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Michigan Protection & Advocacy Service Inc. v. Flint Cmty. Sch.

United States District Court, E.D. Michigan, Southern Division

November 23, 2015


          For Michigan Protection and Advocacy Service, Inc., Plaintiff: Bradley J. Dembs, Michigan Protection & Advocacy Service, Inc., Lansing, MI.

         For Flint Community Schools, Larry Watkins, Jr., in his official capacity as Interim Superindent of Flint Community Schools represented by, Defendants: Pamela C. Dausman, Scott L. Mandel, Foster, Swift, Lansing, MI.


         Honorable DAVID M. LAWSON, United States District Judge.

         This is a lawsuit filed by the plaintiff -- a state-authorized advocacy group that advocates on behalf of mentally ill, physically disabled, and developmentally disabled students -- to obtain records of their client/students from the Flint Community Schools. Presently before the Court is the plaintiff's motion for a preliminary injunction to compel the school district to turn over school records of students for which the plaintiff has submitted requests accompanied by proper disclosure authorizations, and to order the school district to fulfill promptly all future requests for records submitted by the plaintiff. Defendant Flint Community Schools resists the motion arguing that it is moot (it says that it furnished all the records requested, albeit after a long wait) and unripe (because administrative remedies were not exhausted), the defendant is not subject to the pertinent federal legislation (it says it is not a " facility" as defined by the laws), none of the students whose records were requested were subject to abuse or neglect (which, it says, is a prerequisite for requesting the records), the plaintiff cannot show irreparable harm, and an injunction would not serve the public interest. The Court heard oral argument on the motion on September 30, 2015 and permitted the parties to submit supplemental briefs. The plaintiff has shown that it is entitled to a preliminary injunction to obtain the requested records because it likely will prevail on the merits, none of the school district's defenses is persuasive, and the other factors relevant to the consideration of preliminary injunctive relief favor the plaintiff. The motion will be granted.


         Plaintiff Michigan Protection and Advocacy Service, Inc. describes itself as a non-profit Michigan corporation, designated by Michigan's governor as the state's protection and advocacy system with the responsibility to enforce and carry out federal mandates under the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (PAIMI), the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (the DD Act), and the Protection and Advocacy of Individual Rights (PAIR) Program of the Rehabilitation Act of 1973, as amended. Congress passed those statutes (the " Protection and Advocacy Acts" ) " to ensure that the rights of individuals with mental illness are protected," and to " assist States to establish and operate a protection and advocacy system for individuals with mental illness which will . . . protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes," 42 U.S.C. § 10801(b); " to provide for allotments to support a protection and advocacy system . . . in each State to protect the legal and human rights of individuals with developmental disabilities in accordance with this part," 42 U.S.C. § 15041; and " to support a system in each State to protect the legal and human rights of individuals with disabilities" whose interests are not otherwise protected under either the PAIMI Act or the DD Act, 29 U.S.C. § 794e(a)(1).

         The plaintiff alleges that, over the past year, it has been contacted by several parents of students at the Flint Community Schools who expressed concerns that their children with disabilities and special educational needs were not being served adequately by the district's special education programs. In order to review the adequacy and appropriateness of the education programming provided to those students, the plaintiff submitted to the school district a number of requests for educational and other records relating to its client/students. In each case, the plaintiff provided to the district consent forms from the parents authorizing release of the requested records. The complaint sets forth a list of record requests by the plaintiff to which the school district either failed or refused to provide any timely response, including four requests filed in March and April 2015 that the district had either ignored or responded to only in part, as of July 10, 2015, when the complaint was filed. The complaint also describes four requests originally sent in October and November 2014, as to which the plaintiff filed due process complaints through the Michigan Administrative Hearing System in order to compel disclosure of the requested records. Those requests ultimately were fulfilled between March and April 2015, when the district finally agreed to provide the requested records, after delaying the requested disclosures for between five and six months during the pendency of the administrative proceedings.

         The plaintiff asserts that its mission of advocating for the rights of disabled students attending the defendants' schools (to ensure that those students receive adequate services) has been frustrated repeatedly by the failure or refusal of the school district to disclose educational records in a timely manner. It asserts that, in the cited cases, the plaintiff could not conduct a proper evaluation of the special education services offered to its clients for most of an entire school year, leaving those students potentially to suffer with inadequate or inappropriate services, and causing them to have even greater difficulties in their learning.

         The plaintiff filed its complaint on July 10, 2015, and its motion for a preliminary injunction on July 13, 2015. The defendants filed a response to the motion and the plaintiff filed a reply. The Court scheduled a prompt hearing, which was adjourned once at the request of the parties. The Court heard oral argument and allowed supplemental briefing.



         The criteria for obtaining a preliminary injunction are well known and undisputed by the parties. The relevant factors are whether (1) the moving party has demonstrated a substantial likelihood of success on the merits; (2) the moving party will suffer irreparable injury without the injunction; (3) the preliminary injunction will cause substantial harm to others; and (4) the public interest will be served if the injunction issues. Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002). Although these factors are to be balanced, the failure to show a likelihood of success on the merits is generally fatal. Ibid. ; see also Gonzales v. National Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000). Rule 65 of the Federal Rules of Civil Procedure authorizes the issuance of preliminary injunctions and temporary restraining orders when appropriate. It is appropriate here.

          First, the plaintiff has established that it likely will succeed on the merits of its claims. The legislation in question indisputably creates a right in an organization like the plaintiff to the records it seeks. It is undisputed that the plaintiff is a state advocacy system established to advocate the rights of students with mental illnesses and developmental disabilities. The Protection and Advocacy for Individuals with Mental Illness (PAIMI) Act, Pub. L. 99-319, states that such a protection and advocacy system " shall . . . have access to all records of [] any individual who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access." 42 U.S.C. § 10805(a)(4)(A). " [T]he term 'records' includes reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents." 42 U.S.C. § 10806(b)(3)(A). Although the definition of the term " records" in section 10806 is preceded by the phrase " in this section," the Third Circuit has held that " the definition of 'records' in § 10806 controls the types of records to which [a state advocacy system] 'shall have access' under § 10805 because § 10805 provides that an eligible system 'shall . . . in accordance with section 10806 of this title, have access to' certain records." Pennsylvania Prot. & Advocacy, Inc. v. Houstoun, 228 F.3d 423, 426 n.1 (3d Cir. 2000). That construction is sound. The phrase " care and treatment" is defined under the applicable regulation as meaning " services provided to prevent, identify, reduce or stabilize mental illness or emotional impairment such as mental health screening, evaluation, counseling, biomedical, behavioral and psychotherapies, supportive or other adjunctive therapies, medication supervision, special education and rehabilitation, even if only 'as needed' or under a contractual arrangement." 42 C.F.R. § 51.2.

         Regulations enacted under the authority of the PAIMI Act require that " [a]ccess to records shall be extended promptly to all authorized agents of a P& A system," 42 C.F.R. ยง 51.41(a) (emphasis added), and " [a] P& A [Protection and Advocacy] system shall be permitted to inspect and copy records, subject to a ...

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