F. The DOC's Discrimination Causes Ongoing, Actual Injury, and Contravenes the Public Interest In Preventing Discrimination.
Finally, the plaintiffs can demonstrate irreparable harm.35
In Cupolo v. Bay Area Rapid Transit
, 1997 WL 901909 at *5, this Court opined that "[i]njuries to individual dignity and deprivations of civil rights constitute irreparable injury," citing Chalk v. United States Dist. Court
, 840 F.2d 701, 710 (9th Cir. 1988), and Sullivan v. Vallejo City Unified School Dist.
, 731 F. Supp. 947, 961 (E.D. Cal. 1990). The Cupolo
Court underscored the ADA's goals of "equality of opportunity" and "full participation" and the fact that the behavior of the defendant interfered with the ADA's accomplishment of those goals. Id
. See also
42 U.S.C. § 12101 (stating goals).
The same considerations are present in this case. According to the statements of the plaintiffs, the DOC continually refused to provide plaintiffs with qualified intepreters, TDDs, and captioning decoders, even after plaintiffs' counsel had spent time and energy negotiating a specific policy of non-discrimination. Defendants apparently made no effort whatsoever to put these policies into practice; they did not even undertake the simple step of posting a notice of plaintiffs' rights. Plaintiffs have no reason to believe that class members will not continue to suffer humiliation and irreparable injury.
These injuries are serious. Class members have been forced to endure delays of several days in release from custody — prior to being convicted of any crime. There are few constraints on freedom more profound than custody. More to the point, while in custody, Plaintiffs have been forced into profound isolation, prevented from participating in programs or services, from vital medical treatment and rehabilitation,36 to recreation as basic as watching television.37 Almost every avenue of communication has been closed to them: they are prevented from communicating with family, friends, and the courts over the phone, and are unable to communicate at anything more than a gestural level with officers and other inmates. Not surprisingly, these circumstances caused and continue to cause indignity, forced dependence, and emotional turmoil.38
Finally, in Innovative Health Systems, Inc. v. City of White Plains, 931 F. Supp. 222, 244 (S.D.N.Y. 1996), the court applied reasoning similar to that in Cupulo to find that the balance of hardships weighed in the favor of a preliminary injunction for violations of the ADA and the Rehabilitation Act. Specifically, the court stated that discrimination on the basis of disability converted the case into one warranting relief, especially where the Acts provide courts with the express power to change the discriminatory practices.
For the foregoing reasons, the United States respectfully urges the Court to grant the plaintiffs' application for a preliminary injunction.
Respectfully submitted this 26th day of June 1998.
MICHAEL J. YAMAGUCHI BILL LANN LEE
United States Attorney Assistant Attorney General
for Civil Rights
MARY BETH UITTI John L. Wodatch
Assistant United States Attorney Chief Renee M. Wohlenhaus
California Bar No. ___________ Acting Deputy Chief
450 Golden Gate Ave Kate M. Nicholson
San Francisco, CA 94102 Attorney
(415) 436-7200 U.S. Department of Justice
Civil Rights Division
Disability Rights Section
P.O. Box 66738
Washington, D.C. 20035-6738
Tel: (202) 514-5527
Attorneys for the United States