United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STA'TES DISTRICT JUDGE
the Court is a Motion to Dismiss (Rec. Doc.
10) filed by Defendants, Ochsner Health System and
Ochsner Medical Center - Westbank, L.L.C. (collectively,
“Ochsner”), Plaintiff Ronneka Smith's
(“Plaintiff”) opposition (Rec. Doc.
16), and Ochsner's reply (Rec. Doc.
23). Having considered the motion and legal
memoranda, the record, and the applicable law, the Court
finds that the motion should be GRANTED.
AND PROCEDURAL HISTORY
litigation arises from Ochsner's alleged disability
discrimination pursuant to Title III of the ADA (“Title
III”), Section 504 of the Rehabilitation Act
(“Section 504”), and Section 1557 of the
Affordable Care Act, 42 U.S.C. 18116 (“Section
1557”). Plaintiff is a deaf individual who visited
Ochsner for prenatal care on approximately fifteen occasions
between November 17, 2016 and June 14, 2017. Plaintiff
alleges that she received an in-person sign language
interpreter during approximately five visits, and she
received a video remote interpreter during approximately five
visits. Upon demand by Plaintiff's counsel, Ochsner also
provided a sign language interpreter during the delivery of
Plaintiff's child. Thereafter, Plaintiff alleges that an
Ochsner nurse scheduled an appointment with third-party
provider, Kid-Med Pediatric, but did not notify Kid-Med
Pediatric of Plaintiff's disability.
sued Ochsner in federal court on November 6, 2017. Plaintiff
alleges that Ochsner's failure to provide necessary
accommodations amounts to discriminatory treatment on the
basis of her disability, and she suffered “humiliation,
fear, anxiety, emotional distress, isolation, segregation,
invasion of her civil rights, mental anguish, embarrassment,
and inconvenience” as a result. Plaintiff seeks (1) a
declaratory judgment that Ochsner's policies, procedures,
and practices have subjected Plaintiff to unlawful
discrimination in violation of Title III, Section 504, and
Section 1557; (2) an injunction forbidding Ochsner from
implementing or enforcing any policy, procedure, or practice
that denies deaf or hard of hearing individuals, or their
companions, meaningful access to and full and equal enjoyment
of Ochsner's facilities, services, or programs; (3) an
injunction ordering Ochsner to develop, implement,
promulgate, and comply with various policies concerning deaf
or hard of hearing patients; and (4) compensatory and nominal
damages pursuant to Section 504 and Section 1557, reasonable
costs and attorneys' fees pursuant to Title III, Section
504, and Section 1557, interest on all amounts at the highest
rates and from the earliest dates allowed by law, and any and
all other relief this Court finds appropriate.
February 22, 2018, Ochsner filed the instant Motion to
Dismiss for Failure to State a Claim, which Plaintiff
Ochsner argues that Plaintiff's claims should be
dismissed for failure to state a claim. (Rec. Doc. 10-1, at
5). Ochsner asserts that Plaintiff has not alleged any facts
demonstrating that Ochsner failed to provide Plaintiff with
auxiliary aids or services where necessary to ensure
effective communication, as is required in order to state a
claim under Title III, Section 504, and Section 1557. (Rec.
Doc. 10-1, at 7). Ochsner asserts that Plaintiff's
allegation that Kid-Med Pediatric failed to provide her with
auxiliary aids during a pediatric appointment does not
constitute discrimination by Ochsner. (Rec. Doc. 10-1, at 8).
Additionally, Ochsner asserts that Plaintiff fails to show
she is entitled to compensatory damages because she has not
demonstrated that Ochsner intentionally discriminated against
her. (Rec. Doc. 10-1, at 8).
Ochsner argues that Plaintiff's claims for injunctive and
declaratory relief must be dismissed for lack of standing
because Plaintiff fails to allege sufficient facts to show
there is a real and imminent threat of future harm. (Rec.
Doc. 10-1, at 8-10). Ochsner emphasizes that Plaintiff has
failed to allege any concrete, particularized, and credible
plan to return to Ochsner in the future. (Rec. Doc. 10-1, at
Plaintiff argues that she is entitled to seek compensatory
damages because Ochsner intentionally discriminated against
her by failing to consistently provide auxiliary aids and
services. (Rec. Doc. 16, at 11). Plaintiff asserts that
“[o]ne can infer a plausible claim of intentional
discrimination within Plaintiff's complaint through her
allegations that across approximately fifteen doctor's
appointments at the Defendant hospital, at approximately five
visits the Defendant failed to provide her necessary
auxiliary aids and services.” (Rec. Doc. 16, at 14).
Plaintiff avers that her claims are not defeated by her
alleged failure to request accommodations from Ochsner, as
Ochsner has an affirmative obligation to comply with Section
504. (Rec. Doc. 16, at 15).
Plaintiff argues that she has standing to seek injunctive
relief and has sufficiently alleged a real and imminent
threat of harm. (Rec. Doc. 16, at 16). Plaintiff asserts that
the ADA relieves a person from engaging in the “futile
gesture” of making plans to return if the person has
“actual notice” that the defendant does not
intend to comply with the ADA. (Rec. Doc. 16, at 17).
Additionally, Plaintiff alleges that she has standing
pursuant to the “Deterrent Effect” Test. (Rec.
Doc. 16, at 18). Plaintiff argues that the deterrent effect
of Ochsner's inconsistent provision of auxiliary aids and
services to Plaintiff is an “actual or imminent”
injury that is not conjectural or hypothetical. (Rec. Doc.
16, at 18). Alternatively, Plaintiff argues that she has
standing to seek injunctive relief because she has