Part 4 of Managing the Risks of COVID-19 in the County Jail Setting

April 28, 2020

Update on Recent COVID-19 Prison Litigation 

Mays, et al. v. Dart, et al. 

[DISCLAIMER: Nothing in this blog post should be construed as legal or medical advice. Be sure to follow all CDC, IDPH, and IDOC guidance regarding the current COVID-19 pandemic. HC&B is also available for consultation regarding risk management and litigation in this uncertain time.]   

We have continued to monitor the ongoing class-action litigation, Mays v. Dart, et al., regarding the Cook County Adult Detention Center (see our previous installments here and here). On April 23, the Court held a hearing on the Plaintiffs’ request for a preliminary injunction. In light of the ongoing pandemic, the Court took argument telephonically, and allowed for one live witness for each side. The Court also ordered supplemental briefing and considered ongoing reports from the Sheriff on its compliance with the previously entered temporary restraining order (“TRO”).

On April 27, Judge Matthew F. Kennelly entered an 87-page order granting in part and denying in part Plaintiffs’ motion for a preliminary injunction. The Court repeatedly lauds the Sheriff’s efforts to comply with CDC guidance and the myriad of efforts the Sheriff had undertaken to maintain the health of its detainees. The Court also recognized that the Sheriff’s compliance with the Court’s prior order was time-consuming and difficult. The Court once again rejected Plaintiff’s claims regarding to habeas corpus relief because the Plaintiff’s claims regarding the infeasibility regarding seeking state court relief to be unavailing.  Essentially, the detainees, if they wanted to be released or their bond to be modified, are required to exhaust their options within the state courts first, rather than suing for relief in federal court. Further, the Court concluded that under the Prison Litigation Reform Act, the Court lacked the authority to release prisoners or modify their conditions to home confinement. The Court left the door open, that should the circumstances require, a three-judge-panel could be convened to entertain such a “prisoner release order,” but declined to do so at this time.

Turning to the merits of the Plaintiff’s remaining claims on the reasonableness of the modified conditions within the Jail, the Court considered the Plaintiffs’ requests for (1) enforced social distancing throughout the entirety of the jail, and (2) advance pre-screening of vulnerable detainees for COVID-19. The Court also considered the Sheriff’s ongoing compliance with the TRO with respect to the limited social distancing, testing, and sanitization procedures. The Court centered its order on “reasonableness,” and again drew the distinction between this case and any claims brought by convicted prisoners, stating, “[w]ere this an Eighth Amendment case involving convicted prisoners, the efforts [undertaken by the Sheriff] the Court has just described likely would be the end of the story.” (Order, at p. 56). Just as in the IDOC case, the proactive and reactive efforts to the virus undertaken by the Sheriff would have precluded a deliberate indifference claim under the Eighth Amendment.

With respect to the possibility of enforcing social distancing throughout the Jail, testimony by the Executive Director established that the Jail took measures to reduce its population in its dormitory settings. In those dormitories that did not have bunks bolted to the ground, the jail continues to work reducing those populations to 50% capacity, which allows for appropriate social distancing within the dorm. In those dormitories where the bunks are not bolted to the ground, the bunks were separated six-feet apart from one another. However, the Jail has not yet achieved full social distancing, continuing to double-cell some classes of detainees. Additionally, the Jail could still open some housing units that are currently closed, and could commandeer some space within the women’s areas of the jail for the men (male detainees outnumber the female detainees in the Jail) to create more space.

The Court concluded that the Plaintiffs are not entitled to full social distancing throughout the jail, as this is infeasible, and in certain cases inadvisable. However, the Court also concluded that simply following the Sheriff’s current adherence to the CDC guidelines was not enough, as the Sheriff had not yet met their feasibility threshold in terms of social distancing compliance. Because the testimony by the Sheriff’s witness indicated that there was more that could be done in terms of social distancing, the Court ordered them to do so. The Court ordered that the Jail must provide adequate social distancing by ending group housing or double-celling for most detainees. The Court ordered that group housing and double-celling may continue for (1) detainees currently quarantined following a positive test, (2) detainees who tested positive and are undergoing medical observation, (3) detainees recovering from COVID-19, (4) detainees with a risk of self-harm who cannot be housed alone, (5) detainees housed in 50% capacity dorms, and (6) medical group housing where there is insufficient other housing space. These detainees must still be provided masks and must be educated on social distancing. The Court left open to additional showing by the Sheriff that detainees with disciplinary problems or pose a risk of being a victim or perpetrator under the Prison Rape Elimination Act should be allowed in group or double-celled housing, but absent additional information, declined to exempt them from his order requiring social distancing. The Court rejected the Plaintiffs’ claims that single-celled housing was inadequate and declined to order any release on home-confinement.

Turning to the Plaintiffs’ request for advance screening and testing for asymptomatic vulnerable populations, the Court found that Plaintiffs were unlikely to show that the Sheriff’s practices in isolating and treating symptomatic detainees was unreasonable under the circumstances.

Finally, the Court extended the terms of the previously entered TRO because of conflicting testimony as to the enforcement of the TRO within the Jail and the fact that certain measures were not undertaken prior to the entry of the TRO. The Jail must continue to provide sanitization materials, soap, and enforce social distancing in booking procedures. The Court extended the preliminary injunction for the duration of the ongoing pandemic. The Court will accept ongoing filings by the parties during the pandemic, but otherwise left continued resolution of the issues to the assigned judge.

There are a number of lessons to be taken from this preliminary outcome:

  • Where possible, enforcing social distancing is one of the biggest concerns in a jail setting. Dormitories and multi-person housing, if possible, should be re-worked to allow for social distancing. Challenges regarding the feasibility of such efforts should be clearly documented.
  • Stay up-to-date on CDC guidelines, the Illinois Department of Public Health guidance, and the Governor’s executive orders regarding the outbreak. Enforcing these guidelines will be important to establishing the reasonableness of the response to this pandemic.
  • Many of these lessons can also be learned from how Sheriffs are handling this disease in County Jails around Illinois. On April 9, we published on this blog measures taken by leading Sheriffs across Illinois to protect their jails.

One of the clear concerns on the Court’s mind in the Cook County case was the substantial outbreak at the Jail. Hopefully such a circumstance can be avoided by learning from the conditions present in this case. We at HC&B are closely watching this and other cases and the likely effects on county jails and their populations as a result of pandemic-related litigation. If there are further developments of note, please watch our blog for updates. We anticipate that there may be efforts by similar groups of attorneys to seek the early release of pre-trial detainees or convicted offenders serving time in our clients’ jails, or to mandate particular procedures within County Jails perceived as inadequate by detainees.

The experienced attorneys at HC&B can assist in providing both legal and practical advice in managing the risks of the current pandemic, and preparing for and defending against anticipated litigation. We look forward to meeting the challenges presented by the current pandemic, and providing what assistance we can in keeping our first responders, corrections personnel, law enforcement and the public-at-large safe during this time of crisis. Please contact us if you have any concerns regarding the current pandemic, or questions regarding preparedness for the legal fallout from this unprecedented crisis.

Stay safe,

The Team at HC&B

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