D.H. et al v. Poway Unified School District et al

Filing 68

ORDER granting 59 Motion for Preliminary Injunction. The Court Orders the District to provide D.H. with CART during classes at school. Signed by Judge M. James Lorenz on 12/19/2013. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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13 D.H., by and through her Guardian Ad
Litem, KEVIN HARRINGTON,
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Plaintiff,
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v.
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POWAY UNIFIED SCHOOL DISTRICT,
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Defendant.
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Civil No. 09-cv-2621-L(NLS)
ORDER GRANTING PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTION [DOC. 59]

On August 3, 2013, the Ninth Circuit reversed this Court’s decision and remanded this

20 case for further proceedings. [Doc. 57.] On September 23, 2013, the Ninth Circuit denied
21 petitions for rehearing and rehearing en banc. [Doc. 54.] On October 21, 2013, the Mandate of
22 the Ninth Circuit was spread. [Doc. 56.] On October 22, 2013, Plaintiff D.H. filed an ex parte
23 motion for a temporary restraining order. [Doc. 59.] The Court will evaluate this ex parte
24 motion as a motion for preliminary injunction. (See Court Order [Doc. 60].)
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This Court finds this motion suitable for determination on the papers submitted and

26 without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS
27 D.H.’s motion for a preliminary injunction.
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09cv2621

1 I.

BACKGROUND1

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D.H. is a deaf student eligible for special education who is attending school in the Poway

3 Unified School District. She has moderate-to-profound hearing loss, and a cochlear implant in
4 her right ear and uses a hearing aid in her left ear. The cochlear implant is an electronic device,
5 part of which is surgically implanted, that stimulates the auditory nerve to give D.H. a sense of
6 sound. She uses speech and listening as her primary mode of communication. Though she
7 attends school in a general-education classroom with non-disabled students, D.H. does not hear
8 everything spoken in class. Consequently, she relies on visual strategies, such as lip reading and
9 observation of the actions of peers, as well as educated guesses to fill in for sentences that she
10 does not hear. D.H. is not always aware of when she has not heard something. In addition, she
11 has some difficulty communicating in that she sometimes mumbles, speaks very softly, and has
12 difficulty producing certain sounds. Nevertheless, D.H. has earned excellent grades and is an
13 active participant in class and social life at school.
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At the April 20, 2009 Individualized Education Program (“IEP”) meeting, the District

15 offered D.H. the following: general education placement with specialized academic instruction /
16 consultation with the resource specialist; deaf / hard of hearing (“DDH”) services; audiological
17 services; speech language services; and extended school-year services. The assistive technology
18 devices included, but were not limited to, an FM amplification system for the classroom and
19 school assemblies, a pass-around microphone, and close-captioning access during class videos.
20 The communication strategies, accommodations, and modifications called for in the IEP
21 included, but were not limited to, written directions, access to copies of peers’ notes, consistent
22 home / school communication, access to quiet work environments, classroom doors closed to
23 eliminate noise, teachers repeating / rephrasing other students’ responses, extra time for some
24 assignments, and preferential seating. In addition to these accommodations, D.H.’s parents
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The relevant facts are undisputed. Thus, this section primarily summarizes the factual
background presented in the Court’s March 14, 2011 Order denying D.H.’s motion for partial
28 summary judgment as well as the OAH’s October 28, 2009 Decision.
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1 requested Computer Assisted Realtime Captioning (“CART”2), a real-time transcription service
2 that displays words on a computer screen as they are spoken. The IEP denied the request as
3 unnecessary to provide D.H. with a free appropriate public education (“FAPE”).
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On May 28, 2009, D.H. filed a due-process-hearing request under the IDEA. The only

5 issue raised was the District’s failure to offer CART services. Prior to the hearing, the District
6 offered to give D.H. transcription services similar to CART, although the speech would be
7 summarized rather than transcribed word for word. The service would have been provided on
8 the condition that D.H.’s parents consent to it as a part of the IEP. On September 14, 2009, the
9 District filed its own due-process-hearing request, seeking a declaration that the August 10, 2009
10 offer of transcription services provided D.H. with a FAPE.
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On October 28, 2009, the administrative law judge (“ALJ”) found that the April 20, 2009

12 IEP in its original form provided D.H. with a FAPE and that CART services were not required.
13 Thereafter, D.H. appealed that decision to this Court. In addition to seeking reversal of the
14 ALJ’s decision, D.H. also asserts claims for violations of § 504 of the Rehabilitation Act and
15 violations of the Americans with Disabilities Act (“ADA”).
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On April 9, 2010, D.H. moved for partial summary judgment as to her third claim,

17 appealing the ALJ’s decision. The District opposed. Ultimately, the Court denied D.H.’s
18 motion and affirmed the ALJ’s decision, concluding that “the April 20, 2009 IEP complied with
19 the IDEA mandate of a free appropriate public education.” (March 14, 2011 Order 10:4–9.)
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Then, the parties cross-moved for summary judgment. In their cross-motions, both

21 parties addressed D.H.’s claim alleging violations of the ADA. D.H. also requested that the
22 Court “revisit its prior denial of summary judgment under IDEA.” (Def.’s Mot. 6:19–20 [Doc.
23 36].) Both motions were opposed.3 On June 12, 2012, the Court granted the District’s motion
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A quick internet search shows that the acronym “CART” also stands for
“Communication Access Real-Time Translation” or “Computer Assisted Realtime
26 Transcription.” All of these services appear to be identical.
Though both motions were opposed, the District did not file a separate opposition to
D.H.’s motion but rather requested that the Court take judicial notice of its summary-judgment
28 motion as its opposition to D.H.’s motion. The Court granted the District’s request.
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1 for summary judgment and denied D.H.’s cross-motion for summary judgment. (June 6, 2012
2 Order [Doc. 46].) The Court essentially held that D.H.’s ADA claim failed on the merits for the
3 same reasons that her IDEA claim failed. (Id. 7.) D.H. successfully appealed this case to the
4 Ninth Circuit. K.M. ex rel. bright v. Tustin Unified School Dist., 725 F.3d 1088 (9th Cir. 2013.)
5 In reversing this Court’s holding, the Ninth Circuit explained that “the success or failure of a
6 student’s IDEA claim [does not dictate], as a matter of law, the success or failure of her Title II
7 claim.” K.M., 725 F.3d at 1101.
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D.H. is now in her last year of high school. (Decl. D.H. [Doc. 55-2] ¶ 1.) She has now

9 filed a motion for preliminary injunction, which the District opposes. D.H. seeks injunctive
10 relief in the form of an order “compelling Poway to provide her with CART for classes at
11 school.” (Mot. Prelim. Inj. [Doc. 59] 26.)
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13 II.

LEGAL STANDARD

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“A preliminary injunction is an extraordinary remedy” and is “never awarded as of right.”

15 Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 24 (2008) (citing Munaf v.
16 Geren, 553 U.S. 674, 689–90 (2008)). “A plaintiff seeking a preliminary injunction must
17 establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in
18 the absence of preliminary relief, that the balance of equities tips in his favor, and that an
19 injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc. 555 U.S.
20 7, 20 (2008).
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22 III.

DISCUSSION

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A.

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Generally, courts may not consider material outside the complaint when ruling on a

Judicial Notice

25 motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19
26 (9th Cir. 1990). However, a court may take judicial notice of “matters of public record.” Lee v.
27 City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). It may also consider material properly
28 subject to judicial notice without converting the motion into one for summary judgment. Barron
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1 v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Both parties request judicial notice for certain
2 documents, which all appear to be matters of public record. (Docs. 62-1, 63-1.) Neither party
3 opposes. Accordingly, the Court GRANTS the parties’ requests.
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B.

D.H. Has Shown a Likelihood of Success on the Merits of Her ADA Effective
Communications Regulation Claim

Public schools must comply with the ADA. K.M. 725 F.3d 1097. Therefore, under the

8 ADA effective communications regulation, public schools must “take appropriate steps to
9 ensure that communications with applicants, participants, members of the public, and
10 companions with disabilities are as effective as communications with others.” 28 C.F.R. §
11 35.160(a)(1). The regulations further provide, in relevant part, that:
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(b)(1) A public entity shall furnish appropriate auxiliary aids and services where
necessary to afford individuals with disabilities, including applicants, participants,
companions, and members of the public, an equal opportunity to participate in, and
enjoy the benefits of, a service, program, or activity of a public entity.
(b)(2) The type of auxiliary aid or service necessary to ensure effective
communication will vary in accordance with the method of communication used by
the individual; the nature, length, and complexity of the communication involved; and
the context in which the communication is taking place. In determining what types of
auxiliary aids and services are necessary, a public entity shall give primary
consideration to the requests of individuals with disabilities. In order to be effective,
auxiliary aids and services must be provided in accessible formats, in a timely manner,
and in such a way as to protect the privacy and independence of the individual with
a disability.
Id. (emphasis added).
A public entity is not required “to take any action that it can demonstrate would result in a

23 fundamental alteration in the nature of a service, program, or activity or in undue financial and
24 administrative burdens.” 28 C.F.R. § 35.164.
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1.

D.H.’s Trouble Hearing During Class

Hearing what is said at school is still “very difficult and uncomfortable” for D.H.. (Decl.

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1 D.H. ¶ 2.) In fact, even with concentration and focus, D.H. can only hear “some of what is
2 said.” (Id.) D.H. struggles even more when trying to follow class discussions with multiple
3 people or in large classes, and misses “much of what is said” in these situations. (Id.) D.H.
4 “frequently come[s] home from school with headaches” due to the amount of strain listening in
5 class requires. (Id.) She is struggling to hear what is said in all of here current classes. (Id. ¶¶
6 3, 4.) The District does not dispute that D.H. is still having these problems.
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Instead, the District suggests that “[i]n response to Plaintiff’s request the District

8 determined based on the input from Plaintiff’s teachers, services providers, parents, and
9 assessments, that CART was not necessary because there was another effective means of
10 communication available.” (Opp’n 6.) Essentially, the District claims that it has provided other
11 effective means of communication for D.H., and has thus satisfied its obligations under 28
12 C.F.R. § 35.160.
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2.

D.H. Can Likely Show That The District Has Not Met Its Obligations
Under 28 C.F.R. § 35.160.

The District points out that “the District offered Plaintiff meaning for meaning

17 transcription using either Typewell or C-Print methodologies,” both of which “provide real time
18 meaning for meaning transcription.” (Opp’n 6.) The District even contends that these
19 methodologies “provide[] a more complete picture of what occurs in the classroom.” (Id. 7.) In
20 addition, “the District provided Plaintiff with additional supplementary aids, assistive technology
21 devices, and communication strategies.” (Id.) These aids and devices include, but are not
22 limited to, “an FM amplification system for classroom and school assemblies, a pass-around
23 microphone, and close captioned access during class videos.” (Id.) In addition, the
24 communication strategies included “written directions, access to a quiet work environment,
25 [closing the] classroom door [] to eliminate noise, teachers repeating/rephrasing other student’s
26 responses, extra timed [sic] for time [sic] assignments and preferential seating.” (Id.) The
27 District’s position is unsupported by the record.
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Although the District may have provided all of the accommodations listed above, they do
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1 not “ensure that communications [with D.H.] are as effective as communications with others.”
2 28 C.F.R. § 35.160(a)(1). As explained above, despite these alleged accommodations, D.H. is
3 still having trouble hearing in class. (Decl. D.H. ¶¶ 2, 3, 4.) Moreover, the meaning-for4 meaning transcription devices, which the District laud as “more complete” and effective, are so
5 confusing to D.H. that she would rather have no transcription at all then have to use these
6 alternatives. (Id. ¶ 8.) Such is not the case with CART, which D.H. says makes it “very easy for
7 [her] to find exactly what [she] missed and pick right back up with what is being said.” (Id. ¶ 6.)
8 With CART, “hearing is not difficult or uncomfortable” for D.H. and she does not have to
9 “concentrate intensely and strain.” (Id. ¶ 7.) D.H. does not get headaches when she is provided
10 with CART. (Id.) In addition, the District fails to present any evidence that they gave D.H.’s
11 requests for CART “primary consideration” as required by 28 C.F.R. § 35.160(b)(2).
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Moreover, these accommodations are not always provided to D.H. (Decl. D.H., Ex. 1, ¶

13 11.) For instance, videos and clips are not always captioned which prevents D.H. from
14 understanding what is happening in class. (Id.) The FM system “makes crackling and white
15 noise sounds and other noises that are very distracting” and the pass-around microphone is not
16 always used. (Id.) Also, teachers do not always repeat or rephrase, and when they do, it is not
17 always in a way that allows D.H. to understand. (Id.)
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Further, the District suggests that D.H. has provided no evidence “that the District denied

19 her equal and effective communication under the ADA” because she could “cite to no examples
20 of situation wherein her concerns regarding her disability were not addressed.” (Id. 7.) In
21 support of this argument, the District cites D.H.’s August 23, 2011 deposition. However, the
22 deposition does not show what The District says it does. Instead, the cited portion of the
23 deposition demonstrates that during her 7th grade year in school, D.H. did not believe that there
24 were “any reasons why [she] couldn’t voice [her] complaints or concerns to any of [her] teachers
25 and administrators.” (August 23, 2011 Decl. D.H. [Doc. 38] 38:13-24.) It also shows that D.H.
26 did not complain to teachers regarding her trouble hearing due to feelings of humiliation as well
27 as her feeling that she could not make the complaints known to her teachers. (Id. 39:1-5.) This
28 evidence does not support the District’s claim that “Plaintiff could cite to no examples of
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1 situations wherein her concerns regarding her disability were not addressed.” (Opp’n 7.) Quite
2 to the contrary, the crux of Plaintiff’s entire lawsuit and pending motion is that her concerns
3 regarding her disability have not been addressed continuously for years.
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The District also argues that D.H.’s excellent grades and participation in school activities

5 evidence that it has provided and continues to provide effective communication under the ADA.
6 (Id. 7.) D.H.’s good grades and participation do not absolve the District from its responsibilities
7 under the ADA. While it is undisputed that D.H. is doing well in school, the District fails to
8 explain how this shows that it complies with the ADA effective communication regulation in
9 light of D.H.’s ongoing difficulties. These difficulties, which result in both physical and
10 psychological pain, tend to show that the District does not communicate with D.H. in a manner
11 “as effective as [it] communicat[es] with others.” 28 C.F.R. § 35.160(a)(1).
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In light of D.H.’s continued difficulties to hear in class and the inconsistent and

13 inadequate accommodations the District has provided, the Court finds that D.H. is likely to
14 establish that the District has violated the ADA’s effective communications regulation.
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C.

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“The concept of irreparable harm, unfortunately, ‘does not lend itself to definition.”

D.H. is Likely to Suffer Irreparable Harm

18 Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001)(quoting
19 Wisconsin Gas Co. V. Federal Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985.)
20 The Fifth Circuit defines irreparable injury as an injury “for which compensatory damages are
21 unsuitable.” Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir. 1992). The
22 Seventh Circuit explained that “[o]nly harm that the district court cannot remedy following a
23 final determination on the merits may constitute irreparable harm.” Am. Hosp. Ass’n v. Harris,
24 625 F.2d 1328, 1331 (7th Cir. 1998). The Tenth Circuit has combined these definitions, and
25 observed that “irreparable harm is often suffered when the injury can[not] be adequately atoned
26 for in money, or when the district court cannot remedy [the injury] following a final decision on
27 the merits.” Prairie Band, 253 F.3d at 1250. In addition, the Ninth Circuit has held that
28 immediate emotional and psychological injury “cannot be adequately compensated for by a
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1 monetary award after trial.” Chalk v. U.S. Dist. Court Cent. Dist. California, 840 F.2d 701, 710
2 (1988).
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D.H. argues that she suffers irreparable harm “because she suffers physically and

4 mentally without receiving CART.” (Mot. Prelim. Inj. 21.) She claims that money cannot
5 compensate her for her alleged injuries and cannot give her back her senior year in high school.
6 (Id.) According to D.H., the only meaningful remedy that exists for her is an injunction, as she
7 is in her last year of high school now. (Id. 21-22.) The Court agrees with D.H..
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Like the plaintiff in Chalk, D.H. is suffering from injuries that “cannot be adequately

9 compensated for by a monetary award after trial.” Chalk, 840 F.2d at 710. Moreover, like the
10 plaintiff in Chalk, the very nature of D.H.’s claim is extremely time sensitive as D.H. has only
11 one year left in high school. Id. “A delay, even if only a few months...represents precious,
12 productive time irretrievably lost to [D.H.].” Id. The District does not directly challenge D.H.’s
13 claims of irreparable harm, but instead insists that D.H. has failed to demonstrate “immediate
14 threatened harm,” citing Caribbean Marine Services Co., Inc. V. Baldridge, 844 F.2d 668, 674
15 (9th Cir. 1988). The District is wrong.
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The District seems to believe that D.H. is requesting injunctive relief based only on the

17 District’s past failure to provide her with CART services in April 2009. (Opp’n 10.) Based on
18 this belief, the District concludes that D.H. has not shown irreparable harm because “alleged past
19 conduct does not amount to a present controversy which warrants relief.” (Id.) However, the
20 District fails to cite to any evidence or provide any substantive explanation in support of this
21 argument. The problem with the District’s argument is that while D.H. is complaining about
22 past, she is also complaining about present and future harm, and requesting injunctive relief to
23 address this harm. The operative complaint does not limit D.H.’s request for injunctive relief to
24 remedy only past violations and clearly calls for “an Order compelling Defendants to provide
25 CART” in light of all the District’s alleged violations of the ADA. (First Am. Compl. [Doc. 6] ¶
26 27.) Such a request for injunctive relief would defy logic if D.H. were only seeking injunctive
27 release based on the District’s failure to provide her with CART services one time in April 2009.
28 Also, the District’s conclusory arguments that D.H.’s pain is not “severe enough” to constitute
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1 irreparable injury and that psychological stress does not constitute irreparable injury are
2 completely inadequate, and contradicted by Ninth Circuit authority. See Chalk, 840 F.2d at 710.
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Therefore, the Court finds that D.H. is likely to suffer irreparable harm if this Court does

4 not impose the requested injunctive relief.
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D.

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D.H. suggests that, for a number of reasons, the District “will suffer little or no hardship

The Balance of Equities Favors D.H.

8 if compelled to provide D.H. with CART.” (Mot. Prelim. Inj. 22.) First, other public schools in
9 California and other states provide CART to their students. (Administrative Record 128, 480,
10 968.) Second, CART is required in state court and administrative proceedings. Cal. Civ. Code §
11 54.8. Third, CART was provided to D.H. by the State at her administrative hearing and by
12 Poway at a school board meeting. (Administrative Record 268; Decl. D.H. ¶ 6.) These facts,
13 according to D.H., show that the requested injunction would only compel the District to do what
14 it is required to do, what it has done in the past, and what other public entities regularly do under
15 the “effective communications regulation.” (See Mot. Prelim. Inj. 22.)
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The District fails to muster any argument to the contrary, apart from their unsubstantiated

17 claims that “[i]f an injunction is issued in this case, the District would be required to use limited
18 funds for a purpose not required by law.” (Opp’n 11.) Although the District does not elaborate
19 on this argument, it is clear that it has two parts: a cost component and a legal requirement
20 component.
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Noticeably lacking from the District’s argument are essential pieces of information

22 regarding the financial impact of CART, such as evidence regarding the cost of CART, the
23 school’s budget, and the cost of other accommodations that the District is providing D.H. This
24 evidence is necessary for the Court to evaluate the District’s claim regarding limited funds.
25 Thus, the Court cannot determine that implementing CART would present a hardship to the
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1 District with respect to its “limited funds.”4 Further, as explained above, D.H. has shown a
2 likelihood of success on the merits, which refutes the Districts conclusory claim that CART “is
3 not required by law.”
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In light of Plaintiff’s continued challenges to hear in class and the foregoing analysis, the

5 Court finds that the balance of the hardships weighs in favor of granting the requested
6 injunction.
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E.

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D.H. suggests that the requested injunction is in the public interest “given the importance

An Injunction is in the Public Interest

10 of education and the ADA’s mandate to eliminate disability discrimination.” (Mot. Prelim.
11 Inj. 25.) In support of her argument, D.H. sites federal statutes and seminal Supreme Court case
12 law. (Mot. Prelim. Inj. 23-24.) The District does not contest D.H.’s claims. Instead, the District
13 argues that “there has been no determination that the District has discriminated against Plaintiff
14 in anyway whatsoever.” (Opp’n. 12.) Further, the District suggests that if an injunction issues,
15 “the District [will] be required to expend already limited funds to provide Plaintiff with CART”
16 and that “these funds [will] be taken away from other students in the District for an unjustified
17 reason.” (Id.) The District’s argument is unpersuasive.
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First, the District’s argument evidences a misunderstanding of D.H.’s burden with respect

19 to injunctive relief. At this point in the proceedings, injunctive relief can be found appropriate
20 even if “there has been no determination that the District has discriminated against Plaintiff.”
21 As explained above, D.H. has demonstrated a likelihood of success on the merits of this case.
22 Although this falls short of a determination that the District has or is discriminating against D.H.,
23 it is still enough for injunctive relief to be appropriate.
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Second, on the record before it, the Court finds that the public interest of providing equal

25 access to education far outweighs the public interest of allocating some nebulous “limited funds”
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The same is true for any similar argument the District purports to make under 28 C.F.R.
28 § 35.164.
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1 to a disabled child instead of some “other students.” Although there appears to be no debate that
2 providing D.H. with CART would cost the District money, the District has failed to cite to any
3 evidence showing that the expense would negatively affect other students or the public in
4 general in any meaningful way.
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Therefore, the Court finds that this factor weighs in favor of granting the requested

6 injunction.
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8 IV.

CONCLUSION

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In light of the foregoing, the Court GRANTS D.H.’s motion for preliminary injunction

10 and ORDERS the District to provide D.H. with CART during classes at school.
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IT IS SO ORDERED.

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13 DATED: December 19, 2013
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15

M. James Lorenz
United States District Court Judge

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