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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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.

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Case No. 20 C 2134

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge: 1
Anthony Mays and Kenneth Foster 2 are pretrial detainees at Cook County Jail in
Chicago, Illinois. On behalf of themselves and a putative class, they have sued the
Cook County Sheriff Thomas Dart, who operates the Jail, alleging that he has violated
their rights under the Fourteenth Amendment by failing to provide them with reasonably
safe living conditions in the face of the current coronavirus pandemic. The plaintiffs
assert claims under 42 U.S.C. § 1983 and for writs of habeas corpus under 28 U.S.C. §
2241. They have moved for entry of a temporary restraining order requiring the Sheriff

1

Judge Kennelly is addressing this matter as emergency judge pursuant to paragraph
5 of Second Amended General Order 20-0012.

2

The claim for Foster is brought by Judia Jackson, his next friend, because plaintiffs'
counsel attempted to contact Foster by telephone but were unable to reach him due to
the Jail's operational limits arising out of the coronavirus pandemic.

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to take additional precautions to stem the spread of coronavirus into and within the Jail.
Ultimately, plaintiffs contend, they cannot be held at the Jail in a way that is consistent
with their constitutional rights—though they do not seek outright release from custody
as part of their motion for a temporary restraining order. Rather, they seek changes in
the Sheriff's policies, including in how they are carried out, as well as, for one proposed
subclass, a change in the locations where they are kept in custody. See Emerg. Mot.
for Temp. Restraining Order of Prelim. Inj., dkt. no. 2, at 15-16, 17–19 (spelling out the
relief sought on the request for a TRO).
The Court begins by acknowledging the importance of the issues presented by
the parties. The Sheriff is responsible for operating and administering 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. This is an extraordinarily difficult task. The detainee 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. And it
also runs the gamut from young, healthy persons to older detainees with serious
medical or mental health issues. Operating the Jail, even under normal circumstances,
is a very challenging task that occupies a large, full-time staff of policymakers, subject
matter experts, and front-line correctional officers, medical and mental health workers,
counselors, and others. And these are not normal circumstances. Fashioning a public
policy and public health response to the coronavirus pandemic has challenged
government officials across our country and throughout the world, who are facing a

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crisis unlike any we have faced for decades, and perhaps generations. The task is no
less difficult, and no less unfamiliar, for administrators of jails.
This does not mean, however, that constitutional protections fall by the wayside.
Government officials in our country are bound by constitutional requirements even when
they are dealing with difficult and unfamiliar challenges to public health and safety.
Persons accused of crimes who are detained pending trial do not shed their
constitutional rights at the jailhouse door. The government has determined to lock them
up pending determination of their guilt or innocence, and by doing so the government
takes on an obligation to protect their health and safety. And it cannot be forgotten that
by requiring this, we safeguard the health and safety of the community at large—from
which the detainees have come and to which they and the officers guarding them will
return.
In light of these considerations, and for the reasons stated below, the Court
issues a temporary restraining order, though considerably narrower than the order the
plaintiffs have requested. In particular, the Court declines the plaintiffs' request to
require the Sheriff to move certain of them to other forms of custodial arrangements
such as home incarceration.
Background
Mays and Foster have serious medical conditions that make them highly
vulnerable to complications arising from what has been termed COVID-19, a novel form
of coronavirus that is causing a global pandemic. (The Court will use the term
coronavirus.) As of this morning, 432,550 Americans and over 1,502,610 people
around the world have been diagnosed with the virus—figures that understate its

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spread, as they include only those who have managed to get tested.

See Coronavirus

Resource Center, Johns Hopkins Univ. & Med., https://coronavirus.jhu.edu/ (last
updated April 9, 2020, 8:38 A.M.). Over 89,910 have died, including over 14,800
Americans. Id. At present, there is no known cure and no known vaccine.
People over the age of 65 and people of all ages with serious underlying medical
conditions face an elevated risk of suffering from severe illness if they contract
coronavirus. Because the virus spreads more rapidly when people are in close contact
with each other, government officials have drastically reduced activity involving personto-person contact in cities, nations, and economies around the world, including Chicago
and Illinois.
Reducing the spread of the virus is, however, especially challenging in jails and
prisons. The Cook County Jail is a complex where, at any given time, thousands of
detainees live in either barracks-style dormitories, shared cells, or individual cells as
they await trial on the crimes of which they have been accused. As of April 8, 2020, 251
detainees and 150 employees at the Jail have tested positive for coronavirus, and one
detainee has died of apparent complications from it. See COVID-19 Cases at CCDOC,
Cook County Sheriff's Office, https://www.cookcountysheriff.org/covid-19-cases-atccdoc/ (last updated April 8, 2020, 5:00 P.M.). While the Court was drafting this
opinion, the news broke that the Jail is the largest single known source of infections in
the nation. 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/coronavirus-cook-county-jail-chicago.html (last
updated April 9, 2020, 8:47 A.M.).

The plaintiffs allege that conditions at the Jail—

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including, for example, the very close proximity in which detainees are held in the Jail’s
housing divisions and intake areas, inadequate distribution of soap and sanitation
supplies for detainees, and a lack of personal protective equipment (PPE) for detainees
who have been exposed to others with symptoms of the virus—violate constitutional
requirements.
On April 3, 2020, the plaintiffs filed this lawsuit. In Count 1, they allege, under 42
U.S.C. § 1983, that the Sheriff has violated their Fourteenth Amendment right to
constitutionally adequate living conditions by failing to implement appropriate measures
to control the spread of the virus. In Count 2, they petition for writs of habeas corpus
through 28 U.S.C. § 2241 because, they contend, they cannot constitutionally be
detained at the Jail during the pandemic.
At the same time the plaintiffs filed suit, they moved to certify a class consisting
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. They also
requested certification of two subclasses. "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 has already tested positive for the coronavirus." Id. ¶ 62.
The plaintiffs also immediately moved for a temporary restraining order or
preliminary injunction requiring implementation of specified preventive and protective
measures at the Jail. See Emerg. Mot. for Temp. Restraining Order of Prelim. Inj., dkt.
no. 2, at 15-16. The measures that the plaintiffs seek to implement would require the
Sheriff to triage medically vulnerable detainees, enable social distancing, provide

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detainees with adequate supplies for sanitation and handwashing, distribute PPE to
detainees, and take additional steps when quarantining and isolating symptomatic of
coronavirus positive detainees, among other things. And, as indicated, their motion
seeks relocation of certain class members to other custodial locations. On April 7,
2020, the Court held a hearing on the motion, at which counsel appeared and argued
via telephone.
Discussion
A.

Conditional class certification
The plaintiffs seek classwide relief in the form of a temporary restraining order,

but because the lawsuit was just filed there has not yet been a class certification ruling.
This does not foreclose the possibility of relief for the plaintiffs at this stage, because a
district court has general equity powers allowing it to grant temporary or preliminary
injunctive relief to a conditional class. Lee v. Orr, No. 13 CV 8719, 2013 WL 6490577,
at *2 (N.D. Ill. Dec. 10, 2013) (citing Ill. League of Advocates for the Developmentally
Disabled v. Ill. Dep't of Human Servs., No. 13 C 1300, 2013 U.S. Dist. LEXIS 90977, at
*10-11 (N.D. Ill. June 28, 2013)); see also Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4
(9th Cir. 2020); Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012)
("[T]here is nothing improper about a preliminary injunction preceding a ruling on class
certification."); Howe v. Varity Corp., 896 F.2d 1107, 1112 (8th Cir. 1990). Furthermore,
Federal Rule of Civil Procedure 23(b)(2) "does not restrict class certification to instances
when final injunctive relief issues" and permits certification of a conditional class for the
purpose of granting preliminary injunctive relief. Meyer v. Portfolio Recovery Assocs.,
LLC, 707 F.3d 1036, 1043 (9th Cir. 2012); see also Howe, 896 F.2d at 1112 (affirming

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grant of a preliminary injunction to a conditional class).
Under Rule 23(a), the four prerequisites for class certification are numerosity,
commonality, typicality, and adequate representation. Beaton v. SpeedyPC Software,
907 F.3d 1018, 1025 (7th Cir. 2018). "Once these four prerequisites are satisfied, the
potential class must also satisfy at least one provision of Rule 23(b)." Rosario v.
Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). The plaintiffs have made a sufficient
showing for conditional certification of Subclasses A and B for the purpose of the
present motion for a temporary restraining order.
As for the first prerequisite, numerosity, there is "no magic number" that is
regarded as sufficient, but forty is generally accepted as sufficient to satisfy Rule 23(a).
Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017). It is
undisputed that there are over 4,000 detainees in the Jail, and the plaintiffs cite
statistics that in incarcerated populations, on average 15 percent of the detainees have
asthma, 10 percent have heart conditions, 10 percent have diabetes, and 30 percent
have hypertension. Applying even the lowest of these percentages to the detainee
population of over 4,000 yields hundreds of detainees with medical conditions that
heighten the risk of harm from a coronavirus infection. This is sufficient to establish
numerosity for conditional certification of Subclass A. As for Subclass B, the plaintiffs
have likewise sufficiently demonstrated numerosity for purposes of conditional
certification. Over two hundred detainees have tested positive for coronavirus, and
most detainees are housed in tiers which are shared with anywhere from forty to several
hundred other detainees. This is sufficient to show that there are likely far more than
forty detainees in proposed Subclass B.

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There is also commonality with respect to the claims of Subclass A member and
Subclass B members. Commonality requires at least one question common to all the
class members, the answer to which is “apt to drive the resolution of the
litigation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Both subclasses'
claims turn on a common question of whether detainees are facing an unconstitutional
risk of harm to their health due to conditions in the Jail that facilitate the spread of
coronavirus and the absence of protections adequate to stem its spread.
The Seventh Circuit has explained that a named plaintiff's claims are typical if
they "arise[ ] from the same event or practice or course of conduct that gives rise to the
claims of other class members and [are] based on the same legal theory." Lacy v. Cook
County, 897 F.3d 847, 866 (7th Cir. 2018). The claims of the named plaintiffs here are
typical of the class, because the named plaintiff and the members of the class all
contend that they face a serious risk of contracting coronavirus due to the Jail's
allegedly deficient living conditions and precautions, and they and the class seek the
same relief. In addition, the named plaintiffs' claims are typical of the putative members
of Subclass A, who all contend that they face an elevated risk of experiencing
complications if they contract coronavirus, and of the putative members of Subclass B,
who all claim exposure at the Jail to someone who has already tested positive.
There is also adequate representation of both subclasses by Foster. Under this
requirement of Rule 23(a), the named plaintiff must be a member of the putative class
and must have the same interest and injury as other members. Beaton, 907 F.3d at
1027. Foster alleges that he faces heightened risk of harm from coronavirus infection
because he suffers from stomach cancer, lung disease, asthma, and bronchitis, so he is

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a member of putative Subclass A. And because several people on Foster's tier have
tested positive for coronavirus, he is also a member of putative Subclass B. Foster
shares an interest with members of both subclasses in relief from the jail conditions that
the classes allege have put them at risk severe risk of health harm from coronavirus.
In sum, the requirements of Rule 23(a) are sufficiently met to allow provisional
certification of both subclasses for purposes of the motion for temporary restraining
order.
Rule 23(b)(2) permits class actions if "the party opposing the class has acted or
refused to act on grounds that apply generally to the class," so that injunctive or
declaratory relief is appropriate for the class as a whole. The plaintiffs satisfy this
requirement because they seek "the same . . . injunctive relief for everyone" in the class
and in each subclass. See Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi.,
797 F.3d 426, 442 (7th Cir. 2015).
For these reasons, the Court conditionally certifies Subclasses A and B for the
purpose of the motion for a temporary restraining order.
B.

Temporary restraining order
The Court addresses in this decision only the plaintiffs' motion for a temporary

restraining order, not their motion for a preliminary injunction. One reason is that the
motion involves at least some disputed facts that potentially require an evidentiary
hearing before they may be determined. See Dexia Credit Local v. Rogan, 602 F.3d
879, 884 (7th Cir. 2010); Promatek Indus., Ltd. v. Equitrac Corp., 300 F.3d 808, 814
(7th Cir. 2002), as amended (Oct. 18, 2002); Syntex Ophthalmics, Inc. v. Tsuetaki, 701
F.2d 677, 682 (7th Cir. 1983). The motion for preliminary injunction is therefore left for

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later consideration.
The standard for issuing a temporary restraining order is identical to that
governing the issuance of a preliminary injunction. Trs. of Chi. Reg'l Council of
Carpenters Welfare Fund v. Norem, No. 17 C 4851, 2017 WL 4620798, at *2 (N.D. Ill.
Oct. 16, 2017) (citing Long v. Bd. of Educ., Dist. 128, 167 F. Supp. 2d 988, 990 (N.D. Ill.
2001)). 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. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d
1034, 1044 (7th Cir. 2017). At the threshold phase, the moving party must show: (1)
without the requested relief, he will suffer irreparable harm during the pendency of his
action; (2) traditional legal remedies would be inadequate; and (3) he has some
likelihood of success on the merits. Id. If the movant satisfies these requirements, the
court proceeds to the balancing analysis "to determine whether the balance of harms
favors the moving party or whether the harm to other parties or the public sufficiently
outweighs the movant’s interests." Id.
The Court also notes that the plaintiffs are arguably seeking what is sometimes
referred to as a "mandatory injunction," that is, a restraining order that requires an
affirmative act by the defendant. Mandatory injunctions are "ordinarily cautiously
viewed and sparingly issued." Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th
Cir. 1997).
1.

Likelihood of success on the merits

The moving party "need not demonstrate a likelihood of absolute success on the
merits." Whitaker, 858 F.3d at 1046. A "better than negligible" chance of success is

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sufficient. Id. (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)).
a.

Habeas corpus

Plaintiffs and subclass A have petitioned for a writ of habeas corpus under 28
U.S.C. § 2241, which is the appropriate way for a state pre-trial detainee to challenge
his or her detention. Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015).
"Because a pre-trial detainee is not yet in custody pursuant to the judgment of a State
court, relief under 28 U.S.C. § 2254 is not available." Id. (internal quotation marks
omitted).
Section 2241 has no express exhaustion requirement, but courts apply a
common-law exhaustion rule. Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004).
A pretrial detainee must "exhaust all avenues of state relief" before seeking a writ of
habeas corpus through a section 2241 action. See United States v. Castor, 937 F.2d
293, 296–97 (7th Cir. 1991). Although there are exceptions, "the hurdle is high."
Richmond, 387 F.3d at 604. In deciding whether an exception applies, courts "must
balance the individual and institutional interests involved, taking into account 'the nature
of the claim presented and the characteristics of the particular administrative procedure
provided.'" Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting
McCarthy v. Madigan, 503 U.S. 140, 146 (1992), superseded by statute on other
grounds as recognized in Porter v. Nussle, 534 U.S. 516 (2002)). A court may excuse
exhaustion where:
(1) requiring exhaustion of administrative remedies causes prejudice, due
to unreasonable delay or an indefinite timeframe for administrative action;
(2) the agency lacks the ability or competence to resolve the issue or grant
the relief requested; (3) appealing through the administrative process
would be futile because the agency is biased or has predetermined the
issue; or (4) where substantial constitutional questions are raised.
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Id.; see also Chazen v. Marske, 938 F.3d 851, 863 (7th Cir. 2019) (applying futility
exception).
It is undisputed that a state court has the authority to release a pretrial detainee.
A detainee in Illinois may challenge his or her detention by seeking judicial review of his
or her bond. 725 Ill. Comp. Stat. Ann. 5/110-6. 3 And on March 23, 2020, in response to
an emergency petition filed by the Cook County Public Defender, the Presiding Judge of
the Cook County Circuit Court's Criminal Division issued an order setting out an
expedited bond hearing process that applied to seven designated classes of detainees.
Defs.' Resp., Ex. E (dkt. no. 31-1) at 1-2. The classes included those at an elevated risk
of contracting coronavirus due to their ages or underlying medical conditions—that is,
the putative members of Subclass A. Id. The expedited hearings took place from
March 24 through March 27. Id. at 3–5. Although the expedited hearings do not appear
to be currently ongoing, Cook County's courts are still available for emergency matters,
and judges are hearing motions to review or reduce bail daily at all locations where
court is held. Defs.' Supp. Resp., Ex. A (dkt. no. 41-1) at 1.
The plaintiffs do not contend that they sought expedited bond hearings or
initiated any sort of state proceedings challenging their bonds. 4 Instead, they contend

3

At the hearing held on April 7, 2020, though not in their supplemental brief filed after
the hearing, the plaintiffs advanced another futility argument, specifically that the risk to
their health could not be asserted as a basis to allow release on bond. The argument is
unsupported, and it is undercut by the numerous bond reductions and releases that
have taken place in recent weeks, largely as a result of the coronavirus outbreak.
4

At the hearing, but not in any of their briefs, the plaintiffs suggested that the Public
Defender's motion could serve to exhaust their claims. But they were not named parties
to that motion and, regardless, the state court's ruling on that motion would undermine
their argument because it made possible an additional avenue of relief.
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that exhaustion is futile because the bond review process does not move quickly
enough. The defendants, in turn, contend that the plaintiffs should have sought
reductions of their bonds through the expedited and/or emergency hearings that were
available, may now seek release via other established processes, and that these
processes are not futile.
The plaintiffs in subclass A cannot show that they exhausted available state
court remedies before petitioning for habeas corpus. As indicated, the plaintiffs have
not sought bond reductions at all. And the record reflects that this process is anything
but futile. During the week the expedited bond hearings were held, the Jail's population
decreased by 424 detainees. Defs.' Resp., Ex. B (dkt. no. 30-2) ¶ 27. Since March 9,
the Jail's population has decreased by 1,175 detainees—bringing it to a record low, at
least for the past few decades—and even since the completion of the expedited bond
hearing process, the Jail's population has decreased by over 265 detainees. E.g., id. ¶¶
10, 28–29.
Nor have the plaintiffs established that the existing and available process for
review of their detention is unduly time-consuming in a way that undermines their
claimed constitutional rights. They say the process, in its entirety, could take several
weeks or months. But this assumes a given detainee will lose at every stage and will
have to appeal all the way to the state supreme court. In the Court's view, it is rather
incongruous to call an otherwise available process unnecessarily time-consuming or
futile when one has made no effort to initiate it. More to the point, the plaintiffs point to
no evidence that detainees who have sought bond hearings are currently facing undue
delays. Thus although a court may excuse exhaustion in unusual circumstances if it

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would cause an unreasonable delay, see, e.g., Gonzalez, 355 F.3d at 1016, the
plaintiffs have not made the necessary showing. And to the extent they contend that
the requirement of exhaustion should be excused due to the nature of the constitutional
questions they raise, they have made no showing that the state courts cannot remedy
these claimed violations.
In sum, the habeas corpus claim on the part of the representatives of subclass A
is barred due to their failure to exhaust available state court remedies. As a result, the
subclass has no likelihood of success on the merits. 5 This renders moot the plaintiffs'
request for the Court to establish a procedure for the expedited consideration of release
of the members of subclass A, which the plaintiffs sought only with respect to the
habeas corpus claim.
Though this determination renders the parties' other arguments regarding habeas
corpus superfluous, the Court will address certain of them to ensure a more complete
record and to eliminate issues from the need for future consideration. First, the parties
dispute whether detainees can even challenge the conditions of their confinement
through section 2241—an issue that has also divided courts. Compare, e.g., Aamer v.
Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (a prisoner may challenge the conditions
of his confinement in a federal habeas corpus petition) and Thompson v. Choinski, 525
F.3d 205, 209 (2d Cir. 2008) (same) with Spencer v. Haynes, 774 F.3d 467, 469–70
(8th Cir. 2014) (section 2241 petitions may not challenge conditions). The Seventh

5

If the plaintiffs wish to seek prompt appellate review of this ruling, the Court is willing to
consider dismissing Count 2 of their complaint for failure to exhaust and certifying the
ruling for immediate appeal under 28 U.S.C. § 1292(b). Any such request should be
presented to the undersigned judge in his capacity as emergency judge.
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Circuit has expressed a "long-standing view that habeas corpus is not a permissible
route for challenging prison conditions," at least when a prisoner's claim does not have
"even an indirect effect on the duration of punishment." Robinson v. Sherrod, 631 F.3d
839, 840–41 (7th Cir. 2011). But the Seventh Circuit has also noted that "the Supreme
Court [has] left the door open a crack for prisoners to use habeas corpus to challenge a
condition of confinement." Id. at 840 (internal quotation marks omitted) (citing Glaus v.
Anderson, 408 F.3d 382, 387 (7th Cir.2005); Nelson v. Campbell, 541 U.S. 637, 644–46
(2004); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Preiser v. Rodriguez, 411 U.S.
475, 499–500 (1973)). Were the Court required to address this point, it would not
consider it to be an absolute bar to plaintiffs' motion for a temporary restraining order.
The plaintiffs' claims, as they have framed them, do bear on the duration of their
confinement (they contend, ultimately, that they cannot be held in the Jail consistent
with the Constitution's requirements), and they are not the sort of claims that are, or can
be, appropriately addressed via a claim for damages. The Court need not, however,
decide this point definitively at this point.
Next, the Sheriff argues that he has no authority to release detainees because,
he contends, only the criminal trial court has authority to release a person in custody.
Citing the Illinois County Jail Act, 730 Ill. Comp. Stat. Ann. 125/14, the Sheriff contends
that he can transfer pretrial detainees—which, his counsel conceded at the hearing
(contrary to statements in the Sheriff's brief), could include placing them in home
custody—but that he lacks authority to release them outright. This argument has no
bearing on the petition for habeas corpus. The issuance of writ of habeas corpus
through a section 2241 petition is a federal remedy (in other words, it does not depend

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on state law), and a habeas corpus petition is always addressed to the prisoner's
custodian, in this case the Sheriff. Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004)
("Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody
within the United States, he should name his warden as respondent."). Whether the
Sheriff has authority under state law to release detainees on his own does not matter.
Finally, the Sheriff also suggests that the subclass A plaintiffs' habeas corpus
petition is barred by Younger v. Harris, 401 U.S. 37 (1971), which "requires federal
courts to abstain from interfering with pending state proceedings to enforce a state's
criminal laws and certain other types of law as well." Sweeney v. Bartow, 612 F.3d 571,
573 (7th Cir. 2010). Although the Seventh Circuit has held that Younger abstention may
apply to a habeas corpus petition, id., there is no basis to abstain here, as there is no
pending state proceeding. The Sheriff's real argument is non-exhaustion, not Younger
abstention.
b.

Section 1983 claim

The Fourteenth Amendment protects pretrial detainees, who are entitled to a
constitutional presumption of innocence, from being held in conditions that amount to
punishment. Miranda v. County of Lake, 900 F.3d 335, 350-51 (7th Cir. 2018).
Analysis of a due process challenge to conditions of confinement involves two
steps. See Miranda, 900 F.3d at 353. The first is a determination of whether the
defendant's conduct was purposeful, knowing, or "perhaps even reckless[]," id., with
respect to the "physical consequences in the world" of his conduct. Kingsley v.
Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2472 (2015). The conditions created by
the defendant's conduct must be, "from an objective standpoint, sufficiently serious."

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See Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016). 6 The second step is an
assessment of the reasonableness of the defendant's conduct, in light of the "totality of
facts and circumstances" facing the defendant. McCann v. Ogle County, 909 F.3d 881,
886 (7th Cir. 2018). The reasonableness of the defendant's conduct is measured
objectively "without regard to any subjective belief held by the [defendant]." Id.
i.

Knowing conduct and seriousness of conditions

The Sheriff does not dispute that his establishment of certain policies and his
non-establishment of others that are sought amounts to knowing conduct; at the
hearing. For a condition created by a defendant's conduct to be "sufficiently serious" to
violate a detainee's Fourteenth Amendment rights, the defendant's knowing acts or
omissions must result "in the denial of the minimal civilized measure of life's
necessities." See Gray, 826 F.3d at 1005 (quoting Farmer v. Brennan, 511 U.S. 825,
834 (1994)). Actual, present harm is not required; conditions that pose an
"unreasonable risk of serious damage to the [detainee's] future health" may violate a
detainee's Fourteenth Amendment rights. See Henderson v. Sheahan, 196 F.3d 839,
847 (7th Cir. 1999). To determine if conditions of confinement pose an "unreasonable
risk" to pretrial detainees' future health, a court must make a "scientific and statistical
inquiry into the seriousness of the potential harm and the likelihood that such injury to

6

The claim in Gray was brought by a convicted prisoner, not a pretrial detainee, and
therefore his claim was governed by the Eighth Amendment, not the Fourteenth
Amendment. The analyses of conditions-of-confinement claims under Fourteenth
Amendment and Eighth Amendment overlap in the assessment of whether the
conditions were sufficiently severe, but they diverge in the assessment of the propriety
of the defendant's conduct: the standard is subjective for Eighth Amendment claims
(which require a showing of deliberate indifference) and objective for Fourteenth
Amendment claims (which require a showing of unreasonableness). See Hardeman v.
Curran, 933 F.3d 816, 822 (7th Cir. 2019).
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health will actually be caused" by the conditions. Id. A court must also consider
whether the risk of harm was "not one that today's society chooses to tolerate." Id.
The plaintiffs are reasonably likely to succeed in showing that at least some of
the conditions they cite pose an unreasonable risk to their future health. See id. The
scientific evidence in the record— including the Center for Disease Control's Interim
Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional
and Detention Facilities ("CDC Guidelines") and a declaration from medical doctors
submitted by the plaintiffs—reflects that coronavirus is highly contagious, persists in the
environment, and may be hard to detect by observation of symptoms only. The virus
apparently spreads easily, through coughing or sneezing; droplets with the virus can
remain in the air for up to three hours. Additionally, and importantly for purposes of the
present case, coronavirus apparently persists on plastic and stainless steel surfaces for
up to two to three days. Those who have been infected with the virus may not become
symptomatic for up to fourteen days. In light of these qualities and the present lack of a
vaccine or cure for the virus, frequent handwashing, social distancing, sanitation of
surfaces, and the use of PPE are the only available methods to protect against
coronavirus infection.
In the context of this evidence, the plaintiffs have demonstrated that certain of the
conditions created by the intentional actions of the Sheriff enable the spread of
coronavirus and significantly heighten detainees' risk of contracting the virus. First, the
affidavits from current and recently released detainees reflect that Sheriff's personnel
have not been cleaning common spaces after a detainee on the tier has tested positive

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for coronavirus. 7 The affidavits submitted by the plaintiffs also reflect that detainees are
being housed under conditions that make social distancing impossible, thereby
facilitating the spread of coronavirus. Many detainees are in congregate living
situations, in which anywhere from forty to over a hundred detainees are housed in a
single room. The beds in these open living spaces are very close together, separated
by only one to four feet. And detainees who are housed in single- or dual-occupancy
cells still must use common bathroom facilities, which are typically shared by forty to
fifty people, including large groups at a single time.
The affidavits submitted by the plaintiffs further suggest that detainees currently
lack the means to attempt to protect themselves from a potential coronavirus infection.
Although they are sharing tier with someone who has tested positive for coronavirus,
the plaintiffs contend, the Sheriff has not provided them with adequate supplies of soap,
with cleaning supplies, or with PPE such as facemasks. The record reflects that only
symptomatic detainees have been issued facemasks and that detainees otherwise have
not received any PPE. The plaintiffs' affidavits reflect that requests for facemasks have
been refused by Jail personnel and that when detainees have resorted to making their
own masks from cloth, those masks have been confiscated.
The plaintiffs also contend that the Jail is not screening its population to identify,
and separate, detainees who have heightened vulnerability to coronavirus disease due

7

Although the Sheriff objects that many of the plaintiffs' affidavits contain hearsay, it is
well established that a Court may consider hearsay in ruling on a preliminary injunction
motion (and thus on a motion for a temporary restraining order). See SEC v. Cherif,
933 F.2d 403, 412 n.8 (7th Cir. 1991).

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to age or preexisting medical conditions. As a result, the plaintiffs contend, those
detainees are housed, and will in the future be housed, in tiers where a detainee has
tested positive. The plaintiffs argue that this places these vulnerable detainees at a
high risk of severe health consequences.
The statistical evidence that exists also indicates that the conditions at the Jail
have created a significant and unreasonable risk to the plaintiffs' future health. The Jail
currently has the highest rate of new coronavirus infections in the country, and it far
exceeds that of Cook County. As of April 6, 2020, the infection rate in Cook County was
1.56 per 1000 people, whereas in the Jail, it was 50 per 1,000 people. The disparity
between these rates tends to support the contention that the conditions at the Jail
facilitate the spread of coronavirus and exacerbate the risk of infection for detainees.
The plaintiffs have shown a reasonable likelihood of success on their contention
that at least some current conditions at the Jail relating to the Sheriff's response to the
coronavirus outbreak collectively create a risk of harm from coronavirus that is "not one
that today's society chooses to tolerate." See Sheahan, 196 F.3d at 847. In recognition
of the importance of social distancing, Illinois' governor has instituted a statewide stayat-home order. Frequent handwashing, use of PPE such as facemasks, and sanitizing
of commonly used surfaces have, in the past several weeks, become routine
precautions employed by the general population. Under the circumstances, plaintiffs
are reasonably likely to succeed on their contention that conditions at the Jail create an
unreasonable risk to their health that is sufficiently serious to bring their due process
rights into play, thus requiring assessment of the reasonableness of the Sheriff's
actions.

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ii.

Objective reasonableness

Objective reasonableness is assessed from the perspective of "a reasonable
[official] on the scene," based on what the officer knew at the time, Kingsley, 135 S. Ct.
at 2473; from that perspective a court determines if the official acted reasonably to
mitigate the risks to health and safety of the detainees. See Hardeman, 933 F.3d at
825; see also Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). In assessing the
reasonableness of the Sheriff's conduct, the Court must account for his legitimate
interest in managing the Jail facilities and must defer to policies and practices that "are
needed to preserve internal order and discipline and to maintain institutional
security." Kingsley, 135 S. Ct. at 2473 (quoting Bell, 441 U.S. at).
The Sheriff argues that his conduct has been objectively reasonable because he
has promulgated policies and procedures intended to implement the CDC Guidelines,
which both parties have expressly relied upon as a guide to assessing the
reasonableness of the Sheriff's conduct. The establishment of a policy that is consistent
with authoritative guidance and best practices may, in fact, comply with constitutional
requirements. But establishing appropriate policies does not fully discharge the
Sheriff’s constitutional obligations; a policy is only as good as its execution. In this
case, the plaintiffs challenge certain of the Sheriff’s policies as inadequate and thus
unreasonable, but they also challenge the implementation of other policies that may be
facially adequate. For example, the plaintiffs offer an affidavit from a correctional officer
who states that, despite the Sheriff’s declared policy, facemasks are being rationed and
are not readily available for Jail staff. And they likewise offer affidavits from recent
detainees and from persons who have spoken with current detainees that are indicative

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of objectively unreasonable deficiencies in the implementation of certain of the Sheriff’s
declared policies.
With these considerations in mind, the Court assesses the plaintiffs’ likelihood of
success on its challenges to the Sheriff's actions in response to the health risks to
detainees posed by coronavirus.
a.

Medical triage of vulnerable detainees

The plaintiffs contend that the Sheriff has not established a process to identify
detainees who are in high risk categories for complications from coronavirus or
measures to separate vulnerable detainees from others who are confirmed or
suspected of having the virus. The Sheriff contends he has worked to establish policies
that are consistent with the CDC's guidelines and that identify potentially vulnerable
detainees. He points to evidence that Sheriff’s personnel are working to help the state
courts expedite case and bond review hearings by identifying detainees who are
considered at a high risk of having complications from the virus based on age or
medical conditions. But apart from using medical alerts in the Sheriff’s office’s computer
system, the submissions made to the Court offer no description of an actual process for
identifying vulnerable detainees.
Given the widely acknowledged risks to medically vulnerable individuals, it
undoubtedly would be advisable for the Sheriff to identify, in advance of any
symptomatology, detainees who are in high-risk categories. The CDC’s guidance says
that correctional facilities should ensure that detainees are medically evaluated and
treated "at the first signs of COVID-19 symptoms," including a determination regarding
whether an individual is in a high-risk category. Defs.' Resp., Ex. O (dkt. no. 30-15), at

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23. Knowing in advance who the high-risk detainees are, and maintaining an
accessible record of this, would facilitate more careful monitoring and treatment of the
medical condition of any such person who develops symptoms consistent with
coronavirus disease. But the CDC’s guidance does not require correctional facilities to
identify medically vulnerable detainees before they show symptoms or to segregate
them from other detainees in advance. For purposes of the present motion, the Court
cannot say that the plaintiffs are likely to succeed on their contention that the Sheriff’s
claimed failure to identify these detainees in advance is objectively unreasonable.
b.

Social distancing

The plaintiffs contend that the Sheriff's policies run afoul of social-distancing
guidance; the Sheriff has not mandated this within the Jail; and current housing
arrangements make social distancing impossible or virtually so, at least in many of the
Jail’s divisions. In several areas, detainees are housed in congregate setting somewhat
euphemistically called "dormitory"-type rooms—really, more like a military barracks, with
dozens of inmates in close-quarters bunkbeds in a single large room. In others,
detainees are doubled-celled in very small rooms. And in most areas of the Jail, large
groups of detainees share showers, bathrooms, and dayrooms, as is common in most
pretrial detention facilities. The plaintiffs contend that this runs afoul of CDC guidance
and unreasonably endangers detainees’ health. The Sheriff contends that he is
undertaking what he contends are reasonably feasible efforts to socially distance
detainees and to educate them on the need for social distancing and how to practice it.
The Sheriff also contends that he is working to reduce the occupancy of the Jails'
dormitory-style housing by as much as fifty percent. He also points to a policy that

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requires the isolation of new detainees from the Jail’s general population for fourteen
days as of April 6, 2020 (up from seven days in an earlier iteration of the policy).
At the April 7 hearing, however, defense counsel was unable to confirm whether
such efforts make it possible to separate detainees' beds by six feet or, indeed, how
much separation exists in the dormitory-type buildings. The only evidence in the record
suggests that detainees likely are still packed rather closely in those facilities. In
addition, the record appears to reflect that the Sheriff continues to maintain the historical
practice of holding all new detainees awaiting intake for extended periods in enclosed,
crowded cells commonly called bullpens. This occurs even before new detainees—all
of whom have come from the community at large—are medically evaluated. This, it
would appear, is a volitional, knowing policy choice by the Sheriff.
Plaintiffs have shown a reasonable likelihood of success on their contention that
the intake procedure is objectively unreasonable and creates an undue risk of harm to
new detainees who are thereby exposed to others who have not been medically
evaluated and may have coronavirus disease symptoms. The CDC’s guidance
recommends that correctional facilities "[e]nforce increased space between individuals
in holding cells, as well as in lines and waiting areas such as intake." Defs.' Resp., Ex.
O (dkt. no. 30-15), at 11. There is no evidence that the Sheriff is enforcing those
measures, particularly with respect to the intake process; indeed, what evidence exists
is to the contrary.
It is less clear, however, that the Sheriff’s existing housing arrangements for
admitted detainees may be considered objectively unreasonable. In this regard, the
CDC’s guidance is not as definitive as plaintiffs suggest; it acknowledges that space

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limitations may require a departure from better social-distancing practices. Though the
existing situation likely increases the risk to detainees, the CDC's guidance expressly
recognizes that complete social distancing may not be possible in the sleeping areas of
a jail. Space constraints at the Jail do not allow for the more preferable degree of social
distancing that exists in the community at large. The Court concludes that plaintiffs
have filed to show a reasonable likelihood of success on their contention that the Sheriff
is acting in an objectively unreasonable manner by failing to mandate full social
distancing. This is particularly so because the Sheriff's submission reflects an ongoing
effort to modify custodial arrangements at the Jail in a way that will permit greater
separation of detainees.
c.

Sanitation

The plaintiffs contend that, although sanitation and handwashing are considered
to be among the best defenses against the spread of coronavirus, the Sheriff's policies
fail to provide for sufficient distribution of soap, sanitizing agents, and cleaning products
to detainees. In particular, the plaintiffs note, the Sheriff's coronavirus response plan
does not provide for the distribution of sanitation supplies to detainees at all. Affidavits
submitted by and on behalf of both current and former detainees reflect that detainees
are not being given sanitation supplies to clean cells or shared showers that have not
otherwise been sanitized, and that they either have not received soap or received only a
very small supply insufficient to permit the frequent hand-washing recommended by
public health experts. In addition, a correctional officer who has submitted an affidavit in

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support of plaintiffs’ motion 8 states that access to soap and sanitation supplies also
pose a problem for Jail staff who have some responsibility for cleaning areas under their
observation and control. For his part, the Sheriff contends he is working to distribute
supplies more frequently, to implement more frequent and thorough sanitary measures,
and follow the CDC's guidelines.
The CDC's guidance advises correctional facilities to ensure that sufficient
amounts of sanitation and cleaning supplies are available and that detainees have free
soap "sufficient to allow frequent hand-washing." Defs.' Resp., Ex. O (dkt. no. 30-15), at
8. The CDC also advises that frequently touched surfaces should be cleaned and
disinfected several times a day. The Sheriff, however, has offered nothing to indicate
that his policies ensure the provision of sufficient soap to detainees (let alone that it is
being provided free of charge, assuming that is a relevant consideration for present
purposes). By contrast, there is plenty of evidence to the contrary. The Sheriff also
points to policies that call for sanitation and cleaning supplies to be made available to
detainees, but he offers no evidence that this is actually happening on the ground, and
as indicated the plaintiffs have offered significant evidence reflecting that it is not
happening. This means that it is highly likely, as the plaintiffs contend, that numerous
areas subject to common access in the Jail, including dayrooms, other common areas
like showers and bathrooms, two-person cells, and the dormitory-type rooms, are going
uncleaned for extended periods, thus increasing the risk of transmission of coronavirus

8

At the hearing, defense counsel attempted to cast doubt upon the credibility of the
correctional officer, saying that he had been involved in other disputes or lawsuits with
the Sheriff. The Court does not and need not make a credibility determination at this
stage, other than to note that the officer’s statements are consistent with those made by
detainees in other affidavits submitted by the plaintiffs.
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by detainees not yet isolated as symptomatic who have been in or touched objects in
those areas. The Court cannot at this point quantify the risk, but the significant number
of confirmed coronavirus infections among detainees certainly suggests the risk is
significant. For these reasons, the Court concludes that plaintiffs have shown a
reasonable likelihood of success on their claim that the execution of the Sheriff's
policies regarding sanitation and sanitation supplies is objectively unreasonable.
d.

PPE

The plaintiffs next contend that the Sheriff's policies do not require providing PPE
to every detainee and that this is objectively unreasonable under the circumstances.
The first of these propositions appears to be undisputed: detainees as a whole are not
being issued facemasks or other forms of PPE. Current and former detainees have
stated via affidavits that they did not receive any PPE, that only detainees with
symptoms received PPE, that detainees' requests for PPE have been denied by
Sheriff’s personnel, and that when detainees tried to make their own face coverings,
officers have confiscated them. The Sheriff has offered no contrary evidence on these
points. The plaintiffs also suggest that some, but not all, correctional officers wear or
have been wearing PPE in the Jail—at least, not until recently (though even this
appears to be disputed via the affidavit from the correctional officer submitted by the
plaintiffs on the morning of April 7). The Sheriff contends that he has been proactively
working to obtain PPE and conform with best practices regarding its use, including, as
of recently, requiring all employees to wear PPE in the Jail. The Sheriff also offers
evidence that he has created a team of officers who patrol tiers checking that
correctional staff are appropriately are using PPE.

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The CDC's guidelines for detainees' use of PPE recognize some flexibility; they
require symptomatic detainees to wear masks but do not mandate this for those
detainees' close contacts. But the CDC's guidance also indicates that asymptomatic
detainees should get "face masks for source control as feasible based on local supply,
especially if housed as a cohort." Defs.' Resp., Ex. O (dkt. no. 30-15), at 25 (emphasis
added). Based on the record before the Court, the Sheriff's office gives PPE only to
symptomatic detainees—a significant but still relatively modest proportion of the total
detainee population at this point—even though the Sheriff currently has enough
supplies to provide PPE to employees for at least a month. Because current guidance
indicates that even cloth masks can reduce the spread of coronavirus, and the virus is
spreading rapidly throughout the Jail, the plaintiffs have a reasonable likelihood of
success on their contention that it is objectively unreasonable for the Sheriff to fail to
provide facemasks at least to those detainees who are in quarantine—i.e., those who
have been exposed to a detainee who is symptomatic (even if not coronavirus-positive).
This failure creates an increased risk of further spread of coronavirus to other
detainees, not to mention Jail staff and, by extension, members of the general public
with whom those staff members have contact. The plaintiffs likewise have shown a
reasonable likelihood of success on their contention that the Sheriff is not enforcing the
use of PPE by Jail staff who come into contact with detainees, which poses a similar
risk to detainees given those staff members’ exposure to others outside the Jail.
e.

Quarantine and isolation

The plaintiffs also criticize the Sheriff's policies on quarantining detainees who
have been exposed to other detainees who have exhibited symptoms consistent with

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coronavirus disease. The policy, as discussed earlier, calls for quarantining the entire
tier where any such detainee was housed for a fourteen-day period, extended if
someone else in the tier thereafter exhibits symptoms. But plaintiffs’ criticism is not that
the policy is inappropriate. Rather their contention appears to be that in the near to
medium term the Sheriff's practice will make it impossible for him to manage the crisis
given the number of tiers that likely will be under quarantine. Plaintiffs’ position, it
seems to the Court, amounts to a contention that the practice of quarantining is likely to
fail, so the Court will ultimately have to order detainee releases now to relieve the
pressure. That, however, is not the issue currently before the Court, and in any event
the plaintiffs have not made the showing that this is an appropriate remedy at this
point. 9
The Sheriff contends that he is following the CDC's guidance and has
implemented it. As indicated, he has quarantined for at least fourteen days any
detainee who has been in contact with a symptomatic detainee, and if a tier is
quarantined, no new detainees are admitted to it or transferred from it. In addition,
symptomatic detainees are moved to isolation tiers, and coronavirus-positive detainees
are moved to different isolation tiers, for at least fourteen days. The plaintiffs offer no
evidence reflecting that this is not what the Sheriff is doing.
The CDC’s guidance does not require correctional facilities to individually isolate
detainees who have tested positive for coronavirus or have been in close contact with

9

For this reason, and because the requirements of 18 U.S.C. § 3626(a)(3)(A) have not
been met, the Court need not address the applicability of section 3626 to the plaintiffs'
request for relief. The same is true with regard to subclass B's request to be transferred
to alternate custodial locations. At least at present, the plaintiffs are not seeking release
from custody.
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someone who has. Rather, the CDC recognizes that some facilities may not have
enough individual cells for individual isolation and may need to quarantine together
groups of detainees exposed to others who have tested positive. The CDC's guidance
further states that if a correctional facility has a need to isolate or quarantine detainees
in groups, detainees with confirmed coronavirus cases should not be placed into
isolation with symptomatic detainees or other detainees. The Sheriff's policies follow
this recommendation, and the plaintiffs point to no evidence that he is not implementing
those policies. The Court concludes that plaintiffs have not shown a reasonable
likelihood of success on their contention that the Sheriff’s quarantining policies and
practices are objectively reasonable.
f.

Coronavirus testing

The plaintiffs contend—and it is reasonable to believe—that there are likely more
infections in the Jail than currently reported because of the limited availability of
coronavirus tests. They ask the Court to order the immediate implementation of rapid
testing. The Sheriff contends that Cermak Health Services has obtained approval to
start administering a rapid testing process developed by Abbott Laboratories as of April
7. But when the Court asked at the hearing—on April 7—about the status of that
testing, the Sheriff's counsel did not know whether or how it was being implemented.
Rather, counsel said that this was up to Cermak, which is controlled by Cook County,
not the Sheriff.
The CDC’s guidance does not offer a specific recommendation on how widely
testing should be done. It does imply, however, that people who are symptomatic
should be tested if feasible. In light of the evidence that the Sheriff now has access to

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rapid coronavirus testing, it is not objectively reasonable for the Sheriff himself—not just
Cermak Health Services—to fail to have a policy in place regarding implementation of
prompt testing, in particular for detainees who exhibit symptoms consistent with
coronavirus disease. See, e.g., Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)
(failure to have a policy may, in certain circumstances, constitute an unconstitutional
policy).
2.

Irreparable harm and inadequate remedy at law

To meet the threshold requirement for a temporary restraining order, the plaintiffs
must also demonstrate that without it, they will suffer irreparable harm for which they
lack an adequate remedy at law. Whitaker, 858 F.3d at 1044, 1046. This requires a
showing of more than a "mere possibility" of harm, but harm need not be a certainty in
order for a court may grant relief. Id. at 1044.
The plaintiffs have adequately shown a likelihood that they will suffer irreparable
harm without a temporary restraining order. Some of the plaintiffs—at least those over
the age of 65 or with preexisting health conditions—risk severe health consequences,
including death, if they contract coronavirus disease. For others, a coronavirus infection
may result in permanent lung damage. These grave risks to health are not an
insignificant possibility for the plaintiffs, all of whom are housed in units or tiers in which
a person has tested positive for coronavirus, all or nearly all of whom are housed in
close proximity with others, and many and likely most of whom have not been given
sufficient soap or sanitation supplies, let alone PPE. "[A] remedy for unsafe conditions
need not await a tragic event." Helling v. McKinney, 509 U.S. 25, 33 (1993). And
because the risk of harm to plaintiffs is a grave threat to their health and possibly their

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lives, they have shown a risk of harm for which "it is not practicable to calculate
damages" and therefore has no adequate remedy at law. See Foodcomm Int'l v. Barry,
328 F.3d 300, 304 (7th Cir. 2003); cf. W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1126
(N.D. Ill. 2018) (no adequate remedy of law to address harm from prolonging child's
separation from parent).
3.

Balancing of harms

"Once a moving party has met its burden of establishing the threshold
requirements for a preliminary injunction, the court must balance the harms faced by
both parties and the public as a whole." Whitaker, 858 F.3d at 1054. The nature of the
balancing depends on the moving party's likelihood of success: the higher the likelihood,
the more the balance tips in favor of granting injunctive relief. Id.
The Sheriff argues that this balance tips against entry of a temporary restraining
order because an injunction requiring him to implement additional health and protective
measures would be disruptive to his ongoing efforts to address the spread of
coronavirus in the Jail. The Sheriff also argues that the Court should defer to the Jail's
practices and its execution of policies that preserve internal order, discipline, and
security in the facility. See Bell, 441 U.S. at 547. The plaintiffs contend that their risk of
severe health consequences or death as a result of coronavirus infection is so grave
that it tips the balance in favor of granting a temporary restraining order. Additionally,
the plaintiffs argue that the public health interest in limiting the spread of the virus also
favors granting relief.
The Court concludes that the balance favors granting injunctive relief to the
plaintiffs to the limited extent contemplated by this order. First, as detailed above, the

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plaintiffs have presented ample evidence of conditions that pose an unreasonable risk
of serious harm to the class members' health and at least some shortcomings in the
Sheriff's mitigation of that risk. As the Court has detailed, this showing, on the points
identified earlier, surpasses the plaintiffs' burden of showing a "better than negligible"
chance of success. Whitaker, 858 F.3d at 1046. Furthermore, the interest of the public
in containing the further spread of this highly contagious virus also favors granting relief
to the plaintiffs.
The Court again acknowledges the deference owed to the Sheriff in the operation
of the Jail and in his development of internal procedures to maintain safety, order, and
security and to response to this severe crisis. The Court has taken these
considerations into account in ordering the limited relief described in this order. The
Court has tailored this relief to account for deference to the Jail's ongoing planning and
efforts to address the risks associated with the coronavirus outbreak. The Court has
also, as indicated earlier, taken into account the enhanced requirements for issuing
what it has referred to as a "mandatory injunction." The risk to the health and safety of
detainees and others is sufficient to invoke this form of relief.
C.

Remedy
For the reasons stated above, the plaintiffs have met the criteria for a temporary

restraining order with regard to at least parts of the claim Count 1 of their complaint.
The next question is what remedy is appropriate under the circumstances. The Court
addresses in turn each category of remedy the plaintiffs seek.
1.

Coronavirus testing

The plaintiffs seek an order requiring the Sheriff to acquire access to rapid

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coronavirus testing and ensure that all people who enter the Jail with the virus can be
quickly identified and medically isolated. They also seek an order requiring the Sheriff
to quarantine all new detainees until test results become available or, if testing cannot
be done, for fourteen days unless they become symptomatic.
In light of the evidence that the Sheriff now has access to rapid coronavirus
testing, and for the reasons previously stated, the Court grants plaintiffs' request only to
the following limited extent. The Court directs the Sheriff to establish by April 11, 2020,
and to implement immediately thereafter, a policy requiring prompt coronavirus testing
of detainees who exhibit symptoms 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.
Because evidence shows the Sheriff has a policy in place requiring a fourteenday quarantine of all new detainees (the apparent length of coronavirus's incubation
period), the Court declines to require further testing or quarantining of new detainees
before housing them in the general population, though the Sheriff should account for
new detainees in his testing plan.
2.

Quarantining and social distancing

The plaintiffs also seek an order requiring the Sheriff to medically isolate all
detainees who are positive for COVID-19 in a controlled, monitored environment in
which they are not at risk for infecting others; quarantine all detainees who are
symptomatic and/or have been exposed to a confirmed case of COVID-19 in such an
environment; and mandate social distancing among all detainees. For the reasons

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described earlier, the Court at this time directs only that the Sheriff enforce, effective on
April 11, 2020, social distancing during the new detainee intake process, including
suspending the use of bullpens to hold new detainees awaiting intake.
3.

Sanitation

The plaintiffs next seek an order requiring the Sheriff to provide sufficient soap
and hand sanitizer to all detainees so that they may frequently wash their hands. In
addition, they seek an order directing the Sheriff to provide sanitation supplies to enable
all staff and detainees to regularly sanitize surfaces and objects on which coronavirus
could be present and to provide supervision to ensure that sanitizing takes place
between uses of those surfaces and objects. They also seek an order directing the
Sheriff to educate all staff and detainees on the importance of regularly sanitizing all
surfaces and objects on which the virus could be present.
For the reasons stated above, the Court directs the Sheriff to begin, by April 10,
2020, providing soap and/or hand sanitizer to all detainees in quantities sufficient to
permit them to frequently clean their hands. The Court also orders the Sheriff to begin,
by April 10, 2020, providing 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 twoperson cells, as well as bathrooms and showers). The Court further directs the Sheriff
to establish, by April 11, 2020, 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. In light of evidence that the Sheriff
has established education programs on preventative measures pertaining to

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 Case: 1:20-cv-02134 Document #: 47 Filed: 04/09/20 Page 36 of 37 PageID #:1102

coronavirus, the Court declines to impose any further requirements in this regard.
4.

PPE

For the reasons the Court has described, it declines plaintiffs' request for an
order requiring the Sheriff to provide all detainees with PPE. Instead, the Court orders
the Sheriff, effective April 12, 2020, 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).
It appears to the Court that, as of the date of the hearing, the Sheriff is
adequately enforcing the use of PPE by Jail staff who come into contact with detainees,
so the Court declines to impose further requirements in that regard.
5.

Adequate medical staff

The plaintiffs request the Court to order the Sheriff to provide adequate medical
staff to monitor all detainees within the Jail. Because the plaintiffs have pointed to no
evidence that the Jail's medical staff are under the purview of the Sheriff, as opposed to
Cermak Health Services, the Court declines to impose this requirement upon the
Sheriff. The Court also notes that the record does not sufficiently reflect a current lack
of adequate medical staff, making the requested relief inappropriate as part of a
temporary restraining order even were this a matter under the control of the Sheriff.
6.

Medical triage of vulnerable detainees

For the reasons stated above, the Court declines to enter an order requiring the
Sheriff to immediately identify or segregate all medically vulnerable detainees even if
they are not showing symptoms.

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 Case: 1:20-cv-02134 Document #: 47 Filed: 04/09/20 Page 37 of 37 PageID #:1103

7.

Transfer of Subclass B members

Finally, the plaintiffs have requested an order requiring transfer of the putative
members of Subclass B to a safe facility or other forms of custody. They contend that
even the implementation of reasonable sanitation and other related procedures is
insufficient to protect these class members, some of whom may already have been
exposed to coronavirus, from contracting the disease. The Court concludes that
plaintiffs have not demonstrated that the requirements of this temporary restraining
order, coupled with the steps the Sheriff is already taking to prevent the spread of the
disease, are insufficient and thus denies this requested relief.
Conclusion
For the foregoing reasons, the Court grants in part plaintiffs' motion for a
temporary restraining order [dkt. no. 2] with regard to Count 1 of the complaint but
otherwise denies the motion. The Court enters a temporary restraining order to the
extent explained in the relief section of this opinion. The Court directs the Sheriff to file
a report by 4:00 p.m. on April 13, 2020 regarding his implementation of the Court's
directives. The case is set for a telephonic status hearing before the undersigned
judge, as emergency judge, on April 14, 2020 at 9:00 a.m. The Clerk will provide the
parties with call-in information prior to April 14.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: April 9, 2020

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