 and 2, and directing defendants to release

approximately 16,000 offenders. See Dkt. 1 ¶ 105. Mandatory injunctions are “rarely 

issued,” interlocutory mandatory injunctions are “even more rarely issued,” and 

neither should be issued “except upon the clearest equitable grounds.” W.A. Mack, 

Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958); see also Graham v. Med. 

Mut. of Ohio, 130 F.2d 293, 295 (7th Cir. 1997) (“mandatory preliminary writs are 

ordinarily cautiously viewed and sparingly issued”); Chicago United Indus. v. City of 

Chicago, 445 F.3d 940, 945–46 (7th Cir. 2006).

Besides seeking mandatory relief, plaintiffs in subclasses 1 and 2 also seek to 

obtain a temporary restraining order or preliminary injunction that would give them 

substantially all the relief they seek through this lawsuit. That makes plaintiffs’ 

burden even higher. See, e.g., Boucher, 134 F.3d at 827 n.6 (“A preliminary injunction 

that would give the movant substantially all the relief he seeks is disfavored, and 

courts have imposed a higher burden on a movant in such cases.”); W.A. Mack, 260 

F.2d at 890 (“A preliminary injunction does not issue which gives to a plaintiff the 

actual advantage which would be obtained in a final decree.”).

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Plaintiffs’ motion should be denied not only because they cannot show a 

likelihood of success on the merits in light of their inability to surmount the multiple 

procedural and substantive legal hurdles discussed below, but also because they have 

not demonstrated that the possible harm they face from COVID-19 outweighs the 

State’s and the public’s interests. The Court also should reject plaintiffs’ request to 

provisionally certify subclasses 1 and 2. 

I. Plaintiffs Are Unlikely to Succeed on the Merits. 

“A plaintiff seeking a preliminary injunction must establish that he is likely 

to succeed on the merits.” Winter, 555 U.S at 20. To meet their initial burden, 

plaintiffs must show that they have a “better than negligible” chance of success on 

the merits. Roland Mach. Co., 749 F.2d at 387. Where it is more likely than not that 

a defendant will prevail, injunctive relief is improper, particularly where the balance 

of harms tips decidedly in favor of the defendant. See Boucher, 134 F.3d at 826–27, 

829 (vacating preliminary injunction as to expelled high school student). Even if a 

plaintiff makes the required showing, the court must determine how likely it is that 

the plaintiff actually will succeed: “The more likely the plaintiff is to win, the less 

heavily need the balance of harms weigh in his favor; the less likely he is to win, the 

more need it weigh in his favor.” Roland Mach. Co., 749 F.2d at 387. Moreover, when

there are “two equally credible versions of the facts the court should be highly 

cautious in granting an injunction without the benefit of a full trial.” Lawson Prods., 

Inc. v. Avnet, Inc., 782 F.2d 1429, 1440 (7th Cir. 1986) (citation omitted).

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The Court can and should deny plaintiffs’ motion based on several procedural 

bars that defeat plaintiffs’ claims, even before addressing their failure to plead 

plausible Eighth Amendment and ADA claims.

A. The PLRA, Heck, Rizzo Abstention, and Plaintiffs’ Failure to Exhaust 

their Administrative Remedies Give Plaintiffs No Likelihood of Success. 

1. The Prison Litigation Reform Act bars this Court from ordering 

plaintiffs’ release from prison under the guise of medical furloughs. 

 

At the outset, plaintiffs have no likelihood of success on the merits because the 

Prison Litigation Reform Act does not allow this Court to grant the releases and

transfers to their homes that plaintiffs seek. 

The PLRA is principally codified at 42 U.S.C. § 1997e, but it also encompasses 

the provisions of 18 U.S.C. § 3626 concerning appropriate prison condition remedies. 

See Davis v. Streekstra, 227 F.3d 759, 761 (7th Cir. 2000); Berwanger v. Cottey, 178 

F.3d 834, 836 (7th Cir 1999). Although § 3626 of the PLRA allows federal courts in 

limited instances to issue a “prisoner release order,” § 3626(a)(3)(A) unequivocally 

provides that “no court shall enter a prisoner release order unless—(i) a court has 

previously entered an order for less intrusive relief that has failed to remedy the 

deprivation of the Federal right sought to be remedied through the prisoner release 

order; and (ii) the defendant has had a reasonable amount of time to comply with the 

previous court orders.” 18 U.S.C. § 3626(a)(3)(A); see also U.S. v. Cook County, 

Illinois, 761 F. Supp. 2d 794, 796 (N.D. Ill. 2011). Section 3626 also mandates that a 

prisoner release order may be entered “only by a three-judge court,” and “only if the 

court finds by clear and convincing evidence that—(i) crowding is the primary cause 

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of the violation of a Federal right; and (ii) no other relief will remedy the violation of 

the Federal right.” 18 U.S.C. §§ 3626(a)(3)(B), (E); see also Cook County, 761 F. Supp. 

2d at 796 (three-judge panel reviewing request for prisoner release order). 

This Court cannot issue plaintiffs’ requested relief because only a three-judge 

panel can issue the relief they seek. And even a three-judge panel could not grant 

plaintiffs’ requested relief because no court has previously entered a less intrusive 

order—or any order at all—that attempted to remedy the threat only recently posed 

by COVID-19. Indeed, just this last Saturday the three-judge panel assigned to 

oversee a prior prisoner release order in California refused to grant the class’s request 

to order an additional release of prisoners because of the COVID-19 threat. Plata v. 

Newsom, No. 01 C 1351, Dkt. 361, at 9. The class cited that prior order in an effort to 

satisfy § 3626, but the court concluded that the prior order dealt with “longstanding 

system constitutional deficiencies in California’s prison health care delivery system” 

and that any additional prisoner release would have to be specifically “based on 

shortcomings” in California’s response to COVID-19. Id.

These PLRA requirements apply to both legal claims (under the Eighth 

Amendment and ADA) that plaintiffs cite to support their requested emergency relief. 

Section 3626(g)(2) expressly applies to any “civil action with respect to prison 

conditions,” defined as “any civil proceeding arising under Federal law with respect 

to the conditions of confinement or the effects of actions by government officials on 

the lives of persons confined in prison, but does not include habeas corpus proceedings 

challenging the fact or duration of confinement in prison[.]” 18 U.S.C. § 3626(g)(2). 

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Thus, plaintiffs must satisfy § 3626 not only for their § 1983 claim, but also for their 

ADA claim. See Gillette v Prosper, 858 F.3d 833, 837 (3rd Cir. 2017) (reviewing 

district court’s denial of request for three-judge panel for both § 1983 and ADA 

claims).

Plaintiffs original brief cites four federal court orders from late last month in 

an attempt to show that it is now common for courts to order the release of detainees 

and prisoners to minimize the risks posed by COVID-19. Dkt. 9 at 44. However, all 

four cases—Thaker v. Doll, No. 20-CV-0480, Dkt. 47 (M.D. Pa. Mar. 31, 2020); 

Coronel v. Decker, No. 20 C 2472, Dkt. 26 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, 

No. 20-CV-2518, Dkt. 11 (S.D.N.Y. Mar. 26, 2020); Flores v. Barr, No. 85-CV-4544, 

Dkt. 740 (C.D. Cal. Mar. 28, 2020)—concern immigration detainees in federal 

detention centers, not “prisoners” as plaintiffs mischaracterize them in their brief.

Dkt. 9 at 45. The PLRA’s requirements do not apply to immigration detainees because 

they do not fall under the PLRA’s definition of a prisoner. See Cohen v. Clemens, 321 

Fed. Appx. 739, 743 (10th Cir. 2009); Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 

2002); LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998); Ojo v. INS, 106 F.3d 680, 

683 (5th Cir. 1997); see also 18 U.S.C. § 3626(g)(3) (defining “prisoner” as “any person 

subject to incarceration, detention, or admission to any facility who is accused of, 

convicted of, sentenced for, or adjudicated delinquent for, violations of criminal 

law....”). Thus, while the immigration detainees in Thaker, Coronel, Basank, and

Flores did not have to satisfy § 3626’s requirements, plaintiffs here do, and their 

inability to do so defeats their requested relief.

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The immigration detainee cases are also inapposite because those courts were 

analyzing a “much more protective” and objective Fourteenth Amendment clause 

standard that “differs significantly from the standard relevant to convicted prisoners” 

who are subject to punishment. See Unknown Parties v Nielsen, No. 15 C 250, 2020 

WL 813774, at *2–3 (D. Ariz. Feb. 19, 2020). As argued below, plaintiffs do not and 

cannot satisfy the subjective deliberative indifference test that applies to prison 

conditions cases.

Plaintiffs’ supplemental brief filed today makes two critical errors. First, they 

insist that they are not seeking the release of any prisoners from any prison, but 

rather just a request that certain subclass members be “identified and evaluated 

based on a balancing of public safety and public health needs, and transferred 

accordingly.” Dkt. 24 at 5. Plaintiffs’ motion flatly contradicts this backpedaling.

Their motion seeks an order for “Defendants to transfer [approximately 16,000 class 

members] to their homes to self-isolate via a temporary medical furlough.” Dkt. 9 at 

55 (emphasis added). The entire thrust of plaintiffs’ complaint and motion is to ask 

the Court to order the Department to release thousands of prisoners to their homes 

to allow them to try to avoid COVID-19 there. 

Plaintiffs claim that what they are seeking does not qualify as a “prisoner 

release order” as defined in the PLRA, 18 U.S.C. § 3626(g)(4), because anyone 

released pursuant to the order would remain under some state control. Dkt. 24 at 5–

6. Both the text of § 3626(g)(4) and the Plata/Coleman cases that plaintiffs rely on 

refute this argument. A noted above, a prisoner release order is any order that 

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“directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. §

3626(g)(4). Nothing in § 3626(g)(4) suggests the definition does not apply when the 

order has the effect of releasing prisoners to some other less-restrictive environment.

Moreover, the Plata/Coleman three-judge panel expressly ruled that even orders of 

release that require supervision fall within the PLRA. Dkt. 361, at 5 (denying 

prisoner release order even though the class requested parole and community 

supervision).

Plaintiffs also err by arguing that § 3626 does not apply because prisoner

release orders by their nature redress prison overcrowding, which they claim is not 

their concern here. Dkt. 24 at 7. This is nonsense. The threat of COVID-19 exists in 

virtually every corner of this planet. But plaintiffs’ case is predicted on their 

contention that the Governor “has not taken any steps to substantially reduce the 

prison population” through expanded releases, furloughs, and transfers, Dkt.1 ¶ 74, 

resulting in crowded prisons that expose prisoners to greater risks of contracting

COVID-19. 

Plaintiffs cite several cases that are inapposite because, unlike this case, they 

were not based on alleged harms associated with crowded prisons. Four of the cases 

simply involved individual medical or mental health claims and had nothing to do 

with crowding. See Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195, 209–10 (D. Mass. 

2019); United States v. Wallen, 177 F. Supp. 2d 455, 458 (D. Md. 2001) (also 

distinguishable because plaintiff was pretrial detainee); Murphy v. Lane, 833 F.2d 

106 (7th Cir. 1987); Johnson v. Harris, 479 F. Supp. 333, 337-38 (S.D.N.Y. 1979). Doe 

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v. Younger, Dkt. 24 at Ex. C, concerned a broad class of juveniles, but that opinion 

focused on the inappropriateness of keeping juveniles in adult prisons for too long 

and also had nothing to do with crowding. The same is true for the specific ruling in 

the Plata lawsuit relating to “valley fever” at two California prisons. There is no 

indication that crowding was the reason why certain inmates needed to be 

transferred elsewhere in the prison system. See Plata v. Brown, 01 C 1351, 2013 WL 

3200587, at *9 (N.D. Cal. June 24, 2013) (only reference to crowding was citation to 

state’s own conclusion that overall system crowding would make transfers—

necessitated by other issues—difficult to achieve).

The PLRA bars plaintiffs’ requested relief precisely because the Court’s order 

would qualify as a prisoner release order that is geared to redressing the alleged close 

connection between prison crowding and the potential spread of COVID-19.

2. Plaintiffs’ requested relief is Heck-barred. 

 

Plaintiffs’ Eighth Amendment and ADA claims are barred by Heck v. 

Humphrey, 512 U.S. 477 (1994), because it is apparent from their requested relief 

that plaintiffs are challenging the fact of their current confinement in Illinois prisons, 

rather than any conditions at those facilities. In Heck, the Supreme Court drew a line 

between claims that must proceed under the federal habeas statute and claims that 

are cognizable under § 1983. Specifically, the Court held that a § 1983 claim that 

necessarily requires a prisoner to establish the invalidity of his conviction or sentence 

does not accrue until the prisoner has obtained the favorable termination of that 

conviction or sentence through federal habeas or similar state remedies. Id. at 486–

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87. Later decisions refined that doctrine and clarified that any § 1983 action that, if 

successful, would necessarily imply the invalidity of the fact or duration of a 

prisoner’s confinement is barred. Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005). 

Heck thus bars actions challenging the fact or duration of a prisoner’s confinement, 

but it does not prohibit § 1983 claims challenging the conditions of that confinement. 

Savory v. Cannon, 947 F.3d 409, 422–34 (7th Cir. 2020) (en banc); see also 

Muhammad v. Close, 540 U.S. 749, 754–55 (2004). The relevant question for purposes 

of deciding if a claim must be brought under habeas or § 1983 is whether the prisoner 

is challenging the fact or duration of his confinement, or merely its conditions.

In Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991), the Seventh Circuit 

noted that it can sometimes be difficult to determine whether a prisoner is 

challenging the fact of confinement or its conditions, especially when “the prisoner is 

seeking not earlier freedom, but transfer from a more to a less restrictive form of 

custody.” In that circumstance, courts should ask if the prisoner is seeking “a 

quantum change in the level of custody,” in which case habeas is the proper remedy, 

or if the prisoner is just seeking transfer to a different program, location, or 

environment, in which case § 1983 is appropriate. Id. A prisoner seeks a quantum 

change in custody when, for example, he requests “freedom subject to the limited 

reporting and financial constraints of bond or parole or probation, or the run of the 

prison in contrast to . . . disciplinary segregation.” Id.

Applying Graham, the First Circuit has held that an action by prisoners 

challenging their re-incarceration after having been on electronic supervision fell on 

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the habeas side of the line because the difference between incarceration and 

electronic supervision “can fairly be described as a quantum change in the level of 

custody.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010). The court 

noted that, unlike incarcerated prisoners, those on electronic supervision could “live 

with family members, work daily jobs, attend church, and reside in their own homes.” 

Id. at 873–74. By contrast, claims challenging a transfer to a different location within 

the prison system do not seek a quantum change in the level of custody. See Johnson 

v. Litscher, 260 F.3d 826, 831 (7th Cir. 2001); Pischke v. Litscher, 178 F.3d 497, 499 

(7th Cir. 1999); Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995).

In this case, plaintiffs are seeking three types of relief: immediate medical 

furlough for subclasses 1 and 2 (the subject of the motion); immediate transfer to 

home detention for subclasses 3–5; and an immediate award of 180 days of sentencing 

credit for subclass 6. Dkt. 1 at 46–47. Each of these requests for relief seeks a 

quantum change in the level of the relevant class members’ custody.

Although plaintiffs do not seek preliminary relief for subclass 6, their claim 

that the members of subclass 6 should receive 180 days of sentencing credit is barred 

under a basic Heck analysis because awarding that credit would shorten the length 

of those prisoners’ sentences. See Edwards v. Balisok, 520 U.S. 641, 646–47 (1997) 

(claim seeking reinstatement of good-time credits is barred). That claim directly 

challenges the duration of the prisoners’ confinement.

Plaintiffs’ claims for transfer to home detention (subclasses 3–5, also not part 

of the present motion) are barred because the differences between incarceration and 

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home detention “can fairly be described as a quantum change in the level of custody.”

Gonzalez-Fuentes, 607 F.3d at 873. Unlike an incarcerated prisoner, those on home 

detention can live with family members in their own homes and may leave their 

homes to, among other things, go to work or school and attend religious services. 730 

ILCS 5/5-8A-4(A). Relief for those in subclasses 3–5 is barred because plaintiffs in 

those groups are seeking freedom subject to limited reporting and constraints. See 

Graham, 922 F.2d at 381.

The claims for medical furlough for those in subclasses 1 and 2 (the subject of 

the requested emergency relief) are barred because those plaintiffs seek freedom from 

a prison facility to live in various locations (one in Florida) with limited oversight and 

reporting. See Dkt. 1 at 36–39. Indeed, medical furlough may be an even greater 

change in the level of custody than home detention because it does not impose the 

same limits on the ability to leave the home. Compare 730 ILCS 5/3-11-1 (furloughs) 

with 730 ILCS 5/5-8A-4 (home detention). Consequently, all three types of relief that 

plaintiffs request cannot be obtained under § 1983 without violating Heck.

Although plaintiffs claim their rights have been violated because they have 

been deprived of “reasonably safe living conditions,” Dkt. 1 at 43–46, they fail to seek 

any relief that would improve those allegedly unsafe conditions. Instead, they seek 

immediate release from prison, whether through medical furlough, home detention, 

or a shortening of their sentences. Id. at 46–47. And while a claim that, if successful, 

might lead to a speedier release does not necessarily render it Heck-barred, see 

Wilkinson, 544 U.S. at 82; Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir. 2004), 

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plaintiffs here are directly seeking immediate release from prison. Plaintiffs are 

therefore challenging the fact of their confinement, rather than any conditions that 

have been imposed, and such claims are not cognizable under § 1983.

In addition, the potential availability of a prisoner release order, entered by a 

three-judge court after other less intrusive relief has proved unsuccessful, under the 

PLRA, 18 U.S.C. § 3626(a)(3), does not alter the Heck analysis. In Brown v. Plata, 

563 U.S. 493, 517–522 (2011), the Supreme Court upheld prisoner release orders 

based on the finding that overcrowding had caused a shortfall in prison resources 

that in turn led to unsafe living conditions and ineffective medical care. The release 

order thus served the purpose of improving prison conditions by reducing the demand 

for existing services and thereby increasing the proportional availability of those 

resources. Here, by contrast, plaintiffs are not seeking the release of other prisoners 

to improve the conditions that they encounter in prison but are instead seeking their 

own release. Consequently, they are challenging the fact of their confinement and 

their section 1983 action is barred under Heck.

3. The Court should abstain from interfering in the administration of 

Illinois prisons. 

 

Given the extraordinary nature of the injunctive relief that plaintiffs seek, the 

Court should abstain pursuant to Rizzo v. Goode, 423 U.S. 362 (1976), where the 

Supreme Court instructed that to obtain injunctive relief on a matter traditionally 

reserved to the discretion of a state or local government agency, a plaintiff must 

overcome the steep hurdle set by “the well-established rule that the Government has 

traditionally been granted the widest latitude in the ‘dispatch of its own internal 

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affairs.’” Id. at 378–79 (quotations omitted). In such cases, federal courts are to issue 

injunctions “sparingly, and only in a clear and plain case.” Id. at 378. This strong 

preference against intrusive injunctive relief is primarily founded on “delicate issues 

of federal state relationships” (Id. at 380 (quotation omitted)), which are premised on 

“the principles of equity, comity, and federalism.” Id. at 379 (quotation omitted). 

The Seventh Circuit recently affirmed the continuing relevance of Rizzo as an 

extension of the Younger abstention doctrine, which “limit[s] federal court review of 

local executive actions.” Courthouse News Serv. v. Brown, 908 F.3d 1063, 1071 (7th 

Cir. 2018). The plaintiffs in Courthouse News sought a preliminary injunction 

compelling the Cook County Clerk to immediately make all complaints filed available 

to the press, rather than waiting for a period until the complaints were processed. 

The Seventh Circuit rejected the injunction, observing that “federal courts must be 

constantly mindful of the ‘special delicacy of the adjustment to be preserved between 

federal equitable power and State administration of its own law.’” Id. at 1073 (quoting 

Rizzo, 423 U.S. at 378).

The considerations of federalism and comity underlying Rizzo weigh especially 

heavily when considering the administration of a state prison system, where the 

Supreme Court has noted that “[i]t is difficult to imagine an activity in which a State 

has a stronger interest, or one that is more intricately bound up with state laws, 

regulations, and procedures, than the administration of its prisons. . . . Since these 

internal problems of state prisons involve issues so peculiarly within state authority 

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and expertise, the States have an important interest in not being bypassed in the 

correction of those problems.” Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973). 

Courts in this circuit have relied on Rizzo when declining to interfere in 

decisions affecting the administration of state prisons. As Judge Durkin recently 

explained, “the courts do not generally second-guess inmate housing decisions” 

because it is “not ‘the task of federal courts to oversee discretionary housing decisions 

made by state prison officials.’” Boykin v. Fischer, No. 16-CV-50160, 2019 WL 

6117580, at *14 (N.D. Ill. Nov. 18, 2019) (quoting Del Rio v. Schwarzenegger, No. 09-

CV-0214, 2010 WL 347888, at *5 (C.D. Cal. Jan. 20, 2010)). “Where a plaintiff 

requests an award of remedial relief that would require a federal court to interfere 

with the administration of a state prison, ‘appropriate consideration must be given to 

principles of federalism in determining the availability and scope of [such] relief.’” Id. 

(quoting Rizzo, 423 U.S. at 379); see also Cornille v. Lashbrook, No. 19-CV-002, 2019 

WL 366562, at *6 (S.D. Ill. Jan. 30, 2019) (denying TRO seeking a transfer to another 

prison); Conway v. Wagnor, No. 19-CV-036, 2019 WL 183903, at *1–2 (S.D. Ill. Jan. 

14, 2019) (denying TRO seeking immediate medical treatment with a specialist and 

a transfer); Boykin v. Dixon Mental Health Servs., No. 16-CV-50160, 2018 WL 

8806095, at *3 (N.D. Ill. Oct. 15, 2018) (“the courts are not engaged in the business of 

supervising inmate housing decisions”). 

The injunctive relief plaintiffs seek in this case is far more intrusive than in 

any of the cases cited above. Rather than seeking a transfer for a single prisoner, 

plaintiffs seek to compel the Department to release approximately 16,000 prisoners 

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immediately, with no consideration of the Department’s administrative, safety, and 

security concerns. The Court is not in a better position than the Department to 

determine who may safely be released on home detention or medical furlough and 

who may not. Consistent with the Supreme Court’s directive in Rizzo, this Court 

should exercise judicial restraint and deny plaintiffs’ motion.

4. Plaintiffs do not and cannot allege they have exhausted their 

administrative remedies. 

Plaintiffs’ motion also should be denied because plaintiffs do not and cannot 

allege they exhausted their administrative remedies. The PLRA requires an inmate 

to exhaust “such administrative remedies as are available” before bringing suit to 

challenge prison conditions. Ross v. Blake, 136 S. Ct. 1850, 1854–55 (2016) (citing 42 

U.S.C. § 1997e(a)). The unavailability of remedies is the only exception to the 

exhaustion requirement. Id. at 1856–57 (rejecting any additional exception under 

“special circumstances” and explaining that the mandatory exhaustion regime 

forecloses judicial discretion). The Court in Ross identified three circumstances where 

a grievance procedure could be deemed unavailable: (1) prison officials consistently 

refuse to provide any relief to inmates; (2) an ordinary prisoner is unable to figure 

out the procedure; and (3) prison officials use intimidation or misrepresentation to 

thwart any ability for inmates to use the procedure. Id. at 1859–60. Plaintiffs do not 

suggest any of those circumstances exist here.

IDOC regulations provide the grievance procedures committed persons must 

follow. See 20 Ill. Adm. Code § 504.800, et seq. A prisoner may submit an emergency 

grievance directly to the warden, and the warden may determine that the grievance 

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should be handled on an emergency basis. Id. §§ 504.840(a), (b). Plaintiffs do not 

allege that any of them filed a grievance over COVID-19 or that IDOC’s grievance 

procedure is unavailable to them. And although prisoners need not plead they have 

met the exhaustion requirement (an affirmative defense) to bring a claim, see Jones 

v. Bock, 549 U.S. 199, 216 (2007), the Court should not grant plaintiffs what amounts

to their ultimate relief through mandatory medical furloughs before defendants can 

move for a Pavey hearing. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) 

(exhaustion issue should be decided at early stage of lawsuit).

B. Plaintiffs Are Not Likely to Succeed on their Eighth Amendment and 

ADA Claims Because They Do Not Meet the Plausibility Standard. 

 

1. Plaintiffs do not allege the Governor or Director recklessly 

disregarded a recognized risk to an inmate’s health or safety. 

 

The Eighth Amendment prohibits cruel and unusual punishments. U.S. Const. 

amend. VIII. Among the punishments the amendment forbids is the “unnecessary 

and wanton” infliction of suffering caused by an official’s deliberate indifference to a 

prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). To 

establish deliberate indifference, prisoners must prove that the prison official both 

knew of and disregarded an excessive risk to their health or safety. Farmer v. 

Brennan, 511 U.S. 825, 837 (1994). Courts therefore perform a two-step analysis:

“first examining whether a plaintiff suffered from an objectively serious medical 

condition, and then determining whether the individual defendant was deliberately 

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indifferent to that condition.” Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016) 

(en banc). 

Although defendants do not dispute their awareness that COVID-19 poses 

serious risks to prisoners and prison staff, they absolutely dispute that plaintiffs have 

plausibly alleged that the Governor (even assuming he is a proper defendant) or the 

Department’s Director was deliberately indifferent to that risk generally, let alone 

indifferent to any specific risk to any particular plaintiff. Plaintiffs do not allege that 

any of them has COVID-19 or has been deprived of any necessary care based on any 

of their particular medical conditions. 

Deliberate indifference “describes a state of mind more blameworthy than 

negligence.” Farmer, 511 U.S. at 835; accord Whiting v. Wexford Health Sources, Inc., 

839 F.3d 658, 662 (7th Cir. 2016) (“evidence of medical negligence is not enough to 

prove deliberate indifference”). To establish a constitutional violation, the prisoner 

must show that the response was so deficient that it constituted criminal 

recklessness. Farmer, 511 U.S. at 839-40; see also Lee v. Young, 533 F.3d 505, 509 

(7th Cir. 2008) (providing that “negligence or even gross negligence is not enough; the 

conduct must be reckless in the criminal sense”). The deliberate indifference standard 

imposes a “high hurdle” and requires a showing “approaching a total unconcern for 

the prisoner’s welfare.” Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012) (internal 

quotations and citation omitted).

An official’s response to a risk of harm can defeat an allegation of deliberate 

indifference even if the risk is not ultimately averted. Farmer, 511 U.S. at 844. 

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Accordingly, a defendant is “not required to take perfect action or even reasonable 

action.” Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003). This standard 

ensures that “the mere failure . . . to choose the best course of action does not amount 

to a constitutional violation.” Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).

Ignoring these established holdings, plaintiffs predicate their case on a 

disagreement about what they believe to be the best course of action to protect them 

and other prisoners from possible exposure to COVID-19. Plaintiffs acknowledge the 

Department has released at least 300 prisoners, Dkt. 1 ¶ 83, but they complain the 

Governor and Director have not acted with more “urgency or decisiveness” to release 

“substantially” more. Id. ¶¶ 73–74. Plaintiffs plainly based their case on what they 

believe is reasonable, asserting that defendants have “failed to take reasonable 

measures” to secure more early releases through various means. Id. ¶ 111. By basing 

their claim on what they believe to be a reasonable course of conduct, plaintiffs 

improperly seek to equate their Eighth Amendment claim with malpractice, contrary 

to the Court’s directive in Estelle, 429 U.S. at 106 (“malpractice does not become a 

constitutional violation merely because the victim is a prisoner”). 

In short, plaintiffs’ focus on the reasonableness of defendants’ actions is legally 

insufficient to make a plausible showing that defendants were and continue to be 

subjectively and recklessly indifferent. Their allegations do not make the required 

“clear showing” that they are likely to succeed on their deliberate indifference claim. 

Although the Court can and should deny plaintiffs’ motion based solely on the 

defects in plaintiffs’ unverified pleading (based heavily on inadmissible hearsay 

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exhibits), the Court also can take judicial notice of the public actions taken by the 

Governor and the Department of Corrections to combat COVID-19 within the State 

of Illinois generally, and within the Department of Corrections specifically. Those 

actions, summarized above, refute any notion that defendants’ responses to COVID19 may be fairly or plausibly characterized as recklessly indifferent. Plaintiffs have 

no likelihood of success on their deliberate indifference claim. 

2. Plaintiffs are not “qualified individuals” under the ADA and do not 

plausibly allege they are being denied services because of their 

alleged disabilities. 

 

Title II of the ADA prohibits public entities from discriminating against 

qualified individuals with disabilities by depriving them of opportunity to participate 

in the services, programs, or activities of the public entity because of their 

disabilities. 42 U.S.C. § 12132. 

Title II of the ADA applies to prisons, see Pennsylvania Dept. of Corrections v. 

Yeskey, 524 U.S. 206 (1998), and prisoners may sue state officials in their official 

capacity for prospective injunctive relief under Title II. Brueggeman ex rel. 

Brueggeman v. Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003). But to assert a valid 

claim under Title II, plaintiffs must have a “qualifying disability” and must show a 

denial of benefits of services, programs, or activities through discrimination “by 

reason of” their disability. Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 937 

(N.D. Ind. 2009) (quoting Frame v. City of Arlington, 575 F.3d 432, 435 (5th Cir.

2009)); see also Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996). 

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The ten plaintiffs here cannot clearly establish that they meet the required 

“otherwise qualified” standard. “An otherwise qualified person is one who is able to 

meet all of a program's requirements in spite of his handicap.” Southeastern 

Community College v. Davis, 442 U.S. 397, 406 (1979) (emphasis added). Plaintiffs 

seek release under the Illinois medical furlough statute, 730 ILCS 5/3-11-1. This 

statute permits the release of offenders on a medical furlough for purposes of 

obtaining medical services that are not otherwise available. The Governor’s Executive 

Order issued on April 6, 2020 removes the “not otherwise available” requirement and 

allow the Director discretion to permit the release of offenders on a medical furlough 

more generally for purposes of obtaining medical, psychiatric or 

psychological services. But regardless, plaintiffs make no allegations suggesting that 

any one of them, let alone others in subclasses 1 and 2 (medically vulnerable and over 

age 55), qualify for a furlough under the statute even as modified by the Executive 

Order. To the contrary, plaintiffs admit they are seeking release not to obtain 

medical, psychiatric or psychological services, but rather so they can leave prison to 

live in another location in an effort to avoid contracting COVID-19. Dkt. 9 at 54; Dkt. 

1 ¶¶ 93–100. Accordingly, plaintiffs are not “qualified” under the ADA because they 

have not alleged anything suggesting that they are eligible for a furlough under 730 

ILCS 5/3-11-1.

Plaintiffs also do not plausibly allege any discrimination against them by 

reason of any claimed disability. A plaintiff “may establish discrimination by 

presenting evidence that the defendant intentionally acted on the basis of the 

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disability, the defendant refused to provide a reasonable modification, or the 

defendant’s denial of benefits disproportionately impacts disabled 

people.” Culvahouse, 679 F. Supp. 2d at 937 (relying upon Washington v. Ind. High 

Sch. Athletic Assn., Inc., 181 F.3d 840, 847 (7th Cir. 1999)). Plaintiffs bring their ADA 

claims under two different theories: reasonable modification or accommodation, and 

disparate impact. Both theories fail. 

The ADA requires state and local entities to make “reasonable modifications” 

to policies, rules, and practices so that people with disabilities can participate in 

public programs and services. 42 U.S.C. § 12131(2). Whether a modification is 

considered reasonable depends on the specific circumstances and modifications 

sought. To decide what constitutes a “reasonable modification” for a prisoner, courts 

weigh the needs of prisoners with disabilities against the structural, financial, and 

administrative concerns of the prison. In particular, courts consider (1) whether the 

modification will “fundamentally alter” a program or activity, (2) the cost of the 

modification, and (3) the burden the modification would have on administration of 

the prison. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), 35.164. Courts also may consider 

concerns relating to prison management, prisoner rehabilitation, and safety. See, e.g., 

Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (prison could present evidence 

that providing an interpreter for a deaf prisoner at disciplinary hearings created 

safety and security concerns); Love, 103 F.3d at 561 (prison could justify its refusal 

to make reasonable accommodations because of the overall demands of running a 

prison). 

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Here, there are obvious administrative, safety, and security concerns posed by 

plaintiffs’ request for a release of some 16,000 offenders in subclasses 1 and 2 at once. 

First, the administrative effort needed to accomplish this task would be massive. 

IDOC staff are currently working around the clock to take all measures necessary to 

prevent and treat COVID-19. To redirect resources to release all plaintiffs in 

subclasses 1 and 2 on medical furlough would significantly hinder these efforts. 

Second, even a “temporary” release of approximately 16,000 offenders, with limited 

or no oversight, would present significant safety and security concerns for the 

prisoners themselves and for the public at large.

Plaintiffs contend that defendants’ current practice related to releases and 

transfers to combat COVID-19 disparately impact them because they are medically 

vulnerable. Dkt. 9 at 48. But plaintiffs fail to provide any appropriate comparables 

necessary to create a plausible inference of any disparate effect on them.

“Unlike a claim for disparate treatment, a claim for disparate impact doesn't 

require proof of intentional discrimination.” Albuquerque Pub. Sch., 813 F.3d at 

1298 (internal quotation marks and citations omitted). Instead, to “prove a case 

of disparate impact discrimination, the plaintiff must show that a specific policy 

caused a significant disparate effect on a protected group.” Id. (internal quotation 

marks and citation omitted). “This is generally shown by statistical evidence 

involving the appropriate comparables necessary to create a reasonable inference 

that any disparate effect identified was caused by the challenged policy and not other 

causal factors.” Id. (internal quotation marks and citation omitted). “Moreover, 

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a disparate impact claim must allege a pattern or practice of discrimination, not 

merely an isolated instance of it.” Id. (citation omitted).

Plaintiffs fail to provide any appropriate comparables necessary to create a

plausible inference of any disparate effect. Instead, plaintiffs rely entirely on 

conclusory claims about the unprecedented impact of COVID-19. In doing so, 

plaintiffs admit that any disparate effect is caused by COVID-19, not defendants’ 

policies. Their assertions are facially insufficient to establish a plausible disparate 

impact claim. 

The Court should deny plaintiffs’ motion because they cannot clearly establish

a likelihood of success on the merits of their deliberate indifference or ADA claims.

II. Plaintiffs Have Not Demonstrated They Face the Kind of Irreparable Harm 

Necessary to Warrant Their Requested Extraordinary Relief. 

 

Plaintiffs’ motion also should be denied because they cannot establish 

irreparable harm. Winter, 555 U.S. at 22. Plaintiffs argue that there is a “possibility

that absent immediate relief from the Court, vulnerable prisoners will be infected 

with COVID-19.” Dkt. 9 at 64 (emphasis added). But the Supreme Court in Winter

confirmed that the “possibility” of irreparable harm is not enough; plaintiffs must 

“demonstrate that irreparable injury is likely in the absence of an injunction.” 555 

U.S. at 22 (emphasis in original). 

In Orr v. Shicker, 2020 WL 1329659, at *8–10 (7th Cir. Mar. 23, 2020), the 

Seventh Circuit recently adhered to Winter by striking down a preliminary injunction 

and reversing class certification of two classes of Illinois prisoners who complained 

about lack of treatment for the hepatitis C virus (HCV). The court instructed that 

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irreparable harm is a harm that “cannot be repaired,” and a plaintiff “must 

demonstrate that he will likely suffer irreparable harm absent obtaining preliminary 

injunctive relief.” Id. at *9 (citing Whitaker By Whitaker v. Kenosha Unified Sch. 

Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017)). The court rejected the 

district court’s preliminary injunction based on the alleged possibility of harm caused 

by HCV; the court noted that injunctive relief based on a possibility of harm “is 

inconsistent with our characterization of injunctive relief as an extraordinary remedy 

that may only be awarded upon a clear showing that the plaintiff is entitled to such 

relief.” Id. (citing Winter, 555 U.S. at 22).

Here, defendants do not underestimate the possible risk COVID-19 poses to 

the IDOC prison population and staff. But, like the plaintiffs in Orr, plaintiffs’ case 

is flawed because it is based on the possibility that a substantial risk might arise from 

COVID-19 generally, not that any named plaintiff faces a particular probable harm.

III. The Harm to the State and Public if an Injunction Issues Outweighs the 

Possible Harm to Plaintiffs Absent an Injunction. 

Under the “balance of harms” portion of the analysis, plaintiffs must establish 

that “the harm they would suffer without the injunction is greater than the harm that 

preliminary relief would inflict on the defendants.” Mich. v. U.S. Army Corps of Eng’g, 

667 F.3d 765, 769 (7th Cir. 2011). Where, as here, a movant shows a low likelihood of 

success on the merits, the movant “must compensate for the lesser likelihood of 

prevailing by showing the balance of harms tips decidedly in favor of the movant.” 

Boucher, 134 F.3d at 826 n.5 (emphasis in original). 

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The court also should consider whether a preliminary injunction would cause 

harm to the public interest. Platinum Home Mort. Corp. v. Platinum Fin. Group, Inc., 

149 F.3d 722, 726 (7th Cir. 1998). As discussed above, even a “temporary” release of 

approximately 16,000 convicted felons, with limited or no oversight, and without the 

detailed risk assessment performed by the Department before any prisoner is 

released, would present significant safety and security concerns for the prisoners 

themselves and for the public at large.

Plaintiffs’ requested relief also is not in the public interest because it would 

drastically interfere with the State’s ability to manage its own prison system. Rowe 

v. Finnan, No. 11-CV-524, 2013 WL 74609, at *2 (S.D. Ind. Jan. 4, 2013). As discussed 

above, the Court should “afford appropriate deference and flexibility to state officials 

trying to manage a volatile environment.” Id. (quoting Sandin v. Conner, 515 U.S. 

472, 483 (1995)). “Any injunction issued against prison officials dealing with the dayto-day operation of the prison system may cause substantial harm to both public and 

private interests.” Id. The injunction sought here, which would strip the Department 

of the most basic control over its prison system—the power to determine who may be 

safely released—would cause substantial harm to the public interest, as well as to 

the interests of the victims of plaintiffs’ crimes. It also would interfere with the 

Department’s efforts to make sure prisoners are properly released to a safe home or 

host site. Plaintiffs’ request that they and the Court substitute their own judgment 

for the Department’s in determining who may be safely released from prison and on 

what conditions, is not responsible or in keeping with the public interest.

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Although defendants do not minimize the possibility that prisoners may 

contract COVID-19 (and in fact are taking significant actions to prevent the spread 

of COVID-19), that possibility does not outweigh the harm to the public if the Court 

were to interfere with the Department’s current efforts to protect prisoners and 

prison staff, including through the release of prisoners in a manner that is as safe as 

possible and consistent with Illinois law. The balance of equities weighs against 

granting plaintiffs’ requested relief. 

IV. The Court Should Not Provisionally Certify Subclasses 1 and 2. 

In their motion, plaintiffs ask the Court to “preliminarily certify Plaintiffs’ 

proposed subclasses 1 and 2.” Dkt. 8 at 6, 21; Dkt. 9 at 55. The Court should decline 

that request. 

Plaintiffs bear the burden of establishing the propriety of class certification by 

a preponderance of the evidence. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 

(1997); Orr, 2020 WL 1329659, at *4. Rule 23 provides several requirements for class 

certification, and the failure to satisfy even one of them precludes class certification. 

Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008). 

When deciding whether to certify a class, courts must conduct a rigorous 

analysis, including consideration of merits evidence where appropriate. For example, 

in Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001), the Seventh 

Circuit admonished the district court for ignoring evidence that undermined class 

certification and accepting the allegations of the complaint as true. In short, “a 

district court must make whatever factual and legal inquiries are necessary to ensure 

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that requirements for class certification are satisfied before deciding whether a class 

should be certified, even if those considerations overlap the merits of the case.” Am. 

Honda Motor Co., 600 F.3d at 815; see also Spano v. Boeing Co., 633 F.3d 574, 583

(7th Cir. 2011).

In this case, plaintiffs have presented no actual evidence about the proposed 

class. They rely on the allegations of their complaint and multiple hearsay exhibits, 

but that is not enough. Szabo, 249 F.3d at 675. The Court should deny preliminary 

certification for this reason alone. 

Moreover, the proposed subclasses clearly lack commonality and typicality. To 

meet the commonality requirement, plaintiffs’ claims “must depend upon a common 

contention . . . of such a nature that it is capable of classwide resolution—which 

means that determination of its truth or falsity will resolve an issue that is central to 

the validity of each one of the claims in one stroke.” Orr, 2020 WL 1329659, at *5

(quoting Wal-Mart, 564 U.S. at 350). “What matters to class certification . . . is not 

the raising of ‘common’ questions—even in droves—but, rather the capacity of a 

classwide proceeding to generate common answers apt to drive the resolution of the 

litigation.” Chicago Teachers Union, Local No. 1 v. Bd. of Ed. of City of Chicago, 797 

F.3d 426, 434 (7th Cir. 2015) (quoting Wal-Mart, 564 U.S. at 350 (emphasis in 

original)). “Dissimilarities within the proposed class are what have the potential to 

impede the generation of common answers.” Orr, 2020 WL 1329659, at *5 (quoting 

Wal-Mart, 564 U.S. at 350).

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Plaintiffs here posit three common questions: whether COVID-19 poses a 

substantial risk of harm, whether defendants have measures available to them to 

reduce the prison population, and whether defendants have failed to use those 

measures effectively. Dkt. 8 at 11. These are not common questions because the 

answers to them would not “drive the resolution of the litigation.” Even if the Court 

were to determine that the answer to each of these questions is yes, that would not 

establish that every member of subclasses 1 and 2 should be released on a medical 

furlough. There are important differences among the individual members of the 

proposed subclasses that preclude any common resolution of this case. These 

differences include whether the prisoner can obtain necessary medical care within 

the prison system; whether the prisoner can be safely furloughed; whether the 

prisoner has a safe host site; whether that host site poses less risk of infection than 

the prisoner’s current facility; and whether the class member might potentially put a 

vulnerable family member at risk of infection at the host site. The Department should 

be able to evaluate these factors before deciding whether to grant any furlough. Thus, 

resolution of plaintiffs’ asserted common questions would not resolve this case. 

Typicality is lacking for the same reasons. To meet the typicality requirement, 

a class representative must be part of the class and must “possess the same interest 

and suffer the same injury” as the other class members. Orr, 2020 WL 1329659, at *6 

(quoting Wal-Mart, 564 U.S. at 348). The commonality and typicality requirements 

“tend to merge.” Spano, 633 F.3d at 586 (quoting General Tel. Co. of the Southwest 

v. Falcon, 457 U.S. 147, 157 n.13 (1982)). 

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Here, even the limited information alleged about the proposed representatives 

of subclasses 1 and 2 shows they have significant differences from the rest of the class,

defeating typicality. These include the following: 

 The safety risk that the class member poses both to his/her immediate 

family and to the public. For example, Gerald Reed is serving a life sentence 

for murder, and was convicted of aggravated kidnapping and attempted 

robbery in the same event.16 Tewkunzi Green has 21 years left on a 34-year 

sentence for murder,17 and Carl Reed has eight years left on a 27-year 

sentence for murder.18 These plaintiffs may argue they do not pose a safety 

risk to the public, but the Department is entitled to make its own 

determination on this point. 

 Whether the class member has a safe host site. Danny Labosette alleges 

that he is “eligible to be transferred to home detention at his mother’s home 

in Florida.” Dkt. 8 at 16–17. But any transfer to Florida would require the 

approval of Florida’s Department of Parole under the Interstate Compact 

for Adult Supervision, and Florida is not accepting any discretionary 

transfers at this time. See https://www.interstatecompact.org/covid19. 

Plaintiffs do not indicate that Mr. Labosette would be considered a 

“returning resident” of Florida, nor that he has been approved for transfer 

by Florida.

 Whether the class member might potentially put a vulnerable family 

member at risk. William Richard (age 66), Gerald Reed (age 57), and Danny 

Labosette (age 56) all plan to live with their mothers upon release. Dkt. 8 

at 15–16. These plaintiffs’ mothers are likely much older than these 

plaintiffs and therefore more at risk of infection. 

In summary, there are significant differences among members of the proposed 

subclasses 1 and 2 that impede any single injunctive remedy. Because commonality 

and typicality are lacking, neither the class nor the proposed subclasses should be 

certified. 

 

16 See https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=N32920. 

17 See https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=R84568.

18 See https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=R48993.

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CONCLUSION

Defendants have moved quickly and aggressively to take concrete actions to 

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

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

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

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

is prohibited by the PLRA and binding case law.

Plaintiffs have not presented plausible claims giving them a likelihood of 

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

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

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

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

Department is already taking consistent with Illinois law.

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

temporary restraining order or a preliminary injunction.

Dated: April 6, 2020

KWAME RAOUL

Attorney General of Illinois

Nicholas S. Staley

Colleen Shannon

Office of the Illinois Attorney General

100 West Randolph Street

Chicago, Illinois 60601

Respectfully Submitted,

/s/ R. Douglas Rees

R. DOUGLAS REES

Deputy Attorney General, Civil Litigation

Office of the Illinois Attorney General

100 West Randolph Street, 13th Floor

Chicago, Illinois 60601

(312) 814-3498

drees@atg.state.il.us

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