10, 29, 59. Similarly, the District was required to monitor the activities of its contractors to ensure that they comply with all applicable laws. Settlement Agreement ¶ 24(a). The District, therefore, has the right and the obligation to make certain that its contractors provide their services in compliance with title II. This establishes for the purposes of this Motion, an agency relationship, based on the right to control, between the District and its contractors, regardless of the presence of the “independent contractor” label. Deliberate indifference does not require a showing of actual knowledge of the discriminatory acts. The District argues that, the District is deliberately indifferent depends on the “[w]hether knowledge, not what the other Defendants knew or should have Mot. District’s known.” Def.’s Dismiss 6. Proving deliberate indifference knowledge that a harm to a federally requires, “both protected right is substantially likely and a failure to act upon that Duvall v. Cnty. of likelihood.” 260 F.3d 1124, 1139 (9th Cir. 2001) (applying deliberate indifference standard from Kitsap, City 489 U.S. 378, 389 (1988), a § 1983 case, to a title II claim). of Canton v. Harris, However, a finding on whether the District was deliberately indifferent, at this stage, is premature. As explained above, a deliberate indifference inquiry should only be employed to determine the availability of compensatory damages. Part IV.C.2.a. Additionally, See supra deliberate indifference is a question of fact, and thus best submitted to a jury. See, e.g., Barnes v. 793 F. Supp. 2d 260, 284 (D.D.C. the question of District of Columbia, 2011) (“[O]rdinarily whether a municipality has a deliberately indifferent policy or custom is for the jury . . . .”). Here Plaintiffs not only seek compensatory damages, but also declaratory and injunctive relief, the availability of which does not rely on a finding of deliberate indifference. First Am. Compl. ¶ 38. While a finding on deliberate indifference, therefore, is not only premature, it would only address compensatory damages and not other relief sought by the Plaintiffs.
10, 29, 59. Similarly, the District was required to monitor the activities of its contractors to ensure that they comply with all applicable laws. Settlement Agreement ¶ 24(a). The District, therefore, has the right and the obligation to make certain that its contractors provide their services in compliance with title II. This establishes for the purposes of this Motion, an agency relationship, based on the right to control, between the District and its contractors, regardless of the presence of the “independent contractor” label. Deliberate indifference does not require a showing of actual knowledge of the discriminatory acts. The District argues that, “[w]hether the District is deliberately indifferent depends on the District’s knowledge, not what the other Defendants knew or should have known.” Def.’s Mot. Dismiss 6. Proving deliberate indifference requires, “both knowledge that a harm to a federally protected right is substantially likely and a failure to act upon that likelihood.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001) (applying deliberate indifference standard from City of Canton v. Harris, 489 U.S. 378, 389 (1988), a § 1983 case, to a title II claim). However, a finding on whether the District was deliberately indifferent, at this stage, is premature. As explained above, a deliberate indifference inquiry should only be employed to determine the availability of compensatory damages. See supra Part IV.C.2.a. Additionally, deliberate indifference is a question of fact, and thus best submitted to a jury. See, e.g., Barnes v. District of Columbia, 793 F. Supp. 2d 260, 284 (D.D.C. 2011) (“[O]rdinarily the question of whether a municipality has a deliberately indifferent policy or custom is for the jury . . . .”). Here Plaintiffs not only seek compensatory damages, but also declaratory and injunctive relief, the availability of which does not rely on a finding of deliberate indifference. First Am. Compl. ¶ 38. While a finding on deliberate indifference, therefore, is not only premature, it would only address compensatory damages and not other relief sought by the Plaintiffs.
hunter-dc-soi.docx