Hernandez v. Grisham

Decision Date14 October 2020
Docket NumberNo. CIV 20-0942 JB\GBW,CIV 20-0942 JB\GBW
Citation494 F.Supp.3d 1044
Parties Clarissa HERNANDEZ; Robert Hernandez; Shannon Woodworth and David Gallegos, Plaintiffs, v. Michelle Lujan GRISHAM ; Ryan Stewart; Kathyleen M. Kunkel and the State of New Mexico, Defendants.
CourtU.S. District Court — District of New Mexico

A. Blair Dunn, Jared R. Vander Dussen, Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, Attorneys for the Plaintiffs.

Matthew L. Garcia, Chief General Counsel to Governor Michelle Lujan Grisham, Kyle P. Duffy, Associate General Counsel to Governor Michelle Lujan Grisham, Maria S. Dudley, Associate General Counsel to Governor Michelle Lujan Grisham, Office of the Governor, Santa Fe, New Mexico, Attorneys for Defendants Governor Michelle Lujan Grisham, Secretary Ryan Stewart, and Secretary Kathyleen M. Kunkel.

Hector Balderas, Attorney General for the State of New Mexico, Erin Elizabeth Lecocq, Nicholas M. Sydow, Civil Appellate Chief, New Mexico Office of the Attorney General, Santa Fe, New Mexico, Attorneys for the State of New Mexico.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the PlaintiffsVerified Emergency Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief, filed September 21, 2020 (Doc. 6)("Motion"). The Court held a hearing on the PlaintiffsMotion for a Temporary Restraining Order ("TRO") on September 30, 2020. See Clerk's Minutes at 1, filed September 30, 2020 (Doc. 18). The primary issues are: (i) whether the Plaintiffs have standing to sue Defendants Governor Michelle Lujan Grisham, Secretary Kathyleen Kunkel, and Secretary Ryan Stewart; (ii) whether the Plaintiffs have standing under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. ; (iii) whether the State of New Mexico has sovereign immunity with respect to the Plaintiffs’ claims; (iv) whether the Court should certify Plaintiffs’ proposed classes; (v) whether the Defendants’ policy on school reentry ("Reentry Guidance") violates the Plaintiffs’ substantive due process rights and equal protection rights under 42 U.S.C. § 1983 ; (vi) whether the Defendants’ Reentry Guidance violates the Plaintiffs’ procedural due process rights; (vii) whether Shannon Woodworth must exhaust her remedies under the IDEA before bringing an IDEA claim in federal court; and (viii) whether the Defendants have violated the Plaintiffs’ rights to a free appropriate public education ("FAPE") under the IDEA. The Court concludes that: (i) the Plaintiffs have shown that they likely have standing to bring claims against Secretary Stewart, but have failed to demonstrate that they are likely to have standing to sue Governor Lujan Grisham and Secretary Kunkel because they have not successfully established the causation and redressability prongs of the standing inquiry with respect to these two defendants; (ii) only Woodworth likely has standing under the IDEA, because Hernandez and Gallegos are not parents of special needs children; (iii) New Mexico likely has sovereign immunity with respect to the Plaintiff's § 1983 claims because the statute does not allow plaintiffs to sue states directly for constitutional violations, but likely lacks sovereign immunity under the IDEA because Congress has abrogated state sovereign immunity under the IDEA; (iv) the Court likely will not certify Plaintiffs’ proposed subclasses, because Plaintiffs have not established that they are likely to establish commonality and typicality successfully on the merits pursuant to rule 23(a) of the Federal Rules of Civil Procedure ; (v) the Plaintiffs’ substantive due process and equal protection claims are unlikely to succeed on the merits because the Reentry Guidance is rationally related to a legitimate state interest, and remote instruction does not per se violate a state's duty to provide adequate free public education; (vi) the Defendants have not violated the Plaintiffs’ procedural due process rights because the re-entry guidance is quasi-legislative; (vii) Woodworth need not exhaust the available administrative remedies under the IDEA because the deficiencies in her IEP present a purely legal question; and (viii) a temporary restraining order is appropriate with respect to Woodworth alone because she is likely to succeed in demonstrating that her Individualized Education Plan ("IEP") violates the IDEA. The Court, therefore, grants in part and denies in part the Motion for Preliminary Injunction and TRO.

FINDINGS OF FACT

"A temporary restraining order requires the Court to make predictions about the plaintiff's likelihood of success." Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d 1174, 1179 (D.N.M. 2011) (Browning, J.). Rule 52 of the Federal Rules of Civil Procedure states: "In granting or refusing an interlocutory injunction, the court must [ ] state the findings and conclusions that support its action." Fed. R. Civ. P. 52(a)(2). " [T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.’ " Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d at 1179 (quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) )(alteration in Herrera v. Santa Fe Public Schools only). See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ("[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits."); Firebird Structures, LCC v. United Bhd. of Carpenters and Joiners of Am., Local Union No. 1505, 252 F. Supp. 3d 1132, 1140 (D.N.M. 2017) (Browning, J.).

The United States Court of Appeals for the Tenth Circuit notes "that when a district court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits." Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, "[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings." Heideman v. S. Salt Lake City, 348 F.3d at 1188.

Thus, while the Court does the best it can to make good findings from the record that it has and in the short time that it has to make findings, these findings of fact are relevant only to the extent of a TRO, and do not bind the Court at trial. Accordingly, the Court finds as follows:

1. Plaintiffs Clarissa and Robert Hernandez are the parents of four children, ages eight to fifteen, in Lea County, New Mexico. See Plaintiff's Original Complaint and Request for Temporary Restraining Order ¶ 1, at 2, filed September 16, 2020 (Doc. 1)("Complaint"); Declaration of Clarissa Hernandez in Support of Applications for a Temporary Restraining Order ¶¶ 1-9, at 1-2 (executed August 18, 2020), filed September 21, 2020 (Doc. 6-2).

2. Plaintiff Shannon Woodworth is the parent of a school-aged child with special needs. See Complaint ¶ 2, at 2.

3. Woodworth's child has "an individual education program (IEP)"1 and "has not been provided with many" of her IEP services "since school was shut down." Declaration of Shannon Woodworth in Support of Applications for a Temporary Restraining Order ¶¶ 5-6, at 2 (executed September 18, 2020), filed September 21, 2020 (Doc. 6-3)("Woodworth Decl.").

4. Woodworth's daughter has "regress[ed]" since schools closed for in person instruction and "is now failing in her courses." Woodworth Decl. ¶ 13, at 2-3.

5. Plaintiff David Gallegos is an elected representative in the New Mexico House of Representatives and is an elected member of the Board of Education for Eunice Public Schools. See Complaint ¶ 3, at 2; Representative David M. Gallegos, New Mexico Legislature, https://nmlegis.gov/Members/Legislator?SponCode=HGADV (last visited Sept. 21, 2020).

6. Defendant Michelle Lujan Grisham is the Governor of New Mexico. See Complaint ¶ 4, at 2; Michelle Lujan Grisham, Office of the Governor, https://www.governor.state.nm.us/our-leadership/governor/ (last visited Sept. 21, 2020).

7. Defendant Ryan Stewart is the Secretary of Education for the State of New Mexico. See Complaint ¶ 5, at 2; Ryan Stewart, Office of the Governor, https://www.governor.state.nm.us/our-leadership/public-education-department/ (last visited Sept. 21, 2020).

8. Defendant Kathyleen M. Kunkel is the Secretary for the New Mexico Department of Health. See Complaint ¶ 6, at 2; Office of the Secretary, New Mexico Department of Health, https://www.nmhealth.org/about/asd/ots/ (last visited Oct. 10, 2020).

9. The coronavirus disease 2019 ("COVID-19") is a pandemic that has spread around the world, within the United States of America, and in New Mexico. See Coronavirus disease 2019 (COVID-19), Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/coronavirus/symptoms-causes/syc-20479963 (last visited Oct. 12, 2020)("Mayo Clinic").

10. As of February 11, 2020, there were twelve confirmed COVID-19 cases in the United States. See Previous U.S. COVID-19 Case Data, Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/previouscases.html (last visited Sept. 29, 2020); Cases in the U.S., CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Sept. 27, 2020).

11. As of October 10, 2020, there have been 7,525,920 cases of COVID-19 in the United States, and 211,311 deaths. See WHO Coronavirus Disease (COVID-19) Dashboard, World Health Organization, https://covid19.who.int/ (last visited Oct. 10, 2020).

12. As of October 10, 2020, New Mexico has had 32,722 cases and 907 deaths. See 2019 Novel Coronavirus Disease (COVID-19), New Mexico Department of Health (DOH), https://cv.nmhealth.org/ (last visited Oct. 10, 2020).

13. COVID-19 is a contagious disease that is spread through respiratory droplets that are released when infected individuals cough

, sneeze, or talk. See Mayo Clinic.

14. Risk factors for COVID-19 are close...

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