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Rasho v. Walker

United States District Court, C.D. Illinois, Peoria Division

May 25, 2018

ASHOOR RASHO, et al., Plaintiff,
v.
ROGER E. WALKER, et al., Defendants.

          ORDER

          Michael M. Mihm, U.S. District Court Judge

         This matter is before the Court on Plaintiffs' Motion for Enforcement of the Settlement Agreement (ECF No. 1559) and Motion to Amend Request for Relief and Memorandum on the Enforcement Process (ECF No. 1681). The Motions are GRANTED to the extent provided herein.

         IDENTIFICATION OF PARTIES AND OVERVIEW OF ACTION

         This case is a class action brought under 42 U.S.C § 1983 alleging violations of the Eighth Amendment of the United States Constitution, the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 794. (ECF No. 711-1 at 1). Plaintiffs challenge the adequacy of the delivery of mental health services to mentally ill prisoners in the physical custody and control of the Illinois Department of Corrections (“IDOC” or “Department”). Id.

         On August 14, 2015, this Court certified a class in this case for purposes of litigation, and pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, as follows:

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 addition, developmental disorder, or any form of sexual disorder shall not, by itself, render an individual mentally ill for the purpose of this class definition.

(ECF No. 252 at 7). Often referenced by both Parties, this case involves inmates who are “seriously mentally ill.” (See e.g. ECF Nos. 1965 and 1966-1). There are approximately 44, 000 inmates in the custody of the IDOC, of whom more than 12, 000 are believed to be mentally ill. (ECF No. 1758 at 50, testimony of Defendant Dr. Melvin Hinton (“Dr. Hinton”)). Approximately 4, 800 of these inmates are considered “seriously mentally ill.” (ECF No. 1758 at 51, testimony of Dr. Hinton; see also ECF No. 1966-1 at 2, Plaintiffs place the number at 4, 843). Ashoor Rasho, Patrice Daniels, Gerrodo Forrest, Keith Walker, Otis Arrington, Donald Collins, Joseph Herman, Henry Hersman, Rasheed McGee, Fredricka Lyles, Clara Plair, Desiree Hollis, and Crystal Stoneburner serve as the class representatives.

         The Defendants are John Baldwin, the Acting Director of the IDOC and Dr. Hinton, the Department's Chief of Mental Health Services and Addiction Recovery Services.

         The Parties entered into a comprehensive settlement agreement resolving the action set forth in the Plaintiffs' Third Amended Complaint, the operative complaint in this matter. (ECF No. 260). A fairness hearing was held on May 13, 2016. (Minute Entry dated 5/13/2016). During the hearing, the Court found the agreement to be fair and reasonable, over the voluminous objections that were filed by various inmates[1]. Id. The executed Settlement Agreement can be found in this docket, and is referred to herein as the “Settlement Agreement.” (ECF No. 711-1). The instant Motions are brought alleging violations of the Settlement Agreement and the Constitution.

         PROCEDURAL HISTORY

         On November 8, 2007, Plaintiff Ashoor Rasho filed a pro se Complaint alleging, among other things, that the Defendants had violated his Eighth Amendment rights by providing him insufficient medical treatment for his mental illness. (See ECF No. 1). Plaintiff's lawsuit was filed against various IDOC employees, including the then-Director of the IDOC, Roger E. Walker, Jr. Id.

         On December 21, 2007, Judge Harold A. Baker entered his Merit Review and Order on Pending Motions finding that the Plaintiff had stated claims for violations of the Eighth Amendment right to be free from: (1) indifference to a serious medical need; and (2) cruel and unusual punishment. (See ECF No. 9).

         On November 5, 2008, Marc R. Kadish entered his appearance on behalf of the Plaintiff (ECF No. 47), and thereafter during the December 1, 2008, scheduling conference requested leave to file an amended complaint. (See Minute Entry dated December 1, 2008).

         On May 4, 2009, an Amended Class Action Complaint was filed by Plaintiff Ashoor Rasho, Patrice Daniels, Gerrodo Forrest, Lynda Smith, Laterial Stinson, and Keith Walker, on their own behalf and on behalf of all mentally ill inmates who were or will be incarcerated in an IDOC adult correctional center. (ECF No. 54). The lawsuit again named several administrators within the IDOC. Id. The Plaintiffs and class members sought declaratory and injunctive relief requiring the Defendants to take prompt action to remedy the alleged violations of the Plaintiffs' and class members' constitutional rights regarding the mental health care they received. (See ECF No. 54; see also ECF No. 84).

         On October 25, 2010, this case was transferred to this Court pursuant to instructions from the then-Chief U.S. District Court Judge Michael P. McCuskey. (TEXT ORDER dated 10/25/2010). During the status conference held on October 29, 2010, Plaintiffs indicated that they were working toward class settlement and selection of outside experts to make recommendations to the Parties as to certain issues that had been identified. (Minute Entry dated 10/29/2010). Shortly thereafter, Plaintiffs sought to amend their operative Complaint for purposes of adding additional named plaintiffs, clarifying which counts were against which defendants, and eliminating damages claims on behalf of any named plaintiffs except Ashoor Rasho. (ECF No. 85). The Plaintiffs also filed a memorandum in support of its Motion to Certify Class noting that the requested class certification was for settlement purposes. (ECF No. 83-84). Defendants Dr. Sylvia Mahone, Dr. Michael F. Massa, and Wexford Health Sources, Inc. filed an objection to the Motion for Class Certification. The claims against these Defendants were ultimately severed from the rest of the case, and refiled in a separately docketed case. Rasho v. Walker, et al., ILCD No. 11-cv-1308; (see also, ECF No. 98, Case Management Order, fn. 1). The claims in the severed case were ultimately resolved by way of settlement. Rasho v. Walker, et al., ILCD No. 11-cv-1308, (ECF No. 111).

         On May 6, 2011, this Court entered an Order on the Stipulated Motion for Class Certification for Settlement Purposes (ECF No. 83) preliminarily certifying the class as:

All persons who are now or will be incarcerated in adult correctional facilities operated by the Illinois Department of Corrections (“IDOC”) and who, while incarcerated have a serious mental illness, defined as an Axis I disorder in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (hereafter “DSM-IV”), except that a diagnosis of alcoholism or drug addiction or any form of sexual disorder shall not by itself constitute a serious mental illness for purposes of this class definition.

(ECF No. 97 at 1-2). In addition, the Court issued an Order on May 6, 2011, staying the formal discovery efforts while the Parties pursued an expert report and while the Parties negotiated a possible settlement. (ECF No. 98 at 2). On May 7, 2012, the Parties submitted a Status Report at the direction of the Court detailing the efforts that had occurred in furtherance of the potential settlement and possible consent decree. (ECF No. 117). A status conference was held the next day wherein the Parties indicated the continued desire to work toward settlement. (Minute Entry dated 5/8/2012). At that time, the Court set the matter for another status conference on August 16, 2012. Id. That status conference was held and the Parties indicated during that hearing that a “great deal” of progress had been made toward settlement. (Minute Entry dated 8/16/2012). The matter was again set over for a status conference for September 13, 2012. On September 12, 2012, the Plaintiffs submitted a Status Report detailing the efforts of the possible consent decree and indicated the areas to which there were disputes. (ECF No. 120). At the Status Conference the next day, the Parties indicated that it was possible to complete the proposed consent decree by November 1, 2012. (Minute Entry dated 9/13/2012). The matter was then continued until November 8, 2012. Id.

         In the Status Report dated November 7, 2012, the Plaintiffs again indicated that the Parties were working through a draft of the proposed consent decree. (ECF No. 121). During the Status Conference the next day, the Court continued the matter over until January 9, 2013, and directed the interim mental health director, IDOC director, and any other person necessary to the settlement process to attend the hearing in person. (Minute Entry dated 11/8/2012).

         In the Status Report dated January 4, 2013, the Parties explained that the Defendants had engaged in a financial analysis of the proposed settlement, but outside of that action, there had been little change from what was reported to the Court on November 7, 2014. (ECF No. 122). During the January 9, 2013, Status Conference, the Court established additional deadlines for Defendants with respect to responding to the Plaintiffs' settlement proposal. (See TEXT ONLY ORDER dated 1/9/2013, “Discussion held and the Court sets deadlines for parties to address pending issues. A deadline of 1/23/2013 is set for the defense to submit definition [e.g. ‘serious mental illness'] to Plaintiffs' counsel (Other Deadline). Also set for defense counsel is the “Staffing and Building Proposal” deadline (Secondary Other Deadline) set for 2/8/2013.”). The Court set the matter over until March 19, 2013, and again required the Parties to provide a Status Report in advance of the status conference.

         The Status Report dated March 15, 2013, contained significant discussions on the status of the negotiations. (ECF No. 128). At that time, however, Plaintiffs specifically noted that, while the Defendants felt continued negotiations could bear fruit, Plaintiffs were not optimistic about the prospects of a settlement. (ECF No. 128 at 4). Plaintiffs also noted that they felt Defendants' most recent proposal was a step backwards in the negotiation process. Id. During the following Status Conference, Plaintiffs' counsel requested that the Court intervene and assist with the negotiations. (Minute Entry dated 3/19/2013). The Court agreed to do so, and set a settlement conference for April 16-18, 2013, and directed the parties to file brief with their positions (under seal) in advance of the settlement conference. Id. The settlement conference was held and, at least in this Court's view, yielded some positive results. In fact, shortly thereafter the Court entered an Agreed Order dated May 8, 2013, in order to “facilitate a consent decree in this matter.” (ECF No. 132; see also Minute Entry dated 5/8/2013). The May 8, 2013, Agreed Order specifically provided, among other things, that the Court would “appoint an independent and impartial Monitor who is knowledgeable concerning the management and oversight of correctional programs and the delivery of mental healthcare.” (ECF No. 132 at 6). Dr. Raymond F. Patterson was ultimately appointed as the Monitor. (See ECF No. 138, Motion for Order and TEXT ORDER dated 8/13/2013 and 8/21/2013). In a Status Report dated September 24, 2013, the Defendants outlined the activities they had taken in compliance with the May 8, 2013, Agreed Order to initiate efforts to improve the delivery of mental health services to seriously mentally ill offenders. (ECF No. 153).

         On July 23, 2014, the Court entered a TEXT ORDER setting this case for a Status Conference on August 15, 2014, subsequently reset for September 4, 2014. (TEXT ORDER dated 7/23/2014 and TEXT ORDER dated 8/15/2014). The Court noted that several class members, pro se, had moved the Court to compel the IDOC to comply with the May 8, 2013, Agreed Order. Additionally, on August 6, 2014, Plaintiffs, via their attorneys, filed a Motion to Enforce the Court's Order dated May 9, 2014. (ECF No. 182). In their Motion, it was noted that “[c]lass counsel's patience having been exhausted, and with no end in sight, the class seeks an order from this Court enforcing the completion of defendants' obligations under the May 8, 2013 Order, together with attorneys' fees and costs of having to continuously pursue these issues and bring this motion, and any other such relief or sanction as the Court may deem appropriate.” (ECF No. 182 at 8).

         A Status Conference was held on September 4, 2014, and a written Order was entered on September 5, 2014, outlining this Court's ruling during the Conference. (See Minute Entry dated 9/4/2014 and ECF No. 192). In the Order, the Court directed Defendants to take certain actions to inform Plaintiffs of its efforts to adhere to terms of the May 8, 2013, Agreed Order. (ECF No. 192). The Court reserved ruling on the Plaintiffs' Motion to Enforce and set the matter for a two day hearing on the proposed consent decree for November 20-21, 2014. (ECF No. 192). However, after the November 20-21, 2014, hearing, the Court found that no further action would be taken on the Motion. (See TEXT ORDER dated December 9, 2014, explain “Plaintiffs' Motion to Enforce May 8, 2013 Agreed Order [182] is GRANTED to the extent that the Court subsequently scheduled 9/4/2014 and 11/23/2014 status conferences and personally participated in settlement negotiations on 11/23/2014 and 11/24/2014.”). The Court also noted that “after two days of negotiations, the parties had made substantial progress toward the wording for a final Consent Decree.” (TEXT ORDER dated 11/24/2014). It was also noted that “the identification of points of controversy [that] cannot be resolved without IDOC, State Government and State Agency input.” Id. The Court, therefore, scheduled a supplemental settlement conference on Friday, March 20, 2015. Id. Prior to the hearing, the Court noted “little progress seems to have occurred since the November, 2014 settlement hearings.” (Minute Entry dated 3/19/2015). The March 20, 2015, hearing did not result in a settlement agreement and it started to become clear that prospects for a settlement were diminishing. (See TEXT ORDER dated 3/23/2011). During the hearing, Plaintiffs renewed their previously filed Motion to Enforce. (TEXT ORDER dated 3/23/2015).

         The matter was scheduled for hearing on July 20-21, 2015. Id. For their part, the Defendants sought an order from the Court that “[w]hen the motion to enforce has been resolved, the defendants [only then would be required to] participat[e] in the open exchange of information and regular telephone conferences with the Monitor and opposing counsel.” (ECF No. 218 at 4). The Court ultimately denied that request. (Minute Entry dated 5/1/2015). Additionally, other motions were filed that resulted in the matter being scheduled for a hearing on July 7, 2015. During that hearing it became clear that settlement negotiations had broken down and the case was scheduled for trial. (Minute Entry dated 7/7/2015).

         On August 14, 2015, this Court certified a class in this case for purposes of litigation, and pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the class was defined as follows:

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 addition, developmental disorder, or any form of sexual disorder shall not, by itself, render an individual mentally ill for the purpose of this class definition.

(ECF No. 252 at 7).

         On December 17, 2015, the Parties informed the Court of a proposed resolution of this matter and provided a draft of that agreement. (Minute Entry dated 12/17/2015). On December 22, 2015, the Court received a final copy of that agreement, as well as a proposed notice to the class. (ECF No. 289). The Court reviewed the agreement and made a preliminary determination that was a fair, adequate, and reasonable resolution of this action. (ECF No. 290). A fairness hearing was ultimately set for May 13, 2016. (Minute Entry dated 12/22/2015). During the hearing, the Court found the agreement to be fair and reasonable, over the voluminous objections that were filed by various inmates[2]. Id. The executed agreement can be found in this docket. (ECF No. 711-1).

         As part of the Settlement Agreement, the Parties agreed to the appointment of a monitor. (ECF No. 711-1 at 25). Ultimately, Dr. Pablo Stewart was selected as the Court appointed monitor. Id.

         On June 15, 2017, Dr. Stewart submitted his First Annual Report. (ECF No. 1373). In his report, Dr. Stewart explained “[m]any significant improvements to the mental health care delivery system in IDOC have occurred during this first year of the Settlement.” (ECF No. 1373 at 9). Dr. Stewart explained:

At all four of the R&Cs, mental health and suicide screenings occur in a timely manner in confidential settings. Mental health referrals and assessments are being accomplished within the required 14-day timeframe for offenders housed in the R&Cs. Mental health services orientation is occurring at all IDOC facilities. Segregation Review Committees were formed and significantly reduced the segregation terms of SMI offenders with more than 60 days left on their segregation terms. Structured out-of-cell activities have begun to occur in the RTUs and the Mental Health Unit at Pontiac. Staff have also begun to offer similar activities to offenders on the mental health caseload living in segregated housing units for greater than 60 days, and in some select facilities, to those in the unit for less than 60 days. Unstructured out-of-cell activities are also being offered and currently meet or exceed the requirements of the Settlement.

(ECF No. 1373 at 9). However, Dr. Stewart further explained:

Despite the substantial improvements to the mental health care delivery system, IDOC continues to have challenges in meeting the first-year requirements of the Settlement Agreement. Among IDOC's challenges is the grossly insufficient and extremely poor quality of psychiatric services. This overwhelming shortage and lack of standards undermines all of the efforts of IDOC to meet the first-year requirements of the Settlement.

(ECF No. 1373 at 10). These deficiencies were again emphasized in Dr. Stewart's Midyear Report of the Monitor dated November 22, 2017. (ECF No. 1646).

         On October 10, 2017, Plaintiffs filed their Motion for Enforcement of the Settlement Agreement. (ECF No. 1559). In their Motion, Plaintiffs argue the Defendants are not in compliance with the Settlement Agreement in any of the following areas: (1) Treatment Plans; (2) Evaluations; (3) Medications; (4) Segregation; and (5) Crisis Treatment and Transitions. (ECF No. 1559). The Plaintiffs subsequently filed their Motion to Amend Request for Relief and Memorandum on the Enforcement Process further supporting their position. (ECF No. 1681).

         An evidentiary hearing on the Motions was held on December 18 and 19, 2017, and February 27-March 2, 2018. (Minute Entries dated 12/18/2017, 12/19/2017, 2/27/2018, 2/28/2018, 3/1/2018, and 3/2/2018). The Court conducted the evidentiary hearing in two phases. In phase one, Plaintiffs presented their evidence on December 18 and 19, 2017. Plaintiffs introduced exhibits and called as witnesses Dr. Pablo Stewart, the Court Monitor under the Settlement Agreement; Dr. Michael Dempsey, the Department's former Chief of Psychiatry; Dr. Melvin Hinton, the Department's Chief of Mental Health; and Corrie Singleton and Sam Span, two mentally ill prisoners housed at Pontiac Correctional Facility. (ECF No. 1652, 1751, and 1758).

         On February 27 and 28 and March 1 and 2, 2018, Defendants introduced exhibits, cross examined Dr. Stewart, and presented testimony from Dr. William Puga, the Department's new Chief of Psychiatry; Dr. Hinton; Gladyse Taylor, the Department's Assistant Director; Sandra Funk, the Department's Chief of Operations; Marcus Hardy, the Department's Executive Assistant to the Director; Dr. Jeff Sim, the Department's Statewide Mental Health Quality Improvement Manager; Elaine Gedman, Executive Vice President and Chief Administrative Officer of Wexford Mental Health Sources, Inc.; and Amy Cantorna, Wexford's Mental Health Quality Assurance Coordinator. (ECF No. 1866, and 1903-06). Dr. Stewart was recalled for additional questioning on particular topics at the request of the Court. (ECF No. 1905).

         After the close of evidence on March 2, 2017, the Court heard arguments from counsel. The Parties have submitted proposed findings of fact and conclusions of law. (ECF Nos. 1857, 1965, and 1966). On April 25, 2018, this Court orally announced its ruling on the Plaintiffs' Motion and Amended Motion to Enforce Settlement Agreement, and sets the matter for hearing on possible equitable relief. Both Parties submitted briefs in advance of the hearing. (ECF Nos. 2049 and 2057). On May 22, 2018, a hearing was held to discuss the possible forms of preliminary relief. (Minute Entry dated 5/22/2018). This Order follows.

         DISCUSSION

         The Court begins with a discussion on its authority to render this decision. Section XXIX of the Settlement Agreement sets forth provisions for dispute resolution. There has been no dispute that the Parties have engaged in the necessary procedure to bring this matter to this Court. (See ECF No. 711-1 at 29, Settlement Agreement provides for an informal dispute resolution amongst the Parties.). The Settlement Agreement allows for the Plaintiffs to seek relief from this Court if there is a dispute as to whether or not the Defendants are in substantial compliance. (ECF No. 711-1 at 29). The Settlement Agreement specifically provides:

f) If the Court finds that Defendants are not in substantial compliance with a provision or provisions of this Settlement Agreement, it may enter an order consistent with equitable and legal principles, but not an order of contempt, that is designed to achieve compliance.
g) to permit enforcement of the terms of this Settlement Agreement in federal court, the parties agree that, should it become necessary to seek the Court's assistance as to violations of this agreement, any order granting such relief must include a finding that the relief sought is narrowly drawn, extends no further than is necessary to correct the violation of the federal right, and is the least intrusive means for doing so.

(ECF No. 711-1 at 30) (Emphasis added). The underlined language tracks the language contained in the Prison Litigation Reform Act, 18 U.S.C. § 3626 (“PLRA”). While the Settlement Agreement does not specifically provide for a preliminary injunction hearing, the PLRA provides for preliminary injunctive relief to remedy violations. The PLRA provides:

(2) Preliminary injunctive relief.-
In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.

18 U.S.C. § 3626(a)(2) (Emphasis added). Given the above, the Court finds that a preliminary injunctive hearing is the appropriate mechanism. Defendants have objected to this mechanism arguing Plaintiffs will never have the obligation of actually proving there is a violation of federal law. (ECF No. 1709 at 2). The Court disagrees as the Plaintiffs will have to seek permanent relief at some point in this proceeding. The Court finds the procedure utilized is consistent with the terms of the Settlement Agreement and the PLRA.

         Preliminary Injunction Standard and Summary of Decision

         In order to satisfy the requirements for a preliminary injunction, at the onset, Plaintiffs must show: (1) without a preliminary injunction, they will suffer irreparable harm before the final resolution of his claims; (2) ‘traditional legal remedies would be inadequate'; and (3) that they have ‘some likelihood of succeeding on the merits of his claim.'” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., 549 F.3d 1079, 1086 (7th Cir. 2008); Farnam v. Walker, 593 F.Supp.2d 1000, 1004 (C.D. Ill. 2009). If the Plaintiffs establish the required showing, the Court then must balance the potential harms to the parties and, if appropriate, the public interest. Id.

         The Court finds that the Plaintiffs have established all of the necessary requirements for a preliminary injunction to be issued. As more fully explained below, the Court finds that the Plaintiffs will suffer irreparable harm before the final resolution of the claims. The record contains ample evidence that they are receiving inadequate mental health treatment in the areas of treatment plans, evaluations, medications, segregation, and crisis treatment and transitions. The testimony of almost all of the medical doctors at the hearing clearly stated, in one form or another, the system in place to treat mentally ill inmates at the IDOC is in a state of emergency.

         Testimony was also offered demonstrating the irreparable harm being done to the inmates. Not only did the Plaintiffs offer the testimony of mentally ill inmates (ECF No. 1758 at 4, et seq. and 127, et seq.), Dr. Hinton testified, among other admissions, that there are a significant number of mentally ill inmates who are in dangerous situations because there is inadequate staffing at the IDOC (ECF No. 1758 at 53).

         The Court also finds that the traditional legal remedies are inadequate. The Court finds an injunction must be issued in order to prevent the continuing harm the inmates face from the IDOC's inability to maintain adequate staffing. Finally, the Court finds the Plaintiffs have established a likelihood of succeeding on the merits of their claim. As noted above, the testimony at the hearing adequately showed the current “emergency” state of the IDOC's ability to treat mentally ill inmates.

         The Court has considered the balance of the potential harms to the Parties and the public interest. The Court recognizes there are budgetary and some non-economic hurdles (e.g. recruitment) in properly staffing the institutions with adequate mental health professionals. Nonetheless, the Court finds any such constraints are dwarfed by the immense harm to the inmates. The failure to properly treat these inmates - particularly those in segregation - is making them worse “across the board” according to Dr. Hinton. (ECF No. 1758 at 82). These are mentally ill individuals, who themselves are left, in a very real way, at the mercy of the IDOC to provide them with the constitutionally minimal level of health care. And this is simply not being done, and based on the record presented, will not be done unless there is a preliminary injunction issued by this Court.

         Finally, the Court has considered the public interest in issuing this preliminary injunction. The Defendants did not raise any issue as to public safety or the ability to operate the prisons if there was adequate staffing. In fact, the record indicates quite, to the contrary, that adequate staffing may actually decrease certain prison problems. (See ECF No. 1757 at 260, testimony of Dr. Stewart explained that there is an increase in the use of crisis cells, use of restraints, use of force, all as a result of patients not being seen frequently enough). The Court recognizes there is a financial component to adequately staffing the institutions. However, the evidence presented during the hearing was that adequate staffing has been budgeted, the positions are just not being filled.

         In the end, the Court finds there is little harm in requiring the Defendants to do what they agreed to do, budgeted to do, and, based on this record, are constitutionally required to do.

         Inadequate Staffing

         As noted above, the Plaintiffs argue the Defendants are not in compliance with the Settlement Agreement in the areas of treatment plans, evaluations, medications, segregation, and crisis treatment and transitions. The Defendants acknowledge they have not fully complied with the terms of the Settlement Agreement. (ECF No. 1965 at 5). The Defendants instead argue the evidence at the hearing was insufficient for this Court to make a finding that there has been a systemic lack of substantial compliance.

         The most fundamental issue effecting each of these areas is the IDOC's deficiency in psychiatric and other mental health staffing. This is generally undisputed. The IDOC houses approximately 12, 000 inmates who suffer from mental illness, with over 4, 800 who are considered seriously mentally ill. (ECF No. 1716, Pl. Ex. 22; see also ECF No. 1758 at 50, testimony of Dr. Hinton). These inmates need a certain level of on-going care. During the hearing, several of the witnesses testified about the system-wide staffing problems and the IDOC's inability to meet the required standard of care under the Constitution.

         The IDOC's inability to properly staff the institutions with psychiatrists has been a persistent problem. (ECF No. 1716, Plt. Ex. 23, providing summary staffing levels for Nov. 2015, Sept. 2016, and June 2017). Dr. Hinton acknowledged that the IDOC had only 29 psychiatrists available, with a system-wide need of 65 psychiatrists. (ECF No. 1758 at 48). The Defendants explain, however, efforts have been made to increase the staffing levels, or otherwise meet the inmates' mental health needs by utilizing alternatives. For example, the IDOC has considered a program to utilize primary care physicians to provide mental health services, as well as considering the use of certified nurse practitioners. (ECF No. 1758 at 74). At least as to this point, these efforts have not materialized into any significant improvements in the inmates' mental health treatment.

         When asked directly about the ability to provide psychiatric care with such a deficiency in staffing, Dr. Hinton's testimony was clear - the IDOC cannot deliver the required level of care.

         In the simplest form, Dr. Hinton testified as follows:

Q. You know today you can't deliver the care-the psychiatric care that is required for the 12, 000 patients because you don't have enough psychiatrists?
A. Correct.

(ECF No. 1758 at 50).

         Dr. Hinton was asked about the dangers the lack of appropriate staffing can have on an individual who is taking psychotropic medicine. The harm was demonstrated in the following exchange:

Q. And you've heard all the ills that can come if somebody is on psychotropic medicine and it's not being monitored, right?
A. Correct.
Q. And you know that's dangerous, don't you?
A. Correct.
Q. And you know that the 6, 000 people are being endangered every day they're not seen correctly; isn't that right?
A. Certainly is a concern, yes.
Q. It's more than a concern. It's your responsibility that they get that care; isn't that right?
A. Correct.
Q. And you know they're not getting it?
A. Correct.

(ECF No. 1758 at 52-53).

         Dr. Hinton's testimony regarding inmates who are in segregation was also alarming. Dr. Hinton explained the problem related to this issue in the following questions and answers:

Q. [ ]. Why do you have so many mentally ill people in segregation and so few regular population people in segregation?
A. I think, in general, the percentage of folks who are mentally ill tend to have more behavioral issues, in part because of their mental illness.
Q. So, you've got so many of them in segregation because they do -- they don't follow ...

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