Rasho v. Walker

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

ASHOOR RASHO, et al., )

)

Plaintiff, )

)

v. ) No. 07-1298

)

ROGER E. WALKER, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction ECF No.

3417. For the reasons stated below, the Motion for Preliminary Injunction is DENIED.

PROCEDURAL BACKROUND

This case is a class action brought under 42 U.S.C § 1983 alleging violations of the Eighth

Amendment of the United States Constitution, the Americans with Disabilities Act, 42 U.S.C. §

12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs challenge the adequacy of

the delivery of mental health services to mentally ill prisoners in the physical custody and control

of the Illinois Department of Corrections (“IDOC” or “Department”). In the motion before the

Court, Plaintiffs argue that the lack of out of cell time at Dixon and Pontiac Correctional Centers

amounts to cruel and unusual punishment in violation of the Eighth Amendment and that the lack

of out of cell time at Pontiac also constitutes a violation of the Americans with Disabilities Act

(“ADA”).

This case has been ongoing since 2007. The facts relevant to the present motion began in

August 2015 when this Court certified a class for purposes of litigation, pursuant to Rule 23(b)(2)

of the Federal Rules of Civil Procedure, and defined the class as persons in custody of IDOC who

“are identified or should have been identified by the IDOC’s mental health professionals as in need

of mental health treatment as defined in the current edition of the Diagnostic and Statistical Manual

of Mental Disorders of the American Psychiatric Association.” ECF No. 252 at 7. The order

clarified that a “diagnosis of alcoholism or drug addiction, developmental disorder, or any form of

sexual disorder shall not, by itself, render an individual mentally ill for the purpose of this class

definition.” Id.

On December 17, 2015, the parties announced they had entered into a comprehensive

settlement agreement resolving the action set forth in Plaintiffs’ Third Amended Complaint, the

operative complaint in this matter. Minute Entry dated 12/17/2015; ECF No. 260. The Court found

the agreement to be fair and reasonable over objections from class members. The current operative

agreement is the Second Amended Settlement Agreement found at ECF No. 3051.1

As part of the Settlement Agreement, the Parties agreed to the appointment of a monitor.

ECF No. 3051 at 9. Dr. Pablo Stewart was selected as the Court appointed monitor. Id. at 27. Dr.

Stewart submits regular reports evaluating whether Defendants are meeting the standards set forth

under the Settlement Agreement. See ECF Nos. 3515; 3451; 3343.

In October 2017, Plaintiff filed a Motion for Enforcement of the Settlement Agreement.

ECF No. 1559. After additional motions practice and evidentiary hearings, the Court ultimately

issued a preliminary injunction to enforce the settlement agreement and later converted the

preliminary injunction to a permanent injunction. Defendants’ lack of adequate mental health staff

was an important consideration in the Court’s decision. The Court entered an injunction outlining

certain staffing standards and other measurable standards Defendants needed to meet. See ECF

1 The Seventh Circuit recently stated this agreement is more accurately described as a Consent Decree and

this Court is compelled to agree. Rasho v. Jeffreys, 22 F.4th 703, 707 n. 2 (7th Cir. 2022). The Court will describe this

as the “Settlement Agreement” for the purposes of this motion, which is the manner the parties describe the agreement

in their briefs.

No. 2633. On January 12, 2022, the Seventh Circuit vacated the Court’s decision, finding that

Defendants had made reasonable efforts to mitigate the harm. The Seventh Circuit recently denied

Plaintiffs’ motion to rehear the case en banc, and issued a mandate, officially returning the case to

this Court. ECF No. 3560.

Plaintiffs first filed a motion for relief regarding concerns over class members’ out of cell

time in April 2021 due to concerns that class members had been languishing in their cells for up

to 24-hours a day despite few positive COVID cases in IDOC at that time. ECF No. 3288. The

parties exchanged discovery and came to an agreement without the Court’s intervention. ECF No.

3517 at 5. The parties’ agreement required Defendants to continue to report on the structured and

unstructured out of cell time at Dixon and Pontiac and the reasons for noncompliance with the

Settlement Agreement. Based on these reports, on October 19, 2021, Plaintiffs filed a Motion for

Preliminary Injunction due to Defendant’s continued failure to provide adequate out of cell time

to class members. ECF No. 3417. Plaintiff argues, among other things, that class members at

Pontiac have essentially been in solitary confinement for months and that class members at Dixon

are also not receiving appropriate out of cell time to meet their mental health needs. On November

16, 2021, Defendants filed their Opposition to the Motion for Preliminary Injunction. ECF No.

3438. Defendants argue, among other things, that staffing issues outside of their control and

COVID protocols have prevented them from providing the required out of cell time.

Between February 1, 2022, and February 4, 2022, the parties presented testimony and

evidence regarding the Motion for Preliminary Injunction and the Court heard Closing Arguments

on February 23, 2022. On March 3, 2022, after the Seventh Circuit ordered Defendants to respond

to Plaintiffs request that the Seventh Circuit rehear the appeal related to a previously entered

injunction en banc, Plaintiffs requested the Court reserve ruling until after the Seventh Circuit

decided whether to rehear the case. The Seventh Circuit denied that request on April 25, 2022.

This Order follows.

FACTUAL BACKROUND

Plaintiffs bring this motion for a preliminary injunction against Pontiac and Dixon

Correctional Center. Class members are seriously mentally ill inmates housed in IDOC’s

Residential Treatment Units (“RTUs”). The Settlement Agreement defines a Residential

Treatment Unit as a “housing unit within the prison system for offenders with mental illnesses who

do not need inpatient treatment . . . but who do require the therapeutic milieu and full range of

service and variable security available in the RTU.” ECF No. 3051 at 10. The IDOC

Administrative Directive defines the RTU level of care as a “level of care for offenders who, based

on clear clinical evidence have a serious mental illness associated with significant functional

impairments, rendering the offender unable to successfully reside in a general population housing

unit.” ECF No. 3417 at 8.

For all RTUs, the Settlement Agreement requires ten hours of structured therapeutic

activities and ten hours unstructured out of cell time activities per week. ECF No. 3051 at 10.

Plaintiffs describe the class members at Pontiac as essentially being in solitary confinement for

months, with no immediate relief in sight. ECF No. 3417 at 23 The majority of inmates at Dixon

receive at least 10 hours of unstructured out of cell time, but Plaintiffs complain that Defendants

do not provide sufficient structured out of cell time and that the structured time that is provided is

not sufficiently therapeutic to meet the mental health needs of the class members. Plaintiffs also

allege that many class members in X-house2 in Dixon do not receive sufficient out of cell time.

2 Dixon’s Residential Treatment Unit is divided into two separate programs based on security classifications:

the Special Treatment Center (“STC”) for general population and X-house for maximum security general population,

restrictive housing and crisis watch. ECF No. 3417 at 9.

a. Class Members have serious mental illness requiring treatment and accommodation.

For incarcerated individuals who have been designated as mentally ill, IDOC provides

three levels of care: outpatient, residential, and inpatient. ECF No. 3051 at 9–10; 3509 at 21–22.

IDOC provides a residential level of care at RTUs located at Dixon, Pontiac, Logan, and the Joliet

Treatment Center. ECF No. 3051 at 15–17; ECF No. 3509 at 21–22. To be placed at the RTU level

of care, individuals must have been found to have “significant functional impairments” that make

them unable to reside in the general prison population. PX-4, Administrative Directive 04.04.100.

This means that secondary to their psychiatric conditions, they have impairment in functioning,

such as with performing daily activities of living, caring for themselves, or living with other

people. ECF Nos. 3509 at 24–25; 3510 at 283–84.

b. IDOC’s compliance with the Settlement Agreement has varied over time.

Under the Settlement Agreement, IDOC agreed to provide RTU patients with at least 10

weekly hours of structured therapeutic out of cell time and 10 hours a week of unstructured

recreational time. ECF No. 3051 at 16. Plaintiffs acknowledge that prior to the pandemic that

began in March 2020, the Court Monitor’s Fourth Annual Report found that the Department was

meeting the minimal out of cell time for RTU inmates at Joliet, Logan, Pontiac, and Dixon’s

Special Treatment Center. ECF No. 3038 at 36–37. At Dixon, inmates had the option to be out of

their cells for 48.5 hours of unstructured time and had 12 to 13 hours of structured time available.

The monitor found that in Dixon’s X-house, they only had 5 hours of structured out of cell time.

Id.

In March 2020, IDOC placed all facilities on “administrative quarantine” to try to mitigate

the spread of COVID-19. ECF No. 3511 at 38–39; PX-5. IDOC’s mitigation efforts involved

limiting movement of incarcerated individuals within and between facilities, stopping visitation,

stopping intakes of new prisoners, requiring at least six feet of distancing for group activities and

other measures. ECF No. 3511 at 94. IDOC determined that limitations on movement and group

activities were necessary because many facilities did not have space to allow social distancing to

try to stop the spread of COVID-19. ECF No. 3511 at 645. At the time of the February 2022

hearing, both Dixon and Pontiac were on medical quarantine due to COVID outbreaks. See ECF

Nos. 3518 at 11; 3510 at 45.

In November 2020, the Monitor found Defendants were not compliant with the out of cell

time requirements and further observed that the pandemic had resulted in drastically reduced

mental health services. IDOC admitted in its quarterly reports that in the implementation of

COVID-19 restrictions, the RTUs had stopped providing the minimum out of cell hours and

asserted force majeure, under the Settlement Agreement. ECF No. 3177 at 12; ECF No. 3238 at

17; ECF No. 3258 at 14. Plaintiffs observe that Defendants asserted force majeure for more than

a year after the pandemic began and stopped providing the minimum out of cell time. ECF No.

3417 at 10 (citing ECF Nos. 3177 at 12; 3238 at 17; 3258 at 14). On April 26, 2021, Plaintiffs filed

their first motion for relief related to administrative lockdowns and lack of out of cell time for all

RTU units, including those at Joliet and Logan. ECF No. 3288. Plaintiffs claim that with an

evidentiary hearing date approaching, Defendants made changes to increase out of cell time in the

RTUs. ECF No. 3417 at 11. The parties ultimately came to an agreement that involved Defendants

providing Plaintiffs a status report on IDOC’s compliance with offering out of cell time to RTU

patients. ECF No. 3417-2 at 6.

The parties agree about many of the core facts regarding out of cell time. At Pontiac, charts

Defendants created indicate that class members had not gotten more than a handful of hours of out

of cell time since at least August 2021. See PX-2. The parties appear to agree that class members

housed at Dixon were largely receiving appropriate unstructured out of cell time but were only

receiving a few hours of structured out of cell time. The parties agree that a violation of the

Settlement Agreement alone is not sufficient for an injunction. Instead, according to the Settlement

Agreement the Court must find that there has been a violation of a federal right and must tailor

any relief narrowly. See ECF Nos. 3517 at 3; 3518 3–4.

LEGAL STANDARD

In order to satisfy the requirements for a preliminary injunction, Plaintiffs must show: (1)

without a preliminary injunction, they will suffer irreparable harm before the final resolution of

their claims; (2) traditional legal remedies would be inadequate; and (3) that they have some

likelihood of succeeding on the merits of their claim. Girl Scouts of Manitou Council, Inc. v. Girl

Scouts of U.S., 549 F.3d 1079, 1086 (7th Cir. 2008). If Plaintiffs establish the required showing,

the Court then must balance the potential harms to the parties and, if appropriate, the public

interest. Id. This standard applies to each of the claims that Plaintiffs brought under the Eighth

Amendment and the ADA. The Court will address each claim in turn.

DISCUSSION

A. Deliberate Indifference

To establish an Eighth Amendment violation, Plaintiffs must prove that Defendants have

been deliberately indifferent to their serious medical needs, and in this case, their mental health

needs. “[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary

and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S.

97, 104 (1976) (citations omitted); see also Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005).

An inadequate medical care claim requires a plaintiff to fulfill two elements: (1) the

plaintiff “suffered an objectively serious harm that presented a substantial risk to his safety,” and

(2) “the defendants were deliberately indifferent to that risk.” Minix v. Canarecci, 597 F.3d 824,

831 (7th Cir. 2010).

For the objective prong, the medical need must be one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.

1997). A medical condition “need not be life-threatening to be serious; rather, it could be a

condition that would result in further significant injury or unnecessary and wanton infliction of

pain if not treated.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The Seventh Circuit has

agreed with other courts in concluding that the “[t]reatment of the mental disorders of mentally

disturbed inmates is a ‘serious medical need.’” Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.

1983) (citing Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980); Inmates v. Pierce, 612 F.2d

754, 763 (3d Cir. 1979); Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977)).

The subjective component requires a plaintiff to “provide evidence that an official actually

knew of and disregarded a substantial risk of harm.” Petties v. Carter, 836 F.3d 722, 728 (7th Cir.

2016) (emphasis in original); Farmer v. Brennan, 511 U.S. 825, 842 (1994). In order to establish

deliberate indifference, “a plaintiff does not need to show that the official intended harm or

believed that harm would occur.” Petties, 836 F.3d at 728 (citing Farmer, 511 U.S. at 842).

Medical malpractice, negligence, and even gross negligence do not necessarily equate to deliberate

indifference. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006); see also Estelle, 429 U.S.

at 106; McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013). “Evidence that the defendant

responded reasonably to the risk, even if he was ultimately unsuccessful in preventing the harm,

negates an assertion of deliberate indifference.” Rasho v. Jeffreys, 22 F.4th 703, 710 (7th Cir.

2022) (citing Farmer, 511 U.S. at 844; Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002)). The

bar is high and requires a showing of “something approaching a total unconcern for the prisoner’s

welfare in the face of serious risks.” Id. (citing Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir.

2012)).

The Seventh Circuit has recognized claims of systemic deficiencies in a prison’s health

care facility as a second category of deliberate indifference claims. Cleveland-Perdue v. Brutsche,

881 F.2d 427, 430–31 (7th Cir. 1989). In cases of alleged systemic deficiencies, deliberate

indifference can be demonstrated by “proving there are such systemic and gross deficiencies in

staffing, facilities, equipment, or procedures that the inmate population is effectively denied access

to adequate medical care.” Wellman, 715 F.2d. at 272 (citing Ramos, 639 F.2d at 575); Phillips v.

Sheriff of Cook Cty., 828 F.3d 541, 554 (7th Cir. 2016)). The Seventh Circuit has concluded “that

a clear consensus had been reached indicating that a prison official’s failure to remedy systemic

deficiencies in medical services akin to those alleged in the present case constituted deliberate

indifference to an inmate’s medical needs.” Cleveland-Perdue, 881 F.2d at 431; see Newman v.

Alabama, 503 F.2d 1320 (5th Cir. 1974) (affirming a district court decision finding that systemic

deficiencies in Alabama prisons including inadequate staffing, treatment by unqualified personnel,

incomplete medical records, and lack of written procedures establishing the duties and

responsibilities of the medical personnel amounted to deliberate indifference.).

As explained below, for those class members in Pontiac and Dixon’s X-house who are

essentially locked in solitary confinement, Plaintiff has demonstrated that those class members are

at risk of substantial harm and that Defendants are aware of that risk of harm. For class members

housed at Dixon, it is not clear that the lack of structured out of cell time subjects them to a

substantial risk of harm. Regardless, Plaintiffs have not shown that Defendants’ response to that

risk of harm was unreasonable, particularly in light of the recent Seventh Circuit decision. See

Rasho, 22 F.4th at 706. Instead, Defendants outlined steps that they have taken to mitigate the

harm and indicated at the hearing that once COVID restrictions lift, they have a concrete plan for

swiftly addressing their failures to provide out of cell time.

i. Pontiac’s lack of out of cell time presents a serious risk of substantial harm to

inmate safety.

Pontiac is primarily a maximum-security prison that houses about 807 maximum security

individuals, and about 330 medium security individuals are housed in a unit just outside Pontiac’s

walls. ECF No. 3510 at 225. Due to its status as a maximum-security facility, two guards must

escort each individual to and from structured and unstructured out of cell time. ECF No. 3510 at

198–199. Defendants point to the guard shortage and difficulty transporting inmates to and from

their cells as the primary obstacle to providing sufficient out of cell time at Pontiac. At the time of

the hearing, Pontiac was authorized for 790 security officers but only 451 of those positions were

filled. ECF No. 3511 at 109. While John Burle, the Warden of Pontiac, testified that the mental

health staff would be able to provide sufficient structured programming, he claimed that out of cell

activities have been regularly cancelled due to security staffing shortages. ECF No. 3510 at 256;

263–270.

In Pontiac, where class members have been confined to their cell 23-24 hours a day for

months, the Court agrees that Defendants have failed to provide out of cell time necessary to help

manage their serious mental health condition and that the failure to provide treatment in the above

areas puts Plaintiffs at a significant risk for further injury and severe unnecessary pain and

suffering.

As Plaintiffs describe, class members were placed in the Pontiac RTU for treatment, but

instead are locked in their cells around the clock. ECF No. 3517 at 40–41. Inmates describe

becoming more anxious the more that they spend time in their cell with nothing to do. PX-12.

Class Member McTizic describes that he feels that he is getting worse that the “wall are closing in

on him” and that he sometimes hits the wall or hurts himself. Id. Inmates describe excruciating

experiences feeling trapped in their cells, self-harming just to have the opportunity to get out of

their cell, overdosing on pills, and setting themselves on fire due to the anxiety, frustrations, and

increased impulsivity from the isolation of being locked in their cell all day for weeks on end.

Others described feeling trapped, hopeless, and “doomed.” Id. The affidavits from class members

describe the intense emotional pain this isolation inflicts on these severely mentally ill inmates.

In addition to the compelling accounts from class members, the Seventh Circuit has

outlined the mental harm that solitary confinement can inflict on inmates. The Seventh Circuit

does not believe it is a mystery that solitary confinement can psychologically damage inmates

stating, “the record shows, what anyway seems pretty obvious, that isolating a human being from

other human beings year after year or even month after month can cause substantial psychological

damage, even if the isolation is not total.” Davenport v. DeRobertis, 844 F.2d 1310, 1313 (7th Cir.

1988). The Seventh Circuit observed in Davenport, “there is plenty of medical and psychological

literature concerning the ill effects of solitary confinement.” Id. (citing Grassian,

Psychopathological Effects of Solitary Confinement, 140 American Journal of Psychiatry 1450

(1983)). The Seventh Circuit again reiterated that there is “extensive literature” on the substantial

risk of harm of isolation on severely mentally ill inmates. Scarver v. Litscher, 434 F.3d 972, 975

(7th Cir. 2006). In Sanders, the Seventh Circuit found that a seriously mentally ill inmate housed

at Pontiac plausibly pleaded that he was under imminent danger of serious physical injury due to

his history of mental illness and self-harming behaviors being exacerbated by solitary confinement.

Sanders v. Melvin, 873 F.3d 957 (7th Cir. 2017). The Seventh Circuit has also stated that “a judge

who, on an adequate record, requires [at least five hours] of exercise opportunity has not exceeded

the outer bounds of permissible interpretation of the Eighth Amendment.” Davenport v.

DeRobertis, 844 F. 2d 1310, 1315–16 (7th Cir. 1988) (citing French v. Owens, 777 F.2d 1250,

1255–56 (7th Cir.1985)); see also Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir.1980) (found

violations when detainees only released from their cells three times per week for fifteen to thirty

minutes); Spain v. Procunier, 600 F.2d 189, 199–200 (9th Cir. 1979) (found Eight Amendment

violation to completely deny some prisoners exercise); Sweet v. South Carolina Dept. of

Corrections, 529 F.2d 854, 865–66 (4th Cir.1975).

Given this evidence, and considering the standard outlined in Wellman, this Court finds

the Defendants’ inadequate staffing levels creates a systemic problem at Pontiac that has

effectively denied the mentally ill inmates access to adequate and constitutionally required care.

The record here and extensive comments from the Seventh Circuit confirm that persistent isolation

can be excruciating, particularly for those with severe mental illness.

ii. Plaintiffs failed to prove that the out of cell time at Dixon presents a serious

risk of substantial harm.

At Dixon, Defendants are violating the terms of the Settlement Agreement regarding

structured out of cell time. However, Defendants are providing additional unstructured out of cell

time, with class members in the Special Treatment Center receiving up to 26 hours of unstructured

out of cell time per week. Dixon also appears to have a plan in place to increase structured out of

cell time.

At the hearing, there was a great deal of debate regarding the appropriateness of the

structured out of cell time that Dixon offered. At issue were the community meetings and the use

of what Defendants describe as “therapeutic recreational activities.” ECF No. 3518 at 15. Plaintiffs

complained that the community meetings and recreational activities were not sufficiently

therapeutic to qualify as structured out of cell time. Dr. Stewart criticized one community meeting

that he described as not sufficiently structured or confidential. ECF No. 3509 at 48-52. He

complained that security officers were meandering through the meeting in such a way that would

not provide confidentiality, which he described as a necessity for therapeutic treatment. He also

complained that individuals not participating were wandering in an out of the meeting and that it

was generally chaotic. Id. at 48-52. Ultimately, the Court is not answering the question of whether

Defendants strictly complied with the Settlement Agreement or if Defendants are utilizing the most

effective form of mental health treatment. The question is whether Defendants are deliberately

indifferent to class members’ serious mental health needs. Regardless of the manner in which the

recreational activities and community meetings are appropriately classified, it appears that

Defendants are making a reasonable effort with the resources available to them such that they are

not subjecting class members to cruel and unusual punishment. Moreover, as explained below,

Defendants are taking additional steps to increase the available space to host additional structured

out of cell time.

As to residents in Dixon X-house, it appears that individuals housed there for more than

60 days receive out of cell time even if they do not receive sufficient structured out of cell time.

Those housed less than 60 days appear to spend nearly all of their day in a cell. In Davenport,

however, the Court limited the out of cell time requirements to individuals held in segregation for

90 or more consecutive days. See Davenport, 844 F.2d at 1311. The Court also allowed the facility

to deny an inmate out of cell time for a reasonable period of time if the inmate violated prison rules

during the exercise or shower period. Id. The short length of stay suggests that the isolation does

not rise to the level of a constitutional violation since the inmates there will likely soon rejoin the

STC population where they would enjoy additional out of cell time or else be eligible for additional

out of cell time while in the X-house.

iii. Defendants have taken sufficient steps to attempt to alleviate the harm

caused by isolation.

Defendants claim that they have not been deliberately indifferent because the conditions of

the COVID-19 pandemic have frustrated their ability to hire additional security staff and the

restrictions on group size have thwarted the facilities’ ability to hold groups. Defendants also claim

they took steps to avoid decompensation while inmates were confined to their cells and have a

plan to offer appropriate out of cell time soon.

a. Hiring Efforts

At both facilities, staffing shortages were a significant barrier to providing out of cell time.

This was particularly true at Pontiac where each inmate needs to be escorted by two guards to

travel to and from out of cell activities. Defendants explain that Pontiac has filled only 451 of the

790 positions that it is allotted. ECF 3511 at 109.

Multiple Defense witnesses testified about the difficulty hiring staff during the pandemic.

John Eilers, the former chief of Operations for IDOC and incident commander for COVID

response, testified that the Department had hired a class of correctional officers in March 2020 and

the officers were sent home or back to prior facilities to job shadow. ECF No. 3511 at 98. He

explained that they brought the class back to the academy in small, staggered classes which

ultimately put them behind in hiring and training. Id. He estimated that due to COVID outbreaks

and related restrictions, IDOC lost out on hundreds of new hires by the end of 2021. Id.

Jason Brewer, the acting manager of Employee Services, testified about the recruiting

obstacles IDOC faced since the pandemic began in March 2020. Id. at 150–160. He explained that

IDOC holds 400 – 500 recruitment events annually all over the state. Id. at 152. He says that a lot

of them are virtual, post-COVID. Id. Then, those that had expressed interest either at a recruiting

event or online, are invited to a screening event where they take a basic education test and complete

certain physical tests. Id. at 153. Before March 2020, they would often have 80-100 people come

to each screening event. Id. at 167. He testified that recently, they consider 30 people a good

turnout for a screening event. Id. at 168. He says that part of the response to the hiring difficulties

was to eliminate the education test for applicants with at least 15 college credit hours. Id.

Previously, if applicants passed the education test, but failed other portions, then applicants had to

retake the education test. Id. Now, they have a certificate that indicates they passed education test

so they do not have to retest that portion if they attend a different screening day. Id.

Brewer explained that it appeared that part of the problem is that in certain parts of the state

working in law enforcement has been a deterrent for some applicants due to the negative press. Id.

at 167–68. He said that they have also gotten feedback that the vaccination mandates serve as a

deterrent for some applicants. Id.

Brewer also testified that IDOC recently raised salaries $3,000-$4,000 a year and that their

compensation is in the top five highest correctional officers in the United States. Id. at 162. He

also said that including medical, retirement, pension packages and deferred compensation benefits,

the total compensation package was competitive for the minimum requirements of being 18 years

old with a high school degree, and a valid driver’s license. Id. at 162-63. He also outlined increased

outreach with the Urban League in Chicago, recruitment events at churches, and trying to reach

out to more diversified candidates. Id. at 172.

b. Pontiac’s Specific Response to Lack of Adequate Out of Cell Time

Pontiac officials blame their inability to provide adequate out of cell time on their lack of

security officials, stating that they have sufficient mental health staff to provide programming.

ECF No. 3511 at 85; ECF No. 3510 at 263–68. In response to the lack of security staff, in May

2021, IDOC initiated a plan to close certain maximum-security wings and transfer those

individuals to Lawrence Correctional Center so they could reallocate staff. DX-41; ECF No. 3511

at 105–106. Defendants’ witnesses explained that they initially expected to be able to transfer

inmates in August 2021, but the process of converting Lawrence to a maximum-security facility

experienced significant and expensive delays. ECF No. 3511 at 104–105. There was a difficulty

with the locking mechanism that will cost $7.8 million to fix. ECF No. 3511 at 109; DX-40.

However, Defendants provided evidence that the process to upgrade Lawrence is in motion with

some money already spent on the project. Defendants explain that once they move the other

maximum-security inmates without mental health issues, the remaining staff will be available to

assist with the remaining mental health class members.

Defendants also claim that given the time it will take to retrofit Lawrence, there is a plan

to move medium security inmates to other facilities once COVID related restrictions allow for the

transfers to take place. Defendants also claimed that it would not be feasible to move the mental

health inmates as there was not space at other RTUs for inmates that required a maximum-security

facility.

c. Dixon’s Specific Response to Lack of Adequate Out of Cell Time

Defendants produced witnesses and other evidence to support its assertion that Dixon has

provided significantly more than 10 hours unstructured time during the pandemic and that at the

time of the hearing, patients in the STC have 26 unstructured hours of available out of cell time

each week and that certain X-house residents have 18-26 unstructured hours available between

dayroom and yard. Plaintiffs counter that class members in X-house for less than 60 days get little

to no out of cell time.

Defendants appear to concede that Dixon has not providing sufficient structured out of cell

time for class members since the pandemic. ECF No. 3518 at 15. However, they point to evidence

that they have progressively added structured out of cell time. ECF No. 3510, at 425–26. They say

that in April 2020, Dixon resumed treatment team meetings. ECF No. 3297-11 at 1. Then, in

September 2020, Dixon resumed offering a limited number of groups to STC patients. Id.

Defendants point to evidence that in addition to providing out of cell time, Dixon used in-cell

activities when out of cell time is limited. ECF No. 3510 at 156, DX-44. The activities include

handouts that Defendants’ witnesses described as appropriate for those who might struggle with

complex topics or for those with reading difficulties. ECF No. 3510 at 156–62. Defendants did not

provide a clear idea of how often these worksheets were distributed or what follow up happened

after the inmates completed the worksheets. However, there was some testimony and evidence that

there was an attempt to provide in-cell activities.

Finally, Defendants point to the changes that they plan to make to Dixon’s facilities to

accommodate more out of cell time. In June 2021, Dixon closed five buildings after it transferred

medium security inmates to other facilities. ECF No. 3509 at 223–225. The facility was then able

to reallocate security staff to other areas. Dixon also modified the gym by installing fencing which

allowed Dixon to use that space for additional out of cell activities. ECF No. 3511, at 100–101.

Dixon also installed new fencing in the RTU dayrooms to provide increased structured and

unstructured out of cell time and the project will be complete once the phones and kiosks are

relocated within the fencing. ECF No. 3509 at 228–29. Dixon has also started construction on an

outdoor pavilion to accommodate more structured out of cell activities. Id. DX 34(a). The

Department also issued a memorandum with a proposal to provide 10 hours of structured out of

cell time to those in Dixon’s RTU when COVID-19 restrictions lift. ECF No. 3509 at 210–12; PX-

14.

d. Defendants’ efforts to mitigate the effects of isolation due to COVID-19

undermine a finding of deliberative indifference.

While Plaintiffs have argued that the Department could have taken different action, such

as offering higher salaries or transferring Pontiac RTU patients to other facilities, deliberate

indifference does not depend on whether official could have taken better actions. See Rasho, 22

F.4th at 710. Given the restraints that COVID has placed on facilities in terms of group size, as

well as the obstacles that it has created in terms of hiring, Plaintiff is unable to demonstrate a

likelihood of success on the merits that would entitle them to a preliminary injunction because

Defendants’ actions do not show “something approaching a total unconcern for the prisoner’s

welfare in face of serious risks.” Rasho, 22 F.4th at 710 (quoting Rosario v. Brown. 670 F.3d 816,

821 (7th Cir. 2012)). In light of the unique strain that COVID has placed on the facilities, the Court

is unable to find deliberate indifference based on the record currently before it.

B. Plaintiffs did not prove a violation of the Americans with Disabilities Act.

Plaintiffs also argue that class members at Pontiac have established a violation of the ADA.

Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §

12132.10. Title 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 succeed on a claim under the ADA, a plaintiff must establish “that he is a qualified

individual with a disability, that he was denied the benefits of the services, programs, or activities

of a public entity or otherwise subjected to discrimination by such an entity, and that the denial or

discrimination was by reason of his disability.” See Wagoner v. Lemmon, 778 F.3d 586, 592 (7th

Cir. 2015) (internal citations and quotations omitted). 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 Ind. High Sch. Athletic Ass’n Inc., 181

F.3d 840, 847 (7th Cir. 1999). Plaintiffs claim they have proven their claims in two ways: (1) the

lack of reasonable accommodation and (2) disparate impact.

Plaintiffs state that the regulations implementing Title II of the ADA require that a public

entity:

Make reasonable modifications in policies, practices, or procedures

when the modifications are necessary to avoid discrimination on the

basis of disability, unless the public entity can demonstrate that

making the modifications would fundamentally alter the nature of

the service, program, or activity.

28 C.F.R. § 35.130(b)(7). Plaintiffs argue they have requested the accommodations that class

members in segregation be given out of cell time and the minimal standards of treatment, and that

without these accommodations, class members have, and will continue to suffer. ECF No. 2407 at

21.

Second, Plaintiffs argue they have established a disparate impact claim under the ADA. In

order to establish a disparate impact claim, a plaintiff must prove the defendant adopted a policies

or practices that are “‘facially neutral in their treatment of different groups but that in fact fall more

harshly on one group than another and cannot be justified by [a nondiscriminatory] necessity.’”

Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (quoting Teamsters v. United States, 431 U.S.

324, 335, n. 15 (1977).). Plaintiffs assert that the evidence presented at the hearing demonstrates

the facially neutral treatment of prisoners in segregation causes greater harm to people with mental

illness.

i. Plaintiff failed to prove causation.

The Seventh Circuit has explained that regardless of a plaintiff’s theory of liability the

ADA requires proof of causation, meaning that a plaintiff must be able to prove that “‘but for’ his

disability, he would have been able to access the services or benefits desired.” H.P. v. Naperville

Cmty. Unit Sch. Dist. #203, 910 F.3d 957, 961 (7th Cir. 2018) (citing A.H. ex rel. Holzmueller v.

Ill. High Sch. Ass’n, 881 F.3d 587, 592 (7th Cir. 2018)); see also Roberts v. City of Chicago, 817

F.3d 561, 565 (7th Cir. 2016) (“to prove causation under the ADA, plaintiffs must show that they

were not hired because of their disabilities, not because of a delay in medical clearance, even if

that delay was caused by their disabilities.”). In Naperville Community, the Seventh Circuit

explained that the plaintiff, a high school student claiming she was disabled, was disallowed from

attending her preferred school because of the residency policy, not because of plaintiff’s alleged

disability. Id. The Seventh Circuit emphasized that the residency policy was unrelated to the

plaintiff’s disability. Id. Accordingly, the Court rejected the plaintiff’s claims under the ADA for

want of causation. Id.

Here, similarly, Plaintiffs have not demonstrated that the lack of out of cell time is due to

their disability. Instead, Defendants have demonstrated that Pontiac’s lack of out of cell time is

due to security issues as the maximum-security facilities and the inability to hire adequate numbers

of guards despite their efforts. It is also not clear from the record that other maximum-security

inmates at Pontiac have been able to receive different access to services that mentally ill patients

are being denied. Accordingly, while Defendants are failing to meet the terms of the Settlement

Agreement, it is not clear whether class members are being denied services that were offered to

non-class members during the same time period.

ii. Reasonable Accommodation

The ADA laws “require that a government entity do more than provide a program on equal

terms to those with and without disabilities; they require ‘affirmative accommodations to ensure

that facially neutral rules do not in practice discriminate against individuals with disabilities.’”

Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 846–47 (7th Cir. 1999). The

failure to provide reasonable accommodations is an independent basis for liability. Wisconsin

Cmty. Servs., Inc., v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006).

Defendants argue that the only suggested accommodations were transferring the Pontiac

patients to another facility or doubling the salary of the guards. Witnesses testified that as the class

members at Pontiac need to be in a maximum-security facility and there were no other RTUs with

available space that could accommodate these class members. The suggestion that Defendants

raise salaries, apparently in the hopes that then Defendants could hire more guards, is too tenuously

connected to the alleged violation. Accordingly, Plaintiffs do not point to concrete steps that

Defendants could take to reasonably accommodate class members that would directly remedy the

alleged violations.

iii. Disparate Impact

Disparate impact claims under the ADA involve “practices that are facially neutral in their

treatment of different groups but that in fact fall more harshly on one group than another and

cannot be justified by business necessity.” Roberts v. City of Chicago, 817 F.3d 561, 566 (7th Cir.

2016). The challenged practice must not be “required by the necessities of the business or activity

in question.” Matthews v. Cmmw. Edison Co., 128 F.3d 1194, 1196 (7th Cir. 1997).

In Matthews, the Seventh Circuit further clarified that the disparate impact must be due to

discrimination. Id. The Seventh Circuit gave the hypothetical example of an employer hiring a

prospective employee that was able to read more quickly over a prospective employee with

dyslexia who reads very slowly. The Seventh Circuit explained that if the job required a lot of

reading, the employer could give the job to the employee who could read more quickly and thus,

do the job better. However, if the employee could demonstrate that there was no business necessity,

then the hiring decision could qualify as discriminatory. Id.

Here, even assuming that there was a disparate impact on class members, the reason for

the policy was not discriminatory. Defendants have demonstrated that there was a valid

institutional necessity that for the sake of the safety of the guards and class members, Pontiac had

to cancel out of cell activities when there was not sufficient security staff.

C. The balance of harms and the public interest weigh against Plaintiffs.

In determining whether a preliminary injunction is appropriate, a plaintiff must compensate

for a low likelihood of success on the merits by “showing the balance of harms tips decidedly in

[their] favor.” Boucher v. Sch. Bd., 134 F.3d 821, 830, n.5 (7th Cir. 1998). Courts also must

consider whether a preliminary injunction would cause harm to the public interest and violate

principles of federalism and comity. Platinum Home Mort. Corp. v. Platinum Fin. Group, Inc.,

149 F.3d 722, 726 (7th Cir. 1998). Solving the problem of out of cell time, particularly among the

maximum-security inmates at Pontiac, is a complicated issue. Plaintiffs have not offered a solution

that would readily provide significant out of cell time. Defendants have offered up a plan that

would allow them to make additional guards available to transport class members at Pontiac to out

of cell time once they are able to transfer inmates to different facilities. The Court is limited in its

ability to craft injunctive relief that would swiftly and directly address the issue while still ensuring

safety for class members and the guards that work at Pontiac. Accordingly, a preliminary

injunction is also not appropriate due to concerns about the public interest and the lack of a clear

solution to the complex issues found at the maximum-security facility.

CONCLUSION

For the reasons stated above, Plaintiffs’ Motion for a Preliminary Injunction [3417] is

DENIED.

ENTERED this 2nd day of June, 2022.

/s/ Michael M. Mihm

Michael M. Mihm

United States District Judge