Petition for Writ of Certiorari — Nina Ringgold, Petitioner v. Providence Health & Services, et al.

No. 18_________

IN THE

Supreme Court of the United

States

—————w—————

NINA RINGGOLD, in the Capacity As A Named

Agent Under Advance Health Care Directive

And In Her Individual Capacity,

Petitioner,

v.

PROVIDENCE HEALTH & SERVICES,

Respondent.

—————w—————

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Ninth

Circuit

—————w—————

PETITION FOR A WRIT OF CERTIORARI

—————w—————

NINA R. RINGGOLD

Counsel of Record

LAW OFFICES OF

NINA R. RINGGOLD

17901 Malden St.

Northridge, CA 91325

Telephone: (818) 773-2409

2

i

QUESTIONS PRESENTED

There is generally agreement among the

courts of appeal that under 504 of the Rehabilitation

Act and the Americans with Disabilities Act that a

non-disabled person has standing to pursue

injunctive relief when they are injured because of

their association with a disabled person. However,

there are conflicting decisions between the Second

Circuit and Eleventh Circuit concerning the type of

injury a non-disabled person must establish to gain

standing. The Ninth Circuit has taken an extreme

view that, irrespective of the nature of the

independent injury of a non-disabled person, that

associational standing and injunctive relief is

rendered moot if the disabled person dies.

The questions presented are:

1.

Whether a non-disabled plaintiff must

establish a separate injury casually related to, but

separate and distinct from, a disabled person’s injury

under Loeffler v. Staten Island Univ. Hosp., 582 F.3d

268, 279 (2nd Cir. 2009) or establish a separate injury

of exclusion, denial of benefits, or discrimination

under McCullum v. Orlando Regional Healthcare

System Inc. 768 F.3d 1136,1143-44 (11th Cir. 2014).

2.

Whether the existing circuit conflict is

further burdened by the standard of the Ninth

Circuit that a claim of injunctive relief of a nondisabled person is lost if the disabled person dies.

ii

3.

Whether the Ninth Circuit’s analysis is

flawed and disregards longstanding and wellestablished authorities of this court as to jurisdiction

and mootness (including but not limited to

exceptions to the mootness doctrine. (i.e. capable of

repetition while evading review or the duration is too

short to be fully litigated prior to its expiration)).

iii

PARTIES TO THE PROCEEDINGS

The parties are listed in the caption. In

addition, the executor of the estate of Eddye

Melaragno and trustee of the Eddye Melaragno

Family Trust filed motions seeking party

substitution pursuant to Rule 43 of the Federal

Rules of Appellate Procedure immediately upon

filing the appeal and death of Eddye Melaragno.

(See USCA 9th Cir. Docket Nos. 17-56742 (“Dkt”) 2,

20). 1

1 The motion was denied in the dismissal order.

(App. 3). The

renewed motion filed before filing this petition has not been

ruled upon by the Ninth Circuit. (Dkt 20). Therefore the name

of Eddye Melaragno or the executor of her estate cannot appear

in the caption. The name in the caption of the Ninth Circuit

(Eddye Melaragno, By and Through Her Agent Under Durable

Power of Attorney) is no longer applicable because Eddye

Melaragno died on November 9, 2017. The agent under Eddye

Melaragno’s durable power of attorney, Justin RinggoldLockhart, is the executor of the estate of Eddye Melaragno and

trustee of the Eddye Melaragno Family Living Trust. He is still

waiting for ruling from the Ninth Circuit on the party

substitution motion. The Ninth Circuit has not issued a

mandate to the District Court.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS ........................ ii

TABLE OF CONTENTS ........................................... iv

INDEX TO APPENDICES ....................................... vi

TABLE OF AUTHORITIES .................................... vii

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW................................................... 1

JURISDICTION ......................................................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........................................ 2

INTRODUCTION AND STATEMENT .................... 5

REASONS FOR GRANTING THE PETITION

FOR A WRIT OF CERTIORARI ............................. 18

I. Certiorari Should Be Granted Because The

Decision Of The Ninth Circuit Disregards

Controlling Authorities Of This Court And Fails

To Distinguish Between Mootness And Standing

v

II. Certiorari Should Be Granted To Resolve

Conflicting Authorities Among Circuit Courts On

The Nature Of The Injuries A Non-Disabled Person

Must Establish To Maintain Valid And Important

Claims For Injunctive Relief .................................. 10

III. Certiorari Should Be Granted Because The

Ninth Circuit’s Approach In Determining Lack Of

Jurisdiction Significantly Disregards The Controlling

Authorities Of This Court In Carson v. American

Brands, Inc., Gillespie v. United States Steel Corp.,

And Cohen v. Beneficial Indus. Loan Corp. ........... 10

CONCLUSION ........................................................ 34

vi

INDEX TO APPENDICES

Page

Appendix A: October 19, 2018. Order dismissing

appeal as moot, in part, and for lack of jurisdiction,

in part. (USCA 9th Cir. Case No. 17-56742) ............. 1

Appendix B: November 28, 2017. Order to show

cause issued by clerk of court of the United

States Court of Appeals for the Ninth Circuit

(USCA 9th Cir. Case No. 17-56742) .......................... 4

Appendix C: September 14, 2017. Order denying

plaintiffs’ ex parte application for temporary

restraining order, protective order, and order to

show cause re preliminary injunction

(in chambers)(USDC Case No. CV 17-06296

SJO (SK) ..................................................................... 7

Appendix D: September 22, 2017. Order denying

plaintiffs’ ex parte application for temporary

restraining order, protective order, and order

to show cause re preliminary injunction (in

chambers)(USDC Case No. CV 17-06296

SJO (SK) .................................................................. 20

Appendix E: October 17, 2017. Order denying

plaintiffs’ ex parte application for reconsideration

and/or to vacate previous orders; denying plaintiffs’

ex parte application for stay and injunction pending

review and denying plaintiffs’ ex parte application

for certification; order granting plaintiffs’ motion to

vii

strike declaration of Michael J. Elsberry; order

granting plaintiffs’ motion to strike stipulation

to substitute attorney; order granting plaintiffs’

motion to strike exhibit. (in chambers)(USDC

Case No. CV 17-06296 SJO (SK)). .......................... 29

Appendix F: November 14, 2017. Order denying

plaintiffs’ motion to strike answer and motion

for entry of default; order denying plaintiff’s

request for hearing on the matter of the

appearances for defendant and request to

cross-examine signatories thereto (in

chambers)(USDC Case No. CV 17-06296

SJO (SK)) ................................................................. 52

Appendix G: August 25, 2017. Exhibit 1 to

Complaint. Illustration showing why the cuff

(or balloon) in a tracheostomy tube must be

deflated so that a person may be able to speak.

(USDC Case No. CV 17-06296 SJO (SK)) .............. 67

viii

TABLE OF AUTHORITIES

CASES

Addiction Specialist, Inc. v. Township Of Hampton,

411 F.3d 399 (3rd Cir. 2005) ..................................... 22

Bosse v. Oklahoma,

137 S.Ct 1 (2016) ..................................................... 15

Build of Buffalo, Inc. v. Sedita,

441 F.2d 284 (2nd Cir. 1971) .................................. 24

Carson v. American Brands, Inc.

450 U.S. 79 (1981) ............................................. 23, 24

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949) ........................................... 23, 27

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc.,

528 U.S. 167 (2000) ..................................... 14, 15, 17

Gillespie v. United States Steel Corp.,

379 U.S. 148 (1964) ................................................. 24

Goldman v. SunBridge Health Care, LLC,

220 Cal.App.4th 1160 (Cal. 2013) ............................ 13

Ind. v. Colorado Dept. of Corrections,

801 F.3d 1209 (10th Cir. 2015) ................................ 19

ix

Innovative Health Systems, Inc.,

117 F.3d 37 (2nd Cir. 1997) ...................................... 22

Lawrence v. Blackwell,

430 F.3d 368 (2005) ................................................. 20

Loeffler v. Staten Island University Hosp.,

582 F.3d 268 (2nd Cir. 2009) ........................... i, 20, 21

McCullum v. Orlando Reg’l

Healthcare Sys. Inc.,

768 F.3d 1135 (11th Cir.) ................................ i, 21, 22

Miller v. Lehman,

736 F.2d 1268 (9th Cir. 1983) ................................. 24

People of Village of Gambell v. Babbitt,

999 F.2d 403 (9th Cir. 1993) .................................... 23

Turner v. Rogers,

131 S.Ct. 2507 (2011) .............................................. 19

CONSTITUTIONAL PROVISIONS AND

STATUTES

U.S. Const., Art. III ................................ 2, 14, 18, 21

28 U.S.C. § 1254 (1).................................................... 1

28 U.S.C. § 1291 ................................................... 2, 25

28 U.S.C. § 1292 (a) ............................................. 3, 21

x

28 U.S.C. § 1651 ........................................................ 1

28 U.S.C. § 2106 ......................................................... 1

504 of the Rehabilitation Act

(29 U.S.C. § 701 et seq.) ............................................ 6

29 U.S.C. § 701(c) ....................................................... 6

29 U.S.C. § 794a (a)(2) ............................... 4, 6, 21-22

American with Disabilities Act, Title III

(42 U.S.C. § 12181 et seq.) .................................... 4, 6

42 U.S.C. § 12182 (b)(E) ........................................ 4, 6

Health Insurance Portability and

Accountability Act of 1996 Pub.L. 104-191,

110 Stat. 1936 .............................................. 16, 30-31

California Probate Code § 4711 ....................... passim

REGULATIONS

28 C.F.R. § 36.303 (a) ................................................ 7

28 C.F.R.§ 36.303 (c) ................................................. 7

45 C.F.R. 164.512 (e) ............................................... 31

xi

FEDERAL RULES OF APPELLATE

PROCEDURE

Rule 43 ....................................................................... iii

DISTRICT COURT LOCAL RULES

Local Rule for the United States District Court for

the Central District of California, Rule 79-5.3 .. 30-31

OTHER

California Rutter Practice Guide: Federal Civil

Procedure Before Trial

§ 13:124 (2017) ......................................................... 12

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Nina Ringgold respectfully requests

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Ninth

Circuit.

__________w__________

OPINIONS BELOW

The opinion sought to be reviewed is that of

the United States Court of Appeals for the Ninth

Circuit dated October 19, 2018. The opinion of is not

published and is reprinted in the Appendix herein.

The Ninth Circuit dismissed the appeal as moot, in

part, and for lack of jurisdiction, in part. (Appendix

“App”. 1).

_________w__________

JURISDICTION

The jurisdiction of this Court is invoked under

the provisions of Title 28, United States Code,

Section 1254 (1), 28 U.S.C. § 1651 (a), and 28 U.S.C.

§2106. This court granted an application to extend

time to file this petition2 to February 16, 2019 which

is a weekend day and the following Monday was a

holiday. This petition is timely filed on February 19,

2019.

2

Granted by Justice Kagan. (Application 18A712).

2

__________w__________

CONSTITUTIONAL AND STATUORY

PROVISIONS INVOLVED

Article III, Section 2 of the Constitution

states:

The judicial Power shall extend to all

Cases, in Law and Equity, arising under

this Constitution, the Laws of the

United States, and Treaties made, or

which shall be made, under their

Authority;--to all Cases affecting

Ambassadors, other public Ministers

and Consuls;--to all Cases of admiralty

and maritime Jurisdiction;--to

Controversies to which the United

States shall be a Party;--to

Controversies between two or more

States;--between a State and Citizens of

another State;--between Citizens of

different States,--between Citizens of

the same State claiming Lands under

Grants of different States, and between

a State, or the Citizens thereof, and

foreign States, Citizens or Subjects.

28 U.S.C. § 1291 states:

The courts of appeals (other than the

United States Court of Appeals for the

Federal Circuit) shall have jurisdiction

3

of appeals from all final decisions of the

district courts of the United States, the

United States District Court for the

District of the Canal Zone, the District

Court of Guam, and the District Court

of the Virgin Islands, except where a

direct review may be had in the

Supreme Court. The jurisdiction of the

United States Court of Appeals for the

Federal Circuit shall be limited to the

jurisdiction described in sections 1292

(c) and (d) and 1295 of this title.

28 U.S.C. § 1292 (a) states:

(a) Except as provided in subsections

(c) and (d) of this section, the courts of

appeals shall have jurisdiction of

appeals from:

(1) Interlocutory orders of the district

courts of the United States, the United

States District Court for the District of

the Canal Zone, the District Court of

Guam, and the District Court of the

Virgin Islands, or of the judges thereof,

granting, continuing, modifying,

refusing or dissolving injunctions, or

refusing to dissolve or modify

injunctions, except where a direct

review may be had in the Supreme

Court;

4

504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794a, remedies and attorney fees, at

subsection (a)(2) states:

The remedies, procedures, and rights

set forth in title VI of the Civil Rights

Act of 1964 (42 U.S.C. 2000d et seq.)

(and in subsection (e)(3) of section 706

of such Act (42 U.S.C. 2000e-5), applied

to claims of discrimination in

compensation) shall be available to any

person aggrieved by any act or failure to

act by any recipient of Federal

assistance or Federal provider of such

assistance under section 794 this title.

The Americans with Disabilities Act, 42 U.S.C.

§ 12182, prohibition of discrimination by public

accommodations, at subsection (b)(1)(E) states:

It shall be discriminatory to exclude or

otherwise deny equal goods, services,

facilities, privileges, advantages,

accommodations, or other opportunities

to an individual or entity because of the

known disability of an individual with

whom the individual or entity is known

to have a relationship or association.

California Probate Code § 4711, allows

appointment of a surrogate to make health care

decisions in a health care facility. The designation

expires in sixty (60) days and it has priority over any

5

power of attorney for health care or advance care

directive. It states:

(a) A patient may designate an adult as

a surrogate to make health care

decisions by personally informing the

supervising health care provider. The

designation of a surrogate shall be

promptly recorded in the patient’s

health care record.

(b) Unless the patient specifies a shorter

period, a surrogate designation under

subdivision (a) is effective only during

the course of treatment or illness or

during the stay in the health care

institution when the surrogate

designation is made, or for 60 days,

whichever period is shorter.

(c) The expiration of a surrogate

designation under subdivision (b) does

not affect any role the person

designated under subdivision (a) may

have in making health care decisions for

the patient under any other law or

standards of practice.

(d) If the patient has designated an

agent under a power of attorney for

health care, the surrogate designated

under subdivision (a) has priority over

the agent for the period provided in

subdivision (b), but the designation of a

surrogate does not revoke the

6

designation of an agent unless the

patient communicates the intention to

revoke in compliance with subdivision

(a) of Section 4695.

__________w__________

INTRODUCTION AND STATEMENT

504 of the Rehabilitation Act of 1973 (29

U.S.C. § 701 et seq.) expressly finds that it is the

policy of the United States that all activities

receiving federal financial assistance are to be

carried out in a manner consistent with “individual

dignity”, “self-determination”, “equal access” to

persons with disabilities. Additionally, it mandates

“support for the involvement of an individual’s

representative if an individual with a disability

requests, desires, or needs such support”. (29 U.S.C.

§ 701 (c)). Enforcement of the Act applies to “any

person aggrieved by any act or failure to act by any

recipient of Federal assistance” (29 U.S.C. § 794a

(a)(2), See also Americans with Disabilities Act 42

U.S.C. § 12182 (b)(E)). This case concerns orders of

the District Court denying motions for injunction,

protective order, and other relief in the clear face of

policies and activities of Providence Health &

Services (“Providence”) that are intentionally

discriminatory and have a tremendous adverse

impact persons with communication related

disabilities that seek services in hospital emergency

rooms and have a right to designate statutory health

care surrogates under California Probate Code §

4711.

7

Providence was required to ensure that

Melaragno and her representatives were not denied

services, excluded, segregated or otherwise treated

differently because of the absence of auxiliary aids

and services. (28 C.F.R. § 36.303 (a)). It was

required furnish appropriate auxiliary aids and

services necessary to ensure effective communication

with persons with disabilities including through

their chosen statutory health care surrogates, family

members, companions, and other means. (28 C.F.R.

§ 36.303 (c)).

In order to abusively hold persons with

communication related disabilities hostage and to

engage in outrageous and unnecessary Medicare

billing and retaliation; Providence refuses access to

medical records or to make reasonable

accommodation to allow effective communication.

Providence attempts to involuntarily funnel patients

into its long-term care facility located on the grounds

of the hospital without disclosing its financial

interests.

In the underlying appeal there does not exist

material conflicting evidence because the motion for

injunctive relief was not opposed. Instead of filing

opposition to injunctive relief, after the case was filed

and injunctive relief was sought, Providence

intentionally and maliciously caused the death of

Melaragno. Within less than an hour after an

application for temporary restraining order and a

request for immediate issuance of an order to show

cause was filed in the district court, Providence

8

moved Melaragno involuntarily to a secret location.

It refused to tell Melaragno’s immediate family, all

persons living with her, her companions, and Care

Partner Team where Melaragno had been taken. In

their horror and distress they had to engage a

manhunt to find her. Eventually Melaragno was

found in a substandard nursing home in total

distress with Providence doctors still purporting to

administer her care. Providence had placed orders

and endorsements in Melaragno’s medical records

that her immediate family and those who have been

caring for her 24 hours a day could not communicate

with any doctor. Then Providence caused Melaragno

to be transferred 5 times, in a thirty-day period, after

the case was filed in the District Court -- only to be

returned to the original hospital she had been taken

from.

Every single potential representative and

advocate of Melaragno joined together to file a

Medicare appeal, including Melaragno’s elderly

sister who was dying and did die shortly after

Melaragno. (See Dkt 9-1, 9-2). To amplify the

mounting malicious and retaliatory conduct,

Providence prohibited physical access to the hospital

so Melaragno’s only child (petitioner) and grandchild

could not be with her when she was dying. Also, now

that Providence had created the circumstance of

Melaragno’s death all persons identified in the

advance health care directive were either excluded

from the hospital or not available.3 This was done to

3

As the plaintiffs repeatedly informed the District Court Melaragno’s

elderly sister was severely ill and dying, had no knowledge of

9

ensure that Melaragno would die. All along

Providence was submitting over $1,000,000 to

Medicare for unauthorized services and payment for

its discriminatory conduct. It still seeks payment

from Medicare and contribution against Melaragno’s

successors.4

The injunctive relief and

protective order by petitioners sought the

following:

“

1.

That defendant, its

employees, administrators, agents,

affiliates, contractors, physicians

(including those employed, authorized

to use, or to have privileges at your

medical facilities), risk management

personnel, and attorneys and those in

active concert or participation with

defendants:

a.

Shall be enjoined

from refusing to accommodate persons

with communication related disabilities

from designating surrogates in the

delivery of services and especially

emergency room services.

Melaragno’s health conditions, and had difficulty coming to the hospital.

She did not want to be and could not be a participant in the case.

4

This all the more reason why the Court of Appeal should have

immediately granted the motion for party substitution for the successor of

Melaragno and demonstrates an independent basis for standing and

injunctive relief.

10

b.

Shall be enjoined

from blocking effective communication

and thereby refusing to accommodate

ventilator patients with cuffed

tracheostomy tubes by safely deflating

the balloon within the tracheostomy

tube, or engaging in non-verbal means

of communication, or engaging in other

suitable requested and reasonable

accommodation.

c.

Shall be enjoined

from barring access to medical records

and information by persons with

disabilities that cannot physically reach

the medical records department and/or

have communication impairments when

proper accommodation can easily be

provided through use of their agents

under a durable power of attorney

and/or their surrogates.

d.

Shall be enjoined

from attempting to claim that a

communication disability is a lack of

capacity and to do so through a

physician that has not been specifically

identified by the disabled patient as

that person’s primary care physician.

e.

Shall be enjoined

from conduct that attempts to give

effect to an advance health care

11

directive that is not yet effective and

when there is a designation of surrogate

by non-verbal means by a person with a

communication related disability.

f.

Shall be enjoined

from continuing to administer

medication and medical procedures

against persons with communication

disabilities and racial minorities with

communication with disabilities, while

disregarding designation of surrogates

and refusing legitimate requests for

medical records, so as to allow their

bodies to be used to submit

unwarranted claims for federal

financial assistance in the form of

Medicare and Medicaid.

g.

Shall be enjoined

from acts to undermine the goal of

independent living of persons with

disabilities, including but not limited to

by failing to engage in effective

communication by reasonable

accommodation and by disregarding a

designation of surrogates and instead

attempting involuntary facility

placement, particularly when the

surrogates and other persons with

personal knowledge of the wishes and

capabilities of the person with the

disability are present and are actively

12

engaged in the day-to day needs, care,

and life of the person with a disability

and have superior information.

h.

Shall be enjoined

from continuing to administer

medication and procedures on a person

with a communication disability

without providing reasonable

accommodation necessary for effective

communication and in disregard of nonverbal designation of surrogates by the

person with a communication disability.

i.

Shall be enjoined

from discriminatory retaliation,

surveillance, intimidation, and racial

stereotyping as a means to frustrate the

equal rights of persons with disabilities

and racial minorities to public

accommodations and to interfere with

privacy, dignity, comfort, and care of

persons with disabilities. “

( Dkt 9-6 BS 616-618).

In a prejudicial manner the District Court

engendered further delay by causing more motions to

be filed rather than order a hearing on the proposed

order to show cause.5 It raised defenses, which were

5 See Practice Guide: Federal Civil Procedure Before

Trial § 13:124 (2017).

13

not pled by the defendant or raised in opposition to

the motions. (i.e. by inferring that there was an

effective advance health care directive in effect).6

Eddye Melaragno died on November 9, 2017.

The appeal was filed on November 16, 2017. On

November 20, 2017 a motion for substitution of a

party was filed. (Dkt 2). Within about a week

thereafter the clerk of court entered an order to show

cause as to why the appeal should not be dismissed

6 This issue was irrelevant because: (1) California

Probate Code § 4711 expressly states that a

statutory designation of surrogacy has priority over

an advance care directive, and (2) as a matter of law

Melaragno’s advance health care directive was not in

effect). No doctor at Providence was Melaragno’s

primary physician and Melaragno had expressly

designated a physician to determine when her

advance care directive was in effect. See Goldman v.

SunBridge Health Care, LLC, 220 Cal.App.4th 1160,

1167-1168 (Cal. 2013)(when a defendant fails to

demonstrate the patient’s designated primary care

physician made a determination to render an

advance care directive to be in effect the actions

taken based on that instrument are void). (See the

language of the advance care directive. (Dkt 11 BS

834-842)). Petitioner as a named agent within the

instrument had standing to object its misuse. This

includes use of the instrument in conflict with its

plain terms by physicians who were not identified

within the instrument by Melaragno.

14

for lack of jurisdiction. (Dkt 3). No mention was

made that the appeal was considered moot. No order

was entered on the motion for party substitution. A

response was filed to the order to show cause along

with a preliminary excerpts of record. (Dkt 9-1 to 96, 10, 11). Providence filed reply and a corporate

disclosure statement. (Dkt 13, 15). Petitioner filed a

motion to strike this disclosure statement on March

30, 2018. (Dkt 14).

On October 19, 2018 an order was entered

dismissing the appeal in part as moot and in part for

lack of jurisdiction.

__________w__________

REASONS FOR GRANTING THE PETITION

FOR A WRIT OF CERTIORARI

I.

Certiorari Should Be Granted Because

The Decision Of The Ninth Circuit Disregards

Controlling Authorities Of This Court And

Fails To Distinguish Between Mootness And

Standing

This court held that “[t]he Constitution’s caseor-controversy limitation on federal judicial

authority Art. III, § 2 underpins both standing and

mootness doctrine”, but that the two inquires differ

in crucial respects. Ignoring the thoughtful and

detailed decision of Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc., 528

U.S. 167, 180 (2000) the Ninth Circuit conflates the

15

standing and mootness doctrine. See Bosse v.

Oklahoma, 137 S.Ct 1, 2016 (only the Supreme Court

has the prerogative to overrule its precedents). The

appeal as to injunctive relief was not rendered moot

by Melaragno’s death in that there was a live and

active controversy, an ongoing violations, and the

matters presented on appeal were capable of

repetition while evading review.

In Friends of the Earth this court held that

that citizen groups did not lack of standing to bring a

suit seeking both injunctive relief and civil penalties

under the Clean Water Act; and that the action was

not rendered moot by compliance with permit limits

on discharge of pollutants in a waterway or by

shutdown of the business after litigation had

commenced, absent a showing that violations could

not reasonably be expected to reoccur. Although

Providence did not comply with the applicable law or

shutdown its business after litigation had

commenced, under the same theory of Friends of the

Earth, Providence engaged in illegal dumping of the

disabled person and excluding petitioner and others

to cause Melaragno’s death. As a ploy it dumped

Melaragno without stabilization or a discharge plan

at an undisclosed location so it could claim

Melaragno was no longer a patient at the time the

request for injunctive relief was filed in the District

Court. Providence excluded and retaliated against

all those who were lawfully designated as

representatives, agents, family members, and

companions. It refused disability accommodation so

Melaragno and her designated agents could obtain

16

medical records. Providence placed Melaragno

through the circus of 5 malicious transfers, isolated

Melaragno, and barred access to those closest to

Melaragno and all persons that she relied upon daily

for support and assistance.

Providence cannot continue and persist in its

discriminatory policies and systemic discriminatory

pattern of conduct by (1) refusing to allow emergency

room patients with an obvious need for disability

accommodation to designate statutory health care

surrogates, (2) refusing to allow persons with

disabilities and their representatives and surrogates

and family members access to medical records

(particularly when the Health Insurance Portability

and Accountability Act of 1996 Pub.L. 104-191, 110

Stat. 1936 (“HIPAA”) allows an agent under a

durable power of attorney and responsible for

payment of Melaragno’s medical bills access to

medical records) (3) refusing to provide disability

accommodation, (4) engaging in retaliation and

excluding access, (5) attempting to involuntarily

place patients in its long-term care facilities, and (6)

continuing with improper billing to Medicare for

services that are not authorized and harmful.

There is no dispute that Melaragno and

petitioner had standing at the commencement of the

case. Both had suffered injuries in fact fairly

traceable to the challenged conduct of Providence.

Additionally both, jointly and independently,

demonstrated injuries that could be redressed by a

decision in their favor. Petitioner as a family

17

member, statutorily designated health care

surrogate and named agent under an advance health

care directive and representative has independent

and associational standing. The injunctive relief

sought in the district court addressed the claims of

both Melaragno and petitioner. The claims of

Melaragno survive her death and are claims that

must properly be assumed and continued by her

successor. There is no valid basis for the Ninth

Circuit to refuse to allow party substitution by either

the executor of Melaragno’s estate or trustee of the

Melaragno trust. Although the plaintiffs in Friends

of the Earth did not appeal the denial of injunctive

relief, this court made it clear that there existed

standing as to remedies for ongoing violations that

existed at the time the complaint was filed and that

could continue into the future.

On mootness in Friends of the Earth this court

held that a defendant’s claim of voluntary cessation

of a challenged practice does not deprive a court of

the power to determine the legality because

otherwise this would leave “[t]he defendant…free to

return to his old ways”. Id. 189. Although here there

was no voluntary cessation by Providence, the failure

to enjoin the continuing violation hastens the

potential death of persons with communication

disabilities who are left without the legal right of

access to their medical records or statutorily

required health care surrogates. The principle

guiding this court’s decision was stated as follows:

“the standard we have announced for determining

whether a case has been mooted by the defendant’s

18

voluntary conduct is stringent: ‘ A case might become

moot if subsequent events made it absolutely clear

that the allegedly wrongful behavior could not

reasonably be expected to recur.’” And, this heavy

burden rests with the defendant. Id. This court

rejected descriptions of mootness as “standing set in

a time frame”, because “the exception to mootness

that arises when the defendant’s allegedly unlawful

activity is ‘capable of repetition, yet evading review,’

could not exist.” Id. at 190-91.

Providence’s continuing violation of the ADA

and 504 of the Rehabilitation Act and retaliation,

combined with shortened limitation period for

designating heath care surrogates and the improper

benefit of federal financial assistance and continued

attempts to obtain contribution from Melaragno’s

successor amplifies that Melaragno’s death does not

render the appeal moot. Instead it demonstrates

that the Article III case and controversy requirement

has been met. There is (1) an injury in fact, (2) a

causal connection between the injury and the

challenged actions, and (3) a favorable decision is

the only way for a non-disabled person to perform

statutory duties as a health care surrogate or

representative for the disabled person with a

communication related disability in similar

circumstances. Those persons assisting in protecting

a disabled persons’ rights cannot obtain effective

redress to enjoin and prevent a serious and

irreparable injury (death). If the federal court does

not timely rule on injunctive relief claims, the

successor and designative health care surrogates and

19

advocates, continue to have a personal stake in the

outcome and the continuing policies and violation of

federal law. “In deciding whether a case is moot, the

crucial question is whether granting a present

determination of the issues offered will have some

effect in the real world.” Ind. v. Colorado Dept. of

Corrections, 801 F.3d 1209, 1213 (10th Cir. 2015).

Here, there is a real world effect and a live

controversy that both the ADA and 504 of the

Rehabilitation Act are expressly designed to remedy

and the relief allowed is not impossible. The wrong

complained of is capable of repetition yet evades

review. The October 19, 2018 order allows

Providence to persist with further violations, to

exclude and retaliate against advocates such as

petitioner, so that it will be free to further profit from

federal financial assistance and to engaged in

prohibited dumping when injunctive relief is sought

in the federal court. The five malicious transfers of

Melaragno was a transparent ploy to attempt to

deprive the court of jurisdiction.

Melaragno’s death does not render prospective

injunctive relief impossible including barring

Providence’s access to federal financial assistance

and contribution from Melaragno’s successor.

Therefore there is an imminent threat of further

injury. The capable of repetition yet evade review

standard applies even if person is no longer affected

by the action. See Turner v. Rogers, 131 S.Ct. 2507,

2514 (2011). Here the challenged action was in its

duration too short to be fully litigated in light of the

short statutory expiration period for designation of

20

health care surrogates. Petitioner as a professional

disability advocate would be subject to the same

action again. Since Melaragno’s successor holds the

surviving claims of Melaragno, in practical effect, the

same complaining party would be subject to the same

action again (i.e. the demands for federal financial

assistance for unauthorized services and services in

violation of federal law). See Lawrence v. Blackwell,

430 F.3d 368, 370-71 (6th Cir. 2005).

II.

Certiorari Should Be Granted To Resolve

Conflicting Authorities Among Circuit Courts

On The Nature Of The Injuries A Non-Disabled

Person Must Establish To Maintain Valid And

Important Claims For Injunctive Relief

This court should resolve the conflict among

circuit courts concerning the nature of the injury

that a non-disabled person must established on

injunctive relief claims.

The Second Circuit in Loeffler v. Staten Island

University Hosp., 582 F.3d 268, 279 (2nd Cir. 2009)

held that children of a disabled person had standing

under the Rehabilitation Act to bring associational

discrimination claims against hospital. In particular

it held that “non-disabled parties bringing

associational discrimination claims need only prove

an independent injury causally related to the denial

of federally required services to the disabled persons

who home the non-disabled persons are associated.”

Id. 279. Petitioner is a professional disability

advocate who has been and currently provides

21

services in the disability community and has

standing to continue with the claims for injunctive

relief. 7 Petitioner is also a family member,

designated statutory health care surrogate, and an

agent designated in the advance care directive. The

plain language of 29 U.S.C. § 794 (a) “evinces a

congressional intention to define standing to bring a

private action under the [RA]…as broadly as is

permitted by Article III of the Constitution. Loeffler

at 280.

The Eleventh Circuit in McCullum v. Orlando

Reg’l Healthcare Sys. Inc., 768 F.3d 1135, 1142 (11th

Cir.) rejects Loeffler and sets forth a standard under

both the ADA and Rehabilitation Act that a “nondisabled person has standing to seek relief under

either statute only if they alleged that they were

personally excluded, personally denied benefits, or

personally discriminated because of their association

with a disabled person.” Id. at 1143. However, the

language of both statutes is not the same and this is

a point that cannot be ignored. McCullom does not

comport with the clear congressional intent or the

plain language of the statute. The Rehabilitation Act

extends its remedies to “any person aggrieved” by

discrimination of a person on the basis of his or her

disability. 29 U.S.C. § 794a (a)(2).

7 Dkt 9-6 BS 767 ¶6 fn 1.

Petitioner was formerly the director

of the Disability Mediation Center at Loyola Law School and

practices law in the area of disability rights.

22

The use of the broad language in 29 U.S.C. §

794 is consistent with the congressional intent. See

Innovative Health Systems, Inc., 117 F.3d 37, 46 (2nd

Cir. 1997)(standing of non-disabled persons to

preliminary injunction under ADA and

Rehabilitation Act). Other Circuits have allowed

non-disabled individuals to bring claims for

retaliation against persons providing disability

services. Addiction Specialist, Inc. v. Township Of

Hampton, 411 F.3d 399 (3rd Cir. 2005) (ADA and

Rehabilitation Act allows non-disabled individuals to

bring claims based on their association with disabled

individuals).8

This court should grant certiorari because the

Eleventh Circuit’s decision in McCullum disregards

the plain language and policy behind the

Rehabilitation Act. This decision combined with the

Ninth Circuit’s approach of eliminating appellate

review if the disabled person dies is completely

inconsistent with the policies and goals of both the

Rehabilitation Act and the ADA.

8 Discrimination and retaliation against persons providing

professional or advocacy services to persons with disabilities is

prohibited under the ADA and the Rehabilitation Act. Id at 47

n. 14.

23

III. Certiorari Should Be Granted Because

The Ninth Circuit’s Approach In Determining

Lack Of Jurisdiction Significantly Disregards

The Controlling Authorities Of This Court In

Carson v. American Brands, Inc., Gillespie v.

United States Steel Corp., And Cohen v.

Beneficial Indus. Loan Corp.

The October 19, 2018 order indicates that

there is no appeal from the denial of the motions for

temporary retraining order and injunctive relief

based on mootness citing to People of Village of

Gambell v. Babbitt, 999 F.2d 403, 406 (9th Cir. 1993).

(App. 2). As discussed above there is a live

controversy and petitioner has standing to bring the

appeal. The October 19, 2018 order construes the

remaining orders on appeal as if the appeal

concerned a challenge to the order denying entry of

default. (App. 2-3). However, this is not the case.

Misconstruing the orders at issue on appeal, the

Ninth Circuit disregards the authorities of this court

in concluding there is a lack of jurisdiction.

Inc.

1.

Carson v. American Brands,

Patients and the persons they designate as

statutory health care surrogates in hospital

emergency rooms must have the ability to effectively

challenge interlocutory orders of serious and

irreparable consequences. Given the-60 day

expiration period under California Probate Code §

4711 there is little opportunity to stop irreparable

harm (including the ultimate harm of death) without

24

allowing interlocutory review.

Under 28 U.S.C. § 1292 (a) there is

jurisdiction because the appeal furthers the

statutory purpose of permitting the parties to

effectually challenge interlocutory orders of serious

and irreparable consequences. Carson v. American

Brands, Inc. 450 U.S. 79, 84 (1981). In Carson this

court construed an order declining to enter a

proposed consent decree as an appealable order

refusing to grant an injunction because delay in

review of the order would cause irreparable harm.

Once a person with a communication disability is

denied access to a designated health care surrogate

and to medical records to control decisions as to

health care, there is a need for immediate injunctive

relief. The inability to communicate, to speak, places

them at grave risk. The designated representative or

health care surrogate has an independent injury due

to their duty to provide services and due to the

denial of access, programs, and services required in

the accommodation process. Under the Carson

standard the appeal furthers the statutory purpose

of permitting an effective challenge to discriminatory

policies that cause grave injury. Whether

considering the initial request for an immediate

temporary restraining order or the later outright

request for an immediate injunction, or the

extremely short duration of the statutory

designation, the denial of all relief and the statutory

protection authorized under federal law is implied.

See Miller v. Lehman, 736 F.2d 1268, 1269 (9th Cir.

1983), See also Build of Buffalo, Inc. v. Sedita, 441

25

F.2d 284, 286 (2nd Cir. 1971) (the order contracted

the scope of injunctive relief originally sought or

affected the quality of the relief prayed for by the

plaintiffs). The October 19, 2018 order to show cause

did not direct petitioner to address any issue of

mootness. (App. 4-6).9 The sole focus was whether

the Ninth Circuit lacked jurisdiction over the appeal

based on the clerk’s suggestion that the challenged

orders did not appear to be final or appealable.

Petitioner filed an excerpts of record in response to

the order to show cause because it was clear under

the authorities of this court the challenged orders

were appealable as denials of injunctive relief. The

orders also met the requirement of finality or were

governed under the collateral order exception to the

final judgment rule.

Steel Corp

2.

Gillespie v. United States

In determining the issue of finality under 28

U.S.C. § 1291 this court’s decision in Gillespie v.

United States Steel Corp., 379 U.S. 148 (1964)

focused on whether there was a danger of denying

justice by delay. The District Court failed to rule on

requests to toll the 60-day limitation period under

California Probate Code § 4711 and without a

reasonable justification caused unreasonable

obstacles in light of uncontested showing of serious

and irreparable harm. (i.e. focusing on a non-issue

concerning Melaragno’s advance care directive which

9

See response to order to show cause at Dkt 9-1 to 9-6, 10, 11

26

on its face was irrelevant because it was not in effect

and Cal. Probate Code § 4711 had priority,

disregarding that Providence never directly

contested a statutory designation of health care

surrogacy, insisting that new motions be filed during

an emergency rather than issuing an order to show

cause, disregarding that all immediate family

members were being barred access to the hospital,

disregarding that the attorneys purporting to be “of

record” were claiming they did not represent the

named defendant, and that without a protective

order the local rules of court would force the

plaintiffs to serve confidential information to persons

who were stating that they did not represent the

named defendant in the case.

Without timely and effective relief within the

short period specified in Probate Code § 4711 (b)

persons with communication disabilities cannot

effectuate mandatory disability accommodations or

reach effective assistance by their chosen surrogates

to act on their behalf. Under the Gillespie factors (1)

the inconvenience and costs of piecemeal review, and

(2) the danger of denying justice, the orders

challenged on appeal were in practical effect a

decision on the merits. Without the requested

injunctive relief Melaragno would die and did die, in

the face of undisputed evidence concerning her

designation of surrogates in the emergency room.

The continuing policies of defendant in refusing to

accommodate persons with disabilities, its intent to

keep ventilator and tracheostomy patients abusively

hostage in their facility and related facilities for

27

billing purposes, cannot be abated to avoid serious

harm. Gillespie factors there was in practical effect

a decision on the merits.

Corp.

3.

Cohen v. Beneficial Indus v. Loan

The challenged orders on appeal also involve

matters that conclusively determined disputed

questions, resolved important questions completely

separate from the merits of the action, and the

matters are effectively unreviewable on appeal from

a final judgment in the case. Therefore there exists a

collateral order exception to the final judgment rule.

See Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541, 545-547 (1949). The appeal involves the

orders on the notice of appearance of counsel (which

allowed appearances without a signed substitution of

counsel signed by defendant Providence Health &

Services). It also involves the court’s refusal to enter

a protective order because its rulings combined with

the requirements of the local rules of court required

and involuntary waiver of medical confidentiality by

service of confidential medical records and

information on persons that were not yet counsel of

record or to counsel who were vigorously claiming

that they were NOT counsel of record for the

defendant in the action.

These issues are “too important to be denied

review and too independent of the cause itself to

require that appellate consideration be deferred until

the whole case is adjudicated.” Id at 546. The

October 19, 2018 order neither mentions the

28

challenged orders of exceptional importance nor

mentions the collateral order exception. Petitioner

identified the issues as follows:

a.

California Probate Code

§4711 (d) Has Priority Over And An Advance Care

Directive As A Matter Of Law.

The September 14 and 22, 2017 and October

17, 2017 orders essentially ordered that plaintiffs

had to prove that Melaragno’s advance care directive

was in effect when (1) this was not an issue in the

case, (2) there was no evidence or opposition

presented by the defendant in response to the

requested injunction, (3) defendant’s answer

ultimately filed never asserted that the advance care

directive was a defense to any cause of action, (4) by

its plain terms California Probate Code § 4711 (d)

specifies that a health care surrogate designation

has priority over an advance care directive, and (5)

no advance care directive was in effect or could be in

effect because there was no such determination by

the physician designated in the advance care

directive by Melaragno. (App. 7-54). By disregard of

plain language of Probate Code § 4711 and

Melaragno’s advance care directive, the court

conclusively determined that there was an advance

care directive in effect and inferred this was related

to Melaragno’s statutory designated surrogates.

Additionally it continued to erroneously refer to

Melaragno’s elderly sister who was dying when the

advance care directive was not in effect ultimately

leading to this sister joining with the plaintiffs in a

29

Medicare appeal. The orders of the District Court

caused unreasonable delay, confusion, and resolved

important questions completely separate from the

merits. The orders are unreviewable on appeal

because the designation of surrogacy had a 60-day

expiration period.

b.

The Requirement Of

Authority To Appear In The Case As Counsel Of

Record And Proper Disclosure Of The Client The

Attorney Purports To Represent

The District Court made orders concerning the

appearances of attorneys in the case that claimed to

represent a non-party corporate defendant. These

orders are appealable orders under the collateral

order doctrine. The October 19, 2018 order infers

that the appeal is from an order denying a motion for

default when this is not the case. Motions for

substitution and withdrawal of attorneys were

submitted to the court but not approved. In part, the

proposed orders were not approved because there

was an effort to use the proceedings as a method to

substitute a different corporate defendant into the

case. (See Dkt 9-4 BS 49-56). Despite the lack of an

order approving substitution of attorneys,

unauthorized attorneys continued to make filings in

the case. In the Ninth Circuit the corporate

disclosure statement filed directly contradicts the

corporate disclosure statement filed in the district

court. (See Dkt 13, 20). The orders of the District

Court resolved important questions of law about the

authority of the acting attorneys and disclosures and

30

authorizations filed by these attorneys. The issue is

important because during the entire period of the

plaintiffs were seeking emergency injunctive relief

there was no proper substitution of attorney in effect

to determine which attorney for Providence had

proper authority in the case. A substitution of

counsel not only protects the alleged represented

client, but also other parties and counsel in the

proceedings. The orders are effectively unreviewable

on appeal, and are directly related to delays that

hampered the ability of the plaintiffs to obtain the

requested relief prior to Melaragno’s death.

c.

The District Court Sealing

Orders And Local Rules That Conflict With the

Requirements Of HIPAA

Petitioner requested that the District Court

enter a HIPAA protective order and other protective

order as to confidential documents including medical

records pertaining to Melaragno. It did not enter the

requested protective order and instead simply

ordered the documents could be sealed. However,

such order did not prevent the disclosure and further

circulation that would be allowed by the District

Court Local Rule 79-5.3. The local rules of court

required service of sealed documents on opposing

counsel, the opposing counsel in the case had not

obtained a substitution order and did not actually

represent the named defendant, and he was refusing

to meet and confer about a protective order.

31

HIPAA and other law provides for a protective

order as to patient medical records (i.e. 45 CFR

164.512 (e)) and other confidential material. The

local rules of the district court (Rule 79-5.3) (service

of documents filed under seal) causes of gap in

protection against disclosure afforded under HIPAA

and other applicable law by allowing the circulation

of confidential information prior to a court’s ruling on

a request for protective order. Here there was a

genuine question regarding who was claiming to be

counsel of record for the defendant. Petitioners

submitted confidential material under seal for in

camera review with a simultaneous request for a

qualified HIPAA protective order. This approach was

required in order to prevent involuntary or coerced

waivers of confidentiality. The ruling of the district

court conclusively determined a disputed question

and it resolved an important question separate from

the merits of the case. Parties and their counsel

should not be coerced to abandon valid protections

afforded by HIPAA and the constitutional right of

privacy. These matters would be effectively

unreviewable on appeal from a final judgment and

governed the collateral order exception to the final

judgment rule.

32

__________w__________

CONCLUSION

For the above and foregoing reasons,

Petitioners respectfully request issuance of a writ of

certiorari to the United States Court of Appeals for

the Ninth Circuit.

Dated: February 19, 2019

Respectfully Submitted,

Nina R. Ringgold

Counsel of Record

Law Offices of Nina R. Ringgold

17901 Malden St.

Northridge, CA 91325

Telephone: (818) 773-2409

App. 1

APPENDIX A

FILED OCT 19 2018

Molly C. Dwyer, Clerk

U.S. Court of Appeals

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 17-56742

D.C. No. 2:17-cv-06296-SJO-SK

Central District of California, Los Angeles

ORDER

EDDYE MELARAGNO, By and Through Her Agent

Under Durable Power of Attorney, and NINA

RINGGOLD, in the Capacity As A Named Agent

Under Advance Health Care Directive And In Her

Individual Capacity,

Plaintiff-Appellants,

v.

PROVIDENCE HEALTH & SERVICES,

and

Defendant-Appellee,

App. 2

DOES, 1-10,

Defendant.

Before: O'SCANNLAIN, BERZON, and IKUTA,

Circuit Judges.

A review of the record demonstrates

that the appeal from the denials of

appellants’ motions for a temporary

restraining order is moot. See People of

Village of Gambell v. Babbitt, 999 F.2d 403,

406 (9th Cir. 1993) (claim is moot if there no

longer exists a present controversy for

which relief can be granted).

A review of the record and the

parties’ responses to this court’s November

28, 2017 order to show cause demonstrates

that this court lacks jurisdiction over the

remaining orders challenged in this appeal

because they are not final or appealable.

See 28 U.S.C. § 1291; see also Green v.

Occidental Petroleum Corp., 541 F.2d 1335,

1338 (9th Cir. 1976) (district court must be

“of the opinion” that the criteria of section

1292(b) are met; court of appeals is without

authority to assume an appeal

unilaterally); Bird v. Reese, 875 F.2d 256

(9th Cir. 1989) (order) (order denying a

App. 3

motion for default judgment is not a final

appealable order).

Accordingly, this appeal is

dismissed as moot, in part, and for

lack of jurisdiction, in part.

All pending motions are denied.

DISMISSED.

App. 4

APPENDIX B

FILED NOV 28 2017

Molly C. Dwyer, Clerk

U.S. Court of Appeals

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 17-56742

D.C. No. 2:17-cv-06296-SJO-SK

Central District of California, Los Angeles

ORDER

EDDYE MELARAGNO, By and Through Her Agent

Under Durable Power of Attorney, and NINA

RINGGOLD, in the Capacity As A Named Agent

Under Advance Health Care Directive And In Her

Individual Capacity,

Plaintiff-Appellants,

v.

PROVIDENCE HEALTH & SERVICES,

and

Defendant-Appellee,

App. 5

DOES, 1-10,

Defendant.

A review of the record suggests that

this court may lack jurisdiction over the

appeal because the orders challenged in the

appeal do not appear to be final or

appealable. See 28 U.S.C. § 1291; Religious

Tech. Ctr. v. Scott, 869 F.2d 1306 (9th Cir.

1989) (denial of temporary restraining order

is appealable only if the denial is tantamount

to the denial of a preliminary injunction);

Branson v. City of Los Angeles, 912 F.2d 334,

336 (9th Cir. 1990) (denial of reconsideration

of non- appealable order is itself not

appealable); see also Green v. Occidental

Petroleum Corp., 541 F.2d 1335, 1338 (9th

Cir. 1976) (district court must be “of the

opinion” that the critera of section 1292(b)

are met; court of appeals is without authority

to assume an appeal unilaterally); Bird v.

Reese, 875 F.2d 256 (9th Cir. 1989) (order)

(order denying a motion for default judgment

is not a final appealable order).

Within 21 days after the date of this

order, appellants shall move for voluntary

dismissal of the appeal or show cause why it

should not be dismissed for lack of

jurisdiction. If appellants elect to show cause,

App. 6

a response may be filed within 10 days after

service of the memorandum.

If appellants do not comply with this

order, the Clerk shall dismiss this appeal

pursuant to Ninth Circuit Rule 42-1.

Briefing is suspended and all

pending motions are stayed pending

further order of the court.

FOR THE COURT:

MOLLY C. CWYER

CLERK OF COURT

By: Monica Fernandez

Deputy Clerk

Ninth Circuit Rule 27-7

App. 7

APPENDIX C

UNITED STATES DISTRICT COURT CENTRAL

DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. CV 17-06296 SJO (SK)

Date: September 14, 2017

Title: Eddye Melaragno et al v. Providence Health &

Services et al.

_________________________________________________

Present: THE HONORABLE S. JAMES OTERO,

UNITED STATES DISTRICT JUDGE

Victor Paul Cruz

Courtroom Clerk

Not Present

Court Reporter

COUNSEL PRESENT FOR PLAINTIFFS:

Not Present

COUNSEL PRESENT FOR DEFENDANTS:

Not present

_________________________________________________

App. 8

PROCEEDINGS (in chambers): ORDER

DENYING PLAINTIFFS' EX PARTE

APPLICATION FOR TEMPORARY

RESTRAINING ORDER, PROTECTIVE ORDER,

AND ORDER TO SHOW CAUSE RE

PRELIMINARY INJUNCTION [Docket No. 11]

This matter is before the Court on Plaintiffs’ Ex Parte

Application for Temporary Restraining Order,

Protective Order, and Order to Show Cause re

Preliminary Injunction, filed August 29, 2017.

Defendants Providence Health & Services have

filed a declaration through their attorney on

September 1, 2017, but have not otherwise opposed

the Application. For the following reasons, the

Court DENIES Plaintiffs' Application.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A.

Procedural History

On August 25, 2017, Plaintiff Nina Ringgold, in her

individual capacity and on behalf of her mother,

Plaintiff Eddye Melaragno, filed a Complaint

against Defendants, asserting the following ten

causes of action: (1) injunctive, declaratory, and

equitable relief; (2) Violation of § 504 of the

App. 9

Rehabilitation Act of 1973; (3) Violation of Title II

of the Americans with Disabilities Act; (4-5)

Violation of Federal Civil Rights Protections; (6)

Violation of the California Disabled persons Act; (78) Violation of California Civil Rights Protections;

and (9-10) Intentional and Negligent Infliction of

Emotional Distress. (See generally Compl., ECF

No. 1.)

On August 29, 2017, Plaintiffs filed the current

Application seeking a temporary restraining order

and a protective order. On September 1, 2017,

Defendants filed the Declaration of Michael J.

Elsberry (“Elsberry Decl.”) asserting that the

Application was moot and should be denied. (ECF

No. 19.) On September 11, 2017, Plaintiffs filed a

motion to strike the Elsberry Declaration. (ECF No.

26.)

1.

The Parties

Plaintiff Eddye Melaragno is an 84 year old

patient currently receiving treatment in

Providence Tarzana Medical Center. (Compl. ¶¶ 5,

10; Decl. Req. by Court ¶ 2.) She filed the current

action by and through her Agent under durable

power of attorney. Ms. Ringgold is Ms. Melaragno’s

daughter and asserts to be a Named Agent under

Ms. Melaragno’s Advanced Health Care Directive.

(Compl. ¶ 6.)

App. 10

Providence Health & Services (“Providence”), in

turn, is a foreign nonprofit incorporated in the

state of Washington and registered with the

California Secretary of State. (Compl. ¶ 4.)

2.

Designation of Medical DecisionMakers

On August 11, 2017, Ms. Melaragno reported to

the emergency room of Defendant’s hospital.

(Compl. ¶ 10.) The immediate cause of her

emergency room visit is not apparent from the

complaint she has a long and complex medical

history, suffering from a variety of ailments,

including severe bedsores, sensitivity to certain

medications, and the use of a ventilator. (Compl. ¶

11.) Most notably, Ms. Melaragno also has a cuffed

tracheostomy tube that renders her unable to

communicate verbally unless the balloon is

deflated. (Compl.¶ 10.)

Ms. Melaragno has two separate documents that

designate Agents to act on her behalf. First, is a

durable power of attorney under which she has

designated her grandson as her Durable Agent.

(Compl. ¶ 15.) The second is an advance health care

directive (“Directive”) which designates her sister,

Clara Adkins, as the primary Agent, and Ms.

Ringgold as the second-named Agent. (Id.) In

addition to these two documents, Ms. Melaragno,

in response to a request from a hospital admissions

employee, designated through non-verbal means

App. 11

that Ms. Ringgold and her son were to be her

surrogates with the ability to make medical

decisions on her behalf. (Compl. ¶ 11.) Defendant’s

employees failed to record this designation in the

medical record. (Compl. ¶ 11.) Ms. Ringgold then

requested that the hospital admissions employee

deflate the balloon on Ms. Melaragno’s

tracheostomy tube to allow her to verbally

communicate her wishes, but the employee stated

that this would not be necessary. (Compl. ¶ 11.)

Over the course of the weeks following Ms.

Melaragno’s admission to Defendant’s hospital, Ms.

Ringgold has become increasingly concerned with

the medical treatment her mother is receiving. She

objects, among other things, to the diagnoses of

certain medical conditions, the pharmaceutical

regimen prescribed, and medical procedures

performed. (Compl. ¶ 16.) Her son, acting as

Durable Agent, requested a copy of Ms.

Melaragno’s medical records. (Compl. ¶ 15.)

Defendant informed Plaintiffs that this request

triggered the Directive and that all medical decisions

going forward would need to be made by Ms.

Adkins, the primary Agent designated in that

document. (Compl. ¶ 15.) Defendant has since

refused to provide Ms. Ringgold and her son with

information regarding Ms. Melaragno’s medical

condition. (Compl. ¶ 15.) Plaintiffs dispute this and

contend that Ms. Melaragno is capable and

competent to make her own decisions, both

App. 12

verbally and non-verbally, and that the directive

should not be in effect. (Compl. ¶ 15.)

II.

DISCUSSION

In their Application, Plaintiffs asks the Court to

issue a temporary restraining order ("TRO"), a

protective order regarding the preservation of

evidence (“PO”), and an order to show cause

("OSC") regarding why a preliminary injunction

should not issue that:

(1)

(2)

(3)

(4)

would require Defendant to

provide accommodations to

persons with communication

related disabilities to allow

them to designate surrogates;

would require Defendant to

provide medical records and

information to durable agents

or other surrogates when the

patient is disabled and unable

to physically communicate with

the medical records

department;

would bar Defendant from

considering a communication

disability as a lack of capacity;

would bar Defendant from

giving effect to an advance

health care directive when

there is a designation of

surrogate by non-verbal means

App. 13

(5)

(6)

(7)

by a person with a

communication-related

disability;

would bar Defendant from

administering medication and

medical procedures to persons

with communication

disabilities while disregarding

their designated surrogates

and submitting Medicare and

Medicaid claims;

would require Defendant to

engage in effective

communication with persons

having disabilities by providing

reasonable accommodations

and permitting the designation

of surrogates, particularly when

the surrogate is present and

actively engaged in the day-today care of the person with a

disability;

would bar Defendant from

administering medication and

procedures to a person with a

communication disability

without providing reasonable

accommodation necessary for

effective communication and in

disregard of non-verbal

designation of surrogates;

App. 14

(8)

would bar Defendant from

discriminatory retaliation,

surveillance, intimidation, and

racial stereotyping as a means

to frustrate the equal rights of

persons with disabilities and

racial minorities.

(Appl. 2-4, ECF No. 11-6.)

The immediate relief sought by the TRO is notably

more narrow, requiring Defendant to:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

permit Ms. Ringgold access to Ms.

Melaragno’s medical records;

disregard the advance healthcare

directive and cease any treatments not

authorized by Plaintiffs;

discharge Ms. Melaragno to her home

along with the necessary equipment

and supplies for her care;

continue to provide the same level of

service and supplies to Ms. Melaragno;

provide basic life support transport for

any transportation between facilities;

preserve all evidence which relates to

these proceedings; and

cease the surveillance of Plaintiffs

within the hospital and permit them

to have free access.

App. 15

A.

Legal Standard for Issuing a

Temporary Restraining Order

Injunctive relief is "an extraordinary remedy that

may only be awarded upon a clear showing that the

plaintiff is entitled to such relief." Winter v. Nat'l

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). "A

plaintiff seeking a preliminary injunction must

establish (1) that he is likely to succeed on the

merits, (2) that he is likely to suffer irreparable

harm in the absence of preliminary relief, (3) that

the balance of equities tips in his favor, and (4)

that an injunction is in the public interest." Toyo

Tire Holdings of Americas Inc. v. Continental Tire

N. Am., Inc., 609 F.3d 975, 982 (9th Cir. 2010)

(citing Winter, 555 U.S. at 7). The legal standard

for obtaining a temporary restraining order

("TRO") is the same as that for a preliminary

injunction. See Lockheed Missile & Space Co. v.

Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D.

Cal. 1995).

To grant preliminary injunctive relief, a court must

find that "a certain threshold showing is made on

each factor." Leiva-Perez v. Holder, 640 F.3d 962,

966 (9th Cir. 2011). Provided such a showing is

made, in balancing the four factors, "'serious

questions going to the merits' and a balance of

hardships that tips sharply towards the plaintiff

can support issuance of a preliminary injunction, so

long as the plaintiff also shows that there is a

likelihood of irreparable injury and that the

App. 16

injunction is in the public interest." Alliance for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

Cir. 2011).

The Ninth Circuit has long recognized the authority

of district courts "to issue equitable relief in aid of

arbitration." Toyo, 609 F.3d at 980 (citing PMS

Distributing Co. v. Huber & Suhner, A.G., 863 F.2d

639, 642 (9th Cir. 1988)). Indeed "a district court

may issue interim injunctive relief on arbitrable

claims if interim relief is necessary to preserve the

status quo and the meaningfulness of the

arbitration process—provided, of course, that the

requirements for granting injunctive relief are

otherwise satisfied." Id. at 981.

B.

Analysis

Plaintiffs' Application is deficient in several

respects, and must therefore be denied. As a

preliminary matter, the Court acknowledges that

decisions regarding the medical care of an elderly

patient are serious and may have significant

consequences. It further acknowledges that an

individual’s ability to make such decisions for

themselves is important right. As such this case does

present a risk of irreparable harm.

Plaintiffs, however, have failed to demonstrate a

significant likelihood of success on the merits of

their various claims. The majority of claims in this

case relate to discrimination on the basis of race

and disability. The Complaint does not allege

App. 17

specific facts sufficient to demonstrate racial

discrimination on the part of Defendant and

provides minimal factual support for the claim

that Defendants have failed to accommodate Ms.

Melaragno’s disability. In both cases, Plaintiffs have

failed to meet their burden of showing a significant

likelihood of success on the merits of their claims.

Additionally, despite the voluminous factual

record, Plaintiffs have not provided the Court with

copies of the two documents central to the

determination in this case–the durable power of

attorney and the advance health care directive.

Plaintiffs contend that this failure is due to the lack

of a protective order and, on September 11, 2017

requested In Camera review of these documents.

In Camera review is not necessary in this case and

Plaintiffs may file these documents under seal for

the Court’s review.

Third, the balance of equities does not tilt in favor

of Plaintiffs in this case. In designating Ms. Adkins

as the primary decision-maker in her advance

health care directive, Ms. Malaragno indicated

trust in her sister to make serious healthcarerelated decisions on her behalf. While Ms. Ringgold

may disagree with those decisions, the entry of an

ex parte TRO mandating that Defendants set aside

the Directive and respond solely to the direction of

Ms. Ringgold would not be equitable to Defendants

who are responsible for determining and honoring

the instructions of their patients.

App. 18

Fourth, the denial of a TRO in this case aligns

with the interest of the public. Plaintiffs correctly

contend that the public has an interest in

permitting individuals to make important medical

decisions for themselves. Granting the requested

TRO, however, would not necessarily serve this

interest because an ex parte hearing would not

permit the Court to determine Ms. Melaragno’s

own wishes regarding her healthcare.

As a final matter, the Court notes that many of the

allegations in the Complaint and its accompanying

declarations appear to be directed at UCLA

hospital and requests that Plaintiffs provide

information regarding the relationship, if any,

between those allegations and the Defendant in the

current action.

In sum, while the autonomy of an individual to

make their own medical decisions is important,

Plaintiffs have failed to show that granting a TRO

is more likely to align with Ms. Melaragno’s wishes

than its denial. In addition, Plaintiffs have failed to

demonstrate a likelihood of success on the merits of

their claims. Because Plaintiffs have failed to meet

their burden of establishing the four preliminary

injunction factors, the Court DENIES Plaintiffs'

Application.

Plaintiffs are permitted to seek injunctive relief in

the form of a preliminary injunction, but must

App. 19

provide notice and opportunity for all interested

parties to be heard, including Clara Adkins, Ms.

Melaragno’s primary Agent designated under her

advance health care directive.

III.

RULING

For the foregoing reasons, the Court DENIES

Plaintiffs EDDYE MELARAGNO AND NINA

RINGGOLD’S Ex Parte Application for (1) Temporary

Restraining Order; (2) Protective Order; and (3) OSC

re Preliminary Injunction. The Court further

DENIES Plaintiff’s request for In Camera Review

and requests that these documents be filed under

seal.

IT IS SO ORDERED.

App. 20

APPENDIX D

UNITED STATES DISTRICT COURT CENTRAL

DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. CV 17-06296 SJO (SK)

Date: September 22, 2017

Title: Eddye Melaragno et al v. Providence Health &

Services et al.

_________________________________________________

Present: THE HONORABLE S. JAMES OTERO,

UNITED STATES DISTRICT JUDGE

Victor Paul Cruz

Courtroom Clerk

Not Present

Court Reporter

COUNSEL PRESENT FOR PLAINTIFFS:

Not Present

COUNSEL PRESENT FOR DEFENDANTS:

Not present

_________________________________________________

App. 21

PROCEEDINGS (in chambers): ORDER

DENYING PLAINTIFFS' EX PARTE

APPLICATION FOR TEMPORARY

RESTRAINING ORDER, PROTECTIVE ORDER,

AND ORDER TO SHOW CAUSE RE

PRELIMINARY INJUNCTION [Docket No. 37]

This matter is before the Court on Plaintiffs’ Ex Parte

Application for Temporary Restraining Order,

Protective Order, and Order to Show Cause re

Preliminary Injunction, filed September 19, 2017.

For the following reasons, the Court DENIES

Plaintiffs' Application.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A.

Procedural History

On August 25, 2017, Plaintiff Nina Ringgold, in her

individual capacity and on behalf of her mother,

Plaintiff Eddye Melaragno, filed a Complaint

against Defendant, Providence Health & Services,

asserting the following ten causes of action: (1)

injunctive, declaratory, and equitable relief; (2)

Violation of § 504 of the Rehabilitation Act of 1973;

(3) Violation of Title II of the Americans with

Disabilities Act; (4-5) Violation of Federal Civil

Rights Protections; (6) Violation of the California

Disabled persons Act; (7-8) Violation of California

App. 22

Civil Rights Protections; and (9-10) Intentional and

Negligent Infliction of Emotional Distress. (See

generally Compl., ECF No. 1.)

On August 29, 2017, Plaintiffs filed an initial

Application seeking a temporary restraining order

and a protective order. (ECF No. 11.) On

September 14, 2017, this Court issued an order

denying the initial TRO. (ECF No. 33.) Defendant

filed an Answer on September 18, 2017 disputing

these claims and asserting numerous affirmative

defenses. (ECF No. 36.)

B.

Factual Allegations

1.

The Parties

Plaintiff Eddye Melaragno is an 84 year old

patient currently receiving treatment in

Providence Tarzana Medical Center. (Compl. ¶¶ 5,

10; Decl. Req. by Court ¶ 2.) She filed the current

action by and through her Agent under durable

power of attorney. Ms. Ringgold is Ms. Melaragno’s

daughter and asserts to be a Named Agent under

Ms. Melaragno’s Advanced Health Care Directive.

(Compl. ¶ 6.)

Providence Health & Services (“Providence”), in

turn, is a foreign nonprofit incorporated in the

state of Washington and registered with the

California Secretary of State. (Compl. ¶ 4.)

App. 23

2.

Designation of Medical DecisionMakers

On August 11, 2017, Ms. Melaragno reported to

the emergency room of Defendant’s hospital.

(Compl. ¶ 10.) The immediate cause of her

emergency room visit is not apparent from the

complaint she has a long and complex medical

history, suffering from a variety of ailments,

including severe bedsores, sensitivity to certain

medications, and the use of a ventilator. (Compl. ¶

11.) Most notably, Ms. Melaragno also has a cuffed

tracheostomy tube that renders her unable to

communicate verbally unless the balloon is

deflated. (Compl.¶ 10.)

Ms. Melaragno has two separate documents that

designate Agents to act on her behalf. First, is a

durable power of attorney under which she has

designated her grandson as her Durable Agent.

(Compl. ¶ 15.) The second is an advance health care

directive (“Directive”) which designates her sister,

Clara Adkins, as the primary Agent, and Ms.

Ringgold as the second-named Agent. (Id.) In

addition to these two documents, Ms. Melaragno,

in response to a request from a hospital admissions

employee, designated through non-verbal means

that Ms. Ringgold and her son were to be her

surrogates with the ability to make medical

decisions on her behalf. (Compl. ¶ 11.) Defendant’s

employees failed to record this designation in the

medical record. (Compl. ¶ 11.) Ms. Ringgold then

App. 24

requested that the hospital admissions employee

deflate the balloon on Ms. Melaragno’s

tracheostomy tube to allow her to verbally

communicate her wishes, but the employee stated

that this would not be necessary. (Compl. ¶ 11.)

Over the course of the weeks following Ms.

Melaragno’s admission to Defendant’s hospital, Ms.

Ringgold has become increasingly concerned with

the medical treatment her mother is receiving. She

objects, among other things, to the diagnoses of

certain medical conditions, the pharmaceutical

regimen prescribed, and medical procedures

performed. (Compl. ¶ 16.) Her son, acting as

Durable Agent, requested a copy of Ms.

Melaragno’s medical records. (Compl. ¶ 15.)

Defendant informed Plaintiffs that this request

triggered the Directive and that all medical decisions

going forward would need to be made by Ms.

Adkins, the primary Agent designated in that

document. (Compl. ¶ 15.) Defendant has since

refused to provide Ms. Ringgold and her son with

information regarding Ms. Melaragno’s medical

condition. (Compl. ¶ 15.) Plaintiffs dispute this and

contend that Ms. Melaragno is capable and

competent to make her own decisions, both

verbally and non-verbally, and that the directive

should not be in effect. (Compl. ¶ 15.)

Since the filing of the initial TRO, Ms. Melaragno

has been transferred between multiple of

Defendant’s facilities and Defendant is refusing to

App. 25

provide Plaintiffs with information regarding her

current location. (Further Decl. Req. by Court ¶ 3.)

They have further denied Ms. Ringgold and her

son access to Ms. Melaragno or her healthcare

providers. (Further Decl. Req. by Court ¶ 3; Decl.

Of Matthew Melaragno ¶4.) Plaintiffs have

provided no information regarding attempts to

provide notice to Ms. Adkins of the current

Application.

II.

DISCUSSION

In this Application, Plaintiffs again ask the Court to

issue a TRO requiring Defendant to: (1) inform

Plaintiffs, Ms. Melaragno’s “Care Partner Team,”

and Ms. Melaragno’s family of her current location

and (2) permit Plaintiffs, Ms. Melaragno’s “Care

Partner Team,” and Ms. Melaragno’s family to

have 24 hour access and free communication with

her.

A.

Legal Standard for Issuing a

Temporary Restraining Order

Injunctive relief is "an extraordinary remedy that

may only be awarded upon a clear showing that the

plaintiff is entitled to such relief." Winter v. Nat'l

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). "A

plaintiff seeking a preliminary injunction must

establish (1) that he is likely to succeed on the

merits, (2) that he is likely to suffer irreparable

harm in the absence of preliminary relief, (3) that

the balance of equities tips in his favor, and (4)

that an injunction is in the public interest." Toyo

App. 26

Tire Holdings of Americas Inc. v. Continental Tire

N. Am., Inc., 609 F.3d 975, 982 (9th Cir. 2010)

(citing Winter, 555 U.S. at 7). The legal standard

for obtaining a temporary restraining order

("TRO") is the same as that for a preliminary

injunction. See Lockheed Missile & Space Co. v.

Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D.

Cal. 1995).

To grant preliminary injunctive relief, a court must

find that "a certain threshold showing is made on

each factor." Leiva-Perez v. Holder, 640 F.3d 962,

966 (9th Cir. 2011). Provided such a showing is

made, in balancing the four factors, "'serious

questions going to the merits' and a balance of

hardships that tips sharply towards the plaintiff

can support issuance of a preliminary injunction, so

long as the plaintiff also shows that there is a

likelihood of irreparable injury and that the

injunction is in the public interest." Alliance for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

Cir. 2011).

The Ninth Circuit has long recognized the authority

of district courts "to issue equitable relief in aid of

arbitration." Toyo, 609 F.3d at 980 (citing PMS

Distributing Co. v. Huber & Suhner, A.G., 863 F.2d

639, 642 (9th Cir. 1988)). Indeed "a district court

may issue interim injunctive relief on arbitrable

claims if interim relief is necessary to preserve the

status quo and the meaningfulness of the

arbitration process—provided, of course, that the

App. 27

requirements for granting injunctive relief are

otherwise satisfied." Id. at 981.

B.

Analysis

This Application suffers from the same defects as

Plaintiffs’ initial Application for TRO and must

therefore be denied. Namely, it requests relief that

is overbroad, fails to consider the concerns of other

interested parties, and fails to provide the Court

with an adequate legal basis on which to grant

preliminary relief. As this Court noted in its Order

denying Plaintiff’s initial Application, Plaintiffs

have not provided the Court with the most relevant

documents in the case–the durable power of

attorney and the advance health care directive.

Without these documents, the Court is unable to

assess the merits of Plaintiffs’ legal claims, which

turn on the language contained in these

agreements.

As in the initial Application, the balance of

equities and public interest do not favor the

Plaintiff. The Complaint does not contend that the

advance health care directive is not a valid

instrument, only that it is not yet in effect. In that

directive, Ms. Melaragno designated her sister,

Clara Adkins, to be the primary healthcare

decisionmaker. It would not be equitable for the

Court to set this directive aside having not even

examined the document. To do so would interfere

not only with Ms. Adkins interests in the health

care of her sister, but also with Ms. Melaragno’s own

App. 28

wishes and instructions regarding her care.

Plaintiffs have not asserted anywhere in the record

that they have attempted to notify Ms. Adkins, or

any other interested party aside from Defendant, of

the current Application. Barring such notice and

opportunity for all interested parties to be heard,

the Court cannot grant the requested relief.

In sum, Plaintiffs have again failed to demonstrate

a likelihood of success on the merits of their claims

and have failed to demonstrate that equitable or

public interest considerations favor the granting of

a TRO. Because Plaintiffs have failed to meet their

burden, the Court DENIES Plaintiffs' Application.

While the Court recognizes that health care

decisions effecting a family member in ill-health

are important and often highly emotional, it cannot

simply set aside a valid agreement without hearing

from all interested parties and without viewing the

instrument itself. Plaintiffs might consider

pursuing conservatorship proceedings in state

probate court.

III.

RULING

For the foregoing reasons, the Court DENIES

Plaintiffs EDDYE MELARAGNO AND NINA

RINGGOLD’S Ex Parte Application for (1) Temporary

Restraining Order; (2) Protective Order; and(3) OSC

re Preliminary Injunction.

IT IS SO ORDERED.

App. 29

APPENDIX E

UNITED STATES DISTRICT COURT CENTRAL

DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. CV 17-06296 SJO (SK)

Date: October 17, 2017

Title: Eddye Melaragno et al v. Providence Health &

Services et al.

_________________________________________________

Present: THE HONORABLE S. JAMES OTERO,

UNITED STATES DISTRICT JUDGE

Victor Paul Cruz

Courtroom Clerk

Not Present

Court Reporter

COUNSEL PRESENT FOR PLAINTIFFS:

Not Present

COUNSEL PRESENT FOR DEFENDANTS:

Not present

_________________________________________________

App. 30

PROCEEDINGS (in chambers): ORDER DENYING

PLAINTIFFS' EX PARTE APPLICATION FOR

RECONSIDERATION AND/OR TO VACATE

PREVIOUS ORDERS; DENYING PLAINTIFFS’ EX

PARTE APPLICATION FOR STAY AND

INJUNCTION PENDING REVIEW; AND

DENYING PLAINTIFFS’ EX PARTE APPLICATION

FOR CERTIFICATION [Docket No. 40]; ORDER

GRANTING PLAINTIFFS’ MOTION TO STRIKE

DECLARATION OF MICHAEL J. ELSBERRY

[Docket No. 26]; ORDER GRANTING

PLAINTIFFS’ MOTION TO STRIKE

STIPULATION TO SUBSTITUTE ATTORNEY

[Docket No. 31]; ORDER GRANTING

PLAINTIFFS’ MOTION TO STRIKE EXHIBIT

[Docket No. 44]

This matter is before the Court on Plaintiffs’ Ex

Parte Application, filed October 3, 2017, seeking

numerous orders: (1) Reconsideration and/or to

vacate the September 14 & 22 2017 orders and for

other relief; (2) Orders necessary for the protection

and safety of Plaintiff Eddye Melaragno and for stay

and injunction pending review by supervisory

and/or advisory mandamus, petition for writ of

mandamus, and/or appeal; and (3). Defendants

filed on Opposition to this Application on October

10, 2017 to which Plaintiffs replied on October 11,

2017. For the following reasons, the Court

DENIES Plaintiffs' Applications.

App. 31

Also before the Court are various Motions to Strike

filed by the Plaintiffs: (1) Motion to Strike

Declaration of Michael J. Elsberry filed September

11, 2017; (2) Motion to Strike Stipulation to

Substitute Attorney filed September 14, 2017; and

(3) Motion to Strike Exhibit A Attached to

Declaration of David Pruett, Esq. Filed October 11,

2017. For the following reasons, the Court

GRANTS Plaintiffs’ Motions

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A.

Procedural History

On August 25, 2017, Plaintiff Nina Ringgold, in her

individual capacity and on behalf of her mother,

Plaintiff Eddye Melaragno, filed a Complaint

against Defendants, asserting the following ten

causes of action: (1) injunctive, declaratory, and

equitable relief; (2) Violation of § 504 of the

Rehabilitation Act of 1973; (3) Violation of Title II

of the Americans with Disabilities Act; (4-5)

Violation of Federal Civil Rights Protections; (6)

Violation of the California Disabled persons Act; (78) Violation of California Civil Rights Protections;

and (9-10) Intentional and Negligent Infliction of

Emotional Distress. (See generally Compl., ECF

No. 1.)

On August 29, 2017, Plaintiffs filed an ex parte

application seeking a temporary restraining order

App. 32

and an order to show cause why a preliminary

injunction should not issue. (ECF No. 11.) On

September 14, 2017, the Court denied Plaintiffs

Application. (ECF No. 33.) Plaintiffs filed a second

ex parte application on September 19, 2017 again

seeking a temporary restraining order and order to

show cause why a preliminary injunction should

not issue. (ECF No. 37.) On September 22, 2017,

the Court again denied Plaintiffs’ application.

(ECF No. 38.) The current application

(“Application”) was filed, again ex parte, seeking

orders (1) for reconsideration and/or to vacate the

September 14 & 22, 2017 orders and for other

relief, (2) a stay and injunction pending review of

these orders by the Ninth Circuit, and (3) for

certification. (ECF No. 40.)

Plaintiffs have also challenged the filing of several

documents. On September 1, 2017, the Declaration

of Michael J. Elsberry (“Elsberry Decl.”) was filed

asserting that the Application was moot and

should be denied. (ECF No. 19.) On September 11,

2017, Plaintiffs filed a motion to strike the

Elsberry Declaration. (ECF No. 26.) On September

13, 2017, Mr. Elsberry subsequently filed a

stipulation to substitute attorney David P. Pruett

in place of Michael J. Elsberry. (ECF No. 30.)

Plaintiffs objected to this stipulation the following

day (ECF No. 31.) On September 18, 2017,

Defendant filed a notice of appearance for David J.

Pruett, a corporate disclosure statement, and its

Answer. (ECF Nos. 34, 35, 36.)

App. 33

B.

Factual Allegations

Plaintiffs allege the following in their Complaint.

1.

The Parties

Plaintiff Eddye Melaragno is an 84 year old

patient currently receiving treatment at one of

Defendant’s facilities. (Compl. ¶¶ 5, 10; Decl. Req.

by Court ¶ 2.) The current action was filed on her

behalf by her grandson—designated as her Agent

under durable power of attorney. Ms. Ringgold is

Ms. Melaragno’s daughter and asserts to be both a

named Agent in Ms. Melaragno’s advance health

care directive and a designated surrogate under

California Probate Code § 4711. (Compl. at

Caption, ¶¶ 6,11.)

Providence Health & Services (“Providence”), in

turn, is a foreign nonprofit incorporated in the

state of Washington and registered with the

California Secretary of State. (Compl. ¶ 4.)

2.

Designation of Medical DecisionMakers

On August 11, 2017, Ms. Melaragno reported to the

emergency room of Defendant’s hospital. (Compl. ¶

10.) The immediate cause of her emergency room

visit is not apparent from the complaint she has a

long and complex medical history, suffering from a

App. 34

variety of ailments, including severe bedsores,

sensitivity to certain medications, and the use of a

ventilator. (Compl. ¶ 11.) Most notably, Ms.

Melaragno also has a cuffed tracheostomy tube that

renders her unable to communicate verbally unless

the balloon is deflated. (Compl.¶ 10.)

Ms. Melaragno has two separate documents that

designate Agents to act on her behalf. First, is a

durable power of attorney under which she has

designated her grandson as her Durable Agent.

(Compl. ¶ 15.) The second is an advance health care

directive (“Directive”) which designates her sister,

Clara Adkins, as the primary Agent, and Ms.

Ringgold as the second-named Agent. (Compl. ¶

15.) In addition to these two documents, Ms.

Melaragno, in response to a request from a hospital

admissions employee, designated through nonverbal means that Ms. Ringgold and her son were to

be her surrogates with the ability to make medical

decisions on her behalf. (Compl.

¶ 11.) Defendant’s employees failed to record this

designation in the medical record. (Compl. ¶ 11.)

Ms. Ringgold then requested that the hospital

admissions employee deflate the balloon on Ms.

Melaragno’s tracheostomy tube to allow her to

verbally communicate her wishes, but the

employee stated that this would not be necessary.

(Compl. ¶ 11.)

Over the course of the weeks following Ms.

Melaragno’s admission to Defendant’s hospital, Ms.

App. 35

Ringgold has become increasingly concerned with

the medical treatment her mother is receiving. She

objects, among other things, to the diagnoses of

certain medical conditions, the pharmaceutical

regimen prescribed, and medical procedures

performed. (Compl. ¶ 16.) Her son, acting as

Durable Agent, requested a copy of Ms.

Melaragno’s medical records. (Compl. ¶ 15.)

Defendant informed Plaintiffs that this request

triggered the Directive and that all medical decisions

going forward would need to be made by Ms.

Adkins, the primary Agent designated in that

document. (Compl. ¶ 15.) Defendant has since

refused to provide Ms. Ringgold and her son with

information regarding Ms. Melaragno’s medical

condition. (Compl. ¶ 15.) Plaintiffs contend that

Ms. Melaragno is capable and competent to make

her own decisions, both verbally and non- verbally,

and that the directive should not be in effect.

(Compl. ¶ 15.)

II.

DISCUSSION

A.

Ex Parte Application

The initial standing order of this Court clearly

states that "[e]x parte applications are solely for

extraordinary relief and are discouraged."

(Standing Order, R. 30.) In an ex parte application,

the moving party must show why it "should be

allowed to go to the head of the line in front of all

other litigants and receive special treatment." See

App. 36

Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F.

Supp. 488, 492 (C.D. Cal. 1995). Such applications

are “inherently unfair, and they pose a threat to the

administration of justice. They debilitate the

adversary system.” Id. at 490.

Ex parte applications through the

system out of whack. They impose an

unnecessary administrative burden

on the court and an unnecessary

adversarial burden on opposing

counsel who are required to make a

hurried response under pressure,

usually for no good reason. They

demand priority consideration, where

such consideration is seldom

deserved. In effect, they put the

applicant “ahead of the pack,” without

cause or justification. Ex parte

applications are not intended to save

the day for parties who have failed to

present requests when they should

have, and should not be used as a way

to “cut in line” ahead of those litigants

awaiting determination of their

properly noticed and timely filed

motions.”

In re Intermagnetics Am., Inc., 101 B.R. 191, 193

(C.D. Cal 1989). Ex parte relief is therefore only

justifiable in limited cases where the movant has

shown two things:

App. 37

First, the evidence must show that

the moving party’s cause will be

irreparably prejudiced if the

underlying motion is heard according

to regular noticed motion procedures.

Second, it must be established that the

moving party is without fault in

creating the crisis that requires ex

parte relief, or that the crisis occurred

as a result of excusable neglect.

Mission Power Eng’g Co., 883 F. Supp at 492.

Temporary restraining orders and ex parte

applications are extraordinary procedures that are

only intended to be used in cases where there is a

clear risk of immediate and irreparable harm. These

restrictions “reflect the fact that our entire

jurisprudence runs counter to the notion of court

action taken before reasonable notice and

opportunity to be heard has been granted to both

sides of a dispute.” Granny Goose Foods, Inc. v.

Bhd. of Teamsters & Auto Truck Drivers, 415 U.S.

423, 438-39 (1974). While there is a basis for ex

parte relief in the instant Application due to the

risk of irreparable harm to Ms. Melaragno,

Plaintiffs are reminded that such relief is

exceptional.

App. 38

B.

Reconsideration

Plaintiffs ask the Court to reconsider its orders of

September 14 and September 22 denying

Plaintiffs’ applications. They ground this request

in Rule 59 and Rule 60(b) of the Federal Rules of

Civil Procedure, however neither of these rules

permit a Court to reconsider the denial of a

temporary restraining order. Rule 59 permits a

post-verdict motion for a new trial and Rule 60(b)

applies only to final orders, not to interlocutory,

non-appealable orders. See Corn v. Guam Coral

Co., 318 F.2d 622, 628-29 (9th Cir. 1063); United

States v. Martin, 226 F.3d 1042, 1048 n. 8 (9th Cir.

2000).

Nonetheless, the Court does have inherent

authority, rooted in common law, to reconsider or

modify interlocutory orders. City of Los Angeles,

Harbor Div. v. Santa Monica Baykeeper, 254 F.3d

882, 886-87 (9th Cir. 2001). Even so, a "motion for

reconsideration should not be granted, absent

highly unusual circumstances, unless the district

court is presented with newly discovered evidence,

committed clear error, or if there is an intervening

change in the controlling law." 399 Orange St.

Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.

1999) (citation omitted). Further, a motion for

reconsideration "may not be used to raise

arguments or present evidence for the first time

App. 39

when they could reasonably have been raised

earlier in the litigation." Carroll v. Nakatani, 342

F.3d 934, 945 (9th Cir. 2003).

Moreover, the Court strictly adheres to Local Rule

7-18, which limits the viable bases for a motion for

reconsideration. Local Rule 7-18 provides that a

motion for reconsideration "may be made only on the

grounds of (a) a material difference in fact or law

from that presented to the Court before such

decision that in the exercise of reasonable diligence

could not have been known to the party moving for

reconsideration at the time of such decision, or (b)

the emergence of new material facts or a change of

law occurring after the time of such decision, or (c) a

manifest showing of a failure to consider material

facts presented to the Court before such decision."

Local Rule 7-18.

As Plaintiffs do not assert newly discovered

evidence or an intervening change in the

controlling law, they must show that the Court: (1)

failed to consider material facts, or (2) committed

clear error. They have failed to meet this burden.

1.

Factual Disputes

The Application states repeatedly that the Court’s

previous orders are predicated on the validity and

operation of the advanced health care directive, yet

this is not the case. Quite the contrary, the orders

specifically did not address the validity of the

App. 40

Directive because the document was not made

available to the Court for consideration.

Plaintiffs also allege that the Court failed to

consider the issue of Ms. Melaragno’s designation of

surrogacy under Probate Code § 4711. The Court

did, however, consider this claim and looked to the

Complaint and the numerous declarations for

descriptions of the designation, yet did not find them

sufficient to support the imposition of a temporary

restraining order because they failed to show a

likelihood of success on the merits.1 See Supra

Section II.B.2 (discussing the appropriate

evidentiary standard for temporary restraining

orders).

Plaintiffs next assert that the Court did not

consider the allegation that Melaragno’s primary

care physician (“PCP”) failed to approve the

triggering of the advanced health care directive.

Again, aside from this conclusory assertion,

Plaintiffs failed to provide any support for this

claim. Furthermore, by refusing to provide the

Court with a copy of the relevant Directive, the

Court was unable to assess whether or not the

terms of the directive were met. Without the

means to properly determine the likelihood of

Plaintiffs’ success on the merits, the Court was

unable to grant a temporary restraining order.

1

The Complaint states that “[b]y non-verbal means Melaragno

identified the Durable Agent and plaintiff as surrogates to assist

App. 41

2.

Legal Disputes

In addition to their factual disputes, Plaintiffs also

allege numerous legal defects. First, they state that

there is no competent opposing evidence challenging

the allegations of the complaint.2 (Mot. 11-12.) This

assertion show a misapprehension of the

evidentiary standard for seeking an ex parte

restraining order. While the lack of opposing

evidence may be sufficient for a post-discovery

summary judgment order, it is not the appropriate

standard for preliminary relief, especially where, as

here, Defendant has not been provided the

opportunity to oppose the application or to file an

answer. Granting a TRO requires the Court to

determine not whether the plaintiff has pled

sufficient facts, but rather whether there is a

likelihood that the moving party will succeed on the

merits of its claims. Winter v. Natural Res. Defense

Council, Inc., 555 U.S. 7 (2008); Diaz v. Brewer,

656 F.3d 1008, 1012-13 (9th Cir. 2011).

2

Between the various procedural challenges to Defendant’s

attempts to provide facts, the nearly exclusive use of ex parte

applications, and the hesitation to provide the most relevant

documents, Plaintiffs have made a concerted effort to control all

information considered by the Court and restrict access to any

information not provided directly by Plaintiffs or other members

of the self-described “Care Partner Team.” They then flout this by

stating that the facts in the Complaint are “uncontested” and that

there is no “competent evidence submitted by Defendant.”

App. 42

Plaintiffs’ complaint and TRO applications consist

primarily of conclusory allegations without

substantial factual support. What factual

allegations exist are clouded by Ms. Melaragno’s

appearance in the case not in her individual

capacity, but through her grandson who is himself

claiming to be a designated surrogate. This fact

raises serious concerns as to whether statements

and actions are truly representative of Ms.

Melaragno’s wishes. In light of these

circumstances, it is particularly important to have

a clear, strong factual case. Because Plaintiffs

failed to meet their burden of showing a likelihood

of success on the merits of their claims, failed to

show that the balance of the equities favored

granting a TRO, and failed to show that the

preliminary injunctive relief was in the interest of

the public, the Court’s denial of their ex parte TRO

was appropriate.

Finally, Plaintiffs allege that their request for in

camera review and for a protective order should

have been granted. They contend that the reason

for failing to provide the relevant documents is

that the protections afforded by filing under seal

are insufficient and that the Health Insurance

Portability and Accountability Act (“HIPAA”;

erroneously referred to as HIPPA throughout

Plaintiff’s application) expressly provides for a

App. 43

protective order as to medical records.3 This

argument fails for two reasons. First, Defendants

had already been provided with both the durable

power of attorney order and the advanced

healthcare directive. (Compl. ¶ 11 n. 3.) Plaintiffs

would therefore not be prejudiced by providing an

additional copy. Additionally, because Defendant is

a “covered entity” as defined by HIPAA, it is

already bound by the strictures and protections

afforded by the Privacy Rule. 45 C.F.R. § 160.102.

Thus, denial of Plaintiffs’ request for in camera

review was not improper.

In sum, Plaintiffs have failed to show that the

Court committed clear error that would justify

reconsideration in this case. The Court therefore

DENIES Plaintiffs’ Ex Parte Application to

Reconsider and/or Vacate the September 14, 2017

and September 22, 2017 Orders.

C.

Stay

“The district court does not lose jurisdiction over a

case merely because a litigant files an

interlocutory petition for an extraordinary writ.”

Ellis v. U.S. Dist. Court, 360 F.3d 1022, 1023 (9th

Cir. 2004). It is therefore within the district court’s

discretion whether to stay a case pending

resolution of a Writ of Mandamus. See Landis v. N.

Am. Co., 299 U.S. 248, 254 (1936).

3

Despite this claim, neither the original request, nor the

instant Motion, cite to any such provision in HIPAA.

App. 44

When considering whether to exercise this

discretion, the Court must apply a four-part test

similar to preliminary injunction analysis: (1)

whether the stay applicant has made a strong

showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the

stay will substantially injure the other parties

interested in the proceeding; and (4) where the

public interest lies. Hilton v. Braunskill, 481 U.S.

770, 776 (1987).

1.

Likelihood of Success on the

Merits

Mandamus is a “drastic and extraordinary remedy

reserved for really extraordinary causes.” Cheney

v. U.S. Dist. Court, 542 U.S. 367, 380 (2004). It is

“only exceptional circumstances amounting to a

judicial usurpation of power . . . or a clear abuse of

discretion . . . [that] will justify the invocation of

this extraordinary remedy.” Id. (internal quotation

marks and citations omitted).

The Ninth Circuit applies a five-part test to

requests for mandamus: (1) whether the party

seeking the writ has no other adequate means,

such as a direct appeal, to attain the relief he or

she desires; (2) whether the petitioner will be

damaged or prejudiced in a way not correctable on

appeal; (3) whether the district court’s order is

clearly erroneous as a matter of law; (4) whether

App. 45

the district court’s order is an oft-repeated error; or

manifests a persistent disregard of the federal

rules; and (5) whether the district court’s order

raises new and important problems, or issues of

law of first impression. Clemens v. U.S. Dist.

Court, 428 F.3d 1175, 1177-78 (9th Cir. 2005) “Not

every factor need be present at once . . . [h]owever,

the absence of the third factor, clear error, is

dispositive.” Id. (internal quotation marks and

citations omitted).

As the third factor of the test is dispositive and the

Court has already addressed that fact that it did

not commit clear error as a matter of law in denying

Plaintiffs’ initial applications (supra, III.B), the

Court finds that Plaintiffs have failed to show a

likelihood of succeeding on their proposed writ of

mandamus. For the same reasons, they have also

failed to show a likelihood of succeeding on any

direct appeal of the decision.

2.

Irreparable Injury, Risk to

Other Parties, & Public Interest

The final three factors are largely interrelated in

this case. The interest of the public, and the aim of

the Court in this case, is the speedy and accurate

determination of Ms. Melaragno’s wishes

regarding her medical care. Granting Plaintiffs’

requested stay would delay the final resolution of

this dispute and thereby frustrate this goal. It

would not only risk harm to Ms. Melaragno herself,

App. 46

but also to other parties interested in her health

and well-being.

Plaintiffs have thus failed to show that irreparable

injury would result in the absence of a stay. Quite

the contrary, Plaintiffs’ motion was filed ex parte

and repeatedly emphasizes the need for

expediency. This position is fundamentally

inconsistent with a request to stay an action. A

stay pending interlocutory appeal would delay the

resolution of the underlying dispute, not expedite it.

Accordingly, these factors do not favor staying the

action.

In sum, Plaintiffs have failed to show that

granting a stay pending appeal or other

interlocutory relief is appropriate. The Court

DENIES Plaintiffs’ Ex Parte Application to Stay

the case.

D.

Certification

Rule 54(b) provides that in actions involving more

than one claim for relief, "the court may direct

entry of a final judgment as to one or more, but

fewer than all, claims or parties only if the court

expressly determines that there is no just reason

for delay." Fed. R. Civ. P. 54(b). "The word 'claim'

in Rule 54(b) refers to a set of facts giving rise to

legal rights in the claimant, not to legal theories of

recovery based upon those facts." CMAX, Inc. v.

Drewry Photocolor Corp., 295 F.2d 695, 697 (9th

Cir. 1961). The Ninth Circuit has noted that Rule

App. 47

54(b) was adopted "to avoid the possible injustice of

a delay in judgment of a distinctly separate claim to

await adjudication of the entire case." Id.

(quotation marks and citation omitted). Where

multiple counts in a plaintiff's complaint are

"inextricably intertwined" and based on the same

"basic theories of recovery and core operative

facts," entry of judgment pursuant to Rule 54(b) is

inappropriate. See Ariz. State Carpenters Pension

Trust Fund v. Miller, 938 F.2d 1038, 1040 (9th Cir.

1991).

Certification under Rule 54(b) is not appropriate in

the current situation. Denying a TRO application

does not constitute disposing of a claim. As the

Court has not dismissed any of Plaintiffs claims, it

cannot grant certification for appeal pursuant to

Rule 54(b).

Certification is similarly inappropriate under 28

U.S.C. § 1292(b). Under that statute, the Court has

discretion to certify a non-final order for immediate

appeal where it finds (1) that such order involves a

"controlling question of law"; (2) as to which there is

"substantial ground for difference of opinion"; and

(3) that an immediate appeal from the order "may

materially advance the ultimate termination of the

litigation." 28 U.S.C. § 1292(b). “Ordinarily, an

appeal does not lie from the denial of an application

for a temporary restraining order; such appeals are

considered premature and are disallowed ‘[i]n the

interests of avoiding uneconomical piecemeal

App. 48

appellate review.’” Religious Technology Center,

Church of Scientology Intern., Inc. v. Scott, 869

F.2d 1306, 1308 (9th Cir. 1989) (quoting Kimball v.

Commandant Twelfth Naval District, 423 F.2d 88,

89 (9th Cir. 1970).

Plaintiffs have failed to establish an exception to

the rule disfavoring TRO appeals. Despite their

assertion to the contrary, this is not a circumstance

where the denial was “tantamount to the denial of a

preliminary injunction.” First, there has been no full

adversarial hearing because the TRO was filed ex

parte and Defendants were not provided an

opportunity to be heard. Religious Tech., 869 F.2d

at 1308. Second, Plaintiffs are not foreclosed from

pursuing further interlocutory relief nor are further

hearings futile. Id. at 1308-09. As the Court noted

in its initial order, Plaintiffs are free to seek

further injunctive relief. (Sept. 14, 2017 Order at

6.) Furthermore, Plaintiffs have made no attempt

to show that the three prongs of § 1292(b) are met

and have failed to establish that there is

“substantial ground for difference of opinion” or

that an immediate appeal would “materially

advance the ultimate termination of the litigation.”

For these reasons, the Court DENIES Plaintiffs’

Motion for Certification.

E.

Motion to Strike Declaration of

Michael J. Elsberry

App. 49

Plaintiffs correctly state that no counsel had

entered an appearance for Defendant at the time of

the filing of the Declaration of Michael J. Elsberry.

Additionally, Mr. Elsberry purported to represent

an entity not named as a party without first

seeking leave to intervene. Consequently, the

Motion to Strike this declaration is GRANTED.

F.

Motion to Strike Substitution

Plaintiffs next argue that the stipulation to

substitute David P. Pruett in place of attorney

Michael J. Elseberry (ECF No. 30.) should also be

stricken as Mr. Elsberry had not himself made a

proper appearance. The Court agrees. At the time

the stipulation was filed, Mr. Elsberry had filed a

declaration, but had not yet filed an appearance nor

claimed to represent a party to the action. As such,

substitution was improper. Plaintiffs’ motion to

strike this stipulation is therefore GRANTED. The

Court does note, however, that Mr. Pruett

subsequently filed a separate, valid notice of

appearance on September 18, 2017. This

appearance lists the Defendant as “Providence

Health & Services,” thereby also addressing the

second defect identified by Plaintiffs in their Motion

to Strike.

G.

Motion to Strike Exhibit A to

Defendants’ Opposition

App. 50

Finally, Plaintiffs moved to strike Exhibit A to

Defendants’ Opposition on the grounds that it

contains the confidential medical record of Ms.

Melaragno. The Court agrees. The exhibit at issue

is a copy of the Directive. It is clearly marked at

the bottom of each page with Ms. Melaragno’s

name and date of birth along with the medical

record number and visit number. As the exhibit is

clearly taken from her medical record, the

document should not be filed as a publicly

available document and the Court GRANTS

Plaintiffs Motion to Strike and ORDERS

Defendants to file this document, and any other

future documents taken from Ms. Melaragno’s

medical record, under seal.

III.

RULING

For the foregoing reasons, the Court DENIES

Plaintiffs’ Ex Parte Application for Reconsideration

and/or to vacate previous orders. The Court also

DENIES Plaintiffs’ Ex Parte Application for Stay

and Injunction Pending Appellate Review. The

Court further DENIES Plaintiffs’ Ex Parte

Application for Certification. It GRANTS

Plaintiffs’ Motion to Strike the Declaration of

Michael J. Elsberry; GRANTS Plaintiffs’ Motion to

Strike Stipulation of Substitution; and GRANTS

Plaintiffs’ Motion to Strike Exhibit A to

Defendant’s Opposition. Defendants are

ORDERED to file this document, and any other

App. 51

future documents taken from Ms. Melaragno’s

medical record, under seal.

IT IS SO ORDERED.

App. 52

APPENDIX F

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. CV 17-06296 SJO (SK)

Date: November 14, 2017

Title: Eddye Melaragno et al v. Providence Health &

Services et al.

_________________________________________________

Present: THE HONORABLE S. JAMES OTERO,

UNITED STATES DISTRICT JUDGE

Victor Paul Cruz

Courtroom Clerk

Not Present

Court Reporter

COUNSEL PRESENT FOR PLAINTIFFS:

Not Present

COUNSEL PRESENT FOR DEFENDANTS:

Not present

_________________________________________________

App. 53

PROCEEDINGS (in chambers): ORDER

DENYING PLAINTIFFS’ MOTION TO STRIKE

ANSWER AND MOTION FOR ENTRY OF

DEFAULT [Docket No. 42]; ORDER DENYING

PLAINTIFFS’ REQUEST FOR A HEARING ON

THE MATTER OF THE APPEARANCES FOR

DEFENDANT AND REQUEST TO CROSS

EXAMINE SIGNATORIES THERETO [Docket

No. 48]

This matter is before the Court on Plaintiffs’

Motion, filed October 7, 2017, seeking to strike

Defendant’s Notice of Appearance and Answer, and

seeking entry of default. Defendants filed on

Opposition to this Application on October 16, 2017 to

which Plaintiffs replied on October 23, 2017. For the

following reasons, the Court DENIES Plaintiffs'

Motions.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A.

Procedural History

On August 25, 2017, Plaintiff Nina Ringgold, in her

individual capacity and on behalf of her mother,

Plaintiff Eddye Melaragno, filed a Complaint

against Defendants, asserting the following ten

causes of action: (1) injunctive, declaratory, and

equitable relief; (2) Violation of § 504 of the

App. 54

Rehabilitation Act of 1973; (3) Violation of Title II

of the Americans with Disabilities Act; (4-5)

Violation of Federal Civil Rights Protections; (6)

Violation of the California Disabled persons Act; (78) Violation of California Civil Rights Protections;

and (9-10) Intentional and Negligent Infliction of

Emotional Distress. (See generally Compl., ECF

No. 1.)

On August 29, 2017, Plaintiffs filed an ex parte

application seeking a temporary restraining order

and an order to show cause why a preliminary

injunction should not issue. (ECF No. 11.) On

September 14, 2017, the Court denied Plaintiffs

Application. (ECF No. 33.) Plaintiffs filed a second

ex parte application on September 19, 2017 again

seeking a temporary restraining order and order to

show cause why a preliminary injunction should

not issue. (ECF No. 37.) On September 22, 2017,

the Court again denied Plaintiffs’ application.

(ECF No. 38.)

Plaintiffs have also challenged the filing of several

documents. On September 1, 2017, the Declaration

of Michael J. Elsberry (“Elsberry Decl.”) was filed

asserting that the Application was moot and

should be denied. (ECF No. 19.) On September 11,

2017, Plaintiffs filed a motion to strike the

Elsberry Declaration. (ECF No. 26.) On September

13, 2017, Mr. Elsberry subsequently filed a

stipulation to substitute attorney David P. Pruett

in place of Michael J. Elsberry. (ECF No. 30.)

App. 55

Plaintiffs objected to this stipulation the following

day (ECF No. 31.) On September 18, 2017,

Defendant filed a Notice of Appearance for David

P. Pruett (“Notice”), a corporate disclosure

statement, and its Answer (“Answer”). (ECF Nos.

34, 35, 36.) On October 17, 2017, the Court issued

an order granting various of Plaintiffs’ motions to

strike. (ECF No. 50.) Plaintiffs’ current Motion

(“Motion”) seeks to strike Defendant’s Notice of

Appearance for David P. Pruett, strike Defendant’s

Answer, and enter a default. (ECF No. 42.)

Plaintiffs also request a hearing on the matter of

Defendant’s appearances and the opportunity to

cross-examine the signatories thereto. (ECF No.

48.)

B.

Factual Allegations

Plaintiffs allege the following in their Complaint.

1.

The Parties

Plaintiff Eddye Melaragno is an 84 year old

patient currently receiving treatment at one of

Defendant’s facilities. (Compl. ¶¶ 5, 10; Decl. Req.

by Court ¶ 2.) The current action was filed on her

behalf by her grandson—designated as her Agent

under durable power of attorney. Ms. Ringgold is

Ms. Melaragno’s daughter and asserts to be both a

named Agent in Ms. Melaragno’s advance health

care directive and a designated surrogate under

Calfornia Probate Code § 4711. (Compl. at Caption,

¶¶ 6,11.)

App. 56

Providence Health & Services (“Providence”), in

turn, is a foreign nonprofit incorporated in the

state of Washington and registered with the

California Secretary of State. (Compl. ¶ 4.)

2.

Designation of Medical DecisionMakers

On August 11, 2017, Ms. Melaragno reported to

the emergency room of Defendant’s hospital.

(Compl. ¶ 10.) The immediate cause of her

emergency room visit is not apparent from the

complaint she has a long and complex medical

history, suffering from a variety of ailments,

including severe bedsores, sensitivity to certain

medications, and the use of a ventilator. (Compl. ¶

11.) Most notably, Ms. Melaragno also has a cuffed

tracheostomy tube that renders her unable to

communicate verbally unless the balloon is

deflated. (Compl.¶ 10.)

Ms. Melaragno has two separate documents that

designate Agents to act on her behalf. First, is a

durable power of attorney under which she has

designated her grandson as her Durable Agent.

(Compl. ¶ 15.) The second is an advance health care

directive (“Directive”) which designates her sister,

Clara Adkins, as the primary Agent, and Ms.

Ringgold as the second-named Agent. (Compl. ¶

15.) In addition to these two documents, Ms.

Melaragno, in response to a request from a hospital

admissions employee, designated through nonverbal means that Ms. Ringgold and her son were to

App. 57

be her surrogates with the ability to make medical

decisions on her behalf. (Compl. ¶ 11.) Defendant’s

employees failed to record this designation in the

medical record. (Compl. ¶ 11.) Ms. Ringgold then

requested that the hospital admissions employee

deflate the balloon on Ms. Melaragno’s

tracheostomy tube to allow her to verbally

communicate her wishes, but the employee stated

that this would not be necessary. (Compl. ¶ 11.)

Over the course of the weeks following Ms.

Melaragno’s admission to Defendant’s hospital, Ms.

Ringgold has become increasingly concerned with

the medical treatment her mother is receiving. She

objects, among other things, to the diagnoses of

certain medical conditions, the pharmaceutical

regimen prescribed, and medical procedures

performed. (Compl. ¶ 16.) Her son, acting as

Durable Agent, requested a copy of Ms.

Melaragno’s medical records. (Compl. ¶ 15.)

Defendant informed Plaintiffs that this request

triggered the Directive and that all medical decisions

going forward would need to be made by Ms.

Adkins, the primary Agent designated in that

document. (Compl. ¶ 15.) Defendant has since

refused to provide Ms. Ringgold and her son with

information regarding Ms. Melaragno’s medical

condition. (Compl. ¶ 15.) Plaintiffs contend that

Ms. Melaragno is capable and competent to make

her own decisions, both verbally and non- verbally,

and that the directive should not be in effect.

(Compl. ¶ 15.)

App. 58

II.

DISCUSSION

A.

Legal Standard

Pursuant to Federal Rule of Civil Procedure section

12(f), the Court, on its own or on the motion of a

party, "may strike from a pleading an insufficient

defense or any redundant, immaterial,

impertinent, or scandalous matter." Fed. R. Civ. P.

§ 12(f). A defense is insufficient when the "moving

party shows that there are no questions of fact,

that any questions of law are clear and not in

dispute, and that under no set of circumstances

could the defense succeed." Securities & Exchange

Comm'n v. Sands, 902 F. Supp. 1149, 1165 (C.D.

Cal. 1995). A matter is redundant if "needlessly

repetitive or wholly foreign to the issues involved in

the action." Cal Dep't of Toxic Substances Control

v. Alco Pac., Inc. ("Cal Dep't of Toxic Subs.

Control"), 217 F. Supp. 2d 1028, 1033 (C.D. Cal.

2002) (citing Gilbert v. Eli Lilly Co., Inc., 56 F.R.D.

116, 121 n. 4 (D.P.R. 1972)). An immaterial matter

has "no essential or important relationship to the

claim for relief or the defenses being pleaded."

Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th

Circ. 1993) (citation omitted), rev'd on other

grounds, 510 U.S. 517 (1994). A matter is

impertinent when it "consists of statements that do

not pertain, and are not necessary, to the issues in

question." Id. A scandalous matter "casts a cruelly

derogatory light on a party or the other person." In

App. 59

re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d

995, 965 (C.D. Cal. 2000) (citing Skadegaard v.

Farrell, 578 F. Supp. 1209, 1221 (D.N.J. 1984)).

"[T]he function of a 12(f) motion to strike is to avoid

the expenditure of time and money that must arise

from litigating spurious issues by dispensing with

those issues prior to trial." Sidney-Vinstein v. A.H.

Robins Co., 697 F.2d 880, 885 (9th Cir. 1983);

accord, Mag Instrument, Inc. v. JS Prods., Inc., 595

F. Supp. 2d 1102, 1106 (C.D. Cal. 2008). "Motions to

strike are generally regarded with disfavor because

of the limited importance of pleading in federal

practice, and because they are often used as a

delaying tactic." Mag Instrument, 595 F. Supp. 2d

at 1106 (citation omitted). "Given their disfavored

status, courts often require 'a showing of prejudice

by the moving party' before granting the requested

relief." Id. (citations omitted). Moreover, the use of

Rule 12(f) motions to strike affirmative defenses is

disfavored and such motions should only be granted

if the defense is clearly insufficient as a matter of

law under any set of facts the defendant might

allege. See William Z Salcer, Panfeld, Edelman v.

Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir.

1984); Lunsford v. United States, 570 F.2d 221,

229-30 (8th Cir. 1977); Augustus v. Board of

Public Instruction, 306 F.2d 862, 868 (5th Cir.

1962).

"In determining whether to grant a motion to

strike, a district court views the pleadings in a

App. 60

light most favorable to the non-moving party, and

resolves any doubt as to the . . . sufficiency of a

defense in defendant's favor." Id. (citations

omitted). Whether to grant a motion to strike is

within the sound discretion of the district court. Id.

(citation omitted). "For a motion to strike to be

granted, the grounds for the motion must appear

either on the face of the complaint or from matters

of which the Court may take judicial notice." In re

New Century, 588 F. Supp. 2d 1206, 1220 (C.D.

Cal. 2008) (citation omitted).

B.

Analysis

1.

Notice of Appearance

Plaintiffs contend that Defendant never made a

proper appearance in this case and that its Answer

was therefore improper and should be stricken.

The first purported appearance by Defendant in this

case is a declaration filed by attorney Michael J.

Elsberry. In this declaration, Mr. Elsberry claims to

be attorney for defendant which he identifies as

“Providence Health System-Southern California

d/b/a Providence Holy Cross Medical Center” and

which he contends was erroneously named

“Providence Health & Services” in Plaintiffs’

Complaint. Plaintiffs moved to strike this document

on the basis that Providence Health SystemSouthern California is not the proper Defendant and

Mr. Elsberry therefore did not properly appear in this

App. 61

case. The Court granted this motion in its October

17, 2017 Order.

Mr Pruett next filed a request to substitute Counsel,

again identifying “Providence Health SystemSouthern California” as his client, and seeking to

substitute David P. Pruett as Defendant’s attorney

in place of himself. Plaintiffs opposed the filing of

this document, both on the grounds that it

misidentified the Defendant and because Mr.

Elsberry had not made a proper appearance in this

case. The Court again granted Plaintiff’s motion to

strike this substitution.

On the day that Defendant’s answer was due, Mr.

Pruett filed a separate Notice of Appearance, this

time properly identifying his client as Providence

Health & Services. It was only after filing this

appearance that Defendant filed its Answer.

Despite challenging the previous request for

substitution on the grounds that Defendant had not

yet made an appearance, Plaintiffs now claim that

Mr. Pruett’s Notice of Appearance was improper

because he should have instead filed a request for

substitution. This is a clear attempt by Plaintiffs to

speak out of both sides of their mouth and is

representative of the procedural chicanery

exhibited by Plaintiffs throughout this case. The

Court made a determination that neither of Mr.

Elsberry’s filings were proper and struck both at the

request of Plaintiffs. Defendant had therefore

App. 62

made no appearance in the case when Mr. Pruett

filed his Notice of Appearance.

Plaintiffs attempt to gird their position by citing to

an unpublished opinion from the District of

Arizona in which the court declined to recognize a

notice of appearance. See E.E.O.C. v. Sunfire, No.

08-cv-1784, 2009 WL 2450472 (D. Ariz. Aug. 11,

2009). That case, however, is easily distinguishable

on multiple grounds. First, the fact that the parties

were already represented by counsel was

indisputed. Second, the attorney was seeking to reopen a default judgment and add a new party

months after the judgment was entered. Finally,

the notice of appearance failed to comply with

numerous local rules, including the lack of his

purported clients’ signatures. None of these

circumstances exist in the current case. Mr Pruett’s

appearance is proper and Defendant’s Answer is

timely.

As Plaintiffs’ request for an entry of default is

predicated on the untimeliness of the Answer,

Plaintiffs’ Motion to Strike the Notice of

Appearance and its Request for Entry of Default

are DENIED. Furthermore, because the issue of

Defendant’s appearances has been fully considered

by the Court, Plaintiffs’ request for a hearing on the

matter and the opportunity to cross-examine

signatories is DENIED.

App. 63

2.

Defendant’s Answer

Plaintiffs next contend that Defendant’s Answer

should be stricken in part on the basis that it

contains false admissions. In particular, they

identify three paragraphs which they claim are not

responsive to any of the allegations in the

Complaint:

7.

Defendant admits that during

Ms. Melaragno’s hospitalization

at Providence Health SystemSouthern California dba

Providence Holy Cross, as the

result of the natural course of

Ms. Melaragno’s disease or

condition (see Cal. Health &

Saf. Code § 1714.8) was

incapable [sic] of making her

own health care decisions and

was incapable of

communicating on her own

behalf. Ibid.

8.

Defendant admits that during

the hospitalization at

Providence Health SystemSouthern California dba

Providence Holy Cross, Clara J.

Adkins acted as agent for Ms.

Melaragno based upon the

App. 64

Advance Health Care Directive.

Ibid.

9.

Defendant admits that despite

the designation of Clara J.

Adkins by Ms. Melaragno as

her agent to make health care

decisions for her, that during the

hospitalization at Providence

Health System-Southern

California dba Providence Holy

Cross, that Nina Ringgold and

Justin Ringgold-Lockhart

claimed they were authorized

to act as the agent of Ms.

Melaragno based upon the

Advance Health Care Directive,

including by purporting to have

authority to request medical

records of Ms. Melaragno. Ibid.

(Answer, ¶¶ 7-9.) Plaintiffs challenge these

paragraphs on the basis that they are not

responsive to the allegations in the Complaint,

but rather appear to be included solely to

support Defendant’s affirmative defenses. While

the Court agrees that these paragraphs include

information not directly responsive to the

allegations in the Complaint, it finds that these

limited additions are otherwise permissible as

App. 65

support for Defendant’s affirmative defenses

and that they do not unfairly prejudice

Plaintiffs.

For example, while it is true that the Complaint

does not allege Ms. Melaragno was incapable of

making her own health care decisions, this is one

of the primary facts alleged by Defendant in

support of its defense. Were the Court to strike

the paragraph, the remedy would simply be to

remove the words “Defendant admits” and move

the paragraph to the affirmative defense portion

of its Answer. As the Court would be inclined to

grant Defendant leave to amend its Answer,

permitting the paragraph in its current form does

not prejudice Plaintiffs and striking the paragraph

would simply serve to delay resolution of the

underlying issues.

As discussed above, “the function of a 12(f) motion

to strike is to avoid the expenditure of time and

money that must arise from litigating spurious

issues by dispensing with those issues prior to

trial." Sidney-Vinstein, 697 F.2d at 885 (9th Cir.

1983) (emphasis added). Granting Plaintiffs’

motion and striking three paragraphs of

Defendant’s Answer would not achieve this goal,

and would merely prolong the matter, increasing

the expenditure of time and money.

For this reason, the Court DENIES Plaintiffs’

Motion to Strike paragraphs 7-9 of Defendant’s

Answer.

App. 66

III.

RULING

For the foregoing reasons, the Court DENIES

Plaintiffs’ Motion to Strike Notice of Appearance;

DENIES Plaintiffs’ Motion to Strike Defendant’s

Answer; DENIES Plaintiffs’ Motion for Entry of

Default; and DENIES Plaintiffs’ request for a

hearing on the issue of Defendant’s appearances

and the opportunity to cross-examine signatories.

IT IS SO ORDERED.

App. 67

APPENDIX G

Exhibit 1 to Complaint filed August 25, 2017

Docket 1 Case 2:17-cv-06296

Cuffless Tubes

Patients who need ventilation (assisted breathing

with a respirator or breathing machine) require

tracheostomy tubes that are blocked and sealed by

what is called a cuff (also called a balloon)

located on the lower outer cannula. The cuff blocks

any air from flowing around the tube and

App. 68

assures that the patient is well oxygenated. All the

air must therefore flow in and out through the

tube itself. A pilot tube attached to the cuff stays

outside the body and is used to inflate or deflate

the cuff. When the balloon is deflated air can

circulate and the patient can speak and make

sounds.