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, )

)

vs. ) Case No. 20 C 2134

)

THOMAS DART, )

)

Defendant-Respondent. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:1

Anthony Mays and Kenneth Foster, both of whom are detained at Cook County 

Jail while awaiting trial on criminal charges, have sued Cook County Sheriff Thomas 

Dart, who operates the Jail, on behalf of a class of similarly situated persons. Mays and 

Foster allege the Sheriff has violated the constitutional rights of persons detained at the 

jail by failing to provide them with reasonably safe living conditions in the face of the 

current coronavirus pandemic. They assert claims under 42 U.S.C. § 1983 and for writs 

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

On April 9, 2020, the Court granted the plaintiffs' motion for a temporary 

 1 Judge Kennelly is addressing this matter as emergency judge pursuant to paragraph 

5 of Second Amended General Order 20-0012.

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restraining order in part. The Court directed the Sheriff to: (1) establish and implement, 

within two days' time, a policy requiring prompt coronavirus testing of detained persons 

with symptoms consistent with coronavirus disease; (2) within two days' time, eliminate 

the use of "bullpens" to hold groups of new detainees during the intake process; (3) 

begin to provide inmates and staff, within one day, soap and/or hand sanitizer sufficient 

to enable them to frequently clean their hands, and sanitation supplies sufficient to 

enable them to regularly sanitize surfaces in areas used in common; (4) establish and 

carry out, within two days' time, a policy requiring sanitation of all such surfaces 

between each use; and (5) within three days' time, distribute facemasks to all detained 

persons quarantined due to their exposure to a person exhibiting symptoms consistent 

with coronavirus disease. The Court overruled the plaintiffs' request for additional 

temporary relief, including a mandate for implementation of "social distancing" 

throughout the Jail and to provide facemasks to every detained person. The Court also 

concluded that the plaintiffs seeking habeas corpus relief had failed to exhaust available 

state court remedies.

The plaintiffs have now moved for entry of a preliminary injunction and other 

relief. They again seek writs of habeas corpus, based on newly discovered facts that 

they contend provide a basis to excuse their failure to exhaust state court remedies. 

They also seek conversion of the temporary restraining order to a preliminary injunction, 

and they again request an order requiring implementation of social distancing 

throughout the Jail, as well as transfer of detained persons from the Jail to other 

locations within the Sheriff's control, including electronic home monitoring. The plaintiffs 

also request the convening of a three-judge court under the Prison Litigation Reform Act 

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to consider entering a "prisoner release order" within the meaning of that statute.

For the reasons stated below, the Court converts the terms of the temporary 

restraining order to a preliminary injunction and enters further preliminary injunctive 

relief regarding social distancing but denies the plaintiffs' other requests for relief.

Factual Background

The following discussion of relevant facts concerning coronavirus, the Cook 

County Jail facilities, and the parties' claims and defenses is taken from undisputed 

facts, the affidavits and documentary evidence submitted by the parties, and the 

testimony and exhibits offered at the evidentiary hearing held on April 23, 2020. 

A. The coronavirus pandemic

The rapid global spread of the novel coronavirus has led to a pandemic of 

extraordinary scale. The Court's decision on the plaintiffs' motion for a temporary 

restraining order includes a discussion of the gravity of the public health threat 

associated with this virus. Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *2 (N.D. 

Ill. Apr. 9, 2020).

Symptoms of the disease caused by the novel coronavirus—what has come to 

be known as COVID-19, which the Court will refer to as coronavirus disease—include 

fever, cough, and shortness of breath, and the health effects can be very severe, 

including serious damage to the lungs and other internal organs, and death. People 

who are sixty-five years of age or older and those with certain pre-existing health 

conditions, including chronic lung disease, moderate to severe asthma, serious heart 

conditions, diabetes, chronic kidney disease, liver disease, a body mass index of forty 

or higher, and other conditions have a heightened vulnerability to severe illness if they 

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contract the coronavirus. 

The rapid transmission of coronavirus has been attributed to several 

characteristics. Respiratory droplets containing the virus emitted by an infected person, 

though coughing or sneezing for example, can travel several feet and may persist in the 

air for several hours. In addition, because the virus can persist on some surfaces for up 

to three days, transmission can occur even without physical proximity to an infected 

person. Moreover, those who contract the virus may be asymptomatic for days or even 

for the entire duration of the infection but can still transmit the virus to others, making it 

more challenging to readily identify infected individuals and respond with necessary 

precautions. 

There is currently no known effective treatment for coronavirus disease and no 

vaccine to prevent people from contracting it. Medical professionals and public health 

experts agree—and the evidence in this case demonstrates beyond peradventure—that 

the only way to curb the spread of the virus is through a multi-faceted strategy that 

includes testing to identify those who have been infected; isolation of those who test 

positive or develop symptoms consistent with the disease; quarantining those who may 

have come into contact with the virus; frequent sanitation of surfaces; frequent

handwashing; and use of personal protective equipment (PPE) such as facemasks. 

And a key tactic recommended by public health experts to curb the spread of 

coronavirus disease has been to keep people apart from each other—what has come to 

be known as "social distancing." The Centers for Disease Control's Interim Guidance 

on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and 

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Detention Facilities ("CDC Guidelines"),2 defines social distancing as "the practice of 

increasing the space between individuals and decreasing the frequency of contact to 

reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all 

individuals, even those who are asymptomatic)." Id. at 4. 

Social distancing has effectively been mandated by most state governments as a 

critical strategy in combatting the pandemic. Here in Illinois, the state has been under a 

statewide stay-at-home order first imposed by Governor J.B. Pritzker effective March 

20, 2020, the goal of which is to limit person-to-person contacts to curb transmission of 

the virus. Activities not deemed "essential" have been shut down. People have been 

strongly urged, and in many situations directed (by governments, employers, 

commercial establishments, and so on) to maintain space between themselves and 

others. In addition, the wearing of PPE, primarily facemasks, has been strongly advised 

and now required in some situations, particularly when people may come into contact 

with others.

The effect of the stay-at-home orders imposed in Illinois and most other states, 

along with advice by national officials to limit contacts and group activities, has been 

dramatic: schools have been closed; commercial establishments and workplaces have 

ceased operations, resulting in massive job losses; public events have largely been 

cancelled; and access to public spaces has been limited or barred entirely. Entire 

sectors of the national economy have slowed to a snail's pace. Society has paid a very 

high price to curb the spread of this highly contagious virus.

 2 The Guidelines were issued on March 23, 2020 and are available at 

https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf.

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B. Operation of the Cook County Jail

The Sheriff runs the Cook County Jail. As the Court stated in its written decision 

on the plaintiffs' motion for a temporary restraining order (TRO), the Jail is "a very large 

physical facility—actually a campus of separate physical facilities—whose population, if 

one considers including both detainees and staff, is the size of a small (but not all that 

small) town." Mays, 2020 WL 1812381, at *1. Managing the Jail is extraordinarily 

challenging because of the size of its population and physical facilities, the diverse 

needs of the detainees, the Sheriff's public safety obligations, and his obligations to the 

criminal justice system. The Sheriff's public safety obligations require him to consider 

the appropriate custodial conditions for each detained person. As the Court has noted,

the Jail's population "runs the gamut from persons with lengthy criminal records who are 

accused of committing violent crimes to non-violent offenders in custody for the first 

time who, perhaps, remain in custody only because they and their families were unable 

to post bond money." Id. And the Sheriff's obligations to the people in his custody, 

most of whom are detained awaiting trial on crimes for which they are therefore entitled 

to a presumption of innocence, require him to provide care sufficient to account for each 

individual's physical and mental health conditions. This is no small task, particularly 

given that populations in custody are statistically more likely to have adverse health 

conditions, both physical and mental.

Adding an infectious disease outbreak to these conditions further complicates the 

difficult challenge of managing the Jail. The very nature of the Jail's setup and day-today operations facilitates rapid transmission of communicable diseases like the one 

caused by the coronavirus. First, the Jail's physical facilities are designed to 

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accommodate large populations, all densely housed, and many in congregate settings. 

In particular, the Jail has many so-called "dormitory" units, which in normal times may 

house as many as hundreds of detained persons in a single room with closely-spaced 

bunk beds. 

Second, the Jail is a closed environment with many spaces used in common. 

Persons detained there—even those housed in single-occupancy cells—do not have 

individual bathing facilities; toilets are typically used in common; they eat in groups 

under normal circumstances; and they come into contact with each other and with 

correctional officers in other common areas. And even when confined, detainees are in 

close proximity, in adjoining cells and in tiers that use a common ventilation system. 

Third, the routine operations of the Jail require high levels of movement of 

people. Detained persons must be escorted from their cells to common areas like 

shower and bathroom facilities. In normal times they are escorted to court hearings and 

recreational areas (all or nearly all of which have come to a stop). Finally, large 

numbers of staff personnel, as well as vendors, move in and out of the Jail and its 

various areas on a daily basis. In doing so, these individuals have contact with other 

members of the community at large, who themselves may have contracted coronavirus. 

Thus staff members and contractors potentially can carry the virus both into and out of 

the Jail.

Limiting exposure to the coronavirus in the Jail is therefore a significant 

challenge. Infection rate data reflects that it has been challenging to effectively curb 

transmission of the highly infectious coronavirus in the setting of the Jail. As of April 6, 

2020, the infection rate within the Jail was an order of magnitude higher than the rate of 

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infection in Cook County. Mays, 2020 WL 1812381, at *8. And on April 8, 2019, the 

New York Times reported that, at that time, the Jail was the largest-known source of 

coronavirus infections in the United States. See Timothy Williams and Danielle Ivory, 

Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars (April 8, 2020), N.Y. 

Times, https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html (last updated April 23, 2020).

Procedural History

A. Plaintiffs' suit and motion for a temporary restraining order

The plaintiffs, Anthony Mays and Kenneth Foster, are detained at the Cook 

County Jail and have been housed on tiers in which at least one person had been 

infected with the coronavirus. On April 3, 2020, they sued the Sheriff on behalf of 

themselves and others similarly situated, with allegations stemming from the risks the 

coronavirus poses to their health. The plaintiffs seek to represent a class and two 

putative subclasses. The class consists of "all people who are currently or who will in 

the future be housed in the Cook County Jail for the duration of the COVID-19 

pandemic." Compl. (dkt. no. 1) ¶ 60. "Subclass A consists of all people who, because 

of age or previous medical conditions, are at particularly grave risk of harm from 

COVID-19." Id. ¶ 61. "Subclass B consists of all people who are currently housed on a 

tier where someone already tested positive for the coronavirus." Id. ¶ 62. Mays and 

Foster both have medical conditions that heighten their risk of serious health 

consequences from an infection by the coronavirus. 

In their complaint, the plaintiffs alleged that because the Sheriff was not 

implementing measures to control the spread of the coronavirus at the Jail, especially 

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those recommended in the CDC Guidelines, the conditions in the Jail facilitated rapid 

transmission, putting the health of detained persons at great risk. In support of this 

contention, the plaintiffs attached several affidavits to their complaint from individuals 

who had spoken to persons detained at the jail. These affidavits reported the following 

conditions at the Jail in late March and early April:

• detained persons were not receiving soap, hand sanitizer, or facemasks;

• facemasks that they made for themselves out of cloth were being confiscated;

• detainees were being housed in bunks or beds that were between two and 

four feet apart from each other;

• many detained persons were living in dormitory-style housing, where dozens

of individuals shared a single room;

• detained persons were being held at intake in so-called bullpens, where 

numerous detainees were held together for extended periods in a crowded 

cell; and

• the Jail's staff was not regularly sanitizing common surfaces or providing 

detainees with cleaning supplies to do this themselves. 

The day they filed suit, the plaintiffs moved for the issuance of writs of habeas 

corpus for the members of subclass A and for a TRO or preliminary injunction on behalf 

of the class as a whole, requiring the Sheriff to take action to control the rapid spread of 

the coronavirus at the Jail. The plaintiffs also moved to certify their proposed class and 

subclasses. 

After an extended hearing on the motion for a temporary restraining order, the 

Court issued a written decision on April 9, 2020 denying the request for writs of habeas 

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corpus and partially, but not entirely, granting the motion for a TRO. Mays, 2020 WL 

1812381, at *6, 14–16. In ruling on this motion, the Court considered the affidavits from 

medical experts, individuals who had spoken to detainees, and those from Jail officials 

and employees. The Sheriff had raised a hearsay objection to the Court's consideration 

of the affidavits from individuals who had spoken to detainees, but hearsay may be 

considered in ruling on a motion for a TRO or for a preliminary injunction. See SEC v. 

Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991).3 The TRO directed the Sheriff to take the 

following actions: (1) establish and implement a policy requiring prompt testing of 

symptomatic detainees, and—if medically appropriate and feasible based on the 

availability of testing materials—detainees who may have been exposed to the virus; 

(2) implement social distancing during intake and suspend the use of bullpens to hold 

detained persons awaiting intake; (3) provide all detained persons with adequate soap 

or sanitizer for hand hygiene; (4) provide staff personnel and detained persons with 

adequate cleaning supplies to regularly sanitize surfaces and objects, including in hightraffic areas such as shower facilities; (5) establish a policy requiring frequent sanitation 

of these areas; and (6) provide facemasks to all detained persons in quarantine. Mays, 

2020 WL 1812381, at *14–15. 

The Court denied several of the plaintiffs' requests for relief. They sought an 

order mandating social distancing throughout the facility, not just at intake, arguing that 

 3 "Given its temporary nature, 'a preliminary injunction is customarily granted on the 

basis of procedures that are less formal and evidence that is less complete than in a 

trial on the merits.'" FTC v. Lifewatch Inc., 176 F. Supp. 3d 757, 761 (N.D. Ill. 2016) 

(quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). The same, of course, 

is true of a TRO.

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this was one of the critical outbreak control measures outlined in the CDC Guidelines. 

Id. at *10. The Court declined to mandate social distancing beyond intake, reasoning 

that there are space constraints at the Jail and the Guidelines expressly recognized that 

social distancing may not be feasible in a correctional facility. Id. The Court also 

declined the plaintiffs' request for direct screening of medically vulnerable detainees 

before they show symptoms of infection, also because the CDC Guidelines did not 

mandate this. Id. In addition, the Court denied the plaintiffs' request to require the 

Sheriff issue facemasks to every detained person, as the CDC Guidelines 

recommended this only for those who had come into contact with a symptomatic 

individual. Id. at *12, 15. Finally, the Court declined the plaintiffs' request to transfer the 

members of subclass B to a safe facility or other forms of custody, because the plaintiffs 

had failed to show that the other protective measures that the Court had ordered would 

be inadequate to protect detained persons from the health risks associated with the 

coronavirus outbreak. Id. at *15. The Court also declined subclass A's request for 

emergency writs of habeas corpus, concluding that they had failed to exhaust available 

state court remedies. Id. at *6. 

B. The Sheriff's response and current conditions at the Jail

1. April 13 status report

On April 13, pursuant to the Court's direction, the Sheriff filed a status report

regarding compliance with the TRO. First, with respect to the directive to test 

symptomatic detainees, the Sheriff reported that Cermak Health Services, an arm of 

Cook County that provides healthcare to persons detained at the Jail, maintains the 

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supplies for medical testing and actually administers such tests.4 According to the 

Sheriff, Cermak had determined that it would not be medically appropriate to test all 

detained persons in quarantine. The Sheriff therefore instructed his personnel to isolate 

and refer symptomatic detainees to Cermak for further evaluation and testing. 

As to the order to maintain social distancing during the Jail's intake process, the 

Sheriff implemented a modified procedure that maintains six feet of distance between all 

detained persons awaiting intake and provides them with facemasks. Use of the 

bullpens was discontinued.

Regarding the order to distribute facemasks, the Sheriff stated that he had 

acquired and on hand sufficient surgical masks to distribute to all quarantined detainees 

and employees and that he was continuing his efforts to obtain additional masks. 

Additionally, the Sheriff was in the process of procuring cloth masks that would be 

available to any detained person who requested one. 

The Sheriff further reported that on April 9, he delivered approximately 28 gallons 

of hand sanitizer and 980 bars of soap for distribution in the Jail. He also ordered 

distribution of soap and sanitizer twice per week going forward. The Sheriff noted 

concern that some detained persons may use the soap or hand sanitizer as a weapon 

and that some might try to consume hand sanitizer. These considerations required the 

Sheriff to determine on a detainee-by-detainee basis whether to distribute hand 

sanitizer or soap.

With respect to the sanitation-related directives in the TRO, the Sheriff reported 

 4 From a chain-of-command standpoint, Cermak is under the control of Cook County, 

not the Sheriff.

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that he had distributed cleaning supplies to staff and detained persons on April 10. He 

also issued a sanitation policy to ensure that frequently touched areas such as 

doorknobs and phones are sanitized between uses. He issued another a policy 

requiring each living unit officer to ensure that surfaces are routinely cleaned and 

sanitized during the officer's shift. Additionally, the Sheriff stated that he was planning 

to hire an independent contractor to professionally clean the Jail.

2. April 17 updates from the Sheriff

On April 17, three days after the Sheriff submitted his status report, officials from 

the Chicago Department of Public Health (CDPH), including one designated as a CDC 

epidemic intelligence service officer, inspected the Jail. These officials had toured the 

Jail roughly a month prior, on March 20, and issued recommendations for controlling 

COVID-19 at the Jail. A report from this inspection, dated March 27, was introduced in 

connection with the preliminary injunction hearing held on April 23. The March 27 

recommendations from the CDPH included screening and classifying inmates based on 

their level of risk associated with coronavirus disease and "considering mass release of 

inmates to decompress the jail for urgent public health reasons." Levin Dec. (dkt. no. 

70) at 10. 

A report from the more recent April 17 had not yet been received by the Sheriff 

as of the April 23 hearing. The Sheriff therefore submitted statements and testimony 

from two Jail officials who participated in the April site visit: Rebecca Levin, a senior 

public health advisor to the Sheriff, and Michael Miller, the Executive Director of the 

Cook County Department of Corrections. Levin stated that during the April 17 

inspection, the officials commended the Jail's efforts to reduce density in housing units. 

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Miller testified that the officials visited two of the dormitory units—Dorm 4, the largest 

dormitory unit, and Dorm 2—and commented positively about the organization and 

cleanliness of these spaces. 

In a declaration dated April 17, Miller also provided an update to the Sheriff's 

April 14 status report on efforts to control the coronavirus outbreak at the Jail. He 

reported that each person detained in a quarantine tier was receiving a new surgicaltype facemask each day. Miller anticipated that at its current rate of consumption of 

masks, the Sheriff would exhaust his supplies on June 7, 2020. He added that, "as 

supplies permit," the Sheriff planned to distribute masks to detainees who are not on 

quarantine tiers. Miller Dec., Def.'s Resp. to Renewed Mot. for Prelim. Inj., Ex. E (dkt. 

no. 62-5) ¶ 24.

Although the TRO did not require the Sheriff to implement social distancing 

beyond modifying his intake procedures, Miller reported in his April 17 affidavit that the 

Sheriff had engaged in a significant effort to increase social distancing at the Jail. 

Specifically, he reported the following measures: opening previously closed divisions to 

better distribute detainees across available space; converting housing on 175 tiers to 

single-occupancy cells only; limiting dormitory units to fifty percent of capacity, with the 

exception of detainees in medical or "restricted housing," id. ¶ 12; and limiting the 

number of detained persons released into dayroom common areas to half the number 

assigned to that area. He reported that beds in dormitory units have been spaced so 

that they are at least six feet apart, and if beds are bolted to the floor, then detained 

persons are distributed so that there is six feet of distance between occupied beds. 

Attached to Miller's declaration was a spreadsheet with the occupancy rates as of 

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April 17 on each tier of the Jail, including units in Cermak and Division 8, the Residential 

Treatment Unit (RTU). Miller later explained that the RTU provides twenty-four-hour

access to medical care and houses people who have medical needs (though the level of 

need was not described). This spreadsheet showed, apparently contrary to the 

statement in Miller's declaration, that some dormitory units were still occupied above 

fifty percent capacity. For example, Tier D of Dorm 1 in Division 2, which was not then 

under quarantine, was occupied at eighty-one percent capacity. In addition, many 

dormitory units in the RTU, Division 8, were occupied at nearly full capacity. For 

example, Tier 2F was occupied at ninety-seven percent capacity, and Tier 2G was 

occupied at one hundred percent capacity. (Also, Tiers 2Q and 2R in Division 6 were 

occupied at sixty percent and sixty-three percent capacity, respectively. They are not 

labeled as dormitory units in the spreadsheet, but they each have a forty-person 

capacity.)

The Sheriff submitted additional evidence reflecting that his ability to implement 

social distancing had increased by virtue of, among other things, a significant expansion

of the electronic home monitoring program. He offered a chart showing a steady 

decline in the Jail's daily population over the previous month, including a reduction of 

roughly 230 detainees between April 9, when the Court issued the TRO, and April 17. 

Another chart showed a steady increase in the jail's electronic home monitoring 

population over the previous month, with an increase of approximately 300 detainees on 

electronic home monitoring between April 9 and April 17. The Sheriff also offered 

evidence, however, that utilization of this program had been extended to its outside 

limits, or nearly so, in light of the apparent exhaustion of program vendor's supply of 

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monitoring equipment. 

3. Plaintiffs' reports regarding conditions at the Jail

In anticipation of the preliminary injunction hearing, the plaintiffs submitted a 

number of affidavits identifying problems or deficiencies in the Sheriff's compliance with 

the directives in the TRO. These affidavits were from individuals who had spoken to 

detained persons between April 14 and April 18, and they described these persons' 

current experiences at the Jail. According to these affidavits, symptomatic individuals 

are not being tested. Additionally, although facemasks are now being distributed, 

detainees reported, it is not happening regularly.

The detained persons discussed in the affidavits also reported inadequacies in 

cleaning and sanitation practices at the Jail. Several stated that detained persons lack 

cleaning supplies for their individual cells and that some common spaces lack cleaning 

supplies as well. And even where cleaning solution is available, they reported, cloths or 

wipes have not been provided to enable use of the solution. A number of detainees 

also reported that commonly used objects, such as telephones, are not being sanitized 

between uses. In addition, they stated, the Jail's staff has not been cleaning cells, and 

some common areas are cleaned only every other day, meaning they stand uncleaned 

despite multiple uses and repeated touching by numerous detained persons and 

potentially staff personnel.

The detainees also reported an inability or great difficulty in practicing social 

distancing. In common areas where detained persons eat, several stated, it has been 

impossible to practice social distancing due to the arrangement of picnic-style benches. 

Tape or paint markings have been placed on the floor in some dayrooms to designate 

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appropriate space for social distancing, but, they reported, some correctional officers 

have mocked the practice of social distancing, and many have failed to enforce it. By 

way of example, detained persons have been using, at the same time, telephones that 

are spaced only two feet apart. 

C. The renewed preliminary injunction motion

In their renewed motion for a preliminary injunction, filed on April 14, 2020, the 

plaintiffs contend that the Sheriff's efforts in response to the TRO "have not worked and 

cannot work to abate the spread of the disease" caused by the coronavirus. Pls.' 

Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 4. The plaintiffs focus primarily on two 

inadequacies of the Sheriff's efforts to date: failure to identify and transfer medically 

vulnerable detainees out of the Jail, and insufficient social distancing, which, the 

plaintiffs contend, "is the only way to prevent intolerable risk to [their] health and lives." 

Id. at 2. 

The plaintiffs request the following in their renewed motion for a preliminary 

injunction. First, they ask for a preliminary injunction ordering the Sheriff to mandate 

social distancing throughout the Jail. In support of this request, the plaintiffs have 

submitted the declaration of Dr. Gregg Gonsalves, an epidemiologist at the Yale School 

of Medicine and School of Public Health, who opined that social distancing is "the only 

way to prevent further, essentially uncontrolled, spread of the virus" in the Jail. Id., Ex. 

G (dkt. no. 55-7) ¶ 29. In the alternative, the plaintiffs argue that if the Court concludes 

that additional social distancing is not possible, an order should be entered requiring the 

Sheriff to transfer detained persons to another safe facility, or the Court should request 

convening a three-judge panel with the authority to order the release of detainees, as 

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required under the Prison Litigation Reform Act . See 18 U.S.C. § 3626(a)(3)(B). In 

addition, subclass A has renewed its request for issuance of emergency writs of habeas 

corpus.5 

In response, the Sheriff argues that he has sufficiently addressed the risks to the

health of persons in his custody, in accordance with constitutional requirements, 

through the protective measures he has already implemented; his efforts were 

consistent with the recommendations in the CDC Guidelines; and he has taken 

substantial steps to implement social distancing. The Sheriff also appears to contend 

that further implementation of social distancing was not realistically possible in the Jail 

at this time. In response to the plaintiff's contention that the Sheriff has not adequately 

abated the risk of infection to medically vulnerable detainees, he argues that he cannot 

screen such individuals, because he does not have access to detained persons' health 

information. Furthermore, the Sheriff has explained, he already refers all medical 

complaints and issues to Cermak, and nothing more on his part is required to satisfy the 

requirements of the Fourteenth Amendment.

In their reply brief, the plaintiffs acknowledge that the Sheriff has taken "dramatic 

steps" to increase social distancing in the Jail. Pls.' Reply in Supp. of Renewed Mot. for 

Prelim. Inj. (dkt. no. 64) at 6. They contend, however, that these efforts have been 

insufficient to remedy the constitutional violation. They reaffirm their request to 

immediately convene a three-judge court to determine whether to release detained 

persons. They also reaffirm their request for a preliminary injunction mandating social 

 5 The plaintiffs also sought expedited discovery, but that largely became a moot point in 

light of later developments, so the Court does not discuss the request here.

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distancing throughout the Jail as well as transfer of detained persons to "some other 

safe location," id. at 2, and they ask the Court to issue such an order 

contemporaneously with a request to convene a three-judge panel. Additionally, the 

plaintiffs ask the Court to convert the TRO to a preliminary injunction.

1. Hearing on motion for preliminary injunction

The Court held an evidentiary hearing on the preliminary injunction motion by 

videoconference on April 23, 2020. In light of the unusually compressed time schedule 

necessitated by the development of the coronavirus pandemic and increases in 

confirmed coronavirus infections at the Jail, the Court determined that it would consider 

the parties' affidavits (giving due consideration to issues regarding weight) and would 

permit each side to call one live witness. Executive Director Miller testified as the 

Sheriff's witness; he offered, among other things, updates to his April 17 affidavit 

regarding the Sheriff's efforts to manage the coronavirus outbreak. 

With respect to screening medically vulnerable detainees, Miller testified that the 

Jail was doing what it could based on the limited medical information that it has 

available. Miller explained that Cermak conducts a medical evaluation of every 

detained person at intake, and based on this, it transmits information called "alerts" to 

the Jail to inform housing decisions based on medical needs. These alerts do not 

contain any diagnostic information; rather, they simply specify the accommodations 

necessary to address a medical need. For example, an alert from Cermak may inform 

the Jail that a detained person should be housed on a bottom bunk, but it will not state 

the medical reason for this determination. Miller testified that Cermak has not "yet" 

created an alert for those who have heightened risk of severe health consequences 

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from a coronavirus infection. Without such an alert, Miller explained that the Jail is 

conducting coronavirus screening based on any medical information about a detained 

person that it already has, including existing alerts. 

Miller also reported that the Jail had made additional efforts to implement social 

distancing. To encourage persons housed in dormitory units to stay at their beds rather 

than congregating in common spaces, the Jail has been providing them with free books, 

writing pads, and puzzle books. In addition, Miller stated, detainees throughout the Jail 

are now released to use shared shower facilities one at a time. In common areas, sixfoot intervals have been demarcated with spray paint markings. Correctional officers, 

Miller said, have been trained to enforce social distancing by first communicating to 

detained persons the importance of maintaining the distance, and if that fails, using 

disincentives such as loss of microwave privileges. Miller acknowledged that despite 

this, detainees have not always been practicing social distancing and that they continue 

to congregate in common spaces such as eating areas.

Miller reported that the Jail's staff has worked diligently to increase the Jail's 

ability to reduce the density of the population in its housing units. Over the past month, 

he stated, the Jail has opened up several hundred additional housing units. Between 

April 17 and April 23, the Jail doubled the number of detainees housed in singleoccupancy cells, and this effort included moving 260 detainees out of double-occupancy 

cells. Miller stated that there are currently no detainees housed in double-occupancy 

cells without a medical or security reason. Most of those who are still in doubleoccupancy cells, he said, are either housed by Cermak or are designated by Cermak as 

requiring placement in a double-occupancy cell due to a health condition or possible 

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suicide risk. Miller did not explain why a health condition might require placement in a 

double-occupancy cell. Some of those in double-occupancy cells have been placed 

there, he said, due to disorderly conduct—though, again, he did not explain how doublecelling serves a security purpose in such situations. Miller acknowledged on cross 

examination that social distancing is impossible for persons housed in doubleoccupancy cells.

Miller also reported that roughly 1,000 detainees are still being housed in 

dormitory units. He stated that approximately seventy percent of that population must 

remain in those units due to a medical need, though he did not explain this. As for the 

remainder, Miller cited one possible non-medical reason that some detainees must 

remain in dorm units: they are housed there in accordance with requirements of the 

Prison Rape Elimination Act. He explained that it would be "very challenging to try to 

separate those individuals and keep them protected as we need to under the PREA Act 

so that those individuals are not vulnerable in other areas while they're incarcerated." 

April 23, 2020 Tr. at 46–47. Again, however, Miller did not explain this.

Miller supplemented his testimony with an updated spreadsheet showing the 

occupancy of the Jail's housing units as of April 23. This spreadsheet showed that the 

capacity of almost every tier that was not in Cermak, the RTU, or under quarantine was 

fifty percent or below. However, in Division 2, Tier D1-D was at eighty-one percent 

capacity, and Tier D4-R was at fifty-nine percent (Tier D3-B was right at fifty percent). A 

number of Cermak and RTU tiers had occupancy rates as high as ninety-seven or one 

hundred percent. 

On cross examination, the plaintiffs' counsel asked Miller about the high 

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occupancy levels in certain Cermak and RTU tiers reported in the April 17 and April 22 

spreadsheets. Miller explained that Cermak needed to house those individuals together 

to be able to provide them with access to care at all hours of the day or night. Miller 

acknowledged that social distancing was not possible for those housed in the Cermak 

and RTU tiers. 

Plaintiffs' counsel also asked Miller about a high occupancy rate listed in the April 

17 spreadsheet for a tier (referenced above) that was not in Cermak, the RTU, or under 

quarantine: Tier D of Dorm 1 in Division 2, which was then at eighty-one percent 

capacity. The April 22 spreadsheet showed that the dorm was still at the same 

capacity. Miller stated: "There's another security level and/or issue with having this 

many people on this tier that we've had to abide by." Id. at 31. He did not clarify the 

nature of the security issue. Miller acknowledged that social distancing was not 

possible for detainees on that tier. 

When the Court asked Miller if there was still room at the Jail to move more 

detainees out of dorms and into cells, Miller responded, "I do have a plan in my back 

pocket." Id. at 57. He explained that he was working on moving people out of Dorms 1, 

2, and 3. He added that the Jail is considering reconfiguring housing arrangements on 

tiers for detainees who are women to see if there is a way to create more capacity, 

presumably to disperse the much larger population of detainees who are men. 

As for cleaning and sanitation of common areas, Miller reported that detainees 

have been given the supplies they need to do sanitation; he attributed shortfalls in 

sanitation to their own behavior. For example, he stated, at each microwave stations 

and shared showers and toilets, detained persons have been provided cleaning solution 

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so that they can sanitize the facility prior to use. 

Finally, Miller stated, to ensure implementation of its response measures, such 

as sanitation of common areas or use of PPE, the Sheriff has deployed "audit teams" 

that oversee these efforts. For example, the Jail has a PPE audit team that patrols PPE 

use and educates staff members and detained persons who are not using PPE 

properly.

Plaintiffs called as their hearing witness Dr. Homer Venters, a medical doctor 

with over a decade of experience in correctional health. Dr. Venters is the former 

Deputy Medical Director of the New York City Jail Correctional Health Service, a 

position in which he oversaw care of detainees and medical policies governing care in 

New York City's twelve jails. He had previously submitted a declaration along with 

plaintiffs' preliminary injunction reply brief. At the hearing, he testified that, in his view, 

the Jail's coronavirus response efforts have three key deficiencies: (1) lack of a 

cohesive coronavirus response plan; (2) failure to screen for individuals at higher risk of 

experiencing severe health consequences from a coronavirus infection; and 

(3) insufficient social distancing. 

First, Dr. Venters explained that having a cohesive plan, rather than a collection 

of policy documents that address different aspects of emergency response, is a critical 

first step to addressing an outbreak of a communicable disease in a jail facility. He 

stated that because jails are such complex systems, employing and housing several 

thousand people, it is not possible to respond to a large outbreak without a single, 

coordinate plan that coordinates response measures implemented by security, health, 

and administrative staff. 

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Second, Dr. Venters testified that screening medically vulnerable individuals is 

critical so that they can immediately receive heightened surveillance of possible 

symptoms of a coronavirus infection. This heightened surveillance would entail daily 

checks on those individuals for symptoms such as elevated temperature, shortness of 

breath, and fatigue. 

Third, Dr. Venters emphasized the importance of social distancing in combatting 

the spread of coronavirus. In his declaration, Dr. Venters stated that medical literature 

on the coronavirus confirms that social distancing is an essential strategy in controlling 

an outbreak. During the hearing, he explained that because the coronavirus spreads so 

easily through respiratory droplets emitted from an infected person, transmission "is 

greatly impeded by physical distance that we establish through social distancing." Id. at 

67. 

During his testimony, Dr. Venters emphasized that practicing social distancing 

only in some specific areas of a congregate setting like the Jail is insufficient to curb 

virus transmission rates. Because people are densely packed in many contexts during 

routine operations of a detention facility—e.g., sleeping areas, dayrooms, shower 

facilities, and areas where medication is dispensed—it is critical to implement social 

distancing throughout the entire facility. Dr. Venters explained that a "lack of a full 

commitment or complete commitment to social distancing" in the Jail would promote 

faster transmission of the coronavirus, and more detainees and staff would become 

"seriously ill." Id. at 74. In his declaration, Dr. Venters had observed that the concern 

about severe health effects is heightened when considering detainees, because they 

are statistically more likely than the general public to have pre-existing health problems 

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such as cardiovascular disease and cancer.

Dr. Venters also discussed the importance of communication with detainees and 

staff as a means to ensure that they practice social distancing in an appropriate way. 

Specifically, he said, to ensure widespread observance of this practice, individuals must 

understand what social distancing means and why it is important. 

On cross examination, Dr. Venters acknowledged that outbreak management in 

a correctional setting imposes "unique challenges," id. at 79, and that the CDC 

Guidelines are "now the most important set of principles" on response, id. at 81. He 

also acknowledged that the CDC Guidelines provide that social distancing might not 

always be feasible in a correctional setting. 

Dr. Venters testified that although use of single-occupancy cells facilitates social 

distancing, doing so poses a risk of increasing detainees' psychological distress from 

social isolation. He also testified that the Jail's practice of housing detainees with 

mental health conditions in double-occupancy cells is inappropriate, because they 

cannot practice social distancing at all. Though these two concerns point in opposite 

directions, Dr. Venters reconciled them by clarifying that, in the current pandemic 

environment, housing detainees in single-occupancy cells is preferable to doubleoccupancy because social distancing is critical. To address the psychological toll of 

isolation in single-occupancy cells, Dr. Venters testified, the Jail should provide 

opportunities for detained persons to come out of their cells and benefit from 

engagement with others in common areas while practicing social distancing. 

Dr. Venters's testimony largely buttressed the points made by several other 

medical doctors and epidemiologists in affidavits and declarations that the plaintiffs had 

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attached to their complaint and briefing of this motion. The plaintiffs' medical, public 

health, and correctional health experts have analogized the conditions in the Jail to 

those on cruise ships, which have experienced some of the largest concentrated 

outbreaks of the coronavirus. Specifically, these experts observe, a jail, like a cruise 

ship, is an environmentally enclosed, congregate-living setting with high levels of 

movement of people. Mohareb Dec., Pls.' Reply in Supp. of Renewed Mot. for Prelim. 

Inj., Ex. B (dkt. no. 64-3) at 5; Gonsalves Dec., Pls.' Renewed Mot. for Prelim. Inj., Ex. G 

(dkt. no. 55-7) ¶¶ 17, 27; Med. Profs.' Dec., Compl., Ex. B (dkt. no. 1-2) ¶¶ 24, 25, 26. 

In particular, Dr. Amir Mohareb, a medical doctor who is a biothreat response 

expert and an instructor at Harvard Medical School, used the example of the Diamond 

Princess cruise ship to highlight the importance of social distancing. The Diamond 

Princess sailed from Japan to Hong Kong in January of this year. After one of its 

passengers tested positive for the coronavirus in the last week of January, "strict 

precautions of hand hygiene and cabin isolation were implemented for all crew and 

passengers." Mohareb Dec. (dkt. no. 64-3) at 5. Despite these efforts, 700 of the

people who had been on the ship tested positive for the virus over the course of the 

following month. This example, Dr. Mohareb, said, reflects that in the context of a 

congregate living arrangement like a cruise ship, hand hygiene and cabin cell isolation 

are insufficient to control the transmission of the coronavirus. He stated that a jail, 

which is similarly a congregate environment, "constitutes an equal or greater risk setting 

to that of a cruise ship." Id. 

Dr. Mohareb explained that because respiratory droplets emitted by an infected 

person can travel up to six feet and be inhaled by another, social distancing is "a 

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necessary intervention to prevent the spread of infection" from the coronavirus. Id. at 3, 

6. He emphasized that social distancing is particularly important because an infected 

person may be mildly symptomatic or not symptomatic at all. Dr. Mohareb also noted

that numerous authoritative bodies, including the CDC, the World Health Organization, 

and the Infectious Diseases Society of America, have recommended social distancing 

to control the transmission of coronavirus. He added that mathematical modeling 

supports a conclusion that social distancing is "the primary means by which individuals 

can be safely protected from the threat of COVID-19." Id. at 5. 

All of the plaintiffs' expert affidavits emphasized the critical need to implement 

social distancing in order to meaningfully control the spread of the virus. Gonsalves 

Dec. ¶ 29 (social distancing is the "only way" to control outbreak); see also RasmussenTorvik Dec., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj., Ex. C (dkt. no. 64-4) 

¶ 9. They reiterated Dr. Venters's point that the very design of a correctional facilities 

promotes transmission of the coronavirus because it densely packs large groups of 

people together. Dr. Gonsalves stated that although correctional facilities are like cruise 

ships in that they are enclosed environments, they present an even higher risk of rapid 

transmission of the coronavirus because of "conditions of crowding, the proportion of 

vulnerable people detained, and often scant medical care resources." Gonsalves Dec.

¶ 17. In a joint declaration, five medical doctors with experience working in a

correctional setting—including three doctors who had worked at the Jail—similarly 

observed that the "crowded congregate housing arrangements" of jails and prisons 

promote the transmission of respiratory illnesses like the coronavirus disease. Med. 

Profs.' Dec. (dkt. no. 1-2) ¶ 24

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Beyond providing additional support for the points in Dr. Venters's testimony, the 

plaintiffs' other medical and public health experts added that the risks of severe health 

consequences from a coronavirus infection are not limited only to those who have 

preexisting medical conditions or are over the age of sixty-five. According to Dr. 

Gonsalves, "young and healthy individuals may be more susceptible than originally 

thought." Gonsalves Dec. ¶ 5. He reported that in March, the CDC reported that onefifth of infected people between the ages of twenty to forty-four had been hospitalized. 

Dr. Mohareb also stated that "a fraction of patients with COVID-19 in all groups go on to 

develop severe respiratory disease." Mohareb Dec. at 1.

At the conclusion of the April 23 preliminary injunction hearing, the Court 

extended the TRO, which was set to expire that day, pending its ruling on the motion for 

a preliminary injunction. 

Discussion

"A preliminary injunction is an extraordinary remedy." Whitaker ex rel. Whitaker

v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). 

A court's determination of whether to issue a preliminary injunction or temporary 

restraining order involves a two-step inquiry, with a threshold phase and a balancing 

phase. Id. First, the party seeking the preliminary injunction has to make a threshold 

showing, which has three elements: (1) reasonable likelihood of success on the merits 

of the claim; (2) irreparable harm to the movant absent preliminary injunctive relief; 

(3) lack of adequate remedies at law. Id. If the movant makes the threshold showing, 

the court proceeds to the balancing step, in which it determines "whether the balance of 

harm favors the moving party or whether the harm to other parties or the public 

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sufficiently outweighs the movant’s interests." Id.

Because they request relief that changes the status quo or requires the Sheriff to 

take affirmative action, the plaintiffs are requesting what is sometimes referred to as 

"mandatory" preliminary injunctive relief. See Graham v. Med. Mut. of Ohio, 130 F.3d 

293, 295 (7th Cir. 1997); O'Malley v. Chrysler Corp., 160 F.2d 35, 37 (7th Cir. 

1947); cf. Schrier v. Univ. Of Co., 427 F.3d 1253, 1260 (10th Cir. 2005) ("[D]etermining 

whether an injunction is mandatory as opposed to prohibitory can be vexing."). 

Mandatory preliminary injunctions typically are "cautiously viewed and sparingly 

issued." Graham, 130 F.3d at 295 (quoting Jordan v. Wolke, 593 F.2d 772, 774 (7th 

Cir. 1978)); see also Knox v. Shearing, 637 F. App'x 226, 228 (7th Cir. 2016). But 

"there may be situations justifying a mandatory temporary injunction compelling the 

defendant to take affirmative action" based on the circumstances, Jordan, 593 F.2d at 

774, and "the clearest [of] equitable grounds," W. A. Mack, Inc. v. Gen. Motors Corp., 

260 F.2d 886, 890 (7th Cir. 1958). At least two courts have recognized the unusual 

nature of mandatory preliminary injunctions and yet issued them after finding violations 

of the rights of people in custody during the coronavirus pandemic. See Barbecho v. 

Decker, No. 20-CV-2821 (AJN), 2020 WL 1876328, at *2, 8–9 (S.D.N.Y. Apr. 15, 2020); 

Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *2, 14–15 (W.D.N.Y. Apr. 2, 

2020).

In assessing each claim, the Court will address the first threshold requirement for 

a preliminary injunction: likelihood of success on the merits, which requires showing 

only a "better than negligible" chance of success. Whitaker, 858 F.3d at 1046 (quoting 

Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). Generally speaking, "[t]his is a 

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low threshold," id., but the Court gives the matter greater scrutiny here in light of the fact 

that plaintiffs are seeking affirmative conduct by the Sheriff. 

A. Habeas corpus claim

Plaintiffs and subclass A have petitioned for a writ of habeas corpus under 28 

U.S.C. § 2241. The Court first addresses the issue of exhaustion of remedies and then 

considers subclass A's ability to satisfy the criteria for a representative action.

1. Exhaustion

As the Court concluded in its TRO decision, a petition for a writ of habeas corpus 

under 28 U.S.C. § 2241 is the appropriate mechanism for a state pretrial detainee to 

challenge his or her detention. Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015). 

"Because a pre-trial detainee is not yet in custody pursuant to the judgment of a State 

court, relief under 28 U.S.C. § 2254 is not available." Id. (internal quotation marks 

omitted).

Section 2241 has no express exhaustion requirement, but courts apply a 

common-law exhaustion rule. Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004). 

A pretrial detainee must "exhaust all avenues of state relief" before seeking a writ of 

habeas corpus through a section 2241 action. See United States v. Castor, 937 F.2d 

293, 296–97 (7th Cir. 1991). Although there are exceptions, "the hurdle is high." 

Richmond, 387 F.3d at 604. In deciding whether an exception applies, courts "must 

balance the individual and institutional interests involved, taking into account 'the nature 

of the claim presented and the characteristics of the particular administrative procedure 

provided.'" Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting 

McCarthy v. Madigan, 503 U.S. 140, 146 (1992), superseded by statute on other 

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grounds as recognized in Porter v. Nussle, 534 U.S. 516 (2002)). A court may excuse 

exhaustion where:

(1) requiring exhaustion of administrative remedies causes prejudice, due 

to unreasonable delay or an indefinite timeframe for administrative action; 

(2) the agency lacks the ability or competence to resolve the issue or grant 

the relief requested; (3) appealing through the administrative process 

would be futile because the agency is biased or has predetermined the 

issue; or (4) where substantial constitutional questions are raised. 

Id.

It is undisputed that a state court has the authority to release a pretrial detainee. 

A person who is detained in Illinois may challenge his or her detention by seeking 

judicial review of his or her bond. 725 Ill. Comp. Stat. Ann. 5/110-6. On March 23, 

2020, in response to an emergency petition filed by the Cook County Public Defender, 

the Presiding Judge of the Cook County Circuit Court's Criminal Division issued an 

order setting out an expedited bond hearing process that applied to seven designated 

classes of detained persons. Def.'s Resp. to Mot. for TRO, Ex. E (dkt. no. 31-1) at 1–2. 

The seven classes included those at an elevated risk of contracting coronavirus due to 

their ages or underlying medical conditions—that is, the putative members of subclass

A. Id. The expedited hearings took place from March 24 through March 27. Id. at 3–5. 

Although the expedited hearings do not appear to be currently ongoing, Cook County's 

courts are still available for emergency matters, and judges are hearing motions to 

review or reduce bail daily at all locations where court is held. Def.'s Supp. Resp. to 

Mot. for TRO, Ex. A (dkt. no. 41-1) at 1.

In the TRO decision, the Court concluded that the plaintiffs—who both were 

named as representatives of subclass A—could not show that they exhausted available 

state remedies before petitioning for habeas corpus because they did not "contend that 

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they sought expedited bond hearings or initiated any sort of state proceedings 

challenging their bonds." Mays, 2020 WL 1812381, at *6. The Court declined to 

excuse exhaustion because it found that the state's existing bond reduction process is 

"anything but futile"; the plaintiffs did not show that the process is "unduly timeconsuming in a way that undermines their claimed constitutional rights"; and they did 

not show that state courts cannot remedy the type of constitutional violations they raise. 

Id.

After the Court issued its decision, the plaintiffs' counsel learned that Foster had 

sought release in the Circuit Court of Cook County through an expedited bond hearing. 

(The plaintiffs do not contend that Mays separately sought release in state court prior to 

the filing of this lawsuit.) Foster is charged with domestic battery, robbery, and unlawful 

restraint. Pls.' Renewed Mot. for Prelim. Inj., Ex. F (dkt. no. 55-6) at ECF p. 3 of 17. His 

bail was set at $50,000, requiring him to post $5,000 to be released, which he is unable 

to afford. Id. In his motion to reduce bond, he described his serious medical conditions 

and explained that they place him at a heightened risk of becoming critically ill if he 

contracts coronavirus. Id. at ECF p. 4–5 of 17. He also argued that it would violate his 

constitutional rights to keep him in custody during the coronavirus pandemic. Id. at ECF 

p. 13 of 17. On April 2, 2020, a state trial judge heard and denied Foster's motion. See 

id. at ECF p. 16 of 17.

The plaintiffs argue that Foster has sufficiently presented his request to the state 

courts and should not be required to do more. They acknowledge that he has not 

exhausted all avenues of state relief: he could appeal the state court's denial of his 

motion to reduce his bond, but plaintiffs do not contend that he done so. They argue, 

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however, that the Court should excuse exhaustion based on the futility of an appeal or 

the Court's equitable authority to excuse exhaustion. They contend that an appeal 

would take weeks to pursue, making appellate remedies practically unavailable to him in 

light of the urgency of the coronavirus pandemic and causing an unreasonable delay 

that would force him to continue to suffer the alleged harm. In support of this 

contention, they offer an affidavit from Lester Finkle, the Chief of Staff to the Cook 

County Public Defender, who explains the procedure for interlocutory appeals of denials 

to modify bail. Pls.' Renewed Mot. for Prelim. Inj., Ex. C (dkt. no. 55-3). Under Illinois 

Supreme Court Rule 604(c), before a defendant can file such an appeal, he must file a 

verified motion in the trial court providing certain information about himself. Id. ¶ 2. 

Only after the trial court denies the verified motion can the defendant file an appeal. Id. 

The affidavit submitted by the plaintiffs reflects that this process typically takes two to 

four weeks. Id. ¶ 5. After that, if the appellate court denies the defendant's appeal, he 

can seek discretionary review in the Illinois Supreme Court. Id. ¶ 3. Based on this 

information, the plaintiffs argue that their state-court remedies are futile or practically 

unavailable and that requiring them to pursue these remedies would unfairly prejudice 

them.

The plaintiffs' contentions are not persuasive. Their only evidence, Finkle's 

affidavit, describes how long such an appeal would take under ordinary circumstances. 

But here we are not dealing with not ordinary circumstances. The affidavit does not 

adequately show how the state appellate process would be expected to work for a 

medically vulnerable detainee claiming that due to a global pandemic that has infiltrated 

the Jail, he faces immediate risk of serious health consequences unless his bail is 

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reduced. We know the state courts are capable of dealing with emergency requests of 

this type promptly and efficiently; Cook County trial court judges dealt quickly and 

efficiently with hundreds of such requests in late March, and they continue to do so now. 

There is no reason to believe that the Illinois Appellate Court would treat such an appeal 

as an ordinary, run-of-the-mill bail issue and would refuse to deal with it promptly. 

Although a court may excuse exhaustion in the unusual case where a state process 

would cause an unreasonable delay, see, e.g., Gonzalez, 355 F.3d at 1016, the 

plaintiffs have not established that this is so in the present situation.

The plaintiffs also contend that the existing bond review processes provide no 

effective remedy for the claims that the class members advance in this case. 

Specifically, they contend that the Illinois statute governing bail, 725 Ill. Comp. Stat. 

Ann. 5/110-5, does not require state courts to consider a detained person's medical 

health in deciding whether to set or reduce the amount of bail and that state judges 

making those decisions would not be expected to consider the medical risks at the Jail. 

But they point to no evidence that state courts are not permitted to consider detained 

persons' medical conditions, let alone that state courts reviewing bonds are not actively 

considering detained persons' medical conditions in light of the coronavirus pandemic. 

To the contrary, the evidence in the record suggests that state courts are considering 

the medical dangers the coronavirus presents to detained persons. As the Court 

indicated in its TRO decision, between early March and early April 2020, the Jail's 

population decreased by over 1,175 detainees, Mays, 2020 WL 1812381, at *6; since 

then, the population has decreased by at least 300 more detainees, see Def.'s Resp. to 

Renewed Mot. for Prelim. Inj., Ex. A (dkt. no. 62-1) at 1. An affidavit submitted by the 

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plaintiffs reflects that this reduction in the Jail's population has occurred, at least in part, 

because state court judges have granted bond reductions. See Pls.' Renewed Mot. for 

Prelim. Inj., Ex. B (dkt. no. 55-2) ¶ 3 (state courts released 719 detainees through an 

expedited process for bond reconsiderations in light of the coronavirus pandemic). In 

short, the contention that state courts cannot or will not consider detained persons' 

medical conditions in bond review proceedings is unsupported. Accordingly, the Court 

concludes that the plaintiffs have not shown that the state courts do not provide an 

effective remedy for detained persons with medical conditions that place them at a high 

risk of severe illness or death if they contract coronavirus.

The plaintiffs also appear to argue that the state courts cannot provide an 

adequate remedy because, they contend, unlike the federal habeas claims in this case, 

state courts can consider factors other than medical need. That contention is based on 

an erroneous premise, which the Court will discuss momentarily, that a district court 

addressing a habeas corpus petition challenging jail conditions under section 2241 

cannot or would not consider other factors such as whether a detainee poses a threat to 

public safety. The bottom line is that the plaintiffs have not shown that the bond 

reduction remedy offered by the state courts is any less effective than a federal remedy.

For these reasons, the Court concludes—as it did in its TRO decision—that the 

plaintiffs have no likelihood of success on the habeas corpus claim advanced by them 

on behalf the representatives of subclass A due to their failure to exhaust available state 

court remedies. 

2. Representative action

Even if the plaintiffs could establish some likelihood of success on their 

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contention that the failure to exhaust state remedies should be excused, they would be 

unable to satisfy the criteria for a representative action. Although the Court need not 

actually certify a representative action at this point, before issuing a preliminary 

injunction it would need to find that the requirements for such an action conditionally 

would be met. Mays, 2020 WL 1812381, at *3 (collecting cases). Because the plaintiffs 

cannot satisfy those requirements, the representative class has no likelihood of success 

on the merits.

In the Seventh Circuit, the Federal Rule of Civil Procedure that governs class 

actions, Rule 23, does not apply to habeas corpus proceedings. Bijeol v. Benson, 513 

F.2d 965, 967–68 (7th Cir. 1975); cf. Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 

2010). But representative actions—which are analogous to class actions—on rare 

occasions can be brought in habeas corpus proceedings. Bijeol, 513 F.2d at 967–68; 

see also United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 220–21 (7th Cir. 1976); 

Kazarov v. Achim, No. 02 C 5097, 2003 WL 22956006, at *8 (N.D. Ill. Dec. 12, 2003); 

United States ex rel. Green v. Peters, 153 F.R.D. 615, 619 (N.D. Ill. 1994); Faheem-El 

v. Klincar, 600 F. Supp. 1029, 1033 (N.D. Ill. 1984). The Seventh Circuit has not "set 

down a strict formula which must be mechanically followed" before people in custody 

can bring a representative habeas corpus action. Morgan, 546 F.2d at 221. Instead, it 

has suggested that courts can look to the provisions of Rule 23 in determining whether 

a representative action is appropriate, though courts need not "precisely" comply with 

Rule 23. Id. n.5. The Court thus finds that Rule 23 is instructive in analyzing whether 

plaintiffs can bring a representative action. The parties seem to agree; they discuss the 

issue within the framework of Rule 23.

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To bring a class action, and by analogy a representative action, a plaintiff must 

show that the proposed class meets the four requirements of Rule 23(a): "numerosity, 

commonality, typicality, and adequate representation." Wal-Mart Stores, Inc. v. Dukes, 

564 U.S. 338, 349 (2011). In addition, "the proposed class must satisfy at least one of 

the three requirements listed in Rule 23(b)." Id. at 345. The plaintiffs here rely on, or 

analogize to, Rule 23(b)(2), which applies when "the party opposing the class has acted 

or refused to act on grounds that apply generally to the class, so that final injunctive 

relief or corresponding declaratory relief is appropriate respecting the class as a whole." 

Fed. R. Civ. P. 23(b)(2).

The parties dispute whether subclass A satisfies each requirement of Rule 23, as 

applied to representative actions, apart from numerosity. The Court discusses each 

disputed requirement in turn.

a. Commonality

To establish that they are likely to satisfy the commonality requirement, the 

plaintiffs must show that there likely "are questions of law or fact common to" the 

members of subclass A. Fed. R. Civ. P. 23(a)(2). "That language is easy to misread." 

Wal-Mart, 564 U.S. at 349. "Commonality requires the plaintiff[s] to demonstrate that 

the class members have suffered the same injury." Id. at 349–50 (internal quotation 

marks omitted). In addition, "[t]heir claims must depend upon a common contention" for 

which the "determination of its truth or falsity will resolve an issue that is central to the 

validity of each one of the claims in one stroke." Id. at 350. Thus "what matters . . . is 

not the raising of common ‘questions' . . . but rather, the capacity of a [representative] 

proceeding to generate common answers apt to drive the resolution of the litigation." Id. 

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at 350 (emphasis omitted). "Where the same conduct or practice by the same 

defendant gives rise to the same kind of claims from all class members, there is a 

common question." Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014).

Subclass A conditionally satisfies the commonality requirement because the 

plaintiffs likely can show that its members "suffered the same injury." See Wal-Mart, 

564 U.S. at 349–50. Specifically, the members of subclass A can show that the 

Sheriff's response to the coronavirus pandemic gave rise to their habeas claim. In 

addition, the plaintiffs point to several questions the determination of which, they 

contend, will resolve issues that are central to the validity of their habeas claim. For 

purposes of commonality, the Court need consider only one: whether coronavirus 

presents so severe a risk of harm to some people in the Sheriff's custody such it is 

unconstitutional to confine them in in the Jail.6 In a representative proceeding, a 

common answer to that question likely would drive the resolution of the litigation by 

resolving a core issue underlying subclass A's request for a writ of habeas corpus. 

The Sheriff contends that subclass A cannot satisfy the commonality requirement 

because its members seek habeas corpus relief that would require individual 

proceedings or determinations. But issues pertaining to the individualized nature of the 

desired injunctive relief go to the requirements of Rule 23(b), not commonality. See id.

 6 The Court notes that the plaintiffs posed different questions in their motion for class 

certification than in their reply brief in support of their motion for a preliminary injunction. 

Compare Pls.' Mot. to Cert. Class (dkt. no. 6) at 7–8 with Pls.' Reply in Supp. of 

Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21–22. Which particular question the 

Court identifies as conditionally satisfying the commonality requirement makes no 

difference for the purpose of this opinion. Regardless, at least one question the 

plaintiffs pose in their reply brief would also satisfy the commonality requirement: 

whether detainees in the Jail, as a matter of due process, are entitled to practice social 

distancing consistent with people in the community at large.

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at 360–62; Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 379–80 (7th Cir. 2015). In other 

words, the commonality requirement of Rule 23(a) does not demand that the relief 

ultimately awarded to each plaintiff be the same. See id.; Suchanek, 764 F.3d at 756 

(commonality of relief is not essential); In re IKO Roofing Shingle Prod. Liab. Litig., 757 

F.3d 599, 602 (7th Cir. 2014) ("[The commonality requirement as discussed in] Wal–

Mart has nothing to do with commonality of damages."). Nor is this a case in which the 

commonality requirement is not satisfied because individual plaintiffs experienced the 

harm in meaningfully different ways. Cf. Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 

481, 497–98 (7th Cir. 2012) (class of disabled students did not meet commonality 

requirement where its members likely experienced alleged violations of federal and 

state law in different ways). The putative members of subclass A all experienced the 

alleged harm from the Sheriff's response to coronavirus in the same or similar ways, 

specifically their allegedly increased risk of exposure to the virus. In addition, all of 

them raise the same kind of claim, and their claims all involve a common question that 

would resolve a central issue of that claim. 

The Court acknowledges that, in a case raising claims similar to the habeas 

corpus claims asserted in this one, another judge in this district recently took a different 

approach with regard to commonality. A putative representative class of convicted 

prisoners in Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660(N.D. Ill. Apr. 10, 

2020), also sought habeas corpus relief and medical furloughs or home detentions 

under section 1983 based on an allegedly inadequate response to the coronavirus 

pandemic by the director of the Illinois Department of Corrections. Id. at *1–2. For the 

section 1983 claim, the court found the only common question "apt to drive the 

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resolution of the litigation," id. at *15 (quoting Wal-Mart, 564 U.S. at 350), was "which 

class members should actually be given a furlough," id. That question did not satisfy 

the commonality requirement, the court found, because "individualized determinations" 

would be necessary to answer it. Id. The court also indicated that the habeas claim 

would not be "suitable for representative or class treatment" because "release 

determinations must be made on an individual basis regardless of the vehicle for 

considering and effectuating them." Id. at *21 n.15. The court did not clarify whether it 

based its finding that the habeas claim would be unsuitable for representative or class 

treatment on the commonality requirement or another Rule 23 consideration. See id.

This Court respects the court's decision in Money, which it cites as persuasive 

authority elsewhere in this opinion. But to the extent that the court in Money found that 

the putative classes failed to satisfy the commonality requirement because their 

requested relief would entail individualized determinations, this Court departs from the 

analysis in Money. As indicated, the commonality requirement does not mean that the 

relief ultimately awarded to each plaintiff must be the same. Thus whether the release 

determinations would need to be made on an individual basis does not factor into the 

Rule 23(a) commonality analysis. 

The Court concludes, for the reasons stated above, that the putative class 

satisfies Rule 23(a)'s commonality requirement. 

b. Typicality

The Sheriff contends that the putative subclass does not meet Rule 23(a)'s 

typicality requirement. He does not explain why, and he is incorrect. The named 

plaintiffs' habeas corpus "claim is typical if it arises from the same event or practice or 

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41

course of conduct that gives rise to the claims of other [subclass] members and is

based on the same legal theory." Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 

2018) (alteration omitted). "This requirement is meant to ensure that the named 

representative’s claims have the same essential characteristics as the claims of the 

class at large." Id. (internal quotation marks omitted). Typicality is satisfied for subclass

A because the named plaintiffs have alleged the same injurious conduct stemming from 

the Sheriff's response to the coronavirus pandemic as the other members of the 

subclass and have advanced the same legal theory as the subclass at large.

c. Rule 23(b)(2)

Rule 23(b)(2) is the sticking point for the habeas corpus plaintiffs' attempt to bring 

a representative action on behalf of subclass A. As indicated, Rule 23(b)(2) allows for 

class certification where "the party opposing the class has acted or refused to act on 

grounds that apply generally to the class, so that final injunctive relief . . . is appropriate 

respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). It "applies only when a 

single injunction or declaratory judgment would provide relief to each member of the 

class," not "when each individual class member would be entitled to a different

injunction." Wal-Mart, 564 U.S. at 360. 

The Sheriff contends that the putative subclass A does not satisfy Rule 23(b)(2) 

because the plaintiffs seek individualized relief. He suggests that any habeas corpus

proceeding would need to account for each subclass member's individual 

circumstances, including, for example, the danger each detainee would pose to the 

public if released. The plaintiffs expressly concede that the relief would need to be at 

least partly individualized. They contend, however, that this could be achieved through 

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"brief, individual proceedings" without defeating class certification. Pls.' Reply in Supp. 

of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 23; see also Pls.' Renewed Mot. for 

Prelim. Inj. (dkt. no. 55) at 16. 

In actions where plaintiffs seek an injunction that "would merely initiate a process 

through which highly individualized determinations of liability and remedy are made," 

Rule 23(b)(2) is not satisfied. Jamie S., 668 F.3d at 499 (7th Cir. 2012) (injunction that 

established a system for identifying disabled children and implementing individualized 

education plans and remedies did not satisfy Rule 23(b)(2) because it "merely 

establishe[d] a system for eventually providing individualized relief"). Compare id. and

Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 (7th Cir. 2011) (in case 

challenging insurer's performance of hail storm damage appraisals, injunction requiring 

class-wide roof reinspection did not satisfy Rule 23(b)(2) where it "would only initiate 

thousands of individualized proceedings to determine breach and damages") with Chi.

Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chi., 797 F.3d 426, 441–42 (7th 

Cir. 2015) (proposed class was maintainable under Rule 23(b)(2) where plaintiffs asked 

the court for a declaration that a school board's policies violated Title VII and 

prospective relief including a moratorium on a challenged practice and the appointment 

of a monitor).

The plaintiffs concede that issuing writs of habeas corpus in this case would 

entail individualized proceedings but not that Rule 23(b)(2) precludes them from 

proceeding on a representative basis. They suggest that the type of supposedly brief, 

individualized proceedings they seek "have long been commonplace in class litigation." 

Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 23. But the cases 

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they cite to support that proposition are distinguishable from this one. Both Barnes v. 

District of Columbia, 278 F.R.D. 14 (D.D.C. 2011), and Dunn v. City of Chicago, 231 

F.R.D. 367 (N.D. Ill. 2005), amended on reconsideration, No. 04 C 6804, 2005 WL 

3299391 (N.D. Ill. Nov. 30, 2005), involved individualized proceedings on damages 

under Rule 23(b)(3), not individualized proceedings for injunctive relief under Rule 

23(b)(2). See Barnes, 278 F.R.D. at 19–23; Dunn, 231 F.R.D. 367, at 375–78. Dunn

also involved class members who had variations in how they experienced the 

constitutional violations—an issue the court properly discussed as part of the 

commonality analysis, not the Rule 23(b)(2) analysis. See id. at 372. 

Even if the plaintiffs did not concede it, individualized proceedings would be 

required for writs of habeas corpus that the plaintiffs seek because the Prisoner 

Litigation Reform Act (PLRA) applies to their habeas corpus claims. Under the PLRA, 

in tailoring any prospective or preliminary injunctive relief "in any civil action with respect 

to prison conditions," a court must "give substantial weight to any adverse impact on 

public safety," among other considerations. 18 U.S.C. § 3626(a)(1)(A), (a)(2). The 

PLRA defines "civil action with respect to prison conditions" as "any civil proceeding 

arising under Federal law with respect to the conditions of confinement or the effects of 

actions by government officials on the lives of persons confined in prison, but does not 

include habeas corpus proceedings challenging the fact or duration of confinement in 

prison." Id. § 3626(g)(2). Thus if the plaintiffs' habeas claims constitute civil actions as 

defined by the PLRA, the Court would need to give substantial weight to the public 

safety of granting writs, which would require consideration of, among other things, any 

danger each individual member of subclass A poses to the public.

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As the Court indicated in its TRO decision, the question of whether detained 

persons can even use a section 2241 petition to challenge the conditions of their 

confinement has divided courts. Mays, 2020 WL 1812381, at *6 (comparing, e.g.,

Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (a prisoner may challenge the 

conditions of his confinement in a federal habeas corpus petition) and Thompson v. 

Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (same) with Spencer v. Haynes, 774 F.3d 

467, 469–70 (8th Cir. 2014) (section 2241 petitions may not challenge conditions)). The 

Seventh Circuit has expressed a "long-standing view that habeas corpus is not a 

permissible route for challenging prison conditions," at least when a prisoner's claim 

does not have "even an indirect effect on the duration of punishment." Robinson v. 

Sherrod, 631 F.3d 839, 840–41 (7th Cir. 2011). But the Seventh Circuit has also noted 

that "the Supreme Court [has] left the door open a crack for prisoners to use habeas 

corpus to challenge a condition of confinement." Id. at 840 (quoting Glaus v. Anderson, 

408 F.3d 382, 387 (7th Cir. 2005)) (citing Nelson v. Campbell, 541 U.S. 637, 644–46 

(2004); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Preiser v. Rodriguez, 411 U.S. 

475, 499–500 (1973)).

In the TRO decision, the Court said that it did not need to decide the question of 

whether the plaintiffs could challenge conditions of confinement in a habeas corpus 

proceeding definitively at the time but stated that were it "required to address this point, 

[the Court] would not consider it to be an absolute bar to plaintiffs' motion for a 

temporary restraining order." Mays, 2020 WL 1812381, at *6. The Court stated that 

"[t]he plaintiffs' claims, as they have framed them, do bear on the duration of their 

confinement (they contend, ultimately, that they cannot be held in the Jail consistent 

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with the Constitution's requirements), and they are not the sort of claims that are, or can 

be, appropriately addressed via a claim for damages." Id.

But the plaintiffs' claims also bear on the conditions of their confinement: they 

challenge the constitutionality of the conditions in the Jail during the coronavirus 

pandemic, and they contend that the conditions are so deficient that it is unconstitutional 

for subclass A to be confined at the Jail. The Seventh Circuit has not expressly

addressed whether the PLRA applies to habeas corpus petitions that involve conditions 

of confinement, but it has not foreclosed the application of the PLRA to such petitions. 

Cf. Walker v. O'Brien, 216 F.3d 626, 634 (7th Cir. 2000) (stating that actions "brought 

under section 2241 . . . as habeas corpus petitions are not subject to the PLRA"—but 

not addressing such petitions that challenge the conditions of confinement); see also

Thomas v. Zatecky, 712 F.3d 1004, 1005 (7th Cir. 2013) (Walker holds, among other 

things, "that a collateral attack under § 2241 or § 2254 is not a 'civil action' for the 

purpose" of the PLRA (emphasis added)). By specifying that a "civil action with respect 

to prison conditions . . . does not include habeas corpus proceedings challenging the 

fact or duration of confinement in prison," the language of the PLRA appears suggests 

that it may cover other types of habeas corpus proceedings, including, potentially, those 

challenging the conditions of confinement. See Advocate Health Care Network v. 

Stapleton, 137 S. Ct. 1652, 1659 (2017) (courts should interpret a statute in a way that 

would "give effect, if possible, to every clause and word"). And at least some courts 

addressing the issue have suggested that the PLRA applies to habeas corpus petitions 

involving the conditions of confinement. See Jones v. Smith, 720 F.3d 142, 145, 145 

n.3 (2d Cir. 2013) (the PLRA does not apply to "habeas petition[s] seeking to overturn a 

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criminal conviction or sentence" but presumably would apply to conditions-ofconfinement habeas claims brought under section 2241); Blair-Bey v. Quick, 151 F.3d 

1036, 1042 (D.C. Cir.) (habeas corpus petitions challenging conditions of confinement 

"would have to be subject to the PLRA's . . . rules, as they are precisely the sort of 

actions that the PLRA sought to address"), on reh'g, 159 F.3d 591 (D.C. Cir. 1998).

Accordingly, the Court concludes that the PLRA applies to the plaintiffs' habeas

corpus claim. The PLRA's mandate that a court "give substantial weight to any adverse 

impact on public safety" before issuing preliminary injunctive or prospective relief thus 

would apply to the habeas corpus claim. See 18 U.S.C. § 3626(a)(1)(A), (a)(2). To do 

so, the Court would need to consider the circumstances of the detained persons and 

any threat they pose to public safety, which plainly would vary from one person to 

another. This is a process that would render the claim unsuitable to certification under 

Rule 23(b)(2) or its analogy for representative actions. 

The plaintiffs also state, in two sentences found at the very end of a small-type, 

twenty-four-line footnote, that a release order would not require a court to resolve 

individualized questions regarding safety because such an order would give the Sheriff 

discretion on which detained persons to release. Pls.' Reply in Supp. of Renewed Mot. 

for Prelim. Inj. (dkt. no. 64) at 21 n.16. The plaintiffs make this point with respect to 

commonality for their section 1983 claim, not on the question of whether the habeas 

corpus claim may be handled on a representative basis. They nowhere attempt to 

explain how the Court could condition the issuance of writs of habeas corpus on 

detainee-specific decisions made by the Sheriff. As this Court stated in its TRO 

decision, "[t]he issuance of [a] writ of habeas corpus through a section 2241 petition is a 

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federal remedy (in other words, it does not depend on state law)." Mays, 2020 WL 

1812381, at *7. Nor could the issuance of a writ depend on subsequent decisions by a 

detained person's custodian. The habeas corpus claim proceeds against the custodian 

based on the fundamental, long-standing rule that a person in custody "may be liberated 

if no sufficient reason is shown to the contrary." Rumsfeld v. Padilla, 542 U.S. 426, 435 

(2004) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)). The only remedy 

available for a habeas corpus claim is liberation of the person in custody. See id. It is 

difficult to imagine a writ of habeas corpus that would tell a jailer to release the 

petitioner—unless he decides it would not be a good idea to do so. Plaintiffs offer no 

authority supporting the proposition that a writ of habeas corpus could appropriately be 

issued in this way.

In sum, though representative habeas corpus actions do not need to comply 

"precisely" with Rule 23, Morgan, 546 F.2d at 221 n.5, the plaintiffs cannot meet the 

requirements for representative treatment.

7

Because the plaintiffs' habeas corpus claims founder on the exhaustion 

requirement, and because they have not established that the claims may be pursued on 

a representative basis, their representative action on behalf of subclass A has no 

likelihood of success on the merits. Accordingly, the plaintiffs' request for the Court to 

 7 The Court acknowledges that this is different from the conclusion it reached in the 

TRO decision, in which it conditionally certified subclass A. See Mays, 2020 WL 

1812381, at *4. But that was, of course, a provisional decision. And even for a nonconditionally certified class, a court may alter or amend an order granting class 

certification at any point before final judgment. Fed. R. Civ. P. 23(c)(1)(C); Gen. Tel. 

Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (class certification order is "inherently

tentative," and a district court “remains free to modify it in the light of subsequent 

developments in the litigation"). 

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release medically vulnerable members of subclass A on unsecured or non-monetary 

bail conditions pending review of their habeas corpus claims is moot.

B. Section 1983 claim

The Court next addresses the question of likelihood of success on the plaintiffs' 

section 1983 claim, dealing with conditional class certification first, followed by the 

merits. The Court then addresses certain provisions of the PLRA as applied to the 

section 1983 claim.

1. Conditional class certification

For their section 1983 claim, the plaintiffs seek class-wide relief in the form of a 

preliminary injunction. But because the plaintiffs only recently filed the lawsuit, there 

has not yet been a class certification ruling. As the Court indicated in its TRO opinion, 

"[t]his does not foreclose the possibility of relief for the plaintiffs at this stage, because a 

district court has general equity powers allowing it to grant temporary or preliminary 

injunctive relief to a conditional class." Mays, 2020 WL 1812381, at *3 (citing Lee v. 

Orr, No. 13 C 8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013); Al Otro Lado v. 

Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 2020); Gooch v. Life Inv'rs Ins. Co. of Am., 672 

F.3d 402, 433 (6th Cir. 2012); Howe v. Varity Corp., 896 F.2d 1107, 1112 (8th Cir. 

1990)). "Furthermore, Federal Rule of Civil Procedure 23(b)(2) 'does not restrict class 

certification to instances when final injunctive relief issues' and permits certification of a 

conditional class for the purpose of granting preliminary injunctive relief." Id. (quoting 

Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)).

As indicated, to bring a class action a plaintiff must show that the proposed class 

meets the four requirements of Rule 23(a): "numerosity, commonality, typicality, and 

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49

adequate representation." Wal-Mart, 564 U.S. at 349. In addition, "the proposed class 

must satisfy at least one of the three requirements listed in Rule 23(b)." Wal-Mart, 564 

U.S. at 345. The plaintiffs rely on Rule 23(b)(2).

As an initial matter, the Court must clarify the scope of the class or subclasses

for which the plaintiffs have sought certification. They assert count 1 under section 

1983 on behalf of all putative members of a class consisting of "all people who are 

currently or who will in the future be housed in the Cook County Jail for the duration of 

the COVID-19 pandemic." Compl. (dkt. no. 1) ¶ 60. In their reply brief in support of 

their motion for a preliminary injunction, however, the plaintiffs indicate that they also 

request injunctive relief for claims under section 1983 specifically for the putative 

members of proposed subclass B, which consists of "all people who are currently 

housed on a tier where someone has already tested positive for the coronavirus," id. ¶ 

62. See, e.g., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 29 

(requesting the transfer of members of putative subclass B). Accordingly, the Court 

takes this as meaning that, with respect the section 1983 claim, the plaintiffs seek 

injunctive relief on behalf of both the overall class and subclass B.

The parties dispute whether the class and subclass B satisfy each requirement of 

Rule 23, except for numerosity. The Court's analysis earlier in this opinion finding that 

subclass A (the subclass seeking habeas relief) satisfies the typicality and commonality 

requirements apply to the overall class and subclass B as well. Specifically, the class 

and subclass B satisfy the commonality requirement because their members "have 

suffered the same injury" and their claims "depend upon a common contention" for 

which class action proceedings will "generate common answers apt to drive the 

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resolution of the litigation." Wal-Mart, 564 U.S. at 350 (emphasis omitted). As with 

subclass A, the claims members of the class and subclass B raise at least one common 

question that satisfies Rule 23(a)'s commonality requirement: whether coronavirus 

presents so severe a risk of harm to those in the Sheriff's custody that their conditions of 

confinement are unconstitutional. For the reasons previously discussed, Rule 23(a)'s 

commonality requirement does not involve whether each member of the class would be 

entitled to identical relief.

The Class and subclass B also satisfy Rule 23(a)'s typicality requirement. Each 

member's section 1983 claim arises from the Sheriff's response to the coronavirus 

pandemic—"the same event or practice or course of conduct"—and "is based on the 

same legal theory." See Lacy, 897 F.3d at 866 (alteration omitted). 

The Court's analysis under Rule 23(b)(2), however, differs from its analysis

regarding the habeas corpus claim. Again, Rule 23(b)(2) allows for class certification 

where "the party opposing the class has acted or refused to act on grounds that apply 

generally to the class, so that final injunctive relief . . . is appropriate respecting the 

class as a whole." Fed. R. Civ. P. 23(b)(2). It "applies only when a single injunction or 

declaratory judgment would provide relief to each member of the class," not "when each 

individual class member would be entitled to a different injunction." Wal-Mart, 564 U.S. 

at 360.

A good deal of the injunctive relief that the plaintiffs seek would provide relief to 

the entire class via a single order. Specifically, on behalf of the overall class, the 

plaintiffs request a single order mandating social distancing and/or extending the TRO 

or converting it to a preliminary injunction, which would provide the same relief to each 

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class member. Accordingly, the class satisfies the requirements of Rule 23(b) to the 

extent the plaintiffs request relief under section 1983 mandating social distancing and/or

extending the TRO or converting it into a preliminary injunction.

The plaintiffs' requests for prisoner transfers and/or releases on behalf of 

subclass B, however, likely would entail individual determinations to some degree. The

parties do not dispute that the PLRA applies to the plaintiffs' section 1983 claim or that 

the 1983 claim involves prison conditions. As discussed earlier with regard to the 

habeas corpus claim, before granting prospective or preliminary injunctive relief on the 

section 1983 claim, the PLRA requires the Court to "give substantial weight to any 

adverse impact on public safety," in addition to making other findings. 18 U.S.C. §

3626(a)(1)(A), (a)(2). As indicated, the Sheriff contends that these individual 

determinations prevent certification under 23(b)(2). As the Court has discussed, the 

plaintiffs contend (albeit only in a footnote) that a court would not be required to make 

those individual determinations because a court could grant a single injunction while

delegating those questions to the Sheriff. Pls.' Reply in Supp. of Renewed Mot. for 

Prelim. Inj. (dkt. no. 64) at 21 n.16; see also Brown, 563 U.S. at 537–38 (three-judge 

court adequately considered "public safety by leaving" decision "of how best to comply 

with its population limit to state prison officials"). The Court recognizes that analysis of 

whether the Sheriff may exercise discretion in carrying out a transfer or release order 

may be different for the section 1983 claim. Among other differences, a petition for 

habeas corpus contemplates a singular form of relief with regard to habeas—release 

from custody—whereas a court has a broader spectrum of possible relief under section 

1983. See Rumsfeld, 542 U.S. at 435; Preiser, 411 U.S. at 484–86, 489. The range of 

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injunctive relief available under section 1983 may allow courts to "leave details of 

implementation to [a] State's discretion by leaving sensitive policy decisions to 

responsible and competent policy state officials." See, e.g., Brown, 563 U.S. at 538. 

The Court need not decide that issue now, however, because, as it will explain later in

this opinion, at this point it concludes that the predicate under the PLRA for convening a 

three-judge court or ordering prisoner transfers has not been established. 

In sum, the Court conditionally certifies the class to the extent the plaintiffs 

request relief under section 1983 requiring social distancing and/or extending the TRO 

or converting it to a preliminary injunction. The Court declines to decide whether 

subclass B satisfies the requirements of Rule 23(b) because it is not necessary to do so

at this time.

2. Likelihood of success on the merits

The injunctive relief requests remaining for determination are the class's requests 

to require social distancing throughout the Jail and (it appears) advance identification 

and further screening of detained persons with conditions that make them more 

vulnerable to severe health consequences from coronavirus disease, as well as their 

request to convert the TRO to a preliminary injunction. (The Court addresses in later 

sections the plaintiffs' request to require the Sheriff to transfer detainees out of the Jail

and to convene a three-judge panel.) 

The claims of the class arise under the Due Process Clause of the Fourteenth 

Amendment. "When a state actor [ ] deprives a person of his ability to care for himself 

by . . . detaining him . . . , it assumes an obligation to provide some minimum level of 

well-being and safety." Johnson v. Rimmer, 936 F.3d 695, 706 (7th Cir. 2019) (quoting 

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Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir. 1998)). The Due Process 

Clause requires a jailer to provide a pretrial detainee with food, shelter, and basic 

necessities, including reasonably adequate sanitation, ventilation, bedding, hygienic 

materials, and utilities, Hardeman v. Curran, 933 F.3d 816, 820 (7th Cir. 2019), and to 

"meet[ ] the person's medical needs while he is in custody," Johnson, 936 F.3d at 706. 

More broadly, the Due Process Clause protects pretrial detainees, who "have not been 

convicted of anything," Miranda v. County of Lake, 900 F.3d 335, 350 (7th Cir. 2018), 

from conditions that "amount[ ] to punishment." Kingsley v. Hendrickson, 135 S. Ct. 

2466, 247 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)); 

Hardeman, 933 F.3d at 823. 

Here there is no question that the plaintiffs' claims involve conditions that are 

sufficiently serious to invoke the Fourteenth Amendment; the Sheriff does not argue 

otherwise. A pretrial detainee may establish a Fourteenth Amendment violation based 

on a condition, or combination of conditions, posing an "unreasonable risk of serious 

damage to [his] future health." Henderson v. Sheahan, 196 F.3d 839, 847 (7th Cir. 

1999) (decided under Eighth Amendment "deliberate indifference" standard). See 

Helling v. McKinney, 509 U.S. 25, 33, 35 (1993) (Eighth Amendment case; "exposure of 

inmates to a serious, communicable disease" that poses a risk of future harm is a 

deprivation sufficiently serious to invoke constitutional protections). This is precisely 

where persons detained in the Jail find themselves. The coronavirus is indisputably 

present in the Jail. And the persons detained there are housed in settings that facilitate 

its transmission. This is true throughout the Jail, given the close proximity in which even 

single-celled detained persons are housed and the fact that they occupy common areas 

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like bathrooms, showers, and dayrooms where other inmates congregate or have been 

present. And it is particularly true for detained persons who are doubled celled and 

those who are still housed in the dormitory units, where dozens (or more) spend twentyfour hours per day, or close to it, in the same room. It is equally undisputed that 

persons are detained in these settings with the knowledge of the Sheriff and his 

personnel, who have assigned them to live in these quarters while aware of the risks of 

virus transmission. All of this, taken together, is sufficient for the plaintiffs to have well 

more than a "better than negligible chance," see Whitaker, 858 F.3d at 1046, of 

establishing the threshold requirement of their due process claim—conduct that the 

Sheriff knows puts detainees at a significant risk of serious harm from coronavirus. See 

Kingsley, 135 S. Ct. at 2472; Miranda, 900 F.3d at 353. Meeting this threshold 

requirement of the due process standard does not require an intent to cause harm; it 

requires only knowledge of "the physical consequences" of one's conduct. Kingsley, 

135 S. Ct. at 2472.

The primary dispute before the Court, and the point on which the Sheriff focuses 

his defense, involves the second requirement of a due process claim. To succeed on 

their claim, the plaintiffs must show that the Sheriff's conduct in addressing the risks 

posed by exposure to coronavirus is objectively unreasonable in one or more respects. 

See, e.g., McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). At the 

preliminary injunction stage, however, the plaintiffs are not required to prove this 

definitively; they are required only to establish a reasonable likelihood that they will 

ultimately succeed in proving it.

The plaintiffs concede that the Sheriff and others have taken significant steps to 

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reduce the Jail's population and to decrease the number of persons housed in groups or 

double celled. They argue, however, that the Sheriff's actions do not go far enough and 

that detained persons continue to be unreasonably exposed to a risk of serious harm. 

The plaintiffs contend that social distancing is not being enforced even in units where 

detained persons are single celled, given joint usage of showers, toilet facilities, and 

dayrooms. And, they say, social distancing is not even a possibility for the hundreds 

who are double celled or remain in dormitory units. The plaintiffs also contend that 

despite policies promulgated by the Sheriff, proper sanitation—in particular, frequent 

cleaning of surfaces and facilities used in common, distribution of cleaning materials to 

detainees, and so on—is not actually being carried out on the ground. Finally, the 

plaintiffs contend—and it is undisputed—that nothing has been done by the Sheriff to 

enable him to identify, in advance, detained persons with medical or other conditions 

that make them particularly vulnerable to serious illness should they contract the 

coronavirus.

The Sheriff argues that he and others have taken significant steps to reduce the 

risk to detained persons from coronavirus. One critical aspect of this is a very 

significant reduction in the overall population of the Jail, accomplished by bond 

reductions issued by judges and by expansion, to its limits, of the Sheriff's electronic 

home monitoring program. In addition, in recent weeks, there have been far fewer new 

detainees admitted on a daily basis than has been the case historically, presumably due 

to fewer arrests. At the same time, the Sheriff has taken steps to increase capacity, 

including by reopening previously shuttered buildings and parts of buildings within the 

Jail complex. Together, these actions have enabled the Sheriff to take further steps to 

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separate persons who remain detained in the Jail. Specifically, a far greater percentage 

of detainees are now in cells by themselves. And far fewer are housed in the dormitory 

units than before, with many having been transferred to single-cell units. In addition, at 

the Sheriff's direction, detainees have been provided guidance regarding social 

distancing. The Sheriff has also instituted policies to enhance sanitation practices and 

to carry out these policies. He has also implemented the distribution of facemasks to 

certain detained persons—in particular, those who are in quarantine—consistent with 

the availability of supplies, and he has undertaken efforts to acquire more. (Some of 

this has taken place as a result of the TRO entered on April 9.)

It cannot reasonably be disputed that the Sheriff has undertaken a significant, 

and impressive, effort to safeguard detained persons in his custody from infection by 

coronavirus. And based on the record, including the testimony of Executive Director 

Miller at the April 23 hearing, the Court is satisfied that the Sheriff and his staff have 

acted in good faith, with the goal of protecting the people placed in his custody, 

consistent with his obligation to maintain security.

Were this an Eighth Amendment case involving convicted prisoners, the efforts 

the Court has just described likely would be the end of the story. To prevail in a case 

involving a convicted prisoner, a plaintiff is required to show that the prison official was 

deliberately indifferent to the risk of harm to the plaintiff—in other words, the official 

knew about but disregarded that risk. See, e.g., Orr v. Shicker, 953 F.3d 490, 499 (7th 

Cir. 2020); Garcia v. Armor Corr. Health Serv., Inc., 788 F. App'x 393, 395 (7th Cir. 

2019). Were the plaintiffs in this case required to make that showing, they would be 

unable to prevail; the Sheriff has been anything but deliberately indifferent to the risk of 

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harm to pretrial detainees from coronavirus. 

But because this is a case involving persons detained prior to an adjudication of 

their guilt or innocence, the Sheriff's good intentions are not dispositive of the plaintiffs' 

claims. There is a critical difference between a claim regarding conditions of 

confinement brought by pretrial detainees like the plaintiffs and one brought by a 

convicted prisoner under the Eighth Amendment, who unlike a pretrial detainee can 

constitutionally be subjected to punishment. See Hardeman, 933 F.3d at 824 (Eighth 

Amendment standard is "more demanding"). The standard by which a court evaluates 

a claim by a pretrial detainee like the plaintiffs "is solely an objective one." Kingsley, 

135 S. Ct. at 2473. The plaintiffs are not required to show that the Sheriff had an intent 

to punish or to harm them, id.; indeed, they need not show any sort of malicious or bad 

intent at all. Rather, what they are required to show—actually, on a preliminary 

injunction, simply establish a reasonable likelihood of showing—is that the Sheriff's 

conduct with respect to the particular condition has been objectively unreasonable in 

one or more respects. See McCann, 909 F.3d at 886. In applying this standard, a court 

"focus[es] on the totality of facts and circumstances" the defendant faced "to gauge 

objectively—without regard to any subjective belief held by the [defendant]—whether 

the response [to the conditions] was reasonable." Id. 

The plaintiffs contend that the Sheriff's response to the coronavirus outbreak at 

the Jail has not been objectively reasonable or sufficiently protective of the people in his 

custody, at least with respect to the issues currently before the Court—social distancing, 

sanitation, and identification and monitoring of highly vulnerable detainees. In 

evaluating the plaintiffs' contentions, the Court assesses objective reasonableness 

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"from the perspective of 'a reasonable [official] on the scene,' based on what the 

[official] knew at the time." Mays, 2020 WL 1812381, at *9 (quoting Kingsley, 135 S. Ct. 

at 2473). The question, in the present context, is whether the Sheriff "acted reasonably 

to mitigate the risks to [the] health and safety of detainees." Id. (citing Hardeman, 933 

F.3d at 825; Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)). And in determining the 

reasonableness of the Sheriff's actions, the Court "must account for his legitimate 

interest in managing the Jail facilities," and it must "defer to policies and practices that 

'are needed to preserve internal order and discipline and to maintain institutional 

security.'" Id. (quoting Kingsley, 135 S. Ct. at 2473); see Bell, 441 U.S. at 547.

The fact of the matter is that the Sheriff's actions have not eliminated the risk to 

detained persons; far from it. But this, too, is not dispositive. Although a jailer must 

make a reasonable effort to abate conditions that pose an excessive risk to the health or 

safety of the people in his custody, the fact that he fails to prevent actual harm does not 

mean that his response was unreasonable. See Dale v. Poston, 548 F.3d 563, 569 (7th 

Cir. 2008) (applying Eighth Amendment deliberate indifference standard). More 

specifically, the Constitution does not require a detention facility to provide "foolproof 

protection from infection" by a communicable disease. Forbes v. Edgar, 112 F.3d 262, 

266 (7th Cir. 1997) (applying Eighth Amendment standard); see also Smith v. 

Sangamon Cty. Sheriff's Dep't, 715 F.3d 188, 191 (7th Cir. 2013) (applying Eighth 

Amendment standard; "Prison and jail officials are not required to guarantee [a] 

detainee's safety." (internal quotation marks omitted)). That said, the ongoing risk to 

detained persons at the Jail, confirmed by increases in the number who have tested 

positive for coronavirus and the death of six detained persons from coronavirus disease

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as of April 23, is the backdrop against which the Court must view the Sheriff's conduct. 

The Court begins with the question of social distancing. As the plaintiffs see it, a 

policy that fails to fully implement social distancing throughout the Jail—which 

indisputably has not happened—cannot possibly be considered an objectively 

reasonable response to the coronavirus outbreak there. At least until full social 

distancing is enforced, the plaintiffs contend, detained persons face an unacceptably 

high risk of death or serious harm to their health.

The Sheriff's position is likewise simple and straightforward. His implementation 

of a coronavirus response plan at the Jail complies, he says, with the CDC Guidelines, 

and for this reason his actions have been objectively reasonable. The Guidelines, he 

points out, do not require social distancing in correctional facilities where it is not 

feasible given physical space, population, and staffing.8 The plaintiffs respond that the 

CDC Guidelines are not a surrogate for constitutional due process requirements. 

To support his position that compliance with the CDC Guidelines should 

effectively be dispositive, the Sheriff cites Carroll v. DeTella, 255 F.3d 470 (7th Cir. 

2001). There the Seventh Circuit held that a convicted prisoner could not show that 

prison officials had been deliberately indifferent to his lack of access to safe drinking 

water, because radium concentrations in the prison's drinking water were at a level that 

the U.S. Environmental Protection Agency deemed at the time to be safe. Id. at 472–

73. The court noted that because prisoners are not entitled to better quality of air, 

 8 Largely based on this aspect of the CDC Guidelines, the Court, in deciding the TRO 

motion, declined to require the Sheriff to enforce social distancing other than during the 

intake process, one very obvious point at which social distancing was not taking place. 

The TRO ruling, however, is neither final nor binding. The Court has reassessed the 

matter with the benefit of more thorough briefing and a more complete record.

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water, or environment than the general public, prisons do not have "a duty to take

remedial measures against pollution or other contamination that the agencies

responsible for the control of these hazards do not think require remedial measures." 

Id.

The Sheriff's reliance on Carroll is unavailing. First of all, the plaintiffs do not

suggest any entitlement on the part of pretrial detainees to conditions that exceed

health and safety standards applicable to the general public. But that aside, the CDC

Guidelines, unlike the EPA standards relied upon in Carroll, do not say or suggest that

compliance makes detained people safe. This is particularly so in view of the fact that

the Guidelines include feasibility qualifiers, particularly in relation to social distancing. 

See CDC Guidelines at 1, 3, 4, 11. Given this limitation, the Guidelines are not the

same as a safety standard set by a regulatory agency.

For their part, the plaintiffs suggest that the CDC Guidelines "shed no light" on 

whether the Sheriff's conduct has been objectively reasonable, in conformity with 

constitutional requirements. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. 

no. 64) at 10 (quoting Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 1996)).

The Court disagrees with this as well. The plaintiffs rely to a significant extent on 

Thompson. There the court, considering a claim of excessive force against a police 

officer—a claim also determined by a standard of objective reasonableness—stated that 

a policy on the use of force established by the police department was "completely 

immaterial [on] the question of whether a violation of the federal constitution has been 

established." Id. at 454. But later, in United States v. Brown, 871 F.3d 532 (7th Cir. 

2017), the Seventh Circuit clarified that Thompson simply means that a police 

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department's own policies do not establish the standard of what is reasonable for 

purposes of the Constitution. See id. at 537 ("Despite its strong language, Thompson

should not be understood as establishing a rule that evidence of police policy or 

procedure will never be relevant to the objective-reasonableness inquiry."). The court 

explained in Brown that, in the fact-intensive objective reasonableness analysis, 

evidence of national or widely used police policies could be relevant to helping a 

factfinder understand how a reasonable officer might have behaved under the 

circumstances that faced the defendant. Id. at 538. The court noted that the relevance 

of such policy evidence may turn on the "factual complexity" of the circumstances facing 

the defendant, and it may be less relevant in circumstances in which a factfinder can 

rely on common sense to determine the reasonableness of conduct. See id.

Here—unlike, perhaps, a relatively simple excessive force claim against an 

arresting officer—the circumstances facing the Sheriff in operating the Jail are quite 

complex. In these circumstances, guidance from an expert body like the CDC is 

beneficial in assessing the objective reasonableness of the Sheriff's conduct in the face 

of an ongoing outbreak. Indeed, in Forbes, the Seventh Circuit concluded that a 

prison's response to a case of active tuberculosis in its facility had been objectively 

reasonable in part because it had implemented and effected the recommendations of 

the CDC. Forbes, 112 F.3d at 267.

In sum, the CDC Guidelines are an important piece of evidence to consider in 

assessing the Sheriff's conduct, but they cannot be appropriately viewed as dispositive 

standing alone. Indeed, the CDC's recommendations on tuberculosis were not 

dispositive in Forbes; the court also considered other facts—noting, for example, that 

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the prison had only one case of active tuberculosis, "a far cry" from an outbreak. Id. As 

the Court has indicated, one reason why the CDC Guidelines are not appropriately 

viewed as dispositive of the plaintiffs' due process claims is the way in which they 

account for feasibility. Although feasibility may be a consideration in determining 

objective reasonableness, see Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010)

(decided under deliberate indifference standard), no case of which the Court is aware 

sets it as a dispositive factor. That, however, is exactly what the CDC Guidelines do, at 

least if read as the Sheriff suggests: they set a feasibility or practicality limitation on 

social distancing practices that they also call "a cornerstone of reducing transmission of 

respiratory diseases such as COVID-19." CDC Guidelines at 4. One can certainly 

understand why the CDC, a public health body, has acknowledged these sorts of limits 

upon its ability to prescribe guidelines for managing jails. But from a constitutional-law 

standpoint, it is difficult to believe that "do what you can, but if you can't, so be it"9

satisfies a jailer's constitutional obligation to take objectively reasonable steps to 

mitigate known risks to the life and health of people in his custody who are detained 

awaiting determination of their guilt or innocence.

Currently the Sheriff is housing hundreds of detained persons under conditions 

that make social distancing completely impossible or nearly so, or at least very difficult. 

Those for whom it is completely impossible are the detainees who are double celled. 

Those for whom it is at least very difficult and likely impossible are detainees who are 

housed in dormitory units that are not operating at a greatly reduced capacity. 

 9 The Court does not intend by this to suggest that this is the attitude of the Sheriff, the 

Executive Director, or their staff. Here the Court is characterizing a legal argument, not 

any person's behavior. 

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Specifically, a significant number of the existing dormitory units are operating at or 

greater than fifty percent capacity. Based on the record before the Court, social 

distancing is practically impossible in such units, and this cannot be completely 

attributed to detainee conduct or misconduct: if people are kept in groups in relatively 

close quarters, it is entirely predictable that they will have difficulty maintaining 

separation. 

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. The Court, however, must 

account for and give deference to the Sheriff's interest in managing the Jail facilities and 

to practices that are needed to preserve order and discipline and maintain security. See 

Kingsley, 135 S. Ct. at 2473; Bell, 441 U.S. at 547. These include documented 

considerations that make group or double celling appropriate or necessary. Feasibility 

limitations imposed by existing or otherwise available physical facilities are also taken 

into account, though this is not and cannot be a controlling factor. In this regard, it is 

worth noting that despite general statements by both sides to the contrary, it does not 

appear, based on the evidence, that the Sheriff has yet hit the feasibility limit on getting 

detainees out of group housing, even if one considers only the Jail complex itself. See 

Apr. 23, 2020 Hearing Tr. at 57:2–19 (testimony by Executive Director Miller referencing 

the possibility of further moves of detained persons out of dormitories).

Based on the evidence submitted, the Court finds that the plaintiffs are 

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reasonably likely to succeed on their contention that group housing or double celling of 

detained persons is objectively unreasonable given the immediate and significant risk to 

their life and health from transmission of coronavirus, except in the following situations:

• Persons detained in tiers or dormitories currently under quarantine following a 

positive test for the coronavirus within the tier or dormitory, as this makes it 

inadvisable to transfer them to other housing arrangements until the quarantine 

period has expired (what the Sheriff refers to as "quarantine tiers").

• Detained persons who have tested positive for the coronavirus and are under 

medical observation (what the Sheriff refers to as "isolation tiers"), a housing 

arrangement that the CDC Guidelines specifically authorize.

• Detained persons who have tested positive for coronavirus and are recovering 

(what the Sheriff refers to as "convalescent tiers"), which the CDC Guidelines 

likewise authorize.

• Double-celled or dormitory-housed detainees for whom there is a documented 

determination by a medical or mental health professional that single-celling 

poses a risk of suicide or self-harm.

• Persons detained housed in a dormitory unit that is at less than fifty percent 

capacity, which the record reflects will permit adequate social distancing.

• Detained persons committed, at the documented direction of a medical or mental 

health professional, to a group housing unit that is equipped for medical or 

mental health treatment, if but only if there is not available space in an 

appropriate housing or medical unit that permits full social distancing. 

Detained persons housed in any of the listed "acceptable" arrangements will, however, 

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need facemasks that are replaced at appropriate intervals and must be provided with 

instruction on how to use a facemask and the reasons for its use. They also must be 

instructed, at regular intervals, on the importance of social distancing.

The Court has omitted from the list above two categories of detained persons 

referenced in Executive Director Miller's affidavits and testimony: persons put into 

group housing or double celled because of conduct issues (including those who Miller 

referred to during his testimony as "our disorderly . . . population," Apr. 23, 2020 Tr. at 

52:6) or for reasons associated with the PREA. On the record as it currently stands, the 

plaintiffs have a reasonable likelihood of succeeding on a contention that it is objectively 

unreasonable to effectively preclude social distancing for such persons. With regard to 

PREA detainees, the proposition that they cannot be single celled is counterintuitive, to 

say the least.10 And with regard to individuals with conduct issues, without more the 

Court cannot say that there is an objectively reasonable basis to hold them in a setting 

that does not permit adequate social distancing. With regard to detained persons in 

these categories, the Court is willing to entertain a properly-supported request by the 

Sheriff to include them in the category of persons who may be appropriately detained in 

group housing, perhaps with appropriate distancing.

Beyond what the Court has described, the plaintiffs have not established a 

reasonable likelihood of success on their due process claims. Specifically, the Court is 

not prepared to say that it is constitutionally inappropriate, in light of the coronavirus 

pandemic, to detain persons in the Jail in any form of group housing or to detain them in 

 10 This is so whether these persons are alleged perpetrators or likely victims, which is 

not clear from the record.

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single cells given the likelihood of multiple uses of common facilities and areas. This 

would be tantamount to saying that, in the present circumstances, the Constitution 

prohibits detaining people in jails. The plaintiffs have not established, and are not likely 

to be able to establish, that this is so.

Next, the Court addresses the plaintiffs' contentions regarding advance 

identification of detained persons who are especially vulnerable to severe illness or 

death if they contract the coronavirus. The Court remains unpersuaded that the 

plaintiffs have a reasonable likelihood of showing that this is objectively unreasonable 

and thus violative of those class members' constitutional rights. The plaintiffs' experts 

opined that screening is important so that vulnerable individuals can be monitored for 

symptoms. Miller explained, however, that any person with symptoms consistent with 

coronavirus disease is already provided immediate screening and treatment, and 

medical professionals treating such a person will have immediate access to his or her 

medical records (which include an inventory of medical conditions reported by the 

detained person upon intake or thereafter). Though, as the Court stated in its TRO 

decision, advance identification of persons with heightened vulnerability would appear 

to be a good practice and perhaps a best practice, the plaintiffs have not shown that 

failing to do so is, under the circumstances, objectively unreasonable.

Finally, the Court addresses the plaintiffs' request for extension of the TRO. The 

TRO required the Sheriff to establish and implement a policy regarding coronavirus 

testing; provide cleaning supplies to detainees and staff and soap and/or hand sanitizer 

to detained persons; establish and implement a policy regarding sanitization of 

frequently touched surfaces; and provide facemasks to all detained persons who are 

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quarantined. Mays, 2020 WL 1812381, at *14–15. The plaintiffs ask the Court to 

convert these requirements into a preliminary injunction. The Sheriff argues that the 

Court need not extend or convert the TRO because he has complied with it and 

continues to do so.

A court "retains the power to grant injunctive relief" even after the defendant 

ceases the allegedly unlawful conduct. Milwaukee Police Ass'n v. Jones, 192 F.3d 742, 

748 (7th Cir. 1999); see also United Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 563 F.3d 

257, 275 (7th Cir. 2009). The moving party must show that such relief still is required. 

Milwaukee Police Ass'n, 192 F.3d at 748. "The necessary determination is that there 

exists some cognizable danger of recurrent violation, something more than the mere 

possibility which serves to keep the case alive." Id. (quoting United States v. W. T. 

Grant Co., 345 U.S. 629, 633 (1953)); see also United Air Lines, Inc., 563 F.3d at 275 

("The court may consider how easily former practices might be resumed at any time in 

determining the appropriateness of injunctive relief."). Where the cessation of an 

allegedly wrongful activity occurred "only after a lawsuit has been filed," a district court 

is "within its discretion" to find that the cessation was "not voluntary, and that even a 

voluntary cessation is not determinative." Id.

Although the Sheriff appears to have complied with the TRO, the Court cannot 

say that the constitutional violations the Court sought to address will not recur absent an 

extension of the TRO's requirements. The Sheriff's actions to develop policies on 

sanitation and coronavirus testing, distribute soap and cleaning supplies, and distribute 

facemasks to detained persons who are quarantined—at least those done after the April 

9 TRO—cannot be said to have been undertaken entirely voluntarily. Rather, they were 

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done in response to the TRO, and there is at least some evidence of problems in 

carrying out the TRO's directives. In addition, without a court order, there is at least a 

possibility that these important measures could slip to the wayside, despite the Sheriff's 

best intentions, as he works to manage the complexities of the Jail during this public 

health crisis. For these reasons, the Court concludes that it is appropriate to convert 

the TRO to a preliminary injunction. 

3. Transfer

The plaintiffs next request the transfer of members of subclass B out of the Jail 

"to another safe location in the Sheriff's custody." Pls.' Reply in Supp. of Renewed Mot. 

for Prelim. Inj. (dkt. no. 64) at 2. Until recently, they primarily suggested that such a 

location could include "home confinement or electronic home monitoring." Pls.' Resp. to 

April 3, 2020 Ord. (dkt. no. 26-1) at 17; see also Pls.' Renewed Mot. for Prelim. Inj. (dkt. 

no. 55) at 16–17 (requesting transfer without specifying the location to which detained 

people should be transferred). But in their most recent reply brief, they suggest that this 

also could include transfer to "another correctional space, a hospital or medical facility, 

a clinic, [or] administrative furlough." Pls.' Reply in Supp. of Renewed Mot. for Prelim. 

Inj. (dkt. no. 64) at 29. The Sheriff contends that, under the PLRA, only a three-judge 

court may order such transfers and that, regardless, he lacks the authority to transfer 

detainees to electronic home monitoring. The Court starts with the threshold issue: 

whether this Court may, on its own, order the transfer of detained persons as proposed 

by the plaintiffs.

As indicated, under the PLRA, "[i]n any civil action in Federal court with respect 

to prison conditions, a prisoner release order shall be entered only by a three-judge 

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court." 18 U.S.C.§ 3626(a)(3)(B). The PLRA defines "prisoner release order" 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." 18 U.S.C. § 3626(g)(4). It 

defines "prison" as "any Federal, State, or local facility that incarcerates or detains 

juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent 

for, violations of criminal law." Id. § 3626(g)(5). This definition plainly includes the Jail.

The plaintiffs contend that the transfer of detained persons that they seek would 

not be a prisoner release order because it would simply involve moving them from one 

place under the Sheriff's control to another place under his control. That misses the 

mark. Transfers to home confinement, administrative furlough, or electronic home 

monitoring in particular—which, at least up until they filed their reply brief, are the 

primary forms of transfer the plaintiffs have requested—would constitute prisoner 

release orders because they would have "the purpose or effect of reducing [the]

population" of the Jail. Id. § 3626(g)(4); Money, 2020 WL 1820660, at *12 (transfers of 

prisoners to temporary medical furlough or home detention within the state's custody 

would constitute prisoner release orders because "the PLRA does not focus on 

custodial status under state law, nor does it say anything about whether the reduction of 

population is temporary or permanent."). Population reduction is the "whole point" of 

the transfers the plaintiffs seek—they propose to prevent or curb the spread of 

coronavirus to detained persons, and in particular those who are vulnerable, by 

reducing the Jail's population. See id. at *13.

The transfers sought by the plaintiffs would constitute prisoner release orders for 

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an additional reason: they would direct the release of detained persons out of the Jail. 

See 18 U.S.C. § 3626(g)(4). The plaintiffs contend that, for people confined at home at 

the direction of a state authority, a home may amount to a prison within the meaning of 

the PLRA. To be sure, the list of institutions that qualify as prisons under the PLRA is 

not limited to those specified in the statute. Witzke v. Femal, 376 F.3d 744, 753 (7th 

Cir. 2004) (confinement in a drug rehabilitation halfway house qualified as confinement 

in a correctional facility under the PLRA). But, as defined by the PLRA, a prison is a 

facility. Id. § 3626(g)(5). The common definition of a facility is "a building or 

establishment that [provides a service or feature of a specified kind]."11 That does not 

appear to cover a person's home; a home, even one in which a person is residing 

subject to a court or law enforcement authority's order, is not a place that provides 

specified services or features.12 It is hard to see the PLRA's definition of "prison" 

stretching that far. In addition, even if home confinement and/or electronic home 

monitoring constitutes imprisonment under state law (an issue the Court need not 

decide), an order mandating the transfer of prisoners out of the Jail to confinement in 

their homes likely would constitute a prisoner release order because it would "direct[]

the release [of prisoners] from . . . a prison" to another place of confinement, 18 U.S.C. 

§ 3626(g)(4).

The plaintiffs, however, appear to take the position even if prisoner transfers 

 11 Facility, Oxford English Dictionary Online, 

https://www.oed.com/view/Entry/67465?redirectedFrom=facility& (last visited April 26, 

2020). 12 Home, Oxford English Dictionary Online, 

https://www.oed.com/view/Entry/87869?rskey=8yYRsS&result=1&isAdvanced=false

(last visited April 26, 2020). 

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have the effect of reducing the prison population, a single-judge court may order them 

where the basis for the order is not crowding or overcrowding. They may be correct. 

One of the PLRA's requirements for the entry of a prisoner release order by a threejudge panel is that "crowding is the primary cause of the violation of a Federal right." 18 

U.S.C. § 3626(a)(3)(E)(i). Some courts have concluded that single-judge courts can 

order the transfers of prisoners, at least to other facilities, where the purpose of the 

transfer involves the prisoners' medical needs or vulnerabilities. See Plata v. Brown, 

No. C01-1351 TEH, 2013 WL 12436093, at *9–10, 15 (N.D. Cal. June 24, 2013)

(ordering the transfer to other institutions of certain medically high-risk categories of 

prisoners out of two prisons where they were at risk of contracting Valley Fever, a 

disease not spread through human-to-human contact); Reaves v. Dep't of Correction, 

404 F. Supp. 3d 520, 523–24 (D. Mass. 2019) (denying a stay pending appeal and 

explaining why the PLRA permitted the court to order the transfer of a quadriplegic 

prisoner to a medical facility equipped to care for him in Reaves v. Dep't of Correction, 

392 F. Supp. 3d 195 (D. Mass. 2019), appeal docketed, No. 19-2089 (1st Cir. Nov. 4, 

2019)); see also Money, 2020 WL 1820660, at *12 n.11 (suggesting that a single-judge 

courts can order prisoner transfers for reasons other than crowding). This conclusion 

seems correct: because three-judge courts can order prisoner releases only where 

crowding is the primary cause of the violation of a federal right, 18 U.S.C. § 

3626(a)(3)(E)(i), to ensure the vindication of people in custody's constitutional rights, the 

PLRA must be read to permit courts to order transfers where some other condition 

causes the violation of a constitutional right. See Plata, 2013 WL 12436093, at *9–10.

But a single judge's ability to order a prisoner transfer for reasons other than 

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crowding makes no difference in this case: the primary basis for the transfers the 

plaintiffs request is to reduce crowding in the Jail. See Money, 2020 WL 1820660, at 

*13 (plaintiffs' suggestion that they did not seek a remedy for overcrowding 

"contradict[ed] the allegations of their complaint and their entire theory of the case"). To 

put it in simple terms, one of plaintiffs' core contentions is that their constitutional rights 

are being violated because social distancing, which they contend is crucial to protect 

their health, has not been or cannot be accomplished at the Jail. Social distancing is 

essentially the converse of overcrowding. Thus it is apparent that the plaintiffs' request 

for prisoner transfers or releases is based on overcrowding. 

To be more specific, one of the central allegations in the complaint is that the 

crowded conditions in the Jail "ensure the continued[,] rapid, uncontrolled spread of 

COVID-19 within the Jail and beyond—because the Jail is not and cannot be isolated 

from the larger community" and "because the Jail is a crowded, congregate 

environment." Compl. (dkt. no. 1) ¶ 2; see also, e.g., id. at ¶¶ 20, 25–26, 30–35, 37–41, 

46, 51. The plaintiffs hinge their legal arguments on the contention that "without a 

reduction of the Jail's population, the lives and safety of the persons confined there 

cannot be reasonably protected" because "social distancing is not possible with the 

current jail population." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 

64) at 1; see also, e.g., Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 1 ("The virus 

is spreading rapidly in the jail . . ., and that is not surprising: People are sleeping within 

three feet of each other, eating and using showers in close proximity to each other, and 

touching the same surfaces."). They contend that the imperative of social distancing is 

an undisputed "medical necessity" and that "[a]ll of the evidence in this record supports 

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that proposition." Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 3. 

As indicated, they cite evidence from a range of sources—including the CDC, the 

governor of Illinois, the City of Chicago, and medical and epidemiological experts—

reflecting that social distancing is among the most effective and important interventions 

to reduce the spread of coronavirus and protect public health right now. Id. at 3–5; see 

also, e.g., Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 4–8. And, crucially, they 

contend that social distancing at the jail is impossible because of its current population 

levels. Id. at 10 ("[I]f the current population of a jail unavoidably creates intolerable risk 

to life and health then the current population must change."); see also id. at 10–13; Pls.' 

Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 6–8. In short, the 

plaintiffs are requesting transfers because social distancing is impossible; with that in 

mind, it is incongruous to contend that crowding is not the basis or primary basis for 

seeking compelled transfers. See Money, 2020 WL 1820660, at *13.

Citing United States v. Cook County, 761 F. Supp. 2d 794 (N.D. Ill. 2000), the 

plaintiffs contend that the PLRA applies only to prisoner release orders that are 

"explicitly related to population caps," not to all such orders stemming primarily from 

crowding. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 32 (citing 

id. at 796 –97). That interpretation stretches the statute's language too far. Even if 

"[s]ponsors of the PLRA were especially concerned with courts setting 'population 

caps,'" Plata, 2013 WL 12436093, at *10 (quoting Gilmore v. California, 220 F.3d 987, 

998 n. 14 (9th Cir. 2000)), the PLRA's text does not limit prisoner release orders issued 

by three-judge courts to only orders that set population caps, see 18 U.S.C. § 

3626(a)(3)(E). United States v. Cook County does not suggest otherwise. The threeCase: 1:20-cv-02134 Document #: 73 Filed: 04/27/20 Page 73 of 87 PageID #:2006
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judge court in that case found "that overcrowding [was] a primary cause of 

unconstitutional conditions at the jail" because it caused, among other things, 

"excessive force by guards, grossly unsanitary and unhealthy conditions, and grossly 

inadequate medical (including mental-health) care." Cook County, 761 F. Supp. 2d at

797. Although these conditions might have existed even without overcrowding, 

overcrowding made them worse. Id. at 797–98. Thus the purpose of the prisoner 

release order in Cook County was not merely to set prison caps but, rather, to address 

constitutional violations caused primarily by overcrowding. See id. The same is true in 

this case: the severe medical risks posed by coronavirus would exist even if the Jail 

was not crowded, but the plaintiffs contend the crowding at the Jail significantly 

enhances those risks and makes the outbreak more challenging to control. The 

purpose of a transfer order would be to address alleged constitutional violations 

stemming from coronavirus due to crowding in the Jail, and that is the type of order than 

only a three-judge court may issue. 

4. Three-judge court

The plaintiffs also have asked the Court to convene a three-judge court "to 

consider whether and to what extent to enter a prisoner release order." Pls.' Reply in 

Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 2. Under the PLRA, "[i]n any civil 

action in Federal court with respect to prison conditions, a prisoner release order shall 

be entered only by a three-judge court." 18 U.S.C.§ 3626(a)(3)(B). The Sheriff 

contends that the requirements for convening a three-judge court have not been met.

The PLRA provides that no court may enter a prisoner release order unless two 

requirements are met. 18 U.S.C. § 3636(a)(3)(A). First, a court must have "previously 

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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." Id. § 

3636(a)(3)(A)(i) (the "previous order requirement"). In addition, the defendant must 

have "had a reasonable amount of time to comply with the previous court orders." Id. § 

3636(a)(3)(A)(ii) (the "reasonable time requirement"). 

Together, these requirements ensure that a three-judge court's prisoner release 

order is a "last resort remedy." Brown, 563 U.S. at 514. A party requesting a prisoner 

release order and the convening of a three-judge court must file "materials sufficient to 

demonstrate" that both requirements have been met. Id. § 3636(a)(3)(C). A federal 

judge can also request sua sponte the convening of a three-judge court if both 

requirements are met. Id. § 3636(a)(3)(D). The judge need not consider the likelihood 

of whether a three-judge court would issue a prisoner release order. See Plata v. 

Schwarzenegger, No. C01-1351-TEH, 2007 WL 2122657, at *1 (N.D. Cal. July 23, 

2007). 

a. Previous order requirement

The Court starts with the previous order requirement. It previously entered an 

order for less intrusive relief by issuing the TRO. Mays, 2020 WL 1812381, at *14–16. 

The Sheriff contends that the TRO does not satisfy the PLRA's previous order 

requirement because it did not include an order requiring social distancing. In the TRO 

decision, the Court found that the plaintiffs had failed "to show a reasonable likelihood of 

success on their contention that the Sheriff is acting in an objectively unreasonable 

manner by failing to mandate full social distancing." Id. at *10. The Court declined to 

order relief with respect to social distancing throughout the Jail but required the Sheriff 

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to enforce social distancing in connection with the new detainee intake process. Id. at 

*14. 

The previous order requirement is "satisfied if the court has entered one order 

[that] 'failed to remedy' the constitutional violation." Brown v. Plata, 563 U.S. at 514. 

Neither the statute nor the relevant case law suggests that a court must attempt all 

possible steps short of release before requesting the convening of a three-judge court. 

See 18 U.S.C. § 3636; Brown, 563 at 514–16. And the PLRA does not require a 

previous order involving a particular type of remedy; instead, it simply requires a 

previous order that attempted but failed to remedy the constitutional deprivation itself. 

See id. In Brown, the Supreme Court affirmed an order of a three-judge court 

mandating a population limit for California's prison system as a remedy for constitutional 

violations in two class actions, one involving a class of prisoners with serious mental 

disorders and the other involving prisoners with serious medical conditions. Id. at 499, 

502. The Court found that district courts "acted reasonably when they convened a 

three-judge court," despite recent, ongoing plans to address the at-issue constitutional 

violations, because they "had a solid basis to doubt" that the "additional efforts . . . 

would achieve a remedy." Id. at 516. 

In the TRO, the Court ordered relief less intrusive than a prisoner release order. 

Specifically, it required the Sheriff to establish and implement policies regarding 

coronavirus testing and sanitation in the Jail, implement social distancing during the 

new detainee intake process, provide adequate soap and/or hand sanitizer and 

sanitation supplies, and provide facemasks to all detained persons who are 

quarantined. Mays, 2020 WL 1812381, at *14–15. Because the TRO has not remedied 

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the overall claimed constitutional violation—deficient conditions in the Jail during a 

pandemic—it satisfied the PLRA's previous order requirement.

b. Reasonable time requirement

Additionally, before a three-judge court is convened under the PLRA, the 

defendant must have "had a reasonable amount of time to comply with the previous 

court orders," as indicated. Id. § 3636(a)(3)(A)(ii). This provision "requires that the 

defendant have been given a reasonable time to comply with all of the court's orders." 

Brown, 563 U.S. at 514 (emphasis added). In some situations, a court may need "to 

issue multiple orders directing and adjusting ongoing remedial efforts" while it "attempts 

to remedy an entrenched constitutional violation through reform of a complex 

institution." Id. at 516. "Each new order must be given a reasonable time to succeed, 

[and] reasonableness must be assessed in light of the entire history of the court's 

remedial efforts." Id. But a court may request the convening of a three-judge court 

even while its remedial efforts are ongoing; otherwise, a court unreasonably would have 

"to impose a moratorium on new remedial orders" before a three-judge court considers 

the issuance of a prisoner release. Id.

In Brown, the Supreme Court found that defendants in the two consolidated 

cases had reasonable time to comply with court orders where one court had "engaged 

in remedial efforts" for five years and the other court had done so for twelve years. Id. 

Remedial efforts were ongoing when the district courts requested three-judge courts, 

but those ongoing efforts merely attempted "to solve the crisis" through the same "basic 

plan[s]" as earlier efforts. Id. at 515. In one case, a special master the district court 

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appointed to oversee remedial matters had issued over seventy remedial orders. Id. 

The courts had no "assurance[s] that further, substantially similar efforts would yield 

success absent a population reduction." Id. Indeed, advances that had been made in 

one case were "'slip-sliding away' as a result of overcrowding." Id. (quoting courtappointed special master). 

The plaintiffs contend that the Sheriff has had a reasonable time to comply with 

the Court's previous order. They have requested a preliminary injunction ordering social 

distancing, but, in light of the urgency of the situation, they also have requested the 

convening of a three-judge court to consider the question of prisoner release. The 

plaintiffs appear to contend that if an injunction directing social distancing does not 

remedy the alleged constitutional violations, then only the immediate release of 

prisoners by a three-judge court will achieve a remedy, so a three-judge court needs to 

be ready to issue a ruling as soon as that time comes. The Sheriff contends that he has 

not reasonably had time to comply with any such order because the Court has not 

directed him to implement social distancing throughout the Jail.

The Court recognizes that determination of what amounts to a "reasonable time" 

to comply with a court's previous orders may depend on the circumstances, and here 

the circumstances are extraordinary, involving an infectious virus that can be 

transmitted quickly from person to person. So here, perhaps, a "reasonable time" may 

amount to days or a small number of weeks, not years as may be the case in other 

situations. Undue delays in responding to the coronavirus pandemic may place 

detained persons' health and lives in imminent danger. 

Unlike in Brown, however, the ongoing remedial efforts in this case might remedy 

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the ongoing constitutional violation—which, to be clear, involves the objective 

reasonableness of the Sheriff's response to the coronavirus outbreak, not existence of 

coronavirus itself—if given adequate time. The Sheriff has offered evidence that may 

be understood to suggest that he is making a substantial effort to comply with the 

Court's order and attempt to improve the conditions of confinement at the Jail in 

response to the coronavirus pandemic. As detailed earlier in this opinion, he has 

complied with the TRO by implementing social distancing at intake; developing and 

implementing a plan to distribute soap, sanitizer, and cleaning suppliers more 

frequently; and providing facemasks to detained persons housed on tiers under 

quarantine. In addition, he has made efforts to spread out detainees within the Jail, 

even though the TRO did not mandate it. As detailed earlier, he has opened up 

previously closed units, doubled the number of persons housed in single-occupancy 

cells, attempted to ensure that detained persons are assigned beds in dorm units that 

are spaced more than six feet apart, and adopted various practices to encourage 

detained persons to practice social distancing in dorms and in common areas. As the 

Court has explained, it believes that the narrowly tailored relief it is ordering via this 

opinion appropriately addressed the claimed constitutional violations on which the 

plaintiffs have shown a likelihood of success. Unlike in Brown, the additional relief 

ordered in this decision is not based on the same "basic plan" as earlier efforts but 

rather takes a different and focused approach. Brown, 563 U.S. at 515. In short, it will 

require preventative public health measures that the Court has not previously ordered 

and that the Sheriff has not shown he has implemented. 

Further, although the PLRA's previous order requirement refers to a single order, 

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its reasonable time requirement uses the plural "orders." Compare 18 U.S.C. § 

3626(a)(3)(A)(i) with id. § 3626(a)(3)(A)(ii); see also Brown, 563 U.S. at 514. Nothing in 

the statute or the relevant case law indicates that a court must convene a three-judge 

panel after issuing only one order. Rather, the case law reflects that a court can, and 

perhaps in some circumstances should, make additional efforts beyond a single TRO 

before convening a three-judge court to consider ordering the release of imprisoned or 

detained persons. See id. (releasing prisoners is a "last resort remedy"). This seems 

particularly true where, as here, a Court has a basis on which to issue an additional 

order that is not "substantially similar" to its previous order and thus can attempt a new 

approach to remedying the constitutional violation that might "yield success." Cf.

Brown, 563 U.S. at 515. 

For these reasons, the Court is not persuaded that it has given its less-intrusive 

orders "a reasonable time to succeed," Brown, 563 U.S. at 516; that the Sheriff has 

"reasonable amount of time to comply" with those orders, 18 U.S.C. § 3636(a)(3)(A)(ii); 

or that the Sheriff could have reasonable time to comply in light of the further efforts the 

Court is taking in this order to remedy the claimed constitutional violations. The Court 

concludes that the PLRA's reasonable time prerequisite for the convening of a threejudge court has not yet been satisfied. 

For these reasons, the Court declines to request the convening of a three-judge 

court. 13

 13 As the Court has previously advised the parties, however, immediately after the 

issuance of the TRO, the Court advised the chief circuit judge of the pendency of the 

case and the potential need, at some point, to convene a three-judge court.

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5. Irreparable harm

In addition to showing a likelihood of success on the merits, the plaintiffs must 

show that they will likely suffer irreparable harm without a preliminary injunction. 

Whitaker, 858 F.3d at 1044. Irreparable harm is "harm that cannot be repaired and for 

which money compensation is inadequate." Orr v. Shicker, 953 F.3d 490, 502 (7th Cir. 

2020) (internal quotation marks omitted). The plaintiffs must show more than a "mere 

possibility" of harm but not that harm has already occurred or is certain to occur. 

Whitaker, 858 F.3d at 1045. "[A] remedy for unsafe conditions need not await a tragic 

event.” Helling v. McKinney, 509 U.S. 25, 33 (1993).

The plaintiffs have satisfied this requirement. They have shown a likelihood that, 

without additional measures to expand and enforce social distancing and the 

continuation of measures aimed at enhancing sanitation of surfaces within the Jail and 

otherwise curbing the spread of coronavirus among detained persons, some of the 

class members will contract the virus. If they contract coronavirus, class members—

particularly those over the age of sixty-five or with certain preexisting health 

conditions—risk severe health consequences, including death. These grave risks to 

health are not an insignificant possibility for the class members, all of whom are live in 

the Jail's congregate environment, where the coronavirus has been spreading for weeks 

and where detained persons—even those who sleep their own cells—share spaces like

common areas and showers. Therefore, the plaintiffs have adequately shown a 

likelihood that they will suffer irreparable harm without a preliminary injunction.

6. No adequate remedy at law 

The plaintiffs also must show that they have no adequate remedy at law should 

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the preliminary injunction not issue. Whitaker, 858 F.3d at 1046. They are not required 

to show that a remedy is "wholly ineffectual" but rather "that any award would be 

seriously deficient as compared to the harm suffered." Id. Where harm cannot be 

practicably remedied by monetary damages, there is no adequate legal remedy. See

id.; Foodcomm Int'l v. Barry, 328 F.3d 300, 304 (7th Cir. 2003); see also W.S.R. v. 

Sessions, 318 F. Supp. 3d 1116, 1126–27 (N.D. Ill. 2018) (no adequate remedy of law 

to address harm from prolonging child's separation from parent). The plaintiffs have 

clearly shown that the risk of harm to their health and possibly their lives cannot be fully 

remedied through damages, and therefore they have shown that they have no adequate 

remedy at law. 

7. Balancing of harms

"Once a moving party has met its burden of establishing the threshold 

requirements for a preliminary injunction, the court must balance the harms faced by 

both parties and the public as a whole." Whitaker, 858 F.3d at 1054. The nature of the 

balancing analysis depends on the moving party's likelihood of success: the higher the 

likelihood, the more the balance tips in favor of granting injunctive relief. Id. Before 

issuing an injunction ordering a defendant to perform an affirmative act, which can 

impose "significant burdens on the defendant," a court must give "careful consideration 

[to] the intrusiveness of the ordered act, as well as the difficulties that may be 

encountered in supervising the enjoined party's compliance with the court's order." 

Kartman, 634 F.3d at 892 (discussing certification of a class seeking mandatory 

injunctive relief).

The Sheriff argues that the balance of harms weighs against issuing a 

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preliminary injunction because he is doing the best he can to contain the spread of 

coronavirus at the Jail, including, he contends, following the CDC Guidelines to the 

greatest extent possible. He argues that an order requiring him to implement more

health and protective measures would be disruptive to his ongoing and persistent efforts

to protect detainees from coronavirus. He also argues that the Court should defer to his 

expertise and judgment regarding the best policies and practices to implement at the 

Jail, particularly in light of the fundamental need for him to maintain internal security and 

order. See Bell, 441 U.S. at 547–48. The plaintiffs contend that the risk of severe 

health consequences or death to the class members is so grave that it tips the balance 

of harms in favor of granting a preliminary injunction. Additionally, the plaintiffs argue 

the public's interest in containing outbreaks of coronavirus favors granting injunctive 

relief.

The Court concludes that the balance favors granting preliminary injunctive relief 

to the plaintiffs to the limited extent contemplated by this order. First, as detailed above, 

the plaintiffs have presented ample evidence of conditions that pose an unreasonable 

risk of serious harm to the class members' health and, despite the laudable strides the 

Sheriff has made since the Court issued the TRO, at least some shortcomings in the 

Sheriff's mitigation of that risk. This evidence tips the balance in favor of injunctive relief 

because, as the Court has explained, the plaintiffs have far surpassed their burden of 

demonstrating a "better than negligible" likelihood of success on the merits. Whitaker, 

858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). The 

interest of the public in containing the spread of coronavirus further tips the balance in 

favor of injunctive relief.

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As it did in issuing the TRO, the Court acknowledges the deference owed to the 

Sheriff in the operation of the Jail and in his development of internal procedures to 

maintain safety, order, and security and to response to this severe crisis. The Court 

recognizes the immense amount of time and work that the Sheriff and his staff have 

spent trying to respond to this crisis. The Court further recognizes that compliance with 

judicial orders impose burdens on the Sheriff and his staff, in no small part by requiring 

them to devote some of their limited time and resources to following a court's directives. 

The Court has taken these considerations into account in ordering the limited 

relief described in this order. It has ensured that the relief is narrowly drawn, extends 

no further than necessary, and is the least intrusive means necessary to address the 

shortcomings discussed earlier in this opinion. The Court has tailored the relief to 

account for deference to the Jail's ongoing planning and efforts to address the risks 

associated with the coronavirus outbreak. The Court also has, as indicated earlier, 

taken into account the enhanced requirements for issuing what it has referred to as a 

"mandatory injunction." And the Court has concluded that it will not encounter 

significant obstacles in supervising the order despite its mandatory nature. Despite 

these considerations, the risk to the health and safety of detainees and others is 

sufficient to permit and require preliminary injunctive relief. 

C. Preliminary injunctive relief

For the reasons stated above, the plaintiffs have met the criteria for a preliminary 

restraining order with regard to at least parts of Count 1 of their complaint. The Court 

orders as follows and will also include this in a separate preliminary injunction order 

issued under Federal Rule of Civil Procedure 65(d).

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• The Sheriff shall maintain and carry out a policy requiring prompt coronavirus 

testing of: (1) detained persons who exhibit symptoms consistent with 

coronavirus disease, and (2) at medically appropriate times, detained persons

who have been exposed to others who have exhibited those symptoms or have 

tested positive for coronavirus. With regard to the category (2), the Sheriff must 

acquire and maintain sufficient testing materials so that determination of the 

appropriateness of testing such persons is made pursuant to medical and public 

health considerations and not the availability of testing materials.

• The Sheriff shall enforce social distancing during the new detainee intake 

process, including continued suspension of the use of bullpens and other 

multiple-person cells or enclosures to hold new detainees awaiting intake.

• The Sheriff shall provide soap and/or hand sanitizer to all detainees in quantities 

sufficient to permit them to frequently clean their hands. 

• The Sheriff shall provide sanitation supplies sufficient and adequate to enable all 

staff and detainees to regularly sanitize surfaces and objects on which the virus 

could be present, including in all areas occupied or frequented by more than one 

person (such as two-person cells, as well as bathrooms, showers, and other 

surfaces in common areas). The Sheriff shall also maintain and carry out a 

policy requiring sanitization between all uses of frequently touched surfaces and 

objects as well as monitoring and supervision to ensure that such sanitization 

takes place regularly.

• The Sheriff shall provide facemasks to all detained persons who are 

quarantined—i.e., those who have been exposed to a detained person who is 

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symptomatic (even if not coronavirus-positive). The facemasks must be replaced 

at medically appropriate intervals, and the Sheriff must provide the users with 

instruction on how to use a facemask and the reasons for its use.

• The Sheriff shall establish by no later than April 29, 2020 and shall put into effect

by no later than May 1, 2020 a policy precluding group housing or double celling 

of detained persons, except in the following situations:

o Persons detained in tiers or dormitories currently under quarantine 

following a positive test for the coronavirus within the tier or dormitory 

("quarantine tiers");

o Detained persons who have tested positive for the coronavirus and are 

under medical observation ("isolation tiers");

o Detained persons who have tested positive for coronavirus and are 

recovering ("convalescent tiers");

o Double-celled or dormitory-housed detainees for whom there is a 

documented determination by a medical or mental health professional that 

single-celling poses a risk of suicide or self-harm;

o Persons detained housed in a dormitory unit that is at less than fifty 

percent capacity; and

o Detained persons committed, at the documented direction of a medical or 

mental health professional, to a group housing unit that is equipped for 

medical or mental health treatment, if but only if there is not available 

space in an appropriate housing or medical unit that permits full social 

distancing. 

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• Detained persons housed in any of the listed "acceptable" arrangements must be 

provided with facemasks that are replaced at medically appropriate intervals. 

The detained persons must be provided with instruction on how to use a 

facemask and the reasons for its use. They also must be instructed, at regular 

intervals, on the importance of social distancing.

• On May 1, 2020, the Sheriff shall file a report regarding his compliance with the 

terms of the preliminary injunction.

Finally, the Court will entertain submissions by the parties regarding the duration 

of the preliminary injunction, in particular the social distancing provisions. Typically, a 

preliminary injunction lasts until the trial on the merits, but the order the Court is entering 

is predicated on an underlying condition—the ongoing pandemic—that, one can hope, 

will not last indefinitely. Under ordinary circumstances, there is nothing constitutionally 

inappropriate about housing detained persons in groups and allowing them to come into 

contact with each other. Currently we are not living in ordinary circumstances—hence 

the preliminary injunction—but once matters return to something approaching normal, it 

may be appropriate to loosen the requirements of the injunction. The Court (either the 

emergency judge or the assigned judge) will address this with the parties at a future 

date.

Conclusion

The Court grants the plaintiffs' motion for preliminary injunction in part and denies 

it in part as set out in this Memorandum Opinion and Order [dkt. no. 55].

________________________________

MATTHEW F. KENNELLY

Date: April 27, 2020 United States District Judge

Case: 1:20-cv-02134 Document #: 73 Filed: 04/27/20 Page 87 of 87 PageID #:2020