IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANTHONY MAYS, et al., )

)

Plaintiffs-Petitioners, )

) Case No. 20-cv-2134

v. )

) The Hon. Matthew F. Kennelly

THOMAS J. DART, Sheriff of Cook ) Emergency Judge

County, )

) The Hon. Robert Gettleman

Defendant-Respondent. ) Presiding Judge

PLAINTIFFS’ RESPONSE TO THE SHERIFF’S MAY 1 STATUS 

REPORT AND REQUEST FOR TARGETED EXPEDITED DISCOVERY

The Sheriff’s May 1 Compliance Report (the “Report”) (Doc. No. 84) describes ongoing 

efforts to comply with the social distancing and other mandates of the Court’s Preliminary 

Injunction (“Order”) (Doc. No. 74) in the context of a still densely populated Jail where

compliance is challenging, if not impossible. The Sheriff candidly admits that, should the Jail’s 

daily admissions increase (as is to be expected in the warmer months) and should the need for 

social distancing continue though the late spring and early summer, compliance with the Order’s 

social distancing requirements will become impossible. Even at the Jail’s current population level, 

the Sheriff acknowledges that the social distancing required by the Order impairs his ability to 

address security emergencies. See Report at 17-18, 20. Specifically, the Sheriff’s report indicates 

that, at the Jail’s current population level, there is no longer sufficient space to separate violent 

detainees from the general population, or to protect vulnerable detainees from the risk of assault.

Plaintiffs recognize that the Sheriff’s staff is working to achieve compliance with the 

requirements of the Order. Nonetheless, the Report makes plain that the Sheriff’s Office has not 

achieved compliance, particularly with respect to coronavirus testing and social distancing. The 

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Report leaves many questions unanswered and underscores that certain vulnerable groups of 

detainees remain at high risk of contracting the coronavirus and of dying from that virus. In fact, 

at least one more detainee has passed away from the virus since the Sheriff filed the Report.

1

 

So that they may fulfill their ongoing responsibilities to the plaintiff class, counsel seek

limited emergency discovery to clarify the extent of the Sheriff’s compliance with the Court’s 

extended preliminary injunction relief, and the degree to which detainees in the Jail are being 

protected from coronavirus.

2

 That requested discovery is attached as Exhibit A and discussed in 

Section II. Good cause for Plaintiff to issue expedited discovery is demonstrated by the narrowness 

of the requests and the urgency of the compliance issues with respect to the preliminary injunction.

Finally, given the compliance issues at stake, the security concerns detailed in the Report, 

and the outstanding risks to the detainees who are not socially distanced in the Jail, Plaintiffs ask 

that the Court consider setting in motion the process for convening a three-judge panel.

I. The Sheriff’s Report Raises Significant Concerns about Failure to Comply with 

the Order and Inability to Protect Detainees.

A. The Sheriff is Failing to Comply with the Order’s Requirement to Conduct 

Coronavirus Testing.

The Court’s Order was very clear in requiring that detainees who fall into two categories 

be tested for the coronavirus: (1) those “who exhibit symptoms consistent with coronavirus 

1 A seventh detainee has just died in the Jail. William Sobczyk was scheduled to have a bond 

reduction hearing this week, seeking release on account of his “advanced cancer that had spread 

throughout his liver, lung, bones and brain.” Jake Griffin, “Arlington Heights Man Awaiting Trial Dies 

from Covid-19 Infection,” The Daily Herald (May 5, 2020), 

https://www.dailyherald.com/news/20200505/arlington-heights-man-awaiting-trial-dies-from-covid-19-

infection. Mr. Sobczyk passed away prior to the hearing. The Sheriff’s Office has not publicly reported 

this death, raising questions about whether other detainees in custody have also died from the virus.

2 Plaintiffs intend to file a corresponding request for discovery before Judge Gettleman, in order to 

obtain information about other compliance issues not raised in this pleading, including as to the Sheriff’s 

distribution of soap, PPE, and implementation of social distancing at intake.

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disease” and (2) those who “have been exposed to others who have exhibited those symptoms or

have tested positive for coronavirus.” See Order at 1. The Court was equally clear that sufficient 

testing materials must be made accessible so that “availability of testing materials” does not drive 

who is tested, how frequently, or when. Id. The Court left to medical judgment the timing of tests 

for asymptomatic persons who may have been exposed to the coronavirus (category 2). But the 

Order does not permit medical professionals under the Sheriff’s control (or anyone else) to veto 

testing for such persons altogether. Indeed, it would be difficult to imagine a medical judgment 

not to test persons potentially exposed to the virus, since the universal advice of public health 

experts is to test as broadly as possible, particularly in congregate settings and among high-risk 

groups, and given that asymptomatic carriers contribute to the spread of the disease.

3

The Sheriff’s Report suggests that he is not complying with the Court’s Order, both as to 

symptomatic and exposed detainees. The Sheriff’s Report appears to say that 1,100 symptomatic 

detainees were tested for coronavirus between March 18 and April 30. See Report, at 2. With 

respect to symptomatic detainees, the Report is silent as to what symptoms trigger a test, whether 

and how symptoms are verified, and by whom. No medical protocols relating to testing have been 

described or produced. The Sheriff’s testing protocols, procedures, and outcomes remain a black 

box. And as Plaintiffs have previously pointed out (see Doc. No. 64 at 34; see also 64-5), detainees 

report being denied testing even though they were symptomatic. The attached declarations 

confirm this is still happening. See Group Ex. D (Detainee Declarations). The Report avoids 

3 See Wilson v. Williams, ___ F. Supp. 3d ____, 2020 WL 1940882, at *1 (N.D. Ohio Apr. 22, 2020) 

(“[F]or some time health officials have known and reported that asymptomatic persons spread the virus. A 

large percentage of coronavirus-infected citizens are asymptomatic. These asymptomatic persons show no, 

or limited, symptoms. Yet, they spread the virus. Due to this threat from infected but asymptomatic 

individuals, testing, tracing and treatment became the first mitigation responsibilities.”); see also Centers 

on Disease Control, Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19), available 

at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-criteria.html (last updated May 3, 2020).

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saying that all symptomatic detainees have been or will be tested—which is what the Order

unambiguously requires.

The Report offers still less clarity with respect to the testing of individuals who may have 

been exposed to the virus. Plaintiffs presume that these persons are being housed on quarantined 

tiers, pursuant to the policies that Director Miller described earlier in this litigation whereby the 

tiers on which a symptomatic or COVID-positive detainee has resided are placed under quarantine. 

See Miller 4/6/20 Dec. ¶ 19 (Doc. No. 30-8). The Sheriff’s most recent tier occupancy chart shows 

that as of May 1, there were 910 quarantined detainees on 47 separate tiers. See Tier Occupancy 

Chart (Ex. K to the Report, Doc. No. 84-12). By definition, and under the Order’s mandate, all of 

these detainees must (at a medically appropriate time) receive a coronavirus test.

The Report makes clear that full quarantine testing has not and will not happen. It states 

that “surveillance testing is conducted within the Jail’s quarantine units.” Report, at 3. But the 

Sheriff tacitly admits that not all detainees in those units receive a test. Instead, “priority is given 

to those quarantined detainees who also have pre-existing conditions that may put them at greater 

risk of infection.” Id. The Sheriff’s updated coronavirus testing policy (Ex. A to the Report, Doc. 

No. 84-2) and the Declaration of Dr. Concetta Mennella (Ex. B to the Report, Doc. No. 84-3) offer 

no explanation—medical or otherwise—for this limitation on testing. The Sheriff’s materials 

provide no information about the extent of testing of exposed, asymptomatic individuals—

including how many detainees on the quarantined tiers have pre-existing conditions and, of those, 

how many have been tested. The Sheriff does not explain the failure to comply with the Order in 

this respect. Nor does he offer any assurance that the availability of testing will be expanded to 

enable surveillance testing of asymptomatic, exposed individuals.

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The requested discovery, in Section II, is designed to address these omissions and to gather 

concrete information about the Sheriff’s compliance with the Order regarding coronavirus testing.

B. The Sheriff’s Housing Assignments Fail to Protect Vulnerable Detainees.

The Sheriff’s Report notes that the Order exempted certain housing areas from the general 

requirement that housing within the Jail be configured so as to enable detainees to maintain six 

feet of separation from all other persons. Order at 2-3. The manner in which the Sheriff is using 

these exemptions puts detainees at unjustifiable risk of illness and imperils their safety. 

Further, with this latest report the Sheriff asks for yet another exception – this time, for 

security. Report at 17-19. He admits he cannot both run a safe jail and protect the health of 

detainees by instituting social distancing. This not only underscores the on-going crisis at the Jail 

but begs the urgent question of whether release of some detainees is a necessary part of the remedy. 

1. The Sheriff Cannot Simultaneously Protect Detainees’ Physical Safety and 

Their Health.

The Sheriff’s Report indicates that the Jail may have too many detainees, or not enough 

space, to institute the social distancing necessary to protect detainees from infection while 

simultaneously protecting detainees from unacceptable risks of physical attack. The Report 

suggests there is insufficient room in the Jail to protect highly vulnerable detainees from the 

general population, and moreover, there is insufficient space to protect general population 

detainees from particularly violent detainees in the jail. 

First, the Report indicates that there are not enough dormitory units to segregate detainees 

who have been identified as being at risk of sexual assault. At the preliminary injunction hearing, 

Director Miller explained that one of the non-isolation, non-quarantine tiers at more than 50% 

capacity was a tier comprised of detainees who had been identified as in need of protection in 

accordance with the Prison Rape Elimination Act (PREA), 34 U.S.C. § 30301, et seq., and 

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applicable standards.4 Plaintiffs presume that these detainees had been determined to be “at high 

risk for sexual victimization” and that each was placed in segregated housing because there was 

“no available alternative means of separation from likely abusers.” 28 C.F.R. § 115.43(a). 

With sufficient space, the detainees on the PREA tier could be placed on two separate tiers 

segregated from the general population. The Sheriff reports that these vulnerable detainees have 

instead been reassigned to “different housing units” where, though they may practice social 

distancing, it will be “more difficult to guarantee their protection.” Report, at 14. It appears, in 

other words, that in response to the Order, the Sheriff has removed PREA detainees from protective 

custody and dispersed them throughout the Jail, at great risk to their safety. 

This is unacceptable, as Dr. Venters testified in the Preliminary Injunction hearing. See 

Prelim. Injunction Hr’g Tr. (“Hr’g Tr.”) (attached as Ex. B hereto) at 72-73.5 The PREA-identified 

detainees are entitled to protection from sexual assault.6 The Sheriff does not explain why the 

safety of this group of detainees must be sacrificed to enable them to practice social distancing. 

The apparent reason is that there is insufficient room in the Jail to permit the PREA tier residents 

to enjoy both reasonable protection from assault and the opportunity to practice social distancing. 

4 Mr. Miller’s April 17 affidavit indicates that this tier is DIV2-D1-D, which was then at 81% 

capacity with 39 detainees. Miller Decl. (Doc. No. 62-5 ¶ 17)

5 “[T]he whole notion of PREA is that we – because we know that sexual abuse is endemic in many 

correctional settings, that we’re going to create special tools that we all sign on to [] train our staff, to find 

patients or detained people who might be especially vulnerable and to think about how to protect them.... 

I don’t believe that there is any rationale or logic or certainly scientific reason that we should swap one set 

of risks for another, certainly when it comes to social distancing and applying that tool for people who are 

in a housing area for PREA-related concerns.”

6 See Ramos v. Hamblin, 840 F.3d 442, 444 (7th Cir. 2016) (“[A]s the name implies, [PREA]... makes 

the prevention of prison rape a priority concern of prison administrators.”); see also Cook County Sheriff’s 

Office, “Prison Rape Elimination Act Compliance,” https://www.cookcountysheriff.org/cook-countydepartment-of-corrections/prison-rape-elimination-act/ (last visited May 4, 2020).

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In any event, the Order does not entitle the Sheriff to evade his other responsibilities under federal 

law, particularly as they pertain to vulnerable detainees.

Second, the Report indicates that because celled detainees must be housed in single cells

in order to prevent the spread of coronavirus, there are now no available vacant cells in which to 

isolate detainees whose violent behavior requires emergency isolation. See Report at 17-18. 

Indeed, because detainees must now be housed in single-celled units, the Sheriff reports that many 

detainees who “would not otherwise be assigned to a dormitory setting based on their security 

classifications” are nevertheless being assigned there. Id. at 18. That has led to an increasing 

number of security incidents, including in the RTU. Id. at 18-19. 

The Sheriff’s response to this state of affairs is to assert that a new “security exception” to 

the Order is warranted so that he can forego essential preventative medical measures in order to 

control security. Id. at 17-19. Plaintiffs strongly disagree. They seek discovery into current 

conditions, outlined in Section II, to assess the extent to which class members are having their 

health and safety put at risk. But further, the Sheriff’s inability to safely secure the facilities during 

the on-going pandemic weighs in favor of release via a three-judge panel, see Section III, infra,

not additional social distancing exceptions. 

2. The Sheriff is Likely Housing Vulnerable Detainees on Tiers Where Social 

Distancing is Impossible.

The evidence in this case is undisputed that persons who are elderly or who have certain 

pre-existing medical conditions are at elevated risk for contracting the coronavirus. Nor is there 

any dispute that, because of the potentially very serious consequences if persons in this group 

become infected with the virus, these individuals should be afforded every possible protection. 

The Sheriff admits that these individuals must be prioritized for coronavirus testing. Report, at 3 

(“[S]urveillance testing is conducted within the Jail’s quarantine units....Within that population, 

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priority is given to those quarantined detainees who also have preexisting conditions that may put 

them at greater risk of infection.”). But the evidence is also clear that testing alone (a largely 

reactive measure) is insufficient to proactively protect highly-susceptible individuals who remain 

in the Jail. Instead, experts agree that preventative precautions to minimize the risk of infection

are paramount for vulnerable individuals, including ensuring that they are able to practice social 

distancing. Venters Decl. (Doc. No. 64-2) at ¶ 12 (“For vulnerable individuals, social distancing 

and infection control play an even more central role in protecting against severe negative 

outcomes, there is no treatment or cure that has been identified to lessen their greater risk of harm 

after contracting the virus.”); id. at ¶ 25 (“Creating a real-time list of high-risk patients allows 

for....[i]mplementing of active surveillance, special housing arrangements, and other protective 

measures for high-risk patients who are not ill.”); Mohareb Decl. (Doc. No. 64-3) at 2 (“Persons 

who are susceptible to COVID-19 must maintain social distancing from others.”); id. at 5 (“There 

is a strong biological rationale to containing a respiratory viral illness when susceptible populations 

stop gathering around persons who are potentially infected.”).

The Report suggests that the Sheriff knows who the coronavirus-vulnerable detainees are—

or at least who some of them are. See Report at 3. Nonetheless, he admits he has taken no steps 

to formally flag them and to provide them affirmative protections, for example (and to the extent 

they are symptom-free and not positive), instituting infection control measures and housing them 

as a cohort with full opportunity for social distancing, where even incidental contacts are less likely 

to result in infection. See Venters Direct, Hr’g Tr. at 66 (“There also seemed to be a lack of 

process to identify high-risk patients, patients who are at high risk of serious illness and death 

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based on criteria identified by the CDC. And both create surveillance and protection for those 

patients who are at a high risk of serious illness and death.”).7

To the contrary, many coronavirus-vulnerable detainees are currently being housed in 

dormitories that are at greater than 50% capacity, where social distancing is concededly 

impossible. As of May 1, there are four non-isolation, non-quarantine RTU tiers that house 

detainees “with serious medical or mental health conditions” where the population exceeds 50% 

capacity (two of them are at nearly 100% capacity). See Report, at 15; Tier Occupancy Chart 

(Report, Ex. K). The Court acknowledged that in such circumstances, social distancing is 

“practically impossible,” putting the lives of affected detainees at unacceptable risk. Preliminary 

Injunction Mem. Op. (Doc. No. 73) at 63; see also id. (“At the current stage of the pandemic, group 

housing and double celling subject detainees to a heightened, and potentially unreasonable and 

therefore constitutionally unacceptable, risk of contracting and transmitting the coronavirus. Such 

arrangements make it impossible or unduly difficult to maintain social distancing, a ‘cornerstone’ 

of the reduction of coronavirus transmission among detainees.”). Detainee reports confirm social 

distancing is actually impossible in the RTU and other specialty housing areas, including for those 

with medical vulnerabilities. See Group Ex. D.

7 In his testimony, Dr. Venters emphasized that it was the responsibility of jail staff, not just medical 

staff, to ensure the protection of high-risk individuals through implementation of an integrated and proactive 

plan. See Venters Cross, Hr’g Tr. at 99 (“So I didn’t see anything about the identification of high-risk 

patients in the building...and because of that, that identification and the act of surveillance has lots of 

implications for security staff. It’s not just health staff doing it.”); id. at 102 (“And so if 30 or 40 or 50 

percent of the people in the whole setting have risk factors, then the question is how can you get them 

active surveillance. And for some of them, they'll have even more additional risk factors. So it may be that 

there's a gradation of people who have two risk factors or who have multiple serious risk factors might go 

into a cohorted house, but that all takes a plan, and that plan has to be integrated with security because, as 

we’re talking about here, it has profound implications for housing areas, for planning of security staff.”); 

id. (“I haven't seen any policies or procedures about the identification or management of high-risk 

patients.”); id. at 106 (“My experience is in an outbreak...that the health system, and Cermak would fall 

into this, does routinely and should in an outbreak be able to communicate who is high risk and work with 

security staff with an integrated plan to make sure they are in the right housing area that have the right level 

of support, surveillance and infection control.”).

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The Sheriff has yet to explain why those with special medical and/or mental health needs 

(a group that by definition includes coronavirus-vulnerable detainees) should be housed in an 

environment where their risk of becoming infected is enhanced, not minimized. Both Dr. Mohareb 

and Dr. Venters opined that such groups in particular need to be protected during an outbreak, 

including through the implementation of full social distancing and infection control measures.

8

Instead, these detainees continue to be the ones most at risk inside the Jail. Cf. Wilson, 2020 WL 

1940882, at *3, *10-11 (ordering release of subclass of medically vulnerable and elderly prisoners 

who were highly susceptible to COVID-19) (“[W]hile the deteriorating health conditions at Elkton 

pose a danger for each of the 2,400 men who are incarcerated at Elkton, the institution’s inability 

to stop the spread of the virus among the inmates in its care poses an even greater risk for inmates 

whose medical conditions put them at higher risk of death if they contract the virus.”).

3. Dormitory Tiers (and Indeed all Tiers) At Less than 50% Capacity May Not 

Enable Social Distancing Necessary to Protect Against Transmission. 

The Court’s Order concluded that social distancing is feasible, and that detainees suffer no 

constitutional violation, in dormitory settings, so long as they are at less than 50% capacity. Doc. 

No. 73 at 64. But the Report suggests that, as a practical matter, neither may be true.

First, there was evidence presented at the hearing that social distancing in reduced capacity

dormitories is hit or miss, depending on detainees’ compliance. See Miller Cross, Hr’g Tr. at 28.

8

 See Section I(B)(2), supra; see also Venters Cross, Hr’g Tr. at 70-72 (“So it is a complex set of 

housing areas and patients to think about, but it is important to recall that these [are] likely the sickest 

patients in the building before an outbreak starts, and so any infection control measures that are designed 

to save people's lives or stem the tide of an outbreak are really doubly important in these places....There 

are multiple reasons why we cannot ignore a high-risk group like this that we know need to be protected 

especially.”); id. at 105 (“Q. Is there a way to socially distance people with mental health issues while also 

taking into account their possible higher suicide risk? A. Yes. I don't view that – suicide risk is an important 

concern in correctional settings, but to my view, the failure to implement just basic infection control and 

the same types of protections that are happening for everybody else in a facility will drive the suicide risk 

in the opposite direction.”).

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The Report is notable for its failure to specify steps that have been taken to more clearly 

communicate and enforce social distancing requirements within these dormitories as well as in 

other congregate settings. Plaintiffs have become aware of a concerning grievance filed on April 

28 by one of the Sheriff’s correctional officers complaining about the absence of social distancing 

in congregate areas of the Jail. The officer says that his allegations may be corroborated by video. 

See Michael Moore, 4/28/20 Grievance (Ex. C hereto). This report is substantiated by very recent 

reports of detainees, who say that even in reduced capacity dorm settings social distancing is not 

taking place as people still share bathrooms and eating areas and where dorm beds remain less 

than 6 feet apart. See Group Ex. D. 

Thus, the reality behind the Jail walls may be far different than what is portrayed in the 

Report, as evidenced by the Moore grievance and the declarations on behalf of detainees. Social 

distancing may simply not be achievable on those tiers, even where population is below capacity. 

Second, even if there was 100% compliance with the Order’s mandates, expert evidence 

presented in the hearing showed that congregate living without full social distancing (meaning the 

implementation of six feet of distance in all living, sleeping, and security areas), even where tiers 

are at 50% capacity, will not prevent transmission of the disease. See Venters Direct, Hr’g Tr. at 

68-70 (“[W]hen we look at a correctional facility, we really need to look at every physical space 

where staff and detained people are.” (listing all locations in the Jail where people congregate 

beyond sleeping areas and thus recommending “full” social distancing at the Jail)). This has been 

the result at the Jail. 

Miller previously reported that decks are put on quarantine status for 14 days following the 

removal of a person from that deck with symptoms. Miller Decl. (Doc. No. 30-8), ¶ 19. The 

Sheriff’s May 1 tier occupancy chart, however, shows dorm tiers that have been on quarantine 

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status for much longer than 14 days. See Report, Ex. K. For instance, a tier in Division 2, Dorm 

2 (Div2-D2-N) has been on quarantine since April 4, and is not expected to be out of quarantine 

until at least May 14, despite being reported at only 33% capacity. See id. at 2. This is not an 

aberration. The tier chart suggests not only that detainees are contracting the coronavirus while 

on quarantine, thus extending the tier’s quarantine status, but that even reduced capacity dorm 

living does not prevent transmission where full social distancing measures are not in effect. 

This transmission risk is evident not only in dorms, but also in many of the single cell tiers 

throughout the Jail. Despite single-celling, dozens of tiers are on extended quarantine as new cases 

continue to arise. See Report, Ex. K at 1 (10-1C, 10-2D, 11-AG, 11-AJ, 11-BG, 11B-H, 11C-A, 

11-DD, 11-DF), at 2 (Division 11-DG, 11-DH, 11-DJ), at 3 (4-I2, 4-M1, 4-P2, 5-1A, 5-1D, 5-1J, 

5-1L, 5-2H, 6-1A, 6-1D, 6-1J, 6-1K), at 5 (Division 9-1F, 9-1G, 9-1H, 9-2E, 9-2F, 9-3E, 9-3F).

In sum, the transmission of the disease continues unabated even in reduced capacity dorms. 

That informs Plaintiffs’ discovery requests in Section II, and their request for relief in Section III.

II. The Above Compliance and Safety Concerns Demonstrate “Good Cause” For 

Targeted Discovery.

In order to effectively monitor the Sheriff’s compliance with the coronavirus testing and 

social distancing requirements in the Order, Plaintiffs seek narrowly targeted documentary 

discovery, listed in Plaintiffs’ proposed expedited document production request. See Ex. A. 

Parties are entitled to expedited discovery upon a showing of “good cause,” based on the 

“entirety of the record to date and the reasonableness of the request in light of all the surrounding 

circumstances.” Ibarra v. City of Chicago, 816 F. Supp. 2d 541, 554 (N.D. Ill. 2011) (citing cases); 

see also Hard Drive Productions, Inc. v. Doe, 283 F.R.D. 409, 410 (N.D. Ill. 2012) 

(“Good cause may be found where the need for expedited discovery, in consideration of the 

administration of justice, outweighs the prejudice to the responding party.” (citation and marks 

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omitted)). When the discovery request is made in the course of preliminary injunction 

proceedings, the court’s analysis takes into account potential irreparable injury to the moving 

party. See Landwehr v. F.D.I.C., 282 F.R.D. 1, 4 (D.D.C. 2010). 

First, there is no question here that the “surrounding circumstances” are grave. Detainees

are continuing to die, and the evidence amassed in the record thus far suggests that the Sheriff is 

not fully complying with the Court’s Order, and that the existing measures in place are not 

sufficient to protect detainees. Second, Plaintiffs have designed the below discovery to be as 

targeted as possible. As stated above, Plaintiffs intend to seek other forms of compliance discovery 

with the assigned judge in this case. Here, Plaintiffs seek limited discovery only about testing and 

social distancing, the most central remedies of the Court’s Order. Third, Plaintiffs have gathered 

as much publicly available information about the Sheriff’s handling of the coronavirus pandemic

as possible (for instance, by monitoring the Sheriff’s coronavirus website and press releases and 

talking to detainees and their families), but there is no other avenue by which Plaintiffs can obtain 

the remaining essential discovery, below, which is solely in the Sheriff’s custody and control. 

In short, the expedited discovery is necessary for Plaintiffs to track the Sheriff’s 

compliance with the Order and protect class members while the pandemic rages on in the Jail. 

 Discovery About Coronavirus Testing

Plaintiffs seek the following discovery requests regarding the Sheriff’s coronavirus testing 

protocol and procedures, including data about how many tests are actually being administered and 

their results (which is not publicly-available information):

1. Documents sufficient to show daily updates on the number of people in the Jail 

who have been tested for coronavirus (both staff and detainees), and the number of people who 

have tested negative and positive for coronavirus (both staff and detainees). This request includes 

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but is not limited to documents sufficient to show the number of tests provided to individuals 

residing in all tiers designated as being on quarantine, see Ex. K (Doc. No. 84-12), between April 

15 and May 6, 2020, and the results of those tests.

2. Documents sufficient to show the medical protocols and procedures governing 

coronavirus testing in the Jail, including but not limited to how many testing kits are available as 

of the date of these requests, what symptoms result in a detainee being tested, when exposed 

individuals are tested and based on what metrics, whether asymptomatic detainees are ever tested 

and if so, when and based on what metrics, which pre-existing conditions entitle detainees to 

priority in testing (see Report at 3), and how the Jail determines that a detainee is “recovering,” 

including, for instance, whether detainees are given tests to ensure their negative status.9

3. Documents sufficient to identify (by name and age) each individual who died as 

a result of coronavirus contacted while in the Sheriff’s custody, whether or not the individual was 

formally in custody at the time of death.

Discovery about Social Distancing and Vulnerability

Plaintiffs seek the following discovery concerning whom the Sheriff is exempting from the 

Court’s social distancing requirements and why, the location and designation of individuals in the 

Jail who are most vulnerable to coronavirus (and who are also Plaintiff class members), and video 

evidence of the tiers to assess how social distancing is being implemented in the Jail: 

9 The Sheriff’s use of the term “recovering” to designate detainees who are supposedly coronavirus

negative is opaque. After reviewing the Sheriff’s response to coronavirus, Dr. Amir Mohareb declared that 

“the term ‘medically recovered’ is ambiguous since it can mean either (1) the alleviation of symptoms and 

clinical resolution of disease in an individual or (2) the inability for a person with COVID-19 to transmit 

the virus and infect others. The determination of when a COVID-19 patient is unable to transmit the virus 

and infect others is complex because of the limited data on this issue. In most settings, patients with COVID19 are considered to be unable to transmit the infection only several days following the resolution of 

symptoms and with a negative nasopharyngeal SARS-CoV-2 PCR test.” Mohareb Decl. (Doc. No. 64-3) at 

6. There is no indication in the Sheriff’s Response or supporting documentation that recovering detainees 

are receiving tests to verify their status. 

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1. Documents identifying every person currently housed in the RTU (Division 8) and 

within Cermak Hospital. This list should include, at least, each person’s name, age, booking 

number, bond status/amount, housing location, and their medical designation, as used by the 

Sheriff in his Report (i.e., M3, M4, P3, and P4, see Report at 15-16).

2. Documents sufficient to show biweekly updates to the Sheriff’s Tier Occupancy 

Report (Ex. K), Doc. 84-12, including:

a. A list of tier and occupancy information including, but not limited to, Division, 

Facility, Tier, Capacity, Occupancy, Percent Occupied, Tier Type, 

Quarantine/Isolation status, First Quarantine, and Projected Quarantine End Date;

b. The location(s) (divisions and tiers) of people who are assigned to “PREA” housing 

in the Jail, as well as the capacity and occupancy information for those locations.

10

3. For any detainee who the Sheriff claims is not subject to the Order’s prohibition 

on group housing (e.g., dormitory housing above 50% capacity) and double celling, please 

provide any and all documentation that exists in support of this contention, separately for each 

such detainee. This request includes anyone the Sheriff contends presents “a risk of suicide or 

self-harm,” as well as anyone housed in a unit “equipped for medical or mental health treatment” 

AND where there is “not available space in an appropriate housing or medical unit that permits 

full social distancing.” Order at 3. The requested documentation includes, but may not be limited 

to, each applicable detainee’s current location (division and tier) within the Jail, whether that tier 

is a special medical or mental health unit, medical and Jail records sufficient to show why the 

detainee presents a risk of suicide or self-harm (i.e., diagnosis information or information 

10 Plaintiffs agree that this information should be produced and maintained as attorneys’ eyes only.

Case: 1:20-cv-02134 Document #: 85 Filed: 05/06/20 Page 15 of 19 PageID #:2605
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contained on a detainee’s health “problem list”),

11 and information sufficient to show that there 

is no available space in an appropriate housing or medical unit that would permit social distancing

per the Court’s Order. 

4. Closed Circuit (CCTV) footage12 of the following tiers, captured between 8 a.m. 

and 6 p.m. on May 1, 2020:

a. Division 10, 1C

b. Division 11, DF: Quarantine

c. Division 2, D3, EE

d. Division 4, N2

e. Division 5, 2B

f. Division 6, 1A: Quarantine

g. Division 8, 2N

h. Division 8, 2F (RTU): Quarantine

i. Division 8, 4H (RTU)

j. Division 8, 2S (Cermak)

k. Division 9, 2A

Plaintiffs also seek leave to issue a third-party subpoena to Cook County Health, in order 

to ascertain which detainees have pre-existing or chronic conditions that render them particularly 

susceptible to coronavirus. Plaintiffs originally sought this information from the Sheriff, see Doc. 

11 Plaintiffs are of course amenable to the entry of a HIPAA protective order in this case, to guard 

against the dissemination and protect the privacy of the requested health records.

12 In order to streamline discovery and mitigate the burden on the Sheriff, Plaintiffs seek CCTV 

footage, which Plaintiffs understand is digitally available, in lieu of an inspection at this point in the 

litigation. For the CCTV requests, Plaintiffs identified a representative set of tiers, on both quarantine and 

non-quarantine status. 

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No. 55-1, RFP. No. 1, prior to learning that the Sheriff does not maintain information about which 

detainees in his custody are medically vulnerable. 

III. Where Social Distancing Is Not Feasible, the Court Should Request That a 

Three-Judge Panel Be Convened.

The Sheriff states there is a “feasibility limit” on compliance with the social distancing 

requirement in the Order. Report at 19-20. The Report is crystal clear that a meaningful increase 

in the Jail’s population will make the present arrangements—where most dormitories are below 

50% capacity and almost all detainees are in single cells—an impossibility. See id. at 20 (“A 

sudden spike in the Jail population in the near term would upend the delicately balanced housing 

arrangements currently in place, and there are few alternatives left that would allow the Jail to 

operate effectively and still permit ‘full’ social distancing throughout the Jail.”). He admits that

in this scenario he is likely unable to both preserve order and protect detainees’ health. Id. at 20 

(“The Sheriff’s overriding obligation to preserve order, maintain discipline, and provide security 

at the Jail may very well have to be balanced directly against his obligation to reasonably abate 

the risk of harm from coronavirus.”). And in fact, the Sheriff may have already reached his 

feasibility limit. As Plaintiffs note above, the Sheriff’s implementation of the Order appears to 

have sacrificed the safety of detainees because of existing space limitations. See id. at 17-18. 

Plaintiffs have argued in several of their earlier briefs that when social distancing—which 

this court’s Order confirms is necessary to protect detainees from a serious and unreasonable risk 

of harm—becomes impossible, the appropriate remedy is release of some detainees, beginning 

with the medically vulnerable. Whether to release detainees is a decision that must be made by a 

three-judge court. 18 U.S.C. § 3626(a)(3). In light of the Sheriff’s expressed concerns about 

feasibility, the security breakdowns that have already occurred, including among the vulnerable, 

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and the Sheriff’s failure to implement effective distancing thus far, Plaintiffs again ask the court 

to request that a three-judge panel be convened pursuant to 28 U.S.C. § 2284.

CONCLUSION

So that Plaintiffs’ counsel may fulfill their obligation to monitor compliance with the 

Court’s critically important Order, and seek additional relief as necessary to protect the lives of 

the class members, there is “good cause” for Plaintiff to issue the targeted document discovery 

attached as Ex. A hereto. Plaintiffs further ask that the Court request that a three-judge court be 

convened to consider whether a prisoner release order should be entered.

Respectfully submitted,

/s/ Alexa Van Brunt 

Locke E. Bowman

Alexa A. Van Brunt

Ro MacArthur Justice Center

Northwestern Pritzker School of Law

375 E. Chicago Avenue, Chicago, IL 60611

Tel: 312-503-0884

l-bowman@law.northwestern.edu

a-vanbrunt@law.northwestern.edu

Sarah C. Grady

Stephen H. Weil

LOEVY & LOEVY

311 N. Aberdeen Street, #3

Chicago, IL 60607

Tel: 312-243-5900

Fax:312-243-5902

weil@loevy.com

sarah@loevy.com

Charles Gerstein

Alec Karakatsanis

Civil Rights Corps

1601 Connecticut Ave NW, Suite 800

Washington, DC 20009

charlie@civilrightscorps.org

alec@civilrightscorps.org

Tel: 202-894-6128

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Steve Grimes

Thomas F. McAndrew

Winston & Strawn LLP

35 W. Wacker Drive

Chicago, IL 60601-9703

Tel: (312) 558-8317

SGrimes@winston.com

TMcAndrew@winston.com

CERTIFICATE OF SERVICE

I, Alexa Van Brunt, an attorney, hereby certify that on May 6, 2020, I caused a copy of 

the foregoing to be filed using the Court’s CM/ECF system and served upon all counsel who 

have filed appearances in the above-captioned matter.

/s/ Alexa A. Van Brunt

Alexa A. Van Brunt

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