United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
S. Cayer, United States Magistrate Judge
MATTER is before the Court on “Defendants'
Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6),
” Doc. 14, and the parties' associated briefs,
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1), and the Motion is now
ripe for consideration.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendant's Motion to Dismiss be granted as
PROCEDURAL AND FACTUAL BACKGROUND
the facts of the Amended Complaint as true, Plaintiff Neil
Basta is a deaf individual who communicates primarily in
American Sign Language (“ASL”). His wife Courtney
Basta is a hearing individual who was pregnant at the time of
these events. Defendant Novant Health maintains a written
policy for accommodating individuals with hearing
impairments. The policy, which is available to the public
We [Novant Health] believe that clear communication is one of
the most important ingredients of providing outstanding care.
If you or your family have special communication needs, we
offer free interpreter services, which include: Foreign
Language interpreters, Oral interpreters, TTY and other
services for deaf or hard of hearing individuals. When you
arrive at one of our Novant Health locations, if you or your
family need assistance from an interpreter, let our staff
Doc. 12 at ¶ 10.
to June 2, 2017, Plaintiff pre-registered with
Defendant's Huntersville Medical Center and requested
that a qualified in-person ASL interpreter be provided to him
upon his and his wife's arrival at the medical center. A
member of Defendants' staff assured Plaintiff that an ASL
interpreter would be provided once he notified Defendants
that he and his wife were en route to the Medical Center.
2, 2017, Plaintiff contacted Defendants using Video Relay
Services (VRS) and advised that his wife was having
contractions and they were en route to the Medical Center. He
requested an interpreter and a staff member advised that a
request would be placed once they arrived. Once at the
Medical Center, Plaintiff asked Defendants' staff several
times for an interpreter and was told they were working on
it. Plaintiff was provided with a Video Remote Interpreter
(VRI) after he and his wife were brought to the delivery
room. The VRI was not working properly. It was blurry, choppy
and did not have a clear enough picture to provide effective
communication for Plaintiff. A second VRI was brought into
the room but it also malfunctioned.
the VRIs malfunctioned and no interpreter was provided,
Plaintiff was not given the opportunity to ask questions
about his wife's treatment and was unaware if she had any
medical concerns. Throughout his wife's hospitalization,
Plaintiff made repeated requests for an interpreter, but
apart from the two VRI machines nothing was made available.
On June 4, 2017, staff gave discharge instructions without an
interpreter present. Plaintiff states that he “wishes
to seek care in Defendants' facilities again, but has
been deterred by the discrimination he has faced and expects
to face in the future.” Doc. 12 at p. 9.
filed his original Complaint in this Court on February 7,
2019. He filed an Amended Complaint on April 12, 2019. He
alleges violations of Title III of the Americans with
Disabilities Act, 42 U.S.C. § 12181, et seq.
(“ADA”), Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 (“RA”), and Section
1557 of the Patient Protection and Affordable Care Act, 42
U.S.C. § 18116 (“ACA”). Plaintiff seeks
prospective injunctive relief under the ADA and monetary
damages under the RA and the ACA.
filed the instant Motion to Dismiss on May 8, 2019 seeking
dismissal of all three counts of Plaintiff's Amended
Complaint. They argue that Plaintiff fails to allege imminent
harm to support a claim for injunctive relief under the ADA,
that he fails to sufficiently plead intentional
discrimination as required to state a claim under the RA, and
that he fails to allege that he himself was seeking medical
treatment as required to support a cause of action under the