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DISABILITY RIGHTS LEGAL CENTERPaula D. Pearlman (SBN 109038)[email protected] L. Parks (SBN 208301)[email protected] Strugar (SBN 232951)[email protected] Albany St.Los Angeles, CA 90015Tel: (213) 252-7406; Fax: (213) 487-2106

Melinda Bird (SBN: 102236)[email protected] Bayley (SBN: 218070)[email protected] RIGHTS CALIFORNIA3580 Wilshire Blvd., Suite 902Los Angeles, CA 90010-2512Tel: (213) 427-8747; Fax: (213) 427-8767

Attorneys for Plaintiffs (continued on next page)

UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIA

PETER JOHNSON, DONALDPETERSON, MICHAELCURFMAN, ANDRE BUTLER, JOEGONZALEZ, COLUMBUSGRIGSBY, and DERRICK WHITEon behalf of themselves and all otherssimilarly situated,

Plaintiffs,

vs.

LOS ANGELES COUNTYSHERIFF'S DEPARTMENT, apublic entity; LEROY BACA, asSheriff of the County of LosAngeles, and COUNTY OF LOSANGELES, a public entity,

Defendants.

Case No.: CV 08-3515 DDP (SHx) PLAINTIFFS' MEMORANDUM OFPOINTS AND AUTHORITIES INSUPPORT OF TEMPORARYRESTRAINING ORDER

Honorable Dean Pregerson

Action Filed: May 29, 2008

Trial Date: October 4, 2011

Case 2:08-cv-03515-DDP -SH Document 143-1 Filed 05/05/11 Page 1 of 29 Page ID#:3333


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TABLE OF CONTENTSPage

I. INTRODUCTION ................................................................................................ 1

II. STATEMENT OF FACTS ................................................................................... 3

A. Class Member Terry Alexander. ................................................................ 3B. Other Class Members. ................................................................................ 6C. LASD Does Not Dispute that It Has Has a Policy of

Disciplining Inmates Who Refuse to Give Up TheirWheelchairs by Placing them in Inaccessible Cells inDisciplinary Segregation. ........................................................................... 7

D. Procedural History. .................................................................................... 8

III. ARGUMENT........................................................................................................ 9

A. Standard for TRO. ...................................................................................... 9B. Plaintiffs Are Likely to Succeed on the Merits. ......................................... 9

1. Mr. Alexander is a "Qualified Individual." ................................... 112. Defendants Qualify as Public Entities and Public Programs. ........ 113. Defendants are both Excluding Mr. Alexander from

Participation in the Program or Activity andDiscriminating on the Basis of his Disability. ............................... 12a. Excluded from Participation in or Denied the Benefits

of Program or Activity. ....................................................... 124. Defendants are Also Discriminating On the Basis of

Disability By Failing to Provide ReasonableAccommodations to Mr. Alexander. ............................................. 13

C. Plaintiffs Are Likely to Suffer Irreparable Harm WithoutA Temporary Restraining Order. ............................................................. 151. Mr. Alexander faces Irreparable Harm. ......................................... 152. Notice to Plaintiffs is Necessary to Prevent

Irreparable Harm. ........................................................................... 18D. The Equities Tip Sharply in Plaintiffs' Favor. ......................................... 18E. Temporary Restraining Order Is In the Public Interest. ........................... 20F. A Temporary Restraining Order Complies with the

Prison Reform Litigation Act PLRA). ................................................. 21

IV. CONCLUSION .................................................................................................. 22



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TABLE OF AUTHORITIES

Page(s)C ASES

Alliance for the Wild Rockies v. Cottrell ,632 F.3d 1127 (9th Cir. 2011) .............................................................................. 9

Armstrong v. Davis ,275 F.3d 849 (9th Cir. 2001) ........................................................................ 10, 12

Armstrong v. Wilson ,124 F.3d 1019 (9th Cir. 1997) ............................................................................ 10

Barden v. City of Sacramento ,292 F.3d 1073 (9th Cir. 2002) ............................................................................ 12

Bay Area Addiction Research and Treatment, Inc. v. City of Antioch ,179 F.3d 725 ....................................................................................................... 10

Chalk v. United States Dist. Court Cent. Dist. ,840 F.2d 701 (9th Cir. 1988) .............................................................................. 15

Clarkson v. Coughlin ,898 F. Supp. 1019 (S.D.N.Y. 1995) ................................................................... 14

Collings v. Longview Fibre Co. ,63 F.3d 828 (9th Cir. 1995) ................................................................................ 11

Crowder v. Kitagawa ,81 F.3d 1480 (9th Cir. 1996) .............................................................................. 12

Cupulo v. Bay Area Rapid Transit ,5 F. Supp. 2d 1078 (N.D. Cal. 1997) .................................................................. 16

Dunlap v. Ass'n of Bay Area Gov'ts ,996 F. Supp. 962 (N.D. Cal. 1998) ..................................................................... 14

E.E.O.C. v. City of Bowling Green, Ky. ,607 F.Supp.524 (D. Ky. 1985) ........................................................................... 15

Enyart v. Ntl. Conf. of Bar Examiners, Inc. ,630 F.3d 1153 (9th Cir. 2011) ...................................................................... 16, 21



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Fernandez v. Nevada ,2010 WL 5678693 (D. Nev. Oct. 28, 2010) ....................................................... 18

GoTo.Com v. Walt Disney Co. ,202 F.3d 1199 (9th Cir. 2000) ............................................................................ 16

Gresham v. Windrush Partners, Ltd. ,730 F.2d 1417 (11th Cir. 1984) .......................................................................... 16

Harris v. Board of Supervisors ,366 F.3d 754 (9th Cir. 2004) .............................................................................. 17

Henrietta D. v. Giulianni ,331 F.3d 261 (2d Cir. 2003) ............................................................................... 10

Johnson v. California ,543 U.S. 499 (2005)............................................................................................ 10

LIH ex. Rel. LH v. New York City Bd. Of Educ. ,103 F. Supp. 2d 658 (E.D. N.Y. 2000) ............................................................... 15

Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co. ,887 F.Supp. 1320 (N.D. Cal. 1995) ...................................................................... 9

Love v. Westville Corr. Ctr. ,103 F.3d 558 (7th Cir. 1996) .............................................................................. 14

Lovell v. Chandler ,303 F.3d 1039 (9th Cir. 2002) ............................................................................ 10

McGary v. City of Portland ,386 F.3d 1259 (9th Cir. 2004) ............................................................................ 14

Orantes-Hernandez v. Smith ,541 F. Supp. 351 (C.D. Cal. 1982) ....................................................................... 9

Pennsylvania Dep't of Corr. v. Yeskey ,524 U.S. 206 (1998)............................................................................................ 11

People ex rel Van de Kam v. Tahoe Regional Planning Agency ,766 F.2d 1319 (9th Cir. 1985) .............................................................................. 9

Pierce v. County of Orange ,526 F.3d 1190 (9th Cir. 2008) ................................................................ 11, 13, 14



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Presta v. Peninsula Corridor Joint Powers Bd. ,16 F.Supp. 2d 1134 (N.D.Cal. 1998) .................................................................. 14

Robertson v. Las Animas County Sheriff's Dept. ,500 F.3d 1185 (10th Cir. 2007) .......................................................................... 11

Rodde v. Bonta ,357 F.3d 988 (9th Cir. 2004) .............................................................................. 10

Save Our Summers v. Wash. State Dept. of Ecology ,132 F. Supp. 2d 896 (E.D. Wash. 1999) ............................................................. 17

Sullivan v. Vallejo City Unified Sch. Dist. ,5 F. Supp. 947 (E.D. Cal. 1990) ......................................................................... 17

TOPIC v. Circle Realty ,377 F. Supp. 111 (C.D. Cal. 1974) ..................................................................... 16

Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002) ............................................................................ 14

Weinreich v. Los Angeles County Metropolitan Transp. Authority ,114 F.3d 976 (9th Cir. 1997) .............................................................................. 10

Winter v. Natural Resources Defense Council, Inc. ,555 U.S. 7, --, 129 S.Ct. 365 (2008) ................................................... 9, 15, 19, 20

Wong v. Regents of Univ. of Cal. ,192 F.3d 807 (9th Cir.1999) ............................................................................... 14

STATUTES

18 U.S.C. 3626 ...................................................................................................... 21

28 U.S.C. 794 ........................................................................................................ 10

29 U.S.C. 794 et seq. ..................................................................................... passim42 U.S.C. 12101 .................................................................................................... 10

42 U.S.C. 12102 .................................................................................................... 11

42 U.S.C. 12131 et seq. .............................................................................. 8, 10, 11

42 U.S.C. 12134 .................................................................................................... 12



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R EGULATIONS

28 C.F.R. 35.130 ................................................................................................... 14

28 C.F.R. 35.149 ................................................................................................... 12

28 C.F.R. 35.150 ............................................................................................. 12, 13

28 C.F.R. 35.152 ................................................................................................... 13

Cal. Code Regs. 1247 ............................................................................................. 5



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I. INTRODUCTIONThis Court is already familiar with the practice of "declassification" of prisoners

with disabilities, by which the Los Angeles Sheriff's Department ("LASD") moves

prisoners with mobility impairments out of the only two modules in the Men's CentralJail in which they are permitted to use mobility aides, such as wheelchairs, crutches

and walkers. See, e.g. , First Amended Comp., 67 (Dkt. No. 97); Memorandum in

Support of Class Certification at 5 (Dkt. No. 107).

This application for a Temporary Restraining Order ("TRO") concerns the

shocking consequences of LASD's declassification practice, whereby prisoners who

are unable to comply with an order to leave their wheelchair are punished with

placement in solitary confinement in inaccessible discipline cells. They are denied

visitors, recreation and telephone calls for months at a time. One class member Mr.

Terry Alexander is currently in solitary confinement in a discipline cell as

punishment for his inability to comply with an erroneous declassification order to

leave his wheelchair. Mr. Alexander has been found to be permanently and totally

disabled; upon examination by outside community doctors, three separate state prison

facilities and at least one doctor in the jail, he has shown an inability to walk. Andyet, one doctor, an LASD employee, has determined that he can walk, albeit without

the benefit of any medical testing such as an MRI or even a review of his medical

history.

Plaintiffs seek a TRO to remove Mr. Alexander from the solitary confinement

in which he is currently held, unless and until he is provided with an independent

medical evaluation by a doctor mutually agreed upon by the parties, or failing such an

agreement, by Plaintiffs' own medical expert. It is virtually certain that an

independent medical evaluation will confirm what every other clinician (including

those with the Social Security Administration) have concluded that he needs a

wheelchair and cannot walk.

Plaintiffs seek immediate relief for Mr. Alexander, who is highly likely to



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prevail on his discrimination claims under Title II of the Americans with Disabilities

Act ("ADA"), 42 U.S.C. 12131, et seq. , and Section 504 of the Rehabilitation Act

(29 U.S.C. 794). Because of LASD's complete disregard for the requirements of the

ADA, Mr. Alexander has no means of relief other than through this application.Defendants readily concede that they punish individuals who do not agree to give up

their wheelchairs, without regard to competing medical evidence or earlier medical

assessments by Jail doctors. Defendants also fail to provide an effective mechanism

for disputing the withdrawal of necessary accommodations for those individuals with

disabilities. Disciplining inmates with disabilities for their inability to relinquish

needed accommodations violates the ADA and results in irreparable injury to class

members who have suffered serious physical falls as a result. Class members are also

harmed by the increased isolation and deprivation in solitary confinement, which far

exceeds that in a normal correctional setting. To compound this harm, the Jail's

practice of placing prisoners in discipline calls that are physically inaccessible and

lack even grab bars is an independent violation of the ADA and creates an even

greater risk of harm from a serious fall, especially since the prisoner is alone and has

no means to obtain help.

Plaintiffs seek a limited TRO at this time because Defendants' practice of

punishing inmates for requesting continued accommodations cannot be allowed to

continue without modification during the litigation of this case. Mr. Alexander will

suffer irreparable harm if he is kept in solitary confinement, which is commonly

known as being in the "hole." The current harm to Mr. Alexander is substantial,

whereas the potential harm to Defendants from complying with a TRO is negligible.The proposed order requires Defendants to provide Mr. Alexander with the

accommodations and accessible housing that he had before he was placed in the

"hole," for an interim period until an independent medical examination can be

arranged.

Plaintiffs also seek limited relief for other class members, in the form of



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advance notice to Plaintiffs' counsel, when other prisoners are about to be placed in

solitary confinement because they are unable to give up their wheelchairs. Once a

prisoner is placed in solitary confinement, he is not allowed telephone calls, making

contact with anyone on the outside virtually impossible. As a result, Plaintiffs'counsel have generally learned post facto that class members have been subjected to

discipline because they cannot give up their wheelchairs. Mr. Alexander's case is the

first in which Plaintiffs counsel have learned that a class member is in the "hole" in

time to seek relief for him. Consequently, until this Court has an opportunity to rule

on the legality of Defendants' overall declassification practice, Plaintiffs seek an order

requiring them to provide 48 hours advance notice before imposing discipline, in the

form of solitary confinement, on any class member. This relief is modest, will not

prevent Defendants from implementing declassification orders in appropriate cases

and will not cause them undue burden.

For these reasons, Plaintiffs respectfully request that the Court issue a

preliminary order prohibiting Defendants from imposing punishment or discipline on

class member Terry Alexander for failing to leave his wheelchair, pending a medical

exam, by Plaintiffs' medical expert or a third party medical expert selected by the

parties, to determine whether Mr. Alexander can in fact move around without a

wheelchair or other assistive device, and also prohibiting Defendants from imposing

discipline, in the form of solitary confinement, on any other class member without

first providing Plaintiffs counsel with 48 hours advance notice.

II. STATEMENT OF FACTS

A. Class Member Terry Alexander. Mr. Terry Alexander has been incarcerated in the Los Angeles Jail since June

2010. He has limited use of his legs, has a history of paraplegia, and has not been able

to walk since 2003. Declaration of Terry Alexander ("Alexander Decl.") 5, dated

May 3, 2011; Declaration of Dr. Terry Hill ("Hill Decl.") 9, dated May 4, 2011.

Exhibit A to Declaration of Dr. Hill. In January 2011, this court approved



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certification of a class of prisoners with mobility impairments. Mr. Alexander is a

member of this class.

Mr. Alexander was permanently disabled as a result of a forklift accident in

2003, and has used a wheelchair continually since then. Alexander Decl. 5. Mr.Alexander was previously in prison, during which doctors ordered him a wheelchair.

Hill Decl. 10, 12. Before Mr. Alexander went to Men's Central Jail, he received

Social Security disability benefits for his injury. Id. 9. When police arrested him on

approximately June 2, 2010, he used a wheelchair every day. Id. 5, 10.

After his arrest, Mr. Alexander saw a doctor in the Inmate Reception Center. Id.

10. That doctor ordered that Mr. Alexander be provided a wheelchair. Id. 11.

After this exam, Mr. Alexander went to the wheelchair unit. Id.

Since then, Mr. Alexander has seen another doctor at the jail, Dr. Zasorin, on

three occasions. Id. 14, 19, 21. Each time, she has asked him if he can move his

legs, and recommended that his wheelchair be taken away. Id. Even though Mr.

Alexander can move his legs, he is unable to stand or walk for any significant length

of time and thus needs a wheelchair to move around. Until the last visit, in October,

2010, there was no indication that Dr. Zasorin had ever seen Mr. Alexander's medical

records. Id. Mr. Alexander has received a physical exam from two other doctors

besides Dr. Zasorin in the jail. Id. 11, 18. Each one of those doctors ordered a

wheelchair for Mr. Alexander. Id.

On April 29, 2011, Plaintiffs' expert, Dr. Terry Hill, examined community

medical records provided to Plaintiffs' counsel by Mr. Alexander. Hill Decl. 7. Dr.

Hill opined that there is evidence of paraplegia, muscle wasting, and weakness inlower extremities. Hill Decl. 9. Dr. Hill found that this is strong data that Mr.

Alexander needs a wheelchair. Dr. Hill stated that Mr. Alexander's records "provide

very clear evidence that Mr. Alexander had a documented need for a wheelchair and

other accommodations from not one, but three different California Department of

Corrections" institutions. Hill Decl. 10.



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days at a time on repeated occasions. Alexander Decl., 26-28.

B. Other Class Members.Mr. Alexander's situation marks the first time that Plaintiffs have had the

opportunity to intervene on behalf of a class member while he is currently indiscipline. But the record is already replete with examples of other class members

who have reported the past imposition of discipline for failing to leave their

wheelchairs, and who fear a repetition of this discipline. For example, the

declarations submitted in support of Plaintiffs' Motion for Class Certification describe

instances in which class members were forced to give up their wheelchairs to avoid

discipline and suffered injury as a consequences, or where they were placed in solitary

confinement with all its attendant deprivations. See, e.g., Memorandum of Points and

Authorities re Class Certification, Dkt No. 107, filed 11/12/10 at 6 to 7, and

Declarations of Class Member Tashami Sims, 8-12, 15 (Compendium Exh. D) (Mr.

Sims has been sent to "the hole" for disobeying an order when he was unable to walk

on command, even though he has occasional paralysis); Declaration of Named

Plaintiff Columbus Grigsby 14-16 (Compendium Exh. B) (placed in disciplinary

segregation because he questioned why he was being declassified from the wheelchair

unit); Declaration of Named Plaintiff Andre Butler 15 (Compendium Exh. B)

(nearly four months in disciplinary segregation for failing to give up his wheelchair);

Declaration of Derrick White 22-28 (Compendium Exh. B) (approximately four

months in disciplinary segregation for failing to give up his wheelchair).

As with Mr. Alexander, there was compelling evidence that these plaintiffs and

class members were permanently disabled and required a wheelchair as anaccommodation. For example, Mr. Butler had been provided a wheelchair in the state

prison system, and, as of 2008, classified as a "full time wheelchair user" by the

California Department of Corrections and Rehabilitation. See Dkt. 107-9 at 33-35,

CDC Disability Placement Program Verification, 11/5/08, 6/3/08 and 8/14/03, Exh. I

to Parks Decl.



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One Named Plaintiff who is currently in the jail has also been warned and

threatened with discipline. Declaration of Derrick White ("White Decl."), 2, dated

May 3, 2011. Mr. Derrick White is partially paralyzed on the left side of his body. Id.

He has been in Jail since February 2009. Id. 8. During this time, the LASD hasclassified him as requiring a wheelchair and then declassified back into general

population at least five times. Id. 17, 18, 20, 21, 26. Each time LASD has

declassified him to general population, deputies have taken his wheelchair away, and

provided him with no accommodations. Id. 15 . As a result, he has had to crawl to

get around in general population. Id.

Mr. White is a named Plaintiff in this litigation. First Amended Compl. 22.

Defendants noticed his deposition for April 5, 2011. White Decl. 30. On the

morning of his deposition, LASD sent Mr. White to the "declass line." Id. He spoke

to a doctor, but received no physical examination. Id. 32-36. Within one week of

Mr. White's deposition, Defendants told Mr. White that he was being declassified, yet

again. Id. 38. This was despite the fact that on March 12, 2009, a doctor told

deputies that Mr. White needs a wheelchair, Id. 12, and despite the fact that on April

21, 2009, Dr. Little a physician in the Jail's Medical Services Bureau ordered a

wheelchair for Mr. White. Id. 17. Deputy Martinez informed Mr. White that he

must leave the wheelchair unit. Id. 38. He said, "If you don't move when I come to

take you, we will move you out of the wheelchair ourselves. . . And if you refuse our

orders, you will go to "the hole" where you will be stripped of everything." Id. 39.

Thus far, Mr. White has been threatened but not actually placed in discipline, so

he still has access to a telephone and visitation with his mother. But once he oranother class member is actually placed in a discipline cell, he will have only a limited

ability to contact anyone outside the jail, including counsel.

C. LASD Does Not Dispute that It Has Has a Policy of DiscipliningInmates Who Refuse to Give Up Their Wheelchairs by Placing themin Inaccessible Cells in Disciplinary Segregation.

Defendants have not disputed that that it is the Jail's practice to discipline any



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prisoner who fails to give up his wheelchair when ordered to do so. Deputies have

testified to this in depositions. 1 An inmate who cannot walk has two choices: agree to

go to general population- where he must crawl, ask other inmates for help, or simply

refrain from walking; or refuse to give up his wheelchair and go to "the hole."Defendants may argue that class members have an opportunity to contest the

imposition of discipline through what is commonly known as "the Sergeant's court,"

which affords a very limited appeal to a custody supervisor. Alexander Decl. 26.

However, this discipline review hearing offers no relief to class members, since it

does not permit a prisoner to question the validity of the order to give up his

wheelchair, only whether the order was actually disobeyed.

D. Procedural History.Plaintiffs brought this case in 2008 to address the systemic failure of the County

of Los Angeles to provide accommodations, modifications, services and physical

access for people with disabilities who are housed within the Los Angeles County Jail

system. . They alleged these failures violate federal and state laws prohibiting

disability-based discrimination, including the Americans with Disabilities Act (42

U.S.C. 12131 et seq .) ("ADA") and Section 504 of the Rehabilitation Act of 1973

(29 U.S.C. 794 et seq. ) ("Section 504") and analogous state statutes.

Plaintiffs' First Amended Complaint states that people with disabilities are

inappropriately segregated and excluded from programs and services. First Amended

Compl. 4. Defendants' systemic discrimination against inmates with disabilities

includes: the failure to appropriately identify those inmates, the absence of a

comprehensive set of policies or procedures for identifying and accommodatinginmates with disabilities, and the failure to provide appropriate mobility aids. First

Amended Compl. 34-35. . The Complaint also states that inmates "have had their

1 The deposition transcripts are not yet available. Defendants have also refused to provide other discovery materials thatwould further confirm this practice, and issue that is pending before the Court in the pending motion to compel.Plaintiffs intend to submit a motion for summary adjudication regarding the existence and legality of this practice assoon as they obtain these transcripts and evidence.



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wheelchairs taken away or are denied the use of a wheelchair despite their obvious or

documented need for one. At best, these inmates use dangerously inadequate

alternatives, such as walkers, in an attempt to move around. At worst, inmates must

deal with excruciating pain when attempting to walk, crawl on the floor, or simplystay in bed for days, weeks or even months while they are incarcerated." First

Amended Compl. 9.

Plaintiffs filed a motion to certify a class of inmates with mobility impairments,

and the Court indicated that it was granting Plaintiffs' motion on January 12, 2011.

III. ARGUMENT.

A. Standard for TRO.The purpose of a Temporary Restraining Order ("TRO") is to preserve the

status quo pending the opportunity for a full hearing. The standard for a TRO is the

same as for a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes

Aircraft Co. , 887 F.Supp. 1320, 1323 (N.D. Cal. 1995). "A plaintiff seeking a

preliminary injunction must establish that he is likely to succeed on the merits, that he

is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest."

Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, --, 129 S.Ct. 365, 374

(2008). "Alternatively, plaintiffs may prevail upon a showing (1) that serious

questions are raised, and (2) that the balance of hardships tips sharply in their favor."

Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011).

Plaintiffs can demonstrate these elements. 2

B. Plaintiffs Are Likely to Succeed on the Merits. Congress enacted the Americans with Disabilities Act ("ADA") "to provide a

2 This Court has the discretion to issue interim relief without requiring Plaintiffs to post a security. People ex rel Van deKam v. Tahoe Regional Planning Agency , 766 F.2d 1319, 1325-26 (9th Cir. 1985), modified on other grounds, 775 F.2d998 (9th Cir. 1985). Exercise of that discretion is particularly appropriate where an action is brought by a class of indigent plaintiffs, or where there is a strong likelihood of success on the merits. Orantes-Hernandez v. Smith , 541 F.Supp. 351, 386 n.42 (C.D. Cal. 1982). Both of these reasons support waiving any security in this case. Moreover,Defendants will bear no meaningful cost if the Court enters the order to preserve the status quo.



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clear and comprehensive national mandate for the elimination of discrimination

against individuals with disabilities." 42 U.S.C. 12101(b)(1). Title II of the ADA

states in pertinent part: "[N]o qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of theservices, programs, or activities of a public entity, or be subjected to discrimination by

such entity. " 42 U.S.C. 12131. 3

"To prove a public program or service violates Title II of the ADA, a plaintiff

must show: (1) he is a 'qualified individual with a disability'; (2) he was either

excluded from participation in or denied the benefits of a public entity's services,

programs or activities, or was otherwise discriminated against by the public entity;

and (3) such exclusion, denial of benefits, or discrimination was by reason of his

disability." Weinreich v. Los Angeles County Metropolitan Transp. Authority , 114

F.3d 976, 978 (9th Cir. 1997); see also Lovell v. Chandler , 303 F.3d 1039, 1052 (9th

Cir. 2002); Rodde v. Bonta , 357 F.3d 988, 995 (9th Cir. 2004) (granting request of

Medi-Cal patients with special needs at county hospital to enjoin closure of hospital).

To establish a violation of Section 504 of the Rehabilitation Act, the plaintiff must

show a violation of the ADA and that the public entity receives federal funding.

Armstrong v. Davis , 275 F.3d 849, 862 n. 17 (9th Cir. 2001), abrogated on other

grounds, Johnson v. California , 543 U.S. 499, 502 (2005); see also Henrietta D. v.

Giulianni , 331 F.3d 261, 272 (2d Cir. 2003). There is a strong probability that Mr.

Alexander will succeed on the merits of this action. Defendants have deprived

Mr. Alexander of access to programs and services solely for failing to take actions that

his disability prevents him from taking- a direct violation of the ADA.

3 Section 504 of the Rehabilitation Act provides: "No otherwise qualified individual with a disability. . . shall, solely byreason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected todiscrimination under any program or activity receiving Federal financial assistance." 28 U.S.C. 794(a). The NinthCircuit's "interpretation of Title II of the ADA applies equally to 504 of the Rehabilitation Act." Bay Area Addiction

Research and Treatment, Inc. v. City of Antioch , 179 F.3d 725, 730 n. 8, 733 n.14 (9th Cir. 1999). The language of thetwo statutes is "similarly expansive" and "Congress has directed that the ADA and RA [Rehabilitation Act] be construedconsistently." Armstrong v. Wilson , 124 F.3d 1019 (9th Cir. 1997). Because these standards are imposed consistently,Plaintiffs shall refer to the ADA and Section 504 Rehabilitation Act claims collectively as ADA claims.



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1. Mr. Alexander is a "Qualified Individual."The term "qualified individual with a disability" means an individual with a

disability who, with or without reasonable modifications to rules, policies, practices,

the removal of architectural, communication, or transportation barriers, or theprovision of auxiliary aids and services, meets the essential eligibility requirements for

the receipt of services or participation in programs or activities provided by a public

entity. 4 42 U.S.C. 12131(2). Mr. Alexander meets this definition. Terry Alexander

has crushed discs in his spine and a history of paraplegia. Alexander Decl. 4-5;

Hill Decl. 9. Indeed, a number of LASD doctors have implicitly concluded that Mr.

Alexander has a serious mobility impairment by assigning him to the wheelchair unit

in Mens Central Jail and assigning him to a wheelchair. Alexander Decl. 11, 18.

This evidence is more than sufficient to demonstrate a likelihood that Mr. Alexander

will establish at trial that he is a "qualified individual" under the ADA and

Rehabilitation Act.

2. Defendants Qualify as Public Entities and Public Programs.Defendant County of Los Angeles and LASD are local government entities

within the meaning of Title II of the ADA, and receive state and federal fundingwithin the meaning of the Rehabilitation Act. The Los Angeles County Jails are a

"public entity" whose facilities, services, and programs are subject to the mandates of

the ADA and the Rehabilitation Act. See Pierce v. County of Orange , 526 F.3d 1190,

1215 (9th Cir. 2008) (ADA applies to Orange County jail system); Robertson v. Las

Animas County Sheriff's Dept. , 500 F.3d 1185, 1193 (10th Cir. 2007); Pennsylvania

Dep't of Corr. v. Yeskey , 524 U.S. 206, 210 (1998) (ADA applies to state prisons).

4 Disability is defined as a physical or mental impairment that substantially limits a major life activity, a record of suchan impairment, or being regarded as having such an impairment. 42 U.S.C. 12102(2). The definition under theRehabilitation Act is the same. Collings v. Longview Fibre Co. , 63 F.3d 828, 832 n. 3 (9th Cir. 1995).



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Indeed, in newly promulgated regulations, the U.S. Department of Justice

specifically identified and addressed issues in correctional facilities in this regard,

stating:Public entities shall implement reasonable policies,including physical modifications to additional cells inaccordance with the 2010 [accessibility] Standards, so as toensure that each inmate with a disability is housed in a cellwith the accessible elements necessary to afford the inmateaccess to safe, appropriate housing.

28 C.F.R. 35.152(b)(3).

The ADA plainly requires the most basic facilities or services in jails, such as

toilets, sinks, showers, and drinking fountains, to be safely accessible to detainees

with disabilities. See Pierce , 526 F.3d at 1218, 1224 n.44 (adequate bathroom

facilities are "services" of the jail within the meaning of the ADA). Moreover,

barriers must be removed when necessary to avoid unlawful discrimination. 28

C.F.R.. 35.150. Defendants have placed Mr. Alexander in a discipline cell that does

not have grab bars for the toilet and is therefore not accessible pursuant to ADA

regulations. Alexander Decl. 29. Because of this barrier, Mr. Alexander has fallen

multiple times while trying to transfer out of his wheelchair onto the toilet. Id.

4. Defendants are Also Discriminating On the Basis of DisabilityBy Failing to Provide Reasonable Accommodations to Mr.Alexander.

The failure to provide persons with mobility impairments like Mr. Alexander

the basic accommodations necessary for them to be able to perform ordinary activities

of daily life such as moving around and going to the bathroom without extraordinary

hardship or risk of serious injury constitutes discrimination. Defendants must "make[such] reasonable modifications in policies, practices, or procedures . . . [as] are

necessary to avoid discrimination [against Plaintiffs] on the basis of disability." Id.

35.130(b)(7). In other words, under both the ADA and Section 504, the failure to



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provide reasonable accommodations is a form of discrimination. 5 Pierce v. County of

Orange, 526 F.3d 1190, 1215 (9th Cir. 2008); McGary v. City of Portland , 386 F.3d

1259, 1267 (9th Cir. 2004) (ADA); Vinson v. Thomas , 288 F.3d 1145, 1154 (9th Cir.

2002) (Section 504). Failure to provide a reasonable accommodation is actionablediscrimination under the ADA "because the ADA not only protects against disparate

treatment, it also creates an affirmative duty in some circumstances to provide special,

preferred treatment, or 'reasonable accommodation.'" Dunlap v. Ass'n of Bay Area

Gov'ts , 996 F. Supp. 962, 965 (N.D. Cal. 1998). Indeed "[t]he purpose of the ADA's

reasonable accommodation requirement is to guard against the facade of 'equal

treatment' when particular accommodations are necessary to level the playing field."

McGary v. City of Portland , 386 F.3d 1259, 1267 (9th Cir. 2004); see also Presta v.

Peninsula Corridor Joint Powers Bd. , 16 F.Supp. 2d 1134, 1136 (N.D.Cal. 1998)

("[i]n the context of disability, therefore, equal treatment may not beget equality").

Mr. Alexander suffers under the threat that Defendants will confiscate one

essential accommodation, his wheelchair, and also is being denied basic

accommodations such as toilet grab bars in the meantime. The lack of appropriate

medical accommodations for inmates with disabilities, constitutes illegal

discrimination on the basis of disability under the ADA. See 28 C.F.R.

35.130(b)(1)(vii) (public entity may not limit an individual with a disability "in the

enjoyment of any right, privilege, advantage, or opportunity enjoyed by others

receiving the aid, benefit, or service."). 6

5 Although Title II of the ADA uses the term "reasonable modification," rather than "reasonable accommodation," these

terms create identical standards. See Wong v. Regents of Univ. of Cal. , 192 F.3d 807, 816 n. 26 (9th Cir.1999). Thus,these terms are used interchangeably.6 Defendants have segregated Mr. Alexander and have threatened to segregate Mr. White because of his disability, inviolation of the ADA. 28 C.F.R. 35.130(d) (public entity must administer services, programs, and activities "in themost integrated setting appropriate to the needs of qualified individuals with disabilities."); Love v. Westville Corr. Ctr. ,103 F.3d 558, 558 61 (7th Cir. 1996) (segregation of quadriplegic inmate in the infirmary, which resulted in exclusionfrom recreational facilities, dining hall, visitation facilities, substance abuse programs, education, church, work, andother programs available to the general population violated the ADA); Clarkson v. Coughlin , 898 F. Supp. 1019, 1047,52 (S.D.N.Y. 1995) (exclusion of inmates with disabilities from prison programs violated the ADA). By placing Mr.Alexander in "the hole" for his refusal to give up his wheelchair, and by refusing to provide Mr. Alexander with anyavenue to appeal or obtain a second opinion, Defendants deny Mr. Alexander any access to programs and servicesprovided by the Jail. By its nature, "the hole" constitutes a complete exclusion from participation in jail services,



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C. Plaintiffs Are Likely to Suffer Irreparable Harm Without ATemporary Restraining Order.

1. Mr. Alexander faces Irreparable Harm.

For the Court to issue a temporary restraining order, Plaintiffs must demonstratethat they are likely to suffer irreparable harm. Winter, 555 U.S. 7 (2008). Mr.

Alexander readily satisfies this standard because he is in solitary confinement for what

can be proved to be an erroneous classification decision. Additionally, Defendants'

practice of punishing him for his inability or refusal to walk constitutes a statutory

violation. Independent of the statutory violation, Mr. Alexander suffers

discrimination, physical injury resulting from falls and emotional and dignitary harm

during time spent or threatened time spent in "the hole."

Where plaintiffs may erroneously suffer discipline because of actions arising

from their disability, plaintiffs suffer irreparable harm. See LIH ex. Rel. LH v. New

York City Bd. Of Educ. , 103 F. Supp. 2d 658, 665 (E.D. N.Y. 2000) ("it is clear to this

Court that the harms resulting from the defendants' failure to follow the statutorily

required procedures for the imposition of discipline on students with disabilities

creates a substantial likelihood of irreparable injury."). Mr. Alexander is beingpunished pursuant to an order that is probably an error. The erroneous order and

resulting discriminatory treatment cannot be redressed once Mr. Alexander's time in

"the hole" has been completed. The unintended consequences for Mr. Alexander,

such as his inability to contact his ailing mother, and his falling down in an

inaccessible cell, can only be fixed by allowing him to keep a wheelchair, and

remaining outside of "the hole," until he can have a full medical examination.

Moreover, the non-monetary deprivation of an individual's right to be free from

discrimination can constitute irreparable harm. Chalk v. United States Dist. Court

Cent. Dist. , 840 F.2d 701, 709 (9th Cir. 1988); see also, E.E.O.C. v. City of Bowling

programs and activities. Mr. Alexander has no access to programs, visits, or telephone calls. Alexander Decl. 16, 29.This wholesale denial of program access is a violation of the ADA. Chaffin , 348 F.3d at 861.



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Green, Ky. , 607 F.Supp.524, 527 (D. Ky. 1985) (inability to keep up, anxiety and

emotional problems resulting from age discrimination constitute irreparable harm).

Where Defendants place Mr. Alexander in "the hole" because he does not get out of a

wheelchair, and his refusal stems from a medically-diagnosed determination that heneeds the wheelchair, this punishment unquestionably constitutes discrimination on

the basis of his disability.

Mr. Alexander also suffers irreparable harm because of Defendants' ADA

violations. Mr. Alexander alleges that Defendants violate the ADA and Section 504

of the Rehabilitation Act. Courts have found a rebuttable presumption of irreparable

harm where plaintiffs demonstrate a likelihood of success on the merits of an alleged

statutory violation. See Cupulo v. Bay Area Rapid Transit , 5 F. Supp. 2d 1078, 1084

(N.D. Cal. 1997) (in ADA case, deprivations of civil rights constitute irreparable

injury); TOPIC v. Circle Realty , 377 F. Supp. 111, 114 (C.D. Cal. 1974) (substantial

likelihood of success n the merits of alleged violation of fair housing statutes

sufficient to support injunction), rev'd on other grounds, 532 F.2d 1273 (9th Cir.

1975), cert. denied, 429 U.S. 859 (1976); Gresham v. Windrush Partners, Ltd. , 730

F.2d 1417, 1424 (11th Cir. 1984) ("irreparable injury may be presumed from the fact

of discrimination and violations of fair housing statutes"); GoTo.Com v. Walt Disney

Co. , 202 F.3d 1199, 1205 (9th Cir. 2000) (irreparable injury in trademark

infringement claim is presumed from a showing of likelihood of success on the merits

of Lanham Act claim); but see Enyart v. Ntl. Conf. of Bar Examiners, Inc. , 630 F.3d

1153, 1167 (9th Cir. 2011) (declining to decide whether discrimination in violation of

the ADA constitutes irreparable harm per se because loss of opportunity to pursuechosen profession establishes irreparable harm).

By placing Mr. Alexander in "the hole," Defendants deny him access to any

accommodations, programs and services, and physically accessible facilities, in

violation of the ADA. Defendants have placed Mr. Alexander in "the hole" because

he is unable to walk. He gets no visits, no telephone calls, and no contact with other



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inmates. He is denied any opportunity for physical exercise. Since he was last placed

in "the hole," he has had no contact with his elderly mother, who had a stroke last year

and who has been living by herself after her husband, his father, passed away.

Beyond the conditions that are to be expected for those in "the hole," thisconstitutes a denial of additional basic necessities for Plaintiffs because it has

architectural barriers that are not in compliance with ADA regulations. "The hole"

does not have grab bars, which are necessary so that Plaintiffs can support themselves

during transfer from their wheelchairs to the toilet. Mr. Alexander has fallen several

times while trying to transfer to and from the toilet. Alexander Decl. 29. The harm

Mr. Alexander faces includes emotional pain from his inability to contact his mother

or interact with other people, physical pain whenever he falls while trying to go to bed

or use the toilet, psychological symptoms that result from prolonged isolation, and the

unnecessary infliction of suffering due to his mobility impairment.

Being told that he will be punished because he is unable to walk is also an

affront to Mr. Alexander's dignity. This constitutes irreparable harm. Save Our

Summers v. Wash. State Dept. of Ecology , 132 F. Supp. 2d 896, 906 (E.D. Wash.

1999) (citing Cupulo v. Bay Area Rapid Transit , 5 F. Supp. 2d 1078, 1084 (N.D. Cal.

1997)); Sullivan v. Vallejo City Unified Sch. Dist. , 5 F. Supp. 947, 961 (E.D. Cal.

1990) (harm to ability to function as independent person constitutes irreparable

injury). By eliminating any sort of mobility assistive device, or punishing Mr.

Alexander, Defendants offer Plaintiffs the choice between one form of irreparable

harm or another.

Placing Mr. Alexander in "the hole" because of his mobility impairment isparticularly cruel because he relies upon other inmates for help with daily activities,

such as entering the shower. Alexander Decl. 13. Now, when Mr. Alexander falls,

he must pick himself back up, and other inmates are not around to help. Alexander

Decl. 29. "The hole" subjects Mr. Alexander to unnecessary pain and injury, which

constitutes irreparable injury. Harris v. Board of Supervisors , 366 F.3d 754, 758, 766



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(9th Cir. 2004). This punishment cannot be undone.

2. Notice to Plaintiffs is Necessary to Prevent Irreparable Harm.Named Plaintiff Derrick White is not currently in "the hole." In the event Mr.

White is placed in "the hole," Defendants must inform Plaintiffs' counsel so thatPlaintiffs' counsel can act promptly to protect Mr. White's rights. White has been

declassed to the general population unit before. He has experienced an inaccessible

shower in the general population units. White Decl. 15. When he was in the

general population, Mr. White has had to attempt to bathe himself using the sink in his

cell. Id. 10. Mr. White has been declassified in error multiple times. Plaintiffs'

counsel does not know how many other inmates in the Jail face the same threats as

Mr. White. In the event there are others like him, it is necessary that Plaintiffs'

counsel find out when they are placed in "the hole" as a result of their mobility

impairment, so that Plaintiffs may turn to this Court to impose relief that prevents

irreparable harm. Mr. White is afraid that he will be declassified again. It has

happened before, and he is personally familiar with the unconscionable conditions he

has to endure if he is forced to crawl in the general population unit again. When

deputies try to declassify him again, he knows he will be disciplined as he cannot give

up his wheelchair.

D. The Equities Tip Sharply in Plaintiffs' Favor.The court has a "duty... to balance the interests of all parties and weigh the

damage to each." Fernandez v. Nevada , No. 3:06-CV-00628-LRH (RAM), 2010 WL

5678693, at *5 (D. Nev. Oct. 28, 2010) (continued incarceration without the

possibility of parole and the label high risk sex offender, pending a psychologicalreview hearing, constitute irreparable harm because of due process and stigma) (citing

L.A. Mem'l Coliseum Comm'n v. Nat'l Footbal League , 634 F.2d 1197, 1203 (9th Cir.

1980)). In determining whether to grant a preliminary injunction, the court balances

"the competing claims of injury, . . . the effect on each party of the granting or

withholding of the requested relief, . . . the public consequences in employing the



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Defendants are not merely choosing between medical alternatives. Defendants'

doctor determined that Mr. Alexander should be provided a wheelchair. Id. 11.

Without providing Plaintiff a CAT Scan or MRI, Dr. Zasorin has indicated that she

disagrees, based on Mr. Alexander's ability to move his legs. Id. 14. Clearly,medical professionals within the Jail disagree and Defendants have decided to

declassify Mr. Alexander based on the presumption that the denial of a wheelchair is

the more correct decision. Plaintiffs' expert, Dr. Terry Hill, has determined that the

medical records obtained by Plaintiffs on an expedited basis present strong data that

Mr. Alexander should be provided a wheelchair. Hill Decl. 9, 15, 17.

Defendants' classification process is seriously flawed, as Defendants provide

the declassification decision with presumptive priority, even though community

doctors and jail doctors have previously ordered that Mr. Alexander receive a

wheelchair. Defendants may be intentionally disregarding Plaintiffs' disabilities. At a

minimum, Mr. Alexanders history demonstrates that there are serious classification

errors. In his case, he should not be disciplined for his failure to walk in the absence

of some independent medical exam. Defendants' failure to provide any sort of second

opinion or review when Jail doctors disagree raises serious constitutional concerns on

those facts alone. However, to punish an inmate for a refusal to get out of a

wheelchair that stems from an actual inability to walk constitutes irreparable harm that

calls for intervention by the Court immediately.

E. Temporary Restraining Order Is In the Public Interest."In exercising their sound discretion, courts of equity should pay particular

regard for the public consequences in employing the extraordinary remedy of injunction." Winter , 555 U.S. at 7. "When the reach of an injunction is narrow,

limited only to the parties, and has no impact on non-parties, the public will be at most

a neutral factor in the analysis rather than one that favor[s] [granting or] denying the

preliminary injunction." Stormans , 586 F3d 1109 at 1138-39. "If however, the impact

of an injunction reaches beyond the parties, carrying with it a potential for public



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consequences, the public interest will be relevant to whether the district court grants

the preliminary injunction." Id.

"In enacting the ADA, Congress demonstrated its view that the public has an

interest in ensuring the eradication of discrimination on the basis of disabilities." Enyart , 630 F3d at 1167 (citing 42 U.S.C. 12101(a)(9)). It is in the public interest to

protect the statutory rights of individuals with mobility impairments, particularly with

respect to ensuring that the individuals are not subject to unlawful discrimination. A

temporary restraining order would plainly serve the public interest.

F. A Temporary Restraining Order Complies with the Prison ReformLitigation Act PLRA).

The PLRA permits courts to enter an order for injunctive relief. 18 U.S.C.

3626(a)(2). This 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" Id. In compliance with the PLRA,

Plaintiffs seek relief for only one class member for an interim period until a medical

examination can be arranged, and nothing more than advance notice to counsel

regarding the status of other class members when and if they are threatened with a

denial of accommodations.



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IV. CONCLUSION.Mr. Alexander is likely to prevail on the merits of his ADA and Rehabilitation

Act claims and, if the County is not enjoined, will suffer irreparable harm as he is in

"the hole" right now for his inability to move around without a wheelchair. This

preventable human suffering outweighs any interest of the Defendants. For these

reasons, and because an injunction serves the public interest, Plaintiffs' request for a

Temporary Restraining Order should be granted and the Court should issue an Order

to Show Cause Why a Preliminary Injunction should not be granted.

Dated: May 5, 2011 Respectfully submitted,

WINSTON & STRAWN LLP

ACLU FOUNDATION OF SOUTHERNCALIFORNIA

DISABILITY RIGHTS LEGAL CENTER

DISABILITY RIGHTS CALIFORNIA

By /S/ Benjamin M. GipsonBenjamin M. GipsonAttorneys for Plaintiffs


Date post:	05-Apr-2018
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143-1.MOT.dct.Mem in Support of TRO

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