Getman v. Or. Health & Sci. Univ.

• Decision Date: 22 November 2022
• Docket Number: 3:21-cv-01408-SB
• Parties: CHRISTINE GETMAN, an individual, Plaintiff, v. OREGON HEALTH AND SCIENCE UNIVERSITY, a public corporation of the State of Oregon, Defendant.
• Court: U.S. District Court — District of Oregon

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CHRISTINE GETMAN, an individual, Plaintiff, v. OREGON HEALTH AND SCIENCE UNIVERSITY, a public corporation of the State of Oregon, Defendant.

No. 3:21-cv-01408-SB

United States District Court, D. Oregon

November 22, 2022

OPINION AND ORDER

HON STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

Plaintiff Christine Getman (“Getman”) filed this action against defendant Oregon Health and Science University (“OHSU”), alleging claims for disability discrimination under Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; Section 1557 of the Patient Protection and Affordable Care Act (“ACA”), 42 U.S.C. § 18116; and Oregon Revised Statute (“ORS”) § 659A.142. OHSU moves for summary judgment on all of Getman's claims. See Fed. R. Civ. P. 56.

The Court has original jurisdiction over Getman's federal claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Getman's state law claim pursuant to 28 U.S.C. § 1367, and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C § 636(c). For the reasons explained below, the Court grants in part and denies in part OHSU's motion.^[1]

LEGAL STANDARDS

Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). At the summary judgment stage, the court views the facts in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of that party. Porter v. Cal Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S 253, 289 (1968)).

DISCUSSION

OHSU moves for summary judgment on three grounds: (1) Getman's claims for equitable relief are moot; (2) Getman's federal claims for compensatory damages fail as a matter of law; and (3) there is no genuine issue of material fact as to whether OHSU violated ORS § 659A.142. (Def.'s Mot Summ. J. (“Def.'s Mot.”) at 4, 8, ECF No. 30.)

I. MOOTNESS

A. Applicable Law

Article III of the Constitution requires that “federal courts confine themselves to deciding actual cases and controversies,” and that “a live controversy persist throughout all stages of the litigation.” Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (quoting Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1228-29 (9th Cir. 2005) and Burke v. Barnes, 479 U.S. 361, 363 (1987)). The Ninth Circuit has recognized that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864 (9th Cir. 2017) (quoting O'Neal v. City of Seattle, 66 F.3d 1064, 1066 (9th Cir. 1995)). Consequently, “[a] request for injunctive relief remains live only so long as there is some present harm left [for the district court] to enjoin.” Id. (quoting Taylor v. Resol. Tr. Corp., 56 F.3d 1497, 1502 (D.C. Cir. 1995)).

Consistent with this understanding, the Ninth Circuit has explained that a plaintiff's “claim for injunctive relief becomes moot once subsequent events have made clear the conduct alleged as the basis for the requested relief ‘could not reasonably be expected to recur.'” Id. (quoting Ruiz v. City of Santa Maria, 160 F.3d 543, 548-49 (9th Cir. 1998)). A plaintiff has “no claim for an injunction” if he “cannot reasonably be expected to benefit from prospective relief ordered against the defendant.” Id. (citing Wal-Mart Stores v. Dukes, 564 U.S. 338, 364-65 (2011)).

B. Analysis

OHSU argues that Getman is not entitled to equitable relief because her claims are moot. (See Def.'s Mot. at 4-8, citing the mootness doctrine and arguing that Getman is “not entitled to equitable relief,” as “there is no substantial [live] controversy to warrant [such] relief”). The Court disagrees.

1. Getman's Requests for Injunctive Relief

Getman suffers from Type II spinal muscular atrophy and, as a result, has little to no use of the muscles below her neck, uses a wheelchair, ventilator, and tracheostomy tube, and requires the support of a 24/7 caregiver. (Decl. Christine Getman (“Getman Decl.”) ¶¶ 1-5, 13, ECF No. 35.) Getman's claims stem from OHSU's enforcement of “[t]emporary visitor guidelines,” also known as the “temporary no visitor policy,” in early April 2020, when the COVID-19 virus was spreading throughout the United States and OHSU admitted Getman to its hospital for treatment of bacterial meningitis.^[2] (See Decl. Matthew Ellis Opp'n Def.'s Mot. Summ. J. (“Ellis Decl.”) Ex. 36 at 1, ECF No. 38-11 (bold omitted); id. Ex. 40 at 2, ECF No. 38-12; Getman Decl. ¶¶ 10-14.)

In her complaint, Getman seeks equitable relief in the form of injunctions, including one related to OHSU's “current or future no-visitor policy.” (Second Am. Compl. (“SAC”) at 20-21, ECF No. 28); see Bayer, 861 F.3d at 864 (“Injunctive relief constitutes a traditional equitable remedy.”); Warmenhoven v. NetApp, Inc., 13 F.4th 717, 722 (9th Cir. 2021) (noting that an injunction is a “form[] of equitable relief”). Specifically, Getman seeks injunctions requiring OHSU to:

1. “provide [Getman] with reasonable modifications of its hospital policies, including any current or future no-visitor policy, if necessary to provide [Getman] full and equal advantages and privileges to [OHSU's] health services,” 2. “create [and place] a written accommodation plan . . . in [Getman's] medical records that allows [her] support person to attend all medical appointments and procedures at all OHSU clinics, in the OHSU emergency department, and the OHSU hospital to assist [her] with effective communication and/or her daily living tasks, such as eating, toileting, repositioning, or disability-related needs,”

3. “have a Section 504/Title II/Section 1557 disability coordinator on site to coordinate and address patient requests for reasonable modifications of policies during . . . a hospital stay,”

4. “train[] . . . all hospital management responsible for granting or denying requests for reasonable modifications of the legal requirements pertaining to reasonable modifications under Title II of the ADA, Section 504 of the [RA], Section 1557 of the ACA[,] and ORS 659A.142,” and

5. “train[] . . . all hospital management on the rights of persons with disabilities to have a support person and/or caregiver present if needed to assist that person with disability-related tasks.”

SAC at 20-21.)

2. The Parties' Positions

OHSU argues that Getman is not entitled to equitable relief because the complained-of policy “no longer exists,” OHSU's current policy allows patients to have up to two visitors per day, and the Oregon Legislature passed Senate Bill 1606 (“SB 1606”), now codified at ORS § 441.049, “mandating that hospitals allow disabled patients to have support people present at all times.”^[3] (Def.'s Mot. at 4-8, citing Decl. Karen O'Kasey Supp. Def.'s Mot. Summ. J. (“O'Kasey Decl.”) Ex. 2 at 1, ECF No. 31-2.) In other words, OHSU argues that Getman's requests for injunctive relief are moot given the change in OHSU's visitor policy and the passage of SB 1606. (Id.)

Getman disagrees with OHSU's mootness argument and emphasizes that she “seeks multiple other forms of equitable relief . . . beyond repeal of OHSU's former visitor policy [i.e., injunction requests (2)-(5) above].” (Pl.'s Mem. Opp'n Def.'s Mot. Summ. J. (“Pl.'s Opp'n”) at 18-21, ECF No. 33.) Getman also argues that because OHSU has failed to demonstrate that it is “absolutely clear” that the alleged wrongful behavior addressed in her first injunction request (i.e., OHSU's decision not to allow Getman's 24/7 caregiver to be present during a hospital admission) cannot reasonably be expected to recur, the mootness doctrine does not apply. (Id. at 14-18.)

3. Disposition

The Court concludes that OHSU has not satisfied its heavy burden of demonstrating mootness.

“In seeking to have a case [or claims for injunctive relief] dismissed as moot[,] . . . the defendant's burden is a heavy one.” Nat. Res. Def. Council v. Cnty. of L.A., 840 F.3d 1098, 1101 (9th Cir. 2016) (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987)). In fact, “[t]he defendant must demonstrate that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (quoting Gwaltney, 484 U.S. at 66).

A defendant “may do so by persuading the court that ‘the change in its behavior is entrenched or permanent,'” Am. Diabetes Ass'n v. U.S. Dep't of the Army, 938 F.3d 1147, 1152 (9th Cir. 2019) (quoting Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018)), and thus there remains no effective or possible relief a court can provide. See Bayern, 861 F.3d at 862 (“The party asserting mootness bears the heavy burden of establishing that there remains no effective relief a court can provide.”); Johnson v. Baker, 23 F.4th 1209, 1214 n.2 (9th Cir. 2022) (noting that a claim for injunctive relief is “moot only if it is impossible for [the] court to grant relief”) (simplified). OHSU has not demonstrated that there remains no effective or possible relief the Court can provide.

a. Getman's First Request for Injunctive Relief

As to Getman's first request for injunctive relief,...