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Levesque v. Cvph Medical Center

United States District Court, N.D. New York

March 5, 2014

ANDRE R. LEVESQUE, Plaintiff,
v.
CVPH MEDICAL CENTER, Defendant.

Andre R. Levesque Plaintiff pro se, Plattsburgh, New York.

Justin R. Meyer, Esq. Stafford, Owens Law Firm Plattsburgh, New York, Attorneys for Defendant.

REPORT-RECOMMENDATION AND ORDER[1]

CHRISTIAN F HUMMEL, Magistrate Judge.

Plaintiff pro se Andre R. Levesque ("Levesque"), brings this action pursuant to Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq, alleging defendant Champlain Valley Physicians Hospital Medical Center ("CVPH") discriminated against him by failing to accommodate a medical condition afflicting Levesque. Am. Compl. (Dkt. No. 19). Presently pending is CVPH's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. No. 87. Levesque opposes the instant motion. Dkt. Nos. 91, 95, 98. CVPH replied to Levesque's opposition. Dkt. Nos. 93, 99. For the following reasons, it is recommended that defendant's motion be denied.

I. Background

The facts are related herein in the light most favorable to Levesque as the non-moving party. See subsection II(A) infra.

Levesque suffers from Epidermolysis Bullosa Simplex ("EBS"), a rare medical condition which can result in progressive pain, discomfort, skin blistering, impaired healing ability, and other similar harm. Am. Compl. at 3, 24, 29. Levesque explains that his condition is exacerbated by contact with hard surfaces and coarse fabrics because the layers of his skin will separate with little or no trauma. Id. at 3, 38, 41.

Levesque was brought to CVPH.[2] See generally Am. Compl. Assuming all factual allegations as true, Levesque had previously been treated at CVPH on at least one occasion, during which time he informed CVPH of his condition. Id. at 8, 21; Suppl. Am. Compl. (Dkt. No. 44-1) at 1. Staff members at CVPH refused to accommodate Levesque's medical condition after requests for clothing items and shoes were made.[3] Am. Compl. at 12-15, 21-25, 31, 36-38, 41-42, 46. The requested items would have helped to mitigate the injury incurred by Levesque. Id. at 3, 10, 12-15, 21-25, 31, 36-38, 41-42, 46.

As a result of inadequate clothing and footwear, Levesque developed five sores on the bottom of his feet which took over a month to heal. Am. Compl. at 21, 24-25, 29. During Levesque's stay, the inappropriate clothing led to uncomfortable fluctuations in body temperature. Id. at 24.

II. Discussion

Viewing the allegations in the light most favorable to the plaintiff, Levesque contends that defendant violated his rights under the ADA when they knowingly refused to accommodate his medical condition which resulted in Levesque sustaining injuries.

CVPH moves to dismiss on the grounds that (1) it is not a state actor for 42 U.S.C. § 1983 purposes, (2) Levesque has failed to sufficiently plead a claim under Title III of the ADA and (3) even if Levesque has successfully pleaded a claim under Title III of the ADA, it would be moot as Levesque is no longer a patient at CVPH.

A. Legal Standard

Under Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." When considering such a motion, a court must "construe plaintiff['s] complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiff['s] favor." Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009) (quoting Holmes v. Grubman, 568 F.3d 329, 335 (2d. Cir 2009)). However, this "tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not ...


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