Francois v. Our Lady of the Lake Foundation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DAMIAN FRANCOIS CIVIL ACTION

VERSUS

OUR LADY OF THE LAKE 17-393-SDD-SDJ

FOUNDATION

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, Damian Francois

(“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 Plaintiff was admitted to OLOL on April 11, 2017 after being shot in the back by

his uncle.5 Plaintiff contends he experienced extensive discrimination at OLOL, including

the refusal by OLOL provide him with a qualified sign language interpreter. According to

Plaintiff, the most significant instance of discrimination was from April 11, 2017 through

April 16, 2017, when Plaintiff claims OLOL staff attempted to communicate with him solely

1 Rec. Doc. No. 118.

2 Rec. Doc. No. 134.

3 Rec. Doc. No. 144.

4 Rec. Doc. No. 20, ¶¶ 9-10.

5 Rec. Doc. No. 134-7, Francois Depo. at 27:2-14.

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through lip reading and passing notes, which was significant because it was immediately

after Plaintiff had undergone a surgery following his gunshot injury. Due to the alleged

lack of equal opportunity to communicate, Plaintiff claims he could not understand his

condition, treatment options, prescribed medications, or ultimate prognosis.

OLOL denies that it discriminated in any way against Plaintiff and claims that, at

all times, the services provided by OLOL complied with the law. OLOL maintains that its

staff believed that Plaintiff understood the methods of communications utilized between

April 11 and April 16, 2017, and, as soon as staff was made aware that Plaintiff was not

understanding and required an ASL interpreter, one was provided to Plaintiff for the

remainder of his lengthy hospitalization.

Plaintiff filed this lawsuit6 alleging that OLOL violated his rights under Section 504

of the Rehabilitation Act of 1973 (“RA”)7 and Section 1557 of the Patient Protection and

Affordable Care Act (“ACA”).8 Plaintiff seeks damages, injunctive and declaratory relief,

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

claims.

II. APPLICABLE LAW

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

as a matter of law.”9 The party moving for summary judgment is initially responsible for

6 Plaintiff asserted claims under the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12181, and the

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

previously dismissed.

7 29 U.S.C. § 794.

8 42 USC § 18116.

9 Fed. R. Civ. P. 56.

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

material fact.10 A court must deny the motion for summary judgment if the movant fails

to meet this burden.11

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.”12

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

judgment may be granted.”14

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

a motion for summary judgment.15 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.16 Under this standard, a genuine issue of material fact exists if a reasonable

trier of fact could render a verdict for the nonmoving party.17

B. Compensatory Damages Unavailable

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

P.L.L.C.,18 wherein the court held that emotional distress damages were not available

under ADA and RA,19 this Court recently granted partial summary judgment on claims for

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

11 Id.

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

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

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

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

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

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

18 948 F.3d 673 (5th Cir. 2020).

19 Id. at 680.

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emotional distress damages in King v. Our Lady of the Lake Hospital, Inc.20 and

Labouliere v. Our Lady of the Lake Foundation.21 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.”22 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.”23

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

question.”24 These “auxiliary aids may include brailed and taped material, interpreters,

20 455 F. Supp. 3d 249 (M.D. La. 2020).

21 2020 WL 1435156 (M.D. La. Mar. 23, 2020).

22 29 U.S.C. § 794(a).

23 45 C.F.R. § 84.52(c).

24 45 C.F.R. § 84.52(d)(1).

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and other aids for persons with impaired hearing or vision.”25 “[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.”26

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.”27 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.28

In Rosario v. St. Tammany Parish Hospital Service District No. 1,29 the Eastern

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

in these types of cases:30

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

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

25 45 C.F.R. § 84.52(d)(3).

26 45 C.F.R. § 84.4(b)(2).

27 901 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).

28 Id. at 575 (emphasis added).

29 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))).

30 Id. (citing McCullum v. Orlando Reg’l. Healthcare Sys., Inc., 768 F.3d 1135, 1147 (11th Cir. 2014)).

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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 1147-48.31

In Liese v. Indian River County Hospital District, 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.”32 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,

construing the regulations in this manner would effectively substitute

31 Id. at *6 (emphasis added).

32 701 F.3d 334, 342 (11th Cir. 2012)(see 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)(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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“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.33

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.34

By this rationale the medical circumstances are an important consideration in determining

the nature and type of accommodation.

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

submitted in this matter.

III. SUMMARY JUDGMENT ARGUMENTS AND EVIDENCE

OLOL submits that the question on summary judgment is not whether Plaintiff

actually understood or communicated effectively during the course of his care and

treatment from April 11th to April 16th, 2017 but rather, the question is whether there is

summary judgment evidence that OLOL staff actually knew35 he did not understand and

33 Id. at 343 (emphasis added).

34 Id. (emphasis added).

35 In Miraglia, the court explained that intent “requires that the defendant at least have actual notice of a

violation.” 901 F.3d at 575.

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showed deliberate indifference to this actual knowledge by failing to facilitate effective

forms of communication.

When Plaintiff arrived at the OLOL emergency room, he claims his grandmother,

Leona Deemer (“Deemer”), advised several OLOL staff members that Plaintiff was deaf

and needed an interpreter.36 Deemer testified that she informed OLOL nursing staff that

Plaintiff could not understand many words written in English and would be unable to

understand some words at all.37

OLOL contends the morning after Plaintiff’s emergency admission, a hospital Care

Coordinator, John Deshotel (“Deshotel”), met with him in the hospital’s surgical trauma

unit.38 Deshotel recounts that Plaintiff’s grandmother was present during this meeting.39

In this meeting, Deshotel communicated with Plaintiff using ASL, which is Deshotel’s

second language.40 As he signed, Deshotel also verbally spoke the words he was signing

through ASL to Plaintiff.41 Deshotel attested that, during this meeting, he had no difficulty

communicating effectively with Plaintiff; he was able to clearly understand the information

Plaintiff conveyed to him; and Plaintiff responded appropriately to Deshotel’s

communications, indicating that Plaintiff understood the conversation.42

By declaration, Deshotel testified that, during this meeting, Deshotel introduced

himself to Plaintiff, explained that his name was John, and that he was the only “John” on

the unit, and explained to Plaintiff and Deemer that his role as a Care Coordinator was to

36 Deemer Depo. at 52:17-53:7; 54:5-18; 64:14-23.

37 Id. at 51:4-12.

38 Rec. Doc. No. 118-3, Deshotel Decl., ¶ 5.

39 Id.

40 Id. at ¶¶ 4, 6.

41 Id. at ¶ 6.

42 Id. at ¶ 7.

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ensure that Plaintiff knew that the hospital wanted to meet his needs throughout his

admission at the hospital and up to discharge.43 Deshotel verified demographic

information with Plaintiff, discussed the Victims of Crime Program available at the

hospital, and requested permission to submit his name to the program, among other

things.44

Notably, Deshotel testified that he asked Plaintiff if he needed any additional

services, and Plaintiff responded that he did not. Deshotel further explained to Plaintiff

that, should additional services be required, Plaintiff could ask for Deshotel, and he would

come meet with Plaintiff.45 Deshotel testified that neither Plaintiff nor his grandmother

requested a live interpreter at the conclusion of this meeting.46 Further, Deshotel testified

that, at no time during this meeting, did Plaintiff or his grandmother advise that Plaintiff

was having difficulty communicating with or understanding hospital staff.47

Nurse Allison Berry (“Berry”), who was assigned to Plaintiff on April 12, 2017,

testified that she introduced herself to Plaintiff using a whiteboard and that, in response

to her communications, Plaintiff “shook his head as if he understood the writing on the

board.”48 When Berry explained to Plaintiff, using the white board, that she was going to

administering a shot “in [his] belly … to prevent blood clots,” Plaintiff “showed

understanding for what was about to happen. He even grabbed his gown to pull it up so

that I could give the injection.”49

43 Id. at ¶¶ 8-9.

44 Id. at ¶ 9.

45 Id. at ¶ 10.

46 Id. at ¶¶ 11, 13.

47 Id. at ¶¶ 12, 14.

48 Rec. Doc. No. 118-4, Berry Depo., pp. 12:23–13:3-7.

49 Id. at 15:6–22.

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Nurse Katelyn Ferachi (“Ferachi”) was assigned to Plaintiff on April 15, and she

testified that she also used a whiteboard to communicate with Plaintiff, explaining to him

the assessment she was going to perform.50 In response, Plaintiff “nodded that he

understood.”51 Ferachi further testified that the nurses continued to use a whiteboard with

Plaintiff, and “he never gave any indication that he did not understand or that that was not

appropriate for him.”52 Ferachi explained that, when hospital staff used the whiteboard to

communicate with Plaintiff, “he did answer with either nonverbal cue or a written answer

on the board.”53

OLOL records indicate that, on April 15, Nurse Ashley Welsh noted the following:

Patient's visitor asked to speak to with me at 1530 this afternoon. She stated

that the iPad ASL interpreter app was not effective for the patient and that

he needs a person in the room to interpret when the doctors come to speak

with him. This was the first time I got this request and the patient's nurse

Katelyn O’ Connor states that it was the first time she got the request as

well. As soon as I left the patient's room I called the house managers to

request an interpreter. House manager Sonya spoke with Melodie Sparks

from Deaf Focus and set up an ASL interpreter to be in the patient's room

9am-11am tomorrow 4/16.54

OLOL argues that the Plaintiff’s request for additional services was quickly

accommodated, and OLOL offers evidence that, for the duration of the Plaintiff’s in-patient

care, some twenty-nine (29) days, an interpreter was provided to him on sixty-one (61)

separate occasions.55 Plaintiff was discharged from OLOL on May 18, 2017.56

50 Rec. Doc. No. 118-5, Ferachi Depo., 9:24—10:4.

51 Id. at 10:7–8.

52 Id. at 23:4–8.

53 Id. at 28:20–23.

54 (SEALED) Rec. Doc. No. 11-6, p. 4.

55 Rec. Doc. No. 118-7, Witter-Merithew Depo., 69:11-21.

56 (SEALED) Rec. Doc. No. 11-6, pp. 5-6.

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While Plaintiff acknowledges meeting with Deshotel, Plaintiff claims Deshotel has

no knowledge of Plaintiff’s interactions with any other OLOL staff because he only “briefly”

met with Plaintiff on April 12 and 17, 2017.57 During the April 12 meeting, Plaintiff claims

Deshotel did not offer him an interpreter, did not offer Plaintiff any auxiliary aids, and he

did not assess or document Plaintiff’s communication needs.58 Plaintiff had no further

interactions with Deshotel until April 17, 2017.59

Plaintiff testified that he was unable to write notes back to OLOL staff.60 On April

14, Paula Rodriguez (“Rodriguez”), a friend and advocate for Plaintiff, texted Alice

Battista, then-Civil Rights Coordinator at OLOL, advising that Plaintiff needed an

interpreter.61 Plaintiff also maintains his medical records demonstrate a wealth of notes

that communication with Plaintiff was limited.62

Plaintiff claims, despite his lack of understanding, OLOL staff continued to rely only

on notes written on a white board and a picture board to communicate with him.63 Plaintiff

testified that he could not understand many of the notes written to him by OLOL staff

because the messages were too complicated.64 Deemer, Plaintiff’s grandmother, says

that she observed several occasions when Plaintiff would “draw up his shoulder or flop

57 Plaintiff cites Rec. Doc. No. 118-6 at ¶ 5; however, this document is not the Deshotel Declaration but

Plaintiff’s medical records. To the extent Plaintiff intends to cite ¶ 5 of Deshotel’s Declaration, the Court

notes that this citation does not fully support Plaintiff’s proffered statement of fact: “On the morning of April

12, 2017, I met with Damion Francois while he was a patient at the hospital in its surgical trauma unit. Fr.

Francois is deaf. Fr. Francois’ grandmother was present in the patient’s room during this meeting.”

58 Rec. Doc. No. 118-6; Rec. Doc. No. 138, p. 40.

59 Plaintiff cites Rec. Doc. No. 138 (SEALED) at pp. 40 & 66; however, this exhibit does not contain a page

66, and the record of Dehotel’s contact with Plaintiff appears on page 62.

60 Francois Depo. 48:2-8.

61 Rec. Doc. No. 134-10, Rodriguez Depo. 52:19-53:2.

62 Rec. Doc. No. 138, pp. 40, 66.

63 Francois Depo. 48:2-25.

64 Id. at 47:3-23.

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his hands” to indicate that he didn’t understand a note written by a nurse.65

Plaintiff contends that OLOL staff confirms his lack of understanding. Nurse Berry

did not recall Plaintiff writing anything to her in English.66 Nurse Ferachi only recalled

Plaintiff writing the word “yes” in response to one of her notes.67 Plaintiff’s friend-advocate,

Rodriguez, testified that on April 15, 2017, Plaintiff did not understand that he was

paralyzed or what that meant, because he still believed he would have surgery to remove

the bullet, and he would be able to walk again thereafter.68 Plaintiff cites several pages

of his OLOL medical record, wherein OLOL staff members document that Plaintiff was

not able to communicate his medical history to OLOL medical staff and that

communication with him was “limited.”69 Indeed, Plaintiff’s medical records contain a note

that he is unable to read.70

The record demonstrates that Plaintiff’s physical therapy evaluation was

completed with the use of a whiteboard, and his occupational therapy evaluation was

completed with the use of a whitesboard and reliance on a friend to interpret.71 Plaintiff

admits that, by April 14, 2017, his condition was stable, and he was waiting in the trauma

unit until he could be transferred into the rehab unit.72 Rodriguez also testified that

Plaintiff was forced to play “catch up” about his medical condition and prognosis because

of the information he missed out on during the first five days after he was paralyzed.73

65 Deemer Depo. 79:10-21; 77:6-15.

66 Berry Depo. 15:11-25.

67 Ferachi Depo. 9:22-10:8.

68 Rodriguez Depo. 72:23-73:1-6.

69 Rec. Doc. No. 138 (SEALED), pp. 17, 21, 25, 42, 50, 54, 59, 62.

70 Id. at p. 4.

71 Id. at pp. 52-56.

72 Id. at 51; Ferachi Depo. at 11:5-16;

73 Rodriguez Depo. 72:15-22.

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Plaintiff also points to the notes of Dr. Malia Eischen from her meeting with Plaintiff and

his family on April 16, 2017, wherein Dr. Eischen expresses:

Patient's family and caregivers expressed concern that the patient was not

understanding communication that had previously been provided. He was

unclear about his diagnosis as well as his prognosis. He states that the

interpreter television provided on the unit is extremely difficult to understand

and he was unclear as to what was happening regarding his care.74

Thus, Plaintiff contends the only method of communication he was afforded to

learn that he was paralyzed and would never walk again prior to April 16, 2017 was

through notes written on a white board.75 Without an interpreter, Plaintiff claims he

experienced pain and suffering because he was unable to effectively communicate his

pain levels or understand why he was unable to urinate, and he did not understand the

medical procedure of inserting a catheter into his penis, causing him pain.76 Further,

Rodriguez claims she witnessed a nurse walk into Plaintiff’s room and administer a shot

into his stomach without any explanation or warning, causing Plaintiff obvious pain and

trauma.77

Plaintiff notes that OLOL’s Statement of Patient Rights establishes that patients

have a right to “[b]e informed of your health status and be involved in choices that affect

you” and “[b]e informed about the results of care, treatment and services so you can

participate in current and future healthcare choices.”78 Through its Statement of Patient

Rights, OLOL acknowledges that patients have a right to communicate about their

medical conditions and make decisions about their healthcare.79 Yet, Plaintiff was unable

74 Rec. Doc. No. 138 at p. 62.

75 Id. at 109:21-110:12.

76 Rec. Doc. No. 134-4, Francois Declaration ¶ 8.

77 Rodriguez dep. 87:5-24.

78 See https://ololrmc.com/patients-and-visitors/for-patients/patient-rights (last visited April 8, 2020).

79 Id.

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to understand his diagnosis and prognosis until he was provided with an interpreter on

April 16, 2017, five days after he was admitted to OLOL.80 Because Plaintiff was not

provided with accommodations that allowed him to effectively communicate with his

healthcare providers, Plaintiff claims OLOL failed to provide him the same patient rights

afforded to hearing patients solely on the basis of his disability.81

Plaintiff feels presently deterred from returning to OLOL hospital because he “felt

like the nurses and doctors at OLOL did not respect [his] desire for an interpreter.”82 Now,

Plaintiff is scared that if he returned to OLOL, his need for an in-person interpreter or VRI

would again not be respected.83

Plaintiff likens the facts of this case to those in Perez v. Doctor’s Hosp. at

Renaissance, Ltd.84 and Delano–Pyle v. Victoria Cty., Tex.85 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.86 The plaintiffs were both deaf

individuals who relied on ASL to communicate.87 At summary judgment, they presented

evidence that the defendant hospital “repeatedly failed to provide them an interpreter” on

18 occasions over this period.88 One plaintiff testified that sometimes the “nurses would

say no” when an interpreter was requested.89 When an interpreter was provided, the

plaintiffs testified they would sometimes have to wait “upwards of a full day” for the

80 See Rodriguez depo. 72:23-73:6; (SEALED) Exhibit “A” at p. 62.

81 Id. at 72:15-73:6; 109:6-20.

82 Francois Declaration ¶¶ 9-10.

83 Id. at ¶ 10.

84 624 Fed. Appx. 180 (5th Cir. 2015).

85 302 F.3d 567 (5th Cir. 2002).

86 Perez, 624 Fed. Appx. at 182.

87 Id.

88 Id. at 185.

89 Id.

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interpreter to arrive.90 The defendant occasionally attempted to use VRI to communicate

with the plaintiffs, but plaintiffs presented evidence that the VRI did not always function

properly.91

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.92 The officer

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

communication.93 When the plaintiff failed these tests, the officer Mirandized him.94 The

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

the officer wrote Miranda warnings on a blackboard.95 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.”96 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.97

Plaintiff also relies on the decision by the Eleventh Circuit in Silva v. Baptist Health

South Florida, Inc., wherein the court stated that the ADA focuses on “the equal

opportunity to participate in obtaining and utilizing services.”98 Plaintiff cites the following

90 Id. at 182.

91 Id.

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

93 Id.

94 Id. at 571.

95 Id.

96 Id.

97 Id. at 575-76.

98 856 F.3d 824, 834 (11th Cir. 2017).

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explanation by the Silva court as to the proper inquiry in a deaf-rights case brought against

a healthcare provider:

[L]imiting the required level of communication to that necessary to convey

the primary symptoms, a treatment plan, and discharge instructions may

still result in deaf patients receiving an unequal opportunity to participate in

healthcare services in comparison to non-disabled patients. When a

hearing (i.e., non-disabled) person goes to the hospital, that person is not

limited only to describing symptoms and receiving the treatment plan and

discharge instructions. The patient’s conversation with the doctor could, and

sometimes should, include a whole host of other topics, such as any prior

medical conditions and history, medications the patient is taking, lifestyle

and dietary habits, differential diagnoses, possible follow-up procedures

and tests, informed-consent issues, and side effects and costs of potential

courses of treatment. Because a non-disabled person has the benefit of this

expansive informational exchange, it is error to conclude on summary

judgment that the mere successful communication of the primary

symptoms, treatment plan, and discharge instructions is enough, as a

matter of law, to preclude liability under the ADA and RA.99

In light of the foregoing jurisprudence, Plaintiff maintains that a jury must evaluate

whether he was provided an equal opportunity to communicate regarding his medical

history and care in the same manner that such opportunity is available to hearing patients.

Further, Plaintiff argues that there is a genuine issue of material fact as to whether OLOL

committed intentional discrimination by choosing to not adequately accommodate his

disability and failing to ensure that the communication with him was as effective as

communications with others.

OLOL replies, attacking Plaintiff’s offered evidence as immaterial to the question

before the Court. OLOL contends that any dispute about the nature and extent of

Plaintiff’s understanding is not material because the issue is whether OLOL staff knew

Plaintiff was not understanding the communications and deliberately chose not to

99 Id. at 835.

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accommodate him. OLOL maintains that evidence probative of the Plaintiff’s actual

understanding rather than the state of mind of OLOL staff is immaterial. Moreover, OLOL

notes that Plaintiff testified that he never actually requested an interpreter during the

relevant time period (April 11 -April 15), and the Fifth Circuit has held that the law “does

not require clairvoyance;” rather; “the burden falls on the plaintiff ‘to specifically identify

the disability and resulting limitations,’ and to request an accommodation in ‘direct and

specific’ terms.”100

OLOL claims that Deemer’s testimony fails to carry Plaintiff’s burden, as well.

OLOL notes that Deemer could not identify to whom she made an interpreter request.101

OLOL contends Deemer also admitted that she never actually requested an interpreter

for Plaintiff; rather, she testified that she advised unknown OLOL staff that “he needed an

interpreter.”102 Even if Deemer made this request, it is well-settled in the law that simply

because a patient requests a live interpreter does not mean the healthcare provider is

always obliged to provide one. OLOL cites the Silva decision, also relied upon by Plaintiff,

wherein the Eleventh Circuit held that an on-site interpreter is not “necessary” in every

situation to ensure effective communication:103

That does not mean that deaf patients are entitled to an on-site interpreter

every time they ask for it. “The regulations do not require healthcare

providers to supply any and all auxiliary aids even if they are desired and

demanded.” “[C]onstruing the regulations in this manner would effectively

substitute ‘demanded’ auxiliary aid for ‘necessary’ auxiliary aid.” If effective

communication under the circumstances is achievable with something less

than an on-site interpreter, then the hospital is well within its ADA and RA

obligations to rely on other alternatives. Indeed, the implementing

regulations clarify that “the ultimate decision as to what measures to take

rests with” the hospital. And further, “[t]he type of auxiliary aid or service

100 Windham v. Harris Cty., Texas, 875 F.3d 229, 236–37 (5th Cir. 2017).

101 Deemer Depo, p. 54:11–21.

102 Id. at 64:17-20.

103Silva, 856 F.3d at 835.

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necessary to ensure effective communication will vary in accordance with”

several context-specific factors, including the “nature, length, and

complexity of the communication involved; and the context in which the

communication is taking place.”104

Thus, OLOL argues that the fact that Plaintiff’s grandmother may have requested an

interpreter upon Plaintiff’s admission is not evidence of deliberate indifference, as

healthcare providers are not required to meet this particular request where there are other

effective means of communication. Further, OLOL maintains that the undisputed

evidence in this case demonstrates that the OLOL nurses believed Plaintiff was

communicating effectively using written methods and that he never indicated to the

contrary. Indeed, Deemer testified that Plaintiff was often given a pencil and paper to

communicate with nurses, and he sometimes wrote responsive notes to those written to

him by OLOL staff.105

As for Plaintiff’s interaction with Deshotel, OLOL contends it remains undisputed

that Deshotel spoke with Plaintiff in his native and preferred language when he met with

Plaintiff the morning after his admission, and Plaintiff never requested an interpreter at

any time to any staff member. Further, this meeting occurred after Deemer allegedly

requested an interpreter from unidentified OLOL staff. Despite this, Plaintiff never asked

for one, never indicated a need for one, and never indicated a lack of understanding.

OLOL contends that, notwithstanding Plaintiff’s claim that he could not spell

“interpreter,” he could have very easily requested one during the meeting with Deshotel

or asked a nurse to meet with Deshotel for this purpose. Plaintiff admitted he can write a

question mark on a piece of paper to signify that he didn’t understand, but he never did

104 Id. at 835-836; see also, 28 C.F.R. §36.303(c)(1)(ii); Martin v. Halifax Healthcare Sys., Inc., 621 Fed.

Appx. 594, 601-602 (11th Cir. 2015).

105 Deemer Depo., Rec. Doc. No. 134-8, p. 51:13-20.

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so.106 He also admitted that he can type messages on his phone; yet he never typed out

a message indicating he could not understand, that he needed an interpreter, that he

wasn’t communicating, or anything else to signify that communications were not

effective.107

Importantly, argues OLOL, Plaintiff has failed to submit any summary judgment

evidence to controvert the fact that OLOL staff members believed he was communicating

effectively without an interpreter. That Plaintiff now claims he did not understand these

communications is not evidence that OLOL staff knew that he did not understand at the

time and intentionally discriminated against him by failing to adjust his accommodations.

Plaintiff’s claim of deliberate indifference is undermined by the fact that, as soon as a lack

of understanding was communicated to OLOL (by Rodriguez), an interpreter was

immediately provided and continued to be provided on 61 separate occasions over the

course of the following 29 days.108

As for Plaintiff’s medical records, which Plaintiff contends are “replete” with

notations that his communication was limited, OLOL notes that most of the citations

actually reveal that the hospital was able to communicate with Plaintiff to assess his vitals

and examine his condition. Further, as to Plaintiff’s reliance on Dr. Eischen’s notes from

meeting with Plaintiff and his family on April 16, 2017, OLOL maintains that this

communication happened in the presence of an interpreter, and although it acknowledges

that Plaintiff and his family expressed communication concerns on this date, it does not

106 Francois Depo., 51:13-20.

107 Id. at 20:4-22.

108 Witter-Merithew Depo at 69:11-21.

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establish that any OLOL staff members were aware of these concerns prior to

Rodriguez’s request for an interpreter. OLOL avers that:

The reality is that, as soon as OLOL was made aware that plaintiff was

having difficulty communicating, interpreters were provided. Again, it is

simply not enough for plaintiff to show that he did not understand his care—

he must also show that OLOL was aware of that inability to understand and

took no action. Because plaintiff has not provided any evidence to make

such a showing, summary judgment is appropriate.109

IV. ANALYSIS

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 Plaintiff has failed to offer summary judgment evidence creating a genuine dispute of

material fact in this case.

Plaintiff relies heavily on the testimony of his grandmother, Louise Deemer.

However, a close review of her testimony does not carry Plaintiff’s burden of coming

forward with summary judgment evidence which shows that OLOL knew that Plaintiff was

not understanding the communications. Deemer testified that she requested a sign

language interpreter on Plaintiff’s behalf when he was in the Emergency Room. When

asked if she recalled Plaintiff exchanging written messages with OLOL staff, Deemer

recalled: “I remember there was a point when they would get the paper and pencil for him

to write messages to them, and they write messages to him. And I explained to them that

he couldn’t understand a lot of words you write, big words, he wasn’t going to understand

it. A lot of words you write he wasn’t going to understand it, period.”110 However, she

acknowledged that Plaintiff would “sometimes” write notes back to the nurses when they

109 Rec. Doc. No. 144, p. 12.

110 Deemer Depo at 51:6-12.

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wrote notes to Plaintiff.111 At one point during her deposition, Deemer acknowledged that

that she was confusing some of her responses with care provided to Plaintiff by a different

hospital on a different date.112

Deemer did testify that “before he even got to the hospital,” she asked “the driver

of the ambulance … and the crew” for an interpreter, and upon arrival at the hospital, she

advised “the lady at the desk” in the emergency room that Plaintiff “was speech and

hearing impaired, and he needed an interpreter.”113 Deemer also testified that she saw

“the doctor” as they were taking Plaintiff into the emergency room, and she “told them he

needs an interpreter.”114

When asked if “there was ever a time at Our Lady of the Lake Hospital where you

asked for any type of service and somebody told you ‘no,’” Deemer responded “No, I ain’t

never asked for no type of service.”115 Deemer further testified with respect to her alleged

request for an interpreter: “I didn’t ask them for it. I let them know that he needed – he

needed an interpreter …. They didn’t say ‘no,’ but by the same token, they didn’t provide

one at that time.”116 Deemer also testified that, on certain occasions where she attempted

to explain notes from nurses to Plaintiff, she advised the nurses, “he is not understanding

this.”117

Viewing Deemer’s testimony in a light most favorable to the Plaintiff, and accepting

that Deemer requested an interpreter, the Court finds that, as a matter of law (discussed

111 Id. at 51:18-20.

112 Id. at 52:1-9.

113 Id. at 53:2-11.

114 Id. at 54:5-8.

115 Id. at 64:9-13.

116 Id. at 64:18-23.

117 Id. at 77:12-14.

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extensively above) a healthcare provider is not required to immediately provide an

interpreter, even where one is requested, where the provider believes effective

communication is taking place via other means. Further, under the applicable

jurisprudence, a hospital is not “more than deliberately indifferent” to a deaf patient’s

disability where the plaintiff appears to be understanding or is aided in understanding by

loved ones. Thus, to the extent Deemer or other family members received staff notes,

advised that Plaintiff could not understand them, and then translated for Plaintiff in a

manner he could understand, it is not intentional discrimination for OLOL staff to believe

that this method constituted effective communication.118

In his Opposition, Plaintiff repeatedly refers to his meetings with Deshotel as

“brief,” however, this does not undermine the undisputed testimony that both Plaintiff and

Deemer were present for this meeting, that Deshotel offered to accommodate Plaintiff in

any way requested, and he advised Plaintiff that he could ask for him at any time if he

needed anything. Neither Deemer nor Plaintiff used this opportunity, while

communicating in ASL, to request an interpreter, nor did Plaintiff request to speak to

Deshotel over the next four days to advise that he was not communicating effectively. It

is notable that Deemer did not reiterate a request for an interpreter on Plaintiff’s behalf

during the Deshotel meeting. Further, even if Deshotel did not offer an interpreter during

this meeting, that does not constitute discrimination. The law requires that a plaintiff

clearly request an accommodation; it is not to be assumed by the hospital. It is also

118 Specifically, Deemer testified about a nurse’s note - that she believed Plaintiff did not understand –

advised Plaintiff that he needed to be turned two or three times a day. Yet, she indicated that Plaintiff knew

he needed to be turned, “he just didn’t want to be turned.” Deemer Depo at 77:15-25. Thus, Deemer

inconsistently testifies that Plaintiff didn’t understand that he needed to be turned, then immediately testifies

that he understood that he needed to be turned, but simply did not want to be turned.

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undisputed that Deshotel advised Plaintiff to ask for him at any time he felt he needed

anything at all. This does not constitute “something more than” deliberate indifference.

The expert testimony submitted by Plaintiff is unavailing to the issue at hand. An

expert’s opinion that Plaintiff could not have understood OLOL’s communications with

him is not evidence that OLOL was aware that he was not understanding.

The Court disagrees with the Plaintiff’s characterization that Plaintiff’s medical

records are “replete” with notes indicative of ineffective communication. A careful review

of the summary judgment evidence does substantiate this argument. Plaintiff cites to

page 4 of the Plaintiff’s en globo medical records,119 wherein it is noted that “Student is

deaf and uses sign language but no other family members sign. Student cannot read, so

communication is difficult.”120 However, this note was entered “as of 4/18/2017,” after

OLOL was made aware of the communication deficiencies and two days after OLOL

provided an interpreter to Plaintiff for the remainder of his hospitalization. Plaintiff also

cites to the following pages from his medical records as supporting evidence: 17, 21, 25,

42, 50, 54, 59, and 62.121 Pages 17, 21 and 25 are each dated 4/11/2017 at 8:43 PM,

and each notes “Pt is deaf and mute so hx is limited.” These are duplicates, not separate

chart entries, as Plaintiff seems to suggest, and while this chart note explains the reason

for a limited patient history, the note is not evidence of knowledge that communication of

healthcare information to the Plaintiff was ineffective. Likewise, page 42, dated

4/13/2017 at 8:26 AM, notes “Pt deaf and mute, history is limited by communication.”

Page 50, dated 4/14/2017 at 7:28 AM, notes “Patient in bed communicating with dry erase

119 (SEALED) Rec. Doc. No. 138.

120 Rec. Doc. No. 138, p. 4.

121 Rec. Doc. No. 134, p. 17 n. 56.

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board and sign language through family member at bedside. History limited by

communication.” This note demonstrates that, although Plaintiff’s medical history is

limited by communication, in the understanding of the Physician Assistant examining

Plaintiff, he was effectively communicating by writing and family member translation.

Page 54, dated 4/14/2017 at 9:12 AM, notes “pt mobility limited secondary to …

communication barriers,” but also notes: “Upon completion of treatment, patient

remained in bed in left sidelying with wedge with call bell in reach and all current needs

addressed. Instructed grandmother and friend to move his feet and bend his knees for

him throughout the day.” Page 59, dated 4/15/2017 at 4:46 PM, notes: “Patient in bed

communicating with use of dry erase board as he is deaf and mute, history limited due to

communication.” Finally, Page 62, dated 4/16/2017 at 11:38 AM, as noted by Dr. Eischen,

states:

Long discussion regarding patient's current care prognosis and discharge

planning held in the presence of an interpreter.

Patient's family and caregivers expressed concern that the patient was not

understanding communication that had previously been provided. He was

unclear about his diagnosis as well as his prognosis. He states that the

interpreter television provided on the unit is extremely difficult to understand

and he was unclear as to what was happening regarding his care.

I explained to the patient his injury and his prognosis regarding his bilateral

lower extremity paralysis secondary to his GSW. We discussed pain control

as well as long-term plans. I informed him that he would likely require rehab

and that would be determined based on PT/OT evaluations as well as input

from case management. All questions were answered and the patient

demonstrated understanding of his current condition and prognosis. I

emphasized the importance of the patient expressing his concerns as well

as his misunderstanding of information so that we can communicate more

effectively.

The family is requesting interpreter services be available at scheduled

intervals in order for the patient to communicate his needs appropriately.

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Time spent: 80 minutes in counseling with the patient, his family, and

caregivers, as well as coordinating further care and communication.

Notably, not cited by Plaintiff, Page 29, dated 4/11/2017 at 10:06 PM, notes: “Pt is

deaf and mute. Hx was obtained by writing questions and interviewing grandmother.”

This note demonstrates that Plaintiff’s medical history was effectively obtained via these

methods of communication. This medical record evidence shows that, although the

hospital’s ability to obtain a thorough medical history was limited by plaintiff’s muteness,

the barrier was overcome by “writing questions and interviewing grandmother.”

Furthermore, the chart notes are not evidence that the Plaintiff lacked understanding of

the communications about his care and treatment that were directed to him. Finally,

Plaintiff’s reliance on Dr. Eischen’s notes is misplaced. The Court finds that Dr. Eischen’s

notes undermine a claim of “more than deliberate indifference,” as it acknowledges that,

as of 4/16/17, OLOL was aware of prior communication deficiencies, and Dr. Eischen

spent 80 minutes with Plaintiff and his family outlining steps to be taken to adequately

accommodate Plaintiff’s communication needs. Importantly, this meeting took place in

the presence of an interpreter, and it is dated after Rodriguez advised OLOL staff that

Plaintiff was not understanding his treatment/prognosis and after she explicitly requested

an interpreter.

In summary, Plaintiff was admitted on April 11, 2017 for emergent care due to a

serious gunshot wound that ultimately left him paralyzed. Following admission, he

immediately underwent emergency surgery. The next day on April 12, Plaintiff and his

hearing grandmother met with OLOL Patient Care Coordinator, John Deshotel, who

communicated with the Plaintiff in ASL. Neither Plaintiff nor his grandmother requested

an ASL interpreter at the meeting with Deshotel. On April 14 and/or 15, Plaintiff’s friend

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and advocate requested an interpreter for Plaintiff. On April 16, at 11:38 a.m., Dr. Eischen

met with the Plaintiff and his family for 80 minutes, and with the aid of an interpreter,

“explained to the patient his injury and his prognosis.” From that point on, for the 29-day

remaining duration of the Plaintiff’s in-patient care, the hospital provided an interpreter.

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, notwithstanding Plaintiff’s actual

understanding at the time, the uncontroverted record demonstrates that OLOL staff made

good faith efforts to accommodate Plaintiff and believed that communication via written

messages and family assistance was effective, especially considering Plaintiff never

indicated a lack of understanding or requested an interpreter or to meet with Deshotel.

While the evidence may demonstrate negligence or carelessness on the part of OLOL

staff, as discussed in Rosario, there is no summary evidence before the Court that OLOL

made a “deliberate” or “purposeful” choice to intentionally discriminate against the Plaintiff

because of his disability.

The Court sees little resemblance in the facts of this case to 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

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

requesting an interpreter.123 Consistent with hospital policy, the treating nurse provided

the plaintiff with an iPad to communicate with the plaintiff through VRI.124 However, the

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

picture would freeze or become pixelated; or the picture would disappear altogether.125

This was the first time the plaintiff had ever used VRI to communicate.126 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.127 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.128 The nurse apologized to the plaintiff, advised that a live interpreter

was unavailable, and continued to communicate with the plaintiff via VRI.129

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

all via VRI, which occasionally worked.130 Although the VRI worked during the discharge

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

122 2019 WL 1766983 at *1.

123 Id.

124 Id. at *2.

125 Id.

126 Id.

127 Id.

128 Id. at *3.

129 Id.

130 Id.

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or what medications she should take.131 When the plaintiff returned home, she was not

compliant with medications because she did not fully understand the accompanying

instructions.132 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

necessary to ensure effective communication.133 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.”134 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.”135 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,’”136 the court

131 Id.

132 Id.

133 Id. at *4.

134 Id. at *6.

135 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))).

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

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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.”137 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

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

facts that dispute Reitz’s testimony about this phone call.138

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.”139

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

medical condition when she presented to the ER. 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.140

137 Id.

138 Id.

139 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”)).

140 Id.

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

that she was unable to understand the VRI communications.141 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”).142

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,

141 Id.

142 Id.

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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

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.

Accordingly, the Court shall grant summary judgment and dismiss the Plaintiff’s

RA and ACA claims.

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.143 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.144 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

143 Rec. Doc. No. 1, pp. 18-19.

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

Document Number: 60914  31

[the alleged barrier] actually affects his activities in some concrete way.”145 Because the

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

E. Purported Contract Claims

Plaintiff argues that he may pursue damages for bodily Injury and pain and

suffering, and damages for denial of self-determination under the RA and ACA via the

Restatement (Second) of Contracts and Louisiana contract law. OLOL counters that

Plaintiff has not pled a claim for battery or any other physical injury in the Complaint or

Amended Complaint, nor has he pled any physical pain whatsoever. Thus, Plaintiff

cannot now seek to recover for such a cause of action. “[I]t is axiomatic that a complaint

cannot be amended by briefs in opposition to a motion to dismiss.”146 Because these

claims are not properly alleged in this matter, the Court need not consider them as such

for purposes of this Ruling.

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

146 Becnel v. St. Charles Par. Sheriff's Office, No. 15-1011, 2015 WL 5665060, at *1 n.3 (E.D. La. Sept. 24,

2015) (quoting In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011)

(collecting cases)). Because a Rule 12(b)(6) motion tasks the Court with “assess[ing] the legal sufficiency

of the complaint,” a court should not consider allegations that appear for the first time in plaintiffs' briefing.

Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir.

2012).

Document Number: 60914  32

V. CONCLUSION

For the reasons set forth above, OLOL’s Motion for Summary Judgment147 is

GRANTED. Plaintiff’s claims are dismissed with prejudice. All pending Motions in Limine

are hereby DENIED as MOOT.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this October 14, 2020.

S

____________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

147 Rec. Doc. No. 118.

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