Collins v. New Orleans Home for Incurables
ORDER & REASONS. It is ORDERED Defendant's 58 Motion for Summary Judgment as to the ADA Title III, Rehabilitation Act, and FHA claims is GRANTED. All federal claims are dismissed with prejudice. It is FURTHER ORDERED that this Court exercises its discretion not to entertain Plaintiff's state law claims. These claims are dismissed without prejudice. Signed by Judge Carl Barbier on 10/14/2016. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS HOME FOR
ORDER & REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
58) filed by Defendant, New Orleans Home for Incurables, doing
business as the John J. Hainkel, Jr. Home & Rehabilitation Center
(“Defendant”); an Opposition thereto (Rec. Doc. 73) by Plaintiff,
Defendant (Rec. Doc. 67); a Surreply filed by Plaintiff (Rec. Doc.
78); and a Supplemental Memorandum filed by Defendant (Rec. Doc.
79). Having considered the motion, the parties’ submissions, the
record, and the applicable law, the Court finds, for the reasons
expressed below, that the motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
regarding the use of a power wheelchair. Plaintiff is a paraplegic
as a result of a gunshot wound which he incurred at the age of
Since approximately 1996, Plaintiff has resided at a
nursing home (“Hainkel Home”), which is owned and operated by
Plaintiff alleges that during the majority of his
residency at Hainkel Home, he transported himself via a power
wheelchair, which allowed him to travel within and outside of
As a paraplegic, Plaintiff has a limited ability to
Plaintiff further alleges that in 2013, his power
wheelchair stopped working and became inoperable.
friends purchased Plaintiff a new power wheelchair by making
payments for the power wheelchair directly to Defendant, who would
in turn purchase the power wheelchair. On April 7, 2014, Defendant
used the money donated by Plaintiff’s friends to purchase Plaintiff
a new power wheelchair.
From April 2014 until July 2014, Plaintiff used the newly
Plaintiff operated the power wheelchair during this period, both
in Hainkel Home and in the community.
Ms. Fannie Denson, the
facility driver at Hainkel Home, reported that Plaintiff operated
the power wheelchair dangerously.
(Rec. Doc. 58-23, at 7-8).
Denson testified that she witnessed Plaintiff “run out into
traffic” and nearly get hit by vehicles in the streets of New
Orleans several times.
Id. at 8.
Defendant also refers the Court
to the deposition of Mary Brooks Rodrigue, President and Chairman
of Hainkel Home, who testified that she received ten phone calls
from people in the community who saw Plaintiff “racing out of
nowhere” unsafely in the streets.
Id. at 9.
Plaintiff disputes this characterization.
He avers that when
he traveled in the community, Plaintiff would sometimes come across
obstacles that would make people in the area believe he was having
trouble, but that these were usually situations he could handle
(Rec. Doc. 73-1, at 5).
Plaintiff also contends
that he operated the power wheelchair safely during that three
month period, that he was careful when crossing intersections, and
that he never received any ticket or warning from the police.
In late July 2014, Hainkel Home administrator Robert Rodrigue
observed Plaintiff as he returned to Hainkel Home from an outing
in the power wheelchair.
Mr. Rodrigue noticed at this time that
the power wheelchair was damaged, though the parties dispute the
extent of damage.
On July 20, 2014, Hainkel Home staff noted in
wheelchair was inoperable and that Plaintiff was to use a manual
wheelchair for mobility.
(Rec. Doc. 58-23, at 5).
states that he has not operated the power wheelchair since it was
taken into possession by Hainkel Home staff in late July 2014.
On August 12, 2014, a nurse practitioner entered a telephonic
order stating, “Based upon operations specialist and physical
therapist evaluation for safe operations of electric wheelchair,
resident deemed unsafe.
mobility via staff.”
Use manual wheelchair to facilitate safe
(Rec. Doc. 58-23, at 10).
Plaintiff’s attending physician, countersigned this order on or
about August 15, 2014.
In May 2015, Plaintiff fired Dr. Parikh as
his attending physician, and in that same month he hired Dr.
Lacorte in that position.
Dr. Lacorte has remained Plaintiff’s
attending physician ever since.
To date, Dr. Lacorte has not
wheelchair use, nor has he revised or countermanded the order
countersigned by Dr. Parikh.
Plaintiff filed the present lawsuit in this Court on May 4,
In his Complaint, Plaintiff alleges that by depriving him
of the use of his power wheelchair, Defendant has violated the
Fair Housing Act, Title III of the Americans with Disabilities Act
Plaintiff also asserts causes of action for
conversion and breach of contract under Louisiana law. As a result
injunctive relief as well as specific performance under state law.
Plaintiff also seeks statutory attorneys’ fees and costs.
In response, Defendant has filed the instant motion for
summary judgment requesting judgment in its favor with respect to
Plaintiff’s ADA, Rehabilitation Act, and Fair Housing Act claims.
Defendant also requests that this Court decline to exercise its
supplemental jurisdiction over the remaining state law claims.
Defendant asserts that the decision to deny Plaintiff access
to his power wheelchair was made by Plaintiff’s physicians, not by
Plaintiff’s attending physicians, whom Defendant asserts are third
In his opposition, Plaintiff first disputes the fundamental
issue of whether a physician order exists at this time ordering
Plaintiff not to use a power wheelchair.
Next, Plaintiff argues
that the decision to deny Plaintiff use of the power wheelchair
was Defendant’s own decision, not Dr. Lacorte’s, and that Defendant
should therefore not escape liability on that ground.
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
reasonable inferences are drawn in favor of the nonmoving party,
allegations or unsubstantiated assertions.
Little, 37 F.3d at
A court ultimately must be satisfied that “a reasonable
jury could not return a verdict for the nonmoving party.” Delta,
530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim.
See Celotex, 477 U.S. at 325.
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists.
See id. at 324.
The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial.
See, e.g., id. at 325; Little, 37 F.3d
AMERICANS WITH DISABILITIES ACT, REHABILITATION ACT, AND FAIR
Defendant for violations of the Fair Housing Act, 42 U.S.C. §
3604(f)(3)B); Title III of the Americans with Disabilities Act, 42
U.S.C. § 12181 et seq., (ADA); and § 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794 (Rehabilitation Act). All three statutory
schemes prohibit discrimination, and ultimately engage in the same
The parties have not distinguished between statutes in
See Ivy v. Williams, 781 F.3d 250, 254 (5th Cir.
2015) (stating that “the parties have not pointed to any reason
why Title II [of the ADA] and the Rehabilitation Act should be
court’s holding would apply to both statutes) (internal citations
“The [Rehabilitation Act] and the ADA are judged under the
same legal standards, and the same remedies are available under
Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).
Therefore, although the Court primarily emphasizes Title III of
the ADA, the “analysis is informed by the Rehabilitation Act, and
our holding applies to both statutes.” Frame v. City of Arlington,
657 F.3d 215, 224 (5th Cir. 2011).
Additionally, because the Fair
Housing Act statute in question focuses on “a refusal to make
services, when such accommodations may be necessary to afford such
person equal opportunity to use and enjoy a dwelling,” its focus
Rehabilitation Act, and [Fair Housing Act] are considered in
Forziano v. Indep. Grp. Home Living Program, Inc., 613
F. App’x 15, 18 (2d Cir. 2015) (summary order); see also Allen v.
New York City Hous. Auth., No. 15-173, 2016 WL 722186, at *6
(S.D.N.Y. Feb. 19, 2016) (noting that the three statutes were
applicable in failure to accommodate claims); United States v.
City of New Orleans, No. 12-2011, 2013 WL 1767787, at *4 n.1 (E.D.
La. April 24, 2013) (“[The FHA and ADA] are often interpreted in
Likewise, this Court interprets the three statutes in
tandem, while focusing on Title III of the ADA.
TITLE III OF THE ADA
The ADA provides a broad mandate “to eliminate discrimination
economic and social mainstream of American life.”
PGA Tour, Inc.
v. Martin, 532 U.S. 661, 676 (2001) (internal citations omitted).
discrimination in a major area of public life.
541 U.S. 509, 516-17 (2004).
Tennessee v. Lane,
Title I addresses employment, Title
II addresses public services, programs, and activities, and Title
III addresses public accommodations.
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or operates a place
42 U.S.C. § 12182(a).
To enforce this
promulgating regulations applicable to facilities and vehicles.
42 U.S.C. § 12186(b).
The regulations provide detailed standards
for the use of wheelchairs: “a public accommodation shall permit
individuals with mobility disabilities to use wheelchairs . . . or
other similar devices designed for use by individuals with mobility
disabilities in any areas open to pedestrian use.”
28 C.F.R. §
The word “wheelchairs” incorporates both the power-driven
wheelchairs apply to both types.
28 C.F.R. § 36.104.
Most Title III claims by wheelchair users are alleged against
See, e.g., No Barriers, Inc. v. Brinker Chili’s
Texas, Inc., 262 F.3d 496 (5th Cir. 2001).
In fact, the parties
do not point to, nor was this Court able to identify, a Title III
accommodation allow him to use his own wheelchair and to transfer
him into and out of his wheelchair. 1
Nevertheless, the language
of Title III generally, and 28 C.F.R. 311 in particular, is broad
enough to capture this case so long as Defendant discriminated
against Plaintiff because of his disability and refused to permit
him to use his power wheelchair in areas open to pedestrian use.
THE EXISTENCE OF A PHYSICIAN ORDER
The foundational question in this case is whether a physician
order is currently in place precluding Plaintiff from using the
power wheelchair. This is of primary significance because at least
some of the parties’ arguments hinge upon the existence, or not,
of a physician order, and the other arguments are strengthened by
the Court’s holding on this question.
Therefore, the Court takes
up this issue first.
The closest case identified by the parties appears to be Roberts v. McKinney,
where the plaintiff was an inmate in a correctional facility in Arkansas. No.
13-6134, 2015 WL 1208625, at *1 (W.D. Ark. Mar. 17, 2015). In that case, the
plaintiff claimed that due to his disability he required the use of a power
wheelchair for mobility, but that the administrators of the correctional
facility refused to accommodate him. Id. Plaintiff, acting pro se, brought
the claim under Title II of the ADA and on other grounds. Id. As to the ADA
claim, the court granted the defendants’ motion to dismiss without discussion
because the court found that the deputy director of the prison could not be
sued in her individual capacity under Title II. Id. at *5. Because the court
relied specifically on the fact that the plaintiff brought suit under Title II
yet sued the defendants in their individual capacities, to reach its conclusion,
that case is of limited applicability here.
Plaintiff argues that no physician order is currently in place
precluding Plaintiff from using the power wheelchair.
argument relies upon the following undisputed facts.
above, a nurse practitioner entered a telephonic order stating
that Plaintiff was deemed unsafe to use an electric wheelchair and
directing Plaintiff to use a manual wheelchair to facilitate safe
mobility on August 12, 2014.
On or about August 15, 2014,
Plaintiff’s attending physician, Dr. Parikh, countersigned this
Plaintiff subsequently fired Dr. Parikh as his attending
physician and in May 2015, Plaintiff hired Dr. Lacorte in that
Plaintiff’s use of power wheelchairs. 2
Dr. Lacorte testified that
In Dr. Lacorte’s Deposition, the following exchange occurred:
Have you ever written an order concerning Travis
Collins and his using or not using a power
I have no recollection of that although let me say
this. I did not write an order to use a wheelchair.
Did you write
I don’t have the orders with me so I don’t remember.
. . .
And if you had written an order concerning Mr.
Collins using or not using a power wheelchair, would
it be contained in the Hainkel Home records?
Yes, it would be in either the long order sheet or
the short order sheet.
wheelchair] was made by Hainkel Home and the previous doctor . .
. before I assumed his care.” (Rec. Doc. 73-2, at 6).
Dr. Lacorte also testified that Plaintiff’s ability to operate a
power wheelchair is “a question of whether he’s safe to operate a
motorized vehicle and regretably [sic] - - well, I don’t think he
is in my expert opinion.”
(Rec. Doc. 58-17, at 13).
Neither party defines “order” nor points to legal precedent
regarding whether such an order would survive the transfer of an
Defendant relies upon regulations provided
guidance regarding physician orders.
(Rec. doc. 67-1, at 3).
While making a separate argument than whether an order exists,
Defendant briefly refers to CMS regulations. 3 Id. Therefore, this
Court finds that CMS publications may be helpful in articulating
the definition of a physician order.
For purposes of the Medicare program, no general statutory
definition exists for “physician order” or “order.”
P. Blanchard and Margaret M. Manning, Evolving Medicare Policy on
Physician Orders: Fundamental Concepts but Higher Stakes, 2014
Health L. Handbook 13 (2014).
Rather, a “physician order” is
(Rec. Doc. 73-2, at 5-6). Neither Party has suggested that any order from Dr.
Lacorte is in the Hainkel Home records in long order nor short order form.
3 Defendant directs the Court’s attention to CMS regulation in supporting its
argument that Defendant is obligated to abide by physician orders. (Rec. Doc.
67-1, at 3).
commonly referred to as a communication from a physician (generally
the treating or attending physician) directing that a service be
for Medicare &
02, Medicare Benefit
Policy Manual, ch.
rev.2016) (defining order in the context of diagnostic tests)).
Defendant refers to the order as a “standing order.” 4
Doc. 58-23, at 23)
Although there is no agreed upon statutory
definition of standing order, this term is commonly understood to
consistently get the care they need over a period of time, without
the physician having to be present on a daily or hourly basis” to
constantly effectuate a re-order.
Christopher Young, Laboratory
Standing Orders, 9 J. Health Care Compliance 65 (2007).
Condition of Participation regulations provide guidance on when
standing orders may be used, at least in the context of hospitals.
42 C.F.R. § 482.24.
In pertinent part, Medicare requires that
hospitals “Ensure that the periodic and regular review of such
orders and protocols is conducted by the medical staff and the
continuing usefulness and safety of the orders and protocols . .
CMS comments provide further guidance: “We would expect
4 Plaintiff disputes this characterization of the order as far as it relates to
the period from which Dr. Lacorte became Plaintiff’s attending physician. (Rec.
Doc. 73-1, at 16).
[a hospital’s] policies and procedures to  address the process
by which a standing order is developed; approved; monitored;
initiated by authorized staff; and subsequently authenticated by
U.S. Dep’t. of Health and Human Serv.s, Proposed Rules,
76 Fed. Reg. 65891, 65896 (Oct. 24, 2011).
The Court finds this information instructive.
At least in
the context of standing orders in hospitals, the Medicare program
expects the facility to have policies and procedures to guide the
use and effectiveness of standing orders.
Presumably, a similar
expectation would apply to nursing facilities such as Hainkel Home.
Here, without pointing to a specific written policy or directive
from Hainkel Home on the issue, Defendant states that physician
orders do not lose their effect simply because a patient changes
his attending physician. (Rec. Doc. 67-1, at 2).
contradict the conclusion that a physician order survives the
transfer of an attending physician unless and until the assuming
physician countermands, revises, or replaces the existing order.
Thus, the Court concludes that the physician order precluding
Plaintiff from using the power wheelchair is in effect. 5
5 The Court notes that this issue could have been easily put to rest by Dr.
Lacorte either revising or countermanding Dr. Parikh’s order, or by signing a
new order. However, as noted, Dr. Lacorte apparently agrees with Dr. Parikh’s
DECISION MADE BY THIRD PARTY
Defendant’s first argument is that it could not have engaged
in a discriminatory act against Plaintiff because the decision to
preclude Plaintiff from using a power wheelchair was made by
Plaintiff’s physicians, and not by Defendant.
(Rec. Doc. 58-23,
Plaintiff’s attending physicians when Dr. Parikh counter-signed
the order and Dr. Lacorte did not revise or countermand it.
Defendant states that it is “absolutely obligated” to carry out
the order to deny Plaintiff use of the power wheelchair.
Doc. 79, at 2).
Therefore, Defendant suggests that Plaintiff’s
complaint should not have been directed at Defendant, but rather
at Plaintiff’s treating physicians who are responsible for the
Defendant supports its position with deposition
testimony from Hainkel Home administrator Robert Rodrigue as well
as two of Plaintiff’s experts that nursing homes are to defer to
the treating physician’s orders.
(Rec. Doc. 58-23, at 16-17).
Defendant points to a CMS regulation regarding long term care
facilities, which this Court presumes is applicable to Hainkel
Home. 6 42 C.F.R. § 483.40(b)(3) states that a physician must “sign
Neither party addressed in their memoranda whether Hainkel Home is a long term
A long term care facility must qualify as either a skilled
nursing facility or nursing facility, as those terms are defined in the Social
42 C.F.R. 483.5(a).
The Court presumes that Hainkel Home
satisfies the requirements to qualify as a long term care facility because
Defendant relies upon this regulation and Plaintiff did not challenge this
and date all orders” (except for the administration of influenza
and pneumococcal polysaccharide vaccines) for a patient in a
Standing alone, this regulation appears to provide
specifically at doctors.
However, 42 C.F.R. § 483.40 also
states that each resident in a long term care facility “must remain
under the care of a physician.”
Read together, these regulations
clearly delineate the responsibilities of the physician and the
long term care facility: the physician makes the orders and the
long term care facility executes the orders.
The Court has identified scant case law on this issue.
one instance, the Sixth Circuit heard an appeal of a Department of
Health and Human Services (HHS) decision affirming a civil money
Medicare and Medicaid regulations.
Crestview Parke Care Ctr. v.
Thompson, 373 F.3d 743 (6th Cir. 2004).
The defendant nursing
facility argued that it did not comply with a physician’s order
because “the residents did not ‘need’” the intervention called for
in the order.
Id. at 753.
The court “emphatically reject[ed]”
this argument, stating that the nursing facility “cannot defend an
alleged failure to adhere to a physician’s orders by contending
those orders are incorrect or misguided.” Id. The court continued
that if the facility believed the order was unnecessary, “the
proper course of action is to rework the patient’s comprehensive
plan of care” before proceeding to litigation.
To the extent
that this case is instructive, it demonstrates that facilities
such as Hainkel Home expose themselves to risk of lawsuit and
monetary penalty when they fail to carry out physician orders, and
independent and contrary determinations.
contention that the decision to preclude Plaintiff from using a
power wheelchair was Defendant’s and not the physicians’.
instructed courts to “assess the objective reasonableness of the
views of health care professionals without deferring to their
524 U.S. 624, 650 (1998).
But in Bragdon,
the defendant was a dentist, not a dental office, and so the Court
was never tasked with determining the objective reasonableness of
a facility that simply carried out the dentist’s order.
bypassed the standing order that it was obligated to follow.
accurately directed at Dr. Parikh and Dr. Lacorte for issuing and
confirming the order.
Therefore, the Court agrees with Defendant that if its only
participation in the matter was that of carrying out a physician
order, then summary judgment is appropriate.
argues that Defendant was not a mere bystander in the creation of
Dr. Parikh’s order.
As discussed above, Dr. Parikh counter-signed a pre-existing
order precluding Plaintiff’s wheelchair use on August 15, 2014.
Plaintiff asserts that Dr. Parikh was induced to make this order,
at least in part, by misleading information provided by Defendant.
wheelchair use because he had been told by Hainkel Home staff that
Plaintiff had flipped out of the wheelchair more than once while
attempting to navigate sidewalk ramps.
Plaintiff disputes that
this ever happened, and the only deposition testimony in the record
suggesting that Plaintiff did flip out of the power wheelchair
comes from Hainkel Home employees.
Plaintiff also references a report that Defendant obtained,
and which Dr. Parikh read prior to signing the order precluding
Plaintiff’s ability to ambulate safely in the power wheelchair.
Ms. Zornes assessed the Plaintiff and prepared a “Wheelchair Safety
Evaluation” in August 2014.
Among Ms. Zornes’ conclusions were
that Plaintiff’s ability to brake the power wheelchair was “poor,”
he was incapable of maintaining proper seating and positioning
within the chair, and he unsafely operated the power wheelchair in
various situations and places.
Dr. Parikh read the Wheelchair
Safety Evaluation, though the extent to which he relied upon it is
not specified. 7
In his deposition testimony, however, Dr. Parikh
stated that he assumed Ms. Zornes “must have” observed Plaintiff
operate the power wheelchair in the community as she prepared the
In fact, Ms. Zornes never observed Plaintiff operate the
power wheelchair in the community, but instead observed him only
inside Hainkel Home.
Even if Dr. Parikh based his decision to create the order on
misleading information found in the Wheelchair Safety Evaluation,
no evidence has been presented that Defendant played a role in
providing this misinformation.
Therefore, any shortcomings that
attributable to its author.
Plaintiff from using a power wheelchair was made by Plaintiff’s
Plaintiff by carrying out the physician order.
IT IS ORDERED for these reasons that Defendant’s Motion for
7 As stated above, the order states: “Based upon operations specialist and
physical therapist evaluation for safe operations of electric wheelchair,
resident deemed unsafe. Use manual wheelchair to facilitate safe mobility via
staff” (emphasis added).
Presumably, the physical therapist evaluation
referenced by the order is Ms. Zornes’ Wheelchair Safety Evaluation.
Rehabilitation Act, and FHA claims is GRANTED. 8 All federal claims
are dismissed with prejudice.
IT IS FURTHER ORDERED that this Court exercises its discretion
not to entertain Plaintiff’s state law claims.
These claims are
dismissed without prejudice.
New Orleans, Louisiana this 14th day of October, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
Because the Court grants summary judgment on Defendant’s first argument,
Defendant’s medical decision making and direct threat arguments will not be
addressed. The Court expresses no opinion on these arguments.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?