P. G. v. City of Long Beach, et al
Filing
72
Order DENYING Plaintiff's Motion for Preliminary Injunction (Dkt. 63 ) by Judge Dale S. Fischer. See order for specifics. (lom)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
P.G., a minor, by and through
her Guardian Ad Litem STACY
MALLORY,
Plaintiff,
CV 17-8663 DSF (SKx)
Order DENYING Plaintiff’s
Motion for Preliminary
Injunction (Dkt. 63)
v.
CITY OF LONG BEACH,
LONG BEACH UNIFIED
SCHOOL DISTRICT, et al.,
Defendants.
Plaintiff P.G. is a high school student suffering from LimbGirdle Muscular Dystrophy. Plaintiff moves to preliminarily
enjoin Defendant Long Beach Unified School District to comply
with Plaintiff’s individual educational plan (IEP). Dkt. 63 (Mot.).
Defendant opposes the motion. Dkt. 66 (Opp’n). The motion is
DENIED.
“A preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 24 (2008). “A [party] 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.” Id. at 20. Although the
moving party must make a showing on each factor, the Ninth
Circuit employs a “version of the sliding scale” approach where “a
stronger showing of one element may offset a weaker showing of
another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131 (9th Cir. 2011). Specifically, the Ninth Circuit “has adopted
and applied a version of the sliding scale approach under which a
preliminary injunction could issue where the likelihood of success
is such that serious questions going to the merits were raised and
the balance of hardships tips sharply in [plaintiff’s] favor.” Id. at
1131 (citing Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.
2008)).
Plaintiff fails to demonstrate she is likely to be irreparably
harmed absent an injunction. See Winter, 555 U.S. at 22 (“Our
frequently reiterated standard requires plaintiffs seeking
preliminary relief to demonstrate that irreparable injury is likely
in the absence of an injunction.”); see also Herb Reed Enters., LLC
v. Fla. Entm’t Mgmt., 736 F.3d 1239, 1249-50 (9th Cir. 2013)
(applying the Winter standard for irreparable harm).
Plaintiff first argues that Defendant’s alleged violation of the
ADA constitutes per se irreparable harm. See Mot. at 12 (quoting
Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d
814, 827 (9th Cir. 2001) (“[W]here a Defendant has violated a civil
rights statute, we will presume that the plaintiff has suffered
irreparable injury from the fact of the defendant’s violation.”); see
also Mot. at 15 (citing Stone v. City & County of San Francisco,
968 F.2d 850, 858 (9th Cir. 1992), cert. denied 506 U.S. 1081).
The Court finds that such presumption of irreparable harm
conflicts with the Supreme Court’s holding in Winter. See Enyart
v. Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1165
(9th Cir. 2011) (declining to reach issue of whether an ADA
violation constitutes per se irreparable harm, after the district
court found that to the extent prior Ninth Circuit law concluded
that irreparable harm need not be shown in certain statutory
2
contexts, such law was in conflict with Winter); see also Doe v.
Samuel Merritt Univ., 921 F. Supp. 2d 958, 963 (N.D. Cal. 2013)
(agreeing that “a presumption of irreparable harm conflicts with
the Supreme Court’s decision in Winter”).
Plaintiff further asserts that she will be irreparably harmed by
Defendant’s failure to fully comply with her IEP. Plaintiff’s only
proffered evidence is a declaration by her mother Stacy Mallory. 1
Mallory states that between January and March 2019, Plaintiff
has missed six days of school, that Plaintiff spent a full day doing
work in her guidance counselor’s office instead of going to class,
that Plaintiff was not provided with an accessible desk during one
class period, and that there is a possibility the school’s elevator
will not work in the future. Dkt. 63-1 (Mallory Decl.), ¶ 10.
Mallory also claims Plaintiff’s “absences, due solely because of the
lack of an aide, jeopardizes [sic] Ms. P.G.’s graduation.” 2 Id. ¶ 12.
The Memorandum of Points and Authorities and Mallory’s Declaration state
that P.G. is sixteen years old. Mallory Decl. ¶ 4. This is misleading, as it
suggests she is a minor and must be provided with at least an additional two
years of education. As counsel confirmed at a recent hearing, she is actually
eighteen years old. See also Dkt. 55, Third Am. Compl., ¶ 3 (“[Plaintiff’s]
birth date is October 10, 2000.”). The error is corrected in Mallory’s May 3
Further Declaration. P.G. is now an adult and is no longer to be represented
by her guardian. It is not clear why P.G. herself did not file a declaration.
Such a declaration would have been made on personal knowledge and would
have been significantly more persuasive.
1
Defendant raises several evidentiary objections to Plaintiff’s evidence. See
Dkt. 66-3 (Objection to Plaintiff’s Evidence). But “the rules of evidence do not
apply strictly to preliminary injunction proceedings.” Herb Reed Enters.,
LLC v Fla. Entm’t Mgmt., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013) (citation
omitted); see also Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363
(9th Cir. 1988) (“It was within the discretion of the district court to accept . . .
hearsay for purpose of deciding whether to issue the preliminary
injunction.”). The Court will therefore consider Mallory’s declaration for the
limited purpose of deciding this motion.
2
3
Defendant challenges these claims, offering internal records
stating that Plaintiff missed only two days of class during the
period of time covered in Mallory’s declaration, and only a single
day due to the lack of an aide. Dkt. 66-2 (Whitaker Decl.), ¶¶ 3-4,
Ex. A. Also according to Danita Whitaker, a counselor at
Plaintiff’s high school, Plaintiff chose to work in the office rather
than attend class with a substitute aide. Id. ¶ 5.
Defendant also presents evidence that Plaintiff is scheduled to
graduate on time in June 2019, and that Plaintiff is an A-G
Student, meaning she has completed the necessary requirements
for admission into an undergraduate program within the
California State University and University of California systems.
Dkt. 66-2 (Whitaker Decl.), ¶¶ 7-8. Further, Defendant provides
that it has followed (and is following) Plaintiff’s IEP, and is
providing a one-on-one aide to assist her, has backups in case her
usual aide is unavailable, and has ensured the classrooms in
which she has class are accessible. Id. at ¶¶ 3-6. Plaintiff did not
file a reply, or otherwise contest any of Defendant’s evidence.
Plaintiff’s assertion3 that her graduation is threatened is purely
speculative, and a “[s]peculative injury cannot be the basis for a
finding of irreparable harm.” In re Excel Innovations, Inc., 502
F.3d 1086, 1098 (9th Cir. 2007) (citing Goldie’s Bookstore, Inc. v.
Superior Court, 739 F.2d 466, 472 (9th Cir. 1984)). Plaintiff is on
track to graduate on time and is eligible for college admission.
Speculation by her mother that there is some possibility P.G. will
not graduate on time is not a sufficient basis to find irreparable
harm is likely to occur absent an injunction. Plaintiff has not
shown that missing a single day of school due to the lack of an
aide constitutes irreparable harm. In any event, given
As previously noted, it is not clear what P.G.’s position actually is, as the
only information provided on her behalf has come from Mallory.
3
4
Defendant’s uncontested declaration that multiple backup aides
are available, the Court finds it extremely unlikely that
irreparable harm will occur before her graduation in June.
Indeed, in her “Further Declaration,” Mallory recounts an
instance after the filing of this motion where P.G.’s regular aide
was unavailable and two other aides were substituted for that
aide. This illustrates that P.G. is getting the assistance required
by the IEP.4
Plaintiff makes several other confusing allegations concerning
irreparable harm. See Mot. at 13-14.5 These broad statements
about the law fail to establish specifically how Plaintiff is likely to
be irreparably harmed without a preliminary injunction.
Finally, the Court notes that this motion was scheduled for
hearing approximately a year-and-a-half after this litigation
commenced. Compare Dkt. 1 (Compl.) with Mot. at 1. A
“[p]laintiff’s long delay before seeking a preliminary injunction
implies a lack of urgency and irreparable harm.” Garcia v. Google,
Inc., 786 F.3d 733 (9th Cir. 2015) (quoting Oakland Tribune, Inc.,
v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985)).
Plaintiff now seeks a preliminary injunction only 38 days before
her graduation. Plaintiff makes no argument as to why she
waited so long to bring this motion.
The Court cannot conclude that Plaintiff is likely to suffer
irreparable harm absent an injunction. On this ground alone,
That Mallory is “frustrat[ed] by having to deal with issues relating to [her]
daughter’s education on a daily basis,” (Further Decl at ¶12), appears to be
hyperbole (there is no indication this occurs on a daily basis), and in any
event is not grounds for a preliminary injunction.
4
Because Plaintiff’s California claims have been dismissed, see Dkt. 60,
Plaintiff’s arguments as to California law are lack merit.
5
5
Plaintiff’s motion for preliminary injunction must be denied.
Therefore, the Court need not address the other Winter factors.
Plaintiff’s motion for preliminary injunction is DENIED.
IT IS SO ORDERED.
Date: May 6, 2019
___________________________
Dale S. Fischer
United States District Judge
6
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