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D.H. v. Poway Unified School District

United States District Court, Ninth Circuit

December 19, 2013

D.H., by and through her Guardian Ad Litem, KEVIN HARRINGTON, Plaintiff,


M. JAMES LORENZ, District Judge.

On August 3, 2013, the Ninth Circuit reversed this Court's decision and remanded this case for further proceedings. [Doc. 57.] On September 23, 2013, the Ninth Circuit denied petitions for rehearing and rehearing en banc. [Doc. 54.] On October 21, 2013, the Mandate of the Ninth Circuit was spread. [Doc. 56.] On October 22, 2013, Plaintiff D.H. filed an ex parte motion for a temporary restraining order. [Doc. 59.] The Court will evaluate this ex parte motion as a motion for preliminary injunction. ( See Court Order [Doc. 60].)

This Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS D.H.'s motion for a preliminary injunction.


D.H. is a deaf student eligible for special education who is attending school in the Poway Unified School District. She has moderate-to-profound hearing loss, and a cochlear implant in her right ear and uses a hearing aid in her left ear. The cochlear implant is an electronic device, part of which is surgically implanted, that stimulates the auditory nerve to give D.H. a sense of sound. She uses speech and listening as her primary mode of communication. Though she attends school in a general-education classroom with non-disabled students, D.H. does not hear everything spoken in class. Consequently, she relies on visual strategies, such as lip reading and observation of the actions of peers, as well as educated guesses to fill in for sentences that she does not hear. D.H. is not always aware of when she has not heard something. In addition, she has some difficulty communicating in that she sometimes mumbles, speaks very softly, and has difficulty producing certain sounds. Nevertheless, D.H. has earned excellent grades and is an active participant in class and social life at school.

At the April 20, 2009 Individualized Education Program ("IEP") meeting, the District offered D.H. the following: general education placement with specialized academic instruction/consultation with the resource specialist; deaf/hard of hearing ("DDH") services; audiological services; speech language services; and extended school-year services. The assistive technology devices included, but were not limited to, an FM amplification system for the classroom and school assemblies, a pass-around microphone, and close-captioning access during class videos. The communication strategies, accommodations, and modifications called for in the IEP included, but were not limited to, written directions, access to copies of peers' notes, consistent home/school communication, access to quiet work environments, classroom doors closed to eliminate noise, teachers repeating/rephrasing other students' responses, extra time for some assignments, and preferential seating. In addition to these accommodations, D.H.'s parents requested Computer Assisted Realtime Captioning ("CART"[2]), a real-time transcription service that displays words on a computer screen as they are spoken. The IEP denied the request as unnecessary to provide D.H. with a free appropriate public education ("FAPE").

On May 28, 2009, D.H. filed a due-process-hearing request under the IDEA. The only issue raised was the District's failure to offer CART services. Prior to the hearing, the District offered to give D.H. transcription services similar to CART, although the speech would be summarized rather than transcribed word for word. The service would have been provided on the condition that D.H.'s parents consent to it as a part of the IEP. On September 14, 2009, the District filed its own due-process-hearing request, seeking a declaration that the August 10, 2009 offer of transcription services provided D.H. with a FAPE.

On October 28, 2009, the administrative law judge ("ALJ") found that the April 20, 2009 IEP in its original form provided D.H. with a FAPE and that CART services were not required. Thereafter, D.H. appealed that decision to this Court. In addition to seeking reversal of the ALJ's decision, D.H. also asserts claims for violations of § 504 of the Rehabilitation Act and violations of the Americans with Disabilities Act ("ADA").

On April 9, 2010, D.H. moved for partial summary judgment as to her third claim, appealing the ALJ's decision. The District opposed. Ultimately, the Court denied D.H.'s motion and affirmed the ALJ's decision, concluding that "the April 20, 2009 IEP complied with the IDEA mandate of a free appropriate public education." (March 14, 2011 Order 10:4-9.)

Then, the parties cross-moved for summary judgment. In their cross-motions, both parties addressed D.H.'s claim alleging violations of the ADA. D.H. also requested that the Court "revisit its prior denial of summary judgment under IDEA." (Def.'s Mot. 6:19-20 [Doc. 36].) Both motions were opposed.[3] On June 12, 2012, the Court granted the District's motion for summary judgment and denied D.H.'s cross-motion for summary judgment. (June 6, 2012 Order [Doc. 46].) The Court essentially held that D.H.'s ADA claim failed on the merits for the same reasons that her IDEA claim failed. ( Id. 7.) D.H. successfully appealed this case to the Ninth Circuit. K.M. ex rel. bright v. Tustin Unified School Dist., 725 F.3d 1088 (9th Cir. 2013.) In reversing this Court's holding, the Ninth Circuit explained that "the success or failure of a student's IDEA claim [does not dictate], as a matter of law, the success or failure of her Title II claim." K.M., 725 F.3d at 1101.

D.H. is now in her last year of high school. ( Decl. D.H. [Doc. 55-2] ¶ 1.) She has now filed a motion for preliminary injunction, which the District opposes. D.H. seeks injunctive relief in the form of an order "compelling Poway to provide her with CART for classes at school." ( Mot. Prelim. Inj. [Doc. 59] 26.)


"A preliminary injunction is an extraordinary remedy" and is "never awarded as of right." Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)). "A plaintiff 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." Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 20 (2008).


A. Judicial ...

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