Lockwood v. Our Lady of the Lake Hospital, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JOSEPH LOCKWOOD CIVIL ACTION

VERSUS

OUR LADY OF THE LAKE 17-509-SDD-EWD

HOSPITAL, INC.

RULING

This matter is before the Court on the Motion for Summary Judgment1 filed by

Defendant, Our Lady of the Lake Hospital, Inc. (“OLOL”). Plaintiff, Joseph Lockwood

(“Plaintiff”) has filed an Opposition2 to this motion, to which OLOL filed a Reply.3 For the

following reasons, OLOL’s motion will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a deaf individual who communicates in American Sign Language

(“ASL”).4 On July 1, 2017, while working in the kitchen of a local eatery, Plaintiff lacerated

his thumb and went to the emergency room at OLOL to receive treatment.5 Upon his

arrival at OLOL, through his partner, Plaintiff requested a sign language interpreter;6

however, Plaintiff claims an interpreter was not provided, and he was advised by OLOL

1 Rec. Doc. No. 44.

2 Rec. Doc. No. 51.

3 Rec. Doc. No. 55.

4 Rec. Doc. No. 1, ¶ 9.

5 Id. at ¶¶ 11, 13.

6 Rec. Doc. No. 44-5, Lockwood Dep. 44:7-20.

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staff that the Video Remote Interpreting (“VRI”) machine was not working.7 Rather,

Plaintiff contends he was forced to try to lip read and communicate through written

English.8 Plaintiff’s mother, who later came to the hospital, was allegedly forced to

interpret medical consent forms because OLOL refused to provide auxiliary aids.9 Due

to OLOL‘s failure to provide a sign language interpreter, Plaintiff contends he was not

adequately advised of his diagnoses, prognoses, medications, or treatment.10 Further,

Plaintiff claims that, absent effective auxiliary communication aids, he was frustrated

confused, anxious, isolated, and afraid,11 and he was effectively precluded from engaging

in an equal opportunity to participate in his healthcare.

Plaintiff filed this lawsuit12 alleging that OLOL violated his rights under Section 504

of the Rehabilitation Act of 1973 (“RA”)13 and Section 1557 of the Patient Protection and

Affordable Care Act (“ACA”).14 Plaintiff seeks damages, injunctive and declaratory relief,

and attorneys’ fees and costs. OLOL now moves for summary judgment on all of

Plaintiff’s claims.

II. LAW AND ANALYSIS

A. Summary Judgment Standard

A court should grant a motion for summary judgment when the movant shows “that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

7 Id. at 44:22-45:3.

8 Id. at 45:4-11.

9 Rec. Doc. No. 1, ¶ 20.

10 Id. at ¶ 22.

11 Id. at ¶ 21.

12 Plaintiff asserted claims under the Americans With Disabilities Act (“ADA”) and the Louisiana Commission

on Human Rights, LA. REV. STAT. ANN. § 51:2231, but these claims have been previously dismissed.

13 29 U.S.C. § 794.

14 42 USC § 18116.

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as a matter of law.”15 The party moving for summary judgment is initially responsible for

identifying portions of pleadings and discovery that show the lack of a genuine issue of

material fact.16 A court must deny the motion for summary judgment if the movant fails

to meet this burden.17

If the movant makes this showing, however, the burden then shifts to the non-

moving party to “set forth specific facts showing that there is a genuine issue for trial.”18

This requires more than mere allegations or denials of the adverse party's pleadings.

Instead, the nonmovant must submit “significant probative evidence” in support of his

claim.19 “If the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.”20

A court may not make credibility determinations or weigh the evidence in ruling on

a motion for summary judgment.21 The court is also required to view all evidence in the

light most favorable to the non-moving party and draw all reasonable inferences in that

party's favor.22 Under this standard, a genuine issue of material fact exists if a reasonable

trier of fact could render a verdict for the nonmoving party.23

B. Compensatory Damages Unavailable

Following the Fifth Circuit’s decision in Jane Cummings v. Premier Rehab Keller,

P.L.L.C.,24 wherein the court held that emotional distress damages were not available

15 Fed. R. Civ. P. 56.

16 Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).

17 Id.

18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted).

19 State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990).

20 Anderson, 477 U.S. at 249 (citations omitted).

21 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

22 Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).

23 Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

24 948 F.3d 673 (5th Cir. 2020).

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under ADA and RA,25 this Court recently granted partial summary judgment on claims for

emotional distress damages in King v. Our Lady of the Lake Hospital, Inc.26 and

Labouliere v. Our Lady of the Lake Foundation.27 However, the Court denied summary

judgment, in part, finding that those plaintiffs could recover nominal damages if they

proved intentional discrimination on the part of the defendant. Thus, following Cummings,

Plaintiff is not entitled to recover any damages other than nominal damages if he carries

his burden of proving intentional discrimination.

C. Intentional Discrimination

1. Standard for Intentional Discrimination

Section 504 of the RA provides that “[n]o 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.”28 Regulations

promulgated by the Department of Health and Human Services offer additional guidance

regarding the statute's prohibition in this context. First, “[a] recipient hospital that provides

health services or benefits shall establish a procedure for effective communication with

persons with impaired hearing for the purpose of providing emergency health care.”29

Second, “[a] recipient ... that employs fifteen or more persons shall provide appropriate

auxiliary aids to persons with impaired sensory, manual, or speaking skills, where

necessary to afford such persons an equal opportunity to benefit from the service in

25 Id.

26 --- F. Supp. 3d ---, 2020 WL 1908030 (M.D. La. Apr. 17, 2020).

27 2020 WL 1435156 (M.D. La. Mar. 23, 2020).

28 29 U.S.C. § 794(a).

29 45 C.F.R. § 84.52(c).

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question.”30 These “auxiliary aids may include brailed and taped material, interpreters,

and other aids for persons with impaired hearing or vision.”31 “[A]ids, benefits, and

services, to be equally effective, are not required to produce the identical result or level

of achievement for handicapped and nonhandicapped persons, but must afford

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.”32

In Miraglia v. Board of Supervisors of Louisiana State Museum, the Fifth Circuit

recently addressed the intent requirement in disability discrimination cases, noting that,

“[t]hough intent is a necessary element of a damages claim, we have previously declined

to adopt a specific standard of intent.”33 Deciding that it “need not delineate the precise

contours in this case,” the court referred to its past requirements that a plaintiff prove

something more than deliberate indifference to show intent.34

In Rosario v. St. Tammany Parish Hospital Service District No. 1,35 the Eastern

District of Louisiana discussed the Fifth Circuit’s guidance for what might constitute intent

in these types of cases:

The Fifth Circuit has repeatedly declined to adopt a specific standard of

intent for these statutes. See Miraglia v. Bd. of Supervisors of La. State

Museum, 901 F.3d 565, 574 (5th Cir. 2018); Perez v. Doctors Hosp. at

30 45 C.F.R. § 84.52(d)(1) (emphases added).

31 45 C.F.R. § 84.52(d)(3).

32 45 C.F.R. § 84.4(b)(2).

33 901 F.3d 565, 574 (5th Cir. 2018)(citing Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App'x 180,

184 (5th Cir.2015) (per curiam) (stating that “[w]e did not define what we meant by intent in Delano–Pyle”);

see also Frame, 657 F.3d at 231 n.71 (expressing no opinion on whether failure to make reasonable

accommodations constitutes intentional discrimination).

34 Id. at 575 (emphasis added).

35 2019 WL 1766983 at *7 (E.D. La. Apr. 22, 2019)(citing Martin v. Halifax Healthcare Sys., Inc., 621 F.

App'x 594, 604 (11th Cir. 2015) (“[A] hospital’s failure to provide an interpreter on demand is not sufficient

to support a finding of deliberate indifference.” (citing McCullum, 768 F.3d at 1147))).

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Renaissance, Ltd., 624 F. App'x 180, 184 (5th Cir. 2015). But the Fifth

Circuit has nonetheless offered some guidelines for what may constitute

intent. In Perez, the Fifth Circuit noted that intent implies purposeful

action. 624 F. App'x at 184 (“We conclude that on the present record, there

is enough to show a dispute of material fact on whether [defendant]

intentionally, i.e., purposefully, discriminated.”). In Miraglia, the court

explained that intent “requires that the defendant at least have actual

notice of a violation.” 901 F.3d at 575. That is, the defendant must have

some notice that its actions have caused the plaintiff to experience unlawful

discrimination. Id. (reversing district court and rendering judgment for

defendant when district court failed to make any findings that the defendant

had actual notice of a violation). In Miraglia, the court also noted that

previous Fifth Circuit opinions “seem to have required that a plaintiff prove

... something more than ‘deliberate indifference’ to show intent.” 901

F.3d at 575; see also Delano-Pyle, 302 F.3d at 575 (“There is no ‘deliberate

indifference’ standard applicable to public entities for purposes of the ADA

or the RA.”). Many other circuits use the deliberate indifference standard.

See S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 262-63

(3d Cir. 2013) (collecting citations from other circuits that have adopted the

deliberate indifference standard). Deliberate indifference requires a

showing that “the defendant knew that harm to a federally protected right

was substantially likely and failed to act on that likelihood.” McCullum v.

Orlando Reg'l Healthcare Sys., Inc., 768 F.3d 1135, 1147 (11th Cir. 2014)

(internal quotation marks omitted) (emphasis in original). There must also

be some evidence that the defendant made a “deliberate choice” not to

alleviate the likely harm. Id. at 1147-48.36

In Liese v. Indian River County Hosp. Dist., the Eleventh Circuit noted that “the

task of determining whether an entity subject to the RA has provided appropriate auxiliary

aids where necessary is inherently fact-intensive.”37 However, the Liese court clarified:

Nonetheless, this does not mean that every request for an auxiliary aid

that is not granted precludes summary judgment or creates liability

under the RA. Thus, for example, as both parties agree, the simple

failure to provide an interpreter on request is not necessarily

deliberately indifferent to an individual's rights under the RA. Indeed,

36 Id. at *6 (emphasis added).

37 701 F.3d 334, 342 (11th Cir. 2012)(citing e.g., Chisolm v. McManimon, 275 F.3d 315, 327 (3d Cir.2001)

(“Generally, the effectiveness of auxiliary aids and/or services is a question of fact precluding summary

judgment.”); Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir.1999) (finding that whether a sign language

interpreter was required under the RA is a question of fact inappropriate for summary judgment); Duffy v.

Riveland, 98 F.3d 447, 454–56 (9th Cir.1996) *343 (concluding that whether qualified sign language

interpreter was required under the Americans with Disabilities Act of 1990 is a question of fact inappropriate

for summary judgment).

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construing the regulations in this manner would effectively substitute

“demanded” auxiliary aid for “necessary” auxiliary aid. Instead, the proper

inquiry is whether the auxiliary aid that a hospital provided to its hearing-

impaired patient gave that patient an equal opportunity to benefit from the

hospital's treatment.38

The court explained that:

Whether a particular aid is effective in affording a patient an equal

opportunity to benefit from medical treatment largely depends on

context, including, principally, the nature, significance, and

complexity of the treatment. For example, emergency surgery is often a

complicated concept to convey to a person who can hear well; the attendant

risks, manner of surgery, prognosis, and advantages or disadvantages of

immediate or postponed surgery can only complicate this communicative

task. Thus, under circumstances in which a patient must decide whether to

undergo immediate surgery involving the removal of an organ under a

general anesthetic, understanding the necessity, risks, and procedures

surrounding the surgery is paramount. Under these circumstances, auxiliary

aids limited to written notes, body gestures, and lipreading may be

ineffective in ensuring that a hearing-impaired patient receives equal

opportunity to benefit from the treatment.39

Thus, the Eleventh Circuit draws a distinction in the necessity of the type of

accommodation depending on the nature of the medical circumstances.

With this guidance in mind, the Court turns to the summary judgment evidence

submitted in this matter.

2. Summary Judgment Arguments and Evidence

OLOL contends the summary judgment evidence demonstrates that Plaintiff was

offered appropriate auxiliary aids, but his partner Tim Harris (“Harris”), who accompanied

him to OLOL on the date of the incident, flatly rejected them. OLOL cites chart notes from

nurse Cayla Crosby (“Crosby”) who treated Plaintiff in the ER, wherein Crosby details that

Plaintiff’s partner was “belligerent,” and refused to go forward with anything other than an

38 Id. at 343 (emphasis added).

39 Id. (emphasis added).

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ASL interpreter.40 Crosby later confirmed these notes in her deposition wherein she

testified that Plaintiff’s partner was aggressive and that he refused video interpreting

services available.41 Despite the interference by Plaintiff’s partner in Plaintiff’s treatment,

OLOL maintains that Plaintiff was examined and treated within approximately 15 minutes

and discharged within an hour of his arrival.42

Thus, OLOL contends that the summary judgment evidence demonstrates that it

attempted to make a reasonable accommodation to Plaintiff to ensure effective

communication, but Plaintiff, through his partner, refused such accommodation.

Moreover, OLOL maintains that the law does not require that OLOL provide an ASL

interpreter upon demand, and OLOL argues that use of the VRI would have provided a

more expedient method for triage and evaluation of Plaintiff’s medical emergency. Thus,

Plaintiff cannot prove that OLOL intentionally discriminated against him based on his

disability.

Plaintiff opposes OLOL’s motion and argues there are material facts in dispute

which preclude summary judgment. Plaintiff relies entirely on his own deposition

testimony and excerpts of deposition testimony of his mother and one of the nurses who

treated him on July 1, 2017. Plaintiff testified that, after cutting his thumb at work, he

texted his boyfriend (Harris) to meet him at the emergency room at OLOL, and they

arrived at the emergency room at “pretty much at the same time.”43 Plaintiff testified that

he asked Harris to “[p]lease tell them to call for an interpreter,” but the people at in-take

40 Rec. Doc. No. 44-3.

41 Rec. Doc. No. 44-4, Depo of Crosby at 28.

42 Id. at 30.

43 Rec. Doc. No. 44-5, Plaintiff’s Dep. 44:1.

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responded “I don’t know how.” Plaintiff does not indicate whether Harris communicated

this to him, or he observed it himself. Plaintiff testified that he cannot hear at all and does

not read lips.44 When Plaintiff was brought back to check his vitals, he repeatedly

communicated that he needed an interpreter, and they “[w]ouldn’t allow an interpreter.

They were refusing an interpreter.”45 Plaintiff also testified that the hospital attempted to

provide him with VRI, but “it was not working;”46 “I’m not sure whether the VRI device was

down or broken or not, because they never brought it to me.”47

Despite testifying that “Tim is not an interpreter and my mother refused to interpret

as well,” Plaintiff then testified about what the doctor told him regarding the treatment of

his thumb.48 Plaintiff acknowledged that Harris’ conduct caused the staff to bring in

security: “I mean, it was quite the ordeal. I got into an argument. It got so loud that they

called security and they told Tim that he was getting too loud and not following the rules.

Police or security came over and kind of watched to see what was going on.”49 Plaintiff

further testified that the communication between Harris and OLOL staff was “loud,” and

he told Harris “don’t do that.”50

Regarding the initial request for an interpreter, Plaintiff testified that he “signed to

Tim, Tim made the request to the woman at the front desk and she looked at me like she

had never heard of that.”51 When asked to describe this woman, Plaintiff responded that

44 Id. at 44:4-6; 47:7-8: “They thought that I was going to lip read, but I don’t lip read.”

45 Id. at 44:21-22.

46 Id. at 44:24-25.

47 Id. at 46:3-5.

48 Id. at 46:11-12. Plaintiff states again that, while he was being given discharge instructions, his mother

“refused to interpret.” Id. at 55:11-12. This contradicts his mother’s testimony, discussed infra.

49 Id. at 47:8-13.

50 Id. at 56:20-21.

51 Id. at 47:25 – 48:1-2.

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he could not remember if the person was male or female, black or white, or any other

description.52 Plaintiff acknowledged that he was in the waiting room approximately four

minutes, and hospital staff quickly took him back for vitals.53

Although Plaintiff testified that the nurse checking his vitals did not bring a VRI

machine to the room and said, “I think it’s broken,” he qualified this statement:

Q. How do you know she said that they thought it was broken?

A. I'm not sure. I'm not sure if it was broken. I don't know if it was broken if

that's truthful or not.

Q. You don't know what the nurse actually said, do you?

A. No.

Q. You relied on Tim to tell you what somebody said?

A. The nurse was using really large words, things that I didn't understand.

Thing that I wouldn't have understood in English. I didn't know what they

were saying.

Q. That's what I'm trying to understand and make clear. You don't know what

Tim said and you don't know what the nurse said, correct?

* * *

Q. You didn't hear Tim, so you don't know what Tim actually said, do you?

A. Tim is not a professional interpreter.

Q. That's not what I asked. You do not know what Tim said to the nurse?

A. I didn't understand Tim's voice, no.

Q. You don't know what the nurse said to Tim?

A. No.54

When asked whether he knew if Harris was offered a VRI and refused, Plaintiff

responded: “Honestly, no.ꞏ But what I did was I told Tim they need to bring the interpreter

in the computer and he understood and he told them and then they said it's broken or it's

not working or for some other reason. But, frankly, I don't know. I don't know if it's the

truth or not.”55

52 Id. at 48:3-10.

53 Id. at 49:19-23.

54 Id. at 49:8-24 – 50:6-14.

55 Id. at 54:4-9.

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When asked why Plaintiff did not use his cellphone to call the service that would

interpret for him, he responded that he did not attempt this because “the internet service

is terrible. It wouldn’t even work. You had to have a real interpreter in person.”56 When

asked how often Plaintiff had tested the hospital’s cellular service, Plaintiff responded: “I

just looked at my phone. I didn’t do anything with it. I was just mad that there was no

interpreter. I just looked at it, but I never did anything with it.”57

Plaintiff also testified repeatedly that the OLOL staff wanted him to read their lips.

When pressed on how he concluded this, Plaintiff admitted that Harris never told him the

staff wanted Plaintiff to read their lips; rather, Plaintiff assumed this because the staff

looked at him and “they were moving their lips.”58

When asked if Plaintiff ever requested materials to write messages, he responded:

“No, I refused. I needed an interpreter there in person, period.”59 When asked if he would

have refused to use the VRI, Plaintiff responded: “No, no, I never said that. … And then

that nurse said that the VRI was not working. I don’t know if it was true. I don’t know if

they made that up. I have no way to know.”60 When Plaintiff stated again that the nurse

said that the VRI was not working, he agreed that Harris told him the nurse said that.61

Plaintiff acknowledged that, without Harris, he did not understand anything anyone said

at the hospital.62

56 Id. at 57:21-25.

57 Id. at 58:6-9.

58 Id. at 59:17-18; 60:17.

59 Id. at 60:25 - 11-12

60 Id. at 61:21-25 – 62:1-2.

61 Id. at 63:4-7.

62 Id. at 64:6-8.

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Plaintiff testified that “there’s just no excuse to not have an interpreter,”63 and that

deaf individuals “require an interpreter. So we ask them to get an interpreter – call an

interpreter and they just refused. It’s not right. And that’s why I’m suing the hospital.”64

The deposition testimony of intake nurse Crosby, presented by OLOL, paints a

somewhat different picture. Crosby testified that the policy at OLOL is to provide deaf

patients with VRI, and OLOL does have a call-out service for ASL interpreters, when

necessary.65 Crosby explained that “call-out” means that an interpreter may not be

available on-site at all times and often must be requested to come to the hospital.66

Crosby testified that the auxiliary aid routinely offered by OLOL at the time of Plaintiff’s

injury was “Deaf TV.”67 Crosby also testified that patients may use their family members

and friends to communicate with hospital staff, but they are not required to do so.68

Additionally, Crosby indicated that the complexity of the case would inform her decision

regarding the necessity of an in-person translator.69 Crosby testified that she was

educated upon her hiring at OLOL regarding its policy for accommodating deaf patients,

and there is signage posted in the hospital advising patients of their rights under the OLOL

policy.70

Crosby recalled the night she encountered Plaintiff and Harris in the ER. When

Crosby called Plaintiff back to triage from the waiting room, Harris approached her “very

aggressive[ly],” advised her that Plaintiff was deaf, and advised that “he would not speak

63 Id. at 70:24-25.

64 Id. at 71:5-8.

65 Rec. Doc. No. 44-4, Crosby Dep. at 14:3-5.

66 Id. at 14:8-13.

67 Id. at 15:16.

68 Id. at 16:9-13.

69 Id. at 16:15-23.

70 Id. at 17:9-25; 18:1-4.

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to [her] until there was a live interpreter present.”71 Crosby initially attempted to speak to

Plaintiff, but Harris was “adamant that neither of them were speaking to me or

communicating with me until there was a live translator, a live interpreter.”72 Crosby

explained the process for requesting a live interpreter:

I explained to him that we have twenty-four hours a day, seven days a week

that we have a video service available. I explained to him that was readily

available and that we could use that at that time. He refused it and said that

he would not communicate with us until there was a live interpreter there.

I explained to him that we do have a service that we use, but that it's a call-

out service. So I had no way of knowing how long it would take to get an

interpreter there in person. My charge nurse was notified. And it was

explained to him that if needed we would call the interpreter service. But he

refused the TV service that we had.73

Crosby informed the charge nurse that Plaintiff was requesting an in-person

translator; however, she did not know if anyone was called out given that Plaintiff was

“dispositioned and discharged so quickly.”74 Crosby explained that “dispositioned” meant

that “the mid-level provider and the supervising doctor assessed [Plaintiff’s] injuries and

his complaints and decided on his disposition, which was to be discharged home.”75

Crosby acknowledged that, if Plaintiff had needed extensive treatment or had been

admitted, “it would have probably been completely different.” But his length of stay was

less than an hour, so.”76

71 Id. at 28:7-16.

72 Id. at 29:1-6.

73 Id. at 29:9-23.

74 Id. at 30:3-14.

75 Id. at 30:15-20.

76 Id. at 30:21-24. Crosby acknowledged that OLOL policy requires an interpreter “if necessary,” and she

stated that staff “should be able to use the VRI” unless there is a technical issue with the VRI or they are

otherwise unable to effectively communicate with a patient. She further testified that the policy also says

that an interpreter will be called out in “more complex cases,” and noted that Plaintiff was discharged in

less than thirty minutes. Id. at 41:1-15.

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During the encounter, Crosby found Plaintiff to be calm but could not say

cooperative in providing her any information because Harris “was very aggressive and

was preventing that from happening.”77 Crosby testified that she offered the use of Deaf

TV “at least twice during triage and both times [Harris] refused it.”78 Crosby also

attempted to communicate with Plaintiff directly by looking at him and speaking to him

directly, but these attempts were thwarted by Harris in that he “adamantly refused to

communicate with me at all without a live, in-person interpreter present.”79 Based on this

interaction, Crosby admitted that she never brought the Deaf TV into Plaintiff’s triage

room.80

Crosby testified that she had to have the charge nurse escort Plaintiff and Harris

from the triage room to an exam room because “Harris refused to leave the triage room.”81

Crosby estimated that Plaintiff was in triage for approximately ten minutes.82 Crosby

related that Harris later came back into the triage room while Crosby was triaging another

patient: “He came in unannounced without knocking while I was examining another

patient and asked me for my name.”83

Crosby further testified that, during the entire encounter, Harris and Plaintiff were

signing “the entire time,” but she did not know what Harris communicated to Plaintiff

because she does not know ASL.84 Crosby was aware that Plaintiff’s mother arrived later,

77 Id. at 31:1-6.

78 Id. at 31:11-16.

79 Id. at 32:5-19.

80 Id. at 32:20-25.

81 Id. at 33:3-6.

82 Id. at 33:6-7.

83 Id. at 33:20-23.

84 Id. at 34:3-8.

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but Crosby had no interaction with Plaintiff’s mother.85 Crosby confirmed that she was

unable to obtain Plaintiff’s medical history during triage because Harris “adamantly

refused the translation services that we had available at the time.”86 Crosby testified that

she never advised Harris that the VRI was not working, and she offered it on “two separate

occasions in the triage room alone.”87

Crosby was able to obtain Plaintiff’s vitals during triage. Although she

acknowledged that she was unaware whether Plaintiff could read lips, she testified that

she attempted to ask Plaintiff directly if he wanted to use the VRI, and he responded to

her by shaking his head. Crosby, admittedly unable to interpret whether Plaintiff

understood this communication, testified that she believed his negative response to be

an indication that he understood what she had offered.88 Crosby had no further

interaction with Plaintiff or Harris once they were taken to an exam room.89

Crosby was asked if Plaintiff ever made any efforts to supersede Harris in attempts

to communicate with her or request VRI; Crosby responded that he did not. In terms of

Harris’ interference with Crosby’s ability to obtain information from Plaintiff, she testified

that Harris “was aggressive from the beginning, very belligerent from the beginning. He,

before we even stepped into the triage room, said, I have it charted, said that he is not

going to go through this computer crap again and he wanted to -- he was not speaking

to me until there was a live interpreter.”90 Crosby summarized her encounter with Plaintiff

85 Id. at 34:20-23.

86 Id. at 35:1-3.

87 Id. at 35:4-8.

88 Id. at 38:13-25; 39:1-10.

89 Id. at 39:19-21.

90 Id. at 49:19-25; 50:1-2.

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and Harris as follows:

[Harris] adamantly refused it from the very beginning. Before I even offered

it to him, he said that they were not speaking to me until there was a live

interpreter. He referred to the VRI as quote/unquote computer crap.

And then when he came into the room it again was offered to him. I

explained we have translator services, but they are call out. I asked again

could we use the VRI at that time until we figured out whether we would

need to call a translator service or how long it would take for a translator

service to get there. He refused it again.

I offered it to Mr. Lockwood directly at that time. I asked him if he would be

willing to use it. This was multiple times during this interaction. He said at

that time that I looked him, spoke to him directly, asked him if he would be

willing to use the VRI or Deaf Talk TV he said no, or did not say anything,

but shook his head no. And then that was when I said that it would be

difficult for me to triage him based on the fact that they – I was unable to

communicate with him at that time.

So I called my charge nurse and I told her the situation. And then that was

when we decided to put him in a treatment room, and we would triage him

from that point. I got vitals on him and I put that note in, but I actually didn’t

triage him because I wasn’t able to get any information from him or his

partner.91

Following Plaintiff’s triage, Crosby testified that Plaintiff was seen in an exam room

by Charge Nurse Alaina Saltamacchia.92

To contrast Crosby’s testimony, Plaintiff offers excerpts of the depositions of his

mother, Carole Montgomery (“Montgomery”), and the primary nurse handling Plaintiff’s

treatment on the night in question, Shakita Anderson, RN (“Anderson”). Plaintiff

submitted four disjointed pages from Montgomery’s deposition.93 Montgomery testified

that she walked into Plaintiff’s intake room on July 2, 2017 “to make sure an interpreter

91 Id. at 50:10-25; 51:1-16.

92 Id. at 51:17-21.

93 Rec. Doc. No. 51-3, Montgomery Dep., pp. 7-8, 23, & 44.

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was present, and there was no interpreter.”94 Montgomery claims this unidentified nurse

advised her that she was not needed and slammed the door in Montgomery’s face.95

Montgomery further testified that she observed an unplugged VRI in the room and asked

if that had been used for her son, to which she claims the nurse responded “we don’t

need that.”96 When Montgomery asked this same, unidentified nurse why no interpreter

was there, she testified that the nurse responded: “we don’t use interpreters.”97

Montgomery also testified this nurse said that the VRI machine was not working at the

time.98 Contrary to Plaintiff’s deposition testimony supra, Montgomery testified that she

interpreted certain information regarding Plaintiff’s medical history to the nurse in the

exam room because her demand for a live interpreter was refused.99

Anderson testified that, as the primary nurse on Plaintiff’s case, it was her

responsibility to assess his injury, implement a plan of care, and administer necessary

medication – anything pertaining to his treatment.100 In the three pages of proffered

deposition testimony, Anderson essentially testified that she did not remember much

about the treatment and discharge of Plaintiff.101 Anderson acknowledged that there was

no notation in Plaintiff’s chart that he requested an in-person interpreter at the time of

treatment and discharge but stated that “if I offered it, that would be something I would

chart.”102

94 Id. at 7:12-13.

95 Id. at 7:19-25.

96 Id. at 8:3-7.

97 Id. at 8:7-8.

98 Id. at 8:9-10.

99 Id. at 44:4-16.

100 Rec. Doc. No. 51-2, Anderson Dep. at 25:24-25; 26:1-2.

101 Id. at 26:25; 27:1-11.

102 Id. at 27:12-19.

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3. Analysis

Plaintiff claims his case is analogous to Perez v. Doctor’s Hosp. at Renaissance,

Ltd.103 and Delano–Pyle v. Victoria Cty., Tex.104 In Perez, the plaintiffs were the parents

of an infant who was diagnosed with a brain tumor, which required numerous hospital

visits over a four-and-a-half-year period.105 The plaintiffs were both deaf individuals who

relied on ASL to communicate.106 At summary judgment, they presented evidence that

the defendant hospital “repeatedly failed to provide them an interpreter” on 18 occasions

over this period.107 One plaintiff testified that sometimes the “nurses would say no” when

an interpreter was requested.108 When an interpreter was provided, the plaintiffs testified

they would sometimes have to wait “upwards of a full day” for the interpreter to arrive.109

The defendant occasionally attempted to use VRI to communicate with the plaintiffs, but

plaintiffs presented evidence that the VRI did not always function properly.110

In Delano-Pyle, a police officer responded to a car accident and found the plaintiff,

who communicated to the officer that he was severely hearing-impaired.111 The officer

administered three sobriety tests to the plaintiff without inquiring about effective forms of

communication.112 When the plaintiff failed these tests, the officer Mirandized him.113

The plaintiff was taken to the police station where his legal rights were again read to him,

103 624 Fed.Appx. 180 (5th Cir. 2015).

104 302 F.3d 567 (5th Cir. 2002).

105 Perez, 624 Fed. Appx. at 182.

106 Id.

107 Id. at 185.

108 Id.

109 Id. at 182.

110 Id.

111 Delano-Pyle, 302 F.3d at 570.

112 Id.

113 Id. at 571.

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and the officer wrote Miranda warnings on a blackboard.114 Despite having full knowledge

that the plaintiff was deaf, the officer proceeded to interrogate the plaintiff “without any

accommodations to ensure that [the plaintiff] understood the circumstances of his

arrest.”115 The Fifth Circuit upheld a jury’s verdict in favor of the plaintiff because the

officer had knowledge of the plaintiff’s impairment, admitted that he was unsure whether

the plaintiff understood him both during the sobriety test or when he verbally

communicated his legal rights but failed to provide any accommodation to assist the

plaintiff in understanding what was happening.116

The Court sees little resemblance in the facts of this case and those in Perez and

Delano-Pyle. Rather, the Court finds the following cases, wherein other district courts

have granted summary judgment, to be more analogous to the facts presented herein.

In Rosario, mentioned supra, the district court for the Eastern District of Louisiana

determined that a hospital was not deliberately indifferent to a deaf plaintiff for failing to

provide a live interpreter. The deaf and mute plaintiff, who was 32 weeks pregnant, was

sent to the emergency room after presenting at a routine check-up with very high blood

pressure.117 When the plaintiff arrived at the ER, she gave a written note to hospital staff

requesting an interpreter.118 Consistent with hospital policy, the treating nurse provided

the plaintiff with an iPad to communicate with the plaintiff through VRI.119 However, the

VRI communications did not go smoothly: it would often disconnect from the WiFi; the

114 Id.

115 Id.

116 Id. at 575-76.

117 2019 WL 1766983 at *1.

118 Id.

119 Id. at *2.

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picture would freeze or become pixelated; or the picture would disappear altogether.120

This was the first time the plaintiff had ever used VRI to communicate.121 The plaintiff’s

partner and father of her children accompanied the plaintiff and witnessed the technical

difficulties with the VRI that caused the plaintiff to become mad and frustrated owing to

her inability to understand.122 Following this interaction, the plaintiff again requested a

live interpreter and allegedly provided the nurse with the name of an interpreter the

plaintiff had previously used. Although the nurse disputed this, she claimed that she left

the room and called for ASL interpreter services but was ultimately unsuccessful in

obtaining someone.123 The nurse apologized to the plaintiff, advised that a live interpreter

was unavailable, and continued to communicate with the plaintiff via VRI.124

The plaintiff subsequently had an ultrasound and was given discharge instructions,

all via VRI, which occasionally worked.125 Although the VRI worked during the discharge

instructions, the plaintiff maintained that she did not understand the big words being used

or what medications she should take.126 When the plaintiff returned home, she was not

compliant with medications because she did not fully understand the accompanying

instructions.127 Although the plaintiff later delivered a healthy baby with the assistance of

a live interpreter, she filed suit against the hospital for the ER incident, claiming her rights

under the ADA, RA, and ACA were violated in that the hospital discriminated against her

on the basis of her disability by refusing to provide her with auxiliary aids and services

120 Id.

121 Id.

122 Id.

123 Id. at *3.

124 Id.

125 Id.

126 Id.

127 Id.

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necessary to ensure effective communication.128 The hospital moved for summary

judgment.

The Rosario court found that the plaintiff had failed to present evidence of

intentional discrimination: “Even when applying the deliberate indifference standard of

intent—which the Fifth Circuit has indicated is a lower threshold than the standard that

governs this Court, Miraglia, 901 F.3d at 575—the facts plaintiff has presented are

insufficient to preclude summary judgment.”129 The court rejected the argument that the

hospital was required to provide a live interpreter on demand: “Defendant’s initial

unwillingness to secure an on-site interpreter, and Reitz’s initial reliance on the VRI and

written communication, is not alone evidence of deliberate indifference.”130 Noting that

applicable “[r]egulations promulgated to implement the ADA’s provisions state that

appropriate auxiliary aids and services for the hearing impaired include ‘[q]ualified

interpreters on-site or through video remote interpreting (VRI) services,’”131 the court

determined that the nurse’s “initial use of the VRI and written communication instead of

securing an on-site interpreter was also consistent with defendant’s policies.”132 The

court continued:

When the VRI began to malfunction, plaintiff became visibly frustrated by

the quality of the VRI and reiterated her request for an on-site interpreter.

Reitz did not ignore plaintiff’s request. Indeed, plaintiff does not dispute that

Reitz left the room and called the Northshore DAC. The hospital’s phone

records confirm that Reitz placed this call. Reitz testified that a

representative from the Northshore DAC told her that no one was available

128 Id. at *4.

129 Id. at *

130 Id. at *7 (citing Martin v. Halifax Healthcare Sys., Inc., 621 F. App'x 594, 604 (11th Cir. 2015) (“[A]

hospital’s failure to provide an interpreter on demand is not sufficient to support a finding of deliberate

indifference.” (citing McCullum, 768 F.3d at 1147))).

131 Id. (quoting 28 C.F.R. §§ 35.104(1), 35.160(b)(1)).

132 Id.

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to come to the hospital on such short notice. Plaintiff has not presented any

facts that dispute Reitz’s testimony about this phone call.133

The court concluded that, since the nurse attempted to contact a live interpreter,

“[i]t was at worst negligent or careless of Reitz not to call the second organization listed,”

and “[n]egligence is not evidence of deliberate indifference or intentional

discrimination.”134

Important in the Rosario court’s analysis was the serious nature of the plaintiff’s

medical condition when she presented to the ER. The plaintiff agreed with the defendant

that her medical situation was very serious given the late stage of her pregnancy.135 The

court reasoned:

Making additional calls to ASL service providers, after she had been

informed by one organization that an interpreter was not available on such

short notice, would have delayed plaintiff’s treatment in an emergency

situation. Thus, even when drawing all inferences in plaintiff’s favor, Reitz’s

decision to not make these additional calls was a reasonable decision under

the circumstances. Her behavior is certainly not evidence of intentional

discrimination.136

The court also rejected the plaintiff’s claims of discrimination regarding her

discharge instructions. Although the plaintiff later testified that she did not understand the

VRI interpreter based on the big words being used during discharge instructions, the court

found that found that there was “no indication in the record that plaintiff made it known”

133 Id.

134 Id. at *8 (citing Saltzman v. Bd. of Comm'rs of N. Broward Hosp. Dist., 239 F. App'x 484, 488 (11th Cir.

2007)( (noting that although the hospital staff’s attempt to secure an on-site interpreter “may have been

negligently made, negligence is not intentional discrimination”); see also Jacobs v. W. Feliciana Sheriff’s

Dept., 228 F.3d 388 (5th Cir. 2000) (in the context of a Section 1983 claim, noting that deputy sheriff’s

“failure to abide by” certain policies “evinces at best[ ] negligence ... which is insufficient to support a finding

of deliberate indifference”)).

135 Id. at *8.

136 Id.

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to the nurse that she was unable to understand the VRI communications.137 The court

stated:

Before intent can be imputed on a defendant, the defendant “must have

notice of a violation.” Miraglia, 901 F.3d at 575 (defendant did not

intentionally discriminate by not providing adequate wheelchair-accessible

ramps at its entrance when there was no evidence the defendant had notice

the ramps were not ADA-compliant). Because there is no evidence that

plaintiff notified anyone at discharge that the accommodation the hospital

provided her was ineffective, no reasonable juror could find that Reitz

intentionally discriminated against plaintiff at discharge. Id.; McCullum, 768

F.3d at 1148 (no finding of deliberate indifference when there was “no

evidence to support a conclusion that [defendant’s] staff knew that their

accommodations were ineffective”).138

Like the present Plaintiff, the Rosario plaintiff also likened the facts of her case to

those in Perez and Delano-Pyle. The court easily distinguished these cases from the

plaintiff’s:

Unlike Perez, this is not a case where a defendant’s repeated failure to

properly accommodate the plaintiff over an extended period of time allows

for an inference of intentional discrimination. Rather, plaintiff’s case is

limited to her experience on one emergency visit that lasted approximately

three hours. During that emergency visit, the hospital first provided plaintiff

with an interpreter through VRI, and then attempted to secure an on-site

interpreter when the nurse was notified that the VRI was malfunctioning.

Plaintiff admits that she was able to effectively communicate with

defendant’s staff during her subsequent visit. Perez is thus entirely

inapposite.

* * *

Unlike the officer in Delano-Pyle, defendant did attempt to accommodate

plaintiff’s disability. Reitz first provided plaintiff with an interpreter through

VRI, and then attempted to secure an on-site interpreter when the VRI

malfunctioned. As already addressed, that the VRI initially malfunctioned,

and that Reitz was—at worst—negligent in attempting to secure an on-site

interpreter, is not enough to support an inference that Reitz was deliberately

indifferent to plaintiff’s needs. This is especially true considering the nature

of plaintiff’s emergency visit to the hospital. Because the evidence before

the Court is not even enough to show that defendant was deliberately

indifferent, it is not enough to establish intentional discrimination in the Fifth

137 Id.

138 Id.

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Circuit. Miraglia, 901 F.3d at 575 (noting that the Fifth Circuit has previously

required “something more than ‘deliberate indifference’ to show intent”).

The same analysis distinguishing Rosario’s case from Perez and Delano-Pyle is equally

applicable in the present case.

While not binding on the Court, the Court also finds the facts of this case similar to

those in Juech v. Children’s Hospital and Health System, Inc.,139 particularly with respect

to the Juech court’s analysis of the plaintiff’s evidence. In Juech, in 2015, the deaf plaintiff

took her infant to the emergency room of the defendant hospital and asked the hospital

to provide a live ASL interpreter.140 The plaintiff had been to this hospital approximately

10 times previously and had requested an interpreter on each visit.141 Although the

hospital’s general policy is to provide an interpreter when requested, if an interpreter is

unavailable, the hospital provides VRI.142 In admitting the plaintiff’s son, VRI was used,

and the plaintiff complained that the hospital staff did not know how to set up or use the

VRI.143 Further, the plaintiff complained that there were several technical difficulties with

the VRI during their stay before an in-person interpreter later arrived.144 The plaintiff’s

infant was placed in the intensive care unit and was discharged three days later. While

in the ICU, the plaintiff complained that she had to communicate several times by

messages typed on a phone or handwritten notes. An interpreter was present for

discharge.145

139 353 F.Supp.3d 772 (E.D. Wisc. 2018).

140 Id. at 774.

141 Id.

142 Id. at 775.

143 Id.

144 Id.

145 Id.

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Two years later in 2017, the plaintiff returned to the hospital with another infant

child, and she was provided a VRI interpreter. The plaintiff requested an in-person

interpreter for the following day, advising the staff that the VRI did not work for her, and

an in-person interpreter was provided upon her child’s discharge.146

The plaintiff sued the hospital for violations of the ADA, RA, and ACA, alleging the

hospital failed to provide her with auxiliary aids and services required to enable effective

communication during the hospitalization of her two children.147 The hospital moved for

summary judgment. In granting summary judgment in favor of the hospital, the court

highlighted problems with the plaintiff’s summary judgment evidence:

At first blush, it would appear disputes of material fact clearly preclude

summary judgment. After all, Juech disputes nearly all of Children's

Hospital's proposed findings of fact. But her disputes are generally based

upon empty rote objections, such as that the proposed fact is “immaterial,

vague, and misleading.” As to her own proposed facts, they are often

derived from her own deposition testimony, which itself is often

inconsistent, marked by significant gaps in her memory, and

sometimes not based upon personal knowledge.148

The court rejected the notion that the hospital was required to provide an in-person

interpreter at all times, finding that “it was not required to do so as long as it could provide

effective alternative means of communicating” with the plaintiff.149 The court also noted

that “written communication may be acceptable, especially for routine matters.”150 The

court also rejected the plaintiff’s contention that complications with the VRI demonstrated

discrimination:

146 Id.

147 Id. at 776.

148 Id. at 779 (emphasis added).

149 Id. (citing 28 C.F.R. § 36.303(c)(ii)).

150 Id. (citing 28 C.F.R. § 36.303(b)(i)).

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The court also rejects Juech's implication that any temporary failure of or

complication with the VRI amounts to discrimination. Technology is

imperfect, and the Department of Justice undoubtedly appreciated as much

when it adopted the relevant regulations approving VRI as a means for

providing a qualified interpreter. Delays and difficulties in initiating the VRI

do not necessarily amount to discrimination. In approving the use of friends

or family to facilitate communication under certain circumstances when an

interpreter is not available, the Department of Justice's regulations implicitly

acknowledge that an interpreter might not be immediately available. See 28

C.F.R. § 36.303(c)(3), (4). Given that it could be expected that it might take

some time for an interpreter to arrive at the location where her services are

needed (see ECF No. 47-2 at 19 (Juech's testimony discussing the need to

schedule interpreters a month or two weeks in advance because “it takes a

while to set up interpreters” and “It's too hard to get an interpreter at the last

minute”), a delay in obtaining and starting up the VRI does not necessarily

constitute discrimination.

Nor does a finding of discrimination necessarily follow simply from the fact

that a hospital tries to use an auxiliary aid that proves ineffective. For

example, a hospital may attempt to communicate through written notes only

to find that the issue being discussed is too complex for written notes. That

does not, in hindsight, render the attempt discriminatory. Only if the hospital

failed to provide an alternative auxiliary aid once it became clear that the

initial method of communication was ineffective might there be a claim for

discrimination.151

The plaintiff claimed that the hospital simply did not want to pay for a live

interpreter, and the court found that this statement was “based entirely on impermissible

hearsay.”152 The court explained:

[The plaintiff] recounts: “I asked for a live in-person interpreter and they

brought the VRI and I said please bring in a live interpreter again, and they

said that the hospital will not be paying for a live interpreter, so that I had to

use the VRI, and I was continuously fighting for that, that an interpreter in

person would be there.” (ECF No. 47-1 at 11.) Asked how she knew this,

she explained, “The nursing staff told my mother, and my mom interpreted

to me and let me know that.” *784 (ECF No. 47-1 at 11.) Although Juech

characterizes her mother as interpreting what the nursing staff said,

she acknowledges that the statement was made to her mother, not to

her. But the court was not presented with any testimony from Juech

or her mother as to whether her mother was actually interpreting—that

151 Id. at 780.

152 Id. at 783.

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is, relating verbatim something medical staff told Juech (which would

not be hearsay)—or simply relaying to Juech what she heard, perhaps

with her own inferences and characterizations, which would make the

statement hearsay. And the fact that Juech's mother is not fluent in

sign language (ECF No. 47-1 at 18) certainly makes it less likely that

the information Juech got from her mother was as a result of verbatim

translation.153

The court ultimately granted summary judgment in favor of the hospital, finding

that, “the fact that Children's Hospital did not provide Juech with an in-person interpreter

when she requested one does not, without more, suggest deliberate indifference.”154

The same evidentiary problems addressed by the Juech court are present in the

current case. Much of Plaintiff’s evidence is based on hearsay and not personal

knowledge. At first glance, it would appear that there are material facts in dispute such

that summary judgment is improper. However, considering that the bulk of Crosby’s

testimony is uncontroverted, the Court finds that OLOL is entitled to summary judgment

in this case. Accepting Plaintiff’s testimony as true, and interpreting all inferences in his

favor, the Court finds that the following facts are undisputed based on the admissible

summary judgment evidence submitted in this case.

Plaintiff authorized Harris to communicate with hospital staff on his behalf. Plaintiff

admits that he heard and understood nothing directly from any hospital staff and that he

relied only what Harris interpreted to him, despite the fact that Harris is not fluent in ASL

and was so angry in the ER that security was called to calm him down. Plaintiff believes

an in-person interpreter should always been provided to deaf patients, and the lack of an

153 Id. at 783-784.

154 Id. at 784 (citing Liese, 701 F.3d at 343 (“[T]he simple failure to provide an interpreter on request is not

necessarily deliberately indifferent to an individual's rights ....”)).

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in-person interpreter is why he filed suit. 155 Plaintiff did not attempt to communicate with

hospital staff via any other means of communication. Plaintiff does not know if Crosby

offered VRI or if it was functional on July 1, 2017. There is no summary judgment

evidence as to whether the VRI was functional or not because it was refused by Harris.

Plaintiff indicated more than once that he was unsure of the truthfulness of what Harris

was relaying to him. Harris has not submitted a sworn statement or given testimony in

this case.

Crosby’s deposition testimony is consistent with the notes she placed in Plaintiff’s

chart following his ER visit. Plaintiff offers no summary judgment evidence to contradict

Crosby’s testimony that Harris repeatedly and emphatically declined the offered

accommodation of VRI. Crosby’s testimony that she advised Harris that she would ask

for a live interpreter is likewise uncontroverted.

Plaintiff argues that his testimony and Montgomery’s testimony should be

accorded equal weight as Crosby’s in this matter. The Court agrees. However, Plaintiff

chose to provide 4 pages of Montgomery’s 93-page deposition transcript. Further, both

Plaintiff’s and Montgomery’s testimony are rife with hearsay and unidentified actors.

Montgomery never encountered Crosby after she arrived at the hospital. Montgomery

has no knowledge of the communications between Crosby and Harris. In the transcript

excerpt submitted from Montgomery’s deposition, Montgomery did not identify any person

who allegedly told her that the VRI was not working.

155 Rec. Doc. No. 44-5 at 71:5-8.

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The record also establishes that Plaintiff was seen for his injury quickly. Plaintiff’s

thumb laceration was treated without the need for stitches.156 Plaintiff was discharged

from the hospital in less than an hour, and he was released to return to work without

restrictions.157 As in Rosario, the Court must view the accommodations provided in the

context of the medical circumstances. Given the swift treatment and discharge for what

was obviously deemed a minor injury based on the treatment, it was not unreasonable

for OLOL to attempt to utilize VRI or other forms of communication rather than wait to

provide an interpreter. As set forth above, the law does not require an in-person

interpreter on demand in any event, but certainly in this instance, Plaintiff was released

before a live interpreter could have arrived at the hospital. Waiting for an in-person

interpreter would have significantly delayed Plaintiff’s treatment.

Applying the applicable legal standards to the undisputed facts established in this

case, the Court finds that Plaintiff has failed to present sufficient summary judgment

evidence from which a reasonable finder of fact could conclude that any conduct on the

part of OLOL staff was “something more than” deliberately indifferent to Plaintiff’s

disability. Plaintiff has failed to present evidence that OLOL staff had actual notice that

Plaintiff’s rights were being violated. Further, based on uncontroverted facts, OLOL made

good faith efforts to attempt to accommodate Plaintiff, which were refused by Plaintiff’s

partner, who he instructed to speak on his behalf. There is no evidence that OLOL made

a “deliberate choice” to discriminate against the Plaintiff.

156 The Court acknowledges that Plaintiff’s testimony demonstrates that he was dissatisfied with the medical

care he received for his injury; however, that is irrelevant to the question before the Court. Further, Plaintiff

testified that he never suffered any infection or had further problems with this injury following his discharge.

157 Rec. Doc. No. 44-3, p. 3.

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D. Entitlement to Injunctive Relief

Plaintiff has also moved for injunctive relief, requesting that the Court order OLOL

to implement various relief measures, including, inter alia, developing and implementing

policies prohibiting future discrimination against deaf individuals, prohibiting the denial to

deaf individuals their right to effective communication; requiring OLOL to provide ASL

interpreters when requested; and posting proper notices of deaf patients’ rights.158 OLOL

moves for summary judgment on Plaintiff’s claim for injunctive relief.

To establish Article III standing, a plaintiff must show: (1) an injury in fact that is

concrete, particularized, and imminent, and is not conjectural or hypothetical; (2) a causal

connection demonstrating that the injury is fairly traceable to the defendant’s challenged

actions; and (3) that it is likely—not simply speculative—that a favorable decision will

redress the injury.159 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.”160 Because the

Court has found no injury in fact, Plaintiff is not entitled to injunctive relief.

158 Rec. Doc. No. 1, pp. 15-16.

159 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (citations and quotation marks omitted).

160 Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir. 2011).

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III. CONCLUSION

For the reasons set forth above, OLOL’s Motion for Summary Judgment161 is

GRANTED. Plaintiff’s claims are dismissed with prejudice. The Motion for

Reconsideration162 and Joint Motion to Continue Trial163 are hereby DENIED without

prejudice as MOOT.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this 15th day of June, 2020.

S

____________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

161 Rec. Doc. No. 44.

162 Rec. Doc. No. 61.

163 Rec. Doc. No. 74.

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