IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

ANTHONY MAYS, Individually and on behalf )

of a class of similarly situated persons; and )

JUDIA JACKSON, as next friend of KENNETH )

FOSTER, Individually and on behalf of a class )

of similarly situated persons, )

)

Plaintiffs-Petitioners, )

)

v. ) Case No. 20 C 2134

)

THOMAS DART, Sheriff of Cook County, )

)

Defendant-Respondent. )

PLAINTIFFS’ RESPONSE TO THE COURT’S APRIL 3, 2020 ORDER

Stephen Weil

Sarah Grady

Loevy & Loevy

311 North Aberdeen St., 3rd Fl.

Chicago, IL 60607

(312) 243-5900

sarah@loevy.com

Locke E. Bowman

Alexa A. Van Brunt

Roderick and Solange MacArthur Justice Center

Northwestern Pritzker School of Law

375 East Chicago Ave.

Chicago, IL 60611

(312) 503-0884

Charles Gerstein (pro hac vice application pending)

Alec Karakatsanis (pro hac vice application forthcoming)

Civil Rights Corps

1601 Connecticut Ave NW, Ste. 800

Washington, DC 20009

(202) 894-6128 

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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

DISCUSSION..................................................................................................................................2

I. The Relevant Provisions of 18 U.S.C. § 3626 .....................................................................2

II. The PLRA Does Not Apply to Subclass A’s Request for a Writ of Habeas Corpus...........4

III. Plaintiffs’ Request for a Preliminary Injunction to Remedy Unconstitutional Conditions 

of Confinement at the Jail Satisfy Section 3626(a)(2) and Are Necessary, Although 

Potentially Insufficient, To Protect the Class ......................................................................5

A. Plaintiff’s Proposed Injunctive Relief Regarding Conditions at the Jail Satisfies 

Section 3626(a)(2) .........................................................................................................5

B. Plaintiffs’ Proposed Injunctive Relief May Not Be Sufficient ....................................10

IV. Subclass B Seeks Transfer Within the Jurisdiction of the Sheriff in Response to a 

Growing Pandemic Inside the Jail, Relief That Satisfies the Need-NarrownessIntrusiveness Criteria and Is Not a Prisoner-Release Order ..............................................17

A. Plaintiffs’ Requested Transfer Is Within the Court’s Equitable Authority and Does 

Not Require the Sheriff to Exceed His Statutorily Prescribed Authority ....................18

B. The Requested Relief is Not a Prisoner Release Order ...............................................20

C. The Relief Requested for Subclass B is Narrowly Drawn, Extends No Further than 

Necessary, and is the Least Intrusive Means Necessary to Address the Violations at 

Stake.............................................................................................................................24

CONCLUSION .............................................................................................................................25

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TABLE OF AUTHORITIES 

Cases

Abu-Jamal v. Wetzel, 2017 WL 34700 (M.D. Pa. Jan. 3, 2017)....................................................24

Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010).......................................................7

Basank v. Decker, ___ F. Supp. 3d ____, (S.D.N.Y. Mar. 26, 2020) .............................................4

Benjamin v. Fraser, 156 F. Supp. 2d 333 (S.D.N.Y. 2001) ....................................................... 7-8

Blair–Bey v. Quick, 151 F.3d 1036 (D.C.Cir.1998) ........................................................................4

Braggs v. Dunn, 383 F. Supp. 3d 1218 (M.D. Ala. May 4, 2019)............................................... 8-9

Brown v. Plata, 563 U.S. 493 (2011)...............................................................................................7

Caiozzo v. Koreman, 581 F.3d 63 (2d. Cir. 2009)..................................................................... 7-12

Chan v. County of Sacramento, 2011 WL 2636262 (E.D. Cal. July 5, 2011)...............................24

Davis v. Fechtel, 150 F.3d 486 (5th Cir.1998) ................................................................................4

DeBartolo Corp v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988)...16

Doe v. Younger, No. 91-187 (E.D. Ky. Sept. 4, 1996) ...................................................... 19, 21-22

Duvall v. O’Malley, 2016 WL 3523682 (D. Md. June 28, 2016) .................................................10

Estelle v. Gamble, 429 U.S. 97 (1976) ..........................................................................................16

Farmer v. Brennan, 511 U.S. 825 (1994) .....................................................................................17

Farnam v. Walker, 593 F.Supp.2d 1000 (C.D. Ill. 2009)..............................................................24

Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) .............................................................................3, 7

Flynn v. Doyle, 630 F.Supp.2d 987 (E.D. Wis. Apr. 24, 2009).....................................................24

Francis v. Hammond, 2013 WL 12167887 (W.D. Wash. Mar. 4, 2013) ......................................24

Gilmore v. California, 220 F.3d 987 (9th Cir. 2000)............................................................... 20-22

Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005)..........................................................................17

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Greyer v. Illinois Dep't of Corr., 933 F.3d 871 (7th Cir. 2019) .....................................................4

Helling v. McKinney, 509 U.S. 25 (1993)...............................................................................16, 24,

Johnson v. Harris, 479 F. Supp. 333 (S.D.N.Y. 1979) .................................................................17

Jones v. United States, 529 U.S. 848 (2000) .................................................................................16

Kentucky v. King, 563 U.S. 452 (2011) ..................................................................................15, 20

McIntosh v. United States Parole Commission,...............................................................................4

McNearney v. Washington Dep’t of Corr. (W.D. Wash. Jan. 9, 2013).........................................24

Mitts v. Obandina, 2012 WL 4060013 (S.D. Ill. Aug. 27, 2012)..................................................24

Morales Feliciano v. Rullan, 378 F.3d 42 (1st Cir. 2004).........................................................7, 23

Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000) .......................................................................2, 5

Murphy v. Lane, 833 F.2d 106 (7th Cir. 1987)..............................................................................17

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)..........................................................16

Norsworthy v. Beard, 87 F.Supp.3d 1164 (N.D. Cal. 2015)..........................................................24

Perez v Cate, 2009 WL 440508 (N.D. Cal. Feb. 23, 2009)...........................................................24

Petties v. Carter, 836 F.3d 722 (7th Cir. 2016).............................................................................18

Plata v. Brown, 2013 WL 3200587 (N.D. Cal. June 24, 2013).....................................................20

Plata v. Newsom, No. 90 C 0520 (N.D. Cal. April 4, 2020)..........................................................15

Preiser v. Rodriguez, 411 U.S. 475 (1973)....................................................................................17

Reaves v. Dep’t of Correction, 392 F.Supp.3d 195 (D. Mass. 2019) ......................... 17, 20-21, 23

Thakker v. Doll, No. 20 C 0480 (M.D. Pa. Mar. 31, 2020) ............................................................5

Turner v. Clelland, 2016 WL 1069665 (M.D.N.C. Mar. 16, 2016) .............................................24

Tyler v. Anderson, 749 F.3d 499 (6th Cir. 2014).....................................................................12, 15

United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366 (1909)...........16

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United States v. Alabama, 2015 WL 3796526 (M.D. Ala. June 18, 2015) .............................. 9-10

United States v. Wallen, 177 F. Supp. 2d 455 (D. Md. 2001) ......................................................17

Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000) .....................................................................4, 24

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .................................................................20

Williams v. Dart, Case No. 19-02108 (7th Cir).............................................................................18

Statutes

18 U.S.C. § 3626.................................................................................................................... passim

28 U.S.C. § 1983.................................................................................................................... passim

28 U.S.C. § 2241..............................................................................................................................4

28 U.S.C. § 2254..............................................................................................................................4

Other Authorities 

Bryant. Miranda. “Coronavirus Spread at Rikers is a ‘Public Health Disaster,’ Says Jail’s Top 

Doctor,” The Guardian (Apr. 1, 2020), https://www.theguardian.com/usnews/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster...........................11

Centers for Disease Control, Coronavirus Disease 2019 (COVID-19): Social Distancing, 

Quarantine, and Isolation, (last visited Apr. 6, 2020) 

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

............................................................................................................................................14

Cook County Board of Commissioners. Current Budget Information,

https://www.cookcountyil.gov/Budget ..............................................................................12

Cook County Sheriff’s Office. Cook County Jail infection figures: Cook County 

Sheriff, https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ ............................12

Cook County Sheriff’s Office. COVID-19 Cases at CCDOC (last updated Apr. 5, 

2020), https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/...............................12

Cook County Sheriff’s Office. “Sheriff Dart Institutes Comprehensive Precautionary Measures 

to Address COVID-19 Threat,” (Mar. 20, 

2020), https://www.cookcountysheriff.org/sheriff-dart-institutes-comprehensiveprecautionary-measures-to-address-covid-19-threat/ ........................................................11

Ewing Tia. “Inmates concerned as COVID-19 spreads through Cook County Jail,” 

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Fox 32 (Apr. 3, 2020), available at https://www.fox32chicago.com/news/inmatesconcerned-as-covid-19-spreads-through-cook-county-jail ...............................................11

Kendall, Tyler. Coronavirus cases surge inside Chicago's Cook County Jail,” 

CBSNews (Apr. 5, 2020), https://www.cbsnews.com/news/chicago-cook-county-jailcoronavirus-life-inside-covid-19-cases/ ............................................................................13

Kendall, Tyler. "We're at war with no weapons": Coronavirus cases surge inside Chicago's Cook 

County Jail,” CBSNews (Apr. 5, 2020), https://www.cbsnews.com/news/chicago-cookcounty-jail-coronavirus-life-inside-covid-19-cases/..........................................................13

Lewis, Sean. “Sheriff Dart working to contain COVID-19 spread in Cook County Jail, 

WGN (Mar. 31, 2020), available at https://www.fox32chicago.com/news/inmatesconcerned-as-covid-19-spreads-through-cook-county-jail................................................11

NBC Chicago. Read Pritzker’s Full Statement Announcing Illinois Stay-at-Home Order 

Extension,” NBC5 (Mar. 31, 2020), https://www.nbcchicago.com/news/local/readpritzkers-full-statement-announcing-illinois-stay-at-home-order-extension/2247976/ ....19

Neff, Joseph, Blaninger, Keri. Federal Prisons Agency ‘Put Staff in Harm’s Way’ of 

Coronavirus, The Marshall Project (Apr. 3, 2020) https://bit.ly/2xVAeaE ......................10

New York Times, Almukhtar, Sarah , et al. Coronavirus in the U.S.: Latest Map and Case 

Count,” N.Y. Times (last updated Apr. 5, 2020),

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html .........................1

Pritzker,Governor J.B. Executive Order in Response to COVID-19 

(COVID Executive Order No. 8) (Mar. 20, 2020), pg. 1-5,

available at https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder2020-10.pdf .......................................................................................................................19

Sheets, Connor. Alabama prison system’s COVID-19 plan anticipates widespread infection, 

deaths, National Guard intervention, AL.com (Apr. 5, 2020), available 

at https://www.al.com/news/2020/04/alabama-prison-systems-covid-19-plan-anticipateswidespread-infection-deaths-national-guard-intervention.html.........................................10

Quandt, Katie Rose, Casella, Jean. “U.S. Jails Will Become Death Traps in Coronavirus 

Pandemic,” The Guardian (Mar. 30, 

2020), https://www.theguardian.com/commentisfree/2020/mar/30/jails-coronavirus-usrikers-island........................................................................................................................11

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INTRODUCTION

The Cook County Jail is now the site of the largest known cluster of COVID-19 cases in 

the United States.1 Since the filing of the case, two days ago, the number of detainees infected 

with the disease has grown from 167 to at least 234; 78 staff are infected; 14 detainees are 

hospitalized.2 These numbers rise every day, and the rate of infection in the Jail is now 32 times 

the rate in Cook County writ large. In the two weeks since it was first detected, 1 out of every 20 

detainees at the Jail has become infected.3 It is unclear how many have been tested or how many 

tests are outstanding. 

Plaintiffs have filed a Complaint seeking an emergency writ of habeas corpus for 

detainees who are especially vulnerable to a grave risk of serious illness and death because of 

their age or medical condition. They also seek injunctive relief under 42 U.S.C. § 1983 to bring 

the conditions at the Jail into compliance with the Constitution, and to transfer those detainees at 

the Jail who have been exposed to the virus to a form of custody that is safe. In their motion for a 

temporary restraining order or preliminary injunction, Plaintiffs request three categories of relief: 

(1) for Subclass A, they seek immediate release through a writ of habeas corpus; (2) for Subclass 

B, they seek transfer to a safe environment; and (3) for the entire Class, they seek an Order 

requiring the Jail to adhere to CDC guidelines and take other actions required by medical 

 1 “Coronavirus in the U.S.: Latest Map and Case Count,” N.Y. Times (last updated Apr. 5, 2020), 

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (“Though many of the first 

coronavirus cases in the United States were tied to overseas travel, localized outbreaks have become 

increasingly common.” Cook County Jail is the top locale for this type of outbreak).

2 COVID-19 Cases at CCDOC (last updated Apr. 5, 2020), 

https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/.

3 See infra pg. 12.

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consensus to bring the conditions of confinement at the Jail into constitutional compliance. Dkt. 

2 at 11. 

Plaintiffs submit this brief in response to the Court’s request to “provide their position 

regarding the applicability and effect of 18 U.S.C. § 3626 to their lawsuit and, in particular, to 

the relief they are requesting in the TRO/PI motion.” Dkt. 10. In summary: (1) Plaintiffs’ first 

request, for habeas relief, is not governed by 18 U.S.C. § 3626. Moran v. Sondalle, 218 F.3d 647, 

651 (7th Cir. 2000) (per curiam). (2) Plaintiffs’ claims for emergency injunctive relief under 

Section 1983 comply with 18 U.S.C. § 3626 because they seek narrowly drawn injunctive relief 

that extends no further than what is required to ensure class members are held in constitutionally 

compliant conditions. (3) Neither of the requests for injunctive relief under Section 1983 

constitutes a prisoner release order, 18 U.S.C. § 3626(a)(3), and thus the requirements of Section 

3626(a)(3) do not apply to Plaintiffs’ current requests. (4) Given the imminent threat that an 

uncontrolled outbreak at the Jail imposes on class members and to the general public, however, 

Plaintiffs believe that a three-judge panel should be convened in the event that immediate 

compliance with the Constitution is not achieved. The unprecedented global pandemic—an 

infectious disease spreading inside the Cook County Jail at a rate fifty times that of the general 

U.S. population—requires unique and prompt action by this Court to ensure that this Court is in a 

position to save as many lives as possible.

DISCUSSION

I. The Relevant Provisions of 18 U.S.C. § 3626.

The Prison Litigation Reform Act (PLRA) applies to “any civil action with respect to 

prison conditions,” 18 U.S.C. § 3626, but not to petitions for habeas corpus. Moran, 218 F.3d at 

651. Requests for relief under Section 3626 are governed by Subsection (a) of that statute, which 

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contains three core provisions: Subsection (1) governs all prospective relief, Subsection (2) 

governs preliminary injunctions and temporary restraining orders, and Subsection (3) governs 

“prisoner release order[s].”

Subsection (1) requires that “[p]rospective relief in any civil action with respect to prison 

conditions shall extend no further than necessary to correct the violation of the Federal right of a 

particular plaintiff or plaintiffs,” 18 U.S.C. § 3626(a)(1)(A), and instructs courts to “give 

substantial weight to any adverse impact on public safety or the operation of a criminal justice 

system caused by the relief” when considering whether “such relief is narrowly drawn, extends 

no further than necessary to correct the violation of the Federal right, and is the least intrusive 

means necessary to correct the violation of the Federal right.” Id. Further, the statute requires that 

courts not order a state official to exceed their authority under state law unless doing so is 

required by federal law to protect a federal right and no other relief will do. Id. § 3626(a)(1)(B). 

Courts refer to these requirements as the “needs-narrowness-intrusiveness” criteria. E.g., Fields 

v. Smith, 653 F.3d 550, 558 (7th Cir. 2011). 

Subsection (2) applies the narrow-tailoring requirements of Subsection (1) to requests for 

preliminary injunctive relief, and further requires that all such relief “automatically expire on the 

date that is 90 days after its entry, unless the court makes the findings required under subsection 

(a)(1) [that the relief be narrowly tailored and minimally intrusive] . . . and makes the order final 

before the expiration of the 90-day period.” 18 U.S.C. § 3626(a)(2).

Finally, Subsection (3) governs “prisoner release order[s].” Id. § 3626(a)(3). A “prisoner 

release order” is defined as “any order, including a temporary restraining order or preliminary 

injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or 

that directs the release from or nonadmission of prisoners to a prison.” Id. § 3626(g)(4). 

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Subsection (3) imposes substantive and procedural requirements on prisoner-release orders. 

Procedurally, a prisoner-release order may issue only by order of a three-judge district court, and 

only after “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 the defendant has had a reasonable amount of time to comply with the previous 

court orders.” Id. at (3)(A) (numerals omitted). Substantively, “[t]he three-judge court shall enter 

a prisoner release order only if the court finds by clear and convincing evidence that crowding is 

the primary cause of the violation of a Federal right[] and no other relief will remedy the 

violation of the Federal right.” Id. at (3)(E). 

II. The PLRA Does Not Apply to Subclass A’s Request for a Writ of Habeas Corpus.

The PLRA does not apply to habeas corpus actions. Walker v. O'Brien, 216 F.3d 626, 

634 (7th Cir. 2000) (“[W]e conclude that cases properly brought under §§ 2241 or 2254 as 

habeas corpus petitions are not subject to the PLRA. In so doing, we bring this circuit into line 

with all of our sister circuits who have ruled on the matter.” (citing Davis v. Fechtel, 150 F.3d 

486, 488–90 (5th Cir.1998); McIntosh v. United States Parole Commission, 115 F.3d 809, 811–

12 (10th Cir.1997); Blair–Bey v. Quick, 151 F.3d 1036, 1039–41 (D.C.Cir.1998)); see also, 

Greyer v. Illinois Dep't of Corr., 933 F.3d 871, 878 (7th Cir. 2019) (observing that “habeas 

corpus petitions do not give rise to a strike under the PLRA.”). Recent district court orders 

granting petitions for habeas corpus relief in light of COVID-19 have not applied the PLRA to 

those actions. See, e.g., Basank v. Decker, ___ F. Supp. 3d ____, 2020 WL 1481503, at *7

(S.D.N.Y. Mar. 26, 2020) (granting petitioner’s Section 2241 request for a TRO, releasing them 

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from immigration detention because of COVID-19); Thakker v. Doll, No. 20 C 0480, Dkt. 47

(M.D. Pa. Mar. 31, 2020) (attached as Ex. G) (same).

4

III. Plaintiffs’ Request for a Preliminary Injunction to Remedy Unconstitutional 

Conditions of Confinement at the Jail Satisfy Section 3626(a)(2) and Are Necessary, 

Although Potentially Insufficient, To Protect the Class.

A. Plaintiff’s Proposed Injunctive Relief Regarding Conditions at the Jail 

Satisfies Section 3626(a)(2).

 The relief Plaintiffs seek on behalf of the entire Class is, simply, constitutionally compliant 

Jail conditions so that everyone in the Class is protected from the rampant transmission of a 

virulent and lethal disease. As set forth in Plaintiffs’ motion for a temporary restraining order or 

preliminary injunction, the Sheriff must comply with the CDC Guidance for Managing Detention 

and Correctional Facilities, including specific requirements for quarantine, medical isolation, 

access to trained medical staff to monitor and provide adequate care, sufficient soap, sanitizer 

and cleaning supplies, and—importantly—effective social distancing to the maximum possible 

extent for all staff and detainees. Pls.’ Prelim. Inj. Mot., Dkt. 2, at 15-16. These mandates also 

echo the expert recommendations of the medical declarants who have extensive experience with 

Cook County and Illinois correctional medical care, including former medical directors of the 

Cook County Jail. See Complaint, Ex. B, Dkt. 1-2.

In particular, in their motion for a temporary restraining order or preliminary injunction, 

Plaintiffs seek an Order from this Court requiring the Jail to immediately take the following 

actions:

 4 There are, of course, questions as to what process would be appropriate to enable the Court to 

evaluate the claims of the members of Subclass A for a temporary restraining order granting habeas relief. 

Should the court desire briefing on those questions, Plaintiff is prepared to submit a memorandum on an 

expedited schedule. 

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 Acquire rapid testing for COVID-19 in adequate supply to ensure that all 

who enter the facility with the coronavirus can be quickly identified and 

medically isolated;

 Quarantine all new detainees until test results become available or, if 

testing cannot be done, for 14 days, unless they become symptomatic;

 Medically isolate all detainees who are positive for COVID-19 in a 

controlled, monitored environment in which they are not at risk for 

infecting others;

 Quarantine all detainees who are symptomatic and/or have been exposed 

to a confirmed case of COVID-19 in a controlled, monitored environment 

for the appropriate time period where they are not at risk for infecting 

others;

 Provide adequate medical staff to monitor all detainees within the Jail who 

are in medical isolation or under quarantine; 

 Provide sufficient soap and hand sanitizer to all detainees so that detainees 

may frequently wash their hands;

 Provide masks to all detainees;

 Provide instruction to all staff and to all detainees regarding the 

importance of regularly sanitizing all surfaces and objects on which the 

virus could be present;

 Provide the soap and cleaning materials to enable this sanitizing, and 

supervise to ensure that sanitizing takes place between all uses of such 

surfaces and objects; and

 Mandate social distancing of detainees such that each is not at risk of 

exposure.

Dkt. 2 at 17-18. These steps are necessary to protect detainees at the Jail from further 

uncontrolled spread of COVID-19. They accordingly satisfy the criteria of section 3626(a)(2).

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Section 3626(a)(2) permits a court to order injunctive relief if it finds that the relief, taken 

as a whole, is narrowly drawn, extends no further than necessary to correct the constitutional 

violation, and is the least intrusive means necessary to correct the constitutional violation. 18 

U.S.C. § 3626(a); see also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010) 

(rejecting argument that PLRA requires provision-by-provision explanation of district court’s 

findings; court must make findings considering its “order as a whole”); see also Fields, 653 F.3d 

at 558 (finding that district court properly complied with PLRA because court “evaluated the 

record as a whole and identified evidence that fully support[ed] the scope of the injunctive 

relief” (emphasis added)). The application of this requirement is case-specific, and “must be 

undertaken in light of both the magnitude of existing constitutional violations and the available 

alternative remedies.” Morales Feliciano v. Rullan, 378 F.3d 42, 54 (1st Cir. 2004).

In Brown v. Plata, 563 U.S. 493 (2011), the Supreme Court explained that the narrow 

tailoring required by Section 3626(a) simply mandates “a fit between the [remedy’s] ends and 

the means chosen to accomplish those ends.” Id. at 531 (internal quotation marks omitted). 

Although the injunctive relief must not “reach out to improve prison conditions other than those 

that violate the Constitution[,]” narrow tailoring does not “suggest that a narrow and otherwise 

proper remedy for a constitutional violation is invalid simply because it will have collateral 

effects.” Id. Where the constitutional violation at issue is systemwide, systemwide relief is the 

appropriate, tailored remedy. See, e.g., Benjamin v. Fraser, 156 F. Supp. 2d 333, 345-55 

(S.D.N.Y. 2001) (finding that systemwide injunctive relief satisfied the criteria of Section 

3626(a) in class action litigation over the conditions of confinement for jail detainees), aff’d, in 

part, at 343 F.3d 35, 53-54 (2nd Cir. 2003), overruled on other grounds in Caiozzo v. Koreman, 

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581 F.3d 63 (2d. Cir. 2009); Braggs v. Dunn, 383 F. Supp. 3d 1218, 1265-1278 (M.D. Ala. May 

4, 2019) (same). Indeed as the Second Circuit explained in Benjamin, affirming a district court’s 

systemwide injunction order pertaining to prison ventilation, a systemwide injunctive order was 

in fact “more effective and less intrusive than an individual review of each window at the various 

facilities.” 343 F.3d at 53.

 As set forth in the Complaint, the current conditions at the Jail pose a substantial and 

imminent risk of serious harm to detainees housed there. See Hardeman v. Curran, 933 F.3d 816,

823 (7th Cir. 2019). The Complaint sets out evidence that, throughout the Jail, shared communal 

areas continue to be in use. That includes intake “bull pens” and dormitories for incoming 

detainees, and the housing of detainees in dormitories and other congregate settings in the Jail. 

See Dkt. 1 ¶ 40. The Complaint also explains that guards have not consistently worn personal 

protective equipment (PPE), and that detainees have been given none. Id. ¶ 41. The Complaint 

details that detainees have had inconsistent or limited access to soap and hand sanitizer, id., and 

that detainees do not have access to clearing supplies. Id. And it sets out that detainees and staff 

throughout the Jail touch and share objects throughout the day—from door handles to phones to 

toilets to tables to lunch trays—that are not cleaned frequently enough to stop the spread of a 

virus that can live on such surfaces for days. Id. ¶¶ 11, 21, 35, 48. 

The requested remedial measures are immediately needed to protect the health and safety 

of detainees at the Jail, and they are designed to address these failures. The injunctive relief 

sought by Plaintiffs is supported by the CDC’s guidance on managing COVID-19 in jails, as well

as evidence from doctors with experience with the Cook County correctional medical system, 

including Dr. Puisis, who was the Medical Director of the Cook County Jail from 1991 to 1996 

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and Chief Operating Officer for the medical program at the Cook County Jail from 2009 to 2012. 

Dkt. 1-2; see also Benjamin, 156 F. Supp. 2d at 345-55 (relying on expert testimony in finding 

that systemwide injunctive relief satisfied the needs-narrowness-intrusiveness criteria); Braggs v. 

Dunn, 383 F. Supp. 3d 1218, 1265-1278 (M.D. Ala. May 4, 2019) (same). 

The requested relief protects not only the class members, but the safety of the public at 

large, a consideration encompassed within both subsections (a)(1)(A) and (a)(2) (“The court 

shall give substantial weight to any adverse impact on public safety or the operation of a criminal 

justice system . . . .”). The Jail is not a closed environment. The measures put in place to protect 

the Plaintiffs and class members will simultaneously impact the health and well-being of the

community at large. The Complaint explains:

By necessity, members of the free community, including correctional officers, 

social workers, attorneys, medical personnel, and many others must enter and 

leave jails on a daily basis. Staff arrive and leave each facility three times a day in 

large numbers, and there is no current, in-place ability to adequately screen staff 

for new, asymptomatic infection. In addition, new detainees are admitted into jails 

every day, many of whom may be asymptomatic and thus not flagged for 

quarantine, even with robust intake screening procedures. When the COVID-19 

virus occurs and spreads within a jail, all persons, staff and prisoners alike, are at 

heightened risk of contracting the virus and, in turn, spreading the virus to others 

with whom they come in contact in their own homes and neighborhoods.

Complaint, Dkt. 1, at ¶ 25. 

As the Governor’s March 20, 2020 Executive Order makes clear, public safety is served 

by the emergency relief requested.5 The implementation of the CDC Guidance measures and 

 5 Executive Order in Response to COVID-19 (COVID Executive Order No. 8) (Mar. 20, 2020) (Executive 

Order), pg. 1-5, available at https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-10.pdf

(last visited Apr. 6, 2020); see also “Read Pritzker’s Full Statement Announcing Illinois Stay-at-Home Order 

Extension,” NBC5 (Mar. 31, 2020), https://www.nbcchicago.com/news/local/read-pritzkers-full-statementannouncing-illinois-stay-at-home-order-extension/2247976/ (last visited Apr. 4, 2020).

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medical experts’ recommendations will prevent prisoners from spreading COVID-19 to one 

another, then transmitting it to correctional staff, who may spread it to their families and their 

communities. Cf. United States v. Alabama, 2015 WL 3796526, at *4 (M.D. Ala. June 18, 2015) 

(approving a settlement that “will promote public safety by not only protecting the prisoners at 

Tutwiler [Prison for Women] from sexual abuse and harassment, it will also protect the prison 

guards”); Duvall v. O’Malley, 2016 WL 3523682, *11 (D. Md., June 28, 2016) (approving a 

consent judgment addressing medical and mental health care and living conditions, and holding 

that “the facilities will be safer and more orderly when this relief is fully implemented”). 

The evidence provided by Plaintiffs in their Complaint and motion for a temporary 

restraining order amply supports the findings required by Section 3626(a)(2): Experts and 

government agencies alike describe the measures for which Plaintiffs seek an injunction as 

necessary to protect against the spread of a deadly virus. 

B. Plaintiffs’ Proposed Injunctive Relief May Not Be Sufficient.

If the Court issues injunctive relief under Section 3626(a)(2), Plaintiffs respectfully 

submit that within 24 hours thereafter the Court should decide—either sua sponte pursuant to 

Section 3626(a)(3)(D), or pursuant to a submission by Plaintiffs under Section 3626(a)(3)(C)—

whether to request the convening of a three-judge court to determine whether a prisoner release 

order should be issued. A timeline this short is extraordinary. But it is called for by the 

extraordinary circumstances unlike any living person has ever seen, in which a deadly virus has 

shut down life as we know it around the world and in which crowded U.S. jails and prisons are, 

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without intervention, about to become sites of mass sickness and death.6 Section 3626 

contemplates precisely such a remedy in circumstances like this. 

Section (a)(3) provides that a three-judge panel may consider the appropriateness of a 

prisoner-release order if, one, the Court has entered an order under Section (a)(2) “to remedy the 

deprivation of the Federal right sought to be remedied through the prisoner release order,” and 

two, the Sheriff “has had a reasonable time to comply” with the Section (a)(2) order. 18 U.S.C. 

§§ 3626(a)(3)(A)(i)-(ii). Plaintiffs seek relief under Section (a)(2) to protect them, and the class 

they seek to represent, from being incarcerated in a jail where the conditions of confinement 

have incubated and accelerated the transmission of a fast-moving, lethal virus that threatens to 

make them seriously ill, damage their internal organs (possibly permanently), or kill them, in a 

matter of days. Being imprisoned in such circumstances violates Plaintiffs’ rights, as set forth in 

Plaintiffs’ motion for a temporary restraining order or preliminary injunction. Dkt. 2 at 13-14.

In public statements the Sheriff’s office has repeatedly assured members of the public 

that it has taken extraordinary steps to protect the jail population from the pandemic. The Sheriff 

contends that he has made available increased cleaning supplies and personal protective 

 6 For example, five prisoners have already died in a federal prison in Oakdale, Louisiana. Joseph 

Neff & Keri Blakinger, “Federal Prisons Agency ‘Put Staff in Harm’s Way’ of Coronavirus, The 

Marshall Project (Apr. 3, 2020), available at https://bit.ly/2xVAeaE (last visited Apr. 6, 2020). And the 

Alabama Department of Corrections predicts that its death count will number 185. Connor Sheets, 

“Alabama prison system’s COVID-19 plan anticipates widespread infection, deaths, National Guard 

intervention, AL.com (Apr. 5, 2020), available at https://www.al.com/news/2020/04/alabama-prisonsystems-covid-19-plan-anticipates-widespread-infection-deaths-national-guard-intervention.html (last 

visited Apr. 6, 2020). The top doctor at Rikers Jail in New York days ago called the COVID-19 outbreak 

a “public health disaster.” Miranda Bryant, “Coronavirus Spread at Rikers is a ‘Public Health Disaster,’ 

Says Jail’s Top Doctor,” The Guardian (Apr. 1, 2020), available at https://www.theguardian.com/usnews/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster (last visited Apr. 6, 2020); see also 

Jean Casella and Katie Rose Quandt, “U.S. Jails Will Become Death Traps in Coronavirus Pandemic,” 

The Guardian (Mar. 30, 2020), available at https://www.theguardian.com/commentisfree/

2020/mar/30/jails-coronavirus-us-rikers-island (last visited Apr. 6, 2020).

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equipment,7 that he has implemented aggressive testing protocols to ensure that sick individuals

are quarantined,8 and that he has re-opened an unused portion of the jail to accommodate those 

quarantined and sick detainees.9 Indeed, the Sheriff’s office has emphasized that it was wellprepared for COVID-19, and that the steps that the Sheriff has taken have been designed to 

carefully to protect the jail’s population and employees.10

When put in its proper context—234 known cases of COVID-19 among Jail detainees 

within the span of two weeks—the Sheriff’s assurance that all possible steps to combat the virus 

have already been taken brings Plaintiffs, and should bring this Court, little comfort. Even if the 

Sheriff’s media statements are accurate, the official Cook County Department of Corrections 

(CCDOC) measures are woefully insufficient. Cook County is the host county for the Jail and 

virtually all its detainees and all of its employees hail from the County. As of this filing, there are

8,054 positive tests for COVID-19 in Cook County, with a total population of 5,150,233, a 

 7 Tia Ewing, “Inmates concerned as COVID-19 spreads through Cook County Jail,” Fox 32 (Apr. 

3, 2020), available at https://www.fox32chicago.com/news/inmates-concerned-as-covid-19-spreadsthrough-cook-county-jail (last visited Apr. 6, 2020).

8 Sean Lewis, “Sheriff Dart working to contain COVID-19 spread in Cook County Jail, WGN 

(Mar. 31, 2020), available at https://www.fox32chicago.com/news/inmates-concerned-as-covid-19-

spreads-through-cook-county-jail (last visited Apr. 6, 2020).

9 Cook County Sheriff’s Office, “Sheriff Dart Institutes Comprehensive Precautionary Measures 

to Address COVID-19 Threat,” (Mar. 20, 2020), https://www.cookcountysheriff.org/sheriff-dartinstitutes-comprehensive-precautionary-measures-to-address-covid-19-threat/.

10 Omar Jimenez, “America’s largest single site jail is home to a new coronavirus cluster,” CNN 

(Mar. 29, 2020), available at https://www.cnn.com/2020/03/29/us/detroit-coronavirus-cook-countyjail/index.html (last visited Apr. 6, 2020); Bill Hutchinson, “One of the largest single-site jails in the US 

grapples with 141 coronavirus cases,” ABC News (Mar. 31, 2020), available at 

https://abcnews.go.com/Health/largest-single-site-jails-us-grapples-141-coronavirus/story?id=69871778

(last visited Apr. 6, 2020).

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known infection rate of 1.56 per 1,000 people.11 In the Jail, by contrast, there are 234 confirmed 

infections out of 4,661 detainees and employees—a known infection rate of 50.2 per 1,000 

people. That is 32 times the rate in Cook County.

12 The first detainee tested positive for COVID19 two weeks ago; now 1 in 20 detainees at the Jail are infected. Seventy-eight staff members are 

infected as well.13 The Jail, in other words, is a dramatic accelerator of COVID-19, the Sheriff’s 

efforts notwithstanding. As of today, the Jail is the largest known cluster of COVID-19 

infections in the United States.14

There are three probable reasons for this, all of which are detailed in the Complaint. 

First, the reports from jail detainees and employees indicate that many of the Sheriff’s 

aggressive protocols for cleaning, distribution of soap, and provision of PPE have not been 

implemented. The Sheriff’s office has had a month to change its hygiene protocols to combat 

 11 County infection figures: State of Illinois, Coronavirus (COVID-19) Response, 

https://coronavirus.illinois.gov/s/ (last visited Apr. 6, 2020). County population: U.S. Census Bureau, 

https://www.census.gov/quickfacts/fact/table/cookcountyillinois/PST120218 (last visited Apr. 6, 2020).

12 Compare Cook County Jail infection figures: Cook County Sheriff, 

https://www.cookcountysheriff.org/covid-19-cases-at-ccdoc/ (last visited Apr. 6, 2020), with Cook 

County Jail population figures: Cook County Sheriff, https://www.cookcountysheriff.org/wpcontent/uploads/2020/04/CCSO_BIU_CommunicationsCCDOC_v1_2020_04_03.pdf (last visited April 

6, 2020).

13 The Cook County Sheriff has 3,439 employees. See Cook County Board—Current Budget 

Information, https://www.cookcountyil.gov/Budget. Plaintiffs do not include jail staff in the Jail’s 

infection rate because it is unclear how many staff work within the Jail. Additionally Jail staff work at, 

and are thus exposed to, the Jail only on certain days and for certain times of the day. Indeed news 

reports suggest that staff have drastically reduced the time they spend at the jail in order to protect 

themselves, making their high infection rate all the more troubling. See Tyler Kendall, "We're at war with 

no weapons": Coronavirus cases surge inside Chicago's Cook County Jail,” CBSNews (Apr. 5, 2020),

https://www.cbsnews.com/news/chicago-cook-county-jail-coronavirus-life-inside-covid-19-cases/ (last 

visited Apr. 6, 2020) (reporting that Jail “employees, who interact closely with inmates on a daily basis, 

are now going in once a week and working from home the other four.”).

14 See Supra, pg. 1 n.1.

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COVID-19. The employee and detainee reports indicate that it is incapable of actually 

implementing such changes in such a short time.

Second, there are evidently too many detainees in the jail to implement the social 

distancing and quarantining necessary to slow the spread of COVID-19. Social distancing is the 

sine qua non for stopping COVID-19’s spread.15 The Court need look no further than our 

collective experience: in the last few weeks, to achieve social distancing governments around the 

world have plunged national economies into likely economic depressions. Were other, less 

draconian measures capable of meaningfully slowing COVID-19’s spread, there is no question 

that social distancing would never have been ordered.

And as Dr. Puisis and his colleagues explain, however, social distancing is effectively 

impossible in correctional settings, for the simple reason that jails and prisons were designed as 

congregate security environments where social isolation is impossible. Puisis et al., Dkt. 1-2 ¶¶ 

23-24.

Third, as Dr. Puisis et al. point out, quarantine can also rapidly become impossible in 

such a setting:

Inmates are still being admitted into Cook County Jail. New inmates are being 

quarantined. Known or suspicious cases of COVID-19 require isolation from 

others. However, the housing units are not set up for mass quarantine or isolation. 

The jail was built with security in mind not medical isolation or quarantine. For 

purposes of quarantine, the jail is cohorting groups of incoming inmates into tiers 

for a period of time. Because inmates continue to be incarcerated in the Jail, 

invariably, this will result in a significant portion of the jail dedicated to 

quarantine. It is recommended that quarantine continue for 14 days. If any 

individual in the cohort becomes COVID-19 positive, the entire group is again 

quarantined again for another 14 days. As the number of persons in quarantine 

 15 Centers for Disease Control, Coronavirus Disease 2019 (COVID-19): Social Distancing, 

Quarantine, and Isolation, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html (last visited Apr. 6, 2020); Donald G. McNeil Jr., “Restrictions are Slowing Coronavirus 

Infections, New Data Suggest, N.Y. Times (Mar. 30, 2020), available at https://www.nytimes.com/

2020/03/30/health/coronavirus-restrictions-fevers.html (last visited Apr. 6, 2020).

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grows, managing them clinically becomes insurmountable and will result in 

failure to manage. 

Dkt. 1-2 ¶ 16 (footnote omitted).

In other words, the procedure for quarantine that Dr. Puisis describes—limited, as it must 

be, by the physical structure of the Jail—does not effectively segregate potentially infected, 

newly arriving detainees from one another, creating a need to quarantine larger and larger 

segments of the Jail’s population. Eventually, capacity to manage medically those who are in 

quarantine will overwhelm Jail staff. Some of the detainee declarations attached to Plaintiffs’ 

complaint suggest that this may already be happening. 

The exceptional and horrific rate of infection in the Jail and the systemic problems 

identified in the Complaint—notwithstanding the Sheriff’s insistence that everything possible is 

being done—suggest a stark reality. Even after the Court would order the Sheriff to comply with 

CDC Guidance, as Plaintiffs request the Court to do, it will become readily apparent (to the 

extent it is not already) that those measures alone will be insufficient to protect the class and 

particularly the members of Subclass A from the unacceptable risk of infection and possible 

death. Therefore, in the interest of saving lives in this unprecedented health emergency the Court 

should begin the process of setting up the three-judge panel that Section 3626(a)(3) requires to 

address the release of some members of the Class, including but not limited to those detainees 

most vulnerable to the disease.

Section 3626(a)(3)(A)(ii) provides that a release order may not be entered until the 

defendant has had “a reasonable amount of time to comply with” the Court’s Section 3626(a)(2) 

order. “Reasonable” does not mean moderate or slow—it is a flexible standard designed to 

match the exigencies of the moment. Kentucky v. King, 563 U.S. 452, 462 (2011) 

(reasonableness requirement under the Fourth Amendment depends on the circumstances); Tyler 

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v. Anderson, 749 F.3d 499, 510 (6th Cir. 2014) (“reasonable time” as used in Federal Rule of 

Civil Procedure 60(b) “depends on the factual circumstances of each case”). Cf. Black’s Law 

Dictionary, “Reasonable Time,” (11th ed. 2019) (“The time needed to do what a contract 

requires to be done, based on subjective circumstances”).

Indeed, the courts have already recognized that Section 3626(a)(3)(A)(ii)’s “reasonable 

amount of time” provision meets the exigencies of the COVID-19 epidemic. On April 4, the 

three-judge court in Plata v. Newsom, No. 90 C 0520, Dkt. 3261 (N.D. Cal. April 4, 2020)

(attached as Ex. H), which had been impaneled years ago pursuant to an existing release order, 

held that Plaintiffs had not satisfied Section 3626(a)(3) because the three-judge court had been 

impaneled for purposes of granting different relief, and thus there had not been the requisite 

Section 3626(a)(2) order for which defendants had been given a “reasonable amount of time to 

comply.” In its holding, however, the three-judge court made a point to emphasize that “[w]e 

recognize that what is reasonable in ordinary times may be quite different from what is 

reasonable in these extraordinary times.” Id. at 7 n.9. In his concurrence, Chief Judge Mueller 

emphasized that, while Section (a)(2) had to be complied with first, under the circumstances of 

the COVID-19 epidemic, the Section (a)(3) release order could still be achieved quickly: “Given 

the availability of expedited proceedings before those district courts to immediately exhaust the 

possibility of inmate transfers and relocations to secure facilities to achieve constitutionally 

acceptable conditions for the Plaintiff classes, those proceedings must be invoked first. Id. at 15 

(Mueller, J., concurring) (emphasis added).

16

 16 If this Court determines that “reasonable time” as used in the PLRA contemplates some fixed, 

longer period, Plaintiffs respectfully submit that the provision would be unconstitutional as applied. Such 

an interpretation would unlawfully prevent the application of judicial equitable authority to save people’s 

lives in the face of an unprecedented pandemic, cf. Helling v. McKinney, 509 U.S. 25, 33 (1993); Estelle 

v. Gamble, 429 U.S. 97, 103-04 (1976), and must be avoided. See Jones v. United States, 529 U.S. 848, 

857 (2000) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366 

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Plaintiffs have every reason to believe that the efficacy of any Section (a)(2) order will be 

quickly exhausted. The Sheriff’s office claims it has already acted with alacrity to stop the virus. 

Yet COVID-19 is exploding within the jail, and it is growing by the hour. By all appearances, 

the Sheriff’s office simply does not have the wherewithal to stop the spread of that virus within 

the Jail’s four walls, despite its efforts. Plaintiffs therefore respectfully suggest that 24 hours is a 

reasonable amount of time to comply with any Section (a)(2) order, and that thereafter the 

remedy of removal will likely be required.

IV. Subclass B Seeks Transfer Within the Jurisdiction of the Sheriff in Response to a 

Growing Pandemic Inside the Jail, Relief That Satisfies the Need-NarrownessIntrusiveness Criteria and Is Not a Prisoner-Release Order.

To remedy the spread of the disease, to which members of Subclass B members have 

already been exposed, the members of that subclass must be transferred to a safe facility or 

location within the Sheriff’s jurisdiction and control. That relief could include transfer to home 

confinement or electronic home monitoring (“EHM”), which are programs under the Sheriff’s 

control and supervision, or to any other safe condition of confinement.17 

 

(1909)) (“where a statute is susceptible of two constructions, by one of which grave and doubtful 

constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt 

the latter.”); Gilmore v. California, 220 F.3d 987, 998 (9th Cir. 2000) (9th Cir. 2000) (“The courts will 

therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp 

power constitutionally forbidden it.”) (citing DeBartolo Corp v. Florida Gulf Coast Bldg. & Constr. 

Trades Council, 485 U.S. 568, 575 (1988); see also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 

500 (1979) (“[A]n Act of Congress ought not be construed to violate the Constitution if any other possible 

construction remains available.”).

17 Subclass B Plaintiffs do not seek release from CCDOC custody, and thus this request does not 

implicate the mandates of Preiser v. Rodriguez, 411 U.S. 475 (1973). Cf. Glaus v. Anderson, 408 F.3d 

382, 386 (7th Cir. 2005) (“In Preiser v. Rodriguez, the Supreme Court held that the writ of habeas corpus 

was the exclusive civil remedy for prisoners seeking release from custody.”).

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A. Plaintiffs’ Requested Transfer Is Within the Court’s Equitable Authority 

and Does Not Require the Sheriff to Exceed His Statutorily Prescribed 

Authority.

Nothing in the PLRA displaces district courts’ “broad equitable powers to order the 

transfer of inmates to facilities better equipped to provide for their medical needs.” Reaves v. 

Dep’t of Correction, 392 F.Supp.3d 195, 209-10 (D. Mass. 2019) (stay pending appeal denied, 

404 F. Supp. 3d 520) (citing Johnson v. Harris, 479 F. Supp. 333 (S.D.N.Y. 1979) (ordering 

prison to either transfer inmate to facility equipped to provide for his medical needs or to insure 

he is provided with adequate care stemming from prison’s deliberate indifference to inmate’s 

serious medical needs); United States v. Wallen, 177 F. Supp. 2d 455, 458 (D. Md. 2001)

(ordering transfer of pretrial detainee to a hospital since “the Marshal’s Service cannot assure 

this Court that it will provide the medical care that the Constitution mandates so long as he is 

held at MCAC”).

18 This court, accordingly, may—and indeed must—order the transfer of 

prisoners from a facility infected with COVID-19 to another location within the Sheriff’s control 

(where they will remain in the Sheriff’s custody) to ensure that they receive constitutionally 

adequate medical care and are protected from physical harm. Cf. Farmer v. Brennan, 511 U.S. 

825, 847 (1994) (prison official can be liable “for denying humane conditions of confinement” 

where “he knows inmates face a substantial risk of serious harm and disregards that risk by 

failing to take reasonable measures to abate it.”); Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 

2016) (“If a risk from a particular course of medical treatment (or lack thereof) is obvious 

 18 See also, e.g., ABA Standards for Criminal Justice, 23-6.2 (3d ed. 2011) (“A prisoner who 

requires care not available in the correctional facility should be transferred to a hospital or other 

appropriate place for care.”); cf. Murphy v. Lane, 833 F.2d 106 (7th Cir. 1987) (court could consider 

plaintiff’s civil rights claim for retaliatory transfer stemming from prison officials’ transfer of plaintiffs to 

different prison less well-equipped to handle his psychiatric needs).

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enough, a factfinder can infer that a prison official knew about it and disregarded it.”) (citations 

omitted) (emphasis added).

And transfers of detainees are in fact directly contemplated by the Sheriff’s state law 

authority under the County Jail Act, 730 ILCS 125/14, which states:

At any time, in the opinion of the Warden, the lives or health of the prisoners are 

endangered or the security of the penal institution is threatened, to such a degree 

as to render their removal necessary, the Warden may cause an individual 

prisoner or a group of prisoners to be removed to some suitable place within the 

county, or to the jail of some convenient county, where they may be confined 

until they can be safely returned to the place whence they were removed.

Under the County Jail Act, transfer within the county includes to Electronic Home 

Monitoring (EHM), a program that is administered by the Sheriff. As the Sheriff emphasized in 

separate litigation concerning EHM, a case that was recently heard in the Seventh Circuit, it is 

solely within his Office’s discretion whether to place pre-trial individuals in his custody on 

Electronic Monitoring: “Whether a given pretrial defendant is placed in the Sheriff’s EHM 

Program as a condition of bond is a discretionary decision of the Sheriff’s custody of prisoners 

on electronic monitoring.” Br. of Defendant Appellees at 8 (attached as Ex. A), Williams v. Dart, 

Case No. 19-02108 (7th Cir.); see also id. at 7-8 (“The Sheriff’s pretrial EHM Program is not a 

creature of statute—it is his own. Sheriff Dart has discretion to set parameters or guidelines for 

admission into his program. Whether a given pretrial defendant is placed in the Sheriff’s EHM 

Program as a condition of bond is a discretionary decision of the Sheriff’s.”). 

Anyone transferred to the Sheriff’s EHM program as part of the requested relief 

requested by Subclass B would be subject not only to the conditions of that program as 

administered by the Sheriff, but by the strict conditions imposed by the Governor’s emergency 

order, which prohibits non-essential travel and engaging in non-essential business, and mandates 

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everyone in the state to stay at their home or place of residence except when engaging in 

essential activities.19

B. The Requested Relief is Not a Prisoner Release Order.

An order mandating the removal of Subclass B prisoners from the Jail to another location 

in the Sheriff’s custody, including but not limited to EHM, does not constitute a “prisonerrelease order” as envisioned by 18 U.S.C. § 3626(a)(3), and thus does not mandate the 

impaneling of a three-judge panel, for two reasons.

First, the relief does not constitute a prisoner-release order because it does not concern 

prison crowding, which is what the relevant provision of the PLRA was enacted to address. For 

more than two decades, district courts have found that Section 3626(a)(3) does not apply to 

orders remedying violations of federal rights other than overcrowding. In Doe v. Younger, No. 

91-187 (E.D. Ky. Sept. 4, 1996), Op. and Order (attached as Ex. B) at 10-12, the district court 

banned the housing of juveniles for more than 15 days in jail, where conditions were 

unacceptable for children. The court held that this was not a prisoner release order requiring a 

three-judge court under the PLRA, even where it had the effect of reducing the number of 

children in the facility: “[T]he court’s order does not direct the release of any child. It is 

undisputed that counties . . . often house juveniles in need of a secure facility in other counties. 

In fact, such transfers from facilities in one county to facilities in another county or even another 

state are extremely common. Indeed, the Kentucky Juvenile Code specifically contemplates such 

transfers.”

 19 See supra, Executive Order n.5. The applicability of the stay-at-home order to any class 

members transferred within the Sheriff’s jurisdiction is also relevant to the PLRA’s “needs-narrownessintrusiveness” analysis, discussed in Part C, infra.

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In Plata v. Brown, No. C01-1351-TEH, 2013 WL 3200587, at *8-10 (N.D. Cal. June 24, 

2013), the court was faced with the sweeping transmission of coccidioidomycosis, or Valley 

Fever, “an infectious disease caused by inhalation of a fungus,” in certain prisons within the 

California state prison system. Id. at *2. The court granted an exclusionary order for medically 

vulnerable prisoners, rejecting the defendants’ argument that the PLRA barred the requested 

relief unless issued by a three-judge court:

Here, looking at the [PLRA] statute as a whole requires reading the definition of 

“prisoner release order” in conjunction with the requirements for entering one. 

One such requirement is that a three judge court must determine, by clear and 

convincing evidence, that “crowding is the primary cause of the violation of a 

Federal right,” before it can enter a prisoner release order. 18 U.S.C. 

§ 3626(a)(3)(E)(i). Consequently, adopting Defendants’ interpretation of 

“prisoner release order” would mean that a court could only order that prisoners 

be transferred from one prison to another if overcrowding were the primary cause 

of the violation of those prisoners’ rights, and not if any other reason were 

causing the violation. Defendants have failed to point to anything in the 

legislative history that indicates an intent to limit the protection of inmates’ 

constitutional rights in this manner . . . .

Id. at *9; see also Reaves, 404 F. Supp. 3d at 523 (same).

The Plata Court emphasized that “a statute should not be construed to displace courts’ 

traditional equitable powers [a]bsent the clearest command to the contrary.” Id. at * 9 (citing 

Gilmore v. California, 220 F.3d 987, 997 n.12, and Weinberger v. Romero-Barcelo, 456 U.S. 

305, 313 (1982) (“Unless a statute in so many words, or by a necessary and inescapable 

inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be 

recognized and applied.” (quotation marks and citations omitted))). And the PLRA’s legislative 

record indicates that Congress did not intend to limit courts’ ability to move or transfer prisoners 

as a result of other (non-crowding) constitutional violations—including those presented here. See 

Reaves, 404 F. Supp. 3d at 523 (“Accepting Defendants argument would mean that the only way 

a district court can order the release of a prisoner is for a violation of his constitutional rights 

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22

where overcrowding caused the violation, but not if any other reason caused the violation. 

Defendants have failed to present anything in the legislative history which evidences 

Congressional intent to limit the protection of inmates’ constitutional rights in this way—

presumably because there is no such history.”).

In reaching their conclusions that the PLRA did not preclude orders that transferred 

medically vulnerable inmates, both the Doe Court and the Plata Court found the PLRA’s 

legislative history to be consistent with the relief Plaintiffs seek here, because Congress enacted 

the PLRA’s restrictions out of concern with prison population caps. See, e.g., Plata, 2013 WL 

3200587, at *9 (“Sponsors of the PLRA were especially concerned with courts setting 

‘population caps’ and ordering the release of inmates as a sanction for prison administrators’ 

failure to comply with the terms of consent decrees designed to eliminate overcrowding.”) (citing 

Gilmore v. California, 220 F.3d 987, 998 n.14 (9th Cir. 2000)); Doe v. Younger, Ex. B, at 11 

(“After reviewing the substantive provisions concerning prisoner release orders and the 

legislative history underlying this provision of the PLRA, it is clear that the prisoner release 

order provisions are directed at prison caps, i.e., orders directing the release of inmates housed in 

a particular institution once that institution houses more than a specific number of persons. This 

is not that kind of case.”); see also 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of 

Sen. Dole) (attached as Ex. C) (“Perhaps the most pernicious form of micromanagement is the 

so-called prison population cap.... By establishing tough new conditions that a Federal court 

must meet before issuing a prison cap order, this bill will slam-shut the revolving prison door.”); 

Margo Schlanger, Anti-Incarcerative Remedies for Illegal Conditions of Confinement, 6 U. 

Miami Race & Soc. Just. L. Rev. 1, 27-28 (2016) (attached as Ex. D) (collecting congressional 

testimonies and reports identifying federal court-imposed prison population caps as the target of 

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the PLRA). Senators who supported Section 3626’s restrictions did so expressly in response to 

federal court decisions “dictat[ing] prison population size and order[ing] excess prisoners 

released.” 142 Cong. Rec. S10576-02, 1996 WL 522797 (remarks of Sen. Abraham) (attached as 

Ex. E). Indeed, an earlier version of a bill similar to the PLRA made direct reference to this 

purpose. The proposed amendment to Section 3626(a)(2), concerning “any relief whose purpose 

or effect is to reduce or limit the prison population” was specifically titled, “Restrictions on 

Court-Ordered Relief In Prison Overcrowding Cases.” See Judicial Impact Statement, Violent 

Criminal Incarceration Act of 1995, H.R. 667 (June 21, 1995) (attached as Ex. F), at 4.20

Second, the requested relief is not the release of prisoners but only the transfer of those 

class members to another jurisdiction under the Sheriff’s control (i.e., on EHM, as set forth in 

Part A, supra), to remedy an undeniable and growing health crisis. Accordingly, Section 

3626(a)(3) does not apply. See Doe v. Younger, Ex. B, at 12 (“[T]he court’s order does not direct 

the release of any child.”); see also Plata, 2013 WL 3200587, at *8 (prison-release order 

provisions of PLRA did not apply to order granting Plaintiffs’ motion for mass transfer of 

prisoners in response to outbreak of infectious disease in California correctional facilities);

Reaves, 404 F. Supp. 3d at 523 (holding that a three-judge panel was not required for order of 

transfer of quadriplegic prisoner to a non-corrections facility in which he would be treated by a 

physician with training to care for his substantial and numerous medical needs, as remedy for 

defendants’ failure to provide adequate medical care).

 20 If Section 3626 is interpreted to preclude prisoner transfer to address an imminent risk of 

serious illness or death arising from a deadly virus, this provision would also be unconstitutional as 

applied for the same reasons set forth in Section III, supra n.16.

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C. The Relief Requested for Subclass B is Narrowly Drawn, Extends No Further 

than Necessary, and is the Least Intrusive Means Necessary to Address the 

Violations at Stake. 

The relief requested for Subclass B, like the relief requested for the Class as a whole, 

meets the need-narrowness-intrusiveness criteria in Section 3626(a). Because of the gravamen of 

the underlying complaint, which implicates literal matters of life or death, there is a strong fit 

between the violations at stake (the exposure of incarcerated individuals to conditions of 

confinement that threaten their health and safety), see Helling, 509 U.S. at 33, and the requested 

remedy (an order requiring the Sheriff to impose essential safeguards like social distancing and 

medical care or, to transfer prisoners from the physical facility where those conditions exist). See 

Reeves, 404 F.Supp.3d at 524 (transfer order met PLRA’s narrow tailoring requirements where 

inmate would die if he was not moved); cf. Morales Feliciano, 378 F.3d at 54 (“The narrownessneed-intrusiveness criteria are, to some extent, self-explicating . . . . The application of those 

criteria is case-specific and must be undertaken in light of both the magnitude of existing 

constitutional violations and the available alternative remedies.”). As discussed more fully 

above, the Jail is facing a crisis the likes of which has not been seen before. Subclass B members 

have already been exposed and therefore urgently require transfer to a safe place until the 

pandemic is over. District courts (including several in this Circuit) have granted a prisoner’s 

request for preliminary injunctive relief in far less urgent situation circumstances than are facing 

Plaintiffs in this Court.21

 21 See, e.g., Abu-Jamal v. Wetzel, 2017 WL 34700, at *12-20 (M.D. Pa. Jan. 3, 2017) (granting 

preliminary injunction requiring treatment of plaintiff’s Hepatitis C with direct-acting antiviral 

medication such as Harvoni); Norsworthy v. Beard, 87 F.Supp.3d 1164, 1195 (N.D. Cal. 2015) (granting 

preliminary injunction to “provide Plaintiff with access to adequate medical care, including sex 

reassignment surgery”), appeal dismissed as moot and remanded, 802 F.3d 1090 (9th Cir. 2015); Francis 

v. Hammond, 2013 WL 12167887, at *6-7 (W.D. Wash. Mar. 4, 2013) (recommending preliminary 

injunction requiring orthopedic evaluation of plaintiff’s shoulder injury), report and recommendation 

adopted, 2013 WL 12167888 (W.D. Wash. Apr. 10, 2013); McNearney v.Washington Dep’t of Corrs., 

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Finally, because whatever order this Court enters will leave full control and supervisory 

authority of the class members with the Sheriff and his correctional staff, there is little risk that 

the relief would adversely impact the criminal justice system. Compare Turner v. Clelland, 2016 

WL 1069665, *4 (M.D.N.C., Mar. 16, 2016) (citing adverse impact provision in denying relief 

requiring “involving a federal court in the day-to-day administration of a prison”).

CONCLUSION

In summary, Plaintiffs’ requests for injunctive relief under Section 1983 meet the 

PLRA’s need-narrowness-intrusiveness requirements because they seek narrowly drawn 

injunctive relief that extends no further than what is required to correct the significant and 

ongoing constitutional violation. Neither of Plaintiffs’ current requests for Section 1983 

injunctive relief constitutes a prisoner release order and thus the requirements of 18 U.S.C. 

3626(a)(3) do not apply. Given the imminent threat facing the Jail, however, Plaintiffs believe 

 

2013 WL 392490, at *2-3 (W.D. Wash. Jan. 9, 2013) (noting prior order to provide required medical care, 

modifying order to terminate upon the plaintiff’s impending release, which might occur before surgery 

could be performed, to make the order narrowly drawn and least intrusive), report and recommendation 

adopted, 2013 WL 392489 (W.D. Wash. Jan. 31, 2013); Mitts v. Obandina, 2012 WL 4060013, at *2 

(S.D. Ill. Aug. 27, 2012) (granting preliminary injunction to provide prescribed medical care, holding 

order “the least intrusive means to correct the treatment deficiency”), report and recommendation 

adopted, 2012 WL 4059982 (S.D. Ill. Sept. 14, 2012); Chan v. County of Sacramento, 2011 WL 2636262, 

at *4 (E.D. Cal. July 5, 2011) (recommending preliminary injunction requiring defendants to have 

plaintiff examined by an independent dentist competent to perform root canals, permanent fillings, and 

dentures in order to develop and act on a treatment plan, though declining to recommend specific 

procedures); Flynn v. Doyle, 630 F.Supp.2d 987, 993-94 (E.D. Wis. 2009) (preliminarily enjoining 

defendants to submit a plan to ensure that medication is dispensed by persons with credentials equal to 

Licensed Practical Nurses, that they are trained in prison procedures, and that medication orders are 

timely processed and dispensed); Perez v Cate, 2009 WL 440508, at *4-5 (N.D. Cal. Feb. 23, 2009) 

(granting modification of stipulated injunction providing for improved dental care to prohibit the out of 

state transfer of prisoners who require dental care within 120 days; rejecting plaintiff’s proposal to stop 

the transfers entirely pending creation of a revised screening process as not narrowly tailored and least 

intrusive); Farnam v. Walker, 593 F.Supp.2d 1000, 1017-18 (C.D. Ill. 2009) (preliminarily enjoining 

defendants to get the patient to an accredited Cystic Fibrosis Center for examination by a board-certified 

pulmonologist, and implement that specialist’s medical treatment recommendations; specifying treatment 

to be provided pending that examination); see also Plata, 2013 WL 3200587 at *14-15 (directing removal 

of prisoners at risk for Valley Fever from prisons where it was prevalent; relying on expert evidence and 

professional society standards in determining compliance with § 3626).

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that a three-judge panel should be convened in the event that immediate compliance with the 

Constitution is not achieved to protect Class Members from further harm.

Respectfully submitted,

/s/ Sarah Grady

Sarah Grady

Attorney for Plaintiffs

Stephen Weil

Sarah Grady

Loevy & Loevy

311 North Aberdeen St., 3rd Fl.

Chicago, IL 60607

(312) 243-5900

Locke E. Bowman

Alexa A. Van Brunt

Roderick and Solange MacArthur Justice Center

Northwestern Pritzker School of Law

375 East Chicago Ave.

Chicago, IL 60611

(312) 503-0884

Charles Gerstein (pro hac vice application pending)

Alec Karakatsanis (pro hac vice application forthcoming)

Civil Rights Corps

1601 Connecticut Ave NW, Ste. 800

Washington, DC 20009

(202) 894-6128 

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CERTIFICATE OF SERVICE

I, Sarah Grady, an attorney, hereby certify that on April 6, 2020, I caused a copy of the 

foregoing to be filed using the Court’s CM/ECF system, which effected service on all counsel of 

record.

/s/ Sarah Grady

Sarah Grady

Attorney for Plaintiffs

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