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Hammond v. University of Southern Mississippi

United States District Court, S.D. Mississippi, Eastern Division

November 14, 2018

DEVEN HAMMOND PLAINTIFF
v.
UNIVERSITY OF SOUTHERN MISSISSIPPI DEFENDANT

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         For the reasons provided below, the Court denies in part Defendant's Motion to Dismiss [14]. 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.

         I. Background

         Plaintiff 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 restrictions.

         During 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 to play.

         Plaintiff 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 [14]. 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 [14].

         II. Discussion

         To 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).

         A. ADA

         1. Sufficiency of Plaintiff's Allegations

         First, 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. § 12102(1).

         “An 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).

         Plaintiff 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 [1], 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.

         For a “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 ...


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