IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ANTHONY MAYS, et al., 

Plaintiffs, 

v. 

THOMAS J. DART, Sheriff of Cook County, 

Defendant. 

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Case No. 20-CV-2134 

Hon. Matthew F. Kennelly, 

in his capacity as Emergency 

Judge 

Hon. Robert W. Gettleman, 

District Court Judge 

Hon. M. David Weisman, 

Magistrate Judge 

DEFENDANT’S PARTIAL BRIEF IN OPPOSITION TO PLAINTIFFS’ RENEWED 

MOTION FOR PRELIMINARY INJUNCTION AND EXPEDITED DISCOVERY 

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

Sheriff of Cook County, and for his Partial Brief in Opposition to Plaintiff’s Renewed 

Motion for Preliminary Injunction and Expedited Discovery [Dkt. 55], states as follows1: 

INTRODUCTION 

In response to every filing by Sheriff Dart, Plaintiffs assert a different heretofore 

unmentioned alleged constitutional violation. Each of these complaints amounts to 

nothing more than a disagreement about the policies the Sheriff has chosen to 

implement based on their demand for unrealistic and unattainable outcomes that the 

world’s renowned medical experts and epidemiologists have yet to achieve. Without 

voicing any objection to the latest testing, intake, and sanitation policies implemented at 

the Jail [Dkt. 55, p.4], Plaintiffs now turn their sights on social distancing, demanding 

that the Sheriff comply with standards that far exceed his constitutional obligations, but 

with which he nevertheless complies. 

The Sheriff’s frustration cannot be overstated: Plaintiffs persist in pursuing this 

unnecessary litigation that consumes valuable resources and pulls the Jail and Office 

staff off of the front lines of managing the coronavirus pandemic to wage a dispute that 

long ago could have been avoided with a cooperative and good faith effort to address 

their concerns with the Office before filing this lawsuit. The suggestion that the Sheriff 

is purposefully, or even inadvertently, withholding any effort to protect detainees and 

 

1 Sheriff Dart does not waive and reserves the right to make any further legal arguments in 

response to Plaintiff’s Motion should it survive beyond the Court’s ruling on his objections on 

the following threshold dispositive issues. 

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his own Jail staff is belied by the extraordinary efforts taken over the past two months 

to identify and contain the spread of infection, as well as the quantifiable success those 

efforts have had. The prevention policies in place at the Jail have been thorough with 

data showing that COVID-19 cases at the Jail are under control and are being effectively 

managed. With this partial Brief in Opposition to Plaintiffs’ Motion for Preliminary 

Injunction, exposing the structural and substantive legal failures of Plaintiffs’ claims, 

the Sheriff hopes at last to put an end to this litigation. 

I. UPDATED REPORT ON PROGRESS AT THE JAIL 

In supplement to the report provided to the Court at the April 15 hearing, the 

Sheriff provides this update on progress at the Jail. With regard to the effectiveness of 

the numerous measures taken to reduce the spread of COVID-19 at the jail, the present 

data is encouraging. Most significantly, the jail population has been substantially 

reduced over the last month. See Exh. A, Daily CCDOC Population Report. Since 

March 8, the jail population has dropped 24%, from 5,710 detainees to 4,233 detainees 

on April 17. This corresponds with the data on daily bookings and release (See Exh. B, 

Daily Bookings). For example, on March 8, there were 200 bookings with 117 detainees 

not released on the day of booking (either through bond or EM). Bookings have 

declined rapidly, and on April 16, there were 52 bookings with only 13 detainees not 

released on the day of booking. 

Meanwhile, the positive COVID detainees in isolation have generally been 

trending downward See Exh. C, CCDOC Testing Results. After the COVID-19 outbreak 

at the jail in late March, a highpoint was reached on April 10, with 289 positive COVID 

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detainees in isolation. Since then, there has been a relatively consistent decline with 180 

positive COVID detainees in isolation on April 17. In comparison, the number of 

convalescent detainees in recovery has been increasing. On April 5, there were no 

convalescent detainees in recovery. On April 17, the number of convalescent detainees 

in the process of medical recovery has reached 170. Id. 

These successes, in addition to the many others reported by the Sheriff, 

demonstrate why Plaintiffs have not and cannot succeed on their ever-evolving claims 

against the Sheriff. This is particularly true with respect to Plaintiffs’ latest claim that 

the alleged failure to implement strict social distancing within a correctional facility—

beyond the standards set forth by the CDC Guidance on Management of Coronavirus 

Disease 2019 in Correctional and Detention Facilities—is objectively unreasonable. As 

will be shown below, not only are Plaintiffs unable establish a likelihood of success on 

the merits of their claims, but as a preliminary matter, they cannot overcome the 

significant structural legal hurdles necessary to obtain their desired relief seeking the 

immediate release or transfer of hundreds of detainees. In other words, Plaintiffs’ 

claims fail before they have begun. Therefore, the motion for preliminary injunction 

must be denied outright, obviating the need for a hearing or any request for expedited 

discovery. 

II. PLAINTIFFS CANNOT SUCCEED ON THE MERITS OF THEIR CLAIMS 

The standard for a preliminary injunction is identical the standard for a 

temporary restraining order, which is well known at this point in the litigation. Dkt. 47, 

p. 10. Plaintiffs must establish that they will suffer irreparable harm without the 

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requested relief; they have no adequate remedy at law; and they are likely to succeed on 

the merits of their claim. If Plaintiffs can meet this threshold, then the Court must 

determine whether the harm to the public in categorically releasing hundreds of 

detainees outweighs the risk of harm to the Plaintiffs. These standards are exceedingly 

stringent here, where Plaintiffs seek a mandatory injunction requiring affirmative action 

by the Sheriff. Dkt. 47, p. 10. 

Plaintiffs’ motion must be denied not only because they cannot establish success 

on the merits of their claims, but as a preliminary matter, they cannot overcome the 

significant procedural and substantive legal hurdles that would allow this Court to 

grant their requested relief. First, Plaintiff Foster still has not exhausted all available 

remedies that would entitle him to release pursuant to a writ of habeas corpus. Even as 

to his preliminary effort to alter the conditions of bond, principles of comity and 

abstention counsel against this Court revisiting the state court judge’s finding that 

Foster’s risk to society upon release outweighs any possibility of harm that could befall 

him in the Jail. Second, Plaintiffs are not entitled to release or transfer under section 

1983 because their claims are procedurally barred by the Prisoner Litigation Reform Act 

(PLRA). Finally, Plaintiffs’ quest to obtain release on a class-wide scale is “untenable” 

and “unworkable” under either theory of relief because of the inherently individualized 

considerations involved in evaluating detainee release. Notwithstanding these 

procedural failures, on the merits, Plaintiffs cannot succeed on their due process claim 

because as this Court previously found, the Sheriff was entitled to rely on the CDC 

Guidance for correctional facilities with respect to social distancing in the living 

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quarters and common areas at the Jail, which complies with these standards. In practice, 

over the past month, the Sheriff has made significant structural efforts to increase social 

distancing in the living quarters at the Jail. At this point, the majority the tiers now 

house single-celled detainees and a majority of the dorms are now at 50% occupancy or 

less. Accordingly, the Sheriff’s efforts to increase opportunities for social distancing at 

the Jail have been objectively reasonable. 

A. Plaintiffs Cannot Succeed on the Merits Because They Cannot 

Overcome the Procedural Hurdles to Obtain the Requested Forms of 

Relief. 

As a preliminary matter, Plaintiffs’ cannot succeed on the merits of their claims 

because they are procedurally barred. As to Plaintiffs’ claim for habeas relief, Mr. Foster 

still has not exhausted his administrative remedies sufficient to invoke habeas relief. 

Moreover, while he did make a preliminary effort to seek a bond reduction in state 

court, he never sought appeal or rehearing on that finding. Moreover, Plaintiffs’ claim 

for release under section 1983 is barred by the Prisoner Litigation Reform Act (PLRA) 

because they have failed to satisfy the requisite conditions for pursuing relief under 18 

USC §3626.

1. Plaintiffs are not entitled to habeas relief because they still have 

not exhausted their administrative remedies. 

Plaintiffs contend that Kenneth Foster “and the subclass he provisionally 

represents” is entitled to emergency release pursuant to a writ of habeas corpus based 

on his medical status, which he claims puts him at a higher risk of contracting COVID19. Dkt. 55, p. 14. The Court previously denied this request at the TRO stage because 

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Plaintiffs made no showing—and in fact, were unaware one way or another—that 

Foster, Mays, or any other detainees had availed themselves of existing (and stillavailable) state court remedies to seek release through emergency bond proceedings. 

Dkt. 47, p. 12-13. The Court rejected the notion that pursuing such remedies was futile. 

First, it is important to note that the Court has not “provisionally” certified a 

subclass of detainees who “in addition to having health vulnerabilities that elevate their 

risk of serious COVID-19, also ... sought release from the Jail” (Dkt. 55, p. 13) under the 

bond modification process relative to the instant motion for preliminary injunction, nor 

could it for reasons explained more fully in section II.C.3., infra. Also, the Plaintiff’s 

motion for class certification was not before the Court at the time the TRO motion was 

heard, and its provisional certification of all pretrial detainees relative to the conditions 

of confinement under Rule 23(b)(2) was entered sua sponte pursuant to its equitable 

power in that proceeding. That provisional class certification applies only to the relief 

granted in the TRO, and does not extend to the present motion, particularly where the 

Sheriff has not yet had an opportunity to respond to Plaintiffs’ motion for class 

certification. Dkt. 6. 

Plaintiffs now contend that Mr. Foster did in fact seek release by way of the 

expedited bond hearing process implemented by Judge Martin, but that his request was 

denied. The briefing in Mr. Foster’s case shows that he presented Judge Joyce with the 

same arguments he makes here: namely, that he should be released on bond because his 

medical condition makes him susceptible to coronavirus infection. Dkt. 55-6. However, 

in light of the violent crimes with which Mr. Foster has been charged—namely, robbery, 

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domestic battery, and false imprisonment—Judge Joyce evidently determined that Mr. 

Foster’s risk to society outweighed the potential risk of infection. Additionally, Judge 

Joyce was statutorily prohibited from releasing Mr. Foster to electronic monitoring in 

light of his domestic battery charge. Nevertheless, Mr. Foster has made no attempt to 

appeal or seek reconsideration of that ruling. However, he is not excused from pursuing 

this remedy: the Court previously rejected the notion that pursuing an appeal or 

rehearing so “unduly time consuming” as to make the process futile. Dkt. 47, p. 13. 

Accordingly, Mr. Foster still has not exhausted his administrative remedies, and 

therefore, cannot obtain release by way of a writ of habeas corpus. Nor do the principles 

of comity permit the Court to interfere with the paramount interest of the state courts to 

adjudicate criminal matters by revisiting Judge Joyce’s determination that Mr. Foster is 

too dangerous to be released. 

2. Plaintiffs are not entitled to release under section 1983 because 

their claims are barred under the PLRA. 

 Plaintiffs’ Preliminary Injunction Motion seeks two orders from this Court that 

arise out of their § 1983 claim2: (1) order the Sheriff to implement social distancing; and 

(2) order a three judge panel to be empaneled to enter a release order; (3) or order a 

“transfer” of detainees. Dkt. #55, pgs. 17-19 (“Mot.”). Plaintiff’s cannot meet their 

burden for relief under the PLRA. 

i. The PLRA prohibits this Court from empaneling a threejudge court at this stage in this litigation. 

 

2

 The PLRA applies to all Section 1983 claims brought by prisoners. Walker v. O'Brien, 216 F.3d 626, 639 (7th Cir. 

2000). The PLRA has a broad definition of “prisoner” that includes pretrial detainees. 18 U.S. Code § 3626(g)(3). 

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Plaintiffs next argue this Court should immediately empanel a three judge panel 

through 18 U.S.C. 3626(a)(3) to consider a prisoner release order if the Court determines 

social distancing is impossible. Dkt. 55, p. 17. 

The PLRA prohibits this Court from entering empaneling a three judge panel at 

this point. A three judge panel is required under PLRA for a prisoner release order. 18 

U.S.C. 3626(a)(3)(B). There are two requirements that must be met before a court may 

enter a prisoner release order: “(i) a court has previously entered an order for less 

intrusive relief that has failed to remedy the deprivation of the Federal right sought to 

be remedied through the prisoner release order; and (ii) the defendant has had a 

reasonable amount of time to comply with the previous court orders.” 18 U.S.C. 

3626(a)(3)(A). Neither requirement has been met here. 

First, this Court’s TRO Order denied Plaintiffs’ request for a TRO on social 

distancing in the jail. The Court found “[s]pace constraints at the Jail do not allow for 

the more preferable degree of social distancing that exists in the community at large.” 

Dkt. #47, pg. 25. The Court concluded that “plaintiffs have filed 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. This is particularly so 

because the Sheriff's submission reflects an ongoing effort to modify custodial 

arrangements at the Jail in a way that will permit greater separation of detainees.” Id. 

As a result, this Court has not previously entered an order for less intrusive relief 

on social distancing. And, of course, it is impossible to find the Sheriff “has had a 

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reasonable amount of time to comply” with an order that has never been entered. Thus, 

it is premature to consider relief under 18 U.S.C. 3626(a)(3)(A). 

ii. This Court should not order a “transfer” of detainees. 

Plaintiffs motion also asks this court to “transfer” detainees. Though the motion 

does not specify the relief Plaintiffs seek, it references Plaintiffs previous filing in 

response to this Court’s April, 3, 2020 Order. In support, Plaintiffs argued the Sheriff 

has the authority under the Illinois County Jail Act to transfer detainees. Dkt. #26-1, pg. 

25. Plaintiffs cited to Section 125/14 of the County Jail Act, which states: 

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

of the prisoners are endangered or the security of the penal 

institution is threatened, to such a degree as to render their 

removal necessary, the Warden may cause an individual 

prisoner or a group of prisoners to be removed to some 

suitable place within the county, or to the jail of some 

convenient county, where they may be confined until they 

can be safely returned to the place whence they were 

removed. 730 ILCS 125/14. 

Contrary to Plaintiffs’ claims, all the County Jail Act envisions is that the Warden 

can remove prisoners to another “suitable place within the county.” Id. But Cook 

County only has the one jail facility. To find another “suitable place” to transfer 

detainees to, and then prepare that place and properly staff it to ensure public safety, 

would be, under the current circumstances, widely impractical if not impossible. It 

certainly would not be “the least intrusive means necessary to correct [any] harm.” 18 

U.S.C. 3626(a)(2). Plaintiffs have therefore not established a transfer under the County 

Jail Act is appropriate under the PLRA. 

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Though Plaintiffs’ briefing refers to “transfer,” their focus has been on a 

“transfer” to electronic home monitoring. Plaintiffs claim the County Jail Act provides 

the Sheriff the authority to “transfer” detainees to electronic monitoring. Dkt. #26-1, pg. 

25. But nowhere in the County Jail Act is electronic home monitoring, or any equivalent 

phrase or concept, referenced. Electronic monitoring is instead governed by the 

Conditions of Bail Bond section of the Illinois Code of Civil Procedure, which states the 

court may impose electronic monitoring as a condition of bond. 725 ILCS 5/110-

10(b)(14-14.3) Thus, under Illinois law, a judicial order is necessary for a detainee to be 

released on electronic monitoring. The Sheriff therefore lacks the authority to 

unilaterally release detainees on home monitoring. 

Plaintiffs also argue this Court, rather than a three-judge court, may order 

transfer to electronic monitoring under the PLRA. This too is incorrect. Plaintiffs 

attempt to support their argument by citing to Plata v. Brown, No. C01-1351 TEH, 2013 

WL 3200587, at *8 (N.D. Cal. June 24, 2013). Dkt. #55, pg. 16. But the court in Plata was 

considering transferring inmates from one prison facility to another. Id. pg. 42, fn. 11. 

Here, Plaintiffs are seeking detainees be released under electronic home monitoring. 

Electronic home monitoring is not another “facility.” The PLRA defines a 

“prisoner release order” as one that “includes 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 

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nonadmission of prisoners to a prison[.]”3 18 U.S.C. § 3626(g)(4). Any order from this 

Court to “transfer,” to use Plaintiffs’ term, would have the effect and purpose of 

reducing the Jail population to achieve social distancing, and the would direct the 

release of detains from the jail. Such an order would therefore have to be issued by a 

three judge court. 18 U.S.C. § 3626(a)(3). In fact, the three judge court is what this 

District used to order the Sheriff to release detainees on electronic home monitoring 

through § 3626(a)(3) in United States v. Cook County, 761 F. Supp. 2d 794, 800 (N.D. Ill. 

2011). 

Finally, any “transfer” order would still have to comply with the PLRA’s 

requirement that “[t]he court shall give substantial weight to any adverse impact on 

public safety or the operation of a criminal justice system caused by the preliminary 

relief[.]” 18. U.S.C. § 3626(a)(2). The number of detainees currently on electronic 

monitoring is 2,904. (Ex. A) This is an increase of nearly 450 detainees on electronic 

monitoring since March 17, 2020. Ex. D, Scannel Dec. As a result, an order that transfers 

detainees would have the risk of overloading the Sheriff’s electronic monitoring system, 

which would create a grave risk to public safety. 

iii. A preliminary injunction ordering the Sheriff to 

implement social distancing would be improper 

under the PLRA. 

Plaintiffs request this Court enter a preliminary injunction ordering the Sheriff 

“to take all possible steps to implement medically required social distancing because it 

 

3

 “Prison” and “Prisoners” are broadly defined to include jails and detainees. 18 U.S. Code § 3626(g)(3),(5). 

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is the only way to prevent a severe risk of harm.” Mot. pg. 8. The PLRA states that an 

preliminary injunctive relief “must be narrowly drawn, extend no further than 

necessary to correct the harm the court finds requires preliminary relief, and be the least 

intrusive means necessary to correct that harm.” 18 U.S.C. 3626(a)(2). In addition, the 

Court “shall give substantial weight to any adverse impact on public safety or the 

operation of a criminal justice system caused by the preliminary relief and shall respect 

the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief.” 

Id. 

The order Plaintiffs seek would have a significantly adverse impact on the 

operation of the Jail. Regardless that the CCSO has already taken “all possible steps” to 

implement social distancing, there are instances where social distancing must yield to 

security concerns (for example, housing certain classifications of detainees, medical 

concerns, or breaking up fights). An order mandating social distancing would impede 

the Sheriff’s ability to address security and medical issues that may arise. 

Furthermore, Plaintiffs have not offered this Court any guidance on how this 

Court could draft a narrowly tailored order that would direct the CCSO to do anything 

more than he is currently doing. As the Jail population has decreased, the CCSO has 

used that flexibility to provide detainees more space to achieve social distancing. More 

importantly, since this Court’s TRO Order denied social distancing relief in the Jail, the 

CCSO has obtained enough masks to provide every detainees with a new PPE surgical 

mask everyday until June 7, 2020. Ex. E, Miller Dec. The CCSO is therefore providing 

detainees in the Jail with better protection from coronavirus than most essential 

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workers are receiving. While complete social distancing is the ideal, the ability to 

provide each detainee with a surgical mask lessens the risk to detainees in situations 

where complete social distancing is not possible. 

3. Plaintiffs requested relief is inherently individualized and 

cannot be granted on a class-wide basis. 

Plaintiffs also cannot succeed in obtaining the ultimate relief they seek because 

the decision to release or transfer a detainee from the Jail is an inherently individualized 

process that is not amenable to class-wide resolution. The requirements for class 

certification seeking injunctive relief under Federal Rule 23 are: (1) numerosity; (2) 

commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a)(2). 

The failure to satisfy any one of these elements precludes class certification. Arreola v. 

Godinez, 546 F.3d 788, 794 (7th Cir. 2008). In this case, the inherently individualized 

process of assessing a detainees risk to the public when seeking release or transfer from 

custody precludes a finding of commonality or typicality, and class certification must be 

denied under either theory of relief. Id. 

Generally speaking, to satisfy the commonality element, the plaintiff must show 

there are questions of law or fact common to the class. However, this means more than 

that they all suffered a violation of the same provision of law. Rather, the plaintiff must 

demonstrate that the class members have suffered the same injury. Wal-Mart v. Dukes, 564 

U.S. 338, 360 (2011). The crux of commonality is “not the raising of common questions,” 

but rather, “the capacity of a classwide proceeding to generate common answers apt to 

drive the resolution of the litigation.” Id. (internal quotations omitted). 

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In the specific context of a Rule 23(b)(2) class seeking injunctive relief, the 

analysis centers on whether “the party opposing the class [allegedly] 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); Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 498-99 (7th Cir. 

2012) (emphasis added). However, “claims for individualized relief ... do not satisfy Rule 

23(b)(2).” Id. at 499, quoting Wal-Mart, 564 U.S. at 360. In other words, a single 

injunction must provide complete relief to each member of the class. Wal-Mart, 564 U.S. 

at 360. A class cannot be certified under Rule 23(b)(2) “when each individual class 

member would be entitled to a different injunction...against the defendant.” Id. 

(emphasis in original). It is not sufficient for a plaintiff to “superficially” style his case as 

a claim for class-wide injunctive relief if “as a substantive matter the relief sought 

would merely initiate a process through which highly individualized determinations of 

liability and remedy are made; this kind of relief would be class-wide in name only and 

it would certainly not be final.” Jamie S., 668 F.3d at 499. 

Here, even if Plaintiffs’ section 1983 claims were not barred by the PLRA, they 

still could not obtain the relief they seek because categorical release or transfer from the 

Jail is unattainable on a class-wide basis. It is imperative that a detainee’s suitability for 

for and conditions of release be based on an individualized consideration of the safety 

of the detainee, his family, and the public at large. Money v. Pritzker, 2020 U.S. Dist. 

LEXIS 63599, *49. In this context, certainly the detainees’ health status is an important 

consideration for release—not only the underlying condition for which he seeks release, 

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but also any signs of coronavirus infection, for his safety and his family’s safety. Most 

importantly, the public’s interest must be considered in light of the potential release of 

detainees who have been accused of serious violent crimes. Id. 

Plaintiffs fully acknowledge “that the court will need to individually assess the 

conditions under which each individual class member should be released, consistent 

with public safety concerns separate from the spread of coronavirus.” Dkt. 55, p. 16. It is 

precisely this need for individualized assessments that make this case inappropriate for 

class treatment. Id. Indeed, the differences among putative class members are so vastly 

and fundamentally different that class treatment is deemed “untenable” and 

“completely unworkable.” Money, 2020 U.S. Dist. LEXIS 63599, *6, 49. Accordingly, 

without the ability for Plaintiffs to obtain relief on a class-wide basis, this case reverts to 

two individual section 1983 lawsuits, which defeats their class claims and precludes 

Plaintiffs from obtaining the expedited discovery they seek. 

While it is unclear whether class-wide relief is available for habeas claims at all, it 

certainly would not be available here, because of the need for individualized 

assessments of whether any of the plaintiffs are entitled to release. Bijeol v. Benson, 513 

F.3d 965, 968 (7th Cir. 1975); Money, 2020 U.S. Dist. LEXIS 63599, *72 n.15. 

B. Plaintiffs Cannot Succeed on the Merits Because the Sheriff’s Actions 

are Objectively Reasonable. 

Not only are Plaintiffs unable to succeed on the merits of their claims because of 

the procedural deficiencies of their case, they also cannot succeed on the merits of their 

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claims. The Sheriff’s reliance upon and compliance with the CDC Guidance regarding 

social distancing is objectively reasonable and does not result in a due process violation. 

1. The Sheriff contends that it is objectively reasonable to comply 

with the CDC Guidance adapted for correctional facilities. 

As explained more fully in the Sheriff’s Supplemental Brief in Opposition to the 

TRO, Plaintiffs must establish a likelihood of success that the Sheriff was objectively 

unreasonable in implementing the CDC Guidance adapted specifically for correctional 

facilities with respect to social distancing. Dkt. 41, p. 1-2. It must be remembered that 

barely two weeks ago, in the remarkably short history of this case, Plaintiffs very first 

request for relief sought a TRO forcing the Sheriff to implement these very guidelines that 

they now say are utterly deficient. And this case has been a game of constitutional 

whack-a-mole ever since. With every documented policy, practice, and act of creative 

problem solving the Sheriff has implemented in the Jail during these unprecedented 

times, Plaintiffs abandon their last complaint and find a new one to explore. 

In this specific context, Plaintiffs now claim that the Sheriff is constitutionally 

obligated to exceed the CDC Guidance for correctional facilities as it relates to social 

distancing. The Court previously rejected this contention and declined to order the 

Sheriff to implement full social distancing, remarking that while Plaintiffs complained 

that the sleeping and common areas of the Jail “run afoul of CDC guidance,” “the 

CDC’s guidance is not as definitive as plaintiffs suggest.” Dkt. 47, p. 23. In fact, the CDC 

Guidance for correctional facilities specifically “acknowledges that space limitations 

may require a departure from better social-distancing practices... [T]he CDC’s guidance 

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expressly recognizes that complete social distancing may not be possible in the sleeping 

areas of a jail [and s]pace constrains at the Jail do not allow for the more preferable 

degree of social distancing that exists in the community at large.” Dkt. 47, p. 24-25. 

Nevertheless, Plaintiffs have proffered the declaration of an infectious disease 

expert who may be very accomplished in his own right, but has no experience with 

correctional facilities, and a promise that a former jail medical director may offer his 

opinion at some point in the future supporting full social distancing. On the basis of 

these two submissions, and in the face of the Court’s prior recognition that the Sheriff 

rightly relied on and complied with jail-specific guidelines promulgated by the leading 

authoritative agency on infectious disease, Plaintiffs again contend that merely 

complying with the CDC Guidance is not objectively reasonable. 

To the contrary, the Seventh Circuit has recognized that courts do not “impose 

upon prisons in the name of the Constitution a duty to take remedial measures against 

[allegedly harmful conditions] that the agencies responsible for the control of these 

hazards do not think require remedial measures.” Carroll v. DeTella, 255 F.3d 470, 472-73 

(7th Cir. 2001) (analyzing claims against a prison for alleged water contamination). If 

the relevant government agencies believe that certain standards are acceptable, “prison 

officials cannot be faulted for not thinking it necessary for them to do anything either. 

They can defer to the superior expertise of those authorities.” Id. at 473. Although Carroll was 

analyzed under the eighth amendment, the Court’s analysis speaks directly to the 

reasonableness of a jailer’s ability to rely on the “superior expertise” of the leading 

authorities who promulgate policies and standards relative to the apparent risk. 

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The constitution also does not require a “maximally safe environment... 

completely free from pollution or safety hazards.” Id. at 472. Where a prison official 

knew of a substantial risk of harm to inmate health or safety, and “responded 

reasonably to the risk, even if the harm ultimately was not averted,” their conduct is not 

unconstitutional. Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002). This is not to say 

that the Sheriff does not appreciate the seriousness of controlling the spread of COVID19 in the Jail or that he is not taking action to control it. He certainly does, and that is 

evident from the extraordinary efforts he has undertaken to contain it, discussed more 

fully below. Accordingly, the Sheriff’s reliance on the CDC Guidance and compliance 

with it with respect to social distancing is objectively reasonable. 

2. While the Sheriff has voluntarily made efforts that allow 

detainees to practice “full” social distancing in a majority of the 

general population living quarters, he cannot implement “full” 

social distancing throughout the Jail outside of the CDC 

guidelines that apply to jails. 

As explained above, to fulfill his constitutional obligations, the Sheriff may rely 

on the CDC Guidance for management of correctional facilities to set compliance 

standards at the Jail, and he acted objectively reasonably in doing so. Nevertheless, in 

light of Plaintiffs’ new contention that full social distancing at the Jail is “impossible 

without reducing the population of the jail” in an effort to obtain categorical detainee 

release, (Dkt. 55, p. 2), the Court asked the Sheriff to provide his “position on whether it 

is possible to ... rearrange people within the Jail to accomplish social distancing” of six 

feet between individuals as defined by the CDC “without the safety valve” that allows 

an exception where social distancing “might not be feasible given the nature of the 

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facility.” Ex. A, Transcript 4/15/20, 39:20-40:19. Indeed, the Sheriff can and has been 

proactive in his efforts to implement social distancing in the majority of the Jail’s living 

quarters and common areas. However, due to several factors, including security and 

medical classification restrictions and the size of the population, among other things, 

the Sheriff cannot implement “full” social distancing throughout the Jail at this time. 

Given the ever-changing nature of the population and detainees’ needs and 

characteristics, it is not “impossible,” but would likely require a reduction in population 

in the short term. 

It is important to note at the outset that any suggestion that the Sheriff is relying 

on the modifications in the CDC Guidance to avoid making even minimal efforts to 

accommodate social distancing throughout the Jail is belied by the powerful data 

showing the results of the Sheriff’s ongoing efforts to contain the spread of the 

coronavirus for the protection of the detainees and the staff. As the Court has 

recognized, the Jail system is a large and very complex compound, the operation of 

which is very challenging even in normal times. Dkt. 47, p. 2. 

Despite this, the Sheriff has undertaken many structural efforts to allow 

detainees to practice social distancing, particularly in living quarters and common 

areas. For example, as noted elsewhere in the Sheriff’s briefing, he has worked 

cooperatively with the State’s Attorney and the Public Defender to identify detainees 

who would be suitable for release and who would appear before a bond court judge to 

seek modifications of conditions of bond. To date, over 1,200 detainees have been 

released since March, and the Sheriff continues to work with Public Defender 

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Campanelli to evaluate the detainee population and identify other detainees who may 

be eligible for release under the bond court procedure. See Ex. F, Campanelli letter. As 

mentioned above, the Jail population remains at a record low of 4,211, while there are a 

record high number of detainees on the electronic monitoring program, approaching 

3,000. 

The Sheriff also has “rearranged people” and reconfigured spaces to allow for 

social distancing in the housing units, made possible by the fact that the Jail population 

has dropped by 24% over the past month. One month ago, there were 391 detainees in 

single-celled housing. Today, there are 2,521, marking a 545% increase. One month ago, 

there were 3,906 detainees in double-celled housing; today, there are 260, a decrease of 

93%. Single-cell housing is now available on 175 tiers, with only 11 tiers that remain 

double celled, due to the unique mental health needs of those detainees. CHART; Exh. 

__, Miller Dec., at 11, 13. 

The Sheriff also opened several divisions of the Jail that previously were closed 

in order to spread out detainee housing: Division IV, Division V, Bootcamp 

barracks/Mental Health Transition Center, and Division II, Dorms 1, 3, and 4. Ex. __, 

Miller Dec., at 9. This is no small undertaking, and all was done in extremely short 

order to accommodate new housing units. Opening these tiers requires that the space be 

thoroughly cleaned; that utilities be connected; that a system for food and medical 

delivery be established; and that the Division be properly staffed. 

By opening these Divisions, the Sheriff is now able to spread out detainees 

assigned to dormitory housing. Each of the four dorms can accommodate 900 detainees. 

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Currently, there are 684 detainees housed across the four dorms, permitting 170-200 

detainees per dorm. Ex., __, Miller Dec. at 12. Occupancy in these dorms is at 50% of 

capacity, allowing for one-man bunks. Where the bunks are movable, they are spaced 6’ 

apart. For those bunks that are bolted to the floor, every other bunk is unoccupied. 

In addition to the structural changes implemented, it is important to also note 

that the Sheriff provides all detainees in the Jail with masks, including those in the 

general population. Ex. __, Miller Dec., at 23--25. The use of masks to stringently control 

transmission of the virus cannot be discounted. None of Plaintiffs’ experts, through 

declaration or Plaintiffs’ characterization of their purported testimony, account for the 

role masks play in preventing the spread of the virus. At this time, with the new supply 

of PPE, the Sheriff can provide a new mask to every detainee every day, and plans to 

incorporate those needs into his ongoing PPE estimates. If supplies run short, however, 

the Sheriff may provide cloth masks to detainees in the general population, which are 

CDC-approved for the general public. 

As mentioned above, the population at the Jail changes daily, in number and 

character, and with that comes the ever-present need for the Sheriff’s Officers to have 

the flexibility to adapt to the needs of the population as a whole at any given time. This 

leads to unpredictable situations that may require housing adjustments on an ongoing 

basis to operate the Jail safely and efficiently, which is the Sheriff’s first priority at all 

times. 

For example, despite all efforts of the officers and staff, fights break out in the 

Jail, and sometimes in large numbers. These are not common occurrences, but they 

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happen, and the Sheriff must have the flexibility to prioritize Jail safety over voluntary 

“full” social distancing. Currently, if a small infraction occurs, discipline housing can 

accommodate single-cell housing; however, if a large-scale fight occurs, that could 

require alternative housing arrangements to house the detainees involved. 

Additionally, there is a population of approximately 1,700 mentally ill detainees 

who may not be assigned to a single cell for medical reasons, and who have been 

designated as such by Cermak Health Services. They are largely housed in the dorms, 

they must be given priority in certain dorms, in the event that security and other 

population adjustments are necessary. 

Additionally, there are currently 170 detainees on the convalescent tier who have 

medically recovered from COVID-19. Ex. __, Miller Dec., at 7. As these detainees 

eventually make their way back to the general population, the CDC permits them to be 

housed in cohorts, and need not practice social distancing as they have developed 

immunity to the virus. As the recovery population continues to grow, these additional 

considerations factor into future housing decisions and may eventually change the need 

for social distancing. The Sheriff also rotates the hours detainees may be in dayrooms 

and common areas. Ex. __, Miller Dec., at 19 

As with any condition at the Jail, the Sheriff is responsible for providing the 

opportunity for detainees to exercise their free will and practice social distancing or 

wear masks. Many do. However, correctional officers do not “enforce” social distancing 

or use of PPE with threat of discipline, which could raise a host of constitutional 

concerns. Ex. __, Miller Dec., at 18. 

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3. The Sheriff is Under No Constitutional Obligation to Identify 

and Medically Triage “Medically Vulnerable” Detainees. 

The Sheriff is under no constitutional obligation to affirmatively identify and 

“triage” certain detainees based on their health conditions. Plaintiffs have not proffered 

any expert opinions or any other authority suggesting that the Sheriff has such a duty. 

Dkt. 55, 55-7. In fact, the Sheriff cannot identify detainees by their health conditions. 

While Plaintiffs are correct that the Department of Corrections may place a health alert 

in certain detainees files based on information received from Cermak Health Systems, 

Plaintiffs misunderstand the scope of these alerts. (4/15/20 Transcript, p. 15) As Mr. 

Scouffas explained at the hearing on April 15, these alerts do not contain information on 

the detainee’s specific health condition. (4/15/20 Transcript, p. 34) Instead, these alerts 

simply contain information that is required to make operational decisions, such as 

whether an asthmatic detainee was permitted to have an inhaler, which otherwise 

would be confiscated as contraband. Id. The Sheriff’s office is not a “covered entity” 

under HIPAA, and as such, are not entitled to and may not receive detainees’ personal 

health information. 

There is a process in place at the Jail that would allow any detainee to request 

assistance or accommodations for their health conditions, but the Sheriff’s Office has not 

affirmative obligation to identify them or provide any segregated housing for them. 

Sheriff’s Officers also will refer any detainee who complains of a medical issue to 

Cermak Health Services for evaluation. Dkt. 30-6. Cermak Health Services continues to 

perform reviews of any detainee with a medical issue and order well-being checks 

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which include going to detainees living units as needed for treatment. Id. Cermak 

Health Service, the proper entity to monitor detainees with any medical issues, 

continues to provide full care for all detainees at the Jail. Id. Thus, with no constitutional 

obligation to affirmatively identify and “triage” medically vulnerable detainees, the 

Sheriff certainly cannot have acted objectively unreasonably by not doing so. 

IV. The Balancing of Harms Weighs in Favor of Not Imposing a Mandatory 

Injunction on the Sheriff to Categorically Release or Transfer Detainees Out of 

the Jail. 

As more fully set forth in the Sheriff’s previous filings, all of which are 

incorporated here by reference, even if Plaintiffs could establish all of the threshold 

elements for preliminary injunction, they cannot establish that the balance of harms 

weighs in their favor. See Dkt. 29-1, p. 17. Overwhelmingly this is because ordering the 

categorical release of the Subclass A detainees—with no assessment of their risk to 

society upon release—would be harmful to the public interest. The decision to release a 

person from jail must be made on a case by case basis, after examining all of the 

relevant risk factors. As in any case, that decision must evaluate the seriousness of the 

crime charged, the recidivist nature of the detainee, and the risk that he is a danger to 

himself or others, among other things. Here, there also would need to be an evaluation 

of whether the detainee actually suffered from the claimed medical condition that 

allegedly makes him vulnerable to COVID-19 infection. 

The Sheriff has worked cooperatively with the State’s Attorney and the Public 

Defender to identify detainees who are suitable for release based on their criminal 

background, medical history, and a host of other factors. For those who remain in the 

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Jail who have not be identified for release, and particularly those who have petitioned 

unsuccessfully for bond modifications, the assessment of risk to the public evidently 

outweighed any perceived risk to their health, and the are not eligible for release, 

through the bond process, habeas, or an order of release. 

V. PLAINTIFFS’ REQUEST FOR EXPEDITED DISCOVERY MUST BE DENIED 

For the reasons stated above and also in Plaintiffs’ motion for expedited 

discovery itself, plaintiffs cannot, in the balance, establish good cause for 

discovery. There are dispositive barriers to each of the requests made by plaintiffs in 

their renewed filing (medical triage and implementation of social distancing beyond 

that required by the CDC), as well as to each of the remedies sought in their brief 

(transfer out of the jail or three judge habeas corpus panel). (Renewed brief, p. 

2). These requests and remedies either are legally barred or moot or both. As a result, 

plaintiffs have no likelihood of success on these claims and no degree of discovery will 

change that result. Here, Plaintiffs seek discovery on whether social distancing is 

“possible,” (p. 10) but that question has been answered to the fullest extent possible at 

this time. In the meantime, the defendants should be permitted to re-direct their full 

attention to managing the pandemic and to maintaining the objectively reasonable 

policies that have been put in place according to the CDC Guidance that also are 

consistent with this Court’s prior order. Accordingly, this Court should find that 

Plaintiffs have not established good cause for discovery of any kind, particularly on an 

expedited basis, and deny their request for preliminary injunction. 

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CONCLUSION 

For the foregoing reasons, Sheriff Dart respectfully requests that the Court deny 

Plaintiffs’ request for a preliminary injunction outright and deny their request for 

expedited discovery.

By: /s/ Gretchen Harris Sperry 

One of the attorneys for Defendant 

Thomas J. Dart, Sheriff of Cook 

County 

Robert T. Shannon 

James M. Lydon 

Gretchen Harris Sperry 

Adam R. Vaught 

Lari Dierks 

HINSHAW & CULBERTSON LLP 

151 N. Franklin Street, Suite 2500 

Chicago, Illinois 60601 

Tel. 312-704-3000 

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CERTIFICATE OF SERVICE 

 The undersigned certifies that on April 17, 2020, I electronically filed the forgoing 

DEFENDANT’S PARTIAL BRIEF IN OPPOSITION TO PLAINTIFFS’ RENEWED 

MOTION FOR PRELIMINARY INJUNCTION AND FOR LIMITED, EXPEDITED 

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

system, which will accomplish service electronically on all counsel of record. 

 /s/ Gretchen Harris Sperry 

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