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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12386 Non-Argument Calendar ________________________
D.C. Docket No. 1:14-cv-21803-KMW
CHEYLLA SILVA, JOHN PAUL JEBIAN,
Plaintiffs - Appellants,
versus
BAPTIST HEALTH SOUTH FLORIDA, INC., BAPTIST HOSPITAL OF MIAMI, INC., SOUTH MIAMI HOSPITAL, INC.,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 3, 2020)
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM: USCA11 Case: 19-12386 Date Filed: 12/03/2020 Page: 2 of 18
Cheylla Silva and John Paul Jebian (collectively, “Plaintiffs”) sued two
hospitals, Baptist Hospital of Miami, Inc., and South Miami Hospital, Inc., and their
parent organization, Baptist Health South Florida, Inc. (collectively, “Baptist”), for
monetary damages and injunctive and declaratory relief under the Rehabilitation Act
(“RA”), 29 U.S.C. § 794, and the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12182. Plaintiffs, who are deaf, alleged that Baptist discriminated against
them on the basis of disability by failing to provide appropriate auxiliary aids
necessary to ensure effective communication with hospital staff. The district court
granted summary judgment to Baptist on Plaintiffs’ claims for monetary relief,
concluding that they could not prove the necessary element of deliberate
indifference. Then, after a bench trial, the court found that Plaintiffs lacked Article
III standing to obtain injunctive or declaratory relief because, in light of new policies
implemented by Baptist, they could not show a likelihood of future injury at
Baptist’s hospitals. After careful review, we affirm the district court’s standing
ruling, but we vacate the grant of summary judgment on the claims for monetary
relief and remand for further proceedings.
I. BACKGROUND
Plaintiffs Silva and Jebian are deaf and communicate primarily in American
Sign Language (“ASL”). In May 2014, they sued Baptist for violating their rights
under the RA and ADA by failing to provide appropriate auxiliary aids necessary to
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ensure effective communication with hospital staff. They sought monetary damages
and declaratory and injunctive relief.
Plaintiffs alleged that they visited Baptist’s hospitals on numerous occasions
from 2009 to 2014 as patients or as a patient companion. While they requested live
on-site ASL interpreters for most visits, the hospital relied primarily on an
alternative communication method called Video Remote Interpreting (“VRI”). With
this internet-connected machine, a live ASL interpreter is located remotely and
communicates with the doctor and patient through a portable screen located in the
hospital. Plaintiffs alleged that the VRI machines routinely did not work, and
hospital staff would instead rely on family-member companions for interpretive
assistance or exchange hand-written notes. Sometimes, after a VRI breakdown, an
ASL interpreter would be called to assist with communication in person.
The district court granted summary judgment to Baptist. The court found that
Plaintiffs lacked Article III standing for injunctive relief and that they had not shown
a genuine dispute as to any material fact regarding a violation of the RA and ADA.
The court concluded that the denial of the requested auxiliary aids did not result in
any adverse medical consequences or inhibit their communication of the “chief
medical complaint” or “instructions under the treatment plan.”
Plaintiffs appealed, and we vacated and remanded for further proceedings.
Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 831 (11th Cir. 2017). First, we
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held that the court “erroneously denied prospective injunctive relief on the basis of
Article III standing, concluding in error that Plaintiffs did not show they were likely
enough to return to the hospitals in the future or otherwise to suffer discrimination
again at those facilities.” Id. “[G]iven Plaintiffs’ numerous visits to Defendants’
facilities and the wealth of evidence showing repeated VRI malfunctions,” we
reasoned that there was “good reason to believe” that the VRI malfunctions “will
continue to happen at Defendants’ facilities when Plaintiffs do return,” which was
enough to establish standing for injunctive relief. Id. at 832–33.
Second, we found that the district court applied an incorrect standard for
Plaintiffs’ effective-communication claims. Id. at 833–35. We explained that
Plaintiffs did not need to establish an adverse consequence resulting from an
inability to communicate effectively. Id. Rather, the focus is on “the equal
opportunity to participate in obtaining and utilizing services.” Id. at 834 (emphasis
in original). Therefore, the proper inquiry is “whether the hospital provided the kind
of auxiliary aid necessary to ensure that a deaf patient was not impaired in
exchanging medically relevant information with hospital staff.” Id. at 835.
Ineffective communication occurs, we stated, “if the patient experiences a real
hindrance, because of her disability, which affects her ability to exchange material
medical information with her health care providers.” Id.
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We noted, however, that this standard “does not mean that deaf patients are
entitled to an on-site interpreter every time they ask for it.” Id. “If effective
communication under the circumstances is achievable with something less than an
on-site interpreter, then the hospital is well within its ADA and RA obligations to
rely on other alternatives.” Id. at 836. We stated that this inquiry is “inherently fact-
intensive” and, as a result, “an effective-communication claim often presents
questions of fact precluding summary judgment.” Id.
Applying the proper standard, we concluded that a reasonable jury could find
that Baptist’s failure to offer appropriate auxiliary aids impaired Plaintiffs’ ability to
exchange medically relevant information with hospital staff. Id. at 836–40. But we
did not go further and address whether Plaintiffs had proved Baptist’s deliberate
indifference, which was necessary to win monetary relief, because the district court
had not addressed that issue. Id. at 841.
On remand, the parties filed supplemental summary-judgment briefing
regarding the issue of deliberate indifference. After holding a hearing, the district
court entered an order granting summary judgment on that issue to Baptist. The
court found no evidence that Baptist was “actually aware of any instance in which
[hospital staff] communicated ineffectively with Plaintiffs.” The court noted that
hospital staff attempted to provide alternative aids when they did not obtain a live
interpreter or working VRI machine, that there was no evidence that Plaintiffs “ever
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complained to or informed Defendants that they were not receiving proper
assistance” at the time of treatment, and that the mere fact that the VRI machines
malfunctioned on occasion was not sufficient to establish deliberate indifference.
Thus, the court entered partial summary judgment on Plaintiffs’ claims for monetary
damages.
The district court then held a bench trial in November 2018 on Plaintiffs’
claims for declaratory and injunctive relief. At trial, Baptist presented evidence that
beginning in 2014 or 2015, it revised its policies to require the provision of live in-
person interpreters upon request by a patient or guest, to provide VRI while waiting
for a live interpreter, and to schedule live interpreters for scheduled appointments.
Baptist’s witnesses testified that these policies had been consistently implemented
since they were adopted. Based on this new evidence, the district court concluded
that, at the time of trial in November 2018, Plaintiffs lacked Article III standing for
injunctive or declaratory relief because there was no evidence that they would suffer
future discrimination if they returned to Baptist’s hospitals. So the court dismissed
their claims for injunctive or declaratory relief for lack of standing, and Plaintiffs
timely appealed.
II. STANDARDS OF REVIEW
We review a district court’s grant of summary judgment de novo, viewing the
evidence and drawing all reasonable inferences in favor of the non-moving party.
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Crane v. Lifemark Hosps., Inc., 898 F.3d 1130, 1133–34 (11th Cir. 2018). Summary
judgment is appropriate if “the movant shows that 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). When a district court dismisses a claim for lack of standing, we review
the court’s legal conclusions de novo and its factual findings for clear error.
McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1141 (11th Cir.
2014); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013)
(“[W]e review the district court’s legal conclusions de novo, including the court’s
conclusion concerning standing.”).
III. DISCUSSION
Claims under the RA and ADA are “governed by the same substantive
standard of liability.” Silva, 856 F.3d at 830. “To prevail, a disabled person must
prove that he or she was excluded from participation in or denied the benefits of the
hospital’s services, programs, or activities, or otherwise was discriminated against
on account of her disability.” Id. at 831; see 42 U.S.C. § 12182(a); 29 U.S.C.
§ 794(a). Under this standard, a hospital violates the RA and ADA when it “fails to
provide ‘appropriate auxiliary aids and services’ to a deaf patient, or a patient’s deaf
companion, ‘where necessary to ensure effective communication.’” Silva, 856 F.3d
at 831 (quoting 28 C.F.R. § 36.303(c)(1)).
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Deaf patients are not “entitled to an on-site interpreter every time they ask for
it,” however. Id. at 835. “If effective communication under the circumstances is
achievable with something less than an on-site interpreter, then the hospital is well
within its ADA and RA obligations to rely on other alternatives.” Id. at 836.
Whether a particular aid is effective “largely depends on context, including,
principally, the nature, significance, and complexity of treatment.” Liese v. Indian
River Cty. Hosp. Dist., 701 F.3d 334, 343 (11th Cir. 2012).
A deaf plaintiff may be entitled to injunctive relief upon a showing that the
hospital failed to provide a means of effective communication. Silva, 856 F.3d at
831. But “[t]o recover monetary damages, a disabled person must further show that
the hospital was deliberately indifferent to her federally protected rights.” Id.
We have already concluded that a reasonable jury could find that Baptist’s
failure to offer appropriate auxiliary aids impaired Plaintiffs’ ability to exchange
medically relevant information with hospital staff. Id. at 836–40. The questions
before us now are (1) whether that past failure was the result of “deliberate
indifference,” such that Plaintiffs can recover monetary damages, and (2) whether
Plaintiffs are likely to experience ineffective communication in future visits.
A. Deliberate Indifference
We begin with the issue of deliberate indifference. In this context, deliberate
indifference occurs “when the defendant knew that harm to a federally protected
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right was substantially likely and . . . failed to act on that likelihood.” Liese, 701
F.3d at 344 (quotation marks omitted). “[D]eliberate indifference requires that the
indifference be a deliberate choice, which is an exacting standard.” Id. (citation and
quotation marks omitted). Negligence alone is not enough. Id. In other words, the
plaintiff “must show ineffective communication done with knowledge that it was
substantially likely to occur.” Crane, 898 F.3d at 1135.
Here, we find that there is sufficient evidence for a reasonable jury to conclude
that Baptist was deliberately indifferent to Plaintiffs’ federal rights.1 Plaintiffs
requested an in-person interpreter during most of their visits to Baptist’s hospitals,
putting hospital staff on notice that they required an interpretive aid. Despite these
requests, the hospitals relied primarily on VRI; ordinarily a live, in-person
interpreter would be called to help only when VRI proved ineffective or inadequate.
While the choice to rely primarily on VRI instead of in-person interpreters
alone does not establish deliberate indifference, Liese, 701 F.3d at 343 (“[T]he
simple failure to provide an interpreter on request is not necessarily deliberately
indifferent to an individual’s rights under the RA.”), the plaintiffs presented
substantial evidence that the VRI machines routinely failed to facilitate effective
1 We review the district court’s grant of summary judgment on the issue of deliberate indifference based on the summary-judgment record as it existed at the time of the district court’s decision. We do not consider the evidence subsequently produced at the bench trial on Plaintiffs’ claims of injunctive relief. 9 USCA11 Case: 19-12386 Date Filed: 12/03/2020 Page: 10 of 18
communication. See Silva, 856 F.3d at 836–40. Sometimes the VRI picture would
be choppy, unclear, or would cut out, and sometimes the VRI machine failed to
operate at all. See id. In Silva, we described how the malfunctioning of the VRI
machines “could generate a reasonable inference of an impaired informational
exchange” that was likely to occur each time Plaintiffs visited Baptist’s hospitals.
Id. at 837, 832.
Given that Plaintiffs “routinely” experienced these VRI malfunctions at
Baptist’s hospitals over a period of several years, a jury could reasonably infer that
hospital staff knew that the continued reliance on VRI as an interpretive aid, without
correcting its deficiencies, was “substantially likely” to result in the impaired
informational exchange experienced by Plaintiffs. See Crane, 898 F.3d at 1135;
Silva, 856 F.3d at 840 (noting that Jebian, in tending to decline the use of VRI at
Baptist’s hospitals, “acted reasonably in anticipating that the VRI would not
facilitate effective communication”). A jury could thus conclude that Plaintiffs
experienced instances of ineffective communication as a result of a “deliberate
choice” by Baptist officials, rather than mere negligence. See Liese, 701 F.3d at 344.
B. Standing
Next, we consider whether Plaintiffs Silva and Jebian have standing to obtain
prospective injunctive relief. “To satisfy the injury-in-fact requirement for
constitutional standing, a plaintiff seeking injunctive relief in relation to future
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conduct must show a sufficient likelihood that he will be affected by the allegedly
unlawful conduct in the future.” Silva, 856 F.3d at 832 (quotation marks omitted).
The threat of future injury must be real and immediate, not merely conjectural or
hypothetical. Id. “To establish such a threat, each patient must show that (1) there
is a real and immediate likelihood that he or she will return to the facility and (2) he
or she will likely experience a denial of benefits or discrimination upon their return.”
Id. (quotation marks omitted). The district court found that the first element was
met but the second was not.
Plaintiffs make two main arguments in support of their contention that the
district court erred in dismissing their injunctive relief claims for lack of standing.
First, they contend that the district court violated the mandate rule and the doctrine
of law of the case in finding that they lacked standing. Second, they assert that the
court was required to determine whether Baptist’s policies rendered their claims
moot, not whether the policies deprived them of standing.2
1. The doctrine of law of the case does not apply
Plaintiffs first argue that our holding in Silva that the plaintiffs “have Article
III standing to proceed with their claims for injunctive relief,” Silva, 856 F.3d at 833,
2 The plaintiffs also assert that a court “must first determine whether there has been a violation of the statute[s]” before assessing whether injunctive relief is appropriate. But standing under Article III is a “threshold matter required for a claim to be considered by the federal courts.” Via Mat Int’l S. Am. Ltd. v. United States, 446 F.3d 1258, 1262 (11th Cir. 2006). 11 USCA11 Case: 19-12386 Date Filed: 12/03/2020 Page: 12 of 18
is binding in this appeal under the doctrine of law of the case and that the district
court violated our mandate by concluding otherwise. We disagree.
“The mandate rule is a specific application of the ‘law of the case’ doctrine[,]
which provides that subsequent courts are bound by any findings of fact or
conclusions of law made by the court of appeals in a prior appeal of the same case.”
Friedman v. Market St. Mortg. Corp., 520 F.3d 1289, 1294 (11th Cir. 2008)
(quotation marks omitted). A trial court may not alter, amend, or act contrary to the
mandate of an appellate court regarding issues that were “decided expressly or by
necessary implication.” Id. (quotation marks omitted). However, “the law of the
case doctrine does not apply to bar reconsideration of an issue when (1) a subsequent
trial produces substantially different evidence, (2) controlling authority has since
made a contrary decision of law applicable to that issue, or (3) the prior decision was
clearly erroneous and would work manifest injustice.” Wheeler v. City of Pleasant
Grove, 746 F.2d 1437, 1440 (11th Cir. 1984) (quotation marks omitted).
Here, the first exception to the law-of-the-case doctrine applies. The district
court was required to assess Plaintiffs’ standing at the time of trial in November
2018. See United States v. Amodeo, 916 F.3d 967, 971 (11th Cir.), cert. denied, 140
S. Ct. 526 (2019) (“To have a case or controversy, a litigant must establish that he
has standing, which must exist throughout all stages of litigation.” (quotation marks
omitted)). And at trial, Baptist presented new evidence regarding its hospitals’
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policies beginning in 2014 or 2015. This evidence was not part of the summary-
judgment record when we decided Silva in May 2017, and it showed that Baptist
implemented policies mandating live in-person ASL interpreters upon request. So
at the time of trial, there was new evidence that Baptist offered live in-person ASL
interpreters upon request, which Plaintiffs’ counsel admitted was more generous
than what federal law demanded.
Law of the case does not apply in this situation because the district court based
its standing decision on a different record than did this Court when addressing the
propriety of summary judgment. See Davis v. Town of Lake Park, Fla., 245 F.3d
1232, 1237 n.1 (11th Cir. 2001) (“Law of the case does not apply in this situation
because [the later district judge] based his post-trial order on a different record than
did [the earlier district judge] when addressing summary judgment.”). “The first
exception to the doctrine recognizes that the law of the case is the law made on a
given set of facts, not law yet to be made on different facts.” Jackson v. State of Ala.
State Tenure Comm’n, 405 F.3d 1276, 1283 (11th Cir. 2005). Our decision in Silva
said nothing, either expressly or by necessary implication, about whether Plaintiffs
established standing based on the trial record, which was substantially different than
the summary-judgment record we considered in Silva. So, neither law of the case
nor the mandate rule applies. See Wheeler, 746 F.2d at 1440.
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To the extent Plaintiffs suggest it was inappropriate for the district court to
rely on Baptist’s new evidence, we disagree. “The request for declaratory and
injunctive relief ha[d] to be assessed in light of the revised [Baptist] policies that
were in place at the time of trial.” J.W. ex rel. Tammy Williams v. Birmingham Bd.
of Educ., 904 F.3d 1248, 1267 (11th Cir. 2018). While Plaintiffs hint at improper
motives behind Baptist’s failure to produce this evidence earlier, they fail to provide
any legal reason why the court could not have relied on it.
2. The district court did not err by failing to address mootness
Plaintiffs maintain that, because Baptist adopted new policies after the
allegedly discriminatory actions, the district court was required to determine whether
such policies rendered their claims moot. And they contend that this case is not moot
for a variety of reasons. But their arguments miss the mark.
The Supreme Court has often remarked that “the doctrine of mootness can be
described as the doctrine of standing set in a time frame: The requisite personal
interest that must exist at the commencement of the litigation (standing) must
continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quotation marks omitted). But
this description “is not comprehensive.” Id. Standing and mootness, though they
both arise from Article III’s case-or-controversy requirement, are “distinct doctrines
that must not be confused.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173,
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1189 n.16 (11th Cir. 2007). And there will be “circumstances in which the prospect
that a defendant will engage in (or resume) harmful conduct may be too speculative
to support standing, but not too speculative to overcome mootness.” Friends of the
Earth, 528 U.S. at 190; see Sheely, 505 F.3d at 1182 n.10 (“Even though a case is
not moot, that does not mean that injunctive relief follows automatically;
undoubtedly, injunctive relief requires something more than the mere possibility
which serves to keep the case alive.” (quotation marks omitted)).
Here, the district court did not err by failing to consider mootness. Plaintiffs
were required to establish their standing to seek prospective injunctive relief based
on “evidence adduced at trial.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992)
(quotation marks omitted); see Amodeo, 916 F.3d at 971 (“To have a case or
controversy, a litigant must establish that he has standing, which must exist
throughout all stages of litigation.”). Baptist’s revised policies, which were in place
at the time of trial, were relevant to the inquiry. Therefore, the likelihood of future
injury to Plaintiffs—specifically the likelihood they will experience a denial of
benefits or discrimination upon their return to Baptist’s hospitals—“ha[d] to be
assessed in light of the revised [Baptist] policies that were in place at the time of
trial.” J.W., 904 F.3d at 1267; see id. at 1267–69 (holding that, in light of revised
policies that were adopted before trial, the plaintiffs failed to establish a likelihood
of future injury sufficient to provide standing to obtain declaratory and injunctive
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relief). Because standing and mootness are distinct doctrines, and even assuming
Baptist’s revised policies did not moot the case, the district court was permitted to
conclude that Plaintiffs did not have standing to obtain prospective injunctive relief.
See Friends of the Earth, 528 U.S. at 190; Sheely, 505 F.3d at 1182 n.10.
3. The district court properly concluded that Plaintiffs lacked standing
Plaintiffs do not directly challenge the district court’s findings of fact and
conclusions of law regarding their standing to obtain declaratory or injunctive relief.
As a result, apart from the arguments we have discussed and rejected above,
Plaintiffs have abandoned any challenge to the grounds offered by the district court
for its standing determination. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 680–81 (11th Cir. 2014) (explaining that issues not plainly and prominently
raised on appeal are deemed abandoned). “[I]t follows that the judgment is due to
be affirmed.” Id.
In any event, the district court did not err in finding that Plaintiffs failed to
prove a real and immediate, as opposed to merely conjectural or hypothetical, threat
of future injury at Baptist’s hospitals. See Silva, 856 F.3d at 832. Even assuming
Plaintiffs established that there was a real and immediate likelihood that they will
return to Baptist’s hospitals, the court’s finding that they will not “likely experience
a denial of benefits or discrimination upon their return” is well supported by the trial
record. Id. (quotation marks omitted).
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In particular, the district court did not clearly err in finding that, at least since
2015, Baptist had implemented policies at its hospitals that mandated providing live,
in-person ASL interpreters upon a patient’s or a guest’s request. See McCullum, 768
F.3d at 1141. In making that finding, the court credited the testimony of multiple
witnesses for Baptist, who described these policies during a November 2018 bench
trial. According to these witnesses, hospital staff did not have discretion to deny
such a request, the hospitals would arrange for an interpreter to be present for
scheduled appointments at the time of the appointment, and hospital staff would no
longer rely on friends or family for interpretation purposes. In addition, the court
found that Plaintiffs had not offered any evidence to contradict Baptist’s witnesses
on these points, such as evidence of ineffective communication during their visits
since the implementation of the new policies in 2014 and 2015. Likewise on appeal,
Plaintiffs do not identify any evidence to contradict the district court’s findings.
Based on the district court’s well-supported findings, it is not likely that
Plaintiffs will “experience a denial of benefits or discrimination upon their return”
to Baptist’s hospitals. Silva, 856 F.3d at 832 (quotation marks omitted). So they
have not established a real and immediate threat of future injury. Id. The court
therefore properly dismissed their claims for injunctive relief for lack of standing.
IV. CONCLUSION
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In sum, we vacate the district court’s grant of summary judgment on
Plaintiffs’ claims for monetary relief, concluding that they have presented sufficient
evidence of deliberate indifference. We affirm the court’s dismissal for lack of
standing on their claims for prospective declaratory and injunctive relief.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.