Smith v. Ochsner Medical Center - Westbank, LLC, et al.
Filing
34
ORDER AND REASONS granting 10 Motion to Dismiss for Failure to State a Claim. IT IS FURTHER ORDERED that Plaintiff's claims in the above-captioned matter are hereby DISMISSED without prejudice. Signed by Judge Carl Barbier on 1/23/2019. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RONNEKA SMITH
CIVIL ACTION
VERSUS
NO: 17-11898
OCHSNER MEDICAL CENTERWESTBANK, L.L.C., ET AL.
SECTION: “J” (1)
ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 10) filed by Defendants,
Ochsner Health System and Ochsner Medical Center – Westbank, L.L.C.
(collectively, “Ochsner”), Plaintiff Ronneka Smith’s (“Plaintiff”) opposition (Rec. Doc.
16), and Ochsner’s reply (Rec. Doc. 23). Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds that the motion
should be GRANTED.
FACTS AND PROCEDURAL HISTORY
This litigation arises from Ochsner’s alleged disability discrimination
pursuant to Title III of the ADA (“Title III”), Section 504 of the Rehabilitation Act
(“Section 504”), and Section 1557 of the Affordable Care Act, 42 U.S.C. 18116
(“Section 1557”). Plaintiff is a deaf individual who visited Ochsner for prenatal care
on approximately fifteen occasions between November 17, 2016 and June 14, 2017.
Plaintiff alleges that she received an in-person sign language interpreter during
1
approximately five visits, and she received a video remote interpreter during
approximately five visits. Upon demand by Plaintiff’s counsel, Ochsner also provided
a sign language interpreter during the delivery of Plaintiff’s child. Thereafter,
Plaintiff alleges that an Ochsner nurse scheduled an appointment with third-party
provider, Kid-Med Pediatric, but did not notify Kid-Med Pediatric of Plaintiff’s
disability.
Plaintiff sued Ochsner in federal court on November 6, 2017. Plaintiff alleges
that
Ochsner’s
failure
to
provide
necessary
accommodations
amounts
to
discriminatory treatment on the basis of her disability, and she suffered “humiliation,
fear, anxiety, emotional distress, isolation, segregation, invasion of her civil rights,
mental anguish, embarrassment, and inconvenience” as a result. Plaintiff seeks (1) a
declaratory judgment that Ochsner’s policies, procedures, and practices have
subjected Plaintiff to unlawful discrimination in violation of Title III, Section 504,
and Section 1557; (2) an injunction forbidding Ochsner from implementing or
enforcing any policy, procedure, or practice that denies deaf or hard of hearing
individuals, or their companions, meaningful access to and full and equal enjoyment
of Ochsner’s facilities, services, or programs; (3) an injunction ordering Ochsner to
develop, implement, promulgate, and comply with various policies concerning deaf or
hard of hearing patients; and (4) compensatory and nominal damages pursuant to
Section 504 and Section 1557, reasonable costs and attorneys’ fees pursuant to Title
III, Section 504, and Section 1557, interest on all amounts at the highest rates and
2
from the earliest dates allowed by law, and any and all other relief this Court finds
appropriate.
On February 22, 2018, Ochsner filed the instant Motion to Dismiss for Failure
to State a Claim, which Plaintiff opposes.
PARTIES’ ARGUMENTS
1.
Defendants’ Arguments
First, Ochsner argues that Plaintiff’s claims should be dismissed for failure to
state a claim. (Rec. Doc. 10-1, at 5). Ochsner asserts that Plaintiff has not alleged any
facts demonstrating that Ochsner failed to provide Plaintiff with auxiliary aids or
services where necessary to ensure effective communication, as is required in order
to state a claim under Title III, Section 504, and Section 1557. (Rec. Doc. 10-1, at 7).
Ochsner asserts that Plaintiff’s allegation that Kid-Med Pediatric failed to provide
her with auxiliary aids during a pediatric appointment does not constitute
discrimination by Ochsner. (Rec. Doc. 10-1, at 8). Additionally, Ochsner asserts that
Plaintiff fails to show she is entitled to compensatory damages because she has not
demonstrated that Ochsner intentionally discriminated against her. (Rec. Doc. 10-1,
at 8).
Second, Ochsner argues that Plaintiff’s claims for injunctive and declaratory
relief must be dismissed for lack of standing because Plaintiff fails to allege sufficient
facts to show there is a real and imminent threat of future harm. (Rec. Doc. 10-1, at
8-10). Ochsner emphasizes that Plaintiff has failed to allege any concrete,
3
particularized, and credible plan to return to Ochsner in the future. (Rec. Doc. 10-1,
at 12).
2.
Plaintiff’s Arguments
First, Plaintiff argues that she is entitled to seek compensatory damages
because Ochsner intentionally discriminated against her by failing to consistently
provide auxiliary aids and services. (Rec. Doc. 16, at 11). Plaintiff asserts that “[o]ne
can infer a plausible claim of intentional discrimination within Plaintiff’s complaint
through her allegations that across approximately fifteen doctor’s appointments at
the Defendant hospital, at approximately five visits the Defendant failed to provide
her necessary auxiliary aids and services.” (Rec. Doc. 16, at 14). Plaintiff avers that
her claims are not defeated by her alleged failure to request accommodations from
Ochsner, as Ochsner has an affirmative obligation to comply with Section 504. (Rec.
Doc. 16, at 15).
Second, Plaintiff argues that she has standing to seek injunctive relief and has
sufficiently alleged a real and imminent threat of harm. (Rec. Doc. 16, at 16). Plaintiff
asserts that the ADA relieves a person from engaging in the “futile gesture” of making
plans to return if the person has “actual notice” that the defendant does not intend to
comply with the ADA. (Rec. Doc. 16, at 17). Additionally, Plaintiff alleges that she
has standing pursuant to the “Deterrent Effect” Test. (Rec. Doc. 16, at 18). Plaintiff
argues that the deterrent effect of Ochsner’s inconsistent provision of auxiliary aids
and services to Plaintiff is an “actual or imminent” injury that is not conjectural or
hypothetical. (Rec. Doc. 16, at 18). Alternatively, Plaintiff argues that she has
4
standing to seek injunctive relief because she has sufficiently pled intent to return to
Ochsner’s hospital in light of the proximity of the hospital to her home, her past
patronage of the hospital, and the fact that her child was born at the hospital. (Rec.
Doc. 16, at 20-21).
3.
Defendants’ Arguments in Reply
In reply, Ochsner first argues that Plaintiff’s complaint should be dismissed
because it fails to state a claim for disability discrimination as a matter of law. (Rec.
Doc. 23, at 2). Ochsner emphasizes that applicable law does not require Ochsner to
provide Plaintiff with interpreter services at every visit; rather, appropriate auxiliary
aids and services must be furnished where necessary to ensure effective
communication. (Rec. Doc. 23, at 2). Ochsner asserts that Plaintiff fails to allege any
facts that, taken as true, show ineffective communication during her treatment at
Ochsner. (Rec. Doc. 23, at 4). Additionally, Ochsner notes that Plaintiff wholly fails
to address Ochsner’s argument that it cannot be held liable for the actions or
inactions of third-party provider, Kid-Med Pediatric. (Rec. Doc. 23, at 6).
Second, Ochsner argues that Plaintiff’s claims for injunctive and declaratory
relief should be dismissed for failure to allege a deterrent effect or a real or immediate
threat of future harm. (Rec. Doc. 23, at 7). Ochsner asserts that Plaintiff fails to plead
facts sufficient to support her theory that standing exists pursuant to the “Deterrent
Effect” Test, which has not been adopted by the Fifth Circuit. (Rec. Doc. 23, at 7).
Specifically, Ochsner notes that Plaintiff never pled in her complaint that she was
deterred from visiting Ochsner and, indeed, asserted that she plans to visit the
5
hospital in the future. (Rec. Doc. 23, at 8). Additionally, Ochsner argues that Plaintiff
fails to plead facts sufficient to demonstrate the existence of a real or immediate
threat of future discrimination by Ochsner. (Rec. Doc. 23, at 9). Ochsner notes that
although Plaintiff has asserted that she is likely to return to the hospital in the
future, she has failed to establish that she is likely to suffer discrimination at a future
visit such that injunctive relief is appropriate. (Rec. Doc. 23, at 9). Ochsner argues
that Plaintiff has also failed to establish that visiting Ochsner in the future would be
a “futile gesture” because she does not have “actual notice” that Ochsner does not
intend to comply with the ADA. (Rec. Doc. 23, at 10).
Finally, Ochsner opposes Plaintiff’s request that this Court grant her
additional time to file an amended complaint if this Court finds her claims to be
inadequate. (Rec. Doc. 23, at 11). Ochsner emphasizes that Plaintiff has already filed
an amended complaint and that the opposition gives no indication of what factual
allegations Plaintiff could add in a second amended complaint to save her claims.
(Rec. Doc. 23, at 11).
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The complaint must “give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Dura Pharm., Inc. v. Broudo, 544 U.S.
336, 346 (2005). The allegations “must be simple, concise, and direct.” Fed. R. Civ. P.
8(d)(1).
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“Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege
any set of facts in support of his claim which would entitle him to relief.” Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must plead enough facts to “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the
plaintiff pleads facts that allow the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. A court must accept all wellpleaded facts as true and must draw all reasonable inferences in favor of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal,
75 F.3d 190, 196 (5th Cir. 1996). However, the court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. “[C]onclusory
allegations or legal conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor, 296 F.3d at 378.
A dismissal for lack of standing is properly brought under Rule 12(b)(1). Harold
H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011). When
standing is challenged in conjunction with other Rule 12 motions, “the court should
consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the
merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A court should
grant a motion to dismiss for lack of subject matter jurisdiction “only if it appears
certain that the plaintiff cannot prove any set of facts in support of his claim that
7
would entitle plaintiff to relief.” Home Builders Ass'n of Miss., Inc. v. City of Madison,
Miss., 143 F.3d 1006, 1010 (5th Cir.1998).
DISCUSSION
I.
Standing to obtain injunctive and declaratory relief
A Court must dismiss a cause of action for lack of subject matter jurisdiction
“when the court lacks the statutory or constitutional power to adjudicate the case.”
See Home Builders Ass’n of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010
(5th Cir. 1998). In deciding whether to grant a motion to dismiss pursuant to Rule
12(b)(1), the Court may consider the complaint alone, the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the Court’s resolution of those facts that are in dispute.
Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009).
In order for a plaintiff to have standing, the plaintiff must prove: (1) a concrete
and particularized injury in fact that is actual or imminent, (2) a causal connection
between the injury and the defendant’s conduct, and (3) a likelihood that the injury
will be redressed by the relief sought. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). Where the injury occurred in the past, a plaintiff seeking
injunctive relief must show that there is a “real or immediate threat that he will be
wronged again” by the same defendant. Plumley v. Landmark Chevrolent, Inc., 122
F.3d 308, 312 (5th Cir. 1997).
The ADA alters the traditional standing analysis by explicitly relieving an
individual of the obligation to engage in a “futile gesture” where the individual has
8
“actual notice” that the defendant does not intend to comply with the ADA. See 42
U.S.C. § 12188(a)(1) and 28 C.F.R. § 36.501(a). Moreover, a plaintiff seeking
injunctive relief under Title III is not required to demonstrate intentional
discrimination. See Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App’x 180, 18384 (5th Cir. 2015) (applying an intentional discrimination standard to the issue of
compensatory
damages
under
Section
504,
but
omitting
the
intentional
discrimination analysis when considering the issue of injunctive relief under Title
III).
“The Fifth Circuit has not expressly considered the proper approach to
determining standing in the typical Title III case.” Betancourt v. Ingram Park Mall,
L.P., 735 F. Supp. 2d 587, 600 (W.D. Tex. 2010). The Ninth Circuit’s “deterrent effect
doctrine” based on the provision in Title III guaranteeing “equality of opportunity”
for disabled individuals becomes relevant when an individual suffers “continuing
adverse effects where a defendant’s failure to comply with the ADA deters her from
making use of the defendant’s facility.” Civil Rights Educ. & Enf’t Ctr. v. Hosp.
Properties Tr., 867 F.3d 1093, 1098 (9th Cir. 2017) (internal citations omitted).
According to this doctrine that has been utilized by district courts within the Fifth
Circuit, an individual who is denied “the opportunity to participate in or benefit from
a good, service, facility, privilege, advantage, or accommodation,” 1 whether directly
or because she is deterred from revisiting due to ADA noncompliance, suffers an
injury sufficient to convey standing. Betancourt, 735 F. Supp. 2d at 602.
1
42 U.S.C. § 12182(b).
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In Betancourt, the Middle District of Texas concluded that a plaintiff need not
engage in the “futile gesture” of delineating when she planned to return to a shopping
mall that was not compliant with the ADA because she suffered an imminent injury.
Id. Specifically, she was deterred from frequenting the business due to her actual
knowledge of the shopping mall’s noncompliance with the ADA. Id. (citing Steger v.
Franco, 228 F.3d 889 (8th Cir. 2000) (“[a]lthough plaintiffs need not engage in the
‘futile gesture’ of visiting a building containing known barriers that the owner has no
intention of remedying … they must at least prove knowledge of the barriers and that
they would visit the building in the imminent future but for those barriers”).
The Eastern District has not adopted the deterrent effect doctrine. Rather, in
Tatum v. Board of Supervisors for the University System of Louisiana, Judge Africk
held that “plaintiffs may demonstrate an injury in fact if they are unable to visit a
particular place or participate in a particular activity in the future, and they have
done so in the past.” 9 F. Supp. 3d 652, 656 (internal citations omitted).
Here, the critical issue is whether Plaintiff has suffered an injury in fact that
is sufficient to convey standing. It is clear that Ochsner’s alleged conduct caused
Plaintiff’s injury and a favorable court decision will redress her injury. Taking as true
all allegations raised in the complaint and following the reasoning of Betancourt and
Tatum, Plaintiff has standing to seek injunctive and declaratory relief because she
has alleged that Ochsner has discriminated against her on the basis of her disability
in the past and she has expressed an affirmative intention to visit the hospital again
in the future given that her child was born there and she lives in close proximity. For
10
these reasons, Plaintiff has sufficiently pleaded a real and immediate threat of future
injury.
II.
12(b)(6) Motion to Dismiss
Title III Claim
To state a claim under Title III, a plaintiff must allege that (1) she is disabled
within the meaning of the ADA; (2) the defendant owns, leases, or operates a place of
public accommodation; and (3) the defendant discriminated against the plaintiff by
denying her a full and equal opportunity to enjoy the services the defendant provides.
42 U.S.C. § 12182(a). Covered entities are charged with furnishing “appropriate
auxiliary aids and services where necessary to ensure effective communication with
individuals with disabilities.” 28 C.F.R. § 36.303(c). “The type of auxiliary aid or
service necessary to ensure effective communication will vary in accordance with the
method of communication used by the individual; the nature, length, and complexity
of the communication involved; and the context in which the communication is taking
place.” 28 C.F.R. § 36.303(c)(ii). Title III allows a plaintiff to sue for injunctive relief,
but it does not provide for money damages. 42 U.S.C. § 12188(a)(1).
In Lockwood v. Our Lady of the Lake Hospital, Inc., the Middle District of
Louisiana denied defendant hospital’s motion to dismiss a suit arising out of
emergency care rendered to a deaf individual. No. CV 17-00509-SDD-EWD, 2018 WL
3451514, at *1 (M.D. La. July 17, 2018). Despite a request from Plaintiff’s friend that
Defendant provide an ASL interpreter upon Plaintiff’s arrival at the hospital,
Plaintiff asserted in his complaint that Defendant did not provide an interpreter and
11
instead attempted to communicate with him by using a loud voice, lip-reading, and
making rudimentary gestures. Id. Plaintiff also asserted that he was asked to sign
various documents without the aid of a sign language interpreter or VRI machine. Id.
Similarly, in Benavides v. Laredo Medical Center, a deaf individual sued
defendant hospital under Title III and Section 504 for failing to provide interpretive
services despite numerous requests. No. CIV.A. L-08-105, 2009 WL 1755004, at *1
(S.D. Tex. June 18, 2009). Plaintiff asserted in his complaint that on his first visit to
the hospital, Defendant failed to comply with his request for a sign-language
interpreter and proceeded to treat and diagnose him without informing him about his
condition. Id. Plaintiff asserted that he stayed in the hospital for five days a couple of
months later, and Defendant did not provide a sign-language interpreter at any time
despite his request. Id. Plaintiff alleged that nurses instead attempted to
communicate with him through written notes. Id. As a result, he was diagnosed and
treated without any awareness of “what was happening to him.” Id. Plaintiff alleged
that Defendant “never provided effective communication for Plaintiff to understand
his condition or treatment options.” Id. Finally, Plaintiff asserted in his complaint
that Defendant failed to comply with his request for an interpreter during his third
visit to the hospital. Id. at *2. The Southern District of Texas denied Defendant’s
motion to dismiss for failure to state a claim. Id. at *9.
Here, there is no dispute that Plaintiff is disabled within the meaning of the
ADA or that Ochsner owns, leases, or operates a place of public accommodation.
Rather, the parties disagree over whether Ochsner discriminated against Plaintiff by
12
denying her a full and equal opportunity to enjoy the services the defendant provides
as is required to state a claim under Title III. In her complaint, Plaintiff alleges that
she received an in-person sign language interpreter on approximately five occasions
and a video remote interpreter on approximately five occasions. (See Rec. Doc. 6, at
6). Additionally, Ochsner complied with Plaintiff’s request for a sign language
interpreter during the delivery of her child. (See Rec. Doc. 6, at 6). Plaintiff states in
her opposition to Ochsner’s motion to dismiss that she was not provided with
auxiliary aids and services at approximately five visits. (Rec. Doc. 16, at 14). However,
Plaintiff does not provide facts to demonstrate that she was denied effective
communication during any of her visits. Plaintiff asserts only that Ochsner’s failure
to provide Plaintiff with the necessary accommodations on various occasions amounts
to discriminatory treatment on the basis of her disability. (See Rec. Doc. 6, at 7). Given
that Plaintiff does not allege specific facts to raise a reasonable inference that
Ochsner discriminated against Plaintiff by denying her a full and equal opportunity
to enjoy the services that Ochsner provides, Plaintiff fails to state a claim under Title
III.
Section 504 and Section 1557 Claims
Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.”
29 U.S.C. § 794. Programs or activities receiving federal funding “must afford
13
handicapped persons equal opportunity to obtain the same result, to gain the same
benefit, or to reach the same level of achievement, in the most integrated setting
appropriate to the person’s needs.” 45 C.F.R. § 84.4(b)(2).
To state a Section 504 claim, in addition to showing that the entity receives or
directly benefits from federal financial assistance, a plaintiff must allege: “(1) that
[she] has a qualifying disability; (2) that [she] is being denied the benefits of services,
programs, or activities for which the [covered entity] is responsible, or is otherwise
discriminated against by the [covered entity]; and (3) that such discrimination is by
reason of [her] disability.” Esparza v. Univ. Med. Ctr. Mgmt. Corp., No. CV 17-4803,
2017 WL 4791185, at *9 (E.D. La. Oct. 24, 2017) (internal quotation marks and
citations omitted).
Pursuant to Section 1557, “an individual shall not, on the ground prohibited
under . . . section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded
from participation in, be denied the benefits of, or be subjected to discrimination
under, any health program or activity, any part of which is receiving Federal financial
assistance….” 42 USC § 18116. Both monetary damages and injunctive relief are
available under Section 504 and Section 1557. In the Fifth Circuit, “in order to receive
compensatory damages for violations of [Section 504 and Section 1557], a plaintiff
must show intentional discrimination,” Delano-Pyle v. Victoria Cty., Tex., 302 F.3d
567, 575 (5th Cir. 2002).
In Benavides, the Southern District of Texas rejected defendant hospital’s
argument that Plaintiff’s claim for compensatory damages must fail because Plaintiff
14
failed to allege that any discrimination against him was intentional. Benavides v.
Laredo Med. Ctr., No. CIV.A. L-08-105, 2009 WL 1755004, at *6 (S.D. Tex. June 18,
2009). The Court concluded that Plaintiff sufficiently pleaded that Defendant
intentionally denied him access to interpretive services by allegedly diagnosing and
treating Plaintiff on three occasions without providing the services that Plaintiff
requested. Id.
Here, there is no dispute that Plaintiff is a disabled individual or that Ochsner
is a covered entity. The only matter in dispute is whether Ochsner intentionally
discriminated against Plaintiff by denying her a full and equal opportunity to enjoy
Ochsner’s services. Plaintiff alleges that during her fifteen pre-natal visits to
Ochsner, she was provided with an in-person sign language interpreter on
approximately five occasions and a video remote interpreter on approximately five
occasions. (See Rec. Doc. 6, at 6). Ochsner also complied with Plaintiff’s request to
provide a sign language interpreter during the delivery of Plaintiff’s child. (Rec. Doc.
6, at 6). Plaintiff states in her opposition to Ochsner’s motion to dismiss that she was
not provided with auxiliary aids and services at approximately five visits. (Rec. Doc.
16, at 14). However, Plaintiff fails to allege facts to support her legal conclusion that
she was denied effective communication during some of her visits. Accordingly,
Plaintiff’s amended complaint fails to state a claim for which relief may be granted
pursuant to Section 504 and Section 1557.
15
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Rec. Doc.
10) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims in the above-captioned
matter are hereby DISMISSED without prejudice.
New Orleans, Louisiana, this 23rd day of January, 2019.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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