Green v. Oceans Behavioral Hospital of Kentwood, LLC et al

Filing 40

ORDER AND REASONS regarding 34 Motion to Dismiss for Failure to State a Claim and 19 Motion to Dismiss. For the foregoing reasons, the Court DENIES defendants' first motion to dismiss and to stay as moot. Further, the Court GRANTS IN PART defendants' second motion to dismiss and to stay. Plaintiff's claims for injunctive relief are DISMISSED WITHOUT PREJUDICE for lack of standing. Defendants' motion is otherwise DENIED. Signed by Judge Sarah S. Vance on 4/3/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH GREEN

CIVIL ACTION

VERSUS

NO. 17-12215

OCEANS BEHAVIORAL HOSPITAL
OF KENTWOOD, LLC, ET AL.

SECTION “R” (2)

ORDER AND REASONS
Before the Court are defendants’ two motions to dismiss and to stay.1
For the following reasons, the Court denies the first motion as moot. The
Court grants the second motion as to plaintiff’s request for injunctive relief,
but denies the motion asserted on prematurity grounds.
I.

BACKGROUND
This case arises out of claims of disability discrimination in the

provision of healthcare services. 2 According to the complaint, Plaintiff
Joseph Green is deaf and communicates primarily in American Sign
Language (ASL).3 On November 19, 2016, plaintiff was admitted to Oceans
Behavioral Hospital of Kentwood after a psychiatric episode.4 Plaintiff

1
2
3
4

R. Doc. 19; R. Doc. 34.
R. Doc. 22.
Id. at 2 ¶ 1.
Id. at 6-7.

remained at the hospital until November 26, 2016.5 Plaintiff alleges that he
requested a sign language interpreter throughout his stay at the hospital, but
he was provided an interpreter on only one occasion. 6 Plaintiff further
alleges that, because he lacked an interpreter or other auxiliary aid, he was
unable to meaningfully engage in treatment and did not know the status of
his treatment or when he would be discharged. 7
On November 10, 2017, plaintiff filed suit against defendants Oceans
Behavioral Hospital of Kentwood, LLC and Oceans Healthcare, LLC.8 On
January 22, 2018, plaintiff filed an amended complaint adding Oceans
Acquisition, Inc. as a defendant.9 Plaintiff alleges that defendants failed to
accommodate his disability and failed to implement policies and train their
employees on the civil rights and communication needs of deaf individuals. 10
He asserts disability discrimination claims under the Louisiana Commission
on Human Rights statute, Title III of the Americans with Disabilities Act
(ADA), Section 504 of the Rehabilitation Act (RA), and Section 1557 of the
Patient Protection and Affordable Care Act (ACA). 11

5
6
7
8
9
10
11

Id. at 7 ¶ 19.
Id. at 7 ¶¶ 18-19.
Id. at 7 ¶ 21.
R. Doc. 1.
R. Doc. 22 at 5 ¶ 10.
Id. at 3 ¶¶ 3-4.
Id. at 3 ¶ 5.
2

Plaintiff requests

declaratory and injunctive relief, monetary damages, and attorneys’ fees. 12
Defendants now move to dismiss various claims, and for a stay of plaintiff’s
remaining federal claims.13
II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“sufficient factual matter, accepted as true, 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. at 678. A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. See Lormand v. US
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter

12
13

Id.
R. Doc. 34.
3

to raise a reasonable expectation that discovery will reveal relevant evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. The claim
must be dismissed if there are insufficient factual allegations to raise a right
to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is
apparent from the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

III. DISCUSSION
A. First Motion to Dismiss and to Stay
Defendants have filed two motions to dismiss and to stay in this
matter.14 The first motion, which is directed at the original complaint, seeks
dismissal based on insufficient service of process or, alternatively, for lack of
standing and prematurity, and a stay of plaintiff’s remaining federal claims.15
The second motion is directed at the amended complaint and no longer
asserts insufficient service.16 The record reflects that defendants were served
with process after the filing of the first motion to dismiss, but within the 90day period for service set out in Federal Rule of Civil Procedure 4(m). 17

14
15
16
17

R. Doc. 19; R. Doc. 34.
R. Doc. 19.
R. Doc. 34.
R. Doc. 30; R. Doc. 31; R. Doc. 32.
4

Defendants do not challenge the adequacy of this service. Defendants’
motion to dismiss based on insufficient service of process is therefore moot.
The alternative arguments presented in defendants’ first motion are
also moot. An amended complaint does not necessarily moot a pending
motion to dismiss. See 6 Wright & Miller, Federal Practice and Procedure §
1476 (3d. ed. 2017). But defendants’ second motion directly addresses the
amended complaint and re-urges its arguments as to standing, prematurity,
and a stay. Because the two motions requests the same relief,18 the first
motion is moot. See Melson v. Vista World Inc. and Assoc., No. 12-135, 2012
WL 6002680, at *12 (E.D. La. 2012) (explaining that, when a new “motion is
filed that specifically addresses an amended complaint, ‘it surely makes
sense to disregard’” the first motion (quoting Steven S. Gensler, 1 Federal
Rules of Civil Procedure, Rules and Commentary Rule 15)). Accordingly,
defendants’ first motion is denied as moot.
B. Oceans Healthcare, LLC
Defendants contend that Oceans Healthcare is not a proper party to
this action because it does not own, operate or lease Oceans Behavioral
Hospital.19

18
19

This assertion directly contradicts the amended complaint,

R. Doc. 19-1 at 13-14; R. Doc. 34-1 at 12-13.
R. Doc. 34-1 at 2 n.2.
5

which alleges that Oceans Healthcare “owns, leases, and/or operates Oceans
Behavioral Hospital Kentwood.” 20 The complaint further alleges that Oceans
Healthcare requires its hospitals to follow a uniform Code of Conduct, and
that Oceans Healthcare’s website lists Oceans Behavioral Hospital of
Kentwood as one of its locations. 21 Defendants cite no legal authority in
support of their request to dismiss Oceans Healthcare. Instead, they simply
contest plaintiff’s factual allegations.22 At this stage of the proceedings, the
Court must accept plaintiff’s well-pleaded facts as true. See Iqbal, 556 U.S.
at 679.

Defendants’ motion to dismiss Oceans Healthcare is therefore

denied.
C. Standing to Seek Injunctive Relief
Defendants argue that plaintiff lacks standing to seek injunctive relief
because he has not shown an intention to seek future treatment from
defendants.23 A plaintiff must satisfy the standing requirements of Article
III of the U.S. Constitution to establish the existence of an “actual case or
controversy” subject to federal jurisdiction. O’Shea v. Littleton, 414 U.S.

R. Doc. 22 at 4 ¶ 8.
Id. at 5 ¶ 9.
22
R. Doc. 34-1 at 2 n.2. The Court also notes that defendants’ argument
for a dismissal of Oceans Healthcare is presented only in a footnote in the
“Background” section of the brief.
23
Id. at 3.
6
20
21

488, 493-94 (1974). A motion to dismiss for lack of standing therefore
challenges the court’s subject matter jurisdiction, and is governed by Federal
Rule of Civil Procedure 12(b)(1).
As the party invoking federal jurisdiction, plaintiff bears the burden of
demonstrating each element of standing. See Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016). Standing requires that (1) the plaintiff suffered an
injury-in-fact; (2) the injury is “fairly traceable” to the challenged conduct of
the defendant; and (3) it must be “likely, as opposed to merely speculative,”
that the plaintiff’s injury will be redressed by a favorable judicial decision.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal
quotation marks and citation omitted).

To establish standing to seek

injunctive relief, a plaintiff must show a “real or immediate threat that the
plaintiff will be wronged again.” City of Los Angeles v. Lyons, 461 U.S. 95,
111 (1983).
Here, the complaint asserts that “[p]laintiff would seek Defendants’
healthcare services in the future, whether by choice or necessity and whether
as patient or companion, due to the proximity of Defendants’ medical
facilities to his home and their need for medical treatment; but he is deterred
from doing so due to the discrimination he faced and expects to face in the

7

future.”24 Defendants present a factual attack on plaintiff’s standing. See
Superior MRI Servs., Inc. v. Alliance Healthcare Servs., Inc., 778 F.3d 502,
504 (5th Cir. 2015) (explaining that a motion to dismiss for lack of standing
is “factual rather than facial if the defendant submits affidavits, testimony,
or other evidentiary materials” (internal quotation marks and citation
omitted)). Defendants offer the declaration of Laura Tarantino, the sole
managing member of Oceans Behavioral Hospital of Kentwood, who attests
that “Oceans Behavioral Hospital has a contract with the Deaf Action Center
for the provision of in-person American Sign Language interpreters upon
request.”25
Defendants also point out that the complaint alleges that plaintiff
resides in St. Tammany Parish, Louisiana, and that Oceans Behavioral
Hospital is located at 921 Avenue G, Kentwood, Louisiana.26 Defendants
argue that the hospital is located more than a one hour drive from St.
Tammany Parish, and is therefore not close to plaintiff’s home.27 Defendants
further represent that plaintiff never sought health care services from
defendants before or after November 2016. 28

24
25
26
27
28

R. Doc. 22 at 10 ¶ 38.
R. Doc. 34-2 at 2-3.
R. Doc. 34-1 at 6; see also R. Doc. 22 at 4 ¶¶ 6-7.
R. Doc. 34-1 at 6.
Id.
8

Because defendants make a factual attack on the complaint, plaintiff
must submit evidence to demonstrate that he has standing to seek injunctive
relief. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). But
plaintiff offers no affidavits or other evidence in support of standing.
Plaintiff’s memorandum in opposition simply reiterates the allegation in the
amended complaint that plaintiff would seek defendants’ healthcare services
in the future because of the proximity of the hospital to his home, but he is
deterred from doing so because of the discrimination he faced.29
The Court finds that plaintiff’s claim of future injury is too speculative
to support standing to seek injunctive relief. See Lyons, 461 U.S. at 111. The
Fifth Circuit has explained that “a disabled individual need not engage in
futile gestures before seeking an injunction; the individual must show only
that [the alleged barrier] actually affects his activities in some concrete way.”
Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir. 2011). But plaintiff
has not shown that returning to defendants’ hospital would be a futile
gesture. Plaintiff does not respond to Tarantino’s representation that the
hospital currently has a contract to provide sign language interpreters upon
request.30

29
30

R. Doc. 36 at 3-4.
R. Doc. 34-2 at 3 ¶ 7.
9

Moreover, plaintiff fails to demonstrate that he has a concrete intent to
return to defendants’ facility, or that he is otherwise affected by defendants’
alleged statutory violations in a concrete way.

See Deutsch v. Annis

Enterprises, Inc., 882 F.3d 169, 174 (5th Cir. 2018). Plaintiff does not
respond to defendants’ argument that the hospital is not in fact close to his
home. 31 Moreover, although the complaint alleges that plaintiff would seek
defendants’ healthcare services in the future because of a “need for medical
treatment,”32 plaintiff does not specify what kind of medical treatment he is
likely to need from defendants in the future. A past statutory violation alone
is insufficient to establish a concrete risk of future harm. See Spokeo, 136 S.
Ct. at 1549; Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 (5th Cir.
1998).
Plaintiff’s reliance on Friends of the Earth, Inc. v. Laidlow
Environmental Services, Inc., 528 U.S. 167 (2000), is unavailing. In that
case, members of the plaintiff organizations provided sworn affidavits
describing in detail their proximity to the subject river, their past use of the
area around the river, and their specific plans to continue using the river area
if not for their concerns about pollution. Id. at 181-83. Plaintiff fails to make

31
32

R. Doc. 34-1 at 6.
R. Doc. 22 at 10 ¶ 38.
10

a similarly concrete showing that he would be likely to use defendants’
services in the future if not for the lack of sign language interpreters.
Accordingly, plaintiff lacks standing to seek injunctive relief. Plaintiff’s
claims for injunctive relief are dismissed without prejudice.
D. Prematurity
Defendants argue that plaintiff’s discrimination claim under the
Louisiana Commission on Human Rights statute amounts to an allegation of
medical malpractice and is therefore premature. 33 The Louisiana Medical
Malpractice Act (LMMA) requires that malpractice claims against health
care providers be presented to a medical review panel before they can be
considered by a court. See La. R.S. 40:1231.8(A)(1)(a), (B)(1)(a)(i). The Act
defines malpractice as:
[A]ny unintentional tort or any breach of contract based on health care
or professional services rendered, or which should have been rendered,
by a health care provider, to a patient, including failure to render
services timely and the handling of a patient, including loading and
unloading of a patient, and also includes all legal responsibility of a
health care provider arising from acts or omissions during the
procurement of blood or blood components, in the training or
supervision of health care providers, or from defects in blood, tissue,
transplants, drugs, and medicines, or from defects in or failures of
prosthetic devices implanted in or used on or in the person of a patient.
La. R.S. 40:1231.1(A)(13) (emphasis added).

33

R. Doc. 34-1 at 6-7.
11

The Louisiana Supreme Court has explained that “the limitations of the
Medical Malpractice Act on the liability of qualified health care providers is
special legislation in derogation of the rights of tort victims,” and therefore
“any ambiguities therein must be strictly construed against coverage.”
Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 888 So. 2d 782, 787-88
(La. 2004). “[M]andatory pre-suit review by a medical review panel” is one
of the “primary limiting provisions available to private health care
providers.” Spradlin v. Acadia-St. Landry Med. Foundation, 758 So. 2d 116,
120 (La. 2000). The defendant “must show that it is entitled to a medical
review panel because the allegations fall within the LMMA.” LaCoste v.
Pendleton Methodist Hosp., LLC, 966 So. 2d 519, 523-24 (La. 2007).
To determine the applicability of the LMMA, courts consider whether
the “specific wrong alleged” by the plaintiff arises from medical malpractice,
not whether “the Court can discern a potential medical malpractice claim”
within the factual allegations in the complaint. Esparza v. Univ. Med. Ctr.
Mgmt Corp., No. 17-4803, 2017 WL 4791185, at *13-14 (E.D. La. 2017); see
also LaCoste, 966 So. 2d at 524 (explaining that the LMMA “appl[ies] only
to claims arising from medical malpractice”); Williamson, 888 So. 2d at 787
(warning that “[a]n expansive reading of the definition of medical
malpractice” is inconsistent with precedent).
12

Here, plaintiff alleges that defendants discriminated against him on
the basis of disability in violation of the Louisiana Commission on Human
Rights statute.34

This statute provides, in relevant part, that “it is a

discriminatory practice for a person to deny an individual the full and equal
enjoyment of the goods, services, facilities, privileges, advances, and
accommodations of a place of public accommodation” on the grounds of
disability. La. R.S. 51:2247. Plaintiff argues that his discrimination claim is
based on intentional conduct, and thus falls outside the statutory definition
of medical malpractice.35

The LMMA defines malpractice as “any

unintentional tort or any breach of contract.” La. R.S. 40:1231.1(A)(13)
(emphasis added). It is undisputed that plaintiff does not assert a breach of
contract.
Defendants point to no legal authority indicating that disability
discrimination can be considered an unintentional tort under Louisiana law.
See Esparza, 2017 WL 4791185, at *14 (noting that Louisiana courts have not
applied the LMMA to discrimination claims). Under the ADA and the RA, a
plaintiff must show intentional discrimination to recover compensatory
damages. See Delano-Pyle v. Victoria County, 302 F.3d 567, 574 (5th Cir.

34
35

R. Doc. 22 at 13 ¶ 57.
R. Doc. 36 at 6.
13

2002). The Court is not aware of any cases permitting recovery under the
Louisiana Commission on Human Rights statute absent a showing of
intentional discrimination. Cf. Semien v. Pizza Hut of Am., Inc., 204 F.3d
1115, 1999 WL 1328060, at *1 (5th Cir. 1999) (finding that plaintiffs failed to
show intentional discrimination in violation of La. R.S. 51:2247).
The amended complaint alleges intentional discrimination. Plaintiff
asserts that he and his family members repeatedly requested a sign language
interpreter, and that defendants denied or failed to respond to these
requests.36

Plaintiff further alleges that defendants were aware of his

obvious disability, and intentionally discriminated against him with
deliberate indifference to his rights and communication needs.37 The Fifth
Circuit has held that such conduct, if proven, can support a finding of
intentional discrimination in violation of the ADA and the RA. See Perez v.
Doctors Hosp. at Renaissance, Ltd., 624 F. App’x 180, 185-86 (5th Cir. 2015)
(finding a genuine dispute of material fact as to intentional discrimination
when evidence indicated “that the plaintiffs made repeated requests for
auxiliary aids, yet [defendant] failed on several occasions to provide effective
aids and in some instances refused to provide an [ASL] interpreter after one

36
37

R. Doc. 22 at 7-8.
Id. at 10.
14

had been requested”); Delano-Pyle, 302 F.3d at 575-76 (finding sufficient
evidence of intentional discrimination when police officer knew that deaf
individual had trouble understanding his commands, but did not attempt a
more effective form of communication).
There is thus no indication that plaintiff is “attempt[ing] to escape the
clear dictates of the Medical Malpractice Act by masking” a medical
malpractice claim as an intentional tort.

Richardson v. Advanced

Cardiovascular Sys., Inc., 865 F. Supp. 1210, 1218 (E.D. La. 1994); cf.
Zoblotsky v. Tenet Choices, Inc., No. 03-2957, 2007 WL 2670110, at *2 (E.D.
La. 2007) (explaining that “the gravamen of the claim seems to be that
Chateau did not believe that Plaintiff would be hurt by switching the drugs,
but should have known, which is a standard for negligent conduct, and not
intentional conduct”). Similar claims of intentional discrimination based on
a failure to accommodate the communication needs of deaf individuals
commonly arise outside the context of medical treatment. See, e.g., Univ. of
Tex. v. Camenisch, 451 U.S. 390 (1981) (university education); Delano-Pyle,
302 F.3d 567 (police stop).
Accordingly, the Court finds that plaintiff’s claim alleges intentional
conduct rather than an unintentional tort.

The Court notes that the

Louisiana Supreme Court has outlined a multi-factor test to determine
15

whether conduct by a health care provider constitutes medical malpractice.
See Coleman v. Deno, 813 So. 2d 303, 315-16 (La. 2002). Whether the
alleged tort is intentional is one of six factors in this test. Id. But the
Louisiana Supreme Court’s decisions applying the Coleman test all appear to
involve unintentional conduct. See, e.g., Billeaudeau v. Opelousas Gen.
Hosp. Auth., 218 So. 3d 513, 527 (La. 2016); Williamson, 888 So. 2d at 791.
Because the statutory definition of malpractice is restricted to unintentional
torts, La. R.S. 40:1231.1(A)(13), the five additional Coleman factors are
irrelevant as applied to intentional conduct. See LaCoste, 966 So. 2d at 529
(noting that the intentional tort “factor is not an issue in this case, as the
court of appeal correctly found that the plaintiffs’ allegations of intentional
tort need not be submitted to a medical review panel”).
Plaintiff’s claim under the Louisiana Commission on Human Rights
statute is thus not a medical malpractice claim. Defendants’ reliance on
Bernius v. Ochsner Medical Center-North Shore, LLC, No. 16-14730, 2016
WL 10586188 (E.D. La. 2016), is unpersuasive. The plaintiffs in that case
had submitted a request for review to a medical review panel that was “nearly
identical” to their complaint. Id. at *7. Because of the undisputed overlap
between the plaintiffs’ discrimination claim and their pending malpractice
claim, the Bernius Court found the discrimination claim premature without
16

analyzing whether the plaintiffs alleged intentional conduct. Id.; see also
Esparza, 2017 WL 4791185, at *15 (distinguishing Bernius). Here, plaintiff
represents that he has not filed a malpractice claim with a medical review
panel and he does not intend to file a malpractice action. 38
Because plaintiff’s discrimination claim is not a medical malpractice
claim, he is not required to present it to a medical review panel. Defendants’
request to stay plaintiff’s federal claims is therefore denied.

IV.

CONCLUSION
For the foregoing reasons, the Court DENIES defendants’ first motion

to dismiss and to stay39 as moot.
Further, the Court GRANTS IN PART defendants’ second motion to
dismiss and to stay.40 Plaintiff’s claims for injunctive relief are DISMISSED
WITHOUT PREJUDICE for lack of standing.

Defendants’ motion is

otherwise DENIED.
3rd
New Orleans, Louisiana, this _____ day of April, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
38
39
40

R. Doc. 36 at 8.
R. Doc. 19.
R. Doc. 34.
17