17-977-cv
Berry-Mayes v. New York City Health and Hosps. Corp.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of February, two thousand eighteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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WANNA BERRY-MAYES, as administrator of the estate
of Andre Berry,
                         Plaintiff-Appellant,

                              v.                                              No. 17-977-cv

NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION,
                         Defendant-Appellee.
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APPEARING FOR APPELLANT:                          ANDREW ROZYNSKI, Eisenberg & Baum,
                                                  LLP, New York, New York.

APPEARING FOR APPELLEE:                                ELIZABETH I. FREEDMAN (Claude S.
                                                       Platton, on the brief), on behalf of Zachary W.
                                                       Carter, Corporation Counsel of the City of
                                                       New York, New York, New York.
      Appeal from a judgment of the United States District Court for the Southern

District of New York (P. Kevin Castel, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 19, 2016, is AFFIRMED.

      Plaintiff Wanna Berry-Mayes appeals from an award of summary judgment

dismissing this action on behalf of the estate of her deceased uncle, Andre Berry, against

the New York City Health and Hospitals Corporation (“HHC”), for violations of the

Americans with Disabilities Act (“ADA”), see 42 U.S.C. § 12101 et seq., the

Rehabilitation Act (“Rehab Act”), see 29 U.S.C. § 794, as well as state and municipal

human rights laws, see N.Y. Exec. Law § 290 et seq.; N.Y.C. Admin. Code § 8-101 et

seq. Berry-Mayes alleges that staff at two HHC facilities, Lincoln and Jacobi Hospitals,

failed to provide Andre Berry, who was deaf and suffering from end-stage renal disease,

diabetes, hypertension, and HIV, with reasonable accommodations necessary to ensure

effective communication concerning his care.

      In granting summary judgment to HHC, the district court concluded that HHC had

adduced convincing evidence of reasonable accommodation, as to which Berry-Mayes

failed to raise a genuine issue of fact.        The district court further concluded that

Berry-Mayes had failed to raise an issue of deliberate indifference necessary for

compensatory damages and, in any event, was not entitled to a declaratory judgment.

Finally, the court declined to exercise supplemental jurisdiction over the state and

municipal claims.


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       On appeal, Berry-Mayes does not challenge the district court’s adverse declaratory

judgment ruling, thereby abandoning any argument she might have as to such relief.

See Higazy v. Templeton, 505 F.3d 161, 168 n.7 (2d Cir. 2007) (“An argument or an issue

that is not raised in the appellate brief may be considered abandoned.”). She argues

only that she produced evidence sufficient to raise genuine disputes as to reasonable

accommodation and deliberate indifference. We assume the parties’ familiarity with the

facts and record of prior proceedings, which we reference only as necessary to explain

our decision to affirm for lack of evidence of deliberate indifference.

       The parties agree that to recover compensatory damages, Barry-Mayes must

demonstrate that HHC acted with deliberate indifference to Andre Berry’s federally

protected rights. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir.

2009). 1   A defendant acts with deliberate indifference when it (1) “ha[s] actual

knowledge of discrimination against” the disabled person, (2) “ha[s] authority to correct

the discrimination,” and (3) “fail[s] to respond adequately.”       Id. at 276.   Although

deliberate indifference does not require proof of “personal animosity or ill will,” id. at

275, as the phrase suggests, the evidence must show “deliberate choice[,] rather than

negligence or bureaucratic inaction,” id. at 276. In Loeffler, we identified a triable issue

of deliberate indifference from evidence that a hospital ignored, and, in some instances,

1
  Although a member of the panel raised the question of nominal damages at oral
argument, the record shows that Berry-Mayes never requested nominal damages in
opposing summary judgment in the district court or in seeking relief on appeal. We,
therefore, deem such an argument forfeited and here consider only whether Berry-Mayes
sufficiently demonstrated the deliberate indifference necessary for compensatory
damages.

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“laughed off” numerous requests over an eleven-day period to provide a sign-language

interpreter for a deaf patient. Id.

       That is not this case.     The record shows that notices of free sign-language

interpretation services were posted throughout the hospitals’ common areas and patient

units, as well as in the patient handbook. More to the point, Andre Berry was provided

with a sign-language interpreter on no fewer than fourteen occasions. As for times

when he was not, hospital staff thoroughly and meticulously documented Andre Berry’s

communication abilities.    Although the parties dispute the extent to which Andre Berry

could communicate by reading lips or using his hearing aid, it is undisputed that he had at

least some ability to communicate other than through sign language. Indeed, although

neither Berry-Mayes nor her mother Denise Berry knew sign language, both women

communicated with Andre Berry verbally and through gestures.              Moreover, when

Denise Berry requested an interpreter on October 23, 2013, the hospital provided one,

who worked with Andre Berry for three hours, despite his express refusal of interpreter

services earlier that same day.       Hospital records further indicate that an interpreter

translated for Andre Berry twice on the following day, October 24, as well as on October

26, 27, and 28.

       This record is so distinguishable from that in Loeffler that, even if federal law

demands greater accommodation, there is no evidentiary basis for finding that the failure

to provide that accommodation here was based on HHC’s deliberate indifference to

Andre Berry’s needs.


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      Accordingly, the district court correctly concluded that Berry-Mayes could not

succeed on a claim for compensatory damages. That being the only relief at issue on

this appeal, we need not decide whether the challenged judgment is further supported by

the lack of a triable issue as to reasonable accommodation.

      We have considered Berry-Mayes’s other arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




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