McKague v. HSCGP, LLC et al
MEMORANDUM OPINION. Signed by Judge Thomas T. Cullen on 7/29/2022. (ham)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HSCGP, LLC and DANVILLE
REGIONAL MEDICAL CENTER, LLC )
d/b/a SOVAH HEALTH – DANVILLE, )
JUL 29 2022
Case No. 4:22cv00018
Hon. Thomas T. Cullen
United States District Judge
The Americans with Disabilities Act (“ADA”) guarantees that disabled citizens have
the right to participate fully in all aspects of our society, including the health-care system, and
broadly prohibits discrimination against those with disabilities. Because communication is vital
to making informed healthcare decisions, individuals with hearing impairments face high
hurdles when they (or their loved ones) seek emergency medical treatment. Plaintiff Deborah
McKague is one such individual, and she claims that, during multiple visits to Defendants
HSCGP, LLC, and Sovah Health – Danville’s facility (“the Hospital”) for medical care for
herself and her husband, she was denied—or provided with ineffective—accommodations for
her deafness, which prohibited her from participating fully in her and her husband’s medicalcare decisions. McKague now seeks a preliminary injunction to ensure that, if and when she
returns to the Hospital during the pendency of this litigation, her federal rights under the ADA
will be enforced. But for the reasons stated below, she has failed to meet the high burden
required for preliminary injunctive relief.
McKague is “profoundly deaf” and claims that, during visits to the Hospital for her
and her husband’s care, the Hospital did not provide (or provided ineffective) means for her
to communicate with the nurses and physicians, making it difficult or impossible for her to
participate fully in her and her husband’s care. (Am. Compl. ¶¶ 15, 18–24 [ECF No. 20].) For
example, McKague alleges that the Hospital did not provide interpretative services during
visits on March 11 and 20, 2018. (See id. ¶¶ 25–26.) She also alleges that, although the Hospital
provided her with Video Remote Interpreting (“VRI”) during her visit on July 8, 2019, that
technology “did not work, had poor video quality, frequently froze and disconnected, and was
not an effective means of communication.” (Id. ¶¶ 29–30.) All told, she alleges that the
Hospital failed to provide her with an effective means of communication—or any means of
communication at all—on at least 25 visits to the Hospital. She seeks a declaratory judgment,
permanent injunction, compensatory damages, nominal damages, attorneys’ fees and costs,
and “[a]ny and all other relief that this Court deems just and proper.” (Id. ¶ D (Prayer for
McKague also seeks a preliminary injunction requiring the Hospital “to immediately
provide [her] with either on-site certified American Sign Language (‘ASL’) interpreters or ASL
interpreters through Video Remote Interpreting (‘VRI’) services and technology when [she]
seeks healthcare treatment at [the Hospital] and when [she] is a companion to her husband
seeking healthcare treatment at [the Hospital].” (Mot. Prelim. Inj. at 1, May 26, 2022 [ECF No.
8].) The Hospital argues that McKague lacks standing to seek a preliminary injunction and
that, even if she does have standing, she has failed to establish the elements required for
issuance of a preliminary injunction. The parties fully briefed this issue, and the court heard
oral arguments on McKague’s motion on July 6, 2022, making the matter is ripe for
The Hospital has filed a motion to strike McKague’s request for emotional distress
damages from her complaint. (ECF Nos. 10 & 23.) The parties have fully briefed this motion,
and their positions are adequately set forth in their pleadings. Accordingly, the court will
dispense with further oral argument and rule on the basis of the parties’ written submissions.
STANDARD OF REVIEW
A. Preliminary Injunction
The purpose of a preliminary injunction is to preserve the status quo pending a final
trial on the merits. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 422 (4th Cir. 1999)
(citation omitted). The factors necessary for the grant of a preliminary injunction are wellsettled. In order to receive a preliminary injunction, a plaintiff must show that: (1) she is likely
to succeed on the merits of her underlying claim; (2) there is a likelihood of irreparable harm
in the absence of preliminary relief; (3) the balance of equities favors preliminary relief; and
(4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). This showing must be made by a preponderance of the evidence. See UBS Painwebber,
Inc. v. Aiken, 197 F. Supp. 2d 436, 440 (W.D.N.C. 2002).
In addition to the merits of her request, the Hospital also challenges, as a threshold
matter, McKague’s standing to seek a preliminary injunction. “On a motion for a preliminary
injunction, a plaintiff’s ‘burden of showing a likelihood of success on the merits necessarily
depends on a likelihood that plaintiff has standing.’” Action NC v. Strach, 216 F. Supp. 3d 597,
630 (M.D.N.C. 2016) (quoting Obama v. Klayman, 800 F.3d 559, 565 (D.C. Cir. 2015))). A
plaintiff must show three elements to establish Article III standing: (1) injury in fact, (2)
causation, and (3) redressability. Townes v. Jarvis, 577 F.3d 543, 546–47 (4th Cir. 2009) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “[T]he presence of these three elements
must continue throughout the entire case, otherwise the case becomes moot.” Action NC, 216
F. Supp. 3d at 630.
B. Motion to Strike
Under Federal Rule of Civil Procedure 12(f), on its own motion or on the timely
motion of a party, “[t]he court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” “[S]triking a portion of a pleading
is a drastic remedy.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001).
Accordingly, such motions are “generally viewed with disfavor.” Id. The moving party bears
the burden to show that the challenged material is prejudicial. Hardy v. Lewis Gale Med. Ctr.,
377 F. Supp. 3d 596, 605 (W.D. Va. 2019); see also 5C Wright & Miller § 1382 (3d. ed. 2021).
Any doubt about whether the challenged material should be stricken is resolved in favor of
the non-moving party. Sturdivant v. Arc of Haywood Cnty., Inc., No. 1:18 cv 123; 2018 WL
2138543, at *1 (W.D.N.C. May 9, 2018); see also 5C Wright & Miller § 1382. “[T]he decision of
whether to strike all or part of a pleading rests within the sound discretion of the [c]ourt.”
Barnes v. District of Columbia, 289 F.R.D. 1, 6 (D.D.C. 2012). “[A]bsent a strong reason for doing
so, courts will generally not tamper with pleadings.” Nwachukwu v. Karl, 216 F.R.D. 176, 178
(D.D.C. 2003) (cleaned up).
A. Preliminary Injunction
Because standing necessarily precedes any discussion of the merits of McKague’s
claims, the court will address the Hospital’s standing argument first.
Under Article III of the United States Constitution, the jurisdiction of federal courts is
limited to actual cases and controversies. See Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011)
(citing Allen v. Wright, 468 U.S. 737, 750 (1984)). The doctrine of “standing is an essential and
unchanging part of the case-or-controversy requirement of Article III.” Lujan, 504 U.S. at 560.
To satisfy the constitutional requirements for standing, a plaintiff must demonstrate that “1)
he or she suffered an ‘injury in fact’ that is concrete and particularized, and is actual or
imminent; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) the
injury likely will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Gaston Cooper
Recycling Corp., 629 F.3d 387, 396 (4th Cir. 2011). An “injury in fact” is a harm that is “actual
or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. “In the context of an
action seeking injunctive relief pursuant to the ADA, a plaintiff can only satisfy the injury-infact element of standing where the plaintiff alleges facts ‘giving rise to an inference that [s]he
will suffer future discrimination by the defendant.’” Nat’l All. for Accessibility, Inc. v. Tunnel Rd.
(E & A) Ltd. Liability Co., No. 1:10cv282, 2011 WL 1791293, at *3 (W.D.N.C. Apr. 8, 2011)
(quoting Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2011)).
The Hospital contends that the likelihood that McKague will return to its emergency
room is speculative, meaning that any alleged injury is not actual or imminent. To be sure,
“[i]ntent to return to the place of injury ‘some day’ is insufficient” to establish standing for
injunctive relief. Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83, 87 (E.D.N.Y. 2005). But
past is prologue, and McKague’s long history of receiving emergency medical care at the
Hospital informs the court’s analysis of the likelihood that McKague will return in the near
“Courts in the Fourth Circuit . . . require that a plaintiff evidence a specific intent to
return to a facility in order to establish standing for injunctive relief.” Basta v. Novant Health
Inc., No. 3:19-cv-00064, 2019 WL 3310098, at *4 (W.D.N.C. July 23, 2019) (collecting cases).
McKague alleges that her and her husband’s “chronic and debilitating health issues” make a
return trip to the Hospital a virtual certainty and, although she alleges they are victims of
discrimination at the Hospital, she nevertheless professes an intent to return to the facility
because it is the closest emergency care facility to their home. (See Aff. of Deborah McKague
¶¶ 1, 4, 9, May 25, 2022 [ECF No. 8-2]; Am. Compl. ¶ 104.)
McKague’s amended complaint details the couple’s past history of repeated visits to
the Hospital and depicts two individuals in frequent need of emergency medical treatment.1
Moreover, given the geographic proximity of the Hospital to McKague’s home and her
statement that she “intends to continue visiting the Hospital given (1) the lack of alternative
hospital emergency rooms in the area and (2) the fact that the Hospital has access to and
knowledge of her and her husband’s extensive medical records and issues” (Am. Compl. ¶ 104;
see also McKague Aff. ¶ 1 (adopting allegations in her complaint)), the court finds that
McKague has not attempted to describe the nature of her or her husband’s health issues, making it virtually
impossible for the court to undertake a fully informed analysis of her claim that they will need emergency care
in the future. Additionally, McKague does not allege an ongoing treatment relationship with any particular
physician or provider at the Hospital. The court would have preferred a more fulsome explanation of
McKague’s medical issues or treatment needs—even under seal, if necessary—to the scant allegations included
in her pleadings. Nevertheless, for the reasons discussed, McKague has established the requisite standing.
McKague has alleged facts indicating a sufficient intent to return to the Hospital and a
likelihood that she will need to do so, meaning that her alleged future harm is “actual or
imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. McKague therefore has
standing to bring a claim for injunctive relief.
But McKague does not satisfy the elements of her request for a preliminary injunction.
Specifically, she has not shown that she faces a likelihood of irreparable harm in the absence
of injunctive relief.
In the context of a preliminary injunction, “[i]rreparable injury must be likely, rather
than just possible.” Canada v. Dannin, No. 7:10cv00432, 2011 WL 2600578, at *2 (W.D. Va.
June 29, 2011) (citing Winter, 555 U.S. at 21). “In determining what is considered irreparable
harm, the key word is irreparable.” Doe v. Pittsylvania Cnty., Va., 842 F. Supp. 2d 927, 932 (W.D.
Va. 2012) (internal quotation omitted). “‘Mere injuries, however substantial, in terms of
money, time and energy necessarily expended in the absence of a stay, are not enough.’”
Sampson v. Murray, 415 U.S. 61, 90 (1974) (quoting Va. Petroleum Jobbers Ass’n v. Fed. Power
Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)); see also Hughes Network Solutions, Inc. v. InterDigital
Comm. Corp., 17 F.3d 691, 694 (4th Cir. 1994) (“Where the harm suffered by the moving party
may be compensated by an award of money damages at judgment, courts generally have
refused to find that harm irreparable.”).
McKague’s request for a preliminary injunction fails for two primary reasons. First, the
Hospital has presented uncontested affidavits that McKague declined functioning VRI
technology at each of her last two visits. (See Decl. of Dr. Ramon Gomez ¶¶ 5–7, June 21,
2022 [ECF No. 22-2]; Decl. of Meryl Barts ¶¶ 6–7, 10–12, June 20, 2022 [ECF No. 22-3].)
These affidavits indicate that the Hospital can and does provide functioning accommodations,
which undercuts McKague’s claim that she will be harmed, let alone irreparably so, upon her
return to the Hospital.
Second, McKague admits that she has an application (or “app”) on her phone that
gives her immediate, real-time access to a live interpreter—an app that she has used during
past visits to the Hospital when either the VRI was not working to her satisfaction or when
she feared the VRI would not work and chose, instead, to use her app. This app, which costs
$1.00 per minute (Am. Compl. ¶ 43), allows McKague to participate fully in her medical care,
as she “used this . . . app to communicate with doctors, nurses, and other of [the Hospital’s]
staff” during past visits. (Id.; see also Gomez Decl. ¶ 6 (detailing McKague’s successful use of
the app during treatment on June 14, 2022).) Upon learning that McKague felt obligated to
use this app and pay for it during a visit, the Hospital offered to reimburse her for any expenses
incurred as a result. (See ECF No. 22-4.) The Hospital stated that, although it offers VRI to its
patients at no cost and that McKague is not expected to have to provide her own interpretive
services, she is nevertheless “free to do so.” (Id.) In the event she chooses to do so and incurs
any costs, the Hospital will reimburse her. Therefore, if McKague returns to the Hospital and
needs or elects to use her personal device, instead of the VRI, the Hospital will reimburse her
for those expenses. 2
Based on the evidence before the court, it is clear that, if McKague returns to the
Hospital and appropriate interpretative accommodations are either not available or not
The court also notes that McKague’s out-of-pocket expenses to compensate for unavailable or malfunctioning
VRI are paradigmatic compensatory damages, should she prevail on her claim.
provided, she can use the app on her phone and be reimbursed for any expenses incurred for
its use. Accordingly, she has not shown a likelihood of irreparable harm in the absence of
injunctive relief. Cf. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22
F.3d 546, 551–52 (4th Cir. 1994) (noting that irreparable harm is suffered “when monetary
damages are difficult to ascertain or are inadequate”). Her request for a preliminary injunction
will be denied.
B. Motion to Strike
The Hospital asks this court to strike from McKague’s complaint her request for
emotional distress damages because those damages are not available under either of the causes
of actions she asserts. See Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1576 (2022)
(holding that emotion distress damages are not recoverable in private actions to enforce the
antidiscrimination provisions of the Affordable Care Act); Israel v. Cerjan, No. 2:00cv457, 2001
WL 34826230, at *3 (E.D. Va. June 12, 2001) (“The only remedy available under Title III of
the ADA is injunctive relief.”).
The Hospital’s motion will be denied. Rule 12(f) is “unavailable as a tool to strike the
claim for emotional distress damages here.” Bocock v. Specialized Youth Servs. of Va., Inc., No.
5:14cv00050, 2015 WL 1611387, at *3 (W.D. Va. Apr. 10, 2015). As Judge Elizabeth Dillon
Rule 12(f) permits the court to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” “Rule 12(f) motions are generally viewed
with disfavor ‘because striking a portion of a pleading is a drastic
remedy . . . .’” Clearly a request for relief is not an insufficient
defense, is not redundant, and is not scandalous, nor have
defendants argued that it is. Likewise, defendants have not argued
that the request for relief here is immaterial or impertinent. . . .
None of the terms of Rule 12(f), therefore, allow the striking of
the plaintiff’s demand for emotional distress damages.
Id. (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) )). Because
Rule 12(f) is an improper vehicle for the relief sought (and for other valid reasons, see id.), the
Hospital’s motion will be denied.
Although McKague has standing to seek injunctive relief, she has failed to show a
likelihood of irreparable harm in the absence of such relief. Accordingly, her motion for a
preliminary injunction will be denied.
Because a motion to strike under Rule 12(f) is not a proper vehicle to attack a request
for damages, the Hospital’s motion will also be denied.
The clerk is directed to forward a copy of this Memorandum Opinion and
accompanying Order to the parties.
ENTERED this 29th day of July, 2022.
/s/ Thomas T. Cullen_________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE
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