IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES MONEY, et al.

Plaintiffs,

v.

J.B. PRITZKER, et al.

Defendants.

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Case No. 20-cv-2093

Judge Steven C. Seeger, assigned

Judge Robert M. Dow, Jr., emergency

JAMES MONEY, et al.

Petitioners,

v.

ROB JEFFREYS, in his official capacity

as DIRECTOR OF THE ILLINOIS 

DEPARTMENT OF CORRECTIONS,

Respondent.

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Case No. 20-cv-2094

Judge John F. Kness, assigned

Judge Robert M. Dow, Jr., emergency

MEMORANDUM OPINION AND ORDER1

In these two cases, Plaintiffs have raised issues of great importance concerning the safety 

and well-being of inmates in the custody of the Illinois Department of Corrections during the 

current national crisis occasioned by the COVID-19 pandemic. As myriad citations in both sides’ 

briefs confirm, this issue has occupied all three branches of government in both the federal and 

state governments in recent weeks. News reports are replete with actions taken by Governors, 

1 Judge Dow is addressing this matter as emergency judge pursuant to paragraph 5 of Second Amended 

General Order 20-0012.
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Attorneys General, state Supreme Courts, and individual trial judges to accelerate the release of 

inmates and detainees where consistent with overall public safety and to protect those who remain 

in custodial settings. And rightly so, for the stakes are incredibly high for Plaintiffs, their families, 

and the public at large. As emphasized by the medical experts whose appearances at daily press 

briefings rivet the nation, nobody is immune from this virus. However, due to the way in which 

the virus spreads, individuals living in congregate settings—such as nursing homes and prisons—

are especially vulnerable because of difficulty of observing social distancing and recommended 

hygiene practices in close quarters.

At the outset, it is worth mentioning that Plaintiffs do not ask this Court to order the Illinois 

Department of Corrections to improve the conditions of confinement. That is, Plaintiffs do not 

ask to improve the cleanliness of the prisons, or increase the amount of space between inmates at 

each facility, and so on. Instead, Plaintiffs ask this Court to force the state executive branch to 

start a process for the potential release of thousands of inmates, through medical furlough or home 

detention under state law, and do so within one week. The scope of the potential release is 

sweeping. By their own admission, Plaintiffs want a process to potentially release at least 12,000 

inmates, almost one-third of the prison population in Illinois. Defendants submit that they have a 

process and already are doing most of what Plaintiffs are requesting in their proposed remedial 

plan—albeit not at the pace Plaintiffs would like to see.

The immediate question before the Court is whether Plaintiffs are entitled to some form of 

immediate relief—in the form of a temporary restraining order, a preliminary injunction, or writs

of habeas corpus—imposed by a federal court on state officials. For several reasons explained 

below, the Court answers that question in the negative and denies the requested relief. Plaintiffs 

are correct in asserting that the issue of inmate health and safety is deserving of the highest degree
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of attention. And the record here shows that the authorities in this state are doing just that, with 

constantly evolving procedures increasing the number of inmates released on a daily basis. But 

the release of inmates requires a process that gives close attention to detail, for the safety of each 

inmate, his or her family, and the community at large demands a sensible and individualized 

release plan—especially during a pandemic. Even if the steps Illinois has taken and the pace with 

which they are proceeding is not exactly what Plaintiffs want, those steps and that pace plainly 

pass constitutional muster. Plaintiffs have provided no convincing reason for a federal court to 

intrude here and now—either to issue a blanket order for the release of thousands of inmates or to 

superimpose a court-mandated and court-superintended process on the mechanisms currently in 

place to determine which IDOC inmates can and should be safely removed from prison facilities 

at this time.

The care of state inmates is entrusted, in the first instance, to state officials, unless the 

conditions rise to the level of constitutional violations. And state law empowers state officials 

with the discretion to release individual inmates for medical furlough or home detention, if they 

deem it appropriate. This Court concludes that Plaintiffs have no likelihood of success on their 

constitutional claims because the record does not support the notion that the Defendants are 

showing deliberate indifference to the inmates’ plight or discriminating against inmates with 

disabilities. Even if they had a colorable claim, Plaintiffs’ request for release is untenable on a 

class-wide basis because the possibility of release is an inherently inmate-specific inquiry. Other 

considerations – such as the public interest from the potential release of thousands of inmates –

weigh heavily in the analysis, too. In the end, this Court concludes that Plaintiffs are not entitled 

to their request for extraordinary relief, even in these extraordinary times.
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I. Background2

The named Plaintiffs are ten individuals convicted of a range of felonies, including murder, 

aggravated kidnapping, and attempted robbery. See Money v. Pritzker, 20-cv-2093 (hereinafter 

“Pritzker”), [26 at ¶¶ 93-102]. They are currently serving sentences in various Illinois Department 

of Corrections (“IDOC”) facilities, none of which are in Cook County. See [id. at ¶¶ 8-17.] IDOC 

operates 28 adult correctional facilities throughout the State of Illinois, houses around 37,000 

individuals, and has 11,600 employees. [Id. at ¶ 69.] Plaintiffs have brought two purported class 

action lawsuits—Pritzker and Money v. Jeffreys (hereinafter “Jeffreys”), 20-cv-2094—seeking 

release of prisoners from IDOC facilities in light of the COVID-19 pandemic. 

Money v. Pritzker, 20-cv-2093, contains three counts, of which the first two are brought 

under 42 U.S.C. § 1983. Count I asserts that Defendants are violating the Eighth Amendment 

through deliberate indifference to a serious risk of harm, while Count II asserts a violation of 

Plaintiffs’ right to due process under the Fourteenth Amendment. Count III asserts violations of 

the Americans with Disabilities Act (“ADA”). The complaint names as defendants J.B. Pritzker, 

Governor of Illinois, and Rob Jeffreys, Director of the Illinois Department of Corrections. Money 

v. Jeffreys, 20-cv-2094, is a petition for writs of habeas corpus under 28 U.S.C. § 2254 for relief 

from custody in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. It 

names Rob Jeffreys as the respondent. Both suits are purportedly brought on behalf of the named 

plaintiffs and all similarly situated individuals. 

2 The facts are taken from the plaintiffs’ complaints and from materials cited by the parties that are the 

proper subject of judicial notice. The Court may take judicial notice of material whose contents are “capable 

of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned,” 

Driebel v. City of Milwaukee, 298 F.3d 622, 622 n.2 (7th Cir. 2002) (quoting Fed. R. Evid. 201(b)), and 

documents incorporated in a complaint, Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 

2002). 
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The foundation of each suit is essentially the same: Plaintiffs argue that the prison setting 

makes them (and other purported class members) especially vulnerable to COVID-19, that the 

state government’s responses to the danger are insufficient or not fast enough or both, and that the 

only way to solve the problem is moving prisoners out of prisons. 

A. Factual Background

COVID-19 is a disease caused by a novel coronavirus that began infecting humans in late 

2019. Symptoms include fever, cough, shortness of breath, congestion, sneezing, fatigue, and

diarrhea. Pritzker, [1 at ¶ 25.]3 While some cases are mild, others require medical intervention, 

including hospitalization and intensive care. [Id.] The virus spreads from person to person through 

respiratory droplets, close personal contact, and from contact with contaminated surfaces and 

objects. [Id.] It is highly contagious.

Currently, there is no vaccine to protect against infection by COVID-19. To prevent 

infection and mitigate the spread of the virus, the Center for Disease Control (“CDC”) and other 

public health agencies have universally prescribed social distancing—every person should remain 

at a distance of at least six feet from every other person—and rigorous hygiene—including regular 

and thorough hand washing with soap and water, the use of alcohol-based hand sanitizer, proper 

sneeze and cough etiquette, and frequent cleaning of all surfaces. [1. at ¶ 31.] The CDC 

recommends avoiding gatherings of more than 10 people. [Id. at ¶ 32.] Individuals in congregate 

environments—places where people live, eat, and sleep in close proximity—face increased danger 

of contracting COVID-19, as demonstrated by the rapid spread of the virus through cruise ships 

and nursing homes. [Id.] 

3 The complaints in the Pritzker Section 1983 action and the Jeffreys habeas action are quite similar, and in 

some places identical. For simplicity and to avoid duplication, where a fact applies to both matters and is 

cited in both complaints, the Court cites to the Pritzker complaint, as it was filed first. 
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Despite social distancing recommendations, the disease has continued to spread. The 

World Health Organization has declared COVID-19 to be a global pandemic. [1 at ¶ 20.] On 

March 9, 2020, Illinois Governor J.B. Pritzker issued a proclamation declaring a disaster in the 

State of Illinois. [Id.] On March 13, 2020, President Trump declared a national emergency. [Id.] 

In the United States alone, as of April 1, 2020, there were over 186,000 confirmed cases and over 

3,600 deaths. In Illinois, there were over 6,900 confirmed cases and 141 deaths. [Id. at ¶ 21.] On 

the same date, 52 prisoners in IDOC facilities in two different correctional centers (Stateville and 

North Lawndale ATC) had confirmed cases of COVID-19, and 25 staff in seven different 

correctional centers (Stateville NRC, Stateville, Sheridan, North Lawndale ATC, Menard, Joliet 

Treatment Center, and Crossroads ATC) had confirmed cases. [Id. at ¶ 71.] St. Joseph Hospital

in Joliet, Illinois was, at the time the parties filed briefs in these matters, caring for 17 prisoners 

from Stateville, 9 of whom are in intensive care on ventilators. [Id. at ¶ 44.] On March 30, 2020, 

health officials announced that a prisoner in his 50s housed at Stateville Correctional Center had 

died from COVID-19. [Id. at ¶ 72.]4

As things stand, the coronavirus continues to spread. According to the Coronavirus 

Resource Center of Johns Hopkins University, the United States has reported 461,437 cases, and 

16,478 deaths, as of yesterday evening. See https://coronavirus.jhu.edu/data/new-cases (last 

visited April 10, 2020). According to the Illinois Department of Health, there are 16,422 

confirmed cases in Illinois, including 528 deaths. See https://coronavirus.illinois.gov (last visited 

April 10, 2020).

4 As of today, IDOC reports 134 confirmed cases of COVID-19 among the population of incarcerated 

individuals in all of its facilities [see 36, at 3]. 118 of those cases involve inmates at Stateville, with the 

remaining 16 spread out among a handful of the 27 other facilities in the IDOC system. See 

https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited April 10, 2020).
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Plaintiffs attached to both complaints a series of affidavits from medical professionals 

describing the seriousness of COVID-19 in a prison context and the limits of correctional facilities’ 

ability to prevent or mitigate the spread of the disease. See Pritzker, [2]; Jeffreys, [1-1 through 1-

10]. Among the primary points of those declarations are the following. Plaintiffs allege that none 

of the recommended measures for mitigating the spread of COVID-19 are available for persons 

confined in correctional facilities and for those who must interact with them. Correctional facilities 

are congregate environments, where large groups of people live, eat, and sleep in close contact 

with one another, making social distancing impossible. Pritzker, [1 at ¶ 36.] People share toilets, 

sinks, and showers, and often have limited access to soap, hand sanitizer, hot water, and other 

necessary hygiene items. Surfaces are infrequently washed, if at all, and cleaning supplies are 

limited. [Id. at ¶ 37.] 

B. Responses by the State of Illinois to the COVID-19 Crisis

The State of Illinois has taken a variety of actions in response to the COVID-19 crisis, 

including Governor Pritzker’s March 20, 2020 “stay at home” order directing all non-essential 

business operations to cease and all residents to stay in their homes except for essential activities. 

[1 at ¶ 33.] The order is currently in place through April 30, 2020. [Id.] 

IDOC has enacted measures consistent with CDC guidelines to protect those who are 

housed and work in Illinois prisons, including a pandemic response plan (including a plan specific 

to Stateville), enhanced screening and testing for COVID-19, increased hygiene and sanitation, 

new limits (and now a prohibition) on outside visitors, and increased separation of prisoners 

through an administrative quarantine. Pritzker, [26, at 2.] Governor Pritzker and IDOC have taken 

a number of actions to address COVID-19 in Illinois’ prisons, the most relevant of which are listed 

below. See [id. at 4-6]. 
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• Governor Pritzker suspended admissions of new prisoners from all Illinois county 

jails, with limited exceptions (Executive Order 2020-13; see also Executive Order 

2020-18 (extending Executive Order 2020-13 through April 30, 2020).

• Governor Pritzker activated the Illinois National Guard to provide additional 

medical support at Stateville. Pritzker, [1 at ¶ 91], [9 at 48].

• Governor Pritzker continues to review and grant commutation petitions.

• To allow for faster releases of prisoners, Governor Pritzker suspended the required 

14-day notification to State’s Attorneys for inmates released early as a result of 

earned sentence credit for good conduct. Executive Order 2020-11; see also 

Executive Order 2020-18 (extending Executive Order 2020-11 through April 30, 

2020).

• On April 6, 2020, Governor Pritzker suspended the 14-day limit for medical 

furloughs and allowed furloughs for medical purposes at the Director’s discretion 

and consistent with the guidance of IDOC’s medical director. Executive Order 

2020-21.

• IDOC created a population management task force for the purpose of prioritizing 

the review of individuals for possible release through statutorily permissible means.

• IDOC, as of April 6, 2020, had released approximately 450 prisoners through 

various forms of sentence credit, restoration of credit and electronic detention and 

had provided an additional 65 furloughs. 

• Between March 2 and April 6, 2020, IDOC reduced its population by more than 

1,000 prisoners.

• IDOC continues to award up to 180 days of Earned Discretionary Sentencing Credit 

(EDSC) for eligible offenders pursuant to 730 ILCS 5/3-6-3(a)(3).5

• On a daily basis, IDOC identifies offenders within nine months of their release date 

and conducts individualized reviews to determine whether they are eligible for early 

release. This process requires examining an offender’s file for disciplinary history, 

commitment to rehabilitation, and criminal history.6

 

5 The sentencing credit is within the sole discretion of the Director, but must be based on the results of a 

risk or needs assessment, circumstances of the crime, any history of conviction for a forcible felony, the 

offender’s behavior and disciplinary history, and the inmate’s commitment to rehabilitation, including 

participation in programming. 730 ILCS 5/3-6-3(a)(3). The Director is prohibited from awarding 

discretionary sentencing credit to any inmate unless the inmate has served a minimum of 60 days. Id.

6 Offenders with forcible felonies, violent criminal histories, significant disciplinary issues, and outstanding 

warrants are not approved for the sentencing credit.
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• IDOC continues to place offenders on electronic monitoring or home detention 

pursuant to 730 ILCS 5/5-8A-3, including 16 of 21 pregnant and postpartum 

offenders on home detention. IDOC is now concentrating on inmates who are 55 

years or older, have served at least 25% of their sentence and are within 12 months 

of release. This process also requires individual assessments to determine whether 

placement outside of a secure facility is appropriate.

• The Prison Review Board (“PRB”) continues to conduct release revocation 

hearings and make individualized assessments that include the alleged violations, 

the safety of those in custody, and overall public health concerns. 

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

Foundation7 and TASC8 to identify and secure safe host sites and provide wraparound services to support potential releasees.

• Lt. Governor Juliana Stratton, along with the SAFER Foundation, developed the 

Prison Emergency Early Release Response (PEERR) team, which is creating a 

referral network of human services, healthcare, housing, and reentry providers that 

are open, whether in person or remotely, and can deliver services to people being 

released from IDOC custody. 

• Effective March 14, 2020, all correctional facilities, impact incarceration programs, 

and work camps are under administrative quarantine with no visitors permitted.

• Facilities with confirmed COVID-19 cases are placed on lockdown, which means 

there is no movement around the facility except for medical care.

• Staff who work with individuals in isolation and quarantine, as well as in healthcare 

units, are wearing full personal protective equipment (PPE) and all staff are wearing 

some PPE. 

• Staff members’ temperatures are checked daily as they enter the facility. 

• IDOC has (1) educated staff on infection control, (2) promoted good health habits 

that interrupt transmission, (3) conducted frequent environmental cleaning of high 

touch surfaces and high volume locations, (4) made efforts to separate the sick from 

the well and employ social distancing and (5) provided ongoing infection control 

education to prisoners.

7 The SAFER Foundation is a nonprofit social impact organization that focuses on human capital 

development for people with criminal records. 

8 TASC is a nonprofit organization that provides direct services and performs advocacy and consulting 

work for individuals and families affected by substance abuse and mental health issues. 
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It also bears mentioning that as of today at noon, 644 inmates have been released from IDOC 

custody using all of the methods available and the total IDOC inmate population has been reduced 

by 1,441 since March 2, 2020. [See 36, at 2.] Included within these totals are the commutations 

of two of the named Plaintiffs, James Money and Carl Reed, announced by Governor Pritzker on 

April 8, 2020. [34, at 4.]

Plaintiffs assert that reducing the prison population is the only meaningful way to prevent 

the harms posed by COVID-19 in the prison setting, writing:

Public health experts with experience in correctional settings have similarly

recommended the release from custody of people most vulnerable to COVID-19 to 

protect the communities inside and outside the prisons, and to slow the spread of 

the COVID-19 infection. Population reduction protects the people with the 

greatest vulnerability to COVID-19 from transmission of the virus, and also allows 

for greater risk mitigation for all people held or working in a correctional facility. 

Because prisons are often located in small rural communities, removing the most 

vulnerable people from custody also reduces the burden on those region’s limited 

health care infrastructure by reducing the likelihood that an overwhelming number 

of people will become seriously ill from COVID-19 at the same time and require 

hospitalization in these small communities.

Pritzker, [1 at ¶46] (emphasis added). 

C. Procedural Background

On April 2, 2020, plaintiffs filed a purported class action complaint under 42 U.S.C. § 1983

alleging violations of the Eighth Amendment and the due process clause of the Fourteenth 

Amendment, as well as violations of the ADA. Pritzker, [1]. Plaintiffs also filed a motion for 

class certification, Pritzker, [8], seeking to certify a class of “all people who are currently or who 

will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic,”

[id. at 5-6], with the following subclasses:

Subclass 1: People who have serious underlying medical conditions that put them 

at particular risk of serious harm or death from COVID-19 * * * and who are 

eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
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Subclass 2: People who are medically vulnerable to COVID-19 because they are 

55 years of age and older and who are eligible for medical furlough pursuant to 730 

ILCS 5/3-11-1.

Subclass 3: People who are 55 years of age and older with less than one year 

remaining on their sentence and eligible for home detention pursuant to 730 ILCS 

5/5-8A-3(d).

Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and 

who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e).

Subclass 5: People who are currently in custody for Class 1 or Class X offenses 

with less than 90 days remaining on their sentence and eligible for home detention 

pursuant to 730 ILCS 5/5-8A-3(b) and (c).

Subclass 6: People who are scheduled to be released within 180 days and eligible 

to receive sentencing credit pursuant to 20 Ill. Admin. Code 107.210.

[Id. at 6-7]. Subclass 1 contains approximately 12,000 individuals, and subclass 2 contains 

approximately 4,800 individuals. Pritzker, [1 at ¶105]. 

Plaintiffs also filed a motion for a temporary restraining order (“TRO”) or a preliminary 

injunction. Pritzker, [9]. That motion asks the Court to preliminarily certify Plaintiffs’ proposed 

subclasses 1 and 2 and to order Defendants to transfer members of subclasses 1 and 2 to their 

homes to self-isolate via a temporary medical furlough. [Id. at 70-71]. 

On the same day that the Section 1983 complaint was filed, Plaintiffs also filed a petition 

for writs of habeas corpus, Jeffreys, [1], purportedly on behalf of themselves and all other similarly 

situated individuals. They seek to represent a class consisting of “all people who are currently or 

who will in the future be housed in an IDOC prison during the duration of the COVID-19 

pandemic.” [Id. at ¶ 111.] Plaintiffs (or Petitioners in habeas parlance) articulate the same six 

subclasses they claim to represent as are laid out in the Section 1983 complaint. See [id.]. The 

petition seeks immediate medical furlough for individuals in subclasses 1 and 2, immediate 

transfer to home detention of members of subclasses 3, 4, and 5, and immediate award of 180 days 
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of sentencing credit to members of subclass 6. [Id.] With the petition, Plaintiffs filed a motion for 

an expedited hearing. Jeffreys, [3]. 

II. Legal Standard

Preliminary injunctive relief is “an extraordinary and drastic remedy, one that should not 

be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. 

Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (quotation marks and citation 

omitted); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 

1998) (same). The Seventh Circuit uses a two-step analysis to assess whether preliminary 

injunctive relief is warranted. See Girl Scouts of Manitou Council, Inc. v. Girl Scouts of USA, 

Inc., 549 F.3d 1079, 1085–86 (7th Cir. 2008). This analysis is the same one that is used to 

determine if a TRO is warranted. Gray v. Orr, 4 F. Supp. 3d 984, 989 n.2 (N.D. Ill. 2013). “In 

the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) 

absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final 

resolution; (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success 

on the merits.” Turnell v. CentiMark Corp., 796 F.3d 656, 661–62 (7th Cir. 2015). If the movant 

makes the required threshold showing, then the court moves on to the second stage and considers: 

“(4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully 

denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the 

effects, if any, that the grant or denial of the preliminary injunction would have on nonparties,” 

i.e., the public interest. Id. at 662. The court must pay “particular regard for the public 

consequences in employing the extraordinary remedy of injunction.” Winter v. Natural Res. Def. 

Council, 555 U.S. 7, 24 (2008). The Court balances the potential harms on a sliding scale against 

the movant’s likelihood ofsuccess. The greater the movant’s likelihood of success, “the less strong 
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a showing” the movant “must make that the balance of harm is in its favor.” Foodcomm Int’l v. 

Barry, 328 F.3d 300, 303 (7th Cir. 2003).

Plaintiffs seek a mandatory preliminary injunction—that is, an injunction requiring an 

affirmative act by the defendant. Because a mandatory injunction requires the court to command 

the defendant to take a particular action, it is “cautiously viewed and sparingly issued.” Knox v. 

Shearing, 637 F. App’x 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 

293, 295 (7th Cir. 1997)); see also W. A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th 

Cir. 1958) (“mandatory injunctions are rarely issued and interlocutory mandatory injunctions are 

even more rarely issued, and neither except upon the clearest equitable grounds” (quotation marks 

and citation omitted)); ChoiceParts, LLC v. Gen. Motors Corp., 203 F. Supp. 2d 905, 914 (N.D. 

Ill. 2002) (same).

The preliminary injunction, or even TRO, that Plaintiffs seek would give them much of the 

relief the Pritzker action requests, and likely all of the relief that subclasses 1 and 2 request. This 

type of request, which “give[s] the movant substantially all the relief he seeks,” “is disfavored, and 

courts have imposed a higher burden on a movant in such cases.” Boucher, 134 F.3d at 827 (citing

Selchow & Righter Co. v. Western Printing and Lithographing Co., 112 F.2d 430, 431 (7th Cir. 

1940); Phillip v. Fairfield University, 118 F.3d 131, 133 (2d Cir.1997); SCFC ILC, Inc. v. Visa 

USA, Inc., 936 F.2d 1096, 1098–99 (10th Cir. 1991); Dakota Indus., Inc. v. Ever Best Ltd., 944 

F.2d 438, 440 (8th Cir. 1991); and Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th 

Cir. 1963)); see also W.A. Mack, Inc. v. General Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958)

(“A preliminary injunction does not issue which gives to a plaintiff the actual advantage which 

would be obtained in a final decree.”); Hanover Ins. Grp. v. Singles Roofing Co., 2012 WL 

2368328, at *11 (N.D. Ill. June 21, 2012) (because the plaintiff amended the complaint to seek 
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both preliminary and permanent relief, granting a TRO or preliminary injunction would not give 

the plaintiff “the actual advantage which would be obtained in the final decree” (quoting W.A. 

Mack, 260 F.2d at 890)); Harlem Algonquin LLC v. Canadian Funding Corp., 742 F. Supp. 2d 

957, 962 (N.D. Ill. 2010) (“‘[i]t is one thing for a court to preserve its power to grant effectual 

relief by preventing parties from making unilateral and irremediable changes during the course of 

litigation, and quite another for a court to force the parties to make significant alterations in their 

practices’ before a trial on the merits. So much more so if the alteration would amount to 

irreversible final relief.” (citation omitted)).

III. Discussion

A. Section 1983, Habeas, or Both?

Since the initiation of this litigation the question of why Plaintiffs filed two separate 

lawsuits advancing essentially the same allegations and requesting essentially the same relief has 

perplexed the Court. It appears to have challenged the parties as well. In their reply brief, Plaintiffs 

complain that “Respondent cannot have it both ways.” [24, at 8.] Indeed, a careful review of the 

briefs shows that both sides are guilty of taking somewhat inconsistent positions across the two 

cases. This observation is not surprising, nor is it meant disparagingly, for the briefs were 

remarkable both in their quantity and quality—and all the more so in the time frame given to 

accommodate the exigent circumstances. But the question remains, is it even proper to bring a 

Section 1983 action and a petition for writ of habeas corpus at the same time on the same facts 

seeking the same remedy? As explained below, the answer (though not without doubt) seems to 

be yes.

It is an accepted practice to plead alternative—and even inconsistent—theories of relief, 

but ordinarily this takes place within a single action. Nonetheless, as the declaration of Professor 
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Resnik filed with Plaintiffs’ reply brief explains, “the intersection of habeas and civil rights claims

brought under 42 U.S.C. § 1983” constitutes “a dense area of law and doctrine that can be daunting 

for litigants and jurists alike.”9 [24-3 at 5-6.] As Professor Resnik notes, the “shorthand” version 

of the divide between habeas and Section 1983 goes like this: “when the fact or duration of 

confinement is at issue and release is the remedy, habeas is the preferred route. If prisoners are 

challenging conditions of confinement, § 1983 is the method.” [Id. at 6.] This shorthand is a bit 

too simple, however, because a habeas petitioner seeks release from custody. See 28 U.S.C. §

2254(a) (habeas statute allows challenges to “custody in violation of the Constitution or laws or 

treaties of the United States”). This is an important point, because Plaintiffs here stress that “they 

do not seek relief from the underlying criminal judgments * * * [n]or do they seek speedier release 

from custody.” [28, at 9.] See Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (explaining 

that a claim seeking to reinstate “work release” with “less confinement than ordinary 

imprisonment” was a Section 1983 claim because it did not challenge the inmate’s custodial 

status). Instead, they are asking to be released from prison temporarily, “while remaining in the 

custody and control of IDOC.” [24, at 2.] They also emphasize that they “challenge only the 

conditions of their confinement.” [28, at 9.] Those concessions support the proposition that 

Section 1983 provides a proper rubric for analysis. Yet, Plaintiffs do seek as a remedy at least 

temporary release from the physical confines of not only their cells, but the entire prison 

environment, which they contend is unsafe because (in Professor Resnik’s words) “density puts 

people at medical risk.” [24-3 at 6.]

9 Professor Resnik’s work is well-known to the Court. She is unquestionably one of the nation’s leading 

experts in civil procedure and prison litigation, both as an academic and as a practitioner on behalf of 

plaintiffs. Her succinct discussion of the “legal thicket” in which the parties find themselves in these two 

cases has provided the equivalent of an amicus brief for which the Court is most appreciative.
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This conundrum is not simply an academic exercise, for “Congress has channeled and 

circumscribed some of federal judicial authority” in this area, through the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA) and the Prison Litigation Reform Act (PLRA) of 

1996, and the Supreme Court too has provided guidance in this area. [24-3 at 5.] The case law 

clearly holds that the PLRA applies in Section 1983 suits, but not to habeas petitions. See, e.g., 

Jones v. Bock, 549 U.S. 199, 200 (2007) (“PLRA claims are typically brought under 42 U.S.C. § 

1983[.]”); Walker v. O'Brien, 216 F.3d 626, 639 (7th Cir. 2000) (“the requirements of the PLRA 

do not apply to properly characterized habeas corpus actions”). And it expressly reflects the 

traditional shorthand understanding of the differences between the two types of actions, as its

provisions apply to civil actions “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 expressly exclude “habeas proceedings challenging the fact or duration of confinement 

in prison.” 18 U.S.C. § 3626(g)(2).

Together, the statutes and case law weave a thick and tangled web. As Professor Resnik 

further explains, “because state prisoners who rely on 28 U.S.C. § 2254 have to exhaust state 

judicial remedies, they may seek to use § 1983, to which that requirement does not apply. And, 

because the PLRA affects § 1983 litigants, prisoners may hope to avoid its strictures by filing 

under habeas.” [24-3 at 6.] Those two sentences identify the precise dilemma that faced counsel 

for Plaintiffs as they contemplated their legal options in the present circumstances. On the one 

hand, many cases view Eighth Amendment claims like those asserted here “to be appropriate for 

§ 1983 because they relate to conditions.” [Id.] On the other hand, the unique context in which 

litigation over COVID-19 arises may cast some doubt on that seemingly obvious proposition 

because the sudden threat to mortality from the spread of the virus in a congregate setting may 
17

affect the fact or duration of confinement. These unprecedented circumstances, Professor Resnik 

posits, “collapse the utility and purpose of drawing distinctions between what once could be 

coherently distinguished” and lead to the conclusion that “COVID-19 claims ought to be 

cognizable under both provisions.” [Id.]

The upshot of the foregoing analysis is that it is abundantly clear that Plaintiffs may 

proceed on their claims under Section 1983 and at least plausible—though far less certain—that 

they also have a right to seek habeas relief as well. To test the latter proposition, the Court looks 

to the controlling decisions of the Supreme Court and the Seventh Circuit. Those cases reveal 

neither a ringing endorsement nor an outright prohibition. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 

1843, 1862 (U.S. 2017) (“we have left open the question whether [detainees] might be able to 

challenge their confinement conditions via a petition for a writ of habeas corpus”); Bell v. Wolfish, 

441 U.S. 520, 526 n.6 (1979) (“we leave to another day the question off the propriety of using a 

writ of habeas corpus to obtain review of the conditions of confinement”); Preiser v. Rodriguez, 

411 U.S. 475, 499 (1973) (“When a prisoner is put under additional and unconstitutional restraints 

during his lawful custody, it is arguable that habeas corpus will lie to remove the constraints 

making custody illegal”); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (“While the 

Supreme Court left the door open a crack for habeas corpus claims challenging prison conditions, 

it has never found anything that qualified”). As Petitioners recognize [24, at 17], the Seventh 

Circuit’s reading of Preiser “is narrower than that of other circuits.” Still, given (1) Ziglar’s 

continued recognition that the question remains open and (2) the exigent circumstances present in 

this litigation, the Court will consider Petitioners’ habeas claim after assessing Plaintiffs’ request 

for the same relief under Section 1983.

B. Direct Release or a “Process”?
18

There is a second threshold issue to note at the outset. In their complaint—and likewise in 

the habeas action—Plaintiffs requested immediate medical furloughs for subclasses 1 and 2, 

immediate transfers to home detention for subclasses 3, 4, and 5, and an immediate award of good 

time credit for subclass 6, along with the appointment of a special master. Their opening brief in 

support of emergency injunctive relief on behalf of subclasses 1 and 2 likewise sought a direct 

transfer order [see 9, at 55.] In their reply, Plaintiffs complain that Defendants have 

“mischaracterize[d] the relief plaintiffs are seeking, suggesting that plaintiffs seek to unleash a 

tsunami of dangerous ‘felons’ on unwitting communities, when in reality no such thing is true.” 

[28, at 1.] Perhaps that is not what Plaintiffs intended by initiating this lawsuit, but one can hardly 

blame Defendants for drawing that conclusion based on how Plaintiffs’ request for relief was 

framed at the start of this litigation. 

In an ordinary case, a significant transformation in how the plaintiff frames the object of 

the case often is dealt with by the filing of an amended complaint that puts Defendants on notice 

that the game has changed. Needless to say, this is no ordinary case and allowance must be made 

for adjustments on the fly. As of this Monday, Plaintiffs had provided a clear indication of such a 

change in direction, explaining that they do not assert a right to an order directly commanding an 

immediate furlough—as the complaint stated—but instead “seek a process through which subclass 

members eligible for medical furlough will be identified and evaluated based on a balancing of 

public safety and public health needs, and transferred accordingly” [24, at 6.] Plaintiffs have 

further proposed a “remedial plan” pursuant to which this court-ordered and court-supervised 

process would unfold. [Id. at 5.] Given the disconnect between Plaintiffs’ initial filings last week 

and their briefs filed this week, one cannot fault Defendants for characterizing Plaintiffs’ revised 

position as “backpedaling” [26, at 16] or for seeking leave to file a sur-reply [32], which the Court 
19

has accepted. Nor can one cast aspersions on Plaintiffs for crafting an evolving proposal to deal 

with an evolving situation on the ground. The important thing for purposes of the litigation is that 

the parties have had an adequate opportunity to understand the claims as they exist today and to 

state their positions in advance of a ruling. The extensive briefs reflect a fair—indeed, an 

extensive—exposition of the issues, both as presented in the complaint and initial brief and as 

modified in the later briefs. In the interest of completeness, the Court will address both iterations 

of Plaintiffs’ claims.

C. Section 1983 Claim

1. The PLRA

Turning first to Plaintiffs’ Section 1983 claims, the Court must confront yet another 

threshold issue which the parties have briefed extensively—namely, the application of the PLRA 

to Plaintiffs’ claims. As noted above, through the PLRA, Congress “channeled and circumscribed 

some of federal judicial authority” in ways that “affect[] § 1983 litigants.” [24-3 at 5.] Although 

the PLRA is codified at 42 U.S.C. § 1997e, it encompasses the provisions of 18 U.S.C. § 3626, 

which is titled “appropriate remedies with respect to prison conditions.” Section 3626 begins by 

stating that “[p]rospective relief in any civil action with respect to prison conditions shall extend 

no further than necessary to correct the violation of the Federal right of a particular plaintiff or 

plaintiffs.” 18 U.S.C. § 3626(a)(1). It also directs courts to “give substantial weight to any adverse 

impact on public safety or the operation of the criminal justice system caused by the relief.” Id. 

The term “civil action with respect to prison conditions” is defined broadly to include “any civil 

proceeding arising under Federal law with respect to the conditions of confinement and the effects 

of actions by government officials on the lives of persons confined in prison,” but explicitly “does 

not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” 
20

18 U.S.C. § 3626(g)(2). The statute specifically addresses preliminary injunctive relief, mandating 

that any such relief in a case involving prison conditions “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).

The application of the provisions discussed in the preceding paragraph is not disputed

between the parties. The parties part ways, however, in regard to whether the relief requested falls 

within the meaning of the PLRA’s special procedures for consideration of a “prisoner release 

order.” 18 U.S.C. § 3626(a)(3). The statute defines that term to “include[] 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). No court may enter a prisoner release order unless 

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

of the Federal right sought to be remedied” and “the defendant has had a reasonable amount of 

time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(1)-(2). If those strictures 

have been satisfied, only a three-judge court can actually consider and issue a prisoner release 

order—and even then only if it finds by clear and convincing evidence that “crowding is the 

primary cause of the violation of a Federal right” and “no other relief will remedy the violation.” 

18 U.S.C. § 3626(a)(3)(E)(i)-(ii).

2. Prisoner Release Orders Under the PLRA

In looking for guidance on how to address the parties’ dispute concerning the reach of the 

PLRA’s limitations on “prisoner release orders,” the Court has endeavored to locate prior decisions 

in which a federal court has been asked to get involved in the potential transfer of thousands of 

state inmates out of state prisons through any available vehicle on the basis of their conditions of 
21

confinement. The Court has found—and the parties have cited—just two, which went together

from the federal district courts in California all the way to the Supreme Court and then back again, 

and still remain open today, though in a largely dormant phase. See Coleman v. Newsom, Case 

No. 2:90-cv-0520 KJM DB P (E.D. Cal.) & Plata v. Newsom, Case No. 4:01-cv-01351-JST (N.D. 

Cal.), --- F. Supp. 3d. ---, 2020 WL 1675775, at *3 (Three-Judge Court April 4, 2020) (explaining 

that since 2015, the three-judge court has “largely stepped back as the individual Coleman and 

Plata courts have continued to work” on the compliance phase of the cases). Because of the 

uniqueness of the relief requested here, a discussion of the most analogous cases appears in order.

In Brown v. Plata, 563 U.S. 493 (2011), the Supreme Court upheld an order of a threejudge district court requiring California to reduce its prison population to 137.5 percent of design 

capacity within two years. In that case, two lawsuits were brought by California prisoners with 

serious mental disorders challenging prison crowding and inadequate mental health care as Eighth 

Amendment violations. In one of the cases, a special master was appointed to oversee 

development and implementation of a remedial plan. In the other case, the state stipulated to a 

remedial injunction, but failed to comply with the injunction, after which the district court 

appointed a receiver to oversee remedial efforts. The plaintiffs in both cases requested that a threejudge panel of the district court be convened pursuant to the PLRA, 18 U.S.C. § 3626(a)(3). Both 

district courts granted the motions and the cases were consolidated before a three-judge panel. The 

three-judge court, after determining that plaintiffs suffered from constitutional violations that were 

caused primarily by overcrowding, entered a remedial order requiring the State of California to 

reduce its prison population to 137.5 percent of design capacity within two years. 

The Governor appealed and the Supreme Court affirmed. The Court determined that the 

PLRA's requirement of allowing the state a reasonable amount of time to comply with previous 
22

court orders was satisfied where, when the three-judge district court was convened, 12 years had 

passed since the appointment of a special master to oversee development and implementation of a 

remedial plan and the basic plan to solve the crisis through construction, hiring, and procedural 

reforms had remained unchanged for years. Plata, 563 U.S. at 514-15. The Court also held that 

the evidence supported the three-judge court’s determination that crowding was the primary cause 

of the Eighth Amendment violations and that no other relief would remedy the violations. The 

evidence showed that there were severe, months-long delays and backlogs for prisoners needing 

urgent mental health and physical care, as well as unsafe and unsanitary living conditions caused 

by crowding. Id. at 519-20. Further, the Court determined that the three-judge court properly gave 

substantial weight to public safety, finding various available methods of reducing overcrowding

that would have little or no impact on public safety, such as expansion of good-time credits and 

diversion of low-risk offenders to community programs such as drug treatment, day reporting 

centers, and electronic monitoring. The Court noted that the three-judge court’s order “took 

account of public safety concerns by giving the State substantial flexibility to select among these 

and other means of reducing overcrowding.” Id. at 537. Finally, the Court concluded that the cap 

of 137.5 percent capacity was supported by evidence in the record, including expert witnesses who 

recommended a 130 percent population limit and the federal BOP’s own long-term goal of 130 

percent. Id. at 539-40.

As the foregoing illustrates, the only instance of which the Court is aware that a federal 

court has been involved in ordering the release of thousands of state prisoners took place in 

radically different circumstances—after the passage of 12 years, the development of a full record, 

the input of both a special master and a receiver, and a trial lasting almost three weeks. Clearly 

there is no time for even a fraction of that attention, so the Coleman/Plata experience may have 
23

little to offer in the way of guidance, except in its application of the order of operations under the 

PLRA—the preliminary requirements for issuing a less intrusive order, the reasonable opportunity 

to comply, and what type of claim requires the appointment of a three-judge court. But there is a 

recent postscript that may offer greater insight on how the PLRA should apply in this case.

Less than a week ago, the same three-judge panel in California whose work was reviewed 

by the Supreme Court in Plata issued an order denying an emergency motion seeking release of 

“an unspecified, but significant, number of prisoners so that the prison population can be reduced 

to a level sufficient to allow physical distancing to prevent the spread of COVID-19.” Coleman 

& Plata, 2020 WL 1675775, at *1. As in this case, the plaintiffs there sought an order directing 

the Governor of California and other state officials “to release to parole or post-release community 

supervision” certain categories of inmates who were low risk, non-violent, and/or close to their 

release dates and “to release or relocate inmates who, because of their age or other medical 

conditions, are at a high risk of developing a severe form of COVID-19.” Id. at *3. Although the 

plaintiffs did not specify a number of inmates who fall within those categories, they argued that 

the number should be sufficient “to allow all remaining inmates to practice physical distancing, 

especially those who reside in crowded dorm housing.” Id. They requested that specific relief 

based on the CDC’s guidance that “[t]hus far, the only way to stop [COVID-19’s] spread is through 

preventive measures—principal among them maintaining *** physical distancing sufficient to 

hinder airborne person-to-person transmission,” which is “uniquely difficult in a congregate

environment like a prison.” Id. at *5 (citing CDC guidance).

The panel determined that it lacked authority to consider the request because it was “not 

actually a modification of the 2009 order but rather new relief based on the new threat of harm 

posed by COVID-19.” Coleman & Plata, 2020 WL 1675775, at *4. But perhaps significantly for 
24

present purposes, the panel gave every indication that all phases of the PLRA’s remedial scheme—

including the appointment of a new three-judge court—could apply to the type of relief sought by 

the Plaintiffs in California, which closely mirrors the relief sought for subclasses 1 and 2 in the 

complaint here—especially in regard to the request to “release or relocate” older inmates and those 

who are especially vulnerable due to medical conditions. To begin, the panel noted that as of the 

time of its ruling the Plaintiffs “likely cannot satisfy the [PLRA’s] prior order requirement because 

there have not yet been any orders requiring Defendants to take measures short of release to address 

the threat of the virus; nor have Defendants had a reasonable time in which to comply.” Id. at *4.

10 

The panel further observed that the plaintiffs retained the option to “go before a single judge to 

press their claim that Defendants’ response to the COVID-19 epidemic is constitutionally 

inadequate.” Id. at *7. It added that “[i]f a single-judge court finds a constitutional violation, it 

may order Defendants to take steps short of release necessary to remedy that violation.” Id.

However, “if that less intrusive process proves inadequate,” the Court concluded, “Plaintiffs may 

request, or the district court may order sua sponte, the convening of a three-judge court to 

determine whether a release order is appropriate.” Id. In this Court’s view, the clear impression 

to be drawn from the California panel’s opinion is that, in its view, claims seeking an order to 

“release or relocate” inmates on account of the COVID-19 pandemic may implicate every aspect 

of the PLRA’s remedial scheme, including the appointment of a three-judge court.

3. Are Plaintiffs Requesting a “Prisoner Release Order”?

With that discussion as prelude, the next question is whether Plaintiffs seek a “prisoner 

release order” within the meaning of Section 3626(a)(3) and (g)(4). If one focuses on Plaintiffs’ 

complaint and initial brief, this is obvious. Plaintiffs devote pages to describing the congregate 

10 The panel recognized, as does this Court, “that what is reasonable in ordinary times may be quite different 

from what is reasonable in these extraordinary times.” Id. n.9.
25

conditions in IDOC facilities in support of the proposition that crowded conditions inherent in 

living arrangements in a prison setting are unsafe during a pandemic. They then offer the opinions 

of numerous affiants who universally advance one message: the only solution is the immediate 

release of inmates in large numbers. A fair summary of the bulk of the complaint and brief in 

support of immediate injunctive relief is that the crowded conditions of IDOC facilities require the 

Court to issue an order immediately reducing the prison population in Illinois by ordering the 

members of proposed subclasses 1 and 2 to medical furloughs. In the Court’s view, if that were 

the relief Plaintiffs seek in this litigation, it unquestionably could be awarded only by a three-judge 

court under the PLRA.

As noted above, in their more recent filings, Plaintiffs submit that are not seeking a “mass 

release order.” Instead, Plaintiffs seek a “process through which subclass members eligible for 

medical furlough will be identified and evaluated based on a balancing of public safety and public 

health needs, and transferred accordingly.” [24, at 5.] All of Defendants’ briefs in this matter 

contend that such a process already is in place. But Plaintiffs find Defendants’ efforts wanting, 

and thus they request the Court’s involvement in the creation and oversight of a remedial plan that 

would result in “an expedited, individualized review and relocation” of inmates who qualify. [Id.

at 10.] The order that the Court would issue to set that process in motion, Plaintiffs say, is not a 

“prisoner release order” within the meaning of the PLRA. Such orders, they argue, involve mass 

prisoner releases or population caps and issue only to remedy violations primarily caused by 

overcrowding. [See 24, at 7.] And that is not the kind of order they want.

The Court must look to the language of the PLRA, which speaks in detail and uses broad 

and categorical language in defining its scope. It does not speak of “mass” releases, “population 

caps,” or even “overcrowding”—though it does refer to “crowding,” which must be the “primary 
26

cause of the violation of a Federal right” to serve as the predicate for a release order under the 

statute. 18 U.S.C. § 3626(a)(3)(E). What it does say is that any order “that has the purpose or 

effect of reducing or limiting a prison population, or that directs the release from or nonadmission 

of prisoners to a prison” lies exclusively within the province of three-judge courts. 18 U.S.C. § 

3626(g)(4). The reference to “crowding” may have the effect of removing single-plaintiff cases 

from within the ambit of Section 3626(a)(3), because an order involving only one inmate might 

not be viewed as reducing a prison population in any meaningful way.11 

Plaintiffs stress that the transfers they hope to accomplish would not release any class 

members from custody; they would simply effectuate changes in the inmates’ physical locations, 

and the changes would be of a limited duration. Plaintiffs rely on Illinois statutes to show that 

they would remain in custody within the meaning of state law. But 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. The question is not whether Plaintiffs would remain in custody under 

state law. The question is whether the requested relief would have the “purpose” or the “effect” 

of “reducing or limiting the prison population,” or whether it would “direct[] the release from 

* * * a prison.” 18 U.S.C. § 3626(g)(4). There is no doubt that Plaintiffs’ request – even if couched 

in terms of a process – would have the purpose and the effect of reducing the population in Illinois 

prisons.

11 A single judge in California did order an “exclusionary order for medically vulnerable prisoners” during 

a “Valley Fever” epidemic several years ago. Plata v. Brown, 2013 WL 3200587, at *9 (N.D. Cal. June 

24, 2013). In so doing, the judge rejected the notion that “a court could only order that prisoners be 

transferred from one prison to another if overcrowding were the primary cause of the violation.” Id. That 

seems correct and consistent with the orders entered not infrequently in cases involving inmate medical 

problems that may require hospitalization. [See 24, at 10]. But it does not help Plaintiffs, because there 

was no crowding issue at all raised in that instance.
27

Plaintiffs also suggest that they do not seek a remedy for crowding (as the statute frames 

the issue) or overcrowding (as Plaintiffs frame it). But that contradicts the allegations of their 

complaint and their entire theory of the case. One of the central allegations in the complaint is that 

inmates are particularly vulnerable because they live in “congregate settings” in “close quarters” 

with each other. See Cmplt. at ¶ 1 (alleging that “[n]early 37,000 people are incarcerated in 

Illinois, living in close quarters”); id. (“social distancing guidelines can never be fully or 

effectively implemented in prison”); id. at ¶ 32 (alleging that “[p]eople in congregate 

environments, which are places where people live, eat, and sleep in close proximity, face increased 

danger of contracting COVID-19.”); id. at ¶ 36 (“Correctional facilities are inherently congregate 

environments, where large groups of people live, eat, and sleep in close contact with one 

another.”); id. at ¶¶ 37-38 (alleging that inmates are “all congregated together” and cannot 

“adequately distance themselves”); id. at ¶ 43 (alleging the “heightened risk posed by correctional 

settings” because of the close proximity); id. at ¶ 45 (alleging that there is a need to “eliminat[e] 

close contact in congregate environments”). 

In addition, as the ultimate aim of these lawsuits Plaintiffs unmistakably seek to reduce the 

prison population. Reducing the prison population is not just a side effect of the case – it is the 

whole point. They want to remove inmates from prison because they are vulnerable in those 

facilities. See Cmplt. at ¶ 1 (alleging that the Governor and the IDOC need to “drastically reduce 

Illinois’s prison population”); id. at ¶ 3 (“[T]he state must take urgent steps to reduce, furlough, or 

transfer to home detention all that qualify.”); id. at ¶ 4 (alleging that the IDOC is “refusing to 

reduce the number of people living in IDOC”); id. at ¶ 5 (“Class members . . . must be released 

now.”); id. at ¶ 103 (discussing “Plaintiffs’ request for release from physical custody”). The 

Complaint cites declarations from five public health and correctional experts, all of whom 
28

“recommend[] the release from custody” of certain individuals. Id. at ¶ 46; see also id. at ¶ 47 (Dr. 

Robert Greifinger discussing the “release of individuals”); id. at ¶ 49 (Dr. Craig Haney discussing 

that “adult prisons must reduce their populations”); id. at ¶ 50 (Prof. Chris Breyer discussing the 

need to “reduce the number of persons in detention as quickly as possible”); id. at ¶ 51 (Dr. Jaimie 

Meyer discussing “[r]educing the size of the population in jails”); id. at ¶ 52 (Dan Pacholke 

discussing the need to “reduce the prison population”).

Moreover, the impetus for Plaintiffs’ claims is the living conditions inherent in a 

congregate setting during the COVID-19 epidemic. They do not distinguish in any respect among 

the 28 facilities and the myriad living arrangements within those facilities. All prison facilities, 

by definition, have living conditions that prevent inmates from practicing the social distancing 

required by current guidance from the CDC and our state government. As Plaintiffs write in their 

reply brief, there is “no way to make conditions safe within the congregate prison setting.” [24, at 

11.] Defendants do not contest these allegations; in fact, they have repeated them publicly. But 

in asking that inmates be physically transferred from inside the prison to outside of it on the basis 

of these conditions, Plaintiffs plainly are implicating “crowding” as the primary cause of their 

concern. If prisons could be reconfigured to permit social distancing and observance of the CDC’s 

hygiene recommendations, Plaintiffs would have no claim. 

Finally, shifting the focus from an order directly releasing subclasses 1 and 2 (as the 

complaint requested) to an order imposing a court-ordered and court-managed “process” for 

determining who should be released (as the briefs request) does not place this case outside of 

Section 3626(a)(3). Although there is a dispute over the exact number of inmates within proposed 

subclasses 1 and 2—because some inmates are members of both subclasses—the minimum 

number of inmates who would be subject to the procedures in any remedial plan is approximately 
29

12,000. See Cmplt. at ¶ 105 (“Plaintiffs estimate that Subclass 1 contains approximately 12,000” 

inmates).12 Plaintiffs insist that Defendants must act faster to move as many of those individuals 

to medical furlough as possible. The “purpose” of any order compelling the State to engage in that 

process would be to reduce the prison population, and the “effect” of its successful implementation 

would be the same, albeit indirectly. As Plaintiffs’ acknowledge, Defendants already have in place 

several mechanisms to reduce the IDOC census and hundreds of inmates have already been 

released. An order granting the requested relief would simply accelerate that process, placing the 

request squarely within Section 3626(a)(3)—which forbids this Court from granting it.

The upshot is that the PLRA prevents this Court from granting the temporary restraining 

order on the Section 1983 claim, for a number of reasons. First, the statute provides that “no court 

shall enter a prisoner release order unless * * * a court has previously entered an order for less 

intrusive relief that has failed to remedy the deprivation of the Federal right,” and the defendants 

have “had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 

3626(a)(3)(A)(i), (ii). Here, there is no such “previous court order[].” Id. Second, the statute 

provides that “only” a “three-judge court” can enter a prisoner release order. 18 U.S.C. § 

3626(a)(3)(B). So, this Court, standing alone, lacks the authority to issue any order that has the 

“purpose or effect of reducing or limiting the prison population.” Id.; 18 U.S.C. § 3626(g)(4). 

Third, the statute provides that “[p]reliminary 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). Plaintiffs’ proposed 

12 That figure is the floor, assuming that subclass 1 contains all of the inmates in subclasses 2-6. In reality, 

the number of eligible inmates covered by Plaintiffs’ plan is probably much higher. Subclass 1 contains 

12,000 inmates. See Cmplt. at ¶ 105. Subclass 2 contains 4,807 inmates. Id. Subclass 3 contains 700 

inmates. Id. Subclass 4 contains over 9,000 inmates. Id. Subclass 5 contains 2,401 inmates. Id. Subclass 

6 contains 5,308 inmates. Id. 
30

plan does the opposite. Instead of proposing interim steps, Plaintiffs seek the most sweeping form 

of relief – a process to potentially release 12,000 inmates – right off the bat. 

4. Provisional Class Certification

Even if the Court were incorrect in its conclusion that all of the relief that Plaintiffs request 

falls within the scope of Section 3626(a)(3), and thus only could be granted by a three-judge court 

(after Plaintiffs obtain a less intrusive order and Defendants have a reasonable amount of time to 

comply), Plaintiffs would need to clear other serious obstacles before the Court could even reach 

the merits of their claims. One is Plaintiffs’ request that the Court consider granting conditional

relief on a classwide basis.

Federal Rule of Civil Procedure 23 governs class actions. The basic requirements are wellknown and simply stated: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. There 

are other requirements for money damages classes, but those do not apply here because the relief 

sought is injunctive only. See FRCP 23(a)(2). The first and fourth factors are essentially 

uncontested; the putative class numbers more than 10,000 individuals, the named Plaintiffs are 

appropriate, and class counsel are extremely well qualified for this type of litigation. Typicality is 

satisfied if the named plaintiff’s claims “arise from the same event or practice or course of conduct 

that gives rise to the claims of the other class members and [are] based on the same legal theory.” 

Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018). Plaintiffs have made enough of a showing 

to clear that hurdle, too, at least for conditional certification on a motion for preliminary relief. 

That leaves the second element, commonality.

Commonality requires at least one question common to all of the class members, the answer 

to which is “apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc.v. Dukes, 564 U.S. 

338, 350 (2011). For present purposes, the quoted language is key. There are many questions 
31

common to the putative class members that bear on the subject of this litigation. Consideration of 

those questions undoubtedly drove the decisions of counsel in sorting Plaintiffs into six subclasses 

with particular characteristics held in common. But none of those questions is likely to drive the 

resolution of the case. The central dispute is not whether aged, infirm, and vulnerable inmates as 

a group should be given consideration for transfer or release. Defendants agree and by Plaintiffs’ 

own admission “are taking many actions on the list” of mechanisms available under state law for 

moving inmates out of IDOC facilities. [24, at 1.] Plaintiffs simply want the Court to “prod the 

defendants to act more quickly.” [Id. at 2.] And they acknowledge that any plan to do just that 

would require “individualized safety assessments” and “approve[d] home sites.” [28 at 5.]

The Court agrees. Indeed, the public interest—which must be taken into account when 

considering a TRO or preliminary injunction—mandates individualized consideration of any 

inmate’s suitability for release and on what conditions, for the safety of the inmate, the inmate’s 

family, and the public at large. From the inmate’s perspective, his or her own health status at the 

relevant time is paramount. Any inmate who is exhibiting symptoms of infection may be more 

suitable for quarantine or even transfer to a hospital. From the family perspective, an inmate who 

has been exposed to someone (inmate or IDOC personnel) who has tested positive may not be 

suitable for furlough, particularly if the inmate’s proposed destination is a residence already 

occupied by someone equally or more vulnerable. And from the public’s perspective, it is 

important to bear in mind that some portion of the incarcerated population has been convicted of 

the most serious crimes—murder, rape, domestic battery, and so on. Seven of the ten named 

Plaintiffs in fact are serving time for murder. As Plaintiffs rightly acknowledge, some release 

orders would be appropriate only with conditions, such as home detention or lesser forms of 

supervision. And those conditions can only be imposed with resources (e.g., electronic monitors) 
32

and personnel, who are both limited in supply and also subject to the same social distancing 

imperatives as everyone else.

The imperative of individualized determinations, recognized by both sides in this case, 

makes this case inappropriate for class treatment. Each putative class member comes with a unique 

situation—different crimes, sentences, outdates, disciplinary histories, age, medical history, places 

of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of 

transmitting the virus to someone at home detention, likelihood of violation or recidivism, and 

danger to the community. As Plaintiffs point out, commonality “does not require perfect 

uniformity.” [28, at 46 (citing cases).] But it does require more uniformity that these Plaintiffs 

would have on the only matter “apt to drive the resolution of the litigation” (Wal-Mart, 564 U.S. 

at 350)—namely, which class members should actually be given a furlough? And any attempt to 

use the class device even to formulate standards is destined to fail, because those standards largely 

are governed by the various state statutes authorizing different forms of release, which then are 

subject to wide discretion in their application.

Plaintiffs’ own plan underscores that they are seeking a highly individualized, inmate-byinmate form of relief. See Plaintiffs’ Draft Proposed Remedial Plan Related to their Request for a 

Temporary Restraining Order/Preliminary Injunction [24-1]. Plaintiffs want the IDOC to identify, 

“[w]ithin three days of the date of the order,” all inmates who fall within the broad parameters of 

a list of medical conditions. Id. So, the IDOC would need to identify which of the 37,000 inmates 

have a medical condition that qualifies. Then, “[w]ithin 7 days of the date of this order,” the IDOC 

“will use its discretion to transfer inmates” to medical furlough or home detention, unless the IDOC 

determines that it would poses a substantial danger to an identified person that outweighs the threat 

to the inmate’s health from incarceration. Id. As Plaintiffs acknowledge, an “[a]ssessment of the 
33

safety risk must be based on an individualized analysis, and not categorical exclusions (except 

those excluded offenses for furlough or transfer under the law).” By its very nature, the process 

would entail a highly individualized inquiry that is ill-suited to class treatment. Simply put, there 

is no way to decide which inmates should stay, and which inmates should go, without diving into 

an inmate-specific inquiry.

Although the press of time does not permit deep reflection on the point, the Court can 

imagine that the analysis might be different if this were a more typical case. Class treatment might 

be appropriate where the Court has months or years to make decisions on individual aspects of a 

case—for example, an action arising out a common occurrence where liability would be 

established on a classwide basis, followed by individual damages assessments—or if the number 

of permutations were confined in some reasonable manner. But the permutations here are endless, 

as rarely, if ever, will any two plaintiffs be alike on the factors that matter at the point of decision. 

These differences are so vast and fundamental that class treatment, especially in the compressed 

time frame that would allow for effective relief at the height of the pandemic in Illinois, is 

completely unworkable.

5. Federalism and Separation of Powers Concerns

Plaintiffs’ motion also raises serious concerns under core principles of federalism and the 

separation of powers, especially given their request for sweeping relief in the form of a mandatory 

injunction. See Missouri v. Jenkins, 495 U.S. 33, 51 (1990) (“[O]ne of the most important 

considerations governing the exercise of equitable power is a proper respect for the integrity and 

function of local government institutions.”). The Supreme Court repeatedly has cautioned that 

federal courts must tread lightly when it comes to questions of managing prisons, particularly state 

prisons. The Court has gone so far as to opine that “[i]t is difficult to imagine an activity in which 
34

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

and procedures, than the administration of prisons.” Preiser, 411 U.S. at 492-92; see also Turner 

v. Safley, 482 U.S. 78, 85 (1987) (“[W]here a state penal system is involved, federal courts have 

* * * additional reason to accord deference to the appropriate prison authorities.”); Meachum v. 

Fano, 427 U.S. 215, 229 (1976) (“Federal courts do not sit to supervise state prisons, the 

administration of which is of acute interest to the States.”).

There are serious separation of powers concerns, too, because running and overseeing 

prisons is traditionally the province of the executive and legislative branches. See Turner, 482 

U.S. at 84-85 (“Running a prison is an inordinately difficult undertaking that requires expertise, 

planning, and the commitment of resources, all of which are peculiarly within the province of the 

legislative and executive branches of government. Prison administration is, moreover, a task that 

has been committed to the responsibility of those branches, and separation of powers concerns 

counsel a policy of judicial restraint.”). The judiciary is ill-equipped to manage decisions about 

how best to manage any inmate population—let alone a statewide population of tens of thousands 

of people scattered across more than a dozen facilities. And the concern about institutional 

competence is especially great where, as here, there is an ongoing, fast-moving public health 

emergency. 

It is no accident that the federal judiciary only rarely intrudes into the management of state 

prisons, and only once in history has actually ordered the release of prisoners on a scale anywhere 

near what Plaintiffs hope to accomplish through this litigation. And in that instance, inmates were 

released only after a painstakingly long process, informed by voluminous expert testimony and a 

weeks-long trial. This is why the Supreme Court too has noted how “ill equipped” the courts are 

to deal with the “complex and intractable” problems of prisons and remarked that “[j]udicial 
35

recognition of that fact reflects no more than a healthy sense of realism.” Rhodes v. Chapman, 

101 S. Ct. 2392, 2401 n.16 (1981).

Plaintiffs insist that they “do not seek to place IDOC under the supervision of this Court.” 

[24, at 12.] But they do intend to place the Court squarely in the middle of refereeing whose plan 

can best ensure release of inmates and on what conditions. As Plaintiffs note, if their proposal is 

not agreeable to Defendants, they “are free to proffer other plans to the Court.” [Id. at 13.] In 

saying that the Court should hesitate before venturing into such an arrangement, the Court does 

not mean to say it never is appropriate. Plata holds otherwise. But here, and now, even if Plaintiffs 

could establish a right to the relief they want—and they cannot for reasons stated above (Section 

3626(a)(3)) and below (the absence of a likelihood of success on the merits)—any effort for the 

Court to insert itself into this process likely would be ineffectual in dealing with the actual situation 

at hand. The statistical experts on whose work both the federal and state governments have relied 

in shaping their expectations estimate that the peak for the current wave of COVID-19 will hit in 

Illinois within the next few days, and that the number of deaths and the need for invasive medical 

equipment will decline rapidly in the weeks that follow. See Institute for Health Metrics and 

Evaluation, University of Washington Medicine, “COVID-19 projections assuming full social 

distancing through May 2020,” available at https://covid19.healthdata.org/united-states-ofamerica/illinois (last visited Apr. 10, 2020). To be sure, for the reasons acknowledged above, the 

prison environment presents special challenges and may not bend to the same curve as the rest of 

the state collectively. Yet today’s information shows that only one IDOC facility has more that 

ten confirmed cases, and IDOC has in place measures to deal with suspected and confirmed cases 

within its facilities and to limit the chance of the virus being brought into the facility by outsiders. 
36

By the time the Court could develop even a partially-informed plan for dealing with an infectious 

disease in the prison system, the current wave likely will have passed.13

Finally, there are potential separation of powers problems, too, with forcing the executive 

branch to exercise its discretion in a particular way. Here, Plaintiffs want this Court to direct—or, 

at a minimum, strongly influence—the Governor and an administrative agency to make

discretionary decisions under state law to grant a medical furlough or a home detention. See 730 

ILCS 5/3-11-1(a)(2) (providing that the IDOC “may” grant a 14-day medical furlough); 730 ILCS 

5/5-8A-3(d) (providing that certain inmates “may” be placed in home detention under certain 

conditions); 730 ILCS 5/5-8A-3(e) (same). Just as the “Executive Branch has exclusive authority 

and absolute discretion to decide whether to prosecute a case,” United States v. Nixon, 418 U.S. 

683, 693 (1974), so too the executive branch has the discretion to decide whether to end 

incarceration early. 

6. The Merits

In the interest of completeness—and in the event that any or all of the foregoing analysis 

is incorrect—the Court now turns to the applicable factors for considering a request for preliminary 

injunctive relief on the merits. As noted at the outset, “[i]n the first phase, the party seeking a 

preliminary injunction must make a threshold showing that: (1) absent preliminary injunctive 

relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no 

adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits.” Turnell, 

796 F.3d at 661-62. If the movant makes the required threshold showing, then the court moves on 

to the second stage and considers: “(4) the irreparable harm the moving party will endure if the 

13 The Court is aware that experts have warned of a possible second (or third) wave, perhaps in the late fall 

or early winter when the normal flu season arrives. Nothing in today’s ruling forecloses a later request for 

relief based on future circumstances.
37

preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if 

it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary 

injunction would have on nonparties,” i.e., the public interest. Id. at 662. The court must pay

“particular regard for the public consequences in employing the extraordinary remedy of 

injunction.” Winter, 555 U.S. at 24.

As a concession to the press of time, the Court will move directly to the third part of the 

first phase analysis, for it is sufficient to end the inquiry. As explained below, Plaintiffs cannot 

show a reasonable likelihood of success on the merits on either of their substantive claims.

a. Likelihood of success on the merits

To state a claim under § 1983, a plaintiff must show: (1) his constitutional rights were 

violated (2) by a person acting under color of state law. Reynolds v. Jamison, 488 F.3d 756, 764 

(7th Cir. 2007). Plaintiffs advance two claims under the Eighth Amendment and the ADA. 

Defendants plainly are state actors, so the only question on the table is whether Plaintiffs’ 

constitutional rights have been violated—or, more precisely, whether Plaintiffs have a reasonable 

chance of showing that they have been.

i. Eighth Amendment claim

In cases involving the conditions of confinement in a prison, two elements are required to 

establish a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment: 

“first, an objective showing that the conditions are sufficiently serious—i.e., that they deny the 

inmate the minimal civilized measure of life’s necessities creating an excessive risk to the inmate’s 

health and safety—and second, a subjective showing of a defendant’s culpable state of mind.” Isby

v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (internal citations and quotation marks omitted). The 

culpable mental state required to state a claim under the Eighth Amendment is “one of deliberate 
38

indifference to inmate health and safety.” Daugherty v. Page, 906 F.3d 606, 611 (7th Cir. 2018) 

(quoting Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016)) (internal quotation marks 

omitted). 

Again, the analysis can be truncated, because nobody contests the serious risk that COVID19 poses to all inmates and prison staff, and even more so to the most vulnerable inmates like those 

who comprise the two subclasses encompassed within the instant motion. Likewise, nobody 

contests Defendants’ knowledge of this grave situation. The lead Defendant, Governor Pritzker, 

has repeatedly made reference to the unique risks faced by incarcerated individuals in his daily 

press briefings. So, deliberate indifference is the whole ball game on the merits of Plaintiffs’ 

Eighth Amendment claim.

Deliberate indifference, as the Seventh Circuit has explained, imposes a “high hurdle,” for 

it requires a showing “approaching total unconcern for the prisoner’s welfare.” Rosario v. Brown, 

670 F.3d 816, 821 (7th Cir. 2012) (internal quotations and citation omitted). Neither “negligence 

[n]or even gross negligence is enough; the conduct must be reckless in the criminal sense.” Lee v. 

Young, 533 F.3d 505, 509 (7th Cir. 2008). And, given the constantly shifting parameters and 

guidance regarding how to combat a previously little known virus, it is worth pointing out that 

“the mere failure * * * to choose the best course of action does not amount to a constitutional 

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

Under this standard, Plaintiffs have no chance of success. Defendants have come forward 

with a lengthy list of the actions they have taken to protect IDOC inmates. Some are designed to 

protect inmates in the prison environment; others to consider release under several different 

programs. On an almost daily basis, the Governor and/or the Department have expanded or 

modified their procedures, including earlier this week through an executive order making it easier 
39

for the Director to approve furloughs. Plaintiffs acknowledge that Defendants “are taking many 

actions on the list.” [24, at 1.] And the numbers prove it—as 644 inmates have been released 

since March 2. [36, at 2.]

Plaintiffs’ complaint is that Defendants “are simply not moving quickly or broadly 

enough,” and that “the Court’s intervention is necessary to prod the defendants to act more 

quickly.” [24, at 1-2.] Setting aside the concerns raised above whether judicial intervention would 

be effective—probably not in the short term; perhaps in the long term—objections about the speed 

or scope of action and suggestions for altering it through a “prod” do not support either half of the 

phrase “deliberate indifference.” Clearly Defendants are trying, very hard, to protect inmates 

against the virus and to treat those who have contracted it. The record simply does not support 

any suggestion that Defendants have turned the kind of blind eye and deaf ear to a known problem 

that would indicate “total unconcern” for the inmates’ welfare. Rosario, 670 F.3d at 821. Nor 

would the record support any claim that Defendants lack a plan for implementing exactly what 

Plaintiffs have requested—individualized decisions on release through a panoply of vehicles 

guided by administrative discretion. It may not be the plan that Plaintiffs think best; it may not 

even be the plan that the Court would choose, if it were sufficiently informed to offer an opinion 

on the subject. But the Eighth Amendment does not afford litigants and courts an avenue for de 

novo review of the decisions of prison officials, and the actions of Defendants here in the face of 

the COVID-19 outbreak easily pass constitutional muster.

ii. ADA claim

Title II of the ADA prohibits public entities from discriminating against qualified 

individuals with disabilities by depriving them of opportunity to participate in the services, 

programs, or activities of the public entity because of their disabilities. 42 U.S.C. § 12132. Title 
40

II of the ADA applies to prisons, as “[s]tate prisons fall squarely within the statutory definition of 

“public entity” under the ADA. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). 

To make out a claim under Title II of the ADA, Plaintiffs must show that: (1) each Plaintiff is a 

“qualified individual with a disability;” (2) Defendants denied Plaintiffs “the benefits of the 

services, programs, or activities of a public entity;” and (3) Plaintiffs were discriminated against 

“by reason of” their disabilities. Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) 

(quoting 42 U.S.C. § 12132). Plaintiffs may establish discrimination in one of three ways: “(1) 

the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide 

a reasonable modification, or (3) the defendant’s rule disproportionally impacts disabled people.” 

Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999).

Here, there is no allegation of intentional discrimination on the basis of disability—i.e., 

that Defendants have singled out disabled inmates and excluded them from consideration for 

release. And nothing on the face of the many vehicles identified in Defendants’ brief for 

effectuating release even mentions disabilities, much less bars disabled inmates from accessing 

them. As Plaintiffs recognize, all decisions on release—under the furlough program that is the 

focus for subclasses 1 and 2 and otherwise—must be made on an individualized basis and subject 

to the exercise of discretion. Nothing in the record supports the notion that any member of the 

proposed class, including one who is a qualified individual with a disability, has been denied the 

reasonable modification of consideration for release—which Plaintiffs now concede is the most 

they can ask for. Nor is there any basis for concluding that the discretionary decisions on whom 

to release (and not to release) have a disproportionate impact on disabled inmates, especially when 

one considers the large number of non-disabled inmates who also may have strong claims to 

priority for release on account of their susceptibility to COVID-19, such as elderly inmates. In 
41

short, Plaintiffs do not have a reasonable likelihood of success under any of the three ways of 

establishing an ADA discrimination claim.14

b. Second stage factors

Having concluded that Plaintiffs do not have a reasonable likelihood of success on either 

of their Section 1983 claims, the Court need not move on to the “second stage” of the 

TRO/preliminary injunction analysis. Nevertheless—and very briefly—the answer to the question 

“to release or not to release” is by no means obvious. Setting aside Stateville, the current rate of 

incidence of COVID-19 infection inside the IDOC is mercifully low, and the counties in which 

the facilities housing the named Plaintiffs (apart from Will) are far less densely populated than the 

urban areas in which the virus is more prevalent. To the extent that members of the subclasses 

would be released to homes in those areas, they may have a similar risk of contracting the virus 

whether they remain in custody or are released in the near future. 

The final factor in the “second stage,” the public interest, also cuts both ways. As Plaintiffs 

stress, the public interest surely is served by avoiding widespread outbreaks of COVID-19 

infection, and prison environments present a heightened risk of such outbreaks occurring, as 

evidenced at Stateville and the Cook County Jail. These are good reasons for Defendants to work 

hard to reduce the prison population, and especially to remove the highest-risk inmates, either 

though outright release or transfer to some other location while still in custody, provided that doing 

14 Plaintiffs also have no plausible allegations that ADA-qualified inmates have been discriminated against 

because of their disabilities. As noted above, review of the numerous vehicles that Defendants have 

identified and/or that are authorized by statute reveals none that singles out disabled persons for 

discrimination. To the contrary, it is likely that the programs in place will have a disparate impact in their 

favor, as disabled individuals are more likely to be able to demonstrate a need for the services that justify a 

medical furlough. The fact that disabled persons may be more susceptible to contract or suffer serious 

consequences from COVID-19 is not disputed, but that disparate impact is not a consequence of 

“Defendant’s rule” or any action by Defendants. As explained above, the “rule” is individual, discretionary 

decisions on eligibility for release.
42

so is consistent with the public interest. But every release order carries with it some risk to the 

rest of the community. Has the inmate been exposed to the virus while in custody? Does another 

vulnerable person—perhaps an 80-year old mother with emphysema—live at the residence where 

the inmate will be released? Does the inmate have a history of mental instability or domestic 

violence? Are there adequate safeguards—monitoring or supervision—for releasees who are both 

vulnerable and dangerous? How does the increased activity associated with release orders in the 

quantities sought by Plaintiffs comport with the mandate for social distancing? Finally, as alluded 

to above, the public interest also commands respect for federalism and comity, which means that 

courts must approach the entire enterprise of federal judicial intrusion into the core activities of 

the state cautiously and with humility. This is not to say that intrusion would not be justified if the 

state government sat silently during a pandemic; if that were the case, the Court would be prepared 

to request sua sponte the formation of a three-judge court to take up Plaintiffs’ complaint. But the 

absence of a plausible case on the merits and doubts about the balancing of the harms and public 

interest reinforce the decision to deny injunctive relief at this time.

Other compelling public interest considerations come into play too. Plaintiffs seek a 

process that could result in the release of at least 12,000 inmates. That is almost one-third of the 

prison population in Illinois. See Cmplt. at ¶¶ 1, 105. All of them are incarcerated because a jury 

convicted them of committing crimes, including some of the most serious crimes against our 

community. Many of them are violent offenders. Compelling a process to potentially release 

thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare. 

The risk of recidivism comes into play, as do concerns about victims’ rights. The question is not 

simply what is best for the inmates – the public has vital interests at stake, too. See Brief of Amicus 
43

Curiae City of Chicago in Mays v. Dart, Case No. 20-cv-2134, Docket Entry [45-1], at 2 

(submitted on April 9, 2020).

D. Petition for Writs of Habeas Corpus

As referenced above, Plaintiffs (or, in this context, Petitioners) also have brought a habeas 

petition under 28 U.S.C. § 2254 arguing that Respondent is “violating Petitioners’ Eighth 

Amendment rights by continuing to incarcerate them in conditions where it is virtually impossible 

to take steps to prevent transmission of an infectious disease that will prove deadly because of 

Petitioners’ vulnerable condition and/or age.” Jeffreys, [1, at ¶ 124]. 

Prior to filing a habeas petition in federal court, a petitioner seeking relief from state 

custody must exhaust available state remedies, which means that the petitioner has “fully and fairly 

presented his claims to the state appellate courts, thus giving the state courts a meaningful 

opportunity to consider the substance of the claims that he later presents in his federal challenge.” 

Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005); see also 28 U.S.C. § 2254(b), (c); O’Sullivan 

v. Boerckel, 526 U.S. 838, 845 (1999). This exhaustion requirement “serves an interest in federalstate comity by giving state courts the first opportunity to address and correct potential violations 

of a prisoner’s federal rights.” Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir .2004) (citing 

Picard v. Connor, 404 U.S. 270, 275 (1972)). It requires the petitioner to assert each of his or her 

federal claims through one complete round of state-court review, either on direct appeal of his or 

her conviction or in post-conviction proceedings, before proceeding to federal court. See 

O’Sullivan, 526 U.S. at 845; see also Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This 

includes presentation of the claims to appellate courts where review is discretionary and such 

review is part of the ordinary appellate procedure in the State. O’Sullivan, 526 U.S. at 847 
44

(requiring a petitioner to present his claims to the Illinois Supreme Court in a petition for leave to 

file an appeal even though that Court’s review was discretionary).

To fairly present a claim in state court, the petitioner must include both the operative facts 

and the controlling legal principles on which the claim is based, and must also alert the state court 

that the claim raised is based on federal law. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th 

Cir. 2001); Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004). If the federal court reviewing 

the habeas petition is not satisfied that the petitioner gave the state courts “a meaningful 

opportunity to pass upon the substance of the claims [ ] presented in federal court,” the Court 

cannot reach the merits. Chambers, 264 F.3d at 737; see also Sweeney, 361 F.3d at 332.

“Where state remedies remain available to a habeas petitioner who has not fairly presented 

his constitutional claim(s) to the state courts, the exhaustion doctrine precludes a federal court 

from granting him relief on that claim: although a federal court now has the option of denying the 

claim on its merits, 28 U.S.C. § 2254(d) (2), it must otherwise dismiss his habeas petition without 

prejudice so that the petitioner may return to state court in order to litigate the claim(s).” 

Perruquet, 390 F.3d at 514 (citing Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy,

455 U.S. 509, 522 (1982)); see also 28 U.S.C. § 2254(b)(1) (A); Coleman v. Thompson, 501 U.S. 

722, 731 (1991); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001). However, where a 

petitioner already has pursued state court remedies (but without presenting the federal claims in 

state court) and there is no longer any state corrective process available to him or her, “it is not the 

exhaustion doctrine that stands in the path of habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but 

rather the separate but related doctrine of procedural default.” Perruquet, 390 F.3d at 514.

It is undisputed that Petitioners have not complied with the exhaustion requirement. They 

did institute a direct action in the Illinois Supreme Court. Had that Court exercised its authority 
45

to take action on these matters, various abstention doctrines would have come into play and might 

have compelled (or at least counseled) this Court to stand down. The Court is not aware of any 

action that the Illinois Supreme Court has taken. Petitioners do not contend that the filing of their 

direct action to the state High Court satisfies the exhaustion doctrine. Rather, they submit that 

exhaustion should be excused because of the unavailability of the Circuit Court of Cook County, 

where Petitioners apparently would have preferred to file within the state court system. 

As an initial matter, that may not have been a valid choice in any event, for none of the 

Petitioners is housed in a facility within Cook County. In general, a habeas petitioner must bring 

suit against the warden of the facility in which he is detained. See, e.g., Rumsfeld v. Padilla, 542 

U.S. 426, 434–35 (2004). As the Supreme Court has explained, “[t]he federal habeas statute 

straightforwardly provides that the proper respondent to a habeas petition is ‘the person who has 

custody over [the petitioner]’” and “[t]he consistent use of the definite article in reference to the 

custodian indicates that there is generally only one proper respondent to a given 

prisoner’s habeas petition.” Id. (citing 28 U.S.C. § 2242); see also W.S.R. v. Sessions, 318 F.

Supp. 3d 1116, 1123 (N.D. Ill. 2018) (“the typical habeas petition requires that the warden of the 

custodial facility, rather than supervisory government officials, be named as the respondents”); 

Payne v. Illinois, 485 F. Supp. 2d 952, 952 (N.D. Ill. 2007) (“the proper habeas respondent is 

neither a disembodied governmental unit nor the “people” who are collectively the constituents of 

that unit, but rather the person who has custody over the habeas petitioner”). The presence of 

multiple petitioners may have afforded a choice in selecting a proper respondent, but it is doubtful 

that someone other than a warden of a facility housing a petitioner should have been named, for 

the general rule is that a petitioner may not sue the director of the jail system. See, e.g., Bridges 

v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005). Petitioners apparently sued Respondent 
46

Jeffreys, the IDOC Director, because they are proceeding on a representative theory, for which 

there is some support in Supreme Court and Seventh Circuit law. Bijeol v. Benson, 513 F.2d 965, 

968 (7th Cir. 1975) (although Rule 23 “does not apply to habeas corpus proceedings,” “a 

representative procedure analogous to the class action provided for in Rule 23 may be appropriate 

in a habeas corpus action under some circumstances) (citing Fed. R. Civ. P. 23); compare Jennings 

v. Rodriguez, 138 S. Ct. 830, 858 n.7 (U.S. 2018) (Thomas, J., concurring in part) (“This Court 

has never addressed whether habeas relief can be pursued in a class action.” (citing Schall v.

Martin, 467 U.S. 253, 261, n. 10 (1984) (reserving this question)).15

There is no need to resolve the question of the proper respondent, because Plaintiffs have 

not made a satisfactory showing that the state court system was not every bit as available as the 

federal courts, if not more so. Assuming that filing in Cook County would have been proper, 

“Cook County’s courts are still available for emergency matters,” as Judge Kennelly found earlier 

this week. Mays v. Dart, 2020 WL 1812381, at *5 (N.D. Ill. Apr. 9, 2020). Petitioners have made 

no effort to establish that the trial courts in the numerous other counties where they are housed are 

unavailable and were so last week when this action was filed. Stateville Correctional Center,

where the COVID-19 crisis was most acute within the IDOC system, is located less than five miles 

from the Will County Courthouse in Joliet, where the Circuit Court for the Twelfth Judicial Circuit 

sits. Under that court’s operative Administrative Order No. 2020-08, effective from March 18,

2020 through April 30, 2020, “[w]ith the exception of Branch Courts, all court facilities will be 

open normal business hours.” Administrative Order No. 2020-08, available at

15 Although the Court denies habeas relief based on Petitioners’ failure to exhaust their available state 

remedies, it adds that for all of the reasons stated above (see 30-33, supra), this habeas action would be no 

more suitable for representative or class treatment than the Section 1983 lawsuit is, as release

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

effectuating them.
47

https://www.circuitclerkofwillcounty.com/Portals/0/Covid%20AO%2020-08.pdf (last checked 

Apr. 10, 2020). Within the Civil Division, where this matter likely would have been assigned, the 

General Order provides that “[m]atters determined by the Court to be of an emergency nature will 

be heard in-person, by telephone conference, or by videoconference if possible.” Id. ¶ 6A. 

To be sure, exhaustion requirements can (and should) be waived when relief is truly 

unavailable. But waiving them here—when state courts clearly were available at least in the two 

counties identified above and for all Petitioners have shown, every other county and circuit as 

well—would turn the habeas system upside down. Accordingly, the Court denies Petitioners’ 

request for expedited release pursuant to the issuance of writs of habeas corpus.16

* * * * *

In closing, the Court can do no better than to quote the three-judge panel from California 

before whom a group of plaintiffs in a similarly hard-hit state presented a claim seeking release 

(or relocation) due to the inability to observe social distancing during the COVID-19 pandemic: 

“We emphasize that Defendants have broad authority to voluntarily take steps that may prevent 

the life-threatening spread of COVID-19 within their prisons, and we recognize the deference that 

is due to prison authorities to determine which additional measures must be taken to avoid 

catastrophic results. * * * Defendants have represented to us that they are continuously evaluating 

what more they can do to protect the inmates within their prisons, and we urge them to leave no 

stone unturned. It is likely that only through significant effort will California’s prisons be able to 

16 Because Petitioners asked for expedition, which was justified in the circumstances, the Court is reluctant 

to dismiss the Petition altogether without allowing Petitioners time for reflection on the ruling and the basis

for it. However, following Judge Kennelly’s approach in Mays, 2020 WL 1812381, at *6 n.5, the Court is 

willing to consider entering a final order of dismissal (or any other viable approach of allowing Petitioners 

to seek further review) upon the filing of a motion requesting such relief. Any such motion should be 

presented to the undersigned judge in his capacity as emergency judge, although the motion may be referred 

to the assigned judge after filing.
48

minimize the spread of COVID-19.” Coleman & Plata, 2020 WL 1675775, at *8. So, too, here 

in Illinois.

IV. Conclusion 

For the reasons set forth above, Plaintiffs’ motion for temporary restraining order and 

preliminary injunction in Money v. Pritzker, Case No. 20-cv-2093 [9] is denied. Plaintiffs’ 

motions for leave to file oversized brief [5] and for expedited treatment [12] in that same case are 

granted. Defendants’ motion for leave to file sur-reply in that case [32] is granted. Petitioners’ 

motion for expedited treatment in Money v. Jeffreys, Case No. 20-cv-2094 [3] is granted, but the 

Court denies Petitioners’ request for expedited release. The petition [1] remains open on the 

docket, subject to further action by the parties and the judges, both assigned and emergency (see 

above). No further status hearings will be set at this time by the emergency judge.

Dated: April 10, 2020 ____________________________

Robert M. Dow, Jr.

United States District Judge