Davis et al v. Baldwin

Filing 230

CLASS CERTIFICATION ORDER: 173 Plaintiffs' Motion to Certify Class is GRANTED; 225 Defendant's Motion for Leave to File Supplemental Information & Authority is GRANTED IN PART AND DENIED IN PART; 227 Defendant's Motion For Lea ve to Submit Supplemental Authority is GRANTED. The Clerk of Court is DIRECTED to SUBSTITUTE Rob Jeffreys, in his official capacity, for John Baldwin as the Defendant in this case. The Clerk is further DIRECTED to strike certain documents and add not es to the docket, as set forth on pages 4 and 59 of the attached PDF Order. Plaintiffs shall submit the exhibits to their Complaint and Eldon Vail's expert report in accordance with the instructions on pages 3 and 59 of the attached PDF Order. This matter will be set for a status hearing by separate Order. Signed by Magistrate Judge Mark A. Beatty on 6/14/21. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HENRY DAVIS, et al.,

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Plaintiffs,
vs.
JOHN BALDWIN,
Defendant.

Case No. 3:16-CV-600-MAB

MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
This matter is currently before the Court on Plaintiffs’ motion for class certification
(Doc. 173) and Defendant’s motions for leave to submit supplemental authority and/or
evidence (Docs. 225, 227).
INTRODUCTION
Plaintiffs are six inmates who have been housed in segregation at various facilities
throughout the Illinois Department of Corrections (IDOC). They filed this two-count
putative class action alleging that the IDOC’s use of segregation, which they claim is
tantamount to “extreme isolation,”1 violates constitutional standards. Defendant is John
Baldwin, who was the acting director of the IDOC at the time this lawsuit was filed on
June 2, 2016.2 Plaintiffs allege in Count 1 that the conditions they are subjected to in

1

The meaning of the term “extreme isolation” is discussed below in the “Factual Background” section.

Plaintiffs sued John Baldwin in his official capacity as Acting Director of the Illinois Department of
Corrections (Doc. 1, p. 8). In June 2019, Baldwin was replaced by Rob Jeffreys, who is the current Acting
Director of IDOC. Pursuant to Federal Rule of Civil Procedure 25(d), Rob Jeffreys is automatically
substituted as a party to this action.
2

1

extreme isolation deprive them of basic human needs and inflict disproportionate
punishment in violation of the Eighth Amendment (Doc. 1, pp. 61–63). In Count 2,
Plaintiffs allege they have a protected liberty interest in avoiding extreme isolation and
the IDOC’s hearing and review procedures for prisoners sentenced to extreme isolation
are devoid of the due process protections guaranteed by the Fourteenth Amendment (Id.
at pp. 63–64).
Plaintiffs filed their motion for class certification on September 6, 2019 (Docs. 173,
174, 175, 176, 177, 222).3 They seek to certify the following class:
All prisoners who are now or will be incarcerated in adult correctional
facilities by the Illinois Department of Corrections and thus who are at risk
of being subjected to extreme isolation or who are currently subjected to
extreme isolation.
(Doc. 173).
Defendant filed his response in opposition on December 20, 2019 (Docs. 190, 191,
192, 193, 194). Plaintiffs filed their reply on February 14, 2020 (Doc. 197, 198, 224). The
undersigned was not able to hear oral arguments until July 16, 2020 due to interruptions
in court proceedings caused by the COVID-19 pandemic. Following oral argument, the
motion for class certification was taken under advisement, (Docs. 219, 220), and the
parties submitted proposed findings of fact and conclusions of law. Since then, Defendant

Plaintiffs initially submitted both an unsealed, redacted version of their supporting memorandum and
exhibits (Doc. 174, Doc. 175) and a sealed, unredacted version (Doc. 176, Doc. 177). After the Court
expressed reservations as to whether all of the redacted information and sealed exhibits truly warranted
confidentiality (Doc. 219, Doc. 220; see also Doc. 221), the parties conferred and agreed that many of the
redactions were unnecessary and a number of exhibits could also be unsealed (see Doc. 221). Following
additional rulings and instructions from the Court, Plaintiffs filed a new public, redacted version of their
supporting memorandum, exhibits, exhibit list, and reply brief (Docs. 222, 223, 224). The Court cites to the
newer versions of these documents throughout this Order.
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2

John Baldwin has filed two motions for leave to supplement his response brief (Docs. 225,
227). Plaintiffs oppose both motions (Docs. 226, 229).
MISCELLANEOUS HOUSEKEEPING MATTERS
Plaintiffs’ complaint references seven exhibits (A through G), including several
documents pertaining to the Vera Institute’s work with the IDOC regarding its
segregation policies and recommendations for reform (see Doc. 1). A subsequent
Stipulation and Order signed by the parties regarding the Vera Institute’s work also refers
back and cites to some of the complaint’s exhibits (see Doc. 115). However, none of those
exhibits were actually filed with the complaint. The Court assumes this was simply the
result of an unintentional oversight (see Doc. 1). In order to correct the omission, Plaintiffs
should file the exhibits as a new entry on the docket, and the Court will link it back to the
complaint on the docket.
Similarly, Eldon Vail’s expert report indicates that there is an Appendix A and an
Appendix B attached to the report, however, neither of the Appendices were included
with any version of the filed report (see Doc. 174-4; Doc. 176-4; Doc. 222-4). In order to
correct the omission, Plaintiffs should submit a new public, redacted version of the report
(including the Appendices) directly to the Court at [e-mail]. The Court
will then replace the existing report at Doc. 222-4 with the new report. If there is
information in the Appendices that must be kept confidential, Plaintiffs should also
submit an unredacted version of the report (including the unredacted Appendices),
which the Court will use to replace the existing sealed version at Doc. 176-4.

3

Finally, per the Court’s previous instructions, the initial versions of Plaintiffs’
unsealed, redacted memorandum, their exhibit list, and their reply brief will be stricken
from the docket with a note that updated versions were subsequently filed (see Doc. 221).
If the parties have any questions regarding these instructions, they may jointly
contact chambers.
MOTIONS TO SUPPLEMENT (Docs. 225, 227)
Defendant seeks to provide the Court with additional authority. First, Defendant
wants to submit the opinions issued by the Seventh Circuit in McFields v. Dart, 982 F.3d
511 (7th Cir. 2020) and Howard v. Cook County Sheriff’s Office, 989 F.3d 587 (7th Cir. 2021)
as supplemental authority (Doc. 225, Doc. 227). But these opinions are not new authority
that changes the law governing Plaintiffs’ class action. See SDIL-LR 7.1. They are simply
the latest opinions from the Seventh Circuit about a class action in the prison context.
Although Plaintiffs object to Defendant’s attempts to submit these new opinions as
supplemental authority (Docs. 226, 229), the Court notes they also previously submitted
supplemental authority (Doc. 209). Plaintiffs, however, filed it as a “notice,” rather than
as a motion (Id.). In other words, they simply submitted their supplemental authority
without first asking the Court’s permission to do so, like Defendant has here. Defendant
filed a response in opposition to Plaintiffs’ “notice,” and asked the Court to strike it (Doc.
211), however, the Court opted not to take any action. Ultimately here, what is good for
the goose is good for the gander, and therefore the Court will allow Defendant to
supplement the record with their additional authority. The Court will review the McFields
and Howard decisions but does not need any further briefing from the parties.
4

Defendant also seeks to provide the Court with additional evidence concerning
the IDOC’s continued efforts to review and revise its restrictive housing policies, which
he says bears on his argument that there is no basis for class-wide relief under Rule
23(b)(2) (Doc. 225). Specifically, Defendant wants to submit the new Administrative
Directive pertaining to restrictive housing (AD 05.15.100) that was enacted in October
2020 (Id.; see Doc. 225-3). Defendant contends “has contributed to a sharp decrease in the
numbers of segregation prisoners”4 (Doc. 225). Defendant also wants to submit updated
data from December 31, 2020 showing the year-end segregation numbers (Doc. 225; see
Doc. 225-4).
This request is denied. Defendant did not provide any explanation as to how the
new policy actually led to a consequent reduction in the number of prisoners held in
restrictive housing (see Doc. 225). The Court is not going to scrutinize the 17-page policy
to try to draw its own conclusions about the cause-effect relationship between the policy
and the reduced population in restrictive housing. Furthermore, the simple fact that the
IDOC is housing fewer prisoners in restrictive housing does not somehow defeat class
certification. It simply means that a smaller, although still substantial, number of
prisoners are currently being subjected to the purported unconstitutional procedures and
conditions of confinement regarding restrictive housing.

This is the only reason Defendant provided for his desire to supplement the record with the new
Administrative Directive (see Doc. 225). Defendant did not mention any other aspect of the Administrative
Directive, such as any changes to the process by which prisoners are sent to restrictive housing or the
conditions of confinement in restrictive housing (see Doc. 225). Consequently, the Court has not reviewed
the Administrative Directive for those type of facts and they do not factor into the Court’s decision as to
whether Defendant should be allowed to supplement the record with the Administrative Directive.
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For these reasons, Defendant’s first motion to supplement is granted in part and
denied in part, and the second motion to supplement is granted.
MOTION FOR CLASS CERTIFICATION (Doc. 173)
The parties submitted extensive briefing and evidence in this matter. There were
almost 100 exhibits, totaling approximately 2100 pages.5 The exhibits included internal
documents and records from the IDOC; depositions of at least six current or former IDOC
officials, the six named Plaintiffs, and one other putative class member; and expert
reports and follow-up depositions from Plaintiffs’ retained expert witnesses: Dr. Craig
Haney and Mr. Eldon Vail.
Dr. Craig Haney holds a PhD in psychology and a juris doctor from Stanford
University, and he has been a professor at the University of California, Santa Cruz for
over 40 years (Doc. 222-3, pp. 118–119; Doc. 190-13). Dr. Haney has spent decades
studying the psychological effects of various prison conditions, including the nature and
consequences of solitary confinement. He was retained by Plaintiffs to provide a
summary of what is known about the negative psychological consequences of restrictive
housing for both non-mentally ill and mentally ill prisoners. He was also asked to provide
an opinion regarding the extent to which IDOC prisoners in restrictive housing are

Given the volume of evidence, citing to all relevant documents has proven cumbersome and timeconsuming. Therefore, throughout this Order, the Court cites to specific exhibits and page numbers (the
ones imprinted by CM/ECF at the top of the page) when able, but at other times for the sake of ease and
efficiency, the Court cites only to the parties’ briefs, which in turn contain citations to the relevant exhibits.
The Court wishes to note that counsel for both parties were extremely diligent in cataloging all of the
relevant exhibits that support each and every fact stated throughout their briefs. Moreover, both parties
were accurate and honest in their representations of the evidence without embellishments or
mischaracterizations. The Court greatly appreciates this and commends both parties’ efforts and candor.
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subjected to conditions of confinement that place them at a serious risk of psychological
harm.
Eldon Vail is former correctional administrator with 35 years of experience
working in and administering adult and juvenile correctional institutions in the State of
Washington (Doc. 222-4, Doc. 191-14). He was retained by Plaintiffs, in short, to evaluate
the IDOC’s restrictive housing policies and practices, opine on the deficiencies, and
suggest reforms.
The IDOC operates 25 correctional facilities throughout the state (Doc. 190, p. 7;
Doc. 222, p. 196). Dr. Haney and Mr. Vail both toured and inspected six of the facilities:
Stateville, Pontiac, Dixon, Menard, Lawrence, and Logan Correctional Centers (Doc. 2223, p. 8; Doc. 222-4, p. 4). They both had brief conversations with random prisoners they
encountered while touring the facilities; these were often “cell-front” conversations but
some were also with prisoners out on the yard (Doc. 222-3, pp. 10, 50–51; Doc. 222-4, p.
4). They both also conducted private, individual interviews with several dozen prisoners
(Id.).
Notably, Defendant does not have any rebuttal experts, and Dr. Haney and Mr.
Vail’s reports are uncontested at this time. The testimony from the inmates who were
deposed is also essentially uncontested by Defendant (see Doc. 190). Defendant tried to
pick apart the inmates’ testimony by highlighting minor internal discrepancies (see Doc.

6

It appears from the evidence that there are restrictive housing units at all 25 facilities (see Doc. 192-5).

7

190, pp. 13–26), but Defendant did not offer any of his own evidence demonstrating that
life in IDOC prisons was anything other than how the inmates described it.
FACTUAL BACKGROUND
A. “EXTREME ISOLATION”
As previously mentioned, Plaintiffs brought this action to challenge the IDOC’s
use of “extreme isolation.” According to Plaintiffs, “‘[e]xtreme isolation’ is the consensus
term used by correctional experts . . . to describe segregation from the mainstream
prisoner population . . . where prisoners are involuntarily confined to their cells for
upwards of 22 to 24 hours a day, given only extremely limited or no opportunities for
direct and normal social contact with other persons (i.e., contact that is not mediated by
bars, restraints, security glass or screens, and the like), and afforded extremely limited if
any access to meaningful programming of any kind.” (Doc. 1, ¶ 2; see also Doc. 222, p. 9,
n.1).
The IDOC does not use the term “extreme isolation,” but rather uses the term
“restrictive housing” to refer to inmates confined in segregation outside of the normal
general population (Doc. 190, p. 10). However, various IDOC officials admitted that
extreme isolation as defined by Plaintiffs is generally what is occurring in restrictive
housing throughout Illinois prisons (Doc. 191-12, pp. 24–25 (Randy Pfister); Doc. 222-19,
pp. 5–6 (John Baldwin); Doc. 222-34, p. 6 (Kimberly Butler)).
Additionally, Plaintiffs’ expert, Dr. Craig Haney, said “restrictive housing,”
particularly as it is practiced in the IDOC, clearly constitutes “solitary confinement” (Doc.
222-3, pp. 11, 15). The term “solitary confinement” as it is used in scientific, legal, and
8

human rights literature, as well as, in common correctional parlance, refers to conditions
of “severe (but not total) isolation from others” (Id. at p. 15).7 For the purposes of this
Order, the Court uses the terms “restrictive housing,” “segregation,” and “extreme
isolation” interchangeably and synonymously.
B. RESEARCH ON EXTREME ISOLATION
Dr. Haney explained that psychologists have long known that social contact is
fundamental to establishing and maintaining emotional health and well-being—the
human brain is literally “wired to connect” to others (Doc. 222-3, pp. 7, 17–18). It is wellestablished based on extensive research and data that “meaningful social contact is a
fundamental human need” and the need for “caring human touch” is likewise
“fundamental” (Id. at pp. 16, 24).
Dr. Haney reported that numerous studies have shown that social deprivation,
isolation, and exclusion in contexts outside of prison are potentially very harmful and
known to produce a host of serious adverse cognitive, emotional, behavioral, and
physical impairments, which can even cause permanent and irreparable damage to a
person’s overall psychological and physical functioning (Id. at pp. 10–11, 16–25). For
example, social isolation is a significant risk factor for anxiety and depression. It is related
to paranoia, delusional or psychotic beliefs, and suicidal behavior. It can lead to
decreased cognitive functions and difficulties with thinking, concentration, memory, and
self-regulation (Id.). It can cause lethargy, reduced empathy, emotional numbing, an

7 According

to Dr. Haney, “[f]or perhaps obvious reasons, total and absolute solitary confinement—literally
complete isolation from any form of human contact—does not exist in prison and never has.” (Doc. 222-3,
p. 15).

9

absence of meaningful thought, and aggressive or even violent behavior. Social isolation
is also known to adversely impact the functioning of the human immune system and
undermines health outcomes in general (Id.). In fact, social isolation has been shown to
literally lower the age at which people die (Id.).
Again, this is what happens to socially isolated individuals outside of prison.
According to Dr. Haney, “there is every reason to believe” that the harm caused to
prisoners in solitary confinement is even worse (Doc. 222-3 pp. 15–16, 25–26). Prisoners
in solitary confinement experience not only “sheer deprivation of meaningful social
contact” but also commonly experience high levels of repressive control, enforced
idleness due to a dearth or complete absence of meaningful mental activity and
programming, nonexistent or greatly reduced physical activity, a lack of positive
environmental stimulation, and severe restrictions on property, all of which cause
additional psychological distress (Id. at pp. 25, 36–37). Consequently, the social isolation
in solitary confinement is “far more stressful, harmful, and dangerous than in the larger
society where these deleterious effects have been elaborately documented” (Id. at p. 25).
Extensive research has shown that prisoners in segregation display a range of
predictable and problematic symptoms of psychological stress (Doc. 222-3, pp. 26–34).
These symptoms include: irritability, anxiety, paranoia, irrational anger, aggression, rage,
hopelessness, and appetite and sleep disturbances (Id.). Research has also demonstrated
a broad range of psychological reactions to extreme isolation, such as: hypersensitivity to
external stimuli; difficulties with thinking, concentration, and memory; ruminations and
intrusive thoughts; and panic and loss of control. Some prisoners even report
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hallucinations, perceptual distortions, self-mutilation, and suicidal ideation and behavior
(Id.). Correlational studies have also demonstrated that suicide rates and self-mutilation
are more prevalent in extreme isolation or restrictive housing (Id.). Additionally, research
suggests that other violent acts, such as stabbings, attacks on staff, property destruction,
and collective violence, are also more prevalent in restrictive housing (Id.).
But these symptoms and psychopathological reactions to social isolation do not
paint the full picture of the harm that may occur in segregation (Doc. 222-3, pp. 35–36).
Prisoners in solitary confinement are forced to develop their own socially pathological
adaptations in order to function and survive—over time, their patterns of thinking,
acting, and feeling are changed. For example, some prisoners cope with the void of
normal social contact by withdrawing even further and receding even more deeply into
themselves (Id.). For others, social interaction becomes uncomfortable, disorienting, and
even frightening (Id.). One inmate who Dr. Haney encountered said, “It’s more normal
to be alone. Even in the yard, I walk away from people. I can get a little hug from [my]
family but I’m uncomfortable with the touch. It feels unnatural, even with my dad.” (Id.
at p. 89). While these adaptations are functional and even necessary in solitary
confinement, they can become especially painful and disabling if taken to extremes, or if
and when they are internalized so deeply that they persist long after time in isolation has
ended (Id. at p. 36). Additionally, the prolonged and profound mental and physical
inactivity in extreme isolation is a form of sensory deprivation that can destroy important
perceptual, cognitive, and physical skills and capacities (Id. at p. 37). The extreme social
deprivation prisoners face in solitary confinement can “undermine an individual’s social
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identity, destabilize [their] sense of self, and ultimately destroy [their] ability to function
normally in free society.” (Id. at p. 35).
As Mr. Vail put it, there is broad consensus in the corrections field and in the
scientific and academic literature that the placement of prisoners in segregation creates a
significant risk of harm, for all prisoners who are subjected to it, even prisoners without
a preexisting mental illness (Doc. 222-4, pp. 43, 84; see also Doc. 222-3, pp. 27–28).
However, mentally ill prisoners are especially vulnerable to the psychological pain and
pressure in solitary confinement and therefore particularly at risk (Doc. 222-3, pp. 38–43).
C. THE IDOC’S RESTRICTIVE HOUSING NUMBERS
Publicly available data shows that in 2018 the total population of the IDOC at the
end of each month was, on average, around 39,000 inmates.8 That same data shows in
2019, it was a little over 38,000 inmates,9 and in 2020, it dropped to around 32,500.

See ILLINOIS DEP’T OF CORRECTIONS, Operation and Management Reports, June 2018 through December
2018,
available
at
https://www2.illinois.gov/idoc/reportsandstatistics/Pages/Operation-andManagement-reports.aspx.
8

However, Defendant submitted excerpts of the IDOC’s Weekly Segregation Tracking Spreadsheet
showing the average total population of the IDOC in 2019 was 40,145 (Doc. 192-1). This same number was
reflected in the Selection of 2020 Weekly Segregation Tracking dated July 9, 2020, which was provided by
Defendant to the Court and Plaintiffs’ counsel via email prior to the hearing on the motion for class
certification.
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Data submitted by the parties shows that in 2018, approximately 9,100 inmates
were assigned to restrictive housing for one or more days (Doc. 177, p. 6),10 with
somewhere around 1,600 in restrictive housing on any given day.11
Of the inmates held in restrictive housing over a period of four years ending on
December 31, 2018, there were 19,966 inmates (or approximately 64% of the inmates who
were held in restrictive housing during that time period) who spent at least 30 days in
restrictive housing (see Doc. 177, ¶4). There were 11, 891 inmates (or 38%) who spent at
least 60 days in restrictive housing (Id.). There were 9,123 inmates (or 29%) who spent at
least 90 days in restrictive housing (Id.). There were 5,059 inmates (or 16%) who spent at
least half the year there (Id.). And there were 2,446 inmates (or 8%) who spent at least the
whole year in restrictive housing (Id.).
Additionally, there are hundreds of prisoners who have spent more than one year
in restrictive housing. Data shows that at the end of 2018, there were 1,619 prisoners in
restrictive housing and 709 of them (or 44%) had been there for two or more years, 387
(24%) had been there for five or more years, 256 (16%) had been there for seven or more
years; and 78 (5%) had been there for at least ten years (Doc. 177, ¶9). There were even

This was the last year for which complete data was available at the time Plaintiffs filed their class
certification brief. In 2017, there were approximately 12,200 inmates assigned to restrictive housing for one
or more days; in 2016, there were approximately 13,200 inmates; and in 2015, there were approximately
15,300 inmates (Doc. 177).
10

For example, on an unspecified date in June 2018, there were 1,612 prisoners in restrictive housing, and
on December 31, 2018, there were 1,619 (Doc. 177, pp. 6, 7). In 2019, there was an average daily population
of 1,499 inmates in restrictive housing (Doc. 192-1, p. 8; Selection of 2020 Weekly Segregation Tracking
dated July 9, 2020).
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eleven documented prisoners who had been in restrictive housing for twenty years or more
(Id.).
D. RESTRICTIVE HOUSING POLICIES, CRITICISMS, AND COMPLAINTS
There are four main types of restrictive housing in the IDOC: investigative status,
temporary confinement, disciplinary segregation, and administrative detention (Doc.
190, p. 10). See generally 20 ILL. ADMIN. CODE §§ 504.40, 504.610, 504.630, 504.690 (2017).12
1. Investigative Status and Temporary Confinement
Investigative status is when an inmate is placed in segregation “while an incident
or matter is being investigated.” 20 ILL. ADMIN. CODE § 504.12 (2017); see also id. at §§
504.40, 504.610. Temporary confinement is when an inmate is placed in segregation “until
a determination is made as to whether a disciplinary report or investigative report
[should] be issued” or while waiting for a hearing to be held on a disciplinary report. Id.
at § 504.12; see also id. at §§ 504.40, 504.610. The supervisor decides whether to place an
inmate in investigative status or temporary confinement, and the decision must be
subsequently reviewed by a “reviewing officer.” 20 ILL. ADMIN. CODE §§ 504.40, 504.50(b),
(c) (2017). For temporary confinement, the review must be within three calendar days,
whenever possible. Id. at § 504.50(b). For investigative status, the review must be within
ten calendar days, whenever possible, and consists of the “reviewing officer”
interviewing the inmate to obtain the inmate’s views on the placement and then making

The IDOC’s policies regarding restrictive housing are laid out in the Illinois Administrative Code, title
20, subchapter E, part 504. It is commonly referred to as “Department Rule 504” or “DR 504” (Doc. 190, p.
10).
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a recommendation to the warden on whether to continue the placement. Id. at § 504.50(c).
Placement in investigative status typically lasts no more than 30 days. Id.
2. Disciplinary Segregation
If prison officials opt to proceed on a disciplinary report against an inmate, the
report is assigned to the Adjustment Committee for hearing.13 Illinois regulations provide
that the inmate must receive written notice of the facts and the charges being presented
against him or her at least 24 hours prior to the hearing. 20 ILL. ADMIN. CODE § 504.80(b)
(2017). The inmate may request that witnesses be interviewed prior to the hearing. Id. at
§ 504.80(f). And at the hearing, the inmate may make any relevant statement or produce
any relevant documents in his or her defense. Id.
If the Adjustment Committee decides that the inmate committed the offense
charged, it recommends a disciplinary action. 20 ILL. ADMIN. CODE § 504.80 (2017). The
recommendation must be reviewed and approved by either the warden or the Director
of the IDOC. Id. An inmate may appeal the disciplinary action through the grievance
procedures. Id.
As of 2017, when the regulations were most recently amended, segregation is a
potential punishment for 28 of 46 listed offenses. See 20 ILL. ADMIN. CODE § 504.20, § 504

The regulations provide that “major offenses” (as defined by the regulations) are assigned to the
“adjustment committee” for hearing and “minor offenses” (as defined by the regulations) are assigned to
the “program unit” for hearing. 20 ILL. ADMIN. CODE § 504.50(d)(3) (2017). However, neither party
addresses the particulars of a “program unit” hearing (see Docs. 190, 222, 224). In fact, Defendant never
even mentions the phrase “program unit” in his response brief or in his proposed Findings of Fact and
Conclusions of Law (see Doc. 190). Rather, Defendant only speaks of Adjustment Committee hearings (see
Doc. 190). The Court thus presumes for the purposes of this Order that the IDOC simply opts to have all
disciplinary reports heard by the Adjustment Committee and the discussion regarding disciplinary
hearings is limited to proceedings in front of the Adjustment Committee.
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Table A (2017).14 The maximum term of segregation varies by offense and ranges from
one month, to three months, to six months, to one year; and two offenses can even be
punished with an “indeterminate” term of segregation. See id. Additionally, the IDOC
permits segregation terms to be “stacked” for back-to-back punishments (Doc. 222-3, p.
48; Doc. 222-4, p. 50).15 In other words, prisoners in disciplinary segregation can and often
do receive additional tickets for new infractions committed while they are in segregation
that are then punished with additional segregation time, which is served consecutive to
the term they are already serving. The “stacking” of segregation time can result in
prisoners spending years, or even decades, in disciplinary segregation (Doc. 222-3, p. 50;
Doc. 222-4, p. 51, 52–55, 56; Doc. 191-12, pp. 64–65). There is no limit on the amount of
time a prisoner can be assigned to disciplinary segregation (Doc. 222-19, p. 9).
3. Complaints and Criticisms re: Disciplinary Segregation Placement
In 2009, the IDOC retained the Vera Institute of Justice, an independent,
nonpartisan, nonprofit center for justice policy and practice, to study its segregation
policies and to make recommendations for reform (Doc. 115, p. 1; Doc. 222-18, p. 4). The
Vera Institute, in turn, retained Dr. James Austin, a renowned authority on correctional
planning and research, to conduct the study (see id. at p. 3). After studying the IDOC’s
policies, visiting a number of facilities, and speaking with IDOC staff, Dr. Austin and the

Other potential punishments include loss or restriction of privileges, demotion to B or C grade status,
change in housing assignment or transfer to another facility, revocation of good time credit, and restitution.
20 ILL. ADMIN. CODE § 504.80 (2017).
14

See also Doc. 222-220, p. 6 (IDOC official Mike Atchison testifying at his deposition that stacking
segregation terms “was the norm”).
15

16

Vera Institute presented the IDOC with a number of findings and sixteen
recommendations for overhauling its segregation policies, which appears to have largely
fallen on deaf ears (Doc. 115, pp. 2–4; Doc. 115-1; Doc. 222-18, pp. 5, 11–114). Only one of
the recommendations was outright accepted and implemented by the IDOC (see Doc. 1151; Doc. 222-18, pp. 14–15).16 Years later, the issues identified by the Vera Institute remain
largely unchanged (see Doc. 222-3; Doc. 222-4).
Like the Vera Institute, Plaintiffs’ expert, Eldon Vail, criticized the frequency with
which disciplinary segregation is imposed in the IDOC (Doc. 222-4, p. 49; see also Doc.
115; Doc. 222-18). In the IDOC, disciplinary segregation is the most commonly used
designation for prisoners in restrictive housing, and administrative detention is second,17
which is “the reverse of how it works in most states,” according to Mr. Vail (Doc. 222-4,
p. 49). He characterized the IDOC as “an outlier” and “far out of step” with other
jurisdictions in this respect (Id.).
The Vera Institute and Mr. Vail also both criticized the IDOC for using segregation
to punish offenses that did not require it (Doc. 222-4, pp. 57; see also Doc. 115; Doc. 115-1;
Doc. 222-18). Mr. Vail agreed with prisoners who consistently complained that they were
given segregation for minor offenses (Doc. 222-3; see also Doc. 222-4). Specifically, he

Specifically, the IDOC adopted and implemented the recommendation to “[r]equire the Regional Deputy
Director and the Chief of Operations to approve all transfers to and from Pontiac and Tamms.” (Doc. 1151; Doc. 222-18, pp. 14–15). Tamms has since been shut down (Doc. 190, p. 15, n.2). Pontiac remains open,
however.
16

According to June 2018 data, there were 1,612 prisoners in restrictive housing and 1,390—or 86%— were
assigned to disciplinary segregation (Doc. 222-3, p. 12).
17

17

opined that the IDOC frequently uses segregation to punish offenses that do not pose any
serious threat to the safety of any person or institutional security (Doc. 222-4, p. 57).18 He
cited examples of prisoners who were punished with segregation for getting a tattoo, for
covering the light in their cell with paper, for throwing trash or paper onto the gallery,
for kicking a toilet, and because a blade was missing from the prisoner’s fan (Id. at pp.
58–60). Other examples include prisoners who were punished with segregation for
disrupting group sessions by tearing up papers (Doc. 222-5), refusing to cuff up (Doc.
222-6), and misusing toilet paper to cover his cell window (Doc. 222-7).
The Vera Institute and Mr. Vail also criticized the IDOC for imposing segregation
sentences that are far too long (Doc. 222-4, pp. 49, 90; see also Doc. 115; Doc. 115-1; Doc.
222-18). Mr. Vail explained that “most states” cap the maximum time spent in
disciplinary segregation at 30, 60, or 90 days (Doc. 222-4, p. 50). In contrast, the IDOC
permits segregation sentences of six months and one year for numerous offenses, and
two offenses are even punishable with open-ended, indeterminate sentences, which Mr.
Vail opined was “far outside the norm” (Id.). He explained that the maximum penalties
are “excessive and not rationally related to improving prisoner behavior” because
research has shown that “[d]isciplinary sanctions of up to a year, or longer, have no
relationship to effective modification of behavior” and “are not an effective deterrent”
(Id. at pp. 49, 56). In fact, the IDOC has had knowledge for at least a decade that more

See also Doc. 222-34, pp. 104–105 (IDOC official Kimberly Butler stating she had no reason to dispute a
finding that 85% of prisoners in long-term segregation were in for minor, not major, offenses).
18

18

time in segregation does not improve inmate behavior, because the Vera Institute
presented this same finding to the IDOC (Id. at p. 88).
Furthermore, evidence submitted to the Court indicates that prisoners across the
facilities consistently complained that the IDOC’s disciplinary hearings are “bogus,” “a
joke,” and “not fair” (Doc. 222-4, pp. 61–72). Specifically, prisoners are often charged with
and found guilty of offenses based solely on confidential information that they were not
allowed to see and had no opportunity to refute or challenge (Doc. 222-3, p. 57; Doc. 2224, pp. 63–64; see also Doc. 222, pp. 20–21, n.14–16). Hearing officials often refuse to call or
interview the witnesses that the inmates request. Hearing officials routinely refuse to
conduct any investigation or look at available evidence of an incident, such as video
recordings and photographs. The hearings are sometimes conducted in the hallway
outside the prisoner’s cell, in which case the proceedings are obviously not confidential
and communicating through the cell door is difficult (for reasons that are explained
further below in the section regarding conditions of confinement). The hearings are not
recorded. And inmates are often not provided with an explanation of why they were
found guilty or why a specific sentence of extreme isolation was imposed.
Mr. Vail reported that prisoners’ perception of the disciplinary hearing process is
“universally quite poor” and the hearings were a common subject of the prisoners’
complaints (Doc. 222-4, pp. 61–72). Mr. Vail opined that “the depth of the collective angst
about the hearing process by nearly every prisoner I interviewed [was] striking” (Id. at p.
66). As he explained, “institutional security is reliant on the perception by the inmate
population that the profound authority corrections officials have over prisoners is
19

exercised in a legitimate manner, which is judged by prisoners as whether or not the staff
are capable and demonstrate through their actions that they are fair” (Id.). It is dangerous
“when entire systems are perceived to be unfair” (Id.).
Mr. Vail also confirmed that many of the prisoners’ complaints are well-founded.
He opined that the IDOC’s overreliance on confidential information and failure to call
witnesses are indeed problematic (Doc. 222-4, pp. 67–71). It is also concerning that IDOC
policy does not require the Adjustment Committee to review any video footage,
photographs, or other records of the relevant incident because this information is often
clear evidence of whether the offense that is charged actually occurred (Id.). Mr. Vail
opined that as a result of these flaws, prisoners are deprived of necessary opportunities
to contest the facts of the incidents or other bases for placing them in restrictive housing
(Id.). Mr. Vail also criticized the IDOC’s policy for not mandating that disciplinary
hearings be recorded (Id. at pp. 68–70). According to Mr. Vail, recording hearings is a
common practice in most jurisdictions so there is a record that can be examined when
needed to resolve grievances about whether or not the discipline policy was actually
followed (Id. at p. 66).
4. Administrative Detention
Placement in administrative detention (“AD”) is governed by 20 ILL. ADMIN. CODE
§ 504.690, which was amended in 2017. The IDOC also has a related internal policy called
Administrative Directive 05.12.101, which was recently amended effective November 1,
2019 (Doc. 192-5). The regulations describe AD as “nondisciplinary” segregation “based
on an administrative judgment that a prisoner requires separation from the main prison
20

population” because they are thought to pose a risk to the facility or other individuals. 20
ILL. ADMIN. CODE § 504.690 (2017). For example, IDOC official Randy Pfister testified that
an inmate can be sent to AD for “safety and security of the facility, consistent negative
behavior, significant authority within a security threat group [meaning they were a gang
leader], serious violent assaults or murders” (Doc. 191-12, pp. 75–76).
A facility’s warden has the discretion to place an inmate in administrative
detention for up to 90 days, with the approval of the Director or Deputy Director of the
IDOC. 20 ILL. ADMIN. CODE § 504.690 (2017). The regulations do not require a review of
the initial placement decision. See id. The internal directive, however, does (Doc. 192-5).
Specifically, a committee appointed by the warden at each facility must review an
inmate’s initial placement in AD within 30 days, and the committee then has another 30
days to notify the inmate of the review decision (Doc. 192-5). The warden is also required
to conduct a follow-up review every 90 days to determine whether the inmate’s
placement in AD should be extended. 20 ILL. ADMIN. CODE § 504.690 (2017). The
regulations do not require the inmate to be interviewed as part of the continued
placement reviews. Id. But the internal directive provides that inmates can provide a
written statement in advance of the review and an oral statement if they are allowed to
appear in-person at the review (Doc. 192-5). Prison officials only have to give the inmate
the opportunity to appear in-person “at six-month intervals,” meaning at every other 90day review (Id.).
The internal directive provides that there are three phases of AD with Phase I
being the most restrictive and Phase III being the least restrictive (Doc. 192-5). Offenders
21

are placed in Phase I upon initial placement (Id.). They can move to less restrictive phases
based on the recommendation of the review committee and approval by the warden (Id.).
Such recommendations and decisions must be “supported by evidence that an offender’s
actions or conduct deem him or her as a non-threat to the safety and security of the
Department and that no credible intelligence exists to the contrary” (Id. at p. 2).
5. Complaints and Criticisms re: Administrative Detention Placement
Both of Plaintiffs’ experts were critical of the AD placement criteria, describing it
as extremely vague and reliant on “catch-all” phrases like the “safety and security of the
facility,” “institutional order,” and “[o]ther legitimate penological interests.” (Doc. 222-4,
p. 73; Doc. 222-3, p. 50). 20 ILL. ADMIN. CODE § 504.690 (2017).
Additionally, as previously noted, the regulations do not provide inmates with
any opportunity to contest their placement in AD. See 20 ILL. ADMIN. CODE § 504.690
(2017). While the internal directive does require review of the initial placement decision,
(see Doc. 192-5), Mr. Vail was highly critical that it gives prison officials 30 days to conduct
the review and yet another 30 days to notify the prisoner of the result (Doc. 222-4, p. 75).
He called the IDOC’s policy “egregious” and “far beyond the policy and practice in other
jurisdictions” (Id.). For example, the American Correctional Association calls for an
“official review” within 24 hours (Id.). Mr. Vail remarked that as a result of these lengthy
timelines, prisoners may not know for over four weeks why they have been moved to AD,
if they are told at all (Id.).
Inmates consistently complained they are being held in AD for reasons that were
never fully articulated to them because their placement was based on “confidential
22

information” (Doc. 222-4, p. 72). Inmates also complained that they do not know what
they need to do to get out of AD (Doc. 222-4, pp. 72, 77–79; Doc. 222-3, p. 63). They called
the review hearings “meaningless” and a “hollow formality” (Doc. 222-4, p. 78).
Based on the records he reviewed and the frustrations expressed to him by
prisoners, Mr. Vail agreed that the review hearings were “perfunctory” (Doc. 222-4, p.
76). He explained that the hearings did not “meaningfully engage the prisoner to explain
why they are in AD and what they have to do in order to return to general population”
(Id.). In fact, it was “universal” amongst the prisoners Mr. Vail spoke to that they could
not articulate what they needed to do to get out of restrictive housing placement (Id. at p.
72). Not only is there a lack of clear direction to the prisoner, the rules also provide no
guidance to the prison staff (Id. at p. 79). Neither the regulations nor the internal directive
clearly define a way to either move through the phases of AD or out of AD status entirely,
despite the Vera Institute’s critique about this very issue years prior (Id. at pp. 73, 76–80;
Doc. 115, Doc. 115-1, Doc. 192-5, Doc. 222-18). See also 20 ILL. ADMIN. CODE § 504.690
(2017). Consequently, the decision as to whether an inmate is “ready” to be released from
AD is “apparently . . . [left] up to the subjective judgment of staff . . . with no standards
to guide this decision.” (Doc. 222-4, pp. 79–80). Mr. Vail opined that the system was
“arbitrary” (Id.). He stressed that there must be a structured way to get out of AD and it
must be transparent and reasonable in terms of the amount of time it takes (Id.). He said
it was “irresponsible and detrimental to good prison safety and security to place
prisoners in segregation and leave them in the dark as to what they need to do to earn
their way back to general population.” (Id.).
23

Mr. Vail also criticized the 90-day follow-up reviews, opining that the infrequency
of these reviews is problematic (Doc. 222-4, pp. 9, 75–76). He suggested that more
frequent reviews were needed to not only determine whether continued placement was
necessary but also to evaluate how the prisoner is handling the stress of living in a
segregation cell (Id. at 76). For example, the American Correctional Association
recommends a review every seven days for the first sixty days and at least every 30 days
thereafter (Doc. 222-4, p. 75). Furthermore, Mr. Vail opined that the prisoner should
always be allowed to attend every review hearing and should be able to explain why they
think they should be released from AD (Id. at p. 76).
Mr. Vail indicated that inmates “repeatedly mocked” the characterization of AD
as “nondisciplinary” (Doc. 222-4, p. 73). He agreed, stating that AD is “clearly an
experience of being punished” (Id.). It is also “perceived as a dead end” and prisoners are
left with little to no hope about their futures (Id. at pp. 72, 79).
E. CONDITIONS IN RESTRICTIVE HOUSING
It is undisputed that prisoners in restrictive housing are all held in the same areas
and cells, regardless of the specific form of restrictive housing they are in (i.e.,
investigative status, temporary confinement, disciplinary segregation, or administrative
detention) (Doc. 222-1, pp. 21–22; Doc. 222-2, p. 88). See also 20 ILL. ADMIN. CODE § 504.610
(2017).
Plaintiffs’ experts indicated that all of the IDOC facilities vary in age, appearance,
and level of function/disrepair (see Doc. 222-3, Doc. 222-4). For example, the six facilities
visited by Dr. Haney and Mr. Vail range in age from nearly 150 years old to around 20
24

years old. Some cells have badly chipped paint on nearly every surface, while others have
intact paint jobs. Some cells have windows, others don’t. Some cells have nothing but a
bed, toilet, and sink, while others might also have a desk and a stool/chair. Some showers
are “filthy” with extensive rust and visible grime, while others are properly maintained
and cleaned. Some showers lack any privacy measures. Some facilities have rodent and
insect issues. Cell temperatures were a concern at every facility, with most being far too
hot in the summer and freezing cold in the winter. There were also complaints of broken
sinks, contaminated-looking water, broken toilets, broken lights, and long wait times to
get things fixed. Plaintiffs’ experts observed cells with no ladders to the top bunk,
“shredded” and stained mattresses, and bunk beds with rusted legs (see Doc. 222-3; Doc.
222-4). Prisoners complained of low-quality food and reduced portions at some facilities
(see citations at Doc. 222, p. 24 n.31). But despite these variations, Dr. Haney and Mr. Vail
agreed that all of the restrictive housing units operate on the same core policies and
procedures and subject prisoners to the same degraded conditions of confinement,
extreme social isolation, and other severe forms of restrictions and deprivations (Doc.
222-3, pp. 11–13, 45, 95–96; Doc. 222-4, p. 10).
To begin with, the restrictive housing cells at the six facilities Dr. Haney and Mr.
Vail toured, while varied in exact dimensions, were all “extremely small,” according to
Dr. Haney (Doc. 222-3, p. 46). In fact, Illinois law only requires cells in new and remodeled
facilities to be at least 50 square feet, 735 ILL. COMP. STAT. 5/3-7-3, however, existing cells
do not have to comply with the statute and many of them do not (see Doc. 222-3, p. 46;
Doc. 222-4, pp. 24–26). It can be inferred from Mr. Vail’s report that none of the cells he
25

observed meet the standard set by the American Correctional Association, which requires
all restrictive housing cells to provide a minimum of 80 square feet, including 35 square
feet of unencumbered space for the first occupant and an additional 25 square feet of
unencumbered space if there is a second occupant (Doc. 222-4, pp. 26–27). The small size
of the cells means that prisoners have “little or no ability to move about their cell,” which
is especially problematic given that they are confined nearly around-the-clock in their
cells (Doc. 222-3, p. 46). It also means that inmates cannot physically separate their normal
daily routines—in other words, they eat, sleep, and defecate in the same space (Id.).
Dr. Haney reported that “many” of the restrictive housing cells “are inadequate
for even a single prisoner to be confined for such extended periods of time” (Doc. 222-3,
p. 45). Nevertheless, many of them are double-celled (Id. at p. 46). Double-celling is the
practice of assigning two prisoners to one cell, which state regulations permit in
restrictive housing (Id.). 20 ILL. ADMIN. CODE § 504.620(a) (2017). Dr. Haney opined that:
double-celling does not mitigate, and indeed may significantly exacerbate,
the psychological impact of isolated confinement. The kind of forced and
strained “interactions” that take place between prisoners who are confined
nearly around-the-clock in a small cell does not constitute meaningful social
contact. In fact, under these harsh and deprived conditions, the forced
presence of another person may become an additional stressor and source
of tension (and even precipitate physical conflict); it can worsen the
negative psychological effects of the other deprivations to which prisoners
in restrictive housing are subjected. In fact, in my experience, double-celling
in restrictive housing units increases the risk of assaults and sometimes
lethal violence.
(Doc. 222-3, pp. 46–47). Mr. Vail likewise called double-celling inmates in restrictive
housing a “bad” and “risky” practice that should be ended (Doc. 222-4, pp. 27–28).

26

Additionally, Dr. Haney reported that “[a]ll of the restrictive housing cells at every
facility [he] toured” impeded a prisoner’s ability to communicate with people outside of
their cells, such as other prisoners and staff (Doc. 222-3, p. 46). Some cells have solid steel
doors with only a small window (see id. at pp. 44–45, 47, 53, 59, 60, 62, 65, 85, 91, 180, 196,
213–14, 219–20, 224–27, 235–39, 243, 249, 251, 253–54, 261–64, 277–78, 291–92, 296–97, 299,
305–311). Others are barred cell doors that have been covered with plexiglass or metal
screens (see id.). Consequently, it is extremely difficult, if not impossible, for inmates in
restrictive housing to meaningfully communicate with anyone outside their cells (Doc.
222-3, pp. 46, 47; see also Doc. 222-27, p. 6).
Prisoners’ social contacts are also limited in other ways. In temporary
confinement, investigative status, and disciplinary segregation, prisoners cannot make
phone calls (e.g., Doc. 222-23, pp. 54–56, 137–141).19 The number of visits they can have
per month is reduced (e.g., Doc. 222-3, p. 47; Doc. 222-23, pp. 54–56). 20 ILL. ADMIN. CODE
§§ 504.620(i), 504.130, 525.20. Generally, the policy is that they get two visits a month,
lasting only one hour (Doc. 222-3, p. 50). Those visits are non-contact, through a window,
and often via a phone (Doc. 222-3, p. 49). 20 ILL. ADMIN. CODE §§ 504.130, 525.20.
Additionally, disciplinary segregation prisoners are kept in leg and hand restraints
throughout the visits, despite being in secure areas (Doc. 222-3, pp. 49–50). Dr. Haney

Prisoners in temporary confinement and disciplinary segregation are automatically demoted to “C”
grade status. 20 ILL. ADMIN. CODE §§ 504.620(i), 504.610. (2017). Offenders in investigative confinement are
provided with the same conditions as those in temporary confinement and disciplinary segregation. Id. at
§ 504.630. And in “C” grade, inmates cannot make phone calls Id. at §§ 504.620(i), 504.130, 525.150.
19

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pointed out that by only allowing non-contact visits, the IDOC takes away the inmates’
only real opportunity to experience caring human touch (Id. at p. 47).
In administrative detention, phone and visitation privileges vary by phase. In
phase I, inmates get two, one-hour non-contact visits and one 15-minute phone call per
month (Doc. 193-4). In phase II, inmates get three 90-minute non-contact visits and two
15-minute phone calls per month (Id.). In phase III, inmates get four two-hour “meet and
greet” visits per month and two 15-minute phone calls per week (Id.).
Prisoners in restrictive housing do not attend chow; they eat their meals alone in
their cells (Doc. 222, p. 38, n.62). They are not allowed to supplement their diet with items
from the commissary (Doc. 222-3, p. 54; Doc. 193-4). See 20 ILL. ADMIN. CODE §
504.130(a)(3) (2017). They are not allowed to spend time in congregate spaces, such as day
rooms, and they are not allowed to hold jobs in the prison (Doc. 222, p. 38; see also Doc.
222-3, Doc. 222-4).20
Cells in restrictive housing are barren for the most part (see Doc. 222-3, pp. 174–
315). They have a bed, a mattress, bedding, a toilet, and a sink (see id.). As noted above,
sometimes a desk and a stool (see id.). Personal property is limited—prisoners have no
radios or televisions (e.g., id. at pp. 48–49, 54, 58, 92; Doc. 222-29, p. 26).
Access to religious or educational programming for inmates in restrictive housing
is non-existent, or significantly diminished (Doc. 222-3, pp. 47–48, n.8; Doc. 222-29, pp.
16–17; see Doc. 190, pp. 19, 22; Doc. 193-4). Dr. Haney explained that such programming
There was one exception to this out of the six facilities that Dr. Haney and Mr. Vail visited: segregation
prisoners at Logan are at times allowed in the dayroom for indoor “recreation” time, however, they are
chained to a table (Doc. 222-4, p. 45).
20

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is “essential to prisoner well-being” (Doc. 222-3, p. 47). “Programming not only allows
prisoners to engage in productive forms of self-improvement or rehabilitation but also
provides them with mental and physical activities in which to engage that, in turn, can
help prevent debilitation and atrophy.” (Id. at pp. 47–48). Dr. Haney reported that
“virtually all” of the prisoners in restrictive housing that he spoke with “complained
about the severe levels of idleness to which they were subjected.” (Id. at p. 51). As one
prisoner put it, “all I do all day is look at the walls and think about my fuck ups and feel
hopeless and it makes me want to die. . . . this is torture.” (Id. at p. 87).
Inmates in restrictive housing are allowed out of their cells to shower. IDOC policy
requires showers to be offered at least three times per week. 20 ILL. ADMIN. CODE §
504.620(g)(1). Showers last about 10-15 minutes (e.g., Doc. 222-28, p. 8; Doc. 193-4).
Inmates in restrictive housing are also allowed out of their cells for recreation time. Mr.
Vail reported this time is essential to prisoners’ wellbeing as it is one of the primary ways
to relieve the stress caused by the social isolation and physical limitations that come with
living in restrictive housing (Doc. 222-4, p.33). Generally speaking, the regulations
require that prisoners in restrictive housing receive at least eight hours of recreation per
week, to be distributed over the course of at least two days. 20 ILL. ADM. CODE §
504.670(a).21 Each facility is allowed to determine how the hours are distributed. Id.
Prisoners at the various facilities most commonly reported they are allowed to go
to yard two or three days per week, for between two and three hours each time (e.g., Doc.

Per the Rasho settlement agreement, mentally ill prisoners in segregation for longer than sixty days are
supposed to receive slightly more yard time: ten hours instead of eight (Doc. 222-4, p. 49).
21

29

222-4, pp. 34–46).22 None of the prisoners Mr. Vail talked to reported receiving the full
eight hours every week (Doc. 222-4, p. 34; see also Doc. 222, p. 39, n.66 (stating that all
prisoners who were deposed indicated that they routinely receive less than eight hours
per week)). Mr. Vail noted that the IDOC’s policy for recreation time fails to meet national
and international standards (Doc. 222-4, p. 33). For example, the American Correctional
Association requires a minimum of one hour, five days per week (Id.). And the United
Nations Standard Minimum Rules for the Treatment of Prisoners—known as the Nelson
Mandela Rules—requires at least one hour every day (Id at p. 34). Mr. Vail opined that
offering recreation only two or three days a week “defeats the objective of getting
segregated prisoners out of their cells as much as possible” in order to reduce the stress
of living in restrictive housing (Id. at p. 46). Dr. Haney noted that allowing prisoners out
to yard only two or three days a week means they can be confined in their cells
continuously for several days at a time (Doc. 222-3, p. 49). In fact, prisoners reported not
leaving their segregation cells for astounding lengths of time, including one prisoner who
told Dr. Haney he had been in his cell around-the-clock for six months (Id. at p. 87).
The yard conditions at the different facilities are not identical, however, both Dr.
Haney and Mr. Vail portray the conditions in all of the yards they toured as bleak and
barren (see Doc. 222-3, Doc. 222-4). Dr. Haney said they are “‘yard’ in name only” (Doc.
222-3, p. 45). Some of the recreation areas are traditional congregate yards (Doc. 222-3 pp.
189, 222–23, 238, 282–89, 304; Doc. 222-4, pp. 33–46). They are surrounded by high fences,

Dixon is an exception; recreation is offered two hours a day, five days a week, exceeding the ACA
standard and IDOC’s own policy (Doc. 222-4, p. 37).
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and topped with razor wire or barbed wire. Most of them have concrete floors. Some have
no equipment whatsoever, and the ones that do have nothing more than a basketball
hoop. Some of them have a picnic table or chair; others have no place to sit at all. Other
recreation areas are one-man metal cages with concrete floors, that one of the named
Plaintiffs described as “dog cages” (see Doc. 222-3 pp. 222, 287, 289; Doc. 222-4, pp. 33–46;
Doc. 222-25, p. 19). The metal cages are completely barren with absolutely no exercise
equipment and nowhere to sit. Mr. Vail testified that they are so small they “don’t leave
much room for recreation or exercise” (Doc. 191-14, pp. 36–37).
Hardly any of the yards have toilets, even though prisoners are usually on the yard
for well over an hour at a time (Doc. 222-4, p. 35). Mr. Vail was told that inmates “go”
anyway, and some then throw their urine and feces (Id. at pp. 35, 38).
The congregate yards are supervised by a guard in a tower (Doc. 222-4, pp. 34–35,
37, 38, 40–41, 44, 45).23 Consequently, there are no guards in close proximity to supervise
the inmates, to diffuse tense situations, or to break up fights (see id. at pp. 34–46; Doc. 19114, p. 35). Many reported being attacked or witnessing fights on the yard (Doc. 222-4, pp.
37, 38). Prisoners repeatedly told Mr. Vail that they felt yard was unsafe, and they
declined to go, or rarely went, when it was offered (Id. at pp. 34–46; Doc. 191-14, pp. 35–
36).
In addition to recreation time, mentally ill inmates are also supposed to receive ten
hours of “structured” time out of their cell, for example, in group therapy (Doc. 222-3, p.

Menard was the only facility that had a guard shack on the ground (Doc. 222-4, pp. 40–41). But prisoners
reported there wasn’t always a guard in there (Id.).
23

31

49). However, Dr. Haney received consistent reports that they were not receiving the
requisite amount of structured out-of-cell time (Id. at pp. 49, 52). When it did occur, it was
typically unrelated to any discernable therapeutic purpose or goal (Id. at p. 49). For
example, during group therapy sessions, inmates watched “generic movies (that lacked
psychological content),” including shows on the Hallmark channel, and talked about
“world events,” sports, or “whatever you want” (Id. at pp. 60, 65, 74, 83, 90). And the
inmates normally spent group sessions chained to benches or sitting in cages (Id. at pp.
55, 59, 60, 61, 62, 75, 79–80).
Finally, prisoners consistently reported physical and verbal abuse by officers (Doc.
222-4, pp. 82–83).24 This information was completely unsolicited and instead “simply
emerged” as Mr. Vail and Dr. Haney talked to prisoners (Id.). Mr. Vail called the volume
of the reports “astounding” and “of great concern” (Id.). Two-thirds of all the prisoners
he spoke with reported being the victim of physical abuse or witnessing such an incident,
including 100% of the inmates he spoke with at Menard, 77% of the inmates at Pontiac,
73% of the inmates at Dixon, 40% of the inmates at Stateville, 33% at Logan, and 20% at
Lawrence (Id.). The prisoners primarily reported physical beatings, almost always out of
range of security cameras. They also complained of insufficient decontamination after
chemical sprays were used. African American prisoners also reported that guards
routinely use racial epithets and slurs (Id.). Mr. Vail commented that in the last six years,

Dr. Haney also indicated he received numerous reports about abuse from correctional officers. One
inmate told him that guards “use shields, hit us, then walk out and act like it never happened.” (Doc. 2223, pp. 73). He also told Dr. Haney that one time when he attempted to hang himself, officers maced him
when they came into his cell to cut him down (Id.). Another prisoner told Dr. Haney that guards sprayed
mace in a bag and put it over his face (Id. at p. 67).
24

32

he has interviewed hundreds of prisoners in dozens of prisons and jails in twelve
different states, and there’s only been one other time that he’s encountered such a volume
of reports of physical and verbal abuse in one prison system (Id.).
F. EFFECTS OF RESTRICTIVE HOUSING IN THE IDOC
It is important to reiterate that Dr. Haney’s and Mr. Vail’s reports, at this stage, are
uncontested and unrebutted. Defendant did not offer any experts of his own. Dr. Haney
and Mr. Vail’s reports paint a disturbing, and quite frankly distressing, picture. Mr. Vail
characterized the conditions of the restrictive housing units he observed as “generally
deplorable,” “stark and horrific,” “far below the standards of other state prison systems,”
and “unnecessary to achieve the relevant penological objectives.” (Doc. 222-4, p. 10). Dr.
Haney likewise said the conditions in the restrictive housing units he observed were
“extremely harsh,” “draconian,” and “precisely the kind that create a significant risk of
serious harm for all the prisoners who are subjected to them” (Doc. 222-3, pp. 12, 96, 97,
114, 116). In fact, he said they were “outright dangerous to prisoners’ mental health and
well-being” and represented “nothing short of a system-wide crisis” (Id. at p. 12). He
further opined that “shockingly high number of [mentally ill] prisoners” housed in the
IDOC’s restrictive housing units was “frankly unconscionable” (Id. at p. 96.)
Unsurprisingly, “virtually all” of the prisoners that Dr. Haney spoke with reported
or acknowledged various forms of suffering, decompensation, and deterioration that
they are experiencing a result of the conditions in restrictive housing and the way they
are treated (Doc. 222-3, p. 96). Dr. Haney indicated that the symptoms the prisoners
acknowledged are indicative of the type of psychological trauma associated with severe
33

forms of isolated confinement (Id.). Prisoners frequently reported depression, nearconstant anxiety, difficulty concentrating, ruminations, irritability, bouts of anger, and
feelings of an impending breakdown (Id. at pp. 60–103). Some prisoners described visual
hallucinations and auditory hallucinations (Id.). More than one prisoner even reported
playing with and/or eating their own feces (Id.). And in many instances, prisoners
showed Dr. Haney cuts, bite-marks, and scars from self-mutilation and described
attempts to commit suicide (Id.).
Dr. Haney’s report was full of instances where inmates who self-mutilated or
attempted suicide but were nevertheless kept in segregation (see Doc. 222-3, pp. 60–103).
As one inmate at Menard told Dr. Haney, “I keep trying to kill myself and they keep
putting me back in my same seg cell” (Id. at p. 82). Dr. Haney described another prisoner
at Logan whose records showed her placement in segregation was continued, and even
extended, despite “an extraordinary number of documented suicide attempts” and
repeated pleas to be sent to the state mental hospital because she was certain that Logan
“could not fix her brain” (Id. at p. 99).
Dr. Haney himself observed a multitude of prisoners that were “in obvious
distress, sitting on the bunks in their disheveled cells, staring vacantly” (Id. at p. 59), and
others that he described as “nearly incoherent” (Id. at p. 61), “extremely unstable” (Id. at
p. 64), “very disturbed” and “especially fragile” (Id. at p. 70). And he remarked that at
two facilities, he was “struck” by how many of the restrictive housing prisoners he
interviewed appeared to be “profoundly mentally ill” (Id. at pp. 65, 72). Many of the
prisoners Dr. Haney encountered expressed deep concerns about their own well-being
34

and whether their impaired and deteriorated mental health would ever improve (Id. at
pp. 81, 88, 96).
Dr. Haney opined that all of the IDOC restrictive housing units he toured “appear
capable of having truly harmful—even devastating and fatal—impacts on the prisoners
housed in them” (Doc. 222-3, p. 96). He stated unequivocally that the “harsh, severe
conditions of confinement” in IDOC restrictive housing units “are precisely the kind that
create a significant risk of serious harm for all the prisoners who are subjected to them”
(Id. at p. 114). And, in fact, most of the inmates Dr. Haney encountered in the restrictive
housing units could point to harm that they had already experienced (Id. at pp. 93, 114).
DISCUSSION
A plaintiff seeking to certify a class must satisfy the four requirements of Federal
Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of
representation. See, e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th
Cir. 2012). The plaintiff must also demonstrate that the proposed class qualifies under at
least one of the three subsections of Rule 23(b). Id. Where, as here, certification is sought
under Rule 23(b)(2), the plaintiff must show that “the party opposing the class has acted
or refused to act on grounds that apply generally to the class, so that final injunctive relief
or corresponding declaratory relief is appropriate respecting the class as a whole.” FED.
R. CIV. P. 23(b)(2). The plaintiff bears the burden of proving, by a preponderance of the
evidence, that their proposed class satisfies each of the requirements of Rule 23. Howard
v. Cook Cty. Sheriff's Off., 989 F.3d 587, 597 (7th Cir. 2021)

35

“Rule 23 is more than ‘a mere pleading standard[.]’” Howard, 989 F.3d at 597
(citation omitted). “[A] court may not simply assume the truth of the matters as asserted
by the plaintiff[,]” on issues affecting class certification. Messner, 669 F.3d at 811. Rather,
the plaintiff must “actually prove” that the relevant requirements have been met.
Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 275 (2014) (emphasis in original).
“A class may only be certified if the trial court is satisfied, after a rigorous analysis,
that the prerequisites for class certification have been met.” Lacy v. Cook Cty., Illinois, 897
F.3d 847, 863 (7th Cir. 2018) (quoting Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 373 (7th
Cir.

2015)).

“Failure

to

meet

any

of

the

Rule’s

requirements

precludes class certification.” Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008).
A. DOES RASHO V. WALKER PRECLUDE CLASS CERTIFICATION?
Before addressing the requirements of Rule 23, the Court will first analyze
Defendant’s argument that the class should not be certified because the claims in this case
are “subsumed” by another class action in the Central District of Illinois: Rasho v. Walker,
CDIL case no. 07-cv-1298-MMM (Doc. 190, pp. 31–39).25
Rasho is a class action that was initiated in 2007, challenging the adequacy of
mental health services provided to mentally ill prisoners in the IDOC. Rasho Doc. 260. In
August 2015, a class consisting of all current and future inmates within the IDOC’s
custody who were or should have been identified as requiring mental health treatment

References to the docket in the instant case are cited as (Doc. ___), while references to the district court’s
docket in Rasho are cited as “Rasho Doc. ___.”
25

36

was certified pursuant to Rule 23(b)(2). Rasho Doc. 252.26 Later that year, the parties
reached a comprehensive settlement agreement regarding all aspects of mental health
care in the IDOC, including, for example, screenings and evaluations, treatment plans,
medication, staffing numbers, staff training, treatment spaces, and housing assignments.
Rasho Docs. 710, 711-1. There were also provisions regarding segregation and discipline
for mentally ill inmates. Rasho Doc. 711-1, pp. 16–20, 24–25. The settlement agreement
was approved by the court in May 2016. Rasho Docs. 710, 711-1; Minute Entry dated
5/13/2016. A year and a half later, in October 2017, Plaintiffs filed a motion to enforce
the settlement agreement, arguing that Defendants were not complying with the
agreement in various areas, including segregation. Rasho Doc. 1559. The court ultimately
agreed and entered a permanent injunction in April 2019. Rasho Docs. 2460, 2516, 2579,
2633.27 Defendants appealed the Court’s order on March 1, 2019, Rasho Doc. 2583, and the
appeal remains pending.
Defendant notes in his brief that the Rasho court found around 80% of IDOC
inmates in segregation are mentally ill (Doc. 190, p. 31) (citing Rasho v. Walker, no. 07-cv1298-MMM (USDC-CDIL), 376 F. Supp. 3d 888, 908 (C.D. Ill. 2019)).28 Consequently, a

The exact class definition is: “Persons now or in the future in the custody of the Illinois Department of
Corrections (“IDOC”) [who] are identified or should have been identified by the IDOC's mental health
professionals as in need of mental health treatment as defined in the current edition of the Diagnostic and
Statistical Manual of Mental Disorders of the American Psychiatric Association. A diagnosis of alcoholism
or drug addiction, developmental disorder, or any form of sexual disorder shall not, by itself, render an
individual mentally ill for the purpose of this class definition.” Rasho Doc. 252; also available at Rasho v.
Walker, 376 F. Supp. 3d 888, 891 (C.D. Ill. 2019).
26

27

The permanent injunction order is also available at: Rasho v. Walker, 376 F. Supp. 3d 888 (C.D. Ill. 2019).

Plaintiffs indicated they are “skeptical” of this figure, arguing that it is unclear how it was calculated or
what data was used (Doc. 198, p. 15). However, Plaintiffs’ counsel authored an affidavit, citing to data
28

37

chunk of the proposed class members in the instant case are also members of the Rasho
class. Defendant suggests the instant case is thus duplicative of Rasho and cites to cases
involving the rule against duplicative litigation (Doc. 190, pp. 31–39; Doc. 220). That rule
provides that a federal suit may be stayed or dismissed for reasons of wise judicial
administration whenever the suit is duplicative of a parallel action already pending in
another federal court. McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 888 (7th Cir. 2012);
Cent. States, Se. & Sw. Areas Pension Fund v. Paramount Liquor Co., 203 F.3d 442, 444 (7th
Cir. 2000).
Plaintiffs contend that Rasho is not still pending and therefore the rule against
duplicative litigation does not apply (Doc. 224, pp. 11–12; see also Doc. 220). They further
contend that the proper doctrine, if anything, would be res judicata (or claim preclusion)
but they assert that doctrine is also inapplicable here (Doc. 224, pp. 18–19; see also Doc.
220).
When this issue was discussed at the hearing on the motion for class certification,
defense counsel clarified that she does not believe either the rule against duplicative
litigation or res judicata actually apply (see Doc. 220, pp. 40, 47–51). Specifically, counsel
stated that Defendant is “not asking the Court to abstain from making determinations in

showing that, in 2018, 79% of the prisoners designated as seriously mentally ill at Dixon, Pontiac, and
Menard were assigned to one or more days of segregation (Doc. 177, p. 7). Additionally, Plaintiffs’ expert,
Dr. Craig Haney, relied on Defendant’s figure of 80% (Doc. 222-3, pp. 14, 39). Dr. Haney also stated more
generally that “an extraordinarily high percentage of persons housed in IDOC restrictive housing units are
mentally ill” and the restrictive housing units he toured were “filled with mentally ill prisoners” (Doc. 2223, pp. 114, 115; see also id. at pp. 39, 72, 75, 106). So, while Defendant’s 80% figure may not be precise, the
number of inmates in restrictive housing who are mentally ill is undoubtedly high.

38

this case because of Rasho” and not arguing “that this case is precluded by Rasho.” (Id. at
pp. 47, 48). Rather, defense counsel was making more of general argument, not based on
any specific legal doctrine, that there is significant overlap between the instant case and
Rasho and so it does not make sense to proceed with the class here (Id. at pp. 39–44, 47–
50). Counsel offered a number of reasons to support Defendant’s position. First, defense
counsel contended that that if the instant class proceeds, there is a risk of inconsistent and
conflicting findings and directives between this case and Rasho, and seemed to suggest
there was no way to work around this potential risk (see id. at pp. 39–40, 47–48). Next,
counsel argued that “any of the relief that [mentally ill inmates are] seeking pertaining to
segregation can still be litigated and adjudicated in the Rasho action” (Id. at p. 41). Put
differently, counsel’s position seemed to be that mentally ill inmates can and should use
Rasho to litigate any and all of their issues and they cannot bring any new claims or be
part of any new class (see id. at pp. 41, 43) (arguing that while the Rasho case is “mostly
about mental health care . . . it’s spilled over into all aspects of the Department of
Corrections”). Defense counsel also argued that Rasho already provides for some of the
relief that Plaintiffs seek in the instant matter and so it does not make sense to move
forward with this second class (Id. at pp. 50, 57). Finally, defense counsel suggested that
eliminating the Rasho class members from the class here was not a viable alternative
because “carving out 80 percent of a class doesn't make sense” and we would not be left
with anything workable (Id. at pp. 47–48).
The Court is unconvinced by any of Defendant’s arguments. First, neither the rule
against duplicative litigation nor res judicata apply. Both doctrines require the same or
39

substantially similar claims and parties in two different lawsuits.29 But the proposed class
here and the Rasho class are clearly different. The Rasho class is all current and future
inmates who are or will be on (or should be on) the IDOC’s mental health caseload. Rasho
Doc. 252. Whereas, the proposed class in this case is “[a]ll prisoners who are now or will
be incarcerated” in adult correctional facilities in the IDOC. (Doc. 173) (emphasis added).
In other words, the Rasho class consists of mentally ill inmates, while the class here is,
quite simply, all prisoners now and in the future. In short, the class in this case is
significantly broader than that of Rasho. While mentally ill inmates certainly comprise a
portion of it, there is, without question, a huge number of current and future inmates
who are not mentally ill that are also part of the class proposed here.
Additionally, the claims in the instant case are not the same as the claims in Rasho.
Broadly speaking, Rasho is about inadequate mental health treatment. The plaintiffs
alleged, for example, that the IDOC chronically fails to diagnose mental illness in inmates,
provides grossly substandard care to those who are diagnosed, fails to train its employees
as to how to properly respond to and interact with mentally ill inmates, and disciplines
inmates for conduct caused by their mental illness without taking that illness into account
when meting out punishment. Rasho Doc. 260. In contrast, the instant case is about the

McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 889 (7th Cir. 2012) (“A suit is duplicative if the claims,
parties, and available relief do not significantly differ between the two actions.”) (citation and internal
quotation marks omitted); see also The Haytian Republic, 154 U.S. 118, 124 (1894) (“When the pendency of
such a suit is set up to defeat another, the case must be the same. There must be the same parties, or, at
least, such as represent the same interests; there must be the same rights asserted and the same relief prayed
for; the relief must be founded upon the same facts, and the title, or essential basis, of the relief sought must
be the same.”); United States ex rel. Conner v. Mahajan, 877 F.3d 264, 270, 271, 272 (7th Cir. 2017) (federal
claim preclusion law bars claims which were, or could have been, decided in a prior suit if there is an
identity of the parties or their privies, an identity of the causes of action, and a final judgment on the merits)
(citations omitted).
29

40

use of restrictive housing. Plaintiffs allege, for example, that inmates are often sent to
restrictive housing for minor infractions and/or for extended periods of time, conditions
of confinement in restrictive housing are inhumane, and the hearing and review
procedures for prisoners sent to restrictive housing are devoid of due process protections
(Doc. 1).
To be sure, there is some degree of overlap between the two cases, which Plaintiffs
admit (Doc. 224, p.15, n.4; Doc. 220, pp. 17, 19). Mentally ill inmates who are in
segregation are members of both classes. And that number, although imprecise, is no
doubt significant. See supra n.28. Rasho also touches on disciplinary proceedings and
conditions in segregation for mentally ill inmates.30 However, Rasho did not ask, litigate,
or resolve whether the IDOC’s policies, and/or the purported systemic failure to adhere
to those policies, creates inhumane conditions of confinement in restrictive housing for
inmates. Nor did Rasho ask, litigate, or resolve whether the process that inmates are
provided before and after placement in restrictive housing is constitutionally insufficient.
Furthermore, Rasho did not adjudicate anything regarding the rights of inmates in
segregation who are not mentally ill, and none of the relief agreed to/ordered in Rasho
applies to them.
For these reasons, neither the rule against duplicative litigation nor claim
preclusion bar certification in this case. To the extent Defendant is arguing that common
sense or reasons of equity and economy counsel against certification, that argument is
For example, the Rasho settlement agreement requires security staff to consult with a mentally ill inmate’s
treatment team before double-celling the inmate in segregation and it dictates the amount of out-of-cell
time mentally ill inmates in segregation must receive. Rasho Doc. 711-1, pp. 16–21, 24.
30

41

likewise rejected. To begin with, this argument comes much too late in the proceedings.
Arguments regarding duplicative or overlapping litigation are routinely made during the
pleadings phase for the obvious reason that one of the parties is trying to put the case on
ice as soon as possible, before any significant time or money has been expended. Here,
Defendant could have made his argument from the outset. By the time this case was filed
in June 2016, the class had been certified in Rasho and the settlement had been reached
and approved by the Court. Any overlap this case has with Rasho should have been
immediately apparent. But Defendant did not raise his argument at the beginning of the
case (see Docs. 22, 36, 76). Instead, he waited until after Plaintiffs filed their motion for
class certification. By that point, the Court and the parties had already dedicated a truly
massive amount of work to this case. As Defendant pointed out in its brief, the parties
have spent years on discovery related to class certification (Doc. 190, p. 60). Hundreds of
thousands of pages of documents have been produced, close to 20 depositions have been
taken, (Id.), and there have been almost three dozen hearings in this matter (see Docs. 1–
229). It is simply too late to argue that class certification should not be considered,
particularly because the argument is based on circumstances that have existed the entire
time this case has been pending.
The timing and imprecision of Defendant’s argument suggests it is more likely a
last-ditch effort to avoid class certification than it is a serious contention about conserving
resources and promoting efficiency. Additionally, contrary to Defendant’s assertion, the
claims in Rasho cannot be amended to encompass the issues raised in this case. A
settlement agreement has been reached, a permanent injunction order has been entered,
42

and the case is on appeal. This case is not “largely duplicative” of Rasho, as Defendant
asserts. Any overlap is minimal, and Defendant has not given the Court any reason to
believe it should preclude class certification. Rather, the overlap would only come to bear
on any relief ultimately agreed to or provided in this case, which can be addressed later
as necessary by the parties and the Court.
B. RULE 23 REQUIREMENTS
Having decided that Rasho does not preclude class certification, the Court now
considers whether Plaintiffs have met all of the requirement of Rule 23.
1. Numerosity
The first requirement of Rule 23(a) is that the proposed class “be so numerous that
joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). A “class can be certified
without determination of its size, so long as it's reasonable to believe it large enough to
make joinder impracticable and thus justify a class action suit.” Arnold Chapman & Paldo
Sign & Display Co. v. Wagener Equities Inc., 747 F.3d 489, 492 (7th Cir. 2014). “While there
is no magic number that applies to every case, a forty–member class is often regarded as
sufficient to meet the numerosity requirement.” Mulvania v. Sheriff of Rock Island Cty., 850
F.3d 849, 859 (7th Cir. 2017).
The putative class is, essentially, all current and future inmates in the IDOC. Data
shows that in the last several years there have been between 30,000 and 40,000 prisoners
in the IDOC. Somewhere around 10,000 prisoners are held in extreme isolation for some
period of time each year, with approximately 1,600 confined in extreme isolation on any
given day. But it is possible for all prisoners in the IDOC to end up in segregation—any
43

one of them could be charged with a disciplinary infraction that leads to placement in
segregation and any one of them could be placed in administrative detention with no
charge at all. Of course, there are also the future inmates who can and will be subjected
to restrictive housing. Given the significant size of both the current and future prisoner
populations, there is no question that numerosity is satisfied.
None of Defendant’s arguments contesting numerosity are persuasive. First,
Defendant argues that the Rasho class members must be excluded (Doc. 190, pp. 39–42).
But as explained above, an inmate’s status as a Rasho class member does not prevent the
inmate from also being a class member in this action. Even if Defendant was correct and
the Rasho class members were excluded, that would still leave all of the current and future
non-mentally ill inmates for the instant class. This is undoubtedly a significant number—
thousands, if not tens of thousands, of inmates.
Defendant next argues that Plaintiffs simply assume that every inmate who is
currently serving time in restrictive housing or will in the future is a class member, but
Defendant contends not every inmate has or will have a “legitimate” claim (Doc. 190, pp.
39–42; see also Doc. 220). (Doc. 190, p.p. 39–42). For example, according to Defendant,
prisoners who served less than 30 days have no legitimate claim because such placements
“have already been established to be constitutional” (Id. at p. 42). And maybe there are
inmates who received a disciplinary hearing that was by the book or received sufficient
out of cell time to prevent any harm (Id. at pp. 39–42). Defendant argues there is just no
way to know which inmates have a claim and are thus class members without individual
factual determinations (Id.).
44

But Defendant’s argument incorrectly frames the nature of Plaintiffs’ claims.
Plaintiffs’ claims are not based on the process provided to individual inmates on a specific
occasion. Nor do Plaintiffs’ claims hinge on conditions of confinement that individual
inmates experienced on a specific occasion. That is, Plaintiffs are not contending that a
collection of individual constitutional violations that already occurred (each of which
hinge on particular facts and circumstances) amount to a systemic constitutional
violation. Rather, Plaintiffs are alleging the IDOC’s policies governing restrictive
housing, which apply statewide at every facility to every inmate, and its systemic
practices establish baseline conditions of confinement in segregation that are so
inadequate they expose any and every inmate who is presently in restrictive housing or
who will be in the future to a substantial risk of serious harm. Plaintiffs also claim the
baseline conditions of confinement in segregation constitute an atypical and a significant
hardship in relation to the ordinary incidents of prison life, such that they have a
protected liberty interest in avoiding segregation, but the IDOC’s statewide policies and
systemic practices fail to provide inmates with adequate due process. Membership in the
class is based on whether putative class members are or will be in IDOC custody and
therefore subject to the formal policies and systemic practices at issue. It is not based on
the specific application and effect of those policies on each individual class member.
Accordingly, the Court finds that the requirement of numerosity is met.
2. Commonality re: Conditions of Confinement Claim
The second requirement of Rule 23(a) is that there are “questions of law or fact
common to the class.” FED. R. CIV. P. 23(a)(2). A single common question will do. Howard
45

v. Cook Cty. Sheriff's Off., 989 F.3d 587, 598 (7th Cir. 2021) (citing Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 359 (2011)); Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th Cir.
2012). But it “must be of such a nature that it is capable of classwide resolution,” meaning
that “determination of its truth or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.’” Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 550,
553 (7th Cir. 2016) (quoting Wal-Mart, 564 U.S. at 350). Accord Suchanek v. Sturm Foods,
Inc., 764 F.3d 750, 756 (7th Cir. 2014) (“What matters to class certification . . . [is] the
capacity of a classwide proceeding to generate common answers apt to drive the
resolution of the litigation.” (citation omitted); Jamie S., 668 F.3d at 497 (“[T]he plaintiffs
must show that they share some question of law or fact that can be answered all at
once and that the single answer to that question will resolve a central issue in all class
members' claims.”) (emphasis in original). “The critical point is ‘the need for conduct
common to members of the class.’” Phillips, 828 F.3d at 553 (quoting Suchanek, 764 F.3d at
756).
“[W]hen inmates provide sufficient evidence of systemic and centralized policies
or practices in a prison system that allegedly expose all inmates in that system to a
substantial risk of serious future harm,” commonality is satisfied. Parsons v. Ryan, 754
F.3d 657, 684 (9th Cir. 2014). See also Phillips, 828 F.3d at 557 (“If plaintiffs can present
classwide evidence that a prison is engaging in a policy or practice which rises to the level
of a systemic indifference, then we can identify ‘conduct common to members of the
class’ which advances the litigation.” (quoting Suchanek, 764 F.3d at 756 (emphasis and
internal quotation marks omitted))); Jamie S., 668 F.3d at 498 (“[A]n illegal policy might
46

provide the ‘glue’ necessary to litigate otherwise highly individualized claims as a class.”
(emphasis omitted)). Numerous courts within the Seventh Circuit and beyond have
concluded as much. See id. at 681 (collecting cases); Lippert v Baldwin, 10 C 4603, 2017 WL
1545672, at *2 (N.D. Ill. April 28, 2017); Rasho v. Walker, 07-1298-MMM, 2016 WL 11514940,
at *1 (C.D. Ill. Feb. 8, 2016); Holmes et al. v. Godinez, 311 F.R.D. 177, 217 (N.D. Ill. 2015);
Jackson et al. v. Sheriff of Cook Cnty., No. 06 C 0493, 2006 WL 3718041, at *3 (N.D. Ill. Dec.
14, 2006); Westefer et al. v. Snyder et al., Nos. 00-162-GPM, 00-708-GPM, 2006 WL 2639972,
at *3 (S.D. Ill. Sept. 12, 2006).
The commonality analysis requires “a precise understanding of the nature of the
plaintiffs’ claims.” Phillips, 828 F.3d at 552. Therefore, to begin, the Court will set forth the
legal standard for a conditions of confinement claim. See id. at 554.
“The Constitution does not mandate comfortable prisons, but neither does it
permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Conditions of
confinement that deprive inmates of “basic human needs” or “the minimal civilized
measure of life’s necessities” violate the Eighth Amendment’s proscription on cruel and
unusual punishment. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996) (citing Rhodes
v. Chapman, 452 U.S. 337, 347 (1981)). Thus, in order to succeed on an Eighth Amendment
claim for unconstitutional conditions of confinement, a prisoner must show: (1) a
deprivation that is, from an objective standpoint, sufficiently serious that it results in the
denial of the minimal civilized measure of life’s necessities, and (2) prison officials were
deliberately indifferent to this state of affairs. Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir.
2016) (quotation marks and citation omitted).
47

Defendant argues that commonality does not exist because questions regarding
conditions of confinement are too individualized to resolve at once (Doc. 190, pp. 46–47).
Defendant contends that conditions of confinement vary across the IDOC facilities, and
that conditions even vary within the same facility, and cites to inmate testimony
regarding cell size, cleaning supplies, cell temperature and ventilation (Id.). Conditions
such as these do indeed vary, which Plaintiffs readily admit (see Docs. 222, 224). However,
Plaintiffs’ claims do not rely on the types of conditions that differ between the facilities.
Rather, Plaintiffs’ claims are predicated on the baseline conditions in restrictive housing
that emanate from the IDOC’s formal policies and systemic practices and thus exist at
every facility. Specifically, Plaintiffs allege that inmates in restrictive housing at every
facility, regardless of their designation (i.e., investigative status, temporary confinement,
disciplinary segregation, or administrative detention), are kept in their cells for 22 to 24
hours per day without any meaningful human contact; denied basic privileges, out-ofcell-time, and programming; and subjected to double-celling and the threat of persistent,
excessive physical and verbal abuse from correctional officers (Doc. 1; Doc. 222, pp. 27–
43; Doc. 224, p. 25; see also Doc. 220). They further allege these common conditions expose
all inmates, and particularly mentally ill inmates, to a substantial risk of serious physical
and mental harm to which Defendant is deliberately indifferent (Doc. 1; Doc. 222, pp. 27–
43; Doc. 224, p. 25; see also Doc. 220).
Plaintiffs support their claim with references to the Illinois regulations, admissions
by IDOC officials, testimony from inmates, and expert reports from Dr. Haney and Mr.
Vail. That evidence shows that cell doors regularly limit inmates’ ability to communicate
48

with other inmates and staff from their cell. Access to phone calls, visits, religious and
educational services, the chow hall, the day room, employment opportunities, and
personal property is either nonexistent or significantly curtailed. Out-of-cell time is
limited. Inmates routinely are not offered the full amount of yard time required by IDOC
policy. Even when they are, they often refuse to go because the yards are unstimulating,
unsanitary, and/or unsafe. Cells are extremely small but nevertheless frequently
occupied by two inmates. Guards regularly use force against prisoners, chemical spray
on prisoners, and use racial epithets and slurs when speaking. While variations
undoubtedly exist between facilities as to other conditions, such as cleanliness, cell
fixtures, and rodent and insect control, these dissimilarities do not bear on or somehow
negate the broader, baseline conditions the facilities all have in common.31 It is those
common baseline conditions in restrictive housing that Plaintiffs contend subject inmates
to extreme social deprivation, profound levels of physical and mental idleness and
inactivity, and rampant mistreatment by staff. And it is those common baseline
conditions that Plaintiffs’ experts contend create a significant risk of serious harm for all

Some of alleged common conditions, such as restrictions on phone calls and visits, are set by the IDOC’s
formal policies. Other conditions are not derived from the formal policies. For example, there is no written
policy that directs officials to not provide inmates with the full eight hours of yard time each week or to
subject them to physical abuse. Plaintiffs instead contend these are systemic practices that exist at every
facility. However, Plaintiffs did not provide evidence as to all 25 of the IDOC’s facilities. Their experts
visited six facilities, and, by the Court’s count, the named Plaintiffs testified about their experiences in
restrictive housing at four of those same facilities (see Doc. 222, pp. 49–59; Doc. 190, pp. 13–26). But
Defendant made no argument and provided no evidence that this sampling of facilities was not
representative of all facilities (see Doc. 190). The Court finds that the nature and volume of Plaintiffs’
evidence is sufficient as a representative sample of all IDOC facilities. See Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 359 (2011) (explaining that anecdotal testimony from 1 in every 8 class members was “significant”
while anecdotal testimony from 1 in every 12,500 class members was not).
31

49

the prisoners who are subjected to them and, in fact, have already caused tremendous
harm to scores of inmates.
Plaintiffs have thus met their burden by showing significant proof that common
questions exist with respect to their conditions of confinement claim, namely, whether
the conditions that exist as a result of the IDOC’s formal policies and systemic practices deprive
class members of their basic human needs and expose them to a substantial risk of serious
harm; and whether IDOC is deliberately indifferent to that harm.
To be clear, the Court finds that Plaintiffs’ evidence and arguments at this stage
are sufficient to establish that common questions exist as to all putative class members
and the Court is not expressing any opinion as to whether Plaintiffs will ultimately
succeed on the merits of their claim. The same holds true for the analysis in all sections
that follow.
3. Commonality re: Due Process Claim
To succeed on a due process claim, the prisoner must show they were deprived of
a protected liberty interest and the procedures they were afforded were constitutionally
deficient. Lisle v. Welborn, 933 F.3d 705, 720 (7th Cir. 2019) (citing Scruggs v. Jordan, 485
F.3d 934, 939 (7th Cir. 2007)).
“Avoiding segregation can constitute a protected liberty interest,” but only when
the more restrictive conditions in segregation impose “‘atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.’” Lisle, 933 F.3d at 720–
21 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). In assessing whether segregation
implicates a protected liberty interest, the court looks to “the combined import of the
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duration of the segregative confinement and the conditions endured.” Hardaway v.
Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013) (quoting Marion v. Columbia Correction Inst.,
559 F.3d 693, 697 (7th Cir. 2009)).
Here, Plaintiffs have met their burden of showing proof that common questions
exist with respect to whether segregation in the IDOC gives rise to a protected liberty
interest. As discussed above, Plaintiffs have alleged and offered significant proof that a
number of harsh conditions exist in restrictive housing units across all IDOC facilities, for
all restrictive housing designations. Plaintiffs have also alleged and offered significant
proof that inmates are regularly placed in restrictive housing for extended periods of
time. Whether the conditions implicate a protected liberty interest is a question that can
be answered in a single stroke as to all class members.
There are also additional common questions related to the second part of the due
process analysis, which considers whether the procedures afforded to the inmate were
constitutionally deficient. Looking first to investigative status and temporary
confinement, Defendant contends that inmates subjected to these types of segregation are
not entitled to any process (Doc. 190, p. 44). While there are Seventh Circuit cases that say
as much, e.g., Townsend v. Fuchs, 522 F.3d at 765, 771 (7th Cir. 2008) (“[I]nmates have no
liberty interest in avoiding transfer to discretionary segregation—that is, segregation
imposed for administrative, protective, or investigative purposes.”), more recent cases
question that conclusion. See, e.g., Earl v. Racine Cty. Jail, 718 F.3d 689, 691 (7th Cir.
2013); Miller v. Dobier, 634 F.3d 412, 415 (7th Cir. 2011). These newer cases suggest that
non-punitive, discretionary segregation, which is typically imposed for only a short
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duration, can nevertheless implicate a liberty interest if the conditions are particularly
harsh and restrictive compared to ordinary prison life. Earl, 718 F.3d at 691; Miller, 634
F.3d at 415. Whether the conditions IDOC inmates face in segregation are bad enough
that inmates in investigative status and temporary confinement are entitled to some kind
of procedural protections is a question common to the entire class.
Turning next to disciplinary segregation, the Supreme Court requires that an
inmate facing disciplinary segregation be given:
1. a hearing with 24 hours’ advance written notice of the charges against
them;
2. an opportunity to call witnesses and present documentary evidence in
their own defense, unless doing so would jeopardize institutional safety
or correctional goals;
3. the aid of a staff member or inmate in presenting a defense, if the inmate
is illiterate or the issues complex;
4. an impartial tribunal; and
5. a written statement of reasons relied on by the tribunal.
Wolff v. McDonnell, 418 U.S. 539, 563–572 (1974).
Here, Plaintiffs have shown proof that common questions exist with respect to the
procedural protections afforded to inmates facing disciplinary segregation. Plaintiffs
allege that, as a matter of systemic practice, the Adjustment Committee hearings used to
impose a term of disciplinary segregation are perfunctory. Plaintiffs also claim that IDOC
policy permits disciplinary segregation for minor infractions and permits lengthy
sentences that are excessive and disproportionate. They support their claims with
documentary evidence and deposition testimony, as well as the expert report of Eldon
Vail. Mr. Vail reviewed well over one hundred inmate files and the IDOC’s hearing
procedures, sentencing guidelines, and sentencing practices. He concluded the IDOC
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regularly conducts disciplinary hearings that are anything but meaningful due to
deficiencies in the written policy and bad systemic practices. He further opined that
policy permits and the IDOC regularly imposes segregation for offenses that do not
warrant such a sentence because the offense did not pose a serious threat to institutional
security. He also concluded the IDOC imposes lengthy segregation sentences that far
exceed the norm for the field of corrections nationally. Mr. Vail also noted that these
lengthy segregation sentences have been shown to increase the risk of harm to prisoners
and do little, if anything, to modify behavior or provide deterrence.
Plaintiffs have thus met their burden by showing proof that common questions
exist with respect to their due process claim regarding disciplinary segregation, including
whether the IDOC’s disciplinary hearing policies and procedures fail to afford inmates
adequate process to address the allegations brought against them; whether inmates in the
IDOC are, as a matter of policy or practice, subjected to disproportionately unfair extreme
isolation sentences; and whether the length of disciplinary segregation sentences, as a
matter of policy or practice, is arbitrary and subject to abuse.
Finally, when it comes to administrative detention (or “AD” as it has been referred
to previously in this Order), the required procedural protections are slightly different
than those required for inmates facing disciplinary segregation. The Supreme Court
requires that an inmate sent to AD must receive an “informal, nonadversary” review of
the initial placement decision within a “reasonable time.” Hewitt v. Helms, 459 U.S. 460,
474 (1983); Proctor v. LeClaire, 846 F.3d 597, 609 (2d Cir. 2017); Westefer v. Neal, 682 F.3d
679, 684–86 (7th Cir. 2012). That means the inmate must be given “some notice of the
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reasons for [his] placement,” “an opportunity to present his views” to the prison official
who decided to place him in AD, and “enough time to prepare adequately for the
administrative review.” Proctor, 846 F.3d at 609 (quoting Hewitt, 459 U.S. at 476); Westefer,
682 F.3d at 684 (quoting Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S.
1, 14 (1979)). The inmate must also receive “some sort of periodic review” of their
placement in administrative detention to verify that they “[remain] a security
risk.” Hewitt, 459 U.S. at 477, n.9; Westefer, 682 F.3d 679. The periodic reviews can also be
“informal and nonadversary” but they “must still be meaningful and non-pretextual.”
Westefer, 682 F.3d at 686; Isby v. Brown, 856 F.3d 508, 527 (7th Cir. 2017).
Here, Plaintiffs have shown proof that common questions exist with respect to the
procedural protections afforded to inmates sent to administrative detention. Plaintiffs
claim the IDOC’s policy provides very vague criteria for placing an inmate in AD and the
IDOC routinely places prisoners in AD without telling them why, for how long they will
be confined, or what they need to do to get out. Plaintiffs allege that, as a matter of
systemic practice, the periodic reviews are perfunctory. Again here, Plaintiffs offered
documentary evidence and deposition testimony to support their claims, as well as, the
expert report of Eldon Vail. Accordingly, Plaintiffs have provided evidence
demonstrating commonality among the class when it comes to administrative detention:
whether the IDOC’s administrative detention review policies and practices fail to afford
prisoners adequate process.
To conclude, commonality has been satisfied as to both of Plaintiffs’ claims.

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4. Typicality
The third requirement of Rule 23(a) is that the claims or defenses of the
representative parties are typical of the claims or defenses of the class. FED. R. CIV. P.
23(a)(3). The typicality requirement is meant to ensure that there is “enough congruence
between the named representative’s claim and that of the unnamed members of the class
to justify allowing the named party to litigate on behalf of the group.” Spano v. The Boeing
Co., 633 F.3d 574, 586 (7th Cir. 2011). In other words, the named representative’s claims
must have “the same essential characteristics as the claims of the class at large.” Oshana
v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (quoting De La Fuente v. Stokely-Van
Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). It is well-established that typicality is
satisfied if the named representative’s claim “arises from the same event or practice or
course of conduct that gives rise to the claims of other class members and . . . [the] claims
are based on the same legal theory.” Oshana, 472 F.3d at (citing Rosario v. Livaditis, 963
F.2d 1013, 1018 (7th Cir. 1992)); De La Fuente, 713 F.2d at 232.
The standard for typicality does not require the facts underlying every claim to be
identical. De La Fuente, 713 F.2d at 232 (“The typicality requirement may be satisfied even
if there are factual distinctions between the claims of the named plaintiffs and those of
other class members.”) (citations omitted); 1 JOSEPH M. MCLAUGHLIN, MCLAUGHLIN ON
CLASS ACTIONS § 4:17 (11th ed. 2014) (“[M]inor factual differences between the claim of
the putative representative and class members ordinarily will not defeat a finding of
typicality, as the requirement does not require perfect overlap of circumstances.”).

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Defendant focuses on the alleged factual differences among the named Plaintiffs’
circumstances and insists that these differences defeat typicality (Doc. 190). But none of
the named Plaintiffs are contesting the particulars of their own placement in restrictive
housing. Rather, they are challenging as a general matter whether restrictive housing in
the IDOC is cruel and unusual and whether it is imposed without due process. Their
claims are based on conduct that is not unique to them. Both the named Plaintiffs and the
class they seek to represent are all subject to the same formal policies and systemic
practices, which expose them to a substantial risk of serious harm and denial of due
process. Furthermore, they all face the risk of the same constitutional deprivations caused
by those policies and practices. Thus typicality is satisfied.
5. Adequacy of Representation
The fourth and final requirement of Rule 23(a) is that the named plaintiffs and
proposed class counsel must fairly and adequately protect the interests of the class. FED.
R. CIV. P. 23(a)(4). Defendant does not challenge the adequacy of class counsel (see Doc.
190; Doc. 220, p. 29), and the Court has no reason to believe they are not qualified.
Therefore, the Court will only analyze whether the named Plaintiffs are adequate
representatives.
“A class representative must be part of the class and must ‘possess the same
interest and suffer the same injury’ as the other class members.” Orr v. Shicker, 953 F.3d
490, 499 (7th Cir. 2020) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011)).
All six of the named Plaintiffs remain in custody—some are in restrictive housing and
some have been returned to general population. Those who are currently in general
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population face a potential return to restrictive housing at anytime pursuant to the
system-wide policies and practices at issue in this case and thus are at risk of being
exposed to the purported due process violations and unconstitutional conditions of
confinement. Those who are currently in restrictive housing are actively exposed to the
purported due process violations and unconstitutional conditions of confinement. While
no inmate will have an experience identical to another, all inmates—including the named
Plaintiffs—are subjected to the same system-wide policies and practices governing
extreme isolation. Thus, the named Plaintiffs’ interests are aligned with the putative class
and adequacy is satisfied.
6. Rule 23(b)(2)
Along with satisfying Rule 23(a), a party seeking class certification must also meet
one of the requirements under Rule 23(b). Plaintiffs seek to certify a class for injunctive
and declaratory relief under Rule 23(b)(2); they are not seeking monetary damages.
Under Rule 23(b)(2), class certification is allowed where “the party opposing the class has
acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
FED. R. CIV. P. 23(b)(2).
Defendant makes a number of arguments as to why certification under Rule
23(b)(2) is not appropriate (Doc. 190, pp. 54–59), but they all relate to the merits of
Plaintiffs’ claims, which are not at issue at the class certification stage. None of the
arguments provide any reason that certification is inappropriate. Plaintiffs seek to cure
purported systemic defects in how the IDOC as a whole administers placement in
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extreme isolation. “Providing a vehicle for redressing civil rights violations on a
classwide basis through injunctive or declaratory relief is the fundamental purpose
of Rule 23(b)(2) [and it] is routinely employed as a tool to vindicate the civil rights of
prison inmates.” Westefer v. Snyder, No. CIV. 00-162-GPM, 2006 WL 2639972, at *9 (S.D.
Ill. Sept. 12, 2006) (citing cases); accord Parsons v. Ryan, 754 F.3d 657, 686 (9th Cir. 2014)
(“[F]ollowing Rule 23(b)(2)’s text and purpose, courts have repeatedly invoked it to
certify classes of inmates seeking declaratory and injunctive relief for alleged widespread
Eighth Amendment violations in prison systems.”) The injunctive relief sought by
Plaintiffs would address the IDOC’s policies and practices regarding restrictive housing
and prescribe a standard of conduct applicable to all class members.
Thus, the Court finds that the requirements of Rule 23(b)(2) are satisfied.
CONCLUSION
Defendant’s first motion to supplement (Doc. 225) is GRANTED IN PART AND
DENIED IN PART. It is granted as to the new case law but denied as to the IDOC
Administrative Directive and updated restrictive housing data. Defendant’s second
motion to supplement (Doc. 227) is GRANTED.
Plaintiffs’ motion for class certification (Doc. 173) is GRANTED. The following
class is CERTIFIED pursuant to Federal Rule of Civil Procedure 23(b)(2):
All prisoners who are now or will be incarcerated in adult correctional
facilities by the Illinois Department of Corrections and thus who are at risk
of being subjected to extreme isolation or who are currently subjected to
extreme isolation.

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Winston & Strawn, LLP and the Uptown People’s Law Center are APPOINTED
as counsel to the class.
The Clerk of Court is DIRECTED to SUBSTITUTE Rob Jeffreys, in his official
capacity, for John Baldwin as the Defendant in this case.
The Clerk of Court is further DIRECTED to strike the memorandum in support of
Plaintiffs’ motion for class certification (Doc. 174), Plaintiffs’ exhibit list (Doc. 182), and
their reply brief (Doc. 197) and include a note on the docket at Docs. 174, 182, and 197
that updated versions of these documents were subsequently filed on December 14, 2021
and can be found on the docket at Docs. 222, 223, and 224.
Plaintiffs shall file the exhibits to their Complaint as a new entry on the docket.
Plaintiffs shall submit directly to the Court ([e-mail]) a new public,
redacted version of Eldon Vail’s expert report that includes his Appendices.

IT IS SO ORDERED.
DATED: June 14, 2021
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

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