Petition for Writ of Certiorari — Thomas J. Dart, Sheriff, Cook County, Illinois, Petitioner v. Anthony Mays, et al.
Supreme Court briefJan 15, 2021
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No. ___________
In the Supreme Court of the United States
THOMAS J. DART, SHERIFF OF COOK COUNTY, ILLINOIS,
Petitioner,
v.
ANTHONY MAYS, INDIVIDUALLY AND ON BEHALF OF A
CLASS OF SIMILARLY SITUATED PERSONS, ET AL.
Respondents.
On Petition for Writ of Certiorari to the
U.S. Court of Appeals for the Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
GRETCHEN HARRIS SPERRY
Counsel of Record
ROBERT T. SHANNON
JAMES M. LYDON
Hinshaw & Culbertson
151 N. Franklin Street
Chicago, IL 60606
(312) 704-3521
gsperry@hinshawlaw.com
Counsel for Petitioner Thomas J. Dart
i
QUESTION PRESENTED
In 2015, this Court decided Kingsley v.
Hendrickson, 135 S. Ct. 2566 (2015), announcing for
the first time that Fourteenth Amendment due
process claims alleging excessive force against pretrial
detainees must be evaluated under an objective
standard. Kingsley is an extension of Bell v. Wolfish,
441 U.S. 520 (1979), which long ago set forth the
objective standard to be applied to detainees’
challenges to their conditions of confinement. But
circuit courts across the country have misconstrued
Kingsley and are deeply divided about whether and
how it altered the Bell standard for evaluating jail
conditions claims. Accordingly, the question presented
here is:
Whether Kingsley v. Hendrickson abrogated or
modified the standard for evaluating pretrial
detainees’ claims challenging their conditions
of confinement under the Fourteenth
Amendment, as set forth in Bell v. Wolfish.
ii
PARTIES TO THE PROCEEDINGS BELOW
The parties to the proceeding below were:
Petitioner Thomas J. Dart, Sheriff of Cook County,
Illinois, in his official capacity; and
Respondents Anthony Mays, individually and on
behalf of a class of similarly situated pretrial
detainees.
iii
RELATED PROCEEDINGS
Mays v. Dart, et al., 20-cv-2134, U.S. District Court for
the Northern District of Illinois. Judgments entered
April 9, 2020 and April 27, 2020.
Mays v. Dart, et al., No. 20-1792, U.S. Court of
Appeals for the Seventh Circuit. Judgment entered
September 8, 2020.
iv
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING BELOW ............ ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF CONTENTS ........................................... iv
TABLE OF APPENDICES ........................................ vi
TABLE OF AUTHORITIES ..................................... vii
PETITION FOR A WRIT OF CERTIORARI ............. 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ........................................ 2
STATEMENT OF THE CASE ................................... 3
A. Factual Background ...................................... 4
B. District Court Proceedings ........................... 7
Temporary Restraining Order (TRO) ........... 7
Preliminary Injunction.................................. 9
C. The Seventh Circuit’s Decision................... 11
REASONS FOR GRANTING THE PETITION ....... 13
v
I.
The Circuit Courts Of Appeals Are Deeply
Divided Over The Standard Applied To Alleged
Due Process Violations Brought By Pretrial
Detainees Challenging The Conditions Of
Confinement. .....................................................18
II.
This Circuit Split Is Particularly Evident In
Cases Analyzing Challenges To COVID-19
Protocols Under The Fourteenth Amendment.24
III. The Seventh Circuit’s Approach Falls On The
Wrong Side Of the Split And This Case Is An
Ideal Vehicle To Address The Question........... 26
CONCLUSION ......................................................... 36
vi
TABLE OF APPENDICES
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT, DATED SEPTEMBER
8, 2020 ............................................................................. 1a
APPENDIX B — MEMORANDUM OPINION
AND ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN
DIVISION, FILED APRIL 27, 2020 ....................... 29a
APPENDIX C — MEMORANDUM OPINION
AND ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN
DIVISION, DATED APRIL 9, 2020 ...................... 130a
vii
TABLE OF AUTHORITIES
Page(s)
Cases
Alderson v. Concordia Parish Corr. Facility,
848 F.3d 415 (5th Cir. 2017) ................................19
Aslanturk v. Hott,
459 F. Supp. 3d 681 (D. Va. May 8, 2020) ...........25
Baez v. Moniz,
460 F. Supp. 3d 78 (D. Mass., May 18,
2020) .....................................................................24
Banks v. Booth,
2020 U.S. Dist. LEXIS 107762 (D.D.C.
June 18, 2020) ......................................................25
Barrera v. Wolf,
455 F. Supp. 3d 330 (S.D. Tex. April 17,
2020) .....................................................................25
Baxley v. Jividen,
2020 U.S. Dist. LEXIS 239699 (D. W.
Va. Dec. 21, 2020) .................................................25
Bell v. Wolfish,
441 U.S. 520 (1979) ...................................... passim
Cameron v. Bouchard,
815 Fed. Appx. 978 (6th Cir. 2020) ......................25
Castro v. City of Los Angeles,
833 F.3d 1060 (9th Cir. 2016) ..............................20
viii
City of Canton v. Harris,
489 U.S. 378 (1989) ........................................21, 30
Coreas v. Bounds,
451 F. Supp. 3d 407 (D. Md. April 3,
2020) .....................................................................25
Darnell v. Piniero,
849 F.3d 17 (2d Cir. 2016) ..............................20, 24
Dilworth v. Adams,
841 F.3d 246 (4th Cir. 2016) ................................18
Farmer v. Brennan,
511 U.S. 825 (1994) ............................ 16, 19, 23, 30
Fernandez-Rodriguez v. Licon-Vitale,
2020 U.S. Dist. LEXIS 116749 (S.D.N.Y
July 2, 2020) .........................................................24
Gomes v. U.S. Dep’t Homeland Sec.,
2020 U.S. Dist. LEXIS 115070 (D.N.H.
July 1, 2020) .........................................................24
Gonzales v. O Centro Espirita Beneficiente
Uniao do Vegetal,
546 U.S. 418, 429 (2006) ......................................31
Hardeman v. Curran,
933 F.3d 816 (7th Cir. 2019) ................................21
Hare v. City of Corinth,
74 F.3d 633 (5th Cir. 1996) ..................................19
Hernandez v. Mora,
2020 U.S. Dist. LEXIS 106184 (N.D. Tex.
June 15, 2020) ......................................................25
ix
Hope v. Warden York Cty. Prison,
972 F.3d 310 (3d Dist. 2020) .................... 18, 24, 31
Hudson v. McMillian,
503 U.S. 1 (1992) ..................................................23
Jones v. Wolf,
2020 U.S. Dist. LEXIS 58368 (W.D.N.Y.) ...........24
Kennedy v. Mendoza-Martinez,
372 U.S. 144 (1963) ..............................................15
Kingsley v. Hendrickson,
135 S. Ct. 2566 (2015) .................................. passim
Mays v. Dart,
947 F.3d 810 (7th Cir. 2020) ................................25
McCann v. Ogle,
909 F.3d 881 (7th Cir. 2018) ................................21
Miranda v. County of Lake,
900 F.3d 335 (7th Cir. 2018) ..........................16, 21
Miranda-Rivera v. Toledo-Davila,
813 F.3d 64 (1st Cir. 2016)...................................19
Nam Dang v. Sheriff, Seminole Cty. Fla.,
871 F.3d 1272 (11th Cir. 2017) ............................19
O.M.G. v. Wolf,
2020 U.S. Dist. LEXIS 129300 (D.D.C.
2020) ...............................................................18, 26
Pell v. Procunier,
417 U.S. 817 (1974) ..............................................34
x
Pembauer v. Cincinnati,
475 U.S. 469 (1986) ..............................................22
Richmond v. Huq,
885 F.3d 928 (6th Cir. 2018) ................................19
Roman v. Wolf,
2020 U.S. App. LEXIS 30510 (9th Cir.
2020) .....................................................................25
S. Bay United Pentecostal Church v.
Newsom,
140 S. Ct. 1613, 1613-14 (2020) ............... 28, 32, 34
Stearns v. Inmate Services Corp.,
957 F.3d 902 (8th Cir. 2020) ................................18
Strain v. Regalado,
977 F.3d 984 (10th Cir. 2020) ..............................19
Yanes v. Martin,
464 F. Supp. 3d 467 (D.R.I., June 2,
2020) .....................................................................24
Statutes
28 U.S.C. § 1254(1) ......................................................1
42 U.S.C. § 1983.................................................2, 7, 18
Other Authorities
U.S. Const. amend. VIII ..............................................2
U.S. Const. amend. XIV, § 1 ........................................2
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Thomas J. Dart, Sheriff of Cook County,
Illinois, respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of
Appeals for the Seventh Circuit in this case.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Seventh Circuit is reported at 974 F.3d 810 and
is reproduced at Pet. App. 1a-28a. The district court’s
order granting the plaintiffs’ request for a preliminary
injunction is reported at 456 F. Supp. 3d 966 and is
reproduced at Pet. App. 29a-129a. The district court’s
order granting the plaintiffs’ request for a temporary
restraining order is reported at 453 F. Supp. 3d 1074
and is reproduced at Pet. App. 130a-172a.
JURISDICTION
The judgment of the United States Court of
Appeals for the Seventh Circuit was entered on
September 8, 2020. (1a-28a). Pursuant to the Court’s
March 19, 2020 order, this Petition was timely filed
within 150 days of the final judgment. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Eighth Amendment to the U.S. Constitution
provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VIII.
The Fourteenth Amendment to the U.S. Constitution
provides, in relevant part: “No state shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United Sates; nor shall
any state deprive any person of life, liberty, or
property, without due process of law…” U.S. Const.
amend. XIV, § 1.
The statutory provision involved is 42 U.S.C. § 1983,
which states:
“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State…subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress…”
3
STATEMENT OF THE CASE
Nearly forty years ago, the Court issued its opinion
in Bell v. Wolfish, 411 U.S. 520 (1979). It defined the
standard for evaluating pretrial detainees’ challenges
to their conditions of confinement under the
fourteenth
amendment
due
process
clause:
punishment may not be inflicted on a pretrial
detainee. Unless the conditions of confinement
amount to punishment, a detainee is not deprived of
his due process rights. The standard for evaluating
punishment is an objective one: detainees can make
their case by showing an expressed intent to punish,
or that the challenged conditions were unrelated to, or
were excessive in relation to, a legitimate nonpunitive
governmental purpose.
In 2015, the Court issued its opinion in Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015), defining the
standard for evaluating excessive force claims brought
by pretrial detainees. Kingsley is merely an extension
of Bell, as applied to the particular circumstances of
an excessive force claim. But it does not change the
standard articulated in Bell or alter its fundamental
precepts. Kingsley stands for the same proposition as
Bell: a pretrial detainee cannot be punished in
violation of his due process rights—but the standard
is expressed differently for an excessive force claim,
given the nature of the allegations in each. If
anything, Kingsley brought to light that a jail official’s
conduct must be viewed under a heightened standard
approaching recklessness. But the post-Kingsley
standards for conditions of confinement claims
emerging from the appellate circuits in the past five
years misstate its relevance and have caused
4
confusion for the courts and jail officials. Nowhere is
this confusion more evident than in the case below
from the Seventh Circuit, which applies its iteration
of the standard inconsistently within same opinion.
(1a-28a)
The case below also reveals the abiding need to
address this issue now, as the nation continues to
grapple with the COVID-19 pandemic. Many lawsuits
have been filed across the country challenging safety
protocols implemented in jails and detention centers
and the outcomes of these cases span a wide spectrum.
In some cases, courts have effectively become
“superwardens” of the jails, issuing mandatory
injunctions that direct wardens to implement policies
and protocols on the minutiae of jail operations. These
outcomes run directly contrary to Bell and its progeny,
which established the imperative of affording
significant deference to jail officials’ expertise in
managing complex jail operations and respecting the
functions of government expressly reserved to the
executive and legislative branches. For these reasons,
this Court must grant certiorari to clarify the
analytical framework to be applied to pretrial
detainees’ conditions of confinement cases as
distinguished from excessive force claims.
A. Factual Background
In January 2020, well before any governmental
acknowledgement of the looming global coronavirus
pandemic, Cook County Sheriff Thomas J. Dart and a
team of subject matter experts were already planning
for the arrival of the virus at the Cook County Jail,
one of the largest single-site jail complexes in the
5
country. (4a) As the district court and the appellate
panel recognized, the Sheriff took “numerous
proactive measures to prevent the spread of COVID19.” (6a) The in-house Environmental Health
Specialist at the Sheriff’s Office activated emergency
sanitation protocols and worked with the Cook County
Department of Public Health to develop enhanced
disinfection and sanitization practices in Jail housing
units, common areas, and eating spaces. (6a) The
Office would later hire two expert consultants—one of
whom was a former CDC Director—to advise on
sanitation and public health best practices. (7a)
During this time, the Office also worked with Dr.
Concetta Mennella, who operates Cermak Health
Services, the hospital and urgent care facility inside
the Jail, to devise medical protocols in case of an
outbreak. With the intake area of the Jail being the
most vulnerable point of entry, they implemented a
coronavirus screening and isolation procedure for all
new detainees. (6a; Appellant’s Br. 4) Each detainee
received a coronavirus screening at intake and was
placed in quarantine for seven (later fourteen) days
before entering the general population. The Office also
created quarantine and isolation tiers for those who
would be exposed to or infected with the virus,
according to standards set by the Centers for Disease
Control and Prevention (CDC). (5a; Appellant’s Br. 5)
In early March, the Office created the Critical
Incident Command Center (CICC) to monitor all
COVID-related incidents that could impact Jail
operations and drafted the first iteration of its
Coronavirus Operation Plan. The latter follows the
CDC’s Interim Guidance on Management of
6
Coronavirus Disease 2019 (COVID-19) in Correctional
and Detention Facilities (CDC Guidelines). (5a) The
CDC Guidelines recognize the functional and
operational limitations present in densely-populated
correctional facilities. The CDC explicitly states that
its Guidelines “may need to be adapted based on
individual facilities’ physical space, staffing,
population, operations, and other resources and
conditions.” (5a-6a)
In mid-March, the Office began the process of
opening three (later four) previously closed divisions
of the Jail to allow for more single-celled housing and
reduce density in the dormitory units. (6a) This was
an extraordinary undertaking: deep cleaning the
buildings, connecting utilities, staffing the divisions,
and arranging logistics for meal and medication
deliveries on a very expedited schedule. (Appellant’s
Br. 8)
The Office also coordinated with the courts,
prosecutors, and public defenders to secure the
release of more than 1,200 detainees—over 20% of the
Jail’s population—to electronic monitoring or other
modified conditions of bond. (7a)
Elsewhere
within
the
Sheriff’s
Office
organization—before the President of the United
States had even declared a national state of
emergency—the in-house Public Health Advisor
coordinated with state and local public health
departments to create updated protocols on housing
and testing requirements, use of personal protective
equipment
(PPE),
sanitation
protocols
and
minimizing the public health risk upon a detainee’s
7
release into the community. (Appellant’s Br. 8-9)
Because there was a global PPE supply shortage, the
Office also had daily contact with representatives
from the Federal Emergency Management Agency,
Senator Richard Durbin’s office, and the Illinois
Governor’s office to obtain PPE from the national
strategic stockpile. (6a) The CDC did not recommend
the universal use of face masks at this time and
cautioned that limited PPE supplies should be used
only by medical professionals, symptomatic
individuals, or jail staff and others who could bring
the virus in from the community. (Appellant’s Br. 10,
13) The Office also successfully lobbied to become one
of the first sites in the country to administer the newly
developed ID Now coronavirus rapid test. (7a)
All of these actions occurred before the first
reported case of coronavirus at the Jail on or about
March 23, 2020. A few days later, representatives
from the CDC and local public health department
toured the Jail and advised on its protocols and
compliance with the CDC Guidelines. (Appellant’s Br.
12)
B. District Court Proceedings
Temporary Restraining Order (TRO). Two
weeks later, a putative class of detainees sued the
Sheriff challenging the conditions of confinement at
the Jail, claiming the Sheriff’s Office had not taken
any meaningful steps to mitigate the spread of
coronavirus. They first sought categorical release
through a class-wide habeas proceeding. (7a) They
also asserted a claim under 42 U.S.C. § 1983 and
sought a mandatory temporary restraining order
8
(TRO) demanding that the Sheriff implement the
CDC Guidance at the Jail and many other specific
operational measures. In response, the Sheriff
demonstrated that all of the requested relief had
already been implemented at the Jail. He attached
twelve affidavits of Jail personnel documenting the
ongoing efforts taken to contain the spread of the
virus. (Appellant’s Br. 4-13) While the district court
relied heavily on the affidavits submitted by plaintiffs,
it largely ignored the Sheriff’s. (149a-154a)
After a telephonic hearing, on April 9, the district
court granted plaintiffs extraordinary relief in the
form of a TRO affirmatively ordering the Sheriff to:
establish “a policy requiring prompt coronavirus
testing” of certain detainees identified by the court;
provide facemasks to detainees who have been
“exposed to a symptomatic detainee (even if not
coronavirus-positive)”; enforce social distancing
during intake, including “suspending the use of
bullpens”; provide sufficient amounts of soap or hand
sanitizer and sanitization supplies, and establish a
policy requiring regular sanitization of surfaces,
including “monitoring and supervision to ensure that
it takes place.” (168a-170a) At that time, the court
rejected plaintiffs’ request to order social distancing in
the housing areas of the Jail based on the CDC’s
acknowledgment that space constraints often prohibit
the ability to enforce complete social distancing in
those areas. The court also credited the Sheriff’s
“ongoing effort to modify custodial arrangements” in
the housing areas to increase single-celled and
socially-distanced dorm housing, even though it was
not required by the TRO. (158a)
9
Preliminary Injunction. After the Sheriff
submitted his court-ordered report on implementation
of the TRO mandates, plaintiffs moved for a
preliminary injunction. They sought an order to
implement full six-foot social distancing throughout
the Jail, and largely abandoned their pursuit of the
issues in the TRO. (49a) The Sheriff argued that he
had greatly expanded social distancing in the housing
units. By opening shuttered divisions of the Jail and
reducing the Jail population by over 20%, he increased
the amount of single-celled housing by 545% and
reduced the capacity of the dorm housing to less than
50% in nearly all rooms. (Appellate Br. 17-18) But he
could not accommodate full social distancing for
detainees assigned to specialty medical housing areas
or those detainees in quarantine, isolation, or
convalescent tiers based on their COVID-19 status.
The district court held an evidentiary hearing at
which the Jail’s First Executive Director, Michael
Miller, testified. (50a-55a) Miller testified about pages
of occupancy charts showing where detainees were
housed throughout the Jail, broken down by division
and tier, listing maximum capacity and current
percentage occupancy, security designation, and
related detail about housing assignments. Miller
testified about how he used this data to inform
ongoing housing assignments. He moved detainees
from tier to tier as space became available to
maximize
single-celled
and
socially-distanced
housing, while also balancing traditional factors like
security
classifications
and
other
special
considerations. (45a-46a)
10
Miller also testified that representatives from the
CDC and the Chicago Department of Public Health
toured the Jail a week earlier. (45a) CDC Commander
Paige Armstrong commended the Office for “doing an
amazing job” implementing social distancing,
sanitization practices, and compliant use of PPE.
(Appellate Br. 18) Plaintiffs’ expert testified generally
about the medical course of the coronavirus and why
social distancing was one among many effective tools
for limiting the spread of infection, but offered no
specific testimony about the Sheriff’s conduct or the
Jail.
Nevertheless, on April 27, the district court issued
an order imposing a mandatory preliminary
injunction. The court commended the Sheriff’s
“significant, and impressive, effort to safeguard
detained persons in his custody from infection by
coronavirus” and expressed that “the Sheriff and his
staff have acted in good faith, with the goal of
protecting the people placed in his custody.” (93a)
Indeed, the court found that “the Sheriff has been
anything but deliberately indifferent to the risk of
harm to pretrial detainees from coronavirus.” (93a)
Despite these laudatory remarks, the court found
that the Sheriff’s response to the coronavirus was
objectively unreasonable and unconstitutional. (101a)
(“group housing and double celling subject detainees
to a heightened, and potentially unreasonable and
therefore constitutionally unacceptable, risk of
contracting and transmitting the coronavirus”). The
court previously ruled that CDC Guidelines did not
require social distancing in jails where it was not
feasible due to space limitations, but then changed
11
course. (96a n.8) It found that despite Miller’s detailed
testimony on housing assignments, “the Sheriff has
[not] yet hit the feasibility limit” on socially-distanced
housing. (101a) It then ordered the Sheriff to
implement socially-distanced housing in all tiers,
except where detainees were assigned to restricted
housing units for serious medical or COVID-related
conditions. (102a-103a)
The court also converted the terms of the TRO to a
preliminary
injunction.
Despite
repeatedly
recognizing the Sheriff’s compliance with the TRO,
and plaintiffs’ failure to challenge it, it nevertheless
concluded that “there is at least a possibility that
these important measures could slip to the wayside,
despite the Sheriff’s best intentions, as he works to
manage the complexities of the Jail during this public
health crisis.” (106a, 119a)
C. The Seventh Circuit’s Decision
On appeal, the Sheriff argued that the district
court failed to examine the totality of the Sheriff’s
actions taken in response to the coronavirus threat,
focusing too narrowly on social distancing, which was
but one aspect of a comprehensive set of protocols. The
Sheriff also argued that the district court improperly
shifted the burden to the Sheriff to prove why the TRO
mandates should not be converted to a preliminary
injunction and absolved plaintiffs of their burden of
proof. The Sheriff also argued that the district court
elevated its ideals above the Sheriff’s expertise and
judgment when deciding on the appropriate measures
to take in response to the outbreak.
12
The Seventh Circuit reversed as to the social
distancing mandate, but affirmed as to the converted
TRO mandates. (1a-28a). Without articulating an
actual legal framework, the appellate panel held that
the “objective reasonableness standard” applied, with
citation to Kingsley v. Hendrickson. (17a) As to the
social distancing mandate, the panel found that the
district court erred on three distinct grounds: (1) it
narrowly focused its analysis on social distancing,
exclusive of the other exhaustive measures
implemented; (2) it failed to give proper deference to
the Sheriff on housing matters, which involve jail
security concerns; and (3) it applied the wrong
preliminary injunction standard. (15a)
As to the terms converted from the TRO, the panel
noted that the district court “did not revisit its
analysis” in the preliminary injunction order.
Therefore, the panel looked to the district court’s
reasoning in the TRO order, issued three weeks
earlier. (24a) The panel did not analyze whether the
Sheriff’s
conduct
was
unconstitutional
or
unreasonable. Rather, its discussion focused only on
the relief granted by the court; that is, whether the
mandates imposed by the court were consistent with
CDC Guidelines. (25a-26a) Finally, the panel
concluded that while the district court again failed to
defer to the Sheriff’s interests in managing the
complexities of the Jail, as with its social distancing
analysis, it was “less troubled” here because the
converted TRO terms did not involve safety and
security concerns. Thus, it found no legal error. (26a)
13
REASONS FOR GRANTING THE PETITION
Forty years ago, this Court issued its opinion in
Bell v. Wolfish, 441 U.S. 520. In that case, the Court
articulated the standard for evaluating conditions of
confinement claims brought by pretrial detainees:
“[I]f a particular condition or restriction of
pretrial detention is reasonably related to a
legitimate governmental objective, it does not,
without more, amount to ‘punishment.’
Conversely, if a restriction or condition is not
reasonably related to a legitimate goal—if it is
arbitrary or purposeless—a court permissibly
may infer that the purpose of the governmental
action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees.” Id. at 539.
In the years since, the appellate circuits have
strayed from this standard, creating an entrenched
split among the circuits. The most recent departure
followed from this Court’s opinion in Kingsley v.
Hendrickson, which extended Bell’s holding to
formally establish a standard for analyzing detainees’
excessive force claims. Yet several circuits have
misconstrued the holding in Kingsley, viewing it as a
new or modified standard for evaluating jail
conditions cases, abrogating Bell. Their clumsy efforts
to force jail conditions claims into the excessive force
framework of Kingsley has caused unnecessary
confusion and undermined the fundamental
principles of Bell. This Court must grant certiorari to
reaffirm the vitality of Bell and restore consistency in
these important analyses.
14
In Bell, a putative class of detainees filed suit
challenging the conditions of their confinement at the
federal Metropolitan Correctional Center, asserting a
variety of complaints. Among them was the contention
that their assignment to two-person cells violated
their constitutional rights to privacy under the due
process clause. Id. at 530.
The issue in the case required the Court to
establish the standard to be applied to claims
challenging “the constitutionality of conditions or
restrictions of pretrial detention,” which only
implicate due process rights. Id. at 535. In such cases,
“the proper inquiry is whether those conditions
amount to punishment of the detainee,” because
detainees “may not be punished prior to an
adjudication of guilt in accordance with due process of
law.” Id. There is no dispute that the government may
constitutionally detain these individuals after their
arraignments and bail hearings, and may subject
them to certain restrictions and conditions while in
detention.
However, not every condition imposed during
pretrial detention amounts to unconstitutional
“punishment.” Only those conditions and restrictions
that rise to the level of punishment violate the
constitution. Id. at 536-37. Some loss of freedom,
privilege, and comfort is expected. It is only when
those deprivations become punitive in nature do they
violate a detainee’s due process rights. Id. at 537.
Punishment may be shown by a jail official’s
expressed intent to punish. Id. at 538. Absent that, the
determination turns on “‘whether an alternative
15
purpose to which [the restriction] may rationally be
connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose
assigned [to it].’” Id., quoting Kennedy v. MendozaMartinez, 372 U.S. 144, 168-69 (1963); see also id. at
539 n.20 (unduly harsh conditions cannot be imposed
to accomplish an objective where other less harsh
methods could be implemented).
Thus, “if a particular condition or restriction of
pretrial detention is reasonably related to a legitimate
governmental objective, it does not, without more,
amount to ‘punishment.’” Id. at 539. “Conversely, if a
restriction or condition is not reasonably related to a
legitimate goal—if it is arbitrary or purposeless—a
court may permissibly infer that the purpose of the
governmental action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees.” Id. Importantly, “[c]ourts must be mindful
that these inquiries spring from constitutional
requirements and that judicial answers to them must
reflect that fact rather than a court’s idea of how best
to operate a detention facility.” Id.
When the Court issued its opinion in Kingsley v.
Hendrickson in 2015, it extended these principles to
excessive force claims brought by pretrial detainees.
Given the Court’s recognition that pretrial detainees
are protected under the due process clause, and not
the cruel and unusual punishment clause of the
Eighth Amendment, they deserve different treatment.
But until Kingsley, it had not articulated the standard
to be applied to review excessive force claims under
the Fourteenth Amendment. Several of the appellate
circuits began grafting the Eighth Amendment
16
analysis on to pretrial detainees’ claims based on a
passing reference in Bell that detainees were entitled
to “at least” as much protection as convicted prisoners.
See, e.g., Miranda v. County of Lake, 900 F.3d 335,
350 (7th Cir. 2018); Bell, 411 U.S. at 545. Thus,
several circuits required detainees to prove that the
officer had the subjective intent to “maliciously and
sadistically” use excessive force against the pretrial
detainee. Farmer v. Brennan, 511 U.S. 825, 835-36
(1994). But in Kingsley, this Court clarified that such
claims brought by detainees under the Fourteenth
Amendment must be viewed in accordance with the
principles in Bell; i.e., whether the use of force
objectively amounted to punishment. 135 S. Ct. at
2472.
The simple mechanics of an excessive force claim
led to a different articulation of the due process
standard from the one set forth in Bell. In Bell, the
question is whether the conditions imposed were
unrelated to any legitimate nonpunitive purpose or
excessive in relation to that purpose. In Kingsley, the
question is whether a reasonable officer in the same
situation armed with the same knowledge as the
accused officer would have applied the same degree of
force under the circumstances. Both standards
ultimately reflect the same inquiry—whether the
detainee has been subject to unconstitutional
punishment—but each is expressed differently based
on the governmental actions being analyzed. The test
set forth in Kingsley is: (1) whether the use of force
was deliberate, i.e., purposeful, knowing, or reckless,
rather than negligent; and (2) whether the amount of
force used is, constitutionally speaking, “excessive,” or
objectively unreasonable under the circumstances.
17
Kingsley, 135 S. Ct. at 2472-73. Kingsley explains how
the principles set forth in Bell are applied in a specific
context, but it does not change the standard set forth
in Bell for evaluating detainees’ conditions of
confinement claims.
Yet that is precisely how at least three circuit
courts of appeal—the Second, Seventh, and Ninth
Circuits—have applied Kingsley over the past five
years. Among them, they cannot agree on a single
formulation of a post-Kingsley standard, which is to be
expected given the difficulty of fitting a square peg
into a round hole. These courts have not only created
confusion among and within the circuits, but have
deviated fundamentally from the teachings of Bell by
minimizing the considerable deference given to jail
administrators in operating their facilities. Other
circuits have faithfully applied the Bell standard to
pretrial detainees’ conditions of confinement claims.
Still others have confined Kingsley to the excessive
force context, but continue to apply the Eighth
Amendment’s subjective deliberate indifference test
to detainees’ conditions of confinement claims. This
Court must grant certiorari to address the wide
disparity that has developed among the circuits,
particularly since Kingsley.
18
I. The Circuit Courts Of Appeal Are Deeply
Divided Over The Standard Applied To
Alleged Due Process Violations Brought By
Pretrial
Detainees
Challenging
The
Conditions Of Confinement.
The circuit courts of appeal have become deeply
divided over the analytical framework to be applied to
conditions of confinement claims brought by pretrial
detainees under 42 U.S.C. § 1983. While Bell v.
Wolfish articulated the proper standard forty years
ago, a majority of the circuits courts of appeal have
since diverged from Bell, creating a patchwork of
different standards, some of which undermine the
fundamental principles on which Bell stands. Since
this Court’s opinion in Kingsley v. Hendrickson in
2015, the divide has only grown.
Four circuits—the Third, Fourth, Eighth, and D.C.
Circuits—faithfully apply Bell’s objective standard,
analyzing whether the challenged conditions amount
to impermissible punishment because they are not
related to a legitimate nonpunitive governmental
purpose. See Hope v. Warden York Cty. Prison, 972
F.3d 310, 326 (3d Dist. 2020) (acknowledging Kingsley
but continuing to apply traditional Bell analysis to
detainee’s jail conditions claims); Dilworth v. Adams,
841 F.3d 246, 252 (4th Cir. 2016) (same); Stearns v.
Inmate Services Corp., 957 F.3d 902, 908-09 (8th Cir.
2020) (declining to address the impact of Kingsley and
continuing to apply traditional Bell analysis to
detainee’s jail conditions claim); O.M.G. v. Wolf, 2020
U.S. Dist. LEXIS 129300, *37-38 (D.D.C. 2020)
(acknowledging Kingsley but continuing to apply
19
traditional Bell analysis to detainee’s jail conditions
claims).
Four circuits—the First, Sixth, Tenth, and
Eleventh Circuits—apply the subjective deliberate
indifference standard first articulated in Farmer, 511
U.S. at 835. The standard, which is applicable to
Eighth Amendment claims brought by convicted
prisoners, analyzes whether the complained-of
conditions reflect a conscious disregard of a known
risk of serious harm, rising to the level of criminal
recklessness. See Miranda-Rivera v. Toledo-Davila,
813 F.3d 64, 74 (1st Cir. 2016) (recognizing that
Kingsley applies to pretrial detainee’s excessive force
claim, but applying Farmer standard to jail conditions
claim); Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th
Cir. 2018) (recognizing that Kingsley “calls into
serious doubt” whether a detainee still must prove the
subjective prong, but nevertheless applying the
Farmer Eighth Amendment standard); Strain v.
Regalado, 977 F.3d 984, 990-91 (10th Cir. 2020)
(confining Kingsley to excessive force claims and
declining to extend it to jail conditions claims); Nam
Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272,
1279 n.2 (11th Cir. 2017) (same).
The Fifth Circuit has developed a unique hybrid
standard in which it applies Bell’s objective
punishment standard to detainees’ attacks on
“general conditions, practices, rules, or restrictions of
pretrial confinement,” but applies Farmer’s subjective
deliberate indifference standard where the claim
challenges “episodic acts or omissions.” See Hare v.
City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996);
Alderson v. Concordia Parish Corr. Facility, 848 F.3d
20
415, 419 n.4 (5th Cir. 2017) (declining to revisit the
Hare standard in light of Kingsley).
The remaining three circuits—the Second,
Seventh, and Ninth Circuits—have construed
Kingsley as modifying or abrogating the Bell standard
for pretrial detainees’ jail conditions claims. And even
among these circuits, they cannot agree on a single
formulation of a post-Kingsley standard.
•
Darnell v. Piniero, 849 F.3d 17, 35 (2d Cir.
2016) (after Kingsley, a pretrial detainee must
“prove that the defendant-official acted
intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to
mitigate the risk that the condition posed to the
pretrial detainee even though the defendantofficial knew, or should have known, that the
condition posed an excessive risk to health or
safety. In other words, the ‘subjective prong’ (or
‘mens rea prong’) of a deliberate indifference
claim is defined objectively”);
•
Castro v. City of Los Angeles, 833 F.3d 1060,
1071 (9th Cir. 2016) (after Kingsley, a pretrial
detainee must prove: “(1) the defendant made
an intentional decision with respect to the
conditions under which the plaintiff was
confined; (2) those conditions put the plaintiff
at substantial risk of suffering serious harm; (3)
the defendant did not take reasonable available
measures to abate the risk, even though a
reasonable officer in the circumstances would
have appreciated the high degree of risk
involved—making the consequences of the
21
defendant’s conduct obvious; and (4) by not
taking such measures, the defendant caused
the plaintiff’s injuries”; detainees must prove
“something akin to reckless disregard”); and
•
Miranda v. County of Lake, 900 F.3d 335, 353
(7th Cir. 2018) (announcing that Kingsley
extends to claims of inadequate medical care,
but struggling to articulate a workable
standard); Hardeman v. Curran, 933 F.3d 816,
823 (7th Cir. 2019) (same, with respect to
conditions of confinement claims); McCann v.
Ogle, 909 F.3d 881, 886 (7th Cir. 2018) (states
the post-Kingsley standard as: (1) whether the
defendants acted purposefully, knowingly, or
perhaps even recklessly when they considered
the consequences of their handling of the
plaintiff’s case; and (2) whether the challenged
conduct was objectively reasonable, considering
the totality of facts and circumstances faced by
the defendant without regard to the
defendant’s subjective belief that the response
was reasonable, but failing to discuss Bell).
If Kingsley has changed anything, it has finally
articulated what has long been implied in the Bell
analysis. While the standard is described as objective,
it necessarily incorporates a state of mind component,
such that the jail official’s actions must rise to the
level of recklessness. This is consistent with the
fundamental
principles
of
entity
liability.
“‘[M]unicipal liability under § 1983 attaches where–
and only where–a deliberate choice to follow a course
of action is made from among various alternatives’ by
city policymakers.” City of Canton v. Harris, 489 U.S.
22
378, 389 (1989), quoting Pembaur v. Cincinnati, 475
U.S. 469, 483-84 (1986). And that decision must reflect
a “deliberate indifference” to a detainee’s rights for
there to be any liability. Id. at 392. It has since been
viewed as objective deliberate indifference, measured
against a standard of recklessness. Farmer, 511 U.S.
at 836-37.
But the efforts of the Second, Seventh, and Ninth
Circuits to apply the Kingsley framework to jail
conditions claims are misguided and have caused
confusion among jail officials and the courts. The
Kingsley framework—focusing on (1) whether an
individual officer’s use of force was intentional or
reckless rather than negligent, and (2) the objective
proportionality of the response—is incongruous with
a conditions of confinement claim. These circuits have
concluded that the “logic” of Kingsley extends to jail
conditions claims, but in fact, the opposite is true:
Kingsley is itself an extension of Bell, as applied to the
unique circumstances of an excessive force claim. The
ultimate question underlying Bell and Kingsley may
be the same as to prohibiting punishment, but the
path to answering that question is not: whether a
detainee has been subjected to punishment
fundamentally depends on the mechanics of the claim.
There are other ways in which the mechanics of an
excessive force claim differ from that of a jail
conditions case, warranting a different analysis. For
example, an Eighth Amendment jail conditions case is
subject to a deliberate indifference standard, which
examines whether the jail official made a conscious
decision to disregard an excessive risk of harm of
which it is subjectively aware. Farmer, 511 U.S. at
23
837. However, in an Eighth Amendment excessive
force analysis, the inquiry focuses on whether an
individual officer applied force “‘maliciously and
sadistically for the very purpose of causing harm,’” or
with “‘a knowing willingness that [harm] occur.’” Id.
at 835-36, quoting Hudson v. McMillian, 503 U.S. 1, 6
(1992). This heightened standard reflects the realities
of evaluating the amount of force used in the moment,
which requires consideration of the fact that decisions
are made “‘in haste, under pressure, and frequently
without the luxury of a second chance.’” Id.
So too must a Fourteenth Amendment excessive
force claim reflect a different reality of circumstance
than a Fourteenth Amendment jail conditions claim.
Most concerning is that applying a Kingsley standard
to a jail conditions case will necessarily collapse the
inquiry and effectively impose strict liability on the
officials. As to the first prong, focusing on
intentionality, a jail administrator’s decision to
implement one set of policies over alternative ones is
necessarily an intentional, knowing decision. That
prong will always be satisfied. As to the second prong,
the jail administrator is making that decision
knowing that there is a risk of harm, which is the
reason the challenged policies are being implemented.
In essence, the risk of harm itself is being used to
establish a culpable state of mind, which turns the
entire inquiry about “reasonableness” on its head,
particularly if the risk is not eliminated, as in the case
below. (See 89a-104a)
This Court should grant certiorari to resolve the
circuit split about whether Kingsley abrogated or
modified the Bell standard applied to pretrial
24
detainee’s conditions of confinement claims. The
Court should ensure uniformity among the circuits
and provide jail officials guidance in operating their
facilities.
II.
This Circuit Split Is Particularly Evident
In Cases Analyzing Challenges to COVID19 Protocols Under The Fourteenth
Amendment.
As but one example, the courts’ confusion on the
proper standard for Fourteenth Amendment
challenges to conditions of confinement is reflected in
the widely different treatment given to cases
challenging COVID-19 protocols in detention
facilities. Not only do the outcomes vary from
jurisdiction to jurisdiction—and in some cases, within
the same circuit—they also reveal a departure from
fundamental principles set forth in Bell, virtually
eliminating the considerable deference given to jail
administrators to manage the complexities of their
facilities. As a result, jail administrators are dealing
with unprecedented court interference with jail
operations while also managing an unprecedented
global pandemic behind the jail walls.
First Circuit: Intra-circuit split. See Gomes v.
U.S. Dep’t Homeland Sec., 2020 U.S. Dist. LEXIS
115070, *6-8 (D.N.H. July 1, 2020) (acknowledging the
continuing uncertainty since Kingsley and collecting
cases reflecting an intra-circuit split). Compare Baez
v. Moniz, 460 F. Supp. 3d 78 (D. Mass., May 18, 2020)
(concluding pretrial detainees had to show subjective
deliberate indifference) with Yanes v. Martin, 464 F.
Supp. 3d 467 (D.R.I., June 2, 2020) (concluding that
25
Kingsley did away with the need for civil detainees to
show the “subjective state of mind that is a hallmark
of ‘deliberate indifference’ or ‘reckless disregard’
formulations’”).
Second Circuit: Applying modified Kingsley
standard. Compare Fernandez-Rodriguez v. LiconVitale, 2020 U.S. Dist. LEXIS 116749, *45-47, 56
n.199 (S.D.N.Y July 2, 2020) (citing Darnell, and while
not deciding the proper standard, concludes plaintiffs
would fail under either standard) with Jones v. Wolf,
2020 U.S. Dist. LEXIS 58368, *8-18, 33-34 (W.D.N.Y.)
(applying Darnell and applying an objective deliberate
indifference standard)
Third Circuit: Applying Bell standard. Hope v.
Warden York Cty. Prison, 972 F.3d 310, 326 (3d Cir.
2020) (applying Bell standard to pretrial detainee’s
conditions claim: court must consider the totality of
circumstances and assess whether conditions are (1)
rationally related to their legitimate purpose or (2)
excessive in relation to that purpose)
Fourth Circuit: Intra-circuit split. Compare
Coreas v. Bounds, 451 F. Supp. 3d 407, 421-23 (D. Md.
April 3, 2020) (applies deliberate indifference to
conditions and inadequate medical care claims) with
Baxley v. Jividen, 2020 U.S. Dist. LEXIS 239699, *4749 (S.D.W. Va. Dec. 21, 2020) (discusses Kingsley and
suggesting it may be time to reevaluate the standard,
but ultimately applies deliberate indifference
standard to medical care claims) and Aslanturk v.
Hott, 459 F. Supp. 3d 681, 695-96 (E.D. Va. May 8,
2020) (applies Bell standard to jail conditions claim)
26
Fifth Circuit: Applying Bell standard. Hernandez
v. Mora, 2020 U.S. Dist. LEXIS 106184, *22-23 (N.D.
Tex. June 15, 2020); Barrera v. Wolf, 455 F. Supp. 3d
330, 338- (S.D. Tex. April 17, 2020)
Sixth Circuit. Applying objective standard.
Cameron v. Bouchard, 815 Fed. Appx. 978, 984-85
(6th Cir. 2020) (declining to decide whether Kingsley
or deliberate indifference standard applies, but claim
fails under either standard)
Seventh Circuit: Applying modified Kingsley
standard. Mays v. Dart, 947 F.3d 810 (7th Cir. 2020)
Ninth Circuit: Applying modified Kingsley
standard. Roman v. Wolf, 2020 U.S. App. LEXIS
30510, *15 (9th Cir. 2020)
D.C. Circuit: Intra-circuit split. Compare Banks
v. Booth, 2020 U.S. Dist. LEXIS 107762, *16-18
(D.D.C. June 18, 2020) (applying Kingsley standard in
absence of guidance by D.C. Circuit) with O.M.G. v.
Wolf, 2020 U.S. Dist. LEXIS 129300, *37-38 (D.D.C.
July 22, 2020) (applying Bell standard)
III.
The Seventh Circuit’s Approach Falls On
The Wrong Side Of The Split And This
Case Is An Ideal Vehicle To Address The
Question.
The Seventh Circuit’s decision in Mays v. Dart is a
study in contradiction that illustrates perfectly the
problem with grafting the Kingsley excessive force
framework onto a conditions of confinement claim. By
trying to view a jail conditions claim from the lens of
an excessive force claim, the panel asked the wrong
27
question in evaluating the constitutionality of the
Sheriff’s conduct. Its approach runs contrary to the
fundamental principles set out in Bell, which, if
applied, would have produced a different result as to
the converted TRO claims. First, the panel failed to
focus its inquiry on the primary question of whether
any detainees were subjected to impermissible
punishment as a result of the COVID-19 protocols
implemented at the Jail. Second, contrary to the
principles articulated in Bell, the panel failed to give
proper deference to the Sheriff’s judgment respecting
other complexities of jail operations—magnified
immeasurably when dealing with a global pandemic—
not just those affecting security.
Under Bell, the appellate panel should have
analyzed whether the detainees were subjected to any
unconstitutional punishment as a result of the
COVID-19 protocols implemented at the Jail. That is,
was the Sheriff’s comprehensive coronavirus response
“reasonably related to a legitimate governmental
objective” and proportionate relative to that objective,
or was it “arbitrary or purposeless,” permitting the
court to infer that their purpose was to inflict
punishment? Bell, 441 U.S. at 539. In applying this
standard, courts must be “mindful that these inquiries
spring from constitutional requirements and that
judicial answers to them must reflect that fact rather
than a court’s idea of how best to operate a detention
facility.” Id.
While jail security is an important objective in
operating a jail, it is far from the only consideration
that justifies the need for certain conditions without
raising the inference that they were intended as
28
punishment. Id. at 540. The Court has long
acknowledged the “problems that arise in the day-today operation of a corrections facility [that] are not
susceptible of easy solutions,” without the need to
exhaustively “detail the precise extent of th[ose]
legitimate governmental interests.” Id. at 540, 547.
Jail administrators are responsible for resolving
complex issues related to many different aspects of jail
operations and internal order, which “require
expertise, comprehensive planning, and the
commitment of resources, all of which are peculiarly
within the province of the legislative and executive
branches.” And this is particularly true in the context
of coronavirus response strategies: the Constitution
empowers those “politically accountable officials of the
States” to make health and safety decisions on behalf
of their constituents, and not “subject [them] to
second-guessing by an ‘unelected federal judiciary,’
which lacks the background, competence, and
expertise to assess public health and is not
accountable to the people.’” S. Bay United Pentecostal
Church v. Newsom, 140 S. Ct. 1613, 1613-14 (2020)
(Roberts, C.J., concurring).
Here, had the appellate panel applied Bell as
intended, it would have framed its analysis in terms
of whether the comprehensive measures implemented
in response to the threat of a coronavirus outbreak
subjected any detainees to unconstitutional
punishment. That is, were the COVID-19 protocols
related to a legitimate nonpunitive governmental
objective, or were they arbitrary and purposeless,
implying an intent to punish the detainees?
29
Under the proper framework, the panel could not
have avoided the conclusion that the extensive
protocols implemented represented a balancing of
different options—all of which were intended to
protect the detainees from the spread of a highlycontagious novel coronavirus, while operating within
a complex environment with limited resources—not to
impose punishment. The panel recognized the
Sheriff’s efforts in consulting with local, state, and
federal public health officials two months before the
first case of coronavirus entered the Jail, making
preparations long before an outbreak occurred. (7a)
He created quarantine and isolation housing for
detainees who may become infected or exposed,
enacted enhanced sanitization protocols, sought to
access the national strategic stockpile of PPE during
a global pandemic, and lobbied to have the Jail named
as one of the first sites in the country where the
coronavirus rapid test would be administered. (7a)
The panel recited the Sheriff’s “substantial efforts to
increase social distancing, such as opening shuttered
divisions of the Jail, creating new single-cell housing,
and decreasing the capacity of dormitories.” (18a) It
also acknowledged the “extensive other measures”
taken to prevent the spread of the virus throughout
the Jail. (18a)
The Sheriff’s comprehensive approach to
containing the coronavirus was anything but
“arbitrary or purposeless,” revealing not a hint of an
intent to punish detainees. Bell, 411 U.S. at 539.
Indeed, the district court itself lauded the Sheriff’s
“significant, and impressive, effort to safeguard
detained persons in his custody from infection by
coronavirus” and expressed that “the Sheriff and his
30
staff have acted in good faith, with the goal of
protecting the people placed in his custody.” (93a) The
court explicitly remarked that “the Sheriff has been
anything but deliberately indifferent to the risk of
harm to pretrial detainees from coronavirus.” (93a)
Taken together, these comments belie the very
suggestion that the Sheriff acted recklessly or
unconstitutionally in devising and implementing the
COVID-19 protocols at the Jail. See City of Canton,
489 U.S. at 389; Farmer, 511 U.S. at 836-37.
While the appellate panel faulted the district court
for not considering the entirety of the Sheriff’s
coronavirus response efforts before imposing the
social distancing requirement, “especially in a case
involving a systemic claim like here,” it curiously did
not apply that same logic when analyzing the
remaining terms of the injunction. (17a) The panel
correctly found that the scope of the district court’s
review focused too narrowly on social distancing
efforts alone, rather than considering that in the
context of the dozens of other measures implemented.
But when it came to the four converted TRO
mandates, the panel found the Sheriff’s actions were
constitutionally inadequate—even though they too
were but a small part of the same set of protocols. And
the claim remained a systemic one that required the
panel to analyze all of the measures taken by the
Sheriff in response to the risk of an outbreak. The
scope of the Sheriff’s comprehensive response did not
change from the time the TRO was entered to the time
the preliminary injunction issued. The panel’s view of
that factor also should not have changed. The Sheriff
may satisfy his constitutional obligations without
31
entirely eradicating the risk of harm. Farmer, 511
U.S. at 844.
The appellate panel also erred by failing to analyze
the constitutionality of the Sheriff’s conduct in
response to this systemic risk as Bell requires: that is,
was the decision to implement some COVID-19
protocols versus others so arbitrary and purposeless
that it rose to the level of unconstitutional
punishment? Instead, it focused its review on the
relief granted: were the terms imposed by the district
court consistent with the CDC Guidelines and,
essentially, did the court “split the win”?1
The converted TRO mandates affirmatively
ordered the Sheriff to: establish “a policy requiring
prompt coronavirus testing” of certain detainees
identified by the court, not required by the CDC
1 As the Sheriff argued on appeal (Appellate Br. 38-41), it was
error for the district court to convert the TRO terms when it was
no longer litigated at the preliminary injunction stage, and the
appellate court erred in relying on that analysis, written three
weeks earlier. See 24a (“When the district court issued the
preliminary injunction, it did not revisit its analysis on any of
these measures. Because the discussion pertaining to these
measures resides in the temporary restraining order, we turn
there for our analysis.”). But that does not preclude review by
this Court, where the question concerns whether the appellate
panel applied the proper legal standard and the record contains
the facts necessary to evaluate the application of the proper
standard. See Gonzales v. O Centro Espirita Beneficiente Uniao
do Vegetal, 546 U.S. 418, 429 (2006); Hope v. Warden York Cty.
Prison, 972 F.3d 310 (3d Cir. 2020) (“The District Court turned
due process on its head when it required the party against whom
it ordered injunctive relief to prove why such relief should not be
continued.”).
32
(164a); provide facemasks to detainees who have been
“exposed to a symptomatic detainee (even if not
coronavirus-positive), which was contrary to CDC
recommendations at the time (161a); enforce social
distancing during intake, including “suspending the
use of bullpens,” an issue raised by the court, not the
parties (157a); provide “sufficient amounts” of soap or
hand sanitizer and sanitation supplies and require
“monitoring and supervision to ensure that it takes
place.” (158a-160a)
As the Sheriff argued in response to the TRO
petition, and supported with twelve affidavits that the
district court scarcely considered, there were
legitimate nonpunitive reasons for not undertaking
these measures. The Sheriff’s decision on which
measures to implement, or not, involve complex
operational decisions balancing resources, safety,
priority, and the Sheriff’s authority to act. See
Newsom, 140 S. Ct. at 1613-14. All of those decisions
were made in consultation with local, state, and
federal public health officials and subject matter
experts.
First, the Sheriff had no authority to develop
policies for administering coronavirus tests. Those
were medical decisions to be made by Cermak staff,
which was in the midst of a global testing supply
shortage at the time the TRO was entered. (164a)
Second, there also was a global shortage of PPE.
Consequently, the CDC specifically advised against
giving facemasks to anyone other than medical staff,
symptomatic detainees, and correctional officers or
others who could bring the virus in from the
community, as the district court expressly recognized.
33
(161a) The Sheriff prioritized the limited number of
supplies in accordance with CDC guidelines. Frankly,
the district court’s order contradicted CDC guidelines
at the time and forced the Sheriff to reallocate these
limited resources. Third, the number of detainees
entering the Jail dropped significantly because of the
courts’ and prosecutors’ decisions to defer remand,
which allowed for sufficient distancing and reduced
the need for any “special enforcement” of social
distancing in these areas. (92a) Moreover, the Sheriff
had already created screening protocols at intake and
procedures to quarantine all new detainees for up to
14 days before entering the general population, which
offered additional protection against the spread of the
virus. Finally, the Sheriff exponentially increased the
amount of soap and cleaning supplies distributed. No
detailed logs were kept about daily distribution of
supplies at that time because, in the Sheriff’s
judgment, at those early stages just days after the
first case of coronavirus was detected, staff resources
were better spent on other frontline coronavirusrelated efforts.
Because the appellate panel did not apply the
proper Bell standard, it failed to properly analyze the
Sheriff’s conduct, or afford it the proper deference.
Instead, the panel deferred to the district court’s
judgment about the measures it thought best to
implement, in stark contrast to Bell’s teachings. The
panel also concluded that it was “less troubled” with
the district court’s lack of deference to the Sheriff’s
experience and authority in implementing other
COVID-19 protocols, and “did not find legal error”
with these aspects of the mandatory injunction,
because they did not strictly involve jail security
34
issues. (26a) But it was not the district court’s place to
make judgment calls about jail best practices. Nor
does the appellate panel have ability to trivialize such
interference.
The “wide range of ‘judgment calls’ that meet
constitutional and statutory requirements are
confided to officials outside of the Judicial Branch of
Government.” Bell, 411 U.S. at 562; Newsom, 140 S.
Ct. at 1613-14. This Court has long recognized and
respected that jail administrators should be “accorded
wide-ranging deference in the adoption and execution
of policies and practices that in their judgment are
needed to preserve internal order and discipline and
to maintain institutional security.” Id. at 548 n.30.
That applies to matters affecting jail security, but also
to the myriad other complex issues affecting jail
operations. Resolving those matters may justify
imposing certain conditions without an inference of
punishment arising. Id.
“Judicial deference is accorded not merely because
the [jail] administrator ordinarily will…have a better
grasp of his domain than the reviewing judge, but also
because the operation of our correctional facilities is
peculiarly the province of the Legislative and
Executive Branches of our Government, not the
Judicial.” Id. at 548. For those reasons, “courts are ill
equipped to deal with the increasingly urgent
problems of prison administration and reform.” Id. at
548 n.30. “In the absence of substantial evidence in
the record to indicate that the officials have
exaggerated their response to these considerations,
courts should ordinarily defer to their expert
judgment in such matters.” Id. at 547-48, quoting Pell
35
v. Procunier, 417 U.S. 817, 827 (1974) (emphasis
added).
As in Bell, the district court—and by extension, the
appellate panel—“simply disagreed with the
judgment” made by the Sheriff about the operational
considerations involved or the means required to
further those interests. Id. at 554. But such “unguided
substitution of judicial judgment for that of the expert
prison administrators on matters such as this is
inappropriate.” Id. While the district court’s preferred
protocols, blessed by the appellate court, “may be a
reasonable way of coping with the problems of
security, order, and sanitation,” it is “not…the only
constitutionally permissible approach to these
problems.” Id.
That is not to say that courts must take a “handsoff” approach to its evaluation of jail administration.
Id. at 562. But courts may not “trench[ ] too cavalierly
into areas that are properly the concern” of jail
officials and become “enmeshed in the minutiae of
prison operations.” Id. 554, 562. When analyzing the
constitutionality of a jail administrator’s conduct
relative to jail conditions, “the first question to be
answered is not whose plan is best, but in what branch
of the Government is lodged the authority to initially
devise the plan.” Id. Of course, constitutional rights
must be “scrupulously observed,” but “the inquiry of
federal courts into prison management must be
limited to the issue of whether a particular system
violates any prohibition of the Constitution.” Id.
Had the court applied the Bell standard when
analyzing the plaintiffs’ challenge to the COVID-19
36
protocols, the outcome here would have been different.
This error is consequence of a lack of clarity on the
appropriate standard to apply to pretrial detainees’
challenges to conditions of confinement since
Kingsley. This error is being repeated in courts across
the country, as similar lawsuits are being filed in jails
and detention centers nationwide. The Court should
grant certiorari to reaffirm the legal framework set
forth in Bell and provide proper guidance to courts
and jail administrators going forward.
CONCLUSION
For these reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
GRETCHEN HARRIS SPERRY
Counsel of Record
ROBERT T. SHANNON
JAMES M. LYDON
Hinshaw & Culbertson
151 N. Franklin Street
Chicago, IL 60606
(312) 704-3521
gsperry@hinshawlaw.com
Counsel for Petitioner
Sheriff Thomas J. Dart
January 15, 2021
APPENDIX
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT, DATED SEPTEMBER 8, 2020
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 20-1792
ANTHONY MAYS, INDIVIDUALLY AND ON
BEHALF OF A CLASS OF SIMILARLY
SITUATED PERSONS, et al.,
Plaintiffs-Appellees,
v.
THOMAS J. DART, SHERIFF OF
COOK COUNTY, ILLINOIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 20-cv-2134 — Matthew F. Kennelly, Judge.
August 18, 2020, Argued
September 8, 2020, Decided
Before Sykes, Chief Judge, and Brennan and St. Eve,
Circuit Judges.
2a
Appendix A
St. Eve, Circuit Judge. Plaintiffs—a class of detainees
at the Cook County Jail—brought this action against Cook
County Sheriff Thomas Dart after the Jail reported an
outbreak of COVID-19, the disease caused by the novel
coronavirus that has sparked a global pandemic. Plaintiffs
contend that the Sheriff has violated their Fourteenth
Amendment Due Process rights by failing to provide them
with reasonably safe living conditions as the pandemic
rages. Plaintiffs seek various forms of relief, including
an injunction requiring the Sheriff to implement certain
procedures related to social distancing, sanitation,
diagnostic testing, and personal protective equipment
(“PPE”) to protect them from the virus for the duration
of the pandemic.
A fter a hearing, the district court g ranted a
temporary restraining order imposing several forms of
relief, including but not limited to, mandates requiring the
Sheriff to provide hand sanitizer and soap to all detainees
and face masks to detainees in quarantine. The district
court declined to order relief in several instances, though:
most notably for our decision today, the district court
rejected Plaintiffs’ request to prohibit double celling and
group housing arrangements to permit adequate social
distancing.
Plaintiffs subsequently moved for entr y of a
preliminary injunction, requesting an extension of the
relief the district court previously mandated in the
temporary restraining order and, among other things,
renewing their request for socially distanced housing.
After another hearing, the district court switched course
3a
Appendix A
from its prior ruling and granted the renewed social
distancing request, albeit with certain exceptions. The
district court also granted the request for an extension
of the relief included in the temporary restraining order.
The Sheriff appealed.
We conclude that, in the course of its analysis
regarding double celling and group housing, the district
court committed three distinct legal errors: the district
court failed to consider the Sheriff’s conduct in its
totality, failed to afford proper deference to the Sheriff’s
judgment in adopting policies necessary to ensure safety
and security, and cited an incorrect legal standard
when evaluating the likelihood that Plaintiffs’ claims
will succeed on their merits. Given these legal errors
in evaluating the likelihood of success on the merits of
Plaintiffs’ claims, we reverse the district court with
respect to the portion of the preliminary injunction
mandating socially distanced housing. Regarding the
remaining relief, however, the district court made detailed
factual findings, properly considered the Sheriff’s conduct
in its totality, and closely tailored the relief it ordered to
the guidelines promulgated by the Centers for Disease
Control and Prevention (“CDC”). We therefore affirm all
other aspects of the preliminary injunction.
I. Background
A. Factual Background
At present, COVID-19 requires no introduction:
the novel coronavirus causing this disease has spread
4a
Appendix A
around the world, resulting in an unprecedented global
pandemic that has disrupted every aspect of public life.
The virus, SARS-CoV-2, causes symptoms ranging from
fever to shortness of breath to loss of smell and can lead
to serious health effects—including damage to internal
organs and, in many cases, death. People over the age of
sixty-five and with certain preexisting health conditions
face a heightened risk of severe illness resulting from
COVID-19. The virus transmits rapidly from person to
person, primarily through respiratory droplets emitted
by coughing or sneezing that can travel multiple feet and
remain in the air for several hours, and also through
lingering particles on surfaces. People may transmit the
virus despite a lack of symptoms, making it difficult to
take necessary precautions.
Society has, though, taken many precautions to
attempt to curb the spread of COVID-19. Many states,
including Illinois, presently require wearing face
coverings in public spaces in order to slow the spread of
COVID-19. States have ramped up testing capacity and
contact tracing to identify those who have interacted with
persons who later tested positive for the virus. Illinois and
most other states implemented stay-at-home orders that
forced people to socially distance, limiting interpersonal
contacts and group activities: schools transitioned to
remote learning, restaurants and bars closed, and officials
largely cancelled public events.
The Cook County Jail is an enormous facility with
the population of a small town. The inherent nature of
the Jail presents unique challenges for combatting the
5a
Appendix A
spread of COVID-19: it is designed to accommodate large
and densely-packed populations. Many detainees reside in
“dormitory” units, meaning hundreds of detainees sleep
in a single room on closely-spaced bunk beds, and there
are many common spaces where detainees are in close
proximity to one another. On April 8, 2020, The New York
Times reported that, at that time, the Jail was the largest
known-source of coronavirus infections in the United
States. Timothy Williams and Danielle Ivory, Chicago’s
Jail Is Top U.S. Hot Spot as Virus Spreads Behind
Bars (April 8, 2020) N.Y. Times, https://www.ny-times.
com/2020/04/08/us/coronavirus-cook-county-jail-chi-cago.
html (last visited August 27, 2020). When Plaintiffs filed
their motion for a preliminary injunction, on April 14, 541
detainees and Jail staff had tested positive for COVID-19.
By April 23, only a few days before the district court
issued the preliminary injunction that is the subject of this
appeal, six detained persons had died from complications.
On March 23, the Center for Disease Control issued
Interim Guidance on Management of Coronavirus
Disease 2019 (COVID-19) in Correctional and Detention
Facilities (“CDC Guidelines”). The document “is intended
to provide guiding principles for healthcare and nonhealthcare administrations of correctional and detention
facilities” to “help reduce the risk of transmission and
severe disease from COVID-19” in light of the unique
challenges correctional and detention facilities present.
The Guidelines recommend various measures, including
making available sufficient hygiene and cleaning supplies,
frequently cleaning and disinfecting high-touch surfaces
and objects, and implementing social distancing strategies
6a
Appendix A
where feasible, among many others. The Guidelines
note, in bold font, that the “guidance may need to be
adapted based on individual facilities’ physical space,
staffing, population, operations, and other resources and
conditions.” Additionally, in the section recommending
the implementation of social distancing in jails, the CDC’s
guidance notes “[s]trategies will need to be tailored to
the individual space in the facility and the needs of the
population and staff.”
The Cook County Sheriff, who is responsible for
operating the Jail, took numerous proactive measures
to prevent the spread of COVID-19. As early as January
24, Roland Lankah, the Sheriff’s in-house Environmental
Health Specialist and epidemiologist, began coordinating
with the Cook County Health Infection Control Department
to develop a plan for an outbreak. That plan involved
increasing disinfection and sanitization, devising protocols
to screen detainees for symptoms, and moving infected
detainees to separate housing. Upon Governor Pritzker’s
declaration of Illinois as a disaster area on March 9, the
Sheriff set up a space for new detainees to quarantine
for seven to fourteen days before entering the general
population. By mid-March, First Assistant Executive
Director Michael Miller was working to open three closed
divisions of the Jail to create more single-cell units and
reduce density. The Sheriff also coordinated with Senator
Durbin’s office, the Federal Emergency Management
Agency, and Governor Pritzker’s office to receive priority
access to the national stockpile of PPE in Illinois. The
Sheriff engaged various consultants, including a former
CDC Director, to improve sanitation policies, policies
7a
Appendix A
relating to medical screening, and use of PPE. In
coordination with other stakeholders in the Cook County
criminal justice system, the Sheriff undertook efforts to
reduce the Jail population through securing release or
electronic monitoring for over 1,200 detainees. And, on
April 1, the Sheriff’s Office contacted local authorities
to obtain approval to administer Abbott Laboratories’
rapid test at the Jail. Cermak Health Services, a division
of the Cook County Health and Hospital Systems, began
administering these tests soon thereafter.
B. Procedural Background
On April 3, Anthony Mays and Kenneth Foster, two
detainees at the Cook County Jail, sued Cook County
Sheriff Thomas Dart on behalf of “all people who are
currently or who will in the future be housed in the Cook
County Jail for the duration of the COVID-19 pandemic.”
The class includes two subclasses: Subclass A, which
consists of all people who are at an elevated risk of
complications from COVID-19 due to age or an underlying
medical condition, and Subclass B, which consists of all
people housed on a tier where someone has tested positive
for the virus. They assert violations of their rights under
the Fourteenth Amendment to reasonably safe living
conditions, bringing claims under 42 U.S.C. § 1983 and
for writs of habeas corpus under 28 U.S.C. § 2241.
1.
Temporary Restraining Order
Plaintiffs moved for a temporary restraining order,
requesting that the district court order the Sheriff to
8a
Appendix A
enact multiple measures designed to prevent the spread
of COVID-19. On April 9, after conducting a hearing via
telephone and reviewing numerous affidavits Plaintiffs
submitted, the district court issued a temporary
restraining order, though one considerably narrower than
the order Plaintiffs requested. This temporary restraining
order compelled the Sheriff to do the following:
• To establish “a policy requiring prompt coronavirus
testing of detainees who exhibit sy mptoms
consistent with coronavirus disease as well as,
at medically appropriate times and to the extent
feasible based on the acquisition of sufficient testing
materials, detainees who have been exposed to
others who have exhibited those symptoms or have
tested positive for coronavirus.”
• To enforce “social distancing during the new
detainee intake process, including suspending the
use of bullpens to hold new detainees awaiting
intake.”
• To provide “soap and/or hand sanitizer to all
detainees in quantities sufficient to permit them
to frequently clean their hands” and “adequate
sanitation supplies to enable all staff and detainees
to regularly sanitize surfaces and objects on which
the virus could be present, including in all areas
occupied or frequented by more than one person
(such as two-person cells, as well as bathrooms and
showers).”
9a
Appendix A
• To establish “a policy requiring sanitization between
all uses of frequently touched surfaces and objects
as well as monitoring and supervision to ensure that
such sanitization takes place regularly.”
• To “provide facemasks to all detainees who are
quarantined—i.e., those who have been exposed
to a detainee who is symptomatic (even if not
coronavirus-positive).”
In imposing this relief, the district court made detailed
factual findings about the policies the Sheriff had enacted
and his successes and shortcomings in executing those
policies. Throughout its decision, the district court relied
heavily on the CDC Guidelines. Where the district court
elected to impose the requested relief, the court noted
that the evidence showed the Sheriff’s collective actions
fell short of those recommended in the CDC Guidelines.
In several instances, though, the district court
declined to implement additional relief where the evidence
revealed that the Sheriff already had a policy in place—
such as one requiring a fourteen-day quarantine of all new
detainees—or existing measures were sufficient—such as
those to enforce the use of PPE by Jail staff who come into
contact with detainees. The court also overruled Plaintiffs’
requests for mandatory social distancing throughout the
Jail and a directive to identify detainees who are at high
risk for complications from COVID-19. In these instances,
the court was unpersuaded that Plaintiffs were likely to
succeed on the merits of their claim that the Sheriff’s
conduct posed a constitutional violation.
10a
Appendix A
Regarding social distancing in particular, the district
court acknowledged the Sheriff’s “ongoing effort[s] to
modify custodial arrangements” at the Jail to “permit
greater separation of detainees,” but noted that “space
constraints” at the Jail preclude “complete social
distancing.” The court cited the CDC Guidelines, which
“expressly recognize that complete social distancing
may not be possible in the sleeping areas of a jail.” The
court also acknowledged that “[s]pace constraints at the
Jail do not allow for the more preferable degree of social
distancing that exists in the community at large.” The
court thus concluded that “plaintiffs have [failed] to show
a reasonable likelihood of success on their contention
that the Sheriff is acting in an objectively unreasonable
manner by failing to mandate full social distancing”
and that this was “particularly so because the Sheriff’s
submission reflects an ongoing effort to modify custodial
arrangements at the Jail in a way that will permit greater
separation of detainees.»
2.
Preliminary Injunction
On April 14, Plaintiffs moved for entry of a preliminary
injunction. Relevant to our decision today, Plaintiffs sought
to extend the relief the court imposed in the temporary
restraining order and again requested a mandate
for social distancing throughout the Jail. The Sheriff
opposed the motion, and, regarding the request for social
distancing, argued that his efforts were consistent with
the CDC Guidelines, that he had already taken substantial
steps to implement social distancing, and that further
steps were impossible. The Sheriff submitted a progress
11a
Appendix A
report on efforts to contain the coronavirus. Regarding
social distancing, the progress report described efforts
to open previously closed divisions, transition 175 tiers
to single-cell housing, and reduce dormitory capacity to
below fifty percent, except for detainees in certain medical
or restricted housing. The Sheriff also had worked with
criminal justice stakeholders to secure the release of more
than 1,200 detainees with appropriate bond conditions,
increased single-cell housing at the Jail by approximately
545%, and decreased double-celled housing at the Jail by
over 90%.
The district court conducted a preliminary injunction
hearing via videoconference and permitted each side to call
one witness in addition to submitting affidavits. The court
ultimately granted Plaintiffs’ motion in part. Regarding
Plaintiffs’ § 1983 claim, the court conditionally certified
the proposed class to the extent Plaintiffs requested
a conversion of the temporary restraining order to a
preliminary injunction and a mandate requiring increased
social distancing. The court then proceeded to the question
of whether Plaintiffs had demonstrated that they had a
“better than negligible chance” of succeeding on their
contention that the Sheriff’s conduct in addressing the
risks posed by exposure to the coronavirus is objectively
unreasonable. The court acknowledged the “significant,
and impressive, effort” the Sheriff had undertaken, and
noted that, if this were an Eighth Amendment claim, this
finding regarding the Sheriff’s efforts would likely end
the matter.
12a
Appendix A
The court focused on Plaintiffs’ renewed request for
a policy precluding double celling and group sleeping
arrangements to facilitate social distancing. The court
first explained that the CDC Guidelines, which set a
feasibility limitation on social distancing practices, are
relevant but not dispositive. The court then determined
that “group housing and double celling subject detainees to
a heightened, and potentially unreasonable and therefore
constitutionally unacceptable, risk of contracting and
transmitting the coronavirus.” Thus, after making a
passing reference to the Sheriff’s interest in discipline
and security in the Jail and dismissing the Sheriff’s
contention that he faced feasibility limitations on further
social distancing, the court concluded that Plaintiffs were
reasonably likely to succeed on their contention that group
housing and double celling is objectively unreasonable,
except in certain situations. In arriving at this conclusion,
the court did not discuss any other aspect of the Sheriff’s
response to COVID-19; instead, the court limited its
discussion solely to the importance of social distancing.
The court also rejected the Sheriff’s argument that his
compliance with the temporary restraining order rendered
its extension into a preliminary injunction unnecessary
because the court could not conclude that the constitutional
violations would not recur absent such an extension. The
court did not revisit any of its findings related to the
measures it ordered in the temporary restraining order.
Regarding the remaining preliminary injunction
factors, the district court determined that Plaintiffs had
shown that, without additional measures, they would
likely suffer irreparable harm—including severe illness
13a
Appendix A
and death—and that damages could not fully remedy the
risk they faced. Lastly, the district court determined the
balance of harms weighed in favor of Plaintiffs. The court
therefore issued a preliminary injunction extending all of
the relief included in the temporary restraining order, with
the additional requirement of a policy precluding group
housing and double celling except in certain situations,
such as when a medical or mental health professional
has determined a detainee poses a risk of suicide or selfharm if placed in a single cell or when a detainee requires
medical treatment not available in socially distanced
housing.
The Sher iff appealed, challeng ing the entire
preliminary injunction but directing the bulk of his
arguments to the prohibition against double celling and
group housing.
II. Discussion
“To obtain a preliminary injunction, a plaintiff must
show that: (1) without this relief, it will suffer ‹irreparable
harm’; (2) ‹traditional legal remedies would be inadequate’;
and (3) it has some likelihood of prevailing on the merits
of its claims.” Speech First, Inc. v. Killeen, 968 F.3d 628,
637 (7th Cir. 2020) (quoting Courthouse News Serv. v.
Brown, 908 F.3d 1063, 1068 (7th Cir. 2018)). If a plaintiff
makes such a showing, the court proceeds to a balancing
analysis, where the court must weigh the harm the denial
of the preliminary injunction would cause the plaintiff
against the harm to the defendant if the court were to
grant it. Courthouse News Serv., 908 F.3d at 1068. This
14a
Appendix A
balancing process involves a “sliding scale” approach: the
more likely the plaintiff is to win on the merits, the less
the balance of harms needs to weigh in his favor, and vice
versa. Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th
Cir. 2001). Mandatory preliminary injunctions—those
“requiring an affirmative act by the defendant”—are
“ordinarily cautiously viewed and sparingly issued.”
Graham v. Medical Mut. of Ohio, 130 F.3d 293, 295 (7th
Cir. 1997); see also Pashby v. Delia, 709 F.3d 307, 319 (4th
Cir. 2013) (review of a preliminary injunction is “even more
searching” when the injunction is “mandatory rather than
prohibitory in nature.”)
While we review the district court’s balancing of
the harms for an abuse of discretion, we review its legal
conclusions de novo and its findings of fact for clear error.
C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541, 545 (7th Cir.
2020). “[A] factual or legal error may alone be sufficient to
establish that the court ‘abused its discretion’ in making
its final determination.” Lawson Prod., Inc. v. Avnet, Inc.,
782 F.2d 1429, 1437 (7th Cir. 1986). “Absent such errors,”
however, “we afford a district court’s decision ‘great
deference.’” Speech First, Inc., 968 F.3d at 638 (quoting
Valencia v. City of Springfield, 883 F.3d 959, 966 (7th
Cir. 2018)).
A. Socially Distanced Housing
We first address the portion of the preliminary
injunction aimed at socially distanced housing because
that is the thrust of the Sheriff’s appeal. The parties do
not dispute the district court’s conclusions regarding the
15a
Appendix A
first two elements of the preliminary injunction standard:
that Plaintiffs would suffer irreparable harm and that
traditional legal remedies would be inadequate. Rather,
the debate focuses entirely on the likelihood of success
on the merits of their claim that the Sheriff’s actions (or
inaction, as Plaintiffs contend) in response to COVID-19
are objectively unreasonable. We therefore limit our
discussion to this threshold requirement.
We conclude that the district court committed three
distinct legal errors: the court failed to consider the
totality of the circumstances, the court failed to afford
proper deference to the Sheriff’s judgment in adopting
policies necessary to ensure safety and security in the
Jail, and the court recited an incorrect legal standard
when evaluating the likelihood that Plaintiffs’ contentions
will succeed on their merits. We address each of these
errors in turn.
1.
Totality of the Conduct
We start with the proper scope of the analysis under
the more recent objective reasonableness inquiry for
pretrial conditions of confinement claims. In Kingsley v.
Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 192 L. Ed.
2d 416 (2015), the Supreme Court concluded that, when
bringing an excessive force claim, a “pretrial detainee
must show only that the force purposely or knowingly
used against him was objectively unreasonable,” rather
than demonstrate deliberate indifference. Id. at 396-97.
Recognizing “that the Supreme Court has been signaling
that courts must pay careful attention to the different
16a
Appendix A
status of pretrial detainees,” we held in Miranda v.
Cty. of Lake, 900 F.3d 335 (7th Cir. 2018), that a pretrial
detainee’s claims of inadequate medical care also “are
subject only to the objective unreasonableness inquiry
identified in Kingsley.” Id. at 352. We saw “nothing in the
logic the Supreme Court used in Kingsley” to support a
“dissection of the different types of claims that arise under
the Fourteenth Amendment’s Due Process Clause.” Id. We
likewise subsequently expanded this holding to encompass
conditions of confinement claims under the Fourteenth
Amendment Due Process Clause. Hardeman v. Curran,
933 F.3d 816, 823 (7th Cir. 2019) (citing Kingsley, 576 U.S.
at 396-97). Accordingly, we must analyze Plaintiffs’ claim
under the objective reasonableness inquiry articulated in
Kingsley.1 Id.
The Supreme Court described the application of the
objective reasonableness standard in Kingsley: “A court
(judge or jury) cannot apply this standard mechanically.
Rather, objective reasonableness turns on the facts and
circumstances of each particular case.” 576 U.S. at 397.
We reiterated this principle in McCann v. Ogle Cty.,
Illinois, 909 F.3d 881 (7th Cir. 2018), explaining that,
when evaluating whether challenged conduct is objectively
1. Both the Sixth Circuit and the Eleventh Circuit have
recently addressed conditions of confinement claims involving the
coronavirus in prison settings. See Wilson v. Williams, 961 F.3d 829
(6th Cir. 2020), in Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020).
These Circuits, however, apply an Eighth Amendment deliberate
indifference standard to pretrial detainee conditions of confinement
claims rather than the objectively unreasonable claim that we apply,
and thus focus on a subjective element that is not at issue here.
17a
Appendix A
unreasonable, courts must “focus on the totality of facts
and circumstances.” Id. at 886.
The district court erred by narrowly focusing its
objective reasonableness analysis almost exclusively on
social distancing instead of considering the totality of
facts and circumstances, including all of the Sheriff’s
conduct in responding to and managing COVID-19.
Citing McCann, the district court wrote, “To succeed on
their claim, the plaintiffs must show that the Sheriff’s
conduct in addressing the risks posed by exposure to
coronavirus is objectively unreasonable in one or more
respects.” (emphasis added). The district court then went
on to emphasize social distancing and the Sheriff’s efforts
to implement social distancing to the exclusion of the
Sheriff’s other actions. This analysis incorrectly ignored
the totality of the circumstances. It may very well be the
case that a particular aspect of an action is so lacking that
the failing on this one factor will lead a court to correctly
conclude the entire course of challenged conduct was
objectively unreasonable. It may also be that some actions
or inactions are more consequential than others. But that
does not mean that the court should evaluate each aspect
of the disputed actions in a vacuum, especially in a case
involving a systemic claim like here. Rather, the court
must consider the total of the circumstances surrounding
the challenged action.
In addition, the district court hinged its decision to
impose a social distancing directive on the basis of one,
and only one, key factual finding: “At the current stage of
the pandemic, group housing and double celling subject
18a
Appendix A
detainees to a heightened ... risk of contracting and
transmitting the coronavirus.” We do not suggest that this
finding was erroneous: the district court had before it a
voluminous evidentiary record about the importance of
social distancing to reducing transmission of COVID-19.
Instead, we take issue with what was missing: absent
from the district court’s reasoning was any mention
of the totality of the measures the Sheriff already had
taken to combat the spread of COVID-19, including those
regarding social distancing. By the time the district
court issued the preliminary injunction, the Sheriff had
already implemented several such measures. Notably,
and as the district court initially acknowledged in its
temporary restraining order, these included substantial
efforts to increase social distancing, such as opening
shuttered divisions of the Jail, creating new single-cell
housing, and decreasing the capacity of dormitories. The
Sheriff had also undertaken extensive other measures
to prevent and manage the spread of COVID-19 at
the Jail. By failing to evaluate the request for a policy
precluding double celling and group housing in light of
the other aspects of the Sheriff’s COVID response, the
district court did not properly consider the totality of the
facts and circumstances when evaluating the objective
unreasonableness of the Sheriff’s actions.
2.
Deference to Correctional Administrators
We turn to a second error: the failure to defer to
correctional administrators in a matter implicating safety
and security concerns. “When evaluating reasonableness,
... courts must afford prison administrators ‘wide-ranging
19a
Appendix A
deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.’” Henry v. Hulett, F.3d , 2020 U.S. App. LEXIS
25390, 2020 WL 469188, (7th Cir. 2020) (en banc) (quoting
Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 60 L.
Ed. 2d 447 (1979)). Likewise, a court must “account for
the legitimate interests that stem from the government’s
need to manage the facility in which the individual is
detained.” Kingsley, 576 U.S. at 397. Thus, “in the absence
of substantial evidence in the record to indicate that
the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their
expert judgment in such matters.” Bell, 441 U.S. at 548
(quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct. 2800,
41 L. Ed. 2d 495 (1974)). Correctional administrators must
have “substantial discretion to devise reasonable solutions
to the problems they face,” particularly when safety and
security interests are at stake. Florence v. Bd. of Chosen
Freeholders of Cty. of Burlington, 566 U.S. 318, 326, 132
S. Ct. 1510, 182 L. Ed. 2d 566 (2012). Thus, “as part of the
objective reasonableness analysis ... deference to policies
and practices needed to maintain order and institutional
security is appropriate.” Kingsley, 576 U.S. at 399-400.
When evaluating Plaintiffs’ request for a policy
precluding group housing and double celling, the district
court made a passing reference to its obligation to
“account for and give deference to the Sheriff’s interest
in managing the Jail facilities and to practices that are
needed to preserve order and discipline and maintain
security.” The district court, however, did not discuss in a
20a
Appendix A
meaningful way how, if at all, the considerable deference it
owed to the judgment of prison administrators impacted
its analysis. Undoubtedly, safety and security concerns
play a significant role in a correctional administrator’s
housing decisions: jails and prisons require some degree
of flexibility in choosing cell assignments, as they need
to ensure, for example, that detainees are assigned to
the living quarters corresponding with their security
classifications and factoring in particular vulnerabilities
that increase security risks. This is especially true at
the Jail where the population fluctuates daily given
the number of bookings and releases that take place.
Correctional officers similarly must have the freedom to
quickly reassign inmates when fights or other emergency
situations occur that threaten the safety of staff and
inmates. This is perhaps no more important than at a
facility like the Cook County Jail, which houses a wide
range of detainees accused of committing up to the most
serious of violent offenses. Given the deference courts
owe to correctional administrators on matters implicating
safety concerns and the substantial role that security
interests play in housing assignments, the failure to
consider these interests was a legal error.
3.
Likelihood of Success on the Merits
Lastly, we address a third issue: the proper standard
for evaluating the likelihood of success on the merits when
considering a motion for a preliminary injunction. The
district court began its analysis of Plaintiffs’ request for a
policy requiring socially distanced housing by noting that,
to demonstrate a likelihood of prevailing, Plaintiffs must
21a
Appendix A
show “only a better than negligible chance of success.” The
district court explained this is a “low threshold.”
As we just explained in Illinois Republican Party
v. Pritzker, F.3d , 2020 U.S. App. LEXIS 28118, 2020
WL 5246656, at *2 (7th Cir. Sept. 3, 2020), “the ‹better
than negligible’ standard was retired by the Supreme
Court,” and is not the proper standard to apply when
evaluating the likelihood of success on the merits in a
preliminary injunction motion. The standard originated
in Omega Satellite Prod. Co. v. City of Indianapolis,
694 F.2d 119 (7th Cir. 1982). But like many instances of
selectively quoted phrases, we did not use this phrase as
an unadorned statement of the applicable standard. We
said in Omega:
If the harm to the plaintiff from denial of the
preliminary injunction would be very great and
the harm to the defendant from granting it very
small, then the injunction should be granted
even if the defendant has a better chance of
prevailing on the merits than the plaintiff,
provided the plaintiff’s chances are better than
negligible; and vice versa.
Id. at 123. As readily apparent, in context, we were
explaining no more than what has become known as our
sliding scale approach. Since Omega, though, we have at
times—confusingly—cited the “better than negligible”
phrase as if it were the proper standard for evaluating
the likelihood of success on the merits at the preliminary
injunction stage. See Ill. Republican Party, 2020 U.S. App.
LEXIS 28118, 2020 WL 5246656 at *2 (collecting cases).
22a
Appendix A
The Supreme Court has invoked a higher standard.
In Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 129
S. Ct. 365, 172 L. Ed. 2d 249 (2008), the Court stated
that “[a] plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits.” Id.
at 20 (emphasis added). Similarly, when discussing the
requisite showing to establish irreparable injury, the
Court explained that its standard “requires plaintiffs
seeking preliminary relief to demonstrate that irreparable
injury is likely in the absence of an injunction.” Id. at
22 (emphasis in original) (rejecting the Ninth Circuit’s
“possibility” standard as “too lenient”). The Court
provided further guidance in Nken v. Holder, 556 U.S.
418, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009), which set
forth the standard governing motions for a stay pending
appeal. Though a different context, “[t]here is substantial
overlap between [the traditional stay factors] and the
factors governing preliminary injunctions.” Id. at 434
(citing Winter, 555 U.S. at 24). This is “not because the
two are one and the same, but because similar concerns
arise whenever a court order may allow or disallow
anticipated action before the legality of that action has
been conclusively determined.” Id. The Court reiterated
that under the “traditional” standard for a stay, the first
factor asks “whether the stay applicant has made a strong
showing that he is likely to succeed on the merits.” Id. at
425-26 (quoting Hilton v. Braunskill, 481 U.S. 770, 776,
107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987)). For that showing,
the Court made clear, “[i]t is not enough that the chance of
success on the merits be ‘better than negligible,’” quoting
with disapproval this court’s decision in Sofinet v. INS,
188 F.3d 703, 707 (7th Cir. 1999). Id. at 434.
23a
Appendix A
We thus reiterate that a plaintiff must demonstrate
that “its claim has some likelihood of success on the
merits,” see, e.g., Eli Lilly and Co. v. Arla Foods, Inc., 893
F.3d 375, 381 (7th Cir. 2018), not merely a “better than
negligible” chance. What amounts to “some” depends on
the facts of the case at hand because of our sliding scale
approach. See Ty, Inc., 237 F.3d at 895.
Here, in reliance on our prior precedent, the district
court recited the incorrect “better than negligible”
standard several times. In various instances, though, the
district court’s analysis indicates that it, in fact, applied a
higher standard. In particular, the district court at times
used language that Plaintiffs were “reasonably likely to
succeed on their contention,” and the court ultimately
concluded that Plaintiffs had “far surpassed” the “better
than negligible” standard. Thus, were the recitation of
the incorrect standard the district court’s only error,
we could not say that the district court abused its
discretion in imposing the social distancing requirement.
But, when coupling this with the district court’s other
errors, we cannot be certain that Plaintiffs’ showing
of the likelihood of success on the merits of their claim
would have surmounted the appropriate standard. We
therefore reverse the portion of the preliminary injunction
precluding double celling and group housing at the Jail.
We emphasize that we do not address the merits of
whether Plaintiffs have demonstrated that they have
suffered a constitutional violation. Indeed, our discussion
solely addresses the legal errors the district court
committed in the course of its preliminary injunction
24a
Appendix A
analysis. We reverse this portion of the preliminary
injunction on the basis of these legal errors alone.
B. Remaining Relief
In the temporary restraining order, the district court
granted several measures of relief to Plaintiffs, including
requirements that the Sheriff implement procedures and
policies related to sanitation, testing, and provision of face
masks to detainees in quarantine. When the district court
issued the preliminary injunction, it did not revisit its
analysis on any of these measures. Because the discussion
pertaining to these measures resides in the temporary
restraining order, we turn there for our analysis.
We affirm the aspects of the preliminary injunction
that the district court converted from the temporary
restraining order. In that order, the district court made
detailed factual findings about the risks of COVID-19,
the Sheriff’s existing policies, and the execution of these
policies, relying on hearing testimony and affidavits
from Plaintiffs’ experts, detainees, and correctional
administrators. Importantly, the district court assessed
the requested relief considering the totality of the Sheriff’s
conduct, rather than reviewing it in isolation. For example,
the district court declined Plaintiffs’ request to mandate
testing of new detainees since the Sheriff already had
in place a policy requiring detainees to quarantine for
fourteen days upon their arrival to the Jail.
The district court also carefully considered the
Sheriff’s conduct in light of the CDC Guidelines and
25a
Appendix A
hewed closely to the Guidelines in its explanation of each
measure of relief it ordered. The CDC Guidelines—like
other administrative guidance—do not themselves set
a constitutional standard. See Bell, 441 U.S. at 543 n.27
(noting that recommendations of a Department of Justice
task force “regarding conditions of confinement for pretrial
detainees are not determinative of the requirements of the
Constitution”); cf. J.K.J. v. Polk Cty., 960 F.3d 367, 384
(7th Cir. 2020) (en banc) (concluding that the guidelines
set by the Prison Rape Elimination Act do not set a
constitutional parameter under the more demanding
Monell deliberate indifference standard). Indeed, “while
the recommendations of these various groups may be
instructive in certain cases, they simply do not establish
the constitutional minima; rather, they establish goals
recommended by the organization in question.” Bell, 441
U.S. at 543 n.27. But even if not dispositive, implementation
(and proper execution) of guidelines that express an expert
agency’s views on best practices are certainly relevant to
an objective reasonableness determination. United States
v. Brown, 871 F.3d 532, 537 (7th Cir. 2017) (noting that
evidence of policy or procedure may be relevant to an
objective reasonableness inquiry, even though it does not
set the constitutional standard). This is particularly true
here, where the CDC Guidelines provide the authoritative
source of guidance on prevention and safety mechanisms
for a novel coronavirus in a historic global pandemic where
the public health standards are emerging and changing.
The CDC Guidelines differ in material ways from
the police department regulations at issue in our decision
in Thompson v. City of Chicago, 472 F.3d 444 (7th Cir.
26a
Appendix A
2006). In Thompson, we determined that a policy on
the use of force established by the police department
did not dictate the constitutional standard for the use of
force. Id. at 454; see Brown, 871 F.3d at 537 (clarifying
the holding of Thompson). But the CDC Guidelines,
arising from an expert, independent agency, are entitled
to greater weight than a police department’s internallycrafted regulations. See Brown, 871 F.3d at 537 (“[I]f
compliance with departmental policy were the applicable
legal standard, the police department itself would become
the arbiter of Fourth Amendment reasonableness—a
prospect that would have horrified those responsible for
the Amendment’s ratification.”). The district court thus
properly relied on these Guidelines in the course of its
preliminary injunction analysis.
We note that, as it did with its discussion of Plaintiffs’
request for an order precluding double celling and group
housing arrangements, the district court made only a
passing reference to the Sheriff’s interest in managing Jail
facilities and its obligation to defer to policies and practices
necessary to preserve order and security. Likewise, the
court did not meaningfully discuss this deference in its
analysis. We are less troubled, though, given the nature of
the relief ordered. Whereas safety and security concerns
are fundamental to housing assignments, this is not true
to the same degree for measures pertaining to sanitation,
testing, and providing facemasks. We therefore do not
find legal error.
Lastly, we address a motion by the Sheriff to
supplement the record with a CDC report—entitled
27a
Appendix A
“Outbreak of COVID-19 and Interventions in One of
the Largest Jails in the United States—Cook County,
IL, 2020”—and, alternatively, the Sheriff’s request that
this Court take judicial notice of it. We deny the motion
to supplement the record as the district court has yet to
consider this document in the first instance. See Tonyan v.
Dunham’s Athleisure Corp., 966 F.3d 681, 684 n.1 (7th Cir.
2020). We similarly decline to take judicial notice. “The
Federal Rules of Evidence permit a court to take judicial
notice of a fact that is ‘not subject to reasonable dispute’
because it is ‘generally known’ or ‘can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.’” United States v. De La
Torre, 940 F.3d 938, 952 (7th Cir. 2019) (quoting Fed. R.
Evid. 201(b)). The contents of this report—the Sheriff’s
COVID-19 interventions and their purported impact—
are not “‘generally known,’ at least to us.” Id. Further,
we cannot determine if the sources can reasonably be
questioned because the parties dispute who authored the
report and the district court has not had the opportunity
to make any factual findings on the author. Nor are the
contents “incontrovertible,” as its authors “were not
subject to Daubert challenges, cross-examined, or tested
with competing expert testimony.” Id. The contents of the
report are thus “arguably subject to reasonable dispute,”
and therefore are not a proper subject of judicial notice.
III. Conclusion
We commend Judge Kennelly for his handling of the
motion, particularly in light of the many novel issues posed
by the onset of COVID-19 and the case’s emergent nature.
28a
Appendix A
We nevertheless REVERSE in part and VACATE the
portion of the preliminary injunction precluding double
celling and group housing because of the legal errors
that arose as the district court applied the objective
reasonableness standard recently announced in Kingsley.
We AFFIRM the remainder of the preliminary injunction
ruling.
29a
Appendix B
APPENDIX B — MEMORANDUM
OPINION AND
ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS, EASTERN DIVISION,
FILED APRIL 27, 2020
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT
OF ILLINOIS, EASTERN DIVISION
April 27, 2020, Decided;
April 27, 2020, Filed
Case No. 20 C 2134
ANTHONY MAYS, INDIVIDUALLY AND ON
BEHALF OF A CLASS OF SIMILARLY SITUATED
PERSONS; AND JUDIA JACKSON, AS NEXT
FRIEND OF KENNETH FOSTER, INDIVIDUALLY
AND ON BEHALF OF A CLASS OF SIMILARLY
SITUATED PERSONS,
Plaintiffs-Petitioners,
vs.
THOMAS DART,
Defendant-Respondent.
30a
Appendix B
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:1
Anthony Mays and Kenneth Foster, both of whom
are detained at Cook County Jail while awaiting trial on
criminal charges, have sued Cook County Sheriff Thomas
Dart, who operates the Jail, on behalf of a class of similarly
situated persons. Mays and Foster allege the Sheriff has
violated the constitutional rights of persons detained at
the jail by failing to provide them with reasonably safe
living conditions in the face of the current coronavirus
pandemic. They assert claims under 42 U.S.C. § 1983 and
for writs of habeas corpus under 28 U.S.C. § 2241.
On April 9, 2020, the Court granted the plaintiffs’
motion for a temporary restraining order in part. The
Court directed the Sheriff to: (1) establish and implement,
w ithin two days’ time, a policy requiring prompt
coronavirus testing of detained persons with symptoms
consistent with coronavirus disease; (2) within two days’
time, eliminate the use of “bullpens” to hold groups of new
detainees during the intake process; (3) begin to provide
inmates and staff, within one day, soap and/or hand
sanitizer sufficient to enable them to frequently clean their
hands, and sanitation supplies sufficient to enable them
to regularly sanitize surfaces in areas used in common;
(4) establish and carry out, within two days’ time, a policy
requiring sanitation of all such surfaces between each use;
1. Judge Kennelly is addressing this matter as emergency judge
pursuant to paragraph 5 of Second Amended General Order 20-0012.
31a
Appendix B
and (5) within three days’ time, distribute facemasks to all
detained persons quarantined due to their exposure to a
person exhibiting symptoms consistent with coronavirus
disease. The Court overruled the plaintiffs’ request for
additional temporary relief, including a mandate for
implementation of “social distancing” throughout the Jail
and to provide facemasks to every detained person. The
Court also concluded that the plaintiffs seeking habeas
corpus relief had failed to exhaust available state court
remedies.
The plaintiffs have now moved for entry of a
preliminary injunction and other relief. They again seek
writs of habeas corpus, based on newly discovered facts
that they contend provide a basis to excuse their failure to
exhaust state court remedies. They also seek conversion
of the temporary restraining order to a preliminary
injunction, and they again request an order requiring
implementation of social distancing throughout the Jail, as
well as transfer of detained persons from the Jail to other
locations within the Sheriff’s control, including electronic
home monitoring. The plaintiffs also request the convening
of a three-judge court under the Prison Litigation Reform
Act to consider entering a “prisoner release order” within
the meaning of that statute.
For the reasons stated below, the Court converts the
terms of the temporary restraining order to a preliminary
injunction and enters further preliminary injunctive relief
regarding social distancing but denies the plaintiffs’ other
requests for relief.
32a
Appendix B
Factual Background
The following discussion of relevant facts concerning
coronavirus, the Cook County Jail facilities, and the
parties’ claims and defenses is taken from undisputed
facts, the affidavits and documentary evidence submitted
by the parties, and the testimony and exhibits offered at
the evidentiary hearing held on April 23, 2020.
A. The coronavirus pandemic
The rapid global spread of the novel coronavirus
has led to a pandemic of extraordinary scale. The
Court’s decision on the plaintiffs’ motion for a temporary
restraining order includes a discussion of the gravity of
the public health threat associated with this virus. Mays
v. Dart, No. 20 C 2134, 2020 U.S. Dist. LEXIS 62326, 2020
WL 1812381, at *2 (N.D. Ill. Apr. 9, 2020).
Symptoms of the disease caused by the novel
coronavirus—what has come to be known as COVID-19,
which the Court will refer to as coronavirus disease—
include fever, cough, and shortness of breath, and the
health effects can be very severe, including serious
damage to the lungs and other internal organs, and death.
People who are sixty-five years of age or older and those
with certain pre-existing health conditions, including
chronic lung disease, moderate to severe asthma, serious
heart conditions, diabetes, chronic kidney disease, liver
disease, a body mass index of forty or higher, and other
conditions have a heightened vulnerability to severe illness
if they contract the coronavirus.
33a
Appendix B
The rapid transmission of coronavirus has been
attributed to several characteristics. Respiratory droplets
containing the virus emitted by an infected person, though
coughing or sneezing for example, can travel several feet
and may persist in the air for several hours. In addition,
because the virus can persist on some surfaces for up to
three days, transmission can occur even without physical
proximity to an infected person. Moreover, those who
contract the virus may be asymptomatic for days or
even for the entire duration of the infection but can still
transmit the virus to others, making it more challenging
to readily identify infected individuals and respond with
necessary precautions.
There is currently no known effective treatment for
coronavirus disease and no vaccine to prevent people
from contracting it. Medical professionals and public
health experts agree—and the evidence in this case
demonstrates beyond peradventure—that the only way
to curb the spread of the virus is through a multi-faceted
strategy that includes testing to identify those who have
been infected; isolation of those who test positive or develop
symptoms consistent with the disease; quarantining
those who may have come into contact with the virus;
frequent sanitation of surfaces; frequent handwashing;
and use of personal protective equipment (PPE) such
as facemasks. And a key tactic recommended by public
health experts to curb the spread of coronavirus disease
has been to keep people apart from each other—what has
come to be known as “social distancing.” The Centers for
Disease Control’s Interim Guidance on Management of
Coronavirus Disease 2019 (COVID-19) in Correctional
34a
Appendix B
and Detention Facilities (“CDC Guidelines”), 2 defines
social distancing as “the practice of increasing the space
between individuals and decreasing the frequency of
contact to reduce the risk of spreading a disease (ideally
to maintain at least 6 feet between all individuals, even
those who are asymptomatic).” 2020 U.S. Dist. LEXIS
62326, [WL] at 4.
Social distancing has effectively been mandated by
most state governments as a critical strategy in combatting
the pandemic. Here in Illinois, the state has been under a
statewide stay-at-home order first imposed by Governor
J.B. Pritzker effective March 20, 2020, the goal of which
is to limit person-to-person contacts to curb transmission
of the virus. Activities not deemed “essential” have been
shut down. People have been strongly urged, and in
many situations directed (by governments, employers,
commercial establishments, and so on) to maintain space
between themselves and others. In addition, the wearing
of PPE, primarily facemasks, has been strongly advised
and now required in some situations, particularly when
people may come into contact with others.
The effect of the stay-at-home orders imposed in
Illinois and most other states, along with advice by
national officials to limit contacts and group activities,
has been dramatic: schools have been closed; commercial
establishments and workplaces have ceased operations,
resulting in massive job losses; public events have largely
2. The Guidelines were issued on March 23, 2020 and are
available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/
guidance-correctional-detention.pdf.
35a
Appendix B
been cancelled; and access to public spaces has been
limited or barred entirely. Entire sectors of the national
economy have slowed to a snail’s pace. Society has paid a
very high price to curb the spread of this highly contagious
virus.
B. Operation of the Cook County Jail
The Sheriff runs the Cook County Jail. As the Court
stated in its written decision on the plaintiffs’ motion for
a temporary restraining order (TRO), the Jail is “a very
large physical facility—actually a campus of separate
physical facilities—whose population, if one considers
including both detainees and staff, is the size of a small
(but not all that small) town.” Mays, 2020 U.S. Dist.
LEXIS 62326, 2020 WL 1812381, at *1. Managing the
Jail is extraordinarily challenging because of the size of
its population and physical facilities, the diverse needs
of the detainees, the Sheriff’s public safety obligations,
and his obligations to the criminal justice system. The
Sheriff’s public safety obligations require him to consider
the appropriate custodial conditions for each detained
person. As the Court has noted, the Jail’s population
“runs the gamut from persons with lengthy criminal
records who are accused of committing violent crimes to
non-violent offenders in custody for the first time who,
perhaps, remain in custody only because they and their
families were unable to post bond money.” Id. And the
Sheriff’s obligations to the people in his custody, most
of whom are detained awaiting trial on crimes for which
they are therefore entitled to a presumption of innocence,
require him to provide care sufficient to account for each
36a
Appendix B
individual’s physical and mental health conditions. This
is no small task, particularly given that populations in
custody are statistically more likely to have adverse health
conditions, both physical and mental.
Adding an infectious disease outbreak to these
conditions further complicates the difficult challenge of
managing the Jail. The very nature of the Jail’s setup
and day-today operations facilitates rapid transmission
of communicable diseases like the one caused by the
coronavirus. First, the Jail’s physical facilities are
designed to accommodate large populations, all densely
housed, and many in congregate settings. In particular,
the Jail has many so-called “dormitory” units, which in
normal times may house as many as hundreds of detained
persons in a single room with closely-spaced bunk beds.
Second, the Jail is a closed environment with many
spaces used in common. Persons detained there—even
those housed in single-occupancy cells—do not have
individual bathing facilities; toilets are typically used in
common; they eat in groups under normal circumstances;
and they come into contact with each other and with
correctional officers in other common areas. And even
when confined, detainees are in close proximity, in
adjoining cells and in tiers that use a common ventilation
system.
Third, the routine operations of the Jail require
high levels of movement of people. Detained persons
must be escorted from their cells to common areas like
shower and bathroom facilities. In normal times they are
escorted to court hearings and recreational areas (all or
37a
Appendix B
nearly all of which have come to a stop). Finally, large
numbers of staff personnel, as well as vendors, move in
and out of the Jail and its various areas on a daily basis.
In doing so, these individuals have contact with other
members of the community at large, who themselves may
have contracted coronavirus. Thus staff members and
contractors potentially can carry the virus both into and
out of the Jail.
Limiting exposure to the coronavirus in the Jail is
therefore a significant challenge. Infection rate data
reflects that it has been challenging to effectively curb
transmission of the highly infectious coronavirus in the
setting of the Jail. As of April 6, 2020, the infection rate
within the Jail was an order of magnitude higher than the
rate of infection in Cook County. Mays, 2020 U.S. Dist.
LEXIS 62326, 2020 WL 1812381, at *8. And on April 8,
2019, the New York Times reported that, at that time,
the Jail was the largest-known source of coronavirus
infections in the United States. See Timothy Williams
and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as
Virus Spreads Behind Bars (April 8, 2020), N.Y. Times,
https://www.nytimes.com/2020/04/08/us/coronaviruscook-county-jail-chicago.html (last updated April 23,
2020).
Procedural History
A. Plaintiffs’ suit and motion for a temporary
restraining order
The plaintiffs, Anthony Mays and Kenneth Foster, are
detained at the Cook County Jail and have been housed on
38a
Appendix B
tiers in which at least one person had been infected with
the coronavirus. On April 3, 2020, they sued the Sheriff
on behalf of themselves and others similarly situated, with
allegations stemming from the risks the coronavirus poses
to their health. The plaintiffs seek to represent a class and
two putative subclasses. The class consists of “all people
who are currently or who will in the future be housed in
the Cook County Jail for the duration of the COVID-19
pandemic.” Compl. (dkt. no. 1) ¶ 60. “Subclass A consists
of all people who, because of age or previous medical
conditions, are at particularly grave risk of harm from
COVID-19.” Id. ¶ 61. “Subclass B consists of all people
who are currently housed on a tier where someone already
tested positive for the coronavirus.” Id. ¶ 62. Mays and
Foster both have medical conditions that heighten their
risk of serious health consequences from an infection by
the coronavirus.
In their complaint, the plaintiffs alleged that because
the Sheriff was not implementing measures to control
the spread of the coronavirus at the Jail, especially those
recommended in the CDC Guidelines, the conditions
in the Jail facilitated rapid transmission, putting the
health of detained persons at great risk. In support of
this contention, the plaintiffs attached several affidavits
to their complaint from individuals who had spoken to
persons detained at the jail. These affidavits reported the
following conditions at the Jail in late March and early
April:
• detained persons were not receiving soap, hand
sanitizer, or facemasks;
39a
Appendix B
• facemasks that they made for themselves out of
cloth were being confiscated;
• detainees were being housed in bunks or beds that
were between two and four feet apart from each
other;
• many detained persons were living in dormitorystyle housing, where dozens of individuals shared
a single room;
• detained persons were being held at intake in socalled bullpens, where numerous detainees were
held together for extended periods in a crowded
cell; and
• the Jail’s staff was not regularly sanitizing common
surfaces or providing detainees with cleaning
supplies to do this themselves.
The day they filed suit, the plaintiffs moved for the
issuance of writs of habeas corpus for the members of
subclass A and for a TRO or preliminary injunction on
behalf of the class as a whole, requiring the Sheriff to take
action to control the rapid spread of the coronavirus at the
Jail. The plaintiffs also moved to certify their proposed
class and subclasses.
After an extended hearing on the motion for a
temporary restraining order, the Court issued a written
decision on April 9, 2020 denying the request for writs of
habeas corpus and partially, but not entirely, granting the
40a
Appendix B
motion for a TRO. Mays, 2020 U.S. Dist. LEXIS 62326,
2020 WL 1812381, at *6, 14-16. In ruling on this motion,
the Court considered the affidavits from medical experts,
individuals who had spoken to detainees, and those from
Jail officials and employees. The Sheriff had raised a
hearsay objection to the Court’s consideration of the
affidavits from individuals who had spoken to detainees,
but hearsay may be considered in ruling on a motion for
a TRO or for a preliminary injunction. See SEC v. Cherif,
933 F.2d 403, 412 n.8 (7th Cir. 1991). 3 The TRO directed
the Sheriff to take the following actions: (1) establish
and implement a policy requiring prompt testing of
symptomatic detainees, and—if medically appropriate and
feasible based on the availability of testing materials—
detainees who may have been exposed to the virus; (2)
implement social distancing during intake and suspend
the use of bullpens to hold detained persons awaiting
intake; (3) provide all detained persons with adequate soap
or sanitizer for hand hygiene; (4) provide staff personnel
and detained persons with adequate cleaning supplies
to regularly sanitize surfaces and objects, including in
high-traffic areas such as shower facilities; (5) establish a
policy requiring frequent sanitation of these areas; and (6)
provide facemasks to all detained persons in quarantine.
Mays, 2020 U.S. Dist. LEXIS 62326, 2020 WL 1812381,
at *14-15.
3. “Given its temporary nature, ‘a preliminary injunction is
customarily granted on the basis of procedures that are less formal
and evidence that is less complete than in a trial on the merits.’” FTC
v. Lifewatch Inc., 176 F. Supp. 3d 757, 761 (N.D. Ill. 2016) (quoting
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L.
Ed. 2d 175 (1981)). The same, of course, is true of a TRO.
41a
Appendix B
The Court denied several of the plaintiffs’ requests for
relief. They sought an order mandating social distancing
throughout the facility, not just at intake, arguing that this
was one of the critical outbreak control measures outlined
in the CDC Guidelines. 2020 U.S. Dist. LEXIS 62326, [WL]
at *10. The Court declined to mandate social distancing
beyond intake, reasoning that there are space constraints
at the Jail and the Guidelines expressly recognized that
social distancing may not be feasible in a correctional
facility. Id. The Court also declined the plaintiffs’ request
for direct screening of medically vulnerable detainees
before they show symptoms of infection, also because the
CDC Guidelines did not mandate this. Id. In addition, the
Court denied the plaintiffs’ request to require the Sheriff
issue facemasks to every detained person, as the CDC
Guidelines recommended this only for those who had come
into contact with a symptomatic individual. 2020 U.S.
Dist. LEXIS 62326, [WL] at *12, 15. Finally, the Court
declined the plaintiffs’ request to transfer the members
of subclass B to a safe facility or other forms of custody,
because the plaintiffs had failed to show that the other
protective measures that the Court had ordered would be
inadequate to protect detained persons from the health
risks associated with the coronavirus outbreak. 2020 U.S.
Dist. LEXIS 62326, [WL] at *15. The Court also declined
subclass A’s request for emergency writs of habeas corpus,
concluding that they had failed to exhaust available state
court remedies. 2020 U.S. Dist. LEXIS 62326, [WL] at *6.
42a
Appendix B
B. The Sheriff’s response and current conditions at
the Jail
1.
April 13 status report
On April 13, pursuant to the Court’s direction, the
Sheriff filed a status report regarding compliance with
the TRO. First, with respect to the directive to test
symptomatic detainees, the Sheriff reported that Cermak
Health Services, an arm of Cook County that provides
healthcare to persons detained at the Jail, maintains the
supplies for medical testing and actually administers such
tests.4 According to the Sheriff, Cermak had determined
that it would not be medically appropriate to test all
detained persons in quarantine. The Sheriff therefore
instructed his personnel to isolate and refer symptomatic
detainees to Cermak for further evaluation and testing.
As to the order to maintain social distancing during the
Jail’s intake process, the Sheriff implemented a modified
procedure that maintains six feet of distance between all
detained persons awaiting intake and provides them with
facemasks. Use of the bullpens was discontinued.
Regarding the order to distribute facemasks, the
Sheriff stated that he had acquired and on hand sufficient
surgical masks to distribute to all quarantined detainees
and employees and that he was continuing his efforts to
obtain additional masks. Additionally, the Sheriff was
4. From a chain-of-command standpoint, Cermak is under the
control of Cook County, not the Sheriff.
43a
Appendix B
in the process of procuring cloth masks that would be
available to any detained person who requested one.
The Sheriff further reported that on April 9, he
delivered approximately 28 gallons of hand sanitizer
and 980 bars of soap for distribution in the Jail. He also
ordered distribution of soap and sanitizer twice per week
going forward. The Sheriff noted concern that some
detained persons may use the soap or hand sanitizer
as a weapon and that some might try to consume hand
sanitizer. These considerations required the Sheriff to
determine on a detainee-by-detainee basis whether to
distribute hand sanitizer or soap.
With respect to the sanitation-related directives in
the TRO, the Sheriff reported that he had distributed
cleaning supplies to staff and detained persons on April
10. He also issued a sanitation policy to ensure that
frequently touched areas such as doorknobs and phones
are sanitized between uses. He issued another a policy
requiring each living unit officer to ensure that surfaces
are routinely cleaned and sanitized during the officer’s
shift. Additionally, the Sheriff stated that he was planning
to hire an independent contractor to professionally clean
the Jail.
2.
April 17 updates from the Sheriff
On April 17, three days after the Sheriff submitted
his status report, officials from the Chicago Department
of Public Health (CDPH), including one designated as
a CDC epidemic intelligence service officer, inspected
44a
Appendix B
the Jail. These officials had toured the Jail roughly a
month prior, on March 20, and issued recommendations
for controlling COVID-19 at the Jail. A report from this
inspection, dated March 27, was introduced in connection
with the preliminary injunction hearing held on April 23.
The March 27 recommendations from the CDPH included
screening and classifying inmates based on their level of
risk associated with coronavirus disease and “considering
mass release of inmates to decompress the jail for urgent
public health reasons.” Levin Dec. (dkt. no. 70) at 10.
A report from the more recent April 17 had not yet
been received by the Sheriff as of the April 23 hearing.
The Sheriff therefore submitted statements and testimony
from two Jail officials who participated in the April site
visit: Rebecca Levin, a senior public health advisor to
the Sheriff, and Michael Miller, the Executive Director
of the Cook County Department of Corrections. Levin
stated that during the April 17 inspection, the officials
commended the Jail’s efforts to reduce density in housing
units. Miller testified that the officials visited two of
the dormitory units—Dorm 4, the largest dormitory
unit, and Dorm 2—and commented positively about the
organization and cleanliness of these spaces.
In a declaration dated April 17, Miller also provided
an update to the Sheriff’s April 14 status report on
efforts to control the coronavirus outbreak at the Jail.
He reported that each person detained in a quarantine
tier was receiving a new surgical-type facemask each day.
Miller anticipated that at its current rate of consumption
of masks, the Sheriff would exhaust his supplies on June
7, 2020. He added that, “as supplies permit,” the Sheriff
45a
Appendix B
planned to distribute masks to detainees who are not on
quarantine tiers. Miller Dec., Def.’s Resp. to Renewed
Mot. for Prelim. Inj., Ex. E (dkt. no. 62-5) ¶ 24.
Although the TRO did not require the Sheriff to
implement social distancing beyond modifying his intake
procedures, Miller reported in his April 17 affidavit that
the Sheriff had engaged in a significant effort to increase
social distancing at the Jail. Specifically, he reported the
following measures: opening previously closed divisions
to better distribute detainees across available space;
converting housing on 175 tiers to single-occupancy cells
only; limiting dormitory units to fifty percent of capacity,
with the exception of detainees in medical or “restricted
housing,” Id. ¶ 12; and limiting the number of detained
persons released into dayroom common areas to half the
number assigned to that area. He reported that beds in
dormitory units have been spaced so that they are at least
six feet apart, and if beds are bolted to the floor, then
detained persons are distributed so that there is six feet
of distance between occupied beds.
Attached to Miller’s declaration was a spreadsheet
with the occupancy rates as of April 17 on each tier of
the Jail, including units in Cermak and Division 8, the
Residential Treatment Unit (RTU). Miller later explained
that the RTU provides twenty-four-hour access to medical
care and houses people who have medical needs (though
the level of need was not described). This spreadsheet
showed, apparently contrary to the statement in Miller’s
declaration, that some dormitory units were still occupied
above fifty percent capacity. For example, Tier D of Dorm
1 in Division 2, which was not then under quarantine, was
46a
Appendix B
occupied at eighty-one percent capacity. In addition, many
dormitory units in the RTU, Division 8, were occupied at
nearly full capacity. For example, Tier 2F was occupied at
ninety-seven percent capacity, and Tier 2G was occupied
at one hundred percent capacity. (Also, Tiers 2Q and 2R in
Division 6 were occupied at sixty percent and sixty-three
percent capacity, respectively. They are not labeled as
dormitory units in the spreadsheet, but they each have a
forty-person capacity.)
The Sheriff submitted additional evidence reflecting
that his ability to implement social distancing had
increased by virtue of, among other things, a significant
expansion of the electronic home monitoring program.
He offered a chart showing a steady decline in the Jail’s
daily population over the previous month, including a
reduction of roughly 230 detainees between April 9, when
the Court issued the TRO, and April 17. Another chart
showed a steady increase in the jail’s electronic home
monitoring population over the previous month, with an
increase of approximately 300 detainees on electronic
home monitoring between April 9 and April 17. The
Sheriff also offered evidence, however, that utilization of
this program had been extended to its outside limits, or
nearly so, in light of the apparent exhaustion of program
vendor’s supply of monitoring equipment.
3.
Plaintiffs’ reports regarding conditions at the
Jail
In anticipation of the preliminary injunction hearing,
the plaintiffs submitted a number of affidavits identifying
problems or deficiencies in the Sheriff’s compliance
47a
Appendix B
with the directives in the TRO. These affidavits were
from individuals who had spoken to detained persons
between April 14 and April 18, and they described these
persons’ current experiences at the Jail. According to
these affidavits, symptomatic individuals are not being
tested. Additionally, although facemasks are now being
distributed, detainees reported, it is not happening
regularly.
The detained persons discussed in the affidavits
also reported inadequacies in cleaning and sanitation
practices at the Jail. Several stated that detained persons
lack cleaning supplies for their individual cells and that
some common spaces lack cleaning supplies as well. And
even where cleaning solution is available, they reported,
cloths or wipes have not been provided to enable use of
the solution. A number of detainees also reported that
commonly used objects, such as telephones, are not being
sanitized between uses. In addition, they stated, the Jail’s
staff has not been cleaning cells, and some common areas
are cleaned only every other day, meaning they stand
uncleaned despite multiple uses and repeated touching
by numerous detained persons and potentially staff
personnel.
The detainees also reported an inability or great
difficulty in practicing social distancing. In common
areas where detained persons eat, several stated, it
has been impossible to practice social distancing due to
the arrangement of picnic-style benches. Tape or paint
markings have been placed on the floor in some dayrooms
to designate appropriate space for social distancing, but,
48a
Appendix B
they reported, some correctional officers have mocked
the practice of social distancing, and many have failed
to enforce it. By way of example, detained persons have
been using, at the same time, telephones that are spaced
only two feet apart.
C. The renewed preliminary injunction motion
In their renewed motion for a preliminary injunction,
filed on April 14, 2020, the plaintiffs contend that the
Sheriff’s efforts in response to the TRO “have not worked
and cannot work to abate the spread of the disease” caused
by the coronavirus. Pls.’ Renewed Mot. for Prelim. Inj.
(dkt. no. 55) at 4. The plaintiffs focus primarily on two
inadequacies of the Sheriff’s efforts to date: failure to
identify and transfer medically vulnerable detainees out
of the Jail, and insufficient social distancing, which, the
plaintiffs contend, “is the only way to prevent intolerable
risk to [their] health and lives.” Id. at 2.
The plaintiffs request the following in their renewed
motion for a preliminary injunction. First, they ask for a
preliminary injunction ordering the Sheriff to mandate
social distancing throughout the Jail. In support of this
request, the plaintiffs have submitted the declaration
of Dr. Gregg Gonsalves, an epidemiologist at the Yale
School of Medicine and School of Public Health, who
opined that social distancing is “the only way to prevent
further, essentially uncontrolled, spread of the virus” in
the Jail. Id., Ex. G (dkt. no. 55-7) ¶ 29. In the alternative,
the plaintiffs argue that if the Court concludes that
additional social distancing is not possible, an order should
49a
Appendix B
be entered requiring the Sheriff to transfer detained
persons to another safe facility, or the Court should
request convening a three-judge panel with the authority
to order the release of detainees, as required under the
Prison Litigation Reform Act . See 18 U.S.C. § 3626(a)(3)
(B). In addition, subclass A has renewed its request for
issuance of emergency writs of habeas corpus. 5
In response, the Sheriff argues that he has sufficiently
addressed the risks to the health of persons in his custody,
in accordance with constitutional requirements, through
the protective measures he has already implemented; his
efforts were consistent with the recommendations in the
CDC Guidelines; and he has taken substantial steps to
implement social distancing. The Sheriff also appears to
contend that further implementation of social distancing
was not realistically possible in the Jail at this time. In
response to the plaintiff’s contention that the Sheriff has
not adequately abated the risk of infection to medically
vulnerable detainees, he argues that he cannot screen such
individuals, because he does not have access to detained
persons’ health information. Furthermore, the Sheriff
has explained, he already refers all medical complaints
and issues to Cermak, and nothing more on his part is
required to satisfy the requirements of the Fourteenth
Amendment.
In their reply brief, the plaintiffs acknowledge that
the Sheriff has taken “dramatic steps” to increase social
5. The plaintiffs also sought expedited discovery, but that
largely became a moot point in light of later developments, so the
Court does not discuss the request here.
50a
Appendix B
distancing in the Jail. Pls.’ Reply in Supp. of Renewed
Mot. for Prelim. Inj. (dkt. no. 64) at 6. They contend,
however, that these efforts have been insufficient to
remedy the constitutional violation. They reaffirm their
request to immediately convene a three-judge court to
determine whether to release detained persons. They
also reaffirm their request for a preliminary injunction
mandating social distancing throughout the Jail as well as
transfer of detained persons to “some other safe location,”
id. at 2, and they ask the Court to issue such an order
contemporaneously with a request to convene a threejudge panel. Additionally, the plaintiffs ask the Court to
convert the TRO to a preliminary injunction.
1.
Hearing on motion for preliminary injunction
The Court held an evidentiary hearing on the
preliminary injunction motion by videoconference on
April 23, 2020. In light of the unusually compressed
time schedule necessitated by the development of the
coronavirus pandemic and increases in confirmed
coronavirus infections at the Jail, the Court determined
that it would consider the parties’ affidavits (giving due
consideration to issues regarding weight) and would permit
each side to call one live witness. Executive Director
Miller testified as the Sheriff’s witness; he offered, among
other things, updates to his April 17 affidavit regarding
the Sheriff’s efforts to manage the coronavirus outbreak.
With respect to screening medically vulnerable
detainees, Miller testified that the Jail was doing what it
could based on the limited medical information that it has
51a
Appendix B
available. Miller explained that Cermak conducts a medical
evaluation of every detained person at intake, and based
on this, it transmits information called “alerts” to the
Jail to inform housing decisions based on medical needs.
These alerts do not contain any diagnostic information;
rather, they simply specify the accommodations necessary
to address a medical need. For example, an alert from
Cermak may inform the Jail that a detained person
should be housed on a bottom bunk, but it will not state
the medical reason for this determination. Miller testified
that Cermak has not “yet” created an alert for those who
have heightened risk of severe health consequences from
a coronavirus infection. Without such an alert, Miller
explained that the Jail is conducting coronavirus screening
based on any medical information about a detained person
that it already has, including existing alerts.
Miller also reported that the Jail had made additional
efforts to implement social distancing. To encourage
persons housed in dormitory units to stay at their beds
rather than congregating in common spaces, the Jail
has been providing them with free books, writing pads,
and puzzle books. In addition, Miller stated, detainees
throughout the Jail are now released to use shared
shower facilities one at a time. In common areas, sixfoot intervals have been demarcated with spray paint
markings. Correctional officers, Miller said, have been
trained to enforce social distancing by first communicating
to detained persons the importance of maintaining the
distance, and if that fails, using disincentives such as
loss of microwave privileges. Miller acknowledged that
despite this, detainees have not always been practicing
52a
Appendix B
social distancing and that they continue to congregate in
common spaces such as eating areas.
Miller reported that the Jail’s staff has worked
diligently to increase the Jail’s ability to reduce the
density of the population in its housing units. Over the
past month, he stated, the Jail has opened up several
hundred additional housing units. Between April 17 and
April 23, the Jail doubled the number of detainees housed
in single-occupancy cells, and this effort included moving
260 detainees out of double-occupancy cells. Miller stated
that there are currently no detainees housed in doubleoccupancy cells without a medical or security reason.
Most of those who are still in double-occupancy cells, he
said, are either housed by Cermak or are designated by
Cermak as requiring placement in a double-occupancy cell
due to a health condition or possible suicide risk. Miller
did not explain why a health condition might require
placement in a double-occupancy cell. Some of those in
double-occupancy cells have been placed there, he said,
due to disorderly conduct—though, again, he did not
explain how double-celling serves a security purpose in
such situations. Miller acknowledged on cross examination
that social distancing is impossible for persons housed in
double-occupancy cells.
Miller also reported that roughly 1,000 detainees
are still being housed in dormitory units. He stated that
approximately seventy percent of that population must
remain in those units due to a medical need, though he
did not explain this. As for the remainder, Miller cited
one possible non-medical reason that some detainees must
53a
Appendix B
remain in dorm units: they are housed there in accordance
with requirements of the Prison Rape Elimination Act.
He explained that it would be “very challenging to try to
separate those individuals and keep them protected as we
need to under the PREA Act so that those individuals are
not vulnerable in other areas while they’re incarcerated.”
April 23, 2020 Tr. at 46-47. Again, however, Miller did not
explain this.
Miller supplemented his testimony with an updated
spreadsheet showing the occupancy of the Jail’s housing
units as of April 23. This spreadsheet showed that the
capacity of almost every tier that was not in Cermak,
the RTU, or under quarantine was fifty percent or
below. However, in Division 2, Tier D1-D was at eightyone percent capacity, and Tier D4-R was at fifty-nine
percent (Tier D3-B was right at fifty percent). A number
of Cermak and RTU tiers had occupancy rates as high as
ninety-seven or one hundred percent.
On cross examination, the plaintiffs’ counsel asked
Miller about the high occupancy levels in certain Cermak
and RTU tiers reported in the April 17 and April 22
spreadsheets. Miller explained that Cermak needed to
house those individuals together to be able to provide them
with access to care at all hours of the day or night. Miller
acknowledged that social distancing was not possible for
those housed in the Cermak and RTU tiers.
Plaintiffs’ counsel also asked Miller about a high
occupancy rate listed in the April 17 spreadsheet for a tier
(referenced above) that was not in Cermak, the RTU, or
54a
Appendix B
under quarantine: Tier D of Dorm 1 in Division 2, which
was then at eighty-one percent capacity. The April 22
spreadsheet showed that the dorm was still at the same
capacity. Miller stated: “There’s another security level
and/or issue with having this many people on this tier
that we’ve had to abide by.” Id. at 31. He did not clarify
the nature of the security issue. Miller acknowledged
that social distancing was not possible for detainees on
that tier.
When the Court asked Miller if there was still room
at the Jail to move more detainees out of dorms and into
cells, Miller responded, “I do have a plan in my back
pocket.” Id. at 57. He explained that he was working on
moving people out of Dorms 1, 2, and 3. He added that the
Jail is considering reconfiguring housing arrangements
on tiers for detainees who are women to see if there is a
way to create more capacity, presumably to disperse the
much larger population of detainees who are men.
As for cleaning and sanitation of common areas, Miller
reported that detainees have been given the supplies
they need to do sanitation; he attributed shortfalls in
sanitation to their own behavior. For example, he stated,
at each microwave stations and shared showers and toilets,
detained persons have been provided cleaning solution so
that they can sanitize the facility prior to use.
Finally, Miller stated, to ensure implementation of its
response measures, such as sanitation of common areas
or use of PPE, the Sheriff has deployed “audit teams”
that oversee these efforts. For example, the Jail has a
55a
Appendix B
PPE audit team that patrols PPE use and educates staff
members and detained persons who are not using PPE
properly.
Plaintiffs called as their hearing witness Dr. Homer
Venters, a medical doctor with over a decade of experience
in correctional health. Dr. Venters is the former Deputy
Medical Director of the New York City Jail Correctional
Health Service, a position in which he oversaw care of
detainees and medical policies governing care in New
York City’s twelve jails. He had previously submitted a
declaration along with plaintiffs’ preliminary injunction
reply brief. At the hearing, he testified that, in his view,
the Jail’s coronavirus response efforts have three key
deficiencies: (1) lack of a cohesive coronavirus response
plan; (2) failure to screen for individuals at higher risk
of experiencing severe health consequences from a
coronavirus infection; and (3) insufficient social distancing.
First, Dr. Venters explained that having a cohesive
plan, rather than a collection of policy documents that
address different aspects of emergency response,
is a critical first step to addressing an outbreak of a
communicable disease in a jail facility. He stated that
because jails are such complex systems, employing and
housing several thousand people, it is not possible to
respond to a large outbreak without a single, coordinate
plan that coordinates response measures implemented by
security, health, and administrative staff.
Second, Dr. Venters testified that screening medically
vulnerable individuals is critical so that they can
56a
Appendix B
immediately receive heightened surveillance of possible
symptoms of a coronavirus infection. This heightened
surveillance would entail daily checks on those individuals
for symptoms such as elevated temperature, shortness of
breath, and fatigue.
Third, Dr. Venters emphasized the importance of social
distancing in combatting the spread of coronavirus. In his
declaration, Dr. Venters stated that medical literature
on the coronavirus confirms that social distancing is an
essential strategy in controlling an outbreak. During
the hearing, he explained that because the coronavirus
spreads so easily through respiratory droplets emitted
from an infected person, transmission “is greatly impeded
by physical distance that we establish through social
distancing.” Id. at 67.
During his testimony, Dr. Venters emphasized that
practicing social distancing only in some specific areas of a
congregate setting like the Jail is insufficient to curb virus
transmission rates. Because people are densely packed in
many contexts during routine operations of a detention
facility—e.g., sleeping areas, dayrooms, shower facilities,
and areas where medication is dispensed—it is critical to
implement social distancing throughout the entire facility.
Dr. Venters explained that a “lack of a full commitment
or complete commitment to social distancing” in the Jail
would promote faster transmission of the coronavirus, and
more detainees and staff would become “seriously ill.” Id.
at 74. In his declaration, Dr. Venters had observed that the
concern about severe health effects is heightened when
considering detainees, because they are statistically more
57a
Appendix B
likely than the general public to have pre-existing health
problems such as cardiovascular disease and cancer.
Dr. Venters also discussed the importance of
communication with detainees and staff as a means
to ensure that they practice social distancing in
an appropriate way. Specifically, he said, to ensure
widespread observance of this practice, individuals must
understand what social distancing means and why it is
important.
On cross examination, Dr. Venters acknowledged
that outbreak management in a correctional setting
imposes “unique challenges,” id. at 79, and that the CDC
Guidelines are “now the most important set of principles”
on response, id. at 81. He also acknowledged that the CDC
Guidelines provide that social distancing might not always
be feasible in a correctional setting.
Dr. Venters testified that although use of singleoccupancy cells facilitates social distancing, doing so poses
a risk of increasing detainees’ psychological distress from
social isolation. He also testified that the Jail’s practice of
housing detainees with mental health conditions in doubleoccupancy cells is inappropriate, because they cannot
practice social distancing at all. Though these two concerns
point in opposite directions, Dr. Venters reconciled them
by clarifying that, in the current pandemic environment,
housing detainees in single-occupancy cells is preferable
to double-occupancy because social distancing is critical.
To address the psychological toll of isolation in singleoccupancy cells, Dr. Venters testified, the Jail should
58a
Appendix B
provide opportunities for detained persons to come out
of their cells and benefit from engagement with others in
common areas while practicing social distancing.
Dr. Venters’s testimony largely buttressed the points
made by several other medical doctors and epidemiologists
in affidavits and declarations that the plaintiffs had
attached to their complaint and briefing of this motion.
The plaintiffs’ medical, public health, and correctional
health experts have analogized the conditions in the Jail
to those on cruise ships, which have experienced some of
the largest concentrated outbreaks of the coronavirus.
Specifically, these experts observe, a jail, like a cruise
ship, is an environmentally enclosed, congregate-living
setting with high levels of movement of people. Mohareb
Dec., Pls.’ Reply in Supp. of Renewed Mot. for Prelim. Inj.,
Ex. B (dkt. no. 64-3) at 5; Gonsalves Dec., Pls.’ Renewed
Mot. for Prelim. Inj., Ex. G (dkt. no. 55-7) ¶¶ 17, 27; Med.
Profs.’ Dec., Compl., Ex. B (dkt. no. 1-2) ¶¶ 24, 25, 26.
In particular, Dr. Amir Mohareb, a medical doctor
who is a biothreat response expert and an instructor
at Harvard Medical School, used the example of the
Diamond Princess cruise ship to highlight the importance
of social distancing. The Diamond Princess sailed from
Japan to Hong Kong in January of this year. After one of
its passengers tested positive for the coronavirus in the
last week of January, “strict precautions of hand hygiene
and cabin isolation were implemented for all crew and
passengers.” Mohareb Dec. (dkt. no. 64-3) at 5. Despite
these efforts, 700 of the people who had been on the
ship tested positive for the virus over the course of the
59a
Appendix B
following month. This example, Dr. Mohareb, said, reflects
that in the context of a congregate living arrangement like
a cruise ship, hand hygiene and cabin cell isolation are
insufficient to control the transmission of the coronavirus.
He stated that a jail, which is similarly a congregate
environment, “constitutes an equal or greater risk setting
to that of a cruise ship.” Id.
Dr. Mohareb explained that because respiratory
droplets emitted by an infected person can travel up to
six feet and be inhaled by another, social distancing is “a
necessary intervention to prevent the spread of infection”
from the coronavirus. Id. at 3, 6. He emphasized that social
distancing is particularly important because an infected
person may be mildly symptomatic or not symptomatic at
all. Dr. Mohareb also noted that numerous authoritative
bodies, including the CDC, the World Health Organization,
and the Infectious Diseases Society of America, have
recommended social distancing to control the transmission
of coronavirus. He added that mathematical modeling
supports a conclusion that social distancing is “the primary
means by which individuals can be safely protected from
the threat of COVID-19.” Id. at 5.
All of the plaintiffs’ expert affidavits emphasized the
critical need to implement social distancing in order to
meaningfully control the spread of the virus. Gonsalves
Dec. ¶ 29 (social distancing is the “only way” to control
outbreak); see also Rasmussen-Torvik Dec., Pls.’ Reply
in Supp. of Renewed Mot. for Prelim. Inj., Ex. C (dkt.
no. 64-4) ¶ 9. They reiterated Dr. Venters’s point that
the very design of a correctional facilities promotes
60a
Appendix B
transmission of the coronavirus because it densely packs
large groups of people together. Dr. Gonsalves stated
that although correctional facilities are like cruise ships
in that they are enclosed environments, they present an
even higher risk of rapid transmission of the coronavirus
because of “conditions of crowding, the proportion of
vulnerable people detained, and often scant medical care
resources.” Gonsalves Dec. ¶ 17. In a joint declaration, five
medical doctors with experience working in a correctional
setting—including three doctors who had worked at the
Jail—similarly observed that the “crowded congregate
housing arrangements” of jails and prisons promote the
transmission of respiratory illnesses like the coronavirus
disease. Med. Profs.’ Dec. (dkt. no. 1-2) ¶ 24.
Beyond providing additional support for the points in
Dr. Venters’s testimony, the plaintiffs’ other medical and
public health experts added that the risks of severe health
consequences from a coronavirus infection are not limited
only to those who have preexisting medical conditions or
are over the age of sixty-five. According to Dr. Gonsalves,
“young and healthy individuals may be more susceptible
than originally thought.” Gonsalves Dec. ¶ 5. He reported
that in March, the CDC reported that one-fifth of infected
people between the ages of twenty to forty-four had been
hospitalized. Dr. Mohareb also stated that “a fraction of
patients with COVID-19 in all groups go on to develop
severe respiratory disease.” Mohareb Dec. at 1.
At the conclusion of the April 23 preliminary injunction
hearing, the Court extended the TRO, which was set to
expire that day, pending its ruling on the motion for a
preliminary injunction.
61a
Appendix B
Discussion
“A preliminary injunction is an extraordinary
remedy.” Whitaker v. Kenosha Unified Sch. Dist. No. 1
Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). A court’s
determination of whether to issue a preliminary injunction
or temporary restraining order involves a two-step
inquiry, with a threshold phase and a balancing phase. Id.
First, the party seeking the preliminary injunction has to
make a threshold showing, which has three elements: (1)
reasonable likelihood of success on the merits of the claim;
(2) irreparable harm to the movant absent preliminary
injunctive relief; (3) lack of adequate remedies at law. Id.
If the movant makes the threshold showing, the court
proceeds to the balancing step, in which it determines
“whether the balance of harm favors the moving party or
whether the harm to other parties or the public sufficiently
outweighs the movant’s interests.” Id.
Because they request relief that changes the status
quo or requires the Sheriff to take affirmative action, the
plaintiffs are requesting what is sometimes referred to as
“mandatory” preliminary injunctive relief. See Graham
v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997);
O’Malley v. Chrysler Corp., 160 F.2d 35, 37 (7th Cir. 1947);
cf. Schrier v. Univ. Of Co., 427 F.3d 1253, 1260 (10th Cir.
2005) (“[D]etermining whether an injunction is mandatory
as opposed to prohibitory can be vexing.”). Mandatory
preliminary injunctions typically are “cautiously viewed
and sparingly issued.” Graham, 130 F.3d at 295 (quoting
Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)); see
also Knox v. Shearing, 637 F. App’x 226, 228 (7th Cir.
62a
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2016). But “there may be situations justifying a mandatory
temporary injunction compelling the defendant to take
affirmative action” based on the circumstances, Jordan,
593 F.2d at 774, and “the clearest [of] equitable grounds,”
W. A. Mack, Inc. v. Gen. Mo
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