150.br.dct.pltfs reply iso tro (11!05!11)

7/31/2019 150.Br.dct.Pltfs Reply Iso Tro (11!05!11)

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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 COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

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

similarly situated,

Plaintiffs,

vs.

LOS ANGELES COUNTYSHERIFFS DEPARTMENT, a

public 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 REPLY IN SUPPORTOF EX PARTE APPLICATION FORTEMPORARY RESTRAININGORDER

Honorable Dean Pregerson

Date:Time:Court: 3

Case 2:08-cv-03515-DDP -SH Document 150 Filed 05/11/11 Page 1 of 9 Page ID #:3598


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(continued from previous page)

Peter Eliasberg (SBN: 189110)[email protected] Villagra (SBN: 177586)[email protected] Price (SBN: 264053)

[email protected]

ACLU FOUNDATION OF SOUTHERN CALIFORNIA1313 West Eighth StreetLos Angeles, CA 90017Tel: (213) 977-9500; Fax: (213) 250-3980

Stephen R. Smerek (SBN: 208343)[email protected] Gipson (SBN: 222830)

[email protected] & STRAWN LLP333 S. Grand AvenueLos Angeles, California 90071Tel: (213) 615-1700; Fax: (213) 615-1750



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PLAINTIFFS REPLY IN SUPPORT OF EX PARTE APPLICATION FOR

TEMPORARY RESTRAINING ORDER

Plaintiffs are inmates with mobility impairments who are or have been

detained in the Los Angeles County Jails. Even though Defendants have

previously determined that Terry Alexander and Derrick White need wheelchairs,

they recently punished Messrs. White and Alexander for failing to get out of their

chairs. For Mr. Alexander, the situation appeared dire. Defendants placed him in a

cell that is physically inaccessible; he had no grab bars to keep him from falling

while transferring to the toilet; he could not call or receive visits from his mother;

he had no access to recreation; and he was in solitary confinement. Immediately

upon learning of Mr. Alexanders situation and within three days of obtaining anexpert opinion that there is a substantial likelihood that Mr. Alexander does, in

fact, need a wheelchair, Plaintiffs requested that Defendants remove him from

the hole and notified them of their intent to seek interim emergency relief if

Defendants refused to stop punishing Mr. Alexander on the basis of his mobility

impairment by leaving a detailed voice mail with Defendants counsel and by

sending an e-mail.

Defendants provided no response. Instead, after Plaintiffs filed an

Application for a Temporary Restraining Order, Defendants sent Mr. Alexander to

state prison. Now, in a pleading that is two days late, Defendants assert that Mr.

Alexander can, in fact, walk without a wheelchair; that allowing him to keep his

wheelchair might influence other inmates (who can or cannot walk) to assert their

rights to a wheelchair; and that Defendants disciplined Mr. Alexander not because

of his failure to walk, but because of his failure to comply with deputy orders to

walk. According to the Defendants, this Court has no power to remedy the

injustice resulting from punishing an inmate who needs a wheelchair for his failure

to walk because such punishment contributes to the orderly operation of the jail.

Finally, they assert that Plaintiffs provided them with inadequate notice, even



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though the notice Plaintiffs provided is consistent with the requirements of the

Local Rules governing ex parte applications.

Defendants reply highlights their complete disregard for the requirements of

the Americans with Disabilities Act (ADA). They insist that providing an inmate a

wheelchair -- an accommodation that they had previously provided him with for

months pending a complete medical examination would result in delay, and that

they are entitled to punish those inmates instead for their inability to relinquish

needed accommodations. Although Mr. Alexander is now in state prison,

Plaintiffs have demonstrated irreparable injury sufficient to support an order

requiring Defendants to provide notice in advance of the next disciplinary action

taken against a class member for failing to relinquish a wheelchair. In light of Mr.Alexanders removal from the hole and transfer to state prison, Plaintiffs are no

longer asking that Defendants delay or refrain from punishing an inmate;

Plaintiffs request simply provides them with a meaningful opportunity to prevent

irreparable injury where Plaintiffs investigation reveals that such punishment

arises from an inmates inability to walk.

Finally, Defendants request for sanctions should be rejected summarily.

Defendants response is rife with inaccuracies. With regard to the timing of the

application, Defendants have no basis to support their claim that Plaintiffs knew

about Mr. Alexanders or Mr. Whites punishment months or years in advance.

With regard to the notice provided to Defense counsel, Defendants make several

false statements. With regard to Plaintiffs compliance with the local rules,

Defendants are incorrect about the permissible page limit.

I. A Temporary Restraining Order Providing for Notice toPlaintiffs Counsel is Necessary to Prevent Irreparable Harm

As demonstrated by Defendants reply, serious questions going to the

merits of Plaintiffs ADA claim are raised and the balance of hardships tips

sharply in the plaintiffs favor. Alliance for the Wild Rockies v. Cottrell, 632 F.3d



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1127, 1134-35 (9th Cir. 2011). Plaintiffs seek an order requiring Defendants to

provide 48 hours advance notice before imposing discipline on a class member for

failing to relinquish a mobility assistive device. Defendants arguments justifying

their practices are unavailing, and such practices are so harmful and unjustified,

notice to Plaintiffs counsel is the least intrusive remedy to prevent irreparable

injury to class members.

Defendants argument about the need to punish class members reveals the

discriminatory nature of Defendants inadequate classification process. They argue

that providing a complete medical exam could result in the adverse consequence of

other inmates insisting on their statutorily protected rights. This is no defense to a

claim of discrimination. Class members are qualified individuals with disabilities.The notice that Plaintiffs request extends only to those class members who face a

complete denial of access to programs and services, and solitary confinement in a

physically inaccessible cell, arising out of their failure to relinquish their

wheelchairs. Plaintiffs are likely to succeed on the merits of their claim that such

practices violate the ADA, and notice to Plaintiffs counsel is necessary to prevent

irreparable harm.

The equities tip sharply in Plaintiffs favor. Although Defendants may assert

that class members are able to ambulate, as Defendants asserted about Mr.

Alexander, ability to walk does not equal ability to survive without wheelchair,see

Alexander Dec. 13, and does not merit placement in a cell that is not ADA-

accessible. To operate under the presumption that inmates who claim an inability

to walk should receive a mobility assistive device until that claim can be medically

substantiated, especially where Defendants have already determined that the

inmate needs a wheelchair, would create a negligible burden on Defendants. For

Messrs. White and Alexander, Defendants at some point determined that they

needed a wheelchair. Defendants cannot contest that claim. Plaintiffs medical

records indicate it, and the fact that Defendants gave Messrs. White and Alexander



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wheelchairs supports it. Notice to Plaintiffs counsel before Defendants place a

class member in the hole will not delay the imposition of punishment where it is

justified. It will, however, allow Plaintiffs to investigate a situation, where the

detainee has no access to a telephone, to determine whether Plaintiffs should seek

interim relief for an inmate who is unable to get out of his wheelchair. Plaintiffs

will ask the Court to intervene to preserve the status quo only where necessary. It

is in the public interest to permit Plaintiffs counsel to protect the statutory rights

of class members, and this is only possible if the Court grants the notice provision

requested by Plaintiffs.

II. Defendants Reply is UntimelyPursuant to this courts policies and procedures, Defendants reply to

Plaintiffs ex parte application was due within 24 hours. See Hon. Dean D.

Pregerson - FAQs About Judges Procedures and Schedules, available at (last visited May 11, 2011) (The written opposition

to the ex parte application must be submitted within 24 hours for consideration by

the Court.). Plaintiffs filed their Application for a TRO on May 5, 2011. Pls.

App. For TRO, Dkt. 132-1. Defendants reply was due May 6, 2011. Defendants

did not file a reply until May 10, 2011. Defs. Opp. to TRO, Dkt. 144. Defendants

reply should be struck as untimely.

III. Defendants Claims in Support of Sanctions Are Misleading andInaccurate

Defendants response is also rife with inaccuracies. Defendants imply that

Plaintiffs knew about Mr. Alexanders situation for months. Defendants have no

basis for this assertion and it is, in fact, false.

Plaintiffs counsel first met with Mr. Alexander April 25, 2011, eleven days

after he was first placed in the hole. Defs Supporting Ex. In Support of Opp. to

App. For TRO, at 22; Alexander Decl. 29. Plaintiffs found that doctors in the



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community and three separate state prison facilities determined that Mr. Alexander

needs a wheelchair. Hill Decl. 10-11. By May 4, 2011, Plaintiffs were able to

obtain an expert opinion that If he is moved into general population in an LASD

facility and is forced to live without any accommodations, he would be at constant

risk of injuring himself from falls or other accidents that could increase his

disability and permanently injure him. Hill Decl. 19. Plaintiffs filed an

Application for a Temporary Restraining Order the following day. Pls. App. For

TRO, Dkt. 132-1. Defendants assertion that Plaintiffs should have brought this

application years ago, Defs. Opp. to App. For TRO, Dkt. 144 at 12, implies that

Plaintiffs knew of Mr. Alexanders situation long before it existed. That is either a

guess or a lie, but it is clearly false.Plaintiffs did not act in bad faith in their timing of the application for a TRO.

Plaintiffs attempted to reach an agreement with Defendants, and at no time did

Defendants indicate that they were about to send Mr. Alexander to state prison.

Price Decl. 6. Additionally, if Defendants had responded to the TRO in a timely

fashion, by May 6, 2011, Defendants would have no complaints about their

weekend plans. Defendants timely response would have permitted the Court to

determine Mr. Alexanders claim of irreparable injury immediately, and he might

have been able to get a call or visit from his mother before his move to state prison

Defendants assert that Plaintiffs motion is so untimely that Mr. Alexander is no

longer in the county jails. Plaintiffs have no control over when Mr. Alexander is

transferred from County Jail to state prison. And if Plaintiffs can have notice

before Defendants discipline the next class member, Plaintiffs can act more

quickly if Plaintiffs investigation reveals that irreparable harm will result from an

erroneous decision to punish.

Defendants argument that Plaintiffs never mentioned any purported dire

situation about inmates being improperly subjected to discipline actually shows

Plaintiffs restraint. Although previously, Plaintiffs did not believe that the



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situation warranted bring a TRO application, when Mr. Alexanders situation

emerged, it warranted quick action.

In his declaration Mr. Clark makes several inaccurate statements. First, Mr.

Clark states that the first notice he received from Plaintiffs about Mr. Alexander

and the possibility of a TRO was on May 4, 2011, Clark Decl. 2. In fact, on May

3, 2011Plaintiffs counsel called Mr. Clark three times, left a message, and sent an

email to him, all before 4:00 p.m. Price Decl. 2. After a discussion on May 4,

2011, Plaintiffs counsel emailed Mr. Clark less than an hour after their

conversation, indicating her desire to speak again before Plaintiffs filed the TRO.

Price Decl. 4 and Exh A to Price Decl. In disregard of the truth, Mr. Clark

testifies that after the discussion, without ever hearing again from Ms. Price, henext received email notification of the electronic filing of the application for a

TRO. Clark Decl. 2-3. Mr. Clark also states that Plaintiffs counsel did not

indicate that the application would be filed on May 5, 2011. Clark Decl. 3. This

statement is wrong and contradicts his own testimony about the notice he received

from Ms. Price on May 4,see Clark Decl. 2, Price Decl. 2-3.

Defendants also assert that Plaintiffs Memorandum of Points and

Authorities violates the page limitations imposed by this Court. Reply Brief at 2

(the 22-page Memorandum of Points and Authorities violates the page limitations

imposed by this Courts Local Rules.). At best, this statement arises from a

misunderstanding of the rules. Plaintiffs did not exceed the 25 page limit. L.R. 11-

6.

IV. CONCLUSIONPlaintiffs plainly need the limited relief they now seek; notice to Plaintiffs

counsel is the only way to ensure that class members rights are immediately

protected when a situation like that of Mr. Alexanders occurs once again. This

modest relief will not cause Defendants any undue burden. Plaintiffs respectfully

request that the Court reject Defendants request for sanctions, and GRANT



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Plaintiffs request for notice to have the opportunity to prevent irreparable harm to

class members if Defendants practices continue.

DATED: May 11, 2011 ACLU FOUNDATION OF SOUTHERN

CALIFORNIADISABILITY RIGHTS LEGAL CENTER

DISABILITY RIGHTS CALIFORNIA

WINSTON & STRAWN, LLP

By: /s/ Jessica G. PriceJESSICA G. PRICE

Attorney for Plaintiffs


150.br.dct.pltfs reply iso tro (11!05!11)

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