United States District Court, Northern District of New York
July 2, 2001
NAVELLA CONSTANCE AND VERNAL CONSTANCE, PLAINTIFFS,
STATE UNIVERSITY OF NEW YORK HEALTH SCIENCE CENTER AT SYRACUSE DEFENDANT.
The opinion of the court was delivered by: Scullin, Chief Judge
MEMORANDUM — DECISION AND ORDER
Plaintiffs, Vernal and Navella Constance, bring this action against
Defendant State University of New York Health Science Center ("Hospital"
or "SUNY HSC"), alleging that the Hospital failed to provide them with a
sign language interpreter in violation of Title II of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12131, and § 504 of the
Rehabilitation Act ("Rehabilitation Act"), 29 U.S.C. § 794.*fn2 They
seek declaratory and injunctive relief along with damages.*fn3
Plaintiffs are husband and wife. Mrs. Constance was brought to
Defendant's facility in Syracuse for emergency medical treatment on May
18, 1996. Mr. Constance remained by her side much of the
According to Plaintiffs' complaint, they both informed hospital officials
that they were deaf and needed an interpreter. No interpreter was
The Hospital claims that it had, and still does have, in place a
detailed written policy outlining how to provide hearing impaired
patients equal and effective access to the Hospital. Pursuant to that
policy, the Hospital informs the patient that, while friends or relatives
are not expected to interpret, they may assist, on a voluntary basis, in
emergency situations. If the patient desires a professional
interpreter, as was the case here, the Hospital contacts an independent
agency to obtain one.
In the instant case, the Hospital maintains that within thirty minutes
of Plaintiffs' arrival social worker Mark Buttiglieri requested an
interpreter from the Aurora agency to assist Plaintiffs in their
communications with Hospital staff. See Affidavit of Mark Buttiglieri,
sworn to June 12, 2000, at ¶ 6. While waiting for the interpreter to
arrive, a respiratory therapist, Mary McCoy, with some finger spelling
skills attempted to assist Plaintiffs. See Deposition of Mary McCoy,
sworn to Jan. 25, 2000, at 6-8, 17. Ms. McCoy stopped assisting
Plaintiffs when one of their friends, Reverend Nagel, arrived and proved
to be more proficient at signing. See id. at 16. The Hospital asserts
that Reverend Nagel served as an interpreter for Plaintiffs. Yet,
Plaintiffs and the Reverend maintain that she never acted as an
interpreter and merely assisted Mrs. Constance in a limited capacity.
Mrs. Constance was kept overnight for observation. In the morning, a
physician examined her with the assistance of a hospital staff member
named Tony, who was taking sign language courses.*fn4 See Deposition of
Navella Constance, sworn to Jan. 21, 2000 ("Navella Dep."), at 28.
Subsequent to Mrs. Constance's discharge on May 19, 1996, Plaintiffs
filed an administrative complaint with the New York State Department of
Health ("DOH"). Thst agency substantiated Plaintiffs' allegations and
sent Defendant a statement of deficiencies for which a plan of correction
had to be submitted.
On June 15, 1999, this Court denied Defendant's motion to dismiss,
brought pursuant to Rule 12 of the Federal Rules of Civil Procedure. The
Court allowed Plaintiffs thirty days to amend their complaint to allege
that they are likely to seek medical services at the Hospital in the
future. The Court also found that the complaint, on its face, stated a
claim of intentional discrimination.*fn5 See Order, dated June 15,
1999, at 4-7.
Presently, before the Court is Defendant's motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court
heard oral argument in support of, and in opposition to, this motion on
March 16, 2001. At that time, the Court reserved decision. The following
constitutes the Court's determination of Defendant's motion.
A. Standing to seek injunctive relief
In order for a plaintiff to have standing to seek relief from a federal
court, that plaintiff must satisfy three elements: (1) an injury in
fact, (2) a causal connection between that injury and the conduct
complained of, and (3) a likelihood, not a mere possibility, that the
injury will be redressed only if the relief is granted.
See, e.g., Lujan
v. Defenders of Wildlife, 504 U.S. 555
, 560-61 (1992). When a plaintiff
seeks injunctive relief she must "show more than `past exposure to
illegal conduct;' [she] must show a `real and immediate threat of
repeated injury.'" Freydel v. New York Hosp., No. 97 CIV. 7926, 2000 WL
10264, *2 (S.D.N.Y. Jan. 4, 2000) (quoting City of Los Angeles v. Lyons,
461 U.S. 95
, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal
quotation omitted)). In short, a plaintiff must "allege a future
encounter with the defendant which is likely to lead to a similar
violation of some protected right." Id. (citing [Lyons, 461 U.S.] at
A recent case in the Southern District of New York presented issues
similar to those currently before the Court. See Freydel, 2000 WL
10264. In that case, the court found that the plaintiff lacked standing
to seek injunctive relief.*fn6 The plaintiff argued for standing based
on the existence of a chronic condition and the fact that the defendant
hospital was part of a medical network to which she belonged. The court
found that this was not enough since "[o]ne visit to a hospital does not
establish that [the plaintiff] is likely to again find herself seeking
treatment at [the defendant hospital]." Id., 2000 WL 10264, at * 3. The
court determined that the plaintiff had failed to produce evidence of a
likely future encounter. See id.
In Freydel, the court noted that the Southern District had previously
held that a deaf patient who had visited a hospital four times in the
past did not establish a likelihood of a future visit. See id. (citing
Naiman v. New York Univ., [No. 95 CIV. 6469, 1997 WL 249970, *5
(S.D.N.Y. May 13, 1997)]. Other cases also seem to require a substantial
showing before determining that future encounters are likely. In
Schroedel v. New York Univ. Med. Ctr., 885 F. Supp. 594 (S.D.N.Y. 1995),
the court found that since the defendant hospital was not the closest
hospital to the plaintiff's home, the plaintiff had only sought treatment
there on just one prior occasion, and had indeed used other medical
facilities when the need arose, the plaintiff had failed to show a real
and immediate threat of future injury.*fn7 See id. at 599.
In the instant case, Plaintiffs assert that there is a likelihood that
they will return to SUNY HSC in the future.*fn8
See Navella Dep. at 24.
Plaintiffs allege they travel to the Syracuse area several times a year
and argue that it is likely Mrs. Constance may experience another
emergency while in
Syracuse. See id. at 7. Plaintiffs also maintain
that while Mrs. Constance's cancer treatment is over for the time being,
her cancer may recur and, since Defendant Hospital is a cancer treatment
center, it is likely she will elect to seek treatment at SUNY HSC. See
Affidavit of Navella Constance, sworn to Nov. 17, 2000, at ¶ 12.
Plaintiffs' arguments are conclusory and do not have a factual basis.
In the past, Mrs. Constance received treatment for cancer at a hospital
in Watertown, New York. In fact, she has never utilized the services at
Defendant Hospital prior to or since the incident giving rise to this
action.*fn9 See Navella Dep. at 35-41. It would be speculative to
assume that Mrs. Constance will again suffer a medical emergency while in
Syracuse and would again be transported to SUNY HSC for treatment.
Furthermore, in light of Mrs. Constance's choice to seek treatment for
her cancer with her oncologist in Watertown, it is speculative to assume
that should her cancer return she would decide to seek treatment at
Defendant's facilities. In sum, Plaintiffs have at most shown a mere
possibility of a return visit to Defendant Hospital, not a "likelihood."
See Lujan, 504 U.S. at 560-61.
Drawing all inferences in favor of Plaintiffs, the record does not
support a finding that Plaintiffs are likely to seek treatment at the
Hospital in the future. Plaintiffs have failed to demonstrate that they
face a real and immediate threat of future injury and, therefore, they
lack standing to pursue injunctive relief. Accordingly, the Court grants
Defendant's motion for summary judgment with respect to Plaintiffs' claim
for injunctive relief.*fn10
B. Plaintiffs' ADA and Rehabilitation Act claims
To establish a claim for damages under the ADA or the Rehabilitation
Act a plaintiff must show that a defendant is guilty of intentionally
discriminating. See Freydel, 2000 WL 10264, at *4 (citing Bartlett v.
New York Bd. of Bar Examiners, 156 F.3d 321 (2d Cir. 1998), judgment
vacated on other grounds and remanded, ___ U.S. ___, 119 S.Ct. 2388, 144
L.Ed.2d 790, 67 U.S.LW. 3528 (1999)). Intentional discrimination against
the disabled does not require a showing of animosity or ill will but
rather may be inferred when "a `policymaker act[s] with at least
deliberate indifference to the strong likelihood that a violation of
federally protected rights will result. . . .'" Id. (citing [Bartlett,
156 F.3d] at 331 (citations and internal quotation marks omitted))
In the instant case, Defendant asserts that "[a]t worst, [P]laintiffs
can demonstrate an inadvertent administrative lapse at SUNY HSC." See
Def.'s Memorandum of Law at 21. This administrative lapse occurred when
hospital staff failed to follow up with Aurora when the requested
interpreter failed to appear. Defendant argues that it adhered to its
policy when it made such a request and that its actions do not show
deliberate indifference to Plaintiffs' condition. Here too, the Freydel
decision is instructive. In Freydel, the court found that the plaintiff
had failed to establish that the defendant had acted with deliberate
indifference to the likelihood of a violation of
the plaintiff's rights.
See id. The court focused on the fact that, in response to both of the
plaintiff's requests, hospital staff attempted to secure interpreter
services. See id. The court noted that "[a]lleging requests for
translation services, even when repeated over several days, does not by
itself suffice to maintain a claim of intentional discrimination. A
plaintiff must also show that the institution remained deliberately
indifferent to the likely violation of protected rights."*fn11 Id., 2000
WL 10264, at *5 (citing Bartlett, 156 F.3d at 331).
In the instant case, however, Plaintiffs attempt to distinguish
Freydel. They argue that "a mere attempt to obtain effective
communication, by itself, does not necessarily negate a holding of
discriminatory intent." See Pls.' Memorandum of Law at 24. They claim
that the Court must look to the totality of the circumstances to
determine whether Defendant acted with deliberate indifference. See,
e.g., Bravin v. Mount Sinai Med. Ctr., 58 F. Supp.2d 269, 274 (S.D.N Y
1999). In this regard, Plaintiffs assert that discriminatory intent can
be inferred from the fact that the Hospital did not follow up with Aurora
when the requested interpreter failed to appear and further, that
Defendant's deficient policy and its reluctance to make meaningful
changes to that policy evince a discriminatory intent.*fn12
However, the Court finds the facts of this case to be very similar to
those in Freydel. As in Freydel, the Hospital very quickly responded to
Plaintiffs' request for an interpreter. Although the Hospital may have
been negligent for failing to follow up on that request, that failure
does not amount to deliberate indifference to Plaintiffs' rights. In
fact, the Hospital did attempt, albeit with disputed success, to have its
employees assist Plaintiffs in their communications with medical staff.
Accordingly, the Court grants Defendant's motion for summary judgment on
the issue of damages.
After carefully reviewing the file, the parties' submissions and oral
arguments and the relevant law, and for the reasons stated herein, it is
hereby ORDERED that Defendant's motion for summary judgment is GRANTED;
and it is further ORDERED that the Clerk of the Court enter judgment in
favor of Defendant and close this case.
IT IS SO ORDERED.
*fn2 Title II of the ADA and § 504 of the Rehabilitation Act require
that public entities and recipients of federal financial assistance
ensure "effective communication" with persons who are hearing impaired.
See, e.g., 28 C.F.R. § 35.160.
*fn3 Although the complaint included claims under the New York Human
Rights Law, New York Hospital Codes, Rules and Regulations and state tort
law, Plaintiffs have since withdrawn those claims.
*fn4 Mrs. Constance claims that these communication were ineffective and
did not enable her to communicate effectively with the medical staff. In
fact, she saw one note that led her to believe she had a heart attack.
See Navella Dep. at 24-25.
*fn5 The Court is now being asked to revisit this issue in light of
*fn6 When the parties submitted their motion papers to the Court,
Freydel was still pending before the Second Circuit. Since that time,
the Second Circuit has issued an unpublished opinion disposing of that
case. See Freydel v. New York Hosp., No. 00-7108, 2000 WL 1836755 (2d
Cir. Dec. 13, 2000). The Second Circuit, for reasons similar to those
offered by the district court, found that the plaintiff lacked standing
to seek injunctive relief. The court, while acknowledging that the
plaintiff "may" be referred to the defendant hospital in the future, found
that "such an indefinite speculation is insufficient to maintain standing
to seek injunctive relief." Id., 2000 WL 1836755, at * 6. The court
focused on the fact that other hospitals were closer to the plaintiff's
home and that she had no ties to the defendant hospital. See id.
*fn7 The court dismissed the plaintiff's claim for injunctive relief
with leave to amend to show that she faced a real and immediate threat of
future injury. See Schroedel, 885 F. Supp. at 600.
*fn8 In fact, Mrs. Constance still suffers from the same condition that
caused her visit to the Hospital in May of 1996. Between 1962 and 1982,
she suffered 20-30 fainting episodes and yet none of these brought her
into contact with Defendant. Defendant maintains that to find a
likelihood of a repeat visit to Defendant the Court would have to engage
in speculation. To the contrary, the United States Government in an
amicus brief argues that it is extremely likely that Plaintiffs will seek
future care at SUNY HSC.
*fn9 Mr. Constance has had no occasion to receive treatment at the
Hospital in the last twenty-five years. See Deposition of Vernal
Constance, sworn to Feb. 4, 2000, at 23-24.
*fn10 In light of the Court's conclusion, it need not consider whether
Plaintiffs, if they ever returned to Defendant again, would suffer
violations of their rights.
*fn11 In contrast, the court in Naiman found that the plaintiff's
allegation that he requested an interpreter along with the absence of any
claim by the defendant that it had attempted to provide one sufficiently
alleged intent to survive a motion to dismiss. See Naiman, 1997 WL
249970, at *5.
*fn12 Plaintiffs claim that the policy does not explicitly state who is
to make the call to request an interpreter and it fails to direct
personnel as to what steps to take when a requested interpreter fails to
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