Case: 1:20-cv-02134 Document #: 1 Filed: 04/03/20 Page 1 of 30 PageID #:1

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, )
) Case No. 1:20-cv-2134
v. )
)
THOMAS DART, Sheriff of Cook County, )
)
Defendant-Respondent. )

CLASS ACTION COMPLAINT

REPRESENTATIVE PETITION FOR HABEAS CORPUS

Plaintiff ANTHONY MAYS and Plaintiff JUDIA JACKSON, the next friend of Kenneth

Foster, by their undersigned attorneys, for their complaint against defendant THOMAS DART,

Sheriff of Cook County, allege as follows:

INTRODUCTION

1. A rapidly escalating public health disaster is unfolding behind the walls of the Cook

County Jail (the “Jail”). In the 11 days since March 23, the number of confirmed cases of COVID-

19, the disease caused by a deadly coronavirus for which there is no vaccine and no cure, has risen

from one to at least 167. A total of 46 corrections staff are also known to have COVID-19. These

numbers will continue to rise dramatically because of the circumstances alleged in this complaint.

2. The Jail, which is operated under the supervision of defendant Thomas Dart, the

Sheriff of Cook County, has failed in its constitutional responsibility to the persons detained there

to provide reasonable protection against the further spread of this deadly disease. Social distancing

within the Jail is currently impossible because the Jail is a crowded, congregate environment in
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which some 4,700 individuals are detained, in dual cell or dorm quarters. The Jail has repeatedly

failed and continues to fail to separate persons known to have been exposed to COVID-19 from

other detainees. Sanitation of surfaces and objects that are frequently touched by the infected and

the not-yet-infected is non-existent. Personal hygiene is impossible because detainees do not have

soap or hand sanitizer. These conditions violate applicable guidance of the Centers for Disease

Control and Prevention (the “CDC”) and ensure the continued rapid, uncontrolled spread of

COVID-19 within the Jail and beyond—because the Jail is not and cannot be isolated from the

larger community.

3. This is a representative action on behalf of the class of persons who are detained in

the Jail and, because of the failings of Defendant Dart and his staff, are facing unreasonable and

unnecessary risks of exposure to the coronavirus, possible serious respiratory illness, and death.

4. Included in the class are persons at elevated risk for contracting serious COVID-19

and dying from the disease because they are elderly and/or have underlying health issues, such as

asthma, other chronic respiratory problems, kidney problems or hypertension, among others. The

risks to these vulnerable people from remaining in the chaotic and infectious environment that

reigns within the Jail are unacceptable. This group cannot, under current conditions, receive

reasonable medical care or protection from COVID-19 within the Jail. They must be released

because, within the time frame that would be necessary to improve safety, they would suffer

irreparable harm and are therefore jailed in violation of the Constitution of the United States.

JURISDICTION AND VENUE

5. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and 2241(a).

This Court has jurisdiction over Subclass A’s petition for a writ of habeas corpus under 28 U.S.C.

§ 2241.

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6. Venue is proper in this District under 28 U.S.C. § 1391(b) because the events giving

rise to the claims asserted in this complaint occurred in this District.

PARTIES
7. Plaintiff-Petitioner Anthony Mays is a detainee in Cook County Jail. He has

diabetes and had been referred for an evaluation of a heart condition when COVID-19 hit the jail.

He is housed in Division 8, in an open-dormitory setting. Multiple detainees on his tier have been

removed after testing positive for COVID-19.

8. Plaintiff-Petitioner Kenneth Foster is a detainee at Cook County Jail. This action

is brought on Mr. Foster’s behalf by his next friend, Judia Jackson. Ms. Jackson is aware of Mr.

Foster’s wishes with respect to this action. Ms. Jackson is serving as next friend because the

undersigned counsel attempted to contact Mr. Foster by telephone within the Cook County Jail,

but were unable to do so due to the Jail’s operational difficulties arising out of the COVID-19

pandemic. See Declaration of Alison Horn (Ex. A). Mr. Foster has stomach cancer, Lung-

Sarcoidosis, high blood pressure, asthma, and bronchitis. He is living in a dorm setting in Division

2. Mr. Foster estimates that five or six people from his tier have tested positive for COVID-19.

The people who tested positive for the virus were removed from the dorm.

9. Defendant-Respondent Thomas J. Dart is the Sheriff of Cook County, Illinois. He

is sued in his official capacity.

FACTUAL ALLEGATIONS
A. The COVID-19 epidemic is a global health emergency.
10. The coronavirus that causes COVID-19 has reached pandemic status according to

the World Health Organization (“WHO”). In only a few months more than one million people

worldwide have been diagnosed with COVID-19, and nearly 60,000 of those people have died.1

1
https://www.worldometers.info/coronavirus/ (last visited April 3, 2020).
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In the United States alone, as this complaint is being filed, there are hundreds of thousands of

confirmed cases and over six thousand deaths.2 The number of confirmed COVID-19 cases has

grown, and is expected to grow, exponentially. The CDC projects that without swift and effective

public health interventions, over 200 million people in the U.S. could be infected with COVID-19

over the course of the epidemic, with as many as 1.7 million deaths.3 As of April 2, there were

more than 7,695 confirmed cases of COVID-19 in Illinois, up from just 20 on March 18, 2020. Of

these, 157 people have died.4

B. COVID-19 is a highly contagious and lethal disease.

11. COVID-19 is a particularly contagious disease. The virus can survive for up to

three hours in the air, as an aerosol, and can be directly transmitted by inhalation to other

individuals in close proximity. Droplets can also land on surfaces and be picked up by the hands

of another person who can then become infected by contacting a mucous membrane (eyes, mouth,

or nose) with their hand. COVID-19 can survive four hours on copper, up to twenty-four hours

on cardboard, and up to two to three days on plastic and stainless steel.5 A recent study of an early

cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect transmission

2
Coronavirus Disease 2019 (COVID-19): Cases in U.S., Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-
us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-in-us.html
(last visited April 1, 2020).
3
Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times, (Mar. 13, 2020),
https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html
4
http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus (last
visited April 3, 2020).
5
Dr. Michael Puisis, Dr. Robert Cohen, Dr. John Raba, Dr. Sergio Rodriguez, and Dr. Ron Shansky,
Declaration of Medical Professionals Concerned about the Spread of COVID-19 in the Cook County Jail
(hereinafter Puisis et al.) (Ex. B) ¶ 11.

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resulting from infected people contaminating common surfaces such as the communal mall

bathroom in the study.6

12. Controlling the spread of COVID-19 is even more difficult because of the

prominence of asymptomatic transmission—i.e., transmission by people who are contagious but

who exhibit limited or no symptoms. This poses enormous challenges to control of spread, because

it renders ineffective any screening tools dependent on identifying disease symptoms.7

13. Older adults face greater chances of serious illness or death from COVID-19.

Certain underlying medical conditions increase the risk of serious COVID-19 disease for people

of any age—including lung disease, heart disease, chronic liver or kidney disease (including

hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems

(such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease),

inherited metabolic disorders, stroke, and developmental delay.8 The WHO-China Joint Mission

Report indicates that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for

diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.9

14. For people who are older or with medical conditions that increase the risk of serious

COVID-19 infection, symptoms such as fever, coughing and shortness of breath can be especially

6
Cai J, Sun W, Huang J, Gamber M, Wu J, He G. Indirect virus transmission in cluster of COVlD-19 Cases,
Wenzhou, China, 2020. Emerg Infect Dis. 2020 Jun. (https://wwwnc.cdc.gov/eid/article/26/6/20-0412_article) (last
visited Mar. 31, 2020).
7
Puisis et al. ¶¶ 12; Johnny Milano, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, New
York Times, https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html (last visited
April 1, 2020) Graham Lawton, You Could Be Spreading Coronavirus Without Realising You’ve Got It, New
Scientist March 24, 2020 (https://www.newscientist.com/article/2238473-you-could-be-spreading-the-coronavirus-
without-realising-youve-got-it/) (last visited Mar. 31, 2020).
8
Puisis, et al. ¶ 27.
9
Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health
Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/who-china-joint-
mission-on-covid-19-final-report.pdf

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severe. In a February 29, 2020 WHO-China Joint Mission Report, the preliminary mortality rate

analyses showed that individuals age 70-79 had an overall 8% mortality rate, individuals age 60-

69 had a 3.6% mortality rate, and individuals age 50-59 had a 1.3% mortality rate. Increasingly,

and in the United States in particular, even some younger and healthier people who contract

COVID-19 will require hospitalization for supportive care, including intravenous fluids and

supplemental oxygen.10

15. Patients who eventually die do so of multiple organ failure, shock, acute respiratory

distress syndrome, heart failure, arrhythmias, and renal failure.11 For those who survive serious

COVID-19, recent clinical evidence indicates that the virus may cause damage to organs such as

the heart, the liver, and the kidneys, as well as to organ systems such as the blood and the immune

system.12 This damage can be so extensive and severe that it may be enduring.13 Among other

things, patients who suffer severe symptoms from COVID-19 end up having damage to the walls

and air sacs of their lungs, leaving debris in the lungs and causing the walls of lung capillaries to

thicken so that they are less able to transfer oxygen going forward.14 Indeed studies of some

recovered patients in China and Hong Kong indicate a declined lung function of 20% to 30% after

recovery.15

10
Puisis et al. ¶ 10.
11
Tianbing Wang et al., Comorbidities and multi-organ injuries in the treatment of COVID-19, The Lancet,
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30558-4/fulltext (March 21, 2020).
12
Tianbing Wang et al., Comorbidities and multi-organ injuries in the treatment of COVID-19, The Lancet,
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30558-4/fulltext (March 21, 2020).
13
George Washington University Hospital, GW Hospital Uses Innovative VR Technology to Assess Its First
COVID-19 Patient https://www.gwhospital.com/resources/podcasts/covid19-vr-technology (last visited April 1,
2020)
14
https://health.clevelandclinic.org/heres-the-damage-coronavirus-covid-19-can-do-to-your-lungs/
15
https://www.dw.com/en/covid-19-recovered-patients-have-partially-reduced-lung-function/a-52859671

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16. A high percentage of people in higher risk categories who develop COVID-19 will

need advanced supportive care requiring highly specialized equipment that is in limited supply,

and the dedicated attention of an entire team of care providers, respiratory therapists, and intensive

care doctors.16 This level of support can quickly exceed local health care resources.

17. There is no vaccine or known cure for COVID-19. No one is immune, nor is there

any known medication to prevent or treat infection. In this setting, the only known methods to

reduce the risk for vulnerable people of serious illness or death from COVID-19 are to prevent

infection through social distancing and rigorous hygiene, including washing hands frequently with

soap and water.

18. The measures required to accomplish this prevention effectively are extreme. The

CDC and other public health agencies have universally prescribed social distancing—every person

should remain at a distance of at least six feet from every other person—and rigorous hygiene—

including regular and thorough hand washing with soap and water, the use of alcohol-based hand

sanitizer, proper sneeze and cough etiquette, and frequent cleaning of all surfaces—as the only

ways to meaningfully mitigate the spread of this virus.17

19. The CDC has issued a guidance that gatherings of more than 10 people must not

occur.18 People in congregate environments, which are places where people live, eat, and sleep

in close proximity, face increased danger of contracting COVID-19, as already evidenced by the

16
https://jamanetwork.com/journals/jama/fullarticle/2763879
17
Coronavirus Disease 2019 (COVID-19): How to Protect Yourself, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
sick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-
ncov%2Fprepare%2Fprevention.html (last visited Mar. 29, 2020).
18
Interim Guidance for Coronavirus Disease 2019 (COVID-19), Guidance as of 3/15/2020,
https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-gatherings-ready-for-covid-19.html (last
visited Apr. 1, 2020).

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rapid spread of the virus in cruise ships and nursing homes. The CDC also warns of “community

spread” where the virus spreads easily and sustainably within a community where the source of

the infection is unknown.19

C. Incarcerated People Are Particularly Vulnerable to COVID-19.

20. None of the recommended measures for mitigating the spread of COVID-19 are

available for persons confined in correctional facilities and for those who must interact with them.

Jails are designed to be, and operate as, congregate environments, where the priority is security—

not medical quarantine.20 Many people live in dormitory-like sleeping arrangements. They have

limited freedom of movement and no control over the movements of others with whom they are

required to congregate on a daily basis. It is impossible to achieve the CDC’s social distancing

standard in these settings.21 Infectious diseases, particularly airborne diseases such as COVID-19,

are more likely to spread rapidly between individuals in correctional facilities.22

21. The risk of contracting an infectious disease is also higher in correctional facilities

because the facilities are not sanitary environments. People share toilets, sinks, and showers, and

often have limited access to soap, hand sanitizer, hot water, and other necessary hygiene items.

Jails are a warren of metal doors and surfaces that are touched by dozens, and sometimes hundreds,

or correctional staff and detainees every day. Surfaces are infrequently washed, if at all, and

cleaning supplies are in short supply.23 Activities that free citizens can perform on their own, like

19
Coronavirus Disease 2019 (COVID-19): How Coronavirus Spreads,
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 1,
2020).
20
Puisis et al. ¶¶ 16, 23-24
.
21
Id., ¶ 25.
22
Id., ¶¶ 23-25.
23
Id., ¶ 25.

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eating, are entirely different in the correctional setting: food, dishes, utensils, cups and trays pass

through numerous hands on the way to the detainee.

22. The people who live in these environments—environments that defy all current

public health standards—are themselves at significant risk of death from COIVD-19 due to the

high rates of chronic health conditions, substance use, mental health issues, and aging and

chronically ill populations who may be vulnerable to more severe illnesses, and to death, after

infection from COVID-19.24 Prisoners are unusually vulnerable to stress-related and

communicable diseases. Formerly incarcerated persons suffer higher rates of certain kinds of

psychiatric and medical problems. Incarceration leads to higher rates of morbidity (illness rates)

and mortality (i.e., it lowers the age at which people die).

23. Health profiles of incarcerated people show that they are significantly sicker and

more vulnerable to COVID-19 than the population at large:

Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for
criminal justice reform, Prison Policy Initiative (Mar. 6, 2020),
www.prisonpolicy.org/blog/2020/03/06/pandemic/

24
Id., ¶ 27.
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24. Jail health units are not equipped with sufficient emergency medical equipment,

such as oxygen tanks, negative pressure rooms, and oxygen face masks, to respond to an outbreak

of patients with respiratory distress. For these reasons, among others, experts have warned that,

“widespread community transmission of COVID-19 within a correctional institution is likely to

result in a disproportionately high COVID-19 mortality rate.”25 While Cook County Jail has a

dedicated health unit, that unit ultimately relies on outside community hospitals to provide more

advanced and intensive medical care, and during an epidemic, this will not be possible, as those

outside facilities become at or over capacity.26

25. Jails, furthermore, are not closed environments. By necessity, members of the free

community, including correctional officers, social workers, attorneys, medical personnel, and

many others must enter and leave jails on a daily basis. Staff arrive and leave each facility three

times a day in large numbers, and there is no current, in-place ability to adequately screen staff for

new, asymptomatic infection. In addition, new detainees are admitted into jails every day, many

of whom may be asymptomatic and thus not flagged for quarantine, even with robust intake

screening procedures. When the COVID-19 virus occurs and spreads within a jail, all persons,

staff and prisoners alike, are at heightened risk of contracting the virus and, in turn, spreading the

virus to others with whom they come in contact in their own homes and neighborhoods.27

25
“COVID-19 in Correctional Settings: Unique Challenges and Proposed Responses” (March 23, 2020),
https://amend.us/wp-content/uploads/2020/03/COVID-in-Corrections-Challenges-and-Solutions-1.pdf;
see also “Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions,"
Health Affairs Blog, March 26, 2020, available at:
https://www.healthaffairs.org/do/10.1377/hblog20200324.784502/full/
26
Puisis et al. ¶ 18.
27
Id. ¶ 27.

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26. It is virtually impossible, in short, to prevent an extremely contagious disease like

COVID-19 from entering a jail and infecting the population there.

D. Cook County Jail is a COVID-19 Accelerator

27. The danger COVID-19 poses to correctional facilities generally is even more in

evidence at Cook County Jail. Each of the statements in paragraphs 20 through 26, supra applies

with full force to the Cook County Jail.

28. Local community groups have amplifying the acute danger that COVID-19 posed

to Cook County Jail since early March.28 The Circuit Court rejected requests from the Cook

County Public Defender to issue mass orders freeing low-level detainees and those who were in

detention solely because they could not afford their money bonds, instead requiring individual

bond hearings for each person who might be released. That review was expedited for detainees

whose court of charge was the 2600 South California Avenue complex, but no such expediting

orders were issued for detainees whose court of charge were the multiple Circuit Court locations

in the Chicago suburbs.

29. The upshot of these measures has led to the release of approximately 800 detainees

from the Jail since March 20, 2020. Those measures, however, have left more than 4,700 detainees

in the Jail at the time of this filing. And, as set forth below, the Jail has demonstrably failed to

protect these thousands of individuals from COVID-19.

30. Cook County Jail is one of the largest single-site jails in the United States. In

addition to its 4,700 detainees, it is served by hundreds of staff who enter and leave the facility in

three different shifts every day.

28
https://chicagobond.org/2020/03/06/people-should-be-released-from-cook-county-jail-to-support-public-
health-during-coronavirus-outbreak/
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31. Throughout the course of a person’s detention, the Jail subjects people to one

congregate setting after another, as the ensuing publicly-available photographs make clear Those

congregate settings begin on intake, when new detainees are housed together in bullpens or similar

environments, presenting a ready opportunity for the spread of the virus:

32. Many of the units housing the largest numbers of detainees are congregate settings

as well, in which social distancing is not a remote possibility. The photographs below depict one

of several tiers in Division 2 of the jail (in which several of the detainees whose declarations are

attached hereto reside), and which houses a large portion of the jail’s detainees:

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33. The situation is similar in the Jail’s Residential Treatment Unit (“RTU”), where

medically vulnerable detainees are housed:

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34. Notably, the RTU also contains numerous mentally ill detainees, who make up a

substantial portion of the Jail’s population.29 Mentally ill prisoners are particularly vulnerable,

among other reasons, because they may not have the wherewithal to inform jail staff that they feel

ill.30

35. Detainees are surrounded not only by other detainees, but also numerous hard

surfaces that, if touched, can host COVID-19 for hours. Such areas are the only places where

detainees can sit, eat, and perform any number of basic functions that persons in the free world

can perform in social isolation. Indeed, the Jail is a warren of doors, sally ports, showers,

bathrooms, and various other surfaces that are constantly being touched by jail staff and by

detainees all day, every day; COVID-19 can survive on such surfaces for days. And as the

supporting declarations make clear, the shared communal areas within the divisions are still in

daily use.

E. The Jail is not effectively preventing the spread of COVID-19.

36. Inside accounts from Jail staff, detainees, and Cermak medical personnel paint a

picture of an unfolding disaster.

37. Detainees are housed in congregate settings. To combat the spread of COVID-

19, the Sheriff’s Office has implemented quarantine protocols. As Dr. Michael Puisis, the former

Medical Director of the Cook County Jail, and his colleagues—Cook County correctional experts,

Dr. Robert Cohen, Dr. John Raba, Dr. Sergio Rodriguez, and Dr. Ron Shansky—explain, however,

these protocols are insufficient and unsustainable as currently implemented:

Inmates are still being admitted into Cook County Jail. New inmates are being
quarantined. Known or suspicious cases of COVID-19 require isolation from others.

29
https://www.motherjones.com/crime-justice/2019/01/chicagos-jail-is-the-one-of-the-countys-biggest-
mental-health-care-providers-heres-a-look-inside/
30
Puisis et al. ¶ 21.
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However, the housing units are not set up for mass quarantine or isolation. The jail was
built with security in mind not medical isolation or quarantine. For purposes of
quarantine, the jail is cohorting groups of incoming inmates into tiers for a period of time.
Because inmates continue to be incarcerated in the Jail, invariably, this will result in a
significant portion of the jail dedicated to quarantine. It is recommended that quarantine
continue for 14 days. If any individual in the cohort becomes COVID-19 positive, the
entire group is again quarantined again for another 14 days. As the number of persons in
quarantine grows, managing them clinically becomes insurmountable and will result in
failure to manage.
Puisis et al. ¶ 16 (footnote omitted).

38. In layman’s terms, because the jail is replete with congregate settings—open

dormitories and tiers where the persons who are likely to have been infected are cheek by jowl

with those who might not be—“[i]ncreasingly it is becoming difficult to separate suspect infected

persons from the uninfected[,] and therefore infections will rise.”31 Indeed, Dr. Puisis and his

colleagues explain, this failure to contain infected detainees is demonstrated in the explosion of

coronavirus infections, from 1 to nearly 200 confirmed cases in 11 days.32

39. The opinion of Dr. Puisis, Dr. Shanksy, Dr. Raba, Dr. Cohen and Dr. Rodriguez is

confirmed by facts on the ground. Ample evidence shows that a large percentage of detainees

continue to be housed in tightly packed dormitories or similar conditions where the virus can

spread easily.

40. On March 31, counsel for a class of jail employees in an unrelated matter wrote a

lengthy letter to Sheriff Dart.33 Among other things the letter explains that:

● People arriving at the Jail’s intake unit are being placed in crowded “bull pens” and open
dorms, not single cells. Such bullpens and dormitories, which are depicted above,

31
Puisis et al. ¶ 17.
32
Id.
33
March 31, 2020 Letter from Marni Willenson, Caitlin Cervenka, Matthew J. Piers, Caryn Lederer, Cyrus
Mehri, Ellen Eardley, and Michael D. Lieder to Thomas J. Dart and Toni Preckwinkle (hereinafter “March Letter)
(Ex. C).
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facilitate the spread of the virus, as the Puisis et al. declaration makes clear.

● Incarcerated peoples were moved off a tier to reduce occupancy on that tier to one person
per cell--but they are being moved to Division 2, which has dormitory style bunks. The
type of Division 2 dormitory bunking, which is depicted in photographs above, makes
social distancing impossible.

● The Sheriff opened a “boot camp” building to quarantine other detainees. Nobody in the
boot camps is housed in single cells, however; instead it is a dormitory setting that leaves
detainees to be housed with infected people.34

● Even in situations where detainees are not housed in dormitories, they are not isolated,
either. To the contrary, officers assigned to multiple housing divisions report that people
are still double or even quadruple bunked.

41. The March 31 staff letter is consistent with accounts of detainees, set forth in the

declarations filed in support of this action, who are or were housed throughout the Jail, and who

report crowded, dormitory conditions throughout the facility. These detainees report that, in

addition to the packed settings, detainees are essentially powerless to practice adequate hygiene or

social distancing. The declarations submitted on behalf of the detainees make clear that all are at

risk of exposure to COVID-19 positive or symptomatic detainees, all lack access to adequate

cleaning supplies and sanitizing agents, all lack any form of personal protective equipment (PPE),

none are able to engage in social distancing or indeed any distancing in dorm and double-celling

living quarters with shared shower and bathroom areas, and all lack adequate medical care,

including for those detainees with symptoms of COVID-19.35 In particular:

34
Puisis et al. also opined that the boot camp had “insufficient jail medical staff to staff this unit which is in
part or in whole staffed by individuals from the Cook County Health and Hospital System’s ambulatory centers
which are now closed.” Puisis et al. ¶ 18.
35
The information in this complaint that is specified as originating from interviews of detainees in the Jail is
supported by the additional declarations of Sean Alexander (Ex. L hereto); Christopher Zeigler (Ex. M hereto); Aish
Ayyash (Ex. N hereto); Darnell Singelton (Ex. O hereto); Edward Reed (Ex. P hereto); Erica Petty (Ex. Q hereto);
Michael Clark (Ex. R hereto); Raymond Sanchez (Ex. S hereto); Tyneshia Perkins (Ex. T hereto); and Rafael Ortiz

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● Anthony Mays is 38 years old. He has diabetes and had been referred for an evaluation
of a heart condition when COVID-19 hit the jail. He is housed in Division 8, in an open-
dormitory setting. The dormitory has beds that are paced two feet apart. There are
approximately 40 beds on Mr. Mays’ tier, and it is full (“packed”). Mays estimates that
only two of the beds are empty. Declaration of Anthony Mays (Ex. D).

● Vincent Stewart has Hodgkin’s Lymphoma, and his white blood count is currently 33%
of the normal rate. Mr. Stewart is housed in Division 8, in an open dormitory setting.
Everyone in the dormitory must share the same microwave for cooking food. He has
been given no additional cleaning or sanitizing products since the outbreak of COVID-19
in Illinois and in the Jail. He states that detainees are not given any personal protective
equipment. Affidavit of Matthew McLoughlin on Behalf of Shirley Stewart for Vincent
Stewart (Ex. E).

● Kenneth Foster is 39 years old. He resides in Division 2. Mr. Foster has stomach cancer,
Lung-Sarcoidosis, high blood pressure, asthma and bronchitis. He is living in a dorm
setting in Division 2. He sleeps on a lower bunk. Everyone on his tier sleeps very close
together. Everyone on Mr. Foster’s tier shares a shower and bathroom area. Everyone is
together all the time and there is very little privacy. Five or six people from Mr. Foster’s
dorm have tested positive for COVID-19. The people who tested positive for the virus
were removed from the dorm. Affidavit of Christina Lorenzo on Behalf of Judia Jackson
for Kenneth Foster (Ex. F).

● Sharita Parks is 35 years old. She is housed in Division 8, in an open-dormitory setting.

The other detainees on her tier sleep close to her, and all the women on the dormitory
share a bathroom and shower area, as well as a common eating area. One woman in the
tier tested positive for COVID-19, and was removed from the dorm. Affidavit of
Christina Lorenzo on Behalf of Crystal Smith for Sharita Parks (Ex. G).

● Charles Wimberly is 22 years old. He has bronchitis. Mr. Wimberly is housed in

Division 6. He shares a cell with another cellmate. The detainees in the division have a
shared shower area. Mr. Wimberly does not have access to soap. He has not received
hand sanitizer in over a week. He states that the Jail does not provide personal protective
equipment to detainees. Mr. Wimberly uses his shirt to cover the phone, because staff are
not cleaning the phones. Affidavit of Christina Lorenzo on Behalf of Jala Burns for
Charles James Wimberly (Ex. H).

● Carver Young was housed in Division 2 until he was released from the Jail on March 26.
His tier was a large dormitory room, shared with 350 to 400 other people. They spent all
day in the same room. Bunks in Division 2 were approximately a foot apart. There were
about 30 showers, 11 or 12 toilets, and 4 large sinks with 3 hoses on each sink shared by
all the men. At the time he left, each detainee received one small bar of soap per week.

(Ex. U hereto), see also Testimony from Inside Cook County Jail about the Conditions and Needs of Incarcerated
People (Ex. V hereto).

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Other than some officers wearing masks, he did not see changes to procedure relating to
COVID-19. Declaration of Carver Young (Ex. I).

● Terrance Robinson is 26 years old and residing in Division 6. He suffers from bronchitis
and symptoms that include a fever and scratchy throat. Despite those symptoms, he is still
co-living with a cellmate. Division 6, where he resides, is on lockdown because it is in
quarantine. Two men in the division got sick with the virus. Both were transferred off the
deck. Mr. Robinson does not know what happened to them. Declaration of Christina
Lorenzo on Behalf of Mary Robinson for Terrance Robinson (Ex. J).

● Brandon Mathis is 26 years old. He resides in Division 11 with a cellmate. Mr. Mathis
was previously shot in the throat, and his throat was reconstructed, making it hard for him
to breathe. He had open heart surgery when he was a child. He suffers from blood clots
and swelling in his feet. Social distancing is not possible in the division. All detainees are
close together when they are in the common room, on the phones, or in the dayroom. Mr.
Mathis has not been tested for COVID-19 but he has started to feel sick. He feels hot and
like he cannot breathe, and suffers headaches. Declaration of Christina Lorenzo on Behalf
of Andjine Doret for Brandon Mathis (Ex. K).

42. The Jail’s medical staff is being depleted by COVID-19. COVID-19 has a high

rate of infection among medical staff who care for coronavirus patients, which appears to be

depleting ranks of medical staff at the Jail.36 What is more, COVID-19 patients require intensive

care and attention from skilled medical staff to ensure that they remain stable, which taxes

available staff even further.37

43. The Jail’s medical staff is so diminished that medical personnel have no ability to

monitor detainees. This has meant that detainees in non-quarantined environments cannot be

monitored and caught early should they become symptomatic. Even detainees on quarantined tiers

have been largely abandoned. While Division 6 has been quarantined—as reported by multiple

detainees—and though the Division hosted one of the first detainees to have tested positive with

COVID-19,38 detainees there do not report increased testing or even temperatures being taken

36
Puisis et al. ¶ 18
37
Id.
38
https://news.wttw.com/2020/03/23/2-detainees-cook-county-jail-test-positive-covid-19

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within the facility. Corroborating this account, detainees report that their tiers no longer have sick

call slips, with the effect that visibly sick detainees have no way to report their illnesses to medical

personnel.39

44. That is confirmed by the March 31 staff letter. Staff report that “neither the

Sheriff’s Office nor Cook County Health is conducting regular temperature checks on incarcerated

people to identify those with symptoms of COVID-19.” Detainees in the quarantine tiers are not

being monitored or having their temperature taken because there are not enough nurses to do so.

Without any infection control, these “quarantines” are really just incubators of the infection and

are rapidly spreading the disease.

45. Additionally, with so few medical staff, the existing health staff employees—i.e.,

those dealing with sick detainees—must travel all over the facility to carry out their duties,

potentially spreading the illness from one division to another. Indeed, to make matters worse, the

March 31 letter reports that many of these employees do not have access to N95 masks, increasing

their chances of infection and further raising the risk that they will infect other staff and

incarcerated people, spreading the infection even further.

46. The Jail does not have sufficient personal protective equipment. Because there

are still so many detainees to oversee, a large number of staff are needed throughout the Jail

complex. And there is not enough personal protective equipment (“PPE”) to go around. N95

masks are being rationed among officers, and those officers who do have PPE are being limited to

one mask per shift. Other officers have been given surgical masks and told to store them in plastic

bags for reuse, and many officers have no masks at all. Staff who work on quarantine units,

meanwhile, are given more protective equipment, but they are told to re-use it or have it

 
39
Affidavit of Stephen Weil on Behalf of Anthony Mays.
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“sanitized”—even when the equipment is specified as single-use. There is no indication that such

single-use protective equipment can be effectively sanitized, particularly for a new and little

understood virus.

47. And as the supporting declarations make clear, on information and belief, no

detainees have access to any PPE, even if they are symptomatic.

48. The Jail has not been able to provide basic hygiene. The Sheriff also has not

trained all its staff in mitigating the spread of COVID-19. Staff report that “Officers have not been

trained on how to teach incarcerated people to properly disinfect showers, bathrooms, common

spaces in housing units that numerous people and employees come into contact with, or their own

cells. Officers also uniformly report that the Sheriff’s Office has not provided them with additional

disinfectant or other cleaning supplies to sanitize their own workspaces or other surfaces in the

facility that numerous employees come into contact with. Employees report that cleaning supplies

that used to be available, including disinfectant wipes, have disappeared. In addition, multiple

employees report the reuse of dirty rags without proper disinfection.”

49. Correctional staff have not been trained to avoid spreading the disease. With so

many staff still needed to operate the jail, there evidently have not been enough time or resources

to train them. The March 31 staff letter reports that “[c]orrectional personnel have not been trained

on how to protect themselves from contracting or spreading COVID-19.” Staff have not been

trained either in protecting themselves or the people incarcerated, how to disinfect the various

surfaces in the jail that are touched by incarcerated people and staff constantly, or how to safely

dispose of the minimal personal protective equipment that they have been provided.

50. This failure to train is acute. It includes correctional staff assigned to the

quarantined tiers housing people who have tested positive for COVID-19. Having received no

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training in how to avoid transmission, these staff routinely exit the COVID-19 quarantines and

cross-contaminate passageways, work areas, and other parts of the Jail.

51. The Jail cannot stop corrections staff from importing the virus. COVID-19 poses

a particular threat because a person can be entirely asymptomatic, yet spread the disease to others.

The drastic social distancing measures that have been imposed across the country are designed to

combat precisely this problem—staying at home, we are able to limit our contact with other

persons, even those who are asymptomatic. But every day hundreds of jail employees, working

on three different shifts, travel into and out of the jail. Any one of those employees can be

carrying—and transmitting—COVID-19, and Sheriff Dart has candidly admitted he has no means

of stopping this disease vector.

52. But the Sheriff has failed to take even modest measures to cut back on the

transmission. The March 31 letter also reports that, apparently due to a lack of medical staff,

temperature checks are not being performed on all staff entering the jail, either. Indeed, a number

of employees assigned to the Jail’s health facility report that they were not checked at all. And the

March 31 letter reports that while some temperature checks appear to have begun on staff entering

some facilities, they are being done with industrial temperature “guns” that are specifically marked

as “not for use on humans or animals,” indicating the Sheriff simply lacks the capacity to conduct

testing.

53. In so many words, the Jail has failed, in plenary fashion, to implement basic

measures that will prevent the COVID-19 pandemic from sweeping through the facility.

F. COVID-19 is overrunning the Cook County Jail.

54. That catastrophe, indeed, has arrived. On March 22, the first Cook County

Department of Corrections employee tested positive for COVID-19. On March 23, the first

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incarcerated person tested positive. That was eleven days ago. Officially, as of this filing 46 Jail

staff have tested positive, while 167 detainees have tested positive. That “attack rate”—that is, the

rate at which the population is being infected—is a double-digit multiple of the rate in Cook

County.

55. Put differently, the Cook County Jail has shown itself to be a powerful accelerator

of COVID-19. The Jail’s detainees, and its staff, are all drawn from Cook County. In Cook

County, the current COVID-19 infection rate is .87 per 1,000 people. The rate of infection inside

the jail on the other hand, is 35.45 per 1,000 people—40 times the infection rate of the surrounding

population.

56. If anything, however, these figures dramatically undercount the rate of infection.

Staff and detainees alike report that hundreds of detainees still live in congregate dorms where

little or no preventative testing is being done to identify and remove sick detainees. Moreover, as

Dr. Puisis and his colleagues set forth, the logic of “quarantine” in such settings is simply

unsustainable40; the Jail, rather, is quickly reaching a the point where it will be forced to house

detainees suffering from COVID-19 in open, close settings with hundreds of other people, leaving

this highly contagious disease to spread freely and rapidly in the population. And given the serious

ailments that many detainees already suffer from, there is every reason to expect that numerous

detainees at the Jail will die if they are not released immediately. The Sheriff has ceased updating

daily information on the number of infected detainees at the Jail. The last update of the infection

count occurred on April 2.

57. The Sheriff has the authority to address these conditions. But he has intentionally

failed to use it to protect the lives of those in the Jail. Under the Illinois County Jail Act, 730 ILCS

40
Pusis et al. ¶ 16.
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§ 125/14, when the Sheriff, as the Warden of the Jail, believes “the lives or health of the prisoners

are endangered,” he has the authority to “remove” a “group of prisoners… to some suitable place

within the county… where they may be confined until they can be safely returned to the place

whence they were removed.” This statutorily-created authority, in effect since 2012, endows the

Sheriff with the ability to place prisoners in his custody who face a health risk on Electronic

Monitoring or Home Confinement or in some other place in Cook County, in order to protect the

lives of those prisoners.

58. The Sheriff has intentionally failed to utilize this statutory authority in the midst

of a national pandemic and state emergency, while a growing number of detainees and staff are

infected and made sick every day.

59. As a result, the Sheriff has been deliberately indifferent to the rights and

wellbeing of all the prisoners in his custody, in violation of the Fourteenth Amendment.

CLASS ACTION ALLEGATIONS

60. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the

individual named Plaintiffs bring this action on behalf of themselves and 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. The class allegations and law are set forth in more detail in

the accompanying motion for class certification.

61. This Class includes 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.

62. Subclass B consists of all people who are currently housed on a tier where someone

has already tested positive for the coronavirus.

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63. A class action is the only practicable means by which the individual named

Plaintiffs and the class members can challenge the Sheriff’s unconstitutional actions. Many

members of the class are without the means to retain an attorney to represent them in a civil rights

lawsuit.

64. The class and subclasses are so numerous that joinder of all members is impractical.

The number of people in custody exceeds 4,700, and each subclass contains at least hundreds of

persons. Specifically, demographic data regarding the health of correctional populations, which

is set forth above, indicates that Subclass A consists of hundreds of persons. Subclass B, likewise,

consists of hundreds of persons, including but not limited to all detainees in Division 6, who live

on tiers where one or more infected persons was present.

65. There are questions of law and fact common to all class members and the subclass,

including, among many others: (1) does COVID-19 present a substantial risk of harm to people

detained in the Cook County Jail? And (2) is the Sheriff adequately protecting the class members

from the risk of serious harm? These questions are also typical to each member of the sub-classes.

Additionally, the members of Subclass A share the common question of their particular

vulnerability to the COVID-19 pandemic, while the members of Subclass B share the common

question regarding whether they are entitled to a safer environment.

66. The claims of the class representatives are typical of the claims of the class, and of

the subclasses. That typicality stems from their claim that Dart has placed them at significant risk

of harm by failing to take appropriate steps to address the risk of COVID-19 throughout the Cook

County Jail. Every person at the Jail faces a heightened risk of risk of contracting COVID-19 if

they are not adequately protected by Dart.

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67. The claims of the subclass representatives are typical of the subclass members as

well. The claims of the representatives of Subclass A are typical as each member is subject to

increased risk as a result of their existing medical conditions. The claims of the representatives of

Subclass B are typical in that they are all threatened with infection because of their housing

location, which would be resolved with the proposed remedy.

68. The individual named Plaintiffs will fairly and adequately represent the interests of

the class and subclasses. The named Plaintiffs have no conflicts with the unnamed members of the

proposed class. In addition, their lawyers are experienced in federal court civil rights class actions,

particularly those involving prisons and jails.

69. The Defendant has failed to act in a manner that applies generally to the class as a

whole, rendering class-wide injunctive and declaratory relief appropriate.

COUNT I
42 U.S.C. § 1983 (on behalf of all Class members), Fourteenth Amendment

70. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth in this

Count.

71. Plaintiffs and the classes they represent have been deprived and continue to be

deprived by the Defendant of their rights under the Fourteenth Amendment to reasonably safe

living conditions. Specifically, Defendant is aware of the substantial risk of harm that COVID-19

poses to all individuals, and is further aware of the particular risks of severe illness and possible

death that Plaintiffs face as a result of the inherently congregate and unclean settings in the Cook

County Jail. Despite this knowledge, Defendant has failed to take reasonable measures to mitigate

these dangers.

72. As a result of Defendant’s actions and inactions, class members face a substantial

risk of contracting COVID-19 and sustaining a serious illness that could lead to death.

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73. Defendant’s failure to take appropriate steps to curb the substantial threat posed by

COVID-19 to each person in his custody, as described more fully above, violates Plaintiff’s rights

to unreasonable risk of death and bodily harm.

74. Consequently, the Defendants are in continuous violation of these Plaintiffs’ rights

and the rights of the members of the subclasses under the Fourteenth Amendment to the United

States Constitution.

75. Plaintiffs seek injunctive and declaratory relief against all Defendants to prevent

the continued violation of the rights of Plaintiffs and the class they represent.

COUNT II
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (on behalf of Subclass A)

76. Subclass A petitioners repeat and re-allege the preceding paragraphs as if fully set

forth in this Count.

77. Subclass A Petitioners are not in custody pursuant to a judgment of conviction of a

state court.

78. Subclass A Petitioners should be deemed to have exhausted state court remedies.

Because they seek release in light of the immediate and urgent risks to their health and lives, there

is no remedy that could be pursued in the courts of the State of Illinois that would protect their

rights. Exhaustion of any such remedy would be futile.

79. Respondent is holding Subclass A Petitioners in custody in violation of the Due

Process Clause of the Fourteenth Amendment to the Constitution of the United States. Due

Process forbids exposing Petitioner to a severe risk of death, pain, or permanent severe injury, and

at this time no options available to Respondent will adequately mitigate that risk other than

immediate release from custody.

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REQUEST FOR RELIEF

WHEREFORE, Plaintiffs on behalf of themselves and the class they seek to represent,

request that this Court enter judgment in their favor and against Defendant Tom Dart and order

the following relief:

a. Order immediate release pursuant to a writ of habeas corpus for members of Subclass

A: People in custody who have vulnerabilities that place them in heightened risk of

contracting serious COVID 19, including persons over the age of 65 and persons with

underlying medical conditions that put them at particular risk of serious harm or death

from COVID-19, including but not limited to people with respiratory conditions

including chronic lung disease or moderate to severe asthma; people with heart disease

or other heart conditions; people who are immunocompromised as a result of cancer,

HIV/AIDS, or any other condition or related to treatment for a medical condition;

people with chronic liver or kidney disease or renal failure (including hepatitis and

dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders

(including sickle cell disease), inherited metabolic disorders; people who have had or

are at risk of stroke; and people with any other condition specifically identified by CDC

either now or in the future as being a particular risk for severe illness and/or death

caused by COVID-19.

b. Issue a temporary restraining order, preliminary injunction, and final judgment for all

Class members requiring the Sheriff to implement constitutionally sufficient

procedures to protect their health and safety that are consistent with CDC guidelines

and the expert judgment of correctional health specialists.

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c. Issue a temporary restraining order, preliminary injunction, and final judgment for all

members of Subclass B requiring the Sheriff to transfer them to a safe facility or some

other form of custody.

d. Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to

42 U.S.C. § 1988 and 28 U.S.C § 2241.

e. Grant such other relief as this Court deems just and proper.

Dated: April 3, 2020 Respectfully submitted,

s// Stephen H. Weil

Stephen H. Weil
Sarah Grady
LOEVY & LOEVY
311 N. Aberdeen Street, #3
Chicago, IL 60607
Tel: 312-243-5900
Fax: 312-243-5902
weil@loevy.com
sarah@loevy.com

Locke E. Bowman
Alexa A. Van Brunt
Roderick and Solange MacArthur Justice Center
Northwestern Pritzker School of Law
375 E. Chicago Avenue, Chicago, IL 60611
(312) 503-0884
l-bowman@law.northwestern.edu
a-vanbrunt@law.northwestern.edu

Charles Gerstein (pro hac vice application forthcoming)

Alec Karakatsanis (pro hac vice application forthcoming)
Civil Rights Corps
1601 Connecticut Ave NW, Suite 800
Washington, DC 20009
charlie@civilrightscorps.org
202-894-6128
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VERIFICATION

I, Stephen H. Weil, represent Plaintiff-Petitioners, and I hereby verify the foregoing

allegations on his behalf and on behalf of Subclass A Petitioners pursuant to 28 U.S.C. § 2242.

/s/ Stephen H. Weil

30