Reckley v. Goodman Grp.

PATRICIA RECKLEY, Plaintiff, v. THE GOODMAN GROUP, dba VILLAGE HEALTH CARE CENTER;DEE STRAUSS; TOSHUA KRUSHENSKY;ANNIE WAYLETT; DEANNA HARRIS, Defendants.

CV 19-119-M-KLD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

October 5, 2020

ORDER

Pro se Plaintiff Patricia Reckley brings this action against The Goodman Group, dba Village Health Care Center, and the individual Defendants alleging claims under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA") and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. This matter comes before the Court now on motions to dismiss for lack of subject matter jurisdiction and failure to state claim for relief pursuant to Federal Rule Civil Procedure 12(b)(1) and (6). (Docs. 17 and 19). In addition, Reckley moves for leave to file an amended complaint. (Doc. 41).

I. Background¹

On July 16, 2019, Reckley filed this action naming Village Health Care Center and its Executive Director Dee Strauss, Director of Nursing Toshua Krushensky, and Social Services Director Annie Waylett as defendants. Reckley also named Deanna Harris, a physical therapist now employed by Infinity Rehab,² as a defendant. (Doc. 2). Reckley alleged violations of the ADA, the Rehabilitation Act, the Civil Rights of Institutionalized Persons Act, the Nursing Home Reform Act, and the "resident rights" set forth in 42 C.F.R. § 483.10. (Doc. 2). Because Reckley is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915, the Court prescreened her Complaint and determined that she did not have a viable claim for relief under the Civil Rights of Institutionalized Persons Act, the Nursing Home Reform Act, and 42 C.F.R. § 483.10. The Court gave her until November 7, 2019 within which to address various pleading deficiencies related to her ADA and Rehabilitation Act claims, both of which survived the prescreening process. (Doc. 6).

On November 12, 2019, Reckley filed an amended pleading identifying The Goodman Group as The Village Health Care Center's parent company,³ and again alleging discrimination and retaliation claims against Defendants under the ADA and the Rehabilitation Act. (Doc. 9). The Village is a residential rehabilitation and long-term care facility, which receives federal funding through Medicare and Medicaid. (Doc. 9 at ¶¶ 5, 7). Reckley is a wheelchair-bound paraplegic who relies heavily on adaptive devices to complete basic activities of daily living, and has occupied a private room in the rehabilitation section at The Village since August 2017. (Doc. 9 at ¶¶ 5, 8). Reckley asserts there are only two rooms in The Village's rehabilitation section that can accommodate her functional needs, including the one she has occupied since August 2017, and none in the long-term care section. (Doc. 9 at 2).

Reckley alleges that between October 2018 and July 2019, staff members at The Village made three attempts to transfer her to a room in the long-term care section that did not have a wheelchair accessible bathroom, bed poles, and other adaptive equipment necessary to accommodate her functional needs. (Doc. 9 at ¶¶ 1, 5-6; Doc. 2 at 9). Reckley claims that Strauss directed her physical therapist,Harris, to choose a new room for Reckley, and that Harris did not allow her to examine any of the proposed new rooms. (Doc. 2 at 11). Instead, Harris chose "the room she thought was most appropriate," but told Reckley it was "the best of the worst" (Doc. 2 at 11) and was "not accessible." (Doc. 2 at 9). At one point, Strauss directed staff to forcibly evict Reckley from her room by removing all of her personal items, including necessary toileting materials, and withholding them in an attempt to coerce her into moving to a different room. (Doc. 9 at ¶ 4).

Beginning in August 2019, The Village began billing Reckley at a rate of $50 per day as a "private room" fee. (Doc. 9 at 3-4). Reckley asserts that The Village began charging her this additional fee in a further attempt to coerce her to move to another room and as retaliation for filing this lawsuit in July 2019. (Doc. 9 at 3; Doc. 5 at 1). Reckley alleges that Defendants' conduct is ongoing, and they "continue to harass [her] for trying to stay in a room suited to her needs." (Doc. 9 at 4).

Reckley brings discrimination and retaliation claims under Titles III and V of the ADA, respectively, and Section 504 of the Rehabilitation Act. Generally speaking, she alleges that Defendants discriminated against her based on her disability by attempting to move her to a room that would not accommodate herfunctional needs, and retaliated against her for exercising her rights under the ADA by charging her the $50 daily private room fee.

Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction due to lack of standing, and Rule 12(b)(6) failure to state claim for relief.⁴ (Doc. 17). Harris has also filed a separate motion on her own behalf to dismiss for lack of subject matter jurisdiction and failure to state a claim. (Doc. 19). Reckley, in turn, has filed a motion for leave to amend her complaint to: (1) identify The Village by its correct name; (2) dismiss the four individual Defendants; (3) add Harris's employer, Infinity Rehab, as a Defendant; and (3) add claims under the Fair Housing Act. (Doc. 41).

II. Subject Matter Jurisdiction

Defendants move to dismiss Reckley's ADA claims for lack subject matter jurisdiction on the ground that she has not alleged an injury-in-fact sufficient to confer Article III standing.⁵ (Doc. 17).

A. Legal Standard

A defendant may pursue a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) either as a facial challenge to the allegations of a pleading, or as a substantive challenge to the facts underlying the allegations. Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1039 n.2 (9^th Cir. 2003). A facial challenge to the jurisdictional allegations is one which contends that the allegations "are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9^th Cir. 2004). "By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone, 373 F.3d at 1039.

Resolution of a facial challenge to jurisdiction depends on the allegations in the complaint, and does not involve the resolution of a factual dispute. Wolfe v. Strankman, 392 F.3d 358, 362 (9^th Cir. 2004). In a facial challenge, the court must assume the allegations in the complaint are true and "draw all reasonable inferences in [plaintiff's] favor." Wolfe, 392 F.3d at 362; Whisnant v. U.S., 400 F.3d 1177, 1179 (9^th Cir. 2005).

Here, The Village has mounted a facial attack on jurisdiction. It takes the position that the allegations in the pleadings are insufficient on their face toestablish that Reckley has standing, as required for the Court to have subject matter jurisdiction over her claims. See Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 954 (9^th Cir. 2011) (a court lacks subject matter jurisdiction if the plaintiff does not have standing to bring the claims asserted). Because The Village is making a facial challenge to jurisdiction, the Court takes the allegations in Reckley's pleadings as true, draws all reasonable inferences in Reckley's favor, and construes the pro se pleading liberally. Wolfe v. Strankman, 392 F.3d 358, 362 (9^th Cir. 2004).

B. Standing

A disabled individual claiming discrimination under the ADA "must satisfy the case or controversy requirements of Article III by demonstrating [her] standing to sue at each stage of the litigation." Chapman v. Pier 1 Imports, 631 F.3d 939, 946 (9^th Cir. 2011). To establish standing, Reckley "must demonstrate that [she] has suffered an injury-in-fact, that the injury is traceable to [The Village's] actions, and that the injury can be redressed by a favorable decision." Chapman, 631 F.3d at 946. "In addition, to establish standing to pursue injunctive relief, which is the only relief available to private plaintiffs under the ADA, [Reckley] must demonstrate a 'real and immediate threat of repeated injury' in the future."Chapman, 631 F.3d at 946 (quoting Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9^th Cir. 2004)).

For purposes of the present motion, The Village focuses exclusively on the injury-in-fact element of standing. To satisfy this threshold element, "a plaintiff must have suffered an invasion of a legally protected interest" that is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotations and citations omitted). In the ADA context, a plaintiff suffers an injury-in-fact if she personally encountered the barrier complained of, or had actual knowledge of the barrier complained of and was deterred from visiting the public accommodation because of that barrier. Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1137-38 (9^th Cir. 2002).

The Village maintains that in the ADA context, a plaintiff must actually encounter a noncompliant barrier in order to suffer an injury-in-fact for standing purposes. The Village argues that Reckley did not suffer an injury-in-fact because, taking her allegations as true, she was never moved to a different room and therefore could not have encountered any noncompliant barriers. The Village also notes that, as alleged in the pleadings, Reckley never even visited any of theproposed new rooms.⁶ Because Reckley does not claim to have personally encountered any ADA-noncompliant barriers, The Village takes the position that she cannot demonstrate an injury-in-fact as required to have Article III standing.

While The Village is correct that Reckley does not claim to have personally encountered any noncompliant barriers, the Ninth Circuit has held a...