United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
reasons provided below, the Court denies in
part Defendant's Motion to Dismiss . The
Court declines to address whether Defendant enjoys sovereign
immunity against Plaintiff's claim under Title II of the
ADA, but the Court denies the motion in all other respects.
was a student and football player at the University of
Southern Mississippi, and he only has one kidney. According
to Plaintiff, USM's football staff enticed him to
transfer to USM by offering a full scholarship if he worked
his way onto the team's two-deep roster. After Plaintiff
transferred, he received a physical evaluation at USM's
Student Health Services Center. The report noted that
Plaintiff had only one kidney but cleared him to play without
a team practice, Plaintiff mentioned to one of the trainers
that he only had one kidney. The trainer immediately removed
Plaintiff from practice and took him to the team physician.
The physician did not clear Plaintiff to play, citing the
potential liability to USM if he were injured. Plaintiff
sought a second opinion as permitted by USM's Sports
Medicine Policies and Procedures, and his nephrologist stated
that no restrictions were necessary. Plaintiff also offered
to execute a waiver of liability. But USM would not allow him
filed this lawsuit against USM in the United States District
Court for the Middle District of Louisiana. He asserted,
among other things, claims of discrimination under the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act. Defendant filed a Motion to Dismiss .
The Middle District of Louisiana transferred the case to this
Court after finding it lacked personal jurisdiction over USM
and deferred ruling on the ADA and Section 504 claims. After
the transfer, this Court had the parties file supplemental
briefs, and it now addresses the remaining portions of
Defendant's Motion to Dismiss .
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Great Lakes Dredge & Dock Co. LLC v. La.
State, 624 F.3d 201, 210 (5th Cir. 2010) (punctuation
omitted). “To be plausible, the complaint's factual
allegations must be enough to raise a right to relief above
the speculative level.” Id. (punctuation
omitted). The Court must “accept all well-pleaded facts
as true and construe the complaint in the light most
favorable to the plaintiff.” Id. But the Court
will not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.”
Id. Likewise, “a formulaic recitation of the
elements of a cause of action will not do.” PSKS,
Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d
412, 417 (5th Cir. 2010) (punctuation omitted). “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct.
1937, 1950, 173 L.Ed.2d 868 (2009).
Sufficiency of Plaintiff's Allegations
Defendant argues that Plaintiff did not plead sufficient
facts to demonstrate that he has a disability as defined by
the ADA. To establish a claim of discrimination under the
ADA, a plaintiff must prove: “(1) that he has a
qualifying disability; (2) that he is being denied the
benefits of services, programs, or activities for which the
public entity is responsible, or is otherwise discriminated
against by the public entity; and (3) that such
discrimination is by reason of his disability.”
Miraglia v. Bd. of Supervisors, 901 F.3d 565, 574
(5th Cir. 2018). The ADA defines “disability” as
“(A) a physical or mental impairment that substantially
limits one or more major life activities of such individual;
(B) a record of such impairment; or (C) being regarded as
having such an impairment . . . .” 42 U.S.C. §
individual meets the requirement of ‘being regarded as
having such an impairment' if the individual establishes
that he or she has been subjected to an action prohibited
under [the ADA] because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” 42 U.S.C.
§ 12102(3)(A). Therefore, “for a regarded-as
claim, a plaintiff is not required to establish her employer
believed her impairment was substantially limiting; all that
is required is proof the employer knew of an impairment or
erroneously perceived one.” Williams v. Tarant
County College District, 717 Fed.Appx. 440, 449 (5th
Cir. 2018); see also Burton v. Freescale Semiconductor,
Inc., 798 F.3d 222, 230 (5th Cir. 2015).
alleged that he only has one kidney. Complaint at 2,
Hammond v. Univ. of S. Miss., No. 2:18-CV-150-KS-JCG
(S.D.Miss. Nov. 29, 2017), ECF No. 1. It appears to be
undisputed that this constitutes a “physical
impairment, ” as contemplated by the ADA. See
42 U.S.C. § 12102(1). Plaintiff alleged that
Defendant's Head Athletic Trainer, Todd McCall, removed
him from practice after learning he only had one kidney.
Complaint , at 3. Plaintiff also alleged that
Defendant's team physician would not clear him to play
football because he only had one kidney. Id. He
alleged that McCall continued to hold him from practice after
receiving a report from his nephrologist, based on the belief
that playing football with one kidney posed a liability issue
for the school and a danger to Plaintiff's health.
Id. at 4. Finally, Plaintiff alleged that agents of
Defendant's athletic department told other schools that
he did not pass a physical because he had only one kidney.
Id. at 5.
“regarded-as” discrimination claim, Plaintiff is
not required to allege or prove that the impairment
substantially limited a major life activity, or that
Defendant believed it did. All that Plaintiff has to show is
that Defendant knew of the impairment and withheld public
services or benefits because of it. 42 U.S.C. §
12102(1), (3)(A); Burton, 798 F.3d at 230;
Williams, 717 Fed.Appx. at 449. The allegations
listed above, accepted as true, are ...