IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA 

CRAIG H., by his next friend, CRISTINA : 

CORP-FRANCIS, : 

 : 

 Plaintiff, : C.A. No. 04-CV-1985 

 : 

 v. : 

 : 

CITY OF PHILADELPHIA : 

 : 

 Defendant. : 

__________________________________________: 

MOTION FOR PRELIMINARY INJUNCTION

Plaintiff Craig H., by his next friend, Cristina Corp-Francis, hereby moves pursuant to 

Rule 65 (a), Fed. R. Civ. Proc. for a preliminary injunction against the City of Philadelphia (“the 

City”). As is more fully set forth in the accompanying memorandum of law, plaintiff will be 

irreparably harmed absent injunctive relief, and plaintiff has a high likelihood of success on the 

merits of the case. 

The injunctive relief sought by plaintiff would require the City to provide plaintiff with 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 1 of 13
services needed to accommodate his deafness, and end his virtual isolation at a residential 

placement provided by the City. 

Respectfully submitted, 

 A 

 

Edmond A. Tiryak, Esquire 

Attorney at Law 

Attorney I.D. No. 20501 

Post Office Box 229 

Wayne, PA 19087-0229 

(610) 341-9797 (voice) 

(610) 341-9356 (fax) 

etiryak@email.msn.com 

Rachel Mann, Esquire 

Attorney I.D. No. 49267 

Disabilities Law Project 

1315 Walnut Street, 4th Floor 

Philadelphia, PA 19107 

(215) 238-8070, Ext. 205 

Attorneys for Plaintiff 

Date: June 11, 2004 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 2 of 13
IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA 

CRAIG H., by his next friend, CRISTINA : 

CORP-FRANCIS, : 

 : 

 Plaintiff, : C.A. No. 04-cv-1985 

 : 

 v. : 

 : 

CITY OF PHILADELPHIA : 

 : 

 Defendant. : 

__________________________________________: 

MEMORANDUM OF LAW IN SUPPORT OF 

MOTION FOR PRELIMINARY INJUNCTION

I. BACKGROUND. 

Plaintiff Craig H. is a deaf man who, due to mental illness, is qualified for and is 

receiving residential mental health services from the Defendant City. Contrary to law, however, 

the City is not providing Plaintiff with effective communication with anyone in his residential 

program, leaving him isolated, frustrated and at risk. No staff or residents at the facility 

understand sign language, which is Plaintiff’s primary means of communication, and the City 

has not been providing interpreters at the home. Staff are not in a position to know when 

Plaintiff is becoming delusional, or having a negative reaction to his psychotropic medications, 

nor are they in a position to help him through any difficulties at all. Moreover, plaintiff cannot 

participate in activities with his peers, since he cannot communicate with them. 

The City has known for more than a year that a placement exists at an appropriate mental 

health residence designed for people who are deaf, where sign language is the primary language 

used. This placement, in neighboring Montgomery County, has had an available opening for 

Plaintiff since at least October of 2003, yet defendant has done nothing to either move Plaintiff 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 3 of 13
to this program or to otherwise meet his need for effective communication in his residence. As a 

result, Plaintiff’s mental status is continually compromised, he has been shut out of 

communications with his staff and peers, no doubt exacerbating his mental illness. The 

emotional and psychological harm that Plaintiff is experiencing every day is irreparable. 

The City’s actions and inactions discriminate against Plaintiff on the basis of his 

deafness, in violation of the Americans with Disabilities Act (“ADA”) and Section 504 of the 

Rehabilitation Act (“Section 504”). Unless the Court enters a preliminary injunction against the 

City, Plaintiff will continue to suffer irreparable harm. Such an injunction would cause no 

comparable harm to the City, and would be in the public interest. 

II. STANDARD FOR PRELIMINARY INJUNCTION 

In considering a motion for preliminary injunctive relief, a court must consider “(1) 

whether the movant has a reasonable probability of success on the merits; (2) whether irreparable 

harm would result if the relief sought is not granted; (3) whether the relief would result in greater 

harm to the non-moving party; and (4) whether the relief is in the public interest.” Swartzwelder 

v. McNeilly, 297 F.3 228, 234 (3d Cir. 2002). 

III. CRIAG H. HAS A REASONABLE PROBABILITY OF SUCCESS ON THE 

MERITS OF HIS CLAIMS 

 

A. The Americans with Disabilities Act.

Title II of the ADA prohibits public entities from subjecting qualified individuals with 

disabilities to discrimination “by reason of such disability”. 42 U.S.C. § 12132. That the City is 

a public entity (which includes any “local government”1

) goes without saying. That Plaintiff is 

an individual with a disability is also undeniable. Under the ADA, disability is defined as “a 

physical or mental impairment that substantially limits one or more of the major life activities of 

 

1

 See 42 U.S.C. § 12131(1)(A) 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 4 of 13
such individual.” 42 U.S.C. § 12102(2). The regulations implementing Title II explain that the 

term “physical or mental impairment” includes “speech and hearing impairments” and that 

“major life activities” include hearing and speaking. 28 C.F.R. § 35.104. Due to his deafness, 

Plaintiff cannot speak or hear at all. 

An individual with a disability is “qualified” if, “with or without reasonable 

modifications to rules, policies or practices, the removal of... communication ... barriers, or the 

provision of auxiliary aids or services” the individual “meets the essential eligibility 

requirements for the receipt of services or the participation in programs or activities provided by 

a public entity.” 42 U.S.C. § 12131(2). (“Auxiliary aids and services” includes “qualified 

interpreters or other effective methods of making aurally delivered materials available to 

individuals with hearing impairments.” 42 U.S.C. § 12102(1)(A)) The City has determined that 

Plaintiff meets the essential eligibility requirements for its residential mental health services in 

that it has long ago concluded that residential placement is appropriate for plaintiff and the City 

has been funding his placement in a residential mental health facility. Thus Plaintiff is a 

“qualified individual with a disability” – he is qualified for mental health services and he is deaf. 

Finally, the City is discriminating against Plaintiff by reason of his disability, i.e., his 

deafness. The regulations implementing Title II, at 28 C.F.R. § 35.130 (b)(1), explain 

discrimination as follows: 

 A public entity, in providing any aid, benefit or service, may not, directly or 

through contractual, licensing or other arrangements, on the basis of disability 

 

(i) Deny a qualified individual with a disability an opportunity to participate in or 

benefit from the aid, benefit or service; 

(ii) Afford a qualified individual with a disability an opportunity to participate in 

or benefit from the aid, benefit or service that is not equal to that afforded 

others; 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 5 of 13
(iii) Provide a qualified individual with a disability with an aid, benefit or service 

that is not as effective in affording equal opportunity to obtain the same result, 

to gain the same benefit, or to reach the same level of achievement as that 

provided to others; 

 

The regulations further provide, at 28 C.F.R. § 5.160 that: 

(a) A public entity shall take appropriate steps to ensure that communications with 

applicants, participants, and members of the public with disabilities are as effective as 

communications with others. 

(b) (1) A public entity shall furnish appropriate auxiliary aids and services where 

necessary to afford an individual with a disability an equal opportunity to participate 

in, and enjoy the benefits of, a service, program, or activity conducted by a public 

entity. 

(2) In determining what type of auxiliary aid and service is necessary, a public entity 

shall give primary consideration to the request of the individual with disabilities. 2

 

It is clear that the City has failed to ensure that communications with Plaintiff are as 

effective as communications with other participants of its residential mental health services; that 

it has failed to furnish appropriate auxiliary aids and services (interpreters or deaf--accessible 

services) which are necessary in order for him to participate in and enjoy the benefits of his 

residential mental health services; and has thereby denied him an equal and effective opportunity 

to benefit from its residential mental health service system. 

It is settled law that the failure of public entities to provide adequate accommodations to 

meet the communication needs of deaf individuals violates the ADA. In Doe v. Sylvester, 2001 

WL 1064810 (D. Del. 2001), for example, the court denied the state defendant’s motion to 

dismiss claims based on the inadequate provision of sign language interpreter services (they were 

being provided for only four to nine hours per day) in a psychiatric hospital and failure to offer 

auxiliary aids and services, including interpreters or sign-fluent staff in a community placement 

 

2

 Plaintiff has requested that the auxiliary services he receives be in the form of a placement at an existing and 

available facility where staff and residents use sign language so that he can communicate directly rather than 

through an interpreter. This is also the most cost effective method of providing him communication that is as 

effective as that provided to others receiving residential mental health services. 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 6 of 13
to which plaintiff had been referred. See also Clarkson v. Coughlin, 898 F. Supp. 1019, 1952 

(S.D. N.Y. 1995) in which the court granted permanent injunctive relief for a class of deaf prison 

inmates with respect to their claims that the state failed “to make reasonable accommodations to 

facilitate full participation by class members in educational, vocational and rehabilitative 

contexts” and for “medical and mental health treatment.” 

 Plaintiff’s claims are much stronger than those which warranted preliminary injunctive 

relief in Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994). There, the court held that plaintiffs 

had a reasonable probability of success on the merits of their claim that the state was violating 

the ADA by providing outpatient mental health services to patients who were deaf through the 

use of interpreters, rather than through the use of mental health professionals who were fluent in 

sign language and understood deaf culture. The court concluded, on the basis of expert 

testimony, that mental health services provided to deaf patients through sign language 

interpreters were not equal to services provided to hearing patients. In the instant case, 

Plaintiff’s residential mental health services are not only provided by staff who know nothing of 

sign language or deaf culture, but are being provided without even the aid of an interpreter. 

Plaintiff has more than a reasonable probability of success on the merits of his claim. 

B. The Rehabilitation Act.

Plaintiff has also asserted claims against the City under Section 504 of the Rehabilitation 

Act. The courts frequently combine the analyses of the ADA and Section 504 because they 

generally prohibit the same type of discrimination and because Congress has directed that Title II 

of the ADA be interpreted in a manner consistent with Section 504. See, e.g., Bartlett v. New 

York State Board of Law Examiners, 226 F.3d 69, 78 n. 2 (2d Cir. 2000); Frederick L. v. 

Department of Public Welfare, 364 F.3d 487 (3d Cir. 2004) (“We have construed the provisions 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 7 of 13
of the RA [Section 504] and the ADA in light of their close similarity of language and purpose.”) 

Just as with the ADA, courts have validated claims against public entities under Section 504 for 

failing to provide effective communication for deaf plaintiffs. See, e.g., Clarkson v. Coughlin, 

supra., and Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) (summary judgment for state 

overturned on Section 504 claim of denial of adequate accommodations to deaf prison inmate). 

The only significant difference between the two statutes is that Section 504 only applies to 

programs or activities receiving federal financial assistance. Plaintiff will demonstrate at the 

hearing that the City and its mental health program are recipients of federal financial assistance. 

IV. WITHOUT AN INJUNCTION, CRAIG H. WILL CONTINUE TO SUFFER 

IRREPARABLE HARM 

To prove irreparable harm, a plaintiff must show that he is at risk of “’potential harm 

which cannot be redressed by a legal or an equitable remedy following trial’” and that the harm 

is “‘of a peculiar nature, so that compensation in money cannot atone for it. . . .’” Acierno v. 

New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (citations omitted). Plaintiff will show that 

he is being denied adequate mental health care as a result of the lack of communication with his 

staff, is at risk of repeated psychiatric crises necessitating hospitalization, is at risk of physical 

harm due to the inability to communicate a potential adverse reaction to psychotropic 

medication, and is suffering from a continual sense of emotional isolation and frustration which 

adds to his already significant psychiatric disorder. In addition, there is a significant risk that 

the available openings at the deaf mental health facility in Montgomery County, which is the 

only residential mental health program in the area that is designed to meet the needs of deaf 

individuals, will be filled before this case is heard. 

It is well established that individuals who are denied appropriate and timely mental health 

treatment suffer irreparable harm. See Tugg v. Towey, supra, 864 F. Supp. at 1209 (mental health 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 8 of 13
patients would suffer irreparable injury if they received inadequate mental health services); 

Casey v. Lewis, 834, F. Supp. 1477, 1551-52 (D. Ariz. 1993) (irreparable injury found from lack 

of adequate mental health care in prison); See also cases holding that the denial of medical 

benefits constitutes irreparable injury. Caldwell v. Blum, 621 F.2d 491, 498 (2d Cir. 1980), cert. 

denied, 452 U.S. 909 (1981); Estate of Aitkin v. Shalala, 986 F. Supp. 57, 65 (D. Mass. 1997) 

(holding that termination of Medicare benefit is irreparable injury). See also Chu Drua Cha v. 

Noot, 696 F.2d 594, 599 (8th Cir. 1982) (indicating that denial of AFDC benefits, and possible 

resulting loss of medical care, constitutes irreparable harm). 

Plaintiff cannot wait for the ultimate resolution of this case because, as the court opined 

in Sobky v. Smoley, 855 F. Supp. 1123,1142 (E.D. Cal. 1994) “[f]or anyone in immediate need of 

medical treatment, the value of medical services provided in the future is less than the value of 

medical services provided when needed, particularly when the need is great.” The deprivation of 

appropriate mental health treatment cannot be fully compensated for in money. In that sense it is 

like education: “Compensation in money can never atone for deprivation of a meaningful 

education in an appropriate manner at an appropriate time.” John T. v. Commonwealth of 

Pennsylvania, 2000 WL 558582, at * 8 (E.D. Pa. May 8, 2000) (granting preliminary injunction 

in case brought under the IDEA). 

Similarly, monetary compensation cannot fully atone for ongoing and severe emotional 

distress. Oshiver v. Court of Common Pleas, Court of Common Pleas, 469 F. Supp. 645, 653 

(E.D. Pa., 1979) ([Plaintiff] has presented credible evidence of nervous and emotional problems 

brought on by her dismissal. ....The injury concurrently being suffered by plaintiff cannot be 

cured by retrospective relief; and plaintiff requires a preliminary injunction to halt this 

continuing injury.) Ray v. School District of DeSoto County, 666 F. Supp. 1524, 1534-35 (M.D. 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 9 of 13
Fla. 1987) (irreparable injury based upon HIV positive childrens’ feelings of anger, resentment 

and social rejection when placed on homebound instruction or in segregated classrooms). In 

fact, courts have found irreparable injury in cases brought under Section 504 for emotional harm 

that is much less severe in nature than that effecting Plaintiff. See Chalk v. United States 

District Court Central District of California, 840 F.2d 701, 710 (9th Cir. 1988) (irreparable 

injury found from deprivation of a sense of well-being); Crocker v. Secondary School Athletic 

Ass’n, 735 F. Supp.753 (M.D. Tenn. 1990), aff’d 908 F.2d 972 (6th Cir. 1990) (disabled 

plaintiff’s exclusion from interscholastic athletics caused irreparable injury by denying plaintiff 

the satisfaction of competitive sports). 

Only a preliminary injunction will prevent Craig H. from being irreparably harmed until a 

decision on the merits of his claims is reached. 

V. THE BALANCE OF HARMS WEIGHS IN FAVOR OF PLAINTIFF 

Further, the only possible harm to the City that would come from an injunction is 

financial, and financial harm to the City, if any, cannot outweigh the significant harm that 

Plaintiff will face in the absence of effective communication within his residential program.3

 As 

one court wrote: "The harm to the Commonwealth if [a preliminary injunction were] granted, 

while it may not have been negligible, was measured only in money and was inconsequential by 

comparison" to the harm suffered by the plaintiffs. Todd v. Sorrell, 841 F.2d 87, 88 (4th Cir. 

1988). When the only hardship is that the City would provide appropriate accommodations to 

Plaintiff, who unequivocally will suffer irreparable harm as a result of the City’s denial of such 

services, the balance of hardship "would tip decidedly toward [P]laintiff[] if relief were denied." 

Caldwell v. Blum, 621 F.2d at 498-99; see also Westenfelder v. Ferguson, 998 F. Supp. 146, 158 

 

3

 As noted above, the evidence will show that a transfer of plaintiff to the Montgomery County deaf residential 

facility will be significantly less costly than the provision of interpreter services at his current placement. 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 10 of 13
(D. R.I. 1998) (holding that financial harm to the state caused by issuance of an injunction to 

require payment of welfare benefits does not rise to the level of hardship faced by plaintiffs). 

Further, in this case a delay could actually cause harm to defendant. If the court rules in 

Plaintiff’s favor only after the available openings at the deaf mental health facility in 

Montgomery County are filled, the City will be required to either develop a new program or 

provide expensive, comprehensive interpreter services at much greater expense than would be 

necessary today. 

In light of the great harm to Plaintiff if preliminary relief is not granted and the absence 

of comparable harm to the City, the balance clearly tips in favor of granting preliminary relief. 

VI. INJUNCTIVE RELIEF FOR CRAIG H. WOULD FURTHER THE PUBLIC 

INTEREST 

The requested relief is in the public interest. The public will benefit if Craig H. receives 

appropriate mental health services, no matter what the ultimate outcome of this litigation. As the 

Court held in Tugg v. Towey, “the public has an interest in providing for the full participation by 

persons with disabilities in the mental health benefits afforded by the state.” 864 F. Supp. at 

1211. Further, the public has an interest in prohibiting and remedying discrimination on the 

basis of disabilities. As the court stated in Judy B. v. Borough of Tioga, 889 F. Supp. 792, 802 

(M.D. Pa. 1995): 

Issuance of the injunction is consistent with the public interest in bettering the 

lives of the handicapped and allowing them to live lives on a footing equal to the 

non-handicapped, policies endorsed by Congress with passage of . . . Section 504 

of the Rehabilitation Act, and comparable legislation intended to remove 

impediments to the handicapped enjoying the same rights and privileges as all 

other citizens. 

See also John T., 2000 WL 558582 at *8 (“It is in the public interest to provide benefits to those 

entitled to them under the law.”); Westenfelder v. Ferguson, 998 F. Supp. at 159 (“[A]n 

injunction will promote the public interest here because the public as a whole has a predominant 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 11 of 13
interest in seeing that the functions of government are conducted lawfully for the benefit of all 

citizens.”) (emphasis in original); and Estate of Aitkin v. Shalala, 986 F. Supp. at 65 ("[T]he 

public interest is greatly served by assuring that the agency will perform its statutory duties 

carefully and fairly."). 

VII. CONCLUSION 

For the reasons set forth above, the City should be required to either place Plaintiff at the 

deaf mental health facility in Montgomery County or otherwise provide effective communication 

for all aspects of his residential treatment program. The Plaintiff respectfully requests that the 

Court enter an order in the form attached to this motion. 

Respectfully submitted, 

 A 

 

Edmond A. Tiryak, Esquire 

Attorney at Law 

Attorney ID No. PA 20501 

Post Office Box 229 

Wayne, PA 19087-0229 

(610) 341-9797 (voice) 

(610) 341-9356 (fax) 

etiryak@email.msn.com 

Rachel Mann, Esquire 

Attorney I.D. No. 49267 

Disabilities Law Project 

1315 Walnut Street, 4th Floor 

Philadelphia, PA 19107 

(215) 238-8070, Ext. 205 

Attorneys for Plaintiffs and the Class 

Date: June 11, 2004 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 12 of 13
IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA 

CRAIG H., by his next friend, CRISTINA : 

CORP-FRANCIS, : 

 : 

 Plaintiff, : C.A. No. 04-cv-1985 

 : 

 v. : 

 : 

CITY OF PHILADELPHIA : 

 : 

 Defendant. : 

__________________________________________: 

CERTIFICATE OF SERVICE. 

EDMOND A. TIRYAK, counsel for plaintiff, The undersigned hereby certifies that the 

attached documents have been filed electronically with the Court, and are available for viewing 

and downloading from the ECF system by the below counsel, who has consented to electronic 

service: 

Daniel L. Garry 

Deputy City Solicitor 

1515 Arch Street 

15th Floor 

Philadelphia, PA 19102-1595 

 Respectfully Submitted, 

 ______________________ 

 EDMOND A. TIRYAK 

Dated: June 10, 2004 

A

 

Case 2:04-cv-01985-TJS Document 2 Filed 06/11/04 Page 13 of 13