Powell v. Wheaton WIC Center

Filing 30

MEMORANDUM OPINION and ORDER Granting 22 Motion to Dismiss for Lack of Jurisdiction; Dismissing Complaint with Prejudice; Directing Clerk to close this case. Signed by Judge Paul W. Grimm on 2/11/2019. (c/m 2/11/19 km4s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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VALENE POWELL,
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Plaintiff,
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v.

Case No.: PWG-18-535
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WHEATON WIC CENTER,
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Defendant.
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MEMORANDUM OPINION AND ORDER
Plaintiff Valene Powell scheduled an appointment at the Wheaton WIC Center operated by
CCI Health & Wellness Services (“CCI”)1 for January 18, 2018, with the understanding that CCI
would provide an American Sign Language (“ASL”) interpreter for her. Compl. 6, ECF No. 1.2

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Defendant Community Clinic, Inc., improperly identified in the Complaint as “Wheaton WIC
Center,” operates with the trade name CCI Health & Wellness Services and will be referred to in
this Memorandum Opinion and Order as CCI. See Def.’s Mem. 1, ECF No. 22-1. The Clerk will
update the docket to reflect Defendant’s proper name.
CCI is a nonprofit corporation providing health care related services to
Montgomery and Prince George’s County residents. Among the services provided
by CCI is the administration of the Special Supplemental Nutrition Program for
Women, Infants, and Children (“WIC”) in Montgomery County. WIC provides
federal grants to states for supplemental foods, health care referrals, and nutrition
education for low-income pregnant, breastfeeding, and non-breastfeeding
postpartum women, and to infants and children up to age five who are found to be
at nutritional risk. Among the WIC sites operated by CCI is one in Wheaton,
Maryland (“Wheaton WIC Center”).
Id. at 2.
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For purposes of resolving Defendant’s Motion to Dismiss, I accept Plaintiff’s well-pleaded
allegations as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).

She arrived for her January 18, 2018 appointment, waited thirty minutes, and then was informed
“no interpreter today,” so she left. After that visit, CCI called Powell repeatedly over the course
of several months, but she has refused to take their calls and states that she “won’t call them back.”
Id. at 8; see also Pl.’s Aug. 28, 2018 Ltr., ECF No. 29 (stating that CCI persists in calling her). In
this lawsuit, Powell alleges that CCI violated the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12112–12117, by failing to provide an ASL interpreter for her. Id. at 7–
9. As I best I can discern, she seeks monetary damages of $100,000; it is unclear whether she also
seeks injunctive relief. Id. at 5.
Pending is CCI’s Motion to Dismiss, ECF No. 22.3 As CCI asserts, Title III of the ADA
does not provide for monetary damages, and insofar as Powell may seek injunctive relief, she has
not established that she has standing to bring a claim for injunctive relief, given that she refuses to
communicate with CCI. Accordingly, I will grant CCI’s Motion and dismiss this case.
Standard of Review
CCI contends that Powell cannot state a claim for monetary damages and this Court lacks
subject matter jurisdiction over Powell’s claim for injunctive relief because Plaintiff lacks
standing. Def.’s Mem. 1.4 When a defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
for lack of subject matter jurisdiction, asserting a facial challenge that “a complaint simply fails to
allege facts upon which subject matter jurisdiction can be based,” as CCI does here, “the facts

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The parties fully briefed the motion. ECF Nos. 22-1, 26, 27. A hearing is not necessary. See
Loc. R. 105.6. 
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When a plaintiff does not have standing, her claim is not justiciable. Flast v. Cohen, 392 U.S.
83, 95 (1968); Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne,
LLC, 713 F.3d 187, 198 (4th Cir. 2013). “Justiciability is an issue of subject-matter jurisdiction.”
Hamilton v. Pallozzi, 848 F.3d 614, 619 (4th Cir.), cert. denied, 138 S. Ct. 500 (2017).

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alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same
procedural protection as [s]he would receive under a 12(b)(6) consideration.” Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982); see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (noting
that, on a motion to dismiss, a plaintiff’s pleading of the elements of standing are “presum[ed] [to]
embrace those specific facts that are necessary to support the claim” (quoting Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 889 (1990))).
Thus, “the facts alleged in the complaint are taken as true, and the motion must be denied
if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009); see In re KBR, Inc., Burn Pit Litig., 925 F. Supp. 2d
752, 758 (D. Md. 2013) (quoting Kerns, 585 F.3d at 192). This Court must act “on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007) (citations omitted). The burden is on the plaintiff to
establish jurisdiction. Sherill v. Mayor of Balt., 31 F. Supp. 3d 750, 763 (D. Md. 2014) (citing
Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999)).
Discussion
As noted, Powell brings an ADA claim for monetary damages and perhaps injunctive relief.
Title III of the ADA states that “[n]o individual shall be 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 of public accommodation.” 42 U.S.C. § 12182. CCI acknowledges
that it falls within the purview of Title III of the ADA. Def.’s Mem. 7. Nevertheless, “it is well
established that Title III does not create a private cause of action for money damages.” Bray v.
Marriott Int’l, 158 F. Supp. 3d 441, 444 (D. Md. 2016) (quoting Estate of Saylor v. Regal Cinemas,

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Inc., 54 F. Supp. 3d 409, 429–30 (D. Md. 2014) (citing Goodwin v. C.N.J., Inc., 436 F.3d 44, 50
(1st Cir. 2006) (collecting cases))). Accordingly, Powell fails to state a claim against CCI for
money damages under the ADA. See id.; Saylor, 54 F. Supp. 3d at 444.
Insofar as Powell seeks some form of injunctive relief, CCI contends that she lacks standing
because the Court cannot redress her injuries. This Court may “adjudicate only actual cases and
controversies.” Zaycer v. Sturm Foods, Inc., 896 F. Supp. 2d 399, 407 (D. Md. 2012) (citing U.S.
Const. art. III, § 2; O’Shea v. Littleton, 414 U.S. 488, 493 (1974); Bishop v. Bartlett, 575 F.3d 419,
423 (4th Cir. 2009)). Standing, which addresses who may sue, is one facet of this “constraint of
Article III.” See South Carolina v. United States, --- F.3d ----, No. 18-1684, 2019 WL 124267, at
*7 (4th Cir. Jan. 8, 2019) (quoting Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262,
269 (4th Cir. 2013)). A plaintiff has standing if
(1) [the plaintiff] has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Zaycer, 896 F. Supp. 2d at 408 (quoting Bishop, 575 F.3d at 423); see also Lujan, 504 U.S. at 560–
61 (same).
A plaintiff’s allegations satisfy the redressability prong if it is “likely, and not merely
speculative, that a favorable decision will remedy the injury.” Friends of the Earth, Inc. v. Gaston
Cooper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000). Powell claims that CCI violated the
ADA by failing to provide an ASL interpreter for her on January 18, 2018. Compl. 7–9. CCI
argues that, given that Powell said she “won’t call them back,” id. at 8, there is no remedy the
Court can offer. As CCI correctly asserts, Def.’s Mem. 8:

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[W]hen a plaintiff requests injunctive relief, he “must allege and prove that there is
a ‘real and immediate threat’ that he will be wronged again.” Daniels v. Arcade,
477 Fed.Appx. 125, 129 (4th Cir. 2012) (citing Bryant v. Cheney, 924 F.2d 525,
529 (4th Cir. 1991)). This requirement means a plaintiff must “state a plausible
allegation that there is a likelihood that he will suffer future harm,” Daniels, 477
Fed.Appx. at 130, and that likelihood must be greater than a “mere possibility.”
Nat'l All. for Accessibility, Inc. v. CMG Bethesda Owner LLC, Civil No. JFM-121864, 2012 WL 6108244, at *4 (D. Md. Dec. 7, 2012). Prior injury constitutes
probative “evidence bearing on whether there is a real and immediate threat of
repeated injury.” Lyons, 461 U.S. at 102. But prior injury itself is insufficient; the
complaint must 1) “describe [plaintiff’s] concrete, specific plans to return to the
locus of the injury” and 2) “indicate that the plaintiff is likely to suffer the same
injuries upon return.” Lujan, 504 U.S. at 564; see also Millbank Hotel Partners,
2013 WL 653955, at *4.
Nanni v. Aberdeen Marketplace, Inc., No. WMN-15-2570, 2016 WL 2347932, at *2 (D. Md. May
4, 2016) (footnote omitted), vacated on other grounds, 878 F.3d 447 (4th Cir. 2017);5 see also
Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 454 (4th Cir. 2017) (“As further mandated by
Lujan, because Nanni is seeking prospective declaratory and injunctive relief rather than damages,
the allegations in the Complaint of past injuries ‘do[ ] not in [themselves] show a present case or
controversy ... if unaccompanied by any continuing, present adverse effects.’” (quoting Lujan, 504
U.S. at 564)), cert. denied, 138 S. Ct. 2657 (2018).
Powell asserts that she will not call CCI to schedule a new appointment with an ASL
interpreter. Compl. 8. Notably, in a June 1, 2018 letter order, ECF No. 17, I gave Plaintiff the
opportunity to amend her Complaint, but she stated in correspondence dated June 29, 2018 that
she would not be amending her Complaint. ECF No. 19. And, in the various pieces of
correspondence she has filed, she has not asserted that she will try to communicate with CCI again.
See Pl.’s Corresp., ECF Nos. 16, 18–21, 24, 25, 28, 29. On the contrary, she actually complained
that CCI has harassed her by calling too much and stated that she does not want CCI to contact her
anymore. Pl.’s Aug. 28, 2018 Ltr., ECF No. 29. Thus, based on her well-pleaded allegations, she

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CCI quotes this passage from Nanni, albeit without attribution.
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will not call CCI in the future. Consequently, she has not shown a basis for standing to bring a
claim for injunctive relief. See Nanni, 878 F.3d at 454; Nanni, 2016 WL 2347932, at *2.
Further, while she disputes CCI’s presentation of the facts concerning her January 18, 2018
visit, she does not dispute CCI’s assertion that there is no injunctive relief the Court can offer.
When a defendant’s motion to dismiss a complaint states specific deficiencies that warrant
dismissal, and presents supporting legal arguments, it is the plaintiff’s obligation to respond
substantively to address them. Powell’s failure to respond to CCI’s arguments constitutes
abandonment of any claim for injunctive relief. See Whittaker v. David’s Beautiful People, Inc.,
No. DKC-14-2483, 2016 WL 429963, at *3 n.3 (D. Md. Feb. 4, 2016); Sewell v. Strayer Univ.,
956 F. Supp. 2d 658, 669 n.9 (D. Md. 2013); Ferdinand–Davenport v. Children’s Guild, 742 F.
Supp. 2d 772, 777 & 783 (D. Md. 2010).
Moreover, any abandoned claims are subject to dismissal with prejudice. Sewell v. Strayer
Univ., No. DKC-12-2927, 2013 WL 6858867, at *4 (D. Md. Dec. 27, 2013) (stating that
“retaliation claim was dismissed with prejudice . . . because she abandoned [the] claim by failing
to address it in the reply brief”); Farrish v. Navy Fed. Credit Union, No. DKC-16-1429, 2017 WL
4418416, at *3 (D. Md. Oct. 5, 2017). Additionally, when a plaintiff has had the opportunity to
amend in response to a defendant’s identification of pleading deficiencies but still fails to state a
claim, dismissal with prejudice is appropriate because another opportunity to amend would be
futile. See Weigel v. Maryland, 950 F. Supp. 2d 811, 825–26 (D. Md. 2013). Accordingly,
dismissal of Powell’s ADA claims with prejudice is appropriate. See id.
ORDER
Accordingly, it is, this 11th day of February, 2019, hereby ORDERED that

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1. Defendant’s Motion to Dismiss, ECF No. 22, IS GRANTED;
2. Plaintiff’s Complaint IS DISMISSED WITH PREJUDICE; and
3. The Clerk SHALL SEND a copy of this Memorandum Opinion and Order to Plaintiff
and CLOSE this case.

/S/
Paul W. Grimm
United States District Judge

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