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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
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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
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