Shaika v. Gnaden Huetten Memorial Hospital et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Malachy E Mannion on 7/7/15. (ao)

UNITED STATE DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
COLLEEN SHAIKA,

:

Plaintiff

:

CIVIL ACTION NO. 3:15-0294

:

(JUDGE MANNION)

v.
GNADEN HUETTEN MEMORIAL
HOSPITAL, et al.,

:
:

Defendants
:
MEMORANDUM
Pending before the court is the defendants’ motion to dismiss the
plaintiff’s complaint. (Doc. 11). The plaintiff, who was deaf, sued the
defendant hospital and health systems under the ADA, the Rehabilitation Act,
as well as the PHRA and asserted a negligent infliction of emotional distress
claim. The plaintiff alleges that defendants failed to accommodate her hearing
disability by providing an acceptable way to communicate information to her
regarding the treatment and condition of her daughter who was transported
to the hospital on an emergency basis. The hospital’s Video Remote
Interpreter (“VRI”) did not work and a written note was used to communicate
to the plaintiff and to inform her that her daughter passed away. Based upon
the court’s review of the motion and the materials related thereto, the motion
to dismiss will be GRANTED, IN PART, AND DENIED, IN PART.

I.

FACTUAL BACKGROUND1
The plaintiff, Colleen Shaika, received a telephone call in the early

morning of February 17, 2013, advising that her daughter Jennifer Shaika was
being rushed to defendant Gnaden Huetten Memorial Hospital ("GHMH"),
Lehighton, PA. The plaintiff, who has been deaf since birth, arrived at GHMH
and requested an American Sign Language (“ASL”) interpreter so she could
be informed of her daughter’s condition and treatment. GHMH did not have
an interpreter when plaintiff arrived nor during any of her time at the hospital.
GHMH had a VRl device, however, this device was not functioning and could
not be utilized when plaintiff was at GHMH.
Plaintiff’s daughter was pronounced dead on arrival at GHMH. The
cause of death on Jennifer's death certificate was heroin toxicity complicated
by her asthma. (Doc. 15-1). Since GHMH could not communicate with plaintiff
using ASL, a nursing staff member communicated with her using a written
note. The note informed plaintiff that her daughter died and simply stated,
"your daughter is dead." (Doc. 15-2). No information as to how plaintiff’s
daughter died was given. The note also asked plaintiff if she needed medicine
to help her relax and then indicated that plaintiff would be given a shot.

1

The facts alleged in plaintiff’s complaint must be accepted as true in
considering the defendant’s motion to dismiss. See Dieffenbach v. Dept. of
Revenue, 490 Fed.Appx. 433, 435 (3d Cir. 2012); Evancho v. Evans, 423
F.3d 347, 350 (3d Cir. 2005).
2

Subsequently, the plaintiff attempted to find out how and why her
daughter died and through counsel she sought a meeting at GHMH. When
plaintiff arrived at the meeting on April 4, 2013, with her counsel, GHMH did
not have an interpreter and its VRI was again not operating. When GHMH
staff realized that plaintiff was accompanied by counsel, the meeting was
cancelled and plaintiff did not receive any information relating to her
daughter's death that day.
On April 11, 2013, counsel for plaintiff requested her daughter's medical
records and had to open an estate to obtain them. The medical records were
received by plaintiff on May 7, 2013.
The plaintiff then commenced this action against GHMH, Blue Mountain
Health System, Inc. (“BMHS”), Lehigh Valley Physicians Group (“LVPG”) and
Lehigh Valley Health Network, Inc. (“LVHN”). The plaintiff contends that the
failure of defendants to effectively and adequately communicate with her
about her daughter’s medical condition violated federal as well as state law.
The plaintiff alleges that places of public accommodation are required to
ensure that persons with a disability are not denied services, and they must
furnish appropriate auxiliary aids to ensure effective communication. The
plaintiff avers that this accommodation extends to companions who
themselves are individuals with disabilities. The law allows VRI as an
acceptable method of providing auxiliary aids. Federal regulations indicate
that written notes may not ensure effective communication, particularly in
3

medical situations, and thus “interpreters should be used when the matter
involves more complexity, such as in communication of medical history or
diagnoses, in conversations about medical procedures and treatment
decisions.” 28 C.F.R. pt. 36 app A.

II.

PROCEDURAL HISTORY
By way of relevant background, on February 10, 2015, the plaintiff

initiated the instant federal question action pursuant to Title III of the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§12181, et seq.,
raising a claim of unlawful discrimination based on her hearing disability.
(Doc. 1). The plaintiff has also alleged a violation of the Pennsylvania Human
Relations Act (“PHRA”)2 , 43 P.S. §§951-963, and asserted a federal claim
under Section 504 of the Rehabilitation Act of 1973 (the “RA”), 29 U.S.C.
§794. Further, the plaintiff raised a state law claim of negligent infliction of
emotional distress.
As relief, the plaintiff seeks the court to declare defendants violated Title
III of the ADA, Section 504, and the PHRA. The plaintiff also seeks the court
to issue an injunction ordering defendants to provide qualified sign language

2

The “analysis of an ADA claim applies equally to a PHRA claim.”
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (citing Kelly
v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)). Therefore, the court will
consider both claims together.
4

interpreters or other appropriate auxiliary aids or services in order to ensure
effective communication with deaf and hard-of-hearing individuals. Further,
the plaintiff requests damages as well as her attorney's fees and costs.
This court’s jurisdiction over the plaintiff’s federal claims is based on 28
U.S.C. §1331 and, the court’s pendent jurisdiction over her state claims is
based on 28 U.S.C. §1337.
The defendants filed a motion to dismiss the entire complaint on April
13, 2015. (Doc. 11). On April 27, 2015, the defendants filed their brief in
support of their motion with attached exhibits. (Doc. 15). On May 14, 2015,
the parties filed a stipulation of voluntary of dismissal with respect to all claims
asserted against defendants LVPG and LVHN, pursuant to Fed.R.Civ.P.
41(a)(1), since neither defendant held any ownership interest in GHMH. (Doc.
20). On May 18, 2015, the court approved of the stipulation and, defendants
LVPG and LVHN were terminated from this case. (Doc. 23). On May 21,
2015, the plaintiff filed her brief in opposition to the defendants’ motion to
dismiss with exhibits, including the plaintiff’s affidavit. (Doc. 26). The
remaining defendants, GHMH and BMHS, filed a reply brief on June 4, 2015.
(Doc. 27).
The motion to dismiss of defendants is ripe for disposition.

5

III.

STANDARDS OF REVIEW
A. Rule 12(b)(1)
The defendants’ motion, in part, facially challenges this court’s subject

matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure
claiming that the plaintiff lacks standing to bring her claims for injunctive and
declaratory relief since she has no present or continuing injury, thereby
depriving this court of jurisdiction. “Dismissal under a facial challenge is
proper ‘only when the claim clearly appears to be immaterial and made solely
for the purpose of obtaining jurisdiction or ... is wholly insubstantial and
frivolous.’” Byrne v. Cleveland Clinic, 684 F.Supp.2d 641, 648-49 (E.D.Pa.
2010) (citing Kehr Packages, Inc., 926 F.2d at 1408–09) (quoting Bell v.
Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). “In this
circumstance, the court must accept all well-pleaded allegations in plaintiff's
complaint as true, and must view them in the light most favorable to the
non-movant.” Id. at 649 (citing In re Kaiser Group Int'l Inc., 399 F.3d 558, 561
(3d Cir. 2005)). Additionally, “a party asserting that the court has jurisdiction
always bears the burden of showing that the case is properly before the
court.” Id. (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d
Cir. 1993); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189,
56 S.Ct. 780, 80 L.Ed. 1135 (1936)).
“A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of
the court to address the merits of the plaintiff’s complaint.” Vieth v.
6

Pennsylvania, 188 F.Supp.2d 532, 537 (M.D.Pa. 2002) (citation omitted). “A
challenge to the standing of a party raises the issue of justiciability and
implicates the subject matter jurisdiction of a federal court.” Miller v. Hygrade
Food Products Corp., 89 F.Supp.2d 643, 646 (E.D.Pa. 2000). As such, the
appropriate device to raise the issue of standing is a motion to dismiss under
Rule 12(b)(1) for lack of subject matter jurisdiction. Id. “Unlike dismissal under
[Fed. R.Civ.P.] 12(b)(6), dismissal under Rule 12 (b)(1) for lack of subject
matter jurisdiction is not a judgment on the merits of plaintiff’s case, but only
a determination of the court lacks the authority to hear the case.” Swope v.
Central York School Dist., 796 F.Supp. 2d 592, 599 (M.D. Pa. 2011) (citing
Mortensen v. First Federal Sav. and Loan Ass'n, 549 F. 2d 884, 891 (3d Cir.
1977)).

B. Rule 12(b)(6)
The defendants’ motion to dismiss is also brought pursuant to the
provisions of Fed. R. Civ. P. 12(b)(6). This rule provides for the dismissal of
a complaint, in whole or in part, if the plaintiff fails to state a claim upon which
relief can be granted. The moving party bears the burden of showing that no
claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005), and dismissal is appropriate only if, accepting all of the facts alleged
in the complaint as true, the plaintiff has failed to plead “enough facts to state
a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly,
7

550 U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts”
language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts
alleged must be sufficient to “raise a right to relief above the speculative
level.” Twombly, 550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for
enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence of [necessary elements]” of the plaintiff’s cause of action. Id.
Furthermore, in order to satisfy federal pleading requirements, the plaintiff
must “provide the grounds of his entitlement to relief,” which “requires more
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly,
550 U.S. 544, 127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
8

court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver,
213 F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is
justified only on the grounds of bad faith, undue delay, prejudice, or futility.”
Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

IV.

DISCUSSION
Initially, the plaintiff withdrew her state law claim of negligent infliction

of emotional distress, (Doc. 26, at 21), so that need not be discussed further.
Also, defendants LVHN and LVPG were previously dismissed. As such, the
plaintiff’s ADA, PHRA and Rehabilitation Act claims remain only as against
GHMH and BMHS.
Additionally, insofar as the plaintiff requests monetary damages with
respect to her claim under Title III of the ADA, such relief is improper and will
be dismissed with prejudice. “Under Title III of the ADA, private plaintiffs may
not obtain monetary damages and therefore only prospective injunctive relief
is available.” Anderson v. Macy's, Inc., 943 F.Supp.2d 531, 538 (W.D.Pa.
9

2013) (citation omitted). The plaintiff is permitted to request injunctive relief
with respect to her Title III ADA claim. Id.

A. Standing for Title III ADA Claim
Under Title III of the ADA, discrimination is prohibited “against the
disabled in the full and equal enjoyment of public accommodations.” Spector
v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128, 125 S.Ct. 2169, 162
L.Ed.2d 97 (2005). As such, entities that provide public accommodations, in
part, must provide auxiliary aids and services to disabled individuals. Id.
(citations omitted).
In the pending motion to dismiss, the defendants initially argue that all
of the plaintiff’s federal claims should be dismissed since she lacks standing
to bring a claim for injunctive relief under Title III of the ADA. The defendants
state that the court lacks subject matter jurisdiction requiring dismissal of the
federal claims under Rule 12(b)(1) since plaintiff did not allege she faced real
and immediate threat of future injury. The defendants state that since the
plaintiff did not have a history of using defendants’ services in the past two
years, “it stands to reason that she is not likely to require it in the ‘imminent’
future.” (Doc. 15, at 13).
“Because the remedy for a private ADA Title III violation is injunctive
relief, courts look beyond the alleged past violation and consider the
possibility of future violations.” Heinzl v. Starbucks Corp., 2015 WL 1021125,
10

*5 (W.D.Pa. March 09, 2015). “Plaintiffs seeking prospective injunctive relief
must demonstrate a ‘real and immediate threat’ of injury in order to satisfy the
‘injury in fact’ requirement of standing. Id. (citing Anderson, 943 F.Supp.2d at
538). Standing is a threshold jurisdictional requirement, derived from the ‘case
or controversy’ language of Article III of the Constitution.” Pub. Interest
Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117
(3d Cir. 1997) (citation omitted). “Plaintiffs must have standing at all stages
of the litigation, [], and they bear the burden of proving it ‘with the manner and
degree of evidence required at the successive stages of the litigation.’” Id.
(citations omitted). “It is well established that plaintiffs must show injury or at
least an imminent threat of injury in order to maintain their standing in a
federal court.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). Also, since the plaintiff is
invoking this federal court’s jurisdiction, she bear the burden of establishing
her standing. See Common Cause of PA v. Pennsylvania, 558 F.3d 249, 257
(3d Cir. 2009) (citation omitted).
The court in Anderson, 943 F.Supp.2d at 538, stated:
The Supreme Court has held that in order “to satisfy Article Ill's
standing requirements, a plaintiff must show (1) it 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.”

11

(quoting Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528
U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)); see also Doe v.
Nat'l Bd. of Med. Examiners, 210 Fed.Appx.157, 159 (3d Cir. 2006). A plaintiff
must have standing “at the time the action commences.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. at 191, 120 S.Ct. at 709.
Additionally, the plaintiff must satisfy the prerequisites to raise a claim
seeking an injunction. Doe, 210 Fed.Appx. at 159. “To establish standing in
an action for injunctive relief, a plaintiff must show that he or she is likely to
suffer future injury from the defendant's illegal conduct.” Id. at 159-160
(citation omitted). “Past illegal conduct is insufficient to warrant injunctive relief
unless it is accompanied by ‘continuing, present adverse effects.’” Id. at 160
(citations omitted); see also O'Shea v. Littleton, 414 U.S. 488, 495–96, 94
S.Ct. 669, 38 L.Ed.2d 674 (1974). “In order to state a basis for a claim for
injunctive relief, the complaint must allege that injury to plaintiff[] is ‘certainly
impending.’” Phillips v. St. Mary’s Medical Center, 2013 WL 1124372, *2
(E.D.Pa. March 19, 2013) (citing Lujan, 504 U.S. at 564 n. 2). “A stated intent
to return ‘someday’ to the source of the alleged injury is not sufficient.” Id.
(citing Lujan, 504 U.S. at 564 n. 2). Thus, the injury must be personal, actual
and imminent, and cannot be speculative. Doe, 199 F.3d at 153.
It must now be determined whether the plaintiff can show a likelihood
of a future injury. If she cannot, then she lacks standing to seek injunctive
relief. The three requirements for standing are “necessary elements of a
12

plaintiff’s case” and mere allegations are insufficient since they are not
pleading requirements. Id at 152. “The proper analysis of standing focuses on
whether the plaintiff suffered an actual injury, not on whether a statue was
violated.” Id. at 153. The plaintiff has submitted her affidavit to try and show
more than a mere possibility that she will likely be discriminated against by
GHMH with respect to her hearing disability and that this discrimination is
actual and imminent. In her affidavit, the plaintiff alleges that she will likely use
GHMH, which is the closest hospital to her home and which she utilizes when
she needs hospital services, in the future for medical and mental health
treatment as well as for tests as she has in the past. (Doc. 26-1). The plaintiff
has identified an injury that is personal to her since she avers that despite her
requests, GHMH did not have a sign language interpreter or assistive device
available for her use during her past visits to the hospital except for one
occasion.
Specifically, the plaintiff avers in her affidavit that she was an in-patient
at GHMH for a week commencing on March 11, 2010, for services relating to
her mental health and no sign language interpreter or assistive device was
available for her use during that visit. On October 16, 2012, the plaintiff had
finger surgery at GHMH and there was no sign language interpreter nor any
VRI service or other assistive device. The plaintiff returned to GHMH on
October 22, 2012, for a mammogram and she was informed that the
mammogram machine at GHMH was broken. She was then sent to Palmerton
13

Hospital where she received a mammogram. During her visit of October 22,
2012, there was neither an interpreter nor a VRI available to her at GHMH.
Further, as alleged in her complaint, plaintiff avers that there was neither an
interpreter nor a VRI available to her at GHMH when she went there on
February 17, 2013, the day her daughter died. The plaintiff also avers that
when she arrived for the April 4, 2013 meeting at GHMH for an explanation
about how her daughter died, the meeting could not be started on time
because there was neither an interpreter nor VRI service available. The
plaintiff alleges that eventually the representatives of GHMH canceled the
meeting.
The plaintiff alleges that on April 28, 2013, she went to GHMG due to
an irregular heartbeat and stayed over night. She states that this was the only
time a VRI was available but even then she was required to wait periodically
because the service was on and off. On April 15, 2014, her last visit to
GHMH, plaintiff had a CT scan and x-ray for a problem involving kidney
stones, and she alleges that neither an interpreter nor a VRl were available.
Recognizing that past exposure to illegal conduct is not sufficient for
standing, the plaintiff also avers that her injury is actual and imminent since
she “suffer[s] from physical and mental conditions that require ongoing
treatment and have in the past and may likely in the future require in-patient
treatment, especially my mental condition.” (Id., at 4, ¶ 22).
Moreover, the plaintiff has submitted the April 2015 declaration of Terry
14

Purcell, the Vice President of Ambulatory and Support Services for defendant
BMHS, (Doc. 26-2, at 4, ¶’s8-9), and she avers:
In the late evening of February 17, 2013, when [GHMH]
attempted to connect to the videoconferencing system to provide
ASL interpreter services for the Plaintiff in the above-caption
matter, the system malfunctioned. The malfunction was due to
a connectivity issue over which [GHMH] had no control.
[GHMH] does not know where the connectivity issue originated.
On April 1, 2015, BMHS contracted with a new service
provider to provide remote video ASL interpreter services utilizing
lap-top computers for those patients and visitors who need such
accommodation. BMHS no longer uses the MTC for ASL interpreter
services.
The plaintiff also concedes in her brief in opposition, (Doc. 26, at 12-13),
that on April 1, 2015, GHMH replaced its previous “malfunctioning system”
with new ASL interpreter services.
“[T]he plaintiff must put forth a definitive, uncontested intent to return
before filing the complaint to establish standing.” Anderson, 943 F.Supp.2d
at 540 (citation omitted). “A plaintiff's intention to return to defendant’s place
of public accommodation ‘some day’ ... without any description of concrete
plans, or indeed even any specification of when the some day will be-do not
support a finding of the requisite actual or imminent injury.” Id. (citing Lujan,
504 U.S. at 564). The plaintiff fails to allege in her affidavit that she has a
definitive appointment or plan to return to GHMH for any treatment or test.
Thus, the plaintiff fails to establish that she has a plan to return to GHMH. See
15

Anderson, 943 F.Supp.2d at 540-41.
Additionally, “[t]he imminency requirement is applicable in Title III [ADA]
cases.” Phillips v. St. Mary’s Medical Center, 2013 WL 1124372, *3 (citing
Doe, 199 F.3d at 153). As the defendants point out, to show that she has
standing the plaintiff “needs to show that she will be injured by not having
effective communication in the future.” (Doc. 27, at 3). Thus, even if the
plaintiff did sufficiently show that she may likely in the future require treatment
at GHMH for her conditions, and the court has found she did not, she has
failed to show that she will likely be discriminated against by GHMH in the
future with respect to her hearing disability since GHMH has apparently
resolved the prior problem with its ASL interpreter services. In fact, the
plaintiff does not contend that she has experienced any problems with
GHMH’s new service provider and its new video ASL interpreter services.
GHMH has remedied the ADA violations alleged by the plaintiff regarding her
past visits. As such, there is no likelihood of the alleged past problems the
plaintiff encountered at GHMH being repeated since the old the system has
been replaced. Therefore, it is not likely that the plaintiff’s injury will be
redressed by a favorable decision of the court. The prior conduct of GHMH
which plaintiff alleges in her affidavit amounted to violations of the ADA, is not
sufficient for purposes of standing. See Lujan, 504 U.S. at 564 (citing Lyons,
16

461 U.S. at 102); see also Anderson, 943 F.Supp.2d at 538; Brown v. Fauver,
819 F.2d 395, 400 (3d Cir. 1987).
The corrective measure taken by the defendants in the instant case
shows that they are responsive to their obligations under the ADA and that
there is not a substantial likelihood that the defendants will violate the
plaintiff's rights under the ADA again.
The plaintiff has failed to meet her burden of establishing her standing.
Thus, the defendants’ motion to dismiss will be granted with respect to the
plaintiff’s Title III ADA claim. Since there is no case or controversy with
respect to the plaintiff’s ADA claim and the plaintiff has failed to satisfy the
injury-in-fact requirement as well as the requirement that it is likely that her
injury will be redressed by a favorable decision, it would be futile to allow her
to amend this claim. Also, the plaintiff has already submitted her affidavit to
try and cure the deficiencies in her complaint as to standing and it has failed
to remedy them. As such, the ADA claim (First Claim) will be dismissed with
prejudice.
The defendants contend that since the plaintiff lacks standing to bring
a claim for Title III injunctive relief and there is no case or controversy for
Article III purposes, the court lacks subject-matter jurisdiction, and both of the
plaintiff’s federal claims (ADA and Rehabilitation Act claims) should be
17

dismissed pursuant to Rule 12(b)(1). (Doc. 15, at 23 and Doc. 27, at 4-5).
Nonetheless, just because the plaintiff’s Title III ADA claim for injunctive relief
will be dismissed for lack of subject matter jurisdiction does not mean the
court also lacks jurisdiction over the plaintiff’s Rehabilitation Act claim. See
Phillips v. St. Mary’s Medical Center, 2013 WL 1124372 (court dismissed
plaintiffs’ Title III claim for injunctive relief for lack of standing but permitted
their claim under the Rehabilitation Act to proceed). Thus, “a plaintiff must
demonstrate standing separately for each form of relief sought.” Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. at 185,
120 S.Ct. at 706; see also City of Los Angeles v. Lyons, 461 U.S. 95, 109,
103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (despite the fact that plaintiff had
standing to seek damages, he lacked standing to seek injunctive relief).
Stated simply, “standing is not dispensed in gross.” Lewis v. Casey, 518 U.S.
343, 358 n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
However, insofar as the plaintiff seeks injunctive relief and declaratory
relief regarding her RA claim, these requests for relief will also be dismissed
with prejudice for the same reasons that this relief will be dismissed regarding
her ADA claim, i.e., for lack of standing. Standing will not exist for injunctive
relief and declaratory relief if “adjudication ... rests upon ‘contingent future
events that may not occur as anticipated or indeed may not occur at all.’”
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Pryor v. National Collegiate Athletic Ass'n., 288 F.3d 548, 561 (3d Cir. 2002)
(citations omitted).
B. Claim for Damages under Section 504 of the Rehabilitation Act
The question now arises as to whether the plaintiff has stated a claim
for money damages with respect to her RA claim.
Section 504 of the RA, 29 U.S.C. §794(a), states, in relevant part:
No otherwise qualified individual with a disability in the United
States, ... 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....
Thus, the RA prohibits discrimination on the basis of disability in
federally funded programs. Blunt v. Lower Merion School Dist., 767 F.3d 247,
274-75 (3d Cir. 2014) “[T]he substantive standards for determining liability
under the Rehabilitation Act and the ADA are the same.” Blunt v. Lower
Merion School Dist., 767 F.3d at 275 (quoting Ridley School Dist. v. M.R., 680
F.3d 260, 282-83 (3d Cir. 2012)).
The plaintiff can recover money damages under the RA. The Third
Circuit has held that the available remedies for a violation of §504 of the
Rehabilitation Act “include compensatory damages, injunctive relief, and other
forms of relief traditionally available under suits for breach of contract.” A.W.
v. Jersey City Pub. Sch., 486 F.3d 791, 804 (3d Cir. 2007); see also Majocha
v. Turner, 166 F.Supp.2d 316 (W.D.Pa. 2001). In her second count of the
19

complaint, the §504 RA claim, the plaintiff is deemed as requesting injunctive
relief as well as an award of compensatory damages. (Doc. 1 at 12, 14).
In her RA claim, the plaintiff alleges that defendants accept federal
financial assistance in the form of Medicare and Medicaid payments. (Doc. 1
at 11). She alleges that defendants qualify as a program or activity under
§504 since they are principally in the business of providing health care. (Id.)
(citing 29 U.S.C. §794(b)(3)(A)). She also alleges that she is a qualified
individual with a disability and was subjected to discrimination solely on the
basis of her disability, i.e., by “the failure to provide auxiliary aids and services
in order to ensure effective communication.” (Id. at 11-12). Indeed, there is no
dispute that the plaintiff has a disability and that defendants are places of
public accommodation that receive federal funds. Nor is it disputed that a
place of public accommodation is required under the regulations to take
necessary steps to provide auxiliary aids and services to insure effective
communication for an individual with a disability. See 28 C.F.R. 36.303.
Additionally, to prove a violation under §504 “[t]he plaintiff must also
demonstrate that the defendant knew or should have reasonably been
expected to know of her disability. However, to establish liability, a plaintiff
need not prove that defendant[’s] discrimination was intentional.” Chambers
v. Sch. Dist. of Philadelphia Bd. of Educ., 827 F. Supp. 2d 409, 417 (E.D. Pa.
20

2011) reconsideration denied, 2012 WL 3279243 (E.D. Pa. Aug. 13, 2012)
(internal citations omitted).
The parties do not contest these elements of a basic §504 claim.
Rather, the defendants assert that a plaintiff must demonstrate a showing of
intentional discrimination or deliberate indifference as a prerequisite for an
award of compensatory damages. The court in Chambers “agree[d] with the
overwhelming majority of circuit courts and the district courts within the Third
Circuit that require a plaintiff to prove intentional discrimination in order to be
entitled to the remedy of compensatory damages under the ADA and §504.”
Id. at 425. The Third Circuit Court in D.E. v. Central Dauphin School Dist., 765
F.3d 260, 269 (3d Cir. 2014), held that where a plaintiff seeks compensatory
damages as a remedy for violations of the RA and the ADA, “it is not enough
to demonstrate only that the plaintiff has made out the prima facie case [of
disability discrimination]” and that “[h]e or she must also demonstrate that the
discrimination was intentional.” (citation omitted). Further, “[a] showing of
deliberate indifference satisfies that standard.” Id. (citation omitted). See also
S.H. ex rel. Durrell v. Lower Merion School Dist., 729 F.3d 248, 263 (3d Cir.
2013) (Third Circuit held that “a showing of deliberate indifference may satisfy
a claim for compensatory damages under §504 of the RA [].”).
The plaintiff alleges in her complaint that defendants and their agents
acted intentionally and with a reckless disregard for her civil rights. (Doc. 1 at
12). The plaintiff alleges that the defendants knew of her hearing disability
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based on her prior visits to the hospital and that time after time when she was
at the hospital the VRI system did not operate properly and no interpreters
were available. In her brief, the plaintiff contends that defendants were
deliberately indifferent since they failed to inform her of the circumstances
surrounding her daughter’s death due to the lack of a functioning VRI system
and the lack of an interpreter on February 17, 2013. (Doc. 26, at 16-17). The
defendants maintain that they provided effective communication to the plaintiff
on the night in question since the plaintiff’s daughter was dead on arrival at
the hospital and since a nurse gave the plaintiff a note informing her that “your
daughter is dead.” The defendants state that “with or without an interpreter,
the hospital had no information to give to plaintiff concerning the
circumstances surrounding her daughter’s death because she was DOA.”
(Doc. 27, at 11). Regardless, the plaintiff contends that discovery is needed
to explore whether the facts of her case are sufficient to determine whether
the defendants were deliberately indifferent.
The Third Circuit Court in D.E., 765 F.3d at 269, stated:
To satisfy the deliberate indifference standard, a plaintiff “must
present evidence that shows both: (1) knowledge that a federally
protected right is substantially likely to be violated ..., and (2)
failure to act despite that knowledge.” Id. at 265 (citing Duvall v.
Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)). “Deliberate
indifference does not require a showing of personal ill will or
animosity toward the disabled person.” Id. at 263 (quoting
Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011)
(internal quotation marks omitted)). It does, however, require a “
‘deliberate choice, rather than negligence or bureaucratic
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inaction.’” Id. (quoting Loeffler v. Staten Island Univ. Hosp., 582
F.3d 268, 276 (2d Cir. 2009)).
It is premature at this stage of the case to determine whether the
plaintiff can satisfy the deliberate indifference standard to recover damages
with respect to her RA claim. As such, the defendants’ motion to dismiss the
plaintiff’s RA claim for damages will be denied without prejudice to refiling, if
appropriate, at the summary judgment stage. See D.E., supra (a motion for
summary judgment was filed on the question of deliberate indifference with
respect to plaintiff’s claim for damages under the ADA and RA); see also
S.H., supra (court considered whether there was evidence in the summary
judgment record that created a genuine factual dispute as to whether the
defendant school district was deliberately indifferent toward the plaintiff
disabled student).

C. PHRA Claim
Since one of the plaintiff’s federal claims will proceed, the court can
exercise its supplemental jurisdiction under 28 U.S.C. §1367(c) with respect
to the plaintiff’s state claim under the PHRA. However, as noted, the analysis
of an ADA claim applies equally to a PHRA claim. See Kelly v. Drexel Univ.,
94 F.3d at 105 (the court should treat PHRA and ADA claims coextensively
since they define disability substantially the same). As such, the same
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reasoning that applies to the plaintiff’s Title III ADA claim also applies to her
disability claim under the PHRA. Thus, since the plaintiff’s ADA claim for
injunctive relief will be dismissed with prejudice for lack of standing, her PHRA
claim will also be dismissed with prejudice.

V.

CONCLUSION
In light of the foregoing, the defendants’ motion to dismiss, (Doc. 11),

will be GRANTED, IN PART, AND DENIED, IN PART. An appropriate
order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: July 7, 2015
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