Monroe v. Rauner

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JANIAH MONROE,

MARILYN MELENDEZ,

LYDIA HELÉNA VISION,

SORA KUYKENDALL, and

SASHA REED, individually and on

behalf of a class of similarly situated

individuals,

Plaintiffs,1

v. Case No. 3:18-CV-00156-NJR

STEVEN BOWMAN,

MELVIN HINTON, and

LATOYA HUGHES,

Defendants.2

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

As context for this Order, this case proceeds as a certified class action consisting of

all prisoners in custody of the Illinois Department of Corrections (“IDOC”) who have

requested evaluation or treatment for gender dysphoria. (Doc. 213). To manage this case,

and in light of the serious deficiencies in IDOC’s treatment of transgender prisoners, the

Court has issued several injunctive orders, entered enforcement orders, and required

ongoing status reporting. (See Docs. 186, 187, 211, 212, 332, 336, 384, 522, 552, 584).

1 The named Plaintiffs are transgender women currently incarcerated in IDOC facilities. Like many

members of the Plaintiff class, the named Plaintiffs use chosen names reflecting their gender identity rather

than their legal names or given names at birth.

2 The named Defendants are the IDOC Chief of Health Services, the IDOC Chief of Mental Health, and the

IDOC Acting Director, respectively, all sued in their official capacities.

Early in this litigation, the Court held an evidentiary hearing to determine the

appropriateness of preliminary injunctive relief. (Docs. 157, 158). On December 19, 2019, as

a result of a two-day hearing, the Court issued its first Preliminary Injunction Order.

(Docs. 186, 187 (amended on March 4, 2020, at Doc. 212)). In that Order, the Court

thoroughly summarized the evidence presented at the hearing and noted that the parties

agreed that gender dysphoria qualified as a serious medical condition. (Doc. 186). The

Court analyzed Plaintiffs’ likelihood of success on the merits of its deliberate indifference

claim, assessed the showing of irreparable injury and inadequate remedy at law, and

balanced the possible harms and the public interest. The ordered injunctive relief

included disbanding the Transgender Care Review Committee for medical decisions

related to treatment of gender dysphoria, ensuring timely hormone therapy and proper

monitoring, ending the practices preventing necessary social transition, crafting

procedures permitting access to clinicians who are competent and qualified in treating

gender dysphoria,3 providing a path for evaluation for gender dysphoria, determining

placement on an individual basis, avoiding cross-gender strip searches, creating access

to gender-affirming clothing and grooming items, and developing training for

correctional staff on transgender-related issues.

This case proceeded to a four-day bench trial in August 2021. The testimony at that

trial made clear that IDOC demonstrated only minimal progress since the inception of

3 The World Professional Association for Transgender Health (“WPATH”) organization developed the

Standards of Care for the treatment of gender dysphoria, which are the benchmark for appropriate care of

individuals with this diagnosis. (Doc. 186, pp. 3-4, 31). To be considered competent and qualified, clinicians

must meet the WPATH competency requirements.

the case, even with the prior preliminary injunctive relief. (Docs. 319-328, 331, 332, 336).

While IDOC highlighted some progress, the Court recognized that serious constitutional

violations abounded—delays in treatment, unmonitored hormone levels, lack of

documentation or adjustment to dosages based on bloodwork, denial of hormone

therapy for treatment of gender dysphoria for some class members, lack of surgical

consultation, inconsistent access to gender affirming commissary items, cross-gender

strip searches, inappropriate shower accommodations, and persistent harassment,

humiliation, and misgendering. Days after trial, the Court issued an order reflecting its

preliminary findings of fact and conclusions of law, foreshadowing its ultimate decision,

and ordered preliminary injunctive relief to immediately address some of the most

egregious constitutional violations demonstrated at trial until the Court could finalize its

findings. (Docs. 331, 332, 336). In December 2021, the Court announced its intention to

appoint a Special Master or Monitor to oversee Defendants’ compliance with the ordered

injunctive relief, to track implementation of IDOC’s revised Administrative Directives

regarding transgender prisoners and advise the Court and the parties as to the overall

progress in remedying the unconstitutional treatment of class members. (Doc. 370).

Ultimately, the Court decided that the path towards justice required further injunctive

relief.4 (Docs. 331, 332, 336).

To draw the curtain on the bench trial, the Court entered its Final Findings of Fact

4 The undersigned issued a verbal ruling for specific preliminary injunctive relief at the close of the bench

trial on August 5, 2021, later set forth in the Order of August 9, 2021, the Preliminary Findings of Fact and

Conclusions of Law. (Docs. 331; 349, pp. 972-92). Moreover, a correction to the ordered injunctive relief was

made on August 18, 2021, to reflect the correct target testosterone level for transgender females undergoing

hormone treatment. (Doc. 336).

and Conclusions of Law on February 7, 2022 (“February 2022 Order”) holding that IDOC

violated the class members’ Eighth Amendment rights through deliberate indifference to

their need for adequate treatment of gender dysphoria. (Doc. 383). Along with that Order,

the Court issued more injunctive relief to remedy the constitutional violations proven by

Plaintiffs at trial (“operative injunction”).5 (Doc. 384). Within the following few months,

the Court also appointed two Co-Monitors, Dr. Amanda Harris and julie graham, MFT.

(Docs. 418, 423). As Co-Monitors, they submit reports detailing their observations

regarding compliance, or lack thereof, with the ordered injunctive relief. (Id.). Generally,

Dr. Harris oversees Defendants’ implementation of the ordered relief regarding medical

aspects of gender-affirming care, and julie graham maintains responsibility for oversight

of IDOC’s compliance with the search, private shower, and training provisions. (Id.).

After the entry of the operative injunction, the parties and the Co-Monitors

continued to work towards compliance with the granted injunctive relief. But in

November 2022, Plaintiffs filed a Motion for Finding of Contempt listing a slew of

disheartening deficiencies in administering and monitoring hormones, scheduling

surgery consultations and surgeries, providing gender-affirming commissary items,

cross-gender searches, private showering, coordinating social transition, and training

prison staff. (Doc. 455). Defendants responded to that motion asserting that, although

Plaintiffs preferred a swifter pace, they made diligent, ongoing efforts to comply with the

timelines and actions set by the Court. (Doc. 462).

5 This document carries the title of “Preliminary Injunction,” which fuels Defendants’ argument in the

pending motion to vacate, but the implication of the Order will be discussed further below.

The Court continued to hold the motion under advisement. Discouragingly,

IDOC’s continued lack of progress towards the ordered injunctive relief necessitated

additional enforcement orders to keep efforts on track and provide measurable

benchmarks for the formidable work ahead. (Docs. 522, 552, 584). Along with several

status conferences, the Court entered these orders with deadlines for certain actions,

reports, and certifications to be completed. (Id.). The Court also sternly warned of a

contempt finding and possible sanctions for continued non-compliance with its operative

injunction. (Id.).

Now, after issuance of the enforcement orders and over a year after entry of the

operative injunction, Defendants argue that the injunctive relief issued by the Court

automatically expired 90 days after issuance, and the Court’s recent enforcement orders

erroneously attempt to execute the expired injunctions along with imposing additional

obligations that exceed the limitations in the Prison Litigation Reform Act (“PLRA”).

(Doc. 587). For example, Defendants urge that the Court impermissibly required specific

actions within specific timeframes instead of permitting Defendants discretion to plan

and execute remedial measures. (Id.). According to Defendants, Plaintiffs also cannot

prove a continuing constitutional violation (deliberate indifference to a serious medical

need). (Id.). As such, Defendants move to vacate the Court’s enforcement orders

(Docs. 522, 552, 584), request an acknowledgement that the operative injunction (Doc. 384

(incorporating Docs. 186, 187, 211, 212, 226)) is expired and has no effect, and seek

permission to provide updated evidence of IDOC’s ongoing efforts before entering

further relief. (Doc. 587). Simultaneously, Defendants ask the Court to stay compliance

with the challenged orders. (Doc. 588). Plaintiffs filed timely responses to both motions.

(Docs. 597, 598).

MOTION TO VACATE (DOC. 587)

I. Legal Standard

Under Federal Rule of Civil Procedure 60, a court may relieve a party from a final

judgment, order, or proceeding because the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that has been reversed or vacated; or

applying it prospectively is no longer equitable; or for any other reason that justifies

relief. FED. R. CIV. P. 60(b)(5)-(b)(6). For the first ground for vacating an order in Rule

60(b)(5), a party must show that it has achieved that the objectives of the order or decree.

Shakman v. Pritzker, 43 F.4th 723, 728 (7th Cir. 2022). Consideration of a motion under Rule

60(b)(5) does not permit re-litigation of issues which the judgment already resolved.

Money Store, Inc. v. Harriscorp Finance, Inc., 885 F.2d 369, 372 (7th Cir. 1989). In some

circumstances, cases involve more than one final decision, for example, post-judgment

orders entered pursuant to the jurisdiction a court has retained to enforce a prior order,

may be considered final orders. See Armstrong v. Schwarzenegger, 622 F.3d 1058, 1064 (9th

Cir. 2010).

II. Discussion

In their Motion to Vacate, Defendants argue that no final order issued after the

bench trial, all imposed preliminary injunctions expired within 90 days after issuance,

and the newly imposed obligations in subsequent enforcement orders exceed the

limitations imposed by the PLRA. Defendants also assert that the Court has erred by

continuing and incorporating older preliminary injunctions that already expired.

Moreover, Defendants assert that the imposition of any additional injunctive relief

against them, through the enforcement orders, lacks a finding that such relief is narrowly

drawn, extends no further than necessary to correct the violation of a constitutional right,

and is the least intrusive means necessary to correct the violation of the constitutional

right as required by the PLRA, under 18 U.S.C. § 3626(a). What’s more, Defendants accuse

the Court of conflating the Plaintiffs’ and Co-Monitors’ suggestions with what is

constitutionally required, without making the statutorily required findings that such

relief is necessary to remedy a constitutional harm. As such, Defendants contend that the

Court has erred by entering orders contrary to the plain language of the PLRA and

impermissibly infringing upon Defendants’ discretion. Defendants also emphasize that

they have attempted to deferentially alert the Court as to these issues in multiple ways

before formally seeking to vacate the orders.

a. Injunctive Relief Standards

Preliminary injunctions are temporary injunctions issued before or during trial to

prevent an irreparable injury from occurring before the court has a chance to decide the

case.6 To issue preliminary injunctive relief, courts engage in a muti-step inquiry.

International Ass’n of Fire Fighters, Local 365 v. City of East Chicago, 56 F.4th 437, 446 (7th

Cir. 2022). At the threshold, the injunction-seeking party must show some likelihood of

succeeding on the merits, that it lacks an adequate remedy at law, and it will suffer

6 See Preliminary Injunction, BLACK’S LAW DICTIONARY (11th ed. 2019), accessed via Westlaw.

irreparable harm if preliminary relief is denied. Cassell v. Snyders, 990 F.3d 539, 544-45

(7th Cir. 2021). From there, a court balances the irreparable harm the non-moving party

will suffer if preliminary relief is granted against the irreparable harm to the moving

party if relief is denied. Id. (citing Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S.

of America, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008)). A court also must consider the public

interest, including any consequences of granting or denying injunctive relief to non-

parties. Id.

In contrast, the issuance of a permanent injunction involves a trial on the merits.7

In the case of a bench trial, a court issues findings of fact and conclusions of law under

Federal Rule of Civil Procedure 52(a)(1), and enters a final order granting or denying the

requested relief. The standard for permanent injunctive relief is similar to that of a

preliminary injunction. But because permanent injunctive relief is a form of relief on the

merits, a plaintiff must demonstrate not simply a probability of success on the merits but

actual success. Vaughn v. Walthall, 968 F.3d 814, 824-25 (7th Cir. 2020). Thus, permanent

injunctive relief is appropriate when the injunction-seeking party shows: “(1) that it has

suffered an irreparable injury; (2) that remedies available at law, such as monetary

damages, are inadequate to compensate for that injury; (3) that, considering the balance

of hardships between the plaintiff and defendant, a remedy in equity is warranted; and

(4) that the public interest would not be disserved by a permanent injunction.” Id. (citing

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

7 See Permanent Injunction, BLACK’S LAW DICTIONARY (11th ed. 2019), accessed via Westlaw (defining

“permanent injunction” as “[a]n injunction after a final hearing on the merits”).

“The PLRA circumscribes the scope of the court’s authority to enter an injunction

in the corrections context.” Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012); 42 U.S.C.

§ 1997e & 18 U.S.C. § 3626. The PLRA delineates slightly different rules for preliminary

and prospective injunctive relief. For preliminary injunctive relief, the PLRA dictates that

it “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). Further, a court must give substantial weight

to any adverse impact on public safety or the operation of a criminal justice system and

respect the principles of comity within the statute in tailoring preliminary relief. Id. For

preliminary injunctions subject to the PLRA, automatic expiration occurs after 90 days,

unless the court makes the necessary findings for entry of prospective relief and makes

the order final before expiration of the 90-day period. Id.

Similarly, the PLRA constrains the scope of prospective relief to only the extent

necessary to correct the violation of the Federal right of particular plaintiffs. 18 U.S.C.

§ 3626(a)(1)(A). To grant prospective relief, a court must find “that such relief is narrowly

drawn, extends no further than necessary to correct the violation of the Federal right, and

is the least intrusive means necessary to correct the violation of the Federal right.” Id. In

familiar fashion, the PLRA requires courts to afford substantial weight to any adverse

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

ordered prospective relief. Id. A defendant may move to terminate prospective relief that

does not meet this standard. Miller v. French, 530 U.S. 327, 333 (2000). Section 3626(b)(2)

provides that a defendant “shall be entitled to the immediate termination of any

prospective relief” lacking the requisite narrowness-need-intrusiveness finding. But

“prospective relief shall not terminate if the court makes written findings based on the

record that prospective relief remains necessary to correct a current and ongoing

violation of the Federal right” and satisfies the narrowness-need-intrusiveness

requirement. 18 U.S.C. § 3626(b)(3).

b. February 2022 Order

The Court provides this brief explanation of the standards for injunctive relief,

specifically under the PLRA, to lay the foundation for a necessary discussion clarifying

the February 2022 Order (Doc. 383), the operative injunction (Doc. 384), and the effect of

each on this case.

In its February 2022 Order, the Court endeavored to explain its final findings of

fact and conclusions of law from the August 2021 bench trial. In doing so, the Court

issued a ruling on the merits of the case finding that Defendants acted with deliberate

indifference to Plaintiffs’ serious medical need of gender dysphoria in violation of the

Eighth Amendment. As a result, the Court ordered prospective injunctive relief as an

equitable remedy to this constitutional violation. Admittedly, the Court, throughout its

February 2022 Order, referred to either “preliminary relief” or simply “injunctive relief,”

outlined the standard for preliminary injunctive relief,8 and titled the accompanying

injunction a “Preliminary Injunction.” Simply put, this was a mistake.

8 Immediately after describing the standard for preliminary injunction, the Court referred to the

narrowness-need-intrusiveness standard for prospective relief under the PLRA. (Doc. 383, p. 64). This

inconsistency further signals the Court’s intention to issue prospective or permanent relief, rather than

preliminary relief.

But from the substance of the February 2022 Order and operative injunction, along

with the context and ongoing actions of the Court and the parties, it is clear that the relief

was intended and understood to be permanent injunctive relief resulting from the

evidence presented at the bench trial.

First, the Court’s justification for injunctive relief provided in the February 2022

Order satisfied the requirements for permanent injunctive relief. In evaluating the

prudence of preliminary injunctive relief, the Court found that remedies available at law

inadequately compensated Plaintiffs’ injuries, the balance of hardships between Plaintiffs

and Defendants warranted a remedy in equity, and the injunction served public interest.

(Doc. 383, p. 65). These are all necessary findings to satisfy permanent injunctive relief as

well. To issue permanent injunctive relief, as opposed to preliminary relief, a court must

find actual success on the merits of the claim rather than likelihood of success. In its

February 2022 Order, the Court explicitly made such a finding. The Court held that, based

on the evidence presented at trial thoroughly recounted in the Order, Defendants

violated Plaintiffs’ Eighth Amendment rights for failure to provide constitutionally

required treatment for gender dysphoria and exhibited ongoing deficiencies in delivery

of medically necessary treatments on a systemic, statewide level in IDOC correctional

institutions. (Doc. 383, pp. 66, 70). With this finding, the permanent injunctive relief was

appropriate and provided closure on the merits after the bench trial.

The February 2022 Order and subsequent operative injunction satisfy the PLRA’s

requirement that the granted prospective relief is narrowly drawn, extends no further

than necessary to correct the violation of the Federal right, and represents the least

intrusive means necessary to correct the violation, as well as considering the adverse

impact on public safety or operation of a criminal justice system. These narrowness-need-

intrusiveness inquiries overlap significantly and can blend together. “What is important,

and what the PLRA requires, is a finding that the set of reforms being ordered—the

‘relief’—corrects the violations of prisoners’ rights with the minimal impact possible on

defendants’ discretion over their policies and procedures.” Armstrong, 622 F.3d at 1071.

In its Order, the Court thoroughly explained the evidence at trial and explicitly

outlined the need for injunctive relief to correct the persistent unconstitutional treatment

of Plaintiffs’ serious medical condition of gender dysphoria. In the “Treatment of Gender

Dysphoria” section of its February 2022 Order, the Court reiterated many of the

principles established in its prior orders concerning the appropriate treatment for gender

dysphoria, including the World Professional Association for Transgender Health

(“WPATH”) Standards of Care, which are considered the benchmark for appropriate

care.9 (Doc. 383, pp. 4 n. 3, 5-9). Thus, the Court has considered WPATH’s Standards of

Care as the constitutional floor of treatment for gender dysphoria. In its Order, the Court

clearly tailored its injunctive relief in accordance with this constitutional floor, breaking

down relief into categories reflected in WPATH’s Standards of Care—social role

transition, psychotherapy, surgery, and cross-sex hormone therapy. The Order reviewed

the IDOC policies regarding transgender inmates and their various inadequacies along

with the specific testimony at trial further substantiating those inadequacies. (Id. at pp. 9-

9 Notably, as the Court asserted long ago in this case, Defendants do not offer any other standard of care

that rivals that of WPATH, which could be an appropriate, accepted alternative and establish a lower

constitutional floor. (Doc. 186, p. 31).

61).

The February 2022 Order and operative injunction also incorporate relief that does

not intrude upon IDOC’s discretion to develop solutions, policies, and procedures to

deliver constitutionally required care to transgender inmates. The Court identifies the

primary focus of its ordered injunctive relief as outcomes that raise IDOC’s treatment onto

the constitutional floor, rather than prescribing the methods for how IDOC achieves those

outcomes. (Id. at pp. 66-68). Lastly, the February 2022 Order clearly identifies and

evaluates extensive testimony regarding public safety and institutional security

implications related to the injunctive relief sought by Plaintiffs. (Id. at pp. 31-34).

Ultimately, the Order, in aggregation, establishes that the granted relief satisfies the

narrowness-need-intrusiveness requirement, along with consideration of public safety

and institutional security. The Court provides this explanation to highlight the February

2022 Order’s compliance with the PLRA’s mandate for prospective relief. To be sure, in

its Motion to Vacate, Defendants do not appear to challenge the February 2022 Order for

lacking a narrowness-need-intrusiveness finding, but rather they argue that the

subsequent enforcement orders lack such a finding—which the Court will address below.

Additionally, after the bench trial in 2021, the Court made preliminary rulings

from the bench which support the notion that the February 2022 Order amounted to the

Court’s Final Findings of Fact and Conclusions of Law along with permanent injunctive

relief. (Doc. 328). In reaching the decision to issue immediate interim preliminary relief,

the Court stated, “So, obviously I am going to have to continue to follow up with

permanent injunctive relief and may at some point consider the appointment of an

independent monitor to ensure ongoing compliance, but that’s an issue for another day.”

(Id. at pp. 7-8). The Court also said, “Notably, the request for preliminary injunctive relief

was vigorously opposed by counsel, as was permanent injunctive relief during this trial.”

(Id. at pp. 4-5). Alluding to the permanent injunctive relief to come, the Court mentioned

that “there are simply some issues that have come to light in the past four days that are

so serious, such serious violations of the Eighth Amendment, that they must be immediately

addressed[,]” and further that, “I find that Defendants continue to be deliberately indifferent

to Plaintiffs’ serious medical condition, that is gender dysphoria[.]” (Id. at pp. 9, 11-12)

(emphasis added). The Court immediately entered its Preliminary Findings of Fact and

Conclusions of Law, along with a Preliminary Injunction Order after the trial. (Docs. 331,

332). Eventually, the Court entered the February 2022 Order finalizing its findings from

the trial and allowing the forewarned injunctive relief to come to fruition.

Moreover, the Court’s announcement that an independent monitor may be

appointed to ensure compliance with permanent injunctive relief paired with its eventual

appointment of independent monitors10 points to the permanent nature of the Court’s

injunction. In its Order explaining the need for a Monitor to oversee Defendants’

compliance, the Court stated that “the post-trial remedial phase of this matter is

sufficiently complex to exceed the Court’s ability to effectively and timely evaluate the

records to determine whether Defendants are making adequate progress toward

10 In an Order on December 13, 2021, the Court advised the parties of its intention to appoint a Monitor to

oversee Defendants’ compliance with its preliminary injunctions up until that point. (Doc. 370). In its

February 2022 Order, it incorporated the use of the Monitor to assess and advise the Court on how to

“remedy the unconstitutional treatment of transgender prisoners in IDOC custody…and work with the

parties to accomplish those revisions.” (Doc. 383, p. 70).

compliance with the Court’s orders.” (Doc. 370, p. 5). Again, the Court recognizes its own

mislabeling, but the context surrounding the February 2022 Order provides clarity as to

the intended permanent nature of the relief granted.

In further evidence that the parties understood the injunctive relief as permanent,

the Court points to the behavior of the parties from the issuance of the operative

injunction until the filing of Defendants’ present motion to vacate. Although Defendants

contend that the operative injunction expired on May 8, 2022 (90 days after issuance),

Defendants continued to acknowledge the role of the Co-Monitors, engaged in status

conferences and many other communications with the Co-Monitors, Plaintiffs, and the

Court, and responded to Plaintiffs’ Motion for Finding of Contempt.

Despite these multiple opportunities, Defendants failed to raise any issue with the

operative injunction as expired preliminary relief. Then, over a year after the issuance of

the February 2022 Order and operative injunction, Defendants raised the argument that,

under the PLRA, preliminary injunctive relief automatically expires after 90 days, and, as

such, they have no further obligation to comply with the operative injunction without

further hearings or findings by the Court. Unsurprisingly, Defendants’ argument arrives

on the heels of threatened sanctions for their continued noncompliance. This attempt is

disingenuous, at best, given Defendants’ behavior for over a year treating the February

2022 Order as prospective, permanent injunctive relief and understanding the Court’s

authority to ensure and monitor compliance with the ordered relief. To allow Defendants

to raise this argument in such an untimely fashion would seriously disrupt this case.

“A party’s unreasonable delay in advancing a good ground for a change in a previous

ruling is normally a compelling ground for deeming even a good ground waived.” Carr

v. O’Leary, 167 F.3d 1124, 1126 (7th Cir. 1999). Defendants are attempting to set this case

back to square one, which is impermissible at this stage. Clearly, based on the context and

behavior of the parties, the February 2022 Order and subsequent operative injunction,

despite a mislabeling, actually provide permanent injunctive relief.

The Court recognizes that it should have issued an accompanying judgment in

favor of Plaintiffs after its February 2022 Order. As described, the February 2022 Order

included the Court’s final findings of fact and conclusions of law after the August 2021

bench trial and granted permanent injunctive relief. This amounted to final judgment in

favor of Plaintiffs.

c. Enforcement Orders & Prior Preliminary Injunction Orders

As for the prior preliminary injunctions, regrettably, the Court recognizes its

procedural failure to appropriately renew each injunction upon the automatic 90-day

expiration encompassed in the PLRA. Again, the parties failed to raise this argument in

a timely fashion for the Court to make necessary adjustments to those orders. Defendants

contend that they raised the expiration argument in 2020 within their response to

Plaintiffs’ Renewed Request for Appointment of Independent Monitor. (Doc. 226). In its

Order denying that request, the Court directed Defendants to raise this argument in an

independent motion for the Court to evaluate. (Doc. 246). Defendants declined to do so.

As such, the case proceeded under the assumption that the preliminary orders remained

in effect. This was also a mistake.

The Court outright rejects Defendants’ argument that the Court’s recent

enforcement orders (Docs. 522, 552, 584) were based on those initial injunctions. The

Court reincorporated the terms of its prior, albeit expired, injunctions directly into the

February 2022 Order and operative injunction, which constitute permanent, final

injunctive relief, as explained above. The content of those orders became part of the

permanent injunctive relief granted by the Court by their explicit reincorporation based

on findings from the bench trial. As such, the enforcement orders were not based on the

expired preliminary orders entered by the Court, but rather on the February 2022 Order

and operative injunction. To the extent that Defendants argue the enforcement orders

should be vacated under Rule 60(b)(5) because they are based on an earlier judgment that

has been reversed or vacated, the Court disagrees.

Of course, when a court issues a permanent injunction, it automatically, with or

without explicit reservation of jurisdiction, retains jurisdiction to enforce it. McCall-Bey v.

Franzen, 777 F.2d 1178, 1183 (7th Cir. 1985). Federal courts are not reduced to issuing

injunctions against state officers and crossing their fingers in hopes for compliance. Hutto

v. Finney, 437 U.S. 678, 690 (1978). After issuance, an injunction may be enforced. Id. “An

injunction is supposed to be a swift and effective remedy, summarily enforceable through

contempt or other supplementary proceedings in the court that issued the injunction.” Id.

Here, the Court has engaged in many efforts and supplementary proceedings to

enforce its injunction and ensure compliance including reviewing briefing on Plaintiffs’

contempt motion, hosting several status conferences and continued contempt hearings,

and evaluating numerous reports from the Co-Monitors regarding areas of compliance

and non-compliance. Its recent enforcement orders are a product of those efforts. All of

the requirements outlined in the enforcement orders are congruent with the spirit of the

February 2022 Order and operative injunction (the permanent injunctive relief in this

matter).

Defendants further argue that the enforcement orders must be terminated because

they prescribe prospective relief but do not contain the necessary PLRA narrowness-

need-intrusiveness findings. Defendants emphasize that the orders are not tied to

constitutional violations. Criticizing the enforcement orders, Defendants argue that the

Court impeded their discretion and ran afoul of the PLRA by mandating specific actions

and timelines. To this end, Defendants primarily take issue with the Court’s direction to

contact other providers for gender-affirming surgery, despite their preference to work

with one trusted surgeon to set up pre- and post-surgical guidelines, training, and

accommodations, and to develop a gender-affirming kit for commissary items.

Defendants also heavily rely on the Seventh Court’s decision in Rasho v. Jeffreys, 22 F.4th

703 (7th Cir. 2022), to argue that the Court is conflating the most effective or preferred

solution with what is constitutionally required.

But the Court’s enforcement orders do not attempt to issue additional or new

prospective injunctive relief. Instead, the enforcement orders are aimed at enforcing the

terms of the already imposed permanent injunctive relief providing more clear and

specific ways to achieve those objectives given Defendants’ continued failures and delays

in complying with their obligations under the operative injunction. Through the status

conferences/continued hearings on the contempt motion, and reflected in its

enforcement orders, the Court clearly believes that Defendants have failed to comply

with its injunction in many ways. Notably, many of the deadlines within the enforcement

orders are reporting deadlines to keep the Co-Monitors and Court apprised of

Defendants’ progress. Other deadlines relate to the previously ordered relief—like

deadlines for blood hormone level monitoring, coordinating surgical consultations, and

scheduling surgeries—and these deadlines are all imposed due to Defendants’ active

noncompliance with the operative injunction. For example, the operative injunction (as

did the prior injunctions to no avail) directs Defendants to “ensure that timely hormone

therapy is provided when medically necessary, including the administration of hormone

dosage adjustments, and to perform routine monitoring of hormone levels.” (Doc. 384,

p. 2). As Defendants have failed to act in such a “timely” manner, the Court’s enforcement

orders clarify the term “timely” and provide Defendants a reasonable opportunity to

comply before fully finding them in contempt and issuing sanctions. Given the sequence

of events justifying permanent injunctive relief and leading to the operative injunction,

the Court believes it is within its equitable powers to clarify and create deadlines where

Defendants have demonstrated a failure to comply. As with Defendants’ arguments

related to Rasho, the Court has made clear that its injunctive relief meets the constitutional

floor for medical care and treatment of transgender inmates and aligns with the WPATH

Standards of Care. Indeed, Defendants have never pointed to any standards that require

less in adequately treating gender dysphoria.

The Court considers its enforcement orders an effort to allow Defendants to come

into compliance within an extended time period before finding them in contempt, as well

as a further clarification of its operative injunction for areas in which Defendants continue

to miss the mark and complain about the difficulty in effecting compliance. But “[t]he

scope of an injunction has no rigid perimeter, and a court may modify an injunction to

adapt to changed circumstances” as well. Rockwell Graphic Systems, Inc. v. DEV Industries,

Inc., 91 F.3d 914, 920 (7th Cir. 1996). Lack of full compliance can be the sort of changed

circumstance that justifies extending a means contemplated by the original injunction or

issuing additional substantive measures and injunctive relief. Norman v. McDonald, 930

F. Supp. 1219, 1227 (N.D. Ill. 1996); see also Hutto, 437 U.S. at 687 (a pre-PLRA case finding

that the “long and unhappy history of the litigation” justified a comprehensive order with

time limits to insure against the risk of inadequate compliance).

If the Court did modify its operative injunction, it would necessarily need to make

the findings required in the PLRA (narrowness-need-intrusiveness). Again, the Court

does not find that it modified its operative order and, as such, does not conclude that any

such finding was required under the PLRA. See 18 U.S.C. § 3626(b)(2) (stating that a

defendant is entitled to the immediate termination of any prospective relief if the relief

was approved or granted in the absence of a narrowness-need-intrusiveness finding).

Each enforcement order—especially the most recent—recounts the ongoing status

conferences with the parties, describes the ongoing delays, announces the need for

measurable benchmarks, provides ample leeway for Defendants’ discretion in ordering

reporting, conferral and discussion with the Co-Monitors and Plaintiffs to develop plans,

and reiterates Defendants’ ongoing obligations under the operative injunction. Thus,

even if construed as modifications given Defendants’ ongoing noncompliance, the orders

meet the requirements under the PLRA for narrowness-need-intrusiveness. Notably,

Defendants also complained, in their response to Plaintiffs’ Motion for Finding of

Contempt, that “the injunctive relief at issue is overly broad and not easy to measure.”

When a defendant argues that an injunction’s vagueness makes it impossible to know

how to precisely comply with a court’s command, it is well within a court’s authority to

make a reasonable modification in response. See United States v. Spectrum Brands, Inc.,

924 F.3d 337, 358 (7th Cir. 2019). So, in any event, a modification may be permissible here.

For these reasons, the Court denies Defendants’ Motion to Vacate the Court’s

enforcement orders. (Doc. 587). With this denial, the Motion to Stay Compliance is also

denied as moot. (Doc. 588).

It is also necessary to clarify two of Defendants’ main areas of concern within the

enforcement orders. With its direction to contact other providers for gender-affirming

surgery consultations and surgeries, the Court was not attempting to frustrate

Defendants’ discretion by specifically prescribing that Defendants use additional

surgeons, especially providers unvetted or unapproved. The Court was, however,

ordering Defendants to evaluate other options, as their plan of using one surgeon to

satisfy various components of the operative injunction is clearly ineffective and causing

Plaintiffs to continue to suffer constitutional harms. Defendants can exercise their

discretion as to which other medical providers to use, how to find those providers, and

how to evaluate those providers. Moreover, regarding the “gender affirming kit,” the

Court has simply directed Defendants to create a list of gender-affirming versions of

items already provided to cisgender inmates, such as grooming items and

undergarments, and ultimately provide those items to class members. This aligns with

the relief ordered in the operative injunction and, as discussed by the Court earlier,

provision of these items is necessary to meet the constitutional floor for treatment of

gender dysphoria.

MOTION FOR FINDING OF CONTEMPT (DOC. 455)

I. Legal Standard

District courts possess inherent power to enforce their orders and ensure judicial

proceedings are conducted in an orderly manner. F.T.C. v. Think Achievement Corp., 144 F.

Supp. 2d 1029, 1033-34 (N.D. Ind. 2001). A court’s power to enforce its order by civil

contempt rests within this inherent authority. Pearle Vision, Inc. v. Romm, 541 F.3d 751,

757 (7th Cir. 2008). To hold a party in contempt, the district court must identify an order

or decree from the court which provides in specific detail an unequivocal command

which the party in contempt violated. Stotler and Co. v. Able, 870 F.2d 1158, 1163 (7th Cir.

1989). Such violation need not be “willful” for the party to be in contempt, rather a court

may find a party in civil contempt when that party failed to be “reasonably diligent and

energetic in attempting to accomplish what was ordered.” Id. The violation of a court

order must be proven by clear and convincing evidence. Goluba v. School Dist. of Ripon,

45 F.3d 1035, 1037 (7th Cir. 1995).

II. Discussion

Plaintiffs argue that Defendants have not shown reasonable diligence in

complying with the Court’s unequivocal orders to provide constitutional care to the

serious detriment of the class members. Relying on class members’ accounts and Co-

Monitor reports, Plaintiffs contend that Defendants failed to provide hormone therapy to

over a third of the Plaintiff class and less than 15 percent of all class members receiving

hormone therapy tested within the appropriate therapeutic range. Regarding gender-

affirming surgeries and pre-surgical hair removal, at the time of the motion11 no class

member had received or had been scheduled for surgery or completed pre-surgical hair

removal. For class members who already received approval for surgery, none had

completed pre-surgical hair removal. Similarly, Plaintiffs reported slow or non-existent

efforts towards transferring transgender women out of male prisons, fostering social

transition, completing an efficacious PRISM program, providing appropriate

commissary items, mitigating search, shower, and safety issues, and educating staff.

On the other hand, Defendants argue that Plaintiffs appear concerned not with

compliance but with the amount of time it is taking to achieve compliance. Further,

Defendants state that speed should not be the primary concern when dealing with prison

policy changes or with medical care that results in irreversible changes to physical

anatomy. Defendants maintain that they have complied, within the limits of their control,

to provide timely hormone therapy. As for gender affirming surgeries, Defendants note

that the Court’s order contained no requirement that surgeries occur within a certain

timeframe, and as such Plaintiffs cannot complain about the pace of providing surgery.

Defendants also fault Dr. Schechter’s change of positions and hospitals as the hindrance

11 Based on recent reporting by Co-Monitor Dr. Harris, some progress has been made in these areas. For

surgery, in 2023, a total of six surgeries have been completed (four vaginoplasties and two chest

reconstructions). An additional 17 individuals have been identified as able to progress to surgical

consultation, 15 of whom have scheduled appointments (updates are pending as to whether any

appointments have occurred, and some are scheduled as far out as April 2024). (Doc. 674).

to scheduling surgeries. With pre-surgical hair removal, Defendants argue that they

complied with the Court’s orders by finalizing a contract for hair removal services and

making hair removal services available. Within the several other areas of the injunction

(Continuing Quality Improvement program, transfers and social transition, PRISM

program, commissary, searches and identification policies, showers, training),

Defendants argue they have been dutifully compliant with the Court’s unambiguous

orders and acted with reasonable diligence, especially considering the lack of ordered

timelines and generalized commands.

As is clear from the Co-Monitor’s reporting and the status conferences with the

parties, Defendants’ efforts fall short of reasonable diligence and energy in attempting to

accomplish the ordered relief. The Court has certainly alluded to this finding in its three

enforcement orders. Instead, Defendants continue to create their own bottlenecks in

effecting the ordered relief, such as limiting themselves to only one medical provider, Dr.

Schechter, with an overly saturated surgical schedule for surgical consultations and

surgeries of class members.12 Moreover, Defendants’ argument regarding Plaintiffs’

desired rushed timing for prison policy changes and irreversible surgeries focuses only

on the burden to Defendants in effecting these ordered changes, however, they fail to see

that speed is and should be an obvious concern in rectifying constitutional harms. Their

glacial pace ensures that class members continue to suffer from the same constitutional

injuries the Court identified after the bench trial more than two years ago. To add insult to

12 Defendants reported on June 1, 2023, that another provider was expected to join Dr. Schechter’s practice

on July 1, 2023. (Doc. 590). But that potential expansion of access to surgery has not been confirmed.

injury, Defendants also boast that they have complied with the Court’s ordered injunctive

relief because the Court never specified deadlines, and then, in their Motion to Vacate,

they criticize the Court for exceeding its authority under the PLRA by imposing deadlines

for compliance. They want it both ways. But this cannot be so, as it would render a court’s

equitable powers useless.

The Court has reviewed clear and convincing evidence, from the motions, status

conferences, and Co-Monitor reports, that leads the Court to believe that Defendants

were (and perhaps still are) in contempt of the Court’s operative injunction. But because

of the confusion that this Court unintentionally infused into this case concerning the

nature of the operative injunction, and given the considerable time that has passed since

the issuance of the Court’s enforcement orders and the filing of the Motion for Contempt

Finding, the Court is inclined to avoid imposing sanctions at this time. Instead, the Court

will set another status conference for the parties and the Co-Monitors to get this case back

on track. After that status conference, Defendants must confer with the Co-Monitors to

develop and propose a plan with reasonable timelines to achieve compliance in each of

the areas identified in the operative injunction. The Court will consider the proposed

timelines and either clarify or modify the operative injunction or enter another

enforcement order with the timelines for compliance and reporting. To be sure, if

Defendants remain in contempt, Plaintiffs are encouraged to file another motion, and the

Court will not hesitate to investigate and issue sanctions as necessary to ensure

compliance.

CONCLUSION

For these reasons, the Court DENIES Defendants’ Motion to Vacate (Doc. 587),

DENIES as moot Defendants’ Motion to Stay Compliance (Doc. 588), and GRANTS in

part and DENIES in part Plaintiff's Motion for Contempt Finding (Doc. 455). Moving

forward, the Court and the parties will take extra care to fully comply with the terms of

the PLRA in relation to the permanent injunction. The Court will set another status

conference for the parties and the Co-Monitors to get this case back on track and kickstart

Defendants’ proposed timeline for compliance.

Further, to clean up the mistakes reflected in the Court’s February 2022 Order and

the subsequent operative injunction, the Clerk’s Office is DIRECTED to modify the

docket text for the operative injunction to read “PERMANENT INJUNCTION (to be

interpreted in accordance with the Court’s Order at Doc. 678).” The Clerk’s Office is also

DIRECTED to enter judgment for Plaintiffs, as should have been done after the entry of

the February 2022 Order. Judgment should be entered without closing the case as the

Court retains jurisdiction to enforce and monitor compliance with its injunction.

The Court recognizes that these solutions are not perfect and apologizes for the

procedural confusion created with its prior orders.

IT IS SO ORDERED.

DATED: November 16, 2023

wtp Morten

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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