Bone v. Univ. of N.C. Health Care Sys.

678 F.Supp.3d 660

John BONE, Timothy Miles, The National Federation of the Blind, Inc.,and Disability Rights North Carolina, Plaintiffs, v. UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM, Defendant.

1:18-cv-994

United States District Court, M.D. North Carolina

Signed June 22, 2023

Eve L. Hill, James O. Strawbridge, Chelsea J. Crawford, Jessica P. Weber, Brown, Goldstein & Levy, LLP, Baltimore, MD, Christopher A. Hodgson, Holly A. Stiles, Lisa Grafstein, Disability Rights North Carolina, Raleigh, NC, for Plaintiffs.

Brent F. Powell, UNC Health, Chapel Hill, NC, Kathryn Jean Thomas, Milind Kumar Dongre, North Carolina Department of Justice, Raleigh, NC, Philip A. Hinson, Kevin V. Parsons, Lewis Brisbois Bisgaard & Smith, Charlotte, NC, Robert T. Broughton, N. C. Department of Justice, Chapel Hill, NC, Melissa T. Daugherty, Lewis Brisbois Bisgaard & Smith, LLP, Los Angeles, CA, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge

With the damages claims of this case resolved, Plaintiffs Timothy Miles, the National Federation of the Blind, Inc. ("NFB"), and Disability Rights North Carolina ("DRNC") seek permanent injunctive relief under various federal disability statutes to remedy what they contend is the failure of Defendant University of North Carolina Health Care System ("UNCHCS") to provide Miles and nonparty Dr. Ricky Scott (a constituent of Plaintiff DRNC), both of whom are legally blind, with meaningfully accessible communications. Plaintiffs' requested relief is sweeping and seeks "significant reforms" across UNCHCS's entire network of owned and managed health care entities. (Doc. 151-1 at 17; see Doc. 163-1.) UNCHCS filed a response in opposition (Doc. 152), and Plaintiffs filed a reply (Doc. 153).

On December 14, 2022, the court heard oral argument on the motion. But because, on the day before the hearing, UNCHCS updated the record on the status of its efforts to provide services to sight-impaired patients, the court instructed the parties to meet and confer and to file a joint status report outlining their respective positions as to whether Plaintiffs maintained that a permanent injunction was still warranted in light of the changes to certain policies and practices that UNCHCS reported making during the course of this litigation. On January 30, 2023, the parties filed their joint status report, largely maintaining their earlier positions concerning the propriety of injunctive relief. (Doc. 163.) At that time, the parties agreed there was no need for trial or further evidentiary hearing and that the court could decide the merits of the case on the summary judgment record.

After extensively reviewing the voluminous record, the court determined that there were three discrete factual issues that needed further clarification. (See Doc. 165.) Thus, on May 1, 2023, the court again heard oral argument, limited to the already closed factual record, on those three issues.

After careful consideration of the complete record and for the reasons set forth below, Plaintiffs' motion for permanent injunction will be granted in part and denied in part.

I. BACKGROUND

A. Factual Background

The court finds the following facts based on the cross-motions for summary judgment (Docs. 103, 105, 107, 108, 111, 112, 113, 114, 120, 121), the uncontested facts, and other evidentiary filings submitted by the parties (Docs. 151, 152, 153, 162, 163).¹

1. Timothy Miles & Dr. Ricky Scott

Plaintiff Timothy Miles has been a patient at UNCHCS for over twenty years. (Doc. 103-4 ¶ 11.) He "routinely" visits UNCHCS clinics and plans to "continue" doing so in the future. (Id. ¶ 12.) At his deposition in February 2021, Miles testified that he visits five UNCHCS clinics with "some sort of regularity" (meaning at least once a year): UNCHCS's dermatology, endocrinology, nephrology, ophthalmology, and urology clinics. (Doc. 108-12 at 25-26.) Miles also frequents other UNCHCS clinics as well. Since March 2021 alone, Miles is or has been a patient of at least a dozen other UNCHCS providers: UNC Ophthalmology/Kittner Eye Center, UNC Urgent Care at Carolina Pointe II, UNC Otolaryngology ("ENT"), UNC Orthopedics, UNC Hospitals Emergency Department, UNC Hospitals Kidney Specialty and Transplant Clinic, UNC Hospitals Pulmonary Specialty Clinic, UNC Hospitals Endoscopy Center, UNC Hospitals Outpatient Center at Eastowne (Laboratory Services), UNC Hospitals Imaging Center, and UNC Hospitals Central Outpatient Pharmacy. (Doc. 151-3 ¶ 7.) Miles also stated in his most recent declaration that, just within the last several months, he has also visited three additional UNCHCS facilities: UNC Hospitals Pre-Procedure Services at Chapel Hill, UNC Hospitals Ambulatory Surgery Center, and UNC Allergy Eastowne. (Doc. 163-4 ¶¶ 8-9.) All told, according to Miles's counsel, he has made upwards of 100 trips to UNCHCS clinics in the past four years alone.

Miles is legally blind, his vision loss being "so significant that it is not fully correctable with prescription lenses." (Doc. 103-4 ¶ 3.) He describes his visual acuity range as falling between "20/30 to 20/400, ideally 20/100 in one, 20/400 or 20/300 to 20/400 in either eye." (Doc. 108-12 at 3.) Although his vision is generally stable (albeit at reduced visual acuity levels), sometimes it gets worse when Miles is particularly stressed, or when his blood sugar levels fluctuate due to his diabetes. (Id. at 3-4, 7.) Miles also suffers from a condition known as oculocutaneous albinism, which makes him extremely sensitive to light. (Doc. 103-4 ¶ 6; Doc. 108-12 at 3.) According to Miles, this condition "renders no pigment in the eyes[,]" which means that for him "bright light is severely diminishing" and causes pain. (Doc. 108-12 at 3.) To deal with these visual disabilities, Miles uses two different prescription glasses, one for distance and one for "up close." (Id. at 5.) He also frequently wears what he describes as "dark shades," which help mitigate his sensitivity to light. (Id. at 3, 5-6.) Miles says that the glasses bring him "a minimum amount of clarity." (Id. at 5.)

Even with prescription glasses, however, Miles cannot read standard print documents (Doc. 163-4 ¶ 4), though sometimes he uses a magnifying glass, which he carries with him everywhere for "where there's a need for a quick review of something."² (Doc. 108-12 at 42.) Miles can, however, read written material in large print. (Doc. 163-4 ¶ 5.) At one time, Miles could access size 16-point font, but in recent years he has experienced worsening eye strain and, as a result, "now require[s] a minimum size of 18-point font to access printed text," even with the aid of his prescription glasses. (Doc. 103-4 ¶ 8; see Doc. 108-12 at 5-6; Doc. 120-3 at 6 ("With the aid of prescription glasses, his visual acuity is measured around 20/150 for his right and left eyes.").) Sometimes, however, Miles requires size 24-point font or higher, but generally only when increased stress or high-blood sugar causes spots, or "floaters," that temporarily exacerbate his already blurred vision. (Doc. 108-12 at 36.) On occasions when Miles receives standard print documents at home - for example, credit-card bills he receives in the mail - he will not try to read them; instead, he will typically phone the relevant party to ask about the bill, though most of the time he "know[s]" the amount due, so "there's really not anything" for him to "look at" or "verify." (Id. at 11.) Other times, Miles will ask a friend or family member to come over to help him read something, even though he typically does not like other people having access to his "personal information." (Id. at 12.)

Miles also has a computer - which he sometimes uses to check emails, attend virtual meetings, and otherwise type or read documents - that is equipped with two accessible screen reading programs: JAWS Fusion and ZoomText. (Doc. 120-2 at 10-12.) JAWS Fusion (JAWS is an acronym for Job Access With Speech) is screen access software that reads aloud the text on a computer screen or iPhone and allows a user to edit documents much like the voice-dictation feature on a cell phone, such that JAWS Fusion "talks . . . types, [and] speaks out as you type." (Id. at 14.) ZoomText is a screen magnification program that allows the user "multiple levels of certain magnification," depending on the user's preference. (Id. at 12-14.)

According to Plaintiffs' counsel, Miles could (at least as of September 2018) "successfully navigate accessible websites using [this] screen-access software[.]" (Doc. 108-14 at 2.) More recently, however, he has expressed an aversion to reading electronic documents because his condition, ocular albinism, makes him extremely sensitive to light. (Doc. 151-3 ¶ 5.) Miles also uses an iPhone, which is equipped with a screen reading device called "VoiceOver." (Doc. 108-12 at 17-18.) His iPhone also has an "accessibility feature," which he sometimes uses, that allows him to "enhance" the font size, labels, icons, or other applications. (Id. at 18.) Finally, Miles has a standard printer at home. (Id. at 56-57.)

Like Miles, Dr. Ricky Scott is legally blind, a long-time patient of UNCHCS, and a DRNC constituent.³ (Doc. 151-4 ¶ 3-4; Doc. 151-1 at 6; Doc. 103-14 ¶ 4.) Dr. Scott routinely visits UNC Family Medicine West, "averaging two to three visits each year." (Doc. 151-4 ¶ 4.) He has also received services from Rex Laboratory Services at UNC Rex Hospital, where he "typically has lab work done . . . every couple of years." (Doc. 103-14 ¶ 5; see Doc. 151-4 ¶ 14.) Given the proximity to his home, Dr. Scott intends to return to both locations in the future. (Doc. 151-4 ¶ 14; see Doc. 103-14 ¶ 13.) He cannot "read printed materials," but he can "read documents in Braille or in accessible electronic formats that [he] can access on [his] computer using screen reader software, which converts written text to speech or to Braille on a refreshable Braille display." (Doc. 151-4 ¶ 3; see also Doc....