EAR of the Court

• Author: Hon. virginia kendall
• Pages: 44-46

Published in Litigation, Volume 48, Number 2, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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EAR of the Court

A Practical Approach to the

Pretrial Detainee Docket

HON. VIRGINIA KENDALL

The author is a U.S. district judge for the Northern District of Illinois and an associate editor of Litigation.

Mr. Jones is upset. He is a pretrial detainee in the Cook County

Jail and is venting about his cellblock. He thinks there is mold

in the shower that might be causing him to sneeze and snore.

He doesn’t think the sheriff is keeping the shower stalls clean.

He complains for at least 10 minutes about how difficult it is to

live under these conditions. His lawyer, appointed by the court

for this day only, is sitting to his right. This is all part of the

Northern District of Illinois’s Early Access and Relief (EAR)

program. Because Mr. Jones agreed to participate in the EAR

program, within two months after filing his case, he already has

access to a lawyer, early access to the discovery regarding his

complaint, and early access to a judge who will listen and see if

his case can be swiftly resolved.

Mr. Jones says his constitutional rights have been violated and he

wants $250,000 to resolve his case. He is appearing with his lawyer

via videoconference from the Cook County Jail. The Cook County

assistant state’s attorney (ASA) who represents the jail stands in

my courtroom and responds by citing the discovery that he pro-

vided to Mr. Jones and his lawyer the week before. The ASA has the

sanitation reports from the cell block cleanings showing the regular

sanitation of the showers; the policy that requires inmates to use

cleaning supplies to clean their own showers in addition to third-

party cleanings; and a possible fatal flaw to Mr. Jones’s case: He has

not filed a grievance about the problem, thereby not exhausting his

administrative remedy first.

Rather than waiting months for that motion to dismiss (which

inevitably would be filed) to be decided, possibly after a live court

hearing with testimony to determine whether he can proceed, Mr.

Jones on this day has the lawyers intently listening to his complaint.

The tenor of the hearing is respectful, calm, and nonjudgmental.

Early access to the judge is important to Mr. Jones. He wants

me to know what he is going through. He has the exclusive ear of

the court. I sympathize with the situation, and we discuss recent

cases from the Seventh Circuit about deliberate indifference and

failing to exhaust administrative remedies. We review the jail

policy and the logs of the cleaning (something kept diligently

since a consent decree ordered jail officials to monitor sanitation).

I ask the ASA if the jail would consider a solution to Mr.

Jones’s situation despite his admitted failure to exhaust his ad-

ministrative remedy by filing a grievance first. The jail proposes

an extra deep cleaning of his cell block within 30 days, extra

cleaning supplies on the floor for inmates, and a $100 deposit

into Mr. Jones’s commissary account. Mr. Jones talks with his

lawyer and demands $200. The case settles for the equitable

relief plus $150—just two months after filing.

How the Program Works

In 2019 in the Northern District of Illinois, 683 pro se filers were

given attorneys after seeking in forma pauperis status and the