          Case: 14-12771   Date Filed: 07/31/2015   Page: 1 of 22


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12771
                      ________________________

               D.C. Docket No. 6:12-cv-01268-GAP-DAB



RICHARD MARTIN,
JOHN D'AMBROSIO,
YOLANDA GERVARZES,

                                                         Plaintiffs-Appellants,

                                 versus

HALIFAX HEALTHCARE SYSTEMS, INC.,
HALIFAX COMMUNITY HEALTH SYSTEMS,
a Special Taxing District,
d.b.a. Halifax Hospital Medical Center,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (July 31, 2015)
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Before JORDAN, JULIE CARNES, and LINN, * Circuit Judges.

JULIE CARNES, Circuit Judge:

       Plaintiffs Richard Martin, John D’Ambrosio, and Yolanda Gervarzes

(collectively, “Plaintiffs”) appeal the district court’s order granting summary

judgment to Defendants on their disability discrimination claims arising under the

Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act of 1973

(the “Rehab Act”).1 The district court held that there was no evidence from which

a reasonable jury might conclude that Plaintiffs were excluded from participating

in, or denied the benefit of, the services Defendants provided, or otherwise

discriminated against. After a careful review of the record, and with the benefit of

oral argument, we affirm.

                                     BACKGROUND

I.     Factual Background

       Defendants Halifax Healthcare Systems, Inc. and Halifax Community

Health Systems own and operate Halifax Hospital Medical Center (“Halifax

Hospital” or “the hospital”). The three plaintiffs are deaf individuals who

communicate primarily through the use of American Sign Language (“ASL”) and
       *
         Honorable Richard Linn, United States Circuit Judge for the Federal Circuit, sitting by
designation.
       1
          The district court also granted summary judgment on claims asserted by Plaintiffs under
the Florida Civil Rights Act of 1992. Plaintiffs do not specifically challenge on appeal or offer
any arguments concerning the district court’s ruling on claims made under this statute.



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who either were treated or were present with a family member who was treated at

Halifax Hospital in the summer of 2011. Plaintiffs claim that they requested live

ASL interpreting services at some point during their interaction with the hospital

staff. And, as described in more detail below, the hospital did provide several

hours of live interpreting services to Plaintiffs D’Ambrosio and Gervarzes, and

communicated with all three plaintiffs via written notes. However, the hospital did

not provide continuous live interpreting services to D’Ambrosio or Gervarzes

throughout the duration of their stay at the hospital, nor did the hospital make a

live interpreter available to Plaintiff Martin during his brief emergency room visit.

Because the hospital failed to do so, Plaintiffs initiated the present litigation. We

set out, individually, the facts underlying each plaintiff’s claim.

      A.     John D’Ambrosio

      Accompanied by girlfriend Sandra Hill, who is also deaf, D’Ambrosio was

rushed to the hospital on June 23, 2011, after suffering a major heart attack. Dr.

Kirby Haws, one of D’Ambrosio’s treating physicians, testified that D’Ambrosio’s

condition upon arrival at the hospital was life threatening. Recognizing that they

needed to act fast to save D’Ambrosio’s life, the medical staff quickly determined

that D’Ambrosio needed an emergency cardiac catheterization, which procedure

was soon thereafter performed by Dr. Vance Wilson.

      D’Ambrosio and his girlfriend had both requested a live ASL interpreter



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immediately upon their arrival at the hospital. And, in fact, hospital staff contacted

SLS Interpreting Services to request an interpreter, informing D’Ambrosio that a

live interpreter was on the way. But once it was determined that D’Ambrosio

needed an immediate, emergency cardiac catheterization, staff canceled the request

for an interpreter.

       As to the time spent with D’Ambrosio before the catheterization, Dr. Haws

and Dr. Wilson testified that they were able to communicate effectively with him,

notwithstanding the absence of a live interpreter. Dr. Haws stated that he used the

“LifeLinks” video remote interpreting (“LifeLinks”) system to advise D’Ambrosio

about his condition and the catheterization procedure and that he communicated

with D’Ambrosio’s girlfriend through a combination of lip-reading, gestures, and

written notes.2 Dr. Haws did not recall D’Ambrosio requesting a live interpreter

prior to the procedure, and he did not believe that a live interpreter was necessary.

       Dr. Wilson similarly indicated in his written report that he used a

“translator” in the catheterization lab to inform D’Ambrosio that he was “having a

heart attack and that we were going to have to open up his heart artery with a

catheter.” Dr. Wilson did not write notes to D’Ambrosio prior to or during the

procedure due to the need to keep the catheterization lab sterile. Nonetheless, Dr.

Wilson did use hand gestures to let D’Ambrosio know that he was okay and to

       2
         LifeLinks is an interpreting service that provides access to a live ASL interpreter on a
video screen.


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remind him that he needed to be still during the procedure. Dr. Wilson testified

that D’Ambrosio appeared to understand his communications. In any event, as Dr.

Wilson explained, prior to an emergency catheterization, there is limited

opportunity to communicate with any patient, regardless of whether or not the

patient can hear. Indeed, due to the urgency of the procedure, a doctor’s

communication to the patient generally consists of little more than informing the

patient that he is having a heart attack and that a catheterization procedure needs to

be done immediately.

      D’Ambrosio acknowledges that Dr. Wilson attempted to communicate with

him through the LifeLinks system immediately before the catheterization

procedure. In fact, in the summary judgment response that Plaintiffs filed in the

district court, D’Ambrosio indicated that Dr. Wilson actually did communicate

with him via LifeLinks prior to the procedure. Yet, in a subsequent motion to

reconsider submitted after the entry of summary judgment, and now on appeal,

D’Ambrosio claimed that the LifeLinks system was inoperable. As a result,

D’Ambrosio contends that, having no understanding of his condition or what the

catheterization would entail, he was distressed because he was in pain throughout

the procedure.

      After the procedure, D’Ambrosio was placed in the ICU and visited there by

Dr. Wilson, who communicated with him by writing notes. Dr. Wilson testified



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that, through these notes, he was able to convey that the procedure was successful,

that D’Ambrosio would be okay, and that Wilson would come back the next day to

discuss follow-up and prognosis. The documentary evidence, which includes Dr.

Wilson’s written notes, confirms Dr. Wilson’s testimony. Moreover, it is

undisputed that D’Ambrosio can read and write English. D’Ambrosio nevertheless

claims that he did not understand the information provided to him by Dr. Wilson in

the ICU.

      D’Ambrosio was hospitalized at Halifax Hospital from June 23, 2011

through June 28, 2011. D’Ambrosio testified that he repeatedly requested a live

ASL interpreter during his hospitalization, but that while an interpreter was present

some of the time, during the majority of the time there was no live interpreter.

According to D’Ambrosio, the hospital staff tried to communicate with him

through friends and family, written notes, and gestures, but he was unable to

understand any of the information the staff attempted to provide. Again, however,

written notes in the record confirm that Dr. Wilson and other staff provided

detailed written information to D’Ambrosio concerning his condition, treatment,

and prognosis, including a graphic depiction of the cardiac catheterization

procedure.

      Undisputed documentary evidence also shows that the hospital provided

webcam interpreting services to D’Ambrosio on June 24th, and a live interpreter to



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D’Ambrosio for two hours on June 26th, four hours on June 27th, and two hours

on June 28th. Further, D’Ambrosio, who testified that he regularly texted when

communicating with hearing and deaf individuals in other contexts, acknowledged

that he had his laptop during most of his hospital stay and that he could have used

it to communicate with hospital staff by typing written notes, but he simply chose

not to do so.3

       After his hospitalization, D’Ambrosio continued to be treated by Dr. Wilson,

until Dr. Wilson terminated the relationship due to D’Ambrosio’s refusal to

comply with his order that he stop smoking. An ASL interpreter was present at

each of D’Ambrosio’s follow-up visits with Dr. Wilson.

       B.     Yolanda Gervarzes

       Gervarzes accompanied her seventeen-year old daughter, Angelique Martin,

to the hospital on August 2, 2011 when Martin manifested pre-term labor

symptoms. Upon arrival at 9:00 p.m., Gervarzes requested a live ASL interpreter.

Gervarzes was not a newcomer to the hospital, having been there many times

before and having received live interpreting services on at least 48 prior occasions

when she had been seen as a patient. This time, though, the staff first attempted to

use the LifeLinks system to communicate with her, instead of obtaining a live

       3
          D’Ambrosio also had access to an ASL translating service on his laptop, but, crediting
D’Ambrosio’s testimony, we assume that he was prohibited by his service agreement from using
the translating service to converse with people in the same room as him, and so he could not use
the service to communicate with hospital staff.


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interpreter.

      Nurse Laperriere, who spoke with Gervarzes upon her daughter’s admission

to the hospital, testified that she had used LifeLinks without any problems in the

past, but Gervarzes nonetheless refused to use the service. Laperriere then

contacted Nurse Pollock, the supervising nurse on duty at the time, about obtaining

a live interpreter for Gervarzes. Pollock testified that when he encountered

Gervarzes, she was angry and shaking an ADA flyer in an “animated” manner.

Even though the LifeLinks system had been set up and was ready for use by

Gervarzes, Pollock acceded to Gervarzes’ demand and immediately arranged for a

live interpreter to come to the hospital instead. Pollock placed no restrictions on

the time the interpreter could remain there.

      Gervarzes’ daughter gave birth to a healthy baby boy at 5:40 p.m. on August

4, and was discharged on August 6. During her stay, the hospital provided live

interpreting services to her mother, Plaintiff Gervarzes, from 11:30 p.m. until 1:30

a.m. on August 2-3, and from 9:30 a.m. until 12:30 p.m. on August 3. When no

interpreter was present, hospital staff was able to communicate with Gervarzes via

her daughter, who was not deaf, and by writing notes.

      C.       Richard Martin

      Martin was treated in the hospital’s emergency room for a minor head injury

that he suffered when he fell out of his motorized scooter while shopping on



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August 17, 2011. While he was in the ER, Martin was examined and his vital

signs were taken. Martin had a CT scan of his brain and x-rays of his cervical

spine and shoulder, the results of which were normal.

       Dr. Kocisko, who attended to Martin during his ER visit, testified that

Martin never requested a live interpreter, 4 and Kocisko did not believe a live

interpreter was necessary. Dr. Kocisko wrote notes to communicate with Martin,

who appeared to understand all the information that was conveyed to him. Martin

received typed instructions upon discharge, and it is undisputed that he could read

and write English. As Martin was only in the emergency room for about two hours

before he was discharged, the above constitutes the extent of his interaction with

hospital staff on this particular occasion. Further, it is undisputed that the hospital

had provided live interpreting services to Martin on at least 42 prior occasions.

II.    Procedural History

       Plaintiffs filed their complaint in August, 2012, asserting claims against

Defendants under Title II and Title III of the ADA, § 504 of the Rehab Act, and the


       4
           Plaintiffs claimed in their brief in opposition to summary judgment, as they claim in
their appellate brief, that Martin requested an interpreter upon his arrival at the hospital and
numerous times thereafter, but no interpreter was provided. Yet, Plaintiffs cited no evidence in
support of that claim in any of the materials they filed in the district court. Likewise, Plaintiffs
cite no supporting evidence for this assertion on appeal. See Mann v. Taser Int’l, Inc., 588 F.3d
1291, 1303 (11th Cir. 2009) (“For factual issues to be considered genuine, they must have a real
basis in the record.”) (citation and quotation marks omitted); Gargiulo v. G.M. Sales, Inc., 131
F.3d 995, 999 (11th Cir. 1997) (“to oppose [a] properly supported motion for summary
judgment, [the plaintiff] must come forward with specific factual evidence, presenting more than
mere allegations”).


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Florida Civil Rights Act. In their complaint, Plaintiffs alleged that the above

statutes require that deaf individuals have an equal opportunity to participate in and

enjoy the benefits of the hospital’s services, and that Defendants failed to meet the

obligations imposed on them by these laws. Plaintiffs sought both compensatory

damages and injunctive relief.

      Defendants moved for summary judgment. Plaintiffs filed a timely

response. Yet, while Gervarzes, D’Ambrosio, and D’Ambrosio’s girlfriend

submitted declarations, and Martin submitted a set of interrogatory responses, in

opposition to summary judgment, Plaintiffs neither submitted nor referenced any

of their own deposition testimony. Thereafter, Defendants filed their reply. It was

only then, about a month after filing their response, that Plaintiffs sought leave to

supplement the record by designating additional evidence, primarily the complete

transcript of each Plaintiff’s deposition.

      The district court denied Plaintiff’s motion to supplement, and granted

summary judgment to Defendants. Plaintiffs moved for reconsideration of the

summary judgment order, but attached only D’Ambrosio’s deposition transcript as

an exhibit, and not the deposition transcripts of Martin and Gervarzes. Defendants

filed a motion to strike the deposition transcript, which the district court granted in

conjunction with its order denying reconsideration.

      On appeal, Plaintiffs contend that there is sufficient evidence in the record to



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withstand Defendants’ motion for summary judgment. According to Plaintiffs, the

hospital’s failure to provide live interpreters during the entirety of their stay creates

a triable issue as to whether the hospital failed to provide appropriate auxiliary aids

necessary to ensure effective communication, as required by the ADA and the

Rehab Act. Related to this contention, Plaintiffs also argue that the district court

erred in denying their motion to reconsider, meaning that the court should have

considered D’Ambrosio’s deposition testimony in ruling on the summary judgment

motion.

                                    DISCUSSION

I.    Motions to Supplement and Reconsider

      In support of their motion for summary judgment, Defendants cited

documentary evidence and testimony, including excerpts from the depositions of

D’Ambrosio and Martin. In their response, however, Plaintiffs cited to no

deposition testimony. Instead, the only evidence Plaintiffs submitted in response

to Defendants’ motion was a set of interrogatory responses from Martin

establishing that he is deaf and primarily uses ASL to communicate, and

declarations from Gervarzes, D’Ambrosio, and D’Ambrosio’s girlfriend summarily

stating that (1) they requested an interpreter during their interactions with the

hospital and “on many occasions [an interpreter] was not provided” and (2) they

did not understand the information the hospital staff tried to convey through other



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means, such as written notes.5 Gervarzes and D’Ambrosio never specified what

information they did not understand.

       Nearly a month after they filed their initial response, and after Defendants

had already filed their reply, Plaintiffs sought leave to supplement the summary

judgment record by designating additional deposition testimony. Even had it been

timely, this tardy submission still failed to comply with the Federal Rules of Civil

Procedure because Plaintiffs never offered any specific cites in their belated

offering. See Fed. R. Civ. P. 56(c)(1)(A) (requiring a party who asserts that a fact

is genuinely disputed to support the assertion by “citing to particular parts of

materials in the record”). The district court denied the motion. In their subsequent

motion to reconsider, Plaintiffs attached D’Ambrosio’s complete deposition as an

exhibit and, only then, did they finally cite to specific portions of the testimony on

which they relied. The district court granted Defendants’ motion to strike this

untimely proffer of evidence, and it denied reconsideration.

       We review the district court’s rulings on the motion to supplement and the

motion to reconsider for an abuse of discretion. See Fed. R. Civ. P. 56(e)

(permitting but not requiring the district court to “give an opportunity to properly

support or address” a fact); Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282,


       5
         They also attached to the declarations some hospital records, including D’Ambrosio’s
discharge summary and selected handwritten notes that D’Ambrosio and Gervarzes had
exchanged with hospital staff.


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1285 (11th Cir. 2001) (“The denial of a motion for reconsideration . . . is reviewed

only for abuse of discretion.”). We find no abuse of discretion. See Fils v. City of

Aventura, 647 F.3d 1272, 1283 (11th Cir. 2011) (“the district court does not abuse

its discretion simply because the appellate court would have handled the issue

differently”).

      Pursuant to Rule 56, Plaintiffs were required to cite in their initial response

the “particular parts” of any depositions relied upon in opposition to summary

judgment. Fed. R. Civ. P. 56(c)(1)(A). The depositions at issue had been available

to Plaintiffs for more than six months when they filed their response, and Plaintiffs

were aware that Defendants had cited portions of these same depositions in support

of their motion for summary judgment. Yet, Plaintiffs did not offer, and still do

not offer, any reason for neglecting to provide the required citations or to respond

specifically to the evidence cited by Defendants. Even when they filed their

subsequent motion to supplement, Plaintiffs still failed to cite to “particular parts”

of the depositions, as required by Rule 56.

      Plaintiffs finally provided citations to D’Ambrosio’s deposition in their

motion to reconsider. However, given the unexplained delay and the previous

failure to provide any specific citations, our precedent and the governing federal

rules did not require the district court to consider D’Ambrosio’s deposition

transcript. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited



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materials, but it may consider other materials in the record.”); Young v. City of

Palm Bay, Florida, 358 F.3d 859, 864 (11th Cir. 2004) (“the district court had a

range of options which included refusing to consider untimely filings”).

Accordingly, we find no abuse of discretion by the district court in denying

Plaintiff’s motions to supplement and to reconsider.

II.   Summary Judgment Motion

      A.     Standard of Review

      We review the district court’s order granting summary judgment de novo.

McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1141 (11th Cir.

2014). We apply the same standard as the district court, viewing the facts and

drawing all reasonable inferences in the light most favorable to Plaintiffs. Liese v.

Indian River Cnty. Hosp. Dist., 701 F.3d 334, 337 (11th Cir. 2012).

      B.     Applicable Law

      Plaintiffs’ ADA and Rehab Act claims are governed by the same legal

standard. See Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). To prevail,

Plaintiffs must prove (1) that they are qualified individuals with a disability, (2)

who were excluded from participation in or denied the benefits of the hospital’s

services, programs, or activities, or otherwise discriminated against, (3) on account

of their disability. See Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001).

Further, to recover compensatory damages, Plaintiffs must also show that the



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exclusion or denial was the result of intentional discrimination. Liese, 701 F.3d at

344 (citing Wood v. President & Trs. of Spring Hill Coll., 978 F.2d 1214, 1219

(11th Cir. 1992)). Here, Plaintiffs sought both compensatory damages and

injunctive relief in their complaint. There is no dispute that Plaintiffs are qualified

individuals with a disability. The question is whether the hospital excluded

Plaintiffs from, or denied them the benefits of, the hospital’s services or programs

by failing to provide a live ASL interpreter every time an interpreter was

requested.

      The governing regulations provide that such an exclusion or denial occurs

when a hospital fails to provide “appropriate auxiliary aids” to a deaf individual,

including a deaf companion, “where necessary to ensure effective

communication.” 28 C.F.R. § 36.303(c)(1). See also 28 C.F.R. § 36.202(b)

(requiring public accommodations to provide an “equal” opportunity for the

hearing impaired to participate in and benefit from services). “Companion”

includes a family member of an individual seeking access to a hospital’s services.

28 C.F.R. § 36.303(c)(1)(i). Appropriate auxiliary aids include live interpreters or

video remote interpreting systems, among other aids such as computer-aided

transcription services, written materials, and exchange of written notes. See 28

C.F.R. § 36.303(b). The type of aid that is necessary varies depending on the

individual’s communication method, the “nature, length, and complexity” of the



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involved communication, and the context in which the communication occurs. 28

C.F.R. § 36.303(c)(1)(ii).

      In accordance with the above regulations, this Court has recognized that the

question whether a hospital has provided appropriate auxiliary aids to a deaf

patient is generally a “fact-intensive” inquiry that depends on context, especially

the nature, significance, and complexity of the involved treatment. Liese, 701 F.3d

at 342. We have thus held that a live ASL interpreter might be necessary for a

patient to understand a complex procedure such as gallbladder surgery. Id. at 343-

44 (finding a question of fact as to whether a hospital violated the ADA and the

Rehab Act where a deaf patient asked for an interpreter but did not receive one,

and thus did not understand much of what was conveyed to her, via lip-reading,

notes, and pantomiming, about her proposed gallbladder removal surgery). Yet we

have also warned that not every denial of a request for an auxiliary aid precludes

summary judgment or creates liability under the ADA or the Rehab Act. Id. at

343. Otherwise, a requested service would automatically be transformed into a

“necessary” service merely by the fact that it was requested. Id. (“[C]onstruing the

regulations in this manner would effectively substitute ‘demanded’ auxiliary aid

for ‘necessary’ auxiliary aid.”).




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      C.     Exclusion or Denial of Benefits

             1.     John D’Ambrosio

      The record here indicates that the hospital provided the appropriate auxiliary

aids necessary to ensure that D’Ambrosio could effectively communicate with

hospital staff. It is undisputed that the staff immediately requested a live ASL

interpreter for D’Ambrosio as soon as he arrived at the hospital. The request was

cancelled only when it was determined that D’Ambrosio needed an emergency

catheterization procedure. The reason for the cancellation is obvious: time was of

the essence in performing the catheterization and waiting for a live interpreter

would have been severely detrimental to D’Ambrosio’s health. Indeed, had the

doctors not gotten D’Ambrosio into the catheterization lab as quickly as possible,

but instead waited for an interpreter to arrive, they might well have been unable to

save his life. In short, the biggest barrier to the staff’s ability to converse with

D’Ambrosio at that time was not the absence of a live ASL interpreter, but the fact

that the doctors had to immediately begin the procedure necessary to save his life.

      The undisputed evidence further shows that during D’Ambrosio’s

hospitalization following the catheterization, Dr. Wilson and other staff used a

variety of appropriate auxiliary aids to ensure effective communication with him,

including simple but detailed written notes and graphics. It is undisputed that

D’Ambrosio can read and write English and that he regularly uses writing,



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including texting, to communicate with hearing and deaf individuals in other

contexts. In fact, in his declaration, D’Ambrosio never specifies what, exactly, he

failed to understand in these written notes and graphics. 6 In addition, it is

undisputed that the hospital provided D’Ambrosio with bedside webcam

interpreting services on June 24th, and with eight hours of live ASL interpreting

services between June 26th and his discharge from the hospital on June 28th.

       In light of the above evidence, the declarations D’Ambrosio and his

girlfriend provided to the district court were insufficient to show that the hospital

failed to provide aids necessary to ensure effective communication, in violation of

the ADA or the Rehab Act. Nor could a jury have reasonably inferred a violation

based on the cited portions of D’Ambrosio’s deposition testimony. In fact,

D’Ambrosio’s deposition testimony clarifies that the basis of his discrimination

claim is that he did not receive round-the-clock live ASL interpreting services

during his hospitalization.7 As we explained in Liese, a hospital is not required by

the ADA or the Rehab Act to provide every auxiliary aid that is demanded. Liese,

701 F.3d at 343. See also McCullum, 768 F.3d at 1147 (the applicable regulations


       6
          In his brief, D’Ambrosio asserts that certain written exchanges reveal the existence of
“communication barriers.” Leaving aside the fact that D’Ambrosio did not include this assertion
in his declaration, the cited written notes, when read in context, do not demonstrate any lapse in
comprehension.
       7
         D’Ambrosio testified at his deposition that he believed a live ASL interpreter should
have been present at all times during his hospitalization, even when he was asleep or
unconscious.


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“do not require healthcare providers to supply any and all auxiliary aids even if

they are desired and demanded”). Because there is no evidence that the hospital

failed to provide auxiliary aids that were necessary to ensure effective

communication with D’Ambrosio, Defendants are entitled to summary judgment

on his claims.

             2.     Yolanda Gervarzes

      Like D’Ambrosio, Gervarzes submitted a declaration in response to

Defendants’ summary judgment motion stating that she requested live ASL

interpreting services, that the services were not provided, and that, as a result, she

was unable to participate in her daughter’s care. Gervarzes did not specify how her

participation was limited. Moreover, there is undisputed evidence that Gervarzes

was offered interpreting services over the LifeLinks system upon her arrival to the

hospital, but she rejected those services. She then was provided at least five hours

of live ASL interpreting services during her daughter’s hospitalization. When a

live interpreter was not there, the staff was able to communicate with Gervarzes

via her daughter and by writing notes. Given this evidence, a reasonable jury

could not conclude that the hospital failed to provide the auxiliary aids necessary

for effective communication with Gervarzes. Thus, the district court properly

granted summary judgment to Defendants on her claims.




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             3.     Richard Martin

       Finally, as to Richard Martin, he failed, both in the district court and on

appeal, to cite to any evidence showing that he ever asked for a live interpreter

during his brief emergency room visit. Martin’s treating physician Dr. Kocisko

testified that Martin did not ask for a live interpreter and further that, given how

minor Martin’s injury was—essentially a “bump on the head,”—an interpreter was

not necessary. Martin received typed instructions upon his discharge, which he

indicated he understood, and it is undisputed that Martin was able to read and write

English. Given this evidence, the hospital did not violate the ADA or the Rehab

Act by failing to provide a live interpreter to Martin on this particular occasion.

Cf. Liese, 701 F.3d at 343-44 (finding that a live interpreter might be required to

explain the plaintiff’s emergency gallbladder surgery).

       D.    Compensatory Damages

       Assuming Defendants did fail to provide appropriate and necessary auxiliary

aids, such a failure by itself does not sustain a claim for compensatory damages.

Id. at 344. Plaintiffs must also show by a preponderance of evidence that the

failure was the result of intentional discrimination. Id. (citing Wood, 978 F. 2d at

1219). Plaintiffs can meet this requirement with evidence that Defendants were

“deliberately indifferent” to their rights under the ADA and the Rehab Act. Id. at

345.



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      Deliberate indifference occurs when a defendant knows that a rights

violation is substantially likely and fails to act on that likelihood. Id. at 344; see

also Doe v. Sch. Bd. of Broward Cnty., Florida, 604 F.3d 1248, 1259 (11th Cir.

2010) (describing deliberate indifference as “an exacting standard”). As the name

implies, deliberate indifference involves a “deliberate choice.” Liese, 701 F.3d at

344. Mere negligence is insufficient. See Kelley v. Hicks, 400 F.3d 1282, 1285

(11th Cir. 2005) (applying the deliberate indifference standard in an Eighth

Amendment case). As such, a hospital’s failure to provide an interpreter on

demand is not sufficient to support a finding of deliberate indifference. McCullum,

768 F.3d at 1147. Rather, a plaintiff must show that hospital staff knew there was

a substantial likelihood that they would be unable to communicate effectively

absent an interpreter, but still made a “deliberate choice” not to provide one. Id. at

1147-48.

      Here, the district court, having based its grant of summary judgment on

Plaintiffs’ failure to offer evidence that Defendants failed to provide appropriate

aids necessary to effective communication, did not need to reach the question

whether Defendants had acted with deliberate indifference to Plaintiffs’ rights

under the pertinent statutes. We likewise do not need to explore Defendants’ state

of mind except to note the obvious: when a plaintiff cannot show that a defendant

failed to provide appropriate communication aids, that plaintiff has also necessarily



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               Case: 14-12771    Date Filed: 07/31/2015    Page: 22 of 22


failed to show that the defendant acted with deliberate indifference to the

plaintiff’s rights under the relevant statutes. Cf. Loeffler v. Staten Island Univ.

Hosp., 582 F.3d 268, 276 (2d Cir. 2009) (finding an issue of fact as to deliberate

indifference where the defendant hospital failed to provide any interpretive

services whatsoever during the twelve-day period following a heart patient’s

surgery and subsequent stroke and convalescence).

                                   CONCLUSION

         For the reasons stated above, we AFFIRM the judgment of the district

court.




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