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DISABILITY RIGHTS LEGAL CENTER Paula D. Pearlman (SBN 109038) paula.pearlman@lls.edu Shawna L. Parks (SBN 208301) shawna.parks@lls.edu Matthew Strugar (SBN 232951) matthew.strugar@lls.edu 919 Albany St. Los Angeles, CA 90015 Tel: (213) 252-7406; Fax: (213) 487-2106 Melinda Bird (SBN: 102236) Melinda.Bird@disabilityrightsca.org Kevin Bayley (SBN: 218070) Kevin.bayley@disabilityrightsca.org DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd., Suite 902 Los Angeles, CA 90010-2512 Tel: (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, DONALD PETERSON, MICHAEL CURFMAN, ANDRE BUTLER, JOE GONZALEZ, COLUMBUS GRIGSBY, and DERRICK WHITE on behalf of themselves and all others similarly situated, Plaintiffs, vs. LOS ANGELES COUNTY SHERIFFS DEPARTMENT, a public entity; LEROY BACA, as Sheriff of the County of Los Angeles, and COUNTY OF LOS ANGELES, a public entity, Defendants. Case No.: CV 08-3515 DDP (SHx) PLAINTIFFS REPLY IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER Honorable Dean Pregerson Date: Time: Court: 3

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(continued from previous page) Peter Eliasberg (SBN: 189110) peliasberg@aclu-sc.org Hector Villagra (SBN: 177586) hvillagra@aclu-sc.org Jessica Price (SBN: 264053) jprice@aclu-sc.org ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Tel: (213) 977-9500; Fax: (213) 250-3980 Stephen R. Smerek (SBN: 208343) SSmerek@winston.com Benjamin Gipson (SBN: 222830) bgipson@winston.com WINSTON & STRAWN LLP 333 S. Grand Avenue Los Angeles, California 90071 Tel: (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 an expert 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 to Plaintiffs 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 ADAaccessible. 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 Untimely

Pursuant 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 < http://www.cacd.uscourts.gov/CACD/JudgeReq.nsf/0/891e5e5580ceb7a48825681 900830a23?OpenDocument> (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 and Inaccurate 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, he next 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. 116. IV. CONCLUSION

Plaintiffs 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 CALIFORNIA DISABILITY RIGHTS LEGAL CENTER DISABILITY RIGHTS CALIFORNIA WINSTON & STRAWN, LLP By: /s/ Jessica G. Price JESSICA G. PRICE Attorney for Plaintiffs