Disability Rights Washington v. Meneses

Opinion

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6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA 9 G.G., by and through his grandmother and CASE NO. 3:22-cv-05651-RJB guardian, A.G.; A.M., by and through her 10 parent and guardian, L.M.; and ORDER ON PLAINTIFFS’ DISABILITY RIGHTS WASHINGTON, a MOTION FOR PRELIMINARY 11 nonprofit membership organization for the INJUNCTION federally mandated Protection and 12 Advocacy Systems, 13 Plaintiff, v. 14 JILMA MENESES, in her official capacity 15 as Acting Secretary of the Washington State Department of Health and Human 16 Services; and SUSAN BIRCH, in her official capacity as Director of the 17 Washington State Health Care Authority, 18 Defendant. 19 This matter comes before the Court on the Plaintiffs’ Motion for Preliminary Injunction. 20 Dkt. 14. The Court has considered the pleadings filed regarding the motion and the remaining 21 record. While the Defendants filed a Notice of Intent to File Surreply by November 2, 2022, 22 consideration of additional briefing is unnecessary to decide this motion. 23 24 1 The Plaintiffs in this case seek declaratory and injunctive relief regarding The Rainier 2 School (“Rainier”), a state-run, residential facility for people with intellectual and developmental 3 disabilities. Dkt. 1. The Plaintiffs contend that it is a dangerous place to live and fails to provide 4 for the health and safety of its residents. Id. 5 On September 29, 2022, the Defendants moved to dismiss the case. Dkt. 11. That same

6 day, the Plaintiffs moved for a preliminary injunction. Dkt. 14. The motion to dismiss was 7 noted for October 21, 2022 and the motion for preliminary injunction was noted for 8 consideration on October 28, 2022. Id. 9 On November 1, 2022, the Defendants’ motion to dismiss Plaintiff G.G. for lack of 10 standing was granted and his claims were dismissed. Dkt. 72. To the extent that Plaintiff 11 Disability Rights Washington asserted associational standing for all residents at Rainier (except 12 for those that live at Klamath Cottage or Naches Cottage (collectively “cottages”)), the 13 Defendants’ motion to dismiss Disability Rights Washington’s claims were dismissed for lack of 14 standing. Id. Further, the Plaintiffs’ claims for violations of their Fourteenth Amendment rights

15 and claims for violations of the Washington Law Against Discrimination were also dismissed. 16 Id. Accordingly, only Plaintiff A.M.’s and the other residents of the cottages’ (who are 17 represented by Plaintiff Disability Rights Washington) claims for violation of Title II of the 18 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et. seq. and the Rehabilitation Act 19 (“RA”), 29 U.S.C. § 701, et. seq. remain for purposes of the pending motion for preliminary 20 injunction. 21 To the extent the parties again raise issues related to standing or for failure to state a 22 claim in the briefing on this motion for preliminary injunction, the October 31, 2022 Order on 23 Defendants’ Motion to Dismiss (Dkt. ) addresses these issues and those rulings are adopted here. 24 1 To the extent that the parties who do not have standing seek a preliminary injunction or to 2 the extent that an injunction is sought on claims that have been dismissed, the motion for 3 preliminary injunction (Dkt. 14) should be denied. 4 DISCUSSION 5 In their motion for Preliminary Injunction, the remaining Plaintiffs move for the

6 following relief as it relates to the residents of the cottages: (1) an injunction ordered the 7 Defendants to cease all admissions to the cottages and (2) “an injunction ordering Defendants to, 8 as soon as the court deems practicable, discharge Plaintiff A.M. from Rainier School to a service 9 setting that meets her assessed needs and is aligned with her expressed desires for location and 10 setting.” Dkt. 14. 11 A. STANDARD 12 Plaintiffs seeking a preliminary injunction must establish one of two tests. All. for the 13 Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017). The first test requires plaintiffs to 14 show: (1) that they are “likely to succeed on the merits,” (2) that they are “likely to suffer

15 irreparable harm in the absence of preliminary relief,” (3) “the balance of equities tips in [their] 16 favor,” and (4) “an injunction is in the public interest.” Coffman v. Queen of Valley Med. Ctr., 17 895 F.3d 717, 725 (9th Cir. 2018)(citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 18 (2008) (internal quotation marks omitted)). Under the second variant of the 9th Circuit’s test for 19 a preliminary injunction, the “sliding scale” version of the Winter standard, “if a plaintiff can 20 only show that there are serious questions going to the merits—a lesser showing than likelihood 21 of success on the merits—then a preliminary injunction may still issue if the balance of hardships 22 tips sharply in the plaintiff’s favor, and the other two Winter factors are satisfied.” All. for the 23 Wild Rockies, at 1217 (internal quotation marks and citations omitted). 24 1 B. MOTION FOR PRELIMINARY INJUNCTION 2 1. Whether Plaintiffs are Likely to Succeed on the Merits or Serious Questions Going to the Merits 3 Plaintiff A.M. and Plaintiff Disability Rights Washington’s (for the other cottage 4 residents) remaining claims are for violations of their rights under the ADA and RA. The 5 October 31, 2022 Order provides the requirements for claims under these statutes. For ease of 6 reference, those requirements are repeated here. 7 Title II of the ADA provides, in relevant part, that “no qualified individual with a 8 disability shall, by reason of such disability, be excluded from participation in or be denied the 9 benefits of the services, programs, or activities of a public entity, or be subjected to 10 discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of the RA “similarly 11 prohibits disability discrimination by recipients of federal funds.” Payan v. Los Angeles Cmty. 12 Coll. Dist., 11 F.4th 729, 737 (9th Cir. 2021). Title II of the ADA and the RA “are interpreted 13 coextensively because there is no significant difference in the analysis of rights and obligations 14 created by the two Acts” aside from the RA’s requirement that the program receive federal 15 funds, which is not at issue here. Id. 16 To prove a violation of Title II of the ADA or of the RA, a plaintiff must show that: (1) 17 they are a “qualified individual with a disability”; (2) they were “either excluded from 18 participation in or denied the benefits of a public entity’s services, programs, or activities, or was 19 otherwise discriminated against by the public entity;” and (3) “such exclusion, denial of benefits, 20 or discrimination was by reason of [their] disability.” Duvall v. County of Kitsap, 260 F.3d 21 1124, 1135 (9th Cir. 2001) (citing Weinreich v. Los Angeles County Metropolitan Transp. Auth., 22 114 F.3d 976, 978 (9th Cir. 1997)). 23 24 1 Parties do not dispute that Plaintiff A.M. and the other cottage residents are “qualified 2 individual[s] with a disability.” The first element of a claim under both the ADA and RA are 3 met. 4 The second element, requires that the Plaintiffs point to evidence that the Defendants 5 denied or excluded A.M. and the other cottage residents from medical care or other benefit. The

6 parties do not dispute that the residents at the cottages (including A.M.) do not have the benefit 7 of federal oversight that residents of the other units of Rainier do. The Defendants point out that 8 the cottages are not required to be under federal oversight because they do not receive federal 9 funds and maintain that the cottages are under extensive state regulation. Dkt. 24. The Plaintiffs 10 do not point to any authority which supports their theory that a lack of federal oversight when 11 there is state regulation is a “denial of a benefit.” 12 Further, the Plaintiffs have failed to point to any competent evidence to support their 13 assertion that the cottage residents have been excluded from or denied medical care or other 14 treatment services that are offered at Rainier to residents of other units. In support of their

15 motion for preliminary injunction, the Plaintiffs point to the Declaration of Sue A. Gant, Ph.D. 16 Dkt. 15. She opines that “it is unlikely that the dangerous conditions in medical care and 17 behavior health supports that have been documented in [other units] at Rainier School do not 18 also exist for the residents of [the cottages].” Dkt. 15 at 30. Her opinion on this issue is not 19 sufficient. It is not clear that her opinion is based on “sufficient facts or data” as required by 20 Fed. R. Ev. 702(b). At a minimum, her opinion should not be afforded much weight. 21 The Plaintiffs have failed to make an adequate showing on the second element for a claim 22 under the ADA or RA, exclusion or discrimination. This opinion need not analyze the third 23 element. 24 1 At this stage in the litigation, the Plaintiffs have failed to show a likelihood of success on 2 the merits or that there are serious questions going to the merits. 3 2. Whether Plaintiffs will Suffer Irreparable Harm Absent Relief 4 Further, the Plaintiffs have not shown irreparable harm absent relief the Court granting 5 the first portion of the relief they seek. The first portion of relief that they seek (an injunction on

6 further admissions to the cottages) is not connected to the harms the residents of the cottages 7 allege they are suffering. It is not yet clear that A.M.’s requested relief, that she be moved to a 8 facility of her choice, would resolve all the emotional and psychological harms she claims. The 9 Plaintiffs have not shown irreparable harm absent relief. 10 3. Balance of Equities and Public Interest 11 At this stage in the litigation, the balance of the equities and the public interest do not 12 favor granting the preliminary injunction. 13 C. CONCLUSION 14 The motion for preliminary injunction (Dkt. 14) should be denied without prejudice. The

15 Plaintiffs have failed to make the requisite showing. 16 IT IS SO ORDERED. 17 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 18 to any party appearing pro se at said party’s last known address. 19 Dated this 1st day of November, 2022. 20 A

21 ROBERT J. BRYAN 22 United States District Judge

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