-SH Peter Johnson et al v. Los Angeles County Sheriff's Department et al

Filing 151

ORDER DENYING Application For Temporary Restraining Order 143 by Judge Dean D. Pregerson. Having failed to demonstrate that he is disabled, Alexander cannot show a likelihood of success on his ADA or Rehabilitation Act claims or a danger of irreparable harm stemming from violations of those statutes. Accordingly, the Application for a Temporary Restraining Order is DENIED. Defendants request for sanctions is DENIED. (sch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PETER JOHNSON, DONALD
PETERSON and MICHAEL
CURFMAN, on behalf of
themselves and all others
similarly situated,

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Plaintiffs,

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v.
LOS ANGELES COUNTY SHERIFF'S
DEPARTMENT, a public entity;
LEROY BACA, as Sheriff of
the County of Los Angeles
and COUNTY OF LOS ANGELES, a
public entity; MICHAEL D.
ANTONOVICH, YVONNE B. BURKE,
DON KNABE, GLORIA MOLINA,
ZEV YAROSLAVSKY as
Supervisors of the County of
Los Angeles,
Defendants.
___________________________

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Case No. CV 08-03515 DDP (SHx)
ORDER DENYING APPLICATION FOR
TEMPORARY RESTRAINING ORDER
[Application for Temporary
Restraining Order filed on 5/5/11
- docket number 143]

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I.

Background
Presently before the court is plaintiff Terry Alexander

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(“Alexander”)’s Application for a Temporary Restraining Order

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(“TRO”).

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in the Los Angeles Jail.

At the time he filed for TRO, Alexander was incarcerated
(Declaration of Terry Alexander ¶¶ 2-3).

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Alexander claims to have been confined to a wheelchair since 2003.

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(Alexander Dec. ¶ 5).

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Department repeatedly attempted to “declassify” him (as disabled)

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and remove him from his wheelchair.

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Alexander refused to give up his wheelchair, and was disciplined

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with a restricted diet and solitary confinement.

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¶¶ 26, 28).

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Alexander alleges that Los Angeles Sheriff’s

(Alexander Dec. ¶¶ 19, 21-22).

(Alexander Dec.

At the time he filed for a TRO, Alexander had been in solitary
confinement for approximately three weeks.

(Alexander Dec. ¶ 29).

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Alexander alleges that defendants are discriminating against him on

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the basis of his disability in violation of the Americans with

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Disabilities Act (“ADA”), 42 U.S.C. § 12131, and Section 504 of the

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Rehabilitation Act, 28 U.S.C. § 794(a).

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Restraining Order at 10).

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immediate release from solitary confinement and forty-eight hours

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pre-disciplinary notice to Plaintiffs’ counsel with respect to all

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Plaintiffs.

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II.

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(Application for Temporary

Alexander now seeks a TRO ordering his

Discussion
A temporary restraining order is meant to be used only in

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extraordinary circumstances.

To establish entitlement to a TRO,

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the requesting party must show (1) that he is likely to succeed on

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the merits, (2) that he is likely to suffer irreparable harm in the

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absence of preliminary relief, (3) that the balance of equities

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tips in his favor, and (4) that an injunction is in the public

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interest.

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374 (2008).

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party (1) shows a combination of probable success on the merits and

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the possibility of irreparable harm, or (2)raises serious questions

Winter v. Natural Res. Defense Counsel, 129 S.Ct. 365,
In the Ninth Circuit, a TRO may be warranted where a

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and the balance of hardships tips in favor of a TRO.

See Arcamuzi

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v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th

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Cir. 1987).

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sliding scale in which the required degree of irreparable harm

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increases as the probability of success decreases.”

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both formulations, however, the party must demonstrate a “fair

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chance of success on the merits” and a “significant threat of

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irreparable injury.”1

“These two formulations represent two points on a

Id.

Under

Id.

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As an initial matter, Plaintiff Alexander is no longer in

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Defendants’ custody, thus mooting his application for relief.2

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That issue notwithstanding, a TRO is not warranted because

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Alexander cannot demonstrate the requisite likelihood of success on

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the merits or risk of irreparable harm.

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evidence that he did at some point require the use of a wheelchair.

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(Declaration of Terry Hill, M.D. ¶ 10)3.

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evidence in the record, however, indicates that Alexander is

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capable of walking.

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highly qualified physician tracked Alexander’s medical condition

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for six months and conducted blood tests, neurological

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examinations, and multiple spinal taps before concluding that

Alexander has provided

Other, more recent

(Declaration of Nina Zasorin, M.D. ¶ 8).

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Even under the “serious interests” sliding scale test, a
plaintiff must satisfy the four Winter factors and demonstrate
“that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
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It appears that Alexander was transferred to state custody
on May 9, 2011, four days after filing his application for a TRO.
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Alexander has not attached any of the medical records upon
which Dr. Terry Hill’s opinion are purportedly based. It does not
appear to the court that Dr. Hill reviewed any records generated
during Alexander’s most recent incarceration.
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Alexander does not have a mobility impairment.4

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9, 10, 12).

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III.

(Zasorin Dec. ¶¶

Conclusion

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Having failed to demonstrate that he is disabled, Alexander

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cannot show a likelihood of success on his ADA or Rehabilitation

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Act claims or a danger of irreparable harm stemming from violations

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of those statutes.

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Restraining Order is DENIED.

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DENIED.

Accordingly, the Application for a Temporary
Defendants’ request for sanctions is

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IT IS SO ORDERED.

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Dated: May 12, 2011
DEAN D. PREGERSON
United States District Judge

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Alexander’s application for a TRO refers to threats that
named plaintiff Derrick White is also in danger of being
disciplined for refusal to leave his wheelchair. As with plaintiff
Alexander, however, physical examinations support the conclusion
that plaintiff White is not paralyzed or mobility impaired (Zasorin
Dec. ¶¶ 13-15).
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