Monroe et al v. Rauner et al

Filing 584

ORDER pursuant to April 26, 2023 status conference and continuation of the hearing on Plaintiffs' Motion for Finding of Contempt. The Motion for Finding of Contempt (Doc. 455 ) remains under advisement. The Court's Orders of January 19, 2 023 (Doc. 522 ) and April 4, 2023 (Doc. 552 ) remain in effect. To ensure continued timely progress and provide measurable benchmarks, the Court adopts the schedule herein (see Order for details). If Defendants again fail to comply with the Court's directives and schedule set forth herein, they will be held in contempt, and the Court will impose appropriate sanctions. Signed by Chief Judge Nancy J. Rosenstengel on 5/11/2023. (beb)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JANIAH MONROE,
MARILYN MELENDEZ,
LYDIA HELÉNA VISION,
SORA KUYKENDALL, and
SASHA REED, individually and on
behalf of a class of similarly situated
individuals,
Plaintiffs,
v.

Case No. 3:18-CV-00156-NJR

STEVEN BOWMAN,
MELVIN HINTON, and
LATOYA HUGHES,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
A status conference and continuation of the hearing on Plaintiffs’ Motion for
Finding of Contempt was held on April 26, 2023, via videoconference, attended by CoMonitors Dr. Amanda Harris and julie graham, as well as counsel for the parties. This
was another continuation of the proceedings held on December 15, 2022, which continued
on January 19, 2023, February 21, 2023, and March 31, 2023. Plaintiffs’ Motion for Finding
of Contempt (Doc. 455) remains under advisement. Another status conference will be
held via video on Friday, June 2, 2023, at 2:00 p.m. Central Time.
Following the January 19 Status Conference, the Court entered an Order setting
deadlines for certain actions, reports, and certifications to be completed (Doc. 522). A

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subsequent Order set forth directives following the March 31 Status Conference
(Doc. 552). Those Orders contain future deadlines and directives and remain in effect.
Summary of April 26, 2023 Hearing
The parties and Co-Monitors met twice since the last status hearing. On April 14,
2023, their meeting included Dr. Puga and other IDOC officials, and it focused on a
method to compile an accurate list of class members to track whether class members are
receiving transgender related health care as ordered by the Court. The lack of an accurate,
updated class list hinders the ability to monitor whether Defendants are making progress
to comply with several provisions of the injunctive relief orders—such as medication
monitoring, the Continuing Quality Improvement “CQI” tool, transfer requests, and
accurate placement information to ensure gender affirming items are available where
class members are located. An accurate list will also be needed for distribution of the
“tool kit” under development for class members.
Counsel for the parties met again with the Co-Monitors on April 19, 2023, to
discuss issues related to transfer requests from class members and whether there should
be an “automatic transfer” for class member(s) away from facilities that have failed to
comply with shower and search requirements. This issue will require further discussion
to develop solutions that do not “reward” noncompliance or harm individual class
members. 1

The parties’ next meeting was scheduled to occur yesterday, May 10, where they planned to
focus on potential revisions to the IDOC’s Administrative Directive regarding transgender
inmates. (Doc. 577). The Court is eager to hear the outcome of that meeting.

1

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Co-Monitor graham has investigated Plaintiffs’ reports of shower noncompliance
facility by facility, which has resulted in some corrections. This is time consuming for the
Co-Monitor and frustrating for the Court as it should have been a straightforward matter
for Defendants to provide private showers for class members as ordered long ago. In
August 2021, the Court ordered Defendants to “immediately” allow transgender inmates
access to a private shower (Doc. 332, p. 3). This directive was reiterated in the February
7, 2022, Preliminary Injunction which gave Defendants 14 days to report measures taken
to comply (Doc. 384, p. 10). Despite Defendants’ assurances and certificates of compliance
with the Court’s Orders, members of the class continued to report instances of
noncompliance at several institutions in late 2022 and early 2023. (See Doc. 455, Plaintiffs’
Motion for Finding of Contempt; Docs. 444, 450, 460, 546, Co-Monitor graham’s reports).
For example, some shower doors at Pinckneyville currently have a large hole through
which the person showering can be seen, and a solid metal plate in the upper door is not
high enough to prevent viewing the person’s chest area. (See Docs. 546, 559).
To be sure, some institutions have satisfactorily provided private showers, and
IDOC officials have responded to Co-Monitor graham’s inquiries with commitments and
action to correct identified problems. But Defendants’ persistent noncompliance in
several prisons during the twenty months since the Court first ordered Defendants to
remedy the lack of private showers is troubling to say the least. The parties’ and CoMonitors’ reports demonstrate that to the extent Defendants have complied with the
orders to provide private showers, many remedial actions have been taken only in
response to the ongoing efforts of Co-Monitor graham, rather than on Defendants’ own
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initiative. Co-Monitor graham has operated as an ombudsperson taking on an active role
in investigating, responding to class members’ reports, and problem-solving on the
private shower issue as well as complaints regarding body searches and other matters.
As graham put it, this type of intervention is “not exactly what I thought I was doing”
when she accepted the monitoring role.
Co-Monitor Harris has taken the lead on prompting Defendants to produce a
comprehensive list of class members that can be regularly and accurately updated. The
Co-Monitors’ and parties’ comments at the April 28, 2023, status hearing demonstrate
that such a list is a necessary prerequisite to successfully monitor and achieve compliance
with the medical provisions, class members’ transfer requests, and other issues covered
in the preliminary injunctions. Dr. Harris has received documentation on class members’
hormone therapy showing improvement in that area, but the information provided does
not give a comprehensive, individualized picture of each class member’s care. She is
working to develop a reporting system to aggregate available information on each class
member including the specific medications provided, referrals to the endocrine clinic if
applicable, where the person is housed, and whether they requested surgery or a transfer
and the outcome of such request(s). Defendants have been providing Co-Monitor Harris
with regular reports as previously ordered. Yet she is waiting to receive the monthly
census list from the mental health department of each facility, which is expected to
include all people diagnosed with or under evaluation for gender dysphoria or who are
otherwise members of the class. As the mental health providers are the “front line” staff
for individuals in custody who are experiencing gender dysphoria or are seeking gender
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affirming care, it is hoped that these monthly census lists will provide an accurate picture
of the class.
Defendants have provided Co-Monitor Harris with a sample of their CQI tool for
transgender care, but have yet to supply her with complete information covering all class
members.
Transfer requests by class members continue to be a concern. No transfer requests
were considered at the March 2023 TAC meeting, and Defendants report there is no
backlog of requests. A number of class members’ transfer requests were denied during
2021-2022, however, and it appears they have not been brought up for reconsideration
even when Defendants’ transfer chart indicated this would be done. (Sealed Doc. 563,
TAC Transfer List; See also Doc. 564, Joint Status Report). Further, Co-Monitor graham
and Plaintiffs’ counsel indicate that some class members may believe their transfer
requests are awaiting consideration when they in fact are not. It appears that Defendants
have not implemented steps to ensure that class members’ denied transfer requests are
brought up for reconsideration or to effectively inform individuals of the reconsideration
process or timeline. 2 The mental health providers are the “gatekeepers” to submit transfer
requests from class members, but it is unclear whether these providers are timely
submitting requests from class members who want to transfer or advising them of the
process to request a transfer. Defendants do not appear to have any tracking system to

Defendants were ordered in August 2021 to evaluate pending transfer requests from class
members seeking to move to a facility matching their gender identity by December 7, 2021,
provide the individual with a written explanation of each reason for a denial, and allow the
individual to again request a transfer within 180 days. (Doc. 332, pp. 2-3; Doc. 384, pp. 8-9).
2

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prompt the re-evaluation of denied transfer requests once 180 days have elapsed since a
denial. Plaintiffs’ counsel notes that the denial letters sent to class members lack specifics
on the reason(s) why the transfer was denied and what the individual must do to qualify
for a transfer. Defendants do not appear to have adopted any concrete, objective, or
transparent criteria for the TAC to apply when considering a transfer request. The lack of
an accurate list of individuals belonging to the class is a hindrance.
It is imperative that Defendants quickly finalize and distribute the “tool kit” or
“FAQ” handout for class members in consultation with Co-Monitor graham
(See Doc. 552, p. 9). This handout must clearly explain class members’ right to request a
transfer, the process for submitting transfer requests, and the re-evaluation process if a
transfer is denied. In addition, the parties—along with the Co-Monitors—should draft
objective criteria for consideration and ultimate adoption to guide the TAC in making
decisions on class members’ transfer requests. These criteria should include consideration
of an individual’s safety, medically necessary social transition, and whether mental
health issues may be improved by placing the individual in a facility matching their
gender identity.
Co-Monitor graham reports that the availability of gender affirming commissary
items is improving, but problems remain with timely stocking items on order. She
continues to troubleshoot these issues. Again, inaccuracies in the list of class members in
each facility prevents items from getting to those who need them.
Class members continue to report problems regarding searches, including delays
while waiting for a female staff member to search a transgender woman, or a search being
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conducted by the wrong gender officer. Co-Monitor graham has followed up on these
reports but has found it difficult to ascertain what happened, because class members
often do not file grievances out of fear of retaliation or being “outed” as transgender. The
parties plan continued discussion to agree on a process for Plaintiffs’ counsel and CoMonitor graham to receive copies of all grievances filed by class members relating to
issues in this case (not limited to searches). The Court expects that reports of any
noncompliance will continue to be filed by counsel and/or Co-Monitor graham.
Plaintiffs’ counsel should encourage class members to file grievances over instances of
misconduct related to searches so that these issues are documented and addressed.
Retaliation or other inappropriate conduct by IDOC staff against class members for filing
grievances will not be tolerated.
Fortunately, progress is being made to provide training to IDOC employees at
Logan, with sessions in June 2023 to train IDOC staff who will then conduct training of
other employees. The curriculum for training individuals in custody at Logan should be
completed by June 1, 2023, and this training should be completed by the end of September
2023.
Documents Filed After the April 26, 2023 Status Hearing
Defendants filed their report on April 28, 2023 (Docs. 571, 572), listing the inperson surgical consultations scheduled for 13 class members with Dr. Schechter, which
will take place between June 15, 2023, and July 20, 2023. 3 The Court had previously

This list of 13 individuals includes people who were approved for surgery as of January 4, 2023,
as well as additional individuals who were approved for gender affirming surgeries in March
3

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ordered Defendants to schedule these consultations to take place no later than March 8,
2023 (Doc. 522), and then extended the deadline to April 28, 2023 (Doc. 557). The
scheduled consultations are thus set to take place one and a half to three months after the
Court’s extended deadline. Further, Defendants did not comply with two previous orders
(Docs. 522, 552) to report whether and when another surgical provider at Rush Medical
Center will start accepting patients for gender affirming surgery, nor did they file a list
of other providers contacted for gender affirming surgery if another Rush provider is not
available. Instead, Defendants wish to continue working with Dr. Schechter, with whom
they have a longstanding relationship to provide gender affirming surgery. This track
record does not demonstrate reasonable diligence to comply with the ordered injunctive
relief. In fact, Defendants have flouted this Court’s Orders to identify additional
providers, which it was hoped would result in meeting the surgical needs of the class in
a more timely manner.
While the Court appreciates the value of having Dr. Schechter, a skilled genderaffirming surgeon, provide surgeries for class members, Defendants’ schedule raises the
question whether it is feasible for this single provider to timely perform the approved
surgeries, let alone surgeries that may be approved in the future. Notably, the June-July
2023 schedule is just for class members’ consultations—there is no indication of how
soon the actual surgeries will be performed. Moreover, Defendants admit that some
individuals who were previously approved for surgery have been dropped from the list

and April 2023 (Doc. 571). Defendants note that some individuals whose surgeries had been
approved are omitted from the list because they have been released from custody. Id.

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because their impending release dates from IDOC custody would not allow for surgery
and the necessary follow-up care. Had Defendants scheduled surgical consultations in a
timely manner as the Court ordered, these class members might not have lost their
opportunity for this medically necessary treatment. This clearly constitutes harm to the
affected class members.
Under these circumstances, the Court must hold Defendants to their previouslyordered obligation to explore the availability of other surgical providers, both at Rush
Medical Center and other locations, particularly for less-complicated surgery such as
mastectomies for transgender men and orchiectomy for transgender women. Plaintiffs
are encouraged to suggest other potential providers as well.
If Defendants again fail to comply with the Court’s directives and schedule set
forth below, they will be held in contempt, and the Court will impose appropriate
sanctions. Sanctions may include requiring Defendants to pay the Co-Monitors’ (Special
Masters’) fees (See Docs. 457, 558, 561) and the imposition of fines where a particular
prison continues to have verified reports of noncompliance with the orders for injunctive
relief as discussed above.
The Court finds it necessary to adopt the following additional schedule, to ensure
timely progress and provide measurable benchmarks. Future timelines set forth in the
Orders of January 24, 2023 (Doc. 522) and April 4, 2023 (Doc. 552) are included below.
The parties and Co-Monitors are ORDERED to do the following:
1. PLAINTIFF CLASS IDENTIFICATION/RECORDKEEPING:
On a monthly basis, Defendants shall promptly provide the mental
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health departments’ monthly census list of individuals in custody
who are members of the Plaintiff class, including their locations, to
both Co-Monitors and Plaintiffs’ counsel.
2. HORMONE THERAPY:
Defendants shall continue to monitor class members’ blood hormone
levels every three months as previously ordered, and shall file
quarterly updates regarding blood levels of all class members to the
Court under seal and to Co-Monitor Harris.
3. GENDER AFFIRMING SURGERY:
a. Defendants shall provide to Plaintiffs’ counsel, the Co-Monitors, and
file under seal by June 30, 2023, the dates on which the individuals
whose consultations are set for June 15, 2023 and June 22, 2023 (in
Doc. 572) will undergo gender affirming surgery. Defendants will
supplement this information as additional surgeries are scheduled
for the class members having consultations in July 2023, and for any
other class members who are newly scheduled for surgical
consultations and surgery.
b. Defendants shall report by June 1, 2023, whether and when another
surgical provider at Rush Medical Center will start accepting
patients for gender affirming surgery. If availability of another
provider at Rush cannot be confirmed by that date, then
Defendants shall file under seal a list of other providers contacted
for gender affirming surgery, no later than June 15, 2023.
c. Defendants shall continue to provide Plaintiffs’ counsel with copies
of future written decisions issued to class members on their requests
for gender affirming surgery.
4. CQI:
By June 15, 2023, Defendants shall provide the complete
audit/compliance tool in its native format, including data on all class
members (not merely a sample) to Plaintiffs’ counsel and to CoMonitor Harris for review. Defendants shall also communicate and
provide updates to Co-Monitor Harris and Plaintiffs’ counsel as class
members are added to or removed from the CQI tool.

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5. TRANSFERS:
a. Defendants shall issue written notice to all class members who
requested and were denied a transfer and who are still in custody, to
inform them of the right to request reconsideration after six months
from the denial. The notice shall specify the reason for the prior
denial, explain the issues that must be resolved before a transfer may
be approved, and explain the process to resubmit a transfer request.
The parties and Co-Monitors shall confer on the boilerplate contents
of this notification letter. Notices shall be provided by June 1, 2023
to class members whose transfer requests were denied on or before
October 31, 2022. Going forward, this notice shall be provided to
class members whose transfer requests were denied, after the
180 days has elapsed, informing the individual that they may submit
a request for reconsideration of the transfer denial and including the
information set forth above. Defendants shall provide copies of these
letters to Plaintiffs’ counsel, to both Co-Monitors, and to the mental
health provider assigned to the individual receiving the notice.
b. By June 15, 2023, Defendants shall file under seal with the Court a
list of the class members who received the first round of notices
(those due by June 1, 2023) and their current location. Thereafter,
Defendants shall report quarterly the list of class members who were
sent this notice during the previous period (due starting October 1,
2023, and thereafter on January 1, April 1, July 1, etc.).
c. The parties and Co-Monitors shall continue discussions to formulate
objective criteria to guide the TAC in making decisions on class
members’ transfer requests. These should include consideration of
an individual’s safety, medically necessary social transition, and
whether mental health issues may be improved by placing the
individual in a facility matching their gender identity, as well as
other relevant issues. They should be prepared to update the Court
on this issue at the next status hearing on June 2, 2023, at which the
Court may set a date for a written report on this matter.
d. Along with developing objective criteria to guide transfer decisions,
the parties and Co-Monitors shall continue discussion on when and
under what circumstances it would be appropriate for Defendants
to offer a transfer to individual class members to facilitate improved
care and social transition as well as safety.

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e. As previously noted (Doc. 552, p. 6), the current TAC committee
structure for deciding on class members’ transfer requests, and the
qualifications of the individuals involved continues to be a concern
in light of the slow pace of action on class members’ transfer
requests, and merits continued attention from the parties and CoMonitors to devise possible solutions.
6. COMMISSARY:
The parties and Co-Monitors shall continue working to achieve
adequate commissary supplies of gender affirming items
throughout IDOC facilities and to reach agreement on the items to
be included in a gender-affirming kit for all class members as
standard-issue medical care. By the June 2 continued hearing, the
parties and Co-Monitors shall propose compliance deadlines for the
gender-affirming commissary kit to be distributed to all class
members and to any new transgender person entering IDOC
custody. Issues to be resolved include what to do if different class
members want different items, and whether replenishment of such
items for class members will be honored as medical care.
7. SHOWERS:
a. As noted above, reports of noncompliance with the Court’s Orders
to provide private showers to class members continue to occur.
(Docs. 545-550, 553, 559, 569-570, 573). Co-Monitor graham will
continue to follow up on these reports, and the Court expects
Defendants and the officials at each facility to promptly respond and
address concerns. Going forward, the Court will accept Co-Monitor
graham’s certification if she finds that a facility is not in compliance
with the private shower mandate, and may impose appropriate
sanctions on Defendants if the facility is not promptly brought into
compliance.
b. Plaintiffs’ counsel shall continue to advise the Court and Co-Monitor
graham within seven days of their receipt of any reports of
noncompliance with the private shower requirement.
c. The parties and Co-Monitors shall continue discussions on
procedures and deadlines to offer a transfer to any class member
away from a facility that fails to provide them with a private shower,
to a facility where compliance has been achieved. The parties shall
file another joint status report on this issue by June 30, 2023.
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8. SEARCHES:
a. Reports of problems relating to the avoidance of cross-gender
searches have continued from some institutions (Docs. 546, 573).
These matters are complicated by class members’ reluctance to file
grievances, and by class members who do not wish to be publicly
identified as transgender out of fear of discrimination or safety
issues. Co-Monitor graham will continue to follow up with the
individual institutions to correct the problems identified, including
availability of female officers to conduct searches, and adequate
planning to ensure timely searches for pre-planned events such as
court and medical writs.
b. The parties and Co-Monitors shall continue discussions on
procedures and deadlines to offer a transfer to any class member
from a facility that fails to comply with the search provisions, to a
facility where compliance has been achieved. The parties shall file
another joint status report on this issue by June 30, 2023.
9. TRAINING:
a. Training of IDOC staff at Logan is underway, including training of
those IDOC employees who in turn will conduct training of other
staff members at Logan. Defendants shall report to the Court,
Plaintiffs’ counsel, and the Co-Monitors, on or before June 30, 2023,
on the content of that training, who participated, whether the
training of all Logan staff has been completed and if not, when it will
be completed.
b. Design of the training program for all incarcerated persons at Logan
should be finalized by June 1, 2023 and Defendants report all
incarcerated persons at Logan should have finished the training by
the end of September 2023. Defendants shall update the Court on
progress at the June 2, 2023 continued hearing.
c. Defendants shall also update the Court at the June 2, 2023 continued
hearing on the status of training provided to all IDOC staff at all
institutions regarding interactions with the transgender and gendernonconforming population. Initial training was provided by the
Moss Group in 2022. Has any refresher been given to staff and if so,
when? Are Defendants tracking employees’ completion of this
training and are new hires also undergoing this training?

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d. In response to the Order of April 4, 2023 (Doc. 552, p. 8, sec. 9.c.),
Defendants reported on April 25, 2023 (Doc. 562) that IDOC plans to
release a “roll call memorandum” to all facilities to be read at each
shift, to reiterate the Standards of Conduct expected of all staff, and
will address accountability for subordinates at the next Wardens’
meeting. By June 1, 2023, Defendants shall file a copy of the roll call
memorandum with the Court and provide it to Plaintiffs’ counsel
and the Co-Monitors. Defendants shall update the Court at the June
2, 2023 continued hearing as to how the matter was addressed at the
Wardens’ meeting and what further steps will be taken to train
administrators and subordinate staff on interacting with class
members in a professional manner, holding staff accountable for
misconduct and unprofessional behavior, and the expected timeline
to conduct further training.
e. As previously ordered (Doc. 552, p. 8, sec. 9.d.), the parties and both
Co-Monitors shall discuss and agree on the date by which additional
WPATH training will be completed for all medical and mental health
providers serving class members. Defendants shall file certificates of
completion by medical/mental health staff no later than June 30,
2023.
10. ADDITIONAL MATTERS & REPORTING:
a. The parties shall file a notice advising the Court of the date of each
monthly (or more frequent) meeting between counsel, the CoMonitors, and the appropriate IDOC officials, and the anticipated
topic(s) for discussion, as soon as each date is set.
b. As previously ordered (Docs. 522, 552), the parties and Co-Monitors
shall discuss and set timeframes for Defendants to provide copies to
Co-Monitor graham and Plaintiffs’ counsel of all class member
grievances concerning staff conduct relating to the issues in this case,
and for Defendants to provide copies to Co-Monitor graham and
Plaintiffs’ counsel, and file under seal, of any investigation or
disciplinary actions taken against a staff member for violations of
AD 03.02.108 (Standards of Conduct) relating to the issues in this
case.
c. As previously ordered (Docs. 522, 552), on a monthly basis,
Defendants shall provide Plaintiffs’ counsel with updates to the
IDOC transgender databases for medical care and accommodation.

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d. As previously ordered (Docs. 522, 552), Defendants shall provide to
Plaintiffs’ counsel any other documents provided to the CoMonitors, at intervals agreed upon by the parties and Co-Monitors.
e. As previously ordered (Docs. 522, 552), Defendants shall continue to
consult with Co-Monitor graham on the contents and finalization of
the “FAQ” or “tool kit” handout for transgender/gender
nonconforming individuals in custody. This should include
information to class members on the procedure to request transfer to
a different institution. By June 1, 2023, Defendants shall submit a
copy of this handout to the Court if it has been finalized, or shall
report on the expected timeline for its completion if it is not yet
finalized.
IT IS SO ORDERED.
DATED: May 11, 2023
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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